JUDGMENT 1. This appeal by the State Government is directed against the judgment of the learned Sessions Judge, Shri Ganganagar dated 13-4-70 acquitting the respondent Nanu alias Kishna of an offence punishable under section 302 of the Indian Penal Code for having committed the murder of one Sukhram by an axe and of an offence under section 323 IPC for having voluntarily caused simple injury to Budhram P. W. 5 by striking him with the blunt side of the axe. 2. The prosecution case in brief is that on the night of 30-7-1967 at about 11 P. M., the deceased Sukhram was sleeping in the open space in front of the Kutia of Budhram P. W. 5, a Sadhu of rohi of Village Bhagsar. It is also alleged that his wife Mst. Sugni P. W. 6 and their two children, Budhram P. W. 5 Sanval P. W. 8 and Pani P. W. 7 and Rukma and Ram Pyari were also sleeping near by. The accused Nanu alias Kishna came armed with an axe and struck Sukhram a blow on the neck as a result of which he died instantaneously. When Budhram who had just gone to sleep, was awakened by the noise, the accused challenged and attacked him and delivered a blow' on his hand. The accused then ran away from there. The First Information Report Ex. P. 1 was lodged by P. W. 5 Budhram at P. S. Sadar Sri Ganganagar some 10 miles away the next morning, i. e. on 31-7-67 at 8 A. M., naming the accused Nanu alias Kishna to be the assailant. The Investigation Officer lnderjeet Singh P. W. 11 reached the spot and began investigation which was completed by Mukhtiar Singh P. W. 3. The accused is said to have absconded and was not apprehended till 9-4-69 i.e. for about 2 years. Upon the information Ex. P. 9 given by the accused on 16-4-69 an axe was recovered from a heap of bricks belonging to Budhram, at the instance of the accused the same day, vide Ex. P. 7. 3. The accused abjured his guilt and denied the commission of the offence. His defence was one of complete denial. He pleaded his innocence and alleged that be was not at the spot at the time of the incident. P. 7. 3. The accused abjured his guilt and denied the commission of the offence. His defence was one of complete denial. He pleaded his innocence and alleged that be was not at the spot at the time of the incident. But on the contrary he was working as a Siri of Kirpal Singh D. W. 2 4. The learned Sessions Judge has held that the prosecution has failed to establish its case against the accused beyond all reasonable doubt. He has disbelieved the testimony of Budhram P. W. 5 on the ground that he mentioned that he could identify the accused as the night in question was a moon lit night, while according to the almanac, it was Krishna Paksha and a dark night a-d further on the ground that there was an unexplained delay in having his injury examined by Dr. Lajpatrai P W. 9 on 2-8-67. He also rejected the prosecution story that the accused had absconded from the village after the incident. 5. The recovery of the axe after two years lying not far from the scene of occurrence is hardly worth any evidence. The prosecution case solely rests on the direct testimony of Budhram P. W. 2 as corroborated by Mst. Pani P. W. 7, Sanvalram P. W. 8 and Mst Sugni P. W. 6 whose presence is not denied because they were sleeping in the Angan of Budhram P. W. 5 Dr. G. S. Grewal, P. W. 4, who conducted the post mortem examination of Sukhram on 1-8-67 in the mortuary at Sri Ganganagar at 10 A. M. found one incised wound 41/2"x 11/2" x 2" on the left side of the neck transverse in position 1/4" below the lobule of the ear. The cause of death was stated to be haemorrhage and shock on account to the injury of the neck. The injury was caused by a sharp weapon and was sufficient in the ordinary course of nature to cause death. The medical officer was further of the opinion that Sukhram might have died immediately within 15 to 20 minutes after receiving the injury. Sukhram could not speak after receiving the injury. The injury has been caused on soft tissues and muscles and no sound might have taken place by infliction of the injury on that part of the body. The medical officer was further of the opinion that Sukhram might have died immediately within 15 to 20 minutes after receiving the injury. Sukhram could not speak after receiving the injury. The injury has been caused on soft tissues and muscles and no sound might have taken place by infliction of the injury on that part of the body. This statement of the medical officer shows that deceased Sukhram was unable to speak after receiving the injury and died soon thereafter. The question, that now falls for determination is whether Budhram who claims to by an eye witness of the crime can be trusted. Budhram has given his parentage as Nathurara, while his father's name given in the First Information Report is