Judgment – This criminal appeal has been preferred by the appellant against the judgment and order dated 31-8-1981 , passed by the then Sessions Judge, Chamoli, in Sessions Trial No. 4/1981, convicting the accused/appellant Trilok Singh U/S 326 I.P.C. and sentencing him to undergo R.I. for 2% years. 2. According to the prosecution the accused Trilok Singh and injured belonged to same pedigree. Dev Singh had three sons namely Dharam Singh (father of accused Trilok Singh), Kedar Singh (since deceased- husband of Smt. Raji Devi, P.W. 1 and father of Bhawan Singh, P.W.2) and Shiv Singh (P.W.3). As per the prosecution case on 12-11-1977 Bhawan Singh was returning back to his home froh1 his school and at about 5 PM., 1 % kilometer prior to the village, Trilok Singh accused met him in the way. His daughter Km. Sarda was also with the accused Trilok Singh. The accused questioned Bhawan Singh as to why he had abused Km. Sarda and on his denial, he struck a stone on the head of Bhawan Singh with the result that he received injury. Thereafter when in the evening Bhawan Singh was present near the cowshed of Shiv Singh, Kedar Singh, father of Bhawan Singh, came there and questioned the accused as to why he had caused injury to his son. Thereupon the accused went inside his house, brought an unlicensed gun and fired a shot at Kedar Singh with the result he fell injured on the ground. The occurrence was witnessed by Smt. Raji Devi, Bhawan Singh and Shiv Singh. Then on 13-11-1977 at 8 A.M. Jaman Singh, Pradhan of the village, lodged the report, Ext. Ka. 1 with the Patwari Circle Bura. On the basis of the written report, case was registered against the accused vide G.D. entry, Ext. Ka.2. Patwari Narendra Prasad Mishra immediately went to the spot and prepared site-plan of the place of the occurrence, Ext.Ka.3. The 1.0. took into possession the paijama of the injured, vide recovery memo Ext. Ka.4 and sent the injured Kedar Singh for medical examination. 3. On 14-11-1977 at 11-30 A.M. injured Kedar Singh was medically examined by Dr. L.K. Rastogi, in the District Hospital, Gopeshwar. 4. On transfer of Narendra Prasad Mishra, Patwari, the investigation of the case was handed over to Garib Dass Patwari. Ka.4 and sent the injured Kedar Singh for medical examination. 3. On 14-11-1977 at 11-30 A.M. injured Kedar Singh was medically examined by Dr. L.K. Rastogi, in the District Hospital, Gopeshwar. 4. On transfer of Narendra Prasad Mishra, Patwari, the investigation of the case was handed over to Garib Dass Patwari. According to the prosecution case the muzzle loading gun, which was used by Trilok Singh in the incident, belonged to Sher Singh and the gun was also recovered after the incident from the possession of Sher Singh, hence after completion of the investigation the I.O. submitted charge sheet, Ext. Ka.5 against the accused Trilok Singh U/Ss 304 I.P.C. and 25 Arms Act, and charge sheet, Ext. Ka.6 against accused Sher Singh U/ S 25 Arms Act. 5. On committal of the case to the Court of Sessions, the learned Sessions Judge discharged the accused Sher Singh from the offence U/S 25(a)(e) of the Arms Act and framed charge U/S 307 I.P.C. against the accused Trilok Singh. The accused pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case, produced in all five witnesses. 7. P.W.1, Smt. Raji Devi is the widow of deceased Kedar Singh. This witness has deposed that on the day of the occurrence, a quarrel took place between her son Bhawan Singh and the accused Trilok Singh, in which the accused gave blow of a stone on the head of Bhawan Singh. Lateron when she returned her home after taking grass from the jungle, her husband Kedar Singh asked accused Trilok Singh as to why he beat Bhawan Singh. At this the accused went inside his room and brought out a gun and fired shot at Kedar Singh, who after sustaining gun shot fell down. This witness also alleged that at the time of incident Shiv Singh, his wife Jasma Devi and their son Narayan Singh were also there. 8. P.W.2, Bhawan Singh, is the person who was given stone-blow by the accused prior to the present incident. This witness has also corroborated the version given by P.W.1, Smt. Raji Devi. 9. P.W.3, Shiv Singh is also the witness of fact. He has deposed that when the incident took place he was returning to his home and he saw that Bhawan Singh was injured at his head and blood was coming out from the wound. This witness has also corroborated the version given by P.W.1, Smt. Raji Devi. 9. P.W.3, Shiv Singh is also the witness of fact. He has deposed that when the incident took place he was returning to his home and he saw that Bhawan Singh was injured at his head and blood was coming out from the wound. He also deposed that Kedar Singh also came there and