JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. T. Lalzekima, learned Amicus Curiae for the appellant. Also heard Mrs. Linda L. Fambawl, learned Public Prosecutor for the State. 2. This appeal had been filed against the Judgment and Order dated 17.07.2023 passed by the Court of the Addl. Sessions Judge-I, Aizawl in SC No. 104/2017 (Criminal Trial No. 927/2017), by which the appellant has been convicted under Section 302 IPC and Section 25(1B) (a) of the Arms Act, 1959. 3. The appellant was thereafter, vide Sentence Order dated 18.07.2023, sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5000/-, in default, Rigorous Imprisonment for one month under Section 302 IPC. The appellant was also sentenced to undergo Simple Imprisonment for 1 year with a fine of Rs. 1000/-, in default, Simple Imprisonment for 10 days under Section 25(1B) (a) of the Arms Act, 1959. 4. The prosecution case in brief is that an FIR was lodged on 05.03.2017, addressed to the Officer-in-Charge of Bawngkawn Police Station, to the effect that on the night of 04.03.2017 at around 9:30 pm, the appellant had shot his son during a family dinner. The SBBL 12 Bore Gun, LG TV bearing ricochet mark and blood stained clothes were seized. Inquest over the dead body was conducted and it was forwarded to the Civil Hospital for autopsy. In pursuance to the FIR dated 05.03.2017, Bawngkawn PS Case No. 78/2017 was registered on 05.03.2017 under Section 302 IPC read with Section 25(1B)(a) of the Arms Act, 1959. 5. After conclusion of the investigation, chargesheet was filed against the appellant by the case I.O., who found a prima facie case against the appellant under Section 302 IPC and Section 25(1B)(a) of the Arms Act, 1959. Charges were framed against the appellant under Section 302 IPC and Section 25(1B)(a) of the Arms Act, 1959 to which the appellant pleaded not guilty, stating that he tried to shoot the TV and accidentally shot his son C. Zonunmawia. 6. The trial proceedings concluded with the examination of 18 prosecution witnesses (PW in short) and examination of the appellant under Section 313 CrPC. In the examination of the appellant under Section 313 CrPC, the appellant did not deny that he was holding a gun while the deceased was lying beside the dining table on the floor. 7. 6. The trial proceedings concluded with the examination of 18 prosecution witnesses (PW in short) and examination of the appellant under Section 313 CrPC. In the examination of the appellant under Section 313 CrPC, the appellant did not deny that he was holding a gun while the deceased was lying beside the dining table on the floor. 7. The question No. 9 and the answer given to the said question by the appellant during his examination under Section 313 CrPC, is to the effect that the appellant had no intention to shoot his deceased son, as he intended to shut down the TV by using the SBBL gun, because his deceased son used to put on the TV with a high volume, which disturbed his sister who was studying. The appellant further stated that he did not know how his deceased son came between the TV and the appellant, when the appellant shot the TV. The question No. 9 and the answer given to the same by the appellant, in his examination under Section 313 CrPC, is reproduced herein below as follows:- “Q.9. Do you have anything else to say in your favour? Ans: The fact is that I have no intention to shot my deceased son but I intended to shut down the TV by the said SBBL gun because my deceased son used to play the TV with a high volume while his sisters were studying. I do not know how my deceased son came between the TV and me while I shot the TV I also would like to state the case I.O recorded my statement falsely.” 8. The learned Trial Court, after examining the evidence and hearing the arguments put forth by the parties, came to a finding that the appellant had not been provoked by the deceased before shooting him at point blank range. It also held that the stand of the appellant that he tried to shut down the TV with the SBBL gun was only a lame excuse and that there was no reason for the accused to fire the SBBL gun, except due to the fact that he had the intention to kill the deceased. It also held that the stand of the appellant that he tried to shut down the TV with the SBBL gun was only a lame excuse and that there was no reason for the accused to fire the SBBL gun, except due to the fact that he had the intention to kill the deceased. The learned Trial Court also came to a finding that as the SBBL gun used by the appellant to shoot his son belonged to the PW-12, who was the brother of the appellant, the provision of Section 25(1B)(a) of the Arms Act, 1959 had been attracted. 