ORDER

The present appeal is filed under Section 374(2) of Cr.P.C. against the order of conviction and sentenced dated 16.12.1999 passed by First Additional Sessions Judge, Shajapur in Sessions Trial No.105/1999 whereby the appellant has been convicted under Section 307 of IPC and sentenced to RI for 10 years and fine amount of Rs.40,000/-; in default of payment of fine, additional RI for 2 years.

2. The prosecution case is that on 06.04.1999, when Daryao Bai and her son Radheshyam & Siddhanath were picking up Mahua, the accused persons came. It is alleged that one accused Devchand was armed with lathi and the present appellant Badri was armed with Farsi, they started abusing the complainant and the injured persons and asked that why they were picking up Mahua. On that Siddhanath uttered that this is his tree and he has got every right to pick up Mahua. It is alleged that both the accused persons said that they will finish them today. It is alleged that the accused Badri hit Siddhanath with the help of Farsha on middle of the head. He had given another Farsa blow which hit the backside of the head of Siddhanath. The injured fell down. To save him, Daryo Bai lying down over him and then Devchand hit her with lathi and she received injuries on the back. Her younger son also came in between who was also beaten with lathi by co-accused Devchand. After committing marpit, both the accused persons had run away from the spot. It is stated that the incident was witnessed by the wife of Prabhu Chamar and Kanhaiya Chamar. Siddhanath fell unconscious and thereafter the other relatives Rukmabai, Devilal and Laxmichand also came at the spot. The entire incident was narrated to them. Siddhanath was taken through tractor to Khujner. FIR was lodged and the offence under Section 307/34 of IPC was registered. The investigation was started. The injured Siddhanath, Daryao Bai and Radheshyam were sent for medical examination and for treatment they were sent to District Hospital, Rajgarh. After the investigation, charge-sheet was filed for commission of offences under Section 307 or alternatively 307/34 of IPC and Section 323 alternatively 323/34 of IPC. The trial Court after appreciating the evaluation of the facts and evidence acquitted co-accused Devchand from the charge under Section 307, 34 of IPC and also under Section 323/34 of IPC and alternatively 307 & 323 of IPC. however, the present appellant was convicted and sentenced as mentioned herein-above.

3. Learned counsel for the appellant argued that the prosecution case is based on the testimony of three eyewitnesses apart from injured PW-2 Siddhanath namely PW-1 Bhagwati, PW-3 Radheshyam, PW-9 Daryo Bai. All these three eyewitnesses are interested witnesses. The prosecution has not examined any independent witness though PW-1 Bhagwati Bai in her deposition stated that Inder Bai and Kanta Bai also came at the spot. It is further argued that injured witness PW-2 Siddhanath in para-27 stated that these three witnesses so called eyewitnesses were not present at the time of incident and, therefore, they were not eyewitnesses. It is further canvassed that there are contradictions in the statement of injured witness PW-2 Siddhanath and so- called eyewitnesses PW-1 Bhagwati, PW-3 Radheshyam, PW-9 Daryo Bai and, therefore, these witnesses were not trustworthy and the conviction could not have been based on these interested and related witness. PW-1 Bhagwati, PW-3 Radheshyam and PW-9 Daryo Bai are related to injured witness Siddhanath (PW-2). In absence of examination of any independent witness, the conviction is bad-in-law. He further argued that both the doctors PW-8 Dr. Surendra and PW-9 Dr. Ajay Pandey both have not stated in MLC that injury was grievous and dangerous to life. He further argued that as per para-7 of PW-2 Siddhanath and para-11 of PW-1 Bhagwati, there was a land dispute between the accused person and the complainant party and civil suit was pending and, therefore, the appellant