Kaluram. It was pointed out that this difference in parentage casts a doubt whether the person who appeared in the witness box was the same person who had lodged the First Information Report. To our mind, this discrepancy has to be ignored because no question was asked to the witness in respect of the said difference in his parentage. Budhram is a Sadbu and deposed that while all the people were sleeping outside his hut, he was meditating inside the hut. When he came out and. had just gone to bed on the cot, he saw the accused coming. When the accused came and delivered an axe blow on the neck of Sukhram who was sleeping there on the cot, he recognised him that very moment because he knows him as he had visited the hut several times before. When he heard the noise, he raised his head, then hut several times before. When he heard the noise, he raised his head, then the accused challenged him to get ready and said that he would kill him too as he had killed Sukhram. When he raised an alarm, then all the people were awakened. The accused then ran and while running aimed a blow on his head which he warded off on his hand and received a blow on the hand by the blunt side of the blade of the axe. He further stated that he had given 2 Bighas of land to the deceased on Theka and 1 Bigha of land had been given by Sanval to the accused. He further stated that he had given 2 Bighas of land to the deceased on Theka and 1 Bigha of land had been given by Sanval to the accused. The deceased and the accused had quarrelled over watering of the land and when the witness intervened the accused had beaten the witness and had threatened that he will see them both the witness and the deceased. In cross examination, he deposed that he ."had seen the accused before he delivered the blow on the neck -of the deceased but he' lifted his head only when heard the noise of the blow. He also stated`that he raised .an out cry before he delivered a blow to Sukhram. Then he corrected`himself to say that he raised an alarm after the accused had inflicted the blow on Sukhran. When the accused attacked him, then Mst. Pani gave cover as she was taller and when the accused aimed the blow on his head, then he warded it off on his hand. At the time of the occurrence the moon was in the east. Mst. Sugni PW 6 deposed that her husband had told him that Nanu had threatened him about 5-7 days before when they quarrelled over water.. She woke up when the accused challenged Budhram and she had seen the accused with an axe in his hand. She had also seen the accused striking Budhram. Mst. Pani PW 7 deposed that she heard the `Lalkar' of the accused and also saw him aiming a blow on Budhram. She advanced towards Budhram. By then Budhram had warded off the blow on his hand. She had fully identified the accused in the moon lit night Sanval PW8 deposed that he was living in the Kutiya of witness Budhram. He had given I Bigha land to Nanu. The deceased and accused had quarrelled over water. He was seleeping along with others in the open space and woke up when Budhram shouted `mar diya mar diya'. He also saw the accused hitting Budhram on the head. This was the evidence on record. 6. The learned Judge as stated above disbelieved the testimony of Budhram on the ground that if the accused wanted to deal a blow to Budhram, then he would have done so by the sharp side of the weapon, it is also not natural that while running; he would give a blow to Budhram. This was the evidence on record. 6. The learned Judge as stated above disbelieved the testimony of Budhram on the ground that if the accused wanted to deal a blow to Budhram, then he would have done so by the sharp side of the weapon, it is also not natural that while running; he would give a blow to Budhram. The accused should have held the 'kulhari' in the same position that is on its blade side and then he could not have given the blow with its handle to Budhram. Budhram also stated that he received the blow while he was trying to save Mst. Pani who had given a cover to him. But Mst Pani has stated that she was awakened on hearing the threat given by the accused who had already aimed a blow at Budhram when she saw him. She omitted to state this fact in her police statement Ex D, 2. The learned trial Judge further observed that the accused was trying to conceal his identity by choosing the dark night and therefore, it did not appear natural that after dealing a blow to the deceased, he would unnecessarily challenge Budhram, thereby awakening other sleeping inmates. The learned Judge found the version of Mst. Pani, Sugni and Sanval unconvincing. He was also influenced by the fact that the delay in medical examination of the injury of Budhram has not been explained at. all. The learned Judge further found that the occurrence according to the Budhram took place at about 11 P.M. but upon consulting the almanac, the learned Judge discovered that on the fateful night moon rose at 12 in the night. 