Kapur, J.
1. For the murder of Bhagtar chowki-dar, Mehnga appellant and Waryama, who has been acquitted, were tried for an offence under Section 302, Penal Code, and Mehnga was sentenced to death by the learned Sessions Judge of Jullundur. The convict has appealed to this court & the sentence of death is also before us for confirmation.
2. The occurrence is said to have taken place at about 8 P. M. on 3-4-1948 in front of the house of Waryama accused in Miranwali Gali of village Nag-gal Ambia, Tehsil Nakodar. The story of the prosecution is that three days before the occurrence the Tehsildar had come to the village and had directed the Lambardar, Kartar Singh (P. W. 9,) to arrange for the collection of land revenue. In pursuance of that order, which was given orally by the Tehsildar, the Lambardar Kartar Singh had directed Bhagtu Chowkidar to go and make a proclamation in the village that land revenue would be collected on the following day. When Bhagtu Chowkidar went into Miranwali Gali and was making this proclamation Waryama and Mehnga came out of the house of Waryama and there Mehnga abused the Chowkidar saying 'Sale, you come everyday and trouble us for the collection of land revenue' and then he took out his pistol and shot him in the abdomen. It is alleged that this incident was witnessed by Kartar Singh Lambardar (P. W. 9), Kishna (P. W. 10), and Das (P. W. ID. There and then Mehnga was arrested and a pistol was recovered from him as also four 303 live cartridges in a magazine. Both Mehnga and Bhagtu were taken to Shahkot, two miles away from the village, Mehnga to the Police station and Bhagtu to the Hospital.
3. The first information was lodged by Kartar Singh Lambardar and Bhagtu was admitted into the Shahkot dispensary. Finding that the condition of Bhagtu was not too good, the medical officer in charge, Dr. B. R. Madan (P. W. 6), at about 9-45 p.m. sent a ruqqa, Ex. p. O. to the police station and Assistant Sub Inspector of Police Jagdish sarup came at about 10 p.m. and recorded the statement of Bhagtu after the doctor had certified that Bhagtu was in a fit condition to make a statement. The dying declaration Ex. P. H/1 was finished at about 10-17 p.m.
4. Finding that the condition of Bhagtu was deteriorating, the medical officer in charge at Shahkot had Bhagtu sent to Jullundur where because of his condition being fairly bad another dying declaration was recorded, this time by the Tehsildar. It is marked Ex. P. A./1. This was at about 4-26 p.m. on 4-4-1948. Bhagtu died on 5-4-1948.
5. As, at the time when this offence was committed Jullundur had been notified to be a dangerously disturbed area, there were no commitment proceedings and no charge was framed but the case was sent to the learned sessions Judge on 22-7-1948 under the provisions of the Punjab Public Safety Act. This notification was, however, withdrawn on 32-10-1948 and in view of this the learned Sessions Judge on 30-11-1948 passed an order ' p the effect that further proceedings would be taken in accordance with Chapter 23, Criminal P. C. and the accused be summoned, for 7-12-1948 and the case would be tried as a sessions trial with the aid of assessors on 14-12-1948. On 7th December, the learned sessions Judge proceeded to frame a charge to the following effect:
'I, Bakhshi Sher Singh, hereby charge you Mehnga and Waryama as follows: That you on 3-4-1948 in the area of your village Nangal Ambia, in furtherance of the common intention of you both did commit murder by intentionaily causing the death of Bhagtu chow-kidar of your village and thereby committed an offence punishable under Section 302 read with Section 34, Penal Code, and within cognizance of the Sessions Court, Jullundur.
And 1 hereby direct that you be tried by the said Sessions Court on the said charge.'
6. The case was tried with the aid of assessors and on 21-12-1948 Mehnga accused was convicted under Section 302, Penal Code, and sentenced to death and Waryama accused was acquitted.
7. In the appeal before us it was submitted by the learned Advocate for Mehnga accused that the procedure was defective in so far as the charge should not have been framed In the manner that it was done. It was contended that the learned Sessions Judge should not have framed a charge straightway but have recorded some evidence before framing a charge & reliance was placed on a Judgment of the Sind Judicial Commissioners' Court reported In -- 'Dod v. Emperor', AIR 1915 Sind 50 (A). I do not agree with this submission. There is no provision, as far as I know, in the Code whereby a Sessions Judge has first to take evidence before he can frame a charge under Section 226, Criminal P. C. In this connection reference may be made to -- 'Crown v. Ram Singh', Murder Reference No. 87 of 1948 (Punj) (B). This contention, I must, therefore, repel.
8. The conviction of Mehnga is based on three pieces of evidence, (i) the testimony of eye-witnesses, (ii) the two dying declarations and (iii) circumstances.
