JUDGMENT : Shambhu Prasad, J. On the 4th of November, 1965, at about 12-30 P.M. in Sabjipatti on main road of Jharia bazaar Bishwanath Singh (P.W.9) received gun shot injuries. Two cases were registered at Jharia police station in relation to the said occurrence, one on the basis of a written report (Ext. 2) of Paras Singh (P.W. 7), a first cousin of P.W. 9 and another on the basis of a Fardbeyan (Ext. A) of Sahastranath Pandey, appellant no. 2 Exhibit 2 was received at the police station at 12-45 P.M. and Ext. A was recorded at the shop of appellant no.2 in Sabjipatti at 1-45 P.M. Exhibit 2 is a short report and it was stated therein that at about 12-30 P.M. on the said date of occurrence while P.M.9 was going home from his shop for taking meal and had proceeded 4 to 5 feet ahead of it, the appellants suddenly came out of shop of appellant no. 2 shouting ‘assault, assault. Appellant no. 1, Deonath, was armed with a gun and others were armed with lathis and bhalas. P.W. 7 and Birendra Singh (P.W. 4), a brother of P.W. 9, were also there near the shop of P.W. 9. Appellant no. 2 and Madan Singh, appellant no. 6, asked appellant no, 1 to kill P.Ws. 4, 7 and 9 with the gun, whereupon appellant no. 1 fired a shot which hit P.W. 9 on his left shoulder blade, cheek and neck. P.W. 9 fell down and the appellants fled away. Ram Ishwar Singh (P.W. 13)), only other person besides P.Ws. 4, 7 and 9, was named as one who also saw the occurrence though it was further added that those who had seen and heard it would be able to tell about it. According to this report, the motive for the said assault by the appellants was previous litigations pending between the appellants and P.Ws. 4, 7 and 9 in the shape of proceedings under Section 107 and 145 of the Code of Criminal Procedure. 2. The allegations made in Ext. A were that at the said date and time while appellant no. 2 was sitting in his shop with others, 30 to 40 persons including P. Ws. 4, 7, 9 and one Chandesar Singh variously armed entered it after having opened one gun fire in front of the shop. 2. The allegations made in Ext. A were that at the said date and time while appellant no. 2 was sitting in his shop with others, 30 to 40 persons including P. Ws. 4, 7, 9 and one Chandesar Singh variously armed entered it after having opened one gun fire in front of the shop. P.W. 9 who was unarmed picked up the cash. Appellant no. 2 and three others who were in the shop attempted to snatch the cash as a result whereof it fell down on the ground and lay scattered. At this time, P.W. 7 who was armed with a gun again fired it resulting in a stampede. Appellant no. 2 and his companions took out lathis and ran up on which the members of the mob fled away higher and thither. P.W. 7 a day before the occurrences had asked appellant no. 2 to withdraw cases pending between them in respect of land and room and threatened that if he would not withdraw them he would have to reap the consequence. I have been informed at the Bar that the case instituted on the basis of Ext. A has ended in acquittal after the JUDGMENT : under appeal. 3. This appeal arises out of the case instituted on the basis of Ext. 2 and the prosecution case is substantially the same as stated therein. The defence of the appellants was as alleged in Ext. A. Appellant no. 1 was charged under Section 307, Indian Penal Code and other appellants under Section 307 read with Section 149 of the Indian Penal Code. They have been convicted of the offences charged. Appellant no. 1, Deonath, has been sentenced to seven years’ rigorous imprisonment for the offence under Section 307 and the rest of the appellants to rigorous imprisonment for five years each for the offence under Section 307/149 of the Indian Penal Code. The trial court has believed the evidence of the prosecution witnesses and has held that an occurrence took place as alleged by the prosecution. 4. In ORDER :to appreciate the contentions of Mr. Nageshwar Prasad learned counsel for the appellants and of Mr. K.P. Verma, learned Standing Counsel for the State, it may be necessary to state the topography of the place of occurrence. The shop of P.W. 9 and that of appellant no. 4. In ORDER :to appreciate the contentions of Mr. Nageshwar Prasad learned counsel for the appellants and of Mr. K.P. Verma, learned Standing Counsel for the State, it may be necessary to state the topography of the place of occurrence. The shop of P.W. 9 and that of appellant no. 2 both face north; the former being to the west of the latter. In between them there is a shop of one Nand Kishore (not examined) who deals in Kercsene oil and salt. To the north of these three shops there is a foot-path and then the road of the main bazar. P.W. 1, Sukhdei, has got her shop on the foot-path below the shop of P.W. 9. B.M. Lal (P.W. 18), who did the earliest investigation in the case, has stated that he found stains of blood at a distance of 4 feet to the north of the shop of P.W. 9 as well as on the pucca built stair of his shop and on the wooden bench kept there. He did not find any stains of blood in the shop of appellant no. 2. 