9. The appellant was accordingly convicted under Section 302 IPC and Section 25(1B)(a) of the Arms Act, 1959 and sentenced accordingly. 10. The learned Amicus Curiae submits that the challenge made to the impugned Judgment and Order is based on three counts. Firstly, the charge has been framed under a wrong provision of law and has not been altered prior to the judgment being passed by the learned Trial Court. Secondly, there were no eye witnesses to the shooting of the deceased by the appellant and that the conviction had been based on circumstantial evidence. However, the circumstantial evidence did not form a complete chain. Thirdly, the prosecution failed to prove that a murder had been committed in terms of Section 300 IPC, as the prosecution had failed to prove that the appellant had the intention to murder his son. 11. The learned Amicus Curiae submits that in the Form which had been used by the learned Trial Court, by which charge had been framed against the appellant under Section 302 IPC and Section 25(1B)(a) of the Arms Act, 1959, the learned Trial Court had correctly mentioned Section 302 IPC in the middle of the Form. However, in the bottom part of the Form, it had mentioned Section 320 IPC and not Section 302 IPC. He also submits that in paragraph 15 of the impugned Judgment and Order dated 17.07.2023, it had been recorded that the appellant has been convicted under Section 320 IPC and not under Section 302 IPC. He thus submits that this mistake in the Form used, while framing charge against the appellant, having not been corrected by the learned Trial Court, the conviction and sentence of the appellant under Section 302 IPC was not proper or sustainable. 12. He thus submits that this mistake in the Form used, while framing charge against the appellant, having not been corrected by the learned Trial Court, the conviction and sentence of the appellant under Section 302 IPC was not proper or sustainable. 12. The learned Amicus Curiae also submits that the circumstantial evidence recorded by the learned Trial Court does not prove that the appellant had killed his son. 13. The learned Amicus Curiae also submits that there was no intention on the part of the appellant to kill his son, as the intention of the appellant was only to shoot the TV to shut it down. However, the appellant did not know how the deceased came into his line of fire, as the deceased was sitting on the dining table eating food at the relevant point of time. He submits that in terms of Section 300 IPC, the prosecution had a duty to prove that there was an intention on the part of the appellant to kill his son, which the prosecution failed to do and as such, the appellant could not have been convicted of murder under Section 302 IPC. In this respect, he has relied on the judgments of the Supreme Court in the case of Nankaunoo Vs. State of Uttar Pradesh reported in (2016) 3 SCC 317 and in the case of Anbazhagan Vs. State represented by the Inspector of Police reported in 2023 SCC OnLine SC 857. 14. The learned Amicus Curiae submits that as the appellant had taken a stand that there was no intention on the part of the appellant to kill his son, it was the duty of the prosecution to prove the charge beyond all reasonable doubt, as a doubt had been created by the appellant with regard to whether the appellant had the intention to kill his son, as reflected in his explanation given under Section 313 CrPC. However, the same not being done, the appellant could not have been convicted under Section 302 IPC. In this regard, he relies upon the judgment of the Supreme Court in the case of Pramila Vs. State of Uttar Pradesh reported in (2021) 12 SCC 550 . 15. The learned Amicus Curiae has also relied upon the Judgment of the Supreme Court in the case of K.M. Nanavati Vs. In this regard, he relies upon the judgment of the Supreme Court in the case of Pramila Vs. State of Uttar Pradesh reported in (2021) 12 SCC 550 . 15. The learned Amicus Curiae has also relied upon the Judgment of the Supreme Court in the case of K.M. Nanavati Vs. State of Maharashtra reported in AIR 1962 SC 605 , wherein it has been held that an accused is presumed to be innocent until proven guilty by the prosecution. It also held that when the accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. 