JUDGMENT P.N. Goel, J. 1. Dalbir, s/o Nahar Singh, r/o village Dubagar, Police Station Akrabad, district Aligarh has been convicted and sentenced under section 307 IPO to undergo RI for 7 years and to pay a fine of Rs. 600/-. 2. The village of the appellant is about one mile from village Bhopal Garhi which is also within the limits of police station Akrabad. Munshi Lal (PW 1) is a native of Bhopal Garhi. A field of Dalbir appellant and his father is quite close to the house of Munshi Lal. On 6-9-1974 at about 8 A. M. Munshi Lal was bringing a load of grass for his cattle from the field of Prempal and reached near a pond which is adjacent to the Abadi of village Bhopal Garhi. It is alleged that Dalbir aiming a country made pistol towards Munshi Lai said that he would see him. Munshi Lal threw his load of grass and began to raise alarm. Dalbir appellant fired a shot towards him. Munshi Lal was injured and fell down. Dalbir then bolted away. 3. Reason for the assault was that bouse of Karan Singh was adjacent to the house of Munshi Lal, that Nahar Singh, father of the appellant wanted to purchase it, that Munshi Lal purchased the said house, that on this account Nahar Singh and members of his family were hostile to Munshi Lal. Therefore, then took place proceedings under section 107 CrPC against Nahar Singh. Munshi Lal filed a complaint against Nahar Singh for injuring his she-buffalo with a ballam. This complaint was pending on the date of occurrence. 4. On the date of occurrence at 10:55 A. M. Munshi Lal lodged a written report at the police station which is 5 miles away. Then at 11 A.M. Dr. R.K. Katiyar of Primary Health Centre Akrabad (PW 5) examined Munshi Lal and found following injuries on his person : (Injuries quoted-Editor). Both the injuries were simple. The: case was investigated into by Chaitan Swarup Singh, SI (PW 6). 5. The appellant did not admit to have assaulted Munshi Lal and asserted that he had been falsely implicated on account of partibandi. 6. On facts, the prosecution examined! Munshi Lal, Babu and Dambar. No witness was examined in defence. The learned II Additional Sessions Judge Aligarh did not place full reliance on the testimony of Dambar. 5. The appellant did not admit to have assaulted Munshi Lal and asserted that he had been falsely implicated on account of partibandi. 6. On facts, the prosecution examined! Munshi Lal, Babu and Dambar. No witness was examined in defence. The learned II Additional Sessions Judge Aligarh did not place full reliance on the testimony of Dambar. He believed the testimony of Munshi Lal and Babu and convicted the appellant. 7. Learned counsel for the parties have been heard and record has been examined with their assistance. 8. Learned counsel for the appellant contended that reliance could not be placed on the testimony of the prosecution witnesses, that the assailant was not even seen by Munshi Lal because the assailant fired from the back side of Munshi Lal and that the appellant had been falsely implicated on account of enmity. The learned Additional Sessions Judge has not placed reliance on the evidence of Dambar because on the date of occurrence he was expected to be present at the place where he was having his fields in the district of Farrukhabad. Sister of Dambar is married to Harpal of district Farrukhabad. Dambar has no fields in the village of occurrence, depsite the fact that he is a native of the village of occurrence. He works as a labourer in his village. His sister gave six bighas land to him 3 years before his statement on 3-8-1976. It means that he was given this land about one year before the occurrence. Dambar clearly stated that he did not go to Farrukhabad in the year in which his sister gave him land and that he had gone to Farrukhabad in the year in which he gave statement before the trial Judge. His statement shows that on the date of occurrence Harpal Singh was also in the village of occurrence. He had also rushed to the scene of occurrence along with Dambar. Both these persons were interrogated by the investigating officer at about 4 or 5 P. M. on the date of occurrence. In case Dambar and Harpal were not in the village of occurrence, on the date of occurrence and were at Farrukhabad they could not have been interrogated by the investigating officer on the date of occurrence. Both these persons were interrogated by the investigating officer at about 4 or 5 P. M. on the date of occurrence. In