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2015 DIGILAW 941 (CAL)

Nemai Hembram v. State of West Bengal

2015-12-02

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2015
JUDGMENT : Aniruddha Bose, J. 1. In this appeal, the appellant questions the legality of a judgment of his conviction on being held guilty of an offence punishable under Section 302 of the Indian Penal Code, and his consequential sentence of imprisonment for life along with fine of rupees five thousand. In default of such payment, he has been directed to undergo simple imprisonment for six more months. The judgment has been delivered by the Sessions Judge, Bankura on 14th February 2006 in Session Trial No. 12 of July 2001 arising out of Session Case No. 19 of June 2001. 2. At the material point of time the appellant accused was a constable on sentry duty at Gorabari outpost under Khatra Police Station in the district of Bankura. Charge against him is that he had caused death of one Ganesh Pal, who was on a pleasure trip to Mukutmanipur, by firing at him on 2nd January, 2000 at about 5.30 PM from his service rifle. Case was started upon filing of a First Information Report by one Mrigankar Banerjee (who was examined by the prosecution as P.W. 2) lodged on the same evening at 6.55 PM. Prior to lodging of the FIR, the officer-in-charge of the police station himself had reached the place of occurrence on receiving information from one N.V.F. member, Sukdeb Mahata. The officer-in-charge of the said police station, Dilip Kumar Roy has deposed as prosecution witness (P.W.)8 and his deposition, he has stated that on reaching the place of occurrence, he noticed that the accused was standing aiming his rifle, at the assembling crowd. Thereafter, he was overpowered by the P.W. 8 and other police officials accompanying him, arms were seized from his possession and he was taken into custody. In his written complaint, which is the basis of the formal FIR, Mrigankar has stated that a group from Durgapur were returning from Mukutmanipur in a vehicle, Tata Model No. 608A. The vehicle was being guided by the police near the place of occurence. It appears from evidence of the prosecution witnesses that because of heavy traffic, the vehicle was diverted from the regular route and instructed by the police to enter the path towards the outpost and exit. It is the prosecution case that while taking that course, a policeman came out from inside the post and fired. It appears from evidence of the prosecution witnesses that because of heavy traffic, the vehicle was diverted from the regular route and instructed by the police to enter the path towards the outpost and exit. It is the prosecution case that while taking that course, a policeman came out from inside the post and fired. As a result of such firing Ganesh Pal, a passenger in that vehicle died. P.W. 2 has named four passengers who were injured, as Kajal Singha Roy, Uttam Bhuin, Kartick Mundari and the FIR maker (P.W. 2) himself. He has stated in his formal complaint:- “The name of police constable is Nemai Hembram, Batch No. 215.” 3. The inquest report indicates that the body was found in the rear of the truck lying with the head pointing to the east with hole on the forehead. It was after the appellant was taken into custody the formal complaint was received from the P.W. 2. The service rifle of Nemai Hembram was seized along with 19 rounds of .303 ammunition and one empty cartridge. The vehicle, bearing registration No. WB 51/0889 was also seized, and has been referred to in the seizure list as “truck”. After inquest, the body was sent for postmortem examination and the autopsy surgeon opined in the postmortem report that death was due to the effect of gunshot injury which was ante-mortem and homicidal in nature. The rifle butt as also the empty cartridge were also sent for examination by the arms expert and the arms expert’s opinion was that the barrel of the rifle had sign of firing and the empty cartridge could or may be fired through the rifle. The actual bullet was not made an exhibit and does not appear to have been recovered. 4. The prosecution has altogether examined eight witnesses, four of whom were passengers of the said vehicle. The autopsy surgeon was not examined, but another medical expert, Dr. J.N. De (P.W. 5) has proved the postmortem report, concurring with the opinion of the autopsy surgeon. Another medical practitioner, Dr. Amiya Kumar Mondal was examined as P.W. 6. He has proved the injury reports of three of the passengers being P.W. 2, Kartick Mundari (P.W. 4) and Uttam Bhuin. J.N. De (P.W. 5) has proved the postmortem report, concurring with the opinion of the autopsy surgeon. Another medical practitioner, Dr. Amiya Kumar Mondal was examined as P.W. 6. He has proved the injury reports of three of the passengers being P.W. 2, Kartick Mundari (P.W. 4) and Uttam Bhuin. So far as the injury of the fellow passengers are concerned the P.W. 2 in his deposition has stated that the bullet, after penetrating the glass of the vehicle passed over the head of one Kartick Mundari and hit Ganesh Pal, the deceased victim. The broken glass of the vehicle had caused injury to Kajal Singha Roy. All the passengers tried to save themselves by jumping out of the vehicle and P.W. 2 and Uttam Bhuin got injured in that process. None of these four witnesses, however, could actually identify the police constable who had fired the shot. In course of his cross-examination P.W. 2 stated that he came to know the name of the appellant-accused from the Barababu of the Police Station. None of the prosecution witnesses could attribute any motive or reason for such firing. Apart from the P.W. 2, the three other witnesses who were in the same vehicle and deposed as prosecution witnesses did not see the person who had fired the shot, as it transpires from their depositions. 