JUDGMENT 1. - 1972 of the learned Additional Sessions Judge, Alwar whereby he convicted the accused-appellant Bhojraj Singh under S. 308 Indian Penal Code and sentenced him to suffer rigorous imprisonment for a term of one year and to pay a fine of Rs. 100/-, in default of the payment of which to undergo rigorous imprisonment for a further period of two months. 2. The prosecution story as disclosed at the trial in a nutshell is that on July 30,1971 accused Bhojraj Singh was posted on duty at Police Station, Mandhan, which is situated near the bus stand. At nearly 12 30 p.m. the accused-appellant, on the date of occurrence, i.e. July 30, 1971, went near the shop of P.W. 3 Laxmi Dhar. At the relevant time P. W. 1 Durga Prasad was talking with P.W. 4 Hazarilal. The accused asked P.W. 1 Durga Prasad as to what made him to make a noise. P.W. 1 Durga Prasad refuted the allegation and asked him to look after his own job. The accused got infuriated and loaded his gun which he was holding in his hand and fired a shot. The shot did not hit anybody. Thereafter P. W. 7 Balveer Singh relieved the accused of his rifle Ex. 1 and bandoleer Ex. 3. The first information report Ex. P. 2 of this occurrence was lodged at the Police Station, Mandhan on July 30, 1971 at 1 p.m. that is, within half an hour of the occurrence. The police after usual investigation submitted a challan in the Court of Munsiff-Magistrate, Behror. The learned Magistrate after taking proceedings under S. 207 A Cr. P. C. committed the accused to face his trial under S. 307 Indian Penal Code and ultimately the accused was tried by the learned Additional Sessions Judge, Alwar. The accused pleaded not guilty to the charge. 3. In support of their case the prosecution examined eight witnesses, out of whom P. W. 1 Durga Prasad, P.W. 3 Laxmi Dhar, P.W. 4 Hazari and P.W. 5 Nawal Kishore are alleged to be the eye-witnesses of the occurrence, out of whom P.W. 3 Laxmi Dhar. P.W. 4 Hazari and P.W. 5 N'awal Kishore were declared hostile to the prosecution and they were allowed to be cross-examined, P. W. 8 Kaptan Singh is the Investigating Officer of this case. The accused-appellant in his statement under S. 342 Cr. P.W. 4 Hazari and P.W. 5 N'awal Kishore were declared hostile to the prosecution and they were allowed to be cross-examined, P. W. 8 Kaptan Singh is the Investigating Officer of this case. The accused-appellant in his statement under S. 342 Cr. P.C. denied his complicity in the crime and stated that he was dead drunk and was not in a position to know the nature of the act done by him. He did not examine any witness in support of his plea. The learned Additional Sessions Judge held that P.W. 1 Durga Prasad made a vacillitating statement regarding the aim of the gun by the accused towards him. The witness admitted that he did not know whether the shot was fired at him or anybody else and did not know in which direction the buliet went. He further held that P. W. 1 Durga Prasad made improvements in his statement recorded before the trial court from his police statement. Placing reliance on the statement of P.W. 1 Durga Prasad and other prosecution witnesses the learned Additional Sessions Judge came to the conclusion that the prosecution had succeeded in proving beyond reasonable doubt that the accused had fired the gun at the bus-stand, Mandhan near the shop of Laxmi Dhar soon after the exchange of invectives with P. W. 1 Durga Prasad. He, instead of. convicting the accused-appellant under S. 307 Indian Penal Code held the accused-appellant guilty of the charge punishable under S.. 308 Indian Penal Code and sentenced him as mentioned above. Being aggrieved of the verdict of conviction, the accused-appellant has come up in appeal before this Court. 4. The learned counsel appearing on behalf of the accused has conceded that there arc no sufficient grounds made out to challenge the fact that the accused had fired a shot on the dale and at the time alleged by the prosecution. However. I have also looked into the relevant portion of the record and am satisfied that the prosecution has established beyond reasonable doubt by overwhelming evidence that the accused did fire a shot at the place in the manner alleged by the prosecution. However. I have also looked into the relevant portion of the record and am satisfied that the prosecution has established beyond reasonable doubt by overwhelming evidence that the accused did fire a shot at the place in the manner alleged by the prosecution. The only question canvassed before me on behalf of the appellant is that the learned trial court committed an error of law in convicting the accused-appellant under S. 308 Indian Penal Code and according to the learned counsel at best the case against the accused can fall under S. 336 