Neither Sri Ajay Kumar Pal nor Sri Ashok Kumar has vs This criminal appeal has been filed against the on 26 May 2025

Judgment

1. Heard Sri Santosh Kumar Mishra, learned counsel for the appellants, Sri Jitendra Kumar Jaiswal, learned AGA for the State and perused the record.

2. Neither Sri Ajay Kumar Pal nor Sri Ashok Kumar has appeared on behalf of the first informant to press this appeal even in the revised call, as such in view of the law laid down by the Hon'ble Apex Court in the case of Bani Singh vs. State of U.P., (1996) 4 SCC 720. the instant appeal is being heard and decided.

3. This criminal appeal has been filed against the judgment and order dated 21.8.2020 passed by Sessions 2 Judge, Bhadohi at Gyanpur in Sessions Trial No. 99 of 2017 (State of U.P. Vs. Arunoday Pandey and others) arising out of Case Crime No. 298 of 2016, under Sections 323/34, 307/34, 504 IPC, Police Station-Aurai, District- Bhadohi, by which all the four accused-appellants have been convicted for the offence under Section 307/34 IPC and awarded the sentence of life imprisonment, under Section 323/34 IPC and awarded the sentence of one year's imprisonment and a fine of Rs. 1000/- with default stipulation. Sentence awarded to the accused under Section 323/34 IPC shall precede the sentence awarded under Section 307/34 IPC, however, acquitted the accused under Section 504 IPC.

4. Shorn of unnecessary details, the prosecution story as emerges from the written report of first informant Rampyare Vishwakarma is that on 7.11.2016, he alongwith his sons Anil Kumar, Rakesh Kumar and Sushil Kumar were working in his agricultural field, wherein at about 7 a.m., appellants Arunoday Pandey and his sons Shashank Pandey, Amitesh Pandey and Ashish Pandey armed with lathi, danda and gun reached there and started hurling abuses and assaulting them with lathi and danda.

5. It is further alleged that on the exhortation made by 3 Arunoday Pandey, Ashish Pandey with an intention to kill,

fired a shot upon Rakesh Kumar. Informant and his three sons received injuries. On raising alarm, number of persons of the vicinity reached there and witnessed the incident. The accused persons thereafter made their escape good towards their home.

6. On the basis of said written report, the first information report was lodged against the accused appellants, which was registered vide Case Crime No. 298 of 2016, under Sections 323, 307, 504 IPC, Police Station-Aurai, District- Bhadohi. The carbon copy of the corresponding G.D. Entry No. 11 at 7:45 a.m. dated 7.11.2016 was also prepared.

7. After registration of the first information report, the police prepared the majroobi chitthi of the injured and sent them for medical examination through constable Jalal Uddin. The injured Anil Vishwakarma, Rakesh Kumar, Sushil Vishwakarma and Rampyare Vishwakarma have been medically examined by P.W.-5 Dr. Awadhesh Singh at Community Health Centre, Aurai and their medical examination report has been prepared and proved by P.W.- 5, which shall be discussed in the later part of the judgment. After medical examination, the investigation was entrusted 4 to P.W.-8- Awadhesh Kumar Singh, who recorded the statement of the relevant witnesses and concluded the investigation and submitted the charge-sheet against the accused-persons under Sections 323, 307, 504 IPC, on which, learned Magistrate had taken cognizance, however, since case was exclusively triable by the court of Sessions, it was committed to the Sessions Court, where it was registered vide Session Trial No. 99 of 2017 (State Vs. Arunoday Pandey and three others). The trial Court thereafter framed the charges against the accused-persons under Section 307 read with section 34 IPC, Section 323 read with section 34 and 504 IPC. The said charges were read out and explained to the accused- appellants, who pleaded not guilty and claimed to be tried.

