JUDGMENT (1) This appeal is directed against the judgment of conviction and order of sentence dated 5-4-2006 passed by the 9th Additional Sessions Judge (F. T. C), bilaspur, in Sessions Trial No. 137/2002 whereby and where under learned 9th Additional Sessions Judge after holding the appellants guilty for the offence punishable under Section 304, Part II of the Indian Penal code each of them sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo simple imprisonment for one month. (2) Judgment of conviction and order of sentence is challenged on the ground that without there being an iota of evidence the court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. Case of the prosecution, in brief, is that on 31 -12-2004 at night Fayeem Ahmad (since deceased) was present near Torwa krishi Upaj Mandi Samiti, Bilaspur with other persons who were enjoying the New year. Some dispute arose between the deceased and present appellants. The accused/appellants assaulted the deceased with stick and stump. The deceased fell down. Blood was oozing from his head. Her sister Ku. Rijwana (PW-1), Shamim Ahmad (PW-2) and other persons have seen the incident. Injured also narrated the incident to his sister and father. They took him in the cims Hospital where he died. F. I. R. was lodged vide Ex. P/l on 1-1-2005. Spot map was prepared vide Ex. P/2. Plain and blood stained soil were recovered from the spot vide Ex. P/3. Inquest over the dead body was prepared vide Ex. P/6 after summoning the witnesses. Dead body was sent for autopsy. Autopsy was conducted by Dr. V. K. Manwani (PW-12) vide Ex. P/22 and following injuries were found over the body of the deceased : i) one abrasion of 2. 1 x 0. 1 cm. over left ankle ii) two abrasions upon 5 cm. x 7 cm. over his right back. iii) two abrasions of size 2. 2 x 1. 1 cm. over his right knee. iv) one lacerated wound of size 3. 4 x 8 x 9 cm. over his parietal bone and fracture of parietal bone found. Fracture of temporal bone was found. (3) The doctor has opined that cause of death was as a result of shock due to grievous injury and death was homicidal in nature. 1 cm. over his right knee. iv) one lacerated wound of size 3. 4 x 8 x 9 cm. over his parietal bone and fracture of parietal bone found. Fracture of temporal bone was found. (3) The doctor has opined that cause of death was as a result of shock due to grievous injury and death was homicidal in nature. On the basis of disclosure statement made by the accused vide Ex. P/8, one stick was recovered at his instance vide Ex. P/ 15. Appellant Durgesh made disclosure statement of stump vide Ex. P/9. Same was recovered at the instance of appellant durgesh vide Ex. P/14. Appellant Alok kumar made disclosure statement of stick vide Ex. P/10. Same was recovered from alok Kumar vide Ext. P. /15. Inder Singh made disclosure statement of stick vide Ex. P/11. Same was recovered vide Ex. P/13. Accused were arrested and seized articles were sent for chemical analysis. Merg intimation was recorded vide Ex. P/13. (4) After recording the statements of the witnesses under Section 161 of the Code of criminal Procedure, 1973 (in short 'code')and alter completion of investigation, one charge sheet was filed before the Additional chief Judicial Magistrate, Bilaspur who in turn committed the case to the Court of Session, Bilaspur from where learned 9th Additional Sessions Judge {f. T. C), Bilaspur received the same on transfer for trial. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 16 witnesses. Statements of the accused were recorded under section 313 of the Code where they denied the circumstances appearing against them and innocence and false implication is pleaded. (5) Learned 9th Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the appellants as aforementioned. (6) I have heard Shri J. A: Lohani, counsel for the appellants and Shri Akhil Mishra, deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the Court below. Learned counsel for the appellants vehemently argued that Ku. Rijwana (PW-1)and Shamim Ahmad (PW-2) are interested and relatives' witnesses and they have not seen the incident. Their statements do not inspire confidence and are not sufficient for convicting the appellants. Learned counsel for the appellants vehemently argued that Ku. Rijwana (PW-1)and Shamim Ahmad (PW-2) are interested and relatives' witnesses and they have not seen the incident. Their statements do not inspire confidence and are not sufficient for convicting the appellants. Learned counsel further argued that according to case of prosecution, Vinod Markam (PW-9) has deposed that while he was returning from the place of enjoyment, he saw the deceased was lying beside the room. He took him to his house and informed their relatives and her sister came out from inside the house shows that Ku. Rijwana and Shamim Ahmad have not seen the incident and they deposed against the appellants only with a view to implicate the appellants falsely. Learned counsel also argued that the deceased was of criminal antecedent and having so many enemies and in the absence of cogent and positive evidence, conviction and sentence of the appellants is not sustainable under the law. (7) On the other hand, learned counsel for the State/respondent supported the judgment impugned and argued that Ku. Rijwana (PW-1) and Shamim Mohhamad (PW-2) are sister and father of the deceased. They are relatives witnesses but their presence at the time of incident were natural. Incident took place in front of their house and the relative would be