JUDGMENT 1. -Accused-appellant-Milkhi Ram was convicted for offence under section 307 IPC and sentenced to three years' rigorous imprisonment with a line of Rs. 1,000/- and in default to undergo one years' rigorous imprisonment. For offence under section 27 of the Arms Act he was convicted and sentenced to one year's rigorous imprisonment. Both the sentences were ordered to run concurrently by learned Additional Sessions Judge, Raisinghnagar. He has assailed the finding of guilt and the sentence. 2. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length. 3. Briefly stated facts of the case are that on 18.12.1981 at about 11.30 p.m. Kashmirilal attended police station Anupgarh and reported to the effect that he himself. his uncle Ramswaroop as well as certain other persons went to Nahrawali in connection with panchayat elections. They stayed overnight. In the evening accused-appellant met him and asked him to go to ease in the jungle. Ramswaroop, Gyan Chand and Gurbaksh Singh were. following them. When they entered in nursery, it was accused-appellant who fired a shot by pistol on Kashmirilal. The reason was that Kashmirilal used to put hindrances in his illegal trade of wine. Kashmirilal made hue and cry. Then Gyan Chand, Ramswaroop and Gurbaksh Singh went there and tried to catch hold of Milkhi Ram. Milkhi Ram also made a fire on them. 4. Police registered a case under section 307 IPC and 27. of Arms pet and after investigation challan was submitted before learned Magistrate who committed it to the learned Additional Sessions Judge, Raisinghnagar who framed charges under sections 307, 326 IPC and Section 27 of Arms Act against accused-appellant. He denied his indictment and claimed trial. Then prosecution examined as many as 11 witnesses in support of its case. Accused-appellant was examined under section 313 Cr.P.C. He produced a defence witness DW I Sanwalram. Learned Additional Sessions Judge, after hearing both the parties, convicted and sentenced the accused-appellant as stated above by his judgment dated 5.10.1983. 5. Learned counsel for the appellant submitted that the appellant has been convicted on the basis of flimsy evidence and that it was not possible to identify the accused-appellant because of darkness at the place of occurrence at the time of occurrence. 5. Learned counsel for the appellant submitted that the appellant has been convicted on the basis of flimsy evidence and that it was not possible to identify the accused-appellant because of darkness at the place of occurrence at the time of occurrence. He submitted that two witnesses have turned hostile and that no empty cartridge was found at the place of occurrence, therefore, according to him the accused-appellant could not have been convicted and' he should be-acquitted. 6. On the other hand, learned Public Prosecutor has supported the judgment of trial Court. 7. So far as witnesses are concerned, the injured is the most important witness in this case. He is PW 7 Kashmirilal. He has stated that the appellant and he sent near nursery where the appellant told him that he would teach a lesson to him as he was interfering in the business of selling liquor. Thereafter the appellant took out a pistol from his pocket of his pant and fired on him. He was injured and then the appellant ran away. He further stated that Gurbaksh Singh, Gyan Chand and Ramswaroop tried to catch hold of appellant but he again made a fire and could not be apprehended. Then Kashmirilal was brought infront of panchayatghar from where he was taken to police station Anupgarh where he reported the matter to police. Learned counsel for the appellant drew my attention to the cross-examination of the witness and submitted that when the appellant was more than five feet away, he could not have been identified as the sun had started setting and there was darkness. But from the evidence I find that it were the appellant nd Kashmirilal alone who had gone to the place of occurrence and none else could have fired on Kashmirilal except the accused-appellant. So the argument that the appellant could not have seen the assailant, has no force. 8. It has been submitted that Kashmirilal could not be relied because DW I Sanwalram stated that there was enmity between Kashmirilal and the accused-appellant because Sanwalram had engaged his daughter with Kashmirilal but later on it was broken and the girl was married to Milkhi Ram. This was a reason why the accused-appellants has been involved by Kashmirilal. But I do not think that it might he a reason as no such suggestion was made to Kashmirilal in his cross-examination. This was a reason why the accused-appellants has been involved by Kashmirilal. But I do not think that it might he a reason as no such suggestion was made to Kashmirilal in his cross-examination. The defence is an after through version. 9. It was Gurbaksh Singh PW 8 who saw Kashmirilal and the appellant going towards nursery. He heard the noise of fire and when he reached at the place of occurrence he found Kashmirilal lying in injured condition; but the appellant had run away. There appears to be no reason to disbelieve this witness. Of course the two other witnesses viz. Ramswaroop PW 5 and Gyan Chand PW 6 have turned hostile but they have corroborated the fact that Kashmirilal was found injured. They have stated that they could not see the accused-appellant but they did corroborate the fact that Kashmirilal was injured. So from their evidence also it is well proved that Kashmirilal suffered injuries. 10. Kashmirilal suffered injuries is further proved by medical evidence. PW I Dr. Satya Prakash Sharma Medical Officer incharge of Government Dispensary. Anupgarh examined the injured on 19.12.1981 at 12.30 a.m. He found a circular wound 1/2 cm. around which there was blackening. PW 4 Dr. Kapil Dev Bhardwaj X-Rayed the injury and prepared reports Ex. P/6 and Ex. P/7. On examination he found a metallic radio opaque shadow 2 cm x 1/2 cm at the place where injury was caused. The injury, as per report of Dr. Satya Prakash Sharma, was grievous. Learned Sessions Judge was of the view that it may be sufficient to cause death but in view of medical evidence that the injury was not sufficient to cause death it could not be held so. There is no fracture of any bone though X-Rays were taken. 11. The argument that no empty cartridge was recovered from the site is not much material because it is well proved that the injury caused to the body of injured Kashmirilal was a gun shot wound. 12. There is evidence to the effect that the accused-appellant used arm in inflicting injury to Kashmirilal. So his conviction under section 27 of Arms Act is right. 13. 12. There is evidence to the effect that the accused-appellant used arm in inflicting injury to Kashmirilal. So his conviction under section 27 of Arms Act is right. 13. Since it is proved beyond doubt that the accused-appellant caused injury by gun-shot to the person of Kashmirilal which was not sufficient in ordinary course of nature to cause his death, the offence does not travel beyond Section 324 IPC. Consequently the conviction of the appellant should be altered from Section 307 IPC to Section 324 IPC. 14. Learned counsel submitted that the accused-appellant has remained in custody from 11.1.1982 to 8.11.1983 and it should he treated sufficient in this case. 15. In view of the above discussion, the appeal is partly allowed. Conviction of the accused-appellant from Section 307 IPC is altered to Section 324 1PC and he is sentenced to the period already undergone. Sentence of fine passed under section 307 IPC is set aside. Conviction and sentence passed under section 27 of Arms Act are maintained. Accused-appellant has already undergone beyond the period of sentence passed under this section. So he need not be sent back to jail.Appeal partly allowed. *******