# Kanhaiya & Ors v. State - **Citation:** (2026) 4 ILRA 1034 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-04-15 - **Case number:** Criminal Appeal No. 348 of 1986 - **Bench:** Avnish Saxena - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-ors-v-state-54683 - **Pages:** 13 ## Text 1034 INDIAN LAW REPORTS ALLAHABAD SERIES the Code of Criminal Procedure, 1973) for his appearance, in the event of an appeal being preferred against his acquittal. 46. In so far as appellant Dinesh is concerned, this appeal is dismissed on his behalf. He is found guilty of the offence punishable under Section 304 (Part 2) IPC and his conviction and sentence passed by the Trial Court is upheld. Appellant Dinesh is on bail. His bail bonds and personal bonds are cancelled and the sureties discharged. He is directed to surrender before the learned Trial Court within four weeks from today to undergo the remaining part of his sentence, failing which, the Trial Court is directed to adopt coercive measures for securing his presence. 47. Let a copy of this order be forwarded to the Trial Court concerned along with the Trial Court record for information and necessary compliance. --------- (2026) 4 ILRA 1034 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.04.2026 BEFORE THE HON'BLE AVNISH SAXENA, J. Criminal Appeal No. 348 of 1986 Kanhaiya & Ors. ...Appellants Versus State ...Respondent Issue for consideration Matter pertains to legality of judgment of conviction under Sections 147, 148, 149, 307, 324, 323, 452 IPC. Headnotes Law of punishment-Six named accused-appellants-five have already passed away -appeal is abated against them-Appellant -Chhotoo is sole surviving appellant- conviction recorded- as part of unlawful assembly- having the common object of inflicting injuries-established beyond the shadow of doubt-Conviction confirmed- incident occurred 42 years back-nothing on record to show that the accused was a habitual criminal- sentence awarded to surviving Appellant -reduced to the period already undergone by him- sentence modified. Appeal dismissed. (E-9) Case Law Cited 1. State of Madhya Pradesh Vs. Bablu, (2014) 9 SCC 2811 2. Abdul Waheed Vs. State of Uttar Pradesh, (2016) 1 SCC 583 3. Labh Singh and Others v. State of Haryana, 2012 LawSuit (SC) 255 4. State of U.P. v. Sita Ram and Another, 2010 LawSuit (SC) 897 5. George Pon Paul v. Kanagalet and Others, 2009 LawSuit (SC) 795 6. Manjappa State of Karnataka, 2007 LawSuit (SC) 706 List of Acts The Indian Penal Code, 1860 4 All. Kanhaiya & Ors. Vs. State 1035 List of Keywords Reformative; corporeal in nature; law of punishment; habitual criminal; period of incarceration. Appearances of parties Counsel for Appellant (s) : A.D. Giri, Devendra Yadav, Mahesh Prasad Yadav; Counsel for Respondent(s) : A.G.A. (Delivered by Hon'ble 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 informants 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. 1036 INDIAN LAW REPORTS ALLAHABAD SERIES 5. The five members of the informants 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 21.12.1984. 6. The investigation was carried out by P.W.-4, the Inspector, Amar Shankar Chaubey, who has submitted the charge sheet, invoking the provisions of unlawful assembly and the offences carried in furtherance of common object by the unlawful assembly, in which Chhotoo was stated having being present with lathi in his hand. 7. After framing of charge on 24.05.1985, the trial began. 8. The prosecution has produced three witnesses of fact and the three formal witnesses. P.W.-1 Ram Nath and P.W.-2 Asharfi Devi were produced as injured eye witnesses and informant. P.W.-3 Dubri was produced as an independent eye witness, who came to the place of incident. The three formal witnesses are P.W.-4 Amar Shankar Chaubey, the Investigating Officer, P.W.-5 Dr. C.P. Singh, the doctor, who has carried out medico-legal examination of the injured and prepared the report and Dr. S.D.P. Gupta, the Radiologist, P.W.-6, who has taken X-ray and gave the report. 9. It is argued by the learned counsel for the sole surviving appellant that specific role of each accused has not been reflected from the testimonies of injured witnesses. The role of Chhotoo was of wielding lathi blows, but there is no specific statement that to whom Chhotoo has wielded lathi. The source of light is not proved because neither the lantern nor the torch was produced before the court. There is an admitted fact about the previous enmity of accused-appellants with the informant. The main accused Phool Singh was shown carrying the fire arm. The accused-appellant, who was having lathi in his hands, could only be assigned the role of causing voluntary hurt. Further submits that the sole surviving accused is 64 years of age old and ailing and therefore, the appeal should be decided accordingly. Learned counsel has relied on the cases of Labh Singh and Others v. State of Haryana1, State of U.P. v. Sita Ram and Another2, George Pon Paul v. Kanagalet and Others3, Manjappa State of Karnataka4 and Ramesh v. State of Uttar. 