( 1 ) INSTANT one is a jail appeal arising out of a shocking incident, where poor person with aboriginal background has killed two of his kin under a superstitious belief that one among them was a witch causing all odds and ills for his family.

( 2 ) LEARNED trial Court by its judgment dated 22. 7. 2003 held the accused guilty for an offence punishable under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 1000. Further to undergo 6 months simple imprisonment in default of payment of fine.

( 3 ) AS per the prosecution on 31. 5. 2002 one Rajeng orally reported that he was living in joint family with his mother Lakhma and elder brother Shankar. At about 7 a. m. on 31. 5. 2002, he went to village Noliya and his elder brother shankar with his wife Leela were on tour to village Bargi from previous day to purchase clothes, leaving behind their mother and two children Ramji and mukesh. At about 9 a. m. when Rajeng returned to home his nephew Ramji came and While weeping stated that Baba Shankar S/o Raoji has killed lakhma and younger brother Mukesh with an axe and their bodies were lying down the mango tree. On reaching at the spot Rajeng found the bodies their and then Mana, Sohan and Lawa all sons of Raoji too reached at the spot. Sohan then proceeded to police station to call the police. As per Parcha Bayan kx. P/8 Lakhma was of 70 years and Shankar S/o Raoji was having a superstition that she was a witch causing death of his Ox a year back and also causing ailment in his family. Receiving this information a case was registered for offence under Section 302 IPC and after usual investigation the accused was charge-sheeted, committed to the Court of Sessions and was tried. He pleaded not guilty.

( 4 ) TO prove its case, the prosecution, in all, examined 18 witnesses of whom Ramji (PW-2), a boy of six years, is the only eye-witness. The other relevant witnesses PW-16 Sohan and PW-18 Mana are real brothers of accused Shankar. PW-5 Leela is mother of witness Ramji. PW-10 is informant rajeng @ Rajendra and PW-17 Shankar is father of PW-2 Ramji and elder (Para No.)16 brother of informant Rajeng (PW-10 ). AH the witnesses referred above corroborated the prosecution story. Dr. Mahendra Singh (PW-8) had done autopsy of the dead body of Lakhma and Mukesh on 31. 5. 2002 and proved his postmortem report, according to which following ante-mortem injuries were received by deceased Lakhma: 1. Incised wound 5x1x1 inch on right side of chest under collarbone. 2. Incised wound 4 x 1/2 x 1-1/2 inch on root of neck backside above collarbone.

( 5 ) ACCORDING to Dr. Mahendra Singh Jakhar (PW-8) the cause of death of lakhma was hemorrhage due to sharp cut of right sub-elavian artery.

( 6 ) THE body of deceased Mukesh was having following ante mortem injuries: 1. Incised wound 1 x. 5 x. 5 inch, in occipital region. 2. Incised would 5 x 2 x 1. 5 inch, on left side of back of neck.

( 7 ) THE cause of death given was shock due to fracture and dislocation of the vertebrae (C2 to C4) due to injury No. 1.

( 8 ) AN axe was also recovered on 1. 6. 2002 at the instance of accused and that was having blood stains. As per Forensic Science Laboratory Report blouse of the deceased Lakhma and the axe recovered were found to be stained with 'b' Group of blood. PW-9 Mohd Mustaffa, Sub Inspector was investigating officer and he deposed about various steps taken during the course of investigation.

( 9 ) THE accused denied his participation in the incident alleged but he did not adduce any evidence in defence. The learned trial judge believed the prosecution evidence, hence, convicted and sentenced the appellant.

( 10 ) IN appeal it has been argued by learned Amicus Curiae Sh. Shambhoo Singh that the conviction is based on the evidence of a child and that is not worthy credence. We have heard learned Amicus Curiae, Public prosecutor and also examined entire record minutely.

( 11 ) THE most important witness in the instant matter is PW-2 Ramj