JUDGMENT 1. - This is an appeal under Section 374 Cr. PC against the judgment of conviction and sentence dated 23rd November, 1985, passed by the learned Additional Sessions Judge, Baran, in Sessions Case No. 151/1983 convicting the accused appellant under Section 307 IPC and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine he will further undergo rigorous imprisonment for one year. 2. An FIR was lodged by one Megha, PW 3, on 27th September, 1983, at about 5.30 p.m. to the effect that on the same day at about 2.00 p.m. while animals of injured Chhitar s/o Tarachand Banjara, were grazing in the field of accused appellant Madanlal, suddenly came there with topidar gun. He abused him and uttered some words to show that he will kill him. The injured told the accused appellant not to kill him but give him beating by lathi. The complainant and Mst. Shanti, sister of the injured who were standing nearby tried to save Chhitar but the appellant opened fire due to which injured Chhitar, received injuries on his person. The complainant stated that he does not know the cause of this occurence. On the basis of this information a case under section 307 IPC was registered against the accused appellant. The police made investigations. Map of the place of occurrence Ex. P 9 was prepared. Injured Chhitar, was medically examined and X-Ray of injuries were taken. Accused appellant Madanlal, was arrested and on his information under Section 27 of the Evidence Act, topidar gun was recovered alongwith licence. Statements of witnesses under Section 161 Cr. PC were recorded and challan under Section 307 IPC was filed against the accused appellant which was committed to the Court of Sessions for trial in which the accused appellant was convicted and sentenced as indicated above. 3. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor for the State and perused the record of the case. Learned counsel for the appellant Shri A.K. Gupta, has contended that the learned trial court has erred in convicting the appellant under Section 307 IPC. He has pointed out that the appellant had no motive to kill the injured and the true facts have not been stated in FIR. Learned counsel for the appellant Shri A.K. Gupta, has contended that the learned trial court has erred in convicting the appellant under Section 307 IPC. He has pointed out that the appellant had no motive to kill the injured and the true facts have not been stated in FIR. He has alleged that the complainant has deliberately not stated the correct version that took place at the time of occurrance. He has also pointed out that it is significant that the injured told appellant to beat him with lathi which goes to show that the injured was feeling guilty and was prepared to undergo punishment of beating with lathi at the hands of appellant. It has been submitted that there are 3 eye witnesses i.e. PW 4, Chhitar PW 6, Shanti, and Megha PW 3, the complainant has stated that accused came with gun and said that he had come to kill Chhitar. He tried to stop him but accused did not listen to him and fired and certain pellets hit Chhittar. He has denied that Chhittar had caught hold of wife of accused and wanted to have intercourse with her. It has been pointed out that this witness in his statement recorded under Section 161 Cr. PC recorded soon after the incident has stated in Ex. D 3 that Chhittar had told him that appellant had told him that why he had caught hold of his wife and there after opened fire. Chhitar PW 4, the injured has also stated in his statement that appellant came with topidar gun and threatened to fire at him and he requested appellant to beat him with lathi but he fired at the witness and injured him. In cross he has stated that he was not examined by police. In Ex. D 2 u/s 161 Cr. PC he has stated that when appellant came he told the witness that he had caught hold of his wife, which witness denied and requested appellant to beat him with lathi and not by gun. But he fired at the witness and was hit with pellets on right and left eye legs. Similar is the statement of PW 6 Shanti who is sister of the injured. But in her statement recorded under Section 161 Cr. PC Ex. D 4. But he fired at the witness and was hit with pellets on right and left eye legs. Similar is the statement of PW 6 Shanti who is sister of the injured. But in her statement recorded under Section 161 Cr. PC Ex. D 4. She has also stated that accused told Chhitar that he had caught hold of his wife Chhitar requested him to beat him with lathi and not by gun. The learned counsel therefore, contends that the earliest version of the statement of all eye witnesses show that the accused had no previous enmity with the injured and when came to know that Chhitar had caught hold of his wife, he lost temper and came with topidar gun which he fired towards feet of the injured only once. Thus, he had no motive to kill him. He further contends that the injury report Ex.P 6, also shows that all the 4 injuries, 3 are simple in nature. Regarding injury No.2, even though it is described as dangerous to life, the Doctor,has clearly mentioned that the opinion has to be confirmed by the detailed report after treatment at Kota, which will show if any surgery was performed as this will show the exact extent of the injury. The prosecution has failed to file any such report. This creates doubt that the injury was simple therefore, report was not filed. He has also stressed that the fact is that the gun was fired towards feet and topidar gun is usually used for scaring away animals from field, so no intention to murder can be imputed to the appellant. 