IMPORTANT POINT
Sections 326 and 307 IPC cannot be used simultaneously to convict a person.

JUDGMENT

Nishita Mhatre, J.—The appeal is directed against the judgment and order of the Additional Sessions Judge, 1st Fast Track Court, Lalbag, Murshidabad, in Sessions Trial No.2 of January 2004. The appellants were charged under Section 326 read with Section 34 of the I.P.C. and Section 307 read with Section 34 of the I.P.C. and under Sections 25 and 27 of the Arms Act. They have been acquitted of the charges under Sections 25 and 27 of the Arms Act. However, they have been convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.2,000 (Rupees two thousand only) each and in default of payment of which to suffer simple imprisonment for further period of one year for the offences under Section 307 read with Section 34 of the I.P.C. The sentence of three years and a fine of Rs.1,000 (Rupees one thousand only) for the conviction under Section 326 read with Section 34 of the I.P.C. is directed to run concurrently.

2. The complainant Abhijit Mondal lodged a complaint on 9th February, 2002 at 7.45 a.m. stating that at 6 a.m. on that day when his father Bhusan Mondal was on his way to their field, the appellants shot him with unauthorized fire-arms. The complainant Abhijit Mondal and his brother Indrajit Mondal were, picking brinjals from their land when they heard the shot being fired and their father’s shouts. They saw the appellants flee away through the fields carrying the unauthorized firearms. Their father had sustained a bullet wound which was bleeding. He was taken to Lalbag Hospital and thereafter referred to Berhampore Hospital. According to the prosecution, the appellants had fired shots at the victim with the intention to kill him. After their arrest, the case was committed for trial to the Sessions Court. Charges were framed under four heads for offences punishable under Section 326 read with Section 34 of the LP.C. and Section 307 read with Section 34 of the LP.C. and Sections 25 and 27 of the Arms Act.

3. The prosecution has mainly relied on the testimony of the two sons of the victim and the victim himself. PW1 Abhijit Mondal has reiterated in his deposition the contents of his complaint. He has stated that the accused Ranajit Mondal, i.e., appellant No.1 shot his father on the upper right side of his back with a pistol. Appellant No. 2 Nato Mondal shot him on his head with a pipe gun. Appellant No.3 shot the victim on his left hand just above the wrist with the pipe gun. The witness has stated that when he and his brother, Indrajit rushed to aid their father, the appellants fled away. He claimed that his father’s right hand had been permanently Incapacitated due to that injury. This witness has admitted that he, his brother and his father are all accused in a case where the appellant are the complainants.

4. PW 2 is the brother of PW 1. He has narrated the incident almost verbatim. He has conceded in his cross-examination that the Investigating Officer of the case did not examine him after the incident. According to this witness, on hearing the firing he and his brother rushed to the spot and found their father lying injured on the ground. They first took their father to their residence and soon thereafter he was taken to Lalbag Hospital and later to Berhampore Hospital after being referred there. The witness has stated that his father had become unconscious when he was being taken to their house and he regained consciousness only the next day in the Berhampore Hospital. The witness has admitted that the clothes worn by him and his brother had become blood stained but were not seized by the police.

5. PW 3 is a neighbour of the victim. He is a post-occurrence witness. He has described the incident which was narrated to him by the victim’s sons.

6. PW 4 is another post-occurrence witness and a relative of the victim. He claims that he heard of the incident and rushed to the field when he heard the sound of the shots being fired. According to him, other villagers also rushed to the