K.M. Natarajan, J.

A-1 in S.C.No.57 of 1985 on the file of the I Additional Sessions Judge, Trichy has filed this appeal challenging his conviction under Sec.302, I.P.C. and the sentence of imprisonment for life and under Sec.326, I.P.C. and the sentence to undergo rigorous imprisonment for two years and under Sec.324, I.P.C. and the sentence to undergo rigorous imprisonment for one year and directing the sentences to run concurrently.

2. The appellant herein, hereinafter called A-1, was tried along with his father, A-2 for four charges, under, Sec.302, read with Sec.34, Sec.307 (two counts) and Sec.324, I.P.C. on the allegation that on 11.9.1984 at about 5.30 p.m. at Pambattipatti near Kalaththu Veedu belonging to the accused. A-1 stabbed the deceased Velankanni Arokiam with a knife indiscriminately while A-2 beat him with a wooden hammer over his head and face and during the course of the same transaction A-1 stabbed the witness Ronikkam, P.W.1, wife of the deceased, with a knife on her left side chest and right side back with intention to murder her, and also stabbed Arulayi, P.W.2, the mother of P.W.1 and mother-in-law of the deceased, with a knife on her right and left scapula with intention to cause her death and A-2 heat P.W.3, Sowriammal, with a wooden hammer and caused simple injury. To substantiate the above charges the prosecution examined P.Ws.1 to 15, field Exs.P-1 to P-18 and marked M.Os.1 to 6.

3. The case of the prosecution as revealed from the oral and documentary evidence, can be briefly stated as follows:

A-1 is the son of A-2 The deceased is the elder son of A-2. P.W.1 is his wife. P.W.2 is the mother of P.W.1 and mother-in-law of the deceased. P.W.3 is the daughter of the deceased as well as P.W.1 They were all residing at Pambattipatti. P.W.1 and the deceased were residing in one portion and A-1 and other members of the family in another portion while A-2is living in yet another portion in the same building. The family owns 5 acres of garden land and 5 1/2 acres of punja lands. The said properties were divided orally:and A-1 and the deceased were allotted 2 1/2 acres of garden land and 21/2 acres of punja lands each to their share. The deceased was permitted to cultivatethe excess half an acre of land. A-1 and the deceased were each giving two bags of paddy per annum. It was decided at the time of the oral partition that A-1 and the deceased each has to pay two bags of paddy per annum to their father viz., A-2. In respect of the debts borrowed by A-2 he requested A-1 and the deceased to discharge the same, but, the deceased was not agreeable. It is stated that A-2 arranged to sell the half an acre of land to P.W.7 Konakkal Pichai. On learning the same the deceased quarrelled with A-2 for about 10 to 20 days prior to the occurrence.

4. On 11.9.1984 at about 5.30 p.mt on the south east of Kalathumedu house at Pambattipatti the deceased first quarrelled with A-1 and A-2 in respect of selling of a land. At that time P.W.1 was inside the house at Kalathumedu. P.W.2, who came from her village to her daughters house, was also with P.W.1 at that time. P.W.4 along with her sister Vimala were playing under the tamarind tree near the house at Kalathumedu. At that time, on hearing the noise of quarrelling of the deceased with A-1 and A-2. P.Wsl and 2 rushed there. P.W.3 also came there. A-2 beat the deceased with a stick which he was having, on the head A-2 aimed another blow, which fell accidentally on P.W.3. In the meantime, A-1 picked up the Knife from his waist and stabbed the deceased on the left side of the chest, left side back, right side arm pit, left thigh, right arm and back of the right arm. On receipt of the same the deceased fell down.When P.Ws.1 and 2 tried to intervene and prevent A-1 from stabbing, A-1 stabbed P.W.1 on the left chest and also right side palm and also stabbed P.W.2 on the back thrice. The deceased succumbed to the injuries, fell down on receipt of injuries. P.W.4 and her sister on seeing the incident were weeping and they went to Anjakkaranpatti and informed P.Ws.5 and 6 and one Sundaram about the incident. Thereupon, P.W.5, who is the junior paternal uncle of P.W.1, came there and immediately came to the scene place along with P.W.6 and another and they took the injured P.W.1 to 3 in a taxi to the Government Hospital, Manapparai for treatment: P.W.10 Dr.Janakiraman, Assistant surgeon attached to the Government Hospital, Manapparai, examined P.W.2 at about 10 p.m. for certain injuries said to have been caused at 6 p.m. by a known person by stabbing with a knife and he found on her the following injuries:

(1) Incised injury over left scapula length 4 cm. x 1 cm, breadth depth - 2 cm. with fracture of scapula;

(2) 3 cm. x 1 cm. length breadth depth 2.5 to 3 cm. Incised injury just below injury No.1;

(3) 3 cm. x 1 cm. length and breadth incised injury over right supra scapular area, depth 1 cm. and more.

