JUDGMENT : [Sujit Narayan Prasad, J.] 1. The instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction dated 6th September, 1994 and order of sentence dated 9st September, 1994, passed by learned Additional Judicial Commissioner IV, Ranchi in S.T. No. 262 of 1985 by which the appellants were found guilty and convicted for the offence punishable under Sections 302/149 of the Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/149 of the Penal Code, 1860. 2. Vide order dated 09.05.2019 since appellants nos. 3 to 7 have passed away as such appeal is abated so far appellant nos. 3 to 7 are concerned. 3. As per fardbeyan of the informant, the prosecution case in brief, is that: There was some Gair Mazarua land in the east side of the Basti (small village) of informant party, in which the dead body of Basti was used to be buried, for which, a dispute was going on in between the informant party and accused persons-Choutha Munda etc. for some period and previously there was proceeding under Section 107 of the Code of Criminal Procedure for that land, which was alleged to be pending before the Court of law. 4. The informant while giving statement before the police by way of fardbeyan has alleged that today i.e., 12.02.1985 at 10.00 a.m. morning the members of opposite party, namely, Choutha Munda, Chamar Singh Munda, Budha Munda, Budhu Munda, Birsa Munda, Jhonda Munda, Soma Munda and Ratan Munda, in which, Choutha Munda was armed with Sawal and rest were possessing lathi-danda came and started to fix stone over the grave of one Buka Munda, upon which, the cousin brother of informant, namely Majhia Munda and father of the informant, Guru Munda forbade the accused persons to fix stone over the graveyard. On this, the accused persons shouting to kill them started to chase Majhia Munda and Guru Munda and lastly while chasing through the farm of one Kamla Pahan, till village road the accused persons by means of lathi and Sawal gave injury upon the body of Majhia Munda and Guru Munda (father of the informant) because of which his cousin brother Majhia Munda died on the spot while his father Guru Munda fell in unconscious condition. The informant has further stated that while quarrel was going on at the graveyard besides him Jado Munda, Laka Munda, Vinwas Munda were also present there. On being chased by accused persons they saved their life. Other villagers also assembled there on hearing halla (noise) who had witnessed the occurrence shall also narrate the incidence. 5. The informant has specifically stated that killing of his cousin brother-Majhia Munda and injury sustained by his father was caused by accused persons, namely, Choutha Munda, Chamar Singh Munda, Budha Munda, Budhu Munda, Birsa Munda, Jhonda Munda, Soma Munda and Ratan Munda. 6. The informant has further stated that the accused by forming unlawful assembly had killed his cousin brother and inflicted injuries over the body of his father by means of lathi and Sawal. 7. The investigating Officer learnt about the occurrence at about 14.15 hours on the same day of occurrence from one Mochi Rai Munda, who was not an eye witness of the occurrence, as such after having recorded Sahna being Sanha No. 204 dated 12.02.1985, he proceeded to the place of occurrence, where he recorded the fardbeyan of informant, basis upon which a formal F.I.R. was registered against the accused persons under Sections 147/148/149 and 302 of the Penal Code, 1860. 8. After investigation, the police submitted charge-sheet against the accused person. Accordingly cognizance of the offence was taken and case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 262 of 1985, wherefrom the case was received in the Court of learned Additional Judicial Commissioner, Ranchi for trial and disposal, wherein the charges framed against the accused was found proved and accordingly the accused persons were convicted vide judgment of conviction dated 6th September, 1994 and sentenced vide Order of sentence dated 9st September, 1994 undergo rigorous imprisonment for life for the offence punishable under Section 302/149 of the Penal Code, 1860, which is the subject matter of instant appeal. 9. We have heard learned counsel for the parties, perused the documents available on record and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order. 10. 9. We have heard learned counsel for the parties, perused the documents available on record and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order. 10. The prosecution, in order to establish the charge, in course of trial, has examined altogether 8 witnesses, namely, P.W. 1-Laka Munda; P.W. 2-Binsay Munda; P.W. 3-Jado Munda; P.W. 4-Gundran Munda; P.W. 5-Kishun Munda; P.W. 6-Shiv Narayan Prasad (doctor); P.W. 7-Mr. Renu Bala (doctor) and P.W. 8-Ramjee Pandey (the investigating officer). 