Andhra HC (Pre-Telangana)
Dalapathi Balayya And Ors. vs The Public Prosecutor, High Court Of ... on 26 October, 2004
JUDGMENT P.S. Narayana, J.
1. A-1 to A-6 in S.C.No.9/98 on the file of Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam are the appellants in the present Appeal.
2. In Cr.No.13/97 of Paderu Police Station charge sheet was filed under Sections 302 and 324 IPC r/w. Section 34 IPC and the Mandal Executive Magistrate, Paderu in P.R.C.No.2/97 committed the matter to the Court of Session and the matter was made over to Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam and the learned Judge after framing the charges, in view of the fact that the accused pleaded not guilty, proceeded with the recording of evidence and recorded the evidence of PW-1 to PW-12 and the evidence of PW-13 was recorded by the Junior Civil Judge/IX Metropolitan Magistrate, Bheemunipatnam by virtue of an order made by the Metropolitan Sessions Judge, Visakhapatnam dated 2-1-1999 communicated in Dis.No.5, dated 2-1-1999 at his instance under Section 285 of the Code of Criminal Procedure 1973 and the learned Judge further marked Exs.P-1 to P-18 and M.Os.1 to 8 and ultimately came to the conclusion that A-1 to A-6 are guilty for an offence under Section 304 Part-I IPC and not under Section 302 IPC and A-2 is guilty for an offence under Section 324 IPC for causing injury on the person of PW-1 and however held that the case is not made out under Section 324 IPC r/w. Section 34 IPC as against the other accused and hence A-1 and A-3 to A-6 are entitled to benefit of doubt for the offence under Section 324 r/w. Section 34 IPC in relation to PW-1. Hence the present Criminal Appeal.
3. Sri Praveen Kumar, the learned Counsel representing the appellants made the following submissions. The Counsel would submit that when the common intention under Section 34 IPC had been disbelieved the injury caused by each one may have to be established by the prosecution and further the injury which led to the death of the deceased also should be specifically established and in the absence of the same, the conviction cannot be sustained. The learned Counsel also would submit that due to political reasons this case had been foisted. The learned Counsel also submitted that in the F.I.R. it was specified that A-1 beat on the head but in the Court it was deposed that A-1 beat on the head and others on the back and there are no corresponding injuries on the back of the deceased as per the medical evidence. The Counsel also pointed out relating to the delay in giving the F.I.R. The learned Counsel also would submit that the presence of PW-3 is highly doubtful since the name of PW-3 was not mentioned in the F.I.R. The learned Counsel also would submit that A-6 also gave a complaint and a crime was registered in relation to the same and the Investigating Officer also admits about this aspect. The learned Counsel also would submit that a peculiar course had been adopted in this matter as far as PW-2 is concerned and specifically permission was not sought for by the prosecution to declare him as hostile but the prosecution cross-examined this witness and hence the evidence of this witness shall be treated just like any other witness in view of Section 154 of the Indian Evidence Act, 1872. The learned Counsel also pointed out to the discrepancies in between the direct evidence and the medical evidence. The possibility of the death due to not giving proper treatment also cannot be ruled out and for reasons best known the concerned Doctors also had not been examined. Further, PW-5 and PW-6 were declared hostile. The learned Counsel also had taken this Court through the evidence of PW-7, PW-8, PW-9 and PW-10. The learned Counsel ultimately would point out in the light of the facts and circumstances the conviction recorded by the learned Judge cannot be sustained. The Counsel also placed reliance on certain decisions in this regard.
4. Per contra the learned Additional Public Prosecutor Mr.Mohd.Osman Shaheed would contend that absolutely there is no discrepancy in between the evidence of PW-1 and PW-3 and accordingly because these are all relative witnesses at the best their evidence may have to be scrutinized with care and caution but the same need not be rejected in toto. In rural areas normally for so many reasons there may be some delay in lodging the F.I.R. and that itself cannot be a ground unless it is a clear case of falsification of the case. The evidence on record is so natural and PW-2 was unwilling to depose the complete truth and his evidence need not be totally discarded since his evidence supports the version of the prosecution to some extent. Though this witness was not treated hostile in view of the facts and circumstances the prosecution was permitted to cross-examine this witness. The learned Counsel also would submit that inasmuch as PW-13 was sick in view of the orders passed under Section 285 Cr.P.C. the evidence of PW-13 had been recorded which is in accordance with law. The learned Additional Public Prosecutor also placed reliance on certain decisions in this regard.
