JUDGMENT A.S.NAIDU, J. (1) THE judgment and order of conviction dated 8-1-2001 passed by learned Addl. Sessions Judge, Bolangir convicting the appellants for the offence under Sections 147, 148;, 302/149, IPC and sentencing each of them to undergo R.I. for two years for the offence under Section 149, IPC and further sentencing, them to undergo R.I. for life for the offence under Section 302/149, IPC in Sessions Case No. 68/23-B of 1998/ SC No. 77/24-B of 1998, is assailed in this appeal. (2) THE appellants faced trial for having formed an unlawful assembly carrying deadly weapons on 27-12-1997 in village Rinbachan with the common object to commit murder of one Ajit Kumar Dip and committing rioting with the said object. THE prosecution case was set to motion on the basis of an FIR filed by Jadu Dip (P.W. 1) alleging that on 27-12-1987 at about 8.00 a.m. Ajit had been to a pan shop of one Muna Jani. All of a sudden, the accused persons rushed there holding sword, axe and lathis, surrounded him and brutally assaulted him using the said weapons. Consequent of such assault, the left leg of Ajit was severed and right leg was cut to a major extent. THEre were also grievous injuries on his head, face and nose. After receiving the injuries Ajit fell down on the village road. Hearing the commotion and on being called by Manoj Dip (P.W.2), P.W.1, the informant came out from his house. Seeing him, the accused persons rushed to assault both P.Ws. 1 and 2. By that time other villagers assembled and the accused persons fled away. Prasanna Dip (P.W. 5), the uncle of Ajit came to the spot on being informed and telephoned to Bolangir Sadar Police Station and intimated the incident. Receiving information, the police came to the village and carried the injured to the hospital at Bolangir in their jeep. P.W.1, Jadu Dip., who happens to be the father of the injured Ajit handed over the FIR, Ext. 1 to the police at the hospital after getting the same scribed through Dhanamali Dip (P.W. 6). On the basis of the said FIR, P.W.13, S.I. of Police took up investigation. P.W.1, Jadu Dip., who happens to be the father of the injured Ajit handed over the FIR, Ext. 1 to the police at the hospital after getting the same scribed through Dhanamali Dip (P.W. 6). On the basis of the said FIR, P.W.13, S.I. of Police took up investigation. On being satisfied that a cognizable offence under Sections 147, 148, 326, 307/149, IPC read with Section 3 of the SC and ST (P.A.) Act, 1985 has been committed by the accused persons, P.W. 13 registered P.S. Case No. 130 dated 27-12-1997. THE I.O. went to the spot, seized the blood-stained earth and other materials, and recorded the statements of different witnesses under Section 161, Cr. P.C. In course of investigation, Ajit succumbed to the injuries in the hospital. THEreafter, inquest was held over the dead body vide Ext. 2. THE corpse was sent for post-mortem examination to the District Headquarters Hospital, Bolangir and the wearing apparels of the deceased and other materials were seized. After obtaining the post-mortem report and after completion of investigation, charge-sheet was submitted in G. R. Case No. 563 of 1997 in respect of 18 accused persons. But then, it appears that as some of the accused persons could not be apprehended, the case against them was split up and G. R. Case No. 563-A of 1997 was registered. Learned SDJM, Bolangir on being prima facie satisfied, took cognizance of the offences and committed both the cases to the Court of Session. In course of committal proceeding, as all the accused persons were apprehended, both the cases were clubbed together and were disposed of by a common judgment. The plea of the defence was of complete denial. Their further case was that due to prior enmity between the two families, a false case has been foisted against them. The third plea taken by the defence is that Ajit was boy of bad character and was involved in many criminal activities and most of the time he remained absent from the village. He had made many enemies and it may be possible that he might have been killed by some of his enemies. The third plea taken by the defence is that Ajit was boy of bad character and was involved in many criminal activities and most of the time he remained absent from the village. He had made many enemies and it may be possible that he might have been killed by some of his enemies. In the alternative, they pleaded that accused Ranjan Sahu and Makardhoja Sahu had sustained grievous injuries on their person in course of occurrence, but the prosecution failed to explain their injuries, which leads to a presumption that they have not come to the Court with clean hands. (3) IN order to substantiate their case, prosecution got examined as many as 16 witnesses. Out of them P.Ws. 1 to 5 are close relatives. Jadu Dip (P.W. 1) is the father of the deceased and the informant, Manoj Kumar Dip (P.W.2) is the younger brother of the deceased, Amruta Dip (P.W. 3) is the mother, Sarojini Kumbhar (P.W. 4) is the aunt of the deceased, being the sister of P.W. 1 and P.W. 5 is the uncle of the deceased Ajit. They claimed to be the eye-witnesses to the occurrence as well as witnesses to the dying declaration made by the deceased implicating the accused persons to be the assailants. P.W. 6 is the scribe of the FIR (Ext. 1), P.W.7 is a post-occurrence witness, P.W. 8 is the Grama Rakhi, P.W. 9 is the constable, P.W.11 is the Havildar and P.W. 12 is another constable and all of them had taken part in course of investigation. They were also witnesses to the seizure of different material objects and had taken the body for postmortem examination, P.W. 12 had brought the injured to the hospital in a police Jeep, P.W. 10 is the doctor, who had conducted autopsy over the dead body and submitted his report, Ext. 4. P.W. 16 though not a charge-sheeted witness was summoned to prove the bed-head ticket, P.Ws. 13 and 15 are the INvestigating Officers and P.W. 14 is the another police personnel. 