11. Mr. Hemant Kumar Shikarwar, learned counsel for the appellants has assailed the impugned judgment of conviction and order of sentence on the following grounds: (I). The injured witness has not been examined by the prosecution the reason best known to the prosecution. (II). Further, the conviction is solely based upon the testimony of interested witness, and as such since no independent witness has been examined by the prosecution though names of many independent witnesses have come during investigation by the police as also in deposition of so-called eye witnesses (P.W. 1 to 5), therefore, on this ground the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. (II). The post mortem report does not corroborate the nature of injury as described by the eye witnesses to be found on the body of the deceased. (III). The learned trial court has not considered the fact that all the witnesses had inimical relationship with the accused persons and had convicted the accused persons solely relying upon such interested witnesses, which suffers from serious infirmity. (IV). That the place of occurrence has not been established and further the manner of occurrence has also not been established so as the time of occurrence. (V). It has further been submitted that the prosecution has not proved the pre-meditated plan to commit murder. 12. In the backdrop of aforesaid grounds, submission has been made that the impugned judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 13. Per Contra, Mr. 12. In the backdrop of aforesaid grounds, submission has been made that the impugned judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt. 13. Per Contra, Mr. Bhola Nath Ojha, learned Additional Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that there is no illegality in the impugned judgment since impugned judgment is based upon the testimony of eye witnesses (P.W. 1 to 5) who have seen the occurrence as would be evident from the testimony of P.W. 1 to P.W. 5, which is corroborated by medical evidence as deposed by doctor and the Investigating Officer. 14. Learned counsel for the State has further submitted that P.W. 1 to P.W. 5 since are the eye witness who have witnessed the commission of crime of causing death of deceased and as such merely because they are relatives of the deceased their testimony cannot be discarded. 15. It has further been submitted that taking into consideration the testimony of these eye witnesses if the injured has not been examined the prosecution will not vitiate. 16. It has been submitted that it is incorrect submission on the part of appellants that the nature of injury found on the body of the deceased has not been corroborated from the post mortem report as from bare perusal of nature of injury as mentioned in the post mortem report to that of description of commission of crime by the accused persons, it would be apparent that it is corroborated and minor discrepancy, would not disbelieve the prosecution case. 17. So far argument of the appellant relating to the finding with respect to inimical relation with P.W. 1 to P.W. 5 with the accused persons are concerned, the same cannot be a ground to discard the testimony of the eye witnesses who have disclosed about the commission of crime of causing death of the deceased. 18. It has been submitted that if the testimony of P.W. 1 to 5 will be taken together it would be evident that there is no inconsistency in their testimony rather they have consistently supported the prosecution version. 19. 18. It has been submitted that if the testimony of P.W. 1 to 5 will be taken together it would be evident that there is no inconsistency in their testimony rather they have consistently supported the prosecution version. 19. Learned counsel for the State in the aforesaid backdrop has submitted that the impugned judgment of conviction and order of sentence requires no interference by this Court. 20. This Court, in order to examine the legality and propriety of the impugned judgment of conviction and order of sentence, deems it fit and proper first to go through the material testimony of witnesses examined by prosecution: 21. P.W. 1 to 5 are the eye witnesses to the occurrence. P.W. 6 and 7 are the doctors and P.W. 8 is the investigating officer. 22. P.W. 1-Laka Munda, who is the eye witness, in his testimony has specifically deposed that on the fateful day, the accused Choutha Munda armed with Sawal and other accused persons armed with lathi-danda came to fix stone over the graveyard of Suka Munda, to which, they forbade. 23. On the opposition shown by them, the accused persons, after chasing, started to beat Manjhia Munda and Guru Munda. Manjhia Munda died on the spot whereas Guru Munda became unconscious and only he was breathing. 24. In his cross-examination, this witness has deposed that Choutha Munda gave Sawal blow upon Majhia Munda however he expressed his inability that how many times Sawal blow was given by the accused-Choutha Munda. This witness has further deposed that Choutha Munda gave Sawal blow to both Majhia and Guru Munda. He further deposed that other accused persons gave lathi blow upon the deceased but expressed his inability that how many times the lathi blow was given. 