Judgment This appeal has been preferred against the judgment and order dated 14th September 1990 passed by the learned 2nd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 414 of 1981 arising out of Sasaram (T) P. S. Case No. 15(5) of 1980, G. R. No. 998 of 1980 by which Jamadar Dusadh (appellant no. 1) has been convicted and sentenced to rigorous imprisonment for life under Section 302, one year under Section 147 and one year under Section 379 of the Indian Penal Code, Ram Nandan Dusadh (appellant no. 2 died during the pendency of the appeal) has been convicted and sentenced to rigorous imprisonment for life under Section 302 and one year under Section 147 IPC, Shio Shankar Dubey has been convicted and sentenced to rigorous imprisonment for life under Section 302/149 and one year under Section 148 of IPC and rigorous imprisonment for six months under Section 27 of the Arms Act and appellant no. 4 Ram Pravesh Dubey has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 IPC and rigorous imprisonment for one year under Section 147 IPC. It has been directed that all the sentences awarded to the accused-appellants will run concurrently. 2. The prosecution case, according to fardbeyan of Raj Ballam Rai (P.W. 11), in brief, is that on 16.5.1980 the informant came to Sasaram court with his brother Raj Keshwar Singh (deceased). After finishing his work in the court the informant (P.W. 11) proceeded with his brother (deceased) for his residence near Sasaram Dharmshala, Raj Keshwar (deceased) was sitting in a rickshaw with his double barrel gun and the informant was following him by bicycle. When they reached near eastern side 50 to 60 yards away from Kargahar More, Dudhnath Dusadh (died), Jamadar Dushad (appellant no. 1), Rama Nand Dusadh (appellant no. 2) armed with lohbanda stopped the rickshaw of the deceased. Shiv Shankar Dubey-Mukhiya (appellant no. 3) armed with rifle and his brother Ram Pravesh Dubey (appellant no. 4) armed with lathi were also with them. All these persons pulled the Raj Keshwar Singh (deceased) from the rickshaw who tried to escape but could not and he was assaulted with Lohbanda and was dragged towards the southern end of the road by them. Mukhiya (appellant no. 3) was instigating to kill him. 4) armed with lathi were also with them. All these persons pulled the Raj Keshwar Singh (deceased) from the rickshaw who tried to escape but could not and he was assaulted with Lohbanda and was dragged towards the southern end of the road by them. Mukhiya (appellant no. 3) was instigating to kill him. The deceased Raj Keshwar Singh fell down, even thereafter he was assaulted by the accused with lathi. The informant Rajballav Rai ran away. Shiv Shankar Dubey shot fire, the informant could not see as to whether it hit the deceased or not. After a few minutes all the accused escaped towards southern side. The occurrence was witnessed by Ragho Ram Singh (P.W. 13) and Nagina Singh (not examined). It is further alleged that Jamadar Dusadh (appellant no. 1) also snatched the gun of the deceased when he fell down. Fard beyan (Ext. 6) was recorded by S. I., S. N. Singh (not examined) of Sasaram Police Station. 3. On the basis of fard beyan Sasaram (T) P. S. Case No. 15 of 1980 was instituted for the offence punishable under Sections 302, 379/34 IPC. After investigation charge-sheet was submitted under Sections 302, 149 IPC and 27 of the Arms Act. Cognizance was taken. The case was committed to the court of sessions. Charges were framed against the accused-appellants and Dudhnath Dusadh, who died during trial as such the trial abated against him, which they denied and claimed to be tried. The defence of the accused is that they have been falsely implicated in this case and no occurrence as alleged has been taken place. After trial the appellants have been convicted and sentenced by the impugned judgment as aforesaid. 4. This court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its charge against the appellants beyond shadow of reasonable doubts. 