JUDGMENT
B.K. Sharma, J.
1. This is an appeal against the judgment and order D/- 20 April, 1983, passed by Shri M.K. Sangal, IV Additional Sessions Judge, Mathura, in S.T. No. 21 of 1982, State v. Pooran Singh, under Section 307, I.P.C., whereby he convicted the accused-appellant pooran Singh under Section 307, I.P.C. and sentenced him to rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months, and convicted accused-appellant Ghasi Ram of the offence under Section 307/34, I.P.C. and Sentenced him to suffer rigorous imprisonment for a period of five years.
2. Sadhu Singa was the victim in this case. He was employed in the 3 R.P.D. in the days of occurrence. The prosecution case was that on 14 March, 1981 he was present in the meeting of the Darbar in which the Officer Commanding used to hear the grievances of the labourers; that in that meeting accused-appellant Pooran Singh instigated the employees, to which he objected that after the Darbar was over, accused-appellant Pooran Singh stopped him and gave him a threat that he would take his life; that in respect of this threat he (Sadhu Singh) informed the police through the Commanding Officer and that consequent upon the said information to the police, Pooran Singh-accused appellant, was arrested and sent to jail. The present occurrence was dated 21 March, 1981. In that date according to prosecution story, Sadhu Singh, victim, came out from the gate of the Depot at about 12.30 p.m. after Holi Milan; that as soon as he came out from the gate, accused-appellant Pooran Singh stopped him and shouted “TUMNE MERE KHILAPH REPORT KIHAIAUR MERA VIRODH KIYA HAI AAJ MAIN TUJHE DEKHUNGA,” that Pooran Singh accused-appellant, was accompanied by Ghasi Ram accused-appellant, and one more person; that Ghasi Ram accused-appellant then instigated accused-appellant Pooran Singh, “DEKHTA KYA HAI KHATAM KAR DE,” whereupon accused-appellant Pooran Singh took out a Katta from his “Anti and fired at him and he having turned, the fire struck in his elbow. As per prosecution case, the occurrence was seen by Kaushal, Soni, Ram Chandra, Janki and others, who saved Sadhu Singh, injured.
3. The F.I.R. of this case was lodged by Shri Sadhu Singh, injured, at the Police Station the same day at 1.15 p.m. On the basis of the F.I.R. a chik report Exhibit Ka 5 was prepared by the Clerk, Constable, and the case was registered. The usual investigation followed which resulted in the submission of the charge-sheet and the committal of the accused to the Court of Session for the offence under Section 307, I.P.C.
4. The medical examination of Sadhu Singh was made by Mr. P.P. Pathak, Medical Officer, District Hospital Mathura on 21-3-1981 at 3.30 p.m. He found the following injuries on the body of injured Sadhu Singh.
1. Wound of entry 0.5 cm. x 0.5 cm. on back of right elbow joint. Margins blackening and tatooing present.
2. Wound of exit 1 cm. x 0.5 cm. x depth not measured x bleeding present on front of upper part of right lower arm. 2 cm. below of cubital fossa.
In the opinion of Dr. Pathak the injuries were fresh, caused by fire arm injury (injuries were kept under observation). No X-ray was done. Consequently, there was no supplementary report.
5. At the trial the victim-informant Sadhu Singh was examined as PW-1. He testified to the occurrence and nominated both the accused-appellants as per prosecution story. However, the eye-witnesses Ram Chandra PW-2, Kaushal Kishore PW-3, Janki Prasad PW-4 and Soni Ram PW-6 turned totally hostile and claimed that they had not seen the occurrence at all. Both the accused denied the present occurrence. Accused appellant Pooran Singh denied the previous incident and the present occurrence. He however, admitted, that a F.I.R. had been lodged against him about the previous occurrence and therein he had been bailed out. He claimed that he had been falsely implicated because he has made a grievance to the Colonel who was the authority of the Depot and sought the reduction of rates of articles in the Depot. Gansi Ram accused-appellant, pleaded ignorance about the initied occurrence and denied his participation in the present occurrence, and claimed that he was hospitalised at that time. He produced four witnesses in defence.
6. The learned Sessions Judge believed the prosecution story in toto and rejected the alibi evidence led by Ghasi Ram accused-appellant, and consequently, convicted and sentenced both the accused appellants as aforesaid.
