Page No.# 1/17 vs State Of Assam
2025 Latest Caselaw 6861 Gua

Gauhati High Court

Page No.# 1/17 vs State Of Assam on 1 September, 2025

                                                                               Page No.# 1/17

GAHC010212952011




                                                                        2025:GAU-AS:11725

                            THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.A./63/2011

            PUNYA KANTA DAS
            S/O SRI SINDHURA DAS, R/O BORHUJ GAON, UNDER PULIBAR POLICE
            STATION IN THE DIST. OF DIBRUGARH, ASSAM.

            VERSUS

            STATE OF ASSAM

Advocate for the Petitioner : MR.J M CHOUDHURY, MS. B SARMA, AMICUS CURIAE,MR.B
M CHOUDHURY,MS.S CHOUDHURY

Advocate for the Respondent : PP, ASSAM, ,




                                    BEFORE
                     HONOURABLE MRS. JUSTICE MITALI THAKURIA

                               JUDGMENT & ORDER (CAV)


DATE : 01.09.2025.

       Heard Mr. B.M. Choudhury, learned counsel for the appellant. Also heard Mr. P.
Borthakur, learned Addl. Public Prosecutor, Assam appearing for respondent State.


2.     This Criminal Appeal under Section 374(2) of the Cr.P.C is directed against the
Judgment and Order dated 11.03.2011, passed by the learned Sessions Judge, Jorhat in
Sessions Case No. 85 (JJ) of 2007 (corresponding to G.R. Case No. 285/2002), whereby the
appellant/accused has been convicted under Section 304 (Part I) of the Indian Penal Code
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and sentenced him to undergo R.I. for five (5) years and to pay a fine of Rs.3,000/- (Rupees
three thousand) and in default to payment of fine, to undergo R.I. for another two (2)
months.


3.    The case set up by the prosecution is to the effect that on the date of occurrence i.e.
on 04.04.2002, while UBC Constable Ziaul Islam and Constable Jogen Gogoi were on duty
near railway crossing, When they found two youths in suspicious and in intoxicated condition
and both of them were brought to the police station, where they disclosed their name as Raja
Das and Karna Chetry. When they reached at Jorhat Police Station, Constable Ziaul Islam
asked both the suspects to follow him and entered into general duty room to inform the officer.
In the meantime, the accused Punya Kanta Das, ABC 408, entered into the room from the
general duty room and asked Karna Chetry about his identity who was in the corridor of the
police station. Karna Chetry attempted to grab the carbine from the possession of Punya
Kanta Das. There was scuffle between them and in the scuffle, a fire shot from the carbine
causing injury to Karna Chetry. The injured was immediately shifted to hospital where he was
declared dead.



4.    On the basis of FIR, the Officer-in-charge of Jorhat Police Station registered a case
under Section 302 IPC against the accused Punya Kanta Das, being Jorhat P.S. Case
No.131/2002. On completion of investigation, charge sheet under Section 302 IPC was
submitted against the accused Punya Kanta Das. It is pertinent to mention herein that Punya
Kanta Das also lodged an FIR, alleging that Raja Das and Karna Chetry assaulted him and
used criminal force with an intention to prevent him from discharging his duty as public
servant. Since Karna Chetry is already dead, the case against Raja Das was registered and
after investigation, charge-sheet under Sections 353/323 IPC is laid down against Raja Das in
the cross case. This case being triable by the Court of Sessions was committed for trial.


5.    On appearance of the accused before the learned Trial Court, charge under Section
302 IPC was framed against accused Punya Kanta Das, who pleaded not guilty to the charge
framed against him and claimed to be tried.


6.    During the trial, the prosecution examined as many as 13 (thirteen) witnesses. The
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accused in his statement recorded under Section 313 Cr.P.C. denied that he caused the
death of the deceased. The defence plea is that the carbine was triggered during the scuffle
with the deceased. He pleaded that he is innocent. No defence evidence was adduced.

7.    The learned Trial Court formulated two points for determination, which were as follows
-

1. Whether the death of the deceased was homicidal?

2. Whether the accused committed the murder with an intention to cause death of the deceased?

8. After hearing the arguments placed by the learned counsels for both sides and considering the entire evidence on record, the learned Trial Court convicted and sentenced the accused under Section 304 (Part I) of the Indian Penal Code and sentenced him to undergo R.I. for five (5) years and to pay a fine of Rs.3,000/- (Rupees three thousand) and in default to payment of fine, to undergo R.I. for another two (2) months.

