Judgment This appeal is directed against the judgment of conviction dated 22.12.2004 and order of sentence dated 23.12.2004 passed by the then Additional Sessions Judge, F.T.C.-I, Dhanbad in Sessions Trial No.108 of 2003 whereby and whereunder the court having found the appellant guilty for committing murder of Hari Ram, convicted him for the offence punishable under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act and sentenced him to undergo imprisonment for life and to pay a fine of Rupees five thousand and further to undergo rigorous imprisonment for three years and to pay a fine of Rupees two thousand with default clauses. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, as has been made out in the First Information Report, is that the deceased Hari Ram had a grocery shop at Sector 11 Bhuli, ‘D’ Block at the market of Khiru Yadav. On 29.09.2002, at about 9 O’ Clock while the deceased and his son Mukesh Kumar (P.W.6) were in the shop, the appellant, who was quite angry, came over there and asked the deceased to pay money. That led to verbal altercation in between the deceased and the appellant as the deceased told the appellant that unless there would be accounting of transaction to know as to whether money is due to be paid to him, he would not be paying money to him. Upon it, the appellant took out a country made pistol from his waist and fired shot from close range over the chest of the deceased. Upon hearing the sound of gunshot, P.W.4- Shailendra Kumar, who was having a saloon by the side of grocery shop of the deceased and one person from ‘Khatal’ came over there and took the deceased along with P.W.6 to Bhuli hospital where first aid treatment was given and then they were asked to take him to Central hospital, Dhanbad. While the deceased was being taken to Central hospital, Dhanbad, he died in the way. Thereupon, they took the dead body to Bhuli police station where the informant Mukesh Kumar (P.W.6) gave his fardbeyan (Ext.3/3) which was recorded by Surendra Prasad (P.W.-8), Officer-in-Charge of Bhuli police station at 11.10 a.m. Upon which, a formal F.I.R. (Ext.5) was drawn. Thereafter, the Officer-in-Charge, Surendra Prasad took up the investigation. Thereupon, they took the dead body to Bhuli police station where the informant Mukesh Kumar (P.W.6) gave his fardbeyan (Ext.3/3) which was recorded by Surendra Prasad (P.W.-8), Officer-in-Charge of Bhuli police station at 11.10 a.m. Upon which, a formal F.I.R. (Ext.5) was drawn. Thereafter, the Officer-in-Charge, Surendra Prasad took up the investigation. During investigation, he held inquest on the dead body of the deceased and prepared an inquest report (Ext.4/1). Thereafter, the I.O. came to the place of occurrence from where he seized pellet smeared with blood and broken country made pistol but of which was separate from barrel, which was also in two pieces under the seizure list (Ext.6). The I.O. sent the dead body for its post-mortem examination which was conducted by Dr. Shailendra Kumar (P.W.7), who upon holding autopsy did find following injuries on the person of the deceased:- (i) Wound of entry caused by fire arm 1½” X 1” X abdomen deep on the mid line of the abdomen. There was bleeding. Edges of injury were inverted and were found blackened scotched and tattooed and unburnt grains of gun powder were found around edges of wound. (ii) Wound of exit caused by fire arm ½” round lacerated wound over the back 4” away from the middle line near 9th and 10th ribs. 3. The I.O. in the meanwhile sent the country made pistol for its examination before the Sergeant Major, who upon examination, submitted its report(Ext.-7) reporting therein that since it was found in broken condition, presently it is not effective. One empty cartridge was found fixed over the barrel, which is indicative of the fact that the firing could not have been made. However, it has been reported that the seized pellet was the part of the empty cartridge. After completion of the investigation, the I.O. submitted the charge-sheet upon which cognizance of the offence was taken and when the case was committed to the court of Sessions, the appellant was put on trial. During trial, the prosecution examined as many as eight witnesses. Of them, P.W.1 Mukuleshwar Choudhary, P.W.2-Khiru Yadav, P.W.3- Samsuddin Ansari, P.W.4-Shailendra Kumar have been declared hostile. P.W. 5 Amit Kumar, the brother-in-law of the deceased, claimed himself to be an eye-witness by deposing that while he was coming to shop of his brother-in-law and was 30 ft. During trial, the prosecution examined as many as eight witnesses. Of them, P.W.1 Mukuleshwar Choudhary, P.W.2-Khiru Yadav, P.W.3- Samsuddin Ansari, P.W.4-Shailendra Kumar have been declared hostile. P.W. 5 Amit Kumar, the brother-in-law of the deceased, claimed himself to be an eye-witness by deposing that while he was coming to shop of his brother-in-law and was 30 ft. away from the shop, he heard sound of gun firing and then saw this appellant running away from the shop. P.W. 6 is the informant, who happened to be the son of the deceased. He has testified that while he was in the shop along with his father, appellant came and asked for money to which his father replied that he will not pay unless it is found after accounting that money is due to him and then the appellant took out a revolver from his waist and fired shot causing injury to him and then the appellant fled away. Thereafter, he with the help of other witnesses brought him to the Bhuli hospital where first aid treatment was given and the case was referred to Central Hospital. While they were taking him there, the deceased died. After closure of the prosecution case, when the incriminating materials were put to the appellant under Section 313 of Cr.P.C., the appellant denied. Thereupon, the trial court having found P.W.6 to be trustworthy whose testimony being corroborated by the medical evidence, recorded the order of conviction and sentence, which is under challenge. 