JUDGMENT Surendra Vikram Singh Rathore, J. – Heard Mr. Rajiv Mishra, Advocate holding brief of Ms. Soniya Mishra, learned counsel for the appellant, Mrs. Smiti Sahai, learned A.G.A. for the State and perused the lower court record. 2. Under challenge in this appeal is the judgment and order dated 11.10.2007 passed by learned Additional Sessions Judge/Fast Track Court No. 3, Hardoi in Sessions Trial No. 878 of 2005, arising out of Case Crime No. 101 of 2005 and Sessions Trial No. 879 of 2005 arising out of Case Crime No. 115 of 2005, Police Station Behta Gokul, District Hardoi, Sessions Trial No. 880 of 2005 arising out of Case Crime No. 141 of 2005 Police Station Behta Gokul, District Hardoi whereby appellant Praveen Kumar Dixit alias Majnu and Raheem Bux alias Mulla were convicted under Section 302/34 I.P.C. and were sentenced with imprisonment for life also with fine of Rs. 5,000/- each with default stipulation of six months additional imprisonment. Appellant Praveen Kumar Dixit was further convicted under Section 3/25 of the Arms Act and was sentenced with imprisonment for a period of three years and also with fine of Rs. 2,000/- with default stipulation of one month additional imprisonment. Appellant Raheem Bux alias Mulla was also convicted and under Section 4/25 of the Arms Act and was sentenced with one year imprisonment and also with fine of Rs. 1,000/- with default stipulation of one month's additional imprisonment. However, both the appellants were acquitted of the charge under Section 504 I.P.C. All the sentences were directed to run concurrently. 3. In brief the case of the prosecution was that complainant Smt. Kamla Devi got an F.I.R. Scribed by Manu Singh on 30.6.2005 and submitted it at Police Station Behta Gokul on the same day at 18: 15 hours alleging therein that on that day at about 3: 00 p.m., her son Shiv Kumar along with appellants Praveen Kumar Dixit and Raheem Bux and one Bhaiya Lal were taking liquor together. Under the effect of the said liquor, appellant Praveen Kumar Dixit alias Majoo started abusing her son Shiv Kumar. Hearing the abuses, Bhaiya Lal escaped from the said place. Praveen Kumar Dixit was having a country-made pistol in his hand, Raheem Bux was having a knife in his hand. Under the effect of the said liquor, appellant Praveen Kumar Dixit alias Majoo started abusing her son Shiv Kumar. Hearing the abuses, Bhaiya Lal escaped from the said place. Praveen Kumar Dixit was having a country-made pistol in his hand, Raheem Bux was having a knife in his hand. They dragged Shiv Kumar towards west of the village in the field of Avdhesh Kumar Bajpai where Praveen Kumar fired at him with his country-made pistol and Raheem Bux gave blows of knife due to which he died. The incident is alleged to have been witnessed by Manu Singh, Jitendra Vikram Singh and other persons of the village. On the basis of this F.I.R., case was registered, investigation proceeded. During investigation, place of occurrence was inspected and its site plan was prepared. From the place of occurrence, empty cartridge was recovered and its memo was prepared. Inquest proceedings were conducted on the body of the deceased. After completing the necessary formalities, the dead body was sent for postmortem, which was conducted on 1.7.2005 at 3: 00 p.m. The duration of death was found to be about one day and following ante-mortem injuries were reported by the doctor in the postmortem: - (i) Firearm wound of entry 1.5 cm x 1.5 cm x chest cavity deep present on left side upper part of chest margins were inverted and lacerated. (ii) Firearm wound of exit 2 cm x 1.5 cm communicating to injury no. (i) margins everted and lacerated. (iii) Multiple incised wound present on left side neck in an area of 12 cm x 8 cm measuring 5 cm x 2 cm to 3 cm x 1.5 cm x muscle to bone deep margins are clean cut. (iv) Multiple incised wound in an area of 8 cm x 6 cm, on forehead size varying from 5 cm x 3 cm to 2 cm x 1 cm x bone deep. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries. During the course of investigation, on 23.7.2005 appellant Raheem Bux was taken on police remand and on his pointing out, the weapon of offence was recovered and its memo was prepared and on the basis of the same, Case Crime No. 115 of 2005 under Section 4/25 Arms Act was registered. During the course of investigation, on 23.7.2005 appellant Raheem Bux was taken on police remand and on his pointing out, the weapon of offence was recovered and its memo was prepared and on the basis of the same, Case Crime No. 115 of 2005 under Section 4/25 Arms Act was registered. On 30.7.2005 appellant Praveen Kumar Dixit was taken police remand and on his pointing out, weapon of offence, which was a country-made pistol was recovered and a separate memo was prepared, on the basis of which, Case Crime No. 141 of 2005 under Section 3/25 of the Arms Act was registered. These two cases under the Arms Act were also tried along with the main offence. 4. After completing the investigation, charge sheet was filed in all the three above-mentioned cases, which were tried together. 5. The defence of the appellants was of total denial and their false implication. However, no evidence in defence was adduced on behalf of the appellants. 