JUDGMENT : Rajendra Kumar, J. Accused-Appellant-Indrabhan faced trial in Sessions Trial No. 14 of 2010 (State v. Indrabhan, Case Crime No. 597 of 2009) under Sections 308 and 304 IPC, Police Station Saini, District Kaushambi, which came to be heard and decided by Additional Sessions Judge, Court No.4, Kaushambi, vide its judgment and order dated 14.04.2011 convicting accused-appellant under Sections 304 and 308 IPC and sentencing him to undergo life imprisonment under Section 304 IPC and 7 years R.I. and fine of Rs. 5000/- under Section 308 IPC. Accused-appellant has sought interference of this Court by filing present Jail Appeal from Jail through Jail Superintendent concerned. 2. Factual matrix of the case as come out from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as under : 3. PW-1, Ram Bharose, presented a written report, Ex.Ka-,1 in the Police Station, Saini, District Kaushambi stating therein that his younger son Indrabhan did not have any business and is habitual of liquor and gambling, used to demand money from his mother Ramrati deceased. On fateful day i.e. 15.9.2009, victim Ramrati and daughter-in-law Ketki, PW-2, were in the old house. Accused came there and demanded money from his mother, whereupon victim and PW-2 objected. Thereupon accused with intention to kill, assaulted victim Ramrati and PW-2. Ramrati succumbed to injury on spot and PW-2 Ketki received injuries on her head. On hearing the alarm raised by PW-2, Surendra Pratap and Chunnu Maurya, rushed to spot but accused ran away from spot. 4. On the basis of written report Ex.Ka-1, a chick FIR, Ex.Ka-3, was registered by PW-5 as Case Crime No.597 of 2009 under Section 302 and 307 IPC against the accused. Entry of case was made in General diary, copy whereof is Ex.Ka- 4. 5. Under the direction of PW-6, S.I. Vinod Kumar Sharma held inquest over the dead body of deceased Ramrati, prepared Panchayat-nama Ex.Ka-7 and other papers relating thereto. Dead body was duly sealed and sent for postmortem to mortuary, Allahabad. 6. PW-7, Dr. Shaji Raheel, conducted autopsy of dead body of Ramrati, aged about 60 years, and prepared post mortem report, Ex.Ka-13, opining that death was possible due to Coma as a result of ante-mortem injury on head and one and half day prior to post mortem. Doctor found five ante-mortem injuries which reads as under : - 1. 6. PW-7, Dr. Shaji Raheel, conducted autopsy of dead body of Ramrati, aged about 60 years, and prepared post mortem report, Ex.Ka-13, opining that death was possible due to Coma as a result of ante-mortem injury on head and one and half day prior to post mortem. Doctor found five ante-mortem injuries which reads as under : - 1. Lacerated wound 4 cm x 1-1/2 cm present on right side forehead with under lying bone fractured. 2. Lacerated wound 8 cm x 1 cm present on mid of head with under lying bone fractured. 3. Lacerated wound 4 cm x 1 cm present 2 cm in front of injury no.2. 4. Contusion5 cm x 5 cm present on right side ear. 5. contusion 6cm x 5 cm present on left hand. 7. PW-6 commenced investigation, recorded statement of PW-1, Ram Bharose, Munna and PW-2, Ketki, visited spot, prepared site plan Ex.Ka.-5, collected blood stained and simple earth from spot, prepared memo thereof Ex.Ka-6, took iron rod which was, allegedly, used in the incident, prepared memo thereof Ex.Ka.-2. Thereafter, he was transferred and further investigation was entrusted to S.I. Shailesh Kumar Singh (not examined) who submitted charge-sheet against accused, under Sections 304 and 308 I.P.C. before the Chief Judicial Magistrate, concerned. 8. Case, being exclusively triable by Court of Sessions, was committed to Session Judge for trial. 9. Thereafter, he was transferred and further investigation was entrusted to S.I. Shailesh Kumar Singh (not examined) who submitted charge-sheet against accused, under Sections 304 and 308 I.P.C. before the Chief Judicial Magistrate, concerned. 8. Case, being exclusively triable by Court of Sessions, was committed to Session Judge for trial. 9. Trial Court, after considering the entire material on record, framed charges against accused-appellant on 27.1.2000 under Sections 304 and 308 IPC, which read as under: ^^eSa Vh-,e- [kkWu l= U;k;k/kh'k dkS'kkch vki bUnzHkku dks fuEufyf[kr vijk/k ds vkjksi ls vkjksfir djrk gwWA izFke& ;g fd fnukad 15-9-09 dk le; 9 cts fnu LFkku xzke VkaMk Fkkuk lSuh tuin dkS'kkch esa vki vfHk;qDr us viuh eka ¼oknh dh iRuh½ Jherh jkejrh ds flj esa yksgs dh ikbi ls ekjk ftldh pksV ls jkejrh dh e`R;q gks x;hA bl izdkj vki vfHk;qDr dk ;g d`R; /kkjk 304 Hkk- n- l- ds vUrxZr n.Muh; vijk/k gS tks bl U;k;ky; ds laKku esa gSA f}rh;& ;g fd mijksDr] le; LFkku esa vki vfHk;qDr us viuh HkkHkh ¼oknh dh cgw½ dsrdh ds lj es ekjkA bl pksV ls ;fn mldh