JUDGMENT 1. - Appellants Nanu and Mst. Shanii were tried for an offence under section 302 Indian Penal Code in the Court of the learned Sessions Judge, Sri Ganganagar. They were acquitted of the same but instead, Nanu was convicted under section 304 part I (I.P.C.) and sentenced to rigorous imprisonment for 10 years, while appellant Shanti was convicted for an offence under section 324 I.P.C, and sentenced to rigorous imprisonment for six months. The judgment of the learned Sessions Judge, against which this appeal has been preferred is dated December 16, 1971. 2. 1 have heard the arguments of the parties and perused the record, 3. The Prosecution case is that Surja Jat resident of 22 PTD police station Raisingnagar, was residing in a ``dhani" in Killa No. 25 square No. 91. Adjacent to his "dhani" there lived Jat-Sikh Teja Singh. The complainant Surjaram and his wife Mst Kununa had no issue, and, therefore, kept his brother Nanu and his wife Mst. Shanti to live with him with their children. Two days before the occurrence, Mst. Kunana however, quarrelled with Nanu and asked Surja Ram to turn him out as he was dealing in illicit liquor. Instead, he brought a tent from some Sunder Singh and asked Nanu and his wife to live in the tent outside his house. Both Nanu and his wife began to live in the tent. On 27th February, 1971, when complainant Surjaram had gone to Raisingnagar with Teja Singh, Nanu quarrelled with Mst. Kunana and beat her in the presence of Gajansingh who was living next to Tejasirigh, Gajan Singh went and informed them at 23 PAS that Mst. Kunana died on account of the "gadansi" and axe blows, inflicted by the accused persons. The medical evidence in this case was that Mst. Kunana had received the following injuries : (1) Incised wound on scalp right parietal region 3'x 1"x 1' bone underneath was completely cut and the brain was exposed. (2) Incised wound on scalp right parietal region crossing right ear 6"x ⅓"x bone deep underlying bone was completely cut and the brain was exposed. (3) Incised wound on scalp occipital region right side 5''x 11/2 bone underlying completely cut and brain was exposed. (4) Incised wound right shoulder region 21/2 x 1/2 underlying bone acromion process of right scapula was cut. (3) Incised wound on scalp occipital region right side 5''x 11/2 bone underlying completely cut and brain was exposed. (4) Incised wound right shoulder region 21/2 x 1/2 underlying bone acromion process of right scapula was cut. (5) Incised wound right forearm upper third dorsal aspect 3 x 1x 1/2x. (6) Incised wound right hand base of second and third linger l"x 1" x 1/2". (7) Incised wound left-hand palm 3"x l"x 1/2". (8) Incised wound above left leg knee 1 x 1/2" x 1 /2". (9) Incised wound on left leg skin 11/2 " x 1/2 x ⅓ . The death was on account of shock and haemorrhage due to multiple injuries, specially the skull injuries. The Medical Officer also happened to examine Nanuram after his arrest and found the following two simple injuries on his person (1) Incised wound l1/2 x 1/2'x 1/2" on right little finger medical aspect. (2) Incised wound oblique in direction 2"x 1/2"x 1/2" cutting the underlying bone superficially on scalp occipital region. 4. The case of the accused Nanu was that when he returned from the field he found his wife Shanti and Kunana quarrelling. Mst. Kunana hurled abuses on accused Shanti and also inflicted an axe blow on the head of the accused. Apprehending danger, he gave a gadansi blow on the head Mst. Kunana in self defence Mst. Kunana had fallen on account of one injury inflicted by him. He and Mst. Shanti came to Raisingnagar to lodge a report, but his report was not entertained. He could not say how Mst. Kunana sustained multiple injuries. 5. Accused Shanti's case was that she and Mst. Kunana exchanged abuses, Mst. Kunana also abused her and inflicted a blow on her. She had a blood stained shirt on her person but explained that the blood was of the injuries of her husband, She did not see her husband inflicting injuries on Mst. Kunana. 