JUDGMENT 1. - This appeal is directed against the judgment of the learned Additional Sessions Judge, Bali dated 27.5.1988, whereby the learned Judge has convicted the accused appellant under Section 302 I.P.C. and sentenced him to imprisonment for life. By the same judgment the appellant was also convicted under Section 307 I.P.C. and sentenced to five years rigorous imprisonment. The learned Judge also convicted he accused appellant under Sections 25 and 27 Arms Act and sentenced him to one year's rigorous imprisonment on both the counts. All the sentences were directed to run concurrently. 2. The brief facts giving rise to this appeal are that on 11.3.1983 at 9.30 P.M. one Chhagan Lal filed a written report with the S.H.O. Police Station Rani. It is alleged therein that on that evening at about 7.30 P.M. the informant was working in his shop. His shop is situated at the bus stand Nadol. His brother Tarachand, and Ramlal driver of the jeep were taking food inside the shop. Champalal was also sitting there and was talking. Out-side the shop, his father Lakhmaji, Ali Ahmed, Bhanwar Singh, Kenaram, Sarupa., Sargara were sitting on the cot and chair and were talking. At that time Galiya Sargara, who was sitting at the Chabutara, was also talking. The accused armed with a gun passed through the shop. When he passed through the shop Galiya told them that he is his son-in-law and some dispute is going on with him. He apprehended that he might create some problem at the house. After some time the accused came back from the village towards the shop. Then Champalal after talking to his brother came out. At that time accused Banshilal with the intention to kill Galiya fired a shop. As a result of this firing Galiya and Tarachand, his brother and Ramlal who were taking food inside the shop were seriously injured. Galiya received injuries on his back, Tarachand received injuries on his temporal region and Ramlal driver received injuries on the head. He also stated that they were immediately take to the Hospital. Accused Banshilal was apprehended with the help of Ali Bhai and his gun was also smatched. On the advice of Doctor. Tarachand was shifted to Pali, where the Doctors declared Tarachand dead. The gun which was snatched from accused Banshilal was also handed over to the S.H.O. Police Station, Rani. Accused Banshilal was apprehended with the help of Ali Bhai and his gun was also smatched. On the advice of Doctor. Tarachand was shifted to Pali, where the Doctors declared Tarachand dead. The gun which was snatched from accused Banshilal was also handed over to the S.H.O. Police Station, Rani. On the basis of this report, the police registered a case under Sections 302 and 307 I.P.C. and Sections 25 & 27 of the Arms Act. After close of the investigation, the Prosecution filed a challan in the court of concerned Magistrate and ultimately the case was committed the court of Sessions. The prosecution in support of its case examined as many as 22 witnesses and got a large number of documents exhibited. The plea of the accused was that his father-in-law was not sending his wife and he got a search warrant issued for the same. But his wife was available. When he was waiting for the bus at the bus-stand at that time his brother-in-law Dariyav and his father-in-law Gala came over there and gave him a beating. It is alleged that as a result of this beating he fell unconscious and regained his consciousness on the next morning at the Nadol Hospital. He denied the firing at the shop as well as the recovery of the gun from him. But he did not examine any witness in defence. 3. The learned Additional Sessions Judge. Bali after due trial convicted and sentenced the accused Banshilal as aforesaid. Hence, the present appeal. 4. We have heard learned counsel for the appellant and the learned Public Prosecutor and have also perused the record. 5. In the present case, the material witnesses, who have been produced by the prosecution in order to substantiate its case, are P.W. 1 Ali Ahmed P.W. 2 Galaram, injured, P.W. 3 Lakhma Ram, P.W. 7 Ramlal, injured P.W. 16 Champalal and P.W. 17 Chhaganlal. 