JUDGMENT : Sanjay K. Agrawal, J. 1. Appellant No.1 Ram Prasad, appellant No.2 Ram Sharan,-appellant No.3 Sukhram and appellant No.4 Dhanaram were-tried by the Court of Additional Sessions Judge, Surajpur in-Sessions Trial No.357/1998 for offence punishable under-Section 302 of the IPC or in alternative, under Section 302 read with Section 34 of the IPC and by the impugned judgment dated 20-9-2000, they were convicted for the offence under Section 302 of the IPC and each of them were sentenced to undergo imprisonment for life and pay fine of Rs.1,000/- and in failure to pay the fine each of them has to undergo additional RI for a period of five months. 2. Questioning the legality and validity of the judgment of conviction recorded and sentence awarded, this appeal has been preferred by the appellants. 3. During the pendency of appeal, since appellant No.1 Ram Prasad has died which has been duly recorded in the order sheet dated 8-5-2006. This is how the appeal of appellants No.2, 3 and 4 is before us. 4. The prosecution case unfolded during the course of trial is as under: - Admitted facts (4.1) That, accused appellants No.1, 2, 3 and complainant Sukhsagar (PW-1) are real brothers. Accused appellant No.4 is son of accused appellant No.2 Ram Sharan. Deceased Premsai is son of Sukhsagar (PW-1). Kailaso (PW-4) is wife of Sukhsagar (PW-1). Seemavati (PW-3) is wife of deceased Premsai. Among accused appellants No.1 to 3 and complainant Sukhsagar (PW-1), at the time of occurrence, dispute with regard to land left by their uncle Budhu, who was issue-less and had given 2.50 acres of land to deceased Premsai as Premsai had looked after Budhu, was pending consideration before the revenue Court and there was serious dispute with regard to possession of that land and their relations were estranged. Prosecution case in brief (4.2) The accused appellants now stand convicted under Section 302 of the IPC. Appellant No.1 was carrying axe, whereas appellants No.2, 3 and 4 were carrying lathi. On 4-8- 1998, at about 7 p.m. in Village Singri, Police Station Ramkola, Distt. Sarguja, these accused persons inflicted four injuries upon deceased Premsai and consequently, he died while he was being taken to hospital by Sukhsagar (PW-1). Merg intimation Ex.P-1 was given by Sukhsagar (PW-1) on 4-8-1998 at about 23:45 hours. On 4-8- 1998, at about 7 p.m. in Village Singri, Police Station Ramkola, Distt. Sarguja, these accused persons inflicted four injuries upon deceased Premsai and consequently, he died while he was being taken to hospital by Sukhsagar (PW-1). Merg intimation Ex.P-1 was given by Sukhsagar (PW-1) on 4-8-1998 at about 23:45 hours. FIR Ex.P-2 was registered on the basis of merg intimation on 5-8-1998 and the same was lodged by Sukhsagar (PW-1). Inquest Ex.P-4 was conducted on 5-8-1998. Memorandum statement Ex.P-5 of appellant No.1 Ram Prasad was recorded on 5-8-1998 and on the basis of his memorandum, tangi was seized vide Ex.P-13 on 5-8-1998. Thereafter, memorandum statement Ex.P-6 of appellant No.2 Ram Sharan was recorded on 5-8-1998 and on the basis of his memorandum, lathi was seized vide Ex.P-14 on 5-8-1998. Likewise, memorandum statement Ex.P-7 of appellant No.4 Dhanaram was recorded on 5-8-1998 and on the basis of his memorandum, lathi was seized vide Ex.P-9 on 5-8-1998. Memorandum statement Ex.P-8 of appellant No.3 Sukhram was recorded on 5-8-1998 and on the basis of his memorandum, tangi was seized vide Ex.P-10 on 5-8-1998. The police also seized battle axe from the spot vide Ex.P-11. Thereafter, body of deceased Premsai was sent for postmortem and postmortem was conducted by Dr. (Smt.) Subhadra Paikra (PW-12) vide Ex.P- 31A. Autopsy surgeon found four injuries viz., two lacerated wounds, one abrasion and one incised wound over the body of the deceased and she opined that death of Premsai was on account of head injury and excessive bleeding. (4.3) The police after completion of investigation, charge-sheeted the appellants under Section 173 of the CrPC. The prosecution in order to support its case examined 12 witnesses and exhibited documents Exs.P-1 to P-31B. The appellants entered into trial and abjured their guilt and exhibited documents Exs.D-1 & D-2, however, no witness was examined in their support. They have denied the incriminating evidence put to them under Section 313 of the CrPC. (4.4) The learned Additional Sessions Judge by its impugned judgment relying upon oral, medical and circumstantial evidence convicted the appellants as stated above and sentenced them as detailed above in the opening paragraph of the judgment against which this appeal has been preferred by the appellants after having been convicted by the said Court, under Section 374(2) of the CrPC. 5. Dr. 5. Dr. Rajesh Pandey, learned counsel for the appellants, would submit that the prosecution has failed to bring home the offence and there is no