JUDGMENT : 1. Heard Shri Jai Pal Singh, learned counsel for the appellants as well as Shri Rajesh Kumar, learned Additional Government Advocate for the State and perused the record. 2. The instant appeal has been preferred by the appellant nos.1 and 2 namely Tahir and Ameen respectively against the judgment and order dated 22.01.2008 passed by the Additional Sessions Judge, Room No.2, Barabanki in Sessions Trial No.36 of 2004 (State vs. Tahir And another) arising out of Case Crime No.8 of 2003, under Section 307 I.P.C., Police Station Ram Nagar, District Barabanki, whereby the appellants were convicted for the offence under Section 307 read with Section 34 I.P.C. and were sentenced to undergo for five years rigorous imprisonment along with fine of Rs.2000/- each with default clause. 3. The prosecution case as is emerging from the record is to the tune that on 29.01.2003 an F.I.R. was lodged by the informant Indal Yadav against the named accused persons Tahir and Ameen stating therein that on 29.01.2003 at about 05:00pm. on the basis of prior enmity, the appellant Tahir after taking gun from his brother Ameen has fired gunshots towards the informant/injured which had hit him at left shoulder. On the basis of this, F.I.R. was lodged at 22:30 hours at Police Ram Nagar, District Barabanki and the investigation was entrusted to the investigating officer. 4. The injured Indal Yadav was medically examined on 30.01.2003 at 01:30am. by Dr. Sanjay Kumar under police custody and one lacerated wound 1.5 x 1.1 cm was found on his left shoulder, which was muscle deep and was also having blackening around it. The wound was found bleeding and the injured was advised X-ray. The wound was kept under observation and was opined to have been caused by firearm. Duration of injury was noted fresh. 5. The investigating officer after recording the statement of the prosecution witnesses including that of injured and after preparing site plan etc. submitted charge sheet against the accused persons under Section 307 I.P.C. 6. After commitment of the case, charges against the appellants were also framed under Section 307 I.P.C. to which they denied and claimed trial. 7. The prosecution in order to prove its case before the trial court has produced P.W.1 Indal Kumar Yadav (injured), P.W.-2 Nirmal Yadav, P.W.-3 Tasauwwar, P.W.-4 Samgam Lal, P.W.-5 Girdhari, P.W.-6 Dr. After commitment of the case, charges against the appellants were also framed under Section 307 I.P.C. to which they denied and claimed trial. 7. The prosecution in order to prove its case before the trial court has produced P.W.1 Indal Kumar Yadav (injured), P.W.-2 Nirmal Yadav, P.W.-3 Tasauwwar, P.W.-4 Samgam Lal, P.W.-5 Girdhari, P.W.-6 Dr. Sanjay Kumar, P.W.-7 Constable Ram Chandra Arya and P.W.-8 Investigating officer Suresh Chandra Sen and has also relied documentary evidence e.g. tehreer exhibit Ka-1, seizure memo of bloodstained and simple soil exhibit Ka-2, injury report exhibit Ka-3, chik F.I.R. exhibit Ka-4, G.D. Kayami exhibit Ka-5, Site Plant exhibit Ka-6 and charge-sheet exhibit Ka-7. 8. After conclusion of the evidence of the prosecution statement of the accused persons was recorded under Section 313 Cr.P.C. , wherein they denied the evidence produced by the prosecution and contended that they have not committed any offence. 9. Learned trial court after appreciating the evidence available on record found the case of the prosecution proved beyond reasonable doubt and convicted the appellants for committing offence under Section 307/34 I.P.C. and sentenced them in the manner as shown in the second paragraph of this judgement. 10. Learned counsel for the appellants while drawing attention of this Court towards the judgement and order of the trial court submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellants for the offence, which has never been committed by them. 11. It is further submitted that doctor namely P.W.-6 Sanjay Kumar, who has examined the injured Indal Yadav, found a superficial injury, which was not dangerous to the life on the person of injured and on the basis of that conviction under Section 307 I.P.C. could not be done. It is also submitted that the manner in which the incident is shown to have occurred may not result in blackening of the wound as gunshot fire is stated by the injured Indal Yadav to have been fired with the distance of 10-15 spaces and therefore, by his contention the blackening could not be found around the wound and it appears that the injured has sustained injuries in some other incident and on the basis of prior enmity has falsely implicated the appellants. 12. 