JUDGMENT : Karunesh Singh Pawar, J. 1. These appeals are connected appeals arising out of same judgment and order dated 30.05.2007, hence are being decided by a common judgment. 2. These appeals have been filed against the judgment and order dated 30.05.2007 passed by Additional Sessions Judge, Court No. 3, Unnao in Sessions Trial No. 424 of 2003 in case crime No. 32 of 2003 under Section 302/34, 323/34, 504 and 506 of Indian Penal Code (hereinafter referred to as IPC) registered in Police Station Auras, District Unnao. (State of U.P. Vs. Nanh Singh and others) whereby the appellants have been convicted under Section 302/34 of Indian Penal Code for life imprisonment and Rs. 5000/-fine and under Section 323/34 for six months rigorous imprisonment and in default of non depositing of fine a further punishment of six months of rigorous imprisonment. Above sentences were directed to run concurrently and the period already passed in jail to be adjusted. 3. Heard Sri Manish Kumar Singh and Jitendra Singh, learned counsels for the appellants and Sri Shailendra Singh, Advocate, brief holder for the State of U.P. 4. The prosecution case against the appellants is that on 15.01.2003 at 11:30 AM the brother of the informant Mahesh son of Darshan Singh while he was returning from the shop after taking some items in front of the shop of Radhey Shyam, the accused Nanh Singh, Virendra, Raju and Tirkha met Mahesh and said, you are big goon and started beating him with butt of country made pistol (hereinafter referred to as pistol) after the alarm was raised by Mahesh, to save him (Mahesh), the informant Rajesh, Umesh and Dharmendra ran towards Mahesh and then the accused opened fire with 'pistol' in which Umesh got injured and received pellet injury and died later on in Hospital. Mahesh also received injuries as he was beaten by butt of pistol. The injured informant took Umesh and Mahesh to Police Station Auras. This incident was also seen by other residents of Village namely Tikku, Om Parkash Pandit and Deepu. Accused lastly abused and threatened to kill. 5. The written report of the occurrence is Ex. Ka-1 dated 15.01.2003 consequently the chik FIR was registered as case crime No. 32/2003 under Sections 324, 323, 506 and 504 of Indian Penal Code against the four accused persons. Investigating Officer took up the investigation. Accused lastly abused and threatened to kill. 5. The written report of the occurrence is Ex. Ka-1 dated 15.01.2003 consequently the chik FIR was registered as case crime No. 32/2003 under Sections 324, 323, 506 and 504 of Indian Penal Code against the four accused persons. Investigating Officer took up the investigation. Inquest proceedings were conducted and after completing the necessary formalities, the dead body was sent for postmortem which was conducted on 16.01.2003 at Rani Luxmi Bai Hospital, Rajaji Puram, Lucknow by Autopsy Surgeon Dr. V. K. Mishra (PW-5). The autopsy surgeon opined that the death was due to shock and hemorrhage as a result of following ante-mortem injuries:- "Ante-mortem injuries: Multiple fired arm wound of entry present on front chest and abdomen size bearing 0.5 cm in diameter into skin deep to chest and abdominal cavity deep. Collar of abrezen ring present around the wound on opening. On opening echymosa present underneath mentioned above. Both side lungs lacerated at four places. Loops of small and large intestine are lacerated at four places. Flued blood present in thoracic and abdominal cavity. Total twenty metalic pellet recovered from the body and sent to SSP, Lucknow in a double sealed envelop through CP concerned." Mahesh PW-2 also received injuries and he was examined by Dr. Tejvir Singh, Medical Officer at PHC Auras, District Unnao on 15.01.2003. The following injuries were found on the person of Mahesh:- QVk gqvk ?kko 4 ls0eh0 xq.kk 5 ls0eh0 xq.kk 5 ls0eh0 xq.kk 2 ls0eh0 ds {ks= esa FkkA ;g pksV lj ds ckabZ rjQ FkhA ;g ukd ds tksM+ ls 9-5 ls0eh0 Åij FkkA lwtu ;qDr uhyxw fu'kku 5 ls0eh0 xq.kk 4 ls0eh0 ds {ks= esa FkkA ;g pksV ck;s gkFk dh gFksyh ds ihNs dh rjQ Fkh] ;g lHkh pksVs rkth FkhA PW-3 opined that these injuries could have been caused on 15.01.2003 at 11:30 AM with the butt of pistol. 