IMPORTANT POINT
Attempt to murder – Intention to kill must be apparent from act of accused.

JUDGMENT

Ratnaker Bhengra, J.—Heard Mr. Arbind Kumar Sinha, the learned counsel for the appellant, Mrs. Suchitra Pandey, the learned Amicus Curiae and Mr. S.K. Srivastava, the learned APP.

2. The present criminal appeal is preferred against the judgment of conviction dated 17.04.2010 and the order of sentence dated 20.04.2010, passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj, Palamau in Sessions Case No. 301 of 2003, whereby and whereunder, the appellant was convicted under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act. The appellant was sentenced to undergo RI for six years and a fine of Rs.2000/- under section 307 of the Indian Penal Code and sentenced to undergo RI for two years under Section 27 of the Arms Act. In default of payment of fine two months SI was awarded and both the sentences were directed to run concurrently.

3. The case of the prosecution, in brief, as per the fardbeyan dated 21.12.2001 of the informant PW-1 Ali Hasan Ansari, is that on 20.12.2001 at 7:00 O’clock in the evening, informant along with his wife Sahida (PW-3) was sitting near stove and informant’s wife as cooking food. Suddenly appellant Akhter Ansari armed with gun came and fired from the gun. The pellet of the bullet hit the finger of the informant’s hand, arm and chin and he came out raising alarm. Informant saw Akhter Ansari, Asgar Ansari, Idris Ansari and Riyasat Hussain, all of them fleeing away. Informant further stated that on halla, his brother Ibrar Ansari and villagers Hafiz Mian (PW-5), Dildar Mian (PW-6), Jumman Ansari (PW-7) and Zafar Ansari (PW-8) came there. After the incident, the informant, along with the villagers went to Sarpanch Tahir Hussain (PW-10), who told him to inform at the police station. Informant stated that the incident occurred due to dispute over the grazing of the field by the cattle.

4. On basis of the fardbeyan of the informant, formal FIR being Chhaterpur PS Case No. 100 of 2001 dated 21.12.2001 was registered under sections 448, 307/34 IPC and section 27 Arms Act against the accused persons including the appellants herein. After investigation, charge sheet was submitted under sections 448, 324, 326, 307/34 of IPC and section 27 of the Arms Act against the four accused persons including the appellant herein and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed under section 307 IPC and section 27 Arms Act against the appellant and trial was held. At the conclusion of the trial, the appellant was convicted and sentenced as aforesaid, hence, this appeal.

5. Prosecution had examined altogether twelve witnesses out of whom PW-1 is Ali Hasan Ansari, who is informant of the case; PW-2 is Mohiuddin Mian, who is the father of the informant; PW-3 is Sahida Bibi, who is the wife of the informant; PW-11 is Dr. Rajesh Kumar Agrawal; PW-12 is Nasim Haider, who is a formal witness and he had proved the fardbeyan and the formal FIR which were marked as Ext.-3 and Ext.-4 respectively. The remaining other witnesses PW-4 Sadique Mian, PW-5 Hafiz Mian, PW-6 Dildar Ansari, PW-7 Jumman Ansari, PW-8 Zafar Ansari, PW-9 Samsuddin Ansari and PW-10 Tahir Ansari were declared hostile by the prosecution.

6. PW-1 Ali Hasan Ansari, is the informant of the case. Informant had in his evidence stated that on 20.12.2001 at 7:00 O’clock in the evening, informant was at his home along with his wife. Appellant Akhter Ansari entered into his house, abused him and fired at him, which hit his arm and finger. Asgar Ansari was also there along with Akhter Ansari. He came out shouting and saw Riyasat Ansari and Idris Ansari standing. Informant further stated that he got his injury treated firstly in village and thereafter, in Government Hospital. Informant has proved his signature on the fardbeyan which was marked as Ext.-1. Informant further stated that bullet was fired from the distance of 6-7 steps. In his cross-examinatio