JUDGMENT : Suresh Kumar Gupta, J. 1. Being aggrieved with the judgment and order dated 12.4.2018 passed by Additional Sessions Judge, Court No. 21, Shahjahanpur, this jail appeal has been preferred by appellant in S.T. No. 165 of 2014, Case Crime No. 395 of 2013, under Sections 304, 504 & 506 I.P.C. in which appellant has been convicted under Section 304 (II) I.P.C. for 5 years rigorous imprisonment alongwith fine of Rs. 10,000/- and in default of payment of fine six month further imprisonment.. Appellant was acquitted under Sections 304/34, 504 & 506 I.P.C. After depositing the aforesaid fine 3A part of the same shall be given to the victim as compensation. 2. Brief facts of this case are as follows-: That on 7.9.2013 at about 7-8 p.m. lot of altercation happened between husband of complainant namely Sher Pal (deceased) and her neighbour namely Mausam Ali and this altercation continued for a long time. Complainant alongwith her daughters and her Jem's son namely Ramesh (appellant) had tried to sort out the matter but all in vain. Then Ramesh inflicted two -three blow of stick on the head of Sher Pal and pushed him on the floor. Accused Mausam Ali is also involved in this incident. Thereafter complainant tried to take her husband to the hospital for treatment but could not do the same due to non-availability of vehicle, resultant her husband-Sher Pal had died on the spot. This occurrence was witnessed by several neighbours of the complainant. Thereafter, complainant scribed a report by Irfan and on the basis of that written report Ex. Ka-1 an F.I.R. was lodged (Ex. Ka-8) on 8.9.2013 at 00.30 mid night at police station Rauja against appellant-Ramesh and co-accused-Mausam Ali. Distance between the police station and place of occurrence is about 12 hours in North-East. 3. This case is entered in G.D. at serial No. 2 dated 8.9.2013 at 00.30 hours (Ex. Ka-2) and inquest report (Ex. Ka-4) as well as papers relating to autopsy is also prepared by SI Janki Prasad Sharma on direction of S.H.O. Afterward autopsy of deceased was done in district hospital by PW-5-Dr. R.S. Prasad. According to PW-5 at the time of alleged incident deceased was 45 years old and duration of death of deceased about one day. Ka-4) as well as papers relating to autopsy is also prepared by SI Janki Prasad Sharma on direction of S.H.O. Afterward autopsy of deceased was done in district hospital by PW-5-Dr. R.S. Prasad. According to PW-5 at the time of alleged incident deceased was 45 years old and duration of death of deceased about one day. In medical examination following ante-mortem injuries were found on the body of deceased: i. Lacerated wound 2.5 cm X 1 cm into bone deep on the right eye-brow. ii. Abraided contusion 4 cm X 2 cm on tip of nose iii. Contusion 6 cm X 3 cm on the left side of back 12 cm below the right tip of shoulder. iv. Contusion of 8 cm X 4 cm on left side back 10 cm below. v. Contusion 12 cm X 3 cm on left side of lower part of back just above left side of buttock. vi. Abraided contusion 7 cm X 3 cm on right side of back of chest 4 cm below tip of shoulder. vii. Contusion 8 cm X 2.5 cm on right side of back 9 cm below tip of shoulder. 4. On internal examination of body of deceased injuries No. 4 to 7 were rib fracture on the left side of back, lungs were ruptured, heart was empty, stomach was empty, chyme and gases were present in small intestine, bladder was empty. As per result of ante-mortem injuries, doctor opined that death of deceased was done due to shock and hemorrhage. Death report is proved as Ex. Ka-7. 5. That investigation of this case was conducted by 10 Virendra Bahadur Singh/PW-3.10 prepared site plan (Ex. Ka-2) on instruction of complainant and after recording the statement of witnesses as well as after completing formality of investigation submitted charge-sheet (Ex. Ka-3) against appellant-Ramesh and co-accused-Mausam All before C.J.M. concerned, where it is committed to the sessions Court and by means of transfer this case is decided by A.D.J. Court No. 21. On 16.7.2014 charge was framed against the appellant as well as co-accused, Mausam Ali, under Sections 304/34, 504 & 506 I.P.C. After conclusion of trial learned trial Court acquitted co-accused, Mausam Ali, and convicted the appellant as aforesaid. 6. In order to substantiate the charge levelled against the appellant, prosecution examined Smt. Mahadevi (wife of deceased) as PW-1, she proved the written report (Ex. Ka-1). 6. In order to substantiate the charge levelled against the appellant, prosecution examined Smt. Mahadevi (wife of deceased) as PW-1, she proved the written report (Ex. Ka-1). Sita, who is the daughter of deceased as PW-2, PW-1 and PW-2 are reported as eye-witnesses of the alleged incident, 10 Virendra Bahadur Singh as PW-3, who proved site plan as Ex. Ka-2 and charge-sheet as Ex. Ka-3. Dr. Janki Prasad Verma as PW-4, who proved inquest report as Ex. Ka-7, C.M.O. Letter, R.I. Letter and challan nash Ex. Ka-4 to Ex. Ka-6, Dr. Aditya Prakash Arya as PW-5, who proved post-mortem report as Ex. Ka-7 and Cr. Clerk Jitendra Singh as PW-6, who proved the chik F.I.R. as Ex. Ka-8 and relevant G.D. No. 2 as Ex. Ka-9. 