JUDGMENT 1. - This appeal has been preferred against the judgment dated 25.2.1993, passed by learned Additional Sessions Judge, No. 2, Sriganganagar, in Sessions Case No. 12/91, whereby he convicted the appellant for the offence under Section 307, I.P.C, and sentenced him to seven years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo rigorous imprisonment for one month. He, however, acquitted him of the offence under Section 148, IPC. He further acquitted six co-accused persons of the offence under section 147, IPC and section 307 read with section 149,1.P.C. but found co-accused Mohan Lal guilty of Offence under section 232, IPC and instead of sentencing him for imprisonment, released him on probation. 2. Stated in succinct, the relevant facts for disposal of this appeal are, that on 10.10.90 at 11:00 p.m., PW 5 Dilawar Singh lodged an oral report to the Station House Officer, Police Station, Hindumalkot, alleging that there was a dispute regarding way passing through his field, which he had already closed, that on that day at about 9dX) p.m. when he was standing near the door of his house, appellant Gurdeep Singh, alongwith six co-accused persons came there on a Tractor and told him that they will teach him a lessor for obstructing their way and that he asked them to stop by raising his hand and that thereupon the appellant fired from his pistol towards him, causing injury on his left lumbar region. He further informed that his brother Harmeet Singh, who was standing besides him, also challenged the assailants and that thereupon co-accused Hardeep Singh dealt a 'gandasi' blow on has left leg. He further informed that all the assailants were shouting that they would kill him. On this oral report, the Station House Officer drew the First Information Report Ex.P/2, registered a case under sections 17,148,307 and 149,1.P.C. and under section 27 of the Arms Act and, after usual investigation, filed the challan against the appellant and six co-accused persons in the court of learned Munsif and Judicial Magistrate, Sriganganagar, who in his turn, committed the case to learned trial Judge. The appellant was charged for offences under sections 148 and 307, IPC while the other co-accused persons were charged for offences under sections 147, 307 read with 149 IPC. The appellant and co-accused denied the indictment. The prosecution examined as many as ten witnesses. The appellant was charged for offences under sections 148 and 307, IPC while the other co-accused persons were charged for offences under sections 147, 307 read with 149 IPC. The appellant and co-accused denied the indictment. The prosecution examined as many as ten witnesses. The appellant in his plea recorded under section 313, Cr.P.C., denied the circumstances appearing against him in the prosecution evidence and asserted that he neither fired nor any pistol was recovered at his instance. He claimed that members of the complainant party were aggressors, who had inflicted grievous injuries to co-accused Hardeep Singh and Mohan Lal and, for which a cross case was registered. No oral evidence was adduced in defence. The learned trial Judge held that from the prosecution evidence, it was not established that the appellant alongwith six co-accused persons, had formed an unlawful assembly having a common object of Committing minder of PW 5 Dilawar Singh and, that on the other hand, it was a case of free-fight. He further held that since the appellant had fired from his revolver from a distance of ten feet, causing injuries to Dilawar Singh, resulting in fractures of his 11th and 12th rib, it was manifest that he intended to commit his murder. He, accordingly found him guilty for offence under section 307, IPC and sentenced in the manner indicated above.'Hence this appeal. 3. I have heard Mr. M.K. Garg, learned counsel for the appellant and the learned Public Prosecutor and carefully perused record of the lower court in extenso. 4. Shri Garg has rightly not challenged the factum of the alleged incident, wherein PW 5 Dilawar Singh sustained injuries by revolver shot, fired by die appellant. He has, however, strenuously contended that from the evidence recorded in this case, the offence made out against the appellant does not travel beyond offence punishable under Section 325, IPC and that the learned trial Judge has committed grave error in convicting the appellant for offence under Section 307, IPC. 5. On the other hand, the learned Public Prosecutor has supported the impugned judgment and reiterated the reasonings given by learned trial Judge. 6. I have bestowed my thoughtful consideration to the rival submissions. PW 1 Dr. O.P. Sharma, who examined injured Dilawar Singh, found a lacerated wound with inverted margin, 1 cm. X1/4 cm. 5. On the other hand, the learned Public Prosecutor has supported the impugned judgment and reiterated the reasonings given by learned trial Judge. 6. I have bestowed my thoughtful consideration to the rival submissions. PW 1 Dr. O.P. Sharma, who examined injured Dilawar Singh, found a lacerated wound with inverted margin, 1 cm. X1/4 cm. depth of which could not be ascertained, on the right side of his back lumbar region. This wound was oval is shape. He noticed another lacerated wound, with inverted margin, measuring 11/4 cms. X 1.0 cm. The depth of the said wound also could not be measured. This wound was on the left back posterior in the auxiliary line, 18 cms. away from injury number one. According to the Doctor, these two injuries were caused by a fire arm. He has proved medico-legal injury report Ex.P/2. The radiological examination of Dilawar Singh disclosed fracture of left 11th and 12th ribs. 7. P.W. 2 Doctor Shankar Deo, Radiologist, has proved the X-ray report and X-ray plate, Exhibits P/3 and P/4. However, both the doctors have not stated that afore-mentioned injuries sustained by Dilawar Singh were either dangerous to life or sufficient in the ordinary course of nature to have caused death. 