JUDGMENT 1. - This criminal appeal has been preferred against the judgment dated 29th November, 1983, passed by the Sessions Judge, Bundi, whereby, he convicted accused-appellant Narendra Singh of offences under sections 302 & 307, IPC; and under section 27 of the Indian Arms Act; and accused-appellant Kulwant Singh under section 302/114, IPC. He passed the following sentences against each of the accused-appellant : Name of Accused Offence u/s. Sentences Narendra Singh 302, IPC Imprisonment for life ,, 307, IPC 7 years' RI and a fine of Rs. 1,000/; and in default of payment of fine to undergo 6 months SI. ,, 27, Arms Act 2 months SI and a fine of Rs. 500/; in default of payment of fine to 15 days SI Kulwant Singh 302/114, IPC Imprisonment for life. All the sentences passed against the accused-appellants by the learned Sessions Judge, were, however, ordered to run concurrently. 2. Succinctly narrated the facts of the case giving rise to this appeal are that on 28th May, 1982, Kashmir Singh, Balveer Singh and Nirmal Singh were going on a tractor trolly for fetching manure. Balveer Singh was driving the tractor. Nirmal Singh was sitting by his side, and Kashmir Singh was sitting in the trolly. They had come about 2-3 furlongs from Village-Bhiyan. Then they saw accused Narendra Singh driving a tractor coming from the opposite direction. In the trolly of that tractor, accused Kulwant Singh was sitting. The trolly of the tractor of the accused was full of grass. The road along which both the tractors were to cross, each other was 7'-8' in width. The trolly of the tractor of the accused had a channel to provide extra load of grass. When both the tractors came near each other, the road. which was only 7'-8' in width, could not accommodate both the tractors with the trollies. While they were crossing each other, the channel of the trolly of the tractor of the accused struck against the umbrella which was fixed on the tractor of the accused. On account of this collission, the umbrella of the tractor of the accused fell down on the ground. Both the tractors then stopped there, Kashmir Singh alighted from the tractor and came towards accused Narendra Singh who also alighted from his tractor. On account of this collission, the umbrella of the tractor of the accused fell down on the ground. Both the tractors then stopped there, Kashmir Singh alighted from the tractor and came towards accused Narendra Singh who also alighted from his tractor. It is stated by the learned counsel for the accused-appellants that accused Narendra Singh was having a loaded, 12-bore gun hanging on his tractor. Balveer Singh (deceased) took that gun. Accused Narendra Singh tried to snatch away the gun from his hand. Both Narendra Singh accused and Balveer Singh (deceased) were standing at a distance of about 4 from each other. During the scuffle of snatching the gun, accidentally, the gun was fired, which hit on the chest of Balveer Singh. At that time, Kashmir Singh also arrived there and took the gun from the hand of Narendra Singh. On account of the first shot, Narendra Singh became nervous. He, after leaving the gun there, ran away from the spot. Kashmir Singh then fired the gun, but it did not hit anybody. Balveer Singh died at the spot instantaneously. 3. According to the prosecution, Balveer Singh arrived at the spot after the firing had taken place. He lodged a report at PS - Keshorai Patan. According to that oral report, Balveer Singh was going to Bhiyan-gaon in a tractor for fetching manure. Kashmir Singh and Nirmal Singh were also with him. At about 3 PM, 2-3 furlongs before Village Bhiyan Narendra accused shot Balveer with his gun which hit on his chest, and Balveer died at the spot. Kulwant Singh according to this report, was telling Narrendra Singh to kill Balveer Singh. According to the said report, the motive was that the accused persons wanted to take revenge of their old litigation. Narendra Singh had fired at Balveer Singh in order to kill him. Hearing the sound of firing, he came to the spot. When Narendra Singh wanted to fire for the second time, Kashmir Singh snatched away the gun from Narendra Singh. At this, Narendra Singh and Kulwant Singh ran away. The gun was with Kashmir Singh. On this report, a case under sections 302/34, IPC was registered. During the investigation, the dead body of Balveer Singh was sent for postmortem examination. According to the doctor, the death was caused due to haemorrhage and shock resulted from the injuries to lungs and the heart. The gun was with Kashmir Singh. On this report, a case under sections 302/34, IPC was registered. During the investigation, the dead body of Balveer Singh was sent for postmortem examination. According to the doctor, the death was caused due to haemorrhage and shock resulted from the injuries to lungs and the heart. After usual investigation, tire police submitted a challan against accused Narendra and Kulwant Singh. Both the accused were then committed to the court of Sessions Judge, Bundi. 