S. M N. Raina, J.

This is an appeal by Parma aged about 25 years who has been convicted and sentenced to rigorous imprisonment for 10 years u/s 307, Indian Penal Code by the Second Additional Sessions Judge, Bhind.

Appellant Parma is a resident of mouza Bhat Pura which is at a distance of about 2 to 3 miles from mouza Litiyapura. Fodalia, father of the appellant and Hubba, cousin of the appellant owned some agricultural land in mouza Litiyapura. They sold the land to deceased Sobran and his cousin Mahadeo (P. W. 5). Fodalia wanted this land to be sold back to him, but Sobran and Mahadeo declined. This led to a quarrel and also litigation between the parties. Doji is the elder brother of the appellant Parma.

The case of the prosecution is that on account of the aforesaid dispute over the land Doji wanted to take revenge on Sobran and Mahadeo. He, therefore, absconded from the village and joined a gang of dacoits led by Madhosingh. On 15-10-67, appellant Parma brought a gang of dacoits to village Litiyapura. Some of them went to the house of Mahadeo (P. W. 6), some to the house of deceased Baghunath and others to the house of Sobran. Parma appellant, who was armed with a gun fired at Baghunath, Bamswarup and Jagdish. Baghunath and Bamswarup were killed while Jagdish sustained a grievous injury. Sobran and Sardarsingh were shot dead by other dacoits. According to the prosecution the appellant abetted commission of their murder,

The appellant was thus tried on a charge of murder of Baghunath and Ramswarup u/s 302, Indian Penal Code and of abetment of murder of Sardarsingh and Sobran u/s 302 read with section, 114 Indian Penal Code. He was also tried on a charge u/s 307, Indian Penal Code for attempting to commit murder of Jagdish u/s 307, Indian Penal Code. The appellant abjured his guilt and his defence was that he was not at all present at the spot. The trial Court acquitted the appellant of the charges of murder as well as of the charge of abetment of murder, but convicted him of an offence u/s 307, Indian Penal Code for attempting to commit murder of Jagdish. Being aggrieved thereby the appellant has preferred this appeal.

It is clear from the evidence on record that on the date of occurrence the dacoits visited village Litiyapura, armed with guns and shot dead four persons, namely-Sardar Singh, Sobran, Baghunath and Bamswarup while Jagdish sustained a grievous injury. The fact that Jagdish sustained a gun-shot wound is also borne out by the evidence of Dr. Jain (P. W, 12).

I need not discuss this evidence at length because the fact that Jagdish sustained a gun-shot wound at the time of occurrence has not been disputed.

The main question for consideration in this appeal is whether the appellant had fired at Jagdish and caused the injury found on his person. The solitary witness on this point is Jagdish himself and we have to consider whether his testimony can be safely relied upon. We have to bear in mind that Jagdish. (P. W. 8) is a young boy aged 13 years and it was night time. Jagdiah admitted in cross-examination that there was no light except the Moon-light. There most bare been a lot of confusion and consternation when the dacoita arrived, and, therefore, it is necessary to see if Jagdish could properly identify the person who shot him.

It no doubt appears that the appellant was known to Jagdish but the learned counsel for the appellant pointed out that in this case the Investigating Officer did not record the statement of Jagdish at any stage, and, therefore, the appellant was deprived of an opportunity to cross-examine Jagdish with reference to Ms earliest version. The Sub-Inspector Ram Naresh Singh (P. W. 10) who investigated this case was unable to offer any explanation for not recording the statement of Jagdish. In paragraph 3 of his statement he stated as under :-

In Gopal Krishna Vs. State, it was observed as under in paragraph 22:

It is obvious that though the police are not bound to make a record of the statement