case Dambar and Harpal were not in the village of occurrence, on the date of occurrence and were at Farrukhabad they could not have been interrogated by the investigating officer on the date of occurrence. In view of this circumstance and the positive statement of Dambar thai: he had not gone to Farrukhabad 3 years ago, the learned trial Judge has wrongly observed that he was expected to be present on the date of occurrence in the district of Farrukhabad. Therefore, the learned trial Judge has committed an error in not relying on the evidence of Dambar for the reason given by him. 9. The record indicates that Munshi Lal and Babu (PWs 1 and 2) were inimical to the appellant from before the occurrence and that Dambar was an obligee of Nanhoo, s/o Munshi Lal )PW 1). In examination in chief Munshi Lal has narrated the reasons for the enmity between him and Nahar Singh. There is, however, no oral evidence to support the statement of Munshi Lal that Nahar Singh wanted to purchase the house of Karan Singh. Criminal case under section 107 CrPC against Nahar Singh was dismissed by the magistrate. The magistrate even did not record the statement of Munshi Lal or any witness therein. There is, however, one instance i.e. Nahar Singh caused injury to the she-buffalo of Munshi Lal with a ballam and Munshi Lal brought a criminal case against him. This case was pending at the time of the present occurrence. Munshi Lal gave evidence in the said case in which ke admitted that Nahar Singh had already brought a case against him (vide Ex. Kha. 3). It is thus evident that the relations of Munshi Lal and Nahar Siragh were strained. It appears that Nahar Singh brought a case against Babu,, his brother Nanhoo, Chhotey Lal and Ganga Prasad in Tehsil Sikandrarai) for breaking Chak road and including it into their fields. Babu and Munshi Lal have shown ignorance about it. The defence has filed copy of application given by Nahar Singh on 5-12-1973 (Ex. Kha 4). Babu has admitted that he had to pay fine for breaking Chak road. Babu and Munshi Lal have shown ignorance about it. The defence has filed copy of application given by Nahar Singh on 5-12-1973 (Ex. Kha 4). Babu has admitted that he had to pay fine for breaking Chak road. He also admitted that his brother Nanhwo, Chhotey Lal and Ganga Prasad were also fined, it is thus evident that Babu is hostile to the appellant. Dambar brought a case against Bhure Singh. In that case Nanhoo, s/o Munshi Lal gave evidence in favour of Dambar. It is thus apparent that Dambar is an obligee of the son of Munshi Lal. In this way the prosecution has not examined a single independent witness. 10. A scrutiny of the statements of the three prosecution witnesses reveals that the assailant was not seen by any of them. It will be borne in mind that the two gun shot injuries were on the back of Munshi Lal and that they were caused by one shot only. Dr. R. K. Katiyar has stated so and there is positive statement of Munshi Lal that only one shot was fired at him. Munshi Lal stated in cross- examination that when he was coming with a bundle of grass, the village people were not going and coming, that at the time of occurrence he did not see any body other than the appellant. He further stated that after throwing the bundle he proceeded in the direction in which he was going from before. It means that he proceeded towards his house. When he was proceeding towards his house Dalbir appellant was in front of him aiming his pistol towards him. But Dalbir did not fire his pistol at that time. Munshi Lal then stated that when he began to run Dalbir fired at him, that when he passed by the side of Dalbir, he was at one step from him. It is thus evident that when Dalbir was in front of Munshi Lal, he did not fire at him. He also did not fire at Munshi Lal when he passed by his side. There appears no reason as to why Dalbir did not fire just as Munshi threw his load of grass. There also appears no reason as to why he did not fire at Munshi Lal when he was just by his side at one step. He also did not fire at Munshi Lal when he passed by his side. There appears no reason as to why Dalbir did not fire just as Munshi threw his load of grass. There also appears no reason as to why he did not fire at Munshi Lal when he was just by his side at one step. These facts go to show that Munshi Lal is not telling the truth. These facts further indicate that the assailant fired only once at Munshi Lal from