Judgment Abhijit Sinha, J. 1. This appeal is directed against the judgment and order dated the 11th day of August, 2003 passed by Sri Prakash Chandra Gupta, the learned 7th Additional Sessions Judge Gaya, in Sessions Trial No. 160 of 1999/33 of 1997 arising out of Tekari RS. Case No. 90 of 1995. By the impugned judgment and order the accused- appellant has been sentenced to undergo R.I. for 10 years for the offence under Sec.307 I.P.C. and to undergo R.I. for 2 years for the offence under Sec.27 of the Arms Act with the direction for both sentences to run concurrently. 2. The incident giving rise to the appeal took place at about 7.00 P.M. on 5th May, 1995 at the house of one Ram Janam Yadav at village Kehura within Tekari P.S. in the district of Gaya for which the fardbeyan was given later on at 22.20 hours by injured Uday Kumar of the same village at the Primary Health Centre, Tekari. According to the informant at the relevant time while he was returning home with his bullock, it got unleashed suddenly and going to the naad situated in the house of co-villager Ram Jsnam Yadav started drinking water whereupon the accused started abusing the informant and when the informant objected an altercation developed. It is said that in the meanwhile Sheo Ratan Yadav and Rohan Yadav along with Bimlesh Yadav arrived and they in support of accused Ram Janam Yadav also started abusing the informant and on the advise of Sheo Ratan Yadav to kill the informant, accused Ram Janam Yadav fished out a country made pistol from his waist and chased the informant upto the devisthan of the village where he fired at the informant causing him pellet injuries in the abdominal region and the informant fell to the ground . It was on the basis of the said fardbeyan of Uday Kumar that Tekari P.S. Case No. 90 of 1995 was registered. Subsequently, after due investigation, the police submitted a charge sheet under Sections 307, 324/34 I.P.C. as also Sec.27 of the Arms Act against all the four F.I.R. named accused and in due course the case was committed to the court of Sessions for trial. 3. Subsequently, after due investigation, the police submitted a charge sheet under Sections 307, 324/34 I.P.C. as also Sec.27 of the Arms Act against all the four F.I.R. named accused and in due course the case was committed to the court of Sessions for trial. 3. It will not be out of place to mention here that during the course of investigation, the condition of the injured informant having deteriorated he was removed to the Magadh Medical College and Hospital at Gaya for better treatment. It will also not be out of place to mention here that one of the chargesheeted accused Bimlesh Yadav on being found to be a juvenile, his case was separated and referred to the Juvenile Court. 4. At the trial before the Sessions Court, charges under Sections 307/34, 324/34 I.P.C. and 27(1 )/34 of the Arms Act were framed against the three remaining accused, Ram Janam Yadav, Rohan Yadav and Sheo Ratan Yadav to which they pleaded not guilty and claimed to be tried. 5. The prosecution in support of its case at the trial sought to examine as many as 7 witnesses including Uday Kumar (RW.5), the injured informant, Dr. Vishnu Murti Mishra (P.W.6), the attending doctor at Tekari Primary Health Centre who had referred the injured informant to the Gaya Hospital for further treatment. Anil Pd. Sinha (P.W.7), the S.I. of Tekari Police Station who appears to have merely recorded the fardbeyan of the injured informant and also prepared the seizure list, Suraj Yadav (P.W.3) and Vijay Yadav (P.W.4), the two attesting signatories of the seizure list. The two other witnesses examined by the prosecution are Dinesh Yadav (P.W.1), the brother of the informant, and Chandra Bhushan Kumar (P.W.2), a co-villager and a purported eye witness of the alleged occurrence. That apart, the prosecution has also adduced a fair number of documentary evidence to bolster its case. 6. On the contrary the defence has not chosen to adduce any evidence, be it occular or documentary, and instead has primarily depended on pointing out the discrepancies and contradictions in the testimony of the prosecution witnesses. 7. After considering the materials available on record the learned trial court recorded a judgment of acquittal so far as the charges framed against accused Sheo Ratan Yadav and Rohan Yadav are concerned, but convicted and sentenced accused Ram Janam Yadav in terms as stated in paragraph 1 herein. 8. 7. After considering the materials available on record the learned trial court recorded a judgment of acquittal so far as the charges framed against accused Sheo Ratan Yadav and Rohan Yadav are concerned, but convicted and sentenced accused Ram Janam Yadav in terms as stated in paragraph 1 herein. 8. Admittedly, the fact that the informant sustained injuries in the abdominal region is not in dispute. The defence of the appellant before the Court below and also this Court has been that of innocence. It was sought to be submitted that there was no eye witness to the occurrence and the story as narrated by the informant does not have any corroborative support as the evidence of P.Ws. 1 and 2 cannot be relied upon, since P.W.1 being the brother of the informant was an interested witness and P.W.2 was a hearsay witness. It was also contended that the medical evidence was not consistent with the evidence of other witnesses inasmuch as whereas the witnesses stated that the informant sustained firearm injuries, the Doctor did not find any pellets or foreign body in the injury sustained by the informant. It was also sought to be submitted that notwithstanding there being any positive medical evidence of the injury sustained by the informant being grievous, the Court below has recorded a verdict of guilt under Section 307 I.P.C., which was contrary to the weight of mass of evidence including that of the Doctor. Learned counsel for the appellant sought to contend that the offence of attempt to commit murder punishable under Section 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 appellant also raised the grievance of his case being prejudice by the non examination of the 1.0. It was also submitted that since the appellant has suffered ordeal of protracted prosecution for about 12 years and has also suffered custody in all for about 18 months the equity of justice would require that the appellant is 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. 9. Now delving upon the testimony of the P.Ws. I will first take up the deposition of the informant (P.W.5). 