16. The appellant’s counsel submits that in view of the reasons stated above, the appellant can at best, be convicted under Section 304 Part-2 IPC. He accordingly submits that the impugned Judgment and Order should be set aside in so far as it relates to the appellant’s conviction under Section 302 IPC. 17. Mrs. Linda L. Fambawl, learned Public Prosecutor, on the other hand, submits that the evidence of (1) PW-2, who is the daughter of the appellant, (2) PW-3, who is the landlord of the appellant, (3) PW-4, who is the wife of the appellant and (4) PW-5, who is the father-in-law of the appellant, clearly goes to show that it was none other than the appellant who had killed his son by shooting him with the SBBL gun. The house of the appellant consisted of 2 rooms. One room was the bedroom, while the other room consisted of the sitting room-cum-kitchen. She submits that there were only 6 persons in the house of the appellant at that time of the incident, out of whom PW-2 to PW-5 were in the sitting room-cum-kitchen watching TV, when the deceased was shot by the appellant. 18. One room was the bedroom, while the other room consisted of the sitting room-cum-kitchen. She submits that there were only 6 persons in the house of the appellant at that time of the incident, out of whom PW-2 to PW-5 were in the sitting room-cum-kitchen watching TV, when the deceased was shot by the appellant. 18. The appellant having admitted during framing of charge and in his statement during Section 313 CrPC examination that he had no intention to kill his son, the only question to be decided is as to whether there was any intention on the part of the appellant to kill his son. 19. The learned Public Prosecutor submits that there is nothing to show that there was any provocation made by the deceased towards the appellant, prior to the deceased being shot by the appellant, except for the fact that they might have had a small argument. 20. The learned Public Prosecutor submits that the evidence of PW-2 is to the effect that when she heard the sound of the gun being fired, she saw her father (appellant) holding a gun standing beside the gas stove (kitchen). She also saw her deceased brother lying beside the dining table on the floor. 21. The learned Public Prosecutor submits that the evidence of PW-2, PW-3 and PW-5 is to the effect that the remaining 4 inmates of the house were watching TV at the time the gun was fired. 22. The learned Public Prosecutor submits that it is unbelievable that a normal person would have tried to shoot the TV, when people were watching the same, which resulted in the death of the deceased, who was eating dinner on the dining table. 23. The learned Public Prosecutor submits that there was intention on the part of the appellant to kill the deceased in view of the use of a gun by the appellant and the shooting of a vital part of the deceased. She accordingly submits that there is no infirmity with the finding of the learned Trial Court that the appellant had intentionally killed his son. As such, the appeal should be dismissed. 24. We have heard the learned counsels for the parties. 25. She accordingly submits that there is no infirmity with the finding of the learned Trial Court that the appellant had intentionally killed his son. As such, the appeal should be dismissed. 24. We have heard the learned counsels for the parties. 25. The first issue to be decided is whether any prejudice had been caused to the appellant because of an unintentional mistake that had been made in the Form used by the learned Trial Court, while framing charge under Section 302 IPC and Section 25(1B)(a) of the Arms Act, 1959 against the appellant. 26. The extract of the Form framing the two charges against the appellant is reproduced herein below as follows:- “State of Offence : 1. You shot your son C. Zonunmawia (19) at his right shoulder region and your son died on the same night. You shot your son while he was having dinner in your house with a 12 bore SBBL Gun. And thereby committed an offence punishable under Section 302 IPC. 2. You possessed and used the said 12 bore SBBL Gun without valid license by keeping and shooting your son who succumbed to his injury. And thereby committed an offence punishable under Section 25(1B)(a) Arms Act. And I hereby direct that you be tried by this Court on the said charges. In the cognizance of : My Court in my cognizance. In the case Tried by Magistrate Omit by the said Court Charge U/S 320 IPC r/w 25(1B)(a) Arms Act is framed, read over and clearly explained to the accused in the language known to the accused, the ramification and repercussion of being found guilty is also made known to him. And to which He pleaded not guilty stating that he try to shot TV and accidentally also shot his son C.Zonunmawia.” 27. A perusal of the above clearly goes to show that Section 302 IPC has rightly been mentioned for the death of the deceased due to the gunshot triggered by the appellant. And to which He pleaded not guilty stating that he try to shot TV and accidentally also shot his son C.Zonunmawia.” 