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4. The learned Magistrate committed the case to the Court of Sessions. The learned Sessions Judge framed charges against the accused persons for the aforesaid offences to which they pleaded not guilty. By and large, the defence of the accused, as revealed from the cross-examination as well as statement under Sec. 313 of the Cr.P.C. is to the effect that on the day of Dasara, complainant Kishor and witness Kamali were seen by Walya -servant of accused No.1, in compromising position. Therefore, witness Atmaram called village panchayat meeting and in that meeting Walya narrated the whole incident and as there was hue and cry in the meeting, the meeting was dispersed. Thereafter, in order to teach a lesson, witness Kishor and other prosecution witnesses decided to assault Walya. Hence on 26.10.1986 at about noon time they tried to assault him and hence entered the house of the accused with whom Walya was working. The accused persons were not in the house, therefore, the witnesses pelted stones at the house of the accused. Thereafter, Walya went away and Kishor took the gun of accused No.1 which was lying in the house of the accused. At that time, Kishor and others followed Walya and fired at the house of Janu suspecting that Walya had gone there and in the said firing Janu and others sustained injuries and ultimately Janu died.

13. The C.A. report regarding examination of the other articles seized by the police in the course of investigation is also in favour of the prosecution which would not require elaborate discussion because the factum of firing and consequent injuries to the persons concerned is not denied by the defence at all.

14. Turning to the defence theory regarding which much ado appears to have been made by the learned Trial Judge, it must be noted that it was the defence of the accused persons that Walya - the servant of accused No.1, had witnessed Kishor and Kamlabai in compromising position and, therefore, Atmaram called village panchayat meeting and there was commotion in the said meeting and hence the meeting dispersed. Then Kishor and Atmaram tried to assault Walya and, therefore, Walya entered the house of accused No.1 at which time Kishor brought the gun of Gajanan and handed it over to Tukaram and all of them went to Walya. Walya then ran away and finding that Walya is not in the house, the above persons pelted stones on the house of accused No.1. Then Kishor went inside the house. The accused was not there. Then Kishor took gun of accused No.1 and then Walya went inside the house of Janu due to fear and, therefore, Kishor started firing and in that firing Janu died and other persons got themselves injured. In our considered view, the basic defence of the respondents is to the effect that it was complainant Kishor and Kamlabai who were found in compromising position by Walya and, therefore, meeting was called by Atmaram. Firstly, this theory is negated by the evidence of two witnesses noted earlier including Kamlabai herself. Moreover, it is utterly impossible that Atmaram would call meeting of the village if his brother Kishor was found in compromising position with Kamlabai. On the other hand, in all probability he would try to suppress the matter. Thereafter it is also came to be suggested that Kishor entered the house of accused No.1, took gun of accused No.1 and fired and in the course of the said firing by Kishor, his own father Janu and other family members were injured. In our considered view, this theory of defence is seen to be not only improper but actually preposterous. It must be noted that Kishor himself is injured. Moreover, this stand is obviously taken as a feeble attempt to explain firing from the gun of accused No.1. Be that as it may, we are not at all impressed by the defence theory which ultimately appears to have found favour with the learned Trial Judge without any substantial foundation and disregarding the positive prosecution evidence including ocular testimonies on record.