JUDGMENT Onkar Singh, J. - This is an appeal by Jagdish Chandra Tewari who has been convicted and sentenced under Section 302, Indian Penal Code to undergo life imprisonment. 2. The prosecution case is as follows. The occurrence took place in the compound of Vidhayak as No. 4 at Lucknow. There is a Telephone Kothri within the compound of Vidhayak Niwas. Ram Lal Farrash, who is the Chaukidar of Vidhayak Niwas, was near the Telephone Kothri at about 7-00 A.M. on 13-6-1968. The appellant and one Kalika Singh, driver of Raja Payagpur came time and on the Bench Kailash deceased who was a bearer of the Canteen also arrived there and seeing him the appellant sent him to bring some cigarettes. Kailask returned immediately with cigarettes and after handing them to the appellant stood at the back of the Bench on which the Appellant and Kalika Singh driver were sitting. Then Kalika Singh took out a pistol from his pocket and seeing it the appellant took it from him and enquired of Kalika Singh if it was loaded or not. Kalika Singh told him that it was loaded. Then the accused gave the pistol to Kalika Singh and asked him to unload it. Kalika Singh took out the magazine and handed over the pistol to the appellant who pointed it in sport towards Kailash and pressed its trigger but it did not work. The appellant gave it back to Kalika Singh and asked him to set it right. Kalika Singh removed the safety catch and handed it over again to the appellant who then again pointed it in sport towards Kailash saying that he would shoot him and pressed the trigger. The pistol was fired and the bullet hit Kailash in his chest. He fell down and became unconscious. Seeing this the appellant handed over the pistol to Kalika Singh Kailash Singh ran away from there but the appellant and Ram Lal took Kailash to hospital. Kailash, however, died in the way and was declared dead by the doctor in the hospital. 3. A report of this occurrence was lodged by Ram Lal at Police Station Hussainganj at 9-15 A.M. and a case under Section 304-A, I. P. C. was registered against the appellant and Kalika Singh. 4. P. W. 10 Har Swaroop Singh, Yadav was present at the police station when the report was lodged. 3. A report of this occurrence was lodged by Ram Lal at Police Station Hussainganj at 9-15 A.M. and a case under Section 304-A, I. P. C. was registered against the appellant and Kalika Singh. 4. P. W. 10 Har Swaroop Singh, Yadav was present at the police station when the report was lodged. He interrogated Ram Lal and went to the Civil Hospital, Hazratganj. He prepared the inquest report and atter having completed all the formalities sent the dead body to the mortuary for postmortem examination. He went to Police Station Hazratganj where he recorded the statement of the appellant and from there he went to Vidhayak Niwas No. 4. There he interrogated Kedar, Raj Jang Bahadur Rana Payagpur and took in custody the pistol and magazine Exts. 1 and 2. He also interrogated Kalika Singh and arrested him. He prepared a site-plan. After completing the investigation, he submitted a charge-sheet against the appellant only and not against Kalika Singh. 5. He pleaded not guilty and denied the prosecution case. He stated before the committing Magistrate that on hearing the shot he came out of the room and Kalika Singh told him that the pistol had been fired. He advised him to take Kailash to the hospital but he refused to take him. He then took him to the hospital but the police had falsely implicated him. In the trial court he stated that at about 7.00 A.M. he had gone to take tea in the canteen which was served by Kailash deceased. From there he went to take betel and when he was returning towards his room, he met Kalika Singh driver who told him that Kailash had fallen down unconscious and should be taken to hospital. He had advised Kalika Singh to infarm his master and himself took Kailash to the hospital along with Ram Lal Chaukidar. He further stated that after that Raja Payagpur accompanied with some other persons came there and had a alk with the police add thereafter he was arrested. 6. The prosecution examined Ram Lal P.W. 1, Indrajeet Prasad P. W. 2, Navin Chandra Tewari P. W. 3 and Kalika Singh P. W. 7 as eye-witnesses of the occurrence. The rest of the witnesses are more or less of a formal nature. 7. The accused also examined Raghunandan D. W. 1 in defence. 8. 6. The prosecution examined Ram Lal P.W. 1, Indrajeet Prasad P. W. 2, Navin Chandra Tewari P. W. 3 and Kalika Singh P. W. 7 as eye-witnesses of the occurrence. The rest of the witnesses are more or less of a formal nature. 7. The accused also examined Raghunandan D. W. 1 in defence. 8. The learned trial court believed the prosecution case and held that an offence under Section 302, Indian Penal Code was brought home to the appellant. Accordingly, it convicted and sentenced him as mentioned above. 9. The learned counsel for the appellant has made three-fold submissions before us: Firstly that the finding of the learned trial court holding the appellant guilty under Section 302, 1.P.C. is erroneous, secondly that the prosecution has failed to establish that the appellant fired the shot which killed Kailash deceased and lastly the death of the deceased was accidently due to misadventure or misfortune. As regards the first submission, we are of the opinion that no offence under Section 302, I.P.C. has been made out against the appellant. As is clear from the evidence on the record, he had neither the intention nor the knowledge that by his act he would cause the death of the deceased. The learned Sessions Judge has held that the appellant did not have any intention to cause the death of Kailash. He was, however, of the view that it was a dangerous act to handle a pistol without knowing its mechanism and firing from a pistol is imminently dangerous to life, if per change there is a bullet in its chamber. In opinion the learned Sessions Judge was in error in holding the appellant guilty under Section 302, Indian Penal Code. 10. As regards the next submission of the learned counsel for the appellant, we are of the opinion that there is reliable and satisfactory evidence on the record that it was the appellant who fired the shot from the pistol which killed Kailash deceased. The prosecution has examined P. W. 1 Ral Lal who lodged the first information report in this case. He is the Farrash of Vidhayak Niwas. He has supported the prosecution case and has stated that it was the appellant who had fired the shot. The prosecution has examined P. W. 1 Ral Lal who lodged the first information report in this case. He is the Farrash of Vidhayak Niwas. He has supported the prosecution case and has stated that it was the appellant who had fired the shot. No doubt he stated at one place in cross-examination that he did not see who fired the pistol