Vinod Prasad, J.;- Appellant Atar Singh was convicted u/s 307 IPC and was sentenced to seven years RI, with fine of Rs. 500/= and in default of payment of fine to undergo six months further RI, by IIIrd Additional Session's Judge, Bijnor, in S.T.No. 358 of 1980, which conviction and sentence has been challenged by him in the instant appeal. Unfolded prosecution allegations against the appellant, as was dictated orally at the police station Chandpur, district Bijnor, by the informant Chandra Pal Singh, PW3, on the basis of which chik FIR of Cr.No. 335 of 1980, u/s 307 IPC was registered at 6.30 a.m. on 9.8.80, were that, over a pen there, was enemity and civil litigation going on between appellant and informant, PW3. Initially appellant had feigned informant and his brother Syam Singh in a robbery case, two years prior to the present incident, but in that trial, they were acquitted by the court vide it's judgement and order dated 14.7.2011. This had further aggravated animosity between rival sides. Motivated by the rivalry, on the intervening night between 8/9.8.80 at 2 a.m., appellant along with three other socio criminises, trespassed into informant's pen, where informant was sleeping along with Ram Gopal Singh and Dilawar Singh. Their tramp sound woke up the informant , who recognized the appellant and his associates. Two of the tress-passers were armed with fire arms whereas rest of the two were armed with clubs. Appellant , after spotting informant, instigated his associates, on which informant rumpled or cockled himself over the his cot but was shot at sustaining gunshot injuries on front of his torso and upper limbs. Two other accused kept witnesses at bay by threatening them. After the incident accused rushed out of the pen and eloped in darkness but, while fleeing from the incident scene, they were spotted by Moti Singh and Malkhan Singh. Informant's associates, who were also sleeping in the pen had also recognized them and had witnessed the incident. Informant, in an injured condition, came to the police station Chandpur, at a distance of five miles, on a roadster, and orally dictated FIR, which was registered as crime number 335 of 1980, u/s 307 IPC, at 6.30 a.m. by Constable Shyam Babu, PW2, by sketching Chick FIR, Ext. Ka2 and GD entry, Ext. Ka3. Informant, in an injured condition, came to the police station Chandpur, at a distance of five miles, on a roadster, and orally dictated FIR, which was registered as crime number 335 of 1980, u/s 307 IPC, at 6.30 a.m. by Constable Shyam Babu, PW2, by sketching Chick FIR, Ext. Ka2 and GD entry, Ext. Ka3. SI Yogendra Pal Singh,PW5, in whose presence crime was registered, commenced investigation into the crime, penned down investigatory statements of the informant injured , came to the scene of the incident and sketched site plan map, Ext.Ka4, at the pointing out of witness Ram Gopal Singh. I.O. also raided appellant's house but could not apprehend him. Lantern , which was alleged to have been lighting during the incident was seized by the I.O. through seizure memo Ext. Ka5.Blood stained and plain earth, material Exhibits 1 and 2, eleven card board wads, small and big pellets, strings of cot, which all were material exhibits 3,4,5 & 6, were collected by the I.O. by preparing seizure memo Ext. ka 6. Concluding investigation I.O. had charge sheeted the appellant vide Ext. ka 7. Dr. Ram Kumar Gupta, PW1, had medically examined injured informant on 9.8. 80 at 7 a.m. and had prepared his medical examination report Ext. ka 1 and had noted following injuries on his person:- Ante Mortem Injuries INJURIES:- 1. Lacerated 4 wounds ( rounds) 1/10"x1/10"x 1/10" on the front of root of neck in an area 2-1/2"x2-1/2" along with post traumatic marginal swelling around the wounds of post traumatic emphysema 4"x4". Difficulty in breathing. 2. Firearm wounds 4 in number on Rt. side chest 1/10"x1/10"x 1/10" in an area of 2"x 2", 2-1/2" above the right nipple of 4-1/2" below the top of right shoulder, two wounds out of 4 are scorched in ( Blackening of skin) along with marginal swelling. 3. Three firearm wounds 1/10"x1/10"x 1/10" on the right upper arm, 7" below the top of shoulder, 1/4" apart ( two on the inner aspect) & one on the outer aspect. 4. Firearm wounds 32 in number on the right forearm back and inner aspect and two on the front aspect 1-3/4" above the wrist joint, 1/10"x 1/10" as lacerated wounds, in few scorching present and at place small contusions present, bleeding. There post traumatic swelling 6"x8" circumference. ( Adv. X-ray). 5. 4. Firearm wounds 32 in number on the right forearm back and inner aspect and two on the front aspect 1-3/4" above the wrist joint, 1/10"x 1/10" as lacerated wounds, in few scorching present and at place small contusions present, bleeding. There post traumatic swelling 6"x8" circumference. ( Adv. X-ray). 5. Firearm wound 1/10"x1/10"x 1/10" on the back of right hand 3" above the root of right little finger. 