JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. Heard Shri Shishir Pradhan, learned counsel for the appellant and learned A.G.A. and perused the record. 2. Instant appeal has arisen against the judgment and order dated 29.9.1997 passed by the learned Sessions Judge, Lakhimpur Kheri in Session Trial No. 226 of 1990, arising out of case crime no. 38/1989, under section 307 IPC, Police Station Hyderabad, District Kheri, whereby the learned trial court has acquitted the accused Lakhan and convicted the accused Mool Chand and Akhilesh under section 307 read with section 34 and sentenced them to undergo rigorous imprisonment of four years. 3. Feeling aggrieved appellants Mool Chand and Akhilesh preferred the appeal. Appellant Mool Chand died during the pendency of the appeal and his case was abated vide order dated 25.9.2014. 4. According to the prosecution version, complainant Babu Ram is resident of village Deuapur. House of one Ram Chand son of Thakur Prasad is situated towards north of his house after a lane. On 21.5.1989 Chheda Chamar came to the complainant Babu Ram, who is also pradhan of the village and complained that Mulai is filling foundation in the rasta which may cause inconvenience to the passerby. At about 07:00 PM Babu Ram went to the place where foundation was being filled where accused Mool Chand, Akhilesh and Lakhan met him. Mool Chand was armed with licenced gun while Akhilesh was armed with country made pistol and Lakhan was armed with lathi. Mool Chand asked Babu Ram as to why he has come? Who is he to decide the dispute? On exhortation Lakhan attacked the complainant from the back side. Accused Akhilesh and Mool Chand started firing with their country made pistol and rifle which hit Babu Ram. When Ram Autar and Ashok Kumar came to intervene they also received firearm injuries from the shots fired by the accused. On hearing the hue and cry Data Ram, Mahendra Pal and other residents came. Accused ran away. 5. A written report was scribed by Ram Naresh Verma which was handed over at Police Station Hyderabad on 21.5.1989 at 10:15 PM. Investigation was handed over to SI Naval Kishore Srivastava. Statement of witnesses were recorded. 6. On 22.5.1989, at 07:45 AM Dr. R.P. Pnadey Medical Officer Incharge Primary Health Centre, Gola examined the Babu Ram and found following injuries on his body. 1. Investigation was handed over to SI Naval Kishore Srivastava. Statement of witnesses were recorded. 6. On 22.5.1989, at 07:45 AM Dr. R.P. Pnadey Medical Officer Incharge Primary Health Centre, Gola examined the Babu Ram and found following injuries on his body. 1. Multiple gun shot wound of entry over area 10 cms x 8 cms on front outer and back of right forearm 4.5 cms. Above right wrist joint. Size varying of the wound 0.4 cm x 0.4 cm x miscle deep to 1 cm x 0.3 cm x superficial about twenty two in number. No blackening and charring present. Dry and clotted blood deposited around and wound. 2. Gun shot wound of entry three in number over an area of 4.5 cms x 1.5 cms on dorsal side of right index finger, size varying 0.4 cm x 0.4 cm x muscle deep to 0.5 cm x 0.3 cm x muscle deep. No blackening and charring was present. 3. Gun shot wound of entry two in number over an area of 1 cm x 0.5 cm. On dorsal side of right hand little finger in middle. Size varying 0.4 cm x 0.3 cm x muscle deep. 7. Injured Ram Autar was examined at 08:30 AM and following injuries were found on his body. (1) Gun shot wound of entry 0.5 cm x 0.4 cm x muscle deep on mid and front of chest 11.6 cms. Below episternum blackening and charring not present. Dry and clotted blood present around the wound clean and fresh blood present. (2) Gun shot wound of entry 0.4 cm x 0.4 cm x muscle deep on front outer side of right side abdomen 6 cms above right hip bone upper margin. (3) Fire arm abrasion 0.6 cm x 04 cm on front of tip of penis. (4) Multiple gun shot wound of entry over area 25 cms x 13 cms. On whole circumference right thigh 4.5 cms above right knee joint, size varying 0.4 cm x 0.4 cm x muscle deep to 0.3 cm x 0.3 cm x muscle deep about 10 in number. No blackening and charring present. (5) Multiple gun shot wound of entry over an area of 11 cms x 10 cms on front outer side of right leg 11 cm below right knee joint. No blackening and charring present. (5) Multiple gun shot wound of entry over an area of 11 cms x 10 cms on front outer side of right leg 11 cm below right knee joint. Size varying 0.4 cm x 0.4 cm x muscle deep to 0.3 cm x 0.3 cm x muscle deep about 4 in number. No blackening and charring present. (6) Multiple gun shot wound of entry over an area of 13 cms x 9 cms on inner back of left thigh 15 cms above left knee joint, size varying 0.4 cm x 0.4 cm x muscle deep to 0.4 cm x 0.4 cm x muscle deep about four in number. No blackening and charring present. 