6. After completing the investigation, charge-sheet was filed against the appellants. The committal order was passed since the case was triable by Sessions Court it was sent there and consequently charges were framed vide order dated 04.12.2003 against the accused persons under Sections 302, read with Section 34, under Section 323 read with Section 34, under Section 504 and 506 of Indian Penal Code. The charge was read out to the accused persons who pleaded not guilty and claimed to be tried. 7. The charge was read out to the accused persons who pleaded not guilty and claimed to be tried. 7. The case of defence was that the appellants have been falsely implicated in this case due to enmity. The witnesses have given false evidences. 8. To prove its case the prosecution had examined nine witnesses. PW-1 Vimlesh Singh is the brother of the deceased and eye witness and supported the case of prosecution. PW-2 is the real brother of PW-1 and deceased, and also an injured witness, has supported the case of prosecution. PW-3 Dr. Tejvir Singh has examined the injuries received by PW-2, PW-4 Chandrabhan Singh, the investigating officer supported the case of prosecution. PW-5 Dr. V.K. Mishra, the autopsy surgeon who conducted the postmortem and opined that multiple fire arm wounds of entry present on abdomen and front chest and found twenty pellets in the body of the deceased and has proved homicidal death by Ex. Ka-5. PW-6 who wrote the chik report and has proved it by Ex. Ka-6. PW-7 was Station Incharge of KGMC, PS Chowk, on 16.01.2003, who prepared the inquest report and has proved it by Ex. Ka-9. PW-8 Dharmendra Singh is also an eye witness and a chance witness has supported the case of prosecution. PW-9 Constable Ram Avtar Verma has identified the writing and signatures of Sushil Kumar, Sub Inspector, PS-Auras. 9. The defence has relied on Ex. Kha-2 an FIR relating to case crime No. 205 of 2000, under Section 307 of IPC and Kha-3 also an FIR relating to case crime No. 93/1996, under Sections 394, 302 of IPC to show the enmity with the informant and the false implication in this case. 10. Accused were examined under Section 313 of Cr.P.C. Learned Sessions Court after appreciating the evidence on record convicted the appellants vide judgment and order dated 30.05.2007 which is under challenge in this appeal. 11. At the very outset, learned counsel for the appellants submit that they are restricting their prayer that benefit of Section 304 Part-II of Indian Penal Code is liable to be granted to the appellants in view of the following facts:- A. The appellants have spent more than 11 years in jail. B. As per the admitted case of the prosecution, the offence alleged by the prosecution will not travel beyond Section 304 Part II of Indian Penal Code. 12. B. As per the admitted case of the prosecution, the offence alleged by the prosecution will not travel beyond Section 304 Part II of Indian Penal Code. 12. On the other hand, learned brief holder for the State submits that the offence committed by the appellants would fall within the purview of Section 302 of IPC in view of eye witness account of PW-1, PW-2 and PW-8, read with the postmortem report and dying declaration therefore the appellants have rightly been convicted. 13. Though the learned counsel for the appellants have not challenged the conclusion of learned trial court that the prosecution has not proved his case beyond the reasonable doubt but in spite of that we have gone through the entire prosecution evidence and have found that there is direct eye witness account of PW-1, PW-2 and PW-8, who have proved the incident. PW-2 is an injured eye witness who has named the appellants and assigned the role of firing. The evidence of all the witnesses of fact stand fully corroborated by the medical evidence. 