Nisha Gupta, J.

1. This criminal appeal under Section 374 has been filed against the judgment dated 7.11.2003 passed by Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawaimadhopur in Session Case No. 3/2003 whereby the accused appellant has been convicted and sentenced as under :-

Under Section 302 IPC:- to undergo Life imprisonment and a fine of Rs. 5000/- in default of payment of fine, to further undergo five month Imprisonment.;

Under Section 307 IPC:- to undergo seven years R.I., and fine of Rs. 5,000/-, in default of payment of fine, to undergo further five months imprisonment.

(Both the sentences were ordered to run concurrently)

2. The brief facts giving rise to this appeal are that complainant Hari Ram (PW/1) has lodged a written report Ex.P/1 on 26.10.2002 at Police Station, Bonli stating therein that on 25.10.2001 at about 5.00 PM, there was a quarrel as regards to the land of Bada between neighbor Ram Prasad and Shambhoo Mali. On hearing the noise, he went there and saw that Shambhoo, Hariram and Premraj are inflicting injuries to Ram Prasad and his wife Swaroopi. Ramsahai, Hemraj, Babu and Ramesh were also there who have seen the occurrence. Ram Prasad received grievous injuries. Swaroopi has also received grievous injury on her head. Laloo, Ramlal, Babu and complainant shifted them to Sawai Madhopur Hospital. Laloo Meena was the driver of the vehicle. Swaroopi has died during the treatment and Ram Prasad was referred to Jaipur. It has also been mentioned in the First Information Report that the present appellant Premraj was having Axe in his hand and he has inflicted injuries from the same. On this report, FIR No. 185/2002 has been registered for the offence under Sections 302, 307, 323, 448, 34 IPC and after usual investigation, charge sheet has been filed against the present appellant and against Hariram and Shamboolal which has been committed to the Court of Sessions and transferred to Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur. The court below has framed charges against the appellant for the offence under Sections 302, 307, 302/34, 307/34 and other co-accused persons. In support of its case, the prosecution has examined PW.1 Hari Ram, PW.2 Ram Prasad, PW.3 Dr. M.L. Kanawat, PW.4 Laddu, PW.5 Hem Raj, PW.6 Ram Lal, PW.7 Lallu Lal, PW.8 Sita Ram, PW.9 Ram Sahai, PW.10 Babu Lal, PW.11 Ramesh, PW.12 Ramsharan Lal, PW.13 Pawan Kumar, PW.14 Jugal Kishore, PW.15 Miss Manju, PW.16 Ram Khiladi, and PW.17 Dr. Anu Bhandari and produced Ex. P/1 to P/38. Statements of accused persons have been recorded under Section 313 Cr.P.C and in defence DW/1 Suraj has been examined and defence has relied upon Ex.D/1 and D/2 and report of Forensic Science Laboratory, Rajasthan has also been exhibited as Ex.C/1. After conclusion of the trial, Hariram and Shamboolal were acquitted from all the charges and present appellant has been convicted and sentenced, as referred above. Hence this appeal.

3. The contention of the present appellant is that the matter was compromised between the parties and PW/2 Ram Prasad who is alleged to have suffered injuries has not supported the prosecution story, all other witnesses to the incident named in the FIR have not supported the prosecution story and the court below has relied upon the evidence of PW/15 Miss Manju and PW/16 Ram Khiladi who are not the eye-witnesses of the incident, they have not been named in the FIR and they are child witnessed, they are residing with their Nana and they are in the influence of Nana and are tutored witnesses. There is no motive for the appellant to murder the deceased or to inflict grievous injury to Ram Prasad, Swaroopi. Presence of child witnesses is doubtful, hence they cannot be relied. In the alternative, their contention is that Swaroopi has received only a single blow, incident has occurred in spur of moment, there is no repetition of any injury. Admittedly, both parties are members of the same family and Axe is commonly used weapon, no specific intention has been attributed to the appellant and case does not travel beyond the scope of Section 304 Part-II IPC.

4. Per contra, the contention of the learned Public Prosecutor is that PW/15 Miss Manju and PW/16 Ram Khiladi are reliable witnesses. Their evidence is consistent with the previous statement. Medical report also corroborate the ocular evidence. They are the children of the family, hence their presence is natural. Blood stain Axe has been recovered and motive was there as prior to the incident in the morning, there was some quarrel between the family, hence there is no infirmity in the conviction of the appellant and he has rightly been convicted for the offence under Section 302 IPC as he has not only caused grievous injury to Swaroopi but to Ram Prasad and intention is clear from the incident. Therefore, no interference is needed.

