JUDGMENT : 1. This criminal appeal has been preferred by appellants against the judgment and order dated 27.04.1991, passed by 4th Additional Sessions Judge, Fatehpur, in S.T. No. 439 of 1989 (State Vs. Ram Swaroop and another), in which the appellant was convicted under Section 304/34, each of them sentenced to undergo rigorous imprisonment for five years, 2 years R.I. under section 325/34 IPC. Both the sentence shall run concurrently 2. Brief facts of this case are as follows:- 3. The informant Amar Singh lodged the NCR in P.S. Lalauli, District Fatehpur with the allegation that on 14.06.1989 at about 5.30 p.m. Smt. Sudamiya wife of first informant was sitting along with deceased Shiv Nandan at the door of her house. All the 4 appellants/accused having armed with lathi and danda reached there and due to some altercation between the appellants and the deceased, the appellants assaulted Shiv Nandan with lathi and danda. Sudamiya tried to save her brother Shiv Nandan then she was also beaten by the accused appellants. Due to which Smt. Sudamiya and Shiv Nandan received injuries and also stated in NCR that there is litigation between the appellants and first informant regarding some land dispute and due to this reason the appellants assaulted both Smt. Sudamiya and Shiv Nandan. The informant lodged oral report at about 10.30 p.m., it was recorded as NCR No. 44, under sections 323 IPC, which is proved as Ext. Ka 1. Sudamiya and Shiv Nandan, who were medically examined at PHC Bahuwa and Shiv Nandan succumbed due to his injury at PHC Bahuwa on 15.06.1989 at midnight afterward the NCR was converted into under section 302 IPC a cognizable offence by means of GD No. 22 time 14.45 on 15.06.1989 as Ext. Ka-4. 4. Investigation of this case was entrusted to the Investigating Officer. 5. Before the case was converted under section 302 IPC, Sub Inspector M.P. Singh prepared inquest report of the deceased Shiv Nandan and the dead body was sent to District Hospital Fatehpur, for autopsy and the same was done by Dr. M.N. Raizada. 6. Sudamiya was medically examined in PHC Bahuwa. Lower part of the shaft of radius and ulna of injured Sudamiya was found fractured on X-ray. Then one more section 325 IPC was added. 7. M.N. Raizada. 6. Sudamiya was medically examined in PHC Bahuwa. Lower part of the shaft of radius and ulna of injured Sudamiya was found fractured on X-ray. Then one more section 325 IPC was added. 7. Investigation of this case was handed over to Sri Siraj Ahmad, Investigating Officer, and during investigation Siraj Ahmad prepared site plan on pointing out of the first informant, which is proved as Ext. Ka-8 and after recording the evidence of witnesses plain earth and blood stained earth were recovered, which is Ext. Ka-9. After recording the statements of witnesses and completing formalities of the investigation, Investigating Officer has submitted charge-sheet against appellants under section 302/34 and 325 IPC. 8. All the four accused-appellants were charged under sections 302/34, 323/34 and 325/34, which was framed on 22.09.1989 and were read over to accused. They pleaded not guilty and claimed to be tried. 9. In order to substantiate the charge levelled against the appellants, prosecution examined P.W. 1 Amar Singh, complainant/first informant who reported himself to be as eyewitness and proved NCR as Ext. Ka 1. P.W. 2 Ram Prasad, he himself reported to be as eyewitness and P.W. 3 Constable Brajlal Pandey, who proved the GD entry No. 28 10:30 on 14.06.89 regarding lodging of the NCR as Ext. Ka-3. P.W. 3 has also proved the GD Rapat No. 10 time 10:30 on 15.06.1989, the memo sent to PHC Bahuwa regarding death of the deceased Shiv Nandan and proved this GD as Ext. Ka 3 and it was also proved the conversion GD Sl. No. 20 time 14.45 dated 15.06.1989 as Ext. Ka. 5. P.W. 4 is Sudamia injured eyewitness, P.W. 5 Dr. M.H. Khan, who prepared the X-ray report of injured Sudamiya and proved X-ray report as Ext. Ka 5. P.W. 6 Dr. B. Kumar Pateria, who examined the deceased Shiv Nandan in PHC Bahuwa and proved injury report as Ext. Ka-6 and P.W. 7 is the investigating officer, who proved the site plan Ext. Ka 8 and recovery memo of blood stained and simple earth Ext. Ka-9 and charge-sheet Ext. Ka-10. Other papers of the prosecution was admitted by the defence counsel under Section 294 Cr.P.C. Panchayatnama as Ext. Ka-11, letter to CMO Ext. Ka12, Photo nash Ext. Ka 13, letter of R.I. Ext. Ka-14, report of P.S. Lalauli Ext. Ka 15, Specimen seal Ext. Ka-9 and charge-sheet Ext. Ka-10. Other papers of the prosecution was admitted by the defence counsel under Section 294 Cr.P.C. Panchayatnama as Ext. Ka-11, letter to CMO Ext. Ka12, Photo nash Ext. Ka 13, letter of R.I. Ext. Ka-14, report of P.S. Lalauli Ext. Ka 15, Specimen seal Ext. Ka 16, letter of Medical Officer to S.O. Lalauli regarding information of death of Shiv Nandan as Ext. Ka-17, letter of Medical Officer regarding handing over the dead body Ext. Ka-18, Injury report of injured Sudamiya Ext. Ka-19 and supplementary injury report Ext. Ka-20. 