K. C. SHARMA, J. - (1.) THIS criminal appeal by accused Kirti arises out of the judgment and order dated 30. 7. 2003 passed by the learned Additional Sessions Judge, (Fast Track), No. 2 Dholpur, by which the learned Judge has convicted and sentenced the appellant for offence under Section 302 IPC and Section 3/25 of the Arms Act and sentenced him to life imprisonment with a fine of Rs. 500/-, in default thereof, to further undergo simple imprisonment for two months on the first count and to under go imprisonment for one year with a fine of Rs. 100/-, in default thereof to undergo 13 days imprisonment in the second count.
(2.) THE facts leading to the present appeal are that on 21. 6. 2000 police recorded Parcha Bayan (Ex. P. 21) of complainant Layak Singh, since deceased, according to which, on the day of incident at 7 AM while he was standing at the gate of his house, he saw Sirnam and Atar Singh etc. quarreling with each other. In the meantime appellant Kirti along with Dhuliya, Ramratan, Ramsahai, Munna, Subedar, Amresh, Kedar, Mewaram, Kallo and Gabbar came there. Appellant Kirti had a 12 bore gun and he opened fire on Layak Singh, the pallets of which hit on his left thigh and he fell down. It was alleged that the accused persons had encircled him. After the incident, Lalla, Vidya, Ramuji etc. brought him to the hospital in a tractor. THE learned behind the incident having taken place was stated to be some dispute between Ramuji and Subedar in regard to money transaction. In the incident, Rambharose and Veere also sustained injuries. On the basis of above Parcha Bayan, police registered a case for offence under Sections 147, 148, 149, 323, 341, and 307 vide FIR, Ex. P. 31 and proceeded with the investigation. In the course investigation, the injured succumbed to the injuries. The police added Section 302 IPC and having completed entire formalities as to the investigation, submitted challan against the accused in the court of learned Magistrate. The Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. On the basis of evidence and material collected during investigation and after hearing arguments, the learned Trial Court framed charges under Sec. 147, 148, 149, 323, 324, 307, 302 IPC and Section 3/25 of the Arms Act. The accused denied the charges and claimed trial. In order to prove its case, the prosecution examined as many as 25 witnesses and got exhibited 44 documents. After the prosecution evidence was over, the accused were examined under Section 313 Cr. P. C. The accused in their defence got examined DW1 Ramcharan and DW2 Sultan. At the conclusion of trial, the learned Trial Court acquitted all the co-accused of the offences charged with and found the accused appellant guilty of the offences under Section 302 IPC and Section 3/25 of the Arms Act and accordingly convicted and sentenced him in the manner stated herein above.
(3.) WE have heard learned counsel for the appellants and the learned Public Prosecutor and carefully scanned the evidence and material available on record. Mr. Biri Singh Sinsinwar, learned counsel for the appellant has frankly conceded that he does not want to challenge the conviction of the appellant under Section 3/25 Arms Act and in our opinion rightly so, inasmuch as the police has recovered 12 bore gun on the information and at the instance of accused appellant and that appellant who used the said gun in the commission of crime was in illegal possession of the same. He had no valid licence to hold the gun. He kept confined his arguments only to the extent that the manner in which the incident took place and in the light of evidence led by the prosecution, the offence does not travel beyond Section 304 Part II IPC and, therefore the conviction of appellant under Sec. 302 IPC is bad in law. Learned counsel, inter-alia, strenuously contended that appellant had no intention to cause the death of deceased. Had he intended to cause death, he would have chosen vital part of the body of deceased but he aimed at his thigh. That apart, he did not repeat the shot. Referring the medical evidence, Mr. Singh argued that cause of death of deceased was excessive bleeding. In this back-ground, learned counsel submitted conviction of appellant under Section 302 IPC deserves to be altered to one under Sec. 304 Part II IPC. We have given our thoughtful consideration and have gone through the relevant evidence. PW 1 Sajjan Singh has stated that Kirti had a 12 bore gun and he opened fire which hit on the thigh of Layak Singh. In cross examination the witness stated that only one shot was fired and at that time Layak Singh was wearing underwear and Baniyan. PW2 Rambharose has deposed that Kirti fired gun shot which hit on the thigh of Layak Singh. In cross examination, the witness stated that there was no dispute between the appellant and Layak Singh. He made it clear that neither there was any dispute between them in relation to money transaction nor there was enmity between them. PW5 has Birendra has also deposed that the shot which was fired by Kirti hit deceased Layak Singh on his thigh. PW20 Lalla, PW22 Atar Singh, PW23 Sirnam have also supported the version of above witnesses. From the evidence of all these eye witnesses it is crystal clear that there was no dispute/enmity between the deceased and the appellant on any count. It is further clear that appellant fired only one gun-shot and did not repeat the shot any further. The part of the body chosen and the fact that he did not repeat. the shot is conclusive of the fact that he had no intention to cause death of the deceased. The autopsy on the dead body of deceased was conducted by Dr. R. C. Goyal, PW6 and he prepared the post mortem report. A glance at the post mortem report shows that there was gun shot wound (wound of entries) at the left thigh postero, laterally upper 1/3rd of the size 1-1/2 x 3/4 cm deep upto muscle in communicate with injury No. 2, which was gunshot wound (wound of exhibit) at left thigh upper 1/2 antero medially rounded in shape, size 3cm x 3 cm. The medical jurist has deposed that cause of death was excessive haemorrhage and shock. In cross examination, the doctor has stated that had the deceased been treated immediately after he sustained gun shot injury, the bleedings could have been stopped and his life could have been saved. ;