JUDGMENT M.C. Jain, J.
1. The State has come up in the appeal against the judgement and order dated 9.8.1982 passed by Sri S.C.M. Tripathi, the then IV Additional Sessions Judge, Shahjahanpur in Criminal Appeal No. 216 of 1981, acquitting the accused-appellants of the offence under Section 307 I.P.C. They had been convicted by the Assistant Sessions Judge, Shahjahanpur under Section 307 I.P.C. and each of them was sentenced to undergo five years' rigorous imprisonment by judgment dated 23.7.1981 passed in S.T. No. 188 of 1981. On their preferring Criminal Appeal, the impugned judgement can to be passed by the appellate court which has been challenged by the State by means of this appeal. The accused were three, namely, Ram Chand and his two sons, Satya Deo and Sant Kumar alias Budhi. Ram Chand died during the pendency of this appeal and respecting him it came to abate under dated 18.11.2003.
2. The relevant facts may be set out briefly. The injured Bishambhar Dayal PW 3 and the accused were residents of Village Basulia within Police Station Sehramau South, District Shahjahanpur. The incident took place on 5.2.1981 at about 6.15 P.M. near double storey quarter No. 90-A of Local Ordnance Clothing Factory. At the relevant time, Bishambhar Dayal was employed in the said factory and lived in quarter situated in the Factory Estate. On close of working hours of the factory, he, seated on cycle driven by co-employee Hanif, was going home and reached south of road running east-west. At the same time, all the accused came on cycle and stayed at few paces north of him. They got down from the cycle. Satya Deo and Sant Kumar alias Budhi simultaneously fired one shot each from their country-made pistols injuring Bishambhar Dayal. Having sustained injuries, he fell down. Somehow he managed to get up and ran trembling towards south. He could cover a distance of few paces when accused Ram Chand fired shot on him. He covered some more distance towards north and fell down south of quarter of one Jagan Lal. The assailants managed to escape. Hanif, Brij Mohan and Ram Ratan PW 2 witnessed the assault.
3. Soon after, Radha Kishan PW 1 and Rajeshwari, brother-in-law and wife respectively of the injured, arrived at the scene. Bishambhar Dayal told them about the incident. He was taken to the Factory Hospital situate in the Factory Estate wherefrom he was rushed to the District Hospital, Shahjahanpur by ambulance. On 5.2.1981 at 8.30 P.M., Dr. C.P. Srivastava PW 7 examined him. On his person following injuries were found:
1. Multiple gunshot wounds of entry each 0.3 cm x 0.3 cm on the right side of face and neck distributed in the area of 19 cm x 16 cm. No blackening or charring.
2. gunshot wound of entry 6 cm x 5.5 cm on the right posterior lateral side of lower part of chest with inverted margins. Blackening present around the would. Depth not probed.
4. As per the opinion of the Doctor, the injuries were fresh grievous in nature and caused by firearm. He was admitted in district Hospital, Shahjahanpur. The same day at 9.45 Dr. Satya Pal Surgeon, PW 5 performed operation on him in the opinion of Dr. Satya Pal, the injuries, but for operation, could be dangerous to life.
5. On 4.3.1981 Dr. P.S. Verma PW 4 Radiologist District Hospital Shahjahanpur subjected Bishambhar Dayal to X-ray examination under his supervision. Multiple radio opaque shadows were seen under chest, right side abdomen, right shoulder and face. These shadows could be caused by firearm.
6. Radha Kishan PW 1, on the basis of the information of occurrence derived from the injured, scribed he report and lodged the same at Police Station at 7.30 P.M. A case was registered and investigation followed at the hands of T.N. Singh S.I. PW 6.
7. The defence was of denial.
8. The prosecution in all examined seven witnesses in support of its case including three Doctors and the Investigation Officer. Radha Kishan PW 1 also offered formal evidence as he had reached the spot where Bishambhar Dayal was lying injured after the incident. According to him, on being inquired, Bishambhar Dayal disclosed the facts and circumstances of the incident to him. He took the injured to the hospital. The F.I.R. was logged by this witness. Since, however, Bishambar Dayal PW 3 himself is a witness, it is of no consequence as to what was told by him to this witness about the incident.