12. While drawing attention of this Court towards the criminal history of the injured Indal Yadav, which is comprising of six cases of various nature, it is submitted that the injured/victim was a dreaded criminal and might have been injured by any of his opponent. It is also submitted that there are material contradictions emerging in the testimony of the prosecution witnesses, who are claiming to have seen the incident and the benefit of such contradictions should have been granted to the appellants. 13. It is also submitted that there are material contradictions in the ocular and medical evidence and the prosecution has miserably failed to prove its case beyond reasonable doubt and the appeal filed by the appellants be allowed and the impugned judgement and order passed by the trial court be set aside. It is also submitted that the gun, by which the gunshot is stated to have been fired, is shown as licensed gun and the investigating officer has not bothered to recover the same so as to assess that the gunshot has actually been fired by this gun. 14. Learned counsel for the appellants in support of his submissions has relied on SK. Suleman and others Vs. State of Jharkhand ; 2006 (3) AIR Jhar R 415 :: (2006) 3 EASTCRIC 411.and Ali Mohmad Siddique Baloch Vs. State of Gujarat 2007 (2) GUJLH 674. 15. It has been next contended that even if the story as set up by the prosecution stands established the injuries found on the person of the complainant were simple in nature and in the absence of any intention to commit the murder, no offence under Section 307 I.P.C., could be made out and the accused could only be convicted under Section 324 or 323I.P.C. 16. Learned A.G.A. for the State submits that the trial court has committed no error in convicting the appellants as it was proved before the trial court that one of the appellant namely Tahir has fired gunshot by taking licensed gun from the hand of Ameeen and the oral evidence is corroborated by medical evidence as firearm injury has been found on the person of the injured/victim Indal Yadav, thus the appeal preferred by the appellants is bound to be dismissed. 17. 17. Having heard learned counsel for the parties and having considered the evidence available on record, it is evident that F.I.R. of the case has been lodged by the informant/injured himself and keeping in view all the facts and circumstances, the same has been lodged with promptness. The case of the prosecution as is evident from the evidence of P.W.-1 Indal Yadav (injured) is that when injured Indal Yadav was passing in front of the house of appellants, appellant Ameen said that see enemy is going on which appellant Tahir had taken the gun of Tahir and fired at the injured Indal. The gunshot is stated to be fired by Tahir, while saying that let us finish the enemy. So it was not the accused appellant Ameen, who had given any exhortation to Tahir, rather it was Tahir himself who had stated that let us finish the injured and it is only he who had fired gunshot towards the injured Indal Yadav. P.W.-2 Nirmal Yadav has stated that after seeing injured Indal Yadav, accused appellant Ameen had uttered that enemy is coming and let us finish him, on which accused appellant Tahir had take the gun of accused Ameen and ran after the injured and fired at him. Conjoint reading of the evidence of these two witnesses well reveal that the incident had occurred in a spur of moment and there was no occasion or opportunity for the appellants to form any plan or design and prior meeting of mind was not possible as it was due to the coincidence the injured was passing in front of the house of appellants, of which the appellants were not having any prior information. Admittedly it was appellant Tahir, who had taken the gun from the appellant Ameen and had fired at injured Indal Yadav. Thus it is is evident that the element of 'common intention' is completely lacking in this case and there was no overt act by appellant which may show that the appellant Ameen was having common intention to commit the offence with appellant Tahir. Thus it is is evident that the element of 'common intention' is completely lacking in this case and there was no overt act by appellant which may show that the appellant Ameen was having common intention to commit the offence with appellant Tahir. Thus the conviction of appellant Ameen with the aid of Section 34 I.P.C. is erroneous, in absence of any common intention and thus patent illegality appears to have been committed by the trial court in convicting the appellant Ameen with the help of Section 34 I.P.C. Thus the conviction of appellant Ameen under Section 307/34 I.P.C. cannot stand the test of law and therefore he is entitled to be acquitted from the charges of Section 307/34 I.P.C. 18. So far as the appellant Tahir is concerned both intact witnesses of prosecution P.W.