# Dharmeshwar & Anr v. State of U.P

- **Citation:** (2025) 8 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-19
- **Case number:** Criminal Appeal No. 216 of 2013
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmeshwar-anr-v-state-of-u-p-53700
- **Pages:** 13

## Headnote

the appellants under Section 307 I.P.C. for firing
a single gunshot causing injury on the right leg
of the complainant in the background of a
family land dispute, and the question whether,
in absence of proof of intention to cause death,
the conviction could be sustained under Section
307 I.P.C. or was liable to be altered to Section
324 I.P.C.; further, whether the appellants,
having no criminal antecedents and being first
offenders, were entitled to the benefit of
probation under Sections 3 and 4 of the
Probation of Offenders Act, 1958.

Headnotes
Criminal Law - Criminal Procedure Code,
1973 - SS. 307,361 - Attempt to Murder -
Intention to kill must be proved - Single
gunshot in leg - No evidence who fired -
offence under S. 307 I.P.C. not made out -
conviction converted to S. 324 I.P.C. -
Probation of Offenders Act, 1958 - SS. 3 &
4 - Benefit of first offender - Convicts
having no previous criminal history -
Dispute regarding land between close
family members - Settlement arrived at -
Entitled to benefit of probation - Duty of
Court to record special reasons for not
granting benefit of probation - Omission
by Trial Court - Improper.
Held: It cannot be said that the gun shot was
made with the intention to kill - one gunshot
made in the leg cannot constitute offence under
Section 307 I.P.C. - Conviction under Section
307 I.P.C. is not sustainable and is liable to be
converted under Section 324 I.P.C. - Appellants
are first offenders - dispute was purely personal
46 INDIAN LAW REPORTS ALLAHABAD SERIES
between close family members - No purpose
would be served by sending the appellants to
jail - they are entitled for benefit of the First
Offender - Conviction under Section 307 I.P.C.
converted to Section 324 I.P.C. - sentence
reduced to one year - Appellants released on
probation
of
good
conduct.
(Para
17,19,21,24,27,28,29) (E-7)

Case Law Cited
State of Maharashtra v. Balram Balma Patil, AIR
1983 SC 305; Kundan Singh v. State of
Punjab, AIR 1982 SC 2013; Merambhai
Punjabhai Khachar v. State of Gujarat, AIR
1996 SC 3236; Ramesh v. State of U.P., AIR
1992 SC 664; Neelam Bahal v. State of
Uttarakhand, (2010) 2 SCC 229; Mohd.
Hashim v. State of U.P., (2017) 2 SCC 1998;
Smt. Devki v. State of Haryana, (1979) 3 SCC
760;
State
of
Maharashtra
v.
Natwarlal
Damodardas Soni, (1980) 4 SCC 669; Dalbir
Singh v. State of Haryana, (2000) 5 SCC 82;
Devi Singh & Anr. v. State of U.P., Cr. Appeal
No. 220 of 1995.

List of Acts
Code of Criminal Procedure, 1973; Indian
Penal
Code,
1860;
Code
of
Criminal
Procedure, 1973; Probation of Offenders Act,

## Text

_Characters 0–39,947 of 45,561. This is a partial read: ask again with offset=39947 for what follows._

8 All. Dharmeshwar & Anr. Vs. State of U.P.
45
regarding awarding of compensation to the
victim's legal heirs in case the challenge to
the order of the Trial Court is successfully
made.

With these observations, we order
accordingly the instant two Appeals are
admitted.

Issue Bailable Warrants of Rs.15,000/-
against the accused-respondents namely
Ashok
Singh,
Ramesh
Singh
and
Ramesh Yadav of Criminal Appeal U/S
372 CR.P.C. No.46 of 2025 and Sahaj
Ram Shukla, Lalit Kumar @ Kunnu,
and Vinod Kumar of Criminal Appeal
U/S 372 CR.P.C. No.52 of 2025 to be
served
through
the
Chief
Judicial
Magistrate, concerned. If they are
arrested or surrender before the court
concerned, they shall be enlarged on
bail, on their furnishing personal bonds
and two sureties each in the like
amount, on the undertaking that they
shall appear before this Court through
their counsel or in person on the next
date of listing.

The C.J.M., concerned shall ensure
that at the time of accepting bail bonds, an
authenticated copy of the Current address/
I.D. Proof of the appellants be taken on
record alongwith the photocopy of the bail
bonds.

List this matter on 18.09.2025.

