KANJI Vs. STATE

JUDGEMENT

(1.) This appeal is by Kanji, who has been sentenced to death by the Additional Sessions Judge of Jhalawar under Section 302 of the Indian Penal Code. The Judge has also made a reference to this Court for confirmation of the sentence of death.

(2.) The prosecution story was briefly this A Barat had come to village Patlai and was staying in a Bageechi there. In that connection a lot of drinking had been going on since the morning of 20th May, 1950. Among those, who are said to have taken part in this drinking, was Kanji appellant. At about 6 P. M. on that day, the deceased Shiv Lal, a boy of 14, was picking raw mangoes in the Bageechi along with another boy. The appellant turned up in the Bageechi carrying a gun with him. He went past the people who were sitting there and suddenly shot at Shiv Lal from a distance of about 10 paces. Shiv Lal fell down and died shortly afterwards. Another boy who was near Shiv Lal also got slight injuries. After shooting Shiv Lal, the appellant went away. The matter was reported in the Thana next morning through one Pura Balai. The appellant also surrendered himself in the Thana on the 21st of May and handed over the gun from which the shot was said to have been fired. Later, he was put up before a Magistrate for recording his confession and he made a statement on the 3rd of June, 1950 to which he has more or less, stuck throughout the trial. The statement which he then gave was this. He said that he and others had been drinking from the morning in connection with that marriage party. Later he went away to the house of one Amera Kumhar and had more drink there. Thereafter he came to the Bageechi where the marriage party was staying. There he found a number of persons grappling with one another. He asked them not to fight. The gun was in his hand at that time and was loaded. It went off somehow and he cannot say how that happened. The shot hit the boy Shiv Lal. Thereafter the appellant says that he did not know what happened because he was not in his senses on account of intoxication. Next day when he regained his senses at about 8 A. M., he found himself lying in the jungle. He then came to the village and found that Shiv Lal was dead. Thereafter he went to the Thana and handed over the gun and said that Shiv Lal had been struck by a shot from that gun.

(3.) The main question, therefore, for decision in this case is whether the gun went of acci-dentally as alleged by the appellant or whether it was fired by the appellant himself. The prosecution has examined a number of witnesses whose evidence leaves no doubt in our mind, that the gun did not go off accidentally but was fired by the appellant at Shiv Lal. We may also mention that the appellant did not produce any evidence for defence to show that there had been a scuffle in the Bageechi and that his gun went oil accidentally in that Bageechi. All the evidence that he produced was to the effect that he had been drinking since the morning on that day which is not in dispute because some of the prosecution witnesses also admit that drinking had been going on since the morning and the appellant had taken part in it.