JUDGMENT AND ORDER : A.K. Goswami, J. Heard Mr. L.R. Mazumdar for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam. None appears for the respondent No. 2 despite the names of the counsel being shown in the cause-list. 2. This is an appeal against the judgment and order dated 21.2.2014 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 171/2012 convicting the appellant under Section 307 IPC and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default, simple imprisonment for another three months. 3. The appellant was a Central Reserve Force Police (CRPF) personnel. He stood trial on the accusation that while on duty on 20.4.2009 at the Family Welfare Center, CRPF, at Dayapur, he fired a round from his self-loaded rifle (SLR) at Head Constable, M.A. Beg, as a result of which he sustained grievous injury in his abdomen and left elbow. The Assistant Commandant, Dayapur Group Center, CRPF camp made a telephone call to Udharband Police Station stating that Constable Pandey had fired at one Havildar Beg and injured him and that the injured was taken to Silchar Medical College Hospital and Constable Pandey was kept confined in the camp. Based on the said telephonic information, Udharband GD entry No. 524 dated 20.4.2009 was registered (Ext. 8). Subsequently, information in writing was given by Mr. R.L. Meena, who is the Assistant Commandant, Administration, Group Center CRPF, Silchar on 20.4.2009. It is stated therein that at around 22.35 hours, the present appellant had fired from his SLR Butt No. 135, Body No. 161443632 at Head Constable M.A. Beg who was a guard at Family Welfare Center where A.K. Pandey, the present appellant was in duty from 22.00 hours to 23.59 hours. Due to the above firing incident, it is stated therein that M.A Beg had sustained injuries in his abdomen and left elbow and after the Chief medical Officer of CRPF had extended first aid, he was shifted to Silchar Medical College Hospital for further treatment and management. 4. On the basis of the said information, Udharband Police Station Case No. 59/2009 was registered under 326/307 IPC (Ext. 1). 5. During the course of investigation, seizure of the rifle, one magazine, one empty cartridge and one live cartridge were seized vide seizure list, Ext. 2. 4. On the basis of the said information, Udharband Police Station Case No. 59/2009 was registered under 326/307 IPC (Ext. 1). 5. During the course of investigation, seizure of the rifle, one magazine, one empty cartridge and one live cartridge were seized vide seizure list, Ext. 2. Sketch map of the place of occurrence was also prepared (Ext. 6). 6. On completion of the investigation, charge sheet, Ext. 7 was submitted against the appellant. 7. The case being exclusively triable by the Court of Sessions, the case was committed by the learned Magistrate in GR Case No. 1359/2009 to the Court of learned Sessions Judge, Cachar, Silchar wherein Sessions Case No. 171/2012 was registered. After hearing the parties, charge under section 307 IPC was framed. The charge being read over and explained, the appellant pleaded not guilty and claimed to be tried. 8. During trial, prosecution examined seven witnesses and the defence adduced no evidence. After conclusion of trial, statement of the appellant was recorded under Section 313 CrPC wherein he stated that he came to attend duty at around 10.20 P.M. and while he was at Sentry duty, M.A. Beg came to him and started rebuking him as a result of which a scuffle ensued in which Beg tried to snatch away his rifle and the shot had been fired accidentally. 9. PW 1 is a constable who had been allotted duty at the center from 8.00 P.M. to 10.00 P.M. and the appellant was to relieve him. PW 2 is the injured and PW 3 is the informant. PW 4 is the doctor who examined the injured on 20.4.2009 in the Silchar Medical College and Hospital. PW 5 is the armourer. PW 6 and PW 7 are police personnel, PW 6 being the Investigating Officer. PW 7 had produced the extract copy of GD entry, which was proved as Ext. 8. 10. The evidence of PW 4 goes to show that the victim sustained following injuries: “(1) An entry wound over the epigastrium 0.5 cm X 0.5 cm. size about 3 cm. left lateral to midline. An exit wound measuring 6 x 6 cm. over the left hypocondrium with intestinal and omental prolapsed with multiple fracture ribs. On exploratory leparotory - a full thickness injury over the anterior wall of stomach. (2) An extensive lacerative injury about (15 x 20) cm. size about 3 cm. left lateral to midline. An exit wound measuring 6 x 6 cm. over the left hypocondrium with intestinal and omental prolapsed with multiple fracture ribs. On exploratory leparotory - a full thickness injury over the anterior wall of stomach. (2) An extensive lacerative injury about (15 x 20) cm. size over the left elbow, extending posteriorly with entire soft tissue along with nerve and vessel injury along with comminuted supra-condylar fracture of left humerous. Spontaneous bleeding from severed left bronchial artery.” 11. Mr. L.R. Mazumdar, learned counsel for the appellant has submitted that it was incumbent on the part of the prosecution to have sent the rifle for forensic examination to establish that the shot was fired from the rifle that was assigned to, and recovered from, the appellant. He has made an alternative submission that the plea taken by the appellant in his Section 313 CrPC statement that there was a scuffle between the appellant and PW2 when PW2 had tried to snatch away his rifle and, in the process the shot had been fired accidentally, is not considered in its correct perspective by the learned trial Court, which negated such possibility by holding that the shot had been fired from a distance only on the erroneous reasoning that there was no blackening of the skin of the deceased at the entry point of the bullet. It is submitted that blackening may not take place even if shot is fired from a close range. He also contends that there was no intention on the part of the appellant to commit the offence of murder and concludes his argument by submitting that the prosecution having failed to prove the guilt of the accused-appellant beyond reasonable doubt, he is entitled to acquittal. In support of his submission Mr. Mazumdar has placed reliance on the judgements of the Apex Court in the cases of Parsuram Pandey and Others v. State of Bihar, reported in (2004) 13 SCC 189 , State of Madhya Pradesh v. Imrat And Another, reported in (2008) 11 SCC 523 , State of M.P. v. Surpa, reported in (2002) 9 SCC 447 , Hori Lal and Another v. State of U.P., reported in (2006) 13 SCC 79, and State of Manipur v. Demkhothang Touthang @ Demthang Thuthang Kuki, reported in 2006 (3) GLT 257. 