10. Per contra, learned A.G.A. for the State has submitted that the first information report is lodged without delay. The four members of the family of informant were brutally beaten and the informant suffered gunshot injury on the vital part of his body, which is dangerous to life. The role assigned to accused-appellant is having lathi in his hand in furtherance of common object for committing the offence. It is proved in the trial that the accused-appellants had entered into the house of informant to commit offence having weapons in their hands. This shows the common object of the unlawful assembly of six accused persons of the same family. The trial court has rightly appreciated the entire evidences on record and convicted the accused-appellants invoking the provisions of unlawful assembly having a common object. The nature of the injuries on the person of the entire family members of informant including ten years old son of informant and 16 years old daughter of informant clearly shows the brutality. Hence, submitted that the appeal is devoid of merit and liable to be dismissed. Subsequently, submitted that the cases cited by the learned counsel for the appellants are the cases decided by Honble the Supreme Court in Special 4 All. Kanhaiya & Ors. Vs. State 1037 Leave to Appeal, wherein invoking the inherent powers of the Supreme Court under Article 142 of the Constitution of India, which is not available to this Court. 11. This Court has taken into consideration the rival submissions made by the parties and perused the record. 12. Following are the points of determination before this Court:- (i) Whether the learned trial Judge has rightly appreciated the facts, circumstances, documents and evidences on record to reach the conclusion of conviction of six appellants for committing offence in furtherance of common object? (ii) Whether the role of sole surviving accused-appellant has rightly been considered by the trial Judge in convicting him and sentencing him in consonance to the offences committed by him? (iii) Whether the appellate court should show leniency in affirming the sentence if the conviction found to be just and proper outcome of appreciation of evidence, merely because the matters taken up for hearing after 40 years of pendency of appeal? 13. It would be apposite to consider the first two point of determination prior to the third. 14. The incident is stated to be of 20.12.1984 occurred at 11:30 p.m. The place of incident is the residence of prosecution witness-1, namely, Ram Nath. The allegation in the written information Exhibit Ka-7 reveals that informant, his wife, two daughters and a son were sleeping in their house, when there was a knock at the door. The informants wife Asarfi Devi (P.W.-2) has opened the door. Six accused persons armed with different weapons barged into the house, started beating P.W.-2 Asarfi Devi and her children, who were sleeping with her. Hearing the cry of the family members, the informant came out from the room, who was confronted by the accused Phool Chandra. He was having countrymade pistol in his hand, challenged the informant and fired a shot. The informant, who came to rescue his family on being hurt with gunshot injury, ran outside his house for help. It is then, that the villagers including Dubri (P.W.-3) came to the spot. Then the accused-appellants sprinted away. 15. The police station is situated at a distance of 2 km from the place of incident. The informant and injured wife and children were taken to the police station, where the F.I.R. was lodged on 21.12.1984 at 1:30 a.m. on the written information of the informant Ram Nath, scribed by Rajaram. 16. Aman Shankar Chaubey (P.W.-4) has proved the chik F.I.R. as secondary witness, as this witness had worked with Head Constable Ram Dular Rai and identified his hand writing in the F.I.R. and letters (Exhibit Ka-9 to 13) for getting the medico-legal examination of the injured. The injured had been taken to PHC (Public Health Centre), Rani Ki Sarai, Azamgarh, where the medico-legal examination of five injured persons was carried out from 2:10 a.m. to 3:30 a.m. 1038 INDIAN LAW REPORTS ALLAHABAD SERIES 17. In the written information, six persons were named, with specific mention about the weapons, they were carrying. Phool Chandra was with country-made pistol, Kanhaiya with knife, Sobha with ballam, Ramdev, Sudama and Chhotoo with lathi and danda in their hands. 18. P.W.-1 Ram Nath and P.W.