JUDGMENT : ( Per S.P.Kukday, J.) 1. Mukinda Bhaurao Lad, his wife Vasantabai, son Dyneshwar (Accused no.1), daughter Ratnamala (Accused no.3), nephews Jiwan Sitaram Lad (Accused no.5) and Dagadu Sitaram Lad (Accused no.6), were accused of committing murder of Ekanath Raghunath Lad and causing hurt to his brother Suresh, father Raghunath, mother Savitrabai, in prosecution of the common object of unlawful assembly. Mukinda expired during pendency of the trial, Vasantabai is absconding. Remaining accused faced trial in Sessions Case No. 99 of 2001 for the offences punishable under sections 147, 148, 302, 324, 323 and 504 r/w 149 of the Penal Code. By his order dated 8th April 2004, Ist Ad-hoc Sessions Judge, Ambajogai; convicted accused no. 1 for the offence punishable under section 302 of the Penal Code. He is sentenced to suffer imprisonment for life and to pay fine of Rupees 2000/-. Accused no. 5 is convicted of the offence punishable under section 324 of the Penal Code. He is sentenced to suffer R.I. for three years and to pay fine of Rupees 2000/-. Both sentences carry default stipulation for non payment of fine. Accused nos. 3 and 6 are acquitted of all the offences with which they were charged. As three appeals are filed against the same order of conviction and sentence, the appellants are referred to in their original capacity of accused to avoid confusion 2. Before entering in to the merits, we may notice relevant facts. Raghunath (P.W.7), his wife Savitrabai (P.W.8) and sons Suresh (P.W.1), Navnath (P.W.2), Eknath (deceased) were jointly cultivating their ancestral land at village Lade-Wadgao. Mukinda (since deceased) was his real brother. Vasantabai (absconding) is wife of Mukinda. Dyaneshwar (accused no.1) is their son and Ratnamala (accused no.3) is their daughter. Fulabai is sister of Savitrabai. Ratan (P.W. 3) is her husband. Jiwan (accused no.5) and Dagdu (accused no.6) are sons of the maternal uncle of Ratan. Civil Suits filed by Raghunath against his brother Mukinda in respect of ownership of agricultural land and right of pre-emption were pending in the civil court. On 17th June 2001 Raghunath his wife and sons were sowing jowar in their field survey number 168 known as "Banshet". At about 10.30 in the morning, all the accused came there. Mukinda sought explanation from Raghunath as to why he carried out sowing in the disputed land on the earlier day. On 17th June 2001 Raghunath his wife and sons were sowing jowar in their field survey number 168 known as "Banshet". At about 10.30 in the morning, all the accused came there. Mukinda sought explanation from Raghunath as to why he carried out sowing in the disputed land on the earlier day. While exchange of words between them was in progress, accused nos. 5 and 6 got angry and asked others to attack their opponents. As a result of the incitement all the accused mounted assault on Raghunath, his wife and sons. Mukinda dealt stick blow on the head and left palm of complainant Suresh, Jiwan hit him and Ekanath with bicycle chain. Dyaneshwar stabbed twice on the chest of Ekanath (deceased) with knife. He then dealt two knife blows on the back and another blow on the upper extremity of the nose of the complainant. Dagdu inflicted stick blows on the head and hand of Raghunath. Vasantabai and Ratnamala kicked and fisted Savitrabai. On hearing the cries for help, Ratan and Fulabai started coming towards them from the adjoining field. They saw the accused assaulting Raghunath and others. Before they could reach the spot, the assailants ran away. The injureds were then taken to S.R.T.R. hospital at Ambejogai. A.S.I. Shantling Lamture (P.W.11) who was on duty at the hospital chowky recorded complaint of Suresh (Ex. 94) officer Abdul Razzak (P.W.12) initially registered offence at Crime No. 0/ 2001 and directed A.S.I. Lamture to complete the formalities. Eknath succumbed to the injuries at about 1.45 p.m. A.S.I. Lamture thus held inquest (Ex.100) on the dead body and sent the dead body for postmortem. Dr. Kalidas Chavan performed postmortem. On the basis of the report of Suresh investigating officer A.P.I. Abdul Razzak registered offence against the accused at about 11.10 p.m. under sections 147, 148, 302, 324, 323, 504 r/w 149 of the Penal Code and took over the investigation. 