Judgment Uma Nath Singh, J. 1. This criminal appeal arises out of a judgment passed by learned Additional Sessions Judge, Jind, in Sessions Case No. 62 of 7-12-2000, holding the accused-appellant guilty under Section 302, IPC and also Section 27 of the Arms Act, and sentencing him to undergo R.I. for life with a fine of Rs. 4,000.00 on the first count and RI for one year with a fine of Rs. 1,000.00 on the second count, in default of payment of fine, further undergo R.I. for six months. 2. The prosecution case is based on the FIR (Ex. P30) registered on 27-8-2000 at 12.30 p.m. under Section 302, IPC and Section 27 of the Arms Act, on the statement of Surjit (P.W. 1), He stated that he is a resident of Julana and has installed Bharat Brick Kiln Company there. He has three brothers. Tarif was the eldest, the complainant is younger to him and Subhash is the youngest. On 26-8-2000, Tarif left the house saying that he would attend a party in the house of Virender, resident of Village Meharara, who was working as registry Clerk in Tehsil Julana. Virender had constructed a house in Rindhana Colony, Julana, and was hosting a dinner for his friends on that occasion. Tarif and Ram Niwas son of Dhanpat, resident of Gharwali had also been invited in that party. Tarif did not return home till late in the night. His brother-in-law Anup Singh accompanied by the complainant went to the house of Virender to inquire about him. They reached there at about 11.15 p.m. and found Tarif standing in the street in front of the house of Virender with motorcycle. Tarif told them that Ram Niwas had given abuses to him and had left the place saying that he would return with a gun and kill him. They all the three were engaged in talking. At that time, Ram Niwas arrived there with a gun in his hand. On reaching there, he uttered to Tarif that he had abused him 15-20 days back. He would teach him a lesson. With these utterances, he fired a gun shot at Tarif with an intention to kill him. The gun shot hit him in his right knee. He also fired a second gun shot, which hit the deceased below the knee. On reaching there, he uttered to Tarif that he had abused him 15-20 days back. He would teach him a lesson. With these utterances, he fired a gun shot at Tarif with an intention to kill him. The gun shot hit him in his right knee. He also fired a second gun shot, which hit the deceased below the knee. They tried to apprehend the accused but he managed to escape with the gun. The complainant and Anup Singh carried Tarif to Civil Hospital, Julana, where he was given first aid by the doctor. Joginder son of Des Raj also reached there and arranged for a private vehicle. On being referred, they all took Tarif to PGI, Rohtak. However, he was declared dead there by the doctor. Davinder, resident of Kheri Sampla, told the complainant that earlier 15-20 days back, some altercation had taken place between them over some monetary transaction. On that count, the accused harboured a grudge and has murdered Tarif by firing a gun shot. 3. We have heard learned Counsel for the parties and perused the records. 4. Learned counsel for the appellant contended that presence of the eye-witnesses at the scene of occurrence itself is doubtful. The police did not record the FIR on receipt of a medical ruqa and it was recorded after the police visited the PGIMS, Rohtak. On the other hand, learned State counsel supported the impugned judgment and tried to justify the reasoning. 5. The prosecution has examined as many as 15 witnesses. Surjit (P.W. 1) is the complainant and also an eye-witness of the incident. HC Pawan Kumar (P.W. 2) was posted as Moharir Head Constable at Police Station Jalana. He received some parcels containing case property. His evidence on affidavit is Ex. P3. He Rajinder Singh (P.W. 3) was entrusted four parcels by Moharir Head Constable Pawan Kumar on 29-8-2000. He deposited the same in the Forensic Science Laboratory on the same day. His evidence on affidavit is Ex. P4. Constable Vijay Kumar (P.W. 4) carried the special reports to be delivered to the Illaqa Magistrate, the DSP and the SP. Jind. Dr. S.C. Nawal (P.W. 5) was the Medical Officer, General Hospital, Panipat. He was posted at Community Health Centre, Julana. He had given first aid to the deceased and sent a medical ruqa (Ex. P5) to the police for information. Dr. Jind. Dr. S.C. Nawal (P.W. 5) was the Medical Officer, General Hospital, Panipat. He was posted at Community Health Centre, Julana. He had given first aid to the deceased and sent a medical ruqa (Ex. P5) to the police for information. Dr. Anil Kumar Hooda (P.W. 6) is an orthopaedic consultant. He was on emergency duty in the intervening night of 26/27-8-2000 at