JUDGMENT This appeal is filed by Ramji against the judgment passed by Shri Janeshwar Goel, Sessions Judge. Hamirpur in Sessions Case No. 1 of 1989 dated 30-3-1991. By means of impugned judgment, the appellant has been held to be guilty of committing offence under Section 304 (Part-II) of the Indian Penal Code and has been directed to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1,000/-, in the event of non-payment of fine, the appellant has been directed to undergo further rigorous imprisonment for 3 months. 2. The appellant along with his father, mother and sister was prosecuted under Sections 304, 323 read with Section 34 of the Indian Penal Code. The case of the prosecution against all the four aforesaid persons arrayed as accused, before the trial court was that Bakshi Ram, father of the deceased Mehar Chand and Relu Ram are real brothers and their houses are situated nearby but they were living separately for the last 20 years along with their respective families in village Palehra. On 6-10-1987 at about 6-00 P.M. pet dog of Bakshi Ram put his mouth into the pitcher of Relu Ram, when the appellant is stated to have given a stone blow to the dog. Geeta Devi, wife of Bakshi Ram took exception to this act to the appellant and asked him as to why he has given a stone blow to the pet dog, when not only Ramji abused her but also threw a stone towards her. Above all, Ramji-appellant tried to give a blow with a bamboo stick to Bakshi Ram-complainant but he somehow escaped. Another stone was thrown by the appellant at Smt. Saroti Devi, daughter-in-law of complainant Bakshi Ram, who was standing in the fields. At such point of time, Mehar Chand deceased came to the scene from the shop and found the appellant abusing as well as throwing stones, then he asked Garibo Devi, mother of the appellant as to why he (appellant) is indulging in these acts. At such point of time, the appellant is stated to have brought Bharota (an agricultural implement. for breaking big blocks of earth) and with this, he is stated to have given a blow on the neck of Mehar Chand, on receipt whereof he immediately fell down and became unconscious. At such point of time, the appellant is stated to have brought Bharota (an agricultural implement. for breaking big blocks of earth) and with this, he is stated to have given a blow on the neck of Mehar Chand, on receipt whereof he immediately fell down and became unconscious. Mehar Charut was taken in such condition to Barsar Hospital on the night intervening 6th and 7th October, 1987 where he died at about 12-00 Noon on 7-10-1987 as a result of injury on his occipital region. After post-mortem of the dead body, a case was registered under Sections 304/323 read with Section 34 of the Indian Penal Code against the appellant, his sister and both his parents at Police Station, Barsar. During the course of investigation, Bharota Ex. P-1 and sticks Exs. P-2 to P-4 were produced by the appellant which were taken into possession vide recovery memos Ex. PB and Ex. PC respectively. During the course of investigation, it was noticed that the appellant as well as Relu Ram had sustained injuries. Besides this, Bakshi Ram complainant-father of the deceased Mehar Chand also received minor injuries. After completion of investigation, challan was filed before the trial court and. since the offence under Section 304 was exclusively triable by the Court of Session, the appellant along with three other persons was committed to the Court of Session at Hamirpur where all four of them were charged for having committed culpable homicide not amounting to murder in furtherance of their common intention by giving stick blows and Bharota blow to Menar Chand, who succumbed to these injuries and they also caused simple hurt to Bakshi Ram in furtherance of their common intention to which they pleaded not guilty and claimed to be tried. By means of impugned judgment, the other three persons were acquitted of the charges against them as there was no evidence on record to convict them but the appellant was found to be guilty of offence under Section 304 (Part-II). After hearing the appellant on the quantum of sentence, he was sentenced to undergo rigorous imprisonment for 3 years as also to pay a fine of Rs. 1,000/- in default of payment whereof he was given 3 months further rigorous imprisonment. It is this judgment of his conviction and sentence passed by the trial court that is assailed by the appellant in the present appeal. 3. 1,000/- in default of payment whereof he was given 3 months further rigorous imprisonment. It is this judgment of his conviction and sentence passed by the trial court that is assailed by the appellant in the present appeal. 3. Learned counsel for the appellant has argued that in the instant case, the judgment passed by the trial court convicting his client cannot be sustained. In support of his appeal, Shri Sharma has urged that there is no independent evidence as the so called independent witness PW-2 Dalip Chand has firstly not supported the case of the prosecution so far inflicting of injury to the deceased, and secondly even the medical evidence does not conform to the oral evidence given by PW-1 Bakshi Ram and other witnesses. Besides this, Shri Sharma has submitted that Bakshi Ram has reason to get the appellant falsely involved in this case because later had appeared as a witness against the former in a case filed by the brother of this witness for beating up his mother. Above all, as per Shri Sharma, the pet dog was admittedly brought up as a child by the complainant PW-1 Bakshi Ram and the same hit by stone by the appellant, when this animal put his mouth into the pitcher of Relu Ram in his compound; thus, learned counsel submits that it would not be safe to place reliance on the statements of Bakshi Ram and his other family members. Besides this, Shri Sharma also submitted that it is Bakshi Ram and his family members including deceased who were the aggressors. With reference to Ex. PA , report made by this PW-1, Mr. Sharma pointed out that in order to get the appellant involved