JUDGMENT : 1. The appeal has arisen out of judgment dated 6.2.1992 passed by Sessions Judge Jaipur District, Jaipur in sessions case No.129/1987, whereby appellant was convicted for offences under Section 307 and 326 IPC and sentenced to four years' rigorous imprisonment on each count and a fine of Rs.500/- on each count; in default of payment of fine, he was further ordered to undergo one month simple imprisonment on each count. 2. Brief facts are that on 5th September, 1987 Gajanand (PW-7) submitted a written report (Ex.P-6) before SHO Police Station, Chomu alleging inter alia that accused appellant is the uncle of the complainant. Complainant and accused-appellant along with their family members are residing jointly in one house. On 3rd September, .1987 in the noon, appellant with bad intention caught hold of hand of complainant's Bhabhi Smt. Santosh. Santosh somehow got out of the clutches of the appellant and ran away. On 4th September, 1987 Banwari Lal, husband of Santosh and the complainant had a hot talk with Kailash on this issue. In the intervening night of 4/5th September, 1987, Banwari Lal and his wife Santosh were sleeping on the terrace of the house, then at about 2 3/4 A.M. appellant and one other person came there and with the intention of killing, inflicted knife blows on the person of Banwari Lal. When Santosh tried to intervene she was also subjected to knife blows. On hearing the hue and cry, parents of the complainant and younger Bhabhi Hansa reached on the spot, whereupon Kailash ran down, entered into his room and bolted it from inside. Companion of Kailash jumped down from the terrace and fled away. Banwari lal and Santosh were brought down and taken to compounder Dhanpat of the village, wherefrom they were brought to Chomu hospital and later on, S.M.S Hospital, Jaipur. On receipt of this information, FIR No. 176/1987 was registered through formal FIR (Ex.P7). 3. During the investigation, statements of the witnesses were recorded. Injured were medically examined. Banwari lal was subjected to an operation. Appellant was arrested. On his information and at his instance, an axe was recovered. After investigation a charge sheet for offence under Sections 307 and 326 IPC was submitted before Munsif-cum- Judicial Magistrate, Chomu, wherefrom the case was committed to the District and Sessions Judge, Jaipur District, Jaipur. 4. Injured were medically examined. Banwari lal was subjected to an operation. Appellant was arrested. On his information and at his instance, an axe was recovered. After investigation a charge sheet for offence under Sections 307 and 326 IPC was submitted before Munsif-cum- Judicial Magistrate, Chomu, wherefrom the case was committed to the District and Sessions Judge, Jaipur District, Jaipur. 4. Learned trial court framed charges for offences punishable under Sections 307 and 326 IPC. Appellant denied the charges and claimed trial, Prosecution examined 14 persons as witnesses and exhibited 23 documents. Appellant was examined under Section 313 Cr.P.C. He stated that the evidence adduced by the prosecution is wrong and he has been falsely implicated in this case. No oral witness was examined in defence. Total six documents were exhibited in defence. Learned trial court after hearing arguments of both the parties, passed the impugned judgment dated 6th February, 1992 whereby convicted and sentenced the appellant, as stated hereinabove. 5. Learned counsel for appellant submits that Gajanand (P.W-6) has stated that when he went to police station Chomu, he found the appellant in lock-up of the police station. Nevertheless, prosecution has alleged that appellant was arrested on 6th September, 1987. From this fact, it is clear that the investigation is not fair. 6. Learned counsel further submits that independent and important witnesses Munir Khan, Omprakash Soni, Gappu Ram, Nathulal, Satyadan and Omprakash sharma have not been examined by the prosecution for the reasons best known to them. On the other hand, examined witnesses PW-2 Gopal Lal and PW-7 Ashok Kumar are not credible. Even then they have been relied upon by the trial court. Omprakash was a medical officer who examined the injured Banwari lal and Santosh at Chomu hospital immediately after the occurrence, but he has been held up by the prosecution. 7. Prosecution story is that one more person was assailant along with the appellant but prosecution has not explained who was that person and why he has been let off. 8. Learned counsel further submits that witnesses have stated in court that after occurrence, appellant was very much in the house. Within seven minutes of the occurrence, police reached at the spot and took away appellant with them. Nevertheless, police has shown his arrest on 6th September, 1987. No explanation is available in the prosecution story. 8. Learned counsel further submits that witnesses have stated in court that after occurrence, appellant was very much in the house. Within seven minutes of the occurrence, police reached at the spot and took away appellant with them. Nevertheless, police has shown his arrest on 6th September, 1987. No explanation is available in the prosecution story. Alleged recovery of the weapon of offence has thus rightly been disbelieved by learned trial court. 9. Learned counsel further submits that injured Banwari Lal (PW-9) and Santosh (PW-4) have made many improvements in the statements from their earlier statements recorded under Section 161 Cr.P.C. There are major contradictions in their statements. Prosecution story is that the injuries were inflicted by blow of knife whereas PW.9 Banwari lal deposed before the court that he was given blow of an axe. 10. Learned counsel further submits that as per PW.12 Dr.Vivekanand, on X-Ray, some part of occipital and parietal bones were found missing. Prosecution has not explained this situation. 