JUDGMENT
P.G. Agarwal, J.
1. This appeal is directed against the judgment and order dated 20.1.95 passed by the learned Sessions Judge; Sbnitpur, Tezpur in Sessions Case No. 73(S)/92 whereby the accused appellants were convicted and sentenced.
2. The three appellants before us were tried by the Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 73(S)/92 and on conclusion of trial they were convicted under Section 304(11) IPC and sentenced to imprisonment for three years and to pay a fine of Rs. 1000 each in default further imprisonment for six months each.
3. The prosecution allegation in brief is that on the date of occurrence, i.e., 16.5,91 the three accused appellants forcibly dragged Smti. Kripia Champia the deceased while she was at the tube well and assaulted her. She was brought to the house of the accused persons where she was assaulted and kept confined for the night and on the next day morning she was brought to the garden hospital where she was declared dead by the medical officer.
4. PW 5 is Dr. Susil Kumar Saikia who held the autopsy over the dead body and found the following injuries on the person of the deceased:
“One lacerated wound present at left angle of mouth.’It cut both upper and lower lips about 1″ x 1 1/2” x muscle deep.
One contusion with bruise and swelling over right chest. Maxillary bone about 3″ x 1/2 in size.
Multiple bruise over back of variable sizes and shapes.
On Cranium and Spinal Cord – scalp congested and swollen. Skull – Right maxillary bone fractured obliquely about 1 1/2″
5. In the opinion of the doctor the injury was ante mortem in nature and the deceased died as a result of shock resulting from the injuries sustained. The medical evidence as regards the injuries and the cause of death has not been challenged. The entire prosecution case rests on the testimony of the informant Abiram Champia, the son of the deceased and two other eyewitnesses namely Chandra Karkaria PW 3 and Smti. Bhanu Karkaria PW 4. Abiram Champia, the ill-fated son of the deceased has deposed that on the evening while his mother was at the tube well the accused Birpatra and Jaleswari assaulted her and forcibly took her to their house. The other accused Dhiren also joined them. All the three accused persons assaulted the deceased on the plea that she is a witch and she has harmed the accused Dhiren. The deceased was kept confined in the house at night and on the next day she was brought to the garden hospital by the accused persons where she was declared dead. On information of the medical officer the garden manager reported the matter to the police whereupon the police swung into action and sent the dead body for post mortem examination.
6. The trial Court has relied on the testimony of the above three eyewitnesses. PW 1 is the garden manager and he has deposed that he was informed by the garden doctor about bringing the deceased, Kripia Champia in the hospital where after examination, the doctor declared her to be dead. PW 1 further stated that he was informed by the garden labourers that the deceased was assaulted by the appellant Birpatra and others and accordingly PW 1 informed the police. The evidence of Abiram Champia PW 2 has been well supported by two other independent witnesses namely Chandra Karkaria PW 3 and Smti. Bhanu Karkaria PW 4. They are the neighbours of the deceased and they have seen the accused persons forcibly taking away the deceased and assaulting her with hands, bamboo lathis etc. PW 3 even tried to intervene and asked the accused persons to release the lady but his request was turned down. The evidence of the three eyewitnesses was challenged by the defendant on the ground that they are interested witnesses. There is no dispute that PW 3 and PW 4 are near relations of PW 2 but that in itself is not sufficient to throw out their testimony over board.
7. In the case of the State of U.P. v. Saman Das, AIR 1972 SC 67 the hon’ble Apex Court observed:
“Relationship of the prosecution witness to the deceased, itself is not sufficient for disbelieving his testimony unless the motive is alleged and proved against them to spare the real assailant – it is well known that the close relative of a murdered person are most reluctant to spare the real assailant and falsely involve another person in place of the assailants and when there is no cogent evidence on the record to show that any of the witnesses had any animus against the accused.”
8. In a recent case, State of Uttar Pradesh v. Binode Kumar 1992 Crl. LJ 1115, the hon’ble Supreme Court reiterated its earlier observation in the following words:
“Mere interestedness by itself is not a valid ground for discarding or rejecting the sworn testimony and nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction. What all that is necessary is that the evidence of interested or related witnesses should be subjected to a very careful scrutiny with extreme care and caution and if on such scrutiny the testimony is found to be intrinsically reliable then that evidence may be relied upon in the circumstances of the particular case to base a conviction thereon.”
9. We have perused the testimony of PW 3 and PW 4 and find that the defence has failed to bring anything on record to show that these two witnesses are deposing falsely. The defence has also raised the plea of delay in lodging the FIR before the trial court and the matter was considered in detail. The first information was given by the manager regarding the death of the deceased Kripia Champia. In the above information it was not mentioned that this is a case of culpable homicide. The only information was given that a garden worker was brought to the hospital in dead condition. The police thereafter registered a U.D. case and started investigation. The son of the deceased PW 2 thereafter lodged the FIR alleging commission of murder by the accused persons and police thereafter registered a case under Section 302 IPC. The delay has been explained and the same was accepted by the trial court. It is stated that once the information was given by the garden manager and police was investigating the matter PW 2 did not file the FIR in the believe that the information given by the manager will be enough. Subsequently on being informed, he lodged the FIR. In this case, in view of the direct testimony of the eyewitnesses the above delay is not at all fatal and this is not a case of alleged concoction or fabrication.
10. It is submitted by the learned counsel for the appellants that there were other labourers residing near the house of the accused appellant a and none of these independent witnesses have been examined by the prosecution.
11. There is no requirement of law that the prosecution is required to examine each and every person residing in the locality. Three eyewitnesses were examined by the prosecution and if the defence was of the view that the other neighbours will be supporting them nothing prevented them from examining these persons in support of their case.
12. The incident took place on the evening of 16,5.91 and the deceased was brought to the hospital at 8.25 A.M. of 17.5.91 and the doctor found signs of external injuries on the face and medulla region and the case history given by the garden doctor P K Bhattacharyya is that the doctor declared the patient dead at 8.45 AM. We thus find that the medical evidence on the record fully supports the oral testimony of the eyewitnesses and the trial court rightly relied on the oral testimony. The conviction of the accused appellants needs no interference and so far the sentence is concerned, the appellants have been treated very leniently.
13. In the result this appeal stands dismissed.
14. The accused appellants are directed to surrender forthwith before the Chief Judicial Magistrate, Sonitpur, Ifezpur to serve out the sentence. The Chief Judicial Magistrate shall procure the attendance of the accused persons and remand them to jail custody to serve out the sentence.
15. Send down the records.