N. N. SHARMA, J. ( 1 ) THIS appeal is directed against order of Sri B. K. Misra, learned II Additional Sessions Judge, Shahjahanpur dated 30. 9. 197x by which appellants were convicted under Section 324 read with Section 34 of Indian Penal Code, a fine of Rs. 250/- was imposed on each appellant; defaulter was to undergo three months rigorous imprisonment. 2. All the appellants are inter-related. Appellants Ram Kishore and Brij Kishore are own brothers cousins of appellant Atma Ram. Appellant Chhabinath is their uncle. A. 11 the appellants and informant Kripa Shmker, father of Ram Niwas (P. W. 1), are co-villagers, residents of village Nausara, hamlet of Zera Rahimpur Chauki, Police Station Allahganj, district Shahjanpur. 3. There had been a long drawn litigation amongst the parties for about twenty years prior to the occurrence in connection with some land and So their relations were embittered. On 5. 3. 1976, at about 4. 30 P. M. , Ram Niwas (PW 1) was sitting at his platform when all the appellants raided the house of injured and with intent to kill Ram Niwas, fired gun shots on him. Meanwhile Ram Niwas bolted the door from inside and went on the roof, however, he was hit on the roof also where some of the pellets fell. Ram Niwas (PW 1) was bleeding from his injuries. Blood and pellets fell on the roof. Banwarj Lal (PW 2 ). Ram Deo, Prem Chand Babu Ram etc. witnessed the occurrence. A written report Ext. Ka 2, ascribed by Kripa Shanker, was made over at police station Allahganj in the same evening by informant at 5. 55 P. M. Distance of police station from the police out post was about three miles. 4. Dr. K. K. Agarwal examined Ram Niwas at Primary Health Centre. Jalalabad. Shahjahanpur in the same evening at 9. 30 P. M. and detected following injuries on his person: 1. Gunshot wound 2/10x2/lo"x skin deep on the right side front aspect upper part abodmen, 411 above the umbilicus. ( 2 ) TWO gunshots 1/10 x 1/10 x skin deep on the right side cheek, about 1. 1/2 away to the right side angle of the mouth ( 3 ) GUNSHOT wound 3/1o" x 1/1o" x skin deep on the front aspect right upper arm 41/211 above the right elbow joint. ( 2 ) TWO gunshots 1/10 x 1/10 x skin deep on the right side cheek, about 1. 1/2 away to the right side angle of the mouth ( 3 ) GUNSHOT wound 3/1o" x 1/1o" x skin deep on the front aspect right upper arm 41/211 above the right elbow joint. ( 4 ) GUN shot wound 2/10 x 1/10 x skin deep on the back aspect right upper arm about 7 above the right elbow joint ( 5 ) ABRASION 5/1o" x 1/lo on the back of right face arm 2 above right elbow joint. All the injuries were simple in nature. Injuries nos. 1, 2, 3 and 4 were caused by the firearm fired. (shot) from distance. Injury no. 5 was caused by friction against hard object. Duration was fresh. Vide injury report Ext. Ka 3, the interred got X-ray examination of his injuries done in Shahjahanpur. 5. First Information Report Ex. Ka. 2 was drawn on the basis of the report by Head Constable Ram Krishna. Investigator Vikram Lal visited the scene of occurrence and seized blood stained earth and pellets from the roof. In presence of witnesses, he prepared memos Exts. Ka 4 and Ka 5, Sri Santosh Kumar, Sub Inspector was also present then. Site plea Ext. Ka 6 was prepared on the spot and on completion of investigation, charge-sheet Ext. Ka 7 was submitted against the appellants. ( 6 ) APPELLANTS pleaded not guilty to the charge drawn against them under Section 307 read with Section 34 of Indian Penal Code. ( 7 ) PROSECUTION in support of their case examined only two witnesses, namely, Ram Niwas (P. W. 1) and Banwari Lal (P. W. 2 ). ( 8 ) RAM Niwas (P. W. 1) testified that the appellants armed with guns arrived abusing him while he was sitting on the platform. He became apprehensive and bolted his door and reached over his roof. However, he was made the target and sustained bleeding injuries from pellets. He did not inform his father to bring their licensed gun; Banwari Lal etc witnessed the occurrence appellants decamped. ( 9 ) BANWARI lal (P. W. 2) testified that at about 4. 00 to 4. 30 P. M. , he reached the spot from his house on that evening and found Ram Niwas being fired at. He did not inform his father to bring their licensed gun; Banwari Lal etc witnessed the occurrence appellants decamped. ( 9 ) BANWARI lal (P. W. 2) testified that at about 4. 00 to 4. 30 P. M. , he reached the spot from his house on that evening and found Ram Niwas being fired at. He denied the suggestion that they were collaterals, he also denied the suggestion that Ram Niwas and his Son were married in the same family. However, he conceded that his brother Shama Charan litigated about holding with the appellants prior to the occurrence. ( 10 ) APPELLANTS in their statements denied their participation in the occurrence and alleged their implication to ill-will. ( 11 ) NO other witness has been examined in this case a the gelluiness of Exts 1 to 8 was not disputed on behalf appellants by their learned Advocate. ( 12 ) LEARNED trial Judge believed the prosecution witnesses, viz. P. Ws 1 and 2. ( 13 ) THE observation made by the learned trial Judge in his judgment at pages 4 is as under: So far as the offence committed by the accused is concerned, I am not inclined to hold the accused guilty of the offence punishable u/s 307 I. P. C. They fired upon the victim from a distance of 40 paces and it would be deemed that they never intended murdering the victim from that distance. The injuries sustained by the victim have been pronounced to be simple by the medical officer. The accused must, therefore, be found guilty of the offence punishable u/s 324/34 I. P0 c. ( 14 ) FOLLOWING observation was further made by him on the question of sentence: On the question of sentence, I am inclined to take a lenient view. The parties belong to the same village and if the accused are sent to jail, the animosity is bound to increase. In view of the simple injuries sustained by the victim. I am of the view that a fine of Rs. 250/- each will meet the ends of justice. ( 15 ) IN the result the impugned order was drawn. ( 16 ) I have heard learned counsel for parties and perused the record. In view of the simple injuries sustained