substantive evidence in shape of ocular and circumstantial evidence to bring home the offence against the appellants. He would further submit that Roopsai (PW-2) and Kailaso (PW-4) cannot be the eyewitnesses to the incident. Testimony of Seemavati (PW-3), wife of the deceased, has not been corroborated with the testimony of Kailaso (PW-4), mother of the deceased. He would also submit that participation and presence of appellant No.4 Dhanaram is questionable because of the testimony of Roopsai (PW-2) in his statement before the Court. He would also submit that the deceased himself was holding tabbal and entered into the field of Ram Sharan – appellant No.2 for assaulting the appellants. Suggestions given by the appellants have been denied by Roopsai (PW-2), Seemavati (PW-3) and Kailaso (PW-4). Tabal was recovered from the spot and dead body was found in the field of Ram Sharan. In alternative, he would submit that the injuries might have been caused to the deceased in exercise of the right of private defence of property, therefore, the offence would fall under Section 304 Part-II of the IPC. Lastly, he would submit that the trial Court has framed charges under Section 302 of the IPC, in alternative, under Section 302 read with Section 34 of the IPC, but the appellants were convicted only for offence under Section 302 of the IPC. In such circumstances, only individual act of each accused appellant has to be seen and there is no common intention, therefore, they are entitled to be acquitted. Concluding his argument he would submit that the position now emerges in this appeal is that the appeal so far as appellant No.1 Ram Prasad abates due to his death and involvement of appellant No.4 Dhanaram becomes doubtful due to exculpatory evidence given by Roopsai (PW-2) and thus, only two appellants i.e. appellants No.2 and 3 require serious consideration. However, appellants No.2 and 3 were carrying lathis and Roopsai (PW-2) has deposed that at the time of occurrence it was dark. Kailaso (PW-4) has deposed that when she reached the spot, nobody, except appellant No.1 Ram Prasad and his wife, was present. However, appellants No.2 and 3 were carrying lathis and Roopsai (PW-2) has deposed that at the time of occurrence it was dark. Kailaso (PW-4) has deposed that when she reached the spot, nobody, except appellant No.1 Ram Prasad and his wife, was present. Further, it has not been proved as to who caused fatal blow to the deceased and common intention has also not been proved by the prosecution. Therefore, the impugned conviction deserves to be set-aside and the appellants be acquitted of all the charges. 6. On the other hand, Mr. Vinod Deshmukh, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, would support the impugned judgment and submit that the prosecution has clearly brought legal evidence of clinching nature to bring home the offence under Section 302 of the IPC and which cannot be contended successfully that the prosecution has not brought sufficient evidence in shape of oral, circumstantial and medical evidence to warrant conviction as such, the appellants have rightly been convicted and no interference is called for in this appeal, the appeal deserves to be dismissed and conviction and sentences awarded deserve to be confirmed. 7. We have heard learned counsel for the parties, given thoughtful consideration to the submissions made herein-above and also gone through the record with utmost circumspection. 8. The first question for consideration would be whether the death of Premsai was homicidal in nature. 9. Dr. (Smt.) Subhadra Paikra (PW-12) has conducted postmortem over the body of the deceased. She found four external injuries on his body – two incised wounds, one is on left shoulder with compound fracture whereas another is lacerated wound on parietal region of head and there was fracture. On internal examination, both the parietal bones of head were found fractured and there was serious blood clotting. According to her, cause of death was shock due to intra-cranial and extra-cranial haemorrhage and death was homicidal in nature. She has also opined that the injuries suffered by the deceased could be caused by the wooden stick (danda) seized vide Exs.P-22A, P- 23A and P-24A and her report has been proved as Exs.P-31A and 31-B. From the evidence of the doctor who has conducted autopsy, it is quite clear the death caused was homicidal in nature and it is duly established by the prosecution. 10. Now, we shall come to the ocular evidence. 11. Roopsai (PW-2) is eyewitness. 10. Now, we shall come to the ocular evidence. 