Allahabad High Court
Lal Mani vs State on 19 May, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 13.02.2020 Delivered on : 19.05.2020
CRIMINAL APPEAL No. 85 of 1982
Lal Mani --------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Sri Sushil Kumar Dwivedi
For Respondent/State : Sri Amit Kumar Singh, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. This appeal has been preferred against judgment and order dated 07.01.1982 passed by learned VIIth Additional District and Sessions Judge, Allahabad in Session Trial No. 269 of 1979 (State vs. Lal Mani & Ors), under Section 307 IPC, P.S. Karchhana, District Allahabad, whereby the accused-appellant Lalmani has been convicted under Section 307 IPC and sentenced to five years rigorous imprisonment.
2. Prosecution version is that there was enmity between complainant Kamla Prasad (PW 1) and Sangam Lal (father of appellant) over dispute of land. On 25.10.1976 at about 10:30 a.m., accused-appellant Lalmani along with co-accused Lalji, Nankau @ Rajendra Prasad and Lal Babu, who are all sons of said Sangam Lal, came at the door of complainant. Accused-appellant Lalmani was having country made pistol and others were having lathis. On the issue of crop in disputed land, co-accused Lalji made exhortation to kill the complainant and consequently accused-appellant Lalmani fired a shot from country made pistol at the complainant. Resultantly complainant Kamla Prasad sustained pallet injuries at various parts of his body. Hearing noise, one Onkar Nath, Chhote Lal, Amrit Lal Pandey and others reached there but accused persons fled away from there.
3. Complainant Kamla Prasad reported the matter to police by filing tehrir Ex. Ka-3 and on that basis case was registered on 25.10.1976 at 12:35 pm under Section 307 IPC against all the four accused persons vide FIR Ex. Ka-2.
4. Injured Kamla Prasad was taken to hospital and he was medically examined by PW-2 Dr. D.N. Giri. As per MLC Ex. Ka-2, injured Kamla Prasad has sustained four injuries:
i- Gunshot firearm wound 1/10 x 1/10 cm on the left side of cheek 1 cm away from left angle of the mouth.
ii- Gunshot firearm wound 1/10 cm x 1/10 cm left side of the head ¼ cm above of the left ear.
iii- Gunshot firearm wound 1/10 cm x 1/10 cm on the right upper pinna of ear.
iv- Gunshot firearm wound 1/10 cm x 1/10 cm on left side neck 1 ½ above of the left clavicle.
v- Multiple gunshot firearm wound in an area of 9 cm x 5 cm on the left side chest.
vi- Multiple gunshot firearm wound in area of 3cm x 1 ½ in the right side of the chest.
vi- Multiple gunshot firearm wound in an area of 9 cm x 5 cm on the left upper arm.
viii- Multiple gunshot firearm wound in an area of 5 cm x 4 cm on the left forearm.
ix- Multiple gunshot firearm wound in an area of 4 cm x 5 cm back of palm.
x- Multiple gunshot firearm wound in 4 cm x 3 cm on the left side of abdomen.
xi- Multiple gunshot firearm wound in an area of 12 cm x 8 cm on the left side of thigh.
xii- Multiple gunshot firearm wound in an area of 6 cm x 4 cm front of left leg.
xiii- Multiple gunshot firearm wound in an area of 7 cm x 4 cm on the right upper elbow.
xiv- Multiple gunshot firearm wound in an area of 6 cm x 1 ½ on the right forearm.
5. Investigation was conducted by PW-5 D.C. Srivastava. Blood stained clothes of Kamla Prasad were taken into possession vide Ex. Ka-7. After completion of investigation, charge-sheet was filed against all the four accused persons.
6. Trial Court framed charge under Section 307 IPC against accused-appellant Lalmani, whereas co-accused Nankau @ Rajendra Prasad, Lal Babu and Lal Ji were charged under Section 302/34 IPC. Accused persons pleaded not guilty and claimed trial.
7. In order to bring home the guilt of accused-appellant, prosecution has examined six witnesses. After prosecution evidence, accused were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication.
8. After hearing and analyzing the evidence on record, accused-appellant Lalmani was convicted under Section 307 IPC and sentenced as stated in paragraph no.1 of this judgment, whereas co-accused Lalji, Lal Babu and Rajendar were acquitted.
9. Being aggrieved by the impugned judgment, accused-appellant has preferred the present appeal.
10. Heard Sri Sushil Kumar Dwivedi, Advocate holding brief of Sri Shudhanshu Pandey, learned counsel for the appellant and Sri Amit Kumar Singh, learned A.G.A for the State.
