Judgment Surya Kant, J. 1. Balkaran Singh, the appellant, who has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs. 1,000/- in default whereof to undergo further RI for three months and also having been sentenced to undergo RI for three years and to pay a fine of Rs. 250/- in default whereof to undergo further RI for one month under Section 27 of the Arms Act, by the learned Sessions Judge, Faridkot vide his judgment and order dated December 12, 1996, has filed this appeal against the said judgment and order. 2. The case as set up by the prosecution is that on 21.11.1995 at about 8.15 PM in the area of village Bhullar, P.S. Sadar Muktsar, the deceased Mukand Singh was sitting in the courtyard of his house along with his wife Harjinder Kaur the complainant, and his younger brother Jang Singh son of Bhag Singh. The electric bulb was aglow in the courtyard. The deceased started abusing his wife (complainant) and his elder brother Chand Singh as the latter was delaying the payment of some money owed to the deceased on account of apportionment of joint fodder cutting machine. The complainant advised her husband not to be harsh as his elder brother (Chand Singh) had promised to make the payment after selling the cotton crop. Meanwhile, their neighbour Balkaran Singh, appellant herein, who was carrying a licensed rifle of 315 bore came to his courtyard near the common wall and asked the deceased that there were sisters and daughters present in his house, so why was he (deceased) hurling abuses? At this, the husband of the complainant namely, Mukand Singh, replied that he was hurling invectives in his own house and who he (the appellant) was to stop him? At this, the appellant raised a lalkara by patting his chest and said that, "get ready, I am going to teach you a lesson for hurling abuses". The appellant thereafter fired a shot with his 315 bore licensed gun at the deceased which passed through his neck. The wife (complainant) and the younger brother of the deceased Jang Singh raised an alarm upon which the appellant fled away from his house along with the rifle. The appellant thereafter fired a shot with his 315 bore licensed gun at the deceased which passed through his neck. The wife (complainant) and the younger brother of the deceased Jang Singh raised an alarm upon which the appellant fled away from his house along with the rifle. Meanwhile, Sher Singh son of Mehan Singh resident of the village also came and of them arranged a jeep and brought Mukand Singh to Civil Hospital, Muktsar where the doctors started giving him treatment but he died after some time. According to the complainant, "the cause of grouse was that her husband used to abuse her and their family members and the appellant used to prevent the deceased from calling bad names, the level of their common wall was low and that on the date of occurrence also, her husband was abusing her and other family members at their house which the appellant took ill and injured her husband by firing a shot at him which caused his death." 3. It is not disputed that the occurrence having been reported to the police, FIR No. 172 was registered at Police Station, Sadar Muktsar on the same day at 11.30 PM on the statement of Harjinder Kaur, wife of the deceased. The Special report sent to the Sub Divisional Judicial Magistrate, Muktsar was received by him at 2.10 AM on 22.11.1995. 4. Dr. M.L. Kakkar (PW1), SMO, Civil Hospital, Muktsar, before whom deceased Mukand Singh was brought at 9.10. PM on 21.11.1995 in a very serious condition and who expired at 9.20 PM in the hospital on the same night, also conducted the post-mortem examination on the dead body of Mukand Singh and found the following injury on the deceaseds body : "1. Lacerated wound 15 cm x 8 cm involving whole of front and side of neck. Wound margins on left side were charred and inverted and on right side the margins were inverted. All soft tissues of front of neck were lacerated and blood vessels were exposed, larynx and hyoid were fractured. The trachea was intact and vertebral column was also intact. On dissection muscles were found lacerated, common carotid arteries were intact. Juglar on left side was injured, the trachea was full of blood clots. No foreign particle was seen in the wound." 5. The appellant was arrested on 30.11.1995 and on a disclosure statement Ex. The trachea was intact and vertebral column was also intact. On dissection muscles were found lacerated, common carotid arteries were intact. Juglar on left side was injured, the trachea was full of blood clots. No foreign particle was seen in the wound." 5. The appellant was arrested on 30.11.1995 and on a disclosure statement Ex. PL, his licensed rifle (Ex.P6) along with three cartridges was recovered. 