9. Being aggrieved, the accused appellant has preferred the present appeal on the following grounds, amongst the others:

(I) For that the evidence on record do not warrant conviction and sentence of the accused / appellant under Section 304 (Part I) of the Indian Penal Code and as such, the impugned Judgment and Order dated 11.03. 2011 is liable to be set aside and quashed.

(II) For that from the non-reading and misreading of the evidence on record has resulted in miscarriage of justice and as such, the impugned Judgment and Order dated 11.03.2011 is liable to be set aside and quashed.

(III) For that from the evidence on record and other circumstances appearing in the case it has not been proved beyond all reasonable doubt that the accused / appellant is the perpetrator of the alleged offence and as such, the impugned Judgment and Order dated 11.03.2011 convicting the accused / appellant under Section 304 (Part I) Page No.# 4/17

of the Indian Penal Code is liable to be set aside and quashed.

(IV) For that from the evidence of P.W 1, it has transpired that there was a scuffle between the accused / appellant and the deceased Karna Chetry and firing from the gun may have been the resulted out of such scuffle and as such finding of Learned Trial Court convicting the accused /appellant for offence under Section 304 (Part I) of I.P.C is liable to be set aside and quashed.

(V) For that from the evidence of P.W 5 Md. Ziaul Islam, there was an altercation between the accused / appellant and the deceased and there was a scuffle between them for the carbine which was in the hands of the accused / appellant and as such, Learned trial judge has erred in law in convicting the accused / appellant for offence under Section 304 (Part I) of the I.P.C and therefore the same is liable to be set aside and quashed.

(VI) For that the evidence of the Court witness Raja Das cannot be termed as reliable and trustworthy as it is clear from the evidence of other witnesses that he along with the deceased was brought to the police station in an inebriated condition as an accused and a case was also registered against him and his deposition that the accused /appellant fired at the deceased without any provocation nor that there was any scuffle between the accused / appellant and the deceased does not inspire confidence and as such the Learned trial judge ought to have been more cautious in appreciating the evidence on record and failure to do so has caused grave miscarriage of justice to the accused appellant and therefore, the impugned Judgment and Order dated 11.03.2011 convicting the accused / appellant under Section 304 (Part I) is liable to be set aside and quashed.

(VII) For that the Learned trial Court has erred in law in solely relying upon the Court witness Raja Das who according to P.W 1 Sri Jogen Gogoi and P.W 5 Md. Ziaul Islam had brought the deceased and Raja Das to the police station finding them in an intoxicated condition and as such his evidence cannot be termed as wholly reliable or trustworthy. Therefore, the impugned Judgment and Order dated 11.03.2011 convicting the accused / appellant is bad in law and the same is liable to be set aside and quashed.

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(VIII) For that the confessional statement of the accused /appellant under Section 164 of the Cr.P.C recorded by P.W 13 Smt. Aruna Devi, the then Additional Chief Judicial Magistrate, Jorhat clearly transpires that the victim attempted to snatch away the carbine of the accused / appellant and there was scuffle between them and during the scuffle, fire was shot accidentally and the victim sustained injury and as such, the finding of the Learned trial judge that the accused / appellant might not had shot fire with an intention to cause death of the deceased although he had knowledge that death may be caused is not tenable in law inasmuch as the incident had occurred due to accidental firing due to scuffle of carbine and therefore the impugned conviction and sentence of the accused / appellant for offence under Section 304 (Part I) of the Indian Penal Code is liable to be set aside.

(IX) For that the confessional statement of the accused /appellant recorded by P.W 13, Smt. Aruna Devi, the then Additional Chief Judicial Magistrate ought not to have been considered as a confessional statement inasmuch as the said statement of the accused / appellant is not the confession of guilt as the accused / appellant stated that the one of the two persons coming through the corridor with constable Md. Ziaul Islam caught hold of his weapon and then there was scuffle between them and one round of fire was shot due to triggering which hit the deceased and as such finding of guilt of the accused / appellant relying upon such confessional statement is not tenable in law and the impugned conviction and sentence vide Judgment and Order dated 11.03.2011 is liable to be set aside.

