JUDGMENT 1. - Since the controversy involved in both the appeals, arise out of the same FIR number and same judgment, hence, the same are being decided by this common Judgment. 2. By filing these two separate appeals under Section 374 Cr.P.C., the appellants have challenged the Judgment of conviction and sentence dated 18.3.2006 passed by learned Additional Session Judge (Fast Track) No. 2, Bundi (for learned `Trial Court') in Sessions Case No. 11/2005, whereby it convicted all these accused appellants as under: 307/34 IPC : 10 years simple imprisonment and a fine of Rs. 5,000/ In default of payment of fine, each accused appellants shall further undergo six months' simple imprisonment. 353 IPC : Six month simple imprisonment and a fine of Rs. 300/-. In default of payment of fine, each accused appellants shall further undergo one month simple imprisonment. 3/25 Arms Act : Six months simple imprisonment and a fine of Rs. 300/-. In default of payment of fine, each accused appellants shall further undergo one month simple imprisonment. Brief facts of the case are that Shri Rishi Raj, SHO Police Station Indergarh had gone to Village Babai on 28.11.2004, for the investigation of Crime No. 103/2003, and 127/2004, under section 379 IPC. An informant informed him that three criminal type of persons are sitting near Belanganj Mod, in a blue colour Maruti car. They are possessing arms also. After receiving this information, he went to Belanganj Mod found a blue colour Maruti car No. RJ-17C-1125 standing there. The police jeep was stopped near it. The persons sitting on the back seat, fired and started the Maruti car and went towards Khejdi in District Tonk. Police party chased them. Near village Mui, two accused sitting on the back seat fired them after aiming. The accused persons were continuously firing on police party. The police persons lay down on the land and arrested the accused persons alongwith their pistol and cartridges. On interrogation, first accused told his name to be Devendra Singh @ Bhanu Pratap Singh, second Bhupendra Singh and third Shakti Singh. They were not having any licence for the illegal weapons. After making the recovery of illegal weapons and arresting the accused seizing the car, the police party came to be the Police Station. 3. The police on the basis of this report, registered an FIR No. 217/2004. for the offences u/Ss. They were not having any licence for the illegal weapons. After making the recovery of illegal weapons and arresting the accused seizing the car, the police party came to be the Police Station. 3. The police on the basis of this report, registered an FIR No. 217/2004. for the offences u/Ss. 307, 353/34 IPC and 3/25 of the Arms Act. 4. The police after investigation submitted challan against the accused persons for the aforesaid offences. 5. The learned trial court framed the charges against the accused persons. They pleaded not guilty and claimed trial in the matter. 6. The prosecution in support of its case produced as many as 17 witnesses and certain documents were exhibited. Thereafter, the statements of the accused appellants u/S 313 Cr.P.C. were recorded. 7. The learned trial Court after hearing both the parties convicted and sentenced the accused appellants vide Judgment 18.3.2006 as mentioned above. The accused appellants being aggrieved with the impugned Judgment of conviction and sentence has preferred two different appeals. 8. Learned counsel for the accused appellants during the course of argument submitted that the learned trial Court has failed to consider the following points which were raised when the aforesaid Judgment was passed: 1. Admission made before the District Magistrate is not valid under the law because this admission has been given to Mr. Mahendra Parakh, Addl. District Magistrate but the powers of District Magistrate cannot be transferred. 2. All the witnesses are of police personnels. Neither any independent witnesses have been included in the list of witnesses nor the Investigating Officer has tried to include the same. 3. Recovery has been made from the open place and all the proceeding regarding recovery have been made in the police station. 