JUDGMENT : AJIT SINGH, J. 1. Heard Sri Chetan Chaterjee and Miss Nishi Mehrotra, learned Amicus Curiae for the appellants-accused, learned A.G.A. appearing on behalf of the State and perused the record. 2. This criminal appeal has been preferred against the judgment and order 22.10.2012 passed by Special Judge (E.C. Act), Mirzapur in Sessions Trial No. 14 of 2010 (State vs. Hari Narayan and Others), arising out of Case Crime No. 1096 of 2009, whereby the appellants have been convicted and sentenced under section 307/34 IPC for life imprisonment and fine of Rs. 3,000/- and in default of payment of fine the accused shall undergo one year additional imprisonment, one year R.I. Each under section 504 I.P.C. and fine of Rs. 1,000/- each and in default of payment of fine accused shall further undergo three months R.I. 4 years months R.I. under section 506 I.P.C. and a fine of Rs. 2,000/- each and in default of payment of fine the accused shall further undergo eight months additional R.I. All the sentences shall run concurrently. 3. The FIR of this incident was lodged by Hari Kumar Gaur, informant on 16.10.2009 at Police Station Chunar, District-Mirzapur and it was mentioned in the FIR that on 16.10.2009 at about 8:30 p.m. the informant his cousin brother Yogesh Kumar and his uncle Sadanand Gaur had gone to their field for irrigation. At about 9:16 p.m. accused Hari Narain @ Devganda @ Jhinguri son of Shyama Bind, who used to work as labour, was residing at his in-laws house along with his wife and kids. About one year ago a slanging match (exchange of) abusive terms. took place between the aunt of the informant and the wife of the accused Hari Narain @ Devganda @ Jhinguri and due to that reason there was enmity between them. The accused threatened with dire consequences but the informant did not take it seriously. The other accused Mukesh used to come to Village-Deogauda, that's why he was known to the informant. At about 9:15 p.m. both the accused persons reached near the field on their motorcycle. The accused threatened with dire consequences but the informant did not take it seriously. The other accused Mukesh used to come to Village-Deogauda, that's why he was known to the informant. At about 9:15 p.m. both the accused persons reached near the field on their motorcycle. Upon seeing the brother of the informant, both the accused used filthy language and at that point of time the accused Mukesh put off his pistol and as an when brother of the informant Mahesh tried to run away, the accused Hari Narain @ Devganda @ Jhinguri shot fired on the back of Mahesh. We were afraid and ran away towards the field. Mahesh fell on the ground. After attacking Mahesh both the accused fled away from the scene on their motorcycle. The injured was taken to Mirzapur Hospital from where he was referred to B.H.U. Hospital after first aid. 4. The case was registered against the accused persons. After investigation, the police submitted charge-sheet under sections 307, 504 and 506 IPC. The learned Magistrate summoned the accused persons and committed them to Court of Sessions as prima facie charges were for offences under Sections 307, 504 and 506 I.P.C. 5. On being summoned, the accused-appellants pleaded not guilty and claimed to be tried. The learned Sessions Judge framed charges under Sections 307, 504 and 506 I.P.C. 6. The Trial started and the prosecution examined 6 witnesses who are as follows: 1. Hariom PW-1 2. Mahesh Kumar Gaur PW-2 3. Dr. A.K. Pandey PW-3 4. Constable Shyam Sunder PW-4 5. Dr. Prem Shankar PW-5 6. S.I. Pannag Bhushan PW-6 7. In support of ocular version following documents were filed and proved: 1. Complaint Ex.Ka-1 2. Fard Recovery Ex.Ka-2 3. Medical Examination Report Ex.Ka-3 4. FIR Ex.Ka-4 5. Copy of G.D. Ex.Ka-5 6. Admission Slip Ex.Ka-6 7. Patient History Ex.Ka-7 8. Operative Notes Ex.Ka-8 9. Medical Examination Report Ex.Ka-9 10. Discharge Note Ex.Ka-10 11. X-ray Report Ex.Ka-11 12. X-ray Report Ex.Ka-12 13. Site Plan Ex.Ka-13 14. Charge-Sheet Ex.Ka-14 15. Fard Recovery Ex.Ka-15 8. At the end of the trial and after recording the statements of the accused under section 313 of Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellants as mentioned above. 9. The trial court recorded statement of the witnesses and after hearing the argument of both the sides, convicted the appellants as aforesaid. 9. The trial court recorded statement of the witnesses and after hearing the argument of both the sides, convicted the appellants as aforesaid. 10. This Court has perused the evidence available on record. The complainant Hariom Gaur PW-1, who had seen the occurrence, has deposed against the accused persons and PW-2 Mahesh Kumar Gaur who sustained injuries in the incident, has specifically nominated the accused persons and their evidence has been corroborated by medical evidence of PW-3 Dr. A.K. Pandey. 11. Learned counsel for the appellants has specifically stated that no independent witness has been examined in this matter. He has further submitted that the injured Mahesh Kumar Gaur had not received injuries which could be said that they were fatal to life and doctor has nowhere mentioned in his statement that the injuries sustained by the injured were fatal to life in normal circumstances. The doctor has only mentioned that if proper treatment had not been given then injury might be fatal. Learned counsel for the appellant has further submitted that the incident has happened due to previous enmity between both factions and incident had happened at the spur of moment and the accused persons had not inflicted the injuries with intention to cause death to the injured Mahesh Kumar Gaur. He further submits that on the exhortation of accused Mukesh @ Jeet Lal @ Jetaye, other accused Hari Narain @ Devganda @ Jhinguri fired at the injured, which was hit on his back. The injured sustained injuries on his non-vital part. The injuries received by the injured were although grievous but were not fatal to life. The appellants could not have been convicted under section 307 IPC but they were convicted as per the evidence only under section 324 read with 34 IPC. 12. Learned counsel for the appellants has submitted that the incident took place in the year 2009. Accused Mukesh @ Jeet Lal @ Jetaya is in jail since 19.10.2009 and accused Hari Narain @ Devganda @ Jhinguri is in jail since 22.10.2012. Both the accused persons were convicted in the year 2012. He further submitted that the accused persons have suffered mental and physical agony of incarnation and they have suffered mentally agony of criminal trial and after conviction since year 2012. 