6. In its endeavour to bring home the offence against the appellant, the prosecution examined ten witnesses including two eye-witnesses, namely, Harjinder Kaur, widow of the deceased Mukand Singh (PW4) and Jang Singh son of Bhag Singh, brother of the deceased (PW5), apart from Dr. M.L. Kakkar (PW1) who conducted the post-mortem and SI Nek Singh (PW8) who was the main Investigating Officer as well as ASI Ravel Singh (PW6) who too partly investigated the case. Lineman Gurcharan Singh of Punjab State Electricity Board (PW10) was examined to prove that there was electricity supply in the village at the time of occurrence. Remaining witnesses are formal in nature. 7. In his statement under Section 313 Cr.P.C., the appellant pleaded not guilty to the charge and claimed that he was falsely implicated due to enmity. 8. On an appreciation of the evidence led by the prosecution and having believed the statement of both the eye-witnesses the learned Sessions Judge held as follows : "11. The above statements of the PWs show that both of them have fully supported the case of the prosecution. The learned defence counsel urged before me that both the PWs examined in this case are near relatives and as such their evidence is not sufficient to prove the case against the accused. I do not find any force in the said contention. The occurrence took place at the house of Mukand Singh. It was about 8.30 PM and was the month of November. As such it must be quite dark at that time. Therefore, only the family members could be expected to be present there. It is in the evidence of both the PWs that electric light was burning there, and they saw that occurrence in that light. Both the PWs being close relatives it does not appear probable that they will leave the real assailant and falsely implicate the accused. Therefore, only the family members could be expected to be present there. It is in the evidence of both the PWs that electric light was burning there, and they saw that occurrence in that light. Both the PWs being close relatives it does not appear probable that they will leave the real assailant and falsely implicate the accused. It is common that along with the assailants some time, some innocent persons are also implicated, but it is rare that the real assailant is left out and some body else is substituted for him. The near relatives of the deceased are not likely to leave the real assailants and falsely implicate some body else." 9. The learned Sessions Judge also held that since the appellant used his licensed gun for an unlawful purpose, the ingredients of the offence under Section 27 of the Arms Act were also made out, therefore, the appellant was held guilty of committing of the offence under Section 302 IPC as well as under Section 27 of the Arms Act. 10. Shri T.S. Sangha, learned counsel for the appellant has made two-fold submissions. Firstly, he contended that as per the injury found by Dr. M.L. Kakkar (PW1) during post-mortem examination (Ex. PB) on the dead body of the deceased, the wound margins on the left side were charred and inverted whereas on the right side the margins were inverted and that all the soft tissues of the front of the neck were lacerated and blood vessels were exposed. According to Shri Sangha, as per Modis Medical Jurisprudence and Toxicology, such type of injury is suffered only if a fire arm is discharged from close to the body or in actual contact. On the other hand, the eye-witnesses, namely Harjinder Kaur (PW4) and Jang Singh (PW5) have deposed that the appellant fired at the deceased from a distance of 13-14 feet. Shri Sangha, thus, suggests that both the eye-witnesses were actually not present at the place of occurrence and have been introduced by the prosecution to falsely implicate the appellant. His second condition is that even if the prosecution story, as stated, is believed to be true, the appellant cannot be held guilty of an offence under Section 302 IPC and could at the best be held guilty of an offence under Section 304 Part-1 IPC. His second condition is that even if the prosecution story, as stated, is believed to be true, the appellant cannot be held guilty of an offence under Section 302 IPC and could at the best be held guilty of an offence under Section 304 Part-1 IPC. Reliance has been placed by him upon a Division Bench judgment of this Court in the case of Jaspal v. State of Punjab, 1996(3) RCR (Cri.) 104 and of the Apex Court in the case of Jagat Singh v. State of Haryana, AIR 1976 SC 2619. 