27. A perusal of the above clearly goes to show that Section 302 IPC has rightly been mentioned for the death of the deceased due to the gunshot triggered by the appellant. Just because a mistake had occurred in the bottom half of the charge Form, wherein Section 320 IPC had been written instead of Section 302 IPC, we are of the view that no prejudice has been caused to the appellant, inasmuch as, his entire defence, as can be seen from the cross examination of the prosecution witnesses, shows that he was aware that he had been charged under Section 302 IPC and not under Section 320 IPC. His defence was thus made on the basis of having been charged of the offence punishable by Section 302 IPC. Though there has been a typographical mistake again made in paragraph 15 of the impugned Judgment and Order dated 17.07.2023, wherein the appellant has been inadvertently shown to be convicted under Section 320 IPC, a reading of the entire impugned Judgment and Order would show that the correct provision of law i.e. Section 302 IPC has been used numerous times in the impugned Judgment and Order. Further, the Sentence Order dated 18.07.2023, sentencing the appellant to undergo Rigorous Imprisonment for life, showed that he had been sentenced under Section 302 IPC and not under Section 320 IPC. As such, it can be said that the appellant has been convicted under Section 302 IPC and not under Section 320 IPC. 28. In our view, the unintentional mistake that has occurred does not change the subject matter of the case and had not caused any prejudice to the appellant, as his defence in the entire trial proceedings had been made, by trying to get out from the rigors of Section 300/302 IPC. 29. The second ground of challenge to the impugned Judgment and Order by the appellant, is to the effect that there were no eye witnesses and that circumstantial evidence was the basis for the conviction of the appellant. However, as the circumstantial evidence did not form a complete chain, the conviction of the appellant could not have been made under Section 302 IPC. However, as the circumstantial evidence did not form a complete chain, the conviction of the appellant could not have been made under Section 302 IPC. The above issue need not take much of our time, in view of the fact that the appellant, in his answer to question No. 9 during his examination under Section 313 CrPC has admitted to having shot his son unintentionally, while the appellant has alleged that he was only trying to shoot the TV, but not his son. Also, during framing of charge, the appellant admitted to accidentally shooting his son, while trying to shoot the TV. Further, in his appeal petition dated 16.08.2024, submitted through the Special Superintendent, Central Jail, the appellant has stated at paragraphs 2 and 3 as follows:- “2. That as per Section 300 of the Indian Penal Code, an offence of murder is committed only if it is done with the intention of causing death. In my case, the deceased is my own son who was an alcoholic and was always making problems in the family. As such, there is absolutely no question of shooting him with intention of causing death. I have no intention to shoot at my said son at all as I made an abortive attempt to shoot at the TV by using the SBBL Gun. 3. That as can be seen from the evidences of the prosecution witnesses that my deceased son was an alcoholic and got the habit of creating problems in the family. Apart from that the deceased used to watch TV late at night with full volume thereby disturbing his sisters who were studying their lessons. As a result, on the fateful date of incident also, I scolded my said son and gave fatherly advice not to turn on TV while his sisters were studying. Unfortunately, the deceased disobeyed and refused to listen to me. I picked up the gun and intended to completely destroy the TV by shooting at it. My deceased son suddenly got up and jumped towards me to take the gun from me in order to prevent me from shooting the TV. Unfortunately, I triggered the said gun pointing at the TV and accidentally shot at the deceased who suddenly jumped upon me. This clearly indicated that there was no intention nor knowledge nor motive to murder my deceased son. Unfortunately, I triggered the said gun pointing at the TV and accidentally shot at the deceased who suddenly jumped upon me. This clearly indicated that there was no intention nor knowledge nor motive to murder my deceased son. In fact, all the prosecution witnesses have confirmed my statement to this effect.” 30. The only question that is to be decided now is as to whether there was any intention on the part of the appellant to shoot his son and/or whether it was accidental. 