Judgment ( 1. ) THE appellants have directed this appeal being aggrieved by the judgment dated 26. 9. 1996 passed by the 1st Additional Sessions judge, Sidhi in Sessions Trial No. 55/95 convicting to each of them under Sections 304 Part-II r/w 149, 147 and 340/142 of the IPC with a direction to undergo for ten years RI with fine of,rs. 1000, in default of it further six months RI in the first count while six months RI separately under both the remaining counts. ( 2. ) THE facts giving rise to this appeal in short are that on dated 27. 1. 1995 at about 3. 30 in the noon Tejmani, son of Sumer the Watchman of village Rajmilan recorded the merge intimation report at Police Station Madha contending that at about 10 oclock in the morning, he went to the market of said village where he came to know from Bhailal Nai that Raj Kumar is caught hold raid handed in the last night by Jamuna Prasad Sahu while he was stealing the motor pump of Surajlal sahu and thereafter he was kept in his house. On which he visited such place of suraj Lai where nearby his house, he saw the Raj Kumar lying under the tree of jack fruit. At the same time Devi Sharan, Sarpanch came there, whom Raj Kumar confessed. that he came there to commit theft. On which son of Surajlal asked him (the Watchman) taking the Raj Kumar to Police Station but physically Raj Kumar was not feeling comfortable and could not walk, inspite of it, son of Suraj Lal sahu brought him up to the bus stand where he died. The signs of bleeding were present on the nose and ear of said Raj Kumar. As per further case the said informer could not explain the cause of the death in his intimation. In its enquiry after preparing inquest Panchanama the dead body was sent to hospital where its postmortem was carried out, in which the death of Raj Kumar was found to be homicidal in nature and the appellants were prime facie found to be the accused for causing the alleged injuries to Raj Kumar, on which FIR was registered against them at the aforesaid Police Station on dated 28. 1. 1995 with respect of the offence under Section 147, 149, 342, 302 of IPC. 1. 1995 with respect of the offence under Section 147, 149, 342, 302 of IPC. After holding investigation they were charge sheeted for the same. After framing charges of the aforesaid offenses and recording evidence, on appreciation, the appellants instead the aforesaid offenses are held guilty under Section 304, Part - II, r/w 149, 147 and 342/149 of ipc and punished with the above mentioned punishment. The same are under challenge in this appeal. ( 3 ) . Shri P. R. Bhave, learned Senior Advocate, assisted by Shri Bhanu Pratap yadav taking me through the evidence adduced by the prosecution and exhibited documents said that prosecution has failed to prove the alleged offence beyond reasonable doubt against any of the appellants. He further said that the story put fourth by the prosecution has not been proved by any independent source of evidence. The independent witnesses Umakaul (PW-2), Hirwa (PW-4) and devisharan (PW-9) turned hostile at trial and have not stated anything against any of the appellants. So far witnesses Raju (PW-5) and Chhoti (PW-6), the son and the wife of the deceased are concerned, he said that in view of the postmortem report and the deposition of concerned doctor their testimonies are not reliable. They being family members of the deceased are the interested witnesses that is why their testimonies could not be a foundation for conviction of the appellants unless corroborated by any independent source of evidence. Besides this in view of the inter se inconsistency between the depositions of aforesaid witnesses Raju and Chhoti and also in view of contractions and omissions from the case diary statements they are not reliable. As per deposition of Dr. R. B. Singh who carried out, the autopsy of deceased on 28. 1. 1995, Raj Kumar died before 36hours from the time of carrying out the postmortem while as per deposition of said Raju and chhoti they saw the Raj Kumar alive lastly with the appellants on 27. 1,1995. In view of medical opinion it could not be inferred that on 27. 1. 1995 the deceased was alive, on proper appreciation of evidence the trial court ought to have acquitted the appellants but contrary to it, they have been convicted under the wrong premises. With these submissions he firstly prayed for acquittal of the appellants. 1,1995. In view of medical opinion it could not be inferred that on 27. 1. 1995 the deceased was alive, on proper appreciation of evidence the trial court ought to have acquitted the appellants but contrary to it, they have been convicted under the wrong premises. With these submissions he firstly prayed for acquittal of the appellants. In alternative he argued that in any case if the impugned conviction of the appellants is upheld then considering the scenario of the incident in which it was happened and taking into consideration that the incident took place long back before thirteen years in the year 1995 and the appellants have already suffered some months in the judicial custody before releasing them on bail during trial and also suffered some period in jail between the period from the date of holding the conviction till passing the order for suspension of their jail sentence by this court, and they did not have any other criminal antecedents in their lives and are the only responsible persons to look after their family affairs, instead to send them again jail by adopting some lenient view their jail sentences be reduced up to the period