6. At the time of the trial, it appears that all the witnesses of the prosecution including Gajansingh turned hostile to the prosecution. The learned Sessions Judge, however, convicted the accused persons on the basis of the statement Ex. P8 made by Gajansingh in the committing court, which was brought on record under section 288 Cr. P.C. (Old) on the file of the Sessions case. The learned Sessions Judge, however, convicted the accused persons on the basis of the statement Ex. P8 made by Gajansingh in the committing court, which was brought on record under section 288 Cr. P.C. (Old) on the file of the Sessions case. In that statement, Gajansingh has stated thet Nanu had inflicted 2-3 ``gadansi" blows on the shoulder of Mst. Kunana. He had snatched the`Kassi'from her hand. She fell down and then he again beat her. Mst, Kunana tried to escape and also entreated the accused by saying "MAIN TERI KAALI GAYA HUN, MUJHE MAT MAAR". The learned Sessions Judge found that Gajansingh being a neighbour, his presence at the time of the occurrence cannot be doubted and his statement in the committing court was a reliable piece of evidence. The learned lower court found it proved that there was a cause for quarrel as Nanu and his wife were asked to live in a tent separate from Surja Ram and his wife and that Nanu gave beatings to her. It was urged before the learned Sessions Judge that even in the statement Ex. P 8, th witness had not explained the injuries received by the accused person, The learned Sessions Judge was of the view that looking to the circumstances it does not appear probable that Mst. Kunana could cause `kassi' blows on Nanu in the first instance. She was alone and the accused were two. Nanu accused was armed with "gadansi" and as such an attack to have been initiated by the deceased appeared not probable. Gajansingh has no doubt said at the time of the trial that Mst. Kunana also had a `kassi' and she began to assault. The accused and the deceased exchanged hot words and it was a case of sudden quarrel. In these circumstances, the learned Sessions Judge found that it was a case of culpable homicide not amounting to murder, and he convicted and sentenced the appellants as aforesaid. 7. Now the learned counsel for the appellants submits that Gajansingh was the only eye witness of the occurrence and he has also turned hostile, In his statement before the trial Court he resile from his previous statement Ex. P 8 which he gave before the committing court and even in the committing court he resiled from his police statement Ex. P 7. P 8 which he gave before the committing court and even in the committing court he resiled from his police statement Ex. P 7. Relying upon in re Muruga Goundan the learned counsel submitted that it is unsafe to convict an accused only on the evidence of a person who gave one version in the committing court and a totally different version before the Sessions court unless there is other reliable evidence in support of the prosecution. The correct legal position will be found stated in Periyasami v. State of Madras that if the matter rests upon the statement of a witness who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, there would be good ground for acquitting him. In both the Supreme Court and the Madras case the evidence recorded in the committing court was treated as substantive evidence under section 288 Cr. P.C, Therefore, the learned Sessions Judge was right in treating the statement Ex, P 8 made by Gajan Singh before the committing court as a substantive piece of evidence in the case. It was also corroborated by further evidence to which I will refer presently. Before doing that I would like to see the statement of Gajan Singh PW 2 which he made before the trial Court. In the examination-in-chief he has cited that when Mst. Kunana aimed her`kassi'which hit once on the hand of Nanu and second time on his head, thereupon Nanu delivered `gadansi' blow on the shoulder of Mst. Kunana. Upon this statement he was allowed to be cross-examined by the prosecution. He was confronted with his police statement Ex. P 7 in which he had stated at A to B that Nanu said that the woman was not to be left today and inspite of intervention by him Nanu delivered a `gadansi' blow on the head of Mst. Kunana. Thereupon Mst. Kunana hit back with the `Kassi'. This statement was admitted by him to have been made before the police. It was only with reference to Mst, Shanti that he denied the portion C to D of Ex. P 7. When he was confronted further with his statement Ex. P 1 recorded under section 564 Cr. Kunana. Thereupon Mst. Kunana hit back with the `Kassi'. This statement was admitted by him to have been made before the police. It was only with reference to Mst, Shanti that he denied the portion C to D of Ex. P 7. When he was confronted further with his statement Ex. P 1 recorded under section 564 Cr. P.C. portion A to B then at first he resiled from it but then he corrected himself to say that he had made that statement before the Tehsildar, and admitted that he had told the Tehsildar that Nanu Ram came with a `Gadansi' and began to hit Mst. Kunana when she was going to the field. He made a categorical statement that Nanu Ram hit her with `gadansi' and also abused her. He also admitted that in his statement Ex. PI he had told the Magistrate that Mst. Kunana had entreated the accused saying that she was a black cow and should not be beaten. He was then further