Heard both the Counsel.
5. The case of the prosecution is that the accused are residents of Gondeli village of Paderu Mandal and Rambabu Naidu, hereinafter referred to as "deceased" and his father Krishnamurty Naidu are residents of the same village and Kimidi Suryanarayana Naidu also is of the same village. It is also the case of the prosecution that on 19-1-1997 at about 8 P.M. the deceased, his father Kirshna Murthy Naidu, Suryanarayana Naidu another Narayana Naidu s/o. Appala Naidu, Mariadas, Kimidi Kamaraju Naidu and Podangi Venkataramana and others of the village convened a meeting for selection of village workers like blacksmith, village talayari, cowboy etc. for the year 1997 by holding a meeting at Grama Chavidi of the village. All the six accused came with Gobbangi and bamboo sticks and questioned the persons who held the meeting without informing them and there was verbal altercation. The deceased interfered and tried to pacify with which the accused got enraged and A-1 beat him with Gobbangi stick on the head of the deceased. All the other accused also beat him with Gobbangi sticks and bamboo sticks over the head causing bleeding injuries. With the injuries on the head, the deceased became unconscious and fell down. When Krishna Murthy Naidu, the father of the deceased intervened to prevent the accused from beating him, the A-2 beat him with Gobbangi stick on his right shoulder and caused injury and all the accused ran away from that place. L.Ws.1 to 5 took the deceased to the house and rendered first aid to the deceased. Kimudu Krishnamnaidu went to police station and gave report to H.C. 118 of Paderu P.S. who visited the scene of occurrence in the presence of Bonnagi Suri Padal and Kimudu Demudunaidu. He drafted observation report, seized Gobbangi sticks and bamboo sticks under a cover of mediators report attested by the mediators. The S.I. of Police, Paderu took up further investigation and on recept of death intimation of the deceased he altered the Section of law from Section 324 IPC r/w. 34 IPC to Section 302 IPC and submitted express F.I.Rs. to all the concerned. Autopsy was conducted over the dead body and the Professor of Forensic Medicine opined that the deceased died due to head injury. After committal as aforesaid, inasmuch as the matter was made over to the learned V Additional District & Sessions Judge, Visakhapatnam, evidence was recorded and A-1 to A-6 were found guilty of an offence under Section 304 Part-I IPC and A-2 was found guilty of an offence under Section 324 IPC and A-1 was sentenced to undergo Rigorous Imprisonment for 61/2 years and the other accused were sentenced to undergo Rigorous Imprisonment for 6 years and in addition to the same, each of them to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for 3 years for the offence punishable under Section 304 Part-I IPC and A-2 was further sentenced for the offence under Section 324 IPC and sentenced to undergo Rigorous Imprisonment for one year and the sentences imposed on A-2 were directed to run concurrently.
