Heard Sri Rajeev Lochan Shukla alongwith Sri Shailendra Singh, learned counsel appearing on behalf of the appellants and learned Additional Government Advocate, appearing on behalf of the respondent.

This Criminal Appeal has been preferred by the appellants against the judgment and order dated 21st June 1982, passed by the Vth Additional District & Sessions Judge, Gorakhpur, in Sessions Trial No. 604 of 1981, convicting the appellants for five years' rigorous imprisonment.

The prosecution case was that Ramgati, the complainant, resident of Village Keshopur, accompanied by his brothers, Brij Kumar and Babarsi, was coming back from the market on 31.7.1980 after purchasing vegetables etc. at about 8:15 PM. When they reached near the house of Thakur Patharkatt, he was faced with three accused. Accused Babulal and Ramraj exhorted the other accused Bindra to kill the complainant, who fired a gun shot at the complainant. The complainant sustained injuries, several villagers reached at the place of incident and saw that the accused were running away. The complainant lodged a complaint written by one Brij Kumar at Police Station at about 9:10 PM, the same night. A case was registered on the basis of the said written complaint and the investigation was handed over to Sub Inspector, K.N. Chaudhary. The complainant was sent for medical examination and treatment. He was examined by Dr. R.S. Goel. After completion of investigation, a chargesheet was submitted by the Investigating Officer against all the accused persons. Accused Bindra was charged under Seciton 307 IPC, while the other two accused were charged under Sections 307 and 34 IPC. All the accused pleaded that they are not guilty and they have been falsely implicated and claimed for trial.

Prosecution to prove its case examined P.W.1-Dr. S.C. Tripathi, P.W.2-Banarsi, P.W.3- Balli, P.W.4-Dr. R.S. Goel, P.W.5-Ram Gati, P.W. 6-Brij Kumar and P.W.-7-S.I. K.N. Chaudhary.

Dr. R.S. Goel, P.W.4, who examined the complainant, in the District Hospital, Gorakhpur found following injuries on his person:

1. Multiple lacerated wound in an area of 9.5 cm x 3.5. cm, depth could not be measured due to injury located near the chest, on vital part, injuries were 5 in number. Maximum size was 2x 1 cm and minimum size was 5 cm x 5 cm on back of right shoulder including upper arm. Bleeding present. Blackening was also present around each injury. Injuries kept U/O. Advised X-ray. Pellets were palpable on the medical and anterior surface of right upper arm. Injuries entrance injuries. Margins inverted and irregular. There was no corresponding exit wound on the body.

2. Abrasion 2 cm x 2 cm on the left side of back 8 cm below the lower part of scapula.

Dr. R.S.Goel advised X-ray of injury no.1. He found the complainant intoxicated with liquor. According to Dr. Goel, injury no.1 was caused by a fire-arm which could have been a country made pistol. Both the injuries were likely to be caused at 8:15 PM of the same night. He prepared the injury report Ex. Ka-2.

P.W. 1-Dr. S.C. Tripathi, Radiologist, proved X-Ray plate and X-ray report. He found foreign body shadow in the right shoulder back of the complainant in the X-ray and observed that the same could have been of pellets.

P.W.-2, Banarsi did not support the prosecution case. He said that he did not see any one firing shot at Ramgati and did not gave any statement to the Investigating Officer.

The complainant, P.W.-5, complainant's brothers Balli and Brij Kumar, P.W-3 and P.W-6 supported case of the prosecution.

P.W-3, Balli, in his statement, has stated that while they were returning from the market alongwith Ramgati, Brijkumar had a torch. When they reached near the house of Thakur Patharkatt, all of a sudden they were faced by the accused. He stated that on the exhortion of Ram Raj and Babulal, the accused Brinda fired gun shot at the complainant by a country made piston, causing injuries on the right shoulder of the complainant. He stated that he had