8. Ashok Kumar was examined at 08:15 AM and following injuries were found on his body. (1) Multiple gun shot wound of entry over area 12 cms x 12 cms inner back of right hand 10 cms below right shoulder joint. Size varying 0.5 cm x 0.5 cm x muscle deep to 0.4 cm x 0.4 cm x muscle deep in number fifty. No blackening and charring present. Dry and clotted blood present around the wound. 9. According to the opinion of the Doctor, all these injuries could have been caused by firearm. Duration was about day old. 10. During investigation the Investigating Officer also recorded the statement of the injured, eyewitness, sample of simple and blood stained earth were taken and sealed. Five tiklis of 0.12 bore were recovered from the spot. Blood stained clothes of injured were also recovered. After completing the investigation charge sheet was submitted against the accused. 11. Accused were charged under section 307 read with section 34 IPC. They denied the charges and claimed trial. 12. In order to prove its case prosecution has produced PW-1 Babu Ram complainant, PW-2 Ram Autar injured PW-3 Akhok Kumar injured who turned hostile PW-4 Data Ram eyewitness PW-5 S.I. Naval Kishore Srivastava Investigation Officer and PW-6 Dr. R.P. Pnadey. 13. After appreciating the evidence on record learned trial court has recorded a finding of acquittal of accused Lakhan. Learned tiral court convicted and sentenced the appellants. 14. Learned counsel for the appellant Akhilesh submits that the accused have been falsely implicated due to the enmity. There was no motive for commission of the offence. R.P. Pnadey. 13. After appreciating the evidence on record learned trial court has recorded a finding of acquittal of accused Lakhan. Learned tiral court convicted and sentenced the appellants. 14. Learned counsel for the appellant Akhilesh submits that the accused have been falsely implicated due to the enmity. There was no motive for commission of the offence. It is further submitted that there was no occasion for the complainant to reach at the spot. There was no premeditation of mind between the accused. It is further submitted that prosecution has failed to prove the case against the accused as injured PW-3 Ashok Kumar has turned hostile and has not supported the prosecution version. In the alternative learned counsel submits that it is a case which will fall under section 323 IPC as injuries were simple in nature. It is further submitted that the accused Akhilesh has already remained in jail for about six months and he may be released on the period already undergone by him in jail. 15. Per contra learned A.G.A. submits that the prosecution has proved the case beyond reasonable doubt. Accused Mool Chand and Akhilesh have fired upon the victim Babu Ram, Ram Autar and Ashok with an intention to kill them. Evidence of PW-1 Babu Ram and PW-2 Ram Autar establishes the commission of crime by the accused. Their testimony finding support from the statement of PW-6 Dr. R.P. Pnadey. It is further submitted that even if PW-3 Ashok Kumar was turned hostile but it does not adversely effects the merits of the case as the two other injured eyewitnesses have supported the prosecution version. Their evidence is wholly reliable. Their presence at the scene of incident could not be disputed. Even during trial no suggestion has been given that they have not sustained the injuries. It is further submitted that place of occurrence has not been disputed by the accused. Injuries were caused with an intention to kill. Learned trial court has already taken a lenient view by imposing a sentence of rigorous imprisonment for four years only. 16. At the very outset, it may be mentioned that admittedly PW-3 Ashok Kumar has turned hostile who has not supported the prosecution version. It is stated by him that he was under the effect of intoxication and could not see as to who has fired upon him. 17. 16. At the very outset, it may be mentioned that admittedly PW-3 Ashok Kumar has turned hostile who has not supported the prosecution version. It is stated by him that he was under the effect of intoxication and could not see as to who has fired upon him. 17. PW-4 Data Ram is an eyewitness who stated that he reached at the spot on hearing the sound of firing. He did not found the complainant at the spot. He saw Babu Ram in injured condition. Babu Ram told him that Mool Chand and Akhilesh have fired upon him. Then he went to the house of Mhaendra where he found Ashok Kumar and Ram Autar in injured condition. Statement of this witness is also full of contradictions which is not in consistence with the prosecution version. 18. Now there remains the statement of PW-1 Babu Ram and PW-2 Ram Autar. 