Judgment B.N. Katju, J. 1. BRIJ Mohan has filed criminal appeal No. 2420 of 1977 against the judgment of III Additional Sessions Judge, Agra dated 15-10-77 passed in Sessions Trial No. 405 of 1976 convicting him under Section 304-A IPC and sentencing him to one year's rigorous imprisonment. Criminal Appeal No. 2995 of 1977 has been filed by Aidal Singh complainant PW 1 against the acquittal of BRIJ Mohan u/Sec.302 IPC. 2. THE case of the prosecution is that Smt. Mahadevi deceased was the sister of Aidal Singh PW 1. She was married to Mahabir Singh alias Nathi Lal the son of Girdhari Singh PW 4. Girdhari Singh, has three sons, namely, Mahabir Singh. Raghubir Singh and Balbir Singh. He had one brother, namely, Indra Singh. Indra Singh died many years back leaving behind his widow Smt. Parvati. (Girdhari Singh had 116 bighas agricultural land in village Mihawa and Smt. Parvati had about 25 bighas of land. She was issueless. Patiram was the Karinda of Girdhari Singh. He had five sons, namely, Yaspal Singh. Ram Prasad, Gita Ram, Brij Mohan accused and Ram Mohan. Girdhari Singh got the land of Smt. Parvati (about 25 bighas) transferred to Yashpal Singh, Ram Prasad and Gita Ram. Pati Ham and his wile Smt. Ramdevi who was a beautiful lady lived in the house of Girdhari Singh and Girdhari Singh had adopted brij Mohan accused as his grandson. Girdhari Singh wanted to give some of his land to Brij Mohan accused and his brother Ram Mohan but Smt. Mahadevi deceased objected to it and said that she would not allow this is to take place as she had children. On 21-1-1975 at about 9 p.m. Bhudha Ram PW 2, Dongar Singh PW 3, Girdhari Singh, Pati Ram, Ramu Pandit and Brij Mohan accused were warming themselves around fire in front of the house of Girdhari Singh in village Mihawa when Mahabir Singh came there and told Pati Ram and Brij Mohan accused that they should live separately as quarrels took place daily in their house on account of them. This annoyed Brij Mohan accused and he said that he would separate on that very day and went inside the house of Girdhari Singh and fired at Smt. Mahadevi deceased with the gun of Girdhari Singh which resulted in her death on the spot. This annoyed Brij Mohan accused and he said that he would separate on that very day and went inside the house of Girdhari Singh and fired at Smt. Mahadevi deceased with the gun of Girdhari Singh which resulted in her death on the spot. The first information report was) lodged by Girdhari Singh PW 4 at police station Iradatnagar at 9.15 p.m. on the same day (21-1-75). It was mentioned in this report that his licensed gun had gone off accidentally when it was being loaded by Brij Mohan accused and Smt. Mahadevi had received gun shot injuries as she came in front of the barrel of the gun resulting in her death on the spot. 3. AIDAL Singh PW 1 filed a complaint under section 302 IPC dated 26-4-75 in the court of Chief Judicial Magistrate, Agra on 29-4-75 in which it was stated that Brij Mohan accused had committed the murder of Smt. Mahadevi deceased by firing at her with the gun of Girdhari Singh. 4. THE Station Officer Police Station Iradatnagar filed a charge-sheet under section 304-A IPC against Brij Mohan accused dated 26-2-75 and the complaint filed by Aidal Singh was connected with it and Brij Mohan appellant was tried under section 302 IPC and in the alternative u/Sec.304-A IPC in the Court of Sessions. The prosecution examined three eye witnesses, namely, Buddha Ram PW 2, Dongar Singh PW 3 and Girdhari Singh PW 4. 5. THE appellant pleaded not guilty and stated that the gun of Girdhari Singh went off accidentally while it was being loaded by him causing gun-shot injuries to Smt. Mahadevi deceased who had come in front of the gun. 6. THE trial court after considering the evidence on record came to the conclusion that the appellant was guilty under section 304-A IPC and convicted and sentenced him as mentioned earlier. He was acquitted under section 302 IPC by the trial court. Buddha Ram PW 2 deposed that on the night of occurrence at about 9 p.m. he, Girdhari Singh PW 4, Dongar Singh PW 3, Brij Mohan accused, Pati Ram and Ramu Pandit were warming themselves around fire in front of the house of Girdhari Singh when Mahabir Singh came there and told Brij Mohan accused and Pati Ram that they should live separately as quarrels took place daily in their house on account of them. This annoyed Brij Mohan accused and he went inside the house of Girdhari Singh and picked up the gun of Girdhari Singh which was kept against a pillar and fired at Smt, Mahadevi deceased which resulted in her death on the spot. His