IMPORTANT POINT
There is a practice in this part of the country to use guns while celebrating marriages in some communities. It is not possible to hold that the gun was carried to the marriage ceremony only to kill someone.

JUDGMENT

S. A. BOBDE, J.

1. The appellant has approached this Court challenging the concurrent finding of the Trial Court and the High Court convicting and sentencing him to rigorous life imprisonment under Section 304 of the Indian Penal Code, 1860 [for short ‘IPC’] and imposing a fine of Rs. 1,000/-, in default, to undergo further imprisonment for one year.

2. According to the prosecution the appellant is guilty of the said offence for having caused the death of one Ramayan Prasad, who was present in the marriage ceremony of one Kaushalya, daughter of Shyam Sunder. The incident took place on 22.05.1998 in the courtyard (aangan) inside the house of Shyam Sunder, father of the bride, where around 30 people were present to attend the ceremony while about 60 people were outside the house having snacks. The appellant was sitting at one side of the courtyard in the verandah on a trunk box. Four persons, namely, Hanuman Prasad, Ram Sewak, Mangal Singh and the appellant –Kunwar Pal, had brought double barrel guns, ostensibly for celebration. Ramayan Prasad prohibited them from firing but they did not listen. Due to negligent firing a cartridge hit the neck of the deceased, who fell down. The deceased was taken to Gadarpur Government Hospital in a Tractor Trolley where a doctor declared him dead. Ram Sewak ran away from the spot leaving behind his double barrel gun. Mangal Singh ran away with his double barrel gun. Hanuman Prasad and the appellant did not run away.

3. A first information report (FIR) was lodged on the same day i.e. on 22.05.1998 by one Kamlesh Kumar nephew of Ramayan Prasad, the deceased. In the FIR the informant alleged that three persons had brought guns and though prohibited they fired their gun. Due to negligent firing a cartridge hit the neck of the Ramayan Prasad, who fell down. The person who fired and the other instigators were caught by the villagers, who beat them. He named the appellant – Kunwar Pal. He further stated that from one barrel of the gun one empty cartridge was found and from the other barrel a live cartridge was found. He further stated that Ram Sewak and Mangal Singh, who were Barati, had fired from their guns and ran away. Ram Sewak left behind his gun at the spot.

4. After conclusion of the investigation, a charge sheet was filed naming the appellant and one Hanuman Prasad under Section 304 read with Section 120-B IPC.

5. The learned trial Judge recorded the evidence and heard the matter and convicted the appellant as aforesaid on the basis of the statements recorded from PW-1, PW-2, PW-4, PW-5 and PW-6. The High Court dismissed the appeal carried by the appellant and confirmed the finding of the learned Trial Judge.

6. Shri Jayant Bhushan, learned senior counsel, appearing for the appellant submitted that the impugned judgment as well as the judgment of the Trial Court is erroneous and illegal. According to the learned counsel no attempt was made by the prosecution to co-relate the fatal shot, which killed Ramayan Prasad with the gun of the appellant. No Ballistic Expert was consulted. According to the learned counsel this was crucial since even according to the prosecution 3 people had been firing from their gun and there was absolutely no motive for the appellant to kill Ramayan Prasad. Assuming without admitting that the appellant was guilty no reasons whatsoever have been recorded by the High Court for coming to the conclusion that the appellant is liable to be convicted and sentenced under Part I of Section 304 of the IPC instead of Part II of that section. Without prejudice it is submitted assuming that the appellant is responsible for causing the death of the deceased it can only be attributed to a rash and negligent act within the meaning of Section 304A of the IPC. On the other hand, learned counsel for the prosecution supported the conviction and sentence. According to the learned counsel it is established that the appellant was carrying a gun and had fired it. There was no reason f