N.S.Gupta - (1.) RAM Asrey, RAM Pal and Subedar who were convicted under Sections 324 and 323/34, I.P.C. respectively by Sri O. P. Garg, the then IVth Addl. Sessions Judge, Fatehpur vide his Judgment and order dated 11.4.1980 have come up In appeal before this Court.
(2.) THE prosecution case briefly stated is as under : THE accused appellants and victim Chandra Pal, who is since dead, were members of the one and the same family. Ram Pal is the uncle while Subedar and Ram Asrey are cousins of the injured Chandra Pal. THE prosecution claimed that on 29.5.1976 at about 5 a.m. in village Dariyabad, P. S. Lalolauli, District Fatehpur, the accused appellant Ram Asrey had opened fire by means of a country-made pistol. Accused Ram Pal who assaulted injured Chandra Pal was armed with pharsa. He assaulted the injured by means of pharsa from reverse side. Accused appellant Subedar was armed with a lathi, but he did not wield the same. As a result of the assault made by the accused appellants, Chandra Pal sustained the following injuries : 1. Abrasion 1/2" x 1 3/4" on right side front of chest middle part. 2. Lacerated wound 2 1/2" x 2" x 2 1/2" deep on back of middle of right leg. Margins were lacerated and everted. No blackening and tatooing was present. Direction of depth was forward, outward and slightly downward. Soft tissue was protuding out of the wound surrounded with the skull 4" x2 1/2" After needful trial in the matter, the accused appellant Ram Asrey was convicted under Section 324, I.P.C. and sentenced to two years' R. I. Accused appellants Ram Pal and Subedar, who were convicted under Section 323/34, I.P.C. were released on probation for a period of one year ; hence this appeal. I have heard Sri R. B. Sahai, learned counsel for the appellants and the learned A. G. A. for State, considered their contentions and have g&ne through facts and circumstances of the case.
(3.) IT was argued by the learned counsel for the accused appellants before this court that accused Rampal and Subedar have already furnished surety bonds to the satisfaction of the court below. As regards accused appellant Ram Asrey, it was argued that the injuries found on the person of Chandra Pal could not have been caused by means of a country-made pistol. It was argued that the injured Chandra Pal was a man of shady antecedents. He was convicted in criminal cases and had been released just a few days before the date of occurrence. It was argued that the injured Chandra Pal had sustained injuries somewhere else and the accused appellants have been falsely roped in, in this case. I am unable to agree with the contention put forward on behalf of the accused appellants. I find from the record of the case that as many as 3 witnesses of fact, namely, Prithvi Pal who is father of the victim Ram Deiya, wife of the injured Chandra Pal and Smt. Jai Rani, daughter of the victim, who was aged about 9-10 years at the time of occurrence, were examined before the court below. They all stated in the statement on oath before the court below that the accused appellant Ram Asrey had fired at the injured Chandra Pal by means of country-made pistol and that Ram Pal had wielded pharsa. The injury No. 2 which was lacerated wound measuring 21/2" 2" 2 1/2" on the back part of the middle of right leg, which could have been caused by fire-arm was found on the person of the injured at the time of medical examination on 29.5.1976 at 10 a.m., that is Just after 5 or 6 hours of the occurrence. Although it was stated by Dr. A. K. Rastogi P.W. 3, Medical Officer, who had examined the injuries of the injured during the course of his cross- examination that the injury No. 2 could have also been caused by means of a blunt weapon, yet when Dr. A. K. Rastogi had specifically stated in his medical examination report Ex. Ka 3 as also in his examination-in-chief that the injury No. 2 could have been caused by fire-arm, I am of the opinion that the subsequent statement of this witness that this injury should have been caused by means of blunt weapon is of no significance. I may state here that the prosecution had examined Dr. B. S. Mahrotra, P.W. 7 who on the basis of the X-ra examination report, attested copy of which was filed as Ex. Ka 5, had opined that the gun shots were found in right leg of the injured on the basis of the X-ray examination report, which was prepared by Dr. Pandey.;