JUDGMENT 1. - For death of two brothers namely Prabhu and Raghuveer, more than 23 persons were named in the FIR. Police, however, challaned only seven out of the accused named by the first informant. Appellants who were tried with co-accused Babu Ram, Raghuveer and Kailash, since acquitted, have however been held guilty for offence u/s. 302 read with Section IPC and sentenced to undergo R.I. for life as also to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo RI for three months, vide order of conviction and sentence recorded against them by the learned Additional Sessions Judge (Fast Track), Alwar dated 16.7.2001. It is against this order that the appellants Giluda Gillu, Lala Ram, Mana Ram and Yad Ram have filed the present appeal. 2. The occurrence leading to death of Prabhu and Raghuveer, as per prosecution version, took place 'on 1.4.2000 at 4.30 p.m. FIR with regard to the incident came to be lodged on the same day at 7.30 p.m. by Bhonr Singh, brother of deceased Prabhu and Raghuveer. It was a written report proved as Ex.P.1 on the basis of which formal FIR (Ex.P.32) came into being. Bhonr Singh in the FIR lodged by him stated that at about 4-5 in the evening on 1.4.2000 his brother Prabhu and Raghuveer were coming back from Thanaganzhi after attending hearing of a case. When they were going from Mandawara to Talvriksha, on the outskirts of the village, because of personal enmity, Girdhari son of Dola Ram Rebari, Hanuman, Lala and their younger brother sons of Girdhari Rebari, Tulsa wife of Girdhari, Hardeva, Giluda, Gopal, Shimbhu sons of Hardeva, Santi wife of Hardeva and Hardeva himself, Ramjial, Manaram, Pancha Yada sons of Bhora Jat, Prabhu, Maharam sons of Shanker, and relations of Girdhari Rebari whose name he would not know, Dholi wife of Sunda Ram, Sundaram and his four sons started beating Prabhu and Raghuveer with lathis, Farsi, jell etc. and injured them. At the spot, the occurrence was witnessed by Ranveer son of Dilip Singh, Hanuman son of Gangaram, Girvar Singh son of Mukhram Singh, Bhima son of Mukhram, Harinarain Gujar and Ramniwas son of Phools Gujar. He was taking bath in Talvriksha when the occurrence had taken place: He was told about this occurrence by Sugla Dhankar who told him that above named persons had beaten his brothers. He was taking bath in Talvriksha when the occurrence had taken place: He was told about this occurrence by Sugla Dhankar who told him that above named persons had beaten his brothers. He then straightway went to lodge the report. 3. During the course of trial, prosecution examined Dr. Bal Kishan Bajaj as PW-7 who stated that on 2.4.2000 he had conducted post mortem on the dead body of Prabhu son of Radha Kishan and found following injuries on his dead body : 1. Fracture with swelling clotted blood 10 cm x 7 cm on lower 1/2 of Leg (Rt.) grievous hurt. 2. Lacerated wound 3 cm x 1 cm x skin anterior aspect of right leg. 3. Lacerated wound clotted blood 4 cm x 2 cm x 4 cm (bone deep) medial aspect of right leg along with injury No. 1 Site blunt. 4. Swelling 10 cm x 10 cm right ankle and leg lower ⅓. 5. Bruise (bluish) 10 cm x 2 cm right lateral aspect of chest with 7th, 8th, 9th ribs - Grievous hurt. 6. Bruise (Bluish) 7 cm x 2 cm Rt. side of chest, anteriorly. 7. Bruise (Bluish) 4 cm x 1 cm left side of chest. 8. Bruise (Bluish) 7 cm x 2 cm middle of left arm posteriorly. 9. Bruise (Bluish) 5 cm x 2 cm middle of right thigh 10. Bruise (Bluish) 5 cm x 3 cm middle or right arm 11. Swelling with fracture dislocation 14 cm x 10 cm on right arm lower ⅓ with elbow dislocation. 12. Lacerated wound (clotted blood) 3 cm x 5 cm on right arm post same side as injury No.11". In the opinion of the Board of doctors of which he was a Member, Prabhu had died because of haemorrhage, shock and excessive bleeding. There were various injuries which resulted into fracture. Cumulatively, injuries sustained by Prabhu were sufficient in the ordinary course of nature-to cause death. 4. On the same very day at 8.30 p.m. Board of doctors had conducted post mortem on the dead body of Raghuveer as well. The dead body was found to have following injuries : 1. Lacerated wound 2 cm x 1 cm post aspect - Left forearm (clotted blood). 2. Lacerated wound 3 cm x 2 cm post aspect left forearm. 3. Lacerated wound 3 cm x 2 cm post aspect left forearm. 4. The dead body was found to have following injuries : 1. Lacerated wound 2 cm x 1 cm post aspect - Left forearm (clotted blood). 2. Lacerated wound 3 cm x 2 cm post aspect left forearm. 3. Lacerated wound 3 cm x 2 cm post aspect left forearm. 4. Bruise 14 cm x 10 cm right arm lower 1/2 grievous injury. 5. Lacerated wound 2 cm x 4 cm x 4 cm Rt. Arm lower 1/2 cm. 6. Swelling with # 10 cm x 10 cm middle of right finger - grievous injury. 7. Lacerated wound clotted blood 3 cm x 2 cm x 5 cm (line) deep) on anterior aspect of right thigh near to knee joint. 8. Bruise (Bluish) 12 cm x 3 cm left side of chest 10th, 11th rib - Grievous." 