JUDGMENT : Rajendra Kumar, J. Against judgment and order dated 26.8.2010 passed by Additional Sessions Judge / Special Judge (Dacoity Affected Area), Hamirpur in Sessions Trial No.367 of 2008, Crime No.802 of 2008, under Sections 304 and 504 IPC, Police Station Muskara, District Hamirpur, accused-appellant has preferred present jail appeal from Jail through Superintendent District Jail, Varanasi. By impugned judgement, appellant has been convicted under Section 304(1) I.P.C. and sentenced to undergo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine, six month additional imprisonment. 2. Factual matrix of case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows. 3. Pw-1 Shankar Dayal submitted a written report Ex.Ka-1 in Police Station Muskara, District Hamirpur stating that his brother Kamla Joshi was running a shop of puncture repairing in the village. On 26.9.2008 at about 3:00 PM, when his brother Kamla Joshi and his son Rajesh Joshi son of Kamla Joshi were present in the shop, accused Mahesh Lodhi came drunk. When his brother asked Mahesh Lodhi (accused) to leave shop, he started abusing him. His brother Kamla Joshi objected him for abusing, then he picked up iron road (Sabbal) lying there and attacked Kamla Joshi on his head; due to which he sustained serious injuries on his head. On hearing shrieks of his brother Kamla Joshi, he (PW-1) and many persons reached there and saw incident and saved victim. Mahesh Lodhi fled away from spot. Victim Kamla Joshi was taken to hospital in Muskara for treatment after making arrangement. 4. On the basis of written report Ex.Ka-1, Chick F.I.R. Ex.Ka-2 was registered by PW-3 Lala Ram Yadav as Case Crime No.802 of 2008 against accused-appellant under Sections 308, 504 I.P.C. An entry was made in General Diary (hereinafter referred to as 'G.D.') copy whereof is Ex.Ka-3. 5. Immediately after registration of FIR, investigation was undertaken by PW-5 S.I. Mewalal Gupta, who took copies of written report and Chik FIR; went to the place of occurrence; recorded statements of witnesses Rajesh Joshi and one Veerpal; visited spot; prepared site plan Ex.Ka-11; and collected blood stained and simple earth; prepared memo Ex.Ka-13. 6. Victim breathed last in District Hospital Hamirpur. On information of death, case was converted under Section 304 and 504 I.P.C. by PW-3 vide G.D. No. 27, copy whereof is Ex.Ka-4. 7. 6. Victim breathed last in District Hospital Hamirpur. On information of death, case was converted under Section 304 and 504 I.P.C. by PW-3 vide G.D. No. 27, copy whereof is Ex.Ka-4. 7. Pw-6 Surya Pal Singh Chauhan, held inquest over the dead body; prepared panchayatnama, Ex.ka-14, and other necessary papers relating thereto and sent dead body for post mortem. 8. Pw-4 Dr. B.C. Pal, conducted autopsy over the dead body of Kamla and prepared postmortem report (Ex.Ka-5) under his signature, expressing his opinion that death was possible at about 6:10 PM on 26.9.2008 due to shock and haemorrhage on account of ante-mortem injuries and found following ante-mortem injuries :- (i) Incised wound 3.5 cm x 1.5 cm in left ear upper part edges are sharp. Margin regular. (ii) Incised wound 5.5 cm x 1 cm x brain deep in left parietal region of skull, 7 cm above the left ear. (iii) Lacerated wound 3 cm x 1 cm in right middle ear part cartilage broking. (iv) Contused swelling 5 x 3 cm right parietal region of skull. (v) Contusion 6 cm x 5 cm right upper part of face between ear and eye. 9. Pw-5, S.I. Mewalal Gupta, arrested accused on 30.9.2008, recorded his disclosure statement and recovered one tyre lever (Sabbal) allegedly used in commission of offence, at pointing out of accused from the bundle of woods near spot and one axe with blood from beneath of puliya before witnesses. Both the articles were properly sealed and Fard thereof was prepared as Ex.Ka-7 and 8, site plan of recovery Ex.Ka-16 was also prepared. After completing all formalities of investigation, PW-5 submitted charge sheet Ex.Ka-12 against accused-appellant under Section 304 and 504 I.P.C. 10. Case, being exclusively triable by Court of Sessions, was committed by Chief Judicial Magistrate to Court of Sessions for trial. 11. Trial Court framed charges against accused-appellant on 2.2.2009 under Sections 304 and 504 IPC to which accused denied and claimed trial. Case, being exclusively triable by Court of Sessions, was committed by Chief Judicial Magistrate to Court of Sessions for trial. 