his back side. It is thus evident that Munshi Lal would not have seen his assailant. Obviously the assailant, after having shot at Munshi Lal once from the back side, would have bolted away. It is apparent from the statement of Munshi Lal, referred to above, that at the time of occurrence he did not see any person other than the appellant. It means that he did not see Babu and Dambar at the time of occurrence. Munshi Lal has clearly stated that Dambar, Harpal and Babu had come up when Dalbir was trying to load his pistol again and that these witnesses lifted him from the scene of occurrence and took him to his house. The first information report does not show that Dalbir made attempt to load his pistol again. Babu and Dambar both have stated that the brother of Munshi Lal had come to the scene of occurrence and that he took away Munshi Lal from that place to his house. Both these witnesses did not accompany Munshi Lal from the place of occurrence to his house. The variation appealing in the statement of Munshi Lal on one side and the statements of these witnesses goes to indicate that the two witnesses were not present at the time of occurrence. Babu stated that Dalbir began to re-load his pistol. As said above, this fact is not mentioned in the first information report. After the occurrence Babu want to his house in the village abadi. He had no talks about the occurrence with any villager. This also goes to show that he had not seen the occurrence. Babu went to the police station later on to see the condition of Munshi Lal. This goes to show that he is interested in Munshi Lal. After the occurrence Babu want to his house in the village abadi. He had no talks about the occurrence with any villager. This also goes to show that he had not seen the occurrence. Babu went to the police station later on to see the condition of Munshi Lal. This goes to show that he is interested in Munshi Lal. Dambar clearly stated in cross-examination that he did not hear the cries of Munshi Lal and that he rushed on hearing the sound of gun shot. This goes to indicate that he reached the scene of occurrence after the assailant had fired and bolted away from the scene of occurrence. Dambar clearly stated that when he reached the scene of occurrence he saw Dalbir running away towards his village. This goes to show that he saw the back of Dalbir and not his face. 11. The position that follows from the above discussion is that Babu and Dambar were not present at the time of occurrence, that they had not seen the face of the assailant and that Munshi Lal had also not seen the face of the assailant. The appellant's counsel has therefore, rightly contended that Munshi Lal was assaulted from his back side and the assailant had then immediately bolted away and, therefore, even Munshi Lal had not seen the face of the assailant. 12. IN view of the above, the evidence of the prosecution witnesses does not establish the case of the prosecution against the appellant beyond any reasonable doubt. There was enmity of Munshi Lal with the appellant and as such he could easily falsely implicate him. In the result the appeal succeeds. At the end it is appropriate to observe that both the injuries of Munshi Lal were simple. They were only skin deep. The assailant did not fire when Munshi Lal was close to him. He fired from a distance. In these circumstances the assailant does not appear to have fired with the intention of causing death or with the knowledge that he was likely to cause the death of Munshi Lal. Therefore, the assailant cannot be convicted and sentenced under section 307 IPC. He can only be convicted under section 324 IPC. The learned Additional Sessions Judge has committed an error in applying section 307 IPC and thereby passing wholly inappropriate sentence. 13. Therefore, the assailant cannot be convicted and sentenced under section 307 IPC. He can only be convicted under section 324 IPC. The learned Additional Sessions Judge has committed an error in applying section 307 IPC and thereby passing wholly inappropriate sentence. 13. For what has been said above, the appeal is allowed and the order dated 25-8-1976 passed by the II Additional Sessions Judge convicting and sentencing the appellant under section 307 IPC is set aside. The appellant is acquitted in the case. He is on bail. He need not surrender. His bail bonds are discharged. Fine, if paid by the appellant, will be refunded to him. Appeal allowed.