JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) Informant Mohd. Shafi, son of Ramjani, wrote a complaint to SO Manglore, District Haridwar, on 19.04.1997, which was registered as case crime no. 136 of 1997, under Sections 452 and 307 IPC, against the accused persons namely, Abdul Salam and Abdul Rehman. After the investigation, a charge sheet in respect of the selfsame offences was filed against the accused persons. The case was committed to the Court of Sessions. 2. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 307 and 452 IPC were framed against the accused persons, who pleaded not guilty and claimed trial. PW 1 Mohd. Shafi, PW 2 Mohd. Anwar, PW 3 Meharban, PW 4 Naseera, PW 5 Gulfam, PW 6 Dr. B.S. Saini, PW 7 SI Nanhe Ram and PW 8 Constable Chandrapal Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C. in which they said that they were falsely implicated in the case. DW 1 Iqram was examined in defence. After considering the evidence on record, learned Additional Sessions Judge, Roorkee, vide order dated 28.09.2001, exonerated accused Abdul Salam for the offences for which he was charged. Co-accused Abdul Rehman was convicted for the offences punishable under Sections 307 IPC and 452 IPC. Abdul Rehman was directed to undergo rigorous imprisonment for seven years along with a fine of Rs. 5000/- for the offence punishable under section 307 IPC; and three years’ rigorous imprisonment for the offence punishable under Section 452 IPC. Aggrieved against the said judgment and order, present criminal appeal was preferred. 3. Prosecution led the evidence through PW 1 Mohd. Shafi, who said among other things, that about three years ago (from the date of deposition) at 3:00 p.m., PW 1’s brother demanded Rs. 5000/- from Abdul Salam, who was accompanied by Abdul Rehman (present appellant). Abdul Rehman fired upon PW 1’s brother Anwar with the intention of killing him. The pellet struck on the right side of the back of Anwar. Eyewitnesses Meharban and his brother’s wife Naseera came on the place of occurrence and saw the incident. The accused persons fled away. Anwar was got admitted in the Government Hospital at Roorkee. PW 1 was informed about the incident by Meharban and Anwar’s wife. PW 1 went to the hospital. Eyewitnesses Meharban and his brother’s wife Naseera came on the place of occurrence and saw the incident. The accused persons fled away. Anwar was got admitted in the Government Hospital at Roorkee. PW 1 was informed about the incident by Meharban and Anwar’s wife. PW 1 went to the hospital. He got a report of the incident scribed by one Hussain Ahmad, who wrote Ext. Ka-1 on the dictation of PW 1. Since the condition of Anwar was critical, therefore, it took little time for PW 1 to lodge the first information report. PW 1 was not an eyewitness to the alleged incident. 4. PW 2 Mohd. Anwar was the injured, who in his examination-in-chief, said that about three years’ ago (from the date of deposition) at 3:00 p.m., he demanded Rs. 5000/- from Abdul Salam. Abdul Salam said that he will bring the money and asked PW 2 to go to his home. PW2 came back to his house. Abdul Salam and Abdul Rehman came to the house of PW 2. Abdul Rehman fired upon PW 2 with country made pistol, which struck his back. PW 2 fell down. Accused persons fled away. The incident was seen by his wife Naseera and artisan. PW 2 became unconscious. He was taken to the Government Hospital. He recognized Abdul Reham in the open Court also. In the cross-examination, he said that Abdul Rehman was at a distance of 1 to 1-1/2 meters from him. The accused persons entered into his house through outer gate. One pallet struck his back. PW 2 saw the accused persons (when they entered). PW 2 also saw the accused who fired pellets on him. PW 2 saw country made pistol in the hands of the appellant Abdul Rehman. PW 2 tried to escape, but the time was too short and hence the pellets (of Abdul Rehman) struck PW 2, who fell down and became unconscious. He regained consciousness on the 3rd day. Police came to see him at 4:00 p.m. on 3rd day (when he regained consciousness). Police took statements. He was not aware as to when his medical examination was conducted. Pallets were embedded in his body, which were taken out by the medical officer. He also disclosed the boundary of his house. He also said that only PW 3 Meharban and PW 4 Naseera were present in the house, when the incident took place. Police took statements. He was not aware as to when his medical examination was conducted. Pallets were embedded in his body, which were taken out by the medical officer. He also disclosed the boundary of his house. He also said that only PW 3 Meharban and PW 4 Naseera were present in the house, when the incident took place. Accused-assailants owed Rs. 5000/- from him. He remained admitted in the hospital for 14-15 days. PW 2’s wife went to fetch water when the incident took place. Thus, nothing came in the cross-examination of PW 2 which might cast shadow of doubt on his testimony. 