7. After examination of these witnesses, on 9.3.2018 statement of accused-appellant was recorded under Section 313 Cr.P.C. Accused/appellant denied all the charges levelled against him and stated, that he was falsely implicated in this case by complainant due to personal vengeance. Co-accused Mausam Ali clearly denied the prosecution version and stated that he is innocent and deceased and his wife committed marpeet to one woman of his village namely Sushila Devi and co-accused was the witness of that incident, due to that enmity wife of deceased has falsely implicated him in this case. After hearing of both the parties, learned trial Court acquitted the accused and convicted the appellant as aforesaid being aggrieved against the order dated 2.4.2018, this appeal has been filed by the appellant. 8. I have heard learned counsel for the appellant and the learned A.GA. and perused the material available on record. 9. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. The occurrence has taken place at about 8 p.m. and F.I.R. was lodged at about 12.30 midnight having delay of 4.30 hours and there is no explanation regarding the same. That no independent eye-witness was examined by the prosecution and both the prosecution witnesses i.e. PW-1 (wife of deceased) and PW-2 (daughter of deceased) are relatives of deceased and they are interested witnesses, therefore no reliance can be placed on the statement of interested and related witnesses. That no independent eye-witness was examined by the prosecution and both the prosecution witnesses i.e. PW-1 (wife of deceased) and PW-2 (daughter of deceased) are relatives of deceased and they are interested witnesses, therefore no reliance can be placed on the statement of interested and related witnesses. As independent witness was available on the spot as no independent witness examined by the prosecution so conviction of appellant could not be sustained Learned counsel further submitted that death of deceased was died due to falling on the pave road it cannot be established from the evidence that the act was committed by the appellant with intention to kill the deceased. Rather than due to certain altercation between Mausam Ali and deceased this incident unintentionally happened. Learned counsel next submitted that co-accused-Mausam Ali was acquitted by the trial Court so appellant is also liable to be acquitted. Learned counsel further submitted that appellant is an old age person and if Court found appellant's guilt then considering the poor condition, and there was no pre-mediation or pre-arrange plan and entire circumstances that death of deceased occurred due to non-availability of any vehicle at the time of alleged incident so complainant could not take her husband to the hospital for treatment and he succumbed due to excessive bleeding. 10. Per contra, learned A.G.A. submitted that appellant had intentionally committed culpable homicide and given several fatal blow by stick, which resultant to death of deceased. He further submitted that although there are several eyewitnesses were present at the spot at the time of alleged incident but due to enmity and partibandi in village independent person always refuse to give deposition so it could not be presume that absence of independent eye-witness belied prosecution case. Learned A.GA. further contended that prosecution is able to prove its case beyond shadow of doubt. The alleged incident has taken place in the village of deceased. Hence, neither date time and place of occurrence nor the identity of accused could be disputed by learned counsel for appellant. Role of appellant to inflict injury to deceased with lathi and unintentionally pushed the deceased on pave road was proved. There is no material on record to disbelieve the prosecution charge against appellant. Hence, neither date time and place of occurrence nor the identity of accused could be disputed by learned counsel for appellant. Role of appellant to inflict injury to deceased with lathi and unintentionally pushed the deceased on pave road was proved. There is no material on record to disbelieve the prosecution charge against appellant. It is also submitted that learned trial Court does not seem to have fallen an error while convicting and sentencing the appellant under Section 304 part II I.P.C. Appellant deserves no leniency. So appeal is liable to be dismissed. 11. In order to prove this case prosecution examined six witnesses and out of these only two witness of fact, examined by prosecution. PW-1, Mahadevi, is the wife of deceased as well as an eye-witness of this case. PW-1 deposed in her statement that before three year at 7-8 p.m. there was some altercation between her husband and neighbour, Mausam Ali. Meanwhile, brother-in-law of PW-1, Dharmpal, and her daughter tried to pacify the altercation but they could not succeed. Son of her brother-in-law (jeth) Ramesh and Mausam Ali both assailant grabbed her husband and pushed him on the pave ground. Due to this Sher Pal sudden sustained serious injuries and PW-1 could not take her husband for treatment because she failed to make arrangement of any vehicle and her husband Sher Pal died after half an hour on the spot. At the time of incident a bulb was lightning on the pole and PW-1 clearly identified the accused in the light of bulb. PW-1 in his cross-examination stated by making an improvement that Mausam Ali was armed with banka and inflicted on head of Sher Pal and Ramesh inflicted lathi on the base of nose and both of them pushed Sher Pal on pave road resultant, Sher Pal died. 12. PW-2 is the daughter of deceased who herself examined as an eye-witness and she clearly stated in her statement that Ramesh armed with lathi and Mausam Ali armed with farsa, inflicted injuries to her father so statement of PW-1 also in support of PW-2. 