6. P.W. 1 Ali Ahmed has deposed that on the relevant day he was sitting at the shop Shiv Kirana Store, which was situated near the bus-stand. At that time Lakhmaram, Bhanwar Singh, Galiya, Sarupa and Kenaram were also sitting at the shop. He has further deposed that Galiya was also sitting with him. He was sitting on the chair and Galiya was sitting on the floor. Chhagan was also sitting at the shop. At that time Lakhmaram, Bhanwar Singh, Galiya, Sarupa and Kenaram were also sitting at the shop. He has further deposed that Galiya was also sitting with him. He was sitting on the chair and Galiya was sitting on the floor. Chhagan was also sitting at the shop. He has deposed that he saw the accused Banshilal going from the bus-stand towards the village. He was armed with a gun. He has further deposed that Galiya after seeing the accused Banshilal told that Banshilal is his son-in-law and the police people came at his house to take his daughter but she was not at home. However, he denied as to who fired the shot. He was declared hostile and was cross-examined by the Public Prosecutor. 7. Another witness is P.W. 2 Galaram, injured. Witness Galaram is the father-in-law of accused Banshilal. He has deposed that when he was sitting at the shop of Lakhmaram, Banshilal fired a shot which hit him on back. He has deposed that Tarachand and Ramlal also received injuries of fire. He has deposed that Tarachand received injuries on temporal region whereas Ramlal received injuries on head. Tarachand died. He further deposed that Banshilal fired from the distance of 10-15 kadams. He has also deposed that Banshilal was caught hold of by Ali Ahmed and Bhanwarsingh. The gun was snatched from Banshilal by Ali Ahmed and Bhanwarsingh. He further deposed that after receiving the injuries they were taken to Pali. He denied the suggestion that at the time when the gun was fired it was was dark. But he deposed that there was light. 8. P. W. 3 Lakhmaram who is father of deceased Tarachand has also deposed that at the relevant time Pukharj, Ali Ahmed, Bhanwar Singh, Champalal, Ramlal, Tarachand, Kenaram and some other persons were sitting at the shop. Tarachand was sitting inside the shop. He deposed that the gun shot was fired by Banshilal, which hit Galiya. Tara Chand and Ramlal. He deposed that he was sitting on the cot out side the shop. He has also deposed that after firing accused Banshilal wanted to run away from there, but he was over-powered by Ali Ahmed, P. W. 1, Keniya and Bhanwarsingh. 9. P. W. 7 Ramlal is the driver of the jeep, who was sitting inside the shop and was taking food alongwith Tarachand. He has also received gun shot injuries on head. He has also deposed that after firing accused Banshilal wanted to run away from there, but he was over-powered by Ali Ahmed, P. W. 1, Keniya and Bhanwarsingh. 9. P. W. 7 Ramlal is the driver of the jeep, who was sitting inside the shop and was taking food alongwith Tarachand. He has also received gun shot injuries on head. 10. P. W. 16 is Champalal. He has deposed that the shop Shiv Kirana Store belonges to Lakhmaram. On the relevant day in the evening at about 7 P. M. he was sitting there. At that time Tarachand, Ramlal and Chhaganlal were also present at the shop. He has also deposed that Ali Ahmed Bhanwar Singh. Galaram and Sarupa were sitting outside the shop. Kenaram Choudhary was also silting outside the shop. As soon as he came out after talking to Tarachand from the shop he saw the accused Banshilal coming from the village and he came in front of the shop, stopped there and fired. As a result of this firing Tarachand, Ramlal and Galaram received injuries. Tarachand received injuries on his temporal region, Ramlal received injuries on his fore-head, whereas Galaram received injuries on his back. He further deposed that as soon as Banshilal tried to run away, he fell down. Bhanwaisingh and Ali Ahmed over-powered him. The gun was also snatched away by them and thereafter it was handed over to the police. The police came there and investigation was taken up. The injured were immediately sent to Hospital but Tarachand succumbed to his injuries at Pali Hospital. 