JUDGMENT 1. - The learned Additional Sessions Judge, Ganganagar under his judgment dated September 14, 1976 convicted accused Bhagsingh under section 307 l.P.C. and sentenced him to undergo 51/2 years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of which to further suffer six months rigorous imprisonment. He has also been sentenced to undergo two yearsrigorous imprisonment under section 27 of the Arms Act. The other accused Surjeetsingh has been convicted under section 307/109 IPC and sentenced to undergo four years rigorous imprisonment. 2. In brief the case of the prosecution is this. Agricultural land Murbba No. 144/352 in Chak No.7 LC was once allotted to one Kartar Singh who is said to be the maternal grandfather of Darshan Singh P.W 3. Darshan Singh P.W 3 was actually in physical possession of the said agricultural land on behalf of Kartar Singh, the allottee and was cultivating it. The same agricultural lands were again allotted to one Kripalsingh, but Kartarsing obtained a stay order and continued to be in possession of it. Accused appellant Bhagsingh is the real brother of Kripalsingh to whom the land was subsequently allotted. It is alleged that as a result of the dispute of the allotment of the agricultural lands the relation between Bhagsingh accused appellant on the one hand and Kartarsingh and Darshansingh on the other hand were strained. Jeetsingh P.W.4 is a relation of Darshan Singh P.W.3 (being his fathers sister s son) and he resides with him on the agricultural lands. Pritam Singh P.W.2 is the brother in law of Jeet Singh. On November 23, 1973 at about 5 or 4 45 p.m. when Darshansingh P.W.3 along with Jeetsing P.W.4 and Pritamsingh P.W.2 and others was sitting in a room in his house situated in the fields, it is alleged that after some time Darshansingh started for his house situated in the village. Pie was followed by Jeetsingh P.W.4, Pritamsingh P.W.2 and one Bhagwantsingh. When they travelled a little distance, it is alleged that both the appellants came from the side and accused appellant Bhagsingh was armed with a pistol. Seeing that Darshan Singh has come, it is alleged that the accused Surjeetsingh exhorted Bhagsing accused that the enemy has come and he should fire. When they travelled a little distance, it is alleged that both the appellants came from the side and accused appellant Bhagsingh was armed with a pistol. Seeing that Darshan Singh has come, it is alleged that the accused Surjeetsingh exhorted Bhagsing accused that the enemy has come and he should fire. Accused Bhagsingh fired from his pistol at Darshansingh and the pellets hit Darshansingh on his left chest as a result of which he fell on the ground. The accused persons are said to have fled away. The injured Darshan Singh P.W.3 was taken by Jeet Singh, Pritam Singh and others to the hospital, Vijaynagar. Darshan Singh wss admitted in the hospital at 12.10 a.m. on that day. As it was a medico legal case, Dr.Momanram P.W.l, the then Incharge Government Hospital, Vijaynagar sent intimation to the S H.O. Vijaynagar under Ex.P.l. Thereafter Dr. Momanram examined Darshansingh and found the following injuries:- "1. Gunshot wound 21/2" x l"x not probed on the anterior aspect of left side of chest 11/4" lateral to the mid sternal line and 2" above the left nipple with localised surgical emphysema and multiple punctured wounds each ⅙" x ⅛" not probed (approximately 80 in number) are present around it in an area of 2" to 31/2" in diameter. 2. Multiple punctured wound (approximately 30 in number) each 116" x 1 /8" x not probed are present on the upper third of Anteromedial side of left arm." 3. The margin of wounds were lacerated and inverted. Their direction was backward and outwards. There is no blackening and scorching but tattooing was present on the margins of the wounds. The blood pressure per minute was 108/68 mm. The general condition was fair. In the opinion of Dr. Momanram the injuries were caused by gun shot. He referred Darshan singh to Sri Ganganagar hospital to determine the nature of injury No.l. Injury No.2 was simple. The age of injuries was 10-12 hours. Dr S.S.Bhargava P.W.5 was working as Radiologist at General Hospital, Ganganagar. On November 26, 1973 on the requisition of Dr. Momanram of Vijaynagar hospital Dr. Bhargava took the X ray of Darshan Singh. The skygram of chest and left arm were obtained in his presence and under hi; supervision. He found multiple radio opaque metallic pellet like shadows in the middle and left side of chest and the left arm (upper part) region. Momanram of Vijaynagar hospital Dr. Bhargava took the X ray of Darshan Singh. The skygram of chest and left arm were obtained in his presence and under hi; supervision. He found multiple radio opaque metallic pellet like shadows in the middle and left side of chest and the left arm (upper part) region. The raised hemidiaphragm decreased left lung field and haziness in the left mid zone is suggestive of atelectasis (Lobular) in this region. On reading the X-ray report Dr. Momanram P.W.l opined that injury No. l was grievous in nature. 