JUDGMENT 1. - Heard the learned Amicus Curiae for the appellant as well as learned Public Prosecutor. 2. This jail appeal, registered under Section 383 Cr.P.C., is preferred to question the correctness of the judgment dated 4-9-2004 passed by the learned Additional Sessions Judge, Fast Track, Dungarpur in Sessions Case No. 14 of 2004, State v. Mohan , convicting the accused-appellant - Mohan S/o Lalji Koted Meena, r/o Deval Pal Phala Kandla for the offence punishable under Sections 302 and 323 I.P.C. and sentenced him for offence under Section 302 I.P.C. to undergo life imprisonment, along with fine of Rs. 5000/-, in default of payment whereof to further undergo one year's imprisonment and for offence under Section 323 I.P.C. - to undergo one year's rigorous imprisonment, along with fine of Rs. 1000/-, in default of payment whereof to further undergo 3 month's simple imprisonment while acquitting him from offence under Section 341 I.P.C. 3. In brief, the facts of the case, as per statement of PW-2 Prakash S/o Nathu Ninama (injured), are that on 2.12.2003 Prakash left his house for proceeding to Ahmedabad for doing labour but at Kherwada Raju S/o Mohan Koted met him, who proposed that both will go to Ahmedabad tomorrow morning and today, Prakash should accompany to his house. In the morning of 3.12.2003, they left for going to Ahmedabad but Raju made him wandering in the town of Kherwada and again brought back to his house. In the evening, Shanti - brother of Prakash, upon coming to know that he has not gone to Ahmedabad and is staying at Raju Koted's house, came at Raju's house to bring him along back to home. 4. In the night of 3.12.2003 at around 8 PM, when both the brothers (Prakash and Shanti) were returning towards their home from Raju's house, Raju S/o Mohan Koted and Mohan S/o Lalji Koted (accused-appellant) came running after them. Mohan was armed with an axe while Raju was having stones in his hand. Mohan inflicted axe blow on head of Shanti, whereby he fell on the ground and then Raju hit him with stones. As Prakash tried to escape, Mohan inflicted axe blow on his left shoulder and elbow and Raju hurled stones, which hit upon his back-neck and near right eye. Thereupon, Prakash raised hue & cry to his uncles, alarming about the assault and calling them for help. As Prakash tried to escape, Mohan inflicted axe blow on his left shoulder and elbow and Raju hurled stones, which hit upon his back-neck and near right eye. Thereupon, Prakash raised hue & cry to his uncles, alarming about the assault and calling them for help. His uncles Ramesh and Babu Lal rushed to them, thereupon both Raju and Mohan fled away. 5. On account of injury, blood was draining from head of Shanti, whom both his uncles carried to Dungarpur hospital on motorcycle. At Dungarpur, doctor referred the case for Udaipur. While Prakash, his father and both uncles were carrying Shanti to Udaipur in a jeep, in the way Shanti succumbed to the injuries and died near Kherwada at around 2:30 PM in the night. Thereupon they returned to Dungarpur hospital, dead body of Shanti was placed in mortuary and Prakash was admitted to the hospital for treatment of the injuries sustained by him. 6. On the basis of oral report (Ex.P-2) by injured Prakash S/o Nathu Ninama,, while under treatment at Dungarpur hospital, on 4.12.2003 at 9:05 AM Police registered F.I.R. No. 185/2003 (Ex.P-4) against both named accused persons Raju S/o Mohan Koted and Mohan S/o La1ji Koted, for commission of offence under Sections 302, 341, 323 & 34 I.P.C. 7. After due investigation, Police filed separate challan against accused Mohan, alleging him guilty of offences punishable under Sections 341, 323 and 302 I.P.C. The accused Raju S/o Mohan Koted, being minor, separate challan was filed against him before Juvenile Court, Dungarpur, where vide order dated 20.8.2008 he was convicted under Sections 302/34, 341/34 I.P.C. However, upon appeal, Sessions Judge, Dungarpur vide order dated 16.7.2011 set aside his conviction by extending him benefit of doubt and released him on bail under Section 437A I.P.C. 8. Charge of offences under Sections 341, 323 and 302 I.P.C. was framed against the accused-appellant Mohan, who denied the allegation of crime and claimed trial. During the trial, the prosecution supported its case by producing 10 witnesses and exhibited 15 documents. 