The testimony of relatives as witnesses requires careful scrutiny but can support conviction when credible, establishing culpable homicide in absence of intent to kill.

1This appeal is directed against the judgment of conviction and order of sentence dated 31-1-2002 passed by the 1st Additional Sessions Judge, Ambikapur in S. T. No. 319/2000 whereby learned Additional Sessions Judge after holding the accused / appellants guilty for commission of offence under S. 302 read with S.34 of the I. P. C., for committing the murder of Kan Rai, sentenced each of the accused to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo R. I. for 6 months.

2. The case of the prosecution, in brief, is that on 24-8-2000 at about 2.30 p.m. Nirmal Kumar was at his residence, at that time, Kenda Kumhar came to his house and informed him that Kan Rai is being beaten, therefore, he along with Kenda Kumhar went to Sita Jhorikha Khar agricultural field, he saw from 100 meter and shouted towards the accused persons as to why they are beating Kan Rai, at that time accused Jhakadi was holding lathi in his hand. He stopped attacking Kan Rai. Accused Gyan Singh was attacking with spade. After seeing them when they rushed towards them, accused Gyan Singh and Jhakadi ran away. The matter was reported by Nirmal Kumar under Ex. P/1 in the Police Station Lakhanpur. Station House Officer, Police Station registered the crime under S.302 read with S.34 of the I. P. C. Merg intimation Ex. P/2 was given by Nirmal Kumar. The investigating officer left for scene of occurrence and prepared inquest Ex. P/4 on the body of deceased Kan Rai. Halka Patwari prepared the site plan Ex. P/5. The investigating officer seized plain soil and blood stained soil from the place of occurrence under Ex. P/6. Slippers of Kan Rai were seized under Ex. P./7. One bamboo stick was seized from the place of occurrence. While in the police custody, accused Gyan Singh gave memorandum Ex. P/8, in pursuance of that, spade was seized at his instance under Ex. P/9. While in the police custody, accused Jhakadi gave memorandum Ex. P/10, in pursuance of that, at his instance lathi was seized under Ex. P/11. Broken pieces of lathi were seized under Ex. P/12. The body of the deceased was sent for post mortem examination under Ex. P/23-A to the Primary Health Centre, Lakhanpur where Dr. Vedram Singh (PW 10) conducted post mortem and prepared post mortem report Ex. P/23. He opined that cause of death was excessive haemorrhage due to rupture of lung.

3. After completion of the investigation, charge sheet was filed against the accused persons in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Sessions Judge Ambikapur from where learned 1st Additional Sessions Judge received the case on transfer.

4. The prosecution in order to establish the charge against the accused persons examined 13 witnesses. Statements of the accused persons were recorded under S.313, Cr. P. C. in which they denied material appearing against them in the prosecution evidence, stated that they are innocent and have been falsely implicated in the crime. However, they examined DW 1 Bachan Ram in their defence.

5. Learned 1st Additional Sessions Judge after hearing learned counsel for the respective parties convicted and sentenced the accused persons as aforesaid.

6. We have heard Shri J. S. Baraik, counsel for the appellants and Shri D. K. Gwalre, Additional Public Prosecutor for the State / respondent.

7. Learned counsel for the accused / appellants has not disputed homicidal death of the deceased. Moreover, PW 3, wife of the deceased namely, Sukwaro Bai has stated that on the fateful day she saw that accused / appellants namely, Gyan Singh and Jhakadi were attacking her husband in the agricultural field. Jhakadi was attacking with lathi whereas, Gyan Singh was attacking with spade, as a result of which her husband sustained injuries on various parts of the body. Blood started oozing out of the ear and head. The above ocular evidence is corroborated by the medical evidence of PW 10 Dr. Vedram Singh who has stated