JUDGMENT
N.S. Gupta, J.
1. The accused appellant Jawahar Lal who was convicted under Section 307, I. P. C. by Sri D. S. Ram, VI Additional Sessions Judge, Mainpuri, vide his judgment and order dated 21-9-1984 and was sentenced to undergo R. I. for a period of 4 years and to pay a fine of Rs. 4,000/- and in default of the payment of the same to further undergo R. I. for two years has become up in appeal before this Court.
2. The prosecution story briefly stated is as follows:-
The complainant Rameshwar Dayal is the father of the injured Sanjay alias Pappu. The accused appellant, the complainant and the injured were all resident of City Mainpuri, P. S. Kotwali. The prosecution claimed that on 12-11-80 at about 7.30 p.m. in Mohalla Lohai, P.S. Kotwali, district Mainpuri, the accused appellant Jawahar Lal alongwith his five other associates viz. Hira Lal, Kanhaiya Lal, Ramesh Chand, Mahesh Chand and Vinod had formed an unlawful assembly and in prosecution of the common object of the said unlawful assembly to cause the death of injured Sanjay, P. W. 1, the accused appellants opened fire by means of a country made pistol and caused injuries. His other associates instigated and assisted the accused appellant in causing injuries to the injured. The injured Sanjay was immediately rushed to district hospital Mainpuri where he was examined by Dr. Suresh Tharaniya, P. W. 3 who found the following injuries on the person of the deceased :-
1. Gun shot wound of entry 1/2 c.m. x 1/2 c.m. x cavity deep on the front of right side chest 7 c.m. below to middle right elevicle. Margins were lacerated, inverted, tatoing, scorching absent. Wound not probed. Surgical emphysaue present. Profused bleeding. Injury kept u.o. and advised X-ray.
2. Gun shot wound of exit 3/4 c.m. x 3/4 c.m. x cavity deep on the back right side midial to lower end of scapula, Margines were lacerated and enverted, blackning, tatoing and scorching absent, wound not probed. Profused bleeding. Injury was kept u.o. and advised X-ray.
3. After usual investigation into the matter the accused appellant was convicted and sentenced as aforesaid. Hence the appeal.
4. I have heard Sri Ravindra Singh, learned counsel for the accused appellant and Sri L. V. Singh, learned Additional Government Advocate for the State; considered their contentions and have gone through the facts and circumstances of the case.
5. It was argued by the learned counsel for the accused appellant that according to the statement of the injured Sanjay, P. W. 1, the accused appellant had opened fire upon him from towards the back side and had caused the injuries in question. It was urged on behalf of the accused appellant that this assertion of the injured is belied by the medical evidence of Dr. Suresh Tharniya. P. W. 3 who has clearly stated that the injury found on the person of the injured was on the front side chest of the injured. There appears to be force in the contention of the learned counsel for the accused appellant for the reason that it is quite clear from the injury report and also the statement of Dr. Suresh Tharaniya, P. W. 3 that the gun shot wound of entry which was found on the person of the injured was on the front of the right side chest of the injured and that the wound of exit was on the back side of the injured.
6. I should state here that the time of occurrence was at about 7.30 p.m. It was averred in the F. I. R. that the first fire was made by Hira Lal which was missed and the second fire was made by Jawahar, the accused appellant, before this Court, which caused injuries to the injured. The F. I. R. was lodged by Rameshwar Dayal, the father of the injured who was not examined before the Court below.
7. It was averred by the injured Sanjay, P. W. 1, in paragraph 13 of his cross examination before the court below that his father went to the police station leaving him in the hospital for the purposes of lodging a report. He specifically stated that till that time he did not state anything about the incident to his father. He further stated that at that time Onkar and Narendra who were said to be eye witnesses of the occurrence were not by his side. He was unable to state as to whether any of these two witnesses had gone alongwith his father to the police station. P. W. Onkar was never examined by the prosecution before the court below. P. W. 2 Narendra Singh was of course examined. He too has stated in his very examination in chief before the court below that the accused appellant opened fire from towards the back which caused injuries to the injured Sanjay. He stated that he informed about this incident to the father of the injured and then the father of the injured and he took the injured to the hospital. It would thus be seen that the fact that the injury was caused to the injured by the accused appellant from towards the back was narrated before the complainant, the father of the injured by the eye witness Narendra Singh.
8. The circumstances that the case of the injured was that the fire was made from towards the back side and that the Doctor found the injuries towards the front side chest of the injured go to show that the injured could not see the faces of the real assaultant and had falsely roped in the accused appellant.
9. It is important to note here that besides the accused appellant as many as six other persons were roped in by the complainant as accused persons in the F.I.R. They were Hira Lal, Kanhaiya Lal, Ramesh Chand, Mahesh, Ashok and Vinod Singh. Ashok had died before the commencement of the trial and the remaining were acquitted by the Court below giving them the benefit of doubt. It would thus be seen that the trial Court found that the implication of as may as six persons as accused persons in the F.I.R. was false. If the father of the injured could rope in six other persons falsely into this case, the possibility that the accused appellant was also falsely roped in could not be ruled out. The injured Sanjay, P.W. 1 stated that on 17-1-83, he alongwith Onkar Singh were convicted in a case punishable Under Section 25 Arms Act and were sentenced to R. I. for six months each. P.W. Narendra Singh was related as nephew of Onkar Singh. He was a resident of Harchandpur and not of city of Mainpuri. Harchandpur lay at a distance of about 5 miles from the place of occurrence. It would thus be seen that P.W.2 Narendra Singh was an interested and chance witness of the occurrence. He being the nephew of the close associate of Onkar Singh, it appears that he came to depose in favour of the accused appellant in a friendly courtesy. When the evidence of the injured and eye-witness Narendra Singh is belied by the medical evidence, I am of the opinion that the order of conviction and sentence passed by the learned Courts below were bad in law and it cannot be sustained. The appeal is, therefore, allowed and the order of conviction and sentence passed by the learned Sessions Judge against the accused appellant is hereby set aside and the accused is acquitted. He is in jail. Let him be set at liberty forthwith, if not required in any other case. Let a copy of this judgment be given to the accused appellant and the record of this case be sent to the Court below alongwith a copy of this judgment immediately.