JUDGMENT : Kishore Kumar Mandal, J. The two appellants herein are father and daughter who have been held guilty by the learned trial court vide judgment of conviction dated 18.12.2012 passed in S.T. No. 104 of 2003 under section 302 IPC and vide order of sentence dated 19.12.2012 they have been sentenced to undergo R.I. for life and fine of Rs. 5000/- each with default clause. They have filed the present appeal assailing the aforesaid judgment of conviction and sentence. 2. The factual profile of the case, as unfolded in the Fardbayan (Ext.1), lodged by Ram Kuwar Singh (P.W.4) on 14.09.2001 at 11.30 hours and recorded by ASI Kedar Singh (P.W.8) of Mairwa police station, in brief, is that he was separated from his brother Radha Singh (appellant) several years ago but were living in one house separated by wall. On the relevant date, there was a quarrel in the morning between the appellant Radha Singh and his son (deceased) over flow of water from the hand pump which was pacified by him. His son thereafter went on the roof of the house which was unseparated. He heard the cry of his son and ran to the roof followed by his wife Dhanpatiya Devi (P.W.2) and his younger son Ashok Kumar Singh (P.W.1) and saw the deceased lying senseless on the roof having received an injury on his head. He could see the appellant Radha Singh and Saroj Singh (aged about 18 years) and co-accused Dhanu Singh (aged about 12 years) assaulting the deceased with the head of Lathi (hurra). They started raising cry. In the meantime, Sudarshan Singh, son of the appellant Radha Singh arrived with a Dhab (sharp-cutting weapon) in his hand along with his mother Lilawati Devi armed with bamboo. Co accused Sudarshan Singh threw weapon and took Lathi from co-accused Dhanu Singh and assaulted the informant whereas the wife of the appellant Radha Singh assaulted P.W.2, the wife of the informant and his son Ashok Kumar Singh (P.W.1). On Hulla, neighbours arrived and intervened whereafter the accused persons retreated. The injured who was lying senseless was carried to the hospital where the FIR was lodged. The injured was later referred to Gorakhpur for better treatment where in course of treatment he died and section 302 IPC was added. On Hulla, neighbours arrived and intervened whereafter the accused persons retreated. The injured who was lying senseless was carried to the hospital where the FIR was lodged. The injured was later referred to Gorakhpur for better treatment where in course of treatment he died and section 302 IPC was added. As the deceased died at Gorakhpur the death inquest proceeding was carried out at Gorakhpur and post mortem of the dead body was also conducted at Gorakhpur by the autopsy surgeon namely Dr. Ashray Narayan Lal Gupta (P.W.10) on 16.09.2001. Lodging of the Fardbayan initiated the investigation in course whereof statements of the witnesses were recorded, the place of occurrence was inspected in course whereof dried blood-stain marks were found on the roof top. Upon receipt of the post mortem report (Ext.3) the charge-sheet was filed against the present appellants and two other accuseds whereon cognizance of the offence was taken and the case was committed to the court of sessions. Be it noted that the trial of the co-accused Dhanu Singh was separated as he was found juvenile in conflict with law. The trial court framed the charges which were read over/explained to the appellants to which they pleaded not guilty. The defence is complete denial of their involvement in the case. 3. In order to bring home the charges, the prosecution, in all, examined 10 prosecution witnesses. P.W.1 Ashok Kumar Singh and P.W. 2 are the son and wife of the informant. P.W.3 Kamlavati Devi is the wife of the deceased. P.W. 4 is the informant. P.W. 5 Veer Bahadur Singh is the neighbour who cooperated the informant in carrying the injured to the hospital. He has flatly stated that his statement was not recorded by the I.O. during investigation. P.W. 6 is another co-villager and agnate of both sides who has been declared hostile by the prosecution and cross-examined. The defence also cross-examined him. P.W. 7 was then posted as Medical Officer at Mairva Primary Health Centre who had initially treated the deceased and prepared the report (Ext.2). He also medically examined. P.W. 1 Ashok Kumar Singh, P.W.2 Dhanpatiya Devi and the informant (P.W.4) and proved their injury reports as Ext. 2, 2/1, 2/2 and 2/3, respectively. P.W. 9 is the second I.O. of the case who took over investigation from P.W. 8 on 27.10.2001 and submitted the charge-sheet. He also medically examined. P.W. 1 Ashok Kumar Singh, P.W.2 Dhanpatiya Devi and the informant (P.W.4) and proved their injury reports as Ext. 2, 2/1, 2/2 and 2/3, respectively. P.W. 9 is the second I.O. of the case who took over investigation from P.W. 8 on 27.10.2001 and submitted the charge-sheet. P.W. 10 is the doctor who conducted the autopsy and proved the post mortem report (Ext. 3). On an appraisal of the evidence adduced by the prosecution, the learned trial court held the appellants guilty and sentenced in the manner noted above. 4. We have heard Mr. B.K. Sinha, Sr. Advocate appearing for the appellants and Mr. S. N. Prasad, APP for the State. 