for which they have already suffered the sentence as undergone, as stated above, and prayed to allow the appeal accordingly. ( 4. ) ON the other hand, responding the aforesaid arguments Smt. Sushila Paliwal, learned Government Advocate by justifying the conviction and the sentence of the appellants said, that same are based on proper appreciation of the evidence and also in conformity with law. The same do not require any interference either for acquittal or reducing the awarded jail sentence at this stage and prayed for dismissal of this appeal. ( 5. ) HAVING heard and perused the record alongwith the impugned judgment. ( 6. ) IT is true that the impugned conviction of the appellants is mainly based on the testimonies of Raju (PW-5) and Chhoti Bai (PW-6), the son and the wife of the deceased while some of the eye witnesses namely-Uma Kaul (PW-2), Hirwa (PW-4) (the maternal Uncle of said Raju) and Devi Sharan (P-9) turned hostile and have not stated directly any incriminating thing against any of the appellants. ( 7. ) TEJMANI (PW-2), the village Watchman while proving the merge intimation report stated some background of the incident. ( 7. ) TEJMANI (PW-2), the village Watchman while proving the merge intimation report stated some background of the incident. According to his deposition, on the aforesaid fateful day at about 10. 30 in the morning, he came to the market of village Rajmilan where from Bhailal Nai he came to know that Jamuna, appellant no. 1 has caught hold a thief on which he went towards the house of Surajmal where he saw the Raj Kumar lying injured on the floor and was also crying. He saw the injuries on his ear, head and the legs. He further said that on asking the reason of sustaining such injuries Jamuna told him that Raj Kumar sustained the same on falling down from the roof while carrying out the theft of motor pump. Witness further stated that Raj Kumar died there in his presence. In paragraph 5 of the deposition he categorically stated that the wife of Raj Kumar also came to such place where Raj Kumar was lying. She asked him the name of the culprit who caused the injuries but Raj Kumar did not tell anything. The deposition of this witness clearly shows that after sustaining injuries Raj Kumar was lying near the house of Suraj Lai where his wife also came and asked the names of the culprits from him. His deposition also shows that Raj Kumar died only after having talk with his wife. So presence of the wife near the house of Surajlal where Raj kumar was lying after sustaining the injuries has been established by this witness. ( 8. ) APART the above, Devi Sharan (PW-9) although turned hostile but, however, stated that on the date of the incident at about 7 oclock in the morning he saw the raj Kumar alive near the house of Suraj Lai where the accused were also present. Rai Kumar told him that after consuming the large quantity of liquor by him he was caught hold by Suraj Lal and others. On asking shown the name of Uma kaul with whom he was stealing the motor pump. Accordingly, this witness also speaks that on the date of the incident at about 7 oclock in the morning Raj kumar was lying alive near the house of Suraj Lal under detention of the appellants. ( 9. On asking shown the name of Uma kaul with whom he was stealing the motor pump. Accordingly, this witness also speaks that on the date of the incident at about 7 oclock in the morning Raj kumar was lying alive near the house of Suraj Lal under detention of the appellants. ( 9. ) IN the available circumstances, it could be inferred that looking to the status of the appellants and their family in the village the aforesaid independent witnesses either under their fear or the influence did not state the actual incident and some of them turned hostile. On the other hand from the depositions of Raju (PW-5) and the Chhoti (PW-6), son and wife of the deceased, it appears that they being from the poor family the deceased Raj Kumar was involved in the profession of begging and a day before the incident he had gone to market with his bag and "dhapali" the musical instrument for begging but did not return up to the evening and on the next morning it was known to his wife Chhoti (PW-6) that he is lying under the tree of jack fruit near the. well of Suraj Lal, on which she alongwith her. son Raju (PW-5) rushed to the aforesaid tree where she saw her husband Raj kumar tied with a tree after tying his legs and hands and he was being beaten by the present appellants by means of fists and kicks. In such beating on giving a blow of kick by Ramdas to Rajkumar, his tongue came out. At the same time due to fear of the appellants Chhoti (PW-6) alongwith her son came back to their home from such place. Thereafter at about 11 oclock she came to know that after killing her husband the appellants threw him in the Chhanda market. Then she alongwith her son and family members went to such market where they found raj Kumar dead. The dead body was taken to home, thereafter she went to the police Station, Manda and lodged the report while her son Raju went to inform his maternal Uncle Hirwa. Then she alongwith her son and family members went to such market where they found raj Kumar dead. The dead body was taken to home, thereafter she went to the police Station, Manda and lodged the report while her son Raju went to inform his maternal Uncle Hirwa. Although the report as stated by this witness is not available on the record but merely on that count in the available circumstances, it would not be deemed that either