25. P.W. 2-Binsay Munda, who is also an eye witness, in consistency with the testimony of P.W. 1 has stated that Choutha Munda was armed with Sabal and other accused persons were armed with lathi-danda. He has also deposed that dispute was with respect to fixing of stone on graveyard. He has further deposed that Sabal blow was given upon Majhia Munda and Guru Munda. He has also deposed that dispute was with respect to fixing of stone on graveyard. He has further deposed that Sabal blow was given upon Majhia Munda and Guru Munda. He is further in consistency with the testimony of P.W. 1 and other witness on the issue that the dead body of Manjhia Munda was in the farm of Kamal Pahan and unconscious body of Guru Munda was also lying there, who died later in hospital. 26. In cross-examination, the defence failed to shake his evidence. 27. P.W. 3-Jado Munda, and P.W. 4-Gundran Munda, who are also the eye witnesses, have stated the same version as other eye witness have told and in his cross-examination they did not deviate from what they stated in his examination-in-chief. 28. P.W. 5-Kishun Munda, who is the informant in this case in his examination-in-chief has stated the same prosecution story as has been given in his fardbeyan, wherefrom it is evident that the accused persons wanted to fix a stone slab on the grave of Buka Munda, to which, the informant party opposed. On opposition shown by the informant party, the accused persons got annoyed and started to beat them by chasing them. In course thereof, Manjhia Munda who was assaulted by Choutha Munda with Sawal died on the spot and Guru Munda, who became unconscious on spot because of assault given by accused persons and later on died in Bariatu hospital in course of treatment. 29. In his cross-examination, the informant has specifically deposed that Choutha Munda had used Sawal to kill Manjhian Munda and also assaulted Guru Munda by means of Sawal. He has further deposed that other accused persons were armed with lathi in their hands. In his cross-examination he further deposed that he had seen the assault given by accused persons. 30. P.W. 6-Dr. Sheo Narayan Prasad performed post mortem examination on the dead body of Majhia Munda on 13.02.1985 and found following ante mortem injuries on the person of deceased-Majhia Munda: (i). Cut injury 3"×1"× scalp deep placed over the right eyebrow causing fracture of right frontal bone. (ii). Cut injury 2 ½? × 1/2? × scalp deep placed over the right occipital bone. (iii). Cut injury 1? × 1/2? × scalp deep on lower part of right occipital bone. (iv). Cut injury 1? × ½? × ¼? on the chin. (v). Cut injury ½? × ½? (ii). Cut injury 2 ½? × 1/2? × scalp deep placed over the right occipital bone. (iii). Cut injury 1? × 1/2? × scalp deep on lower part of right occipital bone. (iv). Cut injury 1? × ½? × ¼? on the chin. (v). Cut injury ½? × ½? × on right side of lower lip. (vi). Cut injury ½? × ¼? × 1/4? on the right cheek. 31. The doctor opined that all the injuries were caused by sharp cutting weapon. The doctor also opined that such injuries may be caused by Sabal if the blade is wide according to doctor, death had occurred within 24 hours from the time of postmortem examination and death was due to shock and haemorrhage and injury to vital organ. The doctor further opined that these injuries were sufficient in ordinary course of nature to cause death. The doctor stated that injuries nos. 1, 2 and 3 were sufficient to cause death. 32. The doctor has proved the postmortem report, which has been marked as Exhibit 1. 33. In his cross-examination, the doctor has stated that Sabal is generally not a sharp cutting weapon but if the blade of Sabal is wide, then injuries nos. 1 to 3 can be caused by it. 34. P.W. 7-Dr. Mrs. Reena Bala had performed postmortem examination on the dead body of deceased-Guru Munda. She found following wounds on the person of Guru Munda: Stitched wound: (i). 8 c.m. long on the left side of occipital region of the head. (ii). 3 c.m. long on the pinna of the left year. Abrasions: (i). 3 c.m. × 1 c.m. on the left side of the forehead. (ii). 3 c.m. × 1 c.m. and (iii). 2 c.m. × 1 c.m. both on the left cheek. Internal injury. The doctor deposed that there was depressed fracture of left occipital region of the head. There was also crack fracture of right occipital region of the head and right parietal region of the head. The doctor found epidural blood clot over occipital region of the brain. The doctor found laceration of right frontal lobe of the brain and subdural bleeding. The doctor also found laceration of liver with bleeding of abdominal cavity. 35. The doctor (P.W. 7) opined that the injuries were ante mortem caused by hard and blunt substance. The doctor found epidural blood clot over occipital region of the brain. The doctor found laceration of right frontal lobe of the brain and subdural bleeding. The doctor also found laceration of liver with bleeding of abdominal cavity. 35. The doctor (P.W. 7) opined that the injuries were ante mortem caused by hard and blunt substance. The doctor has proved postmortem examination report of deceased-Guru Munda, which has been marked as Exhibit 1/1. The doctor has stated at paragraph 4 of her cross-examination that it is not correct to suggest that the depressed wound in the instant case was caused by fall. According to P.W. 7, the crack fracture may be caused by fall. 36. P.W. 8-Ramji Pandey, is the investigating officer of this case, who has deposed that he after recording the fardbeyan of informant-Kishun Munda took up the investigation of the case. He further deposed that on the fardbeyan there is endorsement of officer-in-charge for lodging of the case which he identified and that has been marked as Exhibit 2. He further identified the signature and writing of Sri. Lal Bahadur, Officer-in-Charge of the concerned Police Station over the formal F.I.R., which has been marked as Exhibit 2/1. 