5. Mr. Sinha has urged that the deceased was a patient of epilepsy (Mirgi) and he suffered the attack and fell on the roof causing his death. In this connection, he has drawn our attention to the suggestion given by the defence to almost all the prosecution witnesses. It is submitted that although P.W. 6 has been declared hostile by the prosecution but in course of his cross examination by the defence he stated that the death of the deceased had occurred due to fall on account of the disease he was suffering with. He would also urge that P.W. 1 in his deposition has stated that his statement was first recorded by the I.O. The said statement of P.W. 1 has not been produced by the prosecution. The present FIR is hit by sections 161 and 162 of the Cr. P.C. The prosecution has made improvement in the case during the trial insofar as the manner of occurrence is concerned. He next submits that no independent witness has been produced by the prosecution which would have given credence to the evidence of the prosecution witnesses who all belonged to one family, particularly when the hostility between the two families who are full brothers is explicit. If the evidence of the informant is contrasted with the evidence of his wife and son, it shall appear that they had actually not witnessed the occurrence. The most competent witness, in the facts of the case, could have been P.W. 3, the wife of the deceased, who was present at the rooftop of the house. On going through her evidence it shall appear that she, too, had actually not seen the assault on her husband. The most competent witness, in the facts of the case, could have been P.W. 3, the wife of the deceased, who was present at the rooftop of the house. On going through her evidence it shall appear that she, too, had actually not seen the assault on her husband. It was a natural human conduct on her part to save her husband from assault if she had seen the assault but no such attempt was made by her as she candidly stated in para 2 that she did not save her husband from assault. 6. Mr. Prasad, in opposition, has submitted that merely because the witnesses are related to the informant, their evidence would not be discarded. It is the case where the informant, his wife (P.W.2) and son (P.W.1) received injury at the hands of the accuseds in course of commission of crime. Their presence at the place of occurrence becomes unquestionable. There is no serious contradiction in the ocular evidence led in by the prosecution except minor discrepancy. The conviction of the appellant by the learned trial court does not merit interference. 7. Before we proceed to scan the relevant evidence in the light of the submissions advanced at Bar, it shall be pertinent to first address the criticism of the prosecution case made by the appellants with regard to non production of the independent witness and the witnesses produced at the trial being partisan. The law on this point has been propounded in several cases by the Hon’ble Supreme Court as well as this Court. It is now well established that there is no legal principle in law that the evidence of the witnesses who are the family members or related to the informant shall be treated as partisan. What the law prescribes is a deeper scrutiny of their evidence. 8. It has been submitted that no independent witness has been produced to support the prosecution case. This is a serious lacuna in the case. The place of occurrence is the rooftop of the common house of both parties. No person who is not a member of the family or related to the family of both the defence and the prosecution is expected in normal course to have witnessed the occurrence. This is a serious lacuna in the case. The place of occurrence is the rooftop of the common house of both parties. No person who is not a member of the family or related to the family of both the defence and the prosecution is expected in normal course to have witnessed the occurrence. The court, as a matter of prudence, look for corroboration from the independent source if the ocular evidence adduced by the prosecution is found suspicious or deficient. As a general rule, it is difficult to hold that in case of non-corroboration of the prosecution case by the witness who is not related to the prosecution, the case put up by the prosecution shall fail. Any such view would defeat the ends of justice. 9. P.W. 10 held autopsy on the deceased and found the following two ante mortem injuries in the post mortem report (Ext.3):- 1. Stitched and 3 cm long along with 03 stitches on right side of head, 8 ½ cm above from right ear, on cutting wound is bone deep. 2. Contused swelling 12 cmx8 ½ cm with left side head, 3 ½ cm above and posterior from left ear. 10. He found the cause of death owing to head injury. The first injury was 03 cm long having three stitches on right side of head and 8 ½ cm above from right. It was found bone deep whereas another contused swelling was found measuring 12 cm x 8 ½ cm on the left side of head, 3 ½ cm above and posterior from left ear. Adverting to the evidence of P.W. 7 who first treated the injured/deceased of his injury at Mairva Primary Health Centre, we find that he could notice one lacerated wound on right side of vault 01 cm in length caused within four hours. He however, reserved his opinion and referred the injured for better treatment. The said injury was caused by hard and blunt substance. On going through his evidence and on perusal of Ext. 2, 2/1, 2/2 and 2/3, it is found the injury of superficial nature were found on the persons of P.W. 1, P.W.2 