Judgment SOMESHWAR NATH PATHAK, J. 1. This appeal is directed against the judgment dated 13th August 1991, passed by Sri A.K. Verma, 6th Additional Sessions Judge, Arrah, in S.T. No. 195 of 1984, whereby and where- under, the appellants were convicted under Section 307/34 of the Indian Penal Code and were sentenced to undergo R.I. for seven years each. 2. The case of prosecution, as projected through the fardbeyan of the choukidar, Bachu Rai, which was recorded by S.I. Sri T.L. Srivastava on 25th March 1981 at 10.00 p.m. at Sriplapur Mela, was that the informant who was deputed on Mela duty reported to him at 10.00 p.m. that one Akshey Kumar of village Sripalpur had received fire-arm injuries, when he returned home from the Mela. He further learnt that his family members had carried him to Arrah Hospital on a Jeep. Akshay Kumar was having land dispute with his collateral Prabodh Kumar Dubey over which litigations were pending in the Courts. The concerned choukidar failed to give names of the assailants. Later, the names of the accused-appellants transpired from the so called fordbeyan of the injured, recorded by one A.S.I.R.B. Yadav of Pirbahore P.S., Patna, on 31st March 1981 at 6.00 p.m. Thereafter, the injured was referred by Arrah Hospital to P.M.C.H., Patna. It was also the case of the prosecution that the injured was unconscious on the date of occurrence and, therefore, he failed to give any statement. 3. The accused-appellants had taken the defence of false implication on account of enmity and bad-blood that had developed between the parties, admittedly collaterals, on account of court cases (civil suits and also criminal cases and Section 145, 107 Cr PC etc.). The specific suggestion that was given to PW 1 Akshay Kumar, the injured, was that he received gun-shot injuries while he was returning home from Mela by his enemies, who were annoyed with him on account of illegal collection of tolls from the traders and the merchants of the mela. 4. The prosecution has examined, in all, ten witnesses. PW 1 was Akshay Kumar, the injured himself who is the only eye witness to the occurrence. 4. The prosecution has examined, in all, ten witnesses. PW 1 was Akshay Kumar, the injured himself who is the only eye witness to the occurrence. PW 2 was a formal witness, who brought on the record the seizure-list (Ext-1), PW 3 was Kesho Singh who, according to the evidence of PW 1, had accompanied him on the Jeep when the former was returning from the Mela on 25th March 1981. This witness was declared hostile and cross -examined by the prosecution. I shall critically examine his evidence later. PW 4 Dr. Basant Kumar Sinha was the Doctor of P.M.C.H., Patna who brought the injury report, regarding injuries sustained by PW 1 (Ext-2) on record. PW 5 (wrongly numbered as PW 4) was also a formal witness who brought on the record the fardbeyan (Ext-4) of the choukidar. PW 6 (wrongly numbered as PW 5) was T.L. Srivastava, a police officer who had recorded the fardbeyan of the choukidar PW 8 (wrongly numbered as PW 7) Ram Chandra Prasad was also a lormal witness who brought on the record the entry in the S.O.D. Register No. 7 of P.M.C.H. dated 26th March 1981 (Ext-8). PW 8 (wrongly numbered as PW 7), Tarkeshwar Prasad Sah, was another formal witness who brought on the record the complaint petition (Ext-9) and PW 10 (wrongly numbered as PW 9) was Tungnath Prasad who was also a formal witness who brought on the record the destruction report of S.D. entry dated 8th August 1982 (wrongly numbered as Ext-5). He also brought on the record the true copy of the S.D. Entry (wrong numbered as Ext-6). He further proved one application put in by one Sri A.K. Jain (wrongly numbered as Ext-7). 5. From the aforesaid description of the PWs examined in this case, it is apparent that so far the alleged occurrence in particular is concerned, the sole testimony of PW 1 is that on 25th March, 1981, he was returning from the Mela on a Jeep in the company of Kesho Singh (PW 3) and others and he parked the Jeep outside the boundary of his gate. From the gate, he proceeded towards his north facing house. The main exit and entry door of his house was at a distance of 50 steps from the place where the Jeep was parked. From the gate, he proceeded towards his north facing house. The main exit and entry door of his house was at a distance of 50 steps from the place where the Jeep was parked. When he had proceeded 40 paces (steps) ahead of the Jeep, he heard some humming sound and then he flashed his torch towards his left. He found there appellant Prabodh Kumar Dubey and his son Ajit Kumar Dubey as also Bindeshwari Singh (appellant No. 3). Ajit Kumar Dubey was armed with a gun. Prabodh Kumar Dubey ordered his son to fire and kill the informant. Thereafter Ajit Kumar Dubey (appellant No. 2) fired a shot causing injury upon the back of right scapula of the victim. At the time of firing, PW 1 was standing having his face towards the eastern direction. After receiving gunshot, he (PW 1) rushed towards his darwaja calling out his father. The moment he had rushed inside the verandah, he was taken in grip to prevent his imbalance by his father and his sister. He tell down on the cot inside the verandah He fell unconscious. Thereafter, perhaps, he was carried to Arrah Hospital first and then to P.M.C.H., Patna. 