Judgment Giridhar Malaviya, J. 1. This appeal has been preferred by Shakir1 who has been convicted by Sessions Judge, Mirzapur in Sessions Trial No. 85 of 1978 under sections 302/301 Indian Penal Code and has been awarded imprisonment for life. As per the case of the prosecution disclosed in the First Information Report lodged by one Mishri Lal is that on 21-2-1978 he was sitting at his parchoon shop in village Bijaipur. At about 8 p.m. Shakir appellant went to his shop and asked for a bidi and match box. At that time Babboo Mali, Munni Lal and Panna Lal of his village as also his wife Patti Devi, daughters Km. Ranno and Km. Mallo along with his brother Nanku were present on their shop. Shortly thereafter Asgar went to his shop and wanted to purchase gram for his horse. Shakir accused asked Asgar to lend him Rs. 2/-. Asgar told Shakir that he had no money to give him. There was some altercation whereafter Shakir appellant took out a country made pistol from his right pocket and fired at Asgar with a view to kill him the shot fired by him hit his daughter Ranno aged about 9 years who fell down. He rushed and caught hold of Shakir, but Shakir gave him a push and fled away. Shortly thereafter Km. Ranno died on account of the gun shot injuries. All the persons present on the shop had seen the incident in the light of electric bulb in the shop. This report was written by Sheo Pujan Shukla on the dictation of Mishri Lal and lodged at the police station Vindhyachal at a distance of about 12 miles on the same day at 10 p.m. 2. The report was entered in the general diary by Head Constable Kamla Yadav PW 5 in the presence of Investigating Officer Phool Chandra Rai PW 6. The Investigating Officer immediately proceeded to the place of incident where he reached at about 11 p.m. He prepared an inquest on the body of Km. Ranno and sent the same for post mortem examination through constables Ram Manohar Tewari and Dhananjay which was conducted on 22-2-1978 at 1 P.M. by Dr. G.D. Barnwal who found the following ante mortem injuries on the person of the deceased : 1. Ranno and sent the same for post mortem examination through constables Ram Manohar Tewari and Dhananjay which was conducted on 22-2-1978 at 1 P.M. by Dr. G.D. Barnwal who found the following ante mortem injuries on the person of the deceased : 1. Lacerated wound 15 cm x tissue deep on the back of left arm upper part of skin, margin inverted and blackened (wound of entrance) 2. Lacerated wound 2 x 1.5 cm on back of left arm upper and inner part (wound of exit). Both wounds has a direct track. 3. Lacerated wound 2 x 1.5 cm x skin deep on upper and outer side of left chest and exilla in front of injury no. 2. The Investigating Officer thereafter recorded the statement of the complainant and other witnesses, searched the accused persons who were not traceable. Then he took into possession the blood stained gunny bag on which the dead body of Km. Ranno was lying, prepared memo, got it signed by the witnesses and also prepared the site plan on 27-2-1978. He recorded the statement of one Panna Lal. The accused surrendered and the Investigating Officer recorded his statement in jail on 28-2-1978 whereafter the charge sheet was submitted. After the appellant had been committed to the Court of Sessions he was tried by the learned Sessions Judge. At the trial the prosecution examined Mishri Lal, Km. Mallo PW 2, Asgar PW 3 and Munni Lal PW 4 as witnesses of fact. Although Asgar and Munni Lal did not support the prosecution case in full but they did corroborate the evidence of the other witnesses and had also accepted the part of the prosecution story. On an assessment of evidence- the learned Sessions Judge found the prosecution case against the appellant proved and consequently convicted him as has been mentioned above. 3. We have heard Sri V.C. Katiyar learned counsel for the appellant and Sri S.P. Singh learned Govt. Advocate. 4. PW 1 Mishri Lal in his deposition categorically gave out the prosecution case and stated that the shop occupied by him is in the outer portion of his residence in which he resides. On the day of the incident at about 8 p.m. Shakir had come to his shop for purchasing bidi. Shortly thereafter Asgar alias Karia who drives an ekka also came to purchase gram. Shakir asked Asgar to lend him some money. On the day of the incident at about 8 p.m. Shakir had come to his shop for purchasing bidi. Shortly thereafter Asgar alias Karia who drives an ekka also came to purchase gram. Shakir asked Asgar to lend him some money. Asgar said that he had no money and he was purchasing gram of the entire money which he had possessed. Thereafter there was an altercation amongst the two. Asgar threw away Rs. 2/- in the shop. His daughter Ranno was lifting the money when Shakir fired from his weapon. He rushed to catch hold of Shakir but he fled away. His daughter died thereafter in a shortwhile. The incident, apart from him, was witnessed by Babboo, Mallu, Munni Lal and Nanku. When the incident took place an electric light was burning in his shop. The blood had fallen down at the place where her daughter had been shot. In the cross examination the witness said that he or his family had absolutely no enmity with Shakir. He also said apart from other facts that after the shot had been fired Nanku, Babboo, Munni Lal and Panna had once fled away but had returned after about 10 or 15 minutes. There is nothing material elicited in the cross examination of