JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 11.5.1993 passed by learned Chief Judicial Magistrate, Sirohi in Criminal Case No. 267/88 by which the learned Chief Judicial Magistrate, Sirohi acquitted the accused-respondent-Kupa for offence under section 326 IPC and also for offence under sections 3/25 & 3/27 of the Arms Act, 1959. 2. It arises in the following circumstances : (i) On 18.8.1986 at about 7.30 p.m., PW-8 Kira gave an oral report to the Police Abu Road, Distt. Sirohi stating that at about 11-12 noon on that day, he and his brother Ana Ram PW-2 and nephew and son-in-law of his elder brother Mela PW-4 were fencing on his field. At about 1.00 p.m., the accused-respondent came there having a gun and fired gun shot on PW-2 Ana Ram from back side and at that time, PW-2 Ana Ram was bringing thorn fencing at about 100 feet away from the accused-respondent. It is further stated that gun shot which was fired by the accused-respondent caused injury on the right leg of PW-2 Ana Ram (Ania) and it was fired with an intention to kill him. When PW-8 Kira and others tried to catch hold accused-respondent, he threatened to shoot and thus, they got feared and thereafter accused-respondent ran away. It is also stated in the report that Rupa was uncle of accused respondent who committed suicide in the front of house of PW-2 Ania and for that reason, the accused-respondent was having enmity and wanted to kill PW-2 Ania. (ii) On this report, the police chalked out a FIR Ex.P /8 and started investigation. (iii) During investigation, PW-2 Ania was got medically examined by PW-6 Dr. Abdul Hamid and as per the statement of doctor and injury report Ex.P/6; there was one gun shot injury on the right leg of PW- 2 Ania and there was also a chip fracture. (iv) During investigation, the accused-respondent was arrested on 27.8.1986 through Ex.P/3 and he gave information Ex.P/12 to the effect that he could get recovered the gun and in consequence of that information, in presence of PW-5 Lokiya and PW-9 Jora, he got recovered one gun through Ex.P /4. 3. (iv) During investigation, the accused-respondent was arrested on 27.8.1986 through Ex.P/3 and he gave information Ex.P/12 to the effect that he could get recovered the gun and in consequence of that information, in presence of PW-5 Lokiya and PW-9 Jora, he got recovered one gun through Ex.P /4. 3. The learned Chief Judicial Magistrate, Sirohi on 12.1.1989 framed charges for offence under section 326 IPC and Section 3/25 and 3/27 of the Arms Act against the accused-respondent who pleaded not guilty and claimed trial. 4. During trial, 13 witnesses were produced on behalf of the prosecution and statement of accused was recorded under section 313 Cr.P.C. No evidence was led in defence. 5. After conclusion of the trial, the learned Magistrate vide his judgment and order dated 11.5.1993 acquitted the accused-respondent of all the charges framed against him inter alia holding that : (i) Since on the spot there were other independent witnesses, they have not been produced and thus, this aspect has affected the prosecution case: (ii) PW-8 Kira in his cross-examination has admitted that there was enmity between him and accused-respondent and thus, the case of prosecution was not held to be proved. (iii) The witnesses PW-2 Ania, PW-3 Kana and PW-8 Kira are interested one and relative witnesses and no reliance can be placed upon them and thus, acquitted the accused-respondent of all the charges. 6. Aggrieved from the said judgment and order dated 11.5.1993, this appeal has been preferred by the State. 7. In this appeal, it has been argued on behalf of the State that : "The approach of the learned trial Magistrate was wrong one as the witnesses for occurrence though may be relative one, have clearly stated that gun shot was fired by the accused-respondents on the person of PW-2 Ania and thus, statement of PW-2 Ania gets corroboration from the medical evidence and hence the reasoning which has been assigned by the learned Magistrate in acquitting the accused-respondent is palpably wrong one and should be set aside and the accused-respondent should be convicted. 8. On the other hand, the learned counsel for the respondent opposed the arguments raised by the learned counsel for the appellant and submits that judgment passed by the learned trial Magistrate is based on correct appreciation of evidence and does not call for interference by this Court. 9. I have heard both the parties. 10. 8. On the other hand, the learned counsel for the respondent opposed the arguments raised by the learned counsel for the appellant and submits that judgment passed by the learned trial Magistrate is based on correct appreciation of evidence and does not call for interference by this Court. 9. I have heard both the parties. 10. Before proceeding further medical evidence in the present case which is found in the statement of PW-6 Dr. Abdul Hamid has to be seen. 11. PW-6 Dr. Abdul Hamid has stated that on 18.8.1986, he was medical jurist in the Government Hospital, Sirohi and on that day, he examined PW-2 Ania and found following injury on his person : "Gun shot injury on Rt. calf leg. 1. Lacerated wound present over upper part of calf oedern over calf size 1.5 x 1 cm x Muscle deep. Distil pulsation Normal. No active bleeding. No Charcoal blackish present over wound. This is only wound of entrance. No wound of exit seen." 12. This doctor has further stated that after seeking the x-ray plates, he came to the conclusion that there was chip fracture on right knee just behind medical condyl. Thus, from the statements of PW-6 Dr. Abdul Hamid, it is well proved that injury No. 1 was grievous one and the same was fire arm injury. 13. Before proceeding further, it may be stated here that the present incident took place at about 1 noon on 18.8.1986 and report was lodged by PW-8 Kira in the evening. Thus, there is no delay in lodging the report. 