C. P. SEN, J. ( 1 ) THESE two appellants have been convicted under Section 302 read with Section 34, I. P. C. and have been sentenced to imprisonment for life for committing murder of Dhansai. ( 2 ) IT is not in dispute that appellant No. 1 Janiram and deceased Dhansai were real brothers. Kekribai (P. W. 1) is the widow of the deceased. Appellant No. 2 Samaru is distantly related to him. Ramadhar (P. W. 4) at the relevant time was working as a labourer in the field of the deceased. There was a dispute between the two brother is and the deceased had filed an application for partition which was allowed by the Revenue Court on 11/2/1982 and the field was divided between the two brothers and since then the deceased was in possession of that portion of the field known as Matarsi-Khar. The prosecution case is that on 6/11/1982 at about 9 am the deceased, his wife Kekribai and Ramadhar were transporting the harvested paddy from Matarsi-Khar They had already loaded two bullock-carts and while they were loading third bullock-cart, both the appellants came there, appellant No. 1 Janiram was armed with a sword and appellant No. 2 Samaru with an axe. Appellant No. 1 first gave a blow with his sword on the head of the deceased and then he was further assaulted by these appellants, as a result the deceased fell down dead with multiple injuries. Kekribai accompanied by Chowkidar Kartikeshwar (P. W. 2) went and lodged a report Ex. P. 1 at 1 P. M in police station Raigarh. 5 Kms. away. The police then took up investigation, seized blood-stained earth from the spot, prepared panchnama of the dead body and sent it for postmortem examination. Dr. T. R. Sahu (P. W. 3) on doing autopsy found as many as 10 injuries on the head, neck and other parts of the body causing fracture of the skull, clavicle bone mandible bone, ulna and metacarpal bones. The injuries were sufficient in the ordinary course of nature to cause death. The appellants were taken into custody and from appellant No. ls possession, bloodstained sword. (Article A) and 2 Dhotis were seized as per seizure memos Ex P. 17 and P. 18 The incriminating articles were sent for chemical examination and Chemical Examiner vide report Ex. The injuries were sufficient in the ordinary course of nature to cause death. The appellants were taken into custody and from appellant No. ls possession, bloodstained sword. (Article A) and 2 Dhotis were seized as per seizure memos Ex P. 17 and P. 18 The incriminating articles were sent for chemical examination and Chemical Examiner vide report Ex. P. 24 found presence of blood in the sword and Dhotis of appellant No. 1. On completing the investigation the appellants were charge-sheeted for the murder. Their defence is of denial and false implication. Relying in the testimony of Ramadhar (P. W. 4) corroborated by kekribai to the extent that she had seen both these appellants running away from the spot with weapons in their hands, the F. I. R. and the medical evidence, convicted both these appellants for the murder. ( 3 ) SHRI P. R. Bhave, learned counsel for the appellants contended that (i) no overt act has been alleged against the appellant No. 2 Samaru in the F. I. R. Ex. P. 1. (ii) the trial Judge has not accepted Kekribai to be the eyewitness and the sole eye-witness is Ramadhar (P W. 4) but according to him both these appellants assaulted the deceased with the sharp side of sword and axe but there are no incised injuries found on the dead body and, therefore, he is an unreliable witness, and (iii) Kekribai has admitted that appellant No. 1 was in cultivating possession of the disputed field and, as such, he has a right of self defence of property inasmuch as the deceased had been forcibly harvesting and taking away paddy from his field. According to Shri Dilip Naik, learned Government Advocate, the case has been proved beyond doubt against both these appellants and requires no interference. ( 4 ) AFTER having heard the parties and perused the record, we are of the opinion that the appeal has to be partly allowed so far as Somaru is concerned, but the conviction and sentence passed against Janiram is justified from the basis of the evidence on record. The immediate version of the incident is that given in the F. I. R. Ex. P. 1 lodged within 4 hour of the incident. In this report, no overt act has been alleged against appellant No. 2 nor there is any mention that he was carrying any weapon. The immediate version of the incident is that given in the F. I. R. Ex. P. 1 lodged within 4 hour of the incident. In this report, no overt act has been alleged against appellant No. 2 nor there is any mention that he was carrying any weapon. On the other hand, it was reported that the appellant No. 2 was accompanying the appellant No. 1 to help him in assaulting the deceased with his sword. If it was a fact that the appellant No. 2 had also assaulted the deceased with his axe. This fact would have been mentioned in the F. I. R even if Kekribai had not witnessed the earlier part of the incident. Ramadhar who was there on the spot, must have narrated to her how her husband has been assaulted. The axe alleged to have been used by the appellant No. 2 has not been seized nor any blood-stained clothes from him. The statement of Ramadhar was recorded on the next day i. e. , on 7/11/1982 and the possibility of adding overt act by the appellant No. 2 cannot be ruled out. So far as appellant No. 1 is concerned, it has been amply proved from the evidence of Ramadhar that he caused the injuries to the deceased with his sword. There were as many as 10 injuries found on the dead body by Dr. T. R. Sahu (P. W. 3) including fracture of the skull, clavicle bone, mandible bone, ulna and metacarpal bones. The injuries were sufficient to cause death in the ordinary course of nature. Blood-stained sword and two Dhotis were seized from the appellant as per seizure memus Exs. P. 17 and 18 duly proved by P. S. I. Lakhan Singh (P. W. 10) corroborated by Panch Girdharilal (P. W. 9 ). The sword (Art. A) was sent to Dr. Sahu and he opined that the injuries caused to the deceased could have been inflicted by This sword and he found blood-stains on this sword. The Chemical Examiner vide report Ex. p. 24 confirmed presence of blood on the sword and 2 Dhotis of appellant No. I. Blood-stains on the Dhotis werequite large. Sahu and he opined that the injuries caused to the deceased could have been inflicted by This sword and he found blood-stains on this sword. The Chemical Examiner vide report Ex. p. 24 confirmed presence of blood on the sword and 2 Dhotis of appellant No. I. Blood-stains on the Dhotis werequite large. The incident happened all of a sudden and it is just possible that Ramadhar, who was taken aback by the turn of events may not have actually seen as to whether the blows were given from the blunt side of the sword. He played on his imagination that blows were given from the sharp side as it is expected that when a sharp edged weapon is used, it would be used from the sharp side. The medical evidence confirms that the injuries sustained by the deceased could be caused by this sword. He evidence has been given in defence. No material has been placed by the appellant No. 1 to show that Matari-Khar was actually in his possession on the date of the incident. What Kekribai has deposed is that for the last two years they are in cultivating possession of Matarsikhar, but earlier it was given to appellant No. 1 in the panchayat for cultivation. It appears that the partition was effected by the Revenue Court in 1982 and, therefore, what she has stated appears to be true. ( 5 ) WITH the result, the appeal is partly allowed so far as appellant No. 2 Samaru is concerned, his conviction and sentence under Section 302/34, I. P. C. are set aside and he is acquitted of the charge. He be set at liberty forthwith unless required to be detained in some other case. The conviction and sentence of appellant No. 1 Janiram are maintained and his appeal is dismissed. Appeal allowed partly. .