JUDGMENT Honble Subhash Chandra Agarwal, J.—This criminal appeal has been filed against the judgment and order dated 18.9.2007 passed by Additional Sessions Judge, Court No. 1, Kanpur Dehat, whereby the appellant Ravi Shanker Pandey @ Munni Pandey was convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 30,000/- and in default of payment of fine, to undergo further R.I. for 3 years a sum of Rs. 20,000/- to be paid to the complainant as compensation out of the fine to be deposited by the appellant. 2. The incident took place on 19.3.2005 at 5.30 p.m. At the house of the complainant Kailash Narain Dixit (P.W. 1). The FIR Ext. Ka-1 was lodged by the complainant at P.S. Chaubepur at 8.30 p.m. On the same day. 3. The prosecution story as unfolded in the FIR is that the appellant and the complainant are the residents of the same village Pachor, P.S. Chaubeypur district Kanpur Nagar and are neighbours. At the time of incident, the appellant came to the house of the complainant armed with his licensed gun and started abuses. The complainant objected to the same, but the appellant did not pay any heed. Hearing the noise, Smt. Vidyawati, the wife of the complainant, came out her house and asked the complainant to come inside. When the complainant was entering his house with his wife, the accused abused them and fired from his gun resulting in injury in the thigh of Smt. Vidyawati. After some time the accused fired again at Pradeep Kumar, the son of the complainant who fell down and escaped unhurt. Smt. Vidyawati was being taken to Hallait Hospital, but she died on the way. The incident was witnessed by the complainant, his son Mithlesh Kumar Dixit (P.W. 2) and Harish Chandra Verma (P.W. 5). 4. Station Officer In-charge Chaubeypur Satish Chandra Yadav (P.W. 6) commenced the investigation. He recorded the statement of the complainant and went to the place of occurrence and after appointing the Panch, held the inquest proceedings and got prepared the inquest report Exhibit Ka-2 through S.I. Rajendra Singh (P.W. 7) and after preparing the necessary papers for post­mortem, sent the dead body of Smt. Vidyawati for post-mortem examination. He also prepared site plan Ext. Ka-8. He took into possession the blood stained and plain earth and prepared it’s memo Ext. Ka-9. He also prepared site plan Ext. Ka-8. He took into possession the blood stained and plain earth and prepared it’s memo Ext. Ka-9. On 20.3.2005 he arrested the appellant and recovered D.B.B.L. 12 bore gun No. 142168, 3 live cartridges and 2 spent cartridges from his possession in respect of which, recovery memo Ext. Ka-3 was prepared. The Investigating Officer also recorded the statements of other witnesses and after completing the investigation, submitted charge-sheet Ext. Ka-10 against the appellant. 5. The autopsy on the dead-body of the deceased Smt. Vidyawati was conducted on 20.3.2005 at 11 a.m. by Dr. K.P. Madhesiya (P.W.3). The age of the deceased was about 66 years and in the opinion of the doctor, the deceased died about half day before from the time of conducting post-mortem examination. The following anti-mortem injuries were found on the dead-body of the deceased : 1. Fire-arm wound of entry 4 x 4 cm. On medial aspect of left thigh 7 cm. Above from left Knee joint, margins inverted black colour present around wound. 2. Fire-arm wound of exit 14 x 6 cm. On lateral side of left thigh 4 cm. Above from left Knee joint, margins everted. Injury is communicated through injury No. 1, underline bone fractured. 6. On internal examination, 3 ounce semi digested food was found in the Stomach. In the opinion of doctor, the deceased died due to shock and haemorrhage due to anti-mortem injuries. 7. Learned Sessions Judge framed charge under Section 302, I.P.C. against the appellant who denied the charge and claimed to be tried. 8. The appellant in his statement under Section 313, Cr.P.C. denied the prosecution story and stated that he has been falsely implicated due to enmity. 9. The appellant in his statement under Section 313, Cr.P.C. stated that his ancestors had settled the father and uncle of the complainant in the village during Zamindari days. Later on in 1960, the deceased was given permission by his father to fix a gate in the Northern wall of her house in-front of Temple to enable her to worship. After few days, the complainant sought permission to fix a Chappar on the said gate which was declined. The family members of the complainant and the family members of the appellant are the supporter of rival political parties due to which various false cases were fastened upon the appellant and his family members. After few days, the complainant sought permission to fix a Chappar on the said gate which was declined. The family members of the complainant and the family members of the appellant are the supporter of rival political parties due to which various false cases were fastened upon the appellant and his family members. The appellant has severed his relations with the complainant for the last 40 years and had no knowledge as to how Smt. Vidyawati suffered injury. 10. The appellant, however, did not adduce any evidence in defence. 11. The prosecution examined 7 witnesses in this case. The complainant Kailash Narayan Dixit (P.W. 1), Mithlesh Kumar Dixit (P.W. 2) , Harish Chandra Verma (P.W. 5) were examined as witnesses of fact. Dr. K.P. Madhesiya was examined as P.W. 3. H.C. 100 Prabhunath Singh scriber of check report has been examined as P.W. 4. P.W. 6 Satish Chandra Yadav is the Investigating Officer and S.I. Rajendra Singh who had prepared inquest report on the directions of the Investigating Officer was examined as P.W. 7. 12. P.W. 1, P.W. 2 and P.W. 5 are the witnesses of occurrence and the remaining are the formal witnesses. 13. Relying upon the prosecution version and the evidence adduced on behalf of the prosecution and rejecting the defence story, the learned trial Judge convicted and sentenced the appellant as aforesaid. 14. We have heard G.S. Chaturvedi, learned Senior Counsel for the appellant, learned A.G.A. for the State and perused the record. 