19. Incident took place on 21.5.1989 at 07:00 PM while the first information report was lodged at the police station on the same day at 10:15 PM. Distance of police station from the place of occurrence is 5 Kms. First information report was scribed by Ram Naresh Verma. PW-1 Babu Ram has stated that the report was written by Ram Naresh Verma who is the maternal brother of PW-1 Babu Ram wherein the details of the incident have been narrated. PW-1 Babu Ram stated that he along with the injured went to the police station and handed over the report. Thereafter they went to PHC Gola where they were medically examined. It is settled legal position that a delayed FIR creates doubt about the authenticity of the prosecution version. Prompt FIR overrules the possibility of consultation and false implication. 20. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under :- "FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story." 21. In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under :- "..... first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused." 22. In Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained." 23. Hon'ble the Apex court in the case of Nanhe v. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story. 24. In this case first information report was lodged promptly. There was no unexplained delay which may create a doubt abut the promptness of the FIR or it may be presumed that the first information report was lodged after deliberations. 25. PW-1 Babu Ram has specifically stated that he has received firearm injureis. He went to the place where foundation was being filled. When he was coming back then he was attacked. He received the injuries in the lane in between his house and house of Rameshwar and Lakhan. Place of incident is his sahan Darwaja. 25. PW-1 Babu Ram has specifically stated that he has received firearm injureis. He went to the place where foundation was being filled. When he was coming back then he was attacked. He received the injuries in the lane in between his house and house of Rameshwar and Lakhan. Place of incident is his sahan Darwaja. PW-2 Ram Autar has specifically stated that when he reached at the spot and saw that Akhilesh and Mool Chand were firing from their firearm he and Ashok Kumar also went then they also received firearm injureis. Mool Chand fired from near the door of Lakahan. There is a distance of about 9 to 10 steps between the house of Babu Ram and Lakhan. Babu Ram was outside his chhappar. When he tried to enter his house then he received the firearm injureis. In the first information report also it is mentioned that when the complainant Babu Ram reached at the place where foundation was being filled Mool Chand questioned his authority. On his exhortation Lakhan assaulted him with lathi while Babu Ram came near his chhappar. Firearm shots were made by Mool Chand and Akhilesh and Babu Ram received firearm injuries. Ram Autar and Ashok Kumar also reached at the spot. They also received injuries. At this stage, it is also relevant that during the trial place of occurrence has not been challenged by the accused. There is no suggestion that the place of occurrence as shown by the Investigating Officer is changed from the version of the complainant babu Ram. 26. PW-1 Babu Ram has specifically stated that when he reached at the spot where foundations was being filled then Mool Chand asked him why he has come? Who is he to intervene ? Thereafter he exhorted. On his exhortation Lakhan attacked him by lathi, Akhilesh and Mool chand fired by their firearms. PW-1 Babu Ram has received as many as three firearm injuries on his body. While PW-2 Ram Autar has received six firearm injuries. PW-3 Ashok Kumar has received one firearm injury. According to PW-5 R.P. Pndey all these injuries could have been caused by firearms. Although, he has not written that the injuries was fatal but during the evidence he has stated that injuries were fatal in nature. While PW-2 Ram Autar has received six firearm injuries. PW-3 Ashok Kumar has received one firearm injury. According to PW-5 R.P. Pndey all these injuries could have been caused by firearms. Although, he has not written that the injuries was fatal but during the evidence he has stated that injuries were fatal in nature. Number of shots fired by the accused coupled with the injuries suffered by the injured clearly makes out a case that the injuries were caused with an intention to kill. PW-1 Babu Ram has specifically stated that he sustained the injuries by the firearms shots of Akhilesh and Mool Chand. An attempt was made by the accused to bring on record some enmity which could not be proved. PW- 1 Babu Ram was the pradhan of the village. In a natural course, when he received information that some foundation is being filled which may cause inconvenience to the passerby then, he reached at the spot, where accused did not like it. When the Babu Ram was coming back he was attacked in front of his door. When PW-2 Ram Autar and PW-3 also came to save him then fire were shot causing injuries to them. Statement of PW-1 Babu Ram and PW-2 Aram Autar are natural. PW-2 Ram Autar has stated that at the time of incident he reached at the spot after hearing the hue and cry. On the date of incident he had gone to market to bring the vegetables. When Mool Chand exhorted and Babu Ram started going to him house in front of his door he was shot by the accused Mool Chand and Akhilesh. Evidence of both the witnesses is natural. Learned trial court has acquitted the accused Lakhan which finding has not been challenged by the State. Evidence of PW-1 Babu Ram and PW-2 is wholly reliable which could not be disbelieved. 