KUNDAN SINGH, J, J. ( 1 ) KALLOO appellant has filed criminal appeal No. 1228 of 1978 while appellant Chauthi has filed criminal appeal No. 1382 of 197and against the Same judgment and order dated 21. 4. 1978 passed by Sri B. N. Mohiley, II. Additional Sessions Judge, Mirzapur, whereby he has convicted both of them under Section 307/34 I. P. C. and sentenced each of them to five yearst rigorous imprisonment. ( 2 ) THE prosecution case, briefly stated, is that at about 10. 30 P. M. on 2. 6. 1976 near the pumping set of Vijai Shankar Dubey in village Tilthi within police station Chilah, district Mirzapur, the injured Lallo Mishra alias Gaya Prasad, Mohan Lal Dubey and Yadunath Singh were talking about their family affairs. The appellants Kalloo and Chauthi came there is the company of one Jhallar. Kalloo and Chauthi were armed with country made pistol and on the exhortation of Jhallar, they fired on shot each, on Lallo Mishra alias Gaya Prasad on account of old enmity. The accused persons were recognised in the light of the pumping set but they could not be arrested at the spot and succeeded in making good their escape. The F. I. R. of this incident was lodged by Mohan Lal Dubey at 4. 30 A. M. on 3. 6. 1976 at police station Chilah, district Mirzapur. Thereafter the injured Lallo Mishra was examined by Dr. V. P. Gupta at 7. 00 A. M. on 3. 6. 1976. The Doctor found two abrasions, one blister and a multiple gun shot injury on the person of Lalloo Mishra. In the opinion of the Doctor, injuries Nos. 1, 2 and 3 were simple but fourth was kept under observation and advised away. That injury was x-rayed by Sri A. Habib (P. W. 10 ). After registration of the case against both the appellants and Jhallar the investigation was entrusted to Vijai Narain Pandey, Station Officer Police Station Chilah, district Mirzapur, who recorded statements of the prosecution witnesses and completed other formalities, and thereafter submitted charge sheet against all the three persons, including the appellants. ( 3 ) THE appellants denied the charge, pleaded not guilty and claimed to be tried. The prosecution examined Mohan Lal Dubey (P. W. 1), Gaya Prasad alias Lalloo Mishra (P. W. 2) and Yadunath Singh (P. W. 8) as eye witnesses of the incident. ( 3 ) THE appellants denied the charge, pleaded not guilty and claimed to be tried. The prosecution examined Mohan Lal Dubey (P. W. 1), Gaya Prasad alias Lalloo Mishra (P. W. 2) and Yadunath Singh (P. W. 8) as eye witnesses of the incident. Out of them, Yadunath Singh (P. W. 8) did not support the prosecution case and was declared hostile by the prosecution. The prosecution also examined Jai Shanker Mishra (P. W. 3) in order to prove recovery memos Ext. 1 and 3. Dr. D. D. Tripathi had operated upon the injury of injured and took out the pellets and he was examined as P. W. 4. Dr. V. P. Gupta (P. W. 5 had examined the injuries of Gaya had alias Lalloo Mishra, while P. W. 6 Kanhiaya Lal is the person who scribed the F. I. R. at the dictation of Mohan Lal Dubey. Ram Dharai Yadav (P. W. 7) Clerk Constable was examined to prove the chick report and other formalities. Vijai Narain Pandey (P. W. 9) was the Station Officer of police station Chilah and he was examined to prove the various stages of the investigations made by him, while P. W. 10 is. Dr. A. Habib, who is Radiologist and had proved the X-ray report of the injured Gaya Prasad alias Lallo Mishni. ( 4 ) THE accused persons denied the prosecution version in their statements recorded under Section 313 Cr. P. C. and stated that they have been falsely implicated in the present case due to old enmity. However, appellant Chauthi Yadav stated that he had no enmity with the complainant party and he does not know why he has been implicated in the present case. ( 5 ) THE learned Sessions Judge after considering the entire evidence on record held Kallo and Chauthi guilty of the offence punishable under Section 307/34 and he convicted and sentenced both of them as aforesaid but Jhallar accused was given benefit of doubt and acquitted. ( 6 ) LEARNED counsel for the appellants argued that the incident took place in the cover of darkness in the night and it was a hit and run