10. In this case, the prosecution relied the evidence of P.W. 1 to P.W. 7 and Ext. Ka-1 to Ext. Ka-10. After examination of all the witnesses the accused-appellants were examined under Section 313 Cr.P.C. and stated that their false implication due to enmity. They denied the prosecution evidence. 11. No defence witness has been examined by the defence. 12. After conclusion of trial, learned trial court convicted the appellants as aforesaid. During trial the appellant no 1 Ram Swaroop and appellant no. 4 Chandra Sewak reported to be no more and the appeal stands abated against appellant nos. 1 and 4. 13. Heard learned counsel for the appellants, learned A.G.A and perused the record. 14. Learned counsel for the appellants submitted that time of incident is 5.30 p.m. but NCR was lodged at 10.30 p.m. on 14.06.1989. There are five hours delay for lodging the NCR and the delay has not been explained which creates doubt in the prosecution story, it cannot be ruled out that the FIR lodged against the appellants with due deliberation and fabrication. 15. It is also submitted by learned counsel for the appellants that only the interested and related witnesses produced by the prosecution. P.W. 1 is the husband of injured Sudamiya P.W. 3 and brother in-law of the deceased Shiv Nandan. P.W. 2 is the interested witness as the litigation pending between P.W. 2 and appellants and no independent witnesses is produced by the prosecution, so no reliance can be placed on the evidence of interested and relative witnesses. 16. Next submission is that place of occurrence is not intact although blood stained and plain earth were taken by the Investigating Officer, but the same was not sent for Senologist examination, so the prosecution failed to establish the place of occurrence. 16. Next submission is that place of occurrence is not intact although blood stained and plain earth were taken by the Investigating Officer, but the same was not sent for Senologist examination, so the prosecution failed to establish the place of occurrence. It is also submitted that the complainant P.W. 1 was examined by the prosecution as eyewitness. If P.W. 1 had seen the occurrence and he was present at the place of occurrence, than naturally he should also suffered injures, so the presence of P.W. 1 at the place of occurrence is highly doubtful. So, no reliance can be placed on the evidence adduced by P.W. 1, hence the evidence led by P.W. 1 is fabricated and manufactured. 17. It is also submitted that injured witness P.W. 4 Sudamiya in her statement clearly stated that apart from convicted accused, two others accused namely Daya Shankar and Rama Shankar have also participated in this crime and beaten the injured, but Daya Shankar and Rama Shankar were not named in the FIR, so the whole prosecution story is doubtful. It is further submitted that deceased Shiv Nandan, when he reached to the police station, he was in conscious position, but there is no dying declaration. 18. Lastly, learned counsel for the appellants submitted that the date of incident was 14.06.1989 and more than 31 years have been elapsed and in such a long time no useful purpose would be served, if the surviving appellants again sent to jail to serve out the sentence. Regarding these, it is requested that quantum of sentence be reduced as period already undergone, learned counsel for the appellants has relied upon the following judgment:- 1. Rajendrar Harakchand Bhandari and others vs. State of Maharashtra and another (2011) 13 SCC 311 , in which the Hon’ble Apex has held that; “………………..The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants’ surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two-and-a-half years. Having regard to these circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine”. 2. The appellants have already undergone the sentence of more than two-and-a-half years. Having regard to these circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine”. 