JUDGMENT : Hon'ble Mrs. Vijay Lakshmi,J. This criminal appeal is directed against the judgment and order dated 8.11.1983 passed by the III Additional Sessions Judge, Allahabad, in S.T. No. 448 of 1981 whereby convicting and sentencing the appellants Guddu alias Mohamad Sadiq and Ibn-e-Ahmad for three years R.I. u/s 307 I.P.C. and appellants Saddan and Sabir for two years R.I. u/s 307 I.P.C. read with section 34 I.P.C. 2. Heard Shri Satish Trivedi, learned Senior Advocate, assisted by Shri Ajai Kumar Pandey on behalf of the appellants and Ms. Anjum Haq, learned AGA on behalf of the State. Perused the record. 3. The prosecution case in brief is that injured Medi Lal, his brother Chhedi Lal, who is the first informant, and the accused appellants all are residents of Village Beli, Allahabad, which is mostly populated by the members of two communities Muslims and Yadavs. There is persistent enmity between both the communities living in village Beli. The injured and the first informant belong to Yadav community whereas the accused-appellants are Muslim. On 18.5.1978 at 8.30 A.M. the injured Medi Lal was returning back to his village on a bicycle after selling milk in the city. His brother Chhedi lal and three more persons namely Sewak, Lallu and Ramdas were also following him at some distance. The accused-appellants Guddu @ Mohd. Sadiq, Ibn-e-Ahmad, Saddan and Mohd. Sabir all were sitting in front of the house of Buddhu Miyan on a cement bench. As soon as the injured Medi Lal passed from there the appellant Mohd. Sabir and Saddan exhorted with the words ^^vkt ekj yks lkys dks vPNk ekSds ls fey x;k gS tkus u ikos^^ . Hearing this, Medi Lal tried to run away but the accused Guddu and Ibne Ahmad fired on him from the country made pistols they were carrying, which caused injuries on the head, back and hand of the injured. Saddan had also fired from the country made pistol, somehow the fire shot by Saddan got missed. Medi Lal got badly injured and fell down on the road in front of the house of Chhittu Miyan. Hearing sound of firing, villagers rushed to the spot. The accused-appellants ran towards Muirabad. One of them namely Sabir was apprehended by the complainant and others at some short distance. Other accused-appellants made their escape good. Injured Medi Lal was then taken to T.B. Sapru Hospital. Hearing sound of firing, villagers rushed to the spot. The accused-appellants ran towards Muirabad. One of them namely Sabir was apprehended by the complainant and others at some short distance. Other accused-appellants made their escape good. Injured Medi Lal was then taken to T.B. Sapru Hospital. A written report of the occurrence was lodged by his brother Chhedi Lal at Police Station Cantonment at 9.45 A.M. on the same day (the occurrence is of 8.30 A.M.). On the basis of the written report a case was registered at Case Crime No. 71 of 1978 u/s 307/34 I.P.C. against the accused-appellants and the matter was investigated. 4. The injured Medi Lal was examined by Dr. H.S. Tiwari (PW1) at 9.00 A.M. and following injuries were found on his body: 1. Firearm wound 1/2" x1/2" x depth kept under observation on right side of head 1/2" behind pinna, directed forward. 2. Firearm wounds fur in number size 1/4" x 1/4" x through and through the right pinna- directed forward. 3. Firearm wound 1/3" x1/4" x depth, kept under observation, 1.5" behind injury no. 1. 4. Firearm wounds four in number 3/4" x3/4" through and through the right pinna, margins irregular, lacerated and everted- communicating with the wounds of injury no. 2. 5. Firearm wounds eight in number in an area of 2" X 2" on the right side back just away from midline from the level of lower angle of scapula and upwards- 1/5" x1/5" x depth, kept under observation. 6. Firearm wounds eight in number in an area of 3.5" x 3" on the outer of right arm size varying from 1/5" x 1/5" to 1/4" x 1/4" - Depth. Kept under observation. 7. Firearm wounds fourteen in number-size varying from 1/5" x1/5" to 1/2" x 1/2"- Depth was kept under observation in an area of 3" x 3" on the front of right palm and right forearm and outer aspect of right forearm from 4" below the elbow and downwards. Margins of all the wounds were irregular and lacerated and except injury no. 4 in all others they were inverted. Blackening around the wounds was present. There was presence of soakage from the wounds. Nature of the injuries was kept under observation. X-ray of skull was advised. X-ray of right forearm and hand and chest was also advised. S-ray of right arm was also advised. Duration was fresh. 4 in all others they were inverted. Blackening around the wounds was present. There was presence of soakage from the wounds. Nature of the injuries was kept under observation. X-ray of skull was advised. X-ray of right forearm and hand and chest was also advised. S-ray of right arm was also advised. Duration was fresh. The injuries had been caused by firearm weapons. 