N.M. Kasliwal, J.
1. This appeal is redirected against the judgment of the learned Sessions Judge, Ajmer dated March 12, 1976, by which, the accused-appellant Jodsingh was convicted for offence under Section 302, IPC and sentenced to imprisonment for life.
2. Briefly stated, the prosecution story is that Jodhsingh, the accused, himself went to the Police Station, Sarwad, district Ajmer, on June 15, 1975 at 2.00 A.M. and lodged the report (Ex. P 16). It was stated in the report that his younger brother Shambu Singh, employed in the Police Department at Kota, was living separately with him. Shambu Singh had been given his share in the properties, but still he used to raise disputes since 1960 and whenever he came on leave, he used to abuse and give beating to the informant. It was further stated that he had come on leave on that day also and in the night at about 9 to 10 P.M. when Jodh Singh was standing on the roof of his house after taking his meal, Shabhusingh came there & hurled abuses and began to give beating to Jodhsingh. On this Jodhsingh lifted a gun and fired a shot towards Sambhusingh and the pellets have gone in the right thigh of Shambhu Singh. It was further stated that Shambu Singh has been left alive on the spot and he had come to make the report in the Police Station and also produced a gun. The above report was recorded by Heera Singh (PW 10), who was an ordinary constable and as he had no power to record the FIR, he put a note on the said information that a case under Section 307 IPC was made out, but as he has no powers to record the FIR, as such FIR shall be forwarded to the A.S.I., Ram Karan at Ajmer. It was further recorded in the FIR that as Jodhsingh is involved in a case under Section 307, IPC, the proceedings for arrest were taken and the gun was also seized. Subsequently, Ram Karan, the A.S.I. got the FIR registered at 11.30 A.M. on June 15, 1975 and started investigation for offence under Section 307, IPC. PW 14 Ram Karan, A.S.I., has staled that he went to village Higonia at 2.00 P.M. and during investigation found that Head Constable Badri Narayan had already prepared the inquest memo of the dead body of Shambhu Singh and was preparing the site-plan. The case was, as such, converted from Section 307, IPC to Section 302, IPC. Thereafter, the dead-body of Shambhu Singh was taken to the hospital, Kekri for postmortem examination PW 3 Dr. Om Prakash Tak conducted the autopsy of the dead-body of Shambhu Singh and recorded the following injuries on the body of Snambhu Singh:
(1) Oval shape wound 1' in diametre with inverted margins. The margins of the wound were blackish charred over medial aspect of the mid of right thigh.
(2) There were seven other wounds showing the apperture of the entrance each wound 1/4' in diamerte with inverted margins were black charred surrounding the wound No. I over the medical aspect of right thigh
It was also recorded by the doctor that the cause of death in his opinion was due to shock and hemorrhage as a result of multiple fracture of right femur caused by fire arm. The injuries were ante-mortem in nature.
3. The Police, in these circumstances, filed a challan against the accused under Section 302 IPC in the court of Munsif and Judicial Magistrate Kekri. The case was committed for trial to the court of Sessions, The accused denied the charges and claimed to be tried.
4. The Prosecution, in support of its case, examined 14 witnesses and the accused, in defence, examined four witnesses.
5. The learned Sessions Judge convicted the accused for offence under Section 302, IPC placing reliance on the extra-judicial confession made by the accused and the other circumstances.
6. We have gone through the entire record of the case and, in our opinion, no case is made out beyond Section 326, IPC against the accused-appellant.
7. So far as the FIR (Ex. P 16) is concerned, the accused-appellant had clearly stated that he had fired a shot by gun and the pellet had gone in the right thigh of Shambhu Singh. It was also stated that the he had left Shambhu Singh alive on the spot and had, thereafter, came to make the report.
