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Allahabad High Court · body

2020 DIGILAW 619 (ALL)

Rakesh v. State of U. P.

2020-02-26

ALI ZAMIN, B.AMIT STHALEKAR

body2020
JUDGMENT : Ali Zamin, J. 1. Heard Sri A.B.L. Gaur, learned Senior Counsel assisted by Sri Saurabh Gaur for the appellants and the learned A.G.A. for the State. 2. This appeal has been preferred being aggrieved from the judgment and order dated 22.05.2002 passed in Session Trial No. 62 of 1998 (State vs. Rakesh and others) arising out of Case Crime No. 2 of 1997, under Sections 323, 324, 307 read with Section 34 and 504 I.P.C., Police Station Mursan, District Aligarh by which learned Additional Sessions Judge, Court No.13, Aligarh has convicted the accused-appellants and sentenced each appellant to undergo life imprisonment and fine of Rs. 10,000/- under Section 307/34 I.P.C. and in default of payment of fine further to undergo one year simple imprisonment, three months rigorous imprisonment and fine of Rs. 500/- for each offence under Sections 323 and 504 I.P.C. In default of fine to undergo simple imprisonment for a month to each under Sections 323/34 and 504 I.P.C. 3. During the pendency of the appeal appellant no. 4 Brindavan died and appeal against him has been dismissed as abated vide order dated 10.04.2019. Hence, this appeal is confined only against the applicant no. 1 Rakesh, appellant no. 2 Gopal and appellant no. 3 Mohan. 4. According to prosecution on 08.01.1997 injured Deshraj was looking after his crops in the field, when at about 12:00 hours of the day Rakesh, Gopal, Mohan sons of Brindavan and Brindavan came there and forcefully started filling fodder (kutti) from his burgi (small turret). On his objection accused persons started abusing and beating the injured Deshraj, accused Gopal fired shot from his illegal country-made pistol which hit his left leg. Mohan beat him with stick (lathi). Ram Mohan reached the spot otherwise they would have killed him. Jagdish son of Siya Ram, Shiv Shankar son of Bhagwandas, Chokhey Lal son of Jhabba Ram and others have witnessed the incident. Accused Jagdish is resident of Navipur and other accused are resident of village of the injured. 5. On the basis of written report (Ext. Ka-1) lodged by informant Komal Prasad on 08.01.1997 at 12:30 P.M. chik F.I.R. (Ext. Ka-4) was registered u/s. 323, 504, 324 and 307 I.P.C.. Investigation of the case was entrusted to S.I. S.M. Husain (P.W. 7) and G.D. entry (Ext. Ka-5) was also prepared on the same day. 5. On the basis of written report (Ext. Ka-1) lodged by informant Komal Prasad on 08.01.1997 at 12:30 P.M. chik F.I.R. (Ext. Ka-4) was registered u/s. 323, 504, 324 and 307 I.P.C.. Investigation of the case was entrusted to S.I. S.M. Husain (P.W. 7) and G.D. entry (Ext. Ka-5) was also prepared on the same day. Injured Deshraj was sent to P.H.C., Mursan after preparing the majrubi chitthi along with constable Bhure Singh, where Dr. Ramveer Singh (P.W. 5) examined the injured on 08.01.1997 at 1:30 P.M. and prepared injury report Ext. Ka-3, according to which following injuries were found on the body of the inured. 1. Gun shot wound of entry of size 2 c.m. x 1.5 c.m. muscle deep left thigh middle side 16 c.m. above medial end of left knee below palpable. No wound of exit Advised x-ray. 2. Contusion of size 2.5 c.m. x 1.5 c.m. back of right shoulder joint above supramedial angle reddish in colour. 3. Contusion 6 c.m. x 2 c.m. right side of chest back just below inferior angle reddish in colour. 4. Contusion 2 c.m. x 1 c.m. left side back and supramedial angle. Injury no. 1 kept under observation and advised x-ray. Injury nos. 2, 3 and 4 are simple in nature. Injury no. 1 is caused by fire arm weapon while injury nos. 2, 3 and 4 are caused by hard and blunt object. 6. Investigating Officer observing necessary formalities prepared spot map (Ext. Ka-6) on the pointing of the informant Komal Prasad (P.W. 1) and after completing the investigation filed charge sheet (Ext. Ka-7) under Sections 323/34, 324/34, 307/34 and 504 I.P.C. against accused persons before the court of C.J.M., Aligarh, who took cognizance of the case and committed accused to the court of sessions for trial where the Case Crime No. 2 of 1997 was registered as Session Trial No. 62 of 1998, from where it was transferred to the court of Additional Sessions Judge-13th, who framed charge under Section 323/34, 324/34, 504 and 307/34 I.P.C. against the accused persons. 