JUDGMENT Rakesh Tiwari, J.: - We have heard Sri S.N. Tripathi, learned A.G.A., appearing for the appellant-State, Sri Dharam Pal Singh, Senior Counsel, assisted by Sri V. Ram and Sri I.K. Upadhyaya, appointed as Amicus Curiae, appearing on behalf of accused-respondent. Sri K.K. Tripathi, appearing for the revisionist, in connected criminal revision, has also been heard. Perused the record. 2. Government appeal no. 225 of 1983 is listed along with Government appeal no. 226 of 1983, Criminal appeal no. 2789 of 1982 and Criminal revision no. 162 of 1983. 3. Government appeal no. 225 of 1983 has been filed on behalf of State of U.P. against the judgment and order dated 5.11.1982 passed by Sessions Judge, Kanpur in Sessions Trial No. 587 of 1981, praying thus: "It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow the appeal and set aside the order of acquittal, convict and sentence him according to law. It is further prayed that this Hon'ble Court may be pleased to issue a bailable warrant against the accused-respondent according to law". 4. Government appeal no. 226 of 1983 is also against the judgment and order dated 5.11.1982 impugned in government appeal no. 225 of 1983. In this government appeal, the State has prayed to allow the appeal and suitably enhance the sentence to the accused-respondent awarded by the learned Sessions Judge, Kanpur. 5. Criminal appeal no. 2789 of 1982 also challenges the judgment and order dated 5.11.1982 passed by the learned Sessions Judge, Kanpur, by which accused-appellant, Ram Asrey has been sentenced to undergo R.I. for five years under section 304 I.P.C.. In this appeal, it has been prayed that appeal may be allowed and the appellant be acquitted and released on bail. 6. Lastly Criminal revision no. 162 of 1983 has been preferred under section 397/401 I.P.C. by Sharad Kumar Bajpai son of Nanhey Lal Bajpai, R/O 117/K/9 Gutaiya Bazar, Kanpur against Ram Asrey and State of U.P.. This criminal revision has been preferred for enhancement of sentence against the judgment and order dated 5.11.1982 passed by learned Sessions Judge in Sessions Trial No. 587 of 1981 convicting and sentencing the accused-respondent no. 1,Ram Asrey under section 304 I.P.C. 7. This criminal revision has been preferred for enhancement of sentence against the judgment and order dated 5.11.1982 passed by learned Sessions Judge in Sessions Trial No. 587 of 1981 convicting and sentencing the accused-respondent no. 1,Ram Asrey under section 304 I.P.C. 7. Since all the aforesaid government appeals, criminal appeal and criminal revision, have been preferred against the same judgment and order dated 5.11.1982 passed by learned Sessions Judge, Kanpur in Sessions Trial No. 587 of 1981, and are entwined of the same facts and circumstances, they are being decided by a common judgment. 8. Briefly stated the case of prosecution before the court below was that a written report (Ext. Ka.1) was submitted by the informant, Sharad Kumar Bajpai son of Nanhey Lal Bajpai, R/O 117/A/9 Gutaiya Bazar, Kanpur at Police Station-Swarup Nagar, Kanpur informing that Nanhey Lal Bajpai (since deceased) was landlord of House No. 117/A/9 Gutaiya Bazar, Kanpur. Accused-Ram Asrey was his tenant on the second floor of the house who was serving as police constable at the time of occurrence and was posted as shadow of one Ram Chandran of 'Rallis India' Magarwara, District-Unnao. Deceased, Nanhey Lal Bajpai, resided in another house in Mohalla-Gutaiya Bazar, Kanpur about 200 yard from the house of the tenant of the accused, Ram Asrey. According to the version of FIR, first informant Sharad Kumar Bajpai son of deceased, Nanhey Lal Bajpai had gone to the house of accused, Ram Asrey on 4.9.1981 at about 9.00 P.M. for taking the rent from him. Instead of paying rent, the accused, Ram Asrey (tenant) hurled abuses and on this first informant, Sharad Kumar Bajpai returned to his house at about 10.30 P.M. and he told his father about the incident whereupon Nanhey Lal Bajpai (since deceased) got up and went to the house of the accused. He knocked his door, but the accused initially did not open the door. After great effort and hot talks, accused ultimately opened the door at about 11.30 P.M.. Nanhey Lal Bajpai entered into the house of the accused, resulting into hot exchanges between him and the tenant accused, Ram Asrey. 