JUDGMENT Hon’ble Ramesh Sinha, J.—The present Criminal Appeal has been filed against the judgment and order dated 4.1.1982 and 6.1.1982 passed by Vth Additional Sessions Judge, Basti in Sessions Trial No. 275 of 1978 convicting the appellant Nos. 1, 2 and 7 under Section 148 I.P.C. and sentencing them to 1 ½ years R.I., appellant Nos. 3 to 6 under Section 147 I.P.C. and sentencing them to six months R.I., appellants Nos. 1, 2 and 7 are further convicted under Section 307/149 I.P.C. and sentence to undergo seven years R.I. and a fine of Rs. 2,000/- each, appellant Nos. 3 to 4 are convicted under Section 307/149 I.P.C. and sentence to undergo three years R.I. and applicant Nos. 4 and 5 convicted under Sectioin 307/149 I.P.C. alongwith to 5 years R.I. and fine of Rs. 2,000/- each and in default of payment further undergo six monthsR.I. and further convicting all the appellants under Section 323/149 I.P.C. and sentencing them to undergo six months R.I., appellant No. 3 has been further convicted under Section 436 I.P.C. and sentence to undergo three years R.I. 2. The prosecution case in brief is that the complainant is resident of Village Nadya Police Station Rudhauli, District Basti. It is stated that there was a Shesam tree belonging to one Ori Kahar. The accused Ramkuber, Bhuwal, Roodal, Sant Ram, Chanika who are resident of Village Nadya Mangal, R/o Village Nishar and Bangali R/o Village Ramwapur on 20.3.1976 at about 4:00 p.m. started to cut down Sheesam tree belonging to Ori on account of the enmity as there was some litigation. The accused were armed with Gun, country made pistol and Lathi and Ori was protesting against the accused from cutting down the said Sheesam tree and on the alarm raised the complainant Haridwar Pathak, Abdul Aziz, Abdil Khaliq, Abdul Samshad, Mustfa, Smt. Azora W/o Ori, Bismilla, Sail Mohammad, Ram Sumer and many others of the village reached there and resisted from cutting the said tree. The accused thereupon fired by country made pistol and gun on the witnesses and they also assaulted the witnesses with lathi. Thereafter the accused had set ablaze the Ghari of Ori in which cattle were tethered due to which Ori suffered a loss to the extent of Rs. 400/-. The accused Ram Kuber was armed with gun and accused Bhuwal and Bangali were armed with countrymade pistol. Thereafter the accused had set ablaze the Ghari of Ori in which cattle were tethered due to which Ori suffered a loss to the extent of Rs. 400/-. The accused Ram Kuber was armed with gun and accused Bhuwal and Bangali were armed with countrymade pistol. The complainant Abdul Khaliq, Mustfa, Abdul Samad, Smt. Azora, Singri and Smt. Shanti received gunshot injuries and the witness Bisalat has received injuries from lathi. The injured were medically examined, who are as under : Examined On 21.3.1978 at 1:30 a.m. Abdul Khaliq aged about 30 years S/o Sabir Ali Vill. R/o Nadya P.S. Rudhauli (Basti) B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali M.I.: A black mole face left side 2 cm lateral to eye Inj: (1) G.S.W. entrance 0.6 cm x 0.2 cm x skin deep face left side 2 cm super lateral to angle of lips. (2) G.S.W. entrance 0.2 cm x 0.2 cm x skin deep of top of right shoulder joint 3 cm lateral to neck. (3) G.S.W. entrance 0.3 cm x 0.3 cm muscle deep chest midline, 5 cm below root of neck. (4) G.S.W. entrance: 0.2 cm x 0.2 cm x skin deep chest right side just lateral to nipple (5) G.S.W. entrace 0.2 cm x 0.2 cm x skin deep, left index finger Injuries kept under observation ad. X-ray. No blackening tatooing or scorching Caused by firearm. Duration about 1/2 day back Examined Hardwar on 21.3.1978 aged about 45 years s/o Chandi Pd. Village Nadya, P.S. Rudhauli (Basti) B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole just behind left angle of jaw. Inj: G.S.W. 0.2 cm x 0.2 cm skin deep rt. Leg 21 cm below Simple, ad. X-ray short area. By firearm. Tatooing, blackening, scorching absent. Duration about 1/2 day back. Examined On 21.3.1978 at 2:00 a.m. Mohd. Mustfa aged about 65 years s/o Mansab Ali r/o vill. Nadya P.S. Rudhauli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole chest rt. side, 12 cm. Just above nipple. Inj: G.S.W. entrance 0.2 cm x 0.2 cm x skin deep, upper lip, rt. side 0.5 cm below nose. U.O. advised x-ray. No blackening, tattoing or scorching Caused by firearm. Duration about 1/2 days back. Examined On 21.3.1978 at 2:15 a.m. Basalat aged about 67 years s/o Guman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. side 0.5 cm below nose. U.O. advised x-ray. No blackening, tattoing or scorching Caused by firearm. Duration about 1/2 days back. Examined On 21.3.1978 at 2:15 a.m. Basalat aged about 67 years s/o Guman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole chest left side, 13 cm superamedial to nipple. Inj: (1) Lacerated wound 2 cm x 0.3 cm left side scalp, 12 cm above left ear. (2) Contusion 8 cm x 4 cm back