8. The prosecution, in order to bring home the charges against the accused-appellants, has produced as many as nine prosecution witnesses and number of relevant documents have also been produced and brought on record, which has been proved and marked as Exbt. Ka-1 to Exbt. Ka-18. Their testimony in brief is enumerated as under :-

9. Rampyare Vishwakarma (P.W.-1) in his examination in- chief has stated, that the incident had taken place on 7.11.2016 at 7 a.m. when he was at his house, however, then corrected himself and states that he was present at the place of incident. He further stated that he alongwith his sons Rakesh, Anil, Sushil 5 and daughter in-law Bindu was present in his field and working there. The said field has been purchased from one Ishwar Pandey, brother of Arunoday Pandey and his name has been mutated in the revenue records. Meanwhile, Arunoday Pandey, Shashank Pandey, Amitesh Pandey and Ashish Pandey reached there armed with lathi, danda and gun and started hurling abuses. On exhortation made by Arunoday Pandey, all the accused persons started the assault. Ashish Pandey was having a gun, whereas other accused persons were having lathi and danda. On account of assault made by them, he alongwith Sushil and Anil suffered injuries by lathi and bricks, whereas Rakesh was hit by fire-arm. Ashish with an intention to kill Rakesh, fired a shot. Bindu also received injuries by bricks. After the incident, they reached the police station and lodged the report on the basis of written report, which has been proved and marked as Exbt. Ka-1. He further states that, they were medically examined at the CHC Aurai and thereafter Anil, Rakesh and Sushil were referred to BHU Trauma Centre, Varanasi and remained under medical treatment. The shot fired by Ashish hit Rakesh on his shoulder.

10. During cross examination, he states that agricultural field in question was purchased in 2011 and 2013, in respect of which, civil case was already pending and no legal partition had taken place and subsequent to the incident, stay order was 6 granted by the Court. The sale-deed of the field in question is in the name of his wife Vimla Devi. He alongwith Rakesh, Anil and Bindu were medically examined together. Lathi was 4 ½ -5 feet long and being wielded from a distance of 5 feet, consequent to which, he received injuries on back and nose and was bleeding. The victims were examined within 15-20 minutes and thereafter the victims were referred to BHU Trauma Centre. Rakesh regained consciousness in the Trauma Centre.

11. He further stated that the fire was shot from a distance of 10 meters. He further stated that three shots were fired by Ashish and he was hit by lathi on his back. Bindu was hit while pelting stones thrown by Arunoday. At the time of beating, they have not raised any alarm. He never visited BHU Trauma Centre to enquire about the health of his son.

12. Anil Vishwakarma (P.W.-2) is the other injured witness, who stated that the incident is dated 7.11.2016 at about 7 a.m. and at the relevant time, he was working in his field alongwith Rakesh, his father Rampyare and Sushil and sister in-law Bindu. Accused Arunoday, Amitesh and Shashank were having lathi, danda while Ashish was having a gun. They reached there and started hurling abuses and on exhortation of Arunoday, all started assaulting them. Ashish fired a shot from his gun, which hit Rakesh on his left shoulder. He was hit by lathi wielded by Arunoday and Shashank, consequent to which, he received 7 injuries and suffered a fracture injury. The villagers were attracted hearing the noise and witnessed the incident and tried to rescue them. Meanwhile, the assailants made their escape good. The information in respect of which was lodged by his father Rampyare. The police got them medically examined at PHC Aurai and thereafter he, Rakesh and Sushil were referred to Trauma Centre BHU.

13. During cross examination, he stated that at the time of incident they were working in the field, which was got mutated in the name of his mother. The said sale-deed was made by Ishwar Chand Pandey and in respect of the said field, civil proceedings were already pending between the parties and there is a stay order by the civil court. It is wrong to state that in the meantime, they were making an attempt to take possession by digging the foundation. He further stated that in respect of the said land, there was a civil litigation between Ishwar Chand and accused Arunoday and during the pendency of the civil proceeding, they had got the sale-deed executed. It is further candidly stated that no legal partition has been made between Ishwar Chand and Arunoday. All the assailants reached together and started hurling abuses stating, as to why they were working in the field and thereafter started assaulting, consequent to which, he received injuries. The assailants assaulted them from the distance of 2-3 feet, whereas the pelting of stones was resorted to from a 8 distance of 6-7 feet, however, at the time of pelting of stones, they made an attempt to escape, but could not. On the exhortation made by Arunoday, Ashish with an intention to kill Rakesh, fired a shot.

