Narendra Kumar Johari, J.

1. This Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellants Bhawani Singh, Raksha Pal Singh, Ram Bahadur Singh and Sukhnandan Singh against the judgment and order dated 26.02.2002, passed by learned Additional Session Judge/1st F.T.C., Gonda in Session Trial No.642 of 1987 (State Vs. Bhawani Singh and others). By the impugned judgment and order, the learned trial court has convicted the appellant Sukhnandan Singh for the offence under Section 307 IPC and appellants Rakshpal Singh, Bhawani Singh and Ram Bahadur Singh for the offence under Section 307/34 IPC and have been sentenced to undergo Seven Years' Rigorous Imprisonment with a fine of Rs.2,000/- each. In case of default of payment of fine, they had to further undergo one month's additional Rigorous Imprisonment.

2. At the very outset, it is worthwhile to mention here that during pendency of the appeal, appellant No.4-Sukhnandan Singh died on 29.03.2007, therefore, the appeal was abated on his behalf vide order dated 24.08.2021.

3. In brief, the case of the prosecution is that on 06.03.1987, the informant gave a written application (Ext. Ka-1) at Police Station Tarabganj, District Gonda to the effect that informant was the resident of Village Liloi Kalan Pure Chauhan and he runs the business of diesel in Ragadganj Bazar. The enmity relating to immovable properties is subsisting between the informant and Sukhnandan Singh and others since long back and the cases are also pending in the courts of law. On the date of incident, his relative Prithviraj Singh, resident of Mujed along with one Lal Mohammad came to his house, who stayed with the informant in night. After having dinner, the informant arranged their bed in the shop of Ram Chander Tiwari. The informant was also sleeping in the shop along with all the persons. At about 4.00 A.M., the informant, having heard the murmuring in the room situated behind the bed room, informant Prithvi Raj Singh and Lal Mohammad awoke. The informant having torch and lathi in his hands, went at the place where he heard the voice and had felt the activities. In order to enquire, he asked them "who are you". Simultaneously, he saw found that Sukhnandan Singh of his village was standing with gun in his hands, Rakshpal, Ram Bahadur Singh and Bhawani Singh were also present there having Kanta, Bhala (spear) and lathi in their hands, from a distance of 30 steps, they intended to come towards informant. Bhawani Singh also lit the torch and recognized him, Rakshpal Singh exhorted to kill informant. Thereafter, Sukhnandan Singh opened fire at him, which hit the left shoulder of the informant. The informant, raising alarm, started running to save his life. Having heard the voice of fire, police party also reached at the place of occurrence and exhorted. All the four accused persons fled away through the field of wheat. Frightened informant could not go to the police station to lodge his F.I.R. in night. After dawn, he reached to the Police Station and gave written application to lodge the F.I.R.

4. On the basis of above contention, an F.I.R. vide Case Crime No.35 of 1987, under Section 307 IPC was registered at Police Station Tarabganj, District Gonda on 06.03.1987 at 7.15 hours, against accused persons Sukhnandan Singh, Rakshapal Singh, Ram Bahadur Singh and Bhawani Singh. On the basis of above F.I.R., the police proceeded to investigate the case. After conclusion of the investigation, police submitted charge sheet against the accused persons.

5. Vide order dated 31.10.1987, learned 1st Additional Muncif Magistrate, Gonda committed the case to the Court of Sessions for trial. The learned trial court framed charges against accused Bhawani Singh, Rakshapal Singh and Ram Bahadur Singh for the offence under Sections 307/34 IPC and against accused Sukhnandan Singh under Section 307 IPC. The accused persons abjured and denied the charges, pleaded not guilty and claimed trial.

6. In support of its case, the prosecution produced PW 1 - Informant Akbal Bahadur Singh, PW 2 - Prithvi Raj Singh, PW 3 - Ramfer Singh, PW 4 - Mumtaj Ali Khan, PW 5 - Dr. R.C. Chaturseni and PW 6 Ram Vilas Dubey as prosecution witnesses, who recorded their evidence in court.

