M.L. Joshi, J.
1. This revision is directed against the judgment dated 10-9-1971 of the learned Addl. Sessions Judge, Ganganagar, whereby he convicted accused Sheodan under Section 324, I.P.C. and accused Kishanlal and Amilal under Sections 324/34, I.P.C. Each of the accused was sentenced to nine months' rigorous imprisonment and a fine of Rs. 500/- and in default to undergo further three months' rigorous imprisonment.
2. The prosecution case is that the accused-petitioners, hereinafter to be referred as the accused, were inimical to Roopram, the injured. It is said that on 14-4-1968 at about sunset injured Roopram was returning to his house on camel's back from his field carrying a load of green grass. When the injured . reached near the house of Kaniram Jat, Sheodan accused challenged him and fired a gun shot at him which injured him on the left hand as a result of which he fell down on the ground. The remaining two accused Kishanlal and Amilal were standing in the lane with Sheodan. Chuniram Jat, the uncle of injured Roopram, who was standing outside his house, saw the incident and he went towards the place of the occurrence which was a few 'paundas' away from his house. At that time he saw Kishanlal accused armed with a pistol and Amilal with a lathi. Kishan Lal threatened him not to come near. In the first information report it has been averred that on seeing Roopram coming on camel's back all the three accused challenged Roopram but later on at the trial the prosecution has developed a case that both Kishanlal and Amilal exhorted Sheodan that the enemy had come and he should fire at Roopram. It is said that after this exhortation Sheodan fired at injured Roopram. Some persons collected at the spot whereupon the accused people ran away towards the south. Roopram was taken to the Nohar hospital at about midnight and the first information report was lodged early in the morning at about 7 A.M. in the police station Nohar. A case under Sections 307/34 of the Indian Penal Code was registered. The injured was medically examined and a gun was recovered from Sheodan accused who was charged under Section 307 while the remaining two accused were charged under Sections 307/34 of the Indian Penal Code, From the injury report it will appear that injured Roopram received following simple gun-shot injuries:
Multiple spread out gun shot wounds small shots entrance wound on the dorsal aspect left fore-arm or 2/3 left hand dorsal aspect left index finger. No blackening or charring in this area. The prosecution examined in all five witnesses, namely, P.W. 1 Roopram, P.W. 2 Kaniram, P.W. 3 Chuniram, P.W. 4 Jagirsingh and P.W. 5 Gopaldas. Roopram P.W. 1 is the injured, whereas Kaniram and Chuniram P.W. 3 are alleged to be the eye-witnesses of the occurrence. Jagirsingh is an investigating officer and Gopaldas is the doctor who had examined the injuries of Roopram. The trial Court relied upon the testimony of eyewitnesses and held that it was Sheodan who had caused gun-shot injuries on the person of Roopram. It was simple in nature. He, therefore, held the accused Sheodan guilty under Section 324, I.P.C. and sentenced him as mentioned above. As regards the remaining two accused persons Kishanlal and Amilal the learned trial Magistrate simply said that these two persons were with Sheodan at the time of occurrence and that Sheodan had fired at Roopram in furtherance of the common intention to cause injuries to Roopram and consequently held both these accused guilty under Section 324 r/w Section 34, I.P.C. Being dissatisfied the accused took the matter by means of an appeal before the learned Sessions Judge Ganganagar. The appeal was ultimately heard by the learned Addl. Sessions Judge, Ganganagar. The learned Addl. Sessions Judge concurred with the finding of the learned trial Magistrate as to the firing by Sheodan at Roopram. As re-Bards the accused Kishanlal and Amilal, the learned Judge observed that the exhortation of Kishan Lal and Amilal to Sheodan to fire was not proved beyond reasonable doubt but that, in his opinion, would not lead to the conclusion that these two accused were not with Sheodan or they were falsely implicated, He further proceeded on to say that the firing was made by Sheodan in. furtherance of the common intention of causing injury to Roopram and this common intention was also shared by Kishanlal and Amilal. In support of his conclusion, the learned Addl. Sessions Judge enlisted certain circumstances which may be reproduced in his own words for correct appreciation of the controversy raised before me. 'Kishanlal and Amilal were with accused Sheodan at the time of the offence. Their presence in the lane was not usual and it appears that they were awaiting Roopram so that he could be availed of. Both these accused went away from the scene of occurrence with accused Sheodan. They did not try to prevent the offence or help injured. The coming and going of these two accused with Sheodan and their conduct at the time of the offence would lead to the inference that all the three accused had prior concert and they had formed a common intention to at least cause injury to Roopram. In my opinion, Kishanlal and Amilal were rightly convicted under Sections 324/34 of the Indian Penal Code and so also Sheodan under Section 324 of the Indian Penal Code.'