14. Rakesh Kumar (P.W.-3) in his examination in-chief states that the incident is dated 7.11.2016 at about 7 a.m. On that day he alongwith his father and two younger brothers Sushil and Anil and his wife Bindu were working in the field. On the date of incident, Arunoday, Ashish, Amitesh and Shashank reached there and stated that they do not own anything at the said place. At the relevant time, Ashish was having a gun in his hand, while other three were having lathi. Arunoday exhorted to assault them and only then they would leave the place. Ashish fired from his gun, which hit him on his shoulder. Arunoday and Amitesh started assaulting Anil and Sushil by a danda. His wife was hit by pelting stones. His father also received injuries on account of their assault. The said incident is said to have been witnessed by Sunil, Prajapati, Karan Vishwakarma, Sanjay and Umesh. After the incident, they reached the police station and thereafter he was medically examined at PHC Aurai and thereafter referred to BHU Trauma Centre.

15. During cross examination, he states that the disputed land is plot No. 91 and in respect of the said land, civil proceedings were already in progress prior to the incident. The registration of 9 the said land was in the name of his mother Vimla Devi, which was made in the year 2013. He showed his ignorance, if prior to the incident, there has been any partition made between Arunoday and Ishwar Chand. He further states that despite the civil proceedings going on in respect of the land, they had purchased the share belonging to Ishwar Chand. There has been no legal partition between Ishwar Chand and Arunoday. He further states that the incident lasted for 5 to 7 minutes. They saw the assailants, while coming, from the distance of 30-35 meters. First Anil received injuries and when they tried to rescue him, then they also received injuries, Anil did not receive any other injury except on his hand. His father also received injuries. Apart from Anil and his father, Sushil and his wife also received injuries. On raising alarm, Ashok, Sanjay Umesh were coming to rescue them but reached there after the assailants had left. After examination of injuries at the hospital they were referred to Trauma Centre BHU. The fire was made from the front but he took a turn and probably three shots were fired from the distance of 10-12-14 feet. The shot was fired from the big gun, which was single barrel. The last shot hit him. Thereafter he made his escape good. The shot was fired after reloading the gun. His statement was recorded after his return from the Trauma Centre. His injuries were x-rayed and C.T. Scan was done, however, x- ray plate and report was not given to them. He did not receive 10 any lathi injury. He denied the suggestion that the x-ray and C.T. Scan was not carried out and he was not admitted. He further denied the suggestion that the injuries have been manipulated.

16. Sushil Vishwakarma (P.W.-4) is an another injured witness. He, in examination in-chief, has stated that the incident had occurred on 7.11.2016 at 7 a.m. At the relevant time of incident, he alongwith his father, brothers Rakesh and Anil and sister in- law Bindu were present on the agricultural land purchased by her mother. When Ashish Pandey, Shashank Pandey, Amitesh Pandey and Arunoday reached there, Arunoday, Shashank, Amitesh were armed with lathi and Ashish Pandey was armed with a gun, who started hurling abuses and on the exhortation of Arunoday, assaulted the victims then Ashish fired shot, which hit his brother Rakesh, who fell down. His sister in-law was assaulted by Arunoday with bricks and lathi and he was assaulted by Arunoday and Amitesh. Anil also received injuries. The said incident was witnessed by Karan Vishwakarma, Sanjay Vishwakarma, Umesh Vishwakarma, who took them to the police station. His mother and father were medically examined at Block Aurai, however he was not examined there and he, Anil and Rakesh were referred to Varanasi and medically treated at BHU Trauma Centre.

17. During cross examination, he states that shots were fired by Ashish Kumar Pandey. He further states that he had 11 witnessed the assailants from the distance of 10-20 feet, however, he does not remember, when he went to Varanasi as he became unconscious, where his brothers Rakesh and Sunil Kumar were also present. His injuries were x-rayed. He was interrogated by the Investigating Officer after about a week or ten days. He had informed the Investigating Officer about the factum of them, becoming unconscious, however, if the said fact had not been mentioned by the Investigating officer, he cannot assign any reason for its omission. He remained at the Trauma Centre for 5-6 days, however, he cannot state as to when he was discharged. He further states that the gun was about 3 feet long, however, it was a single barrel or double barrel could not be stated by him. The gun was not reloaded before him.