11 P. M, therefore, should have been pitch dark and it was not possible for him to have seen the accused. There were also Tali and Banyan trees around the Dhani of Budhram and these trees should have caused further darkness. It was not possible for the witnesses to recognise the accused in such darkness. The learned Judge than proceeded to state that the conduct of absconding of the accused is also not proved. Rajinder Singh, Constable PW 10 who had gone to village Halarajasar in search of the accused returned the warrant Ex P. 13 un-served after having made enquiries from the Sarpanch and members of the Panchyat. The warrant of arrest was issued on 27-1-68. The proclamation under section 87 Cr. Rajinder Singh, Constable PW 10 who had gone to village Halarajasar in search of the accused returned the warrant Ex P. 13 un-served after having made enquiries from the Sarpanch and members of the Panchyat. The warrant of arrest was issued on 27-1-68. The proclamation under section 87 Cr. P. C. (Ex P. 13) was issued on 14-11-67. It had to be pasted on the Guwad as there was no house of the accused. Duley Singh D.W. 1 another constable was given the warrant (Ex. D. 3 dated 9-8-67 had made a report that there was no person of the name of Nanu in the village Kela Rajasar. It became clear that the accused was not a resident of these villages on August 1967, then the subsequent report in Jan. 1968 that the accused was absconding was incorrect. Kripal Singh D.W.2 has deposed that the accused was his siri and was arrested while harvesting the Hadi crop and was married 5-6 months before his arrest. The fact of absconding, therefore, was not at all proved. 7. The reasons advanced by the learned Sessions Judge do not appear to us be convincing. There is no reason why Budhram, Sanval, Sugni and Mst. Pani incriminate Nanu if he was not living near them and was all this time living and working in some other village. The time of occurrence as II P.M. given by Budhram cannot be considered to be an exact hour and if the moon rose at 12 mid night, it is likely that the occurrence took place near by that time with slight light appearing in the sky. If a person is known before hand he can be recognised even in a star-lit night. Budhram is a stamped witness as he was also attacked by the accused. No doubt the injury received by him was examined late by two days and he also refused to be X-rayed, but the police officer who recorded the F.l.R. had noticed a swelling on his hand No question was asked of him why he delayed the examination of his injury. There fore, his testimony can not be discarded on account of the alleged delay in examination of his injury. 8. Absconding is a proof of the guilty conduct of the accused. On Ex.P. 14 and Ex. There fore, his testimony can not be discarded on account of the alleged delay in examination of his injury. 8. Absconding is a proof of the guilty conduct of the accused. On Ex.P. 14 and Ex. P. 13 which were issued subsequent to the warrant Ex.D. 3, it has been clearly reported that the accused was hiding himself from arrest. He had no house or lane in the village but used to.come sometime or the other. We see no reasons to disbelieve the statement of Rajendra Singh PW 10 on this point. 9. Our conclusion, therefore, is that the findings of the learned trial Judge are not correct. The ambit of the High Court in appeal whether against conviction or against acquittal is the same except that it has to be slow in reversing an acquittal for. the reason that there is a presumption of innocence in favour of the accused which is in no way weakened by acquittal and that the trial court has the advantage of watching the demeanour of the witnesses which advantage the High Court does not have In the case before us we are satisfied after examination of the record and the reasoning of the learned trial court, that the said court was not justified in taking the view it did. It is not a case where two opinions or findings were possible. The evidence which was direct and reliable and points to the conclusion that the accused committed the murder of Sukhram and caused simple hurt to the witness Budhram. 10. Accordingly, we reverse the finding of the court below, set aside the acquittal of the respondent and convict and sentence him as follows:- (a) under section 302 I.P.C. to imprisonment for life. (b) under section 323 I. P. C. to simple imprisonment for one month. Both the sentences shall run concurrently. 11. The Chief Judicial Magistrate concerned shall have the accused Nanu arrested and sent to prison for serving the sentence hereby awarded. *******