Judgement Both Criminal Appeals have been directed against the judgment and order dated 02.06.1989 passed by Shri I. P. Singh, the then Sessions Judge, Nainital in S.T. No. 135/1988 State v. Ram Ratan and others, whereby the appellant Ram Ratan was convicted and sentenced to undergo R.I. for two years and four years under sections 452, I.P.C. and 307, I.P.C. respectively. Both Ram Avtar and Bankey Lal were convicted and sentenced to undergo R.I. for two years and three years each under section 452, IPC and section 307/34 IPC respectively. Both the sentences of all the appellants would run concurrently. 2. The facts, in nutshell, are that on 01.10.1987 at 9:10 p.m. an FIR Ex.Ka.4 was lodged by injured Girwar Singh PW4 alleging therein that at about 8:35p.m. on the aforesaid day he was sitting on a cot inside his 'Baithak'. There were two leaves of the door of that 'Baithak', out of which, one of the leaves was open and other leaf of the door was bolted from inside the house. There was an electric bulb inside the house as well as outside the house. One Babu Ram was sitting on a chair towards the right side of Girwar Singh PW4. Ram Sahai Singh PW5, brother-in-law of Girwar Singh was sitting on the other cot. It was further alleged that 4-5 persons standing across the road were talking with each other. In the meantime, one person came at the door of said 'Baithak' and enquired whether the house belonged to Girwar Singh PW4. On this, Girwar Singh PW4 replied in affirmative and asked him to come inside the 'Baithak'. When the said person entered into the 'Baithak' Girwar Singh PW4 asked him about the purpose of his visit and from where he came to his house. The said person told that he resided under the 'Pakhad' tree situated in the vicinity of the police station and he came there to handover a piece of paper. The said paper was handed over to him. When Girwar Singh PW4 tried to take his spectacles kept on his right side, the said person all of a sudden ran outside the 'Baithak' and in the meanwhile appellant Ram Ratan entered into the said 'Baithak', whereas Ram Avtar and Bankey Lal remained standing near the door. The said paper was handed over to him. When Girwar Singh PW4 tried to take his spectacles kept on his right side, the said person all of a sudden ran outside the 'Baithak' and in the meanwhile appellant Ram Ratan entered into the said 'Baithak', whereas Ram Avtar and Bankey Lal remained standing near the door. Ram Ratan was having a double-barrel gun in his hand, whereas Ram Avtar and Bankey Lal were having 'lathis' in their hands. Ram Avtar exhorted Ram Ratan to kill Girwar Singh PW4. On this, Ram Ratan fired upon Girwar Singh PW4 which hit on the right knee as well as on his finger. Thereafter, appellant. Ram Ratan stated that the job had been completed and asked his companion to run away from the spot. On this, all appellants-accused ran away from the place of incident, The incident was witnessed by Ram Sahai Singh PW5-brother-in-law of the injured and Babu Ram. Immediately after the incident Jagpal and Harbhajan saw the appellants running out of the "Baithak'. Thereafter. Beni Singh PW3 scribed the report on the dictation of Girwar Singh PW4 and lodged it in the police station. The injured was sent to the hospital for medical treatment and his medical examination was conducted on 01.10.1987 at about 9:40PM. On the basis of written report, a Chick F.I.R was prepared and necessary entry was made in the general diary. The Investigating Officer started the investigation and recorded the statements of the witnesses. After completing the investigation, the Investigating Officer submitted the charge-sheet before the court. 3. After submission of charge-sheet the appellants-accused were committed to the Court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as ten witnesses. Dr. H. S. Jangpangi PW1 and Dr. B. K. Saxena PW2 are the medical officers who proved the injury reports of the injured. Beni Singh PW3 scribed the report on the dictation of the injured. Girwar Singh PW4 is the injured witness in this case. Ram Sahai Singh PW5, who is the brother-in-law of the injured, is the eye-witness of the occurrence. Dharam Singh PW6 is the person who allegedly saw the appellants and one other running out of the 'Baithak'. Beni Singh PW3 scribed the report on the dictation of the injured. Girwar Singh PW4 is the injured witness in this case. Ram Sahai Singh PW5, who is the brother-in-law of the injured, is the eye-witness of the occurrence. Dharam Singh PW6 is the person who allegedly saw the appellants and one other running out of the 'Baithak'. Ali Hussain PW7 is the witness who heard noise of gun-shot and immediately thereafter, he also saw the accused persons running from the spot. H.C.Hira Singh PW8 has taken into the possession of piece of paper from the injured. Pooran Singh PW9 is the formal witness of the police. S.I. Om Prakash PW10 is the Investigating Officer of this case and after completing the investigation, he submitted the charge-sheet. The appellants-accused did not adduce any evidence in their defence. 5. The accused persons were examined u/S. 313, Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. 6. The learned trial court on appreciation of the evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. I have heard Mr. S. K. Agarwal, learned senior counsel for the appellants and Mr. Amit Bhatt, learned Addl. G.A. for the respondent-State. Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that injured Girwar Singh PW4 has sustained injuries on the date and time of the incident as alleged by the prosecution. Dr. H. S. Jangpangi PW1 medically examined the injured on 01.10.1987 at 9:40 p.m. and found following injuries on the person of the injured :- (i) Multiple lacerated wound ranging in size about 1cm x 0.2 cm depth not proved present on dorsum of right hand involving dorsum of middle ring and little finger. Bleeding present. No blackening and multiple scanning seen. (ii) Multiple lacerated wound ranging in size 1cm x 0.5cm to 0.5 cm x 0.25cm into depth not exposed on the medial side of lower part of right thigh. Fresh bleeding present and scorching present. In the opinion of Medical Officer, the injuries were caused by gunshot and the duration of injuries was fresh. The Medical Officer has stated that the injuries could have been caused at the time and date of the incident. The prosecution has also adduced the evidence of Dr. Fresh bleeding present and scorching present. In the opinion of Medical Officer, the injuries were caused by gunshot and the duration of injuries was fresh. The Medical Officer has stated that the injuries could have been caused at the time and date of the incident. The prosecution has also adduced the evidence of Dr. B. K. Saxena, Radiologist, who proved the X-ray report of the injured. It was disclosed in the X-ray examination that two radio opaque shadows measuring 0.5cm x 0.4 cm suggestive of pellets were seen in the right hand and multiple radio opaque shadows of metallic density measuring 0.5cmx 0.4cm suggestive of pellets were seen in the right thigh. Based on the aforesaid radiological report, Dr. H. S. Jangpangi PW1 prepared his supplementary report. In his opinion injury No. 1 was grievous while injury No.2 was simple. 9. The prosecution has also adduced the oral evidence with regard to the date and time of the incident. There is no challenge about the date and time of the incident. Thus, it is fully established that the injured has sustained injuries on 01.10.1987 at about 8:30 pm. 10. Now, I have to consider whether the appellants-accused were responsible for causing injuries to the injured or not. The case rests upon the direct evidence. The prosecution in support of its case examined the injured eye-witness Girwar Singh PW4, who has stated in his evidence that on 01.10.1987 at about 8:35 p.m. he was sitting on a cot inside his 'Baithak'. There were two leaves of the door of that 'Baithak', out of which, one of the leaves was open and other leaf of the door was bolted from inside the house. There was an electric bulb inside the house as well as outside the house. He further stated in his evidence that one Babu Ram was sitting on a chair towards his right side. His brother-in-law Ram Sahai Singh PW5 was sitting on the other cot which was situated towards the North side. He further stated in his evidence that 4-5 persons standing across the road from his house were talking with each other. In the meantime, one person came at the door of his 'Baithak' and enquired whether the house belonged to Girwar Singh PW4. On this, he replied in affirmative and asked him to come inside the 'Baithak'. He further stated in his evidence that 4-5 persons standing across the road from his house were talking with each other. In the meantime, one person came at the door of his 'Baithak' and enquired whether the house belonged to Girwar Singh PW4. On this, he replied in affirmative and asked him to come inside the 'Baithak'. When the said person entered into the 'Baithak' Girwar Singh PW4 asked him about the purpose of his visit and from where he came to his house. The said person told that he resided under the 'Pakhad' tree situated in the vicinity of the police station and he came there to handover a piece of paper. The said paper was handed over to him. When Girwar Singh PW4 tried to take his spectacles kept on his right side, the said person all of a sudden ran outside the 'Baithak' and in the meanwhile appellant Ram Ratan entered into the said 'Baithak', whereas appellants Ram Avtar and Bankey Lal remained standing near the door. Ram Ratan was having a double-barrel gun in his hand, whereas Ram Avtar and Bankey Lal were having 'lathis' in their hands. Ram Avtar exhorted Ram Ratan to kill Girwar Singh PW4. On this, Ram Ratan fired upon Girwar Singh PW4 and thereafter, they fled away from there. Girwar Singh PW4 had also stated in his evidence that the incident was also witnessed by Ram Sahai Singh PW5, Babu Ram and Dharam Singh PW4. The prosecution has also adduced the evidence of Ram Sahai Singh PW5, brother-in-law of the injured, who was the eye-witness of the incident. Ram Sahai Singh PW5 has corroborated the evidence of Girwar Singh PW4 on material points. He has given the vivid details in his evidence. Both these eye-witnesses have fully supported the prosecution version. They were cross-examined at length, but nothing could be elicited in their cross examination to discredit their testimony. Both the eye-witnesses remained consistent in their cross-examination with regard to the factum of incident. Moreover, the presence of the injured eye-witness Girwar Singh PW4 cannot be doubted. He has sustained injury in the same incident and the prosecution has proved the same by adducing the medical evidence. The injured witness stands on a higher pedestal than ordinary eye-witness. It is also well settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. He has sustained