JUDGMENT S.C.PARIJA, J. (1) THIS Criminal Appeal is directed against the judgment dated 1-10-2001, passed by the Additional Sessions Judge. Bhanjanagar, in S. C. No. 59/99 (S.C. 351/99 G. D. C.), holding the appellants guilty of the charge under Sections 302/341/ 34, I. P. C. and convicting them thereunder. (2) THE prosecution case, in brief, is that the informant Kalicharan Sabat, orally reported to the O. I. C, Surada P. S. on 7-1-1999, at 7 p.m., that his son-in-law Gopalkrushna Sahu came to his house in village Gobindapur at 4 p.m. and offered him Rs. 25,000/- sent by his son from Surat, which he did not receive, as he was alone in the house. His son-in-law Gopalkrushna informed him that he had withdrawn Rs. 27,000/- in total on that date from Surada State Bank. Gopalkrushna left the house of the informant on his cycle carrying the bag towards his village Sorisabali. 15 to 20 minutes thereafter, Chitaranjan Sabat, the elder brother of the informant came running and informed the informant that his son-in-law Gopalkrushna had been killed by accused Manu Gouda. THE informant rushed out from his house and found Gopalkrushna lying with bleeding injuries on the road at a distance of about 50 yards from his house and his sister Sarojini Panigrahy, Sarojini Sabat, wife of his brother, one Nanda Gouda and others were near his son-in-law Gopalkrushna, who told him that he was restrained by accused Srikar Gouda and thereafter assaulted by accused Manoranjan Gouda by means of a khanda-kati and they took away the entire money from him. At that time accused Narayan was shouting to kill Gopalkrushna. It was also alleged that prior to the incident, accused Manoranjan Gouda had dissuaded the informant not to give his eldest daughter in marriage in village Sorisabali and after the marriage, accused Manoranjan had threatened to kill his son-in-law. It was also alleged that one year back in the month of April, accused Manoranjan had thrown bombs to the house of the informant, about which he had complained to the villagers. The said oral report of the informant (PW 2) was reduced into writing by the I. O. (P. W. 11) and a case was registered and investigation was taken up. During investigation, the I. O. visited the spot, seized the bicycle lying on the road and one pink colour foam handbag lying near it. The said oral report of the informant (PW 2) was reduced into writing by the I. O. (P. W. 11) and a case was registered and investigation was taken up. During investigation, the I. O. visited the spot, seized the bicycle lying on the road and one pink colour foam handbag lying near it. He also seized blood stained earth and sample earth and deputed the A. S. I. of Police to Berhampur to conduct inquest over the dead body, seized the wearing apparels of the deceased. After post-mortem examination and after completion of investigation, filed charge-sheet against all the accused persons. (3) THE plea of accused Manoranjan and accused Srikar was of complete denial and that they have been falsely implicated in this case. THE plea of the other accused, Narayan Gouda was that from 5-1-1999 to 9-1-1999, he was under treatment at Bhanjanagar Hospital and was thereafter referred to M. K. C. G. Medical College and Hospital, Berhampur and was not present in the village on the date of the occurrence. (4) THE prosecution examined 12 witnesses in support of its case. P. W. 2 is the informant, P. W. 3 is the wife of the elder brother of the informant, P. W. 6 is the sister of the informant and P. W. 7 is the elder brother of the informant, who are the eye-witnesses to the occurrence. P. W. 1 is a post-occurrence witness, while P. Ws. 4 and 5 are two other eye-witnesses. P. W. 9 is the wife of deceased Gopalkrushna. P. W. 8 is a witness to the seizure of the wearing apparels on production by accused Narayan Gouda. P. W. 10 is the doctor of Surada Hospital, who has examined deceased Gopalkrushna and P. W. 12 is the doctor, who conducted the post-mortem on the dead body of Gopalkrushna. P. W. 11 is the I. O. The defence examined six witnesses, out of whom, D. Ws. 1 and 2 are the post- occurrence witnesses and D. W. 6 is accused Narayan Gouda. D. W. 3 is the doctor of S. D. Hospital, Bhanjanagar and D. W. 4 produced OPD register of the said hospital. D. W. 5 is the person, in whose house the accused persons stayed from 5-1-1999 to 9-1-1999. 