JUDGMENT 1. -This appeal is directed against the judgment dated 27.4.1995 passed by the Additional Sessions Judge, Nohar in Sessions Case No. 5/94, convicting and sentencing the accused-appellants as under : Ram Kumar 302, IPC Life Imprisonment and fine of Rs. 1,000/-. 27, Arms Act 3 years' imprisonment and fine of Rs. 100/-, in default one months's S.1. 336, IPC One month's S.I. 148, IPC Two years' R.I. and fine of Rs. 100/-. 326/149 IPC Two years' R.I. and fine of Rs. 100/, 324/149, IPC Six month's S.I. 341, IPC One month's S.I. 323/149, IPC One month's S.I. Dhanpat 148, IPC Two years' R.I. and fine of Rs. 100/-. 326/149, IPC Two years' R.I. and fine of Rs. 100/-. 324/149, IPC Six month's S.I. 341, IPC One month's S.I. 323/149, IPC One month's S.I. Om Prakash 148, IPC Two years' R.I. and fine of Rs. 100/-. 326/149, IPC Two years' R.I. and fine of Rs. 100/-. 324, IPC Six months' S.I. 341, IPC One month's S.I. 323/149, IPC One month's S.I. Pooran Mal 148, IPC Two years' R.I. and fine of Rs. 100/-. 326/149, IPC Two years' R.I. and fine of Rs. 100/-. 324/149, IPC Six months' S.I. 341, IPC One month's S.I. 323, IPC One month's S.I. Jagdish 148, IPC Two years' R.I. and fine of Rs. 100/-. 326, IPC Two years' R.I. and fine of Rs. 100/-. 324, IPC Six months' S.I. 341, IPC One month's S.I. 323, IPC. One month's S.1. Rohtash 148. IPC Two years' R.I. and fine of Rs. 100/-. 326, IPC Two years' R.I. and fine of Rs. 100/-. 324, IPC Six months' S.I. 341, IPC One month's S.I. 323, IPC. One month's S.I. 2. The facts of the case giving rise to the prosecution are that in the evening of 5.10.1993 the incident is alleged to have taken place in village Parlika of Hanumangarh District. It is alleged by the prosecution that at about 7.00 in the evening on that day one Brij Mohan was going towards the house of his elder brother when he was accosted by accused-Dhanpat. It is alleged by the prosecution that at about 7.00 in the evening on that day one Brij Mohan was going towards the house of his elder brother when he was accosted by accused-Dhanpat. He (Brij Mohan), therefore, returned home and requested his father to accompany to the house of his uncle and then Jotaram, the father and - Brij Mohan, the son started towards the house of the uncle when they were assaulted by the accused persons who were armed and who have been named by the witness in his deposition. On hearing and commotion other members of the family of the complainant came to rescue the complainant when they were also assaulted and, therefore, the uncle to whose place they were going, also came and after his arrival Ram Kumar who had gun in his hand used it and the bullets injured the uncle Sahib Ram who thereafter succumbed to the injuries and the accused persons were prosecuted for murdering Sahib Ram causing injuries to others. The prosecution has examined as many as II witnesses in support of its case. The learned Additional Sessions Judge on appreciation of oral and documentary evidence on record came to the conclusion of guilt of the accused and, therefore, convicted and sentenced them as aforesaid. All the sentences were ordered to run concurrently. 3. The conviction of the accused persons under section 302 of the IPC is basically challenged. PW 1 Brij Mohan, PW 2 Ugrasen, PW 3 Mahendra and PW 4 Sulochana are the eye-witnesses whose evidence was accepted by the learned Judge for coming to the conclusion of guilt. 4. PW 5 is Dr. Chandra Kumar who examined the injured witnesses, PW 6 Mangtu Khan is Assistant Sub-Inspector Incharge of the Police Station, PW 7 Gopal is constable incharge of the Malkhana, PW 8 Ranjit is the constable who deposited the seized articles in the Malkhana, PW 9 proves the seizure of the gun from possession of Ram Kumar, PW 11 is the doctor who conducted the post-mortem and proved homicidal death of Sahib Ram. PW 1 to PW 4 who are eye-witnesses are natural witnesses to the incident. PW 1 Brij Mohan who is injured was the person who wanted to go to Sahib Ram and invited his father to take him there and then they were assaulted by the accused persons. PW 1 to PW 4 who are eye-witnesses are natural witnesses to the incident. PW 1 Brij Mohan who is injured was the person who wanted to go to Sahib Ram and invited his father to take him there and then they were assaulted by the accused persons. This evidence of Brij Mohan is corroborated on all material particulars by PW 2 Ugrasen, PW 3 Mahenda and PW 4 Sulochana all of whom came there to resume and received injuries in the process at the hands of the accused persons. 