A person who shoots at one person and wounds another by mistake is guilty of attempt to murder under Section 307, IPC.

JUDGMENT

DAS, J. :

The appellant has been convicted under Sec. 307, I.P.C. and sentenced to R.I. for seven years, by the order dated 20-12-1963, passed by the Sessions Judge, Can jam Boudh.

2. The prosecution case may briefly be stated as follows : On 25th August, 1962 at about 9 P.M. the accused Surendra Bidoi came in a drunken state and abused the people in the village in filthy language. P.W. 3 Banshidhar asked the accused not to behave like that and to go home and sleep quietly. But the accused resented this and abused P.W. 3 and threatening to set him right, brought out a gun (M.O. I) from his house and aimed it at P.W. 3, but the shot struck P.W. 4 Narayan Bisoi Who was standing near P.W. 3. Thereafter P.W. 5 Mangala Bisoi and P.W. 6 Chandrapani Bisoi snatched away the gun from the hands of the accused. P.W. 3 taking the gun and the injured Narayan with him went to P.W. 2 the Mutha head of the village and informed him about the incident and P.W. 2 lodged the F.I.R. (Ext. 1) at the Police Station. After investigation the accused was charge-sheeted and after commitment was placed under trial before the Sessions Judge of Berhampur.

3. Two charges were framed against the accused, one for committing an offence under Sec. 307, I.P.C., and the other under Sec. 19(f) of Indian Arms Act. The learned Sessions Judge acquitted the accused of the latter charge on the ground that the requisite sanction of the District Magistrate under Sec. 39 of the Indian Arms Act for prosecution had not been obtained. He, however, convicted the accused under Sec. 307, I.P.C. and sentenced him as above.

4. In support of the prosecution case, a number of witnesses have been examined including the victim, P.W. 4.

The accused also made a confessional statement (Ext. 1) before a 1st class Magistrate, P.W. 1. There he admitted that he was drunk. But his plea was that P.Ws. 3, 4 and 7 were also drunk and when they assaulted him, he with a view to save himself fired the gun. In the committing court also the accused admitted that he moved in a drunken state on the night of occurrence, but denied to have abused anybody in filthy language. He owned the gun to be his and stated that there was a quarrel between him and the three brothers, P.Ws. 3, 4 and 7 and when all the three brothers attacked him, he went home and brought out the gun and wanted to have a blank lire. But one of the brothers disturbed him by catching hold of the gun and in course of struggle the trigger fell down and the shot hurt Narayan. His statement at the trial was almost to the same effect though he denied to have been in a drunken state. Thus, the accused admitted the prosecution story to the extent that it was his gun-shot that hit Narayan (P.W. 4) on the night of occurrence, though he denied the essential part of the prosecution story that he intentionally fired the gun aiming at Banshidhar (P.W. 3) which struck his brother Narayan who was standing nearby. The question therefore is whether it was an accidental shot or whether it was deliberately fired by the accused to hit P.W. 3.

5. Of the eye-witnesses, it is the case of P.W. 3 that on the night of occurrence when the accused in a drunken state was abusing people in filthy language, he advised him to take rest to which the accused protested and immediately going inside his house, he brought out a gun and fired a shot aiming at him, but the shot hit the right side collar bone of his brother Narayan who was standing nearby and Narayan fell down. Thereafter P.Ws. 5 and 6 snatched away the gun M.O. 1 from the hands of the accused. To the same effect is the evidence of the victim Narayan himself. He has fully supported the evidence of P.W. 3 and has further added that at the time of occurrence he was putting a banian, M.O. II which got torn by the gun shot. The evidence has been consistently supported by the witnesses, P.Ws. 5, 6 and 7. Nothing has been brought out from these witnesses to discredit their statement in Court. All that was suggest