JUDGMENT : 1. The assail in this appeal is to the judgement dated 31.3.1983 and order dated 2.4.1983 passed by Mr. S.S. Srivastava, Special Judge, Deoria in S.T. No. 132 of 1980 (State Vs. Ram Nain Singh & three Others) under Sections 323, 307, 34 IPC, whereby and whereunder accused-appellant Ram Prasanna Singh has been convicted under sections 307, 323 and 34 IPC and consequently, sentenced to four years rigorous imprisonment under section 307 IPC read with section 34 IPC and 6 months rigorous imprisonment under section 323 IPC. Both the sentences are to run concurrently. The other three accused (I) Ram Nain Singh (2) Ashok Singh and (3) Udai Pratap Singh were convicted under section 323 read with section 34 IPC but were acquitted for an offence under section 307 IPC. However, they were released on probation by granting benefit under Uttar Pradesh First Offenders' Probation Act, 1938. Hence the present appeal by only one convicted accused Ram Prasanna Singh. 2. Record reveals that an incident is alleged to have occurred on 2.3.1979 at around 7:30 am in village Rudrapur, District Deoria in which three persons from the side of informant namely (I) Ram Murti Singh (ii) Sukhraji and (iii) Ram Pyare Singh are alleged to have sustained injuries whereas (1) Ram Nain Singh and (ii) Tej Prakash who belong to other side are also alleged to have received injuries. 3. On account of aforesaid occurrence dated 2.3.1979, Doodhnath Singh (P.W.1) father of injured Ram Pyrare Singh, Ram Murti Singh and husband of injured Sukhraji, submitted a written report dated 2.3.1979 (Ext-Ka-1) around 9:30 am at Police Station-Rudrapur, District-Deoria, scribed by Sita Ram Singh giving a vivid description of above mentioned occurrence and also names of accused and injuries caused by them. At this time, he also deposited three cartridges which were accepted by Constable Moharrir Nagendra Singh. He, accordingly, prepared memo of same (Ext. Ka-6). 4. Above mentioned written report dated 2.3.1979 was entered in General Diary of Police Station Rudrapur on 2.3.1979 by Constable Moharir Nagendra Singh. The carbon copy of same is on record as (Ext.Ka-3). He thereafter scribed check F.I.R. Dated 2.3.1979 (Ext. Ka-2) which was registered as Case Crime No. 66 of 1979, under Sections 323, 504, 307 IPC, Police Station-Rudrapur, District-Deoria. 5. The carbon copy of same is on record as (Ext.Ka-3). He thereafter scribed check F.I.R. Dated 2.3.1979 (Ext. Ka-2) which was registered as Case Crime No. 66 of 1979, under Sections 323, 504, 307 IPC, Police Station-Rudrapur, District-Deoria. 5. As per aforesaid F.I.R. dated 2.3.1979, Doodhnath Singh is informant whereas (1) Ram Nain Singh son of Kali Charan Singh (2) Ashok Singh (3) Udai Pratap and (4) Ram Prasanna Singh sons of Ram Nain Singh have been nominated as named accused. 6. Prosecution story as emerging from F.I.R. dated 2.3.1979 has been meticulously narrated in paragraph 2 of impugned judgement rendered by Court below, which reads as under: “Briefly stated, the prosecution version as given in the written report Ex.Ka-1 of Doodhnath Singh S/o Sheo Prasad Singh, r/o village Samogar, P.S. Rudrapur, District Deoria, is that on 2.3.1979, at about 7:30 am, children of the house of accused Ram Prasanna Singh were beating his grandson, Shiv Kumar Singh and Doodhnath Singh's son Ram Murti Singh reached there and asked those children not to beat. At this, the accused Ram Nain Singh and his sons-Ashok Singh, Udai Pratap Singh and Ram Prasanna singh came armed with lathies and gun in the land of Doodhnath Singh situate towards the west of his house. The accused began to beat Ram Murti Singh with fists, kicks and butt ends of lathies. Doodhnath Singh and his son Ram Pyare Singh and wife and co-villagers Ramashanker Singh, Badedu Mallah and others arrived there and intervened. On getting an opportunity, the accused Ram Prasanna Singh fired upon Ram Murti Singh with his licensed gun in order to finish him. Ram Murti Singh received fire arm injuries in his right knee. Ram Murti Singh fell down on the ground. The accused then made their escape good towards their house. Ram Murti Singh, Ram Pyare Singh and Doodhnath Singh's wife received injuries. Doodhnath Singh took his injured son Ram Murti Singh on a cot upto Madanpur and from there to Rudrapur Hospital on a rickshaw. The condition of Ram Murti Sigh was serious. So, he was admitted in Rudrapur Hospital. 7. After F.I.R. dated 2.3.1979 was registered, Police of Police Station Rudrapur, District-Deoria prepared letters for medical examination of injured (Majroobi chitthi). Accordingly, all the injured were examined at Primary Health Centre (P.H.C.) Rudrapur, District Deoria, by P.W.-5 Dr. Y. P. Singh, Medical Officer, Primary Health Centre, Rudrapur, Deoria. So, he was admitted in Rudrapur Hospital. 7. After F.I.R. dated 2.3.1979 was registered, Police of Police Station Rudrapur, District-Deoria prepared letters for medical examination of injured (Majroobi chitthi). Accordingly, all the injured were examined at Primary Health Centre (P.H.C.) Rudrapur, District Deoria, by P.W.-5 Dr. Y. P. Singh, Medical Officer, Primary Health Centre, Rudrapur, Deoria. 8. As per injury report of injured Ram Murti Singh (Ext. Ka-7), he sustained following injuries:- 1. Four firearm wounds of entry in an area of 6 cm x 6 cm., measuring each about 1 cm x 1 cm x deep, on the outer part of right knee joint. Doubt of fracture underneath. Advised X-Ray. 2. Five fire-arm wounds of exit in the area of about 10 cms x 12 cms on the inner part of right knee joint, and the upper and inner part of right leg, measuring each about 1 cm x 1 cm except one in the centre, which is measuring about 2 cms x 2 cms. 3. Abrasion-3cms x 2 cms on the front and inner part of right knee joint. In the opinion of Doctor general Condition of the case 25 poor. Referred to the Superintendent, District Combined Hospital, Deoria (O.P.) FOR THE X-Rray (right knee joint, and to keep under observation for Injury Nos. 1 and 2. In the opinion of Doctor general Condition of the case 25 poor. Referred to the Superintendent, District Combined Hospital, Deoria (O.P.) FOR THE X-Ray (right knee joint, and to keep under observation for Injury Nos. 1 and 2. For injury nos. 1 and 2, X-Ray report is awaited. Injury No.3 is simple. Injury Nos. 1 and 2 caused by fire arm. Injury No.3. caused by friction with some rough surfaced substance. Duration-FRESH. 