JUDGMENT Honble Mrs. Poonam Srivastav, J.—Heard Sri Shashi Bhushan, learned counsel for the appellants and learned A.G.A. for the State. 2. The instant appeal was preferred by two appellants namely Ram Prasad Mani Tripathi alias Bhola son of Ram Pragati Mani Tripathi and Laljee Mani Tripathi, son of Narshingh Mani Tripathi. Non-bailable warrants were issued against the appellants by this Court on 31.8.2009. Report has been sent by the Chief Judicial Magistrate, Gorakhpur in compliance of the aforesaid order informing that the appellant No. 1 namely Ram Prasad Mani Tripathi alias Bhola had died 10 years before. The report from the concerned police station as well as Gram Pradhan has been appended with the report of the Chief Judicial Magistrate, Gorakhpur. Office report dated 30.10.2009 shows that in view of the report of the Chief Judicial Magistrate, the appellant No. 1 has died. The appeal stands abated so far the accused Ram Prasad Mani Tripathi alias Bhola is concerned. I proceed to hear the appeal on behalf of appellant No. 2 Laljee Mani Tripathi. He is convicted under Section 307 I.P.C. and sentenced to three years R.I. 3. The prosecution was initiated on Ex. Ka-1, a written report of Arun Kumar Mani Tripathi, which was lodged by him at Police Station Sikriganj on 11.6.1978 at 10.00 A.M. In this written report, it was alleged that on account of enmity between the complainant and his pattidar Ram Pragati Mani Tripathi, who was out on the day of the incident, accused Ram Prasad alias Bhola who is the son of Ram Pragati Mani Tripathi was roaming about with the licenced gun of his father. On 11.6.1978 at about 8.00 A.M. Awadhesh Kumar, brother of the complainant Arun Kumar was busy in some work in connection with the marriage of the daughter of Ganga Mani Tripathi at his Darwaza. When Ram Prasad accused armed with a gun and Lalji armed with lathi came there, the accused Lalji exhorted Ram Prasad to kill Awadhesh. Thereupon accused Ram Prasad alias Bhola fired a shot from his gun at Awadhesh but it missed and then Pradumn, Ram Bujharat, Harish Chandra, Ganga Mani and Kashi Dubey chased Ram Prasad. When the accused reached the Chak road near the field of Ram Das Mani Tripathi, on the exhortation of Lalji accused, Ram Prasad fired a shot at the complainant Arun Kumar with his gun causing injuries. When the accused reached the Chak road near the field of Ram Das Mani Tripathi, on the exhortation of Lalji accused, Ram Prasad fired a shot at the complainant Arun Kumar with his gun causing injuries. The witnesses then threw brick bats and Dhela on the accused who ran after throwing away his gun. This report was lodged at police station Sikriganj at 10.00 A.M. by Arun Kumar. Case was registered at the police station and Arun Kumar complainant was sent to P.H.C. Uruwa where he was medically examined by Dr. Sudhakar Dubey. The complainant was also sent for X-ray examination by the Radiologist at the District Hospital, Gorakhpur. The investigation was taken up by Sri Ram Narain Ram, the then Station Officer of Police Station Sikriganj. The weapon of assault namely the gun was deposited at the police station with the report, alleged to belong to accused Ram Prasad. The investigating officer interrogated the witnesses and finally submitted charge sheet against the accused. 4. Prosecution examined the complainant Arun Kumar Mani Tripathi as PW-1, Harish Chandra as PW-2 and another eye witness Ganga Saran Mani as PW-3. Sri Ram Narain Ram, the Investigating Officer was examined as PW-4, Dr. Sudhakar Dubey, Medical Officer who had examined Arun Kumar, was examined as PW-5 and Dr. S.C. Tripathi, Radiologist was examined as PW-6. Awadhesh Kumar could not be examined as he was reported to be killed before his evidence could be recorded in this case. 5. PW-5 Dr. Sudhakar Dubey, Medical Officer, P.H.C. Chargawan, was posted in P.H.C. Uruwa on 11.6.1978 when at 10.3 A.M. he examined Arun Kumar Mani Tripathi who was brought to the Primary Health Center by constable Jhinkan Pandey of Police Station Sikriganj. Dr. Dubey found the under noted injuries on his person. Examined Arun Kumar Mani Tripathi, S/o Shri Shyam Bihari Mani Tripathi, native of village Nakozha, P.O. Urwa, P.S. Sikari Ganj, District Gorakhpur. B/B Mr. Jhinkan Pandey Number 704 CP Constable P.S. Sikari Ganj, found the following marks of injury on the body at the time of examination. M.I. A Black mole on left Anterior aspect of arm 6.2 inch below the lateral Border of clavicle left. Injury:- (1) A fire arm wound 3 inch vertical x 2.8 inch Horizontal x 0.4 inch Depth on Posterior aspect of Right arm 2 inch above Right elbow joint. M.I. A Black mole on left Anterior aspect of arm 6.2 inch below the lateral Border of clavicle left. Injury:- (1) A fire arm wound 3 inch vertical x 2.8 inch Horizontal x 0.4 inch Depth on Posterior aspect of Right arm 2 inch above Right elbow