7. Prosecution to prove charge against the accused persons produced seven witnesses. P.W. 1 Komal Prasad informant, P.W. 2 Deshraj injured and Ram Mohan (P.W. 3) are the witnesses of fact, P.W. 4 Dr. R.P. Gupta conducted x-ray, P.W. 5 Dr. 7. Prosecution to prove charge against the accused persons produced seven witnesses. P.W. 1 Komal Prasad informant, P.W. 2 Deshraj injured and Ram Mohan (P.W. 3) are the witnesses of fact, P.W. 4 Dr. R.P. Gupta conducted x-ray, P.W. 5 Dr. Ramveer Singh conducted medical examination of the injured, P.W. 6 Sri Ram, scribe of chik and G.D. and P.W. 7 S.M. Husain I.O. are the formal witnesses. After examination of prosecution witnesses, statement of the accused persons were recorded under Section 313 Cr.P.C. In their statement under Section 313 Cr.P.C., they have stated that on account of enmity case proceeded against them. Accused persons have produced D.W. 1 Dr. V.P. Gupta in their defence. 8. After hearing the parties and perusal of the record the Additional Sessions Judge-13th, Aligarh passed the impugned judgment and order, hence this appeal. 9. Learned counsel for the appellants submits that according to prosecution Gopal had country-made pistol, Mohan had 'Lathi', Brindavan and Rakesh were unarmed. Accused persons beat Deshraj with leg and fists. Gopal fired from country-made pistol upon the injured, Mohan beat him with 'Lathi'. In the first information report Jagdish, Shiv Shankar, Chokhey Lal are alleged eye witnesses of the incident but no independent witness has been produced by the prosecution, only son and grandson interested and related witnesses have been produced which casts a doubt on the prosecution case. Next submission is that according to injured from a distance of near about one and half hand accused Gopal had fired shot at him and as per medical jurisprudence if injury is caused within a distance of five feet then blackening and tattooing will be present but as per injury report Ext. Ka-3 in the present case no blackening and tattooing has been found. Further alleged injury is not found through and through injury. In that situation pellets would have been found in the injury. But as per X-Ray report (Ext. Ka-2.), no abnormality has been found, therefore, he submits that injury as alleged is also not proved. He further submits that as per injury report fire arm injury has been found on the left thigh, therefore, it cannot be said that there was intention to kill the injured. But as per X-Ray report (Ext. Ka-2.), no abnormality has been found, therefore, he submits that injury as alleged is also not proved. He further submits that as per injury report fire arm injury has been found on the left thigh, therefore, it cannot be said that there was intention to kill the injured. He also submits that accused Gopal was admitted in Bagla Civil Hospital, Hathras on 08.01.1997 at 08.15 A.M. and he was discharged on 10.01.1997 at 09.00 A.M., which is proved by D.W. 1 Dr. V.P. Gupta, therefore, accused Gopal was not present at the alleged time of the incident. Lastly, he submits that injured P.W. 2 Deshraj has accepted that his wife had purchased six bighas land from Jagdish although he has denied knowledge of agreement to sell of the land executed by Panna Lal in favour of Jagdish and the agreement executed by Panna Lal in favour of Jagdish was cancelled by the High Court. But he has admitted that in respect of the six bighas land, which was purchased by his wife, Panna Lal has executed a sale deed before the incident in favour of accused and their sister Rajvati. Thus, it becomes clear from the evidence that there was enmity between the parties and that is why the accused persons have been falsely implicated in the case. 10. Per contra learned A.G.A. submits that it is a case of broad day light incidence. Prompt F.I.R. has been lodged regarding the incident. Doctor has opined that fire arm injury has been caused to the injured. Prosecution version is supported by medical evidence also. From the evidence on record the causing of the incident by the accused persons is proved. Witnesses have stated that with intention to kill, accused Gopal had fired upon the injured. By chance the injury was caused on a non-vital part but intention of causing fatal injury is clear. Learned trial judge has rightly convicted and sentenced the appellant and no interference is required by this Court. 11. As per first information report (Ext. Ka-4) incident occurred on 08.01.1997 at 12.00 hours of the day regarding which information was given at 12.30 P.M. on 08.01.1997. P.W. 6 Sri Ram has stated that on the written report of informant Komal Prasad had registered Case Crime No. 2 of 1997, under Sections 323, 504, 324, 307 I.P.C. of which chik no. Ka-4) incident occurred on 08.01.1997 at 12.00 hours of the day regarding which information was given at 12.30 P.M. on 08.01.1997. P.W. 6 Sri Ram has stated that on the written report of informant Komal Prasad had registered Case Crime No. 2 of 1997, under Sections 323, 504, 324, 307 I.P.C. of which chik no. 2 of 1997 is in his writing and signature and has been proved by him as Ext. Ka-4. Relating to it an entry was made in the G.D. at serial no. 24 on 08.01.1997 to which