JUDGMENT Justice R.B. Misra,J(oral). The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 09.11.2006, passed by the Learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No.16-P/VII/2006, Sessions Trial No.35 of 2006, acquitting the alleged accused/respondent under Section 304 of the Indian Penal Code and Section 27 of the Arms Act, 1959, in reference to FIR No.138 dated 7.11.2005. 2. The prosecution story, in brief, is that on 7.11.2005, a Rapat Roznamcha / (Ex.PW.10/A) was recorded on the basis of telephonic information received at about 8.45 AM from Sh.Shashi Kapoor of village Barota, to the effect that accused had killed a lady by a gun shot. Accordingly, SI Desh Raj / (PW.10) proceeded to the spot and recorded the statement / (Ex.PW.2/A) of Sh.Rosu Ram, indicating that accused is his nephew and had been residing separately from the informant. On 7.11.2005, at about 8.30 AM while the informant was sitting in his house, accused came running from the side of his house and on asking, he told that his gun shot had hit a lady and resultantly she died. Accused further told that he had gone for hunting and now he is going to the Police Station. Thereafter, cries and weeping were heard from the side of the house of the accused. Smt.Brahmi Devi, the mother of the accused, came to the spot by the side of “Khuddi-Ka-Kholu” and Pradhan etc. had also reached there. FIR (Ex.PW.8/A) was registered. PW.10 investigated the case and dead body of the victim-deceased was sent to Civil Hospital, Hamirpur for postmortem, which was conducted by Dr.Veena Sharma / (PW.1) and Dr.Jaidesh Rana, the report thereof is Ex.PW.1/C. The doctor has opined that the victim had died due to injury on vital organ (brain). After investigation, the accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution examined as many as 13 prosecution witnesses. Whereas, the accused / respondent through his statement under Section 313 of Cr.P.C. has admitted the factum of death of victim / Bimla Devi by his gun shot. The accused has further stated that it was a case of pure accident. 3. In order to prove its case, the prosecution examined as many as 13 prosecution witnesses. Whereas, the accused / respondent through his statement under Section 313 of Cr.P.C. has admitted the factum of death of victim / Bimla Devi by his gun shot. The accused has further stated that it was a case of pure accident. The defence taken by the accused is that there were wild animals in the jungle, adjacent to Kharaitar and he had gone for hunting. At that time, it was a dawn and the visibility was very poor and he thought the object to be a wild animal as the object was covered by a grass of sufficient height and on firing by mistake, the gun shot hit the victim who succumbed to the gun shot injuries. 4. During investigation, sickle Ex.P6, wad Ex.P7, pellets Ex.P8 and Ex.P9, gun cap Ex.P10, gun powder Ex.P11 and dress articles Ex.P12 to P14 vide memos Ex.PW.3/A and Ex.PW.3/C were recovered. 5. Dr.Veena Sharma / (PW.1) had noticed the following injuries on the person of the victim-deceased:- 1. There was wound over left temporo parietal region measuring 8 mm x 8 mm in size. The underlying skull showed the hole of same size with fracture extending latterly. On dissection of skull, underlying brain tissue was found lacerated up to 3 and half cm deep and there was collection of blood. On examination, a pellet was found embedded in lacerated brain tissue. 2. There was wound over left shoulder approximately 5 mm in size round the shape with collection of haemotoma. 3. There was wound over left side middle of neck approximately 7 mm in size, round in shape with surrounding blackening on dissection of wound, underlying tissue was found lacerated and pellet was found embedded. 4. There was wound over left deltoid region, approximately 4 mm in size, round in shape. 5. There was wound of size of 3 mm just above left elbow on left lateral side. 6. Another wound present over back, approximately 4 mm in size, just lateral to anterior superior iliac spine, round. 7. Another wound present over mid thigh on lateral aspect approximately 4 mm in size, round in shape. 8. There was another wound present over knee on lateral aspect of 3 mm in size, round in shape. 9. 6. Another wound present over back, approximately 4 mm in size, just lateral to anterior superior iliac spine, round. 7. Another wound present over mid thigh on lateral aspect approximately 4 mm in size, round in shape. 8. There was another wound present over knee on lateral aspect of 3 mm in size, round in shape. 