Wanchoo, C. J. - (1.) THIS is an appeal by Shivnath Singh against his conviction under sec. 302 I. P. C. by the Sessions Judge of Balotra.
(2.) THE case relates to an incident which took place on the 1st of April, 1952, at about 1 P. M. in village Malgarh. THE prosecution story is that the accused Shivnath Singh used to visit the house of Kana Purohit in Malgarh Kana Purohit was not living in the village those days, but his, wife was. Mohabbat deceased is said to have remonstrated with the accused for these visits in the absence of Kana, and this is said to have led to enmity between the two. THE prosecution story further is that on the 1st of April, 1952, Mohabbat had come to village Malgarh, and was standing in the rasta under a neem tree. THE accused passed that way, and though there is no direct evidence on the point, the prosecution suggests that immediately on seeing the deceased, the accused shot at him with the gun which he was carrying because of Mohabbat's remonstrances in connection with Kana's wife. THEreafter, the accused ran away with the gun and remained absconding for about four months when he was arrested somewhere in the jungle. THE gun was also recovered from his possession. The accused admits that Mohabbat deceased met his death from a shot fired from his gun. He, however, says that it was an accident, and his version is that he was passing that way when Mohabbat, who was standing under a neem tree, called him. He went to Mohabbat who asked him to pay back the sum of Rs. 20/- which the accused owed to him The accused told Mohahbbat that he had no money with him at that time and that he would return after a few days and pay the amount. Mohabbat, however, insisted that the money should be paid than and there. The accused again told Mohabbat that he should not quarrel like that, and then started away with his gun on his shoulder. When he had gone a few paces Mohabbat caught hold of the barral of the gun from behind. The accused cought hold of the but, and the two began dragging the gun between them. In this struggle the gun struck the neem tree and thereafter went off by accident. The result was that Mohabbat was hit on the chest. This incident was seen by Peeru who was outside the house of Haria Dholi. The accused then admits to have run away. The only question, therefore, for decision in this case is if Mohabbat met his death by accident, or was deliberately shot by the accused, because of the alleged remonstrances by Mohabbat in connection with Kana's wife. There is no evidence on behalf of the prosecution to prove that the accused actually shot at Mohabbat in cold blood. The only prosecution witness on the point is Kerla. But his story is that he was going away when he heard a shot. When he turned round, he saw Mohabbat falling down; and the accused running away. This statement of Keria does not conflict with the story given by the accused, for the accused also says that after Mohabbat had been hit, he immediately ran away with the gun. Other witnesses also arrived on the scene later on, and saw Mohahbat lying seriously injured, and the accused running away. In the first place, even assuming that the story of Mohabbat's remonstrances with the accused about Kana's wife are correct we do not quite understand how the accused could have decided commit this murder in broad day-light in abadi of the village where he could be seen by every body, unless his intention was that he should thereafter be hanged. If this was a pre-planned murder, we should have thought that he would have taken care to commit it at a time when, and at a place where, his act could not have been seen by anybody else as far as possible. We are, therefore, not impressed by the prosecution story that the accused was intending to commit murder, and shot at Mohabbat with that object. On the other hand, the story, that the accused his given, is not an impossible story. The evidence, that is available, does not in any way show that that story is false in any particular. The accused says that he owed some money to Mohabbat. We have the evidence of some prosecution witnesses to the effect that the accused was indebted to Mohabbat in the sum of a few rupees. It is, therefore, not improbable that Mohabbat might have called the accused who happened to be passing, and made a demand for the return of the money. It is also not improbable that the accused would not be carrying money when he was going out for shikar, and his asking Mohabbat to wait for a few days appears quite reasonable. Mohabbat, however, was insisting, and we can understand a creditor being insistent. Then the accused says that when he was leaving, Mohabbat caught hold of the barrel of the gun from behind. This also can be easily understood, for Mohabbat was insisting that the money should be paid then and there, and might have decided to snatch the gun as a sort of security for the money due. Naturally the accused would resist his gun being taken away, and his further story that there was dragging of the gun between the two, and the gun then accidentally went off, does not appear to us to be improbable. The medical evidence, which has been produced, is also not in conflict with this story. It stands to reason that as soon as the deceased caught hold of the barrel of the gun from behind, the accused would turn round, and the two would be face to face, and then the dragging of the gun between the two would begin. We find the entry wound on the right side of the chest of the deceased. This is in accordance with the position of the two persons one facing the other. We also find that the skin round the entry wounds was scorched. This again is in conformity with the story of the accused that the shot was fired from a near distance. We further find two bruises one 16"x 8" on the chest, and the other 6"x5" on the left upper arm of the deceased. This also suggests that there was some struggle between the two. Therefore, so far as this evidence is concerned, it is not inconsistent with the story put forward by the accused We have already pointed out that the other evidence for the prosecution is also not inconsistent with the story of the accused, for all that the prosecution shows is that a shot was heard, and Mohabbat was seen injured, and the accused was seen running away. We may also refer to the evidence of Peeru D. W. 1. This man was admittedly there, for Keria P. W. 2 has stated that Peeru was sitting on the chabutri at the door of Haria Dholi when the incident took place. The plan Ex. P. 8 shows that if a person was sitting at the door of Haria Dholi, he was bound to see what was happening under the neem tree, and therefore this witness Peeru must have been every thing. He has supported the version of the accused. Nothing has been brought out in the cross-examination of this witness, which would, in any way, lead us to doubt his testimony. He does not belong to this village, and is a pinjara by caste, and there is nothing to show that he had any particular friendship with the accused. As such, we do not see why, if what he says is not true, he should try to support the accused by giving a false version. The only witness, therefore, who could have seen the actual incident, support the version of the accused. On the whole, therefore, on the evidence in this case, it seems to us that the death of Mohabbat was, in all probability due to an accident brought on by Mohabbat's action in trying to snatch' a loaded gun even though he was warned that it was loaded. It was contended on behalf of the state that the conduct of the accused in running away from the scene and in absconding for a period of four months, suggests a guilty mind, and that if Mohabbat's death was due to an accident, there was no reason why the accused should have run away. We agree that a properly educated man realizing the niceties of the law would probably not run away; but it is very difficult to get into the mentality of the people like the accused, and he might have thought that the best course, under the circumstances, was to abscond. In any way, this conduct of the accused may raise some suspicion against him,but it cannot prove that the accused deliberately shot at the deceased. All the evidence, that we have discussed, is in consonances with the story put forward by the accused. That story is not improbable in itself. The only man, who could have seen the incident, namely, Peeru, D. W. , 1, supports that story. Under these circumstances, we are not prepared to held that the prosecution case is proved On the other hand, it is more likely that the death was due to an accident. We, therefore, allowed the appeal,set aside the order of the court below and acquit the accused. He will be released forthwith, if not requited in any other connection. . ;