JUDGMENT 1. - Appellants (1) Babban, (2) Munne alias Mohammed, (3) Hashim, (4) Zulfkaar Bhutto and (5) Raisul Hasan have been convicted for the offence under section 302/149 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each and in default, to further undergo one month's simple imprisonment by the impugned judgment dated 29.9.1999 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar. They have also been convicted for the offence under sections 148 and 452 Indian Penal Code and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 500/- and in default, to further undergo one month's simple imprisonment on each count. They have also been convicted for the offence under section 323 Indian Penal Code and sentenced to one month's simple imprisonment. All the sentences have been ordered to run concurrently. 2. Briefly stated the prosecution case is that on 18.8.1997 in the night at 12.10 a.m., PW-1 Mauja Khan lodged an oral FIR at Police Station, Purani, Abadi, Sri Ganganagar stating inter alia that at about 9.00 p.m. while he was at his brother PW-4 Sabban Khan's house, appellants-Babban, Munne alias Mohammed, Hashim and Zulfkaar Bhutto armed with weapons like sword etc. arrived and challenged Subban Khan's son Phoole Khan. The accused persons caught and dragged him outside the house. All the four mounted a joint assault on Phoole Khan. PW-1 Sabban Khan tried to rescue his son Phoole Khan but accused-Hashim gave a lathi blow on his head on account of which he became unconscious and fell down. Appellants-Babban and Zulfkaar Bhutto also caused injuries to Sabban Khan. He also stated that a large number of people assembled on the spot. On this information, police registered a case and proceeded with investigation. The injured Phoole Khan was taken to the hospital, doctor advised to take him to Jaipur. However, he was taken to hospital at Ludhiana, where he succumbed to the injuries. Dr. Nisha Tung prepared the injury report Ex.P/11. The dead body was brought to Ganganagar. The post-mortem was conducted by PW-5 Dr. K.N. Markandey and prepared the post-mortem report Ex.P/5. He noticed the following injuries on the person of deceased-Phool Khan: "1. Lacerated wound 6/10" x 4/10" and scalp deep on Rt. parietal region; 2. Lacerated wound 1/2" x ⅓" x scalp deep on Rt. temporal region above Rt. The post-mortem was conducted by PW-5 Dr. K.N. Markandey and prepared the post-mortem report Ex.P/5. He noticed the following injuries on the person of deceased-Phool Khan: "1. Lacerated wound 6/10" x 4/10" and scalp deep on Rt. parietal region; 2. Lacerated wound 1/2" x ⅓" x scalp deep on Rt. temporal region above Rt. ear; 3. Lacerated wound 4/10" x 4/10" x muscle deep on left eye- brow." In his opinion, the cause of death was head injury. 3. After usual investigation, police laid charge-sheet against the appellants for the offence under sections 302/149, 147, 148, 323 and 452 Indian Penal Code. The appellants denied the charges levelled against them and claimed trial. The prosecution produced eight witnesses in support of the case. In their statement under section 313 Cr.P.C., appellants denied the correctness of the prosecution evidence appearing against them. The learned trial Court found the testimony of the eye-witnesses Fasi-Ul-Hasan (PW-2) and Subban Khan (PW-4) creditworthy. The learned trial Court relying on the testimony of these eye-witnesses corroborated by the medical evidence, found the charges proved against the appellants. The learned trial Judge, accordingly, convicted and sentenced the appellants in the manner noticed above. 4. Assailing the conviction, learned counsel for the appellants submitted that there are several infirmities in the statements of the prosecution witnesses, which renders the prosecution version unreliable. It is also submitted that no independent witness has been examined by the prosecution. It is further submitted that even the version as given in the FIR has not been supported by PW-1 Mauja Khan. The prosecution has failed to explain injuries on the person of appellants viz; Zulfkar Bhutto and Hashim, in these circumstances, it must be inferred that the prosecution has suppressed the genesis and origin of the occurrence, more particularly when the defence has come out with a definite version that it was the deceased-Phool Khan and PW-4 Sabban Khan who visited the house of Hashim and abused them, which led to quarrel between the parties. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. 5. With the assistance of the learned counsel for the parties, we have perused and critically scrutinised the entire evidence on record. It is of course true that PW-1 Mauja Khan denied to have lodged the FIR, therefore, the Public Prosecutor declared him hostile and cross-examined him. 5. With the assistance of the learned counsel for the parties, we have perused and critically scrutinised the entire evidence on record. It is of course true that PW-1 Mauja Khan denied to have lodged the FIR, therefore, the Public Prosecutor declared him hostile and cross-examined him. PW-1 Mauja Khan stated that in the night at about 11.00, he left the house for stroll on the road. Near his house and ahead of Kedar Chowk, there is a street where Phoole Khan and his father Sabban Khan alongwith others in