JUDGMENT : Virendra Kumar Srivastava, J. 1. The instant criminal appeal has been filed under Section 374 (2) of Criminal Procedure Code (hereinafter referred as "Code") against the judgment and order dated 4.12.2009, passed by Additional Sessions Judge/Fast Track Court No. 7, District Pratapgarh in S.T. No. 125 of 2005 arising out of Crime No. 410 of 2001 (State of U.P. vs. Rais Shekh), under Sections 323, 504, 308, 304 I.P.C. and Section 3 (2) (5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as "S.C./S.T. Act") P.S. Kotwali Nagar, District Pratapgarh whereby the accused-appellant (hereinafter referred as “appellant”) has been convicted and sentenced for offence under Section 304 II I.P.C. for 5 years rigorous imprisonment and fine of Rs. 5,000/-in default whereof, he has to undergo for six months additional imprisonment. 2. The prosecution case, in brief, is that Vinod Kumar (PW-3), S/o Ram Kumar Saroj, R/o Devkali, District Pratapgarh, filed a written information (Ex.Ka2) at P.S. Kotwali Nagar, District Pratapgarh on 25.06.2001 at about 9:30 p.m., alleging that he, Anand @ Bachha Harijan (hereinafter referred to as deceased), Ashok Kumar (PW-9), Dinesh (PW-6), Harikesh, Ramu and Dileep (PW-5) were taking a cup of tea at the tea stall of Ayub @ Bachai (PW-1), situated nearby Rakesh Auto Service Station, Pitai Ka Purva Purey Nursing Bhan at about 2:30 p.m. Meanwhile, appellant-Rais Shekh, whose electronic shop was situated at Jhoghapur, came by bicycle, to have a cup of tea and started to pass some sledging remarks (majaak) on deceased which took place into a hot talk and abusive words (gaali-galauj) between them. It is further stated that all the persons present at the place of occurrence, tried to intervene but the appellant took a bamboo stick from the hut of tea stall and caused injuries on the head of the deceased. Deceased was immediately carried to Civil Hospital, Pratapgarh wherefrom he was referred to Swarooprani Nehru Hospital, Allahabad. It is further mentioned that the appellant fled away from the place of occurrence by leaving his bicycle on the spot. 3. Deceased was immediately carried to Civil Hospital, Pratapgarh wherefrom he was referred to Swarooprani Nehru Hospital, Allahabad. It is further mentioned that the appellant fled away from the place of occurrence by leaving his bicycle on the spot. 3. The aforesaid information was entered into Police G.D. Report (Ex.Ka-7) and the First Information Report (Chik Report) (Ex.Ka-6) was lodged as Crime No. 410/2001, under Sections 323, 504, 308 I.P.C. and Section 3 (1) (10) S.C./S.T. Act, by Constable Moharir Ram Bahadur Yadav and the investigation of the case was handed over to Dy.S.P. Sri Neeraj Kumar Pandey (PW-10). 4. Dr. C.P. Verma (PW-8), posted as Emergency Medical officer at Civil Hospital, Pratapgarh, examined the deceased who was brought before him by Ashok Kumar (PW-9), on 25.6.2001 at about 3:00 p.m. and noted the following injuries on his body:- (a) lacerated wound 6.5 c.m. x 1.2 c.m. x bone deep on the left side of head 6 c.m. above the ear and bleeding was also present. (b) bleeding from left ear. 5. The deceased was advised for x-ray and admitted in hospital in a serious condition. According to this witness (PW-8), all the injuries of the deceased were fresh and caused by any blunt object. 6. During medical treatment, deceased was referred to Swarooprani Nehru Hospital, Allahabad where he died on 30.06.2001. The death information report was sent to Kotwali Police, Allahabad. The inquest of the deceased was conducted by S.I. S.K. Mishra who after preparing the relevant police papers, sealed the dead body of the deceased and sent it to District Hospital, Allahabad for post-mortem examination. 7. Dr. R.P. Singh (PW-11), on 1.7.2001 at about 4:30 p.m., conducted the post-mortem examination of the dead body of the deceased-Anand @ Bachha Harijan and prepared the post-mortem report (Ex.Ka-9) by noting the following ante-mortem injuries on the body of the deceased:- (i) Surgically stitched wound size 9 inch in length semi lunar in shape, 3 inch above left ear on the left side of the head. (ii) Surgically stitched wound of size 10 inch in length on the right side of head, 3 1/2 inch above right ear on the right side of the head. (iii) Contusion 3 c.m. x 1 c.m. present on the lower part of the right side chest. 8. In addition to above, he (PW-11) found that trachea stomy tube and urinary catheter were also present. (iii) Contusion 3 c.m. x 1 c.m. present on the lower part of the right side chest. 8. In addition to above, he (PW-11) found that trachea stomy tube and urinary catheter were also present. Both side of temporal bones were fractured, brain was lacerated and clotted blood was present and bladder including intestine were empty. According to this witness, the deceased had died on 30.6.2001 at 10:45 a.m. at Swarooprani Hospital, Allahabad, due to coma as result of ante-mortem injury to brain. 