Judgment SHALMA, J. ( 1 ) - This criminal jail appeal has been preferred by accused Salim, against the judgment of the Additional Sessions Judge, Jhalawar, dated 28th May, 1977, whereby, he has been found guilty under Section 302, IPC, and sentenced to imprisonment for life; and to pay a tine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. ( 2 ) AS this is a jail appeal and no advocate was engaged on behalf of the accused-appellant, Miss Rajesh Kandwal advocate, was appointed as amicus curiae in this case, by this Court, to argue the case on behalf of the accused-appellant. ( 3 ) THE prosecution story in brief is, that on 2nd November, 1976, at about 4 PM, Amarsingh and Gumansingh resident of Gagrani Bardi were grazing their cows. Poorsingh, son of Ghisu, resident of Dhabla, was working m his cotton. field. Amarsingh PW 8 and Mansingh PW 10 were also grazing their cattle there on the Pahadi (hillocks) A cow of Amarsingh PW 8, entered into the field of Bhanwersingh, son of Madhosingh, resident of Dhabla. The residents of Village-Dhabla, for taking care of their fields, had engaged Yasinkhan, the father of accused Salim, as Chowkidar. When the cow of Amarsingh entered into the field of the villagers of Dhabla village, accused Salim and Sharif came armed with gun and lathi from the cotton-field of Poorsingh. Accused Salim was having gun in his hand and Sharif was armed with a lathi. Amarsingh took out his cow from the field. At this, Sharif inflicted a lathi blow to Amarsingh. Deceased Poorsingh, who was also standing nearby, asked Salim not to beat him and told that if any damage had been caused to him that would be compensated. Poorsingh tried to rescue Amarsingh from accused Salim and Sharif. At this, Salim, who had a gun in his hand, fired it at the chest of Poorsingh. The shot bit Poorsingh at his chest. He fell down and died at the spot. Accused Salim and Sharif ran away from the place of the occurrence. Maansingh came to the village and informed Motilal, who is the brother of deceased Poorsingh, of the incident Motilal came to the spot and saw there that Poorsingh was lying dead. He had been hit at the chest and blood was coming out. Accused Salim and Sharif ran away from the place of the occurrence. Maansingh came to the village and informed Motilal, who is the brother of deceased Poorsingh, of the incident Motilal came to the spot and saw there that Poorsingh was lying dead. He had been hit at the chest and blood was coming out. He lodged a report at Police Station - Pidawa of the incident, which is Ex. P. 1. The police registered a case under Section 302/34, Indian Penal Code against the accused persons. The Station House Officer of that Police station, went to the spot and inspected the site and prepared a site-plan, Ex. P. 11. An inquest report of the dead body of Poorsingh, was also prepared, which is Ex. P. 12 Halat-Moka, Ex. P. 13 was also prepared. While Ex. P. 14 is the Panchnama of the dead body Of Poorsingh. Blood-stained earth and plain earth were also taken into possession from the spot, vide memo, Ex. P. 15. A post-mortem examination of the dead body of Poorsingh deceased was conducted by Dr. Bhulauath, and the post-mortem report is Ex. P. 5. The doctor sent the clothes of the deceased duly sealed 10 the Station House Officer, Police Station. Pidawa and they were received vide memo Ex. P. 4. Accused Salim was arrested vide memo, Ex. P. 17; and accused Sharif was arrested vide memo, Ex. P. 18. While in custody, accused Salim gave information to get recovered a gun. This information was reduced into writing, which is Ex. P. 19. On the basis of this information Ex. P. 19 and at the instance of accused Salim the gun was recovered vide memo, Ex. P. 16. Accused Sharif also gave information for the recovery of lathi and on the basis of this information, and at his instance, the lathi was also recovered. The gun is article -10. An identification test for the gun was also done, and the identification-memo is Ex. P. 2. After usual investigation, the police submitted a challan against the accused persons, Salim and Sharif, and they were committed to the court of Additional Session Judge, Jhalawar, for trial. ( 4 ) THE learned Additional Sessions Judge framed charges against accused-appellant Salim under Sections 302 and 323/34, Indian Penal Code. He framed charges against accused Sharif under Sections 302/34 and 323, Indian Penal Code. Both the accused persons pleaded not guilty. ( 4 ) THE learned Additional Sessions Judge framed charges against accused-appellant Salim under Sections 302 and 323/34, Indian Penal Code. He framed charges against accused Sharif under Sections 302/34 and 323, Indian Penal Code. Both the accused persons pleaded not guilty. In their statements under Section 313, Criminal Procedure Code they both have denied the allegations made against them. They have said that they have been falsely implicated. ( 5 ) TO prove its case, the prosecution has examined 15 witnesses in all. The accused persons have also examined two witnesses in their defence. After hearing both the