7. After conclusion of the prosecution evidence, the statement of accused persons was recorded under Section 313 Cr.P.C. in which they have denied the prosecution case and stated that they have been falsely implicated in the case with oblique motive. There was enmity of pending civil cases. They are innocent.

8. Learned trial court after considering the prosecution case as well as evidence available on record, convicted the accused Sukhnandan for the charges under Section 307 IPC and to others under Section 307/34 IPC. Consequently, the present criminal appeal challenging the conviction and sentence has been filed by the appellants.

9. Learned counsel for the appellants has submitted that the F.I.R. was lodged belatedly. It was afterthought, and has been lodged with intention to harass the appellants due to previous enmity. The contents of the F.I.R. are absolutely false, fabricated and unbelievable. The evidence on record does not support the prosecution story. The manner in which the incident took place is doubtful. Medical evidence does not support the prosecution story as the injury found on the person of injured are simple in nature. No independent witness of the incident has been produced. Lastly, learned counsel for the appellants stated that the case of the prosecution would not travel beyond the ingredients of Section 324 IPC. The appellants have no criminal history to their credit. They may be given the benefit of the provisions of Probation of Offenders Act.

10. Learned A.G.A. in reply has argued that the judgment and order of learned trial court which is under challenge in present appeal is just and proper. The prosecution witnesses have successfully proved its case. The injury of victim is supported by medical evidence. The appeal has no force and is liable to be dismissed.

11. I have heard the arguments advanced by Shri Shrawan Kumar, learned counsel for the appellants, Shri Pawan Kumar, learned A.G.A. for the State and perused the record carefully.

12. Before the trial court witness PW 1- Akbal Bahadur Singh has stated in his oral evidence that on the date of occurrence, at about 4.00 A.M., he woke up on hearing some murmuring. The voice was coming from the side of inner room of his bed room. He reached at the place and in torch light, he asked, " who are you". He saw that from the distance of 30 steps approximately, the accused persons Sukhnandan Singh, Ram Bahadur Singh, Bhawani Singh and Rakshapal Singh, who were residents of his village, were standing there. Sukhnandan Singh was carrying gun, Rakshapal Singh was carrying Kanta, Ram Bahadur Singh was carrying spear and Bhawani Singh was carrying lathi in their hands. Bhawani Singh in torch light recognized the informant and exhorted Rakshapal Singh to kill him. On their exhortation, accused Sukhnandan Singh opened fire at informant. Consequently, the informant received firearm injury on his left shoulder. Hearing the sound of fire, the police persons also reached at the place of occurrence. Seeing them, the accused persons fled away through the field of wheat. The informant due to fear of life did not move to police station immediately in night to loge his F.I.R., rather after dawn, he lodged the F.I.R. in the police station concerned. The witness had further stated in the evidence that some litigations are pending between him and accused persons since long back, i.e. from the period of their fathers. The witness has further stated that the Investigating Officer had collected empty cartridges from the place of occurrence and also recovered the cracked/broken bricks of his house.

13. As PW 2, witness Prithviraj Singh had stated in his evidence that when he was sleeping with Lal Mohammad, Mumtaj, Rampher and Akbal Bahadur, at approximately 4.00 A.M. somebody knocked the door. Thereafter, the informant Akbal Bahadur Singh came out of the shop with torch and lathi. The witness also accompanied him. Witness PW 2 further stated that he had seen that accused persons were standing there in which Sukhnandan was having gun, Rakshapal was having Kanta, Ram Bahadur Singh was having spear and Bhawani Singh was having lathi in their hands. Sukhnandan Singh fired on Akbal Bahadur Singh, which caused the injury at shoulder of Akbal Bahadur. The other accused persons were also started beating Akbal Bahadur Singh. On shouting the voice for help, as the public rushed towards the place of occurrence, accused persons fled away. The police also reached there and suggested them to lodge report at the police station. Akbal Bahadur lodged the F.I.R. in morning.

