PALOK BASU, J. This appeal has been filed by Jhallar against his convic tion under Section 302 read with Section 301, I. P. C. and the sentence of imprisonment for life there under as also under Section 307, I. P. C. and the sentence of 10 years R. I. passed by the Additional Sessions Judge, Fatehpur on 5-10-1978 in S. T. No. 121 of 1978. 2. The charge against the appellant was that on 3-3-1977 at 6. 00 p. m. in village Naraini, P. S. Kishanpur, district Fatehpur, he did commit murder of Dakauli D/o Sughar Mai of village Naraini, P. S. Kishanpur by intentionally causing the death of Dakauli and thereby committed an offence punishable under Section 392 read with Section 301, I. P. C. In the same incident he fired with pistol at Lalman son of Jagdish with intention that if by that act death was caused to Lalman he would have been guilty of murder and thereby com mitted an offence punishable under Section 307, I. P. C. 3. The prosecution case is that Lalman son of Jagdish Prasad of village Naraini, P. S. Kishunpur, District Fatehpur lodged a written report at P. S. Kishunpur on 3-3-1977 at 10-45 p. m. that on 3-3-1977 he had gone to the house of Shyam lal Murai to hear "katha" and he was returning to his house at about 6. 00 p. m. from the house of Shyam lal Murai along with Thagru and Ram Deo. He was bringing his brothers daughter Dakauli in his lap (Kaniya) and when he had reached the door of Krishna Ahir he found Jhallar accused sitting. He proceeded ahead and when he reached in front of the door of his Baithaka along with others at about 6. 00 p. m. the accused Jhallar came from behind and fired at him as a result of which he received injuries on his waist and Dakauli received injury on her right leg. He raised alarm. Dagru and Ram Deo Singh who were accompanying him, challenged the accused, that the accused Jhallar ran away towards East with his pistol and managed to escape. Thagru and Ram Deo Singh had also seen the occurrence. He raised alarm. Dagru and Ram Deo Singh who were accompanying him, challenged the accused, that the accused Jhallar ran away towards East with his pistol and managed to escape. Thagru and Ram Deo Singh had also seen the occurrence. Six years before this occurrence he (complainant) had given evidence against Jhallar in a robbery case and since then Jhallar accused had become inimical to him and he had fired at him with intent to kill him. The injured Lalman some how managed a Tangari and he along with others was bringing his brothers daughter Dakauli to the Police Station when Dakauli succumbed to her gun shot injury near the crossing of Vijayeepur. 4. On this report lodge by the complainant, a case under Section 307/302, I. P. C. was registered. Lalman was sent for medical examination to the P. H. C. Vijayeepur where he was medically examined at 10. 00 a. m. on 4-3-1977. An inquest report of the dead body of Dakauli was drawn up on 4-3-1977 at the gate of Police Station in the morning. The dead body of Dakauli was thereafter sent for post mortem examination with photo lash and challan lash which the S. O. had prepared. Post mortem was conducted on the dead body of Dakauli on 4-3-1977 at 4. 30 p. m. by Dr. P. S. Misra at Fatehpur. The S. O. Shri R. K. Verma went to the place of occurrence. He took blood stained earth and blood from the place of occurrence, i. e. in the front of Baithaka of the complainant. He searched for the accused but the accused was absconding and he attached the property of the accused having obtained the order of Chief Judicial Magistrate. 5. The injuries of Lalman were X-rayed and it was confirmed that he had gun shot injuries. 6. During trial the accused pleaded not guilty and denied committing the offence and also denied any enmity with Lalman. He gave some reasons for his false implication but had not examined any witness in defence. 7. The post mortem examination on the dead body of Dakauli was conducted by Dr. P. S. Misra on 4-3- 1977 at 4. 30 p. m. and he found the follow ing injuries: 1. Lacerated gun shot wound 4" x 3" through and through on the right leg below the knee joint. 7. The post mortem examination on the dead body of Dakauli was conducted by Dr. P. S. Misra on 4-3- 1977 at 4. 30 p. m. and he found the follow ing injuries: 1. Lacerated gun shot wound 4" x 3" through and through on the right leg below the knee joint. Margins on the outer side were inverted and blackening was present. Inner margins were everted. 2. Abrasion 1" x " on the right thigh. 3. Abrasion 1" X 3/10" X 2" above injury No. 2 on internal exami nation he found that artery under leg No. 1 was perforated. 8. The doctor has said that Km. Dakauli was aged about two and a half years or three years and may have died on 3-3-197. 