4. The accused were arrested and after investigation a charge sheet was filed against them. Charges under section 307 and 27 Arms Act were read over to Bhagsingh and charge u/s 307/109 was read over to other accused Surjeet Singh. Both of them pleaded not guilty to the charge and claimed to be tried. 5. Prosecution examined as many as six witnesses. There after accused persons were examined under section 313 Cr.P.C. to explain the circumstances against them in the evidence of the prosecution witnesses. The accused persons stand on a bare plea of denial. They examined as many as 9 witnesses in defence. Most of the witnesses were examined to prove the alibi set up by the accused persons. A case was also set up by the accused persons that as a matter of fact Bhagwansingh Darshan Singh and others were consuming alcohol. Bhagwan Singh was armed with a pistol and it when went of accidental and as a result of it Darshan Singh received injuries but leaving Bhagwansingh, the accused persons have been falsely implicated. 6. The learned Sessions Judge placing reliance on the evidence of the prosecution and disbelieving the defence convicted and sentence accused as aforesaid. 7. The contention of Mr. Munshi learned advocate for the accused appellant was this, Pritamsingh was not an eye witness he was not and should not be present at the time of the occurrence. Bhagwansingh who was an eye witness has not been produced and as such an adverse inference should be raised. According to him the F.I.R. was not lodged immediately, no blood was found on the scene of the occurrence and only on the evidence of interested witnesses, the conviction of the accused cannot be upheld. Bhagwansingh who was an eye witness has not been produced and as such an adverse inference should be raised. According to him the F.I.R. was not lodged immediately, no blood was found on the scene of the occurrence and only on the evidence of interested witnesses, the conviction of the accused cannot be upheld. Lastly it was contended by the learned advocate that the evidence of Lalkara against accused Surjeetsingh should not be relied upon and at any rate no case is made out against accused Surjeetsingh. It is also contended that no offence u/s 307 I.P.C. is made out because the doctor has not stated that the injury was sufficient in the ordinary course of nature to cause death and cartridge No.6 which used for killing birds appears to have been used in this case and it goes to show that the intention of the accused persons even if any of them fired at Darshansingh was not to cause the death of Darshansingh The learned Public Prosecutor on the other hand has supported that judgment of the learned Sessions Judge and he contends that there is no delay in lodging the F.I.R. because no sooner the injured was admitted in the hospital a message was flashed by the doctor to the S.H.O. who arrived at the spot and recorded the statement of Darshan Singh which is the F.I.R. in this case. It is also contended by the Public Prosecutor that there is no doubt the witnesses are relatives of injured but on that account alone their evidence cannot be brushed aside and if their evidence is scrutinised it has stood the cross examination He therefore, submits that the prosecution has succeeded in bringing home the guilt against accused appellants without any reasonable doubt. No doubt, in the instant case, the three witnesses including the injured are near relations and no independent witness has come forward. But merely because the witnesses are related to the injured, their evidence cannot be ignored and all that is required by the court is that the court should scrutinise the evidence of such witness with caution. The learned Sessions Judge has dealt with the argument about the alleged delay in lodging the F.I.R. but has observed that there was no delay and the F.I.R. was lodged within reasonable time. The learned Sessions Judge has dealt with the argument about the alleged delay in lodging the F.I.R. but has observed that there was no delay and the F.I.R. was lodged within reasonable time. The occurrence is said to have taken place at about 4.45 or 5 p.m. on 23rd October 1973 in village 7LC. The injured Darshansingh was taken by Jeet Singh, Pritam Singh and others to hospital Vijaynagar The