R. C. PATNAIK, J. ( 1 ) THIS appeal is directed against the judgment passed by the Assistant Sessions Judge, Gunupur, in Sessions Case No. 3/84. acquitting the respondent of the charges u/ss. 304/326 of the Indian Penal Code and section 25 (1) (b) of the Arms Act and for enhancement of the sentence imposed for his conviction under section 25 (1) (a) of the Arms Act ( 2 ) THE prosecution case, in brief is as follows:some residents of villages Dimiriguda. Doragaon and Tikarpada within the jurisdiction of Ambadola police station in the district of Koraput went to Ringabali jungle for shooting games which is locally known as Haka, hunting of wild animals. The respondent was one of them and was holding a single barrel bridge load gun belonging to Sadasiva Guru, a member of the group. Three other persons. namely, Bharati Pujhari, Tangara Pujhari and Goura Dandasena, were also carrying guns. They and the respondent took their position at the foot of the hill. The others went up the hill with a view to chasing and goarding wild animals and bringing them within the gun range. The respondent did not possess a licence though Sadasiva, the owner of the gun, did have one. As the beaters and chasers were chasing the animals, they heard a gun fire. Lingaraj Dandasena, one of the chasers received a shot and lay dead. Ramachandra Odia (P. W. 2) was hit by pellets injured. As soon as the chasers arrived at the place, the respondent plaintively crying told them that he had killed two persons. That very night, First Information Report was lodged at the Ambadloa police station by Brundaban with other villagers. The injured was examined and the post-mortem examination over the dead body was done. The guns and cartridges were sent for chemical examination and for examination by a Ballistic expert the respondent was placed under trial u/ss. 304/326 of the Indian Penal Code and Sections 25 (1) (b) and 25 (1) (a) of the Arms Act. ( 3 ) THE respondent totally denied the allegations. ( 4 ) WITH a view to proving the charges, the prosecution examined 23 witnesses most of whom belonged to the hunting party. P. W. 2 is the injured. P. Ws. 1, 2 and 5 testified to the extrajudicial confession of the respondent that he had killed two persons. ( 3 ) THE respondent totally denied the allegations. ( 4 ) WITH a view to proving the charges, the prosecution examined 23 witnesses most of whom belonged to the hunting party. P. W. 2 is the injured. P. Ws. 1, 2 and 5 testified to the extrajudicial confession of the respondent that he had killed two persons. ( 5 ) THE learned trial judge accepted the extrajudicial confession and held that death of Lingaraj Dandasena and injury on Ramachandra Odia (P. W. 2) were due to the fire of the gun by the respondent who did not possess a licence under the Arms Act. He, however, acquitted the respondent of the charges under sections 304/326 of the Indian Penal Code, holding that the incident took place due to accident. He also acquitted the respondent of the charge u/s. 25 (1) (b) of the Arms Act on account of the failure of the prosecution to produce the notification u/s. 4 of the Arms Act, but convicted the respondent u/s. 25 (1) (a) of the Arms Act and sentenced him to pay a fine of Rs. 120/-, in default, to undergo rigorous imprisonment for one month Aggrieved by the judgment of acquittal, the State of Orissa has preferred this appeal. It has also sought for enhancement of the sentence imposed for conviction under section 25 (1) (a) of the Arms Act ( 6 ) P. WS. 1, 2, 3, 4, 5 and 6 were the members )f the party which went for hunting along with the respondent. The trial judge has believed the extra judicial confession said to have been made by the respondent before P. Ws. 1, 2 and 5 vide paragraph 15 of his judgment. In view of his acceptance of the extra-judicial confession, it is difficult to agree with his finding to the following effect:on these evidence there can be no definite finding whether the deceased died due to gunshot by the accused and also Rama Chandra Odia (P. W. 2) received injuries by the gun shot of the accused. In view of his acceptance of the extra-judicial confession, it is difficult to agree with his finding to the following effect:on these evidence there can be no definite finding whether the deceased died due to gunshot by the accused and also Rama Chandra Odia (P. W. 2) received injuries by the gun shot of the accused. If the extra-judicial confession was free from any blemish and was reliable and as I have indicated above was accepted by the trial judge, his finding that it could not be said definitely as to whether Lingaraj died due to the firing of the gun by the respondent and if Rama Chandra (P. W. 2) received injuries caused by the pellets fired from