JUDGMENT 1. - Substantive sentences were ordered to run consequently. 2. A written report duly thumb impressed by Dhanna S/o Mangilal of village Amli, and addressed to Police Station Savar (Ex. P.13) was presented there, on 18.12.1989 at 3. p.m. It had been stated therein that he (Dhanna) and his brother, Banna, both were irrigating their crop of mustard standing in their agricultural field by drawing out water from their own well and their wives were also working in their field, but at about 11 or 12 O'clock in the noon, Ram lal & Magna both duly armed with lathies came to them and started closing water channel so as to abstain flowing of water to his field and to this act of them when objected and protested by both of the brothers, then Ramlal landed three lathi blows on his head (Dhanna's) and besides that, one blow on his right ear and another one blow on his right hand whereas his brother was beaten by Magna with infliction of lathi blows thereby Magna caused injuries on the chest of his brother Banna. According to the report, during the course of maar-peel, wives of Dhanna & Banna, in addition to Chhitar & Kana also reached there so as to rescue them; and the incident took place in their own field. 3. Upon the aforesaid report, F.I.R. No. 65/89 was chalked out. The investigation commenced. Dhanna & Banna were medically examined. Dhanna died on 20.12.85 at about 10.45 a.m. After usual investigation, the challan was presented and after committal proceedings the case was committed to the Court of Sessions at Beawar. Ramlal & Magna both the appellants were charged for offences punishable under Sections 302 or 302/34, 323/34, & 447, IPC. They denied to the charges and claimed trial. The prosecution examined 16 witnesses. The appellants were examined under Section 313, Cr.P.C. They did not adduce any defence evidence. 4. After hearing the parties, the learned Trial Court found the appellants guilty and, therefore, it convicted & sentenced them as stated above. Hence this appeal. 5. At the very out-set, learned Counsel for the appellants contended that there is no evidence that the deceased had lodged the report (Ex. P.13) because, as per statement of his brother (P.W. 2), Dhanna after sustaining injuries, did not at all gain consciousness till his death. Hence this appeal. 5. At the very out-set, learned Counsel for the appellants contended that there is no evidence that the deceased had lodged the report (Ex. P.13) because, as per statement of his brother (P.W. 2), Dhanna after sustaining injuries, did not at all gain consciousness till his death. Highlighting these facts, learned Counsel stressed, it was not possible for the deceased to have dictated the report and then to have submitted it at the police station. This contention has got no force in view of the telling circumstances brought on record by other witnesses. In fact, in cross-examination, Banna (P.W. 2) deposed that Dhanna did not gain consciousness. Banda admitted that he regained consciousness third day of the incident. So, when Banna, himself was unconscious after sustaining injuries, how could he know the health state of his brother Dhanna, and in these circumstances, this part of his testimony as to the consciousness of Dhanna cannot be accepted. Merely because Bannalal stated that Dhanna did not regain consciousness, it cannot be said that Dhanna had not lodged the report. Vishnudutt (P.W. 12) who was the scribe of report (Ex. P.13) appeared in the witness box and stated in his examination-in-chief that the report (Ex. P.13) was written by him in his own handwriting as per dictation given by Dhanna. The report was presented before the S.H.O. P.S. Savar who at the relevant tine was Naresh Babu (P.W. 15). Naresh Babu (P.W. 15) deposed that a written report (Ex. P.13) was presented before him by Dhanna at the police station and it bears his signatures besides thumb impression of Dhanna, and after receipt of the said written report of Dhanna, he made endorsement thereupon at the reverse by writing police proceedings. and during the course of police proceedings, the report of Dhanna was read over to him then Dhanna admitted before him the same as correct. Naresh Babu (P.W. 15) is independent witness and as per his statement, when the contents of the report (Ex. P.13) were read over to Dhanna, it was admitted to be correct. This shows that Vishnu Dutt (Scribe) (P.W. 12) and Naresh Babu (P.W. 