IMPORTANT POINT
When accused were armed with deadly weapons like ballam, pharsa, axe, and country-made pistol but these weapons were not used rather deceased was assaulted by lathis, conviction u/s. 3D2/] 49 cannot be sustained but is liable to be converted u/s. 304 part II/149 I.P.C.

JUDGMENT

Dr. A. S. Anand, J. - This appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against the judgment of the High Court of Madhya Pradesh in Criminal Appeal No. 1326 of 1985. Vide which the judgment of acquittal recorded in favour of the appellants and two others by the Additional Sessions Judge was set aside.

2. Ten accused, including the eight appellants (Ram Sahai has not filed any appeal and Uma Shankar has since died in jail) were tried for offences under Section 302 read with Section 149 I.P.C. and Sections 148 and 147 I.P.C. Appellant Uma Shankar was also tried for an offence under Section 436 I.P.C. Appellants Raja Ram, Anandi, Ram Janak, Harivansh, Halke and Uma Shankar along with Ram Narayan were also tried for offences under Section 325/149 I.P.C. for causing grievous hurt to Ram Lakhan, while Anandi appellant was charged for an offence under Section 323 I.P.C. for causing simple hurt to Sahodara Bai.

3. In brief, the prosecution case is that on 23.3.1983 at about 11 a.m. at village Chhigamma Police Station Gunnore, the appellants along with Ram Sahai and Uma Shankar on account of previous enmity, attacked deceased Halke who was sitting in the house of Khajju causing him several injuries to which he succumbed later on. Injuries were also caused to Ram Lakhan P.W. 1 and Sahodara Bai P. W. 7. First Information Report of the occurrence was lodged at 3.30 p.m. at Police Station Gunnore on 23.2.1984 by Ram Lakhan P.W. 1. The accused party is related inter se and the eye-witnesses, who belong to the complainant party are also related inter se, except P. W. 2 Vishalya and P. W. 6 Bajju, who in any case turned hostile at the trial.

We have been taken through the evidence recorded in the case by Shri Rajinder Singh, the learned Senior Counsel appearing for the appellants.

4. From the evidence on record we arc satisfied that the account of attack given by the prosecution is substantially correct and the appreciation of evidence by the High Court also does not suffer from any infirmity. Our scrutiny of the evidence on the record reveals, that the prosecution has successfully established the guilt against the appellants and Ram Sahai who has not filed any appeal against his conviction and sentence, beyond a reasonable doubt. The evidence of the eye-witnesses P.W. 1, P.W. 3, P.W. 4, P.W. 5, P.W. 7 and P.W. 8 is consistent and nothing has been brought to our notice from which any doubt may be cast on their credibility. They have stood the test of cross-examination well. Two of the eye- witnesses are stamped witnesses being themselves injured. Indeed, the prosecution witnesses have tried to exaggerate to an extent the part played by the appellants in the assault but on that ground alone the entire prosecution cannot be thrown out. It appears to us that the trial court adopted the easy course of throwing out the entire prosecution case without critically sifting the evidence and laid too much emphasis on minor discrepancies and contradictions. We find ourselves unable to agree with the reasoning of the trial court. The findings of the trial court arc conjectural and based on surmises and we have not been able to persuade ourselves to subscribe to those findings. The adverse inference drawn by the trial court from the so called delay in the lodging of the F.I.R. is not at all justified keeping in view the fact that the house of Khajju had been set on fire and besides Halke, Ram Lakhan and Sahodara Bai had all suffered injuries. The anxiety of their relations was naturally to provide first aid to them, rather than to rush to the police station to lodge the report. That apart, the lodging of the report at the Police Station at 3.30 p.m. in respect of occurrence which Look place at about 11 A.M. cannot be said to be delayed lodging of the report. From the analysis of the evidence and particularly the trustworthy statements of P.W. 1 and P.W. 7, who were injured during