JUDGMENT :- This is an appeal under Section 2 of the SC (Enlargment of Criminal Appellate Jurisdiction) Act and is directed against a judgment of the Gujarat High Court by which the acquittal of accused Nos. 1, 2, 3 and 4 was reversed by the High Court and after reversal the respondents were convicted under Section 302/34 and also Section 302/144 and sentenced to imprisonment for life. The Sessions Judge had acquitted accused 2 and 3 completely but had convicted accused 1 and 4 under Section 304 (1) and sentenced them to 7 years rigorous imprisonment on the finding that these two accused had exceeded the right of private defence. The facts of the case have been detailed in the judgments of the High Court and the Sessions Judge and it is not necessary for us to detail the same.

2. It appears that the present dispute arose out of a chronic land dispute between the accused and the deceased party. In fact there is evidence to show that about three weeks before the present occurrence, one of the accused had threatened to kill the deceased and his partymen. This matter was reported to the Police Patel and the report is Ext. 14. This report was given on 28th April, 1975. The occurrence said to have taken place near the field of Hari Khoda. The prosecution case was that while deceased along with his companions and his relations were going to their field for cultivating the same, the accused party, variously armed, engaged them and started assaulting them indiscriminately. The companions of the deceased including P. W. 2 tried to protect themselves with whatever weapons they had in the cart and inflicted some injuries on the person of the accused. As a result of the attack by the accused three persons viz, Bhika Bhimji, Kadu Kala and Kanu Ganji received fatal injuries Bhika Bhimji and Kadu Kala died on the spot and Kanu Ganji followed soon thereafter. P. W. 2 son of the 1st deceased Bhika Bhimji rushed to the Police Patel to give information. On the way he met P. W. 12 whom he told as to how the injuries were caused to the three deceased persons as a result of the attack made by the accused. Perhaps till that time Kanu had not breathed his last. A report was prepared by P. W. 10 which was sent to the Police Station and on the basis of that report the present FIR was lodged and the investigation proceeded. The accused persons were tried, with the result mentioned above.

3. We have gone through the judgment of the High Court as also that of the learned Sessions Judge. We have also carefully perused the entire evidence in the case which consists of the eye witnesses account of the occurrence given by P. Ws. 2 and 3 corroborated by the evidence of P. W. 7 and P. W. 12 who had seen the accused running away with the arms immediately after the occurrence while these witnesses were proceeding to the spot on hearing of the death of the three persons. Prosecution also led some evidence regarding the recovery of an axe and some other articles which have been disbelieved by the Sessions Judge and in the view that we take it is not necessary to refer to them. A perusal of the evidence of P. Ws. 2 and 3 clearly reveals that they have given a very truthful and complete version of the occurrence from the start to finish. The learned Sessions Judge seems to have described these witnesses as interested and gave the reason that the actual origin of the assault was not deposed by them and the result of it was that the plea of right of private defence taken by accused Nos. 1 and 4 became extremely probable. The evidence of P. Ws. 9 and 12 also was rejected by the Sessions Judge on flimsy grounds. Regarding the evidence of P. W. 9, the Sessions Judge observed that as he was running towards the southern side and the accused were on western side, therefore the witness could not see them. It is very difficult for a witness to remember after such a length of time as to the exact direction in which he was running. There is no doubt that P. W. 9 was informed by P.