PGIMS, Rohtak. Deceased Tarif had been brought to the emergency department at 12.55 p.m. on 27-8-2000. An information (Ex. P6) had also been sent to the Police Post In-charge, PGIMS, Rohtak. Dr. S. S. Dahiya (P.W. 7) conducted the postmortem of the deceased. Anup Singh (P.W. 8), brother-in-law of the deceased, is another eye-witness of the incident. Joginder Singh (P.W. 9) met the deceased-Tarif, in Hospital, Julana. On enquiry, Tarif disclosed that he was shot by accused Ram Niwas. Ved Pal (P.W. 10) joined the police investigation. In his presence, accused had suffered a disclosure statement (Ex. PI6), regarding his licenced gun used in firing at the deceased. Pursuant to the disclosure statement (Ex. P.16), a double barrel gun of 12 bore with 15 live cartridges of the like bore was recovered. Kulwant (P.W. 11) is a cousin of deceased-Tarif. He had seen deceased-Tarif and the accused involved in quarrel over some money transaction. He and his nephew Davinder had intervened at that time. Virender Singh (P.W. 12) was posted as Assistant Sub-Inspector, Police Station, Safidon. On receipt of a medical ruqa (Ex. P5) from Community Health Centre, Julana, he rushed to PGI, Rohtak, to record the statement of the deceased but he was declared dead before he reached there. He has also been associated with the investigation. Sunder Singh (P.W.13) is an Arms Licence Clerk in the D.M. Office, Jind. He had produced the original record regarding arms licence issued in favour of accused-appellant Ram Niwas. He had also proved issuance of the arms licence (Ex. P26). The licence was valid upto 13-7-2002. Constable Dilbag Singh (P.W. 14) prepared the site plan (Ex. P28) on being asked by the SHO, PS Julana. He prepared the site plan with correct marginal notes. Balbir Singh (P.W. 15) was the Sub-Inspector, Civil Lines, Hissar. He has recorded the statement (Ex. P1) of Surjit (P.W. 1). He also sent the statement to Police Station, Julana, with his endorsement for registration of a formal FIR. 6. P28) on being asked by the SHO, PS Julana. He prepared the site plan with correct marginal notes. Balbir Singh (P.W. 15) was the Sub-Inspector, Civil Lines, Hissar. He has recorded the statement (Ex. P1) of Surjit (P.W. 1). He also sent the statement to Police Station, Julana, with his endorsement for registration of a formal FIR. 6. Accused-appellant Ram Niwas, in his statement under Section 313, Cr. P.C. pleaded false implication due to suspicion. He produced Ram Phal (D.W. 1) in his defence. D.W. 1 was an employee of the Haryana State Electricity Board posted at Julana. He produced the record to show that on 26-8-2000, there was a power failure at 23.05 hours and the power was restored only at 23.35 hours in the intervening night of 26/27-8-2000. 7. From the perusal of the statements of aforesaid witnesses, it appears that complainant Surjit (P.W. 1) and Anup Singh (P.W. 8), brother-in-law of the deceased, are the eye-witnesses. Kulwant (P.W. 11), a cousin of the deceased, had seen him involved in a quarrel with the accused over some money transaction, which is shown to be the motive for the quarrel. All other witnesses are connected with the investigations. Surjit (P.W. 1) stated that he has three brothers, including deceased-Tarif. Deceased was the eldest one. On the date of incident, the deceased told him that he would visit the house of one Virender to participate in a dinner. The accused was also one of the invitees. The deceased did not turn up till 11-00 p.m. He being accompanied by Anup Singh (P.W. 8) went to the house of Virender to bring his brother along. He reached at about 11.15 p.m. The deceased was about to set out at his motorcycle for home. He was present in the street in front of the house of Virender. However, the deceased told him that accused-Ram Niwas indulged in abuses with him and left the place with a threat that he would bring his gun and kill him. In the meantime, the accused reached there carrying his gun and fired a gun shot at the deceased. The deceased collapsed on the ground after the gun shot had hit his right knee. The accused fired second gun shot again hitting the deceased on leg, below the right knee joint. Despite his intervention with P.W. 8 to apprehend the accused somehow managed to escape. The deceased collapsed on the ground after the gun shot had hit his right knee. The accused fired second gun shot again hitting the deceased on leg, below the right knee joint. Despite his intervention with P.W. 8 to apprehend the accused somehow managed to escape. The deceased was immediately carried to the Civil Hospital, Julana, where he was given first aid with dressing of his wounds. He was referred to the PGIMS, Rohtak, by the doctor concerned. Joginder