Judgment 1. Cr. Appeals No. 248 of 1989 and 262 of 1989 have been preferred against the one and the same judgment and in both the appeals, the appellants are same persons. It appears that subsequent Cr. Appeal No. 262 of 1989, preferred by the two appellants, is under wrong instruction because these appellants have already filed Cr. Appeal No. 248 of 1989. Accordingly, Cr. Appeal No. 262 of 1989 is dismissed as not maintainable. 2. This appeal has been preferred against the judgment and order dated 20-6-1989 passed by Ist Additional Sessions Judge, Patna in Sessions Trial No. 560 of 1986 convicting the appellants under Sec. 307/34, I. P. C. and S. 27 of the Arms Act and sentencing each of them to undergo rigorous imprisonment for five years and two years respectively. The sentences are directed to run concurrently. 3. The prosecution case giving rise to this appeal are as follows : On 16-11-1983 at about 8 p.m. near the house of appellant Mahendar Singh situate in village Pali, district Patna, an exchange of hot words was going on in between the appellants and Kariman (P. W. 3). It is alleged that they were drunk at that time. The exchange of hot words took a serious turn and appellants Mahendar Singh and Rajendar Singh, who were armed with pistol, fired at Kuriman but it did not hit him instead the firing hit one Basavan Yadav (informant), P. W. 5 who happened to pass by that way at the time of firing. He suffered injuries on his forehead near right eye and at other places. Several witnesses including Raja Ram (P. W. 1), Jailal Yadav (P. W. 2) Lallan Yadav (P. W. 4) and others arrived and saw the occurrence. The informant came to the Police Station and lodged the First Information Report on 17-11-1983 at 3 a.m. He was referred to the doctor P. W. 6 for treatment. 4. After investigation of the case, P.W. 7 submitted chargesheet and after cognizance, the trial proceeded in the Court below. 5. The case of the defence is that they have been falsely implicated in this case because of previous enmity. No occurrence, as alleged, took place. 6. On behalf of the prosecution, in all, 7 witnesses have been examined. 4. After investigation of the case, P.W. 7 submitted chargesheet and after cognizance, the trial proceeded in the Court below. 5. The case of the defence is that they have been falsely implicated in this case because of previous enmity. No occurrence, as alleged, took place. 6. On behalf of the prosecution, in all, 7 witnesses have been examined. Out of which P. W. 1 Raja Rai alias Raja Yadav is uncle of the informant and deposed as an eye witness of the occurrence. P. W. 2 Jailal Yadav is neighbour of the informant and is also distantly related with him. He corroborated the evidence of P. W. 1 as an eye witness and stated that both the appellants have fired which hit the informant near his eye, forehead and other parts of the body. P. W. 3 Kariman Yadav stated that both the appellants were abusing him and they were drunk. On protest, they fired but luckily it did not hit him instead the informant was injured due to the firing. P. W. 4 Lalan Yadav has also deposed as an eye witness and he supported the case of the prosecution and stated that the firing at the hands of the appellants caused injury to the informant who was removed to the doctor for his treatment. 7. P. W. 5 Baswan Yadav is informant and injured. He supported his fardbayan made before the Police and stated that at about 8 p.m. on the date of occurrence when he was going to a nearby grocery shop to purchase some articles, he was hit by the firearm fired by both the accused appellants. The pellets caused injuries near his right eye, forehead and other places of body. He fell down. He was removed to his houses and from there he went to the Police Station where his fardbayan was recorded over which he signed (Exhibit-1). He was sent to the doctor for medical treatment. 8. P.W. 6 Dr. Bishwanath Prasad examined the injured (informant) on 17-11-1983 and found the following injuries on his person :(i) one pellet wound 3 x 0.5 cm. deep upwards laterally on the lateral and on the right eye brow, and(ii) one bruise 0.5 cm. diameter on the lower abdomen 2" below and 1" right lateral to navel portion. 9. 8. P.W. 6 Dr. Bishwanath Prasad examined the injured (informant) on 17-11-1983 and found the following injuries on his person :(i) one pellet wound 3 x 0.5 cm. deep upwards laterally on the lateral and on the right eye brow, and(ii) one bruise 0.5 cm. diameter on the lower abdomen 2" below and 1" right lateral to navel portion. 9. In the opinion of the doctor, injury No. (i) was caused by firearm and injury No. (ii)was caused by hard and blunt substance. Both the injuries were simple in nature. He, further, opined that injury No. (ii) would also be caused by firearm if pellet only touches the injured. The age of injuries were within 12 hours. Injury report has been marked as Exhibit. 10. P. W. 2 Ramashish Raut is the Investigating Officer. He recorded the statement of the injured on 17-11-1983 at the Police Station at the early hours on the basis of which formal F.I.R. was drawn up (Exhibit-3). He prepared the injury report (Exhibit-4) and forwarded the injured to the doctor for treatment. He visited the place of occurrence which is near the house of accused appellant Mahendar Singh. The place of occurrence is a passage situated inside the village. The house of the appellants is situated at about 10 yards from the place of occurrence. 11. On the basis of the evidences, referred to above and after considering the facts and circumstances of the case, the trial Court has come to the conclusion that eye witnesses and the injured (informant) has supported the prosecution case and there is cogent and reliable evidence that accused appellants Rajendar Singh and Mahendar Singh has fired with an intention to kill Kariman but it did not hit him instead it hit the informant who got pellet injuries and, accordingly, came to the conclusion that prosecution has been able substantiate the charge against the appellants under Sec. 307/34, I.P.C. and also under Sec. 27 of the Arms Act. 12. The learned lawyer appearing on behalf of the appellants submitted that no case under Sec. 307/34, I.P.C. is made out against the appellants. 