JUDGMENT P.R. Sharma, J. The Appellant Bhagwantsingh son of Kashiramsingh resident of village Amlipura was convicted and sentenced by the Second Addl-Sessions Judge Morena under Section 302, Indian Penal Code to undergo rigorous imprisonment for life. He has appealed against his conviction and sentence. The case for the prosecution, briefly stated, is that the deceased Parmalsingh along with PW. 1-Ganpat Singh, PW. 2-Sultansingh, PW. 3-Nawabsingh and PW. 4-Bharat Singh was cutting grass in the afternoon of the 12th of September, 1957 in Sultanaingh's field known as 'Mahidawala' field. At about 4-30 P. M. the present Appellant armed with a sword and shield along with Arjunsingh, Shankarsingh, Vidhyaram, Janaksingh, Kedarsingh and Phadolsingh arrived there and challenged the deceased. When the latter stood up Bhagwantsingh struck a blow with a sword on hie head. When Parmalsingh turned his face Janaksingh is alleged to have inflicted another injury with a sword on the right fronto-parietal region of the deceased. Thereafter the accused attacked Ganpatsingh, Nawabsingh, Sultansingh and Bharatsingh with deadly weapons as a result of which they sustained various injuries. It was only when PW. 5-Banwarilal, PW. 6-Ramcharan and one Jamunadas Baba intervened that the accused stopped inflicting further injuries and retreated from the spot. Ganpatsingh carried Parmalsingh, who was lying unconscious, to the police station at Ambah where he lodged the first-information-report Ex. P/1 at about 7-30 P. M. on the same evening. A case under Sections 307 and 148, Indian Penal Code was registered by head constable Maniksingh and Parmalsingh was sent for medical examination of his injuries. PW. 12-Dr. Prabhashankar Trivedi found an incised wound on the left side of the deceased's forehead measuring 6"x11/2"x1/2". The skull-bone was cut and fractured as a result of which the right halt of the body was rendered immobile. Without examining the other injury on the person of the deceased Dr. Trivedi issued the injury report Ex. P/7 and forwarded the injured person to the J. A. Hospital Lashkar in view of his serious condition. The other injured persons namely Nawabsingh, Bharatsingh and Sultansingh were also examined by the doctor. The injuries found by him on their persons are detailed in the injury reports Exs. P/9, P/10 and P/11 respectively. Parmalsingh was examined at J. A. Hospital Lashkar by PW 16-Dr. The other injured persons namely Nawabsingh, Bharatsingh and Sultansingh were also examined by the doctor. The injuries found by him on their persons are detailed in the injury reports Exs. P/9, P/10 and P/11 respectively. Parmalsingh was examined at J. A. Hospital Lashkar by PW 16-Dr. S.C. Dube, who found the following injuries on his person:- (i) An incised wound measuring 5"x3/4"x scalp deep extending from 11/2" above the inner end of the left eye-brow up to 2" above the left ear-The brain matter was seen projecting through this wound; (ii) An incised wound measuring 21/4x1/4" x scalp deep on the right fronto. parietal region tapering at both ends. On X-ray examination of the skull being held a fissured and depressed fracture of the skull extending from the frontal to the occipital region was detected; Parmalsingh succumbed to his injuries on the 14th of September, 1957. On internal examination the brain substance beneath injury No. 1 was found to be lacerated. The death was in the opinion of the doctor caused due to intracranial hemorrhage resulting from laceration of the brain due to fracture of the skull bones. The present Appellant along with Shankarsingh, Arjunsingh and Vidhyaram were, on the facts stated above, prosecuted and tried for offences under Sections 302, 326, 302 read with Section 34, Indian Penal Code and 326 read with Section 34, Indian Penal Code. At the conclusion of the trial the present Appellant alone was convicted under Section 302, Indian Penal Code and sentenced as above; whereas the other accused were acquitted of all charges. In his statement under Section 342, Code of Criminal Procedure the present Appellant stated that he had gone to his own field known as Neemwala field with meals for Vidhyaram. On arriving there he found his other son Arjunsingh lying wounded with Malkhan, Laladhar, Harbilas, Ganpat, Sultan and Pejram standing nearby armed with sword; Matola and Pancham were also standing there armed with 'fareas'. When the present Appellant declared that he would take his son to the police station and lodge a report about the incident, he was attacked by Bharatsingh, Ganpat, Banwarilal and others. According to the present Appellant this incident took place on the boundary line between the Neemwala and Mahidawala fields. When the present Appellant declared that he would take his son to the police station and lodge a report about the incident, he was attacked by Bharatsingh, Ganpat, Banwarilal and others. According to the present Appellant this incident took place on the boundary line between the Neemwala and Mahidawala fields. He further pleaded that as a result of injuries caused to him by Bharatsingh and Banwarilal with sticks and Ganpat-eingh with a sword, he fell down and became unconscious. The Appellant stated that he did not know