JUDGMENT : Hon'ble Umesh Chandra Tripathi, J. 1. This appeal is directed against the judgment and order dated 26.11.1983 passed by Ist Additional Sessions Judge, Jaunpur in Sessions Trial No. 114 of 1983 (Ram Adhar and others Vs. State of U.P.) arising out of Case No. 278 of 1982, Crime No. 143 of 1982 Police Station- Badshahapur, District- Jaunpur, whereby accused-appellant- Ganga Dhar Dubey has been convicted under Section 324 of the Indian Penal Code (hereinafter referred to as 'IPC') and a fine of Rs.400/- and in case of default in payment of fine, he shall undergo rigorous imprisonment (R.I.) of four months. 2. The brief facts of the prosecution case are that on 19.09.1981 at about 8.00 P.M., Mohan Lal Harijan s/o Gangai Harijan, who was sitting in front of his house and talking to some villagers, was fired at with a 'katta' (country-made pistol) by accused-appellant Ganga Dhar Dubey on the exhortation of other three accused who belonged to the same family, due to which he (Mohan Lal) received injuries. He clearly saw the accused in the lantern light, who on the intervention of the villagers, went away from the place of occurrence after extending abuses. 3. After one and a half hours of the occurrence at 09.30 P.M., on the written information (Ex.Ka.1) of injured-informant Mohan Lal Harijan (P.W.2), a First Information Report (F.I.R.) under Section 307 IPC was lodged at Police Station- Badshahpur, District- Jaunpur at Case Crime No.- 143 of 1981 against accused Ram Adhar, Prakash Chand, Ravindra Kumar and Ganga Dhar Dubey, all residents of Village Bhairopur, P.S.- Badshahpur, District- Jaunpur. Thereafter, the investigation of the case was started. 4. The investigation of the case was taken over by Sub-Inspector Sri Phoolchand Ram (P.W.4). He stated that the F.I.R. was lodged in his presence and formal F.I.R. was prepared by constable Raj Bansh Tiwari. He proved writing and signature on it and the same was marked as Ex.Ka.3. He also proved the entry in the General Diary (G.D.) No. 33, which was written by the same constable, copy whereof was marked as Ex.Ka.4. 5. He interrogated the injured-informant Mohan Lal Harijan (P.W.2) and thereafter, sent him to P.H.C., Badshahpur. The letter which was written by him was marked as Ex.Ka.5. On the next day, i.e. 20.09.1981, he inspected the spot and prepared the site plan, which was marked as Ex.Ka.6. 5. He interrogated the injured-informant Mohan Lal Harijan (P.W.2) and thereafter, sent him to P.H.C., Badshahpur. The letter which was written by him was marked as Ex.Ka.5. On the next day, i.e. 20.09.1981, he inspected the spot and prepared the site plan, which was marked as Ex.Ka.6. Thereafter, he recorded the statement of Vijai Bahadur and Mata Prasad (P.W.3). 6. Injured Mohan Lal Harijan was medically examined by Dr. Vidya Sagar Tripathi (P.W.1) on 19.09.1981 at about 10.00 P.M. The following injuries were noted on his person:- 1. Abrasion 1/10'' x 1/10'' on the left upper arm on front 5'' above the left elbow joint. 2. Multiple abrasion on the right thigh in an area of 5'' x 3 1/2'' on the inner aspect 1 1/2'' above the right knee joint. Size of the largest abrasion was 1/10'' x 1/10'' and the smallest was in size of 1/12'' x 1/2''. 7. The doctor opined that the abrasions were fresh and the injuries were simple in nature. He also stated that they were caused by friction against hard object. He proved the injury report and marked the same as Ex.Ka.1. He also identified the thumb impression of the injured Mohan Lal Harijan and also proved the mark of identification noted by him in the said injury report. 8. After completion of the investigation, the Investigating Officer came to the conclusion that the allegations made against the accused are false and they have been falsely implicated in the case due to enmity. Thereafter, he submitted final report. 9. The final report was rejected by the Magistrate concerned and the case was committed to the Court of Sessions. Thereafter, it was made over for trial and disposal to the court of Ist Additional Sessions Judge, Jaunpur. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against all the accused. Therefore, it framed charges against accused Ganga Dhar Dubey under Section 307/34 IPC in alternative under Section 307 IPC, against accused Ram Adhar under Section 307/34 IPC and 109 IPC and against accused Prakash Chand and Ravindra Kumar under Section 307/34 IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried. 10. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried. 10. The prosecution in order to prove guilt of the accused examined as many as four prosecution witnesses, out of whom injured-informant Mohan Lal Harijan (P.W.2) and Mata Prasad (P.W.3) were examined as witnesses of fact while Dr. Vidya Sagar Tripathi (P.W.1) and S.I. Phoolchand Rai (P.W.4) were examined as formal witnesses. Madan Mohan Lal was examined as a court witness (C.W.1). 11. Except as above, no other testimony was adduced, therefore, evidence of the prosecution was closed and statements of the accused were recorded under Section 313 of the Criminal Procedure Code (herinafter referred to as 'Cr.P.C.'), wherein, they denied to have taken part in the crime. Their main defence was that the allottees (Gangai and Jagarnath) were given possession of plot nos. 392/1, 392/2 and 392/4 on 14.02.1982 by the government officials and not earlier, i.e. on 19.09.1981, as claimed by them (allottees). They further claimed that they have been falsely implicated in the case due to enmity. 