M. C. JAIN, J. Four accused-appellants have preferred this appeal. They are Brahma Giri and his three sons-Brij Deo Giri, Kishun Deo Giri and Kunjan Giri. The judgment assailed is one dated 21-8-1981 passed by Sri J. P. Singh, the then IVth Additional Judge, Varanasi in S. T. No. 69 of 1980. All of them have been convicted under Section 302 IPC read with Section 34 IPC with the sentence of life imprisonment. The connected Criminal Revision No. 1817 of 1981 has been filed by Ram Narain Giri for the enhancement of the sentence, i. e. , to convert the life imprisonment passed against the accused into death sentence. The criminal appeal and criminal revision, being connected to each other, are now decided by this common judgment and order. 2. It may also be stated before proceeding further that the appellant Brahma Giri died during the pendency of the appeal and the same abated in respect of him under order dated 12-8-2004. Presently, the Court is concerned with the remaining three accused-appellants who are the sons of the deceased appellant. 3. The incident occurred on 5-6-1979 at about 8. 00 a. m. in village Lokuwa Brahmasthan, Police Station Dhanapur, District Varanasi situated at about 5 miles from the concerned Police Station. The report was lodged the same day at 10. 10 a. m. by Shambhoo Giri deceased himself who was alive by then. On the fateful day and time, the deceased Shambhoo Giri along with his servant Harish Chand was going to Saheedgaon to board a bus. He was carrying Khowa (concentrated milk preparation ). When he reached near Lokuwa Brahmasthan, owing to old enmity, the above named four accused-appellants armed with lathis and Gadasa arrived there and started assaulting him. The alarm raised by him and his servant Harish Chand attracted the witnesses Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2 village Mathia. He himself as also resident of village Mathia. When he (Shambhoo Giri) feel down, the accused persons continued to assault him. His both the legs had been fractured and he had received severe injuries in his head. The accused Brij Deo Giri was a police constable. After assaulting him, the accused ran away. The witnesses carried the injured Shambhoo Giri on a cot to the police station where he lodged the FIR. Initially, a case under Section 307 IPC was registered. His both the legs had been fractured and he had received severe injuries in his head. The accused Brij Deo Giri was a police constable. After assaulting him, the accused ran away. The witnesses carried the injured Shambhoo Giri on a cot to the police station where he lodged the FIR. Initially, a case under Section 307 IPC was registered. The investigation was taken up by S. O. Mahabal Singh P. W. 9. He recorded the statement of Shambhoo Giri and sent him for medical examination to Dhanapur Dispensary. He also went there with other police personnel. Medical Officer was not available at Dhanapur Dispensary. He sent the injured to Sakaldiha Dispensary for medical examination and aid. Before constable Hari Deo Ram P. W. 5 could reach the dispensary of Sakaldiha with Shambhoo Giri, he died. The doctor at Sakaldiha declared him to be dead. He brought the dead-body to Police Station, Dhanapur where inquest report of the dead-body was prepared. After completion of the formalities, the dead-body was sent for post-mortem through the same constable. Post-mortem over the dead-body of Shambhoo Giri was conducted by Dr. Nar Singh Sharma P. W. 7 on 6-6-1979 at 3. 15 p. m. He was aged about 50 years and about one day had passed since he died. 4. The following ante-mortem injuries were found on his person : (1) Incised wound 3 cm x 1/2 cm x bone deep on the right side head, 10 cm above right ear. (2) Lacerated wound 5 cm x 1 cm x bone deep on the right side head, 12 cm above right ear. (3) Incised wound 5 cm x 1/2 cm x bone deep on the right side head, 10 cm above right ear. (4) Lacerated wound 2 1/2 cm x 1/2 cm x skin deep on the middle of crown of head, 16 cm above right ear. (5) Lacerated wound 2 cm x 1/2 cm x skin deep on the left side crown of head, 12 cm above left ear. (6) Contusion 2 cm x 1 1/2 cm on the middle of forehead, 8 cm above roof of nose. (7) Contusion 12 cm x 5 cm on the left side forehead, nose and left eye. (8) Abraded contusion 5 cm x 2 cm on the outer aspect of lower part of right arm, 6 cm above elbow joint. (6) Contusion 2 cm x 1 1/2 cm on the middle of forehead, 8 cm above roof of nose. (7) Contusion 12 cm x 5 cm on the left side forehead, nose and left eye. (8) Abraded contusion 5 cm x 2 cm on the outer aspect of lower part of right arm, 6 cm above elbow joint. (9) Multiple abrasions in an area of 3 cm x 1 cm on the back of right below joint. (10) Multiple abrasions in an area of 6 cm x 2 cm on the back and inner aspect of right forearm, 7 cm above wrist joint. (11) Multiple abraded contusions in an area of 5 cm x 2 cm on the back of right hand, 4 cm above the root of thumb. (12) Abrasion 2 cm x 1 cm on the outer aspect of