6. PW-1 deposed that the deceased is his eldest son and on the next Sunday of last year Pongal i.e., 1997 Pongal, a meeting was held by the elders of the village viz., Palasa Valasayya, Palasa Chittibabu, Kimudu Pothurajunaidu, Kimudu Bangarunaidu, Kimudu Kamarajunaidu, Kimudu Narayananaidu and he also attended and the panchayat started at 8 p.m. for appointment of village blacksmith, talayari, cowboys at Ratchabanda (village chavidi) of the village. PW-1 further deposed that the A-1 to A-6 who were before the Court questioning the holding of the meeting made galata, went to their houses and came back with sticks almost immediately. A-1 to A-6 began to shout why the meeting was held for the purpose of appointment of village servants for the above mentioned posts. PW-1 further deposed that when the deceased tried to intervene and pacify not to disturb the peaceful atmosphere of the village even before he was trying to pacify him Balayya (A-1) with a stick in his hand beat the deceased on the back of his head. When PW-1 intervened to save his son (the deceased), Mallayya (A-2) beat him with a stick on his right hand just above the wrist and the rest of the other accused beat the deceased on his back and other accused also beat on the back of the deceased indiscriminately causing bleeding injuries. A-1 used Gobbangi stick and A-2 also used Gobbangi stick and others beat with forest sticks and all the accused escaped from that place. The deceased fell down with injuries there itself and he lost consciousness after receiving the injuries. PW-1 further deposed that they took the deceased to their house and after giving some first aid the deceased was taken to the police station of Paderu and it took five hours to walk and reach Paderu Police Station and PW-1 gave statement (Ex.P-1) to police constable (LW-18) of Paderu Police Station which was reduced into writing and the same was read over and explained to him and he understood Ex.P-1. When he took the deceased to Paderu Hospital the Doctor was not available and on the advice of the employees of the hospital, the deceased was taken to Chodavaram and from there on the instructions of Doctor to Visakhapatnam K.G. Hospital and he returned to the village and the others took the injured to K.G. Hospital. PW-1 was given treatment at Paderu and was sent away and he was not given any treatment at Chodavaram. PW-1 further deposed that five days after receiving the injuries, his son (the deceased) died and after the death of the deceased PW-1 deposed before the Magistrate under Section 164 Cr.P.C. This witness, PW-1, was recalled and he deposed that he can identify the stick used to beat him and his son (the deceased). The stick used to beat him by A-2 is MO-3 and A-1 used MO-1 stick in beating the deceased. The other accused used M.Os.3 to 6. This witness was cross-examined at length and he deposed that there are political groups in the village. It is true that the A-1 is Telugu Desam President of the village and it is true that the deceased is also a friend and a member of Telugu Desam party. PW-1 further deposed that Kimudu Kamarajunaidu is a well to do person of the village and he worked as Sarpanch of the village for six years. PW-1 admitted that A-1 was defeated by the deceased in the elections and that Kamarajunaidu had a grievance against A-1 for defeating him in the elections but Kamaraju had no grievance against his son (the deceased) but he was displeased for the deceased moving with A-1. PW-1 further deposed that it is true that there were disputes between Kimudu family and Dalapathi families of the village and generally Kimudu people follow Kamaraju and it is true that he is a follower of Kamaraju as he is a brother by courtesy to him though not a close relative and it is also true that after his sons are grown up he stopped attending meetings and PW-1 admitted that his house is not visible from Ratchabanda. PW-1 was further cross-examined relating to the alleged scene of offence. He also admitted that he did not tell that particular persons beat the deceased and only stated that the some persons beat the deceased and about 50/60 persons gathered when the incident was going on and he admitted that he did not mention about the beating with Gobbangi sticks but only told that he was beaten with sticks. The village elders did not interfere in the alleged quarrel when himself and the deceased were being beaten and it is true that Kamaraju also accompanied them to police station and it is true that Kamaraju helped in lodging the report and taking the deceased to Paderu, Chodavaram and Visakhapatnam K.G.Hospital. PW-1 denied the suggestion that at the instance of Kamaraju to wreak vengeance against the accused he was mentioning the names of the accused to help the said Kamaraju politically. PW-1 was further cross-examined in relation to Section 164 Cr.P.C. statement and certain suggestions also were put to him which he had denied.
