O.P. Pradhan, J. - (1.) This appeal under section 374 (2) Cr. P.C. is directed against the judgment and order dated 29-9-1983 passed by Sri R.N. Sircar, the then II Additional Sessions Judge, Hardoi whereby he convicted appellant Vijai Pal under section 307 IPC and appellants Ujagar. Ram Charan and Gajraj under section 307/34 IPC and sentenced each of them to undergo rigorous imprisonment for five years and to pay fine of Rs.1000/- each and in default of payment of fine, to undergo rigorous imprisonment for six months.
(2.) The appellants were put on trial in connection with an offence of assault which was made at about 1 A.M. in the intervening night of 11/12-6-1982 in village Hussainpur, police station Kasimpur, district Hardoi. Appellant Vijai Pal was charged under section 307 while the remaining three appellants were charged under section 307/34 IPC. All the appellants were separately charged under section 323/34 IPC. The trial court, however, acquitted all the appellants of the charge under section 323/34 IPC and the State has not preferred any appeal against their acquittal on this charge.
(3.) The prosecution case in brief is that the complainant Nawab Ali had purchased a grove from Majailau (sic) alias Balram of district Unnao in partnership with Kasim (sic) and Hemraj. In the night of occurrence, Nawab Ali along with Kasim and Hemraj were keeping a guard on this grove. At about 1 A.M. the appellants passed through the grove whereupon Nawab Ali challenged them for their visit to grove at that hour of the night. Appellant Ram Charan called upon his associates to beat Nawab Ali whereupon appellant Vijai Pal fired at Nawab Ali with his country-made pistol. On the alarm raised by Nawab Ali his brother Mustafa ran to his rescue but he was also given lathi blows by the remaining three appellants. Kasim and Hemraj who happened to be in the north of the grove, also rushed to the place of occurrence and then challenged the appellants who thereupon ran away in the west. All the appellants were recognised in the flash light of the torches and there was moonlight also at the time of occurrence. The FIR was lodged at police station Hasimpur district Hardoi at 11.30 A.M. on 12-6-1982 at a distance of 11 Km. from the place of occurrence. In this FIR all the four appellants were named as the assailants, investigation followed. The injured Nawab Ali was examined by Dr.T.H. Rizvi who found the following injuries on his person:- 1. Gun-shot wound 0.5 cm x 0.5 cm. circular over the front of right chest 3 c.m. below in middle of right clavicle (collar bone), no pellet is palpable. 2. One gun-shot 'wound 0.5 c.m. x 0.5 c.m. circular over the front of left side 17 c.m. above left knee-joint, no pellet is palpable. 3. One gun-shot wound circular in disemeuer 0.5c.m. x0.5c.m Fresh oozing is present over in front of left leg 10 c.m. above the left ankle-joint. 4. One gun-shot wound 0.5 c.m. x 0.5 c.m. over the inner side of left foot 11 c.m. away from left ankle-joint. 5. One gun-shot wound circular 0.5 c.m. x 0.5 c.m. over in front of right knee-joint. 6. One gun-shot wound circular 0.5 c.m. x 0.5 c.m. over the outer side of right thigh 6 c.m. above the right knee-joint. One gun-shot wound 0.5 c.m. x 5 c.m. over the outer side of right leg 5 c.m. below the right knee-joint, no pellet is palpable.;