rt. scapular region, red, oblique. (3) Contiusion 10 cm x 4 cm bak rt side 8 cm below scapula. Simple. Cause by blunt weapon. Duration about 1/2 day back. Examined On 21.3.1978 at 2:30 a.m. Singari aged about 35 years w/o Lalman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole left side forehead 1 cm above eyebrow. Inj: (1). G.S.W. (entrance) 0.2 cm x 0.2 cm x skin deep, forehead midline, 4 cm above root of nose. (2) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep rt. thumb dorsal x part, Ist phalanx. (3) G.S.W. (entrance) 0.2 cm x 0.2 cm x skin deep, rt. thigh, out and upper part, 35 cm above knee joint. U.O., ad x-ray. No tatooing, blackening, scorching. Duration about 1/2 day back. Caused by firearm. Examined On 21.3.1978 at 2:45 a.m. Ajora aged about 35 years w/o Ori R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A Black more rt. upper arm, outer part, 3 cm above elbow jt. No injury seen Examined On 21.3.1978 at 3:45 a.m. Shanti aged about 32 years w/o Rajman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. No. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A Black mole rt. cheek 4.5 cm from angle of lips. Inj: (1) G.S.W. entrance 0.2 cm x 0.2 cm x superficial rt upper arm upper and medial part, 14 cm above elbow jt. Simple. Cause by firearm. Duration 1/2 day back. Examined On 21.3.1978 Abdul Samad aged about 35 years w/o Ori R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black raised mole left temple, 3 cm from eye brow. Inj: (1) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep, top of left shoulder Joint overlying lat. end of clavicle. Examined On 21.3.1978 Abdul Samad aged about 35 years w/o Ori R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black raised mole left temple, 3 cm from eye brow. Inj: (1) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep, top of left shoulder Joint overlying lat. end of clavicle. (2) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep, overlying rt. clavicle, 8 cm from midline. (3) G.S.W. (entrance) 0.2 cm x 0.2 cm x muscle deep, abdomen left side, 3 cm above iliac crest, 13 cm lat. to amblicus. All U.O. ad X-ray. By firearm, No blackening, tatooing or scorching. Duration about 1/2 day back. 3. The complainant Hardwar Pathak lodged an F.I.R. on 20.3.1978 at Police Station Kotwali, District Basti and the injured were medically examined on the same night and the case was transferred to Police Station Rudhauli, the Police at Rudhauli Station investigated the case and submitted the charge-sheet against the accused persons. The accused Rudal, Sant Ram, Chanika and Mangal have been charged under Section 147, 307, 323 read with Section 149 and 436 I.P.C. The accused pleaded not guilty of the charges and stated to have been falsely implicated due to enmity. The accused Ram Kuber stated that he is village Pradhan and further stated that he has not given any land on Patta to the prosecution witnesses but has given the same to the person of Scheduled Caste and on account of which he has been implicated. It was pleaded by the defence that a dacoity was committed in the village at about 8 p.m. instead of lodging F.I.R. against the docoits the same has been lodged against the applicants. 4. The prosecution in order to prove its case has examined 10 prosecution witnesses, namely, P.W. 1 is Ori, who reached there after hearing the alarm, hence he is a witness of fact, P.W. 2 is Smt. Azora, P.W. 3 is Abdul Khaliq, P.W. 4 is Basalat and P.W. 5 is Mohd. Mustafa are the injured witnesses, who have supported the prosecution case, P.W. 6 is Haridwar Pathak the complainant and he is also an injured, who has narrated the entire prosecution story and proved written report Exhibit Ka-1. Mustafa are the injured witnesses, who have supported the prosecution case, P.W. 6 is Haridwar Pathak the complainant and he is also an injured, who has narrated the entire prosecution story and proved written report Exhibit Ka-1. P.W. 7 is Arvind Kumar, Investigating Officer of the case, who has recorded the statement of witnesses and visited the place of occurrence and has proved the charge-sheet Exhibit Ka-2, site plan Exhibit Ka.-3, recovery memo of earth Exhibit Ka-4, recovery memo of wads and pellets Exhibit Ka-5 and recovery memo of Lathi Exhibit ka-6. P.W. 8 is Dr. S.G. Tekriwal, who has examined the injuries of the injured and proved injury reports of Khaliq, Exhibit ka-7, Hardwar Pathak Exhibit ka-8, Mustafa Exhibit Ka-9, Basalat Exhibit Ka-10, Smt. Singri Exhibit Ka-11 Smt. Azora Exhibit Ka-12, Smt. Shanti Exhibit Ka-13 Abdul Exhibit Ka14. He further examined the injuries of P.W. 9 Paras Nath Yadav who is the Head Constable and proved the F.I.R. Exhibit Ka-15 and Chitthi Mazroobi from Exthibit Ka-7 to Exhibit Ka-14, copy of G.D. Exhibit-Ka-16. P.W. 10 is Diwakar Singh, who is the Investigating Officer who went on the spot and prepared the site plan Exhibit Ka-3, he has also proved the recovery memo of search of the house of the accused which is marked as Exhibit-Ka-19. 