2. Badal Murmu and others vs. State of West Bengal (2014) 3 SCC 366 , in which Hon’ble Apex Court converted the case from under Section 302 read with section 149 IPC to Section 304 Part II read with Section 149 IPC awarded the sentence of 14 years to meet the ends of justice. 3. Pritam Singh vs. State of Delhi 1995 0 Supreme (Del) 347 in Delhi High Court “the conviction of the appellant converted from Section 307 IPC to Section 326 IPC. Considering the age of the appellant on the date of occurrence and looking into circumstance in which offence committed and the nature of injury caused to the victim, Delhi High Court sentenced the appellant is reduced to the sentence already undergone. 19. Learned AGA vehemently opposed and submitted that the witnesses produced by the prosecution clearly established the case against the appellants. It is also submitted that P.W. 1 was present on the spot, but he could not save the deceased as well as his wife, P.W. 4. On this basis that P.W. 1 had not received injuries it cannot be said that he was not present on the spot. It is also submitted that there is no delay in lodging the NCR, because first of all, after the incident the injured P.W. 4 Sudamiya and deceased Shiv Nandan were brought to the hospital for treatment. After admitting the injured and deceased to the PHC Bahuwa, the complainant P.W. 1 went to police station for lodging the report, so in this case the delay is clearly explained and no doubt could be raised for delay in lodging the NCR. It is also submitted that oral evidence of P.W. 1 complainant, P.W. 2 Ram Prasad eyewitness and P.W.4 Sudamiya have clearly established the prosecution version and oral evidence of these witnesses have fully corroborated by medical evidence and the prosecution has established the case beyond shadow of doubt against the appellants and as such the appeal is liable to be dismissed. 20. 20. Learned AGA has submitted that so far as the reduction of sentence is concerned in this case, P.W. 4 got grievous injury and the appellants have common intention allegedly commit the murder of Shiv Nandan by means of lathi and danda, so learned trial court already show the leniency while sentencing the appellants for 5 years rigorous imprisonment under section 304 part II. 21. In these circumstances, there is no occasion to reduce the sentence already undergone by the appellants and case law cited by the appellants is not applicable in present case. 22. In this case, prosecution has examined 7 witnesses the first of all, I discussed the statement of Dr. M.H. Khan, P.W.5. He has stated in his statement that on 19.06,1989, he was posted in the District Hospital Fatehpur. As per X-ray report of Smt. Sudamiya shaft of radius and ulna bone of lower part was fractured and advised X-ray report, which is proved as Ext. Ka-5. Dr. M.H. Khan opined that injury was grievous in nature. This witness has also proved the autopsy report of the deceased Shiv Nandan as Ext. Ka-6, by adducing secondary evidence which is prepared by Dr. Raizada, who reported to be no more at the time of examination of P.W. 5. 23. P.W. 6 Dr. B. Kumar Pateria has stated that on 14.06.1989 he was posted as Medical Officer In charge at PHC Bahuwa, at about 9.00 p.m. he examined Shiv Nandan and found the following injury:- 1. Lacerated wound 2cmx 2cm x muscle deep on the right side of forehead. 2. Lacerated wound 6cm x ½ cm. X skin deep on the right side of vertebrae of skull. 3. Lacerated wound 6cm x 1cm x muscle deep on the occipital region of skull. 4. Contusion 7cm x 2-½ cm. On the right side of chest 7cm below right nipple. 5. Contusion 8cm x 3cm on the lateral side on the middle right forearm. 6. Abrasion 1cm x 1 cm. On the right elbow joi8nt, backside. 7. Contusion 8cm x 3cm on the right upper arm on the outer side. 8. Contusion 7cm x 4cm on the back side of right portion of abdomen. 9. Abrasion 3cm x 2cm on the back side of the right chest. 10. Contusion 6cm x 3cm on the outer side of right thigh. 11. Contusion 3cm x 2-½ cm. 7. Contusion 8cm x 3cm on the right upper arm on the outer side. 8. Contusion 7cm x 4cm on the back side of right portion of abdomen. 9. Abrasion 3cm x 2cm on the back side of the right chest. 10. Contusion 6cm x 3cm on the outer side of right thigh. 11. Contusion 3cm x 2-½ cm. On right side thigh, 9cm above the right knee joint on the front side. 12. Abrasion 3m x 2-½ cm on the front of left thigh. Injury nos. 1, 2 and 3 under observation and advised X-ray and rest injury are simple in nature. All the injury were caused by hard and blunt weapon like lathi and danda. Injury report Ext. Ka 9. 24. This witness has further stated that the deceased died about 12.15 midnight. 