Judgment ( 1. ) SOLE appellant Sardar Singh has been convicted for an offence under section 302, IPC and sentenced to imprisonment for life in Sessions Trial no. 127/90 by First Additional Sessions Judge, Dabra, District Gwalior vide judgment dated 24-8-1999. In this appeal he has assailed the said judgment of his conviction. ( 2. ) AS per prosecution story on 12-12-1989 at about 8 p. m. in the night nanhe Singh (P. W. 5) father of the deceased Jawahar Singh was preparing cattle food and his daughter Sunita (P. W. 8) and her brother Devendra (P. W. 7) were helping him, at that time appellant carrying 12 bore gun in his hand came at the door of the deceased and gave commotion and said that "if you belong to real father come out". When after hearing the commotion his son came out, at the same time appellant fired on him by his 12 bore gun, which he received in his both thighs. He fell down and blood also fell on the place of occurrence. Thereafter appellant ran away from the spot. Thereafter he was brought to P. S. Bhitarwar. Injured Jawahar Singh himself lodged FIR Ex. P- 12. He was referred for medical examination and MLC report is Ex. P-10 from where he was referred to Gwalior where he died. Thereafter post-mortem of the dead body was performed. Ex. P-9 is the post-mortem report. On the basis of the aforesaid FIR crime was registered, matter was investigated and charge-sheet was filed. During trial appellant abjured his guilt. It was the defence that the deceased was a person of criminal background and many criminal cases were pending against him. On the date of incident he was in the state of intoxication and he was creating nuisance in the village and under the suspicious circumstances somebody had killed him. The appellant has been implicated falsely on account of enmity. Trial Court after considering the evidence found the appellant guilty, convicted and sentenced him as aforesaid, against which he has filed this appeal. ( 3. ) FIRST of all we have considered the medical evidence on record. Ex. P-10 is the medical examination report. It was prepared by Dr. Ashok Kumar jaiswal (P. W. 9 ). According to him there was gun shot wound, which was dangerous to life and he referred the case to J. A. Group of Hospitals, Gwalior. ( 3. ) FIRST of all we have considered the medical evidence on record. Ex. P-10 is the medical examination report. It was prepared by Dr. Ashok Kumar jaiswal (P. W. 9 ). According to him there was gun shot wound, which was dangerous to life and he referred the case to J. A. Group of Hospitals, Gwalior. Post mortem was performed by P. W. 6 Dr. J. N. Soni and post-mortem report is ex. P-9. According to this report, the deceased received ante-mortem multiple punctured wounds on the anterior aspect of right thigh, 16 cm. below the anterior superior ilica spine. There was also punctured wound on the left thigh 1 x 0. 05 cm. , muscle deep. These injuries were caused by fire arm. Cause of death was shock and haemorrhage as a result of injury to the lower limb. The same was homicidal in nature caused by fire arm within 6 to 24 hours. There was also fracture in the femur hone and 37 pallets were taken out from the body. The cause of the death was the aforesaid injury. Doctor has not opined whether the injury was sufficient to cause death in the ordinary course of nature. It was opined that it was dangerous to life. Doctor has admitted that there were no sign of charring and tattooing near the wound. He was unable to give any opinion that from how much distance the fire was made, but it was not a contact or a close wound. On the aforesaid evidence it is clear that the deceased died because of the gun shot injury, which was homicidal in nature, and dangerous to life. ( 4. ) THE next question for our consideration is whether the appellant is the assailant. For that, prosecution examined Nanhe Singh (P. W. 5), who is the father of the deceased and was also present at the time of incident in the house. He had seen the incident. He has supported the prosecution story and according to him it was the appellant, who made gun shot fire. He was put to lengthy cross-examination, but he remained firm. Devendra (P. W. 7) is the brother of the deceased. He was also present at the place of occurrence. He had also seen the incident. He had seen the incident. He has supported the prosecution story and according to him it was the appellant, who made gun shot fire. He was put to lengthy cross-examination, but he remained firm. Devendra (P. W. 7) is the brother of the deceased. He was also present at the place of occurrence. He had also seen the incident. He supported the prosecution story and has deposed that it was the appellant Sardar Singh, who came to their house and fired on the deceased by his 12 bore gun. Ku. Sunita (P. W. 8) is the sister of the deceased. She has also supported the prosecution. All the aforesaid witnesses stood firm so far as the involvement of the appellant in the commission of crime is concerned. They categorically stated that it was the appellant, who hit the deceased by gun shot fire. Ramkishan (P. W. 10) had reached on the spot, but he has not supported the prosecution story. He is also witness of Naksha panchayatnama (Ex. P-3 ). His evidence is useful only for the purpose of the criminal background of the deceased. In the cross-examination he has stated that deceased was the person of background. He was facing many criminal cases and he used to fight and create nuisance in the village after taking liquor and he was also teasing the ladies. He died in the way when he was being taken to gwalior. He has admitted that the relations between Sardar Singh and Nanhe singh are not cordial and they are inimical. Jagannath (P. W. 