7. PW-3 is the son of PW-1 and the brother of the deceased. Much comment had been made about PW-3 on the ground that his name was not mentioned in the F.I.R. and hence his presence at the scene of offence itself is doubtful. PW-3 also deposed about all the details. PW-3 specifically deposed that his brother tried to pacify them advising them not to unnecessarily quarrel and if anything is there the same can be discussed on the next day morning and he tried to separate the accused people and opposing them and while his brother was speaking like that A-1 beat him on his head on the back side of the head with a stick in his hand. The stick used by him is MO-1. When his father tried to intervene and save the deceased A-2 beat on the right hand just above the wrist about 11/2" away with a stick in his hand and the stick used by A-2 is MO-2. PW-3 further deposed that the other accused also joined A-1 and A-2 and beat the deceased indiscriminately with sticks and those sticks are MO-3 to MO-6 and all the deceased beat the deceased on his head and with those injuries caused to the deceased he had heavy bleeding and he had deposed about all other particulars. This witness was cross-examined at length. Except commenting about non-mentioning of the name of PW-3 and on the ground that this witness is an interested witness, no serious contradictions had been in fact pointed out. The suggestions put to PW-3 had been denied by him.
8. PW-4 deposed that suddenly they heard some sound of some people shouting and coming towards the panchayat and after hearing they could know that they were the accused before the Court and all the accused were named by this witness. PW-4 further deposed that the accused were expressing harshly that they should kill one of the elders on that day and all of a sudden the deceased was beaten by A-1 with a stick on his head. Then A-2 also beat him with another stick. With these injuries received the deceased fell down and all the other accused also beat the deceased indiscriminately with the sticks in their hands and thereafter they dispersed. This witness also deposed about what happened subsequent thereto.
9. PW-5 was permitted to be cross-examined by the prosecution and Ex.P-5 was marked. PW-6 was declared hostile. This witness was examined in relation to Ex.P-6 and no doubt this witness deposed that it is not true that knowing fully well about the seizure of sticks MO-1 to MO-6 a mention was made under Ex.P-6A in Ex.P-6 and knowing fully well about the seizure and also signing the panchanama he signed the panchanama and now he was speaking falsehood.
10. PW-2 is the witness who deposed that A-2 is his step brother and he also deposed about the panchayat and all the accused coming and questioning the holding of the meeting without intimating them and they informed that they can also join the meeting. There was verbal altercation between them and the accused, but this witness deposed that he did not see who beat the deceased and he noticed the deceased on the ground with injuries on his person and he had noticed injuries all over the head. Then he was taken by his wife, father and brother and Kamaraju Naidu to his house since there was bleeding from the nose and ears and this witness also deposed further. This witness, PW-2, was permitted to be cross-examined by the prosecution as he was not prepared to depose regarding witnessing the occurrence and beating the injured as deposed by him earlier but however this witness was not declared hostile. PW-2 also was cross-examined by the defence. Ex.P-2 was marked from the portion of Section 161 Cr.P.C. statement made by PW-2. Exs.P-3 and P-4 were marked in Section 164 Cr.P.C. statement made by PW-2. On the evidentiary value of the evidence of PW-2 submissions at length were made.
11. PW-7 was examined in relation to panchanama, the seizure of sticks, control earth and blood stained earth but however he deposed that he cannot recognize all the sticks seized due to passage of time. PW-8 was examined in relation to the inquest panchanama Ex.P-7. PW-9 deposed that he is working as a Medical Officer, Paderu and he examined Kimudu Krishnamnaidu and found an injury on fore arm of right hand and it is abrasion of 2 x 9 cm. on the right side lower aspect of the fore arm. Ex.P-8 is the certificate issued by him and it was opined that the injury can be caused by a blunt object like a stick. PW-10 is the Head Constable of Paderu Police Station who deposed that he had recorded the statement of Kimudu Krishnamnaidu and read over and explained to him. The said statement is Ex.P-1 and he registered the same as Cr.No.3/97 under Section 324 r/w. Section 34 IPC and issued F.I.R. to all the concerned. Ex.P-9 is the F.I.R. sent to Mandal Executive Magistrate, Paderu. This witness also deposed about the preparation of observation report Ex.P-6 and preparation of rough sketch Ex.P-10 and seizure of blood stained earth, control earth and also sticks and examined certain witnesses. This witness also deposed that by the time he returned to the Police Station A-1 to A-5 came to the Police Station and surrendered. A-6 was later arrested by the police. A complaint was given by A-6 also which he registered as Cr.No.4/97 and the place of occurrence in Cr.No.4/97 is the house of Dalapathi Chiranjeevi (A-6) and it is different from the scene of occurrence in Cr.No.3/97. Cr.No.4/97 was registered under Sections 427 and 324 IPC. The altered F.I.R. issued by the S.I. of Police is identified by him as Ex.P-11. This witness was cross-examined at length.