4. When proclaimed offender is arrested then information to this is given to the higher authorities but in this matter no information is given to the higher authorities. 5. The Receipt of the FSL has been submitted but no result of the same has been received. It has not been stated that by which such fire-arm has been made, as there is lot of contradiction in it. 6. The vacant covers of kartoos have not been seized. 9. 5. The Receipt of the FSL has been submitted but no result of the same has been received. It has not been stated that by which such fire-arm has been made, as there is lot of contradiction in it. 6. The vacant covers of kartoos have not been seized. 9. He further submits that neither trustworthy and positive evidence has come on record against the accused appellants for the alleged offences nor any police personnel sustained any injuries and even single person has not suffered any injury. Learned counsel further submits that all the witnesses are police personnels and their evidence cannot be treated as trust-worthy. 10. 9. He further submits that neither trustworthy and positive evidence has come on record against the accused appellants for the alleged offences nor any police personnel sustained any injuries and even single person has not suffered any injury. Learned counsel further submits that all the witnesses are police personnels and their evidence cannot be treated as trust-worthy. 10. He also submits that before this Court that the learned trial Court while passing the impugned judgment, has failed to consider statements of following witnesses, which runs as under: ih0 MCY;q0 1 j?kqohjflag us viuh ftjg esa ;g dgk fd ;g ckr lgh gS fd esjs lkeus blh eqyfte ls dksbZ pht cjken ugha gqbZA eky ysus ds ckn eSaus eky[kkuk esa eky dks j[kus ds ckn eky izkIr djus ds gLrk{kj ugha fd;sA ;g ckr lgh gS fd eSaus eky[kkuk jftLVkj esa Hkh gLrk{kjk ugha fd;sA vkxs ftjg esa ;g Hkh dgk gS fd vkfVZdy izzn'kZ ih01 eky[kkuk jftLVkj esa ,Dl LFkku ij tks lhy yxh gqbZ gS og lhy og ugha gS ftlls eky tIr gqvk cfYd Fkkus dh lhy gSA ih0MCY;q03 gfjcYyHk us viuh ftjg esa ;g dgk gS fd ekSds ij tks xksfy;kWa pyh muds pys gq, dkjrwl ugha feysA vkxs ftjg esa ;g Hkh dgk gS fd fiLrkSy fdl uEcj dk Fkk ,oa fdrus ikoj dk Fkk ;g mls irk ughaaA eqyfteku dks ekSds ls idM+us gh rqjUr ge Fkkus ds fy;s jokuk gks x;s o geus fdlh izdkj ds ljdkjh ,oa izfr"Br O;fDr dks ml ekSds ij ugha cqyk;kA ih0MCY;q04 guqeku u viuh ftjg esa ;g dgk gS fd gekus tkIrs esa ls fdlh us dkj ds Vk;j ij Qk;j ugha fd;kA ih0MCY;q05 uUnfd'kksj us viuh ftjg esa dgk gS fd tks Qk;j gq,] mudh pksV fdlh ds ugha yxhA ih0MCY;q06 izgykflag us viuh ftjg esa dgk gS fd gekjs fdlh Hkh iqfyl okys dks pksV ugha vkbZA ekSds ij dksbZ pys gq, dkjrwl gekjs dks ugha feysA ;g ckr lgh gS fd gekjh eqyfte ls dksbZ ckr ugha gqbZA ih-MCY;q09 xqekuflag us viuh ftjg esa dgk gS fd tgkWa&tgkWa fiLVy pyh ogkWa [kkyh dkjrwl ugha feykA bl xokg us vkxs ;g dgk gS fd lHkh xokg iqfyl ds gh FksA ih0MCY;q013 _f"kjktflag us viuh ftjg esa dgk gS fd ;g ckr lgh gS fd bl eqdnes esa ckgj dk dksbZ Lora= xokg miyC/k ugha gSA vkxs ;g Hkh dgk gS fd ;g ckr lgh gS fd Qk;j dh esjs ,oa tkIrs ds fdlh lnL; ds dksbZ pksVsa ugha vkbZA ;g Hkh dgk gS fd ;g ckr lgh gS fd dksbZ [kkyh dkjrwl [ksr ls tIr ugha gqvkA ;g ckr lgh gS fd ftl txg ls dkjrwl Qk;j fd;s x, Fks muds [kks[ks tIr ugha gq,A ;g ckr lgh gS fd eSaus dksbZ Qk;j ugha fd;kA eSa ugha crk ldrk fd ?kVuk dkSu ls [ksr esa gqbZA ;g ckr lgh gS fd uD'kk ekSdk cukrs le; eSa vkbZ0vks0 ds lkFk ekStwn ugha Fkk D;ksafd esjk mlh jkr dks ,DlhMsaV gks x;k FkkA ih0MCY;q014 gseUr xkSre us viuh ftjg esa dgk gS fd eq>s xkWao esa tks Qk;j gq, Fks muds [kks[kksa dh ryk'k FkhA ysfdu ogkWa dksbZ [kks[ks ugha feysA 11. The accused appellants to support their case produced as many as 4 witnesses : Mh0MCY;q01 uoyfd'kksj vxzoky us dFku fd;k gS fd fnukad 28-11-2004 dks eSa nhid ik"kZd ds ;gkWa x;k FkkA mudk edku 1@175 gkmflax cksMZ dWyksuh esa gSA eq>s ogkWa 'kfDr] Hkkuqizrki] HkwisUnz feysA nhid us eq>ls dgk fd vkt esjs ;gkWa vkBosa dh jlksbZ gS] tks eq>s ckWa/k ij gS vki ogkWa ij vk tkukA mlus eq>ls dgk fd vkt rks eSa fcth jgwaxk vkSj rqe esjs nksLrksa dks