JUDGMENT : Goutam Bhaduri, J. Heard. 1. Instant appeal is against the judgment of conviction and order of sentence dated 19/12/2019 passed by the Sessions Judge, Raipur in Sessions Case No.34/2017 whereby the appellant has been convicted for life under Section 302/34 of IPC and fine of Rs.1000/- was imposed, in default of payment of fine amount, further RI for 3 months has been ordered. 2. The prosecution case, in brief, is that the complainant Jageshwar Chandrakar (PW-2) on 18/10/2016 was standing alongwith Chitresh Kekde near Kalyani Grocery Shop, Dhanlaxmi Nagar, Khamtarai, at about 9:30 pm Rajesh Das Manikpuri the present appellant alongwith his nephew Nagesh Das came on a motorcycle and over an old enmity which was existing, dispute started between them. At the same time, thereafter Rajesh Das Manikpur and Dhanesh Bande went back and came armed with a hammer and a knife and started assaulting on the head of deceased and Nagesh Das Manikpuri assaulted by knife whereby Chitresh Kekde fell down to the ground. He was initially taken to Ambedkar Hospital and thereafter was taken to Narayana Hospital, Raipur. Dehatai Nalashi (Ex.P-2) was registered and initially the offence under Section 307 IPC was registered. Subsequently, the injured succumbed to the injuries. In between the incident of assault and the death, the police started investigation and memorandum statement was recorded by Ex.P-14 and at the instance of Rajesh Das Manikpuri, hammer was recovered from a pond and the other articles i.e. motorcycle, the cloths were also recovered. The police after the death, seized bed head ticket from hospital of Chitresh Kekde by Ex.P-38 and the dead body was subjected to postmortem. The death was said to be caused due to cardio respiratory failure due to the head injury and was homicidal in nature. The police after investigation and after recording statement filed the charge sheet. 3. One of the other accused who was said to be involved in the crime absconded. During the trial, the appellant abjured his guilt and claimed to be tried. The prosecution had examined as many as 22 witnesses and in defence six witnesses were examined. Prosecution further exhibited 39 documents and eventually the learned Sessions Judge, convicted the accused. Hence, this appeal. 4. During the trial, the appellant abjured his guilt and claimed to be tried. The prosecution had examined as many as 22 witnesses and in defence six witnesses were examined. Prosecution further exhibited 39 documents and eventually the learned Sessions Judge, convicted the accused. Hence, this appeal. 4. Learned counsel for the appellant would submit that there is a major contradiction appears in the eye witness statement as presence of Saddam Hussain (PW-11) and Bharat Verma (PW-12) is eliminated by the injured witness Kailash Vishwakarma (PW-17). She would further submit that no MLC has been produced wherein the deceased was first taken into and the death was not immediate and it was after certain time. She would further submit that in the circumstances, it would lead to show that out of sudden scuffle and dispute, the incident occurred and there was no pre-meditated mind. Consequently, the conviction under Section 302 is liable to be set aside. 5. Per contra, learned Additional Advocate General would submit that the evidence of the eye witnesses Saddam Hussain (PW-11), Bharat Verma (PW-12) and Kailash Vishwakarma (PW-17) categorically establishes the fact how the incident happened and it lasted for quite a time which shows that initially the accused was not armed, subsequently with an intention to assault to cause murder, the hammer blow was made on the head and by knife over the vital part of the body on the face. He would submit that the nature of such injury which is affirmed by the postmortem report Ex.P-20 would show that death was due to head injury and the deceased succumbed to it. With respect to the omission, he would submit that minor omission has been made but this fact has not been eliminated that eye witnesses were present who has seen the incident, therefore the order is well merited, which do not call for any interference. 6. We have heard the learned counsel for the parties, perused the evidence. 7. According to the prosecution, the incident happened on 18/10/2016 at 9:30 pm. Over an old enmity, the deceased and the appellant alongwith his nephew entered into a dispute and assaulted. Initially Dehati Nalashi (Ex.P-2) which was made on 18/10/2016 itself at 22:10 i.e. 10:10 pm would show that within a span of 40 minutes, the report was made. 7. According to the prosecution, the incident happened on 18/10/2016 at 9:30 pm. Over an old enmity, the deceased and the appellant alongwith his nephew entered into a dispute and assaulted. Initially Dehati Nalashi (Ex.P-2) which was made on 18/10/2016 itself at 22:10 i.e. 10:10 pm would show that within a span of 40 minutes, the report was made. Jageshwar Chandrakar (PW-2) who made the report did not fully supported the case before the court, admitted his signature. Father of the deceased Bharat Lal (PW-3) states that on 18/10/2016 at 9-9:30 he received a phone call that near the Kalyani Shop some dispute has occurred. He went there and saw that his son was lying in a pool of blood, thereafter he took his son first to Mekahara and subsequently to Narayana Hospital. Narayana Hospital documents bed head ticket which is Ex.P-38 would show that the deceased was taken to the hospital with a history of hammer blow on his head and initial inspection shows that after that he was operated and was being treated. The police sought to record his statement by Ex.P-39 but it was not permitted by the doctor as the injured was not in a condition to depose. The doctor of the Narayana Hospital Dr. Rupesh Kumar Verma (PW-18) stated that on 18th October, 2016 at 11 pm, the deceased Chitresh was brought to the hospital, he was put to treatment and on the next day, he was operated and after the examination he found that the patient had a fracture on his head and face and inside the head the blood clots were found and eventually he died on 26th October, 2016 at 10:30. 