4. The learned Sessions Judge framed charges against accused Narendra Singh under sections 302 & 307, IPC and under section 27 of the Indian Arms Act. He framed charge against accused Kulwant Singh under section 302/114, IPC. Both the accused pleaded not guilty and claimed trial. 5. The learned Sessions Judge recorded statements of ten prosecution witnesses. The accused persons also examined three witnesses in their defence. After recording the entire evidence and hearing both the sides, the learned Sessions Judge found that the case against the accused persons was established by the prosecution. He therefore, found them guilty of the charges levelled against them; and punished them as mentioned above. 6. Mr. Ganpat Ram, the learned counsel for the accused-appellants argued that this is not a case where Balveer has been shot dead intentionally. According to him, this is a case of collision of two trollies. He argued that accidentally, the gun Sent off, which has resulted in the death of Balveer Singh. There was no premeditation or pre plan of the accused persons to kill Balveer Singh, argued the learned counsel, who further added that the road along which both the tractors were crossing each other, was about 7'-8' in width. The trolly attached to the tractor of the accused persons, was having a channel which was full of grass. The said channel was going out of the width of the tractor. On the other hand, Balveer Singh and others were also going in a tractor having an umbrella fixed on it along with the trolly. On account of less width of the road, both the tractors could not cross each other comfortably, While they were doing so, the channel of the tractor of the accused persons struck against the umbrella which was fixed on the tractor of the deceased, resulting in falling down of the umbrella on the ground. On account of less width of the road, both the tractors could not cross each other comfortably, While they were doing so, the channel of the tractor of the accused persons struck against the umbrella which was fixed on the tractor of the deceased, resulting in falling down of the umbrella on the ground. Balveer Singh alighted from the tractor and forwarded towards accused Narendra Singh. Some hot words were exchanged in between them. Balveer Singh then took the loaded gun from the tractor of the accused. They were standing on the road having a close distance of about 4' only in between them. The barrel of the gun was about 21/2' and the but portion of the gun was about 1 in length. So, on the whole, the gun was about 31/2' in length. When Balveer raised the gun toward Narendra Singh, the latter caught the gun from its butt side and Balveer caught it from its barrel side; and during this struggle, while snatching the gun from each others hand, it went off which hit on the chest of Balveer Singh. So, the incident took place accidentally, according to the learned counsel for the accused-appellants, who further argued that there was no pre plan or premeditation on the part of the accused persons for committing the murder of Balveer Singh, who had no knowledge that at 3 PM, Balveer (deceased) and others would be coming in a tractor from the opposite direction and would meet them in the way. By chance, while the accused persons were coming from village Bhiyan and crossed about 2-3 furlongs from the village, Balveer Singh (deceased) and Kashmir Singh came from the opposite direction in a tractor towards Bhiyan Village; and when both the tractors along with their trollies could not pass comfortably on the road, they collieded with each other and the scuffle took place as a result of which the accident happened. So, the argument of the learned counsel for the accused-appellants was that there was no pre plan or premeditation on the part of the accused persons for killing Balveer Singh, but, accidentally both the tractors met each other on the road which was only 7-8 in width, and they could not cross each other comfortably resulting in their collision and the umbrella of the tractor of Balveer Singh (deceased) struck against the tractor of the accused persons, as a result of which, it fell down on the ground. So, according to the learned counsel, all the happenings took place not with any intention but accidentally. 