37. According to Investigating Officer, the place of occurrence is Kachha Road of the village Bar Toli. This witness in his examination-in-chief has given all details of place of occurrence and has deposed that at the place of occurrence, the Kachha Road runs east to west. The road coming from village Bar Toli passes through the place of occurrence and goes to graveyard in question. At place of occurrence the road is about 15 feet wide. Further place of occurrence is 500 yard from village. He has further deposed that he found the dead body of deceased-Manjhia Munda at the place of occurrence and live body of injured Guru Munda. 38. The Investigating officer has found large quantity of blood at the place of occurrence and also a piece of cloth under the head of Manjhia Munda, which was fully blood soaked. The I.O. prepared inquest report of the dead body of deceased-Majhia Munda at the place of occurrence in triplicate carbon copy. He proved one of the carbon copy of the inquest report, which has been marked as Exhibit 3. The I.O. prepared inquest report of the dead body of deceased-Majhia Munda at the place of occurrence in triplicate carbon copy. He proved one of the carbon copy of the inquest report, which has been marked as Exhibit 3. The I.O. had further inspected wounds of Guru Munda and seized blood stained earth and blood soaked cloth and prepared seizure-list, which has been marked as Exhibit 4. 39. This Court after having discussed the factual aspect above and the ground as agitated on behalf of the parties, is now proceeding to examine the testimony of eye witnesses-P.W. 1 to P.W. 5, whose version have been corroborated by the testimony of the Investigating Officer and the doctor basis upon which the learned trial Court has found the charges proved against the appellants proved beyond all shadow of doubt. 40. It appears from the testimony of P.W. 1 to P.W. 5 that they all along have supported the prosecution version of causing commission of crime to the effect that on the fateful day, the accused Choutha Munda armed with Sawal and other accused persons armed with lathi-danda came to fix stone over the graveyard of Buka Munda, to which, they forbade. On the opposition shown by them, the accused persons, after chasing, started to beat Manjhia Munda and Guru Munda. Manjhia Munda died on the spot whereas Guru Munda became unconscious and only he was breathing. 41. In their cross-examination, the eye witnesses, P.W.1 to P.W. 5 were consistent what they have stated in the examination-in-chief. Further, the testimony of P.W. 1 to P.W. 5 has been corroborated by the testimony of investigating officer who had prepared inquest report and visited the place of occurrence and collected the blood stained earth and other incriminating articles and prepared the seizure-list. 42. The doctor, who had conducted post mortem examination has also corroborated the nature of injury as have been narrated by the eye witnesses, P.W. 1 to P.W. 5 by giving cause of death to the effect Choutha Munda gave Sabal blow upon Majhia Munda and Guru Munda and other accused persons who were armed with lathi and danda gave lathi and danda blow upon the deceased, which resulted into death of Manjhia Munda and Guru Munda. 43. 43. This Court, after having discussed the testimony of these eye witnesses as also the investigating officer and doctor, is now proceeding to discuss the grounds upon the impugned judgment of conviction and order of sentence has been challenged. 44. The first ground has been taken that the injured witness has not been examined and therefore, the judgment of conviction and order of sentence is not sustainable. 45. The position of law is well settled as has been held by Hon'ble Apex Court in the case of Rajan Rai v. State of Bihar [ (2006) 1 SCC 191 ], wherein at paragraph 11 it has been held as under: “11. Now the question arises as to whether the trial court as well as the High Court were justified in placing reliance upon the evidence of PWs 2, 3, 5 and 9. PW 9 is the informant himself and, being the brother of the deceased, the most competent person to have witnessed the occurrence that had taken place in the outer verandah of the house. PW 9 himself was injured in the said occurrence and was examined by Dr. B.P. Tribedi (PW 12) who found four injuries on his person caused by explosive substance, such as bomb. The investigating officer (PW 17) heard the sound of bomb explosion at the police station which was at a distance of 1/4th kilometre from the place of occurrence and arrived there at 8.25 p.m. i.e. only after 15 minutes of the occurrence which had taken place at 8.10 p.m. and recorded fardbeyan of PW 9 on the basis of which