13. Learned trial Court acquitted co-accused, Mausam Ali, only on the grounds that although both the witnesses (PW-1 & PW-2) in their statements clearly stated that co-accused, Mausam Ali, was also involved in this incident and taken active participation but in the F.I.R.(Ex. Ka-1) no said allegation is imputed against Mausam Ali. 13. Learned trial Court acquitted co-accused, Mausam Ali, only on the grounds that although both the witnesses (PW-1 & PW-2) in their statements clearly stated that co-accused, Mausam Ali, was also involved in this incident and taken active participation but in the F.I.R.(Ex. Ka-1) no said allegation is imputed against Mausam Ali. On the opinion of learned trial Court that evidence adduced against co-accused, Mausam Ali, was not in consonance with F.I.R. so learned trial Court acquitted Mausam Ali against charge levelled upon him and no appeal against acquittal of Mausam Ali is filed by prosecution till date. Only appellant, Ramesh, was convicted and presently he is languishing in jail. 14. One of the argument of learned counsel for appellant is that occurrence has taken place on 7.9.2013 at about 7 to 8 p.m. That distance between place of occurrence and police station is about 3 kms and F.I.R. was lodged against the appellant at 12.13 midnight. Thus there are about 5 hours delay in lodging the F.I.R. which is not at all explained by the prosecution and delay in lodging F.I.R. gives rise to the fact that appellant has been falsely implicated in this case. In case of prompt F.I.R., chance of false implication of accused is very remote. While learned A.GA. submitted that delay is clearly explained in this matter that first informant is an illiterate, rustic household lady and nobody from the village came forward for arranging conveyance for deceased after alleged incident. Complainant could not manage conveyance in time so in these circumstances, delay occurred in lodging F.I.R. There are many factors which have to be taken into consideration while looking into factum of delay in criminal cases. It is true that Court has duty to take notice of delay and examined the same in a back draft 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. 15. In this connection it will be useful to take note of the following observation made by Apex Court in Tara Singh and others 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. 15. In this connection it will be useful to take note of the following observation made by Apex Court in Tara Singh and others 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." 16. 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. 17. So far as the second argument is concerned that only interested and related witnesses i.e. PW-1, Mahadevi w/o deceased and PW-2 Sita, daughter of deceased, were examined by the prosecution. No other independent witness is produced so no reliance can be placed in the statement of interested and related witnesses. That the prosecution has produced only interested and related witnesses i.e. PW-1 & PW-2. Both are relatives of deceased except this no independent eye-witness produced by the prosecution. No other independent witness is produced so no reliance can be placed in the statement of interested and related witnesses. That the prosecution has produced only interested and related witnesses i.e. PW-1 & PW-2. Both are relatives of deceased except this no independent eye-witness produced by the prosecution. While PW-1 has clearly stated in her statement that at the time of alleged incident her daughter as well as villagers were present at her door and Ramvir was also sit on his shop but neither anyone come forward nor prevented the appellant from being killing. 18. In Nagappan v. State (by Inspector of Police, Tamil Nadu), (2014) 3 SCC (Cri) 660, Hon'ble the Apex Court in paragraph No. 10 has observed as under: "10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 2 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1 & PW 2. The trial Court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were, interested witnesses. In oilier words, relationship is not a factor to affect the credibility of a witness." (emphasis added) 19. In Vikram Singh and others v. State of Punjab, (2010) 3 SCC 56 , Hon'ble the Supreme Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and others v. State of Haryana, 1983 (3) SCC 327 , which reads as under: "There were three eye-witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence." (Emphasis added) 20. In Sheesh Ram and others v. State of Rajasthan, (2014) 3 SCC 689 , Hon'ble the Apex Court in paragraph No. 10 has observed as under: "10. It is submitted that all these witnesses are related and therefore their evidence cannot be relied upon. Assuming they are related to each other and, hence, interested witnesses, it is well-settled that the evidence of interested witnesses is not always suspect. It has to be scrutinized with caution and can be accepted if it is found reliable." 