The office shall intimate to the
C.J.M. concerned forthwith about this order
to ensure compliance.
----------
(2025) 8 ILRA 45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.08.2025

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 216 of 2013

Dharmeshwar & Anr. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
Pradeep Kumar Tripathi

Counsel for the Respondents:
Govt. Advocate, Arun Saxena

Issue for Consideration
Matter pertains to the legality of conviction of
the appellants under Section 307 I.P.C. for firing
a single gunshot causing injury on the right leg
of the complainant in the background of a
family land dispute, and the question whether,
in absence of proof of intention to cause death,
the conviction could be sustained under Section
307 I.P.C. or was liable to be altered to Section
324 I.P.C.; further, whether the appellants,
having no criminal antecedents and being first
offenders, were entitled to the benefit of
probation under Sections 3 and 4 of the
Probation of Offenders Act, 1958.

Headnotes
Criminal Law - Criminal Procedure Code,
1973 - SS. 307,361 - Attempt to Murder -
Intention to kill must be proved - Single
gunshot in leg - No evidence who fired -
offence under S. 307 I.P.C. not made out -
conviction converted to S. 324 I.P.C. -
Probation of Offenders Act, 1958 - SS. 3 &
4 - Benefit of first offender - Convicts
having no previous criminal history -
Dispute regarding land between close
family members - Settlement arrived at -
Entitled to benefit of probation - Duty of
Court to record special reasons for not
granting benefit of probation - Omission
by Trial Court - Improper.
Held: It cannot be said that the gun shot was
made with the intention to kill - one gunshot
made in the leg cannot constitute offence under
Section 307 I.P.C. - Conviction under Section
307 I.P.C. is not sustainable and is liable to be
converted under Section 324 I.P.C. - Appellants
are first offenders - dispute was purely personal
46 INDIAN LAW REPORTS ALLAHABAD SERIES
between close family members - No purpose
would be served by sending the appellants to
jail - they are entitled for benefit of the First
Offender - Conviction under Section 307 I.P.C.
converted to Section 324 I.P.C. - sentence
reduced to one year - Appellants released on
probation
of
good
conduct.
(Para
17,19,21,24,27,28,29) (E-7)

Case Law Cited
State of Maharashtra v. Balram Balma Patil, AIR
1983 SC 305; Kundan Singh v. State of
Punjab, AIR 1982 SC 2013; Merambhai
Punjabhai Khachar v. State of Gujarat, AIR
1996 SC 3236; Ramesh v. State of U.P., AIR
1992 SC 664; Neelam Bahal v. State of
Uttarakhand, (2010) 2 SCC 229; Mohd.
Hashim v. State of U.P., (2017) 2 SCC 1998;
Smt. Devki v. State of Haryana, (1979) 3 SCC
760;
State
of
Maharashtra
v.
Natwarlal
Damodardas Soni, (1980) 4 SCC 669; Dalbir
Singh v. State of Haryana, (2000) 5 SCC 82;
Devi Singh & Anr. v. State of U.P., Cr. Appeal
No. 220 of 1995.

List of Acts
Code of Criminal Procedure, 1973; Indian
Penal
Code,
1860;
Code
of
Criminal
Procedure, 1973; Probation of Offenders Act,
1958.

List of Keywords
First Offender; Probation; Intention to Kill;
Single Gun Shot; Land dispute; Simple hurt;
Conviction; Attempt to murder; One gun shot
without any evidence; Admonition or on
probation of good conduct.

Case Arising From
Judgment and order dated 12.02.2013 passed in
Session Trial No.561/2009; arising out of Case
Crime No.159/2006, under Section 307 of I.P.C.,
Police Station Misrikh, District Sitapur, by the
Additional District and Session Judge (Ex-cader)
Court No.2, Sitapur.

Appearances for Parties
Advs. for the Appellant:
Pradeep Kumar Tripathi.
Advs. for the Respondents:
Govt. Advocate, Sri Dharmendra Kumar,
Advocate holding brief of Sri Arun Saxena.
(Delivered by Hon'ble Rajnish Kumar, J.)

1.
Heard,
Sri
Pradeep
Kumar
Tripathi,learned counsel for the appellants,
learned
AGA
and
Sri
Dharmendra
Kumar,Advocate holding brief of Sri Arun
Saxena, learned counsel for the private
respondent.

