JUDGMENT Dev Darshan Sud, J. This appeal has been preferred by the appellant who challenges his conviction under Section 307 of the Indian Penal Code (hereinafter referred to as the `IPC’) on the allegations that on 17.9.2009 he had shot at and seriously injured Ram Lal complainant PW-2. 2. The prosecution case is that complainant Ram Lal was sitting in the shop of one Guddu Ram PW-3 at Kalyarkar, who was known to him. At around 5.30 P.M. his nephew Sanjay Kumar PW-6 also reached there on his motorcycle. At around 6.00 P.M. the accused reached there in his Tata Sumo vehicle, abused Sanjay and asked him to take his motorcycle to one side of the road. The complainant asked the accused not to abuse him on which the appellant took out his revolver and shot at him injuring his left arm, due to which blood started oozing and he became unconscious on the spot. He was rushed to the hospital where his statement was recorded. He was thereafter referred to Rajinder Prashad Government Medical College, Tanda (hereinafter referred to as `RPGMC’). During investigation, the accused surrendered his vehicle No.HP-37-0144 alongwith its documents and keys. The revolver was sent to the Regional Forensic Science Laboratory, which found gun shot fire residues in the barrel. On examination, it was found that the cartridge has in-fact been fired through this revolver. The bullet has been recovered from the body of Ram Lal during surgery. The injury caused was grievous in nature and it shattered the left arm wrist of the complainant. 3. The accused was charged under Sections 307 IPC and 25 of the Arms Act. He pleaded not guilty. The prosecution examined as many as 15 witnesses, whereafter accused was examined under Section 313 Cr.P.C.. He admitted that on 17.9.2009 at around 6.00 P.M. PW-6 Sanjay Kumar reached at the shop of Guddu Ram PW-3 and parked his motorcycle there. He also admitted that Sanjay was sitting on his motorcycle and after sometime complainant Ram Lal came there and was sitting on the bench. He further stated that the bench was in front of the vegetable `Khokha’. He also admitted that he reached there in his Tata Sumo vehicle. 4. On the evidence on record the learned trial Court convicted the appellant-accused. He further stated that the bench was in front of the vegetable `Khokha’. He also admitted that he reached there in his Tata Sumo vehicle. 4. On the evidence on record the learned trial Court convicted the appellant-accused. In order to arrive at its conclusion, the learned Court considered the statement of PW-2 complainant Ram Lal who stated that he was running a shop of welding etc. at Ram Chowk, Palampur. On 17.9.2009 after finishing work at about 5.30 P.M. he reached Kalyarkar at 6.00 P.M. He went to the shop of Guddu Ram, who is his `Kangan Bhai’ (God Brother), his nephew Sanjay PW-6 reached there on a motorcycle and was sitting on it in front of the shop. The accused came there in a Tata Sumo vehicle and started abusing and shouting profanities at him and his nephew. He (complainant) was sitting on a bench outside the shop and accused shot at him from inside the vehicle. The bullet hit him on his left arm, blood started oozing and he became unconscious and regained consciousness in the hospital at Palampur, where his statement Ex.PW-2/A was recorded. After initial treatment, he was referred to RPGMC at Tanda, where he was brought by PW-6 Sanjay and Raju. He then states about handing over the blood stained clothes etc. to .the police. In cross-examination he admits that he has no enmity with the accused and that the altercation between appellant and Sanjay took place for the first time. He denied the fact that he was not unconscious. Distance between Tata Sumo vehicle and the place where he was sitting was at about 2½/3 feet. 5. PW-1 Dr.K.L. Kapoor, who was the Medical Officer, Incharge of Civil Hospital, Palampur, states that he had been posted there since September, 2002. On 17.9.2009 he examined the complainant Ram Lal who was conscious and aware about his surroundings etc. He had .05 cm punctured wound over left forearm dorsal aspect 1.5 inch proximal to wrist joint. He had suffered a gun shot injury which fractured his lower left wrist. Final opinion Ex.PW-1/C was given by him on the basis of the treatment at the RPGMC hospital at Tanda. He states that he informed the police about the incident at around 7.05 P.M. in the evening. 6. He had suffered a gun shot injury which fractured his lower left wrist. Final opinion Ex.PW-1/C was given by him on the basis of the treatment at the RPGMC hospital at Tanda. He states that he informed the police about the incident at around 7.05 P.M. in the evening. 