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Madhya Pradesh High Court · body

2007 DIGILAW 318 (MP)

HANSA v. STATE OF M P

2007-03-19

S.A.NAQVI, SHEELA KHANNA

body2007
Judgment ( 1. ) APPELLANT/accused has preferred this appeal against the judgment and order dated 27-9-94 rendered by Additional Sessions Judge, Sheopurkalan in s. T. No. 142/93, thereby convicting the appellant under Section 302 of IPC and sentencing him to suffer life imprisonment. ( 2. ) DECEASED Sukhdevwas son of the complainant Pemaji (P. W. 1) and the accused Hansa is son of Naina. Pemajis father and Nainas father were real brothers. ( 3. ) THE case of the prosecution, in brief, is that on 7-3-93, in the evening the sheep of the accused were grazing near the KHAIDAK of the complainant pemaji. Meanwhile the deceased Sukhdev brought his cows. Accused Hansa complained to the deceased that his cows are causing injuries to sheep. The deceased, then told the accused to remove the sheep, on this the accused abused the deceased. Thereafter the deceased gave a slap and leg blow to the accused and went away. On the same night villagers had gathered at a distance of about a furlong from Pemajis house for burning HOLIKA as it was a "holi Festival night". Deceased Sukhdev had also gone there for burning HOLIKA. After the holi was burnt, the deceased Sukhdev, Bhikha (P. W. 2), Amraji (P. W. 3), nimbaji (P. W. 5) and Kanji were talking and smoking and the villagers went back to the village. It is alleged that in night at around 1 oclock, the accused came there having armed with an axe and he assaulted on the left shoulder and over the back side of the deceased with the axe and ran away. The deceased died on the spot. Amraji (P. W. 3), then went to the house of the complainant Pemaji (P. W. 1) and informed him about the incident. Complainant Pemaji (P. W. 1) came to the spot and brought the dead body of the deceased along with Mansingh, Kanji and other villagers, then the complainant went to Police Station Bargava and lodged the First Information Report (Exh. P-l ). ( 4. ) INVESTIGATING Officer Rambabu Singh Bhadauria (P. W. 9) reached to the house of complainant Pemaji and after preparing inquest report (Exh. P-6), the dead body of the deceased was sent for postmortem. Dr. S. K. Bansal (P. W. 7) conducted postmortem on the dead body of the deceased and as per his report (Exh. P-l ). ( 4. ) INVESTIGATING Officer Rambabu Singh Bhadauria (P. W. 9) reached to the house of complainant Pemaji and after preparing inquest report (Exh. P-6), the dead body of the deceased was sent for postmortem. Dr. S. K. Bansal (P. W. 7) conducted postmortem on the dead body of the deceased and as per his report (Exh. P-3), he found an incised wound size 3" x 1" x 1" on the left scapula and an incised wound on the back side of the deceased. The doctor found that 8th, 9th and 10th ribs of the deceased were fractured. Both the injuries were ante-mortem and were found sufficient to cause the death of the deceased. The death was homicidal in nature. As per the opinion of the doctor, the death was caused by syncope due to excessive hemorrhage from the injuries. The clothes of the deceased were seized, sealed and handed over to police. ( 5. ) DURING investigation, spot map (Exh. P-7) was prepared. Blood stained soil and plain soil were seized from spot vide seizure memo (Exh. P-8 ). Statements of the witnesses under Section 161 of Cr. PC, were recorded by the investigating Officer. On 11-3-93 the appellant was arrested. It is said that on the basis of the disclosure statement (Exh. P-ll), recorded under Section 27 of the evidence Act, an axe was seized from the accused. Seized articles blood stained and plain soil, clothes of the deceased, Kurta, Baniyan and the axe recovered from the accused were sent for chemical examination vide letter (Exh. P-15 ). According to F. S. L. Report (Exh. P-17) received from Sagar, cuts were found on the clothes of the deceased on the back side and on the side of shoulder. In F. S. L. report (Exh. P-18), blood was found on the clothes of the deceased and on axe seized from the accused and on blood stained soil. ( 6. ) AFTER investigating, charge-sheet was filed. Accused was charged for committing an offence under Section 302 of IPC. Accused abjured his guilt and pleaded false implication due to enmity over the property dispute. At the trial, the prosecution examined the complainant Pemaji (P. W. 1), eye witnesses bhikaji (P. W. 2), Amraji (P. W. 3), Nimbaji (P. W. 5), and Lumbaji (P. W. 6), who reached on the spot with the complainant and