6. Now 1 shall advert to the specific points of criticism advanced by the appellants lawyer, regarding the evidence of PW 1 with reference to the circumstances and the oral statements of other PWs in order to find out whether the prosecution has been able to prove the allegation that the appellants after having formed a common intention, caused the alleged injuries upon PW 1. 7. In this connection, the first aspect of the case that was pointed out by the appellants lawyer was that admittedly, the injured was fired at by Ajit Kumar Dubey from his left and, therefore, the injury which the victim receive, would be on the left scapular region, of course, on the back of the same. But it is to be noted that PW 1 said that when he was being fired at, the assailant was north-west from himself. In this connection, the injuries which were sustained by PW 1, as per the evidence of PW 4, nine penetrating wounds of less that 1/2" diameter over the back in the inter scapular region (8 on the right of the mid line and one on the left of the mid line) gain significance. In this connection, the injuries which were sustained by PW 1, as per the evidence of PW 4, nine penetrating wounds of less that 1/2" diameter over the back in the inter scapular region (8 on the right of the mid line and one on the left of the mid line) gain significance. Admittedly, therefore, the in-juriea were of course on the back of the scapular region of the victim arid the location of eight injuries on the right and on the left would be explained by the angle from which the assailant fired upon the victim and especially when the appellant was stationed north-west from the victim. This will show that 8 injuries on the right and one on ihe left, cannot be ruled out. At this stage, this much upon the injuries would suffice. I shall comment upon the injuries sustained by the victim in a greater detail at a later stage. 8. The next criticism advanced against the prosecution evidence was that the articles seized by the I.O. from the P.O. was not exhibited in Court and so it was doubtful whether from the P.O., the I.O. had seized any blood-stained material or any "chhara" (pellet). I find that Ext-1 was the seizure-list. The witnesses on the seizure-list were not examined, because as per the evidence of PW 1, they were already dead. Paragraph 5 of the evidence of PW 1 was clear to the effect that the informant Bachu Rai and seizure-list witnesses, namely. Ram Kumar and Dhananjay were dead. The seizure-list (Ext-1) shows that blood stained floor pieces and some blood stained rope pieces along with one "chhard (pellet) were recovered from the P.O. on 26th March 1981 by the I.O. Of course, it was sheer laches on the part of prosecution machinery in not producing the seized materials in Court; but the seizure can be proved by collateral evidence, such as, the seizure-list and the objective evidence of the I.O. himself. The I.O. when he was examined in Court clearly admitted that he had seized materials as contained in the seizure-list. The place of seizure has been mentioned as "from the P.O.". So non-production of seized materials in themselves and in isolation, cannot lead to the inference that no occurrence, as alleged by the informant, had taken place. 9. The I.O. when he was examined in Court clearly admitted that he had seized materials as contained in the seizure-list. The place of seizure has been mentioned as "from the P.O.". So non-production of seized materials in themselves and in isolation, cannot lead to the inference that no occurrence, as alleged by the informant, had taken place. 9. In this connection, the evidence of I.O. was also referred to where this witness failed to say that he had found any trail of blood right from the place where the injured was fired at upto the verandah of his house. In this connection, I find that the case diary maintained by the I.O. from page 1 to page 16 was exhibited (Ext-3). In view of the fact that the case diary was exhibited as also in view of legal position that the- Court can peruse the case diary to find out the truth, I am constrained to refer to the description of the P.O. at para 6 of the case diary, as penned by the I.O. He inspected the P.O. land pointed out by the father of PW 1. Besides describing the situation of the house of PW 1 as also the accused appellants, etc.. the I.O. also refers to the place where PW 1 was fired at. Towards the closing lines of paragraph 8 at page 9, the I.O. has clearly stated that at the P.O., in the baithaka, (the northern verandah of Akshay Kumar) on the cot, he had found blood as also one "chhara" (pellet) at the P.O. So when the I.O. omitted to mentioned in his evidence about the blood at the place where the injured was fired at, he should have been declared hostile by the prosecution and his attention should have been drawn towards his specific statement, which I have mentioned above. It, therefore, follows that the prosecution lawyer was inept in leading the examination-in-chief of this witness. 