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3. Prosecution story, as stated in the F.I.R. by Rajendra Tiwari (PW-1), is that on 14.3.2001, when he and Guddu Sharma (deceased) were in the house of Kanhaiyalal Naveriya (PW-5) in Barginagar, on the insistence of Guddu Sharma, they went to the house of accused Balram, as Guddu had to take money from him. When Balram was not found at his house, Guddu Sharma told to his wife to tell Balram that he should return his money otherwise he knew how to recover it. They went back to the house of Kanhaiyalal Naveriya. While he, M.I.Khan, Ramkumar (PW-2) were talking, at about 9:00 p.m. Balram Patel came there shouting, calling Guddu Sharma out. He was shouting that he had become a big Bully, to pressurise his family members, if he had courage he should come before him. Hearing this, all the persons came out. Balram was wielding a gun. Accused Gudda Patel was also with him. When Balram approached towards Guddu Sharma, he caught hold of his gun and scuffled with him. All the persons tried to intervene and in the course of quarrel, they reached near Tirgadda. In the meanwhile, Gudda Patel took gun from Balram and fired it in the air whereupon Guddu Sharma told to them that he would get a case under section 307 I.P.C. registered against them. Hearing this, accused Balram again took gun from Gudda Patel and fired at Guddu Sharma. The shot hit Guddu Sharma on his chest, he fell down and died. Accused persons then ran away. Rajendra Tiwari then went to police station Bargi and lodged first information report Ex.P/1. Station Officer C.R.Patel (PW-16) after recording the information in Roznamcha reached at the spot and after conducting inquest, sent the dead body of Guddu Sharma for postmortem examination to Medical College, Jabalpur where Dr. Ashok Kumar Jain (PW-15) conducted postmortem examination and gave P.M. report Ex.P/17. Before the postmortem examination, the dead body of Guddu Sharma was examined by Assistant Surgeon of Barginagar viz. Dr.A.K.Agnihotri (PW-6). Report Ex.P/13 was prepared. Seized articles were sent to Forensic Science Laboratory, Sagar for examination and reports Ex.P/21, P/22 & P/23 were received. After completion of investigation, charge sheet was filed in the Court and the case was committed for trial.

4. Trial Court framed the charge under section 302 of the Indian Penal Code against accused Balram and under section 302/34 of the Indian Penal Code against Gudda Patel. Both the accused abjured their guilt and pleaded innocence. In the statement recorded by Court under section 313 Cr.P.C. accused Balram contended that prosecution witnesses were relatives of deceased, therefore, they spoke false against him. In fact while he was returning from his field, in front of the house of Kanhaiyalal Naveriya, deceased stopped him and demanded money. When he did not give money, at that time, Guddu Sharma abused and assaulted him. In the scuffle, they went ahead of the house. In the course of altercation, deceased picked him up and dropped on the ground due to which suddenly his gun went off accidentally and hit the deceased.

9. We have gone through the entire evidence on record.

10. Complainant Kallu @ Rajendra Tiwari (PW-1), Ramkumar Patel (PW-2) and Shankarlal (PW-4), who were examined by the prosecution as eyewitnesses, did not support the prosecution case, therefore, they were declared hostile. The case, therefore, mainly rests on the evidence of eyewitnesses viz. Kanhaiyalal (PW-5), Ku. Vineeta (PW-7) and Lokesh (PW-12).

11. Kanhaiyalal (PW-5) deposed that in the evening of 14th March, 2001 at about 6:30 p.m., Guddu Sharma and Kallu Tiwari had come to his house at Barginagar. After sometime Guddu Sharma left his house saying that he would go to the house of accused Balram for applying vermilion (Tika) to him. After about half an hour he came back. While they were sitting, at about 8:45 p.m. Balram Patel came in front of their house and extended threats to Guddu Sharma. He shouted calling him out of the house. When they went out of the house, they saw Balram wielding a gun. Accused Gudda Patel was also with him. Guddu Sharma grabbed the barrel of the gun and indulged in scuffle with him. Thereafter, Guddu Sharma assaulted accused Balram Patel with fists and kicks and snatched his gun. Balram then apologised whereupon Guddu returned his gun. Thereafter, when he and Guddu Sharma proceeded back to his house they heard sound of gun fire. On looking back, they saw that accused Balram pointed his gun towards Guddu and fired it. The shot hit on the left side of chest of Guddu. Guddu fell down. Kanhaiyalal further deposed that accused also put barrel of the gun on his neck, but the gun was empty. Thereafter, both the accused ran away. Kallu Tiwari (PW-1) went to police chowki to lodge the report and informed the wife of deceased.

15. It is true that according to Dr. Ashok Kumar Jain (PW-15), margins of gun shot wound were tattooed and a plastic cap of the cartridge was found inside the wound which in his opinion indicated that gun was fired from a close range, but at the same time it is established from the evidence of Kanhaiyalal that accused went at his house and abused and extended threats to deceased. Though it was said that relations between them were cordial but from the first information report lodged by Rajendra Tiwari (PW-1), it is indicated that deceased went at the house of accused Balram to get his money back from him and on not finding him at his house, he intimidated his wife that he knew how to recover the same. Though Kallu @ Rajendra (PW-1) disowned the first information report Ex.P/1, but admitted his signatures on it. F.I.R. Ex.P/1 was proved by the head constable Dashrath Singh Thakur (PW-17). It gives some indication why accused Balram Patel went at the house of Kanhaiyalal in enraged mental condition and abused the deceased. Though Kanhaiyalal (PW-5) denied that deceased was a person with criminal antecedents, yet it was established by the evidence of head constable Laxmi Prasad (DW-1), who proved criminal record of deceased by producing copies of crime register (Ex.D/4 to D/11) of police station, Lordganj that number of criminal cases under sections 307,506,323,452,426,376, I.P.C. etc were registered against him. He was so desperate that he caught hold of the gun of accused and assaulted him by fists and kicks and snatched his gun. It appears that when deceased returned the gun to accused Balram, he fired the same at deceased. It seems to us that neither prosecution witness nor accused gave wholly truthful description of the occurrence. It does not stand to reason that accused would go away for about 25 paces then fire. Evidence of Kanhaiyalal with respect to distance of the deceased from the accused does not appear trustworthy, however, it has been clearly established from his evidence that Balram Patel fired gun at deceased as a result of which he died. It is revealed from the evidence of Kanhaiyalal (PW-5) that immediately before Balram fired, his gun was snatched and he was beaten by deceased. In these circumstances, in our opinion, it cannot be held that he had motive to commit murder of deceased. Had he intended it, he could have fired at deceased at the very moment he came out of his house hearing his threats. But he fired gun shot at deceased without any premeditation in a sudden fight upon a sudden quarrel, his act, in our opinion, fell within the ambit of Exception 4 of section 300 of the Indian Penal Code. Therefore, appellant Balram Patel was liable to be convicted unde section 304 Part I and not under section 302 of the Indian Penal Code.