14. Witness Ram Pher, who has deposed as PW 3, stated in his evidence that he had no knowledge about any occurrence as 13 years have passed. Learned trial court declared the witness PW 3 as hostile.

15. Witness PW 4 had stated in his evidence that he do not know about the occurrence. He further stated that he did not have any personal knowledge regarding the occurrence. Darogaji had taken his signature on four blank papers.

16. Witness PW 5 Dr. R.C. Chatursani had been examined, who stated that on 06.03.1987 he had medically examined the informant Akbal Bahadur Singh, who was having 03 injuries of pellets measuring 0.5 C.M. X 0.5C.M. X skin deep, on his left shoulder. There was clotting of blood over the injury. No blackening and tatooing was found on the injury. It was appearing that the injured had received the above injuries by firearm.

17. Apart from that, prosecution witness PW 6 was Sub Inspector Ram Vilas Dubey, who had conducted investigation of the case. He is a formal witness.

18. Learned counsel for the appellants has submitted that the story of prosecution is not believable. There were contradictions on the material points, which were fatal for prosecution case. The occurrence has not been supported by any cogent evidence.

19. In reply, learned A.G.A. has submitted that witness PW 1 was the injured witness, who had received the injury in the occurrence. It has been stated by witness PW 1 that on exhortation of Rakshapal Sinbgh, the accused Sukhnandan Singh opened fire on informant. The statement of witness PW 1 is supported by the evidence of witness PW 3, who was eye witness also. The injury of injured witness PW 1 was duly proved by witness PW 5, who had stated in his evidence that the injury on Akbal Bahadur was caused by firearm. The Investigating Officer had recovered the empty cartridges from the place of occurrence. The recovery memo had been proved by PW 6 in his evidence. Although the witnesses PW 3 and PW 4 had not supported the prosecution case, but in absence of any fact and proof otherwise, the evidence of PW 1 inspires confidence, overall he is an injured witness and had received injury during occurrence. Although there are some discrepancies in the statement of witness PW 1 and PW 2 but the statement of witnesses has to be considered as a whole. It is to be kept in mind that the evidence of PW 1 was concluded on 06.09.1999 and evidence of PW 2 got concluded on 03.11.1999 whereas the date of occurrence as has been shown in the F.I.R. was 06.03.1987. Approximately 12 years had passed. The witnesses were belonging to village background. Therefore, there might be some discrepancies in their statements, which are bound to occur but since the aforesaid discrepancies are not touching the core of prosecution version, hence are liable to be ignored.

20. So far as the motive of offence is concerned, it has been mentioned by informant that there was long standing enmity and pending litigation with accused persons. The accused persons in their statement under Section 313 Cr.P.C. also have admitted that the property dispute between the parties were pending in the courts. Therefore, enmity between the informant and accused persons is proved, which may be a cause for attack.

21. Learned A.G.A. has also argued that it has been proved by the evidence of witnesses PW 1, PW 2 and PW 5 that injured Akbal Bahadur had received injury by firearm, which was inflicted with intention to kill him, hence, if the injury has been found on non vital part, even then the accused shall be punished under Section 307 IPC.

22. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 IPC. It would all depend upon the facts of a given case but intention has definitely to be seen.

23. In the instant case, it has been contended that all the accused persons were carrying weapon in their hands in which the accused Rakshapal Singh was carrying Kanta, Ram Bahadur Singh was carrying lathi and Sukhnandan Singh was having gun in their hands. On exhortation of Rakshapal Singh, accused Sukhnandan Singh opened fire upon injured Akbal Bahadur Singh. Enmity may be the motive but it has been found in the medical examination report of the victim that he had received injuries of only pellets, that too were skin deep. The other accused persons had not attacked on injured persons, although they were carrying weapons in their hands. The victim had not received any injury of penetration of any projectile. The accused persons had also not attacked on the other persons named Prithviraj Singh, Lal Mohammad, although they were present on the spot without any weapon in their hands.

