a) Appellant - Kasim is sentenced to undergo rigorous imprisonment for a period of 7 years for the offence under Section 307 of IPC with fine of Rs.3,000/- and in default of payment of fine, to further undergo rigorous Crl.A. No. 536/2001 Page 1 of 14 imprisonment for three months;A. No. 536/2001 Page 1 of 14All the sentences were ordered to run concurrently.The facts as emerging from the impugned judgment are that on 06.08.1998 at about 11.10 AM near red light, Constable Ripu Daman who was on beat patrolling duty in E. F, G, H Block, Shastri Park, Kaithwara, found that the accused Yunus was beating one rickshaw puller - Shakeel Ahmed.Ripu Daman intervened, whereupon accused Yunus started pulling out a country made pistol from his armpit.Ripu Daman gave him a danda blow.Thereafter, accused Kasim who was standing at a distance, shot a fire from another country made pistol held by him which hit against the back of Ripu Daman.When Ripu Daman turned back and found that Kishan Lal was trying to apprehend accused Kasim.Accused Yunus came there running and shot a fire at Kishan Lal but it did not strike him.Thereafter, Yunus Crl.A. No. 536/2001 Page 2 of 14 gave a blow with the butt of his country made pistol on the head of Kishan Lal.In the meantime, other public persons and vehicle of PCR arrived at the spot and accused Kasim was overpowered by Kishan Lal alongwith one country made pistol, eight live cartridges, one empty cartridge, besides one dagger.Inspector Maharaj Singh, of PCR apprehended the accused Yunus alongwith country made pistol, one cartridge, one fired cartridge.The officials of PCR took Ripu Daman to GTB Hospital.In the meantime, Inspector Tej Pal Singh, SHO of Police Station Seelampur arrived at the spot.Both the accused were arrested and challened for offences under Section 307/308/186/353/34 of IPC, to which they pleaded not guilty and claimed trial.The facts as emerging from the impugned judgment are that at about 11.10 AM near red light, Constable Ripu Daman who was on beat patrolling duty in E. F, G, H Block, Shastri Park, Kaithwara, found that the accused Yunus was beating one rickshaw puller - Shakeel Ahmed.Ripu Daman intervened, whereupon accused Yunus started pulling out a country made pistol from his armpit.Ripu Daman gave him a danda blow.Thereafter, accused Kasim who was standing at a distance, shot a fire from another country made pistol held by him which hit against the back of Ripu Daman.When Ripu Daman turned back and found that Kishan Lal was trying to apprehend accused Kasim.Accused Yunus came there running and shot a fire at Kishan Lal but it did not strike him.Thereafter, Yunus gave a blow with the butt of his country made pistol on the head of Kishan Lal.In the meantime, other public persons and vehicle of PCR arrived at the spot and accused Kasim was overpowered by Kishan Lal alongwith one country made pistol, eight Crl.A. No. 536/2001 Page 3 of 14 live cartridges, one empty cartridge, besides one dagger.Inspector Maharaj Singh, of PCR apprehended the accused Yunus alongwith country made pistol, one cartridge, one fired cartridge.The officials of PCR took Ripu Daman to GTB Hospital.A. No. 536/2001 Page 3 of 14The appellant - Kasim before the learned Additional Sessions Judge, in his statement recorded under Section 313 Cr.P.C. deposed that he had been lifted from his brother's house situated at Seelampur and the alleged recoveries were planted upon him.On the other hand, Appellant - Yunus explained that he had come to Seelampur for playing, where a quarrel took place and he received injuries.He went to his uncle's house wherefrom he was lifted by the police.They are; Head Constable Jabar singh (PW-1); Constable Charan Lal (PW-2); Dr. B.Narain, CMO GTB Hospital, Delhi (PW-3); Kishan Lal (PW-4); Head Constable Dinesh (PW-5); Constable Mohar Singh (PW-6); Constable Inderjeet Singh (PW-7); Rajiv Jain, LDC (PW-8), Constable Ripudaman (PW-9); Inspector Maharaj Singh, (PW-10); ASI Samander Singh (PW-11); Constable Rishi Pal (PW-12); Constable Karamvir Singh (PW-13); Inspector Tej Pal Singh (PW-14); Dr. R. Dayal, CMO, GTB Hospital, Delhi (PW-When he looked to the boy who had fired at him, he saw one other person trying to apprehend the assailant.At the same time, the boy whom he had seen beating another