JUDGMENT 1. This appeal has been preferred against the judgment dated 5.3.1993 passed by the learned Sessions Judge, Bharatpur, whereby he convicted the appellant for the offence under Section 302, IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default, to further undergo one years R.1. 2. Succinctly stated, relevant facts for the disposal of this appeal are that on 27.2.1990 at about 4.15 p.m. while the polling for State Legislative Assembly at polling Center Nagla Saman of village Penghor was going on an altercation arose between accused appellant Brijendra Singh, who was the polling agent of one independent candidate, Foran Singh and PW 7 Rambir Singh, who was polling agent for the candidate of Congress (I) party. When PW 6 Smt. Neelam w/o of deceased Bhuri Singh came to cast her vote, the appellant objected alleging that she had come there to cast her vote second time. Rambir Singh refuted the said allegation. Thereupon the appellant and Rambir Singh came out of the polling station quarrelling with each other. It is alleged that the appellant went to his house and came with his licensed 12 bore single barrel gun. PW 1 Jaswant Singh and deceased Bhuri Singh tried to pacify the appellant but he did not stop quarrelling. It is alleged that co-accused Khem Singh, the father of the appellant armed with a lathi and Rajan Singh armed with a Farsa also came there. Co-accused Khem Singh exhorted the appellant to open fire, thereupon the appellant fired his gun causing injuries to Bhuri Singh. Co-accused Khem Singh and Rajan Singh also inflicted lathi and farsa blows to Jaswant Singh and Shivcharan. All the injured persons were taken to Government Hospital Kumher in a truck of the polling party and from where they were referred to General Hospital, Bharatpur. PW 20 Dr. Hari Singh examined injuries of Bhuri Singh and Jaswant Singh. It is alleged that while Bhuri Singh was being taken to Agra for treatment, he succumbed to his injuries and, therefore, his dead body was brought back. PW 20 Dr. Hari Singh examined injuries of Bhuri Singh and Jaswant Singh. It is alleged that while Bhuri Singh was being taken to Agra for treatment, he succumbed to his injuries and, therefore, his dead body was brought back. Ram Kishan ASI Incharge, Out-Post Mathura Gate, Bharatpur recorded the Parcha Bayan of injured Jaswant Singh on the same day at 9 p.m. Since the said incident had taken place within the jurisdiction of police station Kumher, the said Parcha Bayan was sent there, where on 28.2.1990 at 6 a.m., crime was registered. PW 21 Jai Singh, inspected the site, prepared site plan and lifted blood stained soil and controlled soil from the place of occurrence. He sealed and seized those vide seizure memo Ex.P 3. Dr. Hari Singh conducted the post mortem examination on the dead body of Bhuri Singh and vide post mortem report Ex.P 28 opined that the cause of death was due to gun-shot injuries causing severe lacerations of right femoral vessels resulting in excessive loss of blood and shock. The appellant was arrested on 5.3.1990. It Is alleged that the appellant in pursuance to his information got recovered his licensed 12 bore gun, Art. 12. The sealed packet of 21 lead pellets, which were taken out by the medical jurist from the dead body of the deceased as also sealed packet of the recovered 12 bore gun were sent to the State Forensic Science Laboratory, Rajasthan Jaipur. The Assistant Director of the said Laboratory vide his report Ex.P. 37 opined that the said gun was a serviceable firearm, that the examination of the barrel residue indicated that the said 12 bore gun had been fired, however, definite time of its last fire could not be ascertained, and that those lead pellets could have been fired from that 12 bore SBBL gun. 3. After usual investigation, a challan was filed against the appellant and co-accused Khem Singh and Rajan Singh in the Court of the learned Additional Munsif and Judicial Magistrate, Bharatpur, who in turn committed the case to the Court of Sessions. All the accused persons were charged for offences under Section 302/34, 325/34 and 323/34, IPC, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as 21 witnesses. All the accused persons were charged for offences under Section 302/34, 325/34 and 323/34, IPC, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as 21 witnesses. The appellant in his plea recorded under Section 313, Cr.P.C denied all the allegations appearing against him in the prosecution evidence and asserted that he did not get any forged vote casted that the polling was going on peacefully till 5 p.m., that in the evening when the polling party was in the process of leaving the polling station, Rambir Singh, Shivcharan, Man Singh etc. inflicted injuries to his father Khem Singh in the field of one Lakhmi alleging that he was supporter of Congress (I). He further asserted that a false case has been foisted against him. However, no witness was examined in defence. 4. After trial, the learned Judge held that the accused persons did not have common Intention to commit the murder of Bhuri Singh, that non-explanation of the Injuries of Khem Singh was not fatal and that all the accused persons were responsible for their individal acts causing injuries to the deceased and other injured persons. He accordingly acquitted co-accused Khem Singh and Rajan Singh for offences under Section 302/34 and 325/34, IPC but convicted them for offence under Section 323/34 IPC and under Section 360, Cr. PC. gave them benefit of probation. The learned trial Judge however, found the appellant guilty for offence under Section 302, IPC and sentenced him in the manner indicated above. Hence this appeal. 5. We have heard Shri Rajesh Moondia, the learned counsel for the accused appellant and Mr. M.L. Goyal, the learned Public Prosecutor and carefully perused the record of the learned trial court in extenso. 