JUDGMENT V.A. Mohta, J. - In Sessions Case No. 138 of 1984 tried by the Additional Sessions Judge Nagpur, the respondent accused Babu Khan has been acquitted for the offence of murder of Sakharm Zade, by inflicting injuries by means of a spear, brick bats, stones, tiles etc and aggrieved thereby the present appeal has been filed by the State. 2. The prosecution case, shortly stated is few days prior to the alleged incident which took place on 9th June 1983, the accused had gone to the house of deceased Sakharam and had threatened Digambar son of Sakharam by pointing a Gupti. On 8th June 1983, the accused went to the house of the deceased and gave a couple of kicks to Sakharam. This matter was reported by Sakharam to the police. In the night of 8th June the accused came in a drunken condition with liquor bottle in his hand and expressed displeasure over Sakharam's reporting the matter to the police. The accused was persuaded to go away. After midnight the accused again came to the house of Sakharam and slept in front of his door and left the place in the morning only when the police came there. In the afternoon of 9th July 1983, Sakharam had gone to bring milk. The accused came inside the house of Sakharam armed with a spear and abused Bhagirathibai wife of Sakharam (P.W. 2) and gave her slaps. When Sakharam returned home the accused followed him and started beating him by hitting with tiles, kicks and blows. Sakharam a started bleeding and requested for water. Accused called Shakila (P.W. 7), a minor girl residing in the same locality to bring water. Sakharam drank water and was about to go away but the accused caught his hair and dragged him towards the side of a marriage penal and threw chairs on him. Sakharam became unconscious. The accused then brought a spear and inflicted 2-3 injuries on the bead and throat of Sakharam. Sakharam was admitted to Medical College Hospital, Nagpur, where in an unconscious state be breathed his last, on the night between 12th and 13th June, 1983. He was attended by Dr. Hadke (P.W. 20). Following external injuries were noticed on the person of deceased Sakharam: 1) Lacerated wound over forehead right side 11/2" x 1/2". 2) Lacerated wound forehead right side11/2" x ¼”. 3) Lacerated wound right temporal region 11/2". He was attended by Dr. Hadke (P.W. 20). Following external injuries were noticed on the person of deceased Sakharam: 1) Lacerated wound over forehead right side 11/2" x 1/2". 2) Lacerated wound forehead right side11/2" x ¼”. 3) Lacerated wound right temporal region 11/2". 4) Lacerated wound right temporal region 11/2" x 1/4". 5) Lacerated wound right temporal region 1/2" x 1/4'" 6) Lacerated wound right temporal region 1/4" x skin deep. 7) Lacerated wound right parietal region2" x 1/2". 8) Lacerated wound right parietal region 2" x 1/4" 9) Fracture mandible. F.l.R (Exhibit: 28) was lodged by Jamil Mohd. (P.W.11) in Ganeshpeth Police Station. 3. Bhagirathibai wife of Sakharam (P.W. 2). Dashrath son of Sakharam (P. W. 3), Sk. Alam (P.W. 4), Suresh (P.W. 5), Mirabai (P.W. 6), Shakila (P.W. 7), Pushpabai (P.W. 9), and Jamil (P.W. 11) are examined in the Trial Court as eyewitnesses. Taking into consideration the evidence of Dr. Hadke (P.W. 20) about the nature of the injuries, the Trial Court did not believe the evidence of the eye-witnesses about the deceased having been injured by a spear. According to the Trial Court, several witnesses have given exaggerated version of the incident. However, the Trial Court found the evidence of Jamil (P.W. 11) quite trust worthy. It is to the effect that the deceased was beaten by the accused on the cot with fist blows which resulted into bleeding through mouth, he tried to rescue Sakharam but the accused rushed at him to beat him, he therefore, ran to the police station for lodging a report, he returned with the police within 20 minutes when he found that the deceased was being carried to the hospital from the penal. Some enmity between him and the accused is suggested but the Trial Court rightly refused to discard his testimony for that reason in the whole background. Taking into consideration that the accused had admitted that he was present in the Mandap. The Trial Court found that there was material to come to the conclusion that there had been a conflict between the accused and the deceased and the accused inflicted first blows upon the deceased as a result he received several injuries. He also held that it was possible that external injuries resulted into internal damage to the brain but that by itself was not sufficient to establish the guilt of culpaple homicide. He also held that it was possible that external injuries resulted into internal damage to the brain but that by itself was not sufficient to establish the guilt of culpaple homicide. According to the Trial Court there was evidence to prove an offence under Section 323 of the Indian Penal Code against the accused. No sentence, however, was given since the accused, as an under trial prisoner, had already suffered the punishment that may be passed for an offence under Section 323 of the Indian Penal Code. 4. With the assistance of the learned Counsel for the parties, we have gone through the record. We agree with the conclusion that use a spear in the incident has not been established There are 8 lacerated wound and a fracture of mandible which cannot be caused by a spear. Moreover, spear seized did not have blood stains. Bhagirathibai (P. W. 2) has not witnessed the incident dated 9th June. Dashrath (P.W. 3) and Sk. Alam (P.W. 4) say that the deceased was beaten with kicks and blows and with broken tiles lying nearby. Those tiles are not seized and hence that part of the story does not receive corroboration but from that circumstance their other evidence about accused having dealt the deceased with kicks and blows cannot he disbelieved. Their presence on the spot is corroborated by others. Dashrath has weak sight and Sk. Alam did not recollect the date of recording his police statement. But from those circumstances veracity of their whole evidence cannot be doubted specially when it is corroborated by other evidence. Mirabai (P.W.6) has been declared hostile but she has admitted exchange of hot words between the accused and the deceased. Shakila (P.W.7) stated that she was asked by the accused to give water to the deceased in the process of beating which she witnessed. She stated that from her door she saw the accused beating the deceased first by fist blows, pieces of tiles and later on by chairs after dragging him upto the Mandap. In the other police statements there is a reference to the fact of some girl having give water to the deceased, but her statement was not recorded. She therefore, cannot be said to be purely chance witness. Story of throwing chairs at the deceased by the accused near Mandap is narrated also by witness Sk. Alam (P.W. 4). 5. In the other police statements there is a reference to the fact of some girl having give water to the deceased, but her statement was not recorded. She therefore, cannot be said to be purely chance witness. Story of throwing chairs at the deceased by the accused near Mandap is narrated also by witness Sk. Alam (P.W. 4). 5. The incident had taken place in a day light in an open space in presence of several persons. The deceased had received severe injuries. The accused was present. Several persons have named him as the author of those injuries. There is absolutely no chance of the close relations and neighbours of the deceased falsely implicating the accused and allowing the real culprit to go scot free. Jamil's evidence has rightly been accepted. 6. One of the injuries is a fracture of mandible (inferior jaw) which is possible by a blow from fist, stick or horse kick or a fall from height. Fall from height being the cause of that injury has to be ruled out. That injury has been caused in the incident either by blow of fist or throw of chair by the accused. Thus in our view there is abundant material to come to the conclusion that the accused has caused grievous hurt to the deceased and is guilty of on offence punishable under Section 325 of the Indian Penal Code. 7. To conclude, the appeal is allowed. The order of acquittal dated 5th February, 1985 passed by the Additional Sessions Judge, Nagpur is set aside the accused is convicted under Section 325 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of two years. Set off under Section 428 of the Criminal Procedure Code for the period of detention already under gone be given to the accused. Appeal allowed.