9. Injured Sukhraji sustained following injury as per her injury report dated 2.3.1979 (Ext.Ka-8). 1. Contusion 2 cms x 2 cms on the upper and outer part of left forearm. In the opinion of Doctor, the duration was fresh. It was simple and caused by some blunt weapon. 10. Another injured from the side of informant Ram Pyare Singh sustained following injury as per his injury report dated 02.03.1999 (Ext. Ka.-9) 1. Lacerated wound 2 cms x ¼ cm x skin deep on the right side of head, 7 cms above the mid of right eye-brow. In the opinion of Doctor, the duration was fresh. 10. Another injured from the side of informant Ram Pyare Singh sustained following injury as per his injury report dated 02.03.1999 (Ext. Ka.-9) 1. Lacerated wound 2 cms x ¼ cm x skin deep on the right side of head, 7 cms above the mid of right eye-brow. In the opinion of Doctor, the duration was fresh. It was simple and caused by some blunt weapon. In the opinion of Doctor, the duration was fresh. It was simple and caused by blunt weapon. 11. Two persons from other side, namely, Ram Nain Singh and Tej Prakash are also alleged to have sustained injuries in the same incident. They were also medically examined at Primary Health Centre, Rudrapur, Deoria, by P.W.-5 Dr. Y. P. Singh, Medical Officer, Primary Health Centre, Rudrapur, Deoria 12. As per medico legal report of injured Ram Nain Singh dated 02.03.1979 (Ext-Ka-6), he suffered following injuries: 1. Penetrating wound 1 1/2 cm x ½ cm x 1 cm deep lateral aspect on the left upper arm, 10 cm below the shoulder joint, oozing present. 2. Incised wound 3 cm x ½ cm x muscle deep lateral aspect on the left thigh, 18 cm below the iliac crest, clotted blood present. 3. Contusion 10 cm x ½ cm left side back on the chest, red colour. 4. Multiple contusions in an area of 6 cm x 4 cm back on the left side, chest colour red. In the opinion of Doctor, duration was about 8 hours. All injuries were simple in nature. 13. Similarly as per medico legal report of injured Tej Prakash dated 02.03.1979 (Ext.Ka-7), he sustained following injuries: 1. Complaints of pain left side buttock, but no external injury seen. 2. Traumatic swelling 1 ½ cm x 1 cm right side head, 2 ½ cm above the right eye-brow. In the opinion of Doctor, duration was about 8 hours. Injury was simple. 14. P.W.5 Sub-Inspector Laxman Pandey, who was posted at P.S. Rudrapur, District Deoria, was appointed as Investigating Officer. Accordingly, he proceeded with investigation of the case. He firstly undertook the formality of copying written report and F.I.R. in case diary and then proceeded to place of occurrence. He recovered pellets from place of occurrence and prepared it's recovery memo dated 2.3.1979 (Ext.Ka-5). On pointing of informant Dooth Nath Singh (P.W.1), he prepared site plan regarding place of occurrence (Ext. Ka.-4). 15. He firstly undertook the formality of copying written report and F.I.R. in case diary and then proceeded to place of occurrence. He recovered pellets from place of occurrence and prepared it's recovery memo dated 2.3.1979 (Ext.Ka-5). On pointing of informant Dooth Nath Singh (P.W.1), he prepared site plan regarding place of occurrence (Ext. Ka.-4). 15. At this stage, a written application dated 4.3.1979 was filed by accused Ram Nain Singh before Superintendent of Police, Deoria, praying therein that aforesaid application be referred to P.S. Rudrapur and directions be issued for lodging a case. On pointing of informant Dooth Nath Singh (P.W.1), he prepared site plan regarding place of occurrence (Ext. Ka.-4). 15. At this stage, a written application dated 4.3.1979 was filed by accused Ram Nain Singh before Superintendent of Police, Deoria, praying therein that aforesaid application be referred to P.S. Rudrapur and directions be issued for lodging a case. As the defence version of the occurrence is contained in above noted application, the same is accordingly reproduced herein under: ^^Lksok es] Jheku dIrku lkgc nsofj;kA Jheku] fuosnu gS fd ge izkFkhZ xzke lekxsj Fkkuk :nziqj ftyk nsofj;k ds jgus okys gS] gekjs ?kj ds ikl nw/kukFk flag dk edku gSA fnŒ2-3-79 bZŒ dks lqcg nw/kukFk flag ds ukrh f'kodqekj flag mez djhc nl lky o gekjs ukrh rst izdk'k mez djhc 9 lky ls gekjs njokts ds lkeus >xM+k o ekjihV gksus yxh geus igqWpdj NqM+k;k vkSj f'kodqekj dks MkW f'kodqekj jksrs gq, vius ?kj x;k fd FkksM+h gh nsj ckn jkeewfrZ flag Hkkyk nsdj iw= nw/kukFk iq= f'koizlkn flag Qjlk ysdj o jkeI;kjs flag iq= nq/kukFk ykBh ysdj vk x;s vkSj ges ykBh Hkkyk Qjlk ls ekjus yxs eSusa Hkh vius cpko es ykBh pykus yxk blh chp gekj yM+dk jke ijlu viuh cUnwd ysdj gekjs cpko es ?kj ls fudyk vkSj nw/kukFk oxSjg dks MkWVk nw/k ukFk us jke ijlu dks ns[krs gh yydkjk fd cUnwd ysdj vk;k gS lkys dks tku ls ekj nks buds yydkjus ij jkeewfrZ rsth ls jke ijlu dks ekjus ds fy, Hkkyk fy, gq, yids rks jke ijlu us cUnwd ls jkeewfRkZ dks iSj es ekjk ftlls mldh tku cph xksyh pyrs gh nw/k ukFk oxSjg Hkkx x;s bl ?kVuk dks txnEck flag iq= foUns'ojh flag o yky cpu flga iq= /kkjh flag o vkse izdk'k iq= jkek;.k flag o jke th flag iq= jkeukFk o jkeukFk iq= Nsnh jko us ns[kk ?kVuk ds ckn ge vius ukrh rst izdk'k ds lkFk Fkkuk ij vkus ds fy, rS;kj gq, rks ekywe gqvk fd nw/kukFk oxSjg enuiqj dh vksj x;s gS Mj ds dkj.k ge enuiqj u tkdj vius ukrh ds lkFk egsu\ x;s tgkW MkDVj lkgc ugh feys rks ge cjgt vLirky ogkW ls utnhd gksus ds dkj.k cjgt pys tk;s ogkW Hkh MkDVj lkgc ugha feys rks ge nso ¼dkŒQVkŒ½ vkdj viuk vkSj vius ukrh dk MkDVjh eqvkbuk djk;s vkSj ?kVuk dh lwpuk rkj }kjk vkbZŒthŒ iqfyl dks fn;s vkSj ,d nj[okLr fy[kkdj Fkkuk :}iqj es nsofj;k ls gh fHktok;k pwWfd pksVs T;kns gS blfy, nsofj;k es bykt ds fy, :ds gS vkt irk pyk gS fd :nziqj Fkkuk es gekjs nj[okLr ij dksbZ eqdnek nw/kukFk oxSjg ds f[kykQ ugha fy[kk x;k gSA vr% ;kpuk gS fd gekjh ;g nj[okLr Fkkuk :niqj es Hkst fn;k tkos vkSj eqdnek ntZ djus dk vkns'k fn;k tkosA izkFkhZ jkeu;u flag iq= dkyh pju flag xzke :}iqj ftŒ nsofj;k fnŒ4-3-79 ,l vkbZ Jh y{Ek.k\ ikUMs foospuk es 'kkfey djsA gŒ viBuh; 5-3 bDt [k 8^^ 16. Aforesaid application was incorporated in the investigation of concerned case crime number. Thereafter, Investigating Officer recorded statements of informant, injured, some of accused and other witnesses under Section 161 Cr.P.C. 17. After completion of investigation, P.W.5 Laxman Pandey, Investigating Officer on basis of material collected during course of investigation formed an opinion to submit charge sheet against all named accused. He, accordingly, submitted charge-sheet dated 23.3.1979 (Ext. Ka-5), whereby all named accused were charge-sheeted under sections 323, 504 and 307 IPC. 18. Upon submission of charge-sheet dated 23.7.1979, cognizance was taken upon same by concerned Magistrate. As the case was triable by court of Sessions, same was committed to Court of Sessions, vide committal order dated 09.07.1980. Consequently, S.T. No. 13 of 1900 (State Vs. Ram Nain Singh and 3 others) came to be registered. 