5. The investigation of the case was entrusted to S.I. Guru Dayal Singh (PW5). The I.O. reached the spot, he collected blood stained and plain earth and prepared site plan. He also recovered the bicycle, milk can and bucket belonging to the injured Medi Lal from the spot and prepared the recovery memos of all the aforesaid items. The injured Medi Lal was shifted to Medical College from T.B. Sapru Hospital, Allahabad. The I.O. recorded the statement of the injured on 19.5.1978 and also statements of some witnesses. Thereafter the first I.O. S.I. Guru Dayal Singh was transferred from P.S. Cantt. and the second I.O. Sri Hriday Narayan Singh (PW4) continued further the investigation. After concluding it, he submitted charge sheet against all the accused-appellants. 6. The case being triable by the court of Sessions, it was committed to the Sessions Court where charges against all the four accused-appellants were framed u/s 307 read with 34 I.P.C. from which the appellants denied and claimed their trial. 7. The prosecution in order to prove its case examined five witnesses in all. PW1 is Dr. H.S. Tiwari, who had examined the injured Medi Lal on the date of the occurrence, PW2 is the injured Medi Lal himself, PW3 is the first informant Chhedi Lal, who is the brother of the injured Medi Lal, PW4 is the second I.O. Sri Hriday Narayan Singh and PW5 is the first I.O. S.I. Guru Dayal Singh. 8. The injured Medi Lal, who has been examined as PW2, has supported the prosecution case in his testimony during trial. The first informant PW3, Chhedi lal, has also supported the prosecution case and has proved the written report Ext. Ka2 and recovery memos Ext. Ka3 and Ext. Ka4. PW4 and PW5 are the investigating officers, who have stated about investigation made by them. 9. After conclusion of the statements of the prosecution witnesses, the statements of the accused u/s 313 were recorded in which they stated about their false implication due to enmity. Ka2 and recovery memos Ext. Ka3 and Ext. Ka4. PW4 and PW5 are the investigating officers, who have stated about investigation made by them. 9. After conclusion of the statements of the prosecution witnesses, the statements of the accused u/s 313 were recorded in which they stated about their false implication due to enmity. The accused Ibne Ahmad stated that injured Medi Lal was shot by someone else at some other place and time, however, he falsely implicated the appellants. 10. No evidence was adduced by the appellants in their defence. 11. Learned trial court after a detailed discussion of the evidence found the charges proved against all the appellants and accordingly held them guilty u/s 307 read with 34 I.P.C. and sentenced them as mentioned in the earlier part of this judgment. 12. The legality and correctness of the aforesaid judgment has been challenged in this appeal on the following grounds by learned Senior Advocate Sri Satish Trivedi appearing on behalf of the appellants: 1. The learned trial court, without a proper appreciation of evidence, has passed the impugned judgment, which is liable to be set aside. 2. There is no immediate motive with the appellants to commit the offence. The motive shown by the prosecution is that the members of Muslim community and Yadav community were inimical to each other and due to that enmity, the occurrence took place is very weak. Learned counsel has contended that the aforesaid motive does not appear reliable and trustworthy. 3. In the FIR there is mention of three eyewitnesses namely Sewak, Lallu and Ramdas, who were following the injured at some distance, however, none of them has been produced during trial to support the prosecution case. 4. Only two witnesses of fact have been produced in this case and both are highly interested witnesses. No independent witness either of the occurrence or of the recovery of blood stained and plain earth, bicycle, milk can and bucket has been produced by the prosecution. 5. Neither the country made pistol nor any cartridge has been recovered from the possession of any of the appellants. 6. No empty cartridge has been found on the spot, which belies the place of occurrence. 7. Injures sustained by the injured are not grievous or dangerous to life. 5. Neither the country made pistol nor any cartridge has been recovered from the possession of any of the appellants. 6. No empty cartridge has been found on the spot, which belies the place of occurrence. 7. Injures sustained by the injured are not grievous or dangerous to life. There is no evidence that the appellants had any intention to kill the injured, therefore the present case, to a maximum, travels up to the offence punishable u/s 324 I.P.C. and section 307 I.P.C. is not made out against the appellants due to lack of its essential ingredient. 13. On the aforesaid grounds it has been contended by learned counsel for the appellants that the appeal be allowed and the impugned judgment be set aside. 