JUDGMENT 1. - This criminal appeal preferred by Geetam is directed against the judgment of the Additional Sessions Judge, Dholpur, dated 23-12-75 by which the appellant was convicted under Sections 307 I.P.C. and section 27 of the Indian Arms Act and was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 200/-, in default of payment of fine to suffer further rigorous imprisonment for 6 months on the first count and on the second, to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo imprisonment for 3 months. The substantive sentences of imprisonment on both the counts were ordered to run concurrently. 2. The prosecution case against the appellant was follows:- On 10-11-73 Mangla was lying on a cot under a shade along with Shiv Singh and Tula Ram in front of the house of Khoob Lal and Devi Singb. One Beedha was also sitting on the cot by the side of Mangla. On another cot near the cot of Mangla there were sitting Jal Singh and Ram Dayal, who were smoking Bidies. After a short-while, two persons namely, Vidhya and Kalwa Joshi also came there and enquired about Geetam appellant. Mangla and his companions told them that the appellant had not come there. There upon Vidhya and Kalwa Joshi went away from there. Sometime after their departure the appellant came to Mangla and his companions and asked them to give him a Bidi for smoking. Mangla gave Geetam appellant a Bidi for smoking, which he smoked by taking in two puffs. The appellant then asked Mangla and his companions whether they knew him. Mangla and his companions replied him in affirmative. The appellant then told them that he belong to the gang of Mora dacoit and that he had come to kill a man. They should give evidence in his favour about his good character and in case, otherwise, he would kill them. Mangla refused to give evidence. There-upon, Geetam appellant became angry and declared that he would kill Mangla. Saying this, he took out a country made pistol from the folds of his Dhoti, loaded it with pellets and fired a shot at Mangla, as a result of which, Mangla sustained several injuries on his person. After firing the shot, Geetam appellant ran away from there. There-upon, Geetam appellant became angry and declared that he would kill Mangla. Saying this, he took out a country made pistol from the folds of his Dhoti, loaded it with pellets and fired a shot at Mangla, as a result of which, Mangla sustained several injuries on his person. After firing the shot, Geetam appellant ran away from there. The villagers namely, Bhoop Singh, Ramu and other persued Geetam appellant, while Tula Ram rushed to lodge a report about this incident with the police at police Station, Sepau. At 3-30 P.M. the very day, Tula Ram lodged a verbal report Ex. P-l with the police. On the basis of this report, the police registered a criminal case under section 307 IPC. and took-up usual investigation into the matter In the course of investigation, Mehar Singh, Head Constable, police station, Sepau inspected the site, prepared a site plan and took into his possession one shera of the cot which bore marks of pellets on it. Mehar Singh then arrested the appellant vide memo of arrest Ex. P. 4 and seized one country made pistol from the possession of the appellant at the time of his arrest. Mangla and Beedha, who received pellet injuries on their bodies were sent to the Medical Jurist at Sadar hospital, Dholpur for medical examination, Dr. Shanker Prasad Saxena examined Mangla and found the following injuries on his person : (1) Three Gun shots wounds with blackening of surrounding skin each 1/10x1/10" on the anterior aspect of right leg mid 1 /3rd each in diamater of 2 inches radious. (2) Gun shot wounds two in number. One on the tip of right great toe and other on right middle finger of right foot coupled with blackening of skin each of the dimension of 1/10" x 1/10". He advised X-ray examination of the right leg mid ⅔rd and right toe feet for finding out pellets. Mangla's right leg and right foot were x-rayed in the presence of doctor Shankar Prasad Saxena. Upto X-ray examination, it was found that there were three pellets in the right leg and seven pellets in the right foot of Mangla. Beeda also was found, upon examination, to have sustained Gun shot wounds about 20 uppertures in number coupled with bleeding and blackening of skin all round on the left knee. Upto X-ray examination, it was found that there were three pellets in the right leg and seven pellets in the right foot of Mangla. Beeda also was found, upon examination, to have sustained Gun shot wounds about 20 uppertures in number coupled with bleeding and blackening of skin all round on the left knee. There were about 100 small uppertures of `Zeera' size near about the gun shot wounds. The left knee of Beeda was x-rayed in the presence of Doctor Shankar Parasad Saxena. The X-ray examination revealed that there were 100 pellets in the left knee. According to the opinion of doctor Shanker Prasad Saxena, the injuries found on the persons of Mangla and Beedha were simple in nature because the pellets had not caused fracture of their any bone. Shiv Singh also was examined. He was examined by Dr. B.K Sharma who found one abrasion on the back of middle third of right forearm. This injury was simple in nature and its duration was about 24 hours - 3. The Investigating Officer collected other evidence in the case and eventually filed a charge sheet against the appellant under Section 307 IPC and section 27 of the Indian Arm Act in the court of Munsif Magistrate, Dholpur, who upon finding a prima facie case exclusively triable by the court of Sessions, committed the appellant to the court of Additional Sessions Judge, Dholpur for trial under Section 307 IPC and Section 27 of the Indian Arms Act. The learned Additional Sessions Judge tried the appellant for the aforesaid and found him guilty thereof. He accordingly convicted and sentenced the appellant in the manner indicated above. 