Judgment Abhijit Sinha, J. 1. By Judgment dated 12.11.1992 passed in Sessions Trial No.7 of 1988 (arising out of Ghoshi P.S. Case No. 84/86) Sri Purushottam Jha, the then 2nd Assistant Sessions Judge, Jahanabad, convicted appellants Dwarika Paswan, Brij Nandan Paswan and Suresh Prasad for commission of offences under Sec. 307/34 I.P.C. and whereas Suresh Prasad was sentenced to undergo rigorous imprisonment for ten years, accused Dwirika Paswan and Brij Nandan Paswan were each awarded sentence of rigorous imprisonment for four years. 2. Aggrieved by the said Judgment and Order two separate appeals there against were sought to be preferred-one by Dwarika Paswan and Brij Nandan Paswan which was registered as Criminal Appeal No. 274 of 1992 and the other by Suresh Prasad which was numbered as Criminal Appeal No. 278 of 1992. 3. The factual matrix of the prosecution case can gainfully be culled out from the fardbeyan of the injured informant, Kameshwar Prasad, given to the A.S.I, of Modanganj O.P. at about 8 P.M. on 31.05.1986. According to the informant earlier that evening at around 7.45 P.M. while he was standing near his darwaza, three persons who were in hiding from before suddenly arrived. He identified them as Dr. Suresh Prasad, Dwarika Paswan and Brij Nandan Paswan and all of them were allegedly armed with guns. It is alleged that Suresh Prasad fired from his gun causing injuries to the informant near the elbow of his left hand, armpit and neck. The alarm raised by him attracted the attention of the neighbours, many of whom including Padarath Gope and Kamta Gope arrived whereupon the accused persons fled away. On the basis of the said fardbeyan Ghoshi P.S. Case No. 84 of 1986 was registered and after due investigation a charge sheet was submitted. 4. After commitment of the case charges only under Sec. 307 read with 34 I.P.C. was framed against all the three accused who pleaded not guilty and claimed to be tried. The prosecution examined only three witnesses in support of its case, namely, Bijendra Sao (P.W.1) Kameshwar Prasad, the informant, (P.W. 2) and Dr. Rajendra Prasad (P.W.3) who had referred the informant to the Patna Medical College and Hospital. However, the I.O. and other witnesses cited in the charge sheet have not been examined and there is no explanation therefor. The prosecution examined only three witnesses in support of its case, namely, Bijendra Sao (P.W.1) Kameshwar Prasad, the informant, (P.W. 2) and Dr. Rajendra Prasad (P.W.3) who had referred the informant to the Patna Medical College and Hospital. However, the I.O. and other witnesses cited in the charge sheet have not been examined and there is no explanation therefor. The fardbeyan and the injury report have been adduced in evidence and marked as Exhibits 1 and 2 respectfully. 5. The defence plea is one of innocence and false implication due to enmity over land dispute. It is also their case that no occurrence as alleged ever took place and the injuries had been sustained in a different way. 6. The learned trial Court after hearing the submissions of the parties and considering the materials available on record held all the three accused guilty of the charges framed against them and sentenced them in the terms mentioned above. 7. As before the trial Court so before this Court the defence plea is one of innocence and false implication. It was further sought to be submitted that there was no eye witness to the occurrence and Kamta Gope and Padarath Gope, who in the fardbeyan are said to have arrived on the scene of occurrence and viewed the same and although related with the informant have curil ously not been examined and apart from the doctor and the informant the only other person examined was P.W.1 who in his testiI mony in Court had admitted that he had not given any statement before the Police in course of investigation and being a tenant of the informant he obviously was an interested witness. It was also contended that the medical evidence was not consistent with the evidence of other witnesses inasmuch as although the informant was referred to the Patna Medical College and Hospital for further treatment, neither his medical report from Patna has been exhibited nor any doctor treating the informant at Patna has been examined. On this premise it was sought to be submitted that although P.W.3 Dr. On this premise it was sought to be submitted that although P.W.3 Dr. Rajendra Prasad had reserved his opinion regarding the nature of the injuries sustained by the informant or the causes therefor and merely referred the informant to the Patna Medical College and Hospital