JUDGMENT P.N. Goel 1. APPELLANT Chandra Ram has been convicted and sentenced u/Sec. 307 IPO to undergo RI for 6 years, Dev Ram his son Sohan Ram and Sohan Ram s/o Tika Ram, hereinafter called Sohan Ram II, have been convicted under section 307/34 IPC. Dev Ram has been sentenced to undergo RI for 6 months, whereas his son Sohan Ram and Sohan Ram II have been sentenced to undergo RI for one year. 2. THE case of the prosecution against the appellants was; On 5-10-1975 Dungar Ram (PW 4), s/o Moti Ram (PW 5) wanted to irrigate his field in his village Pataliya Kotabagh at about 6 A. M., that when he reached his field and wanted to irrigate, Dev Ram and his son Sohan Ram came up and began to irrigate their fields, that despite protest they did not desist, that exchange of words took place, that in the meantime Chandra Ram and Sohan Ram II appellants came up and began to give filthy abuses to Dungar Ram, that in the meantime Moti Ram, Narain Ram, Kirti Ram and Gusain Singh reached there, that Chandra Ram appellant took out a pistol from the pocket of 'his pant and fired towards Dungar Ram, who was injured thereby, that Moti Ram reached to intervene, that Chandra Ram fired at him also. Dungar Ram and Narain Ram went to police station Ram Nagar, 14 miles away. On reaching the police station Dungar Ram lodged a written report at 5'30 P. M. Dungar Ram was sent to Ram Nagar dispensary for the examination of his injury. Dr. R. K. Gupta (PW 6) examined him at 7 P. M. and found following injury : Lacerated wound 5 cm. x 5 cm. x 5 cm. on the lateral aspect of left forearm with an abrasion 1 cm. x 1 cm. around it. Blackening and tattooing not present. 3. IN the opinion of Dr. Gupta, the injury was caused by some fire arm. 4. MOTI Ram was taken to Kotabagh dispensary by his another son and a nephew. He was admitted in the hospital Kotabagh. In the morning of 6-10-1975 at about 5.30 A. M. Chandra Ram appellant is said to have fired 3 shots towards him. One of the shots injured him. Balag Singh, Station Officer, Police Station Ram Nagar (PW 7) happened to reach the hospital. He heard sound of 3 shots. He was admitted in the hospital Kotabagh. In the morning of 6-10-1975 at about 5.30 A. M. Chandra Ram appellant is said to have fired 3 shots towards him. One of the shots injured him. Balag Singh, Station Officer, Police Station Ram Nagar (PW 7) happened to reach the hospital. He heard sound of 3 shots. Then he immediately rushed and found Chandra Ram at the door of the general ward in which MOTI Ram was the only patient. He immediately caught hold of Chandra Ram and snatched pistol from the hand of Chandra Ram, He opened the pistol and found 5 fired cartridges and a live cartridge. Then he took personal search of Chandra Ram and recovered 2 fired cartridges from the right side pocket of his pant. On 6-10-1975 at 2 P. M. Dr. K. D. Singh (PW 1) Medical Officer Kotabagh dispensary recorded injury report of Moti Ram (Ex. Ka 1). In this report he noted the following injuries on his person : In the opinion of Dr. K.D. Singh the above injuries were simple and fresh. 5. CHANDRA Ram was tried in respect of both the offences mentioned above. The other three appellants were tried for the occurrence which took place in the morning of the first day i.e. 5-10-1975. 6. ALL the appellants denied the allegations of the prosecution. Chandra Ram asserted that he was arrested from his house, that he was implicated on account of enmity and that in the: year 1972 Moti Ram had got his father murdered. For being in possession of fire-arm without licence, he was also prosecuted under section 25 Arms Act. He was sentenced to undergo RI for 2 years. On the date of his statement (i. e. 6-8-1S77) before the court of Sessions he admitted that he was undergoing sentence for the offence punishable under section 25 Arms Act. 7. THE prosecution examined Dungar Ram and Moti Ram, both injured, (PWs 4 and 5) to prove the first day's occurrence. 8. THE prosecution examined Dr. K. D. Singh, Prem Prakash, Baga Ram, Moti Ram and Belag Singh (PWs 1 to 3, 5 and 7) to prove the occurrence of the next day and the arrest of Chandra Ram in Kotabagh dispensary. The appellants did not examine any witness. 9. 8. THE prosecution examined Dr. K. D. Singh, Prem Prakash, Baga Ram, Moti Ram and Belag Singh (PWs 1 to 3, 5 and 7) to prove the occurrence of the next day and the arrest of Chandra Ram in Kotabagh dispensary. The appellants did not examine any witness. 9. ON an appraisal of the evidence of the prosecution witnesses, the learned IV Additional Sessions Judge found the case of the prosecution proved and as such convicted the appellants. 10. SRI M. P. Tandon, learned counsel for the appellants and the learned State counsel have been heard and record examined. The learned counsel for the appellants has urged that Dev Ram, Sohan Ram and Sohan Ram II could not be tried in the present case along with Chandra Ram and that they could not be convicted under section 307 IPC with the aid of section 34. 