Judgment S.S.Saron, J. 1. This appeal has been filed against the judgment and order dated 24.11.1994 passed by the learned Additional Sessions Judge, Faridkot, whereby the appellant has been convicted for the offence under Section 307 of the Indian Penal Code (`IPC - for short) and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of six months. 2. Case FIR No. 4 dated 12.1.1992 (Ex. PA/1) was registered at Police Station City Muktsar for the offence under Section 307 of the Indian Penal Court (`IPC - for short) and Sections 25 and 27 of the Arms Act, 1959 on the statement (Ex. PA) of Rohtas Singh, Assistant Commandant, 69 Battalion, D. Coy. CRPF (PW-1). It is stated by Rohtas Singh (PW-1) that he is posted as Assistant Commandant, 69 Battalion, D. Coy. CRPF and his company had been put on duty for the Maghi fair at Muktsar. The company camped at Government Primary School Baghwali Street, Muktsar. The company was posted on duty at Gate Nos. 4, 6 and 7 of the Gurdwara Sahib, Muktsar. The company returned to Government Primary School after discharging its duty. Head Constable Sharda Nand (appellant) and Lance Naik Bhajan Singh were members of his company. Rohtas Singh had gone to his residence at Kalra Rice Mill, Muktsar. Mohd. Shakur was the mess constable of their company. At about 8.30 p.m., he received information at his residence that there had been firing in his company upon which he immediately came to Government Primary School, Baghwali Street. Then, the mess constable Mohd. Shakur told him that Head Constable Sharda Nand (appellant) and Lance Naik Bhajan Singh had taken some liquor and while he was distributing the food to Jawans, Sharda Nand and Bhajan Singh quarrelled on some matter upon which Sharda Nand shot a burst from his government sten-gun at Lance Naik Bhajan Singh and three bullets hit him on his right thigh, right flank and right shoulder as a result of which Bhajan Singh fell down and he handled him from his arm. When he (Rohtas Singh PW-1) reached at the spot substantial blood was oozing out from Bhajan Singh. Then he sent Bhajan Singh to Civil Hospital, Muktsar through Inspector Dhani Ram. When he (Rohtas Singh PW-1) reached at the spot substantial blood was oozing out from Bhajan Singh. Then he sent Bhajan Singh to Civil Hospital, Muktsar through Inspector Dhani Ram. He took into possession the sten-gun of HC Sharda Nand (appellant) and apprehended him at the spot and brought him to the Civil Hospital, Muktsar for his medical-examination. The reason of the quarrel was that meat had been cooked in the mess for the jawans. In the distribution of the meat cooked in the mess on that day there ensued a quarrel between them on which Sharda Nand shot a burst from the government sten-gun with an intention to kill Bhajan Singh and injured him. On the basis of the said statement, as already noticed, the FIR was registered. It was prayed that action be taken against H.C. Sarda Nand. The complainant heard his statement and it was affirmed as correct. From the said statement a case under Section 307 IPC and Sections 25 and 27 of the Arms Act was found to have been made out. The Police investigated the case. After completion of investigation, charge report (challan) in terms of Section 173 of the Code of Criminal Procedure, 1973 (`Cr.P.C. - for short) was filed in the Court of Sub Divisional Judicial Magistrate, Muktsar on 28.5.1992. The said Magistrate vide his order dated 31.7.1992 committed the case to the Court of Session as the offence under Section 307 IPC was exclusively triable by the said Court. The learned Additional Sessions Judge, to whom the case was assigned, charge-sheeted the appellant for the offence punishable under Section 307 IPC on 28.8.1992. The appellant pleaded not guilty to the charge and claimed trial. 3. The prosecution in order to prove its case examined Rohtas Singh, Assistant Commandant, D. Company (PW-1), Dr. V.K. Sobat, S.M.O., Eye Mobile Hospital, Sangrur (PW-2), Lance Naik Bhajan Singh (PW-4), Mohammad Shakur, Constable (PW-5), HC Gurtej Singh (PW-6) and Sub Inspector Chanan Singh, S.S.P. Office, Ferozepur (PW-7). Besides affidavits of formal witnesses, the Chemical Examiners report, Ex. PQ and report of the Serologist, Ex. PR were tendered in evidence and the prosecution evidence was closed. 4. V.K. Sobat, S.M.O., Eye Mobile Hospital, Sangrur (PW-2), Lance Naik Bhajan Singh (PW-4), Mohammad Shakur, Constable (PW-5), HC Gurtej Singh (PW-6) and Sub Inspector Chanan Singh, S.S.P. Office, Ferozepur (PW-7). Besides affidavits of formal witnesses, the Chemical Examiners report, Ex. PQ and report of the Serologist, Ex. PR were tendered in evidence and the prosecution evidence was closed. 