e`R;q gks tkrh rks vki gR;k ds dksfV es u vkus okys vkijkf/kd ekuoo/k ds nks"kh gksrsA bl izdkj vkidk ;g d`R; /kkjk 308 Hkk- n- l- ds vUrxZr n.Muh; vijk/k gS tks bl U;k;ky; ds laKku esa gSA vr% ,r~r }kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vijk/k ds vkjksi eas vkidk fopkj.k blh U;k;ky; }kjk fd;k tkosaxkA^^ I, T.M. Khan, Sessions Judge, Kaushambi, do hereby charge you, Indrabhan, with the following offences: First: That on 15.09.2009 at 9 am, at Village Tanda, PS Saini District Kaushambi, you, the accused, hit your mother Smt. Ramrati (complainant's wife) on her head with an iron pipe; injuries so inflicted caused Ramrati's death. In this way, this act of yours is an offence punishable u/s 304 of IPC, which is within cognizance of this court. Second: That on the aforesaid time and place, you, the accused, hit your Bhabhi namely Ketki i.e. sister-in-law (daughter-in-law of the complainant) on her head. If her death had been caused due to this injury, you would have been guilty of culpable homicide not amounting to murder. In this way, this act of yours is an offence punishable u/s 308 of IPC, which is within cognizance of this court. If her death had been caused due to this injury, you would have been guilty of culpable homicide not amounting to murder. In this way, this act of yours is an offence punishable u/s 308 of IPC, which is within cognizance of this court. Hence, it is hereby directed that you be tried by this court for the said offences. (English Translation by Court) 10. Accused denied the charges leveled against and claimed trial. 11. In order to substantiate its case, prosecution examined as many as seven witnesses in the following manner :- Sr.No. Name of PW Nature of witness Paper proved 1 Ram Bharose Fact Ex.Ka-1 2 Ketki Fact Nil 3 Sukhendra Prasad Ojha Fact Ex. Ka-2 4 Dhunna Mauraya Fact Nil 5 Satya Prakash Mishra Formal Ex.Ka-3 and 4 6 Vinod Prakash Srivastava Formal Ex. Ka-2, 5, 6, 7, 8, 9, 10, 11 & 12 7 Dr. Shazil Raheel Formal Ex. Ka-13 12. On closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating circumstances and other evidence. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication and statement of witnesses is said to be wrong. He did not choose to adduce evidence in defence. In response of question no.8, he answered that he wanted to go home. 13. After hearing learned counsel for the parties and analyzing entire evidence led by prosecution on record, Trial Court has found accused-appellant guilty and convicted him as stated above. Feeling aggrieved with impugned judgment and order of conviction and sentence, present appeal has been filed through Jail. 14. We have heard Sri Imran Ullah, Advocate (Amicus Curiae) for appellant and Sri Nikhil Chaturvedi, learned A.G.A for State-respondent at length and gone through the record available on file, carefully, with valuable assistance of learned Counsel for parties. 15. Learned Amicus Curiae appearing for appellant took us through record and challenged conviction and sentence of accused-appellant, advancing his submissions, in the following manner :- (i) PW-1 is husband of deceased-Ramrati and first Informant. He is not independent witness. (ii) There is no sufficient motive to accused to commit present crime. (iii) PW-2 is the daughter-in-law of deceased, PW-3, PW-4 happened to be eye witnesses of the incident. Their evidence does not go with the medical evidence. He is not independent witness. (ii) There is no sufficient motive to accused to commit present crime. (iii) PW-2 is the daughter-in-law of deceased, PW-3, PW-4 happened to be eye witnesses of the incident. Their evidence does not go with the medical evidence. (iv) There are several contradictions rendering prosecution case doubtful. (v) FIR has been lodged by PW-1 (husband of deceased), close relative, is not eye witness. (vi) Prosecution has failed to prove its case beyond reasonable doubt against accused-appellant, therefore, appeal deserves to be allowed. (vii) PW-2, Ketki, is said to be injured in incident but there is no medical evidence in the file under Section 308 IPC. No medical report is on file, therefore, conviction under Section 308 cannot be sustained. (viii) Sentence of accused-appellant under Section 304 awarded by Trial Court is highly excessive and appellant should be considered on minimum sentence. 16. Per contra learned AGA opposed submissions and urged that PW-1 is husband of deceased as well as father of accused; he is a witness of fact, who has supported prosecution and established that deceased is assaulted by accused with iron rod; in his statement, he admitted that he was taking meal at the time of incident, therefore, he is natural witness; PW-2 was injured in the incident; her presence on the spot cannot be doubted; prosecution has established its case beyond reasonable doubt and medical evidence also supports ocular version, therefore, appeal is liable to be dismissed. 