19. Court below framed separate and distinct charges against accused. Perusal of Framing Of Charge orders dated 26.7.1982 goes to show that accused Ram Prasanna Singh was firstly charged for committing an offence under section 307 IPC and secondly for committing an offence under section 323 read with section 34 IPC. 20. Accused Ram Nain Singh, Ashok Singh and Udai Pratap singh were charged for an offence punishable under section 323 read with section 34 IPC and also for an offence punishable under section 307 read with section 34 IPC. 21. All the accused denied the charges so framed and demanded trial. Resultantly, burden fell upon prosecution to bring home the charges so framed. 22. Prosecution in discharge of aforesaid burden adduced following witnesses: P.W.1- Doodhnath Singh- Fist informant. P.W.2- Ram Murti Singh- Eye witness (injured). P.W.3- Rama Shankar- Eye witness. P.W. 4- Ram Pyare Singh, Eye witness. P.W.5- S.I. Laxman Pandey- Investigating Officer. P.W.6-Dr. Y.P. Singh-Medical Officer who examined the injured at P.H.C. Rudrapur Deoria. 23. Apart from relying upon the testimonies of aforesaid witnesses, prosecution in order to prove the charges so framed also adduced documentary evidence which is tabulated herein under: 1. Ext.Ka-1-Written report dated 2.3.1979, submitted by first informant Doodhnath Singh at P.S. Rudrapur, District Deoria. Same has been proved by P.W.1 Doodhnath Singh. 2. Ext. Ka-2-check F.I.R. dated 2.3.1979 scribed by constable Moharir Nagendra Singh. It was proved by P.W.-4, S. I. Laxman Pandey 3. Ext. Ka-3-Carbon Copy of G.D. Entry proved by Constable Laxman Pandey. 4. Ext.Ka-4 Site plan proved by S.I. Laxman Pandey. 5. Ext. Same has been proved by P.W.1 Doodhnath Singh. 2. Ext. Ka-2-check F.I.R. dated 2.3.1979 scribed by constable Moharir Nagendra Singh. It was proved by P.W.-4, S. I. Laxman Pandey 3. Ext. Ka-3-Carbon Copy of G.D. Entry proved by Constable Laxman Pandey. 4. Ext.Ka-4 Site plan proved by S.I. Laxman Pandey. 5. Ext. Ka-5 Recovery memo dated 2.3.1979 regarding recovery of pellets from place of occurrence by P.W.5, S.I. Laxman Pandey. Same was proved by P.W.5. 6. Ext. Ka-6 Recovery memo of 3 empty cartridges prepared by Constable Nagendra Singh. Same was proved by P.W.5 S.I. Laxman Pandey. 7. Ext. Ka-7 Injury report dated 2.3.1979 of injured Ram Murti Singh prepared by P.W.-6 Dr. Y.P. Singh and proved by him. 8. Ext. Ka-8 Injury report dated 2.3.1979 of injured Sukhraji prepared by P.W. 6 Dr. Y.P. Singh and also proved by him. 9. Ext.Ka-9 Injury Report of injured Ram Pyare Singh dated 2.3.1979 prepared by P.W.-6 Dr. Y.P. Singh and proved by him. 24. P.W.-1 Doodhnath Singh is father of injured Ram Murti Singh, Ram Pyare Singh, and husband of injured Sukhraji. He is also the first informant. He had submitted written report dated 2.3.1979 at 9:30 a.m., at P. S. Rudrapur which was scribed by Sita Ram Singh regarding occurrence that took place on 2.3.1979 at 7:30 a.m.. It was entered in the General Diary of Police Station, Rudrapur. Carbon copy of same is on record as Ext. Ka-3. On the basis of aforesaid written report, check F.I.R. dated 02.03.1979 was scribed by Constable Moharir, Nagendra Singh. This witness is an eye-witness of the occurrence. He has clearly proved the prosecution story which the prosecution set out to prove. As per testimony of this witness, injuries were sustained by injured on account of assault by accused persons. He has clearly narrated the circumstances preceding the occurrence, manner of occurrence and how injured Ram Murti Singh was carried to Hospital. Defence cross-examined this witness as he is an interested witness. However, defence could not dislodge his testimony. Court below found presence of this witness at the time and place of occurrence natural and reliable, therefore, held him to be credible and reliable witness. Accordingly, his testimony was relied upon. 25. P.W. 2 Ram Murti Singh is an injured eye witness of the occurrence. However, defence could not dislodge his testimony. Court below found presence of this witness at the time and place of occurrence natural and reliable, therefore, held him to be credible and reliable witness. Accordingly, his testimony was relied upon. 25. P.W. 2 Ram Murti Singh is an injured eye witness of the occurrence. This witness received gun shot injury on his right knee from the gun shot fired by accused Ram Prasanna Singh. He has clearly deposed the circumstances preceding the occurrence, how he reached the place of occurrence as well as the manner in which occurrence took place and further how he was carried from place of occurrence to his home by Ram Pyare Singh and Set Bandhu and then taken on cot for medical treatment. He has further stated that subsequently his right leg below the thigh was amputated at Medical College, Gorakhpur. His testimony is almost similar to that of P.W. 1. Doodhnath Singh, Defence cross examined this witness, but failed to cull out any such statement from him on the basis of which, his statement could be discarded on account of exaggeration, embellishment or contradiction. Defence failed to prove that this witness received injuries in an another occurrence. Consequently, it was held by Court below that this witness was present at the time and place of occurrence and received gun shot injury in the occurrence complained of. There is nothing to disbelieve him. As such, he was held to be credible and therefore his testimony was worthy of trust. 