4. The statement of the appellant in terms of Section 313 Cr.P.C. was recorded in which he stated that he had been falsely implicated as he had strained relations with Rohtas Singh (PW-1) and he was instrumental in getting him falsely involved in the case and that he was a vegetarian. 5. The learned trial Court after considering the evidence and material on record, as already noticed, convicted the appellant for the offence under Section 307 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months which order assailed in this appeal. 6. Shri Bipan Ghai, learned counsel for the appellant has contended that the prosecution witnesses Lance Naik Bhajan Singh (PW-4) and Constable Mohd. Shakur (PW-5) have resiled from their statements made before the Police and, therefore, the case against the appellant is not made out. Even otherwise assuming the case of the prosecution to be correct, there is no evidence on record to show that there was an intention on the part of the appellant to kill Lance Naik Bhajan Singh (PW-4) and in the absence of intention, the learned trial Court erred in convicting and sentencing the appellant for the offence under Section 307 IPC. 7. In response, Shri J.P. Bhatt, learned Assistant Advocate General, Punjab appearing for the respondent State has contended that from the evidence and material on record, the prosecution has fully established its case and there is no reason to interfere with the conviction or sentence of the appellant and, therefore, the appeal of the appellant is liable to be dismissed. 8. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. It would be appropriate to note that Bhajan Singh (PW-4) and Mohd. 8. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. It would be appropriate to note that Bhajan Singh (PW-4) and Mohd. Shakur (PW-5) during the trial of the case resiled from their statements as made before the Police in terms of Section 161 Cr.P.C. However, Rohtas Singh, Assistant Commandant, D. Company (PW-1) reiterated his version as given in the FIR, Ex. PA/1. Lance Naik Bhajan Singh (PW-4) is the stamped witness in the case. He has though not supported the case of the prosecution but has stated that on 12.1.1992 at about 8.30 p.m. the appellant had come to the mess in their camp housed at the Government Primary School for Girls, Muktsar. The appellant asked Bhajan Singh (PW-4) about the meals and Bhajan Singh asked him to go to the mess. Bhajan Singh at that time was taking his meal in the store. The appellant went back and Bhajan Singh (PW-4) resumed taking his meal. In the meantime, the appellant fired at him from his backside with the sten-gun which hit Bhajan Singh on his right shoulder, right side of the body and right thigh and left wrist. He fell down on receipt of these injuries and became unconscious. At that time, no person was present near him. On that day, meat, vegetable rice, chapatis had been cooked. The appellant asked him only about his food and said no other words. The said witness (Lance Naik Bhajan Singh PW-4) on the asking of the Additional Public Prosecutor was declared hostile, who cross-examined him. He was cross-examined with respect to the contradictions made by him in his statement before the Police. 9. Mohd. Shakur, Constable (PW-5) also appeared and stated that he did not witness any occurrence as he came later. The Additional Public Prosecutor on the ground that he was intentionally suppressing the truth also got him declared hostile. He was then cross-examined by the Additional Public Prosecutor and was confronted with his previous statement made before the Police. Besides, Sub Inspector Chanan Singh (PW-7) was examined. He had investigated the case and recorded the statement, Ex. PA, of Rohtas Singh (PW-1). The complainant had produced before the said Investigating Officer Chanan Singh (PW-7) one sten-gun along with magazines and 30 grounds of 9 mm which were taken into possession vide recovery memo, Ex. Besides, Sub Inspector Chanan Singh (PW-7) was examined. He had investigated the case and recorded the statement, Ex. PA, of Rohtas Singh (PW-1). The complainant had produced before the said Investigating Officer Chanan Singh (PW-7) one sten-gun along with magazines and 30 grounds of 9 mm which were taken into possession vide recovery memo, Ex. PB, HC Sham Singh and Rohtas Singh (PW-1) attested the said recovery memo. The appellant was also produced before the Investigating Officer at the Civil Hospital and he got him medically examined from the Civil Hospital and also took into possession the clothes of the injured after the same were made into parcels. The Investigating Officer prepared the rough site plan, Ex. PN, and lifted 5 empties of 9 mm, Exs. P-38 to P-44, which were taken into possession vide Ex. PO. He also lifted some blood-stained earth from the place of occurrence which was taken in possession vide memo, Ex. PP. He recorded the statements of the PWs. On the next day i.e. a day after the occurrence he recorded the statement of the injured. 