condition of Darshansingh was serious as appears from the statement of Momanram, the doctor P.W. 1, who found that his blood pressure was 108/68 mm per minute. No sooner Darshan Singh P.W.3 reached the hospital at Vijaynagar, Dr.Mamanram sent an intimation to the S.H.O. Vijaynagar to come immediately. Ramdayal P.W.6 was the then S.H.O. Vijaynagar. He received intimation of the doctor at 12.40 and immediately reached the hospital and recorded the statement of Darshansingh P.W.2 which is the F I.R. in this case. Thus to me there appears to be no delay in lodging the F.I.R. In the circumstances of this case, looking to the condition of the injured, this much delay cannot be said to be any delay at all. 8. It cannot be disputed that Darshan Singh received gun shot wounds. Besides the statement of Darshan Singh that he received injuries by a gun shot and the statements of Jeetsingh P.W.4 and Pritam Singh P.W.2, there is the statement of Dr. Momanram P.W. 1 who found two gun shot injuries. The gun shot injuries were on the left side of the chest and upper third of the anteromedial side of the left arm. On the left arm there were multiple punctured wound (approximately 30 in number). On X-ray by Dr. S.S. Bhargava P.W.5, it was revealed that there were multiple radio opaque metallic pellet like shadows in the middle and left side of chest and the left arm (upper part) region. Thus the presence of shadows clearly goes to show that there were gun shot injuries on the person of Darshan Singh P.W. 3. On X-ray by Dr. S.S. Bhargava P.W.5, it was revealed that there were multiple radio opaque metallic pellet like shadows in the middle and left side of chest and the left arm (upper part) region. Thus the presence of shadows clearly goes to show that there were gun shot injuries on the person of Darshan Singh P.W. 3. I will later on advert as to what offence is made out whether it is under section 307, 326 or 324 I.P.C. But first I will deal as to whether it is the accused appellant Bhagsing, who can be said to be responsible for having caused these injuries and as to whether he fired at Darshan Singh in furtherance of the common intention of himself and Surjeet Singh, the other accused. 9. Darshan Singh the injured P.W.3 states that when he was going to his house from his fields and when he had travelled a little distances, both the accused came out from their concealment and accused Surjeetsingh exhorted Bhagsingh what the enemy has come and he should fire. At his exhortation it is alleged that Bhagsingh fired from his revolver. P.W.l Dr.Momanram found that there was no blackening and scorching of the skin but tattooing of the skin was present on the margins of the wound. He has also stated that it suggests that the fire arm must be fired from within 6 from the injured. Though the learned counsel for the accused appellant by referring to the statements of the above named three witnesses viz., Darshan Singh P.W.3, Pritam P.W.2 and Jeet Singh P.W.4 has tried to argue that there is conflict in their evidence as to from what distance the fire arm was used, but I am of the opinion that if the statements of the three witnesses are scrutinised it can be said that the fire arm was fired from a distance of 6-10. Thus to me there appears to be no conflict between the evidence of eye witnesses and the medical evidence. 10. The statement of Darshan Singh P.W. 3 injured is corroborated by the statements of Jeetsingh P.W.4 and Pritam Singh P.W.2. Both of them have been stated that both the accused appellants all of sudden came out of their concealment, accused Bhagsingh was armed with a revolver and the other Surjeetsingh exhorted him to shoot Darshan Singh. 10. The statement of Darshan Singh P.W. 3 injured is corroborated by the statements of Jeetsingh P.W.4 and Pritam Singh P.W.2. Both of them have been stated that both the accused appellants all of sudden came out of their concealment, accused Bhagsingh was armed with a revolver and the other Surjeetsingh exhorted him to shoot Darshan Singh. It was only then that Bhag Singh fired and Darshan Singh received injuries on his chest and hand. They have also stated that they took the injured Darshan Singh to hospital Vijaynagar and Bhagwan Singh also accompanied them. According to the learned counsel for the accused appellants, Pritam Singh P.W.2 was not and should not have been present at the time of the incident, he being a resident of village Kharla., Pritam Singh P.W.2 is a relation of Jeet Singh P.W. 4. Jeet Singh P.W. 4 admits that Piitam Singh is his sisters husband (Behnoi). Pritam Singh P W.2 states that he had gone to meet Jeetsingh who was living with Darshan Singh and then he came to know that