JUDGMENT Rakesh Tiwari, J. We have heard Sri K.N. Mullah, learned A.G.A. appearing for the appellant-State, and Sri Anil Srivastava, learned counsel appearing for the respondents-accused. Perused the record. 2. As per report dated 12.9.2012 of Sri V.K. Srivastava, O.S.D. accused-respondents no. 1, 3 and 5 have died, therefore, appeal against them stand abated. 3. This government appeal is preferred under Section 378 Cr.P.C. on behalf of State of U.P. against the accused-respondents, namely Munna Lal son of Babu Ram, Mathura Prasad son of Mihi Lal, Sadhu son of Ved Ram, Dori Lal son of Sadhu Ram and Kali Charan son of Murlidhar. The appellant challenges the validity and correctness of the impugned judgment and order dated 10.9.1984 passed by IVth Additional Sessions Judge, Etah in S.T. No. 723 of 1983. 4. The accused-respondents were put on trial for the charges under Sections 148 and 307/149 I.P.C. by the Police Station-Soron and acquitted by the impugned judgment dated 10.9.1984, aforesaid. 5. The prosecution case before the sessions court in brief was that prior to the incident in question, the election of office of the Pradhan and the members of Gaon Sabha had created bitter enmity between the accused persons, on one side, Bhikam Singh and Sohan Lal on the other. On 2nd day of April, 1983 when Bhikam Singh, complainant (P.W. 2) and Sohan Lal (P.W. 3) were hunting fish at the bank of a pond situated at a distance at about 3 furlongs towards north of the village Nagla Khanji, the accused persons along with three others namely Hori Lal, Malkhan and Bhagwan Singh reached there; Kali Charan armed with his licensed gun and the remaining accused persons armed with a country made pistol started firing at Bhikam Singh and Sohan Lal from about 500 yards. On the other side of the pond, Bhikam Singh and Sohan Lal received some pellet injuries and started running towards the village. These were followed by the accused persons and when they reached near the lane of house of Kishan Lal, eight persons of the village namely Siya Ram (P.W. 1), Bhoopal, Mohan Lal, Brij Lal, Lakhan, Hubb Lal, Deo Saran and Kishan Lal reached there to know the case and intervene with the matter. However, the accused persons fired indiscriminately causing injuries to the aforesaid eight persons as well as again to Bhikam Singh and Sohan Lal. However, the accused persons fired indiscriminately causing injuries to the aforesaid eight persons as well as again to Bhikam Singh and Sohan Lal. Upon hue and cry Sukh Ram (P.W. 4), Ram Prakash and Nand Ram also reached there who challenged the accused persons. Thereafter, the accused persons ran away. 6. Bhikam Singh (P.W. 2) then dictated a report of the incident to Deo Saran, which was handed over at the Police Station, Kasganj, District-Etah at about 3.30 P.M on the same day i.e. on 2.4.1983 and the case was registered against the accused persons. All the injured persons were sent to Primary Health Centre, Kasganj with Chitthi Majroobi, where they were medically examined by Dr. R.C. Bajpai (P.W. 6). He found the following gun shot injuries on the person of Sohan Lal, Siya Ram, Bhikam, Deo Saran, Brij Lal, Mohan Lal, Hubb Lal, Kishan Lal and Lakhan Singh: - Sohan Lal: 1. Gun shot wound of entry, two in number measuring 0.8 cm x 0.4 cm, 0.4 cm x 0.4 cm on left calf in an area of 11 cm x 4 cm with swelling 12 cm x 7 cm around the wound. Margins inverted. Congested blood present around the wound. No blackening or scorching seen. 2. Abrasion 0.8 cm x 0.3 cm on left leg lower end and outer 8 cm above left ankle. Injury no. 1 was kept under observation, and the Medical Officer advised x-ray of left leg (calf). Siya Ram: 1. Gun shot wound of entry 2 in number measuring in size 0.3 cm x 0.3 cm each on left arm, outer and upper part in an area of 10 cm x 4 cm. Margins inverted. No blackening or scorching seen. 2. Gun shot wound of entry 4 in number measuring in size 0.3 cm x 0.3 cm each on left fore-arm back in an area of 17 cm x 9 cm. Margins inverted. No blackening or scorching seen. 3. Swelling 4 cm x 2.5 cm on back of left hand. 4. Gun shot wound of entry 0.3 cm x 0.3 cm on left thigh outer and upper part. 5. Gun shot wound of entry 3 in number, measuring 0.3 cm x 0.3 cm each on left side of chest and back coastal region in an area 17 cm x 13 cm. Margins inverted. Injuries nos. 1, 2, 4 and 5 were kept under observation. 