- (1.) J. K. Mathur, J. This appeal is directed against the judgment of III Additional Sessions Judge, Sitapur dated 31st March, 1943 whereby Sobaran Lal was convicted for having committed offences punishable under Sections 307 and 323, I. 'p. C. and sentenced to 7 years' K. I. and a fine of Rs. 500 and one year's R. I. , respectively for each of the offences. Sentences were ordered to run concurrently.
(2.) A report was lodged at Police Station Hargaon, district Sitapur on 17-8-1981 at 5. 30 p. m. by Gaya Prasad. According to it, he was Head Master in local primary school in village Wazirpur. Shiv Ram was an Assistant Teacher in the same school. On tae date of incident he had gone to fihadewan. Gaya Prasad was teaching the students in the class on 17-9-1981 when at aoout 2 p. m. accused Sobaran came there. He abused Gaya Prasad and asked him whether the school had been constructed. Gaya Prasad replied that even if it was not constructed, he would go on teaching. Sobaran then continued to abuse him and when Oaya Prasad objected, he started beating him with slaps and shoes. Gaya Prasad ran towards the village followed by children. Witnesses also came there. Sobaran ran towards his house and came back with his gun. He fired at Oaya Prasad, causing injuries to Nand Kumar, Aditya Prakash, Vijendra Kumar, Oudiya and Ram Sevak. Oaya Prasad, however, was not injured. Sobaran then ran away. Oaya Prasad went with injured persons to the Police Station and lodged the First Informa tion Report. The injuries were examined by Dr. M. G. D. (P. W. 5 ). He found following injuries on the person of Oaya Prasad : (1) Traumatic swelling 3" X 3" on the back of the right shoulder. (2) Traumatic swelling 2" x 2" on the forehead 1" above from root of nose. Opinion.-All injuries are simple, caused by some blunt object, dura tion 1/4th day back about. The following injuries were found on the person of Oudiya : (i) One gunshot wound 1/8" x 1/8" x muscle|deep on the right upper and inner part of right arm. Pellet not palpable. Opinion.-Injury is simple, caused by some fire-arm, duration 1/4th day back about. The following injury was found on the person of Vijendra Kumar : (i) One gunshot wound 1/8" x 1/8" X muscle deep on the front and middle part of left thigh. Opinion.-Injury is simple, caused by some fire-arm, duration 1/4th day back about. The following injuries were found on the person of Ram Sewak Misra : (i) Gunshot wound 1/8" x 1/8" x muscle deep on the left lower chest, 5-1/2" below left nipple. (ii) Gunshot wound 1/8" x 1/8" x muscle deep on the outer and upper part of left thigh, pellets not palpable. Opinion.-All injuries are simple, caused by some fire-arm, duration 1/4th day back about. The following injuries were found on the person of Aditya Prakash : (i) Gunshot wound 1/8" x 1/8" x muscle deep on right front upper chest, 2" below right clavicle, pellets not palpable. (ii) Ounshot wound 1/8" x 1/8" x muscle deep on the front and upper part of right thigh, pellets not palpable. (iii) Ounshot wound 1/8" X 1/8" x muscle deep, on the front and lower part of right foot, pellets not palpable. (iv) Ounshot wound 1/8" x 1/8" X muscle deep, on the inner and middle part of left foot, pellets not palpable. Opinion.-AH injuries were simple, caused by fire-arm, duration 1/4th day back about. The following injuries were found on the person of Nand Kumar Shukla : (i) Five gunshot wound each 1/8" X 1/8" x muscle deep, in the area of 8" x 2" on the abdomen. (ii) Three gunshot wound, each 1/8" x 1/8" X muscle deep, in an area of 3" X 3-1/2" on the inner and upper part of left thigh. (iii) One gunthot wound 1/8" x 1/8" X muscle deep on the outer part of left knee joint, pellets not palpable. (iv) Four gunshot wound 1/8" x 1/8" X muscle deep, in an area of 4-1/2" x 1/2" on the front and upper part of left leg. (v) Five gunshot wound 1/8" x 1/8" X muscle deep, in an area of 7-1/2" x 3" on the front middle part of right thigh. (vi) Three gunshot wound 1/3" x 1/8" X muscle deep, in the area of 5" x 1" on the inner and middle part of right thigh, pellets not palpable. (vii) Four gunshot wound 1/8" x 1/8" X muscle deep in an area of 4-1/2" X 2" on the inner and upper part of right leg. Pellets not palpable. (viii) Gunshot wound 1/8" X 1/8" X muscle deep on the inner part of right Knee joint. Opinion.-All injuries were simple, caused by some fire-arm, duration about 1/4th day back, Investigation was conducted by Sri Netra Pal Singh, P. W. 6 who recorded statement of the witnesses and prepared Site Plan. After completing the Investigation he submitted charge-sheet 3. On behalf of the prosecution, P. W. 1, Gaya Prasad, P. W. 2 Aditya Prafcash and P W. 3 Gudiya were examined as witnesses of fact. P. W. 4, Uadri Prasad Pandey is scribe of the First Information Report. P. W. 5, Dr. M. G. D. conducted the medical examination while P. W. 6, Netra Pal Singh investigated the case. 6. Accused pleaded not guilty. According to him, he had complained against Shiv Ram, teacher in the school. At the time of incident, he was coming to Wazirpur as he passed near Chdbuttra, Head Master, Gaya Prasad met and told him that nothing had happened on the complaint made by him. When he objected, Shiv Ram and Gaya Prasad ran after him. A number of other persons also joined him. He went to his house and bolted it while the aforesaid persons collected in a large number infront of his house. Some children also came there. Shiv Ram and Gaya Prasad challenged him to come out and said that they would set house on fire. He thereupon climbed on the roof of his house and jumping on the back side ran away. Subsequently, he came to know that his brother Prem Shanfcar brought the gun of his uncle, Hari Shankar and fired at the crowd to save the house from being set on fire. The brother of the accused went to the police station to lodge the First Information Report but he was detained there and subsequently challaned u nder Section 25 (b ). According to him, Gaya Prasad is inimical to him because he complained against him while other two witnesses are their students and also because their fathers are friends of Gaya Prasad md Shiv Ram. The doctor has also wrongly reported the injuries. 