JUDGMENT
B.K. Sharma, J.
1. This is a criminal appeal against the judgment and order dated 6-8-1980 passed by Sri Ikrarnul Bari, the then 17th Additional Sessions Judge, Bijnor in Session Trial No. 301 of 1979 State v. Madan Pal and another, whereby he convicted the accused appellant No. I Madan Pal of the offence under Section 307, I.P.C. and convicted Mahi Pal accused appellant No. 2 of the offence under Section 307 read with Section 34, I.P.C. and sentenced each one of them to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/- and in the default of payment of fine to suffer simple imprisonment for a period of six months.
2. I have heard learned counsel for the parlies. I have also gone through the record.
3. The prosecution story is that Anoop Singh P.W. 2 and the accused-appellants who are his nephews lived in Village Hempur, P. S. Chandpur, that about an year before the occurrence the accused-appellants had stolen cash and a watch belonging to the daughter of Anoop Singh, that the relatives had decided that the accused would return the watch and the money but the accused-appellants did not carry out that direction till the date of the occurrence, instead they nurtured animosity towards Anoop Singh since then and used to threaten him with dire consequences, that they used to tell Anoop Singh that on getting an opportunity they would finish him. It is the further case of the prosecution that in the night of 23/24-5-1979 Anoop Singh and his wife Phool Wati P.W. 3 were sleeping at their Baithak that Arjun Singh was covered from neck to foot by rug, that a lantern was burning, that at about mid night the accused-appellants came to the Baithak of Anoop Singh, that the sound of their steps woke up Anoop Singh, that Mahipal accused-appellant exhorted Madan Pal accused-appellant to shoot, that Anoop Singh screamed, that Madan Pal, accused-appellant, at once fired his postal and shot at him, that he was injured in the chest and in the finger by that shot, that the accused-appellants were recognised by Anoop Singh and Phool Wati in the light of the lantern, that the alarm and the report of the shot attracted the neighbours who rushed to the place of the occurrence and saw the accused-appellants running away.
4. An oral FIR of the occurrence was dictated at the police station on 24-5-1979 at 8.00 A.M. by Anoop Singh injured against both the accused-appellants. The case was registered against them and investigation proceeded.
5. Dr. Ram Kumar Gupta medically examined Anoop Singh injured on 24-5-1979 at 9.00 A.M. He found the following injuries on his body:-
1. Abrasion 2″ x 1 3/4″ in the middle of chest along with surrounding contusion of 1 beneath around this abrasion, 2 1/2″ inner to left nipple, 2″ below the inner and of left collar bone. The margins were irregular in shape. There was clinical fracture of sternal end of left 3rd and 4th ribs. The chest wall was bulging and dropping down on each inspiration and expiration. X-ray was advised for treatment and confirmation. Anoop Singh was coughing and spitting phlegm with blood.
2. Lacerated wound 1 1/2″ x 1/2″ on the left little finger, front and outer aspect, bone was shining, Margins were irregular. It was tatooed with black powder.
3. Lacerated wound 1/5″ x 1/5″ with a flap of skin intact in the middle or left hand palm, 1 3/4″ above the root of left little finger, the surrounding skin was scorched (bluish in colour), margins irregular.
4. Lacerated wound 1/10″ x 1/10″ on the front of left 2″ above the root of thumb. Margins of surrounding skin scorched (bluish) in colour, X-ray was advised, in respect of injuries Nos. 2, 3 and 4 in left hand.
6. Injuries 1 and 2 were kept under observation.
7. Injury No. 1 was opined by the doctor as grievous in nature and nature of injury No. 2 was left to be assessed. In his opinion, other injuries were simple. He was further of the opinion that the injury No. 1 was caused by some blunt object, injuries Nos. 2,3 and 4 were caused by some fire arm, mat the duration of the injuries was fresh.
8. The S. 1. collected pellets from the bed of the victim and also took into custody his blood stained vest and the blood stained and perforated blanket. The blanket was torn on one side in the middle and above it there were mark of multiple tears and there were also blood stains 9″ away from the edge.
9. After concluding investigation, the I.O. submitted charge sheet and the accused-appellants were committed to the Court of Sessions to face their trial.
10. At the trial ocular testimony was given by Sri Anoop Singh injured, P.W. 2 and his wife Smt. Phool Wati, P.W. 3. Evidence of motive was also led at the trial. The doctor and the I.O. have also been examined. No evidence was led in defence.
11. The learned Session Judge believed the ocular testimony led by the prosecution at the trial and held that it established that Madan Pal and Mahi Pal accused-appellants who were real brothers inter se went at Baithak of Anoop Singh and Madan Pal accused-appellant fired at Anoop Singh at the exhortation of Mahi Pal, accused-appellant and injured him. He also accepted the evidence of motive.
12. He further held that while firing the shot the intention was to commit the murder of Anoop Singh. He consequently convicted and sentenced them as aforesaid.
13. Being aggrieved by the aforesaid conviction and sentence, this appeal has been preferred before this Court. Now before this Court, the learned counsel for the accused-appellants did not dispute that an occurrence took place as set-out by the prosecution. He also did not dispute the identity of the accused-appellants as the culprits and the role assigned to each by the prosecution. He also did not dispute the medical evidence. His contentions are only twofolds. One is that on facts of the case only the offence under Section 324, I.P.C. has been made out and that in this case a lenient view should be taken on the question of sentence. About the first contention he has placed reliance on the observation of the learned Session Judge in his judgment that no pellets had hit the chest of the victim, that the injured had explained at the trial that on being hit by pellets, he sprung from the bed and fell upon the paya of the cot and that the story of such fall is also given by Smt. Phool Wati, P.W. 3 and that the dimensions and nature of the injury make it probable that it was caused by a collision with the paya and that the doctor agrees with the proposition. His argument in short was that the injury No. 1 was not caused by the accused-appellants and that this injury No. 1 alone was found grievous by the doctor and that consequently the offence made out would be only under Section 324, I.P.C. and nothing more than that.
