( 1 ) BEING aggrieved by the judgment date 8. 10. 2000 of conviction under Section 302/34 IPC and sentence of life imprisonment and fine of Rs. 5,000/- and in default of payment of fine further two years R. I. passed by Fourth Additional Sessions Judge, Bhind in S. T. No. 87/95 and 232/94, the appellant has filed this Criminal Appeal under Section 374 Cr. P. C.

( 2 ) AS per prosecution story, on 24. 11. 1993 one Suresh Sharma (P. W. I) lodged FIR at p. S. Baraso at 7 p. m. that or the same day at about 5. 30 p. m. he was sitting at the door of his house along with his grandfather jeevaram. At the same time appellant dataram came at their house with 12 bore gun along with Naresh Mohan, Manoj kumar, Ashok Kumar, Munnalal, mansharam and Suresh and they started throwing stones at their house and they were also abusing. It was alleged that jeevaram was having enmity with Dataram on account of some dispute of boundary of the land. Because of fire he and his grandfather Jeevaram both went on the roof of the house from where his grandfather asked them not to throw stones and asked why they are throwing stones. Thereafter all the accused persons surrounded their house and when his grandfather moved forward to see underneath from the roof and to say that what you are doing and will you not stop, at the same time Dataram fired at him from his. 12 bore gun. Jeevaram sustained firearm injury in the middle of skull and he fell down. He stained with blood and died. The fire was made by Dataram from the ground towards the roof. At that time Dataram was carrying gun of Chhotelal. Munnalal was carrying gun of Kedar, Naresh Mohan was carrying gun of Gendalal and Mansharam was carrying mouzer gun. Pooran was also there and he was carrying Topidar gun. It was his contention in the FIR that all fired from by their guns and thereafter when he saw that his grandfather has succumbed to the injuries, he also made two fires from his 12 bore gun and only then all the accused ran away from the spot. At the same time, bheekaram and Rameshwar Dayal came on the spot, who had seen the incident. On the basis of the aforesaid report, crime No. 22/93 was registered and after investigation, charge sheet was filed against ten accused persons. Before the trial court all the accused persons abjured their guilt. Their defence was that they are innocent and they have been implicated falsely. The defence of Gendalal was that he was not present on spot. The defence of Dataram was that because Jeevaram was intending to give his land to his sister's son, but Suresh was in-terested in grabbing his land, therefore it is suresh who has committed the murder of jeevaram. His defence was also that in that day he was. busy in assembly election and being Polling Agent his duty was on Polling booth at Simar where he remained present upto 8 p. m. and only after the ballet boxes were dispatched, he came back from the polling booth and he has been implicated falsely due to enmity and political rivalary. Mansharam, Suresh, Ashok, Munnalal, manoj Kumar, Pooranlal, Naresh Mohan also took the same defence that they were not present on the spot. ( 3 ) PROSECUTION examined as many as 19 witnesses and six witnesses were examined in defence. Dataram examined himself as defence witness under Section 351 Cr. P. G. Trial court found that there is no consistency in the evidence of the prosecution witnesses so far as the other accused persons are concerned and held that the prosecution has failed to prove the case of unlawful assembly but found that the prosecution has successfully proved that appellant Dataram fired at deceased and he died and trial court acquitted all other accused persons from the charges under Section 148,302/149 IPC, but only convicted the appellant under Section 302 IPC after discarding the defence evidence, against which the appellant has filed this appeal.

( 4 ) LEARNED counsel for the, appellant vehemently argued and submitted that there is no reliable an