JUDGMENT 1. - The revision petition arises out of the judgment passed by the learned Additional Sessions Judge, No. 2. Hanumangarh dated January 27, 1978 by which he affirmed the conviction of the petitioner for the offence under section 307 Indian Penal Code passed by the Assistant Sessions Judge, Hanumangarh dated September 17, 1973. The learned Sessions Judge, has sentenced the petitioner for that offence to 21/2 years rigorous imprisonment and a fine of Rs. 100/-, in default to undergo two months rigorous imprisonment. In appeal, the learned Additional Sessions Judge, No. 2, Hanumangarh reduced the substantive sentence to two years rigorous imprisonment. 2. Petitioner along with four others was tried by the Assistant Sessions Judge, for the offence under sections 307, 148, 307/149 and 323 Indian Penal Code. The prosecution story leading to the trial was, that, there was some dispute relating to the irrigation of the fields of the accused party and the complainant Gopi Ram at 30 LLM. The allegation against Brijlal was that he was illegally taking the water from the water let, thereby causing loss to the complainant Gopiram and the latter complained the matter to the Executive Engineer, who ordered for action to be taken against the mischief mongers, if any. That, on April 8, 1972, the three co-accused Ramkumar, Jagdish and Sukhram wanted to open the water let in the field of Gopiram in order to show that he also committed theft of water. On being restrained by Gopiram, those three persons attacked him and Ramkumar caused `gandasa' injury to him. Dayalaram, brother of Gopiram is also said to have reached there. The three assailants then dragged Dayalram a few paundas away in the field of Surjaram. It is alleged that Brijlal and Devilal armed with 12 bore gun and 16 bore gun respectively were present therein that field. Brijlal is said to have fired two shots. One shot missed but the other hit the thigh of Dayalram causing injury to him. 3. Information against the five accused was lodged by Gopiram at Police Station, Hanumangarh Junction and PW 7 Jai Bhagwan, the Station House Officer investigated the matter and put up challan in the Court of Munsif and Judicial Magistrate, Hanumangarh. The case on commitment went to the court of the learned Additional Sessions Judge, Hanumangarh for trial. 3. Information against the five accused was lodged by Gopiram at Police Station, Hanumangarh Junction and PW 7 Jai Bhagwan, the Station House Officer investigated the matter and put up challan in the Court of Munsif and Judicial Magistrate, Hanumangarh. The case on commitment went to the court of the learned Additional Sessions Judge, Hanumangarh for trial. The learned Additional Sessions Judge, in view of the evidence recorded at the trial, arrived at a conclusion that there being two occurrences at different places and all of five accused not being together, there was no question of any unlawful assembly. He, therefore, held the assailants guilty for their individual acts only. Ramkumar was convicted for the offence under section 323 Indian Penal Code and was released on probation under section 4 of the Probation of Offenders Act. Petitioner Brijlal was convicted and sentenced for the offence under section 307 Indian Penal Code as stated earlier. Sukharam, Jagdish and Devilal were acquitted of the charges levelled against them. Brijlal preferred an appeal with the result of reduction in his substantative sentence as stated above. 4. I heard, Mr. B.R. Purohit, learned counsel for the petitioner and Mr. M.C. Bbati, learned Public Prosecutor for the State and examined the record of the case. 5. So far as the petitioner firing the gun hitting the thigh of Dayalram causing injury to him is concerned, there is the concurrent finding of the two courts and the learned counsel for the petitioner could not point out any ground for interference. This is not a case where the findings of the two courts may be assailed on the ground of inadmissible evidence being taking into consideration, or any material evidence being overlooked. Hence the point for determination in this revision petition is regarding the legality of conviction and sentence under section 307 Indian Penal Code. 6. Mr. Purohit strenuously contended that the circumstances of the case do not indicate that there was any occasion for the petitioner to commit the murder of Dayalaram and therefore, the case does not trival beyond the ambit of section 324 Indian Penal Code. The learned counsel referred to the medical evidence and submitted that no vital part of the body of Dayalaram was injured in the incident and there was only one simple injury on his thigh. 7. Mr. The learned counsel referred to the medical evidence and submitted that no vital part of the body of Dayalaram was injured in the incident and there was only one simple injury on his thigh. 7. Mr. Purohit referred to certain cases, which I would just discuss, lo substantiate his contention that mere use of fire arm would not in all cases make the assailant liable for punishment under section 307 Indian Penal Code, rather the facts and circumstances of the case should be taken into consideration in order to judge the gravity of the matter. 8. Controverting these submissions the learned Public Prosecutor argued that the very fact that dangerous weapon like gun was used by the petitioner shows, that he had the intention to commit the murder of Dayalaram and therefore, the petitioner has rightly been held guilty for an attempt to commit the murder of Dayalaram. 