JUDGMENT : 1. By way of the instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 28.01.1992 passed by the VI-Additional Sessions Judge, Fatehpur, in Sessions Trial No. 278 of 1990 State of U.P. vs. Kalika Singh and Another, arising out of Case Crime No. 153 of 1989, under Section 307 I.P.C. Police Station-Husainganj, District-Fatehpur whereby the appellant has been sentenced to undergo life imprisonment. 2. Heard Sri Harish Chand Tiwari, learned amicus curiae for the appellant, Shri Krishna Pahal, learned Additional Advocate General assisted by Sri Bhanu Pratap Singh, Sri Ajay Kumar Singh, Sri Jitendra Kumar and Sri Nafis Ahmed, learned brief holders for the State and perused the record of this appeal. 3. Facts germane as reflected from perusal of the record and particularly from the first information report reveal that the informant Ramanuj son of Ram Singh, resident of village Jamrawan, Police Station Husainganj, District Fatehpur, lodged the written report at Police Station Husainganj, on 16.09.1989 at 9:35 pm to the effect that the informant was sitting at his doors when his grand-father Kalika and his son Anant Maan Singh @ Pappu arrived on the spot and asked him whether he went on the roof whereupon the informant said that he never went on the roof. At this, the assailants were agitated and at the exhortation of Kalika, Pappu opened fire on the informant with intent to kill him which hit him on his skull, thus causing injury. The incident was witnessed by Rajkali, sister-in-law of the the informant, Gomti Devi wife of Ram Singh, mother of the informant and other villagers. The time of the incident was described as 8:00 pm. It was requested that report be lodged and appropriate action be taken. This written report was scribed by Hardev Singh and the same is Ext. Ka-1. 4. Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No. 153 of 1989 under Section 307 I.P.C. at Police Station Husainpur, District Fatehpur, on 16.09.1989 at 9:35 pm. Check FIR is Ext. Ka-4. On the basis of entries so made in the check F.I.R. a case was registered against the accused-appellant in the relevant G.D. at aforesaid case crime number at Police Station Husainganj under aforesaid section of I.P.C. against accused-appellant. 5. Check FIR is Ext. Ka-4. On the basis of entries so made in the check F.I.R. a case was registered against the accused-appellant in the relevant G.D. at aforesaid case crime number at Police Station Husainganj under aforesaid section of I.P.C. against accused-appellant. 5. Record reflects that the informant/injured Ramanuj was medically examined at District Hospital Fatehpur by Dr. Harish Chandra Sachan, PW-4 on 16.09.1989 at 11:20 pm who found the following injury:- “Multiple lacerated wound with abraded collar size variable from 0.2 to 0.4 cm x 0.2 to 0.3 cm, margins inverted. Blood oozing present on right side of head, neck front of right side of shoulder and right side of upper part of chest in an area of 30 cm x 18 cm. No blackening, tattooing or scorching was present. X-ray was advised.” 6. In the opinion of the doctor, injury might have been caused by some firearm. Injury report is Ext. Ka-6. 7. The investigation ensued and the same was entrusted to Israr Ahmad Khan, Investigating Officer PW-3 who after lodging of the first information report took note of the contents of the first information report and the relevant general diary entry and proceeded to the spot and prepared site plan and after recording statement of the witnesses filed charge-sheet against the accused-appellant under Section 307 I.P.C. which is Ext. Ka-3. 8. Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of VII-Additional Sessions Judge, Fatehpur who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charge under Section 307/34 I.P.C. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 9. In furtherance of the proceedings the prosecution produced in all 4 witnesses. A brief sketch of witnesses is ut-infra:- “Ramanuj PW-1 is the injured/informant who lodged the first information report. Gomti Devi PW-2 is eyewitness of the occurrence. Israr Ahmad Khan PW-3, the Investigating Officer, has detailed the various steps, he took in completing the investigation and has stated to have submitted charge-sheet against the accused-appellant. Dr. Harish Chandra Sachan PW-4 has examined the injured informant. Except as above, no other evidence was adduced by the prosecution.” 10. Therefore, evidence for the prosecution was closed. Israr Ahmad Khan PW-3, the Investigating Officer, has detailed the various steps, he took in completing the investigation and has stated to have submitted charge-sheet against the accused-appellant. Dr. Harish Chandra Sachan PW-4 has examined the injured informant. Except as above, no other evidence was adduced by the prosecution.” 10. Therefore, evidence for the prosecution was closed. The statement of the accused- appellant was recorded under Section 313 Cr.P.C. wherein he has claimed his innocence and stated that he has been falsely implicated in this case on account of enmity and the fact that two years prior to the incident, there was no interaction between the informant side and the accused appellant, therefore, false case has been thrusted upon the accused-appellant. 