26. P.W. 3 Rama Shankar is an independent witness, and is resident of same village where occurrence took place. This witness reached place of occurrence on hearing alarm and thereafter witnessed entire occurrence. He has clearly stated about presence of accused at place of occurrence as well as circumstances preceding the occurrence. He has also categorically stated as to how gun shot was fired by accused Ram Prasanna Singh which injured Ram Murti Singh on his right knee. The defence cross examined this witness, but failed to dislodge him. Court below, therefore, accepted his testimony, as there was nothing to doubt his presence at the time and place of occurrence. 27. P.W. 4 Ram Pyare Singh is son of first informant Doodhnath Singh and also brother of injured Ram Murti Singh. He is an eye-witness. The defence cross examined this witness, but failed to dislodge him. Court below, therefore, accepted his testimony, as there was nothing to doubt his presence at the time and place of occurrence. 27. P.W. 4 Ram Pyare Singh is son of first informant Doodhnath Singh and also brother of injured Ram Murti Singh. He is an eye-witness. He has clearly deposed as to how he reached the spot upon hearing alarm of his brother. He has then stated that he along with other witnesses tried to pacify the situation, how shot was fired by accused Ram Prasanna Singh and also manner in which other persons sustained injuries on account of assault by accused. He has thus clearly deposed about circumstances preceding gun shot as well as manner of occurrence. This witness along with Set Bandhu carried injured Ram Murti Singh to the door of his house and then took injured to Madanpur on a cot. He has further deposed how injured was thereafter taken to Rudrpur on a rickshaw. Thus this witness has clearly stated about occurrence and and events that followed thereafter. Same are relevant circumstances as they are part of same transaction Defence cross examined this witness, but failed to dislodge him. Hence, Court below concluded that presence of this witness at the time and place of occurrence is established beyond doubt and therefore, his testimony was held to be worthy of credit. 28. P.W. 5 S.I. Laxman Pandey is Investigating Officer of case. At relevant time, this witness was posted as Sub Inspector at Police Station Rudrapur, District Deoria. This witness is a formal witness. He has proved check F.I.R. (Ext. Ka-2) scribed by Constable Clerk Nagendra Singh on 2.3.1981 on the basis of written report dated 2.3.1979 (Ext. Ka-1). He has also proved carbon copy of G. D. entry regarding above (Ext. Ka.-3) which is in hand writing of Constable Moharrir Nagendra Singh as he is familiar with his hand writing. He has further deposed that F.I.R. was registered in his presence and thereafter he was appointed as Investigating Officer. After his appointment as Investigating Officer, this witness completed formalities and proceeded to place of occurrence. He recovered pellets from place of occurrence and consequently prepared its recovery memo dated 2.3.1979 (Ext. Ka-5). This witness found marks of firing on the wall. On pointing of first informant, he prepared site plan of place of occurrence (Ext. After his appointment as Investigating Officer, this witness completed formalities and proceeded to place of occurrence. He recovered pellets from place of occurrence and consequently prepared its recovery memo dated 2.3.1979 (Ext. Ka-5). This witness found marks of firing on the wall. On pointing of first informant, he prepared site plan of place of occurrence (Ext. Ka-4). Upon receipt of injury report of injured from side of informant i.e. (Ext. Ka-7, Ka-8, Ka-9) as well as other injured (Ext. Kha-6, Kha-7), he proceeded with investigation. He recorded statements of first informant Doodhnath Singh, injured and other witnesses in terms of Section 161 Cr. P. C. He also recorded statement of some of accused. Upon completion of investigation, he submitted charge-sheet (Ext. Ka-5). First informant Doodhnath Singh had deposited three cartridges at Police Station Rudrapur at the time of the report in respect of which recovery memo (Ext.KA-6) was prepared by Constable Clerk Nagendra Singh. He also proved the same. 29. P.W.6 Dr. Y.P. Singh was posted as Medical Officer In-charge at Primary Health Centre, Rudrapur, District Deoria. This witness had examined all the injured and had consequently prepared their medico legal reports (Exts. Ka-7, 8, 9) and (Exts. Kha-6 and 7). He has proved the same. In respect of injured Ram Murti Singh, he opined that injured Ram Murti Singh sustained gun shot injury which could have been caused by some fire arm. In the opinion of this witness, injury was fresh, but general condition of injured was poor. He, accordingly, referred injured Ram Murti Singh to District Combined Hospital, Deoria. With regard to injuries sustained by injured Smt. Sukhaji and Ram Pyare Singh, he opined that their injuries were fresh, but simple. Same could have been caused by some blunt object. 30. After prosecution evidence was over, accused brought in their defence evidence by adducing two defence witnesses namely D.W.-1 Dr. K.P. Verma, Medical Officer Deoria and D.W.-2 Pramod Singh. 31. D.W.1-Dr. K.P. Verma was posted as Medical Officer In-charge, Primary Health Centre, Rudrapur, Deoria in the year 1979. This witness had examined all the injured and had consequently prepared their medico legal reports, which are on record as (Exts. Ka-7,8,9) and (Exts. Kha 6 and 7). He was adduced by prosecution to prove medico legal reports of injured Ram Murti Singh, Ram Pyare Singh and Sukhraji, (Exts. Ka-7,8,9). This witness had examined all the injured and had consequently prepared their medico legal reports, which are on record as (Exts. Ka-7,8,9) and (Exts. Kha 6 and 7). He was adduced by prosecution to prove medico legal reports of injured Ram Murti Singh, Ram Pyare Singh and Sukhraji, (Exts. Ka-7,8,9). Defence adduced this witness to prove medico legal reports of Ram Nain Singh and Tej Prakash (Exts. Kha 6 and 7). He proved the same. This witness had examined accused Ram Nain Singh and injured Tej Prakash on 2.3.1979 at around 2 p.m. In the opinion of this witness, injuries sustained by injured Ram Nain Singh had been caused about 8 hours ago. He further examined injured Tej Prakash and proved medico legal report prepared by him regarding aforesaid injured. In his opinion, injuries sustained by Tej Prakash were 8 hours old. 32. D.W.2- Pramod Singh is son of Rama Shankar Singh. Accused Ram Nain Singh is his Grand Father. He proved the application submitted by Ram Nain Singh addressed to Superintendent of Police, Deoria (Ext. Kha8). He has given a vivid description of his house and its surrounding. However, this witness has not deposed any thing about the circumstances preceding the occurrence or the manner of occurrence. As such, his testimony is wholly irrelevant. 