10. It was next submitted by the appellants lawyer that the I.O. visited the P.O. village on 26th March 1981 around 8.00-8.30 a.m., but he found no mark of Jeep byres either at the gate or at any place on the road from his house to Arrah Hospital. 10. It was next submitted by the appellants lawyer that the I.O. visited the P.O. village on 26th March 1981 around 8.00-8.30 a.m., but he found no mark of Jeep byres either at the gate or at any place on the road from his house to Arrah Hospital. In this connection, I am of the opinion that the occurrence took place on 25th March 1981 at about 8.00 p.m. and immediately after the alleged occurrence, the injured was carried to Arrah Hospital on the same Jeep; whereas the I.O. visited the P.O. house on the next date at 8.00 to 8.30 p.m. and during the course of which, chances of obliteration of signs of Jeep tyres were rated high and it would also depend on the nature of the road (pitched or kuchha). This aspect of the case was, therefore, not so significant as to belie that story of alleged occurrence, as propounded by the prosecution. 11. Now I shall refer to certain circumstances unleashed from the evidence of PWs on the basis of which strong case of defence was built up and it was suggested by the appellants lawyers that PW 1 sustained injuries somewhere else, perhaps, midway in the orchard, where he was returning home from the Mela. In this connection, admittedly, the place where the Mela was being held was at a distance of 1 km. from the village of the injured, as it was admitted by him at paragraph 13. The evidence of Triloki Lal Srivastava was referred to where he said that on 25th March 1981, he was officer-in-charge of Barhara P.S. He was doing Mela duty on this date at Sriplapur. He heard the sound of firing at 8.00 p.m. from the eastern direction and then he headed towards the same in the company of armed guards. On the way in the orchard, he learnt that Akshay Kumar Dubey had received gun-shot injury. He rushed to his house and found him (PW 1) in injured condition. The choukidor (informant) had also accompanied him. This witness sent the injured to the Hospital. He record the fardbeyan of. the choukidor and dispatched the fardbeyan to Barhara P.S. This witness in the chief failed to mention as to who told him that the injured had received gun-shot injury in the orchard. The choukidor (informant) had also accompanied him. This witness sent the injured to the Hospital. He record the fardbeyan of. the choukidor and dispatched the fardbeyan to Barhara P.S. This witness in the chief failed to mention as to who told him that the injured had received gun-shot injury in the orchard. In his cross-examination by the accused, he had made certain statements which would also make him to be branded as hostile witness; but the prosecution lawyer failed in his duty and allowed him to go hewer in damaging the prosecution case, The statements made in cross-examination by this witness would clearly indicate that he was making hostile statements in chief, although his objective findings were contrarywise. At para 3, he stated that in the Mela itself, he came to know that Akshay Kumar had sustained gun-shot injury and he had gone home. Then he adds another sentence that the place from where firing was resorted to, was described to be the orchard; but who told him that the firing was made in the orchard, has not been stated by this witness in his evidence. He adds further that Sripalpur orchard was in between the place of Mela and Sriplapur village, In the Mela, some unsocial elements also roam. But the statements made by this witness to the I.O., as contained in the case diary, at paragraph-4, pointed out something else, other than what he had stated in Court. I have been again prompted by sense of justice to look into the case diary to find out as to what was the actual statement of PW T.L. Srivastava made to the I.O. At Para 4 the I.O. has mentioned the statements made by T.L. Srivastava, where there is a clear statement that when this witness went to the house of PW 1, he learnt that Akshay Kumar Dubey was fired at near the door of his house. He further stated that Akshay Kumar Dubey was unconscious and he had received multiple injuries. His wife and others carried the injured