JUDGMENT : Shree Chandrashekhar, J. Prakash Yadav was murdered by his wife and her paramour in the night of 07/08.09.2008. Barhi (Padma) PS Case No.175 of 2008 was registered on 07.09.2008 under section 302/34 of the Indian Penal Code against Jitendra Kumar @ Kahar and Munni Devi. In her fardbeyan which was recorded at 03:30 AM on 07.09.2008, Arti Kumari who is the daughter of the deceased has stated that Jitendra Kahar had illicit relationship with Munni Devi, her mother, for the last 4-5 years. In absence of her father, Jitendra Kahar would stay in the house with her mother and whenever she protested to the visits of Jitendra Kahar in the absence of her father her mother would beat her. She has further stated that her father had also scolded her mother for her illicit relationship with Jitendra Kahar. On 06.09.2008, at around 02:00 AM, Jitendra Kahar knocked the door while her father was sleeping in a room on the eastern side of the house. He was carrying a dab (dagger) which is generally used for chopping animals like goat. Her mother opened the door and Jitendra Kahar attacked her father with dab with an intention to kill him. Her father was crying bachao-bachao but her mother Munni Devi did not save him. The informant has stated that when she came to the room of her father she was pushed away by her mother while Jitendra Kahar continued indiscriminate attack on her father. On the basis of the fardbeyan of Arti Kumari a formal First Information Report was drawn-up; after the investigation a charge-sheet was filed against Jitendra Kahar and Munni Devi, and; a charge under section 302/34 of the Indian Penal Code was framed against them on 22.07.2009. 2. The prosecution has examined 14 witnesses to prove the charge against the accused, the informant is PW2. PW1 who is the younger brother, PW3 who is the son, PW4 who is the father, PW5 who is the mother and PW6 who is the sister-in-law of the deceased have deposed in the Court that the accused have eliminated Prakash Yadav due to their illicit relationship. PW1 who is the younger brother, PW3 who is the son, PW4 who is the father, PW5 who is the mother and PW6 who is the sister-in-law of the deceased have deposed in the Court that the accused have eliminated Prakash Yadav due to their illicit relationship. PW9-Naresh Kumar and PW10-Dilip Kumar @ Pappu are the seizure witnesses who have proved the seizure-memo vide Exhibit-6/2 and their signatures thereon vide Exhibit-6 and 6/A. PW11, PW13 and PW14 are the police officers who were involved in investigation of the case at different point of time. PW11-Uttam Chand Pandey was the second investigating officer of the case and PW12-Pritam Mahto is the chowkidar posted at Padma Outpost who has produced the crime weapon and blood stained vest belonging to Jitendra Kahar in the Court. PW13-Madan Kumar Sharma has proved signature of the Director of State Forensic Science Laboratory, Ranchi and PW14-Gazi Safdar Hayat is the officer-in-charge, Padma Outpost who had recorded fardbeyan of Arti Kumari and seized the crime weapon and blood stained vest from the house of Jitendra Kahar. 3. The learned Sessions Judge-I, Hazaribagh has held that the testimonies of the related witnesses were consistent and these witnesses have corroborated each other on the material aspects of the case. The learned trial Judge has further held that the medical evidence leaves no manner of doubt that Prakash Yadav died due to injuries caused by Jitendra Kahar and the accused committed his murder in a pre-arranged plan in furtherance of common intention. 4. The learned trial Judge has held as under: “31. I have gone through the whole evidence of prosecution and entire case record but inspite of my best endeavour, I did not find any cogent and convincing reason to disbelieve and discard the evidence of Arti Devi (PW2), Ajay Kumar Yadav (PW3), Binod Yadav (PW1), Ramdas Yadav (PW4), Jaswa Devi (PW5) and Lalita Devi (PW6), which is fully consistent and corroborated with each other and also to the Fardbayan of the informant Arti Devi (Kumari) in its main aspect. Evidence of these witnesses is also fully consistent with the evidence of Doctor Binay Kumar (PW7) and his post-mortem examination report (Ext.3). Evidence of these witnesses is also fully consistent with the evidence of Doctor Binay Kumar (PW7) and his post-mortem examination report (Ext.3). The injuries inflicted on the person of the deceased Prakash Yadav leaves no manner of doubt that the injuries were caused by the accused Jitendra Kumar alias Kahar and the deceased Prakash Yadav breathed his last on the spot due to the injuries inflicted on his person by the accused