9. The accused-appellant was provided opportunity under Section 313 Cr.P.C., wherein he negated the prosecution evidence and asserted himself as innocent. In defence, DW-1 Smt. Mani and DW-2 Mohan S/o Lalji (himself) were examined and statements of Prakash recorded tinder Section 161 Cr.P.C. were exhibited as Ex.D-1. 10. 9. The accused-appellant was provided opportunity under Section 313 Cr.P.C., wherein he negated the prosecution evidence and asserted himself as innocent. In defence, DW-1 Smt. Mani and DW-2 Mohan S/o Lalji (himself) were examined and statements of Prakash recorded tinder Section 161 Cr.P.C. were exhibited as Ex.D-1. 10. The learned Additional Sessions Judge, while relying upon testimony of the prosecution witnesses, held the accused-appellant guilty for commission of offence punishable under Sections 302 & 323 I.P.C. vide impugned judgment dated 4-9-2004. He, however, was acquitted of offence under Section 341 I.P.C. Aggrieved of the judgment of conviction and sentence, the accused-appellant has preferred present appeal from jail, which was registered on 15.1.2007. 11. Learned amicus curiae submitted that the accused-appellant has been falsely implicated due to enmity, no motive for commission of alleged crime is established and conviction is based upon testimony of said eye-witness Prakash (PW-2) only, who is not reliable in the facts and circumstances of the case. 12. It is contended that PW-2 Prakash is real brother of deceased Shanti Lal and is interested and false witness. The conduct of PW-2 Prakash is quite unnatural. It is also contended that major omissions and improvements are there in the prosecution evidence. The prosecution has not produced any independent witness. Recovery of the weapon of offence - axe (kulhari) is also highly doubtful. 13. It is also contended that the co-accused Raju (juvenile) has been acquitted by the appellate Court (District Judge, Dungarpur) and case of the accused-appellant Mohan stands on the same footing and hence, in the interest of justice, the accused-appellant too deserves to be acquitted. 14. Learned counsel for the accused-appellant further contended that the learned trial Judge committed grave error in relying upon testimony of relative and interested prosecution witnesses. Learned lower Court has not considered the defence in true sense, hence, in the interest of justice, the accused-appellant deserves to be acquitted. 15. While opposing the appeal, learned Public Prosecutor supported the impugned judgment passed by learned Additional Sessions Judge (FT), Dungarpur and submitted that there is no reason to disbelieve the evidence of prosecution witnesses and the evidence of eye-witness Prakash (PW-2). It is submitted that the eye-witness Prakash has supported the prosecution case and his evidence is quite natural, reliable and there is neither any improvement nor any material contradiction or omission in the facts and circumstances of this case. It is submitted that the eye-witness Prakash has supported the prosecution case and his evidence is quite natural, reliable and there is neither any improvement nor any material contradiction or omission in the facts and circumstances of this case. The incident occurred on 3-12-2003 at 8 PM and the F.I.R. was lodged at 8:30 AM on 4-12-2003 in the General Hospital, Dungarpur. In such short period, there is no possibility to implicate the accused falsely. 16. It is further submitted that the prosecution has proved its case beyond reasonable doubts so as to establish that it was the accuused-appellant who committed the instant crime, by producing eye-witness Prakash, recovery of axe (kulhari), FSL report and medical evidence. So, it is a case fully proved by the prosecution and guilt is proved beyond doubt against the accused-appellant and there is no reason to disbelieve the prosecution evidence. The learned trial Judge considered each of the prosecution evidence and defence version and looking to the evidence of Dr. B.P. Venna, rightly convicted and sentenced the accused-appellant for commission of offence under Sections 302 & 323 I.P.C. Case of the co-accused Raju (juvenile) is on different footing as per evidence of the prosecution witnesses. Hence, the present appeal of accused-appellant lacks merit and the same is liable to be dismissed. 