-2 Asafri Devi, in their examination-in-chief, had made specific statements with precision about the weapons, the accused were carrying. They have also stated about the motive behind committing the offence, which was a property dispute, arose a month back, though in the cross-examination, the endeavour of accused-appellant was to show that the incident was committed by the dacoits, who were operating in the area, as the informant had sold his land and was having a huge cash in his home, which was the reason for the dacoity and inflicting of injuries on person of family members of P.W.-1. The suggestion of dacoity was denied by P.W.-1 & P.W.-2 with the statement that there were no jewelleries , articles or money looted in the incident. 19. In the cross-examination of P.W.-1 Ram Nath, it is revealed that after suffering the gunshot injures, he became unconscious and regain consciousness in the hospital, but soon thereafter, he has released and stated himself that he regained consciousness at the Police Station and remained at the Police Station for one and half hours. The two injured witnesses, namely, Ram Nath and Asarfi Devi (P.W.1 and P.W.-2) were also questioned about the relationship of independent witness Dubri (P.W.-3) and Sombaru, who are the persons named as witnesses in the F.I.R., being independent witnesses Sombaru, is the son of Ram Charan and Dubri is the son of Ram Saran. Ram Charan and Ram Saran are real brothers. 20. The accused-applicants have tried to distract the witnesses in suggestive questions in their cross-examination to came out with the inference of false implication appellants in the case because of enmity, but the injured witnesses remained intact about the role of accused-appellants in the incident. The chain of incident and events are so inter-twined and pragmatic that there seems to be no chance of false implication or concoction of story to falsely implicate the accused. This evinces from the facts that at 11:30 a.m. on 20.12.1984, the incident took place. The police station is 2 km away from the place of incident. The injured were taken to the police station with the help of villagers, as all the five family members were badly injured. From the police station, the injured were taken to the Primary Health Centre before 2:10 a.m. on 21.12.1984. The trial court has rightly appreciated the evidences on the point of prompt lodging of F.I.R. reflects that the names of accused-appellants was rightly taken to be miscreants in committing the offence, without any chance of false implication. 21. As this Court as well as the trial court did not find any exaggeration in depicting the incidence, hence, the false implication in the F.I.R. is ruled out. The medico-legal examination reports of five injured family members including the informant further substantiates the stand, which are required to be reiterated:- (I) Injury Report of Belawati aged 20 years D/o Ram Nath Pasi dated 21.12.1984 at 02:10 a.m. :- Injuries: 4 All. Kanhaiya & Ors. Vs. State 1039 1. Incised wound 3 cm x 0.5 cm x bone deep on the anterior surface of scalp 6.5 cm above mid of right eyebrow bleeding. 2. Incised wound, 2.5 cm x 0.5 cm x bone deep on the mid of scalp 10.5 cm above upper base of left ear bleeding. 3. Contusion 4.5 cm x 1.5 cm on the posterior surface of left forearm 6 cm below elbow joint with red colour and swelling. 4. Complains of pain in posterior aspect of left shoulder joint with no apparent mark of injuries. Inference: Injuries are simple in nature No 1 and 2 caused by sharp edged object and No 3 by blunt object. Nothing can be said about No 4. Duration: Fresh injuries. (II) Injury Report of Smt Shyamli aged about 16 years D/o Ram Nath Pasi dated 21.12.1984 at 02:30 a.m. :- Injuries: 1. Traumatic swelling 2 cm x 1.5 cm on the posterior aspect of scalp with red colour. 2. Abraded contusion 3.5 cm x 1.5 cm on the posterior aspect of left forearm 8 cm below elbow joint with red colour and swelling with oozing from abraded area. 3. Punctured wound 1 cm x 0.5 cm x 1 cm directing downwards medially on left side of abdomen 3 cm above and medially to left anterior iliac spine, bleeding. Inference: Injuries are simple in nature. No 1, 2 caused by blunt object and No 3 by sharp and pointed object. Duration: Fresh injuries. (III) Injury Report of Sukendar aged about 10 years S/o Ram Nath Pasi dated 21.12.1984 at 02:50 a.m.:- Injuries: 1040 INDIAN LAW REPORTS ALLAHABAD SERIES 1. Incised wound 2 cm x 0.5 cm x bone deep on the left side of scalp 9.5 cm above upper base of left ear bleeding. 2. Lacerated wound 0.5 cm x 0.5 cm x muscle deep on the medial aspect of left ring finger at its tip bleeding. 