5. In the opinion of the Board, of which he was a Member, Raghuveer had died because of haemorrhage, shock and excessive bleeding. Cumulatively, injuries sustained by Raghuveer were sufficient in the ordinary course of nature to cause death. 6. Bhonr Singh, the first informant, who was examined as PW-1 deposed in tune with the FIR lodged by him but named only Manu, Yadarm, Balu, Raghuveer, Giluda, Lala, Girdhari, Hanuman, Hardeva, Shanti and Tulsa who had caused injuries to his brothers Prabhu and Raghuveer. He was informed of the incident of beating of his brothers by Sugla Dhankhar. 7. Matadeen examined as PW-3 stated that on 1.4.2000 at about 5 in the evening in front of house of Rebaris on the way Prabhu and Raghuveer were lying in an injured condition. All the villagers were going there to see as to what had happened. Gillu came and told him that five persons in a camel cart had put Prabhu and Raghuveer in front of their house. He then stated that he too went to see Prabhu and Raghuveer who were demanding water. He told the villagers that they should be given water whereupon the villagers told him that they were afraid. He, however, took a bucket and an empty glass. He filled the bucket with water from a hand-pump and gave water of Prabhu and Raghuveer. He enquired from them as to what had happened to them upon which they told that they were given beatings near the temple of Peerji on the road. He, however, took a bucket and an empty glass. He filled the bucket with water from a hand-pump and gave water of Prabhu and Raghuveer. He enquired from them as to what had happened to them upon which they told that they were given beatings near the temple of Peerji on the road. He told him that the assailants were Man Singh, Yadram Raghuveer, Bala and Lala. All the five persons after beating them had put them in a camel cart and thrown in front of house of Rebaris. Hands and feet of these two persons were broken. They were in pool of blood. Right foot of Prabhu was broken. His hands were also broken. Prabhu then told him (witness) about the persons who had given him beatings amongst whom Girdhari and Tulsi were also there. Prabhu told him that at the place where they were lying, Girdhari and Tulsi had given them beatings. Thereafter, police came and the injured were taken away. 8. Ranveer nephew of the deceased was examined as PW-4. He stated that he was residing in village Mundavara from childhood. On 1.4.2000 at about 2-3 in the afternoon, he was going to Talvriksha from Narayanpur in a Jeep. The Jeep was to come to Mundavara. After getting down from the Jeep, when he was going to Talvriksha on foot, near the temple of Peerji there was a fight going on. Prabhu and Raghuveer were being beaten by Gillu Ram, Lala, Man Singh, Yadram, Raghuveer and Bala Ram. They were being beaten by lathis. He got scared and therefore kept on standing at a distance. Accused after giving beatings to Prabhu and Raghuveer put them in a camel cart and took them to Mundavara. He also walked behind them. There is a path way in front of the house of Girdhari. It is that place where Prabhu and Raghuveer were taken out of the camel cart and were again beaten. Girdhari and one lady Tulsa had joined others in giving beatings to them. Whereas Girdhari was armed with a lahti, Tulsa was armed with an axe. When Matadeen had gone to them at the spot, he was watching all this from a distance of 150-200 yards. Girdhari and one lady Tulsa had joined others in giving beatings to them. Whereas Girdhari was armed with a lahti, Tulsa was armed with an axe. When Matadeen had gone to them at the spot, he was watching all this from a distance of 150-200 yards. From amongst those who had given beatings to Prabhu and Raghuveer were Lala, Gillu, Yadram and Man Singh who were present in court whereas he would not know names of rest of the three persons but would know them from face. Accused Kailash was not present at the scene of occurrence. There was dispute between Prabhu and Raghuveer with Jats with regard to land and it was for that reason that the accused had given beatings to Prabhu and Raghuveer. 9. There is no need to give further details of the prosecution evidence as conviction of the appellants is based upon testimony of PW-3 Matadeen and PW-4 Ranveer. Suffice is it to mention, however, that the investigating officer appeared and deposed with regard to the steps that he had taken up to filing of the challan. 10. The appellants when examined u/s. 313 Cr.P.C. completely denied their involvement and presence at the scene of occurrence. They, however, led no evidence, in defence. 11. Mr. Alok Sharma, learned counsel representing appellants No. 1 and 2 as also Mr. Biri Singh, learned counsel who represents appellants No. 3 and 4 commonly contend that Ranveer ( PW-4) alone has been held to be the eye witness by the learned Trial Judge. His presence at the scene of occurrence is, however, doubtful as he was only a chance witness. He was closely related to deceased (being nephew) and for that reason as well, no reliance should be placed upon his testimony. The witness has further been dubbed to be wholly unreliable and on that count as well, it is urged that the statement made by him should be discarded. Mr. Biri Singh also contends that the charge framed in this case was wholly defective and on that count as well, the entire prosecution case deserves to be rejected. 