JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 7th November 2003 passed by learned Ad hoc Addl. District and Sessions Judge, Fast Track Court, Rourkela, in S.T. Case No. 50/3 of 2003 convicting the appellants u/s 302 read with Section 34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay a fine of rupees ten thousand each, in default to undergo rigorous imprisonment for one year each is assailed in Crl. Appeal No. 301/2003 as well as Crl. Appeal No. 8/2004. 2. As both the appeals arise out of the common judgment, they were heard together on the request of the learned counsel. The prosecution case was set to motion on the basis of an F.I.R. lodged by Bipra Charan Sahoo (P.W.8). It is alleged that on 7.11.2002 at about 7.00 P.M. when Bhagaban Sahoo and his friend Padmalochan Panigrahi were gossiping near traffic market of Rourkela the accused persons being armed with deadly weapons attacked Bhagaban Sahoo. Padmalochan Panigrahi tried to intervene and save Bhagaban Sahoo, consequently he was also assaulted. Bipra Charan Sahoo (P.W.8) saw the incident and shouted for help. The nearby shopkeepers also raised hullah and some people assembled. Seeing the gathering the accused persons fled away from the place of incident leaving Bhagaban Sahoo and Padmalochan Panigrahi in a pool of blood. The injured persons were shifted to Ispat General Hospital for treatment. Unfortunately, both of them succumbed to the injuries. As per the F.I.R., 7 to 8 years back Bhagaban Sahoo and some other persons were arrested in connection with the murder of the mother of Abhesh Roy and in the said case Bhagaban Sahoo was acquitted. To take revenge of the murder of his mother Abhesh Roy and his friends attacked Bhagaban Sahoo and Padmalochan Panigrahi. The F.I.R. was registered as Rourkela Plant Site P.S. Case No. 351/2002 as per Ext.13. The said P.S. Case corresponds to G.R. Case No. 1881/2002 of the Court of learned S.D.J.M., Panposh. To take revenge of the murder of his mother Abhesh Roy and his friends attacked Bhagaban Sahoo and Padmalochan Panigrahi. The F.I.R. was registered as Rourkela Plant Site P.S. Case No. 351/2002 as per Ext.13. The said P.S. Case corresponds to G.R. Case No. 1881/2002 of the Court of learned S.D.J.M., Panposh. The Investigating Officer went to the spot, seized the relevant materials, examined the persons available and recorded their statements u/s 161 Cr.P.C, visited the hospital, conducted inquest over the dead bodies, issued police requisition for post mortem examination, seized relevant material objects and after completion of the entire investigation submitted charge sheet u/s 302/34 I.P.C. After perusing the police records and other materials and on being prima facie satisfied, learned S.D.J.M. took cognizance of the offence and committed the case for trial. 3. The plea of the accused persons was one of complete denial. The further plea of the defence is that both Bhagaban Sahoo and Padmalochan Panigrahi were hardened criminals and they have many enemies. They have become victim of their own misdeeds. It was further pleaded that the accused persons had absolutely no role to play and they have been falsely implicated. 4. In order to substantiate their case, the prosecution got examined twelve witnesses. Out of them P.Ws.11 and 12 were the two Investigating Police Officer, P.W.4 was the Medical Officer of Rourkela Govt. Hospital, who initially examined the two injured persons on police requisition, P.W.10 was the Medical Officer, who conducted autopsy of the dead bodies, P.Ws.8 and 9 were the two eye witnesses to the occurrence P.W.2 was a witnesses to the seizure, P.Ws. 1, 3, 5 and 7 did not support the prosecution case and turned hostile. On behalf of the defence two witnesses were examined. 5. Learned Ad hoc Addl. District and Sessions Judge after discussing the evidence in extenso and basing upon the evidence of the eye witnesses P.Ws.8. and 9 vis-a-vis inquest report and post mortem report came to the conclusion that the accused persons were squarely responsible for inflicting the injuries with an intention to cause the death of Bhagaban Sahoo and Padmalochan Panigrahi. Considering all the relevant aspects, learned Ad hoc Addl. District and Sessions Judge convicted the accused persons and sentenced them as stated earlier. 6. The order of conviction and sentence is challenged by Mr. Considering all the relevant aspects, learned Ad hoc Addl. District and Sessions Judge convicted the accused persons and sentenced them as stated earlier. 