9. During investigation, on the basis of inquest report and postmortem report, the death information report of deceased was entered in the G.D. (Ex.Ka-8) on 20.7.2001 and the offence under Section 304 I.P.C. was added. 10. Dy.S.P. Neeraj Kumar Pandey, PW-10 (Investigating Officer) inspected the place of occurrence, prepared site plan (Ex.Ka-4), took the bamboo stick (thunni) used in causing injury, prepared recovery memo (Ex.Ka-1), recorded the statements of the witnesses and filed a charge-sheet (Ex.Ka-5), under Section 323, 504, 308, 304 I.P.C. and Section 3 (2) (5) S.C./S.T. Act, against the appellant, before the Chief Judicial Magistrate, Pratapgarh who after providing the copy of relevant police papers to appellant, committed the case for trial to Court of Sessions, Pratapgarh as the case was exclusively triable by Court of Sessions. 11. Appellant, his counsel and counsel appearing for the State were heard on the point of charge. The charges, under Section 323, 504, 308, 304 I.P.C. and Section 3 (2) (5) S.C./S.T. Act, were framed against the appellant to which he denied and claimed to be tried. 12. The prosecution, in order to prove its case, has produced Mohd. Ayub @ Bachai (PW-1), Baladeen Prajapati (PW-2), Vinod Kumar (PW-3), Ramu Vishwakarma (PW-4), Dileep (PW-5), Dinesh (PW-6), Ram Lotan (PW-7), Dr. C.P. Verma (PW-8), Ashok Kumar (PW-9), Dy.S.P. Neeraj Kumar Pandey (PW-10) and R.P. Singh (PW-11), wherein, PW-1 to PW-7 and PW-9 are witnesses of fact whereas PW8, PW-10 and PW-11 are formal witnesses. 13. After conclusion of prosecution witnesses, the statement of appellant was recorded under Section 313 of the Code wherein he, denying the prosecution evidence, stated that he was innocent and had been falsely implicated. 13. After conclusion of prosecution witnesses, the statement of appellant was recorded under Section 313 of the Code wherein he, denying the prosecution evidence, stated that he was innocent and had been falsely implicated. He further stated that the deceased was a motor mechanic and was performing his duty at the time of occurrence by using hydraulic jack but due to slip of jack, severe head injury was caused to the deceased whereby he died. 14. In defence, to rebut the prosecution evidence, S.B. Shukla (DW-1), Pharmacist, District Hospital, Pratapgarh, has been produced by the appellant who has stated that on 25.6.2001, at about 3:00 p.m., injured Anand (deceased) was brought at District Hospital, Pratapgarh for treatment by Ashok Kumar (PW-9) and injuries of deceased had been noted at page no. 20 of Accidental Medical Register. Stating that injuries of accident cases is entered in Accidental Medical Register, he proved photo copy of medico legal injury report of deceased (Ex.Kha.1). 15. Learned trial Court, after conclusion of trial, convicted the appellant for the offence under Section 304-II I.P.C. by acquitting him for offence U/s 323, 504, 308 I.P.C. and Section 3 (2) (5) S.C./S.T. Act, vide impugned judgment and order. 16. Aggrieved by the said judgment, the instant appeal has been preferred. 17. Heard Sri Shankar Lal Pandey, learned counsel for the appellant and Sri Dhananjai Kumar Singh, learned A.G.A. for the State and peruse the record. 18. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated in this case. Learned counsel further submitted that the deceased was a mechanic in Rakesh Auto Service Station, he had received fatal injury on his head due to slip of hydraulic jack because his injury was noted in Accidental Medical Register, maintained at District Hospital, Pratapgarh where the deceased was immediately carried after the accident. Learned counsel further submitted that all the independent witnesses have not supported the prosecution story and PW-1 to PW7 have been declared, by the prosecution, as hostile. Learned counsel further submitted that the statement of PW-9 Ashok Kumar is not reliable as he is the cousin of deceased and his presence at the time of occurrence is not natural. Learned counsel further submitted that all the independent witnesses have not supported the prosecution story and PW-1 to PW7 have been declared, by the prosecution, as hostile. Learned counsel further submitted that the statement of PW-9 Ashok Kumar is not reliable as he is the cousin of deceased and his presence at the time of occurrence is not natural. Learned counsel further submitted that the learned trial Court, without applying its judicial mind and considering the evidence available on record, has illegally convicted and sentenced the appellant vide impugned judgment and order which is illegal, against the settled principle of criminal jurisprudence and is liable to be set aside. 19. Learned counsel also submitted that though the appellant is innocent having no criminal history, if it is found that the appellant is guilty, a lenient view is required to be adopted in this case in view of the nature of offence as well as the said offence was happened before twenty years. 