9. Ram Singh, Pramod Kumar, Shyam Babu, Krishna Kumar and a number of other persons on hearing the altercation came there. Accused, Ram Asrey, is said to have fired three successful shots injuring Nanhey Lal Bajpai, who fell down on receiving the gun shot injuries. 10. 9. Ram Singh, Pramod Kumar, Shyam Babu, Krishna Kumar and a number of other persons on hearing the altercation came there. Accused, Ram Asrey, is said to have fired three successful shots injuring Nanhey Lal Bajpai, who fell down on receiving the gun shot injuries. 10. In the aforesaid backdrop, a written report (Ext. Ka-1) was submitted by the informant, Sharad Kumar Bajpai at P.S. Swarup Nagar, Kanpur at about 12 O'clock in the night on 5.9.1981. The distance of police station from the place of occurrence is said to be about 5 furlongs. Thereafter, a case under section 307 IPC was registered and injured Nanhey Lal Bajpai was taken to the Hallot Hospital where he was declared dead by the doctor, hence the case was converted under section 302 IPC. After making entry in the general diary on 5.9.1981 at 3.30 A.M., investigation of incident was taken by Sheo Ram Sharma (P.W. 10), who was posted as SSI in P.S. Swarup Nagar, Kanpur. The Investigating Officer reached at the spot and was informed that SI J.P. Singh (P.W. 9), In-charge of P.S. Swarup Nagar, outpost had already arrested the accused and taken to Thana. The statements of SI, J.P. Singh, Sharad Kumar Bajpai and of other witnesses were also recorded by him at Thana. Subsequently, he prepared memo of clothes from the dead body of Nanhey Lal Bajpai (since deceased) and deposited the sealed articles in Thana. He also took blood stained (Ext. 10) and plain earth (Ext. 11) from the place of occurrence. Recovery memo of pistol and live cartridge was also prepared on the same day i.e. on 4.9.1981 by the I.O. After holding inquest on the body of the deceased, S.I. Harish Chandra Dubey, who was posted at P.S. Swarup Nagar, prepared the Panchayatnama, photo lash and challan lash and thereafter body of the deceased was sealed and sent for post mortem examination which was conducted by Dr. U.R. Gupta (P.W. 3) posted as Medical Officer, ESI Shastri Nagar, Kanpur at about 2.00 P.M. on 5.9.1981. According to the post mortem report deceased was about 40 years of age and had died about half day before. The following ante mortem injuries on the person of the deceased were found by the said doctor: 1. U.R. Gupta (P.W. 3) posted as Medical Officer, ESI Shastri Nagar, Kanpur at about 2.00 P.M. on 5.9.1981. According to the post mortem report deceased was about 40 years of age and had died about half day before. The following ante mortem injuries on the person of the deceased were found by the said doctor: 1. Gunshot wound of entry 1 cm x 1 cm x chest cavity with the margins inverted on the left side chest 7 cms from the mid-line and 13 cm below the clavicle passing obliquely towards medial side. Blackening present around the wound. 2. Gunshot wound of entry 1 cm x 1 cm x through and through on the upper and medial part of right thigh with the margins inverted, 14.5 cm from the anti superior illiac spine, blackening present around the wound. 3. Gunshot wound of exit with the margins averted 21.5 cm x 1 cm on the lower part of right buttock ( corresponding with injury no. 2) 28 cm below the highest point of the illiac west. 11. In the opinion of the doctor, these injuries were caused by fire arm resulting death of Nanhey Lal Bajpai (since deceased). 12. On committal to the court of Sessions Judge, Kanpur, charges were framed on 25.3.1982 against the accused person, Ram Asrey for committing the offence under Section 302 IPC. Accused Ram Asrey denied the charges and claimed to be tried. 13. The prosecution in support of its' case examined 12 witnesses, namely Sharad Kumar Bajpai (P.W. 1), Ram Babu Gupta (P.W. 2), Dr. U.R. Gupta (P.W. 3), Dr. G.K. Tiwari (P.W. 4), Onkar Nath Pandey (P.W. 5), Manorama (P.W. 6), Jawahar Singh (P.W. 7), Dr. R.K. Singh (P.W. 8), Dr. J.B. Singh (P.W. 9), Sheo Ram Sharma (P.W. 10), C.L. Gupta (P.W. 11) and R.S. Pandey (P.W. 12), whereas accused, Ram Asrey gave statement under Section 313 Cr.P.C. He also produced three witnesses in support of his case, namely Dev Dutt Sharma (D.W. 1), Masoom Ali (D.W. 2) and Ram Siya (D.W. 3). 14. The court below on appreciation of evidence on record sentenced the accused, Ram Asrey to undergo R.I. for five years under Section 304 IPC. He was also directed to be remained in jail to undergo the sentence and the material exhibits shall be destroyed after expiry of period of appeal. 