the gun held by the respondent, cannot be sustained. Therefore, the learned counsel for the State is right in urging that on the materials there can be no doubt that the death of Lingaraj and injuries on Rama Chandra (P. W. 2) were caused by the firing of the gun by the respondent ( 7 ) THE next question for consideration is: If the death of Lingaraj and injuries on Rama Chandra (P. W. 2) were caused by accident? the plea of the respondent is one of denial. Hence, the learned counsel for the State has urged that if the respondent relied upon a general exception or special exception, section 105 of the Evidence Act raises a presumption against him and also throws a burden on him to rebut the said presumption. ( 8 ) UNDER section 105 of the Evidence Act the court shall presume the absence of circumstances bringing the case within any of the exceptions, i. e. , the court shall regard the non-existence of such circumstances as proved till they are disproved. The presumption may be rebutted by the accused by adducing evidence to support the plea of accident in the circumstances mentioned in section 80 of the Indian Penal Code. It may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged: that burden never shifts. ( 9 ) THOUGH the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. Where the accused is alleged to have committed the murder, the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution. The accused against whom a presumption is drawn under section 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in section 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. The evident adduced may not be sufficient to prove all the ingredients of section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i. e. , it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of section 300 of the Indian Penal Code or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. ( 10 ) FAILURE on the part of the accused to establish all the circumstances bringing his case under the exception, does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence. K. M. Nanavati v. State of Maharastra. The respondent has not adduced any evidence nor has he even raised a plea of accident, his plea being one of complete denial. K. M. Nanavati v. State of Maharastra. The respondent has not adduced any evidence nor has he even raised a plea of accident, his plea being one of complete denial. Even then, it has to be seen if on all the evidence adduced by the -prosecution arid the circumstances disclosed, the exception contained in section 80 of the Indian Penal Code can be attracted and it has to be judged if the ingredients of the offences have been established and if a case has been made out against the respondent. In the case of Basqnt Singh v. Empero, Basant Singh and 20 others went to jungle to shoot pig, Basant took up his position and waited in the jungle. His companions went ahead a beat a pig towards him. A boar was driven towards him in his direction. Basant Singh fired at him. The boar was missed and one Amar Singh was hit and later succumbed. It was held by Broadway, :the beaters, amongst whom was Amar Singh deceased, knew exactly where Basant Singh was seated whereas Basant Singh could not possibly tell, with any degree of exactitude, the position of the various beaters. Basant Singh was acquitted. Approving the observation of Broadway, J. , Shadi Lal, C. J. in Shakar Khan v. Emperor3 held, shooting pigs on foot always carries with it a certain amount of risk and, if, by chance, a shot hit one of the beaters or spectators, the matter must be treated as that of a pure accident. In the State Government, Madhya Pradesh v. Rangaswami, section 80 was applied though the accused there shot with an unlicensed gun. The principle was also applied to the case where an arrow was shot under the bona fide belief that it was aimed at a boar that had entered into the field and was destroying the maize crop, but it hit a human being. Section 80 was applied holding that there was no reason for holding that the accused had shot the arrow intentionally at the deceased. ( 11 ) THERE is no material in this case to show that there was any want of care and circumspection on the part of the respondent. The facts and circumstances go to indicate a case of pure accident. Both intention and know ledge were lacking. I see, therefore, no merit in the submissions made by the counsel for the appellant. The facts and circumstances go to indicate a case of pure accident. Both intention and know ledge were lacking. I see, therefore, no merit in the submissions made by the counsel for the appellant. I also see no justification for enhancement of the sentence. In the result, the Government Appeal is dismissed. Appeal dismissed.