24. No any specific act of accused persons Bhawani Singh and Ram Bahadur Singh has been shown. The facts of the case and the evidence on record in my opinion, are not sufficient to prove the intention of accused persons to cause death of informant Akbal Bahadur Singh. Since the essential ingredients of offence defined under Section 307 IPC are not proved, hence, learned trial court mislead itself in convicting the accused persons under Section 307 read with Section 34 IPC. According to the injury report of Akbal Bahadur Singh as well evidence of PW 5, the injured was having only one injury, that too of pellets (03 pellets measuring 0.5 C.M. X 0.5 C.M.) on his left shoulder. The witness PW 5, who is the doctor has also opined that the injury of Akbal Bahadur was simple in nature and was present on non vital part of the body, which was not fatal for his life. In such a scenario, there are sufficient proof on record that to conclude that accused persons have committed the offence under Section 324 IPC. The common intention to attack on informant is also proved by facts and evicence on record as on exhortation of accused-appellant Rakshapal in presence of armed accused persons Bhawani Singh and Ram Bahadur Singh, accused Sukhnandan Singh dared to fire on victim Akbal Bahadur Singh. Hence, the accused-appellants are liable to be convicted under Section 324 read with Section 34 IPC.

25. In the case of Merambhai Punjabhai Khachar and others Vs. State of Gujarat AIR 1996 SC 3236 [LQ/SC/1996/834] , there was an attempt to commit murder by firearm and the pellet hit the victim, however, Hon'ble Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC.

26. In view of above discussion and the law laid down by Hon'ble Apex Court, in present case conviction of the accused persons is altered from Section 307/34 IPC to Section 324/34 IPC.

27. Learned counsel for the appellants has further submitted that for the offence under Section 324 IPC, the maximum punishment has been provided the imprisonment for 03 years. The accused appellants during pendency of the trial were in jail for approximately 01 month. The date of occurrence has been shown as 06.03.1987. Accordingly, approximately 36 years have gone by. Appellants have no criminal history to their credit. There was mandatory provision under Section 361 Cr.P.C. that if the accused appellants are not released on probation, the learned trial court should have recorded its reason. No reason has been given by learned trial court for non considering the benefit of probation to accused/appellants, hence the appellants may be released on probation.

28. The compliance of Section 361 Cr.P.C. has been overlooked by the trial court. Learned trial court ought to have given the benefit of Probation of Offenders Act, 1958 under Section 360 (1) Cr.P.C. but the learned trial court had not considered it. According to Section 361 Cr.P.C., if the trial court has not given the benefit of Probation of Offenders Act, it requires to record the special reason in judgment for not having done so. In the present case, no special reasons have been given by the learned trial court for not providing the benefit of above Act/Section.

29. In the instant case the appellants were convicted and sentenced by learned trial court under Section 307 read with Section 34 IPC, which is altered under Section 324 read with Section 34 IPC. The prosecution has not brought anything on record to show that appellants were previously convicted. Thus, it can be presumed that appellants are the first offender. They remained in jail for one month, during trial. The maximum sentence provided in the Indian Penal Code for the offence under Section 324 IPC is 03 year imprisonment. Thus, taking into consideration the provisions of Section 360 and 361 of Cr.P.C., in my view the appellants are entitled for the benefit provided under the provisions of Probation of Offenders Act, 1958.

30. Their conviction under Section 307 read with Section 34 IPC is set aside. However, their conviction under Section 324 read with Section 34 IPC is confirmed. Instead of immediately sentencing them to undergo imprisonment, they are directed to be released on probation for good conduct. The appellants 1 to 3 are directed to surrender before the trial court within 30 days from today and the trial court is directed to release the appellants on bail on their furnishing personal bonds of Rs.25,000/- with two sureties of the like amount as per provisions of Section 4 of Probation of Offenders Act, 1958. The order of sentence is modified to the above extent.

31. Accordingly, the appeal is partly allowed.

32. Office is directed to send the record along with a copy of this order to the court concerned for compliance.