4. I have carefully pursued the record and Mr. J.K. Singhi, learned counsel for the appellant and Mr. Ajay Purohit, learned Public Prosecutor for the State. Mr. J.K. Singhi contended before me that the trial Judge committed an error in convicting the appellant under section 307 IPC and Section 27 of the Indian Arms Act in the absence of any cogent, clear and unimpeachable evidence. He further urged that the prosecution utterly failed to bring guilt home to the appellant on both the counts. In the course of arguments, Mr. He further urged that the prosecution utterly failed to bring guilt home to the appellant on both the counts. In the course of arguments, Mr. J.K. Singhi took me through the statement of eyewitnesses and tried to convince me that the evidence of eye witnesses produced by the prosecution does not fit in with the probabilities and being discrepant, is highly unworthy of credence. The Public Prosecutor, on the other hand, argued that the evidence of the eye witnesses does not suffer from any infirmity and has been rightly relied upon by the trial Judge after close and careful scrutiny thereof. The Public Prosecutor further submitted that the appellant ran away after firing a shot at Mangla from his country made pistol, but he was chased and caught hold of by some inhabitants of the village. According to the Public Prosecutor the intention of the appellant was to kill Mangla because without any lawful excuse, he fired a shot from the close range and the pellets of the shot hit Mangla and Meedha. 5. I have considered the above rival contentions. At the outset, I may observe that the prosecution examined Tula Ram (PW I), Shiv Singh (PW 2), Mangla (PW 3), Beedha (PW 4), Bhoop Singh (PW 5), and Ram Dayal (PW 6) to substantiate its case against the appellant. Upon careful scrutiny of their evidence, I am of the view that the trial Judge committed no error in placing reliance upon it. From the testimony of these eye witnesses, it is established beyond reasonable doubt that Geetam appellant fired a shot from his country made pistol at Mangla, as a result of which Mangla and Beedha sustained injuries, Learned counsel for the appellant could not succeed in assailing the evidence of these eye witnesses. His contention that these eye witnesses were interested in the prosecution, is not correct because there is nothing on the record that any of them was inimical to the appellant. On behalf of the appellant, it was argued that relations between the appellant and his brother Pooran were strained and on account of some litigation, between the two and that Mangla, being a friend of Pooran, falsely implicated the appellant in this crime. On behalf of the appellant, it was argued that relations between the appellant and his brother Pooran were strained and on account of some litigation, between the two and that Mangla, being a friend of Pooran, falsely implicated the appellant in this crime. The above contention also is devoid of force because soon after the commission of crime the appellant ran away from the place of occurrence and was chased by Bhoop Singh and Ram Dayal, who, with the help of other villagers succeeded in catching hold of him. Merely because Mangla happens to be the friend of the brother of the appellant, it cannot be held that he concocted a false case against the appellant on account of strained relations between the two brothers (Pooran and appellant). Consequently, I agree with the findings of the trial court that the appellant was responsible for causing injuries to Mangla and Beedha by firing a shot from his country made pistol. Learned counsel for the appellant further contended that the injuries received by Mangla and Beedha were simple in nature and none of them was singly or cumulatively dangerous to their lives. Apart from this, the injuries were not caused on any vital part of their bodies. Hence in these circumstances, the requirement that the act must be done with such intention or knowledge or under such circumstances that is death be caused by that act, the doer or the act would be liable to murder, was not fulfilled and the conviction of the appellant should have been under section 324 IPC. The above contention is not devoid of force. The appellant fired a single shot from his country made pistol at Mangla. Any vital part of the body of Mangla was not aimed at by the appellant, while firing the shot. If there had been any intention on the part of the appellant to kill Mangla, he would have surely aimed at some vital part or parts of his body. The evidence of the medical witness clearly reveals that the pellets hit the right leg mid ⅓rd and right middle finger of right foot and the tip of right toe of Mangla. Likewise, Beedha received pellet injuries on his left knee. No pellet injuries were found on the upper portion of their bodies above their legs. The evidence of the medical witness clearly reveals that the pellets hit the right leg mid ⅓rd and right middle finger of right foot and