“16. In view of the aforesaid evidence, it is submitted that during the free for all, it is possible that Mahesh Singh (acquitted) may have used the axe or the weapon in his hand. This contention may not appear to be acceptable in view of the ocular version of the eyewitnesses, but there is merit in the contention that was a free fight and jostling, which is apparent. Further, in view of the nature of injury there could be some debate or doubt on whether the injury in fact was caused by the sword or by the axe. Raj Kumar (PW1), Bal Kishan (PW2), Narender Kumar (PW3), Om Parkash (PW4), Rajesh Kumar (PW9) and Ajay Sharma (PW14) in their ocular testimonies have stated that the appellant - Veer Singh had used a sword. We do not doubt that the sword itself or something similar was used but none of the witnesses had deposed that the sword was used vertically to have caused the injury at the pinna and, thus, the deep vertical wound was caused. Normally, one would use the sword horizontally and cause a longer and not a deep vertical piercing wound. As per the death report of Praveen Kumar marked Ex.PW26/B, he was a tall man of about 5‟10 of height. It would be rather unusual for a person to use a sword vertically to cause the said injury on a tall person like deceased, though we notice that the appellant himself who was present in person in the court is equally tall.