2. The instant Criminal Appeal under
Section 374(2) of Criminal Procedure Code
(hereinafter referred as Cr.P.C.) has been
filed against the judgment and order dated
12.02.2013
passed
in
Session
Trial
No.561/2009;
State
of
U.P.
versus
Dharmeshwar and others by the Additional
District and Session Judge (Ex-cader)
Court No.2, Sitapur arising out of Case
Crime No.159/2006, under Section 307 of
Indian Penal Code (hereinafter referred as
I.P.C.), Police Station Misrikh, District
Sitapur, by means of which the appellants
Dharmeshwar and Babu Ram have been
convicted under Section 307 I.P.C. and
sentenced to rigourous imprisonment of
four years with fine of Rs.2000/- each and
in default of payment of fine, further two
months additional rigourous imprisonment.
It has further been provided that out of the
fine deposited by the appellants, Rs.1500/-
shall be paid to the injured Ved Prakash as
compensation.

3. Learned counsel for the appellants
submitted that the appellants are the real
brothers and have been falsely implicated
by their nephew due to land dispute. They
have been convicted under Section 307
I.P.C. and sentenced rigorous imprisonment
for four years with a fine of Rs.2000/- each,
which has been deposited by them. The
appellants have no criminal history either
before passing the impugned order of
conviction or thereafter and they are law
abiding persons of society. The appellants
8 All. Dharmeshwar & Anr. Vs. State of U.P.
47
and the complainant; injured are close
relatives
and
developed
harmonious
relations during pendency of the instant
criminal appeal, as such, no fruitful
purpose would be served by sending the
appellants to jail to serve the remaining
sentence. The appellants do not want to
press the instant criminal appeal on merits
and restrict their prayer for grant of benefit
of First Offender, which has wrongly and
illegally been denied by the trial court
without assigning any special reason. The
benefit of first offender cannot be denied
without recording any special reason. It has
further been submitted that the appellants
undertake to follow all the terms and
conditions as may be imposed by this Court
while passing the order in the instant
criminal appeal. He further submitted that
even if the prosecution case is taken to be
correct, the evidence under Section 307
I.P.C. is not made out and the offence
under Section 324 is only made out because
only one gun shot was made by the
accuseds on leg and it is also not proved as
to who made the shot out of the two
appellants. Thus the conviction may be
converted into Section 324 and the
appellants may be granted benefit of First
Offender.

4.
Learned
AGA
opposed
the
submissions of learned counsel for the
appellants and submitted that the appellants
have rightly been convicted in accordance
with law under Section 307 I.P.C. and
sentenced accordingly and the appeal is
liable to be dismissed.

5.
Learned
counsel
for
the
complainant does not dispute that the
appellants are the real brothers and the
complainant is the nephew of the appellants
and they have developed harmonious
relations during the pendency of the
criminal appeal and no fruitful purpose
would be served by sending the appellants
to jail and he has also no objection in case
the benefit of first offender is granted to the
appellants.

6. I have considered the submissions
of learned counsel for the parties and
perused the records.

7. The prosecution story, in short, is
that on 19.04.2006 at about 7:00 in the
evening, the uncle Dharmeshwar and Babu
Ram sons of Late Shyam Lal were trying to
keep the door on his wall, which was
objected by his sister and mother on
account of which there was quarrel
between them, The complainant received
information of the same at Gunjan Kiln,
where he was working. Upon hearing the
said information, while he was going to
home and as soon as he reached near his
agricultural field and village, Dharmeshwar
and Baburam were present on the way and
they fired at him with the intention to kill.
The shot of the fire hit in his right leg. The
incident is of about 8:30 p.m. Upon hearing
the sound of gun shot, Lakshman son of
Late Sri Rudai of his village and Rakesh
son
of
Hardwari
Lal
of
village
Mahmoodpur came and saved him. On the
basis of the said written complaint, the
F.I.R. vide Case Crime No. 159/06 under
Section 307 I.P.C. was registered at about
23:05 on 19.04.2006. During investigation,
the I.O. inspected the site and prepared the
site plan and recorded the statements of the
complainant and F.I.R. writer. The X- ray
of the injured Ved Prakash was got done
and the report was mentioned in the CD
and thereafter after recording the statement
of the concerned persons, charge sheet
under Section 307 I.P.C. was filed against
the appellants Dharmeshwar and Babu
Ram, upon which the cognizance was taken
48 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Magistrate and finding it to be
triable by the Sessions court, committed the
case to the Session. The Session court
framed charge against the appellants under
Section 307 I.P.C., which was denied by
the appellants and they prayed for trial.

