JUDGMENT : Pankaj Bhandari, J. 1. The appellant – State of Rajasthan has preferred the instant Criminal Appeal aggrieved by the judgment and order dated 16.05.1998 passed by the learned Additional District & Sessions Judge, Chabra (Baran) whereby accused respondent has been acquitted for the offence under Sections 302 and 336 of the Indian Penal Code (hereinafter referred to as “the IPC”). 2. Succinctly stated the facts of the case are that Kunji Lal along with his brother – Ram Singh and injured Parmanand gave an oral report at Police Station, Cheepa Barod, District Baran on 27.11.1995 at about 11:00 pm and stated that at about 8:00 pm, he heard noise of hue and cry at the side of house of Bihari Lal. The said voice was of Bihari’s wife, who was crying as ‘set the fire – set the fire’. When he came out, then he saw that smoke was coming out from the house of Bihari Lal. It was also mentioned that he along with his wife – Mooli Bai and sister-in-law – Murti Bai called for bringing water. He and Gajanand climbed up the house and also poured water over the fire. His younger brother - Ram Dayal also came there and Bihari Lal also came there from the side of Tapari of Bhillon along with gun in his hand. Bihari abused Ram Dayal and also fired the gun on Ram Dayal. Ram Dayal fell down on the way whereas, all other persons hide in the house due to fear of fire from the gun. 3. It was stated in the report that he had seen the said incident and also saw Bihari Lal beating Ram Dayal from the wooden side of the gun and after death of Ram Dayal, he ran away from the site. It was also stated to the police that when he was on the way to the Police Station, he met Parmanand (PW-3), who also received pellet wound on his leg. On the basis of the oral statement of Kunji Lal, an FIR was chalked out and a case was registered bearing FIR No.48/1995 for the offence under Sections 302 and 307 of IPC. After due investigation, police submitted charge-sheet against the accused respondent for the offence under Sections 302, 324 of IPC and Section 27 of the Arms Act. On the basis of the oral statement of Kunji Lal, an FIR was chalked out and a case was registered bearing FIR No.48/1995 for the offence under Sections 302 and 307 of IPC. After due investigation, police submitted charge-sheet against the accused respondent for the offence under Sections 302, 324 of IPC and Section 27 of the Arms Act. The learned Trial Court framed charges against the accused respondent under Sections 302 and 336 of IPC. Accused denied the charges and sought trial, upon which, 22 witnesses were examined and 21 documents were also exhibited on behalf of the prosecution. Explanation of the accused respondent was recorded under Section 313 Cr.P.C. In defence, 1 witness was produced as DW-1 – Jhamku Bai, wife of the accused respondent and 8 documents were also exhibited. The learned Trial Court after hearing the counsel for the parties have acquitted the accused respondent for the offence under Sections 302 and 336 of IPC, aggrieved by which, the appellant – State has preferred the present appeal before this Court. 4. It is contended by the learned Additional Government Advocate appearing for the appellant – State that there is evidence of Kunji Lal (PW-1), Murti Bai (PW-2) and Parmanand (PW-3) that accused respondent opened the fire. The deceased had sustained gun-shot injuries caused by firearm. It is also contended that the villagers make pellets from stone pieces and 8 stone pieces were recovered from the body of the deceased. It is argued that gun was seized at the instance of the accused respondent and the same was found to be serviceable. The Armorer has reported that stone pieces, which were recovered from the body of the deceased, could have been fired from the gun, which was recovered at the instance of the accused respondent. He has, therefore, prayed that the present appeal may be allowed and the accused respondent may be convicted for the charges levelled against him. 5. On the other hand, learned counsel appearing on behalf of the accused respondent has opposed the appeal. It is argued that the learned Trial Court has rightly appreciated the evidence. The deceased had sustained two incised wounds on his head, which were caused by sharp weapon. No explanation has come forth as to who had caused the injury on the head of the deceased. It is argued that the learned Trial Court has rightly appreciated the evidence. The deceased had sustained two incised wounds on his head, which were caused by sharp weapon. No explanation has come forth as to who had caused the injury on the head of the deceased. It is also argued that the deceased died due to head injury and the head injury was caused by sharp weapon, as it is an incised wound. It is further argued that the respondent accused was charged for the offence under Sections 302 and 336 of IPC. The offence under Section 302 of IPC is not made out as the accused was armed with a gun having stone pellets. It is contended that the injuries caused by the firearm were all simple in nature and at most, the accused can be held guilty for the offence under Section 336 of IPC. Learned counsel for the accused respondent has drawn our attention to the evidence of Dr. Kailash Vijay (PW-21). He has, thus, prayed that the appeal of the appellant-State may be dismissed. 