Judgment N.N. Mathur, J.-This appeal is directed against the Judgment dated 29.07.2003 passed by the learned District and Sessions Judge, Jaisalmer, convicting the appellant-Narayan Singh of offence under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. 2,000/-in default of payment of fine to further undergo six months rigorous imprisonment. He has also been convicted of offence under Section 3/25 of the Arms Act and sentenced to two years rigorous imprisonment and to a fine of Rs. 500/-, in default of payment of fine to further undergo three months rigorous imprisonment. He has further been convicted of offence under Section 27 of the Arms Act and sentenced to three years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo three months rigorous imprisonment. The appellant Mohan Singh has been convicted of offence under Section 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 2,000/-in default of payment of fine to further undergo six months rigorous imprisonment. 2. Briefly stated the prosecution case is that on 20.03.2000 at about 10:00 PM, when deceased Shailendra Singh alongwith PW. 6 Radhakishan and PW. 8 Prem Singh reached in Village Dhauva, near the house of appellant-Mohan Singh, they found the road blocked by the stones throughly scattered. Shailendra Singh, who was driving the jeep, stopped the same and gave a call to appellant-Mohan Singh to remove the stones. In response to the call, Mohan Singh and his son Damodar Singh came out of the house and refused to remove the stones. PW. 8 Prem Singh gave a call to PW. 2 Liladhar. At that time, the second appellant-Narayan Singh came out of the house carrying a gun in his hand. He abused deceased-Shailendra Singh and threatened him of giving lesson for asking to remove the stones. It is further alleged that the first appellant-Mohan Singh exhorted his son Narayan Singh to shoot Shailendra Singh. Accordingly, Narayan Singh fired at Shailendra Singh, on account of which, he fell down. Mohan Singh, Damodar Singh and Narayan Singh took their heels from the spot. The gun shot attracted PW. 7 Om Singh and PW. 5 Khewar Singh. PW. 8 Prem Singh and PW. 6 Radhakishan alongwith deceased-Shailendra Singh proceeded to the hospital in a Rickshav of PW. Accordingly, Narayan Singh fired at Shailendra Singh, on account of which, he fell down. Mohan Singh, Damodar Singh and Narayan Singh took their heels from the spot. The gun shot attracted PW. 7 Om Singh and PW. 5 Khewar Singh. PW. 8 Prem Singh and PW. 6 Radhakishan alongwith deceased-Shailendra Singh proceeded to the hospital in a Rickshav of PW. 2 Liladhar, as the key of the Jeep could not be located. Shailendra Singh scummed to the injuries in the hospital at Jaisalmer. PW. 8 Prem Singh submitted a written report Exhibit P-7 to PW. 16 Ram Singh, in-charge of the Police Station. The report was sent to the Police Station Kherli with police constable Pratap Singh. Police registered a case of offence under Sections 302, 341 IPC and proceeded with the investigation. The police prepared a site memo. The dead-body of Shailendra Singh was sent for post-mortem. The accused-persons were arrested. The gun was recovered from the possession of appellant Narayan Singh. After usual investigation, police laid charge-sheet against the appellants for offence under Sections 302, 302/34, 341 IPC, 3/25 and 3/27 of the Arms Act. 3. The appellants pleaded not guilty of the charges levelled against them and claimed trial. The prosecution adduced oral and documentary evidence to prove its case. The appellants in their statements under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. Appellant-Mohan Singh stated that deceased Shailendra Singh made assault on him when he came out of the house on a call given to him. He became unconscious. Shailendra Singh entered in his house and took up quarrel with his son Narayan Singh. He was not aware, as to who fired the gun from inside the house. The appellant Narayan Singh stated that on the next day of Holi, he was at his residence in the night. He came out of the house hearing the shouts of his father. He found that deceased- Shailendra Singh threshing his father. On his intervention, deceased-Shailendra Singh took out a knife and assaulted him. In the scuffle, deceased lost the grip as such the knife fell down. He took up the gun from inside the house. Deceased- Shailendra Singh