6. PW-3 Guddu Ram corroborates the evidence of the complainant stating that on 17.9.2009, PW-6 Sanjay had reached his shop on a motorcycle and parked it in front of his shop and sat on it. PW-2 Ram Lal complainant also came there and was sitting on a bench outside his shop. At that time, the appellant came there in white coloured Tata Sumo. He told PW-6 Sanjay that he had not parked the motorcycle on the correct side. He (Sanjay) told that this is not the factual situation at which time quarrel ensued. Thereafter he heard sound of gun shot which hit PW-2 complainant Ram Lal. He asked the accused as to from where the shot was fired whereupon the complainant stated that it was fired by the accused Baljeet. Blood was oozing from the arm of the complainant. At that time Raju, who is nephew of Ram Lal, also reached the spot. The complainant had become unconscious. Sanjay PW-6 and Raju immediately took him to the hospital. The wife of the accused also came to the spot and took him to her house. This witness was declared hostile. In cross- examination by the prosecution, he admits that the motorcycle and Tata Sumo were visible from his shop. Baljeet remained inside the vehicle. 7. PW-5 HC Shanti Saroop states that in the year 2009 he was posted in the Police Station at Palampur as Investigating Officer. On 18.9.2009 he was associated in the investigation of the case. The accused was brought to the Police Station with his brother and during Jama Talashi (personal search) a revolver alongwith licence was found in his pocket. An empty cartridge was found in the cylinder of the revolver which was again inserted. The photographs and sketch etc. were prepared. The revolver was sealed in a cloth pulinda and three seals of `M’ impression were put on it. He identified the revolver Ex.P3 which was brought in the Court. An empty cartridge was found in the cylinder of the revolver which was again inserted. The photographs and sketch etc. were prepared. The revolver was sealed in a cloth pulinda and three seals of `M’ impression were put on it. He identified the revolver Ex.P3 which was brought in the Court. He admits that the accused was brought to the Police Station by Shri Onkar Chand and denies that the weapon and the licence were infact produced by this Onkar Chand and that no empty cartridge was found in the cylinder of the revolver or that its presence therein was because of the fact that the police had fired through this weapon. 8. PW-6 Sanjay Kumar corroborates the complainant PW-2 Ram Lal. He states that the accused came there from Palampur side and parked his vehicle infront of motorcycle of this witness. He asked him to take his motorcycle to one side and on being told that it is already on one side the accused started laughing. When he took his vehicle away from the spot, his uncle told him that his motorcycle was already parked on one side on which the accused told him to shut up. When he was taking his motorcycle towards the bonnet of Tata Sumo, he heard gun shot and saw that the right arm wrist of his uncle was fractured. He was told by his uncle that accused had made gun shot on him. He took his uncle on his motorcycle and immediately rushed to the hospital. On his cross-examination he was declared hostile because he was not stating in accordance with whatever he has stated in his statement under Section 161 Cr.P.C. He admits that at the time of incident he and his uncle were also present on the spot. He also admits that at the time when he was asked to take his motorcycle away the complainant and the accused were arguing with each other and at that time, he heard the sound “like a cracker”. 9. PW-14 Dr.Nital Gupta, Medical Officer, was at the relevant time posted in RPGMC, Tanda as Senior Resident in the Department of Orthopedics. He had treated the complainant and prepared the summary. He proved on record the treatment summary Ex.PW-14/A. He says that he has cleaned the wound and removed the pellets from the forearm. There was fracture of radius bone of left forearm. He had treated the complainant and prepared the summary. He proved on record the treatment summary Ex.PW-14/A. He says that he has cleaned the wound and removed the pellets from the forearm. There was fracture of radius bone of left forearm. He identified the pellets Ex.PW- 14/A-1 and Ex.PW-14/A-2 which were removed from the forearm of the complainant. 10. PW-15 Sudhir Kumar states that he was posted in Arms Licence Branch of the Deputy Commissioner’s Office from August, 2008. He proved on record the original prosecution sanction Ex.PW-15/A. This is the entirety of the evidence of the witnesses excluding those of the police officials who were witnesses to the recovery etc. 11. At this juncture, we advert to the reports of the State Forensic Science Laboratory and Regional forensic Science Laboratory, Ex.PX and Ex.PY. The first report Ex.PX states that human blood of group `A’ was found on Ex.1, which was the blood sample of Ram Lal, Ex.2 blood stained soil, Ex.3 bamboo piece, Ex.4a shirt and Ex.4b vest of Ram Lal. Ex.PY tested and examined the revolver which was the weapon of offence. The report states that gun shot fire residues have been detected in the barrel of Ex.E/2a, which was a .22” caliber revolver bearing No.0200059 in which a fired cartridge was present in its chamber. Ex.E/2b, which was a fired cartridge, was examined and on the microscopic examination it was found that this cartridge had been fired through Ex.E/2a. Lead pieces found in Ex.E/1 could have been the bullet pieces of Ex.E/2b and could have been fired through Ex.E/2a. 12. Adverting to the medical evidence, Ex.PW-14/A is the discharged card/treatment summary of the complainant in RPGMC, Tanda and Ex.PW-1/B is the Medico Legal Certificate prepared at the time when