injury in the same incident and the prosecution has proved the same by adducing the medical evidence. The injured witness stands on a higher pedestal than ordinary eye-witness. It is also well settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured witness cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witnesses were present during the occurrence. {Vide Narendra Nath Khaware v. Parasnath Khaware and others, 2003 SCC (Crl) 1144 : (2003 Cri LJ 1340) and State of U.P. v. Kishan Chand and others 2004 SCC (Cri) 2013; (2004 Cri LJ 4878) 11. The prosecution has also adduced the evidence of Dharam Singh PW6, who has stated in his evidence that in the evening of 01.10.1987 when he along with one Jagdish was going towards the 'Ram-Leela' they heard the noise of gunshot. On this, they went to the house of Girwar Singh PW4 and found four persons running from the spot. He further stated that he identified them as Ram Ratan, Ram Avtar and Bankey Lal, but he could not identify the fourth person. Thus the prosecution has led the evidence that immediately after the incident the appellants were seen running from the place of incident. The prosecution has also adduced the evidence of Ali Hussain PW7 who has stated in his evidence that he heard the noise of gun-shot and immediately thereafter he saw the appellants running from the spot. He accompanied the injured to the police station for lodging the report. He further stated in his evidence that a piece of paper, which was allegedly given to the injured by one anonymous person in his "Baithak', was handed over to the police by the injured. After examining the entire evidence, the trial court found the presence of the witnesses at the spot and also came into conclusion that the evidence of the prosecution is credible and cogent and the trial court did not find any infirmity in the evidence adduced by the prosecution and the trial court relying upon the evidence convicted the appellants. After examining the entire evidence, the trial court found the presence of the witnesses at the spot and also came into conclusion that the evidence of the prosecution is credible and cogent and the trial court did not find any infirmity in the evidence adduced by the prosecution and the trial court relying upon the evidence convicted the appellants. I have also gone through the entire evidence with the help of the learned counsel for the parties and I do not find any infirmity in the deposition of the prosecution evidence. I am completely in agreement with the appreciation of the trial court. 12. Learned senior counsel for the appellants contended that the prosecution has not produced the independent witnesses to corroborate the factum of incident. It was further contended that the alleged eye-witness Ram Sahai Singh PW5 is the brother-in-law of the injured Girwar Singh PW4. It was further contended that Ram Sahai Singh PW5, who is said to be eye-witness of the incident, is interested witness as he is related to the injured. It was further contended that one Babu Ram was also present in the 'Baithak' and he should have been examined. Learned Addl. G.A. refuted the contention. On due consideration of the submissions of the learned counsel for the parties, I am of the view that although, it is true that Ram Sahai Singh PW5 is related to the injured, but the evidence of injured eye-witness and other witnesses cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. they are related to each other. Just because the witnesses are related to the injured would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the facts and circumstances of the present case, he is but natural witness of the incident. I have no reason to disbelieve his testimony. Similarly, being relative, it would be his endeavour to see that the real culprits are punished and normally he would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished. In the case of State of Punjab v. Karnail Singh, reported in 2004 SCC (Cri) 135 : (2003 Cri LJ 3892) the Hon'ble Apex Court has held as under : "8. In the case of State of Punjab v. Karnail Singh, reported in 2004 SCC (Cri) 135 : (2003 Cri LJ 3892) the Hon'ble Apex Court has held as under : "8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab, reported in AIR 1953 SC 364 : (1953 Cri LJ 1465) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed (AIR p. 366): 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 : (1952 Cri LJ 547) (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel." 9. Again in Masalti v. State of U.P., AIR 1965 SC 202 : (1965 (1) Cri LJ 226) this Court observed;- "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 13. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 13. So far as the contention that the evidence of one Babu Ram was not adduced although he was present in the "Baithak', it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid to come to the court. The prosecution has adduced the evidence of Dharam Singh PW6, who saw the accused persons running out of the 'Baithak'. The evidence of prosecution witnesses is consistent and nothing had been elicited from their cross-examination which may render their evidence unreliable. The evidence of the prosecution witnesses is credible and cogent. Therefore, I do not find any force in the contentions advanced by the learned senior counsel for the appellants. 