JAIN, J.—This appeal arises out of the judgment of the learned Additional Sessions Judge, Alwar, dated April 15, 1972, by which he convicted the appellant under section 304 Part II, I.P.C., and sentenced him to rigorous imprisonment for three years 2. I have heard arguments and perused the record. 3. The broad facts of the prosecution case are that a marriage party was returning from Palav on its way back to Alipur in truck No. P.N U. 1075 on the night intervening the 23rd and 24th May, 1968. Two employees, namely, Gulabkhan and Kansingh (P.W. 2), of the Commercial Taxes Department, who were posted at Shah-jahanpur check post, signaled the truck to stop, but the signal was not heeded and thereupon Gulabkhan opened fire with 303 rifle. The bullet pierced through the body of the truck and killed one of the members of the marriage party, namely, Rambhajan. The medical evidence was that Rambhajan had one gun shot entry wound near the spine 3* above the hip level and two gun shot exit wounds in the left axillary line 1/4" apart from each other 3 above the hip The death of Rambhajan was due to rupture of small intestine, large intestine and left kidney. Four metallic pieces were recovered from the abdominal cavity. The police recovered the rifle and empty cartridge case from the possession of Gulabkhan vide memo Ex. P/7. The rifle is numbered 29596. The motbirs Premchand Sharma (P.W. 9) and Phoolchand (P.W. 12) are the wit-nesses of the seizure memo. Head constable Ramsingh (P.W. 15) prepared the seizure memo Ex. P/7. None of these witnesses has said that empty cartridge case was also seized in their presence. It appears further that constable Chhaganlal (P.W. 13) had taken the rifle and the empty cartridge case to saugar. Shri C.D. Gandhe (P.W. 16) is the ballistic expert, who examined the rifle Art 3 and the empty cartridge case Art. 4. His statement is that firing pin impressions on test cartridges were compared with firing pin impressions on Art. 4 with positive results. As regards the metallic pieces which were recovered from the body of the deceased Rambhajan, the witness stated that no striatums could be detected on any of these pieces on miscrosco-pical examination. The empty cartridge Art. 4 was fired from the. 303 rifle Art. 3. As regards the metallic pieces which were recovered from the body of the deceased Rambhajan, the witness stated that no striatums could be detected on any of these pieces on miscrosco-pical examination. The empty cartridge Art. 4 was fired from the. 303 rifle Art. 3. The six metallic pieces Art. 5 could have formed part of 303 cartridge bullet, though it was not possible to say that these pieces were in fact the components of the bullet which was fired out of the cartridge Art 4. Thus, it was proved that Rambhajan died on account of a bullet injury caused by a 303 rifle. 4. Kansingh (P.W. 2), who was present at the time the occurrence is alleged to have taken place, deposed that he and Gulabkhan were posted on the check post Sahajahanpur to detain trucks. Gulabkhan had a rifle with him and he had no weapon with him. At about mid night, when a truck came near Sahajahanpur village, he gave a signal to the truck to stop. The truck did not stop. However, it had to halt on account of the stones by which the kachha way was blocked. He demanded the papers of the vehicle, but he was beaten and fell unconscious. He regained consciousness in the hospital at Narnaul. He was declared hostile by the prosecution. 5. Hetram (P.W. 3), Balbir, (P.W. 4), Chunnilal (P.W. 5), Jaidayal (P.W.6) and Sultan (P.W. 8), who were members of the marriage party travelling in the truck, have deposed that they had caught hold of Kansingh on the spot and Kansingh told them that the other man who fired at the truck was Gulabkhan. 6. Meghsingh (P.W. 7) was the driver of the truck. He stated that the injured was taken to Bardod, then to Nangal Chaudhary and then to Narnaul. 7. Ashwani Kumar (P.W. 10) is the Commercial Taxes Officer, was has proved an entry in the register of arms and ammunition of Flying Squad during the month of October. According to this entry the aforesaid rifle was issued to Padamsingh, but the witness could not say how the rifle came in possession of Gulabkhan. 8. 7. Ashwani Kumar (P.W. 10) is the Commercial Taxes Officer, was has proved an entry in the register of arms and ammunition of Flying Squad during the month of October. According to this entry the aforesaid rifle was issued to Padamsingh, but the witness could not say how the rifle came in possession of Gulabkhan. 8. Premchand Sharma (P.W. 9), who was Assistant Commercial Taxes Officer, posted at the check post of Shahajahanpur did state that the aforesaid rifle was taken from the possession of Gulabkhan, but he could not say whether there was any entry in the relevant register regarding issue of the rifle to Gulabkhan. 9. The learned trial Judge came to "an irresistible" conclusion that the rifle remained in the possession of Gulabkhan. Though there was no evidence to show how the weapon was handed over to Gulabkhan, but the learned trial judge was of the view that it would not weaken the prosecution in so far as the rifle was seized from the accused. He had no hesitation in saying that the prosecution had proved beyond any manner of doubt that the rifle Art. 3, which corresponds to the description given in entry Ex.P/8, was seized and recovered from the possession of the accused. Since the rifle was recovered from the possession of the accused and Kansingh, his colleague, had no weapon, it clearly and definitely raised an inference that it was the accused and no one else, who fired the rifle it the truck In his statement under sec-tion 342, Cr.P.C. the accused admitted that he had a rifle when he and Kansingh were sent on duty. That further supported the evidence of the prosecution. The learned trial judge then proceeded to examine what offence was committed by the accused