8. During trial Prahlad, Ved Prakash
and Ram Murti were examined as P.W.1, 2
and 3. On the basis of their evidence, the
accused Anil was summoned under Section
319 Cr.P.C. vide order dated 15.03.2010
for trial in NCR No.60/2006 and charge
was framed separately against him under
Sections
323,
504,
506
I.P.C
on
21.04.2010. The accused Anil also denied
the charge and prayed for trial. Therefore
Prahlad and Ram Murti were again
summoned for re-examination. Thereafter
the witnesses Lakshman, Anita Devi, Dr.
R.A.L. Gupta, S.S.I, Dravid Kumar Singh,
Head Constable Babu Ram and Dr.
Rameshwar Prasad appeared for oral
evidence. In addition to the oral evidence
adduced by the prosecution witnesses, the
documentary evidence i.e. the written
report, Chik F.I.R., Site plan, X-Ray Plate,
X-Ray report, Medical Examination Report
etc. were also placed on record.

9. After conclusion of the evidence of
prosecution, statement under Section 313
Cr.P.C. of the accused-appellants was
recorded, in which they stated that a false
report has been lodged and all the
evidences are wrong and they have been
falsely implicated on account of enmity. It
was also stated that the wall is of the
accuseds and Ved Prakash and his family
members
wanted
to
forcibly
make
possession on the same on account of the
said enmity. It was also stated that the
medical of the injured was got done on
account of political pressure and the
doctor's report is false. It has also been
stated that on account of enmity of wall,
complaint is also pending in the court of
magistrate against the father of the
complainant. Thus the prosecution has
failed to prove it's case. Thereafter after
hearing and considering the evidence and
material on record and hearing the parties,
the trial court recorded a finding that the
evidence of all the witnesses is believable
and they supported each other and
accordingly found the prosecution case
proved and convicted the appellants under
Section 307 I.P.C. However, on account of
no evidence against the accused Anil, he
had been acquitted of the charges under
Section 323, 504 and 506 I.P.C..

10. P.W.1 Prahlad, in his evidence
stated that he, Dharmeshwar and Babu Ram
are real brothers and Anil is son of
Dharmeshwar.. Dharmeswar, Babu Ram
and Anil were keeping the door and waste
pipe after breaking his constructed wall,
which was objected by his wife Anita Devi
and daughter Ram Murti. On denying, they
had beaten them with kick and fists and at
that time he was at the kiln and on
information he came to home and went to
the police station Mishrikh with her
daughter Ram Murti, where he lodged
report . While he was in the police station,
his son Ved Prakash was brought by tempo,
who informed that while he was going to
home
from
kiln,
Babu
Ram
and
Dharmeshwar fired by gun on him with the
intention to kill at about 8:30 in the
evening. The fire had hit in his right leg.
Thereafter his son got report of the said
incident lodged. In the cross examination,
he admitted that the dispute in regard to the
falling of land amongst the brothers is
pending in the court.

11. Ved Prakash, the injured, appeared
as P.W.2. He stated that on 19.04.2006, he
8 All. Dharmeshwar & Anr. Vs. State of U.P.
49
was in the kiln for labour work, where he
got information that Dharmeshwar and
Babu Ram are trying to keep the door and
waste pipe on his wall and on objection by
his sister Ram Murti and mother Anita
Devi, Dharmeshwar, Babu Ram and Anil,
entering into the house, have beaten them.
Upon hearing the information, his father
went with the motor cycle to home.
Thereafter, while he was going back from
the vehicle after completion of his work
and reached in between the village and the
kiln at about 8:30 Babu Ram and
Dharmeshwar fired on him with the
intention to kill. Gun shot hit at his right
leg. On hearing the noise, Lakshman and
Ramesh came to save him and sent him to
home. The report of the incident was got
written by Awadhesh Kumar. Thereafter,
he went to the Police Station Mishrikh, on
which the F.I.R. was lodged. He proved the
F.I.R. He also stated that his X-Ray was
also got done. In cross-examination, he
stated that the gun shot was made from a
distance of about 10-15 steps. He could not
see as to whether the fire arm was small or
big, where the gun shot was made, the
pellets hit.The said pellets were shown by
him to the Inspector. The gun shot was
made from the front side and he fell turning
back and got unconscious. After 5-6
minutes, he woke and saw that Lakshman
and Rakesh were standing and the accused
Dharmeshwar and Babu Ram were also
standing.

