B. K. Shrivastava, J. - This criminal appeal has been filed on 1/09/2009 under section 374 (2) of the Cr.P.C., 1973 against the judgment dated 17/06/2009 passed by the II Additional Sessions Judge, Raisen in S.T. No. 231/2008. By the impugned judgment, the learned Lower Court convicted both the appellants for offences under Sections 302 and 324 of the I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 500/- each for offence under Section 302 of the I.P.C. and R.I. for one year and fine of Rs. 200/-each for the offence under Section 324 of the I.P.C.

2. As per the prosecution case, on 1/09/2008 at about 7 A.M. in the morning, Mukesh, his sisters Phoolwati and Devwati were going to labour work in village Dipatia, Police Station Noorganj. Mukesh told accused Imrat that the Bagad is coming in the way, therefore, he should correct the Bagad. Imrat used the filthy language and called his son Jamuna. Thereafter, both the accused attacked upon Vinod by the help of axe and caused head injuries to Mukesh. When Sukhwati and Phoolwati tried to save Mukesh, then both the accused caused injuries by Axe to both ladies. Thereafter, Mukesh was rushed to the hospital. Thereafter, in the Hamidia hospital Bhopal, Mukesh expired on 1/09/2008 at 3:15 P.M.

3. The F.I.R. was lodged by Phoolwati w/o Sadaram on 1/09/2008 at 11 A.M. in police station Noorganj. The police registered the Crime No. 29/2008 under Sections 294, 324 and 307/34 of I.P.C. When Mukesh expired, then Merg No. 8/2008 was also registered and Section 302 was included. The police send the body of Mukesh for post-mortem after preparing the inquest Panchnama. Phoolwati and Sukhwati was also medically examined and the police prepared the spot map Ex. P-2 and recorded the statement of various witnesses. Thereafter, come to the conclusion that both the accused committed the murder of Mukesh and caused injury to Phoolwati and Sukhwati by sharp-edged weapons. Therefore, challan was filed on 6/11/2008 before the J.M.F.C. Raisen who registered the Criminal Case No. 826/2008. Thereafter, commit the case to the Court of Sessions on 11/11/2008. The record was received in the Sessions Court, Raisen on 24/11/2008 and S.T. No. 231/2008 was registered. On 4/12/2008, the case was made-over to the Court of II Additional Sessions Judge, Raisen. The Lower Court framed the charges under Sections 294, 324, 324/34, 302 and 302/34 of the I.P.C. on 17/12/2008. The accused person denied the charges. Thereafter, the prosecution examined 19 witnesses. No any witness has been examined in defence by the accused person. After recording the evidence, the learned Court passed the impugned judgment. The Court came to the conclusion that both the accused committed the murder of Mukesh and caused the injuries by sharp-edged weapon to Sukhwati and Phoolwati. The Court held guilty both accused for the offence under Sections 302 and 324 of the I.P.C. and passed the sentence stated in para 1 of this judgment with default stipulation.

4. It is submitted by the appellant that the trial Court did not appreciate the evidence in proper way. The prosecution was unable to prove the charges beyond reasonable doubt and the trial Court committed the mistake by convicting the both accused persons. The accused persons are liable to be acquitted. Therefore, it is requested to set aside the judgment and acquit the appellants.

5. On the other side, the State strongly supports the judgment passed by the Lower Court. It is submitted by the learned Government Advocate that the judgment is based upon the proper appreciation of the evidence produced by the prosecution. The case was proved beyond reasonable doubt, therefore, the appeal is liable to be dismissed.

6. In this case, the F.I.R. has been lodged by Phoolwati (PW-1) w/o Sadaram. As per the statement of this witness, she was in her house at the time of incident. When she was preparing the tea, at that time Sukhwati and Phoolwati came by running and asked to save their brother who was beaten by Imrat and Jamuna. When the witnesses reached on the spot, she found that Imrat and Jamuna was beating to Mukesh by the help of axe. But in the cross-examination, in para 8, she said that she reached near the gate, at that time, Mukesh was lying on earth but she denied the suggestion that she could not see the incident. Her para 10 and 11 creates some doubt because in para 10, she admitted that the accused did not commit the offence in front of witness herself. She was not present at the time of incident. She only found the Mukesh who was lying on the earth.

