JUDGMENT : Moolchandani, J. 1. These two appeals, one by the accused-appellant and another by the State, have been preferred against the same judgment, therefore, we propose to dispose of these appeals by this common judgment. The instant appeals are directed against the judgment dated 23/09/1991 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Sri Ganganagar in Sessions Case No 16/91 by which the accused-appellant is convicted as under:- Under Section 304 A IPC Accused appellant has been convicted and sentenced for two years rigorous imprisonment and a fine of Rs. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months and under Section 27 (1) of Indian Arms Act, The accused appellant has been convicted and sentenced to undergo four years rigorous imprisonment and a fine of Rs. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months. 2. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months and under Section 27 (1) of Indian Arms Act, The accused appellant has been convicted and sentenced to undergo four years rigorous imprisonment and a fine of Rs. 1000/- and in default to pay fine further to undergo rigorous imprisonment for six months. 2. The contents of F.I.R. (Ex.P.12) reads as under :- Þvkt fnuakd 07-03-1991 ds oDr 6-30 p.m. ij Jh jkeksukjk;.k iq= oLlkjke tkfr ckojh mez 25 lky fuoklh ekudFksM+h us gkftj Fkkuk gksdj tqckuh bryk nh fd esjk HkkbZ jkeLo:i mez 18 lky 'kkfn;ksa esa ukpk djrk Fkk gekjs xkoa ds jkorkjke tkV ds yM+ds ?ku';ke dh vkt 'kknh Fkh vkt 'kke dks djhc 5 cts ckjkr jokuk gks jgh Fkh jkeLo:o us vkSjr ds diM+s igudj jkorkjke dh edku dh ckly esa ukp jgk FkkA brus esa [kSjnhu iq= nksus [kka eqlyeku fuoklh <+k.kh lsxyk ftlds ikl ,d uky 12 cksj cUnwd Fkh ftlus ,d Qk;j gok esa fd;k o nwljk dkjrwl canwd esa yksM+ djds jkeLo:i dh rjQ cUnwd pykbZ ftlls jkeLo:i dh ckbZ duiVh ij ihNs dh rjQ xksyh yxh o og tehu ij fxj x;k rFkk 2&3 feuV esa mldh e`R;q gks xbZ ml oDr ekSds ij nqYgk ?ku';ke o dkyw <+ksyh rFkk nwYgs dk cM+k HkkbZ 'kHkksirjke bR;knh Hkh ekSds ij [kM+s Fks ftUgksus Hkh okd;k ns[kk gS eSa nkSM+dj vius ?kj x;k esjs firk oLlkjke o ukuk isekjke dks cqykdj yk;k ftUgksus Hkh yk'k dks ns[kk fQj eSa o Jh 'kHksirjke] ukuk isekjke fjiksVZ djus Fkkus vk;s gSa jkeLo:i dh yk'k ekSdk ij iM+h gS esjs HkkbZ jkeLo:i dks] [kSjnhu iq= nksus [kka eqlyeku fuoklh <+k.kh laxyk us tku ls ekjus ds fy, cUnwd dk Qk;j dj pksV ekjh gS ftlls mldh ekSr gks xbZ yk'k ekSdk ij iM+h gS dk;Zokgh dh tkosAÞ and this FIR No.64/1991 was lodged on 07.03.1991 at 6.30 p.m. 3. Heard both the sides, learned public prosecutor has contended that the trial Court has committed error in not convicting the accused-appellant under Section 302 of IPC, accused-appellant has committed murder by killing a person by firing of gun shot, which itself is a vulnerable act, per se homicidal and trial Court has committed error by convicting the accused appellant under Section 304A of IPC coupled with Section 27(1) of Arms Act, so findings of learned trial Court be reversed and appeal filed by the State be allowed. Learned counsel for the accused-appellant has contended that learned trial Court has wrongly convicted the accused person under the provisions of Arms Act, the alleged weapon was not recovered from the possession of the accused and he has uttered truth that the mishap was accidental, when the guests were celebrating gaiety of marriage in fervour and the sentence passed under Section 304A is also maximum, ends of justice will meet, if the appellant-accused is convicted with sentence already undergone after altering the judgment impugned, hence, the appeal be allowed and the sentence of the trial Court be modified. 4. Perused the material and evidence available on the record. Accused Khairdeen, while, examined under Section 313 Cr.P.C. on 16.09.1991, has assertively said that he made “two frolic fires” out of ecstasy, mistakingly Ramswaroop was shot, while he was jumping on drum beats, he was dancing and has further said that the gun was recovered from his brother-in-law (Saadu), who was staying with its licence. He has further said that he was not having any animocity with deceased Ramswaroop, he was his bosom. Shivnarayan and Pema were not there and has categorically said that fire hit Ramswaroop accidentally and the fire hit him, when he was jumping on drum beats and has said that he regrets and is innocent. With respect to the licence and custody of the gun, he has clarified that the gun licence belongs to Badruddin, who was staying with him along with weapon and he had fired the fun gun shots out of gaiety on marriage. 