tried to snatch the gun from his hand. In the scuffle, the gun went off and accidentally hit Shailendra Singh. On his intervention, deceased-Shailendra Singh took out a knife and assaulted him. In the scuffle, deceased lost the grip as such the knife fell down. He took up the gun from inside the house. Deceased- Shailendra Singh tried to snatch the gun from his hand. In the scuffle, the gun went off and accidentally hit Shailendra Singh. He went to the police station and made statement in that regard. He was arrested by the police. He has also stated that deceased Shailendra Singh after consuming liquor used to take up quarrel with people. Shailendra Singh was his friend. His relations with Prem Singh, Radha Kishan, Om Singh and Liladhar were hostile. The incident occurred as a result of ill-advise of the said persons to the deceased- Shailendra Singh. The defence examined three witnesses in support of its case. The learned trial Court having found the prosecution case substantially proved, convicted and sentenced the appellants in the manner indicated above. 4. Challenging the conviction, it is submitted by the learned Counsel that the learned trial judge has failed to appreciate the prosecution evidence in right perspective. He has made an endeavor to point out certain infirmities in the statements of the prosecution witnesses particularly the eye-witnesses. In the alternate, it is submitted that the case against appellant-Narayan Singh does not travel beyond Section 304 Part-II IPC. As regards appellant-Mohan Singh, it is vehemently argued that there is no evidence worth the name to hold that he shared common intention with Narayan Singh to commit murder of Shailendra Singh. On the other hand, learned Public Prosecutor has supported the judgement of the learned trial Court. 5. We have carefully scrutinized, critically analyzed the entire evidence on record and considered the rival contentions. 6. The prosecution case is broadly based on the statements of the eye-witnesses namely PW. 2 Liladhar, PW. 6 Radhakishan and PW. 8 Prem Singh. Before we proceed to deal with the evidence of the eye-witnesses, it will be convenient to refer the medical evidence. 7. PW. 9 Dr. V.K. Jindal has stated that the autopsy on the dead-body of deceased- Shailendra Singh was conducted by a Medical Board consisting of three members, to which he was also one of the member. The Board noticed the following injury vide Post-Mortem Report Exhibit P-8:-“(1) There is an ante mortem gun shot wound of entry present. 7. PW. 9 Dr. V.K. Jindal has stated that the autopsy on the dead-body of deceased- Shailendra Singh was conducted by a Medical Board consisting of three members, to which he was also one of the member. The Board noticed the following injury vide Post-Mortem Report Exhibit P-8:-“(1) There is an ante mortem gun shot wound of entry present. Size 5 cm x 3 cm x lung deep. The wound is oval in shape, margins are inverted and abraised with multiple tattooing marks of size varies from ½ cm to 1 ¼ cm x ½ cm to 1 cm. Tattooing is more on lateral side of wound and partly on lower outer and upper outer side of the wound. The wound is situated on the Lt. mid clavicular region and full of blood and multiple pieces of Lt. clavicle bone. Lt. subclavian vessels ruptured. Some metal pieces (pellets) collected from the sub culteneous tissues of the wound and preserved for chemical examination.” 8. In the opinion of the Board, the cause of death was hemorrhagic shock due to excessive hemorrhage due to gun shot injury to left subclavian vessels and left lung. Two copies of letter were sent to the Chemical Examiner, Jodhpur. A sealed and labelled tin containing two glass viols (i) marked A containing metal pieces collected from gun shot wound (ii) marked B Blood in EDTA for blood grouping. Two X-ray films were also sent with the X-ray report. 9. PW. 13 Dr. Jugal Kishore has stated that he was a Medical Jurist in the Board, which conducted autopsy on the dead body of Shailendra Singh. He has referred to the Post-Mortem Report Exhibit P-8. Thus, the prosecution has succeeded in establishing that Shailendra Singh died of homicidal death. 