JUDGMENT 1. -This D.B. Criminal Appeal has been filed against the judgment/order dated 21.12.1990 passed by the Sessions Judge, Sawaimadhopur in Sessions Case no. 45/89 "State v. Laddu Lal " whereby the accused-appellant has been convicted for the offence under section 302 IPC and sentenced to undergo imprisonment for life and a fine of Rs. 2001-, in default of payment of fine, to further undergo three months' rigorous imprisonment. 2. In short, the facts of the case are that Kalyan (PW 1) lodged a written report on 2.5.1989 at P.S. Ravanjana Dungar, District Sawaimadhopur to the effect that at about 12 O'clock in the noon Rugga and accused-appellant had some quarrel. The accused-appellant went to his house and returned back with a double barrel gun and opened fire upon Rugga, who died on the spot. Madan also received fire arm injuries on his head. Along with him (Kalyan PW 1), Ram Kumar, Hazari, Prabhu and Kishan were present at the place of occurrence. When informant was coming to Police Station along with the gun which he had taken from the accused after the incident, it was snatched by Jugraj Patwari. On the basis of this report a case (FIR No. 38/89) was registered for the offences punishable under sections 302, 307 IPC. The Investigating Officer proceeded to the place of incident. Site plan, panchayatnama were prepared. Post-mortem was conducted by PW 9 Dr. Babu Lal. After completing the investigation a charge-sheet was filed against the present appellant as well as against Jugraj in the Court of M.J.M. Sawaimadhopur, who committed the case for trial to the Court of Sessions Judge, Sawaimadhopur. 3. The learned Sessions Judge after hearing the Public Prosecutor and learned counsel appearing on behalf of the accused framed charge for the offence punishable under section 302 IPC against the accused-appellant and for the offence under section 201 IPC against Jugraj. Both the accused pleaded not guilty and claimed trial. 4. The prosecution examined ten witnesses. PW 1 Kalyan, PW 2 Narayan, PW 4 Prabhu Lal, PW 5 Kishan Gopal, PW 6 Ramkanwar, PW 7 Madan, PW 8 Mangi Lal were examined as the eye-witnesses to the incident. PW 9 Dr. Babu La] conducted the post-mortem. He has also examined accused-appellant on 2.5.1989 on the request of police and found ten injuries on his person. PW 1 Kalyan, PW 2 Narayan, PW 4 Prabhu Lal, PW 5 Kishan Gopal, PW 6 Ramkanwar, PW 7 Madan, PW 8 Mangi Lal were examined as the eye-witnesses to the incident. PW 9 Dr. Babu La] conducted the post-mortem. He has also examined accused-appellant on 2.5.1989 on the request of police and found ten injuries on his person. PW 10 Prahlad Rai is Head Constable who was incharge of Malkhana at the relevant time. 5. Statements of accused were recorded under section 313 Cr.P.C. The accused-appellant simply stated that statements of witnesses are false. Accused-Jugraj stated that he was not present at the place of incident. He has been falsely implicated in this case. 6. The learned Sessions Judge on the basis of the evidence produced before him acquitted accused-Jugraj for want of evidence, but held that accused-appellant-Laddu is guilty of committing murder of deceased-Rugga by inflicting fire arm injury, and convicted him for the offence punishable under section 302 IPC and sentenced as stated earlier. 7. Initiated, the learned counsel challenged the prosecution case and finding of the trial Court on various grounds, but after arguing the matter for some time, he submitted that he do not want to challenge the finding of the trial Court about the commission of offence and involvement of the accused, but he contended that even if the prosecution case is taken as it is, as put forward during trial it does not travel beyond Section 304 Part-II IPC because there was no motive, no enmity and no premeditation. It appears that initially some altercation took place and in the heat of passion this incident had taken place. fle also pointed out that as alleged by prosecution accused was having double barrel gun in his hand but he did not fire second shot. The injury was on thigh, the non-vital part of the body, and cause of death was due to excessive bleeding. 8. We have carefully gone through the entire evidence on record and judgment of the trial Court. The trial Court after careful scrutiny of evidence, reached on the conclusion that the cause of death is fire arm injury. Statements of eye-witnesses Kalyan, Prabhu Lal, Naray an, Kishan Copal, Ram Kunwar, Madan, Mangi Lal are reliable. Their presence at the place of occurrence has been proved. We see no reason to take a different view. The trial Court after careful scrutiny of evidence, reached on the conclusion that the cause of death is fire arm injury. Statements of eye-witnesses Kalyan, Prabhu Lal, Naray an, Kishan Copal, Ram Kunwar, Madan, Mangi Lal are reliable. Their presence at the place of occurrence has been proved. We see no reason to take a different view. There is nothing on the record to discredit the statements of above mentioned eye-witnesses. We are also satisfied that cause of death is the fire arm injury which was inflicted by the accused-appellant. 9. There is no universal view that when a single blow causes death conviction can only be under section 304 Part-II IPC. It all depends upon the part of the body where the injury has been caused, the nature of injury and other circumstances. In the instant case we agree with the learned counsel that there was no motive, enmity or premeditation. Initially there was some quarrel and exchange of abuses. Accused went to his house, returned with a gun and caused gun shot injury on thigh of Rugga resulting into his death due to excessive bleeding.It is also true that thigh is a non vital part of the body. No second shot was fired by the accused-appellant though he was having double barrel gun. As it has been held by the Supreme Court in a case Ram Swaroop v. State reported in AIR 1977 SC 664 that "where the murder was not premeditated but arose out of mutual fight, the offence falls under section 304 Part-I IPC. Therefore, taking an overall picture of the entire story it seems to us that it was not a case of premeditated or calculated murder, as such, this case falls under section 304-I IPC. 10. Therefore, this appeal is partly allowed. We set aside the conviction and sentence recorded against the accused-appellant under section 302 IPC and convict him under section 304-I IPC and sentence him to suffer rigorous imprisonment for a period of ten years and a fine of Rs. 5,000/-, in default, to further undergo sentence of one year's rigorous imprisonment.Appeal partly allowed. *******