9. To come to the point, Bishambhar Dayal injured PW 3 himself tendered eye-witness account and came to be supported by Ram Ratan PW 2 named as such in the F.I.R. Though the trial judge convicted the accused relying on the testimony of the prosecution, but the appellate judge allowed the appeal, finding fault in the prosecution evidence.
10. We have heard Sri R.S. Maurya, learned A.C.A. from the side of the State in support of appeal and Sri P.N. Misra, learned counsel for the accused-respondents in opposition thereof. The submission from the side of the State is that the appellate judge fell in error in disbelieving the firm prosecution evidence on conjectural approach . On the other hand, the learned counsel for the accused-respondents has tried to stand by the reasoning given by the appellate judge in allowing the appeal and recording the acquittal.
11. The record of the case is before us and we have carefully considered respective arguments advanced from the two sides keeping in view the material and evidence on record. It was beyond the pale of doubt that the gunshot injuries were caused to Bishambhar Dayal PW 3 on the given date, time and place. Immediately after the incident, he was taken to the factory hospital situate in the Factory Estate itself, wherefrom he was referred to and examined in District Hospital on 5.2.1981 at 8.30 P.M.
12. The appellate judge disbelieved the prosecution case on the premise tat the F.I.R. was ante-timed. The finding is not sustainable at all. The informant Radha Kishan PW 1 happened to be a close relative of the injured who had reached the spot immediately after the incident. He was residing in the same double storey quarter No. 90-A with the victim within the Factory Estate. There was nothing unusual that he could reach there from that quarter. The shots had been heard by him in the quarter. There is nothing suspicious that about an incident taking place at 6.15 P.M., the report was lodged at 7.30 P.M. Proceeding with a pedantic approach, the appellate judge termed the F.I.R. to be ante-timed to discard the prosecution case in our opinion, the F.I.R. was a prompt and spontaneous document without there being anything suspicious about it.
13. The other reasoning adopted by the appellate judge that the participation of the old and aged accused Ram Chand with his own sons in the commission of this crime was improbable, could not be used to discard the prosecution case in toto. If his participation sounded to be doubtful, the benefit of the same could be afforded to him. In any case, it could not be an excuse to discard the prosecution case in respect of the other two co-accused. Ram Chand having since died, his participation or otherwise in the incident has no significance now.
14. We are of the opinion that the appellate judge discarded the testimony of the Ram Ratan PW 2 and Bishambhar Dayal injured PW 3 without any basis. True, they were cousins as well as colleagues, but that did not mean that they were deposing falsely. The name of Ram Ratan PW 2 was there in the F.I.R. also as an eye-witness. The F.I.R. was lodged with promptitude with no time gap for concoction or deliberation. No doubt, there was some animus between the two sides from before, but as the adage goes, the enmity is a double edged weapon which cuts both ways. The guiding factor is as to who could be aggrieved because of the previous background of enmity. It has come in evidence that in November 1978 one Ram Deo was murdered. Ram Autar, brother of the deceased (Ram Deo) lodged the F.I.R. against both Ram Ratan and Bishambhar Dayal, Ram Ratan PW 2 also admitted that police made investigation in the matter of murder of Ram Autar filed complaint in the matter. Ram Chand (deceased accused) as well as Ghanshyam (son-in-law of Ram Chand) appeased as witnesses of prosecution and gave evidence before committing Magistrate. Bishambhar Dayal PW 3, in the year 1978, was fired at and several persons were prosecuted for that offence. Ram Sewak, nephew of the deceased accused Ram Chand, was one of the accused in that case. It could not be said on the basis of the above background that Ram Ratan PW 2 or Bishambhar Dayal PW 3 had undergone such suffering that could temp them to implicate the present accused-respondents-Satya Deo and Sant Kumar alias Budhi in this incident of shooting. It does not stand to reason at all that giving clean chit to the real culprit(s), the accused-respondents were falsely roped in. We are of the firm view that the testimony of the two eye-witnesses Ram Ratan PW 2 and Bishambar Dayal PW 3 has been discarded by the appellate judge without any justifiable cause. Their evidence was firm and conclusive so far as the present accused-respondents are concerned. The charge of Section 307 I.P.C. was proved against them beyond blemish.