to Arrah Hospital on a Jeep. This witness further stated to the I.O. that he had found that Akshay Kumar Dubey was fully unconscious and his relations at home failed to make any statement when the fardbeyan of the choukidor was being recorded: The choukidor had given the statement that there was dispute between the parties. This witness further stated to the I.O. that he had found that Akshay Kumar Dubey was fully unconscious and his relations at home failed to make any statement when the fardbeyan of the choukidor was being recorded: The choukidor had given the statement that there was dispute between the parties. I have already stated above that in chief this witness had stated that he had sent the injured to Arrah Hospital. This witness was also required to be declared hostile by the prosecution lawyer and his attention should have been drawn towards his purported statements made to the I.O. The prosecution lawyer again failed in his duty and examined this witness in a clumsy and non-chalant fashion which damaged the prosecution case. The statement of Triloki Nath made in Court that he heard the sound of firing in the Mela itself and that he learnt that the injured was subjected to firing in Sripalpur orchard nowhere finds mention in his statements, made to the I.O. recorded at para 4 of the case diary (Ext-3). The aforesaid discussion will meet the criticism of the appellants lawyer that the injured was not at all unconscious when he had received injury and was sent to Arrah Hospital or from there, to P.M.C.H., Patna. The objective evidence of T.L. Srivastava that he had found the injured fully unconscious would lend support to the evidence of PW 1 that he was unconscious and, therefore, his statement was recorded by the Pirbahore Police on the 31st March 1981 when, for the first time, the names of the accused-appellants appeared in his statement. The I.O. had received the statement of the injured from Pirbahore Police on 6th April 1981, when he learnt the names of accused-appellants and started the investigation to find out whether the appellants had committed the alleged occurrence. This is at Para 9 of his evidence. I shall examine the criticism of the appellants lawyer regarding consciousness and unconsciousness of the injured, further at later stage, while scrutinising the evidence of PW 3, the Doctor. 12. The appellants lawyers contention that from the evidence of T.L. Srivastava, it transpired that the injured had received injury in the orchard, while returning from the Mela at the hands of some unsocial elements or some enemies on account of toll collection in the Mela does not get support from the evidence of T.L Srivastava. 12. The appellants lawyers contention that from the evidence of T.L. Srivastava, it transpired that the injured had received injury in the orchard, while returning from the Mela at the hands of some unsocial elements or some enemies on account of toll collection in the Mela does not get support from the evidence of T.L Srivastava. In this connection, I shall refer to the evidence of PW 3 Kesho Singh as well. This witness was declared hostile by the prosecution. This witness, according to PW 1, had accompanied him on the Jeep from the Mela and he (Kesho Singh) was behind him (PW 1). However, Kesho Singh said that, of course, he was accompanying the injured in the Mela on 25th March 1981 on the Jeep, but on the way, injured alighted from the Jeep for urination and then this witness heard a sound of gun-shot firing. He saw that PW 1 had received gun-shot injury. He denied his purported statements made to the Police that when he and PW 1 reached his (PW 41s) home, PW 1 headed towards his Darwaja and he was fired at near his Darwaja by Ajit Kumar Dubey (appellant No. 2). He also denied that he had seen all the appellants instigating Ajit Kumar Dubey to fire at PW 1. Now the question is whether PW Kesho Singh was making a true story of the prosecution case, or he had, of course, been gained over by the appellants, and, therefore, made a retrograde statement in order to damage the prosecution case and in order to suppress the truth. This witness has, however, admitted in his cross- examination by the accused that after the injured was fired at, he had carried him to the Hospital on a Jeep itself. He also accompanied the injured to P.M.C.H., Patna on a Jeep. However, if the injured was fired at in the orchard at a distance of half Kilometer from home of the P.O. village and PW 2 Kesho Singh was very much in the company of the injured at the time of occurrence, the natural conduct on the part of Kesho Singh would be to take the injured to the Hospital from the orchard itself, instead of carrying him to his home first and then to the Hospital at Arrah and Patna. This inference is also strengthened by the fact that T.L. Srivastava had clearly stated that when he went to the house