Dr. Accused abjured his guilt and pleaded false implication due to enmity over the property dispute. At the trial, the prosecution examined the complainant Pemaji (P. W. 1), eye witnesses bhikaji (P. W. 2), Amraji (P. W. 3), Nimbaji (P. W. 5), and Lumbaji (P. W. 6), who reached on the spot with the complainant and Dr. S. K. Bansal (P. W. 7) and johrilal (P. W. 8), who is witness of memorandum and seizure memo of axe and investigating Officer Rambabu Singh Bhadauria (P. W. 9 ). No witness has been examined by the accused in defence. After conclusion of the trial and hearing the arguments of both the sides, learned trial Court vide impugned judgment found and held that prosecution has proved its case against the accused beyond doubt and that accused intentionally caused the death of the deceased by inflicting axe blows. Accordingly, the accused has been convicted under Section 302 of IPC and sentenced to suffer life imprisonment. Aggrieved by the impugned judgment, the accused has filed the present appeal. ( 7. ) IN the memo of appeal and during arguments the impugned judgment has been challenged on the grounds that the Trial Court has erred in relying upon the prosecution witnesses. The presence of the socalled eye-witnesses on the spot is extremely doubtful. Their conduct belies their presence on spot. The incident is said to have taken place in the darkness of the night and the injuries to the deceased were caused from the back. Thus, identification of the assailant was not possible. It is contended that witnesses have gone back upon their previous statements before police in material particulars and their statements are inconsistent with each other. The deceased was injured while grazing catties in the JUNGLE in night. The First Information report is extremely suspicious and ante-timed. It is submitted that it could never be a case under Section 302 of IPC because the incident has taken place all of a sudden. The alleged eye-witnesses had their own motive to falsely implicate the appellant as they had an eye on the property of the appellants father. ( 8. The First Information report is extremely suspicious and ante-timed. It is submitted that it could never be a case under Section 302 of IPC because the incident has taken place all of a sudden. The alleged eye-witnesses had their own motive to falsely implicate the appellant as they had an eye on the property of the appellants father. ( 8. ) THE submission on behalf of the State is that the eyewitnesses bhikaji (P. W. 2), Amraji (P. W. 3) and Nimbaji (P. W. 5) have clearly stated that the accused had given two axe blows to the deceased resulting his death and that the witness Amraji (P. W. 3) immediately informed the father of the deceased pemaji and then, Pemaji and Lumbaji came on spot and brought the dead body of the deceased to the house of complainant and Pemaji promptly lodged the report of the incident. The prosecution story is corroborated by medical evidence also. It is submitted that the trial Court has rightly convicted the accused on the basis of the evidence on record and appeal be dismissed. ( 9. ) WE have perused the entire evidence on record in the light of the submissions made by learned Counsel for both the parties. ( 10. ) IT is not disputed that Sukhdev son of Pemaji had died. Now, first question for consideration is as to whether the death of the deceased Sukhdev is homicidal in nature ? According to the version of Bhikha (P. W. 2), Amraji (P. W. 3) and Nimbaji (P. W. 5), accused gave two blows of axe by blunt side - one on the shoulder and the other on the back side of the deceased and blood was oozing from these injuries, resulting his death. ( 11. ) DR. S. K. Bansal (P. W. 7) deposed that he has conducted the autopsy on the dead body of the deceased on 8-3-93 at 3:20 p. m. He stated that he found an incised wound of size 3" x 1" x 1" on his left shoulder transversely and an incised wound over back of chest below left scapula extending to left side of chest obliquely size about 4 1/2" x 11/2" x 1" and from the wound spleen and large intestine were coming out. On internal examination he found that 8th, 9th and 10th ribs of the deceased were fractured. On internal examination he found that 8th, 9th and 10th ribs of the deceased were fractured. He stated that both the injuries were ante-mortem in nature and were sufficient to cause the death. Dr. Bansal opined that the death was caused by syncope due to excessive hemorrhage. His post-mortem report is exh. P-3. It is not the case of the defence that the said injuries sustained by the