JUDGMENT G. Malaviya, J. 1. The appellant has been convicted under Section 302, Indian Penal Code by the 1st Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 172/1991 for committing the murder of Anil Pandey on 7.12.1990 by a country made pistol at 6.45 p.m. in front of the house of the deceased in Mohalla Bakar Jai, police station Kotwali, Shahjahanpur In which he has been awarded the death sentence. The Sessions Judge has made usual reference to the High Court for confirmation of the death sentence also. 2. The prosecution case as disclosed by a written F.I.R. lodged by Vimal Pandey brother of the deceased at Police Station Kotwali on 7.12.1990 at 7.30 p.m. reveals that at about 6.45 p.m. on the day of the incident his neighbour accused Babu alias Ram Chandra was quarrelling with some person near his house. This was being witnessed by all the persons of the neighbourhood. Babu accused asked the persons who had assembled there to go to their houses. He also came to the house of the first informant and asked what were they watching and why were they not going inside the house. He farther said that in case they did not go inside their houses he would give them twenty beatings by shoe. The informant's father, mother and sister were standing on the platform of their house where his brother Anil Pandey was also standing. Anil Pandey asked Babu as to why was he calling bad names, more so, as they were going in. Hearing this Babu took out a country made pistol from the pocket of his pant and fired at Anil. Anil fell down on receiving the gun shot injuries. The incident was witnessed by Hari Om, Raju Halwai and many other persons in the locality. The condition of brother of the informant was very low. The father and other persons of the informant had taken the victim to the hospital. Babu had fired at the brother of the informant with the intention to kill him. Consequently the report was taken down. On the basis of this First Information report chik was prepared by head constable Deewan Singh, P.W. 10 at police station Kotwali at 7.30 p.m. The case was registered in the general diary. 3. The victim Anil Pandey was taken to the hospital on a rickshaw where he was examined by Dr. Consequently the report was taken down. On the basis of this First Information report chik was prepared by head constable Deewan Singh, P.W. 10 at police station Kotwali at 7.30 p.m. The case was registered in the general diary. 3. The victim Anil Pandey was taken to the hospital on a rickshaw where he was examined by Dr. Satya Singh P.W. 4 at 7.14 p.m. The patient was admitted as an emergency case and the relevant entries were made in the emergency register at SI. No. 9614. The patient was subsequently operated by Dr. A. C. Joshi, P.W. 11 on 8.12.1990 at 1.40 a.m. He had found the spleen of the patient ruptured. The stomach was ruptured at two places. He took out the pellet whereafter the wounds were stitched. He proved the bed head ticket EM. Ka-15 of the victim. Anil Pandey however died in the hospital on 9.12.1990 at 4.10 p.m. whereafter the head constable Deewan Singh P.W. 10 altered the case from Section 307 to 302, Indian Penal Code. 4. The post mortem on the body of Anil Pandey was conducted on 9.12.1990 at 3.30 p.m. by P.W. 5 Dr. V. C. Khanna. As the victim had been operated he had found the stitched wound as also the injuries which had been found by the doctor during the operation of the victim. The case was investigated by Sub-Inspector Badan Singh, P.W. 12 who, after completing the investigation, submitted the charge-sheet against the accused. The accused pleaded not guilty during the trial and claimed to be tried. 5. In the trial court the prosecution examined P.W. 1 Vimal Pandey brother of the deceased and P.W. 2 Anant Ram Pandey father of the deceased as eye-witnesses. The other witnesses examined in the case: were of formal nature. The accused, in his statement under Section 313, Cr. P.O., stated that on the day of the incident one person had come to his house from where he started calling bad names. He was also exhorting the accused to come out as he wanted to kill him. After hearing such bad names he, with a view to save him, came out along with the country made pistol telling his brother Gopal to see as to who was calling bad names. As soon as he came out his brother Gopal Krishna also came out asking him to give him the country made pistol. After hearing such bad names he, with a view to save him, came out along with the country made pistol telling his brother Gopal to see as to who was calling bad names. As soon as he came out his brother Gopal Krishna also came out asking him to give him the country made pistol. He also wanted to snatch the pistol. The country made pistol was loaded and in the effort of his brother to snatch the country made pistol from him which he was resisting, the loaded pistol went off which caused injuries to Anil Pandey. This resulted in people running helter-skelter. He and his brother also fled away on account of fear. He had identified the person who was calling him bad names as Santosh Kumar Bajpayee son of Sri Shambhu Dayal Bajpayee who was drunk and against whom he had lodged the report under Section 307, Indian Penal Code a few days earlier. The accused also stated in his statement under Section 313, Cr. P.C. that being