5. The appellant, in his examination under Section 313 of the Code of Criminal Procedure denied the prosecution case. He has also produced himself as the sole defence witness and in his deposition, as recorded, he has stated:- “On 2.1.2000 I was on duty at Mukutmanipur police outpost as Saintry. The police outpost of Mukutmanipur was encircled by a fence. Some persons were saying that they would go to the outpost when I was on sentry duty. I did not allow them to take entry into the outpost. They were quite big in number. I asked them that 2/4 persons might be allowed to enter. They were saying that some persons of public and police snatched some money from their possession. When I refused to allow entry, those public entered into the outpost. There was a scuffling between me and those public. I was put down and as a result of such scuffling, the bullet went out from my rifle. I did not open fire aiming any person. When I refused to allow entry, those public entered into the outpost. There was a scuffling between me and those public. I was put down and as a result of such scuffling, the bullet went out from my rifle. I did not open fire aiming any person. I was treated at the hospital as I received injury as a result of such scuffling. I was not aware as to how this case has been started against me as I was confined in the hospital. Those persons came to the outpost against the police personnel who were on duty at the picnic spot. XX-Exam by the defence: I am stating about the matter before this Court for the first time. I did not start a case regarding scuffling as I sustained fracture injury at my leg. Not a fact that public tried to enter into the outpost forcible and to which I opposed. Not a fact that I asked them that 2/4 persons might be entered into the outpost. Not a fact that as a result of scuffle I fell down and bullet went out from my rifle accidentally. Not a fact that the person who received bullet injury was on the road, and neither near to the outpost nor at the outpost. Not a fact that the bullet did not come as a result of scuffle as alleged. Not a fact that I opened fire from my riffle deliberately and as a result one Ganesh pal, a passanger of mini-truck was hit by that bullet and expired. Not a fact that I am stating about the matter falsely to save myself from this case. Not a fact that there was no scuffle between me and the public.” 6. Appearing on behalf of the appellant, it has been argued by Mr. Siladitya Sanyal, learned advocate that the report of the arms expert does not give conclusive proof that the empty cartridge was actually fired from the rifle having butt no. 496. His submission is that the appellant has been wrongly convicted and none of the prosecution witnesses had actually identified the appellant as the person who is alleged to have fired from his rifle. So far as the Investigating Officer (P.W. 8) is concerned, he claims to have had heard of the incident from an NVF member, Sukdev Mahata but said Sukdev Mahata was not examined by the prosecution. Mr. So far as the Investigating Officer (P.W. 8) is concerned, he claims to have had heard of the incident from an NVF member, Sukdev Mahata but said Sukdev Mahata was not examined by the prosecution. Mr. Sanyal also pointed out that out of the four persons who were referred in the FIR as fellow passengers, Kajal Singha Roy and Uttam Bhuin had not been examined. It is also the case of the appellant that the entire case is built on circumstantial evidence without any motive for murder being established, and conviction in such a context was improper. Moreover, the postmortem report on materials on which the prosecution relied did not suggest recovery of any bullet and the autopsy-surgeon was also not examined. He has brought to our notice the discrepancy in the depositions of prosecution witnesses on description of the weapon of assault as also the vehicle in which the deceased was travelling. The P.W. 2 himself stated that Nemai Hembram had fired from his service revolver, but the prosecution case is that firing was made from his service rifle. P.W. 1 Rasamay Pal, who is also the seizure witness, in his cross-examination described the vehicle as Tata-sumo. Argument on behalf of the appellant is that prosecution had failed to prove beyond reasonable doubt the allegations against the accused-appellant, and they have withheld a vital witness being the NVF member Sukdev Mahata. The fact that there was crowd at the spot giving out a sense of trouble was not taken into consideration, though the P.W. 8 himself in his deposition has stated that a crowd had assembled at the place of occurence, and according to the appellant, that would establish the defence stand that a scuffle had taken place which was explained in the deposition of the appellant as DW 1. 