both Darshan Singh and Jeet Singh were at their fields. He found both of them on the fields and at about 5 or 5.30 p.m. when all of them returning to the house and Darshan Singh was ahead of them, Bhagsingh and Surjeet Singh came out and Surjeet Singh exhorted Bhagsingh that the enemy should not go away and he should be killed. At this a gun was fired. A similar statement was made by Jeet Singh. No doubt, Pritam Singh is a resident of other village but he was relation of Jeet Singh and, therefore, there is no reason to disbelieve his statement that he on the day of incident had gone to see Jeet Singh and was with him. A lock at the F.I.R. Ex.P.4, which is the statement of Darshan Singh recorded by the investigation Officer, will show that the name of Pritam Singh find mentioned therein. It is also come in evidence that amongst those who had taken Darshan Singh injured to the hospital, Vijaynagar, Pritam Singh was also there. A lock at the F.I.R. Ex.P.4, which is the statement of Darshan Singh recorded by the investigation Officer, will show that the name of Pritam Singh find mentioned therein. It is also come in evidence that amongst those who had taken Darshan Singh injured to the hospital, Vijaynagar, Pritam Singh was also there. It was about 12 in the night that the statement of Darshan Singh was recorded by the investigating Officer and the fact that the name of Pritam Singh is mentioned therein and that he had come to meet Jeet Singh and was present at the time of the incident goes to show that he had witnessed the occurrence and merely because he is resident of other village, his statement cannot be brushed aside. After having gone through the statement of Pritam Singh, I do not find any reason to disbelieve only on the ground that he is the relation of Jeet Singh. Jeet Singh P.W.4 is a cousin brother of Darshan Singh P.W.3 and he was cultivating the fields No. 144/352 in chak No. 7 LC alongwith Darshan Singh. He states that Darshan Singh had come to see him and at about 5 p.m. or so, when they were coming from the fields to the house in the way accused persons came out and accused appellant Bhag Singh was armed with a revolver and at the exhortation of other accused Surjeet Singh he fired at Darshan Singh, who received injuries on his chest. In a detailed cross examination nothing favourable to the accused persons has been brought. I have already said earlier that on examining the injuries of Darshan Singh, the doctor found two gun shot injuries on his left chest and on the upper third of the anteromedial side of left arm. On X-ray radio opaque metallic pellet like shadows were seen both on the left chest and left arm (upper part) region. The statement of the doctor therefore, corroborates the statement of the injured Darshan Singh that he received gun shot injuries. 11. It is contended by the learned advocate that at the scene of occurrence no blood was found and, therefore, the case of the prosecution that the occurrence took place in the way when Darshan Singh was going from his fields to his house does not appear to be correct. 11. It is contended by the learned advocate that at the scene of occurrence no blood was found and, therefore, the case of the prosecution that the occurrence took place in the way when Darshan Singh was going from his fields to his house does not appear to be correct. It may be observed here that the police after the investigation filed a final report under section 169 Cr.P.C. But the Magistrate did not accept the final report and on the complaint of Darshan Singh took cognizance of the offence. The occurrence had taken place on November 23, 1973 at about 5 p.m. in a through fare. The site plan was only prepared on the next day i.e. on November 24, 1973 and merely because no blood was at the place of the occurrence it does not go to show that the statement of the witness are false and on this account their statements should not be read upon. A dat was also recovered and it appears that it was of cartridge No. 6. But that has not been connected with the crime and there is no material that it was the remnant of a gun shot fired at Daishan Singh. The fire arm has also not been recovered and thus the dat is not connected with the weapon and it cannot be said that the recovery of thedatoutside the kotha goes to show that it is the part of the cartridge fired from the revolver. 12. I am, therefore, of the opinion that notwithstanding the fact that Bhagwan Singh was not examined on the statements of three witnesses, amongst whom is also the injured Darshan Singh, it can be said that Bhag Singh had fired from a distance of about 6-10 from the injured. 