boy - fired a shot on the person who was trying to apprehend the second assailant (who had fired on him) but the fire shot did not hit that man.Thereafter, that boy hit the katta butt (handle) on the head of that person.The crowd gathered there succeeded in holding him down.The other assailant had already been apprehended by the person who had earlier been hit with butt of the katta.Thereafter, PCR van came and removed him to GTB Hospital.Through: Mr. Pannal Lal Sharma, Additional Public Prosecutor for the State with Inspector Ram Avtar Tyagi, SHO, with Sub-Inspector Manoj Tomar, Police Station Seelampur, Delhi.HON'BLE MR. JUSTICE P.S.TEJI P.S.TEJI, JBy this appeal filed under Section 374 of Cr. P.C., the appellants seek to challenge the impugned judgment dated 21.05.2001, passed in SC No.164/1999 in a case registered as FIR No. 548/1998 under Section 307/308/186/353/34 of IPC read with Section 25/27/54/59 of Arms Act, at Police Station Seelampur, Delhi.The appellant also seeks to challenge the order on sentence dated 24.05.2001, whereby they have been sentenced as follows:b) Appellant - Yunus is sentenced to undergo rigorous imprisonment for a period of 5 years for the offence under Section 308 of IPC and payment of fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months each; andc) Appellants - Kasim and Yunus were further sentenced to undergo rigorous imprisonment for three months each for offences under Section 186/353/34 of IPC and rigorous imprisonment for three months for the offence under Section 25/27/54/59 of Arms Act.In the meantime, Inspector Tej Pal singh, SHO of Police Station Seelampur arrived at the spot.Both the accused were arrested and challened for offences under Section 307/308/186/353/34 of IPC, to which he pleaded not guilty and claimed trial.A. No. 536/2001 Page 2 of 14However, both the appellants did not lead any defence evidence in their support.To prove the charges against the appellant, the prosecution examined 19 witnesses.A. No. 536/2001 Page 4 of 1415); Shakeel (PW-16); Sh.A.R. Arora (PW-17); Dr. Satish Mishra, Surgery Sr.Resident, GTB, (PW-18); and Dr. S.D. Bisht, Sushrut Trauma Centre, LNJP Hospital (PW-19).Upon considering the facts, evidence led and the material on record, the learned Additional Sessions Judge held the appellant - Kasim guilty for offence punishable under Sections 307 of IPC read with Section 25/27/54/59 of Arms Act and appellant - Yunus guilty for the offence under Section 308 IPC read with Section 25/27/54/59 of Arms Act, by impugned judgment dated 21.05.2001, and vide order on sentence dated 24.05.2001 and the appellants were sentenced as indicated above.Hence, the appellants have filed the instant appeal against the impugned judgment and order on sentence passed by learned Additional Sessions Judge.The main grounds of challenge are that there are contradictions in the statement of the prosecution witnesses and the prosecution has miserably failed to prove its case beyond reasonable doubts.Even the prosecution witness Shakeel (PW-16) who was allegedly being beaten by the appellant has been declared hostile; Constable Ripu Daman (PW-9) in his cross-examination deposed that he could not see the faces of the appellants and on the other hand he deposed that he had seen Yunus first time in the hospital.Even the star witness Kishan Lal (PW-4) has denied having made any statement before the police and in his cross-examination stated that he had caught the accused Kasim at a Crl.A. No. 536/2001 Page 5 of 14 distance of 15 minutes running.It is further contended that as per the prosecution case the appellants were arrested at the spot, but the DD No.11A states that an information was received from wireless Operator through intercom that somebody had fired a shot on a police constable, he was taken to the hospital and the assailants had run away.It is further contended that the Head Constable Dinesh (PW-5) who belongs to PCR and arrived at the spot first of all and deposed that one public witness had told him that one constable had been fired.He stated that they found the constable at the spot lying and removed him to the hospital, but he nowhere stated that accused were arrested on the spot.It is further argued that PW-6 Constable Mohar Singh who was accompanying with Inspector