Judgment [Per: Hon'ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.PC.), is directed against the judgment and order dated 16-04-1998, passed by learned Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 106 of 1997, whereby accused/appellant Rajendra Singh has been convicted under Sections 302 and 323 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life under Section 302 I.P.C., and rigorous imprisonment for a period of six months under Section 3231.P.C. 2. Heard learned counsel for the parties-and perused the lower court record. 3. Prosecution story, in brief, is that on 24-11-1996, complainant Vikram Singh (PW. 1) along with his brother Narayan Singh (deceased), Kesar Singh and Guman Singh (PW.3) were going towards jungle to take fodder. When they reached in the jungle of Village Maholi, Charan Singh (PW.2) also accompanied them. At about 11:30 a.m., accused/appellant Rajendra Singh was seen coming back from the jungle and he was having a hen (hunt). Narayan Singh asked Rajendra Singh to hand over the hen to him as on some earlier occasion he had given a hen (hunt) to him and the same was due from the accused/appellant. Soon the altercation between the two took shape of heated exchanges and accused/appellant Rajendra Singh, who was armed with an axe, gave a blow on the head of Narayan Singh. After giving a blow, he did not stop and continued to give one after another blows till Narayan Singh fell down on the ground. He (Narayan Singh) died on the spot. Meanwhile, Charan Singh (PW.2) tried to intervene and stop Rajendra Singh from giving blows to the deceased but he too was assaulted by accused/appellant Rajendra Singh with the axe. He (Charan Singh) also suffered injuries. Accused/appellant Rajendra Singh ran away from the place after the incident. Vikram Singh (P.W.1) on the very day i.e. 24-11-1996, at about 2:00 p.m. went to the police station and lodged the First Information Report (Ext. A-1), which was registered as crime No. 645 of 1996, by the police relating to offence punishable under Section 304/323 I.P.C., against accused Rajendra Singh. The police came to the place of incident, took the dead body of Narayan Singh into their possession, and prepared inquest report (Ext. A-4). A-1), which was registered as crime No. 645 of 1996, by the police relating to offence punishable under Section 304/323 I.P.C., against accused Rajendra Singh. The police came to the place of incident, took the dead body of Narayan Singh into their possession, and prepared inquest report (Ext. A-4). The police party, which was led by P.W.8 Sub-Inspector S.N. Pande, who investigated the crime further prepared other necessary papers- sample seal (Ext. A-10), police form No. 13 (Ext. A-11 ), sketch of the dead body (Ext. A-12), and letter to Chief Medical Officer (Ext. A-13) for post mortem examination. Dr. J.K. Goel (PW. 6), conducted post mortem examination on 25-11-1996, at about 12:00 noon and prepared autopsy report (Ext. A-5). He recorded ante mortem injuries and opined that deceased had died due to coma as a result of ante mortem injury (head injury). PW. 8 Sub-Inspector S.N. Pande, during investigation arrested the accused Rajendra Singh from his village and on his pointing out, recovered the axe, used in the crime and prepared memorandum (Ext. A-3). Blood stained articles and blood stained soil collected from the spot were sent for chemical examination by the police. After interrogation of all the witnesses and on completion of the investigation, Investigating Officer submitted charge sheet (Ext. A-16) against the accused Rajendra Singh, for his trial in respect of offences punishable under Sections 304 and 323 I.P.C. 4. The Magistrate on receipt of the charge sheet, after giving necessary copies, as required under Section 207 Cr.P.C., appears to have committed the case to the Court of Sessions, for trial. Learned Special Judge/Additional Sessions Judge, to whom the case was transferred, after hearing the parties on 26-05-1997, framed charge of offence punishable under Section 302 IPC. and a separate charge was also framed relating to offence punishable under Section 323 IPC. for causing voluntarily hurt to Charan Singh. The accused Rajendra Singh (appellant) denied both the charges and claimed to be tried. On this, prosecution got examined P.W.1 Vikram Singh (informant and eye-witness), PW. 2 Charan Singh (injured eye-witness), P.W.3 Guman Singh (in whose presence axe was recovered on pointing out of the accused), P.W.4 Padam Singh (witness of inquest report), P.W.5 Dr. M.M. Prasad (who recorded the injuries on the person of Charan Singh and prepared injury report), P.W. 6 Dr. On this, prosecution got examined P.W.1 Vikram Singh (informant and eye-witness), PW. 2 Charan Singh (injured eye-witness), P.W.3 Guman Singh (in whose presence axe was recovered on pointing out of the accused), P.W.4 Padam Singh (witness of inquest report), P.W.5 Dr. M.M. Prasad (who recorded the injuries on the person of Charan Singh and prepared injury report), P.W. 6 Dr. J.K. Goel (who conducted post mortem