right knee joint. (13) Multiple abraded contusions in an area of 5 cm x 3 cm on the medial aspect right leg, 3 cm above medial malleolus. (14) Lacerated wound 1 1/2 cm x 1/2 cm x bone deep on the medial aspect of right leg just above ankle joint, fracture both bones of leg (Tibia and Fibula ). (15) Abraded contusion in an area of 15 cm x 6 cm on the frontal and outer aspect of left knee joint. (16) Multiple abraded contusions in an area of 30cm x 12 cm on the outer aspect of left leg and ankle joint. (17) Incised wound 1 cm x 1/4 cm x skin deep on the back of left thumb. (18) Lacerated wound 2 cm x 1 cm x muscle deep on the back of tip of left thumb, whole nail-bed dislocated. (19) Abraded contusion 7 cm x 1 cm on the medial aspect of left fore-arm, just below wrist joint. (20) Multiple abraded contusion in an area of 8 cm x 5 cm on the back of left arm lower part and left elbow joint. 5. On internal examination, bones of scalp and skull were found contused. The death had occurred due to shock and haemorrhage as a result of multiple injuries sustained by the deceased. 6. The accused denied the allegations of the prosecution and claimed false implication due to enmity. It was also part of the defence that Brij Deo Giri had not visited Mathia village. The death had occurred due to shock and haemorrhage as a result of multiple injuries sustained by the deceased. 6. The accused denied the allegations of the prosecution and claimed false implication due to enmity. It was also part of the defence that Brij Deo Giri had not visited Mathia village. Instead, he was at Allahabad at his place of posting on the day of the incident. 7. The prosecution examined, in all, 9 witnesses. Out of them Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2 were examined as eye-witnesses of the occurrence. The rest were doctor, Investigating Officer and other formal witnesses. 8. The accused also examined one Ramji Pandey in their defence besides filing a few documents. 9. The evidence of the prosecution appealed to the learned trial Judge who recorded the impugned judgment. 10. We have heard Sri G. S. Chaturvedi assisted by Sri Samit Gopal, learned Counsel for the appellants and Sri Surendra Singh Yadav, learned A. G. A. from the side of the State as also Sri Shashank Shekhar Giri assisted by Sri P. K. Singh, learned Counsel for the complainant. In criminal revision, arguments for the revisionist have been advanced by Sri Shashank Shekhar Giri and from the other side, the arguments of Sri G. S. Chaturvedi have been heard. 11. The submissions of Sri Chaturvedi from the side of the appellants are two fold. Firstly, the eye- witness account rendered by the so-called eye-witnesses is unreliable. Secondly, the alternative argument is that the offence does not travel beyond Part II of Section 304 IPC. 12. Per contra, the learned A. G. A. and the Counsel for the complainant have urged that the testimony of the two eye- witnesses was of sterling character and the same clinchingly established the commission of the offence of murder by the accused-appellants. They, according to them, have rightly been convicted for the said offence. It has also been argued by the learned Counsel for the revisionist (complainant) that the sentence of life imprisonment awarded by the Court below deserves to be converted into death sentence. 13. We have carefully scrutinized the testimony of the two eye-witnesses Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2. It has also been argued by the learned Counsel for the revisionist (complainant) that the sentence of life imprisonment awarded by the Court below deserves to be converted into death sentence. 13. We have carefully scrutinized the testimony of the two eye-witnesses Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2. We find that their testimony is consistent with no infirmity whatsoever, conclusively proving that the accused-appellants and the deceased-appellant Brahma Giri assaulted the unfortunate Shambhoo Giri on the given date, time and place who died of the injuries inflicted on him by them. It is further established that the deceased-appellant Brahma Giri wielded a Gadasa (sharp edged weapon) whereas present accused-appellants rained lathi blows on the victim, causing a number of injuries on different parts of his body. 14. We note this, too that the motive on the part of the accused- appellants and their deceased father Brahma Giri to commit this crime is also clearly spelt out from the testimony of these two eye- witnesses. Ram Narain Giri P. W. 1 is the nephew of the deceased Shambhoo Giri. He stated that there was Khandani enmity between the deceased and Brahma Giri accused. It has also come down from his testimony that there was litigation also which sharpened the enmity. One Ram Pyari execute an agreement of sale of her property in favour of one Shiv Kumar Singh. Later on, Ram Pyari with the backing of Brahma Giri did not execute the sale- deed as per the agreement of sale. Shambhoo Giri and Paras Nath Singh were marginal witnesses of that agreement. A suit was pending between Ram Pyari and Shiv Kumar Singh when this incident occurred. The witness stated that accused were preventing Shambhoo Giri from appearing as witness. Shiv Kumar Singh came to be murdered also. Shambhoo Giri was doing pairvi in that case. The accused Brahma Giri and Kishan Deo Giri were also accused in that case and they were sentenced to life imprisonment but their appeal was pending in the High Court. It is, thus, established that the accused-persons had deep seated grudge against Shambhoo Giri who was pairokar in murder case of Shiv Kumar Singh and marginal witness of agreement of sale executed by Ram Pyari in Shiv Kumar Singhs favour. 