11. It has been argued by the learned counsel for the appellant that there are serious contradictions and inconsistencies in statement of PW-1 Kamla Prasad and PW-3 Amrit Lal. PW-1 Kamla Prasad has admitted that earlier there was litigation between father of accused-appellant and complainant. The description of place of incident is not corroborated by statement of Investigating Officer. PW-3 Amrit Lal is an inimical witness and that he has admitted that Sangam Lal has lodged a case against him and his brothers under Section 324 IPC. It was stated that PW-3 Amirt Lal is highly inimical. There was no immediate motive on part of accused-appellant to commit such an incident. It was submitted that occurrence has taken place in the house of accused-appellant wherein complainant party has attacked the family of accused-appellant and Sangam Lal, who is father of accused-appellant, has sustained injuries but those injuries have not been explained by prosecution. It was further submitted that on the date of occurrence, accused-appellant Lalmani was at Jabalpur and he was falsely implicated in this case on account of enmity. Learned counsel submitted that in view of various informities and contradictions, prosecution version is not reliable and thus, accused-appellant deserves acquittal.
12. Per contra, it has been submitted by learned State counsel that there is clear and cogent testimony of injured Kamla Prasad. No material contradiction or inconsistency could be shown in his statement. Injured has sustained as many as 14 injuries and that version of injured witness PW-1 Kamla Prasad is amply corroborated by medical evidence. Version of PW-1 Kamla Prasad has also been corroborated by PW-3 Amrit Lal. It was stated that there is ample evidence on record, which establishes guilt of appellant and that trial Court has appreciated all evidence in correct perspective and convicted accused-appellant Lalmani.
13. I have considered rival contentions and perused record.
14. In evidence, PW-1 Kamla Prasad has stated that accused-appellant Lalmani is a member of his extended family but there was enmity between them on account of land. He has sown millet in disputed land but accused-appellant was not allowing him to harvest the same. Earlier, the civil case regarding this land was decided in his favour. This witness further stated that on day of incident at around 10/10:30 AM, while he was sitting at the door of his house, accused-appellant Lalmani and co-accused Lal Ji, Nanka and Lal Babu came there. Lal Mani was having country made pistol and on the exhortation of co-accused Lal Ji, accused-appellant Lalmani has fired a shot at him (PW-1 Kamla Prasad) and resultantly, he (PW-1 Kamla Prasad) sustained pellet injuries all over his body. PW-1 Kamla Prasad has further stated that one Panna Lal, Amrit Lal and Chhotey have also reached at the spot. After sustaining injuries complainant/ PW-1 ran but fell down near the door of one Onkar Nath. PW-1 has proved tehreer Ex. Ka-1 and stated that he was medically examined at the hospital.
In cross-examination, PW-1 has admitted that alleged fire was shot from distance of 10-12 fit and when the fire was shot at him he was running towards northern side.
15. PW-2 Dr. D.N. Giri has medically examined injured vide Ex. Ka- 2 and on the same day, he has also examined Sangam Lal.
16. PW-3 Amrit Lal has stated that on the day of incident at about 10/10:30 a.m. while he was going to his field, after hearing noise, he reached at door of the house of Kamla Prasad and saw that accused-appellant Lalmani was having a pistol whereas other accused persons were having lathi. Lal Ji exhorted to kill complainant and consequently Lalmani has fired a shot at complainant Kamla Prasad causing several injuries to him.
17. PW-4 Head Constable Raghunath Singh has recorded FIR and general diary entry. PW-5 S.O. Dev Chand Srivastava has conducted investigation. PW-6 Prabhu Dayal ( X-ray technician T.B. Sapru Hospital) has proved X-ray report as Ex- 5.
18. The scrutiny of evidence shows that PW-1 Kamla Prasad has made clear and consistent statement regarding incident and that role of firing at PW-1 Kamla Prasad was attributed to accused-appellant Lalmani. It is correct that there was long standing enmity between the parties and litigation was also going on between them but this fact itself would not be sufficient to doubt the testimony of PW-1 Kamla Prasad. It is often said that enmity is a double edged weapon, which cuts both ways. On the one hand, enmity may be a ground to falsely implicate the opposite party whereas on the other, it may provide a motive to the opposite party to commit such an incident. In the instant case, it is apparent that complainant PW-1 has sustained several fire-arm injuries. There were pellet injuries all over his body. The alleged incident took place at 10/10:30 AM in mid of village. PW-1 Kamla Prasad has been subjected to cross-examination but so far as accused-appellant Lalmani is concerned, no such fact could emerge, so as to create any doubt in his testimony.