12. Lakshman has been examined as
P.W.4. He stated that the incident is of
about four years back of about 8:30 in the
evening. At that time, he was going to his
house by road. When he reached between
the kiln and village, he heard the noise of
gun shot. Upon hearing the noise of gun
shot, he went towards the noise and found
Ved Prakash lying in the agricultural field.
He saw that two persons were running and
he recognised them with their voice as
Dharmeshwar and Babu Ram. The gun shot
was hit in the leg of Ved Prakash. He could
not see as to what was in their hand. Upon
reaching, Ved Prakash was speaking and he
told that Dharmeshwar and Babu Ram have
fired by gun on him. He does not know the
reason of gun shot. In cross- examination,
he stated that he had seen the accuseds
running but could not recognise them. He
was having a grocery shop near the kiln
and it was at the time of incident also. He
further stated that he supported Ved
Prakash and took him to his house.
Thereafter it started raining. Thereafter
after eating food, he went back to the shop.
He further stated that the things told today
were not told by him to the Inspector. He
had told him only what was asked by him.

13. Dr. R.A.L. Gupta appeared as
P.W.6. He proved the X-ray of right leg of
Ved
Prakash,
which
was
done
on
20.04.2006, on being referred by the
Medical Officer, Mishrikh. He further
stated that in X-Ray small and round radio
opic images were present, which may have
come by the pellets of gun shot.

14. Dr. Rameshwar Prasad appeared as
P.W.9. He stated that Ex. Ka-7 report was
prepared by Dr. Satendra Singh. He was
posted with him. He had seen him writing
and reading. He had done the medical
examination of Ved Prakash. He had died.
As per Ex. Ka-7, which is medical report of
Ved Prakash, there are many wounds of 0.2
mm to 0.5 mm on the right leg of Ved
Prakash caused by gun shot arm, which
were fresh.

15. Smt. Ram Murti daughter of P.W.1
and sister of P.W.2 has been got examined
as P.W.3. She stated about the incident of
50 INDIAN LAW REPORTS ALLAHABAD SERIES
forcibly keeping the door and waste pipe on
her wall by Dharmeshwar, Babu Ram and
Anil at about 7:30 in the evening about 3 and
1/2 years back and on being objected by her
and his mother, they were beaten by them by
lathi and danda. The information of the same
was given to her father Prahlad at Gunjan
kiln. They had threatened her and her mother
of dire consequences. His father came from
the kiln and went to the police station
alongwith them and lodged the report. On the
same day, at about 8:30 p.m., Dharmeshwar
and Babu Ram fired by gun on Ved Prakash
with the intention to kill. The incident was
told by her brother in Mishrikh, where she
had seen her brother in serious condition.
Similar statement has been given by Anita
Devi wife of P.W.1, who appeared as P.W.5.
She also stated the same incident as told by
her daughter. Head Constable Babu Ram has
proved the F.I.R.

16. S.S.I. Dravid Kumar Singh appeared
as
P.W.6,
who
had
conducted
the
investigation and filed the charge sheet. He
proved the injury report, X Ray report, site
plan and charge sheet etc.

17. Admittedly, a single gun shot was
made by two persons i.e. appellants
Dharmeshwar and Babu Ram and it has not
been disclosed by any of the witnesses as to
who made the gun shot. It is also not in
dispute that the gun shot was made in the
right leg of the injured Ved Prakash on
account of enmity for land between the father
of the injured and his brothers, in regard to
which an incident had occurred at the
residence of the injured at about 7:30 in the
evening, on account of keeping the door and
waste pipe on the constructed wall, which
appears to be between the houses of the
father of the injured and his brothers and
thereafter while his father went to lodge the
F.I.R., the alleged incident had happened.

