JUDGMENT : 1. Initially in the matter of FIR No.289/2001 police submitted a chargesheet against three accused – Jagdish, Rakesh and Bhojraj. Chargesheet was also presented against one accused Rasbihari u/s 299 Cr.P.C. after getting him declared absconder. First three accused were tried by learned Additional District & Sessions Judge (Fast Track), Baran. Vide judgment dated 26.10.2002, all the three accused were acquitted from the charges u/s 326/34 and 307/34 IPC. However, they were convicted for offence u/s 324/34 IPC and sentenced each of them to undergo three years rigorous imprisonment and fine of Rs.3,000/- with default stipulation. When absconding accused Rasbihari was arrested, a separate complete chargesheet against him was submitted. He was separately tried by learned Additional District & Sessions Judge (Fast Track), Baran and vide judgment dated 19.4.2003, he was also acquitted from charge u/s 326/34 and 307/34 IPC and was convicted for offence u/s 324/34 IPC. However, he was given benefit of probation under Probation of Offenders Act. On submission of bail bonds and surety bonds as per stipulation. He was further ordered u/s 5 of the Probation of Offenders Act to deposit Rs.3,000/-. Complainant Ratan Lal has preferred two separate revisions against both these judgments. He has assailed the judgment dated 19.4.2003 in Revision Petition No.862/2003 whereby Rasbihari was given benefit of probation instead of passing sentence for the offence proved against him. By S.B. Criminal Revision Petition No.199/2003, complainant Ratan Lal has assailed the judgment dated 26.10.2002 passed by learned trial court whereby learned trial court has acquitted respondents – Jagdish, Rakesh and Bhojraj from charge for the offence punishable u/s 307/34 and 326/34 IPC. Accused Jagdish, Bhojraj and Rakesh have preferred S.B. Criminal Appeal No.1501/2002 assailing the judgment dated 26.10.2002 whereby they had been denied the benefit of the probation for offence proved against them. Since all these matters have arisen out of same FIR, they are being heard jointly and decided by this common judgment. 2. In brief, facts of the case are that complainant Ratan Lal (PW-3 in Sessions Case No.153/2001) and (PW-1 in Sessions Case No106/2002) informed ASI, Hansraj Meena, Police Station Sadar Baran, at Government Hospital, Baran on 5.8.2001 at about 5.45 PM that when he was at his agricultural field, accused Jagdish got his cow entered into his field for grazing. He warned him not to do so. But Jagdish started abusing him and slapped. He warned him not to do so. But Jagdish started abusing him and slapped. Thereafter, Jagdish went to the village. After some time, accused Jagdish, Rakesh and Rasbihari, armed with country made pistols (Katta) came there. Immediately, Jagdish fired gun shot which injured his chest. Later on, all the three fired gun shots whereupon bullet pallets injured him. He fell down. Jagdish has witnessed the incident. Later on, his brother Prahlad (PW-6 in Sessions Case No.153/2001) and other villagers have brought him here. On the basis of this information, Parcha Bayan (Ex.P-12) was recorded by ASI, Hansaraj (PW-8) and a formal FIR No.289/2001 (Ex.P-15) was registered. After due investigation, chargesheet was submitted in two phases as stated hereinabove. Prosecution examined 11 witnesses and 10 witnesses, in Sessions Cases No.153/2001 and 106/2002, respectively. Accused were examined u/s 313 Cr.P.C.. They stated that the evidence adduced by prosecution is wrong. They have been falsely implicated in the matter because a cross case was registered by them against complainant party. No oral evidence was adduced on behalf of the defence. After hearing both the parties, learned trial court decided the matter in two phases and passed the separate judgments, as stated hereinabove. 3. Learned counsel for the accused who are appellants in Cr. Appeal No.1501/2002 has submitted that despite of first offence, learned trial court has committed an error in denying the benefit of probation to the accused for offence u/s 324/34 IPC. No cogent reasons have been given by learned trial court for such refusal. As per provisions of Probation of Offenders Act, learned trial court was ought to give reasons for denying the benefit of probation. 