this witness which could discredit his testimony. Mallo PW 2 was aged about 12 years at the time of her examination in the court. After putting some question to this witness the learned Sessions Judge was satisfied that she was aware of the sanctity of oath. Consequently oath was administered to her. She said that about 13 or 14 months prior to her making statement she was sitting in her shop along with Ranno. Her father Mishri Lal was sitting at platform where Babboo, Nanku, Munni Lal and Panna Lal were also present. Shakir Came to the shop and asked his father for bidi and match box. At the same time Asgar who drives Ekka came there. Asgar wanted gram for Rs. 2/- to feed his horse. Shakir as ked Asgar to pay him Rs. 2/- Asgar said that he had no money to be given to Shakir. Shakir said whether he was ready to give him Rs. 2/- or not as otherwise he would kill him whereupon Shakir took out a pistol from his right pocket and fired it towards Asgar. 2/- to feed his horse. Shakir as ked Asgar to pay him Rs. 2/- Asgar said that he had no money to be given to Shakir. Shakir said whether he was ready to give him Rs. 2/- or not as otherwise he would kill him whereupon Shakir took out a pistol from his right pocket and fired it towards Asgar. The shot fired by Shakir hit her sister Ranno who was standing near Asgar. Ranno fell down and died after sometime. The blood had also come down at the place where she had fallen. An Electric light was burning in the shop. Shakir resided in her village whom she knew from before. In the cross-examination all that could be elicited from her was that her father had left the place of incident after about an hour or two and the Investigating Officer had reached the place of incident at about 11 p.m. Thus the evidence of this witness is otherwise fully reliable. 5. PW 3 Asgar in the examination-in-chief admitted that he had gone to the shop of Mishri Lal at the time and date of the incident to pay back the money for items he had taken on credit. He however said that there was no electric light but only a lamp (chirag) was burning there. He also admitted that Shakir met him there and asked him for Rs. 2/- which he said he did not have. However he said that Shakir did not quarrel with him and he went away on his Ekka. Thereafter he was declared hostile. 6. PW 4 Munni Lal said that he was sitting on his platform across the platform of Mishri Lal. He heard the report of gun shot which came from Misri Lal's shop. Ranno had been hit by a gun shot. However he said that he did not see who had fired the shot. He also said that he did not see Shakir at the shop of Mishri Lal nor did he see him running away. This witness was declared hostile. Thereafter he admitted that he had given a statement to the Investigating Officer as was recorded by him under section "161 CrPC. He said that part of that statement was correct and the part of that statement was wrong. He attributed his statement on the basis of information which he gathered at the shop of Mishri Lal. Thereafter he admitted that he had given a statement to the Investigating Officer as was recorded by him under section "161 CrPC. He said that part of that statement was correct and the part of that statement was wrong. He attributed his statement on the basis of information which he gathered at the shop of Mishri Lal. However he admitted that there was electric light at the shop of Mishri Lal. Learned counsel for the appellant contended that since Km. Mallo was a child witness and was living with he father, therefore, it was not safe to rely upon her testimony. His further argument was that PW 3 Asgar and PW 4 Munni Lal having turned hostile their evidence could not be of any use to the prosecution at all. His final contention was that Mishri Lal was thus the sole eye witness in this case and since PW 3 Asgar has said in the cross examination that when he went to the shop of Mishri Lal. Mishri Lal was not there and he had paid the money to the wife of Mishri Lal, therefore, even Mishri Lal should not be relied upon. According to learned counsel for the appellant there was, therefore, no evidence in this case on which the prosecution could make out the charge against appellant Shakir. 7. On the other hand learned Govt. Advocate says that Mishri Lal and Mallo were both natural Witnesses and since Km. Mallo also understood the sanctity of her oath, hence she should be believed. He also points out that since Mishri Lal had admitted that he had no enmity with Shakir and since Shakir is the sole accused who has been assigned the role of shooting there is no reason why the testimony of theirs may not be accepted. According to him the testimony of Asgar and Mishri Lal lend corroboration to the testimony of Mishri Lal and Manno and as such the charge against the appellant is fully proved. 