Important Point
Where none of the eyewitnesses said that accused had knife in his hand and he inflicted the knife blow on accused non they noticed any blood injury on the deceased merely on the basis of recovery of knife from accused and statement of the wife of deceased that deceased told her that accused inflicted knife blow on his stomach accused could not convicted.

Judgment

G.B. Pattanaik, J.-The appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 200/-, in default, to further undergo imprisonment for four months by the learned Additional Sessions Judge, Sirohi and the said conviction and sentence has been upheld by the Division Bench of Rajasthan High Court at Jodhpur in Criminal Appeal No. 141 of 1979. It was alleged by the prosecution that on 16.10.78 during the morning hours the cattle of the deceased entered into the field of the accused Deva and damaged the crop. Accused, therefore, put those cattle in the cattle pond. Deceased however agreed to give six Maund of maize as compensation, after which the cattle were released. The further case of prosecution is that Deva had gone out and on his return in the evening, there was some altercation between him and the deceased. P.W. 14 however inter­vened and got them separated. In the night, while accused was sitting at a hotel belonging to P.W. 7, the deceased came out of his house and seeing him coming out the accused left the hotel and inflicted in­juries upon him by a dagger (Chhuri) on the stomach of the deceased. The deceased then went to his house and informed his wife P.W. 6 that the accused has inflicted the injuries to him by means of a knife. On this score, there was an uproar in the village and several villagers went to the house of the deceased and found injured Samti. Natha P.W. 2, then went to the Police Station and lodged a report. On the basis of that report, Exhibit P3, which was treated as FIR, the Police started investigation and ultimately submitted the charge sheet. On being committed, the accused was tried by the learned Additional Sessions Judge.

2. The prosecution examined 14 witnesses, including the Doctor P.W. 1 who had conducted the autopsy over the dead body of the deceased and the three eye witnesses P.Ws. 4, 5 and 7. The doctor P.W. 1 found as many as seven incised wounds and the cause of the death according to him was shock due to the injuries, more particularly injury No. 2 which led to internal haemorrhage. On the basis of the medical evi­dence as well as the oral testimony of P.Ws. 2 to 7, the learned Additional Sessions Judge came to hold that the death of the deceased was homicidal in nature. The said conclusion was not assailed in appeal nor has been assailed before us. From the medical evidence it is established that the injuries of the deceased were caused by a sharp edged weapon. The three eye witnesses viz., P.Ws. 4, 5 and 7 though stated that there was a struggle between the accused and the deceased did not state that the accused had a knife with him with which he assaulted the deceased. The learned Additional Sessions Judge however came to the conclusion that as the occurrence took place at a place where there was not much of light and underneath a tree the eye witnesses might not have been able to see the knife which the accused was having. Relying upon the recovery of a knife at the instance of the accused, while in custody and the statement of P.W. 6, the wife of the deceased that deceased told her that Deva had inflicted the knife blow to him, the learned Additional Sessions Judge came to the conclu­sion that it is the accused who has inflicted the knife blow at the deceased. On the aforesaid finding the learned Additional Sessions Judge having convicted the appellant under Section 302, the appeal was carried to the High Court. The High Court confirmed the conviction and sentence passed by the learned Additional Sessions Judge relying upon the testimony of P.Ws. 4, 5 and 7 who were supposed to be the eye witnesses to the occurrence and the evidence of P.W. 6 who stated that her husband Samti told her that the accused Deva had inflicted knife blows on him. The conviction and sentence passed by the High Court against the appellant is being assailed in this appeal.

3. The learned counsel for the appellant contended before us that none of t