JUDGMENT

AHMADI, J. - The appellant has been convicted under Section 302/34, IPC, for causing the murder of one Nagji, son of Parthesingh, of village Melakhedi. The prosecution case was that the family of the appellant and the family of the deceased were at loggerheads since quite some time and there was bad blood between them. In 1967, Bhowansingh, a member of the complainants family is stated to have been murdered by the appellants party. Thereupon, the deceased along with others is stated to have fatally assaulted Bhagwansingh and Bahadursingh and inflicted grievous injuries on Govardhansingh. These three are none other than the sons of the appellant. The deceased and his companions were, however, acquitted. It is said that the appellant, Daryao Singh was, therefore, keen to avenge the deaths of his sons. As a sequel to the earlier incident, it is said that the incident in question occurred on September 25, 1970 at about 4 p.m. The fact that the relations between the two families were strained is, therefore, not in dispute.

2. On September 25, 1970, the deceased, Nagji, was working in his field along with his son PW 4 - Bhanwar Singh. At that time the appellant went there in the company of Nagusingh, Govardhansingh and Bapusingh. Nagusingh was armed with a gun and a stick with dharia like blade, Govardhansingh was armed with a similar weapon, the appellant was armed with a sword and Bapusingh possessed a gun. They launched an attack on the deceased Nagji whereupon the latter raised an alarm which attracted the attention of PW 1 - Berusingh and PW 3 - Bhuwan Singh, who were working in the adjacent field. They reached the spot and witnessed the incident. On their raising a hue and cry, the appellant and his companions fled away. PW 4 had run away frightened when a shot was fired at him. The deceased, Nagji, sustained serious injuries on the head and his right leg was cut into two. PWs 1 and 3 went in search PW 4 but on the way met two police constables PW 8 - Chhotelal and PW 10 - Itratkhan. They narrated the incident and disclosed the names of the assailants to them. All the four returned to the place of occurrence, placed Nagji in a cart and proceeded towards the police station. But the injured passed away on the way. The dead body appears to have been taken to the hospital on the next day at about 5.20 p.m. PW 2 - Dr. Sharma, performed the post-mortem examination on September 27, 1970 at about 7 a.m. Except the appellant the rest of the assailants could not be put to trial as they were reportedly absconding.

3. The prosecution mainly relies on the evidence of PWs 1, 3 and 4. In addition, the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 to whom the names of the assailants were disclosed immediately after the incident. PW 8, however, turned hostile and was permitted to be cross-examined by the learned Public Prosecutor. This, in brief, is the prosecution evidence against the appellant.

4. The learned trial Judge on an appreciation of the prosecution evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 1, 3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence. Besides, according to the trial Judge, the evidence of DW 3 - Keshav Shankar Varang established that the appellant was a physically disabled person who could not have wielded the sword with such ferocity as to cut the right leg into two pieces. To disbelieve the prosecution case the learned trial Judge referred to the evidence of the hostile Constable, PW 8, but failed to take note of the evidence of PW 10. As the three eyewitnesses were closely related to the deceased, the learned trial Judge applied the rule of prudence and thought it wise not to base a conviction on their uncorroborated evidence. He, therefore, acquitted the appellant.

5. Feeling aggri