The main legal point established in the judgment is the need for careful scrutiny of evidence, especially when presented by family members or related witnesses, and the consideration of the nature and intent of the assault in determining appropriate charges and convictions.

Kishore Kumar Mandal, J.

The two appellants herein are father and daughter who have been held guilty by the learned trial court vide judgment of conviction dated 18.12.2012 passed in S.T. No. 104 of 2003 under section 302 IPC and vide order of sentence dated 19.12.2012 they have been sentenced to undergo R.I. for life and fine of Rs. 5000/- each with default clause. They have filed the present appeal assailing the aforesaid judgment of conviction and sentence.

2. The factual profile of the case, as unfolded in the Fardbayan (Ext.1), lodged by Ram Kuwar Singh (P.W.4) on 14.09.2001 at 11.30 hours and recorded by ASI Kedar Singh (P.W.8) of Mairwa police station, in brief, is that he was separated from his brother Radha Singh (appellant) several years ago but were living in one house separated by wall. On the relevant date, there was a quarrel in the morning between the appellant Radha Singh and his son (deceased) over flow of water from the hand pump which was pacified by him. His son thereafter went on the roof of the house which was unseparated. He heard the cry of his son and ran to the roof followed by his wife Dhanpatiya Devi (P.W.2) and his younger son Ashok Kumar Singh (P.W.1) and saw the deceased lying senseless on the roof having received an injury on his head. He could see the appellant Radha Singh and Saroj Singh (aged about 18 years) and co-accused Dhanu Singh (aged about 12 years) assaulting the deceased with the head of Lathi (hurra). They started raising cry. In the meantime, Sudarshan Singh, son of the appellant Radha Singh arrived with a Dhab (sharp-cutting weapon) in his hand along with his mother Lilawati Devi armed with bamboo. Co accused Sudarshan Singh threw weapon and took Lathi from co-accused Dhanu Singh and assaulted the informant whereas the wife of the appellant Radha Singh assaulted P.W.2, the wife of the informant and his son Ashok Kumar Singh (P.W.1). On Hulla, neighbours arrived and intervened whereafter the accused persons retreated. The injured who was lying senseless was carried to the hospital where the FIR was lodged. The injured was later referred to Gorakhpur for better treatment where in course of treatment he died and section 302 IPC was added. As the deceased died at Gorakhpur the death inquest proceeding was carried out at Gorakhpur and post mortem of the dead body was also conducted at Gorakhpur by the autopsy surgeon namely Dr. Ashray Narayan Lal Gupta (P.W.10) on 16.09.2001. Lodging of the Fardbayan initiated the investigation in course whereof statements of the witnesses were recorded, the place of occurrence was inspected in course whereof dried blood-stain marks were found on the roof top. Upon receipt of the post mortem report (Ext.3) the charge-sheet was filed against the present appellants and two other accuseds whereon cognizance of the offence was taken and the case was committed to the court of sessions. Be it noted that the trial of the co-accused Dhanu Singh was separated as he was found juvenile in conflict with law. The trial court framed the charges which were read over/explained to the appellants to which they pleaded not guilty. The defence is complete denial of their involvement in the case.

3. In order to bring home the charges, the prosecution, in all, examined 10 prosecution witnesses. P.W.1 Ashok Kumar Singh and P.W. 2 are the son and wife of the informant. P.W.3 Kamlavati Devi is the wife of the deceased. P.W. 4 is the informant. P.W. 5 Veer Bahadur Singh is the neighbour who cooperated the informant in carrying the injured to the hospital. He has flatly stated that his statement was not recorded by the I.O. during investigation. P.W. 6 is another co-villager and agnate of both sides who has been declared hostile by the prosecution and cross-examined. The defence also cross-examined him. P.W. 7 was then posted as Medical Officer at Mairva Primary Health Centre who had initially treated the deceased and prepared the report (Ext.2). He also medically examine