4. Per contra, learned counsel for complainant Ratan Lal submitted that as per prosecution story, accused persons came on the spot armed with country made pistol (Katta) and all of them fired gut shots aiming the victim. Many pallets injuries have been detected by Medical Officer on the body of victim Ratan Lal. Use of lethal weapon itself manifest intention and knowledge of the culprits. A person who is equipped with lethal weapon like country made pistol (Katta) and uses it by firing gun shot, not in air but aiming the culprit, this fact itself is sufficient to prove that the culprits were having intention and knowledge of killing the victim. Therefore, they should have been convicted for the offence u/s 307 or 307/34 IPC. A person who is equipped with lethal weapon like country made pistol (Katta) and uses it by firing gun shot, not in air but aiming the culprit, this fact itself is sufficient to prove that the culprits were having intention and knowledge of killing the victim. Therefore, they should have been convicted for the offence u/s 307 or 307/34 IPC. Learned trial court has not considered this aspect at all in its findings. In support, he has placed reliance on Abdul Waheed v/s State of Uttar Pradesh, (2016) 1 SCC 583 . 5. Learned counsel for complainant Ratan Lal has further submitted that learned trial court has committed an error in extending the benefit of probation to accused Rasbihari. All accused were convicted for the offence u/s 324/34 IPC. Looking to the common gravity of offence, accused Rasbihari should have also been sentenced appropriately. 6. In rebuttal, learned counsel for accused submitted that as per prosecution story, gun shot injuries found on the victim were caused by pallets only. There is nothing on record as to what type of country made pistols were used by the accused. There are many types of pistols and guns which are used for different purposes. Unless the weapon used in the offence was recovered and ballistically examined, it cannot be gathered that the weapon used in the instant matter was certainly a lethal one. As per medical evidence available on record, the pallets were found in soft tissue level depth. None of the pallets has penetrated diaphragm or pericardium. It shows that the weapon used were not lethal one. Learned counsel further submitted that at the time of occurrence of the incident, Rasbihari was only 18 years of age. Learned trial court has rightly extended the benefit of probation to him and there are no cogent reasons for denying such benefit to him. 7. I have heard learned Public Prosecutor as well. 8. I have given thoughtful consideration to all the submissions made before me and gone through the material available on record. 9. On perusal of record, it reveals that in the instant matter, the weapon used for committing offence was not recovered or seized, at all, what to say of its examination by same ballistic expert. 8. I have given thoughtful consideration to all the submissions made before me and gone through the material available on record. 9. On perusal of record, it reveals that in the instant matter, the weapon used for committing offence was not recovered or seized, at all, what to say of its examination by same ballistic expert. As per injury report of the victim Ratan Lal which is Ex.P-11 in Sessions Case No. 153/2001 and Ex.P-4 in Sessions Case No. 106/2002), 14 gun shot injuries were on chest and abdomen – two on face i.e. lip and chin, one on right upper arm, one on right forearm, two on left upper arm, one on left forearm and two on left wrist which were of size 3-4 mm in size. As per x-ray report which is Ex.P-10 in Sessions Case No.153/2001 and Ex.P-4 in Sessions Case No.106/2002, these gun shot injuries were found to the depth of soft tissues level and tip of tooth was found missing but no other bony injury was found. As per opinion rendered by Dr. Brijesh Kumar Goyal (PW-2), except injury No.2, found on the lip of face, all the injuries were simple in nature and injury No.2 was dangerous and grievous. But in cross examination, Dr. Brijesh Kumar Goyal (PW-2) has stated that he did not opine the injuries to be fatal for life on the basis of single pallet injury. In his opinion, cumulative effect of all the injuries may be fatal for life. He cannot say how much old the tooth was broken. The injured was not examined by dental surgeon. He has further stated that in his opinion, these gun shot injuries were fired from a distance of about 200-300 yards. 10. From the evidence rendered by Dr. Brijesh Kumar, it reveals that no injury was found to be more deep then soft tissue level. As per statement of witnesses, the gun shot fire was made from a distance of about 30-40 feet whereas in the opinion of Dr. Brijesh Kumar (PW-2), the distance should be about 200-300 yards. 