M. C. Jain, J. - (1.) -Chokha and his real brother Mittha were tried in S.T. No. 331 of 1979 before IVth Additional Sessions Judge, Aligarh. The charge against the former was under Section 307, I.P.C. and under Section 307, I.P.C. read with Section 34, I.P.C. against the latter. By the impugned judgment dated 14.1.1981, the trial Judge acquitted Mittha, but convicted Chokha under Section 324, I.P.C. instead of Section 307, I.P.C. and sentenced him to two years rigorous imprisonment. Consequently, Chokha has preferred Criminal Appeal No. 128 of 1981 whereas the State has come up in appeal as regards the acquittal of Mittha and challenging the conviction of Chokha under Section 324, I.P.C. instead of Section 307, I.P.C.
(2.) THE incident took place on 7.4.1979 at about 6.30 p.m. within the territory of village Aurangabad, police station Harduaganj, district Aligarh. THE F.I.R. was lodged at 7.40 p.m. the same day by Surya Dev Singh P.W. 3, father of the injured Pradeep Kumar P.W. 1. He himself was not an eye-witness of the incident. THE prosecution case was that Chokha of his village was a bad character and had recently been released from jail. He suspected that informant's son Pradeep Kumar P.W. 1 was instrumental in sending him to jail. THErefore, he was harbouring grudge against him. Pradeep Kumar P.W. 1 was a practising advocate at Aligarh and used to go and come back daily in connection with his practice. On the fateful date and time, he was returning back to his village on cycle. Jai Chand and Raj Pal were coming behind him on their cycles. When he was on his way, Chokha and Mittha with one unknown person met him near the village. Chokha stopped his cycle and held out that he had been released from jail and he would finish him on that day. Mittha and unknown person exhorted and Chokha and latter opened fire on him from country-made pistols to murder him. THE bullet struck in his left arm and below the armpit causing injuries to him. Assailants ran away. Jai Chand and Raj Pal had also reached from back side. Ram Swaroop son of Rewa Ram also saw the assailants running and recognised them. On lodging of F.I.R. a case was registered and investigation was taken up by Investigating Officer B. L. Katheria P.W. 5. THE injuries of the injured were examined by Dr. Pradip Kumar P.W. 4 on 17.4.1979 at 9.15 p.m. Suffice it to say that gun shot injuries were found on his person and as per the medical evidence, the same could have been caused on 7.4.1979 at 6.30 p.m. The defence was of denial and of false implication. The material testimony was of the injured Pradeep Kumar P.W. 1 who supported the prosecution version in material particulars. Ram Swaroop P.W. 2 was not an eye-witness. He had run to the site on hearing the shot and the scream of the victim. He allegedly saw Chokha and Mittha running through the fields towards canal. According to him, Raj Pal and Jai Chand were standing near Pradeep Kumar. He himself went to the house of injured and informed his father. The trial Judge excluded the testimony of Ram Swaroop P.W. 2, holding that it was doubtful that he could recognize the running assailants and identify them correctly. He, however, relied on the testimony of the injured Pradeep Kumar P.W. 1 as to the complicity of the accused Chokha beyond reasonable doubt. However, he convicted Chokha under Section 324, I.P.C. only while acquitting the other accused Mittha. It is under these circumstances that these two appeals have come up before this Court.
(3.) WE have heard Sri S. K. Pal learned A.G.A. from the side of State and Sri B. Sahai from the other side. Record of the lower court has been summoned before us which we have perused. WE find that despite searching cross-examination, the testimony of Pradeep Kumar P.W. 1 could not be displaced as regards the actual assailant that it was Chokha and none-else who had shot him on the given date, time and place causing injuries to him. As regards conviction of Chokha under Section 324, I.P.C. instead of Section 307, I.P.C., the learned trial Judge has given cogent and convincing reasons that there was no supplementary report to show that injuries sustained by the victim were sufficient to cause his death. There was no X-ray report or plate. Simply on the basis of the injuries found on his person, as reported in his medical examination report, it could not be held that the assailant intended to commit his murder. Therefore, the case was rightly found to be covered under Section 324, I.P.C., instead of Section 307, I.P.C. The appeal from the side of State in this behalf is without force.;