7. Mr. Subir Banerjee learned Additional Public Prosecutor has taken us through the depositions of the prosecution witnesses as also the deposition of the appellant as D.W. 1 and submitted that the story of scuffle was an afterthought and this suggestion was not given to P.W. 1, primarily on whose evidence the First Court delivered the judgment of conviction. Mr. 7. Mr. Subir Banerjee learned Additional Public Prosecutor has taken us through the depositions of the prosecution witnesses as also the deposition of the appellant as D.W. 1 and submitted that the story of scuffle was an afterthought and this suggestion was not given to P.W. 1, primarily on whose evidence the First Court delivered the judgment of conviction. Mr. Banerjee submitted that there is admission to the effect that there was one round fired from the rifle of the appellant, and no case has been made out that any other person had opened fire at the spot which could have had led to the death of Ganesh Pal. As regards the postmortem report as also report of the arms expert, the State’s stand is that these two reports were made exhibits without any objection and such reports cannot be questioned at the trial. 8. The First Court found the question of motive to be of academic importance in this case, since death as a result of gunshot injury was established. The First Court rejected the defence of the appellant that the bullet had escaped as a result of scuffle, and that he had no control over such act. The First Court found such a story to be unreliable not backed with substantive evidence. Referring to a judgment of the Supreme Court in the case of Malkhan Singh & Ors. Vs. State of U.P. ( AIR 1994 SC 1443 ), it was held by the First Court that it is not the law that all the witnesses cited by the prosecution are required to be examined. The other judgment on which the Trial Court placed reliance is the case of Chandrika Prasad Singh & Ors. Vs. State of Bihar ( AIR 1972 SC 109 ). The third decision which was referred to in the judgment under appeal is the case of Pedda Narayan Vs. State of A.P. ( AIR 1975 SC 1252 ) in support of the proposition that it was the duty of the accused to confront the witnesses with the contradictions when they were examined and then cross- examine the Investigating Officer about those contradiction. Based broadly on these reasons, the prosecution case was believed by the First Court. 9. If we look at the sequence of events, we find that normal consequences of a criminal act were there, after the death of the victim. Based broadly on these reasons, the prosecution case was believed by the First Court. 9. If we look at the sequence of events, we find that normal consequences of a criminal act were there, after the death of the victim. The First Information Report was lodged within a short period from the time of occurence. The seizure was also made in course of investigation at the very initial stage. We do not find any reason to disbelieve the seizure list as also the postmortem report along with its content, which was proved by the P.W. 5, Dr. J.N. De. Though the autopsy surgeon himself was not questioned, we do not find any reason to doubt his opinion, as disclosed in the postmortem report, in support of which the P.W. 5 deposed. The defence chose not to cross- examine the P.W. 5. As regards cause of death we do not find any discrepancy. In the column carrying the heading “information furnished by police” the autopsy-surgeon has noted “as per inquest report”. The inquest report has been made exhibit 3 and in column 9 of the inquest report, which requires recordal opinion of witness as to cause of death it has been recorded in bengali that in the opinion of witnesses the deceased had died because of bullet injury. There is, however, no specific reference to any individual or police personnel who could have fired the bullet and one of the witnesses to the inquest is P.W. 2. In the injury reports of Kartick Mundari, Mriganka Banerjee and Uttam Bhuin, there is uniform recordal that police had shot at them at that point of time, that is on 2nd January, 2000 at about 5.30 PM, though in the case of Mriganka Banerjee the time of assault is recorded as 5.55 PM. 10. Thus occurence of the incident at the place of occurence and death of the victim as a result of bullet injury in our opinion have been proved. Now the question arises as to whether it was the appellant who had fired the shot from his rifle or not? 10. Thus occurence of the incident at the place of occurence and death of the victim as a result of bullet injury in our opinion have been proved. Now the question arises as to whether it was the appellant who had fired the shot from his rifle or not? If we go on the basis of evidence adduced by the prosecution, we find that the P.W. 1 and P.W. 3 have referred to a bullet hitting Ganesh Pal in their depositions whereas P.W. 4 who was also been examined as a spot witness has referred to hearing a sound followed by a broken glass hitting his forehead and death of one of the passengers, without any reference to a bullet injury. The P.W. 1 and P.W. 3 have not deposed on the source of the bullet but P.W. 2, in his examination-in-chief gave the name of the appellant, Nemai Hembram, constable No. 215, as the person who did the firing from his service revolver. In his cross-examination, he stated:- “I came to know the name of the person from the Bara Babu of the P.S. It is not possible for me to identify that person.” 