JUDGEMENT :

Shree Chandrashekhar. J.

Harla P.S Case No. 136 of 2007 was lodged on 30.08.2007 under sections 323, 324, 307 and 302 read with section 34 of the Indian Penal Code (in short, IPC). In his fardbeyan which was recorded at 23:15 hrs. on 29.08.2007 at Ward No. II/A, Bokaro General Hospital, Surendra Pratap Choudhary @ Nakku Choudhary has stated that in the afternoon at about 01:00 PM he got an information at Patel Chowk that Ashok Kumar Ram @ Ashok Ram, Vijay Kumar Ram and Ram Chandra Ram were assaulting his brother, namely, Raghvendra Pratap Choudhary @ Buda and Manish Kumar Singh near Qr. No. 1199, Street-16, Sector IX-B. He had gone running there and tried to save his brother and in the process received sword injury in his finger. He, however, escaped when Ashok Kumar Ram threatened to assault him with sword. After the accused persons left the place he has gone there and found injuries on right hand and head of his brother - he has seen head injury on Manish Kumar Singh also. Thereafter he ran to his house to inform his father and brought his brother on motorcycle to Bokaro General Hospital, however, in Course of the treatment his brother died. Manish Kumar Singh who was also seriously injured was brought to the hospital by his father and there was a bleak chance of his survival. Upon such allegations the appellants were arrested the next day from their house. In Course of the investigation Manish Kumar Singh was examined by the investigating officer who has collected his injury reports prepared by Dr. Manish Kumar and Dr. Anand Kumar. There are two persons, namely, Shiv Shankar Pandey and Mithlesh Kumar Mishra who have made a statement before the investigating officer that they have seen the appellants wielding arms climbing the stairs to their house. Dr. Pramod Kumar who has conducted the postmortem examination has found incised wounds on the left side of the scalp and elbow joint of Raghvendra Pratap Choudhary. He has found the following injuries on the dead body:

External Injury :

(i) Incised wound on left side of scalp

(ii) Incised wound on elbow joint.

2. After the investigation a charge-sheet was submitted against the accused persons and they have faced the trial on the charge under sections 323, 324, 307 and 302/34 IPC. In the trial, the prosecution has examined 11 witnesses - Manish Kumar Singh who was the victim was examined as PW-7, however, he has not supported the prosecution case. Shiv Shankar Pandey and his father who were important witnesses for corroborating testimony of the informant were also declared hostile. The learned 1st Additional Sessions Judge has held that there was enmity between the accused persons and family of the informant and the injured witness turning hostile is not a circumstance of such magnitude so as to disbelieve the prosecution case. He has further held that PW-3 and PW-4 are trustworthy witnesses and minor discrepancies in their testimony has not affected the prosecution case. On appraisal of the materials on record, the learned 1st Additional Sessions Judge has returned the following findings:

"32. It is pertinent to mention at very outset that PW-3 & 4 are closely related with deceased as his elder brother and father whereas PW-10 is said to be friend of deceased. It is settled principle of law that evidence of close relatives of the deceased cannot be discharged on the ground of their relationships with the deceased. Moreover, the duty caste upon the court to scrutinize their evidence with care and caution. It is also settled principle of law that there is common tendency of all outsiders not to get themselves involved in criminal case and it would be quite natural that no independent witness would come forward to assist the I.O. and prosecution, in case of murder. It is also settled principle of law that even with regard to the interested witnesses being close relatives, it is duty of the court to separate truth from the falsehood and the chaff from the grain and in view of c