11. WITH regard to his first contention it is evident that the occurrence which took place in the morning of 6-10-1975 in Kotabagh dispensary cannot be said to have taken place in the same transaction in which the occurrence took place in the morning of 5-10-1975 in village Pataliya Kotabagh. Section 218 of the CrPC 1973 provides that for every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be tried separately. Section 219 gives an exception to this rule. It lays down that when a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. 12. SUB-section (2) of this section [indicates which offence are of the same kind. It provides that when the offences are punishable with the same amount of punishment under the same section of the IPC or of any special or local law, they are of the same kind. Taking into consideration sections 218 and 219 together Chandra Ram could be tried in one case in respect of the two occurrences, one happening on 5-10-1975 and the other on the next day i.e. 6-10-1975. 13. SECTION 223 of the CrPC lays down which persons can be charged and tried together. Taking into consideration sections 218 and 219 together Chandra Ram could be tried in one case in respect of the two occurrences, one happening on 5-10-1975 and the other on the next day i.e. 6-10-1975. 13. SECTION 223 of the CrPC lays down which persons can be charged and tried together. Clauses (a) to (g) of this section enumerate such persons. The present case does not fall in any of these clauses. The CrPC 1973 has added a proviso at the end of this section. Such a proviso did not exist in corresponding section 239 of the old CrPC. 14. THE proviso lays down that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. In the present case, the record does not indicate that Dev Ram and 2 Sohan Rams had given an application that they be also tried in the case along with Chandra Ram. There is also no order by the trial Judge in accordance with this proviso. Therefore, this proviso is not applicable to the present case. The learned counsel for the State pointed out that in view of the provisions of section 464 CrPC the trial or the order passed by the trial judge could not be set aside by this court of appeal on the ground of joint trial of all the 4 appellants unless it was shown that the appellants were prejudiced and there had taken place a failure of justice. 15. IT will be noticed that the joint trial in the present case is not an irregularity which vitiates the proceedings. Irregularities which vitiate proceedings fall under section 461. 16. THEN section 464 (1) lays down that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This section does not permit a court of appeal to interfere with the order or sentence passed by a court of competent jurisdiction simply on the ground that there was an irregularity in the charge including any misjoinder of charges. In this connection reference may also be made to section 465 which lays down that subject to the provisions here in before contained no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order or judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court a failure of justice has in fact been occasioned thereby. 17. THE principle underlying sections 464 and 465 is that a court of appeal should not interfere with an order passed by a court of competent jurisdiction unless a failure of justice has been occasioned. 18. IN the present case Dev Ram and 2 Sohan Rams could be tried along with Chandra Ram in respect of occurrences which took place IN the morning of 5-10-1975. IN view of the provisions of section 223 (a) CrPC, the bare question is whether inclusion of the occurrence of 6-10-1975 in the charge against Chandra Ram makes the trial of Dev Ram and 2 others wholly illegal and whether on this ground alone the order of the learned trial Judge be set aside. IN my opinion the answer is in the negative because firstly Dev Ram and 2 others could legally be tried along with Chandra Ram in respect of the occurrence of the first day and secondly the trial Judge was competent to try the case against all the appellants. In the case of Banwari v. State of U. P., AIR 1962 SC 1198 there were three distinct offences. The police submitted three separate chargesheets which gave rise to three separate Sessions Trials. The Sessions Judge recorded evidence of all the three cases in one case. It was observed, "The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the CrPC. The Sessions Judge recorded evidence of all the three cases in one case. It was observed, "The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the CrPC. Every separate trial must proceed separately, with the result that every proceedings!, including the recording of evidence, in each trial should be separate. The question, however, is whether this wrong procedure adopted by the learned Sessions Judge, has vitiated the trial, irrespective of the fact whether prejudice has been caused to the accused or not." 19. IT was then observed, ''In the present case, however, the learned Sessions Judge did not purport to consolidate the committal orders and try the accused jointly at one trial though really that is what actually happened when he recorded evidence in one case only and presumably he examined the accused also once. He heard the arguments once and he actually delivered one common judgment in all the three Sessions Trials. There, therefore, does not really arise in the present case the question that the Sessions Judge wrongly amalgamated or consolidated the 3 Sessions Trials. In the circumstances of this case, the trial is not vitiated by any procedural error nor has any prejudice been shown to have caused in the conduct of the trial or its result.'' 