Judgment

FAZAL ALI J.:- This appeal by special leave is directed against a judgment dated November 4, 1974 of the Allahabad High Court by which respondents 1 to 4 were acquitted of the charges under Section 302/149 as also under S. 148 of the Indian Penal Code, of which they were convicted by the trial court of the Sessions Judge, Hardoi. The grotesque details of the various aspects of the prosecution case are to be found in the judgments of the trial court and the High Court and it is, therefore, not necessary for us to dwell or dilate on the comprehensive facts of the case and the circumstances which led to the conviction of the respondents by the Sessions Judge and their acquittal by the High Court.

2. In order however to appreciate the judgment of the High Court it may be necessary to give a bare and concise summary of the circumstances under which the occurrence had taken place. The occurrence as a result of which four persons died was undoubtedly a very unfortunate and ghastly one which arose out of a petty land dispute as a consequence of which the tempers of the parties ran so high that members of the prosecution party as also those constituting the party of the accused received injuries. Unfortunately, however, the prosecution party was the worst sufferer because on their side four persons died and one, namely, Sheo Narain (P.W. 2) was seriously injured.

3. It appears that there was some litigation between Brijraj Singh of the prosecution party and Shyam Behari of the accused party for the last eight or ten years before the occurrence. One of the deceased persons, Maheshwar, had lodged a report under Section 452 of the Indian Penal Code against Shyam Behari about six years before the occurrence. It was further alleged by the prosecution that P.W. 1, Chhotey Munna and Sarnam Singh (deceased) used to look after the field which belonged to their aunts, viz., Vidya Devi and Vimla Devi. The respondents alleged that a portion of the fields belonging to the ladies was encroached upon by Chhotey Munna and others who were looking after the land which was however denied by P.W. 1, Chhotey Munna, who pleaded with the accused to get proper measurements done and if any surplus area was found, to get the same back. It may also be mentioned here that the two fields belonging to the two widows (mentioned above) were towards the north of the fields of the respondents. It was alleged that on December 4, 1972 at about 4.00 a. m. P.W. 1, Chhotey Munna and Sarnam Singh (deceased) learnt that Shyam Behari, Ambika and Prag were trying to extend their field towards the north by encroaching on the field of the aunts of P.W. 1 and were actually constructing a new mend to cordon off the encroached portion from the land belonging to the widows. On hearing this news, P.W. 1, Chhotey Munna, Sarnam Singh (deceased) and Chhutkau Singh (deceased) went to the field of their aunts empty handed. On the way to the field they were joined by Kamla and Maheshwar (both deceased) who were armed with lathis. All the five persons went to the field and found Shyam Behari standing there armed with a spear, supervising the construction of the new mend with spades by Ambika and Prag who had encroached on the field belonging to the widows. The lathis of the accused as also a rope were lying there. On finding a portion of the land in question being encroached upon by the party of the accused, Sarnam Singh (deceased) protested to Shyam Behari who was bent on continuing the act of encroachment. This led to an altercation between the accused and the party of the prosecution but in the meantime Sahai armed with a licensed gun of Ambika, and Barakkey alias Krishan Kumar, armed with a spear, arrived at the scene of the occurrence from the village, and an altercation followed between the two parties in the course of which, according to the prosecution, Shyam Behari gave a spear blow to Sarnam Singh who caught hold of the spear while Kamla and Maheshwar wielded lathis in their