8. This brings us to the fact that after the death his body was subjected to postmortem. Postmortem report is filed as Ex.P-20 proved by Dr. S.K. Bagh (PW-15). According to the doctor, the following injuries were found:- (i) A torn wound was present on the left side of forehead in which stitches were present, the length of which was 6 cm. (ii) A wound was also present on the left side of jaw side which was 4 cm long in which stitches were present. (iii) A stitched wound was also present in the left cheek, the length of which was 3 cm. (iv) Impacted abrasion was present in the left shoulder whose size was 3cm x 2 cm. (ii) A wound was also present on the left side of jaw side which was 4 cm long in which stitches were present. (iii) A stitched wound was also present in the left cheek, the length of which was 3 cm. (iv) Impacted abrasion was present in the left shoulder whose size was 3cm x 2 cm. (v) Contusion was present in the lower part of the right arm whose size was 4 cm x 2.5 cm. 9. As per the opinion of the doctor, the injuries which were found were sufficient to cause death in a normal course. Before this doctor, after the hammer was recovered at the instance of the accused, query report was also obtained and as per report Ex.P-21 the nature of injury could have been caused by such weapon i.e. hammer. 10. Perusal of the injury would show that multiple injuries were found on the head and the face, even the jaw had injury alongwith the left chin which was in a stitched condition. Consequently, the death was homicidal in nature that was proved by the prosecution and no doubt can be attached to it. 11. Now we revert back to the eye witnesses as three eye witnesses were examined by the prosecution who are Saddam Hussain (PW-11), Bharat Verma (PW-12) and Kailash Vishwakarma (PW-17). Saddam Hussain (PW-11) states that on the date on 9-9:30 when he went to a shop to charge his mobile phone, he saw congregation near Kalyani Kirana and heard the abuse and saw that the appellant and the other accused were abusing the deceased, thereafter both of them assaulted the deceased by hammer and knife and deceased started bleeding and fell down to ground. He specifically state that the hammer was held by Rajesh Das and knife was held by Nagesh Das who was absconding on the date of the trial. In the cross-examination of this witness, we do not find any material contradiction or omission except the minor. The fact that the assault was attributed to the accused/appellant is not been diluted. 12. He specifically state that the hammer was held by Rajesh Das and knife was held by Nagesh Das who was absconding on the date of the trial. In the cross-examination of this witness, we do not find any material contradiction or omission except the minor. The fact that the assault was attributed to the accused/appellant is not been diluted. 12. Likewise, in the statement of Bharat Verma (PW-12), he has given similar statement, that he himself has seen that at the initial stage both the accused were abusing and subsequently saw that Rajesh Das assaulted by way of hammer to deceased and Nagesh assaulted by way of knife and the people who were present were also threatened that if someone want to intervene, they would suffer the same consequence. Subsequent to that, both of them fled away. This witness was declared hostile but the fact that the assault was made by this present appellant is not been negated. Kailash Vishwakarma (PW-17) the other eye witness also sustained a injury. According to him, when he saw that dispute was going on in between them, he tried to control them but he was stopped. Thereafter, during such assault, in the process, he also sustained injury on his lips by hammer. Statement of this witness on the material part of the evidence corroborate with each other about the nature the assault was made. In the cross-examination of these eye witnesses, we do not find that any omission has come which eliminates the presence of each other or the fact that they have not seen the happening of the incident. 13. The very fact that immediately after the incident, this was reported and the deceased was taken to the Narayana Hospital on the same date and was admitted as was proved which relate back to the happening of the incident. Subsequently, after the operation, the doctor who provided the treatment of Narayana Hospital affirmed the fact that immediate disclosure while the deceased was admitted, the incident was disclosed that he was assaulted by hammer and knife and deceased was thereafter operated upon and succumbed to the injuries on 26/10/2016. One of the accused absconded and the trial was only against this accused. One of the accused absconded and the trial was only against this accused. The chain of evidence which was produced by the prosecution is corroborated by the other facts and the postmortem report and the very fact that the statement of Kailash Vishwakarma (PW-17) who tried to intervene to control the accused he did not hear the suggestion instead thereafter assaulted would show that the accused had a pre-meditated mind as after the assault also the conduct would show that they fled away form the scene. Consequently, we are of the view that prosecution was able to prove offence beyond reasonable doubt. 14. In a result, we are not inclined to interfere in the judgment of conviction and order of sentence. 15. Accordingly, the appeal is dismissed.