8. Injury No. 1 of injury report Ex.R/2 was an 'entry wound', while injury No. 2 was an 'exit wound'. The Doctor did not find any blackening or tatooing on these injuries, which indicates that the gun-shot was not fired from a close range. 9. PW 5 Dilawar Singh has admitted that the appellant had fired only once. He has specifically admitted in his EI.R. Ex.P/9, that he had closed the disputed path-way, that appellant Gurdeep Singh procured an interim order of the Sub Divisional Officer on opening the said pathway and, that he filed an appeal before the Divisional Commissioner, who stayed the operation of the order of the Sub Divisional Officer. However, the prosecution has produced the alleged order of the Divisional Commissioner. P.W 5 Dilawar Singh has also admitted that regarding the same indent a cross case was registered against him and three others. However, he denied that co-accused Hardeep Singh and Mohan Lal received any injuries. This statement of Dilawar Singh is belied from a bare perusal of injury reports Exs. D/3 and D/4 and the X-ray reports Exs. P.W 5 Dilawar Singh has also admitted that regarding the same indent a cross case was registered against him and three others. However, he denied that co-accused Hardeep Singh and Mohan Lal received any injuries. This statement of Dilawar Singh is belied from a bare perusal of injury reports Exs. D/3 and D/4 and the X-ray reports Exs. D/5, D/6 and D/7, genuineness of the contents thereof were admitted by learned Additional Public Prosecutor during trial and their formal proof was dispensed with. A careful perusal of these injury reports and X-ray reports establishes that the co-accused Hardeep Singh had sustained fractures of his radius and tibia bones, while the co-accused Mohan Lal sustained a fracture of his third metacarpal with is-location of the third metacarpo-phalangeal joint of his right hand middle finger. Dilawar Singh has also specifically admitted in his cross- examination that he had initiated the dispute in respect of the pathway. 10. The learned trial Judge has already acquitted other co-accused of the offences under Sections 147 and 307/149, IPC. Thus, he has disbelieved the first version given in the EI.R. Ex. P/9, that all the assailants were shouting that Dilawar Singh be killed. In such circumstances, the intention of the appellant to commit the murder of Dilawar Singh does not stand substituted. If the appellant intended to commit murder of Dilawar Singh, he could have fired again from the revolver, but he did not do so. This fact clearly reflects that he did not have an intention to commit the murder of Dilawar Singh. As mentioned earlier, the injuries sustained by Dilawar Singh were neither dangerous to life nor sufficient in the ordinary course of nature to cause death, as per testimony of Doctors. 11. Mere fact that a fire arm was used to cause injury will not necessarily bring the case under Section 307, IPC. It cannot be presumed that the accused intended cause death simply because he used a fire-arm to cause hurt. The intention of the accused person has to be ascertained and established from the nature of the act actfully committed by him or from the surrounding circumstances. It cannot be presumed that the accused intended cause death simply because he used a fire-arm to cause hurt. The intention of the accused person has to be ascertained and established from the nature of the act actfully committed by him or from the surrounding circumstances. Where injury has artfully been caused to the victim, the prosecution has also to prove that the real intention of the accused was to cause injury, the nature of which was sufficient in the ordinary course of nature to cause death or that it was so enmitly dangerous that it would cause death and, that the accused had the intention or knowledge as contemplated under Section 307, I.P.C. It is true that the gun-shot fired by the appellant entered in the lumber region causing an exit wound on his left back near the auxiliary region and caused fracture of 11th and 12th ribs but that itself is not sufficient to prove the intention of the appellant to commit the murder of PW 5 Dilawar Singh. 12. Hence, keeping in view all the facts and circumstances of the case, I am of the considered opinion that the offence made out against the appellant Gurdeep Singh does not travel beyond offence under Section 325,1.P.C. and that the learned trial Judge had committed an error in convicting him for offence under Section 307, IPC. 13. The appellant was under custody from 26.1.1990 till 112.1.1990 and thereafter he is under detention since 25.2.1993. Thus, he has already undergone sentence of one year and 8 months and 5 days. To my mind, rigorous imprisonment for two years and a fine of Rs. 200/-, in default to further undergo one month's rigorous imprisonment, would suffice to meet the ends of justice. 14. No other point was pressed before me. 15. In the result, this appeal is partly allowed. The conviction of appellant Gurdeep Singh under Section 307, IPC is set aside. However, he is found guilty under section 325, IPC and sentenced to two year's rigorous imprisonment and a fine of Rs. 200/- (Rupees TWo Hundred Only). In default of payment, he will further undergo rigorous imprisonment for one month.The amended warrant for commitment of sentence be sent to the Jail Authorities *******