confronted with the statement Ex. P 8 made before the committing court. He admitted portion A to B of that statement Ex. P 8 was correct wherein he had stated that both Mst. Shanti and Nanu grappled with her. Nanu had a `gadansi' while Mst. Kunana had a small `kassi'. Nanu delivered a `gadansi' blow on the right shoulder twice or thrice. Nanu then snatched the `kassi' from Mst, Kunana and threw her on the ground, it was only with reference to portion C to D which related to Mst. Shanti that he denied that Mst. Shanti had caught hold of Mst. Kunana but he admitted that it was correct that Mst. Shanti also participated in the `Marpit' thus.do not think that Gajan Singh totally desired the prosecution story, It appears that in examination-in-chief there was trying to help the accused but in cross-examination by the Public Prosecutor his conscience was awakened and he stuck to all the statements that he had made before the police, before the Tehsildar and before the Committing Magistrate firmly as far as the case of accused Nanu was concerned. Thus the statement Ex. P 3 stood corroborated by his testimony in the court itself. 8. Now since the accused was convicted on the sole testimony of Gajansingh made before the committing court, let us see, if there is anything further to connect the accused with the- offence. Thus the statement Ex. P 3 stood corroborated by his testimony in the court itself. 8. Now since the accused was convicted on the sole testimony of Gajansingh made before the committing court, let us see, if there is anything further to connect the accused with the- offence. The prosecution relies upon the recovery of blood stained `gadansi' on the information of the accused. The Chemical and the Serological reports are that the `gadansi' was stained with human blood. The Investigating Officer Atma Singh PW 10 has deposed that he had recovered the `gadansi' at the instance of the accused which was lying hidden in the ground near the road. He proved the recovery memo Ex. P 10. The recovery of the weapon of offence is a very strong corroborating evidence in favour of the prosecution. 9. The third circumstances is a recovery of blood stained clothes of Mst. Shanti which were also found to have been stained with human blood. Nanu's clothes were taken into possession by the Investigating Officer and they were also found to have been stained with human blood. Both the accused have denied these recoveries. The recovery of the blood stained clothes and the denial of the recovery itself is a very strong circumstance against the accused persons and shows their guilty conduct. 10. Another corroboration is provided by the medical evidence to which a reference has already been made. The learned counsel pointed out that Gajansingh deposed that Mst. Kunana was hit by the accused on the shoulder but the medical evidence on the contrary is that she was hit on the head. Gajan Singh therefore, cannot be said to have been corroborated by the medical evidence. I do not think that this point has much weight. If the witness sees from some distance that the deceased was being hit on the upper part of the body, it is likely that the below instead of falling on the shoulder may fall on the head but this in itself can not prove him false. The main corroboration is provided by the fact that accused assaulted Mst. Kunana with a `gadansi' and the medical witness found sharp weapon injuries on her person. 11. The main corroboration is provided by the fact that accused assaulted Mst. Kunana with a `gadansi' and the medical witness found sharp weapon injuries on her person. 11. As against this corroboration, the learned counsel for the appellants urged that Gajansingh's testimony should be rejected because he said that he related all what he saw to Banta Singh but Banta Singh/Balwant Singh PW 4 refused to support him. But this only illustrates that Banta Singh has changed the stand and has come on the side of the accused persons. Gajan Singh's testimony can further not be rejected simply on the objection that in Ex. P. 8 he did not repeat as he did in Ex. P. 7 that Mst. Kunana entreated the accused that she was a black cow and should be spared. 