1 and 2 are the post- occurrence witnesses and D. W. 6 is accused Narayan Gouda. D. W. 3 is the doctor of S. D. Hospital, Bhanjanagar and D. W. 4 produced OPD register of the said hospital. D. W. 5 is the person, in whose house the accused persons stayed from 5-1-1999 to 9-1-1999. (5) P. W. 3, who is the wife of the elder brother of the informant, stated in her evidence that her house is adjacent to the house of the informant (P. W. 2). On the date of the incident, at about 4 p.m., deceased Gopalkrushna, the son-in-law of P. W. 2 had come to his house to give Rs. 25,000/-, to which P. W. 2 declined to receive as he was alone in the house. P. W. 3 further stated that she went to a nearby tank at about 20 to 30 cubits away from their house to answer the call of nature and while climbing its embankment, she saw that while Gopalkrushna was proceeding on a cycle on the road leading to Surada from Gajalbadi, accused Srikar stopped him near the tank and accused Manoranjan with a khanda-kati assaulted him on his right arm. Gopalkrushna raised his left hand requesting accused Manoranjan not to assault him but accused Narayan instigated to kill Gopalkrushna. Accused Manoranjan dealt another blow with the khanda-kati, which landed on the raised left hand palm of the deceased and the middle finger was severed. Accused Manoranjan fled away taking with him the bag, which was hung on the cycle of the deceased and the other accused persons following accused Manoranjan ran away. P. W. 3 stated that she along with P. Ws. 4, 5 and 6 ran to the deceased Gopalkrushna, sprinkled water on his face, after which, he regained consciousness and narrated about the incident. The informant (P. W. 2) and P. W. 7 came to the spot hearing the shout and the informant went to the Police Station to report the matter. When they were shifting Gopalkrushna on a cot to Surada Hospital, a police jeep came and he was taken to Surada Hospital in the jeep. The informant (P. W. 2) and P. W. 7 came to the spot hearing the shout and the informant went to the Police Station to report the matter. When they were shifting Gopalkrushna on a cot to Surada Hospital, a police jeep came and he was taken to Surada Hospital in the jeep. Deceased Gopalkrushna was then taken to M. K. C. G. Medical College and Hospital, Berhampur, being referred by the doctor of Surada Hospital, where the deceased died just after arrival at about 10 p.m. (6) P. W. 6 corroborated the evidence of P. W. 3 that the deceased Gopalkrushna on 7- 1-1999 had come to the house of the informant and offered him Rs. 25,000/-, which he refused to receive and while returning back on a cycle, deceased Gopalkrushna was stopped by accused Srikar and assaulted by accused Manoranjan by a khanda-kati. At that time accused Narayan was shouting to kill the deceased. P. W. 6 also corroborated the fact that the deceased died after his arrival at M. K. C. G. Medical College and Hospital, Berhampur, in the same night. P. W. 7 in his evidence stated that deceased Gopalkrushna had come to the house of the informant on 7-1-1999 at 4 p.m. and offered him Rs. 25,000/-, which the informant declined to receive. P. W. 7 further stated that he went to a shop to purchase snuff and while proceeding home from the shop, he saw Gopalkrushna was stopped by accused Srikar and assaulted by accused Manoranjan by a khanda-kati aiming the blow on his neck, and left palm of Gopalkrushna was cut when he raised his hand to protect himself. Accused Manoranjan aimed another blow to the right side neck of Gopalkrushna, which hit his right arm, when he raised his right hand to protect himself. At that time, accused Narayan was shouting to kill Gopalkrushna. After the assault, accused persons fled away. Deceased Gopalkrushna was taken to Surada Hospital by a police jeep, where the doctor advised to take him to M. K. C. G. Medical College and Hospital, Berhampur. P. W. 7 further stated that he returned to village in a police jeep at about 9 p.m. and in his presence police seized blood stained earth, sample earth, cycle of the deceased and a violet colour bag lying on the road. (7) P.Ws. P. W. 7 further stated that he returned to village in a police jeep at about 9 p.m. and in his presence police seized blood stained earth, sample earth, cycle of the deceased and a violet colour bag lying on the road. (7) P.Ws. 4 and 5 stated in their evidence that on the date of incident at