5. Heard the learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.

6. PW/1 Hari Ram has lodged the written report but he has not supported the prosecution story. In his court statement, he has only stated about the presence of appellant at the spot and he has further verified the fact that he lodged Ex.P/1 Report on his free will and Swaroopi has died of the injuries. PW/2 Ram Prasad is the injured witness who has also suffered the injury in the incident but he has not supported the prosecution story and reason is obvious that appellant is his brother and his contention is that now he is residing with the appellant and the matter has been compromised with the appellant but he has also testified his injury report (Ex.P/12) and he has very specifically stated that now he wants to save the appellant. PW/4 is Laddu who took the deceased and the injured Ram Prasad to hospital in his vehicle but he has also not supported the prosecution story. All other witnesses PW/5 Hem Raj, PW/6 Ram Lal, PW/7 Lallu Lal, PW/8 Sita Ram, PW/9 Ram Sahai, PW/10 Babu Lal and PW/11 Ramesh who are the alleged eye-witnesses of the incident have not supported the prosecution story.

7. The prosecution has relied upon only on the evidence of PW/15 Miss Manju and PW/16 Ram Khiladi and court below has also relied upon these two eye-witnesses. PW/15 Manju has stated that Premraj, the present appellant has inflicted Axe blow on her mothers head and he and other two accused also inflicted injuries to her father. Her father has received injuries on head, which was caused by the present appellant with Axe. Her further contention is that her younger brother Ram Khilari was also there who came with her deceased mother and time of the incident was 5-6 in the evening when they returned back from their agricultural field. She has also identified all the three accused persons before the court. In cross-examination also she has stated that accused persons came to their residential place and firstly Preraj has inflicted injury to her mother and at that time Babu and Ramsahai also came there. Her further contention is that they are now living with her maternal uncle as his father has compromised with his brothers.

8. PW/16 Ram Khiladi has also testified the fact as narrated by his sister Manju. A specific question has been asked to both these witnesses that they became unconscious at the time of the incident which has been denied by both these two.

9. The contention of the appellant is that both these witnesses has not been named in the FIR, hence they are not reliable witnesses and planted witnesses. Both these witnesses has stated that they came with their mother to their house and thereafter, incident has taken place and with the cross-examination of these two witnesses as indicated above, the appellant himself has admitted their presence at the place of incident. Both these witnesses are children of the deceased . Admittedly, offence has taken place at the house of deceased, hence their presence is natural and there is a practice that in the FIR, only name of the adult members to be written, hence the non mentioning of names of these two witnesses cannot brush aside the evidence of these two witnesses. Both these two witnesses are reliable one. They have been subjected to lengthy cross-examination which reveals that their understanding is normal and quality of testimony is good which is also consistent with their previous statement, hence allegation that they are under the influence of their Nana is of no consequence. Furthermore, their presence has been shown in the police statement of Ladoo (Ex.P/18) recorded during the investigation and statement of Ramesh under Section 161 (Ex.P/29) and apart from statements of both these witnesses have been recorded on the same day of the incident. The Investigation Officer, Ramsharan Lal (PW/12) has also stated Manju and Ram Khiladi were on the spot and they have witnessed the incident, hence their statements have been recorded. The contention of the appellant is that both are child witnesses and cannot be relied upon and reliance has been placed on Panchhi & ors. v. State of U.P., (1998) 7 SCC 177 [LQ/SC/1998/815] but law is very clear on this point that age of the witness in itself is not a disqualification. The testimony of a child witnesses should be evaluated carefully and with care and caution and it has been held as under :-

"11. Shri RK Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW1 being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy credence. Bu we do not subscribe to the view that the evidence of a child witness would always stand irretrievable stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is a found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others toll them and thus a child witness is an easy prey to tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law."

10. Here in the present case, testimony of PW/15 Manju and PW/16 Ram Khiladi has been further corroborated by the medical evidence PW/3 Dr M.L. Kanawat who has conducted the post mortem report of Swaroopi and prepared report Ex.P/17. Swaroopi has received two injuries on skull and cause of death is injury No.1 which is sufficient in the ordinary course of nature to cause death and this injury has been specially attributed to the present appellant. PW/3 Dr. M.L. Kanawat has also medically examined Ram Prasad and prepared the injury report Ex.P/12. Ram Prasad has also suffered incised wound on his right frontal parietal region which was found to be dangerous to life in the ordinary course of nature. Thus, medical evidence also corroborated the ocular evidence of PW/15 Manju and PW/16 Ram Khiladi.