of injured, he had found him unconscious and he had got him dispatched to the Hospital. PW 2 Kesho Singh does not in his evidence say that when he was carrying the injured to the Hospital, T.L, Srivastava was also there. This circumstance will clearly point out to the fact that Kesho Singh was suppressing the truth and he was making false statement having been gained over by the accused-appellants. This witness had tried to damage the prosecution case by stating that the injured had some altercation with some persons in the Mela and so there was tension between himself and the unsocial elements of Mela. PW 1 had said in his evidence that he was given the job of collection of tolls in the Mela and he, in turn, had entrusted this task to Kesho Singh and others, ft was pointed out by the appellantss lawyer that Kesho Singh along with appellants family was prosecuted by some persons and, hence, it was not probable that when Kesho Singh was aligned with the accused-appellants, he would suddenly become friendly to PW 1. So far this inference is concerned, it is misdirected and shall be self-defeating. The evidence of Kesho Singh was clear and positive to the effect that he was accompanying the injured from the Mela and, therefore, if the evidence of Kesho Singh was to be interpreted in favour of the accused-appellants, it had to be interpreted in favour of prosecution as well in its total effect. Alignment of Kesho Singh with the collateral of the injured may not necessarily indicate that he would not be aligned with the victim at any other point of time. 13. Now I shall advert to the evidence of PW Basant Kumar Dubey, the Doctor of P.M.C.H., Patna. This witness stated that on 26th March 1981, he was posted as R.S.O., Patna. At 4.00 a.m. on the same day, he examined injured Akshay Kumar (PW 1) and found nine penetrating injuries of less than half inch diameter over back in the inter scapular region (8 on the right of the midline and one on the left). This witness stated that on 26th March 1981, he was posted as R.S.O., Patna. At 4.00 a.m. on the same day, he examined injured Akshay Kumar (PW 1) and found nine penetrating injuries of less than half inch diameter over back in the inter scapular region (8 on the right of the midline and one on the left). I have already explained how those injuries can be caused on the victim who was fired at from the left side by the appellant No. 2, Ajit Dubey. Injury No. 2 was one echymosis 2" in diameter on the right from chest, one inch below the right clavicle. The 3rd injury was a swelling with surgical emphyseme of 8" in diameter over the right front chest around the ecchymosis. The forth injury was a swelling 10" x 8" over the upper back, around the wound of entry. According to this Doctor, injury No. 1 was caused by firearm and the rest were caused by blunt substance. X-ray plate No. 4583 showed pellet in the chest wall as also fracture of 3rd right rib and right clavicle. There was partial collapse of lungs due to injury No. 1. Injury No. 1 was grievous and the rest were simple. There age of injuries was within 24 hours. 14. The appellants lawyer vigorously argued that the injured did not receive gunshot injury at his house as alleged by him because admittedly, according to his own evidence, he had heard the sound of only one gun-shot and, therefore, there was no question of his receiving injuries on the front of his chest which was caused by hard and blunt substance. In this connection, I am to opine that as per Doctors evidence, partial collapse of lungs was due to injury No. 1 and according to the X-ray report, perhaps, pellet was found embedded in the chest. Ecchymosis is discoloration on account of bleeding under the skin. So when the Doctor said that injury Nos. 2 and 3, which were ecchymosis, and swelling around the same may be caused by hard and blunt substance, this was his misguided opinion; because he had admitted in his cross-examination by the accused that he had not mentioned as to by what weapon the front injury was caused. So his opinion was, perhaps, misplaced and prompted by misconception. 2 and 3, which were ecchymosis, and swelling around the same may be caused by hard and blunt substance, this was his misguided opinion; because he had admitted in his cross-examination by the accused that he had not mentioned as to by what weapon the front injury was caused. So his opinion was, perhaps, misplaced and prompted by misconception. The 4th injury found by the Doctor was swelling around the wound of entry which was, perhaps, over injury No. 1. From the aforesaid, it would follow that pellet injury caused on the back of scapular region of the victim must have been caused by pellets which would have entered and pierced the body getting embedded inside the chest cavity which would naturally cause ecchymosis etc. appearing on the front portion of the chest. That