about 5 p.m. when they were coming carrying head loads of hay to their houses on Surada-Gajalbadi road, they saw accused Manoranjan assaulting deceased Gopalkrushna with a khandakati on his hand, while Gopalkrushna was coming on a cycle on that road. (8) THE informant (P.W. 2) in his evidence fully corroborated the FIR story and the role played by accused Srikar in restraining his son-in-law Gopalkrushna while he was coming in his cycle and the assault by accused Monoranjan with khanda-kati. He stated in his evidence that deceased Gopalkrushna was taken to Surada Hospital in the police jeep, where the doctor gave first aid and advised to take him to M.K.C.G. Medical College and Hospital, Berhampur. At about 8 p.m. they reached M.K.C.G. Hospital, Berhampur and deceased Gopalkrushna expired 5 minutes after their arrival. P.W. 1, who is a post-occurrence witness, stated in his evidence that while he was in front of his house, he heard commotion that Gopalkrushna, son-in-law of the informant (P.W. 2) was killed by accused Manoranjan. He rushed to the backside of his house and found Gopalkrushna lying on Surada-Dagingibadi road adjacent to the backside of his house and there were bleeding injuries on both his hands, below the elbow and he was surrounded by many persons. He further stated that on the same day at about 9 p.m., police came and seized one bicycle, one plastic bag lying on the road, sample earth and blood stained earth. (9) P.W. 9, who is the wife of deceased Gopalkrushna stated in her evidence that her deceased husband left their house at Sorisbali at 3 p.m. with Rs. 25,000/- which he had got by encashing a bank draft and went to her father's house at Gobindapur to deliver the money. At 7 p.m. a person from Gobindapur intimated her that her husband was seriously injured and he had been taken to Surada Hospital. 25,000/- which he had got by encashing a bank draft and went to her father's house at Gobindapur to deliver the money. At 7 p.m. a person from Gobindapur intimated her that her husband was seriously injured and he had been taken to Surada Hospital. After hour, she reached Surada hospital and found the right hand of her husband was severed from above the elbow and there were marks of cut injuries on both his palms. Her husband Gopalkrushna told her that while he was returning home by a cycle, accused Srikar restrained him, accused Narayan shouted to kill him and accused Manoranjan assaulted and inflicted cut injuries on him. He also told her that the accused persons took away the money along with the bag. P.W. 9 further stated that her husband Gopalkrushna was shifted to MKCG Medical College and Hospital, Berhampur for better treatment, where he expired. (10) P.W. 10 is the doctor, who treated deceased Gopalkrushna on the date of incident i.e. 7-1-1999 at about 7.30 p.m. He stated in his evidence that the deceased was brought for treatment in serious condition by his relatives and subsequently he got a requisition from the OIC, Surada Police Station for medical examination of Gopalkrushna. He found incised injuries over the right forearm near the elbow, incised wound 3" long on the left hand between the plain of little and ring finger extending up to the wrist dividing the hand in two parts, incised wound over the left fore-arm flexor aspect 1" above the wrist. In the opinion of P.W. 10, the injuries were caused by sharp cutting heavy weapon within six hours and there was profuse bleeding and the condition of the injured was serious. After giving first aid he referred the patient to M. K. C. G. Medical College and Hospital, Berhampur. P.W. 10 further stated that on 18-7-1999 he examined a sword (khanda-kati) sent to him by the police and opined that the injuries were possible by that weapon and particles of mud were found on the blade portion of the sword. After giving first aid he referred the patient to M. K. C. G. Medical College and Hospital, Berhampur. P.W. 10 further stated that on 18-7-1999 he examined a sword (khanda-kati) sent to him by the police and opined that the injuries were possible by that weapon and particles of mud were found on the blade portion of the sword. P.W. 12 is the doctor, who conducted the post-mortem over the dead body of deceased Gopalkrushna on 8-1-1999 and found a superficial incised injury on the chest, incised injury on the left 4th web space extending down-wards cutting the