JUDGMENT 1. -This appeal is directed against the judgment dated 11.3.1982 passed by the learned Sessions Judge, Bikaner convicting the accused-appellant of offence under section 304-A IPC and sentencing him to one and half years R.I. and to pay fine of Rs. 2,000/-, in-default of payment, to further undergo 6 months R.I. The appellant has also been convicted of offence under section 25 of the Arms Act and sentenced to one and half years R.I. and a fine of Rs. 500/-, in default of payment, to further undergo 2 months R.I. 2. The prosecution case in brief is that on 16.4.1980 at 2.50 p.m. one Manohar Lal PW 13 lodged FIR at Police Station, Nayasahar, Bikaner stating that he resides in the house of Rameshwar Lal Konkar PW 9 and along with Rameshwar Lal, his brother Balwan Singh PW 11 resides. At about 1.30 p.m., Balwan Singh was taking meal in the room and in another room Mst. Vimla W/o Rameshwar Lal, neighbour Mst. Dharma PW 12 and daughter Lilawanti aged 7-8 years PW 10 were sitting. At that time, accused-Mahendra Singh arrived there armed with 12 bore gun. He also stated that Mahendra Singh fired gun at Mst. Vimla, resulting into her death on the spot. On the basis of this information Police registered a case against the appellant for offence under section 302 IPC and 25 of the Arms Act. After usual investigation, Police submitted charge-sheet against the accused-appellant of offence under section 302 IPC and 25 of Arms Act. 3. The trial Court charged the appellant of offence for the said offences. The accused pleaded not guilty and claimed trial. The prosecution in support of the case, examined 16 witnesses and produced certain documents. The trial Court held that the prosecution has failed to establish that the accused-appellant fired the gun at Mst. Vimla with intention to murder her. However, the Court held that the accused acted rashly and negligently, causing homicidal death of Mst. Vimla and as such, convicted him of offence under section 304-A IPC and sentenced as stated above. 4. Assailing the judgment of conviction, Mr. Vimla with intention to murder her. However, the Court held that the accused acted rashly and negligently, causing homicidal death of Mst. Vimla and as such, convicted him of offence under section 304-A IPC and sentenced as stated above. 4. Assailing the judgment of conviction, Mr. Thakur, learned counsel appearing for the appellant contends that the prosecution case has not been supported by its own witnesses in as much as that the witnesses of the incident PW 10 Lilawanti, the daughter of the deceased, PW 11 Balwan Singh, the brother-in-law of the deceased, PW 12 Dharma and PW 13 Manohar Lal have been declared hostile. It is thus submitted that as the prosecution has failed to prove its case, the learned Judge has committed error in not acquitting the accused-appellant of all the charges. It is further submitted that the appellant could not has been convicted of offence under section 304-A IPC as the offence under said section cannot said to be a minor offence in relation to an offence under section 302 IPC. On the other hand, Mr. Purohit, Addl. Public Prosecutor has supported the judgment of the trial Court. 5. I have considered the rival contentions and perused the record. PW 10 Lilawanti aged 7-8 years is the daughter of deceased Mst. Vim la. She stated that on the date of incident in the afternoon, her mother Vimla was sitting on the chair in the room, at that time, the accused-Mahendra Singh arrived there. He was carrying gun with him. Mahendra Singh pointed gun towards her mother and said that he would kill her, on which, her mother said that latter he will kill her, where he will go. Thereafter his uncle Manohar Lal entered in the room. He took away the gun from the hands of the accused and triggered in the air. He found that there was no bullet in the gun. Thereafter, Manohar Lal put bullet in the gun and then triggered and fired. He also aimed the gun at Dharma but the gun did not click. Thereafter Mahendra took gun from the hands of Manohar Lal and fired at her Mammi which hit her. On account of fire on her mammi, she fell down. She also stated that at the time his uncle Balwan was also there. He also aimed the gun at Dharma but the gun did not click. Thereafter Mahendra took gun from the hands of Manohar Lal and fired at her Mammi which hit her. On account of fire on her mammi, she fell down. She also stated that at the time his uncle Balwan was also there. She also stated that after firing the gun, the accused threw the gun on the ground and ran away. PW I 1 Balwan Singh has stated that on the date of incident, in the afternoon, while his Bhabhi Mst. Vimla wasin the another room, the accused-Mahendra Singh arrived with gun in his hands. First he entered in the room in which he was sitting. He asked Mahendra that why he was not gone on duty, on which, he replied that his duty has been cancelled. He also stated that thereafter, he entered in the room of his Bhabhi. After sometime, he heard a gun fire from the room in which his Bhabhi was sitting. On hearing gun fire, he rushed to the said room and found that his Bhabhi was lying on the ground and she was bleeding profusly. He also stated that later on he heard that the gun was fired by Mahendra Singh. In view of this statement, he was declared hostile. PW 12 Mst. Dharma stated that at the time of incident she was in the house of deceased-Vimla. She stated that the accused-Mahendra arrived that carrying gun in his hands. The accused and Manohar Lal were joking and passing over the gun in the hands of each other. At that time, Manohar