deceased were either accidental or self inflicted. Thus, from the version of the witnesses Bhikha (P. W. 2), Amraji (P. W. 3) and Nimbaji (P. W. 5) and from post-mortem report, it is clear that the death of the deceased is homicidal in nature. ( 12. ) NOW, the main question for consideration is as to whether accused hansa caused the death of the deceased by intentionally inflicting axe blows and thereby committed his murder ? ( 13. ) ACCORDING to the prosecution, Bhikha (P. W. 2), Amraji (P. W. 3) and nimbaji (P. W. 5) are eye-witnesses of the incident. Bhikha (P. W. 2) has deposed that the day of occurrence was HOLIKA day. The HOLIKA of the village is burnt at a place which is about a distance of one furlong from Nimbajis house. He stated that villagers had gathered there. He himself, Amraji, Nimbaji, Kanji and sukhdev were also present. At about 12-1 oclock in night HOLIKA was burnt. Thereafter, the villagers went back to their houses, but he himself, Amraji, nimbaji, Kanji and deceased Sukhdev were talking at a distance of 10 -12 feet from the place where HOLIKA was burning. The deceased was sitting in between Bhikha (P. W. 2) and Amraji (P. W. 3) and there faces were towards holika. The witness further deposed that all of a sudden accused came from behind and he gave an axe blow on the back side of the deceased. Then accused gave second blow on the shoulder of the deceased, who fell down. He cried that hansa has inflicted axe blow. The accused after inflicting axe blow ran away towards JUNGLE. At that time, there was moonlight and also light of HOLIKA. Blood was oozing from the shoulder and back side of the deceased and he had died. Then Amraji was sent to call the father of Sukhdev. After sometime sukhdevs father Pemaji, Thanji, Lumbaji and Mansingh came on the spot. He told them that Hansa had killed Sukhdev. At that time, there was moonlight and also light of HOLIKA. Blood was oozing from the shoulder and back side of the deceased and he had died. Then Amraji was sent to call the father of Sukhdev. After sometime sukhdevs father Pemaji, Thanji, Lumbaji and Mansingh came on the spot. He told them that Hansa had killed Sukhdev. Then the dead body of the deceased was taken by all to the house of the Pemaji. Pemaji was weeping. Thereafter, pemaji and Lumbaji went to Police Station Bargawa in the night to lodge the report. ( 14. ) AMRAJI (P. W. 3) and Nimbaji (P. W. 5) have fully supported and corroborated the version of Bhikha. Amraji (P. W. 3) stated that after HOLIKA was burnt, villagers went back but he himself, Bhikha, Kanji, Nimbaji and deceased Sukhdev were sitting there and talking. After half an hour accused hansa came from backside and gave two blows by axe, one on the shoulder and other on the backside of the deceased. He clearly stated to have seen the accused inflicting injuries by an axe to the deceased. In cross-examination in Para 6 he clearly stated that accused gave two blows by axe one after another and he clearly identified the accused. Similar is the statement of Nimbaji (P. W. 5 ). He also supported that the accused gave two axe blows one on the shoulder and the other on the backside of the deceased, resulting his death. ( 15. ) ACCORDING to the version of complainant Pemaji (P. W. 1), his son sukhdev had gone to burn HOLIKA in night at around 11-12 oclock. He stated that Amraji came to him and informed that Hansa has assaulted with an axe on the backside and shoulder of Sukhdev. Then he along with Mansingh, thansingh, Kanji and Amraji went to the place where HOLIKA was burnt. His son was lying dead near the HOLIKA and he had seen injuries over the backside and shoulder of his son. Then he brought the dead body of his son to his house and in the night itself he went to Police Station Bargawa with Lumbaji and lodged first Information Report (Exh. P-1 ). He also stated that on the day of occurrence in the evening the sheep of the accused were grazing near the KHAIDAX and at that time his son Sukhdev also brought his cows. P-1 ). He also stated that on the day of occurrence in the evening the sheep of the accused were grazing near the KHAIDAX and at that time his son Sukhdev also brought his cows. Hansa then complained that his cows are causing injury to sheep then his son Sukhdev told the accused to take the sheep on one side but accused did not remove the sheep from there and he abused Sukhdev. Thereafter, Sukhdev had given a slap and kicked the accused. Then accused went away from there. Pemaji stated that this incident was narrated to him by deceased Sukhdev. Thereafter, in the