17. PW-1 Jeeva was cited witness for Ex.P-1- Panchnama of dead body. PW-2 Prakash, who himself also got injured in the incident, was cited as eye-witness of the incident. PW-3 Dr. B.P. Verma was cited to prove postmortem report of deceased Shanti Lal (Ex.P-3). PW-4 Praveen Vyas, ASI was cited as Police Officer whom oral infonnation (Ex.P-2) of the incident was made by injured Prakash in the hospital. PW-5 Harnarain Meena was cited as Malkhana in-charge of the Police Station and PW-6 Kahl Singh, Head Constable was cited for registering of the F.I.R. No. 185/2003 (Ex.P-4) on the basis of 'parcha bayan' by injured Prakash as also witness of arrest of accused Mohan and seizure of Pant & Vest of Mohan (Ex.P-11). PW-7 Nathu Lal, father of injured Prakash and deceased Shanti was cited as witness of events after occurrence of the incident. PW-8 Sangrarn Singh was cited as witness to Panchnama (Ex.P-1) as also seizure of axe (Ex.P-13), cloths etc and other memos (Exs.6, 7, 8, 9 and 13). PW-7 Nathu Lal, father of injured Prakash and deceased Shanti was cited as witness of events after occurrence of the incident. PW-8 Sangrarn Singh was cited as witness to Panchnama (Ex.P-1) as also seizure of axe (Ex.P-13), cloths etc and other memos (Exs.6, 7, 8, 9 and 13). PW-9 Babu Lal and PW-10 Ramesh, uncles of deceased Shanti and injured Prakash, reached at the cite after the incident upon hue & cry by Prakash. Ex.P-7 is site plan of occurrence and Ex.P-15 is FSL report. 18. We have considered the submissions of learned amicus curiae for the accused-appellant as well as learned Public Prosecutor and also gone through entire evidence adduced by both the parties in the matter as also record of the trial Court. 19. It is clear from the oral report made by the eye-witness Prakash (PW- 2), which was reduced in writing (Ex.P-2) submitted to Praveen Vyas, ASI (PW- 4), who reached to General Hospital, Dungarpur after receiving information from the hospital on 4-12-2003 at 8:30 AM, that in the night of 3-12-2003 at about 8 PM when Prakash and Shanti Lal (deceased) were returning to their home from Raju's house, both the accused (Raju and Mohan) came running after them. Mohan accused was armed with axe (Kulhari) and inflicted blows on head of Shanti Lal, whereupon he fell down. He (Prakash) tried to escape but accused Mohan inflicted axe blows on his left shoulder and elbow. Upon listening hue & cry, his uncles Ramesh and Babu Lal rushed to the site and then accused persons fled away. Shanti Lal was carried to Dungarpur hospital, where after examining him looking to his serious condition, they were referred to Udaipur hospital but on the way Shanti died near Kherwada at about 2:30PM. Then they came back to Dungarpur hospital, where in the morning Police came there and oral report was lodged by injured eye-witness Prakash (PW-2). 20. It is undisputed that decease Shanti Lal S/o Nathu Ninama met with homicidal death due to injuries caused by accused-appellant in this incident. Postmortem on dead body of Shanti Lal was conducted on 4-12-2003 at Government Hospital, Dungarpur and as per postmortem report Ex.P-3 and statements of Dr. 20. It is undisputed that decease Shanti Lal S/o Nathu Ninama met with homicidal death due to injuries caused by accused-appellant in this incident. Postmortem on dead body of Shanti Lal was conducted on 4-12-2003 at Government Hospital, Dungarpur and as per postmortem report Ex.P-3 and statements of Dr. B.P. Verma (PW-3), following injuries were found on the person of deceased Shanti: (i) triangular LW (lacerated wound) Left side occipital region,.clotted blood 7x2x1 cms (ii) LW Left parietal region 31/2 x 1x 3/4 erns (iii) LW Left frontal region 2 x 1/2 x-1/2 cms (iv) IW (incised wound) Rt temporal region obliquely - 6 x 1/2 x 1/2 cms with clotted blood (v) abrasion Rt shoulder 3 x 11/2 cms (vi) Contusion Rt Pectoral region transversally 7 x 11/2 cros Opening of skull: found large hematoma in between skull & scalp - removing hematoma, found fractures Left side occipital in multiple fragments, Left parietal in multiple fragments, Left frontal bones, Rt temporal bone found fractured - cutting & removing all fractured bones, found hematoma & laceration of brain lobes - Left occipital lobe 2x 1/2 x ⅓ cms, Left parietal lx 1/2 x ⅓ cms, Left frontal lobes 2x 3/4 x-1/2 cros, IW Rt temporal lobes of brains 3 x 1h x 1A-cms - All 1 to 4 injuries are dangerous to life and separately sufficient to cause death. Cause of death: injuries No. 1, 2, 3, 4 causing Neurogesic shock (head injury) leads to shock and death. 