33. Defence in proof of their innocence also adduced certain documentary evidence which is detailed herein under:- 1. Ext. Kha-1 Extract of statement of Doodhnath Singh (P.W.1) under Section 161 Cr. P. C. proved by S.I. Laxman Pandey. 2. Ext. Kha-2 Extract of statement of Doodhnath Singh (P.W. 1) under Section 161 Cr. P. C. proved by S.I. Laxman Pandey. 3. Ext. Kha-3 Extract of statement of Ram Murti Singh (P.W. 2) under Section 161 Cr. P. C. proved by S.I. Laxman Pandey. 4. Ext. Kha-4 Extract of statement of Ram Murti Singh (P.W. 2) under Section 161 Cr. P. C. proved by S.I. Laxman Pandey. 5. Ext. Kha-5 Extract of statement of Rameshwar (P.W. 3) under Section 161 Cr. P. C. proved by S.I. Laxman Pandey. 6. Ext. Kha-6 Injury report of accused Ram Nain prepared and proved by Dr. K.P. Verma (D.W. 1). 7. Ext. Kha-7 Injury report of Tej Prakash prepared and proved by Dr. K.P. Verma (D.W. 1). 8. Ext. Kha-8 Application sent by accused Ram Nain Singh, to Superintendent of Police, Deoria proved by D.W. 2 Pramod Singh. 9. Ext. 6. Ext. Kha-6 Injury report of accused Ram Nain prepared and proved by Dr. K.P. Verma (D.W. 1). 7. Ext. Kha-7 Injury report of Tej Prakash prepared and proved by Dr. K.P. Verma (D.W. 1). 8. Ext. Kha-8 Application sent by accused Ram Nain Singh, to Superintendent of Police, Deoria proved by D.W. 2 Pramod Singh. 9. Ext. Kha-9 Certified copy of judgement passed by Appellate Court in Settlement Appeal, Jagshwar Singh Vs. Achhaiber Singh decided by Commissioner, Gorakhpur Division, Gorakhpur, on 19.03.2019. 10. Ext. Kha-10 Certified copy of Map of village Samogar of 1899, the same is certified by Revenue Lekhpal, Deoria and issued by Copying Department, Revenue Record Room, Collectorate, Deoria. 11. Ext. Kha-11 Certified copy of Kurrah Dih Basgit of village Sarogar of 1899. 12. Ext. Kha-12 Certified copy of Muntakhab Kora Abadi of village Samogar of 1898. 13. Ext. Kha-13 Certified copy of the khatauni of village Samogar of 1378F. 14. Ext. Kha-14 Certified copy of khatauni of 1356 F of village Samogar. 15. Ext. Kha-15 Certified copy of the plaint of revenue suit Ram Nain Singh and others Vs. Jagdamba Singh and others under Section 229-B decided on 26.02.1979. 34. It may be noted here that no steps were taken by accused persons to get an F.I.R. lodged by them. Apart from above, none of the injured appeared as a witness to prove the occurrence in which injuries were sustained by them. 35. After the stage of evidence was over, accused were examined under Section 313 Cr. P. C. All the incriminating circumstances were put to them for their version of the occurrence in question answer form. They denied all the questions put to them one by one by submitting that it is false or they have been falsely implicated on account of enmity. In short, all the accused denied their complicity in the crime in question and pleaded not guilty. 36. It was urged on behalf of accused before Court below that they have been falsely implicated in the crime in question on account of enmity. Place of occurrence alleged by prosecution is point 'A' shown in site plan (Ext. Ka-4, which is incorrect. According to defence, occurrence took place at the door towards east of the house of accused Ram Nain Singh. Place of occurrence alleged by prosecution is point 'A' shown in site plan (Ext. Ka-4, which is incorrect. According to defence, occurrence took place at the door towards east of the house of accused Ram Nain Singh. Testimony of P.W. 1 Doodhnath Singh, who is first informant and also father of injured Ram Pyare Singh, Ram Murti Singh as well as husband of injured Sukhraji, is not reliable as he is an interested and partisan witness. In fact, on account of assault by accused persons, two persons from side of defence namely Ram Nain Singh and Tej Prakash have sustained injuries. 37. On the aforesaid submissions urged on behalf of accused before Court below, following points of determination emerged;-1 Who is the aggressor, 2 Whether defence version of occurrence is probable or not. 3 Whether statement of defence witnesses supports defence of accused, 4 Whether P.W. 1 Doodhnath Singh can be held as credible and reliable witness. 38. Upon evaluation of evidence on record, as well as submissions urged, it was concluded by Court below that defence has failed to demolish prosecution case. Court below found that accused persons are aggressors, Defence version of occurrence is improbable, statement of defence witnesses i.e. D.W. 1 Dr. K.P. Verma and D.W. 2 Pramod Singh does not help accused. It is wrong to allege that accused have been falsely implicated on account of enmity. Evidence on record clearly proves that occurrence has taken place at the spot suggested by prosecution. Presence of P.W. 1 (Doodhnath Singh) at the time and place of occurrence is natural and worthy of trust and therefore, he is a credible and reliable witness. 39. On the aforesaid findings, Court below by means of judgement dated 31.3.1983 and order dated 2.4.1983 convicted accused Ram Prasanna Singh under sections 307, 323 and 34 IPC and consequently, sentenced him to four years rigorous imprisonment under section 307 IPC read with section 34 IPC and 6 months rigorous imprisonment under section 323 IPC. Both the sentences are to run concurrently. The other three accused (I) Ram Nain Singh (2) Ashok Singh and (3) Udai Pratap Singh were convicted under section 323 read with section 34 IPC but were acquitted of an offence under section 307 IPC. However, they were released on probation by granting benefit under Uttar Pradesh First Offenders' Probation Act, 1938. 