3. Confusion 3 cm x 2 cm on the left maxillary prominence just below lower eyelid with red colour and swelling. Inference: Injuries are simple in nature. No. 1 caused by sharp edged object and rest by blunt object. Duration: Fresh injuries. (IV) Injury Report of Ram Nath Pasi aged about 55 years (informant) dated 21.12.1984 at 03:00 a.m.:- Injuries: 1. Multiple wounds of entry on the posterior surface of neck including posterior aspect of scalp with palpable pillets inside and a few are apparent. Advised X-ray. 2. Wound of entry 9 cm x 6 cm on the outer aspect Right thigh with irregular edges 24 cm above knee joint with scorching and tattooing of local skin bleeding profusely. Advised X-ray. 3. Multiple wounds of exits and abrasions on the medial aspect of Right thigh of various sizes, bleeding profusely. Inference: Injuries are dangerous life caused by some firearm. No. 1 from distant range and No. 2 from near range. Duration: Fresh injuries. (V) Injury Report of Asharfi Devi aged about 50 years dated 21.12.1984 at 03:30 a.m.:- Injuries: 4 All. Kanhaiya & Ors. Vs. State 1041 1. Punctured wound 1.5 cm 0.5 cm bone deep directing backwards on the left side of the forehead 2.5 cm above outer border of left eyebrow. Bleeding. 2. Punctured wound 1.5 cm 0.5 cm bone deep on the outer end of Right eyebrow bleeding, directing backwards upwards. 3. Punctured wound 2 cm 0.75 cm muscle deep, directing backwards on the front of right upper arm, 4 cm above right axillary fold bleeding profusely. 4. Incised wound 2.5 cm 0.75 cm muscle deep on the posterior aspect of right upper arm 13 cm above elbow joint. Bleeding. 5. Incised wound 1.5 cm 0.25 cm skin deep just of posterior aspect of right elbow joint. 6. Punctured wound 1 cm 0.5 cm 1 cm directing backwards on the right side of abdomen 7.5 cm above & lateral to umbilicus bleeding. 7. Complains of pain in front of chest with no apparent injuries. 8. Abrasions on front of both ankle joints with oozing. Inference: Injuries are simple in nature. No. 1, 2, 3 and 6 caused by some sharp and pointed object. No. 4 and 5 by hsrap edged object and No. 8 by friction. Nothing can be said about No. 7 Duration: Fresh injuries. 22. P.W.-5 Dr. C.P. Singh has examined the above injuries,entered medico-legal report and proved the same in court as P.W.-5. In his cross-examination, he has stated that the injured suffered the injuries by knife and ballam, it could be both or either of the two. The injury on the person of Ram Nath was of fire arm injury, which could be from a distance of 12 feet. There is nothing reflected from the cross-examination of this witness, which created doubt as to the injuries suffered by the injured person. 23. P.W.-6 Dr. S.D.P. Gupta, who is the radiologist, has proved the X-ray report and X-ray plate pertaining to the gunshot injury, suffered by Ram Nath. He has not been cross-examined by the accused-appellants. 24. The injuries on the person of injured shows that Belawati, daughter of informant, suffered injuries by sharp and blunt object; Shyamli suffered injuries by sharp and blunt object; Sukendar Singh s/o informant also suffered injuries from sharp and blunt object; Ram Nath 1042 INDIAN LAW REPORTS ALLAHABAD SERIES suffered fire arm injuries and Asarfi Devi suffered injuries by the weapon of sharp and point object. The cluster of injuries suffered by the injured clearly shows the weapons being used by the accused and rightly stated by P.W.-1 and P.W.-2 in their statements, which cannot be doubted. 25. So far as, the testimony of independent witness, Dubri (PW.-3) is concerned, he has stated in his examination-in-chief that he has seen the incident and identified the accused-appellants in the light of torch, which he has provided to the Investigating Officer and the Investigating Officer has returned the same to him on the same day. He has also stated to have taken the injured to the police station and thereafter to the hospital. In his cross-examination, the accused-appellants had tried to establish that this witness is inimical to the accused and in relation with the injured due to the reason, his testimony is false. He has produced the torch during his examination and even the trial Judge has asked specific question, about the torch, to this witness. This witness further stated that he has not seen Ram Nath being injured due to fire arm injury, because he came thereafter on the cry of Ram Nath. Nothing inconsistent is revealed from the statement of this witness and was rightly considered to be the independent eye witness, who has seen the accused-appellant exiting the house of informant and subsequently taken the injured to the police station and hospital. 26. The prosecution through the testimonies of witnesses have established the guilt of all the accused, who were provided with the role of committing the offence in furtherance of common object, being the family members, having property dispute with the injured. 