9. There was wound present in left axillary region on lateral aspect of size 3 mm. In the opinion of the medical officers, given in the postmortem examination report Ex.PW.1/C, the death of Binta Devi has taken place due to injury to the vital organ caused by gun shot. 6. Sh.Rosu / (PW.2), resident of the same village had stated that accused is his nephew and the victim/deceased /(Binta Devi) was wife of younger brother of the accused. The accused and his younger brother had been residing separately. PW.2 has further stated that the accused was earlier serving in the Army. In support of the prosecution case, PW.2 has stated that on 7.11.2005, at about 8.30 AM, when he was present at his house, accused was running towards Jaisinghpur side, just below his house on the path. On asking, as to why he was running, accused replied that he had gone for hunting at a place known as “Khuddi-Ka-Kholu”, where he fired a gun shot for hunting which hit Binta Devi and she had died. The accused was wearing a shirt and Pant at that time. Earlier also he had been going for hunting wearing his army dress. After sometime, when mother of the accused also went towards “Khuddi-Ka-Kholu” she started weeping. PW.2 also went to the spot of incident, where Binta Devi was lying having injury on her head, caused with a gun fire. So the Pradhan on being informed on telephone came to the spot, one Mr.Shashi telephoned the police, who came to the spot at about 10.00 AM and recorded the statement of Roshu /(PW.2). In cross-examination, PW.2 has stated that “Khuddi-Ka-Kholu” is a Kharaiter (grassy land) and there is a jungle adjoining the same, and at that time the grass was about 3-4 feet high in the said Kharaiter. PW.2 has further stated that it was winter time when the incident took place, however, PW.2 has denied that there was fog in the area at that time. PW.2 has further stated that it was winter time when the incident took place, however, PW.2 has denied that there was fog in the area at that time. PW.2 has admitted that in that area the Sun rises over a hillock and it first sun-shines the sky. PW.2 has denied that at that time there was not adequate sun-light on the ground. PW.2 has also stated that when the sun shines, over the ground, the wild animals and birds come out from their hideouts for grazing. PW.2 has further stated that the accused had fired the gun shot from a distance of 50-60 meters. 7. Sh.Mangat Ram / (PW.3)/Pradhan of gram Panchayat Tambar, in support of the prosecution case has stated that one Shashi Kumar rang him up at his house informing that accused had killed Binta Devi, accordingly he came to the spot and noticed the victim lying down with injuries on her head. One sickle and a bundle of grass was lying on the spot. Blood was also present on the ground. The police came on the spot at about 10.00 AM and took into possession the blood stained earth and sealed the same in a parcel. Sickle was also taken into possession from the spot. Nothing adverse has emanated from the testimony of PW.3 made in cross-examination. 8. Sh.Prithi Singh / (PW.4), in support of the prosecution case, has stated that on 7.11.2005, at about 6.45 AM, while he was sleeping in his house, his wife had left the house to bring grass from “Khuddi-Ka-Kholu”, where she has been cutting the grass for the last about 10-12 days. After cutting the grass, she used to return to his shop about 9.00 AM, and goes to a Beauty Parlour adjacent to his shop. On the fateful day, when he reached near his shop at about 8.45 AM, Pradhan Mangat Ram met PW.4 there and told him to return back to his house by telling him that the accused had created some trouble. On return, Mohinder Singh met him on way and disclosed that accused had shot dead his wife at “Khuddi-Ka-Kholu”. PW.4 went to the spot and observed the dead body of his wife lying there having injuries on left arm and head. Then he returned to his house to take care of his small children. On return, Mohinder Singh met him on way and disclosed that accused had shot dead his wife at “Khuddi-Ka-Kholu”. PW.4 went to the spot and observed the dead body of his wife lying there having injuries on left arm and head. Then he returned to his house to take care of his small children. PW.4 was apprised of by PW-2 / (Rosu) stating that the accused had killed his wife. The accused had earlier been threatening all the villagers with his gun to kill them on trivial matters. PW.4 has further stated that he was aware that his wife was cutting grass over there and she had been doing the same for the last 10-12 days. In cross-examination, PW.4 has reiterated his version made in examination-in-chief. 9. Sh.Ramesh Chand / (PW.5), father of the victim, has stated that victim used to tell him that the accused had been threatening her, because he had an evil eye on her. PW.5, in support of the prosecution case, has further stated that he came to the village of the accused, where he noticed the presence of police. The body of Binta Devi was lying over there. She was having injury on head and arm. Nothing adverse has been emanating from the testimony of PW.5 made in cross-examination. 10. Smt.Rani Devi / (PW.6), mother of the victim-deceased has stated that the victim had informed that accused had been threatening her because he had an evil eye on her, however, such aspect was not narrated to her husband as to avoid a rift between the two brothers. Nothing adverse has also been emanating from her statement made in cross-examination. 