Ajit Singh, J. - This criminal appeal has been filed against the judgement and order dated 6.1.2018 passed by Addl. Sessions Judge, Court no. 9, Moradabad in S.T. No. 245 of 2017 ( State v. Nadeem and others ), arising out of case crime no. 595 of 2016, under Sections 323, 504 and 307 I.P.C., P.S. Hayat Nagar, district-Sambhal, whereby learned trial Judge convicted and sentenced the appellant to seven years rigorous imprisonment with fine of Rs. 10,000/- and in default of payment of fine further additional imprisonment for six months, one year rigorous imprisonment under Section 504 I.P.C.

2. Both the sentences shall run concurrently.

3. The brief facts leading to this appeal are that son the complainant Fakre Alam, was sitting in the house. On 3.12.2016 at about 9:00 a.m. Nadeem and Kasim, sons of Khalil and Khalil, son of Allah Bux, resident of Village-Hasanpur Munjabta, police station-Hayatnagar armed with lathi-danda and firearm, entered into the house of complainant and after hurling abuses they caught hold the son of the complainant and started beating him with kicks and fist with the intention to kill. When the son of the complainant tried to escape to save himself, then all the accused persons after chasing caught him and on the exhortation of Khalil, with the intention to kill Fakre Alam, Nadeem fired at him, which hit on his chest as a result of which he collapsed on the ground. He sustained injuries. Upon hearing the sound of gunshot, Abbas, son of Shabbir, Mohd. Umar, son of Jameel Ahmad and several others reached at the spot and on their alarm, accused persons ran away from the spot.

4. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Moradabad framed the charge against the appellants under Sections 323, 504 and 307 IPC to which the appellants pleaded not guilty and claimed to be tried.

5. To bring home guilt of the appellants, the prosecution examined as many as eight witnesses. PW-1 Jarif, complainant, PW-2 Fakre Alam, injured, PW-3 Irshad, PW-4, Investigating Officer, Anoop Singh, PW-5 Dr. Pawan Kumar Singh, PW-6 Constable, Vinod Kumar, PW-7 Nirmal Ojha and PW-8 H.C.P., Dharam Singh.

6. After the closure of prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C., in which they denied the charges leveled against them and stated that they have been falsely implicated in this case due to enmity.

7. Learned counsel for the appellants has submitted that the role of firing at the injured Fakre Alam has been assigned to accused-appellant Nadeem, whereas the role of catching hold and assaulting the injured with lathi-danda has been attributed to co-accused Kasim and Khalil, which is not probable. He further submitted that the prosecution theory that two accused had caught hold of the injured while accused Nadeem had fired at him with his fire arm does not appear to be probable as the aforesaid act would have also endangered the life of the applicant-appellant.

8. He next submits that as per opinion of the Dr. Pawan Kumar Singh (PW-5) the injured was fired from a distance and no tattooing or blackening was present on the person of the injured around the wound. In this scenario the theory of catching hold is not probable and is totally based upon false allegations.

9. Learned counsel for the prosecution in his argument has submitted that PW-1 Jarif, informant and PW-2 Fakre Alam, injured has fully supported the prosecution case in their evidence and the statements of prosecution witnesses find corroboration from medical evidence. He has further submitted that the injured and the accused are close relative and there is no probability that accused shall be falsely implicated in place of real accused. The incident took place in broad day light, evidence is totally probable, trustworthy and reliable.

10. At the very outset, learned counsel for the appellants has submitted that he does not want to press the bail application and he would like to argue the appeal on the quantum of sentence only and has submitted that the accused-appellant has been convicted maximum for the period of seven years rigorous imprisonment and from the last five years, he has been in jail, all the accused are family members and they are father and sons and their family is at the verge of starvation, as they were the only earning members of the family, which is sufficient in the facts and circumstances of the case, therefore, he has requested that either the accused-appellant should be released on undergone or substantial reduction in sentence may be made. He has further submitted that the whole case is based on enmity and the firearm injury has been caused on non vital part of the injured person.

11. Sri Manu Raj Singh, Sri Jai Prakash Tripathi, learned A.G.A. and Sri Meraj Ahmad Khan, learned counsel for the opposite party have submitted that the offence against the accused-appellant was fully established on the basis of evidence produced before the court below but if the sentence awarded to him is reduced slightly they would have no objection.

12. In Mohd. Giasuddin v. State of AP, AIR 1977 SC 1926 [LQ/SC/1977/210] , explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-

Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an in terrorem outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.

13. In Sham Sunder v. Puran, (1990) 4 SCC 731 [LQ/SC/1990/574] , where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:

The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence.

14. In State of MP v. Najab Khan, (2013) 9 SCC 509 [LQ/SC/2013/647] , the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel v. State of UP (2010) 12 SCC 532 , [LQ/SC/2009/1990] Guru Basavraj v. State of Karnatak, (2012) 8 SCC 734 [LQ/SC/2012/708] , the court observed as follows:-

In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment.

15. Earlier, Proper Sentence was explained in Deo Narain Mandal v. State of UP (2004) 7 SCC 257 [LQ/SC/2004/929] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

16. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 [LQ/SC/2013/587] , 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. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 , [LQ/SC/2014/526] State of Punjab v. Bawa Singh, (2015) 3 SCC 441 , [LQ/SC/2015/78] and Raj Bala v. State of Haryana, (2016) 1 SCC 463 [LQ/SC/2015/1035] .

17. In Kokaiyabai Yadav v. State of Chhattisgarh (2017) 13 SCC 449 [LQ/SC/2017/53] , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

18. In Ravada Sasikala v. State of A.P. AIR 2017 SC 1166 [LQ/SC/2017/305] , the Supreme Court referred the judgments in Jameel v. State of UP (2010) 12 SCC 532 , [LQ/SC/2009/1990] Guru Basavraj v. State of Karnatak, (2012) 8 SCC 734 , [LQ/SC/2012/708] Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 , [LQ/SC/2014/526] State of Punjab v. Bawa Singh, (2015) 3 SCC 441 , [LQ/SC/2015/78] and Raj Bala v. State of Haryana, (2016) 1 SCC 463 [LQ/SC/2015/1035] 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. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.

19. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

20. In view of the above, it is clear that in our country the reformative and corrective approach has been adopted in criminal justice administration. There is nothing on record to show that the accused-appellant is incapable of being reformated. The accused-appellant has been in jail continuously for about five years. Every convict is entitled for the advantage of reformative and corrective jurisprudence.

21. Looking into the facts and circumstances of the case, looking to the evidence of prosecution witnesses of fact and other connecting evidence, medical evidence and looking into the argument of learned counsel for the appellants that he does not want to press the appeal on merits, this Court considers it appropriate to upheld the conviction and looking to the longer incarceration in jail. All the accused are the members of the same family and who are in jail since more than five years and their families are at the verge of starvation. Their sentences are modified to five years rigorous imprisonment to meet out the ends of justice, so far as the sentence of fine is concerned, the same is not disturbed.

22. In view of the above, the conviction is upheld and the sentence awarded under Section 307 I.P.C. which is for seven years rigorous imprisonment is reduced by two years to mean five years rigorous imprisonment and the default sentence in lieu of fine is reduced to three months against the awarded default sentence of six months.

23. With the above modification, the appeal is accordingly disposed of finally.

24. Office is directed to send the certified copy of this judgment along with lower court record to the court concerned for information and necessary action.