B. K. SHARMA, J. ( 1 ) THIS is an appeal against the judgment order dated 15/07/1976 by M. Wahaj Uddin, the then Sessions Judge, Agra in S. T. No. 567 of 1979, State v. Smt. Kamlesh, whereby he convicted the accused-appellant of the offence under Section 304-A, I. P. C. sentenced her to suffer simple imprisonment for a period of six months. The deceased in this case Smt. Saroj Devi was the wife of Sri Sukhdeo Sharma who was A. I. O. , Agriculture, posted at Shamshabad. Smt. Kamlesh, the accused-appellant is the wife of Satish Chand Gautam son of Shri Sukhdeo Sharma and the deceased. They all lived together in one house in the Block campus along with Sanjeev Kumar, younger brother of Satish Chand Gautam. The occurrence took place in the night between 23rd and 24/12/1978 at about 1. 15 a. m. Shri Sukhdeo Sharma, father-in-law of the accused-appellant was away on training at Kanpur in the days of occurrence. The deceased Smt. Sarojdevi received fire-arm injury on her person. The size of the Gun-shot wound of entry was 1" x 3" x chest cavity deep through and through on the right side of chest 3" below clavicle. Its exit wound was 2" x 1" x 1/2" on the right back. Ribs, 2nd to 9th were fractured. Pleura was ruptured on both sides. Diaphragm was lacerated. Heart was ruptured. The deceased died instantaneously at the time of occurrence. ( 2 ) SOUND of many fires were heard by the head Moharrir at the Police Station coming from the side of block campus who consequently wake-up the Station Officer Sri Srinivas Agarwal. The A. O. thereupon reached the block and found the dead body of the deceased lying in the Varandah of the house near the wall. The accused-appellant gave him a written First Information Report Exhibit K5 containing the version that at 1. The A. O. thereupon reached the block and found the dead body of the deceased lying in the Varandah of the house near the wall. The accused-appellant gave him a written First Information Report Exhibit K5 containing the version that at 1. 45 a. m. the deceased awakened her Dewar (her husbands younger brother) Sanjeev, for getting herself urinated and brought them out from the room, that the deceased was going ahead of them, that a lantern was burning on the Varandah and they saw a person on the wall of the house that as soon as the deceased crossed the Verandah and reached the Angan, that person fired at the deceased, that she and her Dewar retreated and went back into the room and the deceased cried and ran in to the Verandah, that at that time one more shot was fired and then the deceased fell down that she along with the accused-appellant closed the door of the room and she fired from the window by her gun, hearing the sound of which that person jumped back and ran away, that she tired several shots with her licensed gun, that on hearing of the shot and the sound of fires, the residents of the Block colony assembled and then she came out in the Verandah and saw the deceased lying in a pool of blood. It was also stated in her FIR that they had seen the person who had fired from the wall and they could identify the person. ( 3 ) ON the basis of the written F. I. R. check report Exhibit Ka-2 was prepared at the Police Station and a case was registered under Section 302, I. P. C. against the unknown assailant. The usual investigation followed. The dead body of the deceased was sent for post-mortem. The I. C. interrogated the witnesses on 24-12-1978 and 25-12-1978. After recording the statement of two witnesses on 25-12-1978, he developed suspicion against the accused-appellant and so he turned the investigation towards that line. On 28-12-1978, the accused-appellant made a confession to Sardar Singh, in the presence of others that a mistake has been committed by her, that the gun was lying loaded and it went off over the old lady. On 28-12-1978, the accused-appellant made a confession to Sardar Singh, in the presence of others that a mistake has been committed by her, that the gun was lying loaded and it went off over the old lady. The I. O. interrogated Shri Sukhdeo Sharma, A. L. O. , Satish Chand Gautam, Sanjeev Kumar, Sardar Singh and Smt. Kamlesh and took her (the accused-appellant) into custody. The gun of Sukhdeo Sharma, the empty cartridges and the live cartridges were taken into custody by the I. O. In due course, he submitted charge-sheet against the accused-appellant