21. Hence, statement of a relative or interested witness could not be thrown out only on the ground that the witness is relative or interested witness, rather, such statement is to be scrutinized with caution. 22. Hon'ble the Apex Court in Gopal Singh v. State of U.P., (1978) 3 SCC 327 , has observed in paragraph No. 11 as under: "11. True, they were interested witnesses, related to the deceased. 22. Hon'ble the Apex Court in Gopal Singh v. State of U.P., (1978) 3 SCC 327 , has observed in paragraph No. 11 as under: "11. True, they were interested witnesses, related to the deceased. Far from undermining the circumstances of the case, it guaranteed the truth of their testimony. Being relations, they would be the least disposed to falsely implicate the appellant, or substitute him in place of the real culprit. In short, the murder charges had been proved to the hilt against the appellant." 23. As the law propounded by Apex Court statement of relatives and interested witnesses could not be thrown out only on the ground that witnesses are relatives. Rather such statement of the witnesses is to be scrutinized with caution. It is made clear that related or interested witnesses will never like to save the real culprit and falsely implicate some other innocent person. In this case alleged occurrence has taken place near the house of the deceased and presence of these witnesses are quite natural. Hence, no adverse inference can be drawn that witnesses are related and interested witnesses. In the backdrop of the legal situation now it is to be seen as to whether the prosecution has been succeed to prove the charges against the accused. 24. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellant 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. Firstly, there is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the appellant and his companions took to their heels - a circumstance that shows that the appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception-4. Thirdly, because during the exchange of hot words between the deceased and the appellant, intention of the appellant and his companion was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the appellant to the benefit of Exception-4 to Section 300 of the I.P.C. 25. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217 , Apex Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated Fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 I.P.C. this Court observed: "..........To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no pre-meditation; (Hi) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant not is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly." 26. Considering the entire facts and circumstances of the case as well as after perusing the record in this appeal prosecution has successfully proved the charges levelled against the appellant beyond reasonable doubt. Learned trial Court has also rightly recorded the finding of guilt against the appellant. Considering the entire facts and circumstances of the case as well as after perusing the record in this appeal prosecution has successfully proved the charges levelled against the appellant beyond reasonable doubt. Learned trial Court has also rightly recorded the finding of guilt against the appellant. I do not find any illegality in the impugned judgment and order of the trial Court. So in these circumstances, the conviction is upheld against the appellant. So far as regard sentence is concerned appellant is the nephew of the deceased. Appellant only tried to pacify the matter between Mausam Ali and deceased and there were no pre-mediation or prearranged plan to commit crime and incident has taken place all of sudden in spur of moment. Appellant has no intention to commit such fatal assault on the deceased. Appellant was incarceration few months during trial as well as after judgment he is in jail continuously since 12.4.2018. In these circumstances, it would be appropriate for the end of justice, sentence of five years rigorous imprisonment is reduced to three years rigorous imprisonment alongwith fine of Rs. 10,000/- with default clause and compensation to the widow/complainant (wife of deceased) as awarded by trial Court. 27. Appeal is partly allowed on the point of sentence only. 28. Appellant is in jail. The period spent by the appellant in jail shall be set off from the imprisonment awarded by this Court. Learned trial Court shall ensure compliance of this order. 29. Office is hereby directed to certify this order to the learned trial Court immediately. The lower Court record should also be transmitted forthwith.