- (1.) THIS appeal is directed against the judgment dt. 13-12-1982 passed by the Sessions Judge, Jhalawar, whereby, the accused- appellant has been convicted U/s. 307 IPC and he has been sentenced to one and half years imprisonment and a fine of Rs. 1,000/ -.
(2.) THE brief facts giving rise to this appeal are that on 13. 09. 1981 at about 4 p. m. Shri Jaswant S/o Shri Lal resident of village Badgaon went to the Police Station Manoharthana alongwith his brother Shri Bansi Lal and lodged a report mentioning therein that since last Friday he was getting the foundation of his house dug when he came out of the house on 13-9-81 at 9. 00 a. m. he found the appellant standing nearby the foundation. At that time the appellant was armed with a gun. When the complainant party came out of the house and reached at the seen of the occurrence the appellant fired the gun which did not hit to anybody only the side of complainant was injured. THE learned trial Court found the appellant guilty for the said offence merely on the ground that he fired the gun with an intention of committing murder. On the basis of the said report a case was registered at the Police Station and after investigation a challan was filed against the appellant. As many as 12 witnesses have been examined by the prosecution. THE learned trial Court after placing reliance on the statement of the prosecution witnesses found the appellant guilty and passed the aforesaid sentence. Heard learned counsel for the parties and perused the entire record. Counsel for the appellant submits that as per the contents of the site-plan Ex. P. 2 the distance in between the injured and the assailant was about 4'. Even after that none of the person from the complainant party has sustained any injury. This shows that the gun was not fired with the intention to commit murder. He further submits that as per the facts mentioned in the site-plan the pellets hit the wall of the informant but no pellets were found on the site and no sign of blackenning was also found on the wall which was a kaccha wall. He further submits that the witnesses of the prosecution were interested and enimical to the appellant. It has been admitted by the learned counsel for appellant and the learned P. P. that most of the witnesses are near relatives of the informant and that no pellets was found at the seen of incident. The gun fired was a muzzled loaded gun. It is thus clear that after fire there should be blackenning on the wall or pellets could be found at the place of incident or on the wall. But no such circumstance is available at the place of incident. So in view of the propositions of law laid down in the case of Hukumat Rai Vs. State of Raj. (1), no inference of committing the offence of Sec. 307 IPC can be inferred against the person firing the gun. The facts of the present case are similar to the case referred above. The gun was recovered and the same was sent to F. S. L. but the report of F. S. L. is not available on the record. In the absence of such a report it cannot be said that the gun recovered was used or not. If the prosecution could have place the F. S. L. report then there would have been good circumstances for using the same within the relevant time against the a'ppellant. In view of the aforesaid discussions it is thus clear that most of the witnesses produced by the prosecution are interested and they are enimical with the accused-appellant. Further that no pellets were found at the place of incident and no sign of blackenning was found on the wall where the gun was hit and that none of the person from the complainant party sustained any gun shot injury though the distance between the accused and the complainant party was only 4'. This is a sufficient circumstance to show that the appellant never intended to commit murder. For the reasons given above and while following the principle laid down in the case of Hukumat Rai Vs. State of Raj. I am of the opinion that the prosecution completely failed to prove the guilty against the accused-appellant. Consequently, this appeal is allowed and the judgment dt. 13- 12-82 passed by the Sessions Judge, Jhalawar is set aside. The appellant is acquitted from the offence levelled against him. He is on bail. His bail-bonds are cancelled. He need not surrender. . ;