JUDGMENT :

Ajit Singh, J.

1. As per order of this Court dated 28.9.2021, the appeal in respect of appellant No. 1 Faqir Mohd son of Imam Bux and appellant No. 4 Banney son of Mola Bux is abated.

Sri Abhai Saxena, learned Advocate is pressing this appeal on behalf of surviving appellant No. 2 Abdul Majid and appellant No. 3 Mushtaq.

2. This criminal appeal has been filed against the judgment and order dated14.10.1988 passed by Spl. Judge and Additional Session Judge, Moradabad in S.T. No. 42 of 1985 (State vs. Faqir Mohammad and Others), under Sections 379, 411, 307 I.P.C. and Section 25 Arms Act, P.S. Bilari, district-Moradabad, whereby learned Judge convicted and sentenced the appellants to 3 years rigorous imprisonment each under Section 411 I.P.C. and appellant No. 1 was convicted to 5 years rigorous imprisonment under Section 307 I.P.C. and appellant No. 2 was convicted to 2 years rigorous imprisonment under Section 25 Arms Act.

3. It was also directed that all the sentences shall run concurrently.

4. The prosecution story in brief is that on the intervening night of 20/21.9.1983 at about 3:00 a.m. the police had arrested four accused persons from the jungle of Village-Raipur, P.S. Bilari, while they were committing theft of electric wire. When S.H.O. Bhim Sen alongwith his team raided at the jungle, after seeing the police party, accused Faqir Mohammad with the intention to kill the police personal, fired at the police party with his pistol. Thereafter, he was caught by the police team and one country made pistol, live cartridges were allegedly recovered from his possession. The police team has also recovered stolen electric wire from the possession of the other accused persons.

5. At the very outset, learned counsel for the appellant, 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.

6. In furtherance to his submission, the learned counsel for the accused-appellants submits that the incident had taken place on 20/21.9.1983 and the accused-appellants were convicted for three years Rigorous Imprisonment under Section 411 I.P.C. Appellant No. 1 Faqir Mohammad was also convicted for five years R.I. under Section 307 I.P.C. and three years R.I. Under Section 25 Arms Act. At present accused appellant No. 2 Abdul Majid is aged about 75 years and accused-appellant No. 3 Mushtaq is aged about 62 years. He next submits that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial Court has convicted the accused-appellants on the basis of mere conjuncture while the appellants are absolutely innocent and have been falsely implicated in this case. Further submission is that accused-appellants are on bail since 27.10.1988 and prior to that they were in jail for sometime and therefore, he has requested that a lenient view may be adopted and the sentence may be converted either undergone or the sentence may be substantially reduced. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments.

7. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.

8. I have perused the entire material available on record and the evidence as well as judgment of the trial Court. The learned counsel for the accused-appellants does not want to press the appeal on its merit and requests to take a lenient view of the matter.

9. 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