sides and appreciating the evidence on the record, the learned Additional Sessions Judge found that no case was made out against Sharif under Section 302/34 Indian Penal Code and - against accused Salim under Section 323/34, Indian Penal Code, and hence he acquitted both the accused persons from these charges However, he found accused Salim guilty under Section 302. Indian Penal Code and sentenced him as mentioned above. Accused Sharif was found guilty under Section 323, Indian Penal Code and was sentenced to one years rigorous imprisonment. ( 6 ) THE learned amicus curiae has argued that the whole case has been made out on account of enmity between the two parties, i. e. , Gagrani Bardi and Ohabla; and that, one of the prosecution witnesses, namely, Guman Singh is a child witness and the learned Additional Sessions Judge has erred in believing the statement of this witness. Apart from this, it was argued that the prosecution has failed to establish a case beyond reasonable: doubt. It was also argued that from the evidence on record, a case under Section 302, Indian Penal Code, has not been established. If accused Salim is found guilty of any offence then an offence under Section 304, Part- II, Indian Penal Code only i8 made out against this accused, and he can be convicted for the said offence, and as such, his conviction under Section 302, Indian Penal Code, is not correct. ( 7 ) WE would like to mention here that the challan was filed against accused Salim and Sharif. Accused Sharif has been convicted under Section 323, Indian Penal Code and sentenced to one years rigorous imprisonment. No appeal has been filed against that conviction of accused Sharif. The only appeal before us is that of accused Salim, which is being disposed of. Accused Sharif has been convicted under Section 323, Indian Penal Code and sentenced to one years rigorous imprisonment. No appeal has been filed against that conviction of accused Sharif. The only appeal before us is that of accused Salim, which is being disposed of. ( 8 ) THE learned Public Prosecutor, on the other hand, in reply to the arguments of the learned amicus curiae supported the judgment of the learned Additional Sessions Judge. She has argued that a case under Section 302 simpliciter has been established against accused Salim and he has rightly been convicted of this offence. Regarding prosecution witness, it was argued by the learned Public Prosecutor that there is no infirmity or contradiction in the statements of the prosecution witnesses, and that, all the witnesses have corroborated each other, and there is no discrepancy to discard the testimony of the prosecution witnesses, and that, it has been proved that accused Salim had fired gun at Poor Singh, which hit him at his chest and on account of this gun-shot, Poor Singh died at the spot, and so, this is a clear case of murder, because accused Salim had fired his gun with intention, at the chest of Poor Singh, to murder him, and as such, the prosecution evidence is trustworthy and reliable. About the child witness, Guman Singh, it was argued that this is no ground that he being a child witness should not be believed. ( 9 ) WE have considered the arguments advanced by both the counsel. We have gone through the entire evidence on record and also perused the judgment of the learned Additional Sessions Judge. ( 10 ) THE first aspect, to be looked into is, whether Poor Singh died of natural death or on account of the fire of gun by the accused persons. The prosecution has examined Dr. Gulab Chand, P. W. 7, who conducted postmortem examination on the dead body of Poor Singh, son of Gulabji. During post-mortem examination, the said doctor found the following two gunshots on the dead body of Poor Singh deceased:- 1. Gun-shot wound 11/2 x 11/2 and upon the back on left side of the chest 1/2 below the storno clavicular junction and point 5 cm. left to the sternal boarder oval in safe margin inverted ecchymosis skins surrounding is scortched and tatooted, 2. Gun-shot wound 11/2 x 11/2 and upon the back on left side of the chest 1/2 below the storno clavicular junction and point 5 cm. left to the sternal boarder oval in safe margin inverted ecchymosis skins surrounding is scortched and tatooted, 2. Gun-shot wound 1/2 x 1/2 on left side of back 4 outer to the mid line margins regular everted and communicate to the injury No. 1. Thus, in the opinion of the doctor, the cause of the death of Poor Singh was due to performation of heart and lung causing severe haemorrhage shock and death. The injuries were ante-mortem in nature. The injuries mentioned in the report, Ex. P-5, were sufficient to cause the death. One small piece was found in tae heart and the second one in the left lung. Both these pieces were sealed by the doctor and were sent to the Station House Officer along with a letter, Ex. P. 6. Anar Singh P. W. 8; Amar Singh P. W. 9; Maan Singh P. W. 10; and Poor Singh P. W. 12 have stated that accused Salim, who was having a gun in his hand had fired at Poor Singh deceased on his chest, and thereafter, Poor Singh fell