the complainant was admitted in hospital at Palampur. It is in the light of this evidence that the appellant challenges the judgment of conviction on a number of grounds. It is urged by learned counsel appearing for the appellant that the prosecution witnesses contradicted each other on a number of points which go to the very foundation of the case. It is in the light of this evidence that the appellant challenges the judgment of conviction on a number of grounds. It is urged by learned counsel appearing for the appellant that the prosecution witnesses contradicted each other on a number of points which go to the very foundation of the case. Learned counsel submits that the recoveries and specimen signatures have been made in violation of Article 20(3) of the Constitution of India, the FSL reports have not been proved in accordance with law and all the circumstances against the accused have not been put to him under Section 313 Cr.P.C. 13. We have heard learned counsel for the appellant and have gone through the record of the case. 14. Learned counsel submits that the only explanation qua the incident which occurred is sudden quarrel on account of the parking of the motorcycle by PW-6 Sanjay, after which a fight ensued prompting the appellant to fire at the complainant. There is no premeditation and the act was only one where the incident was caused by the provocation of the complainant and PW-6 Sanjay. There was no previous enmity between the parties. 15. Learned counsel for the appellant places reliance on the judgment of the Supreme Court in Dhondey and Others vs. The State of U.P. (1972)4 SCC 729 , in which the appellants had been convicted under Section 326 IPC for cutting the nose of two persons. The Court holds:- “1. The appellants have been convicted under Section 326 read with Section 34 of the Indian Penal Code and for that offence, each one of them has been sentenced to suffer rigorous imprisonment for four years. 2. The prosecution case was that the first appellant who is a Chamar was in the service of Khelari, PW 3, an Ahir. PW 3 developed intimacy with the wife of the first appellant. This was resented by the first appellant. Because of that enmity on January 14, 1967 at about 9.00 p.m. the appellants caught hold of Kamla, the wife of the first appellant and cut her nose. On hearing her cries PW 3 came near the house of the first appellant. The appellant caught hold of him and cut his nose as well. 3. The appellants other than the first appellant denied their presence at the time of the occurrence. On hearing her cries PW 3 came near the house of the first appellant. The appellant caught hold of him and cut his nose as well. 3. The appellants other than the first appellant denied their presence at the time of the occurrence. According to appellant 1 when he came back to his house at about 9.00 p.m. on that day he found his wife in the company of PW 3 and on seeing them together, he completely lost his temper, caught hold of both of them and cut their noses. Both the Courts below have come to the conclusion that all the appellants had joined together in cutting the noses of Kamla and Khelari and we agree with that finding. But coming to the circumstance under which their noses were cut, we are more inclined to accept the version given by the first appellant. His version is not only a probable one but is also fully corroborated by the testimony of PW 4 Maula. PW 4 admitted during the course of cross-examination that when he came to the scene of occurrence on hearing cries, he saw both Kamla and Khelari inside house and they came out from the house sometime later. It is further seen from the evidence that Kamla told him on that night that when she and Khelari were inside her house, the appellants came and cut their noses. Both the Courts below have completely overlooked the significance of the evidence of PW Maula. 4. In the result we partly allow the appeal, set aside the conviction of the appellant under Section 326/34, Indian Penal Code but convict them under Section 335/34 IPC and sentence each of them to suffer rigorous imprisonment for two years. The appeal is allowed to the extent mentioned above. In other respects it is dismissed.” (pp.729-730) The Court granted benefit of Section 335 IPC to the accused sentencing them to two years rigorous imprisonment. 16. The second decision relied upon by learned counsel is Ghasiram and Another vs. State of Chhattisgarh, 2011(3) Crimes 672 to urge that benefit of Section 335 IPC deserves to be given to the accused because of the provocation and the sentence should be reduced. 17. Learned counsel places reliance on Dalip Singh vs. State of Haryana, 2008(3) RCR (Criminal) 311, to invoke the applicability of Section 335 IPC for reduction in sentence. 