5. The prosecution has examined following witnesses to prove its charge:- P. W. 1 Ram Chandra Ojha, P. W. 2 Krishna Bihari Pathak, P. W. 3 Hira Singh, P. W. 4 Arun Kumar Mishra, P. W. 5 Bahadur Rai, P. W. 6 Bishwanath Singh, P. W. 7 Ram Naresh Singh, P. W. 8 Kuber Singh, P. W. 9 Bramhadeo Singh, P. W. 10 Dr. Naresh Prasad Roy, P. W. 11 Raj Ballabh Rai, P. W. 12 Sarjug Prasad, P. W. 13 Ragho Ram Singh, P. W. 14 Nand Gopal Singh, and P. W. 15 Ram Prasad Singh. 6. P. W. 1, P. W. 2, P. W. 3, P. W. 12 and P.W. 15 are formal witnesses. P. W. 1 has proved formal FIR (Ext. 1). P. W. 2 has proved writing of endorsement (Ext. 2) on the Fard beyan. P. W. 3 has identified the signature of the informant Raj Ballav Rai and his signature on the fard beyan which have been marked as Ext. 3 and 3/1. P. W. 12 is an advocate clerk. He has stated that two applications have been typed by him which have been marked as Ext. 5 and 5/1 and the signature thereon have already been marked as Ext. 3/3 and 3/5. P. W. 15 is also an advocate clerk who has proved writing of Sidhnath Singh, Police Officer and also proved certain paragraphs of case-diary of Sasaram P. S. Case No. 15(5)/80 (Ext. 9). 7. P. W. 4, P. W. 6, P. W. 7, P.W. 8 and P. W. 9 are hostile. They have not supported the prosecution case. P. W. 4 has proved his signature on the fard Beyan which has been marked as Ext. 3/2. However, they have stated that the deceased Raj Keshwar Singh was killed. 8. Now the evidence of the informant P. W. 11 is taken up for consideration. P. W. 11 has stated that on the date and time of occurrence he was returning to his house Dharmshala Road Sasaram after getting an application typed against the accused persons. His brother Rajkeshwar Singh (deceased) was going ahead on the rickshaw and he was following him by cycle. When they reached about 50 yards east of Kargahar More, G. T. Road he saw accused Dudhnath Dusadh, Jamadar Dushad (appellant no. 1), Ram Nandan Dushadh (appellant no. 2 died ), Ram Pravesh Dubey (appellant no. 4), Shivshankar Dubey @ Mainu Dubey (appellant no. 3). He has further stated that Dudhnath was armed with Lohband. Ramnandan and Rampravesh were armed with lathi and Shivshankar Dubey was armed with rifle. They pulled his brother (deceased) from the rickshaw and assaulted him with lathi and Lohband and dragged him towards the southern side of the road. Shivshankar Dubey (appellant no. 3). He has further stated that Dudhnath was armed with Lohband. Ramnandan and Rampravesh were armed with lathi and Shivshankar Dubey was armed with rifle. They pulled his brother (deceased) from the rickshaw and assaulted him with lathi and Lohband and dragged him towards the southern side of the road. Shivshankar Dubey (appellant no. 3) shot fire but he (P.W. 11) could not see as to whether the shot hit anyone or not. Shivshankar Dubey instigated the co-accused to kill the deceased at once. He has further stated that the licensee gun of the deceased was snatched away by Jamadar Dushad (appellant no. 1). After assault the accused fled away from the place of occurrence and his brother (deceased) died on the place of occurrence. While he (P.W.11) was with the dead body of the brother, the police officer came there and recorded his statement and he put his signature on the fard beyan (Ext. 3). He has further stated that due to enmity his brother was killed by the accused. At the time of occurrence Shivshankar Dubey was Mukhiya of his Gram Panchayat, Gorapakat Dihiri. Rambachan Singh, the nephew of P.W. 11 was also a candidate of Mukhiya who contested the election against Shivshankar Dubey. Due to this reason Shivshankar Dubey was angry with the deceased and as such he in collusion with other accused committed murder of the deceased. The other reason is that 3 to 4 days prior to this occurrence Bikram Dushadh, the brother of Dudhnath Dusadh and Jamadar Dusadh, the son of accused Ramnandan Dushad were sent to jail. They had suspicion that they were sent to jail at the instance of his brother (deceased). At the time of occurrence, Rajkeshwar Singh, the brother of the informant was the Mukhiya of Dhamtya Gram Panchayat, P.S. Navinagar, District Aurangabad and mostly he was living at Sasaram. The deceased had got typed four applications against accused and put his signature in presence of P.W. 11. He has identified his signatures on those applications which have