but further in his cross-examination he admitted that the true fact was that the pistol was in the hand of the appellant when the shot hit in file chest of the deceased. Similarly, P. W. 3 Navin Chandra Tewari, who was the office Assistant of the Minister of Finance stated that on hearing the gunshot fire he turned and saw that the deceased was lying on the ground and the appellant was bending and seeing him. He stated that he did not remember whether the pistol was in the hand of Kalika driver or in the hand of the appellant. He was declared hostile and cross-examined by the prosecution. He was confronted with his statement recorded before the committing Magistrate where he had clearly deposed that when he heard the gunshot fire, he turned round and saw Kailash lying on the ground and the appellant holding the pistol in his hand which he afterwards gave to the driver. On being confronted with his statement he stated that he got confused and the fact was that on hearing the gunshot fire he turned round and saw the appellant holding the pistol in his hand and Kailash deceased tying on the ground and the appellant returned the pistol to Kalika driver. It is thus established from the prosecution evidence that it was the appellant who had fired the shot from the pistol hitting the deceased Kailash on his chest as result of which he died. 11. The last submission of the learned counsel for the appellant is that the death of the deceased was accidental and was the result of a mis-adventure. We find that there is sufficient force in this contention. It is proved from the testimony of P. W. 1 Ram Lal and P. W. 3 Navin Chandra Tewari that in the beginning the appellant and Kalika Singh driver were sitting on the Bench. We find that there is sufficient force in this contention. It is proved from the testimony of P. W. 1 Ram Lal and P. W. 3 Navin Chandra Tewari that in the beginning the appellant and Kalika Singh driver were sitting on the Bench. Kalika Singh driver took out the pistol and seeing it the appellant took it from him and enquired if it was loaded Kalika Singh said that it was loaded and the appellant returned it to the driver to unload. Kalika Singh driver took the pistol and taking out the magazine from it again handed it over to the appellant. According to the testimony of P. W. 3 Navin Chandra Tewari, the driver had taken back the pistol and after taking out the magazine had emptied it and then put the magazine back in the pistol. After that the appellant pointed out the pistol towards Kailash deceased and pressed the trigger but it did not work. The appellant then gave hack the pistol to the driver who reined the safety catch and gave it to the appellant. This time again the appellant playfully pointing the pistol towards Kailash saying that he would shoot him pressed the trigger with the result that it fired and hit the deceased on his chest. It is thus clear from the prosecution evidence that Kalika Singh driver had taken out the magazine according to one witness and according to the other he had taken out the magazine and emptied the bullets and then put back the magazine. It is clear from this evidence that the appellant had reason to believe that the pistol was empty because, according to one prosecution witness. the magazine had been taken out and according to the other all the bullets in the magazine had been taken out and then the magazine placed in the pistol. In any event, the appellant had taken the precaution that the driver had removed the magazine or the bullets in the magazine and he was justified in his belief that there was no bullet left inside the pistol. In view of the above evidence, it appears that the death of the deceased by the pistol-shot fired by the appellant was accidental. In view of the above evidence, it appears that the death of the deceased by the pistol-shot fired by the appellant was accidental. The following illustration given in Stephen's Digest of the Criminal Law on page 261 (Ninth edition) supports the above inference: "A takes up a gun, not knowing whether it is loaded or not, points it in sport at B and pulls the trigger. B is shot dead. Such a death is not accidental. If A had reason to believe that the gun was not loaded, the 78 death would have been accidental, although he had not used every possible precaution to ascertain whether the gun was loaded or not." The present is a stronger case. There is evidence on the record that the appellant had taken every possible precaution to ascertain whether the pistol was loaded or not. When he first took the pistol from Kalika Singh driver he enquired from him whether it was loaded or not. When told that it was loaded, he returned it to the driver and specifically asked him to unload it. In his presence the driver opened the pistol, took out the magazine and gave it back to him. The appellant pointing it, in play, and saying that he would shoot him drew the trigger and it went off and the shot hit the deceased. It is apparent from the above facts that the death of Kailash was accidental in nature and was caused as a result of a misadventure or misfortune. We are of the opinion that the provisions of Section 80, Indian Penal Code are invited and the accused cannot be said to have committee' any offence. However foolish and childish might have been the act of the appellant in pointing the pistol towards the deceased and pulling the trigger, it was not an unlawful act because the appellant was under a bonafide and reasonable belief that there was no bullet inside the pistol. In our opinion the offence would not tall under Section 304-A, Indian Penal Code because howsoever one may describe the standard of negligence for criminality under See. In our opinion the offence would not tall under Section 304-A, Indian Penal Code because howsoever one may describe the standard of negligence for criminality under See. 304-A, whether as gross negligence, or culpable negligence or criminal negligence, want of due care and caution in doing the act must be such as to betray a blame-worthy state of mind or a high degree of heedlessness to the consequences and it will be then that the act so done can be said to satisfy the test of criminality involved in Section 304-A. Once the appellant was under a reasonable and bonafide belief that the pistol was not loaded and there was no bullet in it and in the circumstances of the case it was a bonafide and reasonable belief, no blame will attach to the appellant and he cannot be held criminally guilty as he never intended to do any harm to the deceased. We are, therefore, of the opinion that no offence has been committed by the appellant. 12. The appeal is allowed and the conviction and sentence of the appellant are set aside. He is on bail. He need not surrender and his bail bonds are cancelled and sureties discharged.