5. It is pertinent to note that all the four witnesses have deposed the manner in which the assault took place and have stated that right from the inception Ram Kumar was armed with gun. It has been stated by PW 2 Ugrasen, PW 3 Mahendra and PW 4 Sulochana that they came to the scene of incident after hearing some gun shots and consequently it is obvious that gun fire was made earlier without causing injury to any person. All the witnesses are consistent in saying that the gun was fired again when Sahib Ram appeared on the scene and was hit by gun shot and gun fire was again resorted to by the accused persons while fleeing away from the scene of occurrence. The evidence duly corroborated by independent witnesses on all material particulars is such as cannot be disbelieved and the conclusion of guilt as reached by the learned Judge is proper. It cannot be disputed. 6. Very fairly, the learned counsel appearing on behalf of the appellants has submitted that even if such assault is assumed to have taken place, the circumstances as proved on record do not spell out a case under section 302 of the IPC. According to the learned counsel, the prosecution itself has claimed possession of gun by Ram Kumar and right from the time they intercepted Brij Mohan and his father who were going to the house of Sahib Ram. According to the prosecution the gun was used only as deterrent and gun was not fired though assault has taken place. According to the learned counsel, therefore, gun was used only to threaten and not as weapon of offence and there was no intention to kill any person by use of the gun and as factually the gun was fired earlier and no one received injury. According to the learned counsel, therefore, gun was used only to threaten and not as weapon of offence and there was no intention to kill any person by use of the gun and as factually the gun was fired earlier and no one received injury. The gun was fired when Sahib Ram was hit and again no one was injured. If this evidence is accepted, proves that injury caused to Sahib Ram was accidental and not intentional and consequently, there is no question of the accused persons being guilty of the offence under section 302, IPC. He, therefore, claims acquittal of the accused under section 302 1PC. 7. We have carefully considered the evidence on record. From scrutiny and reap-precaution of the evidence of PW 1 to PW 4 who are eye-witnesses and also injured in the incident it is obvious that the incident as alleged has taken place. It is proved that the gun was fired. It is also proved that twice the gun was used in air and once user resulted in a bullet hitting Sahib Ram causing his death. It is obviously an act done by Ram Kumar with the knowledge that his user of the gun will cause such bodily injury as would likely to cause death and this knowledge was shared by the others who participated in the assault and aware of the possession of the gun by Ram Kumar. In our opinion, therefore, it is a case of homicidal death not amounting to murder as the accused did not have the intention to cause death nor were accused having the intention of causing such bodily injury as must in all probability cause death. Their possession of the gun and its intemperate use as deterrent however cloths them with the knowledge that if they used the gun it is likely to cause death. They, therefore, cannot escape punishment of causing culpable homicide not-amounting to murder. To that extent the order of the learned Additional Sessions Judge is liable to be modified. In our opinion, interest of justice would be met if the sentence is reduced to that of 10 years' rigorous imprisonment. 8. In the result, the appeal partly succeeds and is partly allowed. The conviction and sentence of accused under section 302, IPC is set aside. In our opinion, interest of justice would be met if the sentence is reduced to that of 10 years' rigorous imprisonment. 8. In the result, the appeal partly succeeds and is partly allowed. The conviction and sentence of accused under section 302, IPC is set aside. Instead the accused-Ram Kumar is convicted under section 304 Part I, IPC and is sentenced to suffer rigorous imprisonment for a period of ten years. The other convictions and sentences to other accused-appellants are maintained.Appeal partly allowed. *******