14. Before adverting to the applicability of Section 304 of Indian Penal Code in this case we will like to notice the evidence in this case. PW-1 is the real brother of the deceased and has deposed that his brother Mahesh went to the shop of Radhey Shyam at 11:30 AM while he was returning and reached at the Kharnja, then, Tirkha, Raju, Virendra and Nanh met him and after telling him that you try to become goon and started abusing as well as beating Mahesh. Upon raising alarm by Mahesh, PW-1 Umesh, Rajesh Singh, Dharmendra ran to rescue Mahesh then the accused appellants started beating Mahesh by butt of their pistols and fired from their pistol on Umesh, who suffered pellet injuries. Mahesh was injured from the butt of pistol and after firing when others arrived along with these persons at the spot of occurrence, the accused ran away. In the cross-examination he stated that after hearing the alarm of Mahesh, he reached at the spot of occurrence. He further stated that all the four accused fired at Umesh at once, he then stated that after receiving fire arm injury, Umesh fell down and after that accused did not hit Umesh neither with butt of pistols nor fired again. 15. He further stated that all the four accused fired at Umesh at once, he then stated that after receiving fire arm injury, Umesh fell down and after that accused did not hit Umesh neither with butt of pistols nor fired again. 15. PW-2 is an injured eye witness, he also stated that after abusing the accused persons started hitting him with the butt of pistols, he raised alarm and after hearing of his alarm, his brothers Umesh, Rajesh, Vimlesh and Deepu came then accused fired due to which Umesh got injured. 16. In the cross examination he stated that Umesh did not come close to him and suffered only one shot. He further states that all the four accused fired upon Umesh and cannot tell that from whose shot Umesh got injured. 17. PW-8 Dharmendra Singh who was chance witness and at that time was studying in class-7th also supported the prosecution case and reiterated the same story narrated by PW-1 and 2 and stated that all the four accused first hit Mahesh with the butt of pistol, and upon his alarm when Umesh came to rescue he was shot. 18. In the statement under Section 313 of Cr.P.C., the defence is of denial and false implication. 19. PW-5 Autopsy surgeon in his deposition has proved the homicidal death as a result of fire arm injury and recovered twenty pellets from the body of the deceased, has opined that death was due to shock and hemorrhage as a result of anti-mortem injuries and has proved the Ex. K-5 the postmortem report. 20. Likewise, PW-3 Dr. Tejvir Singh who examined the PW-2 has proved two injuries on the person of Mahesh (PW-2) and prepared his injury report which is Ex. Ka-2 and has proved it. PW-3 opined that two injuries which could have been caused by butt of the pistol on 15.01.2003 at 11:30 AM. 21. In defence the accused Raju Mourya in his statement under Section 313 of Cr.P.C. has stated that on the date of incident a date was fixed in the Court and he has signed at 11 AM. is Ex. Kha-1. Ex. Kha-1 is order dated 15.01.2003. The said order does not prove that accused Raju Mourya was present in the Court at 11:AM because the person who has written it or the presiding officer has not been examined. Ex. is Ex. Kha-1. Ex. Kha-1 is order dated 15.01.2003. The said order does not prove that accused Raju Mourya was present in the Court at 11:AM because the person who has written it or the presiding officer has not been examined. Ex. Kha-2 is an FIR relating to case crime No. 205 of 2000, under Section 307 of IPC lodged by Shyam Lal son of Kewal Mourya against Chandrapal Singh, Prithvipal Singh, Shiv Kumar Singh and Nanh. Ex. Kha-3 also an FIR relating to case crime No. 134 of 1996, under Sections 394, 302 and 201of IPC lodged by Ram Kishor. Ex. Kha-4 is a chargesheet in case crime No. 134 of 1996 under Section 396, 412, 201 of IPC against accused Tirkha in which Chandrapal Singh is prosecution witness. Ex. Kha-5 is order dated 15.01.2003 which shows the signatures of accused Shiv Mangal and Bhagwan Deen but not of Rajesh Mourya. Ex. Kha-6 is the history sheet of Chandrapal Singh addressed to the District Magistrate, Unnao with the recommendation of local Station House Officer in favour of Chandrapal Singh. Ex. Kha-7 is a charge-sheet against the accused Nanh Singh and Tirkha in case crime No. 173 of 2001, under Section 307 of IPC in which Chandrapal Singh is not even the witness of prosecution. 22. The FIRs/charge-sheets in which Chandra Pal Singh is involved are not related in any manner with this case. He has not been examined by the defence to prove his story. Therefore, the plea of false implication sought to be relied on by the accused persons is baseless, and we affirm the finding given by the Learned Additional Sessions Judge in this regard. 