Judgment S.I. Jafri, J. 1. BUDHA, Zarnir,, Chhotey, sons of Qaiyam Uddin, Wali Uddin, Shakeel and Ibrahim have filed Criminal Appeal No. 387 of 1979 while Mukhtar and Shahzadey have filed appeal no. 407 of 1979 against their conviction and sentence recorded by Sri G. S. Sharma, 11 Additional District and Sessions Judge, Budaun by his judgment and order dated 25th January 1979. All the appellants were convicted under sections 333/149, 225, 147 and 148 IPC and they were sentenced to undergo 5 years' R. I. one year's R. I. one year's R. I. and 2 year's R. I., respectively. Zamir and BUDHA were further convicted under section 27 of arms Act and were sentenced to undergo R. I. for two year's each. Both the aforementioned appeals were connected by this Court as they arose out of the same judgment. 2. THE case of the prosecution is that Udaivir Singh Tomar PW 1, the Station Officer of Police Station Allahpur, District Budaun, received information at 9.50 A. M. on 24-10-73 that one Phulu wanted in a case under section 396 IPC by the Kotwali Police. Badaun, was present along with his associates in the house of Budha Zamir and Chhotey appellants in the town of Allahpur. On getting the information, Udaivir Singh Tomar left the Police Station along with Sub-Inspector Satendra Pal Tyagi four constables, including Sardar Singh PW 2 and after making necessary entry Ex Ka-1 in the General Diary of the Police Station regarding his departure for the arrest of Phulu and other miscreants. On the way he collected public witnesses Dwarika PW 3, Lalman PW 4 and others and reached the house of Budha appellant at about 10.30 P. M. and found the door of the aforesaid house closed. He noticed a lantern burniug inside the house and he also heard some whispering inside the house. On the direction of Udaivir Singh Tomar, one constable called out the name of Budha and Zamir appellants but no am responded horn inside the house. Thereafter two constables had scaled the wall of the house of Budha appellant on the direction of Udaivir Singh Tomar and they succeeded in opening the door from inside. On the direction of Udaivir Singh Tomar, one constable called out the name of Budha and Zamir appellants but no am responded horn inside the house. Thereafter two constables had scaled the wall of the house of Budha appellant on the direction of Udaivir Singh Tomar and they succeeded in opening the door from inside. THE police party entered the house and they had seen in the light of the lantern burning inside the house and by flashing their torches that accused Phulu and his two companions, were scaling the eastern wall in order to make good their escape. THE Station Officer Udaivir Singh Tomar alongwith his party tried to arrest them but he was challenged by all the appellants who struck lathis on the police party and had caused injuries to constable Sardar Singh, PW 2 and the public witness Dwarika PW 3. THE Station Officer had plied his cane in his defence at that time. Sardar Singh PW 2 on receiving the injuries fell down inside the house and his private gun Ex. 2 also fell on the ground from his hand which was picked up by Budha appellant, Zamir appellant had tried to load his own gun Ex. 1 which was snatched by the Station Officer Udaivir Singh Tomar and Dwarika Chaukidar, PW 3 but in the meantime accused Phulu and his companion made good their escape by scaling the wall. When Budha had tried to run away with the gun of constable Sardar Singh, his companions also started running who were chased by the police party and Budha fired a shot from the gun but it did not hit the police party. However, Budha could not re-load the gun and considering the critical situation he managed to run away from his house throwing the gun of Sardar Singh PW 2 on the ground. However, Mukhtar and Ibrahim appellants were arrested on the spot by the police but other accused had made their good escape from the place of occurrence. After the occurrence, the Station Officer had sealed the gun Ex. 1 which was snatched from Zamir appellant and the gun Ex. 2 of Sardar Singh, PW 2 in separate bundles and he also prepared recovery memos Exts. Ka-2 and Ka-3 respectively. He also took in possession of the lantern Ex. 3 and prepared memo Ex. Ka-4. 3. After the occurrence, the Station Officer had sealed the gun Ex. 1 which was snatched from Zamir appellant and the gun Ex. 2 of Sardar Singh, PW 2 in separate bundles and he also prepared recovery memos Exts. Ka-2 and Ka-3 respectively. He also took in possession of the lantern Ex. 3 and prepared memo Ex. Ka-4. 