the tip of right toe of Mangla. Likewise, Beedha received pellet injuries on his left knee. No pellet injuries were found on the upper portion of their bodies above their legs. It is do doubt true that for the offence of attempt to murder under Section 307 IPC., it is not necessary that any hurt or injury must have been caused by the act of the accused but, where the injuries are caused, the nature and number of the injuries and the parts of the body on which they are caused, may be taken into consideration in coming to a finding on the question of intention or knowledge in section 307 IPC. In the present case, the prosecution could not establish beyond reasonable doubt that the appellant intended to kill Mangla or Beedha or intended to cause such injuries to them as were sufficient in the ordinary course of nature to cause death or had the necessary knowledge to do so. His conviction under section 307 IPC cannot be upheld merely because he used fire arms and caused some injuries to non vital parts of the bodies of Mangla and Beedha. It will not be out of place to mention that Shiv Singh also had an abrasion on his light force arm but doctor who medically examined him, clearly opined that this injury was not caused by a gun shot but was caused by some blunt object. 6. For the reasons mentioned above, I am of the view that the offence committed by the appellant falls within the ambit of Section 324 IPC and the Additional Sessions Judge went wrong in convicting him for the offence of attempt to murder punishable under Section 307 IPC. 7. As regards offence punishable under Section 27 of the Indian Arms Act, suffice it would be to say that the appellant was found in possession of a country made pistol at the time of his arrest without having a licence thereof. In the absence of any evidence that the pistol recovered from the possession of the appellant was the same pistol which was used by him in the commission of the crime, it is difficult for me to up-hold his conviction under Section 27 of the Indian Arms Act. In the absence of any evidence that the pistol recovered from the possession of the appellant was the same pistol which was used by him in the commission of the crime, it is difficult for me to up-hold his conviction under Section 27 of the Indian Arms Act. The prosecution ought to have got the pistol-1 examined by the Ballistic expert with a view to ascertain whether any shot was fired from it. No reasonable explanation is forth coming from the side of the prosecution as to why the pistol was not sent to the Ballistic Expert for examination. Consequently, I am unable to hold that the pistol recovered from the possession of the appellant was used by him for firing a shot from it at Mangla. Apart from this, there is no proof on the record that the appellant had pistol in his possession with intent to use the same for unlawful purpose. The appellant, no doubt, is guilty under Section 25 (1) (a) of the Indian Arms I Act because he was found in possession of the country made pistol without obtaining any licence for it. 8. The next question that arises for determination is what should be the sentences under Section 324 IPC and Section 25 (I) (a) of the Indian Arms Act. Learned counsel for the appellant submits in this behalf that the appellant has already served out sentence of rigorous imprisonment for a term of 70 days, and, prior to his conviction and sentence, he remained in detention during the investigation, enquiry and trial of the case for a period of about 2 years 1 month and 13 days. Learned counsel further urged that it is evident from the record itself of that the appellant is a bagger and is unable to pay the amount of fine imposed on him by the trial Court. According to his submission, the ends of justice would be met, if the sentences passed against him on both the Courts are reduced to a term already under-gone by him and the sentence of fine and imprisonment in default of payment of fines are set aside. 9. I have considered the above contention and I find force in it. According to his submission, the ends of justice would be met, if the sentences passed against him on both the Courts are reduced to a term already under-gone by him and the sentence of fine and imprisonment in default of payment of fines are set aside. 9. I have considered the above contention and I find force in it. As the appellant has already served out substantive sentence of rigorous imprisonment for about 70 days and the period of detention undergone by him during the investigation, enquiry and trial of case and before the date of his conviction was about 2 years, 1 month and 13 days and as his convictions are altered from Section 307 IPC and 27 of the Indian Arms Act to Section 324 IPC and Section 25 (1) (a) of the Indian Arms Act, the ends of justice would be met, if his sentences are reduced to a term already under-gone by him and the sentences of fine are set aside. 10. The result of the above discussion is that I partly accept the appeal of the appellant Geetam and alter his convictions under Section 307 IPC and Section 27 of the Indian Arms Act to Section 324 IPC and Section 25 (1) (a) of the Indian Arms Act and reduce his sentences on both the counts to the terms already under gone by him. The sentences of fine and the terms of imprisonment in default of payment of fine on both the counts are set side. The appellant is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeal Partly Allowed. *******