( 1 ) BOTH the aforesaid appeals arise out of the common judgment dated 20-8- 1994 passed in Sessions Trial No. 259/92. This judgment shall also govern the disposal of Criminal Appeal No. 188/94 and Criminal Appeal No. 58/95. In Sessions Trial No. 259/92, eight accused persons were tried. Vide judgment dated 20-8-1994, III Additional Sessions Judge, Morena convicted Govind Sb Soneram under Section 302 IPC and sentenced him to imprisonment for life against which Govind has filed Criminal Appeal No. 188/94 challenging his conviction and sentence and acquitted the rest of the accused persons namely Brij Sf0. Soneram, Soneram Sf0 Gangaram, Ramnivas S/c Lajjaram, Durga Sb Soneram, Kalicharan Sb Lajjaram, Kaladhar Sb Lajjaram and Maniram Sf0 Lajjaram and against the acquittal of the aforesaid accused persons, State has filed Criminal Appeal No. 58/95 after obtaining leave from this Court. Both these appeals have been heard together and they are being decided by this common judgment.

( 2 ) IN short, the prosecution story is that on 19-8-1992 at about 9 AM in the morning, when complainant Kamlesh Sf0 Vrindavan, his brother Girraj, Bablu, Satish, Ashok and cousin Ramnivas were digging foundation at Raiju Wall place, just then Govind, Kalicharan, Ramnivas, Kaladhar, Brij, Durga, Maniram and Soneram armed with Lathi and Farsa came there and asked them not to dig the foundation. Ramnivas retorted that he has purchased the land from Maharaj Singh Jadon for a consideration of Rs. 7,500/- through registered sale deed therefore, he will dig foundation. Thereupon accused persons started beating them as a consequence of which Kamlesh P. W. 1 received injuries on his neck. In the meantime, Govind rushed and reached on his roof and from there fired from his mouser gun at Ramnivas hitting his head above the right ear. Ramnivas fell down. Thereafter Govind again fired two more shots from his gun. In the meantime, Kalicharan, Ramnivas Sb Lajjaram, Kaladhar, Brij, Durga, Maniram, and Soneram also beat Ramnivas by Lathi and Farsa and thereafter accused persons ran away from the spot and Ramnivas died.

( 3 ) KAMLESH P. W. 1 has lodged Dehati Nalishi on 19-8-1992 at 12. 30 noon at Village Ummedgarh Vansi under P. S. Bagchini, District Morena. On this report, crime was registered under Sections 302, 147, 148, 149, 294/34 IPC and matter was investigated. Deadbody was referred for post-mortem examination which was performed by Dr. S. K. Gupta P. W. 4. The accused persons were arrested and one 312 bore mouser gun was seized from the custody of Govind vide seizure memo Ex. P/12 and one brass case was recovered from the spot vide Ex. P/3 and iron parts of used cartridges, one big and two small pieces were also recovered from the spot vide seizure memo Ex. P/4 including blood stained and plain soil through seizure memo Ex. P/5 and the same was referred for examination to Forensic Science Laboratory Sagar. After investigation, charge-sheet was filed.

( 4 ) AT the trial, prosecution exami-ned as many as nine witnesses. After considering their evidence, trial Court convicted the accused Govind under Section 302 IPC and sentenced him to Life Imprisonment and acquitted the rest of the accused persons from the charges on the ground that prosecution has failed to prove the allegations against the rest of the accused persons. The trial Court also found that as per the prosecution evidence, injuries caused by the other accused persons have not been supported by medical evidence and also found that no unlawful assembly was formed by the remaining accused persons and they have not participated in the commission of crime with common object and acquitted them against which State has filed appeal after obtaining leave against acquittal and Govind has also filed separate appeal challenging his conviction.

( 5 ) SHRI J. P. Gupta, learned senior Advocate appeared for appellant Govind in Criminal Appeal No. 188/94 and vehemently argued that the trial Court has e