MEHTA, J.

1. The appellant herein has been convicted and sentenced as below vide judgment dated 23.03.1991 passed by the learned Sessions Judge, Dungarpur in Sessions Case No.44/1988:

2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

3. Brief facts relevant and essential for disposal of the appeal are noted herein below:-

The parties belong to the Village Bhadar Phala. The house of the accused Haliya is located at a short distance from the house of Ratan Lal. The accused Haliya had dug a well in his land a few days before the incident and dumped the waste material in the land of Ratan Lal upon which, Ratan Lal and his father Dhanna had requested Haliya not to do so. Being enraged thereby, Haliya had extended a threat of killing members of the complainant party. On 28.04.1988 at about 10 O’ Clock in the night, Dhanna was sitting on a cot in the Aangan of his house and was having food. Dhanna’s wife Smt. Leela was sitting nearby. Ratan Lal was preparing food in his own house. His sister Kamli had delivered a child and thus, she was also sleeping in the house. Dhanna’s other two sons Himmat Ram and Shanker were guarding the crops in their field. At that time, Haliya came around with a sword in his hand and was hurling insinuations of killing. He entered into the house of Dhanna and inflicted a sword blow on the neck of Shri Dhanna who fell down on the ground. On hearing the cries, Ratan Lal rushed to the place of incident on which, Haliya inflicted a sword blow to Ratan Lal as well which landed on his hand. Ratan Lal persisted in his attempts to disarm Haliya who received some injuries in the process. He thereafter ran away from the place of incident with the sword. Haliya’s wife Babita, father Valji and brother-in-law Ratna also came to the spot and started throwing stones towards the house of the complainant. Dhanna expired as a result of injuries inflicted by Haliya. Incorporating these allegations, a written report (Ex.P/9) was lodged by Himmat Ram (PW-5) son of the deceased Dhanna at the Police Station Dhambola upon which, FIR No.104/1988 was registered for the offences under Sections 302 and 307/34 IPC and investigation was commenced.

The Investigating Officer prepared the spot documents, Panchayatnama Lash of the dead body (Ex.P/1) and seized the blood stained and control soil vide memorandum (Ex.P/4). The body of Dhanna was forwarded for autopsy to the Medical Jurist Dr. Mukesh Agarwal posted as Medical Office Incharge, Simalwara. The Medical Jurist performed the autopsy and issued the postmortem report (Ex.P/12) taking note of 9 injuries on the body of the deceased. The accused Haliya, Basanti, Ratna and Valji were arrested. Acting in furtherance of the information provided by Haliya to the I.O. under Section 27 of the Evidence Act (Ex.P/17), a sword was recovered and seized vide memorandum (Ex.P/7). After investigation, the accused appellant Haliya was charge-sheeted for the offences under Sections 448, 302 and 307 IPC and the remaining accused were charge-sheeted for the very same offences with the aid of Section 34 IPC. The offence punishable under Section 302 IPC being triable by Court of Sessions, the case was committed to the Sessions Judge, Dungarpur where charges were framed against the accused persons for the above offences which they denied and claimed trial. The accused Basanti absconded and thus, her trial was separated. The trial of the remaining three accused continued. The prosecution examined as many as 14 witnesses and exhibited 21 documents to prove its case. The accused appellants were confronted with the circumstances appearing against them in the prosecution evidence by recording their statements under Section 313 Cr.P.C. They denied the prosecution allegations and claimed to be innocent.

4. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above whereupon, he has approached this Court through the instant appeal for assailing the impugned Judgment dated 23.03.1991.

5. Learned counsel Shri Mridul Jain and Shri Bhagat Dadhich, representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. As a matter of fact, none of the so-called eye witnesses saw the incident as they could not have reached at the scene of occurrence before Shri Dhanna had received the injuries. The allegations levelled by the material eye-witnesses are contradicted by the medical testimony. They further submitted that the learned trial court has acquitted the three co-accused persons on the basis of very same evidence and hence, conviction of the accused appellant Haliya on the same set of evidence, is unjustified. On these submissions, Shri Jain and Shri Dadhich implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellant of the charges.