According to him, injury No.1 is grievous and injuries 2 and 3 are simple. The patient was referred to the Headquarters Hospital, Trichy. The x-ray of the chest was taken. It shows fracture of 5th and 6th ribs left. Pnemo thorax with collapse with sub-cutaneous impression. He was of the -further opinion that those injuries could have been caused due to stab with a knife at or about the time alleged. Ex.P-6 is the wound certificate issued by him. At about 10.15 p.m. on 11.9.1984 he examined P.W.1. for certain injuries caused at 6 p.m. on the same day by a known person due to stabbing with a knife and he found on her the following injuries:

(1) 2.5 cm. length x1/2 cm. breadth x depth not able to measure over deft side chest just below left clavicle. Incised injury.

(2) 1 cm. length x 1/2 cm. breadth x 1 cm. depth incised injury over left areola and nipple.

(3) 5.5 cm. length x 1.5 cm. breadth x 1 cm. depth incised injury over right lateral aspect of the lumbar region fracture limb vertebra.

According to P.W.10, those injuries are simple and they could have been caused due to stab with a weapon like knife at the time alleged. At about 10.30 p.m., on the same day he examined. P.W.3, who came of her own accord, for certain injuries said to have been caused at 6 p.m. due to beating with a stick and a stone, and found on her the following injuries:

(1) Lacerated 1 cm. length x 1/2 cm. breadth with ill-defined area of swelling over right lowerend of the fore-arm depth upto the bone. Fracture radius right

(2) 1 1/2 cm. diameter abrasion over centre of the head.

Ex.P-8 is the wound certificate issued by him. He was of the opinion that those injuries could have been caused by beating with a weapon like M.O.I, iron pipe and injury No.2 could have been caused due to beating with stone at the time alleged;

5. P.W.14, Ethiraj, the Sub Inspector of Police; attachedloVaiyampatti Police Station, on receipt of information through V.H.F. from the Government Hospital, Manapparai, at 10a.m. he went to the Government Hospital and recorded the statement Ex.P-1 from P.W.1 read over the same and obtained her thumb impression. Thereafter he returned to the Police Station, registered a case on the basis of Ex.P-1 in Cr.No. 157/84 under Secs.302, 324 and 323, I.P.C. prepared express F.I.R. Ex.P-16 and copies thereon and sent them to the Judicial Magistrate, Manapparai and to the higher officials.

6. P.W.15, Mariappan, Inspector of Police, Manapparai at about 12 mid-night got a copy of the F.I.R. and he reached the scene place at 0.30 hours where P.W.8 and another were present. He inspected the scene place and prepared the observation mahazar, Ex.P-2 in their presence. At 0.45 hours he seized the blood-stained earth M.O.2 and sample earth/M.O.3 under cover of a mahazar attested by the same witnesses. He also drew rough sketch Ex.P-13 between 1 and 4 p.m. held inquest over the dead body and during the inquest he examined P.W.4 and others and the statement given by P.W.1 was read over. Ex.P-18 is the inquest report. After completing the inquest he entrusted the dead body with P.W.12 constable along with the requisition Ex.P-9 to the Medical Officer to conduct the autopsy. Thereafter, he continued the investigation and examined P.Ws.5, 6 and 9 and others. He made arrangements to secure the accused. He came to the Government Hospital, Trichy at 9 a.m. on 12.9.1984, examined P.Ws.1 to3 and recorded their statements. P.W.10 Conducted autopsy over, the dead body of the deceased at about 10 a.m; in pursuance of the requisition Ex.P-15 and he found the following injuries:

External Injuries:

(1) Punctured eliptical injury over left slide chest 3 cm. below left clavicle and 4 cm. away front the mid line length 3.5 cm. depth 7 cm.

(2) Punctured eliptical injury over left supra clavicular area 3 cm. length depth 1 cm. ,

(3) Eliptical wound over right axilla 3 em. depth and 2 cm, length.

(4) Over ant. fold of the right axilla eliptical

injury 2 cm. length and 3 cm. depth.