12. PW-11 is the Inspector of Police who deposed about Exs.P-12, P-13, P-14 and also after completion of investigation filing the charge sheet. PW-12 is the Professor in Forensic Department in Andhra Medical College, Visakhapatnam who received requisition from the C.I. of Police, Paderu, conducted post mortem examination over the dead body of the deceased at 11.35 A.M. and found the following ante-mortem injuries :
1. A transverse surgically sutured wound of 6 cm. in length with 5 interrupted black stitches present on left posterior parietal and left part of occipital region of scalp.
2. Abrasion contusion of 5 x 3 cm. present on posterior parietal region of scalp.
3. A vertical surgically sutured wound of 4 cm. in length with 5 interrupted black stitches present on right temporal region of scalp.
4. Contusion of 31 x 17 cm. present on frontal parietal temporal and occipital regions of scalp.
5. Right temporal burhole present.
6. Fissured fracture of 10 cm. in length present on right posterior parietal and occipital regions of skull.
7. A 31/2 x 11/2 cm. piece of skull bone surgically removed from left posterior parietal region of skull with nibbled margins 4 cms. fissured radiating fracture at the upper margin of the craniatomu wound and another fissured radiating fracture of 5 cms. in length from the lower margin extending 13 cms. in length x left middle cranial fossa of base of skull present.
8. 5 x 4 x 1/2 cm. extra dural blood clot brownish black in colour present on left parietal region of brain, diffused subdural haemorrhage present on right side of the brain.
9. Contusion of 13 x 12 cm. present on right frontal parietal temporal regions of brain.
10. Laceration of 2 x 11/2 x 1 cm. present on right occipital lobe of brain.
11. Contusion of 5 x 41/2 cm. present on left parietal lobe of brain.
13. On internal examination, congestion of internal organs was found; lungs were congested and idimatus; stomach contains 100 ml. of bio-stained liquid, no suspicious smell noticed, urinary bladder empty. Post mortem examination was completed at 12.45 p.m. on 27-1-1997. The deceased would appear to have died of head injury, fracture of skull, intra cranial haemorrhage, contusion of the brain. PW-12 issued post mortem certificate and it is Ex.P-17. Ex.P-16 is the requisition for post mortem by the C.I. of Police. PW-12 opined that the injuries can be caused by blunt objects like sticks shown as M.Os.1 to 6. This witness was cross-examined, but in re-examination this witness deposed that even with the number of internal injuries received on the head, if timely treatment was given it was not possible for the person to survive.
14. PW-13 is the S.I. of Police who was examined by the Junior Civil Judge/IX Metropolitan Magistrate, Bheemunipatnam by virtue of the order made by the Metropolitan Sessions Judge, Visakhapatnam under Section 285 of the Code of Criminal Procedure, 1973. This witness deposed that he was working as S.I. of Police, Bheemunipatnam since 22-10-1997 and previously he worked as S.I. of Police, Paderu from 23-12-1992 to 21-10-1997 and he fell sick and he is bed ridden and not in a position to move from the bed as he met with an accident on 14-12-1998. He further deposed that on 23-1-1997 in Cr.No.3/97 of Paderu Police Station under Section 324 r/w. Section 34 IPC he took up investigation from H.C.188 of Paderu Police Station viz., PW-10 and verified the investigation, visited the scene of offence along with his staff and examined Kimudu Sarasamma (LW-5), Kimudu Pothuraju Naidu, Palasi Kurma Rao and recorded their detailed Part-II statements and he examined the said persons on 23-1-1997 and he could not examine the witness (the deceased) as he was at King George Hospital, Visakhapatnam in an unconscious stage and undergoing treatment. On 25-1-1997 once again he visited Gondili village and examined Kimudi Suryanarayana Naidu (PW-3) who is the brother of the victim and recorded his statement. On 26-1-1997 he received death intimation of the deceased which is Ex.P-18 and as such he altered the Section of law to Sections 302, 324 r/w. Section 34 IPC and the altered F.I.R. is already marked as Ex.P-11. Much comment had been made on the aspect of delay and the recording of statement of PW-3 by this witness on 25-1-1997.