11. P. W. 17 Chhaganlal is the younger brother of deceased Tarachand. He has deposed that the shop Shiv Kirana Store is of his father. He also deposed that he and his brother both were looking after the shop. He has further deposed that on 11-3-1983 at about 7-7.30 P. M. his brother Tarachand and the driver Ramlal were taking food inside the shop. One Champalal was also sitting and talking with them. He also deposed that he was sitting at the Gaddi and looking the accounts. Outside the shop, his father Lakhmaram, Ali Ahmed, Bhanwarsingh, Kenaram, Sarupa were sitting on chairs and the cot and they were also talking. At that time, Banshi Lal went towards the village from the bus-stand. He was armed with a gun. Galaram was also sitting at the Chabutara and was talking. Outside the shop, his father Lakhmaram, Ali Ahmed, Bhanwarsingh, Kenaram, Sarupa were sitting on chairs and the cot and they were also talking. At that time, Banshi Lal went towards the village from the bus-stand. He was armed with a gun. Galaram was also sitting at the Chabutara and was talking. After seeing Banshilal, Galaram told that he is his son-in-law and he is quarrelling with him because he is not sending his daughter with him. He apprehended that he might create some problem at the home. After some time Banshilal came back from the village to the shop and as soon as he came there he fired a shot which hit on the back of Galaram, his, brother Tarachand also received injuries on the temporal region and Ramlal also received injuries on his fore-head Banshilal soon after the firing tried to run away but he fell down and thereafter Ali Ahmed and Bhanwarsingh overpowered him. They also snatched the gun from him. He deposed that the injured were first taken to the Nadol Hospital in the jeep and thereafter to Pali Hospital. But at the Pali Hospital his brother Tarachand was declared dead. Therefore, he submitted a report to the Sub-Inspector at Nadol, who was there at Nadol. 12. Learned Counsel for the accused appellant submitted that P. W. 1 Ali Ahmed has turned hostile and apart from him, a number of other witnesses who were sitting there at the shop, have also turned hostile like P. W. 6 Bhanwar Singh and P. W. 8 Kenaram. Therefore the independent witnesses are not there and there are only either injured witnesses or the relations of the deceased. Therefore the prosecution story is not corroborated by the independent witnesses. Learned counsel also submitted that the accused has also received injuries, but no explanation has been given in regard to the injuries received by him. In the alternative, learned counsel appearing for the accused appellant has submitted that even if the prosecution story is taken to be correct then too also the offence cannot travel beyond Section 304 Part II I.P.C. In support of his aforesaid submission, learned counsel has invited our attention to Babulal v. State of Rajasthan (1988 R. C. C. Page 225) and Surgyani & ors. v. State of Rajasthan (1989 R. C. C. 237). 13. v. State of Rajasthan (1989 R. C. C. 237). 13. We have given our thoughtful consideration to the submissions made by the learned counsel. It is true that independent witnesses, namely. P.W. 1 Ali Ahmed, P.W. 6 Bhanwar Singh and P.W. 8 Kenaram, who were said to be present at the scene of occurrence at the relevant time have turned hostile. But nonetheless P. W. 1 Ali Ahmad has admitted that he was sitting at the relevant time at the shop and he also admitted that Banshilal passed in front of the shop and he was armed with a gun. He has also admitted that relations between Banshilal and Galaram were strained as he was informed by Galaram but he did not know as to who fired the gun. He also admitted that Galaram deceased. Tarachand and Ramlal were injured by the firing. The witness was declared hostile by the prosecution and he was cross-examined. But nonetheless he has admitted the firing of the gun and he was present at the scene of the occurrence. Simply because he has been declared hostile that would not render his testimony completely unworthy, as his statement on material particulars stand corroborated by the other witnesses also. Therefore, even if he was declared hostile then too also his statement, which is corroborated by the other witnesses can be read. P.W. 2 Galaram who was also injured by the firing is the father-in-law of the accused Banshilal. He has received injuries on his back and why would be wrongly implicate the accused Banshilal. P.W. 3 Lakhma was the owner of the shop where the incident took place. P.W. 7 