Judgement

NATARAJAN, J.:- This appeal special leave is against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 1284 of 1974 confirming the conviction of appellant, Radha Kishan under Section 302 Penal Code and Section 27 of the Indian Arms Act and the sentence of life imprisonment and three years R.I. respectively awarded therefor.

2. Having regard to the evidence in the case and the defence taken by the appellant, the appeal raises a limited question viz. whether the appellant shot deceased Darya intentionally or accidentally.

3. Briefly stated the facts are as below. One Amar Singh, who was also tried with the appellant but acquitted of the charge under S. 302 read with S. 114 Indian Penal Code came from his village on 5-12-73 and took the appellant and Darya for "shikar". Amar Singh was having a licensed gun. On the 5th and 6th of December the "shikar" party could not get any game, and hence they started proceeding to another forest known as Papsar forest on the evening of 7-12-73. While going along a "kacha" road from Ferozepur to Rasulapur they passed the fields of Pala Singh (P.W. 2). Pala Singh and his farm servants saw the appellant and his two companions arguing in loud tones when they went along the "kacha" road . After the party had covered a distance of about 30-40, "karams" the witnesses heard the noise of a gun shot. When they ran to the place to find out what the matter was they saw Darya staggering and falling down and the appellant and Amar Singh trying to run away. On being chased and caught the appellant was found having a gun in his hands and Amar Singh was having a bandolier with cartridges in it. Darya died instantaneously as a result of the gun shot injury.

4. Pala Singh (P.W. 2) went to the police station and gave a report. A case was registered and the police authorities came to the scene and arrested the appellant and Amar Singh and seized the gun and the bandolier. The dead body of Darya was sent to the hospital. The post-mortem examination revealed that Darya had been shot from behind and he had sustained an injury above the scapular angle on the right side of. the back 3 cm in diameter.

5. In the trial of the case the appellant admitted that he went along with Amar Singh and Darya for a "shikar" and that on the evening of 7-12-73 they were going along the kacha road leading to Rasulpur. He then stated that all of them were drunk and that while he was carrying the gun on his shoulders it went off accidentally without his knowledge.

6. The Sessions Judge and the High Court did not accept the version of the appellant that the gun went off accidentally. Taking into consideration the site of the gun shot wound and the conduct of the appellant and Amar Singh in trying to run away from the scene after Darya had been shot, they have held that the appellant must have deliberately shot Darya and hence he should be convicted under S. 302 I.P.C. In so far as Amar Singh is concerned the Sessions Judge gave him the benefit of doubt and acquitted him and there was no appeal against his acquittal to the High Court.

7. Mr. R. C. Kohli, learned counsel for the appellant took us through the relevant portions of the evidence of the witnesses and the judgments of the Sessions Judge and the High Court and initially attempted to canvass the position that Daryas death was purely due to the gun going off accidentally. As the argument did not carry conviction he contended alternately that the Sessions Judge and the High Court should have convicted the appellant either under S. 304 Part II or under S. 304-A I.P.C. Mr. Kohli argued that the attempt of the prosecution to prove motive for the occurrence had failed because the Sessions Judge and the High Court have noticed that Darya had unhesitatingly joined the appellant and Amar Singh for the "shikar", and that for three days they had been going about together on friendly and cordial terms. The learned counsel, therefore, stated that the shooting incide