15. 14. The court below on appreciation of evidence on record sentenced the accused, Ram Asrey to undergo R.I. for five years under Section 304 IPC. He was also directed to be remained in jail to undergo the sentence and the material exhibits shall be destroyed after expiry of period of appeal. 15. In these backdrop, the aforesaid government appeals, criminal appeal and criminal revision have been filed with the prayer mentioned above. 16. The contention of learned counsel for the appellant-State is that acquittal of accused-respondent under section 302 IPC is contrary to the evidence on record; that the circumstances relied upon by the court below for determining the guilt of the accused have wrongly been interpreted; that from the prosecution evidence it is apparent that the accused person intentionally committed the murder and the reasons given by the court below for treating to be an offence under section 304 IPC is not legally tenable; that the learned Sessions Judge has not weighted and assessed the evidence properly while acquitting the accused-respondent of the charge under section 302 IPC; that taking any view of the matter and considering the total facts and circumstances of the case and the material on record, the order of acquittal is not justified in law. 17. Per contra, learned counsel for the accused-respondent submits that from the facts and evidence available on record, it is proved that the accused was the tenant of the deceased of a room having dimension of 8 x 9 feet and the accused was living all alone in the said room; that the accused-respondent fired three shots for defending himself as well as for defending the service revolver; that time and place of occurrence is admitted to the parties; that the accused-respondent was a police constable, who was deputed as a body guard of one officer of 'Rallis India' Ltd., Magarwara, District-Unnao, hence possession of service revolver on his person was natural. He has also submitted that while assessing the circumstances of the accused person objectively by the court, the mental condition and attending circumstances of the accused person himself also be looked upon by the court while assessing the evidence; that the accused-respondent had no motive for committing the said offence; that the trial court was justified in coming to the conclusion that the offence cannot be said to be 'murder' and is not covered by the four clauses of Section 300 IPC; that the court below has rightly held that the act of accused-respondent is covered by Exception (2) of Section 300 IPC and the accused acted in good faith of right of private defence of person and property, but exceeded his power. 18. It is also stated that whole controversy is whether the alleged offence committed by the accused-respondent is covered by Part-I or Part-II of Section 304 IPC, but it is clear that aforesaid Part-I applies where the act by which death is caused, is done with the intention of causing death. 19. Lastly, he has submitted that from the totality of the circumstances, it is clear that the death caused by the accused-respondent cannot be said to be done with the intention of causing death, but it can be said that the act of the accused was with the knowledge that it is likely to cause death; that in any view of the matter, the offence against the accused person will not travel beyond the offence under Part II of Section 304 IPC, and if the accused had fired by his revolver, the injury on the chest of deceased was reasonably possible. It is not a case where the deceased was standing at some distance and the accused had fired targeting the chest, hence scuffle between the two is natural and possible. The view taken by the trial court is a reasonable possibility and cannot be said to be perverse. In such circumstance, the interference by the High Court is not required either in appeal against acquittal or in an appeal for enhancement of sentence. 20. It is brought to our notice that the principles for deciding the appeal against acquittal have been discussed in large number of cases. Some of these cases have been considered by the Apex Court in Ghulery Lal Vs. State of U.P. (2008) 10 SCC 450 . 