- (1.) The Appellant stands convicted under Section 302 I.P.C. to life imprisonment with fine and default stipulation by the District and Sessions Judge Kishangarhbas dated 21/11/1984.
(2.) PW-1, Hariram brother of the deceased Jumma lodged a police report Exhibit P/1 on 27/02/1984 formally registered as FIR Exhibit P/2 that the previous night the Appellant had fired causing the death of his brother. The postmortem of the deceased Exhibit P/6 was conducted by PW-4, Dr. Amarnath Gupta affirming pellet injuries from a fire-arm on the head opining that it had been fired from a distance of 15-20 feet.
(3.) Learned Counsel for the Appellant submitted that if the deceased was atop the hill and the Appellant fired from below, the injuries should have been upwards and not in the reverse direction. It was next submitted that according to the prosecution evidence itself there was commotion that thieves had come when the PW-3, Kishanlal who was holding a torch went out with the deceased in search of the thief at 10:00 pm. According to PW-2, Mawasi and PW-3, Kishanlal it was a dark night. There is no evidence whatsoever that there was any visibility much less even a silhouette of a human being visible. The question of the Appellant having any intention to kill much less knowledge even does not arise. It is patent that the Appellant intended to fire for scaring away the thieves. That the Appellant may have insisted on firing despite the caution by PW-2, Mawasi because PW-3, Kishanlal and the deceased may have been ahead in the darkness may be evidence of callous negligence on his part unmindful of the consequences but by no stretch can it be said that he had intention or knowledge to cause death of Jumma.;