JUDGMENT

Santosh Hegde, J.-State of Madhya Pradesh is in appeal before us against a judgment of the High Court of Madhya Pradesh at Jabalpur in Crl. A. No.825 of 1988 whereby the High Court allowed the appeal of the respondent herein and set aside the conviction and sentence imposed on him by the Additional Sessions Judge, Bhopal under Section 302, 380 and 457 of the IPC in ST No.90 of 1986.

2. Brief facts necessary for the disposal of this appeal are as follows:

According to the prosecution, Arun Kumar Mehta (PW-26) was a Typist working with a Member of Legislative Assembly who was residing in Quarter No.116/17, Shivaji Nagar, Bhopal and at that relevant point of time the said MLA was not in town and this PW-26 was occupying the garage attached to the house of the said MLA. On 13.2.1985 at about 10 p.m. PW-26 noticed some flashing of the light inside the unoccupied house of the MLA and apprehending that there was something wrong, he went to the house of Narayan Dubey (the deceased) who was living just behind the house of the MLA. At the request of PW-26, the said Narayan Dubey came out of the house with a sword in his hand along with him came a little later Dubey s son (PW-11) when t