Sharma, J. - (1.) THIS appeal has been filed by Kamalsingh who has been convicted by the learned Sessions Judge, Bharatpur, under sec. 304-11 I. P. C. and sentenced to seven years' rigorous imprisonment.
(2.) THE prosecution case is that on the 18th July, 1953 sometime in the evening, the appellant Kamalsingh and his brother Poorna laid a charge against Mst. Shyamo, the mother of Kanchan (hereinafter to be referred to as the deceased) ana one Mst. Somoti, that they had stolen a lota belonging to them. THE two women denied the charge, on which they were taken before Mst Sufedi. Jawali, the brother of the deceased also accompanied them. Mst. Sufedi denied having said anything to the appellant and his brother about the theft of the lota. When the party was returning from the house of Sufedi, there was verbal altercation between Mst. Somoti on one side and the mother of the appellant on the other. In the midst of this altercation, the appellant gave a shoe beating to Mst. Somoti and when Jawali intervened, he was also beaten. Jawali raised an alarm, on which many persons including the deceased came to the spot. THE appellant picked up a pati which was lying nearby and gave a blow with it on the head of the deceased who fell down. THE deceased was taken to the hospital at Bharatpur, where he died at about 4 A. M. THE first information report of the incident was made at Sewar Police Station at about 9 A. M. on the 19th of July, 1953. THE Police arrested the appellant and his brother Poorna and recovered a pati, Ex. 1, and some blood stained earth and bandi of the deceased which were sent for chemical examination. After investigation, the case was cha-llaned in the court of the City Magistrate, Bharatpur who discharged Poorna, but committed the appellant to take his trial under sec. 304-II of the India Penal Code. The accused denied the charge and pleaded that the case was an outcome of enmity. Six direct witnesses for the occurrence were produced by the prosecution, The learned Sessions Judge found that the appellant was guilty of culpable homicide not amounting to murder under sec. 304 II of the Indian Penal Code and consequently, convicted and sentenced him as above. Against this Judgment of the learned Sessions Judge, the appellant has come in appeal to this Court. It was argued by Mr. M M. Tiwari on behalf of the appellant that some of the witnesses mentioned in the first information report were not examined by the prosecution. He pointed out two such witnesses namely Kirori and Kishani. He further argued that the names of the prosecution witnesses Pati and Ratansingh were not mentioned in the prosecution report but they were examined by the prosecution which creates a doubt as to their presence at the time of the occurrence. It was further argued that it comes in defence evidence that the deceased was suffering from epilepsy fits and on account of" this he received an injury by falling down upon some stones which were lying on the ground. It is suggested that probably the deceased had one of these fits at that time and consequently fell down. It was further argued that Mst. Sufedi and Mst. Shyamo were important witnesses and they were not produced. Learned counsel also argued that it is in the evidence of Ratansingh P. W. 3 that the deceased had a dhoti on his head at the time of the incident and it is improbable that under such circumstances, the external injury on the head as found by the medical examiner, could be caused Learned counsel referred to a ruling of their Lordships of the Supreme Court in the case of Habeeb Mohammad vs. State of Hyderabad (I), in order to support his argument that if material witness is not produced by the prosecution, strong presumption should be made in favour of the defence and against the prosecution Lastly, it was argued that at any rate the sentence is severe. On behalf of the State it has been argued by Mr. R. A. Gupta that there were as many as six eye witness in this case who have all unanimously deposed that the appellant struck the deceased with a pati and thereby caused injury which led to the death of the deceased. It was argued that the fact that some of these witnesses were closely related to the deceased would not make their evidence worthless unless, there were strong grounds to suggest that they had some motive to swear falsely. It was further argued that the first information report shows that there were as many fifteen to sixteen persons present on the spot before the occurence took place and the fact that three or four persons have been named does not mean that other prosecution witnesses were not present It was pointed out that where in the first information report three persons i. e. , Kirori, Kishni and Karansingh are mentioned it is also mentioned that other persons were also present. I have considered the arguments of both the learned counsel. The prosecution produced six witnesses out of whom Shiv Lal P. W. 9 is the further of the deceased. Mst. Somoti P. W. 8 is his mother, Jawali PW. 6 is his brother and Karansingh P. W. 5 is his uncle. Thus, it cannot be denied that four of the prosecution witnesses are closely related to the deceased. The question however, is whether, their evidence should be altogether discarded. It is no doubt true that when some of the prosecution witnesses are closely related to the person against whom an offence has been committed, their statements should be read with caution. But that does not mean that their evidence should be discarded altogether specially when there is some independent support of their evidence. In this case, the above named four witnesses have been cross-examined at length and the learned counsel for the appellant was unable to point out any such thing in their evidence which would make their evidence unworthy of credit. They have all deposed that first there was some scuffle between Jawali and the appellant and therefore, the appellant picked up a pati and dealt a blow with it on the head of the deceased which resulted in the external injury found in medical examination Their evidence is supported by the evidence of Ratan Singh P. W. 3 and Patiram P. W. 4 Patiram is mentioned in the first information report and so it cannot be said that his name was conceived of afterwards Of course Ratansingh is not mentioned by name in the first information report, but the first information report shows that there were other persons also besides those who were named therein. Ratan Singh lives not very far from the house of the deceased and that of Karan Singh where the occurence is said to have taken place. It is, therefore, not