18. P.W.2 Ved Prakash, the injured
has stated that the gun shot was made from
a distance of about 10-15 steps and he
could not see as to whether the fire arm was
big or small. P.W.4 Lakshman, who
reached on the spot upon hearing the noise
of gun shot, has stated that he saw two
persons
running
but
in
the
crossexamination he stated that though he had
seen the accused running but he could not
recognise them. He also stated that the things
told today were not told by him to the
Inspector. Thus there is contradiction in the
evidence of P.W.2 and P.W.4. P.W.2 stated
that he fell unconscious on receiving the gun
shot and when he woke up after 5-6 minutes,
he saw Lakshman and Rakesh alongwith
Dharmeshwar and Babu Ram standing,
whereas P.W. 4 has stated that when he
reached on the spot upon hearing the noise of
gun shot, he found that the injured Ved
Prakash was speaking and he told that the
Dharmeshwar and Babu Ram had fired by gun
on him but he does not know the reason of gun
shot. Thus the presence of P.W.4 on spot itself
becomes doubtful. It is also for the reason that
on the one hand he states that while he was
going back from his shop to his home, he on
hearing the noise of firing went on the spot
and found Ved Prakash lying there and
recognised Babu Ram and Dharmeshwar from
their voice, thereafter he stated that they were
running from there and he could not recognise
them and on the other hand he stated that after
leaving the injured Ved Prakash at home, it
started raining and thereafter after taking food
he went back to his shop, which does not seem
to be correct because when he was going back
to his house at about 8:30 in the evening from
his shop, question of his going back to shop at
that time, which may be after 9:00 or 9:30 in
the night does not seem correct.

19. Upon considering the evidence of
P.W.2, firstly, it is apparent that only one
8 All. Dharmeshwar & Anr. Vs. State of U.P.
51
gun shot was made, that too in the leg and
thereafter the appellants stopped and were
present on the spot at the time when Ved
Prakash woke up from unconsciousness.
Therefore it cannot be said that the gun
shot was made with the intention to kill by
the appellants because if it would have
been with intention to kill, the single gun
shot would not have been made in the place
where nobody else was present and that too
in the leg and they would not have stayed
thereafter. Neither the medical reports nor
the evidence of doctors also even suggest
that the injury was fatal in any manner.
Thus, the finding recorded by the trial court
that the gun shot was made by the
appellants with the intention to kill Ved
Prakash, that too without recording any
finding as to who made the gun shot, is
misconceived and not tenable. It is also
noticed that conviction has been made
under Section 307 I.P.C., whereas the
charge was framed under Section 307/34
I.P.C. against two persons and two persons
could not have been convicted under
Section 307 I.P.C. for attempt to murder on
account of one gun shot without any
evidence and finding as to who and how
made the gun shot.

20. Section 307 I.P.C. provides that
whoever does any act with such intention or
knowledge, and under such circumstances that,
if he by that act caused death, he would be
guilty of murder, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine; and, if hurt is caused to any
person by such act, the offender shall be liable
either to imprisonment for life, or to such
punishment as is here-in-before mentioned.
Section 307 I.P.C. is extracted hereinbelow:-

"307.
Attempt
to
murder-
"Whoever does any act with such intention
or
knowledge,
and
under
such
circumstances that, if he by that act caused
death, he would be guilty of murder, shall
be punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine;
and, if hurt is caused to any person by such
act, the offender shall be liable either to
imprisonment
for
life,
or
to
such
punishment as is hereinbefore mentioned."

21. In view of above, for conviction
under Section 307 I.P.C., proof of intention
and knowledge that by such act and in such
circumstances, death would be caused is
required, but in the present case, it is
missing and as discussed above, this Court
is of the view that the single gun shot on
the leg cannot be said to had been made
with the intention or knowledge of causing
death. Otherwise two persons would not
have made single gun shot and that too in
the leg. They would not had stayed also
thereafter. Thus, this Court is of the view
that in the facts and circumstances of the
case and on the basis of evidence adduced
in this case, the offence of Section 307
I.P.C. is not made out. However, provisions
of Section 324 I.P.C. are attracted, which
provides that except in the case provided
for by section 334, voluntarily causing hurt
by means of any instrument for shooting,
stabbing or cutting etc. which is likely to
cause death shall be punished with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both. Section 324 I.P.C.
is extracted here-in-below:-

"Section
324-
Voluntarily
causing hurt by dangerous weapons or
means:-Whoever, except in the case
provided for by section 334, voluntarily
causes hurt by means of any instrument for
shooting, stabbing or cutting, or any
52 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument which, used as a weapon of
offence, is likely to cause death, or by
means of fire or any heated substance, or
by means of any poison or any corrosive
substance, or by means of any explosive
substance or by means of any substance
which it is deleterious to the human body to
inhale, to swallow, or to receive into the
blood, or by means of any animal, shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both"

22. A Co-ordinate Bench of this Court,
in the case of Devi Singh & Another
versus State of U.P.; Criminal Appeal
No.220 of 1995, by means of the judgment
and order dated 04.05.2016 has held that
the Court has to see as to whether the act,
irrespective of its result, was done with the
intention
or
knowledge
and
under
circumstances mentioned in the 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
has been laid down by the Hon'ble Apex
Court in State of Maharashtra versus
Balram Balma Patil, AIR 1983 SC 305.
The relevant paragraphs 21 to 28 are
extracted here-in-below:-