5. Heard Sri P. N. Mishra, learned Senior Advocate assisted by Sri B.G. Yadav, learned counsel for appellant and Sri Nikhil Chaturvedi, learned A.G.A. appearing for the state. 6. It has been contended by the learned counsel for the appellant that the origin of the prosecution case as it has been stated in the F.I.R. by the informant P.W. 6 is doubtful one as the tree belonging to Ori, P.W.-1 which was being cutting down by accused/appellants was standing on a Banjar land due to which the incident had taken place and accused further set ablaze the ghari of Ori who suffered a loss of Rs. 400/-, but from the evidence of the prosecution witnesses recorded by the trial Court, it is apparent that the tree in question had already been found to be cut down some days ago. 7. He further submitted that the P.W.-1 Ori could not establish his ownership of the said tree before the trial Court and did not even knew the plot number on which the said tree was standing. 7. He further submitted that the P.W.-1 Ori could not establish his ownership of the said tree before the trial Court and did not even knew the plot number on which the said tree was standing. From his evidence it further appears that he was also not present at the place of occurrence as he has deposed that before him no maar-peet had taken place. It was submitted that there was some dispute of the appellant Ram Kuber with the injured Abdul Khaliq and Ram Kuber had initiated some proceedings for cancellation of the Patta which was granted in favour of Abdul Khaliq which was subsquently cancelled at the instance of the accused Ram Kuber prior to the present incident on account of which there was enmity between them and on account of said enmity with Abdul Khaliq, therefore, he has been falsely implicated along-with other accused persons at the instance of Abdul Khaliq and his associates namely Basalat, Mustfa taking advantage of the P.W.-1 Ori, who did not have any right on the said tree which was standing on the Banjar in the village. 8. Learned counsel for the appellant next submitted that as per the evidence of P.W.-3 Abdul Khaliq and P.W.-5 Mohd. Mustfa the role of firing has been specified to accused Ram Kuber and Bhuwal, who are said to have fired on the injured persons. He submitted that out of eight injured persons, seven persons have received fire arm injuries which were found to be skin deep and were pellet injuries. It was further argued that the injuries which were received by the injured namely Abdul Khaliq, Haridwar Pathak, Mohd. Mustfa, Basalat, Smt. Singari, Smt. Ajora, Smt. Shanti and Abdul Samad, were shot from a distance of about 75-80 feet by appellant Ram Kuber from his gun and the said injuries received by the injured were moreover found to be on non-vital part of the body and the same was not opined to be eithter grievious or dangerous to life by the Doctor, or were such which in ordinary course of nature cause death of the injured. He urged that the injuries are pellet injuries and simple in nature. He pointed out that Smt. Ajora who too was medically examined no injury was found on her person which as is evident from her medical examination report. He urged that the injuries are pellet injuries and simple in nature. He pointed out that Smt. Ajora who too was medically examined no injury was found on her person which as is evident from her medical examination report. Thus, there is no evidence record which warrants the conviction of the appellants under Section 307 I.P.C. It was argued that if the prosecution case on its face value is taken to be true then the present case would not travel beyond Section 324 I.P.C. In support of his argument he has placed reliance on a judgment of this Court in Mobin v. State of U.P., 2001 A.Cr.R 345 wherein, it was held that in the absence of any evidence regarding the internal damage underneath the injury, it cannot be said that it was grievous. In the absence of these facts and circumstacnes the conviction of the appellant under Section 307 I.P.C. cannot sustained. He submits that the prosecution witnesses have stated that the Ghari of Ori was burnt by accused Rudal, who has died during the pendency of present appeal. He urged that out of the 7 accused persons accused Bangali, Bhuwal, Ram Kuber are said to armed with fire arm weapon and the accused persons Rudal, Sant Ram, Chanika, Mangal were armed with lathies and out eight injured persons only one injured received injuries by lathi namely Basalat, whose injuries were found to be simple in nature by the Doctor. The accused Chanika and Mangal, have also expired during the pendency of the appeal and the appeal with respect to them was ordered to be abated by this Court vide order dated 22.1.2007. He further drawn the attention of this Court on the point that so far as the accused Bangali is concerned who was armed with country made pistol, but no specific role has been assigned to him for causing injury to any of the injured persons as the specific role has been assigned only to accused Ram Kuber and Bhuwal by P.W. 3 Abdul Khaliq and P.W.