11. Trial Court framed charges against accused-appellant on 2.2.2009 under Sections 304 and 504 IPC to which accused denied and claimed trial. Charges read as under: vkjksi eSa] ,l0ds0flag] vij l= U;k;k/kh'k] U;k;ky; la[;k&4 gehjiqj vki vfHk;qDRk⪖'k yks/kh dks fuEufyf[kr vkjksi ls vkjksfir djrk gw¡& ;g fd fnukad 26-9-08 dks le; djhc 3 cts fnu lkbZfdy iapj dh nqdku ogn xzke fcgwuh [kqnZ vUrxZRk {ks=kf/kdkj iqfyl Fkkuk eqLdjk ftyk gehjiqj esa vkius oknh eqdnek 'kadj n;ky tks'kh ds HkkbZ deyk tks'kh ds flj ij lCCky ls okj fd;k] ftlls mls flj ij xEHkhj pksV vk;h ftlls mldh e`R;q gksuk laHkkO; Fkh vkSj vkids }kjk igaqpk;h x;h pksV ds dkj.k gh deyk tks'kh dh e`R;q fnukad 26-9-08 dks gh le; 6%10 cts 'kke dks gks x;hA blds }kjk vkius gR;k dh dksfV esa u vkus okyk vkijkf/kd ekuo&o/k fd;k] tks Hkkjrh; n.M lafgrk dh /kkjk 304 ds vUrxZRk n.Muh; vijk/k gS] ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA f}rh;& ;g fd mDRk frfFk] le; o LFkku ij vkius oknh ds HkkbZ deyk tks'kh dks cqjh cqjh xkfy;ka nsdj viekfur ,oa vfHkoLr fd;kA blds }kjk vkius ,slk dk;Z fd;k] tks Hkkjrh; n.M lafgrk dh /kkjk 504 ds vUrxZr n.Muh; vijk/k gS] ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA vkSj eSa ,rn~}kjk vkidks vkns'k nsrk gw¡ fd vkidk fopkj.k mDr vkjksiksa ds laca/k esa bl U;k;ky; }kjk fd;k tk;sA Charge I, S.K. Singh, Additional Sessions Judge, Court Number-4 Hamirpur charge you accused Mahesh Lodhi with the following charges :- That, on 26.09.08 at about 3 o'clock of the day, you assaulted on the head of Kamla Joshi- the brother of the complainant of case namely Shankar Dayal Joshi, by Sabbal at the Cycle Puncture Shop within village Bihuni Khurd falling under the jurisdiction of Police Station - Muskra, District - Hamirpur, due to which he sustained serious injuries on the head by which his death was likely to be caused and Kamla Joshi died on 26.09.08 itself at 6:10 o'clock in the evening due to that very injury caused by you. By this act you committed the culpable homicide not amounting to murder which is an offence punishable under Section 304 of the Indian Penal Code and this court has the jurisdiction to take cognizance whereof. By this act you committed the culpable homicide not amounting to murder which is an offence punishable under Section 304 of the Indian Penal Code and this court has the jurisdiction to take cognizance whereof. Second- That on the said date, place and time, you insulted and intimidated Kamla Joshi- the brother of complainant by hurling abuses on him. By this you committed such an act which is an offence punishable under Section 504 of the Indian Penal Code and this court has the jurisdiction to take cognizance whereof. I hereby direct that you be tried by this Court for aforesaid charges. (English Translation By Court) 12. Accused-Appellant denied the charges, pleaded not guilty and claimed to be tried. 13. In order to substantiate its case, prosecution examined as many as six witnesses out of whom PW-1 Shankar Dayal and PW-2 Rajesh are witnesses of fact. PW-3 Constable Lala Ram Yadav, PW-4 Dr. B.C. Pal, PW-5 S.I. Mewalal Gupta and PW-6 Inspector Surya Pal Singh Chauhan are formal witnesses. 14. Subsequent to closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and other incriminating circumstances. In the statement under Section 313 Cr.P.C., accused-appellant denied prosecution story in toto, all the facts are said to be wrong, witnesses are said to depose due to enmity and desired to produce defence evidence. Later on he did not produce any evidence, oral or documentary. 15. Trial Court after hearing learned counsel for the parties and appreciating entire evidence led by prosecution on record found accused-appellant guilty and convicted him as stated above. Feeling aggrieved and dissatisfied with impugned judgement and order of conviction, present appeal has been filed through Jail. 16. We have heard Sri Vinay Saran, learned Amicus Curiae appearing for appellant and Sri Rishi Chadha, learned A.G.A. for State-respondent at length and gone through the record carefully. 17. Learned counsel for appellant assailing impugned judgement and order of conviction of accused-appellant, advanced his submissions, in the following manners :- (i) PW-1 did not appear to be eye witness. PW-1 and 2 are relatives of deceased. PW-1 is real brother and PW-2 is son of deceased. (ii) As per F.I.R. victim is said to be assaulted with tyer lever (Sabbal) but in evidence after a due deliberation and illegal advice victim is said to have been attacked with axe. PW-1 and 2 are relatives of deceased. PW-1 is real brother and PW-2 is son of deceased. (ii) As per F.I.R. victim is said to be assaulted with tyer lever (Sabbal) but in evidence after a due deliberation and illegal advice victim is said to have been attacked with axe. (iii) Name of PW-2 is not mentioned in written report Ex.Ka-1. PW-2 has been introduced during investigation. (iv) Medical report is not compatible with oral version. (v) As per F.I.R. there is no strong motive to accused to commit the present crime. (vi) There are many contradiction in the statement of PW-1 and 2 rendering prosecution case doubtful. (vii) Prosecution could not succeed to prove its beyond reasonable reasonable doubt and Trial Court convicted the accused without proper appraisal of evidence. 