-1 Indal Yadav and P.W.-2 Nirmal Yadav had stated that it was Tahir, who had fired gunshot with gun on Indal Yadav. P.W.-6 Dr. Sanjay had stated that this injury (blackening around wound) may not come from the distance from which the fire is stated to have been made. It is to be recalled that testimony of the witnesses is to be read in totality and if the evidence of prosecution eye witness is trustworthy the same can be accepted. Minor contradictions are bound to emerge in the evidence of witnesses. Thus the duty of the court is to see the incident is broad spectrum. Dr, Sanjay had clearly stated that the injury sustained by the injured may be caused by firearm, thus even if there is no X-ray report or blackening was found around the wound, the same may not brand the evidence of injured Indal Yadav as untruthful. 19. The Hon'ble Supreme Court in Thaman Kumar Vs. State of Union Territory of Chandigarh. [ (2003) 6 SCC 380 has opined as under: "The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony." 20. Thus I do not find any force in the submission that there is material contradiction in ocular and medical evidence. 21. The question to be determined now in this case is whether the offence under Section 307 I.P.C. is made out against appellant - Tahir or not? 22. The essential ingredients for an offence to be covered under Section 307 I.P.C. are as follows : 1) that death of a human being was attempted; 2) that such death was attempted to be caused by, or for consequence of the act of the accused; 3) that such act was done with the intention of causing death; or that it was done with intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all human probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 23. To justify a conviction under this Section, 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 deduced from other circumstances and may even in some cases be ascertained without any reference at all to actual wounds. Even if the injury was on the vital part of the body, but it is simple in nature, then the offence cannot be said to be covered under Section 307 IPC. It has been held by this High Court in case Kalloo & Another vs. State 1993 (1) Crimes 397 that when the gun shot injuries on the person of injured were found simple in nature, though were on the vital part of the body, but the doctor opined them neither grievous nor dangerous, the offence falls under Section 324 and not under Section 307 I.P.C. 24. The Apex Court in case Tukaram Gundu Naik vs. State of Maharashtra 1994 Cri. L.J. 224 wherein the injury was on the elbow joint and incised wound on the epigastric region, but were simple in nature, observed as under : ".......... Further, the doctor's evidence would show that none of the vital organs was injured. Under these circumstances, a doubt arises whether the accused intended to commit murder and thus made an attempt. In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under Section 308 I.P.C. Section 308 I.P.C. lays down that such an offence is punishable with imprisonment which may extend to three years or with fine or with both and if hurt is caused, the assailant can be punished with imprisonment of either description which may extend to seven years or with fine or with both." 25. In another case Rohtas vs. State of U.P. 2000 Cri. L.J. 89 wherein the accused had caused gun shot injuries resulting into simple injury on the body of the victim, the court observed as under : "......... In another case Rohtas vs. State of U.P. 2000 Cri. L.J. 89 wherein the accused had caused gun shot injuries resulting into simple injury on the body of the victim, the court observed as under : "......... The evidence of motive is no doubt there but considering that only a single shot was fired and that the fire only resulted in an entry wound with one pellet which fell down from it and five pellets which entered in the body but did not go deep enough to damage the spinal cord nor injured any other internal organs of the body, as such, it cannot be said that the act was done with an intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of culpable homicide amounting or not amounting to murder. So it cannot be said that the offence under Section 307 IPC or even 308 IPC has been made out....." 26. The Apex Court in titled as Rattan Singh vs. State of M.P. and another 2010 (1) RCR (Criminal) 927 while placing reliance on the judgment delivered in case Sarju Prasad vs. State of Bihar; AIR 1965 SC 843 observed as under :- "6. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 I.P.C. cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt. This position was highlighted in State of Maharashtra v. Balram Bama Patil and others (1983) 2 SCC 28 ), Girija Shanaker v. State of Uttar Pradesh, 2004 (1) RCR (Criminal) 839 : 2004 (2) Apex Criminal 411 : ( 2004 (3) SCC 793 ), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of M.P. v. Saleem @ Chamaru and Anr. 2005 (3) R.C.R. (Criminal) 749 : 2005 (2) Apex Criminal 575 : ( 2005 (5) SCC 554 ), and State of Madhya Pradesh v. Imrat and Anr. 2008 (11) SCC 523 . In Sarju Prasad v. State of Bihar ( AIR 1965 SC 843 ) it was observed in para 6 that the mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307 I.P.C. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 I.P.C. The determinative question is intention or knowledge, as the case may be, and not nature of the injury." 27. From the bare reading of the aforesaid law reports it will emerge that the determinative facts to decide the nature of the offence of Section 307 I.P.C. is the intention or the knowledge to commit the murder and not the nature of the injuries. In the instant case, the facts and circumstances speak for themselves that the accused had no such intention or requisite knowledge that by causing such injury, if death is caused, he would be guilty of murder. The accused persons never knew that the complainant party would arrive at the place of the incident. No serious motive was either available to accused persons to commit the murder of the injured. The accused persons did not cause any other injury to injured Indal Yadav and felt satisfied by causing muscle deep simple injury to him. The occurrence took place in the evening i.e. at about 5.00p.m. The witnesses themselves admit that the injury was caused from a distance of 10-15 spaces and admittedly resulted in simple injury. Had there been an intention on the part of the accused persons to cause fatal injury to the injured, then he would have attacked the injured from a very close range and he would not have returned after causing only one simple injury. Had there been an intention on the part of the accused persons to cause fatal injury to the injured, then he would have attacked the injured from a very close range and he would not have returned after causing only one simple injury. As such, it would not be appropriate to hold that the accused Tahir had fired a shot at the injured Indal Yadav with an intention to cause such injury which may be sufficient to cause death in the ordinary course of nature. 28. It is observed in the case of Bhagwan Din and others v. State; AIR 1967 Allahabad 580 as under :- "13. It is, therefore, clear that the mere fact that a gun has been used by an accused person for causing injuries to the complainant will not necessarily bring the case under Section 307 of the Indian Penal Code. There can be no presumption that the accused intended to cause the death of the complainant merely because he used a firearm to cause him hurt. 14. The intention of the accused person 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 of the nature which was sufficient in the ordinary course of nature to cause death or was so imminently dangerous that it could cause death, had further to establish the intention or knowledge of the accused as contemplated in Section 307 I. P. C. That in effect was the view taken by one of us in the case of Hakim Singh v. State. 1965 All LJ 282 when it was held that mere use of a country made pistol to shoot al a non-vital part of the body from a close range will not make out an offence under Section 307 I. P. C. In the ease of Badshah Singh v. State, AIR 1958 All 677 a learned single Judge of this Court reiterated the law on the subject as follows: "For liability under Section 307 the prosecution has to prove the following facts; (1) that the accused did an act and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder". The learned Judge further observed that "If hurt is caused by such act. the offender becomes liable to transportation for life, otherwise the maximum term of imprisonment prescribed is 10 years It would thus appear that the section itself does not take into consideration the effect of the act of the accused as a measure of sentence to be imposed upon him" 15. We respectfully agree with the observations mentioned above It is well established that if the intention or necessary knowledge to cause death was there, it is immaterial whether or not any hurt has been caused to the victim, and the accused can be held liable for an offence under Section 307 I. P. C. even though no hurt was caused. 