Ramlal is driver and was taking food inside the shop at the relevant time. He also received injuries of fire-arm on his fore-head. P.W. 16 Champalal and P.W. 17 Chhaganlal both were out-side the shop. It is true that P.W. 17 Chhaganlal is the brother of the deceased but PW 16 Champalal has no relation whatsoever with the deceased or the injured. Apart from this P.W. 3 Lakhmaram has no reason to wrongly implicate the accused Banshilal who is the perpetrator of the crime. At the same time he will be last person to do so to screen the real offender from the clutches of law when his son himself fell victim of the gun shot. Apart from this P.W. 3 Lakhmaram has no reason to wrongly implicate the accused Banshilal who is the perpetrator of the crime. At the same time he will be last person to do so to screen the real offender from the clutches of law when his son himself fell victim of the gun shot. Therefore, there is no reason to disbelieve the statements of Likhmaratn, Galaram, Chhaganlal and Champalal and so also Ali Ahmed. A bare reading of the statements of these witnesses leaves no room for any doubt that accused Banshilal was the assailant. It is true that other two witnesses, namely, P.W. 6 Bhanwarsingh and P.W. 8 Kenaram have turned hostile. But nonetheless eye-witnesses produced by the prosecution as mentioned above are truthful witnesses and there is no reason to disbelieve the testimony of these eyewitnesses. More-so, there is no reason why P.W. 3 Likhmaram, P.W. 16 Champalal and P.W. 17 Chhaganlal will wrongly implicate the accused Banshilal as they have no animosity whatsoever with him. 14. Now, the next question, in these circumstance, arises is as to what offence is made out against the accused. 15. In the present case, in fact, the accused has no enmity whatsoever either with Ramlal or the deceased Tarachand. He was having an animus against his father-in-law Galaram for not sending his wife, namely, daughter of Galaram. Therefore, in fact, he fired a shot at Galaram but unfortunately some of the appellats fired towards Galaram escaped him and hit deceased Tarachand and Ramlal who were sitting inside the shop. Tarachand succumbed to his injuries. However, Ramlal survived. Therefore,he has no intention to kill Tarachand, as such he cannot necessarily be said to have intended to murder Tarachand by fire arm. But it is unfortunate that stray pellets hit Tarachand and ultimately it proved fatal. In this circumstances, it cannot be said that the accused intended to cause the death of Tarachand. 16. In some what similar circumstances in Babulal's case (supra) the accused caused a single injury by Kulhari to deceased, who was an intervenor in the incident, without any premeditation, motive or enmity. In those circumstances the accused appellant was convicted under Section 304 Part II I.P.C. 17. 16. In some what similar circumstances in Babulal's case (supra) the accused caused a single injury by Kulhari to deceased, who was an intervenor in the incident, without any premeditation, motive or enmity. In those circumstances the accused appellant was convicted under Section 304 Part II I.P.C. 17. Likewise, Surgyani's case (supra) was a case of free fight and benefit of right of private defence was given and the offence was converted from 302 l.P.C. as to 304 Part II I.P.C. Therefore, in the present case, the offence cannot travel beyond Section 304 Part II I.P.C. as the accused did not intend to cause death of deceased Tarachand. 18. Now, coming to the conviction of the accused appellant under Section 307 I.P.C. However, the accused is guilty of causing injuries to Galaram and Ramlal by the fire-arm, which he know that it is likely to cause death. As such he is guilty under Section 307 I.P.C. 19. In the result, we convert the conviction of the accused appellant from Section 302 I.P.C. to Section 304 Part II I.P.C. and sentence him to 5 years rigorous imprisonment and we upheld the conviction and sentence of the accused appellant under Section 307 I.P.C. Likewise, we also upheld the conviction and sentence of the accused appellant under Sections 25 and 27 of the Arts Act. However, we direct that all the sentences shall run concurrently. 20. The appeal is partly allowed, as indicated above.Appeal partly allowed. *******