31. In the case of State of Haryana Vs. Pala & Others reported in 1996 (8) SCC 51 , it has been held by the Supreme Court that intention is locked up in the heart of the assailant and the inference is to be drawn from the acts and attending circumstances. Thus, though the appellant has taken a stand that there was no intention on the part of the appellant to kill his son, the same would have to be viewed through the lens of the attending facts and circumstances of the case. 32. The evidence of PW-1, who was the Policeman on night duty in Bawngkawn Police Station on the night of the shooting, is to the effect that on receiving information that one person had been shot dead at Bawngkawn Hmar Veng, he and two other Policemen rushed to the spot. On arrival, it was learnt that one C. Zonunmawia had died due to gunshot injuries to his person. The dead body had already been taken out from the place of occurrence before they had arrived and had been kept in the unoccupied house of H. Lalruata of Bawngkawn. Inquest over the dead body was conducted by PW-1 and he found that the deceased had sustained bullet injury on his upper left rib with an exit wound on the upper right rib. Thereafter, the residence of the appellant was visited and a rough sketch map of the place of occurrence was drawn up. On questioning the appellant, leading to the death of the deceased, the appellant stated that while having dinner with his family members, a quarrel ensued between him and the deceased and the deceased suddenly went inside his bedroom. Thereafter, the appellant heard a gunshot sound and saw the deceased lying in a pool of blood on the floor. On questioning the appellant, leading to the death of the deceased, the appellant stated that while having dinner with his family members, a quarrel ensued between him and the deceased and the deceased suddenly went inside his bedroom. Thereafter, the appellant heard a gunshot sound and saw the deceased lying in a pool of blood on the floor. PW-1 thereafter stated that the physical evidences, such as empty case of cartridge, SBBL 12 Bore Gun, LG Television bearing ricochet mark, blood stained cloth were seized by PW-1. He also examined PW-2, PW-3, PW-4 and PW-5, who were present at the time of commission of the offence. As all the physical evidences disproved the version of the appellant and as it pointed towards the existence of foul play on the part of the appellant in the death of the deceased, the appellant was arrested and brought to the Police Station for interrogation. Further, the dead body was forwarded to the Civil Hospital for autopsy. The seized articles were also sent to the FSL for examination. In his cross-examination, PW-1 stated that the TV set was damaged by the ricocheting of the bullet. 33. The evidence of PW-2, who is the sister of the deceased and daughter of the appellant, is to the effect that she was studying in Class X in the year 2017. The house of the appellant was made up of 2 rooms, one being the bedroom and the other being the sitting room-cum-kitchen. On the night of 04.03.2017, between 7:30 to 9:00 pm, while PW-2 was watching television, the appellant and the deceased were having dinner in the kitchen on a table. The landlord PW-3, her mother PW-4 and PW-5, who was the father-in-law of the deceased were sitting in the sitting room. At that time, the appellant was scolding the deceased by saying “You are so dirty, I am not in a mood to have dinner with you”. The appellant also told the deceased not to watch TV late at night as he disturbed his sister who was studying. The deceased talked back. Thereafter, PW-2 heard a gun fire inside the house. She saw the appellant standing beside the gas stove (kitchen) holding a gun. PW-2 also stated that she saw the deceased lying beside the dining table on the floor. The deceased talked back. Thereafter, PW-2 heard a gun fire inside the house. She saw the appellant standing beside the gas stove (kitchen) holding a gun. PW-2 also stated that she saw the deceased lying beside the dining table on the floor. PW-2 thereafter immediately rushed towards her father and pulled him towards the sitting room and sat with him in the long chair in the sitting room. Thereafter, some of her family members took her brother to Greenwood Hospital. PW-2 also stated that on 22.05.2017, her statement was recorded by the Judicial Magistrate 1st Class, Aizawl and the same was exhibited as Exbt. P-6, with her signature as Exbt.P-6 (a). In her cross-examination, PW-2 stated that her deceased brother was an alcoholic and used to create problems in the family. He did not behave even when scolded by the appellant and he would also shout back most of the time. PW-2 stated that her deceased brother talked back to her father and was shouting at her father on that fateful night. However, PW-2 did not see the appellant shooting the deceased. PW-2 however admitted in her cross- examination that she saw the appellant holding a gun and her deceased brother lying besides the dining table on the floor. 