12. Ms. 12. Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, has supported the impugned judgement. It is submitted by her that the evidence on record demonstrated beyond reasonable doubt that the appellant had shot at PW2, though he had taken a plea in his examination under Section 313 CrPC that the shot was an accidental shot. In the aforesaid scenario, when the firing by the appellant has become an established fact, non-examination of the rifle by an expert to ascertain whether the said rifle had been used for the firing, loses all significance. She has submitted that going by the prosecution version, when the incident of firing had taken place, only PW2 and the appellant were present. It is also apparent from the materials on record that the appellant had come late for his duty for which PW2 had searched for him. She has submitted that the theory of accidental firing, besides being an after-thought, is also not tenable as the safety-lock of the rifle would not have, in any case, unlocked accidentally and the bullet would also have not got fired accidentally at the same time. She has submitted that, in the facts and circumstances of the case, the prosecution has proved the guilt of the appellant beyond reasonable doubt and, therefore, no interference is called for with the impugned judgement. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. According to PW 4, injury No. 1 and 2 are caused by fire arms. He had referred the patient to AIIMS in Delhi. He had proved the injury report as Ext. 3 and from his evidence, it is apparent that the injured suffered grievous injury. 15. PW 5 proved the seized articles as Material exhibits and he proved the forwarding letter issued to the Deputy Superintendent of Police, Cachar, Silchar enclosing his report on the seized article as Ext. 4 and 5. 16. PW 1 had deposed that the appellant had come late for his duty which prompted him to inform PW 2. He had also deposed that when the appellant finally came he had handed over charge to the appellant and he had gone to sleep as he was to again come back for duty at 2.00 P.M. After he fell asleep for about 1/2 an hour, he heard sound of firing. He had also deposed that when the appellant finally came he had handed over charge to the appellant and he had gone to sleep as he was to again come back for duty at 2.00 P.M. After he fell asleep for about 1/2 an hour, he heard sound of firing. It came out from his evidence that the appellant was having duty from 10.00 P.M. onwards. In his cross-examination, he had stated that he had not witnessed the occurrence. 17. PW 2 in his evidence had stated that when he was informed by PW 1 that the appellant had not reported for duty on time, he went searching for him where upon the appellant started rebuking him. The appellant rang up a Subedar Major and PW 2 also conveyed to him that he had asked the appellant to report for duty. As he had proceeded to his room to go to sleep, the appellant fired at his abdomen. He was in the AIIMS for 17 months. Thus, PW 2 had pointedly attributed the rifle shot to the appellant. The appellant had also, in his statement under Section 313 CrPC, acknowledged firing but offered an explanation that it was an accidental firing due to scuffle in between him and PW 2. 18. PW 3 had deposed that the appellant had stated before him that the firing had taken place by mistake. PW3 had deposed that the rifle of the appellant was taken by the other sentries, namely, M. Hussain and Raju, who were under the control of PW2. No suggestion was given to PW3 that the appellant had not made any such statement to him. As such, evidence of PW 3 had remained um-impeached in this regard. He had also stated that others had also told that the firing had taken place by mistake. In his cross-examination he reiterated that the appellant had told him that he had fired accidentally and due to misunderstanding. 19. From the analysis of the evidence on record, it becomes evident that PW2 was injured because of a shot fired from the rifle of the appellant. 20. That apart, the contention of the appellant that the rifle, magazine and cartridge were not examined is not correct. The rifle and the cartridges were examined by PW 5 (armourer). 19. From the analysis of the evidence on record, it becomes evident that PW2 was injured because of a shot fired from the rifle of the appellant. 20. That apart, the contention of the appellant that the rifle, magazine and cartridge were not examined is not correct. The rifle and the cartridges were examined by PW 5 (armourer). No suggestion was given to him that the empty cartridge (Material exhibit-C) was not fired from the rifle (Material Exhibit-A). 21. In Surpa (supra), the Apex Court found it difficult to reconcile the recovery of the bullet from the chest cavity of the deceased and the presence of pallet injuries, as deposed to by the witnesses and, as both the bullet and the gun had been recovered, the Apex Court stated that it was obligatory, on the part of the prosecution, to have sent the same for expert examination so as to connect recovery of the licenced gun with the crime. The situation in the instant case is entirely different inasmuch as there is no dispute that the shot was fired from the rifle of the appellant. 