8. The Prosecution, in regard to extra-judicial confession, placed reliance on the statements of PW 2 Mohanlal son of Suganchand; PW 9 Mohanlal son of Laxmi Narayan; PW 11 Bhanwarlal and PW 12 Mithulal. So far as PW 2 Mohanlal is concerned, he was allowed to be cross-examined at the request of the Public Prosecutor. His evidence as such, does not inspire much confidence as he has not supported the prosecution story itself. PW 9 Mohanlal son of Laxminarayan, has stated that after the incident, the accused had come along with a gun in the building where the Naib Tehsildar (PW 11) along with Patwaris and other persons were staying, The accused told the Naib Tehsildar that he has murdered his brother and a gun was with him and if Naib Sahib was going to Sarwad, then, the accused also wanted by to accompany him. Naib Sahib, on this, told that they had come for realising the levy and will go to Sarwad in the morning. Patwari Mohanlal (PW 2) made the accused to drink water and, thereafter, the accused went away from the spot. Another witness of extra-judicial confession isPWli Bhanwarlal, who was a Naib Tehsildar at the relevant time. In the examination-in-chief, he stated that the accused had come along with a gun and the accused told him to take him to Sarwad. On this, the witness Bhanwarlal told that he was not going back to Sarwad at that time. Thereafter, the accused made a request for drinking water. Mohan Lai, who was Patwari of Higonia, made the accused to drink water. The accused, then, told that he has committed murder of his brother-
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and, thereafter, the accused went from the scene. In the cross-examination, this witness Bhanwarlal was confronted with the portion 'A to B', his statement recorded by the Police under Section 161, Cr.P.C. in which he had stated-
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The witness Bhanwarlal, when confronted with the above statement, recorded under Section 161. Cr.P.C. and his statement given in court, stated that he had also told to the Police that Jodhsingh had told him regarding that murder of his brother, but, the Police might have written only about firing of gun-shot. So far as PW 12 Mithulal is concerned, he has totally denied the fact of extra-judicial confession made before the Naib-Tehsildar and was also declared hostile by the Prosecution.
9. A perusal of the above evidence can only lead to the inference that the accused Jodhsingh had made extra-judicial confession only to the extent that he had fired a gun shot and which had hit Shambhusingh on his right thigh.
10. The evidence of Dr. Ora Prakash Tak (PW 3) only shows that the cause of death of Shambusingh, in his opinion, was due to shock and haemorrhage as a result of multiple fracture of right femur caused by fire arm. There is not a single word in the evidence of Dr. Tak that the injury found on the thigh of Shambhusingh was sufficient in the ordinary course of nature to cause his death.
11. It is also note-worty that though extra-judicial confession was made before PW 2 Mohanlal, who was Patwari of Sarwad and PW 11, Bhanwarlal who was Naib Tehsildar of Sarwad at about 9.00 or 9.30 P.M. but no action was taken by them for lodging report or giving any information at the Police Station for taking further action It has also come in evidence that the Police Constable was also present with them and he could have even arrested the accused, but no action was taken on their part. Section 40, Cr.P.C. lays down the duty of officers, employed in connection with the affairs of village to make certain report. It enjoins a duty upon every officer employed in connection with the affairs of village to for with communicate to the nearest Magistrate or the officer-in-charge of the nearest Police Station, whichever is nearer, any information in respect of the commission of a non-bailable offence. We regret to observe that both PW 2 and PW 11 failed in their duty to give information, as required by Section 40, Cr.P.C. They even did not care to go on the spot and see the condition of Shambhu Singh, who must have been alive till the alleged extra-judicial confession was made by the accused Jodhsingh; nor took any steps of taking the injured Shabhusingh to the Hospital. Be that as it may, the entire evidence brought forward by the prosecution, only proves the fact that accused Jodh Singh had fired a gun shot, which hit on the thigh of Shabhusingh, which resulted in the multiple fracture. This clearly goes to show that the accused had no intention at all to commit the murder of his brother Shambhu Singh. He himself went to the Police Station and had lodged the report after firing only one gun-shot leaving his brother Shambhu Singh alive. Ought we know, PW 9 Mohanlal, Patwari and PW 11 Bhanwarlal Naib Tehsildar would have immediately gone on the spot and would have taken Shambhusingh for medical help, specially when they had a jeep with them; the life of Shambhusingh could have been saved. There was no immediate cause or motive for committing murder of Shambhusingh and even if the facts stated in the FIR are taken to be correct, it was Shambhusingh who had unnecessarily raised quarrel with the accused and had started hurling abuses and also made an attempt to give beating to the accused.
12. As already mentioned above, the Doctor has not stated a single word that the injury in question was sufficient in the ordinary course of nature to cause death of Shambhusingh, Thus, we are clearly of the opinion that the accused, in the above facts and circumstances, cannot be convicted under Section 302, IPC and only offence committed by him falls under Section 326, IPC.
13. The accused-appellant was arrested on June 15, 1975 and was released on bail by this Court on May 19, 1978 and as such, he has remained in jail for a period of nearly three years. As already a period of more than I nine years had elapsed, the ends of justice would meet if the accused-appellant is awarded the sentence of imprisonment for the period already undergone by him.
14. In the result, this appeal is allowed in part. The judgment of the learned Sessions Judge dated March 12, 1976 is set aside and the conviction and sentence of the accused Section 302, IPC is quashed and instead, he is convicted under Section 302, IPC and is awarded a sentence of imprisonment of the period already undergone by him. As the accused-appellant is already on bail, he is not required to surrender to the bails bonds. His bail bonds are discharged.