Jitendra Kahar and the accused Jitendra Kahar has committed murder of the deceased Prakash Yadav in furtherance of common intention in a pre-arranged plan manner with the accused Munni Devi. 32. In the aforementioned facts and circumstances, having given anxious and deepest consideration of the evidence placed on the record and also contentions raised at Bar, I am of the considered opinion that the prosecution has led positive, convincing and credible evidence to prove the presence of the accused Jitendra Kumar alias Kahar in the house of the deceased Prakash Yadav along with the accused Munni Devi at the relevant time of occurrence and participation of both the accused persons, namely, Munni Devi and Jitendra Kumar alias Kahar in commission of murder of the deceased Prakash Yadav and I see ring of truth in the evidence of aforementioned prosecution witnesses and I am of the considered view that prosecution has led cogent, reliable and unimpeachable evidence to bring home the charge u/s.302/34 of the Indian Penal Code levelled against the accused Munni Devi and Jitendra Kumar alias Kahar and in view of the matter, I find guilty to both the accused persons, namely, Munni Devi and Jitendra Kumar alias Kahar u/s. 302/34 of the Indian Penal Code and convict them, accordingly.” 5. In Sessions Trial Case No.203 of 2009, the appellants were convicted and sentenced to RI for life and a fine of Rs.10,000/-each under section 302/34 of the Indian Penal Code with a default stipulation to suffer further imprisonment of RI for six months in default of payment of the fine amount. 6. The material witnesses examined by the prosecution -PW1, PW2, PW3, PW4, PW5 and PW6; are intimately related to the deceased and therefore their evidence has been challenged as tainted. 7. PW1 who is the brother of the deceased has deposed in the Court that he has seen Jitendra Kahar fleeing away with a blood stained dagger and cloth in his hand. 7. PW1 who is the brother of the deceased has deposed in the Court that he has seen Jitendra Kahar fleeing away with a blood stained dagger and cloth in his hand. PW2, the informant is consistent in her evidence in the Court. In the cross-examination the defence has elicited from her that her father and mother were in another room which was closed and on that basis it is contended that she is not an eyewitness. But it is her evidence that when her father raised alarm (bachao-bachao) she rushed to his room and saw that Jitendra Kahar was assaulting her father with dab. PW3 was aged about 12 years when he was examined in the Court. In “Wheeler v. United States”159 U.S. 523 (1895), Brewer J. has held that a boy of five years of age is not as a matter of law absolutely disqualified as a witness. Section 118 of the Evidence Act makes it clear that by reason of tender age a witness is not rendered incompetent to give evidence. During his cross-examination, PW3 has stood to his ground and nothing material could be elicited from him which would have thrown a doubt on complicity of the appellants in committing murder of his father. PW4-Ramdas Yadav is the father and PW5-Jaswa Devi is the mother of the deceased. They have deposed in the Court that on hearing hullah when they ran towards the house of their son they found Jitendra Kahar running away from his house. Both have spoken about illicit relationship of their daughter-in-law with Jitendra Kahar. PW6-Lalita Devi is the sister-in-law of the deceased -she is wife of PW1. She has also narrated the incident of the night of 06/07.09.2008 in the same manner as described by her husband and in-laws. Accompanied by her husband, father-in-law and mother-in-law, she had also rushed to the house of Prakash Yadav on hearing hullah by the children and she has seen Jitendra Kahar fleeing away from the house. She has also stated about illicit relationship of his sister-in-law with Jitendra Kahar. She has stated that Prakash Yadav and her husband are real brothers and both were residing in separate houses, adjacent to each other. Her house is about ten paces away from the house of Prakash Yadav and the house of Jitendra Kahar is also in front of her house. She has stated that Prakash Yadav and her husband are real brothers and both were residing in separate houses, adjacent to each other. Her house is about ten paces away from the house of Prakash Yadav and the house of Jitendra Kahar is also in front of her house. She has stated that there was electricity connection in the house of her brother-in-law and the night of the occurrence was a moonlit night. 