Maharaj Singh (PW-10) to the spot, did not state a word regarding the arrest of the appellants on the spot.It is further argued that no documentary evidence was produced to show that constable Ripudaman was on duty at the place of incident.Regarding medical evidence, it is argued that Dr. R. Dahal (PW-15) and Dr. S.D. Bisht (PW-19) who medically examined and gave their opinion regarding Constable Ripudaman in his cross- examination, Dr. R. Dayal admitted that he had not removed the Crl.A. No. 536/2001 Page 6 of 14 pellets, rather he admitted that there would be blackening and tattooing on the body if the short is fired from a short distance.The X- ray taken is also not on record.Similarly, Dr. S.D. Bisht in his cross- examination deposed that he could not remember the length and breadth of the injuries received by the patient and without going through the records, he could not give an opinion about the nature of the injuries as the same were made simple or grievous.He further deposed that without record, he could not tell the distance of firing.Therefore from the deposition of the doctors, it is clear that the prosecution is of a simple hurt, which falls at best within the purview of Section 323 of IPC.Therefore, in such a situation, the appeal filed by the appellants be allowed and they be given the benefit of doubt.A. No. 536/2001 Page 5 of 14A. No. 536/2001 Page 6 of 14Per contra, argument advanced by learned Additional Public Prosecutor for the State is that the accused/appellants were rightly held guilty, the appellant - Kasim under Section 307 of the IPC inasmuch as he had inflicted a gun shot at the complainant and the appellant - Yunus for the offence under Section 308 of IPC as he had given a blow with the butt of his country made pistol on the head of Kishan Lal.More so, there is recovery of pistol, eight live cartridges, one empty cartridge, one dagger at the instance of the appellants.Therefore, the prosecution has successfully proven the offence of the appellants beyond all reasonable doubts and in such circumstances, the impugned judgment and order on sentence passed by learned Additional Sessions Judge do not call for any interference and the same are liable to be upheld.A. No. 536/2001 Page 7 of 14I have heard the submissions made on behalf of the State and gone through the petition, impugned judgment and order on sentence and the material available on record.Constable Ripudaman (PW-9) had deposed in his statement that on the date of incident i.e. 6.8.1998 at about 11.40 am, he was present near Red light, Shastri Park and while on patrolling duty, he saw a boy being beaten by another boy.He tried to separate them and rescue the boy, but the boy who was bearing the other one, took out a desi katta from one side of his body.He immediately gave a danda blow to him.Another boy who was standing near by, had fired at him from a desi katta of which the bullet hit him on his back.It was subsequently revealed that the person who had been hit on his head was Kishan and the boy who was beating that boy was Yunus.During his deposition, he identified both the assailants in the hospital, who fired a shot on Crl.A. No. 536/2001 Page 8 of 14 him and had hit Kishan on his head and beaten another boy.A. No. 536/2001 Page 8 of 14Kishan Lal (PW-4) who was the eye-witness to the incident had deposed in his statement before court that on 6.8.1998 at about 11/11.30 AM, he was standing outside his house and heard a sound of DHAMAKA.He looked to the right side of the road and saw one constable falling.He went there and enquired as to what had happened.He was told that two boys had run after firing a shot on the constable.He further deposed that one of the accused was having katta in his hand and pointed out towards the appellant - Kasim.He deposed that he held Kasim and snatched the katta from his hand.When he was snatching the katta, he shouted and told the other accused - Yunus to kill him whereupon the witness pointed out towards the appellant - Yunus.He deposed that the appellant - Yunus took out a katta and fired a shot aiming at him but he fell down and was saved from the shot and thereafter Yunus hit the butt of the katta on his head.He further deposed that he handed over accused Kasim to the SHO as well as the katta.It has