been marked as Ext. 3/3 to 3/6. All these applications were kept by the deceased for sending them to the officers through registered post which were seized by the officer-in-charge from the place of occurrence. He has identified all the accused. He has identified his signatures on those applications which have been marked as Ext. 3/3 to 3/6. All these applications were kept by the deceased for sending them to the officers through registered post which were seized by the officer-in-charge from the place of occurrence. He has identified all the accused. In his cross-examination, he has stated that prior to the occurrence he has been lodging/contesting the cases in Sasaram court and knows some advocates. None of the advocates is his relative. He has admitted that on the date of occurrence there was no date of any case against him or his brother. In paragraph 26, he has stated that rickshawpuller was not known to him when the deceased was assaulted. Rickshawpuller fled away leaving the rickshaw. On the place of occurrence the police officer came after half an hour of the occurrence which he (P.W. 11) was present at the place of occurrence. The rickshaw was given under the control of Chaukidar by the police officer. The police officer seized the diary and other documents of the deceased from the place of occurrence. This witness has been cross-examined at great length but the prosecution has failed to demolish his evidence. 9. P. W. 5 has stated that the village Khushabu is at a distance of one and a half mile from his village (Chaubaya) and Katdhihari is at a distance of three kilometers and most of the people of both the villages are known to him. At the time of occurrence he was going to visit Shershah Ka Rauza (Maqbara of Shershah) with his wife. When he went 50 steps South of G. T. Road in the Rauza Road from G. T. Road, he saw the accused Ramnandan Dusadh, Dudhnath Dusadh, Jamadar Dushadh and Shankar Dubey escaping on the Roza Road. Dudhnath, Jamadar and Ramnandan Dusadh were armed with lohbandh and Shankar Dubey was armed with lathi. He (P.W. 5) went to the place of occurrence where the dead body of Rajkeshwar Singh was lying in the southern side of G. T. Road and Rajballav Rai (P.W. 11) was weeping. He told the name of all the four escaping persons to him. Rajballav also told him the names of the assailants as Dudhnath Dusadh, Jamadar Dusadh, Ramnandan Dusadh and Shankar Dubey. He has also identified them in the court. He told the name of all the four escaping persons to him. Rajballav also told him the names of the assailants as Dudhnath Dusadh, Jamadar Dusadh, Ramnandan Dusadh and Shankar Dubey. He has also identified them in the court. In his cross-examination, he has stated that while he had gone to the place of occurrence, he has asked his wife to sit in a medicine shop. He has denied that the deceased was his close relative; as such he has deposed a lie. 10. P. W. 13 has stated that after getting down from the bus at Kargahar More and going towards east of the More he saw that five persons were assaulting Rajkeshwar Singh (deceased) and he identified them as Dudhnath Dusadh (died), Jamadar Dusadh, Ram Nandan Dusadh, Rampravesh Dusadh, Pawal Dubey ( Shivshankar Dubey). Rajkeshwar Dubey had gun in his possession which was taken away by the accused. Rajkeswar succumbed to the injuries on the spot. He has identified all the accused in the court. He has been cross-examined by the accused. In his cross-examination he has also supported the prosecution case and has stated in paragraph 6 that he was knowing all the accused since last 20 years. In paragraph 7 he has admitted that he was married to the sister of Ramawadesh Singh and Ramawadesh Singh is the nephew of the deceased. He has denied the suggestion of the prosecution that due to relationship with the deceased he has deposed a lie. 11. P. W. 14 is the police officer who was posted as Officer-in-Charge of Sasaram Town Police Station. He has proved the formal FIR (Ext.1), Fardbeyan (Ext. 6). Inquest Report (Ext. 7), Seizure-list (Ext. 8). 