JUDGMENT Hon’ble Servesh Kumar Gupta, J. At the outset, it is pertinent to mention that during the pendency of appeal, appellant Kalyan Singh breathed his last, so his appeal stood abated vide order dated 13.6.2012 passed by this Court. As such, now only the appellant/accused Sher Singh is before this Court. 2. Heard Sri B.S. Parihar, Advocate for the appellant Sher Singh and Sri Vinod Sharma, Deputy Advocate General (Criminal) for the State as well as perused the entire material available on record. 3. This appeal has been preferred against the judgment and order dated 17/19.12.1998, rendered by learned Sessions Judge, Pithoragarh in S.T. No.5 of 1993, State Vs. Kalyan Singh and seven others. There were as many as eight accused, out of them, two accused, namely, Kalyan Singh and Sher Singh were found guilty for the offences under Section 307 and 307/34 IPC respectively, whereas rest of the accused, namely, Soor Singh, Pan Singh, Prem Singh, Umed Singh, Chan Singh and Laxman Singh were acquitted from all the charges levelled against them. The accused persons were tried against the submission of chargesheet no.3/91, pertaining to crime no.4/1991, relating to Patwari Circle ‘Bardakhan’, District Pithoragarh. 4. The FIR was lodged by PW3 Lal Singh, father of injured Vikram Singh on 20/21.4.1991 for the offences under Section 147/307/324 IPC. This FIR is Ex.A-2, the Chik report whereof is Ex.A-3. As per the prosecution version, the informant and all the accused persons hail from the same village ‘BAIDA’. The accused persons were grousing enmity from the family of victim from before, so they made an unlawful assembly on 18.4.1991 at about 8 PM and all pounced over the son of informant. The occasion was that when Vikram Singh (injured) went to fetch water, Kalyan Singh stabbed a blow of knife in the abdomen of victim while appellant/accused Sher Singh stabbed a blow of knife thereby hitting the forearm of the victim. The blow extended by Kalyan Singh was so fatal that the intestine of the injured protruded out. Rest of the accused were armed with Lathis, who also assaulted the victim. Injured Vikram Singh raised shrieks, hearing those Lal Singh and other people reached at the spot. They all found the accused persons beating Vikram Singh. The blow extended by Kalyan Singh was so fatal that the intestine of the injured protruded out. Rest of the accused were armed with Lathis, who also assaulted the victim. Injured Vikram Singh raised shrieks, hearing those Lal Singh and other people reached at the spot. They all found the accused persons beating Vikram Singh. Somehow, he was rescued from the clutches of the accused who left the spot hurling threat to kill the reporter and his family, as and when they found the occasion. The reporter thereafter went to headquarter of Patwari where he was advised to take the injured for the medical treatment. (In the rural areas of the State of Uttarakhand, the Patwari, Naib Tehsildar and revenue officials have been vested with the police power). Soon thereafter, the injured was taken to Primary Health Center, Lohaghat at 3:30 AM of the fateful intervening night, where after extending the primary treatment by the doctor, present over there, the injured was referred to higher center at Champawat. The injured was then brought at Champawat where he was properly treated and injury report dated 19.4.1991 at 10:30 AM was prepared. Injury report prepared at PHC, Lohaghat is Ex.A-7 whereas the same prepared at Champawat is Ex.A-6. The Investigating Officer took the bloodstained clothes of the injured in his possession and prepared recovery memo of the same which is on record. The I.O. also inspected the place of occurrence and prepared the site plan, which is Ex.A-4. After completion of investigation, a chargesheet was filed against the accused, which is Ex.A-5. 5. On submission of chargesheet, learned Sessions Judge, Pithoragarh framed charge against all the accused, which was abjured by them and the trial was claimed. 6. The prosecution has examined PW1 Vikram Singh, injured witness, PW2 Bahadur Singh, brother of injured, PW3 Lal Singh, father of injured, PW4 Ambi Lal, I.O. of the case, PW5 Dr. Pramod Kumar, who examined the injured at Champawat and PW6 Kharak Snigh, uncle of injured. 7. After the witnesses, the statements of the accused persons were recorded u/s 313 Cr.P.C. They denied the guilt and challenged the veracity of the witnesses, however no oral or documentary evidence was led by them in defence. 8. PW1 Vikram Singh, injured has deposed the presence of all the accused persons at the time of assault. 7. After the witnesses, the statements of the accused persons were recorded u/s 313 Cr.P.C. They denied the guilt and challenged the veracity of the witnesses, however no oral or documentary evidence was led by them in defence. 8. PW1 Vikram Singh, injured has deposed the presence of all the accused persons at the time of assault. He specifically mentions that accused Kalyan Singh and Sher Singh were armed with knives in their respective hands, while accused Prem Singh was having an iron rod, whereas other accused persons were having ‘Lathis’. Inter alia, he has stated that accused Sher Singh gave a blow of knife at his hand while Kalyan Singh inflicted three blows of knife upon him, he could save himself from two while one hit his abdomen. He shouted, attracting his father Lal Singh and uncle Kharak Singh as well as brother Bahadur Singh. He fell down on the spot, from where he was shifted to house and after placing him on a cot; he was carried primarily at Lohaghat and subsequently at Champawat. It has been in the evidence that the injured remained hospitalized for as many as eighteen days for his treatment. 9. PW2 Bahadur Singh and PW3 Lal Singh are respectively the real brother and father of the injured. They have also corroborated the version of the FIR as well as the evidence of injured in their respective depositions. 10. PW4 Ambi Lal is the I.O. of the case who, after completing the investigation, filed chargesheet against the accused. 