night the accused had inflicted axe blows to the deceased. Thus, according to Pemaji (P. W. 1), on the day of occurrence, in the evening a wordy quarrel took place between his son deceased Sukhdev and accused and on the same day in night the accused attacked and assaulted the deceased by giving axe blows. ( 16. ) LUMBAJI (P. W. 6), supported the prosecution version and deposed that he himself, Thansingh and Mansingh were present in the house of Pemaji. It was a HOLIKA day. After HOLIKA was burnt, Amraji came to call Pemaji and stated that Hansa has killed his son Sukhdev. Then he himself, Pemaji, thansingh and Mansingh along with Amraji came to the place where HOLIKA was burnt, and they found that Sukhdev was lying dead and blood was oozing from his shoulder and from backside. Then the dead body of the deceased was brought to the house of Pemaji. Then he went with Pemaji to lodge the report at police Station Bargawa and Pemaji lodged the report. ( 17. ) INVESTIGATING Officer Rambabu Singh Bhadauria (P. W. 9) has corroborated that on 08-03-93 at 9:30 a. m. Pemaji came to Police Station and lodged First Information Report (Exh. P-l), which was written by him. Then he came to the spot at Village Sirmoniya along with the staff. He found that the dead body of deceased Sukhdev was kept in the house of Pemaji. He called the witnesses by issuing Safina Form (Exh. P-5) and then prepared inquest memo (Exh. P-6) and sent the dead body of the deceased for postmortem vide application (Exh. P-3-A ). He further stated to have seized blood stained soil and plain soil from the PATOR of Pemaji where dead body was lying vide seizure memo (Exh. He called the witnesses by issuing Safina Form (Exh. P-5) and then prepared inquest memo (Exh. P-6) and sent the dead body of the deceased for postmortem vide application (Exh. P-3-A ). He further stated to have seized blood stained soil and plain soil from the PATOR of Pemaji where dead body was lying vide seizure memo (Exh. P-9 ). He stated that on the same day at 11:30 he reached to the spot and prepared spot map (Exh. P-7 ). He seized blood stained soil and plain soil from the spot itself vide seizure memo (Exh. P-8 ). Then he recorded the statement of the witnesses Pemaji, Lumbaji, Amraji, Mansingh, Kanji, Bhikha, thansingh and Nimbaji. ( 18. ) THUS on going through the evidence of the above witnesses and on reappraisal of the evidence by this Court it is clear that all the three eye-witnesses bhikha (P. W. 2), Amraji (P. W. 3) and Nimbaji (P. W. 5) have clearly deposed that accused gave two blows by an axe on the shoulder and backside of the deceased by blunt side of the axe and deceased fell down on the spot and died. Amraji (P. W. 3) immediately rushed to the house of the complainant Pemaji and informed him that accused had inflicted injuries by axe blows to the deceased. Pemaji (P. W. 1)and Nimbaji (P. W. 5) then came to the spot and brought the dead body of the deceased to house. Then Pemaji went to police station and lodged the report (Exh. P-l ). ( 19. ) DURING cross-examination of the witnesses suggestion was made by the defence that these witnesses want to grab the property- the catties, house and land of the deceased and, therefore, they are making false statement. But all the witnesses Bhikha (P. W. 2), Amraji (P. W. 3), Nimbaji (P. W. 5), Pemaji (P. W. 1), and Lumbaji (P. W. 6) have categorically denied the suggestion given by the defence. On the contrary, father of the deceased Pemaji (P. W. 1) has made it clear in cross-examination in Para 3 that his father and grand father of the accused were real brothers and before this incident there were good relations between him and father of the accused. He stated that before this incident there was no dispute between him and the family of the accused. He stated that before this incident there was no dispute between him and the family of the accused. Another suggestion given by the defence in cross-examination of these witnesses was that some unknown person had killed the deceased and the accused has been falsely implicated. This suggestion was also denied by the witnesses Bhikha, Amraji and nimbaji, who have clearly stated that the accused has assaulted the deceased. These witnesses have no previous enmity with the accused and, therefore, there is no reason for them to falsely implicate the accused and to save the actual culprit. In cross-examination a suggestion is given that in that area dacoits problem is there and earlier dacoits had killed the villagers and, therefore, it is suggested that some unknown dacoits might have