JUDGMENT Pradeep Kumar,J, This appeal is directed against the judgment dated 22.5.2002 and order of conviction dated 23.5.2002 passed by Sri Rajeev Kumar, Vth Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 11 of 1999, by which judgment he found the appellant, Dhananjay Singh guilty under Section 304 of the Indian Penal Code read with Section 27 of the Arms Act and convicted him thereunder and sentenced him to undergo R.I. for 3 years under Section 304 of the Indian Penal Code and further sentenced him to undergo R.I. for 3 years and a fine of Rs. 5,000/ and in default to undergo R.I. for 6 months under Section 27 of the Arms Act. However, he directed both the sentences shall run concurrently. 2. It is submitted by the learned counsel for the appellant that the appellant has falsely been implicated in this case. He has further submitted that although the F.I.R. was lodged on 22.5.1997, but the same was sent to the Chief Judicial Magistrate on 23.5.1997 and hence there is a delay in sending the F.I.R. which creates doubt in the prosecution case itself. He has further submitted that there is only two eye witnesses of the occurrence i.e. P.W.1, Suresh Ram and P.W.6, Rajdeo Singh (informant) and others came after the occurrence and only they saw the dead body of the deceased even presence of P.W.6, the informant at the place of occurrence is doubtful and hence the finding of conviction is bad in law and fit to be set aside. Lastly he has argued that it is a case of accidental firing and as such at best the appellant should be found guilty only under Section 304(II) of the Indian Penal Code and not under Section 304 of the Indian Penal Code. 3. On the other hand, learned counsel for the State has opposed the prayer and submitted that there is no delayin sending the F.I.R. It will appear from the F.I.R. itself that the F.I.R. was registered on 21.5.1997 and formal F.I.R. was drawn at 5.30 A.M. in the afternoon. 3. On the other hand, learned counsel for the State has opposed the prayer and submitted that there is no delayin sending the F.I.R. It will appear from the F.I.R. itself that the F.I.R. was registered on 21.5.1997 and formal F.I.R. was drawn at 5.30 A.M. in the afternoon. Thereafter, the same was sent on 22.5.1997 to the Court of Chief Judicial Magistrate, Palamau at Daltonganj since Daltonganj is at far distance from Haidernagar Police Station hence, the same was seen by Chief Judicial Magistrate on 23.5.1997 although it reached at Daltonganj Court on 22.5.1997 itself and hence there is no delay which can create undoubt. He has further submitted that the evidence of eye witnesses clearly proved that the appellant caused the death of the deceased knowingly as the gun fire injury was caused on the chest hence the conviction under Section 304 of the Indian Penal Code read with Section 25 of the Arms Act is well founded and requires no interference by this Court. 4. After hearing both the parties and going through the record, I find that in order to prove the charges the prosecution has examined 13 witnesses. P.W.1, Suresh Ram is an eye witness, P.W.2, Anirudh Singh, he came after the occurrence, P.W.3, Jag Narayan Singh is witness of seizure of blood at the place of occurrence, P.W.4, Ram Prasad Singh he came after the occurrence, P.W.5, Baikunth Singh he saw the dead body, P.W. 6, Raj Deo Singh, the informant is an eye witness, P.W.7, Nanku Mahto reached on the next day of the occurrence, P.W.8, Jamni Mahto, who has been declared hostile, P.W.9, Dr. Rajeshwar Singh, who proved the postmortem report, P.W.10, Faugni Mahto, he came to know about the occurrence after he came to the village, P.W.11, Kail Saw, who has been declared hostile, P.W.12, Satya Devi wife of P.W.1, Suresh Ram and P.W.13, Bhola Singh who saw the dead body of the deceased. 5. Thus, the main witnesses for consideration are P.W.1, P.W.6, P.W.9 (Doctor) and P.W.12 wife of P.W.1. The main witness P.W.1 stated in Court that on the date of occurrence he was sitting on the door of his house when Hari Singh and Dhananjay Singh came to his door and sat down on the Chauki, which was lying in his Varandah. Thus, the main witnesses for consideration are P.W.1, P.W.6, P.W.9 (Doctor) and P.W.12 wife of P.W.1. The main witness P.W.1 stated in Court that on the date of occurrence he was sitting on the door of his house when Hari Singh and Dhananjay Singh came to his door and sat down on the Chauki, which was lying in his Varandah. Thereafter, Hari Singh asked him to bring water when he came out with a glass of water then he saw that both Hari Singh and Dhananjay Singh are having entered hot dialogue. Thereafter, suddenly Dhananjay Singh brought out a pistol and put it on the chest of Hari Singh Singh whereupon Hari Singh said that whether he wants to kill him. Thereafter Dhananjay Singh while continuing hot dialogue and suddenly fired from the pistol causing injury on the chest of deceased, Hari Singh and he fell down then, he started making Hullah. On his Hullah Rajdeo Singh father of the deceased came and thereafter Anuj Singh, Bhola Singh and other also came and the deceased died on the spot. In his cross-examination, he stated that in his basti about people of 60 castes lived. He further stated that the house of Rajdeo Singh father of the deceased is in the middle of the village and from his house it is at distance of 500 yard. He further stated that he had given evidence under Section 164 Cr. P. C. also and he had not stated in his 164 Cr. P. C. statement that after the occurrence of firing by Dhananjay Singh he ran away towards the house of Hari Singh and then his father came. In para 13 he had not stated in his evidence that the deceased Hira Singh was dismissed from police service and thereafter he was not doing any work and used to drink wine and roam