Judgment : Hon'ble Mrs. Ranjana Pandya,J. 1. Challenge in this appeal is to the judgment and order dated 11.10.1982 passed by Sri K.N. Ojha, IV Additional Sessions Judge, Budaun in Sessions Trial No. 317 of 1981 (State Vs. Ekram and Others) arising out of Crime No. 218 of 1980, Police Station-Ujhani, District, Budaun, whereby the appellants were found guilty. The appellant Ekram was found guilty under Section 307 read with Section 34 I.P.C. and was sentenced to three years rigorous imprisonment, whereas the accused appellants Mahendra Pratap Singh and Surendra Dev Singh were found guilty under Section 307 I.P.C. and were sentenced to four years rigorous imprisonment. 2. Filtering out unnecessary details, the prosecution version as unfolded during trial is that Mohar Singh and accused are the resident of the same village Jiraulia, Police Station-Ujhani, District-Budaun. Accused Mahendra Pratap Singh is the son of accused Ekram Singh and the accused Suresh alias Surendra Dev Singh is nephew of Ekram Singh. On 4.5.1980 at about 9:00 a.m. injured Mohar Singh was digging a foundation for construction of his house in his land. All the three accused persons came there and objected to it. Mohar Singh resisted that he was digging foundation on his own land. There was exchange of hot words. At this Ekram Singh asked Mahendra Pratap Singh and Surendra Dev Singh to fire at Mohar Singh. Mahendra Pratap Singh fired on the leg of the Mohar Singh with a country made pistol. Mohar Singh ran from the place, but while Mohar Singh was running Surendra Dev Singh fired at him with a country made pistol on his back. Witness Bachchan Singh, Fateh Singh, Shiv Lal Singh and Kalyan Singh came to the place of the incident. Wife of the Prem Singh also came on the spot, at which Ekram Singh asked her to set her thatch on fire, so that Mohar Singh and his family members could be falsely implicated. Hence, she set fire to her thatch and kitchen. The incident was narrated by Mohar Singh to one Babu Singh, who scribed the F.I.R., which was lodged by Mohar Singh at the police station-Ujhani on 4.5.1980 at 1:10 p.m. 3. The injured was examined by Dr. Hence, she set fire to her thatch and kitchen. The incident was narrated by Mohar Singh to one Babu Singh, who scribed the F.I.R., which was lodged by Mohar Singh at the police station-Ujhani on 4.5.1980 at 1:10 p.m. 3. The injured was examined by Dr. S.C. Naugriya , P.W. 5, who found the following injuries on the body of the injured Mohar Singh :- (a) Two wounds of entrence of size 0.25 cm x 0.2 cm on back of middle of right thigh. Advised X-ray. (b) Wound of entrence of size 0.25 cm x 0.2 cm on medial malleoks of left leg. Advised X-ray. (c) One wound of entrence of size 0.25 cm. x 0.2 cm outer side of lower of 1/3rd of right thigh. Advised X-ray. He proved the injury report as Exhibit Ka-4. This witness further proved the injury report of Smt. Ram Devi, who sustained the following injuries and proved it as Exhibit Kha-1 :- (i) Two abrasion linear 4 c.m. long x2 c.m. long on upper 1/3rd of left leg. (ii) Abrasion 1 c.m. X .5 on lower 1/3rd of left leg. In the opinion of the Doctor the injuries of the injured Mohar Singh were simple duration about 1/2 day. X-ray was advised for detection of pellet. P.W. 7 Dr. V.P. Kulshreshtha prepared the supplementary report and proved it as Exhibit Ka-5. He detected two radio opaque shadow of metallic density and two radio opaque shadows in ankle area of left leg. 4. The investigating Officer interrogated the witness, inspected the spot, prepared site plan. The investigation ended into charge-sheet against the accused persons. 5. After committal of the accused to the court of Sessions, the charges of offence punishable under Section 307 with Section 34 were framed against the accused Ekram. Charges under Section 307 I.P.C. were framed against the accused Mahendra Pratap Singh and Surendra Dev Singh who abjured the guilt and claimed trial. 6. In order to prove its case, the prosecution had examined injured Mohar Singh, P.W. 1, Kalyan Singh P.W. 2, Bachchan Singh P.W. 3, S.I. Sukhpal Singh, P.W. 4, Dr. S.C. Naugriya, P.W. 5, Hemraj, X-ray Technician, P.W. 6, Dr. V.P. Kulshrestha, P.W. 7 and Constable Shiv Raj Singh, P.W. 8. 7. The accused persons in the statement recorded under Section 313 Cr.P.C. denied the occurrence. S.C. Naugriya, P.W. 5, Hemraj, X-ray Technician, P.W. 6, Dr. V.P. Kulshrestha, P.W. 7 and Constable Shiv Raj Singh, P.W. 8. 7. The accused persons in the statement recorded under Section 313 Cr.P.C. denied the occurrence. Accused Ekram Singh stated that he had enmity with the informant and his family members. There was litigation between his brother and the informant and his family members, hence he had been falsely implicated. Accused Surendra Dev Singh while denying the occurrence has stated in his statement recorded under Section 313 Cr.P.C. that he was not present at the place of the occurrence. He is a teacher and has been falsely implicated. Accused Mahendra Pratap Singh denied the occurrence and stated that he had been falsely implicated. 