5. Satish Kumar Pandit (P.W. 8), who was attached to the Dhanbad Hospital as Medical Officer at the relevant time, examined P.W.9 on 4.11.1965 itself at 1.55 P.M. and found the following : 1. An extensive lacerated injury on the left shoulder with exposure and damage of left deltoid muscle 6”X5”. It was bleeding profusely. 2. A rubber and 5 pellets were found in the wound. The margin of the wound was lacerated and scorched. 3. There was another small punctured wound on the left side of face. The injuries were also X’rayed and found to be grievous in nature. In doctor’s opinion, the first injury could cause death of P.W 9. The X’ray disclosed an oblique fracture of the upper third of the left humerus a crack grievous in nature. 6. As observed earlier, it has been admitted in Ext. A that there was an occurrence on the date and time as alleged by the prosecution. Mr. Nageshwar Prasad, appearing for the appellants, has also not challenged that P.W. 9 received his injuries in that occurrence. 6. As observed earlier, it has been admitted in Ext. A that there was an occurrence on the date and time as alleged by the prosecution. Mr. Nageshwar Prasad, appearing for the appellants, has also not challenged that P.W. 9 received his injuries in that occurrence. The main question thus which arises for decision in the case is whether P.W. 9 received his injuries in front of his own shop in the manner alleged by the prosecution, or inside or near the shop of appellant no.2 when he and others had raided it as alleged by the defence. In support of his contention that the occurrence could not have taken place in the manner alleged by the prosecution, Mr. Prasad has strongly relied on the evidence of P.W. 8, the doctor, who in his cross examination has stated that the wound was scorched and its margin had been burnt. P.W. 1 in her cross-examination has said that she saw appellant no. 1, who is son of appellant no. 2, firing the shot from their shop. P.W. 4 in his examination-in-chief itself has said that appellant no. 1 fired a shot from the front of his shop from within a distance of 15 cubits. P.W. 7 has stated that appellant no. 1 along with other appellants came out of the shop (of appellant no. 2) shouting ‘assault, assault’ and fired the gun. According to P.W. 13 also, the appellants came out of the shop of appellant no. 2 and appellant no. 1 fired the gun and shot P.W. 9. P.W. 18, who as Investigating Officer must have measured different spots at the place of occurrence, has stated that the place where the gun shot injury was received is at a distance of 24 feet from the shop of appellant no. 2. According to Mr. Prasad, the scorching and burnt margin of the wound as found by P.W. 8 indicate that the shot must have been fired from a close range, 3 to 4 feet, and as according to the evidence of the prosecution witnesses, it was fired from a distance of about 24 feet, it has to be held that they have not given a correct version as to the manner of the occurrence. He has urged that the scorching and burnt margins of the wound indicate that P.W. 9 and others must have gone near the shop of appellant no. He has urged that the scorching and burnt margins of the wound indicate that P.W. 9 and others must have gone near the shop of appellant no. 2 as is the defence case. 7. From the evidence of P.Ws. 1, 4, 7 and 13, discussed above, it does not necessarily follow that the shot was fired from a distance of about 24 feet. They do not, by their statements mean to say that appellant no. 1 fired at P.W. 9 from the very threshold of his shop. What they mean to say is that he fired from a place nearabout his shop. P.W. 9, the victim himself, has said that appellant no. 1 was at a distance of 2 to 3 cubits to the west of his shop when he fired the gun. P.W. 10 has also stated that appellant no. 1 proceeded 2 to 3 cubits of his shop when he fired the gun. It has been elicited in the cross-examination of P.W. 7 that P.W. 9 at the time he received the injury was at a distance of 3 to 4 feet to the east of the stair of his shop. P.W. 13 has also said that P.W. 9 had gone 2 to 3 steps east when he received gun-shot injury. Even if it be assumed that P.W.I8 measured the distance of the shop of appellant no. 2 from the place where P.W. 9 actually received the injury and not from the stair-case of his shop, the distance from which appellant no. 1 fired the gun was about 18 to 30 feet as he had moved some distance towards west of his shop. 8. The evidence of P.W, 8 that he found the wound scorched and its margin burnt in the face of other evidence on the record including some of his own statements does not appear to be reliable. The dimension of injury on the left shoulder as found by him was 6” x 5”. An injury of this dimension is not possible from a distance of 3 to 4 feet as deposed to by P.W. 8, but from a distance of about 12 feet. P.W. 19 is another doctor who performed operation on the injury of P.W.9 and extracted pellets. P.W. 8 is merely his assistant. An injury of this dimension is not possible from a distance of 3 to 4 feet as deposed to by P.W. 8, but from a distance of about 12 feet. P.W. 19 is another doctor who performed operation on the injury of P.W.9 and extracted pellets. P.W. 8 is merely his assistant. P.W. 19 in his evidence has said that he found no scorching on the opening of the wound and the distance from which the gun was fired may be 12 feet or above. In his cross-examination he has stated that the area over which the pellets were spread was a little over 9”. P.W.20, a ballistic expert, incharge of the Government ballistic laboratory at Patna, has deposed that against every inch of spread the firing distance will be 2 feet and if the spread distance is of 9”, then the firing distance will be 18 feet.’ It has been elicited from him in his cross-examination that up to 20 feet most of the pellets travel in masse and that scorching, burning etc. cannot be caused by a distance of more than 4 feet but in that case there will be no spreading. Mr. Prasad, in ORDER :to explain the evidence of P.Ws. 19 and 20, has referred me to the evidence of P.W. 8 that there were exit wounds as well and to that of P.W.20 that the formula of 1”2’ holds good only so far as entrance is concerned. According to Mr. Prasad, the injury 6” X 5” also included exit wounds. But two passages in the evidence of P.W.8 themselves show that his evidence that there were exit wounds is also not reliable. At one place he has said that the intensity of the range was not high and at another that pellets cannot come out of the body if the intensity range is not high. From the evidence of P.W.8 it also appears that the wounds of P.W.9 were X’rayed. The negative of the X’ray plates have been brought on the record and marked Exts. 7 and 7/1. The person who took them has been examined as P.W.17. These negative X’ray plates show that the entrance of the pellets was not in masse and they leave no room for doubt that the shot could cot have been fired from a distance a£'3 to 4 feet as deposed to by P.W.8. 7 and 7/1. The person who took them has been examined as P.W.17. These negative X’ray plates show that the entrance of the pellets was not in masse and they leave no room for doubt that the shot could cot have been fired from a distance a£'3 to 4 feet as deposed to by P.W.8. If the shot was fired from a distance of more than 4 feet there could not have been any burning and scorching. The opinion of P.W.19 that scorching and burning cannot be caused by a fire from a gun from a distance of more than 3 feet is also substantially supported by the following passage in Modi’s well known book ‘Medical Jurisprudence and Texicology (13th edition)’ at page 224 : – “No blackening or scorching is found if the fire arm is discharged from a distance of more than 4 feet”. 9. For the reasons stated in the foregoing paragraphs, the evidence of P.W. 8 that the dimension of the wound was only 6” x 5”, and that it was scorched and had burnt margin and his opinion that the shot must have been fired from a distance of 3 to 4 feet cannot be accepted. The evidence of P.W.19 that the area over which the pellets were spread was a little over 9” which he must have given with reference to the X’ray plates (Exts. 7 and 7/1) and the opinion of P.W.20 that as the spread distance was of 9”, the firing distance would be is feet have to be preferred. This is consistent with the evidence of the prosecution witnesses discussed above and their evidence as to the distance from which the gun was fired cannot be disbelieved on the ground that it is not supported by the medical evidence on the record. Mr. Prasad has placed great reliance on a passage in the evidence of P.W.9 that appellant no. 1 shot at him (P.W.9) from a range of 5 to 6 feet which will be about 4 cubits. In view of the medical evidence and X’ray plates much importance cannot be attached to this passage. The distance stated by P.W.9 appears to be merely by guess. 10. P.W. 18, the police officer, who investigated the case in the beginning and seized the gun of appellant no. 2, in his cross-examination has said that he found the gun stained with blood. Mr. The distance stated by P.W.9 appears to be merely by guess. 10. P.W. 18, the police officer, who investigated the case in the beginning and seized the gun of appellant no. 2, in his cross-examination has said that he found the gun stained with blood. Mr. Prasad has placed strong reliance on this statement and has contended that the presence of blood on the gun also indicate that P.W.9 was fired at from a short distance because blood which was coming in jets from arteries might have fallen on the gun. According to him, presence of blood on the gun cannot be accounted for otherwise and is inconsistent with the prosecution case that the gun was fired from a distance of 18 to 20 feet. I have already discussed the evidence of P.Ws. 8, 19 and 20 and held that the prosecution case that the gun was fired at from a distance of 18 to 20 feet is true. The seizure list prepared by P.W. 18 for the gun has been proved and marked Ext. 4/2. There is nothing in it to show that there was any stain of blood on the gun when it was seized. If P.W. 18 would have found any stain of blood on it, he must have mentioned that in the seizure list. In the circumstances, I am not inclined to rely on this statement of P.W. 18 which appears to have been made either in confusion on account of pressure of cross-examination or deliberately to help the appellants, because P.W.7 had made a petition to the Superintendent of Police against this Officer alleging that he was not fair in the investigation. 