front of the house of accused-Hashim, were shouting on which accused-Hashim came out of the house, upon which those people made an assault on Hashim. Thereafter, Bhutto also came out. People started beating him also. This attracted a large crowd which attacked on Phoole Khan and Sabban Khan. Thereafter, they were taken to the hospital. Later-on, he came to know that Phoole Khan died in the hospital at Ludhiana. He also stated that the police got his thumb impression on a paper. He could not disclose as to who among the crowd made assault on Phoole Khan and Sabban Khan. He also stated that though accused-Hashim and Bhutto were present on the spot but they did not attack on Phool Khan and Sabban Khan. In the cross-examination, he completely denied the version given by him in the FIR. He even denied the fact that he was sitting at the house of his brother Sabban Khan. Though he stated that he had not lodged the FIR Ex.P/1 but on being cross-examined, he stated that his statement in FIR Ex.P/1 was to the effect that Phool Khan and Sabban Khan were shouting at the house of Bhutto. Thereafter, they made an assault on Hashim and Bhutto. He also stated that it was the crowd, which mounted assault on Phool Khan and Sabban Khan. He pleaded ignorance as to why the police did not record his statement correctly. The latter version given by him clearly shows that he had been telling lie that he did not lodge the FIR Ex.P/1. In the subsequent part of cross-examination, he has admitted to have lodged the FIR but according to him, the correct version of the incident given by him was not recorded by the police. It clearly appears that this witness has been won over by the defence. 6. In the subsequent part of cross-examination, he has admitted to have lodged the FIR but according to him, the correct version of the incident given by him was not recorded by the police. It clearly appears that this witness has been won over by the defence. 6. PW-4 Sabban Khan is the father of deceased-Phoole Khan. He stated that there was enmity between the accused persons and his son deceased-Phool Khan. On the fateful day at about 9.00 p.m., he alongwith Phoole Khan, his wife, brother Mauja Khan was sitting in the compound of the house. At that time, appellants-Babban, Hashim, Bhutto, Raisool and Munne entered into the house. While accused-Raisool was carrying a sword in his hand, Babban and Munne were armed with lathis and Hashim and Bhutto having hockeys in their hands. They antered in the house and challenged Phoole Khan to come out of the house. They ,aught hold of Phoole Khan and dragged him outside the house. He also came out of the house and raised alarm. He further stated that Raisool was exhorting to kill Phoole Khan. Accused-Hashim gave a hockey blow on the head of deceased-Phoole Khan. Babban, Munne and Bhutto also mounted an assault on Phoole Khan with the weapons in their hands. He tried to rescue his son but he was also assaulted. He further stated that his brothers Fassu, Massu and Kasid also arrived. He immediately took Phoole Khan to the hospital. At about 10.00 p.m., the doctor advised him to take his son to hospital at Jaipur. He however instead of taking his son to Jaipur, took him to Ludhiana. He was admitted in the C.M.C. Hospital, where he succumbed to the injuries. Sabban Khan also sustained injuries in the incident. He was medically examined by the doctor at Sri Ganganagar. The cross-examination is directed mostly towards the fact that there were persons available on the spot, who could have been examined as independent witnesses. He has denied the defence version put to him. Nothing substantial has been elicited which may discredit the testimony of this witness. 7. PW-2 Fasi-Ul-Hasan stated that at about 9.00 p.m. hearing the cries, he came out of the house and found that appellants-Bhutto, Hashim, Babban, Munne and Raisool were beating Phool Khan. He also stated that Phoole Khan having sustained injuries, fell down. On intervention, Sabban Khan was also assaulted. 7. PW-2 Fasi-Ul-Hasan stated that at about 9.00 p.m. hearing the cries, he came out of the house and found that appellants-Bhutto, Hashim, Babban, Munne and Raisool were beating Phool Khan. He also stated that Phoole Khan having sustained injuries, fell down. On intervention, Sabban Khan was also assaulted. He further stated that Sabban Khan and Mauja Khan took the injured Phool Khan to Hospital. In the cross-examination, he stated that all the accused persons made a joint assault on the deceased. 8. PW-8 E. Rai Singh stated that he was working as Record Officer in the CMC Hospital, Ludhiana. He also stated that on 17.8.1997, Dr. Nisha Tung was working in the hospital. He has identified the signatures of Dr. Nisha Tung on Ex.P/11. He also stated that Dr. Nisha Tung left India long back and was working somewhere in the United States of America. Ex.P/1 1 is the injury report prepared by Dr. Nisha Tung in the CMC Hospital at Ludhiana. 9. PW-5 Dr. K.N. Markandey state that he conducted the post-mortem of the dead body of Phool Khan on 19.8.1997 at 5.45 p.m. vide Ex.P/5. He further stated that on 20.8.1997, he examined PW-4 Sabban Khan and noticed the following injuries on his person vide Ex.P/6 : "1. Complaining of pain left knee lateral side; 2. Complaining of pain Rt. foot ankle; 3. Abrasion with scab 2 1/4" x ⅛" Rt. forearm middle 1/7 palm; 4. Complaining of pain back in right side." In his opinion, all the injuries were simple in nature caused by blunt object. 