12. We have heard learned counsel appearing for the parties and with their assistance, examined records of the case. 13. Mr. Biri Singh also contends that the charge framed in this case was wholly defective and on that count as well, the entire prosecution case deserves to be rejected. 12. We have heard learned counsel appearing for the parties and with their assistance, examined records of the case. 13. Dealing with the first contention of the learned counsel representing the appellants, it would be seen that it is a case where two brothers were given beatings at two different places. On first occasion, it was on the outskirts of village that they were confronted with the appellants and given beating. They were put in a camel cart and taken to Mundawara and once again given beatings in front of the house of Girdhari Rabari. Both the places where Prabhu and Raghvueer were belaboured happened to be common places. Anyone and everyone had an access to reach these common places. Ranveer ( PW-4) cannot thus be said to be a chance witness. Such a person who might have nothing to do at a particular place and yet happen to be there is normally styled as a chance witness but if in his daily routine or normal routine he may happen to be at the common place open to all and sundry, he cannot be stated to be a chance witness. Be that as it may, Ranveer ( PW-4) categorically stated that on the day of occurrence, he was going to Talvriksha from Narayanpur in the Jeep and the Jeep was to come to Mundawara. It was after getting down from the jeep and while going to Talvriksha on foot that he noticed a fight going on near the temple of Peerji. His relations were being beaten which would naturally attract him. The defence elicited nothing from this witness which might show that he had not gone to Naraynpur on the date of occurrence. He was in fact not questioned as to for what purpose he had gone to Narayanpur even though questions were put to him with regard to the owner of the Jeep and other passengers sitting with him. In so far as the contention of the learned counsel that he is related to the deceased is concerned, it is too well settled proposition of law by now that simply because a witness is related to the deceased, his evidence cannot be discarded. In so far as the contention of the learned counsel that he is related to the deceased is concerned, it is too well settled proposition of law by now that simply because a witness is related to the deceased, his evidence cannot be discarded. The court, in such a situation, is at the most put to a guard to scrutinise the evidence of related witnesses with greater deal of care and caution. That test would certainly be applied while evaluating statement made by PW-4 Ranveer. Nothing at all has been pointed out that might remotely suggest that PW-4 Ranveer is wholly unreliable witness but for to mention that if he could involve some innocent persons who were not found to have participated in the crime, even by the police, he has to be termed a wholly unreliable witness. The maxim 'Falsus in uno falsus in omnibus' is not applicable in this country as held by string of judicial precedents. The court indeed has to, with regard to such witness, separate grain from the chaff and that test too would be applied while evaluating deposition made by PW-4 Ranveer. PW-3 Matadeen, it may be recalled, had seen Prabhu and Raghuveer in an injured condition in front of the houses of Rebaris. he is an independent witness. He took pity upon Prabhu and Raghuveer who were gasping for breath and were in dire need of water. When all villagers out of fear did not come forward to help them this witness PW-3. Matadeen lent a helping hand by giving them water. It was natural for him to have enquired from them as to what had happened to them. On enquiries so made, he was told that they were given beatings near the temple of Peerji on the road. He was also told by them that the assailants were Man Singh, Yadram, Raghuveer, Bala and Lala. Prabhu and Raghuveer had also told him that Girdhari and Tulsi had also given beatings to them. Raghuveer, Bala, Girdhari and Tulsi are not the appellants in this case. Surely, therefore, we are not concerned with them. Evidence of PW-3 Matadeen in our considered view would be relevant as forming part of same transaction by virtue of provisions contained in Section of the Evidence Act which reads as follows : "6. Raghuveer, Bala, Girdhari and Tulsi are not the appellants in this case. Surely, therefore, we are not concerned with them. Evidence of PW-3 Matadeen in our considered view would be relevant as forming part of same transaction by virtue of provisions contained in Section of the Evidence Act which reads as follows : "6. Relevancy of facts forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." 