11. No evidence, whatsoever, was adduced by the defence. 12. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 307 I.P.C. and sentenced the accused-appellant to undergo life imprisonment vide judgment impugned in the instant appeal. 13. Consequently, this appeal. 14. Learned amicus curiae for the appellant has succinctly submitted that in this case, the very allegations levelled against the accused-appellant are vague and on account of enmity, false case has been cooked up against him. Assuming it to be that any such incident took place even then origin of the incident has been concealed by the informant himself. It so happened that the informant himself was preparing some gun powder which in process got exploded, thus causing injury to him. The cause shown for firing is not sufficient and it is trivial and petty one. 15. It has been further contended that admittedly, there was no prior motive for committing the offence. If any incident like the present one suggested by the informant took place, if assumed to be correct even then the case does not fall within periphery of Section 307 I.P.C. for the reason that intent to kill was missing. In case intent to kill is missing then it being a vital ingredient of Section 307 I.P.C. no conviction can be recorded under Section 307 I.P.C. may be that considering the nature of injury caused to the injured, that too is dubious whether it was caused by use of any gun, pistol etc. In case intent to kill is missing then it being a vital ingredient of Section 307 I.P.C. no conviction can be recorded under Section 307 I.P.C. may be that considering the nature of injury caused to the injured, that too is dubious whether it was caused by use of any gun, pistol etc. or any other means then simplicitor, it is a case of voluntary causing hurt by some weapon. That way, the case of the accused-appellant shall be covered under Section 324 I.P.C. instead of Section 307 I.P.C. The trial court wrongly recorded finding of conviction under Section 307 I.P.C. and imposed harsh punishment on the accused-appellant which is not justified under facts and circumstances of the case. 16. It has been lastly added that the accused-appellant does not bear any criminal antecedent and he promises that he will not repeat the same offence in future. Therefore, his case may be considered leniently. 17. While retorting to the aforesaid submissions, learned A.A.G. has contended that testimony of the injured/informant Ramajun PW-1 is flawless on the point of causing injury on the vital part of his body namely skull, head and chest etc. and injury was found to be scattered in an area of 30 cm x 18 cm. which very much reflects intent to cause injury to the injured, may be weapon and pellets faulted because of its own demerit but intent cannot be minimized as it was one to cause death. Had the pellets not faulted and not scattered, it would have aimed perfectly with precise execution, the result is obvious death. Merely because injury caused to the injured was not found to be grave putting the injured in minimum dangerous position but that alone would not minimize by any stretch of imagination the degree of intent which is as obvious as to cause death. The trial Judge not only took note of testimony of the injured/informant PW-1 but also took note of surrounding facts and prevailing circumstances of the case and rightly convicted the accused-appellant under Section 307 I.P.C. and imposed just sentence upon him. 18. We have also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 307 I.P.C. beyond reasonable doubt and has sentenced condignly? 19. 18. We have also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 307 I.P.C. beyond reasonable doubt and has sentenced condignly? 19. In this case, as per description contained in the first information report, the incident was allegedly caused around 8:00 pm when the injured/informant was sitting in front of his doors. It was stated that two accused arrived on the spot and started conversation on the spot. It so happened that the accused-appellant opened fire upon the injured/informant which as per injury report Ext. Ka-6 was in the shape of abraded collar size variable from 0.2 to 0.4 cm x 0.2 to 0.3 cm, margins inverted. Blood oozing present on right side of head, neck front of right side of shoulder and right side of upper part of chest in an area of 30 cm x 18 cm. No blackening, tattooing or scorching was seen. 20. In view of the aforesaid injury, testimony of Dr. Harish Chandra Sachan PW-4 becomes relevant. He has testified in his testimony that he medically examined the injured/informant Ramanuj on 16.09.1989 at 11:20 pm and found aforesaid signs of injury. There was no blackening, tattooing or scorching present. It means that the weapon of assault was used at some distance from the injured/informant. However, the doctor has opined that injury might have been caused by use of firearm. He has proved injury report Ext. Ka 6. He was cross-examined wherein he has confirmed to fact that firearm was used from 5-6 paces away from the injured/informant. A suggestion was made that injury might have been caused by fall, however, that was refused by the doctor. 