Singh (P.W. 9) also joined them in the hospital at that time. On reaching PGIMS, Rohtak, the deceased was attended by the doctor but he was declared brought dead. According to P.W. 1, the deceased succumbed to the injuries caused by the accused. His police statement (Ex. P1) was recorded by SI Balbir Singh (P.W. 15) in the premises of the PGIMS, Rohtak, on 27-8-2000. He has proved his signature on the document. He was also associated with the investigation. The police visited the scene of occurrence; lifted the blood-stained earth and sealed it into a parcel; and the seal of the Investigation Officer was handed over to ASI Virender Singh (P.W. 12). The I.O. also prepared a rough site plan of the place of occurrence with correct marginal notes as pointed out by him. In his lengthy cross-examination, he has denied any other motive for commission of murder of the deceased by a third person. In his cross-examination, he has stated that another eyewitness Anup Singh (P.W. 8) also accompanied him in the hospital at Rohtak and other members of the in laws side of the deceased reached the hospital in the company of his younger brother-in-law Bhoop. ASI Virender Singh (P.W. 12) accompanied by SI Balbir Singh (P.W. 15) had reached there at about 10 or 10.30 a.m. on 27-8-2000. At that time also, Anup Singh (P.W. 8) was present there. He has clarified that except him and P.W. 8, none else was present with the deceased in the street at the time of occurrence and others were attracted to the scene of occurrence only having heard the reports of gun shots. However, none of the inmates of the house of host Virender came out. Within 5 minutes of the incident, they arranged for a rehri and the deceased was shifted to the hospital in injured condition. However, none of the inmates of the house of host Virender came out. Within 5 minutes of the incident, they arranged for a rehri and the deceased was shifted to the hospital in injured condition. He has categorically stated the position of the deceased at the time of incident. The accused fired gun shots while the deceased was facing him from a distance of 8 feet. He has precisely given the location of the gun shot injuries on the body of the deceased. When the deceased was about to collapse after having received the first gun shot, he received the second gun shot injury and fell down on the ground. In the proceedings under Section 174 Cr. P.C., the police officer has also noted only two gun shot injuries on the person of the deceased. He has also told the police officer that the deceased had suffered two gun shot injuries, which was also confirmed and even mentioned in the proceedings under Section 174, Cr. P.C. He has also clarified that having reached Julana, he called the doctor from his residence, but the doctor did not inquire about his relationship with the deceased. Only name of Joginder Singh (P.W. 9) was entered in the ruqa by the doctor as the person, who had brought the injured to the hospital. Even at the time of examination of the deceased by the doctor at PGIMS, Rohtak, only the name of Joginder Singh was mentioned as a person escorting the deceased. This witness stated hat he has given the name of Joginder Singh (P.W. 9) to the doctor. He stated that he has no explanation to say as to why his name was omitted as one of the person escorting the injured and also that of Anup Singh (P.W. 8). He has precisely given the time when he reached the Community Health Centre, Julana, and when he left for Rohtak. They reached Julana at 11.30 p.m. and left the Julana Hospital on reference for Rohtak at 11.45 p.m. Rohtak was situated at a distance of 32 kms. They reached PGIMS, Rohtak, within half an hour in a Tata Sumo, engaged for that purpose. He has also mentioned that the deceased was wearing two brown colour juttis. He is also an income-tax assessee and is a respectable person. He has strongly denied the defence suggestion that they were drunk at the time of incident. They reached PGIMS, Rohtak, within half an hour in a Tata Sumo, engaged for that purpose. He has also mentioned that the deceased was wearing two brown colour juttis. He is also an income-tax assessee and is a respectable person. He has strongly denied the defence suggestion that they were drunk at the time of incident. According to him, the police had reached within 10 minutes of their arrival in Julana Hospital, at the time when they were about to leave for PGIMS, Rohtak. Another eye-witness Anup Singh (P.W. 8) is the brother-in-law of the deceased. He has stated that on 26-8-2000 at about 7.00 p.m., besides him, the deceased and complainant Surjit (P.W. 1) were present in his house at Julana. The deceased had told him that he had been