3. UDAIVIR Singh Tomar returned to the Police Station at 1 A. M. along with the injured Sardar PW 2 and Dwarika Singh PW 3 and also with Ibrahim and Mukhtar appellants. He recorded his chik report Ex. Ka-8 at the Police Station regarding the occurrence. The clerk constable Jaipal Singh also registered a case under sections 147/148/307/224/225/333 IPC and 25 Arms Act in the General Diary of the Police Station (entry Ex. Ka-8) on the basis of the aforesaid chick report against the appellant. Ibrahim and Mukhtar appellants were put in the Hawalat of the Police Statical. The gun Ex. 1 snatched from the appellant was an unlicensed gun and a case under section 25 of the Arms Act was also registered against Zamir and Budha appellants. The blood stained Bushshirt Ex. 4 which was stained with blood of Sardar Singh, PW 2 was also sealed at the Police Station and a memo Ex. Ka-5 was prepared by the Station Officer. Thereafter constables Sardar Singh and Dwarika were sett to the District Hospital, Budaun for the medical examination and their injuries were examined there. Dr. R. S. Tyagi, examined Dwarika at 7 A, M. on 25-10-73 and found the following injuries on his person :- 1. Abrasion 5 cm x 3 cm oblique on the left side of neck. 2. Abrasion 2 cm x 5 cm on the left angle of jaw. According to the opinion of the doctor the injuries were simple caused by friction. 4. DR. R. S. Tyagi also examined the injuries of Sardar Singh at 7.10 A. M. on 25-10-73 and he found the following injuries on his person :- 1. Lacerated wound 2.5 cm x .50 cm x scalp on the front of forehead 6.5 cm above the bridge of nose. 2. Lacerated wound 6 cm x .50 cm x scalp on the top of left side of hand. 3. Lacerated wound 2 cm x .50 cm x scalp on the left side of head just below injury no. 2. 4. 2. Lacerated wound 6 cm x .50 cm x scalp on the top of left side of hand. 3. Lacerated wound 2 cm x .50 cm x scalp on the left side of head just below injury no. 2. 4. Contusion 1.5 cm x 1 cm on the outer aspect of left arm above the elbow. 5. Abrasion 3 in number 0.75 cm x.50 cm each on the back of left hand. 6. Contusion 8 cm x 2 cm on the left side of back at shoulder blade. 7. Lacerated wound 1.7 cm x 2 cm on the left side of back below the shoulder blade. 8. Lacerated wound 1.5 cm x 0.75) cm x skin on the back of right index finger. 9. Abrasion 2 cm x.50 cm on the back of right hand. The investigation of the case was entrusted to Onkar Singh PW 5 Station Officer of Police Station Usehat by the order 28-10-73 of Circle Officer Sri Mohammad Ahmad Ex. Ka-11 on the report Ex. Ka-10 sent by Udaivir Singh Tomar, requesting that the investigation of the case be entrusted to some other Officer of a different Police Station. 5. ONKAR Singh PW 5 started investigation in the case on 2-11-73 and he recorded the statement of Udaivir singh Tomar PW 1 and other Police men at Allahpur. The next day he recorded the statement of Dwarika, PW 3 and Lalman, PW 4 and others. He also prepared the site plan Ex. Ka-12 the same day. He had recorded the statement of Constable Sardar Singh who was confined in the District Hospital, Budaun on 3-11-73. 6. DURING investigation, Budha, Waliuddin and Shafiuddin appellants had surrendered in court on 31-10-73. Chhotey appellant surrendered in the court on 8-11-73, whereas Shahzadey and Shakeel appellants had surrendered in court on 13-11-73 and 26-11-73 respectively. After completing the investigation, Onkar Singh PW 5 submitted the charge sheet Ex. Ka-13 against the appellants on 16-12-73 for their prosecution under sections 147/148/149/307/333/224/223 IPC. He also submitted separate charge sheets Ex. Ka-14 and Ka-15 the same day against appellants Zamir and Budha for their prosecution under section 25 of Arms Act after obtaining the sanction for their prosecution Ex. Ka-16 and Ka-17 from Sri R. C. Arora, the then District Magistrate, Budaun. 7. He also submitted separate charge sheets Ex. Ka-14 and Ka-15 the same day against appellants Zamir and Budha for their prosecution under section 25 of Arms Act after obtaining the sanction for their prosecution Ex. Ka-16 and Ka-17 from Sri R. C. Arora, the then District Magistrate, Budaun. 