3. On the next day, the investigating officer attached four wooden sticks, sample of blood stained soil and control soil under Panchanama of the scene of occurrence (Ex. 106) and arrested accused nos. 1 to 4. On 19th accused no. 1 made a confessional statement (Ex. 105) and produced knife concealed under a tree by the side of the river near the scene of the occurrence. The knife was attached under seizure memo (ex. 106). 106) and arrested accused nos. 1 to 4. On 19th accused no. 1 made a confessional statement (Ex. 105) and produced knife concealed under a tree by the side of the river near the scene of the occurrence. The knife was attached under seizure memo (ex. 106). Clothes of deceased produced by Savitrabai were attached under seizure memo (Ex. 101) All the articles attached during the course of the investigation were sent to the forensic Laboratory. Report of the Chemical Analyser (Ex. 103) disclosed that the knife was stained with the blood of the deceased. On the basis of the evidence collected during the investigation the accused came to be charge sheeted. 4. In support of its case, the prosecution examined 13 witnesses. Complainant Suresh, his father Ragunath, mother Savitrabai, and brother Navnath narrated prosecution version of the incident. These witnesses admitted that there was a dispute between them and Mukinda (since deceased) in respect of the agricultural land and that the litigation regarding this dispute was pending in the court. Evidence of these eye witnesses could not be dislodged on any material point during the cross examination. Their evidence received corroboration from Ratan (P.W. 3) who is near relative of Savitrabai as well as accused nos. 5 and 6. 5. Sheshrao Vairage (P.W.4) proved discovery of knife on the basis of confessional statement of accused no.1. Witnesses to the spot panchanama Manik Shep (P.W.5) and Jivan Kendre (P.W.6) turned hostile. 6. Dr. (Mrs.) Vandana Chousalkar (P.W.13) treated the injureds at S.R.T.R. hospital. She examined Suresh at about 12.10 p.m. She mentioned five injuries found on his person in injury certificate (Ex. 144). These injuries were: (1) Incised wound, right scapular area size 5 x 2 cms. x 3 cms, vertical. (2) Incised wound on left scapular area 5 cms. x 2 x 3 cms. vertical. (3) Incised wound, left parietal area, 4 cms x 2 x 1 cm vertical. (4) C.L.W. bridge of nose 1 cm x 0.5 cm. x 0.5 cm. (5) Abraded contusion on left hand dorsum laterally size 2 cm x 2 cm. . She examined Raghunath at about 12.30 p.m. Raghunath had suffered three injuries: (1) C.L.W. on scalp frontal region. 3x1x1 cms. vertical. (2) Contusion on left shoulder, 1 x 1 cm. (3) Contusion on left fore-arm just below 1 x 1 cm. . Dr.Chausalkar examined accused and issued injury certificates (Ex. Nos. . She examined Raghunath at about 12.30 p.m. Raghunath had suffered three injuries: (1) C.L.W. on scalp frontal region. 3x1x1 cms. vertical. (2) Contusion on left shoulder, 1 x 1 cm. (3) Contusion on left fore-arm just below 1 x 1 cm. . Dr.Chausalkar examined accused and issued injury certificates (Ex. Nos. 145 - 148). Accused no. 1 had sustained following injuries: (1) C.L.W. left parietal area 4 x 2 x 1 cm., vertical. Simple in nature. (2) Contusion on left fore-arm 2 x 2 cms, grievous in nature. It was fracture. (3) Contusion on right fore-arm 1 x 1 cm. 4th injury. (4) contusion over left mid axillary area. 4 x 2 x 1 cm., vertical. (5) Contusion just above knee, 1 x 1 cm. . Accused no. 2 had suffered following injuries: (1) C.L.W., Left Parieto-occipital area, 3 cm x 1 cm x 1 cm, vertical. simple in nature. (2) C.L.W., Right Parieto-occipital area, 3 cm x 1 cm x 1 cm vertical. Simple in nature. (3) C.L.W., frontal region, 5 cm x 2 cm x 1 cm, vertical. Simple in nature. (4) Contusion, right shoulder, 1 cm x 1 cm, simple in nature. . Accused no. 3 had suffered following injuries: "(1) Abrasion over left little finger, 1 cm. simple. (2) Abraded contusion over right wrist, dorsam, 2 x 5 x 2.5 cms., It was grievous injury, as it was fracture. (3) Abraded contusion over right fore-arm middle one third. 