18. He further denied the suggestion that no incident had occurred and false case was registered. He further showed his ignorance, as to whether any civil case between his mother and Arunoday is pending. It is wrong to state that he has not received any injury and the fake injuries were manipulated.

19. Dr. Awadhesh Singh (P.W.-5) is the Incharge Medical Officer CHC Naugarh, District- Chandauli. He, in his examination in-chief, has stated that on 7.11.2016 at about 8 a.m. he had examined Anil Vishwakarma, at 8.10 a.m. he had examined Rakesh, at 8.20 a.m. he had examined Sushil and at 8.30 a.m. he had examined Rampyare Vishwakarma and the following 12 injuries on the injured were noted by the doctor :- Anil Vishwakarma son of Rampyare, age 32 years was brought by C.P. Jaluluddin, P.S. Aurai. Following injuries were found on his body- (1) Lacerated wound with contused swelling of left hand of little finger and index finger, wound size 4×6 cm muscle deep. (2) Contused swelling on left parietal region 2.0 cm above left ear. Opinion:-(1) Injury no.1 KUO and injury no.2 simple in nature caused by blunt and hard object. On same day, Rakesh S/O Rampyare, age 35 years was brought by Constable Jaluluddin and was examined at 8:10 A.M. Following injuries were found on his body:- (1)Gunshot injury, entry wound present on left scapula below scapula joint. Exit wound not present. Opinion: - Injury keep under observation, advised X-ray. On same day, Sushil S/O Rampyare, age 27 years was brought by Constable Jaluluddin and was examined at 8:20 A.M. Following injuries were found on his body: - (1) Lacerated wound 5.0 c.m x 0.5 c.m x bone deep on left parietal bone 6.0 c.m above from left ear root. (2) Contused swelling 25 c.m x 2 c.m on left side of chest laterally. (3) Abrasion on left scapula 4 c.m x 2 c.m on just at the tip of left scapula region. Opinion:-Injury no.1 keep under observation, advised x-ray and injury no. 2 and 3 caused by blunt and hard object, simple in nature On same day, Rampyare Vishwakarma S/ O Vitthal, age 55 years was brought by Constable Jaluluddin and was examined at 8:30 A.M. Following injuries were found on his body:- (1) Contusion swelling on nose and bleeding seen, nose size 4x3c.m. (2) Abrasion on left side on wrist joint size 3 c.m. x1 c.m. (3) Abrasion on left forearm 6.5 c.m.above from left wrist. 13 All injuries were simple in nature.

20. During cross examination, he stated that he had not mentioned the duration of injuries in the injury report. He has further stated that he had not referred any injured to BHU Trauma Centre. He has further stated that the injuries of all the injured were not simple in nature, however, in none of the injury reports of the victims, he has noted that the injuries were grievous in nature.

21. In the injury report of Rakesh, he has not noted that the injuries were dangerous to life. He has not prepared any supplementary injury report of the injured. X-ray report plates, C.T. Scan report of any of the injured was not brought before him. The dimension of the gun shot injury of Rakesh has not been mentioned. He does not remember if all the injured had reached him on foot, which was written on the basis of query made from the injured and they were in conscious state. He further denied the suggestion that Rakesh did not receive any gun shot injury and false report has been prepared.

22. Dr. Anil Shrigar (P.W.-6) is the another Medical Officer, who had examined the injuries of Bindu Devi, whose injuries were examined on 7.11.2016 2.45 p.m. She suffered a swelling and complaint of pain on her waist, which was simple in nature and fresh. Injury No. 1 could not be caused by pelting stones. He further denied the suggestion that the victim did not receive any 14 injury and fake injuries were manipulated.

23. Constable Ramesh Chandra Singh (P.W.-7) has stated that at the relevant time, he was posted as constable moharrir on

7.11.2016 and on the basis of written report, he had lodged the FIR vide Case Crime No. 298 of 2016, under Sections 307, 323, 504 IPC corresponding G.D. Entry of which was prepared vide G.D. Entry No. 11 at 7.45 p.m. dated 7.11.2016. During cross examination, he has stated that majroobi chitthi of the injured were prepared by him, though on the majroobi chithi of Rampyare, case crime number and sections are mentioned, however, on the majroobi chitthi of other, case number and sections are not mentioned. Majroobi chithi was prepared after examining the injured. At the time of preparing majroobi chitthi, none of the injured was in an unconscious state. He further denied the suggestion that under the influence of the first informant, false FIR and G.D. Entry, making it anti-dated has been prepared.