Lal also came there and he took out the bullet from the almeera and put it in the gun hereafter, Manohar Lal went out, she stated that she cannot say that who fired the gun. She also stated that on account of gun fire hitting Mst. Vimla, she died on the spot. PW 13 Manohar Lal has stated that on the date of incident, in a room he was talking along with Balwan, at that time, the deceased Mst. Vimla was in another room. Her daughter Mst. Lilawanti waulso there. At that time, accused-Mahendra Singh arrived there who is a conductor in the State Road Transport Corporation. He was carrying gun in his hands. Vimla was in another room. Her daughter Mst. Lilawanti waulso there. At that time, accused-Mahendra Singh arrived there who is a conductor in the State Road Transport Corporation. He was carrying gun in his hands. Balwan asked Mahendra Singh as to why he has not gone on duty, on which he replied that he has missed bus. Thereafter, Mahendra Singh went to room in which his Bhabhi was sitting. After taking food, he also sent in the room, where his Bhabhi deceased-Vimla was sitting. He saw that Mahendra Singh was talking with his Bhabhi and saying that he will fire at her, Mahendra Singh pressed trigger but there was no fire and as such, he thought that the gun is empty. Then, he took out the bullet from the almeera and put in the gun. He thereafter, triggered the gun but there was no fire. He then, entered in the room and said that the gun does not function and returned it to Mahendra Singh. Thereafter, Mahendra Singh triggered the gun in air but, there was no fire. Thereafter, he claimed it at his Bhabhi, which hit her, on account of which, she died on the spot. From the analysis of the evidence of these 4 hostile eye-witnesses, it clearly appears that Mahendra had gone to house of deceased Mst. Vimla with 12 bore gun. PW 10 Lilawanti the daughter of the deceased is very categorical in saying that the gun was fired by the accused-Mahendra Singh which hit her mother Vimla. So as Manohar Lal PW 13 has also stated that Mahendra fired gun, which hit Mst. Vimla. So far as Balwan Singh is concerned, though, he has not seen Mahendra firing the gun, but he is very categorical in saying that the accused-Mahendra gun in his hands entered in room in which the deceased-Vimla was sitting. He also categorical in saying that he heard the gun fire from the room in which Mst. Vimla was sitting. He immediately rushed to the room and found that Mst. Vimla was bleeding profusely and she died on the spot. Thus, his statement also corroborates statement of Mst. Lilawanti to the extend that the appellant was in the room in which Mst. Vimla died and he was with gun. To that extend, Dharma also supports the prosecution case. Simply because these witnesses have been declared hostile, the testimony cannot be totally rejected. Thus, his statement also corroborates statement of Mst. Lilawanti to the extend that the appellant was in the room in which Mst. Vimla died and he was with gun. To that extend, Dharma also supports the prosecution case. Simply because these witnesses have been declared hostile, the testimony cannot be totally rejected. The possibility cannot be ruled out that the accused- appellant was not sure that the gun was not in working condition and as such, without any intention or knowledge that his act may kill Mst. Vimla, triggered the gun, which, unfortunately hit her. Thus, in my view, the learned Judge has rightly concluded that the act of appellant was rash and negligent. 6. Dealing with the contention of Mr. Thakur that the offence under section 304-A IPC is a minor offence in relation to an offence under section 302 IPC, I do not find any substance in the contention. The learned counsel has relied upon the decision of the Apex Court reported in 1997 Cr.L.J. 3955. In the said case the Court held that the offence under section 306 IPC cannot be said to be minor offence in relation to an offence under section 302 IPC. Applying the ratio of the said case, it is submitted by Mr. Thakur that the essential ingredients of offence under section 302 IPC is the act with intention or knowledge of homicidal death, but in case of offence under section 304-A IPC neither intention nor knowledge of homicidal death is the essential ingredient, and as such offence under section 304-A IPC is not a minor offence in relation to offence under section 302 IPC. He further submits that serious prejudice has been caused to the accused-appellant in as much as he has not been charged for his negligence. So far as the judgment of Apex Court is concerned, that was the case of suicidal death and not of homicidal death but the case under section 304-A IPC and 302 IPC both false in the category of homicidal death. Thus, offence under section 304-A IPC being of homicidal death is a minor offence in relation to offence under section 302 IPC. The contention is accordingly rejected. 7. It is pointed out by the learned counsel that the appellant- Mahendra Singh has died. He has filed an application under section 394 Cr.P.C. for taking legal representatives of the deceased on record. The contention is accordingly rejected. 7. It is pointed out by the learned counsel that the appellant- Mahendra Singh has died. He has filed an application under section 394 Cr.P.C. for taking legal representatives of the deceased on record. The application is granted. Accordingly, legal representatives of the deceased-appellant. Ahendra Singh are taken on record. 8. In view of the aforesaid, I find no merit in this appeal and the same is accordingly dismissed.Appeal rejected. *******