6. Shri Rajesh Moondia has rightly not challenged the factum of the incident. He has, however, vigorously canvassed that admittedly, the gun shot fired by the appellant had only caused injuries on the thigh of the deceased which is not a vital part of the body. According to him, the appellant had no intention to commit the murder of the deceased. On the other hand, all of a sudden he was enraged because the complainant party had inflicted Injuries to his father Khem Singh. According to him, the appellant had no intention to commit the murder of the deceased. On the other hand, all of a sudden he was enraged because the complainant party had inflicted Injuries to his father Khem Singh. According to him, even the Injuries caused on the thigh of the deceased were not grievous and since his femoral vessels and muscles were damaged causing profuse bleeding which resulted in shock and his death. Shri Moondia has, therefore, contended that from the evidence recorded in this case, offence under Section 302, IPC is not at all proved against the appellant and that the offence, brought home against him does not travel beyond the offence punishable under Section 304, Part I, IPC. He further contended that the appellant has already suffered sentence for a period of about 5 years and 10 months, and as such, he be sentenced for the said offence for the period already undergone by him. 7. On the other hand, Mr. M.L. Goyal, the learned Public Prosecutor has strenuously contended that the fact that the appellant had gone to his house and picked up his licensed gun and opened fire, causing injuries to the deceased on his thigh clearly shows that he had an intention to commit murder and therefore, he has been rightly convicted for the offence under Section 302, IPC. 8. We have bestowed our thoughtful consideration to the rival submissions. PW 20 Dr. Hari Singh Yadav examined injuries of Bhuri Singh on 27.2.1990 at 6.45 p.m. and found the following injuries: (1) Lacerated wound 21/2 cm x 2 cm over right anterior sup. iliac region. (2) Lacerated wounds three in number 2cm x 1 cm., 2cm. x 1/2 cm. and 1cm. x 1 cm. over upper ⅓rd of right thigh anteriorly (3) Abrasions (entrance wounds) 46 in number varying in size 1/2 x 1/2 cm., 1/2 x 1 cm., 1/2 x 1/2 cm. in depth, over upper ⅓rd of right thigh, right angural region. (4) Spouting bleeding from wound anteriorly due to tearing of right femural vessels. Dr. Hari Singh Yadav deposed that all those injuries were caused by fire-arm, that he had advised for x-ray examination, and had reserved his opinion about the nature of injuries. 9. Dr. in depth, over upper ⅓rd of right thigh, right angural region. (4) Spouting bleeding from wound anteriorly due to tearing of right femural vessels. Dr. Hari Singh Yadav deposed that all those injuries were caused by fire-arm, that he had advised for x-ray examination, and had reserved his opinion about the nature of injuries. 9. Dr. Yadav has also proved post mortem examination report Ex.P 28 and stated that he had noticed the following external injuries on the body of the deceased:- (1) a big wound 21/2 cm x 2cm x 2cm in right angural region having inverted margin. (2) a big wound 2cm x 1 cm above the right side near injury No. 1. (3) a big wound 2cm x 11/2 cm below on the thigh below injury No. 1. (4) Small 46 scattered wounds of sizes 1/2cm x 1/2 cm, 1/2 x ⅛cm x variable depths in right upper ⅓rd of thigh surrounding the big wound. On dissection, he found that right femur was fractured. He stated that he had also removed 21 pellets from those wounds. He further stated that femoral vessels and muscles were severally damaged and there was profuse bleeding there was no blackening around the wounds. 10. PW 20 Dr. Yadav also proved injury report Ex.P 11 of co-accused Khem Singh and deposed that he found one lacerated wound 5cm x 1 cm and bone deep over his right parietal region and a bruise 1cm x 1cm over middle ⅓rd of his right back. 11. From the statements of the eye-witnesses namely, PW 1 Jaswant Singh, PW 2 Laxman Singh, PW 4 Heera Singh, PW 5 Smt. Shyamwati, PW 6 Smt, Neelam, PW 7 Ramveer Singh and PW 16 Shiv Charan, it stands fairly established that during the polling, Ramveer Singh had complained that the appellant was instrumental in casting forged votes and that thereupon both the polling agents Ramveer Singh and Khem Singh quarrelling with each other had gone outside the polling station and that thereafter the appellant brought his licensed gun, that there was exchange of hot words between both the factions and that thereafter the appellant fired only one gun shot causing injuries to the deceased. There is not a fringe of evidence to establish that the appellant while opening fire had aimed towards the deceased Bhuri Singh and caused any injury on his vital part. There is not a fringe of evidence to establish that the appellant while opening fire had aimed towards the deceased Bhuri Singh and caused any injury on his vital part. Khem Singh, the father of the appellant had also received injuries during the incident. The learned trial Judge has held that the co-accused Rajan Singh and Khem Singh did not have any common intention to commit the murder of the deceased Bhuri Singh. Therefore, it is abundantly apparent that the appellant suddenly got enraged and in heat of passion he fired a shot from his licensed gun causing injuries to the deceased on his thigh. From the evidence recorded in this case, it is not at all borne out beyond reasonable doubt that the appellant had intention to commit murder of the deceased. On the other hand, it is abundantly apparent that he had intentionally caused those injuries to the deceased which were likely to cause death. Therefore, in our considered opinion, the offence made out against the appellant is does not travel beyond Section 304, Part I, IPC and his conviction for the offence under Section 302, IPC cannot be sustained. 12. The appellant was arrested on 5.3.1990. He remained in judicia custody during trial and till date he is in jail. Thus he has already sufferer sentence for a period of 5 years and 10 months till today. Keeping in view all the facts and circumstances of the case, we are of the considered opinion that a sentence of seven years R.I. with a fine of Rs. 1000/- shall be sufficient to meet the ends of justice. 13. Hence for the reasons mentioned above, this appeal is partly allowed and the conviction and sentence of the appellant Brijendra Singh for offence under Section 302, IPC are set aside and instead, he is held guilty for the offence under Section 304 Part I, IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default, to further undergo R.I. for one year. He is in jail. The Jail authorities be informed accordingly. *******