further come in his deposition that from the search of appellant - Kasim, eight live cartridges from his pocket were recovered.Apart from this, appellant - Kasim was having one chhura kept in his leg with the help of his socks.He deposed that he had sustained injury on his head on being hit with the katta butt by accused Yunus.He alongwith two accused where taken to GTB hosital and he was medically examined by the police.Dr. B.Narain, CMO GTB Hospital, Delhi (PW-3) deposed in his statement that he had examined Kishan Lal and prepared his MLC Crl.A. No. 536/2001 Page 9 of 14 (Ex. PW-3/A).Resident Surgery, he had given the opinion on the MLC (Ex. PW- 15/A and Ex. PW-18/A) as being grievous.A. No. 536/2001 Page 9 of 14This court also perused the MLC of Krishan (Ex.PW-3/A) and according to that, injured had swelling and tenderness in occeptal area of scull and the injury was opinied by the doctor to be of simple in nature with blunt object.Another MLC of Constable Ripu Daman (Ex.PW-15/A) was also perused by this court, which shows that the patient was having injury of gun shot with multiple pellets, one and half inch diameter at lower back; no blackening and tatowing of area.The doctor has opined the injury to have been caused by gun shot.Perusal of the impugned judgment passed by the learned Additional Sessions Judge reveals that the appellant - Kasim has been convicted for 307 IPC on the basis of statement of injured and eye- witness as well as of independent witness Kishan Lal and on the basis of the MLC of the injured upon which the doctor has opined the injuries being inflicted through gun shot.For ready reference, Section 307 of the IPC which reads as follows is provided hereunder:"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be Crl.The determinative question is intention or knowledge, as the case may be, and not the Crl.A. No. 536/2001 Page 11 of 14 nature of injury.A. No. 536/2001 Page 11 of 14Likewise, vide Crl.A. No. 536/2001 Page 12 of 14 impugned judgment the appellant - Yunus has been held guilty for the offence under Section 308 IPC and Section 25/27/54/59 of Arms Act on the premise of the statement of Kishan Lal who in his deposition speicifcally stated that appellant - Yunus gave a blow with a butt of his country made pistol on the head.Now on the quantum of sentence, this court observes that the learned Additional Sessions Judge has awarded the sentence of 7 years rigorous imprisonment to the appellant - Kasim for the offence under Section 307 IPC and 5 years rigorous imprisonment to the appellant - Yunus for the offence under Section 308 of IPC.Considering the peculiar facts and circumstances of the present case, and the fact that the incident in question is of the year 1998 and the appellants have faced the agony of trial for the last more than 19 years, this court is of the considered opinion that the interest of justice would be met if the sentence imposed upon the appellant - Kasim is reduced to the period of 5 years for the offence under Section 307 of IPC and the sentence Crl.A. No. 536/2001 Page 13 of 14 imposed upon the appellant - Yunus is reduced to the period of 3 years for the offence under Section 308 of IPC years.However, the sentence under Section 25/27/54/59 of Arms Act awarded to both the appellants shall remain the same with direction of running all the sentences concurrently.It is ordered accordingly.A. No. 536/2001 Page 13 of 14Resultantly, finding no merit in the appeal, the appeal filed by the appellants is dismissed thereby upholding the impugned judgment dated 21.05.2001 and modifying the order on sentence dated 24.05.2001 to the extent indicated above.The appellants are on bail.They are directed to surrender before the trial court concerned within a period of 15 days to serve the remainder of the sentence of imprisonment.A copy of this order be sent to the Trial Court for information and necessary steps.With aforesaid directions, the present appeal is disposed of.(P.S.TEJI) JUDGE JULY 04, 2017 pkb Crl.A. No. 536/2001 Page 14 of 14A. No. 536/2001 Page 14 of 14

Sections cited: Section 307 in The Indian Penal Code, Section 308 in The Indian Penal Code, Section 186 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 353 in The Indian Penal Code, Section 323 in The Indian Penal Code