M.K.Basu, J. - (1.) This Criminal Appeal has been directed against the judgment and order dated 30th March, 1987 passed by the learned Additional Sessions Judge, Purulia in Sessions Case No. 21 of 1985 (Trial No. 23 of 1986) of that Court which arose out of G.R. Case No. 1977 of 1982 whereunder the learned Judge found the accused-appellants guilty of an offence under section 304 part-I read with section 34 IPC and convicted them thereunder and sentenced each of them to suffer rigorous imprisonment for ten years. Being aggrieved by that judgment and order of conviction and sentenced the convicts have preferred the present appeal challenging the impugned judgment as illegal, incorrect and unsustainable.
(2.) The prosecution case has revealed from the materials on record was as follows. On 24th October, 1982 early in the morning at about 5-00 a.m. Chepu Mahato (the deceased) son of Indra Narayan Mahato of village Banbahal under P.S. Purulia was going towards the house of one Nibaran Mahato of village Pathardhi to fetch money. Behind him at a distance of about 30 cubits his brother Khandu Mahato (the informant & P.W.2) was also going towards the same direction with a view to washing his hands and mouth to a nearby tank. Sometime after Khandu found the accused persons, namely, Judhisthir, Bibhatsa, Haren and Maliram Modi of the same village to come on that road and to assault Chepu with lathis and axes while he was walking along the eastern bank of the Upar Sayer Tank. Seeing this Khandu started crying and rushed to the place of occurrence and on sight of him all the accused persons ran away and he saw Chepu lying in a pool of blood with bleeding injury on his head. In the meantime hearing the alarm raised by Khandu some villagers from the locality also rushed there, namely, Paltu Mahato, Rohi Mahato and Biru Mahato came to the place of occurrence and with their help Khandu took the injured Chepu first to the house of Paltu and after procuring a cot therefrom they carried Chepu in that cot to Purulia P.S. There he narrated the incident to the OC who recorded the same and got it signed by him. Thereafter they took the injured to Purulia Sadar Hospital where he was admitted to, after 14 days he succumbed to his injuries. Police first registered on the basis of the said FIR a case under sections 324/326/34 IPC against the above mentioned accused persons and took up investigation of the case but later on when the injured died, section 304 IPC was added to the FIR. After completion of investigation police submitted charge-sheet against the accused Judhistir, Bibhatsa @ Bibhuti and Harendra Nath Modi under section 304 part-I read with section 34 IPC. A case being a Sessions trial one was committed to the Court of Sessions by the learned SDJM for trial thereof. The learned Additional Sessions Judge framed charge against all the three appellants under the abovementioned section of IPC when all of them pleaded not guilty and claim trial. The defence case as disclosed from cross-examination of witnesses and 313 statements was one of innocence and false implication. The learned trial Judge after considering the evidence adduced by the prosecution came to the finding that it had been able to substantiate the charge against all the three accused to the entire satisfaction of the Court beyond any reasonable shadow of doubt and accordingly, he found them guilty of the offence with which they were charged and convicting them there under awarded the above mentioned sentence.
(3.) The learned trial Judge has relied upon the testimony of the PW 2 who is the sole eyewitness to the occurrence. According to him, although this PW 2 happen to be the brother of the deceased and thus a relation-witness, that has no adverse effect upon his trustworthiness. In this respect he has relied upon the principle settled by the apex Court that a witness does not lose credibility, simply because he is related to the deceased although of course his evidence requires careful scrutiny in order to ascertain whether it suffers from embellishment or exaggeration due to interestedness. But it never should be thrown away as inherently incredible. On the other hand, the evidence of a related witness rather provides some guarantee of truth since it is most unlikely that he would screen the real culprit by falsely implicating some other accused persons. The learned Judge has then scanned the evidence of PW 2, Khandu Mahato in the light of his cross-examination and has found that there is nothing unnatural or improbable in his statements or conduct as a witness and his evidence has been quite consistently corroborated by the medical evidence as well as the testimonies of the other witnesses. Learned Judge has also found that there has been no discrepancies on the chief particulars of the allegations between the FIR and his deposition before the Court and the discrepancy which according to the learned defence lawyer appear to have emerged between the two are touching upon the most unimportant and minor details so that they do not affect the reliability of the witness. Learned trial Judge has also held that there has been no delay in the lodging of the FIR and there is absolutely no reason for suspecting the genuineness of the allegations made in the FIR which does not suffer from any embellishment.;