MUNISHWAR NATH BHANDARI, J.

By this appeal, a challenge is made to the order dated 31st March, 2015 passed by the Additional Session Judge No. 2, Kota in Session Case No. 26/2013.

2. The accused-appellant has been convicted for the offence under Section 302 IPC. He has been sentenced for life imprisonment with fine of Rs. 50,000/- and in case of default in payment of fine, to further undergo six months’ simple imprisonment. Out of fine of Rs. 50,000/-, Rs. 30,000/- is ordered to be given to the dependents of the deceased by invoking Section 357 Cr.P.C.

Brief facts of the case are as under

3. The complainant - Mahendra Singh gave a written report to the police on 16th October, 2010 to the effect that the accused Shambhu Singh came at the residence of the deceased Bhawani Singh and, thereupon, they both went together to the residence of the accused Shambhu Singh. He followed them. The accused Shambhu Singh pointed a licensed gun on Bhawani Singh while he was sitting on a Sofa. One Gopal Singh caught hold of the hand of the deceased. The accused opened fire where Bhawani Singh died.

4. On the basis of written report, FIR No. 55/2010 was registered for the offence under Section 302 IPC. After the investigation, charge sheet was filed for the said offence. The trial Court thereafter framed charges for the offence under Section 302 IPC. The charges were explained to the accused and when it was denied, trial commenced. The prosecution produced twenty two witnesses apart from thirty six documents to prove their case. The statement of accused Shambhu Singh was recorded under Section 313 Cr.P.C. In defence, the accused examined himself apart from one witness and produced ten documents. After marshalling the evidence, produced by both the parties, the trial Court convicted the accused-appellant for the offence under Section 302 IPC and sentenced him, as described earlier.

Arguments of learned counsel for the accused-appellant :—

5. Learned counsel for the accused-appellant submits that the FIR was lodged with an afterthought and therein, the complainant planted himself to become an eye-witness to the occurrence. The presence of the complainant at the place of occurrence is doubtful and otherwise, description of incident has been given by the accused in his defence but ignored by the trial Court.

6. It is also stated that the incident took place at around 12.45 AM on 16th October, 2010, which was otherwise the night of 15th and 16th October, 2010. The FIR was lodged with delay and, therefore only, it was sent to the Court on 18th October, 2010, though, time of the FIR has been shown to be at 2.00 AM of 16th October, 2010. The trial Court ignored the aforesaid aspect also, though, after registration of FIR, it should have been sent to the Court immediately.

7. Coming to the facts of the case, it is stated that the deceased demanded liquor from the accused. Since it was at the odd hours of 12.00 in the night, the accused refused to arrange for the liquor. The deceased followed him and entered into the house of the accused. He took the gun to open fire on the accused and at that moment, the accused turned the gun towards the deceased and in that event, trigger was pulled by the deceased, thereby, he sustained firearm injury on left side of the head. The injury mark was going upwards and it can happen when the incident takes place, as described by the accused in his defence. The aforesaid aspect has also been ignored by the trial Court while convicting the accused for the offence under Section 302 IPC.

8. The trial Court even ignored the medical report and statements of the doctors. It is not only to prove that the deceased was under the influence of liquor but injury mark was going upwards and it cannot happen in a case, as described by the complainant. The distance of fire also supports the defence taken by the accused, thereby, he should be acquitted from the offence.

9. Learned counsel for the accused-appellant has made a reference of the