14. The Learned Session Judge had held that the shot was fired from a close range and that shooting from such a close range imports an obvious intention of causing death of the victim and it could amount to nothing else than a murder.
15. In my view, the settled legal position is that if the intention be to commit murder and in pursuance of that intention a person does an act towards its commission irrespective of the fact whether that act is the penultimate act or not, the offence under Section 307, I.P.C. would be made out and if the intention be to commit only culpable homicide the offence made out would (be) under Section 308, I.P.C. As a matter of fact, the injury No. 1 recorded by the doctor itself also must be held to be the direct consequence of the acts of the accused-appellants and so the accused-appellants cannot escape liability for having caused it. Further, it is not necessary that a bodily injury capable of causing death should have been inflicted before an offence of Section 307 or 308 of I.P.C. could be held to have been ceased. The intention of the culprit is to be gathered from all circumstances and not merely from the number, location and nature of the injury or injuries actually inflicted. The acts done by the accused appellants certainly fall within the definition of culpable homicide as defined under Section 299 of the I.P.C. Since further shots were not fired at the victim, it may not be safe to conclude that the intention was of committing murder itself and the offence that can be safely held to be made out was one under Section 308, I.P.C. which is a minor offence as compared with the offence under Section 307, I.P.C. Consequently the conviction of the accused-appellants under Section 307, I.P.C. should be reduced to one under Section 308, I.P.C.
16. Coming to the question of sentence, learned counsel for the accused-appellants pointed out that the accused appellants have already remained in jail as under trial and as a convict, that Mahipal accused-appellant No. 2 was arrested and produced before the Magistrate on 28-5-1979 and Madanpal accused-appellant No. 1 was arrested and produced before the Magistrate on 29-5-1979 and their bail application were rejected by the Magistrate on 30-5-1979 and that Mahipal accused-appellant No. 2 was admitted to bail by order of the Court of Session only on 4-6-1979, that similarly Madanpal accused-appellant No. 1 was admitted to bail by the Session Judge and bonds were furnished only on 11-6-1979. Thus Mahipal accused-appellant No. 2 was in custody for 7 days at that stage while Madanpal accused-appellant No. 1 was in custody for 14 days at that stage and then after the Session Judge convicted both the accused-appellants and took them into custody on 6th August 1980, that though both of them were admitted on bail by this Court only vide its order dated 18-8-1980, the bonds could be furnished only on 4-9-1980. Thus after conviction, they remained in jail for a period of 30 days. The learned counsel for the accused-appellants has also pointed out that since 4-9-1980 the accused-appellants are on bail from this Court upto this day which comes to more than 18 years. Lastly the learned counsel for the accused-appellants has relied upon the circumstance that the injured and the accused-appellants have entered into a compromise which was filed before this Court which was duly verified by the Chief Judicial Magistrate. His contention is that since the offences under Section 308, I.P.C. or 308/34, I.P.C. are not compoundable even with the permission of the Court, it cannot serve the purpose of compounding the offence in case a non-com-poundable offence is found to be established, however, it could be legitimately considered as a circumstance justifying the Court in accepting the prayer for reducing the quantum of sentence to the minimum so that the reconciliation between the parties that has taken place may continue and smooth relations be maintained. His prayer is that keeping in view the above circumstances; the sentence of the accused-appellants may be reduced to the period of imprisonment already undergone and that the sentence of fine may be maintained.
17. There is substance in the submission of the learned counsel for the accused-appellants. In such cases while reducing the sentence, the fine amount is normally enhanced. However, it appears unnecessary to enhance the fine when the parties have compromised.
18. For the reasons stated above, the appeal is only partly allowed. The conviction of the accused-appellant Madanpal for the offence under Section 307, I.P.C. is set aside but he is convicted of the offence under Section 308, I.P.C. and the sentence to the term of imprisonment already undergone by him as an under trial and as a convict. In case of Mahipal accused appellant No. 2, his conviction for the offence under Section 307/ 34, I.P.C. is set aside but he is convicted of the offence under Section 308/34, I.P.C. and he is sentenced to term of imprisonment already undergone by him as an under trial and as a convict and to pay a fine of Rs. 500/- and in the default of payment of fine to suffer simple imprisonment for a period of 15 days. Both the accused-appellants are given one month’s time to pay the fine in the Court of Session Judge, Bijnore. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged. However, in default of payment of fine within the time permitted, the learned Chief Judicial Magistrate, Bijnore shall get the defaulting accused-appellant arrested and consigned to the district jail concerned to serve out the sentence in default of payment of fine according to law.
19. Office to send a certified copy of this judgment to the Chief Judicial Magistrate concerned within a week from today by FAX/Registered Post. Chief Judicial Magistrate, Bijnore shall submit the compliance report to this Court by 15th May, 1999. The appeal shall be listed before this Bench on 19th May, 1999 for orders, along with compliance report of the Chief Judicial Magistrate, Bijnore.
20. Let a copy of this judgment be issued to the learned counsel of the accused-appellants within a week from today on payment of the usual copying charges.