JUDGMENT

KAILASAM, J.

( 1 ) THE first accused in Sessions Case No. 105/74 on the file of the Additional Sessions Judge, Delhi, is the appellant in this appeal. There were 8 accused before the Sessions Judge relating to an offence that was committed on the night between 30/06/1972 and 1/07/1972 at or near the shop No. 9 in Old Market, Tilak Nagar. The appellant was found guilty of an offence under Section 302, Indian Penal Code, and sentenced to imprisonment for life. It is necessary to refer to the convictions and sentences passed on the other accused. The appeal by the appellant to the High Court also failed and thus the matter is before us.

( 2 ) THE case of the prosecution may be briefly stated. The shop in or near about which the occurrence took place is shop No. 9 in Old Market, Tilak Nagar. This shop belonged to Viran Wali (P. W. 32 ). The front portion of the shop was let out to one Mehar Chand and in the back portion Viran Wali was residing. Between the two portions there was a partition wall. Two years after the letting Mehar Chand transferred possession of the shop to his brother, Sunder Dass, who was one of the accused in this case, but died pending trial. About two years prior to the occurrence Viran Wali asked Sunder Dass to vacate the shop as she needed it for her son, Sham Lal (P. W. 22 ). Sunder Dass was not willing to oblige and trouble started. On 5/09/1970, Sunder Dass lodged a report in the police station in Tilak Nagar alleging that Viran Wali with the help of Kashmiri Lal (deceased) had demolished the partition wall and forcibly occupied the shop. The police after inquiries bound down both the parties for keeping peace. Proceedings under S. 145, Criminal Procedure Code, were also initiated and shop sealed. A case against Viran Wali was registered under S. 448, Indian Penal Code, for demolition of the wall. She was found guilty of the offence. In the proceedings taken under Section 145, Criminal Procedure Code, the Sub-Divisional Magistrate on 29/06/1972, found that Sunder Dass was in possession of the shop within two months of the making of the preliminary order and accordingly directed that he be delivered possession of the shop. In pursuance of this order on 30/06/1972, at about 5 p. m. Hardeep Singh Sub-Inspector (P. W. 18) delivered possession of the shop to Sunder Dass.

( 3 ) AFTER obtaining possession Sunder Dass wanted to erect a partition wall in between the portions belonging to him and that occupied by Viran Wali. Sunder Dass collected bricks, sand, cement and other materials for putting up the construction, the same evening. But Viran Wali had not reconciled herself and was determined to prevent Sunder Dass from constructing the wall, at any event during the night.

( 4 ) AT about 11-45 p. m. on 30/06/1972, Kishan Lal (P. W. 21) was sitting on a cot outside his shop which is No. 8 adjacent to that of the shop in dispute. The prosecution case as unfolded by the testimony of Kishan Lal is that while he was sitting just opposite to the scene of occurrence Sunder Dass and Ghansham Dass, who is the appellant herein, were sitting in shop No. 9. At that time Kashmiri Lal Gulati, the deceased, who resided in a house across the lane on the back side of the shop, came to shop No. 9 and found Viran Wali weeping and complaining about the threat of construction of a partition wall by the accused. The deceased consoled her and went to the shop No. 9 and it is stated that he with folded hands asked Sunder Dass and the appellant not to insist on building the partition wall during the night and that they could do so in the morning. This request, it is stated, infuriated the appellant and Sunder Dass. They came out of the shop and shouted to the other accused who were sitting opposite. The words of vulgar abuse were used by the accused party but again the deceased requested the appellant and Sunder Dass not to construct the wall till the next morning. At that time the appellant and Sunder Dass went inside the shop