7. It was also argued by the learned counsel that according to the report lodged by the father of the deceased, the motive behind the killing Balveer Singh was old litigation, who mentioned in his report that Kulwant Singh had asked Narendra Singh to kill Balveer Singh as revenge of their old litigation was to be taken. According to the learned counsel, it means that there was some litigation between he deceased and the accused persons, and account of that enmity, Kulwant Singh had asked Narendra Singh to kill Balveer Singh. The learned counsel for the accused-appellants argued that there is nothing on the record to show that any litigation was pending in between the deceased and the accused persons. He further argued that if for a moment it is believed that some litigation was pending, then where was the occasion for the accused persons to have murdered Balveer Singh at that time? The accused persons, according to him, had no knowledge or intimation that Balveer Singh was going through the canal side to Village Bhiyan, at 3 PM. Therefore, the learned counsel argued that the motive as alleged by the complainant, Balwant Singh, is a false allegation. If the accused wanted to take revenge of some old litigation, then they had ample opportunity prior to the incident. What litigation was pending between the parties, has not been proved. The learned counsel added that it was the duty of the prosecution to have established to what litigation was pending in between the deceased and the accused persons,but,this fact has not been proved, to the contrary, the statement of Balwant Singh PW 4, the father of deceased Balveer Singh, is contradictory to report, Ex.P. 4. The learned counsel added that it was the duty of the prosecution to have established to what litigation was pending in between the deceased and the accused persons,but,this fact has not been proved, to the contrary, the statement of Balwant Singh PW 4, the father of deceased Balveer Singh, is contradictory to report, Ex.P. 4. Balwant Singh PW 4 in his statement, has stated the samething which has been mentioned in the report. But, in his cross-examination, he has said that there was no dispute or quarrel in between him and the accused persons. 8. Similarly, Kulwant Singh PW 2, brother of Balveer Singh, in his cross-examination, has said that there was no enmity with the accused persons. He has said that cases were pending between the accused person and his uncle, Nand Singh. But, he could not give any detail of those cases as to in which court they were so pending. Therefore, according to the learned counsel, there is no proof on the record to prove that some litigation was pending between the accused persons and Nand Singh, uncle of the deceased. So, the statement of Kashmir Singh remains uncorroborated. The learned counsel also argued that for the sake of argument, if believed that some litigation was pending in between Nand Singh and the accused persons, then the accused persons had enmity with Nand Singh and not with Nand Singh and not with the deceased, his brother Kashmir-Singh or his father Balwant Singh. Both Balwant Singh and Kashmir Singh have admitted that there was no enmity between them on the one side and the accused persons on the other. So, it was argued by the learned counsel that when there was no enmity between the complainant and the accused parties, there could be no question of talking revenge by killing Balveer Singh. The learned counsel further argued that it is admitted fact that in the tractor of Balveer Singh, Nirmal Singh, son of Nand Singh was also sittiag by the side of Balveer Singh; and so, if the accused persons had any motive to take revenge over the old litigation, that could be with Nand Singh, uncle of the deceased, and in order to take revenge, the accused could have killed Nirmal Singh. According to him, there was no reason for Narendra Singh to have fired at Balveer Singh, who could have well fired at Nirmal Singh, son of Nand Singh, who was also sitting in the same tractor by the side of Balveer Singh. Thus, the learned counsel argued that the motive behind the murder of Balveer Singh, as alleged by the prosecution is not corroborated by any proof. 9. The learned Public Prosecutor, in reply to the arguments of the learned counsel for the accused-appellants, could not satisfy us, nor could he proves as to what could be the motive for accused Narendra Singh to murder Balveer Singh. 10. Therefore, we are in full agreement with the learned counsel for the accused-appellants that there was no motive on the part of the accused persons to have committed the murder, according to whom, accidentally, the gun went off and the shot hit on the chest of Balveer Singh. 11. The most important aspect of this case is that Kulwant Singh had asked Narendra Singh for killing Balveer Singh. In the report Ex. P 4 Balwant Singh mentioned that Kulwant Singh was asking Narendra Singh to kill Balveer Singh that very day, to take revenge from him of the old litigation. So, according to the report, Ex. P 4, Kulwant Singh had asked Narendra Singh only to kill Balveer Singh. 