J.R. CHOPRA, J. — This is an appeal against the judgment of the learned Additional Sessions Judge No. 2, Hanumangarh, Camp Suratgarh, dated 11-6-1987 whereby the learned lower court has held the accused appellant Maniram guilty of the offence under sections 307 & 458 IPC and section 27 Arms Act and has sentenced him to 6 years rigorous imprisonment together with a fine of Rs. 500/- and in default to undergo two months rigorous impri-sonment for the offence under section 307 IPC, to undergo 4 years rigorous imprisonment together with a fine of Rs. 500/- and in default to undergo two months* rigorous imprisonment for the offence under section 458 IPC and to undergo two years rigorous imprisonment together with a fine of Rs. 200/- and in default to undergo one months rigorous imprisonment, for the offence under section 27 Arms Act. The substantive sentences were ordered to run concurrently. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that one Chananram and his brother Krishanlal owed a tractor and their tractor was hired by accused Maniram. They worked at his field for about 6 to 7 days. On the night intervening between 20th and 21st June, 1984, Chananram and Krishanlal received information from their village that their presence is required there and, therefore, they wanted to settle their account with Maniram. It is alleged that Krishanlal went to settle the account with Maniram at about 11 in the night. It is further alleged that he was given a slap by Maniram and his account was not settled Krishanlal came and reported this matter to his brother Chananram whereupon. Chananram and his brother-in-law (gainer) Banwarilal went to the house of Maniram and asked him not only to settle the account but called his explanation as to why he gave a slap to Krishan Lal. Maniram refused to settle the account and went inside his house. It appears that sensing trouble Banwarilal and Chananram ran away from that place and went to house of Begaram. Latter, it is alleged that Maniram came to the house of Begaram at about 12 or 12. 15 in the night and asked where Chananram is? On this Chananram who was sleeping there woke up and fold that he is there. It is alleged that at that point of time. Latter, it is alleged that Maniram came to the house of Begaram at about 12 or 12. 15 in the night and asked where Chananram is? On this Chananram who was sleeping there woke up and fold that he is there. It is alleged that at that point of time. Maniram fired from his pistol at Chananram by which, he received injuries. The matter was reported to the Police by the injured himself at about 8.15 A.M. on 21-6-1984. 3. The police registered a case under sections 307, 324 and 458 IPC read with section 27 Arms Act against the accused - appellant and after usual investigation, the case against the accused-appellant was challaned in the court of learned Munsif & Judicial Magistrate, Suratgarh, from where, it was committed for trial to the court of learned Addl. Sessions Judge No. 2, Hanumangarh, Camp Suratgarh, who after holding trial, convicted and sentenced the accused-appellant as aforesaid. Hence this appeal. 4. I have heard Mr. M.K. Garg, the learned counsel appearing for the accused-appellant and Mr. S.K. Mathur the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 5. Mr. M.K. Garg, the learned counsel appearing for the accused-appellant has submitted that even if it is held that accused Maniram has fired from his pistol and has injured Chananram, the offence does not travel beyond section 324 IPC because the fire has taken its full effect and has caused only simple injury and that too on non-vital organ of the body. He has further submitted that the offence under section 458 IPC is not made out against the accused-appellant. He does not contest the conviction of the accused under section 27 Arms Act He has, however, submitted that the accused has already remained in custody from 5-6-1984 to 24-8-1984 and thereafter he has remained in custody from 11-6-1987 till today and therefore in the fact and circumstances of this case the sentence served out by him would meet the ends of justice. 6. 6. The learned Public Prosecutor has submitted that, firstly the accused Maniram engaged the tractor of the complainant to work at his field for 7 days and when the complainant asked him to settle the account he refused to settle the account and not only he slapped Krishna Lal but when Chananram and his brother-in-law Banwarilal went to settle the account he refused to settle the account and thereafter, entering into the house of Begaram, he inflicted injuries with gun shot to Chananram and, therefore, the judgment of the learned lower court is perfectly justified and should not be interfered. 7. I have given my most earnest consideration to the rival submissions made at the bar. 8. In this case it is not disputed that Maniram fired from his country made pistol at Chananram and Chananram has been injured in this incident. PW 1 Dr. Sahiram has stated that he examined Chananram on 21-6-1984. He found one round wound with inverted marks on his left buttock. He found two other wounds. (1) Gun shot wound (wound of entrance) 1/2" circular lacerated wound (margins are inverted and bruised). (2) Gunshot lacerated wound 1/2" circular (margins are inverted and bruised) wound of entrance. According to the Doctor, these injuries have been caused by fire arm. No tatooing and blackening of skin were found by the Doctor. According to the Doctor, all the wounds were at more than 6" distance from each other. No wound of the exist was seen. The Docter has further stated that the injuries have not hit any vital organ. The blood-pressure of the injured was normal. 