40. The other three accused (I) Ram Nain Singh (2) Ashok Singh and (3) Udai Pratap Singh were convicted under section 323 read with section 34 IPC but were acquitted of an offence under section 307 IPC. However, they were released on probation by granting benefit under Uttar Pradesh First Offenders' Probation Act, 1938. 40. Thus feeling aggrieved by above noted judgement and order, accused Ram Prasanna Singh has now approached this Court by means of present Criminal Appeal. Instant appeal came up for admission on 4.4.1983. Same was admitted and accused appellant was enlarged on bail. 41. I have heard Mr. Satya Prakash Singh, learned counsel for appellant and learned A.G.A. for State. 42. Mr. Satya Prakash Singh, learned counsel for appellant in challenge to impugned judgement and order contends that conviction and sentence awarded by Court below to appellant is unsustainable in law and fact. Impugned judgement rendered by Court below runs into as many as 18 pages. It contains detailed discussion about the offence punishable under Section 307 I.P.C., but discussion in respect of an offence punishable under Section 323 read with Section 34 I.P.C. in so far as it relates to present applicant is conspicuous by its absence. In short, the submission is that Court below has failed to exercise the jurisdiction vested in it diligently. He further contends that on the basis of material available on record, conviction and sentence of appellant under Section 307 IPC read with Section 34 IPC is manifestly illegal, as there was no intention on part of appellant to kill Ram Murti Singh. The gun shot was fired by him from a distance of 7-8 paces and the shot struck Ram Murti Singh on his right knee. It is also established from evidence on record that a single gun shot was fired by accused Ram Prasanna Singh and therefore the intention of accused Ram Prasanna Singh was only to harm Ram Murti Singh, but not to kill him. It is thus vehemently urged that ingredients of Section 307 IPC are not satisfied in present case. Hence, conviction of appellant under Section 307 IPC is not sustainable. It is lastly contended that occurrence took place on 2.3.1979 i.e. more than 41 years ago and conviction was recorded against appellant by Court below vide judgement dated 31.3.1983 and order dated 2.4.1983 i.e. more than 37 years ago. Hence, conviction of appellant under Section 307 IPC is not sustainable. It is lastly contended that occurrence took place on 2.3.1979 i.e. more than 41 years ago and conviction was recorded against appellant by Court below vide judgement dated 31.3.1983 and order dated 2.4.1983 i.e. more than 37 years ago. Therefore, considering above, this Court may convert conviction awarded by Court below into fine/compensation. To buttress his submission, he has relied upon judgements of this Court in Ganesh and another Vs. State of U.P. reported in 2012 (3) Allahabad Criminal Rulings and judgement dated 7.2.2014 rendered in Criminal Appeal No. 2025 of 1981 (Ajai Pal and others Vs. State) 43. Court below has convicted and sentenced appellant under Sections 307, 323, and 34 I.P.C. Therefore, in order to ascertain as to whether in facts and circumstances of the case, conviction and sentence of appellant under aforesaid Sections 307, 323 and 34 of I.P.C. is sustainable or not it shall be useful to reproduce aforesaid sections, their ingredients and then evaluate as to whether they are satisfied in present case or not. The same read as under:- “Section 34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 44. Ratanlal and Dhirajlal on The Indian Penal Code 33rd edition have pointed out following essential ingredients of Section 34 IPC. (i) That the criminal act was done by more than one person; (ii) That the said act was done, in furtherance of the common intention of all; (iii) Then, each of such persons is liable for the act done; and (iv) The liability of each of such persons would be in the same manner as if the act was done by him alone. 45. Similarly the same author have opined that following are the essential ingredients of Section 323 IPC. (i) That the accused caused hurt to another person; (ii) That he caused such hurt voluntarily; (iii) That such a case was not covered under section 334 IPC. 46. Learned counsel for appellant could not dislodge the conclusion drawn by Court below in awarding conviction and sentence to the appellant under Section 323 read with Section 34 IPC. (i) That the accused caused hurt to another person; (ii) That he caused such hurt voluntarily; (iii) That such a case was not covered under section 334 IPC. 46. Learned counsel for appellant could not dislodge the conclusion drawn by Court below in awarding conviction and sentence to the appellant under Section 323 read with Section 34 IPC. However, this Court is not unmindful of the legal position that a Court of appeal is the last Court of fact and therefore, a criminal appeal cannot be decided only on the basis of findings recorded by Court below, It is the bounden duty of appellate Court to re-evaluate and re-appreciate the evidence on record and arrive at its own independent conclusion. 47. Consequently, I have examined the testimonies of P.W.1, P.W.2, P.W.3 and P.W.4 thread bare who are witnesses of fact. All the four prosecution witnesses of fact have been consistent in their testimony that all the four accused were present at the place of occurrence. The number of injured is three. The presence of accused at the place of occurrence has been established beyond doubt. As such it was with a common intention to harm the injured. It is on account of aforesaid that the other three accused have been convicted and sentenced under section 323 read with section 34 IPC. They have not challenged the conviction awarded to them. Consequently, this part of impugned judgement requires no interference and is therefore, liable to be confirmed by this Court. It is accordingly confirmed. Section 307: Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.— 2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] llustrations. (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. Attempts by life convicts.— 2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] llustrations. (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section. (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.” 