12. The learned counsel then pointed out that there were other persons in the neighbourhood which the prosecution has not cared to produce and an inference should be drawn that if they were produced they would have deposed against the prosecution. Firstly, the prosecution is not bound to produce all the witnesses that could be available. Secondly, it appears that there was only one eye witness and there was no point in leading many more men in the witness box. 13. Indeed the statement of the accused which he made under Section 342 Cr. P.C. leads further assurance to the prosecution case. The accused has admitted to have hit Mst. Kunana but his case was that he had done so in exercise of right of self defence. The learned counsel pointed out that the learned Sessions Judge fell into error when he split the statement of accused by accepting the part in which he admitted to have attacked the deceased but he rejected the part in which he claims his defence. If the statement of the accused is to be acted upon, then, the whole statement should be taken into consideration. There is also not much force in this argument. It is not a case where the learned lower Court has acted solely upon the statement of the accused. What appears to have influenced the learned Sessions Judge is that the statement of the accused lent support to the veracity of the core of the prosecution story. 14. There is also not much force in this argument. It is not a case where the learned lower Court has acted solely upon the statement of the accused. What appears to have influenced the learned Sessions Judge is that the statement of the accused lent support to the veracity of the core of the prosecution story. 14. Now, as regards the plea of self defence, it was urged that the injuries of the accused have not been explained by the prosecution. But their Lordships of the Supreme Court in Pooran Singh v. State of Punjab , have held that when injuries are not explained by the prosecution three consequences follow ; (i) that the accused hit in right of self defence; (ii) that the prosecution witnesses were unreliable ; and (iii) that it had no significance at ail. In this case the accused Nanu was armed with a `gadansi' while Mst. Kunana had a small`kassi'and therefore it does not appear to me to be probable that it was Mst. Kunana who hit Nanu in the first instance and that Nanu attacked her in retaliation. The-probabilities on the contrary seem to be that Mst, Kunana was hit by the `gadansi' and the helpless woman hit back with a small `kassi' which was also snatched away from her. 15. The learned counsel for the appellants Lald much stress upon the statement made by the witness Gajan Singh that Mst, Kunana lifted her `kassi' and aimed at Nanu. But then, he made this statement in the trial Court where he was declared hostile. But no such statement is found occurring in his statement Ex. P. 8 on which the conviction of the accused has been based. 16. Thus I find no force in any of the arguments that were urged before me on behalf of the appellants and I uphold the findings of the learned Sessions Judge that it was Nanu who caused the fatal injuries to Mst. Kunana, while Mst. Shanti was responsible for the simple hurts caused by sharp weapon. 17. The learned counsel then urged that the offence which the Nanu accused can be said to have committed was not under part I of section 304 but under part II thereof and he was already been behind the bars for five years. Kunana, while Mst. Shanti was responsible for the simple hurts caused by sharp weapon. 17. The learned counsel then urged that the offence which the Nanu accused can be said to have committed was not under part I of section 304 but under part II thereof and he was already been behind the bars for five years. If It a case of sudden fight as was held by the learned Sessions Judge, the sentence of the accused may be reduced to that which he had under-gone. In view of the evidence which I have discussed in detail above, it is a clear case of homicide in which injuries were caused with the intention that such injuries were likely to cause death. It is not a mere case in which the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injuries as is likely to cause death. I therefore, do not find any scope either for reducing the offence, or the sentence awarded by the learned Sessions Judge to appellant Nanu. However, J do not find any special reason for not enlarging Mst. Shanti on probation in the circumstances of the case and having regard to the offence committed by her. 18. I, therefore, as a result, direct as follows: (1) The appeal of Nanu is hereby dismissed. His conviction and' sentence are maintained. (2) The appeal of Mst. Shanti is partly allowed and though her conviction is maintained, her sentence is set aside and instead she shall be released provided she furnishes personal bond in the: amount of Rs. 1000/- and surety in the like amount to the satisfaction of the learned Sessions Judge, Sri Ganganagar, undertaking to appear and receive sentence when called upon to do so within a period of one year and in the meantime to keep the peace and be of good behaviour. She is allowed one month's time to file the aforesaid bonds. In case she fails to do so, her appeal.shall be deemed to have been dismissed. *******