killed the deceased. But there is no reason for these witnesses to save the dacoits and to falsely implicate the accused. ( 20. ) LEARNED Counsel for the defence has vehemently argued and submitted that the occurrence is stated to have taken place in the night at around 1 oclock in JUNGLE where there is no arrangement of light and, therefore, it was difficult for the witnesses to identify the actual culprit. But all the three eyewitnesses Bhikha (P. W. 2) in Para 2 and Amraji (P. W. 3) in Para 1 and Nimbaji (P. W. 5) in Para 1 has clearly stated that there was moonlight on the spot and also light of HOLIKA burning. All these witnesses and accused are of the same village sirmoniya and were knowing each other very well. Therefore, it cannot be said that it was impossible for them to identify the accused in night when there was moonlight and also light of HOLIKA burning. ( 21. ) NEXT submission of learned Counsel for the defence is that the incident had occurred on 8-3-93 at 1 oclock in night but the report (Exh. P-l) has been lodged in the morning at 9:30 a. m and there is no explanation of the delay in lodging the report. But from the statement of the witnesses, it is clear that after the incident, witness Amraji (P. W. 3) went to the house of the complainant pemaji and informed him about the incident. Then Pemaji along with other witnesses and Amraji came to the spot. But from the statement of the witnesses, it is clear that after the incident, witness Amraji (P. W. 3) went to the house of the complainant pemaji and informed him about the incident. Then Pemaji along with other witnesses and Amraji came to the spot. Thereafter, the dead body of the deceased was taken to the house of Pemaji and after that Pemaji went to lodge the report at Police Station Bargawa which is shown in the report as 15 Kilometer away. It is also to be kept in mind that after the dead body of the deceased was brought to the house, the complainant might have tried to arrange the conveyance to go to police station and naturally therefore some time could have been consumed in arranging the conveyance. Thus, looking to all these facts and circumstances, it cannot be said that there is delay in lodging the report. ( 22. ) IT has been contended by Counsel for the appellant that the presence of the alleged eye-witnesses Bhikha, Amraji and Nimbaji on the spot is doubtful because when HOLIKA was burnt and the villagers went away to their houses then there was no reason for these witnesses to stay further on the spot. But all the three witnesses have clearly stated that they were sitting on the spot and were talking. In a festival like burning HOLIKA there is nothing unnatural if deceased and the said eyewitnesses remained there for some time more to talk or to chitchat or to share their feelings of enjoyment. In festival like HOLI sometimes people go back to their places after HOLIKA PUJA and sometimes people overstay on the place to enjoy the festival. Therefore, the evidence of the eye-witnesses cannot be disbelieved on this ground that they overstayed on the spot. ( 23. ) ANOTHER contention of learned Counsel for the defence is that bhikha (P. W. 2) has admitted that in the night when he was talking with Sukhdev and others at that time the deceased had not disclosed to him that a quarrel had taken place between him and the accused in that very evening over catties. Therefore, learned defence Counsel tried to argue that the story of quarrel between the deceased and accused in the same evening is a concocted one and has been introduced to implicate the accused in the murder of the deceased. Therefore, learned defence Counsel tried to argue that the story of quarrel between the deceased and accused in the same evening is a concocted one and has been introduced to implicate the accused in the murder of the deceased. But it has come in the evidence that the accused and the deceased were relatives as the grand father of the deceased and the grand father of the accused were real brothers. Therefore, if some dispute over catties took place in the evening between them and therefore both went to their houses and matter was subsided then it is possible and probable that the deceased did not take it seriously and did not think it necessary to tell about this minor quarrel to the witnesses that had taken place between him and the accused in that evening. Therefore, on this ground no adverse inference can be drawn about the incident narrated by eye-witnesses. ( 24. ) IT has been pointed out by learned defence Counsel that in the site plan the presence