15. It is, thus, established that the accused-persons had deep seated grudge against Shambhoo Giri who was pairokar in murder case of Shiv Kumar Singh and marginal witness of agreement of sale executed by Ram Pyari in Shiv Kumar Singhs favour. 15. Coming to the testimony of the two eye-witnesses about actual occurrence, Ram Narain Giri P. W. 1 stated Shambhoo Giri used to prepare Khowa which he used to take to Varanasi for sale. He used to go at about 8. 00 a. m. daily to board a bus at Saheed Gaon. On the fateful day and time, he was going alongwith his servant Harish Chand Agrawal for the purpose. To explain his presence at the spot, he stated that he was grazing his she-buffalo in the nearby grove at a distance of about 15 paces. Permanand Giri P. W. 2 was also scrapping grass. His attention was attracted by the shouts raised by Shambhoo Giri and Harish Chand Agrawal. He rushed to that side and saw that Brahma Giri with Gadasa and the remaining accused-appellants with lathi were assaulting Shambhoo Giri. He also stated that Brahma Giri exhorted his three sons to murder Shambhoo Giri. Shambhoo Giri got a report written by Permanand Giri. They took Shambhoo Giri on a cot to Police Station where Shambhoo Giri lodged the report. He further stated that Shambhoo Giri was sent to Dhanapur Dispensary where Medical Officer was not available and when he was being taken to the Sakaldiha Dispensary, he succumbed to his injuries. 16. His statement has been corroborated in material particulars by Permanand Giri P. W. 2 who is scribe also of the FIR lodged by the deceased victim himself. Apart from giving evidence on the motive aspect alluded to earlier, he stated that on the relevant time, he was scrapping grass near the field of Ram Karan Giri where Ram Narain Giri was also grazing his she-buffalo. It is there in his testimony that Shambhoo Giri and his servant raised alarm which attracted his attention and he saw the accused- appellants assaulting Shambhoo Giri with their weapons. He named them all with their weapons, i. e. , Brahma Giri armed with Gadasa and the remaining accused-appellants armed with lathis. Shambhoo Giri fell down, but they continued their assault on him. He and Ram Narain Giri P. W. 1 challenged the accused-appellants who then ran away. He named them all with their weapons, i. e. , Brahma Giri armed with Gadasa and the remaining accused-appellants armed with lathis. Shambhoo Giri fell down, but they continued their assault on him. He and Ram Narain Giri P. W. 1 challenged the accused-appellants who then ran away. He further stated that Shambhoo Giri dictated report to him which he took down on paper an hearing contents, he (Shambhoo Giri) put his thumb impression thereon. Shambhoo Giri was quite conscious at that time. 17. As against this, the testimony of Ram Ji Pandey DW 1 was to the effect that when he was going to ease himself, he found one man lying under mango tree in his grove. He called that man but he did not respond. He went near him and saw that he was Shambhoo Giri who was unable to speak and who had received injuries on his person. He further stated that on his information, Shiv Murat Giri alongwith other persons reached the spot. They also called Shambhoo Giri, but he did not respond. Thereafter, Shiv Murat Giri took Shambhoo Giri on a cot to his house. He also stated that he remained in the grove for about half an hour and that Shambhoo Giri did not speak a word during that interval. 18. We are of the firm view that Ram Ji Pandey DW 1 was a got up witness produced by the defence in a desperate attempt to wipe out the effect of the overwhelming evidence of Ram Narain Giri PW 1 and Permanand Giri PW 2 proving the guilt of the accused persons. The defence case could not be accepted that on account of enmity, Permanand Giri PW 2 prepared false report in collusion with Investigating Officer Mahabal Singh PW 9 and falsely implicated the accused-persons. Ram Narain Giri PW 1 was not a witness in the murder case of Shiv Kumar Singh in which Brahma Giri and Kishan Deo Giri were also accused and were sentence to life imprisonment. The calendar of the said case Ex. Kha-4 indicated that Permanand Giri was cited as a witness in that case. Ram Narain Giri PW 1 was not a witness in the murder case