24. Awadhesh Kumar Singh (P.W.-8) is the Sub-Inspector, who at the relevant time was posted as Head Constable of Police Station-Aurai, District- Bhadohi. Pursuant to order dated

4.1.2017, the investigation was entrusted to him. He thereafter recorded the statement of the witnesses and the accused persons. The recovery of rifle was made from the house of Arunoday, of which, recovery memo has been prepared, which 15 has been proved and marked as Exbt. Ka-12. He has proved the other documents for prosecution of the accused Arunoday under Arms Act.

25. Satya Prakash Yadav (P.W.9) has stated that he was working as office attendant at Charakdhar Diagnostic Pvt. Ltd. since 4.4.2016. Injured Rakesh and Sushil were referred to Charakdhar Diagnostic Pvt. Ltd. for C.T. Scan from BHU Trauma Centre. Dr. Avinash V. carried out the C.E.C.T thorax report and C.T. scan of injured Rakesh and Sushil and the said witness has proved the reports from Charakdhar Diagnostic Pvt. Ltd., which has been proved and marked as Exbt. Ka-16, 17, 18.

26. After concluding the statement of the prosecution witnesses, statement of the accused-appellants under Section 313 CrPC has been recorded. The accused-appellants, in their statement under Section 313 CrPC, claimed the entire prosecution evidence of the witnesses to be false and fabricated and denied the prosecution story and further stated that on account of land dispute, in respect of which, civil proceedings were already pending, the instant false case has been cooked up to exert the pressure, however no evidence was produced by the accused in their defence. Documentary evidence through List 80-Kha pertaining to civil and revenue litigation has been brought on record by the accused persons relating to Suit No. 736, under Section 34 of the Land Revenue Act. Original Suit No. 471/11 16 (Arunoday and others Vs. Smt. Vimla Devi and others) and the certified copy of the Civil Revision No. 57/18 (Vimla Devi Vs. Arunoday and others).

27. The trial Court, after appreciating the evidence and material on record and by placing implicit reliance upon the testimony of the witnesses and the documentary evidence, has held that prosecution has successfully proved the case against the accused-appellants and the explanation tendered by the appellants was found inadequate and false and as such, they are liable to be convicted for the offence under Section 307 read with section 34 IPC and 323 read with section 34 IPC, however, acquitting the accused under Section 504 IPC.

28. Being aggrieved and dissatisfied by the said judgment and order, the instant appeal has been filed by the appellants.

29. Learned counsel for the appellants has submitted that trial court in the instant case has not appreciated the evidence and material on record in right perspective and has illegally recorded the finding of conviction and sentence against the appellants.

30. Learned counsel for the appellants has next submitted that findings of conviction based on the testimony of the witnesses, is in fact based on surmises and conjectures, which can not be sustained being bad in law.

31. Learned counsel for the appellants has next submitted that from the entire evidence adduced during the course of trial, it is 17 admitted fact that the accused-appellants and the complainant party were highly inimical as number of civil litigations were pending between them and despite the fact that there was no legal partition of property between Arunoday and his brother Ishwar Chand, who are the real brothers, yet during the pendency of the suit, the property has been illegally purchased by the complainant party, which led to the dispute between the parties resulting in assault and an attempt was made to grab the disputed land without waiting for the final decision of the civil court.

