JUDGMENT 1. - This appeal is directed against the judgment and order dated 22.6.2001 passed by the learned Additional Sessions Judge. No. 1 (Fast Track), Dholpur, by which the learned Additional Sessions Judge convicted the accused appellant Vijay Singh under Section 307 IPC and sentenced him to undergo rigorous imprisonment for seven years with a fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. 2. The material facts of the prosecution case in nut shell giving rise to this instant appeal are as follows:On 23.12.1995 PW.14 Om Dutta received a requisition from General Hospital; Dholpur to record the statement of injured Munsi Lal, who was admitted as in indoor patient. He reached there and recorded the statements of Munsilal Ex.P13 and sent the same to the Police Station, Sepau for further action. PW.15 Bid Singh, ASI, who at the relevant time, was posted at Police Station, Sepau received the statement. Injured Munshi Lal has stated in his Parcha Bayan that on 23.12.1995 at about 4.00 PM while he was on way to his house, accused Vijay Singh met him and fired 12 bore gun, which hit on his waist, as a result thereof, he fell down. He further stated that accused was having enimocity with him and that he opened fire with an intention to kill him. On the basis of this Parcha Bayan, the ASI registered a case vide FIR Ex.P.14. He also recorded the statements of injured and other witnesses under section 161 Cr.P.C.3-4. In the course of investigation, PW15 Biri Singh took in possession the cloth of injured vide memo Ex.P2. He inspected the site and prepared site plan Ex.P.1. On 23.12.1995 Dr. K.K. Agarwal examined the injured and found following gun shot injury on his body: "Multiple punctured wound about 5cm x 6cm over the back at right side of chest, infrascapular region, surrounded by swelling of 10cm x 10cm. 5. On the requisition of Dr. K.K. Agarwal, Shri Gurelal, Radiographer took X-ray of the chest of injured in the presence of PW 11 Dr. R.C. Goyal, on the basis of X-ray plates, Ex.P11 and P12 Dr. R.C. Goyal opined in Ex.P10 that there are multiple radio opaque shadows rounded in shape seen in soft tissues of therosic region.6. 5. On the requisition of Dr. K.K. Agarwal, Shri Gurelal, Radiographer took X-ray of the chest of injured in the presence of PW 11 Dr. R.C. Goyal, on the basis of X-ray plates, Ex.P11 and P12 Dr. R.C. Goyal opined in Ex.P10 that there are multiple radio opaque shadows rounded in shape seen in soft tissues of therosic region.6. On completion of investigation, the police submitted a charge sheet against the accused appellant in the court of judicial Magistrate, Dholpur. The learned Magistrate having found the case exclusively triable by a court of Sessions, committed the case to the court of Sessions.7. The case came to be tried by the Additional Sessions Judge No. 1 (Fast Track Court), Dholpur. The learned trial court after hearing arguments of counsel for the parties and having gone through the material placed before it, framed charge under Section 307 IPC. The accused denied the charge and claimed trial.8. During trial, the prosecution, in support of its case, examined as many as 17 witnesses and exhibited some documents. Thereafter, the accused was examined under Section 313 Cr.PC. The accused did not examine any witness in his defence. At the conclusion of trial, the learned trial court found the prosecution case as alleged proved and accordingly convicted and sentenced the appellant as indicated hereinabove. Dr. Goyal in his court statement has opined that injury of injured was neither grievous nor dangerous to life. Hence the present appeal.9. I have heard learned counsel for the appellant and the learned Public Prosecutor and gone through the judgment under appeal. I have also scrutinised and evaluated the evidence on record.10. From the evidence on record it appears that eye witnesses of the incident, namely PW2 Jandel Singh, PW. 3 Raj Bahadur, brother of injured, PW 4 Chitariya, PW 6 Dau Dayal, PW 7 Ajab Singh and PW 10 Badri whose attention was attracted by gun shot and screams of injured and who reached at the place of incident and saw the accused with a gun in his hand and the injured bleeding from his wound, according to their police statements, have not supported the prosecution case and all of them have been declared hostile.11. Out of 17 witnesses examined on behalf of prosecution, 6 witnesses who alleged to witness the incident have not supported the prosecution case and have been declared hostile. Out of 17 witnesses examined on behalf of prosecution, 6 witnesses who alleged to witness the incident have not supported the prosecution case and have been declared hostile. Now the question which emerges for consideration is, whether or not the conviction of the appellant can be sustained on the basis of remaining prosecution evidence including the medical evidence.12. To deal with the above question, it would be appropriate to refer to the statement of injured Munshi Lal. PW 1 Munshi Lai injured has stated in his examination in chief that while he was at the distance of four fields from his village, accused Vijay Singh appeared from the field at his back. He was armed with a gun. Accused then fired gun shot on his back from a distance of about 4-5 yards, the pallets of which were present inside his body. When he turned and saw at his back, the accused ran away along with his gun. The witness further stated that accused was residing in his house and he used to commit thefts and when he came to know of this fact, he dislodged the accused from his house and for this reason the accused was having enimocity with him. In cross examination, the injured has stated that the pallets hit on one place and the accused had fired gun shot from back side.13. From the statement of injured it is evident that appellant was enimical with the injured for the simple reason that the injured having come to know of the appellant's habit of committing thefts, had ousted the appellant from his house. It is true that injury on the person of injured, as per the opinion of doctor, was not dangerous to life, but at the same time it also stands established that injured sustained gun shot injury of the nature already referred above.14. The statement of injured coupled with the statements of PW 9 Dr. V.K. Agrawal and PW 11 Dr. R.C. Goyal, if read together, it appears to me that their statements inspire confidence and I see no reason to disbelieve