22. Mr. Mazumdar may be right in submitting that the learned trial Court was not correct in discounting the theory of scuffle between the appellant and PW 2 only on the ground that there was no blackening of the skin at the entry point of the bullet, as, if the shot was fired at from a close proximity, there would have been inevitably blackening on or around the entry point of the bullet. In Hori Lal (supra), the Apex Court in this context had considered three authorities: (i) Modi's “Medical Jurisprudence and Toxicology” 23rd Edition - page 721, wherein it is stated as follows: "If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue no distinction can be made between one distance shot and another, as far as distance is concerned. Scorching in the case of the latter firearms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three ft. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur up to about one ft. Usually if there are unburnt powder grains, the indication is that the shot was fired from a revolver or a pistol and shorter the barrel of the weapon used the greater will be the tendency to the presence of unburnt of slightly burnt powder grains." (ii) Major Sir Geral Burrard's “The Identification of Firearms and Forensic Ballistics” wherein at page 59, it is stated as follows: "Both scorching and blackening prove definitely that the shot was fired from very close quarters, in which case an assertion by the suspected person that the deceased fired the shot himself, cannot be disproved if the weapon used was a pistol or revolver. But if it is possible to establish that the range of the shot must have been greater than the length of the deceased's arm the matter assumes a somewhat different complexion, and the evidence may be of great use in bringing a murderer to book. But if it is possible to establish that the range of the shot must have been greater than the length of the deceased's arm the matter assumes a somewhat different complexion, and the evidence may be of great use in bringing a murderer to book. The extreme limit of the blackening range is well within any normal person's arm's length, and so the absence of blackening is no proof that the shot was fired from sufficiently far away to have made it impossible for the deceased to have been clutching either the weapon, or the individual who is suspected of having held the weapon. However, the presence or absence of unburnt or partially burnt powder grains may indicate a range which is either just within or just without this critical distance; and on this account the investigation into the question of unburnt power grains may become a matter of primary importance." (iii) Russell A. Gregory's “Identification of Disputed Documents, Fingerprints and Ballistics”, 3rd Edition, wherein at page 117, it is stated as follows: "The distance from which a firearm was discharged can be judged to a limited extent. If black powder has been used the distribution of the tattoo marks made by the powder, round about the wound will give some indication as to the distance of the weapon from the wound. This will vary according to the calibre of the weapon and the make of the cartridge. If any empty cartridges have been found on the scene of the crime, similar cartridges should be tested in the suspect weapon and the distance judged by the dispersion of the pellets or distribution of unburnt powder marks. Black powder however is now rarely used in cartridges. Modern smokeless powder leaves little markings of burnt powder beyond eight to ten inches. Within this distance small particles of unburnt powder may be found entangled in the clothing or at the wound of entry. These may be of evidential value if they correspond to the powder in the ammunition found in the possession of the accused." 23. From the above, therefore, it follows that merely because there is no blackening, it cannot be said with certainty that a shot was fired from a distance. 24. These may be of evidential value if they correspond to the powder in the ammunition found in the possession of the accused." 23. From the above, therefore, it follows that merely because there is no blackening, it cannot be said with certainty that a shot was fired from a distance. 24. In Parsuram Pandey (supra), the Apex Court observed as follows: “To constitute an offence under Section 307 two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place.” 25. In the case of Imrat (supra), it was observed as follows: “16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury………..” 26. In Demkhothang Touthang (supra), when the victim was aimed at the thigh and he was indeed hit by the bullet in the thigh portion, this Court had held that there was no intention of committing murder, as, if that was the intention, the assailant would have aimed at some vital organs like head or chest. 27. In Demkhothang Touthang (supra), when the victim was aimed at the thigh and he was indeed hit by the bullet in the thigh portion, this Court had held that there was no intention of committing murder, as, if that was the intention, the assailant would have aimed at some vital organs like head or chest. 27. The plea of accidental firing or firing by mistake does not fit in with the evidence on record. There were some issues with the appellant not reporting for duty on time as a result of which PW 2 had to step in. The evidence of PW2 also goes to show that the appellant had rebuked him. PW2 had also stated that he was advised to go to sleep by his superior and forbidding him to talk to the appellant. This would indicate that the appellant was somewhat aggressive as, otherwise, PW2 would not have been advised not to speak to the appellant, who is his subordinate. Not much importance can be attached to the statement of PW3 that others had also stated that there was accidental firing inasmuch as at the time of occurrence, none was present except PW2 and the appellant. It would appear that the appellant had lost control over himself with anger and shot at PW2 and only due to sheer providence PW2 survived having been shot at the stomach after battling for life for 17 months in the hospital. 28. In view of the above discussion, I find no merit in this appeal and, accordingly, the same is dismissed. 29. Registry will send back the LCR.