JUDGMENT Mukteshwar Prasad, J.
1. Accused Kishore, son of Khushi Ram, has come up in appeal under Section 374 Cr.P.C. against the judgment and order-dated 5.2 1981 passed by the then Additional Sessions Judge, Etah in S.T. No. 755 of 1978 whereby she convicted him under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of five years
2. In nutshell, the allegations which led to the prosecution of the appellant were as under.
3. P.W. 2 Pokh Pal, son of Deena Nath, a resident of village Matwaria, P.S. Jaithra, handed over a written report to the police on 27.1.1978 at 9-30 P.M. and on the basis of report, the local police registered a case against the appellant and his brother Suresh under Section 307 I.P.C. P.W. 4 Chokhe Lal is real younger brother of the informant and P.W. 3 Roop Lal is admittedly son of the informant's mother's sister (Mausi).
4. On 27.1.1978 at about 6-00 P.M. the complainant, his brothers Chokhe Lal and Ram Swarup and his co-villager Roop Lal were warming themselves near their houses. They saw Suresh and his brother Kishore coming from the fields with a bundle of mustard crop Pokh Pal questioned them as to why did they damage mustard crops of others Kishore did not like this question and asked to mind his business Thereupon, Pokh Pal told them that he would lodge a report against them with the police and exchange of hot words took place. Both brothers went to their house and placed the bundle. Kishore armed with his licensed gun and Suresh who was having a country made pistol arrived there and threatened to teach Pokh Pal and Ors. a lesson. Kishore fired a shot at Pokh Pal with his licensed gun which hit at his chest. Roop Lal challenged them and then Suresh fired a shot with his country made pistol at Roop Lal causing injuries in his thigh. Chokhe Lal and Ram Swarup who were sitting there made an unsuccessful attempt to apprehend the assailants but they ran away.
5. Pokh Pal lodged a F.I.R. at P.S. Jaithra on the same night at 9-30 P.M. After registration of the case, the police sent both the injured to P.H.C., Jaithra for medical examination of their injuries.
6. P.W. 1 Dr. J.N. Singh, the then Medical Officer of P.H.C. Jaithra examined the injuries of Pokh Pal, aged about 65 years on 27.1.78 at 11-30 P.M. and found six gun shot wounds of entry over right side of the chest lower part 5 cm. lateral to right nipple present in an area of 11 cm. x 5 cm. Margins of each wounds were mixed with each other and were lacerated and everted.
7. Dr. Singh further found six wounds of exit over right lower part of his chest in an area of 11 cm. x 5 cm. Margins of wounds were everted and lacerated. Bleeding was present on the entry and exit wounds
8. Dr. Singh further examined the injuries of Roop Lal on the same night at 11-45 P.M. and found three gun shot wounds over right and left thighs. No blackening was found.
9. All injuries of both the injured were caused by firearms and were fresh at the time of examination. Doctor advised X-ray of the injuries.
10. The case was investigated as usual by P.W. 5 S.I. K.N. Cnaturvedi. The I.O. recorded the statement of the witnesses, visited village in question and after inspection of place of incident prepared a site-plan. He collected blood stained earth as well as clothes of the injured and prepared seizure memos. .
11. After completing investigation, he filed charge sheet against both the brothers.
12. Accused Suresh expired before committal of the case.
13. Accused Kishore was charged under Section 307 I.P.C. on 10.11.80 to which he pleaded not guilty and claimed to be tried.
14. At the trial, the prosecution examined six witnesses in all to prove its allegations. They are P.W. 1 J.N Singh, the then Medical Officer of P.H.C., Jaithra to prove the injuries of Pokh Pal and Roop Lal, P.W. 2 Pokh Pal is complainant and one of the injured, P.W. 3 Roop Lal had also sustained injuries in the course of incident, P.W. 4 Chokhe Lal is real brother of the complainant and one of the eye witnesses, P.W. 5 S.I. K.N. Chaturvedi is I.O. of the case, P.W. 6 H.C. Panna Lal proved seizure memo regarding blood stained clothes of Pokh Pal which were handed over to him by Chokhe Lal on 17.2.1978.
15. Accused Kishore totally denied all accusations and pleaded ' his false implication on account of litigation between his father and Gauri Shankar father of Roop Lal regarding trees. According to him, his father Khushi Ram had won the case. He further disclosed that Pokh Pa. and Chokhe Lal are real brothers and Roop Lal is son of the complainant's mother's sister. No evidence was led in defence.
16. After close scrutiny of the entire evidence on record and considering the arguments advanced on behalf of the parties, learned trial Judge found the accused guilty for committing offence punishable under Section 307 I.P.C. and convicted and sentenced him as mentioned above.
17. I have heard learned Counsel for the appellant, learned A.G.A. and perused the record carefully.
18. Learned Counsel for the appellant has urged with vehemence that the prosecution did not examine any independent witness to prove its story and three witnesses produced in the witness box namely, Pokh Pal, Roop Lal and Chokhe Lal are related to each other and the Court below committed error in placing reliance on their testimony It was also contended that P.W. 1 Dr. J.N. Singh who examined the injuries of Pokh Pal and Roop Lal has nowhere said that the injuries caused were grievous or dangerous to life and as such, the trial Judge should not have recorded, conviction of the appellant under Section 307 I.P.C. It was also submitted that the incident in question took place in the month of January, 1978 and since then 27 years have elapsed and as such, the sentence imposed on the appellant has to be reduced.