34. The statement of PW-2, which was recorded under Section 164 CrPC on 22.05.2017 is to the following effect:- “I do not know the details of what happened in our home on the night of 4.03.2017. The reason is because I was watching the television and I know that my father and elder sibling were both eating dinner in the kitchen that night. While watching TV, I heard the sound of a gunshot from our kitchen and a huge commotion followed. I do not clearly remember what happened but I remember seeing my elder sibling lying on the floor. Other people attended my elder sibling while I rebuked my father. I also prayed and my paternal aunt took me to their home. This is all that I remembered about that night.” 35. The evidence of PW-3, who is the landlord of the appellant, is to the effect that while he was having a conversation while watching TV, the deceased entered the house and told his mother that he wanted to have dinner. The mother then told the deceased that he would have to have dinner with his father, the appellant. The evidence of PW-3, who is the landlord of the appellant, is to the effect that while he was having a conversation while watching TV, the deceased entered the house and told his mother that he wanted to have dinner. The mother then told the deceased that he would have to have dinner with his father, the appellant. The mother thereafter went to prepare dinner for the deceased. PW-3 then stated that he heard the appellant telling his son to take off his shoes, as he did not want to have dinner with the deceased while the deceased was wearing his shoes. Then, PW-3 heard the deceased going inside their bedroom and take off his sock. Thereafter, the deceased came out from the bedroom and sat on the dining chair in order to have dinner. PW-3 suddenly heard a gunshot and immediately faced towards the kitchen, where he saw the deceased slowly collapse from the dining chair to the floor. He rushed to help the deceased. However, he knew that the deceased was dying. Thereafter, they took the deceased to Greenwood Hospital. In his cross-examination, PW-3 stated that the appellant did not want to have dinner with the deceased, as the deceased was wearing muddy sport shoes as he had come home from the playground. He also stated that he did not see the appellant shooting the deceased. 36. The evidence of PW-4, who is the mother of the deceased and wife of the appellant, is to the effect that while preparing dinner for her husband and the deceased, she heard her husband telling the deceased not to watch TV late at night, as he was disturbing others and to come home on time. The son then talked back to her husband. However, they were not quarrelling. PW-4 also stated that there was a gas stove at the right side of the house when entering their residence. Her son was sitting on the right side of the table and the appellant was sitting on the left side of the table. While they were having dinner, PW-4 went to the sitting room and sat there on the long chair. After 4 to 5 minutes, she heard a gunshot and immediately faced the kitchen, where she saw her son on the kitchen floor near the chair and dining table. Thereafter, they went to Greenwood Hospital. While they were having dinner, PW-4 went to the sitting room and sat there on the long chair. After 4 to 5 minutes, she heard a gunshot and immediately faced the kitchen, where she saw her son on the kitchen floor near the chair and dining table. Thereafter, they went to Greenwood Hospital. In her cross-examination, PW-4 stated that when the deceased returned to their house, he was drunk as usual, as he was an alcoholic, who was always making problems in the family. 37. The evidence of PW-5, who is the father-in-law of the appellant, is to the effect that he was watching TV with PW-2, PW-3 and PW-4 after dinner. While watching TV, the deceased came to the house after playing football and thereafter he heard a loud gunshot sound and the TV they were watching shut down. PW-5 then said that he was taken to the house of PW-3, where he was told that the deceased had been shot by the appellant. In his cross-examination, PW-5 stated that he did not see the appellant holding the gun nor pulling the trigger. 38. The evidence of PW-6 is to the effect that he was a seizure witness to the seizure of T-shirt of the deceased with blood stains. 