11. Per contra, learned Public Prosecutor submitted that there are minor contradictions and some improvements in the statements of witnesses, which are so trivial in nature that they cannot be made base for discarding all evidence rendered by them. 12. She has further submitted that appellant may have been taken from the spot by police but only after being satisfied with regard to commission and nature of the offence, the appellant has been arrested. Time of arrest of the appellant has no bearance on the story of the prosecution. 13. Learned Public Prosecutor has further submitted that PW.13 Dr. Radheyshyam, in his statement before the Court, has amply clarified missing of some part of occipital and parietal bones of injured Banwari lal. 14. Learned Public Prosecutor further submits that both culprit and victim are close relatives and residing in the same house, nevertheless witnesses are deposing against the appellant. It indicates genuineness of the prosecution story. Learned trial court has rightly believed the eye-witnesses examined by the prosecution. Testimony whereof is further corroborated by medical evidence, duly proved by medical officers. 15. I have given thoughtful consideration to the rival submissions and gone through the material available on record. 16. It indicates genuineness of the prosecution story. Learned trial court has rightly believed the eye-witnesses examined by the prosecution. Testimony whereof is further corroborated by medical evidence, duly proved by medical officers. 15. I have given thoughtful consideration to the rival submissions and gone through the material available on record. 16. Banwari Lal Soni (PW-9) – the victim has stated that on 4.9.1987 when he along with his wife Santosh and daughter was sleeping on terrace and his brother Ashok along with his wife was sleeping on another terrace, at about 2.00 – 2.30 AM somebody inflicted two injuries on his face. When he tried to rise up, the accused Kailash gave a blow of an axe on his head and he became unconscious. He does not know after how many days he regained the conscious in SMS Hospital, Jaipur. He had identified very well that assailant was his uncle appellant Kailash. 17. Smt. Santosh (PW-4) – wife of Banwari Lal has stated that when she was sleeping along with her husband Banwari Lal on terrace, at about 2.00 – 2.30 -3.00 AM, her uncle-in-law Kailash Chand inflicted injuries with some object on her husband. She got awaken and tried to intervene, then Kailash Chand gave blows on her head and right shoulder by some object. On husband becoming unconscious, she made a cry, then people got awaken. Thereafter Kailash Chand fled away down the stair. Family members took her and Banwari Lal to the Hospital. First of all, taken them to Dhanpat Compounder of the village who gave First-Aid, then they were taken to Chomu Hospital and therefrom, to the Jaipur Hospital. They were admitted in SMS Hospital. Mattress on which they were sleeping got stained with blood. 18. Dhanpat Rai (PW-8) has stated that at about 3.00 in the night on 4.9.1987 Banwari Lal and his wife Santosh were brought to him in injured condition. The condition of Banwari Lal was serious. He was not in a position to speak. Both of them having injuries on head and face. He gave them First-Aid. Tied bandage on the injuries and asked them to take to Chomu or Jaipur. Dr. Vivekanand (PW-12) – Medical Jurist, SMS Hospital, Jaipur has stated that on 6.9.1987, he medically examined Santosh. He found three injuries on her body. He was not in a position to speak. Both of them having injuries on head and face. He gave them First-Aid. Tied bandage on the injuries and asked them to take to Chomu or Jaipur. Dr. Vivekanand (PW-12) – Medical Jurist, SMS Hospital, Jaipur has stated that on 6.9.1987, he medically examined Santosh. He found three injuries on her body. First injury was stitched wound - 10 cm long having 10 stitches on left side frontal parietal region and on left side forehead above middle of left eye brow with sign of inflammation and tenderness. Second injury was also a stitched wound having 6 stitches 5 cm long placed obliquely on posterior of right shoulder with clotted blood placed vertically. Third injury was linear incised wound 4 cm in length skin deep placed transversely above upper border of injury No.2 with clotted blood and soft brown scab around the wound. All the injuries were of 48 hours duration. He advised x-ray. Kind of weapon could not be opined as the wounds were stitched one. Her injury report is Ex.P-12. He has further stated that he also examined Banwari Lal. He found two injuries on his body. First injury - both eyes were swollen and both upper eyelids were contused dark blue in colour right eye was difficult to open. Second injury – face both sides of face and head was seen under pressure bandage. He advised for x-ray. First injury was simple and caused by blunt object. Kind of weapon could not be opined with regard to injury No.2, as wounds were under compression bandage. Duration of injury was 48 hours. Injury report of Banwari Lal is Ex.P-14. 19. Dr. Ram Chandra Yadav (PW-14) – a radiologist has stated that on 7.9.1987, he got x-ray conducted on injuries of Santosh and Banwari Lal. There was no fracture found in the injury of Santosh. X-ray report is Ex.P-13. On x-ray, some part of left parieto - occipital bone of Banwari Lal was missing. His report is Ex.P-15. Such missing of part of the bone is not possible when injury is inflicted by axe. Fracture is possible and during operation, such pieces can be taken out by surgeon at the time of operation. 