JUDGMENT 1. The appeal is directed against the conviction of the appellant u/s 307 and 323 I.P.C. whereunder he had been sentenced to R.I. for five years together with fine of Rs. 200/- and for three months together with fine of Rs. 100/- on respective counts in Sessions Trial No. 88/90 by Shri L.L. Shukla, First Addl. Sessions Judge Shahdol vide Judgment and order dated 9.8.91. 2. That the appellant is an Upper Division Clerk in the Forest Department and at the relevant time was posted in the North Forest Division Shahdol. An occurrence took place on 30.11.89 regarding which a report was lodged with the police at the police station Kotwali Shahdol at about 4 a.m. The occurrence is of 3 a.m. Prosecution case in brief is that on 30.11.89 at 3 a.m. the accused Divakar Mishra went to the house of Rameshwar Gupta and pressed the call bell whereat Rameshwar Gupta came out of his house and told "why are you disturbing me in the night, you may meet me in the morning." the accused was not satisfied with this reply and he started shouting whereat Shri Shailesh son of Rameshwar Gupta also came out and the accused grappled with Rameshwar Gupta and gave beating to him by Danda which he was having in his hand which hit him on the right side of his eye and bleeding started. Shailesh Kumar tried to pacify the accused but the accused also hit him with Danda which injured him on the left side of his neck. During this scuffle, the accused-appellant also received injuries. On hearing hue and cry, the neighbours gathered there and one of the neighbours was Avinash Mishra. They tried their best to pacify the matter and the major role was played by Avinash Mishra but the accused-appellant thought that Avinash Mishra got him beaten and therefore he became hostile to Avinash Mishra. In this process he went to his house and returned with 12 bore gun and went to the house of Avinash Mishra. At that time, all the neighbours including Rameshwar Gupta and his son were inside their respective houses. The accused-appellant fired through the window but it did not hit any body and did not injure any body in the house. It was pellet and not the bullet. At that time, all the neighbours including Rameshwar Gupta and his son were inside their respective houses. The accused-appellant fired through the window but it did not hit any body and did not injure any body in the house. It was pellet and not the bullet. Some of the pellets struck to the tubelight and the tubelight was broken and broken particles caused some injuries to the mother of Avinash Mishra. Thereafter, Avinash Mishra, at 4 a.m. went to the police station and lodged the report. 3. In the evidence it has not been disclosed either from the prosecution side or from the defence side as to for what purpose, the accused-appellant in the odd hours of the night, visited the house of Rameshwar Gupta. The testimony of P.W. 2 Shailesh has given some indication regarding the purpose of the visit that he wanted to take money from Rameshwar Gupta. In the evidence it has also come that the accused-appellant was under intoxication and he has explained that he used the Ayurvedic medicine. There are Ayurvedic medicines which are no less than the liquor in their affect like Sanjivani Sura etc. If a person takes it volume by volume, it is sufficient to create intoxication. The appellant has been convicted after assessing the evidence. He has been convicted for causing injury to Rameshwar Gupta and his son Shailesh Kumar u/s 323 I.P.C. and for subsequent act he was convicted u/s 307 I.P.C. as he went with the deadly weapon again immediately after the aforesaid pacification by Avinash Mishra with the motive to cause his death. 4. Learned counsel for the appellant read the evidence of PW 11 Avinash Mishra, PW 1 Rameshwar Gupta and P. W. 2 Shailesh Kumar. From the evidence the appellant cannot be held to be innocent. Though the circumstances are such which require some sympathetic consideration. Learned counsel for the appellant submitted that the circumstances of the case are such that the Court may consider for releasing the appellant on probation of good conduct for the reasons that the appellant is a Government servant and having his family to maintain and to meet the liability of the family members and also regarding the marriage of his daughters. 5. 5. Learned counsel for the appellant also submitted that it is a case where the appellant neither had any intention nor the knowledge, under the circumstances of the case, the act has been done by him as he was under intoxication and he did not approach Rameshwar Gupta with the intention of causing him or with knowledge for causing him such hurt which may cause any injury or death. So far as his approach to Avinash Mishra is concerned, learned counsel submitted that he has neither any intention or knowledge to cause him any such bodily injury which could have caused death to him as he had no previous animus and whatever has come in the prosecution evidence, that only establishes that all of a sudden he got excitement and brought a gun and went to the house of Avinash Mishra which was closed from inside. He only fired from the window without any intention or knowledge to cause any death as he was not aware from outside as to who is inside the house and where the inmates of the house are sleeping or sitting. He further pointed out that intention might also be gathered from the circumstance that he had fired the pellet cartridges and not the bullet cartridges. According to the learned counsel, the cumulative affect of this go to establish that the appellant cannot be fastened with the liability of such a serious offence u/s 307 I.P.C. 6. So far as the submission of the learned counsel is concerned, it has some substance, but the appellant cannot be acquitted as it has also come in evidence that he has disturbed the other person and he had no business to approach Rameshwar Gupta in the odd hours of the night. No injuries were cause by the direct act of the firing made by the appellant. Though the injury is there on the person of the mother on account of the broken tubelight. 