48. Ratan and Dhirajlal on The Indian Penal Code 33rd edition have observed that following constitute essential ingredients of Section 307 IPC. (i) That the accused did an act; (ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and (iii) That the accused had no excuse for incurring the risk of causing such death or injury. 49. In order to constitute an offence under Section 307 I.P.C. two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder: and (b) the doing of an act towards it. Vide Parsuram Pandey and Ors. Vs. 49. In order to constitute an offence under Section 307 I.P.C. two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder: and (b) the doing of an act towards it. Vide Parsuram Pandey and Ors. Vs. State of Bihar (2004) 13 SCC 189 . 50. In Prakash Chandra Yadav Vs. State of Bihar and others AIR 2007 Supreme Court (Suppl.) 488, Court observed as under in paragraph 12, for recording a conviction under Section 307 IPC. “12. From a bare perusal of the said provision, it is evident that first part thereof does not contemplate that receipt of any injury on the part of the victim is a pre-requisite for convicting an accused thereunder. In the event injuries are received, the second part of Section 307 would be attracted. The necessary ingredients for attracting the first part of Section 307 of the Indian Penal Code is intention or knowledge. The legal position would be evident from the illustration (c) appended to the said provision which reads as under: (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.” 51. What would be the parameters for awarding a conviction under Section 307 I.P.C. was considered in State of M.P. Vs. Imrat and another AIR 2008 Supreme Court 2967, wherein Court held as under in paragraphs 11 and 12:- “11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 12. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 12. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. ( 1983 (2) SCC 28 ), Girija Shanker v. State of Uttar Pradesh ( 2004 (3) SCC 793 ), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of M.P. v. Saleem @ Chamaru and Anr. ( 2005 (5) SCC 554 ).” 52. In State of M. P. Vs. Kanshi Ram and others AIR 2009 SC 1642 , following has been observed in paragraphs 10, 11 and 12 as to what would constitute an offence under Section 307 IPC:- “10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 11. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. ( 1983 (2) SCC 28 ), Girija Shanker v. State of Uttar Pradesh ( 2004 (3) SCC 793 ), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of Madhya Pradesh v. Saleem @ Chamaru & Anr. [ 2005 (5) SCC 554 ]. 12. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.” 53. After considering above noted decisions, a learned single judge of this Court in Ganesh and another Vs. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.” 53. After considering above noted decisions, a learned single judge of this Court in Ganesh and another Vs. State of U.P. reported in 2012 (3) Allahabad Criminal Rulings concluded as follows in paragraphs 15 and 17:- “15. Turning to the harangued contention that crime committed by the appellants will not be one under Section 307 IP.C., I find that there is much force in that castigation. For establishing charge of attempt to murder under Section 307, I.P.C. what has to be established, clear of all doubts, that accused necessarily possessed an intention to commit murder. this is sine qua non ingredient for that offence and absence of it will catapult accused case out of it. Voluminous judicial pronouncements., both by this Court has firmly laid down trite law that neither the injury nor it's nature is the guiding factor for making out of an offence under Section 307, I.P.C., but the primary and sole criterion is intention to commit murder. Although weapon used, site of injury caused, nature of injury, circumstance under which it is caused, attending facts and circumstances all the relevant factors to determine intention to commit murder but what cannot be eschewed from being proved to the hilt is the possessed intention to commit murder. In this respect, reliance an be placed on various Apex Court decisions, some of which are cited hereunder as exemplars. 17. Applying the reasoning laid down in by the Apex Court in the instant facts and circumstances, it is seen that a single blow was given to the injured at the spur of moment. Incident started because of tilling of soil. There was no previous enmity and none of the sides has any animus against each others. In respect of possession of field, there has been no litigation between both the sides. The doctor has nowhere stated that the injury sustained by the injured was grievous nature or dangerous to life. If the appellants harbingered an intention to commit murder. Ganesh would have pierced the appear into the chest of the injured with such force as would have caused his death, which he did not do. The doctor has nowhere stated that the injury sustained by the injured was grievous nature or dangerous to life. If the appellants harbingered an intention to commit murder. Ganesh would have pierced the appear into the chest of the injured with such force as would have caused his death, which he did not do. He never made any attempt to assault him with lathi, though he had carried it alongwith him. In such a view, looking to the entire facts and circumstances and the background in which the incident had occurred. It does not seems that the appellants has an intention to commit murder and, therefore, their conviction under Section 307 I.P.C. is indefensible and has to be scored out. Proven guilt of the appellants does not cross boundary of Section 324 I.P.C and it is only for that crime that the appellants can be convicted. 