of Shiv Kumar Singh in which Brahma Giri and Kishan Deo Giri were also accused and were sentence to life imprisonment. The calendar of the said case Ex. Kha-4 indicated that Permanand Giri was cited as a witness in that case. The copy of the judgment of the said murder case had been filed by the prosecution showing that Ram Janam Singh, Angad Singh, Brahma Giri and Kishan Deo Giri were convicted and sentenced to life imprisonment under Section 302 IPC read with Section 34 IPC. Permanand Giri PW 2 did not appear as a witness in that case from the side of the prosecution. There could hardly be any reason for him to be instrumental in concocting a false case against the accused-appellants and their deceased father Brahma Giri. The copy of the judgment of that case-S. T. No. 431 of 1976 dated 8-10-1977 contains full facts which led to the murder of Shiv Kumar Singh. The judgment recites that Ram Pyari had agreed to sell her property for Rs. 15,000 and one Kalawati agreed to sell her property for Rs. 12,000 to Shiv Kumar Singh and that each of them had been advanced Rs. 6,000. The agreement of sale could not be executed because litigation was going on between the parties in a consolidation Court. Brahma Giri somehow won over Ram Pyari and began to talk for the sale of her land in his favour. This background led to the murder of Shiv Kumar Singh in which Brahma Giri and Kishan Deo Giri were also accused. 19. Though Ram Narain Giri PW 1 is the nephew of the deceased Shambhoo Giri, but that would not justify the rejection of his testimony, particularly when he withstood the test of cross- examination firmly. It was held by the Supreme Court in the case of Angnoo v. State of U. P. , AIR 1971 SC 296 , that if a witness is brother of the deceased, the fact of his relationship would add to the value of his evidence because he would be interested in getting the real culprit rather than innocent person, punished. 20. 20. The apex Court again held in the case of State of U. P. v. Suresh alias Chhavan and others, AIR 1982 SC 1076 , that statement of a family member of the deceased cannot be rejected on the ground that he is relate to the victim. What is required is that the statement is to be scrutinized with care. As we said, Ram Narain Giri P. W. 1 as well as Permanand Giri PW 2 gave plausible explanation for their presence at the spot and nothing could come out from their cross-examination to shatter or shake the central core of their testimony against the accused- appellants. The accused-appellants could not show any direct animus with any of them. Both of them gave vivid description of the occurrence which is corroborated by the written report, the author of which was the victim himself. It has all the attributes of his dying declaration since it contains the cause of his death. To say in other words, the testimonial assertions of Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2 rather get strength and corroboration from the dying declaration of the deceased in the form of FIR lodged by him. We should also point out that Dr. Narsingh Sharma P. W. 7 opined that the deceased might have been alive for about four or five hours after receiving injuries. The accused-appellants could not prove any animus or motive against the Investigating Officer Mahabal Singh P. W. 9 either which could prompt him to extend his helping hand for their false implication. 21. As we said, Permanand Giri P. W. 2, no doubt, was cited as a witness in the murder case of Shiv Kumar Singh, but he stated that he had not appeared as a witness in that case as is borne out from the judgment of the said case also Ex. Ka-20. The testimony of Ram Narain Giri P. W. 1 and Permanand Giri P. W. 2 was corroborative of each other in all material particulars. 22. It is of no consequence that Harish Chand Agrawal-servant of Shambhoo Giri, who was accompanying him, could not be examined as a witness. Ram Narain Giri P. W. 1 stated that Harish Chand Agrawal was abducted by the accused-persons. 22. It is of no consequence that Harish Chand Agrawal-servant of Shambhoo Giri, who was accompanying him, could not be examined as a witness. Ram Narain Giri P. W. 1 stated that Harish Chand Agrawal was abducted by the accused-persons. The case has, indeed, to be decided on the strength of the evidence adduced in the Court and not on the speculative approach stemming from the non-production of a particular witness. It is not necessary for the Court to debate on the reason for non- production of Harish Chand Agrawal. What is material and important is that the testimony of the two eye-witnesses produced is sufficient to prove the accused-appellants to be the assailants of the deceased. Non-production of any other witness is also well explained that none else had arrived at the time of assault. 23. So, to come to the point, we find that the criticism levelled by the learned Counsel for the accused- appellants against the testimony of Ram Narain Giri PW 1 and Permanand Giri PW 2 is wholly unmerited. 