18. Learned AGA for State opposed submissions advanced by learned Amicus Curiae and submitted that accused is named in F.I.R.; he has committed crime in day light, therefore, there was no problem to witnesses to identify accused; there was sufficient motive to accused-appellant to commit crime as borne out from the statements of witnesses. It is further submitted that medical evidence is completely compatible with the oral evidence. He sought dismissal of appeal. 19. Although, time, date, place and nature of injuries on the person of deceased and death of Kamla Joshi could not be disputed from the side of accused but according to Advocate, he is not responsible for causing death of Kamla Joshi. Even otherwise, from the statement of PW-1, 2, 4 and 6, aforesaid facts stand established. 20. Thus, only question remains for consideration of this Court is, "whether accused-appellant caused death of Kamla Joshi by inflicting injuries and Trial Court has rightly convicted him?" 21. Now we may proceed to consider rival submissions of respective parties and evidence of prosecution. 22. Pw-1 Shanker Dayal deposed that victime was his real younger brother and running shop of repair of puncture at road side in the village. On the fateful day, at about 10:00 PM, his younger brother was working in the shop. Rajesh son of Kamla Joshi, Mangal, Raghuvir and his wife were sitting there. Then accused-appellant, Mahesh Lodhi, came with axe in the shop and set on cot and started abusing. When his brother (victim) objected, Mahesh starting abusing. On the fateful day, at about 10:00 PM, his younger brother was working in the shop. Rajesh son of Kamla Joshi, Mangal, Raghuvir and his wife were sitting there. Then accused-appellant, Mahesh Lodhi, came with axe in the shop and set on cot and started abusing. When his brother (victim) objected, Mahesh starting abusing. Accused Mahesh then attacked twice upon Kamla Joshi with axe, who caught his axe; accused-appellant picked tyre lever lying there and inflicted thrice upon victim; they all rushed to rescue him; accused-appellant ran away with axe throwing tyre lever; victim received serious injuries; he was taken to hospital for treatment through Marshal car and Ex.Ka-1 came to be submitted in Police Station. It is further deposed by him that accused is man of criminal mentality, who committed murder of one Sripat Pal in which victim Kamla was witness against him and accused was inserting pressure on deceased not to give evidence. Victim Kamla succumbed to injuries in District Hospital, Hamirpur. 23. Pw-2 Rakesh, son of deceased, deposed that at about 3:00 PM on 26.9.2008, he was present with his father Kamla in the puncture shop. At that time, accused-appellant Mahesh came there and started abusing his father. When his father objected for abusing, accused-appellant assaulted his father with axe. Thereafter, he picked up tyer lever lying there and assaulted on the head of his father who received serious injuries and became unconscious. His father, in the injured position was taken to hospital, Muskara, by his uncle Shankar Dayal where-from due to serious condition he was referred to District Hospital, Hamirpur where his father died same day. 24. Pw-1 and 2 withstood lengthy cross-examination but unblemished and no material could be brought so as to disbelieve there testimony. In cross-examination, PW-2 categorically deposed that at the time of incident he was student of Class-IX in G.I.C. Muskara and on that very day he had not gone to school because his father was suffering from fever for two days, therefore, he did not go to school and stayed for supervision of shop. On the day of incident, his father did not go to Muskara for treatment. In this way PW-2 gave proper explanation for his presence in the shop at the time of incident. Since victim was suffering from fever for two days, presence of PW-2 was quite natural on the spot at the time of incident. 25. On the day of incident, his father did not go to Muskara for treatment. In this way PW-2 gave proper explanation for his presence in the shop at the time of incident. Since victim was suffering from fever for two days, presence of PW-2 was quite natural on the spot at the time of incident. 25. Pw.-4 Dr. B.C. Pal deposed that on 27.9.2008, he was posted at EMO in District Hospital Hamirpur. He conducted autopsy over the dead body of Kamla at 2:30 PM which was brought by constable Dhwankawan Prasad and H.C. Shiv Narain Lal in sealed position and found five ante-mortem injuries. 