8. No oral evidence was adduced by the accused persons, but papers filed in defence which were copies of series of litigation between the parties. The learned trial court after hearing the learned counsels for the parties convicted and sentenced the accused persons as mentioned above. Being aggrieved, the accused have come up in appeal. 9. I have heard learned counsel for the parties at length and perused the original record of the trial court. 10. Accused-appellant No. 1 Ekram Singh died during the pendency of the appeal, hence appeal in respect of accused-Ekram Singh stood abated. 11. Learned counsel for the appellants castigating the impugned judgment has argued that the learned trial court has not given any convincing and cogent reasons to record the conviction of the appellant for the offence punishable under Section 307 I.P.C.; the alleged injuries sustained by the injured are simple, neither dangerous nor fatal to life; that no X-ray plate regarding the injuries has been proved by the prosecution, thus, the learned trial court has grossly erred in convicting the accused appellant for the offence punishable under Section 307 I.P.C., that in the facts and circumstances of the case, at the most an offence punishable u/s 324 IPC is made out. Lastly it has been submitted that at present appellant No. 2 Mahendra Pratap Singh is about 59 years of age and the appellant No. 3 Surendra Dev Singh is about 66 years of age. Thus, sending the accused persons to jail at this juncture of age, when they are approaching their last phases of live, would not be feasible. 12. Lastly it has been submitted that at present appellant No. 2 Mahendra Pratap Singh is about 59 years of age and the appellant No. 3 Surendra Dev Singh is about 66 years of age. Thus, sending the accused persons to jail at this juncture of age, when they are approaching their last phases of live, would not be feasible. 12. Per contra, learned AGA supporting the impugned judgment has contended it is a broad-day light case having direct evidence with strong motive against the accused, so there is no illegality factual or legal in the findings recorded by the learned trial Court and the appeal is liable to be dismissed. 13. Before proceeding to analyse the evidence on record, to appreciate the arguments advanced by the learned counsels for the parties, it would be in the fitness of things, if the statements given by the prosecution witnesses in their examination-in-chief are noted in brief. 14. The informant being the injured Mohar Singh, P.W. 1 has stated that the accused persons are related to each other. About three months prior to the statement at about 9:00 a.m., he was digging foundation on his land. Accused persons came and resisted him for doing so. There was exchange of hot words, the accused persons abused him. Suddenly, Ekram Singh asked Mahendra Pratap Singh and Surendra Dev Singh to kill Mohar Singh, at this Mahendra Pratap Singh fired a shot with his country made pistol, which hit this witness on his leg. He ran from there, suddenly Surendra Dev Singh alias Suresh fired from behind with his country made pistol, which hit the back of the witness. Witnesses Bachchan Singh, Fateh Singh and Kalyan Singh witnessed the incident. Wife of Prem Singh also came to the spot, who was asked by Ekram Singh to set her thatch ablaze, so that the injured and his family members could be falsely implicated. At this she set her thatch and kitchen ablaze. Report of the incident was lodged. 15. P.W. 2 is Kalyan Singh, who is said to be a witness to the incident. He has stated that he heard abuses, at which he came out. The informant Mohar Singh was digging the foundation, suddenly the accused persons came at the place of the incident and resisted Mohar Singh from digging the foundation. 15. P.W. 2 is Kalyan Singh, who is said to be a witness to the incident. He has stated that he heard abuses, at which he came out. The informant Mohar Singh was digging the foundation, suddenly the accused persons came at the place of the incident and resisted Mohar Singh from digging the foundation. Altercations took place between the parties, suddenly Ekram Singh asked Mahendra Pratap Singh and Surendra Dev Singh to fire, at which Mahendra Pratap Singh fired shot on Mohar Singh with his country made pistol, which hit Mohar Singh. Mohar Singh ran at which Surendra Dev Singh fired shot which hit Mohar Singh on the back. 16. P.W. 3 is Bachchan Singh, who is also said to be witness of the incident. 