17. Although time, place, date and manner of injuries found on the body of deceased as well PW-2 as established by prosecution have not been disputed and challenged by defence but according to advocate for defence, accused-appellant is not responsible for committing crime. From the evidence of PWs, it is established that Ramrati and PW-2, Ketki, received serious injuries at the time, place and date and in the manner as stated by prosecution. Victim Ramrati succumbed to injuries on spot. 18. The questions remain for consideration are "whether accused appellant is responsible for assaulting his mother and PW-2, by iron rod due to which Ramrati and Ketki received injuries and Ramrati died on spot" and "whether Trial Court rightly convicted the accused for committing crime under Section 304 and 308 I.P.C. or not?" 19. We may now proceed to consider, briefly, evidence of prosecution. We may now proceed to consider, briefly, evidence of prosecution. PW-1 deposed that, on the fateful day i.e. 15.9.2009, accused demanded money from his mother (deceased) who and PW-2 objected whereupon accused-appellant gave a rod blow on the head of victim (his mother Ramrati), who succumbed to death. Thereafter, he assaulted Smt. Ketki PW-2 on her head by the same rod. On hearing alarm raised by PW-2, PW-1 along with PW-3 and 4 rushed to spot. He further deposed that accused-appellant went to second floor of house and sat there after closing the door from inside. 20. PW-2, Ketki, deposed that on the day of incident her mother-in-law Ramrati went to invite accused to take meal in the noon. Accused demanded money. When she refused to give money to accused, then he assaulted her mother-in-law (Ramrati) and her with iron rod. On raising alarm by her, Sukhendra Prasad Ojha PW-3 came there but accused ran away and went inside. 21. PW-3 deposed that on 15.09.2009 at about 9:00 am, he was standing on his door. Hearing a scream from the old house of PW-1, he reached there and saw that victim Ramrati was lying there in unconscious condition and accused-appellant was assaulting PW-2. On seeing them, accused rushed to the roof of house and got hidden himself inside, leaving iron rod on spot. At that time, PW-4 also arrived there. He further deposed that C.O. Police came there and took out accused by breaking door. 22. PW-4 also supported prosecution case by making deposition that on 15.9.2009 at about 9:00 a.m. he was passing through the road, heard scream of Ketki PW-2 and saw that accused-Indrabhan was assaulting her by iron rod. Ramrati was lying there unconscious. Accused-appellant rushed to the roof of his double storied house and got himself hidden. After some time Ramrati succumbed to injuries. 23. All the four witnesses withstood lengthy cross-examination. PW-1 is not an eyewitness as he admitted that he was not present on the spot at the time of incident. PW-2 was injured. PW-3 and 4 saw accused assaulting PW-2 with iron rod. From the evidence of PW-2, 3 and 4 no major contradiction could be brought. 23. All the four witnesses withstood lengthy cross-examination. PW-1 is not an eyewitness as he admitted that he was not present on the spot at the time of incident. PW-2 was injured. PW-3 and 4 saw accused assaulting PW-2 with iron rod. From the evidence of PW-2, 3 and 4 no major contradiction could be brought. It has come in the evidence of all four witnesses that accused-appellant was unemployed and in bad habit of consuming liquor, gambling and just to satisfy his lust he used to demand money from his mother due to which he committed crime. 24. Another argument advanced by learned counsel for appellant is that witnesses of fact, PW-1 and 2 are relative of deceased, so their testimony can not be said to be reliable and trustworthy. 25. Admittedly, PW-1 is husband of deceased as well as father of accused. PW-1 established the presence of accused on the fateful day in the house where Ramrati and Ketki, PW-2, were seriously injured, and later, Ramrati succumbed to injuries. PW-2 was also there and got injured in incident. Therefore, her presence in the house is quit natural and both are natural witness. We are not impressed with the submission of counsel for appellant in this regard. 26. So far as relative witness is concerned, it is now well settled law laid down in Dilip Singh v. State of Punjab, 1953 AIR(SC) 364 wherein Court has held 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 cause, such as 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 a 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 attempting any sweeping generalisation. Each case must be judged on its own facts. However, we are not attempting any 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." 