also he has proved as Ext. Ka-5. From his cross-examination nothing has been extracted so that inference may be drawn that on 08.01.1997 at 12.30 P.M. he did not register Case Crime No. 2 of 1997, under Sections 323, 504, 324, 307 I.P.C.. 12. According to written report (Ext. Ka-1), the incident had occurred at about 12.00 hours of the day on 08.01.1997. This fact has been supported by P.W. 1 Komal Prasad. In cross-examination too at page 17 of the paper book he has stated that the incident occurred at 12.00 hours of the day. He had proceeded for Police Station at 12.00 hours of the day and reached the Police Station at 12.30 P.M. He has further stated that Police Station from his village is at a distance of 1/2 km. and he took his father on foot taking him on a cot. He has also stated that in scribing the report 4-5 minutes were taken. From his cross-examination nothing has been extracted so that an inference can be drawn that incident did not occur at about 12.00 hours of the day. Injured P.W. 2 Deshraj also has stated that near about three years before the incident had occurred at 12.00 hours of the day. In cross-examination he has stated that the investigating officer recorded his statement at about 12.30 P.M.. P.W. 3 Ram Mohan has also stated that near about four years earlier, the incident had occurred at 12.00 hours of the day. From cross-examination of P.W. 2 Deshraj and Ram Mohan nothing has been extracted so that any adverse inference can be drawn. Thus, on the point of occurrence of incident at 12.00 hours of the day and lodging first information report at 12.30 P.M. prosecution evidence is consistent, corroborative to each other. 13. As per chik report (Ext. From cross-examination of P.W. 2 Deshraj and Ram Mohan nothing has been extracted so that any adverse inference can be drawn. Thus, on the point of occurrence of incident at 12.00 hours of the day and lodging first information report at 12.30 P.M. prosecution evidence is consistent, corroborative to each other. 13. As per chik report (Ext. Ka-4), distance of Police Station from the place of incident is 05 kms.. P.W. 1 Komal Prasad in his cross-examination has stated that Police Station from his village is at a distance of 1/2 km. Thus, as per statement of the informant and chik report there is difference regarding distance of Police Station from the village but from the prosecution evidences as discussed above, it is established that first information report has been registered at 12.30 P.M.. Regarding occurrence of incident the witnesses have stated the time of incident on the basis of estimation as is evident from Ext. Ka-1 also, in which the time of incident has been mentioned as about 12:00 hours of the day. Therefore, on the basis of difference of distance between Police Station and village as observed above registration of the case at 12.30 P.M. cannot be doubted. Thus, in the facts and circumstances of the case, it is established that regarding incident at 12:00 A.M. F.I.R. has been lodged promptly without deliberation and consultation. 14. Admittedly, P.W. 1 Komal Prasad is the son of injured Deshraj and P.W. 3 Ram Mohan is the son of informant Komal Prasad. Therefore, witnesses produced by the prosecution are related to each other. 15. In the case of State of Himachal Pradesh vs. Pardeep Kumar and others, (2018) 13 SCC 808 , Hon'ble Supreme Court in paragraph 5 of the judgment has held as under: "5... So far as examination of independent witnesses in support of the prosecution case is concerned all that would be necessary to say in this regard is that examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case..." 16. In the case of Bhajan Singh @ Harbhajan Singh & Ors. vs. State of Haryana, 2011 (4) Supreme 639 , Hon'ble Supreme Court in para 26 of the judgment has held as under: "26. Evidence of a related witness can be relied upon provided it is trustworthy. In the case of Bhajan Singh @ Harbhajan Singh & Ors. vs. State of Haryana, 2011 (4) Supreme 639 , Hon'ble Supreme Court in para 26 of the judgment has held as under: "26. Evidence of a related witness can be relied upon provided it is trustworthy. Such evidence is carefully scrutinised and appreciated before reaching to a conclusion on the conviction of the accused in a given case." 17. In Sadayappan @ Ganesan vs. State, represented by Inspector of Police, the Hon'ble Supreme court in para 11 of the judgment has held as under: "11. Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished." 18. In view of the above law laid down by Hon'ble Supreme Court we have to carefully scrutinize and appreciate evidence of witnesses as to whether they are trustworthy as well as whether witnesses will derive some benefit from the result of litigation in seeing the accused persons punished. 