D.G. DESHPANDE, J.:---Appeal No. 336 of 1996 is filed by the State against the acquittal of original Accused Nos. 2 and 4 to 12. Appeal No. 371 of 1996 is filed by original accused No. 2 against his conviction and Appeal No. 135 of 1996 is filed by original accused No. 1 and 3 against their conviction.

2.All the accused Nos. 1 to 12 have been prosecuted under section 302 read with section 149 of the Indian Penal Code, under sections 326, 307 read with section 34 of the Indian Penal Code, under section 27 of the Arms Act read with section 34 of the Indian Penal Code and separately under sections 147, 148 and 149 of the Indian Penal Code.

3.All the Accused Nos. 1 to 12 were acquitted for the offences punishable under sections

147, 148 and 149 of the Indian Penal Code. And out of 12 accused, Accused Nos. 1, 2, 3, 7 and 8 have been convicted. Accused Nos. 1 and 3 are convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life. Accused Nos. 7 and 8 are convicted under section 326 of the Indian Penal Code and each is sentenced to suffer R.I. for four years and to pay fine of Rs. 500/-, in default to suffer further R.I. for three months. Accused No. 2 is convicted under section 307 of the Indian Penal Code and sentenced to suffer R.I. for seven years and to pay fine of Rs. 500/- in default to suffer further R.I. for three months. Accused Nos. 1, 2 and 3 are convicted under section 27 of the Arms Act read with section 34 of the Indian Penal Code and each is sentenced to suffer R.I. for three months.

4.It is in this background the State has filed an appeal against the acquittal of the other accused for the substantive offences and the offences under sections 147, 148 and 149 of the Indian Penal Code, and the Accused Nos. 1 and 3 and 2 have filed their appeals against their convictions. It appears from the record that Accused Nos. 7 and 8 viz. Eknath Mahadu Patil and Barashya Babu Bhoir respectively, have not filed any appeal against their conviction under section 326 of the Indian Penal Code by which they were sentenced to suffer R.I. for four years and fine etc.

5.The facts of the prosecution case are as under :

Prosecution Witness No. 1 Baliram Pandurang Bhoir owned an agricultural field bearing Survey No. 93 Hissa No. 2 at Dahisar Naka. He had two sons so far as this case is concerned viz. Ramdas and Narayan, Ramdas died in the incident because of the bullet injury and other injuries to his person. Narayan was also one of the victims of the assault who received bullet injury, but he was survive. He is Prosecution Witness No. 2.

6.There was a dispute in respect of Survey No. 93 between Baliram Pandurang Bhoir (P.W. No. 1) on one side and accused Shankar Gopal Patil on the other side. Baliram Pandurang Bhoir, had, therefore got the land measured in April 1992 through a Government Surveyor. But at that time boundary marks could not be fixed, and therefore, it was decided to fix the boundary marks on next time. On 29th June 1992 cadastral surveyor Jogi was brought to the Survey No. 93 from Thane in a jeep by Baliram and his sons Narayan and Chandrakant. They came to the disputed field at about 12.00 noon. Some work was done by the cadastral surveyor Jogi. Thereafter, at about 1.00 p.m. survey work was stopped for lunch break.

7.The field is just near to Dahisar Naka. There are two ways from southern and eastern directions of the said field. Southern road is a tar road going to Dahisar village. Eastern road is a Kaccha footpath known as Walkan Road. There is a Agrawal garage along with compound wall which is adjacent to this kaccha road on the eastern side. At the time of incident there were two gates to Agrawal compound, one is on the eastern side and another on the southern side. From the gate at eastern side a footpath was available through the area of Agrawal compound going to Dahisar village through and by the side of field known as Chikan Shet.

8.As per the prosecution ca