5. Gun shot wound of entry 3 in number, measuring 0.3 cm x 0.3 cm each on left side of chest and back coastal region in an area 17 cm x 13 cm. Margins inverted. Injuries nos. 1, 2, 4 and 5 were kept under observation. The doctor advised x-ray of left arm, left fore-arm, left thigh, left side of chest. Bhikam Singh: 1. Gun shot wound of entry 0.5 cm x 0.5 cm on left palm below root of between index and middle finger. Margins inverted. Blackening and scorching is not present. 2. Gun shot wound of entry 4 in number, measuring in size 0.5 cx x 0.5 cm each on chest and abdomen in an area of 25 cm x 10 cm each. Margins inverted, scorching and blackening not present. Both injuries were kept under observation. The Doctor advised x-ray of left hand and chest and abdomen. Deo Saran: 1. Gun shot wound of entry 0.4 cm x 0.4 cm on right forearm lower part and back. Margins inverted. 2. Gun shot wound of entry 0.4 cm x .4 cm on left side of back, 11 cm below lower end of left scapula. Margins inverted. 3. Abrasion 0.2 cm x 0.2 cm on outer and upper part of right thigh. 4. Gun shot wound of entry measuring 0.4 cm x 0.4 cm each on back and inner of left leg in an area of 16 cm x 5 cm. Margins inverted. All injuries were kept under observation. The Doctor advised x-ray of right fore-arm, left side back of chest, left leg, right thigh. Brij Lal: 1. Abrasion 0.2 cm x 0.2 cm on front of left fore-arm lower 1/3rd. 2. Abrasion 0.2 cm x 0.2 cm on back of left leg lower 1/3 rd. Mohan Lal: 1. Abrasion 0.4 cm x 0.4 cm on outer and upper portion of left arm. 2. Abrasion 0.4 cm x 0.4 cm on left side of abdomen and outer. 3. Abrasion 0.4 cm x 0.4 cm on back and lower part of left thigh. 4. Abrasion 0.2 cm x 0.2 cm on outer and upper part of left leg. 5. Abrasion 0.3 cm x 0.2 cm on inner and upper portion of right leg. Hubb Lal : 1. Abrasion 0.3 cm x 0.3 cm on front and upper portion of left thigh. 2. 4. Abrasion 0.2 cm x 0.2 cm on outer and upper part of left leg. 5. Abrasion 0.3 cm x 0.2 cm on inner and upper portion of right leg. Hubb Lal : 1. Abrasion 0.3 cm x 0.3 cm on front and upper portion of left thigh. 2. Gun shot wound, two in number, measuring 0.4 cm x 0.4 cm each on left leg front and middle in an area of 4 cm x 2 cm. Margins were inverted. No blackening or scorching present. Injury no. 2 was kept under observation. The Doctor advised x-ray of left leg. Kishan Lal : 1. Abrasion 0.2 cm x 0.2 cm on left side of nose. 2. Abrasion 0.2 cm x 0.2 cm on left side of chest 11 cm above from nipple. 3. Abrasion 0.3 cm x 0.3 cm on front and lower part of left thigh. 4. Abrasion 0.3 cm x 0.3 cm on inner and upper part of left leg. 5. Abrasion 2 in number measuring 0.3 cm x 0.3 cm each on outer side of left leg lower part in an area of 4 cm x 2 cm. 8. The matter was investigated by S.I. Hira Lal who recorded the statements of complainant and other witnesses of the occurrence, prepared the site plan and submitted the charge sheet against the accused persons of forming an unlawful assembly with common object of committing murder of Bhikam Singh and Sohan Lal and of all those who might interfere to save these two persons and in prosecution thereof did commit riot and committed an offence punishable under Section 148 I.P.C. All the accused persons were further charged with Section 307 read with Section 149 IPC, while still being member of the unlawful assembly chased Bhikam Singh and Sohan Lal to the village Nagla Khanji and when intervened by Siya Ram, Dev Saran, Brij Lal, Mohan Lal, Hubb Lal, the accused or some of them fired with their respective weapons in their hands causing injuries under the circumstances with knowledge and intention that if any of those persons had died, the accused would be guilty of murder; thereby the accused again committed an offence under Section 307 read with Section 149 IPC within the cognizance of the sessions court. 