ABHAY GOHIL, J. ( 1 ) THIS judgment shall also govern the disposal of Criminal Appeal No. 169/02. ( 2 ) CRIMINAL Appeal. No. 325/02 has been filed by appellant Udayveer from jail and appellant Radheshyam has filed Criminal appeal No. 169/2002 under Section 374 cr. P. C. against the common judgment dated 5. 4. 2002, In Sessions Trial No. 128/1999 appellant Udayveer Singh was tried before the Sessions Judge Bhind under Section 302 and 307/34 IPC and under Section 27 (1) of arms Act and appellant Radheshyam was tried under Section 302/34 and 307 IPC and section 27 (1) and 29 (B) of Arms Act. Appellant Udayveer has been convicted and sentenced under Section 302 IPC for life imprisonment and fine of Rs. 5,000 in default of payment of fine three years RI and under Section 27 (1) of Arms Act for two years ri and fine of Rs. 2,000 in default of payment of fine six months further RI. Appellant Radheshyam has been convicted and sentenced under Section 302/34 IPC for life imprisonment and fine of Rs. 5,000 and in default of payment of fine two years RI and under Section 27 (1) of Arms Act for three years RI and fine of Rs. 2,000 and in default of payment of fine six months further ri and under Section 29 (B) of Arms Act for three years RI and fine of Rs. 2,000 in default of payment of fine six months further ri. Both the appellants have been convicted and sentenced under Section 307/34 IPC for three years RI and fine of Rs. 2,000 and in default of payment of fine, six months RI. ( 3 ) PROSECUTION story lies in narrow compass that on 15. 3. 1999 Guddi D/o Kaptan singh had come to her father's house from her in-laws house and was staying there. On 26. 3. 1999 Lali another daughter of kaptan Singh was taking water from handpump situated near her house at village chure Ka Pura in police station Nayagaon district Bhind. At the same time accused udayveer and Radheshyam both came on the hand-pump. Udayveer was carrying licensed gun of Radheshyam in his hand. Udayveer uttered obscene words to Lali. On 26. 3. 1999 Lali another daughter of kaptan Singh was taking water from handpump situated near her house at village chure Ka Pura in police station Nayagaon district Bhind. At the same time accused udayveer and Radheshyam both came on the hand-pump. Udayveer was carrying licensed gun of Radheshyam in his hand. Udayveer uttered obscene words to Lali. Deceased Guddi, who was sitting at the door of the house of her father Kaptan Singh and was busy in sorting out the mustered, asked her sister Lali to go inside the house as they are miscreants (Yeh Badmash log hai), then udayveer threatened her and said "just now I will see you (abhi batata hu) and appellant Radheshyam exhorted -"she is talking too much, finish her" (Yeh jyada muh chalati hai, ise nipta do ). Thereafter, udayveer fired at Guddi, which hit her left elbow and chest and ran away. Guddi died on spot. Samant Singh, who was the brother-in-law (Jeth) of Guddi and Kaptan singh, who were present, ran towards the accused persons to catch them. Radheshyam, after taking gun from udayveer, fired at Kaptan Singh and samant Singh, however, none of them received any injury. In the meantime Shankar Singh and Vijay Singh came there and chased the accused persons. Udayveer was caught at the spot, however, appellant radheshyam, it is alleged, ran away. Udayveer was produced at police station nayagaon along with gun and Kaptan Singh lodged the FIR. Udayveer was arrested and the gun was seized. The matter was investigated. Lash Panchnama was prepared. Dead body was referred for post-mortem. Site plan was prepared. Blood-stained soil and plain soil, two empty cartridges of. 312 bore rifle were seized. Clothes, gun and empty cartridges were sent for chemical examination and after arresting the accused persons and completing the investigation, charge-sheet was filed. ( 4 ) DURING trial both the appellants abjured their guilt and pleaded false implication and also examined one witness in defence. ( 5 ) PROSECUTION examined as many as seven witnesses and one witness was examined in defence. After considering the prosecution evidence, trial Court found them guilty, convicted and sentenced them as aforesaid, against which Udayveer has filed appeal from jail and Radheshyam has filed appeal challenging their conviction and sentence. ( 5 ) PROSECUTION examined as many as seven witnesses and one witness was examined in defence. After considering the prosecution evidence, trial Court found them guilty, convicted and sentenced them as aforesaid, against which Udayveer has filed appeal from jail and Radheshyam has filed appeal challenging their conviction and sentence. ( 6 ) WE have heard shri Anup Nigam and shri A. K. Jain, Advocates for the appellant udayveer and Shri V. K. Saxena, Sr. Advocate with Shri M. S. Rawat, Advocate for appellant Radheshyam. In nutshell Shri V. K. Saxena, learned Senior Advocate referred the evidence of the witnesses and submitted that none of the witnesses Kaptan Singh (PW1), Samant Singh (PW2), Veersingh (PW4) and Lali (PW6), those who are the eyewitnesses, have supported the prosecution case so far as the