KANTA BHATNAGAR, J. - (1.) IN a trial for the offence under section 302 1 P. C. the appellant was convicted for that charge and sentenced to imprisonment for life. Feeling dissatisfied by his conviction and sentence the appellant has preferred this appeal in this Court.
(2.) BRIEFLY stated that facts of the case revealed from the first information report and the evidence adduced by the prosecution witnesses are that the marriage ceremony of the daughter of Bhagirath (P. W. 5) was performed at village-Kheruwala. The bridal procession had come from village-Fajuwala and appellant Kanaram was a member of the bridegroom's party. On March 22, 1974 at 9. 30 A. M. was the ceremony of 'sumathani' (the function of farewell to the bride and the bridal procession), Bhagirath (PW. 5) had employed Sukhbir (P. W. 3) and deceased Nakli and his wife Smt. Premi (P. W. 4) to clean the utensils. At 9. 30 A. M. deceased Nakli and Sukhbir (P. W. 3) were going outside to throw a bucketfull of water used for cleaning the utensils. At that time appellant Kana Ram fired a shot which hit Nakli. Nakli fell on the ground and succumbed to the injuries sustained by him. On hearing the noise Nakli's wife and other people reached there. Kana Ram took to heals along with the pistol. Sukhbir (PW. 3) immediately rushed to the Police Station Sadul-sahar and lodged the report Ex. P/9 before S. H. O. Bhanwar Lal (P. W. 6 ). Meanwhile Budha ram (P. W. 2) and a few others chased the appellant and succeeded in apprehending him. The appellant is said to have damaged the pistol by striking it against a stone. Bhanwar Lal (P. W. 6) S. H. O. went to the site and arrested the accused appellant. He ceased the pistol and the licence in the name of the appellant. The pistol was sealed. Bhanwarlal (P. W. 6) S. H. O. then went to the site of occurrence and saw the dead body of Nakli, He conducted necessary investigation at the site. Dr. Jaswant Singh conducted the autopsy over the dead body of Nakli and opined that the cause of death was pistol injury sustained by him. The pistol, cartridge and the blood stained clothes of Nakli were sent to Forensic Expert and Chemical Examiner. Upon completion of necessary investigation charge sheet against the appellant was filed in the Court of Munsif and Judical Magistrate, Hanuman-garh. The learned Magistrate committed the case to the Court of Additional Sessions Judge, Hanumangarh for trial. The learned trial Judge charge sheeted the appellant u/s. 302 I. P. C. and recorded his plea. The appellant denied the charges and claimed to be tried. Six witnesses were examined from the prosecution side. The appellant in his statement u/s 313 of the Code of Criminal Procedure stated that he had not fired the shot with intention to commit the murder of Nakli rather he along with others were firing the shots in the air at the time of 'sumathani'. That after firing one or two shots he was loading the pistol. At that time the pistol accidentally went off and the bullet hit Nakli. That he felt perplexed and run away towards the bus-stand and was apprehended, He has denied the presence of Sukhbir (P. W. 3) and Smt Prema (P. W. 4) at the site. He also stated that he had no enmity with the deceased. The learned trial Judge relied on the evidence of Sukhbir (P. W. 3) and Smt. Prema (PW. 4) on the point that in the evening previous to the day of occurrence appellant had used abusive language towards Nakli and then at the time of 'sumathani' caused the murder of Nakli by voluntarily shot. The learned trial Judge therefore held the prosecution case established and passed the judgment of conviction and sentenced the appellant as stated earlier. We heard Mr. R. N. Bishnoi, learned counsel for the appellant and Mr. U. C. S. Singhvi, learned Public Prosecutor for the State and carefully perused the record of the case. In this appeal Mr. R. N. Bishnoi, learned counsel for the appellant has confined his arguments to the nature of the offence only. It has been vhement-ly emphasized by Mr. Bishnoi that even if the prosecution case is taken to be true, the case of the appellant does not travel beyond Sec. 304-A I. P. C. The argument advanced is that the appellant had no enmity with the deceased and there is no convincing evidence about any abusing language being used by the appellant to Nakli on the previous evening and therefore the case was of accid-ntal fire which unfortunately led to the death of Nakli. Mr. U. C. S. Singhvi, learned Public Prosecutor controverted the contention on the ground that from the statements of Sukhbir (P. W. 3) and Smt. Prema (P. W. 4) it is evident that because of some unknown quarrel on the previous day, the appellant hatched enmity towards Nakli and on the next day committed his murder.
(3.) SO far as the cause of death is concerned there is no dispute. The appellant has admitted that bullet discharged from his pistol hit Nakli. Cause of death of Nakli being the pistol shot injury of which the appellant was the author, the pertinent question to be determined is as to whether it was a voluntary act of the appellant with an intention to cause the murder of Nakli or the pistol went off accidentally and unfortunately hit the deceased. The learned Public Prosecutor has laid much emphasis on the opinion of the expert that the chances of the pistol going off accidentally were not much. It is relevant to note that the prosecution case is that after the incident the appellant had damaged the pistol by striking it against stone. If that was so, then the pistol seized and sent to the Forensic Expert was not in the same position in which it was at the time of the incident. It is also to be noted that the expert has not totally ruled out the possibility of the pistol going off accidentally. The important point for consideration is whether there was any quarrel between the accused and the deceased so as to lead the latter to take revenge by firing the shot towards the former. The only evidence on this point is that of Sukhbir (P. W. 3) and Smt. Prema (P. W. 4 ). The statement of Sukhbir (P. W. 3) is of peculiar nature. He has denied most of the contents of the first information report and has gone even to that extent that he was not knowing the name of the appellant when he lodged the report in which the name of the appellant appears. According to him the Station House Officer on reaching the site has interrogated the persons assembled there and then recorded the information. ;