24. The next question naturally arises as to what offence had precisely been committed by the accused- appellants within the ambit of law. A look at the post-mortem report of the deceased would indicate that he received as many as 20 injuries on different parts of his body. Two of them were cut weapon injuries (incised wounds on the right side of the back of head-injuries No. 1 and 3 ). The rest were blunt weapon injuries. It would be recalled that the deceased accused-appellant Brahma Giri wielded Gadasa (cut weapon) whereas the present three accused- appellants wielded lathis. Blunt weapon injuries had been inflicted on different parts of the body. In ante-mortem injury No. 14, there was fracture of both bones of right leg (Tibia and Fibula ). On internal examination, bones of scalp and skull were found contused and the death was due to shock and haemorrhage as a result of multiple injuries. We note from the statement of Dr. Narsingh Sharma PW 7 that none of the ante-mortem injuries of the deceased was dangerous to life. To put it differently, none of his individual injuries was dangerous to life. It is manifest from the outcome of the internal examination of the dead-body also that there was no serious damage underneath any particular injury. Narsingh Sharma PW 7 that none of the ante-mortem injuries of the deceased was dangerous to life. To put it differently, none of his individual injuries was dangerous to life. It is manifest from the outcome of the internal examination of the dead-body also that there was no serious damage underneath any particular injury. All the same, there was deep seated enmity between the deceased on the one hand and the accused-appellants including their deceased father Brahma Giri on the other. They were actuated to commit this crime owing to such enmity. Father and his there sons assaulted the unarmed Shambhoo Giri. Father wielded a shape edged weapon whereas his three sons (surviving accused- appellants) used lathis. As many as 20 injuries were inflicted on his person. 25. To render culpable homicide to be murder, a case must come within the grip of Clauses 1, 2, 3 or 4 of Section 300 IPC. In the present case, on cumulative consideration, we find that the intention to cause death was not there on the part of the accused-appellants having regard to the facts, evidence and circumstances of the case as discussed above. However, keeping in view the weapons used by them and the number of injuries caused to the deceased, they have to be imputed the knowledge of inflicting such injuries as were likely to cause the death of the victim. The case is, therefore, found covered under Part II of Section 304 IPC. They are acting in furtherance of common intention of them all. The offence committed by the accused-appellants is culpable homicide not amounting to murder, punishable under Part II of Section 304 IPC read with Section 34 IPC. The sentence of five years rigorous imprisonment to each of them and a fine of Rs. 5,000 would be sufficient to meet the ends of justice. In default of payment of fine, each of them would be required to undergo further rigorous imprisonment for one year. The fine, if realised, would be directed to be paid to the wife of the deceased or to his other immediate heir in the eventuality of the wife being not there, as compensation. 26. Since we find it to be a case of culpable homicide not amounting to murder, the Criminal Revision No. 1817 of 1981 filed by the Ram Narain Giri fails. 27. 26. Since we find it to be a case of culpable homicide not amounting to murder, the Criminal Revision No. 1817 of 1981 filed by the Ram Narain Giri fails. 27. Our final order is thus : We partly allow Criminal Appeal No. 1874 of 1981. The conviction of accused-appellants, namely, Brij Deo Giri, Kishun Deo Giri and Kunjan Giri is altered from Section 302 IPC read with Section 34 IPC to that of Part II of Section 304 IPC. Their sentence is also modified from life imprisonment to rigorous imprisonment for five years and a fine of Rs. 5,000 to be paid by each of them. In default of payment of fine, each of them shall undergo further rigorous imprisonment for one year. The fine, if realized, shall be paid as compensation to the wife of deceased Shambhoo Giri and in her absence to his other 0 immediate heir (as per the Hindu Succession Act, 1956 ). The appeal has already abated respecting Brahma Giri who has died. 28. The Criminal Appeal No. 1817 of 1981 filed by the revisionist-Ram Narain Giri is dismissed. 29. The accused-appellants, Brij Deo Giri, Kishun Deo Giri and Kunjan Giri are on bail. The Chief Judicial Magistrate, Varanasi shall cause them to be arrested and lodged in Jail to serve out the sentence passed against them. 30. Let a copy of this judgment alongwith record of the case be immediately sent to the Court below for compliance under intimation to this Court within two months from the date of rec-eipt. Cr. Appeal No. 1874 partly allowed and Crl. Appeal No. 817 dismissed. .