8. According to the prosecution murder of Prakash Yadav was committed inside his house. It was dead of the night, around 02:00 AM, when Jitendra Kahar entered his house and started indiscriminate assault with dab on him. At that moment it is quite natural that only the inmates of the house could have seen the occurrence. 9. There are as many as six witnesses who have either seen Jitendra Kahar assaulting Prakash Yadav or fleeing him away from the house of the informant. Prakash Yadav was living with his wife and children and his parents and brother were residing in another house adjacent to his house. The prosecution evidence that his parents and brother were residing in a nearby house is a relevant circumstance which lends credence to their testimony that they have seen the accused fleeing away from the house of the deceased, as their presence near the place of occurrence is quite natural. 10. In “State of U.P. v. Jagdeo” (2003) 1 SCC 456 the Hon'ble Supreme Court has observed as under: “7.....Most of the times eyewitnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eyewitnesses have to be persons who have reason to be present on the scene of occurrence because they happen to be either friends or family members of the victim.....” 11. Mr. Vikram Sinha, the learned counsel appearing for Jitendra Kahar would submit that the informant is not an eyewitness and the other witnesses have developed the story in the Court and, therefore, they are not reliable and trustworthy witnesses. 12. PW1 and PW2 have stated that Jitendra Kahar was arrested on the day of the occurrence, that is, on 07.09.2008. Mr. Vikram Sinha, the learned counsel appearing for Jitendra Kahar would submit that the informant is not an eyewitness and the other witnesses have developed the story in the Court and, therefore, they are not reliable and trustworthy witnesses. 12. PW1 and PW2 have stated that Jitendra Kahar was arrested on the day of the occurrence, that is, on 07.09.2008. These witnesses were cross-examined on the point of identification of the accused and they have stated in the Court that it was a moonlit night and, moreover, they had previous acquaintances with Jitendra Kahar. We find that the identity of the person who assaulted Prakash Yadav and was found running away from his house are well established by the prosecution. PW2 and PW3 both have admitted in the Court that their father had good relations with Jitendra Kahar but that would not mean that the accused was not involved in the crime. The daughter and son of a person would not falsely implicate a friend of his father and it is unbelievable that they would make false accusations against their own mother. The statement of PW2 and PW3 under section 164 of the Code of Criminal Procedure was recorded in course of the investigation. The learned Magistrate who was examined during the trial as PW8 has affirmed that on 02.12.2008 he recorded statements of Arti Kumari-PW2 and Ajay Kumar Yadav-PW3 under section 164 of the Code of Criminal Procedure. 13. Merely because a witness is a close relative it is not enough to reject his testimony if his evidence is otherwise credible. In “Sucha Singh v. State of Punjab” (2003) 7 SCC 643 the Hon'ble Supreme Court has held that relationship is not a factor to affect credibility of a witness, for it is more often that the relatives would not conceal the actual culprit and make allegation against an innocent person. 14. In “State of H.P. v. Mast Ram” (2004) 8 SCC 660 the Hon'ble Supreme Court has observed as under: “11. ………. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution....” 15. 14. In “State of H.P. v. Mast Ram” (2004) 8 SCC 660 the Hon'ble Supreme Court has observed as under: “11. ………. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution....” 15. In yet another judgment, in “Kamta Yadav v. State of Bihar” (2016) 16 SCC 164 the Hon'ble Supreme Court has observed as under: “13.....Moreover, the credibility and trustworthiness of all these eyewitnesses could not be shaken by the accused persons. Once it is found that these witnesses, who are eyewitnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worthy of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below.” 