JUDGMENT 1. -Criminal Appeal No. 391/80 is filed by accused-Roopa challenging his conviction under section 302 of the IPC recorded by the learned Sessions Judge, Sirohi in sessions case No. 50/79 on 8.9.1980. Criminal Appeal No. 820/80 is tiled by the State against the same judgment challenging the acquittal of two otheraccused persons who were tried along with Roopa for causing homicidal death amounting to murder of the deceased. In view of the fact that both the appeals arise out of the same sessions trial, they can conveniently be decided by a common order. 2. Facts giving rise to the prosecution stated briefly are that on 23.7.1979 at about 10.00 p.m., Roopa, Goga and Natha who arc all brothers assaulted one Naina which assault resulted in Naina being killed. The first information report regarding this incident was lodged on the same day and after investigation, the accused three in number were arrested and tried. The prosecution examined as many as 17 witnesses in support of its case that the accused committed murder of deceased and the several documents executed during the investigation of this crime have been duly proved by several witnesses which documents also were appreciated by the learned Additional Sessions Judge, Sirohi who recorded an order of conviction in relation to Roopa and proceeded to hold that the other two accused persons namely Goga and Natha were not guilty under section 302 and found them guilty under section 323. He has convicted Roopa to suffer imprisonment for life and a tine of Rs. 100/- or in default to undergo one month's R.I. and has convicted Goga and Natha to suffer one year's rigorous imprisonment under section 323 IPC as aforesaid. Roopa has challenged his conviction under section 302. There is no challenge to the conviction of the other accused Goga and Natha under section 323 of the IPC. they were ordered to suffer one year's R.I. It appears that they have already suffered the same. The appeal against the acquittal of these two persons under section 302 is also admitted and is being considered jointly with the appeal against conviction. 3. they were ordered to suffer one year's R.I. It appears that they have already suffered the same. The appeal against the acquittal of these two persons under section 302 is also admitted and is being considered jointly with the appeal against conviction. 3. With the assistance of the learned counsel and also the learned Public Prosecutor, we have re-appreciated the oral evidence and we have scrutinised the documentary evidence on record and on a total re-appreciation of both oral and documentary evidence, we will consider the rival contentions raised on behalf of the parties. After taking us through the evidence extensively, it was argued by Shri Sandcep Mehta for accused-Roopa that the prosecution has not come up with the entire truthful story and that there is no adequate evidence on the basis of which conviction of Roopa can be maintained. It was argued that the prosecution is guilty of shifting absence of offence, the eye-witnesses account is not proper, the deceased has met his death at the hands of someone else as a consequence of a previous enmity and the case is being highlighted on the accused person. Countering this submission, it was canvassed by the learned Public Prosecutor that the eye-witnesses were of independent nature. There is nothing in their cross-examination to require that they are disbelieved and so. the conviction as recorded by the learned Judge is proper. We have appreciated the contentions in light of the re-appreciation that we have done. 4. PW 6.7 and 10 are the eye-witnesses to the incident and they have deposed to this incident in the Court. The learned Judge has relied on the eye-witnesses account of these persons as also the fact of seizure of clothes of the accused-Roopa Arts..9 & 10 on which there were blood stains. Reliance is also placed on recovery of the axe with blood stains. This axe was seized at the instance of Roopa from his house. The seizure is proved as Ex. P/9. Chemical Report shows that blood stains on the axe seized are of human blood and it is on the basis of this evidence that the learned Judge found Roopa guilty of murder. The learned Judge has also given adequate reasons for holding Goga and Natha not guilty of murder and punishing them only under section 323 of the IPC. P/9. Chemical Report shows that blood stains on the axe seized are of human blood and it is on the basis of this evidence that the learned Judge found Roopa guilty of murder. The learned Judge has also given adequate reasons for holding Goga and Natha not guilty of murder and punishing them only under section 323 of the IPC. The main reason given by the learned Judge for the acquittal under section 302 is that there is no enmity between the deceased and these accused persons. there is no recovery of any weapon from the accused persons and there is therefore, no reason to believe that they were having a common intention of causing death of deceased Naina with Roopa. We will consider the correctness of both these findings regarding guilty of Roopa and acquittal of Goga and Natha as per our re-appreciation. 5. PW 6 Kheta is the first eye-witness examined by the prosecution. He states that he saw all the three accused persons assaulting Naina on the road. At the time of assault according to this witness, Roopa had an axe and other two accused persons had lathi. The witness has been extensively cross-examined and he has repeated in his cross-examination that he has seen the accused assaulting the deceased. He claims that he made such statement even before the police when the statement was recorded by the police. He therefore, given no explanation that this statement is not reflected in the police statement recorded earlier under section 161 of the Cr.P.c. In the cross-examination, he has also stated very candidly that he cannot tell number of blows given by each accused. Then in the cross-examination, he has further stated that he does not know where the accused ran away after assaulting Naina. Earlier before the police, he had stated that the accused ran towards the house of Roopa, this undoubtedly is a contradiction and it is possible that the witness is lying everywhere. 