allegation against radheshyam is concerned. He submitted that the conviction of this appellant radheshyam under Section 302/34 IPC is bad in law as this appellant was not identified by any of the aforesaid witnesses in the court that he is not the same Radheshyam who was present at the time of commission of crime. So far as the conviction of this appellant under Section 27 (1) and 29 (b) of the arms Act is concerned, it is submitted that the aforesaid gun was forcibly seized by the police from the house of this appellant radheshyam, which is his licensed gun and was kept in a box and for that the trial Court has wrongly discarded the evidence of the defence witness Jabar Singh (DW1), who has stated that on next day police came into village, entered into the house of radheshyam and they opened the lock of the box and seized the gun. This evidence was notibelieved by the trial Court. Therefore, submission of Shri Saxena is that the trial Court has committed illegality in discarding the evidence of defence witness and he has been wrongly convicted under the Arms Act. ' ( 7 ) SHRI Nigam and Shri A. K. Jain, learned counsel for the appellant Udayveer Singh in nutshell has not challenged the conviction and submitted that under the facts and circumstances and from the evidence and record it is clear that it is a case of sudden provocation. The appellant had not come with any premeditation to kill the deceased. The appellant had not come with any premeditation to kill the deceased. The incident took place suddenly on the hand-pump on account of taking water for drinking by Udayveer Singh and on account of the fact that Guddi uttered some obscene words against Udayveer that he is miscreant (Yeh badmash log hai) and it is submitted that in view of the evidence on record, the case will not fall under Section 300 fourthly, IPC as the fact of intention to cause death is missing in the prosecution story and if the whole evidence is taken into consideration, the case will not fall under Section 302 IPC and therefore conviction of the appellant under Section 302 IPC is bad in law. At the most the appellant can be convicted under Section 304 Part-I IPC. It was also argued that only one fire was made by udayveer Singh under provocation and there was no intention on his part to kill her. He has already suffered jail sentence of more than 8 and 1/2 years, which appears to be sufficient and the offence be converted and he be released on undergone jail sentence. ( 8 ) IN reply Shri C. S. Dixit, learned Public Prosecutor appearing for respondent state supported the judgment of the trial Court. ( 9 ) ON scanning the evidence on record, we find that so far as the evidence against appellant Udayveer is concerned, all the prosecution witnesses Kaptan Singh (PW1), samant Singh (PW2) and Veersingh (PW4)and Lali (PW6) have consistently and categorically stated that two persons came on the hand-pump when Lali was taking water from the hand-pump. Appellant udayveer had put his hand into the bucket. (PW1) Kaptan Singh has admitted in the cross-examination that this was done for taking water for drinking purposes. On that there was some wordy quarrel between them. They were saying that Lali is talking too much and all have affirmed this fact in their evidence that Guddi, who was sitting at the door of the house and was busy in sorting out mustered had asked Lali that you come inside the house as these are miscreant persons (Ye badmash log hai) and on hearing the word "badtnash" uttered by guddi, the fire was made by Udayveer at guddi. Therefore, from the aforesaid evidence it appears that the incident took place suddenly. Therefore, from the aforesaid evidence it appears that the incident took place suddenly. There is no evidence that Guddi or Lali were knowing appellants previously or there was any enmity between them. Dr. A. K. Choudhary (PW5) had performed the autopsy of the dead body. He found two injuries on the body of the deceased, one lacerated wound on the left forearm as well as entry wound towards left renal area and wound of exit was also found near the chest towards the left 6th and 7th rib. On internal examination it was found that 6th, 7th and 8th ribs were ruptured. Thoracic cavity was full of blood. Left lung was found ruptured. Stomach and diaform were also found ruptured and abdomen cavity was full of blood. Undigested food was coming out from the stomach. Spleen and left kidney was also found ruptured. ( 10 ) IN the cross-examination though doctor has opined that the injury received in the forearm was not a gun shot injury and he was unable to say that from what distance the fire was made and he had not seen the blacking and charring near the entry wound. But the trial Court after considering the evidence found that the gun shot injury first hit the left forearm and thereafter hit the chest of the deceased. Therefore, this opinion of the doctor that the injury caused in the left forearm was not the fire arm injury does not carry any weight as the accused was caught red handed from the spot and the incident was witnessed by the eyewitnesses, who have categorically