11. Sh.Onkar Singh / (PW.7), in support of the prosecution case, has stated that the victim-deceased was the daughter of his sister. On 7.11.2005, his nephew Des Raj telephoned him that accused has shot Binta Devi. Accordingly, PW.7 went to the village of Prithi Singh and noticed victim-deceased lying there in an injured condition. ASI Kamaldeep / (PW.8) and Sh.Kushal Singh / (PW.9) are the formal witnesses. 12. SI Des Raj / (PW.10), has investigated the case and recovered the articles related to occurrence. In cross-examination, PW.10 has stated that on 7.11.2005, Rosu Ram / (PW.2) disclosed PW.10 that accused had fired the gun shot in that direction, considering that there was a wild animal on the spot. 12. SI Des Raj / (PW.10), has investigated the case and recovered the articles related to occurrence. In cross-examination, PW.10 has stated that on 7.11.2005, Rosu Ram / (PW.2) disclosed PW.10 that accused had fired the gun shot in that direction, considering that there was a wild animal on the spot. PW.10 has further stated in cross-examination that on 7.11.2005 Sh.Onkar Singh / (PW.7) was also present on the spot, however, he did not disclose to him about the case. PW.10 has further stated that distance between the accused and the object, where the bullet had hit, was 50 meters. However, nothing could come to the knowledge of PW.10 that farmers in the area were worried about wild animals. PW.10, however, also stated in cross-examination that there is a jungle adjacent to the Kharaiter and there may be wild animals in the jungle, however, denied that there was news item appearing in the Tribune that people were protesting to the Government about menace posed by the wild animals in that area. PW.10 has also denied that due to the said reason the police has recommended to the Government that Ex. Serviceman should be armed with weapon to deal with the situation. PW.10 has further stated that he has never recommended any such case to the Government, however, PW.10 has stated that the accused has acquired the gun in such process of protest of village that wild animals may come from the jungle. 13. Sh.Karam Chand / (PW.11) took the photographs. PW.12 HC Jagdish Chand and HHC Om Prakash have endeavoured to support the prosecution case to the extent role assigned to them in their official capacity. 14. On analysis of the prosecution witnesses and materials on record, we find that nothing has been brought by the defence or otherwise has been emanating from the record that usually in that area wild animals were coming and the accused-respondent was in a habit of hunting. Nothing has been brought on record that how many times the accused-respondent had gone for hunting and how many times the wild animals attacked and destroyed the crops of the villagers. It has also not been brought on record that how many times the wild animals had attacked to the localities. Nothing has been brought on record that how many times the accused-respondent had gone for hunting and how many times the wild animals attacked and destroyed the crops of the villagers. It has also not been brought on record that how many times the wild animals had attacked to the localities. For argument sake had any wild animal come, then normal prudent man could have at least pelted stones or shall make an attempt to oust somehow that animal hiding under the grass, whereas in view of the testimony of PW.4 that the victim-deceased had been cutting grass for about 10-12 days prior to the incident, unlike a prudent person accused did not bother to know even as to whether a wild animal was really hiding there and had fired by a gun shot. The conduct of the accused-respondent was unusual and full of negligence. The accused-respondent was supposed to take normal precaution before making a fire and, more so, when his suspicion went wrong and no wild animal was killed rather the victim i.e. wife of his younger brother was killed. Nothing has been proved that he was having an evil eye on the victim-deceased and nothing has been proved that he had intentionally fired towards the area where the victim was cutting the grass. In our considered view the prosecution has proved its case successfully regarding negligence against the accused and in place of offence of Section 304 of IPC, the accused-respondent in facts and circumstances is held guilty of offence punishable under Section 304-A of IPC. The judgment dated 09.11.2006 of learned Sessions Judge is not legally sustainable, as such, the same is set aside but the respondent-accused is not found guilty of offence under Section 27 of the Arms Act, 1959 as he was carrying and had used licenced gun, as such, the acquittal of accused-respondent by the learned Sessions Judge is not interfered with. The convict-respondent however shall be heard on quantum of sentence on 19th September, 2012. Learned counsel appearing on behalf of the convict-respondent, undertakes to produce the convict by the next date of hearing.