P.N.Goel, J. - (1.) KHUSHI Ram, appellant has been convicted and sentenced under Section 307 IPC to undergo R. 1. for 5 years. Bahadur, elder brother of Khusi Ram, appellant has been acquitted of the offence punishable under Section 307 read with Section 34 IPC.
(2.) THE case of the prosecution against the appellant was that Khushi Ram and his brother Bahadur and Ram Lal were on hostile terms with Sia Ram Singh, PW 1. On 13-6-1972 at about 12 O'Clock on the exhortation of Bahadur, Khushi Ram appellant fired a gun from his roof towards Sia Ram Singh who was on his roof and thereby injured him. THE incident took place on account of enmity. Report of the occurrence was lodged by Sia Ram Singh at 1.45 P.M. at the police station 4 miles away. At 3 P.M. Dr. Rakesh Shyam, PW 3, examined Sia Ram Singh and found 2 gunshot wounds on his person. One gunshot wound was on the inner half of left eye away from pupil. Sia Ram Singh was not able to see from his left eye. The other wound was on the right upper lip. There was no blackening around the wounds. Chandrapal Singh, station officer, PW5 investigated into the case and submitted charge sheet against the appellant and his brother Bahadur. The appellant and Bahadur did not admit the allegations of the prosecution. The prosecution examined Sia Ram Singh and Narain, PWs 1 and 4 to prove its case. The 2nd Additional Sessions Judge, Shahjahanpur, could not place reliance on the testimony of Narain for reasons more than one. He also could not place reliance on the testimony of Sia Ram Singh so far as Bahadur is concerned. Therefore, Bahadur was acquitted and the appellant only was convicted.
(3.) THE learned counsel for the appellant contended that the sole testimony of Sia Ram Singh should not bebelieved even against appellant Khushi Ram. THEre are certain facts and circumstances which require consideration. THEy are : (1) THE Additional Sessions Judge did not place implicit faith in the statement of Sia Ram Singh. He did not believe that Bahadur had exhorted and then Khushi Ram, appellant had fired the gun. (2) Sia Ram Singh had taken bath. He went upstairs to spread his wet dhoti for the purpose of drying in his Atari. He was just at the door that the gunshot injured him. Sia Ram Singh stated in his cross-examination that as soon as he came out of the Atari, he saw Khushi Ram and Bahadur and immediately then a shot was fired at. He further stated that as soon as Bahadur asked the appellant, the appellant fired towards him. He further said that he did not get any opportunity even to turn his face before the shot was fired. In view of this statement, the Additional Sessions Judge did not believe Sia Ram Singh that Bahadur exhorted and then the appellant fired. It is thus patient that as soon as Sia Ram Singh came out of the door of his Atari, a shot was fired towards him and the shot injured his eye. Sia Ram Singh admitted that on account of the injury sustained, his one eye was immediately closed. He further stated that his other eye remained open. But despite this, he could not recognise the persons who had come up at the time of the occurrence. It is a matter of common knowledge that as soon as one eye is injured by a shot, the injured person is not able to see easily even from his other eye- In this circumstances, it is not easily believable that Sia Ram Singh would have been able to recognise his assailants. (3) Sia Ram Singh stated that 6 persons, Pati Ram, Narain, Alladin, Ismail Khan, Badri and Ram Dayal were present at the time and place of occurrence. It means that 6 persons were either at the roof of Sia Ram Singh or on the roof nearby. Out of these 6 persons, admittedly 5 persons are not prepared to corroborate the testimony of Sia Ram. THE only person Narain canne forward to corroborate his testimony. Narain stated that munder of the roof of Sia Ram Singh was being constructed. According to him Alladin and Ismail were working as masons Pati Ram and he were working as labourers. Pati Ram was supplying wet mud and he was supplying bricks to the masons. It will be noted that Sia Ram Singh did not disclose the reason of the 6 persons' presence at the time and place of occurrence. Chandrapal Singh, Investigating Officer did not find any bricks or wet mud at the scene of (occurrence. He did not state that the munder of the roof of Sia Ram Singh was being constructed. In this way Narain gave a wholly liaise reason for his presence at the tiros of occurrence. In view of the above, it is clear beyond doubt that Sia Ram Singh intentionally and. fasely named 6 persons as eye-witnesses of the occurrence. (4) Before the Investigating Officer, Sia Ram Singh stated that many persons of the village had seen the occurrence. In the ordinary course it is not believable that many persons would have been at the roof of Sia Ram Singh. This fact goes to show that the occurrence did not take place at the roof of Sia Ram Singh and that it took place at some other place. The above conclusion can be arrived at by one other fact. It is this that the Investigating Officer found that a card-board was on the roof of Sia Ram Singh. A perusal of the statement of Sia Ram Singh and the site plan prepared by the Investigating Officer will fshow that the appellant fired towards Sia Ram Singh from a distance of 40 steps. Therefore, it is not easily believable that a wad would have reached the roof of Sia Ram Singh.;