(XII) For that the impugned Judgment and Order dated 11.03.2011 convicting the accused / appellant under Section 304 Part I of the Indian Penal Code do not promote the ends of justice and therefore the said impugned Judgment and Order is liable to be set aside and quashed in the interest of justice.

10. Accordingly, the learned counsel for the accused appellant prays for setting aside and quash the judgment and order dated 11.03.2011 and to acquit the accused appellant.

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11. Heard the submissions of learned counsel for both sides and perused the Trial Court record.

12. Mr. B.M. Choudhury, learned counsel for the appellant submitted that this is not at all a case to be convicted under Section 304 (Part I) of the Indian Penal Code. But it is a fact that the accused/appellant was a PSO of the Officer-in-Charge of the police station and being a PSO, he admittedly had a gun with him, which was also loaded at the relevant time of incident. From the evidence of the prosecution witnesses, it is also seen that the carbine has to be loaded when any PSO is on duty. Mr. Choudhury further submitted that the unfortunate incident had happened only during the scuffle, which took place between the victim and the accused after an altercation between them. All the prosecution witnesses corroborating each other have stated that the incident had happened and the all heard the sound of firing after the scuffle took place between the deceased and the accused person. He further submitted that it is an admitted fact that the deceased died out of the bullet injury sustained by him and it is also an admitted fact that the bullet was passed from the arm which was carrying by the accused appellant at the relevant time of incident. But there is no evidence at all to support the case of the prosecution that the petitioner had any intention to commit murder of the deceased or he had any intention to cause bodily injury to the deceased having knowledge that the same injury may cause death to the deceased. It was only a scuffle took place between the deceased and the accused person, when accidently the arm was fired and the deceased sustained the bullet injury.

13. Mr. Choudhury, learned counsel for the appellant further submitted that the Court Witness, who was examined by the learned Sessions Judge, Jorhat, who claimed his presence all along at the relevant time of incident and it is also admitted by other prosecution witnesses that two boys including the deceased were brought to the police station on the night of the incident. But as per the court witness No. 1, the accused assaulted him badly and thereafter, he triggered his firearm at the neck of the deceased which caused death to the deceased. But from the injury report as well as from the evidence of the Doctor (PW.11), it is seen that the entry wound was over the left shoulder just above the middle of the lateral aspect and another oval wound was also found over the left clavicular area, near the acromial Page No.# 7/17

end which is considered as the first exit wound and the final exit wound was found on the right retro-auricular region nearer to angle of mandible. Thus, the injury report and the evidence of the Medical Officer does not support the version of the court witness No. 1, as per whom the accused triggered his firearm at the neck portion of the deceased for which he sustained injury and died immediately.

14. Mr. Choudhury, the learned counsel for the appellant further submitted that the confessional statement, on the basis of which the accused/appellant was convicted is also cannot be considered as a confessional statement, wherein he never confessed that he had any intention to cause bodily injury nor had any intention that injury may cause death to the deceased and he simply stated before the learned Magistrate that the unfortunate incident had happened only during scuffle and the fire was shot accidently. As the firearm was loaded, the victim sustained the bullet injury and he died, though he was immediately shifted to hospital. The other prosecution witnesses also corroborated this part of statement of the accused, which he had stated while his statement was recorded under Section 164 CrPC. Mr. Choudhury, the learned counsel further submitted that the in para 23 of the judgment, the learned Sessions Judge, Jorhat made the observation as an expert without even examining the ballistic expert, which cannot be considered. It is also observed by the learned Sessions Judge that to shot a fire, the fire pin must be released and it can be released by pulling the trigger. It must be unlocked by lifting the bolt head followed by extraction and ejection of the fire cartridge cage and accordingly, it is considered that without pulling of the trigger, the bullet cannot be shot. But from the evidence of the prosecution witnesses, it is evident that the bullet was fired from the firearm, which was carrying by the accused only due to scuffle that took place between the deceased and the accused appellant. Mr. Choudhury accordingly submitted that it is not at all a case to be convicted under Section 304 (Part I) of the Indian Penal Code.

15. Mr. Choudhury, the learned counsel for the appellant, in support of his submission, has relied upon a decision of the Hon'ble Apex Court in the case of State of M.P. vs. Sanjay Rai, reported in (2004) 10 SCC 570, and basically emphasized in para 17 of the said judgment reads as under :

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"17. It cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of dealing with or disposing of the evidence of an expert examined in this case unless the passages which are sought to be relied to discredit his opinion are put to him. This Court in Sunderlal v.