and the informant (P.W. 4). He however, reserved his opinion and referred the injured for better treatment. The said injury was caused by hard and blunt substance. On going through his evidence and on perusal of Ext. 2, 2/1, 2/2 and 2/3, it is found the injury of superficial nature were found on the persons of P.W. 1, P.W.2 and the informant (P.W. 4). Nonetheless these exhibits read along with the evidence of P.W.7 go to prove that P.Ws 1, 2 and 4(informant) did receive injury on or about the same time and their presence at the place of occurrence, as claimed by each of them in their respective depositions, cannot be disbelieved. It has been consistently held by court that an injured witnesses stands on a different pedestal as he himself has received injury which has not been suggested to be manufactured one. The relevant question would be whether they had appeared at the place of occurrence prior to the initiation of assault on the deceased by the appellant Radha Singh or at the time when the deceased upon receiving an assault by Lathi had fallen on the surface of the roof when the co-accuseds further also assaulted the deceased with the head of lathi (hurra). Keeping in view the above, we would examine the evidence of P.Ws. 1, 2 and 4 (informant). 11. Before we do so it is apt to examine first the evidence of P.W. 3, the wife of the deceased. She was present at the roof top when the quarrel between the deceased and the appellant Radha Singh was going on over flow of water from the hand pump. Immediately thereafter her husband came over the roof top and stood on the southern corner of the roof. The appellant Radha Singh came on the roof and assaulted her husband with Lathi as a result whereof he fell down. Thereafter his father-in-law P.W.4, mother inlaw P.W.2 and Devar P.W.1 arrived there who too were assaulted and injured. In her deposition she has, however, stated that her husband was standing on the roof facing south whereas she was sitting on the roof top facing north. She did not intervene in the assault and tried to save her husband. Thereafter his father-in-law P.W.4, mother inlaw P.W.2 and Devar P.W.1 arrived there who too were assaulted and injured. In her deposition she has, however, stated that her husband was standing on the roof facing south whereas she was sitting on the roof top facing north. She did not intervene in the assault and tried to save her husband. She has, however, candidly stated that her eyes were open when her father-in-law P.W. 4 and mother-in-law P.W.2 arrived to save the deceased but immediately thereafter her eyes blinked and closed and when she re-opened her eyes she could find her injured husband being shifted from the roof top on a cot. She also came down from the roof top and found hundreds of persons had congregated. In paragraph 2 of her cross examination she has stated that when the assault was being perpetrated on her husband who was standing on the southern corner of the roof she was sitting facing towards north. On a careful scrutiny of her evidence it is found that this witness has not claimed herself as eyewitness to the entire sequence of events in which the deceased was assaulted by the accuseds. We find it difficult to rely on her evidence as an eye witness to the occurrence. Her evidence, at best, proves that prior to assault there was a quarrel/scuffle between the deceased and his uncle, the appellant Radha Singh, whereafter the deceased came over the rooftop where the assault was perpetrated on him. 12. P.W.1 is the younger brother of the deceased. He was present in the house. He has stated that in the morning there was a hot/heated exchange of words between the deceased and the appellant Radha Singh which was pacified by his father. Soon thereafter, he heard the screaming of his brother from the rooftop of the house and went to the rooftop and saw the appellant Radha Singh assaulting his son with a Lathi. On being hit on his head, his brother fell down and became unconscious. Thereafter, the appellant Saroj Devi and other accused persons also assaulted him. The wife of the appellant Radha Singh and his son then came and assaulted him. The villagers thereafter arrived and brought the victim down from the rooftop and he was later carried to the Mairva hospital on a cot where he, too, was examined. Thereafter, the appellant Saroj Devi and other accused persons also assaulted him. The wife of the appellant Radha Singh and his son then came and assaulted him. The villagers thereafter arrived and brought the victim down from the rooftop and he was later carried to the Mairva hospital on a cot where he, too, was examined. In paragraph 7, he has narrated about the background. It is stated that his father and the appellant Radha Singh had separated several years ago. His grandfather had kept some property for himself and he wanted to sell his land in his name. After the assault on his brother the land was sold in his favour. P.W. 2 is the wife of the informant. She was present in the house. In the morning there was a quarrel over the flow of water between the deceased and the appellant Radha Singh which was pacified by her husband. His son then went to the rooftop and immediately she heard the cry of his son. She along with her husband and son (P.W.1) quickly went to the rooftop and saw the appellant Radha Singh inflicting one Lathi blow to the deceased who, on receiving