6. Four firearm wounds on left side chest, 2" above and inner to left nipple, in an area of 4"x3", size 1/10"x 1/10" scorching present and one firearm wound is 2" outer to the left nipple in the mid axillary line. 7. 26 Firearm wounds on the left upper arm, front and inner aspect, size 1/10"x1/10"x 1/10" , ( variable in two 1/5"x 1/5"x1/5") on lacerated wounds. 7 ( seven) pellets are palpable. The whole of left upper arm is having post traumatic swelling, few of the wounds are bleeding and few are scorched in ( Blackening of skin). ( Adv. X-ray). 8. Firearm wounds 22 in number on the lower half of left forearm in an ara of 7"x7" mostly the wounds are scorched and a few are oozing. Wounds are mainly on the back of the lower half of left forearm. In the middle of the back of the left forearm there is a collection of wounds ( confluence) size 1"x1". ( Adv. X-ray). There is post traumatic swelling size 1/10"x 1/10" . 9. 12 firearm wounds on the left knee joint aspect, 1/10"x 1/10" . Two wounds are bleeding rest are scorched one. The whole of the left knee joint is having post traumatic swelling. 10. Firearm wounds 1/10"x1/10"x 1/10" on the outer aspect of right thigh, 6" above the right knee basic oozing. 11. Firearm wounds 6 in number, size variable 1/10"x1/10"x 1/10" to 1/5"x1/5"x1/5" on the outer aspect of right lower leg. One pellet is palpable, bleeding present ( Adv. X-ray). Note- ( Advised X-ray chest, left upperarm, left knee and right lower leg and right forearm) upto Neck. Injuries are simple in nature at present, but may be supplementary by X-rays. Caused by some FIRE-ARM. Duration:- fresh. One pellet is palpable, bleeding present ( Adv. X-ray). Note- ( Advised X-ray chest, left upperarm, left knee and right lower leg and right forearm) upto Neck. Injuries are simple in nature at present, but may be supplementary by X-rays. Caused by some FIRE-ARM. Duration:- fresh. Scorched - that the upper surface of the wound black in colour ( -)." Charge sheeting of accused resulted in his summoning and finding his case triable by Session's Court it was committed to Session's Court for trial , where it was registered as S.T.No. 358 of 1980, State versus Atar Singh, and in the trial appellant was charged with offence u/s 307 IPC, by the trial judge, on 24.10.1980. Since accused abjured that charge and pleaded not guilty and claimed to be tried, therefore, to establish his guilt, his trial commenced. Prosecution, in it's endeavour to bring home accused guilt, tendered in all five witnesses, out of whom, Injured informant, Chandra Pal Singh, PW3, and Dalbar Singh, PW4 were two fact witnesses. Formal witnesses were Dr. Ram Kumar Gupta, PW1, Shyam Babu,PW2, and SI Yogendra Pal Singh, PW5. Under 313 Cr.P.C., accused denied incriminating circumstances appearing against him in prosecution evidences and pleaded his false implication. IIIrd Additional Session's Judge, Bijnor, after looking into the prosecution evidences, both oral and documentary, came to the conclusion that the prosecution had established it's charge of attempt to murder to the hilt against the appellant and therefore convicted and sentenced him, as has already been mentioned herein above, vide impugned judgement and order, hence this appeal questioning the said judgement. When the appeal was called out for hearing, no body appeared on appellant behalf to argue it. Perusal of appeal record indicated that notices were dispatched to the appellant but CJM, Bijnor, reported, on the strength of a certificate issued by Smt. Minakshi Devi, Gram Pradhan, village Panchayat Majhaula, that his whereabouts was not traceable since last twenty years and at the time when appellant had left the house he was already sixty years of age, which age appellant had mentioned in his statement u/s 313 Cr.P.C. also. Hence it was futile to send him repeated notices. Since this appeal cannot be kept pending on the dockets of this court, Sri Sandip Singh was appointed as amicus curie to assist the court. Hence it was futile to send him repeated notices. Since this appeal cannot be kept pending on the dockets of this court, Sri Sandip Singh was appointed as amicus curie to assist the court. In the backdrop of preceding facts, I have heard learned amicus curie for the appellant and Sri Patanjali Misra, learned AGA for respondent State. Sniping impugned judgement of conviction it is submitted that the incident occurred in dark hours of night, there would not have been any lunar light available to the accused to locate injured appellant nor injured and witnesses could have identified the assailants, and since crime was executed by unknown attackers, appellant was framed in because of previous enemity and strong motive possessed by the informant because of pending litigation. Medical evidence does not corroborate prosecution allegations of two gun shot fires because of dimensions of the injuries and therefore involvement of two or more assailants in the crime is mendacious. Caste rivalry was also one of reason to nail in appellant submitted learned amicus curie. No