invited by Virender to join him at a dinner to be hosted by him to celebrate the construction of a new house at Raindhana Colony. The deceased also told that the accused was also one of the invitees. The deceased did not return home by 11.00 p.m. They were waiting for him and, hence, he and the complainant went to the house of Virender to bring the deceased back. They found him standing near the motorcycle in a lane in front of the house of Virender. He was also told by the deceased about verbal dual with the accused and also exchange of abuses. He was also told that the accused had threatened to kill the deceased and had gone to bring his gun. In the meantime, the accused reached there from northern side, while carrying a gun in his hand. He uttered to the deceased that 15 days back he had abused him, therefore, He would see him. The accused fired a gun shot, hitting the deceased near his right knee. He again fired second gun shot, hitting the deceased on the same leg near the knee joint. Thereafter, the accused fled away with the gun. The deceased had fallen on the ground. He was shifted in injured condition to the Community Health Centre, Julana, by him and the complainant (P.W. 1), Joginder Singh (P.W. 9) had also reached there by that time. The doctor gave the deceased the first aid and then referred him in injured condition to the PGIMS, Rohtak, because his condition was serious. He was shifted in injured condition to the Community Health Centre, Julana, by him and the complainant (P.W. 1), Joginder Singh (P.W. 9) had also reached there by that time. The doctor gave the deceased the first aid and then referred him in injured condition to the PGIMS, Rohtak, because his condition was serious. They arranged for a private vehicle and shifted the deceased to the PGIMS, Rohtak. He succumbed to the injuries and was declared brought dead by the doctor. He clarified that all the three brothers, namely, the complainant, the deceased and Subhash with their families resided jointly in one house. He identified the accused in the electric light. He has also clarified that the accused was standing at a distance of 7 of 8 feet from the deceased, when he fired the gun shots. He has reiterated that by the time the doctor of the Community Health Centre, Julana, had reached the hospital from his residence, Joginder Singh (P.W. 9) had also reached there. His statement was recorded by the I.O. at 5.00 p.m. on 27-8-2000. He has denied all the defence suggestions contraiy to the prosecution case and also denied that he is a brought up witness. Another relevant witness is Joginder Singh (P.W. 9). On 26-8-2000 at about 12.00 midnight, he was present in his house at Julana. He learnt that deceased-Tarif had been injured in a gun shot incident. He had overheard two persons going through the street, hence he rushed to the hospital and found the deceased lying in the hospital in the injured condition. On enquiry from the deceased, this witness was told that accused Ram Niwas had fired gun shots at him in front of the house of Virender, in presence of Surjit (P.W. 1) and Anup Singh (P.W. 8). Since the condition of the deceased was se-rtbus, after giving first and and dressing of the wounds, he was referred and shifted to the PGIMS, Rohtak, by the doctor for treatment. According to this witness, he, complainant Surjit and another eye-witness Anup Singh (P.W. 8) accompanied the deceased to the PGIMS, Rohtak. He was declared brought dead there by the doctor. He recollected the time about quarter to twelve or a little more, when he reached the hospital at Julana. His house was situated at a distance of 500 meters from the hospital. He was declared brought dead there by the doctor. He recollected the time about quarter to twelve or a little more, when he reached the hospital at Julana. His house was situated at a distance of 500 meters from the hospital. When he reached the hospital, Anup Singh was standing outside the dressing room and the doctor had not arrived there as yet. At that time, Surjit (P.W. 1) was not seen, who accompanied the doctor later on. He along with the eye-witnesses accompanied the deceased to the PGIMS, Rohtak. None of them was under the influence of liquor. Within 10 minutes of his arrival in the hospital, they left for Rohtak as per advice. He has clearly answered the Court question by stating that when he attended the deceased inside the emergency room, he was also alone and blood was oozing out of his wound. In his cross-examination, he has reiterated that the deceased told him that the accused had fired two gun shots, which hit him. He also personally examined the wounds and found that there were two wounds. The I.O. reached the PGIMS, Rohtak, to