JUDGMENT
S.D. Anand, J.
1. Appellant Joginder Singh is in appeal against his conviction by the learned Trial Judge for offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Khushwant Singh, a co-accused of the appellant, was acquitted by the learned Trial Court.
2. The precise prosecution allegations, at the trial, may be indicated in the first instance. On 30.10.1996, at about 6.30 P.M., PW 3 Nirmal Singh was present at his house. Baldev Singh and Sukhchain Singh were also available over there at that point of time. Appellant Joginder Singh came over there while he was armed with a double barrel gun. On the exhortation of the acquitted accused Khushwant Singh to teach a lesson to Sukhchain Singh for not providing the ‘path’, the appellant fired a shot which hit right leg of Baldev Singh. When the appellant tried to fire another shot, Sukhchain Singh pushed the barrel of the gun upwards and the shot came to be fired in the air. The appellant, thereafter, fled the spot and carried along the gun. Baldev Singh was in the process of being removed to a hospital at Amritsar in a tractor trolley when he died.
3. The prosecution examined PW 1 Dr. Tejwant Singh, PW2 Sukhchain Singh, PW 3 Nirmal Singh and PW 4 SI Avtar Singh.
4. PW1 Dr. Tejwant Singh, who had conducted the post-mortem examination on the dead body of Baldev Singh, found the following antemortem injuries on the dead body:
1. A wound measuring 3 cm x 2.5 cms was present on the right thigh in its lower part 5 cms above the upper margin of patella on its front surface. The margins of the wound were inverted and irregular. A fine ring of blackening was present around the margins. The clotted blood was present.
2). A lacerated wound with everted margins irregular in shape was present on the posterior surface of lower part of right thigh involving right popleteal fossa. It measured 18 x 09 cms at its widest p Article Clotted blood was present in the wound. On dissection of injuries No. 1 and 2, a track communicating injury No. 1 and No. 2, was present horizontally traversing from front to backward. The underlying muscles were lacerated and everted at the posterior surface. The right finger at its lower end was fragmented into chips. Both the condyles were fractured. The knee joint was exposed. The ligaments and right femoral blood vessel and nerve were ruptured and ragged. The potella, upper end of right tibia and fibula were intact. Three pallets recovered from the wound during dissection were removed and packed and sealed in a glass veil with one seal on it.
5. Dr. Tejwant Singh further opined that death had occurred on account of shock and haemorrhage due to fire arm injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature.
6. PW 2 Sukhchain Singh and PW 3 Nirmal Singh had witnessed the impugned occurrence. The case was investigated by PW 4 SI Avtar Singh, who was, at the relevant time, posted as SHO, Police Station, Kang. Affidavits Ex.PJ, Ex.PR and Ex.PS of Constable Pawan Kumar, MHC Gurinder Singh and Constable Sukhbir Singh respectively are of formal character.
7. The learned Trial Judge, on appraisal of the material obtaining on the file, acquitted Khushwant Singh accused but convicted the appellant.
8. Ms. Baljeet Mann, learned Counsel appearing on behalf of the appellant, argues that the prosecution evidence itself is indicative of the fact that the appellant was not inclined to kill the deceased. In support of the advocated view, our attention has been drawn to the fact that the appellant fired only one shot on the right thigh. If the appellant had the motive to kill the deceased, the argument proceeds, he could have refrained from aiming the shot at a non-vital part of the body and could have shot on a vital part of the body of the deceased. It is also argued that if the appellant was so inclined, he could have fired successive shots upon the deceased.
9. We find ourselves in agreement with the plea advocated on behalf of the appellant. Though it is obvious that the appellant wanted to hurt the deceased, the fact that he fired a shot only on a non-vital part of the body is indicative that he did not intend causing the death of the deceased. As apparent from the record, the gun contained a larger number of cartridges, all of which were forwarded to the Forensic Science Laboratory, which opined that two 12 bore cartridges were proved to have been fired from the gun which the appellant got recovered in pursuance of a disclosure statement and which constituted the weapon of offence. As per the testimony of PW 2 Sukhchain Singh, the other shot was fired by Khushwant Singh (the acquitted accused) by taking the gun from his father. The sum total of the evidence is that it was only one shot which was fired by appellant Joginder Singh.
10. In the light of the foregoing discussion, we would uphold the finding of conviction but alter the offence from Section 302 IPC to Section 304-II IPC. For that offence, appellant Joginder Singh shall stand sentenced to undergo rigorous imprisonment for a period of ten years and shall also pay a fine of Rs. 1 lac (one lac rupees) which, on being realised, be paid to the wife of the deceased, as compensation.