was also a cause for collection of gas etc. in the lungs. The same would also case fracture of rib which the Doctor has mentioned. So all the injuries were well explained by the gun- shot injuries received by the victim who had said in his evidence that the accused had wielded the doublebarrel gun. 15. The evidence of PW 4 was further criticised on the ground that the injury report (Ext-2) which he brought on the record of the case, was, perhaps, neither prepared by him nor it was a genuine injury report. In this connection, the statement of PW 4 at para 3 was referred to wherein it was statedThis is the entry in the injury Register which is in my pen and there appears my signature. It is the carbon copy of this entry which was prepared by mechanical process at the same time (marked Ext-2)". The aforesaid statements of the Doctor were compared with the concerned entry in the S.O.D. Book which was brought on the record of this case by a formal witness and on whose testimony, the concerned entry was exhibited as Ext-8. It was submitted by the appellants lawyer that Ext-8 was admittedly not written by PW 4 and, therefore, the statements of PW 4 referring to the entry in the S.O.D. Register was a false statement. It was submitted by the appellants lawyer that Ext-8 was admittedly not written by PW 4 and, therefore, the statements of PW 4 referring to the entry in the S.O.D. Register was a false statement. In this connection, I am of the opinion that, perhaps, the S.O.D. Register itself was not before PW 4, otherwise when he stated that this entry was made by him, that entry would have been exhibited on that very date; but admittedly, it was exhibited later by a formal witness to whom I have already referred in the preceding paragraphs. So PW 4 was naturally referring to Ext-2 which was penned by him and the injuries mentioned therein were copied from the injury Register of the Hospital. This would be the only interpretation from the aforesaid statement of PW 4. As far as the concerned entry (Ext-8) in the S.O.D. Register of the Hospital is concerned, I find that this entry was at page 60 of the Book. PW Ram Chandra Prasad had stated in his evidence that the aforesaid entry at page 60 of the S.O.D. Book was written by Dr. Ramashish. Of course, PW 4 admitted that it was he who had treated PW 1 on 26th March, 1981, but that in itself will not indicate that he would himself write the injuries which he found on the body of the injured. The concerned entry may be made in the Register by any other Doctor. So I do not think, the above discrepancy in the evidence of PW 4 referring to the concerned S.O.D. entry (Ext-8) would show that the injured was not brought to P.M.C.H., Patna, on the alleged date and that injuries, as mentioned in S.O.D. Register were not found on his person. Again the prosecution case about the unconsciousness of PW 1 was assailed on the ground that the X-ray plate of some another person was tagged and attached in the S.O.D. Entry, in order to prove that PW 1 was unconscious for 4-5 days, so that he was unable to give statements before 31.3.1981. In this connection, it was submitted that the X-ray plate number was supplemented in the S.O.D. Book as an afterthought, especially because at page 59 of the S.O.D. Book, there is over-writing on the Number. In this connection, it was submitted that the X-ray plate number was supplemented in the S.O.D. Book as an afterthought, especially because at page 59 of the S.O.D. Book, there is over-writing on the Number. I find that the S.O.D. Book at page 59 has reference to patient Akshay Kumar Dubey and patient Number has been given as ERS 1937. On this very page, there is entry regarding patient No. ERS 1936. It is quite natural, therefore, that patient number of PW 1 would be 1937 of 25th March, 1981. On this page, the X-ray plate number, of course, has some overwriting on the figure-"83". perhaps, earlier figure was "4538" which was overwritten as "4583". But at page 60, X-ray plate Number is perfectly clear as XPN. 4583. Entry at page 59 is dated 25th March 1981, and the ink in the entry at page 60 is the same and similar and, therefore, it does not appear that the entries at page Nos. 59 and 60 were manufactured and manipulated later on an afterthought. That will explain the fact that entry on page Nos. 59 and 60 were in continuation and, therefore, the closing entry of 26th March 1981 was signed, whereas entry on 25th . March 1981 remained unsigned. PW 4 had said that he was unaware whether the patient was unconscious when he was brought to the Hospital and normally when the patient is unconscious, that fact is noted to the concerned entry against the patient. Of course, in the injury report, issued by PW 4 (Ext-2), there is no reference regarding the restlessness of the injured, but entry on page No. 59 clearly mentions the fact that, "the patient was restless, semiconscious". Moreover, as I have already stated above, PW T.L. Srivastava had already admitted in his statements before the Police that the injured was fully unconscious. So I do hot think the X-ray plate number and the entry regarding semiconscious or unconscious of the injured was manipulated and inserted in the concerned entry on an afterthought and on account of collusion of the prosecution party with the Hospital staff or a Doctor. 