Prakash Tatia, J.—This Criminal Jail Appeal is against the judgment and order dt. 11.03.2003 passed by the learned Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No.141/2002, whereby the learned Sessions Judge convicted the appellants Naku S/o Punja, by-caste Bheel and Smt. Shyama W/o Naku under Secs. 302 and 302/34, I.P.C. respectively and sentenced both the accused for life imprisonment with fine of Rs.1000/- and in default thereof, to undergo one month’s rigorous imprisonment.

2. As per the prosecution, on 15.04.2002, at about 12.30 a.m., one Naniya S/o Onkar submitted an oral report which was recorded and produced in the Court as Ex.P.18 that at about 9.30 p.m. Kanji S/o Bijiya, Jeewana S/o Bijiya and Prabhu S/o Bariya came to his house and told him that Bhanaji S/o Vithhala has been killed by accused Naku and his wife Smt. Shyama. On this information, the complainant Naniya along with other villagers went to the house of Bhanaji where he found that Bhanaji is lying dead in the outer portion of his house. The complainant and other villagers found that Bhanaji had injuries in his chest which according to them was caused by sharp edged weapon and he was bleeding. There, Bhanaji’s wife Smt. Babli, brother Sukha told them that the accused Naku and his wife Shyama killed Bhanaji. They also told that Shyama caught hold of Bhanaji and Naku inflicted the injuries on the chest of the deceased. As per the report Ex.P.18, there was old enmity between Bhanaji and Naku and litigation was also going on between them. It is also stated in Ex.P.18 that the dispute was with respect to some hire charges of one machine. On this report, Case No.145/2002 under Secs. 302 and 302/34 was registered vide Ex.P.1 (F.I.R.). The site was inspected and site inspection report Ex.P.2 was prepared. The blood stained soil was also recovered and for that, report Ex.P.3 was drawn. The photographs of deceased (Ex.P.8 to Ex.P.12) were taken and negatives were also produced during trial by the prosecution. The post-mortem report is Ex.P.18. The accused persons were arrested and knife was recovered for which Ex.P.24 was prepared. Accused Naku’s clothes were also seized. The witness Shambhu was examined under Sec. 164, Cr.P.C. and the police received Ex.P.25 from the FSL. On the basis of above, challan under Sections 302 and 302/34, I.P.C. was submitted against both the accused.

3. The charge was framed which was denied by both the accused and both the accused sought trial.

4. The prosecution examined as many as 16 witnesses, namely, PW-1 Naniya, PW-2 Sukha, PW-3 Babli, PW-4 Smt.Bhula, PW-5 Shambhu, PW-6 Barji, PW-7 Naru, PW-8 Prabhu, PW-9 Lal Singh, PW-10 Vithhla, PW-11 Pratap Singh, PW-12 Dr. S.K. Bhatnagar, PW-13 Manohar Lal, PW-14 Rajendra Singh, PW-15 Pradeep Jain and PW-17 Bhagwat Singh. The statement of the accused were recorded under Sec. 313, Cr.P.C., however, they did not produce any witness in defence.

5. The learned Amicus Curiae vehemently submitted that it is clear from the prosecution evidence itself that the victim himself came in the house of the appellant-accused Naku and PW-3 Babli wife of deceased Bhanaji clearly stated that before this quarrel, relation between accused Naku and victim, her husband, were good. They used to eat together and used to go to their job together. Their houses are situated nearby. She also admitted that Naku was drinking liquor and deceased went in the house of Naku and started drinking liquor. She also stated that her husband deceased Bhanaji said that you keep quiet and we will talk in the morning, however, the fight started when the deceased and accused were talking and oral quarrel continued for half an hour. In view of the above, it is clear that on spur of moment, knife injuries might have been caused by the accused but it could not have been with intention to eliminate the victim. She specifically admitted that if her husband would not have gone inside the house of accused, even the quarrel would not

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