2 x 2 cms. It was simple." . Accused no. 4 Mukinda (since deceased) had suffered following injuries: "(1) C.L.W., right parietal area, 4 cm x 2 cm x 1 cm, vertical, simple in nature. (2) C.L.W., left parietal area, (10) 4 cm x 1 cm x 1 cm, vertical, simple in nature. (3) Contusion, forearm 1 cm x 1 cm, simple in nature. (4) Contusion, left hand (dorsem) laterally, 2 cm x 2 cm, grievous. (5) Contusion, 4th finger (left), 0.5 cm x 0.5 cm, grievous. (6) Contusion, right shoulder , 3 cm x 3 cm, grievous. " . Autopsy surgeon Dr. Kalidas Chavan performed the postmortem. The deceased had suffered five external injuries 1) Stab injury on left side of chest. 15 cms. (5) Contusion, 4th finger (left), 0.5 cm x 0.5 cm, grievous. (6) Contusion, right shoulder , 3 cm x 3 cm, grievous. " . Autopsy surgeon Dr. Kalidas Chavan performed the postmortem. The deceased had suffered five external injuries 1) Stab injury on left side of chest. 15 cms. from mid line in 5th inter costal space, oblique, 3.5 cm long x 1.5 cm wide with gaping, cavity deep, margins sharp, both ends acute, upper and show evidence of contusion, lower and superficial. 2) Incised wound in mid axillary line in 5th inter castels face, horizontal 2 cms x 0.5 cm. x cavity deep (surgical wound for intercostal drain.) 3) scratch abrasion, horizontal on right pectoral region from axilla, 8 cm, long. 4) Abrasion on fore head, 7 cms from glabella, 1 x 1 cms. 5) Injury on abrasion fore head anterior lateral left side 1 x 1 cm. . During internal examination he found that stab wound in fifth intercostals space 15 cms. from the mid-line over the left side of the chest had pierced lower anterior lobe of left lung. There was 500 ml. of blood in thoracic cavity. The other stab wound had pierced left ventricle 3 cms. from the apex of the heart. It was one centimetre long and .3 centimetre wide. Left pericardium contained 20 cc. of blood. 7. A.S.I. Lamture recorded complaint of Suresh, held inquest on the dead body and sent it for post-mortem. Investigating officer has narrated the steps taken during the investigation. He refers to the spot panchanama and discovery of knife on the basis of confessional statement of accused no.1. Constable Baburao Mane states that accused no. 2 could not be traced in spite of the efforts. 8. At the trial the accused have narrated their version of the incident. According to the accused Raghunath called them to his field for the settlement of the dispute. When they reached the spot, Suresh, Raghunath and Navnath assaulted them. Eknath (deceased) tried to inflict injuries to Mukinda with knife. Accused no.1 caught his hand. During the struggle which followed he sustained injuries. Raghunath has filed report of this incident. Criminal case registered on the basis of this report against Raghunath and others is pending in court. The accused plead right of private defence. 9. Eknath (deceased) tried to inflict injuries to Mukinda with knife. Accused no.1 caught his hand. During the struggle which followed he sustained injuries. Raghunath has filed report of this incident. Criminal case registered on the basis of this report against Raghunath and others is pending in court. The accused plead right of private defence. 9. In support of the appeals, learned counsel Shri. Jadhvar would argue that the entire prosecution case is based on the evidence of related witnesses which is full of contradictions and omissions. No independent witness is examined though the incident has taken place in broad daylight. This apart, the prosecution has failed to give satisfactory explanation regarding the injuries suffered by accused no.1. As the prosecution has suppressed genesis of the occurrence, the trial judge should not have convicted the accused on the basis of uncorroborated testimony of the partisan witnesses. Referring to the counter case pending against the complainant party, learned Counsel submits that refusal of the trial Judge to try both the cases simultaneously has resulted in causing prejudice to the accused. Learned Counsel contends that the trial Judge committed grave error in declining to accept plea of self defence adopted by the accused, therefore, adverse findings recorded by the trial Judge deserve to be set aside by allowing the appeal. Commenting on the appeal against acquittal, learned Counsel submitted that evidence of the prosecution witnesses in respect of the acts attributed to accused nos. 3, 5 and 6 do not receive corroboration from the medical evidence and has been rightly rejected by the trial Judge. 