11. The Investigating Officer, being the Officer-in-charge of the Police Station (P.W. 8) in this case has disclosed the source of information about the identity of the accused in his examination-in-chief. He has stated:- “On the day i.e. on 2.1.2000 at about 1735 hours that I received an information through N.V.F. Sukdeb Mahata that Constable 215 Nemai Hembram who was on Sentry duty at Gorabari out-post opened one round of fire from his service Rifle. Butt No. 496 causing death of a person.” 12. Thus the appellant has not been identified by any eye- witness of the incident or other witnesses examined by the prosecution. The fact that a bullet was fired from his service rifle, in our opinion stands established from the seizure list, and also the report of the arms expert. Now comes the question as to whether that bullet had struck the deceased, Ganesh Pal or not. The evidence of the P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 8 and also the FIR and the inquest report corroborate the prosecution case on the point of there being firing and the death having occurred around the same time and at the place of occurence itself. The evidence of the P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 8 and also the FIR and the inquest report corroborate the prosecution case on the point of there being firing and the death having occurred around the same time and at the place of occurence itself. The report of the arms expert, though not conclusive indicate that the empty cartridge could be fired through the seized rifle, and there is sign of firing from the seized rifle. Though there is no recovery of bullet, the postmortem report identifies the injuries to have resulted from the effects of gunshot and there is reference to an exit wound. But there is no evidence that it was that bullet which had hit the deceased. There is also no eyewitness identifying the appellant firing from his rifle. The prosecution evidence against the accused is circumstantial in nature. The missing link in the chain of events, if we do not take into account the deposition of D.W. 1, is lack of evidence of the appellant-accused firing the shot and simultaneously hitting the victim which would have established the guilt of the appellant beyond reasonable doubt. Moreover, the NVF member, who according to the P.W. 8 had informed him of firing by the appellant has not been examined by the prosecution. He would have been a vital witness, but has been withheld by the prosecution. P.W. 2 has attributed identification of the accused by name to “Barobabu” of the police station. He has not explained who this “Barobabu” is. But to import our knowledge on terminology pertaining to police administration from public domain, the officer-in-charge of a police station is referred to as “Barobabu”. The Officer-in-charge has deposed as P.W. 8, but the P.W. 8 in his deposition has remained silent on the point of having informed the P.W. 2 the name of the appellant. P.W. 8 is also not an eyewitness to the incident of firing. He had heard of such firing from the N.V.F. member, whose name we have referred to earlier in this judgment. In the event by referring to “Barobabu” the P.W. 2 had meant any other person, such person has also not been examined by the prosecution. In this factual background, relying on the deposition of the P.W. 2 and the other circumstances we have already discussed, conviction of the accused in our opinion would have improper. In the event by referring to “Barobabu” the P.W. 2 had meant any other person, such person has also not been examined by the prosecution. In this factual background, relying on the deposition of the P.W. 2 and the other circumstances we have already discussed, conviction of the accused in our opinion would have improper. 13. So far as firing from his own service rifle is concerned, through his own deposition, the D.W. 1 has confirmed it. He has also deposed that the bullet went off as a result of a scuffle. We shall deal with the question now as to whether to believe the defence case that the bullet was fired accidentally as a result of such scuffle or not. The P.W. 2, as we have already stated, is the main witness of the prosecution and no suggestion was put to him as regards scuffle. So far as P.W. 1 P.W. 3 and P.W. 4 are concerned, there was also no suggestion to them to that effect. Such suggestion was put, however, to the P.W. 8, being the Investigating Officer in course of his cross-examination, and he is an important witness. In his cross-examination the P.W. 8 stated:- “XX-Exam:- I cannot say whether Mukutmanipur was previously known as the area of Jharkhand or not. I had no report about J.M.M Activists at that area at the relevant point of time. The riffles are supplied to the constables and police personnel to protect themselves and Thana. Police personnel, who is entrusted with the duty to look after the safety of police gives caution to the mass if assembled and try to entry into the P.S.. The Police-station falls within protected area. Constable was injured. He was hospitalized. Not a fact that we were compelled to start a case against this accd. to pacify the mass agitation and under some pressure. Not a fact that I did perfunctory investigation and submitted charge-sheet. Not a fact that the accd. was attacked and as a result he sustained injury. Not a fact that there was scuffle between the accd. and mass. Not a fact that the mass tried to snatch the riffle and in that process bullet went off from the riffle resulting in casualty. Not a fact that the accd. has been planted in this case to save ourselves.” 