4. P.W. 16 though not a charge-sheeted witness was summoned to prove the bed-head ticket, P.Ws. 13 and 15 are the INvestigating Officers and P.W. 14 is the another police personnel. (4) AFTER discussing the entire evidence threadbare, the Sessions Court arrived at a conclusion that the prosecution was successful in establishing that the accused persons having formed an unlawful assembly came armed with lethal weapons to the village danda (sic) where Ajit was standing and assaulted him brutally, thereby causing multiple injuries on his person and in furtherance of that object, they had committed his murder and, therefore, all of them are liable for the offence under Section 302, IPC read with Section 149, IPC and convicted them thereunder. The said judgment is assailed before this Court, mainly on the ground that the Sessions Court failed to take note of the defence story and brushed aside the fact that Ajit was a boy of bad character having criminal background and might have been assaulted by his enemies. It is further averred that the Sessions Court acted illegally and with material irregularity in relying upon the evidence of P.Ws. 1 to 5 who are admittedly related to the deceased and were vitally interested in the prosecution case. It is further submitted that the original FIR was in fact suppressed and Ext. 1 was planted to suit the prosecution case. According to the appellants, the Sessions Court should not have accepted the dying declaration, which has not been properly proved and last but not the least, the prosecution having failed to explain the injuries sustained by two of the accused persons, the Court below should have presumed that the prosecution had not come to the Court with clean hands and should have disbelieved the witnesses in toto. It is also vehemently submitted by Mr. Pati that the prosecution having totally failed to attribute any motive to the accused persons, the Sessions Court acted illegally in convicting the appellants. In short, according to Mr. Pati, the judgment and order of conviction is based on mere surmises and conjectures and the Sessions Court being swayed away by fabricated materials convicted the appellants though they are no way connected with the alleged crime. All these submissions are strongly repudiated by Mr. N.P. Rath, learned Addl. Govt. Advocate. According to Mr. Rath, the Sessions Court has properly appreciated the evidence. All these submissions are strongly repudiated by Mr. N.P. Rath, learned Addl. Govt. Advocate. According to Mr. Rath, the Sessions Court has properly appreciated the evidence. It has discussed both oral and documentary evidence in extenso and the conclusions arrived at are just and proper. It is submitted that relatives being best witnesses and as there are five eye-witnesses to the occurrence, the Sessions Court has rightly believed the said witnesses and thus, has not committed any irregularities. That apart, the dying declaration said to have been made by Ajit before his death is a reliable piece of evidence, which leads to an irresistible conclusion that the accused persons-appellants alone have committed the offence. (5) HEARD learned counsel for the parties at length. Perused the evidence, both oral and documentary, meticulously and considered the submissions diligently. The evidence of P.W. 10, the doctor,who had conducted autopsy examination coupled with the postmortem report reveals that Ajit sustained following injuries : (1) Incised wound over fore-head cm. over right eyebrow of 3" x 2" x 1" with visible depressed fracture of frontal bones; (2) Incised wound over middle of forehead 1" x 1" x 1" (3) Incised wound over fore-head 2" above left eyebrow of size 2" x 1" x 1" with visible fracture of frontal bones through the wound. (4) Incised wound over bridge of nose of size " x " x ". (5) Incised wound over left parietal area 1" left to middle of vertex of size 3" x 2" x 2" with visible depressed comminuted fracture of left parietal bone. (6) Incised wound over right parietal area 2" above tip of pinna of right ear of size 3 x 2" x 2". (7) Incised wound over 1 cm. left to middle part of nose of size x " x ". (8) Incised wound over face 1" below right eye and 3" right to right ear of size 2" x 1" x 1". (9) Incised wound over right side upper lip 1" below and lateral to right nostril of size 1 c.m. x 1 c.m. x 1 c.m. (10) Amputation of left lower limb from lower leg about 2" above left ankle with visible bones nerves are exposed and have been tied with catgut. The skin over the wound has been cut in circular and left open exposing muscles and neuron vascular bundles. The skin over the wound has been cut in circular and left open exposing muscles and neuron vascular bundles. (11) Incised wound one over right leg 2" above right ankle on its medial aspect of size 2" x 1" x 1" (b) incised wound