down and died on the spot. Thus, from the evidence as well as the medical report, it has been established that Poor Singh died on account of gun-shots, the heart and the lung were destroyed, which resulted in the death of Poor Singh. Nothing was argued by the learned amicus curiae contradicting this position. She has not been able to argue that Poor Singh died of natural death and not on account of gun-shots wounds. We, therefore, agree with the learned Additional Sessions Judge and find that the death of Poor Singh deceased was homicidal in nature. The important aspect of this case now to be seen is whether accused Salim gave gun-shot or fired gun at the chest of deceased Poor Singh. Anar Singh P. W. 8 in his statement, has stated that deceased Poor Singh, Amar Singh, Guman Singh and Maan Singh were grazing their cattle. Then, accused Salim and Sharif came there. Salim had a gun in his hand; and accused Sharif had a lathi with him. Accused Sharif inflicted a lathi blow on Amar Singh. Anar Singh P. W. 8 in his statement, has stated that deceased Poor Singh, Amar Singh, Guman Singh and Maan Singh were grazing their cattle. Then, accused Salim and Sharif came there. Salim had a gun in his hand; and accused Sharif had a lathi with him. Accused Sharif inflicted a lathi blow on Amar Singh. Thereupon, deceased Poor Singh went to rescue him and asked accused Salim not to beat Amar Singh and further that if any damage was caused to him, that would be compensated. At this, accused Salim fired gun-shot at Poor Singh, which hit at his chest. Poor Singh fell down and died at the spot. Similar statement has been given by Amar Singh P. W. 9; Maan Singh P. W. 10, Guman Singh P. W. 11; and Poor Singh P. W. 12. These witnesses have been cross-examination to discard the testimony of these witnesses. None of these witnesses has been shattered in the cross-examination. As such, we see no reason to disbelieve the statements of these witnesses. ( 11 ) IT was argued that Gumansing, P. W. 11 is a child witness and, therefore, he. should not be believed. In this respect, we have care fully gone through the statement of this witness. The said witness Gumansingh is aged 11 years. In his statement, he has stated that two sons of Chaukidar were also present at the spot. Anarsingh, Amarsingh, Maansingh and Poor singh were grazing their cattle there. One of those two sons gave a lathi blow to Amarsingh. When Poorsingh asked them as to why they were beating him, the second son fired a gunshot at Poorsingh, as a result of which, Poorsingh fell down on the ground and died at the spot. No doubt, this witness Gumansingh has not named the accused persons. He was not administered oath even. But, we have gone through his statement. He bas stated that one of the two sons of Chaukidar fired at Poorsingh, who were present there at the spot. Thus he has corroborated the statements of the other Prosecution witnesses also. There is nothing to discard the statement of this witness Gumansingb. P. W. 11. No doubt, the statement of a child witness has to be seen very cautiously, but, there is no rule that the statement of a child witness, in all circumstances, has to be discarded. Thus he has corroborated the statements of the other Prosecution witnesses also. There is nothing to discard the statement of this witness Gumansingb. P. W. 11. No doubt, the statement of a child witness has to be seen very cautiously, but, there is no rule that the statement of a child witness, in all circumstances, has to be discarded. We have looked into the statement of this witness very minutely, and we do not feel that this witness has given a false statement. He has also been corroborated by the other prosecution witnesses. The learned Additional Sessions Judge also, in his judgment, has discussed the statement of this witness in detail. We have also gone through the entire evidence. We are of the opinion that the prosecution witnesses are reliable and trustworthy witnesses, and we find nothing in the evidence to discard their testimony. We, therefore, believe the prosecution evidence and hold that accused Salim who was having a gun in his hand, fired at Poorsingh which hit at his chest resulting in his death instantaneously. Therefore, we are in agreement with the finding of the learned Additional Sessions Judge about this fact. ( 12 ) THEN, the argument of the learned amicus curiae is that a case under Section 302, Indian Penal Code, has not been made out against the accused appellant, and it falls within the purview of Section 304, Part-Il, Indian Penal Code. In support of her this argument, she bas placed reliance on a decision of the Supreme Court in Sital Singh v. The State of Punjab1. In that case, the appellant was held guilty of murder and causing voluntary hurt by dangerous weapon. In that case, the medical evidence was that the gun-shot had hit the deceased on the upper right thigh. It was held in that case that there was no pre-meditation. The appellant in that case was 19 years of age. Considering all these aspects, Hontble the Supreme Court in that