JUDGMENT : Biren Vaishnav, J. 1. This Criminal Appeal has been filed by the appellant challenging his conviction under section 302 read with section 452 of the Indian Penal Code by judgment and order dated 31.12.2010 passed by learned Additional Sessions Judge, Dahod, in Sessions Case No. 122/2009. 2. Charge was framed at exh.2 by the learned Additional Sessions Judge, Dahod. It was the case of the prosecution that on 1.8.2009, at 1:00 in the afternoon, the accused Masurbhai Pushiyabhai Machhar entered the house of the complainant, picked up an axe lying close-by and inflicted blows on the head of the complainant's father Havjibhai Vajabhai Pargi. As a result of this blow, Havjibhai, father of the complainant, succumbed to such injuries. Accordingly, the appellant accused was charged with offences punishable under section 302 read with section 452 of the IPC. 3. Dr. Rohitkumar Tersinhbhai Damor, Prosecution Witness No. 11, was examined at exh.27. He was the medical officer of the Community health centre at Fatehpur. On 2.8.2009, he received a police yadi for performing postmortem of the body of deceased Havjibhai. He carried out the postmortem. He had recorded the external injuries in column No. 17 of the postmortem report. According to this witness, the injuries which were anti-mortem, were in the nature of sharp cutting wound on left side of the ear and on the left side of temporal mandible bone and parietal bone. The deceased had further sustained sharp cutting wound on the back at parietal occipital region. The internal injuries were also stated in the report. According to the opinion of the doctor, cause of death was shock due to intra-cranial hemorrhage caused by injury to vital organ (brain). The postmortem report has been produced at exh.29. In the cross examination he stated that the injuries that the deceased sustained was possible as a result of being inflicted blows by an axe. 4. Nathubhai Havjibhai Pargi, son of the deceased, has been examined as Prosecution Witness No. 1 at exh.6. According to this witness, on 1.8.2009 at 1 O' clock in the afternoon, the incident occurred inside the house. He was at that time doing agricultural work in the field with his wife and his parents and children were inside the house. At around 12:30 when he heard the children shouting, he and his wife went to the house. According to this witness, on 1.8.2009 at 1 O' clock in the afternoon, the incident occurred inside the house. He was at that time doing agricultural work in the field with his wife and his parents and children were inside the house. At around 12:30 when he heard the children shouting, he and his wife went to the house. He saw his father lying on the ground having sustained injuries near the left ear and the neck. An ambulance was called for but as his father had succumbed to the injuries, he was not taken to the hospital. This witness further testifies that thereafter, a complaint was lodged which was produced at exh.7. He identified the accused who was present before the Court. According to this witness, there was no reason why the accused would have his father done to death. There was no motive or any past incident of quarrel. He further stated that he did not see the axe at the scene of offence. According to this witness, when he entered the house, he caught hold of the accused, however, the accused slipped from his grip and ran away. In his cross examination, he admitted that he ran towards his house on hearing the shouts of his children. When he entered the house, he saw his father lying injured and profusely bleeding. The suggestion that his father was not in a position to speak is denied. He further admits that when he entered the house, his father's condition was critical and that he could not coherently speak nor could he stand up. He further stated that the fact that the assailant was caught but he escaped was not recorded in the FIR. He further admits that the incident occurred in the spur of the moment. FIR lodged by the complainant produced at exh.7, as is evident, confirms to the testimony about the incident reproduced here-in-above. 5. Gangjibhai Devabhai Dindor, panch of inquest panchnama, has been examined as Prosecution Witness No. 2 at exh.8. According to the deposition of this panch witness, the deceased had sustained injuries near the head and near the ear. No other injuries were found on the body. Inquest panchnama has been produced at exh.9. 6. Laxmanbhai Rupabhhai Parghi, Prosecution Witness No. 3, who was the panch witness of the scene of the offence was examined at exh.10. According to the deposition of this panch witness, the deceased had sustained injuries near the head and near the ear. No other injuries were found on the body. Inquest panchnama has been produced at exh.9. 6. Laxmanbhai Rupabhhai Parghi, Prosecution Witness No. 3, who was the panch witness of the scene of the offence was examined at exh.10. Panchnama of the scene of offence was produced at exh.11. The panchnama of the scene of the offence reveals that spots of blood were found on the walls and on the floor of the scene of offence, a sample of which was collected. 7. Wife of deceased Havjibhai, Naniben Havjibhai Parghi, was examined as Prosecution Witness No. 4 at exh.14. In the deposition of this witness, it is revealed that when the incident occurred, she was in the house playing with her grandchildren. The incident occurred at 1 in the afternoon. Masurbhai, the accused, had come to their residence and attacked her husband twice with an axe. The deceased suffered injuries near the left ear and on the head. Her son and son's wife ran into the house on hearing the screams of their children. Masurbhai after attacking the deceased fled from the scene of offence. In the cross examination, she stated that she was in the room playing with her grandchildren whereas her husband deceased Havjibhai was outside. When she heard the shouts, she went out. She saw her husband lying in a pool of blood. She stated that her husband was sitting near the fire-place and she was sitting in the room. She admits that she has a weak eye-sight but she can see at a certain