Indian Penal Code P. W. I Durga Prasad admitted that he did not know whether the shot was aimed towards him or in any other direction. There is no other evidence on record to hold that the accused appellant aimed towards any other person. The evidence suggests that the shot was fired at random with an intention to terrorise P. W. 1 Durga Prasad. The question arises if P. W. 1 Durga Prasad or any other person had died as a result of this shot, could Bhojraj Singh have been convicted under S. 304 I P C. ? To do so. it would have to be held that the accused-appellant fired the gun with the intention of causing death or causing such bodily injury as is likely to cause death or with the knowledge that it w-as likely to cause death. The shot was fired at random which neither hit P.W. 1 Durga Prasad nor any other person standing nearby nor the direction of the bullet could be known by the witnesses and the possibility of firing the shot in the air cannot be ruled out. As such the accused-appellant is entitled to the benefit of doubt as far as his conviction under S. 308 Indian Penal Code is concerned. It is admitted by the accused-appellant that he was in drunken condition. The question is that when a person, who is admittedly in a drunken state uses a fire arm, whether such a conduct would be termed as rash or negligent. The circumstances of this case do suggest that the act was both rash and negligent. The phrase rashly means some thing more than inadvertence or intentiveness or want, of ordinary care. The question is that when a person, who is admittedly in a drunken state uses a fire arm, whether such a conduct would be termed as rash or negligent. The circumstances of this case do suggest that the act was both rash and negligent. The phrase rashly means some thing more than inadvertence or intentiveness or want, of ordinary care. A person who acts rashly shows indifference to obvious consequence and to the rights of others and does not mind whether a danger would result or not. A rash act is indicative of disregard of consequence. A drunken person firing a gun at random near the bus-stand does show negligence, and he can be held guilty of the offence punishable under S. 336 I. P. C: 5. The net result of the above discussion is that 1 hold the accused-appellant guilty of the offence under S. 336 Indian Penal Code and his conviction from S. 308 Indian Penal Code is altered to S. 336 Indian Penal Code 6. The learned counsel appearing on behalf of the accused has urged that the accused is a Government servant and that in the event of sentence of imprisonment he is likely to lose his job. The occurrence took place on July 30th, 1971 and a period of nearly 41/2 years has elapsed. He is a young man of 29 years of age at present and has a long family to maintain. It is pleaded that an order under S. 4 (1) of the Probation of Offenders Act would meet the ends of justice. He has placed reliance on Harbhajan Singh v. State of Rajasthan (S. B. Criminal Appeal No. 588/1966 : decided on July 30th, 1968 ) decided by this Court, where the accused though convicted under S. 307 Indian Penal Code was extended the benefit of S. 6 of the Probation of Offenders Act. 7. Taking a conspectus of the circumstances of the case including the nature of the offence and the antecedents character of the accused, I consider it expedient to extend the.accused-appellant the benefit of the provisions of Probation of Offenders Act, 1958. On behalf of the State it has not been controverted that the accused has got a fixed place of abode, and is not a previous convict. On behalf of the State it has not been controverted that the accused has got a fixed place of abode, and is not a previous convict. It has further been agreed that this Court can make an order under the Act on the existing material on the record without seeking any further information or seeking a report of the Probation Officer. 8. I, therefore, convict the accused-appellant under S. 336 Indian Penal Code and instead of sending him to jail direct that he be released on entering into a bond with one surety in the sum of Rs. 1000/- to appear in the Court of Additional Sessions Judge, Alwar and receive the sentence when called upon during the period of three months as the Court may direct and in the mean time to keep peace and be of good behaviour. One month's time is allowed to the accused-appellant to furnish the bonds as indicated above The learned Additional Sessions Judge is directed to take necessary bonds from the appellant's and the necessary surety bond from the surety to his satisfaction. The appellant's jail bond will ensure till the time these directions are carried out .after which it will be deemed to be cancelled. 9. The appeal is partly allowed as indicated above. *******