9. 9. The accused persons pleaded not guilty to the charges in their statement under section 313 Cr.P.C and stated that they have been falsely implicated due to enmity and had taken a defence that they had heard in the village that the aforesaid injured persons had gone for fishing in the pond aforesaid where some hunters were hinder water fowls who fired at them and pellets struck the said injured persons. 10. The prosecution in support of its case examined Siya Ram (P.W. 1), Bhikam Singh (P.W. 2), Sohan Lal (P.W. 3) and Sukh Ram (P.W. 4) as eye witnesses of the occurrence, whereas S.I. Hira Lal (P.W. 5), I.O. of the case and Dr. R.C. Bajpayee (P.W. 6) who proved the injuries report were examined as formal witnesses. 11. On appreciation of the facts and evidence on record, the sessions court acquitted all the accused persons by the impugned judgment dated 10.9.1984, mainly on the ground that all the prosecution witnesses are the partisan and their testimony is full of contradictions, embellishment and discrepancies. 12. Aggrieved by said judgment, appellant-State of U.P. has filed present appeal. 13. The contention of learned A.G.A. appearing for the State is that the accused persons had formed an unlawful assembly with common object of committing murder of Bhikan Singh and Sohan Lal. Pursuant to their common object, the accused persons on the date of incident when Kali Charan armed with a gun and each of other accused armed with a country made pistols committed riot and attempt to murder by firing from their respective firearms at Bhikam Singh and Sohan Lal causing injuries. Not only this, they also fired indiscriminately at the persons in the village who had come to intervene. These acts were done by them knowingly and with an intention that in case these two persons succumbed, they would be guilty of an offence under Section 302 I.P.C., but as Bhikam Singh, Sohan Lal and others were only injured, the accused were rightly charged under Section 307 read with Section 149 I.P.C. 14. These acts were done by them knowingly and with an intention that in case these two persons succumbed, they would be guilty of an offence under Section 302 I.P.C., but as Bhikam Singh, Sohan Lal and others were only injured, the accused were rightly charged under Section 307 read with Section 149 I.P.C. 14. In this backdrop, learned A.G.A. further urged that learned sessions judge has wrongly and illegally disbelieved the injured witnesses whose version fully supported the prosecution case; that from the fact and evidence on record, it is apparent that Sohan Lal had received one gun shot wound, Siya Ram four gun shot wounds, Bhikam Singh two gun shot wounds, Deo Saran three gun shot wounds and Hublal one gun shot wound, as such, knowledge and intention of committing murder of the injured persons in pursuance of their common object and the manner in which the incident was caused by the accused persons is established beyond doubt by the prosecution. In these circumstances, the learned sessions court has recorded absolutely incorrect findings, which are neither based on material evidence on record nor are explained by the facts as dealt by the learned Sessions Court in the impugned judgment, hence the order being based on surmises and conjectures, and incorrect appreciation of testimony of injured witnesses, is liable to be quashed. 15. It is that the trial court had examined the testimony of Siya Ram, Bhikam Singh, Sohan Lal and Sukh Ram ( P. Ws. 1 to 4) from which it is evident that the accused persons fired at Bhikam Singh and Sohan Lal who were fishing at the pond about three furlongs away from the village- Nagla Khanji towards north. On receiving gun shot injuries, Bhikam Singh and Sohan Lal had ran towards the village and when they were inside the village on the Rasta between the houses of Deep Chand and Kishan Lal, the accused persons again fired upon them upon which the witnesses Siya Ram and seven others reached there to intervene. 