14. Illustration (a) reproduced below, in our view, would be straightway attracted to the facts of the present case. "(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact." 15. The injured making statement to Matadeen ( PW-3) would also partake the character of an oral dying declaration. 16. Hearsay evidence is not admissible in evidence but statement of relevant fact made by a person who is dead or cannot be found is relevant. may be written or verbal, which may relate to cause of death as would be clearly made out from Section (1) of Evidence Act reproduced below. "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases : (1) When it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) to (8)...." 17. The statements made by Prabhu and Raghuveer to PW-3 Matadeen would be relevant and thus admissible in view of provisions contained in Section of the Evidence Act. 18. Considering PW-4 Ranveer to be interested in success of the prosecution case being closely related to the deceased brothers and the fact that he named others also who were not either tried or were acquitted and that the court has to test correctness of his evidence with greater deal of care and caution and further that even PW-3 Matadeen also named some persons who were either not tried or were acquitted, the safest course in this case would be to separate those accused/appellants whose names might have been commonly stated by PW-3 Matadeen and PW-4 Ranveer. Examined thus, it would emerge that Lalaram, Manaram and Yadram have been commonly named by these two witnesses. Participation in crime by these three persons is corroborated by the statements of two witnesses ( PW-3 and PW-4) inter se. As a consequence of applying the above test, others shall have to be given benefit of doubt, whereas other three persons Mana Ram, Lala Ram and Yadram, in our considered view, shall be convicted for offence of murdering two brothers Prabhu and Raghvueer with common intention of each other. 19. We find no merit in the contention of Mr. Biri Singh that the charge framed in this case is defective as it was mentioned therein that death was caused in jungle of village Mundawara where Prabhu and Raghuveer were first given beatings whereas the prosecution story is that after having been given beatings there at, they were taken to a different place and were given. beatings where they died. Learned Trial judge first mentioned its the charge that on 1.4.2000 at about 4-5 in the evening, appellants with others with a common object had given beatings to Prabhu and Raghuveer in the jungle of village Mundawara and in the manner aforesaid committed offence u/s. 147/148 IPC. beatings where they died. Learned Trial judge first mentioned its the charge that on 1.4.2000 at about 4-5 in the evening, appellants with others with a common object had given beatings to Prabhu and Raghuveer in the jungle of village Mundawara and in the manner aforesaid committed offence u/s. 147/148 IPC. It was then mentioned that on the same date, time and place, the two brothers were given beatings and killed and in the manner aforesaid, the appellants with others had committed offence u/s. 302/149 IPC. There is indeed some defect in framing of the charge as the two brothers were taken in a camel cart and were ultimately killed in front of the house of Rebaris. However, we are of the view that this defect in framing of the charge cannot be fatal to the prosecution case as no prejudice has been caused to the appellants. It may be recalled that the defence projected by them emanating from the statements made u/s. 313 Cr.P.C. is that they were innocent and were not even present at the scene of occurrence. It is too well settled that defect in framing of charge which might not have prejudiced the case of accused in any manner, whatsoever, cannot be fatal to the prosecution case. 20. Before we may part with this order, we could like to mention that at one time, there was dispute with regard to the identity of Mana Ram inasmuch PW-3 Matadeen had mentioned his name as Man Singh. It was clarified during the course of arguments that Manaram is also known as Man Singh as in the trial court there was a defence counsel who was representing this accused with the name of Man Singh. 21. In view of the discussion made above, this appeal is partly allowed. The order of conviction and sentence dated 16.7.2001 passed by the learned Additional Sessions Judge (Fast Track), Alwar against appellant Giluda @ Gillu is set aside and he is acquitted of the charges framed against him. He shall be released forthwith if not required in any other case. Appeal filed on behalf of other three appellants (1) Lala Ram, (2) Manaram and (4) Yadram is dismissed being devoid of merit.Appeal disposed of. *******