6. The second eye-witness is PW 7 Smt. Bedi. She has deposed that she was in her house in the evening and heard cries of Naina that he was hit. She therefore, came out of the house and saw Roopa who had an axe and two other accused persons who had lathi were assaulting the deceased. 6. The second eye-witness is PW 7 Smt. Bedi. She has deposed that she was in her house in the evening and heard cries of Naina that he was hit. She therefore, came out of the house and saw Roopa who had an axe and two other accused persons who had lathi were assaulting the deceased. She is wife of PW 6 and she has stated that her husband had gone then to the field and by the time, he came home, the accused had gone away. She had also stated that she does not know where the accused persons ran away after assaulting the Naina. Her cross-examination is almost similar to PW 6 her husband. It will be seen that PW 6 Kheta has stated in his deposition that he was in his field which is adjacent to the place where the Naina was assaulted. to the same effect is the testimony of PW 7 his wife, therefore, presence of PW 6 Khcta in his field at that time is natural and is duly corroborated. PW 6 has stated that when he reached the spot, his wife also came there and PW 7 the wife says that when she came on the scene of offence, her husband was also coming and the accused persons had ran away. Very have reliance is placed on the statement made by witness PW 7 that:- " eSaus uSfu;k ds fpYykus dh vkokt lquh ekjh;k js ekjh;k rc esa ?kj ds ckgj vkbZ :ik ds ikl dqYgkM+h Fkh vkSj nwljs nksuksa vfHk;qDrx.k ds ikl tkMh ykfB;sa FkhA rhuksa us uSuk dks dqYgkfM+;k o ykfB;ksa ls ekjihV dhA uSuk esjs [ksr esa jkLrs ij iM+k FkkA fQj dgk lM+d ij iM+k FkkA esjs ifr ml le; [ksr esa eDdh [kksnus x;k FkkA mlds vkrs&vkrs rks vfHk;qDrx.k ekj dj Hkkx x;s FksA " 7. It is contended that PW. 6 is therefore, not an eye-witness. Both the statements are obviously untruthful and it cannot be said that when the husband of PW 7 was coming towards the spot, the accused had ran away means of necessity that the assault could not have been witnessed by PW 6 from his field. It is contended that PW. 6 is therefore, not an eye-witness. Both the statements are obviously untruthful and it cannot be said that when the husband of PW 7 was coming towards the spot, the accused had ran away means of necessity that the assault could not have been witnessed by PW 6 from his field. There is no evidence on record to show that it was possible to witness the assault from the field on this ground, it cannot be said that both PW 6 and 7 are stating anything which is false. There is thus, adequate corroboration to the testimony of these witnesses in their statement that they saw Roopa giving blow of axe to deceased-Naina at the same time. It will be seen from the deposition of these two witnesses that they do not even mention two other accused persons and it is only told that all the three persons were assaulting the deceased whereas both the witnesses specifically name Roopa and saw that he was assaulting with an axe. this axe has been recovered at the instance of Roopa from his house which is found to contain blood stains. 8. The third eye-witness is PW 10 Goga who heard the commotion and went towards the scene of offence, when he saw the accused-Roopa assaulting Naina with an axe along with Natha and Goga who had sticks. He however, states that the assault was taking place near the field of PW 6 Kheta. Thus, the statement of PW 6 that he had seen the assault finds intrinsic corroboration in this statement. Factually the witness has deposed that after the commotion, both Kheta and his wife came to the scene of offence. Thus the testimony of these three eye-witnesses duly corroborates the testimony of each other and it is enough for coming to the conclusion of guilt of accused-Roopa as the axe used by Roopa is recovered and connected to him, there were blood stains on this axe and this evidence also therefore corroborates the testimony of the eye-witnesses that they saw Roopa giving axe blow to the deceased. This being the factual position, we have no hesitation in coming to the conclusion that the learned Judge was right in convicting Roopa under section 302 of the IPC. even according to the witness there did exist enmity between him and the deceased. 9. This being the factual position, we have no hesitation in coming to the conclusion that the learned Judge was right in convicting Roopa under section 302 of the IPC. even according to the witness there did exist enmity between him and the deceased. 9. In so far as the acquittal of the two other persons under section 302 is concerned, they were admittedly not armed with any lethal weapon. No particular over act on-the part is attributed to any of these two persons by any of the witnesses and therefore, the learned Judge was right in acquitting the accused under section 302 because of simple hurt as there is no evidence of these two persons sharing the common intention of Roopa. Apart from this, the reasons given by the learned Judge for the acquittal of Goga and Natha under section 323 are adequate, in any event they are not perverse and do not require interference by this Court now and is liable to be maintained. 10. In the result, therefore, the appeal by Roopa against his conviction and sentence fails and is dismissed. The appeal by the State against acquittal of Goga and Natha also fails and is dismissed. Roopa shall surrender immediately, failing which warrant of arrest be issued to send him to prison to serve out the sentence.Appeal dismissed. *******