39. The evidence of PW-7 and PW-8 is that they were the seizure witnesses to the seizure of one LG T.V black colour by the Police. 40. The evidence of PW-9, PW-10 and PW-11 is to the effect that they were the seizure witnesses to the seizure of one SBBL gun and one empty cartridge by the Police. 41. The evidence of PW-12, who is the elder brother of the appellant, is to the effect that he is the license holder of the seized 12 Bore SBBL Gun and that the appellant used to take the gun to the jungle for hunting, without informing PW-12. 42. The evidence of PW-13, who is the Doctor, who examined the deceased, is to the effect that there was a gunshot entry wound over right scapular region and gunshot exit wound over the left scapular region. 43. The evidence of PW-14, who is the Jr. Scientific Officer, FSL, Aizawl is to the effect that the cartridge case had been fired through the seized SBBL gun and the lead slug of a 12 Bore cartridge was found inside the TV. 44. 43. The evidence of PW-14, who is the Jr. Scientific Officer, FSL, Aizawl is to the effect that the cartridge case had been fired through the seized SBBL gun and the lead slug of a 12 Bore cartridge was found inside the TV. 44. The evidence of PW-15, who is the Doctor, who conducted the Post Mortem Examination (PME) of the deceased, is to the effect that the cause of death was due to hemorrhagic shock, as a result of haemothorax due to gunshot injury. In his cross-examination, PW-15 stated that no bullet was found in the body of the deceased. 45. The evidence of PW-16, who is the I.O is to the effect that during interrogation, the appellant had admitted to having shot his son due to his wayward ways and for rebuking him. 46. The evidence of PW-17 and PW-18 is to the effect that they were seizure witnesses to the seizure of the Arms License produced by PW-12. 47. As can be seen from the evidence of PW-2, PW-3, PW-4 and PW-5, they were all watching television at the time they heard a gunshot, which resulted in the death of the deceased. 48. A perusal of the sketch map of the place of occurrence drawn up by the Police, read with the evidence of PW-2 and PW-4, shows that plastic chairs and the dining table were between the main door of the house and the TV stand. The evidence of PW-2 is to the effect that she saw the appellant holding a gun near the gas stove (kitchen). The evidence of PW-4 is to the effect that the gas stove was at the right side to the entrance of the house. As such, the dining table and chair where the deceased was having his dinner, was in between the main door and the TV stand. There can be no rational explanation as to why the appellant would have wanted to shoot the TV, when there was an obstruction between his target and himself, especially when four (4) known people, i.e., PW- 2 to PW-5, were also watching TV at that point of time. There can be no rational explanation as to why the appellant would have wanted to shoot the TV, when there was an obstruction between his target and himself, especially when four (4) known people, i.e., PW- 2 to PW-5, were also watching TV at that point of time. There is nothing discernable in the evidence recorded by the learned Trial Court to show that there was any grave and sudden provocation on the part of the deceased towards the appellant, which could have resulted in the appellant shooting his son in a flash of anger. In fact, PW-4, who is the wife of the appellant has stated in her evidence as follows:-“My husband C. Malsawma stated to my son that My husband told my son not to watch TV late at night as he was disturbing others and to come home on time. My son talk back to my husband. However they were not quarrelling.” In any event, even if it is presumed that there was grave and sudden provocation on the part of the deceased towards the appellant, the talking back by the deceased towards his father cannot justify the shooting of the deceased by the appellant, inasmuch as, the retaliation to the provocation should be proportional and cannot be disproportionate to the provocation. In the case of Dauvaram Nirmalkar Vs the State of Chhattisgarh , 2022 SCC Online SC 955 , the Supreme has held in para 12 that the retaliation should be proportionate to the provocation. 49. In the case of Dhupa Chamar and Others Vs. State of Bihar , reported in (2002) 6 SCC 506 , the Supreme Court has held that intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion, whether the offence is culpable homicide or murder. 50. In the case of Nankaunoo (supra), the Supreme Court has held that intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. 