20. Dr. Vivekanand (PW-12) has stated in his deposition before the court that his opinion on x-ray report (Ex.P-15) is “A to B” and “C to D”. Fracture is possible and during operation, such pieces can be taken out by surgeon at the time of operation. 20. Dr. Vivekanand (PW-12) has stated in his deposition before the court that his opinion on x-ray report (Ex.P-15) is “A to B” and “C to D”. Missing of some part of occipital bone may be due to the operation conducted. He has further stated that on the basis of operation notes (Ex.P-16), he has opined that injury No.2 of injury report (Ex.P-14) is fatal for life. 21. Dr. Radhey Shyam Mittal (PW-13) – Neurology surgeon has stated that on 7.9.1987, he conducted an operation of head of Banwari Lal. There was an injury on his head and parietal bone on left side was found fractured and membrane below it, was found torn. On operation of the head, he found that the broken bone was embedded in the brain. He took the pieces of broken bone out and dressed up the membrane. In his opinion, such an injury can cause death in normal course. Operation notes were prepared by his colleague resident Dr. B.D. Sharma who was accompanying him during operation. Operation notes are Ex.P-16. 22. From perusal of the statements of injured and medical officers along with the injuries reports, x-ray reports and operation notes, it is quite clear that Santosh and Banwari Lal got injured due to blow of some object used by the assailant. One of the injuries on the head of Banwari Lal was grievous one and sufficient to cause death in natural course. 23. It is undisputed that Dr. Om Prakash Sharma – Medical Officer, Hospital Chomu has not been examined by the prosecution. Prior to taking to the injured to SMS Hospital, Jaipur, they were taken to Dr. Om Prakash Sharma at Chomu Hospital. Despsite of his non-examination, I do not find any reason to disbelieve the evidence rendered by Santosh (PW-4), Banwari Lal Soni (PW-9), Dr. Vivekanand (PW-12), Dr. Radhey Shyam Mittal (PW-13) and Ram Chandra Yadav (PW-14). The submissions with regard to missing part of the parietal occipital bone of Banwari Lal has been dealt with by learned trial court also. I do not find any wrong in the finding of learned trial court that from the depositions made before the court by the doctors, the missing of a part of the bone has very well been explained. 24. I do not find any wrong in the finding of learned trial court that from the depositions made before the court by the doctors, the missing of a part of the bone has very well been explained. 24. So far as assailant is concerned, Gopal Lal (PW-2) who is father of the victim and brother of the appellant, Shanti Devi (PW-3) – mother of the victim and Bhabhi of the appellant, Ashok Kumar (PW-7) – brother of the victim have corroborated the prosecution story. Some discrepancies here & there found in the statements of these witnesses are not of substantial value. All of them have stated that the assailant was appellant Kailash. It has come in the evidence that one more person was accompanying appellant Kailash but no witness has said any overt-act by such other person. Witnesses have seen Kailash fleeing away down the stairs after the incident. Investigating Officer, Sohan Lal (PW-11) has stated in his cross examination that on his investigation, he did not find any other person involved in the offence. 25. As per charge-sheet, Munir Khan was an attesting witness of the site inspection and seizure memo of clothes. Om Prakash Soni is a person who took snaps of the spot. As per ordersheet of the trial court dated 18.11.1989, learned Public Prosecutor has left the witnesses Gappu Lal and Nathu Lal because they are father and real brother, respectively, of the accused. Satyadan is a person who was accompanying the injured when they were taken to the Hospital. Thus, the submissions made on behalf of the appellant that independent eye witnesses have been deliberately held up by the prosecution, is not found tenable. 26. The date of arrest of the accused is only relevant with regard to the recoveries made by police at the instance of the accused. In the instant matter, as per prosecution – an axe was recovered at the instance of the appellant but trial court has disbelieved such recovery. 27. Learned trial court has also noted certain discrepancies in the statements inter se made by the witnesses before the court and certain contradictions from their earlier statements recorded by police. I have gone through such contradictions and discrepancies. I concur with the findings of learned trial court that the discrepancies and contradictions are of very trivial natural and they cannot affect the veracity of story of the prosecution. I have gone through such contradictions and discrepancies. I concur with the findings of learned trial court that the discrepancies and contradictions are of very trivial natural and they cannot affect the veracity of story of the prosecution. All witnesses examined by the prosecution are attributing the injuries found on the body of Banwari Lal and Santosh to the accused Kailash only. I do not find any reason to differ from this finding of learned trial court. 28. Conclusion is that the prosecution has successfully proved all the charges levelled against the appellant. Trial court has rightly convicted and sentenced him. 29. Therefore, the appeal is disallowed. The judgment dated 6.2.1992 passed by learned trial court is affirmed. The appellant Kailash Chand is directed to surrender immediately to undergo the rest of the sentence.