6. The order of conviction and sentence is challenged by Mr. Panda, learned counsel for the appellants mainly on the ground that learned Ad hoc Addl. District and Sessions Judge has not properly scrutinized the evidence available against the accused persons and on being morally swayed away, has convicted them on the basis of surmises and conjectures. It is stated that the evidence of eye witnesses do not stand the scrutiny of law and the same are full of contradictions. In absence of any corroboration, learned Ad hoc Addl. District and Sessions Judge should not have relied upon the evidence of aforesaid two eye witnesses, more so, because none of the independent witnesses have supported the prosecution case. Further, according to Mr. panda the evidence of P.Ws. 8 and 9 suffers from inherent improbabilities, infirmities and material contradictions and was no at all trust worthy. According to Mr. Panda learned Ad hoc Addl. District and Sessions Judge after rightly observing that previous enmity existed between Bhagaban Sahoo and Abhesh Roy has acted illegally and with materially irregularity in convicting the accused persons. In short, according to Mr. Panda the order of conviction cannot be sustained as the same is based on evidence which is not legally admissible. 7. Learned Addl. Government Advocate, on the other hand, submitted that it is a case of double murder inasmuch as, the appellants have assaulted and murdered two persons. The evidence establishes that they have committed the offence. Learned Ad hoc Addl. District and Sessions Judge has elaborately discussed the evidence and has come to the conclusion that the death was caused due to the injuries inflicted by the present appellants. The order of conviction and sentence, it is submitted, do not suffer from any infirmity and it is a fit case where the Criminal Appeals should be dismissed in limini. 8. To appreciate the submissions made before us, we went through the evidence, both oral and documentary meticulously. The evidence of P.Ws. 1, 3, 4, 5, 6 and 7 virtually do not support the prosecution case. Most of the said witnesses have turned hostile. Thus, the case of the prosecution hinges only on the evidence of three witnesses being P.Ws.2, 8 and 12. The evidence of P.Ws. 1, 3, 4, 5, 6 and 7 virtually do not support the prosecution case. Most of the said witnesses have turned hostile. Thus, the case of the prosecution hinges only on the evidence of three witnesses being P.Ws.2, 8 and 12. P.W.2 is a witness to the seizure of wearing apparels of the accused blood samples, nail clippings, etc. He was an A.S.I. of Police. His evidence does not reveal that the accused-appellants or some of them had committed the crime inasmuch as, he has not seen the occurrence. The other two witnesses being P.Ws. 8 and 12 were the eye witnesses to the occurrence. P.W.8 was the informant. In his evidence-in-chief he has clearly stated that the accused Abhesh Roy and Alok Jena were armed with sword, accused Md. Majid Chand was carrying a gupti and accused Raju a bhujali. It was further deposed that accused Abhesh Roy dealt blow with the sword on the head of Bhagaban Sahoo, consequently he fell down. Thereafter he instigated other accused persons to assault Bhagaban Sahoo and all of them indiscriminately started assaulting him. Padmalochan Panigrahi was standing nearby and protested and tried to save Bhagaban Sahoo. Being enraged accused Abhesh Roy dealt a blow with a sword to the lower abdomen of Padmalochan Panigrahi and also directed his associates not to spare Padmalochan Panigrahi, consequently all the accused persons also assaulted Padmalochan Panigrahi. P.W.8 has been cross-examined at length, but nothing could be elicited from him to disbelieve the story of the prosecution. Prosecution also relied upon the evidence of P.W.9, who is also an eye witnesses to the occurrence. His evidence fully corroborates the evidence of P.W.8, but then P.W.9 has not stated anything with regard to accused Alok Jena. The said witness was also cross-examined at length, but nothing contrary could be elicited from him. The evidence of P.Ws. 8 and 9 is corroborated by the injury report and post mortem report as well as the evidence of the doctor (P.W.10), who had conducted the post mortem examination. The said witness was also cross-examined at length, but nothing contrary could be elicited from him. The evidence of P.Ws. 8 and 9 is corroborated by the injury report and post mortem report as well as the evidence of the doctor (P.W.10), who had conducted the post mortem examination. The said report reveals that Padmalochan Panigrahi had sustained the following injuries:- (i) Incised injury of