JUDGMENT 1. - Bhima @ Bhimraj, Ramesh Chand, Gangaram and Kalu Singh, the appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) No. 2 Jhalawar, who vide judgment dated June 26, 2002 found the appellants guilty and convicted and sentenced them as under : Bhima @ Bhimraj, Ramesh Chand and Gangaram : U/s. 302 IPC : Each to suffer imprisonment for life and fine of As. 5000/-, in default to further suffer simple imprisonment for two months. U/s. 450 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 10000/-, in default to further suffer simple imprisonment for three months. Kalu Singh : U/s. 302/34 IPC: To suffer imprisonment for life and fine of As. 10000/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that informant Ramesh Chandra (Pw.1) on August 18, 2000 submitted a written report at Police Station Dag stating therein that on the said day around 7.30 PM while he and his father Parasmal (since deceased) were sitting in his shop. Bhima Harijan and Gangaram Balai came armed with sword, dragged his father outside the shop and expressed that they would liquidate Parasmal. Bhima then inflicted sword blow on the head, mouth and stomach of his father, while Gangaram caused injury with sword on the shoulder. When Parasmal fell down Bhima again gave a sword blow on the throat. On the backside of the shop near the channel gate two persons armed with swords were standing. On hearing hue and cry many persons gathered and the assailants fled away. On that report a case under sections 302, 452/34 and 120B IPC was registered and investigation commenced. Dead body of Parasmal was subjected to autopsy, necessary memos were drawn, statement of witnesses were recorded, the appellants were arrested and on completion of investigation charge sheet was filed. In due course the case camp up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Jhalawar. Charges under sections 1208, 452, 302 alternatively 302/34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. One witness in defence was examined. Charges under sections 1208, 452, 302 alternatively 302/34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard the contentions raised before us and with the assistance of learned counsel perused the record. 4. Death of Parasmal was concededly homicidal in nature. As per post mortem report (Ex.P-5) following ante mortem injuries were found on the dead body : 1. Head & Neck a. Incised wound 6: x 1"xbone deep on Lt. side of occipital region extended upto just on the back of the Lt. ear with flap of 4" b. Incised wound 8" x 1"x bone deep on Lt. parietal region post end of continuing with injury No. 1 on Post. side within a flap of 3" width. c. Incised flap wound 4"x1.5"xbone deep horizontal on Rt. fronto parietal region. d. Two incised wound 2.7"x3"xbone deep and 1.8" x.3"xbone deep on the middle of frontal area direction antero posterior with ant. and deeper. e. Incised wound with flap 4.5"x1"xbone deep with through & through of buced cavity anteriorly continuing with the angel of mouth on Lt. side this injury cut the upper It. jaw obliquely with teeth. Injury is mainly situated on Lt. check below the zygomatic bone. f. Incised wound 2.6"x.6"xbone deep on Rt. side of chin antero posteriorly. g. An incised wound with loss of skin flap & chipping of bone 2.9" x 2.6" x bone deep on upper part of At. side of occipital region. h. Incised wound with flap 4.3"x1"xtrachea deep on the supra sternel notch. 2. Chest a. Incised wound (three in number) size 1"x.6"xbone deep, 07" x 3" x l' x 2" x l' x bone deep present on Rt. side of front of chest over the posterial region. b. Incised wound 8.7" x 2.1"xbone deep present on the At. shoulder which result into partial amputation of Rt. shoulder joint. This injury result into of acromian process of At. scapula. c. Incised wound 1.6" x .5"xbone deep present over xiphocid process of sternum 3. side of front of chest over the posterial region. b. Incised wound 8.7" x 2.1"xbone deep present on the At. shoulder which result into partial amputation of Rt. shoulder joint. This injury result into of acromian process of At. scapula. c. Incised wound 1.6" x .5"xbone deep present over xiphocid process of sternum 3. Others : a. Incised wound 5.3" x 1.7"xbone deep present on middle one third of enterior surface of It. forearm. This injury results into the of. ulna shaft. b. Incised wound 3" x 1" x bone deep present on the Lt. hand this injury result into the amputation of little & ring finger of Lt. hand at proximal phalax level. This finger attached with Small skin tag. c. Chopped incised injury 1/2" x 1/2" muscle deep present on the dorsal surface of At. index finger (distal phalanx). The cause of death was shock due to massive internal hemorrhage following multiple injuries. 