15. The learned counsel for the accused-respondents then invited our attention to an affidavit filed by the accused-respondent Sant Kumar alias Budhi and urged that in case of the grant of government appeal, the accused-respondents be not sent to jail. Instead, they may be sentenced with the imprisonment already undergone with some reasonable amount of fine. The copy of this affidavit was served on the State on 7.11.2003, but no counter affidavit has been filed. The prayer for leniency is based on these circumstances that the incident took place nearly 23 years back and the accused-respondents have settled in their life during this long period of time. The accused-respondent Sant Kumar alias Budhi remained in jail for a period of about two months and another accused-respondent-Satya Deo remained in jail for about six months. Though on medical examination, two gunshot injuries were found to have been suffered by Bishambhar Dayal and multiple radio opaque shadows were seen under the injuries, but Bishambhar Dayal was leading a perfectly normal life. There had been no other incident between Bishambhar Dayal and accused-respondents and that the accused-respondents Sant Kumar alias Budhi had two daughters to marry while another accused-respondent Satya Deo has one daughter to marry and there is no appropriate person to manage their affairs.
16. We have given our anxious consideration to this aspect of the matter. Though long passage of time cannot be a ground for reduction of sentence, but entire facts and circumstances of the case have to be considered in totality. The sentence should commensurate with the gravity of the offence. No formula of a foolproof nature is possible that would provide reasonable criterion of determining the just and proper punishment. In the present case, though presence of multiple radio opaque shadows were seen in the injuries of the victim, but he did not sustain any fracture etc. It also does not appear from the medical evidence that some internal damage of permanent nature was sustained by the victim Bishambar Dayal.
17. On cumulative consideration, we are in judgement that no useful purpose would be served by now sending the two accused respondents, Satya Deo and Sant Kumar alias Budhi to jail. It would neither work as deterrent nor would be corrective in nature. We would, therefore, convict the two accused-respondents- Satya Deo and Sant Kumar alias Budhi under Section 307 I.P.C. and sentence them to imprisonment for the period already undergone and a fine of Rs. 15,000/- to be paid by each of them. In default of payment of fine, each of them shall undergo rigorous imprisonment for two years. Out of the amount of fine, if realized, a sum of Rs. 20,000/- shall be paid as compensation to the victim Bishambhar Dayal, if he still survives. If he is dead, the amount of compensation shall be paid to his wife or to his other nearest relative. The remaining amount of fine of Rs. 10,000/- shall go to the State.
18. In the net result, we allow the Government Appeal No. 2826 of 1982. We set aside the judgement and order dated 9.8.1982 passed by the first appellate court in Criminal Appeal No. 216 of 1981, acquitting the accused-respondents Satya Deo and Sant Kumar alia Budhi. Both of them are convicted under Section 307 I.P.C. and sentenced to imprisonment for the period already undergone and a fine of Rs. 15,000/- to be paid by each of them within two months. In default of payment of fine, each of them within two months. In default of payment of fine, each of them shall undergo rigorous imprisonment for two years. Out of the amount of fine, if realized, a sum of Rs. 20,000/- shall be paid as compensation to the victim Bishambhar Dayal, if he still survives. If he is dead, the amount of compensation shall be paid to his wife or to his other nearest relative. The remaining amount of fine of Rs. 10,0000/- shall go to the State.
19. Judgment be certified to the lower court immediately for reporting compliance to this Court within two months from the date of receipt.