10. PW. 2 Liladhar, an eye-witness, lived near the place of incident. He stated that on the date of incident, he was sleeping outside the house on a cot within courtyard. In front of his house, there is a public way. A jeep stopped in front of the house of Mangal Singh. Some stones were lying scattered on the road, as such, the vehicle had to stop. Deceased- Shailendra Singh gave a call to the appellant-Mohan Singh, enquiring as to why the stones were lying on the road, obstructing the way. He also asked Mohan Singh to remove the same. A jeep stopped in front of the house of Mangal Singh. Some stones were lying scattered on the road, as such, the vehicle had to stop. Deceased- Shailendra Singh gave a call to the appellant-Mohan Singh, enquiring as to why the stones were lying on the road, obstructing the way. He also asked Mohan Singh to remove the same. Mohan Singh and Damodar Singh came out of the house. An oral altercation ensued between deceased- Shailendra Singh on the one side and the accused persons on the other side. PW. 8 Prem Singh gave him a call. He also reached on the spot. Some ladies standing outside the house of Mohan Singh asked him to rush to the spot and save situation otherwise somebody may die. Before he could intervene, on exhortation by Mohan Singh, Narayan Singh fired the gun hitting Shailendra Singh. On account of which, he fell down. All the three accused-persons namely Mohan Singh, Narayan Singh and Damodar Singh ran away. Shailendra Singhs brother PW. 7 Om Singh also arrived on the spot. Shailendra Singh was put into the jeep and rushed to the hospital. There is a lengthy cross-examination but nothing substantial has been elicited to discredit the testimony of this witness. 11. PW. 6 Radhakishan has stated on 20.03.2000 at about 9:45 PM, he alongwith PW. 8 Prem Singh in a jeep driven by deceased Shailendra Singh reached at Village Dhauva from Jaisalmer. At about 10 or 10:15 P.M, when they reached near the house of Ram Singh in Village Dhauva, some stones were found lying scattered blocking the main road. He advised deceased- Shailendra Singh to take out the vehicle from the side, on w,hich Shailendra Singh stated that on earlier occasion also, the public way was obstructing, as such, he would like to confront Mohan Singh on the question of obstructing the public way. Deceased- Shailendra Singh stopped the vehicle and got down. PW. 8 Prem Singh gave a call to the appellant-Mohan Singh, on which, Damodar came out. Deceased. Shailendra Singh fired him for obstructing the public way. Some oral alteracation took place between deceased- Shailendra Singh and the members of the appellants family. While, the oral alteraction was going on, appellant-Narayan Singh came out armed with a gun. He was exhorted by appellant-Mohan Singh to finish Shailendra Singh. Deceased. Shailendra Singh fired him for obstructing the public way. Some oral alteracation took place between deceased- Shailendra Singh and the members of the appellants family. While, the oral alteraction was going on, appellant-Narayan Singh came out armed with a gun. He was exhorted by appellant-Mohan Singh to finish Shailendra Singh. The appellant-Mohan Singh alleged to have uttered the words as follows:- ysÞns[k D;k jgk gS Bksd deh.k ds xksyh bl ij eksgu flag ds dgus ls ukjk;.kflag us 'kySUnz flag ij cUnwd ls xksyh pykbZß 12. Appellant-Narayan Singh fired the gun shot on Shailendra Singh, on account of which, he fell down. Appellants-Mohan Singh, Narayan Singh and Damodar Singh (since acquitted) ran away. Deceased- Shailendra Singh was taken to the hospital in a jeep. He scummed to the injuries in the hospital while under treatment. There is a lengthy cross-examination. Suggestions have been given with respect to the plea raised by the appellants in their defence. The witness denied all the suggestions made to him. Nothing substantial has been elicited to discredit the testimony of this witness. 13. PW. 8 Prem Singh is an another important eye-witness, who was in the jeep with deceased- Shailendra Singh at the relevant time. The statement of this witness is also almost on the same line of PW. 6 Radhakishan. He stated that on the date of incident, he alongwith PW. 6 Radhakishan in a jeep driven by deceased-Shailendra Singh reached at village Dhauva. They found stones lying scattered in front of the house of appellant-Mohan Singh, which blocked the main road. Radhakishan advised Shailendra Singh to take the jeep from the side, on which, he stated that on earlier occasion also, the public way was blocked by Mohan Singh. Thus, all of them got down from the jeep and gave a call to Mohan Singh, on which, Damodar Singh came out. An oral altercation took place between the deceased- Shailendra Singh, PW. 6 Radhakishan on one side and Damodar Singh and his father appellant-Mohan Singh on the other side. At that time, appellant-Narayan Singh came out armed with a gun. Mohan Singh exhorted Narayan Singh in the following voice: a eksgu flaysÞns[krk D;k gSa dehuk vk x;k gS brus esg ds dgus ls ukjk;.kflag us xksyh 'kySUnz flag ij pykbZß 14. 