the formal FIR was registered at the police station. The informant, PW 9 in his substantive evidence in the court has supported the prosecution case disclosed by him in all material particulars. In the FIR he disclosed names of three witnesses specifically, who had received injuries, namely, DWs 1, 2 and 3. Apart from these injured witnesses, it has been stated in the FIR that there were other persons as well who had seen the occurrence. Immediately after the fardbeyan was recorded, the statements of PWs 2, 3 and 5 were recorded by the police without any delay whatsoever. In their statements made before the police, they have categorically supported the prosecution case disclosed in the FIR. Immediately after the fardbeyan was recorded, the statements of PWs 2, 3 and 5 were recorded by the police without any delay whatsoever. In their statements made before the police, they have categorically supported the prosecution case disclosed in the FIR. They have also specifically stated that all the accused persons threw bombs upon the deceased as a result of which he received injuries and succumbed to the same. PW 9 stated in his evidence that the three injured witnesses, referred to above, were not ready to depose out of fear of the accused persons. Presence of three injured witnesses, namely, DWs 1, 2 and 3 at the place of occurrence has been accepted by them and their injuries have been proved by the two doctors PWs 15 and 16. In their evidence, DWs 1, 2 and 3 have simply stated that the appellant was not present at the place of occurrence. It appears that these three injured witnesses were not ready to depose on behalf of the prosecution out of fear of the accused persons, as such, merely because they could not be examined by the prosecution, the evidence of PWs 2, 3 and 5 cannot be discarded especially when their statements were recorded by the police immediately after recording of the fardbeyan. As such, no adverse inference can be drawn against the prosecution for not examining the three injured witnesses. The evidence of PWs 2, 3 and 5 is consistent with the prosecution case disclosed in the FIR as well as in the substantive evidence of the informant, PW 9. In our view, the trial court and the High Court were quite justified in placing reliance upon their evidence. In view of the facts stated above, we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubt.” [Emphasis supplied] 46. Further, the Hon'ble Apex Court in the judgment rendered in Sadhu Saran Singh [ (2016) 4 SCC 357 ] at paragraph 28 held as under: 28. Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12-9-1997 and 6-10-1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 and 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness. (Also see Rajan Rai v. State of Bihar [Rajan Rai v. State of Bihar, (2006) 1 SCC 191 : (2006) 1 SCC (Cri) 209]). [Emphasis Supplied] 47. This Court on the basis of law settled regarding the effect of prosecution due to non-examination of injured witness is of the view that herein the fact of the given is also that there are eye witnesses who have corroborated the prosecution version, as would appear from the testimony of P.W.1 to P.W. 5 after reading it together. Therefore, applying the principle laid down by Hon'ble Apex Court in the cases, as referred hereinabove, merely the injured witness has not been examined the prosecution version will not fail. 48. The second ground has been agitated that P.W. 1 to 5 since are the interested witness and as such the impugned judgment of conviction and order of sentence will not sustain. 49. The law is well settled in this regard that what would be the effect if the conviction is solely based upon the testimony of interested witness, as has been held by Hon'ble Apex Court in the case of Mallanna v. State of Karnataka, (2007) 8 SCC 523 wherein it has laid down that the evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility then the Court can disbelieve the same. Relevant paragraph reads as under: “22. Relevant paragraph reads as under: “22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3 is that no reliance should be placed upon these witnesses as PW 1 and PW 2 are close relations of the deceased and PW 3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses, PW 1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly bodyguard of the deceased and PW 1 and PW 3 came with the deceased to the house of PW 2 which was in Gulbarga the previous night for appearance of the deceased in sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad daylight. So far as PW 2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor (PW 6) to the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence.” [Emphasis Supplied] 50. In Kulesh Mondal v. State of W.B., (2007) 8 SCC 578 , the Hon'ble Apex Court has laid down at paragraph-10 which reads as under: “11. “10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab [ AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) ‘25. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) ‘25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.’” 