11. Roopsai (PW-2) is eyewitness. He is neighbour of deceased Premsai. He states that on the date of occurrence, deceased Premsai was sitting in his house and on that day, one of the accused/appellants – appellant No.3 Sukhram untied the buffaloes kept in the house of Premsai despite protest by wife of Premsai – Seemavati (PW-3) and mother of Premsai – Kailaso (PW-4). He further states that appellant No.3 Sukhram untied the buffaloes and he was taking all the buffaloes, both the ladies protested and told not to take the buffaloes from their house despite that he had taken the buffaloes. Thereafter, Premsai came back to house and on being informed that Sukhram (A-3) had taken the buffaloes, he immediately reached to the field of makai (a kind of pulse), at that time, appellant No.3 Sukhram said, “now Premsai had come” and all the accused persons appellants No.1 to 4 assaulted him. Appellant No.3 Sukhram assaulted Premsai by lathi, appellant No.1 Ram Prasad (since deceased) assaulted Premsai by axe and appellant No.2 Ram Sharan assaulted Premsai by lathi but appellant No.4 Dhanaram has not caused any injury to Premsai, and thereafter, they ran away. He further states that he (PW-2), Prakash and Ramdulari brought Premsai to home and thereafter, his father Sukhsagar (PW-1) was called and Premsai was taken to Bhaisamuda and from there he was taken to Pratappur hospital by bus, and one hour after reaching the hospital, Premsai died. In the cross-examination, he maintained that the incident occurred in the field of appellant No.2 Ram Sharan and buffaloes were grazing in the field of Premsai. In paragraph 15 of his evidence, he has maintained that accused/appellant No.4 Dhanaram reached after the incident as at that time appellants No.1 to 3 were running from the spot. Though this witness has been subjected to lengthy cross-examination, but he has maintained his version that appellant No.1 caused injury by axe and appellants No.2 and 3 caused injury by lathi by which Premsai suffered injuries and succumbed to death. However, he has also clearly stated that appellant No.4 Dhanaram has not caused injury and he reached to the spot after the incident took place when appellants No.1 to 3 were running away from the place of incident. However, he has also clearly stated that appellant No.4 Dhanaram has not caused injury and he reached to the spot after the incident took place when appellants No.1 to 3 were running away from the place of incident. This witness also states that there was a dispute pending between the parties in regard to land. 12. Seemavati (PW-3) – wife of deceased Premsai, has supported the prosecution version that her husband after tying the buffaloes in his house had gone to the house of Roopsai, at that time, her mother-in-law Kailaso (PW-4) was also present in the house and appellant No.3 Sukhram came to her house calling Premsai and started untying the buffaloes kept in her house despite protest by her and her mother-in-law. Appellant No.3 Sukhram took the buffaloes to the field of makai sown by Premsai and despite protest by mother Kailaso, Premsai reached to the field and then Sukhram called other accused persons whereupon appellant No.1 Ram Prasad (since deceased) caused assault on Premsai by axe, appellant No.2 Ram Sharan caused assault by lathi and appellant No.3 Sukhram also caused assault by lathi and by which Premsai suffered injuries and on being taken to hospital, he died. She also clearly states that Budhu – uncle of Premsai, had given land to her husband Premsai and for which dispute was pending between the parties. In her cross-examination, she has admitted that there is a land dispute pending between the parties which was owned by uncle of Premsai – Budhu and it was given to her husband Premsai by his uncle Budhu. In cross-examination, number of questions have been put to her, but she has maintained the prosecution version by stating so. She has stated that assault was made by appellants No.1, 2 and 3, appellant No.1 made assault by axe and appellants No.2 and 3 by lathi. 13. Kailaso (PW-4) is mother of the deceased who was present in the house on the day of occurrence and she has partly supported the case of the prosecution. She has stated that assault was made by appellants No.1, 2 and 3, appellant No.1 made assault by axe and appellants No.2 and 3 by lathi. 13. Kailaso (PW-4) is mother of the deceased who was present in the house on the day of occurrence and she has partly supported the case of the prosecution. She has clearly stated that on the date of incident, she was in the house and in the late evening appellant No.3 Sukhram reached to her house and asked about Premsai and on being informed that Premsai is not available, he untied the buffaloes kept in the house and taken all the buffaloes to the field of makai sown by Premsai and her daughter-in-law Seemavati (PW-3) also reached to the spot following Sukhram and thereafter, Premsai reached to the house. She further states that when she reached to the place of incident, axe was being taken by wife of appellant No.1 Ram Prasad from him (A-1). So what is clear is that she is not eyewitness to the incident, but she has proved the fact that accused/appellant No.3 Sukhram came to their house, asked for Premsai, untied the buffaloes and taken them to the field of makai sown by Premsai which was followed by her daughter-in-law Seemavati (PW-3), as such, she has proved the prosecution case to the extent of conduct of appellant No.3 Sukhram that he came to her house, asked for Premsai, untied the buffaloes and took them to the field of makai sown by Premsai and the buffaloes were grazing makai sown by deceased Premsai. 