7. In this case, as per the F.I.R., Mukesh was going with her sister Phoolwati and Sukhwati. Phoolwati is PW-14 and Sukhwati is PW- 15. Definitely, both the witnesses are the eye-witnesses.

8. Phoolwati w/o Inder Singh (PW-14) supported the case of the prosecution. She deposed that she was going to labour work with his brother Mukesh. The incident took place on the way of the village which is situated near the house of witness. The witness said that the uncle of witness said to the accused persons to correct their Bagad which is turned towards the passage. Thereafter, Jamuna came with an Axe and attacked on the head of Mukesh. Imrat also came by jumping Bagad and attacked by the axe. The witness again said that she herself and her sister Sukhwati reached there and tried to save their brother but both the accused attacked on them also and caused the injuries by the help of axe. As per the witness, attack was made by the axe on their head. In para 5, she also stated that at the time of incident, both the sisters were present. No any suggestion is found in the cross-examination of the witness for creating any doubt upon the testimony of the witness. The witness cross-examined upon the basis of her police statement Ex. D-6 but no any substantial omission or contradiction has been pointed out.

9. The second witness is Sukhwanti w/o Mukesh (PW-15) who is also an injured witness. The witness says that the incident took place at 7 A.M. in the morning. The houses of the appellants and the father of witness are adjoining. The accused person imposed the Bagad which was turned towards the passage which caused hurdle to the complainant party. When Mukesh was going, then accused person attacked by the help of axe. The witness again said that upon hearing the screaming, her father and witness themselves reached there and both the accused caused the injury to the witness by the help of axe in her head. This witness also cross-examined at length in reference to her statement Ex. D-7 but no any substantive suggestion is found. Any substantive omission or contradiction is not found in the statement of witness, therefore, it appears that the statement of Phoolwati (PW-14) and Sukhwati (PW-15) are reliable. No any doubt is created about the presence of these witnesses at the time of incident. As per the statement of both the witnesses, both the accused caused the injury to Mukesh in his head by the help of axe. Both the witnesses tried to save their brother but the accused persons also caused the injuries to both the witnesses.

10. Dr. K. P. Yadav (PW-19) proved his report Ex. P-25 and said that he examined Sukhwati w/o Mukesh on 1/09/2008 at Government Hospital Obedullaganj. As per the statement of the Doctor, he found a cut wound of 3x 1/2x 1/2" upon the back side of the head of Sukhwati. The injury was fresh and the blood was running. As per opinion of the Doctor, the injury was caused by sharp-edged weapons within six hours.

11. Dr. Yadav also proved his report Ex. P-27 and said that he also examined the Phoolwati w/o Inder Singh on the same day and found a cut-wound of 1" x / x W which was situated at upper part of the head between both parital bones. As per opinion of Doctor, the injury was caused by sharp-edged weapons. Therefore, it appears that cut wound was found upon the person of Sukhwati and Phoolwati. This fact has also supported the evidence of Sukhwati and Phoolwati and shows that both were present at the time of incident and tried to save her brother, at that time, the accused persons caused the injury by the help of axe. As per both witnesses, both the accused attacked on Mukesh by the help of Axe. Dr. K. P. Yadav also proved the M.L.C. report Ex. P-26 and said that he also examined Mukesh and found two fresh injuries caused by hard and sharp-edged weapons within six hours. The injuries are:-

(i) Incised wound 4" x /x Bone deep over scalp just approximate to inter-parital region.

(ii) Incised wound 4" x /x Deep upto brain. Cut scalp bone i.e. ocipital bone is seen through the wound present over occipital region. Placed oblique and fresh, profuse bleeding.

