Judgment K.J. Thaker, J.—The present appellant-original accused No. 1 has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 28.4.2005 passed by the learned 5th Fast Track Court Judge, Gondal in Sessions Case No. 117/2000, whereby, the learned trial Judge has convicted the present appellant-original Accused No. 1 under Section 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs. 2000/-, in default, to undergo further S/I for two months. The appellant is also convicted under Section 307 of IPC and sentenced to undergo R/I for a period of 10 years and to pay a fine of Rs 1000/-, in default, to undergo further S/I for two months. The appellant is also convicted under Section 37(1) and 135 of the Bombay Police Act and sentenced to undergo R/I for one year, and to pay a fine of Rs. 500/-, in default, to undergo further S/I for one month, which is impugned in this appeal. 2.1 The brief facts of the prosecution case is that on 15.8.2000 at about 7.30pm to 8.00pm, when complainant was to take supper, at that time, Chandrasinh son of his younger brother and Kumar son of his cousin brother had gone to village for engaging labourers. Thereafter, at about 8.00pm, one Kanjibhai had informed the complainant that two persons of your family are lying near the shop of Vaju Kanji. Therefore, complainant, his cousin brother Natubhai, Chandubhai and Ravjibhai went to the shop of Vaju Kanji, where they found Chandrasinh, son of his younger brother, and Kumar, son of his cousin brother, lying in injured condition in the street opposite to the said shop. At that time, wife of one Ranjitbhai and other women, who were present there, had informed the complainant that the accused have assaulted the Chandrasinh and Kumar with deadly weapons like sword, dhariya, Axe and went away. Thereafter, both the injured persons were taken to the Government Hospital, at Jetpur, and in the meantime, Chandrasinh had died and since Kumar was serious, he was taken to Rajkot hospital. 2.2 The accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellant-accused. Thereafter, both the injured persons were taken to the Government Hospital, at Jetpur, and in the meantime, Chandrasinh had died and since Kumar was serious, he was taken to Rajkot hospital. 2.2 The accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellant-accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 117/2000. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the respondents for commission of the offence under Sections 302, 307, 147, 148, 149 of IPC and Sections 37(1) and 135 of the B.P. Act. The accused have pleaded not guilty and claimed to be tried. 2.4 To prove the case against the Accused, the prosecution has examined the following witnesses: 1. Bhanjibhai Nanjibhai Dhandhal, CPI, Ex. 44 2. Raghubhai Mansukhbhai Ex. 67 3. Mahmadbhai Abubhai Ex. 69 4. Madhubhai Bhimbhai Vala Ex. 70 5. Bhavinising Mansing Chauhan Ex. 72 6. Rajubhai Bhalajibhai Ex. 75 7. Mukeshbhai Ramjibhai Ex. 76 8. Manojbhai Takhubhai Ex. 78 9. Suresh Bhanubhai Ex. 81 10. Madhubhai Chanabhai Ex. 82 11. Yogeshvan Raghuvan Ex. 84 12. Navabkha Hajikha Ex. 85 13. Mahebubbhai Osmanbhai Ex. 88 14. Hemantbhai Kanjibhai Ex. 90 15. Meghjibhai Lavabhai Ex. 95 16. Nanjibhai Laxmanbhai Ex. 98 17. Bharatsinh Bhojubha Jadeja Ex. 102 18. Ramaben Ranjitbhai Ex. 105 19. Manubhai Bachubhai Ex. 111 20. Kalubhai Jivabhai Ex. 112 21. Dr. Nikita Bharatbhai Padiya Ex. 113 22. Dr. Naginbhai Bhovanbhai Sarvaiya Ex. 122 23. Dr. Hemang Harishchandra Vasavada Ex. 135 24. Hitendrasinh Natvarsinh Ex. 139 25. BharatbhaiGovindbhai Ex. 140 26. Bahadurbhai Ranjitbhai Ex. 142 27. Kanjibhai Laxmanbhai Ex. 143 28. Kumarsinh Raisinh Ex. 147 29. Lakhubha Bhurubha Chudasama, PSI, Ex. 148 30. Kantaben w/o Nathabhai, ASI Ex. 163 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the Accused. 1. Yadi Ex. 45 2. Map Ex. 46 3. Panch rojkam Ex. 47 4. Rough map Ex. 48 5. Inquest panchnama Ex. 68 6. Panchnama of scene of offence place Ex. 71 7. Panchnama of clothes of injured Ex. 73 8. Panchnama of clothes of deceased Ex. 77 9. Panchnama of person of injured Ex. 79 10. Panchnama of clothes of accused Ex. 83 11. Map Ex. 46 3. Panch rojkam Ex. 47 4. Rough map Ex. 48 5. Inquest panchnama Ex. 68 6. Panchnama of scene of offence place Ex. 71 7. Panchnama of clothes of injured Ex. 73 8. Panchnama of clothes of deceased Ex. 77 9. Panchnama of person of injured Ex. 79 10. Panchnama of clothes of accused Ex. 83 11. Panchnama of clothes of accused Ex.86 12. Panchnama of clothes of accused Ex. 87 13. FIR Ex. 91 14. Arrest panchnama Ex. 96 15. Panchnama of muddamal weapon Ex. 99, 100 & 101 16. Arrest panchanama Ex. 103 17. Case papers of injured Ex. 114 & 115 18. Case papers of injured Ex. 116 19. Yadi for PM Ex. 117. 