stated that the one shot was hit by Udayveer on the deceased and that shot caused two injuries on the body of the deceased. ( 11 ) AS we have already held that all the prosecution witnesses have deposed against udayveer, who fired on Guddi and Guddi died on the spot, therefore it is clear that udayveer committed the offence and used the gun of Radheshyam in that offence. He was caught red handed on the spot and gun was also seized and he was also arrested. Documents Ex. P2, P3 and P4 are material and found proved by the witnesses Kaptan singh (PW1) and Samat Singh (PW2 ). He was caught red handed on the spot and gun was also seized and he was also arrested. Documents Ex. P2, P3 and P4 are material and found proved by the witnesses Kaptan singh (PW1) and Samat Singh (PW2 ). As has been argued by the learned counsel for the appellant the question is whether the conviction of the appellant Udayveer is liable to be affirmed under Section 302 IPC or not. It was submitted that there is no evidence of enmity or motive. They were not knowing to each other. There is no evidence that they came with intention to kill the deceased. It has clearly come in the evidence that both the appellants were passing through the hand-pump, at that time Lali was taking water from hand-pump. Udayveer put his hand in the bucket. PW1 admitted that Udayveer was taking water for drinking from the bucket. It was objected by Lali that why he is taking water from the bucket and there was some exchange of words between Lali and Udayveer on this count Radheshyam who was also present along with Udayveer had in indecent way told that she is talking too much (bahut muh chalati hai ). It has also consistently proved by the witnesses that Guddi asked Lali to come inside house as they are miscreants (yeh badmash log hai) and on speaking these words and on exhortation by radheyshyam, Udayveer fired on Guddi. It was vehemently argued Udayaveer was provocated, on which he fired on Guddi. Trial Court while recording the finding in para 47 of the judgment found that the incident took place because of sudden provocation, but in para 59 of the judgment trial court has discarded that it is a case of sudden fight and has not held that it is a case of culpable homicide not amounting to murder and has specifically held that the appellant will not be entitled for the benefit of exception 4 of Section 300 IPC. If the aforesaid evidence is scrutinized it reveals that the incident took place suddenly and he fired on hearing the word "miscreants" (Badmash) and the genesis of the offence is the dispute of taking water from the bucket. From the aforesaid discussion, we are of the view that the case of the appellant Udayveer will not fall under Section 302 IPC because the evidence of intension causing murder is missing. From the aforesaid discussion, we are of the view that the case of the appellant Udayveer will not fall under Section 302 IPC because the evidence of intension causing murder is missing. He might have fired but that fire was made under certain circumstances and it was not pre-determind. It was also argued that it is a case of single fire. Though the doctor has opined that the injury was sufficient to cause death in the ordinary course of nature but second fact of intention for bringing the case in part thirdly of Section 300 of IPC is missing. Therefore, the appellant is not liable to be convicted under Section 302 IPC. ( 12 ) IN the case of surendra Singh v. State of Uttaranchal AIR 2006 SC 192q there was hot exchanges of words and scuffle endued between the parties on account of cattle belonging to accused damaging the standing crops. Accused thereafter upon being instigated by his brother alleged to have fired gun shot which hit deceased resulting into his death. Only one shot was fired and the accused was not apprehended at spot. The Supreme Court found that it cannot be held that accused had an intention to kill the deceased. Fourth exception to Section 300 is attracted and conviction is altered from Section 302 to one under Section 304, Part-I. ( 13 ) IN the case of Thangaiya v. State of Tamil Nadu AIR 2005 SCI 142. Supreme Court has considered the difference between offence under Section 304 Part-I and Part-II, the Supreme court has held as under: "22. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body, where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part-I IPC and not Section 302 IPC. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part-I IPC and not Section 302 IPC. " ( 14 ) SO far as the sentence is concerned it was argued that the appellant Udayveer be released on undergone jail sentence as he has suffered jail sentence of more than 8 and half years. In this case even if the case fall under Section 304 Part-I, because the appellant Udayveer caused injury to a young girl on a small matter and when he was having a gun he was knowing Well that if he will fire she will die, therefore, the appellant Udayveer is liable to be sentenced for 10 years R. I. instead of undergone jail sentence. Therefore, we convict him under section 304 Part-I IPC and sentenced him for ten years R. I. His conviction under Section 27 (1)of the Arms Act for three years r. I. is also affirmed. Both the sentences shall run concurrently. ( 15 ) SECONDLY, we have examined the case against Radheshyam. Though all the prosecution witnesses in the examination-in-chief had stated against Radheshyam, but in the cross-examination they have stated that Radheshyam present in the Court was not the same Radheshyam, who was present on the spot along with Udayveer. When all the witnesses have categorically denied the presence of Radheshyam on the spot in the cross-examination, whether the conviction of the appellant Radheshyam can be upheld under Section 302/34, IPC. When all the witnesses have stated in the cross-examination that this Radheshyam was not present on the spot and he is not the same radheshyam, who was present at the place of occurrence, then certainly it can be held that it is a case of no evidence against radheshyam and conviction of Radheshyam under Section 302/34 cannot be upheld. Considering the evidence on record, we set aside his conviction under Section 302/34 IPC. ( 16 ) SO far as the conviction of radheshyam under Section 27 (1) and 29 (b)of the Arms Act is concerned, this evidence is very clear that Udayveer was caught red handed on the spot. He was handed over to the police by Kaptan Singh and Samat Singh on the date of incident i. e. on 26. 3. ( 16 ) SO far as the conviction of radheshyam under Section 27 (1) and 29 (b)of the Arms Act is concerned, this evidence is very clear that Udayveer was caught red handed on the spot. He was handed over to the police by Kaptan Singh and Samat Singh on the date of incident i. e. on 26. 3. 1999 and gun was seized by seizure memo Ex. P3 and both the witnesses Ex. P1 Kaptan Singh and pw2 Samat Singh have proved that part of evidence. He was arrested and arrest memo is Ex. P2, which is also supported by both the witnesses Kaptan Singh (PW1) and samat Singh (PW2 ). Radheshyam has admitted that the gun was seized and he has not denied this fact that the gun, which was seized by Ex. P3 does not belong to him but his defence is that the aforesaid gun was forcibly seized by the police from his house next date, which was lying in a box. Trial court has not believed on this evidence. Shri saxena submitted that the conviction of appellant under Section 27 (1) of the Arms act is bad in law because the gun was not used by him in contravention of provisions of Section 5 of the Arms Act. ( 17 ) CONSIDERING the provisions of Section 27 (1) of the Arms Act that whoever uses any arms or ammunition in contravention of section 5 shall be punished with imprisonment and since the gun was not used in the commission of crime by Radheshyam and it was used by Udayveer, therefore we also set aside the conviction of appellant radheshyam under Section 27 (1) of the arms Act. So far as the conviction of appellant radheshyam under Section 29 (b) is concerned, the evidence is available that he delivered the aforesaid arms into the possession of Udayveer without previously ascertaining that such other person is entitled by virtue of this Act or any other law for the time being in force or not. Therefore, the offence under Section 29 (b) of the Arms Act is made out and his conviction under Section 29 (b) of the Arms Act is affirmed. ( 18 ) SO far as the question of sentence of appellant Radheshyam is concerned, as discussed above, his conviction is affirmed under Section 29 (b) of the Arms Act. Therefore, the offence under Section 29 (b) of the Arms Act is made out and his conviction under Section 29 (b) of the Arms Act is affirmed. ( 18 ) SO far as the question of sentence of appellant Radheshyam is concerned, as discussed above, his conviction is affirmed under Section 29 (b) of the Arms Act. Trial court has already awarded three years R. I, with fine of Rs. 2,000. It is submitted that fine amount has already been, deposited. Shri Saxena submitted that he be released on undergone jail sentence. As per the record he has suffered jail sentence of more than two years 11 months and two days, 28 days short of three years. Considering the submissions, we allow the prayer of Shri saxena and direct that the appellant radheshyam be released on undergone Jail Sentence. ( 19 ) CONSEQUENTLY, both the appeals are allowed partly. Conviction of appellant udayveer under Section 302 IPC is set aside, instead he is convicted under Section 304 Part-I IPC and he is sentenced for ten years R. I. His conviction under Section 27 (1)of the Arms Act and Sentence of three years r. I. is also affirmep. Both the sentences shall run concurrently. He is already in jail. He be released after Completing the jail sentence, if not required in any other offence. Conviction of appellant Radheshyam under section 302/34 IPC and under Section 27 (a)of the Arms Act is set aside. His conviction under Section 29 (b) is affirmed. Since he has suffered jail sentence of more than two years 11 months and two days, 28 days short of three years, he is released on undergone jail sentence. He is on bail. His bail bonds are discharged. Appeal allowed partly. .