SHYAM SUNDER BYAS, J. - (1.) AS the appeals are directed against one and the same judgment of the learned Additional Sessions Judged), Jodhpur dated September 29, 1976, they were heard together and are decided by a common judgement. By the impugned judgment, accused Karaniya was convicted under Section 302, IPC and sentenced to imprisonment for life. He has come up in appeal to challenge his conviction. The State has also come -up in appeal with a prayer that the appellant should also be convicted under Sections 325, 342 and 447, IPC.
(2.) PUT briefly, the prosecution case is that PW 14 Allahabux was allotted agricultural land Mauja Peeparla -ki -seed district Jaisalmer. He was cultivating it since the allotment. In Samvat Year 2027, Allahabux went with his live -stock to some other area. Taking advantage of his absence, accused Karaniya made unlawful possession over that field and started cultivating it. When Allahabux returned, he asked the accused to deliver possession of the fie do him. The accused refused to do so. Allahabux filed a civil suit against the accused for recovery of possession over the field. His suit was decreed and possession was delivered to him in execution of the decree before he incident took place. He then started living in this field by raising a Dhani therein. He had sown Gwar and Bajri crops in the field in 1975. At about 11.00 a.m. on July 19, 1975, the accused came with his wife and two sons and a camel. They placed their goods in the hut raised by PW 4 Allahabux. The accused threw away the goods of Allahabux lying in the hut. The accused had also a country -made single barrel gun. His sons had Gupti and sword while his wife had an axe. The accused asked Allaha Bux to leave the field. Allahabux claimed his possession and refused to leave the field. The accused thereupon tied Allahabux with a rope and put him a few yards away from the hut. When the numbers of his family came to his rescue, they were threatened by the accused that in case they tried to rescue him, they would be shot dead. Allahabux raised cries. At about 5.00 p.m., PW 1 Hussain, PW 3 Surta, PW 4 Balwant Ram, PW 5 Babra, PW 6 Abdullah and Illias came there in the field and asked the accused to set free Allahabux. Illias untied Allahabux. This irked the accused and he fired his gun at Illias. The shot hit Illias on his chest. He fell down and passed away instantaneously on the spot. The Station House Officer Jawansingh (PW 15) happened to go to village Peeparla on July 19, 1975. PW 1 Hussain appeared before him and verbally lodged report Ex.P 5 of the incident. The police registered a case under Section 302, IPC and proceeded with investigation. The SHO Jawansingh (PW 15) arrived on the spot, inspected the site, prepared the site plan and inquest of the victim's dead body. Hi collected blood -stained soil from the place of incident. The post -mortem examination on the victim's dead body was conducted at about 10.00 a.m. on July 20, 1975 by PW 12 Dr. S.P. Banerjee, the then CAS, Jawahar Hospital, Jaisalmer. The postmortem examination report prepared by him is Ex.PW 1. In the opinion of Dr. Banerjee, the death of the victim was caused due to syncope, shock and haemorrhage as a result of gun -shot injury to the vital organs, heart, lung and liver. The injuries of PW 1 Hussain and PW 3 Surta were also examined and one abrasion was found on the person of Hussain and one contusion was found on the person of Surta. The accused was arrested and in consequence of the information furnished by him, one gun was recovered. On the completion of the investigation, the police submitted a challan against the accused in the Court of the Chief Judicial Magistrate, Jaisalmer, who, in his turn, committed the case for trial. The case came for trial before the learned Additional Sessions Judge(1), Jodhpur, who framed a charge under Section 302, IPC against the accused, to which he pleaded not guilty and faced the trial. The defence taken by the accused was that the field, in which the incident had taken place, was allotted to him and he was in actual physical possession of it In the Revenue Records, the field was shown in his possession. No suit was decreed against him and the possession of the field was never taken from him and delivered to PW 14 Allahabux. In support of its case, the prosecution examined fifteen witnesses and filed some documents. In defence, the accused examined two witnesses and also filed some documents. On the conclusion of the trial, the learned Additional Sessions Judge found the charge duly brought home to the accused. He was consequently convicted and sentenced, as mentioned at the very out -set. Aggreived against his conviction, the accused has taken this appeal. The contention of the State is that the accused should have been also convicted under Sections 325, 342 and 447, IPC.
(3.) WE have heard the learned amicus curiae Mr. Rajendra Singhvi and the learned Public Prosecutor. We have also gone through the case file carefully.;