JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. I.H. Laskar, learned Counsel appearing for the Appellant. The State is represented by the learned Addl. Public Prosecutor Mr. B.B. Gogoi. 2. Following the death of the accused Appellant during the pendency of the appeal, on permission being granted under the provisions of Section 394 of the Code of Criminal Procedure this appeal is being pursued by the wife of the deceased Appellant. 3. Appeal is filed to challenge the judgment and order dated 26.11.2009 in Sessions Case No. 46(M)/2006 rendered by the learned Addl. Sessions Judge (FTC) No. 1, Tinsukia, whereby the accused was convicted under Section 307, IPC and sentenced to undergo R.I. for 4 years and a fine of Rs. 2,000, in default of payment of fine, to suffer further additional imprisonment for 2 months. 4. The criminal process was set in motion with filing of a FIR on 25.8.2002 with the Pengeree police station by Sushil Ranjan Nath, a constable of the 1st Assam Police Battalion ('the 1st A.P. Bn.') with the information that at about 11:20 a.m. while constable Ajit Borman was taking lunch inside the barrack, Havildar Girish Konwar fired 9 rounds at him causing grievous injuries on Ajit Borman. Thereafter the injured was removed to Pengeree hospital for treatment. After registering a case against the accused under Sections 326 and 307 of the IPC, investigation was carried out and charges under Sections 326 and 307 was filed against the accused. 5. As the accused pleaded not guilty, the trial commenced during which 13 witnesses were presented from the prosecution side whereas none was produced in support of the defence. The accused was thereafter examined under Section 313 of the Code of Criminal Procedure where the accused stated that Ajit Borman received bullet injuries through accidental firing of his carbine and there was no intention by the accused to fire at his colleague constable. 6. The Appellant before this Court submits that it is a case of accidental firing during the uncharging of the carbine at lunch break in the 1st A.P. Bn. and there was no intention at all to cause any injury or to take the life of injured constable. In support of his contention, Mr. 6. The Appellant before this Court submits that it is a case of accidental firing during the uncharging of the carbine at lunch break in the 1st A.P. Bn. and there was no intention at all to cause any injury or to take the life of injured constable. In support of his contention, Mr. I.H. Laskar refers to the evidence of the injured constable Ajit Borman (PW7) from where it is pointed out that the victim and the accused were in a good terms for last several years. It is also pointed out that the injured constable did not say that the accused deliberately fired at him. 6.1 The evidence of the PW2, PW3, PW4 and PW6 are also referred to by Mr. Laskar the learned Counsel to show that although these witnesses were stated by the injured constable to have been present at the time of the incident, each of these witnesses indicated their ignorance about how the firing took place. 6.2 The evidence of PW12, the Investigating Officer of the case is also relied upon by the learned Counsel for the Appellant to show that the said witness who immediately reached the place of occurrence was informed that during the lunch recess, while his carbine was being uncharged by the accused, the bullets accidentally triggered from the carbine hit the injured constable. From the cross-examination of PW12, it is pointed out that the victim constable did not indicate the incident to be a case of deliberate firing. 7. On scrutiny of the evidence on record and particularly the evidence of the injured constable PW7, it is apparent that none had indicated that the accused had any intention to shoot at his colleague constable. In the absence of the requisite mensrea, no crime can be said to have been committed by the accused and the defence plea of an accidental firing appears to be a more probable cause for the bullets emerging from the accused's carbine, while it was being uncharged at the time of the launch break. 8. Section 80 of the Penal Code provides that nothing is an offence which is done by an accident without any criminal intention in carrying out a lawful act with proper care and caution. In this case there is nothing on record to show that the accused had not exercised proper care and caution, while uncharging his carbine. 8. Section 80 of the Penal Code provides that nothing is an offence which is done by an accident without any criminal intention in carrying out a lawful act with proper care and caution. In this case there is nothing on record to show that the accused had not exercised proper care and caution, while uncharging his carbine. Uncharging of carbine is also required to be done after duty is over and constables are gathered to have their launch. In such circumstances, I am of the considered opinion, in the absence of any motive or intention being attributed to the accused, it is a case of accidental firing, i.e., one which is covered under Section 80. Therefore, no conviction for any crime can be sustained against the accused. 9. In view of the above finding, this Appeal stands allowed. The impugned judgment dated 26.11.2009 and the conviction of the deceased accused is set aside and quashed. The bail bond shall stand discharged. 10. The LCRs be returned forthwith. Appeal allowed