about here and there and was bad character. In para 14 he stated that the accused, Dhananjay Singh is a good looking tall man and at the time of occurrence he was looking like a young boy. He also admitted in para 16 that at the time of occurrence in his house his wife and children were present. In para 18 he also admitted that when he came out of his house he found Dhananjay Singh at a distance of about 25 steps from Hari Singh. He also admitted in para 16 that at the time of occurrence in his house his wife and children were present. In para 18 he also admitted that when he came out of his house he found Dhananjay Singh at a distance of about 25 steps from Hari Singh. He also stated that his statement was recorded after 15 days of the occurrence by the police. The next important witness is P.W.6 Raj Deo Singh, the informant he fully supported the prosecution case and stated that the deceased Hari Singh was his son and he was killed on the door of Suresh Ram by accused Dhananjay Singh by firing. He stated that while searching for his son, Hari Singh, when he came near the house of Suresh Ram then he saw that Dhananjay Singh is having hot dialogue with his son, Hari Singh and suddenly he fired upon him, whereupon, he fell down. The Investigating Officer came at the place of occurrence his statement was recorded. He stated that the statement was read over then he put his L.T.I. on the same. He identified the accused in Court. He further stated that after the occurrence the witnesses, Bhola Singh and Jitendra Singh came at the place of occurrence. Then, he told about the occurrence to them. In his cross-examination, at para 8 he stated that when he reached near the house of Suresh Ram then he saw that Suresh Ram was standing there and at some distance the accused, Dhananjay Singh and his son (deceased) were there. After he reached then only one firing was done by Dhananjay Singh thereafter his son fell down then he had also fallen down on the body of his son and became unconscious and there was blood stained in his cloth also. In para 15 he further stated that he had shown the blood stained to the Daroga also. The third important witness to consider is doctor (P.W.9). He stated on 22.5.97 I was posted at sadar hospital at Daltonganj, who examined the deceased, Hari Singh on his body. He found lacerated wound on the chest of size 1/2" x 1/4" x chest cavity deep with blackening and tattooing both skin and around the wound ( wound of entry). In the opinion of the doctor the deceased died due to shock and hemorrhage caused by injury no. 1 by fire arm. He found lacerated wound on the chest of size 1/2" x 1/4" x chest cavity deep with blackening and tattooing both skin and around the wound ( wound of entry). In the opinion of the doctor the deceased died due to shock and hemorrhage caused by injury no. 1 by fire arm. P.W.12, Satya Devi wife of P.W.1, Suresh Ram. She stated in Court that on the date of occurrence she was in her house cooking food when she heard sound of firing she came out and saw the deceased, Hari Singh lying down at her door with fire arm injury and nobody was present there. She was declared hostile. She denied that she had stated to the police that when she came out of the house she saw the accused Dhananjay Singh running away from the place of occurrence and he had fired upon Hari Singh. 6. Thus all the other witnesses, namely, P.W.2, Anirudh Singh stated that he came after the occurrence and he was informed about the occurrence by Suresh Ram and his wife. P.W.3, Jag Narayan Singh also stated that he came after the occurrence and he was informed about the occurrence by Suresh Ram and his wife. P.W.4, Ram Prasad Singh also stated that he was informed by Suresh Ram that Dhananjay Singh caused the death of Hira Singh and ran away. He denied, in his cross-examination, in para 10 that he was informed by Suresh Ram that at the time of occurrence Hari Singh was drunken and was making jokes. The accused Dhananjay Singh and other witness are all hearsay witnesses. 7. Thus, after considering all the evidences as discussed above, I find that there is no doubt that there was noenmity between the accused, Dhananjay Singh and the deceased, Hari Singh. They came to the house of Suresh Ram ( P.W.1) and peacefully sat on the chauki in front of his house and they asked for water and when Suresh Ram went inside his house. On some point they started quarreling with each other verbally and when P.W.1, Suresh Ram came out he saw that they are engaged in verbal dialogue and suddenly the accused, Dhananjay Singh brought out a pistol and aimed the deceased who asked him not to do it, otherwise he may die, but during dialogue it appears that suddenly firing took place causing the death of the deceased. The defence has tried to bring into the evidence that the deceased Hari Singh was dismissed from his police service and used to roam about the village in drunken condition and on that day also he had come with the accused, Dhananjay Singh in that condition and due to influence of liquor he must said something, due to which Dhananjay Singh during hot discussion took out his pistol and suddenly firing took place, which shows that it was an accidental fire. 8. In that view of the matter, conviction of the appellant under Section 304 of the Indian Penal Code read with Section 27 of the Arms Act is too harsh. The conviction of the appellant is altered to that of Section 304(II) of the Indian Penal Code and he is sentenced to the period already undergone by him in custody during trial. 9. It is submitted by the learned counsel for the appellant that the appellant has remained in custody for morethan 6 months and has sufficiently been punished. 10. With the aforesaid alteration in the conviction and sentence the appeal is allowed in part.