JUDGMENT

This appeal is directed against the judgment of the High Court of Judicature at Allahabad delivered in Criminal Appeal No.1358 of 1980 dated 1st February, 2000 by which the High Court had acquitted all the five accused who were convicted and sentenced to undergo six months R.I. under Section 147 I.P.C., three years R.I. under Section 307/149 I.P.C. three months R.I. under Section 323/149 and to imprisonment for life under Section 302 read with Section 149 I.P.C. by the trial court.

Brief facts which are necessary to dispose of this appeal are recapitulated as under:- Members of the accused and complainant party are close relatives. In order to properly appreciate the relationship, the pedigree of the family is reproduced:

On 13.11.1977 a violent incident is alleged to have taken place between the accused and members of the complainant party, namely, Moti, Gharroo and his sons over share in plot No.165/2 measuring 1.88 decimals situated in Village Shivpurwa, P.S. Manduadih, District Varanasi. It is admitted case of the parties that Chhakkoo and his brother Panchu were original tenure holders of the said plot along with some other plots.

In a suit under Section 49 of the U.P. Tenancy Act, Moti, Gharroo and Lalloo obtained one half share in the joint Khata while the other half share went to descendants of Panchu, namely, Vinayak and others. Lalloo, Moti and Gharroo have since been recorded as co-tenure holders of the aforesaid plot along with other plots.

The dispute about the share between Lalloo on the one hand and Gharroo and Moti on the other started in the year 1965. Lalloo claimed one half share while according to Moti and Gharroo all the three daughters' sons Lalloo, Moti and Gharroo had equal share. Lalloo took the lead in asserting his claim by executing a sale deed in respect of 5 decimals of plot No.251/2 area 10 decimals in favour of Shivlal on 21.1.1965. He executed second sale deed in respect of 6 decimals of plot No.205/2 measuring 12 decimals in favour of Nand Lal and Lalloo sons of Dhanesh on 20.12.65. Moti deposited ten times land revenue of his one-third share in the disputed joint Khata comprising of plots Nos.109, 165/2, 182/2, 205/2 and 251/2 and filed a suit for division of holdings under Section 138 of the Zamindari Abolition and Land Reforms Act for 1/3rd share on 6.1.66. The suit was decreed ex parte on 10.1.1970 and mutation of this order was made in Khatauni 1376 F to 1378F. The ex-parte decree was, however, set aside on the application of Lalloo, father of the accused persons, after setting aside the ex parte decree on 19.2.1973. Thereafter the suit was proceeded in the revenue court. It was dismissed in default on 27.7.1977. The suit was ultimately restored on 21.2.1979 on the application of Moti and decided in his favour on 25.2.80 against which the appeal has been filed by the accused persons which is still pending.

After the death of Lalloo, his five sons succeeded to the property. According to the prosecution, the disputed plot No.165/2 is divided into two portions. One-third portion towards north has been in possession of the accused persons since the time of their father Lalloo while the two- third portion towards south is in the joint cultivation of Moti and Gharroo. There is a Merh between the portion in the occupation of the accused and that in the possession of Moti and Gharroo.

On 13.11.1977 at about 7.00 a.m. Tilakdhari PW.1 and his father Gharroo went to their portion of the plot in dispute along with the bullocks to plough the land. Immediately after they had started ploughing, all the accused persons arrived there. Accused Banne alias Baijnath and Binne alias Viswanath were armed with iron rods while the other accused Nanhe alias Narain, Bhola and Ramji were armed with sticks. The accused persons asked Tilakdhari, PW1 and his father to get out of the field. They refused to do so saying that the said portion of the field has been in their possession for a long time and that they would