7. THE accused pleaded not guilty to the charge and stated that they were falsely implicated in the case on account of enmity. However, they had examined Ram Lal Pathak DW 1, Record Keeper of Police Office Budaun. He is a formal witness who has proved General Diary entries Ex. Kha-2 and Kha-3 dated 24-10-73 of Police Station Allahpur. They further stated that they were falsely implicated in the case on account of village partibandi. Ibrahim and Mukhtar Ahmad appellants had denied their arrest from the place of occurrence. They further stated that they being neighbours of Budha and Zamir appellants were called at the Police Station next day of the occurrence and when they refused to give evidence against Budha and Zamir on asking of the Police, they were falsely implicated in the case. 8. THE trial court after considering the entire evidence produced in the case came to the conclusion that the prosecution has succeeded in proving the guilt of the accused beyond any reasonable doubt and the accused were, therefore, convicted and sentenced as stated above. However, the trial court acquitted the appellants on the chargez under section 307/149 and 224 IPC. In support of the prosecution case in all 5 witnesses were examined and out of them Station Officer Udaivir Singh Tomar PW 1, constable Sardar Singh PW 2, Dwarika PW 3 and Lalman PW 4 were examined as eye-witnesses of the occurrence. 9. UDAIVIR Singh Tomar PW 1 is the Station Officer of Police Station Allahpur. He has narrated the entire occurrence in detail. His evidence is substantially corroborated by the evidence of Sardar Singh PW 2 and Dwarika PW 3. Lalman PW 4 had partially corroborated the prosecution case and, therefore, he was treated hostile. 10. 9. UDAIVIR Singh Tomar PW 1 is the Station Officer of Police Station Allahpur. He has narrated the entire occurrence in detail. His evidence is substantially corroborated by the evidence of Sardar Singh PW 2 and Dwarika PW 3. Lalman PW 4 had partially corroborated the prosecution case and, therefore, he was treated hostile. 10. UDAIVIR Singh, PW 1 deposed that on getting the secret information at 9.50 P. M. on 24-10-73 that Phulu, a wanted criminal in a case of dacoity with murder of P. S. Kotwali, Budaun was present alongwith his associates in the house of Budha appellant, he left the Police Station alongwith constable Sardar Singh PW 2 and three other constables for giving raid at the house of Budha appellant after making the necessary entry in the General Diary of the Police Station. He picked up witnesses, Shaukat, Dwarika, Moti, Ganga Ram, Lalman and Karan on way to the house of Budha appellant and reached there at about 10.30 P. M. He found the door of the house of Budha closed from inside. There was light inside the house and some talk was going on inside the house. On his instructions, one constable had called Zameer and Budha appellants to open the door whereupon all of a sudden calm prevailed inside the house but some whispering was heard. He, therefore, immediately directed his two constables to climb the wall of the house and by entering the house to unchain the door from inside. The constables crossed over the wall of the house and succeeded in opening the door of the house from inside. He along with the police party had entered the house where he had seen Phulu accused along with his two companions coming out from the verandah and going to the court yard in the light of his torch and the burning lantern of the house. He had also noticed Phulu and his two companions making good their escape by the scaling the eastern wall of the house whereupon he tried to arrest them but the accused Budha, Zamir, Chhotey, Shakil, Shahzade, Waliuddin, Ibrahim and Mukhtar had challenged him and they had attacked the police party with their lathis and he had plied his cane in defence. Waliuddin accused had struck a lathi blow on the: head of Sardar Singh constable and he fell down on receiving the said injury and he was, then, assaulted by lathis by other accused. Zamir accused was armed with a gun and tried to shoot us but he, Dwarika Chowkidar and one of his constables succeeded in capturing Zamir and snatching his gun from his hands and at the very moment Budha accused armed with the gun of Sardar Singh constable and his companions go Zamir freed from his custody and Phulu and his two companions climbed the wall of the house and had run away. He further stated, he and his men chased them whereupon Budha accused had pointed his gun towards him and fired a shot but it did not hit us. He further stated that he and his men did not give any opportunity to Budha accused to fire again, Budha accused had thrown his gun and ran away towards fields but he and his constables