independent witness was examined by the prosecution and truncated evidences produced by it does not establish the charge were further arguments raised in support of the appeal. It was also submitted that no offence u/s 307 IPC is disclosed from the evidences tendered during trial and committed crime will not be out of the purview of 324 IPC. Lastly it was contended that if the appellant is not acquitted of the charged offence, then he should not be sent to penitentiary and a lenient view be adopted in penalising him, as some of the mitigating and mollifying circumstances favouring him are that, as of now he must be ninety years of age, he had no criminal proclivity, present was the his first offence and crime had occurred more than three decades ago. Per contra, learned AGA argued that the appellant was very well known to the injured informant and therefore there was no question of his mistaken identity. Medical report supports and authenticate prosecution allegations and there was no reason for the informant to spare his real assailants and rope in the appellant. Because of existing animosity, appellant had enough motive to do away with the informant. Incident occurred for some time and therefore recognition of the assailants posed no difficulty. Medical report supports and authenticate prosecution allegations and there was no reason for the informant to spare his real assailants and rope in the appellant. Because of existing animosity, appellant had enough motive to do away with the informant. Incident occurred for some time and therefore recognition of the assailants posed no difficulty. Both the fact witnesses are reliable and their testimonies are consistent without any damaging incongruities and inconsistencies and hence cannot be brushed aside. It was submitted that the appeal lacks merit and be dismissed. I have given a thought to the rival contentions and have analysed oral and documentary evidences available on record. Before embarking up contentious submissions, some admitted facts elicited from both the versions indicate that factum of incident has not been challenged by the accused appellant and so is the date time and place of the incident and hence these aspects of the prosecution allegations are established. It was also not challenged by the defence that injured had not sustained gun fire injuries. Prosecution has established this aspect by consistent and creditworthy evidences of two fact witnesses including injured informant and from the testimony of the doctor. Thus the core issue , which remains to be adjudged is as to whether it was the appellant and his associates who had committed the crime or someone else had done it? Vetting from the above angle it is apparent that there was rivalry between informant and appellant over a pen regarding which civil suit was pending in between them. Appellant had implicated informant and his brother in a case of robbery in which trial they were acquitted by a competent court. This must have rankled the appellant, who must have taken it to as an abash. This had given him sufficient motive to indulge into the crime. Inspite of lengthy cross examination defence was unsuccessful in dislodging prosecution case on these aspects. As narrated by the informant, prior to the actual incident he had woken up by tramp noise. He therefore had sufficient opportunity to identify the tress-passers. At that time a lantern was also flickering near the place and to identify a known enemy flickering of it's flame would be sufficient to recognize him. Accused was unsuccessful in discrediting witnesses on the available source of lantern light. I.O. had seized lantern by preparing Ext. ka 5. He therefore had sufficient opportunity to identify the tress-passers. At that time a lantern was also flickering near the place and to identify a known enemy flickering of it's flame would be sufficient to recognize him. Accused was unsuccessful in discrediting witnesses on the available source of lantern light. I.O. had seized lantern by preparing Ext. ka 5. No serious challenge was made by the accused to the said document except an unconvincing suggestion, and consequently recognition of the appellant would not have been difficult at all. There is another angle and that is, prior to resorting to fire, appellant had instigated his other socio criminises and from his voice also he could have been identified by the informant. Both the fact witnesses are one on the sequence of events and manner in which it occurred. They are consistent and corroborative of each other. PW4 had no qualms to frame in appellant as he had no axe to grind against him. Defence has not been able to shatter his depositions by bringing on record any plausible reason from him to feign his statement to implicate the appellant. Had informant desired to wreck vengeance from his enemies, he could have roped more persons rather than would be content with by naming the appellant only. No doubt enemity is a double edged weapon, but on that score only, entire