the neighbour his terms with Anil Pandey and his family were cordial. The accused also examined his brother Gopal Krishna Saxena as D. W. 1 who made the identical statement as was given by the accused under Section 313, Cr. P.C, 6. On the asessment of evidence the Sessions Judge found the defence version given by the accused to be untrustworthy. Holding that in the present incident the accused due to his goondagardi and terror had killed a young man and therefore, the case required maximum punishment of death. the Sessions Judge convicted and sentenced the accused as has been mentioned herein before. In this appeal we have heard Sri A N. Awasthi and Sri V. C. Tewari, the Senior Advocate appearing on behalf of the appellant ass also Sri S. P. Tewari learned Addl. Government Advocate and Sri G. S. Chaturvedl who has appeared in this case on behalf of the complainant. 7. P.W. 1 Vimal Pandey in the trial court stated that he along with his brother and family members was residing on the day of the occurrence at 52, Shahjahanpur. Anil Pandey deceased was his elder brother. After the incident they had sold their house at Jaiwala and they had all shifted to village Mahaddiapur in district Kheri. 7. P.W. 1 Vimal Pandey in the trial court stated that he along with his brother and family members was residing on the day of the occurrence at 52, Shahjahanpur. Anil Pandey deceased was his elder brother. After the incident they had sold their house at Jaiwala and they had all shifted to village Mahaddiapur in district Kheri. He knew accused Ramesh Chanda alias Bebu from before the incident as he used to reside in a neighbouring house on rent. On the day of the incident at abut 6.45 p.m. he was inside his house. His father, mother, sister and brother Anil Pandey were also in the house. There were three bulbs on his door and one electric rod on the road. Bebu accused was fighting with some person on the street. Hearing the altercation he, his mother, father, sister and brother Anil Pandey went to their platform. Bebu accused came and asked them to go inside the house. His brother said "JA TO RAHE HAIN". The accused said go inside the house otherwise "BEES JUTE MARAENGE" and started calling bad names. His brother asked the accused not to call bad names whereupon he took out a country made pistol from the pocket of the pant and fired at Anil which struck him in the abdomen. His brother fell down. Bebu fled away. His brother was taken to the hospital on a rikshaw by his father and sister directing him to lodge the report at police station Kotwal. He wrote down the report at his residence which he took to the police station where it was lodged. His brother died in the hospital on 9.12.1990 on account of the injuries suffered by him. In the cross-examination this witness admitted that before the said incident there had been never any quarrel between the accused and his brother. He also said that when the accused had fired at his brother the distance between the two would have been hardly 1 or 1-1/2 feet. He further stated that he and his brother were students of B. A classes. He denied the suggestion that on account of enmity with many persons his family had left Mohaddiapur to which place they belonged and had come to Shahjahanpur. He further stated that he and his brother were students of B. A classes. He denied the suggestion that on account of enmity with many persons his family had left Mohaddiapur to which place they belonged and had come to Shahjahanpur. He also denied the suggestion that he was not present at the time of the incident or that he had not seen the incident himself and that the report was prepared subsequently with the deliberations and consultations with the investigating officer. He further denied the suggestion that the accused had not called bad names to the people of the locality or had not said to beat them with shoes etc., In the end he also denied the suggestion that the fire had hit the deceased when the country made pistol was being snatched. 8. P.W. 2 Anant Ram Pandey father of the deceased also made similar statement as was made by his son adding that when the accused was quarreling with some person people were also saying "BHAGO BHAGO" but he and his family members remained standing at the platform. The accused then came there and asked him whether they were going inside or should he beat them with shoes. When his son remonstrated then the accused said "BAHUT AKARTE HO", took out a country made pistol from his pocket and fired at Anil. He took his son to the doctor where he was treated but expired on 9.12.1990. He also said that witnesses Raj Kumar alias Raju and Hari Om were not going to give evidence as they had been terrorized by the accused. This witness had also admitted in his cross-examination that there had never been any quarrel between his son and the accused earlier. He had also denied the suggestion that his son was a student leader who had enmity with many persons. He also denied that he had enmity with many persons in his village. He further denied the suggestion that the accused before the incident was inside his house with his brother or that his brother came after the accused where in the process of snatching the country made pistol, the country made pistol went off resulting in the death of his son. As stated earlier the other witnesses examined in the case were of formal nature. All that may be mentioned here is that Dr. As stated earlier the other witnesses examined in the case were of formal nature. All that may be mentioned here is that Dr. V. C. Khanna who was examined as P.W. 5 and had conducted the post mortem examination had stated that the injuries suffered by the deceased in the ordinary course of nature were sufficient to cause death. 