Judgment

FAZAL ALI, J. : - These appeals are directed against a judgment of the Madhya Pradesh High Court convicting the appellants under Ss. 148 and 302 read with S. 149 of the Indian Penal Code and sentencing them to imprisonment for life.

2. By our Order dated 12th July 1985, we had dismissed the appeals. We now proceed to give reasons for our Order.

3. The facts of the case have been detailed in the judgments of the Sessions Judge and the High Court and it is not necessary for us to repeat the same all over again. It appears that there was a chronic land dispute between Bhojraj (deceased) and the appellants so much so that Bhojraj had to enlist the services of one Abbas (PW 11) to accompany him wherever he went so as to guard him against assault. This means that the deceased expected serious threat to his life from the appellants due to the aforesaid enmity. On October 5, 1971 at about 2.30 p.m. while Bhojraj was proceeding, towards his village, accompanied by PW 11, the appellants reached the place of occurrence along with 5-6 persons and assaulted Bhojraj with swords and farsis as a result of which Bhojraj succumbed to his injuries. PW 1, who was not an eye-witness, on hearing of the incident reached the police station at 4.30 p.m. and lodged a FIR. The distance of the police station from the place of occurrence was about 10 miles. As the incident took place at about 2.30 p.m. and the report was lodged within two hours, there can be no doubt that the report was made promptly and, therefore, the question of concocting the case cannot possibly arise.

4. In support of the prosecution, the evidence led may be classified into three categories

1) the evidence of PW 11 (Abbas) who was a guard of the deceased and, as usual, was accompanying his master, Bhojraj, and saw the entire incident himself,

2) one of the accused seems to have made an extra-judicial confession to PWs 5 and 9 and admitted that he assaulted the deceased with sword and farsi, and

3) at the instance of the accused, bloodstained weapons were recovered which, after being examined by serologist, were found to contain human blood.

5. The learned Sessions Judge rejected the prosecution case for paucity of evidence and acquitted the accused. The State then filed an appeal before the High Court which, after careful examination of the evidence, reversed the judgment of the Sessions Judge and convicted the accused under Ss. 148 and 302, read with S. 149 of the IPC. Hence, this appeal to this Court under S. 2 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

6. The learned Sessions Judge was mainly swayed by the consideration that PW 11, who was the sole eye-witness and had seen the occurrence, did not immediately disclose the names of the accused to the inmates of the family of the deceased when he went to the house. On this ground alone, the Sessions Judge thought that this was a fatal defect in the prosecution case from which an irresistible inference could be drawn that PW 11 could never have seen the occurrence. We have gone through the evidence of PW 11 and we feel that the Sessions Judge was not at all correct. It was not the case that PW 11 never disclosed the details of the incident to the members of the family of the deceased but when he went to the house he immediately did not name the accused and the explanation given by PW 11 was that as he was completely perplexed he could not disclose the details immediately. The evidence of PW 11 shows that within 15 minutes he disclosed the names of the accused and gave full details of the occurrence. The learned Sessions Judge seems to have taken a most unrealistic view of the evidence of PW 11 by ignoring the fact that he (PW 11) being a guard of the deceased must have been shocked and stunned after seeing the whole incident and, therefore, he may not have been in a position to mention the names of the accused immediately but after composing himself within 10-15 minutes he mentioned the names and also gave