Sections 149, 302, 307 and 326-Evidence Act, 1872, Sections 27, 3, 45 and 59-Family property disputes-Incident narrated by son escaped-Accused seen fleeing the place- Witness present on spot not unnatural-Narration by escaped son cannot be discarded-No improvement in FIR- Alternation of conviction from under Section 307, IPC.- There is no reason to disbelieve B so far as narration made by N of the incident to him is concerned. Admittedly, the hotel is about 4-5 minutes away from the spot where N and R were assaulted and injured. And even though R died on the spot and N survived, and therefore, going of B to the spot on receiving information of the incident and attack, and N"s narrating entire incident, cannot be rejected and there was no reasons to disbelieve him in that regard. No doubt N was in a injured condition and his injuries were bleeding, but he was conscious and on seeing his father it was natural N to disclose as to what had happened and how R and N were assaulted, by whom and with what weapons.

       If the evidence of the prosecution viz., PW No.2 N alone is considered, which gets corroboration from the evidence discussed above, PW No.2 N has specifically given the names of five accused who were the assailants of his brother R and himself. According to him all of them were armed with weapons and all of them were assaulted R and himself, simultaneously in the course of same transaction and thereafter the assailants ran away from the spot. Even PW No. 3 T supports N in this regard. Further injuries on the persons of R proved that he had bullet injury as well as unlawful assembly and they came at the spot with common object of killing R and also N because N was also shot at, though he survived from the attack by guns. The so called absence of evidence of the accused surrounding Ramdas, as is observed by the trial Court, has to be inferred from the attack by five or more persons. Finding of trial Court set aside.

       For Citation : 2000 (5) Born CR 360