19. Though PW-3 Amrit Lal has also spoken in very clear terms that it was accused-appellant Lal Mani, who has caused injuries to Kamla Prasad by firing a shot at him, however in his cross-examination PW-3 Amrit Lal has admitted that a case was pending in High Court between him and father of accused-appellant and that earlier a case was also lodged against him as well as his brothers by Sangam Lal, who is father of accused-appellant. Thus, it is clear that he is an highly inimical witness. Considering all facts it does not appear safe to rely upon this witness.
20. However, even brushing aside the statement of PW-3 Amrit Lal, it is clear that statement of PW-1 Kamla Prasad is quite consistent and cogent and it is supported by medical evidence. It is well settled that conviction can be based on sole testimony of eye witness. In State of Maharashtra Vs. Ramlal Devappa Rathod and Ors. Reported in (2015) 10 SCALE 347, Hon'ble Supreme Court held that:
"The law on the point is well settled that a conviction can well be founded upon the testimony of a sole witness. However, as laid down in State of Haryana v. Inder Singh: (2002) 9 SCC 537 the testimony of a sole witness must be confidence inspiring and beyond suspicion, leaving no doubt in the mind of the Court. In Joseph v. State of Kerala : 2003 (2) SCC 465 it was stated that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. It was further stated in Ram Naresh v. State of Chhattisgarh (2012) 11 SCC 257 that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution."
In Gulam Sarbar Vs. State of Bihar (Now Jharkhand) reported in (2014) 2 SCJ 677, the Hon'ble Supreme Court held that:
"In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence."
In Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, the Hon'ble Supreme Court has held that:
"9. xxxxxxxxx As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
In the instant case it is apparent that the testimony of PW 1 Kamla Prasad is trustworthy and consistent. As stated earlier it finds ample support from medical evidence and no material contradiction or infirmity could be pointed out.
21. The plea of alibi was put up by defence and it was stated that at the time of alleged incident, accused-appellant was not present at scene of offence rather he was at Jabalpur. It is well settled that the onus of proving a plea of alibi is on the accused (vide 1978 Cr. L. J. 141 State of UP Vs Saughar Singh & Ors.). Therefore, the appellant must prove the plea of alibi to the satisfaction of the Court by producing cogent and consistent evidence so that the court comes affirmatively to the conclusion that the appellant could not have participated in the commission of horrendous crime in their own residence. However, the plea of alibi can also be spelt out from the prosecution evidence, if it is available therefrom. True it is that when a plea of alibi is taken, it is open to him to establish such plea by preponderance of probabilities and to make it 'probably reasonable'. But the fact remains that such plea of alibi must be proved with absolute certainty so as to completely exclude the possibilities of the appellants at the scene of the crime. Reliance can also be placed in this regard upon two rulings of the Apex Court reported in 1984 Cr. L. J.187 [Purna & Anr. vs State of U.P.,] and 1997 Cr. L.J. 2242 [Rajesh Kumar Vs. Dharam Vir.].
The Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in (2015) 4 SCC 749 has held as under :
"25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution.'' Thus, the burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities. Viewed in the light of sound proposition of law discussed in above referred foregoing paragraphs, it can be said that the burden on the accused is heavy as required under section 103 of the Indian Evidence Act which provides that the burden of proof as to any particular fact is on that person who wishes the court to believe in its existence. Therefore, the strict proof is required for establishing the plea of alibi.
22. In the instant case, the accused-appellant has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. Mere bald plea, that on day of incident, accused-appellant was at Jabalpur, is not sufficient to held that such plea has been established. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant at the scene of offence at the time of allged incident. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. Thus, plea of alibi taken by accused-appellant was rightly rejected by trial Court.
23. Plea of self defence was also raised by the defence and it was submitted in alleged incident, father of accused-appellant, namely, Sangam Lal has sustained injuires but prosecution has failed to explain the same, which caste a doubt on the authenticity of prosecution version. It was stated that complainant's family members, namely, Gyatri Prasad, Bhaiya Lal and others have come at the door of Sangam Lal and pelted stones and that Sangam Lal was given beatings by trespassing into the house. It was stated by the learned counsel for the appellant that Sangam Lal has sustained injuries in the same incident but prosecution has failed to explain that how the injuries were sustained by father of accused-appellant Lalmani, namely, Sangam Lal. It was also stated that accused-appellant has fired in self defence.