32. Learned counsel for the appellants has next submitted that upon going through the injuries of the injured, we find that most of the said injuries caused to the victim, were simple in nature and on the non vital part of their body. He has further submitted that even according to the prosecution own case, a sudden fire, which hit Rakesh, was resorted by Ashish and is said to have been made from the distance of 10 meters. Even the injury caused to the victim Rakesh is on the scapula i.e. non vital part of the body and even according to the prosecution own case, the said injury has not been noted to be dangerous to life and has not caused any internal damage. Even the dimension of the gun shot injury has not been mentioned by the doctor. Except the single gun shot wound of entry caused to Rakesh by a gun, the other injuries are said to have been caused by lathi, a non lethal 18 weapon and that too mostly on the non vital parts of the body of the victims, which has not caused any fracture injury to the victim. From the nature of injuries caused to the victim by no stretch of imagination, it can be said that accused had an intention to cause death of the victim, rather on account of pending civil litigation between the parties and to teach them a lesson, the appellants had assaulted the victim causing injuries and by no stretch of imagination the said injuries can be said to be dangerous to life and, therefore, no offence under Section 307 IPC is made out against the accused-appellants. The finding of conviction recorded against the appellants under Section 307 read with section 34 IPC is therefore wholly illegal and liable to be said aside.

33. Learned counsel for the appellants has further submitted that even otherwise also looking to the nature of injuries caused to the victims, and the backdrop and manner in which such injuries are said to have been caused allegedly in furtherance of common intention the sentence of life imprisonment awarded to the appellants is too severe and liable to be set aside.

34. Per contra, learned AGA for the State has supported the impugned judgment and order and submitted that the accused persons herein have committed the offence, which stood proved beyond reasonable doubt from the evidence adduced during the course of trial and pointed out towards guilt of the appellants in 19 the commission of the offence charged with and as such, impugned judgment and order passed by the trial court suffers from no illegality and is liable to be affirmed.

35. Having considered the rival submissions made by the learned counsel for the parties and taking into considering the entire evidence adduced during the course of trial, it is evident that the incident had occurred on 7.11.2016 at 7 a.m., consequent to which, the first information report has been lodged. All the witnesses of fact P.W.-1, P.W.-2, P.W.-3 and P.W.- 4, who are injured witnesses, have corroborated the prosecution case in material particulars.

36. From their testimony, it is evident that on the day of incident all the accused-appellants armed with lathi, danda and gun, had reached the agricultural field, on which, the complainant party was working. As per the prosecution case, the said agricultural field was infact purchased from one Ishwar Pandey real brother of appellant Arunoday Pandey in the name of Vimla Devi wife of first informant Rampyare Vishwakarma and her name was mutated in the revenue records, though the civil litigation between the parties was still pending and legal partition of the said agricultural land was not made between Arunoday Pandey and his brother Ishwar Pandey, yet during the pendency of the civil proceedings, the agricultural field was purchased and being aggrieved and in the backdrop of the said circumstances, 20 the assailants, four in number reached the place of incident and after hurling abuses started wielding lathi and on the exhortation of Arunoday, Ashish with an intention to kill Rakesh, fired a shot, which hit him on the scapula region. The other accused- appellants, who were armed with lathi, also assaulted the victims, consequent to which, they received injuries and have been medically examined by Dr. Awadhesh Singh (P.W.-5). The said injuries have been proved and exhibited by the doctor, however, from the perusal of the said injuries, most of them have been found to be simple in nature and caused on the non vital part of the body said to be caused by lathi, which admittedly is a non lethal weapon.

37. Apart from the said three witnesses, accused Ashish is said to have fired upon the victim Rakesh on the exhortation of Arunoday Pandey, consequent to which, he received a fire arm injury on his scapula region and from the perusal of CECT report of the victim Rakesh, the doctor has noted two metallic foreign body seen in the left infra-clavicular region and according to the CECT report of victim Sushil, he is said to have suffered a hairline fracture of the anterior aspect of the 8th rib on the right side.

38. The trial court after appreciating the material on record and considering the nature of injuries caused to the victim has recorded the finding of conviction against the appellants under 21 Section 307/34 IPC and 323/34 IPC and the said finding of conviction is based on proper appreciation of the evidence recorded during the course of trial and cannot be said to be perverse or illegal and based on surmises and conjectures as argued by the counsel for the appellants.