10. PW-3 Subhash Chandra is a formal witness. 11. PW-6 Gopi Ram is the A.S.I. He has given the details of investigation. Similarly, PW-7 Lun Singh, Investigating Officer, has given details of investigation including the recovery of weapons of offence. 12. The defence examined DW-1 Dr. B.M. Sharma. He stated that on 18.8.1997, he was posted as Medical Jurist in the Government Hospital at Sri Ganganagar. He further stated that he examined appellants-Bhutto and prepared injury report Ex.D/3 as follows : "1. Contusion 3" x 1" Rt. shoulder top; 2. Incised wound 3/4" x 1/4" x bone deep Rt. mastoid area; 3. Incised wound 1" x 1/10" x cartilage deep top of Rt. Ear." The doctor found injury No. 1 simple caused by blunt object. He further stated that he examined appellants-Bhutto and prepared injury report Ex.D/3 as follows : "1. Contusion 3" x 1" Rt. shoulder top; 2. Incised wound 3/4" x 1/4" x bone deep Rt. mastoid area; 3. Incised wound 1" x 1/10" x cartilage deep top of Rt. Ear." The doctor found injury No. 1 simple caused by blunt object. Injuries No. 2 and 3 were also found to be simple in nature caused by sharp edged weapon. 13. On the same day, the doctor examined appellant-Hashim and prepared injury report Ex.D/4 as follows : "1. Incised wound 2" x 1/4" x scalp deep left parietal; 2. Incised wound 2" x 1/4" x bone deep occipital area; 3. Incised wound 1" x 1/4" x bone deep Rt. parietal." All the injuries were found to be simple in nature caused by sharp edged weapon. 14. The main criticism levelled against the star prosecution witness PW-4 Sabban Khan is that he being the father of the deceased is highly interested witness and, as such no reliance can be placed on his testimony, more particularly when the prosecution could have examined independent witnesses. The 'contention deserves to be rejected. The relationship is not a factor to affect the credibility of a witness. The theory that a close relative being a partisan witness should not be relied upon, has been repelled by the Apex Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 . It is observed therein that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. 15. Recently, the Apex Court in State of Rajasthan v. Teja Ram reported in AIR 1999 SC 1776 : 1999 Cr. L.R. (SC) 244 observed that over-insistence on witness having no relation with the victims often results in criminal justice going away. The Court further observed that when any incident happens in a dwelling house or nearby, the most natural witnesses would be the inmates of the house. In the instant case, the appellants alleged to have entered into the house of PW-4 Sabban Khan, challenged his deceased son Phoole Khan, dragged him out and mounted fatal assault on him. In these circumstances, PW-4 Sabban Khan who is the father of the deceased, is a most natural witness. In the instant case, the appellants alleged to have entered into the house of PW-4 Sabban Khan, challenged his deceased son Phoole Khan, dragged him out and mounted fatal assault on him. In these circumstances, PW-4 Sabban Khan who is the father of the deceased, is a most natural witness. There was no reason to falsely implicate the appellants and screen the real culprits. 16. As far as the question of non-examination of independent witnesses is concerned, the dispute was in two factions of the same community and the locality. Even the real uncle of the deceased viz; PW-1 Mauja Khan did not have courage to depose against the appellants, as such, he was declared hostile. Thus, the trial Court rightly concluded that in faction ridden village, independent witnesses are not easily available. 17. Another issue involved in the instant case is the effect of non-explanation of the injuries on the person of appellant-Zulfkaar Bhutto and Hashim. 18. The Apex Court in Mohar Rai v. State of Bihar reported in AIR 1968 SC 1281 has held that failure of prosecution to offer any explanation regarding the injuries found on the person of the accused may lead to the inference that the evidence related to the incident is not true or in any case, not wholly true. 19. In Lakshmi Singh v. State of Bihar reported in (1976) 4 SCC 394 : 1977 Cr. L.R. (SC) 76 , it is held that non-explanation of injuries on the person of the accused may affect the prosecution case but such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of prosecution. The Court further observed that where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood, the mere fact that the injuries are not explained by the prosecution can not by itself be a sole basis to reject the evidence. Recently, the Apex Court in Sucha Singh v. State of Punjab reported in 2003 SCC (Cri) 1697 : 2003-04 (Suppl.) Cr. Recently, the Apex Court in Sucha Singh v. State of Punjab reported in 2003 SCC (Cri) 1697 : 2003-04 (Suppl.) Cr. L.R. (SC) 619 dealing with all the earlier cases on the issue of non-explanation of injuries and its effect on prosecution observed as follows : "Non-explanation of in an prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries." 20. In the instant case, the