BANWARI LAL SHARMA,J. - (1.) This appeal has been filed against the order dated 20th May, 2013 passed by the Additional Sessions Judge, Dholpur in Session Case No.1/12. The trial Court convicted the accused for the offence under Sections 302 and 307 IPC and sentenced as under : "U/s 302 IPC - Life Imprisonment and a fine of Rs.5000/-, in default of payment of fine further 3 months imprisonment. U/s 307 IPC - 5 years R.I. and a fine of Rs.3000/-, in default of payment of fine further 2 months imprisonment."?
(2.) It is a case where on a "Parcha Bayan"? (Exhibit P - 7) of the complainant Pushpa, an FIR was registered by the Police Station Baadi, Dholpur on 15th April, 2011. In the "Parcha Bayan"?, it was stated that there exists a liquor shop in Hathoi, near the Panchayat. It was run by the deceased Shakti Singh. The accused Brajraj Singh @ Kalli asked the deceased Shakti Singh at around 11.00 on 15th April, 2011 to remove the liquor shop. The deceased Shakti Singh refused to remove the liquor shop. On the aforesaid, the accused Brajraj Singh @ Kalli went to the roof of his house and opened fire on Shakti Singh. The fire caused injuries on chest as well as hand of the deceased. The complainant Pushpa immediately reached to the place of occurrence. She was also subjected to firearm injury. The pellets passed through her left hand. In the occurrence, Shakti Singh died. After the occurrence, many persons reached to the place. In the meantime, the police also reached. After registration of the FIR, investigation was caused by the police and finding evidence, charge sheet was filed against the accused for the offence under Sections 302, 307 IPC and Section 3/25 of the Arms Act, 1959 (for short "the Act of 1959"?). The case was then committed to the Court of Session, as it was exclusively triable by it. The trial Court thereupon heard the case for framing of the charges and, thereupon, framed it for the offence under Sections 302, 307 IPC and Section 3/25 of the Act of 1959. The charges were explained to the accused and when they were denied, trial commenced. In the trial, the prosecution produced seventeen witnesses apart from twenty documents to prove its case. The statement of the accused was recorded under Section 313 Cr.P.C. He produced eighteen documents in defence. After marshalling the evidence, the trial Court convicted the accused for the offence under Sections 302 and 307 IPC while acquitting him for the offence under Section 3/25 of the Act of 1959.
(3.) Learned counsel for the appellant submits that before the occurrence, as described by the complainant Pushpa in her "Parcha Bayan"?, the complainant party came and gave beating to the accused party. Many members of the accused party received injuries, which were even grievous in nature, as is coming out from the injury report produced in defence. The fire was out of self-defence. It has been ignored by the trial Court while convicting the appellant for the offence under Sections 302 and 307 IPC. It is further stated that from the postmortem report as well as the statement of PW - 14 Dr.Rajesh Mittal, the firearm injuries to the deceased were not out of the gun said to have been used by the appellant. The recovery of the arm at the instance of the appellant is twelve bore gun. As per the postmortem report and the statement of PW - 14 Dr. Rajesh Mittal, pellet went through the body, thus impression of two injuries exist out of one shot. The second injury is out of exit of pellet. The aforesaid is not possible out of twelve bore gun. Accordingly, the prosecution failed to prove use of twelve bore gun by the appellant.;