15. It is pertinent to note that as per the version of the prosecution, the deceased died after five days after receiving the injuries. It is also no doubt true that PW-2 did not specifically depose about any of the overt acts attributed to any of the accused. Even as per the chief-examination of PW-2 he is the step brother of A-4. Evidently because of the close relationship though PW-2 supported the version of the prosecution to some extent he was not inclined to support the rest of the prosecution version and had deposed that he had not seen who beat the deceased. It is no doubt true that the delay in recording the statement of witnesses by the Investigating Officer with some delay also can be viewed with suspicion provided there is absolutely no explanation, but here is a case where the death itself occurred after a few days. It is also true that PW-1 and PW-3 are closely related to the deceased. It is also true that another crime was registered at the instance of A-6 but the Investigating Officer specifically deposed that that is something different and the scene of offence also is not one and the same. Findings in detail had been recorded by the learned Judge in this regard.
16. It is also true that the learned Judge recorded a finding that the ground of common intention and invoking Section 34 IPC may not arise. In view of the fact that PW-2 was not specifically declared hostile though the prosecution was permitted to cross-examine, the evidence of this witness may have to be treated just like any other witness and not as that of the evidence of a hostile witness. In VANKA NARASIMHA MURTHY Vs. STATE OF A.P., 2000(2) ALD (Crl) 532 (A.P.) while dealing with Section 154 of Indian Evidence Act 1872 and the hostile witness it was held :
"Although the learned A.P.P. has been permitted to put questions in the nature of cross-examination under Section 154 of the Indian Evidence Act, the witness cannot be dubbed as a hostile witness. The description of the word 'hostile witness' alludes any amount of clarity. The fact remains that they have been put questions in the nature of cross-examination by the learned Counsel who called them as a witness which is permissible in view of the provisions of Section 154 of the Indian Evidence Act. In such a case, it is now established by a catena of decisions of the Apex Court that any part of the statement of the witness, can be taken into consideration. It is not the question of accepting one part in preference to other part of the deposition of the self-same witness. But when the question of appreciation comes, the Court has to seek to reconcile the said statement and try to sift the evidence. Merely because a statement of witness is false to some extent and true to the remaining extent, there is no law which says that the entire statement of the witness shall have to be discarded. As a matter of fact, we have yet to see a witness whose statement can be implicitly relied upon on the premise that the whole statement is true. Discrepancies and embellishments in the statement of witnesses do occur in the natural course. Therefore, it is the plain obligation of the Court to disengage the truth from the evidence available on record by trying to sift the grain from the chaff."
17. In BHAGWAN SINGH Vs. STATE OF HARYANA, it was held that where the Court gives permission to the Prosecutor to cross-examine his own witness, thus characterizing him as, a hostile witness, that fact does not completely efface his evidence and the evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
18. The delay in filing the F.I.R. also is not inordinate. Reliance was placed on ZAHOOR Vs. STATE OF U.P., and TARA SINGH Vs. STATE OF PUNJAB, for the proposition that the delay in filing the F.I.R. is not by itself sufficient to reject the prosecution case unless there are indications of fabrication. The presence of PW-3 also cannot be doubted on the ground that his name was not mentioned in the F.I.R. It is no doubt true that except as against A-1 and A-2 as against the other accused generally a statement had been made by the witnesses that they beat with sticks. In KONATHAM RAMA SASTRULU Vs. STATE OF A.P., 2003(1) ALD (Crl) 746 it was held :
"Mere attribution of specific overt acts in general terms would not do. It must be in categorical terms. Further, such overt acts have to be spoken to and revealed at the earliest point of time. In other words, specific overt acts, if at all existed, should be evident from the complaint itself. If such specific acts are permitted to be submitted at a later stage, the complainant will have the scope to mediate upon and meddle with the evidence to suit his case. Exception taken by the Court to belated complaints is based upon the general principle that the delay in submission of the complaint will enable the complainant to think over, knit a story and mould the entire incident in a manner which may suit his convenience. Therefore, attribution of specific acts unless indicated in the complaint, at least in brief, cannot be permitted to be introduced for the first time during the course of trial."
