JUDGMENT 1. - The three appellants Digamber Singh, Udai Singh and Govind Singh were indicted before the learned Sessions Judge No. 2, Bharatpur in Sessions Case No. 75/1994 for having committed murder of Chetan. They were convicted and sentenced vide judgment dated October 31, 1995 as under: (i) Digamber Singh- under section 302 IPC to undergo imprisonment for life and a fine of Rs. 500/- and under section 3/25 of the Arms Act, to suffer three years R.I. and fine of Rs. 500/- in default to further suffer one year R.I. (ii) Udai Singh and Govind Singh- under section 302 read with 34 IPC to suffer imprisonment for life and a fine of Rs. 500/- in default to further suffer six months R.I. Both these sentences were directed to run concurrently. Against this judgment of conviction that the present action for filing the instant appeals have been resorted to by the appellants. 2. The prosecution story is woven like this. Dhara Singh (PW 1) submitted a written report (Ex.P1) to ASI Mangal Singh (PW 15) of Police Station Nadbai on July 17, 1994 around 8.15 AM at General Hospital, Bharatpur with the averments that there was a foundation dispute between the appellants and the complainant party and on this score there was some altercation. Chetan (now deceased) suddenly appeared that the scene and then appellant Digamber Singh fired the gun which hit on the right eye of Chetan and he fell down. Chetan was taken to Nadbai Hospital in an unconscious state from where he was referred to Bharatpur Hospital, but he died on the way. Written report was forwarded to Police Station Nadbai where formal FIR bearing No. 238/94 under section 302/34 IPC was registered and investigation commenced. Site plan of the place of occurrence Ex. P2 was drawn, inquest report (Ex.P3) of deceased Chetan was prepared and autopsy on the dead body was conducted- Vide Post mortem report (Ex.P 19), the statement of witnesses under section 161 Cr.PC. were recorded, appellants were arrested and at the instance of appellant Digamber Singh, fire arm was recovered. Three lead pellets/pieces contained in packet D, one 12 bore country made pistol, marked W/1, one 12 bore chetak fire king blank cartridge, marked L/1 and two 12 bore K.F. special cartridges, cases marked C/1 & C/2 contained in packet F were sent to FSL. Three lead pellets/pieces contained in packet D, one 12 bore country made pistol, marked W/1, one 12 bore chetak fire king blank cartridge, marked L/1 and two 12 bore K.F. special cartridges, cases marked C/1 & C/2 contained in packet F were sent to FSL. On completion of the investigation charge sheet was Lald against the appellants and one Daulat. In due course the case came up for trial before the learned Addl. Sessions Judge No. 2, Bharatpur. Co- accused Daulat died in the course of the trial and proceedings against him stood abetted. 3. Learned trial Judge framed charges against appellant Digamber Singh under section 302 IPC and 3/25 of the Arms Act whereas the other appellants Udai Singh and Govind Singh were charged under section 302 read with 34 Indian Penal Code The appellants denied the charges and Claimed to be tried. The prosecution in support of its case examined as many as 15 witnesses. In the Explanation under section 313 Cr.P.C., the appellants claimed innocence. Digamber Singh examined himself as DW 1. The learned Trial Court on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove : 4. Before proceedings further, we deem it appropriate to consider the injuries sustained by deceased Chetan. As per the Autopsy report Ex.R 19 following anti mortem injuries were found on the body of the deceased. (i) Two punctured lacerated wounds 1/2 X 1/4 cm X soft tissue deep each collar of abrasion at margin but no bleeding and not tetting seen. (ii) One punctured lacerated wound on right cheek 1/4 X 1/4 cm on the tissue deep with collar of abrasion but no bleeding and no tetting seen on medial side of right eye with deformity on right eye. (iii) Diffuse swelling 6X4 cm on right parietal region. 5. As per post mortem report the death was caused on account of injury No. 3 to skull and brain which was sufficient in the ordinary course of nature to cause death. The pellets recovered from the body were sealed and handed over for ballistic opinion. Dr. B.L. Meena (PW 9) who conducted autopsy on the dead body of deceased, in his cross examination, categorically stated that after receiving injury No. 1 and 2 if the deceased had a fall on the stones used for filling the foundation, injury No. 3 could be caused. 6. Dr. B.L. Meena (PW 9) who conducted autopsy on the dead body of deceased, in his cross examination, categorically stated that after receiving injury No. 1 and 2 if the deceased had a fall on the stones used for filling the foundation, injury No. 3 could be caused. 6. We now proceed to consider the ocular testimony produced by the prosecution in order of substantiate the charges levelled against the appellants. The prosecution primarily examined Dhara Singh (PW 1), Ram Chand (PW 2), Jagdish (PW 3) and Bhagwan Singh (DW 6) as eye witnesses of the occurrence. 