JUDGMENT : Rajendra Kumar-IV, J. 1. Accused-appellants Santu Kori, Murli and Lahuri (Now dead) and accused-appellant Jhinguri filed this criminal appeal challenging the judgment and order dated 29.8.1998 passed by Special Additional Sessions Judge, Faizabad in Session Trial No. 338 of 1991, State vs. Santu Kori and others, under Section 307 I.P.C. (Crime No. 307 of 1991), Police Station Kotwali Beekapur, District Faizabad whereby Trial Court convicted all the accused-appellants under Section 307/34 I.P.C. and sentenced them to undergo 7 years rigorous imprisonment with fine of Rs. 1000/-each and in default of payment of fine, they shall further undergo for 6 months simple imprisonment. 2. Brief facts of the prosecution case which need to be noted for disposal of the present appeal which are as under : On 3.8.1991 at about 9:00 PM, accused persons Santu Kori and Murli with Lathi, accused Jhinguri with Ballam and accused Lahuri with Farsa attacked Ram Tahal in sugar cane field causing serious injuries with intention to kill him. 3. On the basis of of written tehrir Ex.Ka-1 of PW-1 Sant Ram, Chick F.I.R. Ex.Ka-5 was registered under Section 307 I.P.C. against the accused persons, entry of case was made in general diary Ex.Ka-6. 4. Injured Ram Tahal was medically examined by Dr. K.U. Ahmad on 3/4.8.1991 at about 12:40 in the night. Doctor found 9 injuries on the person of injured Ram Tahal and prepared medical report. 5. S.S.I. Surjan Singh Sengar undertook the investigation, visited spot, prepared site plan, recorded the statement of witnesses, found sufficient evidence and submitted charge sheet against the accused-appellants under Section 307 I.P.C. 6. Case, being exclusively triable by Court of Sessions, was committed by Additional Chief Judicial Magistrate, Faizabad to Session Judge for trial which came to be transferred and decided by Special Additional Sessions Judge, Faizabad. 7. Trial Court framed charges against accused-appellants under Section 307/34 I.P.C. Accused persons denied the charges levelled against them, pleaded not guilty and claimed trial. 8. In order to substantiate its case, prosecution examined PW1Ram Tahal (Injured), PW-2 Sant Ram, PW-3 Chandrabhan (independent witness), PW-4 Dr. A.K. Srivastava, PW-5 Dr. K.U. Ahmad, PW-6 Gayadeen Tiwari, Head Constable and PW-7 S.I. Surjan Singh Sengar, Investigating Officer of the case. PW-1, 2 and 3 are the witness of fact and other witnesses are formal witnesses. 9. 8. In order to substantiate its case, prosecution examined PW1Ram Tahal (Injured), PW-2 Sant Ram, PW-3 Chandrabhan (independent witness), PW-4 Dr. A.K. Srivastava, PW-5 Dr. K.U. Ahmad, PW-6 Gayadeen Tiwari, Head Constable and PW-7 S.I. Surjan Singh Sengar, Investigating Officer of the case. PW-1, 2 and 3 are the witness of fact and other witnesses are formal witnesses. 9. Subsequent to closure of prosecution evidence, Trial Court recorded statement of accused-appellant under Section 313 Cr.P.C. explaining all incriminating and other evidence and circumstances. In the statement under Section 313 Cr.P.C., accused denied prosecution story in toto and subsequently stated that they were falsely implicated in the present case on account of property dispute. 10. Trial court after appreciating the entire evidence of prosecution and hearing of both the parties, convicted and sentenced the accused-appellant as stated above. 11. During the pendency of appeal, accused-appellant no. 1 Santu Kori, appellant no. 3 Murli and appellant no. 4 Lahuri have died. Their appeal stood abated. Only appellant no. 2 Jhinguri remained alive. 12. I have heard Sri Krishna Kumar Singh, learned counsel for the appellants and Ms. Parul Kant, learned AGA for the State at length and have gone through the record available on file with the valuable assistance of learned counsel for the parties. 13. Learned counsel for appellant no. 2 Jhinguri submits that the accused-appellant is innocent and has been falsely implicated in the present case. He has committed no offence. Only PW-1 Ram Tahal is injured in the incident, rest witnesses i.e. PW-2 and 3 are not independent witnesses. They are interested witnesses. The appellant is old person aged about 60 years and incident is of the year, 1991. There is no motive to accused to commit the present crime. There are several contradictions in the statement of witnesses so as to disbelieve their evidence. It is further contended that injured in incident Ram Tahal has also been died during the pendency of appeal. The present appellant and Dharmpal and Satyapal son of Ram Tahal entered into a compromise in the matter and compromise deed is also on file mentioning that criminal appeal be allowed for sentencing of already under gone. 14. It is further contended that injured in incident Ram Tahal has also been died during the pendency of appeal. The present appellant and Dharmpal and Satyapal son of Ram Tahal entered into a compromise in the matter and compromise deed is also on file mentioning that criminal appeal be allowed for sentencing of already under gone. 14. On the other hand, learned AGA for the State opposed the submission made by learned counsel for the appellant and submitted that accused-appellant along with other co-accused (Now dead) assaulted the victim Ram Tahal (Now dead) with Lathi, Danda and Ballam causing him serious injuries. Victim was medically examined and trail court after appreciating entire evidence rightly found him guilty, convicted and sentenced him. 15. Although time, date and place of incident, injuries found on the person of victim, respective weapon of accused-appellant are not disputed by learned counsel for the appellant. According to him, accused-appellant is not responsible for causing injuries to victim. He has been falsely implicated. 