14. Not a fact that there was scuffle between the accd. and mass. Not a fact that the mass tried to snatch the riffle and in that process bullet went off from the riffle resulting in casualty. Not a fact that the accd. has been planted in this case to save ourselves.” 14. The First Court found the explanation of the appellant of accidental firing as a result of scuffle to be unacceptable. The First Court also found no reason as to why the members of the police force would depose against him as there was no inimical relationship between the two police personnel who deposed as prosecution witnesses and the appellant. Apart from P.W. 8, N.N. Nahata, who at the material time was sub- inspector of police posted at Khatra police station was also examined as P.W. 7. He has proved the written complaint, and he had registered the formal FIR. The First Court also rejected the defence case that there was a scuffle as a result of which there was accidental firing referring to the forwarding report to the Court dated 3rd January 2000, where it was recorded that there was nothing to suggest that the accused was injured and treatment was given to him in respect of such injury. Relying on the judgment of the Supreme Court in the case of Pedda Narayan (supra) the First Court found that lack motive was not significant as, in the opinion of the First Court, there was evidence to establish that the injury on the forehead of the victim must have been inflicted as a result of an over act on the part of the appellant and the sequence of circumstances showed that the accused opened fire intentionally. 15. In this case, what remains undisputed is death of the accused by gunshot injury. There are four witnesses (P.W. 1, P.W. 2, P.W. 3 and P.W. 4) who have deposed that they had seen the bullet had hit the deceased. Barring P.W 2, however, none of the witnesses in course of their depositions could identify the source of the gunshot. P.W. 2 in his examination-in-chief had named the appellant as the policeman who had fired the shot from his service revolver. Barring P.W 2, however, none of the witnesses in course of their depositions could identify the source of the gunshot. P.W. 2 in his examination-in-chief had named the appellant as the policeman who had fired the shot from his service revolver. His description of the weapon as a revolver and not a rifle introduces an element of discrepancy in his deposition, but not of great significance since the rifle was seized and it was established that there was sign of firing. Though the P.W. 2 had named the appellant as the policeman who fired the shot in the written complaint which formed the basis of the formal FIR he could not identify the appellant. In response to the question as to how he came to know the name of the appellant, in his cross-examination he stated that he came to know of the name from the “Barababu” of the police station. The Investigating Officer who was the officer-in-charge of the police station, being P.W. 8 had reached the spot or place of occurence immediately after the occurrence of the incident, before lodging of the FIR. As per his deposition, he had received the information from said Sukdev Mahata. Sukdev Mahata, as we have already observed, has not been examined. Thus barring the matching of the empty cartridge with the rifle and the opinion of the arms expert that there was firing from the rifle seized from the appellant we do not have any direct evidence from the prosecution side implicating the appellant in the offence with which he was charged. The First Court rightly opined that in the event the act leading to death intentionally was factually proved the motive would be insignificant. But in this case, we cannot be free from doubt that it was the appellant who had fired the shot that killed the victim. 16. The appellant, in his own deposition stated that a bullet went out of his own service rifle. Mr. Sanyal, learned counsel for the appellant argued that conviction should be based on the prosecution witness as the onus is primarily on the prosecution to prove the charges and in the event the prosecution case does not establish the allegation, evidence adduced by the defence cannot be anchored on for establishing the prosecution case. Mr. Sanyal, learned counsel for the appellant argued that conviction should be based on the prosecution witness as the onus is primarily on the prosecution to prove the charges and in the event the prosecution case does not establish the allegation, evidence adduced by the defence cannot be anchored on for establishing the prosecution case. In our opinion, the evidence of the appellant cannot be altogether discarded as what appears from evidence of such deposition is not independent incriminating material but some form of explanation as regards firing of the shot. The First Court relied on the judgment of the Supreme Court in the