17. Learned counsel places reliance on Dalip Singh vs. State of Haryana, 2008(3) RCR (Criminal) 311, to invoke the applicability of Section 335 IPC for reduction in sentence. The other decisions relied upon are Upparapalli Tirumala Rao vs. State of A.P. 2004 Cri.L.J.4514 and Kerala High Court in Kunjuvarkey vs. State of Kerala, 2001(1) RCR (Criminal) 446, Punjab and Haryana High Court in Pritam Singh vs. The State of Punjab, 1983(2) RCR (Criminal) 485, where conviction under Sections 307 and 320 IPC were altered to one under Section 335 IPC when the Court held that it was the complainant who invited the attack on provocation. (See also: State of M.P. vs. Rajesh and Others, 1997 Cri.L.J. 2466 and Baljinder Singh @ Bittu vs. State of Punjab, 2011(4) RCR (Criminal) 697). In Baljinder Singh’s case, the incident took place without any element of premeditation and in this event the sentence imposed was reduced by the Supreme Court from four years rigorous imprisonment to two years for offences under Section 326 IPC and the amount of fine was increased from Rs.5000/-to Rs.50000/-. The other sentence imposed under Section 323 IPC remained unchanged. 18. Lastly, learned counsel submits that merely because a fire arm has been used, it does not establish the intention and intent to commit murder. Learned counsel places reliance in the case of Inderjit alias Jitu vs. State of Himachal Pradesh, 2011(2) Shim.L.C. 361 , holding that in order to attract the liability under Section 307 IPC the necessary ingredients should and ought to be proved, the intention and the fact that the act was committed with the knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder. Judgment of the Supreme Court in Sarju Prasad vs. State of Bihar, AIR 1965 SC 843 was followed by this Court in Inderjit alias Jitu vs. State of Himachal Pradesh, 2011(2) Shim.L.C.361. Learned counsel submits that in Inderjit’s case a muzzle loading gun was used by the accused who fired at the complainant who was at a distance of about 25 feet, the pellets were embedded in the shoulder of the complainant. 19. Learned counsel submits that in Inderjit’s case a muzzle loading gun was used by the accused who fired at the complainant who was at a distance of about 25 feet, the pellets were embedded in the shoulder of the complainant. 19. Learned Additional Advocate General submits that the learned trial Court was correct in convicting the accused for offences under Section 307 IPC as the act committed by him was of such a nature which would have caused death of the complainant in all probability. He submits that the act was done with the intention and knowledge that by the act committed by the accused he would have caused death and would be guilty of murder. He submits that the accused was armed with a revolver and shot at the complainant without provocation and he was the person responsible for the same. 20. In Sarju Prasad’s case, which was relied upon by this Court in Inderjit’s case, the accused had caused injuries by a knife but not on the vital part of the body and this was sufficient to take the accused out of the purview of Section 307 IPC. 3. 21. We advert to the decision in Sachin Jana and Another vs. State of West Bengal, (2008)3 SCC 390 holding:- “10. … … … … The above position was highlighted in Girija Shankar vs. State of U.P. (2004)3 SCC 793 , SCC pp. 797-98, paras 9-10. 11. Section 307 IPC reads: 307. Attempt to murder -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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.' To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. 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 the 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.” This position was highlighted in State of Maharashtra v. Balram Bama Patil (1983)2 SCC 28 ).” (p.393) 22. It is the totality of the facts as established on the record that we have to consider the case of the other appellant. There is no doubt in our mind that (a) the appellant was armed at the time of the commission of the offence, (b) that he shot at the complainant with a fire arm which hit him and shattered his wrist bone, (c) that the act was caused unprovoked. 23. We have not persuaded to hold that the provisions of Section 335 IPC are attracted to the facts of the present case. We do not find any evidence on the record to establish that there was an grave and sudden provocation which promoted the accused to use fire arm and he neither intended nor knew that it would likely to cause grievous hurt. Section 335 provides:- “335. We do not find any evidence on the record to establish that there was an grave and sudden provocation which promoted the accused to use fire arm and he neither intended nor knew that it would likely to cause grievous hurt. Section 335 provides:- “335. Voluntarily causing grievous hurt on provocation.- Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both. Explanation – The last two sections are subject to the same provisos as Exception 1, section 300.” 24. It is clear from a bare reading of the evidence that the first part of the provisions requires that the accused should have caused grievous hurt but then it is subject to two conditions that it was caused by (a) grave and sudden provocation and (b) that the person neither intended nor knew that it was likely to hurt any person other than one who gave the provocation. We do not find any iota of evidence that there was any grave and sudden provocation rather the evidence of the complainant PW-2 Ram Lal and Sanjay PW6 established that the accused himself provoked the quarrel/fight. It was not a case where he incited the assault. We, therefore, reject the contention of the appellant that the act was one which was the out come of any provocation having been given to the appellant. 