16. On receiving gun shot injuries, Bhikam Singh and Sohan Lal had ran towards the village and when they were inside the village on the Rasta between the houses of Deep Chand and Kishan Lal, the accused persons again fired upon them upon which the witnesses Siya Ram and seven others reached there to intervene. 16. Per contra, learned counsel for the accused-respondents, supporting the impugned judgment of acquittal submitted that the view taken by the learned court of sessions is a possible one; that the defence had been successful in creating a reasonable doubt in the mind of the trial court with regard to the improbability of manner in which the prosecution story is said to have unfolded the incident and false implication of the accused persons, hence the judgment of the trial court may not be revisited by re-appreciation of facts and substituted by the own findings by this Court in appeal by quashing the judgment impugned for holding the accused persons guilty of the charges. 17. Upon hearing learned counsel for the parties at length and on perusal of record, we are unable to agree with the reasoning of learned trial court recorded in its judgment acquitting the accused-respondents. This is for the following reasons based on admitted facts; that Bhikam Singh and Sohan Lal are said to be hunting fish at the pond situated about three furlongs from the Village-Nagla Khanji towards north; that the accused persons are said to have fired at the water-fowls from other side of the pond from the distance of five hundred meters; that there is no evidence on record that there was any person hunting water-fowls/birds in the area near pond; that a person looking from the side of pond would have clearly seen that Bhikam Singh and Sohan Lal were in line with water-fowls in case that man was hunting water birds and would have aimed at some other targets. 18. 18. Admittedly, Bhikam Singh and Sohan Lal were injured, but received some pellet injuries only at the first instance near pond due to dispersal of pellets from the gun shot; that this injury shows that gun in fact was cited at the injured Bhikam Singh and Sohan Lal, but dispersal did not hit any body else or any bird at all; that in case Bhikam Singh and Sohan Lal had been injured due to some mistake by other person, the accused persons would not have fired upon them subsequently. 19. Thus, admittedly the prosecution story takes two fold of different instances. In the first instance, Bhikam Singh and Sohan Lal were fired upon who ran away to the village and were chased by the accused persons and in the second instance the accused persons again fired not only the aforesaid two persons, but fired upon those persons who so ever came to intervene in the matter. In this way, accused persons have voluntarily caused simple hurt to the victims with fire-arms, deadly weapons in prosecution of their common object. Since none of the injuries sustained by the victim is grievous in nature or dangerous to life, therefore, the charge framed under Section 307/149 IPC is not proved. Maximum offence punishable under Sections 148, 324/149 IPC are constituted, therefore, accused persons are found guilty under Sections 148, 324/149 IPC. 20. In result, the finding of acquittal recorded by the trial court is reversed and the impugned judgment and order dated 10.9.1984 is hereby set aside. Appeal is, accordingly, allowed. 21. Accused persons namely, Mathura Prasad son of Mihi Lal and Dori Lal son of Sadhu Ram, are convicted under Sections 148 and 324/149 IPC. They are sentenced for a period already undergone and to pay a fine of Rs.2,000/- under Section 148 IPC and in case of default of payment of fine they are to undergo a simple imprisonment for one month. They are sentenced under Section 324/149 IPC for a period already undergone and to pay a fine of Rs.8,000/-. In case of default of payment of fine, they are to undergo a simple imprisonment for a period of six months. 22. The Registry is directed to send a copy of this judgment to the C.J.M. to ensure compliance of the order.