20. Per-contra, learned A.G.A. vehemently opposing the submission made by learned counsel for the appellant, submitted that the learned trial Judge has not committed any illegality or irregularity in the aforesaid judgment and order. Learned A.G.A. further submitted that only on the account that PW-1 to PW-7 have not supported the prosecution story on some fact, their whole evidence cannot be brushed aside. Learned A.G.A. further submitted that these witnesses have supported the prosecution story on the point of the date, time, place of occurrence and nature of injury and other relevant aspect of the prosecution story. Learned A.G.A. further submitted that the presence of PW-9 Ashok Kumar at the time of occurrence is natural and probable. He (PW-9) is named in the first information report and also had carried the injured from the place of occurrence to the hospital. Learned counsel further submitted that the evidence of PW-9, Ashok Kumar cannot be treated as unreliable only on the ground that he is relative of the deceased. Learned A.G.A. further submitted that neither any delay has been caused in lodging the first information report nor in medico legal examination. The ocular evidence is also supported and corroborated with the medical evidence. Learned A.G.A. further submitted that neither any delay has been caused in lodging the first information report nor in medico legal examination. The ocular evidence is also supported and corroborated with the medical evidence. Learned A.G.A. further submitted that defence story put up by the appellant that deceased had received injury in accident due to slip of hydraulic jack, is wholly unreliable, as no eye witness has been produced by the appellant to prove this fact. Learned A.G.A. further submitted that the prosecution has successfully proved its case beyond reasonable doubt against the appellant; the impugned judgment and order is liable to be confirmed and the instant appeal is liable to be dismissed. 21. I have considered the rival submission made by learned counsel for the parties and peruse the record. 22. Admittedly, the occurrence was happened on 25.6.2001 at about 2: 30 p.m. and just after the occurrence the deceased was carried to District Hospital, Pratapgarh wherefrom he was referred to Allahabad and died during medical treatment. Vinod Kumar (PW-3) who lodged the first information report, has specifically stated that the said occurrence was happened in his presence and after the occurrence, he along with other person, present at the place of occurrence, had taken away the deceased to District Hospital, Pratapgarh and wherefrom he was referred to Swarooprani Hospital, Allahabad. In first information report (Ex.Ka.2), this fact has been elaborately mentioned by him (PW-3). 23. So far as the submission of the learned counsel for the appellant that all the independent prosecution witnesses (PW-1 to PW-7) have not supported the prosecution story and have been declared hostile by the prosecution whereas the statement of Ashok Kumar (PW-9) is not reliable as he is kith and kin of the deceased, is concerned, it is settled principle of law of criminal jurisprudence that the statement of independent witnesses, produced by the prosecution, cannot be thrown out only on the account that they had been declared by the prosecution as hostile. The statement of hostile witnesses can also be taken into account to that extent to which it supports the prosecution. The statement of hostile witnesses can also be taken into account to that extent to which it supports the prosecution. Similarly, the evidence of the relatives also cannot be held as unreliable only on the ground that they are related to the deceased, if their presence at the time of occurrence are natural and reliable and their statement are reliable and trustworthy, in the facts and circumstances of the case and if it is so alleged by the defence, the defence has to show that why the relative witnesses are telling a lie or falsely implicating the accused-appellant by leaving aside the real culprit. 24. The tendency of witnesses to become hostile to the prosecution story, has become a cancer to the criminal administration of justice. It has been seen in most cases that the prosecution witnesses do not prefer to support the prosecution case because they prefer to avoid or attend the court proceeding as well as to take enmity with the accused and in some cases, they do not support the prosecution case either on the account of threat or allurement given by the accused person. Hon'ble Supreme Court in State through P.S. Lodhi Colony New Delhi vs. Sanjeev Nanda 2012 Cr.L.J. 4174 while expressing its concern on the tendency of hostility and value of evidence of hostile witnesses, relying on law laid down in State of U.P. vs. Ramesh Prasad Mishra and another AIR 1996 SC 2766 and K. Anbazhagan vs. Superintendent of Police and another AIR 2004 SC 524 has held as under:- "87. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people’s faith in the system. This court in State of U.P. v. Ramesh Mishra and Anr. This court in State of U.P. v. Ramesh Mishra and Anr. [ AIR 1996 SC 2766 ] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. [ AIR 2004 SC 524 ], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty." 25. In Ramesh Vs. State of Haryana (2017) 1 SCC 529 again Hon'ble Supreme Court, while taking notice the culture of compromise in criminal cases and tendency of witnesses turning hostile has held, as under:- "39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. 40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar, this Court observed as under: “31. It is also possible that witnesses are corrupted with monetary considerations. 40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar, this Court observed as under: “31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.” 41. Likewise, in Zahira Habibullah v. State of Gujarat, this Court highlighted the problem with following observations: “40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer… there comes the need for protecting the witnesses. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer… there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery. 41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the “TADA Act”) have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.” 42. Likewise, in Sakshi v. Union of India, the menace of witnesses turning hostile was again described in the following words: “32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. Likewise, in Sakshi v. Union of India, the menace of witnesses turning hostile was again described in the following words: “32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC.” 43. In State v. Sanjeev Nanda[10], the Court felt constrained in reiterating the growing disturbing trend: “99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people’s faith in the system. 100. This court in State of U.P. v. Ramesh Mishra and Anr. 100. This court in State of U.P. v. Ramesh Mishra and Anr. [ AIR 1996 SC 2766 ] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr., ( AIR 2004 SC 524 ), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty. 101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat, AIR 2006 SC 1367 , had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked.” 44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile: “(i) Threat/intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of Stock Witnesses. (v) Protracted Trials. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile: “(i) Threat/intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of Stock Witnesses. (v) Protracted Trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witness.” 45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: “witnesses are the eyes and ears of justice”. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well." (Emphasis laid down) 26. Now coming to this case, PW-1 Mohd. Ayub @ Bachai has stated that his house and tea stall are situated toward the North to Rakesh Shukla Auto Service Station Telco Company Pitai Ka Purva. He further stated that on 25.6.2001 at about 2:30 p.m., he was present at his tea stall where Anand @ Bachha Harijan (deceased), Ashok (PW-9) and Baladin (PW-2) were present along with other person and they had asked him to serve them a cup of tea. He further stated that as they were having tea, an unknown person came there with his bicycle and by standing his bicycle, sit down beside the deceased. He further stated that after some time, hot altercation took place between them which resulted gathering and the person present on the spot, tried to intervene and pacified both of them. He further stated that as they were having tea, an unknown person came there with his bicycle and by standing his bicycle, sit down beside the deceased. He further stated that after some time, hot altercation took place between them which resulted gathering and the person present on the spot, tried to intervene and pacified both of them. He further stated that thereafter Anand @ Bachha Harijan (deceased) had moved towards courtyard (Sehan), situated in front of Rakesh Shukla Auto Service Station, but the said unknown person withdraw the bamboo stick (thuni) from his hut and started beating the deceased. He further stated that so many persons gathered at the place of occurrence and thereafter the said unknown person, by leaving his cycle at the place of occurrence, fled away. According to this witness, since the deceased had received severe injuries, he was carried to District Hospital but succumbed to his injuries during the treatment. He further stated that during the investigation, the Investigating Officer had taken into his custody, the bamboo stick (weapons of offence) and had also taken his signature on a plain paper (Ex.Ka.1). This witness was declared as hostile by the prosecution but in cross-examination, he again stated that he did not know the person who caused the said offence. 