11. Mr. Prasad has next argued that according to the evidence of the prosecution witnesses, P.W.9 was facing north when he was shot at by appellant no. 1 from east and in the circumstances, he would have received injuries on the right shoulder and not on left shoulder. According to Mr. Prasad, this also shows that the prosecution witnesses have not given a correct version as to the manner of the occurrence. All the prosecution witnesses who claim to have seen the occurrence have stated that the appellants or at least some of them cried, 'assault, assault' before appellant no. 1 fired at P.W.9. Presence of blood near the shop of P.W. 9 and absence of it in the shop of appellant no. All the prosecution witnesses who claim to have seen the occurrence have stated that the appellants or at least some of them cried, 'assault, assault' before appellant no. 1 fired at P.W.9. Presence of blood near the shop of P.W. 9 and absence of it in the shop of appellant no. 2, as found by P.W.18, show that P.W.9 must have received injuries near his own shop and the shop of appellant no. 2 being towards east, the shot must have been fired from that direction. In the circumstances of the case, it appears that hearing the cry of ‘assault, assault’ P.W. 9 who was going towards north or northeast of his shop must have stopped, looked in that direction by turning round and at that time received injuries on his left shoulder. It seems that they have not deposed as to minute details which might have explained the presence of injuries on the left shoulder of P.W.9 though the shot was fired from a place to the east of his shop which would be towards right of a person facing north. Thus, there appears no substance in this argument of Mr. Prasad and the evidence of the prosecution witnesses cannot be discarded on this score. 12. Mr. Prasad has also contended that all those who have been examined by the prosecution as eye witnesses in the case are interested witnesses and they cannot be relied on because of their interestedness and other criticisms advanced against them individually. The eye witnesses are P.Ws. 1, 4, 5, 7, 9, 10 and 13. P.W. 1 who, as already stated, has her shop on the foot-path below the shop of P.W.9, in her evidence has said that she pays two annas daily to P.W. 7 as charge for that shop. According to Mr. Prasad, because of this she was under the influence of P.W. 7 and thus an interested witness. But she has clarified that the toll of two ann as per day is paid to Raja Saheb of Jharia and P.W.7 merely is a collecting agent being an employee of the Raja. It has not been brought out anywhere either in her evidence or that of other witnesses, that P.W.7 makes any concession to her and, therefore, she is obliged. It has not been brought out anywhere either in her evidence or that of other witnesses, that P.W.7 makes any concession to her and, therefore, she is obliged. Maely because P.W.7 collects daily tolls from her as an employee of Raja of Jharia she cannot be dubbed as an interested witness. It is true that she is not named as a witness in the F.I.R. itself but she was one of the earliest to be examined by the Police in the case and also pointed out the place of occurrence to the Investigating Officer in absence of the family members of P.W.9 who were in the hospital at the time of the inspection. The written report (Ext.2) on the basis of which the F.I.R. was drawn up was received at the police station within 15 minutes of the occurrence and is a very short document. Admittedly, the place of occurrence is situate at a busy place in Jharia bazar and it cannot be said that except the four who were named as eye witnesses in the F.I.R., no other could ha ve seen the occurrence. The evidence of P.W.1 cannot be discarded merely because she is not named in Ext. 2. Some of the other criticisms as against her evidence have already been dealt with while dealing with the contention of Mr. Prasad that the occurrence as alleged by the prosecution is improbable on account of medical evidence, and some of which have got bearing only with the individual cases of the accused shall be dealt with hereafter at appropriate places. 