for offence under Section 302, I. P. C. ( 4 ) AFTER committal, the accused-appellant was charged for the offence under Section 302, I. P. C. and tried for the same offence. ( 5 ) SANJEEV P. W. 1 the Dewar of the accused appellant testified that the deceased awakened all others, that the deceased was ahead and followed by the accused-appellant and then himself, that the deceased said to the accused-appellant that a bad character is present and asked her to close the door and threw the key near the accused-appellant, that in the meantime somebody out of the bad characters shot the deceased from the mender of the wall, that the deceased was left outside and he and the accused-appellant came inside the room. He resiled from the statement given before the I. O. during the investigation in which he is alleged to have said that he did not see any dacoits and that it appeared to him that it was only a drama of the accused-appellant. Thus, he has turned hostile. ( 6 ) SHRI Sukhdeo Sharma, P. W. 2, the father-in-law of the accused-appellant was not an eyewitness but he stated that on receiving telegram about the murder he came from Shashabad and inquired from the accused-appellant who told him that the deceased had awakened her and Sanjeev Kumar for urination and all the three went for urination led by the deceased. He was declared hostile by the prosecution. He resiled from the statement before the I. O. about the extra judicial confession given to Sardar Singh. ( 7 ) SATISH Chand Gautam, P. W. 5, husband of the accused-appellant too was not an eye-witness. He was declared hostile by the prosecution. He resiled from the statement before the I. O. about the extra judicial confession given to Sardar Singh. ( 7 ) SATISH Chand Gautam, P. W. 5, husband of the accused-appellant too was not an eye-witness. He stated that on learning of the murder he came and accused-appellant told him that bad characters had come in the night, that the deceased was going to urinate and cried and whereupon the bad characters fired. He further stated that the accused-appellant did not make any confession to him. He was declared hostile by the prosecution. He resiled from his statement under Section 161; Cr. P. C. as recorded by the I. C. ( 8 ) SHRI Om Prakash, P. W. 3 who lived 200 yards from the place stated that he did not hear any sound of fire from the place of occurrence. ( 9 ) RAM Kumar, P. W. 9, chowkidar of the godown in the block claimed that he did not hear the sound of any shot nor saw any bad character running. Sardar Singh gave positive evidence of extra-judicial confession by the accused-appellant before him as narrated earlier. ( 10 ) IN her statement under Section 313, Cr. P. C. the accused-appellant owned her written F. I. R. and narrated practically the same version as given by her therein. The defence examined Shankar Lal D. W. 1 in support of the version of the accused-appellant. ( 11 ) THE learned Sessions Judge accepted the evidence of extra-judicial confession given by Sardar Singh, P. W. 10 and held that the admission of the accused-appellant amounted to a confession of accidental firing. He placed reliance on the medical evidence and came to the conclusion that the possibility of the shot having been fired from the mender of the wall of the house was ruled out. He also doubted the defence version that there were miscreants and that the accused-appellant fired at them. Then he said that motive was wanting and it was not a case of any deliberate shooting and that was a case of negligence and that the shot was fired in a negligent manner resulting into death of the deceased. He also doubted the defence version that there were miscreants and that the accused-appellant fired at them. Then he said that motive was wanting and it was not a case of any deliberate shooting and that was a case of negligence and that the shot was fired in a negligent manner resulting into death of the deceased. The Sessions Judge accordingly gave her an acquittal for offence under Section 302, I. P. C. but convicted her for offence under Section 304-A of the I. P. C. for causing the death of Smt. Saroj Devi on account of handling and firing the gun in a negligent manner. ( 12 ) I have heard counsel for the parties and have also gone through the record. We need not be detained by the untenable argument by the learned defence counsel that at a trial on charge