distance. Her grandchildren were playing in the room. Her husband was making a pipe and on hearing shouts when she came out she saw her husband lying with the injuries sustained. She denied having stated in the police statement that she saw Masurbhai leaving with the axe. 8. Shankarbhai Nathubhai Pargi aged 15 is the son of the complainant and grandson of deceased Havjibhai who has been examined as Prosecution Witness No. 5 at exh.15. After having questioned him and ascertained his ability to give the deposition, this witness in his examination stated that when the incident occurred he was studying in standard 7 and his school was in the morning. After having questioned him and ascertained his ability to give the deposition, this witness in his examination stated that when the incident occurred he was studying in standard 7 and his school was in the morning. He was doing his homework after returning from the school and having lunch. His grandmother and his brother were sitting on his side, so was his grandfather sitting with them. His grandfather was sitting near the fire-place and was smoking the pipe. He saw the accused Masurbhai with axe in his hand inflicting blows with axe on the head of his grandfather. His grandfather sustained injuries near the left ear and the head. Masurbhai soon left the scene. Thereafter, he called his parents i.e. his father and mother. When his father arrived, his grandfather had already died. In the cross examination, this witness denied the suggestion that he had not seen the incident in question and that he gave a false declaration. He denied the suggestion that he had not seen his grandfather being attacked by Masurbhai the accused. 9. Kanjibhai Somabhai Pargi, Prosecution Witness No. 6, exh.16, is the panch of the panchnama of the axe which was purportedly discovered at the instance of the accused. This panch witness also is a panch to the recovery of clothes of the accused. The discovery panchnama is at exh.17. The only material part of this discovery panchanama is that the axe which is the weapon used in the incident in question has been found with bloodstain. Akhmabhai Saburbhai, Prosecution Witness No. 7, exh.20, is the panch to the discovery of clothes of the deceased. Panchnama is produced at exh,21. 10. Rekhaben Nathubhai, Prosecution Witness No. 8, exh.22, is the granddaughter of the deceased Havjibhai. According to this witness, when the incident occurred at 1 in the afternoon, she was returning from her school. She was sitting with her grandmother, sister and brother. She saw Masurbhai approaching, picking up the axe lying near the door and attacking her grandfather. Her grandfather sustained injuries on the left ear and on the head. As a result of this injury, her grandfather died. Her parents were at that time in the field and approached the house on hearing the shouts. In the cross examination, this witness stated that she was inside the room doing her homework whereas her grandfather was outside. Her grandfather sustained injuries on the left ear and on the head. As a result of this injury, her grandfather died. Her parents were at that time in the field and approached the house on hearing the shouts. In the cross examination, this witness stated that she was inside the room doing her homework whereas her grandfather was outside. When she went out she saw her grandfather lying in a pool of blood. She had seen Masurbhai before the incident. She was inside the room with her grandmother, her brother and sister and was doing her homework whereas her grandfather was sitting outside. She could not see the fire-place where grandfather was sitting. 11. The wife of the complainant, Lalitaben Nathubhai Pargi, has been examined as Prosecution Witness No. 9 at exh.23. She has also in her deposition stated that on listening the shouts of her children, she ran towards the house with her husband and saw her father-in-law lying on the floor in a pool of blood. The father-in-law had sustained injuries on the head, as a result of axe blows. According to this witness, the children had narrated to her the fact that Masurbhai had inflicted the axe blows on the deceased. 12. Khatrabhai Vajabhai, uncle of the complainant and brother of the deceased, has been examined as Prosecution Witness No. 10 at exh.25. In his testimony, this witness stated that his house is situated next to that of the complainant and whatever is being spoken out there would be audible at his residence. He was at home when the incident occurred. On hearing the shouts of the children, he came out and saw Mansurbhai with the axe. He saw deceased Havjibhai lying down having sustained injuries on head. He further states that before the incident in question, he saw Masurbhai in the field. In the cross examination, this witness stated that when he went to the house of deceased Havjibhai on hearing the shouts, he saw the complainant standing by his father's side. He denies the suggestion that he did not see Mansurbhai with the bloodstained axe. 13. Kiransinh Ramsinh Ravat is the Investigating Officer who is examined as Prosecution Witness No. 12 at exh.30. In the examination-in-chief, he narrates the steps taken to carry out the investigation. He denies the suggestion that he did not see Mansurbhai with the bloodstained axe. 13. Kiransinh Ramsinh Ravat is the Investigating Officer who is examined as Prosecution Witness No. 12 at exh.30. In the examination-in-chief, he narrates the steps taken to carry out the investigation. In his cross examination, this witness states that on 2.8.2009, he had gone to the scene of the offence and on that day, he could not find the axe. The report of the Forensic Science Laboratory and the serological report have been produced at exh.33. On reading the report, it is found that blood-group 'O' that of the deceased is found on the trouser of the accused. However, the blood-group on the axe is stated to be 'indecisive'. 