12. P. W. 10 is the Civil Assistant Surgeon of Sadar Hospital, Sasaram who has held the post-mortem examination on 16.5.1980 at 12.10 P.M. on the dead body of Rajkeshwar Singh aged about 50 years identified by the Constable Sahdeo Singh and Shivsagar Singh and found the following ante-mortem injuries:- (i) Lacerated wound 2” X 1” with commuted fracture of occipital bone in two multiple pieces at back of head. Some fragments of bone had pierced into brain covering. There was collection of blood clot outside and inside durameter. Corresponding part of the brain was found softened and with lacerated injury. There was no blackening of margin of surrounding area or no tatooing. Some fragments of bone had pierced into brain covering. There was collection of blood clot outside and inside durameter. Corresponding part of the brain was found softened and with lacerated injury. There was no blackening of margin of surrounding area or no tatooing. (ii) Bruise 4” X 2” in front of face involving right eye brow, right malar bone and bridge of nose with multiple fracture of right mallar bone, nosal bone and right maxilla. (iii) Bruise 2” x 1” left and below the nose with fracture of left maxilla and lacerated cut of cheek from inside 1” x ½”. (iv) Abrasion 1” x 1/2” of upper lip right to mid-line. (v) Lacerated cut ½” x ½” left margin of tongue with blood clot in the mouth. (vi) Abrasion ½” x ½” at left knee. (vii) Abrasion 1” x ½” at left fore-arm. Injury Nos. (i), (ii), and (iii) are grievous in nature caused by hard blunt substance, may be lathi and Lohbanda. Injury Nos. (iv), (v), (vi), (vii) are simple in nature, caused by hard blunt substance, may be lathi and Lohbanda. Time elapsed since death within 12 hours. The post mortem-report has been marked as Ext. 4. In his cross-examination, P.W. 10 has stated that injuries mentioned above may also be caused by colliding with any hard blunt substance, may be bus, truck or any other hard and blunt substance. From the evidence of doctor it appears that time elapsed since death was within 12 hours. It appears that evidence of ocular evidence is corroborated by medical evidence of P.W. 10. P.W. 10 has specifically stated that death was caused due to shock and haemorrhage resulting from the above injuries which were sufficient to cause death in normal course of nature. 13. D. W. 1 Dasrath Ram examined on behalf of defence has stated that he has deposited the salary register of the employees of Sasaram Municipality for the year 1961 to 1963. In his cross-examination, he has proved the signature of the deceased Raj Keshwar Singh (Ext. 3/3). This register does not help the accused/appellants. 14. After the prosecution evidence the accused have been examined under Section 313 Cr. P.C. The evidence against the appellants has been placed during examination of the accused under Section 313 Cr. P.C., but no discrepancy has been shown on behalf of the appellants in the examination of the accused. 15. 3/3). This register does not help the accused/appellants. 14. After the prosecution evidence the accused have been examined under Section 313 Cr. P.C. The evidence against the appellants has been placed during examination of the accused under Section 313 Cr. P.C., but no discrepancy has been shown on behalf of the appellants in the examination of the accused. 15. It has been submitted by learned counsel for the appellants that in the instant case there are only two eye witnesses, P. W. 11 and P. W. 13, both are highly interested witnesses. P. W. 11 is the brother of the deceased and P.W. 13 is the son-in-law of the deceased, as such they are highly interested witness and their evidence should be scrutinized carefully. It has also been argued that according to the prosecution case the informant was near the deceased but he did not take any steps for taking the deceased to the hospital for treatment. He has also submitted that rickshaw puller has not been examined who was also one of the eye witnesses to the occurrence. 