JUDGMENT : R.K. Patra, Adv. 1. The Appellant has been convicted u/s 302, I.P. C. and Section 27 of the Arms Act, 1959 and respectively sentenced imprisonment for life and imprisonment for one year. The sentences are to run concurrently. 2. The case of the prosecution is that the Appellant is the paternal uncle of Kila Majhi Padra (hereinafter referred to as 'the deceased'). On 17-8-1991, the deceased along with Gadasa (p. w. 2), Kalesa and Pasunga had been to Buren forest to cut bamboos. At about 4 p. m. they felt thirsty. The deceased and p. w. while going to nearby Akaiju Nala to take water, the Appellant fired a gun shot at the deceased in consequence of which he fell down with bleeding injuries. P. w.2 challenged the Appellant as to why he shot at the deceased. The Appellant pleaded that he did so thinking the deceased to be a tiger. p, w. 2 immediately raised hullah which drew the attention of Kalesa and Pasunga who arrived at the spot and all of them took the deceased to a nearby hut. Kalesa rushed to the village to inform about the incident. Some villagers and relations of the deceased came rushing to the hut. The deceased stated before them that he was shot at by the Appellant and he would not survive. He was removed to the village where he succumbed to the injuries at about 7 p. m. On the next day, p. w. 1 (brother of the deceased) lodged F.I. R. on the basis of which investigation was taken up and the Appellant was placed on trial leading to his conviction as aforesaid. 3. The Appellant in his statement recorded u/s 313, Cr. P.C., denied his complicity. His plea was that the case was falsely foisted against him. 4. The prosecution examined seven witnesses to prove the charge against the Appellant. P. w. 2 was the eye witness. P. ws.1,2 and 3 were examined to prove the dying declaration made by the deceased. P. w. 7 was the doctor who conducted post-mortem examination on the dead-body of the deceased. 5. There is no dispute that the deceased had a homicidal death. P. w. 2 was the eye witness. P. ws.1,2 and 3 were examined to prove the dying declaration made by the deceased. P. w. 7 was the doctor who conducted post-mortem examination on the dead-body of the deceased. 5. There is no dispute that the deceased had a homicidal death. The doctor (p. w. 7) found the following external injuries on the body of the deceased: (I) One entry wound of pellet over anterior part of the upper arm (left); (II) One exit wound on the back of the upper arm (left) opposite to the injury No. I; and (III) One entry wound of pellet in the chest below right clavicle in between 1st and 2nd rib 11/2" below of its middle point. On dissection of injury No. I he found that the pellet had passed through the muscles causing contusion. On dissection of injury No. II he noticed that the pellet penetrated about 3" into the lung tissues and had caused contusion and laceration of the lung tissues. According to him, the cause of death was due to haemorrhage of the injury. On the basis of the aforesaid evidence, we have no hesitation to hold that the deceased died due to gun shot injuries. 6. The next crucial question is who fired at the aeceased ? P. w. 2 who had accompanied the deceased to the forest stated that in course of cutting bamboos, he himself and the deceased felt thirsty and accordingly went towards Akaiju Nala to drink water. The deceased was going ahead of him. The Appellant fired the gun shot at the deceased near the 'Nala'. As a result the pellets pierced though his arm and right chest below the collar bone. The deceased sustained bleeding injuries and fell down. P. w. 2 called Kalesa and Pasunga who had also gone with them to the forest to cut bamboos at the top of his voice. Hearing the shout they arrived at the spot. The deceased was removed to a hut near the place of occurrence. Kalesa went to their village Hatimunda and informed about the incident to the relatives of the deceased who reached the spot. On their arrival, the deceased disclosed before all of them that the Appellant fired the gun shot at him. Hearing the shout they arrived at the spot. The deceased was removed to a hut near the place of occurrence. Kalesa went to their village Hatimunda and informed about the incident to the relatives of the deceased who reached the spot. On their arrival, the deceased disclosed before all of them that the Appellant fired the gun shot at him. P. w. 1, brother of the deceased, deposed that when he was in his house, he was informed that the Appellant find the gun shot at the deceased. On hearing such news he along with the Grama Rakhi, wife of the deceased and Ors. went Barun to jungle and saw that the deceased had been rested in a hut and he was struggling for life. On seeing them he disclosed that the Appellant fired the gun shot at him and requested them to remove him to his house. P. w. 3 was the Naib Sarpanch. He stated that p. w. 1 informed him that the deceased received gun shot injury being fired by the Appellant. So, he (p. w. 3), p. w. 1. wife of the deceased and Ors. rushed to Barun Forest and found the deceased lying inside the hut having sustained injuries. When he enquired from the deceased regarding the incident, he stated that the Appellant fired the gun shot at him. P. ws. 1. and 3 were cross-examined but nothing substantial was brought out in their evidence to discredit their testimony. On careful consideration of their evidence, we are of the opinion that it was the Appellant who fired at the deceased by the gun who sustained injuries and succumbed to them. 7. What offence did the Appellant commit ? Shri Pradhan contended that the Appellant in a moment of delusion fired at the deceased believing "him" to be a tiger and it being a mistake of fact, his action is protected u/s 79, I.P.C.. In support of the aforesaid, he placed reliance on a Division Bench decision of Nagpur High Court in Chirangi v. State. AIR 1952 Nag 282 and a Division Bench decision of this Court in State of Orissa Vs. Khora Ghasi. Learned Counsel submitted that had it not been a mistake of fact, the Appellant being the paternal uncle would not have shot at his own nephew.In Chirangi's case (supra) the accused killed his own son believing him to be tiger. AIR 1952 Nag 282 and a Division Bench decision of this Court in State of Orissa Vs. Khora Ghasi. Learned Counsel submitted that had it not been a mistake of fact, the Appellant being the paternal uncle would not have shot at his own nephew.In Chirangi's case (supra) the accused killed his own son believing him to be tiger. To a question put by his nephew, the accused replied that he had become insane and killed his son. When it occurred to him that a tiger had come he dealt blows with the axe. It was in the evidence that their relation was cordial and the deceased was very considerate to his accused father. In the circumstances, the Nagpur High Court held that all that happened was that the Appellant in a moment of delusion considered that his target was tiger and accordingly assaulted him with his axe. In Khora Ghasi's case (supra) this Court found that the place of occurrence was surrounded by forests on all sides and bears and boars were in abundance in the locality. The maize plants on the field of the accused were about four feet high and the deceased had a black blanket on his body when he had gone inside the maize field. There was no enemity or ill-feeling between the accused and the deceased. It was a dark drizzling night. In this background, this Court accepted the plea of the accused that he shot arrow at the deceased thinking that he was shooting a bear which had strayed into his maize field. Learned Additional Government Advocate on the other hand submitted that the bona fide of the Appellant was very much doubtful inasmuch as the occurrence took place at about 4 p. m. and there was adequate light and in view of the evidence of the doctor (p. w. 7) that the pellets were fired from a distance of 6 meters, there could be no mistaken identity. He further submitted that there was dispute between the Appellant and the deceased over the property and in the circumstances the plea taken on behalf of the Appellant has to be accepted with a pinch of salt. 8. Section 79. He further submitted that there was dispute between the Appellant and the deceased over the property and in the circumstances the plea taken on behalf of the Appellant has to be accepted with a pinch of salt. 8. Section 79. I.P.C. lays down that nothing is an offence which is done by a person who is justified by law, or who by reason of mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. As has been held by the Supreme Court in State of Orissa Vs. Bhagaban Barik, u/s 79, I.P. C. although an act may not be justified by law yet if it is done under mistake of fact under the belief in good faith that it is justified by law, it will not be an offence. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. "Good faith" requires not logical Infallibility but due care and attention. The question of good faith is always a question of fact to be determined on the basis of proved facts and circumstances of each case. 9. Keeping the aforesaid law laid down by the Supreme Court in view, let us find out if the Appellant under a bona fide mistake shot at the deceased thinking him to be a tiger. We have earlier found that p. w. 2 and the deceased were going to the Nala to drink water. P. w. 2 was following the deceased and at that time the Appellant fired the gun shot at the deceased. P.w. 2 deposed that when he abused the Appellant as to why he fired gun shot at the deceased, he replied that he did so thinking the deceased to be a tiger. The witness further stated that at the time the deceased received gun shot injury, he had covered himself with a towel (having black stripes) and a napkin. It may be noted that p. w. 2 in his evidence did not say at what time the incident took place. In the F.I. R. lodged by p. w. 1 on the next day, he, however, mentioned the time to be 4 p. m.. It may be noted that p. w. 2 in his evidence did not say at what time the incident took place. In the F.I. R. lodged by p. w. 1 on the next day, he, however, mentioned the time to be 4 p. m.. It would appear from the evidence of the informant (p. w. 1) that he got the F.I. R. scribed through one Ramakanta and he made it over to the Officer-in-charge of Bamunigam P.S.. The F.I. R. has been marked as Ext. 10. The scribe Ramakanta had not been examined. P. w. 1 belongs to a tribe whose language is Kui. In fact he spoke in that language in court which was interpreted into Oriya by an office peon. It is not known in what circumstances Ramakanta scribed the F.I. R.. It was written in Oriya. Ramakanta must have scribed it after p. w. 1 stated about the incident in his Kui Janguage. It is wel1 known that people belonging to p. w. l's community have no sense of timing. There- fore, the time of 4 p. m. as mentioned in the F.I. R. cannot be said to have been accurately noted. A close scrutiny of the F.I R. would indicate that the informant put his L.T. I. (Left Hand thumb impression) and below it the date was mentioned as 18-2-1991. The scribe Ramakanta had also put the date which has been overwritten from 17-2-1991 to 18-2-1991. The F.I. R. was received at the P.S. on the same day at about 10.40 a. m.. From column 3 of the F.I. R. it appears that village Hatimunda as well as Akaiju jungle Nala is at a distance of 30 K. Ms. from the P.S.. It is not clear from the evidence as to when did he cover the entire distance of 30 K. Ms. and reached at the P.S. at 10. 