PRASAD, J. - (1.) ACCUSED appellant had filed this appeal against the judgment of learned Additional District & Sessions Judge (Fast Track), Sirohi in Sessions Case No. 10/2001 (11/2001) dated 16. 7. 2002.
(2.) BY the judgment impugned, the learned trial Court has convicted the accused appellant under Section 302 IPC and sentenced him to life and has also sentenced to 1,000/- rupees fine. The accused has also been convicted under Section 5 (a), read with Section 27 of the Arms Act and has been awarded three years rigorous imprisonment, with a fine of Rs. 500/ -. The prosecution was initiated on the basis of a First Information Report lodged by complainant Rawat Ram, who lodged a written report before the SHO Police Station, Barloot on 26. 1. 2001 that at about 3. 00 P. M. his brother Lalaram, his son Dhaniya, aged about 10 years and Pekkaram had gone towards the forest of Senvura for fetching camel fodder. In the evening at about 7. 00 PM, Motilal came to him and informed that Velaram has informed him that Lalaram has been injured. He proceeded along with Motilal to meet Velaram. Velaram informed him that Lalaram, Pekkaram, he Velaram and Nimba Ram and Dhanna Ram went to the forest of Senvura. Nimba Ram had his gun with him. At about 5. 30 PM, Nimba Ram shot at Lalaram. Lalaram sustained an injury on his head. With this information the First Information Report was lodged and investigation started. After completion of the investigation, police filed chargesheet. The matter ultimately came to the trial Court, where at the trial 19 witnesses were examined. Accused has not produced any defence but in his statement under Section 313 Cr. P. C. He has stated as under: Cunwd esjh ugha Fkh igys ls gh avxkm+h esa Fkh mlus Cunwd [khph rks Cunwd py xbz xksyh ml ij yx xbz] esaus dksbz vijk/k ugha fd;k gs bl ?kvuk dh [kcj fnukad 28-1-2001 dks v[kckj jkt- if=dk esa Nih Fkh tks v[kckj ns[kdj dg jgk gwaa** The learned counsel appearing for the accused appellants submitted that the fact of the occurrence is not denied. However, the making part of the offence under Section 302, as has been held by the trial Court, is not a correct proposition of law. The only witness of the incident is PW. 15 Dhannaram. All other witnesses have only stated that the accused and the deceased had gone together to the forest. Before the deceased went to the forest, he along with his companions first went to the place of accused. There all of them had tea and then they proceeded towards the forest. While they reached in he forest, except accused, the deceased and Dhanna ram, all others had gone in the forest and at the time of incident there were only three persons in the cart. If the statement of PW. 15 Dhannaram is taken into consideration then he states that while every body else had gone to the field they started back towards their house. While they proceeded a little Nimba Ram fired at his father and his father fell down. In his cross examination he states that his face was towards the front side. The statement of this witness is not sufficient enough to indicate as to how the occurrence has taken place. The learned counsel for the appellant has further stressed that at the time of the incident this witness was only of 10 years, as has been stated in the First Information Report. However, in the court he states that he was of 12 years of age. He has not been administered oath, which the trial Court has concluded, because he does not understand the implications of oath. He is a child witness. The law regarding child witnesses is that they live in the make believe world. Witnesses were prone to tutoring and those who live in the make believe world cannot be considered to be witnesses who can be made the witnesses of conviction in serious cases.
(3.) IN the instant case it was the admitted fact that the accused was taken by the party of the deceased along with them. There is nothing on the record to show that there were any previous enmity in between the parties. This also is not born out from the record that there was any immediate cause for any dispute or fight in between the deceased and the accused. Though motive is not always specifically required to be stated but then absence of any immediate cause or previous reason creates anxiety in a case like the one in question. This is a proposition which speaks very loud. The absence of motive in its silence is more pronounced than the words, and in this background learned counsel submits that it was at best a case of accident. Prosecution has not made out a case of intentional shooting. Because for a shooting to take place the shooter is required to have a reason to shoot. IN the instant case no such reason is coming out. There is no previous bad blood in between the parties. Before the parties started their journey to the forest they had most amicable relations so much so that the accused served tea to all the occupants of the cart. The accused has stated in his statement under Section 313 Cr. P. C. that when the deceased snatched the gun from the cart then he got hit. May be that this statement is also not giving a correct description of the incident, but then in the absence of lack of motive and in the circumstances indicating that there was no immediate reason for the accused to have shot at the deceased, the court has to apply its mind as to what could be the reason. The only aid is, PW. 15 Dhannaram, a child witness of 10-12 years of age, who admits in his cross-examination that he was only looking forward. He was also thus, not in a position to see as to how the fire has taken place. In the aforesaid background, it cannot be said that it was a case of intentional fire and therefore, the findings as has been held out are not correct. The learned counsel for the accused submitted that making out of a lesser offence under Section 304 II would be a correct proposition. ;