20. It is brought to our notice that the principles for deciding the appeal against acquittal have been discussed in large number of cases. Some of these cases have been considered by the Apex Court in Ghulery Lal Vs. State of U.P. (2008) 10 SCC 450 . After discussing the leading case decided by the Supreme Court in paragraphs 39 to 69, the Apex Court in paragraph 70 of the judgment has summarized the principles thus: "70. In the light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached- one that leads to acquittal, the other to conviction- the High Courtsppellate courts must rule in favour of the accused." Upon hearing learned counsel for the parties, and on perusal of record, the following admitted facts are carved out: 1. that Nanhey Lal Bajpai (since deceased) was the landlord of house no. 117/K/9 Gutaiya Bazar, Kanpur; 2. that Sharad Kumar Bajpai son of deceased, Nanhey Lal Bajpai had informed his father that accused-respondent, Ram Asrey who was a constable had abused him when he had gone to demand rent and had not paid the same; 3. that Nanhey Lal Bajpai (since deceased) was the landlord of house no. 117/K/9 Gutaiya Bazar, Kanpur; 2. that Sharad Kumar Bajpai son of deceased, Nanhey Lal Bajpai had informed his father that accused-respondent, Ram Asrey who was a constable had abused him when he had gone to demand rent and had not paid the same; 3. that Nanhey Lal Bajpai (since deceased) along with his son had gone on 4.9.1981 at about 9.00 P.M. at the house in which accused-respondent, Ram Asrey was living as a tenant and had asked him to open the door which was refused to be opened by accused-respondent, Ram Asrey; 4. that hotted words have taken place between Nanhey Lal Bajpai (since deceased) and accused-respondent, Ram Asrey, for non payment of rent and ultimately accused-respondent, Ram Asrey opened the door at about 11.30 P.M.; 5. that there was electric light in the room and Nanhey Lal Bajpai was unarmed; 6. that Nanhey Lal Bajpai (since deceased) was shot three times upon by accused-respondent, Ram Asrey from his service revolver on which causing fatal injuries, the deceased fell down; 7. that the incident was heard by number of persons and was also seen by Sharad Kumar Bajpai who was standing about one feet away from the door. 21. In the backdrop of aforesaid, and the appending circumstances, after testing the prosecution story, it is clear that act of accused-respondent is not covered by either of the Exceptions of Section 300 IPC. The trial court in the fact and circumstances has wrongly interpreted the provision of law in determining the guilt of accused-respondent and giving the benefit of Part-II of Section 304 IPC for the reason that it is established from the facts and circumstances of the case that accused-respondent had intentionally fired upon Nanhey Lal Bajpai (since deceased) targeting his chest and committing his murder. Therefore, act of murder does not fall within the provision of Part-I or Part-II of Section 304 IPC for granting the benefit to the accused. The court below appears to us has not weighed and assessed the evidence properly while acquitting the accused-respondent of charges under section 302 IPC and by taking view of punishing him under section 304, Part II of IPC. The court below appears to us has not weighed and assessed the evidence properly while acquitting the accused-respondent of charges under section 302 IPC and by taking view of punishing him under section 304, Part II of IPC. Our conclusions are based on reasoning that Sharad Kumar Bajpai son of Nanhey Lal Bajpai (since deceased) had gone to the house of accused-respondent, Ram Asrey for demanding his rent. He was known to the tenant, but was abused and rent was not paid to him. Later on when Sharad Kumar Bajpai along with his father Nanhey Lal Bajpai came there and hot talk was continued between him and the tenant-accused, Ram Asrey for about 45 minutes regarding payment of rent, the door was then opened by the accused-respondent. There is absolutely no evidence or circumstance to establish that there was any apprehension of danger to the life or property of accused entitling him to exercise right of private defence. Therefore, there does not appear any substance in the contention of learned cousenl for accused-respondent that accused had apprehension of danger of his property and life and only then he fired. Repetition of fire further negates his conttention. 