7. On behalf of accused, D. W. 1, Prem Shankar was produced as a witness. 8. After considering the evidence, the learned Sessions Judge found that the prosecution case again it the appellant had been proved. He found the accused guilty of having committed offences under Sections 323 and 307,i. P. C. He was sentenced as above. 9. On behalf of the appellant, it was urged in this Court that the Pro secution has not been able to make out any case against the appellant and in any case no offence under Section 307, I. P. C. has been made out. 10. There are two incidents for which the appellant was prosecuted. In the first incident which happened at the school, it is alleged that the accused caused simple injuries to Gaya Prasad and thereby committed an offence punishahe under Section 323,i. P. C. The other incident, alleged by the prosecution is the one in which the accused is said to have fired at Gaya Prasad and others causing injuries. For this he is said to have committed an offence punishable under Section 307,i. P. C. 11. So far as the first incident is concerned, P. W. 1, Gaya Prasad has stated about the accused having abused him and caused him injuries with hand and shoes. He is supported by P. W. 1, Aditya Prakash and P. W. 3, Km. Gudiya, Nothing was pointed out in the statement of the witnesses which could show that the statement of any one of them was not reliable. 12. It was, however, urged that no injuries were recorded in General Diary when Gaya Prasad went to lodge First Information Report which showed that no injury had actually been received by him and that the injuries reported by the doctor were not reliable. 13. No injuries are, in fact, recorded in General Diary which have been sustained by Gaya Prasad. 14. , The fact that Gaya Prasad had received injuries, has been stated by Gaya Prasad which is corroborated by P. W. 6, Dr. M. G. D. It was not suggested to the doctor that in fact Gaya Prasad did not have any injury on his body. The suggestion made to him was the swelling might have been caused by a bite of an insect to which suggestion he did not agree. Thus, the fact that Gaya Prasad did have swelling on his person at two places, was not challenged. This statement corroborates the statement of P. W. 1, Gaya Prasad and other witnesses about the manner he received injuries. 15. Thus, the prosecution has proved that Gaya Prasad did receive injuries on his person in the manner suggested by him. 16. The evidence about the shot having been fired by accused Sobaran, it has been stated by P. W. 1 that after the aforesaid incident, Sobaran went to his house and came out with a gun and he fired at him from a distance of 15-16 paces. He, however, did not receive any injury. Pellet injuries were received by five other witnesses as have been detailed above. It was urged on behalf of the appellant that even if this evidence is believed, no offence under Section 307,i. P. C. would be made out. 17. No injury was received by Gaya Prasad while one injury was received by Km. Gudiya on her right arm. The injury was 1/8" x 1/8" x muscle deep a gunshot injury was received on thigh of Vijendra. Two such injuries were received below the chest and on the left thigh by Ram Sewafc while four such injuries were received by Aditya Prakash on chest and thigh and foot. 18. There is no direct evidence about the intention of the accused. His intention is, therefore, to be gathered from the circumstances of the case. 19. He fired only one shot from a distance of more than 30 fit. The manner in which the injuries were caused, also shows that there was wide dispersal and none of the injuries could have possibly resulted to the death of any of person. They were all simple in nature, 20. No attempt was made by the accused to repeat the shot. 21. It has been found by the learned Trial Court that the accused was acting in a fit of anger when he fired shot. It cannot, therefore, be said that the act of firing the shot was done with the intention of causing his death or was even capable of causing death considering the distance from which it was fired and the nature of the injuries caused by it. 22. In these circumstances, the offence which the accused Sobaran can be said to have committed is the one punishable under Section 324, I. P. C. , having caused hurt by an instrument of shooting. He could not have been convicted for the offence punishable under Section 307, I P. C. If the act is not capable of causing death, it can never result in an offence under Section 307, I. P. C. in terms of that section itself according to which it would have been murder (sic) had the death resulted. 23. The statement of D. W. 1, Prem Shankar, produced on behalf of the accused, cannot be relied upon firstly because it does not explain the injuries sustained by Gaya Prasad and secondly, because of the manner in which the injuries were caused to the children. It shows that they could not have resulted from firing of a shot in a crowd of adults which had gathered to set fire to the house. Had the crowd so gathered and were intent upon burning the house, the crowd would have been led by grown up persons and nay shot fired at the crowd would have been necessarily hit some of them. The fact that the injuries were caused to the children, is consistant only with the prosecution version of the incident according to which it was only Gaya Prasad and the children who followed him, who were fired at the accused. 24. In the result, therefore, this appeal has to be allowed in parts atid the conviction and sentences awarded by the learned Sessions Judge, need be modified. 25. The app. ai is, therefore, allowed only to the extent that the appel lant Sobaran Lal is convicted for the offences under Sections (sic) 323 and 324, I. P. C. The sentence passed against him for the offence under Section 323, I. P. C. is maintained. He shall be sentenced to two years' R. I. for the offence under Section 324,i. P. C. Both the sentences shall run concurrently. The conviction and sentence under Section 307, I. P. C. is hereby set aside. The appellant is on bail. He shall be taken into custody to serve out the re maining part of the sentences. Appeal allowed. .;