over right leg 1" above injury No. 11 (a) with size 1" x 1" x ", (c) incised wound over anterior aspect of right leg 4" above injury No. 11(a) of size 4" x 2" x 1" with exposed comminutated fracture of tibia bone. (12) One abrasion 1 c.m. x 1 c.m. over anterior superior Pxiliac spine of right side and one abrasion 1 c.m. x 1 c.m. over lateral aspect of right knee. (13) One lacerated wound 2" x 1" x " over right fore-arm 1" above right wrist posteriorly, (b) one abrasion 3 c.m. x 1 c.m. over right fore-arm 5" above posterior aspect of right wrist. (14) Incised wound of size 1" x " x " over flexor aspect of proximal phalanx of left 4th finger. (6) P.W. 10 has further opined that the cause of death was haemorrhage and shock due to severe intra-cerebral haemorrhage and severe bleeding from amputated leg and other external wounds. The said evidence leaves no doubt in our mind that the death was homicidal. The Sessions Court after discussing the evidence has arrived at the same conclusion and we feel that the said finding needs no interference. The only other question which needs determination is whether all the accused persons or some of them are responsible for causing such bodily injuries to Ajit, which led to his death. Out of the prosecution witnesses, P.Ws. 1 to 5 are eye-witnesses. As stated earlier, all of them are related to the deceased. Mr. Pati learned counsel for the appellants forcefully submitted that as P.Ws. 1 to 5 are interested witnesses being closely related to the prosecution (deceased) and as such, the Sessions Court should not have relied upon their evidence. But then, we are afraid, the settled position of law is otherwise. It is no more res integra that the interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard. But then, we are afraid, the settled position of law is otherwise. It is no more res integra that the interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard. Thus, the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each and indicate the reasons for accepting or rejecting it. The evidence of all such witnesses should not be discarded simply because they are relatives of the deceased. In the case of Bharati v. State of U. P. AIR 1974 SC 839 : (1974 Cri .L.J.709), the Supreme Court observed that in a murder case, it is an error to reject the evidence of witnesses on the ground that they are related to the deceased. (7) THE close relatives of the deceased would be normally reluctant to spare the real assailants and to falsely implicate others. This being the position of law, the Court is only to be on guard and is required to scrutinize the evidence of the relatives with more than ordinary care. Perusal of the judgment reveals that the Sessions Court has carefully and meticulously examined the evidence of P.Ws. 1 to 5 who are not only eye- witnesses but also are relatives. This Court also carefully went through the evidence of P.Ws. 1 to 5 in order to appreciate the conclusions arrived at vis-a-vis the arguments advanced. It appears that all the witnesses have vividly disclosed the incident. Though there are minor discrepancies, but then, the same are not in respect of material aspect. It is well known that when the evidence is recorded after a considerable time, minor discrepancies are bound to occur. A perusal of the evidence of P.Ws. 1 to 5 who are eye-witnesses, reveals that they have categorically named appellant No. 4-Pradeep Sahu,appellant No. 7- Prahallad Sahu, appellant No. 8 - Makaradhwaja Sahu, appellant No. 9 - Ranjan Sahu, appellant No. 11 - Ashok Kumar Sahu, appellant,No, 18 - Aravinda Panda as assailants. Those witnesses have been cross-examined at length, but then the statements made by them has not been shaken. Those witnesses have been cross-examined at length, but then the statements made by them has not been shaken. That apart, Prahallad Sahu (appellant No. 7), Pradeep Sahu (appellant No. 4), Hukur Sahu (appellant No.6), Garjan Sahu (appellant No. 1), Sarjan Sahoo (appellant No. 2), Rahasa Sahu (appellant No. 3), Ashok Kumar Sahoo (appellant No. 11), Ranjan Kumar Sahoo (appellant No. 9), Kecha Sahoo (appellant No. 13), and Ranga Sahoo (appellant No. 5) had sustained injuries in course of the same incident and were examined by the doctor on police requisition. THE said fact also establishes that the aforesaid accused- appellants had taken part in the assault. (8) APART from the evidence of the eyewitnesses, P.Ws. 1 to 5, the prosecution also relied upon the dying declaration said to have been made by the deceased before the aforesaid five persons. A perusal of the evidence further reveals that only P.Ws. 2, 3, 4 and 5 have stated that Ajit had made a statement naming the accused persons. The other witnesses had not stated anything about the said statement. That apart, if the injured Ajit handmade a statement naming the accused persons, there was no reason as to why the said fact was not reflected in the F.I.R. (Ext. 1). P.W. 10, the doctor in his evidence has opined that if a person sustains injuries like the deceased Ajit had, he would be able to speak for quite some time. In fact Ajit expired in the hospital after considerable time. No steps were taken to record his dying declaration. On a cumulative assessment of the entire evidence the Court of Session had arrived at a conclusion that the so-called dying declaration made by Ajit before P.Ws. 1 to 5 cannot be believed to be