14. Learned senior counsel for the appellants further contended that the participation of Ram Avtar and Bankey Lal in the commission of offence is highly improbable in this case. It was further contended that there was an enmity between Girwar Singh PW4 and the appellants. Girwar Singh PW4 has admitted in the cross-examination that he had a civil litigation with all three appellants with respect to the piece of land. Appellants Ram Avtar and Bankey Lal, who were having 'lathis' in their hands did not enter into the house/Baithak and they remained standing outside the 'Baithak' and, as such, they would not have participated in the commission of offence because there was no injury of 'lathi' blow. Appellants Ram Avtar and Bankey Lal, who were having 'lathis' in their hands did not enter into the house/Baithak and they remained standing outside the 'Baithak' and, as such, they would not have participated in the commission of offence because there was no injury of 'lathi' blow. Learned Addl. G.A. for the State refuted the contention. The civil litigation pending between the parties would not render the evidence of the prosecution unreliable. Learned Addl. G.A. relied upon the judgment of the Hon'ble Supreme Court in Vijay Shankar Shinde and others v. State of Maharashtra, 2008(1) SCC (Cri) 535 : (2008 Cri LJ 1632) in which there was family feud between the family of the accused and the family of the complainant, who were close relations. Suits were pending between them. The accused persons assaulted one of the injured persons and ran away from the spot. The Hon'ble Supreme Court has held that the trial court was not justified in holding that because PW11 was an injured witness he may have reason to falsely implicate the accused. It was further observed by the Hon'ble Supreme Court that the evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. In the case in hand, appellants Ram Avtar and Bankey Lal came to the house of injured and remained standing outside the house. Ram Avtar exhorted Ram Ratan to fire upon Girwar Singh PW4 (injured) and on his exhortation Ram Ratan fired upon him with a double barrel gun which he was having in his hand. The evidence of injured Girwar Singh PW4 and Ram Sahai Singh PW5 is consistent on that point and they were cross-examined in length but nothing could be elicited about the presence of appellants Ram Avtar and Bankey Lal at the spot. It is established from the evidence of the prosecution that the appellants came to the house together; and Ram Avtar and Bankey Lal armed with 'lathis' and Ram Ratan armed with a double barrel gun came at the spot. It is established from the evidence of the prosecution that the appellants came to the house together; and Ram Avtar and Bankey Lal armed with 'lathis' and Ram Ratan armed with a double barrel gun came at the spot. Thus, the intention of the appellants is clear that they came there in order to cause injury to the injured. Moreover, the fact of exhortation of Ram Avtar to fire upon the injured is clear about the intention of Ram Avtar. Thus, I do not find any force in the contention of the learned senior counsel for the appellants. 15. It was further contended that appellants Ram Avtar and Bankey Lal have also been convicted under Section 452, IPC, however, they did not enter into the 'Baithak'. Learned senior counsel for the appellants has relied upon the evidence of eye-witnesses of the incident who have categorically stated that Ram Avtar and Bankey Lal remained standing outside the house. Girwar Singh PW4, who is the injured in the incident, has stated in his cross-examination that appellant Ram Ratan entered into the house and other appellants i.e. Ram Avtar and Bankey Lal were standing near the door of the 'Baithak'. Ram Sahai Singh PW5 has also stated in his cross examination that Ram Ratan entered into the 'Baithak' and rest of the appellants Ram Avtar and Bankey Lal remained standing near the door outside the room. Thus, it is apparent from the evidence of the eye-witnesses that Ram Avtar and Bankey Lal did not enter into the 'Baithak' of the injured. The offence under Section 452 is only committed to the person who commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint. Section 442 IPC defines the word 'house-trespass' as "whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property". Thus, it is apparent from the above definition that the person must have been entered into the house. Appellants Ram Avtar and Bankey Lal did not enter into the room or 'Baithak'. Thus, it is apparent from the above definition that the person must have been entered into the house. Appellants Ram Avtar and Bankey Lal did not enter into the room or 'Baithak'. As such, it cannot be said that Ram Avtar and Bankey Lal have committed the offence of "House-trespass". I find force in the contention of the learned senior counsel for the appellants and I am of the view that appellants Ram Avtar and Bankey Lal are liable to be acquitted from the charge under Section 452, IPC. So far as Ram Ratan is concerned, I am of the view that the trial court has rightly convicted him under section 452, IPC because it has come in the evidence of the prosecution that he entered into the 'Baithak'. 