what took place thereafter. The Appellant did not adduce any evidence in support of his version. The conviction of the present Appellant rests mainly on the direct testimony of PW. 1-Ganpatsingh, PW. 2-Sultansingh, PW. 3-Nawabsingh, PW. 4-Bharatsingh, PW. 6-Banwarilal, PW. 6-Ramoharan, PW. 7-Mahabirsingh, PW. 8-Panchamsingh and the statement of Jamunadas Baba made in the committing Court which was admitted in evidence at the trial under the provisions of Section 33 of the Evidence Act. At the outset it was argued by the Learned Counsel for the present Appellant that the statement made by Jamunadas Baba in the committing Court was wrongly admitted in evidence under Section 33 of the Evidence Act without recording any evidence about the fact of the said witness not being found after due search. Reliance was placed in support of this contention on the case of Chainchal Singh v. Emperor AIR 1946 PC 1. It appears that the Court ordered the statement of Jamunadas Baba in the committing Court to be taken on record on the basis of an application made by the learned Public Prosecutor stating that the witness could not be found and that his evidence in the committing Court should therefore, be read as evidence at the trial under the provisions of Section 33 of the Evidence Act. It is true that no objection was taken by the counsel for the defence to the grant of this prayer; but as observed by their Lordships of the Privy Council in Chainchalsingh's case (1) the accused cannot in a criminal trial waive proof of a material fact. It is true that no objection was taken by the counsel for the defence to the grant of this prayer; but as observed by their Lordships of the Privy Council in Chainchalsingh's case (1) the accused cannot in a criminal trial waive proof of a material fact. The fact that a person is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or his presence cannot be secured without any amount of delay or expense which the Court in the circumstances of the case considers as unreasonable is a condition precedent to the applicability of Section 33 of the Evidence Act to any previous deposition of the witness. This fact must be proved by legal evidence and it is not open to the accused to waive its proof. Since no evidence was adduced by the prosecution in the case in order to prove that Jamunadas Baba could not be found after a diligent search for him bad been made at all places where he could normally be expected to be found, I am of opinion that his statement before the committing Court could not be admitted in evidence at the trial under the provisions of Section 33 of the Evidence Act. On excluding his testimony from consideration it has to be seen whether the remaining evidence is sufficient for the conviction of the present Appellant being maintained. PW. 1-Ganpatsingh stated that he along with Parmal, Sultansingh, Bharatsingh and Nawabsingh was cutting grass in Sultansingh's field and that the accused along with Janaksingh and others came there armed with a sword. The witness further stated that when i armalsingh got up, the present Appellant struck Parmal a blow with his sword on the left side of his head and that Janaksingh struck a blow with a 'farsa' on the right side of Parmal's head. This statement of Ganpatsingh is corroborated by Sultansingh, Nawabsingh and Bharatsingh. Ganpatsingh, it may be noted, made mention in the first-information report of the fact that it was the Appellant who delivered the first blow with a sword on Parmal's head. He did not state therein that Janaksingh also caused an injury on Parmal's head with a 'farsa'. This statement of Ganpatsingh is corroborated by Sultansingh, Nawabsingh and Bharatsingh. Ganpatsingh, it may be noted, made mention in the first-information report of the fact that it was the Appellant who delivered the first blow with a sword on Parmal's head. He did not state therein that Janaksingh also caused an injury on Parmal's head with a 'farsa'. At the trial Ganpatsingh, as also the other persons who were then working at the Mahidawala field, made a uniform statement that after Bhagwantsingh had struck a blow with his sword on the left side of Parmal's head, Janaksingh delivered a blow with his 'farsa' on Parmal's head. This evidence was not believed by the trial Court mainly for the reason that in the first information report no mention was made about Janaksingh having caused an injury on Parmal's head with a 'farsa'. The Learned Counsel for the present Appellant urged that since this witness had made an attempt to falsely implicate Janaksingh, his testimony should not be relied on as against Bhagwantsingh also. A similar contention was advanced in the case of Gurcharansingh and Anr. v. State of Punjab AIR 1956 SC 460 wherein it was observed by their Lordships of the Supreme Court that merely because two of the four accused had been acquitted, though the evidence against all of them, so far as the direct testimony went, was the same it does not necessarily follow that the other two must be similarly acquitted. This contention of the Learned Counsel cannot, therefore, be accepted. It was next argued by the Learned Counsel that these witnesses had made inconsistent statements even about the injuries