The State of Madhya Pradesh (AIR 1954 SC 28), disapproved of Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. Similar view was expressed in Bhagwan Das and another v. State of Rajasthan (AIR 1957 SC 589). Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given".

16. On the other hand, Mr. P. Borthakur, learned Addl. Public Prosecutor, Assam appearing for State respondent submitted that the learned Sessions Judge, Jorhat has passed the order after appreciating the evidence on record in true perspective and hence, interference of this Court is not necessary. He further submitted that it is an admitted fact a bullet was fired through the firearm of the accused/appellant. Further he submitted that it also cannot be denied that all other prosecution witnesses who were examined in this case including the informant are police personnel and hence, they deposed accordingly only in favour of the appellant and for which the learned Trial Court found it necessary to examine the person who accompanied the deceased to the police station as CW. 1 and the CW. 1 accordingly stated in his evidence specifically that the appellant with an intention to kill the deceased had triggered the firearm on the neck of the deceased which caused his immediate death. Further, he submitted that during the period of scuffle, the CW. 1 may not be in a position to say the parts of the body wherein the deceased sustained injury or the appellant intentionally fired his firearm. But the facts remain same that the deceased sustained bullet injury which was triggered from the firearm of the appellant which was carrying by him at the relevant time of incident.

17. Mr. P. Borthakur, learned Addl. Public Prosecutor, Assam accordingly submitted that the case is well established against the appellant and accordingly, considering this aspect of the Page No.# 9/17

case, the accuse appellant was also convicted under Section 304 (Part-I) and not under Section 302 of the Indian Penal Code, as charged aginst the accused appellant.

18. Hearing the submissions made by learned counsel for both sides, I have also perused the case record, evidence recorded by the learned Sessions Judge and the judgment and order passed by the learned Sessions Judge.

19. To arrive at the just decision, I find that the evidence of the PWs/CWs is to be scrutinized.

20. Dr. Dhiren Das [PW-11] held post-mortem examination on the dead body of the deceased on 05-04-2002 and his findings are as follows:-

A male fresh body of about 25 years of age with closed mouth and partially open eyes reveals blood stained face and neck. Rigor-mortis started in four limbs.

INJURIES-WOUNDS, POSITION, SIZE & CHARACTER

1. One circular punched in hole, about .5 cm in diameter over left shoulder just above the middle on lateral aspect. The wound is with inverted margin. It is associated with blackening of skin and tissues and tattooing of margin and also with singeing. The skin around is abraded with 2.5 cm (approx) in diameter. It is the entry wound.

2. Another oval wound with everted margin and of about .75 cm in diameter over left clavicular area near the acromial end. The wound is reddened, puckered and without any abraded collar around and without blackening and tattooing. It is the 1 st exit wound.

3. Another grooved oval wound with inverted margin and with the length of about 1 cm is noted on the left part of neck over the carotid triangle just above the level of thyroid cartilage. It is reddened but without blackening and tattooing and also without abraded collar.

4. Another lacerated wound of about 1.5 cm in length & breadth with averted margin is noted on right retro-auricular region nearer to angle of mandible. The wound is reddened and without any abraded collar, blackening and tattooing. It is the exit wound-final exit.

All the other organs are congested.

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VESSELS:

1. Carotid and jugular vessels are ruptured, lacerated at the sites with Injury Nos. 3 &

4.

2. The muscles without bones in between Injury Nos. 1 & 2 are reddened and lacerated.

3. The pre-vertebral muscles with big vessels of neck on either side are reddened, lacerated in between Injury Nos. 3 & 4.

4. The tissues adjacent to Injury No-1 shows blackening.

MORE DETAILED DESCRIPTION OF INJURY OR DISEASE:

1. The neck with skull and chest X-rayed (No. H-31) dated 05-04-2002 prior to dissection. It shows no pellet inside.

2. The injuries are caused by firearm.

3. Single bullet has caused all Injuries.

4. All the Injuries are ante-mortem.

5. Visceras are preserved for ascertaining any concomitant finding if needed.

In the opinion of the doctor, the death was due to syncope, as a result of firearm injuries sustained by the deceased. In cross-examination, the Doctor stated that single bullet caused all the injuries. There was single wound with double exit.