9. This is the admitted position that Brijlal petitioner was not there at the place when the quarrel had started. He is said to be at a distance when Dayalaram was brought in the field of Surja Ram. All the prosecution witnesses have admitted that the place where Brijlal was, not visible from the `naka' where the quarrel about the water had taken place There are different versions about the range of firing. Gopiram (PW 1) the complainant as stated that he had seen Brijlal and Devilal coming out of the wheat crop from the distance of 27-28 paundas and at that time both of them were at a distance of 55-60 paundas in the north from the `naka'. The witness further stated that at the time of firing. Dayalaram was at the distance of 10-12 paundas from the petitioner in eastern direction. His attention was drawn to portion E to F of his police statement Ex. D. 2 where he had narrated the distance to be 35-38 paundas. He disowned that statement but admitted that at the time of first shot, there was a distance of 37-38 paundas. PW 4 Dayalaram the injured has stated that the distance at the time of first gun fire was 40 to 50 paundas and it was after coming 7-8 paundas ahead that the second shot was fired. In his previous statement Ex. 5 at portion E to F the witness has stated this range of fire to be 100 paundas. PW 4 Dayalaram the injured has stated that the distance at the time of first gun fire was 40 to 50 paundas and it was after coming 7-8 paundas ahead that the second shot was fired. In his previous statement Ex. 5 at portion E to F the witness has stated this range of fire to be 100 paundas. Be it as it may, taking into consideration these inconsistent statements, the range of fire must have been at least 300 feet. This fact has been taken into consideration by the two courts below, I had further looked into this part of the evidence in order to appreciate the argument of the learned counsel for the petitioner that the long range of fire is one of the factor lending strength to the argument that the petitioner was not having any intention to kill the victim. 10. In the case of Ram Ratan v. State, AIR 1959 J & K 119 . His Lordship, while deciding a case of fire arm injury, was pleased to observe as under : "Section 307 would apply only where the accused had the intention of causing murder and did all that was possible to do so but for some intervening factor death could not be caused although it would have been the normal result of the act of the accused. The gist of the offence under section 307 is the question of intention. It is manifest that the liability of the accused must be limited to the act which he has in fact caused and should not be extended so as to embrace the consequence of some act which he might have done, but did not in fact intend to do. In order, therefore, to determine the intention of an accused the court has to look to various factors, like, the nature of the injury caused, severity of the blow or its persistence, circumstances in which it is caused and the immediate motive for the act, etc. 11. In the case of Sarju Prasad v. State of Bihar, AIR 1965 SC 843 . the point for determination before their Lordships was as to what the prosecution must establish in order to bring the offence home to the accused under section 307 Indian Penal Code. 11. In the case of Sarju Prasad v. State of Bihar, AIR 1965 SC 843 . the point for determination before their Lordships was as to what the prosecution must establish in order to bring the offence home to the accused under section 307 Indian Penal Code. It was a case of knife injury and the question was whether the case fell under section 307 or 325 Indian Penal Code. Their Lordships were pleased to observe that the fact that no vital organ of the injured had been cut would not by itself be sufficient to take the act of accused out of the purview of Section 307 Indian Penal Code. According to their Lordships in order to bring the offence home to the accused, the prosecution must establish that his intention was one of the three kinds mentioned in S. 300. It was further observed by their Lordships that the state of mind of the accused has to be deduced from the surrounding circumstances and motive would be a relevant circumstance. With these observations, their Lordships were pleased to conclude the insufficiency of evidence to establish with certainty, existence of requisite intention or knowledge of accused would make him liable for the offence under sections 324 and not section 307 Indian Penal Code. 12. The general proposition regarding the offence under section 307 Indian Penal Code in the aforesaid case was followed by their Lordships of the Allahabad High Court in the case of Bhagwan Din and others v. State, AIR 1967 All. 580 . It was a case where three accused were armed with fire arms and the victims had sustained several pellet injuries on their thighs. Their Lordships were pleased to observe as under : "The mere fact that a firearm was used to cause injuries to the victim will not necessarily bring the case u/s. 307. There can be no presumption that the accused intended to cause the death merely because he used a firearm to cause hurt. The intention of the accused person has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. There can be no presumption that the accused intended to cause the death merely because he used a firearm to cause hurt. The intention of the accused person has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where injury has actually been caused to the victim, the prosecution, while attempting to establish that the real intention of the accused was to cause an injury of the nature which was sufficient in the ordinary course of nature to cause death or was so imminently dangerous that it would cause death, had further to establish the intention or knowledge of the accused as contemplated in S. 307 IPC.," 13. It was also held that the burden of proof is on the prosecution and not on the accused." 