16. Learned senior counsel for the appellants contended that appellant Ram Ratan, who was armed with a double barrel gun had been convicted under Section 307, IPC and co-accused Ram Avtar and Bankey Lal, who were having 'lathis' in their hands had also been convicted under Section 307, IPC with the aid of Section 34, IPC. It was contended that the appellants had no intention to kill Girwar Singh PW4. If the appellant Ram Ratan had an intention to kill the injured he would have fired upon the vital part of the body of the injured or he could have repeated his attempts. But after causing only one assault on the person of the injured, the appellants fled away from the place of occurrence. As such, appellant Ram Ratan should not have been convicted under section 307, IPC. Appellants Ram Avtar and Bankey Lal were having 'lathis' in their hands and if they had an intention to kill the injured they would have entered into the house/baithak and could have inflicted grievous injuries on the person of injured. As such, their conviction under section 307, IPC with the aid of section 34, IPC will not be justified in the facts and circumstances of the case. Learned Addl. G.A. has supported the findings of the trial court. To constitute an offence under section 307, IPC two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. Learned Addl. G.A. has supported the findings of the trial court. To constitute an offence under section 307, IPC two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of section 307, IPC, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. To attract the provisions of section 34, IPC two postulates are indispensable. (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. To attract the applicability of section 34, IPC the prosecution is under obligation to establish that there existed a common intention which requires a prearranged plan, because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention. There is no gainsaying that a common intention presupposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. Such preconcert or preplanning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. In the case in hand, the prosecution has led the evidence that appellant Ram Ratan entered into the room and fired upon the injured with a double barrel gun which he was having in his hand and immediately thereafter he fled away from the place of incident. He did not aim on the vital part of the body of the injured. Appellant Ram Ratan was carrying a double barrel gun having a capacity of two cartridges simultaneously one after another. But, he used only one gun-shot. Thus, it is apparent that he had no intention to cause the death of the injured. The injured has sustained injuries on his knee and little finger which is not a vital part of the body. If he had an intention to commit the murder he would have used second cartridge also. Considering the above facts, I am of the view that appellant Ram Ratan had never been an intention to kill the injured. The appellants had only an intention to cause the injury to Girwar Singh injured. Keeping in view of the facts that the double barrel gun was used in causing injury to the injured and there was a fracture on the lady-finger of the injured, I am of the view that the offence committed by the appellant Ram Ratan falls under section 326, IPC and the offence of other appellants falls under Section 326/34, IPC. Ram Avtar and Bankey Lal armed with 'lathis' came at the spot alongwith Ram Ratan with a common intention to cause injury to Girwar Singh PW4. As I have already held that the offence falls under section 326, IPC, hence I am of the view that Ram Avtar and Bankey Lal are also liable to be convicted under section 326, IPC with the aid of section 34, IPC. As I have already held that the offence falls under section 326, IPC, hence I am of the view that Ram Avtar and Bankey Lal are also liable to be convicted under section 326, IPC with the aid of section 34, IPC. It would be just and proper to award the sentence of fifteen (15) months R.I. under section 326, IPC and 326/34, IPC to each appellant. 17. Learned counsel for the appellants further contended that the sentence awarded by the trial court under Section 452, IPC did not commensurate with the offence which has been charged against the appellant Ram Ratan. Considering the totality of the facts and circumstances of the case, it would be just and proper to award the sentence of one year under section 452, IPC. 18. Considering the above factual backgrounds the conviction of appellant Ram Ratan under section 452, IPC is liable to be confirmed and his sentence is liable to be reduced to one year's R.I. from two years under section 452, IPC. Appellants Ram Avtar and Bankey Lal are liable to be acquitted under section 452, IPC. Appellant Ram Ratan is liable to be convicted under section 326, IPC instead of section 307, IPC. So far as the appellants Ram Avtar and Bankey Lal are concerned, they are liable to be convicted under section 326/34, IPC instead of section 307/34, IPC. 19. Both the appeals are partly allowed. Consequently, the conviction of appellant Ram Ratan under section 452, IPC is confirmed and his sentence is reduced to one year's R.I. Appellant Ram Ratan is also convicted under section 326, IPC instead of section 307 IPC and he is sentenced to undergo R.I. for a period of fifteen (15) months under section 326, IPC. Appellants Ram Avtar and Bankey Lal are acquitted from the charge under section 452, IPC. Appellants Ram Avtar and Bankey Lal are convicted under section 326/34 IPC instead of section 307/34 IPC and they shall undergo R.I. for fifteen months. Both sentences shall run concurrently. The impugned judgment and order passed by the trial court is modified accordingly. 20. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of four months from today. Appeals partly allowed.