8. We have considered the respective submissions made by learned counsel for the parties. We are of the opinion, that Mishri Lal and Mallo are natural witnesses. There was absolutely no suggestion that either Mishri Lal or Km. Mallo would be deposing against the appellant, due to any enmity. Admittedly the shot was never aimed at Km. 8. We have considered the respective submissions made by learned counsel for the parties. We are of the opinion, that Mishri Lal and Mallo are natural witnesses. There was absolutely no suggestion that either Mishri Lal or Km. Mallo would be deposing against the appellant, due to any enmity. Admittedly the shot was never aimed at Km. Ranno but the same was aimed at Asgar as the presence of Asgar on the spot is also not disputed from the testimony of Asgar himself. This fact also gets corroboration from the testimony of PW 4 Munni Lal. It is no longer a matter of doubt that merely because a witness has been declared hostile his testimony in toto is not to be believed. The courts can rely on such part of the testimony of a hostile witness which the court finds to be fully truthful. The testimony of the two hostile witnesses proves without any doubt that Asgar had gone to the shop where he paid Rs. 2/- for gram where appellant Shakir had also come who had demanded Rs. 2/- from Asgar which Asgar refused to give him. Once we accept this much of the prosecution story we find no difficulty in accepting the testimony of Mishri Lal and Km. Mallo that due to refusal on the part of Asgar to give money to Shakir got enraged which ultimately resulted in a shot being fired by Shakir. This shot instead of hitting Asgar accidently hit Km. Ranno who died. Therefore, there can not be any manner of doubt that Km. Ranno died due to a shot being fired by Shakir and he alone is responsible for the death of this child. Now we have to see what offence is made out against Shakir and what should be punishment for the said offence. 9. On the basis of the evidence in this case the learned Sessions' Judge had found the appellant to be guilty under section 302 Indian Penal Code read with section 301 Indian Penal Code. Section 301 Indian Penal Code reads as follows : "301. 9. On the basis of the evidence in this case the learned Sessions' Judge had found the appellant to be guilty under section 302 Indian Penal Code read with section 301 Indian Penal Code. Section 301 Indian Penal Code reads as follows : "301. If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor known himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person" whose death he intended or knew himself to be likely to cause." 10. A perusal of this section clearly indicates that if the act of the appellant was such by which he knew that it was likely to cause death of Asgar then the death of Ranno amounts to cuplable homicide. Hence in view of Section 301 Indian Penal Code the appellant is to be held guilty for causing death of Km. Ranno. The question that remains to be seen is whether the appellant should be convicted under section 302 Indian Penal Code. 11. It is in the evidence of PW 1 Mishri Lai that when Asgar refused to give money to Shakir appellant a quarrel ensued. It was at that stage that the appellant fired shot which instead of hitting Asgar had hit Km. Ranno who died. 12. The question is whether this sudden quarrel would attract Exception 4 to Sec. 300 Indian Penal Code. Exception 4 reads as follows : "Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel' or unusual manner." A perusal of the evidence of PW 1 Mishri Lal as also the version of the First Information Report establishes that all the four ingredients which are required to be present to bring the case within Exception 4 of Section 300 Indian Penal Code were present in this case. There is nothing in the evidence to suggest that the murder was committed with some premeditation. It is in the evidence that there was some quarrel between Shakir and Asgar. There is nothing in the evidence to suggest that the murder was committed with some premeditation. It is in the evidence that there was some quarrel between Shakir and Asgar. It was during the sudden quarrel that he had fired the shot. It may not, therefore, be said that Shakir appellant had taken undue advantage of the situation. It is not in the evidence that after firing a shot he repeated the fire or did any act which could be termed as an act of cruelty or something unusual to suggest that he intended to commit the said murder. As a matter of fact his firing and then effort to fly away only indicates that he had realised fits mistake in suddenly resorting to fitting which had taken the life of an innocent person. Therefore, the requirement of Exception 4 seems to be totally present in the facts and circumstances of this case. Hence it can not be said that the culpable homicide of Ranno was not amounting to murder as is defined, under the Indian Penal Code. Hence the case of the appellant being covered by Exception 4 he instead of being found guilty under section 302 Indian Penal Code should rightly be found guilty under section 304 Indian Penal Code. This appeal is partly allowed. Conviction and sentence of the appellant under section 302/301 Indian Penal Code is set aside. Instead it is found that appellant, Shakir was guilty of committing culpable homicide not amounting to murder and in view of the provision of section 301 Indian Penal Code the appellant would be guilty under section 304 Part II Indian Penal Code. Accordingly the appellant is convicted under section 304 Part II Indian Penal Code and is awarded 5 years' rigorous imprisonment coupled with a fine of Rs. 2500/-. The appellant is on bail. He shall surrender immediately to serve out the sentence. If the fine is deposited, which may be done within 6 months from the date of arrest of the appellant, then a sum of Rs. 2000/- out of it shall be paid over to the complainant Mishri Lal to compensate his daughter's death. In the event of default in the payment of fine, the appellant shall undergo one year's further rigorous imprisonment in lieu thereof. Appeal partly allowed.