27. So far as the role of sole surviving appellants Chhotoo is concerned, the witnesses of fact P.W.-1 Ram Nath, P.W.-2 Asarfi Devi and P.W.-3 Dubri have stated that Chhotoo was having lathi and danda along with Ramdev and Sudama. The sons and daughters of Ramnath suffered two injuries each by the blunt object, which is lathi and danda and Chhotoo, who was part of unlawful assembly, his role cannot be ignored even if he has not inflicted any injury. 28. P.W.-1 Ram Nath and P.W.-2 Asarfi Devi as well as P.W.-3 Dubri have specifically stated in their statements about the role of accused Chhotoo having lathi in his hand and becoming a member of the unlawful assembly, who had barged into the house of injured at night with deadly weapon in their hands. Hence, the conviction recorded by the trial court considering the sole surviving appellant is part of unlawful assembly, having the common object of inflicting injuries on the person of injured and eliminate P.W.-1 Ram Nath, who suffered gunshot injury, is established beyond the shadow of doubt. Therefore, conviction is affirmed. 29. So far as, the third point of consideration is concerned, it would be expedient to quote the judgment cited by the accused. 30. In the case of Labh Singh v. State of Haryana (supra), Hon'ble the Supreme Court has taken the view, while considering the sentence awarded in the old case of 1985, wherein, all the accused are senior citizen by then, that no useful purpose would be served in sending the accused to jail. The relevant paragraph numbers 3 to 6 are reiterated underneath: " 3. According to the impugned judgment passed by the High Court, Appellant 1 is more than 82 years of age and Appellants 2 and 3 are 72 and 62 years of age respectively. 4 All. Kanhaiya & Ors. Vs. State 1043 4. This is an incident of 1985. The appellants have already undergone part of the sentence. Sending them to jail after a lapse of about 27 years, in the facts and circumstances of this case, would not be justified. 5. On a consideration of the totality of the facts and circumstances of this case, we are of the opinion that ends of justice would meet if we direct each of the appellants to pay Rs 1 lakh to the complainant/injured persons. We direct accordingly. Let the amount be deposited before the trial court within two weeks from today and after the amount is deposited, the trial court shall disburse the amount equally among the injured persons. 6. Consequently, the sentence of the appellants is reduced to the period already undergone by them, the impugned judgment is modified to the aforementioned extent and the appeal is partly allowed." 31. In the case of State of U.P. v. Siyaram (supra), Honble the Supreme Court has considered the old case and propensity to false implication, took the view to compensate than to further incarceration. The relevant paragraph number 4 is reiterated underneath:- "4. We have heard the learned counsel for the parties and have gone through the record. We are not inclined to interfere in the acquittal of Siyaram for the reasons recorded by the High Court, as the propensity to implicate falsely is not uncommon in India. We, however, do agree with Mr Dash that the reduction in the sentence in case of Jiya Lal to already undergone was somewhat inadequate but as the prosecution had been initiated in the year 1988, we are not inclined to interfere on the term of imprisonment. We, however, direct that the fine be increased to Rs 25,000 in all and in default of payment of fine the appellant Jiya Lal shall undergo 2 years' RI. The fine will be paid within three months from now to Banshi Lal, the injured and if Banshi Lal is not available, to his legal representatives." 32. In the case of George Pon Paul v. Kanagalet (supra), Honble the Supreme Court considered the passage of time, as a relevant factor to consider. The relevant paragraph numbers 4 to 6 are reiterated underneath:- "4. The only question that remains is whether the custodial sentence as was imposed by the trial court was adequate or not i.e. confinement till rising of the court. 