GULAB C. GUPTA J. ( 1 ) THE appellant, who was put on trial along with his son Lingraj, for an offence under section 302/34, I. P. C, has been found guilty of offence punishable under section 304 (Part II), I. P. C and sentenced to five years R. I, by judgment dated 4-5-1982, passed by Shri M. M. Dubey, Sessions Judge, Raigarh, in Sessions Trial No. 66 of 1981. He feels aggrieved by his aforesaid conviction and sentence and has, therefore, preferred this appeal under section 374 (2), Cr. P. C. , challenging the legality and validity thereof. ( 2 ) THE appellant and his son were put on trial for having killed Ghasiram on 9. 7. 1980 at 800 a. m. in pursuance of their common intention by causing fatal injuries on him by an axe. The incident has admittedly occurred at an agricultural field known as Muhani Khet. It appears that Benudhar claimed possession of the said field and had employed the deceased Ghasiram and several other labourers to plough the said field. While these persons were carrying on their work, the accused persons asked them to stop plaguing Jogiram (P. W. 1) refused to oblige them by saying that he was employed by Benudhar (P W. 4) and would obey him only. On this, the accused Lingraj is said to have strangulated Jogiram and fell him on the ground. The deceased Ghasiram, father of Jogiram, who was also ploughing the field, came running on the spot to rescue his son Jogiram. Appellant Markande is alleged to have given Tangi blows to the deceased, causing him serious injuries. Dhaneshwar snatched the axe from appellant Markande while he was running away Jogiram (P. W. 1) lodged the F. I. R. at police station Lailunga on the same date at 2. 30 p. m. Ghasiram was sent for medical help and examination at Primary Health Centre, Lailunga, where he ultimately died on 25. 7. 1980 at 11-30 am in medical examination, the doctor found five injuries on the person of deceased consisting of one abrasion, one bruise, two incised wounds and fracture of 7th, 8th and 9th ribs After investigation, the appellant and his son Lingram were put on trial as aforesaid. ( 3 ) DURING the trial, the appellant denied having inflicted any injury on the deceased. ( 3 ) DURING the trial, the appellant denied having inflicted any injury on the deceased. Specific defence of appellant Markande was that he was the owner of the land in dispute and was in possession thereof. Benudhar and his labourers, according to him, obstructed his possession and assaulted him. The defence taken by accused Lingraj was that Benudhar's brother Dhaneshwar had attempted to inflict injuries on Markande by an axe, but, unfortunately, the axe hit the deceased Ghasiram who died. The learned Sessions Judge, relying on evidence of Jogiram (P W. 1), Dhaneshwar (P. W. 2) and Sadhuram (P. W. 3) held that the appellant Markande caused injuries on the deceased by an axe. Relying on evidence of Dr. Shamsuddoha (P. W. 6), the learned Judge held that Ghasiram died of injuries caused by appellant Markande. The learned Judge however, found no intention on the part of anyone to kill the deceased. He also found that the incident had happened on the spur of moment and without any premeditation. That is how the appellant has been convicted and sentenced. His son Lingraj has been acquitted. ( 4 ) SUBMISSION of the learned counsel for the appellant is that no independent witness has been examined to prove the incident. Evidence of P. Ws. 1, 2 and 3, viz. , Jogiram, Dhaneshwar and Sadhuram, on which reliance has been placed by the learned Judge is that of interested witnesses and could not be relied upon without independent corroboration. It is also submitted that though Ghasiram died after 15 days of the incident, and was in his senses during this period, his statement has not been recorded, indicating that his statement would have been in favour of the appellant. That is how the appellant claims his acquittal. In the alternative, it is submitted that the appellant is a poor, illiterate Adivasi and a first offender and, hence, deserves lenient sentence. Tile learned Government Advocate, however, defended the conviction and sentence by submitting that the incident has taken place on the land which was not in possession of the appellant-indicating that the act was intentional. As far as not recording the statement of Ghasiram is concerned, it is submitted that his condition was not as good as to justify recording of his statement. As far as not recording the statement of Ghasiram is concerned, it is submitted that his condition was not as good as to justify recording of his statement. ( 5 ) IN order to properly appreciate the contentions of the parties, it would be necessary to decide as to who was in possession of the land in question on the date of incident. There is, however, no dispute that the incident has taken place at Muhani Khet. A perusal of Exs. P-5, P-6 and P-7 as also Exs. D-1 and D-2 would indicate that there was dispute between the parties about the, sale of this land in favour of Benudhar (P. W. 4 ). Appellant Markande and his two brothers have filed a