9. Now delving upon the testimony of the P.Ws. I will first take up the deposition of the informant (P.W.5). In course of his examination in chief he has supported the story in the fardbeyan in material particulars with minor modifications. He has clearly stated that it was Ram Janam Yadav, who on the advice of Shiv Ratan Yadav had fired at him and that he had been referred to the Gaya hospital where he had been operated upon and the pellet had been taken out. Nothing of much use has been extracted by the defence in course of the cross examination of P.W.5. An attempt was made to build up a case of animosity but the same did not find any favour from this witness as he stated that it was for putting pressure upon him that a case had been brought by the accused against him subsequently which was eventually dismissed. P.W.5 also stated that there had been no other case in between the family members of the accused on the one hand and he and his wife on the other. The defence also attempted, without any success to relate the instant occurrence as a consequence to the theft of the handle of the pumping set. To another question by the defence P.W.5 categorically stated that he had no animosity with any other villager. Dinesh Yadav (P.W.1) in his deposition in Court stated that at the relevant time he was in his house and he was in the maidan when the firing took place. He also supported the prosecution story in material particulars. He also stated that on two occasions he had deposed against the accused persons in other cases and that there was no litigation against the accused persons prior to the instant case. No specific questions were put to this witness and his deposition does not come to the rescue of the appellant. P.Ws. 3 and 4 are witnesses to the seizure list, and they identified their signatures on the seizure list Chandra Bhushan Kumar (P.W.2) in course of his deposition stated that at the relevant time he was in his home and on coming out he saw Ram Janam Yadav chasing Uday Kumar and of the accused persons surrounding Uday and of Ram Janam fishing out a country-made pistol and firing at Uday causing injury in the abdominal region. Nothing of any use could be extracted from this witness by the defence. 10. Now coming to the medical evidence. The injury report of Uday Kumar has been marked Ext.2. The doctor found a circular perforating wound of 3/4" diameter over left hypocondrium surrounded by tattoing all over the abdomen.The opinion regarding the nature of injury was reserved but seeing the general condition of the patient to be very serious he was referred to Gaya Hospital. The bed-head ticket of the Gaya hospital, which has been marked Ext.-7 reveals that Uday Kumar underwent surgery at the Gaya Hospital and a splinter, which was present in the wound was removed but when on 20.5.1995 the patient complained of pain in buttock, X-ray of pelvis AP View was advised and a X-ray of lower spine revealed radio-opaque shadow of pellet embedded there which was removed. This finding apparently brings to naught the specious submission of the learned counsel for the appellant that there was no positive medical evidence of the injury sustained by the informant. The finding of pellets in the X- ray report clearly goes to show that the injury in the abdominal region of the informant had been caused by fire arm. 11. The plea relating to interested witness is a regular feature in almost every criminal trial. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relationship would not conceal actual corroboration and make allegations as against the innocent person. Foundation has to be led if a plea of false allegation is made. In the instant case there is no foundation made to the plea of false implication. In Masalti vs. State of U.P. ( AIR 1965 SC 202 ) the Apex Court held as follows: "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.....The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 12. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 12. To the same effect are the decisions in State of Punjab vs. Jagir Singh ( AIR 1973 SC 2407 ), Lehna vs. State of Haryana reported in [ (2002) 3 SCC 76 ] and Gangadhar Behera vs. State of Orissa [ (2002) 8 SCC 381 ]. In the present case apart from the evidence of the informant (RW.5) the evidence of RW.2, who has no axe to grind, is there. 13. Even P.W.1, the brother of the informant, had no axe to grind and having deposed in two cases against the accused is no ground to reject his testimony outright. 14. Now coming to the aspect of non examination of the Investigating Officer the learned counsel for the appellant has not shown by reference to any aspect as to how non examination of the I.O. has resulted in any prejudice to the defence. The argument that non examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. The well settled law in this regard is that non examination of the I.O. can result in failure of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to their statements made during the investigation to undo the credibility or in the like manner when some other material evidence cannot be brought on the record except by examining the I.O. In the present case nothing of this nature has been brought to my notice which can be said to have resulted in any prejudice to the appellant on account of non examination of the I.O. I do not find any merit in this submission of the learned counsel for the appellant, moreso when notwithstanding suggestions of animosity being put to P.Ws. 1 and 5 no documents in support thereof were sought to be brought on record by the defence. 15. 1 and 5 no documents in support thereof were sought to be brought on record by the defence. 15. In the instant case the cause for the occurrence appears to be the bullock of the informant drinking water from the Naad of the appellant Ram Janam Yadav, which led to altercation and on the advise of Shiv Ratan Yadav accused appellant Ram Janam Yadav fired from a country-made pistol. Apparently the offence was not pre-mediated. When the mens rea which is essential to the offence of murder was absent and did not necessarily indicate a deliberate intention to cause death or fatal injury it would not amount to an offence under Sec.307 I.P.C. However, since the injured informant remained in hospital from 5.5.1995 to 27.5.1995 i.e. almost 22 days, and was unable to follow his ordinary pursuits and was also in severe bodily pain, the nature of injury would be designated as "grievous" as defined in Sec.320 I.P.C. Clause 8. Accordingly, the finding recorded for conviction under Sec.307 I.P.C. is set aside and the appellant is convicted under Sec.326 I.P.C. The sentence imposed on the appellant for conviction under Sec.307 I.P.C. is also set aside and he is sentenced to undergo R.I. for 4 (four) years. 16. It is an admitted position that it was the appellant who fired at and caused injury in the abdominal region of the informant. His conviction under the Arms Act and imposition of sentence of R.I. for 2(two) years is also upheld. Both the sentences shall run concurrently. 17. In the result the appeal is allowed in part with modification in sentence to the extent indicated in the foregoing paragraphs.