16. PW2 and PW3 have seen Jitendra Kahar assaulting their father. They are truthful witnesses who have admitted many suggestions of the defence, such as, cordial relation between their father and the accused and that they were sleeping in another room. Their testimony does not suffer from any infirmity and their evidence is sufficient to record conviction of the appellants for murder of Prakash Yadav. The other witnesses came to the house of the deceased on hearing hullah by his children. They have seen Jitendra Kahar running away from the house. In this manner, PW2 and PW3 are corroborated by PW1, PW4, PW5 and PW6. From the suggestions put in cross-examination to the eyewitnesses, we gather that the witnesses did not deviate from their previous statements and their evidence in the Court does not contain any serious aberration. The crime was committed in a village and the witnesses are rustic villagers. Minor inconsistencies in the testimony of the witnesses were quite natural but there is no major omission or improvement in their evidence rendering them unreliable witness. A significant feature of the prosecution case which we need to keep in mind is that so many witnesses have remained firm on the core of the prosecution case that murder of Prakash Yadav was committed by the appellants in furtherance of the common intention. 17. Dr. A significant feature of the prosecution case which we need to keep in mind is that so many witnesses have remained firm on the core of the prosecution case that murder of Prakash Yadav was committed by the appellants in furtherance of the common intention. 17. Dr. Binay Kumar who conducted the post-mortem examination has found the following injuries on Prakash Yadav: (i) Incised wound over ear, half cut extending from left ear to left side of neck to left mandible of size of 4” x 1” x bone deep. All major vessels cut in neck. (ii) Incised wound over the nose, (iii) Incised wound over head of size 2” x 1” , on right side, (iv) Incised wound over face below right ear of size 3” x 1” x bone deep, (v) Incised wound over right cheek of size 2” x 1” x bone deep, (vi) Incised wound over chin of size 1” x 1” x bone deep. 18. In the opinion of the doctor, the injuries were caused by sharp cutting weapon and time elapsed since death was within 12 to 24 hours. The informant has stated that Jitendra Kahar assaulted her father with a dagger and the other witnesses have seen Jitendra Kahar fleeing away with a blood stained dagger in his hand. The medical evidence that injuries found on the person of Prakash Yadav were caused by sharp cutting weapon thus lends support to the case of the prosecution that Jitendra Kahar assaulted Prakash Yadav with a dab. 19. The Forensic Report which is extracted herein below would also support the prosecution: Description of Articles(s) contained in the parcel(s) 1. The packet marked-A contained one torn, violet “Rupa Frontline” 90 cms sandow ganji which bore reddish brown stains over large areas. 2. The iron dab with inbuilt handle was marked-B. There were two round holes on handle Part. The blade length of dab was about 35 cms and handle length was about 13 cms. It bore brownish stains. Result of Examination(s) 1. Blood has been detected over large areas in the exhibit marked-A. 2. Blood could not be detected in the exhibit marked-B. 3. Serological report on origin and group of the blood would follow. 20. The blade length of dab was about 35 cms and handle length was about 13 cms. It bore brownish stains. Result of Examination(s) 1. Blood has been detected over large areas in the exhibit marked-A. 2. Blood could not be detected in the exhibit marked-B. 3. Serological report on origin and group of the blood would follow. 20. The report of the State Forensic Science Laboratory, Ranchi that blood was detected over large area of “Rupa Frontline” vest seized from the house of Jitendra Kahar has remained unexplained by the accused. Furthermore, the prosecution has established motive for the crime which further strengthens the case of the prosecution against the accused. 21. In “Sheo Shankar Singh v. State of Jharkhand” (2011) 3 SCC 654 the Hon'ble Supreme Court has observed as under: “15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. ................................................................................” 22. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. ................................................................................” 22. The aforesaid evidences produced by the prosecution clearly establish participation of the appellants in the crime. 23. Mr. Arun Kumar, the learned counsel for Munni Devi would contend that except an allegation that Munni Devi had illicit relationship with Jitendra Kahar the prosecution has not produced any evidence on her involvement in the murder of Prakash Yadav. 24. Section 34 IPC is a rule of evidence and does not create a substantive offence by itself. It embodies the principle of joint criminal liability in the doing of a criminal act the essence of which is existence of a common intention. In “Bharwad Mepa Dana and Anr. v. The State of Bombay” AIR 1960 SC 289 the Hon'ble Supreme Court has observed that the principle which section 34 IPC embodies is participation in action with the common intention of committing a crime and once such participation is established section 34 is at once attracted. 