16. The above discussion on the entire gamut of evidence and the circumstances would establish the allegations of the prosecution that the appellants were responsible for the murderous assault upon PW 1 at his house on the alleged date and time. 16. The above discussion on the entire gamut of evidence and the circumstances would establish the allegations of the prosecution that the appellants were responsible for the murderous assault upon PW 1 at his house on the alleged date and time. Now I shall refer to certain other important points raised by the appellants lawyer with respect to the culpability of the appellants. 17. It was submitted that appellant No. 3 Bindeshwari Singh had no connection with the family of the injured and so he had no cause for participating in the alleged assault upon the injured. Moreover, one of the nephews of Bindeshwari Singh had deposed against him and, therefore, he was falsely implicated. Of course, Bindeshwari Singh along with other appellants was convicted under Section 307/34 of the IPC and the cause of occurrence, as given in the prosecution case, was that on account of litigations and land dispute, appellant Prabodh Kumar Dubey and his son attempted to do away with the life of PW 1. The presence of Bindeshwari Singh was alleged by PW 1 and it was stated that he had also joined appellant Prabodh Kumar Dubey in instigating appellant, Ajit Kumar Dubey, to fire upon PW 1. On the aforesaid allegation, Bindeshwari Singh (appellant No. 3) was convicted and sentenced. I am of the opinion that the above allegation was contained in the statement of PW 1 only and in view of circumstances on the record, he had nothing to do with the family of PW 1 and his collaterals. I do no think the aforesaid solitary evidence was sufficient to establish the common intention of Bindeshwari Singh, bringing him within the mischief of Section 34 of the IPC. So I think, this appellant Bindeshwari Singh deserves acquittal, giving him benefit of doubt. 18. As far appellant Ajit Kumar Dubey is concerned, on his behalf it was submitted that on the date of occurrence, he was 14 years old and, thereforeminor. The Civil Surgeons report (Ext-A) was referred to and on the basis of this report, it was submitted that on the date of occurrence, Ajit Kumar Dubey was minor and, therefore, he cold not legitimately be convicted. It is to be noted that the report of the Civil Surgeon was obtained on 1st July 1980 before the alleged occurrence of this case. It is to be noted that the report of the Civil Surgeon was obtained on 1st July 1980 before the alleged occurrence of this case. When I put a query to the appellants lawyer as to what prompted the father of the appellant to obtain this report from the Civil Surgeon, the appellants lawyer replied that the appellant No. 1 Prabodh Kumar Dubey, lather of appellant No. 2, Ajit Kumar Dubey, had declared the age of his son in the School Register wrongly and, therefore, he wanted correction of the wrong entry regarding his age by a report from the Civil Surgeon, regarding his accused age. It was next submitted that at the time when the alleged occurrence took place, Ajit Kumar was a student of Matriculation. The trial Court disbelieved this report of the Civil Surgeon, because the Civil Surgeon himself was not examined. Whatever may be the reason of this disbelief by the trial Court, I am of the opinion that this report in itself was not to be relied upon, even otherwise. This is so because what actually was the age noted in the School Register as declared by appellant Prabodh Kumar Dubey was never disclosed in any evidence of the appellants during the course of trial in the lower Court. Ext-A shows that there was an application put in by Prabodh Kumar Dubey before the Civil. Surgeon on 17th May, 1980 and the copy of the report itself was forwarded to Prabodh Kumar Dubey under Memo No. 1809 dated 1st July 1980. I fail to understanding under what circumstances, the Civil Surgeon was entering into a correspondence with Prabodh Kumar Dubey which is not a normal practice of a Government Servant. It was none of the official business of the Civil Surgeon to enter into correspondence with a private person on an application preferred before him, that too, after one and a half month, after the application. From all circumstances, therefore, this report was, perhaps, a got- up one and appears to be ante-dated, just in order to