5. The prosecution case is founded on the testimony of Ramesh Chandra (Pw.1). In his deposition Ramesh Chandra Stated that he owned a shop of grocery at Bus stand Dag. On the day of incident while he and his father were sitting in the shop. Gangaram, Bhima and Ramesh armed with sword entered the shop and caused injuries by sword on head, shoulder, mother and hands of his father as a result of which he fell down in a pool of blood. First injury was caused on head of his father by Bhima, second on the shoulder by Gangaram, third on the stomach by Ramesh and fourth by Ramesh on the left hand of his father. When his brother, mother and others came the accused shouted that Sarpanch Sahab work is complete. Sarpanch (Kalu Singh) was standing at the channel gate armed with sword. 6. Learned counsel for the appellant criticised the impugned judgment and canvassed that the witnesses who had been relied upon by the learned trial court were the close relatives of the deceased and because of their unnatural conduct i.e. they did not make effort to save the deceased, their presence, at the time of incident was doubtful. Learned counsel took us through the contradictions in the evidence of prosecution witnesses and urged that no reliance could be placed on such shattered testimony. Learned counsel took us through the contradictions in the evidence of prosecution witnesses and urged that no reliance could be placed on such shattered testimony. Per contra learned Public Prosecutor supported the impugned judgment and contended that presence of eye witness at the time of incident is established and in his cross examination nothing favourable to the appellants could be extricated and only because of the fact that he is close relatives of the deceased, his testimony could not be discarded. 7. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, is not of any consequence. Eye witnesses account would require a careful independent assessment and evaluation for its credibility. The evidence must be tested for its inherent consistency and inherent probability of the story. 8. Their Lordships of the Supreme Court in Din Dayal v. Raj Kumar @ Raju, AIR 1999 SC 537 held as under : (Para 4) "Witness Din Dayal had accompanied the deceased to the hospital but after reaching there he did not disclose the name of the accused to the Police Constable who was on duty even though he disclosed other facts regarding the incident. This circumstance has been relied upon by the High Court together with some other reasons for doubting truthfulness of the evidence of this witness. The High Court has also referred to the improvements made by Din Dayal and those improvements clearly indicate that they were deliberately made with a view to make the presence of other witnesses acceptable. Having gone through the evidence we find that the view taken by the High Court is not unreasonable and no interference is called for by this Court." 9. In Shankar Lal v. State of Rajasthan, 2004 (2) WLC (SC) Cri. 284 : AIR 2004 SC 3559 the Hon'ble Supreme Court held as under : (Para 5) "Even according to the prosecution to only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village upli for some work. From there he came back by bus at about 11 O'clock. If we do so then we notice that on the date of incident he had gone to a village upli for some work. From there he came back by bus at about 11 O'clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW-5 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 and 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Kyali Ram and told him about the incident in question but PW-2 supposedly told him that he already come to know of the incident from PW- 14. The prosecution has not found how PW-14 came to know of the incident. It is also to be noticed from his cross examination that when he met PW-2 Kyali Ram and told him about the incident in question but PW-2 supposedly told him that he already come to know of the incident from PW- 14. The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice that he is purely a chance witness whose presence at the place of incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Kyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. On 5.4.1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 Courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bail bonds shall stand discharged." 