13. In relation to the same occurrence, a case under the Arms Act was also started against appellant Deonath and tried side by side with the case from which the present appeal has arisen by the same Assistant Sessions Judge. In the Arms Act case also P.W. 1 was examined as a witness. A copy of her deposition in that case has been filed in this Court with a petition for taking it as additional evidence. That deposition too was recorded on the 18th of August, 1966, the date on which P.W. 1 was examined in the instant case. There is no material on the record to show whether P.W. 1 was examined first in that case or in this case. That deposition too was recorded on the 18th of August, 1966, the date on which P.W. 1 was examined in the instant case. There is no material on the record to show whether P.W. 1 was examined first in that case or in this case. Unless it is establised that her evidence in the Arms Act case was recorded before her evidence in this case, no part of it can be used to contradict her evidence in this case. Her attention was also not drawn to any statement made by her in the Arms Act case which shows that that evidence was recorded after the recording of her evidence in this case. In the circumstances, I do not think that a copy of her deposition in the Arms Act case can be admitted as additional evidence by recalling her for further cross-examination and drawing her attention to the passages on which learned counsel for the appellants wants to rely. The passage is also not such as to demolish the prosecution case. She stated in that case-“Paras, Bishwanath wo Birendra chhorkar unki gaddi men koi nahin ghusa tha”. According to learned counsel for the appellants, this shows that the aforesaid three persons, that is, P.W.s 7, 9 and 4 had entered the shop of appellant no. 2. The sentence just before the above quoted passage is-“Sahi nahin ki goli khane ke pahle Bishwanath adi Sahastra ki gaddi men ghuse the”. The two sentences read together show that at first it was suggested to the witness that Bishwanath and others had entered the shop of appellant no. 2. When she denied that suggestion it was next put to her, whether any person other than Paras, Bishwanath and Birendra had entered the shop of appellant no. 2 and her reply in the negative has been recorded as “Paras, Bishwanath wo Birendra ko chhorkar unki gaddi men koi nahin ghusa tha”. In the context it is not possible to hold that in the Arms Act case P.W. 1 has admitted that P.Ws. 4, 7 and 9 of this case had entered the shop of appellant no. 2. Thus, really the sentence in her deposition in Arms Act case on which learned counsel for the appellants wants to rely does not contradict any statement made by her in this case. The petition for additional evidence, therefore, cannot be allowed and has to be rejected. 14. 2. Thus, really the sentence in her deposition in Arms Act case on which learned counsel for the appellants wants to rely does not contradict any statement made by her in this case. The petition for additional evidence, therefore, cannot be allowed and has to be rejected. 14. P.Ws. 4, 7 and 9 have substantially supported the prosecution case as stated in Ext. 2. Admittedly, they belong to one and the same family and it cannot be denied that they are interested in the success of the prosecution case. But, their evidence cannot be rejected merely on the ground of interestedness. From the evidence of P.W. 15, Tribhuwan Nath Pandey, who took over - charge of the investigation from P.W. 18, it appears that P.W. 4 was examined by the police for the first “time on the 13th of November, 1965. Learned counsel for the appellants has contended that no reliance should be placed on the statement of this witness because of his late examination by the police. P.W. 4 was named as a witness in Ext. 2 itself and it cannot, therefore, be said that he was thought of later on and brought before the police as a witness thereafter. His late examination by the police perhaps was either due to the fact that as he was named as an accused in the counter-case he may have been absconding and did not produce himself before the police before 13.11.1965 or due to the fact that at early stages of the investigation the police were favouring the appellants. P.W. 7 in his evidence has said that on 8th or 9th he heard that the S.I. of Police was not taking the evidence properly and, therefore, filed a petition to the Superintendent of Police and sent copies of the same under registered cover to others. Of course, a copy of the Said petition has not been brought on the record, but the ORDER :of the Superintendent of Police transferring the investigation of the case from P.W. 18 to P.W. 15 has been proved and marked Ext. 5. It thus appears that there is truth in the evidence of P.W. 7 when he says that he thought that the police were not recording evidence of the witnesses properly and filed a petition to the Superintendent of Police. 