15. Learned counsel for the appellant has not challenged the findings of fact recorded by the learned Trial Judge on merits. We have examined the judgement of the Trial Court and find that the finding of fact recorded by the learned sessions Judge is based on proper appreciation of facts on record. The statements of P.W.1 Kailash Narayan Dixit, P.W. 2 Mithlesh Kumar Dixit and P.W. 5 Harish Chandra Verma are sufficient to prove beyond doubt that the appellant fired from his gun at Smt. Vidyawati as a result of which, Smt. Vidyawati received injuries and died. 16. The statements of P.W.1 Kailash Narayan Dixit, P.W. 2 Mithlesh Kumar Dixit and P.W. 5 Harish Chandra Verma are sufficient to prove beyond doubt that the appellant fired from his gun at Smt. Vidyawati as a result of which, Smt. Vidyawati received injuries and died. 16. Learned counsel for the appellant submitted that the case was not covered under Section 302, I.P.C. His submission is that the occurrence took place in the course of sudden quarrel, the appellant was an old man of more than 65 years of age at the time of incident and was physically handicapped and had no intention to cause death of Smt. Vidyawati. It was further submitted that there was no motive for the appellant to commit murder of Smt. Vidyawati and the injury caused to the deceased was not on any vital part of the body and was not sufficient, in the ordinary course of nature to cause death and, therefore, Section 302, I.P.C. and 304 (1), I.P.C. are not attracted and the case falls within the fore corners of part II of Section 304, I.P.C. only. 17. In reply learned A.G.A. submitted that looking to the factual scenario and nature of injuries inflicted to the deceased, the trial Court was justified in recording conviction under Section 302, I.P.C. 18. We have considered the rival submissions of the learned counsel for the opposite party. Section 299, I.P.C. provides : 299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Note : Illustrations and explanations omitted. Section 300, I.P.C. provides : 300. Murder. Note : Illustrations and explanations omitted. Section 300, I.P.C. provides : 300. Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous 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 as aforesaid. Note : Exceptions omitted. 19. A bare perusal of the above provisions reveals that if the death is caused by doing an act with the intention of causing death or with intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom harm is caused or if it is done with an intention of causing such bodily injury to any person which is sufficient in the ordinary course of nature to cause death or if the person commit the act knows that it is so eminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death then such an act would come within the definition of culpable homicide amounting to murder punishable under Section 302, IPC. If the case is covered by any of the exceptions provided in Section 300, IPC, it would amount to culpable homicide not amounting to murder punishable under Section 304, IPC. 20. If the case is covered by any of the exceptions provided in Section 300, IPC, it would amount to culpable homicide not amounting to murder punishable under Section 304, IPC. 20. In cases of culpable homicide not amounting to murder, if the act by which the death is caused is done within the intention of causing death or of causing such bodily injury as is likely to cause death, such case would be punishable under part I of Section 304, I.P.C., but if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death, it would be punishable under part II of Section 304, I.P.C. 21. In the case of Rajinder v. State of Haryana, (2006) 2 SCC (Cri) 469, the facts were that the accused getting angry with the victim and declaring that he would teach the victim a lesson fired a shot hitting the victim at right thigh and the victim died. The Hon’ble Supreme Court held the offence to be covered under part II of Section 304, I.P.C. 22. In the case at hand, the facts are similar. 23. When the factual background is tested on the principles set out above, it is clear that the appellant had no motive or intention to commit murder of the deceased. The deceased did not suffer injury on any vital part of her body and that the injury caused to the deceased on the left thigh was not sufficient in the ordinary course of nature to cause death. Though the appellant had the knowledge that his act was likely to cause death, under the facts and circumstances of the case, it cannot also be inferred that the appellant knew that his act was so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death. Therefore, we are of the view that Section 302, I.P.C. has no application in the instant case and the act of the appellant in causing injury to deceased is squarely covered by part II of Section 304, I.P.C. 24. Regarding sentence, we cannot loose sight of the fact that at present the appellant is about 70 years of age. Therefore, we are of the view that Section 302, I.P.C. has no application in the instant case and the act of the appellant in causing injury to deceased is squarely covered by part II of Section 304, I.P.C. 24. Regarding sentence, we cannot loose sight of the fact that at present the appellant is about 70 years of age. A copy of the disability certificate issued by C.M.O., Kanpur Dehat on 2.7.1987 has been filed by learned Senior Counsel for the appellant. The perusal of the same reveals that the appellant is physically handicapped with amputation of left hand and left leg. The fact of physical disability was also brought to the notice of the learned Trial Court at the time of arguments. Considering the old age and the fact that the appellant is physically disabled, a sentence of 5 years R.I. and fine of Rs. 30,000/- under part II of Section 304, I.P.C. would meet the ends of justice. 25. We, therefore, allow the appeal in part and acquit the appellant Ravi Shanker Pandey @ Munni Pandey for the offence under Section 302, I.P.C. and instead convict him for the offence punishable under part II of Section 304, I.P.C. and sentence the appellant to undergo R.I. for a period of 5 years and to pay a fine of Rs. 30,000/-. In default of payment of fine, he shall further undergo R.I. for a period of one year. Out of the fine realised, the sum of Rs. 20,000/- shall be paid to the complainant as compensation. 26. The appellant is in jail and shall serve out the sentence as modified by this Court. 27. Let the copy of this judgment be certified to the Court concerned for compliance. The compliance report be submitted to this Court within three months. ———