size 4"X 2" X 1" over middle of the left thigh anteriorly, (ii) Incised wound of size 4"X 2"X 1" over middle of the right thigh anteriorly and (iii) Incised wound of 2"X1" on the left scrotum and 2"X1" on the right scrotum. Similarly the doctor opined that Bhagaban Sahoo had sustained the following injuries:- (i) Parietal amputation of right elbow joint with sharp cutting wound of size 4"X2"X1" and 2"X2"X1" at anterior medial aspect of fore-arm, (ii) Sharp cutting wound of size 3"X1/2"X1" over left arm lateral aspect and 3X1.1/2"X1" over left palm wit parietal amputation of left palm, (iii) Incised wound of sizes 5"X3"X2" over left knee joint and 3"X1 "X1/2"X1" below left knee and 3"X2"X2" on right knee, (iv) Deep penetration wound 1" above right breast of size 10"X5" directing anterior-posteriorly deep to right lung and base of the heart and exit wound of size 3"X2" below left scapula, and (v) Incised wound of size 5"X2" over left parietal region 2 cm. above left ear. The doctor opined that the cause of death was due to haemorrhage and shock. It is pertinent to mention that though the occurrence took place in a market place surrounded by number of shops and at 7.30 P.M. which is a busy time no independent witness had supported the prosecution case. On the other hand, the seizure witness and some witnesses, who were present at the spot on the date and time of occurrence, being P.Ws.3, 5 and 7 turned hostile. The evidence of P.Ws.4 and 6 also do not help the prosecution case. The evidence of P.Ws.8 and 9 is criticized on the ground that they are related to the deceased Bhagaban Sahoo. But then law is well settled that mechanical rejection of evidence on the ground of interestedness would invariably lead to failure of justice and it is well known that close relatives of a murdered person are most reluctant to spare the real assailant and to falsely involve another person in place of assailant. But then law is well settled that mechanical rejection of evidence on the ground of interestedness would invariably lead to failure of justice and it is well known that close relatives of a murdered person are most reluctant to spare the real assailant and to falsely involve another person in place of assailant. (see Paramanda Mallick Vs. The State, ). 9. That apart, the person related to the deceased are natural and competent witnesses and their evidence deserves credence. There is no reason to discard their evidence as normally a relation of the deceased would implicate the real assailant of the deceased instead of falsely implicating another person. Of course, the rule of caution always prevails while appreciating the evidence of close relatives. The word "related" is not equivalent to interested. A witness is called interested only when he or she derives some benefit from the result of a litigation, or decree in civil cases or in seeing an accused persons punished. A person who is a natural witness and is only possible eye witness in the circumstances of a case, cannot be said to be interested witnesses. Thus, the evidence of P.Ws.8 and 9 cannot be disbelieved only on the ground that they are interested witnesses and the learned Ad hoc Addl. District and Sessions Judge has rightly relied upon their evidence. 10. The judgment is also assailed on the ground of non-examination of independent witnesses. The question is whether due to non-examination of independent witnesses, the prosecution case should be disbelieved, but then in the present day scenario, in different attitude of public regarding investigation of crimes is very much apparent and the public are generally reluctant to come forward to depose before the Court. It is also very much apparent that neither the prosecution nor the police is capable of giving protection to a witness so as to encourage him to come to the Court and depose against hardened criminals. It is therefore not correct to reject the prosecution version only on the ground that all the witnesses have not been examined and/or the witnesses examined have turned hostile. 11. In the case of Appabhai and Another Vs. State of Gujarat the Supreme Court held as follows:- Experience remind us that civilized people are generally sensitive, when crime is committed even in their presence. They withdraw both from victim and vigilante. 