27. Learned trial court has rightly recorded a finding of guilt against the accused. 28. Another limb of the argument is that the case will fall under section 323 or 324 IPC as no grievous injury was found on the body of the injured. It is further submitted that no X-ray report or X-ray plate is produced by the prosecution. PW-5 Dr. Pandey has stated in his evidence that the injuries were such which could have caused the death. It is further submitted that no X-ray report or X-ray plate is produced by the prosecution. PW-5 Dr. Pandey has stated in his evidence that the injuries were such which could have caused the death. Further the number of shots and injuries sustained shows the intention of the accused. Intention could only be judged by the attending circumstances. Continuous firing was made by Mool Chand and Akhilesh resulting in injuries to three injured persons. Although no grievous injuries might have been caused to any of the injured but the intention of the accused was to finish the injured, hence, I am not impressed by the argument that the case will not fall under section 307 IPC. 29. Accordingly learned trial court has rightly convicted the accused under section 307 read with section 34 IPC and sentenced the appellant accused Akhilesh for four years rigorous imprisonment. Learned trial court has already taken a very lenient view which did not deserve any interference by this Court in appeal. 30. In Rajbala v. State of Haryana (2016) 1 SCC 463 Hon'ble the Apex Court has issued certain guidelines for the courts while sentencing an accused. It was held that :- "16. A court while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective." 31. Further in Abdul Waheed v. State of U.P. (2016) 1 SCC 583 it was held by the Apex Court that :- "Undue sympathy would do more harm to the criminal justice system undermining the public confidence in the efficacy of the system. It is therefore the duty of every court to award proper sentence having regard to the manner in which the offence was committed." 32. In Mofil Khan and another v. State of Jharkhand (2015) 1 SCC 67 , three judges bench of Hon'ble Apex court has held that :- "60. In the context of these turbulent social times, we cannot remain oblivious to the substantial suffering of the victims. It stands as a fact that criminal justice reform and civil rights movement in India has historically only paid considerably attention to the rights of the accused and neglected to address to the same extent the impact of crime on the victims. It is not only the victims of crime only that require soothing balm, but also the incidental victims like the family, the co-sufferers and to a relatively large extent the society too. The judiciary has a paramount duty to safeguard the rights of the victims as diligently as those of the perpetrators. 61. In Mahesh v. State of M.P. (1987) 3 SCC 80 , this Court has deprecated the lenient approach in imposition of the appropriate punishment and observed that it would be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with clear evidence and diabolic acts. 61. In Mahesh v. State of M.P. (1987) 3 SCC 80 , this Court has deprecated the lenient approach in imposition of the appropriate punishment and observed that it would be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with clear evidence and diabolic acts. This Court held that to award the lesser punishment would be to render the justice system of this country suspect due to which the common man would lose faith in courts. This Court approved the harshest punishment in such cases as here adopting the approach that the accused understands and the society appreciates the language of deterrence more than the reformative jargon. 62. In Sevaka Perumal v. State of T.N. (1991) 3 SCC 471 , this Court stated that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law, Society could not long endure under such serious threats and therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. 33. In view of the law laid down by the Hon'ble Apex Court sentence awarded to the accused appellant Akhilesh does not warrant any interference. Accordingly appeal is devoid of merit and is liable to be dismissed. 34. Appeal is dismissed. Judgment and order dated 29.9.1997 passed by the learned trial court is confirmed. Accused Akhilesh is on bail. His bail is cancelled and sureties are discharged. He should surrender before the learned trial court within a period of three weeks from today. In case, appellant did not surrender within this period, trial court shall issue process to ensure his arrest. 35. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.