20. Forwarding letter Ex. 118 21. Yadi for PM Ex. 119 22. Certificate of blood group of accused Ex. 120 23. OPD case of Kalu Devayat Ex. 121 24. Certificate of blood group of accused Ex. 123 25. Yadi for blood group of accused Ex. 124 26. Copy of Yadi for blood group of accused Ex. 125 27. Case papers of blood group of accused Ex. 126 to 134 28. Injury certificate of Kumar Ex. 136 29. Letter Ex. 137 30. Refer note of injured Kumar Ex. 138 31. Forwarding letter of complaint Ex. 149 32. Report to Higher Officer by PSO Ex. 150 33. Yadi for PM Ex. 151 34. Yadi for blood sample of Kalu Devayat Ex. 152 35. Letter to FSL sending muddamal Ex. 153 36. Receipt of FSL Ex. 154 37. Forwarding letter of Chemical analyser Ex. 155 38. C.A. Report Ex. 156 39. Forwarding letter Ex. 157 40. Serological report Ex. 158 41. Station diary Nondh No. 28 Ex. 159 42. Station diary Nondh No. 29 Ex. 160 43. Station diary Nondh No. 30 Ex. 161 44. Notification Ex. 162 2.6 Thereafter, after examining the witnesses, further statement of the accused under Section 313 of CrPC was recorded in which the accused have denied the case of the prosecution. 3.1 After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 28.4.2005 has convicted the present appellant – original accused No. 1 and acquitted original accused No. 2, 3 and 5 to 10 of the charge levelled against them. 3.1 After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 28.4.2005 has convicted the present appellant – original accused No. 1 and acquitted original accused No. 2, 3 and 5 to 10 of the charge levelled against them. 3.2 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the present appellant-ori. Accused No. 1 has preferred the present appeal. 3.3 We have heard learned advocate Mr. K.B. Anandjiwala for the appellant original accused No. 1 and learned APP Ms CM Shah for the respondent-State. 4. Learned advocate Mr. Anandjiwala for the present appellant – original accused No. 1 has contended that as the panchas have turned hostile, the conviction could not have been based on the ground that the appellant had inflicted the injuries. The second contention is that the injured witness has changed the demeanor and cannot be relied on. He has further contended that there is a general charge on all the accused. In absence of any specific evidence, the present appellant is required to be granted parity with other acquitted accused. The learned trial Judge has not believed the ocular version of the witnesses for other accused persons, and therefore, he could not have believed for only one accused. The learned Judge has changed the version which is not consistent with the story propounded before him, and therefore, the doubt is created. No one was with deceased and injured witness when they were passing near the shop of Vaju Kana. The incident occurred may be on a spur of moment and there is no motive nor there is any intention, and therefore, the appeal may be allowed. It is further submitted that PW-14 Hemantbhai Kanjibhai Ex.90 is not an eye witness and the names were given by PW-18 Ramaben Ex. 105 who has turned hostile. It is further contended by the learned advocate for the appellant that the FIR was lodged after the injured was transferred to hospital. The contention was sought to be raised by the learned advocate that the injured witness was not conscious and the injured witness has become unconscious at the place of incident. It has been further contended that PW-23 Dr. Hemang H. Vasavada Ex. 135 does not say that injured was conscious. The contention was sought to be raised by the learned advocate that the injured witness was not conscious and the injured witness has become unconscious at the place of incident. It has been further contended that PW-23 Dr. Hemang H. Vasavada Ex. 135 does not say that injured was conscious. He was brought by one Pravin and the history was also given by Pravin. It has been further submitted by the learned advocate for the appellant that no names were given by the injured and the complainant. In that view of the matter, the appeal be allowed. 5. On the other hand, learned APP Ms. Shah has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. 