(5) Lacerated injury over right parietal area of the scalp bone deep 5 cm. length x cm breadth.

(6) Over the right gr. trochanter eliptical injury 3 cm. length and 2.5 cm. depth. On dissection of injury No.1 direction of the injury passing downwards, medically and posteriorly injuring left upper Side antramedial aspect of the lung and also piercing root of the aorta, injury over the lung 2.5 cm. and aorta 1 cm. fracture of the 2nd rib at costo chondral junction with clean edges.

Fracture of 2nd rib left at costo chondral junction. Root of the aorta shows 1 cm tear.

P.W.10 was of the opinion that the deceased would appear to have died of shock and haemorrhage due to vitalorgarts like lungs and aorta about 12 to 20 hours prior to the post mortem examination. Ex.P-10 is the post mortem certificate issued by him. He was of the further opinion that cut injury could have been caused due to stab with a weapon like the knife. Injury No.5 could have been caused due to the weapon like M.O.1 iron rod, and injury No.1 and the corresponding-internal injury are necessarily fatal.

7. P.W.15 continued further investigation and he examined some of the witnesses at Anjakkaranpatti on 13.9.1984 and also P.W.7 at Pambattipatti village and recorded his statement. At about 5 p.m. he arrested A-2 at Seethakkadu forest land west of his house in the presence of witnesses and he voluntarily gave a confessional statement and it was reduced into writing, the admissible portion of which is marked at Ex.P-4. In pursuance of the same he took P.W.15 and party to a place 15 feet away from the place of arrest and from there he produced M.O.1 stick and it was seized under cover of a mahazar Ex.P-5 attested by witnesses. Thereafter he brought, A-2 to the police station since there were injuries on his person and he was sent to the Government Hospital for examination and treatment P.W.11 examined A-2on 13.9.1984 at about 7.45 p.m. for certain injuries said to have been caused on 11.9.1984 at 5.30 p.m. by known persons and he found on him the following injuries:

(1) A lacerated injury 2" x 1" x 1" over the front of the forehead.

(2) A lacerated injury 2 x 1" x 1/2" over the top of the scalp on the left side.

According to him, those injuries could have been caused by attack with M.O.1 iron rod at the time alleged, P.W.15 got information about the surrender of A-1 before the Chief Judicial Magistrate, Trichy on 17.9.84 He examined P.W.12 and recorded his statement. He gave a requisition, Ex.P-12 to the court on 12.8.1984 to send them for Chemical analysis. P.W.13 is the Head Clerk attached to the Judicial II Class Magistrates Court, Manapparai. It is his evidence that in pursuance of the requisition Ex.P-12, M.Os.2 and 4 to 6 were sent for Chemical analysis. Exs.P-14 and P-15 are the reports of the chemical analyst and serologist respectively. P.W.15 examined P.W.10, who conducted autopsy on 17.9.1984 and recorded his statement. He examined him again on 30.10.1984 and on the same day he examined P.W.11 doctor. Thereafter he got promotion and was transferred. His successor took up further investigation and filed a charge sheet against the accused on 15.12.1984 under Secs.307, 324 and 302, I.P.C.

8. When the accused was examined under Secs.313, Crl.P.C. with regard to the incriminating circumstances appearing against him in the prosecution evidence he totally denied the evidence of the prosecution as false. No witness was examined on his side.

9. The learned Trial Judge, after taking into consideration the oral and documentary evidence and the reasons assigned in his judgment, came to the conclusion that the prosecution has proved the charges 1 to 3 against this appellant beyond all reasonable doubt and convicted and sentenced him as stated supra while acquitting A-2 giving him the benefits of doubt. Hence, the convicted accused has preferred the appeal.