21. PW.1 Sri Jogen Gogoi, awas police constable deposed in his evidence that on 04-04- 2002, he accompanied by constable Islam found two youths under intoxication, causing commotion and he brought them to police station. One Mridul Gohain was on emergency duty. The youths' surname was Das & Chetri respectively, who were handed over to Mridul Gohain. In the meantime, accused Punya Kanta Das who was the P.S.O. of the Oficer-in- charge alighted from upstair and he had scuffle with Das & Chetri. PW-1 then heard the sound of gunshot. Chetri sustained bullet injury. He stated that Punya Kanta Das (accused) used the gun. In his cross-examination, he stated that P.S.O. keeps arm. The fire might have shot due to scuffle. He did not see the accused to shot the fire. He further stated that there Page No.# 11/17

was dark at the place of occurrence.

23. PW.2, Sri Diganta Bordoloi deposed that on the date of occurrence police had quarrel with Karna Chetri (deceased) and another boy. Both were taken to the police station and PW- 2 was also asked to come to police station. It was 12 midnight and while he was in the corridor of police station, he heard hue & cry inside the police station. Later on, he came to know that a man died sustaining bullet injury. Police seized an empty cartridge and a 9 mm carbine in his presence vide Exhibit-1 & Exhibit-2. He testified his signatures on both the seizure list. The body of Karna Chetri was removed to hospital in his presence. His statement was recorded u/S. 164 of Cr.P.C. In cross-examination, he stated that the incident occurred before his arrival at the police station. Police told him that Karna Chetri sustained bullet injury.

24. PW.3 Sri Rajat Bora stated that at the time of incident he was in the police station. He heard the sound of gunshot. An empty case of 9 mm ammunition was seized in his presence vide Exhibit-1. The 9 mm carbine was also seized vide Exhibit-2. In cross-examination, he stated that he cannot say from whose possession the seized articles were recovered.

25. PW.4 Sri Dulal Gogoi is also a seizure witness. The arm & empty case of ammunitions were seized in his presence. PW-4 was not cross-examined by the defence.

26. PW.5, constable Jainul Islam is the informant in this case, who deposed that he along with PW-1 brought the victim Karna and another to police station. The accused in the meantime emerged from the General branch of the police station. PW-5 along with PW-1 entered into General branch to inform the Officer. When he came out, he saw altercation between the accused and the deceased. Accused was holding carbine. Then there was scuffle between the accused and the victim and PW-5 heard sound of fire shot. The injured Chetri was shifted to hospital. PW-5 came to know that the deceased succumbed to his injury and he lodged the FIR. In cross-examination, he stated that the accused was on duty with the Officer-in-charge. As a P.S.O., he might have kept his carbine loaded. He admitted that he has Page No.# 12/17

mentioned in the FIR that the deceased caught the carbine and then he scuffled with the accused and in the process fire shot which hit the deceased. The carbine was tied with belt.

27. PW.6 Sri Dulumoni Mahanta deposed that the deceased Karna Chetri during his childhood used to reside in his house. S.I. Gharphalia reported him that Karna Chetri sustained bullet injury. He then came to the police station and therefrom to Civil Hospital. Inquest on the dead body was held in his presence. He heard that the accused fired on the deceased.

28. Constable Pradip Gogoi was examined as PW.7, who stated that he was on duty at the entrance gate of police station. At 12.30 A.M., he heard sound inside the police station. Later on he saw the dead body of the deceased with bullet injury.

29. PW.8, Sri Shyam Kumar Bania who is S.I. of police was also present inside the police station in the night of occurrence. The Officer-in-charge of police station forwarded two accused through his P.S.O. Sri Budhin Bora who was on emergency duty was recording name & address of those accused persons. In the meantime, PW-8 heard sound of gunshot. He came out and saw the deceased. Officer-in-charge also came out and the victim was shifted to hospital. He did not see who shot fire. In his cross-examination, he admitted that the arm of PSO may be loaded.

30. Sri Mainuddin Ahmed [PW-10], Deputy Superintendent of Police, simply submitted the charge-sheet.

31. PW.12, Sri Budhin Duwarah also heard the sound of gunshot while he was recording name & address of some accused. He came out of the room and saw the deceased lying. He shifted the victim to hospital where he was declared dead. Inquest on dead body was held in his presence. He also investigated the case. He seized the empty case and 9 mm carbine, recorded the statement of witnesses, arrested the accused and forwarded him to the Court Page No.# 13/17

with prayer to record his confessional statement. He sent the seized arms & ammunition to ballistic department. He collected the post-mortem report. In cross-examination, he stated that the PSO's on duty used to keep loaded arms.

