JUDGMENT 1. - Cordoned by axes, Dhanna Lal, a milk vendor, became helpless, sustained injuries and breathed last on March 7, 2001. As many as eight persons were put to trial for having committed murder of Dhanna Lal before the learned Additional Sessions Judge (Fast Track) No. 5 Bundi, who vide judgment dated October 30, 2003 convicted and sentenced six appellants as under- Anandi Lal: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for three months. Sita Ram, Babu Lal, Prabhu Lal, Chhotu Lal and Gopal @ Ram Gopal: U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for three months. Anandi Lal, Sita Ram, Babu Lal, Prabhu Lal, Chhotu Lal and Gopal @ Ram Gopal: U/s. 148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. U/s. 147 IPC : Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on March 7, 2001 informant Bhanwar Lal (Pw. 1) handed over a written report (Ex.P-1) at Khatkad Hospital to SHO Police Station Gandoli to the effect that on the said day around 9-10 AM while Dhanna Lal was going back to his house after selling milk, he was wayled on the Raithal Road by Anandi Lal, Ganesh, Babu, Sita Ram @ Chhitya, Prabhu, Gopal, Chhota. All the assailants were armed with Gandasi, Jodla and axes. Anandi Lal inflicted axe-blow on the head of Dhanna Lal. Whereas Babu and Chhotu gave blows with Gandasi on his head and back. After Dhanna Lal fell down, all of them indiscriminately caused injuries on his person. Danna Lal was removed to the hospital where he was declared dead. On that report a case under Sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.5 Bundi. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.5 Bundi. Charges under Sections 147, 148, 302 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Death of Dhanna Lal was concededly homicidal in nature. As per Post Mortem report (Ex.P-24) following ante mortem injuries were found on the dead body- 1. Bruise with hematoma 11 x 6cm at Parietal region of right side of skull reddish hematoma present under fracture (brain matter) of parietal bone on right side present a lot of blood collected at below skull on side of post. 2. Incised wound with sharp margin 3 x 1 x brain matter deep into skull vault clotted blood present at whole left side of skull after wound there is sharping margin by white fragments of blood present and brain matter coming out (present outside the wound) membranes and Brain of left (wound lobe) come down. 3. Incised wound clotted blood present after wound there is sharp margin 11/2 x 1/2 x 1/2 at 11/2" below injury No. 2 at parietal region. There is depressed fraction also present at below the wound there is multiple fragments of temple bone. 4. Incised wound 2.5 x 1 x ,5cm at post amicular region on left side. Clotted blood with sharp margin. In the opinion of Dr. Manoj Kumar Jain (Pw.12), who performed autopsy on the dead body, the cause of death was head injury. 4. The prosecution case rests on the ocular evidence of Bhanwar Lal (Pw.1), Ramesh (Pw.2) and Sunita (Pw.7), who have been relied upon by the trial court for the purpose of recording finding of guilt against the appellants. 5. Mr. Manoj Kumar Jain (Pw.12), who performed autopsy on the dead body, the cause of death was head injury. 4. The prosecution case rests on the ocular evidence of Bhanwar Lal (Pw.1), Ramesh (Pw.2) and Sunita (Pw.7), who have been relied upon by the trial court for the purpose of recording finding of guilt against the appellants. 5. Mr. A.K. Gupta, learned counsel for the appellants vehemently attacked the testimony of all the three witnesses and urged that Bhanwar Lal being brother in law (sala) of the deceased, Ramesh being cousin (son of Maternal uncle of deceased) and Sunita, being the daughter could not have been relied upon since they were the chance witnesses and had interest in the success of prosecution case. According to learned counsel it is highly doubtful if they present at the time of incident. It is also submitted that the investigation as also the conduct of the prosecution at the trial, suffers from certain serious infirmities, the benefit where of should not be denied to the appellants. It was also submitted that the trial court has spun out a case for the prosecution which is much in departure from the testimony of witnesses and deserves to be discarded for this reason. 6. Per contra, Mr. B.N. Sandhu, learned Public Prosecutor, and Mr. R.S. Agrawal, learned counsel for the complainant supported the impugned judgment and urged that the appellants have rightly been convicted and sentenced. 