5. Material available on the record, as well as, the evidence, both discloses that the gun was licenced in the name of Badruddin vide Ex.P/18 (a gun licence dated 09.10.79 vide Licence No.37/79/DM/Sic/ 09.10.1979, renewed up to 31.12.1991. 6. 5. Material available on the record, as well as, the evidence, both discloses that the gun was licenced in the name of Badruddin vide Ex.P/18 (a gun licence dated 09.10.79 vide Licence No.37/79/DM/Sic/ 09.10.1979, renewed up to 31.12.1991. 6. PW-1 Sheopat Ram, though has declared hostile, but the factual aspect has very well been conveyed by this witness, he has said that on 07.03.1991, his brother Ghanshyam's marriage was scheduled and the marriage party was departing at 5.00 p.m., in the court-yard Ramswaroop was dancing wearing feminine clothes, meanwhile, accused Khairdeen came with a gun and fired air shot. The gun was single barrel and he made another air fire, deceased Ramswaroop was dancing high 3-4 ft. loftly, inadvertently a fire hit Ramswaroop on posterior side of his head, Ramswaroop died on spot, in his cross-examination, he has explained that Ramswaroop jumpingly came infront-of the gun and got hit by the bullet, mistakingly and further said that Ramswaroop was a young boy and was dancing in a pretty jumping way, wearing lady clothes and Shivnarayan was not there. He has also said that Khairdeen had expressed regrets on the site and has said that it happened mistakingly and has further said that Badruddin, brother-in-law (Saadu) of Khairdeen was staying there, per chance and Badruddin was a gun licencee. 7. PW-2 Ghanshyam is groom, in whose marriage, the mishap took place, he too has said that his marriage party was departing on 07.03.1991 at about 5.00 evening, drum beater Kaluram was beating drums and Ramswaroop was dancing wearing woman clothes, in the meanwhile, Khairdeen came with a one barrelled gun and fired an airy shot, loading another cartridge he fired, Ramswaroop was dancing in a lofty way, Khairdeen did not fire upon Ramswaroop, voluntarily, the fire hit on his head, he felt down and died, in his cross-examination, he has further said that Khairdeen did not shot at Ramswaroop from back but deceased was jumping, so it accidentally hit, though the barrel was upside, he has further said that Khairdeen was not having any hostility with Ramswaroop and they were residing far. 8. PW-4 Dr. 8. PW-4 Dr. O.P. Sharma, is a doctor, who conducted autopsy on the body of the deceased vide Ex.P/3 and he has said that he had conducted postmortem of deceased on police request and has opined that deceased died of brain rupture and injury caused by fire arm, which was sufficient to cause death. 9. PW-3 Manjoor Khan is a recovery witness, who has turned hostile, but has said that the gun was licencee weapon of Badruddin, who is brother-in-law of Khairdeen, who was taming cows, there was a drought in his village, so he was there in the house of Khairdeen and was keeping his gun there and has said that gun was given by the Badruddin to police and not by Khairdeen. So far as evidence of brother of deceased, PW-7 Sheonarayn is concerned, it is of no avail because there are several contradictions in the evidence of this witness and it is very much obvious from the perusal of the entire evidence that he has wilfully given a twisted version and has not uttered truth before the court, all other witnesses of the prosecution have not uttered akin to the version of this witness, it is also apparent and is an admitted fact that deceased Ramswaroop was a dance performer, who had been to the place of marriage, just to perform a dance item and was giving a dance in a high jumping way, wearing garb of lady, to amuse the gathering and the incident went mistakingly, it has also come in evidence of the prosecution that this witness was not present on the site of occurrence, likewise, evidence of grand-father of deceased PW-8 Pema Ram, is also of no worth, since he was not present at the site of incident and he has uttered a coloured version in order to render occult colour to the incident. 10. 