10. Learned counsel for the appellant, Mr.K.V. Sridharan took us through the recorded evidence and made his submissions. According to learned counsel, the Learned Trial Judge, having disbelieved the evidence of P.Ws.1 and 2 with regard to the attack on the accused ought to have disbelieved the remaining witness, P.W.4who is a child witness. According to him, the evidence of P.W.4 is a tutored one. The manner in which she narrated the occurrence shows that she is only a tutored witness. He would submit that it is the evidence of this witness, that she witnessed the occurrence near a tamarind tree and the said tamarind tree was not marked in the complaint or noted in the observation mahazar. The failure to mention the tamarind tree in the observation mahazar would affect the case of the prosecution particularly the evidence P.W.4. He would submit that P.W.4 did not explain the injuries on P.W.3 though she explained in court about the quarrel of A-2 with the deceased as well as the attack on the witnesses, who sustained injuries, but, she had spoken to only one injury and not two injuries sustained by P.W.2. In respect of the injury on A-2 also she only stated that A-2 was beaten but did not say that A-2 was beaten twice and as such the two injuries were not explained. According to him, P.W.4s own admission that, P.Ws.1 to 3 came at about 7.30 p.m. and in view of the said time 730 p.m. even though it was subsequently elicited that it was night at that time, no reliance could be placed on her evidence as she has suppressed the genesis of the occurrence. Learned counsel vehemently argued that though P.W.3 was treated as hostile, the various answers given by her clearly supports the case of the accused particularly the self-defence pleaded by them. Learned counsel says that the second part of the incident spoken to by P.Ws.1 and 2 is not acceptable and as such no conviction can be sustained with regard to the attack on P.Ws.1 and 2. Learned counsel also cited certain judgments with regard to the value of the evidence of the child witness and how far the child witness can be relied on for convicting the accused and also relied on certain case laws with regard to the value of the hostile evidence. He also cited certain case laws with regard to the effect of non-explanation of injuries. Lastly he would submit that on fact A-1 is entitled to the right of self-defence both in respect of the attack on the deceased as well as P.Ws., and in any event his conviction under Secs.302, I.P.C, is not sustainable, but, he will be liable to be convicted only under Secs.304, Part I or II I.P.C.

11. Learned Additional Public Prosecutor, countered the said argument and he would submit that the evidence of P.Ws. 1 and 3 in this case is natural, probable and trustworthy and nothing was elicited in cross-examination to discredit their testimony. He would submit that for arguments sake, if the evidence of P.Ws.1 and 2 is eschewed and the hostilewitness P.W.3 also isexcluded,yet,we have got the evidence of P.W.4, who had categorically stated in detail about the occurrence as well as the attack on the deceased and that of P.Ws. and she had spoken about the entire case and she is the competent witness since she was available at the centre and the teamed Judge, after satisfying that she was able to answer the questions and knows the difference between the truth and falsehood and she has studied 5th Standard, Further nothing was elicited in Cross-examination to reject her evidence and in support of his contention that the child witness can be relied on for convicting the accused. He relied on the decision of the Apex court in Baby Kandayanathil v. State of Kerala, 1993 Crl.L.J. 2605, He would submit that in this case P.W.4s evidence is corroborated by the evidence of P.W.3 with regard to the presence of the accused at the scene place as it is the evidence of P.Ws.1 to 3 that they were attacked by A-1 and specific charge has been framed against the accused for having attacked P.Ws.1 and 2 under Secs.326 and 324, I.P.C. and as such the evidence of P.W.4 is amply corroborated by the other witnesses in this case. He also vehemently argued that the occurrence took place in the house of the accused and the deceased and nobody else could have witnessed the occurrence and the inmates of the house alone could have witnessed and in the circumstances, only interested witnesses alone could have witnessed the occurrence and their presence is natural and probable and reliable in the absence of anything elicited and in cross-examination to discredit the testimony. Certainly their evidence deserved acceptance. As regards the absence of noting the tamarind tree in the plan, he would submit that in the evidence of P.W.1, who cate-gorically stated that the scene place is 50 to 60 feet away from the tamarind tree and that has not been challenged in any way and that has been elicited in cross-examination. The failure to mark the tamarind tree could not in any way affect the prosecution case in view of the evidence adduced in this case. He would submit that as regards the injuries on A-2 it has been clearly explained by the evidence of P.Ws.1 to 4. P.W.2 has spoken to the injuries on A-2. So also the other witnesses^ The medical evidence adduced in this case fully supported the case of the prosecution. Learned Additional Public Prosecutor relied on the decision of the Apex Court in Sampath v. State 1993 Crl.L.J. 2468 and submitted that failure to explain the trivial injury on the accused is of no consequence and the prosecution case cannot rejected on that score. Now, as regards the other contention raised with regard to the grievous nature of the injuries by the non-examinationof radiologist, he would submit that it is the evidence of P.W.10 that the fracture is visible for the naked eye and in the circumstances, the non-examination of the radiologist cannot in any way affect the case of the prosecution and as such the evidence of P.W.10 that the first injury on P.W.2 is a grievous one has to be accepted and no interference is called for. He would submit that the sketch and the observation mahazar were prepared only during night time and the failure to mention the place where the witnesses were playing is not an important factor which would not in any way affect the case of the prosecution. The sketch is prepared only with regard to the actual place where the deceased was attacked and M.Os.2 to 6 were recovered audit is a matter of evidence as to where the witness was standing and how she was able to witness. In any event, the failure to mention the tamarind tree would not loom large if once the evidence of the eye witness is accepted as trustworthy.