5. PW 3 Meharban supported the evidence of PW 2. He said that the appellant Abdul Rehman, fired upon PW 2 with the intention to kill him. Appellant fired from the country made pistol, the pallet of which hit the back of PW 2. Accused persons fled away thereafter. The incident was seen by PW 3 and PW 5 also. PW 2 was taken to hospital whereupon he was admitted. The dues of Rs. 5000/- which were outstanding against Abdul Salman was the cause behind the incident. PW 2 demanded money from Abdul Salam. In the cross-examination, PW 3 said that Naseera went to fetch water, (when the incident took place). PW 2 was the uncle of PW 3. The earth was stained with blood. The wearing apparels of Mohd. Anwar were also stained with blood. PW 2 was wearing kurta-pyjama when the incident took place. PW 2 was got admitted in the hospital by PW 3. It took three days for PW 2 to regain consciousness. Police took his statement. Many other questions were also asked by the defence counsel to PW 3. He denied the suggestion that no such incident took place. PW 3 thus supported the testimony of PW 2. 6. PW 4 Naseera, in her examination-in-chief, said that her husband Anwar demanded Rs. 5000/- from Abdul Salam, who promised to pay the money. On the fateful day, at around 3:00 p.m. PW 4 went to fetch water. When she came back, she saw Abdul Salam and Abdul Rehman inside her house. Abdul Salam fired from country made pistol upon her husband, which struck his back. Her husband fell on the ground. In the cross-examination, she said that the fire was shot in her presence. When she came back, she saw Abdul Salam and Abdul Rehman inside her house. Abdul Salam fired from country made pistol upon her husband, which struck his back. Her husband fell on the ground. In the cross-examination, she said that the fire was shot in her presence. She was at a distance of 2-3 paces from her husband. She brought water in a jug. She tried to catch hold of the accused persons, but they pushed PW 4 aside. She walked to her husband, who felt unconscious. He regained consciousness only after two-three days. The police personnel came to enquire about the incident after three days. PW 4 also apprised them with the incident. She attended her husband continuously. PW 4 saw the country made pistol for the first time in her life. PW 3 Mehraban was also present when the incident took place. Thus PW 4 supported the ocular testimony of PW 2 and PW 3. 7. PW 5 Mohd. Gulfam was the signatory to the memo (Ext. Ka-2) of taking into possession of the blood stained clothes of the injured. PW 8 Constable Chandrapal Singh was a formal witness, who proved chik FIR (Ext. Ka-7) and entry of the same in G.D. (Ext. Ka-8). PW 7 SI Nanhe Ram was the Investigating Officer of the case, who conducted the investigation and after being satisfied that the accused persons committed the crime, submitted charge sheet against the accused persons, the appellant being one of them. 8. PW 6 Dr. B.S. Saini, Physician, Civil Hospital, Roorkee, was posted on 17.04.1997 in the same capacity and at the same place. On 17.04.1997, at 4:45 p.m., he examined the injuries of PW 2 Mohd. Anwar (injured). PW 6 found lacerated wound of 4 x 4 c.m. x depth not probed circular in shape, margin irregular, blackening of margin present, in another scapular area mainly on the right side 16 c.m. below neck with multiple circular lacerated wound in the area of 3.2 c.m. on left and upper part of wound of the size 0.2 x 02. c.m. Injury no. 1 was kept under observation. Two abrasions, both on right side back were found. An abraded contusion of 3.2 c.m., 2 c.m. above the left eyebrow was also found. Injuries no.2, 3 & 4 were simple in nature. Injure no. 1 was caused by fire arm. Injuries no. c.m. Injury no. 1 was kept under observation. Two abrasions, both on right side back were found. An abraded contusion of 3.2 c.m., 2 c.m. above the left eyebrow was also found. Injuries no.2, 3 & 4 were simple in nature. Injure no. 1 was caused by fire arm. Injuries no. 2, 3 & 4 were caused by hard and blunt object. The duration of all injuries was fresh. The radiologist reported, on the basis of x-ray of chest, that multiple rounded opaque shadows were seen in the middle of posterior and upper part of the chest. Apart from proving Ext. Ka-3 and Ext. Ka-4, PW 6 also proved supplementary report (Ext. Ka-9), in which the note appended by the Surgeon was mentioned. The Surgeon noted that the wad and pallets were removed from the wounds of injured. The pallets were going up to vertebral columns and ribs. Internal muscles were burnt and damaged. Injury no. 1 was, thus, grievous in nature. Thus the evidence tendered by PW 6 appreciably corroborated the ocular evidence of PW 2, PW 3 and PW 4. 