Trilok Singh accused fired a gun shot at Kedar Singh from his back. On sustaining gun shot injury Kedar Singh fell down. 10. P.W.4, Narendra Prasad Mishra has started the investigation in the case. He deposed that on 13-11-1977 in the morning Jaman Singh Pradhan of Gram Sabha Bura handed over him written report, on the basis of which he prepared check report, Ext. Ka.1 and registered the case against the accused in G.D. copy of which he has proved as Ext. Ka.2. He visited the place of the occurrence and prepared site plan, Ext. Ka.3. Thereafter this witness was transferred and the investigation was entrusted to another Patwari Garib Dass. This witness has also deposed that Garib Dass, Patwari submitted charge sheet, Ext. Ka.5 against the accused Trilok Singh and the supplementary charge sheet, Ext. Ka.6 was submitted against accused Sher Singh by Randhir Singh Negi, Patwari. . 11. P.W.S, Dr. L.K. Rastogi has conducted the medical examination of Kedar Singh on 14-11-1977 at 11.30 A.M. and prepared injury report, Ext. Ka.7. 12. The accused in his statement U/S 313 Cr.P.C. has denied the allegations. He however admitted that the quarrel between him and Kedar Singh took place on landed property. 13. The learned Sessions Judge, after having perused the evidence on record and hearing learned counsel for the parties, came to the conclusion that the prosecution has been successful in establishing the guilt U/S 326 I.P.C. against the accused/appellant instead of Section 307 I.P.C. and accordingly sentenced him to 2% years R.I. 14. Feeling aggrieved, the accused/appellant has preferred the appeal before Allahabad High Court, which was transferred to this court after creation of separate State. 15. I have heard the learned counsel for the parties and perused the record. 16. It reveals from the record that Smt. Raji Devi, P.W.1, Bhawan Singh P.W.2 and Shiv Singh P.W.3 have been produced by the prosecution as the eyewitnesses. 15. I have heard the learned counsel for the parties and perused the record. 16. It reveals from the record that Smt. Raji Devi, P.W.1, Bhawan Singh P.W.2 and Shiv Singh P.W.3 have been produced by the prosecution as the eyewitnesses. The reading of the statements of these witnesses reveal that in the evening of 12-11-1977, Bhawan Singh, P.W.2 was present near the cow-shed of Shiv Singh, P.W.3 Kedar Singh, now deceased, came over there and questioned the accused/appellant as to why he had struck stone on the head of his son Bhawan Singh, P.W.2. The accused/appellant went inside his nearby house and brought an unlicensed gun, thereafter fired a shot at Kedar Singh, with the result, he fell on the ground after sustaining injuries. The accused/appellant ran away from the spot. P.W.3, Shiv Singh has also corroborated the version of P.W.1 and P;W.2, although he has not been interrogated by the Investigating Officer Narendra Prasad Mishra, P.WA, as he has also deposed in his statement before the court that he had forgotten to interrogate Shiv Singh. He has also deposed that he had seen the injury on the head of Bhawan Singh, but even then he did not think it necessary to get him medically examined. This circumstance clearly shows that proper investigation was not done by the Investigating Officer who was the Patwari. But the wrong investigation alone is not going to damage the prosecution case, as all the witnesses of fact have supported the prosecution version and their depositions also indicate that they had witnessed the occurrence. The witnesses produced by the prosecution are closely related to the accused/appellant and it is not expected that the witnesses shall falsely implicate the accused/appellant in the case. 17. Learned counsel for the appellant has submitted that the injured Kedar Singh had in fact sustained injuries in the jungle while hunting but nothing has been said by the accused/appellant in his statement U/S 313 Cr.P.C. in this regard. 18. The Dr. Rastogi, P.W.S examined Kedar Singh and found following injuries on his person : (i) Lacerated wound over an area of 13 cm x 8 cm on the back aspect of right hand at and below the level of wrist with diffused swelling, 2cm all round it with soft tissues, extensively lacerated, with multiple fracture of the under lying bones from the wound. The soft tissue were also impregnated with blackish material (scorching). Due to extensive laceration and pus discharge (infection) the margins were inverted at certain places. No foreign body (pellet-like) seen superficially. It was wound of entry. Injury was caused by gun shot and was grievous. X-ray was advised. 