true. On scrutiny of the evidence, this Court also finds that the conclusions arrived at by the Sessions Court to the aforesaid effect is just and proper and needs no interference. Mr. Pati vehemently argued with regard to the defect in recording the FIR. According to him, P.W.1 had intimated the police over telephone and the said information should have been treated as F.I.R. Instead, the written complaint filed by P.W.1 which was scribed by P.W. 6 in the hospital has been treated as F.I.R. According to Mr. Mr. Pati vehemently argued with regard to the defect in recording the FIR. According to him, P.W.1 had intimated the police over telephone and the said information should have been treated as F.I.R. Instead, the written complaint filed by P.W.1 which was scribed by P.W. 6 in the hospital has been treated as F.I.R. According to Mr. Pati, the prosecution manipulated the facts and recorded a manipulated story in the F.I.R. (Ext.1) and the same should have been discarded. To examine the veracity of the said submission, this Court once again went through the records. It appears from the evidence of P.Ws. 1 to 5 as well as P.W. 13 that the police on receipt of telephonic information from P.W. 5 with regard to the incident, made station diary entry No. 556 and police personnel were deputed to the spot to guard the tense situation. It appears, Ajit who had sustained grievous injuries and whose leg was amputated was immediately removed to the hospital in the police jeep. At the hospital, the written F.I.R. (Ext-1) was lodged. Perusal of the evidence further reveals that neither any steps were taken by the defence nor any question was asked to the I.O. with regard to the F.I.R. Section 154.(1) of Code of Criminal Procedure stipulates as follows : 154. Information in Cognizable cases- (1) Every information delating to the commission of cognizable Offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State; Government may prescribe in this behalf, Thus, no irregularity has been committed in accepting the written F.I.R. The trial Court has discussed the said fact vividly in para 92 of the judgment and has rejected the defence plea. We also find no error so far as the said finding is concerned. We also find no error so far as the said finding is concerned. (9) THE discussions made above and the evidence adduced leads to an irresistible conclusion that the accused persons-appellants with the common intention of committing murder of Ajit Kumar Dip assembled on 27-12-1997 with deadly weapons and brutally assaulted Ajit by means of deadly weapons and severed one of his legs on 27-12-1997. Perusal of the entire evidence further gives an impression that there was prior enmity between Ajit and the accused persons and on the given day the accused persons assaulted him, but, then most of the injuries were dealt on the lower parts of the body, which reveals that they had no intention to murder Ajit. That apart, a scrutiny of the evidence reveals that only appellant No. 4 Pradeep Sahu, appellant No. 7, Prahallad Sahu, appellant No. 8 Makaradhwaja Sahu, appellant No. 9 Ranjan Sahu, appellant No. 11 Ashok Kumar Sahu, appellant No. 18 Aravinda Panda had dealt the injuries. THEy have remained in custody for about nine years. Considering the gravity of the offence committed by them and the overt-act independently attributed to them, as well as taking into consideration their intention, which was apparent from the medical evidence, this Court is satisfied that the aforesaid six persons have committed culpable homicide not amounting to murder and are liable to be punished under Part-I of Section 304, IPC. Consequently, this Court set aside the conviction made under Section 302, IPC so far as appellant No. 4 Pradeep Sahu, appellant No. 7 Prahallad Sahu, appellant No. 8 Makaradhwaja Sahu, appellant No. 9 Ranjan Sahu, appellant No. 11 Ashok Kumar Sahu, appellant No. 18 Aravinda Panda are concerned and instead, find them guilty under section 304, Part-I read with Section 148, IPC. Taking into consideration the fact that they are already in custody for nine years, this Court sentences them to the period already undergone and also imposes a fine of Rs. Taking into consideration the fact that they are already in custody for nine years, this Court sentences them to the period already undergone and also imposes a fine of Rs. 2000/- (two thousand) each, in default to undergo a further period of four months' R.I. So far as the other appellants are concerned, after examination of the evidence of P. Ws.1 to 5 and on being satisfied that they have not inflicted any injury on Ajit, but were all along present at the time of occurrence along with the aforesaid six appellants, this Court feels that the conviction under Section 148, IPC would serve the ends of justice. Accordingly, their conviction under Sections 147,148, 302/149, IPC is set aside and instead they are convicted under Section 148 IPC and are sentenced to undergo R. I. for a period of two years and to pay a fine of Rs.1000/- each, in default to undergo R. I. for a further period of two months. It is needless to say that the period of sentence already undergone by them shall be treated as setoff. After the fine amount is collected, 75 % of the same shall be paid to the family of the deceased. (10) THE appeal is disposed of subject to the modification of the conviction and sentence as indicated above. Order accordingly.