14. On the basis of this evidence on record, learned Sessions Judge has by his judgment convicted and sentenced the accused for offence punishable under sections 302 read with 452 of the IPC. 15. On independent appreciation of the evidence from the testimonies of witnesses, the following scenario emerges: 16. Prosecution Witness No. 1, the complainant though not an eyewitness to the scene of the incident, in his deposition, explained the sequence of events that preceded and succeeded the offence in question. According to this witness, while he was at his field, he heard the shouts of his children. On hearing the shouts, he went immediately to the house and found his father lying in a pool of blood having sustained injuries, which as narrated by the children, was as a result of axe blows inflicted by the accused. Before the ambulance could arrive, the father succumbed to such injuries. 17. On examination of medical evidence in the form of testimony of Dr. Rohitkumar Tersinhbhai Damor, Prosecution Witness No. 11, it emerges that the injuries sustained by the axe blows resulted in the death of the deceased. The cause of death was shock due to intra-cranial hemorrhage sustained by injury to vital organ i.e. the brain. In the opinion of this doctor, these injuries could have been caused by the axe. 18. Wife of deceased Havjibhai, Naniben Havjibhai Parghi, Prosecution Witness No. 4, was an eyewitness to the scene of the incident. It is apparent from her testimony that she had seen Masurbhai inflicting blows with axe on the deceased Havjibhai. She testifies that deceased had sustained injuries near the left ear and back of the head. 18. Wife of deceased Havjibhai, Naniben Havjibhai Parghi, Prosecution Witness No. 4, was an eyewitness to the scene of the incident. It is apparent from her testimony that she had seen Masurbhai inflicting blows with axe on the deceased Havjibhai. She testifies that deceased had sustained injuries near the left ear and back of the head. The incident occurred when she was in the room with her grandchildren. On seeing Masurbhai, her grandchildren started shouting, upon which, both the complainant and his wife ran into the house and found her husband lying in a pool of blood. 19. Learned advocate Ms. Sadhana Sagar for the appellant has tried to rely on the cross examination of this witness and stated that credibility of this witness is in doubt insofar as this witness in her cross examination has stated that her eye-sight was weak and she could not really see as to what would happen at a distance, that her husband was sitting outside while she was inside the room. Two child witnesses i.e. grandson of the deceased Shankarbhai Nathubhai Pargi Prosecution Witness No. 5 and granddaughter of the deceased Rekhaben Nathubhai, Prosecution Witness No. 8, have in their testimonies which are not at all at variance narrated the entire incident in question. According to their version, the accused Masurbhai had come with an axe, inflicted blows on the head of their grandfather near the left ear and back side of the head and then left the scene. Though in the cross examination, as argued by Ms. Sadhana Sagar, it has come out that they were not eyewitness to the scene of the incident, as they have stated in their cross examination that they had not seen the accused attack their grandfather, however, the contractions that are purported to have been pressed into service by the learned advocate cannot be stated to be major contradictions, which in any manner discount the credibility of these witnesses. 20. Even if the testimony of Khatrabhai Vajabhai, Prosecution Witness No. 10 is appreciated, it unequivocally comes out from his examination-in-chief that he had seen Masurbhai with an axe in his hand. Though he was not an eyewitness to the scene, he did see the appellant accused with an axe. Prior to the incident in question, he had also seen Masurbhai in the vicinity of the house near the field. 21. Though he was not an eyewitness to the scene, he did see the appellant accused with an axe. Prior to the incident in question, he had also seen Masurbhai in the vicinity of the house near the field. 21. Much emphasis has been laid on the testimony and cross examination of the Investigating Officer, Prosecution Witness No. 12, to discredit the entire version on the ground that the axe in question was never found from the scene of the offence and therefore, the testimonies of the so-called witnesses who are otherwise also not an eyewitness to the scene of the incident should not be believed. Even otherwise the discovery of axe is discounted for. The panchnama of the scene of offence when read with other piece of corroborative evidence i.e. report of the FSL though shows that blood-group of the axe was not decisively found to be that of the accused, however, the clothes of the accused had blood-group 'O' which was that of the deceased. 22. Ms. Sadhana Sagar, learned advocate for the appellant has relied on a decision in case of Buddhu Singh and others v. State of Bihar (Now Jharkhand) reported in (2011) 14 SCC 471 , to contend that once there was no intention of the accused to kill the deceased, the ingredients of section 302 were not attracted and therefore, the accused deserves to be discharged. If the decision relied upon by Ms. Sadhana Sagar is seen in facts of that case, it was the case of the defence that blow that was inflicted accidentally landed on the head of the deceased and therefore, plea of conversion from 302 to that of section 304 Part II of the IPC was accepted. However, in facts of the present case, judgement is not applicable. 23. Having seen the evidence on record, in totality of the facts, together with medical evidence, cause of death was directly attributable to the injuries sustained by the deceased i.e. by axe blow on the head of the deceased by the accused which was not an accidental act and therefore, the benefits prayed for by the learned advocate for the appellant need not be extended to the appellant herein. 24. 24. Having therefore, perused the evidence on record, the conviction handed out by the learned Sessions Judge to the accused for having committed offence punishable under section 302 read with section 452 of the IPC need not be interfered. 25. In the result, Criminal Appeal stands dismissed. R&P be transmitted back to the concerned trial Court.