25. In “Ramaswami Ayyangar v. State of T.N.” (1976) 3 SCC 779 the Hon'ble Supreme Court has observed as under: “12. …...Section 34 is to be read along with the preceding Section 33 which makes it clear that the “act” spoken of in Section 34 includes a series of acts as a single act. It follows that the words “when a criminal act is done by several persons” in Section 34, may be construed to mean “when criminal acts are done by several persons”. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an “act” as much as his coparticipants actually committing the planned crime. Such a person also commits an “act” as much as his coparticipants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the ‘criminal act’. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased.....” 26. Munni Devi has not denied her presence in the house in the fateful night. Her husband was killed in the house and she has not even stated in her examination under section 313 of the Code of Criminal Procedure that she raised alarm. The prosecution has proved that she had illicit relationship with Jitendra Kahar and that was the reason they eliminated Prakash Yadav. She had a motive and may be she has not assaulted her husband her involvement in the crime is beyond any doubt. The informant has deposed in the Court that when Jitendra Kahar knocked the door her mother let him in. She has further stated that on hearing cries of her father when she rushed to the room her mother pushed her away. This is also the prosecution evidence that Munni Devi was flashing torch light which undoubtedly was intended to facilitate attack on her husband. 27. In “Chacko v. State of Kerala” (2004) 12 SCC 269 one of the accused was focusing light on the deceased by a torch so that the other accused could assault him. This is also the prosecution evidence that Munni Devi was flashing torch light which undoubtedly was intended to facilitate attack on her husband. 27. In “Chacko v. State of Kerala” (2004) 12 SCC 269 one of the accused was focusing light on the deceased by a torch so that the other accused could assault him. The Hon’ble Supreme Court has held that he shared the common intention and hence rightly roped in with the aid of Section 34. 28. In “Tukaram Ganpat Pandare v. State of Maharashtra” (1974) 4 SCC 544 the Hon'ble Supreme Court has observed thus; “10. … Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.” 29. The learned trial Judge has rightly observed that the son and daughter of the deceased would not implicate their mother falsely. There was no suggestion by the defence to the witnesses that out of animosity they have falsely implicated them in the case, and it is not shown that the investigating officer had any motive to implicate them falsely in the case. 30. In “Nirmal Singh v. State of Bihar” (2005) 9 SCC 725 the Hon'ble Supreme Court has observed as under: “19. In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eyewitnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.” 31. The silence of the accused when they were examined under section 313 of the Code of Criminal Procedure is quite disquieting. They have chosen not to offer any explanation to the incriminating circumstances put to them. This circumstance would definitely militate against the presumption of innocence of the accused. 32. In “Phula Singh v. State of H.P.” (2014) 4 SCC 9 the Hon'ble Supreme Court has observed thus; “11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. This circumstance would definitely militate against the presumption of innocence of the accused. 32. In “Phula Singh v. State of H.P.” (2014) 4 SCC 9 the Hon'ble Supreme Court has observed thus; “11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan).” 33. The aforesaid discussions lead us to conclude that the prosecution has proved the charge against the appellants. There is no merit in these criminal appeals and, accordingly, Criminal Appeal (D.B) No.265 of 2012 and Criminal Appeal (D.B) No.270 of 2014 are dismissed. 34. Mr. Manoj Kumar Mishra, the learned APP states that Munni Devi who has served sentence of more than 07 years, with remission, was released on bail by virtue of an order dated 10.12.2014 passed by this Court. Accordingly, the bail-bonds furnished by Munni Devi are cancelled. She shall surrender in the Court concerned to serve the remaining sentence. 35. Let the lower Court records be sent to the Court concerned forthwith. 36. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.