9. The prosecution has examined PW 2 Chananram PW 3 Krishan Lal, PW 4 Banwarilal, and PW 5 Patram as alleged eye-witnesses of the occurrence. These witnesses have stated that Maniram fired from his pistol on Chananram. It is not alleged that any person intervened and that the fire did not take its full effect on account of the intervention. It is therefore, clear that the fire was aimed at the lower part of the body and it has caused simple injuries. These witnesses have stated that Maniram fired from his pistol on Chananram. It is not alleged that any person intervened and that the fire did not take its full effect on account of the intervention. It is therefore, clear that the fire was aimed at the lower part of the body and it has caused simple injuries. When pistol shot takes its full effect and causes simple injuries on the non-vital part of the body, it cannot be considered to be a case where the accused might have intended to kill his victim or to cause him such injuries as were likely to cause his death and therefore the case cannot travel beyond section 24 IPC. I. therefore, agree with Mr. M. K. Garg, the learned counsel appearing for the accused - appellant that actually offence under section 324 IPC is made out against the accused appellant and the learned lower court has erred in holding the accused guilty of the offence under section 307 IPC. In this respect, I get support from a decision of this Court in Pannalal vs. State of Raj. (1), wherein the injuries caused by a gun shot were found to be simple in nature and, therefore, the conviction under section 307 IPC was altered under sec. 325 IPC. 10. My attention was also drawn to a Division Bench decision of the Allaha bad High Court in Bhagwan Din vs. State (2) wherein it has been observed: "The mere fact that a fire-arm was used to cause injuries to the victim will not necessarily bring the case under section 307. There can be no presumption that the accused intended to cause the death merely because he used a fire-arm 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 has further to establish the intention or knowledge of the accused as contemplated in section 307 IPC. The burden of proof is on the prosecution and not on the accused". The burden of proof is on the prosecution and not on the accused". The learned counsel appearing for the accused-appellant has also invited my attention to Kundan Singh v. State of Punjab (3) Of course, that was a case of gun-fire. Their Lordships of the Supreme Court held that the accused did not intend to injure the injured person and, therefore, the conviction under section 307 IPC was altered to one under section 324 IPC. The facts of that case are distinguishable with the facts of the case in hand and; therefore, this authority cannot help in arriving at a correct conclusion in the case. However, so far as this case is concerned, the accused intended to cause injuries to the injured. The pistol was fired and it took its full effect without any intervention and as such the result of the injuries must guide the court in arriving at a conclusion as to what offence is made out in the facts and the circumstances of this case. In this case the injuries have been caused to the non-vital parts of the body of the injured and they are simple in nature and, therefore, the accused - appellant should have been held guilty of the offence under s 324 IPC rather than sec. 307 IPC. 11. So far as the offence u/s 458 IPC is concerned, it is not made out against the accused. The case of the prosecution is that the roof of the house of Begaram descended in his Chowk through the stair-case where Chananram was sleeping. This story is denied by Chananram himself. PW 2 Chananram has stated in his cross-examination that he was sleeping under the sky. He has further stated that he was sleeping under the sky in a place which is outside the main gate. He has further stated that when he heard the challenge of Maniram he went inside the house and fell on the Charpai on which he was sleeping and then came out. This is not the story of the prosecution that although he was sleeping outside the main gate, he went inside the house on hearing the challenge of Maniram and then came out. Rather, the case of the prosecution is that he was sleeping in the inner chowk of the house and was available there. This is not the story of the prosecution that although he was sleeping outside the main gate, he went inside the house on hearing the challenge of Maniram and then came out. Rather, the case of the prosecution is that he was sleeping in the inner chowk of the house and was available there. PW 3 Krishan-lal had stated that Chananram was hit near the Angan and as soon as he was hit he fell down. He does not support Chananram that he went inside and was hit inside the house and then came out. Thus, the case of the prosecution regarding the offence under section 458 IPC becomes highly doubtful and the benefit of doubt should be given to the accused. I therefore, feel that the learned lower court was not justifi-ed in holding the accused guilty of the offence under section 458 IPC. 12. So far as the conviction of the accused-appellant under section 27, Arms Act is concerned, it has not been challenged before me. 13. In the result, I partly accept this appeal. The conviction and sentence recorded against appellant Maniram under Sec. 458 IPC is set aside. However, the conviction of accused-appellant under section 307 IPC is modified and instead he is held guilty of the offence under section 324 IPC and for this offence, he is sentenced to the period of his custody alongwith a fine of Rs. 500/- and in default, to. undergo three months rigorous imprisonment. The conviction of accused-appellant under section 27 of the Indian Arms Act is maintained but the sentence of two years rigorous imprisonment together with a fine of Rs. 200/- is reduced and he is sentenced to the period of his custody together with a fine of Rs. 200/-and in default to undergo one months rigorous imprisonment. The substantive sentences shall run concurrently. 14. Let information of the altered sentences be communicated to the jail authorities immediately.