19. The main ground of attack is that PW-1, the injured and PW-3 the son of PW-1 are closely related to the deceased and there is no other acceptable evidence and the evidence of PW-4 also is general in nature. PW-2 had not supported the version of the prosecution in toto and hence his evidence cannot be believed. In BARATI Vs. STATE OF U.P., it was held that in a murder case it is an error to reject the evidence of witnesses on ground that they are related to the deceased and close relatives of the deceased would normally be most reluctant to spare the real assailants and to falsely mention the name of another person. In BISHAN SINGH Vs. STATE OF PUNJAB, it was held that in a trial for murder the mere fact that the witness is the father of the deceased is not sufficient to discredit his testimony and normally a close relative of the deceased would be most reluctant to spare the real assailants and falsely mention the names of other persons as those responsible for causing injuries to the deceased. In DARYA SINGH Vs. STATE OF PUNJAB, it was held :
"In a trial for the offence of murder where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinize all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the eye witnesses cannot be properly characterized as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinized. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. It cannot be held that such witnesses are no better than accomplices and that their evidence, as a matter of law, must receive corroboration before it is accepted."
20. As can be seen from the evidence of PW-1, PW-3 and PW-4 and also the evidence of PW-2 about the holding of panchayat, inasmuch as PW-2 also had corroborated the evidence of the other witnesses upto some extent, specific overt acts had been spoken to by these witnesses as against A-1 and A-2 and as far as the other accused are concerned, general statement of indiscriminately beating the accused had been made. This is the evidence available on record. Though an attempt was made to show that the place of offence is different and this incident and the incident in relation to the complaint by A-6 occurred at a different place at the same point of time, findings had been recorded and in the light of the evidence of Investigating Officers the same had been disbelieved and this Court is of the opinion that the said findings are well considered findings. On an over all appreciation of the evidence available on record and taking into consideration the fact that the deceased died after five days after the incident and in fact the deceased was moved from one place to another to different hospitals, inasmuch as this is a case where appellants/accused were more concerned with the domination in the village and objected to the panchayat and in the course of the same had attacked, the requisite intention of causing the death as such is not established. The recording of the evidence of PW-13 also cannot be fount fault inasmuch as PW-13 was ill and was unable to move and by virtue of the order passed by the Metropolitan Sessions Judge the evidence of PW-13 was recorded. Apart from this aspect of the matter, as far as the charge in relation to common intention is concerned, specific findings had been recorded by the learned Judge negativing the same. In view of the specific overt acts attributed to A-1 and A-2 and also in the light of the medical evidence available on record, the conviction and sentence recorded as against A-1 and A-2 under Section 304 Part-I IPC are hereby set aside and A-1 and A-2 are convicted under Section 326 IPC and sentenced to undergo Rigorous Imprisonment for a period of three years and also to pay a fine of Rs.500/- each in default to undergo Rigorous Imprisonment for three months. The conviction and sentence imposed as against A-3 to A-6 under Section 304 Part-I IPC are hereby set aside and taking into consideration the evidence of the witnesses to the effect that injuries were caused with sticks, A-3 to A-6 are hereby convicted under Section 324 IPC and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/- each in default to undergo Rigorous Imprisonment for three months. The conviction and the sentence to suffer Rigorous Imprisonment for one year imposed against A-2 by the learned Judge for the offence under Section 324 IPC is maintained. As far as the sentences imposed as against A-2 are concerned the same shall run concurrently. In all other respects, the findings of the learned Judge are hereby confirmed.
21. Accordingly, the Criminal Appeal is partly allowed to the extent indicated above. The appellants/A-1 to A-6 shall serve the rest of the sentences.