12. The learned lawyer appearing on behalf of the appellants submitted that no case under Sec. 307/34, I.P.C. is made out against the appellants. It is mentioned in the First Information Report that at the time of alleged occurrence, both the appellants were drunk and under the influence of intoxication, the alleged firing took place on the spur of some hot exchange of words took place in between the appellants and Kariman Yadav (P.W.3). In his evidence P.W. 3 has not stated that appellants had fired at with an intention to kill him. The case of the prosecution in the First Information Report that the alleged firing was done with an intention to kill the informant. None of the P.Ws. including the injured P.W. 5 stated that appellants had fired with an intention to kill. In absence of this basic ingredients to constitute an offence under Sec. 307, I.P.C., the appellants conviction under this section is not maintainable. 13. It was, further, submitted on behalf of the appellants that it is admitted fact of the prosecution case that appellants had no intention to cause injury to the informant. He was injured accidentally when he was passing through the way on which exchange of hot words were going on in between the appellants and Kariman Yadav, P.W. 3. Therefore, if the appellants had fired at Kariman Yadav under the influence of intoxication and not with an intention to kill him and the alleged firing caused injury to the informant. The natural conclusion would be that the appellants had not caused firearm injuries to the informant with such intention to cause his death. 14. The learned appellants lawyer, further, submitted that from the evidence of the doctor P.W. 6, it is clear that the injuries found on the person of the informant were superficial and simple in nature. This is another circumstance to show that no case under Sec. 307 is made out against the appellants. At best, a case under Sec. 324, I.P.C. read with Sec. 34 is made out against both the appellants. 15. Heard the learned A.P.P. who submitted that though the injuries were simple in nature but it was at the fatal part. This is another circumstance to show that no case under Sec. 307 is made out against the appellants. At best, a case under Sec. 324, I.P.C. read with Sec. 34 is made out against both the appellants. 15. Heard the learned A.P.P. who submitted that though the injuries were simple in nature but it was at the fatal part. However, he conceded this submission of the appellants that there is no evidence on the record to show that the alleged firing was made by the accused persons with an intention to kill either Kariman Yadav or to the informant. 16. From the submissions made on behalf of the parties and after considering the evidence on record, I find substance in the contentions made on behalf of the appellants. Prosecution has failed to prove that accused persons had fired causing injury to the informant with an intention to kill him. It is not alleged in the First Information Report or in the evidence of Kariman Yadav (P.W. 3) that the appellants had fired at with an intention to cause his death. No witness including the informant has stated that the alleged firing was made with an intention to cause death either of Kariman Yadav or to injured P.W. 5. It has also come in the evidence that it was an accidental firing which took place during the hot discussion in between the accused persons and Karimanand both the appellants were under the influence of intoxication. The nature of injury found by the doctor (P.W. 6) is simple. Informant has stated that after injuries, he went his house and from there on foot he came to the Police Station where his fardbayan was recorded. This suggests that even after the injuries caused to him by firearm, he was physically capable to move these distances on foot, as such, his injuries were not serious. He also stated that little blood has come out after the firearm injuries. These facts and circumstances supports the contention of the appellants that prosecution has not been able to make out a case to constitute an offence under Sec. 307, I.P.C. On the other hand, the facts, circumstances and evidence leads to the conclusion that both the appellants are guilty for the offence under Sec. 324/34, I.P.C. and since firearm was used, as such, under Sec. 27 of the Arms Act. 17. 17. In the result, the conviction and sentence of the appellants under Sec. 307/34, I.P.C. is modified to one under Sec. 324/34, I.P.C. However, their conviction under Sec. 27, Arms Act is confirmed. 18. The learned appellants lawyer submitted that the alleged occurrence took place on 10th November, 1983. For this long period, the appellants, have faced the agony of criminal trial. They have remained in custody for about two months. For the end of justice, their period of sentence may be reduced to the period already undergone in custody. Heard the learned A.P.P. who did not seriously objected to this submission of the appellants lawyer. 19. Both the appellants are young persons aged 35 and 40 years. Considering the circumstance in which the occurrence took place and the long period of criminal trial, I am of the view that in the end of justice, the period of sentence of the appellants under Sec. 324/34, I.P.C. and S. 27 of the Arms Act is reduced to the period already undergone in custody. 20. With this modification in the judgment and order of the Court below, the appeal is dismissed. 21. Mr. Nagendra Dubey has appeared as amicus curiae and assisted the Court with all his sincerity, the Legal Aid Committee is directed to pay his fee in accordance with law. Let a copy of this order be also given to him. 22. The appellants are on bail, Their bail bonds stand discharged.Appeal dismissed.