12. Dr. D. K. Satpati (PW-11) proved the post-mortem Ex. P-16. He said in his statement that the post-mortem was conducted on 2/09/2008. He found that stitches wound 7 cms. long upon the head of Mukesh in which 10 stiches were found. This wound was 13 cms. above towards the head from Glavela. Another wound was also a cutwound upon the left side of skull in which the bone was cut. As per the opinion of the Doctor, the death was due to shock and hemorrhage which was the result of head injury which has been caused by hard and sharp object. The death was homicidal in nature and within 24 hours. Therefore, it is proved that the death of Mukesh was the result of head injuries caused by both accused persons by the help of Axe.

13. Pankaj Geete (PW-17) is the police Sub-Inspector posted at Station Incharge Police Station Noorganj. This witness is the Investigator of the case. The witness said that on 2/09/2008, he reached on the spot and prepared a spot map Pradarsh P-2. He seized the blood stained and simple soil from the spot. The witness again said that he interrogate Jamuna Prasad and Imrat Singh and the information was note down in the memo Ex. P-8 and P-9. Both the accused gave the information regarding the Axe. Thereafter, on 3/09/2008, one axe was given by Imrat and one axe was given by Jamuna Prasad. The Axe was kept by Imrat in his house. The Axe was also kept by Jamuna in her house. Both the accused given the Axe from their Madwa of the house. The witness seized the aforesaid Axe and prepared the seizure memo Ex. P-10 and P-11. The information regarding the Axes and the recovery of Axes is also supported by the evidence of Amar Singh (PW-7). This witness says that the Police interrogate both the accused in presence of the witness. Both the accused gave the information regarding the Axe and, thereafter, produced the Axes and the police prepared the seizure memo Ex. P-10 and P-11. The witness identified the Axes as Article 8 A and Article-B. In his statement, this witness is stable in his crossexamination. No any ground is found in his cross-examination to disbelieve the testimony of the witness.

14. The second witness of seizure is Jagdish (PW-6). This witness only supports the fact of seizure of Axes. He identified the Axes Article-A and Article-B and says both the Axes were shown to him in the police station. The prosecution case is not effected from the statement of this witness because the statement of Amar Singh is found reliable and the statement of Investigator is also found reliable. Therefore, this fact is found proved that both the accused persons gave the information regarding the Axe and, thereafter, the Axes were recovered from the possession of both the accused.

15. As per the F.S.L. report, the blood was found upon both the Axes. Human blood was found upon the Axe seized from Imrat Gaur. The category of blood could not be detected in reference to Axe seized from the Jamuna because the spot was disintegrated. But it appears that the blood was found upon both the Axes. Therefore, it can be said that the Axes were used in causing the injuries to Mukesh, Phoolwati and Sukhwati.

16. Sadaram (PW-2) does not support the prosecution case. In his examination-in-chief, he said that he was going to ease himself. When, he came back, he saw Mukesh lying on the road and the injuries were found in his head. Both the accused persons were standing there, near about two or three feet and both were armed with Axes. When the prosecution declared the witness as hostile witness and cross-examined, then in para 6, he admitted that both the accused caused the injury to Mukesh in his head and Mukesh expired, as a result of aforesaid injuries. Again when the witness was examined by the defence, then in para 8, he said that he did not see the incident, therefore, he is not able to explain that who caused the injury to Mukesh. The statement of this witness is not reliable because he changed his version at different stages of chief and crossexamination. The statement does not affect the prosecution case because the statements of both the injured ladies are found reliable.

17. Bishan (PW-3) is the father of deceased Mukesh. This witness clearly stated that there is no any previous enmity between the parties. The witness supported the prosecution case that he himself told the accused persons to correct their Bagad. Some altercation took place. Mukesh who was going for work reached there and both the accused persons attacked on Mukesh by the help of Axes and caused the injury on the head of Mukesh. The witness again said that his daughters Sukhwati and Phoolwati tried to save Mukesh, then both the accused also attacked upon both ladies and caused the injury by the help of Axes. The witness again said that he has seen the entire incident and he also tried to save Mukesh but Imrat followed him with the Axe. Therefore, he could not save. As per the witness, the accused caused the injury on the head of both Phoolwati and Sukhwati. Some suggestions have been given to the witness regarding the assault by the witness upon Imrat but the witness denied the aforesaid suggestion and the defence did not produce any evidence in support of their suggestions.