"21. To justify a conviction under
Section 307 IPC, it is not essential that
bodily injuries capable of causing death
should have been inflicted. Although the
nature of injuries actually caused may
often give considerable assistance. Coming
to the finding as to the intention of accused,
such intention may also be deduced from
other circumstances and may even in some
cases be ascertained without any reference
at all to the actual wounds. This section
makes a distinction between an act of
accused and its result, if any. Such an act
may not be attended by any result. 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
has been laid down by the Hon'ble Apex
Court in State of Maharashtra versus
Balram Balma Patil, AIR 1983 SC 305.

22. It is true that merely because
the injuries are simple in nature, it cannot
be said that the offence made out would not
all be covered under Section 307 I.P.C. It
would all depend upon the facts of a given
case. Intention has to be seen in every case.

23. It also emerges that the sole
injury, even if accepted to be attributed to
the appellant, was simple in nature and
there is no iota of evidence to show that
this injury was sufficient in the ordinary
course
of
nature
to
cause
death.
Resultantly, the evidence can be said to
indicate involvement of the appellant in an
offence punishable for simple hurt with a
deadly weapon like country-made pistol.

24. In the facts and circumstances
of the case, it is difficult to accept that
knowledge or intention can be attributed to
the appellants about the likely death of the
victim by causing the injuries, because they
have not repeated the attack 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, accused Devi Singh could have
repeated the injuries and could have easily
killed the injured.
8 All. Dharmeshwar & Anr. Vs. State of U.P.
53

25. In AIR 1982 SC 2013,
Kundan Singh vs. State of Punjab, 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
I.P.C. 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 that he may
be set at liberty forthwith."

26. I would also like to place the
law laid down by the Apex Court in AIR
1996 SC 3236, Merambhai Punjabhai
Khachar and others vs. State of Gujarat,
wherein an attempt to commit murder by
fire arm and a pellet hit the victim,
however, the Apex Court held that Section
307 I.P.C. cannot be held to have been
satisfied and the conviction was altered to
Section 324 I.P.C.

27. In the case of Ramesh vs.
State of U.P., AIR 1992 SC 664, wherein
the injury was found on the back of the
injured. He was tried along with two other
was convicted under Section 307/34 I.P.C.
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 I.P.C. and
sentence was reduced to the period already
undergone with fine of Rs. 3000/-, which
was to be paid to the complainant as
compensation.

28. Thus, there was only one
lacerated wound on the body of injured
caused by fire-arm which was on the back
but there was no repeat of the injury nor
there was any intervening circumstance to
do away with the life of injured. There was
no repeat shot. Thus, I am of the view that
conviction of the appellants under Sections
307 and 307 read with Section 34 IPC
cannot be sustained and the appellants are
liable to be convicted for the offence
punishable under Section 324 IPC."

23. The Hon'ble Supreme Court in the
case of Neelam Bahal & Another versus
State of Uttarakhand; (2010) 2 SCC 229
has held that there is no categorical
statement in the medical certificate issued
by doctor that the injuries were in fact
dangerous to life and we are unable to
fathom as to whether this was a deliberate
omission or an oversight but whatsoever it
may be, the benefit must accrue to the
accused and converted the conviction from
under Section 307/34 to Section 326 I.P.C.
It is true that merely because the injuries
are simple in nature, it cannot be said that
the offence made out would not at all be
covered under Section 307 I.P.C. It would
all depend upon the facts of a given case.
Intention has to be seen in every case. It
also emerges that the sole injury, even if
accepted to be attributed to the appellant,
was simple in nature and there is no iota of
evidence to show that this injury was
sufficient in the ordinary course of nature
to cause death. Resultantly, the evidence
can be said to indicate involvement of the
appellant in an offence punishable for
54 INDIAN LAW REPORTS ALLAHABAD SERIES
simple hurt with a deadly weapon like
country-made pistol.

