JUDGMENT 1. - This criminal appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order dated 20.07.1994 passed by Additional Sessions Judge No.2, Sri Ganganagar Camp at Sri Karanpur (for short "the trial court") in Sessions Case No.48/1993 whereby the learned trial Court convicted and sentenced the accused-appellant. The sentence awarded to the accused-appellant is as under:- Offence Sentence awarded by the trial court U/s 307 IPC To undergo 5 years' rigorous imprisonment and to pay a fine of Rs.200/- and in default of payment of fine to further undergo six months' rigorous imprisonment. U/s 25 of Arms Act To undergo 1 year's rigorous imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. U/s 27 of Arms Act To undergo 1 year's rigorous imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. 2. As per the case set up by the prosecution, an FIR was lodged by one Tara Chand on 04.02.1993 alleging that about 3-4 days back, the accused-appellant Balbir Singh came to his house in a drunken condition and started giving abusive language. At that time there was much altercation between them. It was further alleged that when the accused-appellant was going back, he told the complainant that he will see you later on. Thereafter on 04.02.1993 at about 10:30 in the night, the accused-appellant called the complainant outside his house. When the complainant came out from his house, the accused-appellant Balbir Singh fired upon him which was hit on his left hand. Thereafter the accused-appellant again fired two shot upon the complainant. Bhadar Ram and Jeeta Ram were also present at the time of incident. On the said complaint, the Police registered FIR No.14/1993 against the accused-appellant for offences under Sections 307 IPC and under Sections 25 & 27 of Arms Act and commenced investigation. After due investigation, the police filed challan against the accused-appellant for the aforesaid offences. Thereafter the case was committed to the Court of Additional Sessions Judge No.2, Sri Ganganager Camp at Sri Karanpur for trial. 3. After due investigation, the police filed challan against the accused-appellant for the aforesaid offences. Thereafter the case was committed to the Court of Additional Sessions Judge No.2, Sri Ganganager Camp at Sri Karanpur for trial. 3. After hearing the arguments and considering the material on record, the learned trial court framed charges against accused-appellant for offences under Sections 307 IPC and under Sections 25 & 27 of Arms Act, who pleaded not guilty and claimed trial. 4. During trial, the prosecution examined 10 witnesses and produced documentary evidences i.e. Exb-P/1 to P/24 in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, no witness was examined. 5. At the conclusion of the trial, the learned trial Court vide judgment and order dated 20.07.1994 convicted and sentenced the accused-appellant for offences under Sections 307 IPC and under Sections 25 & 27 of Arms Act. Hence, this criminal appeal. 6. Mr. M.K. Garg, appearing for the accused-appellant submitted that the case under Section 307 IPC cannot be made out against the accused-appellant and the case does not travel beyond Section 324 IPC as the injuries received by the complainant were on his non-vital part of body and simple in nature which has been proved from the statement of Dr. O.P. Sharma (PW-9) as also from the X-ray report of the complainant. To buttress his contention, counsel has relied upon the judgment of this Court in the case of Harlal v. State [2005 (2) Cr.L.R. (Raj.) 895]. It has been further submitted that according to the complainant, some altercation took place between him and the accused-appellant, about 3-4 days prior to the incident but no report was submitted by the complainant about that incident. This shows that no incident was taken place 3-4 days before lodging of the complaint. It is further submitted that no independent witness was examined by the prosecution. All the witnesses are relatives and brother of the complainant. It is submitted that the complainant in the FIR stated that the accused-appellant firstly fired upon him which hit on his left hand and thereafter he also fired two shots. Where these two shots were fired, has not been mentioned in the FIR. In his statement Jeeta Ram (PW-4) stated that the accused-appellant fired one shot which hit on the left hand of the complainant and thereafter he ran away. Where these two shots were fired, has not been mentioned in the FIR. In his statement Jeeta Ram (PW-4) stated that the accused-appellant fired one shot which hit on the left hand of the complainant and thereafter he ran away. This also shows that the accused-appellant fired only one shot upon the complainant. The learned counsel for the accused-appellant has therefore prayed for acquittal of the accused-appellant for the aforesaid offences. In the alternative, the learned counsel for the accused-appellant has submitted that considering the facts and circumstances of the case, the sentence awarded to the accused-appellant be reduced to the period already undergone by him. 7. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the accused-appellant. The learned PP has submitted that there is neither any occasion to interfere with the findings of the trial court, nor any compassion or sympathy is called for in the said case. 8. I have heard the counsel for the parties and perused the judgment of the trial court as also the evidence on record. 9. PW-9 Dr. O.P. Sharma in his statement stated that Exb-P19 is injury report of Tara Chand and regarding nature of the injury, the opinion of Radiologist was sought. PW-10 Dr. K.N. Markande in his statement stated that on 06.02.1993 the case was referred to him for reporting MLC X-ray Plat No.7474A dated 05.02.1993 which was taken and prepared under his instructions and on the basis of X-ray Plat No.92 dated 09.02.1993, the report was prepared. PW-9 Dr. O.P. Sharma in his statement further stated that on receipt of X-ray Ex-P/20, he found all injuries simple in nature. As per medical report, the pistol shots were found on non-vital part of the body and injuries were simple in nature. Under these circumstances, in the present case, offence under Section 324 IPC was only made out and not one which may fall under Section 307 IPC. This Court in para 13 of the case of Harlal (Supra) has observed as under : "In the case of Mani Ram (supra), where the pistol shots were found on non-vital parts of the body and the injuries were simple in nature, this Court found proved in the circumstances that Section 324 was only made out and not one which may fall under Section 307 of the IPC. The Court referred to a decision of Allahabad High Court reported in Bhagwan Din & Ors. v. State, AIR 1967 All. 580 , wherein it was held that the mere fact that a firearm was used to cause injuries will not bring the case under Section 307 IPC and there can be no presumption that the accused intended to cause death because he used a firearm which caused hurt. The intention of the accused persons has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where injury has actually been caused to the victim, the prosecution while attempting to establish that the real intention of the accused was to cause an injury or the nature which was sufficient in the ordinary course of nature to cause death or was so immediately dangerous that it would cause death had further to establish the intention or knowledge of the accused as contemplated in Section 307 IPC. The burden of proof is on the prosecution and not on the accused. In the instant case also, the gun was fired and some of the pallets injured Pokar Ram and the injuries sustained are simple in nature as per the statement of Dr. B.K. Dabda." 10. In view of above, I partly accept this appeal. The conviction and sentence awarded against the accused-appellants under Section 307 IPC is altered and instead of Section 307 IPC he is held guilty of the offence under Section 324 IPC and for this offence he is sentenced to the period already undergone by him. Further while maintaining the conviction of accused-appellant for offences under Sections 25 & 27 of Arms Act, his sentence is reduced to the period already undergone by him. However, the fine imposed by the trial court shall stand increased to Rs. 20,000/- upon same condition imposed by the learned trial court in case of default of payment of fine. The said amount of fine shall be deposited in the trial Court within a period of 90 days which may be disbursed to the complainant/injured Tara Chand by way of issuing notice to him. *******