merge or the FIR of the alleged incident was wrongly registered at the Police Station either at the instance of the Watchman of the village or Shri Urnesh Mishra, S. H. O. of Police Station, Manda respectively. ( 10. ) IN the deposition of Chhoti, she specifically stated the names of all the appellants as culprits of the incident who caused injuries to her husband, deceased raj Kumar. She also shown the presence of twenty to twenty five persons on the place of incident. Although she stated that Tejmani, the Watchman also gave a blow of stick on the head of Raj Kumar but in investigation in the lack of evidence such Tejmani was not charge sheeted. I am of the view that for any reasons if the evidence against Tajmani could not be collected by the investigation agency, then it does not mean that the appellants, against whom case has been found to be proved are entitled to extend any benefit on such ground. Thus, such argument is hereby failed. ( 11. ) THE aforesaid, testimony of the wife of the deceased is further supported by his son Raju (PW-5), who stated the similar version with some minor differences in his chief as stated by her, Although in cross examination this witness stated that when he went to inform his maternal uncle Hirwa, he did not say him the names of the culprits. Non mentioning the names of the culprits to Hirwa could not be a sufficient circumstance to disbelieve the deposition of this witness. On going through the cross examination of both the witnesses, I have not found any circumstance destroying the version stated by them in their chief or contrary to the story put fourth by the prosecution against the appellants. ( 12. On going through the cross examination of both the witnesses, I have not found any circumstance destroying the version stated by them in their chief or contrary to the story put fourth by the prosecution against the appellants. ( 12. ) NOWADAYS it is settled proposition of law that merely/the ground of near relationship of the eye witnesses with the victim or the deceased could not be a sole ground to discard their testimonies, it the same appear to be reliable in other circumstances of the case. Although court is under obligation to scrutinize such evidence carefully and cautiously. ( 13. ) IN view of the aforesaid discussion, it has been established that said Raj kumar before 2-3 hours from his death was seen alive. It is noted that not only the direct evidence against the appellants for causing the alleged injuries to the deceased are available on record but subsequent circumstances are also proved against them. Therefore, it is held that deceased Raj Kumar was lastly seen alive with the appellants while he was being beaten by them, as stated above and later he was found dead. In such premises, the trial court has not committed any error in holding guilty the appellants for the aforesaid offences. ( 14. ) ON perusing the postmortem report, Ex. P-l 1 and the deposition of Dr. R. B. Singh (PW-10), it is apparent that the deceased sustained various injuries on different part of his person, with the injuries on nose, left ear, right shoulder, both hands. He also sustained the fractures of ulna and shoulder bone of the right hand alongwith the fractures of 5th, 6th and 7th ribs of right side. According to the opinion of doctor the cause of death of the deceased Raj Kumar was hemorrhagic shock due to rupture of lower Lobeay of right lunge and the death is within of near about 36 hours. Looking to the nature of injuries mentioned in the postmortem report, the same were sufficient to cause death in the ordinary course of the nature. In such premises, the trial court has not committed any error in holding the death of Raj Kumar as homicidal in nature. ( 15. ) I am not impressed with the argument advanced by the appellants counsel saying that as per deposition of Dr. In such premises, the trial court has not committed any error in holding the death of Raj Kumar as homicidal in nature. ( 15. ) I am not impressed with the argument advanced by the appellants counsel saying that as per deposition of Dr. R. B. Singh, (PW-10) such death took place before 36 hours from the time of carrying out the autopsy, accordingly to him such death took place in the mid night of 26th to 27th January 1995, thus, there was no question to see the Raj Kumar alive by his wife and son in the morning of 27. 1. 1995. Firstly in view of the specific averments in the postmortem report, Ex. P-l 1 stating the death within 36 hours the aforesaid version of the doctor stated in the deposition being contrary to such report is not reliable. Secondly as per the postmortem report the rigor mortis was present in the dead body and was not passed away. In such premises, it could not be held that the alleged death took place before 36 hours from the time of the postmortem. Therefore, on such ground no benefit can be extended to the appellants. Hence, the arguments of the appellants in this regard fails. ( 16. ) APART the above, it is settled proposition of law that if there is a conflict between ocular evidence of the eye witnesses and the medical evidence, then the ocular evidence prevails over the medical evidence as the medical evidence is only as an expert evidence while the deposition of eye witnesses speaks about the real incident. Such principle was laid down by the Apex Court in the matter of solan hi Chimanbhai Ukabhai, Vs. State of Gujarat reported m AIR 1983 supreme COURT 484 in which it was held as under:- 12. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. ( 17. ) IN the aforesaid premises, although the medical evidence does not appear to be contrary with the ocular evidence but for the sake of argument, if it is contradictory, then the ocular evidence is reliable as held in the matter of Punjab Singh Vs. State of haryana, reported in AIR 1984 SUPREME COURT 1233 as under:- "2. We first take up the case of Punjab Singh. Miss Lily thomas, learned counsel for the appellant contended that Punjab singh had not participated in the assault on the deceased. P. W. 5, p. W. 6 and P. W. 8 clearly state in their evidence that Punjab. Singh gave a gandasa blow to the deceased. This evidence has been accepted by both the Courts. The only contention raised was that medical evidence is inconsistent with the direct testimony. This contention must fail for two reasons: (i) that if direct evidence is satisfactory and reliable the same cannot be rejected on hypothetical medical evidence; and (ii) as pointed put by Mr. K. G. Bhagat, learned additional Solicitor General appearing for the State of Haryana, that if medical evidence is properly read, it only shows two * alternative possibilities but not any inconsistency. That appears to be correct. That is the only point pressed in favour of the Punjab singh. Miss Lily Thomas, learned counsel. for tl\e appellant contended that Punjab Singh is a young man and he is a college going student and that some consideration may be shown to him. We are satisfied that no case is made out for compassionate approach when the deceased has been done away. The appeal of Punjab Singh fails and is dismissed. " ( 18. for tl\e appellant contended that Punjab Singh is a young man and he is a college going student and that some consideration may be shown to him. We are satisfied that no case is made out for compassionate approach when the deceased has been done away. The appeal of Punjab Singh fails and is dismissed. " ( 18. ) IT appears from the impugned judgment that trial court after appreciation of evidence, not only of the prosecution but also the defence witnesses who mainly stated regarding the defence of the alibi with respect of the respective appellants by disbelieving such defence, and taking into consideration the scenario in which the alleged incident took place has rightly held that appellants have not committed such act with intention to cause the death of Raj Kumar and in such premises, the conviction of the appellants under Section 304-11 r/w 149 of IPC appears to be correct. I have not found any infirmity or perversity in such approach of the trial court. Hence the same is hereby affirmed. ( 19. ) SO far the conviction of the appellants with and aid of Section 149. of IPC and under Section 147 of IPC are concerned, in view of the aforesaid discussions, i have found sufficient evidence against the appellants for constituting the unlawful assembly for the aforesaid object; hence such findings of the trial court do not require any interference, thus, the same are hereby affirmed. ( 20. ) COMING to consider the prayer for reduction of the jail sentence awarded under Section 304-11 IPC by the trial court against the appellants, it is noted that taking into consideration the scenario of the incident the appellants instead the charge of Section 302/149 of IPC have been convicted for minor offence of such category under Section 304, Part -II with punishment of ten years with fine of rs. 1000. In the available circumstances, it appears that in order to save the theft of motor pump in the hit of passions the alleged incident was happened long back before fifteen years in the year 1995 and thereafter the appellants have already suffered some months in the judicial custody during pendency of the trial before releasing on bail and also from the date of the impugned judgment till passing the order for suspension of their jail sentences. They also appear to be the bread winner of their respective family. But in the available circumstances, I do not find fit-to reduce their jail sentence up to the period only of some months for which they have already suffered. However, considering the over all circumstances of the case by enhancing some amount of fine with a direction to give the same to the complainants family to subserve the justice with them, I deem fit to reduce the jail sentence of the appellants from ten years to five years by enhancing some amount of fine under Section 304, Part - II, r/w Section 149 of IPC. ( 21. ) THEREFORE, by allowing this appeal in part the sentences of the appellants under section 304 r/w Section 149 are reduced from ten years to five years by enhancing the amount of fine from Rs. 1000 to Rs. 5000/- (Rs. five thousands) against each of the appellants, in default of it, the concerning appellants have to suffer further six months rigorous imprisonment while findings of the impugned judgment holding conviction and sentence to the appellants under Section 341/149 and 147 of IPC are hereby affirmed. On depositing the aforesaid fine amount by the appellants, the same be given to the wife of the deceased, Raj Kumar only and in her absence to her legal heirs after due verification. Till the aforesaid extent the impugned judgment is modified. In pursuance of it, the appellants are directed to surrender themselves before the trial court on or before 31st March 2009 for facing the remaining jail sentence, failing which the trial court is directed to take appropriate steps against them or any of them, as the case may be, to serve the remaining jail sentence. Appeal partly allowed.