11. The Investigation Officer PW/12 Ramsharan Lal has stated that on the information and at the instance of appellant, an Axe has been recovered from his house which was sent for State Forensic Laboratory and cloth of the deceased have also been seized Ex.P/25. FSL report (Ex.C/1) gives out that Odhani and Axe are stained with `A blood group which also strengthened the case of the prosecution.

12. The contention of the counsel for the appellant is that from the same recovered Axe, injuries has been caused to Ram Prasad but no blood-group of Ram Prasad has been found on it but this could not caste any shadow on the prosecution and reliance has been placed on John Pandian v. State, (2010) 14 SCC 129 [LQ/SC/2010/1331] ; Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 [LQ/SC/2012/796] ; and Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 [LQ/SC/2012/586] wherein it has been held that once the recovery is made in pursuance of disclosure statement made by the accused, the matching or non- matching of blood group (s) loses significance.

13. In the light of the above, PW/15 Manju and PW/16 Ram Khiladi, eye witnesses has fairly stated against the appellant that he has inflicted vital injury to Swaroopi and at the same time, dangerous to life injury has been caused to Ram Prasad. This ocular evidence has been corroborated by the medical evidence and FSL report also strengthened the prosecution case. The contention of the appellant is that appellant was not having any motive to commit the heinous crime. PW/2 Ram Prasad has stated that there was a quarrel between the wife of the deceased and ladies of appellant and Hem Raj (PW/5) has also stated that between deceased and ladies of accused persons there was a quarrel and in FIR also specific allegation has been levelled that there was a dispute regarding land of Badi hence a clear motive has been established by the prosecution.

14. The other contention of the appellant is that Ram Prasad who is alleged to have suffered dangerous to life injury has not supported the prosecution story and hence offence under Section 307 IPC could not be made out against the appellant. It is true that PW/2 Ram Prasad has not supported the prosecution story and his contention is that he has suffered the injury in an accident but PW/1 Hari Ram has stated that Swaroopi has suffered injuries and in cross- examination she has denied the factum of accident. PW/4 Laddu has also not supported the defence as regards to receiving accidental injuries. In his statement recorded under Section 313 Cr.P.C. nothing has been stated that Ram Prasad has suffered injuries due to accident and appellant has himself admitted the fact that they have now settled the enmity and the matter has been compromised hence non support of PW/2 Ram Prasad could not be treated fatal for the prosecution as PW/15 Manju and PW/16 Ram Khiladi have supported the prosecution story which is supported by the medical evidence and Forensic Science Laboratory report.

15. In the light of the above discussion, the prosecution has proved the facts beyond reasonable doubt that appellant has inflicted vital injury to Swaroopi and dangerous to life injury to Ram Prasad.

16. The contention of the appellant is that only single blow has been inflicted to Swaroopi and incident has taken place in spur of moment, there is no repetition and the case does not travel beyond the scope of Section 304 Part-II IPC but as discussed above, the appellant has inflicted vital below to Swaroopi with an Axe and that too on skull and injury No.1 has been found to be sufficient in ordinary course of nature to cause death. He has not inflicted only single blow but Ram Prasad who came to intervene has also been beaten and he has received injury on his frontal parietal bone which was opined as dangerous to life. There is no evidence that the incident has taken place at spur of moment. Per contra, the evidence of PW/15 Manju and PW/16 Ram Khiladi reveals that Swaroopi came from her agricultural field and was standing outside her house, she has been attacked, there is repetition of injuries one on Swaroopi and other on Ram Prasad and sharp weapon has been used and injuries has been caused to vital part of the body to both the injured and the deceased. Counsel for the appellant has relied upon Vijay Ramkrishan Gaikwad v. State of Maharashtra & Anr., (2012) 11 SCC 592 [LQ/SC/2012/127] where incident was not premeditated, appellant was provoked and thereafter scuffle has started. Here all such facts are missing.

17. Further reliance has been placed on Buddhu Singh & Ors. v. State of Bihar (Now Jharkhand), (2011) 14 SCC 471 [LQ/SC/2011/642] where injury was not intended towards the head, and there was no repetition. Here both the injuries were intended on head and appellant has repeated the blow. Further reliance has been placed on Bhimanna v. State of Karnataka, (2012) 9 SCC 650 [LQ/SC/2012/734] where the incident has happened on the spur of moment upon a heat of exchange of words between the parties, but here in the present case these facts are missing, even PW/2, Ram Prasad has not stated anything of this nature.

18. Hence, in the light of the above, we are not persuaded to interfere with the finding of the court below and the appeal is liable to be rejected.

Consequently, the appeal is dismissed. The judgment under appeal dated 7.11.2003 passed by Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawaimadhopur in Session Case No. 3/2003 is affirmed.

Appeal dismissed.