11. PW5 is Dr. Pramod Kumar Karnatak, who at the relevant point of time, was posted as a Surgeon at P.H.C., Champawat. On 19.4.1991 at 10:30 PM, he had examined the injuries on the person of injured Vikram Singh, which are as under: - 1. “Stitched wound right upper forearm and elbow, 6 cm size, running obliquely downwards from cubital fossa to medical border of upper forearm. 2. Lacerated wound right lower pelvis 6 cm above mid inguinal point, measuring 3 cm x 2 cm, running obliquely, bowel and omentum are protruding out of the wound. 3. Linear contusion brown 2 in number, left side face, measuring 5 cm x 1 cm, 4 cm x 1 cm, running obliquely downwards, 2 cm below lower eyelid and 5 cm below lower eyelid respectively. 3. Linear contusion brown 2 in number, left side face, measuring 5 cm x 1 cm, 4 cm x 1 cm, running obliquely downwards, 2 cm below lower eyelid and 5 cm below lower eyelid respectively. Opinion- Injury no.2 is grievous in nature, can be caused by a sharp edged weapon, duration is less than 24 hours.” 12. PW6 Kharak Singh is again an eyewitness. He is the real uncle of the injured who saw that his nephew was lying on the earth being fatally wounded and all the accused persons were present there. Accused Sher Singh and Kalyan Singh were having knives in their respective hands and other accused persons were abusing Vikram Singh and his family members as well as threatening in sundry ways. 13. It has been argued on behalf of appellant that accused Prem Singh was allegedly having an iron rod but the medical officer has not reported any injury, likely to be caused by the said weapon. Although this argument is not so significant since Prem Singh has been acquitted by the trial court, nonetheless the several injuries, found on the body of injured are so explicit so as to advert the role of accused Sher Singh (sole appellant before this Court) amply clear. 14. That apart, the injuries mentioned in the injury reports of the injured Ex.A-6 and A-7 respectively abundantly make out the clear role of accused Sher Singh in committing the crime. Injury no.1, as mentioned in Ex.A-6, was inflicted leaving wound on the right upper forearm and elbow, which was 6 cm in size. The argument that the doctor at P.H.C., Champawat found it stitched, is of no avail to the defence, inasmuch as, it has been very clear that the injured was primarily carried away to the nearest hospital at P.H.C., Lohaghat, where the doctor, present over there, stitched the small wounds and extended primary treatment and in order to save the life of injured in respect of the injury sustained by him in his abdomen, referred him to a Surgeon, who was available at PHC, Champawat. Since the intestine of the injured had protruded out from his abdomen on account of injury inflicted by Kalyan Singh, it was proper on the part of the doctor, stationed at Lohaghat, to refer him to the Surgeon for proper medical treatment. Since the intestine of the injured had protruded out from his abdomen on account of injury inflicted by Kalyan Singh, it was proper on the part of the doctor, stationed at Lohaghat, to refer him to the Surgeon for proper medical treatment. There is nothing unusual in the medical reference, so made by the doctor, based at Lohaghat. 15. Besides, PW2 Bahdaur Singh is an eyewitness of the case, about whom the injured himself stated that he (Bahadur Singh) reached at the spot after hearing the screams. So, he was an eyewitness of the crime, at least when his brother was lying on the earth, being surrounded by the accused persons. The same is the evidence given by the PW3 Lal Singh and PW6 Kharak Singh. The injured narrated the entire incident to all these witnesses who had reached at the spot just within ½-1 minute of the incident and their evidence is reliable under Section 6 of the Evidence Act as res gestae. Therefore, the Court feels that there is no substance in the appeal. 16. However, the argument on behalf of the appellant that the injury inflicted by accused Sher Singh was only on the forearm and in case the accused was having any intention to kill the injured, then none prevented Sher Singh to have inflicted the repeated injuries on the vital part of the victim, has got some force. 17. It has also been argued that on the basis of evidence available on the record, ‘common intention’ shared by Sher Singh for committing the offence to the extent of Section 307 IPC, is not proved because nothing has come on record to prove that the accused had a pre-arranged plan to commit the murder of Vikram Singh. Had the accused nurtured an intention to commit the murder, then as many as eight accused persons, being armed with deadly weapons like knives, iron rod and Lathis, could have easily achieved their object, that too when the injured fell down on the earth after being fatally wounded. This argument appears to be somewhat convincing. So, the Court feels that taking the role of accused Sher Singh into consideration, his guilt can be reduced from the offence of Section 307/34 IPC to Section 324 IPC and his sentence can also be modified. 18. This argument appears to be somewhat convincing. So, the Court feels that taking the role of accused Sher Singh into consideration, his guilt can be reduced from the offence of Section 307/34 IPC to Section 324 IPC and his sentence can also be modified. 18. Learned counsel for the appellant Sher Singh has pleaded mercy of this Court upon the following grounds: - 1. The accused and the complainant/injured are resident of the same village 2. The incident is more than 21 years old. 3. All the more, accused Sher Singh is now an octogenarian, since he is at present 74 years of age and thus, he is now at the fag end of his life. 19. Now, at this stage, if the accused Sher Singh is sent to the prison, it will be too harsh for him to bear the pains of incarceration. So taking into consideration all these aspects, the sentence awarded to the appellant/accused Sher Singh u/s 307 IPC is modified; instead he is found guilty for the offence under Section 324 IPC and is sentenced to undergo imprisonment for 6½ months, which he has already undergone since 23.04.1991 to 5.11.1991, as per the records available. In lieu of reduction of his sentence, the accused is hereby awarded a fine of Rs.10,000/-, in default of which, he will undergo three months’ simple imprisonment. 20. This disposes of the appeal finally.