evidence is corroborated by the evidence of Dongar Singh PW 3. Dongar Singh PW 3, however, deposed that the gun of Girdhari Singh was hanging from a peg and it was loaded by Brij Mohan accused and he thereafter fired at Smt. Mahadevi deceased which is not supported to the statement of Buddha Ram who did not depose that the gun of Girdhari Singh was loaded by Brij Mohan accused before he fired it at Smt. Mahadevi deceased but stated that it was kept against a pillar from where it was taken by the appellant before he fired at the deceased. Further the evidence of both these witnesses is contradicted by the evidence of Girdhari Singh PW 4 who supported the first information report lodged by him in which it was mentioned that his gun gone off accidentally while it was being loaded by Brij Mohan accused and gun shot injuries were caused to Smt. Mahadevi deceased who had come in front. It is noteworthy that Girdhari Singh was not declared hostile and cross-examined by the prosecution. Moreover, the prosecution did not examine Mahabir Singh the husband of Smt. Mahadevi deceased in support of its case whose presence was admitted by Buddha Ram PW 2 and Dongar Singh PW 3 and it was stated by them that Brij Mohan accused had become annoyed and had gone inside the house of Girdhari Singh when Mahabir Singh had told him and his father Pati Ram to live separately. It may also be mentioned that it was stated by Buddha Ram PW 2 that after Brij Mohan accused had fired at the deceased he touched the feet of Girdhari Singh and handed over his gun to him but this was not supported by Dongar Singh PW 3. Further Girdhari Singh PW 4 had deposed that there was long standing enmity between him and Buddha Ram PW 2 and Dongar Singh PW 3. Further Girdhari Singh PW 4 had deposed that there was long standing enmity between him and Buddha Ram PW 2 and Dongar Singh PW 3. In these circumstances it is difficult to believe that both of them would have been warming themselves around a fire in front of the house of Girdhari Singh specially when their houses are at a short distance from the house of Girdhari Singh. Their presence at the time of incident at the house of Girdhari Singh is, therefore, open to grave doubt. It is also noteworthy that the complaint was filed by Aidal Singh after a considerable delay. It was admitted by him that he had come to village Mihawa on the day after the incident but he sent an application to the Senior Superintendent of Police, Agra regarding the incident after more than one month on 22-5-75 which is also not traceable in the office of the Senior Superintendent of Police, Agra. In these circumstances the evidence of Buddha Ram PW 2 and Dongar Singh PW 3 appears to be unreliable. 7. WE examined Om Prakash Mani Tripathi Ballistic Expert in order to find out whether a gun can go off accidentally while it is being loaded. It was stated by him that hammer action gun can go off accidentally when it is being loaded by negligence By negligence he meant that if the trigger is on before loading then it can go off accidentally on jerk. If the gun is hammerless then the chance of it going off accidentally is remote unless there is some defect. The licenced gun of Girdhari Singh was not produced in the trial court. It cannot, therefore, be determined as to whether it was hammerless or hammer action gun and also whether it was defective or not. In these circumstances the possibility of its going off accidentally while being loaded cannot be excluded in view of the evidence of Girdhari Singh. The result, therefore, is that the possibility of Smt. Mahadevi deceased receiving fatal gun shot injuries accidentally while the gun of Girdhari Singh was being loaded by Brij Mohan appellant cannot be excluded. Brij Mohan appellant cannot, therefore, be convicted either under section 302 IPC or under section 304-A IPC. 8. The result, therefore, is that the possibility of Smt. Mahadevi deceased receiving fatal gun shot injuries accidentally while the gun of Girdhari Singh was being loaded by Brij Mohan appellant cannot be excluded. Brij Mohan appellant cannot, therefore, be convicted either under section 302 IPC or under section 304-A IPC. 8. CRIMINAL Appeal No. 2420 of 1977 filed by Brij Mohan appellant against his conviction under section 304-A. IPC and the sentence of one years' rigorous imprisonment awarded to him thereunder is allowed and his conviction and sentence are set aside. Criminal Appeal No 2995 of 1977 filed by Aidal Singh against the acquittal of Brij Mohan u/Sec.302 IPC is; dismissed. 9. BRIJ Mohan appellant is on bail. He need not surrender. His bail bonds are discharged.