of witness Bhikha has not been shown but site plan is prepared by the Investigating Officer and if he has not shown the presence of the witness on the site plan then on this ground the evidence of Bhikha cannot be treated as suspicious. ( 25. ) IT is contended by the defence Counsel that Bhikha (P. W. 2) has changed his version again and again because he has stated in Para 2 of his chief examination that he and Amraji ran after accused upto a distance of 200-250 paces but then they could not follow him as the JUNGLE started and accused had run away. But in cross-examination in Para 14 he changed his version that nimbaji and Kanji ran after the accused. But the witness has made clear in Para 14 itself that by mistake he stated earlier that he and Amraji ran after the accused and as a matter of fact Nimbaji and Kanji ran after the accused. This witness is an illiterate and rustic person and his statement in the Court is recorded after a gap of more than 11 months and, therefore, it is possible that due to inadvertence or by mistake he first narrated that he and Amraji ran after the accused but then he corrected himself and only on this ground his testimony cannot be treated as doubtful. Amraji (P. W. 3) and Nimbaji (P. W. 5) have also clearly stated that kanji and Limbaji ran after the accused but came back as the accused had run away. The defence Counsel has argued that Nimbaji (P. W. 5) in Para 2 of his statement has stated that he ran upto 50-60 steps but Bhikha stated that Nimbaji and Kanji followed upto 200 - 250 spaces. But this is also a minor inconsistency as the witnesses are illiterate villagers and it is not expected from them to exactly give the steps upto which the accused was followed by the witnesses. Learned defence Counsel has also pointed out few other minor inconsistencies and improvements in the statement of the three eye-witnesses Bhikha (P. W. 2), amraji (P. W. 3) and Nimbaji (P. W. 5) and on careful examination, it is found that the inconsistencies, improvements and omissions pointed out are of minor nature. We do not find any material contradictions, inconsistencies or improvements in the statement of these witnesses. ( 26. ) NEXT submission of the defence Counsel is that Bhikha (P. W. 2) has admitted that he had not seen the first blow being given by the accused and he stated that accused came from behind and, therefore, it was not possible for him even seeing the second blow by the accused. But from the evidence of Bhikha (P. W. 2), it is clear that when he and other witnesses and deceased were sitting then the accused came from behind and when first blow was given he could not see but then suddenly he turned his face and had clearly seen the accused giving second blow. It is amply clear that since accused came from behind and, therefore, it was not possible and natural for him to had seen the first assault. But in his sudden turn he could see the second blow being given by the accused. Again other eye-witnesses Amraji (P. W. 3) and Nimbaji (P. W. 5) have clearly stated to have seen accused giving two blows by axe. Thus, it cannot be accepted that if witness Bhikha had not seen the first blow and, therefore, it was not possible for him to have seen the second blow. ( 27. ) SO far as memorandum (Exh. P-10) of the accused and at his instance recovery of knife by seizure memo (Exh. Thus, it cannot be accepted that if witness Bhikha had not seen the first blow and, therefore, it was not possible for him to have seen the second blow. ( 27. ) SO far as memorandum (Exh. P-10) of the accused and at his instance recovery of knife by seizure memo (Exh. P-11) is concerned, the Trial court has considered the evidence led by the prosecution in Paras 35 to 39 of the impugned judgment and found and held that the evidence regarding the arrest of the accused and alleged disclosure statement about knife and the recovery of knife is not reliable and the prosecution failed to prove that the axe was got recovered by the accused. Learned defence Counsel argued that if recovery of axe is not proved, therefore, accused is entitled for acquittal but if the recovery of axe is not proved then on this ground the ocular testimony of the eye- witnesses bhikha (P. W. 2), Amraji (P. W. 3) and Nimbaji (P. W. 5) cannot be brushed aside. The version of the eye-witnesses is clear, consistent, convincing and corroborative that it was the accused, who gave two axe blows one on the shoulder and the other on backside of the deceased, resulting his death. These witnesses have no grudge or enmity with the accused. There