Honble PASAYAT, J.–Appellant faced trial for alleged commission of offence punishable u/Sec. 302 & 307 of the Indian Penal Code, 1960 (for Short `IPC). Learned Additional Sessions Judge, Delhi found him guilty of the aforesaid offences and sentenced him to undergo to imprisonment for life and fine of Rs. 300/-, and for two years imprisonment and a fine of Rs. 200/- respectively for the aforesaid offences. the matter was carried in appeal before the Delhi High Court. By the impugned judgment the High Court held that the case was not one covered by Sec. 302 IPC, but Sec. 304 Part I IPC was attracted. Similarly, instead of Sec. 307 it was held that Sec. 308 IPC was appropriate. Sentence of 10 years and 2 years respectively were awarded.

(2). Prosecution version as unfolded during trial is as follows:

(3). Appellant was attached to Mangat Ram, a Municipal Councillor and Chairman, Works Committee of the municipality as a Personal Security Officer. On 14.6.1989 there was an altercation followed by scuffle between the accused-appellant and one Devender Singh (hereinafter referred to as `the deceased). On the date of occurrence, deceased had parked his three-wheeler scooter opposite the gate of mangat Rams office. He opened lid of the engine. This was objected to by the accused-appellant who asked him to take away the vehicle. The deceased ignored the objection which led to further altercations. Accused-appellant threatened the deceased that he would take the vehicle to the police station. Thereupon, the deceased retorted that he would see as to what the accused-appellant could do. On hearing this accused- appellant boarded to scooter, and asked the deceased to take the scooter to the police station at Adarsh Nagar. The deceased did not take the correct route and tried to proceed in a wrong direction. Accused-appellant asked him to stop and again a scuffle took place. During the course of scuffle, accused- appellant took out his pistol and fired at the deceased. The bullet missed the target and instead hit the thigh of one Vijay Kumar (PW-7) who was standing nearby. The accused-appellant fired again and the bullet hit the deceased and the collapsed. The deceased and Vijay Kumar were taken to Hindu Rao Hospital. The deceased was declared to be dead, but doctor examined Vijay Kumar (PW-7) and he was admitted to the hospital. On the basis of information lodged, investigation was undertaken and charge-sheet was placed. Accused claimed trial. His defence was that besides the deceased three was another person and when he asked them to remove the vehicle for security reasons, the deceased and this companion picked up quarrel with the accused-appellant and dragged him about 20 feet. Thereafter three or for drivers joined the deceased and his companion. They assaulted him and his shirt was torn. They snatched away his pistol, and he grappled with them to recover his pistol. In this process the pistol went off. He told the incident to Mangat Ram (PW-3). The Trial Court held that the case would not fall within the Exceptions 1,2 & 4 of Sec. 300 IPC and it was clearly covered u/Sec. 302.

(4). In appeal, the High Court came to the following conclusions (as noted in Para 18 of the judgment):-

``The conclusions are obvious (a) the appellant had no enmity with the three wheeler scooter driver (b) there was an altercation and (c) it was followed by a scuffle between the two...

(5). Therefore, Exception 1 to 300 IPC was held to be applicable. Accordingly the conviction was altered and so also the sentence. The appellant as noted supra was directed to undergo sentence of 10 years u/Sec. 304 Part I IPC and 2 years sentence u/Sec. 308 IPC with a fine of Rs. 200/- for each court.

(6). Said judgment is impugned in this appeal. In support of the appeal, learned counsel for the accused-appellant submitted that the High Court has not considered the case in its proper perspective. It did not consider the plea of the accused- appellant that this was a case of accident

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