12. In turn, the defence examined Vijai Bahadur (D.W.1), Kailash Nath Mishra (D.W.2), Mata Prasad (D.W.3), Surya Narayan Mishra (D.W.4) and S.I. Phoolchand Rai (D.W.5) to establish the plea of the alibi. 13. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgment and order. 14. Hence, this appeal. 15. Heard Sri Pradeep Kumar Rai, learned counsel for the appellant and learned A.G.A. for the State. 16. Learned counsel for the appellant contended that the appeal has become infructuous. As per his instructions, appellant Ganga Dhar Dubey had deposited a fine of Rs. 400/- in the trial court at the time of judgment. This fact has been confirmed by the appellant, who is present in the court. 17. Learned A.G.A. contended that the offence is proved beyond reasonable doubt against the appellant. There is no error in the judgment of the trial court. Hence, the appeal is liable to be dismissed. 18. It has to be considered that whether the convict has already undergone the sentence imposed (deposited fine of Rs. 400/-). Where fine is the only punishment, the appeal becomes infructuous and need not be considered on merits. 19. There is no error in the judgment of the trial court. Hence, the appeal is liable to be dismissed. 18. It has to be considered that whether the convict has already undergone the sentence imposed (deposited fine of Rs. 400/-). Where fine is the only punishment, the appeal becomes infructuous and need not be considered on merits. 19. To deal with it, Section 384, 385 and 386 of the Cr.P.C. are relevant, which are as under: 384.-(1) If upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily; Provided that- (a)....... (b)....... (c)....... (2) Before dismissing an appeal under this section, the Court may call for the record of the case. (3)......... 385.- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) ......... (iii) ......... (iv) ......... (2) The Appellate Court shall then send for the record of the case, if such record is not ready available in that Court and hear the parties: Provided that........... 386.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Cour may, if it considers that there is not sufficient ground for interfering, dismiss the appeal, or may- (a) ............. (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) ............... 20. From the perusal of the above provisions of Cr.P.C., it is clear that upon examining the petition of appeal and the copy of the judgment, if the Appellate Court considers that there is no sufficient ground for interference, it may dismiss the appeal summarily. At that stage, perusal of record of case is not necessary. 20. From the perusal of the above provisions of Cr.P.C., it is clear that upon examining the petition of appeal and the copy of the judgment, if the Appellate Court considers that there is no sufficient ground for interference, it may dismiss the appeal summarily. At that stage, perusal of record of case is not necessary. If the appeal is not dismissed summarily under Section 384 Cr.P.C., then at the time of final decision of appeal under Section 386 Cr.P.C., perusal of record of case and consideration of that record by the Appellate Court is mandatory. 21. After perusing the record of case and hearing the appellant and the public prosecutor, if the Appellate Court considers that there is no sufficient ground for interfering in judgment of trial court, it may dismiss the appeal. But in case of conviction, after perusing the record of the case, if the Appellate Court considers that conviction is based on no evidence or acquisition against the accused-appellant is not proved beyond reasonable doubt, it shall record the finding of acquittal even though the appellant had already undergone the sentence imposed on him or the appeal is not pressed. There is no provision of law under which appeal may be dismissed as not pressed or on the ground that the appellant had already undergone the sentence imposed on him and the appeal becomes infructuous. Therefore, the appeal once admitted under Section 384 Cr.P.C. and not summarily dismissed, then it shall be decided on merits. 22. Perusal of injury report Ex.Ka.1 of injured Mohan Lal Harijan reveals that both the injuries caused to him are not only simple in nature but also superficial, which can be easily manufactured or self-inflicted. 23. In injury report Ex.Ka.1, it is not mentioned that injuries have been caused by firearm, but it is mentioned that injuries have been caused by friction against hard object. P.W.1 Dr. Vidya Sagar Tripathi admitted in his cross-examination that if it appeared to him that injury had been caused by firearm, he must have mentioned it in the injury report ( eq>s vxj pksVsa Qk;j vkeZ dh ekywe gqbZ gksrh rks vo'; fy[krk ). This means that at the time of medical examination of injured Mohan Lal Harijan, Dr. Vidya Sagar Tripathi was of the opinion that the injuries have not been caused by firearm. 