10. As per the Chemical Examiners report, Ex. PQ, he was required to examine earth etc. for human blood and it was opined that blood was found on Ex. No. 1, i.e. earth and pieces were sent to Serologist, Government of India. In terms of the Serologists report, Ex. PR, it was opined that earth etc. was stained with human blood. 11. Rohtas Singh Assistant Commandant (PW-1) on whose statement (Ex. PA), the FIR was registered has supported the case of the prosecution in all respects. He has stated that on receiving information about the firing in his company in the mess, he reached the place of occurrence from his residence at the Rice Mill Muktsar. It is further stated that at 8.00 p.m. on 12.1.1992, after the jawans of his company became free from duty, they proceeded to the school for their stay. Lance Naik Bhajan Singh (PW-4) was the mess Incharge of the jawans of his company. Constable Mohd. Shakur was also attached with him. At about 8.30 p.m., Naik M.D. Borse Singh came and told him that the appellant had fired at Lance Naik Bhajan Singh. Taking Sandeep Yadav another Assistant Commandant along with him, he proceeded to the Govt. Primary School where the company was staying. Constable Mohd. Shakur was also attached with him. At about 8.30 p.m., Naik M.D. Borse Singh came and told him that the appellant had fired at Lance Naik Bhajan Singh. Taking Sandeep Yadav another Assistant Commandant along with him, he proceeded to the Govt. Primary School where the company was staying. He found that S.I. Parshotam had apprehended the appellant and a lot of blood had fallen at the place of the incident. The sten-gun of the accused was lying there which he got deposited in the armoruy. He got Lance Naik Bhajan Singh, the injured, sent along with Inspector Dhani Ram to Civil Hospital Muktsar. He also took the accused to Civil Hospital Muktsar for his medical-examination as he smelled of alcohol. He learnt that the accused and the injured had got flared up over the distribution of food. He produced the sten-gun along with magazine and 30 live cartridges besides 5 empty cartridges before the police which were taken in possession vide recovery memo Ex. PB. 12. In the circumstances, even though two of the prosecution witnesses i.e. Lance Naik Bhajan Singh (PW-4) and Constable Mohd. Shakur (PW-5) have resiled from their statements made before the police in terms of Section 161 Cr.P.C. however, from the evidence of the other prosecution witnesses coupled with the investigation carried out by SI Chanan Singh (PW-7), it is established that Bhajan Singh (PW-4) was injured with the burst of the sten-gun fired by the appellant. Therefore, merely because Bhajan Singh (PW-4) and Mohd. Shakur, Constable (PW-5) were declared hostile it is not a case from which it can be said that the sten-gun shots were not fired and Bhajan Singh (PW-4) was not injured. In fact, Lance Naik Bhajan Singh (PW-4) was injured in the case and the injuries suffered by him are established by the deposition of Dr. V.K. Sobat, SMO, Eye Mobile Hospital Sangrur (PW-2). On the day of the occurrence, the said doctor was posted as SMO, Civil Hospital Muktsar and he conducted the medico-legal examination of the injured Bhajan Singh and he found as many as 7 lacerated wounds on his person. The kind of weapon used was alleged to be firearm. The clothes bearing the corresponding marks of injuries were handed over to the police. The nature of injuries that were found on the person of Bhajan Singh (PW-4) cannot be said to have been self-suffered. The kind of weapon used was alleged to be firearm. The clothes bearing the corresponding marks of injuries were handed over to the police. The nature of injuries that were found on the person of Bhajan Singh (PW-4) cannot be said to have been self-suffered. Therefore, in the circumstances, in view of the medical evidence also, it is apparent that Bhajan Singh (PW-4) had suffered injuries due to the firing of a burst from the sten-gun of the appellant. As such, the prosecution case with respect to the incident having occurred i.e. due to the firing of sten-gun burst by the appellant has been duly established. 