the last to screen the real culprit and falsely implicate an innocent person. Only on the ground of their relativeness statements cannot be discarded. The prosecution has declared Vinod markam (PW-9) as hostile. According to his statement, he was only chance witness and his statement requires minutely scrutiny. He has not supported the statement recorded under Section161 of the Code. (8) In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties. Injury found over the body of deceased fayeem Ahmad and cause of death as a result of injury is not disputed by the appellants, otherwise established by the statement of Ku. Rijwana (PW-1), Shamim Ahmad (PW-2), Kalim Ahmad (PW-7), Vinod Markam (PW-9), autopsy report (Ex. P/22), merg intimation (Ex. P/l3) and promptly lodged F. I. R. (Ex. P/l). Dead body of deceased was examined by Dr. Rijwana (PW-1), Shamim Ahmad (PW-2), Kalim Ahmad (PW-7), Vinod Markam (PW-9), autopsy report (Ex. P/22), merg intimation (Ex. P/l3) and promptly lodged F. I. R. (Ex. P/l). Dead body of deceased was examined by Dr. V. K. Manwani (PW-12) who was noticed four injures over the body of the deceased and injuries were lacerated wound, fracture and corresponding fracture of temporal bone and cause of death was shocked as a result of injury and death was homicidal in nature. In order to establish the complicity of the appellants in the crime in question, the prosecution has examined Ku. Rijwana (PW-1), sister of the deceased, who has lodged the F. I. R. vide Ex. P/l who has deposed in her evidence that on 31-12-2004 her brother Fayeem Ahmad went Out from her house to celebrate the New Year. In the intervening night of 31st December, 2004 and 1st January, 2005 he heard sound of quarrel and she, her mother and her father opened the door and came out and they saw that the present appellants and one Monu were beating her brother by stump and stick. Her brother fell down, then the appellants fled away from the spot. They tried to take her brother, at that time Vinod Markam (PW-9) and one Bunty came there. They took injured in front of door of her house. Blood was oozing from his head. He was unconscious. They took him to CIMS Hospital by rickshaw and during the course of treatment he died at 4. 30 a. m. She has specifically deposed that at the time of incident Durgesh was having stump and rests persons were having stick and she has lodged the F. I. R. (Ex. P/l). Her statement is corroborated by the statement of her father Shamim Ahmad. Kalim Ahmad (PW-7) brother of the deceased has deposed that at the time of incident he was sleeping in his house. After hearing sound of weeping, he left the bed. No any person was found inside his house where his brother was lying. Mother, father, sister and other persons were also present there. The deceased told him that he was beaten by the accused persons, then he become unconscious. They took injured to CIMS Hospital where he died at 4. After hearing sound of weeping, he left the bed. No any person was found inside his house where his brother was lying. Mother, father, sister and other persons were also present there. The deceased told him that he was beaten by the accused persons, then he become unconscious. They took injured to CIMS Hospital where he died at 4. 30 a. m. Vinod markam (PW-9) has only supported the case of prosecution up to the extent that he saw the injured and he took him in front of his house and informed his relatives. The prosecution has declared him hostile. In his cross-examination he has not supported the case of prosecution and also deposed that at the time of incident, street light was not burned. Vinod Markam (PW-9) is a chance witness. He was not residence of vicinity where the incident took place. He was coming after celebrating the New Year. He has deposed that he saw that the injured was lying beside the road then he took him in front of his house and informed his relatives. He is chance witness and statement of chance witness requires minutely scrutiny before placing any reliance. (9) In Bahal Singh v. State of Haryana, air 1976 SC 2032 : (1976 Cri LJ 1568), the apex Court has held that statement of chance witness is not necessarily incredible or unbelievable but does require cautious and close scrutiny. Para 10 of the said judgment reads as under : -" 10. As to the presence of P. Ws. 4 and 5 at the time and place of occurrence the trial court entertained grave doubts. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P. Ws. 4 and 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial Court. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P. Ws. 4 and 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial Court. There was not any compelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their collateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge. " (10) VINOD Markam (PW-9) has not supported the case of prosecution in to to and prosecution declared him hostile but he has supported the case of prosecution up to the extent that he saw the injured. In the light of the aforesaid legal proposition the evidence of Vinod Markam (PW-9) is reliable only up to the extent that he has seen the injured. Ku. Rijwana (PW-1), Shamim Ahmad (PW-2) and Kalim Ahmad (PW-7) are close relatives of the deceased and residence of same house. The prosecution has examined ku. Rijwana (PW-1) in detail. She has specifically admitted that her brother fell down within the distance of 8 to 10 steps from her house. She has denied the suggestion in para-8 of her cross-examination