21. In this view of the matter, obviously injury caused to the injured/informant by use of firearm cannot be doubted at this juncture. Now, point relevant for consideration is what was the intent to commit crime in question whether to cause death or not to cause death. 22. We have perused testimony of the injured/informant PW-1 who has categorically stated that there was no previous enmity and no interaction between both the sides. Now, point relevant for consideration is what was the intent to commit crime in question whether to cause death or not to cause death. 22. We have perused testimony of the injured/informant PW-1 who has categorically stated that there was no previous enmity and no interaction between both the sides. As per his testimony, the incident took place, all of a sudden, on account of hot conversation between both the sides, therefore, it cannot be branded to be a well designed crime committed by the accused-appellant. Consequently, very much possibility to cause injury to the injured- informant by the accused-appellant with intention to commit murder stands ruled out under prevailing facts and circumstances of the case. 23. We have no hesitation in observing that though Dr. Harish Chandra Sachan PW-4 had advised x-ray examination of the injury sustained by the injured/informant, however, no supplementary report in the shape of any x-ray examination has been brought before us. It appears that the same was not produced before the trial court as well. Therefore, nature of injury caused cannot be properly adjudged to the magnitude to cause death nor any suggestion has been made by the doctor witness that injury caused to the injured/informant would, in normal parlance, might have caused death. 24. That way, intention to commit murder is found to be missing which finding recorded by the trial court is on its face not based on any material on record. That way, we after careful consideration of the entirety of the case and primarily considering the nature of the injury caused and the statement of the injured/informant Ramanuj PW-1 and the attendant facts and circumstances of the case, are of the considered opinion that the conviction recorded by the trial Court under Section 307 I.P.C. is not justified and cannot be sustained as such. However, the factum of injury being caused by use of firearm and the nature of injury as described in the medical examination report of the injured/informant, Ext. Ka-6, indicates that the case squarely falls within ambit of Section 324 I.P.C. instead of under Section 307 I.P.C. Consequently, the conviction recorded by the trial court under Section 307 I.P.C. is liable to be altered under Section 324 I.P.C. Accordingly, the conviction recorded under Section 307 I.P.C. is altered and modified to one under Section 324 I.P.C. 25. Ka-6, indicates that the case squarely falls within ambit of Section 324 I.P.C. instead of under Section 307 I.P.C. Consequently, the conviction recorded by the trial court under Section 307 I.P.C. is liable to be altered under Section 324 I.P.C. Accordingly, the conviction recorded under Section 307 I.P.C. is altered and modified to one under Section 324 I.P.C. 25. Insofar as the point of sentencing the accused-appellant under Section 324 I.P.C. is concerned, learned amicus curiae for the appellant has urged that the accused-appellant being a young man and he does not bear criminal history, therefore, his case may be considered leniently and he should be punished with the minimum sentence prescribed under Section 324 I.P.C. and fine alone may be imposed as sentence as that would better serve the ends of justice under facts and circumstances of the case. 26. While opposing the aforesaid plea of leniency on sentencing the accused-appellant, learned A.A.G. has brought to the notice of the Court a decision of Hon'ble Apex Court in the case of Ved Prakash vs. State of Haryana, 1996 SCC (Crl.) 1182 whereby he has claimed that on the point of sentencing under similar circumstances when the case was found to have been proved under Section 324 I.P.C. Hon'ble Apex Court was of the view that sentence of three years would serve the ends of justice. 27. We upon careful consideration of the entirety of the case and considering the nature of the offence committed and proved, hereby direct that the accused-appellant be sentenced to three years rigorous imprisonment under Section 324 I.P.C. Accordingly, sentence awarded by the trial court is modified to that extent as aforesaid. 28. Consequently, the instant appeal succeeds, partly in aforesaid terms and we order accordingly. 29. In this case, appellant Anant Singh @ Pappu is on bail. His bail bonds and sureties are cancelled. He shall be taken into custody forthwith for serving out his remaining sentence imposed upon him. 30. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.