17. While supporting P.W. 1 Mohar Sighh and P.W. 2 Kalyan Singh, he has stated that Mohar Singh was digging his foundation, suddenly the accused persons came at the place of the incident, alterations took place between both the parties. Ekram Singh asked Mahendra Pratap Singh and Surendra Dev Singh to kill Mohar Singh, at which Mahendra Pratap Singh fired a shot at Mohar Singh, which hit him on his leg. Mohar Singh ran from the place of occurrence, at which Surendra Dev Singh fired at him from behind, the fire hit him on his back. After which Mohar Singh ran away from there. Ekram Singh asked the wife of Prem Singh to set the thatch and kitchen ablaze, so that Mohar Singh and his family members could be falsely implicated. 18. P.W. 4 S.I. Sukhpal Singh is the Investigating Officer, in whose presence the case was registered. He inspected the spot, prepared the site plan and proved it as Exhibit Ka-2. He recorded the statements of the witnesses and submitted charge-sheet against the accused persons and proved it as Exhibit Ka-3. The evidence of P.W. 5 Dr. S.C. Naugriya and P.W. 7 Dr. V.P. Kulshrestha has already been discussed by me. P.W. 6 is Hemraj, X-ray Technician, who submitted the X-ray plate before the court. P.W. 8 is Constable Shiv Raj Singh, who prepared the chick report, G.D. and Majroobi Letter and proved it as Exhibit Ka-6, Ka-7 and Ka-8 respectively. After examining eight witnesses, the prosecution closed its evidence. 19. V.P. Kulshrestha has already been discussed by me. P.W. 6 is Hemraj, X-ray Technician, who submitted the X-ray plate before the court. P.W. 8 is Constable Shiv Raj Singh, who prepared the chick report, G.D. and Majroobi Letter and proved it as Exhibit Ka-6, Ka-7 and Ka-8 respectively. After examining eight witnesses, the prosecution closed its evidence. 19. On perusal of the original record of the trial Court particularly the evidence of the prosecution witnesses it transpires that the incident has been fully proved through the statements of the injured and eye witnesses P.W. 1 Mohar Singh, P.W. 2 Kalyan Singh and P.W. 3 Bachchan Singh. The presence of eye witnesses near the place of occurrence at the relevant time is probable and has been duly proved. There are no material contradictions or inconsistencies in the testimony of PW-1 to PW-3. The incident had taken place at about 9:00 a.m. and the report was lodged by the injured himself at 13:10 hrs on the same day. The distance of the police station from the place of the occurrence being 10 kms. 20. The injured was medically examined by the Doctor on the same day at 5:45 p.m., who was sent to the Doctor through Constable Veer Singh. Thus, there is no delay in reporting the crime to the police and medical examination of the injured is also prompt. Dr. S.C. Naugriya P.W. 5 has stated that the injuries could have been sustained by fire arm pellets on 4.5.1980 at 9:00 a.m. 21. The injured had clearly stated in his examination in chief that fire shot by the accused Mahendra Pratap Singh hit him on his leg, he ran at which the accused Surendra Dev Singh fired at him, which hit him on his back. As far as the injury of the injured are concerned, Dr. S.C. Naugriya, P.W. 5 in cross-examination has stated that Mohar Singh did not sustain any injury on his back and without perusing the X-ray plate and report he cannot say whether these injuries were caused by gun shot or not. All the injuries described by him were on the foot. Dr. V.P. Kulshrestha P.W. 7 in his cross-examination has stated that he cannot say since when the radio opaque shadows were in the body of the injured. He has also stated that no gun shot was visible externally. 22. All the injuries described by him were on the foot. Dr. V.P. Kulshrestha P.W. 7 in his cross-examination has stated that he cannot say since when the radio opaque shadows were in the body of the injured. He has also stated that no gun shot was visible externally. 22. To justify a conviction under 307 IPC, 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 gathered 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 this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof as has been laid down in State of Maharashtra Vs. Balram Bama Patil AIR 1983 SC Page 305. 23. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 of Indian Penal Code. It would all depend upon the facts of a given case. Intention has definitely to be seen. 24. It also emerges that all the injuries, even if accepted to be attributed to the appellants, were simple in nature and there is no iota of evidence to show that they were sufficient in ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellants in an offence punishable for simple hurt with a deadly weapon like country made pistol. Resultantly, the evidence can be said to indicate involvement of the appellants in an offence punishable for simple hurt with a deadly weapon like country made pistol. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellant about the likely death of the victim by causing the injuries, because they had not repeated the shots particularly when there was no possible protest either from the injured or the eye witnesses. If the intention would have been to kill the injured then the appellants must have repeated the fire shots from their firearms. 25. Learned counsel for the appellants has placed heavy reliance on the case of Kundan Singh Vs. State of Punjab AIR 1982 SC Page 213, wherein the Hon'ble Apex Court has observed as under: "We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and ha may be set at liberty forthwith." 26. In the case of Merambhai Punjabhai Khachar and others Vs. State of Gujarat AIR 1996 SC Page 3236 there was an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC. 27. In the case of Ramesh Vs. State of Gujarat AIR 1996 SC Page 3236 there was an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC. 27. In the case of Ramesh Vs. State of U. P. AIR 1992 SC Page 664, where a single injury was found on the back of the injured, the appeal of accused-appellants who was tried along with two others was convicted u/s 307/34 IPC and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted, was partly allowed by the Apex Court. His conviction was altered into section 324 IPC and the sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation. 28. In the instant case as regard the injuries are concerned as discussed earlier, there is no evidence on record to state that these injuries could have been fatal for the life of the injured or that the injuries were caused by the appellant Nos. 2 and 3 with the intention to kill the injured. Besides, the injuries on the body of the injured were on the non-vital part. Perusal of the oral evidence of the injured Mohar Singh makes it clear that after sustaining the injuries he went to the police station and lodged the report. Even P.W. 3 Bachchan Singh has stated that even after both the accused-appellants had fired the injured ran away from the spot. Thus, the fact that after sustaining the injuries the injured ran away from the spot and went to the police station is speaking for itself. 29. Thus, the aforesaid statement clearly shows that there was no intention of the accused-appellants to kill the injured. Had it been so they were not required to give any reason for causing fire arm injury to the injured and on seeing the injured, they could have straight away taking aim, fired shot on the injured in such a manner that he would have been killed then and there. Had it been so they were not required to give any reason for causing fire arm injury to the injured and on seeing the injured, they could have straight away taking aim, fired shot on the injured in such a manner that he would have been killed then and there. As stated earlier in cross-examination the injured has admitted that after the incident he went on his own to the police station to lodge the report as is also evident from the copy of the G.D. Thus, it shows that after sustaining the fire arm injuries the condition of the injured did not deteriorate at all. The simple injuries were on the non vital part of the body of Mohar Singh P.W. 1 i.e. on the right thigh and left leg and there was no repeat shot of fire-arm nor there was any intervening circumstances to do away with his life, thus, I am of the view that conviction of the appellant under Section 307 of the Indian Penal Code cannot be sustained but he is liable to be convicted for the offence punishable under Section 324 IPC. 30. As far as punishment of the accused under Section 324 I.P.C. is concerned Section 4 of the Probation of Offenders Act reads as follows:- "4. 30. As far as punishment of the accused under Section 324 I.P.C. is concerned Section 4 of the Probation of Offenders Act reads as follows:- "4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. Even, Section 360 Cr.P.C. confers the powers on the Court to order to release of probation of good conduct or after admonition. 31. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of the surviving appellants namely Mahendra Pratap Singh and Surendra Dev Singh under Section 307 IPC and sentence awarded to them are set aside. However, they have been found guilty for the offence punishable under Section 324 IPC and convicted thereon, they shall get the benefit of Section 4 of Probation of Offenders Act. Instead of sentencing the accused-appellants to undergo two years rigorous imprisonment under Section 324 I.P.C. they shall file two bond to the tune of Rs. 25,000/- each coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of two years. If, there is breach of any of the conditions they will subject themselves to undergo the aforesaid sentence before the trial court as per law. The bond aforesaid shall be filed by the accused-appellants within two months from the date of the judgment. 32. Let certified copy of the judgment be sent to the Court concerned for compliance. ———————