SHARMA, J. - (1.) THE appellants two in number, were accused on the file of learned Additional Sessions Judge, Fast Track, No. 2, Jhunjhunu, who vide judgment dated April 2, 2003 convicted and sentenced them as under:- Subhash Chandra and Maha Singh: U/s. 302/34 IPC: Both to suffer imprisonment for life and fine of Rs. 200/ -. Maha Singh u/s. 325 and Subhash Chadra U/s. 325/34 IPC: To suffer rigorous imprisonment for one year and fine of Rs. 100/ -. U/s. 323 IPC: Both to suffer simple imprisonment for six months and fine of Rs. 100/ -. U/s. 341 IPC: Both to suffer simple imprisonment for six months and fine of Rs. 100/ -. In default of payment of fine further suffer simple imprisonment for seven days for each section. Sentences were ordered to run concurrently.
(2.) THE prosecution case as unfolded during trial is as under:- On December 16, 2001 informant Vijay Pal (Pw. 1) submitted a written report (Ex. P-1) at Police Station Khetri stating therein that on the said day around 6. 30 AM while his brother Ashok Kumar was going to well for watering the field and reached in front of the house of Subhash Chandra, at that time Maha Singh, Shanti Devi, Narendra, Pushpendra and Maya Kaur armed with Jellies, Lathis and Iron-pipe surrounded Ashok Kumar and opened assault. Subhash Chand thrust Jelly in nostrils of Ashok Kumar and threw him on the ground. On hearing ruckus, informant and Sarkaur Devi rushed to the place of incident and tried to intervene, but the informant was also beaten up. As a result of injuries Ashok Kumar lost consciousness and he was removed to Narnaul hospital and SMS Hospital Jaipur, where he died. His body was subjected to inquest proceeding and postmortem examination. THE informant further stated that on account of land dispute the accused were inimical and belaboured Ashok Kumar. On that report a case under sections 341, 323, 144, 148, 149 and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu. Charges under sections 302/34, 325, 325/34, 323 and 341 IPC were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 11 witnesses. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. Three witnessed were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. Death of Ashok Kumar was undeniably homicidal in nature, Vide postmortem report (Ex. P- 17) following injuries were found on the dead body:- 1. Bruise 5 x 2cm faint reddish in colour placed obliquely on Rt. side back of chest middle 1/3. 2 Bruise 1 x 1/2 cm reddish in colour on dorsum of Rt. hand. 3 Multiple abrasions 1 x 1/2 cm to 1/2 x 1/4 cm with fresh clotted dried blood on dorsum of Rt. foot just below Lt. medial malleolus and just above Rt. knee joint anteriorly. 4 Lacerated wound 3 x 3/4 cm x cranial cavity deep wit fresh clotted blood involving ala of Lt. nostril upper & lower portions including Lt. nostril itself with abraded & irregular margins around the wound. According to Dr. P. C. Vyas (Pw. 11), who performed the autopsy the cause of death was excessive hemorrhage due to injuries to base of skull, brain and blood vessel. Vijay Pal (Pw. 1) vide injury report (Ex. P- 14) received following injuries:- 1. Swelling on middle finger of left hand 10 x 2. 5cm (all around) on ring finger of left hand dorsal surface, distal 2/3rd part 6 x 2cm and dorsal surface of left 8 x 4cm (swelling bluish in colour) Vide X-ray report (Ex. P-16) fracture of distal phalanx of middle and ring finger of left hand were found. Learned Senior counsel appearing for the appellants while assailing the impugned finding made following submissions:- (i) The initial case of the prosecution was that not only the appellants but other members of their family were also involved in the incident. However, the said version of complainant was found false by the Investigating Officer and charge sheet was filed only against the appellants. In such a situation the fact of not only gross over implication is writ large on the face of it but the propensity of complainant party to falsely implicate is also reflected. (ii) The FIR has been lodged after inordinate delay which strongly reflects about due deliberations and concoction with which the same has been tailored. (iii) The FIR does not contain name of so called eye witness Hari Singh (Pw. 3 ). (iv) Other two eye witnesses Vijay Pal (Pw. 1) and Smt. Sarkaur (Pw. 4) are highly partisan being closely related to deceased. Their testimony calls for a critical appraisal. Learned trial Judge has fallen in error in placing reliance on the forensic worth of testimony of these two witnesses. (v) The site plan does not corroborate the ocular version of the eye witnesses. (vi) Contemporaneous conduct of Hari Singh (Pw. 3) belies his presence at the place of incident as also negates the possibility of his being eye witness of the impugned incident. (vii) The independent witnesses belonging to near vicinity have been held back by the prosecution, for which an adverse inference should be drawn against it. (viii) Attending facts and circumstances of the case it is strongly reflected that Vijay Pal (Pw. 1) and Sarkaur (Pw. 4) did not witness the assault. (ix) According to medical examination of Vijay Pal (Pw. 1) so called injury could not have been caused at time of alleged incident. (x) The prosecution failed to spell out the proximate cause as also genesis of occurrence of the incident. In such a situation, the version of complainant party needs to be viewed with suspicion. (xi) So called recoveries effected at the instance of appellants have not been proved with the aid of cogent and convincing evidence. The FSL report also does not connect the so called weapons with the impugned incident. (xii) The defence evidence has been rejected by learned trial Judge with callous indifference, which caused grave prejudice to appellants. Per contra learned Public Prosecutor supported the reasoning of learned trial Judge and took us through the material on record. We have reflected over carefully the submissions advanced before us.
(3.) THE prosecution case is founded on the evidence of Vijaypal (Pw. 1), Smt. Sarkaur (Pw. 4) and Hari Singh (Pw. 3 ). Vijaypal is the brother whereas Sarkaur is the mother of deceased and it is contended by learned Senior counsel that since Vijaypal and Sarkaur are highly partisan witnesses being closely related to the deceased, their evidence should be discarded. We are unable to agree with the learned Senior Counsel. Relationship is not a factor to affect the credibility of a witness. A witness is normally to be considered independent. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. Foundation has to be laid if plea of false implication is made. In Salim Sahab vs. State of MP (2007)1 SCC 699, the Apex Court considered the fact of interestedness of the witness and observed that:-      " Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal 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. " In Dalip Singh vs. State of Punjab (AIR 1953 SC 364) it was held:-      " 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. " ;