9. It has been argued before us by Sri V. C. Tewari that accepting the entire evidence in this case two things are more than clear ; firstly ; that there was an altercation between accused Ramesh Chandra and one more person somewhere outside the house of the deceased. Secondly the accused had no reason to fire at the deceased but on account of a gunshot coming from the country made pistol of the accused the deceased was injured who unfortunately died subsequently in the hospital. The basic contention of learned counsel for the appellant is that in view of admission by both the eye witnesses P.W. 1 Vimal Pandey and P.W. 2 Anant Ram Pandey that accused had absolutely no animosity against the deceased, the version of the accused in his statement under Section 313, Cr. P.C. as also the testimony of his brother D.W. 1 Gopal Krishna Saxena that the pistol went off by accident when the accused had come out of his house accepting the challenge of a stranger should be believed. In this connection learned counsel for the appellant wants to take recourse to the provisions of Section 80 of the Indian Penal Code. IT would be relevant to quote Section 80 which is as follows :- "80. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." 10. The contention of learned counsel for the appellant is that the case of the appellant is covered by Section 80, Indian Penal Code. However, we are not impressed with this argument. Section 80, Indian Penal Code is applicable to some lawful act done in a lawful manner by lawful means with proper care and caution. The contention of learned counsel for the appellant is that the case of the appellant is covered by Section 80, Indian Penal Code. However, we are not impressed with this argument. Section 80, Indian Penal Code is applicable to some lawful act done in a lawful manner by lawful means with proper care and caution. The activity of the appellant cannot be brought within the parameters of the provisions contained in Section 80 of the Indian Penal Code and as such we outright reject this contention that in view of Section 80, the appellant is entitled to get acquittal. Learned counsel for the appellant then contended that in this case the theory introduced by the eye witness that the accused while quarreling with some other person had started asking the onlookers to go inside their houses was totally absurd as there was no reason why the accused should have asked the onlookers to go inside when some stranger was calling bad names to him. His further contention is that in this background the version set up by the accused and his brother Gopal Krishna D.W. 1 appears to be more probable and, therefore, on the strength of the probabilities the defence version being more worthy of acceptance should be accepted and the prosecution version to the effect that the accused had asked the deceased to go inside and on the deceased remonstrating he took out the country made pistol and shot at him, should be rejected. His further contention is that the conduct of the appellant in accepting the fact that Anil Pandey deceased died on account of a shot of a country made pistol which was held by him which went off accidentally should be believed. His further contention is that there is no reason why the evidence and the version of the prosecution should be preferred over the version oil the defence, more so, when there is no enmity between the two. 11. On the other hand Sri S. P. Tewari learned Addl. His further contention is that there is no reason why the evidence and the version of the prosecution should be preferred over the version oil the defence, more so, when there is no enmity between the two. 11. On the other hand Sri S. P. Tewari learned Addl. Government Advocate as also Sri G. S. Chaturvedi the learned counsel appearing for the complainant have contended that once the appellant had admitted that he is responsible for the death of Anil Pandey his case does not fall under any of the exceptions set out under Section 300, Indian Penal Code with the result that the appellant may not escape conviction under Section 302, Indian Penal Code. 12. After hearing both the sides we feel that the case of the appellant is covered by exception 1 to Section 300, Indian Penal Code. It would be relevant to quote exception 1 in to at this place :- "Exception 1.