10. Referring to the fact that the trial court has accepted evidence of the prosecution witnesses in respect of the complicity of accused no.1 and accused no. 5; learned A.P.P. Shri. N.H.Borade would argue that as a logical corollary the trial judge should have concluded that the accused formed unlawful assembly and shared common object to commit murder of deceased Eknath and voluntarily causing hurt to the prosecution witnesses. The trial judge committed an error in not convicting the accused for the offences with which they were charged. According to learned A.P.P. Shri. Borade, as the evidence of the prosecution witnesses is found to be trustworthy, dismissing criminal appeals filed by accused nos. 1 and 5, all the accused be convicted of the offences with which they are charged. 11. According to learned A.P.P. Shri. Borade, as the evidence of the prosecution witnesses is found to be trustworthy, dismissing criminal appeals filed by accused nos. 1 and 5, all the accused be convicted of the offences with which they are charged. 11. There can be no dispute about the proposition of law canvassed by learned counsel that the counter cases arising out of the same incident should be tried together. If two complaints are lodged in respect of the same incident giving different versions of the incident and two separate criminal cases are registered on the basis of these complaints, both the criminal cases must be tried simultaneously to ensure that conflicting decisions are not rendered in respect of the same incident. The principles governing trial of counter cases are enunciated by the Apex court In Nathi Lal -V- State of U.P. (1990 Supp SCC 145 : 1990 SCC (Cri) 638) and Sudhir v. State of M.P., (2001) 2 SCC 688 , at page 692. Though it is desirable to try the counter cases simultaneously, the omission to do so would not vitiate the trial held separately, unless it is shown that prejudice is caused to the appellants. In the present case, the appellants suffered adverse order without making further grievance. During the trial right of private defence is adopted. F.I.R. (Ex. 138) is filed on record. The trial judge has considered this controversy in paragraphs 44 and 45 of the judgment. In these circumstances it is not possible for us to sustain contention of learned counsel that omission to hold both the trials simultaneously has resulted in causing prejudice to the appellants. 12. Referring to the decision of the Apex Court In Laxmi Sing V. State of Bihar (A.I.R. 1976 SC 2263) it is contended that no reliance can be placed on the evidence of the partisan witnesses as they have suppressed genesis of the occurrence. There can be no dispute regarding the proposition that non explanation of the injuries suffered by the accused by the related or partisan witnesses leads to the inference that the prosecution witnesses are not disclosing the whole truth. In such cases duty is cast on the court to carefully analyse the evidence of partisan witnesses before accepting their evidence. There can be no dispute regarding the proposition that non explanation of the injuries suffered by the accused by the related or partisan witnesses leads to the inference that the prosecution witnesses are not disclosing the whole truth. In such cases duty is cast on the court to carefully analyse the evidence of partisan witnesses before accepting their evidence. However, evidence of witnesses can not be discarded merely on the ground that they are related to the deceased or have made an attempt to suppress genesis of the occurrence. The principles governing this topic are discussed by the Apex Court in Kalegura Padma Rao V. State of A.P. (2007 AIR SCW 1447). In para 8 of the report, Their Lordships observed: "8. In regard to the interestedness of witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation is to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible." 13. The dictum In Lakshmi Singh V. State of Bihar ( AIR 1976 SC 2263 ) that non explanation of the injuries suffered by the accused would lead to the conclusion that witnesses are suppressing the truth, making their testimony unreliable, is modified by the subsequent decision of the Apex Court. In Laxman Sing V. Poonam Sing (2003 AIR SCW 4566). In para 7 of the report it is observed: " Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the 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 far outweighs the effect of the omission on the part of the prosecution to explain the injuries." 