caused to them individually and, therefore, no reliance should be placed on their testimony. It is necessary in this connection to bear in mind the sequence of events as they took place at the time of the incident. The witnesses who along with the deceased were cutting grass in the Mahidawala field would be in a position clearly to see the fact that the first blow on the deceased's head was struck by Bhagwantsingh. After Parmal had been seriously wounded it would be only natural to expect that persons on both sides should have resorted to violence against each other. After Parmal had been seriously wounded it would be only natural to expect that persons on both sides should have resorted to violence against each other. In the confusion that followed it is not unlikely that these witnesses were not in a position to see with precision as to who bad caused the injuries sustained by each of them. Since no one has been convicted with regard to the injuries caused to other members of the deceased's party, whose presence at the spot cannot be doubted, I do not consider it proper to discard their testimony on this ground alone. Yet another point urged by the Learned Counsel for the present Appellant was that since the prosecution witnesses had not given any explanation regarding the injuries found on the person of the Appellant no reliance should be placed on their testimony. Where the surrounding circumstances of the case render it likely that the accused might have acted in the exercise of right of private defence, the omission on the part of the prosecution witnesses to explain the injuries found on the person of the accused would normally be treated as a circumstance favourable to the defence. But in a case where a number of persons engage in a mutual fight it is not natural to expect that the prosecution witnesses should be in a position precisely to state as to who caused the injuries found on the persons belonging to the opposite party. In a case like the present where a diffused fight took place between the members of the deceased's party and those who accompanied the present Appellant, it would not, in my opinion, be proper to discredit the testimony of the eye-witnesses on the sole ground that they have not been able to explain how and at whose hands the present Appellant sustained injuries on his person Ganpatsingh has clearly stated that in the confusion that followed the deadly assault on Parmal, he could not see as to who caused injuries to the accused. I do not consider anything so unnatural in this statement of the witness as could justify his testimony being altogether rejected from consideration. Sultansingh stated that after Parmal had fallen down the accused opened an assault on him and his other colleagues. I do not consider anything so unnatural in this statement of the witness as could justify his testimony being altogether rejected from consideration. Sultansingh stated that after Parmal had fallen down the accused opened an assault on him and his other colleagues. He could not, therefore, see as to who caused injuries to Nawabsingh and Ganpatsingh nor could be notice any injuries on the person of the accused, since they all ran away at the close of the incident. Nawabsingh also stated that after Parmal had fallen down the accused separately assaulted each of the persons then present at the field. It would thus appear that each of these witnesses on being attacked by some of the accused could hardly be in a position to see what happened to the rest of the parties to the fight. PW. 2-Sultansingh's evidence was criticised on the additional ground that the witness stated that Bhagwantsingh had struck a farsa blow from behind with his left band on the left side of Parmal's head. This witness sustained an incised injury in the course of the incident. His presence at the spot is not, therefore, open to any doubt. The mere fact that he stated that Bhagwantsingh struck a blow with his sword from behind would not render his testimony unworthy of credit. The word (sic) ought not in my opinion be construed in a strictly literal manner. PW. 3-Nawabsingh. clearly stated that the injury on the left side of Parmal's head was caused by Bhagwantsingh. I see no reason to disbelieve his testimony in so far as the present Appellant is concerned. To the same effect is the deposition of PW. 4-Bharatsingh. PW. 5-Banwarilal deposed that he was grazing the cattle in the 'Patwariwala' field adjoining the 'Mahidawala' field. Except the omission on his part to mention the part played by Janaksingh in the incident, the other contradictions in his statement to the police are not material in nature. I see no reason to discard his testimony. PW. 6-Ramcharan stated that the injury on the right side of Parmal's head was caused by Janaksingh, while the one on the left side was caused by the present Appellant. This witness saw the incident from a distance and could not. therefore, say if day of the accused persons also received injuries. I see no reason to discard his testimony. PW. 6-Ramcharan stated that the injury on the right side of Parmal's head was caused by Janaksingh, while the one on the left side was caused by the present Appellant. This witness saw the incident