20. FACTS of the above case are undoubtedly different from the facts in the case before us but the underlying principle is that a procedural error by itself is not sufficient to vitiate the trial. In the present case, if the trial Judge had framed a distinct charge against Chandra Ram in respect of the, second day's occurrence and had separated the trial of that day's occurrence and had recorded evidence of both the cases in one case and delivered one judgment of both the cases, the order could not be said to have been vitiated in view of the principle laid down in the case cited above. If this is the position, there appears no reason as to why the present trial should be considered as vitiated. 21. APPELLANTS Dev Ram and 2 others can claim advantage of this irregularity or illegality if they are able to show that they were prejudiced at the trial and a failure of justice had taken place. If this is the position, there appears no reason as to why the present trial should be considered as vitiated. 21. APPELLANTS Dev Ram and 2 others can claim advantage of this irregularity or illegality if they are able to show that they were prejudiced at the trial and a failure of justice had taken place. Sri M. P. Tandon simply urged that because of framing a charge against Chandra Ram in respect of the second day's occurrence, these 3 appellants could not conduct/defend themselves properly. The record shows that the learned trial Judge framed one charge against Chandra Ram and framed a separate charge against Dev Ram and 2 others. Therefore, Dev Ram and 2 other could easily focus attention to the charge which was levelled against them. Statements of the witnesses do not indicate that these 3 appellants could not cross-examine the witnesses properly because of the alleged illegality in the trial. Therefore, in the present case, it cannot be held that these 3 appellants were in any way prejudiced or that there had occasioned a failure of justice in their case. In the result the first contention of the appellants' counsel does not give any benefit to the appellants. 22. THE next contention of Sri M. P. Tandon was that Dev Ram and 2 others could not be convicted under section 307 with the aid of section 34. THE learned Additional Sessions Judge has, on the basis of the statements of Dungar Ram and Mod Ram, held that Dev Ram and 2 others had exhorted and then Chandra Ram fired his pistol towards Dangar Ram first and then towards Moti Ram. It means that section 34 has been applied because these 3 appellants had exhorted. It is obvious in the present case that initially Dev Ram and his son Sohan Ram were present at the scene of occurrence. Chandra Ram and Sohan Ram II came later on. First information report was given in writing at the police station about 12 hours after the occurrence. In this report there is absolutely no mention that Dev Ram and 2 others had exhorted and that on their exhortation Chandra Ram resorted to firing. Chandra Ram and Sohan Ram II came later on. First information report was given in writing at the police station about 12 hours after the occurrence. In this report there is absolutely no mention that Dev Ram and 2 others had exhorted and that on their exhortation Chandra Ram resorted to firing. Dungar Ram has attempted to explain this omission by saying that he had covered 14 miles distance in reaching the police station, that he was feeling pain in his injury and that he was not in his senses. It is true that he had travelled 14 miles to reach the police station. He had a small lacerated wound on his left forearm. It cannot be believed that he was not in his senses when he wrote report. His statement shows that on reaching the police station he told all facts to the Station Officer, that the Station Officer asked him to give report in writing and that then he wrote report duly. He has used the words "Soch Samjh Kar." It means that he was in his full senses and had fully attempted to recapitulate the facts. In view of this, the explanation given by him cannot be easily accepted. In this connection it will be noticed that the occurrence was seen by some third persons. The prosecution has not examined any independent witness to prove that really Dev Ram and 2 others had exhorted and on their exhortation Chandra Ram had resorted to firing. 23. TAKING into consideration what has been discussed above, reliance cannot safely be placed on the statements of Moti Ram and Dungar Ram that Dev Ram and 2 others had called upon Chandra Ram to fire at them. Consequently, these 3 appellants cannot be convicted with tie help of section 34. 