54. When the facts of present case are examined, in the light of law as detailed above, it is evident that injured Ram Murti Singh sustained gun shot injury on the outer part of his right knee joint. It has also come in evidence that shot was fired from a distance of 7-8 paces and only one shot was fired. No doubt, subsequently, the right leg of injured Ram Murti Singh was amputated. These are mitigating circumstances which the Court has to bear in mind to decide whether the guilt of the accused Ram Prasanna Singh is covered within the ambit of Section 307 I.P.C. or not. 55. The three prosecution witnesses of fact namely P.W. 1 Doodhnath Singh, P.W. 2 Ram Murti Singh (injured) and P.W. 3 Rama Shankar have been consistent in so far as basic prosecution case is concerned. Court below has observed in impugned judgement that there are minor contradictions in their testimonies, but same shall not be fatal for prosecution as evidence was recorded about 4 years after the occurrence. Further minor contradictions are natural as no two persons will depose in identical manner. Thus there is no reason to differ from aforesaid observation. 56. None of the three prosecution witnesses of fact have deposed that gun shot was fired by accused-appellant Ram Prasanna Singh with an intention to kill Ram Murti Singh. Furthermore, it is the consistent deposition of all the four prosecution witnesses of fact that shot was fired from a distance of 7-8 paces. 56. None of the three prosecution witnesses of fact have deposed that gun shot was fired by accused-appellant Ram Prasanna Singh with an intention to kill Ram Murti Singh. Furthermore, it is the consistent deposition of all the four prosecution witnesses of fact that shot was fired from a distance of 7-8 paces. Had the intention of accused-appellant been to kill Ram Murti Singh, the only act required on his part was to raise the barrel of his gun which admittedly he did not do. Therefore, the intention of accused-appellant was not to commit murder of Ram Murti Singh, but only to harm him. The result of the same is that shot was fired without any intention to kill Ram Murti Singh. Consequently, conviction of accused-appellant under Section 307 IPC is clearly unsustainable and criminality committed by accused-appellant shall fall within the ambit and scope of Section 324 IPC. 57. At this stage, reference be made to Sarju Prasad Vs. State of Bihar, reported in AIR 1965 SC 843 wherein, an identical question came up for consideration before Apex Court as involved in present appeal. Paragraphs 1 and 7 of above judgement are relevant for the controversy in hand and the same are reproduced herein under: “1. While granting special leave in this appeal from a judgment of the Patna High Court this Court restricted it only to one question and that is whether the act of the appellant amounts to an offence under Section 307, Indian Penal Code. 7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I. P. C. cannot possibly be brought home to the appellant The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. ” 58. Occurrence had occurred on 02.03.1979 i.e. more than 41 years ago. Accused-appellant was aged about 35 years in the year 1983 and therefore on date he is aged about 72 years. Whatever enmity existed between the parties must have vanished with the passage of time. ” 58. Occurrence had occurred on 02.03.1979 i.e. more than 41 years ago. Accused-appellant was aged about 35 years in the year 1983 and therefore on date he is aged about 72 years. Whatever enmity existed between the parties must have vanished with the passage of time. The families must have settled and also reconciled with the circumstances. These mitigating circumstances are also required to be considered. Therefore, at this stage, to direct the accused-appellant to undergo detention for offences under Section 324 IPC and Section 323 read with Section 34 IPC would not serve any purpose. 59. This Court in almost similar circumstances in Criminal Appeal No. 2025 of 1981 (Ajai Pal and Others Vs. State) dated 7.2.2014 took the following view commensurate with the facts of that case. Relevant paragraph 21is reproduced herein under: “21. Considering the facts and circumstances of the case, submissions of the learned counsel for the appellant, looking into the age of the appellant and taking into account that the incident is 35 years old and the appeal has come up for hearing after 33 years and the position of the appellant as on date, it is directed that rest of the sentence of the appellant converted into fine of Rs.15,000/-which shall be deposited by the appellant in the Court of C.J.M., Aligarh within a period of two months from today, out of which Rs.12,000/-shall be paid to the injured Ninnami Singh, if alive, or to his legal heirs, if any, and Rs.3,000/-shall go the State. ” 60. In view of the discussions made above, appeal succeeds in part. Accordingly, it is partly allowed. Conviction and sentence of appellant under Section 307 read with Section 34 IPC is set aside and shall stand substituted by his conviction under Section 324 IPC and consequently with three years of imprisonment. Remaining part of conviction and sentence awarded to appellant under the impugned judgement is maintained. 61. Having given my anxious consideration to the facts and circumstances of the case as noted herein above, sentence awarded by Court below to appellant as modified by this Court is converted into compensation in light of the judgement of Apex Court in Ankush Shivaji Gaikwad Vs. State of Maharashta, reported in AIR 2013 SC 2454 . Apex Court in aforesaid judgement has discussed in detail about the law relating to grant of compensation where sentence is altered. State of Maharashta, reported in AIR 2013 SC 2454 . Apex Court in aforesaid judgement has discussed in detail about the law relating to grant of compensation where sentence is altered. After considering entire gamut of case law on the subject, Court concluded as follows in paragraph 62: "62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family." 62. Accordingly, appellant shall pay compensation to the tune of Rs. 1 lac to the injured and in case he is not alive, to the heirs of injured Ram Murti Singh. The aforesaid amount shall be deposited by means of a Bank Draft drawn in favour of Sessions Judge, Deoria within a period of two months from the date of this judgement, who shall disburse the same in the manner indicated above. In case of failure to deposit the amount as directed above, Court below shall get the same recovered as arrears of land revenue as held by Apex Court in Kumaran Vs. State of Kerala and another, (2017) 7 SCC 471 . Appellant is on bail. He need not surrender. Bail bonds and surety bonds of accused-appellant and others shall be discharged, forthwith. 63. Appeal is partly allowed.