18. Balaram (PW-4) is also an eye-witness. This witness also supported the case of the prosecution. The witness said that he was coming after easy himself. At that time, Jamuna and Imrat attacked upon Mukesh by the help of Axe. Phoolwati also tried to save but Jamuna attacked on her by the help of Axe. The witness crossexamined at length but no any suggestion is found in the crossexamination to disbelieve the witness.

19. Rajesh Prajapati (PW-5) is also an eye-witness who also supported the case of the prosecution. As per witness he is a Driver of the tractor in which Amar Singh was the helper. He was going to the house of Amar Singh, at that time, he saw that both the accused were causing injuries by the help of Axe to Mukesh near the passage of resident of Mukesh. When Sukhwati came there, both the accused caused injury in her head. When the sister of Mukesh tried to save Mukesh, then both the accused caused injuries by Axes to her.

20. As per witness, Mukesh was taken in the jeep of elder brother of witness. The witness is a Constable. In his cross-examination also, he denied the suggestions given by the prosecution regarding his absence at the time of occurrence.

21. Ranjeet (PW-9) is not an eye-witness. He is the witness of only inquest report Ex. P4.

22. Gowardhan Singh (PW-6) is an Assistant Sub-Inspector of Police Station Kaifeza. The witness issued the notice Ex. P-3 and, thereafter, prepared the inquest Panchnama (Ex. P-4) in the mortuary of Gandhi Medical College, Bhopal.

23. Kaluram (PW-12) is the Patwari who prepared the spot map. Vinod Prajapati (PW-13) is also not an eye-witness. This witness received the information from his brother Rajesh. As per the statement of this witness, he was sleeping in his house at about 7 to 8 A.M. His brother Rajesh came there and told him that Jamuna and Imrat caused injuries to Mukesh by Axes and Mukesh is lying on earth. Upon this information, the witness reached on the spot and took Mukesh in his jeep and reached Obedullaganj hospital. The witness again said that after primary treatment, Mukesh was referred to Hamidia hospital, Bhopal. After sometime, Mukesh was expired.

24. Hemraj Singh (PW-16) is the Head constable of Kohafiza Police Station who registered the merg no. 409/2008 (Ex. P-18) upon the basis of information given by telephone attendant Yashwant Yadav. Ramesh Kourav is also a Head-constable posted at Police Station Noorganj who registered Crime No. 29/2008 Ex. P-1 and also registered original Merg No. 8/2008 (Ex. P-23). The witness also seized the sealed packet received from Hamidia Hospital on 3/09/2008. The witness prepared the seizure memo (Ex. P-24).

25. Therefore, it appears from the entire evidence that the death of Mukesh was homicidal and was a result of head injuries caused by both accused by Axes. By the help of Axes, both the accused also caused the injuries to Phoolwati (PW-14) and Sukhwati (PW-15). The statements of Phoolwati and Sukhwati are found reliable. The prosecution case is also supported from the evidence of Bishan (PW- 3), Balaram and Rajesh (PW-4) and also supported from the evidence of Dr. K. P. Yadav (PW-19) and Dr. D. K. Satpati (PW-11). Dr. Yadav (PW-19) also gave the opinion regarding the Axes seized from the accused persons. As per the opinion, the injuries found upon all the three persons may be caused by the help of Axes.

26. Therefore, it appears from the entire evidence that the prosecution case was proved beyond reasonable doubt and the trial Court did not commit any mistake by holding guilty the accused persons for offences under Sections 302 and 324 of the I.P.C. The life imprisonment has been awarded for offence under Section 302 of the I.P.C. which is a proper punishment. In reference to Section 324 of the I.P.C., looking to the number of two injured persons, the punishment should be double count but the trial Court only passed a single sentence under Section 324 of I.P.C. No any cross appeal has been filed by the State, therefore, the sentence cannot be enhanced. Looking to the fact that there are two injured persons, the sentence of one year R.I. with fine of Rs. 200/- each is sufficient and no interference is required in the sentence also. Therefore, this appeal is having no merit and the trial Court did not commit any mistake by convicting and sentencing the appellant.

27. Accordingly, the appeal is dismissed.