10. State of Punjab v. Sucha Singh, 2003(1) WLC (SC) Cri. 367 : 2003 Cri.L.J. 1210 was the case where accused alleged to have killed deceased to avenge murder of his nephew. Eye witness father of deceased not tried to rescue his son, who sustained as many as 24 injuries. Such conduct of witness make his presence doubtful. Other eye witness did not own land in village and his presence at the place of occurrence was held doubtful. Contradiction between occular and medical evidence as to number of injuries on deceased also make their presence doubtful. Such conduct of witness make his presence doubtful. Other eye witness did not own land in village and his presence at the place of occurrence was held doubtful. Contradiction between occular and medical evidence as to number of injuries on deceased also make their presence doubtful. It was indicated as under : (Para 10) "PW-4 in his testimony before the Court stated that the accused- also caused more injuries with their respective weapons in Sarabjit Singh. This witness was confronted with his statement recorded under section 161 Cr.P.C. where he has not stated. Apart from discrepancy between ocular and medical evidence with regard to the injuries sustained by the deceased Sarabjit Singh on his body, the fact that the deceased suffered as many as 24 bodily injuries makes all the more doubtful the presence of PWs 4 and 5 at the place or occurrence. Inflicting 24 injuries on the body of deceased by the three accused persons would require a considerable amount of time. This itself suggests that the accused had sufficient time at their disposal to commit the crime. Any father, worth the name, would not remain a mute spectator when his son is being inflicted as many as 24 injuries at his very nose." 11. In Krishna Ram v. State of Rajasthan, AIR 1993 SC 1386 the Hon'ble Supreme Court held as under : (Para 4) "We have gone through the evidence of the eye witnesses. No doubt Pws 1, 2, 3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex.P-1 all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noticed already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between PW. 6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye- witness consistently to this effect. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye- witness consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eye witnesses. The evidence adduced in defence is not at all material and the courts below have rightly rejected the same. The trial court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly." 12. In Chanan Singh v. State of Haryana, AIR 1971 SC 1554 the evidence of sole witness to the occurrence was disbelieved on ground of his abnormal conduct after the occurrence. It was held : (Para 13) "The conduct of the witness in running away from the place of occurrence even though he was not chased or threatened by any one of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal." 13. In Ram Lakhan v. State of U.P., AIR 1996 SC 3429 held that the evidence of close relatives of deceased is not liable to be rejected on ground of interested witnesses. What is necessary is that Court should scrutinise evidence of such witness carefully. 14. In Baitullah v. State of U.P., AIR 1997 SC 3946 Hon'ble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons. 15. In Tapubha Bhagwanji v. State of Gujarat, 2002 (2) WLC (SC) Cri. 593 : AIR 2002 SC 2794 the Apex Court held as under : (Para 12) "The witnesses examined on behalf of the prosecution are witnesses who is normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. 593 : AIR 2002 SC 2794 the Apex Court held as under : (Para 12) "The witnesses examined on behalf of the prosecution are witnesses who is normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper." 16. In Angnoo v. State of U.P., AIR 1971 SC 296 the Apex court held that the fact of relationship would add to value of his evidence because he would be interested in getting the real cw.prit, rather than innocent persons punished. 17. In Bolineedi Vekataramaiah v. State of Andhra Pradesh, AIR 1994 SC 76 the Apex Court considered the case where there was bitter enmity between prosecution party and accused party group of persons chased deceased and inflicted injuries. THe presence of witnesses at place of occurrence was not found doubtful. It was held that being interested witnesses their evidence was subjected to greater scrutiny. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific overt acts had been attributed consistently by all witnesses were convicted. The plea that some of the accused were acquitted, the same evidence cannot be accepted against other accused, was not found tenable. 18. In Suraj Pal v. State of U.P., AIR 1994 SC 748 the Apex Court found that the medical evidence fully establish the injury to eye witnesses, eye witnesses gave consistent version and it was held that their evidence cannot be discarded on ground that they were interested witnesses or that co-accused was acquitted on self-same evidence or that there were minor variations. 19. In Balkar Singh v. State of Punjab, AIR 1994 SC 1133 where the witness deposed against accused but he did not state about the weapon used, particulars of injuries and no overt act of violence proved against accused. The Apex Court held that mere presence of accused on the spot cannot make him liable for the offence. 20. 19. In Balkar Singh v. State of Punjab, AIR 1994 SC 1133 where the witness deposed against accused but he did not state about the weapon used, particulars of injuries and no overt act of violence proved against accused. The Apex Court held that mere presence of accused on the spot cannot make him liable for the offence. 