11. In the case of Appabhai and Another Vs. State of Gujarat the Supreme Court held as follows:- Experience remind us that civilized people are generally sensitive, when crime is committed even in their presence. They withdraw both from victim and vigilante. They keep themselves away from Court unless it is inevitable. They think crime like civil dispute is between two parties and they should not involve themselves. This kind of apathy of the general public is, indeed unfortunate, but it is there, every where, whether in village life, town or cities. One can not ignore this handicap with which investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case, for want of independent witnesses, must consider the spectrum of the prosecution version and search for the nugget of truck with regard to the probability, if any, suggested by the accused. The Court, however bear in mind that the witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at dastardly crime or an act of egregious nature, may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court therefore cannot reject their evidence merely because they behaved or reacted in an unusual manner. 12. With regard to the contention of Mr. Panda that as prosecution has totally failed to establish the "motive" for committing offence, the appellants are entitled to the benefit of doubt. We are however unable to agree with the contention of learned defence counsel, in view of the position of law that "motive" has its own relevance as a circumstance to consider in favour of the prosecution when other evidence and circumstances incriminating the accused persons are cogent, clear and reliable, conviction can be based on the same. (See Rajesh Govind Jagesha Vs. State of Maharastra reported in 2000 SAR 102). 13. The only other point which is urged by Mr. Panda, is that the prosecution totally failed to explain the injury sustained by some of the accused persons. The evidence of the doctors who have examined the accused persons revealed that in fact the accused had sustained grievous injuries. It also appears that the said injuries were inflicted during the same occurrence. Panda, is that the prosecution totally failed to explain the injury sustained by some of the accused persons. The evidence of the doctors who have examined the accused persons revealed that in fact the accused had sustained grievous injuries. It also appears that the said injuries were inflicted during the same occurrence. Thus, non-explaining the injuries caused to the accused persons goes on a long way to show that the prosecution witnesses have not come to this Court with clean hands. 14. A reading of the entire evidence and other materials available give an impression that the accused persons as well as the deceased were anti-social persons. Enmity existed between them for quite some time. The injury sustained by the accused-appellants revealed that there was free fight ensued between Bhagaban Sahoo and Padmalochan Panigrahi on one hand and the accused persons on the other resulting in the death of Bhagaban Sahoo and Padmalochan Panigrahi. Some contradiction appears in the evidence of both the eye witnesses inasmuch as P.Ws.8 and 9 do not whisper a word about the role played by accused-appellant Alok Jena. 15. In course of hearing, it appears that accused persons are in custody for quite some time. On a cumulative assessment of the entire facts and circumstances and on being satisfied that true facts have not been projected by the prosecution and there are materials available to suggest that the accused-appellants had taken part in a free fight which ensued between Bhagaban Sahoo, Padmalochan Panigrahi and appellants-accused persons, who sustained grievous injuries, this Court feels that ends of justice and equity will be better served if the conviction u/s 302/34 I.P.C. is set aside and instead all the appellant-accused persons are convicted u/s 304 Part-II I.P.C. and we direct accordingly. 16. In view of the evidence on record and the manner in which the death was caused, we sentence each of the appellants to undergo rigorous imprisonment for ten years and pay a fine of Rs. 10,000/-(rupees ten thousand) each, in default to undergo rigorous imprisonment for a further period of one year. The fine, if collected, be paid to the legal heirs of the deceased persons in equal share. It is needless to say that the period of sentence already undergone by the accused persons-appellants be treated as set off. With the aforesaid directions/modification both the Crl. Appeals are disposed of. S.C. Parija, J. 17. The fine, if collected, be paid to the legal heirs of the deceased persons in equal share. It is needless to say that the period of sentence already undergone by the accused persons-appellants be treated as set off. With the aforesaid directions/modification both the Crl. Appeals are disposed of. S.C. Parija, J. 17. I agree.