24. This means that at the time of medical examination of injured Mohan Lal Harijan, Dr. Vidya Sagar Tripathi was of the opinion that the injuries have not been caused by firearm. 24. Injured Mohan Lal Harijan has stated in his statement before the court that on exhortation of co-accused Ram Adhar, Prakash Chand and Ravindra Kumar, accused Ganga Dhar Dubey had fired on him, which caused injury on his right thigh and left upper arm. As per his statement, accused Ganga Dhar Dubey had fired single shot on him. This fact is expressely admitted by P.W.3 Mata Prasad who was sitting along with Mohal Lal Harijan at the time of occurrence. 25. However, in the FIR Ex.Ka.2, injured Mohal Lal Harijan narrated that he sustained firearm injury on both the thighs and on the left hand, but there is no injury on his left thigh. His statement before the court is as below: ge [kM+s gks x, rc & D;ksafd ;s yksx xkyh ns jgs FksA geus dgk dh ljdkj us dCtk fn;k gSA vkSj eSa tehu ugha NksMawxkA brus esa jke v/kkj] izdk'kpUn] o jfoUnz dqekj us yydkjk & ;kuh xaxk/kj dks dh ekj nks lkys dks tku ls [kRe gks tk;sA xaxk/kj us tku ls ekj nsus ds fy, gekjs Åij Qk;j dj fn;kA gekjs nkfgus tka?k o ck,a Hkqtk ds Åij xksyh dh pksVsa yxhA This means that Mohan Lal Harijan had sustained firearm injury in standing position. 26. Injury as alleged to have been sustained by the injured cannot be caused by a single bullet of fire either in standing position or in sitting position. A single bullet cannot cause injury on left upper arm and right thigh simultaneously. For the aforesaid reason, the fact that injured Mohan Lal Harijan had sustained injury by firearm becomes doubtful. 27. As per prosecution version, three plots - plot nos. 392/1, 392/2 and 392/4 belonging to Gaon Sabha were alloted to Gangai Harijan, father of injured Mohan Lal Harijan and Jagarnath, uncle of injured Mohan Lal Harijan. Mohan Lal Harijan in his statement before the court stated that the accused had occupied those plots in an unauthorised manner. On the application of allottee, possession of those plots was delivered to the respective allottee on 17.09.1981 by Lekhpal and Kanoongo on the order of Sub-Divisional Magistrate. Mohan Lal Harijan in his statement before the court stated that the accused had occupied those plots in an unauthorised manner. On the application of allottee, possession of those plots was delivered to the respective allottee on 17.09.1981 by Lekhpal and Kanoongo on the order of Sub-Divisional Magistrate. As a result of this allotment, accused had committed the offence on 19.09.1981 at about 8.00 P.M. 28. On this fact, evidence of C.W.1 Madan Mohan Lal (Lekhpal) is very much material. He has admitted in his cross-examination that on his first visit, possession had not been delivered to the allottee. On his second visit in February 1982 in the presence of police, possession was delivered to the allottee. S.I. Phoolchand Ram, by producing G.D. No. 12 (Ex.Kha.1) dated 13.02.1982, 9.15 P.M. deposed before the court that on 13.02.1982 in his presence, on the order of Sub-Divisional Magistrate, the possession of allotted land was delivered to the allottee. 29. From the statement of C.W.1 Madan Mohan Lal (Lekhpal) and D.W.5 Phoolchand Ram (S.I.), it is apparent that possession of allotted land was delivered to the allottee on 13.02.1982 after about five months of this occurrence. From the statement of both the witnesses, it is also apparent that the allottees- Gangai and Jagarnath were not in possession of the disputed land on the date of the occurrence, that is to say, 19.09.1981. So, there was no reason for the accused to go to the residence of informant Mohan Lal Harijan and ask them to vacate the land alloted to them. Therefore, the prosecution version that due to delivery of possession of allotted land to allottee on 17.09.1981 accused persons have committed this offence on 19.09.1981, cannot be relied upon. 30. From the above facts and circumstances of the case, it appears more probable that informant Mohan Lal Harijan has made false allegation against the accused to pressurise them to vacate the land in dispute. 31. It must be noted that on the same evidence, the trial court has acquitted co-accused Ram Adhar, Prakash Chand and Ravindra Kumar from the charges made against them. 32. It must also be noted that after the investigation, the Investigating Officer submitted final report in reference to all the accused with the conclusion that the allegation made in the F.I.R. is false and has been made with the intention to harass the accused. 33. 32. It must also be noted that after the investigation, the Investigating Officer submitted final report in reference to all the accused with the conclusion that the allegation made in the F.I.R. is false and has been made with the intention to harass the accused. 33. For the aforesaid reasons, charge against appellant Ganga Dhar Dubey is not proved beyond reasonable doubt. 34. The trial court while recording conviction against the appellant Ganga Dhar Dubey failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained. 35. The appeal is accordingly allowed. Conviction of appellant Ganga Dhar Dubey under Section 324 IPC is set aside and he is acquitted. 36. The appellant is on bail. He need not surrender. His bail bonds stand discharged.