JUDGMENT 1. - Laxman and Ram Chandra, appellants herein, along with their father Mool Chand, were put to trial before learned Additional Sessions Judge Rajgarh, District Alwar for having committed murder of Hari. Learned Judge vide judgment dated January 23, 2003, while acquitting Mool Chand, convicted and sentenced the appellants under section 302/34 IPC to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for three months. 2. The facts are these : Deceased Hari was living in the field under a hut with his wife Kaushalya whereas his family members were residing far away from him in village Gola-ka-Bas. On March 7, 2002 around 9 PM Hari had gone to Gola-ka-Bas to meet his family. On March 8, at 5 AM Mool Chand (Hari's father) came to the field and informed Kaushalya that Hari had dashed his head with door. Kaushaiya then rushed to Gola Ka Bas and found her husband Hari lying dead in the house of her father in law. At 12 noon, SHO Police Station Tahla reached to the spot and recorded Parcha Bayan (Ex.P.5) of Kaushalya. On that Parcha Bayan case under sections 147, 148, 149, and 302 IPC was registered and investigation commenced. Statement of witnesses were recorded. The appellants and their father Mool Chand were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Additional Sessions Judge Rajgarh District Alwar. Charge under section 302/34 IPC was framed against the accused who denied the charge and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions while acquitting co-accused Mool Chand. convicted and sentenced the appellants as indicated herein above. 3. Death of Hari was undeniably homicidal in nature. As per post mortem report (Ex.P-24) following ante mortem injuries were found on the dead body 1. Incised wound with clotted blood present 15 x 4 cm x bone deep left parietal region of scalp. 2. Incised wound with clotted blood present 12 x 1 cm x bone deep mid of frontal region to mid Lt. side nose. 3. As per post mortem report (Ex.P-24) following ante mortem injuries were found on the dead body 1. Incised wound with clotted blood present 15 x 4 cm x bone deep left parietal region of scalp. 2. Incised wound with clotted blood present 12 x 1 cm x bone deep mid of frontal region to mid Lt. side nose. 3. Incised wound with clotted blood present 6 x 2 cm x bone deep Rt. parietal region of scalp. 4. Incised wound with clotted blood present 6 x 2cm x bone deep on xi sternum of chest. 5. Bruise 2 x 2cm upper left eye lid. 6. Bruise 4 x 3cm Lt. side chin. Dr. C.L. Meena (Pw.15), who performed autopsy on the dead body opined that cause of death was hemorrhagic shock as result of head injury. 4. We have heard rival submissions and scanned the material on record. 5. Manbhari (PW.6) mother of deceased and Chhota (PW.5) wife of appellant Laxman,'who were examined by the prosecution as eye witnesses of the occurrence, did not support the prosecution case and were declared hostile. Siya Ram Meena (PW.10), who was residing in the vicinity of appellants, however deposed that around 1 AM on hearing the noise he found that the family members in the house of Mool Chand were quarreling. Kaushalya (PW.4) in her deposition stated that in the morning when she reached to the house of her father in law, she saw her husband Hari lying dead. 6. In order to analyse the testimony of Chhota (Pw.5) and Manbhari (Pw.6), we have to consider as to what is the evidentiary value of testimony of hostile witnesses. A witness is hostile if he tries to injure a party's case by prevaricating or suppressing the truth. The term 'hostile witness' comes from English Law. Under the Common Law a 'hostile witness' is described as one i who is not desirous of telling the truth at the instance of the party calling him. 7. A witness is hostile if he tries to injure a party's case by prevaricating or suppressing the truth. The term 'hostile witness' comes from English Law. Under the Common Law a 'hostile witness' is described as one i who is not desirous of telling the truth at the instance of the party calling him. 7. Hon'ble Supreme Court in Sat Paul v. Delhi Administration, AIR 1976 SC 294 had occasion to resolve the controversy over the meaning of the term 'hostile witness' and it was indicated as under:- " To steer clear of the controversy over the meaning of the terms `hostile' witness, `adverse' witness, `unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by 5 a party is not conditional on the witness being declared `adverse' or `hostile'. Whether it be the grant of permission under Sec.142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross- examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi, AIR 1922 PC 409 . The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of `hostility'. It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as `declared hostile', 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had s so long vexed the English Courts. (Emphasis Supplied) 8. In Balu Sonba Shinde v. State of Maharashtra, 2002 (2) WLC (SC) Cri. (Emphasis Supplied) 8. In Balu Sonba Shinde v. State of Maharashtra, 2002 (2) WLC (SC) Cri. 629: 2002 (7) SCC 543 , the Apex Court observed that declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the court should be extremely cautious and circumspect in such acceptance. 9. in Anil Rai v. State of Bihar, 2001 (7) SCC 318 , the Apex Court held that merely because a witness has been declared hostile in not mentioning the name of one of the accused, his entire evidence cannot be wiped out. If his testimony is corroborated by other reliable evidence conviction can be based thereon. 10. In Gura Singh v. State of Rajasthan, 2001 (2) SCC 205 , the Apex Court indicated that it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of 1 such witness. 11. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of 1 fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the, process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. 12. Bearing these principles in mind when we consider the testimony of Chhota (Pw.5) we find that the credit of the witness has not been completely shaken. From the evidence of Chhota, we are inclined to believe that Hari came to the house with some ill intention and he kicked the door of his mother's room. 13. 12. Bearing these principles in mind when we consider the testimony of Chhota (Pw.5) we find that the credit of the witness has not been completely shaken. From the evidence of Chhota, we are inclined to believe that Hari came to the house with some ill intention and he kicked the door of his mother's room. 13. In the fact situation of the case this possibility can not be ruled out that in order to save their mother Manbhari, the appellants might have caused injuries to the deceased. The incident appears to have occurred all of a sudden and there was no premeditation on the part of the appellants. It can not be inferred from the facts and circumstances of the case that the appellants intended to kill their own brother Hari. Evidently Hari was aggressor and he entered the house of appellants in the odd hour of night with some ill intention. In such a situation it cannot be said that appellants acted in cruel or unusual manner and case against them clearly falls within Exception 4 to section 300 IPC. 14. For these reasons, we dispose of this appeal in the following terms (i) Since the appellant Ram Chandra died on October 7, 2005, the appeal filed by him stands abated. (ii) We partly allow the appeal of appellant Laxman and instead of section 302 read with 34 IPC, we convict him under section 304 part II IPC. Looking to the fact that appellant Laxman has been in custody for a period of more than six years and seven months, the ends of justice would be served in sentencing him e to the period already undergone by him in confinement. Appellant Laxman, who is in jail. shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal Partly Allowed - Appeal of R Held Abated because of his death. *******