from a distance and could not. therefore, say if day of the accused persons also received injuries. His statement was no doubt recorded by the police at a late stage of the investigation, but no questions were put to the Investigating Officer as to the reasons for this delay. The defence cannot, in these circumstances, urge that the witness should he disbelieved on this ground alone. If any authority is needed for this proposition one will be found in the case of Shafi v. The State AIR 1953 All. 502. Mahabirsingh is the brother of Sultansingh. Still he was not questioned by the police until 20 or 25 days had elapsed after the incident. It is inconceivable that Sultansingh, who himself was injured in the incident, would not mention the name of his brother to the police as one of the persons who had witnessed the incident. I would, therefore, consider it unsafe to rely on his testimony. PW. 8-Panchamsingh and PW. 10-Jorsingh did not, as held by the trial Court, actually witness the incident. Their evidence has, therefore, to be left out of consideration. The medical evidence discloses that the injury on the left-hand side of Parmal's head was about 51/2" long. It is highly probable that it was caused with a weapon having a long blade, like a sword. The other injury on the right side of Parmal's head was tapering at both ends and was only 2 1/4" long. It could, therefore, be caused by a weapon having a small blade like a 'farsa'. The medical evidence in this case, is therefore, to say the least, not inconsistent with the direct testimony. It was next argued by the counsel for the present Appellant that th Appellant had no reason to attack the deceased and his colleagues whilst they were cutting grass in the Mahidawla field. He urged that the version of the incidents as given by Bhagwantsingh in his statement under Section 312, Code of Criminal Procedure was more cogent and probable than the one deposed to by the prosecution witnesses. PW. He urged that the version of the incidents as given by Bhagwantsingh in his statement under Section 312, Code of Criminal Procedure was more cogent and probable than the one deposed to by the prosecution witnesses. PW. 11-Amarsingh, the brother of the deceased, stated that he had obtained a patta from the Tehsil officer for a piece of cultivable land which was lying fallow and that Jorsingh, Shankar Singh and Amarsingh had objected to the grant of the patta in his favour. After the patta had been granted Janaksingh and the members of his party did not allow Amarsingh to plough the field. He, therefore, lodged the reports Ex. P/5 dated 21-8-57 and Ex. P/6 dated 7-9-57 with the police. In this connection PW. 9-Harbilas, the younger brother of Parmal, stated that on the day of occurrence he had gone to plough the land in question when Janaksingh, Bhagwantsingh, Chintaman and Mangla came there and prevented him from ploughiug the field. These facta furnish a sufficient motive for the incident which took place later in the afternoon. The accused suggested that Arjunsingh was beaten by Ganpatsingh. Sultansingh and others in the Neemwala field and that he had gone there on hearing about this incident. The medical evidence in this case establishes that Bhagwantsingh, Vidhyaram, Arjunsingh and Shankarsingh had injuries on their persons. If Bhagwantsingh had gone alone to the Neemwala field, how could Vidhyaram and Sultansingh receive the injuries found on their persons ? The fact that Parmal, Nawabsingh, Bharatsingh and Sultansingh all received incised injuries points to the conclusion that sharp edged weapons were used against them in the course of the incident. Bhagwantsingh's statement does not in any way explain this fact. No evidence was adduced to prove the alleged earlier incident with Arjunsingh, I have, therefore, no hesitation in holding Bharatsingh's version of the incident to be inherently improbable. Lastly it was argued by the Learned Counsel for the present Appellant that no blood-stains were found by the police in the Mahidawala field and, therefore, it could not be held with certainty that the incident took place there. It has to be remembered that the incident took place during the rainy season in the month of September and that even according to the present Appellant it took place on the 'med' between the Mahidawala and the Neemwala fields. It has to be remembered that the incident took place during the rainy season in the month of September and that even according to the present Appellant it took place on the 'med' between the Mahidawala and the Neemwala fields. I do not, therefore, see any force in this contention. In the result I find that the prosecution evidence establishes beyond all reasonable doubt that the accused intentionally caused with a sword an injury on the left side of Parmal's head and that the injury was sufficient in the ordinary course of nature to cause his death. His conviction under Section 302, Indian Penal Code must, therefore, be and is hereby maintained. He has already been awarded the lesser penalty. In the result I do not see any force in this appeal. It is hereby dismissed, and the conviction and sentence passed by the trial Court are hereby maintained. I agree. Appeal dismissed