23. The offence in this case can be categorized in two stages. First stage is that when the four accused were beating Mahesh with the butt of their 'pistols' by that time PW-1, PW-2 and PW-3 were not present on the spot and they came after the alarm was raised by Mahesh while getting beaten. Second stage is that after raising the alarm by Mahesh, deceased Umesh along with Vimlesh, Rajesh, Sanju and Dharmendra ran to rescue the Mahesh and in this process Umesh received fire arm injury. 24. It is admitted case of the prosecution that accused persons were beating Mahesh by the butt of pistols. Second stage is that after raising the alarm by Mahesh, deceased Umesh along with Vimlesh, Rajesh, Sanju and Dharmendra ran to rescue the Mahesh and in this process Umesh received fire arm injury. 24. It is admitted case of the prosecution that accused persons were beating Mahesh by the butt of pistols. All of a sudden in the second stage upon his alarm when others came to rescue, Umesh received fire arm injury. The fact that the appellants shot fire arm on Umesh is not sufficient to infer the intention to kill, because of the genesis of occurrence and the single assault by the appellants coupled with duration episode for few minutes. The deposition of PW-1, PW-2 and PW-8 unambiguously show that the initial intention of the accused appears more to have been to teach a lesson by venting of ire. All the three eye witnesses have deposed that accused persons were hitting Mahesh with the butt of pistols. Mahesh raised alarm, the others came running to his rescue at this moment the accused persons opened fire at Umesh who was 10 steps away. PW-2 has stated in his deposition that Umesh received one shot, PW-1 has deposed that after receiving fire arm injury the accused persons did not hit Umesh neither by butt nor fired again. PW-2 has also not stated that accused persons after causing one fire arm injury had fired second shot. PW-8 has also supported the version of PW-1 that the accused persons did not fire again and also not hit Umesh with the butt of pistol. Even in the dying declaration dated 15.01.2003 made by the deceased to the I.O., it has been stated that four accused persons were beating Mahesh and after hearing the alarm he along with Rajesh, Vimlesh and Dharmendra ran there to rescue his brother, then gun shots were fired as a result of which he got injured. Therefore, from the evidence on record, it can be safely concluded that the occurrence qua Umesh (deceased) took place in the heat of the moment and the assault was made without premeditation. There is no evidence to show that there was prior intention or prior planning of the appellants to kill the deceased Umesh. There was no time to cool down passion neither was any prior enmity. There is no evidence to show that there was prior intention or prior planning of the appellants to kill the deceased Umesh. There was no time to cool down passion neither was any prior enmity. At this stage, we take note of the judgment of the Hon'ble Apex Court in the case of Manjeet Singh Vs. State of Himachal Pradesh in 2014 5 SCC 697 . Paragraphs 2 and 3 of the judgment refer to the facts and are reproduced as under:- 2. The facts of the prosecution case as stated by Jai Pal (PW.5) are that he was carrying business of taxi in Shimla. On 31st December, 2000 at about 9 p.m. he had gone to Hotel Apsara at Cart Road, Shimla to inquire from Budhi Singh (PW.8), Manager of the Hotel Apsara regarding the booking of his taxi by some passenger staying in the Hotel. Budhi Singh (PW.8) asked Jai Pal (PW.5) to come after some time. Both of them then went together to Hotel Basant for celebrating New Year. They took wine and dinner together and remained in the said Hotel till 12 o’clock. Thereafter, Budhi Singh(PW.8) returned to Hotel Apsara while Jai Pal (PW.5) came towards Cart Road where he met Romi Kapoor (PW.6), Pawan Kumar (PW.7), Deep Chand and Rajnish alias Rintu who inquired about the booking of a room in the Hotel as earlier agreed upon. Jai Pal (PW.5) went to the Hotel Apsara where he did not find Budhi Singh (PW.8), Therefore, he went upstairs in the Hall of the Hotel where he found accused Manjeet Singh along with Balraj and Surender Kumar were taking liquor. Jai Pal (PW.5) inquired from the appellant-accused, Manjeet Singh about the Manager of the Hotel to which the accused was alleged to have retorted that he was not the Chowkidar of the Hotel so as to know and tell about the Manager. Accused-Manjeet Singh was further alleged to have started abusing Jai Pal (PW.5) by proclaiming that he was serving in Punjab Police. The accused was further alleged to have started beating Jai Pal (PW.5) by giving him a fist blow on his mouth. Jai Pal (PW.5) ran outside. He met the above-named Romi Kapoor (PW.6), Deep Chand, Pawan Kumar (PW.7) and Rajnish. He narrated the incident to them. The accused was further alleged to have started beating Jai Pal (PW.5) by giving him a fist blow on his mouth. Jai Pal (PW.5) ran outside. He met the above-named Romi Kapoor (PW.6), Deep Chand, Pawan Kumar (PW.7) and Rajnish. He narrated the incident to them. Romi Kapoor (PW.6), Rajnish alias Rintu and Pawan Kumar (PW.7) went inside the Hall while Jai Pal (PW.5) and one Roshan remained standing at the entrance of the Hotel. Rajnish alias Rintu inquired from the accused-Manjeet Singh as to the cause of his having given beatings to Jai Pal (PW.5). The accused was alleged to have told his companions, Balraj and Surender Kumar to tell Rajnish and his friends about the cause of the beatings to Jai Pal (PW.5). Balraj and Surender Kumar were then alleged to have abetted and instigated the accused by saying “Carbine Ka Kamal Dekhao”. Whereupon accused was alleged to have fired shots from his Carbine which hit Rajnish alias Rintu, Romi Kapoor (PW.6), Jai Pal (PW.5) and Pawan Kumar (PW.7). Rajnish alias Rintu sustained two shots on his chest and he fell down on the ground. The accused and Balraj were alleged to have run away after the gun shots. Jai Pal (PW.5) lifted Rajnish alias Rintu and carried him to I.G.M.C. Hospital, Shimla, where he was declared dead. 3. On the telephonic message of one Pradeep Kumar, Jagdish Ram (PW.25), Station House Officer, Police Station Sadar reached the spot. Surender Kumar, a companion of the accused, was apprehended from the toilet of the Hotel. Since, the injured persons had already been taken to the Hospital, Jagdish Ram (PW.25) went to the Hospital and recorded the statement of Jai Pal (PW.5), on the basis of which a case for the offences under Section 302, 307 and 323 read with Section 34 IPC came to be formally registered vide F.I.R. No.1/2001. On the basis of these facts, following was held- "25. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, Indian Penal Code, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder Under Section 304, Indian Penal Code, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/-and in default of payment of fine, a further imprisonment of six months." 25. In the case of Manjeet Singh (supra), the accused was alleged to have fired several shots from his carbine who hit as many as four persons whereas in this case the accused persons have shot only once, three eye witnesses are not able to depose as to by whose shot the deceased received fire arm injury. It is not the case of the prosecution that the accused persons fired again therefore we are of the opinion that the present appellants stand on much better footing as compared to case of Manjeet Singh (supra) as in this case only once fire arm was shot that too by country made pistol whereas in case of Manjeet Singh (supra) several shots were made by accused. 26. The Hon'ble Supreme Court in "Harendra Nath Mandal Vs. State of Bihar (1993) 2 SCC 435 " has held that before an accused is held guilty or punished under Section 304 of part-I or part-II of IPC, a death must have been caused by the assailant under any of the circumstances mentioned in the five exception to section 300 IPC. The Hon'ble Supreme Court in "Harendra Nath Mandal Vs. State of Bihar (1993) 2 SCC 435 " has held that before an accused is held guilty or punished under Section 304 of part-I or part-II of IPC, a death must have been caused by the assailant under any of the circumstances mentioned in the five exception to section 300 IPC. Considering the evidence available on record we are of the view that the instant case falls under Exception 4 to Section 300 of IPC read with explanation and the same is reproduced as under:- "Exception 4. Culpable homicide is not murder if it is committed without premeditation 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. 