7. So far as section 86 I.P.C. is concerned, the appellant cannot be given benefit as he was not intoxicated by some body else and for such intoxication, no advantage can be given to him. This does not mitigate the liability of the appellant. 8. 7. So far as section 86 I.P.C. is concerned, the appellant cannot be given benefit as he was not intoxicated by some body else and for such intoxication, no advantage can be given to him. This does not mitigate the liability of the appellant. 8. Then, the learned counsel for the appellant submitted that so far as the conviction of the appellant u/s 323 I.P.C. is concerned, they cannot be dealt with for submission that no guilt can be fastened on him under this score; but so far as the liability u/s 307 I.P.C. is concerned, learned counsel for the appellant has submitted that in view of the facts and circumstances of the present case, as has been stated above, the conviction of the appellant u/s 307 I.P.C. may be converted to section 336 I.P.C. section 336 I.P.C. reads as under :- 336. Act endangering life or personal safety of others.-- Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both." Learned counsel for the appellant submitted that it was on account of the effect of the intoxication that the appellant acted rashly and negligently, otherwise there was neither any intention nor any such motive nor enmity which could have made the appellant to commit an offence which may likely to cause death. The act, according to him, was purely a rash and negligent. Therefore, his liability for conviction can be fastened only u/s 336 I.P.C. 9. Heard the learned Govt. Advocate on this aspect also. Learned Govt. Advocate, so far as the facts and circumstances of the case are concerned, could not point out any such thing which may disentitle the appellant from setting aside the conviction u/s 307 I.P.C. So far as section 336 I.P.C. is concerned, learned Govt. Advocate submitted that in the facts and circumstances of the case, the act of the appellant is both rash and negligent. Advocate submitted that in the facts and circumstances of the case, the act of the appellant is both rash and negligent. It is a different thing that the fire did not hit any person, but under the effect of intoxication, the appellant of course went there to cause harm to the inmates of the house and the circumstance under intoxication cannot be assessed regarding the intention or knowledge unless the background regarding the intention and knowledge is there. In the case, the background regarding the previous enmity is not there and the witness P.W. 2 has also stated that there was neither any previous enmity nor motive. 10. In view of this I am inclined to convert the conviction of the appellant from section 307 to 336 I.P.C. and convict the appellant accordingly. 11. As regards the sentence, the learned counsel for the appellant submitted that it is a case where the appellant may be given the benefit under the provisions of section 4 of the Probation of Offenders Act, 1958. He further submitted that the circumstances of the case are such that the Court may consider for releasing the appellant on probation of good conduct for the reasons that the appellant is a Government servant and having his family to maintain and to meet the liability of the family members and also regarding the marriage of his daughters. Learned counsel for the appellant also submitted that it is a case where the appellant was under intoxication and the motive as it appears from the report is to take money from Rameshwar Gupta for having more intoxication and this act had resulted in his conviction which will have adverse impact, not only on him but also on his family, whose liability for maintenance rests on him. He is an aged man of 54 years and at such an advanced age, a person is not likely to get other means of livelihood. Learned counsel further submitted that in view of the decision in Rajvir v. State of Haryana [ AIR 1985 SC 1278 (Para 4)] where the Court granted the benefit of the provisions of Probation of Offenders Act, 1958 on compassionate ground and circumstance that the accused in that case was in Government service. If the conviction and sentence is maintained, he would lose his service. 12. In the present case, the appellant is also a Govt. If the conviction and sentence is maintained, he would lose his service. 12. In the present case, the appellant is also a Govt. servant and the same consequences will blow on him. Under the circumstances of the case, the appeal is partly allowed to the extent that the conviction is converted from 307 to 336 I.P.C. and conviction and sentence as imposed u/s 323 I.P.C. is maintained. As regards the sentence u/s 336 I.P.C. instead of sentencing the appellant at once u/s 336 I.P.C., he is directed to be released on probation of good conduct. Accordingly, I direct that the sentence of the appellant u/s 323 I.P.C. is suspended and he be released on probation of good conduct on his executing a personal bond to the tune of Rs. 25,000/- for a period of three years from maintaining peace and exhibiting good conduct and decent behaviour. The appellant in case he is found not maintaining peace and not exhibiting good behaviour or is indulged in any crime, the benefit awarded under the beneficial legislation shall stand automatically revoked and the appellant shall be called upon to serve the sentence as imposed upon him u/s 323 I.P.C. and u/s 336 I.P.C., he shall be required to serve the sentence of two months' R.I. together with fine of Rs. 200/-. Further, the appellant is on bail. He is required to appear before the C.J.M. Shahdol for executing the bond u/s 4 of the Probation of offenders Act, 1958 as aforesaid, on 16.8.94 together with the certified copy of this order and till then, he shall remain on bail. On his executing the bond as aforesaid, his bail bond shall stand cancelled and the surety shall stand discharged. In case of default in execution of the personal bond, the appellant shall be taken into custody to serve out the sentence as has been imposed upon him.