underlying muscles, vessels and metacarpal was almost separated from the other four fingers and attached with stump by means of a tag of skin suggesting defensive wound, incised wound situated little obliquely over the left flexor of the fore arm with clean cut margins below the above mentioned injury, incised wound situated obliquely over the right anti cubical fossa with clean cut chopped margin 20 cm., above the right radian styloid process. On dissection, P.W. 12 found corresponding to the last incised injury, the underlying muscles, vessels, nerves had been cleanly cut including the brachial artery. A clean cut chopped portion of radial head is separated from the body. The injuries were ante- mortem in nature and could have been caused due to the impact by a moderately heavy sharp cutting weapon. P.W. 12 opined that the injuries in combination and the last injury by itself were fatal in ordinary course of nature and the cause of death was due to haemorrhage and shock and the death was homicidal in nature. (11) P.W. 11 is the I.O., who reduced the oral report of the informant into writing and registered the case and took up investigation. He stated regarding seizure of wearing apparels of the deceased after the post-mortem examination and verification done by him about the ledger of State Bank of India, Surada Branch and found that deceased Gopalkrushna had deposited Rs. 27,000/- in his account and withdrawn Rs. 25,000/- on 7-1-1999. (12) D.W. 1 in his evidence stated that the informant (P.W. 2) was debarred to enter into the village of Asurabandha, as his sons were indulging in criminal activities. 27,000/- in his account and withdrawn Rs. 25,000/- on 7-1-1999. (12) D.W. 1 in his evidence stated that the informant (P.W. 2) was debarred to enter into the village of Asurabandha, as his sons were indulging in criminal activities. On the date of the incident he had gone to village Gobindapur to the house of the daughter of his sister and while returning back in the evening hours on Surada-Gajalbadi road, he found a man lying with severe bleeding injuries on his hand and was faintly asking for water. He also found 4 to 5 persons had gathered around him and he ascertained that the injured was the son-in-law of P.W. 2. He further stated that Sasi Pradhan (D.W. 2) of Gobindapur village sprinkled water on the face of the injured, after which he stopped talking and became silent. Thereafter, P.W. 2 arrived and declined to heed to his advice to take the injured to the hospital immediately, preferring to wait till arrival of the police. D.W. 2 deposed that on the date of incident at about 5 p.m. when he was in his house, he herd a commotion from Surada- Gajalbadi road and he came out and saw a man lying injured on the road with his right hand wrist profusely bleeding and 4 to 5 persons had gathered around him. He ascertained that the injured was the son-in-law of P.W. 2 and the injured was opening and closing the mouth and after he sprinkled water on his face, he stopped opening his mouth and became completely silent. He further stated that thereafter P.W. 2 and P.W. 7 came to the spot and P.W. 2 declined to take the injured to the hospital till arrival of the police. (13) D.W. 3 is the doctor, who deposed that on 5-1-1999, he treated accused Narayan Gouda as an out patient in S. D. Hospital, Bhanjanagar. On 9-1-1999, on examination of Narayan Gouda as an out patient he referred him to MKCG Medical College and Hospital, Berhampur. (13) D.W. 3 is the doctor, who deposed that on 5-1-1999, he treated accused Narayan Gouda as an out patient in S. D. Hospital, Bhanjanagar. On 9-1-1999, on examination of Narayan Gouda as an out patient he referred him to MKCG Medical College and Hospital, Berhampur. D.W. 4 proved the entry No. 18005 dated 5-1-1999 in the OPD register of S. D. Hospital, Bhanjanagar D.W. 5 in his evidence stated that on 4-1-1999 at about 6 p.m. accused Narayan with his wife and two sons i.e. accused Manu and accused Srikar came to his house at village Dhimirpalli, which is about one furlong from Bhanjanagar for treatment and on 9-1-1999 accused Narayan and his sons left for Berhampur for treatment. Accused Narayan Gouda (D.W. 6) deposed that he along with his wife and two sons, accused Manu and accused Srikar had gone to the house of D.W. 5 for treatment and that he was treated by D.W. 3 at Bhanjanagar Hospital and was advised