14. In this context we may also refer to the decision of the Apex Court In Amar Malla V- State of Tripura (2002) SCC 9. In this context we may also refer to the decision of the Apex Court In Amar Malla V- State of Tripura (2002) SCC 9. In that case Their Lordships observed: " It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eye witnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating officer." 15. The established principles of appreciation of evidence would thus show that there can be no hard and fast rule for assessing worth of the testimony of the related witnesses in each case. The evaluation has to be based on the facts and circumstances of each individual case. The fact that injuries suffered by some of the accused are not explained by the witness has to be kept in mind while evaluating evidence of the prosecution witnesses and considering the defence propounded by the accused. On pragmatic assessment of the evidence of the prosecution witnesses the court finds that the defence version of the incident is probable, the accused would be entitled to the benefit of doubt. 16. In the present case, there is no controversy in respect of the scene of the occurrence and the participants. Complainant Suresh (P.W.1) has stated that accused nos. 5 and 6 incited other accused to assault the victims. Mukinda then mounted the assault by inflicting stick blow on his head. Accused no.1 dealt two knife blows on the chest of Eknath. Accused no.1 then inflicted two injuries on his shoulder by knife and dealt another blow on his nose. Accused no. 5 dealt blow on the left side of the back of Eknath by using bicycle chain and dealt a blow on his back with bicycle chain. Accused no. 6 dealt stick blows on the head and hand of his father Raghunath. Accused nos. 2 and 3 assaulted his mother Savitrabai by stick and fisted her. Evidence of Navnath (P.W.2), Raghunath (P.W.7) and Savitrabai (P.W.8) agrees with the evidence of Suresh so far as it concerns assault on him, Eknath and Raghunath. These witnesses, however, state that accused nos. 2 and 3 kicked and fisted Savitrabai and pulled her hairs. Evidence of Dr. 2 and 3 assaulted his mother Savitrabai by stick and fisted her. Evidence of Navnath (P.W.2), Raghunath (P.W.7) and Savitrabai (P.W.8) agrees with the evidence of Suresh so far as it concerns assault on him, Eknath and Raghunath. These witnesses, however, state that accused nos. 2 and 3 kicked and fisted Savitrabai and pulled her hairs. Evidence of Dr. (Mrs.) Vandana Chausalkar (P.W.13) discloses that Suresh had received one incised wound on right scapula, left scapula and on the bridge of the nose. Dr. Chausalkar has categorically testified that none of the injuries suffered by the victims are caused by chain. The medical evidence does show that Ragunath had sustained CLW on frontal region of the scalp, a contusion on left shoulder and left fore arm. There is some variance between the evidence regarding assault on Raghunath. Suresh states that accused no. 6 dealt one stick blow on the head and another on left hand of Raghunath, whereas Navnath attributes a single blow on head of his father to accused no.6. Raghunath attributes three blows to accused no.6. Savitrabai refers to a single stick blow by accused no.6 on the head of her husband. Ratan is closely related to both the parties. He speaks of assault by accused no.1 on Eknath and Suresh by knife and makes a general statement that accused were beating the victims by sticks. He does not attribute specific acts to accused nos. 2 to 6. The medical evidence shows that Savitrabai had not sustained injuries. While appreciating evidence of these witnesses the fact that the accused had also suffered injuries during the course of the occurrence can not be lost sight of. Version of the incident given by the accused in the report lodged by Mukinda is brought on record by producing F.I.R. (EX. 138). In this background the need for separating grain from the chaff arises and reliance can be placed only on that part of the evidence of the prosecution witnesses which receives corroboration from the independent source and the medical evidence. Applying this yardstick it can be seen that evidence of Suresh, Navnath, Raghunath and Savitrabai is substantiated by Ratan who can be considered as impartial as