civil suit before the Civil Judge (Class 1), Raigarh, challenging the alleged sale of the said land and seeking a declaration of their right and title over the same. Benudhar applied for a temporary injunction against the appellant Markande and others to the effect that he was in possession of the land, which possession should be protected during the pendency of the suit. By an order dated 7-5- 1915 (Ex. P-5), the Civil Court granted an injunction against the appellant Markande and others to refrain from disturbing possession of Benudhar over the land either directly or through his servants, friends, relations etc. An appeal against the aforesaid injunction order was filed before the District Judge, Raigarh, but was, unfortunately, dismissed on 2-7-1976 vide Ex. P-6. It is admitted that the civil suit is still pending. Clearly, therefore, the injunction order granted by the Civil Court and confirmed by the District Judge, was operative on the date of the incident. These two orders would further indicate that appellant Markande was not in possession of the land. Inspite of it, it appears that a dispute about possession of the land had continued and proceedings under section 145, Cr. P. C. were started. It appears that Sub Divisional Magistrate, Gharghoda, passed an order against the appellant Markande and others on 2-8-1979. A revision against the said order was preferred which was dismissed on 10-6-1980 vide Ex. P-7 by recording a finding against the appellant that it was Benudhar who was in possession of the land in question. P. C. were started. It appears that Sub Divisional Magistrate, Gharghoda, passed an order against the appellant Markande and others on 2-8-1979. A revision against the said order was preferred which was dismissed on 10-6-1980 vide Ex. P-7 by recording a finding against the appellant that it was Benudhar who was in possession of the land in question. In the context of these earlier findings, particularly the finding recorded by the Civil Court, it was not open to the appellant Markande to claim possession of the land in question and interfere with Benudhar's possession thereof. His remedy against the injunction order, if any, was to approach the higher Courts. The action of the appellant Markande and his son in entering into the land, amounts to criminal trespass and makes them aggressors in relation to the incident in question. ( 6 ) JOGIRAM (P. W. 1) had lodged the F. I. R. without delay. According to him, while he, his father and others were ploughing the field, appellant Markande came into the field armed with an axe and asked them not to plough the field. On this, some of the labourers stopped ploughing while he refused to do so. On this, Lingraj started fighting with him. The deceased Ghasiram rushed to the spot to separate the two and at that point of time, want hit by the appellant Markande with an axe, He also stated that the appellant Markande inflicted two or three injuries on the deceased, as a result of which he fell down and died after 10-15 days. He also stated that Dhaneshwar (P. W. 2) snatched the axe from Margande, which was ultimate deposited with the police. There is nothing in the cross-examination of this witnesses to doubt the correctness of his statement. His Court version is fully corroborated by F. I. R. which has been lodged without any delay. Dhanshwar (P. W. 2), who was also employed as a labourer, bad fully supposed the evidence of Jogiram (P. W. 1) by stating that it was the appellant who gave axe blow on chest, neck and nose of the deceased Ghasiram. His cross-examination was apparently intended to support the defence case that it was Ghasiram who was armed with the axe in question and that he was giving false evidence. There is nothing in his cross-examination to doubt his version. His cross-examination was apparently intended to support the defence case that it was Ghasiram who was armed with the axe in question and that he was giving false evidence. There is nothing in his cross-examination to doubt his version. P. W. 3 Sadhuram is yet another labourer working at the relevant time and fully supports the version. It is true that Jogiram and Sadhuram are brothers and two sons of the deceased Ghasiram. They may, therefore, be related and interested witnesses, but evidence of related or interested witnesses is not by itself unreliable. Indeed, their relationship would ensure their personal presence on the spot, and the fact that they were employed as agricultural labourers, would indicate that they had no ill will against any one. Since their evidence is fully supported by F. I. R. and medical evidence, it is clear, specific and unimpeachable. Such evidence, inspite of their being related to the deceased, will, by itself, be sufficient to justify appellants conviction. ( 7 ) IT is true that Dr. Shamsuddoha (P. W. 6) has found injuries on the person of appellant Markande and also on his son Lingraj. According to the learned counsel for the appellant, these injuries remained unexplained by the prosecution and would, therefore, introduce an infirmity in the