prosecution version cannot be discarded. Injured had sustained all the injuries on front of his torso and therefore the assailants were in front of him. Nature of the injuries indicate that the shots were fired from a close range and therefore to identify a known person in the lantern light with close proximity was not difficult. Testimonies of prosecution witnesses are to be tested on the touch stone of their truthfulness and reliability and not on facetious arguments. Some natural and probable inconsistencies and incongruities are bound to occur in depositions of witnesses due to lapse of time and fading of some memory, but, if, on the substratum of the main allegations, prosecution witnesses are intact , there is no reason to throw over board their evidences. Courts should examine broad probabilities of prosecution evidences rather than swayed by insignificant contradictions especially when they are not fatal to the prosecution version. Courts should examine broad probabilities of prosecution evidences rather than swayed by insignificant contradictions especially when they are not fatal to the prosecution version. It is neither rule of law nor that of prudence that the prosecution evidences be discarded only on such insignificant truncated suggestions nor it can be ignored merely because witnesses were enemical to the accused. Both PW3 &4 were clear, cogent and unambiguous that the appellant was one of the shooters in the incident. It is because of this reason that accused had thrown paradoxical suggestions to theses witnesses. As noted above medical report and evidence of doctor are corroborative of prosecution version and it could not have been discredited by the accused. Injured informant had sustained as many as eleven gunshot wounds from his shoulder to stomach including upper limbs and doctor was unambiguous is stating that all these injuries could not have been caused by a single fire shot. There was no reason for the injured to spare his real assailant and fabricate a teradiddle. Thus on an overall analysis I am of the view that prosecution has successfully established participation of the appellant in the crime and there is paucity of reason to differ from conclusions arrived at by the learned trial Judge while convicting the appellant. Now turning towards the offence which has been committed by the appellant, it is evident that there is not sufficient evidence on record to hold appellant guilty for the charge of attempt to murder. There has been no repetition of shot by him. There is absolutely no evidence that the injuries sustained by the appellant were dangerous to life or grievous in nature. There is no x-ray report nor it was suggested to the doctor by the prosecution that the injuries were of such a nature. Doctor had reserved his opinion regarding nature of injuries as is clear from Ext. ka 1. He has opined therein "Injuries are simple in nature at present but may be supplemented by x-ray". In his examination-in-chief he had stated that chest injury could have been grievous. Since that injury has not been specified to the appellant therefore, in absence of repetition, it is unsafe to conclude that the appellant had the requisite mens rea to cause murder of the injured as rest of the injuries were on non-vital part of body on arm and hand. Since that injury has not been specified to the appellant therefore, in absence of repetition, it is unsafe to conclude that the appellant had the requisite mens rea to cause murder of the injured as rest of the injuries were on non-vital part of body on arm and hand. What can be said with some amount of certainty is that the assailant had an intention of causing hurt to the informant. Injured was not hospitalised and was discharged after his medical examination. This view is further strengthened by the fact that none of the two assailants, who were armed with blunt objects had assaulted the injured. What is transpired is that there was absence of motive to commit murder and consequently it is unsafe to convict the appellant u/s 307 IPC, as his committed crime will not go beyond the scope of 324 IPC, for which offence appellant should be held guilty. To this extent impugned judgement is indefensible and cannot be sustained. Coming to the sentence, since appellant should be about 92 years of age and incident occurred more than three decades ago and appellant had no criminal record, sending him to jail at this belated stage will not serve any purpose. In view of above, the period of sentence of imprisonment already undergone by the appellant will serve the ends of justice. Appeal is allowed in part. Conviction of the appellant under section 307 I.P.C. is scored out and instead he is convicted under section 324 I.P.C. for which offence, he is sentenced to the period of imprisonment already undergone by him. Appellant is on bail, he need not surrender, his bail bonds and surety bonds are hereby discharged. Let a copy of the judgment be certified to the trial court for it's intimation.