32. PW.13, Smt. Aruna Devi, the then Additional Chief Judicial Magistrate, Jorhat, recorded the confessional statement of the accused Purna Kanta Das, under Section 164 of the Cr.P.C. The accused was produced before her on 08-04-2002. She cautioned him about the consequences of his confessional statement and remanded him to judicial custody for reflection. Next day on 09-04-2002 the accused was again produced before her. Again the accused was given time for reflection. Then he was again cautioned. On being satisfied that the accused is going to confess voluntarily, PW-13 recorded his confessional statement. Exhibit-6 is the confessional statement. She also certified that the accused confessed voluntarily in her certificate to that effect vide Exhibit-6 (7). PW-13 was not cross-examined.

33. In this case, Raja Das who was all along with the victim was not cited as witness. Since the incident took place in his presence, he was summoned as Court witness. In his evidence he stated that on 04.04.2002, at around 11 p.m., he along with deceased and Diganta Bordoloi were waiting on the road that leads to Garmurh from Lahoti Petrol Pump, Jorhat to go to their houses. At that time, he was taking with a neighbouring youth named Nagayah. Meanwhile, he saw two police personnel beating deceased. Then deceased, in tears, requested the police personnel not to beat him. The present witness also requested both the police personnel not to beat him. Then both the police personnel asked him about his relation with deceased, upon which he replied that he was his companion and the police asked them to go to the police station and accordingly, they went to the police station and the two police personnel followed them by riding bicycle. Diganta Bordoloi, who was with them, followed them by riding a bicycle and came to Jorhat P.S. When they reached the courtyard of the police station, the two police personnel, who came along with them, told the other police personnel that the deceased had threatened them whereupon the other police personnel also beat him with lathi. The deceased was saying, 'Please do not beat me, please do not beat me'. Thereafter the deceased was taken inside the police station and this witness followed Page No.# 14/17

him. Then one policeman asked the policeman who had taken them to the police station about the incident and the latter replied that the deceased had threatened him and also caused nuisance. Then said policeman asked the deceased as to why he had issued threats whereupon the deceased told that he had not done so and asked the policeman to forgive him if he had done any mistake. But the said policeman shot at the deceased with the gun he was carrying with and when the bullet hit the deceased on his neck, started bleeding and sat down. Then the present witness screamed. Diganta Bordoloi had also reached the doorway of the police station by then. The police took the deceased immediately to the Jorhat Civil Hospital in a vehicle and he also accompanied them but the doctor at the hospital declared the deceased dead. This witness stated that at the police station, the deceased did not engage in any scuffle with any policeman. Later he came to know that the name of the policeman who had shot at the deceased was Sri Punya Das.

34. The accused in his confessional statement recorded u/S. 164 of Cr.P.C. has stated that while he came out from the General branch room he saw the victim and another. The victim attempted to snatch away his carbine and there was scuffle between them. During the scuffle fire was shot accidentally. The arm was loaded and the victim sustained the injury. Immediately he was shifted to the hospital. The arm was 9 mm carbine machine gun.

35. The report from the ballistic division also shows that the carbine machine gun was serviceable and the empty cartridge case was compared under large comparison microscope and found similar firing pin impression as well as ejector marks. The Scientific Officer opined that Exhibit-B was fired by Exhibit-A.

36. From the above evidence it appears that the death of the deceased due to syncope as a result of firearm injury sustained by him is not disputed. It is also admitted that the accused was holding the firearm and the deceased sustained the fatal bullet injury by the arm in possession of the accused. The defence case as it appears from the cross-examination as well as confessional statement of the accused is that the death of the deceased was accidental. The accused neither opened the fire nor he intended to cause death.

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37. It is not at all disputed that the deceased died due to bullet injury and the bullet was also triggered from the firearm which was carrying by the appellant at the relevant time of incident. As discussed above, all the prosecution witnesses including the informant corroborating to each other deposed that there was a scuffle that took place between the deceased and the accused appellant at the night of the incident, wherein accidently the firearm was triggered and the deceased sustained the bullet injury.