to stay for few days. D.W. 6 further stated that he stayed in the house of D.W. 5 till 9-1-1999. during which period, he attended Bhanjanagar Hospital daily. As the disease did not show any improvement, on 9-1-1999 evening he along with his wife and two sons, went to MKCG Medical College and Hospital, Berhampur for treatment. (14) LEARNED Additional Sessions Judge, considering the evidence of the eye-witnesses i.e. P.Ws. 3, 6 and 7 and the evidence of P.Ws. 4 and 5 coupled with the medical evidence and the circumstantial evidence, like seizure of the weapon of offence (Khanda-kati) and the wearing apparels, containing blood stains, disbelieved the plea of the defence and found the accused persons guilty of offences under Sections 302/341/34, IPC and convicted accused Manoranjan Gouda (appellant No. 1) and accused Srikar Gouda (appellant No. 2) guilty of offence under Section 302/341/34, IPC and were convicted thereunder. In absence of any incriminating materials to implicate accused Narayan Gouda, he was acquitted of the charges. Learned counsel for the appellants forcefully submits that as the so-called eyewitnesses i.e. P.Ws. 3, 6 and 7 are close relatives of the deceased their evidence should not have been relied upon as the basis for convicting the accused persons, in absence of any credible corroborating evidence. Learned counsel for the appellants forcefully submits that as the so-called eyewitnesses i.e. P.Ws. 3, 6 and 7 are close relatives of the deceased their evidence should not have been relied upon as the basis for convicting the accused persons, in absence of any credible corroborating evidence. In this regard, it is submitted that there being no independent witness to the alleged occurrence and there being no strong and well- knit circumstantial evidence to establish the involvement of all the accused persons in the alleged crime, the conviction of the accused persons cannot be sustained. It is further submitted that as the prosecution has miserably failed to establish any motive or intention on the part of the accused persons to commit the alleged offences, learned Additional Sessions Judge erred in passing the impugned order of conviction. It is further submitted that as the allegation against accused Srikar Gouda was that he merely restrained deceased Gopalkrushna while he was proceeding in his cycle and there being no evidence on record to show or even suggest that accused Srikar had intention to kill deceased Gopalkrushna and no overt act having been attributed to the said accused, the conviction of accused Srikar under Sections 302/34, IPC is improper and illegal. In this regard, it is submitted that as there is no material on record to show that accused Srikar had acted in furtherance of common intention to kill deceased Gopalkrushna, the application of the provision of Section 34, IPC is erroneous and misconceived. In the alternate, it is pleaded by the learned counsel for the appellants that admittedly there being no motive or any pre-meditation or even any intention on the part of the accused persons to kill Gopalkrushna and the alleged assault by them being on the both the hands of deceased Gopalkrushna and not on his vital parts, it cannot be said that the accused persons had assaulted deceased Gopalkrushna with the intention of killing him. Accordingly, it is submitted that at best accused Manoranjan can be held guilty of offence under Section 304, Part II, IPC and accused Srikar Gouda for the offence under Section 341, IPC. (15) ON a perusal of the evidence of the eye-witnesses, i.e. P.Ws. 3, 6 and 7, it is seen that the same are clear, cogent and consistent with regard to the occurrence, which took place on 7-1-1999 and fully corroborates the FIR story. (15) ON a perusal of the evidence of the eye-witnesses, i.e. P.Ws. 3, 6 and 7, it is seen that the same are clear, cogent and consistent with regard to the occurrence, which took place on 7-1-1999 and fully corroborates the FIR story. The evidence of P.Ws. 4 and 5 is also credible and consistent in corroborating the evidence of the eye-witnesses with regard to the incident, which took place on 7-1-1999, resulting in the death of Gopalkrushna. Merely because the eye-witnesses are relatives of the deceased, the same cannot be a ground to disbelieve the evidence of such witnesses, as ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. Moreover, the