5. It thus appears that there is truth in the evidence of P.W. 7 when he says that he thought that the police were not recording evidence of the witnesses properly and filed a petition to the Superintendent of Police. It further appears that the Superintendent of Police was satisfied of the allegations made in the said petition and transferred the investigation of the case from P.W. 18 to another police officer. The occurrence took place on a Thursday and it is admitted by the prosecution witnesses that the shop of P.W. 9 remains closed on that day. All the three P.Ws. 4, 7 and 9, have said that they had gone to the shop for cleaning it. Mr. Prasad has argued that it is not likely that these three members of the family would clean the shop themselves without the aid of a menial and this shows that their evidence that they had gone to the shop for cleaning it is not true and the defence version that they had gone to that locality for attacking the shop of appellant no. 2 is true, There is nothing improbable in the prosecution story that P.Ws. 4, 7 and 9 were themselves cleaning the shop. They are not very substantial is apparent from the fact that one of them P.W. 7 is an ordinary employee of the Jharia Raj and does tollcollecting. The only other criticism advanced by Mr. Prasad of the evidence of P.Ws. 4, 7 and 9 was that the manner of occurrence as deposed to by them is improbable being in conflict with the medical evidence and other circumstances of the case which has already been considered earlier. 15. Raghubansh Singh (P.W. 5) in his evidence has said that while he was returning after taking vegetables from near Bata shop, he saw the occurrence and has fully supported the prosecution case as to the manner of the occurrence. He is a peon of Selected Jharia Colliery, and lives in a Dhaura of the colliery. Ordinarily, therefore, he was not expected to be present at the place of occurrence; rather he was expected to be in the colliery. Being confronted as to how he could leave the colliery on a Thursday, he has made confusing statements. At one place he has said that on Thursdays he remains on 24 hours duty. Ordinarily, therefore, he was not expected to be present at the place of occurrence; rather he was expected to be in the colliery. Being confronted as to how he could leave the colliery on a Thursday, he has made confusing statements. At one place he has said that on Thursdays he remains on 24 hours duty. At another he says that he has got no duty on Thursday and it was an off day. He is not named in Ext. 2 and, for whatever reasons it may be, examined late by the police. In the circumstances, I do not propose to place reliance on his evidence. 16. The evidence of P.W. 10 has not been relied upon by the court below on the ground of contradictions in his statements in court and before the police. Learned counsel for the State has challenged the reasonings of the court below for discarding the evidence of P.W. 10. However, as evidence of other witnesses is there and the contradictions in the statements in court and before the police of P.W. 10 do create some doubt as to his veracity, benefit of which must go to the accused, I do not propose to take a view different from the court below. 17. P.W. 13, Ram Ishwar Singh, is full brother of Chandeshwar Singh, an accused in the counter-case, and it has been contended that because of this relationship, he too is an interested witness. As already stated, Ext. 2 was received at the police station earlier than the recording of the Fardbeyan (Ext. A) in the counter-case and P.W. 13 is named as a witness in Ext. 2. It, therefore, appears that the name of Chandeshwar was purposely included in Ext. A as his brother was named as a witness in Ext. 2. In the circumstances of the case, it cannot possibly be contended that because Chandeshwar was named as an accused in the counter-case, his brother was named as a witness in Ext. 2. The witness was taking his meal in a hotel near the place of occurrence and on hearing the hulla of ‘assault, assault’, he came out and saw the occurrence. 2. The witness was taking his meal in a hotel near the place of occurrence and on hearing the hulla of ‘assault, assault’, he came out and saw the occurrence. The first three sentences of his examination-in-chief as translated by the office of this Court and typed in the Paper Book are as follows : – “On 4.11.65 at 12-30 P.M, I was taking meal in a hotel which is by the side of the foot path, on the north of the shop of Bishunath Singh. He came out of his shop saying ‘assault, assault’. Deonath and others came out of the Gaddi and Deonath fired the gun and shot Bishwanath.” Learned counsel for the appellants has relied on the second sentence of his evidence quoted above and has contended that this shows that it was P.W. 9 who cried, ‘assault, assault’ which fits in with the defence version of the case and not with the prosecution version. The actual word used in Hindi is ‘we’. It is not ‘wah’. The office, therefore appears to be wrong in translating that word as ‘he’. It should have translated it as 'they'. In the context, there can be no doubt that 'we' does not refer to Bishwanath who has been mentioned earlier in singular, but it refers to Deonath and others, the appellants, who are mentioned later on in plural and there appears no substance in the aforesaid contention. This witness too has fully supported the prosecution case that appellant no. 1 shot at and injured P.W. 9 when he was near his own shop. Learned counsel for the appellants was not able to make any other criticism of any substance against the evidence of this witness. In my opinion, P.Ws. 1, 4, 7, 9, and 13 do prove by their evidence beyond any reasonable doubt that the