Gulabkhan. According to him the offence made out was under Part II of section 304, I.P.O. 10. The learned counsel for the appellant submitted that there was no evidence that the rifle was issued by the Department to Galabkhan. The emoty cartridge case was not recovered from the scene of occurrence and indeed none of the witnesses hid said that any cartridge case was even recovered from the possession of Gulabkhan. The learned counsel for the appellant submitted that there was no evidence that the rifle was issued by the Department to Galabkhan. The emoty cartridge case was not recovered from the scene of occurrence and indeed none of the witnesses hid said that any cartridge case was even recovered from the possession of Gulabkhan. Unless the investigating officer and the attesting witnesses state that cartridge was reco-vered from Gulabkhan, it is not permissible to hold merely on the basis of the recovery memo that the empty cartridge case was recovered from the possession of Gulabkhan. As regards the answer of the accused to question No. 5 whether what Kansingh stated that be bad a gun with him, was correct, the accused replied that it was correct, the learned counsel submits that this statement cannot be read against the accused, because in reply to other question he had categorically said that he had no rifle with him, nor did he fire any rifle, nor was any rifle recovered from him. In this connection the learned counsel invited my attention to State of Gujarat vs. D. Pande(1) at para 5 wherein it has been observed that the court cannot split the statement into various parts and accept a portion and reject the rest. It has to either accept that statement as a whole or not rely on it at all. 11. As regards the evidence of the ballistic expert, the learned counsel contended that unless the expert was able to say that the pieces, which were recovered from the person of the deceased, bore satiation marks and were of the bullet fired from the rifle in question, it cannot be said that the pieces which were recovered, were of the bullet fired from the rifle recovered from the possession of the accused. I was referred to Mohinder Singh vs. The State (2) para 10 and it was urged that where the prosecution has a definite or positive case, it must prove the whole of that case. The prosecution in this case has failed to prove that he injuries caused to the deceased were caused with the rifle and in the manner the prosecution has alleged they were caused. 12. The prosecution in this case has failed to prove that he injuries caused to the deceased were caused with the rifle and in the manner the prosecution has alleged they were caused. 12. The learned counsel then submitted that it was a dark night and the possibility that some one might have fired and the actual culprit might not have been seen or detected and further that the appellant was falsely implicated, cannot be ruled out and on that basis the benefit of doubt should be extended to the accused. 13. I have considered over all these submissions and I do not find any force in any of them. From the evidence on record it is proved that Gulabkhan was an employee of the Commercial Taxes Department posted on the relevant date at the check post Shahajahanpur. He and Kansingh (P. W. 2) attempted to stop the truck and when it disobeyed their signal, Gulabkhan fired his rifle at the truck It is true that the departmental Officers have not said how the rifle came to be issued to Gulabkhan, but it is difficult, to reject the evidence that the rifle was recovered from the possession of Gulabkhan. The recovery memo Ex. P/7 shows that the empty cartridge case was also recovered from the possession of the accused. It was sent to the ballistic expert for examination and his opinion was that it was fired from the said rifle. Even if the prosecution witnesses are silent about the recovery of the empty cartridge case from the possession of the accused, the evidence of the prosecution is so overwhelming that it is difficult to refuse the fact that Gulabkhan had a rifle which he fired at the truck eventually causing the death of Rambhajan Kansingh had told all the witnesses that it was Gulabkhan who was responsible for the gun fire, though he has now chosen to give evidence in favour of the accused. Even though the night was dark there appears little doubt that what Kansingh told the witnesses, was correct. I, therefore, uphold the finding of the learned lower court that it has been proved beyond any manner of reasonable doubt that while attempting to stop the truck for purpose of checking or whatever it be Gulabkhan fired his rifle and the bullet passed through the body of the truck, and wounded Rambhajan. I, therefore, uphold the finding of the learned lower court that it has been proved beyond any manner of reasonable doubt that while attempting to stop the truck for purpose of checking or whatever it be Gulabkhan fired his rifle and the bullet passed through the body of the truck, and wounded Rambhajan. 14 The last question that survive for consideration is what in fact is the offence which the accused can be said to have committed. The learned trial judge is of the opinion, as I have stated above that the accused was guilty under Part II of sec. 304, I.P.C., because knowledge can be imputed to him that his act was likely to cause death of any of the occupants of the truck. The learned counsel for the appellant contends that the offence of the appellant did not go beyond the ambit of sec 304A. IPC. He cited Sadhu Singh vs. The State of Pepsu (3) in support of his contention In that case the accused was over anxious to show all hospitality to the deceased who was a Mahant and was anxious that the Mahant should not go away from his house without raking meals and spending the night with him. When the accused saw that the Mahant was going away, in all probability, he let go his gun without aiming it at the Mahant in