10. PW-5 Kaluram is an important witness being professionally a drum beater with whom deceased Ramswaroop was accustomed to perform dance, during festivity and this witness has also narrated verity, occurred before him and has said that he had come in the marriage of Ghanshyam for beating drums, Ghansyam was adorned as groom, marriage party was about to depart, Ramswaroop was dancing there, under the garb of feminine apparel and he was beating drums, then Khairdeen came there with a gun and fired an air shot and loading another cartridge, he fired second fire, which hit to Ramswaroop in the rear side of his head, he felt down and died, in his cross-examination, he has said that out of nuptial ecstasy, Khairdeen had fired air shots and did not fire to kill Ramswaroop and has said that Ramswaroop was dancing on his drum beats loftily around 4 ft. high and was jumping up to that height and has said that he and Ramswaroop were engaged in performing such acts together, when Ramswaroop was hit, Khairdeen repented and uttered that a wrong had happened. 11. Appreciation of evidence of this witness categorically reveals that this witness Kaluram was a “drummer” engaged in performing along with Ramswaroop in festivities, where Ramswaroop was a “dance performer” and on that fateful day, Ramswaroop was dancing in feminine dress, in a jumping and loftily way on the drum beats of Kaluram, when Khairdeen, a known of the family, came there with fire arm (a gun), which was not belonging to him, but it was licenced and retained by his brother-inlaw (Saadu) Badruddin, who had been there to the house of Khairdeen because of a famine in his village to stay temporarily and without consent of the licencee, he went there with the gun and out of ecstasy, made fun fires there per chance, second fire mistakingly and inadvertently hit to the deceased, which resulted in his death. 12. 12. This story has candidly been accepted by the accused-appellant under statements, while examined under the provisions of Section 313 of Cr.P.C., though there is a major flaw in investigation, because there is no ballistic report nor the seized weapon or empty cartridge, blood soil or blood samples taken from the spot, have been sent for forensic examination, nor such evidence is there on the record, which is a major flaw on the part of prosecution because link evidence has shattered, but confessional statements of the accused Khairdeen, as made under Section 313 of Cr.P.C. has made the aforesaid infirmities dormant and the averments, which have been made by the accused-appellant under the examination of Section 313 Cr.P.C., ratifies the version of the prosecution that the accused-appellant unauthorisedly used a weapon, in contravention of the provisions of the Arms Act and recklessly committed culpability of using fire arm at the time of departure of a marriage party in a negligent way, which resulted in death of a dance performer (artist). 13. In Ramnaresh and Ors. v. State of Chhattisgarh [ AIR 2012 SC 1357 ], Hon'ble the Supreme Court held as under:- “It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Code of Criminal Procedure is upon the court. One of the main objects of recording of a statement under this provision of Code of Criminal Procedure is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Code of Criminal Procedure, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.” In State of M.P. v. Ramesh [ (2011) 4 SCC 786 ], Hon'ble the Supreme Court held as under:- “The statement of the accused made under Section 313 Code of Criminal Procedure can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. Even under the latter, he faces the consequences in law.” In State of M.P. v. Ramesh [ (2011) 4 SCC 786 ], Hon'ble the Supreme Court held as under:- “The statement of the accused made under Section 313 Code of Criminal Procedure can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 Code of Criminal Procedure cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 Code of Criminal Procedure enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.” Statement under Section 313 Code of Criminal Procedure is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. It is explicit that prosecution has given reliable, positive and trustworthy evidence, in light of which, the statements made under Section 313 of Cr.P.C. can very well be taken help of and can be used against the accused-appellant for rendering conviction. 