1. The Appellant stands convicted under Section 302 IPC to life imprisonment with fine and default stipulation by the District and Sessions Judge Kishangarhbas dated 21/11/1984.

2. PW-1, Hariram brother of the deceased Jumma lodged a police report Exhibit P/1 on 27/02/1984 formally registered as FIR Exhibit P/2 that the previous night the Appellant had fired causing the death of his brother. The postmortem of the deceased Exhibit P/6 was conducted by PW-4, Dr. Amarnath Gupta affirming pellet injuries from a fire-arm on the head opining that it had been fired from a distance of 15-20 feet.

3. Learned Counsel for the Appellant submitted that if the deceased was atop the hill and the Appellant fired from below, the injuries should have been upwards and not in the reverse direction. It was next submitted that according to the prosecution evidence itself there was commotion that thieves had come when the PW-3, Kishanlal who was holding a torch went out with the deceased in search of the thief at 10:00 pm. According to PW-2, Mawasi and PW-3, Kishanlal it was a dark night. There is no evidence whatsoever that there was any visibility much less even a silhouette of a human being visible. The question of the Appellant having any intention to kill much less knowledge even does not arise. It is patent that the Appellant intended to fire for scaring away the thieves. That the Appellant may have insisted on firing despite the caution by PW-2, Mawasi because PW-3, Kishanlal and the deceased may have been ahead in the darkness may be evidence of callous negligence on his part unmindful of the consequences but by no stretch can it be said that he had intention or knowledge to cause death of Jumma.

4. The statement of PW-3, Kishanlal to depute motive against the Appellant because of an alleged land dispute stands falsified from his own police statement where he gave out a different story that the Appellant was having eyes for the wife of the deceased. The Appellant has been acquitted of the charge under the Arms Act. Even though the police station was only 14 kms. away there has been unreasonable delay in lodging of the FIR after approximately 14 hours.

5. Counsel for the State opposing the appeal submitted that the Appellant was told not to fire as there existed a serious possibility and risk of the pellet hitting PW3, Kishanlal or the deceased who were walking ahead. There may have been sufficient light for identification of a human form even in the darkness. Even though the Appellant may not have any intention to kill, he can surely be attributed knowledge when he fired despite being told not to do so and the reason why he should not fire. Knowledge in the circumstances can be attributed. The act of the Appellant can classify as an offence under Section 326 IPC for voluntary causing injuries by dangerous weapon or means. The delay in lodging of the FIR has been explained on account of the death taken place and the family members attending to the deceased as also that PW-3, has deposed that after having seen the dead-body of his brother he had fainted.

6. We have considered the submissions on behalf of the parties and perused the evidence on record.

7. The submission on behalf of the appellant that if he had fired from below the hill the injuries should have been upwards and not downwards does not appeal to us for the reason that the pellets after bursting would travel in all directions. PW-4, Dr. Amarnath Gupta has also stated in his cross-examination that the pellets have tendency to disburse in different directions.

8. The prosecution case of enmity is held to be unsustainable as PW-3, Kishanlal gave a different story in his police statement that the Appellant had eyes for the wife of the deceased while in court he talked of a dispute with regard to passage. It is considered sufficient material contradiction to hold that in fact no enmity existed.

9. PW-3, Kishanlal is stated to have left home earlier with the deceased Jumma on hearing