bring on the record of the case some proof regarding minority of appellant Ajit Kumar. I am also unable to understand why the appellants failed to bring on the record of the case the actual age of appellant Ajit Kumar Dubey which was entered in the School Register. I am also unable to understand why the appellants failed to bring on the record of the case the actual age of appellant Ajit Kumar Dubey which was entered in the School Register. From all circumstances, therefore, Ext-A was rightly disbelieved by the trial Court, even though on some other grounds: 19. Another piece of, argument was advanced by the appellantss lawyer that when this appeal is being heard in this Court and the judgment is likely to be pronounced, the law relating to Juvenile Offenders has changed and now the age of minor has been fixed below 18 years. So appellant Ajit Kumar Dubey may be accorded the benefit of beneficial Legislation even by this Court. In this connection, I am of the opinion that when the actual age of appellant Ajit Kumar Dubey is not being brought in any evidence before this Court nor is has brought before the trial Court and in view of the fact that Ext-A is unreliable, it is difficult for this Court to consider the plea of appellant Ajit Kumar Dubey under the Juvenile Justice (Care and Protection of Children) Act, 2000, which by the amendment introduced subsequently, has fixed the age of Juvenile below 18 years but above 16 years. Moreover, it is difficult for me to subscribe to the view that the Court must allow the culprit the benefit of the amended Act at the time when the Court is pronouncing its judgment, even if the liability of the offender accrues on the date of occurrence, according to law in force at that time, in all cases and in all circumstances of the case. The primary duty of the Court is to impart justice and in dispensation of justice, the Court shall also take into consideration the sentiments and the grief suffered by the victim as well. Even if the amended law has to be applied to allow the offender the benefit of amended law, the advanced age of the Offender must also be considered, if he is to take benefit of the amended law. Even if the amended law has to be applied to allow the offender the benefit of amended law, the advanced age of the Offender must also be considered, if he is to take benefit of the amended law. In all circumstances of the case and especially in view of the fact that the actual age of the appellant Ajit Kumar Dubey, as per the entry in the School Register, was not disclosed by the appellant during the trial and even before this Court, I think, he cannot be granted benefit of the amended law enshrined in the Juvenile Justice Act, 2000. It is a matter of common knowledge that the guardians, while declaring the age of their wards at the initial stage of schooling of their wards, reduce their age. Appellant No. 1 Prabodh Kumar Dubey was admittedly a practicing lawyer of long standing practice at Arrah Civil Court, as it has been disclosed from the evidence of PW 1, so it cannot be assumed that he would wrongly declare the age of this son Ajit Kumar Dubey (appellant No. 2). 20. The above conspectus of the evidence and the circumstances . on the record would disclose that the order of conviction recorded by the trial Court was not unwarranted and unjustified. Appellant No. 1 Prabodh Kumar Dubey who is father of appellant No. 2 Ajit Kumar Dubey was instigating his son to fire. So he had common intention with his son. To advance the plea that appellant No. 1 himself could have fired had he such an intention, is a preposterous argument, because it is also a matter of common knowledge that elderly people allow their junior culprits to commit the actual offence so that he may be exonerated under the ameliorating and beneficial Acts and the elderly people, thus, may claim their exoneration on the ground that they did not actually mdulge in the alleged offence. So I think appellant No. 1 Prabodh Kumar Dubey would naturally goading his son to fire at PW 1. 21. So far the sentence is concerned, the trial Court has imposed the sentence of 7 years RI which, in view of nature of injury sustained by PW 1 and the circumstances of the case, do not call for any interference from this Court. 22. 21. So far the sentence is concerned, the trial Court has imposed the sentence of 7 years RI which, in view of nature of injury sustained by PW 1 and the circumstances of the case, do not call for any interference from this Court. 22. In the result, the order of conviction and sentence, passed against appellant No. 3 Bindeshwari Singh is set aside. The order of conviction and sentence passed against appellant No. 1 Prabodh Kumar Dubey and appellant No. 2 Ajit Kumar Dubey is confirmed. 23. With the above modification in the judgment of conviction and the order of sentence, this appeal is dismissed.