Perusal of record shows that it was suggested to PW-1 that complainant's family members have come at the door of Sangam Lal and pelted stones and that Sangam Lal was given beatings by them and consequently Sangal Lal has sustained injuries in the same incident. No doubt Sangam Lal has sustained injuries and that his injuries have been duly proved by PW-2 Dr. D.N. Giri, however, perusal of record goes to show that as per injury report of Sangam Lal, there were three injuries on his person, which includes two contusion and one lacerated wound and all the injuries were small in size and simple in nature. There can not be any doubt in legal position that it is incumbent upon the prosecution to explain that how accused has sustained injuries in the same incident but it is not ncessary that prosecution is bound to explain each and every type of injuries. Injuries of minor nature, as sustained by Sangam Lal, cannot be given much importance. The case put up by defence that alleged incident took place at the house of accused-appellant, has no basis as there is absolutely no evidence in support of this plea and even the probability of that fact is not made out. Site plan of spot also does not support this fact. On the other hand blood stains have been found on the spot alleged by prosecution. Considering entire evidence on record, it cannot be accepted that accused-appellant has fired alleged shot in self defence or that prosecution case becomes doubtful due to non-explanation of alleged injuries sustained by said Sangam Lal.
24. Here it may be noted that PW-1 Kamla Prasad is an injured witness. He has given vivid description of entire incident. No material contradiction or infirmity could be shown in his statement.The evidence of an injured witness deserves greater weight and firm, cogent and convincing reasons are required to discard the evidence of an injured witness. The evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, Hon'ble Apex court held:
"We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]'' Similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where the Apex Court reiterated the special evidentiary status accorded to the testimony of an injured witness. The deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459.
In fact the law journals are replete with legal position to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
25. Keeping in view the aforesaid position of law in mind, in the instant case, it may be seen that testimony of injured witness PW 1 Kamla Prasad is clear and cogent and nothing adverse could emerge in his cross-examination. His version is supported by medical evidence and it is consistent with evidence of investigating officer. There is no material contradiction and the defence had failed to demonstrate any such discrepancy, omission and improvement that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by the Apex Court. Here I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."
In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:
"11..... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."
In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, Hon'ble Apex Court held:
"The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
26. In the instant case, when the evidence on record is examined in the light of legal position discussed above, it is apparent that so far as culpability of accused-appellant Lalmani is concerned, as noticed above, the testimony of injured witnesses is clear and cogent and it has stood test of cross-examination. His version is supported by medical evidence and it is consistent with other evidence on record. No major contradiction or infirmity could be shown. In view of evidence on record, it is apparent that conviction of accused-appellant Lalmani is based on evidence and trial court was justified in convicting him and thus, conviction of accused-appellant Lalmani is upheld.
27. So far as sentence is concerned, it was stated by the learned counsel for the appellant that alleged incident took place on 25.10.1976 and after that period of about 43 years and six months has already been passed. Both accused-appellant as well as injured are members of same extended family. Accused-appellant Lalmani is an very old and infirm person and from the age mentioned in his statement under Section 313 Cr.P.C., it is clear that now accused-appellant is aged about 89 years. The injuries sustained by injured Kamla Prasad were simple in nature. It was stated that in view of above stated specific facts and circumstances of the case, no useful purpose would be served by sending accused-appellant in jail at this stage.
28. Sentence must be just and proper having regard to nature of offence and manner of its commission. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors. 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. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (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. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner
29. In the instant case, it is clear from the record that appellant is aged about 89 years and it was stated that he is suffering from various ailments. The alleged incident took place 25.10.1976 and since then period of about 43 years and six months has already been passed. Both complainant and injured are members of same extended family. Though, injured has sustained pellet injuries all over his body including at his stomach and chest but the injuries were opined as simple in nature. This appeal is pending since 1982 and accused is facing sword of proceedings since last four decades and that accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. It was stated that accused-appellant had already undergone period of more than two months imprisonment in this case. Considering all these aspects and position of law, no useful purpose would be served by sending accused-appellant to jail at this stage. It appears that ends of justice would met if accused-appellant is sentenced to the period already undergone along with fine of Rs. 7000/-.
30. In view of the aforesaid, conviction of accused-appellant under Section 307 IPC is upheld but sentence awarded by the trial Court is set aside. Accused-appellant Lalmani is sentenced to the period already undergone along with fine of Rs. 7000/- under Section 307 IPC. Accused-appellant is on bail, he is directed to deposit fine within two months from today before the Trial Court. In default of payment of fine, accused-appellant shall undergo six months imprisonment. Out of the total fine so deposited, an amount of Rs. 5000/- shall be released by the trial Court in favour of complainant/ injured Kamla Prasad.
31. Appeal is partly allowed in above terms.
32. A copy of this judgment along with record of trial court be sent to the court concerned.
Date: 19.05.2020 A. Tripathi (Raj Beer Singh, J)