12. The point for consideration is, whether the prosecution has proved the guilt of the accused beyond all reasonable doubt and if so what is the nature of the offence committed by him.

13. With regard to the motive aspect is concerned, it is not in dispute that A-1 and the deceased are the sons of A-2 and that they partitioned their garden land of 5 acres and also punja land of 5 1/2 acres in which each of them got 2 1/2 acres of land. The said partition is an oral one. It is stated that each son has to give two bags of paddy only to the father, A-2. In respect of the excess land of half an acre the deceased was enjoying the same as he happened to be the eldest son. In respect of the debts payable by the father, after A-2 wanted his sons A-1 as well as the deceased to discharge the same, the deceased was not agreeable. A-2 in support of A-1 arranged to dispose of the said land to P.W.7. On coming to know of the same the deceased quarrelled with A-2. It is the evidence of P.W.7 that on account of the objection raised by the deceased the sale was stopped and subsequently after the occurrence he purchased the said land. Thus it is clear from the evidence of the witnesses i.e. P.Ws.1, 2 and 4 as well as P.W.3and that of P.Ws.7 that there was enmity between the accused and thedeceased in respect of the disposal of the half an acre of land. In fact, evert in cross-examination of P.W.1 it is elicited that a complaint was given to police by A-1 and in respect of the same, the police came in search of the deceased as well as his wife and P.W.1 was taken to the police station. It is also in evidence that the quarrel and the fight were going on for about 10 to 12 days prior to the oceurrence and they were not in talking terms. On the day of occurrence also when the deceased was questioning A-1 and A-2 in respect of the sale of the land this incident took place. Thus, the prosecution has established by acceptable evidence the motive for the crime in question.

14. Now, as regards the actual occurrence is concerned, we have got the evidence of P.Ws.1 to 3 and among them P.W.3 was treated as hostile. It is the evidence of P.W.1, who is the wife of the deceased that at about 5.30 p.m. on the date of occurrence evening i.e. On Tuesday, when she was in the house on the south-east of her house the accused and her husband were having wordy quarrel in the land near her house. On hearing the noise she along with her mother and sister-in-law, P.W.3 went there. When they went there A-2 beat her husband with a stick and her children including P.W.4 who were playing near the: tamarind tree. The blow which was dealt by A-2 with stick fell on the head of her husband. A-1 picked up the knife from his waist and stabbed her husband on the left side chest, left side back and also left thigh, again on the right flank on the right arm;back side. When she and P.Ws.2 and 3 separated A-1 stabbed her on the left chest and also on the back of the right arm. A-1 also stabbed her mother or the back thrice. The blow which was aimed by A-2 fell accidentally on P.W.3 and it is only they were taken to the hospital. She has given a complaint Ex.P-1 at the police station at about 10.30 p.m. P.W.2 corroborated the evidence of her daughter and it is her evidence that she came to her daughters house on the previous day i.e. on Monday and she was about to leave for her village in the evening. Since her daughter wanted her to stay she stayed there. She also corroborated the evidence of P.W.2 with regard to the attack on the deceased as well as P.Ws.1 to 3. P.W.3, as already stated, was treated as hostile. She is the daughter of A-2 and the sister of A-1. P.W.4 is the child witness. She was aged about 9 years and she was studying 5th Standard when she was examined and at the time of occurrence she was studying 4th Standard. The learned trialJudge put a number of questions and was satisfied that she was competent to depose from the various answers given by the witness: It is the evidence of P.W.4 that on the day of occur rence she along with her sister, Vimala were playing near the tamarind tree. At that time A-1 and A-2and their father railed the deceased for fight. A-2 brought a stick and beat her father. The deceased snatched the stick and beat A-2. A-1 picked up the knife from his waist and stabbed her father 4 or 5 times. A-2 aimed a blow with a stick which accidentally fell on P.W.3. P.W.1., her mother, P.W.2, grand-mother and P.W.3 separated them; According to her, her mother P.W.1. sustained injuries on the left side and on the back due to stab by a knife by A-1. Tier grand-mother sustained three injuries on the back, her father died at the spot. She and her sister were weeping and went to their grand-father P.W.5 and informed the incident. Thereupon they came and took them to the hospital. Nothing tangible was elicited in cross examination to discredit their testimony. Learned counsel vehemently argued that the place where they were playing is near a tamarind tree and it was adjoining their kalathumedu house and it was about 100 yards from the place where their father, grand-father and the junior paternal uncle were quarrelling. In her cross-examination it was elicited that she and her sister raised a hue and cry and on hearing the noise P.Ws.1 to 3 came there and at that time her father was lying after being stabbed. Then a question was put as to whether it was 7 p.m. she would state that it was only 5.30 p.m. From the answer elicited in cross-examination it was argued that P.Ws.1 to 3 could not have witnessed the occurrence and P.W.4 alone could have witnessed the occurrence. It is to be noted, the house of P.W.1 and that of the deceased is not far off and it is very near to the scene place and P.Ws.1 to 3 only came from their houses on hearing the noise of quarrelling and there was absolutely no difficulty for them to witness the occurrence while they were coming also. Further they are the injured witnesses and they were injured at the hands of the accused. As such their presence at the scene place cannot be disputed. As rightly pointed out by a learned Additional Public Prosecutor, even if we eschew the evidence of P.Ws.1 to 3 with regard to the attack on the deceased byA-1, yet, we have got the evidence of P.W.4 and her evidence is cogent, convincing and trustworthy and on the mere fact that she is a child witness her evidence cannot be rejected on that score and even otherwise it is found acceptable and reliable. In this connection he drew the attention of the court to the decision of the Apex Court in Baby Kandayanathil v. State of Kerala, 1993 Crl.L.J. 2605, wherein it is held as follows:

"The Learned Trial Judge has put preliminary questions to each of the witnesses and satisfying that they were answering questions intelligently without any fear whatsoever proceeded to record the evidence. In the chief examination, each of the witnesses has given all the details of the occurrence. There has been a searching Cross-examination and the witnesses withstood the same. We have also gone through the evidence and we do not see any reason to doubt their evidence. They are the most natural witness who had been present in the house at the night time. Both the courts have accepted their evidence and we see no ground to interfere. There are no merits in this appeal and the same is dismissed. The appellant who is on bail shall surrender and serve out the sentence and the bail bond stands cancelled."

The said ratio fully supports the contention of the learned Additional Public Prosecutor. The decision relied on by learned counsel for the appellant is State of Bihar v. Kapil Singh, 1969 M.L.J. (Crl.) 137 where it is held as follows:

"While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness, that under influence, she might have been coached to give out a version by person who may have influence On her. In this case, there are a number of circumstances which indicate that it will not be quite safe to rely on her evidence. She stated that she was lying on a cot close to the cot on which heir aunt was sleeping. She actually saw her aunt being killed and, according to her, there was a threat to her life also when one of the appellants said that she also would be killed, though "she was saved when another asked that she should be spared because" she was a child. It does not seem to be very likely that a child in such circumstances could have continued to pretend that she was asleep. At no stage has any suggestion been put forward by the prosecution that the thieves themselves had put her in fear of life by threatening to kill her if she disclosed their names. She could not, therefore, be under any fear at the time when she met B, the Chaukidar and others and there was no explanation at all why their names were not ascertained from her or voluntarily disclosed by her at that stage. The subsequent story put forward by the prosecution is highly suspicious and, in fact, indicate that, in this case, the investigation by the police has not been honest. It is difficult to understand under what law the police was authorised to keep this girl confined in the police station for several days. The very fact that she was questioned at the odd hour of mid-night makes it obvious that compulsion was being used on her to state the names of these persons. M, whose statement implicating these three persons was obtained in these circumstances cannot, therefore be held to be a reliable witness, particularly in view of the circumstances that she did not disclose their names even at the earlier stage-when she had not been put in fear of her life by her mother. Apart from these circumstances, which throw considerable doubt On the evidence of M, even the corroborative evidence sought to be adduced by the prosecution appears to be of a very doubtful character.

The other decision relied on by him is R.Kulandaivelu v. State, 1993 Crl.L.J. 2574, where it is held thus:

On a careful reading of the evidence of this witness, we have no hesitation in holding that it is highly improbable for this witness to have witnessed the incident and her evidence is not natural and probable. Admittedly she is related to the deceased as his grand-daughter and she is also a child witness. Hence no reliance could be placed on her testimony.