joint. Area of Burn around the wound pieces of muscles and tendon seen over the wound. Profuse bleeding from the wound. (2)Abrasion 0.8 inch x 0.6 inch x skin depth on Posterior aspect of Right Arm 1 inch medial to fire arm wound, 2.2 inch above the right elbow joint. Referred to Distt. Hospital for X-ray of Right arm. Injury Name. (1) Nature of weapon used, injury No. (1) Fire arm No. (2) Friction against rough surface. Duration of Injury- Fresh. Nature of injury Grievous. LTI Attested Sd/- Illegible Sd/- Illegible Medical Officer, Medical Officer, P.H.C. Urwa, P.H.C. Urwa, Gorakhpur. Gorakhpur. Dr. Sudhakar Dubey proved injury report Ex. Ka-7 and claimed that he had referred the injured to the District Hospital. According to Dr. Dubey, the fire arm injury could have been caused by a gun. It was grievous and fresh. The abrasion was caused by friction, simple in nature and was fresh. Dr. Dubey opined that the injuries could have been caused on 11.6.1978 at 8.00 A.M. He conceded that both the injuries were on non-vital part but there was severe bleeding present. He was not able to give a definite opinion about the distance from which the shot was fired at the injured. He, however, maintained that death was possible from the injuries. Dr. S.C. Tripathi, PW-6 conducted the X-ray examination of the arm of Arun Kumar and found a foreign body in the short tissue which could have been a pellet. He proved X-ray report. Ex. Ka-8 and X-ray plate Ex. 1. From the medical evidence, as discussed above, the prosecution case stands supported that Arun Kumar Mani Tripathi received fire arm injury on his right arm on 11.6.1978 at 8.00 A.M. There is a cross version also and according to the accused, injuries have also been received by the appellant Ram Prasad Mani Tripathi alias Bhola. Injury of accused Ram Prasad Mani Tripathi was examined at 1.00 P.M. on 11.6.1978. According to statement of Ram Prasad Mani Tripathi, the injury was received in the instant incident itself. Dr. S.L. Sharma DW-1 has proved the injuries. Injury of accused Ram Prasad Mani Tripathi was examined at 1.00 P.M. on 11.6.1978. According to statement of Ram Prasad Mani Tripathi, the injury was received in the instant incident itself. Dr. S.L. Sharma DW-1 has proved the injuries. All of them were abrasion and could have been caused by finger nails while injury Nos. 4, 5 and 8 were contusions and could have been caused by Dhelas. Dr. Sharma has submitted that injury No. 1 was a punctured wound which could have been caused by a piece of sharp pointed tin. The injury report is Ex. Kha-6. Perusal of the injury report shows that abrasions on the right fore-head, left axila and chest were simple and superficial. There were contusions on the left fore-arm, left leg and on scapular region and could have been caused by Dhelas, brick bats or stone, therefore, it is clear that the injuries on the person of the accused stands fully explained. Without going into merit of the case, learned counsel for the appellant has submitted that the appellant No. 1 who is alleged to have caused fire arm injury, is no more alive and his appeal stands abated. So far the role of appellant No. 2 is concerned, he has only been attributed the role of exhortation. It is submitted that since admitted case of the prosecution is that the accused were chased by Bhala, brick bats etc. but no injury has been caused to the present appellant. The role of exhortation belies the prosecution story that he was present at the scene of occurrence. After hearing the counsel at length, I am satisfied that the judgment of conviction does not call for interference. The learned Session Judge has rightly come to a conclusion that the appellant Ram Prasad Mani Tripathi alias Bhola had caused the injury on the prosecution witness (complainant) and, therefore, the judgment of conviction does not call for interference since the accused Ram Prasad Mani Tripathi is dead and the appeal stands abated. The question of conviction against the appellant No. 2 is only being considered in the instant appeal. He has been assigned the role of exhortation only and taking into consideration the fact that a long time has lapsed, I think that the appellant may not be sent to jail. The question of conviction against the appellant No. 2 is only being considered in the instant appeal. He has been assigned the role of exhortation only and taking into consideration the fact that a long time has lapsed, I think that the appellant may not be sent to jail. In the circumstances, the appeal is partly allowed and conviction and sentence of imprisonment awarded by the Court below under Section 307, I.P.C. is reduced to ‘already undergone’ and is converted into one by imposing fine of Rs. 2,000/-. The amount of fine shall be deposited within a period of two months from today. In the event of default in payment of fine, imprisonment of two months. ————