6 Radhakishan on one side and Damodar Singh and his father appellant-Mohan Singh on the other side. At that time, appellant-Narayan Singh came out armed with a gun. Mohan Singh exhorted Narayan Singh in the following voice: a eksgu flaysÞns[krk D;k gSa dehuk vk x;k gS brus esg ds dgus ls ukjk;.kflag us xksyh 'kySUnz flag ij pykbZß 14. He stated that Narayan Singh fired the gun shot on Shailendra Singh, which hit his chest, on account of which, he fell down. Deceased- Shailendra Singh was taken to the hospital, where he scummed to the injuries. There is a lengthy cross-examination but nothing substantial has been elicited to discredit the testimony of this witness. 15. PW. 4 Satyanarain has stated that on the date of incident he heard gun shot fire while sleeping in the house. He came out and rushed to the place of incident. He found the jeep of Shailendra Singh in front of the house of Mohan Singh. Stones were lying scattered on the main road. Deceased- Shailendra Singh was lying injured in the jeep. He found Radhakishan, Prem Singh, Om Singh, Khewar Singh and Liladhar on the spot. They were searching key of the jeep. Shailendra Singh was taken to Jaisalmer in the three-wheeler of Liladher. On the way, Shailendra Singh was shifted to the jeep. The entire incident was narrated to him by Radhakishan. He was told that appellant-Narayan Singh fired the gun shot heating deceased- Shailendra Singh. There is a lengthy cross-examination but nothing has been elicited to discredit the testimony of this witness as well. 16. The statement of PW. 7 Om Singh is also almost on the same line. He is the elder brother of deceased- Shailendra Singh. He stated that on the date of incident he had gone to see his brother Balkishan in the jeep. He returned to Village Dhauva at about 9:30 PM. He found the road blocked in front of the house of Mohan Singh on account of stones lying scattered. However, he managed to move ahead by taking the jeep from side. In front of the house of Narayan Singh, Damodar Singh, Narayan Singh himself , Satyanarain etc were consuming liquor. The accused-persons and their associates took up quarrel with him and threatened that they will not allow the jeep to go ahead. He however avoided the quarrel with the accused-persons. In front of the house of Narayan Singh, Damodar Singh, Narayan Singh himself , Satyanarain etc were consuming liquor. The accused-persons and their associates took up quarrel with him and threatened that they will not allow the jeep to go ahead. He however avoided the quarrel with the accused-persons. After sometime, a jeep arrived there driven by Shailendra Singh. It was occupied by Prem Singh and Radhakishan. An oral altercation took place between them and the appellants. On a call given by deceased- Shailendra Singh, Damodar came out. On being exhorted by Mohan Singh, Narayan Singh fired gun shot hitting deceased- Shailendra Singh. He was taken to the hospital in the jeep. Nothing has been pointed out in the cross-examination to discredit the testimony of this witness. 17. In pursuance of the information given by the appellant- Narayan Singh while in custody vide Exhibit-P-23, two single barrel guns, pallets and gun powder were recovered vide Exhibit P-25. The recovered articles were sealed and packed on the spot. They were sent to the Forensic Science Laboratory. It is not necessary to deal with the link evidence as the same has not been challenged by the learned Counsel for the appellants. The Ballistic Report Exhibit P-24 shows that the guns recovered were seviceable firearms. 