7. In the light of submissions so made we would scrutinise the testimony of three eye witnesses. Bhanwar Lal (Pw.1) stated that he had seen eight accused inflicting injuries on the person of Dhanna Lal. In his cross examination he admitted that he was a resident of village Rehana and had come on the date of incident to village Ajeta because his agricultural land situated there. He also admitted that Dhanna Lal was his cousin brother. According to him the incident occurred at a distance of sixty steps from the residential house of Dhanna Lal. Ramesh (Pw.2), another cousin brother of Dhanna Lal, was also a resident of village Rehana and came on the date of incident to village Ajeta because he also had agricultural land there. He stated in his examination in chief that when he reached at the spot the accused already proceeded after given beating to Dhanna Lal. Ramesh (Pw.2), another cousin brother of Dhanna Lal, was also a resident of village Rehana and came on the date of incident to village Ajeta because he also had agricultural land there. He stated in his examination in chief that when he reached at the spot the accused already proceeded after given beating to Dhanna Lal. Sunita (Pw.7) in her deposition stated that on March 7, 2001 around 9.30 AM while she was going to school she saw his father Dhanna Lal coming from the turn of Raithal Road after selling the milk. Suddenly Anandi Lal, Brijesh, Babu Lal, Chhotu Lal, Ganesh, Gopal Lal, Sita Ram and Prabhu Lal surrounded her father. Anandi Lal then inflicted blow with axe on his head and Brijesh gave another axe-blow again on the head as a result of which her father fell down. All the accused then inflicted injuries on his person indiscriminately. Hearing her hue and cry Bhanwar Lal and Ramesh rushed to the spot. Her Mama Bhanwar Lal then wrapped her chunni on the head of her father. In her cross examination she explained the reason to go to the school on Idul-Zuha holiday thus- " ;g ckr lgh gS fd ml fnu Ldwy esa NqV~Vh Fkh fdUrq mlls vxys fnu gekjs ekLVj th us ;g dgk Fkk fd pkan fudysxk rks NqV~Vh jgsxh] blfy, eSa Ldwy xbZ FkhA " She further stated that she had seen the incident from a distance of fifteen feet. Despite searching cross examination testimony of Sunita could not be shattered. The appellants however, in order to establish that on March 9, 2001 was Holiday in the school on the occasion of ‘Idul-Zuha’ examined Ibrahim Khilzi (Dw.2) as defence witness, who stated in his cross examination that Holiday of Idul-Zuha depends on he visibility of Moon and thus supported the version narrated by Sunita in respect of Idul-Zuha holiday. 8. Strangely, Dr. Manoj Kumar Jain (Pw.12) and Dr.O.P. Verma (Pw.9), who performed post mortem on the dead body, stated in the cross examination that three incised wounds and one bruise on the head of deceased could be caused by a single blow. 9. We also notice that on the basis of disclosure statement (Ex.P-34) of appellant Anandi Lal axe got recovered vide memo Ex.P-13. 10. 9. We also notice that on the basis of disclosure statement (Ex.P-34) of appellant Anandi Lal axe got recovered vide memo Ex.P-13. 10. A close scrutiny of the evidence of Bhanwar Lal (Pw.1) and Ramesh i (Pw.2) we find that they were not present at the time of incident and reached at the spot afterwards. However on scanning the testimony of Sunita (Pw.7) with broad reference to its trustworthiness and truthfulness by a judicial scrutiny we find her presence at the time of occurrence highly natural and on comprehensive appreciation of all vital features of the case and with reference to reasonable probabilities of the case we are of the view that her testimony does inspire confidence. The contradictions and embellishments referred to by learned counsel for the appellants do not go into the root of the matter and having separated the grain from the chaff we find her testimony otherwise trustworthy. We find truth in the explanation of Sunita that her teacher asked her that the vacation depended on the visibility of Moon, she proceeded to the school. Ibrahim Khilzi (Dw.2), Head Master of the school, substantiated the explanation given by Sunita about the holiday. We thus find that Sunita have convincing reason about her presence at the time of incident. 11. Factual situation emerges from the material on record may be summarised as under- (i) The deceased was assaulted on the turn of Raithal Road, which was very near the house of deceased. (ii) One blow from axe attributed to Anandi Lal, caused three incised wounds on the head of deceased. (iii) Sunita, daughter of the deceased, happened to be near the place of incident because she was going to school. (iv) Chunni of Sunita was found wrapped on the head of deceased. (v) Axe got recovered at the instance of Anandi Lal. 12. It is well settled that even the testimony of chance witness may be acted upon. In Ismail v. Momin (AIR 1941 Privi Council 11 ) it was held that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. 13. In Ismail v. Momin (AIR 1941 Privi Council 11 ) it was held that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. 