27. Baladin (PW-2) although has stated in his examination that no occurrence was happened before him but admitted that after the occurrence, he had heard that the deceased Anand @ Bachha Harijan had received severe injury on 25.6.2001 at about 2:30 p.m. whereby he became unconscious. This witness had also not supported the prosecution story and was declared hostile by the prosecution. 28. Vinod Kumar (PW-3), like PW-1, has stated that the said occurrence was happened in his presence on 25.6.2001 at 2:30 p.m. wherein Anand @ Bachha Harijan was beaten by one unknown person to whom he did not know. This witness was also declared hostile by the prosecution as he denied the identity of the accused. 29. Ramu Vishwakarma (PW-4) has stated that at the time of occurrence, he was doing his duty, inside Rakesh Shukla Auto Service Station, Telco Company and he did not know who had caused injury to the deceased. This witness was also declared hostile by the prosecution. 30. 29. Ramu Vishwakarma (PW-4) has stated that at the time of occurrence, he was doing his duty, inside Rakesh Shukla Auto Service Station, Telco Company and he did not know who had caused injury to the deceased. This witness was also declared hostile by the prosecution. 30. Dileep (PW-5) has stated that he was not present at the place of occurrence as he had gone to his house to take lunch and when he returned, he had seen that the deceased was badly injured and was being carried to the hospital. He further stated that he had also accompanied the deceased to the hospital; and deceased was unconscious due to his head injury. He further stated that due to severe injury, the doctors of District Hospital, Pratapgarh had referred him to Swarooprani Hospital, Allahabad and he had also gone to Allahabad where, after five days during the treatment, deceased had died. He further stated that after some days, he got an information that the deceased was washing the vehicle in Auto Service Station where he had received severe injuries as he fell down due to intoxication. This witness was also declared hostile as he did not supported the prosecution story. 31. Dinesh (PW-6) has stated that at the time of occurrence, he was sleeping at his house and as he got information, he rushed to the place of occurrence and saw that the deceased was being carried to District Hospital. This witness further stated that he had heard that there was quarrel between the deceased Anand @ Bachha Harijan and appellant on a trival issue and meanwhile, the appellant had caused injury to the deceased by bamboo stick (thuni). 32. Ram Lotan (PW-7) has also stated that he was not present at the time of occurrence and he had heard that the deceased was beaten by the appellant Rais Shekh. This witness was also declared hostile by the prosecution. 33. Thus, none of the prosecution witnesses, who has been declared by the prosecution as hostile, have disputed the date, time, manner and factum of the occurrence. Mohd. Ayub @ Bachai (PW-1), Vinod Kumar (PW-3), Dileep (PW-5) have clearly stated that the fatal injury was caused by bamboo to the deceased Anand @ Bachai before him on 25.6.2001 at 2:30 p.m. at the said place of occurrence. They have been declared hostile, only because they denied the identity of accused. Mohd. Ayub @ Bachai (PW-1), Vinod Kumar (PW-3), Dileep (PW-5) have clearly stated that the fatal injury was caused by bamboo to the deceased Anand @ Bachai before him on 25.6.2001 at 2:30 p.m. at the said place of occurrence. They have been declared hostile, only because they denied the identity of accused. Trial Court has not rejected the whole evidence of these hostile prosecution. It has taken their statement into consideration to that extent to which it support the prosecution story. In my view, in view of the law laid down by Hon'ble Supreme Court in Sanjeev Nanda (supra), Ramesh Prasad Mishra (supra) and K. Anbazhagan (supra), trial court has not committed any error. 34. Now coming to the next submission of the learned counsel for the appellant that evidence of Ashok Kumar (PW-9) can not be taken into consideration as he is relative of deceased. It is settled principle of law that testimony of relative witnesses, if their presence on spot are natural and their statement are trustworthy, should be preferred on the testimony of other witness, because relative witnesses do not implicate false person, leaving real culprit. 35. It is very pertinent to quote at this very stage the law laid down in Masalti and others vs. State of U.P., AIR 1965 SC 202 , wherein Court said as under : "...............But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.........." 36. Similarly, in Mohabbat vs. State of M.P., (2009) 13 SCC 630 , Court held as under : "...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Similarly, in Mohabbat vs. State of M.P., (2009) 13 SCC 630 , Court held as under : "...