24. In view of above, the conviction
under Section 307 I.P.C. is not sustainable
and it is liable to be converted under
Section
324
I.P.C.
Accordingly,
the
conviction is converted under Section 324
I.P.C., in which the maximum sentence of
three years or with fine or with both can be
awarded. As discussed above, this Court is
of the view that it is not the case of award
of the maximum sentence of three years.
However learned counsel for the appellant
has submitted that the appellants are the
first offender and they are entitled for the
benefit of the First Offender, which has not
been considered and no special reasons
have been recorded for declining the same
by the trial court. It is settled law that
Sections 3 and 4 of the Probation of
Offenders Act,1958 which is applicable in
the State of Uttar Pradesh as held by
Hon'ble Supreme Court in the case of
Mohd.Hashim versus State of U.P.;
(2017) 2 SCC 1998, which provides power
to court to release certain offenders after
admonition or on probation of good
conduct. Sections 3 and 4 of the Probation
of Offenders Act are extracted here-inbelow:-

3. Power of court to release
certain offenders after admonition.-When
any person is found guilty of having
committed an offence punishable under
section 379 or section 380 or section 381
or section 404 or section 420 of the Indian
Penal Code, (45 of 1860) or any offence
punishable with imprisonment for not more
than two years, or with fine, or with both,
under the Indian Penal Code or any other
law, and no previous conviction is proved
against him 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 so to do, then, notwithstanding
anything contained in any other law for the
time being in force, the court may, instead
of sentencing him to any punishment or
releasing him on probation of good
conduct under section 4, release him after
due admonition. Explanation.-For the
purposes
of
this
section,
previous
conviction against a person shall include
any previous order made against him under
this section or section 4.

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
8 All. Dharmeshwar & Anr. Vs. State of U.P.
55
the report, if any, of the probation officer
concerned in relation to the case. 1. The
words "except the State of Jammu and
Kashmir" omitted by Act 34 of 2019, s. 95
and the Fifth Schedule (w.e.f. 31-10-2019).
3 (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.

25. Section 361 of the Code of
Criminal Procedure specifically provides
that where in any case the Court could have
dealt with an accused person under Section
360 or under the provisions of the
Probation of Offenders Act, 1958 but has
not done so, it shall record in its judgment
the special reasons for not having done
so.The Act does not create any distinction
between the character of the offender and
the provisions of Section 4 of the Probation
of Offenders act. The provision can be
applicable to any case where the convicted
is found guilty for having committed an
offence not punishable with death or
imprisonment for life. Incidentally certain
exceptions have been indicated by the
Hon'ble Supreme Court in the case of Smt.
Devki
Versus
State
of
Harayana
reported in 1979, (3) SCC 760, where the
Hon'ble Supreme Court has held that
benefit of Section 4 of 1958 Act could not
be extended to a culprit who was found
guilty of abducting a teenaged girl and
forcing her to sexual submission with
criminal motive. Similarly in the case
reported in 1980 (4) SCC 669 in Re: State
of Maharashtra Versus Natwar Lal
Damodar Das Soni the Hon'ble Supreme
Court declined to extend the benefit of the
1958 Act to an accused found guilty of
gold smuggling.

26. The Hon'ble Supreme Court, in the
case of Dalbir Singh versus State of
Haryana (2000) 5 SCC 82, has held that
the Parliament made it clear that only if the
court forms the opinion that it is expedient
to release him on probation for his good
conduct
regard
being
had
to
the
circumstances of the case. One of the
circumstances which cannot be sidelined in
forming the said opinion is "the nature of
the offence". Further, it has been held that
Section 4 casts a duty on the court to take
into account the circumstances of the case
including the nature of the offence. The
relevant paragraphs 8, 9 and 10 of the said
judgment are reproduced hereinafter:

"8.Parliament made it clear that
only if the court forms the opinion that it is
expedient to release him on probation for
56 INDIAN LAW REPORTS ALLAHABAD SERIES
his good conduct regard being had to the
circumstances of the case. One of the
circumstances which cannot be sidelined in
forming the said opinion is "the nature of
the offence".

9.Thus Parliament has left it to
the court to decide when and how the court
should form such opinion. It provided
sufficient indication that releasing the
convicted person on probation of good
conduct must appear to the court to be
expedient. The word "expedient" had been
thoughtfully employed by the Parliament in
the section so as to mean it as "apt and
suitable to the end in view". In Block's Law
Dictionary the word "expedient" is defined
as
"suitable
and
appropriate
for
accomplishment of a specified object"
besides the other meaning referred to
earlier. In State of Gujarat v. Jamnadas G.
Pabri & Ors., AIR (1974) SC 2233 a three
Judge Bench of this Court has considered
the word "expedient''. Learned Judges have
observed in paragraph 21 thus :

10.Again, the word 'expedient'
used in this provisions, has several shades
of meaning.