6. On the other hand, learned Public Prosecutor vehemently and fervently opposed the submissions advance by the appellant’s counsel. He urged that the appellant bore an animosity with the deceased over the issue of throwing waste construction material on the field of the complainant party. Fueled with the motive of wreaking vengeance, the appellant herein picked up a sword, trespassed into the house of the complainant party and inflicted the sword blow on the neck of the deceased Dhanna. The allegation of the prosecution witnesses that the accused inflicted the sword blow on the neck of the deceased is fully corroborated by the evidence of the Medical Jurist. On these grounds, learned Public Prosecutor submitted that conviction of the appellants as recorded by the trial court vide impugned Judgment, is absolutely justified and that the impugned Judgment does not warrant any interference whatsoever in this appeal.

7. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record.

8. The prosecution case is based on direct testimony of the eyewitnesses Himmat Lal (PW-5), Ratan Lal (PW-6), Smt. Leela (PW7) and Kamli (PW-8). We now proceed to appreciate the material prosecution witnesses.

The first information report (Ex.P/9) was lodged by PW-5 Himmat Ram. He deposed on oath that the incident took place on 28.04.1988 at about 9 O’ Clock. He was at his field. His father Dhanna and mother Smt. Leela were present at home. Ratan Lal was preparing food and so was his wife. They heard cries on which, they rushed towards their house and saw that Haliya inflicted a sword blow on the neck of his father Shri Dhanna. Ratan Lal also rushed to save Shri Dhanna on which, a sword blow was also inflicted on his hand. He proceeded to the police station immediately after the incident and gave the report (Ex.P/9). The police prepared the spot documents and also seized the sword from the place of incident. In cross-examination, the witness admitted that Haliya had given the sword blow to his father before he reached the place of incident. Thus, apparently, the witness did not see the incident with his own eyes and the allegations which he has levelled appears to be based on inferences and informations given by the other eye-witnesses. The witness admitted in his cross-examination that Ratan Lal told him about the manner in which the incident had happened.

9. PW-6 Ratan Lal himself is an injured witness. He stated that the accused Haliya was constructing a well at his field and was throwing waste material in their land. They requested Haliya not to do so on which, he became enraged. On the fateful night, Himmat and Shanker were present at the well. The witness was preparing food. His mother was sitting outside the house with his father. His mother raised a hue and cry on which, he rushed towards his father’s house. No sooner he reached there, Haliya inflicted the blow of sword on his hand. On hearing the sounds of commotion, Shanker and Himmat Ram also reached there.

From a perusal of the evidence of Shri Ratan Lal, it can easily be inferred that he too did not personally see the sword blow on his father’s neck and his evidence is also based on inferences and informations provided by his mother.

10. Kamli (PW-8) was present in the house when the accused assaulted Shri Dhanna and caused him the fatal injury. She stated that her father was sitting on a cot in the Aangan of their house. The accused Haliya came there armed with a sword. He inflicted the blow of the sword on the neck of her father who died at the spot. She and her mother raised a hue and cry on which, Shanker, Fateh Lal and Himmat Ram came around. Ratan Lal tried to overpower the accused who wielded the sword which landed on the hand of Ratan Lal. Nothing significant was elicited in the crossexamination conducted from the witness and thus, we find her testimony to be wholly reliable and convincing. She unquestionably was present in the house at the time of the incident and saw the accused inflicting the sword blow on the neck of her father.

11. Fateh Lal (PW-9) did not support the prosecution case and was declared hostile.

12. Another star witness of the prosecution is Smt. Leela (PW-7) wife of the deceased. She stated in her evidence that she was sitting in the chowk of her house and her husband was taking meals while sitting on the cot. The accused Haliya came there armed with a sword. He immediately inflicted blow of the sword on the neck of her husband who fell down unconscious and expired immediately. Her sons Ratan Lal, Himmat Ram and Shanker came around and tried to overpower the accused Haliya. The other family members of Haliya threw brickbats towards their house.