The above decisions relied on by learned counsel for the appellant are not at all helpful to the case of the appellant herein as they were rendered on the facts and circumstances of that particular case and they are not applicable to the facts of this case. In the instant case, after going through the evidence of P.W.4 we find that she is an intelligent and that she was able to give intelligent answers and nothing was elicited in cross-examination to discredit her testimony. The only infirmity which was pointed out by learned counsel for the appellant was that she had deposed that she witnessed from near the tamarind tree and the tamarind tree has not been mentioned in the rough sketch and the failure to note the tamarind tree would affect her evidence. We do not find any merit in the said contention. As rightly pointed out by the learned Additional Public Prosecutor, P.Ws.1 and 2 categorically stated that the tamarind tree is At a distance of 50 to 60 feet from the scene place and the mere fact that the place where the witnesses was at the time of occurrence was not found in the rough sketch cannot be a ground to reject the evidence as it is not a place where any part of the occurrence took place which has been omitted to be mentioned. If any evidence is available with regard to the location of the tree/that is sufficient. In the instant case we have got the evidence as to where the tamarind tree is located and further the presence of P.W.4 cannot be disputed as she is the only daughter of the deceased and her presence is probable and natural and deserved all acceptance at the hands of the court as learned counsel only points out that she was able to give answers with regard to the attack on the deceased and the details of occurrence. The mere fact that she was able to give details of occurrence without any difficulty, it cannot be said that she is a tutored witness. Hence we do not find any merit in the contention of the learned counsel for the appellant. Her evidence is amply corroborated by the injured witnesses, P.Ws.1 and 2, who had categorically stated about! the presence of this appellant and who was armed with a knife and who attacked them also when they intervened and caused simple as well as grievous injuries and their evidence is amply corroborated by the earlier report Ex.P.1 given by P.W.1 arid also the medical testimony adduced through P.W.10, who had seen ail the injured P.Ws.1 to 3 from 10 O clock and who had also conducted the post mortem examination and issued wound certificates Exs.P-6 to P-8 and the post mortem certificate Ex.P-10 and who had opined that the injuries on these witnesses and the deceased could have been caused due to the stab by a weapon like a knife at the time alleged and that evidence of P.W.10 has not been challenged.

15. Now, as regards the injuries on A-2 it has been brought to our notice that P.W.1 also would state that when A-2 beat the deceased, the deceased snatched the stick and beat A-2. P.W.2 also stated that A-2 already sustained injury and that was due to beating by her husband, the deceased with a stick. This has been corroborated by the evidence of P.W.4 also. Learned counsel says that this witness has stated that the deceased beat A-2 with a stick and has not stated that the deceased beat A-2 twice, but, A-2 was having two injuries. As such the injuries have not been explained. We do not find any force in the said contention. On the mere fact that it has not been specifically stated as to how many times A-2 was beaten by the deceased, it cannot be said that the injuries had not been explained. Even otherwise our attention was drawn to the decision of the Apex Court in Sam-path v. State, 1993 Crl.L.J. 2468, wherein this court, after taking into consideration the earlier decisions has held:

Further, evidence of eye witnesses is cogent, convincing and trust- worthy. Failure to explain the trivial injuries found on the accused by prosecution is of no consequence and on that ground entire prosecution cannot be discarded.

The decision relied on by learned counsel in Buta Singh v. State of Punjab, 1991 S.C.C. (Crl.) 494, is not at all helpful to the case of the appellant as it was rendered on the facts of that case and it is not applicable to the facts of this case.

16. Now, as regards the medical testimony is concerned, we have elaborately set out while narrating the case of the prosecution. In respect of the injury on P.W.2 it is noted in Ex.P-6 wound certifi-cate. The opinion of the doctor is that it is grievous. There was fracture of 5th and 6th left ribs. It is the evidence of the doctor that he has described that injury as a fracture since it is visible even for naked eye and as such, failure to examine the radiologist, who has taken the x-ray and who has also opined that the said injury was grievous in nature as per the report of the radiologist and the x-ray. Learned counsel vehemently argued that since the radiologist has not been examined it cannot be said that the injury is grievous, in view of the fact that the fracture was visible and it does not require any x-ray and that has not been challenged in the cross-examination. The non-examination of the radiologist would not in any way affect the opinion given by P.W.10 with regard to the nature of injury No.1. Hence we do not find any merit in the said contention. As we have already discussed, that with regard to the deceased the doctor has noticed as many as six injuries and he was of the opinion that the deceased would have died as a result of the shock and haemorrhage due to the vital organ i.e. left lung and aorta about 12 to 20 hours prior to the post mortem examination and further injury No.5 could have been caused with a knife and external injury No.1 corresponding with the internal injury is necessarily fatal. This medical evidence has amply corroborated the ocular testimony. Thus, the prosecution has established the guilt of the appellant beyond all reasonable doubt with regard to the charges framed against him.