13. The question that, however, requires to be considered is whether there was an intention to kill so as to make out an offence of attempt to murder punishable under Section 307 IPC. In order to appreciate this aspect, it would be appropriate to notice the provisions of Section 307 IPC, which reads as under :- "Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempt by life convicts. - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." 14. A perusal of the above shows that the important aspect to be borne in mind in determining the question whether an offence under Section 307 IPC is made out or not is the intention or knowledge. Besides, the intention or knowledge of the accused must be such as is necessary to constitute murder. Section 307 IPC is in two parts. The first part envisages the doing of an act with such intention or knowledge and under such circumstances that the act done by the offender would cause death and he would be guilty of murder. This would constitute an offence of attempt to murder and is punishable for a term, which may extend to ten years and also fine. The first part envisages the doing of an act with such intention or knowledge and under such circumstances that the act done by the offender would cause death and he would be guilty of murder. This would constitute an offence of attempt to murder and is punishable for a term, which may extend to ten years and also fine. The second part relates to causing of hurt by such act i.e. having intention or knowledge and under such circumstances that by such an act death would be caused and the offender would be guilty of murder. This also constitutes an offence of attempt to murder. In this case, however, the punishment is up to imprisonment for life or to such extent as mentioned earlier. The substance of the offence is the intention or knowledge that the act done is such that death would be caused and the offender would be guilty of murder but death actually is not caused. 15. Therefore, to see the intention of the appellant as to whether he intended to commit the murder of Lance Naik Bhajan Singh (PW-4), it is to be seen whether the offence that he committed was such that had death been caused, it would be homicidal falling under Section 300 IPC. Section 300 IPC enjoins that except in the cases therein excepted culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. In the case in hand it is evident from the facts and circumstances that the appellant had no pre-meditation to commit the offence. It is on account of a sudden fight and at the spur of the moment over distribution of meat that the appellant gave a burst blow from his sten-gun on the person of Bhajan Singh (PW-4). Rohtas Singh, Assistant Commandant, D. Company (PW-1) stated that he had learnt that the appellant and the injured got flared up over the distribution of food. Therefore, this evidently is a case of sudden fight. Section 300 IPC, as already noticed, carves out certain exceptions where culpable homicide is not murder. Exception-4 relates to a case of sudden fight in the heat of passion and reads as under :- "Exception 4. Therefore, this evidently is a case of sudden fight. Section 300 IPC, as already noticed, carves out certain exceptions where culpable homicide is not murder. Exception-4 relates to a case of sudden fight in the heat of passion and reads as under :- "Exception 4. - 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 offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation. - It is immaterial in such cases which party offers the prosecution or commits the first assault." 16. In the present case, it is evident that the burst from the sten-gun was fired by the appellant in a sudden fit of passion without pre-meditation on a trivial issue of distribution of meat when they got flared up. In Sukhbir Singh v. State of Haryana, 2002(2) RCR(Crl.) 57 (SC) : 2002(3) SCC 327, the Honble Supreme Court held as follows :- "To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the Courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception." 