7. In his deposition Dhara Singh PW 1 stated that Digamber opened fire with 12 bore gun which hit on the right eye of Chetan on account of which Chetan fell down. Udai Singh also opened fire but that could only hit the door of his house whereas Govind Singh armed with the gun remained standing. In the cross examination, Dhara Singh stated that he had seen the blood oozing from the ear and eye of Chetan but he did not see any injury on his head. 8. Ram Chand (PW 2) deposed that it was Udai Singh who opened fire which hit Chetans right eye but in the next breath changing his version he stated that Udai Singhs fire hit at the door. Only when Digamber opened fire, it hit on the right eye of Chetan and he fell down. Jagdish (PW 3) and Bhagwan Singh (PW 6) almost repeated the version narrated by Dhara Singh (PW 1). 9. It is thus evident from the ocular testimony that the injury on eye was attributed to Digamber and injury No. 3 that proved fatal was received by the deceased on account of fall on the ground that the death was not caused by the fire arm injury sustained by the deceased on his right eye but Chetan died as a result of injury No. 3 sustained by him because of fall on the ground. 10. In Isher Dass v. State (AIR 1954 Jammu and Kashmir 19) in a similar situation it was indicated that where the accused fired gun at the deceased causing wound but there is no medical evident that the injury was the cause of death, conviction under section 326 and not under section 302 was proper. 10. In Isher Dass v. State (AIR 1954 Jammu and Kashmir 19) in a similar situation it was indicated that where the accused fired gun at the deceased causing wound but there is no medical evident that the injury was the cause of death, conviction under section 326 and not under section 302 was proper. Division Bench of Gujarat High Court in yet another case reported in 1988 Gujrat Law Reporter 64 observed that for holding a person guilty either for offence of culpable homicide not amounting to murder or for the offence of murder, it must be established that the death was the result of the injury caused by that person. Thus when there are two injuries found on the person of the deceased and medical evidence showed that the deceased very probably died not only on account of the injury sustained by him by Tamancha but by the injury sustained by him by Dharia, the accused who fired Tamancha cannot be said to be responsible for causing death of the deceased. 11. In the instant case as already noticed, injury attributed to appellant Digamber was injury on the right eye of the deceased which did not cause the death, therefore, injury sustained by the deceased on account of fall on the ground cannot be attributed to Digamber and he cannot be held responsible for causing death of the deceased in view of the explanation of Dr. B.L. Meena (PW 9) who in his cross examination categorically deposed that injury No. 3 could be result of fall on the stones. In our considered opinion charge under section 302 IPC is not established against the appellant Digamber Singh. 12. In so far as the conviction of appellants Udai Singh and Govind Singh under section 302 read with 34 IPC is concerned, the ocular testimony of the eye witnesses could only establish that both were present at the time of incident. Although the allegation against Udai Singh was that he opened fire which hit at the door but neither the pellet was recovered nor the fire arm at his instance was seized. The allegation against appellant Govind Singh was that he was only standing and no overt act was attributed to him. Both Udai Singh and Govind Singh had not shared common intention with Digamber Singh as Chetan suddenly appeared at the place of incident. The allegation against appellant Govind Singh was that he was only standing and no overt act was attributed to him. Both Udai Singh and Govind Singh had not shared common intention with Digamber Singh as Chetan suddenly appeared at the place of incident. We are therefore of the view that the charge under section 302/34 IPC could not be established against Udai Singh and Govind Singh beyond reasonable doubt from the material on record. 13. As the deceased had sustained deformity over his right eye and lost his eye sight, we are of the view that the offence under section 326 was committed by Digamber Singh and we therefore convert his conviction from Section 302 IPC to one under section 326 Indian Penal Code From the material on record we are satisfied that Digamber was rightly convicted under section 3/25 Arms Act and we confirm his conviction under the said section. 14. In the result we allow the appeal of appellants Udai Singh and Govind Singh and set aside their conviction under section 302 read with 34 Indian Penal Code The appellants Udai Singh and Govind Singh are on bail. They need not surrender and their bail bonds stand discharged. 15. The appeal of Digamber Singh stands partly allowed and his conviction under section 302 is set aside, instead he is convicted under section 326 Indian Penal Code He has remained in custody- for a period of more than 7 years and the ends of justice would be met in sentencing him to the period already undergone by him. Appellant Digamber Singh is in Jail, he shall be released forthwith if not required in any other case.Partly allowed. *******