15) gave out consistent fact that at the time when the report was dictated and submitted to the police, Dhanna was not unconscious. P.13) were read over to Dhanna, it was admitted to be correct. This shows that Vishnu Dutt (Scribe) (P.W. 12) and Naresh Babu (P.W. 15) gave out consistent fact that at the time when the report was dictated and submitted to the police, Dhanna was not unconscious. In this view of the testimony of independent witnesses, we are unable to accept the contention of the learned Counsel for the appellant that this is a case where making of the First Information Report is doubtful. Learned Counsel for the appellant in support of his contention referred to the decision of this Court in 1985 RLR p.65. Having regard to the facts of the case, ibid, we find that therein, the prosecution failed to prove as to who had lodged the First Information Report and who was its scribe and, therefore, in these circumstances, this Court held that no reliance could be placed on a document - scribe and author of which was not made known to the Court. But, in the case at hand, as stated earlier, scribe of the report (Ex. P.13) was Vishnu Dutt who has been produced and who has proved that the report (Ex. P.13) was written by him as per the dictation by Dhanna, and similarly, the Investigating Officer before whom report (Ex. P.13) was presented, proved the fact that the same was presented by Dhanna before him at the police station and the contents of it was read over to Dhanna who admitted it to be correct as was presented before him, as has been endorsed at the reverse of the report under the police proceeding (Ex. P.13). Thus, the decision cited by the learned Counsel for the appellant does in no manner help the accused-appellant so as to observe that no reliance, as argued by him, can be placed on the F.I.R. (Ex. P.13). 6. Dr. Sohanlal (P.W.11) had medically examined Dhanna & Banna after their admission in the hospital, and he gave his reports vide Ex. P.12 & P.11 respectively of Dhanna & Banna. At that time, he found following injuries on the person of Dhanna: 1. Lacerated wound 7.2 cm X 0.8 cm X bone deep irregular margins on anterior part of left parietal region of scalp. No infection bleeding present. 2. Lacerated wound 2.6 cm X 0.3 cm X 0.2 cm on posterior and part of left parietal region of scalp. At that time, he found following injuries on the person of Dhanna: 1. Lacerated wound 7.2 cm X 0.8 cm X bone deep irregular margins on anterior part of left parietal region of scalp. No infection bleeding present. 2. Lacerated wound 2.6 cm X 0.3 cm X 0.2 cm on posterior and part of left parietal region of scalp. 3. Lacerated wound 2.2 cm X 0.2 cm X 0.2 cm on posterior and lateral part of right parietal region of scalp. 4. 2 abrasions reddish brown soft scab present with swelling. Abrasions are 0.9 cm X 0.6 cm and 0.8 cm X 0.7 cm irregular swelling. 3.9 cm X 2.6 cm on back of right ear at its root. 5. A bruise reddish with swelling. Bruise 1.4 cm X 1.2 cm and swelling 2.4 cm X 2 cm on interior part of right parietal region of scalp. 6. A bruise reddish with swelling 3.2 cm X 2.4 cm oblique on outer side of right shoulder on its tip. 7. Abrasion reddish 2.9 cm X 1.2 cm irregular on lateral side of lower part of left forearm near wrist. 8. Complains of pain on front of upper part of right side of chest wall - injury not visible. 9. Abrasion reddish brown with soft scab 0.5 cm X 0.4 cm irregular on back of left index finger. 10. Complain of pain on left side of face-injury not visible. 11. Bruise reddish 7.3 cm X 2.5 cm on lateral side of left thigh on its upper part. 7. The doctor had examined Dhanna medically at4.25 p.m. and the duration of his injuries was stated to be within six hours. According to him, all injuries except Nos. 8 & 10 were caused by blunt object, and injury Nos. 7, 9 & 11 were simple in nature but as regards other injuries, Nos. 1 to 6, he advised X-ray, so as to know its nature. The Doctor then stated that during medical examination, Dhanna complained of splitting pain, vomiting and bleeding while being he doctor proved that Dhanna put his thumb impression at point' X' on injury report (Ex. P.12). In view of the testimony, ibid, of Dr. Sohanlal (P.W.1 1) that Dhanna complained of splitting pain, vomiting, and bleeding being ejected while spitting, it can safely be held that Dhanna was conscious even when he was being medically examined. P.12). In