50. In the case of Nankaunoo (supra), the Supreme Court has held that intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The Supreme Court further held that when the injury exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. 51. In the case of Anbazhajan (supra), the Supreme Court held that the intention has to be proved by the prosecution and that the accused had the aim of causing such body injury as was likely to cause death. 52. In the case of Pramila (supra), the Supreme Court held that burden of proof of an accused in support of the defence taken under Section 313 CrPC is not beyond all reasonable doubt as it lies on the prosecution to prove the charge. The accused has merely to create a doubt. It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused. 53. In the case of K.M. Nanavati (supra), the Supreme Court has held that there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the general exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. 54. In the case of Ashok Debbarma Alias Achak Debbarma Vs. State of Tripura, reported in (2014) 4 SCC 717, the Supreme Court held that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such, cannot be made the sole basis for finding the accused guilty. The reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution. 55. In the case of Munna Kumar Upadhyay Vs. State of Andhra Pradesh, reported in (2012) 6 SCC 174 , the Supreme Court has referred to another of its decision in Manu Sao Vs. State of Bihar , reported in 2010 12 SCC 310, that the object of recording the statement of the accused under Section 313 CrPC is to provide an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. However, if the statements of the accused are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. It further held that the Court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. However, such statements made under this section should not be considered in isolation, but in conjunction with evidence adduced by the prosecution. 56. On considering the various decisions of the Supreme Court, it is clear that the question whether the appellant had the intention to kill his son would have to be arrived at from the facts and circumstances of the case, as it is something which is hidden within the heart of the perpetrator of the offence. 57. 56. On considering the various decisions of the Supreme Court, it is clear that the question whether the appellant had the intention to kill his son would have to be arrived at from the facts and circumstances of the case, as it is something which is hidden within the heart of the perpetrator of the offence. 57. In the present case, only one cartridge had been fired from the gun and the same gun had first hit the deceased and had exited his body and thereafter hit the TV due to the ricochet. The evidence of the Doctor clearly states that no bullet was found in the body of the deceased and that the bullet had hit the TV. If the bullet was to have ricochet from the TV, then the bullet would not have been found on the TV. 58. As it is unbelievable of a normal person to have tried to shoot the TV while 4 persons were watching the same, it is quite apparent that the appellant had intentionally shot his son and the bullet had ricocheted onwards to the TV. The son was also found collapsing from the dining chair in the kitchen and as such, it can be said that it was the intention of the appellant to shoot his son. There was no provocation which could have resulted in the disproportionate retaliation by the appellant. The talking back by the deceased to his father and the shooting of the son by the father with a SBBL gun on a vital part of his body, knowing fully well that the injury was liable to cause death, in the view of this Court shows that the intention of the appellant was to kill his son. 59. The fact that the appellant has not denied that he accidentally shot his son, though attempting to shoot the TV, clearly shows that the fatal shot had been fired by the appellant. The reason given by the appellant that he had no intention to kill his son as his intention was to shoot the TV, in our view, is only an afterthought and that the appellant had the intention to kill his son. 60. In view of the reasons stated above, we do not find any reason to interfere with the impugned Judgment & Order. The appeal is accordingly dismissed. 61. Send back the case record. 62. 60. In view of the reasons stated above, we do not find any reason to interfere with the impugned Judgment & Order. The appeal is accordingly dismissed. 61. Send back the case record. 62. In appreciation of the assistance provided by the learned Amicus Curiae, his fee should be paid by the State Legal Services Committee.