7. I have heard counsel for the parties and have perused the record.
8. So far as Pooran Singh accused-appellant, is concerned, the first incident that took place on the date of occurrence served as the background for the present occurrence. About the first incident an F.I.R. was admittedly lodged at the Police Station and the accused-appellant Pooran Singh was arrested therein and had admittedly got himself bailed out. So in any case, that served as a\ motive for the accused appellant Pooran Singh to commit the present occurrence. The testimony of Sadhu Singh injured-informant as against Pooran Singh accused-appellant, was corroborated by the previous incident which served as a motive and it was also corroborated by the F.I.R. promptly lodged by him at the Police Station, and there was no reason to discard the evidence of Sadhu Singh injured as against this accused-appellant. However, the medical evidence on record only showed that a fire arm injury had been caused the right elbow joint of the victim Sadhu Singh. There was no evidence that any fracture or dislocation had taken place nor there were any other factors which could make it to amount to grievous offence, even. Only a single fire was made and the injury was on non vital part. The circumstances rule out an intention to commit murder. It cannot be said therefore, that an offence under Section 307, I.P.C. was made out or that even an offence under Section 326, I.P.C. was made out. The ocular testimony and the medical evidence make out only the offence under Section 324, I.P.C. as against Pooran Singh accused-appellant.
9. As far as Ghasi Ram accused-appellant, is concerned, it is difficult to sustain his conviction. He was not in any manner involved in the previous incident that took place on 21-3-1981 between Sadhu Singh injured and Pooran Singh accused-appellant. In the present occurrence also, there is no allegation that he was carrying any weapon or made any assault on the injured. All that is said is that he instigated the accused-appellant Pooran Singh to finish the informant Sadhu Singh. The words imputed to him in the evidence of Sadhu Singh, PW-1 at the trial are, “DEKHTA KYA HAI KHATAM KAR DE”. In the F.I.R. the retort inputed to him was, “DEKHTA KYA HAI JALDI GOLI MAR DE”. His exhortation, that is instigation, was not an integral part of the act of fire made by accused-appellant Pooran Singh at Sadhu Singh injured, for which he had a motive due to the previous incident and there was no need of an instigator. Exhortation is considered by the Courts to be a weak type of evidence. In the present case this accused Ghasi Ram has even led evidence of alibi. The evidence of Narain Singh, Subedar Head Clerk; of 3 R.P.D., Mathur where this accused-appellant Ghasi Ram too was employed as a labour was that on 20th March, 1981 (the day preceding the date of present occurrence) he (Ghasi Ram) was on leave as per attendance register of the labourers. There is the evidence of Dr. D.S. Verma, Medical Officer Inchargc Civil Dispensary Baldeo, District Mathura that on 21-3-1981 (the date of occurrence) Ghasi Ram, son of Sukh Ram, aged 35 years, resident of Nai Besti, Narainpuri, Dhauli Pyau, Mathura had been admitted in the Civil Dispensary Baldeo, whose Medical Officer in-charge he was, as an indoor patient at 4 a.m. and on the next day on 22-3-1981, he had discharged Ghasi Ram from his dispensary at 2.30 p.m., having referred him for treatment to District Hospital, Mathura. His evidence was that Ghasi Ram was suffering from acute gastritis. He issued a reference slip to Ghasi Ram for getting admitted to District Hospital Mathura, which was Exhibit Kha 2. He was cross-examined on behalf of the State. It was elicited in his cross-examination that there was overwriting in the bed-head-ticket in the date 21. However, there was no reason for the Doctor to have gone out of his way for the sake of this petty labourer and given false evidence that he had been admitted in the dispensary on the date of occurrence at 4 a.m. and remains admitted there till 2.30 p.m. on the next day. There is also the evidence of Dr. N.C. Chaturvedi DW-1, Medical Officer Emergency, District Hospital Mathura that Ghasi Ram was referred by the Medical Officer incharge Civil Dispensary, Baldeo to his hospital and on the basis of the reference slip, Ghasi Ram was admitted in the District Hospital Mathura on 22-3-1981 at 4.40 p.m. and that he was discharged from there on 24-3-1981 at 7-30 p.m. The evidence of Dr. Chaturvedi also goes to corroborate the evidence given by Dr. D.S. Verma DW-2. The Sessions Judge discarded this alibi evidence on insufficient ground.
10. The appeal is therefore, partly allowed. The conviction of accused-appellant Pooran Singh for the offence under Section 307, I.P.C. is altered to one under Section 324, I.P.C. and the sentence for rigorous imprisonment for a period of live years and fine Rs. 1000/- is altered to a sentence of rigorous imprisonment for a period of two years. The conviction of Ghasi Ram accused appellant, for the offence under Section 307/34, I.P.C. is set aside and he is acquitted of the offence.
11. Pooran Singh accused-appellant, is on bail from this Court. His bail bonds are cancelled. Let him surrender before the C.J.M., Mathura within a week from today, in default thereof, the C.J.M. shall gel him arrested and sent to the District Jail concerned to serve out the sentence according to law.
12. Ghasi Ram accused-appellant, is on bail from this Court. He need not surrender to it. His bail bonds are cancelled, and Sureties are discharged.
13. Let a copy of this judgment be sent to the Sessions Judge, Mathura in a week for information and compliance. The compliance report shall be submitted by the Sessions Judge, Mathura to this Court within a month from today.