16. Only question remains for consideration is, "whether accused-appellant is responsible for causing injuries to victim along with other co-accused and Trial Court has rightly appreciated the evidence and found him guilty or not?" 17. Now I may proceed to consider the submissions of learned counsel for the parties and evidence briefly as well as legal points with few important decisions. 18. PW-1 Ram Tahal (Injured) deposed in his statement that on 3.8.1991 at about 9:00 PM, accused-appellants Santu Kori, Murli, Lahuri and Jhinguri assaulted him with their respective weapon. Accused-appellant Santu Kori and Murli was having Lathi in their hands while Jhinguri was having Ballam and Lahuri was having Farsa. All the four persons surrounded and assaulted him causing serious injuries. He sustained serious injuries and fell down on earth. On hearing his scream Sant Ram, Indra Pal and Ghanshyam came to spot, witnessed the incident and saved him. Accused was recognized in the light of torch. 19. PW-2 Sant Ram (real nephew of PW-1) deposed in his statement that on hearing scream of Ram Tahal, he reached to spot and saw that accused persons were assaulting him with Lathi, Dandal Farsa and Ballam. 20. PW-3 Indra Pal also supported the prosecution case and deposed that he reached the spot on hearing scream of Ram Tahal. 19. PW-2 Sant Ram (real nephew of PW-1) deposed in his statement that on hearing scream of Ram Tahal, he reached to spot and saw that accused persons were assaulting him with Lathi, Dandal Farsa and Ballam. 20. PW-3 Indra Pal also supported the prosecution case and deposed that he reached the spot on hearing scream of Ram Tahal. He rushed to spot and saw in the light of Torch that accused Jhinguri with Ballam and Lahuri with Farsa and rest accused Santu and Murli with Lathi were assaulting Ram Tahal. 21. All the three witnesses withstood lengthy cross-examination but nothing adverse could be brought on record so as to disbelieve their statement. 22. Doctor conducted medical examination of injured Ram Tahal, found 9 injuries on the person of injured. He prepared medico legal report and opined that injury nos. 1, 2 and 5 have been caused by incisor like Farsa and injury no. 9 was caused by some pointed weapon like Ballam which is assigned to present accused-appellant. 23. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. 24. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196 , Court held as under :- “As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it.” 25. So far as argument of relative witness and non-examination of independent witness are concerned, it is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364 wherein Court has held :- “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 26. In Dharnidhar v. State of UP (2010) 7 SCC 759 , Court has observed as follows :- “There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim” 27. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298 , Court has held as under : “11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292 ; and Dhari & Ors. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292 ; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308 ).” 28. It is settled that merely because witnesses are closed relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not protect actual culprit and make allegations against an innocent person. However, in such a case Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible evidence. 29. In so far as discrepancies, variations and contradictions in prosecution case are concerned, I have analysed entire evidence in consonance with submissions raised by learned counsel and find that the same do not go to the root of case and accused-appellant is not entitled to get benefit of the same. 30. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution. 31. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 , Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person. 32. 31. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 , Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person. 32. In Sachin Kumar Singhraha v. State of Madhya Pradesh, 2019 (8) SCC 371 , Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole. 33. I, lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. (See Smt. Shamim v. State of (NCT of Delhi), 2018 (10) SCC 509 ) 34. PW-1, 2 and 3 supported the prosecution case. PW-1 Ram Tahal sustained 9 serious injuries on his body at the time of incident. Doctor conducted medical examination report and submitted that injury no. 9 was caused by some pointed weapon like Ballam and as per prosecution witness, accused-appellant was having Ballam at the time of incident. Medical evidence caused with ocular version. 35. Considering the entire facts and circumstances of the case, entire evidence led by prosecution, injuries found on the person of victim and legal preposition discussed herein before,I do not find any legallity or irregularity committed by Trial Court in the impugned order. Trial Court rightly found him guilty. Conviction of accused-appellant Jhinguri deserves to be and is maintained and confirmed. 36. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 37. Conviction of accused-appellant Jhinguri deserves to be and is maintained and confirmed. 36. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 37. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder vs. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 38. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence and manner in which it was executed or committed, weapon used by him in the commission of offence, compromise between the parties, I partly allow this appeal and confirm appellant's conviction under Section 307/34 I.P.C. but modify sentence to already undergone with fine imposed by trial court. 39. 39. Lower Court record along with a copy of this judgment be sent back immediately to Trial Court through District Court concerned for compliance and further necessary action.