25. On the question of sentencing, learned counsel for the appellant submits that the appellant is an ex-serviceman released from the army in the year 1991 on medical ground as he was suffering from neurosis 300-D and it is because of his illness that he became enraged. He has three school going children and he is the sole bread earner of his family and it is the first offence and he was not previously convicted. He has three school going children and he is the sole bread earner of his family and it is the first offence and he was not previously convicted. This fact is urged before the learned trial Court which noticed that at the end of trial, an application for bail was moved by the appellant when the Court had directed that an inquiry to be made under Section 329 Cr.P.C. The Medical Board at the RPGMC, Tanda by its report dated 21.5.2011 opined that the appellant was of a sound mind and capable of doing his own defence. We find from the medical certificate on record which states that: “In reference to Letter No.ASJ/I/DMA/2011-1045 Dated:-07 May 2011 from Additional Sessions Judge, (I), Kangra at Dharamshala, the patient Baljeet Singh S/O Sh.Amin Chand was admitted in Psychiatry department Dr.RPGMC Kangra at Tanda vide Cr.No.090511121252 on 9/5/2011. He was examined on 20.05.2011 by the constituted medical board at Dr.RPGMC, Tanda. Psychiatric evaluation revealed him to be suffering from Depressive Disorder, unspecified (ICD-10 F 32.9). He has been treated with medicines and counseled for coping skills. His talks are relevant and coherent. He is able to comprehend things. He has insight into his illness. His social and test judgement is intact. Hence, Medical Board is of the opinion that the patient Baljeet Singh is not of unsoundness of mind and he is capable of making out his defence.” 26. We find that the learned trial Court has only considered one aspect of the case and that was that he was not of sound mind but forgotten the fact that he was suffering from depressive disorder. Learned trial Court should and ought to have taken this into consideration, more especially when we also find from the record that the army boarded him out on the ground that he was suffering from neurosis. The Army Medical Board certifies that he suffers from “immature hystriomic” personality and is unable to bear the stress of military service and has been classified as unfit for military service. These factors were also to be considered at the time of sentencing. 27. The Army Medical Board certifies that he suffers from “immature hystriomic” personality and is unable to bear the stress of military service and has been classified as unfit for military service. These factors were also to be considered at the time of sentencing. 27. Before adverting to that, we find it strange that he has been granted a licence to possess a fire arm by the Magistrate oblivious of the fact that the person suffers from a mental disorder which though not lunacy but nonetheless of such a nature which would disentitle him from possessing a fire arm weapons. In the totality of the facts and circumstances of the case, we hold that the learned Court below was right in convicting the appellant under Section 307 IPC. We reject the submissions made on behalf of the appellant that the benefit of Section 335 IPC deserves to be granted to him. 28. On the aspect of sentencing, we hold that (a) the ends of justice would be served in case the sentence of imprisonment is converted into one already undergone which is about three years, (b) a fine of Rs.1,00,000/-(Rs.one lac) is imposed upon the appellant with this condition that he deposits this amount in the trial Court within a period of six months from today, failing which the appellant shall further undergo rigorous imprisonment for two years. 29. In this view of the matter we are supported by the judgment of the Supreme Court in Hari Singh vs. Sukhbir Singh and Others, (1988)4 SCC 551 , holding:- “10. Sub-section(1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 12. Joginder in this case is an unfortunate victim. His power of speech has been permanently impaired. Doctor has certified that he is unable to speak and that is why he has not stepped into the witness box for the prosecution. The lifelong disability of the victim ought not to be bye-passed by the Court. He must be made to feel that the Court and accused have taken care of him. Any such measure which would give him succor is far better than a sentence by deterrence.” (pp.557-558) 30. On deposit of such fine, the amount shall be paid to the complainant PW-2 Ram Lal, (c) we direct that in future no fire arm licence or licence to carry any other weapon of any kind be granted to the appellant, (d) that the Probation Officer, Kangra shall supervise the accused for a period of two years from today and in case of his involvement in any other criminal case the matter shall be reported to this Court. We direct that the appellant be released from prison forthwith in case he is not wanted in any other case for which appropriate follow up action shall be taken by the Registry of this Court.