16. Learned counsel for the State has submitted that it has come in the deposition of the informant (P.W. 11) that when the deceased was pulled from the rickshaw by the accused and was being assaulted by the accused, the rickshaw puller fled away and did not come on the spot. The rickshaw was handed over to the chaukidar for custody. The rickshaw puller has not been examined during investigation, as such rickshaw puller was not available to the prosecution for his examination. Learned counsel for the State has further submitted that P. W. 11 and P.W. 13 may be interested witness but their evidence cannot be discarded on this ground. Their evidence has been scrutinized and found to be convincing by the learned trial court. 17. After hearing learned counsel for both the parties and on perusal of the record it appears that P. W. 11 and P. W. 13 are eye witnesses to the occurrence and they have seen and identified the accused assaulting the deceased which resulted into the death of the deceased on the spot itself. Soon after the assault by the accused the deceased succumbed to the injuries on the spot, as such it cannot be said that P. W. 11 has not taken any step for treatment of the deceased. Soon after the assault by the accused the deceased succumbed to the injuries on the spot, as such it cannot be said that P. W. 11 has not taken any step for treatment of the deceased. P. W. 5 has also seen the accused soon after the occurrence and his evidence also supports the prosecution case. On careful consideration of the prosecution evidence I find that their evidence is quite convincing and cannot be discarded only on the ground that they are interested witnesses. This view has been expressed in several decisions of the Hon’ble Supreme Court as well as High Court. One decision of the Hon’ble Apex Court may be referred; AIR 2001 SC 281 (State of Rajasthan vs. Hanuman). Paragraph 8 of this decision is quoted below:- “8. We have carefully perused the judgments passed by the learned Sessions Judge and by the High Court. We are of the view that both the reasons stated by the High Court in the impugned judgment are unsustainable. The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relations of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relation unless there are very strong and cogent reasons to accept such criticism. Further, from the testimony of the two ladies Smt. Badam and Chhoti whose presence at the spot was not disputed by the defence it is clear that they have described the incident in a clear and graphic manner. They have categorically asserted that respondent-Hanuman gave three blows with his axe on the head of Panchu. Though the witnesses were subject to searching cross-examination nothing material could be elicited from them which may cast a doubt on their credibility. The learned trial Judge who had the opportunity of marking their demeanor in the Court assessed their evidence and did not find any good reason to discard their testimony. In the circumstance the High Court committed an error in discarding their testimony on this ground.” 18. The ocular evidence is corroborated by the medical evidence of P.W. 10 who has held the post-mortem examination and submitted a report (Ext. 4). The doctor has also opined that the injury Nos. In the circumstance the High Court committed an error in discarding their testimony on this ground.” 18. The ocular evidence is corroborated by the medical evidence of P.W. 10 who has held the post-mortem examination and submitted a report (Ext. 4). The doctor has also opined that the injury Nos. 1, 2 and 3 were grievance in nature caused by hard blunt substance, may be by lathi and lohbadha and are sufficient to cause death in normal course of nature. It appears that all the accused by forming unlawful assembly have assaulted the deceased which has caused instant death of the deceased on the spot itself. 19. Considering the facts and circumstances, I do not find any ground to interfere with the impugned judgment of conviction and sentence. 20. In the result, this appeal is dismissed. 21. Appellant no. 2 died during the pendency of this appeal as such his appeal has already abated vide order dated 1.7.2013 passed in this appeal. It further appears that remaining appellants, Jamadar Dusadh, Shio Shankar Dubey and Ram Pravesh Dubey are on bail. Their bail bonds are cancelled and they are directed to be taken into custody to serve out the sentence imposed by the learned trial court. Shyam Kishore Sharma, J:- I agree. Appeal dismissed.