of murder, the accused could not be convicted of the offence under Section 304-A, I. P. C. The ruling State of Gujarat v. Hyder Ali, reported in 1976 (1) SCC 889 : ( AIR 1976 SC 1012 ) cited by him is against him. Therein the trial Court had convicted the accused for offence under Section 302, I. P. C. and the High Court had altered it to a conviction under Section 304-A, I. P. C. , and that the Apex Court found nothing wrong with the same. So we have to concentrate on the question whether on facts the conviction of the accused-appellant for the offence under Section 304-A, I. P. C. should be sustained. ( 13 ) THE main evidence relied upon by the prosecution is that given by Sardar Singh, P. W. 10. He claimed that gossips were going on about the murder, that somebody was saying that the accused-appellant had shot the deceased and another said that the bad character shot her dead. He further testified that he went to meet the A. D. O. (P. W. 2) at his house and there the accused-appellant, the A. D. O. and he himself were present and that on his asking the accused-appellant as to how far it is correct that she has done this (committed this murder) she replied "ha, GALTHI HAMSE HO GAYEE, BANDHOOK BHARI RAKHEE THEE. BANDHOOK CHAL GAYEE BHUDIYA KE OOPAR". BANDHOOK CHAL GAYEE BHUDIYA KE OOPAR". As noted above Sukhdeo Sharma, P. W. 2 categorically stated that the appellant did not make any confession to Sardar Singh, P. W. 10. He has denied having given the statement to the I. O. under Section 161, Cr. P. C. about extra-judicial confession by the accused-appellant in the presence of Sardar Singh. He was suggested that he had illicit relations with the accused-appellant and to cover the same he is concealing the truth. He refuted the suggestion. Shri Satish Chand Gautam, husband of the accused-appellant another witness of the extra-judicial confession denied his statement recorded in the case diary mentioning the extra-judicial confession therein. He too was suggested that his father loved the accused-appellant very much. He made a denial and said he liked her as a daughter is liked. He was suggested that the liking of his father towards the accused-appellant was disliked by the deceased. He denied the suggestion that the accused-appellant committed the murder of the deceased because the deceased was annoyed as his father loved the accused-appellant more. About the denial by Sukhdeo Sharma, P. W. 2, the father-in-law of the accused-appellant, it may be said that he could ill-afford to admit the suggestion about intimacy between him and the accused-appellant even if true but Satish Chand, P. W. 5 who was the own husband of the accused-appellant would never have forgiven her if she was having illicit intimacy or even unusual intimacy with his father and if the accused-appellant really made extra-judicial confession in his presence, then he would be the last person to spare her. Nobody would spare the murderer of his own mother even though it may be ones own wife. ( 14 ) SARDAR Singh, P. W. 10 has stated in his examination-in-chief that extra-judicial confession was made by the accused-appellant in the presence of the A. D. O. and of himself. This excluded the presence of Satish Chand, P. W. 5 at that time. Sardar Singh was confronted in his cross-examination with his statement under Section 161, Cr. ( 14 ) SARDAR Singh, P. W. 10 has stated in his examination-in-chief that extra-judicial confession was made by the accused-appellant in the presence of the A. D. O. and of himself. This excluded the presence of Satish Chand, P. W. 5 at that time. Sardar Singh was confronted in his cross-examination with his statement under Section 161, Cr. P. C. in which he has said "sab GHARWALON KE SAMNE USSE POOCHTHACH KEE", i. e. , to say the questioning from the accused-appellant was made in the presence of all the house holders which will mean the presence not only of Shri Sukhdoo Sharma, P. W. 2 but also Satish Chand, P. W. 5 and Sanjeev Kumar, P. W. 1. The witness admitted having made the said statement before the I. O. and also admitted that he gave a correct statement before the I. O. He gave an explanation "doosare KAMARE MEN BACHHE MAUJOOD THE". This explanation does not satisfy the mind at all. There may be several rooms in his house and different persons may be present in different rooms but then it is a question of interrogation