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8. The eyewitness account given by Hari Singh (PW1) before the trial court is required to be stated in necessary details for the purpose of appreciating and weighing the prosecution case. This version of the incident given by him is that on 15.10.1994 at about 8.30 in the morning he was proceeding with his son Harjinder Singh (deceased) towards their field. They reached near a circular road and at the place where their stock of wood was lying. Accused No. 2, Varinderjit Singh @ Vicky armed with a "Kirpan, Ajaib Singh acquitted accused No. 4 armed with a Gandhali and Tarsem Singh (who died during trial) armed with Dang came on a tractor. They were abusing the deceased and shouting that 'they would teach him a lesson.' The witness then raised an alarm 'Mar Ditta-Mar Ditta' whereupon his brother Ajit Singh (not examined), Darshan Singh s/o Ajit Singh (PW5), Sandeep Singh (not examined) and Gurvinder Singh PW3 came there. Accused No. 2, Varinderjit Singh (Vicky) inflicted a Kirpan blow on the deceased which hit him on his right elbow, Tarsem Singh, the co-accused who died during the trial gave a Dang blow to deceased Harjinder Singh on the back of his shoulder. Ajit Singh (not examined), Darshan Singh PW5 and Gurvinder Singh, PW3 tried to rescue the deceased and in the process they also received injuries. Accused Varinderjit Singh @ Vicky also inflicted a Kirpan blow on the leg of Darshan Singh PW5. Ajit Singh, who is not examined as witness, also received two injuries on the left leg by blows of Kirpan inflicted by Varinderjit Singh @ Vicky.

The conviction of the accused Harjit Singh (A-1), therefore, deserves to be maintained under Section 302 IPC for causing death of the deceased.

25. We shall now take up for consideration the cases of convicted accused Varinderjit Singh @ Vicky (A-2) and Gursharan Singh (A-6).

Case against the accused Varinderjit Singh @ Vicky (A-2).

26. As per the eye-witness account, accused Varinderjit Singh @ (A-2) was member of the first party who went on tractor to the spot with a Kirpan.

27. Learned counsel firstly submits that accused (A-2) who was a member of the first party could not have been convicted under Section 302 with aid Section 34 of IPC by attributing common intention to him with co-accused Harjit singh who shot at and killed the deceased. It is submitted that the case of prosecution is that the deceased died by fire arm injuries caused to him by accused Harjit Singh (A-1). The medical evidence also supports the version that the three injuries Nos. 1, 2 and 3 could have been caused by one bullet. There is an entry wound and exist-wound and a deep injury on forearm from which a cartridge embedded in the muscles was recovered as per the post-mortem report of the deceased. In the opinion of the Autopsy Surgeon, one revolver shot could have caused all the three injuries. Other three injuries including one said to have been caused on the head of the deceased was not found to be a fire arm injury. The accused (A-2), it is argued, only carried a Kirpan and was a member of the first party who came on tractor. This accused and other two co-accused who accompanied him on tractor could not have expected that on hearing Raula or commotion, accused (A-1) would appear on the scene with a revolver and would fire at the deceased. If at all the common intention is to be attributed to three accused who came on tractor and on reaching the spot caused injuries to members of complainant party, at worst show their common intention to cause injuries to the deceased to teach him a lesson for encroaching on the disputed land and for his obstinate attitude. The members of the first party only inflicted simple and grievous injuries to the members of complaining party. They did not inflict any serious injuries on any vital party of the body of the deceased. The cause of death of deceased was not due to any injuries caused to him by any of the three accused who first came on a tractor.In these circumstances, with the aid of Section 34 of IPC, accused (A-2) could not have been convicted under Section 302 of IPC for the fatal shot by fire arm of the accused (A-1) who was a member of the second party and had reached the place of occurrence little after the first accused party had arrived.

29. We have now to consider whether the conviction of accused (A-2) is sustainable under Sections 307, 323, 324 and 326 read with Section 34 of IPC.

30. As against accused Varinderjit Singh @ Vicky, Hari Singh PW1 has stated that accused Vicky had inflicted a Kirpan blow to the deceased which hit him on his right elbow. Thereafter he is alleged to have inflicted a Kirpan blow on the leg of Darshan Singh PW5. The witness in cross-examination admits that allegation against Vicky that he gave two Kirpan blows also to Ajit singh on his left leg was not told to the police in his statement under Section 161 Cr.P.C. Ajit Singh has not been examined.

31. The other eyewitness PW3 Gurvinder Singh corroborates PW1 in stating that Vicky came with the first party holding a Kirpan. On the alleged part played in the incident by Vicky, this witness states that a Kirpan blow was inflicted by him on the deceased on his right elbow but he admits that he did not mention the fact to the police in his statement under Section 161 Cr.P.C. He also admits that he did not tell anyone in the village as to how he received injuries. As per the defence taken by accused Vicky in the course of cross-examination of eyewitnesses and his statement under Section 313 Cr.P.C., he was present at the place of occurrence. He states that accused No. 1 Harjit Singh fired at the deceased in his defence.