13. The question is as to whether the case of the prosecution that it was at the exhortation of Surjeet Singh that Bhag Singh fired at Darshan Singh is correct or not. It is not the case of the prosecution that accused Surjeet Singh besides exhorting Bhag Singh did any other act towards the commission of the crime or in any other manner abetted Bhag Singh in the commission of the crime. It is not the case of the prosecution that accused Surjeet Singh besides exhorting Bhag Singh did any other act towards the commission of the crime or in any other manner abetted Bhag Singh in the commission of the crime. All the witnesses have stated that both the accused persons had borne together and if the intention of both of them would have been to put an end to the life of Darshan Singh and if they had come with that end in view, there was no need of any exhortation by accused Surjeet Singh as no sooner both accused would have come together accused Bhagsingh who was armed with a revolver would have fired at Darshan Singh P.W.3. It is generally seen that the evidence of Lalkar is introduced to involve another. There was enmity on the agricultural land also as admitted by Darshan Singh P.W.3 Their Lordship in Jainual Haque v. State of Bihar (CR.L R.(SC) 1973 page 750 has observed that:- "The evidence of exhortation is, in the very nature of things, as weak piece of evidence. There is quite after a tendency to implicate some person in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." It will appear that a look at the F.I.R. Ex.P.4 and the statement of witnesses so far as the evidence of exhortation is concerned, is not consistent In F.I R. Ex.P.4 it is mentioned that the accused Surjeet Singh gave out to Bhag Singh that the enemy had come and that what he is looking for and he should not be able to escape and he should fire. P.W.2 Pritam Singh who have been held to be an eye witness says that the accused Surjeet Singh exhorted Bhag Singh that the enemy may not be able to go and he should fire. The case against Surjeet Singh is, therefore, rendered doubtful and only on the evidence of exhortation I am not inclined to convict him under section 307/109 I.P.C. 14. The case against Surjeet Singh is, therefore, rendered doubtful and only on the evidence of exhortation I am not inclined to convict him under section 307/109 I.P.C. 14. The next question is about the defence taken by the accused persons that it was Bhagwan Singh who was taking liquor with Darshan Singh and he loaded a revolver which hit Darshan Singh P.W.3. If Bhagwan Singh would have been the actual assailant, the injured would not have spared him. It cannot be believed that an injured will leave the main culprit and involve others. The plea of alibi put up by the accused was rightly disbelieved by the trial court. 15. Now the question is as to whether an offence under section 307 or/and 326 1PC. is made out against accused Bhag Singh. The intention of the accused for an act can be inferred from the weapon used, part of the body on which the injury is inflicted and the other circumstances of the case. In the instant case the fire arm was fired by the accused from a distance of about 6-10. There was tattooing on the margins of the wounds, the part of the body aimed was chest and Darshan Singh received injuries on left side of the chest 11/4" lateral to the mid sternal line and 2" above the left nipple with localised surgical emphysema and multiple punctured wounds each ⅕" X ⅛" x not probed. There were also multiple punctured wounds (approximately 30 in number) each ⅙" x ⅛" x not probed on the upper third of anteromedial side of left arm. The opinion of doctor Momanram PW. 1 is that injury No. 1 was grievous. Ultimately it is for the court to say as to whether the injury is grievous or simple. No doubt the court has to seek assistance from the medical opinion. A look at the injury report of Darshan Singh will show that the doctor has placed sign of interrogation in column No. 4 and has not mentioned therein that the injury was grievous It means that the doctor wanted to wait for the result of the X-ray examination. It has been mentioned by Dr. Momanram that as per the X-ray injury No 1 was found to be grievous in nature. He does not say that in his opinion the injury was grievous in nature. Dr. Bhargava PW. It has been mentioned by Dr. Momanram that as per the X-ray injury No 1 was found to be grievous in nature. He does not say that in his opinion the injury was grievous in nature. Dr. Bhargava PW. 5 has stated that the raised hemidiaphragm decreased left lung field and haziness in the left mid zone is suggestive of atelectasis (Lobular). He does not say as to whether as a result of it the injury is grievous. Grievous