14. As per the report Ex.P / 8, at the time of occurrence, apart from the injured PW-2 Ania, PW-8 Kira, PW-3 Kana and PW-4 Mela were also there. PW-2 Ania who is injured in this case has dearly stated that on the day of occurrence, PW-8 Kira, PW-3 Kana and PW-4 Mela were fencing on his field. At that time, the accused-respondent came with a gun and he fired from a distance of 100 yards towards him which hit his right leg, upon which he fell down and he was taken to Hospital, Abu Road and from there is General Hospital, Sirohi. He has also assigned the cause of this incident stating that since uncle of accused-respondent had committed suicide in front of his house, therefore, he had enmity on that ground. He has also assigned the cause of this incident stating that since uncle of accused-respondent had committed suicide in front of his house, therefore, he had enmity on that ground. This witness has been cross-examined at length and nothing has come out which effects his testimony. 15. The statement of PW-2 Ania gets full corroboration with medical evidence as discussed above. Apart from that, the statement of PW- 2 Ania gets support from the statement of PW-3 Kana whose name is also mentioned in Ex.P/8. 16. No doubt PW-4, Mela, whose name is also mentioned in Ex.P /8 has been declared hostile, but his becoming hostile would not effect the prosecution case as the statement of PW-2 Ania gets corroboration from the statement of PW-3 Kana as well as from the statement of PW- 8 Kira which will be discussed hereinafter. 17. PW-8 Kira who is author of report Ex.P/8 has fully supported the case of prosecution. He has admitted following facts in the cross-examination :At the time of occurrence, in the nearby fields, other persons were also doing the job and the complainant party had enmity with the accused-respondent. 18. The learned trial Magistrate has taken into consideration that PW-2 Ania, PW-3 Kana and PW-8 Kira are interested and relative witnesses and since they had enmity with accused-respondent, thus, he did not believe their evidence. In my opinion, the approach of the learned Magistrate is totally wrong one and findings of acquittal cannot be sustained. 19. No doubt in the present case PW-2 Ania and PW-8 Kira are real brothers and PW-3 Kana is also close relative of PW-2 Ania. The witnesses who are close relatives in the circumstances of a case cannot be regarded as interested witness. The interested witnesses are not necessarily false witnesses though the fact that witness has personal interest or stake in the matter and must push the Court in this regard. 20. The evidence of such witnesses must be subjected to closure scrutiny. Simply because eye-witness happens to be brother or nephew of the injured or deceased as the case may be, his evidence cannot be discarded if his testimony is otherwise acceptable. The evidence of interested witnesses cannot be equated with that of tainted witnesses. 21. 20. The evidence of such witnesses must be subjected to closure scrutiny. Simply because eye-witness happens to be brother or nephew of the injured or deceased as the case may be, his evidence cannot be discarded if his testimony is otherwise acceptable. The evidence of interested witnesses cannot be equated with that of tainted witnesses. 21. The fact that the witnesses are inimically disposed towards the accused persons by itself cannot be a ground for total rejection of their evidence as held by Hon'ble Supreme Court in the case of Sadhu Singh v. State of Uttar Pradesh reported in AIR 1978 SC 1506 . 22. Keeping the above principle in mind, the learned trial Judge has committed miscarriage of justice by placing no reliance on statement of PW-2 Ania, PW-3 Kanna and PW-8 Kira when their evidence is fully supported by medical evidence and there is no delay in the present case in lodging the FIR. In these circumstances, the case of prosecution that the accused-respondent fired gun shot towards PW-2 Ania and caused gun shot injury on his right leg is well proved. 23. Since apart from the statement of PW-2 Ania, there are other two eye-witnesses in the present case. In these circumstances, if the persons who were working in the field have not been produced by the prosecution, it does not mean that the prosecution case should be held to be not proved. 24. Since the prosecution case is based on medical evidence as well as on the direct evidence, the evidence of seizure of weapon in the present case is of very little importance and the fact that the witnesses to recovery of Gun PW-5 Lokiya and PW-9 Jora have been declared hostile would not affect so far as charge for the offence under section 326 IPC is concerned. Thus, the case of prosecution for offence under section 326 IPC is well proved. 25. So far as charge for offence under section 3/25 & 3/27 of the Arms Act is concerned, the findings of the learned Magistrate by which the acquitted the accused-respondent are liable to be confirmed for the simple reason that both the witnesses to the Fard of recovery Ex.P/4, namely, PW-5 Lokiya and PW-9 Jora have been declared hostile and PW- 11 Radhe Shyang I.O. has clearly admitted that recovery was made from an open palce in a jungle. 26. 26. It may be stated here that power of High Court while hearing the appeal against acquittal is as wide as appeal against conviction. Since in the present case, the findings of acquittal for offence under section 326 IPC are not based on correct appreciation of evidence and there was manifestly error committed by the learned trial Magistrate, therefore, the findings of acquittal for offence under section 326 IPC are being interfered with and findings of acquittal recorded by the learned trial Magistrate are to be set aside and the accused-respondent is going to be convicted for offence under section 326 IPC. 27. On point of sentence, it may be stated that since the incident took place on 18.8.1986 and more than 14 years have passed, therefore, in awarding sentence for offence under section 326 IPC, a lenient view is being taken.For the aforesaid reasons, this appeal of State is partly allowed. The acquittal of accused-respondent-Kupa for offence under section 3/25 & 3/27 of the Arms Act is maintained, but his acquittal for offence under section 326 IPC is set aside and the judgment and order dated 11.5.1993 passed by the learned Chief Judicial Magistrate, Sirohi in so far as it relates to acquittal for offence under section 326 IPC are set aside and the accused-respondent-Kupa is convicted for offence under section 326 IPC and sentenced to six months' R.I. and a fine of Rs. 1,000 /- in default to further undergo 3 months' R.I. As per provisions of 'Sec. 428 Cr.P.C., the period of detention if any undergone by the accused-respondent-Kupa during investigation and trial shall be set off from the above sentence.Appeal partly allowed. *******