19. On going through the evidence of P.W. 1 Komal Prasad, P.W. 2 Deshraj and P.W. 3 Ram Mohan we find that the witnesses are not likely to derive any benefit if accused are punished. 20. P.W. 1 Komal Prasad has stated that he knows Maya Devi. Maya Devi had lodged report against him under Sections 323, 324 I.P.C.. He has also stated that a 'Marpeet' was committed with him regarding which he had lodged report, thereafter Maya Devi also lodged report. In the case of Maya Devi, Gopal was witness and in his report he was accused. He has also stated that on the basis of report by Mohan a case is pending under Section 307 I.P.C. against him, his son and his brother of which also there is cross case pending against Mohan. He has further stated that he knows Jagdish of his village but he has no knowledge whether Panna Lal had executed any agreement to sell for ten and half bighas land in favour of Jagdish. He has further stated that he knows Jagdish of his village but he has no knowledge whether Panna Lal had executed any agreement to sell for ten and half bighas land in favour of Jagdish. He has admitted that his mother's name is Asharfi Devi and 28 years before the incident his mother Asharfi Devi had purchased land from Jagdish. It is not in his knowledge that any case is pending regarding this land between Jagdish and Panna Lal. He has also stated that it is wrong to say that he has purchased this ten and half bighas land from Jagdish. True fact is that he has purchased seven and half bighas land from Jagdish. It is not in his knowledge that this seven and half bighas land was sold to accused persons and their sister Rajvati. He has also stated that regarding that land litigation is pending between Panna Lal and him. He has not arrayed accused persons as party in the case. 21. P.W. 2 Deshraj in cross-examination has also stated that name of his wife is Asharfi Devi. He does not know Panna Lal. He has no knowledge about his land in the village and it is also not within his knowledge that Panna Lal executed a sale deed of seven and half bighas land in favour of Jagdish. His wife purchased six bighas land from Jagdish thirty years before the incident. He has no knowledge about the litigation on this land between Panna Lal and Jagdish and he has denied that Jagdish lost the case from the court of Munsif, Hathras and the High Court and has stated that the case was dismissed in default. He has further stated that it is not in his knowledge that the agreement to sell executed by Panna Lal in favour of Jagdish was cancelled by the High Court or not. He has admitted that before the incident in respect of six bighas land which was purchased by his wife Asharfi Devi a sale deed was executed by Panna Lal in favour of accused and their sister Rajvati. On purchase of his land by the accused persons he did not feel any ill-will because they had purchased the same legally. He has also stated that accused persons are not in possession after purchase of the land. Land is in possession of 'Supurdgar'. On purchase of his land by the accused persons he did not feel any ill-will because they had purchased the same legally. He has also stated that accused persons are not in possession after purchase of the land. Land is in possession of 'Supurdgar'. Above statements of witnesses P.W. 1 Komal Prasad and P.W. 2 Deshraj show that there was a litigation between informant and accused about the land purchased by the wife of the injured and criminal cases between Komal Prasad and Mohan are pending. Thus, it is inferred that the witnesses had inimical terms with the accused. 22. It is well settled that enmity is a double edged weapon and it cuts both sides. On the basis of enmity on the one hand one can be falsely implicated and on the other hand one can cause incident also. Therefore, keeping in mind, we have to analyse the evidence of prosecution witnesses. 23. P.W. 1 Komal Prasad has stated that his father was on the field at 12.00 hours of the day to look after the field. Gopal, Mohan, Rakesh and Brindavan of the village were taking fodder from 'Burgi' on his filed. When his father objected they started abusing and beating him with legs, fists and 'Danda'. Gopal with intention to kill fired with illegal country made pistol, the shot hit the injured on left leg, Mohan beat him with a lathi. Receiving of fire arm injury by Deshraj in the left leg and other injuries on account of beating by accused persons is supported by the injury report (Ext. Ka-3) proved by P.W. 5, Dr. Ramveer Singh. He has also stated that Shiv Shankar, Ram Mohan, Chokhey Lal and Jagdish reached the spot. He also reached the spot. In cross examination this witness has stated that if the Investigating Officer has not recorded in his statement regarding fire by Gopal with intention to kill and reaching the witnesses on the spot then he cannot tell any reason. It indicates that