Decided on August 17,1984

JODH SINGH Appellant


N.M.KASLIWAL,J. - (1.)THIS appeal is redirected against the judgment of the learned Sessions Judge, Ajmer dated March 12, 1976, by which, the accused -appellant Jodsingh was convicted for offence under Section 302, IPC and sentenced to imprisonment for life.
(2.)BRIEFLY stated, the prosecution story is that Jodhsingh, the accused, himself went to the Police Station, Sarwad, district Ajmer, on June 15, 1975 at 2.00 A.M. and lodged the report (Ex. P 16). It was stated in the report that his younger brother Shambu Singh, employed in the Police Department at Kota, was living separately with him. Shambu Singh had been given his share in the properties, but still he used to raise disputes since 1960 and whenever he came on leave, he used to abuse and give beating to the informant. It was further stated that he had come on leave on that day also and in the night at about 9 to 10 P.M. when Jodh Singh was standing on the roof of his house after taking his meal, Shabhusingh came there and hurled abuses and began to give beating to Jodhsingh. On this Jodhsingh lifted a gun and fired a shot towards Sambhusingh and the pellets have gone in the right thigh of Shambhu Singh. It was further stated that Shambu Singh has been left alive on the spot and he had come to make the report in the Police Station and also produced a gun. The above report was recorded by Heera Singh (PW 10), who was an ordinary constable and as he had no power to record the FIR, he put a note on the said information that a case under Section 307 IPC was made out, but as he has no powers to record the FIR, as such FIR shall be forwarded to the A.S.I., Ram Karan at Ajmer. It was further recorded in the FIR that as Jodhsingh is involved in a case under Section 307, IPC, the proceedings for arrest were taken and the gun was also seized. Subsequently, Ram Karan, the A.S.I. got the FIR registered at 11.30 A.M. on June 15, 1975 and started investigation for offence under Section 307, IPC. PW 14 Ram Karan, A.S.I., has staled that he went to village Higonia at 2.00 P.M. and during investigation found that Head Constable Badri Narayan had already prepared the inquest memo of the dead body of Shambhu Singh and was preparing the site -plan. The case was, as such, converted from Section 307, IPC to Section 302, IPC. Thereafter, the dead -body of Shambhu Singh was taken to the hospital, Kekri for postmortem examination PW 3 Dr. Om Prakash Tak conducted the autopsy of the dead -body of Shambhu Singh and recorded the following injuries on the body of Snambhu Singh:
(1) Oval shape wound 1' in diametre with inverted margins. The margins of the wound were blackish charred over medial aspect of the mid of right thigh. (2) There were seven other wounds showing the apperture of the entrance each wound 1/4' in diamerte with inverted margins were black charred surrounding the wound No. I over the medical aspect of right thigh It was also recorded by the doctor that the cause of death in his opinion was due to shock and hemorrhage as a result of multiple fracture of right femur caused by fire arm. The injuries were ante -mortem in nature.

The Police, in these circumstances, filed a challan against the accused under Section 302 IPC in the court of Munsif and Judicial Magistrate Kekri. The case was committed for trial to the court of Sessions, The accused denied the charges and claimed to be tried.

(3.)THE Prosecution, in support of its case, examined 14 witnesses and the accused, in defence, examined four witnesses.

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