14. There may be cases where without any injury being caused to the victim, the person using the firearm with an intention to kill the target, may be convicted u/s. 307 Indian Penal Code. But in a case where the injury is actually caused and the circumstances show that the intention was not to commit the murder and the case falls within the ambit of Section 324 Indian Penal Code only the assailant can be held guilty for the offence u/s. 324 and not for any major offence which is not made out from the facts and circumstances of the case. 15. In the case of Hazara Singh & others v. State of Punjab, 1971 SCC (Cri.) 237 the conviction under section 307 and 307 read with 149 Indian Penal Code was set aside in appeal. The finding of the trial Judge was that six persons, including the two who had used pistol and rifle were tried for the offence under section 307 simplicitor were proceeding towards Pakistan in order to smuggle six bags containing 43 Kg. of cardamom each. The persons armed with rifle and pistol fired shots at the police party. The trial Judge was of the opinion that this was done in pursuance of the common object of all the six persons and they were therefore, held guilty for the offence under section 148 Indian Penal Code. Two persons using the firearm were convicted and sentenced for the offence under section 307 and the remaining co-accused for that section read with S. 149 Indian Penal Code. Two persons using the firearm were convicted and sentenced for the offence under section 307 and the remaining co-accused for that section read with S. 149 Indian Penal Code. The accused using firearm were also convicted and sentenced for the offence under section 25 of the Arms Act. On appeal, the High Court maintained the conviction but reduced the sentences to some extent. 16. Their Lordships of the Supreme Court, while hearing the appeal set aside the conviction under section 148 Indian Penal Code for the reason that, with the exception of the firing of the shots in a direction which cannot be determined, no attempt was made by any of the appellants to use any force or violence on any member of the police party. This finding affected the conviction under section 307 read with 149 Indian Penal Code Dealing with the conviction of the two accused under section 307 Indian Penal Code, their Lordships were pleased to propound the following principles : "The prosecution must prove that when the accused fired his gun it was intended to be fired at some one, because it may be that the shots were fired in the air or in some direction only with a view to create confusion and not to kill". 17. There being no reliable evidence, the conviction for the offence under section 25 of the Arms Act was also set aside. 18. Keeping the above principles, enunciated in the various cases, in mind, when I turn to the case on hand, I am inclined to hold that the circumstances did not lead to a legitimate conclusion that the intention of the petitioner was to kill Dayalaram. 19. As stated earlier, Doctor has designated the injury on the thigh to be simple in nature. From the range of firing and the fact that there were other persons also near the victim, including his real brother, at the time of alleged firing, it cannot be said with certainty that the intention was to cause any fatal injury to Dayalaram. It is also noteworthy that there was no quarrel on any serious matter between the parties, rather there was only some dispute relating to the allegation regarding the water to be used for their respective fields. 20. It is also noteworthy that there was no quarrel on any serious matter between the parties, rather there was only some dispute relating to the allegation regarding the water to be used for their respective fields. 20. In this view of the matter, taking into consideration, the circumstances of the case and the nature of the injury, I am inclined to hold that the case of the petitioner falls within the preview of Section 354 IPC Indian Penal Code only and his conviction for the major offence under section 307 Indian Penal Code is not sustainable. 21. The next question for determination is as to what would be the adequate punishment for the offence under section 324 Indian Penal Code. 22. Mr. Purohit submitted that the petitioner has already remained in custody for a total period of seventy days and he may therefore, not be sent behinds the bars again after the lapse of such a long period. 23. The incident relates to April 8, 1972. In view of the facts and circumstances of the case, it is not considered proper to send the petitioner behind the bars after the lapse of such a long period. 24. Hence, the sentence for the period the petitioner had remained in custody, along with the amount of fine of Rs. 200/- would in the given circumstances of the case would meet the ends of justice. 25. Consequently, the revision petition is partly allowed. The conviction and the sentence of the petitioner for the offence under section 307 Indian Penal Code is set aside and he is instead convicted for the offence under section 324 Indian Penal Code and sentenced to imprisonment for the period he had remained in custody so far and a fine of Rs. 200/-, in default of payment of fine to undergo three months simple imprisonment The petitioner is given two months time to deposit the amount of fine in the trial Court.Revision partly allowed. *******