by the victim. I am of the view that a fine of Rs. 250/- each will meet the ends of justice. ( 15 ) IN the result the impugned order was drawn. ( 16 ) I have heard learned counsel for parties and perused the record. The appeal is allowed for the following reasons: ( 17 ) ALL the eye witnesses mentioned in the First Information Report as well-as on the back of charge-sheet as given above, were withheld. Even Kripa Shankar informant father of injured and Head Constable Ram Krishna were not examined in the case. None came forward to prove the accuracy of the aforesaid documents and thus the case was disposed of in a summary fashion. ( 18 ) AT the very outset, I would like to observe that the sentence awarded by learned trial Judge on flimsy reasons, quoted above, is grossly inadequate. It is simply a mockery of the rule of law that a trial under Section 307 read with Section 34 of Indian Penal Code Should be disposed of in such summary fashion and the appellants if guilty, succeeded in escaping simply with a exemplary fine of Rs. 250/- each. ( 19 ) I have detailed above the reasons given by the learned trial Judge to record the conviction under Section 324 read with Section 34 of Indian Penal Code that the shot was fired at from a distance of 40 paces. They did not intend to murder the victim; victim sustained simple injuries. ( 20 ) THE distance of 40 paces amongst the assailants and injured could have been proved by P. Ws. 1 and 2 only who testified that it was an attempt made on the life of Ram Niwas from close quarters by a group of four gunners who fired sheets with a murderous intent. Investigator who could have proved the accuracy of site plan was not examined as formal proof of the same was dispensed with, under Section 294 (1) of Code of Criminal Procedure. ( 21 ) THE accuracy of distance of 40 steps in that site plan could have been proved only by investigator who had prepared the same. The mere fact that formal proof of site plan had been dispensed with did not amount to the admission of accuracy of distance. ( 21 ) THE accuracy of distance of 40 steps in that site plan could have been proved only by investigator who had prepared the same. The mere fact that formal proof of site plan had been dispensed with did not amount to the admission of accuracy of distance. Under Section 83 of Indian Evidence Act, prosecution was bound to prove the accuracy of that site plan. That bas not been done In this case. No marks or cartridges etc were found there. ( 22 ) MOREOVER, non-production of doctor in this case has materially prejudiced the appellants as it is not possible to hold by a mere look at the injury report that the injures sustained by victim would have been caused by shots fired by all four gunners and was not the result of two shots or so. Under such circumstances, the medical evidence on record even if looked into, could not establish the participation of all the appellants in this murderous assault. If learned counsel for parties were slack in the discharge of their duty the court was bound to can the doctor and investigator and examined them in the interest of justice under Section 394 (3) of Code of Criminal Procedure. In the absence or legal evidence about distance aforesaid and the statement of doctor, it was not possible to hold that the offence did not transcend the domain of Section 324 read with Section 34 of Indian Penal Code. Such short cut by criminal courts, entrusted with the task of administration of justice has to be disap-proved. ( 23 ) I would have remanded the case to the learned trial Judge but for the simple reason that remand entails unnecessarily wastage of time and money of State and the incident took place on 5. 3. 1976 and the appellants had to stand a protracted criminal proceeding. Even on merits, it has been shown above that P. Ws 1 and 2 were unreliable about the number of assailants and the prosecution version. It is improbable to held that injured could not have called to aid Kripa Shanker, his father who had a licensed gun with him, to repel the aggression in that parilous. Similarly, situatior Banwari Lal (P. W. 2) had ill-will with the appellants on account of their litigation with Shyama Charan about holding prior to the occurrence. It is improbable to held that injured could not have called to aid Kripa Shanker, his father who had a licensed gun with him, to repel the aggression in that parilous. Similarly, situatior Banwari Lal (P. W. 2) had ill-will with the appellants on account of their litigation with Shyama Charan about holding prior to the occurrence. Even if he had no soft corner for Ram Niwas on account of wives of Ram Niwas and his son, who are married in the same family. Yet his testimony about the version of occurrence, as laid in First Information Report is inconsistent and unreliable. It was not laid in the report that the shots were fired from a distance of forty steps on Ram Niwas. Similarly, it was not laid in. the report that Ram Niwas went upstairs. Ram Deo and other eye witnesses, namely, Prem Chand and Babu Ram, who were eye witnesses of the occurrence, were deliberately with held It was the bounded duty of the prosecution to examine their independent witnesses particularly when no allegation was made against them that if produced, they would not have spoken the truth. So not only an adverse inference arose against the prosecution case from their non-production in view of illustration (g) to Section 114 of Indian Evidence Act but this circumstance casts a serious reflection on the fairness of the trial vide Habeeb Mohammad v. State. ( 24 ) THE conviction recorded on the partial testimony of two P. Ws and with holding of Kripa Shanker informant as well as the investigator has materially prejudiced the appellants and so the conviction recorded by learned trial Judge cannot stand vide Narain and others v. State of Punjab. ( 25 ) PROSECUTION cannot be given a fresh chance to catch up the lacuna now by a remand order. ( 26 ) IN the result, the appeal is allowed. The conviction and sentence recorded by learned trial Judge are set aside and the appellants are acquitted herewith. Bonds, about payment of fine, furnished by them, are discharged Appeal allowed .