51. We have also observed that the ground that the witnesses being close relative and consequently being partisan witnesses should not be relied upon, has no substance. This theory was repelled by the Hon'ble Apex Court in Dalip Singh v. State of Punjab, AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that the relatives were not the independent witness. Relevant paragraph-26 reads as under: “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 52. Again in Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 , the Hon'ble Apex Court has observed that there is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with such evidence of a partisan type with great care. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan, cannot be accepted as correct. 53. In Rizan v. State of Chattisgarh, (2003) 2 SCC 661 , the Hon'ble Apex Court has observed at paragraphs-6 to 9, which reads as under: “6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.” 7. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.” 7. In Dalip Singh v. State of Punjab [ AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : (AIR p. 366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 8. The above decision has since been followed in Guli Chand v. State of Rajasthan [ (1974) 3 SCC 698 : 1974 SCC (Cri) 222] in which Vadivelu Thevar v. State of Madras [ AIR 1957 SC 614 : 1957 Cri LJ 1000] was also relied upon. 9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case [ AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. This theory was repelled by this Court as early as in Dalip Singh case [ AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) “25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in — ‘Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547]’ (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.”” 54. In Shamim v. State (Government of NCT of Delhi), (2018) 10 SCC 509 , the Hon'ble Apex Court has observed at paragraph-9 which reads as under: “9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. Soon after the occurrence having reached the house of her in-laws she stepped out on the verandah. The appellant who was standing on her own verandah told the witness that she had got the deceased killed because the witness did not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, can be considered as a corroborative evidence being a voluntary extra-judicial confession, considering the nature of relationship between the witness and the appellant.” 55. Herein in the instant case, P.W. 1 to P.W. 5 are the relatives of the deceased but merely because they are relatives as per law laid in by Hon'ble Apex Court, as referred hereinabove, their testimony cannot be discarded since in their testimony they are all along consistent to the prosecution story, which has been corroborated by the testimony of investigating officer and the doctor, who have conducted post mortem examination of the deceased. 56. Further ground has been taken that the post mortem report cannot be said to be in corroboration with the injury report. We have considered the post mortem report wherefrom it is evident that injuries have been found on the body of the deceased persons, description of which has been given in the post mortem report given by doctor, as quoted hereinabove. 57. We have also considered the narration of the injuries inflicted upon the deceased persons by the accused/appellant as has been disclosed by the eye witnesses (PW 1 to PW 5) and found therefrom that the injury as has been narrated by the prosecution witnesses is almost same and similar and even if there is minor discrepancy in the nature of injury that itself cannot be said to be sufficient to disbelieve the prosecution story. 58. 58. The position of law is well settled that if the prosecution has been able to prove the charges leveled against the person concerned who has committed the crime from the testimony of the eye witnesses even if there is discrepancy in the medical evidence, the testimony of the ocular witnesses cannot be discarded, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Sadhu Saran Singh v. State of Uttar Pradesh, reported in (2016) 4 SCC 357 , wherein, at paragraph-26, it has been held as under:— “26. We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the doctor in the cross examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence - 12 - of PW 1 cannot be discarded as primacy has to be given to the ocular evidence, particularly in the case of minor discrepancies. This Court in Darbara Singh v. State of Punjab [Darbara Singh v. State of Punjab, (2012) 10 SCC 476 : (2013) 1 SCC (Cri) 1037], wherein this Court has held : (SCC pp. 480-81, para 10) “10. … So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”(emphasis supplied) 59. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”(emphasis supplied) 59. Likewise, in the case of Abdul Sayeed v. State of Madhya Pradesh, reported in (2010) 10 SCC 259 , it has been held by the Hon'ble Apex Court at paragraph-34 to 39 as under:— “34. Drawing on Bhagirath case [ (1999) 5 SCC 96 : 1999 SCC (Cri) 658], this Court has held that where the medical evidence is at variance with ocular evidence, “it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’”. 