12. Kashmir Singh, in his statement has stated that Kulwant Singh, while sitting in the trolly of the tractor, was asking Narendra Singh for killing all of the complainant party to take revenge of the old litigation. This is the difference in the statement and the report. 13. Nirmal singh PW 3 also in his statement has stated that Kulwant while sitting in the trolly, was asking Narendra Singh for taking revenge of the old litigation, and he was telling the former that nobody should go alive. 14. Kashmir Singh gave the information about the incident to his father Balwant Singh, who then came to the spot and later on lodged the report. So, in the report, the wordings were that Kulwant Singh had asked Narendra Singh to murder Balveer Singh only. During their statements the witnesses developed their version and stated that Balwant Singh had asked to kill all of them. This type of statements show that the prosecution witnesses are unreliable witnesses. 15. So, in the report, the wordings were that Kulwant Singh had asked Narendra Singh to murder Balveer Singh only. During their statements the witnesses developed their version and stated that Balwant Singh had asked to kill all of them. This type of statements show that the prosecution witnesses are unreliable witnesses. 15. In their statements, Kashmir Singh PW 2 and Nirmal Singh PW 3 have stated that they were going in a tractor driven by Balveer Singh, and from the opposite direction, Narendra Singh and Kulwant were also coming in a tractor. It is also in their statements that on account of collision of the two tractors, the umbrella which was fixed on the tractor of Balveer Singh (deceased) fell down on the ground in broken condition. Balwant Singh PW 4 has also given a similar statement. But, this fact has not been mentioned in the report, E.x. P. 4 by Balwant Singh while lodging it. In the report, he stated that his son Balveer Singh along with Kashmrsingh and Nirmal Singh were going in a tractor towards village Bhiyan. At about 3 PM, when they were about 2-3 furlongs away from the village, Narendra Singh murdered Balveer Singh by firing his gun which had hit on his chest. In the report, he also stated that Kulwant Singh was asking Narendra Singh that Balveer Singh be killed that very day. So, in the report, Balwant Singh PW 4 did not mention anything about the collision of the two trollies. Nor did he mention the fact of breaking down of the umbrella from the trolly of Balveer Singh on account of that collision. But, straightway he mentioned therein that Narendra Singh had hit Balveer Singh by gunshot on his chest while Balveer Singh was coming in a tractor. So, it becomes clear that from the very beginning the intention of Balwant Singh was not clear. Ho lodged the report in such words as to indicate that Narendra Singh intentionally, in order to kill Balveer Singh, had fired his gun at him. But, this is not the correct fact. The correct version has come in evidence, which shows that from one direction, Balveer Singh (deceased), Nirmal Singh and Kashmir Singh were coming in a tractor, and from the opposite direction the accused persons were coming in another tractor along the same road. But, this is not the correct fact. The correct version has come in evidence, which shows that from one direction, Balveer Singh (deceased), Nirmal Singh and Kashmir Singh were coming in a tractor, and from the opposite direction the accused persons were coming in another tractor along the same road. Both the tractors with their trollies struck against each other on account of less width of the road, as a result of which, the umbrella fitted on the trolly of Balveer Singh fell down on the ground in broken condition, which subsequently resulted in firing of gun. So, Balwant Singh tried to hide this fact. This shows that from the very beginning Balwant Singh, father of Balveer Singh (deceased) has not been with clean intention. He did not lodge the report fairly. 16. Another point argued by the learned counsel for the accused-appellants was that the site was inspected by the investigating officer in presence of Kashmir Singh, brother of Balveer Singh, and that, in the site plan it has been mentioned that the distance in between the accused and the deceased at the time when the gun went off, was about 4'. In his statement, Kashmir Singh PW 2 has stated that the distance in between Narendra Singh and Balveer Singh was about 7'. Nirmal Singh PW 3 also in his statement, has stated that the distance in between Narendra Singh and Balveer Singh was about 4' when the gun was fired. So, it was argued by the learned counsel that Mahavirdas tolled to show that the gun shot off from a distance of about 7', while actvally, the distance was only 4'. So, the learned counsel argued that the distance of 4' cannot be said to be an