6. Having gone through the entire evidence oral as well as documentary, and considered the ocular version and the medical evidence, it goes without saying that the injuries on the deceased were caused by sword which was inflicted by the appellant –ori. accused No. 1 and sword was also found from the possession of the present appellant. The demeanor is not such which would and which can be discarded. The scene of offence place categorically shows that a motive was there for the accused as two young boys aged 18 & 16 years while passing through his shop and returned back from Harijanvas, it was then that plan was made, however, Vaju Kana who had played a role and he alone had inflicted the injuries to the deceased and injured witness. The injured witness, PW-28 Kumarsinh Raisinh Ex.147, in his examination-in-chief, has mentioned that it was Vaju Kana, who had earlier also conveyed that they should not visit his area or shop. This shows that the incident had occurred and there was a motive, and therefore, the learned trial Judge in para-51 and 52 of the judgment has rightly come to the conclusion that it was only the present appellant-accused who was responsible for the death of deceased and the injuries to the injured witness. This shows that the incident had occurred and there was a motive, and therefore, the learned trial Judge in para-51 and 52 of the judgment has rightly come to the conclusion that it was only the present appellant-accused who was responsible for the death of deceased and the injuries to the injured witness. The medical evidence corroborates the oral testimony of the said injured witness. P.M. Note also shows the following injuries on the deceased as well as injured witness: (1) On left side of neck an incised wound of 7x2x2 inch extending from below the midpoint of chin upto back of left ear; obliquely directed with lower and anteriorly and upper and posteriorly & elliptical in shape. Margins are clear cut. Lt. Side of mandible is lower part also cut through underlying fascia, muscles & large vessels of neck (IJV & ICA) cut through. (2) On upper chest lt. Side 1 ½ inch below the middle part of lt. Clavicle an obliquely directed stab wound of 1 x ½ x cavity deep size and corresponding injury on lt. Pieora & lt. Lung of 2cmx 0.5cm cut size. (3) On lt. Side of abdomen laterally an obliquely directed incised wound of 12.5cmx0.5cmx0.5cm size seen. (4) On left forearm’s extensor aspect in middle part an obliquely directed incised wound of 3inch x1inch x ½ inch size. Margins clear cut. Underlying subcutrueous tissues. Muscles cut through on rt. Palm proximally in line of thumb upto wrist on oblique incised wound of 4inch x 1inch x ½ inch size. Margins clearcut. Underlying subcutis & muxtes cut through bone also cut through. 7. The above injuries on the deceased as well as injured witness which was possible only by the weapon used by the accused, that is, Vaju Kana, and therefore, we have no doubt in our mind that even on re-appreciation of the entire evidence, the serological report and the inquest panchnama, the evidence of PW-23 Dr. Hemang Vasavada Ex. 135 who had treated the injured and the other attending doctors can be brushed aside just because PW-18 Ramaben Ranjitbhai Ex. 105 has turned hostile. We are in complete agreement with the submissions made by the learned APP Ms. Shah that even the evidence of hostile witness can be looked into. PW-18 Ramaben Ranjitbhai Ex. Hemang Vasavada Ex. 135 who had treated the injured and the other attending doctors can be brushed aside just because PW-18 Ramaben Ranjitbhai Ex. 105 has turned hostile. We are in complete agreement with the submissions made by the learned APP Ms. Shah that even the evidence of hostile witness can be looked into. PW-18 Ramaben Ranjitbhai Ex. 105 has categorically mentioned in her evidence that at night when she has taken her supper, she had seen two bodies, one of Kumarsinh and Chandrasinh and at that time, Vaju Kana present appellant had also passed through that area, and therefore, the presence of Vaju Kana is even established by this hostile witness. Therefore, it cannot be said that those injuries were not inflicted by the present appellant-original accused No. 1. The injuries sustained by the other injured witness corroborates by the evidence of PW-23 Dr. Hemang Vasavada Ex. 135 and the medical certificate of injured witness Ex. 136, and therefore, no case is made out for acquitting or giving benefit of doubt to the present appellant and the appeal will have to be failed. 8. We are in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 9. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 28.4.2005 passed by the learned 5th Fast Track Court Judge, Gondal in Sessions Case No. 117/2000 is confirmed. R & P to be sent back to the trial Court, forthwith. However, life would not be till last breath and his case may be considered by the appropriate authority.