The testimony of family members is credible and should not be dismissed solely due to their relationship with the victim, especially in the absence of independent witnesses.

JUDGMENT :

(Ramesh Chand Malviya, J.)

The present appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the Judgment of conviction dated 19.02.2013 and order of sentence dated 23.02.2013 passed by the learned Adhoc Additional and Sessions Judge-IV, Supaul (hereinafter referred to as the learned ‘trial Court’) in Sessions Trial No. 06 of 2007/60 of 2011 arising out of Baptiyahi P.S. Case No. 30 of 1999 instituted for an offence punishable under Sections 323, 324, 341 and 307/34 of the Indian Penal Code, whereby and whereunder the appellants have been convicted for the offence punishable under Sections 307/34 of the Indian Penal Code, whereby and whereunder the appellants have been convicted for the offence punishable under Sections 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of seven years each and also liable to pay fine of Rs. 10,000/- (Ten Thousand) and in default of payment of fine, they are further directed to undergo simple imprisonment for six months.

2. Heard Mr. Pramod Mishra, learned counsel for the appellants assisted by Mr. Suraj Kumar and Ms. Geeta Kumari and Ms. Anita Kumari Singh, learned APP for the State.

3. The prosecution case in brief is that the on the basis of fardbeyan of the informant, on 18.07.1999 at 0500 hours, the informant aforesaid gave his fardbeyan in his Gohal to the S.I. of P.S. concerned stating therein that in the previous night at 10 PM, the informant retired to his bed in his Gohal and when he was asleep, then at 01:00 AM (night) he received knife blow on his shoulder upon which he woke-up and saw his nephew Sita Ram Yadav s/o Raso Yadav was standing holding knife in his hand then informant tried to get hold of him but other accused persons including co-appellant namely Phutai, Bhago Yadav, Sukhai Yadav, Raso Yadav, Narain Yadav, Mahadeo Yadav, Binod Yadav, Dhulki Yadav and Radheshyam Yadav came from behind holding knife and Talwar in their hands and co-accused Bhutai Yadav and Raso Yadav ordered to kill the informant upon which the co-accused persons started giving knife blow, over his mouth, upon which his lip and jaw including his teeth got injured and hung due to severe cut injuries. On hulla, informant’s wife, Bahulia Devi (PW-4), his two daughters Buchni Devi and Sobha Kumari, his son Ramphal Yadav (PW-1) and his daughter in-law Babita Devi woke up and came running to the place of occurrence and then the accused persons started fleeing away seeing the above inmates of the house. Villagers Ganga Yadav, Sobhi Yadav and several others came to witness the occurrence. The cause of occurrence as stated in his fardbeyan is the long-standing land dispute going between them and out of this enmity they are cultivating his land forcibly. Moreover, the accused persons hurled killing threat upon informant several time before and at one time they took away his ox forcibly at the point of gun.

4. On the basis of said fardbeyan, the Baptiyahi P.S. Case No. 30 of 1999 was registered for an offence under Sections 323, 327, 341 and 307/34 of Indian Penal Code was instituted and investigation was taken up by the police, thereafter charge-sheet has been submitted against the accused persons. After taking cognizance, the case was transferred to the court of learned Judicial Magistrate for commitment. The case was committed on 19.12.2006 and sent to the learned court of Session Judge for the trail and disposed of the case.

5. To substantiate the charges, the prosecution has examined as many as seven witnesses in this case, out of them, PW-1 Ramphal Yadav, PW-2 Dasan Yadav, PW-3 Ganga Ram Yadav, PW-4 Jhulia Devi @ Bhabulia Devi (wife of the informant), PW-5 Luxmi Yadav, PW-6 Dr. Anzar Ahmad and PW-7 Chakram Yadav (informant). On the other hand, the defence has also adduced evidence both oral and documentary in this case which are as follows:

(i) Defence has examined only one defence witness namely V