10. From the evidence rendered by Dr. Brijesh Kumar, it reveals that no injury was found to be more deep then soft tissue level. As per statement of witnesses, the gun shot fire was made from a distance of about 30-40 feet whereas in the opinion of Dr. Brijesh Kumar (PW-2), the distance should be about 200-300 yards. After examining and appreciating the evidence adduced by prosecution, in view of evidence that all the injuries were simple in nature and deep only upto soft tissue level and no surgeon who examined the internal injuries of the victim was examined by prosecution, learned trial court has given a finding that prosecution has failed to prove the offence u/s 307/34 IPC. I find nothing on record to differ from the finding given by learned trial court. In absence of sufficient medical evidence, prosecution has failed to prove that the injuries caused to the victim were fatal for life. 11. Apex Court has observed in para 15 in Abdul Waheed’s case (supra) as follows : “15. The appellant and the accused party were having enmity against the deceased Abbas Khan on account of civil suit and filing of contempt petition. The appellant and the accused party went to chhabutra of Abbas Khan armed with pistol, guns and lathis which shows the intention of the appellant to commit the murder. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, servers an artery and the injured man dies as a result, it may be reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death the offence is clearly murder. Having regard to the enmity and the weapon used, the court below rightly held that the appellant-accused was guilty of committing the murder of Abbas Khan. 12. In the above case, the gun shot was fired by a licensed gun. The gun was recovered. Having regard to the enmity and the weapon used, the court below rightly held that the appellant-accused was guilty of committing the murder of Abbas Khan. 12. In the above case, the gun shot was fired by a licensed gun. The gun was recovered. Being factually different, it cannot be presumed in the instant case that use of country made pistols contemplate the desired intention and knowledge, necessary for conviction under section 307, IPC. Section 6 of the Probation of Offenders Act, 1958 is as follows :- 13. Restrictions on imprisonment of offenders under twenty-one years of age-(1) When any person under twenty-one years of age is found guilty of having committed an offences punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.” 14. It is clear that when any person under 21 years of age is found guilty of committing an offence which is not punishable with life imprisonment, it is mandatory for the court to release him on probation and if the court passes any sentence of imprisonment to such offender, it shall have to record the reasons for doing so. Learned trial court has found that at the time of incident, accused Rasbihari was of only 18 years, therefore learned trial court has committed no error in extending the benefit of probation to him. 15. So far as other accused are concerned, they were not below 21 years at the time of incident. Learned trial court has found that at the time of incident, accused Rasbihari was of only 18 years, therefore learned trial court has committed no error in extending the benefit of probation to him. 15. So far as other accused are concerned, they were not below 21 years at the time of incident. Therefore, considering all the facts and circumstances of particular case, and the way in which incident took place and the number of injuries inflicted on the victim, learned trial court has rightly denied the benefit of probation to them. 16. However, those accused were in or around their thirties at the time of incident therefore, after lapse of about 15 years, it would not be appropriate to ask them to go and complete the sentence. Moreover, out of them Jagdish has passed about 9 month, Rakesh about 2 months and 7 days and Bhojraj 2 months and 9 days in police/judicial custody during trial/appeal/revision. Therefore, sentence passed against these three accused requires modification. However, looking to the pain and sorrow suffered by victim, he deserves an appropriate compensation. 17. In the result, Revisions No.862/2003 and 199/2003 are dismissed. Appeal No.1501/2002 is partly allowed. The sentence passed against the appellants Jagdish, Rakesh and Bhojraj is modified and it is ordered that each of them is sentenced for a period they have passed in police/ judicial custody during trial and appeal. Rest of the sentence passed remains unchanged. 18. It is further directed that out of fine realised from the appellant Jagdish, Bhojraj and Rakesh, Rs.8000/- be paid to the victim Jagdish as compensation.