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2006 DIGILAW 1048 (GAU)

Jagadish Medhi v. State of Assam

2006-11-24

B.D.AGARWAL

body2006
JUDGMENT B.D. Agarwal, J. 1. The sole appellant Sri Jagadish Medhi stands convicted under Section 307, I.P.C. vide judgment and order dated 30-9-2004 passed by Smt. M. Choudhury, the then learned Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No. 17(K)/2000. By the impugned judgment the appellant has been sentenced to undergo R. I. for 5 (five) years and also to pay a fine of Rs. 1,000/-, in default sentenced for another 2 (two) months R. I. Simultaneously the appellant has also been convicted under Section 447, I.P.C. and further one month R. I. has been awarded. 2. Aggrieved with the conviction and sentence the accused has preferred this appeal. I have heard Mr. C. R. Dey, learned Sr. counsel for the appellant. I have also heard Mr. B.S. Sinha, learned Addl. P.P., Assam for the State. I have also gone through the impugned judgment and evidence of witnesses. 3. As could be gathered from the record the incident took place in the early morning of 18-1-1995. At the relevant time, the appellant was working as a constable in the Railway Protection Force (in short, RPF). The injured Borkat Ali's father Saukat Ali (PW 1) was also an employee of RPF. Both the appellant and the informant were living in official quarters which were situated at Maligaon, Guwahati. It is the prosecution case that in the early morning the appellant entered the compound of the injured in an angry mood and fired as many as three gunshots. One gunshot hit the chest of the injured causing physical injury. Consequently the injured had to take two weeks medical treatment. 4. The FIR was lodged on the vary same day at about 1.30 p.m., specifically naming the appellant as the assailant. This FIR was registered as Jalukbari P.S. Case No. 19/1995 Under Section 447/326/307, IPC. After the charge-sheet, the appellant was accordingly tried and he has been convicted under Ss. 447 and 307, IPC. In my considered opinion, if the accused is convicted under Section 307, IPC there is no need to convict the same persons under Section 326. Hence, the appellant has been rightly not convicted Under Section 326, IPC separately. 5. Sri C.R. Dey, learned Sr. counsel for the appellant submitted that there are material discrepancies regarding the place of occurrence. In my considered opinion, if the accused is convicted under Section 307, IPC there is no need to convict the same persons under Section 326. Hence, the appellant has been rightly not convicted Under Section 326, IPC separately. 5. Sri C.R. Dey, learned Sr. counsel for the appellant submitted that there are material discrepancies regarding the place of occurrence. The learned Counsel has also submitted that the incident took place in the midst of scuffle and the appellant had no intention to fire any gunshot to kill PW 2. 6. From the record I find that the prosecution examined altogether 11 witnesses. PW 1 is the father of the injured; PW 2 is the injured himself; PW 3 is the Medical Officer; PWs 4 to 7 are the RPF constables and remaining witnesses are police officers, who had taken part in the investigation at different stages. 7. The defence case in the trial Court was that PW 2 sustained gunshot injury accidentally. However, no counter evidence was proffered to be establish this alibi. Besides this, the witnesses, who are the colleagues of the appellant, have also not supported the theory of accidental injury. 8. From the impugned judgment and the record I find that the appellant has admitted the fact that he was involved with the injured in the alleged scuffle. Admittedly no third person was involved in the incident. The accused did not project any counter story that PW 2 must have received bullet injury at some other place and in some other incident. 9. Hence, the first question which falls for my determination is whether the gunshot came out of the riffle accidentally. 10. All the constables of RPF have corroborated the fact that minutes before the incident the appellant had collected his rifle and ammunition from the office. From the evidence I find that the appellant was carrying 303 rifle. The mechanism of this rifle is such that after firing of one bullet, some manual adjustment has to be done to put the second bullet for firing. The accused has nowhere clarified during the trial or in his statement under Section 313, Cr.P.C. that it was an automatic rifle. From the evidence, I also find that as many as three gunshots were fired. PWs 1 and 2 have spoken about firing of three gunshots and this has also been corroborated by the RPF constables. The accused has nowhere clarified during the trial or in his statement under Section 313, Cr.P.C. that it was an automatic rifle. From the evidence, I also find that as many as three gunshots were fired. PWs 1 and 2 have spoken about firing of three gunshots and this has also been corroborated by the RPF constables. Not only this, the investigation officer has also seized three empty cartridges from the place of occurrence. Had it been a case of accidental fire only one bullet could have come out due to accidental triggering. However, evidence shows that the appellant had fired thrice out of which two was directed towards the injured. Fortunately, one bullet missed the target and one hit the person of the injured. Hence, I hold that the learned trial Court has rightly rejected the story of accidental firing. 11. The next question which needs to be examined is whether the appellant had fired the gunshot with any intention to kill Borkat Ali (PW 2). It is needless to say that there cannot be any direct evidence to prove the intention of the assailant. If a person causes any act with intention or knowledge that his act can cause death of a person, he would be guilty of attempted murder. The law in this regard has been lucidly laid down by the Hon'ble Supreme Court in the case of State of Maharashtra v. Balram Bama Patil 1983 CriLJ 331. The relevant observations of the Apex Court can be fruitfully reproduced below: To justify a conviction under Section 307 it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 12. Again in the case of State of Madhya Pradesh v. Saleem 2005 CriLJ 3435, the Apex Court has reiterated that infliction of bodily injury sufficient to cause of death is sufficient to bring the said offence within the mischief of Section 307, IPC. Their Lordships have further observed that causing of bodily injury is not necessary and some overt act in execution thereof would be sufficient to bring the offence within the parameters of Section 307. 13. In the case before us, the overt act of gunshots was repeated thrice. The Medical Officer has also corroborated the fact that the injury found on the person of PW 2 was the result of bullet injury. I would like to add here that had the bullet injury hit the injured on the middle of his chest, i.e. a little inside the actual site of the wound of PW 2 in all probability he would have succumbed to the injuries. At the same time no delay was caused in giving medical treatment to the injured and this had saved his life. Be that as it may, the fact of firing two gunshots towards the inured and that too without any provocation would not take out the offence from the rigors of Section 307, IPC. Accordingly I sustain the conviction under Section 307, IPC. 14. Coming to the question of sentence, Mr. Dey, learned Sr. counsel for the appellant submitted that the appellant is the only earning member of his family, having children. Accordingly I sustain the conviction under Section 307, IPC. 14. Coming to the question of sentence, Mr. Dey, learned Sr. counsel for the appellant submitted that the appellant is the only earning member of his family, having children. Besides this the informant and his injured son conspicuously remained silent to disclose the motive for injuring PW 2. Possibility of picking up quarrel by the appellant on certain provocation from the side of the injured and the informant also cannot be totally discounted. Besides this the appellant is likely to lose his job for his conviction in a criminal case. Considering all these aspects I am persuaded to reduce the sentence to 4 (four) years of imprisonment under Section 307, IPC. The accused has been awarded only one-month imprisonment for his conviction under Section 447, IPC. It will not affect the total sentence. Accordingly the same is maintained. 15. For the aforesaid reasons the appeal stands dismissed. However, the period of R.I. awarded under Section 307 of the Indian Penal Code is reduced from 5 (five) years to 4 (four) years. 16. Send down the LCR with a copy of the judgment. Appeal dismissed.