JUDGMENT 1. 1.These two appeals one filed through jail and the other represented one, are directed against the judgement dated July 6, 1973 of the learned Sessions Judge, Alwar, whereby he convicted accused-appellant Ganesha under Section 302, I.P.C. for committing the murder of Madan and sentenced him to imprisonment for life. 2. The facts giving rise to these appeals are that the marriage party of which Ganesh was a member went from village Karnawat to village Khatiawada and then to village Dabla. A dance was arranged at the house of Gangu to entertain the members of the marriage party. Madan (since deceased) was dancing wearing the dress of a women. Accused Ganesha, who was armed with a gun, felt that Madan (since deceased) was not dancing properly. He expressed his annoyance and asked in a till late manner "whether he was not being paid for dance" and fired a shot which hit Madan (since deceased) and as a result of which he fell down and met instantaneous death. The accused took to his heels with the gun in his hand. He was followed up the heels by other persons, caught and brought back on the spot. First information report Ex. P/8 of this occurrence was lodged at the Police Station, Tehla on May 11, 1971 at 2.30 p. m. Dr. K. L. Sharma, who performed autopsy on the dead body of Madan noticed the following external injuries:- I. Gun shot injuries 5 in number out of which four were entry wounds, ore was exit wound. The details of the injuries are as under:- (i) Lacerated wound with inverted margins measuring 1/2" x 1/2" bone deep situated on the left parietal region. (ii) Lacerated wound 1/2" x 1/2 bone deep on the left parietal region. (iii) Lacerated wound 1/2" x 1/2" bone deep on the left parietal region. (iv) Lacerated wound ⅓ " ⅓" bone deep just to the left of mid-line on vertex away from injury No. 3. He further noticed that the exit wound was also a lacerated wound measuring x y bone deep just to the right of mid-line on vertex. In the opinion of the doctor all the injuries were ante-mortem in nature and duration was 24 hours. He further opined that the death of Madan was caused due to the gun shot injury to skull resulting into coma culminating into death. 3. In the opinion of the doctor all the injuries were ante-mortem in nature and duration was 24 hours. He further opined that the death of Madan was caused due to the gun shot injury to skull resulting into coma culminating into death. 3. The police after usual investigation submitted a charge-sheet under Section 302, I.P.C. against the accused-appellant in the Court of Munsiff Magistrate, Rajgarh, district Alwar. The learned Magistrate after taking committal proceedings under Section 207-A Cr.P.C. committed the accused to the Court of Session for trial. The accused not guilty to the charge and the prosecution examined 9 witnesses in support of their case. The accused denied his complicity in the crime in his statement recorded under Section 342 Cr.P.C. and examined two witnesses in support of his plea. 4. The learned Sessions Judge found the defence evidence not reliable and placing reliance on the statements of the eye-witnesses and the medical evidence, he held the accused guilty of the offence punishable under Section 302 I.P.C. and sentenced him as mentioned above. Hence this appeal. 5. We are not required to deal with the prosecution evidence in detail and all the circumstances brought forth on record by the prosecution, to establish the guilt against the accused, as the learned counsel appearing on behalf of the accused-appellant, keeping in view the preponderance of evidence on record, has rightly conceded that there are no sufficient grounds made out for challenging the fact that the accused had fired a shot which hit Madan (since deceased). However, we have looked into the relevant portion of the record and are satisfied that the prosecution has established beyond reasonable doubt by overwhelming evidence that the incident did take place in the manner alleged by the prosecution and during the course of that incident Madan (since deceased) sustained gun shot wounds. 6. The only question seriously before us is that the learned Sessions Judge committed an error of law in convicting the accused under Section 302 I.P.C., as according to the learned counsel, at best the accused could have been convicted either under Section 304-A or under Section 304 Part II I.P.C. 7. Learned counsel appearing on behalf of the State has supported judgment of the trial court. Learned counsel appearing on behalf of the State has supported judgment of the trial court. His contention is that firing of a gun where large number of persons were standing is imminently dangerous as the accused has been rightly convicted under Section 302 1. P. C. 8. On a careful reading of the relevant portion of the evidence of the eye witnesses it is quite clear that the incident happened in a very short time and suddenly. There was no previous enmity between the accused and the deceased. There is no evidence to hold that the accused took an aim and fired the shot. The expression of annoyance, by the accused regarding the manner of dance being performed by the deceased and firing of shot is suggestive of the fact that in all probability he let go his gun without aiming at Madan (since deceased) in order to terrify him and make him to dance better. Dr. K. L. Sharma, who performed postmortem on the dead body of Madan, failed to state that the injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. In the circumstances, to which we have referred, we are unable to hold the accused let go the trigger off that knew the act was so immensely dangerous that it must in all probability have caused death or that the act would cause such bodily injury as likely to cause death. In the words of the majority decision of the Supreme Court in Willem Slaney v. State of Madhya Pradesh, AIR 1986 SC 116 as quoted in para 70 of the report we are not prepared to hold that the act was only 'likely' to cause death and in the absence of special knowledge the offence under Section 304 Part II I.P.C. The act appears to have been done with the knowledge that it was likely to cause death, but without an intention to cause death or to cause such bodily injury as was likely to cause death. 9. 9. The net result of the above discussion is that we accordingly allow the appeal to the extent that the conviction of the accused-appellant Ganesha under Section 302 I.P.C. is set aside and the sentence of imprisonment for life awarded to him is also set aside, but his conviction is converted from Section 302 I.P.C. to that under Section 304 Part II I.P.C. and he is sentenced to five years' rigorous imprisonment. 10. It is, however, made clear that the accused-appellant shall be entitled to the benefit of Section 428 Cr.P.C. and the period of detention undergone by him during investigation, inquiry or trial shall be set off against the term of imprisonment awarded to him by this Court. *******