is no evidence to show that they have any interest with the accused and, therefore, there is no reason for them to tell a lie. The conduct of Amraji is also natural, who immediately rushed to the father of the deceased and informed him and then pemaji rushed to the spot, brought the dead body of his son and then went to lodge the report at Police Station Bargawa. ( 28. ) THE ocular version of the eye-witnesses is also corroborated by medical evidence in as much as Dr. S. K. Bansal (P. W. 7), who conducted autopsy on the dead body of the deceased found two incised wound, one over left shoulder and another over the backside of chest below left scapula region. His post-mortem report is Exh. P-3. Dr. S. K. Bansal in Para 5 has made it clear that both the injuries could be caused by axe. He stated to have seized and sealed the clothes Kurta, Baniyan and Dhoti of the deceased and handover the sealed packet to police. His post-mortem report is Exh. P-3. Dr. S. K. Bansal in Para 5 has made it clear that both the injuries could be caused by axe. He stated to have seized and sealed the clothes Kurta, Baniyan and Dhoti of the deceased and handover the sealed packet to police. Investigating Officer Rambabu Singh Bhadauria (P. W. 9) has stated to have seized the sealed packet of the clothes of the deceased brought by constable Shivdayal from the hospital vide seizure (Exh. P-2) and he sent these clothes along with other articles for F. S. L vide Exh. P-15. From the report F. S. L (Exh. P-17), it is clear that cut marks were found in the Kurta and Baniyan of the deceased and blood was found on these clothes. Thus, from the version of eyewitnesses and by promptly lodged report in which the name of the accused has been clearly mentioned inflicting axe blows coupled with the medical report it is fully proved beyond doubt that the accused caused the death of the deceased by inflicting axe blows. ( 29. ) THE last submission of learned Counsel for the appellant/accused was that there was no enmity between the appellant and the deceased from before and they are near relations and on the day of occurrence, cows of Sukhdev had trampled sheep belonging to the accused and over this hot talks took place and thereafter, this incident had taken place and so under these circumstances it cannot be said that the intention of the accused was to cause the death of the deceased. Learned Counsel argued that at the most offence falls under Section 304-Part II of IPC. But it is difficult to agree with such a contention of the defence counsel. It is clear that the wordy quarrel upon the catties took place in the evening but after that both the accused and the deceased went to their houses. Thereafter, in the night at 1 oclock when HOLIKA was burnt and the deceased along with the eye-witnesses was sitting and talking on the spot then the accused having armed with an axe came from behind and at that time, without any provocation by the deceased, accused had given two axe blows one after another and ran away. Thereafter, in the night at 1 oclock when HOLIKA was burnt and the deceased along with the eye-witnesses was sitting and talking on the spot then the accused having armed with an axe came from behind and at that time, without any provocation by the deceased, accused had given two axe blows one after another and ran away. One incised wound was found over the left shoulder of size 3" x 1" x 1", the other incised wound was found over the back of chest and this blow was forceful because spleen and large intestine came out and the deceased died on the spot. Thus, it is not a case of sudden quarrel and the attacks by an axe were unprovoked. Therefore, the only legitimate inference which can be drawn is that the accused intentionally caused the death of the deceased and he has committed offence under Section 302 of IPC. We are of the definite opinion that it is not a case where a different opinion from that of the Trial Court can be taken. Thus, the Trial Court has rightly convicted the appellant/accused for commission of offence under Section 302 of IPC. ( 30. ) CONSEQUENTLY, the conviction of the appellant/accused under section 302 of IPC and sentence thereon passed by the Trial Court is hereby maintained. This appeal being devoid of any merits is hereby dismissed. Appellant/accused is directed through his Counsel to immediately surrender before the Trial Court to under go remaining part of his sentence. The Trial court is also directed to take all steps necessary to take the accused in custody to serve out the sentence. Criminal Appeal dismissed.