21. Present case rests upon the evidence of eye-witness PW-2 Prakash, who lodged First Information Report of the incident and also sustained 04 injuries, as per injury report dated 4-12-2003, which is on the record but not exhibited during the trial by mistake of the prosecution. PW-7 Nathu, PW-9 Babu Lal and PW10 Ramesh deposed facts about soon after the incident. 22. We have perused the statements of above witnesses and found that they have categorically and in unequivocal terms deposed about the incident and the facts of position soon after the incident. PW-2 Prakash deposed in unambiguous terms that accused Mohan was armed with an axe (kulhari) and inflicted blows on head of Shanti Lal (deceased). Indisputably, he was present at the spot and defence version is not acceptable in the facts and circumstances of the case. 23. PW-2 Prakash deposed in unambiguous terms that accused Mohan was armed with an axe (kulhari) and inflicted blows on head of Shanti Lal (deceased). Indisputably, he was present at the spot and defence version is not acceptable in the facts and circumstances of the case. 23. We have carefully gone through defence evidence also and the evidence of these witnesses does not inspire confidence and faith. In the facts and circumstances available on the record, we do not find any force in the argument advanced by learned amicus curiae for the accused appellant that co-accused Raju has been acquitted by the appellate Court (District Judge, Dungarpur) and evidence against accused Mohan also stands on the same footing and therefore, the accused-appellant also deserves to be acquitted. 24. We also noticed that PW-2 Prakash, PW-7 Nathu Lal, PW-9 Babu Lal and PW10 Ramesh, all are close relatives of deceased Shanti Lal, however, only on this ground it would be wrong to ignore or disbelieve the testimony of above witnesses including of eye-witness Prakash, who also got injured in this incident. There is no rule of law to the effect that evidence of partison witnesses can not be accepted. Partisonship by itself is no ground to discard a sworn testimony. Relative evidence are not necessarily false evidence. It should, no doubt, to be subjected to careful scrutiny and should be accepted with caution. In the facts and circumstances of the present case, evidence of prosecution witnesses does inspire faith. 25. In view of above discussion, evidence of eye-witness PW-2 Prakash, medical evidence, evidence of recovery of axe (kulhari) used for committing the crime, FSL report and the evidence of the Investigation Officer, commission of offence punishable under Section 302 I.P.C. by accused-appellant Mohan is established beyond doubt. 26. In the totality of the prosecution evidence, facts & circumstances of the case and looking to the fact that PW3 Dr. B.P. Verma, who conducted postmortem of deceased Shanti Lal, deposed that all four injuries on the head of deceased were individually sufficient in the ordinary course of nature to cause death, we do not find anything wrong in the finding given by the learned trial Court and found that learned trial Judge was fully justified in holding the accused-appellant guilty of committing the crime and sentencing him accordingly. Therefore, in our opinion, the defence version as deposed by the accused-appellant as defence witness DW-2 and DW-1 Smt. Mani, are not trustworthy, looking to the facts and circumstances of the case and the prosecution evidence on the record. 27. In view of the above, we are of considered opinion that there is no merit in this appeal. The conviction and sentence therefor imposed on the accused-appellant Mohan S/o Lalji Koted Meena, resident of Deval Pal Phala Kunda, Dungarpur vide judgment dated 4-9-2004 is legal, just and proper, based on reliable evidence produced by the prosecution and the material on the record. 28. Consequently, present appeal filed by the accused-appellant fails and the same is hereby dismissed accordingly. The conviction as well as sentence made by the Court below are affirmed.Appeal dismissed. *******