that one govind Chandel and his son Suraj assaulted the deceased then ran away from the spot and came towards her house to save himself. After knocking the door by neighbours she has opened the door. She has also denied the suggestion of absence of street light and specifically deposed that in the street light she has seen the incident along with her mother and father though she has admitted that her advocate has advised her to state on the basis of her police statement but in detail cross-examination she has not stated anything that she has not seen the incident. The prosecution has also examined shamim Ahmad (PW-2) father of the deceased, but in his detail cross-examination, the defence has not been able to elicit anything to discard his testimony. He is corroborated the statement of her daughter Ku. The prosecution has also examined shamim Ahmad (PW-2) father of the deceased, but in his detail cross-examination, the defence has not been able to elicit anything to discard his testimony. He is corroborated the statement of her daughter Ku. Rijwana, Kalim Ahmad (PW-7) has also stated that when he came out from the house at that time his brother lying and he has not seen the incident. He is not eye-witness. He is witness of dying declaration and has deposed that injured has stated before him that he was assaulted by the accused persons and he become unconscious and lastly he died. Police has recorded his statement under Section 161 of the Code as Ex. D/1. This fact also finds place in Ex. D/1. He has stated the factum of dying declaration. (11) In this case, Ku. Rijwana (P. W. 1), shamim Ahmad (P. W. 2) and Kalim Ahmad (P. W. 7) are close relatives of the deceased but only on the ground of their relationship they cannot be characterised as interested witness. While dealing with the case of relative witness as interested witnesses, in Dalip singh v. State of Punjab, (1954) 1 SCR 145 : (1953 Cri LJ 1465), the Apex Court has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under : - "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom, a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth". (12) While dealing with the same question in Masalti v. State of U. P., (1964) 8 scr 133 : (1965 (1) Cri LJ 226), the Apex court has held that statement of the relative witness should not be discarded only on the ground of interested or partisan witness. Witnesses should not be discarded on the ground that it is evidence of a partisan or interested witness. While dealing with the same question in Rizan v. State of Chhattisgarh, 2003 air SCW 469 : (2003 Cri LJ 1226), the Apex court has observed that relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal the actual culprit and make allegations against the innocent person. (13) While dealing with the same question in Namdeo v. State of Maharashtra, 2007 AIR SCW 1835 : (2007 Cri LJ 1819), the Apex Court has held that a close relative cannot be characterized as an "interested" witness. He is natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is not ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. (14) In the present case, definitely Ku. Rijwana (P. W. 1), Shamim Ahmad (P. W. 2)and Kalim Ahmad (P. W. 7) are closed relatives of the deceased. Incident took place in front of their house. According to their statement, they have seen the incident from very close distance show that they have seen the incident from 18to 20 feet in the streetlight. They have immediately took the injured to the hospital where he died at about 4. 30 p. m. show that they are the persona who immediately rushed the spot i. e. by opening the door and came out where they have seen the incident. Their presence in their house is natural. Their presence is supported by the subsequent act of immediate shifting to injured to the hospital and lodging the FIR. Their statements are corroborated by the statements of each others and also by prompt lodging of FIR. Their presence in their house is natural. Their presence is supported by the subsequent act of immediate shifting to injured to the hospital and lodging the FIR. Their statements are corroborated by the statements of each others and also by prompt lodging of FIR. The defence has not been able to elicit anything to show that they are implicated the present appellants on the ground of previous enmity or some other cause. Their statements inspire confidence and trustworthy. Their statements may be safely relied upon and are sufficient for drawing inference that the appellants were the persons who have caused injury to the deceased. After appreciating the evidence available on record, the Court below has convicted and sentenced the appellants as aforementioned. Statements of the witnesses are not discarded on the basis of their relationship. Learned Court below has rightly convicted and sentenced the appellant. Conviction and sentence is sustainable under the law and is based on the legal and credible evidence. Three accused have caused injury to the deceased and as a result of such injury he died within 4 hours during his treatment. The Court below has convicted the appellants under Section 304, Part II of the indian Penal Code and sentenced them rigorous imprisonment for 8 years. Taking into consideration the cause of death of the deceased by inflicting injury, sentence imposed upon the appellants is neither excessive nor unjust. No interference is called for. (15) Consequently, the appeal has no merit, same is liable to be dismissed and is accordingly dismissed. Appeal dismissed.