view of the testimony, ibid, of Dr. Sohanlal (P.W.1 1) that Dhanna complained of splitting pain, vomiting, and bleeding being ejected while spitting, it can safely be held that Dhanna was conscious even when he was being medically examined. Thus, the theory of unconsciousness of Dhanna, propounded by the learned Counsel for the accused-appellants, and highlighting it so as to assert of that the F.I.R. was not lodged by Dhanna on account of his being unconsciousness, is per se preposterous and does not appear to be correct in view of the consistent evidence of the doctor, Investigating Officer and scribe of the report (Ex. P.13), as detailed out above, which has not at all been demolished during cross-examination as nothing significant has been elicited in their cross-examination. Dr. Sohanlal (P.W. 11) has proved condition of Dhanna before his death. Dr. Sohanlal stated during cross-examination when put to suggestion that next day, Dhanna and Banna were sent to J.L.N. Hospital, Ajmer. Dhanna died on 20.12.89 while he was in J.L.N. Hospital, Ajmer. His autopsy was conducted by Dr. Jitendra Choudhary (P.W.16) vide his report (Ex. P.21). Dr. Jitendra Choudhary (P.W. 16) found following anti-mortem injuries on the person of Dhanna: 1. Lacerated wound 4 X'/, cm X muscle deep on parietal region. 2. Incised wound 4 X l' cm X bone deep on left parietal region vertically placed. 3. Stitched wound 5 ems behind injury No. 2. 4. Diffuse swelling on left wrist with and on dissection with fracture of 4th and 5th meta carpol bones. 5. Diffuse swelling on rt. hand with wrist on exploration fracture of 5th meta carpol bone at middle. Explanation of injuries Nos. 2 & 3. On removing of scalp a large haematoma with clotted blood was there, after clean that blood, there is linear fracture of left parietal bone. On removing of vault of skull. There were congestions of brain membranes and sub-durations hemorrhage was there. 8. According to Dr. Jitendra (P.W.16), the cause of death of Dhanna was due to shock as a result of anti-mortem head injury. Dr. Jitendra (P.W.16) also deposed that the injuries on the persons of the deceased were sufficient in the ordinary course of nature to cause his death. In the light of the medical evidence, stated above, Dhanna died due to the injuries sustained on his person and it is a case of homicidal death. 9. Dr. Jitendra (P.W.16) also deposed that the injuries on the persons of the deceased were sufficient in the ordinary course of nature to cause his death. In the light of the medical evidence, stated above, Dhanna died due to the injuries sustained on his person and it is a case of homicidal death. 9. Now the question arises as to whether the Trial Court was justified in holding the appellants guilty for the commission of the offences for which they have been convicted and sentenced? We shall now scrutinise the evidence in the light of the contentions of the learned Counsel for the accused-appellants. 10. As per the first version given out in the report (Ex. P.13) appellant-Ramlal inflicted repeated blows on the head of the deceased. Similar is the version of Banna (P.W. 2) who was also injured in the impugned incident. Lada, Chants, Gopal, Chhitar, Kana, Gangaram, Ramlal, & Mangilal (P.Ws. 3 to 10) have been produced by the prosecution as ocular witnesses of the occurrence. Banna (P.W. 2) - brother of the deceased - deposed that he along with his brother was irrigating their crop in the agricultural field by drawing water out of their well and at that time, accused-appellants came there at the scene of occurrence duly armed with lathies and started closing water channel by saying that they would irrigate their field - upon this, the deceased had made protest and told them that a few portions of their field had remained un-irrigated so they would wait for some time. Banna deposed that suggestion of his brother was not accepted by the accused rather the accused having been furious opened attack by their lathies upon them, and that, Ramlal landed lathi blows on the person of Dhanna on his head, shoulder and thigh, and that apart, he was also beaten by Magna by causing injuries on his person with lathi. Other witnesses who have supported the prosecution version as to the participation in inflicting lathi blows by the accused - appellants on the persons of the deceased and injured, are Lada (P.W. 3) and Chanta (P.W. 4), wife of Dhanna & Banna respectively. 