JUDGMENT :

SHREE PRAKASH SINGH, J.

1. Heard learned counsel for the appellants and Sri Aniruddh Kumar Singh, learned AGA-I for the State.

2. By means of the instant criminal appeal, the Judgment and order dated 7.6.2005 passed by the Additional Sessions Judge, Court No. 6, Unnao in Sessions Trial No. 178 of 2003, arising out of Case Crime No. 75 of 2002 relating to Police Station Achalganj, District Unnao has been assailed whereby the appellants have been convicted and sentenced under Section 307/34 I.P.C. for three years rigorous imprisonment with fine of Rs. 1,000/- each and in default of payment of fine, they had to undergo further six months additional rigorous imprisonment.

3. As per the version of the F.I.R. the appellants Ram Kishun and Suresh were armed with country made pistol and appellants Rajjan and and Pancham were aremed with Tabbal and lathi respectively. Pancham is alleged to have exhorted to kill upon which Ram Kishun and Suresh opened fire over the injured Ram Chandra as a result of which injured received injures over his cheeks and hands.

4. The occurrence said to be taken place at about 3.30 pm on 24.2.2002 and the First Information Report was lodged at about 4.25 pm on the same day under Section 307, 504 I.P.C. and, thereafter, charge sheet was filed under Sections 307, 324, 506 I.P.C. on 8.5.2002 and the Sessions Judge framed charges on 8.7.2003, under Section 307/34 I.P.C. against the appellants.

5. Prosecution produced prosecution witnesses, namely, PW-1 Deel Chandra (cousin brother of injured), PW-2 Sarjan (real brother of the injured), PW-3 IO Jang Bahadur Singh Sengar and PW-4 Dr. O.P. Srivastava.

6. Injuries, which were sustained by injured, are as follows:

^^1- vXus;kL= ds ?kqlus dk ?kko 4@4 lseh xq.kk ekalis'kh rd xgjkA nkfgus xky ij lw[kk ,oa tek [kwu ekStwn FkkA

2- pksV uEcj 2 dVk gqvk ?kko 2 lseh xq.kk 0-5 lseh xq.kk eka'kis'kh rd xgjkA cka;s gkFk dh vkf[kjh maxyh ds tM+ ij v/kj ry ij ¼xnsyh dh rjQ½ lw[kk ,oa tek [kwu ekStwn FkkA

3- dVk gqvk ?kko 2-5 lseh xq.kk 0-5 lseh xq.kk ekalis'kh rd xgjkA ck;sa gkFk dh vukfedk ds fupys fgLls ij xnsyh dh rjQ lw[kk ,oa tek gqvk [kwu ekStwn FkkA

4- dVk gqvk ?kko 2-5 lseh xq.kk 0-5 lseh xq.kk ekalis'kh rd xgjkA cka;s gkFk dh e/;ek maxyh ds fupys fgLls ij xnsyh dh rjQ lw[kk ,oa tek [kwu ekStwn FkkA**

7. Learned counsel for the appellants contends that as per the opinion of the doctor, who was examined as PW-4, injuries nos. 2, 3 and 4 are simple in nature and the injury no. 1, which was on cheek of the injured, was kept under observation and advised for X-ray. As per the X-ray plate produced before the trial court, no fracture was seen. He further argued that there are material discrepancies and doubt in the story of the prosecution as two persons are said to have opened fire over the injured but only one fire arm injury is present over the body of the injured namely, Ram Chandra and the prosecution failed to establish as to who had opened fire over the injured. He also submits that out of the two witnesses, one has stated that there was only one sound of firearm and the other stated that there were two sounds of firearm. Further two independent witnesses were named in the First Information Report but they were neither produced by the prosecution nor were examined and the injured person who died during the trial on 26.11.2002, could not be examined by the prosecution as prosecution witness.

8. Further submission of learned counsel for the appellants is that PW-1 and PW-2 are interested witnesses as they are cousin and real brother of the injured and the independent witnesses, who though named in the First Information Report but could not be produced before trial court for the reason well known to the prosecution.

9. Adding his arguments, he submits that injuries themselves are enough to show that there was no intention to kill the injured person as the injuries no. 1, 2 and 3 are simple in nature as per the Doctor who was examined as PW-4 before the trial court and so far a