Point of Law: 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.”

JUDGMENT :

1. As per order of this Court dated 1.11.2018, the appeal in respect of appellant no. 4 Bhoop Ram son Ganga Ram is abated.

2. Sri Javed Habib, learned Advocate is pressing this appeal on behalf of surviving appellant no. 1 Faqirey, appellant no. 2 Hori and appellant no. 3 Makhan.

3. This criminal appeal has been filed against the judgment and order dated 22.4.1983 passed by Addl. Sessions Judge, Pilibhit in S.T. No. 19 of 1983 (State vs. Faqirey and others), under Section 307 I.P.C., P.S. Sarkhera, districtPilibhit, whereby learned Judge convicted and sentenced the appellants to 4 years rigorous imprisonment under Section 307 read with 34 I.P.C.

4. The prosecution story in brief is that there was dispute between the accused-appellants Bhoop Singh, Fakrey, Hori and Ram Gulam, cousin brother of complainant Parmeshwari Dayal regarding 'Mendh'. About 20 to 25 days before the incident dated 11.1.1981 Parmeshwar Dayal had slapped accused Faqirey, following which the accused Faqirey and his other family members become enmical with the complainant. On 11.1.1981 at about 1:00 O'clock in the noon when the complainant was taking bath near the well of his house, the accused Faqirey, Hori, Bhoop Ram and Makhan reached there. Accused Makhan was armed with S.B.B.L. Gun, accused Faqirey and Hori armed with country made pistol and accused Bhoop Singh armed with lathi surrounded him. Accused Faqirey exhorted other accused persons to kill Parmeshwari Dayal as a revenge of his having slapped him. On his exhortation accused Makhan, Hori Lal and Faqirey himself fired with intention to kill, fired upon him with their respective firearms, as a result of which the complainant sustained firearm injuries on his back and buttocks. The incident was witnessed by Fatehy Chand (PW2) and Gokul Prasad.

5. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Pilibhit framed the charge against the appellants under Sections 307/34 to which the appellants pleaded not guilty and claimed to be tried.

6. To bring home guilt of the appellants, the prosecution examined four witnesses. PW1 Parmeshwar Dayal (injured), PW2 Gokul Prasad, PW3 Constable Ram Kirpal, who prepared the chik FIR, PW4 S.H.O., Ram Niwas Sharma, PW5 Dr. K.P. Dubey, PW6 Dr. A.K. Srivastava.

7. PW5 Dr. K.P. Dubey has examined the injured/complainant (PW1) and found following injuries on the person of the injured ;

“1. Multiple gunshot injuries in an area of 25cm x 24cm each of the size of 0.2cm x 0.2cm x depth kept under observation over both the buttocks extending upto the level of 4th lumber vertibrae back side. No blackening or tattooing was present around the wound.

2. Abrasion 2cm x 1cm over the left side leg in anterior aspect middle 1/3rd.”

8. The doctor in his opinion has stated that injury no. 1 was caused by firearm and injury no. 2 by friction of some hard object. Injury no. 2 was simple in nature, while injury no. 1 was kept in observation.

9. At the very outset, learned counsel for the appellants, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant.

10. In furtherance to his submission, the learned counsel for the accused-appellants submits that the incident had taken place in the year 1981 and the accused-appellants were convicted in the year 1983. Accused-appellant no. 1 Faqirey was 21 years of age, accused-appellant no. 2 Hori was 28 years of age and accused-appellant no. 3 Makhan was aged about 34 years respectively at the time of incident and at present the appellant no. 1 Faqirey is more than 62 years of age, appellant no. 2 Hori is around 20 years of age and accused Makhan is more than 75 years of age at present. He also submits that all the accused-appellants are absolutely innocent and they had not int