11. In order to appreciate the first contention of Shri Sangha, we may reproduce the passage relied upon by him from Modis Medical Jurisprudence and Toxicology which reads as under : "Discipline of the Firearm. - If a firearm is discharged very close to the body or in actual contract, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder. The adjacent hair is signed, and the clothes covering the part are burnt from the flame of the gas. If the powder is smokeless, there will be no blackening of the skin, but there may be grayish or white deposit on the skin, round the wound. If the area is photographed by infrared and ultra violet light a smoke halo round the wound may be clearly noticed. No blackening or scorching is found, if the firearm is discharged from a distance of more than four feet. Moreover, these signs may be absent even when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body." (Emphasis applied). 12. From the nature of injury suffered by the deceased, as mentioned in the medico-legal report (Ex. PB), namely, wound margins on left side were charred and inverted and on the right side the margins were inverted, it appears that the appellant fired upon the deceased from a distance which might be 3 to 4 feet only and not from a distance of 13 to 14 feet was stated by Harjinder Kaur (PW4) and Jang Singh (PW5). PB), namely, wound margins on left side were charred and inverted and on the right side the margins were inverted, it appears that the appellant fired upon the deceased from a distance which might be 3 to 4 feet only and not from a distance of 13 to 14 feet was stated by Harjinder Kaur (PW4) and Jang Singh (PW5). However, from this variation in the approximate distance between the deceased and the appellant when the gun-shot was fired, it cannot be inferred that these two witnesses were not present and/or they did not witness the occurrence. 13. With a view to find out as to whether the eye-witnesses namely, Harjinder Kaur (PW4) wife of the deceased, and his brother Jang Singh (PW5) were present and witnessed the occurrence or not, a brief reference to their statements, coupled with other circumstances, may be made. While fully corroborating the prosecution case, Harjinder Kaur (PW4) in her examination-in-chief has stated that "Mukand Singh used to abuse us in our house under the influence of liquor and the accused used to object to it but Mukand Singh had been telling that he was no body of restrain him from abusing as he was abusing in his house." In her cross- examination, she has very candidly deposed that on the day of occurrence also, the deceased had firstly taken liquor and thereafter started abusing her and other family members. She as well as Jang Singh (PW5), stopped the deceased from abusing, however, "after urinating in the courtyard, Mukand Singh again started abusing her and other family members upon which the appellant wanted to stop Mukand Singh as there were sisters and daughters in his house. Jang Singh (PW5) in his examination-in- chief, which appears to be a natural version, has stated that before the occurrence took place, his brother Mukand Singh "had taken a quarter of liquor but he was not under the influence of liquor" and that after urinating, deceased Mukand Singh again started abusing his wife and his elder brother (Chand Singh). He has further deposed that the appellant asked the deceased as to why he was using filthy language and when Mukand Singh replied that he was abusing in his own house and the appellant was no body to stop him, that the appellant raised lalkara and fired from his rifle which hit the deceased on his neck. He has further deposed that the appellant asked the deceased as to why he was using filthy language and when Mukand Singh replied that he was abusing in his own house and the appellant was no body to stop him, that the appellant raised lalkara and fired from his rifle which hit the deceased on his neck. He has further truthfully admitted that "Mukand Singh used to take liquor daily". 14. At this stage, it may be useful to refer to the statement of Dr. M.L. Kakkar (PW1) who, while conducting post mortem examination on the body of deceased Mukand Singh found that "the stomach contained about 400 cc of semi- digested food mixed with liquid and smelling of alcohol." In his cross- examination, Dr. Kakkar has further deposed that "it is possible that liquid in large and small intestines could be alcohol." (emphasis by us). SI Nek Singh (PW8) who was the Investigating Officer, in his cross- examination has stated that "the common wall of the parties was 3-1/2 feet high". Gurcharan Singh PW 10, a Lineman of PSEB, has stated that on the night of 21.11.1995 the electricity supply was on in village Bhullar. The above mentioned prosecution witnesses have been subjected to lengthy cross-examination