Decided on November 22,1982



R. B. Misra, J. - (1.) Special leave granted.
(2.) We heard Mr. Ram Jethmalani learned counsel for the appellants and learned counsel for the State of U. P.
(3.) The appellant Sarabjeet Singh and 17 other persons were put up on trial before the learned II Additional Sessions Judge, Gonda, in Sessions Trial No. A-65/74 for having committed offences under Sections 147, 427 read with 149, 323 read with 149 and 302 read with 149 of the Indian Penal Code, alleging that they committed murder of Radhey Shyam, an infant aged about 4 years, son of P.W. 1 Ghirau, by lifting him and throwing him on the ground. The genesis of the quarrel lies in a transaction of sale of land belonging to one Smt. Koela purchased by P.W. 1 Ghirau from accused 1 Sarabjeet Singh for a consideration of Rs. 1600/- three years prior to July 15, 1972, being the date of occurrence. This transaction of sale was not evidenced by any registered deed but P.W. 1 Ghirau claimed to be in possession and in order to assert his possession he proceeded to construct a wall on the nothern, eastern and southern sides of this land. He also constructed a 'Marha' in the north-eastern and another on the southern side of his ancestral land. He had put up a thatched room. There was a plot bearing No. 1146 belonging to Ghirau which is to the east of the land of accused 1 Sarabjeet Singh and Sarabjeet Singh was interested in purchasing this plot of land for which he approached Ghirau on a couple of occasions but Ghirau was in no mood to transfer this land. In the meanwhile, the village in which this land is situated was put into consolidation and by a quirk of fate, the name of the mother of accused 1 was entered on the land which he desired to purchase. When objections were raised, Sarabjeet Singh approached Ghirau to give a favourable statement before the authorities but he failed to persuade Ghirau. There was thus some embittered relationship between accused 1 Sarabjeet Singh and P.W. 1 Ghirau, the father of the unfortunate innocent victim. On July 15, 1972, P.W. 1 Ghirau, his other son P.W. 2 Pateshwari Prasad, his mother Smt. Koela and his wife Smt. Patiraji were present on their ancestral land in front of his house and the infant Radhey Shyam was playing, near about. At that time, led by accused 1, 17 other named accused and some other unknown and unidentified about 5-6 in number trespassed into the land. The miscreants carried spears and lathis. Accused 1 Sarabjeet Singh gave the usual 'lalkara' that the house of Ghirau be demolished and the inmates of the house be driven out. Accused 1 Sarabjeet Singh and Shobha attacked Ghirau and the remaining accused began demolishing the charni walls and the thatched shed. Smt. Koela came to the rescue of Ghirau but she was pushed aside with the help of a lathi and she suffered injuries. Accused Kameshwari struck a lathi blow on the head of P.W. 2 Pateshwari. At that time accused 1 Sarabjeet Singh lifted infant Radhey Shyam bodily and threw him with some force on the ground. It is the prosecution case that Radhey Shyam suffered some internal injuries and vornitted blood and soon fell into coma. Radhey Shyam was immediately carried to the house. Till about 11 O'clock no one was allowed to come out from the house and thereafter the accused and his companions left. P.W. 1 Ghirau proceeded to police station Lallia and lodged a report of the occurrence which was reduced to writing and is admitted in evidence as Ka-1. The names of accused 1 and 17 others were mentioned in the First Information Report. An offence was registered and P.W. 1 returned to his house when he found that Radhey Shyam had succumbed to his injuries. He returned to the police station and reported about the death of Radhey Shyam and the offence was altered to one under Section 304, IPC. After the usual investigation accused were charge-sheeted as mentioned above.;

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