and confession by the accused-appellant. The statement that the interrogation was made in the presence of all the house holders would only mean that it was made in the immediate presence of all the house holders in the same room. In line with this statement before the I. O. which Sardar Singh, P. W. 10, admits to have made, Sanjiv, P. W. 1 also should have been a witness of the said extra-judicial confession but Sanjeev P. W. 1, not only did not testify to any such extra-judicial confession but was also not suggested by the prosecution in his cross-examination that the accused-appellant have made any extra-judicial confession in his presence. ( 15 ) SARDAR Singh, P. W. 10 testified that in the morning after the night of occurrence, he learnt about the receipt of fire-arm injury by the wife of Sukhdeo Sharma, A. D. O. and went to his quarter and found the A. D. O. was not present there but others were found. He does not say that at that time the accused-appellant made any extra-judicial confession to him. In the ordinary course, he would have asked the house holders present as to how the occurrence happened. But he is silent as to what the house holders told him. He does not say that at that time the accused-appellant made any extra-judicial confession to him. In the ordinary course, he would have asked the house holders present as to how the occurrence happened. But he is silent as to what the house holders told him. He then testified that 4-5 days after when the date was perhaps 28th of the month, he went to meet the A. D. O. who had come by then, and he claimed that at that stage he inquired from the accused-appellant and she made the statement as testified by him. The witness claims that rumours of two types were afoot, somebody said that it was the accused-appellant who had shot the deceased dead and another said that the bad characters shot the deceased dead whether or not such rumours were afoot this witness was least expected to constitute himself into an investigating officer into the truth about the occurrence. He was not directly or indirectly related to the family of the A. D. O. In his examination-in-chief he appears to have been suggested by the prosecution that he and Sukhdeo Sharma were on visiting terms with each other. His reply was "sukhdev SHARMA MERE YAHAN KHOB AATHE. MUCHE KAAM PADTHA THA. MEIN UNKE YAHAN AATHA JAATHA THA". In other words he said that the A. D. O. Sukhdeo Sharma had no occasion to visit his house and that it was he who used to visit Sukhdeo Sharma, A. D. O. on account of his own work. From the cross-examination made by the defence it is clear that before the posting of Shri Sukhdeo Sharma at Shamshabad, he did not have any acquaintance with him, that it was after the posting at Shamshabad, as A. D. O. that he used to meet him because he had work with the A. D. O. , that (witness) had work from Sukhdeo Sharma; A. D. O. relating to his (witnesss) agriculture. Sukhdeo Sharma was A. D. O. , Agriculture and so as a farmer he may have to visit the A. D. O. , Agriculture in connection with his official work. So, in the ordinary course, he was not expected to visit the house of the A. D. O. for that work. Sukhdeo Sharma was A. D. O. , Agriculture and so as a farmer he may have to visit the A. D. O. , Agriculture in connection with his official work. So, in the ordinary course, he was not expected to visit the house of the A. D. O. for that work. Therefore, his claim that if the A. D. O. was at his house, he met him there also in the ordinary course of his work was not acceptable. Even if we take that this witness had occasion to meet the A. D. O. at his house, his visit could only be about his official work. It is clear from his own statement that there was no personal relationship between the two which would have involved the visit of the witness and the A. D. O. to each others house. In particular, it may be stated that the witness did not claim that he ever visited the family of the A. D. O. at any time. Therefore, a person in his situation was not likely to interrogate the accused appellant who was the daughter-in-law of the A. D. O. at the A. D. O. s house to verify the alleged rumour about her being the person who committed the murder of the deceased. Thus, it is, extremely doubtful that he would take the liberty of interrogating the daughter-in-law of the A. D. O. with whom (with