25. Injury report of P.W. 4 Sudamiya was admitted by appellant counsel during trial under section 294 Cr.P.C. as Ext. Ka-19. 26. So far as the first contention of the appellants is that the occurrence has taken place on 14.06.1989 at about 5.30 p.m. and NCR was lodged on 14.06.1989 at about 10.30 p.m. in P.S. Lalauli, District Fatehpur, so the FIR was lodged against the appellants about 5 hours delay, which is not at all explained by the first informant for delay in lodging the FIR. The delay in lodging the FIR given rise to the fact that the appellants have been falsely implicated in this case. 27. Learned AGA has submitted that the delay in lodging the FIR is clearly explained by the first informant. P.W.1 first informant, is villagers and rustic person and after the incident, first informant manage the conveyance and reached to the hospital for medical treatment to injured Sudamiya and Shiv Nandan and thereafter, he reached to the police station Lalauli for lodging the FIR. There are many factors which have been taken into consideration while looking into the factum of delay in lodging the FIR in police station Lalauli. It is true that court has duty to take notice of delay and examined the same in a backdrop of a factual score whether there is any expectable explanation offered by the prosecution but when delay is satisfactorily explained no adverse inference is to be drawn. It is to be seen whether there has been possibility of embellishment in the prosecution version on account of such delay. 28. It is to be seen whether there has been possibility of embellishment in the prosecution version on account of such delay. 28. In this connection it will be useful to take note of the following observation made by Apex Court in Tara Singh & Ors. v. State of Punjab, AIR 1991 SC 63 : "The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case." 29. Thus delay in lodging F.I.R. has been very satisfactorily and reasonably explained which has also been discussed by trial court and in this case delay is not at all fatal for prosecution case. It cannot be said that delay in lodging the FIR adversely effected the appellants. 30. One of the argument is that only interested and related witnesses were examined by the prosecution. It is well settled that the evidence of interested witnesses cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. 30. One of the argument is that only interested and related witnesses were examined by the prosecution. It is well settled that the evidence of interested witnesses cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. Evidence of interested witnesses cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. There is no proposition in law that relatives are to be treated as untruthful witnesses. In view of the evidence on record, the evidence of PW 1 can not be disbelieved on ground that he is brother in law of the deceased. P.W. 1 is natural witness whose presence on the place of occurrence is fully established. Contention of learned counsel for the appellants is that if, P.W. 1 was present on the spot, he also received injury. P.W. 2 Ram Prasad and P.W. 4 Sudamiya have categorically stated in their statements that P.W. 1 immediately came on the place of occurrence at the time of incident. In case, the circumstances relates that the witness was present and had witnessed the entire episode and his deposition cannot be discarded merely on the ground of being closely related to the victim and they shield the actual culprit and unlikely to falsely implicate the appellants. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spear the real culprit and falsely implicate an innocent person is alleged and proved. 1. In State of Punjab Vs Hardam Singh, 2005 S.C.C. (Cr.) 834, it has been held by the Hon'ble Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. 2. Hon'ble Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 . The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. 31. 2. Hon'ble Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 . The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. 31. On considering the Apex Court law it is clear that presence of P.W. 2 Ram Prasad and P.W. 4 Sudamiya, injured witness, is quite natural and there is no reason to false implication of the appellants in this case and their evidence suffers no infirmity and learned trial court has appreciated the evidence and rightly recorded the finding against the appellants. 