6. In order to prove its case, the prosecution has examined, PW-1 complainant Kamla Devi, who was not an eye-witness. PW-2 Manu Singh is an eye-witness and also scribe of the F.I.R. PW-3 Constable Ram Asrey, who has prepared chik report and G.D. of the case under Section 302 I.P.C., PW-4 Neeraj Singh is a witness of inquest. PW-5 Bhaiya Lal has seen the initial part of this incident as he was also taking liquor with these persons. PW-6 Dr. S.C. Kaushal has conducted postmortem on the body of the deceased. PW-7 S.I. Gauri Shankar Mishra has taken appellant Raheem Bux on remand and has made recovery of knife on his pointing out. PW-8 Pushp Raj Singh, a witness of recovery on the pointing out of appellant Praveen Kumar Dixit. PW-9 S.S.I. Arun Kumar Ram, Investigating Officer of this case, PW-10 S.I. Surendra Singh, 2nd Investigating Officer, who has taken up the investigation from 12.9.2005. PW-11 S.I. Manohar Lal, who has investigated the case under Section 3/25 of the Arms Act and has also investigated Case Crime No. 115 of 2009, under Section 4/25 of the Arms Act. 7. No evidence in defence was adduced on behalf of the appellants. 8. After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal. 9. 7. No evidence in defence was adduced on behalf of the appellants. 8. After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal. 9. Submission of learned counsel for the appellants was that he does not intend to challenge the conclusion of the trial court that the prosecution has been able to prove its case beyond reasonable doubt but he has only restricted his argument on the point that the offence was committed by the accused appellants while they were under intoxication. There was no prior enmity or prior planning. It was only because of sudden provocation and all of a sudden, on the spur of moment the incident has taken place. So it was not a per-meditated and pre-planned act of the appellants. Hence the offence committed by the appellants would not travel beyond the purview of Section 304 Part (I) I.P.C., and this aspect of the matter was not considered by learned trial court. In support of his argument, learned counsel for the appellants has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Murlidhar Shivram Patekar & Anr. v. State of Maharashtra reported in 2014 (3) JIC 830 (SC). 10. Mrs. Smiti Sahai, learned A.G.A. for the State has submitted that the evidence of the witnesses coupled with the recovery of weapon of offence on the pointing out of the appellants and report of the Forensic Science Laboratory clearly establishes that the prosecution was successful in proving its case beyond reasonable doubt. She has also argued that the offence committed by the appellants would fall within the purview of Section 302 I.P.C. as repeated blows of knife were given by appellant Raheem Bux. 11. Per contra, learned counsel for the appellants has submitted that appellant Praveen Kumar Dixit has made only one fire and no effort was made to repeat the same. It was only under the effect of intoxication that offence was committed. The deceased and the appellant were on friendly terms as they were taking liquor together and it was only because of some dispute or altercation, this unfortunate incident has taken place. So it cannot be said that offence caused by the appellants was an intentional or pre-planned act. 12. In this case regarding facts only PW-2 Manu Singh and PW-5 Bhaiya Lal have been examined. So it cannot be said that offence caused by the appellants was an intentional or pre-planned act. 12. In this case regarding facts only PW-2 Manu Singh and PW-5 Bhaiya Lal have been examined. Admittedly PW-1 Kamla Devi, who is complainant of this case and is mother of the deceased, is not an eye-witness of this incident. The details of the incident of this case were furnished by PW-2 Manu Singh, who happens to be the son of Raja Bux Singh, Jeth of PW-1 Kamla Devi. PW-1 complainant Kamla Devi in her evidence has admitted that she went to the police station with PW-2 Manu Singh and narrated the story to police officer. She was asked to get it scribed then they came out of the police station and after taking paper, Manu Singh wrote the F.I.R. According to the evidence of PW-2 Manu Singh, the first part of the incident, where the appellants were taking liquor with the deceased and PW-5 Bhaiya Lal, was not witnessed by PW-2 Manu Singh. 13. Perusal of the evidence of PW-2 Manu Singh shows that he has specifically denied the fact that he has seen the incident when they were taking liquor together. He has stated that when he was going to see his field then he saw the accused persons, who were taking deceased by hanging him on their shoulders. However, he has also stated that all of them were under influence of intoxication at that time. PW-5 Bhaiya Lal has also stated that they were taking liquor together when he went there then he was asked to bring water then he made arrangement of water in a Kamandal and also took liquor with them. During the said period, a glass of liquor was offered again by appellant Praveen Kumar Dixit to deceased Shiv Kumar which fell down as Shiv Kumar hit the glass with his hand thereafter the incident has taken place. After the initiation of this quarrel on this point, PW-5 Bhaiya Lal escaped from the said place. He has also stated that subsequently he came to know about the incident that Shiv Kumar has been murdered so he went to see his body, which was lying in the field of Avdhesh Kumar Bajpai. It is nowhere in the prosecution evidence as to where these persons were taking liquor. He has also stated that subsequently he came to know about the incident that Shiv Kumar has been murdered so he went to see his body, which was lying in the field of Avdhesh Kumar Bajpai. It is nowhere in the prosecution evidence as to where these persons were taking liquor. In the site plan prepared by the Investigating Officer he has also not shown the place where these persons were taking liquor. But it transpires from the prosecution evidence that all the three persons were under influence of intoxication and all the three had taken liquor voluntarily and because of minor quarrel this unfortunate incident has taken place. There is nothing on record to infer that there was any prior enmity of the appellants with the deceased or they have any criminal background. On the contrary, a suggestion has been given from the appellants side that there was enmity of PW-2 Manu Singh with Raheem Bux. A false F.I.R. was lodged by him even prior to this incident and the said case was subsequently acquitted. Thus from the evidence, it is clear that the incident has taken place on the spur of moment. A small quarrel that took place because the glass of liquor offered by appellant Praveen Kumar Dixit fell down because of refusal of deceased Shiv Kumar that resulted into this unfortunate incident. 