6. We have considered the submissions made by the learned counsel for the parties and have carefully gone through the material on record. 7. It is pertinent to note that one of the charges, which was read over to the accused was that on 27.11.1995 at 8:00 pm, he fired with his licensed gun and murdered the deceased. The other charge, which was read over to the accused, was that he opened fired rashly and negligently in a manner that one of the pellets caused injury to Parmanand (PW-3). Thus, he committed an offence under Section 336 of IPC. 8. We have to ascertain as to whether the deceased – Ram Dayal died due to gun-shot injury. Dr. Kailash Vijay (PW-21), who had conducted the postmortem, has admitted that the deceased had two incised wounds i.e. injury Nos.1 and 2. He has also clearly stated that both these injuries are not caused by gun-shot. He has further admitted that in the postmortem report, the cause of death is mentioned as injury Nos.1 and 2. With regard to injury Nos.3 to 8, he has stated that these injuries are superficial injuries. It is further stated that these superficial injuries are simple injuries and that he has not mentioned in his report that injury Nos.3 to 8 are grievous in nature. With regard to injury Nos.3 to 8, he has stated that these injuries are superficial injuries. It is further stated that these superficial injuries are simple injuries and that he has not mentioned in his report that injury Nos.3 to 8 are grievous in nature. Thus, this witness has clearly mentioned that injury Nos.1 and 2, which is the cause of death of Ram Dayal, were not caused by gun-shot. As to who caused injury Nos.1 and 2 is not revealed from the evidence that has been adduced. Both these injuries are caused by sharp weapon. The accused respondent is said to be armed with gun, meaning thereby that, injury Nos.1 and 2 were not caused by accused respondent. Injury Nos.3 to 8, which are gun-shot, are said to be superficial injuries and Dr. Kailash Vijay (PW-21) has clearly mentioned that these superficial injuries were simple in nature. The charge in the charge-sheet against the accused that he had caused death of Ram Dayal by gun-shot injuries, is not made out as Dr. Kailash Vijay (PW-21) has clearly admitted that injury Nos.1 and 2 were caused by sharp weapon and were not caused by gun-shot. It is also evident that no sharp weapon has been recovered from the respondent accused. The charge of Section 302 of IPC is, thus, not made out against the accused respondent. Thus, in our considered view, the learned trial Court has not committed any error in acquitting the accused respondent for offence under Section 302 of IPC. 9. As far as offence under Section 336 of IPC is concerned, the allegation against the accused is that when he fired negligently, by which, one pellet injury was caused to Parmanand (PW-3) on his leg. In this regard, Parmanand (PW-3) has been examined, who had deposed in his cross-examination that he had sustained injury on his leg from the back side and he is not aware as to how he sustained the injury. Thus, the learned trial Court has rightly come to the conclusion that it is not established that the wound that was caused to Parmanand (PW-3) was caused by the accused respondent. 10. We are of the considered view that the learned Trial Court has rightly appreciated the evidence and has not committed any error in acquitting the accused respondent. 11. Thus, the learned trial Court has rightly come to the conclusion that it is not established that the wound that was caused to Parmanand (PW-3) was caused by the accused respondent. 10. We are of the considered view that the learned Trial Court has rightly appreciated the evidence and has not committed any error in acquitting the accused respondent. 11. Thus, the appeal filed by the appellant – State, being devoid of merits, is dismissed and the judgment and order dated 16.05.1998 passed by the learned Trial Court is upheld.