Judgment

KHANNA, J.:- Malkhan Singh (18) and Munshi Lal (22) were convicted by learned Additional Sessions Judge Aligarh for an offense under Section 307 read with Section 34 Indian Penal Code and were sentenced each to undergo rigorous imprisonment for a period of seven years. On appeal the Allahabad High Court altered the conviction of the two accused to that under Section 324 read with Section 34 Indian Penal Code and reduced to the sentence to rigorous imprisonment for a period of two years. The two accused have now approached this Court in appeal by special leave.

2. The prosecution case is that on January 26, 1967 at about 7 p.m. PW Jai Narain Sharma, an employee in the Sales Tax Office Hathras was going on cycle from Sasni to his village Birra. It was a night of full moon. Near a place called Quila, shots were fired from behind Jai Narain in his back. Jai Narain looked back and he saw the two accused coming on a cycle. Malkhan Singh was on the saddle of the cycle, while Munshi Lal was sitting behind. Munshi Lal was holding a pistol at that time. The two accused then went ahead of Jai Narain. Jai Narain also followed them on his cycle. At a distance of about three or three and a half furlongs from the place of occurrence is a factory known as Shyam Glass Factory. Jai Narain raised alarm, whereupon the two accused leaving their cycle, went inside an arhar field. Persons present outside the factory including Radhey Shyam (PW 2), who had seen the accused in the electric light, then went towards the field but did not go forward out of fear. The cycle left by the accused was taken into possession. Jai Narain was then taken to the Police Station Sasni where he made a report regarding the incident. Jai Narain was examined by Dr. Ishwar Chandra Bhuttan, the same evening at 8 p.m. The doctor found multiple gunshot wounds each 1/8" x 1/8" on the lower part of the back of Jai Narain in an area of 5 1/2 " x 5". Some of the injuries were 1/8" deep. while others were superficial. The injuries were declared by the doctor to be simple in nature.

3. The two accused surrendered on July 7, 1967. An identification parade of the two accused was held by Shri Bindraban Sub Divisional Magistrate on July 29, 1967. The two accused were correctly identified by Jai Narain and Radhey Shyam PWs at the identification parade.

4. At the trial the plea of the two accused was denial simpliciter. The trial Court held that it was Munshi Lal who fired the shot at Jai Narain and, as such, caused him injures. Malkhan Singh was convicted under Section 307 read with Section 34 Indian Penal Code, because the trial Court was of the view that the injuries were caused to Jai Narain in furtherance of the common intention of the two accused.

5. The High Court in appeal came to the conclusion, in view of the nature of the injuries, that the case against the accused fell under S. 324 read with Section 34 Indian Penal Code.

6. In this Court, Mr. Kohli has challenged the conviction of the two appellants and has argued that the evidence adduced in this case is not sufficient to warrant the conviction of the accused and to establish their complicity. As against that, Mr. Rana on behalf of the State has canvassed for the correctness of the view taken by the High Court. In this connection we find that so far as Munshi Lal s case is concerned, Jai Narain (PW1) has deposed that when he was shot at in his back, he looked behind and saw Munshi Lal holding a pistol in his hand. Jai Narain did not know Munshi Lal and we find no particular reason as to why Jai Narain should falsely depose against Munshi Lal. It is difficult to believe that an injured person would spare his real assailant and falsely involve another person as one responsible for causing him injury. The fact that Munshi Lal was seen holding a pistol in his hand by Jai Narain immediately after being shot at goes to show that it was Munshi Lal who had fired the shot at Jai Narain. Munshi Lal was also identified near the Glas