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident." The above exception is subject to the following provisos :- First-That the provocation is not sought or voluntarily provoked is by the offender as an excuse for killing or doing harm to any person. Secondly-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." It was argued by the learned Additional Government Advocate and learned counsel for the complainant that this explanation cannot be applied in the case of the appellant inasmuch as it contemplates culpable homicide to be not murder if the offender was deprived of power of self control by a grave and sudden provocation whereafter the death was caused of the person who gave the provocation. Their contention is that since in this case the only allegation against the deceased is that he had told the accused that he was going inside and why was the accused calling them bad names, consequently, there was no reason for the accused to be deprived of the power of self control, inasmuch as ; this could not amount to any grave and sudden provocation at all. We have no doubt in our mind that the accused could not have any grave and sudden provocation from the side of the deceased Anil Pandey. But what we find is that admittedly some other person who had come outside was uttering such words which could have given grave and sudden provocation to the accused by which he could be deprived of his power of self-control. For this purpose it would be relevant to quote relevant portion of the statement of the accused recorded by the Court under Section 313, Cr. P.C.: "KAR1B 6-1/2 6.45 SHAM KE SAMAY ACHANAK EK AADMI MERE GHAR ME SAMNE AKAR MERA NAM LEKAR GANDI GANDI MAN BAHAN KI GALI DENE LAGA AUR JOR "2 SE CHILLA KAR KAHRAHA THA KI HARAMJADE GHAR SE NIKAL TUMHE JAN SE MAR DENOE. GALI KE SHUR SUNKAR MAINE APNI SURAKSHA KI NIYAT SE TAMANCHA LIYA AUR APNE BHAI GO PAL SE YAH KAHTE KI DEKHO GALI KAUN BAK RAHA HAI KYA BAAT HAI MAIN GHAR SE BAHAR AAYA.............." in view of this provocative challenge we are of the view that these utterances could have caused grave and sudden provocation to the accused and as such would attract Exception 1 to Section 300. Indian Penal Code. However, the question to be considered is if a person who causes death on account of such a provocation of a person who had not given the provocation, can he get the benefit of Exception 1 to Section 300, Indian Penal Code or not. In this connection it is relevant to notice the relevant portion of Exception 1 which reads : "or causes the death of any other person by mistake or accident." 13. This would demonstrate that the exception is also applicable to the cases where the death is caused not only of the person who gave the provocation but also to such cases where the death of any other person is caused by mistake or accident. 14. This would demonstrate that the exception is also applicable to the cases where the death is caused not only of the person who gave the provocation but also to such cases where the death of any other person is caused by mistake or accident. 14. In this case the prosecution witnesses have stated that the accused had categorically asked the deceased to go inside and when the deceased remonstrated then only a fire was shot by the accused at the deceased. We find substance in the contention of learned counsel for the appellant that the story that the appellant was asking the persons in the locality to go inside and not to watch his quarrel with a person who was calling him bad names and who had given his name as Santosh Kumar Bajpayee appears to be somewhat artificial. It appears that circumstances which led to the shot being fired hitting the deceased. due to Santosh Kumar Bajpayee calling bad names, have been withheld by the prosecution to book the accused under Section 302, Indian Penal Code. In any case we think that on the facts and circumstances of this case the contention of the defence on this point of provocation can be accepted and the accused can be extended the benefit of Exception (1) to Section 300, Indian Penal Code. This would mean that the conviction of the appellant under Section 302, Indian Penal Code has to be set aside and the appellant is to be convicted under Section 304, Indian Penal Code. Since there does not appear to be any intention on the part of the accused to cause death of Anil Pandey the conviction of the appellant shall be covered by Part II to Section 304, Indian Penal Code. Coming to the question of sentence it has been argued by the learned Addl. Government Advocate and the learned counsel far the complainant that the accused had caused the death of a young lad of 22 years and as such the maximum sentence of 10 years and some fine should be imposed on the appellant. However, we find that the appellant has been in jail since 1990 and was awarded death penalty by the judgment and order dated 24.4.1992. This means that he must be under the shadow of death for almost 2 years now. This itself has been a severe punishment for the accused. However, we find that the appellant has been in jail since 1990 and was awarded death penalty by the judgment and order dated 24.4.1992. This means that he must be under the shadow of death for almost 2 years now. This itself has been a severe punishment for the accused. Under the circumstances we think that a sentence of seven years' rigorous imprisonment will meet the ends of justice. 15. This appeal is accordingly allowed, in part, conviction of the appellant under Section 302, Indian Penal Code is set aside. He is convicted under Section 304, Part II, Indian Penal Code and Is awarded seven years' rigorous imprisonment for the same. The appellant is in jail. He shall serve out the sentence as modified by this Court. The reference made by the learned Sessions Judge for confirmation of the death sentence is hereby rejected. Appeal allowed.