11) is the chowkidar. Though he was the witness of documents, but he has not supported the case of prosecution. From the aforesaid ocular evidence it is clear that the appellant is the assailant. It is very interesting in this case that initially all the aforesaid witnesses supported the prosecution story. After seven years they were again cross-examined and at that time they became hostile. Trial Court has not considered the later part of the evidence of the witnesses after placing reliance on a decision of the S. C. in the case of Khujji Vs. State of M. P. ( AIR 1991 SC 1853 ). ( 5. After seven years they were again cross-examined and at that time they became hostile. Trial Court has not considered the later part of the evidence of the witnesses after placing reliance on a decision of the S. C. in the case of Khujji Vs. State of M. P. ( AIR 1991 SC 1853 ). ( 5. ) IN the background of the facts and circumstances and the evidence on record, third and foremost question for our consideration is that even if the earlier evidence of the witnesses is taken into consideration, whether the case will fall within the purview of "murder" as defined under Section 300 read with section 302, IPC or the case will fall within the category of culpable homicidal not amounting to murder simply on the ground that the deceased received only single gun shot injury, that too, on the non-vital part of the body of the deceased. ( 6. ) LEARNED Counsel for the appellant vehemently argued and placed reliance on the decision in the case of Smt. Sudama Devi Vs. Commissioner ( AIR 1983 SC 652 ), in which the Supreme Court has considered this argument that when medical evidence indicates that gun shot hit the deceased on the upper right thigh, then the case will not fall within the category of "murder" and considering the single injury on the non-vital part, which was on the right thigh of the body, Supreme Court converted the offence from Section 302 to Section 304, Part I, IPC. Again in the case of Laxman Kalu Nikalje Vs. State of maharashtra ( AIR 1968 SC 1390 ), it was considered that when the injury inflicted on the person of the deceased was a single one, though the injury was a serious one by that it had cut the auxiliary artery and veins, it was not on the vital part of the chest and had not reached the lungs and the incident took place as a result of quarrel over the taking back of his wife, under these circumstances, it was held that the case did not satisfy the requirements under Section 300 of the Penal Code since it could not be said that death was intended. In the case of Kanwarlal Vs. In the case of Kanwarlal Vs. State of M. P. [2002 SCC (Cri.) 1633] though this case was slightly different on fact as there was free fight between the two parties, accused firing a gun shot under grave provocation, and considering various other circumstances of the case, the offence was converted from Section 302, IPC to section 304, Part II, IPC by Honble the S. C. ( 7. ) THOUGH the learned Counsel for the State also placed reliance on two decisions of the Supreme Court in the case of Hari Prasad Vs. State of U. P. , (2003) 9 SCC 60 and Sarup Singh Vs. State of Punjab, (2005) 12 SGC 591, in which even after single injury by gun shot, which resulted into death, the case was considered only under Section 302, IPC and not for any lesser conviction. ( 8. ) IF we consider the facts of this case and the evidence on record, we will find that this case will not fall within the purview of Section 300, IPC, because even if the appellant had come carrying 12 bore gun in his hand on account of enmity as narrated by the witnesses that he wanted to take possession of "goda land", but it is also true that he only made single gun shot fire and hit towards the thigh of the deceased and the fire was not repeated. Thus, in these circumstances it cannot be said that he had come with intention to kill the deceased or even if he had come with the intention, he might have changed his mind and had not repeated the shot though he was carrying gun in his hand. Therefore, considering this fact that he made only one fire, which was too on non-vital part of the body on both the thighs, though doctor has found that those injuries were dangerous but he could have been saved on receiving treatment and help well in time. There is no evidence that the aforesaid injury was sufficient to cause death in the ordinary course of nature. Under these circumstances, it can be held that the case will fall within the purview of Section 304, part I, IPC, and not within the purview of Section 300 or Section 302, IPC. ( 9. There is no evidence that the aforesaid injury was sufficient to cause death in the ordinary course of nature. Under these circumstances, it can be held that the case will fall within the purview of Section 304, part I, IPC, and not within the purview of Section 300 or Section 302, IPC. ( 9. ) IN view of the aforesaid discussion and considering the overt act of the appellant we partly allow this appeal and convert the conviction of the appellant from Section 302, IPC to Section 304, Part I, IPC. It was submitted that the appellant has already suffered jail sentence of more than seven years and four months, therefore we direct that appellant is entitled to be released on the undergone jail sentence, but we impose a fine of Rs. 25,000/- (Rupees twenty five thousand ). The appellant is in jail. He be released on depositing the fine amount. On failure to deposit the fine amount the appellant shall further undergo two years R. I. On depositing the fine amount, a sum of Rs. 25,000/- (Rupees twenty five thousand) be paid as compensation to the father or L. Rs. of the deceased. Criminal Appeal partly allowed.