On a threadbare appreciation of the evidence of Smt. Leela, we are of the view that her presence at the place of incident is absolutely natural. She has given convincing evidence against the accused appellant Haliya. Nothing significant could be elicited in the lengthy cross-examination conducted from the lady.

13. Thus, we are of the opinion that the allegation set out in the evidence of Smt. Leela (PW-7) and Smt. Kamli (PW-8) that the appellant herein inflicted the fatal sword blow on the neck of the deceased Dhanna, is reliable and their evidence to this extent is unimpeachable.

14. Now, we proceed to consider the evidence of the Medical Jurist Dr. Mukesh Agarwal (PW-10) who stated on oath that he examined the injured Shri Ratan Lal and took note of a sharp weapon injury on his right arm underneath which, the right humerus bone was fractured. He also medically examined the accused Haliya and took note of two wounds one on the right forearm and the other on the index finger. He also took note of six more injuries being lacerated wounds and abrasions on various body parts of the accused Haliya. The doctor conducted autopsy upon the dead body of Shri Dhanna and took note of two cut wounds (i) 7X2 cms. on the right mandible region and (ii) 10X5 cms. on the right neck which was going upto the mastoid region. All the blood vessels underneath the injury were severed. The injuries were antemortem and were sufficient in the ordinary course of nature to cause death. From the evidence of the Medical Jurist, it is well proved that the deceased Shri Dhanna was caused repeated blows by a sharp weapon. The injury No.2 severed the vital blood vessels in the neck region of the deceased and the injury was sufficient in the ordinary course of nature to cause death. The evidence of the Medical Jurist thoroughly corroborates the evidence of the eye-witnesses Kamli (PW-8) and Smt. Leela (PW-7). At this junction, we may note here that the evidence of the Investigating Officer Jaswant Singh (PW-11) that he recovered the weapon used in the incident i.e. the sword at the instance of the accused Haliya, is not acceptable because the witness Himmat Ram (PW-5) clearly stated that the sword was picked up by the I.O. from the place of incidence. Hence, the recovery of the sword is not reliable. However, irrespective of the fact that the recovery of the sword cannot be relied upon, the fact remains that the reliable testimony of the eye-witnesses Smt. Leela (PW-7) and Smt. Kamli (PW-8), referred to supra, does not require any corroboration. So far as the injuries of the accused are concerned, the same were explained by the witness Ratan Lal who clearly stated in his evidence that while he was trying to overpower the accused, some injuries were caused to him. The injuries, which were suffered by the accused in the very same sequence, rather affirm his presence at the place of incident. The injuries were trivial and hence, the same do not in any manner, impinge upon the reliability of the evidence given by the eye-witnesses. The accused, upon being questioned under Section 313 Cr.P.C., did not deny his presence at the place of incident and rather stated that he was beaten by the members of the complainant party. We have also discussed this aspect of the case and have concluded that injuries were caused to the accused after he had inflicted the fatal sword blows to Shri Dhanna and in the process, when the members of the complainant party were trying to overpower the accused.

15. As a consequence, we are of the firm opinion that the prosecution has proved its case as against the accused appellant Haliya beyond all manner of doubt. The impugned Judgment does not suffer from any infirmity whatsoever warranting interference therein.

16. The impugned judgment dated 23.03.1991 passed by the learned Sessions Judge, Dungarpur in Sessions Case No.44/1988, is affirmed.

17. As a consequence, the appeal is dismissed as being devoid of merit. The accused appellant is on bail. His bail bonds are cancelled. He shall forthwith be taken into custody and will be made to serve the sentences awarded to him by the trial court.

18. Record be returned to the trial court.