5. It appears from record that the fine amount has been deposited and the amount which was directed to be paid to PW 2 has already been paid. 6. Considering this fact and the long passage of time, it would be appropriate to restrict the period of sentence to the period already undergone. The appeals stand disposed of." 33. In the case of Manjappa v. State of Karnataka (supra), Hon'ble the Supreme Court considered the long pendency of case and opined the adequate punishment would be the period of incarceration already undergone but enhanced the fine to be paid as compensation. The relevant paragraph numbers 14 to 16 are reiterated underneath:- 1044 INDIAN LAW REPORTS ALLAHABAD SERIES "14. At the same time, however, the fact remains that the High Court has reduced substantive sentence to a month and a half. It is also not in dispute that the appellant has undergone and has remained in custody for about fifteen days. Moreover, as on today, he is on bail. Hence, even though we are of the view that in the facts and circumstances of the case, provisions of Section 360 read with Section 361 of the Code are not attracted and Om Prakash [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] does not help the appellant, it would not be appropriate now to direct the appellant to surrender and to suffer the remaining sentence for about a month. The incident is of 1997 and about 10 years have passed. 15. Keeping in view all the facts and circumstances, in our opinion, ends of justice would be met, if we order that the substantive sentence which the appellant has already undergone is held sufficient. We are also of the view that it would be appropriate if over and above the amount which the appellant herein has paid towards fine and also towards compensation to the injured victim, the appellant is ordered to pay an additional amount of Rs 10,000 (Rupees ten thousand only), to the complainant by way of compensation. 16. For the foregoing reasons, the appeal is partly allowed by holding that the sentence already undergone by the appellant is held sufficient and adequate in the facts and circumstances of the case. It is, however, ordered that the appellant will pay an additional amount of Rs 10,000 (Rupees ten thousand only) to the injured complainant within a period of one month from today over and above the amount of fine and compensation ordered to be paid by the courts below." 34. In the case of Ramesh v. State of U.P. (supra), Honble the Supreme Court has converted the offence of attempt to murder to the voluntary causing of grievous hurt in view of single injury and awarded punishment accordingly. The relevant paragraph numbers 3 and 4 are reiterated underneath:- "3. The learned counsel for appellant has assailed the finding recorded by the High Court and the trial Judge and has urged that the appellant was implicated due to enmity. He urged that even though the High Court held that in the FIR the main part was specifically assigned to the appellant and one Jagat Singh but in the evidence it was confined to the appellant as the relations between the two were strained. The learned counsel further urged that the case of the prosecution was that the complainant was bitten by Jagat Singh and there being no injury of biting, the High Court committed an error in maintaining the conviction. We are not impressed by the argument. The learned counsel then urged that the High Court committed an error in convicting the appellant under Section 307, Penal Code, 1860. We do not propose to decide it as a matter of law. But we agree with the learned counsel for the appellant that in peculiar circumstances of the case it being a case of single injury in the back of neck the conviction can be altered to be under Section 324, Penal Code, 1860. 4. In the result the appeal succeeds and is allowed in part. The conviction under Section 307/34, IPC is converted to under Section 324, IPC and the sentence is reduced to the period already undergone. The appellant shall deposit a sum of Rs 3000 as fine within six months which shall be paid to the complainant. In default of payment he shall serve out the entire sentence. On deposit of fine the bail bond shall stand discharged." 4 All. Kanhaiya & Ors. Vs. State 1045 35. There is judicial discretion attached to reasoned sentencing. In the cases of State of Madhya Pradesh Vs. Bablu5 and Abdul Waheed Vs. State of Uttar Pradesh6, Hon'ble the Supreme Court observed solemn duty of the Courts while imposing sentence that the same would be just, adequate and proportionate to the gravity of offence. Further observed that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of system. Considering those principles the trial court rightly evaluated the role of the sole surviving appellant and adequately sentenced him on 28.01.1986 with just and adequate punishment. This Court in appeal has granted bail on 30.01.1986 and since then the sole surviving appellant is enlarged on bail. Now the point of concern is whether it would be rightful decision by appellate court to send the accused to serve the remaining sentence after elapse of 40 years. 