3. Mr. Kashinath Joshi on behalf of all the three accused strenuously urged that all the accused have been falsely implicated. His argument is that the evidence is not at all reliable and the story put forth is improbable. It was said with regard to the evidence that Roopram injured was highly interested while Chuniram was a close relation of Roopram being the uncle of the injured and Kaniram was inimical to the accused persons. He, therefore urged that the evidence of such partisan witnesses should not have been relied upon by the courts below. In the alternative he urged that even on the facts brought on the record the case against Kishanlal and Amilal has not been proved beyond any manner of doubt. The appellate Court, argued the learned Counsel, had disbelieved, the main plank of the prosecution story as to exhortation by Kishanlal and Amilal in regard to firing at Roopram and, therefore, the case against them was not at all proved. He further urged that there was no occasion for Roopram to have gone near the site of occurrence while going to his house as there was a shortcut route to his house from another place and, therefore, the story put forth by the prosecution does not inspire confidence.
4. I have perused the record and given my earnest consideration to the arguments of the learned Counsel. I will first deal with, the case of accused Sheodan. All the three witnesses, namely, the injured Roopram, P.W. 1, Kaniram P.W. 2 and Chunilal P.W. 3 had given a uniform version to the effect that the accused Sheodan fired at Roopram who was on camel's back and as a result of the injuries he fell down on the ground. It is true that Chunilal is the uncle of the injured and Kaniram was not on good terms with the accused persons. They may. therefore, be said to be partisan witnesses. But the testimony of partisan witnesses cannot be rejected altogether -on that score alone. All that the court has to bear in mind is that their testimony has to be examined with care and caution and will insist for independent corroboration before placing reliance upon the version given by them. As regards Sheodan the testimony of all the eye-witnesses is uniform. They have not been shaken in cross-examination so far as accused Sheodan is concerned. On the other hand their testimony against Sheodan is uniform. There is further corroboration of their testimony in the statement of Gopaldas P.W. 5 who has deposed as to the gun-shot injuries on the hand of Roopram as deposed by all the three aforesaid eye-witnesses. Both the courts below have considered the evidence of these witnesses qua Sheodan and after taking note of all the facts have recorded a conclusion that it was Sheodan who had fired at Roopram. It is rather unnatural for anybody to attribute a principal role to the accused unless he has really committed a crime. Nothing has been brought on the record to show that Roopram would falsely implicate Sheodan and go to the extent of attributing the principal role to him. The testimony of these witnesses receives corroboration from the medical evidence. I am, therefore, not at all inclined to differ with the findings of the courts below so far as Sheodan is concerned and concur with them as to the finding of guilt against Sheodan under Section 324 I.P.C.
5. Then remains the case of the remaining two accused Amilal and Kishanlal. In the first information report it was only stated that these persons had challenged Roopram while he was on earners back. In the course of trial the prosecution has improved its case by introducing a material fact that they exhorted Sheodan to fire at Roopram. This was never the allegation in the first information report. Moreover as to the exhortation the evidence of the eye-witnesses is not uniform. Roopram injured has of course deposed to the exhortation by the witnesses to Sheodan to fire at him but Kaniram P.W. 2 and Chuniram P.W. 3 had only stated that only Kishanlal exhorted Sheodan to fire at Roopram and Amilal was only standing having a lathi in his hand. All the witnesses have said that the accused were standing in the lane. They have not deposed as to whether they had come together and at what time they had come in the lane. The learned Addl. Sessions Judge had rightly discarded the version of exhortation prior to the firing by these two accused persons. He, however, has held them guilty on the basis of circumstances which were relevant in his opinion to make out a case under Section 34, I.P.C. against these accused persons. The first circumstance pointed by the learned Addl. Sessions Judge is that Kishanlal and Amilal were with accused Sheodan at the time of the occurrence in the lane and that their presence was not usual and in his opinion they were awaiting Roopram so that he could be availed of. It may be true that all the accused persons were in the lane at the time of the occurrence. But it cannot be said that their presence was unusual. They were the residents of the same village which was a small village and it cannot be said to be unusual to be present in a village lane which was meant for the use of the villagers. The learned Addl. Sessions Judge has entered into the realm of conjecture when he has observed that they were awaiting Roopram so that he could be availed of. This is merely a guess based on no material on the record. The presence of these persons in the lane cannot be said to be incompatible with their innocence. The second circumstance pointed out by the learned Addl. Sessions Judge is that both these accused went away from the scene of occurrence with accused Sheodan. It is not in the evidence that they had come together or in a