affair. Single shot is said to have seen fired by each of the two accused-appellants. ( 6 ) LEARNED counsel for the appellants argued that the incident took place in the cover of darkness in the night and it was a hit and run affair. Single shot is said to have seen fired by each of the two accused-appellants. He also emphasized that it appears from the injury report that only one gun shot hit the injured and he sustained injury No. 4 as a result of one shot and the prosecution has not specifically proved as to whose shot hit the injured and who was responsible for causing that injury, while injuries Nos. 1, 2 and 3 were abrasions and blister which could have been received by friction. He also argued that at least one of the appellants has been falsely roped in the present case. ( 7 ) I have gone through the testimony of Mohan Lal Dubey (P. W. 1) and the injured Gaya Prasad alias Lallo Mishra (P. W. 2 ). They were awakened and were talking about their family affairs and there was sufficient light of the pumping set Both the accused-appellants had fired shot at Gaya Prasad alias Lallo Mishra when he was chatting with his companions and thus the witnesses were in an advantageous position to recognize the assailants correctly in the light of the pumping set. Nothing could be elicited from the statements of Mohan Lal (P. W. 1) and Gaya Prasad alias Lalloo (P. W. 2) to discredit their testimony. The evidence of Yadunath Singh (P. W.) is, however, liable to be discarded as he has not supported the prosecution case and was declared hostile by the prosecution itself. From the evidence of Mohan Lal (P. W. 1) and Gaya Prasad alias Lallo (P. W. 2) I have arrived at a conclusion that the incident had taken place in the manner as alleged by the prosecution and the learned Judge of the court below has rightly held so. ( 8 ) IN the last, the learned counsel for the appellant has argued that Dr. V. P. Gupta, who examined the injuries of Gaya Prasad alias Lallo Mishra, injured, found injuries including injury No. 4 as simple even after seeing the X-ray respondent, and that on the basis of gravity of the offence at the most a case under Section 324 I. P. C. was made out. V. P. Gupta, who examined the injuries of Gaya Prasad alias Lallo Mishra, injured, found injuries including injury No. 4 as simple even after seeing the X-ray respondent, and that on the basis of gravity of the offence at the most a case under Section 324 I. P. C. was made out. I share with the contention of the learned counsel for the appellant squarely on this point. I was carried through the statement of Dr. V. P. Gupta (P. W. 5) where he admitted that the injuries found on the person of injured Gaya Prasad alias Lalloo Mishra were simple though they were on vital pan of the body. As the injuries sustained by Gaya Prasad alias Lalloo Mishra were not grievous or dangerous to life, the offence committed by them falls within the mischief of Section 324 I. P. C. ( 9 ) LEARNED Counsel for the appellants again argued that the appellant are not previous convicts and they have already remained in jail for about 6 months during the trial and after their conviction and the sentence which is legal to be awarded to them be reduced to the period already undergone. gave my anxious consideration to this submission of the learned counsel of course, there is nothing on record to indicate that the antecedents of the appellants were bad or they are previous convict Both the appellants have already suffered imprisonment of six months during the trial and after their conviction. I think it would not be proper to send them again behind the bars after 16 years of the incident. In my opinion, each of the appellant should be convicted under Section 324/ 34 I. P. C. instead of 307/34 I. P. C. and their sentences be reduced to the period already undergone. ( 10 ) ACCORDINGLY, the appeals of both Kallo and Chauthi succeed in pan. Both the appellants are convicted under Section 324/34 I. P. C. instead of 307/34 I. P. C. and each of them is sentenced to the period already undergone. They are on bail and they need no surrender. Their bail bonds are cancelled and sureties discharged. Appeals allowed partly.