1. - Learned Additional Sessions Judge (Fast Track), Pali by judgment dated 18.10.2003 convicted the accused appellant for the offences punishable under Section 302 Indian Penal Code and also for Sections 25 and 27 of the Indian Arms Act. The accused appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 2000/- for the offence punishable under Section 302 IPC, further to undergo six months rigorous imprisonment in default of payment of fine; to undergo two years rigorous imprisonment with a fine of Rs. 1000/-, further to undergo one month's rigorous imprisonment in default of payment of fine for the offence punishable under Section 25 of the Arms Act and to undergo three years rigorous imprisonment with a fine of Rs. 1000/-, further to undergo one month's rigorous imprisonment in default of payment of fine for the offence punishable under Section 25 of the Indian Arms Act.

2. Briefly stated, facts of the case are that one Nasir Khan son of Raju Khan reported to Shri Bhanwarlal, Sub Inspector, Police Station Sadar, Pali at Bangad Hospital, Pali, that Sabir Khan was keeping enmity with his son Shahjad Khan, as few days earlier he supported Pappu Khan with whom Sabir was quarreling. As per the report submitted by Nasir Khan, on 17.10.2002 at about 06:15 AM Shahjad Khan was going for natural routine and at that time Sabir Khan, Ummed Khan and Khime Khan, all sons of Hussain Khan were standing close to road near Bherunath factory. Sabir Khan was carrying a loaded gun wherefrom he fired, consequent to which one pellet hit to Shahjad on his hand and another hit just below to arm-pit. Shahjad Khan died at the spot. The incident was seen by Peeru Khan son of Bhure Khan, resident of Shero Ki Dhani.

3. On basis of the information aforesaid, a case was lodged, regular investigation was made, charge sheet was filed against accused appellant Sabir Khan, case was committed to the court of Sessions and the charges for commission of offences punishable under Section 302 IPC and 25 and 27 of the Indian Arms Act were framed. The accused denied the charges, therefore, regular trial was conducted.

4. The prosecution supported its case by producing 25 witnesses (PW-1 to PW-25) out of whom PW- 1 Peeru Khan was said to be an eye witness of the incident. The prosecution also produced 65 documents and relied upon the contents of the same. After recording the evidence of the prosecution witnesses, an opportunity was given to the accused to explain the circumstances appearing against him in the evidence wherein the appellant denied the allegations and stated that he was innocent and was falsely implicated in the case. In support of the defence no witness was examined, however, one document Ex.D/1 was produced.

5. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court reached at the conclusion that homicidal death of deceased Shahjad is proved as he died because of a gun shot injury. The trial court held the accused guilty for an offence punishable under Section 302 IPC and also under Sections 25 and 27 of the Indian Arms Act. Accordingly, he was convicted and sentenced as stated above.

6. In appeal, though various contentions are raised, however, essentially emphasis is given to the argument that the offence which has been committed by Shahjad is not murder punishable under Section 302 IPC but an offence falling under exception IV of Section 300 punishable under part-III of Section 304 IPC, as the offence is culpable homicide not amounting to murder. It is asserted by counsel for the appellant that one gun shot was fired and immediately thereafter accused fled away without taking any undue advantage of the circumstances. The argument is supported by various judgments including Daya Nand v. State of Haryana, reported in AIR 2008 SC 1823 ; Hanumana Ram v. State of Rajasthan, reported in 2010(1) CJ(Cr.)(Raj.) 69 ; and Daud Khan v. State, reported in 2009(1) CJ (Cr.)Raj.) 449 .

7. We have consi