9. With regard to (1), eye-witnesses, they are Kartar Singh lambardar and Kishna, P. Ws. 9 and 10. According to Kartar Singh, he heard some shouts being raised by Bhagtu to the effect 'Mar lia, mar lia'. He then proceeded to Zaildaran-wali Gali 'from which side the noise was coming. When he was about 15 'karams' from Bhagtu he saw Mehnga accused taking out a pistol from his pocket and firing at Bhagtu who fell down. Now, the evidence of this witness in my opinion, is not very satisfactory. He has not been able to give the name of the Tehsildar who came to give the order with regard to the collection of land revenue. According to him other Lambardars were not called. He was dismissed about six or seven months before he gave evidence and in spite of that he called himself a Lambardar merely because he had applied for reinstatement. He had been removed at the instance of the refugees and Mehnga is a refugee. It is not shown why the proclamation for land revenue should have annoyed Mehnga as he is not shown to be a person from whom land revenue was due or who was paying land revenue at all. It is not clear why 'mar liya, mar liya' was shouted because there is no evidence of any kind of quarrel between Mehnga accused and Bhagtu deceased. There is nothing on the record which shows that there was any shouting which could have attracted the attention of Kartar Singh and taken him to the place. A similar kind of criticism can be levelled against Kishna also. On the record, as it stands, I am unable to hold that Kartar Singh or Kishna were eye-witnesses. If they were not eye-witnesses, it is beyond my comprehension how in the first information report it is mentioned that Kartar Singh heard Mehnga shouting to Bhagtu 'Sale, lo tujhe muamla de kar torta hoon', nor do I see how it was possible for him to mention the accused taking out a pistol from his pocket and firing. It is possible that Kartar Singh and his companion did reach the spot soon after the shooting had been done because Mehnga was arrested at the spot and Bhagtu was also picked up there and they were both taken to Shahkot and a pistol was taken from Mehnga which was produced immediately at the police Station.
10. With regard to the dying declarations, I am afraid, they are not such on which absolute reliance can be placed. It is true that in both the dying declarations the name of Mehnga is mentioned as the person who fired the shot which hit Bhagtu deceased, but beyond that it will not be-safe to rely on these dying declarations. One important fact to be noticed is that in the first dying declaration which was taken down by the' Assistant Sub-Inspector of Police the sequence of events and the language used are almost identical with that used in the first information report. In this dying declaration Mehnga is alleged to have challenged Bhagtu in the following words: 'Come here, let me give land revenue. You daily turn up to tease us.' Upon this Mehnga took out his pistol & fired at him. It was after this that Kartar Singh Lambardar etc. arrived at the scene. In the dying declaration which was made before the Tehsildar on the following day the words used are -- 'you daily demand land revenue, wait a bit'. The firing took place after that. It is not proved that any demand was made by Bhagtu, previous to this occasion, nor that this demand was made daily. This is what has been made out to be the motive for this shooting by Mehnga & this motive is not proved as it is neither shown that Mehnga was a person from whom land revenue was due or had it ever been demanded from him or that this demand was made every day. In this dying declaration the only person who is alleged to have-seen the occurrence was Waryama, who was subsequently accused of the offence. On hearing the Shouts a large number of persons are said to have arrived of whom one was Das. The other names. are not there, although it is later stated that it were Sardara, Kishna and Pratap Singh who removed Bhagtu to his house. In my opinion, it is not safe to rely on these dying declarations beyond the statement that it was Mehnga who had the pistol, a shot from which hit Bhagtu, and subsequently caused his death.
11. It seems to oe correct that Mehnga was arrested soon after the occurrence by Kartar Singh and others and was soon after taken to the police station, a pistol was recovered from him as also four .303 live cartridges and this proves that the pistol was shot by Mehnga accused. Beyond that the matter is not carried by this evidence. In his appeal to this Court Mehnga has stated as follows :
'I had no enmity with Bhagtu deceased. I did possess an illicit pistol which was country made. I pulled the trigger and by chance the bullet struck the deceased resulting in his death. I did not at all commit this murder intentionally. It was a mere chance. I found this pistol from the house of a Muslim. I was examining the pistol when the trigger got pressed. Unfortunately the deceased was passing in front of me and the bullet struck him'.
12. On this evidence where motive alleged was not been proved, no enmity is established and there is nothing to rebut the death being only an accidental, I do not think it will be safe to convict the accused of murder under Section 302, Penal Code. Under Section 300 of the Code the prosecution has to prove that the act by which death is caused was done with a certain intention or knowledge and as long as the prosecution does not prove such intention or knowledge, the accused is entitled to acquittal and there is no onus on him to take or prove any special plea of accident or necessity. Where, as in the offence of murder, intent or knowledge is an ingredient of a crime, there is no onus on the accused to prove that the act was accidental. 'R. v. Devis', (1913) 29 TLR 350 (C) and where death is caused by injuries from a fire-arm, the prosecution has to show not only that the firing was intentional or voluntary but also that) the firing was prompted by any such intention or knowledge as is mentioned in Section 300, Penal Code, If either of these ingredients is not proved, the offence committed is not murder whatever else it may be. 'Mohammad Saddiq v. The Crown', AIR 1949 Lah 85 (D), was a case where in somewhat similar circumstances Munir, Acting C. J., relying on 'R. v. Devis', (C) Supra came to the same conclusion.
13. I may also refer to the well-known case --'Woolmington v. The Director of Public Prosecutions', (1935) AC 462 (E) where it was held that in a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner.
14. I must hold that in this case malicious intention has not been proved and, therefore, the appellant is entitled to acquittal of the charge of murder. But even according to his own statement contained in the grounds of appeal which is substantiated by circumstances he is guilty of committing a rash and negligent act which is covered by Section 304A, Penal Code. I would, therefore, change the conviction from murder under Section 302 to an offence under. Section 304A and would sentence him to rigorous imprisonment for two years. The sentence of death is, therefore, set aside.
Khosla, J.
15. I agree.