prosecution case. It is, however, not possible to agree. A perusal of statement of Dr. Shamsuddoha (P. W. 6) would indicate that he found a bruise on the person of Lingraj (para 16) and a bruise and two abrasions on the person of Markande. These injuries are said to have been caused by hard and blunt object. Jogiram (P. W. 1) in his statement, has deposed that Sadhuram had tried to snatch away the Lathi held by Lingraj and in the scuffle, had suffered the injuries (para 7 ). There is no cross-examination of this witness on this point. Submission that Lingraj was bit by any one was died by the witness. This statement is otherwise natural when considered in the context of injuries. Clearly, therefore, the injury on the person of Lingraj has been explained. As far as injury on appellant Markande is concerned, Jogiram (P. W. 1) has stated that Dhaneshwar had tried to snatch the axe held by him and in that process, appellant Markande and suffered injury on his hand. Clearly, therefore, the injury on the person of Lingraj has been explained. As far as injury on appellant Markande is concerned, Jogiram (P. W. 1) has stated that Dhaneshwar had tried to snatch the axe held by him and in that process, appellant Markande and suffered injury on his hand. The fact that the injury is caused on the hand of Markande, is clear from the medical evidence. The fact that Dhaneshwar had snatched the axe from appellant Markande has also been stated by him in his statement. Dhaneshwar has not been cross examined on this point. Clearly, therefore, the prosecution has explained injuries on both these persons. Even otherwise, this injuries on their person are simple in nature and could have been otherwise caused in struggle etc. A simple injury of the type would not justify disbelieving evidence of eye- witnesses that it was the appellant who had caused injuries on the deceased by an axe. Since the medical evidence, which remains unchallenged and unimpeached, is that the deceased died of the aforesaid injuries, the inevitable conclusion is that it was the action of the appellant which resulted in death of the deceased Ghasiram. ( 8 ) GHASIRAM was injured on 9. 7. 1980 and died on 25. 7. 1980. During this period, he was under medical treatment. Dr. Shamsuddoba (P. W. 6) has admitted that the patient was responding to his questions till 24. 7. 1980 (para 19), indicating that the police official could have taken his statement. The doctor further says that no police official came to him for getting the statement recorded. Chanduram (P. W. 11) was the Investigating Officer, but was not asked any question as to why the statement of deceased was not recorded. This witness had, however been transferred on 19 7. 1981 and was in-charge of the case only for nine days. A perusal of Ex. P. 12, which is the hospital record regarding Ghasiram indicates that his general condition was poor on 10. 7. 1980 and 11. 7. 1980. It is recorded as good on 12. 7. 1980, indicating that the patient was responding to the treatment. Thereafter, his condition was recorded as normal instead of good, but again deteriorated on 24. 7. 1980. This record indicates that on 12. 7. 1980, his statement could have been recorded. Inspite of it, it is clear that his statement had not been recorded. 7. 1980, indicating that the patient was responding to the treatment. Thereafter, his condition was recorded as normal instead of good, but again deteriorated on 24. 7. 1980. This record indicates that on 12. 7. 1980, his statement could have been recorded. Inspite of it, it is clear that his statement had not been recorded. Chanduram has however stated that his police station was being inspected by senior officers and he was busy in the said inspection. Therefore, he could not go to the hospital to ascertain the condition of the deceased. This apparently is the reason why the statement has not been recorded. The question is whether any adverse inference can be drawn against the prosecution. In some cases where the evidence is not clear and cogent, absence of statement of the victim might justify discarding of evidence of other witnesses. In the instant case, all facts point to the criminality of the appellant and, hence, absence of statement of the deceased, by itself, would not be sufficient to disbelieve others. Under the circumstances, no benefit can be given to the appellant on this account. ( 9 ) AS a result of discussion aforesaid, the conviction of the appellant for offence under section 304 (Part II), I. P. C. is affirmed. As far as sentence is concerned, a sentence of five years R. I. cannot be said to be severe or undeserved in the context of facts and circumstances of the case. The appellants insistence on regaining possession of the land inspite of Court's injunction, is indicative of his hard headedness. The sentence, under the circumstances, calls for no interference. Appeal fails and is dismissed. Since the appellant is on bail, be is directed to appear before the Chief Judicial Magistrate, Raigarh, on 21. 4. 1986 to receive this judgment and undergo the sentence. .