occurrence took place in the manner alleged by the prosecution and P.W. 9 received his injuries at the footpath just in front of his shop. 18. I now propose to consider the individual cases of the appellants. From what has been discussed above, it is manifest that appellant no. 1 shot at P.W. 9 with a gun. There can also be no doubt that he aimed the shot above the waist on the vital part of the body. 18. I now propose to consider the individual cases of the appellants. From what has been discussed above, it is manifest that appellant no. 1 shot at P.W. 9 with a gun. There can also be no doubt that he aimed the shot above the waist on the vital part of the body. P.W. 9 was fortunate that the pellets did not hit his head or neck but injury was caused to his shoulder blade and cheek. In the circumstances, there can be no doubt that this appellant attempted to commit murder of P.W. 9 and is guilty of that offence. 19. P.W. 1 in her evidence has said that she saw all the six appellants coming out of the shop of appellant no, 2; appellant no. 1 being armed with a gun appellant nos. 2 and 6 with bhalas and the rest with lathis and that it was at the incitements given by appellant nos. 2 and 6 that appellant no. 1 fired at P.W. 9. However, before P.W. 18, who took her statements in presence of the D.S.P., she did not name appellants other than no. 1, nor she stated that she had seen anyone armed with lathi and bhala. She also did not state that she had heard the sound of ‘assault, assault’. Thus, her evidence in court as to the parts played by appellants other than no. 1 is contradicted by her statement before the police. P.W. 4 in his evidence too has made statement similar to that of P.W. 1 about the parts played by the appellants in the occurrence. But before the police he too did not make any statement in respect of lathi and bhalas and thus his evidence too with regard to the weapons in the hands of the appellants, other than no, 1, is contradicted by his statement before the police. As to the parts played by the appellants in the occurrence, the evidence of P.W. 7 is also similar to that of P.Ws. 1 and 4 with this difference that according to him, at first all the appellants cried 'assault, assault' and then appellant nos. 2 and 6 ORDER :ed ‘kill him’. Before the police he too did not state, of the appellants, who was armed with lathis and who with bhalas. In the written report (Ext. 1 and 4 with this difference that according to him, at first all the appellants cried 'assault, assault' and then appellant nos. 2 and 6 ORDER :ed ‘kill him’. Before the police he too did not state, of the appellants, who was armed with lathis and who with bhalas. In the written report (Ext. 2) also though he stated that appellant Deonath was armed with a gun and others were armed with lathis and bhalas, he did not state specifically who was armed with which weapon. The evidence of P.W. 9 also is similar to that of P.W. 7 except that he has not specifically named appellants 2 and 6 as those who incited appellant no. 1 to fire at him. Before the police he also did not state anything about bhala, barcha and lathis. P.W. 13 has also made statements similar to that of P.W. 9 as to the parts played by the appellants in the occurrence. In his statement to P.W. 15, which he made on 12.11.1965, he did not state that appellants 2 and 6 were armed with bhalas. In this state of evidence, it is not possible to state with certainty which of the appellants, except no. 1, was armed with which weapon, specially when Ext. 2 too is vague on the point and merely states that the appellants, other than no. 1, were armed with lathis and bhalas without specifying the weapons in the hands of each one of them. 20. On the materials on the record it also does not appear possible to hold that all the appellants, other than no. 1, must have been armed either with lathis or bhalas, nor it is possible to hold that all of them cried ‘assault, assault’. It may be that only some of them were armed. Therefore, by their mere presence there, appellants, other than no. 1, cannot be made constructively liable for the act of appellant no. 1. Some of them may have come out of the shop merely to see why appellant no. 1 was rushing forward with his gun or to pacify him. In my opinion, the prosecution has failed to establish beyond reasonable doubts that appellant nos. 3, 4 and 5, viz., Bishwanath Pandey, Ramnath Pandey and Rajendra Ojha, were members of an unlawful assembly and shared its unlawful object with other appellants. 1 was rushing forward with his gun or to pacify him. In my opinion, the prosecution has failed to establish beyond reasonable doubts that appellant nos. 3, 4 and 5, viz., Bishwanath Pandey, Ramnath Pandey and Rajendra Ojha, were members of an unlawful assembly and shared its unlawful object with other appellants. These three appellants have also raised specific plea of alibi and examined three defence witnesses. D.W. 1 is a doctor and D.W. 2 is appellant no. 5. They have stated that appellant no. 5 was ill on the date of occurrence and was under the treatment of D.W. 1. D.W. 3 is appellant no. 4 himself. He has deposed in support of his alibi and that of appellant no. 3. Since on the prosecution evidence itself the charge against them is not established beyond reasonable doubts, it is not necessary to examine the evidence of these defence witnesses which has been rejected by the trial court and consider the contention of learned counsel for the State that their evidence is not reliable. 