in this case, the witness had gone on record to make improvements in his statement made in the court. Mr. Sharma further pointed out that the acquittal of other three alleged co-accused completely belies the case set up against all of them including the present appellant. Sharma pointed out that in order to get the appellant involved in this case, the witness had gone on record to make improvements in his statement made in the court. Mr. Sharma further pointed out that the acquittal of other three alleged co-accused completely belies the case set up against all of them including the present appellant. On the other hand, Shri Chauhan, while controverting the submissions of learned counsel for the appellant, has pointed out that on the basis of the materials on record, the conclusions arrived at by the trial court are correct and he further pointed out that the statement of PW-1 itself is enough to uphold the conviction of the appellant which statement, according to him, is natural and gives a correct version of the incident. It was further argued on behalf of the State that the appellant had given a fatal blow is established beyond any shadow of doubt and on this basis, he has prayed for dismissal of this appeal. 4. In the instant case, PW-1 Bakshi Ram and PW-3 Ram Chand are the members of same family. So far other so called eye witnesses namely Preetam Chand and Saroti Devi are concerned, they were not examined as Preetam Chand was only tendered for cross-examination as PW-4, so there is no statement of this witness on which he could be cross-examined and Saroti Devi was given up to avoid duplicacy (sic) as is evident from the statement of Public Prosecutor dated 20-8-1990. Thus, remains the only independent witness Duni Chand, who has not said anything regarding any injury having been inflicted by the appellant or for that purpose any other person. Since this witness had not supported the case of the prosecution, as such he was permitted to be cross-examined by the Public Prosecutor. He denies the suggestion made on behalf of the prosecution in his cross-examination that the deceased had fallen down due to injury given with Bharota Ex. P1 in his presence though he says that he observed a depression of the skull of deceased who was unconscious. He has denied the portions A to A, B to B, C to C, D to D and E to E of his statement Ex. PD. P1 in his presence though he says that he observed a depression of the skull of deceased who was unconscious. He has denied the portions A to A, B to B, C to C, D to D and E to E of his statement Ex. PD. Now the question arises as to whether it would be safe to accept the statement of Bakshi Ram and his son PW-3 Ram Chand in the background of this case. From the evidence of Bakshi Ram, it is clear that he was pained on his pet dog being hit by the appellant which he had brought up as a child. Further the evidence of these two witnesses reveals that it was the appellant and his other alleged co-accused who were the aggressors. On the other hand it has come in the statement of PW-11 Dr. Sudarshan Kumar, Medical Officer, posted at Community Health Centre, Barsar that he had examined the deceased as well as Bakshi Ram and found the injuries detailed in his statement. Besides this he admits that on 7th October, 1987, he had examined both, Relu Ram as well as Ramji Dass-appellant and had found injuries which were simple in nature caused with a blunt weapon on the person of both these witnesses. He has further pointed out that the injuries found on the person of Ramji-appellant could be caused with a hockey stick or Lathi. In this context it may be appropriate to refer to the statement of PW-1 Bakshi Ram that after the appellant had given the fatal Bharota blow to the deceased, all the four persons, accused of the offence, gave one Lathi blow each on the person of Mehar Chand deceased. Whereas as per PW-11 only one injury was found in the occipital region of the deceased by PW-11, who had first of all examined the deceased on 7-10-1987 at 1-05 A.M. and similar is the description of injuries given by PW-5 Dr. Swatantar Sharma, who had performed the post-mortem examination on his dead body. In this view of the matter, it is evident that this witness has not hesitated to take the help of exaggeration as well as lies in order to get the appellant and his mother, father as well as sister involved in this case. Though not very vital yet that in daily diary Ex. In this view of the matter, it is evident that this witness has not hesitated to take the help of exaggeration as well as lies in order to get the appellant and his mother, father as well as sister involved in this case. Though not very vital yet that in daily diary Ex. PA injury is stated to have been caused on the left eye of PW-1. This was the report lodged by PW-1 Bakshi Ram in the first instance, however, in the Medico-legal-certificate Ex. PL, issued by PW-11, injury was found on his right upper eye-lid. Further, it has come in evidence that Shroti Devi, daughter-in-law of Bakshi Ram, was injured by the appellant and his party, but she was not got medically examined. In these circumstances, it would be safe to inter that the incident had not taken place in the manner attributed by the prosecution. Further, Preetam Chand, son of complainant-Bakshi Ram was named in the F.I.R. who had not been examined and was simply tendered for cross-examination as PW-3. Question of cross-examination of a witness only arises when any statement is made by the witness. In the present case there was no statement made by the witness so the question of his cross-examination did not arise. So far Bakshi Ram is concerned, he has reasons to involve the appellant as detailed above. In these circumstances, it would not be safe to accept the evidence of PW-1 to uphold the conviction of the appellant. 