case of Chandrika Prasad Singh & Ors. Vs. State of Bihar ( AIR 1972 SC 109 ) to contend that the onus to establish alibi is on the accused, and the story of scuffle narrated by the accused in his deposition was not sufficient to discharge the onus. In our view, what the appellant sought to bring on record through his deposition is not an alibi but an explanation about firing from his service rifle. In the treaties on evidence “EVIDENCE IN TRIALS AT COMMON LAW” by JOHN HENRY WIGMORE (in the first Indian edition, 2008), ‘Alibi’ has been explained as:- “Alibi. The theory of an alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged and therefore with personal participation in the act. Thus, the evidentiary fact is a new affirmative proposition, considered as a factum probandum, though its logical operation is a negative one.” The appellant, in the part of his deposition relating to scuffle was not trying to set up an alibi, as he was present in the place of occurrence when the firing took place. 17. The appellant in this case, as we have already observed, has sought to explain how the bullet left his service rifle and in the process has ended up filling up a gap in the prosecution case that it was actually he who was in possession of the rifle from which the gunshot was fired at the material point of time. The First Court has treated his defence of scuffle to be an alibi, which is required to be established with the same degree of proof as is required to be established in case of a regular offence by the prosecution. The First Court has treated his defence of scuffle to be an alibi, which is required to be established with the same degree of proof as is required to be established in case of a regular offence by the prosecution. But we do not think by his evidence the appellant has sought to present an alibi but he has spoken of such circumstances to prove his innocence. The ratio of the decision of the Supreme Court in the case of Chandrika Prasad Singh (supra) is not applicable in the given facts of the case. The degree of proof required of the appellant is not as high as that of the prosecution to sustain his defence that the bullet went off as a result of a scuffle. On behalf of the prosecution it was argued that this defence is an afterthought, but we find from cross-examination of the P.W. 8 that suggestion was put to him about the scuffle. The appellant, in his deposition, has stated that he got injured after the scuffle and his injury has also been admitted by the P.W. 8 in his cross-examination. P.W. 8, however, in his examination-in-chief did not disclose that the appellant was taken to a hospital after taking him into custody. Neither has the P.W. 8 stated the manner in which the appellant got injured, though in cross-examination he admitted his hospitalization. Earlier in this judgment we have reproduced the statements made by the P.W. 8 in his cross- examination. 18. If we accept the evidence of the appellant as D.W. 1 that the bullet went off from his rifle, that would confirm that a bullet was fired from his rifle, which is also the opinion of the arms expert. But there is no evidence that it is the same bullet, the empty cartridge of which was found and examined by the expert, had killed the victim. There is no matching of the bullet which could be fired from the service rifle of the appellant with the gun shot injury of the victim. We also do not think we can ignore the evidence of the appellant that he was injured in a scuffle, as he had suffered injury and his hospitalization was also admitted by the P.W. 8. We also do not think we can ignore the evidence of the appellant that he was injured in a scuffle, as he had suffered injury and his hospitalization was also admitted by the P.W. 8. It is true that the defence has not led any evidence of there being any parallel firing, but for this reason alone we would not like to discard the defence case altogether on this point, particularly since the prosecution in this case has not come forward with the whole story. The prosecution has not examined the N.V.F. member. The name of the appellant has been prompted to the FIR maker. The injury of the appellant has not been disclosed. The prosecution seems to have been concealing something. We accordingly accept the defence case that there was a scuffle as a result of which a bullet went off from his service rifle and it was not an intentional firing intended to kill or aimed at any individual. Evidence before us is not sufficient to prove beyond reasonable doubt that the appellant had fired the shot intending to kill the victim and the victim had died as a result of a bullet injury, which bullet was fired from the service rifle of the appellant. 19. We accordingly hold on the basis of materials on record, that the appellant cannot be held guilty of the offence under Section 302 of the Indian Penal Code with which he has been charged and convicted and sentenced by the First Court. We set aside the judgment under appeal and allow the appeal. The appellant is on bail. Let bail bond be discharged. 20. Urgent Photostat certified copy of this judgment and order be given to the parties expeditiously, if applied for. The lower Court Records along with a copy of this judgment shall be sent down forthwith to the Trial Court. Sankar Acharyya, J. : I agree.