21. So far appellant nos. 2 and 6 are concerned, there is definite evidence of P.Ws. 4 and 7 that on their ORDER :s appellant no. 1 shot at P.W. 9. The evidence of P.W. 7 on this point is also corroborated by the statement in Ext. 2. In the circumstances, I feel no hesitation in accepting their evidence that appellant no. 1 fired at P.W. 9 on the ORDER :s of appellant nos. 2 and 6. However, since it has been found that the prosecution has failed to bring home the charge against appellants 3, 4 and 5, appellants 2 and 6 also cannot be convicted for an offence under Section 307/149, Indian Penal Code, inasmuch as, there was no unlawful assembly. In my opinion, they are guilty of an offence of abetment under Section 307/109, Indian Penal Code. 22. The question whether the appellants 2 and 6 could be convicted for an offence under Section 307 read with Section 109, Indian Penal Code, when the charge u//s 307/149 Indian Penal Code was also discussed at the bar at the time of hearing of the appeal and according to Mr. Prasad, learned counsel for the appellants, it could not be done. Prasad, learned counsel for the appellants, it could not be done. When there is a charge for substantive or constructive offence, the trial court can convict the accused for its abetment even without a charge for that or even a court of appeal or revision can alter a conviction for substantive or constructive offence into one for abetment if no prejudice is caused to the accused in his defence. It was so held in the case of (1) E.G. Barsay V. the State (A.I.R. 1958 Bombay 354), In that case the original charge was under Section 5(1) (c) and (d) of the Prevention of Corruption Act read with Section 34 of the Indian Penal Code and the accused were convicted for that offence. In the opinion of the learned judges it was not illegal to alter the said charge against some of the accused to one of abetment of the offence of criminal misconduct as they were satisfied that no prejudice was likely to be caused to any of the accused by that. Similar is the decision of a learned Single Judge of this Court in (2) Hira Sah and another V. Emperor (A.I.R. 1947 Patna 350). In (3) Bhagat Ram V. State of Punjab (A.I.R. 1954 Supreme Court 621) it was observed – “In an appropriate case the conviction may probably have been altered to one of abetment of an offence under Section 409 of the Indian Penal Code. But in this case an alteration of the appellant’s conviction under Section 409 of the Indian Penal Code into one of abetment thereof would imply a definite finding of guilt against the Subordinate Judge, Shri Ghambir, who is not before us. It would, therefore, be unfair to make such an alteration”. This also supports the view that a conviction for a substantive offence can be altered to a conviction for its abetment. In (4) W. Slaney V. State of Madhya Pradesh (A.I.R. 1956 Supreme Court 116) it was held that like all procedural laws the Code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them by mere technicality and that errors in the charge or even the total absence of a charge was mere curable irregularity unless the accused was prejudiced thereby. In the instant case also witnesses have specifically stated that appellants 2 and 6 gave the ORDER :on which appellant no. In the instant case also witnesses have specifically stated that appellants 2 and 6 gave the ORDER :on which appellant no. 1 fired at P.W.9. They have been also cross-examined on this point. In my opinion, therefore, these two appellants cannot be said to have been prejudiced by non-framing of a specific charge of abetment. 23. For the foregoing reasons, I find that appellant no. 1, Deonath Pandey, has rightly been convicted for an offence under Section 307, Indian Penal Code. The sentence of seven years rigorous imprisonment passed against him, in the circumstances of the case, also does not appear to be severe. I further find appellant no. 2, Sahastranath Pandey and appellant no. 6, Madan Singh, guilty of abetment of the offence under Section 307, Indian Penal Code, and alter their conviction for an offence under Section 307/149, Indian Penal Code to an offence u/s 307/109 Indian Penal Code. I would, however, reduce their sentence from rigorous imprisonment for five years each to rigorous imprisonment for three years each. Subject to the aforesaid modification on the question of sentence in case of appellant nos. 2 and 6, the appeal of appellant nos. 1, 2 and 6 is dismissed. The appeal of appellant nos, 3, 4 and 5 (Bishwanath Pandey, Ramnath Pandey and Rajendra Ojha respectively) is allowed and their conviction and sentence imposed upon them are set aside. Appeal allowed in part.