40 a. m. on 18-2-1991. In the aforesaid circumstances, the timing of the occurrence as 4 p m. mentioned in the F.I.R. seems to be doubtful. There is nothing on record to show that the deceased was in the "visible range" of the Appellant, Neither did the investigating officer (p. w. 5) direct the investigation to know as to the exact time of the occurrence nor did he try to find out the distance from which the deceased was fired at. There is nothing on record to show that the deceased was in the "visible range" of the Appellant, Neither did the investigating officer (p. w. 5) direct the investigation to know as to the exact time of the occurrence nor did he try to find out the distance from which the deceased was fired at. He deposed that a small stream was flowing in ravine in between the place where the gun shot was fired and the place the deceased received the gun shot injury. The statement of the doctor (p. w.7) that the pellets were most likely fired from a distance of 6 meters cannot be accepted on its face value. In the cross-examination, he admitted that he had not undergone any special training in ballistic science and he opined regarding the distance on the basis of location of the two entry wounds and the margin abrasions in the entry wounds. He has also net stated so with reference to the seized gun M.O. XI. At page 262 of Modi's Medical Jurisprudence and Toxicology (21st En.), the author has noted that the injuries produced by the projectiles discharged from firearms may present the characteristics of lacerated wounds, but their appearances vary according to the nature of the projectile, the velocity at which it was travelling at the moment of impact, the distance of the firearm from the body at the moment of discharge and the angle at which it struck the put of the body and the part of the body struck. At page 268, he has further observed that if a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. Blackening is found if a firearm like shotgun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet. At page 269 Modi after partly closing the discussion observed as follows: In conclusion it must be noted that a definite opinion about the distance from which a firearm was discharged should be given with caution. According to Taylor no general rule can be laid down. At page 269 Modi after partly closing the discussion observed as follows: In conclusion it must be noted that a definite opinion about the distance from which a firearm was discharged should be given with caution. According to Taylor no general rule can be laid down. Firing experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used. Fresh denied, shaved pig skin from a slaughter house is recommended for a firing experiment. S.S. Krishnan had described a neutron activation analysis method for determining distance by quantitative estimating concentration pattern of small amount of antimony (a constituent of the bullet) deposited around bullet holes. (emphasis added). In view of the aforesaid, the bald statement of the doctor that the deceased was most probably fired at from a distance of 6 metres cannot be accepted in absence of other physical aspects of firearm injuries. 10. At this stage let us also find out if there was any strained relationship between the Appellant and the deceased. Admittedly, the deceased was the nephew of the Appellant being the son of his brother. P. w. 1 (brother of the deceased) has not stated about existence of any illfeeling between the Appellant and the deceased. P. w. 2. a neighbour of the Appellant and the deceased, deposed that he had no knowledge about 'Gandagol' (dispute) existing between them. P. w. 3, the Naib Sarpanch, stated that there was land dispute between the Appellant and the father of the deceased over partition of the joint family property. In the cross- examination, he admitted that about 5 years back a village meeting was held to settle the dispute between them and thereafter there was no dispute. This indicates that the relationship between the Appellant and the deceased was good and cordial and therefore no intention or motive could be attributed to the Appellant for having fired at the deceased with the gun. By taking all the aforesaid circumstances into consideration, we are inclined to held that the utterances of the Appellant before p. w. 2 that he fired at the deceased thinking 'him' to be a tiger cannot be lightly brushed aside. In other words, the Appellant under mistake of fact in good faith shot at the deceased thinking the 'object' to be a tiger. His act is, therefore, a 'non-offence' well protected u/s 79, I.P. C.. In other words, the Appellant under mistake of fact in good faith shot at the deceased thinking the 'object' to be a tiger. His act is, therefore, a 'non-offence' well protected u/s 79, I.P. C.. 11. In the result, the conviction and sentence imposed on the Appellant cannot be sustained in law and are hereby set aside. The appeal is allowed and the Appellant is acquitted of the charges. He may be set at liberty forthwith if his detention is not required in connection with any other case. P.K. Patra, J. 12. I agree. Appeal allowed. Final Result : Allowed