35. Where the eyewitnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. “21. … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ‘credit’ of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” [Vide Thaman Kumar v. State (UT of Chandigarh) [ (2003) 6 SCC 380 : 2003 SCC (Cri) 1362] and Krishnan v. State [ (2003) 7 SCC 56 : 2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.] 36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [ (1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484 ] this Court observed : (SCC p. 180, para 13) “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. In Solanki Chimanbhai Ukabhai v. State of Gujarat [ (1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484 ] this Court observed : (SCC p. 180, para 13) “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” (emphasis added) 37. A similar view has been taken in Mani Ram v. State of U.P. [1994 Supp (2) SCC 289 : 1994 SCC (Cri) 1242], Khambam Raja Reddy v. Public Prosecutor [ (2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] and State of U.P. v. Dinesh [ (2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484]. 38. In State of U.P. v. Hari Chand [ (2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] this Court reiterated the aforementioned position of law and stated that : (SCC p. 545, para 13) “13. … In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.” 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 60. Argument has been advanced that P.W. 1 to P.W. 5 had inimical relationship with the accused persons as such due to grudge the appellants have been falsely implicated in this case. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 60. Argument has been advanced that P.W. 1 to P.W. 5 had inimical relationship with the accused persons as such due to grudge the appellants have been falsely implicated in this case. There is no dispute that the Court has to consider the testimony of the witnesses who are having inimical relation but the law is settled that the plea of inimical relation is having double edge sword as has been held by Hon'ble Apex Court in the case of Matibir Singh v. State of Uttar Pradesh reported in (2015) 16 SCC 168 has held as under paragraph 14 which reads hereunder as:— 14. That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment [State of U.P. v. Indrasen, Criminal Appeal No. 902 of 1979, decided on 26-9-2001 (All)]. We must, at the outset, say that the High Court's judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court. The fact that there was previous enmity between the complainant's party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution. Enmity is a double-edged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons. 61. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons. 61. This Court after taking into consideration the law laid down by Hon'ble Apex Court, as above, is of the considered view that the ground of inimical relation having with P.W. 1 to P.W. 5 with the accused persons cannot be said to be acceptable ground to vitiate the prosecution story reason being that P.W. 1 to P.W. 5 has stated about commission of crime by the appellants and as such the ocular evidence of P.W. 1 to P.W. 5 cannot be discarded on this ground. 62. So far as the ground of place of occurrence, manner of occurrence and time of occurrence, having not been established are concerned, this Court is of the view that nothing has been placed on record that the place of occurrence has not been established, as would appear from the inquest report and examination of the I.O. where he has prepared the inquest report or the place where the commission of crime has been committed so as also the manner of occurrence has also been found to be in corroboration. 63. Even accepting there is minor discrepancy that cannot be said to be a justified reason to discard the prosecution story in a case where culpability of the appellants have been found corroborated by the testimony of P.W. 1 to P.W. 5. 64. Further ground has been taken that there was no plan to commit murder since prosecution was not able to prove any pre-mediated plan. 65. In the context of the aforesaid argument, it will be purposeful to analyze Section 300 of the Penal Code, 1860, which reads as under: “300. Murder-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or” 66. There are four exceptions to Section 300 of the Penal Code, 1860. Murder-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or” 66. There are four exceptions to Section 300 of the Penal Code, 1860. The learned counsel for the appellant has relied upon Exception IV to Section 300 which reads as under: “Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.” 67. From the plain reading of the aforesaid provision it is amply clear that to avail of the benefit of Exception IV to Section 300, the defence is required to show that the offence was committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sobriety would not resort to. 68. Reference in this regard may be taken from the judgment rendered by Hon'ble Apex Court in Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 , wherein at paragraph 17, it has been held as under: “17. To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. 