JUDGMENT :

A.Y. KOGJE, J.

1. When the Court has taken up the matter for hearing, the Court has taken into consideration the previous order as well as the fact that learned advocate Mr. M.J.Buddhbhatti has now expired and therefore, we allow his son Mr.J.M.Buddhbhatti, who seeks permission to appear in place of his father and represent the case of the respondents. It is also reported by him that respondent No.2 has now expired. Accordingly, present Appeal stands abated qua respondent No.2.

2. At the request of learned Advocate for both the sides, Criminal Appeal as well as Criminal Revision Application, both are taken up for joint hearing and disposal.

3. The Present Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 10.05.1995 passed in Sessions Case No.291 of 1993 by the Additional Sessions Judge, Kheda at Nadiad. By the aforesaid judgment and order, the respondents-accused have been acquitted for the offences under Section-302, 307 read with Section 34 and 279 of the Indian Penal Code.

4. The Sessions case arises out of an incident which took place on 13- 09-1993 for which F.I.R. came to be registered by one Prakashchandra Ravishankar vide Exh-18, wherein it is alleged that while the informant was riding scooter with Sursingh (deceased), at that time, accused persons riding a tractor collided with scooter causing the informant as well as the deceased to fall down and thereafter, the accused; Raisingbhai Chaganbhai Dabhi with Dhariya, accused; Karansingh Dolatsingh Dabhi with pick-axe assaulted Sursingh causing him grievous injuries resulting in his death.

5. The reason behind this assault according to the informant was long standing dispute and quarrel between the families with regard to the right of way and the construction made by illegal encroachment.

6. Learned Additional Public Prosecutor has submitted that an error is committed in acquitting the accused, though it is the case of eye- witness and the Sessions Court has disregarded version of eyewitness; Jashubhai Kalubhai Dabhi at Exh-23. Though he has clearly deposed about the assault and animosity. It is submitted that merely because this witness is nephew of the deceased, cannot be reason to completely discard his evidence.

7. It is submitted that the evidence of this witness is not a stand alone evidence, but is corroborated by the medical evidence i.e. deposition of Dr. Ashok Jain at Exh-30, who has narrated nature of serious injuries received and that such injuries could be caused by use of Dhariya. It is submitted that other corroboration is received from the discovery panchnama by which the weapon like Dhariya and pick-axe were discovered and the same were found with bloodstain matching the blood-group of the deceased.

8. It is submitted that though investigation had taken place properly, there is no lapse in the investigation. Still, as if the panch-witnesses are not to be believed, the trial Court has not taken into consideration panchnama of discovery as a corroborative piece of evidence.

9. As against this, learned Advocate for the respondents has submitted that the discovery panchnama cannot be believed, as the same is joint discovery attributed to all the accused. It is submitted that the informant, who even as per the case of the prosecution was accompanying the deceased at the time of incident, has turned hostile. Moreover, this witness does not mention to the presence of the eye-witness; Jashubhai Kalubhai Dabhi, but refers to the presence of two other persons; Bhurubhai and Bhavubhai, who had taken the injured witness and the deceased in their tractor for treatment. The prosecution has not examined this independent witnesses. It is submitted that for the aforesaid reason itself, witness; Jashubhai Kalubhai Dabhi appears to be got-up witness, though he is not witness at all to the incident.

10.Having head learned Advocates for the parties and having perused the