14. Singarsai (PW-5) has also been examined. He has stated that he was present at the time of occurrence and there is a dispute pending between deceased Premsai and the accused/appellants as Budhu, who was issue-less, has registered land in favour of Premsai. He is stated to have seen the occurrence. 15. FIR has been lodged by father of the deceased Sukhsagar (PW- 1) as he was informed by Prakash and he lodged marg intimation Ex.P-1 and thereafter, FIR was registered vide Ex.P-2. He has identified the dead body of deceased Premsai. He has also admitted that Budhu was uncle of Premsai and also uncle of accused/appellants No.1, 2 and 3. 15. FIR has been lodged by father of the deceased Sukhsagar (PW- 1) as he was informed by Prakash and he lodged marg intimation Ex.P-1 and thereafter, FIR was registered vide Ex.P-2. He has identified the dead body of deceased Premsai. He has also admitted that Budhu was uncle of Premsai and also uncle of accused/appellants No.1, 2 and 3. Budhu and Budhu's wife died issue-less and Budhu has executed a registered deed in favour of Premsai on account of which dispute was there between the parties, as the appellants were also claiming share in the property of Budhu. 16. Before proceeding further, the question for consideration at this stage, would be, whether the evidence of relatives of the deceased is admissible. The law on the subject regarding admissibility/acceptability or otherwise of the testimony of interested witnesses is very well settled by Their Lordships of the Supreme Court in umpteen number of cases. Few of them may be noticed herein profitably and usefully. 17. Their Lordships of the Supreme Court recently, in the matter of Waman and others v. State of Maharashtra, (2011) 7 SCC 295 taking into consideration its earlier decisions in the matters of Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 , Balraje v. State of Maharashtra, (2010) 6 SCC 673 and other decisions in this regard, have held that the evidence of such interested witnesses should be scrutinized with a little care as a rule of prudence, not as a rule of law and the fact being relative cannot by itself discredit the evidence. Their Lordships concluded in paragraph 20 of Waman's case (supra) as under: - “20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care.” 18. In light of aforesaid pronouncement, if the testimonies of eyewitnesses are examined, though they are relatives of the deceased, it is quite clear that Roopsai (PW-2) and Seemavati (PW-3) are eyewitnesses and they have clearly seen the incident. In light of aforesaid pronouncement, if the testimonies of eyewitnesses are examined, though they are relatives of the deceased, it is quite clear that Roopsai (PW-2) and Seemavati (PW-3) are eyewitnesses and they have clearly seen the incident. Both the witnesses are consistent and have maintained that on the date of incident, on account of preexisting land dispute pending between the parties, particularly for the land having been given by their uncle Budhu to deceased Premsai, appellant No.3 Sukhram came to the house of the deceased and asked about him and when he was not available in the house, he untied the buffaloes of the deceased and taken them to the field of makai sown by the deceased and got them grazed there. Appellant No.3 Sukhram was followed by wife of the deceased Seemavati (PW-3) and in the meanwhile, Premsai reached to the house and on being informed by his mother and despite her protest, he reached to the spot where the accused/appellants, except accused/appellant No.4, were present. Roopsai (PW-2) and Seemavati (PW-3) have clearly stated that assault was made by appellant No.1 Ram Prasad (since deceased) by axe and assault was made by appellants No.2 and 3 by lathi and by which Premsai suffered injuries and died thereafter. On the memorandum statement Ex.P-6 of appellant No.2 Ramsharan, lathi has been seized from him vide Ex.P-14. Likewise, on the memorandum statement Ex.P-8 of appellant No.3 Sukhram, lathi has been seized from him vide Ex.P-10. Bloodstained cloth was also seized vide Ex.P-17 in which bloodstains were found. Axe was also seized from appellant No.1 Ram Prasad vide Ex.P-13. 