the A. D. O.), his acquaintence was limited only to his official work as A. D. O. , Agriculture. It was also unlikely that the accused-appellant who is not alleged to have made any confession to her father-in-law Sukhdeo Sharma, or husband or her Dewar (husbands younger brother) earlier would make an extra-judicial confession before this witness Sardar Singh on his asking her, as claimed by the witness. This witness does not say that he had any occasion to visit or meet her earlier. In fact, he categorically stated in paragraph 5 of his statement before the Sessions Judge "us DHIN KE PAHALE MARY KAMLESH MULGIM SE KABHEE BATHCHEETH NAHIN HUYEE". He being a perfect stranger to her, she was not likely to make to him any such confession as imputed to her. In fact, he categorically stated in paragraph 5 of his statement before the Sessions Judge "us DHIN KE PAHALE MARY KAMLESH MULGIM SE KABHEE BATHCHEETH NAHIN HUYEE". He being a perfect stranger to her, she was not likely to make to him any such confession as imputed to her. ( 16 ) ANOTHER circumstances which casts a shadow of doubt at the testimony of the witness Sardar Singh is that if an extra-judicial confession had been made to him by the accused-appellant and that too at his asking as claimed by him, then he would have gone to the police straightway and informed the I. O. as to what had been confessed to him by her. He did not say so. On the contrary he stated "mem UP AROKT BATHCHEETH HONE KE BADME A. D. O. SAHAB KE GHAR SE APNE GHAR CHALA GHAYA". It was elected from him in his cross-examination that he did not tell anyone in the village about the extra judicial confession having been made by the accused-appellant. If he had not approached the I. O. with this information, the I. O. was not likely to interrogate him about it or to interrogated others about it. He claimed that the I. O. had recorded his statement on 28th itself. He claimed that he did not remember as to at what time his statement was recorded by the I. O. Then he said that perhaps it was evening time, that no other person was interrogated by the I. O. in his presence. He further stated "dhoda DHIN BAKHEE THA. MEM US DHIN DHUBARA APANE KAAM SE BLOCK MEM AA GAYAA THA. DHAROGAJI NE NAHEM BULVAYAA THA. YADH NAHIN US DHIN SHAM KO KISKE PAAS AAYA THA". His statement became definite that it was in the evening that he was interrogated by the I. O. when he has made a second visit to the block campus. The I. O. Sriniwas Agarwal P. W. 11 claimed that on 28/12/1978 he interrogated Sukhdeo Sharma further and interrogated Satish Chandra, Sanjeev Kumar and Sardar Singh and recorded further statement of Smt. Kamlesh and the same day he arrested Smt. Kamlesh accused. He claimed to have recorded statement of Sardar Singh in block Shamshabad and also recorded the statement of Satish Chandra and Sanjeev Kumar that time. He claimed to have recorded statement of Sardar Singh in block Shamshabad and also recorded the statement of Satish Chandra and Sanjeev Kumar that time. He further stated that he first interrogated Sukhdeo Sharma, then interrogated Sanjeev Kumar, then Sardar Singh and then Smt. Kamlesh, one after another in continuation. He did not record in the case diary the time of interrogating these witnesses and also could not say whether he recorded the statements in the morning or in the noon or in the evening. However, he stated that he arrested Smt. Kamlesh after recording all these statements. The G. D. entry Ext. , K-18 dated 28/12/1978 at 12. 30 p. m. mentioned about arrest of the accused-appellant at 12. 15 p. m. from her house. So, this will imply that the statements of all these persons including Sardar Singh (P. W. 10) were recorded by the I. O. in the forenoon of the day, while the evidence of Sardar Singh (P. W. 10) indicates that his statement was recorded on the date much later in the afternoon before the dusk time. If this was the only discrepancy or doubtful feature one might be tempted to take it as a lapse on the part of the witness Sardar Singh. But here there are numerous circumstances each casting doubt over the testimony of Sardar Singh. As noticed earlier Sardar Singh does not claim having approached the I. O. and passed on the information about the extra-judicial confession which he claimed to have been made to him. Sukhdeo Sharma A. D. O. , Satish Chandra Gautam (P. W. 5) and Sanjeev Kumar (P. W. 1) do not claim to have approached and informed him about the alleged extra-judicial confession. The I. O. also does not claim that he was approached by any of these persons and informed about it. The reason for the recording of the statements of these persons as given by him was that he developed suspicion after interrogating Ku. Suman, D. O. Daya Shankar Gautam, B. D. O. and Daya Shankar Gautam, B. D. O. and thereupon he turned the investigation towards that line. The prosecution has not examined Km. Suman or Daya Shankar Gautam, B. D. O. at the trial to set out any incriminating circumstances disclosed by them so as to raise a suspicion against her. Suman, D. O. Daya Shankar Gautam, B. D. O. and Daya Shankar Gautam, B. D. O. and thereupon he turned the investigation towards that line. The prosecution has not examined Km. Suman or Daya Shankar Gautam, B. D. O. at the trial to set out any incriminating circumstances disclosed by them so as to raise a suspicion against her. The statement of the I. O. tends to show that on 25-12-78 he turned the needle of the investigation towards the accused-appellant and in all probability the extra-judicial confession evidence has been weaved by him on 28-12-78 to make out a case against the accused-appellant. ( 17 ) THE defence suggestion to Sardar Singh (P. W. 10) is that he is broker of the police. There is no doubt that he was an outsider to the family at whose house this murder took place and became a witness because he was at the back and call of the Investigating Officer. As I have noticed earlier in the ordinary course he would not have poked his nose in the matter of the murder of the wife of the A. D. O. ( 18 ) ANOTHER point of importance is that the alleged extra-judicial confession as testified to by witness Sardar Singh is vague and incomplete. He did not say as to where the alleged gun was lying and how and in what circumstances it went off. In the ordinary course if such a confession had actually been made by the accused-appellant before this witness he would have asked her as to where the weapon was lying and how and in what circumstances it went off and hit the deceased. The fact that he does not claim to have asked the accused-appellant any such questions is yet another circumstance to show that actually no extra-judicial confession had been made to him by the accused-appellant. ( 19 ) DURING the investigation the prosecution developed different cases. One was that the accused-appellant was annoyed with her mother-in-law (deceased) as the deceased had declined to permit her to go to her parents house and her Nansal (maternal grand-fathers house) for which she had been pressing for 2-3 days. Another story set out was that there was illicit intimacy between the accused-appellant and Sukhdeo Sharma (P. W. 2) which was disliked by the deceased and for this reason she took the life of the deceased. Another story set out was that there was illicit intimacy between the accused-appellant and Sukhdeo Sharma (P. W. 2) which was disliked by the deceased and for this reason she took the life of the deceased. All these pleas have failed at the trial. It appears that in the copies of the alleged statements under Section 161, Cr. P. C. (Ext. Ka-13 and Ext. Ka-14) recorded in the case diary the extra-judicial confession mentioned therein included the confession of the motive for causing the death of the deceased, namely the refusal by the deceased to accept her requests for sending her to her parents house and to her Nansal (maternal grandfathers house ). We have noted earlier that witness Sardar Singh claimed that the appellant confessed about the loaded gun going off accidentally and injuring the deceased. This throws further doubt over his testimony at the trial. ( 20 ) SO, the evidence of extra-judicial confession adduced by the prosecution is totally rejected. ( 21 ) NOW there remains the written F. I. R. lodged by the accused-appellant herself which she has accepted at every stage. Its material contents are as follows :". . . . AAJ TARIKH 23/24-12-78 KI RAAT MEN LAGHBHAG PAUNE DO BAJE MERI SAAS SRIMATI SAROJ PATNI SHRI SUKHDEO SHARMA A. D. O. KRISHI MUJHE TATHA MERE DEVAR SANJEEV KUMAR KO JAGAKAR PESHAB KARNE KAMRE SE BAHAR LE GAYEE. HAMARI SAAS AAGE JA RAHI THIN TATHA HAM DONO PEECHHE THE, BARANDE MEN LAALTEN JAL RAHI THI. MAINEN DEKHA KI EK AADMI HAMARE GHAR KI PEECHHE