S.K. Chawla, J. -- 1. This judgment shall also govern the disposal of Criminal Appeal No. 235/79. .

2. On 12.6.1978, at about 10.00 A.M., accused/appellant Hakim Singh, aged about 37 years, a retired official from the Indian Air Force, at his house in village Kachongara, district Bhind (M.P.), shot a gun at his own father Patiram Singh alias Sadhu, causing gun-shot injury to his right thigh. Patiram Singh had become a recluse and therefore was also called by the name Sadhu. He died on way to Bhind hospital. The accused was tried under section 302 I.P.C. on the charge of committing murder of his father. The learned Sessions Judge acquitted him of that offence but convicted him of the offence under section 304 (Part I) I.P.C. and sentenced him to R.I. for 5 years and fine Rs. 2,500/-, and in default of payment of fine, to further R.I. for 5 months. It was also directed that out of the fine, if recovered, Rs. 1,500/- shall be paid to Smt. Janki Devi (P.W. 2), widow of the deceased and also the mother of the accused. This is appeal by the accused against the said conviction and sentence. The State also felt aggrieved by the acquittal of the accused of the offence under section 302 I.P.C. The other appeal (Cr. A. No. 235/79) is by the State.

3. Some of the facts were not in controversy. Accused Hakim Singh had taken his retirement from the Indian Air Force and had come to settle in his village some two years prior to the present incident. A partition had been effected between him and his father Patiram Singh alias Sadhu by village Panchas, even while he was in service. Their house consisted mainly of two adjacent rooms. One of the rooms was in possession of the accused, who lived there with his wife Aruna Devi (D.W. 2). The other room was in the possession of the deceased, who lived with his wife Smt. Janki Devi (P.W. 2).

4. The incident on the date in question took place in the wake of exchange of hot words between the accused and the deceased. The incident culminated not only in the infliction of gun-shot injury in the right thigh of the deceased by the accused who shot a gun at the deceased, but also in sufferance of injuries by the accused himself. It may be proper to notice here the injuries received by both. The deceased on his right thigh had four wounds of entrance varying in sizes from 3 tCl 4 c.ms. coupled with 3 exit wounds at the rightside of the gluteal region vide post-mortem report Ex. P-1. There was fracture of the right femoral bone. The femoral artery was severed with a big haematoma. On the evidence of Dr. H.K. Sharma (P.W. 1), all the four wounds could be caused by one gun-shot and the death was due to shock and haemorrahage. Accused Hakim Singh was also got medically examined by the police on the very date of the incident. On the evidence of Dr. S.L. Sharma (P.W. 1) the accused had the following 9 injuries vide injury report, Ex. P-18:

(1) Lacerated wound 5 Cm x 112 Cm on the occipital region

(2) Lacerated wound 4 Cm x 1/2 Cm on the frontal region

(3) Abrasion 3 Cm x 1 Cm on the chest

(4) Abrasion 1/2 Cm x 113 Cm on lower lip

(5) Contusion 6 Cm x 2 Cm on the right thigh

(6) Contusion 6 Cm x 4 Cm also on the right thigh

(7) Contusion 3 Cm x 1 1/2 Cm on the right side of back

(8) Contusion 5 Cm x 2 Cm on the scapular region

(9) Contusion 2 Cm x 1 Cm on the left side chest.

5. It may further be noticed that while the F.I.R. of the incident, Ex. P-3, was lodged by Mohar Singh Chowkidar (P.W. 6) on hearsay basis upon information given to him by the deceased, while the latter was being taken in a bullock-cart to the hospital saying that his son Hakim Singh had shot him with a gun and caused thigh injury, a counter-report Ex. P-13was lodged by the accused himself, which was not hearsay. Both reports were recorded within a short time of each other on the date of the incident. The F.I.R. was recorded at 1.00 p.m., while the counter report at 1.15 p.m. It may also be mentioned that the police put up prosecution in bot