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible." 37. Ashok Kumar (PW-9) has stated that at the time of occurrence, at about 2:30 p.m., he, deceased, Ramu (PW-4), Dinesh (PW-6), Dileep (PW-6) and Harikesh were having tea at tea stall of Bachai (PW-1). He further stated that meanwhile appellant-Rais Shekh came there and started to have tea. He has further stated that after some time, appellant Rais Shekh began to pass dirty jokes with the deceased Anand @ Bachha Harijan and on objection raised by him, appellant abused and quarreled with him. He further stated that he, Harikesh, Dinesh (PW-6), Ramu (PW-4), Bachai (PW-1) tried to intervene but the appellant caused injury on the head of the deceased by a bamboo (thunni) fixed at the tea stall. He further stated that he along with other person carried the deceased to the hospital by jeep but the doctor had referred him to S.R.N Hospital, Allahabad where he was admitted for treatment. He (PW-9) further stated that at the time of occurrence, he and deceased were employed at Rakesh Auto Service Station where he and deceased were engaged in washing the vehicles. He again stated that at the time of occurrence, he was having tea at the place of occurrence and the deceased Anand was also sitting there. He, in his cross-examination, again stated that meanwhile the appellant-Rais came there by his bicycle and sit beside the deceased. This witness in his cross-examination admitting that he had not lodged the report, has further stated that he was present at the place of occurrence and saw the whole occurrence. 38. From perusal of injury report (Ex.Ka.2), it transpires that the deceased was carried by Ashok Kumar (PW-9) in an injured condition before Dr. C.P. Verma (PW-8), District Hospital, Pratapgarh, for treatment and medical examination. In addition to above, the presence of Ashok Kumar (PW-9) has also been shown in FIR along with other witnesses. 38. From perusal of injury report (Ex.Ka.2), it transpires that the deceased was carried by Ashok Kumar (PW-9) in an injured condition before Dr. C.P. Verma (PW-8), District Hospital, Pratapgarh, for treatment and medical examination. In addition to above, the presence of Ashok Kumar (PW-9) has also been shown in FIR along with other witnesses. Thus, the presence of this witness as well as other witnesses named in the first information report is not disputed. This witness has been thoroughly cross examined by the defence but nothing has come out from his examination whereby his testimony can be disputed. Thus, merely on the ground that he is relative of deceased, his testimony cannot be doubted. 39. Further, the occurrence was happened on 25.6.2001 at about 2:30 p.m and the first information report was lodged on the same day at 9:30 p.m. In the meantime, the deceased was carried by the prosecution witnesses to the hospital, situated at Pratapgarh and thereafter Allahabad for medical treatment. Thus, there is neither delay in lodging the F.I.R. nor in medical examination. 40. So far as the argument of learned counsel for the appellant that deceased had died due to head injury received in accident, caused due to slip of hydraulic jack, is concerned, appellant has not produced any eye witness in his defence who had seen that deceased had received such injury in any accident as submitted by the learned counsel of the appellant. Learned counsel in support of his submission has placed reliance only on testimony of S.B. Shukla (DW-1). Vinod Kumar (PW-3), informant, who was declared hostile by the prosecution has clearly stated that the said injury was caused to deceased by bamboo (thuni). He, in cross-examination by defence counsel, has rejected the suggestion of defence counsel that said injury was received by deceased in accident caused due to slip of hydraulic jack. Similarly, Ashok Kumar (PW-9) has also rejected the aforesaid suggestion, put to him by defence. Dr. C.P. Verma (PW-8) has clearly said that injury on the head of deceased was caused by blunt object. In cross-examination, neither any question nor any suggestion was put to this witness that injury, present on the head of deceased at the time of examination, was caused in accident. Dr. C.P. Verma (PW-8) has clearly said that injury on the head of deceased was caused by blunt object. In cross-examination, neither any question nor any suggestion was put to this witness that injury, present on the head of deceased at the time of examination, was caused in accident. S.B. Shukla (DW-1) although has stated that injuries of deceased were noted in Accidental Medical Register but in cross-examination he admitted that he was not medico legal expert and could not tell whether the case, wherein he was deposing, was accidental or not. In my view, where the defence had failed to put any question or suggestion to the doctor (PW-8) who had examined the deceased, as to whether or not injury to deceased was caused in accident, the testimony of defence witness S.B. Shukla (DW-1) cannot affect the prosecution story and trial Court has rightly disbelieved the defence of the appellant. Thus, the submission of learned counsel has no force. 