27. Since explanation to this Exception 4 makes it immaterial as to which party gave the provocation or the first assault, therefore, we need not go into that question. It is admitted case of the prosecution that initially accused were hitting Mahesh with the butt of the pistol and thereby clearly did not had any intention to cause death. At this time all of a sudden when Umesh appeared along with others to rescue Mahesh, in a spur of the moment without having any time to cool down in the middle of on going fight, gun shot was fired at Umesh. Since the deceased was not present at first stage of the occurrence therefore no premeditation could be attributed to the accused. If they had the intention to cause death they would not have used the butt to hit Mahesh. There is no evidence that second round of fire was made and immediately after firing the first shot, the accused ran away. 28. Accordingly, in view of the admitted case of the prosecution and discussions made herein above, there is nothing on record to suggest or to presume that there was time gap between the first stage and the second stage. There was also no time to cool down the passion of the appellant. Only once shot is alleged to have been fired. Accordingly, in view of the admitted case of the prosecution and discussions made herein above, there is nothing on record to suggest or to presume that there was time gap between the first stage and the second stage. There was also no time to cool down the passion of the appellant. Only once shot is alleged to have been fired. There is also nothing on record to infer that the appellant had any prior enmity with the deceased or had any motive to commit this offence or to make planning for offence after cooling down his passion. In the case of Manjeet Singh (supra) several gun shots were fired from carbine whereas in this case deceased received one shot by 'pistol'. Hence, this case is on a better footing that the case of Manjeet Singh (supra). Therefore, in our concerned view, the appellants are entitled to the benefit of aforementioned case law of Hon'ble Supreme Court Manjeet Singh (supra). 29. We have noticed that there was no premeditation and gun shot injury caused to the deceased was during course of sudden fight at the second stage and the accused persons have not taken any undue advantage and have not acted in cruel or in unusual manner otherwise they could have inflicted second fire arm shot to ensure the death. It will be difficult not to attract Exception 4 of Section 300 of IPC in the present case. Now from the facts emerged out of the evidence it can surely be said that the accused appellants had no intention of causing death. Of course the fact was within their knowledge that this act is likely to cause death or cause such bodily injury as likely to cause death. Since, the intention to cause death is absent although there was knowledge that such bodily injury could cause death. But the nature of weapon used assault made in the chest and abdomen in which that the death was likely to ensue will have to be attributed to the appellants. Hence, the ingredients of Section 300 of I.P.C. have not been proved against the accused and we are of the view that the accused-appellants were guilty of culpable homicide not amounting to murder. Hence, in peculiar facts and circumstances of the present case that the offence will not travel beyond section 304 part-II IPC. 30. Hence, the ingredients of Section 300 of I.P.C. have not been proved against the accused and we are of the view that the accused-appellants were guilty of culpable homicide not amounting to murder. Hence, in peculiar facts and circumstances of the present case that the offence will not travel beyond section 304 part-II IPC. 30. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellants are hereby converted under Section 304 part-II of IPC and the sentence of imprisonment of life is reduced to the period already undergone. Sentences awarded to appellants in default of payments of fine stands confirmed. The appellants shall be released forthwith if are not wanted in any other case. 31. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.