19. Thus, the eyewitnesses particularly, Roopsai (PW-2) and Seemavati (PW-3) are consistent and unshaken in their testimonies. Their part of statement has also been supported by mother of the deceased – Kailaso (PW-4). Lathi has also been seized though bloodstains have not been proved on the lathi and axe, but bloodstains have been found on the clothes of Sukhram (A-3) and Dhanaram (A-4) in the chemical examination report. Thus, their ocular evidence is acceptable. 20. Thus, from the aforesaid discussion, it is quite apparent that death of deceased Premsai was homicidal in nature. Lathi has also been seized though bloodstains have not been proved on the lathi and axe, but bloodstains have been found on the clothes of Sukhram (A-3) and Dhanaram (A-4) in the chemical examination report. Thus, their ocular evidence is acceptable. 20. Thus, from the aforesaid discussion, it is quite apparent that death of deceased Premsai was homicidal in nature. Motive for death was also clearly established by the prosecution, as uncle of appellants No.1 to 3 and uncle of deceased Premsai had executed a registered deed in favour of Premsai giving 2.50 acres of land to him in which appellants No.1 to 3 are claiming share and the dispute is pending consideration before the revenue court on account of which they were having strained relations. 21. Roopsai (PW-2) and Seemavati (PW-3) are eyewitnesses to the incident. They have clearly supported the incident that the assault was made by appellants No.1, 2 and 3 who have caused axe blow and lathi blow to deceased Premsai by which he suffered lacerated and incised wounds. Lacerated wound could be caused by lathi and incised wound could be caused by axe. It has also been established by medical evidence through the doctor who conducted autopsy and who has clearly opined that the injuries inflicted upon the deceased can be caused by the weapons seized i.e. lathi and axe. On the basis of memorandum statements, lathi has been seized though bloodstains on lathi and axe has not been established, but that would not entitle the appellants to get acquittal from the offence in question. Thus, it is established that Premsai died on account of injuries inflicted by appellants No.1, 2 and 3. 22. So far as appellant No.4 Dhanaram is concerned, Roopsai (PW- 2) has clearly stated in paragraphs 2 and 3 of his evidence that Dhanaram reached to the spot after the commission of offence when appellants No.2 and 3 were running away from the place of occurrence. There is no reason not to accept the statement of Roopsai (PW-2) that no injury was caused by Dhanaram. It is pertinent to mention that though charge under Section 302 of the IPC or in alternative under Section 302 read with Section 34 of the IPC was framed, but the trial Court has convicted each of the appellants under Section 302 of the IPC and therefore overt-act of each of the appellants would be necessary. It is pertinent to mention that though charge under Section 302 of the IPC or in alternative under Section 302 read with Section 34 of the IPC was framed, but the trial Court has convicted each of the appellants under Section 302 of the IPC and therefore overt-act of each of the appellants would be necessary. No appeal has been preferred by the State holding that they should have been convicted with the aid of Section 34 of the IPC. Roopsai (PW-2) has stated in his evidence that appellant No.4 Dhanaram has not caused any injury to deceased Premsai and there is no overt-act attributed to Dhanaram. 23. On the basis of aforesaid analysis, we hold that the prosecution has been able to bring sufficient evidence against appellants No.1 to 3 in the form of ocular, medical and circumstantial evidence to prove the offence of Section 302 of the IPC beyond reasonable doubt, whereas, the prosecution has miserably failed to prove the offence against appellant No.4 Dhanaram beyond reasonable doubt. Thus, we hereby hold as under: - 1. Since appellant No.1 Ram Prasad had already died, the appeal so far as it relates to him abates. 2. Appellants No.2 and 3 – Ram Sharan and Sukhram, respectively, are guilty of the commission of offence under Section 302 of the IPC and the learned Additional Sessions Judge is absolutely justified in convicting them for offence under Section 302 of the IPC and sentences have rightly been awarded to them. We hereby affirm the judgment of conviction and order of sentence recorded by the trial Court qua appellants No.2 and 3 and the appeal so far as they are concerned, is dismissed. They are on bail. Their bail bonds are cancelled. They are directed to surrender themselves within ten days from today to serve the remaining sentence imposed upon them and if they do not surrender, the trial Court will secure their arrest. 3. Appellant No.4 Dhanaram is acquitted of the charge alleged against him. Consequently, the impugned judgment dated 20-9-2000 passed by the Additional Sessions Judge, Surajpur in Sessions Trial No.357/1998, qua appellant No.4 Dhanaram is hereby set aside. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 4. The criminal appeal is partly allowed.