In criminal appeals involving extreme delays, while a conviction for an unlawful assembly is sustained upon consistent evidence, the appellate court may exercise judicial discretion to modify the custodial sentence into a compensatory order to satisfy the requirements of proportionate and meaningful justice.

JUDGMENT :

AVNISH SAXENA, J.

1. The present appeal under Section 374(2) CrPC is on judgment after 40 years. Out of six named accused-appellants, five have already passed away and the appeal is abated against them. The sole surviving appellant is appellant no.6, Chhotoo, who is presently 64 years of age.

2. The above particulars are mentioned at the threshold owing to the reason that the learned counsel for the appellant has not only argued the appeal solely on this aspect but has also laid before the court and relied on plethora of rulings on this aspect, which will be discussed at later part of the judgment.

3. The trial court while recording judgment of conviction dated 28.01.1986 against all the six accused-appellants in Sessions Trial No.82 of 1985 (State Vs. Kanhaiya and five others), arising out of Case Crime No.204 of 1984, Police Station Rani Ki Sarai, District Azamgarh, for offence under Sections 147, 148, 149, 307, 324, 323, 452 IPC has sentenced all the accused-appellants. As this Court is concerned about the appeal filed by the Chhotoo, who was shown in the F.I.R. carrying the lathi, danda (cane and stick) along with the co-accused Ramdev and Sudama was sentenced to two years rigorous imprisonment for offence under Section 147 IPC, one year rigorous imprisonment for offence under Section 323 IPC, two years rigorous imprisonment for offence under Section 452 IPC, four years rigorous imprisonment for offence under Section 307 read with 149 IPC and two years rigorous imprisonment for offence under Section 324 read with 149 IPC. All the sentences were directed to run concurrently.

4. The prosecution case set out from the first information report dated 21.12.1984 lodged at 1:30 a.m. for the incident carried out on 20.12.1984 at 11:30 p.m. lodged by the Ramnath s/o Ram Prasad that he has one month old property dispute with the accused-appellants, particularly, Ramdev Pasi. In the night of 20.12.1984, while the informant was sleeping in his house along with his family, there was a knock at the door. The informant’s wife Asharfi Devi has opened the door, on which, Phool Chand carrying country made pistol, Kanhaiya having knife in his hand, Shobha carrying ballam (a traditional Indian short spear with broad iron blade), Ramdev, Sudama and Chhotoo having lathi and danda (cane and stick) in their hands barged into the house of informant, started beating Asharfi Devi, wife of informant, Shyamli, Belawati, daughters of informant and Sukendar son of informant. Hearing the cry of his family members, the informant came out of the room, on which, Phool Chandra has opened fire at him with the intention to kill. He suffered gunshot injuries on his neck and right thigh. He ran outside the house for rescue. The villagers including Dubri s/o Ram Saran, Sombaru s/o Ram Charan, reached at the place with torch in their hands. The accused-appellants then sprinted away. The accused-appellants were identified in the light of lantern, burning in the house of informant and in the torch light of the villagers.

5. The five members of the informant’s family including the informant were badly injured and taken to the police station from where they were taken to Primary Health Center, Rani Ki Sarai, Azamgarh, where the injuries sustained by all the five family members were examined by Dr. C.P. Singh P.W.-5, from 2:10 a.m. to 3:30 a.m. on