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Judgment
Honourable Mr. Justice Mandhata Singh
Statement of Nand Kishore Singh P.W. 7 has been made basis for the F.I.R. which, in short, is that there was some dispute in between the parties with respect to fishing from a pond. Pond was being claimed by both the parties. They indulged in altercation and then accused appellants including Awdhesh Singh and others shot firing on informant party on abetment of Rajeshwar Prasad Singh. Several persons from the informant side received injuries. Accused appellants of the case faced trial for the offence u/s 307/34 of the Indian Penal Code but convicted and sentenced for the offence u/s 324/34 of the Indian Penal Code.
In all seven witnesses are examined in the case and they are P.W. 1 Moti Singh, P.W. 2 Sunil Kumar Singh, P.W. 3 Mukesh Kumar, P.W. 4 Manohar Singh, P.W. 5 Shyama Devi, P.W. 6 Ramashray Singh and P.W. 7 Nand Kishore Singh informant of the case.
All the witnesses are there to state about firing by all the three appellants also causing injuries to different persons including P. Ws 2, 3, 4, 5 and 7 either specifying the firing or generalising the same.
Contradiction on the point of real fishing or not is pointed out by Learned Counsel for the appellants but on the point of firing there is no contradiction. His submission is that I.O. and the doctor are not examined in the case. Examination of.I.O. was relevant on the point that as per allegation blood stain was there on the place of occurrence. Firing is denied and the doctor is not examined to state the injuries by fire arms.
In my view also witnesses can be believed for causing of injuries but may not be believed by fire arm because of the reason that the doctor is only competent to state the nature of injury or weapon used. None of the injuries is said grievous. Now they may not be believed for causing by fire arm. Once the injury is there, section 323 of the Indian Penal Code comes to play role. So, the conviction is believed for the offence u/s 323 read with 34 of the Indian Penal Code. On the point of sentence, submission of Learned Counsel for the appellants is that incident, if any took place in the year 1982, parties are sharers, were claiming their right to fish which now is settled and they are living peacefully, so, at this stage no sentence for imprisonment can serve the purpose which I also agree.
On the observations made above, evidencve on record and circumstances of the case, the appeal is partly allowed, judgment of conviction and order of sentence dated 29.9.1999 passed in Sessions Trial No. 20/85 for the offence u/s 324/34 of the Indian Penal Code is set aside and accepted for the offence u/s 323/34 of the Indian Penal Code. On the point of sentence appellants are ordered to be released after due admonition.
As the appellants are on bail, they shall stand discharged from liabilities of their bail bonds. Let a copy of this judgment along with lower court records be sent back to the trial court forthwith.