aiming range. The gun itself is about 3-4 in length. The barrel of the gun is about 21/2'. In order to fire a gun intentionally for the purpose of murder, there must be some distance. The distance of 4' cannot be said to be a firing range/distance. The gun itself is about 3-4 in length. The barrel of the gun is about 21/2'. In order to fire a gun intentionally for the purpose of murder, there must be some distance. The distance of 4' cannot be said to be a firing range/distance. Both Balveer Singh and Narendra Singh were standing at a distance of about 4' to each other, and when the gun was raised for firing, the barrel of the gun must have reached the chest of Balveer Singh, and in that case, he could have easily caught hold of the barrel, removed the mouth of the barrel from his chest and avoided the incident. But, in this case, both Balveer Singh and Narendra Singh caught the gun and tried to snatch it away from each others hand. In the course of that scuffle, the gun went off and hit on the chest of Balveer Singh. This was probable. 17. Dr. Nagesh Joshi PW 8, who conducted the post-mortem examination on the dead body of Balveer Singh, has stated that in this case, the firearm wound was caused from a close range. Pieces of cardboard were found over the posterior thorasic wall which were very near the shoulder-blade. He has further stated that it is correct to say that the firing in this case was done from a very close distance. According to him, it was possible that the fire arm was fired from a distance of 6. In the opinion of the doctor, it was possible that if the victim had gripped the firearm and it was fired, then such injury was possible. 18. Thus, looking to the statement of Dr. Joshi PW 8, it becomes clear that the firing was done from a very close range. So, it is incorrect to say that the gun was fired from a distance of about 7'. Actually, the mouth of the barrel was about 6" away from the chest of Balveer Singh, and while they were grappling and trying to snatch away the gun from each others hand, it went off and hit on the chest of Balveer Singh. So, this was all an accidental case. There was no intention on the part of the accused to fire the gun intentionally in order to murder Balveer Singh. There was no motive on his part for this killing. So, this was all an accidental case. There was no intention on the part of the accused to fire the gun intentionally in order to murder Balveer Singh. There was no motive on his part for this killing. It is not necessary that there should always be some motive behind a murder. In such cases, the entire matter depends on the evidence on record. If from the evidence it is established that the accused has committed the murder then he would be convicted of the offence irrespective of any motive. In the present case, motive has been alleged. But, as discussed above, the contention about the motive is a false one. The complainant and Kasmir Singh have admitted that there was no enmity between them on one side and the accused party on the other; and that, no litigation was pending between them. So, there could be no motive in this case. The contention raised by the complainant party, is a false one. From the evidence, it is clear that the accused and the deceased were crossing each other in tractors from opposite directions, and when the trollies of the two tractors collided against each other on account of less width of the road, the umbrella of the tractor of the deceased fell down on the ground in broken condition. So, on account of a collision, which was accidental, some dispute took place, and while snatching the gun from each others band, the gun want off, which resulted in the death of Balveer Singh. It is not; the case of the prosecution that the gun was loaded by Narendra Singh at that time before firing it. The gun already loaded was lying in the tractor of the accused. It is in the evidence that when the umbrella of the tractor of Balveer Singh struck against the trolly of the tractor of the accused persons, Balveer Singh got down from the tractor and advanced towards Narendra Singh. That advancement was to protest against the collision. There was no demage caused to tire accused persons. Neither their tractor nor the trolly thereof was damaged. But, demage was caused to the umbrella of the tractor of Balveesingh (deceased) Balveer Singh had a grievance to that damage, and for that, he advanced towards Narendra Singh. So, there must have been some scuffle and exchange of hot words. There was no demage caused to tire accused persons. Neither their tractor nor the trolly thereof was damaged. But, demage was caused to the umbrella of the tractor of Balveesingh (deceased) Balveer Singh had a grievance to that damage, and for that, he advanced towards Narendra Singh. So, there must have been some scuffle and exchange of hot words. The argument of the learned counsel for the accused-appellants was that Balveer then took the loaded gun from the tractor of the accused persons, and when Narendra Singh wanted to snatch away the gun from the hands of Balveer Singh, it went off. In our view, this is a probable explanation and cause of the firing. 