26. Doctor opined that ante-mortem injuries were possible to have occurred at 3:00 PM on 26.9.2008 and they might have been caused with tyre lever (Iron rod with edge). As per post mortem report, ante-mortem injury no. 1 and 2 are incised wound which may be caused by some edged weapon and rest injuries might have been caused by a blunt object. Weapon 'sabbal' and 'axe' both are capable to cause injuries as found on the person of deceased. 27. From perusal of statement of PW-1, 2 and 4, it is established that accused-appellant assaulted victim with axe and sabbal; caused serious injuries on head due to which he died at the time, date and place as stated by prosecution. Medical evidence is totally compatible with oral evidence. 28. So far as argument of learned counsel for appellant regarding relative witness is concerned, the submission is thoroughly misconceived. We are not convinced with the same. Mere relationship is not sufficient to discard otherwise trustworthy ocular testimony and it is now well settled law laid down in Dalip Singh v. State of Punjab, (1953) AIR SC 364 wherein Court has held :- "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. 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. 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." 29. In Dharnidhar v. State of U.P., (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" 30. 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 U.P., (2011) AIR SC 2292; and Dhari & Ors. 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 U.P., (2011) AIR SC 2292; and Dhari & Ors. v. State of U.P., (2013) AIR SC 308)." 31. It is settled that merely because witnesses are closed relatives of victim, 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 protect actual culprit and make allegations against an innocent person. However, in such a case Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible evidence. 32. So far as argument made by learned counsel for appellant regarding motive is concerned, we are not impressed with the submission advanced by learned counsel for appellant as 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 there was no strong motive to commit present offence, prosecution case cannot be disbelieved. However, even motive has been proved, PW-1 and 2 deposed that earlier accused-appellant had committed murder of Sripat Pal in which victim was witness of incident and accused was pressuring victim not to give evidence. 33. 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." 34. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case and accused-appellant are not entitled to get benefit of the same. 35. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case and accused-appellant are not entitled to get benefit of the same. 35. 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. 36. 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 the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018. 37. Considering the entire facts and circumstances of the case, statement of witnesses, evidence of prosecution into entirety and legal proposition discussed herein before, we have no hesitation in holding that accused-appellant caused death of Kamla Joshi by causing head injuries, an offence punishable under Section 304 Part (1) I.P.C. Trial Court has rightly convicted accused-appellant under the aforesaid section, therefore, conviction of accused appellant under Section 304 Part (1) I.P.C. is maintained and confirmed. Criminal appeal lacks merit and liable to be dismissed on merit. 38. 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. 39. 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 marginalised. The measure of punishment should be proportionate to gravity of offence. 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 marginalised. 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. 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 ]. 40. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence and manner in which it was executed or committed, we partly allow this appeal. and confirm appellant's conviction under Section 304 Party (1) I.P.C. but modify sentence to under go rigorous imprisonment for a period of 14 years and fine of Rs.25,000/-. In default of payment of fine, he shall further undergo simple imprisonment for six month. 41. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action and to apprise the accused-appellant through Jail Authority. 42. Before parting, we provide that Sri Vinay Saran, Amicus Curiae, appearing for appellant in present Jail Appeal, shall be paid counsel's fee as Rs.15,000/- for his valuable assistance. 42. Before parting, we provide that Sri Vinay Saran, Amicus Curiae, appearing for appellant in present Jail Appeal, shall be paid counsel's fee as Rs.15,000/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.