record the statement of the. complainant for the purpose of FIR at 8.00 a.m. on 27-8-2000. The SHO was accompanied by an ASI and two Constables. At that time, he and Surjit (P.W. 1) were present by the side of the dead body. The police remained in the hospital upto 11.00 a.m. The post-mortem was conducted under the supervision of the ASI thereafter. He had also accompanied the dead body. ASI Virender Singh (P.W. 12) stated that the post-mortem examination was conducted in his supervision. In his presence, statement (Ex. PI) of complainant Surjit Singh was recorded. He had received blood-stained clothes of the deceased from the autopsy Surgeon and handed them over to SI Balbir Singh (P.W. 15) vide Ex. P24. He has also supported the lifting of blood-stained earth in his presence. The accused suffered a disclosure statement (Ex. P. 16) and his licenced gun was recovered. The seal of the SHO was entrusted to him. The empty cartridge (Ex. P20) and the live cartridges (Ex. P21) were seized in his presence. The accused also produced his arms licence, which was seized vide Ex. P27. He signed the recovery memo. Later on, the investigation was handed over to him. He got the site plan (Ex. The seal of the SHO was entrusted to him. The empty cartridge (Ex. P20) and the live cartridges (Ex. P21) were seized in his presence. The accused also produced his arms licence, which was seized vide Ex. P27. He signed the recovery memo. Later on, the investigation was handed over to him. He got the site plan (Ex. P28) prepared from the draftsman and recorded his statement under Section 161, Cr. P.C. He has mentioned in his cross-examination that ruqa (Ex. P5) was received from the Community Health Centre, Julana, at 12.25 a.m. (night). He entered his departure report in the daily diary at 12.25 a.m. itself. In reply to a Court question, he has clarified that before he left for the PGIMS, Rohtak, at 12.25 a.m. on receipt o f ruqa (Ex. P5), he had come to know that accused-Ram Niwas had fired gun shots at deceased-Tarif. He came to the Community Health Centre, Julana, on his way to Rohtak, where some people were present. They disclosed the name of the assailant, as Ram Niwas. However, he did not record their formal statements. According to him, during investigation, it was found that empty cartridge was lodged in the left chamber of the gun, which was locked. The moment the gun was unlocked, the ejecter system fished out the empty cartridge. However, he clarified that the pellets were not available at the scene of occurrence. It was a pucca brick street. He has also denied all the defence suggestions contrary to the prosecution case. SI Balbir Singh (P.W. 15) was posted as the SHO in Police Station, Julana. He has also investigated the case with ASI Virender Singh (P.W. 12). He recorded the statement (Ex. P1) of the complainant and sent it vide his endorsement (Ex. P2) for registration of a formal FIR. He also prepared the inquest (Ex. P9) and handed over the dead body to the doctor for the post-mortem examination with an application (Ex. P8). He lifted the blood-stained earth from the scene of occurrence and made it into a sealed parcel with his seal BS vide Ex. P25. The seal after use was handed over to ASI Virender Singh (P.W. 12). He also recorded the statement of Anup Singh (P.W. 8). The accused suffered a disclosure statement regarding a double barrel gun used in the commission of offence. P25. The seal after use was handed over to ASI Virender Singh (P.W. 12). He also recorded the statement of Anup Singh (P.W. 8). The accused suffered a disclosure statement regarding a double barrel gun used in the commission of offence. This witness seized the gun with an empty cartridge and 15 live cartridges. He also recorded the statement of ASI Virender Singh (P.W. 12) under Section 161, Cr. P.C. After completion of the investigation, he put the challan under Section 173, Cr. P.C. He has proved all the exhibits prepared by him during the investigation. He had inspected the condition of the dead body, including the nature and seat of the injuries. He mentioned this fact is column Nos. 10 and 11 of the inquest report (Ex. P9). However, in his cross-examination, he has admitted that only after the autopsy, the nature of the injuries was clarified that it was only one gun shot injury, one being the entry wound and the another being the exit wound. He has also stated that one lamp post was available in the house of Virender Singh and the electricity could be used. Constable Vijay Kumar (P.W. 4) was sent with a special report as per entry at Sr. No. 11, dated 27-8-2000 at 1.30 p.m. entered in the daily diary. He has denied the defence suggestion that the FIR is ante time. 8. Thus, from