19. On the other hand, learned A.G.A. has supported the judgment under appeal and has contended that the appellant being a close neighbour, caused firearm injuries on the chest of Pokh Pal with an intention to kill him and he misused his licensed gun for committing the crime. Not only this, co-accused Suresh who expired caused injuries to Roop Lal with his Tamancha. the Court below committed no error in appraisal of the evidence on record and rightly concluded that it was the appellant who committed the crime.
20. I have considered the submissions made on behalf of the parties. I have also gone through the entire oral and documentary evidence on record carefully. After careful scrutiny of the entire material on record, I find that this appeal is devoid of substance and is liable to be dismissed. First of all, it is noteworthy that the complainant and his witnesses and the appellant are all co-villagers and the house of the appellant was very near to the house of the complainant Besides, the fire (Alav) was quite adjacent to the house of the appellant where Pokh Pal and Ors. were warming themselves. Therefore, there was no question of committing mistake in recognizing the real assailants. As noted above, the prosecution examined three witnesses in all, including two injured to prove its accusation. P.W. 2 Pokh Pal fully supported the prosecution story and disclosed that he and Ors. were sitting around the Alav in the back portion of his house In the meantime, Kishore and his brother Suresh arrived there with bundle of mustard crops on their heads. When he forbade the appellant and his brother not to commit mischief by uprooting mustard crops from the field of others, this caused annoyance to the appellant and he along with his brother fired at his chest with his licensed gun. According to him, Roop Lal also sustained firearm injuries. In cross-examination, the witness testified that his brother Chokhe Lal and Ram Swarup were also warming themselves and were present there. He totally denied that there was complete darkness at the time of incident and the assailants could not be identified.
21. P.W. 3 Roop Lal who is another injured corroborated the testimony of Pokh Pal and gave out that Suresh fired at him with his Tamancha, P.W. 4 Chokhe lal further strengthened the testimony of the complainant and corroborated the testimony of his brother. All the three witnesses were cross-examined at length and effectively. I, however, find nothing in their cross-examination to discard or disbelieve their testimony. It is true that the witnesses are closely related to each other and as such, they were interested. Now law is well settled on the point that testimony of interested, or related witnesses shall not be rejected/discarded mechanically. The Courts are required to scrutinize the evidence of such witnesses with great care and caution. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. This was held in Harbans Kaur and Anr. v. State of Haryana 2005 SCC (Cri) 1213. In the instant case, Roop Lal, who also sustained injuries in the course of incident, is complainant's mother's sister's son. Therefore, the prosecution was bound to examine him to prove its case. Since Chokhe Lal and Ram Swamp, two brothers of the complainant were also sitting there around the fire, one of them was produced in the witness box. In this view of the matter, it is not proper at all to blame the prosecution that it examined related witnesses only. Needless to mention our Evidence Act does not insist on plurality of witnesses and lays emphasis on the quality of the evidence.
22. In view of the aforesaid scrutiny of the evidence on record, I am clearly in agreement with the finding of the Court below that it was the appellant and none else who caused firearm injuries to Pokh Pal on the fateful day and made an attempt to commit his murder.
23. Now the question is as to whether the offence committed by the appellant would fall within the ambit of Section 307 I.P.C.?
24. It was held recently by the Apex Court of the country in State of Madhya Pradesh v. Saleem @ Chamaru and Anr. 2005 (52) ACC 956 that it is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 I.P.C. cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
25. Therefore, in view of the foregoing discussion of the evidence on record including medical evidence and the legal position also, it can be safely concluded that the trial Judge committed no error in holding the appellant guilty for committing an offence punishable under Section 307 I.P.C. and the conviction of the appellant is sustainable.
26. So far as sentence is concerned, it is correct that the incident took place in the year 1978 but this long lapse of time between the date of incident and the date of disposal of the appeal filed by the culprit is no ground to take a lenient view. The High Court of M.P. had reduced the sentence to the period already undergone in an appeal filed against conviction under Sections 307 and 333 I.P.C. with the aid of Section 34 I.P.C. The Supreme Court of India in the aforesaid decision (State of M.P. v. Salim) expressed its anguish and displeasure and held that it is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was committed.
27. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. Therefore, keeping in mind all facts, evidence on record, circumstances of the case and weapon used by the appellant for committing the crime and the victim who was a close neighbor of the appellant and an old man of 65 years, I see no valid ground to reduce the sentence imposed by the Court below. In my considered opinion, the sentence recorded against the appellant cannot be said to be excessive.
28. In the result, this appeal fails and is hereby dismissed. The conviction of the appellant under Section 307 I.P.C. and the sentence of five years rigorous imprisonment imposed by the Court below are upheld.
29. The appellant is on bail. The Chief Judicial Magistrate, Etah shall lodge the appellant in jail after taking him into custody and ensure compliance of this order with intimation to this Court within a period of six weeks from the date of receipt of a copy of the judgment.
30. A copy of the judgment shall be sent to the Court below/Chief Judicial Magistrate for compliance of the order