24. THE learned counsel for the appellants next urged that Chandra Ram had no reason to assault Moti Ram and Dungar Ram on 5-10-1975, that in the occurrence of the morning of 5-10-1975 Motii Ram did not receive any injury and that it was not believable that Chandra Ram assaulted Moti Ram in the morning of 6-10-1975 in Kotabagh dispensary and was arrested as alleged by the prosecution. It is the positive case of the prosecution that in the morning of 5-10- 1975 dispute arose between Dev Ram and Ms son Sohan Ram in connection with the irrigation of the fields, that at that time Chandra Ram and Sohan Ram II came up at the place of quarrel, that they also began to give abuses and that in the meantime Chandra Ram took out a pistol from the pocket of his pant and resorted to firing and that on account of this firing Dungar Ram and Moti Ram were injured. The prosecution has examined the two injured Dungar Ram and Moti Ram. It has not examined any other witness. The victim of assault ordinarily will not spare his real assailant. Dun,gar Ram went to the police station, which is 14 miles away on foot and lodged report at 5. 30 P. M. He clearly attributed the act of firing to Chandra Ram. In the report he clearly mentioned that he was injured at the place between his wrist and elbow. Dr. R. K. Gupta examined him at 7 P. M. and found a fire-arm injury on his left arm. This goes to corroborate the statement of Dungar Ram. 25. IT will further be seen that Dungar Ram clearly alleged in the report that his father Moti Ram came to intervene and Chandra Ram also fired at him. Dungar Ram has given statement on oath accordingly. He has of course not stated on oath, nor he mentioned in the report that his father was injured by the shot. However, there is positive statement of Moti Ram that he was injured by the shot fired by Chandra Ram. Statement of Moti Ram further reveals that he was taken by his other son and nephew to Kotabagh dispensary, that he was admitted in the dispensary and treated. Dr. K. D. Singh Medical Officer, I/O Kotabagh dispensary has corroborated his testimony. There is nothing on record to show that Moti Ram was admitted in the dispensary because of any other ailment. The appellants- counsel pointed out that Dr. K. D. Singh did not record any injury report of Moti Ram in the evening of 5-10-1975. This is no doubt a lapse on the part of Dr. K. D. Singh, but on this account the sworn testimony of Moti Ram and Dungar Ram cannot be discarded. The appellants- counsel pointed out that Dr. K. D. Singh did not record any injury report of Moti Ram in the evening of 5-10-1975. This is no doubt a lapse on the part of Dr. K. D. Singh, but on this account the sworn testimony of Moti Ram and Dungar Ram cannot be discarded. These 2 persons had absolutely no reason to give a false statement against Chandra Ram. Appellant Chandra Ram stated that Moti Ram had got his father murdered in the year 1972. There is no oral or documentary evidence in support of this assertion. Moti Ram and Dungar Ram were not questioned that Moti Ram had got his father murdered in the year 1972. In the circumstances the assertion of Chandra Ram that Moti Ram got his father murdered in the year 1972 cannot be believed. 26. IN a criminal case it is not always possible for the prosecution to affirmatively prove a motive to the offender to commit a crime. it is the offender who knows the reason for his committing crime. IN the present case the prosecution has not attributed any motive to Chandra Ram to assault Dungar Ram and Moti Ram in the morning of 5-10-1975. The prosecution has simply alleged a dispute on irrigation between Dungar Ram on one side and Dev Ram and his son Sohan Ram appellants on the other side. It has then alleged that during this quarrel Chandra Ram and Sohan Ram II had come up and then a little laterChandra Ram took out a pistol from his pant and resorted to firing. IN these circumstances Chandra Ram can only indicate the reasons for his course of action. For all what has been discussed above there is no room to doubt the firing by Chandra Ram in the morning of 5-10-1975 and thereby injuring Dungar Ram and Moti Ram. 27. WITH regard to the occurrence which took place in the morning of 6-10- 1975 in Kotabagh dispensary and the arrest of Chandra Bam by Balag Singh, Station Officer (PW 7) in the dispensary immediately after the assault, the prosecution has examined Prem Prakash (PW 2) sweeper of the dispensary, Baga Ram, constable, who was on guard duty at the dispensary (PW 3), Dr. K. D. Singh (PW 1), who reached just on bearing sound of gun shot, Balag Ram, Station Officer and Moti Ram. Dr. K. D. Singh (PW 1), who reached just on bearing sound of gun shot, Balag Ram, Station Officer and Moti Ram. Dr. K. D. singh recorded the injuries of Moti Ram on that day at 2.30 P.M. He did not; record his injuries immediately after the assault. Dr. K. D. Singh stated that Moti Ram was bleeding at his temple. 28. IT will be noticed that Dr. Singh noted three injuries on the person of Moti Ram. Injury no. 1 was at the right temple. Injuries 2 and 3 were at the abdomen and right side back. Statement of Dr. K. D. Singh indicates that injuries 2 and 3 were caused in the earlier incident of 5-10-1975. Despite the fact that Dr. Singh recorded the injuries of Moti Ram on 6-10-1975 at 2. 