Judgment

SHINGHAL, J.:- This appeal by special leave is directed against the appellate judgment of the Madhya Pradesh High Court dated October 26, 1971, by which the conviction of respondent Digvijay Singh for an offence under Section 302 I.P.C. has been set aside and he has been acquitted.

2. The respondent used to live with his wife Smt. Tulsa Bai in village Mankapur, where he looked after the cultivation of his cousin Jaswant Singh (P.W. 13) who lived elsewhere and occasionally visited Mankapur to supervise the cultivation. Jaswant Singh came to Mankapur on January 8, 1968, in the evening. He found that his niece Smt. Tulsa Bai, wife of respondent Digvijay Singh, was unwell and was resting in a verandah. She was shifted to her room in the house. Respondent Digvijay Singh was also in the house. He said that he was also not feeling well. A cot was provided for him near the cot of his wife in the same room. Smt. Gomti Bai (P.W. 1), who was serving as maid servant in the house, took tea to the room in which Smt. Tulsa Bai and her husband respondent Digvijay Singh were resting. She found that the door of the room had been closed from inside. She knocked at the door and called twice that it may be opened. When she called a third time, she heard a gun shot. It is alleged that Digvijay Singh opened the door immediately thereafter and ran out. Smt. Gomti Bai (P.W. 1) and Prem Lal (P.W. 2) ran after him and informed Jaswant Singh that the respondent had run away after shooting his wife. Shobha Ram (P.W. 3), village Patel, who lived nearby, came to the place of occurrence on hearing the gun shot and heard Smt. Gomati Bai (P.W, 1) telling Jaswant Singh that the respondent had run away after shooting his wife. Jaswant Singh asked Shobha Ram to go in the direction in which the respondent had gone. He did so. He found the respondent at the house of Bhaiya Lal (P.W. 8) in village Ramkhiriya, which was close by. He tried to bring back the respondent, but he refused. He therefore told Ram Narain (P.W. 7), son of Bhaiya Lal, to see that the respondent did not abscond, and came back to Mankapur. He sent report Ext. P-1 to police station Udaipura, which was at a distance of 10 miles, the same night, at about 10-30 p.m. It was mentioned in the report, inter alia, that Smt. Tulsa Bai had succumbed to the gun shot injury and her dead body was lying on the bed in the room. The respondent, in the meantime, tried to run away from the house of Bhaiya Lal (P.W. 8), but he was brought back and was ultimately taken to Mankapur and kept confined in a room. The police arrived at Mankapur at about 2 a.m., when the respondent was taken out for answering the call of nature. He however managed to escape and jumped into a nearby well. He was taken out and the investigation of the case was commenced on the arrival of the Station House officer. The dead body was found lying on the cot and was sent for post-mortem examination. The post-mortem was performed by Dr. S. L. Sharma (P.W. 14) whose report (Ext. P-11) has been placed on the record. The police also recovered a gun (article C) from the house of the respondent vide memorandum Ext. P-4. It was sent for examination to the ballistic expert whose opinion Ext. P-10 is also on the record. It was a muzzle-loading gun of which the respondent held licence Ext. P-15. The respondent was challaned on completion of the investigation.

3. He did not plead guilty to the charge under Section 302 I.P.C. in the trial Court, and contended that he had been falsely implicated by Jaswant Singh. He admitted that he was looking after Jaswant Singhs cultivation at Mankapur and stated that Jaswant Singh rebuked him on January 8, 1968, and that when he had gone out to answer the call of nature, he heard the gun shot. He returned to his house and saw Jaswant Singh standing in front of his room with a gun in his hand, and it was he who informed the respondent that the gun was fired accidentally. The respondent however admitted that he was k