injuries on the person of both the appellants have been proved by DW-1 Dr. B.M. Sharma vide Ex.D/3 and Ex.D/4. As far as accused-Zulfkaar Bhutto is concerned, he sustained three injuries, out of which one is caused by blunt object ar;d two by sharp-edged weapon. However, the injuries are simple in nature. In case of appellant-Hashim, all the three injuries are simple in nature caused by sharp-edged weapon. It is significant to notice that the defence has not put any question to the prosecution witnesses regarding injuries on the person of the appellants. Thus, the prosecution had no occasion to explain the injuries on the person of both these appellants. The Apex Court in Ram Lagan Singh v. State of Bihar reported in AIR 1972 SC 2593 has observed that the prosecution is not called upon in all cases to explain the injuries received by the accused-persons. It is for the defence to put question to the prosecution witnesses regarding injuries on person of accused persons. Thus, it is well established that there is no invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. 21. PW-4 Subban Khan has clearly stated that the appellants-Babban, Hashim, Bhutto, Raisool Anand Munne entered into his house and challenged his deceased son Phoole Khan. Raisool was armed with sword and others with lathis and hockeys. They dragged him out of the house and made an assault on him. Accused-Hashim gave a lathi blow on the head of Phool Khan. Babban, Munne and Bhutto also gave him beating. On intervention, he was also assaulted. The statement of another eye-witness PW-2 Fasi-Ul-Hassan is almost on the came line. They dragged him out of the house and made an assault on him. Accused-Hashim gave a lathi blow on the head of Phool Khan. Babban, Munne and Bhutto also gave him beating. On intervention, he was also assaulted. The statement of another eye-witness PW-2 Fasi-Ul-Hassan is almost on the came line. He has stated that appellants- Bhutto, Hashim, Babban, Munne and Raisool were giving beating to Phool Khan. He further stated that Bhutto and Hashim inflicted injuries by hockeys and Munne and Babban by lathis. We do not find any reason to discredit the testimony of both the eye-witnesses, more particularly when it finds corroboration from the medic al evidence, except in case of accused-Raisool. The deceased sustained three injuries, out of which injuries No. 1 and 2 are skull deep on the parietal bone and third injury is muscle deep on eyebrow of left eye. In the opinion of the doctor, injuries were sufficient in the ordinary course of nature to cause death. PW-4 also sustained injuries, which have been proved by injury report Ex.P/6. He has sustained four injuries caused by blunt object. As far as Raisool is concerned, his name does not find place in the FIR. It is alleged that he was armed with a sword but there was no injury either on the person of deceased-Phool Khan or the injured PW-4 Sabban Khan, caused by sharp edged weapon. Thus, it is not possible to hold that Raisool also participated in the incident. However, the evidence of PW-2 Fasi-Ul-Hasan and PW-4 Sabban Khan is held to be creditworthy as against the appellants-Babban, Munne, Hashim and Zulfkaar Bhutto, Fifth appellant-Raisool deserves to be acquitted of the charges levelled against him. 22. The charge against all the five appellants was that they were members of the unlawful assembly whose common object was to commit the murder of Phool Khan deceased and that they in prosecution of the common object, committed his murder. We have come to the conclusion that the murder was committed by four culprits in furtherance of the common intention. As we have not found one of the appellants viz; Raisool guilty, conviction of the appellants for the offence under section 302/149 is not sustainable. In these circumstances, though the appellants were charged for the offence under section 302/149 Indian Penal Code, they can be convicted under section 302/34 Indian Penal Code. As we have not found one of the appellants viz; Raisool guilty, conviction of the appellants for the offence under section 302/149 is not sustainable. In these circumstances, though the appellants were charged for the offence under section 302/149 Indian Penal Code, they can be convicted under section 302/34 Indian Penal Code. No prejudice has been caused to the appellants by alteration of the charge from the offence under section 302/149 to 302/34 Indian Penal Code. Such a course is available in view of decision of the apex Court in Jagir Singh v. State of Punjab reported in AIR 1968 SC 43 . 23. Consequently, the appeal is partly allowed as follows : (i) Appellant-Raisool S/o Naimool Hasan is acquired of the offence under section 102/149 Indian Penal Code and all other allied offences. He is on bail. His bail bonds stand discharged. (ii) The conviction of all other appellants viz; Babban, Munne, Hashim and Zulfkaar Bhutto for the offence under section 302/149 Indian Penal Code is converted into the offence under section 302/34 Indian Penal Code. They will undergo the sentence of life imprisonment as ordered by the trial Court. Their conviction and sentence for allied offences shall remain intact. They are in jail. They will serve-out the remaining part of the sentence. Appeal partly allowed. *******