-5 Mohd. Mustfa, and the participation of accused Bangali at the place of occurrence appears doubtful one, hence the finding recorded by the trial Court for convicting and sentencing him should be set aside as there is no cogent evidence against him. 9. Mustfa, and the participation of accused Bangali at the place of occurrence appears doubtful one, hence the finding recorded by the trial Court for convicting and sentencing him should be set aside as there is no cogent evidence against him. 9. He further submits that so far as accused Sant Ram is concerned, who was armed with lathi along-with other co-accused Rudal, Chanika and Mangal and cause injury only one injured namely Basalat who received injuries by blunt object and from his injury report it is apparent that injury received by him is simple in nature and the two other accused namely Chanika and Mangal who were armed with lathi have also died during the pendency of appeal, hence the participation of accused/appellant Sant Ram appears to be exaggerated one, hence he may be given benefit of doubt and be acquitted by this Court by setting aside his convection and sentence by the trial Court. 10. The learned A.G.A. on the other hand has argued that the three injured witnesses of the incident, who were produced before the trial Court have supported the prosecution story and deposed against the accused/appellants, hence their conviction and sentence by the trial Court is justified and no interference is called by this Court in the order of conviction and sentence passed by the Trial Court. 11. Considered the arguments advanced by the learned counsel for the parties. 12. From the evidence of the P.W.-1 Ori it is apparent that though he has claimed that the incident has taken place on account of the fact that the accused were cutting the Sheesam tree which belongs to him which was standing on the Banjar land, but he could not produce any evidence before the trial Court to show that the tree in question belongs to him or the land in which it was found to be standing belongs to him. Moreover, P.W.-1 Ori during the evidence before the trial Court gave a story of cutting of the tree and stated that the accused had burnt his Garhi in which cattle were tethered on account of the said act of the accused he also suffered a loss of Rs. 400/-. Moreover, P.W.-1 Ori during the evidence before the trial Court gave a story of cutting of the tree and stated that the accused had burnt his Garhi in which cattle were tethered on account of the said act of the accused he also suffered a loss of Rs. 400/-. Admittedly, P.W.-1 Ori in his evidence before the trial Court has stated that he has reached at the place of occurrence on the alarm raised and he did not see any person committing mar-peet with the injured witness or with his wife, hence he is not the witness of the occurrence as his presence on the place of occurrence is doubtful and he has not received any injury. Moreover, his wife Smt. Azora also did not receive any injury in the incident, though the other persons namely Haridwar Pathak, Abdul Khaliq, Basalat, Mohd. Mustfa, Smt. Singri, Smt. Shanti present at the place of occurrence received injuries. 13. It transpires that neither P.W.-1 Ori nor P.W.-2 Smt. Azora were present at the place of occurrence because if they had been present then they would also have also suffered some injuries at the hands of accused, as the preson who were present sustained injuries, hence the origin of prosecution story appears doubtful one and the incident appears to have taken place in some other manner and not as stated by the prosecution. Thus, the contention of the learned counsel for appellant that the tree in question was already cut down and the origin of the incident has been concealed by the prosecution appears to have force. 14. It is apparent from the prosecution case that seven persons have received injuries which shown that the incident did take place, but the manner in which it has originated is the question, therefore taking into account the injuries which have been suffered by the seven injured persons Abdul Khaliq, Hardwar Pathak, Mohd. Mustafa, Smt. Shanti, Smt. Azora, Smt. Singari, who have received injuries by firearm which are pellet injuries which have been attributed to the accused Ram Kuber and Bhuwal in the evidence of P.W.-3 Abdul Khaliq and P.W.-5 Mohd. Mustfa the participation of these two accused persons cannot be doubted as their presence at the place of occurance has also been established by the evidence of P.W. 3, 4 and 5 who are the injured injured witnesses. 