Whether the accused No. 2 can be held guilty on the sole evidence of P.W. 2 Taraben?

C.K. Buch, J.—The present appeal is preferred by the appellants-orig. convicts under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, challenging the legality and sustainability of the judgment and order of conviction and sentence dated 05.06.1999 passed by the learned Additional Sessions Judge, Surat camp at Vyara, in Sessions Case No. 109 of 1996, whereby the learned trial Judge has held Appellant No. 1-Chimanbhai Chhagabhai Gamit guilty for the offence punishable under Sections 323 and 504 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- on each count; in default of payment of fine, to undergo rigorous imprisonment for two months and three months respectively for both the offences. The learned trial Judge has further held Appellant Nos. 2 and 3-orig. accused Nos. 2 and 3 guilty for the charge of offence punishable under Section 302 read with Section 114 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 800/- each and in default of payment of fine, to undergo simple imprisonment for 4 months by each of them.

2. Appellant No. 1 is the father of Appellant Nos. 2 and 3 and obviously, Appellant Nos. 2 and 3 are the real brothers. The judgment and order of conviction and sentence is challenged on various grounds mentioned in paragraph No. 2 of the memo of the appeal. At present Appellant No. 1-orig. accused No. 1 is enjoying bail.

3. Heard Shri M.J. Budhbhatti, learned Counsel appearing for the appellants and Ms. D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, at length. Firstly, it would be appropriate to state the facts of the case placed by the prosecution in brief so as to appreciate the evidence led by the prosecution and the arguments advanced. According to the prosecution, P.W. 2-complainant-Taraben widow of Nanubhai Chhagabhai along with her husband Nanubhai Chhagabhai(deceased) was at her residential premises situated in Pradhanwadi Faliya of village Bedchit, Tal. Vyara. That 10 days prior to 01.09.1995, which is the date of incident in question, there was some hot exchange of words and the said Nanubhai Chhagabhai-husband of complainant had snubbed Appellant No. 1 for getting his bullocks grazed the rice crop from the field of Nanubhai Chhagabhai. Since then, the ill-feeling was there between the said two families. Appellant No. 1 is the real brother of deceased Nanubhai Chhagabhai. On 01.09.1995 at about 07-30 p.m., the said Nanubhai Chhagabhai along with his family was in his house. At that time, Appellant No. 1 had gone there and started abusing Nanubhai and attempted to give stick blow. At that time, Nanubhai tried to escape but he was caught hold off by Appellant Nos. 2 and 3. Appellant Nos. 2 and 3 had brought axes with them from their house. Appellant No. 2 inflicted 2 to 3 blows of axe on the head of Nanubhai. In the same way, Appellant No. 3 also gave two blows with the axe on the head of Nanubhai. According to prosecution, the complainant intervened in the quarrel; that too during the act of assault and at that time, Appellant No. 2 gave blow by reverse side of the axe to the complainant. The basic case of the prosecution is that actually there were 4 accused persons. Dinuben-wife of Appellant No. 1, who was orig. accused No. 4, was also there. She was also abusing Nanubhai as well as complainant; and she had also given kick and fist blows to Nanubhai as well as complainant. The injured Nanubhai was thereafter taken to hospital, where he succumbed to the injuries inflicted on his head.

4. It is alleged that Soma Chhagabhai, Chiman Chhagabhai(Appellant No. 1) and Gamanbhai Chhagabhai are three real brothers of Nanubhai Chhagabhai(deceased). Nanubhai was the youngest. All the four brothers were given agricultural lands by their father dividing the land owned and held by their father equally. Nanubhai ha