19. The nature of burden of proof that lies on the prosecution was considered in the case of Sarju Prasad v. State of Bihar. AIR 1965 SC 843 . It was held by the Supreme Court that where the accused person caused an injury to the complainant with a knife in a vital region but no vital organ was cut the act of the accused person would not by itself be sufficient to take his case out of the purview of Section 307 I. P. C. but in order to bring the offence home to the accused the prosecution must establish that his intention or knowledge was of one of the three kinds as mentioned in Section 300 I. P. C. It was further held that the state of mind of the accused had to be inferred from the surrounding circumstances, including motive which would be a relevant circumstance. 20. 20. From what has been stated above it is abundantly clear that the mere circumstance that a knife had been used as a weapon of attack on vital part of the body (as in Sarju Prasad's case, AIR 1965 SC 843 ) or a firearm was used to cause injuries to the victim (vide Section 324 I. P. C.) would not be sufficient to establish that the accused had committed an offence punishable under Section 307 I. P. C. Further evidence has to be led by the prosecution to establish the intention of the accused to cause death or his knowledge as envisaged under Section 300 I. P. C. The burden of proof is on the prosecution and not on the accused. 21. In all criminal trials, for all offences punishable under the Indian Penal Code the burden of proof always lies on the prosecution to bring home the charge to the accused person. It may be that certain circumstances brought out by the defence may make the prosecution case doubtful. Even then that will be a case where the evidence read as a whole will reveal that the prosecution had failed to prove its case against the accused person beyond reasonable doubt" 29. Thus having regard to the facts and law placed above in the considered opinion of this Court, the offence committed by appellant Tahir may not travel beyond 324 I.P.C. and he is liable to be convicted only under Section 324 I.P.C. 30. In the result, this appeal is partly allowed, the impugned judgment is set aside and the accused Ameen is acquitted of the charges framed under Section 307/34 I.P.C. Appellant Tahir is also acquitted of the charges under Section 307/34 I.P.C., however, he is convicted for committing offence under Section 324 I.P.C. The sureties of the appellant -Ameen are hereby discharged of their liability. 31. At this juncture, learned counsel for the appellant submits that appellant -Tahir is not a previous convict and the incident has occurred in the spur of moment without there being premeditation and injured Indal Yadav also died during the pendency of appeal, thus appellant -Tahir be granted benefit of First Offenders Act and he be released on probation of good conduct. 32. Perusal of record would reveal that only one injury of simple nature has been found on the person of the injured Indal Yadav. 32. Perusal of record would reveal that only one injury of simple nature has been found on the person of the injured Indal Yadav. The appellant Tahir is not a previous convict. The incident had occurred in the spur of moment without there being premeditation. Injured Indal Yadav was having criminal history of many cases and it has come in the judgement of the trial court that he had died. No untoward incident is reported between the parties. 33. Thus, keeping in view all the facts and circumstances of the case, I am of the considered opinion that the benefit of Probation of First Offenders Act, 1958 could be extended to the instant appellant-Tahir 34. Resultantly, appellant -Tahir, who has been convicted for committing offence under Section 324 I.P.C., is granted the benefit of Section 4 of the Probation of First Offenders Act and he instead of immediately sentenced for imprisonment, keeping in view the peculiar facts and circumstances of the case, is released on probation of good conduct for 02 years. Appellant -Tahir shall file a personal bond of Rs. 50,000/-and two sureties of the like nature and also an undertaking before the trial court stating that he shall keep peace in the society and shall not commit any such offence in future. 35. As provided under Section 5 of the Act, the appellant-Tahir shall also pay a compensation of Rs.20,000/-(rupees twenty thousand) to the victim/injured Indal Yadav (if he is alive) or to his legal heirs, as the case may be, within two months from today in equal proportions. 36. In case of breach of any of the said condition, appellant will subject himself to undergo the sentence. 37. Let the copy of this order as well as the lower court record be transmitted to the concerned Trial Court, forthwith for necessary compliance.