18. Thus, the evidence of the eye-witnesses i.e., PW. 2 Liladhar, PW. 6 Radhakishan and PW. 8 Prem Singh is natural and consistent. Nothing has been brought out from which any doubt can cast on their creditability. They have stood to the test of cross-examination as well. The statements of these three eye-witnesses further find corroboration from the statements of PW. 4 Satyanarain and PW. 5 Khewar Singh and PW. 7 Om Singh, who reached on the spot just after the incident. The statements of the eye-witnesses also finds corroboration from the medical evidence and other incriminating circumstances referred to above. Thus, our scrutiny of the evidence reveals that prosecution has successfully established the guilt against the appellant-Narayan Singh beyond reasonable doubt. .19. As regards the nature of offence, it is submitted by Shri Joshi that as the incident took place all of a sudden and the appellants had no intention to kill Shailendra Singh, as such the offence does not .travel beyond Section 304 Part-II IPC. .19. As regards the nature of offence, it is submitted by Shri Joshi that as the incident took place all of a sudden and the appellants had no intention to kill Shailendra Singh, as such the offence does not .travel beyond Section 304 Part-II IPC. In support of his contention, learned Counsel has placed reliance on a decision of the Honble Apex Court in Bagdi Ram vs. State of Madhya Pradesh, reported in AIR 2004 SC 387 . On thoughtful consideration of the contentions raised by the learned Counsel, we are unable to agree with the submissions made by him. Having regard to the fact that appellant-Narayan Singh came out of the house carrying a gun in his hand and fired at deceased-Shailendra Singh, it is not possbile to accept the contention that the appellant had not done the act with the intention of causing his death. In these circumstances, no other inference is possible to draw but that the appellant caused such bodily injury as he knew to be likely to cause death of deceased- Shailendra Singh. Thus, we are of the view that the instant case falls under the Clause fourth of Section 299, which provides that if the person committing the act, knows that it is so eminent danger as that it must, in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury, it will amount to murder. Thus, the offence falls within the ambit of Section 302 IPC. The trial Court has rightly convicted the appellant-Narayan Singh of offence under Section 302 IPC. .20. As regards appellant-Mohan Singh, according to the version given by the eye-witnesses he made an oral exhortation to the appellant-Narayan Singh to fire at deceased Shailendra Singh. We do not consider it safe to upheld the conviction of the appellant-Mohan Singh merely on the basis of oral statements of exhortation made by the eye-witness i.e., PW. 6 Radhakishan and PW. 8 Prem Singh. There is a conflict in the statement of both the eye-witnesses as to the actual words uttered by appellant-Mohan Singh. There are no other surrounding circumstances to ensure the confidence that the appellant-Mohan Singh made such an exhortation. 6 Radhakishan and PW. 8 Prem Singh. There is a conflict in the statement of both the eye-witnesses as to the actual words uttered by appellant-Mohan Singh. There are no other surrounding circumstances to ensure the confidence that the appellant-Mohan Singh made such an exhortation. If the appellant had any intention to kill Shailendra Singh, it was not difficult for him to use any other weapon and cause injury to him. It is held by the Honble Apex Court in Jainul Haque vs. State of Bihar, reported in AIR 1974 SC 45 that the evidence of exhortation is, in the very nature of things, a weak piece of evidence. The Court further observed, thus, .“There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant.” 21. In our opinion, the evidence on record as to the exhortation attributed to the appellant-Mohan Singh is not convincing. Thus, we are of the view that it is not possible for us to confirm the finding of the trial Court as to the common intention shared by the appellant-Mohan Singh with the assailant of the murder namely Narayan Singh. The benefit of reasonable doubt eminent from the broad features of the case must be extended to the appellant-Mohan Singh. 22. Accordingly, we partly allow the appeal as follows:- .(i) The appeal filed by the appellant Narayan Singh S/o Mohan Singh being devoid of merit stands dismissed. He is in jail. He will serve out remaining part of his sentence. .(ii) The appeal filed by appellant-Mohan Singh S/o Lakh Singh is allowed. His conviction under Section 302/34 IPC is set aside. He is on bail. His bail bonds stand discharged.