19. In the evidence, it has come that there was a second firing also. According to Kasmir Singh PW 2, Narendra Singh wanted to fire his gun for the second time towards him, but, he caught the barrel of the gun and lowered it down on the ground, as a result of which, though the gun was fired again, but, it did not hit him, and the fire passed through his two legs. But, in the report, Ex. P 4, Balwant did not mention anything about second fire. He only stated that when Narendra Singh wanted to fire the gun for the second time, Kashmir Singh snatched away the gun from his hands. It means, there was no second fire. The statement of the witnesses in this regard that a second fire was also done, is a wrong statement and contradictory to the FIR. 20. Another aspect is that according to the prosecution, the gun was fired for the second time also, but, it that had hit the ground. It means that there must have been pellets in the ground, and also, there must have been some mark on the ground on account of the second firing. According to the SHO, there was no mark on the Road. The SHO had tried to search the pellets and the cardboard at the spot, but, he could not find them. This statement of Onkar Singh, SHO, PW 10, is not believable. He had reached the spot at about 6 PM, and inspected the site. It was not dark at that time. The SHO had tried to search the pellets and the cardboard at the spot, but, he could not find them. This statement of Onkar Singh, SHO, PW 10, is not believable. He had reached the spot at about 6 PM, and inspected the site. It was not dark at that time. Had it been a fact that the gun was fired twice, and the second shot had hit the ground, the SHO must have found the pellets and the cardboard on the ground. So, in this respect, the case has been exaggerated. 21. It was also argued by the learned counsel that had there been any intention on the part of the accused persons to kill Balveer Singh, then, accused Narendra Singh would have fired his tractor, and there could be no question of his coming down from the tractor and reaching near Balveer Singh. According to him, the gun was a loaded one, and so, to take revenge, he could have well fired it from his tractor. But, the theory of revenge is a false one. There was no enmity in between the deceased and the accused persons. So, the explanation given by the learned counsel for the accused appellants that it was not an intentional fire and but an accidental one, is a probable explanation, and as such, is believed by us. 22. Obviously, there is no case against accused Kulwant Singh. The only allegation against him is that he had asked Narendra Singh for killing Balveer Singh in order to take revenge of the old litigation. As we have discussed above, there is no proof of any old litigation between the deceased and the accused party. On the other hand, it has been admitted by the father and the brother of the deceased that they had no enmity with the accused persons, and that, no case was pending between them. So, there was no question of asking by Kulwant Singh to Narendra Singh for murdering Balveer Singh. Therefore, Kulwant Singh has been unnecessarily and falsely implicated in this case. The whole prosecution story against this appellant is believed by us to be false, and he is not found guilty of the charge levelled against him. 23. So, there was no question of asking by Kulwant Singh to Narendra Singh for murdering Balveer Singh. Therefore, Kulwant Singh has been unnecessarily and falsely implicated in this case. The whole prosecution story against this appellant is believed by us to be false, and he is not found guilty of the charge levelled against him. 23. In view of our above discussion, we do not agree with the finding of the learned Sessions Judge and do not find that a case has been made out under section 302 & 307, IPC and under section 27 of the Indian Arms Act against Narendra Singh accused. Therefore, he has been wrongly convicted of these offences. 24. In the result, the appeal is accepted. Appellant Narendra Singh is not found guilty of offences under sections 302 & 307, IPC and under section 27 of the Indian Arms Act. He is acquitted of these offences. He is in jail. He be released forthwith. 25. Appellant Kulwant Singh is not found guilty of offence under section 312/114, IPC, and he is acquitted of this offence. He is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeal accepted. *******