7 at about 9. 00 p. m. 9. Dr. P. P. Singh (P. W. 7) posted at P. H. C. Vijayeepur on 4-3-1977 had examined the injuries of Lalman at 10. 00 a. m. on that day, He had found multiple gun shot wounds of entrance in an area of 9 cm x 6 cm on the lower aspect of back in the middle region, 45 cm below the left shoulder. Size of each wound was 0. 3 X 0. 3 cm x muscle deep. Margins were inverted, echymosed but there was no blackening, signing, or tattooing of skin. The wound was covered with lymph. 10. Both the doctors have said that the injuries of Lalman as well as the injuries of Dakauli would be the result of one shot. 11. Sri J. S. Sengar, learned counsel for the appellant and Sri A. K. Dwivedi, learned counsel for the state were heard at length and the entire record has been examined. 12. During trial the prosecution has examined P. W. 2 Lalman, P. W. 4 Thagru Prasad, P. W. 5 Shyam lal as eye-witnesses out of whom P. W. 5 Shyam lal has been declared hostile and has not supported the prosecution case. 13. The prompt lodging of the first information report by Lalman and his medical examination at 10. 12. During trial the prosecution has examined P. W. 2 Lalman, P. W. 4 Thagru Prasad, P. W. 5 Shyam lal as eye-witnesses out of whom P. W. 5 Shyam lal has been declared hostile and has not supported the prosecution case. 13. The prompt lodging of the first information report by Lalman and his medical examination at 10. 00 a. m. on 4th March at Fatehpur by the doctor duly supported by the X-ray examination proved beyond doubt that the incident narrated by Lalman in the first information report as also in the deposition made before the court is correct, These circumstances fully corroborated the testimony of the said eye- witnesses and the trial Judge has not committed any error in placing reliance upon it. Similarly the testimony of P. W. 4 Thagru Prasad is also without any blemish and inspite of lengthy cross-examination nothing material has been elicited in order to discredit his testimony. 14. Consequently it proved beyond doubt that the incident as narrated by the two prosecution witnesses was truthful and the appellant has been rightly convicted by the trial Judge. 15. The question, however, is as to what offence has been committed by the appellant when one or a few pellets struck on the leg of the child being carried in the lap of Lalman. There was no intention on the part of the appellant to cause death of the small child. Similarly the injury in the leg region from a great distance would not indicate that the appellant had any intention to cause her death. The result, therefore, is that at best the appellant can be said to have committed an offence punishable under Section 304, Part 11, I. P. C. 16 Coming to the question of the causing of injuries to Lalman it can certainly be not doubted that the appellant had intended to cause the death of Lalman but it was by sheer providence that he had been saved. The fact how ever remains that the distance from where he had fired was probably long enough as to lessen the velocity of the pellets and they did not get too deep to cause any irreparable injury on P. W. 2 Lalman. This conviction of the appel lant under Section 307, I. P. C. therefore, does not call for any interference. This conviction of the appel lant under Section 307, I. P. C. therefore, does not call for any interference. 17 The learned counsel for the appellant rightly pointed out from the record that the appellant has already been in jail, as under trial prisoner and as a convict, after the trial Judges judgment was delivered, for a period of about three years. It was vehemently argued that the incident being of 1977 no further sentence need be awarded to the appellant as he is earning his livelihood and that of his family by putting himself as daily labourer. On examina tion of the record it appears that the appellant has been in confinement for little less than three years. In view of the aforesaid discussion this appeal should partly succeed. 18 Consequently the appeal is partly allowed. The conviction of the appellant under Section 302/301, I. P. C. and the sentence of imprisonment for life thereunder are set aside. Instead, he is convicted under Section 304, I. P. C. 19. The conviction of the appellant under Section 307, I. P. C. is upheld. 20. The appellant is said to have undergone nearly three years R. I. as under trial prisoner. Therefore, the sentence under the aforesaid two sections are reduced to the period undergone on either count. The appellant is on bail. He need not surrender. His bail bonds are discharged. Appeal partly allowed. .