he is closely related to Savitrabai as well as accused nos. 5 and 6. Ratan corroborates evidence of the Complainant, his brother, father and mother on the point of assault by accused no. Applying this yardstick it can be seen that evidence of Suresh, Navnath, Raghunath and Savitrabai is substantiated by Ratan who can be considered as impartial as he is closely related to Savitrabai as well as accused nos. 5 and 6. Ratan corroborates evidence of the Complainant, his brother, father and mother on the point of assault by accused no. 1 by means of knife. The discovery of knife is proved by Sheshrao (P.W.4). Report of the Forensic Laboratory that blood was found on the blade of the knife lends authenticity to the evidence of discovery and further strengthens evidence of the prosecution witnesses regarding the complicity of accused no.1. This witness has also referred to the recovery of chain on the basis of confessional statement of accused no.5. However, in the absence of injury by chain, the evidence of discovery loses importance. 17. The testimony of partisan witnesses regarding the assault on Eknath and Suresh by accused no.1 is further corroborated by the medical evidence of Dr. Chausalkar and autopsy surgeon Dr. Chavan. Postmortem report discloses that Eknath had sustained stab injury on the left side of the chest and at fifth intercostals space besides three abrasions on right pectoral region and two abrasions over forehead. Absence of injury which can be attributed to bicycle chain coupled with the fact that there is variance in the evidence of the prosecution witnesses in respect of acts attributed to accused no.6; it is hazardous to rely on the evidence of partisan witnesses regarding complicity of accused no. 5 and 6. Pragmatic analysis of the material on record would lead to the irresistible conclusion that after the exchange of words between Raghunath and Mukinda, free fight between two groups started all of sudden. Neither group had developed specific common object. The participant acted on their own impulse. During the course of the mutual fight, accused no.1 suddenly took out knife and targeted Eknath and Suresh. The nature of the weapon used, the site selected for assaulting Eknath and the force employed does manifest his intention to cause injury on the vital parts of the body. The injury so caused by accused no.1 is proved to be sufficient in the ordinary course of nature to cause death. Thus, by application of the rule evolved In Virsa Singh’s case (A.I.R. 1958 SC 465) 465); accused no.1 is liable for committing culpable homicide amounting to murder. The injury so caused by accused no.1 is proved to be sufficient in the ordinary course of nature to cause death. Thus, by application of the rule evolved In Virsa Singh’s case (A.I.R. 1958 SC 465) 465); accused no.1 is liable for committing culpable homicide amounting to murder. Absence of reliable evidence regarding the acts attributed to accused nos. 2, 3, 5 and 6 entitle them to the benefit of doubt. The Sessions Judge has discussed evidence concerning acts attributed to accused no. 5 in paragraph nos. 61 to 65. It appears that the Sessions Judge was unduly influenced by the discovery of chain at the instance of accused no. 5. The Sessions Judge, however, failed to appreciate significance of absence of injury by chain on the person of Eknath and Suresh. The marshalling of evidence in paragraph 62 is, to say the least, difficult to understand. It is apparent that the Sessions Judge has committed an error in arriving at the conclusion that accused no. 5 did inflict injury to Suresh by using cycle chain. This finding thus, deserves to be set aside. Considering the totality of the evidence, in our considered opinion, the prosecution has succeeded in establishing guilt of accused no.1 beyond reasonable doubt. Remaining accused are, however, entitled to benefit of doubt. 18. In the result, Criminal Appeal No. 247/ 2004 filed by accused no.1 Dnyaneshwar and Criminal Appeal No. 476/2004 filed by the State are dismissed. Criminal Appeal No. 245/2004 filed by accused no.5 is allowed. Order of conviction and sentence imposed on accused no. 5 is quashed and set aside. Accused no. 5 is acquitted of the offences with which he is charged. Fine, if paid by accused no. 5 - Jivan be refunded to him. His bail bond stands cancelled.