14. Per contra, learned AGA has vehemently opposed the appeal by contending that the injured has suffered as many as seven firearm injuries, blackening round the wounds has been found and the duration was found fresh. The injury report has been duly proved by PW1 Dr. H.S. Tiwari. Learned AGA has further contended that it is a case of direct evidence, therefore, motive is irrelevant. On the aforesaid grounds, it has been prayed by learned AGA that appeal be dismissed. 15. Considered the rival submissions made by learned counsel for both the parties. 16. There is no doubt that only two witnesses of fact have been produced by the prosecution in this case i.e. the injured and his real brother Chedi Lal, who is the first informant also, but only on this ground, the prosecution case cannot be discarded. 17. Hon'ble Supreme Court in Bhajan Singh @ Harbhajan Singh Vs. State of Haryana (Appeal No. 562 of 2007) has observed as under:- "Law does not prohibit to place reliance upon the evidence of closely related persons, rather the requirement is that evidence of such persons must be scrutinized with caution and care. The evidence of an injured witness has to be relied upon unless the injuries are found to be superfluous self inflicted just to create evidence against the other party." 18. By the statements of PW2 (injured) it is evident that he has enmity with several other persons. The evidence of an injured witness has to be relied upon unless the injuries are found to be superfluous self inflicted just to create evidence against the other party." 18. By the statements of PW2 (injured) it is evident that he has enmity with several other persons. Moreso, the statement of PW2 suffers from some apparent discrepancy too as he has earlier denied that he was ever involved in any case u/s 107/116 Cr.P.C. but later on he has admitted that one case u/s 107/117 is pending against him. His statement also suffers from some improvements as the facts stated by him in the court does not find corroboration with his earlier statement recorded by the I.O. u/s 161 Cr.P.C. and when asked in cross examination about that, he has stated that he had not given any such statement to Daroja Ji and cannot assign any reason as to how it was written. 19. In so far as the 'motive' is concerned, there is no doubt that in the cases of direct evidence, the motive pales into insignificance. However, if the witnesses also state about the motive behind the occurrence in their testimony, the court may consider about its relevancy. 20. A perusal of the statements of PW2 and PW3, who are the only witnesses of fact in this case, shows that both of them have stated that the Muslims and Yadavs both communities reside at Beli Gaon and there is long standing enmity between both the communities. Earlier too some incidents and disputes had taken place between both the communities. It is worth mentioning that both the witnesses have given a general statement about earlier disputes between Yadavs and Muslims and no incident or dispute has been specified either by PW2 or PW3. Thus it is clearly evident that there was no immediate motive with the appellants to inflict gunshot injuries to Medi Lal, who was returning to his home after selling milk in the city. 21. A perusal of the statements of both the witnesses also shows that the allegation against each appellant is that of a single fire. Thus it is clearly evident that there was no immediate motive with the appellants to inflict gunshot injuries to Medi Lal, who was returning to his home after selling milk in the city. 21. A perusal of the statements of both the witnesses also shows that the allegation against each appellant is that of a single fire. The relevant part of statement of the injured Medi Lal is reproduced below:- **tSls gh eSa NksVw ds edku ds lkeus igqWpk oSls gh lkfcj o ln~nu us yydkjk** vkt bls tku ls ekj yks tkus u ik;s vPNk ekSdk gSA** eSaus QkSju ihNs ?kwe dj ns[kk fd ln~nu] xqM~Mw o bCus vgen vius gkFkksa esa ns'kh fiLrkSy fy;s FksA eSaus Hkkxus dh dksf'k'k dh rks xqM~Mw us nkSM+dj eq>ls nks QhV dh nwjh ij ls eq> ij fiLrkSy ls Qk;j dj fn;kA fQj QkSju gh tc eSaus viuk nk;k Åij mBk;k rks bCus vgen us esjs Åij fiLrkSy ls Qk;j dj fn;kA fQj QkSju gh ln~nu us Hkh esjs Åij Qk;j dj fn;k ij ln~nu dh xksyh esjs 'kjhj esa ugha yxhA** 22. Thus it is clearly evident that there is no repetition of fire. Had there been any intention to kill the injured, the appellants might have repeated the fire shots. 23. It is also evident that though the injuries were kept under observation and x-ray was advised, no supplementary (x-ray) report has been filed by the prosecution. 24. There is no doubt that the injured Medi Lal has sustained gunshot injuries. The injured has specifically named the appellants as the persons, who had fired shots on him and as per well settled legal position, the statement of injured witness should be relied upon because the injured will never falsely implicate an innocent, while exonerating the real culprit. In a catena of judgments the Hon'ble Apex Court has laid down the law that minor discrepancies cannot make evidence of injured witness unacceptable, when his evidence as a whole has a ring of truth. Viz Suresh Sitarah Sarve Vs. State of Maharashtra, AIR 2003 SC 344 , Kailas & others Vs. State of Maharashtra (2011)1 SCC 793 , Abdul Sayeed Vs. State of M.P. (2010)10 SCC 259 . 