Emergency Ward for proper investigation and treatment, no medical evidence of the injury sustained by the informant being grievous was legally available on the record and, therefore, recording of verdict of guilt under Sec. 307 I.P.C. was contrary to the weight of evidence including that of the doctor. It was further submitted that the offence of attempt to commit murder punishable under sec. 307 I.P.C is constituted by the concurrence of mens rea followed by actus rues and in the instant case no motive has been assigned for the commission of the offence. The appellants have also raised the grievance of their case being prejudiced by the non examination of the Investigating Officer. It was also submitted that since the appellants had suffered the ordeal of protracted prosecution for about 21 years and had also suffered custody for sometime the equity of justice would require that the appellants are not sent to custody to serve out the sentence pronounced by the Court below in case the finding of the Court below is upheld by this Court. 8. P.W.1 Bijendra Sao who claims to be a labourer in his testimony in Court on 5.4.1991 stated that the occurrence had taken place some 4 years and 4 months back at around 18 hours when he was in the shop, and that while he was searching for the lock to close the shop he heard the sound of firing and heard Kameshwar saying that he had been hit by the gun fire and further named Dwarika, Surendra and another person whose name he was not able to recall as having committed the crime. The witness further stated that he saw Kameshwar standing at the darwaza and the blood oozing. In course of cross examination he stated that he had not given any statement before the Police and that earlier he had his shop in the house of Kameshwar. 9. From the deposition of P.W.1 it is clear that he was neither an eye witness to the occurrence nor he had given any statement before the Police. In course of cross examination he stated that he had not given any statement before the Police and that earlier he had his shop in the house of Kameshwar. 9. From the deposition of P.W.1 it is clear that he was neither an eye witness to the occurrence nor he had given any statement before the Police. In that view of the matter he was deposing in respect of the occurrence for the first time in the Court and even otherwise his deposition does not inspire confidence. 10. The informant Kameshwar Prasad has been examined as P.W.2 and has supported his fardbeyan in material particulars. However, he has not imputed any motive for the occurrence. Although P.W.2 stated of remaining in the Patna Medical College and Hospital for about 16-17 days and pellets being removed from his body nothing has been brought on record in support thereof. 11. Dr. Rajendra Prasad P.W.3 appears to have examined the injured informant and found multiple bloody oozing wound with black margin on left forearm, upper arm, elbow and others parts. He also found one oozing wound with black margin at the root of the neck. However, as stated earlier he has not given out the nature of the wound or the cause, therefor. 12. From the deposition of the witnesses as detailed above it is clear that it could not be said with certainty that there had been an attempt to murder the informant so as to bring the offence within the ambit of Section 307 I.P.C. as allegedly only one shot had been fired. However, the fact remains that the informant had sustained injuries on various part of his body. Accordingly, the finding recorded for conviction under Sec. 307 I.P.C. is set aside and the appellant Dr. Suresh Prasad is convicted under Section 326 I.P.C. and Dwarika Paswan and Brij Nandan Paswan are convicted for offence under Sec. 326 read with Sec. 34 I.P.C. 12. Due regard being had to the protracted ordeal and prosecution that the appellants have undergone as also to the mental trauma and harassment that they have had to face due to the litigation the sentence of Dwirika Paswan and Brij Nandan Paswan are reduced to the period undergone. Due regard being had to the protracted ordeal and prosecution that the appellants have undergone as also to the mental trauma and harassment that they have had to face due to the litigation the sentence of Dwirika Paswan and Brij Nandan Paswan are reduced to the period undergone. So far as appellant Suresh Prasad is concerned he had been in custody for some time and the ends of justice will be met if his sentence is converted, in the peculiar facts and circumstances of the case, to one already undergone. 13. In the result both the appeals are dismissed with modification in sentence.