Eyewitness testimony cannot be dismissed solely based on familial relationships if credible; causation of death must be directly linked to injury inflicted.

1. Accused / appellant preferred the captioned criminal appeal against his conviction recorded by learned Additional Sessions Judge (FTC), Rajnandgaon on 5.4.2010 under S.302 of the Indian Penal Code (for short ' the IPC - ) for which he is sentenced to life imprisonment.

2. Facts giving rise to this appeal are that on 20.8.2009 complainant Gautam Bai (PW - 2) while returning from the grocery shop was hurling abuses at her daughter Saresh. Renuka and Poonam, daughter of appellant, who were coming from opposite direction, though that Gautam Bai was abusing them and accordingly they went to their house and informed the accused / appellant of the incident on which he came on the spot with club and assaulted on the left side of the stomach of deceased as a result of which he died. FIR (Ex.P - 21) was lodged by Gautam Bai (PW - 1) on 21.8.2009 against accused / appellant under S.302 of IPC. Inquest on the body of deceased was prepared on 21.8.2009 vide Ex.P - 6. Body was sent for post - mortem examination which was conducted by Dr. (Smt.) Seema Thakur (PW - 9) vide Ex.P - 10A and she noticed only one contusion on the upper side of left abdomen of 4'''' x 2'''' x 1'''' in size. The cause of death assigned by the autopsy surgeon was excessive bleeding from injury to vital organ and the death was homicidal in nature. Memorandum of the accused / appellant was recorded vide Ex.P - 8 which led to the recovery of weapon of offence i.e. club, vide seizure memo of Ex.P - 9. Statements of witnesses were recorded in the course of investigation.

3. On completion of investigation, charge sheet against the accused / appellant was filed under S.302 of IPC and accordingly the charge was framed against him by the trial Court. The prosecution in order to bring home the charge levelled against the accused / appellant examined 10 witnesses in all. Statement of accused was recorded under S.313 of Cr.P.C. in which he abjured his guilt and pleaded innocence and false implication.

4. After hearing counsel for the parties, the trial Court by the impugned judgment convicted and sentenced the accused / appellant in the manner as described above.

5. We have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

6. Mr. Verma, learned counsel appearing on behalf of appellant submits that Gautam Bai (PW - 1) & Sakharam (PW - 3) are related witnesses and therefore they are not reliable. He further submits that the autopsy surgeon (PW - 9), in her cross - examination, has admitted that injury noticed on the left side of abdomen of deceased was not sufficient to cause his death and that the deceased died due to rupture of liver but it was not the result of injury inflicted on him. In other words, he submits that the liver is located in the right upper quadrant of the abdominal cavity, beneath the diaphragm and overlies the gallbladder and no injury has been noticed on this part of the body of deceased and therefore it is clear that the death of the deceased had not resulted directly from the injury sustained by him and as such the appellant cannot be held responsible for the death of deceased. Therefore, if the entire prosecution case is taken as it is, the appellant could be convicted under S.323, IPC and not under S.302 of IPC as has been done by the trial Court.

7. On the other hand, counsel for the respondent - State supports the impugned judgment and submits that conviction of the appellant is strictly in accordance with law and there is no illegality or infirmity in the same. He submits that there is no reason to reject statements of Gautam Bai (PW - 1) & Sakharam (PW - 3), who are reliable and worthy of