11. It has been contended by the learned Counsel for the accused-appellants that Gopal, Chhitar, Kana Gangaram & Ramlal (P.Ws. 11. It has been contended by the learned Counsel for the accused-appellants that Gopal, Chhitar, Kana Gangaram & Ramlal (P.Ws. 5 to 9) were the only independent witnesses but they did not support the prosecution at the very outset and that being so, they were declared hostile. It is argued that in view of the above state of affairs, whole case against the appellants rests solely on the testimony of Dhanna, his wife-Chants and wife of his brother (deceased) - Lada, in addition to his father Mangilal (P.W. 10). Banna (P.W. 2) in his examination-in-chief admitted that Mst. Lada was in the field where crop of chilly was standing, and then in his cross-examination admitted that Mst. Lada had come to them after Ramlal had already beaten them. In these circumstances, Mst. Lada cannot be said to have seen the accused-appellants assaulting Dhanna & Banna. Nothing significant has been elicited in cross-examination of Mst. Lada, Chanta, Mangi lal, & Banna so as to doubt their presence at their agricultural field at the time of occurrence, nor can it be said that they have not seen the accused-appellants having come to their fields and their talks in between Dhanna & Banna as regard to the close of water channel of its diversion to their field. So, their evidence as to the presence of the accused appellants in the field of Dhanna, Banna, Smt. Lado, Smt. Chanta & Mangilal, is totally consistent. Smt. Chanty (P.W. 4) has fully supported the testimony of Banna (P.W. 2) and there is nothing in her evidence so as to disbelieve her testimony. Smt. Lado (P.W. 3), Mangilal (P.W. 10), Smt. Chanta (P.W. 4) denied the presence of Gopal (P.W. 5), Chhitar (P.W. 6), Kana (P.W. 7), & Gangaram (P.W. 8) nearby the place of occurrence on the day of incident, Thus, when their presence at the scene of occurrence is doubtful then no adverse inference can be drawn against the prosecution by saying that the independent witnesses did not support the prosecution story, in the light of other consistent evidence brought on record so as to prove the participation of the accused-appellants in assaulting the deceased and the injured. And, the contention of the learned Counsel for the appellant does not appear to be correct and the testimony of Banna (P.W. 2) and Mst. And, the contention of the learned Counsel for the appellant does not appear to be correct and the testimony of Banna (P.W. 2) and Mst. Chanta (P.W. 4) cannot be thrown out of the Court merely because, P.Ws. 5 to 8 have not supported the prosecution version. 12. It is trite that the conviction can be based on the testimony of a single witness if he is of sterling worth. In the case at hand, two of the witnesses, namely, Banna (injured - P.W. 2) and Smt. Chanta (P.W. 4) have fully supported the prosecution story. It is true that those two witnesses are closely related to the deceased and each others. But there is no law that the testimony of a relative witness should be discarded or rejected in toto merely because of their being relatives. The law is that the testimony of such a relative witness should be given more weight because, he will not try to leave real culprit free but he will try to book the actual culprit. We find no circumstances so as to discard the testimony of Banna & Chanta (P.W. 4) on the ground of any ill-will or pre-judiceness or enmity against the appellants. In fact, nothing has been elicited in cross-examination of these two witnesses so as to establish enmity, if any. They had no axe to grind against the appellants or any of the members of their family. Their fields are situated adjacent to each others. In fact material part of the evidence of these two witnesses was not subjected to cross-examination. Obviously, they had no enmity with the appellants, or even suggested, in statement under Section 313, Cr.P.C. Thus, the testimony of these two witnesses (P.W. 2 & P.W. 4) cannot be disbelieved on the grounds stated by the learned Counsel for the appellants. 13. The evidence of Mangilal (P.W. 10) father of the deceased and Banna (P.W. 2) in fact is based on the version given out to him by P. Ws. 3 &4 and he did not at all witness the actual assault. 14. Eye-witness account has been given by injured Banna (P.W. 2) and Smt. Chants (P.W. 4). The presence of these witnesses so also that of Smt. Lada (P.W. 3) at the place of occurrence was natural. 