examination on dead body of Narayan Singh), P.W. 7 Head Constable Sohan Singh (who on receiving the First Information Report, prepared check report- Ext. A-7), P.W.8 Sub-Inspector S.N. Pande (who investigated the crime) and PW. 9 Satya Prakash (who took the blood stained articles for chemical examination). The oral and documentary evidence was put to the accused under Section 313 Cr. P.C. to which the accused alleged the same to be false. As to why the witnesses have given statements against him, he told the court that Narayan Singh had enmity with others also and they might have killed him. However, no evidence in defence was adduced. The trial court after hearing the parties found the accused Rajendra Singh guilty of charge of offence punishable under Section 302 and 323 I.PC. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under Section 302 IPC. and to rigorous imprisonment for a period of six months under Section 323 IPC. Aggrieved by said judgment and order dated 16-04-1998, passed by the Special Judge/Additional Sessions Judge, Nainital, in sessions trial No. 106 of 1997, this appeal is filed before Allahabad High Court on 05-06-1998, where it was admitted on 08-06-1998. The appeal is received by this Court under Section 35 of UP Re-organisation Act, 2000 (Central Act 29 of 2000), for its disposal. 5. Before further discussions, we think it just and proper to mention the nature of injuries found on the person of deceased (Narayan Singh) by P.W. 6 Dr. J.K. Goel, who prepared autopsy report (Ext. A-6). The same are being reproduced below : 1. Lacerated wound 12cm x 8cm x brain deep on back of right side head, 8cm behind right ear at 10'O clock position. 2. Lacerated wound 2cm x 2cm x bone deep on right side head, 8cm above right ear at 12'O clock position. 3. An area of contusion 6cm x 4cm, around left eye, situated above and below left eye. 4. 2. Lacerated wound 2cm x 2cm x bone deep on right side head, 8cm above right ear at 12'O clock position. 3. An area of contusion 6cm x 4cm, around left eye, situated above and below left eye. 4. Multiple contusion in an area of 8cm x 6cm on the back of left side abdomen lower part. On internal examination, the Medical Officer found that the parietal bone, temporal and occipital bones were fractured. The brain matter was also found lacerated. In the opinion of the Medical Officer, deceased had died due to coma, as a result of ante mortem injury (head injury). The above mentioned report, clearly establishes on record that Narayan Singh has died a homicidal death. Now, this Court has to examine who has caused the ante mortem injuries on the person of the deceased. 6. PW.1 Vikram Singh (brother of the deceased) states that on the day of incident, he along with his brother Narayan Singh (deceased), Guman Singh (P.W.3) and one Kesar Singh, were going towards jungle. On the way, Charan Singh (PW.2) joined them. When they reached near Maholi jungle, they saw accused/appellant Rajendra Singh coming from other side. He was having a hen (hunt). Narayan Singh asked Rajendra Singh to hand over the hen to him, to which Rajendra Singh did not agree. On this, according to the witness, Narayan Singh reminded Rajendra Singh that earlier he too had given him his hunt. Thereafter quarrel picked up and Rajendra Singh, who was armed with an axe gave a blow on the person of Narayan Singh, who fell down on the ground. Charan Singh (P.W.2) came forward to the rescue of Narayan Singh but Rajendra Singh gave a blow with an axe on his person also. Thereafter, accused Rajendra Singh gave further three blows on the person of Narayan Singh I.PC. and a separate charge was also framed relating to offence punishable under Section 323 I.P.C. for causing voluntarily hurt to Charan Singh. The accused Rajendra Singh (appellant) denied both the charges and claimed to be tried. On this, prosecution got examined P.W.1 Vikram Singh (informant and eye-witness), PW. 2 Charan Singh (injured eye-witness), P.W.3 Guman Singh (in whose presence axe was recovered on pointing out of the accused), P.W.4 Padam Singh (witness of inquest report), P.W.5 Dr. The accused Rajendra Singh (appellant) denied both the charges and claimed to be tried. On this, prosecution got examined P.W.1 Vikram Singh (informant and eye-witness), PW. 2 Charan Singh (injured eye-witness), P.W.3 Guman Singh (in whose presence axe was recovered on pointing out of the accused), P.W.4 Padam Singh (witness of inquest report), P.W.5 Dr. M.M. Prasad (who recorded the injuries on the person of Charan Singh and prepared injury report), P.W. 6 Dr. J.K. Goel (who conducted post mortem examination on dead body of Narayan Singh), PW. 7 Head Constable Sohan Singh (who on receiving the First Information Report, prepared check report- Ext. A-7), P.W.8 Sub-Inspector S.N. Pande (who investigated the crime) and P.W. 9 Satya Prakash (who took the blood stained articles for chemical examination). The oral and documentary evidence was put to the accused under Section 313 Cr. P.C. to which the accused alleged the same to be false. As to why the witnesses have given statements against him, he told the court that Narayan Singh had enmity with others also and they might have killed him. However, no evidence in defence was adduced. The trial court after hearing the parties found the accused Rajendra Singh guilty of charge of offence punishable under Section 302 and 323 I.PC. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under Section 302 I.P.C. and to rigorous imprisonment for a period of six months under Section 323 I.P.C. Aggrieved by said judgment and order dated 16-04-1998, passed by the Special Judge/Additional Sessions Judge, Nainital, in sessions trial No. 106 of 1997, this appeal is filed before Allahabad High Court on 05-06-1998, where it was admitted on 08-06-1998. The appeal is received by this Court under Section 35 of U.P. Re-organisation Act, 2000 (Central Act 29 of 2000), for its disposal. 5. Before further discussions, we think it just and proper to mention the nature of injuries found on the person of deceased (Narayan Singh) by P.W. 6 Dr. J.K. Goel, who prepared autopsy report (Ext. A-6). The same are being reproduced below : 1. Lacerated wound 12cm x 8cm x brain deep on back of right side head, 8cm behind right ear at 10'O clock position. 2. Lacerated wound 2cm x 2cm x bone deep on right side head, 8cm above right ear at 12'o clock position. 3. J.K. Goel, who prepared autopsy report (Ext. A-6). The same are being reproduced below : 1. Lacerated wound 12cm x 8cm x brain deep on back of right side head, 8cm behind right ear at 10'O clock position. 2. Lacerated wound 2cm x 2cm x bone deep on right side head, 8cm above right ear at 12'o clock position. 3. An area of contusion 6cm x 4cm, around left eye, situated above and below left eye. 4. Multiple contusion in an area of 8cm x 6cm on the back of left side abdomen lower part. On internal examination, the Medical Officer found that the parietal bone, temporal and occipital bones were fractured. The brain matter was also found lacerated. In the opinion of the Medical Officer, deceased had died due to coma, as a result of ante mortem injury (head injury). The above mentioned report, clearly establishes on record that Narayan Singh has died a homicidal death. Now, this Court has to examine who has caused the ante mortem injuries on the person of the deceased. 6. PW.1 Vikram Singh (brother of the deceased) states that on the day of incident, he along with his brother Narayan Singh (deceased), Guman Singh (P.W.3) and one Kesar Singh, were going towards jungle. On the way, Charan Singh (PW.2) joined them. When they reached near Maholi jungle, they saw accused/appellant Rajendra Singh coming from other side. He was having a hen (hunt). Narayan Singh asked Rajendra Singh to hand over the hen to him, to which Rajendra Singh did not agree. On this, according to the witness, Narayan Singh reminded Rajendra Singh that earlier he too had given him his hunt. Thereafter quarrel picked up and Rajendra Singh, who was armed with an axe gave a blow on the person of Narayan Singh, who fell down on the ground. Charan Singh (P.W.2) came forward to the rescue of Narayan Singh but Rajendra Singh gave a blow with an axe on his person also. Thereafter, accused Rajendra Singh gave further three blows on the person of Narayan Singh and ran away. Injured Narayan Singh died on the spot. P.W.1 Vikram Singh states that after the incident, he lodged First Information Report (Ext. A-1) with the police. 7. The statement of above mentioned witness P.W. 1 not only gets' corroboration from the ante mortem injuries recorded by P.W.6, Dr. J.K. Goel, as mentioned in Ext. Injured Narayan Singh died on the spot. P.W.1 Vikram Singh states that after the incident, he lodged First Information Report (Ext. A-1) with the police. 7. The statement of above mentioned witness P.W. 1 not only gets' corroboration from the ante mortem injuries recorded by P.W.6, Dr. J.K. Goel, as mentioned in Ext. A-6 but also from the statement of P.W.2 Charan Singh. P.W. 2 Charan Singh has stated that on the day of incident, he was going towards jungle along with Vikram Singh (P.W.1), Guman Singh (P.W.3), Kesar Singh and Narayan Singh (deceased) to take fodder. He further told that on the way, Rajendra Singh was seen coming from the opposite direction with a hen (hunt). This witness also stated that Narayan Singh asked Rajendra Singh to give him the hen to which he did not agree. On this, quarrel picked up and Rajendra Singh gave a blow with axe on the head of Narayan Singh, who fell down on the ground. PW.2 Charan Singh further states that when he tried to intervene and save Narayan Singh, Rajendra Singh gave a blow of axe on his person also. Thereafter, according to the witness, Rajendra Singh gave more blows to Narayan Singh and ran away towards jungle. This witness produced by the prosecution is a star witness, who is having no enmity with the accused. He is an injured eye-witness. Statement of P.W.5 Dr. M.M. Prasad, shows that Charan Singh was medically examined on 24-11-1996, at 7:40 p.m. in Community Health Centre, Bazpur and injury report (Ext. A-5) was prepared by him. Said report discloses following injury on the person of Charan Singh : 1. Lacerated wound 1.2cm x .03cm on left side abdomen, skin deep, 13cm from umbilicus laterally and anteriorly. No bleeding. In the opinion of the Medical Officer, injury was caused by blunt object and nature of injury was simple. Duration about 8 hours. (It is not the case of prosecution that any blow was given from the side of blade of axe ). 