had succeeded in capturing Mukhtar Ahmad and Ibrahim appellants on the spot. He further stated that he prepared the recovery memos Exts. Ka-2 and 3 regarding the gun Ex 1 snatched from Zamir accused and the gun of Sardar Singh constable. He had, then sealed the two guns there. He also stated that Sardar Singh constable and Dwarika chaukidar had received injuries by the hands of the accused. He also deposed that after the occurrence he returned to the police station along with the two injured, Sardar Singh and Dwarika. the arrested accused Mukhtar and Ibrahim and also the aforesaid guns and the lantern. He further deposed that he himself wrote down the report Ex. Ka-8 of the occurrence in the chick register at the Police Station and the clerk constable Jaipal Singh had registered the case in the General Diary of the Police Station against the appellants. He also deposed that he had sent Sardar Singh constable and Dwarika chowkidar to the District Hospital, Budaun for medical examination. The defence failed to point out any material discrepency in the evidence of Udaivir Singh Tomar to discredit his testimony. I, therefore, hold him a reliable witness. 11. SARDAR Singh PW 2 is an injured witness. His presence on the spot cannot be doubted. His name is also mentioned in the General Diary entry Ex. The defence failed to point out any material discrepency in the evidence of Udaivir Singh Tomar to discredit his testimony. I, therefore, hold him a reliable witness. 11. SARDAR Singh PW 2 is an injured witness. His presence on the spot cannot be doubted. His name is also mentioned in the General Diary entry Ex. Ka-1 regarding the departure of the police party from the police station to the house of Budha appellant headed by Udaivir Singh Tomar, Station Officer of Police Station Allahpur. His presence along with the police party is also probable. He has substantially corroborated the statement of Udaivir Singh Tomar. PW 1. He was posted as police constable at Police Station Allahpur on the day of occurrence but at the time of his deposition before the trial Court he had retired from police service and he was living in village Karkora, P. S. Golavathi, District Bulandshahr In his deposition, he had given his age as 70 years, he had stated that at about 9.30 P. M. in the month of October 1973, he had gone with the police party, headed by Station Officer Udaivir Singh Tomar to the house of Budha and Zameer accused with his licensed gun. The door of the house of Budha was found closed from inside and when the door was not opened from inside, two constables under the direction of the Station Officer had scaled the wall of the house and unchained the door from inside. He further stated on the opening the door, police party entered the house and made alarm whereupon the miscreants who were inside the house began to run and he was given lathi blows outside the house. He further stated that accused Waliuddin had first assaulted him with lathi and his gun had fallen down from his hand and Budha accused had picked up his gun and he was chased by the police party. He further stated that on his, falling down, he was also beaten with lathis by the accused. He further stated that Zameer accused had a gun at that time but could not say what happened to his gun. He further deposed that he had heard one gun shot after the running of the accused but he could not say by whom it was fired. He also stated that two persons were arrested on the spot. He recognised his gun Ex. He further deposed that he had heard one gun shot after the running of the accused but he could not say by whom it was fired. He also stated that two persons were arrested on the spot. He recognised his gun Ex. 2 in the court. He also stated that there were 10 or 11 persons in the house and the police men had also torches with them. He named six accused amongst the miscreants, viz. Wali Uddin, Chhotey, Zamir, Budha, Mukhtar and Shakil. He further stated that his uniform shirt Ex. 4 was stained with blood at the time of occurrence and he remained in the hospital in connection with treatment for about 9 months. The evidence of SARDAR Singh inspires confidence. There is nothing material in his evidence to disbelieve him. He has fully corroborated the evidence of Udaivir Singh Tomar on material points and I also hold him to be a reliable witness. 