22. Sequence of admitted facts clearly show that Nanhey Lal Bajpai was recognized by the accused-respondent, but he had not opened the door for about 45 minutes and had kept on arguing regarding payment of rent, therefore, contention of learned counsel for the accused-respondent that he fired three shots for defending himself as well as for defending his service revolver in misapprehension that Nanhey Lal was armed and there was threat of his life, is misconceived. Had the accused no intention of committing the offence, he would not have fired upon the landlord Nanhey Lal Bajpai(since deceased) when he could see him unarmed inside the room. The accused-respondent was a police constable, who was deputed as shadow/body guard to an officer of 'Rallis India' Ltd. Such constables receive training before they are attached as shadow to a V.I.P. Merely because of hot talk, he should have a cool mind in grave situation. In the facts on record, it cannot be said that his mental condition and attending circumstances were so that he was afraid of his life and service revolver, hence the accused-respondent upon seeing the landlord (since deceased) had fired upon him. 23. In the facts on record, it cannot be said that his mental condition and attending circumstances were so that he was afraid of his life and service revolver, hence the accused-respondent upon seeing the landlord (since deceased) had fired upon him. 23. As regard motive of accused-respondent is concerned, suffice it to say that he had no intention to pay the rent which is proved from the facts and circumstances that he firstly refused to pay the rent to Sharad Kumar Bajpai and thereafter to the landlord himself (since deceased). Moreover, motive lies embedded in the mind of the accused, but comes out in action. The facts and circumstances in this case speak of reliable ocular witnesses which have also been believed by the trial court for convicting the accused as the prosecution case is proved beyond all reasonable doubts. 24. We have considered the aforesaid facts, circumstances and also the admitted facts, and are of the view that the accused-respondent has committed an offence of murder as this case is not covered by Exception 4 of Section 300 I.P.C. which reads as under: "Exception 4.-Culpable homicide is not murder if it is committed without premiditation 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. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault." 25. His case would not fall under Part-I or Part-II of Section 304 IPC, but by Section 300 IPC as the accused has taken undue advantage and acted in a cruel manner or unusual manner by firing three gun shots in chest thigh and right buttock which reflects clear intention to murder particularly when he had recognised the deceased as his landlord before opening the door. Therefore, from the totality of the fact and circumstances, the record shows that the trial court has wrongly convicted and sentenced the accused under section 304 Part-II in stead of convicting and sentencing him under section 302 IPC. The view taken by the court below is erroneous in law and its' judgment has caused grave miscarriage of justice. 26. Accordingly, we alter the conviction and sentence dated 5.11.1982, and convict and sentence the accused-respondent, Ram Asrey for life imprisonment under Section 302 I.P.C. with a fine of Rs.10,000/-. The view taken by the court below is erroneous in law and its' judgment has caused grave miscarriage of justice. 26. Accordingly, we alter the conviction and sentence dated 5.11.1982, and convict and sentence the accused-respondent, Ram Asrey for life imprisonment under Section 302 I.P.C. with a fine of Rs.10,000/-. In case of default of payment of fine he is to further under go a sentence of one year. 27. In result both the government appeals and criminal revision are, accordingly, allowed. As a consequence thereof, the criminal appeal no. 2789 1982 is dismissed. Accused-respondent, Ram Asrey is directed to surrender before the learned C.J.M. concerned, to serve out the sentence awarded to him under Section 302 I.P.C. within a period of one month failing which learned C.J.M. shall commit him to custody by following procedure established by law. 28. Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance. 29. Sri I.K. Upadhyaya, appointed as Amicus Curiae to argue the case on behalf of accused-respondent, would get Rs.2,100/- as his remuneration fee within a period of one month.