the same, fell on the ground whereafter the appellant Raha Singh and Saroj Devi assaulted him with Lathi. She was also assaulted by other accused persons who are family members of the appellant Radha Singh. P.W. 6 Haricharan Singh and P.W. 5 Veer Bahadur Singh came and intervened. In para 4 she has, however, stated that when she went to the rooftop she found her son falling on the surface of the rooftop whereafter he was taken to the hospital. P.W. 4 is the informant and father of the deceased. He has similarly stated about the previous incident in the morning between deceased and the appellant Radha Singh and thereafter heard the cry of his son from the rooftop whereafter he along with his wife and P.W. 1 went on the rooftop and saw the appellant Radha Singh assaulting the deceased on his head as a result whereof he fell down. Thereafter the appellant Saroj Devi and other accused persons also assaulted him. He also raised cry whereafter the wife and the son of the appellant Radha Singh also assaulted him, his wife and son with a Lathi. The villagers thereafter arrived and intervened whereafter the accused persons left the rooftop. Thereafter the appellant Saroj Devi and other accused persons also assaulted him. He also raised cry whereafter the wife and the son of the appellant Radha Singh also assaulted him, his wife and son with a Lathi. The villagers thereafter arrived and intervened whereafter the accused persons left the rooftop. The injured was carried to the hospital where he was also treated of his injury. The fardbayan was recorded and the injured was referred to Gorakhpur for better treatment where in course of treatment he died the following day. In para 2 of his cross-examination, he has stated about the partition in the family in which some land was held by the father of the informant and the appellant Radha Singh. 13. Counsel for the appellants has submitted, referring to the evidence of the informant, that a huge amount/quantity of blood, according to this witness, had fallen on the rooftop, but the I.O. found only a scanty amount of dried blood on the rooftop which he did not collect. On the basis of the aforesaid, it has been argued that the place of occurrence has not been fixed. We do not find any substance in the said submissions. The ocular evidence of P.Ws 1,2 and 4 as well as the evidence of P.W. 3 clearly indicates the place of occurrence being the rooftop of the joint house of both parties which was unseparated. P.W. 7 also inspected the place of occurrence and found the rooftop of the common house of both the parties as the place where the deceased was assaulted. We have no doubt in our mind on going through the evidence of the aforesaid that the prosecution has fully established the place of occurrence. Non collection of blood or scanty amount of dried blood found by the I.O. in the face of the ocular evidence would not shake the prosecution case with regard to the place where assault was perpetrated on the deceased. 14. Adverting to the next submission of the learned counsel for the appellant that the first version of the prosecution case has not been produced by the prosecution. It my be noted that such submission has been advanced with reference to the testimony of P.W. 1. 14. Adverting to the next submission of the learned counsel for the appellant that the first version of the prosecution case has not been produced by the prosecution. It my be noted that such submission has been advanced with reference to the testimony of P.W. 1. In paragraph 3 of his deposition, he has stated that at about 10 o’ clock in the morning he reached along with the other injured the hospital at Mairva where he was treated and the police was called. His statement was first recorded there. It has been argued with much vehemence that the statement made by P.W. 1 should have been treated as an FIR as he has stated that the statements of other witnesses were recorded after him. The I.O. (P.W.7), in para 10 of his deposition, has stated that he reached the hospital and recorded the Fardbayan of the informant (P.W.4). At the time of recording of Fardbayan, P.W. 1 and P.W.2 were also present there. One Mukesh Kumar who was present at the hospital signed as a witness to the recording of the FIR. He could not record the statement of the informant/injured as he was not in position to make such statement. We are unable to find from the evidence of P.W.1 that his statement was recorded even before lodging of the FIR. He may be referring to the statement of the witnesses after recording of the FIR. In paragraph 16, the I.O. has stated that after giving his first aid to the informant in the hospital his Fardbayan was recorded. There is nothing on record to suggest that P.W. 1 was treated of his injury first by the doctor and thereafter the informant was treated. In the light of the above, we do not find much substance in the said contention of the appellant. 