14. Though learned counsel for the appellants has not challenged the finding of conviction but in spite of being the court of first appeal, we have gone through the entire evidence. All the witnesses of facts have supported the case of the prosecution. Their evidence stands corroborated by the medical evidence. Recoveries on the pointing out of the appellants under Section 27 of the Indian Evidence Act also further strengthens the prosecution case. There is direct eye-witness account of the incident. The incident has taken place in broad-day light. So the conclusion of the learned trial court that case of the prosecution stands proved was based on material available on record. The trial court has not considered whether offence would fall under Section 302 I.P.C. or under Section 304 I.P.C. 15. Learned counsel for the appellants has placed reliance in the case of Murlidhar Shivram Patekar (supra) and has also drawn the attention of this Court towards paragraph no. 19, which reads as under: - "19. The trial court has not considered whether offence would fall under Section 302 I.P.C. or under Section 304 I.P.C. 15. Learned counsel for the appellants has placed reliance in the case of Murlidhar Shivram Patekar (supra) and has also drawn the attention of this Court towards paragraph no. 19, which reads as under: - "19. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300, Indian Penal Code. In the case of Surinder Kumar (supra), this Court has held as under: 7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly. (emphasis supplied) Further in the case of Arumugam v. State (2008) 15 SCC 590 , at page 595 in support of the proposition of law that under what circumstances Exception 4 to Section 300, Indian Penal Code can be invoked if death is caused, it has been explained as under: 18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Further in the case of Satish Narayan Sawant v. State of Goa (2009) (17) SCC 724 this Court has held as under: 24. ...Section 300 Indian Penal Code further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable Under Section 304 . When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. 28. ...Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the Appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case Under Section 302 Indian Penal Code but it is a case falling Under Section 304 Part II Indian Penal Code. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the Appellantsccused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of Indian Penal Code. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the accused-Appellants was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements Under Section 300 Exception 4, Indian Penal Code have been satisfied. Therefore, the benefit of Exception 4 Under Section 300, Indian Penal Code is attracted to the fact situations and both the Appellants are equally entitled to this benefit." 16. When we examine the facts of the instant case in the light of aforementioned legal position then the only conclusion that can be arrived at would be that the deceased and the appellants were on friendly terms. They were taking liquor together. When we examine the facts of the instant case in the light of aforementioned legal position then the only conclusion that can be arrived at would be that the deceased and the appellants were on friendly terms. They were taking liquor together. It was only because of some dispute that arose during taking of the liquor, that led to this unfortunate incident. So it cannot be presumed by any stretch of imagination that there was any prior intention or prior planning of the appellants to commit the offence. It is true that appellant Raheem Bux alias Mulla has given repeated blows of knife but he was under influence of intoxication. A minor dispute has arisen which lead to this unfortunate incident. Therefore, in the peculiar facts of this case, we find that the offence committed by the appellants would fall under Section 304 Part (I) I.P.C. Keeping in view the manner in which the incident has taken place, we are of the considered view that a sentence of 11 years rigorous imprisonment would be adequate to meet the ends of justice. 17. In view of the discussion made above, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellants under Section 302 I.P.C. is hereby set aside. They are convicted under Section 304 Part (I) I.P.C. and sentence with 11 years rigorous imprisonment and also with fine of Rs. 5,000/- each with default stipulation of three months additional imprisonment. 18. The conviction and sentence of appellant Praveen Kumar Dixit alias Majnoo under Section 3/25 of the Arms Act inflicted by the trial court is also hereby confirmed. 19. The conviction and sentence of appellant Raheem Bux alias Mulla inflicted by learned trial court under Section 4/25 of the Arms Act is also hereby confirmed. 20. All the sentences shall run concurrently. The appellants are in jail. They shall serve out the sentence as modified by this Court. 21. The period of detention already undergone by the appellants in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C. 22. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Order accordingly.