30 P.M. and that he recorded all the injuries as fresh there is no reason not to accept the testimony of the prosecution witnesses that the appellant was apprehended in the dispensary early in the morning of 6-10-1975 immediately after having fired a shot towords Moti Ram. Pistol was immediately recovered from the hand of the appellant. Then two cartridges were recovered from his pocket. The appellant was prosecuted for an offence punishable under section 25 Arms Act. Undisputedly he was convicted in the said case and was undergoing sentence on the date of his statement; in the present case before the court below. There is nothing on record to indicate that the police was in any way inimical to Chandra Ram. 29. CHANDRA Ram asserted that be was arrested from his house. He has not proved this fact either by producing any person or by indicating so from the cross- examination of the prosecution witnesses. The circumstances of the case do not indicate that there was any particular advantage to the prosecution in concocting an entirely false occurrence of the morning of 6-10-1975 in Kotabagh dispensary. In case the appellant was arrested from his house he could easily be prosecuted for the occurrence which took place on the preceding day in Pataliya Kotabagh. 30. THE result of the above discussion lis that the prosecution has succeeded in proving the occurrence of the early morning of 6-10-1975 in Kotabagh dispensary and the arrest of Chandra Ram appellant in the dispensary immediately after the occurrence. 30. THE result of the above discussion lis that the prosecution has succeeded in proving the occurrence of the early morning of 6-10-1975 in Kotabagh dispensary and the arrest of Chandra Ram appellant in the dispensary immediately after the occurrence. The appellants' counsel lastly urged that Chandra Ram was not guilty of the offence punishable under section 307 IPC and that he could only be convicted under section 324 IPC. Injury of Dungar Ram was on the left forearm. It was a simple injury. It was not grievous, nor it was dangerous to life. 31. INJURIES 2 and 3 of Moti Ram were on the abdomen and back. They were also simple. They were neither grievous nor dangerous to life. Injury no. 1 was also simple. This injury has also not been stated as grievous or dangerous by Dr. K. D. Singh. 32. DR. K. D. Singh has mentioned the 3 injuries of Moti Ram as bullet injuries. By word "bullet" he means "Tamancha". There is nothing to show that these injuries of Moti Ram were through and through. No bullet was recovered from his injuries. Therefore, the use of the word "bullet" cannot magnify the offence. It is undisputed that the pistol of Chandra Ram was a country made one. It appears that the cartridges which Chandra Ram used were also not deadly. Perhaps the cartridges may be also country made ones. 33. CHANDRA Ram had absolutely no reason to cause any fatal injury to Dungar Ram and Moti Ram. 34. SEC. 307 IPC provides that whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death he would be guilty of murder, shall be punished. In the present case it does not appear that Chandra Ram had an intention to commit the murder of Dungar Ram and Moti Ram. He did not cause any grievous or dangerous injury to any of them. Therefore, as said above, it appears that the cartridges used by him were not dangerous or fatal. Therefore, it cannot be said that the appellant did an act with such knowledge and under such circumstances that he would have caused death. The position, therefore, that follows is that the ingredients of section 307 are not made out in the present case. Therefore, it cannot be said that the appellant did an act with such knowledge and under such circumstances that he would have caused death. The position, therefore, that follows is that the ingredients of section 307 are not made out in the present case. Its necessary consequence is that Chandra Ram appellant is only guilty for the offence punishable under section 324 IPC for having caused injuries to Dungar Ram and Moti Ram. 35. THE question now is about the sentience to be awarded to him for the offence u/Sec. 324 IPC. THE occurrence took: place on 5th and 6th October, 1975. He was bailed out on 6-7-1978. It means that he remained in Jail for 2 years and 9 months. He has suffered RI for having unlicensed arm. He was sentenced to undergo 2 years' RI under section 25 Arms Act. THE offence under section 25 Arms Act was committed in the course of the two occurrences which took place on 5-10-1975 and 6-10-1975. In all these circumstances it would be just if the appellant is made to suffer imprisonment for the period already undergone. 36. CRIMINAL Appeal No. 600 of 1978 is partly allowed in this way that the conviction and sentence of Chandra Ram appellant under section 307 IPC recorded by the IV Additional Sessions Judge Nainital are set aside and instead he is convicted under section 324 IPC and sentenced to the period of imprisonment already undergone. He need not surrender to his bail bonds which are hereby discharged. Criminal Appeal No. 1754 of 1977 is allowed and the conviction and sentence of Dev Ram, his son Sohan Ram and another Sohan Ram u/Sec. 307/34 IPO recorded by the IV Additional Sessions Judge Nainital are set aside. They are acquitted of the charge levelled against them. These three appellants are on bail to which they shall not surrenden. Their bail bonds are discharged. Ordered accordingly.