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2002 DIGILAW 467 (ORI)

KANDRA SABAR v. STATE OF ORISSA

2002-07-30

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The accused in S.C. No. 104 of 1993 of the Court of Addl. Sessions Judge. Jeypore u/s 302. IPC has challenged the order of conviction and sentence directing him to undergo imprisonment for life. 2. The prosecution case as narrated in the FIR is as follows: On 9.12.1992 (Wednesday) at about 3.00 P.M. P.W.1 alongwith deceased Arjun Gomango had gone to Kadibur Dongar with a catapult to kill birds. While both of them were sitting on a piece of stone in that Dongar and watching birds, a gun shot sound was heard and immediately within a flickering movement of the eyes the deceased fell down saying that he is sinking down and asking P.W.1 to flee away. P.W.1 immediately noticed the accused firing the gun aiming at them from a distance of about 30 feet. Out of fear P.W.1 ran away towards the village and some time after narrated the incident to P.W.3. the father of the deceased, who in turn informed P.W.9. the Ward Member of the village, about the commission of murder by the Appellant with the help of a S.B.M.L. gun. Subsequently P.Ws. 3, 8 and 9 alongwith other villagers sent to 'Kadibur Dongar' and noticed the dead-body of Arjun Gomango lying at the spot. On the following day (Thursday) at about 11.00 A.M. P.W.9 went to the O.I.C. Padampur Police Station and orally reported before him about the incident. The O.I.C. reduced to writing the oral report and treated the same as FIR (Ext. 8) on the basis of which the case was registered. The O.I.C, Padampur police Station proceeded to the scene of occurrence, held inquest over the dead-body, sent the dead-body for post mortem examination to Sub-Divisional Headquarters Hospital at Gunupur, seized the gun and also blood-stained earth and sample earth and after completion of investigation, placed the charge-sheet against the Appellant as well as Anr. accused. Since the other accused. Saria Sabar died during the pendency of the trial, the case abated against him. The learned Addl. Sessions Judge on a careful appraisal of the evidence on record, however, held the Appellant guilty of offence punishable u/s 302. IPC and u/s 25(1)(a) of the Arms Act and sentenced him to undergo imprisonment for life for commission of murder of Arjun Gomango and 2 years' further rigorous imprisonment for illegal possession of the gun. The learned Addl. Sessions Judge on a careful appraisal of the evidence on record, however, held the Appellant guilty of offence punishable u/s 302. IPC and u/s 25(1)(a) of the Arms Act and sentenced him to undergo imprisonment for life for commission of murder of Arjun Gomango and 2 years' further rigorous imprisonment for illegal possession of the gun. Both the sentences were directed to 'un concurrently. 3. Mr. Panda, learned Counsel appearing for the Appellant, has argued with vehemence that in this case there has been absolutely no evidence to indicate that the Appellant had any intention to cause the death of Arjun Gomango. Further there has been no evidence whatsoever to establish that the Appellant had any enmity with the deceased prior to the incident nor has there been any evidence to show that the gun was shot aiming at the deceased. It is rather established from the evidence of P.W.1 that he and the deceased went to Kadibur Dongar for shooting birds by catapult (batuli). While they were sitting on a stone, the sound of gun-shot was heard and the deceased directed P.W.1 to leave away the place since he got injury out of the gun-shot. While he was running away from the place, he found the Appellant holding the gun with smoke emitting therefrom. On a careful examination of his evidence it is established that the Appellant had his maize crop (Jana crop) near the place of occurrence and he had gone to watch off maize crop (Jana crop) which was ripe at that time. Thus the plants were more than 6 feet high, that is to say. a man's height. There were several other trees within the land over which Jana crops were raised. P.W.1 and the deceased were sitting on the Stone looking for the birds through the tree. They had hidden themselves inside the Jana Plant leaves from the sight of the birds. Therefore, it was quite likely that the Appellant and the other accused could not have seen P.W.1 and the deceased. There is no reason why the Appellant would shoot at the deceased intentionally. The Appellant must have been under the impression that some wild bear might be damaging his crop and as such he shot the gun of the other accused. There is no dispute that Sana Sabar was holding the licence of the S.B.M.L. gun (M.O.I). There is no reason why the Appellant would shoot at the deceased intentionally. The Appellant must have been under the impression that some wild bear might be damaging his crop and as such he shot the gun of the other accused. There is no dispute that Sana Sabar was holding the licence of the S.B.M.L. gun (M.O.I). From the opinion of the ballistic expert, it is also not possible to ascertain whether any bullet was shot from M.O.I due to lapse of time. Be that as it may since P.W.1 has stated that the Appellant had shot from M.O.I. therefore, we need not go into such detail. But since there has been no evidence that the Appellant had intentionally aimed at the deceased, therefore, he must have shot under mistaken identity. Therefore, in the aforesaid situation, the Appellant must be held guilty to have committed an offence u/s 304-A of the Indian Penal Code. It has been also established that the Appellant was having illegal possession of the gun belonging to Saria Sabar. 4. In the result, the appeal is partly allowed, and accordingly, we modify the conviction and sentence from one u/s 302. IPC and u/s 25(1)(a) of the Arms Act to Section 304-A. IPC and Section 25(1)(a) of the Arms Act. Since the Appellant has already undergone sentence of more than two years, he be set at liberty forthwith. P.K. Misra, J. 5. I agree.