N.S. Gupta, J.@mdashThe accused Appellant Ram Kailash who was convicted u/s 307/452, I.P.C. and was sentenced to undergo R.I. for a period of 3 years u/s 307, I.P.C. and one year u/s 452. I.P.C. and accused Appellants Ram Lakhan and Ram Surat who were convicted u/s 307/452/34, I.P.C. and were sentenced to undergo R.I. for a period of two years u/s 307, I.P.C. and one year u/s 452. I.P.C. vide judgment and order dated 22.5.79 passed by the then IV Addl. Sessions Judge, Allahabad, Sri Govind Prasad have come up in appeal before this Court.
2. The prosecution claimed that on 20.9.1977 at about 6.00 a.m. in village Himachal-ka-purwa, P.S. Sarai Aqil, district Allahabad, accused Ram Lakhan opened fire by means of a gun on the exhortation of Ram Lakhan and Ram Surat inside the house of the injured Ram Pratap and caused injuries to him.
3. The F.I.R. was lodged by the injured Ram Pratap at P. Section Sarai Aqil at 8.10 a.m., the same day, i.e., just within two hours of the occurrence. It appears that the Investigating Officer S.I. Rajendra Pal Misra, D.W. 1 had submitted a final report into the matter. The injured thereafter filed a criminal complaint in the court of Special Judicial Magistrate, Allahabad on 16.10.77. After needful trial, the accused Appellants were convicted as aforesaid. Hence the appeal.
4. I have heard Sri P.N. Misra, learned Counsel for the Appellant and Sri V.B. Singh, learned Addl. 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 Appellants that only the role of instigation was assigned to the accused Ram Lakhan and Ram Surat according to the statement of the injured Ram Pratap. These accused persons were armed with lathies and they did not cause any injury to the complainant. It was argued that these two accused persons were falsely arrayed in the case due to the enmity and, therefore, they deserve to be given the benefit of doubt.
6. It is clear from the statement of the Ram Pratap, P.W. 1 that the houses of Ram Lakhan and Ram Surat are situate at a distance of 20 steps from his house. It has also come in the evidence of Ram Pratap that all the three accused Appellants are related as cousin brothers. According to the statement of Ram Pratap, only the main accused Appellant Ram Kailash bore enmity with the complainant on the point of his servant. It was accused Appellant Ram Kailash alone who is said to have assaulted the servant of the complainant about 15-20 days before the date of occurrence of this case. The other two accused persons, namely, Ram Lakhan and Ram Surat did not bear any sort of enmity with the complainant. It is. therefore, probable for me to believe that the accused Appellants Ram Lakhan and Ram Surat were dragged into this case because of their relationship with the accused Appellant Ram Lakhan. I, therefore, consider it safe to give these two Appellants, benefit of doubt and to acquit them.
7. Now coming to the role of accused Appellant Ram Kailash, I find that the role of opening fire by means of a gun and causing injuries in question has been assigned to him. I have carefully gone through the statement of the injured Ram Pratap in which he has specifically stated that accused Appellant Ram Kailash bore enmity with him and on that score, he had opened fire by means of a gun and caused injury in his left arm yet, he has nowhere stated that accused Appellant Ram Kailash had opened fire with the intention to kill him. Therefore, the intention of accused Appellant Ram Kailash in causing the injury in question has got to be determined with reference to the injury found on the person of the injured Ram Pratap.
8. I find from the injury report that firearm wound of entry measuring 1"� (" � muscle deep on the inner aspect of the left arm and a wound of exit measuring 3?"�(" � muscle deep on the outer aspect of left arm were found on the person of the injured. The doctor did not opine that the aforesaid injury was dangerous to life. No X-ray examination report in respect of the injury in question was produced by the complainant before the trial court. Thus on the basis of the injury caused, I am of the opinion that the intention of the accused Appellant Ram Kailash in causing the said injury was to have voluntarily caused hurt to the injured Ram Pratap by means of a gun. I am, therefore, of the opinion that the offence comes within the ambit of Section 324, I.P.C.
9. Keeping in view the fact that the incident had taken place inside the house of the complainant which was used as dwelling house for catties, I am of the opinion that the offence u/s 452, I.P.C. is clearly made out against the accused Appellant Ram Kailash.
10. It was argued by the learned Counsel for the accused Appellant that accused Appellant is a poor man. He has undergone mental agony for the last about 17 years. It was, therefore, urged that instead of sentencing the accused Appellant Ram Kailash to Jail, he may be sentenced to pay a fine of Rs. 5.000. It was argued on behalf of the State that having due regard to the fact and circumstances of the case and the role of the Appellant, a fine of Rs. 5,000 shall be too modest one. Keeping in view the facts and circumstances of the case, I sustain the conviction of the accused Appellant Ram Kailash under Sections 324 and 452, I.P.C. and sentence him to pay a fine of Rs. 5,000 u/s 324, I.P.C. and in default of the payment of the same to undergo R.I. for a period of six months. I maintain the conviction of the accused Appellants u/s 452, I.P.C. and sentence him to undergo R.I. for a period of one month and to pay a fine of Rs. 2,000 and in default of the payment of the same, to further undergo RI. for a period of one month. The accused Appellant is granted two months'' time to pay the fine. It Is directed that if the fine is deposited by the accused Appellant within time, a sum of Rs. 3,500 shall be paid to the injured Ram Pratap or his legal heirs as compensation and the rest of the fine shall go to the State.
11. The appeal is hereby decided in accordance with the aforesaid observations as a result of which the accused Appellants Ram Lakhan and Ram Surat have been acquitted and accused Appellant Ram Kailash stand convicted u/s 324/452, I.P.C. and sentenced as aforesaid. Let the record of the case be sent to the Sessions Judge, Allahabad for needful compliance.
