M.Y.EQBAL, J. - (1.) This appeal by the appellant State is directed against the judgment and order dated 15.09.2008 passed by the High Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No. 630 of 2004, whereby Division Bench of the High Court partly allowed the appeal of the accused -respondent and altered his conviction from Section 302 of the Indian Penal Code (IPC) to Section 304 Part -I, IPC and sentenced him to a period of eight years rigorous imprisonment and fine of Rs.50,000/ -.
(2.) Facts in brief of the present case are that one Ram Chandra filed a report Ex.P -13 before the Superintendent of Police, Nagaur on 16.6.2001 stating inter alia that on the same day, when he and Mangla Ram were going from Bodwa to Dadariya Khurd for attending 'maira', one suzuki motorcycle came from the back side at a distance of ten kilometers away from Kuchera. Mangla Ram, who was sitting on the back side of the motorcycle, cried that someone from the suzuki motorcycle has fired upon him. Thereupon, he saw that accused Ram Kailash and driver Mangi Lal were on the suzuki motorcycle. Accused -respondent Ram Kailash fired with pistol, to whom, he and Mangla Ram Sarpanch identified. Sarpach Mangla Ram was taken to Kuchera hospital, and thereafter, to Nagaur and from there, he was referred to Jodhpur hospital. Upon this report, In -charge of Police Station Kuchera registered a case under Section 307/34 IPC and Section 3/25 of the Arms Act and commenced investigation. Injured Mangla Ram was operated at Jodhpur Hospital, where he died on 22.6.2001. Thereafter, police filed charge -sheet against accused -respondent under Sections 302, 120 -B IPC and 3/25 of the Arms Act. Accused Ghewar Ram was challaned under Section 302/34 and 120 -B IPC and third person namely Durga Ram was declared as absconding. Later on Durga Ram was arrested and he was charged under Sections 302/34 and 120 -B, IPC. Respondent was charged under Sections 302, 120 -B, IPC and Sections
(3.) /25 and 3/27 of the Arms Act. Accused Durga Ram was charged under Sections 120 -B and 302 in alternative 302/34 IPC and accused Ghewar Ram was charged under Section 120 -B IPC, to which they pleaded not guilty. Prosecution examined 33 witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. Three witnesses were examined in defence. 3. From the documents on record and the impugned order, it is clear that the main injury on the person of deceased Mangla Ram as per the Medical Jurist M.S. Kothari was Kothari a cut wound of 5.5 cm x 5 cm x plural cavity deep on the lower part of the right chest and on the upper part of the leg and in consequence of this, there were multiple wounds on account of abrasions and bruises on the right arm. According to him, these injuries were caused by fire arm. He advised X -ray of both these injuries. On the multiple wounds on the arm, there was no bone injury as per the Radiological Report, and fracture of 10th rib was found on the right side of the chest vide Radiological Report. As a result of these injuries caused on 16.6.2001, deceased Mangla Ram died on 22.6.2001. The main eye witness according to the FIR is Ram Chandra, who has been examined as PW -10. He has stated in his examination in chief that when he was going with Mangla Ram Sarpanch on the motorcycle, then, he saw Ghewar Ram, accused -respondent Ram Kailash, Durga Ram and Mangi Lal two kilometers before Kuchera near Suzuki motorcycle and another Rajdoot motorcycle, and on seeing them on motorcycle, they all four entered in the dhani of Sangramji. About ten kilometers away from Kuchera, Suzuki motorcycle came. The driver of which was Mangi Lal and the respondent was sitting on the rear side, who fired on them, which collided with the right thigh of the Sarpanch. Thereafter, he went to the hospital and lodged the report.;