KEE DEEWAR PAR THA. JAISE HI SAAS BARANDA PAAR KARKE ANGAN MEN PAHUNCHI US AADMI NE IN PAR GOLI CHALAYEE. HAM DONON PEECHHE HATKAR KAMRE MEN BHAGE AUR HAMARI SAAS BHI CHEEKH KAR BARANDE MEN BHAGI. USI SAMAY EK GOLI AUR MAARI AUR SAAS GIR PADI. MAINEN FAURAN KAMRE KEE KIWAD BAND KAR LI. HAMARI SAAS BARANDE MEN GIR PADI. MAINEN APNI BANDOOK SE KHIRKI PEGOLI CHALAYEEJISE SUNTE HI WAH AADMI PEECHHE KOODKAR BHAG GAYA. MAINEN APNI LICENCE KI BANDOOK SE KAYEE FAIAR KIYE. CHOR AUR GOLIYON KI AAWAJ SUNKAR COLONY KE LOG AA GAYE TATHA BARANDE MEN NIKAL KAR DEKHA TO HAMARI SAAS KHOON SE LATH-PATH PADI THIN. DEEWAR SE JIS AADMI NE GOLI CHALAYEE THI USE HAMNE DEKH LIYA THA. SAAMNE AANE PAR PAHCHAN SAKTE HAIN. THODI HI DER MEN POLICE BHI MAUKE PAR AA GAYEE THI. CHOR AUR GOLIYON KI AAWAJ SUNKAR COLONY KE LOG AA GAYE TATHA BARANDE MEN NIKAL KAR DEKHA TO HAMARI SAAS KHOON SE LATH-PATH PADI THIN. DEEWAR SE JIS AADMI NE GOLI CHALAYEE THI USE HAMNE DEKH LIYA THA. SAAMNE AANE PAR PAHCHAN SAKTE HAIN. THODI HI DER MEN POLICE BHI MAUKE PAR AA GAYEE THI. PATA CHALA KI SAAS MAR CHUKI THIN. " ( 22 ) IN her statement under Section 313, Cr. P. C. she stated in reply, to the question No. 5. "wah PESHAB KARNE UTHI THI. UNJONEN MUJHE WA MERE DEWAR SANJEEV KO UTHAYA THA. BADMAAS KI GOLI KHAKAR MARI. " ( 23 ) THE version given in the said F. I. R. is corroborated in many respects, firstly, about the number of fires. According to it, the assailant was seen firing two shots, one from the wall on which he was perched and another afterwards when the deceased cried and ran in the Verandah due to which fire she fell down. Then it is said that the accused-appellant fired a shot from her gun from the window and then she made several fires from the same gun. The evidence of the Investigating Officer is that the Head Mohirrir of the Police Station awakened him in the night between 23/24-12-78 at his quarter in the Police Station and said that sufficient firing was taking place from the side of the Block, whereupon he made departure from the police station along with force and the weapons and reached the spot and found the deceased there lying in the Verandah of the quarter. The evidence of Om Prakash (P. W. 2), who was living at a distance of 200 yards from the house of Sukhdeo Sharma, A. D. O. where the occurrence took place, is that he had not seen anybody i. e. any assailant in the night of occurrence though on hearing the hue and cry he and Shankar Lal went to the house of the A. D. O. and saw the dead body of the deceased there, where the other persons of the block and police came. His statement that he had not heard the sound of any shot has to be rejected outright in view of the evidence of the Investigating Officer itself. His statement that he had not heard the sound of any shot has to be rejected outright in view of the evidence of the Investigating Officer itself. ( 24 ) RAM Kumar (P. W. 9) Chowkidar of the Block, Shamahabad, claimed that he did not hear any sound of fire of any kind, nor saw any bad character running in the night of occurrence and that it was Shankar Lal who told him that the wife of the A. D. O. had died and then he went there. He further stated that the distance of the quarter of the A. D. O. from the godown is about 400-500 metres. So it cannot be doubted that when the sound of so many fires could sufficiently be heard even at the police station which was at a distance of 1 1/3 furlong from the police station as recorded in the chik report. He also would have heard the sound of the shots. Being the chowkidar of the Block, it would have been his bounden duty to rush to the spot and challenge the assailants as soon as he had heard the sound of firing and so obviously to avoid his responsibility he had pleaded that he did not hear the sound of any shot and consequently his statement that he did not see any bad character running does not and cannot throw any doubt over the story set out by the accused-appellant in her F. I. R. It is equally likely that this Chowkidar of the Block was sleeping at the time of his duty or was away from his place of duty. ( 25 ) THERE is the evidence of Shankar Lal (DW 1) that from the side of defence in the night of occurrence he heard sound of 5-6- fires, whereupon he opened the back window of his quarter and saw that the bad characters ran away from the side of the house of the A. D. O. and went