before the court this witness has improved his version regarding firing by accused with intention to kill. He has also stated that it is true that he wrote in his report that he had reached the spot. He has also stated that at the time of incident he was at his 'Gher' (boundary). The place of incident from his 'Gher' (boundary) is 3-4 fields away. He has also stated that it is true that he wrote in his report that he had reached the spot. He has also stated that at the time of incident he was at his 'Gher' (boundary). The place of incident from his 'Gher' (boundary) is 3-4 fields away. He reached the spot on hearing noise. He had reached the place of incident at the time of committing 'Marpeet'. He had seen the accused committing 'Marpeet' in the way. He has given description with regard to taking out fodder from the 'Burgi'. From his statement it is inferred that the place of incidence is not far away from his 'Gher' (boundary). In case of 'gher' being situated near the place of incident and the incident has occurred in the field, incident can be seen by him. Therefore, his statement appears to be true that he had seen the incident while on the way and he also reached the spot. No other material has been elicited from his cross-examination so that his statement regarding abusing, beating by fists and legs by accused persons, causing 'Lathi' and fire arm injury to injured Deshraj by Mohan and Gopal respectively can be doubted. Thus, on careful scrutiny of his testimony, we find that even if the witness P.W. 1 Komal Prasad had inimical terms with the accused, his evidence regarding abusing and causing leg and fists, 'Lathi' and fire arm injury by accused Rakesh, Mohan and Gopal respectively is trust worthy and reliable. 24. P.W. 2 Deshraj is the injured and an important witness of the case. He has stated that he was looking after his field at about 12.00 hours of the day. At that time Brindavan, Rakesh, Gopal, Mohan came to his field and forcefully started taking 'Kuti' (fodder) from his Burgi. Deshraj objected and then accused persons abused him and started 'Marpeet' and Gopal with intention to kill fired upon him. The shot hit his left leg. The other accused persons beat him by 'Lathi', legs and fists. On his alarm Ram Mohan, Komal, Shiv Shanker, Jagdish, Chokhey Lal came there. 25. He has stated that if the Investigating Officer has not recorded his statement that Gopal had fired upon him with intention to kill then he cannot tell any reason of it. The other accused persons beat him by 'Lathi', legs and fists. On his alarm Ram Mohan, Komal, Shiv Shanker, Jagdish, Chokhey Lal came there. 25. He has stated that if the Investigating Officer has not recorded his statement that Gopal had fired upon him with intention to kill then he cannot tell any reason of it. He has also stated that he told the Investigating Officer that Ram Mohan and Komal came to the spot and saved him. If the Investigating Officer has not recorded this in his statement then he cannot tell any reason for it. In above discussion, we have found Komal Prasad is a witness of incident and he reached the spot also, hence, even if in his statement it has not been recorded by the Investigating Officer, witnessing and reaching the place of incident of Komal Prasad cannot be doubted. Witnessing the incident by P.W. 3 Ram Mohan has been disclosed in the FIR itself which has been lodged promptly and is his cross-examination nothing has been extracted so that his presence on the spot can be doubted, therefore, witnessing and reaching the place of incident of P.W. 3, Ram Mohan is also established. 26. P.W. 2 Deshraj the injured at page 29 of the paper book has stated that firstly accused persons abused then committed 'Marpeet' with him and during 'Marpeet' Gopal fired upon him. He has also stated that Mohan had a 'Lathi', Rakesh had nothing but he was beating him with legs and fists. Brindavan was also unarmed, he was beating him then Gopal fired on him the shot hit his thigh which is corroborated by the injury report (Ext. Ka-3). The statement of this witness regarding abusing and firing by Gopal and beating by 'Lathi' by accused is consistent with the written report (Ext. Ka-1). He has also stated that hearing the sound of fire, the witnesses came to the spot. The witnesses were already coming and going. The witnesses, who were coming and going on the way among them Komal Prasad and Ram Mohan were coming to the field itself. Shiv Shanker, Chokhey Lal and Jagdish were going to the market. He has also narrated the incident in detail on asking by the defence. The witnesses were already coming and going. The witnesses, who were coming and going on the way among them Komal Prasad and Ram Mohan were coming to the field itself. Shiv Shanker, Chokhey Lal and Jagdish were going to the market. He has also narrated the incident in detail on asking by the defence. The core case of the prosecution is not shaken from the cross-examination with regard to abusing by accused persons, beating by fists and legs by accused person, beating by 'Lathi' by accused Mohan and causing fire arm injury by the accused Gopal. Thus, on a careful analysis of the whole statement as discussed above, even if the accused and injured P.W. 2 Deshraj had inimical terms his evidence regarding the incident is trust worthy and reliable. 