SHARMA, J. - (1.) THIS appeal owes its origin in the judgment dated March 15, 2000 of the learned Additional Sessions Judge, Ramganj Mandi District Kota rendered in Sessions Case No. 49/1999, whereby the appellants were convicted and sentenced as under:- Shri Ram: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment. Shobha Ram: U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment.
(2.) ON February 16, 1999 at 5. 30 PM informant Mohan Lal handed over a written report to the SHO Police station Chechat at Camp Alod. It was stated in the report that Shri Ram and Shobha Ram (appellants) had crushed the head of Trilok chand (since deceased) as a result of which he died on the spot. A case under sections 302, 341 and 34 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the Learned Additional Sessions Judge Ramganj Mandi District Kota. Charges under sections 302 and 302/34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 14 witnesses. In the explanation under section 313 Cr. P. C. , the accused claimed innocence and stated that they have been implicated falsely. In defence two witnesses were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. As per postmortem report (Ex. P-18) deceased Trilok Chand sustained following ante mortem injuries:- 1. Lacerated wound 3 x 1cm over middle of chin. 2. Multiple abrasions all over Rt. cheek. 3. Rt. cheek is compressed. In the opinion of Doctor Girish Chandra Sharma (Pw. 5) the cause of death was coma caused by head injury. '' A further look at the material on record reveals that informant Mohan Lal is not the eye witness of the occurrence. The FIR was lodged by him on the basis of information supplied by Basanti Lal (PW. 6 ). The prosecution case is mainly founded on the testimony of Basanti Lal (PW. 6) and Manohari Bai (PW. 2 ). Basanti Lal in his deposition stated that while Shobha Ram was sitting on the chest of Trilok Shriram was causing injuries with stones on his head. As a result of which Trilok died on the spot. Basanti Lal then went back to the village and narrated the incident to Mohan Lal. In the cross examination Basanti Lal admitted that Trilok was his Jija (brother in law) and he had also seen Manohari Bai wife of Trilok lying unconscious on the nearby field. Testimony of Basanti Lal has been criticised by learned counsel thus:- (i) He is a chance witness and his testimony does not get corroboration from the site plan (Ex. P-3 ). According to him the incident took place at the well of Bhairulal but site plan Ex. P. 13 shows that the place of occurrence was public thorough fare. (ii) His conduct in not attending his unconscious sister Manohari Bai and injured Jija Trilok was highly unnatural. (iii) The accused were not armed with deadly weapons, still he did not intervene and went back to the village. (iv) He claimed to have communicated the information about the incident to Police Chowki Alod, but Constables Mathura Lal (PW. 12) and Bhanwar Singh (PW. 13) deposed that some villagers came to the Chowki and gave information about the incident. Manohari Bai (PW. 2) the wife of deceased deposed that on hearing the cries when she turned she saw her husband lying on the way, while Shobha Ram was sitting on his chest, Shri Ram was inflicting injuries with stones. Her husband died on the spot. In the cross examination she stated that after seeing the incident she became unconscious. The learned counsel pointed out that presence of Manohari Bai at the time of incident could not be established. She was not named in the FIR and she did not see Basanti Lal around the place of incident. He evidence that 10-12 injuries were caused by the appellants to the deceased does not find corroboration from the postmortem report. Learned counsel for the appellants also raised following contentions:- (i) Non production of Rajendra Sharma. Investigating Officer has adversely affected the prosecution case. (ii) FIR was transmitted to the concerned Ilaqa Magistrate on Feb. 18, 1999 i. e. , after two days and this delay has not been explained. (iii) No motive was assigned to eliminate the deceased. The prosecution failed to explain as to who covered the dead body with clothes. The police found the dead body covering clothe but the mystery could not be unfolded as to who covered the dead body.
(3.) PER contra the learned Public Prosecutor supported the impugned judgment and urged that Basantilal and Manohari Bai are the witnesses sterling worth and their testimony was rightly relied on by the learned Trial Court. Having carefully scanned the record we noticed factual situation of the case thus:- (a) Both the eye witnesses of the occurrence viz. Basanti Lal and Manohari Bai were closely related to the deceased. (b) The death of the deceased was homicidal. (c) The dead body was lying covered with cloth on the way near the field of Bheru Lal. (d) The accused examined two defence witnesses to show that Trilok was crushed under the stones of a wall and on the day of the incident the accused had gone to attend Mahashivratri fair at Eklingpura. It is well settled that when a witness holds a position of relationship favouring the prosecution, it is incumbent on the count to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of acts appearing from the record. It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour possible prejudice. Even where there is only sole eye witness of a crime, a conviction may be recorded against the accused provided the court which hear such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the prosecution evidence in support of the testimony of a solitary witness particularly when such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill mind is suggested. In Kartik Malhar vs. State of Bihar (1995)8 JT (SC) 425, the Apex Court held that "we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this court as early as in Dalip Singh's case (AIR 1953 SC 364) in which this court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness Speaking through VIVIAN BOSE, J. , the Court observed para 25 of AIR 1953 SC):- " We are unable to agree with the learned Judges of the High Court that the testimony of two eye witnesses require corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. " ;