12. DWARIKA Chaukidar PW 3 is also an injured witness. His presence along with the police party is probable. He is a resident of village Sanjarpur, P. S. Allahpur and at the time of occurrence, he was serving as private chowkidar in the market of Allahpur. He deposed that 4 or 5 years before at about 10 P. M., he was taken by police for raiding the house of Budha accused in connection with the arrest of Phulu accused. He' has fully corroborated the statement of Udaivir Singh Tomar PW 1 and he has also named all the appellants amongst the miscreants who had attacked the police party while coming out from the house of Budha appellant. He had further deposed that Ibrahim and Mukhtar were arrested by the police on the spot at a distance of about 10 to 15 paces from the house of Budha accused. He further deposed that he had known all the appellants from before the occurrence. It was also stated by him that he and Sardar Singh constable were beaten by the accused and they had received injuries which were examined in the hospital. Dwarika is an injured witness and his presence on the spot is quite probable. He is also an independent witness. Nothing material has been brought on record by the defence to impeach his credit. His evidence is therefore, quite reliable and trustworthy. 13. Dwarika is an injured witness and his presence on the spot is quite probable. He is also an independent witness. Nothing material has been brought on record by the defence to impeach his credit. His evidence is therefore, quite reliable and trustworthy. 13. LALMAN, PW 4 belongs to the town of Allahpur and he has been declared hostile though he has partially supported the prosecution case. In his examination in chief he has stated that mare than 5 years before, at about 9 P. M., he was taken from the way by Bara Daorga and Chhota Daroga of his police station. The Sub Inspector told him to accompany him to the house of Waliuddin accused for arresting a person there. He reached the house of Budha accused in the company of police party including Dwarika Chowkidar. The door of the house of Budha was closed from inside. It appeared that some persons were inside the house of Budha and there was also light of the lantern inside. The police men asked to open the door but the door was not opened. Under the direction of the Station Officer,, constables scaled the wall of the house and they had unchained the door from inside and the police party including him entered the house. The police men had torches and the miscreants had run helter and scalier and marpit stanted but he could not see who beat whom. He stated that he could identify only Wali accused amongst the persons who escaped from the house and police men chased them but no one could be arrested on the spot. It was deposed by him that the gun of Sardar Singh was found there lying on the ground which was taken by the Daroghaji and none amongst the miscreants had picked: the aforesaid gun. He further deposed that he could not see if Daroghajii had snatched something from any accused. 14. AS stated above, Lalman PW 4 was declared hostile by the prosecution. He has partially corroborated the prosecution case but it appears that he was won over by the accused who were admittedly his co- villagers. He further deposed that he could not see if Daroghajii had snatched something from any accused. 14. AS stated above, Lalman PW 4 was declared hostile by the prosecution. He has partially corroborated the prosecution case but it appears that he was won over by the accused who were admittedly his co- villagers. It was contended by the learned counsel for the appellants that the story set up by the prosecution is not probable and in view of the acquittal of the appellants on the charges under section 307 read with section 149 IPC and 224 IPC, reliance cannot be placed for the conviction of the appellants on the evidence of the witnesses. It appears that tine trial court did not convict the appellants under sections 307/149 and 224 IPC as a matter of abundant caution. The acquittal of the appellants on the charges under section 307/149 and 224 IPC has not at all substantially affected the prosecution case. It was also urged that according to Udaivir Singh Tomar PW 1 the entire occurrence took place in the house of Budha appellant whereas according to Sardar Singh and Dwarika Chowkidar, they were assaulted by the appellants in the lane outside the house of Budha appellant. The aforesaid contradiction is of a minor nature which makes no material difference. Whether Sardar Singh and Dwarika were beaten inside the house or outside the door of the house in the Gali because it is quite probable that the assault started from inside the house and had continued outside of the house of Budha in the game transaction. On the whole, the evidence of Udaivir Singh Tomar is substantially corroborated by the evidence of two injured witnesses viz. Sardar Singh and Dwarika Chowkidar whose presence on the spot is quite probable and reliable. 