69. Applying this test to the facts of the instant case, it is evident from the testimonies of the eye witnesses (P.W.1 to 5) that the accused/appellants were armed with Sawal and Lathi and assembled at the place of occurrence to fix stone over the graveyard and when they were forbade by the informant's father, the accused persons started shouting to kill the deceased persons and after chasing, started to beat Manjhia Munda and Guru Munda due to which both the deceased persons succumbed to their injuries. 70. Further from the testimonies it is amply clear that the deceased persons were simultaneously hit by the sawal and lathi blow as inflicted by the accused/appellants. 71. Further it is pertinent to mention here that that in order to sustain a conviction under Section 149 I.P.C., it was important that the accused should be sharing a common object to murder. Mere presence of the accused at the place of occurrence would not suffice inasmuch as it had to be proved that the accused have come to the place of occurrence with a premeditated plan. To sustain a conviction under Section 302 that even if the murder was proved, those persons who are not involved in the actual assault and were not responsible for the injuries caused to the deceased, unless and until it was conclusively proved that they had come at place of occurrence with premeditated plan. 72. In the instant case the accused/appellants after forming of unlawful assembly had murdered the deceased persons which is fully corroborated by the deposition of doctors (P.W.6 and 7) who performed the autopsy on the dead body of the deceased persons. 72. In the instant case the accused/appellants after forming of unlawful assembly had murdered the deceased persons which is fully corroborated by the deposition of doctors (P.W.6 and 7) who performed the autopsy on the dead body of the deceased persons. From the post-mortem report it is evident that different type of multiple injuries were found on the bodies of deceased which reflects the repeated and multiple blow as made by the accused persons. 73. In view of discussions made hereinabove, it is evident that there is no iota of doubt that the offence of murder was committed by the accused/appellants in furtherance of premeditated plan to kill the deceased and that is why the accused persons along with sawal and lathi were present nearby the place of occurrence and when the deceased tried to escape they chased and killed them. 74. Hence we find no force in contention of the learned counsel for the appellants that the crime alleged was not committed in furtherance of premeditated plan. 75. This Court after considering the grounds as agitated on behalf of appellants and after taking into consideration the discussions made hereinabove has scrutinized the finding recorded by trial Court in the impugned order wherefrom it is evident that the learned trial Court has found that the prosecution has been able to prove the charge beyond all reasonable doubt against the appellants by taking into consideration the testimony of eye witnesses P.W. 1 to P.W. 5 being corroborated with the testimony of doctor and I.O. and as such according to our considered view that cannot be said to suffer from any error, which requires no interference by this Court. 76. This Court, after having passed the order as aforesaid has considered the sentence and found therefrom that the order of sentence to undergo imprisonment for life for the offence committed under Section 302 of the Penal Code, 1860 suffers from infirmity, reason being that Section 302 provides that along with the sentence of imprisonment for life, the fine is also mandatory to be inflicted as would appear from Section 302 of the Penal Code, 1860, which reads as under:— “302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 77. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 77. The trial Court while imposing the sentence has not considered the mandatory provision as contained under Section 302 of the Penal Code, 1860 and passed the order of sentence without inflicting any fine, therefore, the order of sentence is modified to the extent that apart from the sentence to undergo imprisonment for life, a fine of Rs. 5,000/- (Rupees Five Thousand) to the appellants is imposed. 78. With the aforesaid modification in the order of sentence, the instant appeal stand dismissed. 79. Consequent upon dismissal of the appeal preferred by the appellants, since appellants are enjoying suspension of sentence after the order being passed by this Court directed to release them during pendency of the appeal, their bail bond are cancelled and they are directed to surrender before the learned trial Court who would send them jail to serve out their remaining sentence. 80. Needless to say that if the appellants will not surrender, the trial Court will take endeavours for securing custody to serve out their remaining sentence and further secure that they may deposit the amount of fine so imposed by this Court. 81. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. Subhash Chand, J.:— I Agree.