27. P.W. 3 Ram Mohan has also supported the prosecution version. From his cross-examination nothing material has been elicited so that his presence on the spot and his testimony regarding the incident can be doubted. 28. Defence has also produced D.W. 1 Dr. V.P. Gupta in order to prove that accused Gopal was not present at the time of incident and this witness has stated that Gopal Sharma, the accused, was admitted in the hospital on 08.01.1997 at 8:15 A.M. and discharged on 10.01.1997 at 9:00 A.M. He has admitted in cross examination that in the Admission Register time of admission is not mentioned. On the bed head ticket name and address is not written in his hand writing. He has also stated that loose bundle of bed head tickets remains with the pharmacist. It is also stated that Mukesh Kumar who has written the name and address is still in service. According to him the patient had freedom of movement from which it can be inferred that the accused Gopal was not an indoor patient. He has also stated that he does not supervise patient at all times because patient remains in the ward and he does outdoor duty. Therefore, from the statement of this witness, it cannot be said that presence of accused Gopal at the time of incident was impossible. Accordingly, we find no substance in the contention of learned counsel for the appellant that Gopal was not present at the time of incident. 29. According to prosecution a fire arm injury in the thigh of Deshraj was caused by Gopal. P.W. 5 Dr. Accordingly, we find no substance in the contention of learned counsel for the appellant that Gopal was not present at the time of incident. 29. According to prosecution a fire arm injury in the thigh of Deshraj was caused by Gopal. P.W. 5 Dr. Ramveer Singh found injury no. 1 a fire arm injury and he was feeling pellet in the injury. There was no tattooing and scorching in the wound and it was not an exit wound. X-ray was advised and according to P.W. 4, no abnormality was found in the X-ray on which learned counsel for the appellants submits that if fire arm injury was caused and there was no exit wound then in that situation pellets would have been found in the body. P.W. 2 in his cross-examination at page 24 of the paper book has stated had Gopal had fired upon him from a hand, one and half hand and at page 29 of the paper book has stated that Gopal had fired from a distance of 02 hands, on which he submits that as per medical jurisprudence if fire arm injury is caused within a distance of 05 feet then blackening and tattooing will be present. 30. In spot map (Ext. Ka-6) proved by P.W. 7 S.I. Syed Masook Husain, Investigating Officer, place XA has been shown as the place of causing injury and place XB has been shown from where accused Gopal fired. The distance of place XA from place XB is shown as 10 steps. In cross examination at page 24 of the paper book he has stated that Gopal had fired upon him from a distance near about a hand, one and half hand and on page 29 he has stated that when the accused were taking out fodder from the 'Burgi' he was at a distance of two hands. He has further stated that the accused were committing 'Marpeet' and at that time Gopal fired. Such a statement has been made by the witness on 01.02.2000 and 01.03.2001. While the incident has taken place on 08.01.1997. The witness is also a rustic witness, therefore, in view of the nature of injury caused to him and the varied statement at the same time, i.e., a hand, one and half hand and two hands while as per spot map (Ex. While the incident has taken place on 08.01.1997. The witness is also a rustic witness, therefore, in view of the nature of injury caused to him and the varied statement at the same time, i.e., a hand, one and half hand and two hands while as per spot map (Ex. Ka-6) distance has been shown as 10 feet which was prepared at the time of incident, therefore, there is no reason to disbelieve the distance disclosed in the spot map. Thus, on account of not finding blackening and scorching on the wound prosecution case cannot be doubted. 