20. In Ram Gopal v. State of Rajasthan, RLW 1999 (1) SC 58 where the venue of the incident and time was such that no independent witness could be expected to be present the evidence of related witnesses was considered.The fact of absence of details of occurrence in FIR, which are consistent with the detailed of the eye witnesses in the evidence, was considered and held that the FIR cannot be rejected. 21. In Hukam Singh v. State of Rajasthan, 2000 (4) Crimes 23 the Apex Court held that it is the discretion of Public Prosecutor not to examine any certain witness if he got reliable information that a category of witness would not support prosecution version and he is free to skip that witness. 22. In Suresh Raj v. State of Bihar, JT 2000 (4) SC 12 where name of assailant was not disclosed in the information nor the same of informant was disclosed and the absence of injuries on person of eye witnesses was considered and held that the conduct of three eye witnesses was highly unbelievable and their presence is doubtful. Investigation was found tainted and this was because of enmity. 23. In Kartik Malhar v. State of Bihar, (1995) 8 JT (SC) 425 , the Apex Court held that "we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness Speaking through VIVIAN BOSE J., the Court observed para 25 of AIR 1953 SC). "We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. "We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur." 24. Bearing the principles indicated in the afore quoted judicial pronouncements, we proceed to consider the evidence adduced at the trial. Since Ramesh Chandra is the close relative of the deceased, we carefully scrutinised his testimony. We do not see any good reason to hold that his evidence is untrustworthy or unreliable as nothing has been brought on record either in cross examination of this witness or in any other evidence to show any reason as to why he would falsely implicate the accused in this case. While he was sitting with his father in the shop, the deceased was attacked by the accused named in the FIR. As already noticed, Ramesh Chand in the FIR named only appellants Bhima and Ganga Ram and stated that two other persons were standing armed with swords back side of the shops. Subsequently at the trial Ramesh Chand tried to implicate Ramesh Chand and Kalu Singh. 25. Having analysed the evidence of Ramesh Chandra from the point of view of trustworthiness, we find his presence at the shop natural at the time of incident. Even if it is assumed that he is close relative of the deceased, his evidence is not liable to be discarded on that score because it otherwise inspires confidence. He had no interest in protecting the real culprit and falsely implicating the appellants. In the case of interested witnesses the rule of scrutiny is merely a rule of caution rather than a rule of law. Testimony of the eye witnesses, who are the natural witnesses of the occurrence and when one would expect to have seen the occurrence, cannot be doubted only because they happen to be relatives of the deceased. We find the evidence of Ramesh Chand reliable and trustworthy qua the appellants Bhima and Ganga Ram only. Testimony of the eye witnesses, who are the natural witnesses of the occurrence and when one would expect to have seen the occurrence, cannot be doubted only because they happen to be relatives of the deceased. We find the evidence of Ramesh Chand reliable and trustworthy qua the appellants Bhima and Ganga Ram only. Ocular evidence narrated by Ramesh Chand gets corroboration from post mortem report and recovery of swords at the instance of appellants Bhima and Ganga Ram. We, are therefore, of the considered opinion that the charges under sections 302 and 450 IPC are established against the appellants Bhima @ Bhimraj and Gangaram beyond reasonable doubt. However, we do not find the prosecution evidence truthful against the appellants Ramesh Chand and Kalu Singh since they were not named in the FIR. An attempt was made subsequently to implicate them. We thus grant benefit of doubt to appellants Ramesh Chand and Kalu Singh. 26. As a result of above discussion, we dispose of instant appeal in the following terms : (i) We do not find any merit in the appeal of appellants Bhima @ Bhimraj and Ganga Ram and accordingly their appeal stands dismissed. The finding of conviction and sentence rendered against them vide impugned judgment is confirmed. (ii) We allow the appeal of appellants Ramesh Chand and Kalu Singh. We acquit the appellants Ramesh Chand and Kalu Singh from the respective charges under sections 302, 450 and 302/34 IPC. Appellants Ramesh Chand and Kalu Singh are on bail, they need not surrender and their bail bonds stand discharged.Appeal of R & K Allowed-Appeal of B And G Dismissed. *******