JUDGMENT 1. - Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 21.01.2008 rendered in Sessions Case No. 67 of 2007 by the learned Additional Sessions Judge (Fast Track) No.1, Udaipur, by which appellant Sanjay Kumar s/o Ramdhar Singh, original accused No.1 ('the accused' for short) has been convicted for commission of the offence punishable under Secs, 302 and 307 of the Indian Penal Code ('IPC' for short) and sentenced to suffer imprisonment for life and fine of Rs. 5000/-, in default of payment of fine simple imprisonment for further period of six months for the offence under Section 302 IPC and simple imprisonment for three years and fine of Rs. 2000/- and in default of payment of fine simple imprisonment for further period of three months under Sec.307 IPC. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2. 1 On 11.10.2003, Vivek Chandalia submitted a written report to the police at M.B.M. Hospital, Udaipur alleging therein that at about 8:30-9 PM, when he along with his younger brother and other members of the family was at home, at that time neighbour Sanjay Kumar Singh came and without any reason started altercation and pushed the flower pots lying on boundary wall of his house to the ground, therefore he, his brother Vinay, Anit Godawat and Radha Goyal persuaded accused Sanjay Kumar Singh. Accused went to the first floor of his house, targeted gun towards his brother and fired a shot. Second fire was made by him after entering into his house on neighbour Anit Godawat which resulted in pallet injuries to Anit3 Godawat on his chest and other parts of the body. His brother Vinay also sustained pallet injuries and lot of blood started oozing out of the injuries received by Vinay and Amit Godawat. Thereafter, Raja Shetty and Goyal brought his brother and Anit Godawat to hospital where Anit Godawat died and his brother admitted. It was stated that in this incident, Omveer Singh was also with accused Sanjay Kumar. 3. On the basis of the above report, police registered FIR for the offence under Sections 302, 307 and 452/34 IPC and started investigation. Police arrested both the accused and after investigation, filed charge-sheet against them. It was stated that in this incident, Omveer Singh was also with accused Sanjay Kumar. 3. On the basis of the above report, police registered FIR for the offence under Sections 302, 307 and 452/34 IPC and started investigation. Police arrested both the accused and after investigation, filed charge-sheet against them. Appellant Sanjay Kumar Singh was chargesheeted for the offence under Secs. 302, 307/34 IPC so also under Section 30 of the Arms Act and accused Omveer Singh was chargesheeted for the offence under Secs. 302 and 307/34 IPC before the competent court, who committed the case to the Court of Sessions, Udaipur, which came up for trial in the Court of Additional Sessions Judge (Fast Track), No.1, Udaipur ('trial Court' , for short). 4. The trial Court, to whom the case was made over for trial, framed charge against accused Sanjay Kumar for commission of offence punishable under Sec.302 & 307 IPC and also under Sec.30 of the Arms Act and against accused Omveer Singh for the offence punishable under Sec.302/34 and 307/34 IPC, which was read over and explained to them. Both the accused pleaded not guilty to the charge and claimed to be tried, therefore, they were put to trial. 5. In order to bring home the guilt against accused persons, the prosecution examined as many as 19 witnesses and relied upon their oral testimony. The prosecution also relied upon number of documents which were exhibited and read in evidence. 6. The trial Court, thereafter, recorded statements of accused under Sec.313 of the Code, wherein also they pleaded innocence and denied the case of prosecution and reiterated that a false case has been filed against them. They examined DW-2 Radhey Shyam and DW-3 Raja Devendra Singh in their defence. 7. On appreciation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that homicidal death of Anit Godawat has been proved and accused No.1 is5 the author of fatal injuries caused to the deceased by gun shot and similarly, accused also inflicted injuries to Vinay, who fortunately survived, therefore, complicity of the accused No.1 for commission of the offence under Section 302 as well as under Sec.307 IPC is established. The trial Court, therefore, held accused appellant Sanjay Singh guilty for the said offences and sentenced him, to which a reference has been made earlier in the judgment. The trial Court, therefore, held accused appellant Sanjay Singh guilty for the said offences and sentenced him, to which a reference has been made earlier in the judgment. The trial court also came to the conclusion that the prosecution has failed to establish charge levelled against accused A-2 Omveer Singh, therefore, he was given benefit of doubt and acquitted him vide impugned judgment dated 21.01.2008. The trial Court also acquitted the appellant for the offence under Section 30 of the Arms Act. 8. Mr. Dhirendra Singh and Mr. JVS Deora, learned counsel for the accused do not dispute the factum of killing Anit Godawat by gun shot as well as attempt to commit murder of Vinay, therefore, according to them, homicidal death of Anit Godawat is proved, however, they submit that this is not a case of murder punishable under Sec.302 IPC but a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. They do not dispute so far as offence against accused appellant for attempt to commit murder of Vinay is concerned. 9. To buttress the aforesaid submissions, they have taken this Court to the evidence of the prosecution witnesses and submitted that conviction of accused appellant Sanjay Kumar under Sec.302 may be altered to Sec.304 Part II and since he is in jail and has undergone sentence for more than 6 years, therefore, his custodial sentence may be treated as substantive sentence for the offence committed by him, and he be set at liberty. They further submit that so far as conviction and sentence recorded under Sec.307 IPC is concerned, the same may be maintained and affirmed. 10. Per contra, Mr. S.S. Sharma, learned Public Prosecutor has supported the judgment and order of conviction and sentence recorded against the accused. According to him, there was intention on the part of the accused to kill the deceased, therefore, case is punishable under Sec.302 IPC and no interference is called for in the impugned judgment and order. He, therefore, urged to dismiss the appeal. 