the analysis of the aforesaid evidence, it appears that the prosecution witnesses have given the details of the incident stating the precise time and the manner, in which the incident took place. The evidence of the eye-witnesses (P.W. 1) and (P.W. 8) do not lose the credibility only on account of minor variations. As per the medical record, Joginder Singh (P.W. 9) has been shown to have accompanied the deceased in both the hospitals. Joginder Singh (P.W. 9) has categorically mentioned that both the eye-witnesses were present. Looking to the urgency and seriousness of the matter, Dr. S.C. Nawal (P.W. 5) could not prepare the MLR but after first aid and dressing of the wounds, he immediately referred the case to the PGIMS, Rohtak. He also sent a medical ruqa (Ex. P5) immediately to the Police Station. In his cross-examination, he has admitted that 10-15 persons were accompanying the injured when he was brought to the hospital. S.C. Nawal (P.W. 5) could not prepare the MLR but after first aid and dressing of the wounds, he immediately referred the case to the PGIMS, Rohtak. He also sent a medical ruqa (Ex. P5) immediately to the Police Station. In his cross-examination, he has admitted that 10-15 persons were accompanying the injured when he was brought to the hospital. He has also stated that deceased-Tarif was conscious and responded to his questions. This supports the evidence of P.W. 9 that when he enquired about the incident from the deceased, he gave the name of the assistant. Both the eye-witnesses have also supported each other. That apart, the medical evidence indicated that the deceased died of gun shot Injury. The accused suffered a disclosure statement leading to the recovery of the gun in question. Further vide FSL report about the gun (Ex. P22), the gun was found to be in working condition and the empty cartridge was found to have been fired from the left barrel of 12 bore DBBL gun and not from any other fire-arm of the same bore. Thus, the involvement of the accused in commission of offence is proved beyond doubt. However, looking to the circumstances and the background of the case that only one gun shot was fired as in the statement of Dr. S.S. Dahiya (P.W. 7), Autopsy Surgeon, it has come that there was one entry wound and one exit wound and that; the gun shot hit on the leg of the deceased and the deceased (died of excessive haemorrhage, (as there was no attempt to supply blood to compensate the blood loss), it would be difficult to hold that the accused had an intention to cause death of the deceased. It appears that he was provoked by exchange of abuses and, therefore, he fired a gun shot. Had there been any intention, he would have caused gun shot on the vital part of the body. It appears from the evidence of P. W. 5 that the deceased remained at the Community Health Centre, Julana, for about half an hour, where he was given only the first aid. It has also come in the evidence of Joginder Singh (P.W. 9) that the deceased was bleeding profusely and nothing was being done to stop it. It appears from the evidence of P. W. 5 that the deceased remained at the Community Health Centre, Julana, for about half an hour, where he was given only the first aid. It has also come in the evidence of Joginder Singh (P.W. 9) that the deceased was bleeding profusely and nothing was being done to stop it. Further it appears from the evidence of P.W. 5 that from 11.50 p.m. to 12.20 a.m. (midnight), the deceased was at Julana Hospital itself and he reached the PGIMS, Rohtak, at about 12.55 a.m. where he was declared brought dead. It has come in the evidence of P.W. 7 that blood loss was not compensated, therefore, the deceased succumbed to the injuries on account of lack of timely medical care to stop the bleeding. 9. Thus, we hold that his case is covered under Section 304, Part-II, IPC as it appears that Exception-IV to Section 300, IPC would apply in this case. Hon ble the Apex Court in an identical matter reported in 2003 (Suppl) 2 JT (SC) 94 : 2003 Cri LJ 4315; Sukhdev Singh V/s. Delhi State (Govt. of NCT of Delhi) has taken a similar view. In that case, during a scuffle, the accused took out his pistol and fired. His first shot missed and hit P.W. on thigh, whereas another shot caused death of the deceased. In the instant case, only one gun shot was fired and that too on the knee, therefore, conviction recorded by the impugned judgment under Section 302, IPC would not stand. Hence, the impugned judgment is set aside and instead the accused is convicted under Section 304, Part II, IPC and sentenced to, undergo ten years R.I. Thus the appeal succeeds in part. 10. Hence, this Criminal Appeal No. 532-DB of 2003 is disposed of, accordingly.