5. PW-1 Bakshi Ram and his sons are being not believed should not mean this court to say that it is a rule of universal application that relative witnesses are not to be believed at all. In fact, depending upon the nature facts of each, the matter has to be examined. Where the evidence is such which inspires confidence and finds support from other materials, the conviction of an accused is to be upheld. So far PW-3 Ram Chand, son of Pw-1 Bakshi Ram is concerned, if his statement made in Court is read vis-a -vis his statement made u/s. 161 Cr. P.C. Ex. DA, it is evident that he has gone on record to make improvements by stating something new before the court. So far PW-3 Ram Chand, son of Pw-1 Bakshi Ram is concerned, if his statement made in Court is read vis-a -vis his statement made u/s. 161 Cr. P.C. Ex. DA, it is evident that he has gone on record to make improvements by stating something new before the court. The manner in which he shows his presence on the scene is also improbable because admittedly, he was grazing his goats and according to him within a period of 3 months, he was able to collect his six heads of goats and tagged up those in the cattle-shed and then reaching the scene of occurrence. Both, PWs 1 and 3 have stated that Mehar Chand had come from the shop in the meantime whereas in Ex. PA he was stated that his son reached the scene of occurrence. However, in the statements both these witnesses have stated that the deceased came from shop and made inquires from Ramji as to why he was hurling abuses and hitting his mother with stones. In these circumstances, the statements of PWs 1 and 3 are not worthy of credence so as to sustain the conviction of the appellant. Again at the risk of repetition, it may be pointed out that both of them are not left any stone unturned to ensure that the appellant and his family members are fixed up in this case and for that purpose they have not stated during the course of investigation before the police at the first instance. 6. Further, the medical evidence does not also corroborate the statements of PWs 1 and 3 so far the inflicting of injuries by the appellant and his other alleged co-accused on the person of deceased is concerned. PW-1 is categoric regarding all the four persons charged in this case having inflicted one blows each with sticks Ex. P-2 to P-4, besides one blow with Bharota Ex. P-1 by the appellant to the deceased. Whereas the statement of PW-11, who first of all examined Mehar Chand deceased at Primary Health Centre, Barsar on 7-10-1987 at 1.05 A.M. did not find more than one injury, and in post-mortem examination, PW-5 also found only one injury on the person of the deceased. P-1 by the appellant to the deceased. Whereas the statement of PW-11, who first of all examined Mehar Chand deceased at Primary Health Centre, Barsar on 7-10-1987 at 1.05 A.M. did not find more than one injury, and in post-mortem examination, PW-5 also found only one injury on the person of the deceased. In the face of this position it is evident that the medical evidence does not support the prosecution evidence in its material particulars, so far the injuries inflicted upon the person of deceased are concerned, as per the statements of so called eye witnesses. 7. The possibility of the deceased and party namely, PW-1 Bakshi Ram, PW-3 Ram Chand and his other family members having gone to the house of Relu Ram and having assaulted the appellant and his other three alleged co-accused cannot be completely ruled out. This seems to be probable because when the pet dog of Bakshi Ram PW-1 was hit with a stone, the possibility of the deceased as well as Bakshi Ram etc. having taken exception to it cannot be completely ruled out. There is no dispute that the deceased was lying near the house of the appellant. It has also come in evidence that near the house of the appellant, there is a Kiari (kitchen garden) from where the deceased was removed by the complainant party. As such, the deceased and other members being the aggressors cannot be completely ruled out. Needless to point out that when the complainant party came to the house of the appellant, the appellant and his other family members appear to acted in right of their private defence. 8. It has also been proved on record that Relu Ram and appellant had sustained injuries. It is also not the case of the prosecution that these are self inflicted injuries. Both these persons were examined at the instance of the police on 7-10-1987. In all probabilities, injuries found on the person of Ramji appellant were caused by hockey stick or Lathi as stated by PW-11, who examined him. In these circumstances the complainant party having gone to the house of the appellant and having attacked him with either hockey stick or lathi is very much there. In all probabilities, injuries found on the person of Ramji appellant were caused by hockey stick or Lathi as stated by PW-11, who examined him. In these circumstances the complainant party having gone to the house of the appellant and having attacked him with either hockey stick or lathi is very much there. It appears that the police did not bother to look into this aspect of the case because the injuries were found to be simple in nature having been caused with blunt weapons as per the opinion of the doctor PW-11. As such, it will be seen that the injuries on the person of the appellant and his father Relu Ram ham remained un-explained. This not only makes the occurrence as brought out by the prosecution improbable, besides the same having not taken place in the manner and at the place as narrated by the PWs, but on the other hand makes the defence put forth by the appellant that it was the complainant party who were aggressors. Answer of Ramji to question No. 3 in his statement under Section 313 Cr. P.C. further points out the circumstances whereunder the incident had taken place. Similar is the position in the statement of other alleged co-accused. 9. For the reasons set out hereinabove, it would not be safe to uphold the conviction of the appellant ordered by the trial court. Accordingly, this appeal is allowed and thereby conviction and sentence imposed upon the appellant by the court below is set aside and he is acquitted of the charges framed against him. Fine, if deposited, be refunded to the appellant. Appeal allowed