14. Material available on the record and evaluation of evidence discloses that accused-appellant was a Muslim resident of proximity and the marriage was being performed in the family of Hindu family, there is no evidence, which could reveal that the accused-appellant was attending the marriage function on invitation but he went there in neighbourhood out of fervour and fired fun shots. It has also emerged in the evidence that two performers, namely, Kaluram, a drum beater and deceased Ramswaroop, a dancer, who used to dance under the garb of feminine dress, were performing there and Ramswaroop was jumping aloft, during the performance of dance. 15. It has also emerged in the evidence that two performers, namely, Kaluram, a drum beater and deceased Ramswaroop, a dancer, who used to dance under the garb of feminine dress, were performing there and Ramswaroop was jumping aloft, during the performance of dance. 15. Twistingly the dance performer deceased Ramswaroop, who was jolting and jumping high, suddenly went near the barrel in a lofty manner, which resulted him a gun shot injury, obviously, the act of the accused-appellant, unpardonably was an act of gross negligence, which caused death of a dance performer deceased Ramswaroop, so there appears no infirmity in the findings of conviction. 16. The incident is of bygone period of about 26 years retro in time. 17. Section 27 of Arms Act postulates: “27. Punishment for using arms, etc.- (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.” Section 5 of the Arms Act defines:- “5. Licence for manufacture, sale, etc., of arms and ammunition.- (1) No person shall- (a) use, manufacture], sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. (2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition: Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless - (a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and (b) a period of not less than forty-five days has expired after the giving of such information.” As such, the punishment prescribed for contravention of Section 5 of Arms Act is punishable under Section 27(1) of the Arms Act for a period, which shall not less than three years, though which may be extended up to seven years. 18. Considering entirety of circumstances, evidence and “admission” of the appellant-accused, as made under Section 313 of Cr.P.C., we are of the view that there is a mitigating factor to alter and modify the sentence under Section 27(1) of Arms Act from four years to three years, so far as, conviction under Section 304-A IPC and fine under both the sections is concerned, we do not find any reason to interfere with the same and are also not inclined to extend benefit of probation to the accused. 19. We, are aware that in Kunwar Pal v. State of Uttrakhand [Criminal Appeal No.1643 of 2013, decided on 08.10.2013], Hon'ble the Supreme Court has held in para No.10 that everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did. Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies, and has held appellant guilty of committing act, which caused death of deceased, since act was done with knowledge that it likely to cause death within the meaning of Section 304 Part-II IPC and altering sentence of Section 304 Part-I IPC, reduced it to a period of seven years without making any alteration in fine. But, keeping in mind elapsement of 26 years' time to the incident and the socio-economic circumstances and trite recreational modes of entertainment at that time and abnormal high jumping of deceased dance performer and negligent act of accused in a contributory way, we feel it justified by not altering the sentence to 304 Part-II IPC but maintain the findings of sentence as ordained by the trial court under Section 304-A of IPC. Resultantly, the appeal of the State is dismissed and appeal of appellant-accused Khairdeen is partly allowed and while maintaining the sentence as passed under Section 304-A IPC, the sentence passed under Section 27(1) of Arms Act is reduced from “four years” to three years and “fine” imposed under Section 304-A of IPC and Section 27(1) of Arms Act is maintained. Accused-appellant Khairdeen is on bail, hence he is directed to surrender forthwith “to serve” the rest of the sentence. Both the appeals stand disposed of in the above terms. A copy of the judgment be sent to the trial court with the record, immediately.