32. One of the submission of learned counsel for the appellants is that the place of occurrence is not intact, because the plain earth and blood stained were recovered which is proved by P.W. 7 Investigating Officer, but the same has not been sent for chemical examination by the prosecution. 33. Learned AGA has submitted that the defence counsel has neither controverted the execution of Ext Ka 9 by adducing evidence during trial, nor any suggestion raised on behalf of defence that the place of occurrence is not intact and doubtful, witness of fact P.W 1, P.W. 2 and P.W. 4 have clearly established the place of occurrence. 34. One of the argument of learned counsel for the appellants is that no weapon of offence as lathi and danda has been recovered. It would be relevant to mention that recovery of weapon might have further strengthen the prosecution case but it is not sine qua non for sustaining conviction. In fact it was the duty of the Investigating Officer to recover the weapons used in the incident. If there is any laxity on the part of the investigating officer in this regard, it can not be ground to doubt the testimony of PW 1, PW 2 and P.W. 4 which is clear and cogent. The consistent and reliable testimony of witnesses can not be disbelieved merely on the ground that the recovery of weapons has not been made, particularly when evidence clearly suggests that the injuries sustained by the deceased were caused by the weapons attributed to the accused persons. 35. The consistent and reliable testimony of witnesses can not be disbelieved merely on the ground that the recovery of weapons has not been made, particularly when evidence clearly suggests that the injuries sustained by the deceased were caused by the weapons attributed to the accused persons. 35. On perusal of evidence of the witnesses of fact it transpires that the oral evidence is duly corroborated with medical evidence. There is no major contradiction in the statements of the witnesses, prosecution is fully proved his case beyond shadow of doubt hence the learned trial court has rightly appreciating each aspect of the case so finding of conviction of the appellants under section 304 part II and 325/34 IPC hereby affirmed. 36. Last argument raised by learned counsel for the appellants is that the incident in question took place on a sudden fight without any premeditation and the act of the appellants hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner and the weapon used was not lethal. It is also not clear that out of four accused, who were responsible to commit fatal injury on the deceased and grievous injury to Sudamiya (P.W.4). Only general role has been assigned against the appellants. It is also submitted that more that 31 years has already been elapsed and two named appellants Ram Swaroop and Chandra Sevak died during pendency of appeal. Presently only appellants Umashankar and Kripashankar are surviving appellants. It has been claimed that appellant Umashankar presently around 67 years old and Kripashankar is about 61 years. Presently both the appellants are well rooted in society, submitted that no useful purpose would be served if the surviving appellants again sent into jail to serve out the remaining part of the sentence. 37. Considering the entire facts and circumstances of the case, appellants presently senior citizen and there is no specific proof that the fatal blow was inflicted by appellants. The sentence so awarded by the trial court under section 304 part II appears to be harsh under these circumstances and the same may be reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment as that would meet the end of justice. 38. Accordingly appeal against both the appellants on point of conviction is hereby dismissed but partly allowed. 38. Accordingly appeal against both the appellants on point of conviction is hereby dismissed but partly allowed. Only on point of quantum of sentence, sentence under section 304 part II IPC sentence of 5 years rigorous imprisonment modified to 3 years rigorous imprisonment. Sentence part under section 325/34 IPC shall remain unaltered. Both the sentence shall run concurrently. The period spent by appellants in jail shall be set off from this sentence. 39. The appellants are on bail. Their bail bonds stand cancelled. They are directed to surrender within four weeks to serve out the remaining period of sentence. 40. Consequently, the instant appeal is allowed partly on above term. 41. Let a copy of this order/judgment be certified to the court below for necessary information and ensuring compliance within 2 months under intimation to this Court.