injury is defined in section 320 of the IPC. The case can only fall under clause eighty of section 320 of the IPC. Under that clause any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits is designated as grievous. Dr. Momanram PW. 1 has clearly stated that the injury was not sufficient in the ordinary course of nature to cause the death. He further states that such injury can prove fatal in the event of some complications which may develop later on. According to him an injury by a fire arm is fatal if some internal organ is involved by such injury. He also states that the condition of the injured was fair and he did not think it necessary to get his dying declaration recorded. After the pellets were extracted and if so what was the condition of the injured, whether any vital organ such as lung was also affected or damaged to this effect there is no material on record. Blackiston in New Gold Medical Dictionary (Illustrated) second edition has described atelectasis as collapsed careless state of part of a lung. Thus it can be said that on X-ray examination lung which is a vital part was effected. There is no material on record that there was permanent impairing of the lung. Dr. Momanram has clearly stated that the injury was not such which endangered life. Dr. Bhargava does not say a word and in the absence of any material that the injury was such which endangered life, it cannot be designated as grievous. The injured does not say that as a result of the injury he suffered severe bodily pain during twenty days or was unable to follow his ordinary pursuits. On the material on record it is not possible to hold that the injury was grievous. 16. The injured does not say that as a result of the injury he suffered severe bodily pain during twenty days or was unable to follow his ordinary pursuits. On the material on record it is not possible to hold that the injury was grievous. 16. But the question still is even if the injury was not grievous and a fire arm is used from a close range and the part of the body aimed is chest, whether the accused did an act of firing at the injured with such intention or knowledge and under such circumstances that if the death of Daishan Singh would have been caused the accused would have been responsible under section 302 IPC. There was collapse of part of lung and as such it can be said that to some extent a vital part of the body was affected. In Liyakat Mian v. State of Bihar (1973) 4 SCC, 39 their Lordships have held that by an act of shooting from close quarters, had the accused death, then he would certainly have been guilty of murder. Thus the accused is guilty under section 307 IPC. because the reasonable consequences must be assumed from the act of shooting indulged in by him. In Dhulabhai v. State of Gujarat, (1977) 1 SCC 454 a shot was fired by the accused and hit the victim only a few inches away from a vital part of the body, held conviction under section 307 is proper. Looking to the facts and circumstances of the case, it can be said that the accused intended to cause death of Darshan Singh. The accused, therefore, was rightly convicted under section 307 IPC. 17. The learned Sessions Judge has convicted the accused under section 307 IPC and sentenced him to undergo 51/2 years rigorous imprisonment and a fine of Rs. 500/-. The accused has also been convicted under section 27 of the Arms Act. The sentence of 51/2 years appears to be excessive. 18. In the result the appeal of Surjeet Singh is allowed the judgment of the learned Sessions Judge convicting and sentencing him under section 307/109 IPC is set aside. He is on bail and heed not be surrendered. His bail bonds shall stand cancelled. 19. The appeal of Bhagsingh accused is partly allowed. 18. In the result the appeal of Surjeet Singh is allowed the judgment of the learned Sessions Judge convicting and sentencing him under section 307/109 IPC is set aside. He is on bail and heed not be surrendered. His bail bonds shall stand cancelled. 19. The appeal of Bhagsingh accused is partly allowed. So far as his conviction u/s 307 IPC and 27 of the Arms Act is concerned, the same is upheld and the appeal is dismissed but under section 307 IPC the accused shall suffer three years R.I. and to pay a fine of Rs. 100/-, and in default of payment of which, he shall further suffer two months R.I. The substantive sentence in both the counts shall run concurrently. The accused is on bail. He shall surrender forthwith to his bail bounds in the trial court failing which the trial court shall take steps to get him apprehended so that he shall undergo the sentence awarded or any remaining part thereof.Appeals decided Accordingly. *******