27. In Dharnidhar v. State of UP, 2010 (7) SCC 759 , Court has observed as follows :- "There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry, 2010 (1) SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim" 28. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013 (15) SCC 298 , Court has held as under :- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of UP, 2011 AIR(SC) 2292; and Dhari & Ors. v. State of U. P., 2013 AIR(SC) 308)." 29. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegations against an innocent person that too his own real son. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegations against an innocent person that too his own real son. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence. 30. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. 31. In Lokesh Shivakumar v. State of Karnataka, 2012 (3) SCC 196 , Court held as under :- "As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it." 32. In so far as discrepancies, variations and contradictions in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case. 33. In Sampath Kumar v. Inspector of Police, Krishnagiri, 2012 (4) SCC 124 , Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person. 34. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019 Supreme Court has observed that Court will have to evaluate evidence before it, keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole. 35. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of Supreme Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018. 36. Here it is noteworthy to mention that as per statement of PW-2, she is said to be assaulted by accused-appellant but admittedly she was not medically examined. Only oral evidence is there in support thereof. Prosecution has failed to explain as to why PW-2 has not been medically examined, if she was seriously injured. We failed to understand, how Trial Court convicted and sentenced appellant under Section 308 IPC without any sufficient evidence. 37. In the present case, it is fully established from evidence on record that Ramrati and Ketki, PW-2, were injured by accused in the house, evidence shows that dead body of Ramrati was found in the varandah of house at the time of inquest. The medical evidence shows that death of Ramrati might have occurred due to ante mortem injuries at the time as alleged by prosecution, therefore, there cannot be any hesitation to come to conclusion that accused caused death of Ramrati by causing several injuries on her body by iron rod due to which she succumbed to injuries. 38. Accordingly, jail appeal is liable to be partly allowed, modifying impugned judgment of Trail Court. Conviction of appellant under Section 304 IPC is maintained and upheld but conviction under Section 308 IPC is set aside and he is acquitted of charge under Section 308 IPC. 39. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. Conviction of appellant under Section 304 IPC is maintained and upheld but conviction under Section 308 IPC is set aside and he is acquitted of charge under Section 308 IPC. 39. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 40. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, 2014 (7) SCC 323 , Sham Sunder vs. Puran, 1990 (4) SCC 731 , M.P. v. Saleem, 2005 (5) SCC 554 , Ravji v. State of Rajasthan, 1996 (2) SCC 175 ]. 41. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 42. 41. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 42. Considering the facts and circumstances of the case, nature of acquisition, weapon used in the offence, circumstances in which accused appellant committed crime, mental position of accused-appellant at the time of incident, nature of injuries found on the person of deceased, conduct of accused-appellant after committing the offence, it would be appropriate to punish the accused-appellant in the following manner, which would meet the ends of justice. 43. We partly allowed the jail appeal filed by accused-appellant, modifying the judgement of conviction under Section 304 I.P.C. Accused-appellant is sentenced to undergo rigorous imprisonment under Section 304 IPC for a period of 10 years with a fine of Rs. 10,000/-. In default of payment of fine, he shall undergo further simple imprisonment for a period of two months. He shall be entitled to set of under Section 428 I.P.C. 44. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court. 45. Before parting we provide that Sri Imran Ullah, learned Amicus Curiae for appellant who assisted the Court very diligently, shall be paid counsel's fee as Rs. 15,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.