9. Learned counsel for the appellant drew the attention of this Court towards the contents of the cross-examination of PW 6, and said that the injury sustained by the victim was mentioned in the accidental register and not in the medico-legal register. It may be mentioned here that the entry of the injuries of the victim in the accidental register, was of no help to the accused, in as much as, it was not an accidental case, but a medico legal case. Mere entry of the injuries of the injured in the accidental register does not help the accused-appellant. 10. Learned counsel for the appellant also drew the attention of this Court towards the statement of PW 6, who said that although the injuries sustained by the injured were on the vital part but none of his vital parts were affected. In an identical situation, in the case of Jagga Singh and another vs. State of Punjab, (2011) 1 Supreme Court Cases (Cri) 845, the Hon’ble Supreme Court held, in the peculiar circumstances of that case, that since the gun shot was fired on the victim, which hit him in the leg, the appellant was guilty under Section 325 IPC. In an identical situation, in the case of Jagga Singh and another vs. State of Punjab, (2011) 1 Supreme Court Cases (Cri) 845, the Hon’ble Supreme Court held, in the peculiar circumstances of that case, that since the gun shot was fired on the victim, which hit him in the leg, the appellant was guilty under Section 325 IPC. In another case, Mangal Singh and another vs. Kishan Singh and others, (2011) 1 Supreme Court Cases 303, which is closer to the facts of the instant case, the Hon’ble Apex Court observed that the injury report in the case of (Mangal Singh) showed that all the injuries inflicted on the injured were either on his legs or arms. Indeed, a number of injuries were quite grievous, but it seems the accused were careful not to give any blow on any vital part of the body. Had the intention been to kill him, one or two blows on the head or the neck would have served the purpose. It seems while assaulting him ruthlessly, the accused aimed the blows on the legs and arms apparently to make sure that they would not lead to his death. The Doctor stated before the Court that the injured might have died, if medical care was not given to him, but he did not say the injuries were sufficient in the course of nature to cause death. 11. In the instant case, PW 6 said that although injury no. 1, sustained by the injured was on the vital part, but the vital part was not affected. The Medical Officer nowhere said in his evidence that the injury no. 1 sustained by the injured was sufficient in the normal course to have caused the death of the injured. In the circumstances, taking guidance from the Hon’ble Supreme Court from the ruling of Mangal Singh and another (supra), this Court is of the opinion that the accused Abdul Rehman should be convicted under Section 326 IPC, instead of Section 307 IPC and his sentence should be reduced from seven years to three years along with a fine of Rs. 5000/-, in default of payment of which, he will have to undergo further simple imprisonment for one year. The conviction awarded under Section 452 IPC is not interfered with. 12. 5000/-, in default of payment of which, he will have to undergo further simple imprisonment for one year. The conviction awarded under Section 452 IPC is not interfered with. 12. Whereas the appellant is found guilty of the offences punishable under Section 326 IPC and Section 452 IPC, it is hereby directed that the accused-appellant shall undergo rigorous imprisonment for three years along with a fine of Rs. 5000/-( in default of payment of which he will undergo further imprisonment as was awarded by trial court), in relation to offence punishable under Section 326 IPC and rigorous imprisonment for three years in relation to offence punishable under Section 452 IPC. Both the sentences shall run concurrently. The period already undergone by the accused-appellant in jail during the course of investigation and during the course of trial, shall be set off under Section 428 Cr.P.C. If the fine is realized, the entire sum of Rs. 5,000/- be paid to the injured PW 2 as compensation. Accused-appellant is on bail. His bail is cancelled. He is directed to surrender before the Court below forthwith to serve out the sentence, as was awarded by the Court below and thus modified by this Court. 13. Let a copy of this Judgment along with the Lower Court Record be sent back to the Court below for causing the accused-appellant to surrender and sending him to prison to serve out the sentence as above. 14. With the modification in the sentence as above, the Criminal Appeal is finally disposed of.