13. Both the accused persons were convicted in the year 2012. He further submitted that the accused persons have suffered mental and physical agony of incarnation and they have suffered mentally agony of criminal trial and after conviction since year 2012. 13. Learned A.G.A. has vehemently opposed the arguments advanced by the learned counsel for the appellants and has submitted that the accused Hari Narain @ Devganda @ Jhinguri had fired at the injured Mahesh Kumar Gaur, causing grievous injury to him and as per doctor opinion the injury sustained by the injured was dangerous and fatal to life. The shot was hit at the centre back of the injured and they have been rightly convicted by the trial court under section 307 read with 34 IPC. 14. We have perused the entire material available on record and considered the evidence minutely, we are of the opinion that the trial court has rightly convicted the accused persons as there was trustworthy evidence of PW-1 informant and PW-2 injured against the accused persons, which were fully corroborated by the medical evidence. The accused are in jail since 19.10.2009 and 22.10.2012 respectively. The old counsels for appellants have prayed for considering alternative prayer to consider is called up to modify the sentence, considering the various decisions of the Apex Court and the young age of accused and the manner in which incident occurred. Reference to the following decision would be necessary. 15. In Mohd. Giasuddin vs. State of A.P. AIR 1977 SC 1926 , explaining rehabilitary and reformative aspects in sentencing it has been observed by the Supreme Court: “Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an ‘in terrorem’ outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” 16. In Sham Sunder vs. Puran, (1990) 4 SCC 731 , where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held: “The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence.” 17. In State of M.P. vs. Najab Khan, (2013) 9 SCC 509 , the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs. State of U.P. (2010) 12 SCC 532 and Guru Basavraj vs. State of Karnataka, (2012) 8 SCC 734 , the court observed as follows: “In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment.” 18. Earlier “Proper Sentence” was explained in Deo Narain Mandal vs. State of U.P. (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 19. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs. State (NCT of Delhi), (2013) 7 SCC 77 , it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs. Bawa Singh, (2015) 3 SCC 441 and Raj Bala vs. State of Haryana, (2016) 1 SCC 463 . 20. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs. Bawa Singh, (2015) 3 SCC 441 and Raj Bala vs. State of Haryana, (2016) 1 SCC 463 . 20. In Kokaiyabai Yadav vs. State of Chhattisgarh, (2017) 13 SCC 449 , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 21. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of U.P. (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnataka, (2012) 8 SCC 734 , Sumer Singh vs. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs. Bawa Singh, (2015) 3 SCC 441 and Raj Bala vs. State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.” 22. Considering the facts and circumstances of the case and the substantive period already undergone by the appellants in this case and the fact that considerable period has already been served by the accused persons in this case and the fact is that both the appellants are young persons in their mid forties; there is no bread-earner in their families and by so far they have realized the mistake committed by them and are remorseful to their conduct and feel it necessary to serve with their polite and cooperative behaviour to the society which they belong to and now they want to transform themselves into a law abiding citizen, I am of the considered opinion that they should be given a chance to reform themselves and extend their better contribution to the society to which they belong to. 23. Considering the facts and circumstances of the case, considering the evidence available on record and considering the nature of injury, this Court deems it fit to alter the conviction to already undergone by the accused persons. 24. Consequently, taking into consideration the period already undergone in prison by the appellants in this case as well as considering that they have suffered physical and mental agony of trial and after conviction for a long period of 10 years, the sentence awarded to them under Section 307/34 is converted to already undergone by them in prison with a fine of Rs. 2,000/- each. 25. Accused-appellants are directed to deposit the fine of Rs. 2,000/- each. 25. Accused-appellants are directed to deposit the fine of Rs. 2,000/- each before lower judiciary within three months from the date of passing of the judgment and their released and in default of payment of fine as directed above, they shall undergo simple imprisonment for a period of fifteen days. 26. Appeal is partly allowed in the above terms. 27. Office is directed to transmit a copy of this order to the learned Sessions Judge, Mirzapur for compliance. 28. Office is also directed to send back the record of the trial court immediately. 29. Sri Chetan Chaterjee and Miss Nishi Mehrotra, learned Amicus Cuarie have argued this appeal on behalf of appellants, Mukesh @ Jeet Lal @ Jetaye and Hari Narain @ Devganda @ Jhinguri and they shall be paid a sum of Rs. 15,000/- each as remuneration by High Court Legal Aid Committee.