x.ks'k ds n'kZu djok ykA x.ks'kth lsij jksM ij gSA ge dkj ls x;s FksA dkj dk uEcj vkj0ts0 17&1125 FkkA ge x.ks'k ds n'kZu djds rhu lk<+s rhu cts vk;s vkSj eqyfteku us eq>s esjs edku ij NksM+ fn;kA eSa o esjh iRuh eq>s ckWa/k ij ikap cts djhc x;s Fks vkSj ogkWa ij [kkuk [kk;kA ogkWa ij irk yxk fd rhu tuksa dks iqfyl eq>s ckWa/k ls igys gh ys x;h FkhA Mh0MCY;q02 pUnzohjflag us dFku fd;k gS fd xzke dq'ryk esa bUnzx><+ tkus okys jksM ds ikl esjk pk; dks gksVy gSA lokbZ ek/kksiqj dh rjQ ls eqyfte dkj ysdj vk;s FksA vdlj ;g yksx vkrs tkrs jgrs Fks blhfy;s budks tkurk gwaA esjs ;gkWa rhuksa O;fDr;ksa us :ddj pk;&uk'rk fd;kA mUgksaus dgk fd eqbZ cka/k ij gekjk Hkkstu gS blfy;s ge eqbZ cka/k dh vksj tk jgs gSaA ekSds ij u rks dksbZ xksyh pyh vkSj u gh dksbZ ?kVuk ?kVh vkSj rhuksa O;fDr eqbZ ckWa/k dh vksj xkM+h esa cSBdj pys x;sA Mh0MCY;q03 usehpUn us dFku fd;k gS fd esjk [ksr csyuxat ds ikl gSA eSa lqcg lkr cts ls lk;a lkr cts rd ogha jgkA csyuxat vkSj mlds vklikl dksbZ xksyh pyh vkSj u gh dksbZ ?kVuk ogkWa ij ?kVhA ogkWa ij dksbZ ,slh ?kVuk Hkh ugha lquhA eSaus ml fnu u rks iqfyl dh thi ns[kh vkSj u gh uhyh dkj ns[kh vkSj u gh dksbZ ?kVuk ns[kh vkSj u gh ?kVuk ds ckjs esa fdlh ls lqukA Mh0MCY;q04 jk/ks';ke us dFku gS fd eSa vius [ksr ls 'kke dks ikap cts xkWao tk jgk FkkA eSaus ,d ek:fr uhys jax dh ns[kh Fkh] ftlesa pkj vkneh cSBs Fks] ;g yksx lokbZ ek/kksiqj dh rjQ ls vk jg Fks ,oa cU/kq dh rjQ tk jg Fks] tgkWa ij ikVhZ FkhA ogkWa ij nl&chl vknfe;ksa dk [kkuk FkkA ogkWa ij iqfyl dh xkM+h ns[kh FkhA ogkWa ij dksbZ fiLrksy ;k xksyh pyus dh vkokt ugha vkbZ u gh pyhA eSaus iqfyl okyksa ds ikl cUnwdsa ns[kh FkhA 12. PW2 Gajanand and PW12 Suraj Mal have not supported the case of the prosecution and have been declared hostile. 13. Lastly he submits that the accused appellants ought to have been convicted for the offence u/S 308 IPC and not under Section 307 IPC. 14. Learned PP submits that the accused appellants have made fire upon the persons with intention to kill them, thus the sentence awarded by the learned trial Court is just and proper and no interference is required to be called for in the aforesaid judgment. 15. I have heard learned for the accused appellants as well as learned P.P. for the State and carefully gone through the entire material made available to me as also Section 308 IPC. Section 308 IPC runs as under : "308. Attempt to commit culpable homicide - Whoever does any act with such intention or knowledge and under such circumstances that if, he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if, hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 16. A bare perusal of the FIR and statements of the prosecution witnesses as also ingredients of section 308 IPC clearly reveal that the intention of the accused appellants was not to commit attempt to murder but also to create terror in the police personnels so that they may not be arrested, therefore the ingredients of section 308 IPC will be applicable in the instant case. In the aforesaid. incident the police personnels also did not sustain any injury on their person. The evidence put forth by the prosecution clearly reveal that the accused persons made fire with intention to put the police personnel in the fear and not with intention to commit murder. The ends of justice would be met if the accused appellants are released on the already undergone period. 17. In view of above, both the appeals are disposed of. The ends of justice would be met if the accused appellants are released on the already undergone period. 17. In view of above, both the appeals are disposed of. The Judgment of conviction and sentence dated 18.3.2006 passed by learned Additional Sessions Judge (Fast Track) No. 2, Bundi in Sessions Case No. 11/2005, is modified to the extent that the accused appellants shall be punished for the offence u/S 308 IPC instead of Section 307 IPC, only for the period already undergone by them, in confinement. The accused appellants shall be released forthwith, if not required in any other case. 18. The impugned Judgment of the trial Judge shall stand modified as indicated above.Appeal Partly Allowed - Conviction & Sentence Modified. *******