but we do not find any glaring contradiction and/or infirmity in their statements to disbelieve them especially the two eye-witnesses. The occurrence took place at 8.15 PM in the month of November. The gun-shot injury was caused to the deceased in the courtyard of his own house in the village. The presence of the wife of the deceased in her house at that point of time or the presence of the brother of the deceased, is expectedly natural. That apart, the statements of both the eye witnesses do not appear to have been tutored or actuated by any extraneous considerations. We are, therefore, inclined to accept their version and consequently, the first contention raised on behalf of the appellant, being devoid of any merit, is turned down. 15. That apart, the statements of both the eye witnesses do not appear to have been tutored or actuated by any extraneous considerations. We are, therefore, inclined to accept their version and consequently, the first contention raised on behalf of the appellant, being devoid of any merit, is turned down. 15. Coming to the second contention, namely, as to whether the case falls within Exception-4 to Section 300 IPC or not, it is well settled that to invoke the afore-mentioned exception, four ingredients, namely, (i) it was a sudden fight; (ii) there was no pre-meditation; (iii) the act was done in a heat of passion; and (iv) the appellant had not taken any undue advantage or acted in a cruel manner, are required to be satisfied, as held by their Lordships of the Supreme Court in Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094. 16. Both the eye-witnesses (PW4 and PW5) have plainly admitted that the deceased used to take liquor daily and after taking the same, was in the habit of abusing his own wife and other family members by using verminous language. It is the prosecutions own case that the appellant is an immediate neighbour and shares a common wall, the height of which was 3-1/2 feet only. It is also the complainants version that the appellant used to stop it. However, the deceased instead of mending his ways, rather questioned the appellant only as to who he was to stop the deceased from using abusive, vile and loathsome language as there were sisters and daughters of the appellant in his house. It has also come in the statement of PW4 and PW5 that on the date of occurrence also the deceased had taken liquor and was blasting his usual chorus in filthy language when the appellant asked him to stop the deceased from abusing from his (deceaseds) own house and at that moment due to sudden quarrel and in the heat of passion that the appellant caused gunshot injury to the deceased with his licensed gun. The sequence of events and the circumstances thus lead to an irresistible conclusion that the appellant had no pre-meditated intention to kill the deceased and there being a sudden quarrel preceding the gun-shot injury that the appellant killed the deceased in a heat of passion without taking any undue advantage of the situation. 17. The sequence of events and the circumstances thus lead to an irresistible conclusion that the appellant had no pre-meditated intention to kill the deceased and there being a sudden quarrel preceding the gun-shot injury that the appellant killed the deceased in a heat of passion without taking any undue advantage of the situation. 17. There is no denial that the appellant had women folk in his family consisting of his sisters and daughters and the height of his common wall with that of the deceased was 3-1/2 feet only. The foul language which the deceased was habitual to, must have become a source of constant nuisance and embarrassment to the family members of the appellant. Going by the traditional Indian culture where women folk is not subjected to such type of insulting or discommoding behaviour, it can be well imagined that the appellant lost his temper and in a heat of passion fired the shot at the deceased. The manner in which the occurrence took place does not suggest any undue advantage taken by the appellant. In these circumstances, we are of the view that the appellant is guilty of having committed the offence of `culpable homicide punishable under Section 304 Part-1 IPC and not of the "murder" punishable under Section 302 IPC. Accordingly, we partly allow this appeal and modify the judgment and order dated December 12, 1996 passed by the learned Sessions Judge, Faridkot to this extent and consequently sentence the appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further RI for three months. However, the conviction and sentence of the appellant under Section 27 of the Arms Act is maintained. Both the sentences shall run concurrently.