17. Now, learned counsel for the appellant contended that the accused is entitled to the plea of self-defence. According to him, P.W.3, the hostile witness, who is the daughter of A-2 and sister of A-1, had stated that when she went on hearing the noise the deceased beat her father with a stick and when she questioned the deceased she was beaten on the head and she fell down and she did not and could not know as to what has happened then. Her evidence has been confronted with reference to her earlier statement and she was treated as hostile. In the earlier statement she has fully supported the case of the prosecution and has given a statement to the effect that when she went there it was A-2 who beat the deceased with a stick and the deceased snatched that and beat hint At that time A-1 picked up a knife and stabbed the deceased and when she and P.Ws.1 and 2 interfered, they werestabbed by A-1 and the blow aimed by A-2 fell on her. Hence there is absolutely nothing to infer from the evidence that the deceased was an aggressor and that the accused acted in self-defence. It has been suggested that in order to save her father and the brother she is deposing falsely. Learned counsel for the appellant relied on the decision in Khujji v. State of M.P.. (1991)S.C.C. (Crl.) 916 and submitted that merely because a witness declared hostile, his entire evidence cannot be treated as effected from the record and his testimony, to the extent found reliable can be acted upon. On going through the said decision we find that it was held in that case that the presence of eye witnesses is in the company of the deceased at the place of occurrence could not be doubted. One of the witnesses was injured in the incident. Immediately after the incident within less than an hour, before there was any extraneous intervention he went to the police station, narrated the incident and lodged the F.I.R. Since the F.I.R. was a detailed document it is not possible to believe that the investigating officer imagined these details and prepared the document It is held in the above decision at page 917 asunder:

The detailed narration about the incident in the F.I.R. goes to show that the subsequent attempt of the witness to disown the document while admitting his signature thereon, is a shift. The only area where the witnesses had not supported the prosecution and resiled from their earlier statements is regarding the identity of the assailants. The evidence of the eye witnesses was challenged by the prosecution in cross-examination because they refused to name the accused as the assailants of the deceased. The trial court made no effect to scrutinise the evidence of these two witnesses even in regard to the factum of the incident.

The above decision is not helpful to the case of the appellant as in the facts and circumstances of that case, it was held that the evidence which was sellable can be the basis for the conviction and cannot be effaced altogether. But, it is nowhere stated that as a witness who was treated as hostile and has come forward with a different version, his version has to be accepted contrary to the one which he has already given in his earlier statement. Hence the said decision is not helpful and we are of the view that the evidence of P.W.3 cannot be relied on in support of the contention of learned counsel for the appellant to any extent as she has not even stated that the accused in self-defence attacked the deceased.

18. On a careful consideration of the entire evidence we find that it was only the accused, who were armed with weapons and there is absolutely nothing to show that the deceased was armed with weapons. The deceased only was questioning the accused with regard to the arrangement for the sale of the land in which he has got a share and on account of the same he was quarrelling and the said quarrel, according to the prosecution, has been going on for the last 10 or 12 days prior to the occurrence. It was only during that quarrel A-1 and A-2 joined and they were armed with weapons and they attacked the deceased and caused the fatal injuries and the witnesses also interfered. la the circumstances, we do not find any justification in the contention of the learned counsel for the appellant and that the accused acted in a right of self-defence and the offence committed would be only under Sec.304, Parts I and II, I.P.C On the other hand, we are of the view that the offence committed by him as well as the deceased would squarely come under Sec.302, I.P.C. As regards the offence committed to P.Ws.1 and 2, his conviction under Secs.324 and 326, I.P.C. is also supported by acceptable evidence and we do not find any infirmity or any interference is called for.

19. Thus, on a careful consideration of the case of the prosecution, we are of the view that the learned trial judge is perfectly justified in convicting the appellant and his conviction and sentence awarded are sustainable and no interference is called for.

20. In the result, the conviction and the sentence awarded to the appellant are confirmed and the appeal is dismissed. The bail bond shall stand cancelled. The appellant is directed to surrender forthwith.