Point of Law:Conviction under S. 308 – In order to convict a person for attempt to murder under Section 307 IPC, it must be proved that he has done some act with such intention or knowledge, that if by the act done death would have been caused, he would have been guilty of murder.

JUDGMENT :

Mir Alfaz Ali, J.

Learned counsel Mr. Samiron Sarma, appearing for the appellant and Mr. M. Phukan, Additional Public Prosecutor, Assam were heard.

2. This appeal is directed against the judgment and order dated 30.05.2019 rendered by the learned Sessions Judge, Darrang, Mangaldai, in Sessions Case No. 45(DM)/2015. By the said judgment, learned Sessions Judge convicted the appellant under Sections 302/307 IPC and Section 27(1) of the Arms Act and sentenced him to undergo rigorous imprisonment for life and fine of Rs.10,000/-with default stipulation under Section 302 IPC; imprisonment for 10 (ten) years and to pay fine of Rs.5,000/- with default stipulation under Section 307 IPC and rigorous imprisonment for 3 (three) years and to pay fine of Rs.2,000/- with default stipulation under Section 27(1) of the Arms Act.

3. Prosecution case, in a nutshell, is that at about 8 a.m., on 14.10.2011, the accused Tankeswar Sarma shot his uncle Panchanan Sarma with a pistol in front of his house and the victim died instantaneously. When the son of the victim came forward, the accused shot at him too, and thereby caused grievous injury. Nephew of the deceased, lodged an FIR, on the basis of which, Officer-in-charge of the Mangaldai Police Station registered Mangaldai P.S. Case No. 713/2011 under Sections 302/307 IPC read with Section 25(1)(A) of the Arms Act and upon completion of the investigation, laid charge sheet against the appellant.

4. Basing on the charge sheet and the materials produced therewith, learned Sessions Judge framed charges against the appellant under Sections 302/307 IPC and Section 27(1) of the Arms Act, to which the appellant pleaded not guilty. Prosecution examined 14 (fourteen) witnesses in order to bring home the charges against the appellant. Upon completion of the prosecution evidence, the accused was examined under Section 313 CrPC, wherein, he had taken the plea of innocence and examined a witness in his defence.

5. The informant Umesh Sarma, who lodged the FIR has been examined as PW-1. He deposed in Court that when he was coming home, he had noticed deceased Panchanan Sarma lying dead on the road in front of the house of the appellant Tankeswar Sarma. According to him, he came to know from the members of the family of Panchanan Sarma that the deceased Panchanan Sarma was shot dead by the accused Tankeswar. He also stated to have seen PW-2 Satish Sarma at the place of occurrence and on being asked by him, Satish Sarma told that his father (deceased) was killed by Tankeswar Sarma. During cross-examination, this witness stated that there was long standing land dispute between the accused and the deceased. He also stated that accused Tankeswar Sarma used to reside most of the time at Guwahati.

6. PW-2 Satish Sarma is the son of the deceased Panchanan Sarma. He stated in his deposition that the accused had retired from the service of Air Force and they had land dispute with him for long time. On 14.10.2011, at about 7.30 A.M., accused Tankeswar Sarma shot his father with his pistol on the road in front of their house. He also stated that at the time of occurrence Tankeswar Sarma and his father were standing face to face at a distance of 10 ft. and the bullet hit the chest of his father. When his father fell down receiving the bullet injury, he raised alarm whereupon, Tankeswar Sarma shot at him and consequently he sustained injury on his abdomen. Hearing alarm raised by him, his wife Uttara Devi (PW-12) came to the place of occurrence followed by other people. During cross-examination, he deposed that there was no fencing in between his house and that of the appellant and the house of the accused is situated on the western side of their house. He further stated in his cross-examination that in the morning when he saw Tankeswar Sarma, he had charged him (deceased) for cutting their crops and also stated that he would lodge a complaint before the village headman, whereupon Tankeswar Sarma had shown him his pistol