8. The testimony of P.W.1 Vikram Singh andP.W.2 Charan Singh, is further corroborated from recovery of axe used in the crime, proved by P.W. 3 Guman Singh. This witness has stated that the Investigating Officer came to his village and after arrest of accused Rajendra Singh in connection with murder of Narayan Singh, interrogated him. 8. The testimony of P.W.1 Vikram Singh andP.W.2 Charan Singh, is further corroborated from recovery of axe used in the crime, proved by P.W. 3 Guman Singh. This witness has stated that the Investigating Officer came to his village and after arrest of accused Rajendra Singh in connection with murder of Narayan Singh, interrogated him. Accused Rajendra Singh disclosed that he could get recovered the axe used by him in the crime. Thereafter, the accused led the Investigating Officer towards the jungle where the axe (Ext. 1 ) was concealed. The witness further states that he accompanied the Investigating Officer at that time and memorandum (Ext. A-3) was prepared by Investigating Officer after recovery of axe. 9. P.W.4 Padam Singh is the witness of the inquest report (Ext. A-4). This witness has further proved memorandum Ext. A-2, which was prepared by the police on 25-11-1996, after taking the blood stained clothes of Charan Singh in their possession. P.W.9 Constable Satya Prakash, has stated that he took the blood stained articles for chemical examination to Agra. The Chemical Examiner's report, which is Ext. A-17 on the record, shows that apart from the human blood, hairs of human being were also found sticked to the axe, used in the crime. The Chemical Examiner, has also reported after analysis that blood stained soil taken from the spot also contained human blood. 10. Having reassessed the entire prosecution evidence, we concur with the trial court that the prosecution has successfully proved the charge of offences punishable under Sections 302 and 323 I.P.C. against accused/appellant Rajendra Singh. 11. Ms. Geeta Parihar, learned counsel for the appellant drew attention of this Court to the principle of law laid down in Ramkishan Vs. State of Maharashtra (2007) 2 Supreme Court Cases (Cri) 39, and argued that even if it is taken to be true that accused Rajendra Singh, has given blows with axe on the person of Narayan Singh, the act committed by him constitutes the offence punishable under Section 304 I.P.C. and not the one punishable under Section 302 I.P.C. We have gone through the referred case law. In the case of Ram Kishan (Supra), there was a single blow of axe, which resulted in the death of the injured. In the present case, the accused has not stopped after single blow and gave blows one after another till the deceased died. In the case of Ram Kishan (Supra), there was a single blow of axe, which resulted in the death of the injured. In the present case, the accused has not stopped after single blow and gave blows one after another till the deceased died. Not only this, he has given a blow with axe on Charan Singh, who intervened to save the deceased. In such circumstances, it cannot be said that the accused had no intention to commit the murder of the deceased. 12. Learned counsel for the accused/appellant further argued that it is a case of sudden fight on sudden provocation and even if the statement of witnesses are taken to be true, act on the part of accused cannot be said to be one that of culpable homicide amounting to murder. We are unable to agree with the submission of learned counsel for the appellant for the reason that neither the deceased had hurled abuses at the accused nor had he snatched the hen (hunt) from him. He had simply asked the accused to give him the hen (hunt), as he had earlier obliged to him. From no stretch of imagination, such a demand made by the deceased can be said to be a grave provocation. 13. We agree with the trial court that merely for the reason that in the post mortem examination report the stomach of the deceased is said to be empty, and the witnesses have stated that the deceased had taken the meals in the morning, does not create any reasonable doubt in the prosecution story, as where there is a direct evidence of eye-witnesses of the incident, such discrepancies in the evidence cannot be said to be sufficient to disbelieve the prosecution story. 14. For the reasons, as discussed above, we do not find any force in this appeal, which is liable to be dismissed. The appeal is dismissed. Registry is directed to send copy of this judgment to the concerned Superintendent of Jail, where the appellant is serving out the sentence. Lower court record be also sent back.