36. In the case in hand, the accused-appellant was youngest in all the family members, carrying lathi or danda in his hand along with other two co-accused. The incident occurred 42 years back. There is nothing on record to show that the accused was a habitual criminal. Sending the sole surviving appellant to jail will not serve the purpose of basic principles of the law of punishment, which in India is not corporeal in nature but reformative in its form. The intention of legislature in considering the act, conduct and behavior of convict for remission also evinces the same principle. 37. Therefore considering, the dictums of Honble the Supreme Court; the analogy drawn up from the facts of the case; and involvement of the sole surviving appellant, his role in the occurrence vis-a-vis his age at the time of incident and as on date, this Court is of the view that the judicious and purposeful punishment would be to modify the punishment as below:- 37.1. The sentence awarded to Chhotoo son of Badan Pasi r/o Village Chuharapura, Police Station Rani Ki Sarai, Azamgarh is reduced to the period already undergone by him in Case Crime No.204/1984, under Sections 147, 323, 452, 324 read with 147 and 307 read with 147 of Indian Panel Code (S.T. No.82 of 1985, State Vs. Kanhaiya and 5 others, decided on 28.01.1986). 37.2. The sole surviving appellant Chhotoo shall deposit a fine of Rs.75,000/- (Seventy Five Thousand Rupees Only) with the trial court within 60 days from the date of this judgment. 37.3. The trial court shall disburse this amount as compensation to be paid equally to the surviving injured, after registering a miscellaneous case. 37.4. The sole surviving appellant shall assist the trial court during continuance of Miscellaneous Case, which will last till the compensation is paid off either to the surviving injured Ram Nath Pasi, Asarfi Devi, Belawati, Shyamli and Sukendar equally. If no injured survives, the same shall be credited to State Exchequer as fine and the entry in the fine register shall accordingly be modified. 37.5. If the fine is not deposited within stipulated period, the sole surviving appellant shall serve the remaining period of sentence. 38. The appeal is therefore dismissed, but sentence is modified. 1046 INDIAN LAW REPORTS ALLAHABAD SERIES 39. The material exhibit shall accordingly be dealt with as per law. 40. The sole surviving appellant is on bail. His bail bonds and sureties are discharged. 41. A copy of this judgment shall be sent to learned District Judge for effecting compliance. --------- (2026) 4 ILRA 1046 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 29.04.2026 BEFORE THE HON'BLE J.J. MUNIR, J. THE HON'BLE SANJIV KUMAR, J. Criminal Appeal No. 370 of 1985 Ram Swarup @ Chhotey Chela ...Appellant Versus State ...Respondent Issue for Consideration Matter pertains to whether the appellant was one of the miscreants who committed the offence, whether the identification of the appellant in test identification parade and in Court was proper, reliable and trustworthy, and whether the prosecution proved beyond reasonable doubt that the appellant participated in the crime. (Paras 34- 49) Headnotes Criminal Law - Murder - Identification of accused - Indian Evidence Act, 1872 - S. 9 - Test Identification Parade (TIP) and dock identification - Legal principle that TIP is not substantive evidence and can be used only for corroboration of identification in Court - Identification in Court alone constitutes substantive evidence - Application to facts - Witnesses identified accused in jail during TIP but did not state in Court that the appellant was present at the time of incident, did not disclose his role in the crime and merely stated that they had identified him in jail and that he was present in Court - Long delay of about ten months in holding TIP and more than seven months thereafter in recording testimony in Court - Dock identification held not proper, reliable and trustworthy - Prosecution failed to prove participation of appellant in crime beyond reasonable doubt - Conviction set aside and appellant acquitted. (Paras 39, 40, 41, 45, 46, 47, 48, 49, 50) Criminal Law - Evidence - Identification evidence - Evidentiary value of Test Identification Parade - Indian Evidence Act, 1872 - S. 9 - TIP only corroborative and not substantive evidence - Requirement that accused must be properly identified in Court and linked to the role played in the occurrence - Application to facts - Though witnesses correctly identified appellant during TIP and prosecution proved that appellant was kept baparda after arrest, prosecution failed to establish substantive identification in Court - Mere statement that witness identified appellant in jail and that he was present in Court held insufficient - Benefit of doubt extended. (Paras 36, 38, 39, 40, 41, 44, 48, 49) Criminal Law - Burden of proof - Conviction based on identification evidence - Prosecution must establish guilt beyond reasonable doubt - Application to facts - Place of occurrence, prompt FIR