them. From the testimony of these three witnesses it can safely be concluded that accused appellant fired his 12 bore gun at the injured from behind and caused gun shot injury on infrascapular region of injured, though the injury was neither grevious nor dangerous to life.15. From the testimony of these three witnesses it can safely be concluded that accused appellant fired his 12 bore gun at the injured from behind and caused gun shot injury on infrascapular region of injured, though the injury was neither grevious nor dangerous to life.15. Having established that it was appellant who fired gun shot and caused injury to the injured, the question now emerges for consideration is as to what offence is made out against the appellant.16. For application of section 307 IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. A person who does an act with such intention or knowledge and under such circumstances that, if he by that act caused,death, he would be guilty of murder, is liable to punishment under section 301 IPC. The nature of injury may afford assistance in arriving at a conclusion whether accused had the intention of causing the death of victim. If surrounding circumstances make no contribution to the proof of intention or knowledge, it can be inferred only from the nature of the act itself. In such a case the accused must be presumed to intend only the natural consequence of the act. I am fortified in my view by a judgment of the Apex Court in State of Maharashtra v. Balram Bama Patif ( AIR 1983 SC 305 ) , wherein their Lordships have observed: ".... The section makes a distinction between an act of the accused and its result, if any, such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof'. 17. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof'. 17. If the facts and circumstances of the present case, the evidence and material on record are judged in the light of above settled legal proposition, the answer to the question is in negative, inasmuch as neither the evidence of injured nor the nature of injuries shows the intention or knowledge of the appellant to cause the death. PW 1 Munshi Lal injured has specifically stated that only the God knows as to what was the intention of the appellant in opening gun fire at him. It would be appropriate to refer to the relevant portion of his statement, viz., "NEEYAT GOLI MARNE KI ISKI KYA THI, YAH TO BHAGWAN HEE JANTA HOGA." It is also clear that the appellant fired only once and that too from behind the injured and inflicted injury on non vital part of the body. At the time of incident, none was present on the spot. No evidence has been produced on behalf of the prosecution to establish that the appellant had any intention to cause death of the victim by firing gun shot at him. The fact that appellant fired once from back of the injured and ran away from the scene of occurrence and did not repeat the shot is sufficient to prove that the intention of the appellant was only to cause injury. Therefore, in my considered view the offence committed by the appellant does not travel beyond section 324 IPC and not under Section 307 IPC. As such the conviction of the appellant deserves to be altered from section 307 IPC to that under section 324 IPC and in doing so, I find support from the following decisions of the Apex Court and this Court.18. In Ramesh v. State of U.P., ( AIR 1992 SC 664 ) , the accused was convicted for offence under section 307 IPC. On an appeal against conviction, their Lordships of the Supreme Court held that in the peculiar circumstances of the case, it being a case of single injury in the back of neck the conviction can be altered to be under section 324 IPC.19. In Balwant Singh v. State, (1998 Crl. On an appeal against conviction, their Lordships of the Supreme Court held that in the peculiar circumstances of the case, it being a case of single injury in the back of neck the conviction can be altered to be under section 324 IPC.19. In Balwant Singh v. State, (1998 Crl. L.J. 2753) , their Lordships of the Supreme Court observed as under: "It is settled position of law which has been crystallized by a number of judgments of the Supreme Court that in a case of section 307 when injuries have been caused, the intention should be gathered from the nature of the injuries which have been caused. In the instant case only one injury, i.e., 1/4" x 1/2" has been caused. If the accused had any intention of causing death perhaps they could have early caused death in the facts and circumstances of this case. In the facts and circumstances of this case either from the statements of the witnesses or from the injury it is difficult to bring this case within the ambit of section 307, IPC against the appellants. In this view of the matter conviction of the appellants under Section 307/34 is unsustainable and they are accordingly acquitted as far as their conviction under Section 307, IPC is concerned." 20 In Milkhi Ram v. State of Rajasthan, (1999 Cr.L.R. (Rajasthan) 718 , this court while dealing with identical facts and circumstances, held as under: ".... Since it is proved beyond doubt that the accused-appellant caused injury by gun-shot to the person of Kashmiri Lal which was not sufficient in ordinary course of nature to cause his death, the offence does of travel beyond Section 324 IPC. Consequently the conviction of the appellant should be altered from Section 307 IPC to Section 324 IPC." 21. Coming to the question of sentence, it appears from the record that the appellant has already undergone sentence for a period of 2 years and 5 months. Therefore, it would be just and proper and in the interest of justice to sentence the appellant to the term already undergone by him.22. In the result, this appeal is partly allowed. The conviction of the appellant under Section 307 IPC is set aside and he is acquitted of the charge under section 307 IPC. Instead, the appellant is convicted under Section 324 IPC and is sentenced to the period already undergone by him. In the result, this appeal is partly allowed. The conviction of the appellant under Section 307 IPC is set aside and he is acquitted of the charge under section 307 IPC. Instead, the appellant is convicted under Section 324 IPC and is sentenced to the period already undergone by him. The appellant is in jail and he be released forthwith, if not required in any other case.Appeal Partly Allowed - Conviction and Sentence reduced as above. *******