JUDGMENT 1. 1.The appellants Nathu Singh and Raghuraj Singh have filed this joint appeal against the judgment dated July 11, 1980 of Additional District & Sessions Judge No.l, Baran in Sessions Case No. 13/79, whereby, they were convicted under Section 302 read with Section 34 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-. In default of payment of fine each one of the appellants was awarded to further undergo rigorous imprisonment for a period of two months each. 2. At the outset it may be stated that the learned counsel for the appellants did not challenge the finding of the learned Trial Judge that each one of the appellant made gun fire causing an injury to Prithvi Raj, as such, we need not state the facts in detail. The main thrust of the argument of the learned counsel for the appellants is that the offence against the appellants does not travel beyond Section 324 and in any case Section 307 Indian Penal Code and they have already undergone imprisonment for 211/2 months. 3. In view of the aforesaid submissions made by the learned counsel for the appellants, we propose to give only few facts of the case, which are necessary for the decision of the appeal.For an incident, which is alleged to have taken place on 11.11.78 at 6.00 p.m. Crime No. 91/78 was registered at Police Station Mangrol District Kota at 7.00 a.m. on 12.11.78 on the oral report made by the injured Prithvi Raj (since deceased). In the report it was stated by him that their land bearing Khasra No. 18 measuring about 25 bighas is situated in village Nandgaonri, which was being cultivated by them. Gopal Singh and his associates wanted to forcibly occupied the said land. That Gopal Singh, Nathu Singh, Gordhan Singh and their 15-20 relatives came on the above field in the morning of 11.11.78 and they cut the `Jawar' crop, which they wanted to take to village Nandgaonri in a tractor. That on the report of his brother-Sukhdeo the police came on the spot and after making investigation the police went towards Mangrol taking Gopal Singh with them. That on the report of his brother-Sukhdeo the police came on the spot and after making investigation the police went towards Mangrol taking Gopal Singh with them. It was also stated by the informant that he, Ram-Kishan, Jagannath, Nathu-Dhakad had also gone on the field and after the police had gone, they were returning to their house, but, in the mean time the accused-Nathu Singh and Raghuraj Singh came out from the standing crop and each one of them made a gun fire causing injury to him on his thigh, while Ramesh, Jagannath and Nathu ran away. Injured-Prithvi Raj fell down on account of the injuries and in the early morning Ram Kishan and others came in search when they met him, and the incident was narrated to them and they have brought him in a bullock-cart for making the report.On this report police registered the crime under Section 307/34 Indian Penal Code. In the police proceedings, it is mentioned that two wounds were noticed on the right thigh of injured-Prithvi Raj. Prithvi Raj died on 22.11.78 and the postmortem of the dead-body was made by Dr. S.S. Bakshi, Medical Jurist, Maharav Bhim Singh Hospital, Kota on the same day.After the death of Prithvi Raj, the offence Under Section 302 was added and after investigation a charge-sheet was filed against both the appellants under Section 302 read with section 34 IPC. Ultimately, they were tried for the aforesaid charge in the court of learned Additional District & Sessions Judge No.l, Baran and were convicted and sentenced as indicated above. 4. We have heard Mr. Biri Singh at length on the question of the offence committed by the appellants. As already stated earlier, Mr. Biri Singh did not challenge the finding of the learned trial Court that each of the appellants made a gun fire causing one injury on the thigh of the deceased. In our view, the above concession made by Mr. Biri Singh appears to be reasonable as there is overwhelming evidence to prove that each of the appellants made gun fire causing an injury on the thigh of the Prithvi Raj. For the sake of convenience it may be stated that PW 1 Ram Kishan, PW 7 Jagannath, and PW 11 Nathu are the eye witnesses of the incident and the trial Court placed reliance on their testimony. For the sake of convenience it may be stated that PW 1 Ram Kishan, PW 7 Jagannath, and PW 11 Nathu are the eye witnesses of the incident and the trial Court placed reliance on their testimony. Then, there is a dying declaration Ex.P/20 recorded by PW 19 Shri Ramesh Chandra Srivastava, the then Tehsildar-cum-Third Class Magistrate Mangrol. The oral statement made by Prithvi Raj to the SHO Mangrol on the basis of which FIR Ex.P/20 was recorded also became, his dying declaration after his death and the same is admissible