improbable that he might have been attracted to the scene when he heard the alarm which was being raised Shiv Lal too not is named in the first information report, but the house of the witness is near the house of Karan Singh near which the occurrence took place and it is not improbable that he was attracted to scene when he heard the cry of his wife Mst. Somoti or of his son Jawali. The occurence took place near the house of Karansingh and his name is mentioned in the first information report. Thus it cannot be said that he could not be present at the spot. Reading the evidence of all those six witnesses carefully, no doubt is left in my mind that the story put forward by them is true. No doubt Ratansingh witness says that the deceased had a dhoti over his head when the occurrence took place, but he was not asked whether the dhoti was used as a turban or it was placed on the head in such a manner that if a blow was struck over it,no external injury like the one found on the head of the deceased could be caused. It is quite possible that the head might be half covered with the dhoti or there might be only one layer of it over the bead and under such circumstances, a below by a pati can every well cause the external injury like the one received by the deceased. However, reading the evidence of other witnesses, an impression is created in my mind that it is due to faulty observation of Ratansingh that he has said that there was a dhoti over the head of the deceased at the time of occurence. All other witnesses were specifically asked in cross-examination as to whether his head was covered and they have clearly said that it was bare. The medical evidence shows that there was an external injury in the shape of a contusion 6"x4" on the left side of the head of the deceased and on post mortem examination, it was found that there was a fracture of bone underneath at four places. Learned counsel referred to the ruling of their Lordships of Supreme Court in the case of Habeeb Mohammed vs. State of Hyderabad (1), and it was argued that this ruling lays down a principle that if a material prosecution witness is not examined, presumption should be drawn in favour of the accuse i. On a reading of the said decision I do not find that any broad principle has been laid down that in any case where one or two out of several prosecution witnesses who can throw some light upon the case have not been examined, the entire prosecution evidence should be discarded and the accused should be acquitted. In that case, Mr. Ghulam Afzal Bia-bani who was not examined was a very important witness and instead of examining him who was a high police officer the prosecution examined a petty police officer and it was held that under the circumstances, the evidence produced by the prosecution could not be held to be sufficient to warrant conviction. In the present case, as has been said above, six witnesses have been examined. Out of the persons named only two persons Kishni and Kirori have been left out. It has not been shown how their evidence would have been most important than the evidence of the prosecution witnesses who have been examined in this case. In another case namely that of Abdul Gani vs. State of Madhya Pradesh (2), their Lordships of the Supreme Court held that: - ''it is no doubt very important that as a general rule, all Crown witnesses should be called to testify at the hearing of the prosecution, but there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desires to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought; and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such cirticism as may be levelled at the absence of possible witnesses. " As has been said above, I have considered the evidence as a whole and have taken into consideration, the persuasiveness of the testimony of the witnesses examined in this case, in the light of such criticism as has been levelled at the absence of the witnesses Kishni and Kirori, by the learned counsel for the appellant. It was also observed in Abdul Ghanis's case (2) referred to above that "though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from their evidence, where it is not possible to say that the prosecution case is a complete fabrication and where it appears that certain murders have resulted from a riot in which some at least of the several accused have taken part, the Court should make an effort to disengage the truth from the falsehood and to sift the grain from the chaff. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue. " I may refer to the case of Karnail Singh vs. State of Punjab (3), in which it has been laid down that "the corroboration that is required in the case of the testimony of a witness who is the relation of the deceased in a murder case is not what would be necessary to support the evidence of an approver but what would be sufficient to lend assurance to the evidence before the court and satisfy the court that the particular persons were really concerned in the murder of the deceased. " In this case, the evidence of four relations of the deceased has been corroborated by the independent evidence of Pati and Ratan Singh against whom the only thing pointed out by the learned counsel for the appellant was that the family of the deceased served as barber to these two witnesses. I do not understand how a barber can influence the person whom he serves to swear falsely in a case of murder or culpable homicide against the accused. I am fully satisfied by the evidence on the record and consequently, agree with the learned Sessions Judge that an offence under sec. 304-11 of the Indian Penal Code was made out against the accused, as he dealt a blow with a Pati with such a force on the vital part like head of the deceased that the ought to have known at least that it was likely to cause death. I do not see any ground for interference with the conviction of the accused. As regards the sentence, the accused is of twenty years of age. There was some scuffle between Jawali on one side and the accused the other and a young lad like him might have in the heat of moment dealt a Pati blow to the deceased also who was on the spot and from whom he might have feared some assistance to his brother. Under these circumstances, I think that seven years' rigorous imprisonment would be rather a severe sentence. I, therefore, reduce it to four years' rigorous imprisonment. The appeal is partly allowed, the conviction under sec. 304-11 of the Indian Penal Code is maintained but the sentence of rigorous imprisonment is reduced from seven years' to four years' rigorous imprisonment. . ;