Arijit Pasayat, C.J.

1. Rajan and Nagappan, hereinafter referred to as accused by name, have questioned legality of judgment of conviction and sentence passed by learned II Additional Sessions Judge, Thiruvananthapuram. Accused Rajan was convicted and sentenced to undergo imprisonment for life for offence punishable under Section 302 of Indian Penal Code, 1860 (in short I.P.C.); rigorous imprisonment for five years in respect of offence under Section 449 I.P.C. and to pay a fine of Rs. 5,000 and in default to undergo simple imprisonment for one year. He has also been sentenced to undergo rigorous imprisonment for three years under Section 324 I.P.C. Accused Nagappan has been sentenced to undergo rigorous imprisonment for one year, two years and one year respectively in respect of offences punishable under Sections 323, 324 and 451 I.P.C. Sentences were directed to run concurrently.

2. Prosecution case, as unfolded during trial, is as follows: Lalitha (P.W. 1) was residing at Kuttaravila Kunnil Puthen Veedu, Kesavadev Road, Mudavanmugal Ward, Thirumala Village along with her husband, Thankappan. They had three children-Latha (hereinafter referred to as deceased), Usha (P.W. 2) and Suma. Chellamma (P.W. 12) is the wife of Thankappans younger brother, late Maniyan. Accused are brothers, who are children of Thankappans elder brother, namely, Kuttan. P.W. 12 and her children were residing in a building situated adjacent to the house of Lalitha. Accused claimed some personal rights over the said building in which P.W. 12 was residing and wanted to evict her and her children. This demand led to frequent quarrels when accused came to the house of P.W. 12. Thankappan used to render help to P.W. 12. Perplexed by action of accused, P.W. 12 lodged a complaint before police and accused were taken into custody on 16th September 1993. On 17th September 1993, accused threatened Thankappan of bodily harm. P.W. 1 lodged a complaint before police on 24th September 1993 about the said threat by accused. Police came in search of them. On 26th September 1993, accused Rajan came with a handle of spade and accused Nagappan with a stick, trespassed into verandah of P.W. 1s house. Rajan asked P.W. 1 as to whether she will file a further complaint before police and tried to hit her on the head which was warded off. He again inflicted Anr. blow which hit her left side and she sustained an injury. Hearing her cry, deceased came to verandah and tried to obstruct the accused from further assault. Accused Rajan inflicted a blow on her head, thereby causing fracture of the skull and contusion on the head. She fell down. Accused Nagappan stamped on various parts of her body. P.W. 1 and deceased were taken to General Hospital from where they were referred to Medical College Hospital. Deceased succumbed to the injuries on 28th September 1993 around 12-45 p. m. Information was lodged with police and investigation was undertaken. Accused persons were committed for alleged commission of offences punishable under Sections 449, 307 and 302 I.P.C. read with Section 34 I.P.C. Accused persons pleaded innocence.

3. During trial, 14 witnesses were examind to further prosecution version. Placing reliance on the evidence of P.Ws. 1, 2 and 3, learned trial Judge held accused persons guilty, convicted and sentenced them as aforesaid.

4. In support of appeal, Mr. B. Krishna Mani, submitted that learned trial Judge should not have placed reliance on the evidence of P.Ws. 1, 2 and 3, after having doubted version of P.W. 12 on the ground of unreliability. Additionally, P.Ws. 1 and 2 are related to deceased and P.W. 3 is only a chance witness. Their evidence has not been analysed and scrutinised in a proper manner. Alternatively, it is submitted that there was no intention to kill anybody. Even if prosecution case is accepted, it was P.W. 1 who was supposed to be the target of assault. Nature of injuries alleged inflicted on her does not show existence of an intention to do away with her life. There is no reason as to why any intention to cause death of deceased would exist. That being position, application of Section 302 I.P.C. so far as deceased is concerned is clear ruled out. In any event, according to learned Counsel, at the most, an offence under Section 326 I.P.C. can be said to have been committed on accepting prosecution version in its entirety. Mr. K. Gopalakrishna Kurup, learned State Public Prosecutor, however, supported the judgment, conviction and sentence imposed on accused persons.

5. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

6. In Dilip Singh v. State of Punjab : A.I.R. 1953 S.C. 364, it has been laid down as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not in sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

7. This decision has since been followed in Guli Chand and Ors. v. State of Rajasthan : A.I.R. 1974 S.C. 276 in which Vadivelu Thevar v. The State of Madras : A.I.R. 1957 S.C. 614 was also relied upon.

8. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by apex Court as early as in Dilip Singhs case : A.I.R. 1953 S.C. 364 (supra) in which apex Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., the apex Court observed:

We are unable to agree with learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which Anr. Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan (A.I.R. 1950 S.C. 54). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate, in the arguments of Counsel.

In this case, apex Court further observed as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal causes for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

9. Again, in Masalti v. State of U.P. : A.I.R. 1965 S.C. 202 apex Court observed:

Again it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses....The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.

10. To the same effect is the decision of apex Court in State of Punjab v. Jagir Singh A.I.R. 1973 S.C. 1407.

11. In the case at hand, evidence of P.Ws. 1 and 2 has been analysed at length and found to be credible and cogent. Therefore, learned trial Judge was justified in placing reliance on their evidence. There is no dispute that a person lost his life. That being so, normal human behaviour would be to expose the real culprits and not to shield them. A relative, instead of being a partisan witness, is normally supposed to be impartial and bring real culprits to face trial and not to let loose them to rope in innocent persons.

12. It is to be noted that P.W. 3 is an independent witness. There was not even a suggestion to the witness that she had any animosity towards accused. In a murder trial by describing independent witness as chance witness it cannot be implied thereby that his or her evidence is suspicious and his or her presence at the scene is doubtful murders are not committed with previous notice to witnesses soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses. The expression chance witness is borrowed from countries where every mans home is considered his castle and every one must have an explanation for his presence elsewhere or in Anr. mans castle. It is quite unsuitable an expression in a country where people are less formal and more casual.

13. The further question is whether the case is covered under Section 302 I.P.C. Clause thirdly of Section 300 views the matter from a general standpoint. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary way of nature and when this exists and death ensues and causing of such injury is intended, the offence is murder. The clause has two parts. The first part is a subjective one which interdicted that injury must be an intentional one and not accidental one and the second part is objective one in the sense that looking at injury intended to be caused, Court must be satisfied that it was sufficient in the ordinary course of nature to cause death. These two parts are disjunctive and separate. Sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of clause, irrespective of an intention to cause death. Analysing the clause, apex Court in Virsa Singh v. State of Punjab A.I.R. 1952 S.C. 465 which has become locus classicus, laid down that the prosecution must prove following facts:

(i) It must establish quite objectively that a bodily injury is present;

(ii) The nature of injury must be proved. These are partly objective investigations;

(iii) It must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further; and

(iv) It must be proved that the injury of the type described made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the inquiry, is purely objective. Once these four elements are established by the prosecution, the offence is murder under Section 300 clause thirdly.

14. It is pleaded that fact situation does not indicate that the particular bodily injury was intended. Only one blow was given. There is no probation that whenever a single blow is given resulting in death, Section 302 I.P.C. will not be applicable. Though the number of injuries is one of the circumstances which Court may take into account for coming to a finding about intention or knowledge of the offender, it is not determinative factor. It would depend upon facts and circumstances of each case. The nature of weapon used, background facts leading to assault, place of injury have to be kept in mind.

Considering these aspects, the case at hand does not appear to be one where clause thirdly would be applicable. Conviction under Section 302 I.P.C. is to be altered to one under Section 304 Part II, I.P.C. In the circumstances, custodial sentence of eight years would be adequate.

15. So far as other offences and sentences imposed are concerned learned Counsel for accused has fairly conceded that convictions are proper. However, he made a prayer for reduction of sentence. In the alternative, it was prayed that sentences imposed may be directed to run concurrently with benefit of set off.

16. Considering the nature of dispute and background facts highlighted, we do not accept the plea for reduction of sentence. However, we direct that sentences imposed shall run concurrently.

Appeal is allowed to the extent indicated above.