41. In addition to above, appellant has also not stated in his statement U/s 313 of the Code regarding any enmity to prosecution witnesses especially with Vinod (PW-3) who lodge F.I.R. against him and Ashok (PW-9) who being eye witness, fully supported the prosecution story as to why prosecution witnesses have given evidence against him. Thus, failure of appellant to create any doubt in the credibility of these prosecution witnesses further creates doubt in the submission of learned counsel for the appellant. 42. In my view, such portion of statement of prosecution witnesses which supports the prosecution story i.e. time and place of occurrence, manner of causing injury and efforts made by them to save the deceased cannot be discarded. Similarly, the statement of Ashok Kumar (PW-9) whose appearance at the time of occurrence is natural and trustworthy, cannot be disbelieved only on the ground that he is relative of the deceased in view of the law laid down by Hon'ble Supreme Court in Masalti (supra) and Mohabbat (supra). 43. Thus in view of the above, I am of the view that the prosecution has succeeded to prove its case beyond reasonable doubt against the appellant. The judgment of lower court is well reasoned and discussed and there is no illegality in the impugned judgment. 44. Now coming to the question of sentence, whether the sentence passed by the trial Court is just proper, or not? 45. The judgment of lower court is well reasoned and discussed and there is no illegality in the impugned judgment. 44. Now coming to the question of sentence, whether the sentence passed by the trial Court is just proper, or not? 45. The appellant-Rais Shekh has been convicted for the offence U/s 304-II and sentenced for five years rigorous imprisonment along with fine of Rs. 5,000/- 46. From perusal of Section 304 II I.P.C., it transpires that accused convicted under Section 304 II I.P.C. may be sentenced for a term which may extend to ten years or with a fine or both. 47. In India no guidelines has been provided by Legislature for determination of quantum of sentence. Judiciary, especially Hon'ble Supreme Court, has evolved the theory of proportionality in awarding the sentence, subject to minimum sentence provided by the Legislature. There are several factors, although not exhaustive, which may be taken into consideration for awarding quantum of sentence, for example; gravity and seriousness of offence, age and numbers of offenders, age and number of deceased including injured persons, nature of weapons used in offence, educational and social background of accused, nature of injuries caused to deceased or injured persons, criminal antecedents of accused, motive, cause or intention of offence, weapons carried by deceased or injured persons if any, injuries caused to accused person or any member of his side if any, and duration of pendency of trial or appeal. 48. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon’ble Supreme Court has observed in State of Madhya Pradesh vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:- The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society's cry for justice against the criminal''. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society's cry for justice against the criminal''. 49. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392 , reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:- "In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles" 50. According to the prosecution case, the said occurrence was happened at the spur of moment in 2001 i.e. 19 years ago and at the time of occurrence, the appellant appeared without any weapon and the occurrence was caused by him by bamboo fixed in hut of tea stall of Bachai (PW-3). In Medico Legal Examination Report (Ex.Ka.2), only two injuries, were found on the head of the deceased. Further in statement under Section 313, the age of appellant has been recorded by the learned trial Court on 12.10.2009 as 35 years which shows that the appellant, at the time of occurrence i.e. in 2001, was aged about 27 years. In addition to above, according to learned counsel for the appellant, he has no criminal history and there was no previous enmity of appellant with deceased. 51. In addition to above, according to learned counsel for the appellant, he has no criminal history and there was no previous enmity of appellant with deceased. 51. Looking into the facts and circumstances of the case, I am of the view that the conviction of the appellant-Rais Shekh for the offence U/s 304-II requires no interference and is accordingly maintained. But in view of the law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (supra), the sentence of five years awarded to the appellant for the said offence is reduced to a rigorous imprisonment of three years. 52. The fine imposed by the trial Court requires no interference. 53. The period of sentence under gone by the appellant, shall be set off as per the provision of Section 428 of the Code. 54. Appeal is partly allowed. 55. Let a copy of this judgment along with lower court record be sent to the concerned trial Court for necessary information and compliance.