31. As per X-ray report (Ext. Ka-2) proved by Dr. R.P. Gupta no abnormality has been found in the fire arm injury. As per page 537 and 538 of MODI Medical Jurisprudence And Toxicology 24th Edition Reprint 2012, "when the wound of entrance is present, but not the wound of exit, it means that a bullet is lodged in the body, except in those rare cases where a bullet has been coughed out after entering the respiratory passages or lost in the stool after entering the intestinal tract and also where a bullet by coming in contact with a bone is so deflected as to pass out by the same orifice as it entered." 32. In view of Modi Medical Jurisprudence, in rare case bullet is deflected from the same orifice from which it entered. Prosecution evidence on the point of causing fire arm injury to injured Deshraj is consistent and corroborated with medical evidence. Therefore, keeping in view of Modi Medical jurisprudence, on the basis of not finding any bullet in the body of the injured and distance disclosed by witness between accused and himself, we do not find any substance in the contention of the learned counsel for the appellants that if fire arm injury is caused within a distance of two hands blackening and tattooing will be found and there is no exit injury, therefore, pellet should be present in the injury. 33. Considering the evidence produced by the prosecution as discussed above, we find that evidences of P.W. 1, P.W. 2 and P.W. 3 are consistent, trust worthy and reliable with regard to the incident, therefore, the contention of the learned counsel for the appellants also has no force that on account of enmity they have been falsely implicated. 34. According to Ext. 34. According to Ext. Ka-1, accused Gopal caused fire arm injury on the left leg of injured Deshraj. Injured Deshraj has stated that when accused were beating him at that time Gopal fired upon him which indicates that firing by Gopal to the injured Deshraj was not in furtherance of common intention of other accused. It was his lone act. Therefore, all the accused persons cannot be held liable for causing fire arm injury by accused Gopal. Further, in Ext. Ka-1 it is mentioned that fire arm injury hit the left leg of Deshraj. Seat of injury is on the thigh which is not a vital part. Injured and other witnesses have improved their statement that with intention to kill the accused fired upon the injured, it was not the case of the prosecution that with intention to kill the shot was fired by the accused Gopal targeting a vital part but injury was caused on a non-vital part. As per evidence of the injured also the accused started beating and at once Gopal fired and the shot hit the injured on his thigh. In such a situation it cannot be inferred that intention of the accused was to kill the injured. Therefore, charge under Section 307 I.P.C. is not proved. Causing fire arm thigh injury by accused Gopal is proved, therefore, offence under Section 324 I.P.C. against him is made out and for the same he is liable. 35. On a conspectus of facts and circumstances of the case and close scrutiny of the evidence available on record, as discussed above, we find that prosecution evidence is consistent, trust worthy, and corroborated by medical evidence. Fire arm injury by Gopal was not caused in furtherance of common intention of all the accused persons. Therefore, for causing fire arm injury he is alone liable for his act. Injury was not caused with intention to kill, therefore, he is not liable for punishment under Section 307 I.P.C. but fire arm injury on thigh is proved, for which he is liable to be punished under Section 324 I.P.C. Punishment of appellants Rakesh, Gopal and Mohan under Section 307/34 I.P.C. is not proper and is liable to set aside. Consequently, they are liable to be acquitted under Section 307/34 I.P.C. So far as offence under Sections 323, 504 I.P.C. is concerned, prosecution evidence in this regard is consistent, corroborative to each other. Consequently, they are liable to be acquitted under Section 307/34 I.P.C. So far as offence under Sections 323, 504 I.P.C. is concerned, prosecution evidence in this regard is consistent, corroborative to each other. Therefore, conviction and sentence is liable to be affirmed. 36. The appeal is, therefore, partly allowed. The impugned judgment and order convicting and sentencing the appellants Rakesh, Gopal and Mohan under Section 307 I.P.C. is set aside and they are acquitted for the offence under Section 307/34 I.P.C.. Appellant Gopal is convicted under Section 324 I.P.C. and in the facts and circumstances of the case he is sentenced to rigorous imprisonment for a period of two years. The appellant no. 1 Rakesh, appellant no.2 Gopal and appellant no. 3 Mohan are on bail. Their bail bonds are cancelled. The court concerned is directed to take the appellants into custody to serve out the sentences awarded to them by the trial court under Sections 323, 504 I.P.C. and appellant Gopal under Section 324 I.P.C. as aforesaid. Office is directed to communicate this decision to the court concerned forthwith and also send back the record.