JUDGMENT

PUNCHHI, J.:- This appeal by special leave is directed against the judgment and order of the Punjab and Haryana High Court at Chandigarh dated April 19, 1979 passed in Criminal Appeal No. 843 of 1976.

2. The appellants herein are five in number. They along with four others were sent up for trial before the Court of Session, Faridkot on various charges as detailed in the judgment under appeal. Those four co-accused of the appellants were acquitted by the learned Sessions Judge, and the matter seems to have rested there because apparently the State of Punjab did not take up the issue against those four accused. On the basis thereof, the principal plea of the appellants through their counsel herein is that when four accused have been acquitted, the prosecution story itself has lost credence, entitling the appellants to acquittal. It is this plea which has engaged our attention.

3. The parties belong to village Talwandi Bhagerian, Distt. Faridkot, Punjab. There was a vacant plot belonging-to Harnek Singh, Jagatjit Singh and Wasakha Singh sons of Partap Singh, who were living abroad. Adjoining thereto was the outer house of Balwant Singh P.W. 15. According to the prosecution, Balwant Singh P.W. 15 had put up a boundary wall around it as also a structure thereon storing wheat chaff therein, besides putting cotton sticks and dung manure in the unbuilt space. Mohinder Singh son of the said Balwant Singh P.W. 15 moved the Civil Court through a suit on December 10, 1975 seeking a decree for permanent injunction restraining his co-villager Jiwan Singh, his sons Naib Singh appellants herein and Mohinder Singh an acquitted co-accused, as also the minor sons of the aforesaid two accused from interfering in his possession over the suit land. The court on December 10, 1975 granted interim injunction restraining the impleaded defendants from interfering with the possession of the plaintiff over the disputed plot. Later on the request of the defendants, the Civil Court on 29-1-1976 identified the suit property being in Khasra Nos. 345, 346 and 356 and out of the same vide Order Ex.D-16, vacated the temporary injunction in respect of Khasra Nos. 345 and 346 confirming the same in respect of Khasra No. 356. Besides there had been security proceedings between Mohinder Singh aforesaid and his brother Ginder Singh (one of the victims) on the one hand and Nirmal Singh and Darshan Singh acquitted co-accused and some others, on the other. However, both parties were ultimately discharged by the Court.

4. The occurrence took place in that interval on 16-12-1975 when the temporary injunction was in force. The complainant party except for P. Ws. 18 and 19 are members of one family. This relationship is disclosed in the judgment of the learned Sessions Judge as also by the High Court. We would not burden this judgment with details thereof. The fact remains that on the night intervening 15th and 16th December, 1975, Jugraj Singh P.W. 14, Balwant Singh P.W. 15, Ginder Singh, since deceased and Assa Singh had slept in a room in their outer house, and where they were keeping their cattle also. At about 8.00 a.m. on December 16,1975, all the inmates of the outer house, and others having joined them having come from their residential house, at that time were busy doing their assigned chores. At that juncture, the five appellants namely, Hoshiar Singh, armed with a SBBL gun, Jalaur Singh, armed with a .12 bore DBBL gun, Ex. M.O./5, Sardara Singh, armed with a gandasa, Ex. M.O./2, Ram Singh alias Ram Charan Singh, armed with a SBBL gun, Ex. M.O./6 and Naib Singh son of Jiwan Singh, armed with a DBBL gun, Ex. M.O./7 entered the house accompanied by five other men. They were the four acquitted co-accused namely, Thaman Singh, unarmed, Darshan Singh, armed with a gandasa, Mohinder Singh, son of Jiwan Singh (brother of Naib Singh appellant) armed with a spear, Nirmal Singh, armed with a rifle and Major Singh, the fifth man, armed with a DBBL gun, who was fatally