4. Mr. Kashyap, learned senior counsel appearing for the appellant submits that the prosecution has failed to establish its case beyond all reasonable doubts as some circumstances existing in the case have not been explained by the prosecution and thereby the prosecution cannot be said to have proved its case beyond all reasonable doubts. 4. Mr. Kashyap, learned senior counsel appearing for the appellant submits that the prosecution has failed to establish its case beyond all reasonable doubts as some circumstances existing in the case have not been explained by the prosecution and thereby the prosecution cannot be said to have proved its case beyond all reasonable doubts. In this regard, learned counsel by referring to Ext.-7 and also the evidence of P.W. 8 to the effect that he had seized the broken barrel and the butt, which were separated from each other, submits that the prosecution is silent as to how a country made pistol was found in broken condition at the place of occurrence when the prosecution has come forward with a case that the appellant having fired one gunshot causing injury fled from there and if the prosecution has failed to give any explanation to it, the trial court should not have accepted the testimony of P.W.6, the informant. Further, it was submitted that prosecution has also come forward with the motive of the case but the prosecution has failed to establish the motive of the case. Furthermore when the prosecution came with the motive of the case and failed to establish it, it will have serious effect on the prosecution case even though the case happens to be a case of direct evidence. Lastly, it was submitted that in any view of the matter, the appellant cannot be said to have committed offence of culpable homicide rather the facts and circumstances appearing in this case would go to show that the appellant had no intention to commit murder of the deceased as the occurrence had taken place in a sudden fight and that the appellant had never taken undue advantage or acted in a cruel or unusual manner and, therefore, the trial court committed illegality in recording the order of conviction for the offence punishable under Section 302 of the Indian Penal Code and hence the judgment of conviction and order of sentence is fit to be set aside. 5. 5. As against this, learned counsel appearing for the State submits there has been no reason to disbelieve the testimony of P.W.6, who at the time of occurrence, was present along with the deceased who has testified that the appellant had fired gunshot from a country made pistol hitting over the chest causing injury resulting into his death, which finds support from the medical evidence and thereby the trial court never committed any illegality in recording the judgment of conviction and order of sentence and hence it needs no interference by this Court. 6. Having heard learned counsels appearing for the parties and on perusal of the record, we do find that it is the case of prosecution that the appellant at the time of occurrence came to the shop of the deceased and asked the deceased to pay back the money which led to altercation in between both the persons as the deceased did tell the appellant that unless there would be accounting, he will not be making payment of the money to him. During that altercation, the appellant took out the revolver from his waist and fired shot. The P.W. 6 in his testimony at para 22 has clearly testified about the altercation being taken place before the deceased was shot at. He has also testified that when the deceased refused to pay back the money, the altercation took place, which may not have confined to verbal altercation rather it in all probability would have aggravated when the appellant would have taken out his revolver from his waist and the deceased in a probability would have caught hold the revolver during which course both the persons would have applied force as a result of which the country made pistol got broken into two pieces. But from the evidence of P.W. 6, it is quite evident that the fire shot from the revolver of the appellant caused injury. However, as we have found that all happened in a sudden fight in a heat of passion when there had been quarrel in between the parties, the appellant cannot be said to have committed the offence punishable under Section 302 of the Indian Penal Code. 7. However, as we have found that all happened in a sudden fight in a heat of passion when there had been quarrel in between the parties, the appellant cannot be said to have committed the offence punishable under Section 302 of the Indian Penal Code. 7. Accordingly, the appellant instead of being convicted for the offence punishable under Section 302 of the Indian Penal Code is convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code as nothing is there on the record to establish that the appellant had taken any undue advantage or acted in a cruel or unusual manner during the occurrence. Accordingly, the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code is altered to an offence punishable under Section 304 Part-I of the Indian Penal Code and is sentenced to undergo for the period already undergone. The conviction and sentence passed for the offence punishable under Section 27 of the Arms Act remains intact. Thus, with this modification in the judgment of conviction and order of sentence, this appeal is dismissed. Consequently, the appellant is directed to be released forthwith, if not wanted in any other case.