25. Thus the complicity of the appellants in the incident can not be doubted and the appellants are found responsible for causing firearm injuries to the injured. 26. State of Maharashtra, AIR 2003 SC 344 , Kailas & others Vs. State of Maharashtra (2011)1 SCC 793 , Abdul Sayeed Vs. State of M.P. (2010)10 SCC 259 . 25. Thus the complicity of the appellants in the incident can not be doubted and the appellants are found responsible for causing firearm injuries to the injured. 26. Now the question is whether the prosecution has proved commission of offence punishable u/s 307 I.P.C.? In other words whether the act done by the accused-appellants comes under section 307 I.P.C. or section 324 I.P.C. 27. For the sake of convenience both these sections of I.P.C. are reproduced below:- "307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]" "324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 28. On a careful perusal of both the aforesaid provisions, the distinction between both the offfences can be summarized as under:- The offence u/s 307 I.P.C. is a very serious offence and it requires some factors to be proved, as are needed to prove an offence u/s 302 I.P.C. except that in this case the act falls short of the death of the injured, which is necessary u/s 302 I.P.C. The offence of attempt to commit murder punishable u/s 307 I.P.C. is constituted by the concurrence of 'mensrea' followed with 'actus-reus'. An intent per-se is not an attempt. The attempt for the purpose of section 307 I.P.C. should stem from a specific intention to commit murder and thus blameworthy condition of mind may be gathered from direct or circumstantial evidence including the conduct of the accused. 29. Sometimes it becomes very difficult to differentiate between an offence u/s 307 I.P.C. and others like u/s 324, 325, 326 etc. of the I.P.C. In both the cases injuries may be there. There may be existence of motive or intention or knowledge on the part of the wrong doer. Care has, therefore, to be taken that in such cases there may not be wrong application of the section, looking to the serious consequences following from such an error, as the penalty prescribed under the aforesaid section vary to a great extent. 30. Now testing the facts of the present case on the touchstone of the above discussed legal position, it is not disputed that none of the appellants has repeated the fire shot, it is also not disputed that there was no recovery of any empty cartridge from the spot. Statement of PW1 Dr. H.S. Tiwari also shows that he is unable to give any opinion about the distance from which the fires were shot and also about the direction of fire shots. No pellet was recovered from the body of the victim during his medical examination, no firearm has been recovered from the possession of either of the appellant. There was no immediate motive behind the occurrence and the long standing enmity between two communities of Muslims and Yadavs cannot be a ground for committing the murder of the injured by the appellants. 31. The aforesaid attending circumstances clearly show that there was no intention with the appellants to kill the injured. There was no immediate motive behind the occurrence and the long standing enmity between two communities of Muslims and Yadavs cannot be a ground for committing the murder of the injured by the appellants. 31. The aforesaid attending circumstances clearly show that there was no intention with the appellants to kill the injured. In the absence of 'mensrea' or the guilty intention to kill, which is the most essential ingredient of the offence u/s 307 I.P.C. it cannot be said that offence u/s 307 I.P.C. is made out and instead of section 307 I.P.C. the appellants are found guilty under section 324 I.P.C. 32. The punishment provided u/s 324 I.P.C is imprisonment extending to three years or fine or both. 33. Keeping in view the fact that the appeal is pending since the year 1983, the occurrence is of the year 1981 and the matter has become too old, it appears expedient in the interest of justice that a lenient view should be taken while punishing the appellants and instead of sending all of them to jail, fine (payable to victim) be imposed on each of them. 34. Considering all the facts and circumstances of the case, it appears that the ends of justice would meet, if each of the appellant is punished with a fine of Rs. 15000/-, which they shall deposit in the court of C.J.M, Allahabad, within a period of six weeks from today. The entire amount of fine so deposited by the appellants shall be given to the injured-victim of this case forthwith. 35. Accordingly the appeal is partly allowed. 36. It is made clear that in case of default in depositing the amount fine within the stipulated period, the appellants shall have to undergo rigorous imprisonment for one year. 37. Let the lower court's record along with a copy of this judgment be sent back to the C.J.M., Allahabad, for necessary compliance.