15. HAVING carefully considered all the facts and circumstances of the case, I hold that the prosecution has substantially proved its case against the appellants beyond any reasonable doubt and the trial court has rightly convicted them as mentioned above. The order of conviction passed by the trial court deserves to be affirmed. 16. IT was next contended by the learned counsel for the appellants that the occurrence had taken place about 13 years ago and now the appellants are settled in life. The order of conviction passed by the trial court deserves to be affirmed. 16. IT was next contended by the learned counsel for the appellants that the occurrence had taken place about 13 years ago and now the appellants are settled in life. Some of them were subsequently married and they have been leading a peaceful family life and if they are sent to jail for their act which was committed about 13 years ago, their family would be ruined. IT was also submitted that the appellants are not previous convicts and they have already undergone about two weeks sentence in Jail. IT was further submitted that wounds of the injured persons must have been healed to a greater extent after a lapse of 13 years. I have given my anxious consideration to this aspect of the matter and 1 feel that substantial justice would be done if the appellants are sentenced to pay fine instead of sending them to jail to serve out the sentence for an occurrence which took place about 13 years ago. I, therefore, sentence the appellants to pay fine of Rs. 1,000/- each under section 333 read with section 149 IPC and also the period of sentence already undergone by them. In default of payment of fine, they will undergo fifteen months R. I. each. They are also sentenced to the period of imprisonment already undergone under sections 225, 147, 148 IPC. I further sentence Zamir and budha appellants to the period of imprisonment already undergone by them under section 27 of the Arms Act, 17. IN the result, the appeal is partly allowed. The conviction of the appellants under sections 333/149, 225, 147, 148 IPC recorded by the trial court are affirmed. The conviction of Zamin and Budha under section 27 of the Arms Act is also affirmed. The appellants are sentenced to pay a fine of Rs. 1,000/- each and the period of imprisonment already undergone by them under sections 333/149 IPC. IN default of payment of fine, all the appellants to undergo fifteen months R. I. each. They are further sentenced to the period of imprisonment already undergone by them under sections 225, 147, 148 IPC. Zameer and Budha appellants are further sentenced to the period of imprisonment already undergone by them under section 27 of the Arms Act. 18. IN default of payment of fine, all the appellants to undergo fifteen months R. I. each. They are further sentenced to the period of imprisonment already undergone by them under sections 225, 147, 148 IPC. Zameer and Budha appellants are further sentenced to the period of imprisonment already undergone by them under section 27 of the Arms Act. 18. THE appellants are allowed two months time to deposit the aforesaid fine after the receipt of the record from the High Court in the court below. Out of the fine deposited by the appellants Rs. 4000/- shall be given to the police constable. Sardar Singh PW 2 and. Rs. 1,000/- shall be given to Dwarika, Chowkidar PW 3 as compensation under section 357 Cr. P.C. THE remaining amount of Rs. 3,000/- shall go to the State Exchequer. In case of death of Sardar Singh PW 2 and Dwarika Chowkidar PW 3, the amount of compensation awarded to them shall be given to their heirs by the court below. The licensed gun Ex. 2 shall be returned to Sardar Singh PW 2 and in case of his death, the gun be given to his heirs. 19. SRI Shamshuddin Ahmad, the learned counsel for the appellants states that the appellants shall not treat the imposition of fine on them as enhancement of sentence. 20. THE office is directed to send the record of the case to the court of II Additional District and Sessions Judge, Budaun within 10 days from today. Appeal partly allowed.