38. In the confessional statement also the accused appellant had narrated the same story, corroborating the evidence of other prosecution witnesses that the incident had happened only during the scuffle took place between him and the deceased. From the evidence of all the prosecution witnesses it is seen that there was no intention on the part of the appellant to cause death of the deceased and it was only an accidental case, wherein the firearm was triggered accidently and the deceased sustained the bullet injury. It is only the CW. 1, the boy who accompanied the deceased to the police station alleged that at the relevant night of incident, he was all along present with the deceased and the accused/appellant had assaulted him badly and thereafter, with an intention to cause death of the deceased, he shot at the deceased with the firearm he was carrying with him, when the bullet hit the deceased on his neck and started bleeding and thereafter, succumbed to his injuries on way to the Hospital. It is also an admitted fact that the prosecution initially did not examine the CW. 1, though he stated to be present all along with the deceased and at the relevant time of incident. But finding his evidence necessary for the just decision of the case, the learned Sessions Judge, Jorhat rightly examined the CW. 1, to know the actual fact of the case. But his evidence does not corroborate the evidence of the other prosecution witnesses as well as the medical evidence. As per the medical evidence, only single bullet injury caused all the injuries and there was only one entry wound over the left shoulder, just over the mandible on the lateral aspect and there were two exit wounds : one was over left clavicle area near the acromial end and the final exit wound was on the right retro-oricular region near the angle of mandible.

39. Thus, it is seen that the entry wound was on the shoulder region with two exit wounds near the mandibular region. It is also admitted fact that the ballistic expert was not examined Page No.# 16/17

by the learned Sessions Judge but it was observed by the learned Trial Court in para 23 of the judgment that to shot a firearm, the fire pin must be released and it can be released by pulling the trigger only. But without examination of the ballistic expert, it cannot be said as to whether the trigger was intentionally pulled by the accused appellant at the time of the incident.

40. From the evidence of the PW. 1 and PW. 5 (the informant), it is also seen that the deceased was pulling the firearm at the time of the scuffle which was admittedly loaded at the time of incident. Thus, from the evidence of the prosecution witnesses, it is seen that during the scuffle, if the firearm was pulled by the deceased accidently, there was probability of triggering the firearm at the time of scuffle is also cannot be out rightly rejected unless there is evidence that the appellant intentionally shot at the deceased by triggering his firearm.

41. It also cannot be denied that all the prosecution witnesses being police personnel, may not support the prosecution case or they may depose in favour of the accused/appellant but from the discussion made herein above, it is also seen that the CW. 1, who claims his presence at the relevant time of incident, also does not corroborate the medical evidence or the evidence of the Doctor who specifically testified one entry and two exit wounds and there was no other entry wound on the body of the deceased which is described by the CW. 1. This also creates a reasonable doubt in the veracity in the evidence of the CW. 1.

42. More so, it is also observed by the learned Sessions Judge that as per the post mortem report, the entry wound was over the right shoulder, just above the middle of the lateral aspect and a single bulled had caused all the injuries. As the entry point of the bullet was over the right shoulder, the accused may not have the intention to cause the death of the deceased though he had the knowledge that death may be caused. But the said observation cannot be accepted, considering the evidence on record including the evidence of the CW.1 and the confessional statement on the basis of which the judgment was passed.

43. It is an admitted fact that a scuffle took place between the deceased and the accused Page No.# 17/17

appellant and in that process, the bullet was fired from the firearm which was loaded and carrying by the accused/appellant. But there is no evidence that the accused/ appellant had any knowledge that there may be an accidental triggering of the firearm in the process of scuffle with the deceased. More so, there is no evidence that the accused/appellant intentionally assaulted the deceased to cause bodily injury and with the knowledge that it may cause death to the deceased but from the prosecution witnesses, it is only evident that it was merely a scuffle took place between the deceased and the accused appellant and the bullet was shot at accidentally, which hit on the shoulder of the deceased, which is considered as the entry point and with two exit points, for which the deceased died.

44. Considering all these aspects of the case, this Court is of the opinion that the prosecution failed to establish the case that the accused had triggered the arm which caused bullet injury on the deceased and accordingly it is held that it is not a fit case to be convicted under Section 304 (Part-I) of the Indian Penal Code and accordingly, the judgment and sentence, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 85 (JJ) of 2007 is hereby set aside and quashed and the accused/appellant is set at liberty forthwith.

45. Return back the Trial Court Record along with a copy of this judgment immediately.

JUDGE

Comparing Assistant