under Section 32 of the Evidence Act. We, therefore, agree with the finding of the learned trial Court that both the accused-appellants made a gun fire causing one injury on the thigh of the deceased.So far the question of sentence is concerned, we find merit in the argument of Mr. Biri Singh. On 12.11.78 the injuries of Prithvi Raj were medically examined by PW 15 Dr. Tej Karan Galav vide MLR Ex.P/16. The following two injuries were noticed on the body of Prithvi Raj: (i) Rounded in shape 1/4" in diameter & 1/4" in depth On the Rt. glutial region 2" above the lower and of the seerum & 1" lat. to the same (ii) Rounded in shape 1/4" in diameter & 1/4" in depth In the middle of the Rt. glutial region 2" above the first injury Both the injuries were opined to be simple by the doctor. In his cross examination PW 15 Dr. Tej Karan Galav has stated that the injured-Prithvi Raj had developed peritonitis and subsequently gloxinia. Gloxinia is poisoning. He also stated that simply on account of the injuries sustained by the Prithvi Raj peritonitis could not have developed nor he could have died due to the injuries. He also stated that ulceration or fever could cause peritonitis, but he was unable to say the cause due to which the injured developed peritonitis in the instant case. He also stated that the injured was discharged by him at 6.00-7.00 p.m. on 12.11.78 and at the time of discharge he had not developed gloxinia. PW 6 Dr. S.P. Elhans had taken the X-ray of the injuries of abdomen of injured-Prithvi Raj. He found radio-opaque in pelvic cavity and one at rt. hip joint was suggestive of bullets. He proved X-ray plates Ex.P/8 and Ex.P/9 and X-ray report Ex.P/10. PW 6 Dr. S.P. Elhans had taken the X-ray of the injuries of abdomen of injured-Prithvi Raj. He found radio-opaque in pelvic cavity and one at rt. hip joint was suggestive of bullets. He proved X-ray plates Ex.P/8 and Ex.P/9 and X-ray report Ex.P/10. He also stated that postmortem Ex.P/11 bears the signature of Dr. Buxi, who had conducted the same. The witness had removed the pallets by making operation of injured-Prithvi Raj. In cross examination he admitted that the pallets at the depth, which was found in the present case, could not cause death of person. He also stated that the injuries should not have caused gloxinia. From the statements of the above two doctors it transpires that the injuries sustained by Prithvi Raj were simple in nature and they themselves could not cause his death. As per postmortem report, the death of Prithvi Raj was due to toxinia and peritonitis. The cause of development of peritonitis and gloxinia has not been brought on record. There is also no evidence that the injuries sustained by Prithvi Raj were sufficient in the ordinary course of nature to cause death or that the death could be caused by the injuries, if toxinia has not developed. The statement of Dr. Buxi was not recorded as he had Died. In these circumstances from the material on record, the conviction of the appellants Under Section 302 Indian Penal Code cannot be sustained and they could be convicted Under Section 307 Indian Penal Code. 5. Consequently, we allow this appeal in part. The conviction and sentence of the appellants under section 302 read with Section 34 Indian Penal Code is set-aside and they are convicted Under Section 307 Indian Penal Code. They have already undergone imprisonment for a period of 211/2 months or so during investigation, trial and after conviction. The appellant-Raghuraj Singh was about 19 years at the time of the incident, while appellant Nathu Singh was 35 years of age. The incident is of the year 1979 and since August 1980 the appellants are on bail. Taking into consideration all the facts & circumstances, we are of the opinion that the period of imprisonment already undergone and a fine of Rs. 1,000/- shall meet the ends of justice for the offence Under Section 307 Indian Penal Code. The incident is of the year 1979 and since August 1980 the appellants are on bail. Taking into consideration all the facts & circumstances, we are of the opinion that the period of imprisonment already undergone and a fine of Rs. 1,000/- shall meet the ends of justice for the offence Under Section 307 Indian Penal Code. Hence, the appellants are sentenced to the period of imprisonment already undergone by them and to pay a fine of Rs. 1000/- each. In default of payment of fine they will undergo rigorous imprisonment for six months. Three months' time is granted to deposit the amount of fine. They are on bail and need not surrender. In case they fail to deposit the amount of fine in the above specified period, the trial Court shall take steps for their arrest to serve the period of imprisonment awarded in default of payment of fine.Appeal Partly Allowed. *******