15. Mustfa the participation of these two accused persons cannot be doubted as their presence at the place of occurance has also been established by the evidence of P.W. 3, 4 and 5 who are the injured injured witnesses. 15. The contention of the learned counsel for appellants that taking into account the evidence of P.W.-3 Abdul Khaliq and P.W.-5 Mohd. Mustafa the role of firing has been assigned to accused Ram Kuber and Bhuwal who were armed with fire arm weapon, if taken to be true then the injuries suffered by the injured shows that the injuries received by them are only skin deep and pellet injuires and the same were not opined either to grievous or dangerous to life by the Doctors, or were in ordinary course of nature cause death of the injured, hence no case is made out under Section 307 I.P.C. against the said two accused and the case would not travel beyond Section 324 I.P.C. is tenable one as it is also evident from the record that P.W.-8 Dr. S.G.Tekriwal who has examined the injured persons has not stated in his evidence before the trial Court that the injuries received by the injured persons are dangerous to life or were in ordinary course of nature cause death of the injured. Hence the conviction and the sentence of two appeallants Ram Kuber and Bhuwal under Section 307 I.P.C. read with Section 149 I.P.C. cannot be sustained, hence they are acquitted from the said charges and are convicted for the offence under Section 324/34 I.P.C. for two years R.I.with a fine of Rs. 15,000/- each. 16. So far as the appellant Bangali is concerned, who was armed with country made pistol his participation at the place of occurence appears doubtful as no specific role has been assigned to him by any of the injured witnesses and only general role was assigned to him and there is no cogent evidence against him, hence the benefit of doubt is given to him and he is acquitted from the charges levelled against him and order passed by the trial Court convicting and sentencing him is hereby set aside. 17. So far as the burning of the Ghari of the P.W.-1 Ori is concerned the role of setting ablaze was assigned to appellant Rudal, who has died during the pendency of appeal and the appeal with respect to him stands abated. 17. So far as the burning of the Ghari of the P.W.-1 Ori is concerned the role of setting ablaze was assigned to appellant Rudal, who has died during the pendency of appeal and the appeal with respect to him stands abated. 18. So far as the appellant Sant Ram is concerned who assulted with lathi along-with co-accused Rudal, Chanika and Mangal who have also died during the pendency of the appeal and appeal with respect to them also ordered to be abated. Moreover, the participation of appellant Sant Ram in the incident appears to be doubtful one as there appears some exagerrated version given by the Basalat against him which does not inspire confidence hence he is given benefit of doubt and he is acquitted from the charges levelled against him and order passed by the trial Court convicting and sentencing accused/appellant Sant Ram is hereby set aside. 19. The conviction of the accused/appellant Ram Kuber and Bhuwal by the Trial Court under Section 323/34 I.P.C. with six months R.I. is also confirmed. 20. Learned counsel for appellant lastly submits that the incident has taken place 38 years ago and the present appeal has come up for hearing after 32 years and the incident became old ans stale and the appellant No. 2 Bhuwal is aged about 57 years and appellant No. 7 Ram Kuber is aged about 70 years and they have already settled with their families and to send them jail after 38 years of the incident would be too harsh and further their families would be put to great hardships. The appellant have already been in jail for about one month in jail during trial. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as enhancement of the sentence. 21. Considering the facts and circumstances of the case and the submissions of the learned counsel for the appellants and looking to the age of the appellants and taking into account that the incident is 38 years old and the position of the appellants as on date, it is directed that rest of the sentence be converted into fine of Rs. 15,000/- each which shall be deposited by the two appellants Ram Kuber and Bhuwal in the Court of Chief Jucial Magistrate, Basti within three months from today, out of which Rs. 15,000/- each which shall be deposited by the two appellants Ram Kuber and Bhuwal in the Court of Chief Jucial Magistrate, Basti within three months from today, out of which Rs. 25,000/- shall be given in equal proportinate to 7 injured, if alive, or to their legal heirs. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by this Court. 22. In view of what has been discussed herein above, the present appeal stands partly allowed. 23. Office is directed to send a certify copy of this order to the, Chief Judicial Magistrate, Basti, for its compliance. —————