13. Even truthful version of occurrence given by kith and kin of the deceased may be relied upon as was held in Krishna Ram v. State of Rajasthan ( AIR 1993 SC 1386 ) by the Hon’ble Supreme Court- (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 noted 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 t participation of the appellants are concerned there are statements of the eye-witnesses 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." 14. In Ram Lakhan v. State of UP (AIR 1996 SC 3249) 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. 15. We see absolutely no merits in these appeals. The appeals are dismissed accordingly." 14. In Ram Lakhan v. State of UP (AIR 1996 SC 3249) 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. 15. In Baitullah v. State of UP ( 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. 16. 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 in 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." 17. In Angnoo v. State of UP ( 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 culprit, rather than innocent persons, punished. 18. In Bolineedi Venkataramaiah 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 over 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. 19. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific over 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. 19. In Suraj Pal v. State of UP ( 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. 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 narration of the eye witnesses in the evidence, was considered and held that the FIR cannot be rejected. 21. 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., 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. 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 no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur." 22. In Thangaiya v. State of Tamil Nadu (2005(1) WLC (SC) Cri. If it is grounded on the reason that they are closely related to the deceased we are unable to concur." 22. In Thangaiya v. State of Tamil Nadu (2005(1) WLC (SC) Cri. 227 : 2005 Cri.L.J. 684) the Apex Court indicated as under- "In a murder trial by describing the independent witnesses as ‘chance witnesses’ it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful Murders are not committed with previous notice to witnesses: soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. In instant case, the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. Therefore, there is no substance in the plea that evidence of independent witness which is clear and cogent is to be discarded." 23. In the instant case even if we reject the testimony of Bhanwar Lal and Ramesh, the conviction can be founded on the sole testimony of Sunita, who is a witness of sterling worth. Law does not insist on plurality of evidence. The evidence is to be weighed and not counted. Section 134 of the Evidence Act lays down in clear terms that no particular number of witnesses is necessary for the proof of any fact 24. We do not agree with the alternative submission of learned counsel for the appellants that since one blow was caused on the head of the deceased, offence under Section 302 IPC is not made out. We do not agree with the alternative submission of learned counsel for the appellants that since one blow was caused on the head of the deceased, offence under Section 302 IPC is not made out. When injury is struck on the head with a sharp edged instrument with such a force as to penetrate the brain, it seems that the only possible intention that can be 5 inferred as an intention to cause injure which the accused knew would be likely and, indeed, bound to cause death and the accused is liable to be convicted for the offence of murder under Section 302 IPC. In the instant case as already noticed that it was appellant Anandi Lal who inflicted axe-blow on the head of deceased with such force as to penetrate the brain. We thus find that all the requirements of clause thirdly of Section 300 IPC are fully satisfied and the offence committed by Anandi Lal is that of murder punishable under Section 302 IPC. We are however of the view, in the facts and circumstances of the case, that appellants Sita Ram, Babu Lal, Prabhu Lal, Chhotu Lal and Gopal @ Ram Gopal were possibly over implicated and the prosecution could not establish the guilt against them beyond reasonable doubt. Although injuries on the person of deceased were attributed to them, no corresponding injury was found in the autopsy report. 25. For these reasons, we direct as under- (i) Appeal of accused Anandi Lal being devoid of merit stands dismissed and his conviction and sentence under Sections 302 IPC are maintained. We however acquit him of the charges under Sections 147 and 148 IPC. (ii) Appeal of accused Sita Ram, Babu Lal, Prabhu Lal, Chhotu Lal and Gopal @ Ram Gopal is allowed and they stand acquitted of the charges under Sections 302/149, 148 and 147 IPC. These accused are on bail, they need not surrender and their bail bonds stand discharged. (iii) Impugned Judgment of learned Trial Judge stands modified as indicated above. Appeal of a Dismissed But of others allowed. *******