away through the road and then he opened the door of his quarter and awakened Om prakash and that then both of them went to the house of the A. D. O. Sukhdeo Sharma and found that the dead body of the deceased was lying as somebody had run away after firing. He further stated that he and Om Prakash both came back to the godown and awakened Ram Kumar, Chowkidar and again went to the quarter where they found people of the Block collected and further that Smt. Kamlesh and Sanjeev Kumar told him, "boundary KEE DEEWAR PAR EK BADMASH BAITHA THA. WAH GOLI MAAR KAR BHAG GAYA". In his cross-examination he stated that he was interrogated by the Investigating Officer also. It is therefore immaterial that he was called upon by the A. D. O. to give evidence. It is material here that the name of this DW Shankar Lal has come even in the evidence of Om Prakash (P. W. 3) that he and Shankar Lal went to the house of Sukhdeo Sharma and further Ram Kumar Chowkidar of the Block (P. W. 9) had testified that Shankar Lal came to him and told him that the wife of the A. D. O. had died. Thus he is not a stranger who has been introduced by the defence in the story. He was himself a Kaamdar employed in Shamshabad Block and was living in his quarter on his own saying, which must have been in the Block campus itself. His testimony lends credence to the story set up in the F. I. R. of running of several bad characters from the house of the A. D. O. in the night where the occurrence took place. In the F. I. R. of the accused-appellant there is a mention of the presence of only one culprit having been seen firing by her. But this does not rule out the presence of other associates of that bad character outside the house. The fact that the accused-appellant fired several shots from the window is corroborated by the presence of marks of pallets on the boundary wall in the site plan prepared by the Investigating Officer. ( 26 ) IN the written F. I. R. of the accused-appellant it is set out that the bad character fired two shots, one when he was perched on the back wall of the house and another in respect of which his location is not disclosed in the F. I. R. She also states in the written F. I. R. that she fired several shots but no shot hit the deceased. I have noted her statement under Section 313, Cr. I have noted her statement under Section 313, Cr. P. C. which is to the effect that the deceased died by the injuries caused by firstly bad character. ( 27 ) IT is correct that the post-mortem of the deceased indicated on entry wound and on exit wound and does not indicate downward movement of the shot from the entry wound towards the exit wound. But that itself does not necessarily rely the story as set out by the accused-appellant in her F. I. R. or in her statement under Section 311, Cr. P. C. As noted earlier, the situation with bad character while firing the second shot is not clear in the F. I. R. The contents of the F. I. R. are consistent with the second fire having been made by the bad character from inside the verandah i. e. from ground level. So the death of the deceased could have been caused by a shot fired by the bad character. It does not follow from the fact that the accused-appellant admits having fired shots from the licensed weapon that it was one of those fires which struck the body of the deceased and caused her death. In any case, the accused-appellant has to be given the benefit of doubt in this regard. One circumstance in her favour is that she did not try to abscond from the scene of occurrence. Another is that she had taken her version at the earlier opportunity and gave her F. I. R. in her own handwriting the same night to the I. O. who reached the spot soon after the occurrence and stuck to the version taken therein all along. So, this appeal has to be allowed. ( 28 ) THE appeal is allowed. The conviction and sentence of the accused-appellant Smt. Kamlesh under Section 304-A, I. P. C. is set aside and she is acquitted of the same. She is on bail from this Court, she need not surrender. Her bail bonds are cancelled and sureties are discharged. ( 29 ) LET a copy of this judgment be certified to the learned Sessions Judge concerned within fifteen days from today for information and compliance. The compliance report shall be submitted by the learned Sessions Judge concerned to this Court within a month from today. Appeal allowed. .