body, it is true that the witnesses have deposed that when some neighbours had arrived at the spot all the three ran away towards the south. The learned Counsel for the State emphasized on this circumstance and stated that it was a relevant and sufficient circumstance to show that they had a preconcert and shared the common intention to cause injury to. Roopram. In that connection, the learned Counsel for the State relied on Mamand v. Emperor AIR 1946 PC 45 : 47 Cri LJ 344 and State v. Iftikhar khan : 1973CriLJ636 . On the other hand, Mr. Kashinath Joshi has sought to distinguish these two cases relied on in Pandurang v. State of Hyderabad : 1955CriLJ572 and Banwari v. State of U.P. : AIR1962SC1198 . In AIR 1946 PC 45 : 47 Cri LJ 344 their Lordships of the Privy Council took the fact of running away together as one of the considerations to establish a common intention, But that was not the sole circumstance but there was much more than that. In that case there was evidence that all the three accused came together. There was also evidence that they all ran away together in a body. In : 1973CriLJ636 also there was evidence that the accused had come together at the time of occurrence and they were close associates and they had run away together in a body after the shooting was over. The facts of the particular case cannot be applied indiscriminately to hold the persons guilty. The case must rest on its facts and the mere similarity of facts in one case cannot be used to determine a conclusion of fact in another. In the present case excepting that the accused were present in the lane at the time of the occurrence and that they had ran away after the shooting there is no conclusive circumstance to establish that the accused had a prior concert and shared the common intention to cause the injury to Roopram. It has not been proved that the accused were close associates of Sheodan nor it has been proved that they had come together. It is of course true that they had after the shooting run away towards the south but it is not the suggestion of the prosecution that they had run in a body i.e. together. Their running away after the shooting cannot be a conclusive circumstance incapable of being explained on other hypothesis. The running away simultaneously after the shooting could have been motivated by the instinct of saving themselves from the villagers who could have thought that these two accused persons were also party to the incident. It will be profitable to extract the observations made in Pandurang's case : 1955CriLJ572 which throw considerable light on the controversy before me-
In the present case there is no evidence of any prior meeting we know nothing of what they said or did before the attack-not even immediately before.... But to quote the Privy Council again. 'The inference of common intention should never be reached unless it is necessary inference deducible from the circumstances of the case'. But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of cases. At bottom, it is a question of fact in every case and, however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.
Bearing the principle laid down by their Lordships of the Privy Council and as approved by the Supreme Court, in mind, there is no room for doubt to say that there is no direct evidence of prior concert and the circumstantial evidence is not such which necessarily establish! the conclusion of the guilt of these two accused persons. The presence of these persons on the spot and their running away after the shooting without further materials cannot be said to be incompatible with the innocence of these accused persons as already stated above. The learned Additional Sessions Judge was also not right when he used the omission of these accused to intervene as a relevant circumstance against them. There was one fire by Sheodan and question of intervention could not have arisen. On the other hand their omission to commit violence or show of criminal force is a circumstance in the facts of this case in their favour. Consequently, it cannot be said that the case against these two accused is proved beyond any manner of doubt.
6. Mr. Kashinath Joshi also urged that the sentence against accused Sheodan was excessive. He urged that the injuries were merely simple injuries and since he had already undergone 25 days' imprisonment and since 5 years have elapsed from the date of the incident he should be let off on the sentence already undergone by him. Having heard Mr. Kashinath Joshi I am not at all impressed with his argument. There are no mitigating circumstances in favour of accused Sheodan. He recklessly fired at Roopram without any rhyme or reason. Mere lapse of five years from the date of the incident is not a just ground for the reduction of the sentence. Likewise merely because the injuries were simple, cannot be taken to be a sound reason for reduction of the sentence. The sentence of 9 months in the facts and circumstances of the case is reasonable and it cannot be said to be in any manner excessive.
7. In the result, I partly accept the revision and give benefit of doubt to the accused-petitioners Kishanlal and Amilal and acquit them of the offence under Section 324 r/w Section 34, I.P.C. and set aside their conviction and sentence. Their bail bonds are discharged. Fine if realised shall be refunded to them. However, the conviction and sentence of Sheodan is maintained. He is on bail and not present in the Court today. The District Magistrate, Ganganagar may be directed to take steps to get Sheodan arrested and put him into prison for serving out the remaining portion of the unserved sentence.