Judgment · High Court · 2012

2]. I have heard Mr. P. Bora, learned counsel for the appellant and Mr. K. M unir, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 3]. The prosecution case, in brief, is that: On 23-04-1994, the accused appellant, who was a Constable of Plat oon No.6 of 11-Assam Police Battalion, fired the victim (Manik Bora) by his serv ice rifle. The victim Manik Bora was immediately taken to the hospital at Dhans iri Public Health Centre where he succumbed to the injuries. An FIR was lodged t o the Diphu Police Station and the O.C. Diphu Police Station, on receipt of the FIR, registered a case numbering Diphu P.S. Case No. 87/94 under Section 302 IPC and started investigation. On completion of the investigation, I.O. submitted t he charge sheet under Section 302 of the IPC against the accused appellant. 4]. m under Section 302 IPC and claimed to be tried. The accused-appellant pleaded not guilty to the charge framed against hi 5]. During trial, altogether 8 witnesses were examined on behalf of the pr osecution. Thereafter, the statement of the accused under Section 313 Cr.P.C wa s recorded. In his statement under Section 313 Cr.P.C., the accused appellant s tated (cid:28)only in self defence the rifle got accidentally triggered (cid:29). No defence ev idence was adduced. 6] PW-1, Hav. Sri Haren Gayan, PW-2, Constable Gobin Panchani, PW-3 , LNK Sri Lakhi Ram Deka, PW-4, Constable Sri Rudreswar Pegu, PW-5, Hav. Monin N ath and PW-7, Hav. Gunaram Saikia, they all stated that they heard the sound of f iring but they did not see the incident and thereafter, they rushed to the place of occurrence. They saw the victim Manik Bora with bullet injury. PW-1, PW- 4 and PW-7 stated that the injured Manik Bora told that he was shot by the accus ed. The service rifle from the possession of the accused appellant and empty car tridge from the place of occurrence were seized in presence of the witnesses. 7]. PW-6, Dr. SK Borthakur held the autopsy of the dead body of the deceased Manik Bora on 24-04-1994. His findings are as follows:- (cid:28)1. R.M. is present.

#2. Entry wound of a bullet was found just below right anterior superior relics -spine.

#3. Exit wound of bullet non seen below anterior superior relics spine on the l eft side.

#4. During P.M examination of abdomen the purtoneum is found to be darkish in co urt due to intra purtoneum haemorrhage, The abdomen is full of blood and there i s injury to the liver, spun, kidney etc. 5. The iliac vessel of right side was torn and urine of intestine was torn the s ides.

#6. Right and left iliac bones were fractured. (cid:29) In the opinion of doctor, the death was due to extensive haemorrhage and shock due to gunshot wounds. The injuries were ante-mortem in nature. In cros s- examination, the doctor stated that the fire was from a close range and the w ounds found in the dead body were caused by a single bullet. 8]. PW-8, the Investigating Officer of the case stated that the rifle with cartridge was issued to the accused. The learned trial Court, on appreciation o f the entire evidence, held that although, the accused appellant caused the deat h of the victim, he had no intention to kill the victim Manik Bora or he did not open fire with any motive. However, the accused being in service as Constable was given proper training in use of Arms. It is not expected from a trained poli ce Constable that he should utilize his service Rifle as a toy gun pointing to h is opponent putting his finger on the trigger, because as a trained police Const able, he had clear knowledge that triggering of the Rifle may take the life of a ny person in front. The accused was accordingly convicted under Section 304 IPC . Although, learned trial Court has not stated whether he has been convicted und er Section 304 Part-1 or II of the IPC, it appears from the circumstances of the case that the accused appellant committed the offence under Section 304 Part-II of the IPC. 9]. The learned counsel for the appellant has submitted that the accused h as almost undergone imprisonment for 9 months during investigation and trial. So , sentence may be reduced to fine and compensation may be given to the victim’s family. The conviction and sentence of rigorous imprisonment for 5 years and to pay fine of Rs.500/-, in default, further simple imprisonment for one month is reduced to the period already undergone by the accused-appellant. 10]. The incident occurred in the year 1994. Considering the length of the litigation and the circumstances under which the offence was committed, the conviction and sentence for rigorous imprisonment for 5 years and to pay fin e of Rs.500/-, in default, further simple imprisonment for one month is hereby r educed to the extent already he undergone as stated earlier. The accused-appel lant shall pay a fine of Rs.5,000/- and he shall also pay an amount of Rs.1,00,0 00/- as compensation to the victim’s family. The said amount shall be deposited to the learned trial Court within a period of 2(two) months from today and on de posit the said amounts, the learned trial Court, on proper identification, shall disburse the deposited amounts to the victim’s family. 11]. This appeal stands partly allowed with the above modifications as indicated above. 12]. urt below. Send down the LCR along with a copy of this judgment and order to the co JUDGE