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2014 DIGILAW 303 (PAT)

Ajay Singh @ Bagha Singh v. State of Bihar

2014-03-03

DHARNIDHAR JHA

body2014
JUDGMENT : Dharnidhar Jha, J.-This appeal arises out of judgment dated 7.9.1992 passed by the learned Ist Additional Sessions Judge, Motihari, in Sessions Trial No. 213 of 1991 by which the learned trial Judge held the solitary appellant guilty of committing offence under Section 307 of the Indian Penal Code and while passing sentence upon him, directed him to suffer rigorous imprisonment for five years. There was no sentence of fine imposed upon the appellant. 2. In the background of enmity on a dispute for a particular land, the informant, who happens to be the Mahanth of a temple, alleged that a panchayati was convened at the residence of one Yadolal Sah in which 13 persons named in the written report had come to participate. It was alleged that accused persons fired at the order of one Yogendra Singh, the father of the appellant to kill the Mahanth, as so long the Mahanth was alive no one was likely to be elected as the mukhiya of the panchayat. It was stated that this appellant targeted the informant by a country-made pistol and also pulled the trigger of the weapon but it did not fire, where after the accused persons ran away from the place of occurrence. 3. On the basis of written report (Ext.1), the FIR of the case (Ext.3) was drawn up and the investigation was carried out, which ultimately ended in submission of the charge-sheet and the appellant being forwarded for trial. 4. As appears from the records, as many as 16 witnesses were examined by the prosecution and some of whom were reiterating either the same fact or being tendered for cross-examination. This Court had not gone into the details as to what was the facts stated and disclosed by the witnesses. The appeal is being decided merely on admitted facts and the same being decided under the relevant provisions of the Indian Penal Code. 5. Section 307 of the Indian Penal Code more or less reads that whoever does any act with such intention or knowledge, arid under such circumstances that, if he by that act caused death, he would be guilty of murder. There are several illustrations. The relevant illustration is (c) which reads as follows :– "(c) A, intending to murder Z, buys a gun and loads it. A had not yet committed the offence. There are several illustrations. The relevant illustration is (c) which reads as follows :– "(c) A, intending to murder Z, buys a gun and loads it. A had not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this Section." 6. On perusal of Section 307 of the Indian Penal Code read with illustration (c) it appears that firing the gun to shoot the projectile, like, a bullet or pellet is the sine qua non for attracting the provision of Section 307 of the Indian Penal Code. If there is no firing, and ejectment of any bullet or pellet in case of use of a fire-arm by the accused, then there could not be the application of Section 307, IPC or in other words, the provision could not be attracted. It becomes more clear by the words "and if by such firing he wounds Z; he is liable to the punishment provided by the latter part of the first paragraph of this section". Apply the facts framed by the Legislature in illustration (c), admittedly the appellant fired from a country-made pistol and it had not fired or had misfired. The informant and witnesses stated that there was no ejectment of the projectile. The evidence further indicates that as there was no ejectment of the shot from the barrel, there was indeed no firing and what was alleged in the written report was, misfiring. In case of misfiring, it would not be a case of Section 307, IPC. 7. Above being the position factually and legally what it appears to this Court is that the learned Additional Sessions Judge, 1, Motihari, passed an erroneous judgment. 8. In the result, the appeal is allowed and the judgment of conviction passed against the appellant is set aside. The appellant is acquitted of the charge. He shall be discharged from the liability of his bail bond. Appeal allowed.