4. The learned Public Prosecutor, Shri Suresh Chandra Sharma, on the other hand, has supported the judgment of the trial court and has urged that the very fact is that the appellant has used gun, goes to show that he is liable for conviction under Section 307 IPC had clear intention to kill the injured Chittar. He has further stressed that the statements recorded under Section 161 Cr. PC need not be given any weight in view of the statements recorded on oath in Court. 5. To bring the offence within the ambit of Section 307 IPC the prosecution has to prove the ingredients of this Section. He has further stressed that the statements recorded under Section 161 Cr. PC need not be given any weight in view of the statements recorded on oath in Court. 5. To bring the offence within the ambit of Section 307 IPC the prosecution has to prove the ingredients of this Section. It has to prove that the accused did the act and that the same was done with intention or knowledge either of causing death or such bodily injury which accused knew to be likely to cause death or that such injury inflicted intentionaly would be sufficient is the ordinary course of nature to cause death or if the act if completed was so imminently dangerous that in all probability would have caused-death. Keeping in view the evidence and the circumstances under which the occurrence took place, I am of the opinion that the accused had no intention to cause death. The statements recorded under Section 161 Cr, PC. Ex. D 2, Ex. D 3 and Ex. D 4 is unadulterated version of the incident recorded soon after the occurrence. The eye witnesses PW 3, PW 4 and PW 5 have deliberately avoided to give the version which was given by them in their statements recorded under Section 161 Cr. PC. Another circumstances is the fact that the gun was topidar gunwhich is used to score away the animals and the appellant had the same with under licence. It was fired towards feet which also goes to indicate that he had no intention to kill the injured Chittar. Tho injuries cause to injured are simple in nature. The injury No. 4, was considered to be dangerous to life by the trial courts but the final opinion was to be confirmed after receipt of the detailed report which has not been filed. So it cannot be held that this fourth injury, (injury No. 2) is dangerous to life. Even PW 2, Dr. Navnit Kumar, has not said so in his statement. Merely because a fire arm is used, should not lead to necessary inference in very matter that the accused had intention to kill the victim. 6. In the case of Harji v. The State of Rajasthan, 1978 RLW 1 , this court held as under:- "At the outset I may observe that the prosecution was bound to prove the intention of Harji independent of the act committed by him. 6. In the case of Harji v. The State of Rajasthan, 1978 RLW 1 , this court held as under:- "At the outset I may observe that the prosecution was bound to prove the intention of Harji independent of the act committed by him. The mere fact that Harji caused hurt to Dularam by means of any instrument for shooting is not sufficient to make out a case under Section 307 IPC against him. The requisite intention of knowledge of Harji could be established either from the nature of the injuries actually caused by him or from other surrounding circumstances e.g. any expression of his intention made by him at the time of the act, his motive to commit the crime and severity and the number of blows given by him in quick succession, the part of the body of the victim of assault selected by him for causing the injuries etc." Learned counsel for the appellant has also drawn my attention to authority of this court namely Hakim Ali v. The State of Rajasthan, WLN (UC)456 in which it was held as under:- "The prosecution has to prove that the intention of the accused for causing a particular injury was one of the three kinds referred to in Section 302 IPC or that he knew that his act was so immenently dangerous that it would have in all probability caused death. Such does not appear to be the case here. The shot was fired from some distance. The injured was hit only on the hip. The injury caused was not sufficient in the ordinary course of nature to cause death or an injury which was sufficient in ordinary course of nature to cause death. His act was also not so imminently dangerous as to in all probability cause the death. The petitioner, therefore, in my opinion could not be liable for the offence under Section 307 IPC. This court in the above case held that appellant was guilty of offence under Section 308 IPC. 7. I hold the appellant to be guilty of offence under provisions of Section 324 IPC I, therefore, partly accept the appeal and set aside the conviction under Section 307 IPC and fine of Rs. 2000/-, imposed on the appellant. This court in the above case held that appellant was guilty of offence under Section 308 IPC. 7. I hold the appellant to be guilty of offence under provisions of Section 324 IPC I, therefore, partly accept the appeal and set aside the conviction under Section 307 IPC and fine of Rs. 2000/-, imposed on the appellant. Keeping in view the nature of the offence and the circumstances under which it was committed and that the appellant is not a previous convict and an agriculturist, and has remained in jail for about 14 months, I think ends of justice shall be met by awarding him to sentence already undergone and to fine of Rs. 5,000/- (five thousand only). If the appellant fails to pay the fine he shall further undergo rigorous imprisonment for a period of two months. 8. Appeal partly allowed.Appeal partly allowed. *******