2- Lacerated wound over an area of 14cm x 10cm on the front aspect of right hand at and below the level of wrist (corresponding to injury No.1) with diffused swelling, 2cm all around it, with soft tissues extensively lacerated, with multiple fracture of the under lying bones. Foul smelling discharge with pus was coming out from the wound. There was no blackening and scorching in and around the wound. The margins were inverted. No foreign body (pellet like) were seen superficially. It was wound of exit. It had been caused by gun shot and was grievous. 3- Two lacerated wounds over an area of 7cm x 5cm, oval in shape, ranging in size from 2cm x 1.5cm and 3cm x 2cm, 1.5cm apart each other on the outer aspect of upper third of right thigh with extremely tender deformed and diffused swelling 22cm x 21cm all around the wound and middle third of thigh. Margins of the wound were inverted with clotted blood and foul smelling discharge. The upper wound 13cm below the right superior iliac spine. It was wound of entry. It had been caused by projectile discharge from explosive. X-ray was advised. This witness admitted the injured in the District Hospital, Gopeshwar and started the bed head ticket, Ext. Ka.8 which was completed by Dr. D.C. Awashi Surgeon who had taken the X-ray Exts. Ka.9 and Ka.10 and had prepared the report, Ext. Ka.11. According to this there was comminuted fracture of shaft upper one third part with two radiopaque shadows with multiple radiopaque dot like shadows around it and also fracture of second to fifth metacarpal and multiple fracture of carpet bones with few dot like radiopaque shadows. There was fracture of styloide process of radius also. 19. Ka.11. According to this there was comminuted fracture of shaft upper one third part with two radiopaque shadows with multiple radiopaque dot like shadows around it and also fracture of second to fifth metacarpal and multiple fracture of carpet bones with few dot like radiopaque shadows. There was fracture of styloide process of radius also. 19. In the opinion of the doctor the injuries could have been caused in the evening of 12-11-1977 and according to the supplementary medical examination report, there was a communited fracture of shaft upper one third part with two radiopaque shadows with multiple radiopaque dot like shadows around it and also fracture of second to fifth metacarpal and multiple fracture of carpel bones with few dot like radiopaque shadows. There was also fracture of styloide process of radius. 20. In view of the oral testimony which finds corroboration with the medical version,1 come to a definite and irresistible conclusion that the prosecution has established the guilt of the accused/appellant beyond reasonable doubt. The trial court has rightly convicted the accused/appellant for having committed the offence U/S 326 I.P.C. 21. As far as the sentence awarded by the trial court is concerned, most glaring factor in this case, which can not be ignored that injured Kedar Singh was not produced by the prosecution as he died before the case was committed to the court of Sessions. He had died for some other reason and not on account of the injuries sustained by him. Further, Jaman Singh, who was the complainant of this case, also died and on account of his death his statement also could not be recorded before the trial court. The incident in this case took place in the year 1977, Le. 29 years ago. The appellant was aged about 33 years at the time of his statement recorded U/S 313 Cr.P.C. Therefore, under the aforesaid circumstances, I think that it would not be in the interest of justice to send the appellant again to jail in order to serve out the sentence imposed against him by the trial court. The record reveals that the appellant had been in jail during the course of the trial for about 40 days. Therefore, I am of the view that instead of sending the appellant again to jail, it will be just and proper to impose a fine of Rs. The record reveals that the appellant had been in jail during the course of the trial for about 40 days. Therefore, I am of the view that instead of sending the appellant again to jail, it will be just and proper to impose a fine of Rs. 5000/- against the accused/appellant and in case if he commits default in making the payment of fine, then he will have to undergo imprisonment of the period awarded by the trial court. 22. The appeal is partly allowed. The conviction awarded to the accused/appellant by the trial court is maintained. However, the sentence awarded to the accused/appellant is modified upto the extent of the period already undergone by the appellant as well as a fine of Rs. 5000/- instead of the remaining period of sentence. In default of payment of fine the accused/appellant shall have to serve out the sentence awarded to him by the trial court. 23. Let the record be immediately sent back to the trial court for compliance. * * *