case, held that the case fell within the purview of Section 304, Part-I, Indian Penal Code, and hence, the conviction of the appellant was converted from that of Section 302, Indian Penal Code to 304, Part-I, Indian Penal Code. In the present case, the circumstances are different. Considering all these aspects, Hontble the Supreme Court in that case, held that the case fell within the purview of Section 304, Part-I, Indian Penal Code, and hence, the conviction of the appellant was converted from that of Section 302, Indian Penal Code to 304, Part-I, Indian Penal Code. In the present case, the circumstances are different. In this case, this is correct that there was no premeditation, but the accused persons were armed with a gun and had fired it at Poorsingh deceased. The fire had hit Poorsingh at his chest. In Sital singhs case (supra) the bullet bad hit at the upper right thigh, but, in the present case, the gun-shot hit at the chest of Poorsingh. According to the medical evidence, small pieces of iron were found in the heart as well as the lung. It means that the fire directly hit the heart and the lung. So, with this distinction, we are of the opinion that the case cited above by the learned -amicus curiae, does not help the accused- appellant in the present case. The present one is a case of more serious nature. There was clear intention of murder in the present case as the gun-shot that was fired had hit at a vital part of the body, and which was bound to cause death, and as such, the case cited above, is not of any help to the accused. Another case, on which reliance was further placed by the learned amicus curiae, is Shankar v. State of Madhya Pradesh2. In that case, their Lordships of the Supreme Court observed as under: Death on account of dagger-injury caused on the neck - Occurrence taking place without any premeditation while the deceased along with the accused and others had finished meals-Accused, held, could not be said to have any intention to cause the particular injury on the vital part - Accused, however, must be deemed to have knowledge that death might be caused by his act - Conviction under section 302 was liable to be changed to one under section 304, Part-Il. We have gone through the above judgment also, and we find that this case is also distinguishable from the present one. In Shankers case (supra) the injury was caused on the neck by a dagger and that too during the time while the accused and the deceased were taking their meal. We have gone through the above judgment also, and we find that this case is also distinguishable from the present one. In Shankers case (supra) the injury was caused on the neck by a dagger and that too during the time while the accused and the deceased were taking their meal. In the present case, the injuries were not caused by any sharp-edged weapon, but, by a gun; and that too on the heart, which hit Poorsingh at his chest and he died instantaneously. In the heart wound, small pieces of -iron was found during the postmortem examination of the dead body of the deceased. As such, this is clear that the accused had the intention to murder poorsingh when he fired the gun which hit his chest. As such, rulings cited above by the learned amicus curiae, do not help the accused in any way. Then, the case that was relied upon by the learned amicus curiae is Byyapagu Subha Rao v. State of Andhra Pradesh3. This case also does not help the accused in the present case, because, that was a case where there were some altercations between the victim and the accused and as a result of the sudden quarrel, the accused stabbed the victim on his chest injuring his heart. It was on account of sudden quarrel, and only a single stab wound was caused in that case by the accused, and it was held by their Lordships of the Andhra Pradesh High Court that a case under Section 304, Part II and not under Section 302, Indian Penal Code, was made out. The present case is distinguishable from that case. In this case, there was no question of sudden quarrel, and the wound is of gun-shot, which hit at the chest of the victim. ( 13 ) WE, therefore, find that the learned Additional Sessions Judge has not committed any error in giving the finding that accused Salim intentionally fired gun at Poorsingh deceased which hit at his chest, who died at the spot instantaneously, and this clearly proves the intention of murdering him. We agree with the finding given by the learned Additional Sessions Judge. ( 14 ) IN the result, we find no force in this appeal and it is hereby dismissed. We accordingly confirm the conviction and sentence awarded by the learned Additional Sessions Judge. The accused appellant is in jail. We agree with the finding given by the learned Additional Sessions Judge. ( 14 ) IN the result, we find no force in this appeal and it is hereby dismissed. We accordingly confirm the conviction and sentence awarded by the learned Additional Sessions Judge. The accused appellant is in jail. He be detained to undergo the sentence of imprisonment awarded to him by the learned trial court. .