order to prevent him from leaving his place by terrifying him to some extent. The shot hit the deceased in chest and he died of the would later on. It was held by the Supreme Court that it could not be held proved that the accused had any intention of firing at the Mahant He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place It was a wholly rash and negligent act on the part of the accused or at the worst was an act which would amount to manslaughter. The accused was, therefore, held guilty of an offence under section 304-A, IPC 15. The learned counsel for the appellant further submitted that in a case under section 304-A, I.P.C., in re Ibramsa (4) the sentence of the prisoner was reduced to the period already undergone and in addition a fine of Rs. 100/- was imposed. The accused was, therefore, held guilty of an offence under section 304-A, IPC 15. The learned counsel for the appellant further submitted that in a case under section 304-A, I.P.C., in re Ibramsa (4) the sentence of the prisoner was reduced to the period already undergone and in addition a fine of Rs. 100/- was imposed. In that case the sentence undergone was only 19 days. 16. The next case cited was Emperor vs. Akbar Ali (5), in which the accused was a lorry driver and had run over a child. A fine of Rs. 30/- was considered adequate to meet the ends of justice. 17. Another authority cited was Kanti Prashad vs. The State (6). In that case also the sentence under section 304-A of the Indian Penal Cade was reduced to that already undergone, because the accused was not a previous convict and was likely to loss his service and had been in prison for over a month. 18. The last case referred to was Jagdish Chander vs. State of Delhi (7). In that case a collusion took place between a truck and an auto-rickshaw. The later being a lighter vehicle, was so pushed as to make its driver lose all control of the rickshaw. The auto-rickshaw dashed against a child. The finding of the lower court that the death of the child was the direct result of the rash and negligent driving of the rickshaw, was maintained on the peculiar facts and circumstances of the case, but the sentence was reduced to that already undergone, but the fine was increased from Rs 500/- to Rs, 700/- because the circumstances in which the collusion took place prima facie suggested that both the drivers were to blame. The accused had served three weeks of imprisonment, but the proceedings against him dragged on for eight years. The Supreme Court observed that the penalties designed to deter crime should be gaged so far as possible to the degree of social danger that is represented by the crime and its repetition. To send the appellant back to jail to serve the sentence of 6 months after 8 years seems to be highly unjust for the kind of offence which has been upheld against him by the three courts below. It is unlikely to have any reformatory effect on him. To send the appellant back to jail to serve the sentence of 6 months after 8 years seems to be highly unjust for the kind of offence which has been upheld against him by the three courts below. It is unlikely to have any reformatory effect on him. Harassment of a Criminal trial for more than 8 years and the expense which he must have incurred, can legitimately be taken into account when considering the question of sentence to be imposed. 19. On the basis of these decisions it is urged on behalf of the appellant that he has been in jati for 21 days after conviction and 4 days before conviction, it is stated that he is a man of poor means with a family to maintain and no purpose will be served by sending him to prison. His sentence be reduced to what he has undergone. 20. I have considered over these submissions. The main basis on which the learned trial judge convicted the appellant under part II of section 304, I.P.C., was that the accused had the knowledge that his act is likely to cause death of any member of the marriage party. But there is no evidence that the accused had any knowledge that the truck was carrying marriage party. In this state of affair it is not possible to impute knowledge to the accused of the kind the learned lower court has done. In view of the decisions cited by the learned counsel for the appellant, particularly in view of the Supreme Court decision, the offence of the appellant falls within the mischief of sec. 304-A, I.P.C. The act of the accused was rash inasmuch as he fired upon a moving truck without any regard that it might cause death of any occupant of the truck. He will be deemed to have acted with the consciousness that injury will probably be caused but with the hope that it will not. He hazarded a dangerous act with a recklessness and indifference to consequences. I therefore, hold the appellant guilty under sec. 304 A I.P.C. 21. As regards the sentence the circumstances to be considered are that the accused was on duty and that duty was to stop the vehicle for checking. It was a dark night and the truck did not stop inspite of the signal given by the accused party. I therefore, hold the appellant guilty under sec. 304 A I.P.C. 21. As regards the sentence the circumstances to be considered are that the accused was on duty and that duty was to stop the vehicle for checking. It was a dark night and the truck did not stop inspite of the signal given by the accused party. The accused, as I have noted above, had no knowledge that the truck was carrying the marriage party. In these circumstances, he is entitled to leniency in the matter of sentence. I, therefore, direct as follows : (1) the appellant is acquitted of the offence under sec. 304 part II, I.P.G., but instead, he is convicted under sec. 304-A, I.P.G., (2) his sentence of imprisonment is reduced to what he has undergone and a fine of Rs. 300/- is further imposed. In default of payment of fine he shall undergo simple imprisonment for one month. The decision o(the appeal accordingly.