evidence of defence witnesses, i.e. D.W. 1 and D.W. 2 lead credence to the fact regarding assault on deceased Gopalkrushna, while he was going on a cycle on Surada-Gajalbadi road and the grievous injury sustained by him in the assault. Further the medical evidence of the doctors (P.Ws. 10 and 12) clearly goes to show that deceased. Gopalkrushna had suffered grievous injuries on his right fore arm near the elbow and on his left hand and both the doctors had opined that the injuries were caused by sharp cutting heavy weapon and were fatal in ordinary course of nature and that the death of Gopalkrushna was a homicidal one. P.W. 10 had opined, on examination of the sword (khanda-kati), that the injuries were possible by the said weapon. The Chemical Examination Report revealed the existence of human blood on the Khanda-kati. Accordingly, on an overall appreciation of the evidence of the eye-witnesses as well as the evidence of the informant (P.W. 2) and P.Ws. 4 and 5 coupled with the medical evidence and Chemical Examination Report, it cannot be said that the findings arrived at by the learned Additional Sessions Judge with regard to the involvement of the accused persons-appellants in the crime suffers from any apparent error, so as to warrant any interference. (16) HOWEVER, from the evidence on record, we find that the prosecution has not been able to establish any motive on the part of the accused persons for committing the offence of murder of deceased Gopalkrushna. (16) HOWEVER, from the evidence on record, we find that the prosecution has not been able to establish any motive on the part of the accused persons for committing the offence of murder of deceased Gopalkrushna. Admittedly there was no enmity between the accused persons and the deceased and there was no pre-meditation or any design on the part of the accused persons to commit the murder of Gopalkrushna. Further, there is no credible evidence on record to show that accused Srikar Gouda (appellant No. 2) had indulged in any overt act, except restraining deceased Gopalkrushna, while he was proceeding on a cycle. It is also not clear from the evidence of the prosecution whether such restraint by accused Srikar was to facilitate accused Manoranjan (appellant No. 1) to assault deceased Gopalkrushna or the same was meant to protect the deceased from such assault. No material is forthcoming to show that accused Srikar in furtherance of common intention to kill Gopalkrushna had restrained him, while he was proceeding in the cycle. In absence of any such clear evidence implicating accused Srikar Gouda (appellant No. 2) of any overt act, we are of the view that his conviction under Sec. 302/34, IPC is not proper and justified and according set aside the same. As regard accused Manoranjan (appellant No. 1), in absence of any pre-meditation or prior design or any intention to kill deceased Gopalkrushna, and the entire incident having taken place on the spur of the moment and the assault being on the hands of the deceased and not on any vital parts of the body of the deceased, we are of the view that the conviction of accused Manoranjan under Sections 302/341/34, IPC is not proper and justified and accordingly set aside the same. Accordingly, we hold accused Manoranjan (appellant No. 1) guilty of the offence under Section 304, Part II, IPC and convict him thereunder and sentence him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 10,000/- failing which he should undergo R.I. for a further period of two years. Accused Srikar (appellant No. 2) is found guilty of offence under Section 341, IPC and is accordingly convicted thereunder and sentenced to the period already undergone by him and also to pay a fine of Rs. 500/- failing which he shall undergo R.I. for a further period of one month. Accused Srikar (appellant No. 2) is found guilty of offence under Section 341, IPC and is accordingly convicted thereunder and sentenced to the period already undergone by him and also to pay a fine of Rs. 500/- failing which he shall undergo R.I. for a further period of one month. On realization of the fine, the same shall be paid to the wife of deceased Gopalkrushna. It is needless to say that the period undergone by accused Manoranjan (appellant No. 1) shall be treated as set off. The Criminal Appeal is accordingly disposed of with the above modification. Order accordingly. --- *** ---