15. Mr. Sinha has repeatedly submitted that the deceased was a patient of epilepsy. On account of attack of epilepsy he had fallen on the rooftop and sustained injury. He was residing outside and owing to the disease/ailment he had come back home. In this connection, as noticed above, suggestions were given to all witnesses. However, P.Ws 1, 2 and 4 have categorically denied. They have deposed that the deceased was not suffering from any such disease/ailment. He was residing outside and owing to the disease/ailment he had come back home. In this connection, as noticed above, suggestions were given to all witnesses. However, P.Ws 1, 2 and 4 have categorically denied. They have deposed that the deceased was not suffering from any such disease/ailment. Apart from suggestion given by the defence, no evidence or document has been produced to establish that actually the deceased was suffering from epilepsy and he had suffered an attack. It is, thus, difficult to accept the said contention of the appellant merely on the basis of the statement of P.W. 6 who was declared hostile by the prosecution and the suggestion given to the witnesses. 16. Lastly, it has been submitted that the conviction of the appellant under section 302 IPC would not be sustainable in view of the attending facts of the case. What emerge from the prosecution evidence is that the appellant Radha Singh gave one Lathi blow on the head of the informant whereafter the deceased fell on the rooftop. The appellant Saroj Devi and other co-accused thereafter also assaulted the victim with the head of Lathi (hurra). The doctor (P.W.7) found one injury on the temporal part on the right side of head. 8 ½ cm above from right ear. It was found bone deep. The other injury was contused swelling of 12 cm over left side of head. The prosecution evidence is consistent of one assault by Lathi on the victim by the appellant Radha Singh whereafter the injured fell down. The second injury is on another part of the head which, in all probability, appears to have been caused due to fall of the victim on the hard rooftop. No other injury was found on the person of the deceased. Upon fall of the deceased the allegation is that the appellants Saroj Devi and Radha Singh further assaulted him with the head of Lathi (hurra). The deceased was lying flat on the rooftop. The accused appellants could have assaulted him again on the head with Lathi and not with hurra (edge of lathi). The evidence of the prosecution is that the assault on him continued for more than 4-5 minutes. There was enough time at the disposal of the appellant to assault the victim further with Lathi. This was, however, not so done. The accused appellants could have assaulted him again on the head with Lathi and not with hurra (edge of lathi). The evidence of the prosecution is that the assault on him continued for more than 4-5 minutes. There was enough time at the disposal of the appellant to assault the victim further with Lathi. This was, however, not so done. There is no connecting evidence to conclude that the assault was perpetrated on the deceased with an intention to wipe him out. The doctor (P.W.10) found only two injuries on the head of the deceased. He has opined that the death occurred due to clotting of blood owing to injury sustained by the victim on the head. The evidence is consistent that the appellant Radha Singh gave one blow by Lathi to the deceased as a result whereof the victim fell down on the rooftop and became senseless. Thereafter there is omnibus allegation of assault on the victim and he witnesses against the appellant Saroj Devi. We have already held that another injury on the temporal region of the deceased might have occurred due to fall on the hard rooftop. The assault made by the appellant Saroj Devi had not caused any serious injury to the deceased. We have also noticed that the witnesses including the informant who are said to have been assaulted by the appellant Saroj Devi and other co-accuseds received minor/superficial injury. Taking into account the aforesaid facts emerging from the records, in our view, it is difficult to sustain the conviction of the appellant Saroj Devi under section 302 IPC. She is held guilty under section 323 IPC for having caused simple/minor injury to the informant and other prosecution witnesses. The victim also did not receive any grave injury apart from those two injuries found by the doctor. Resultantly, the appellant Saroj Devi is acquitted of the charge under section 302 and is held guilty under section 323 IPC. 17. From the discussion made above, it is held that the case of the appellant Radha Singh will not fall within the ambit of any of the four clauses of section 300 IPC. However, in causing the injury to the victim on the vital part of the body, the appellant must be attributed the knowledge that by his act it was likely to cause the death of the deceased, though without any intention. However, in causing the injury to the victim on the vital part of the body, the appellant must be attributed the knowledge that by his act it was likely to cause the death of the deceased, though without any intention. Accordingly, the appellant Radha Singh is held guilty of culpable homicide not amounting to murder as per third clause of section 299 of the IPC and is held guilty under section 304, Part II of IPC. The Appellant Saroj Singh @ Saroj Devi, it has been pointed out, has remained in custody after conviction for nearly 15 months. She is sentenced to undergo R.I. for a period already undergone by her. She is discharged from the liability of the bail bond. The Appellant Radha Singh is sentenced to R.I. for 10 years, besides imposition of fine with default clause as directed by the learned trial court. 18. The appeal is allowed in part with the aforesaid modification in the conviction and sentence Sanjay Kumar, J. – I agree