3 &4 and he did not at all witness the actual assault. 14. Eye-witness account has been given by injured Banna (P.W. 2) and Smt. Chants (P.W. 4). The presence of these witnesses so also that of Smt. Lada (P.W. 3) at the place of occurrence was natural. Banna (P.W. 2) an injured witness and brother of deceased, Dhanna while deposing in the Court has graphically narrated the whole occurrence corroborating the version given out and collected during the course of investigation, and despite a lengthy cross-examination, nothing could be elicited by the defence Counsel as to discard his and his wife's testimony as to the actual assault on the person of the deceased and himself. As stated earlier, the medical evidence in consistent and corroborative in connecting the accused-appellants, that is, in Ramlal having used his lathi in inflicting more than two blows on the vital part, viz. head of the deceased, and Magna having used his lathi in inflicting blows on the person injured Banna (P.W. 2). The cause of death of the deceased as a result of head injury and during autopsy, a large haematoma with clotted blood was found in the scalp and upon cleaning the clotted blood, there was linear fracture of left parietal bone. From the consistent evidence discussed above, appellant Ramlal inflicted lathi blows repeatedly on the head of Dhanna and thus causing head injury by landing repeated lathi blows on the vital part of the body tends to disclose premeditation on the part of the appellant (Ramlal) and, thus, his action would fall within the ambit of clause thirdly of Section 300 of the Indian Penal Code. 15. How the question which remains for consideration is as to whether both the appellants had the common intention to cause injuries to the deceased or the injured. For this a brief reference to the version as given in the First Information Report is relevant. As has come on record, there was some altercation between the deceased and the appellant (Ramlal). Ramlal came to the field of the deceased and started closing the water channel so as to divert the water flow to his own field. The water was being flown from the well of the deceased through his channel in the field. As has come on record, there was some altercation between the deceased and the appellant (Ramlal). Ramlal came to the field of the deceased and started closing the water channel so as to divert the water flow to his own field. The water was being flown from the well of the deceased through his channel in the field. The deceased protested the action of the appellant saying that he (appellant) would wait for his turn because only a few portions of his field remained unirrigated. It was thereupon that Ramlal having become furious, landed lathi blows on the head of the deceased and Magna landed lathi blows on the person of Banna. According to the first version in Ex. P.13, Banna was beaten by Magna, and infliction of lathi blow by Magna on the person of the deceased has not assigned. From the act assigned to Magna, it cannot be said that Magna had common intention to cause injuries in respect of causing the death of Dhanna (deceased). The offence committed by Magna for causing hurt to Banna would fall within the ambit of Section 323, IPC. The offence of Section 447, IPC, is proved on record against both the appellants. Ramlal alone would be guilty in respect of causing death of the deceased, under Section 302, IPC. It follows from that the conviction of Magna under Section 302/34, IPC, must be set aside but that of Ramlal has to be maintained. 16. Accordingly, we maintain the conviction and sentence of Ramlal under Section 302, IPC but acquit Magna of the charge under Section 302 read with Section 34, IPC. The conviction and sentence of both the appellants under Section 447, IPC, are maintained. Ramlal is acquitted of the charge under Section 323 or 323/34 IPC, and it follows that his conviction and sentence under that sections are set aside. The conviction of Magna under Sections 323 and 447 IPC is maintained but, his sentence is reduced to a term already undergone by him. Magna is said to have been on bail. His bail bonds stand discharged. He need not surrender. Ramlal is in jail. He be retained in jail to serve out the sentence upheld by us, as above. 17. This appeal is allowed to the extent indicated.Appeal partly allowed. *******