MOHINDER PAL, J.

1. This appeal under Section 378 of Criminal Procedure Code has been preferred against the order of acquittal passed by learned Sessions Judge, Bhavnagar in Sessions Case No.162 of 1996 dated 5.7.1997 under Section 302 read with Sections 34 and 323 of Indian Penal Code (IPC).

2. Police came into action after recording statement of Danabhai Meghabhai Ahir, who is resident of Zanzmer, Taluka: Umrala. Danabhai got recorded that he was running a shop of Pan-bidi at Dhola village. They were three brothers including the deceased engaged in the business of diamond polishing. On 17.09.1996 at about 8 O'clock in the morning, he went to the shop located at Dhola Junction. In the evening, at about 9.45 p.m., Ahir Vasirbhai Kalabhai of their village came to him on motorcycle and told that Ahir Bachubhai Valabhai and his son Bhupat Bachubhai assaulted Punjabhai with pipe and sticks. On hearing this news, Danabhai moved towards his village: Zanzmer. When he has reached near the outskirts of the village, he met his uncle Ramabhai Devabhai who was taking his brother Punjabhai to the Hospital on three wheeler tempo. Complainant saw that his brother, viz. Punjabhai sustained contusion injuries on head, and was bleeding from ear. His right hand was fractured and blows of pipe and sticks were visible on his entire body. He was unconscious. Ahir Karshanbhai Nanubhai, Dayabhai Rambhai and Jivabhai Bhimkhabhai etc. people of their village were sitting in the tempo and upon further inquiry, complainant came to know that at about 8.00 p.m., Ahir Bachubhai Valabhai and his son Bhupat Bachubhai caused injuries by assaulting with stick and pipe and Karshanbhai Nanubhai had witnessed the incident. As Punjabhai had sustained serious injuries, he was unconscious and they took him to the clinic of Dr.Goti at Dhola Village and the doctor told them to take the injured to Bhavnagar immediately, after administering the bottle of medicine. The complainant and other persons hired a matador of Firozbhai of Dhola village and brought Punjabhai to a private hospital of Dr.Rana at about 11 O'clock in the night. Punjabhai was admitted in the hospital for treatment. However, Punjabhai died at about 1.45 a.m. during intervening night of 17.09.1996 and/or 18.09.1996.

3. As per complainant, the reason for these injuries was that 2-3 years ago, his brother Punjabhai had thrown stone which injured Bacubhai Valabhai. A quarrel took place regarding this incident but complaint was not lodged. Keeping grudge for this incident, Bachubhai Valabhai caused injuries to the brother of the complainant which resulted into his death.

4. Postmortem of the dead body was conducted in the hospital. Thereafter, dead body was handed over to the family and was cremated. Police recorded statements of other witness including injured witness, Karshanbhai. Police also inspected the spots, prepared inquest report and completed formalities. The weapons of offence were recovered and sealed the cloth worn by the deceased were made into a parcel and sent for serological examination. Final challan was presented in the Court.

5. As the case under Section 302 IPC was made out against the accused, the case was committed to the Court of sessions. Charge was framed, accused did not plead guilt and claimed trial.

6. During trial, prosecution examined as many as 13 witnesses including the injured eye-witness, PW-4, Karshanbhai, whose evidence is available at Exh.24 and Doctors who have treated the injured as well as conducted postmortem examination.

7. Prosecution also examined the Investigating Officer and formal witnesses and tendered into evidence the Forensic Science Laboratory (FSL) report.

8. Trial Court recorded acquittal of the accused while discarding the evidence of injured eye-witness, Karshanbhai, on the ground that he was inimical towards the accused as having prior litigation with them. Learned Sessions Judge further disbelieved statement of Karshanbhai on the ground that he was