39. It is admitted fact that at the time of purchasing the agricultural field, which has been the bone of contention between two parties, no legal partition had taken place between two brothers Ishwar Chand and Arunoday Pandey (appellant) yet the agricultural field was purchased by the complainant party in the year 2011 and 2013 and since then, they were in actual physical possession of the said plot and at the time of incident, they were working on the said field when the assailants are said to have reached there and with an intention to dispossess them, assaulted them with lathi, and danda and firing shot, which hit the victim Rakesh and also causing injuries to Bindu by pelting stones, which factum has been clinchingly and cogently established from the evidence adduced during the course of trial and, therefore, we are of the opinion that the trial court has rightly convicted the appellants under Section 307 read with section 34 IPC and 323 read with section 34 IPC as the present incident has been committed in furtherance of common intention and, therefore, in the backdrop of the said evidence and the material on record, we are of the opinion that the findings of 22 conviction recorded against the appellant under Section 307/34, 323/34 IPC does not suffer from any illegality or impropriety and in our opinion is liable to be affirmed.

40. Now coming to the question of sentence, it has been submitted by the learned counsel for the appellants that even according to the statement of P.W.-5, the doctor, who has examined the injuries as well as the CECT report, has not noted the said injuries to be dangerous to life and infact no internal damage has been caused to any of the victims causing any fracture injury as noted by the doctor, who performed X-ray, wherein it has been categorically stated that no obvious evidence of any fracture is noted in the X-ray report of Sushil though in his CECT report, it has been pointed out that only hairline fracture is seen in the anterior aspect of the 8 th rib on the right side.

41. So far as injury of Rakesh, who is said to have been fired upon, two metallic foreign body is said to have been seen in the left infra-clavicular region, however, in the CECT report, no fracture or any other internal damage has been found by the doctor. So far as the injury reports of the other victims Anil and Rampyare Vishwakarma is concerned, they are simple in nature as noted by the doctor.

42. It is also germane to point out here that most of the injuries caused to the victim are on non vital part of the body and, thus in 23 the backdrop of the said circumstance and keeping in view the fact that civil litigations pending between the parties at the relevant time, consequent to which, the incident had taken place in a rash manner, just to teach a lesson to the complainant party, therefore, in our opinion extreme punishment of awarding life imprisonment to all the appellants under Section 307/34 IPC is too severe and liable to be modified, however, the sentence awarded to the appellants under Section 323/34 IPC is upheld, subject to the modification that it shall run concurrently not consecutively as held by the trial court.

43. It is further germane to point out here that from the custody certificate of the appellants, we find that accused-appellants Amitesh Pandey had already undergone 5 years and 25 days of incarceration with remission, accused Ashish Pandey had already undergone 5 years, 2 months and 6 days of incarceration with remission, whereas accused Shashank Pandey had already undergone 5 years and 29 days of incarceration with remission and accused Arunoday Pandey, who is now aged about 70 years had already undergone 4 years, 9 months and one day with remission and in the facts and circumstances of the case, we are of the opinion that the sentence awarded to the appellants is reduced to the period, which each of the appellants had already undergone, however, each of the appellants shall also liable to fine, which is quantified 24 at Rs. 25,000/- and in default of payment of fine shall further undergo 6 months rigorous imprisonment.

44. It is further directed that 2/3 of the amount of fine deposited by the four appellants shall be paid to the victims as compensation. Consequently, the instant criminal appeal stands party allowed in terms of the aforesaid orders. The conviction of the appellants under Section 307/34, 323/34 IPC is upheld, however, the sentence under Section 307/34 IPC is reduced to the period already undergone and further each of the appellants is liable to a fine of Rs. 25,000/- and default of payment of fine to further undergo six months R.I. in lieu of fine and further the conviction and sentence under Section 323/34 IPC is affirmed subject to the modification that both the sentences are held to run concurrently. The appellants are in jail. They be released forthwith, if not wanted in any other case subject to deposition of fine within two months from the date of release. 2/3rd of the amount of fine deposited shall be paid to the victims as compensation. The appellants are directed to furnish bail bonds u/s 437-A Cr.P.C. within a week from their release before trial court.

45. The Registrar (Compliance) is directed to communicate this order to the trial court and concern jail authority for compliance.

46. Let a copy of this judgment and order be sent to the court 25 concerned alongwith the trial court record within a week for compliance. The compliance report shall be sent by the court concerned to this Court within a further period of fifteen days. Order Date :- 26.5.2025 KU/- (Harvir Singh, J.) (Rajiv Gupta, J.)