11. We have considered the submissions advanced by the parties and perused the impugned judgment and order. According to him, there was intention on the part of the accused to kill the deceased, therefore, case is punishable under Sec.302 IPC and no interference is called for in the impugned judgment and order. He, therefore, urged to dismiss the appeal. 11. We have considered the submissions advanced by the parties and perused the impugned judgment and order. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with criminal appeals, this Court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 12. There is no dispute to the fact that the deceased Anit Godawat died a homicidal death. There is also not dispute that injured Vinay received pallet injuries of the gun shot fired by accused and accused appellant is the author of the injuries caused to deceased Anit Godawal as well as injured Vinay. 13. To prove the fact that deceased died a homicidal death, the prosecution has examined and relied upon the evidence of Dr. Anish Ahmed, PW 13, who has performed the post mortem on the dead body of deceased and also prepared the report Ex.P/19. On perusal of his oral testimony and report, it is seen that it was a single fire and deceased received pallet injuries, therefore, there cannot be any dispute that the deceased died a homicidal death. To the prove the fact that injured Vinay received the injuries, the prosecution has examined and relied upon the testimony of Dr. Rajendra Sharma PW9, who examined injured Vinay and issued injury certificate Ex.P/12. A perusal of Ex.P/12 shows that injured Vinay received following injuries: Multiple fire arm wounds of size 0.3 x 0.3 cm oval in shape about 11 (eleven) in number present on left side of scalp extending from left side of scalp, from frontal to temparo-parietal region. Therefore, it has to be held that the injured received pallet injuries. 14. A perusal of Ex.P/12 shows that injured Vinay received following injuries: Multiple fire arm wounds of size 0.3 x 0.3 cm oval in shape about 11 (eleven) in number present on left side of scalp extending from left side of scalp, from frontal to temparo-parietal region. Therefore, it has to be held that the injured received pallet injuries. 14. In view of the undisputed fact that accused is author of the injuries caused to deceased Anit Godawat and injured Vinay, the only question which is required to be answered by us is whether the offence alleged to have been committed by the accused is punishable under Sec.302 IPC or under Sec.304 Part9 II IPC. 15. Since learned counsel for accused appellant do not dispute the factum of incident, it is not necessary for us to examine the evidence in extenso, however, it is relevant to notice the evidence of eye witnesses PW3 Smt. Radha Goyal, complainant PW12 Vivek Jain and injured PW15 Vinay. it is an admitted position that on the fateful day dispute took place between accused and the injured and not with the deceased who reached over there by chance and received injuries. Prior to the reaching of deceased, there had been hot exchange of words between accused Sanjay Kumar and Vinay and deceased Anit Godawat on reaching intervened. Therefore, according to us, the act of accused falls within Exception 4 of Sec.300 IPC. Exception 4 of Sec.300 IPC which in terms stipulates that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 16. In the case of Lachman Singh v. State of Haryana, (2006) 10 SCC 524 , the Supreme Court has held that if occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from Section 302 to Section 304 Part II.P.C. 17. In the case of Harendra Nath Borah v. State of Assam, 2007 AIR SCW 4631 , Supreme Court has clearly set out the distinction between `murder' and `culpable homicide not amounting to murder'. In the said case, deceased Truck Driver was assaulted by accused-police personnel and thereafter left on the road after he became senseless. In the case of Harendra Nath Borah v. State of Assam, 2007 AIR SCW 4631 , Supreme Court has clearly set out the distinction between `murder' and `culpable homicide not amounting to murder'. In the said case, deceased Truck Driver was assaulted by accused-police personnel and thereafter left on the road after he became senseless. In that case, the Supreme Court has altered conviction recorded under Section 302 to 304 Part-I IPC. 18. Applying the principle laid down by the Supreme Court in above referred two judgments, to the facts of the instant case & considering the provisions contained in fourth Exception of Section 300 IPC, there is a consistent evidence that there was heated exchange of words between accused, complainant and injured and at that time deceased intervened, therefore, accused got excited, took out gun and fired one gun shot targeting Vinay and second fire was made on Anit Godawat. Therefore, it can safely be inferred that the accused had not11 acted in a cruel or unusual manner nor he has taken the undue advantage of the situation. If he was mindful of the situation to take undue advantage, then he would have fired more gone shots, therefore, the act of the accused is not of murder but culpable homicide not amounting to murder punishable under Section 304 Part I IPC. 19. Seen in the above context, the impugned judgment and order convicting and sentencing the accused for commission of the offence punishable under Section 302 IPC, deserves to be altered into the offence punishable under section 304 part I IPC whereas the conviction and sentence recorded against him under Sec.307 IPC deserves to be affirmed and maintained and accordingly the appeal deserves to be allowed to the said extent. 20. For the foregoing reasons, the appeal succeeds in part and accordingly it is partly allowed, as a consequence thereof we alter the conviction recorded against the accused for the offence under Sec.302 IPC to Sec.304 Part I IPC and for that offence accused is sentenced to seven years' rigorous imprisonment and fine of Rs. 5000/-, in default of payment of12 fine, to further undergo six months' S.I. So far as conviction and sentence recorded against the accused for the offence under Sec.307 IPC is concerned, same is confirmed and maintained. It is ordered that both the sentences shall run concurrently.Appeal partly allowed. *******