17. The ratio of the above judgment is applicable to the case in hand. There is no allegation of the prosecution that there was pre-meditation on the part of the appellant. The ratio of the above judgment is applicable to the case in hand. There is no allegation of the prosecution that there was pre-meditation on the part of the appellant. Firing from the sten-gun was sudden and there was no such time gap between the quarrel and the fight which may have intervened for the passion to subside and thereby giving time to the appellant to come to normalcy. Besides, Dr. V.K. Sobat, S.M.O., Eye Mobile Hospital, Sangrur (PW- 2), who medico-legally examined the injured Bhajan Singh (PW-4) found as many as seven injuries on his person which were all with fire arms and were on the right thigh and antero-medial aspect of right thigh, right costal margin 15 cm. from the xiphisternum, right costal margin, on the top of right shoulder, on the back of right scapula region and on the left wrist joint. Injury No. 7 on the wrist joint was declared simple and for the other six injuries X-ray was got done. Regarding injuries Nos. 1 to 4 the report was NDA and regarding injuries Nos. 5 and 6, it was opined that there was fracture of spine of scapula. No callus information was there. Injuries Nos. 1 to 4 were also declared simple and injuries Nos. 5 and 6 were declared grievous. The report of the doctor in this regard is Ex. PE. It was declared that the injuries could be dangerous if the medical aid had not been given in time. Therefore, from the nature of injuries also it cannot be said that there was an intention to murder Bhajan Singh (PW-4). Although, for an offence of attempt to murder cause of injuries may not be essential but if they are there, they become a circumstance, which can be considered for the purpose of determining the intention. Therefore, from the above the case being one of a sudden fight and in the heat of passion, I am of the view that the Exception-4 to Section 300 IPC would apply, in which case there was no intention to commit the murder and, therefore, it can at the most be said to be a case of attempt to commit culpable homicide which falls under Section 308 IPC. 18. Section 308 IPC and its illustration are apposite and may be noticed :- "308. Attempt to commit culpable homicide. 18. Section 308 IPC and its illustration are apposite and may be noticed :- "308. Attempt to commit culpable homicide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration. - A, on grave or sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder A has committed the offence defined in this section." 19. The above illustration of Section 308 is apposite and in my view the case falls within the ambit of Section 308 IPC and is one of attempt to commit culpable homicide. 20. In terms of the above, the occurrence took place at the spur of the moment while meat was to be distributed amongst the jawans of the company and the case is one of attempt to commit culpable homicide within the meaning of Section 308 IPC. Accordingly, the conviction of the appellant for the offence under Section 307 IPC is liable to be modified to one under Section 308 IPC. As regards the sentence part, it may be noticed that the case is one of attempt to commit culpable homicide, which is of a lesser degree than an offence falling under Section 307 IPC. Therefore, the sentence of imprisonment is also liable to be modified accordingly. The learned counsel for the appellant has stated that after the conviction of the appellant by the trial Court, he has lost his job and this by itself is a sufficient punishment. It may also be noticed that considerable time has lapsed from the date of occurrence. Besides, the injured Bhajan Singh (PW-4) has himself resiled from his statement made before the police, which would show that he holds no rancour towards the appellant. 21. It may also be noticed that considerable time has lapsed from the date of occurrence. Besides, the injured Bhajan Singh (PW-4) has himself resiled from his statement made before the police, which would show that he holds no rancour towards the appellant. 21. Keeping in view the nature of the offence which has occurred due to a sudden fight and also the fact as stated by the learned counsel for the appellant, that the appellant has lost his job after his conviction; besides the fact that considerable time has lapsed and Bhajan Singh (PW-4), the injured has resiled from his earlier statement, it would be just and appropriate that the sentence of imprisonment is reduced to that already undergone which is about five months. However, the fine imposed upon the appellant is enhanced to Rs. 10,000/-, which the appellant shall pay and in default of payment of fine the appellant shall undergo rigorous imprisonment for six months more. 22. With the above modification in the conviction from Section 307 IPC to Section 308 IPC and the modification in the sentence to that already undergone and payment of fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months, the appeal is disposed of.