P.K. Goswami, C.J.
1. This appeal is against the judgment of conviction Under Section 302, Penal Code, and sentence of imprisonment for life. The accused (Mrs. Meera Puri) is the wife of a certain Major in 10 Assam Rifles described as Major Puri, stationed at Mokokchung in Nagaland.
2. The prosecution ease is briefly as follows: On 4th April, 1969, at about 5.00 P. M., the deceased Miss Alemnaro Ao, a young girl of about ten years of age, was going by the circular road at Mokokchung with her mother Mrs. Asangla Ao (P.W. a), her aunt Miss Amenla Ao (P.W. 4) and her two cousins, who were the daughters of Obangtemjen Ao (P.W. 1). P.W. 1 has married the sister of P.Ws. ii and 4. This small party walking by theroad saw so me edible leaves below the road and the children went down to pick these up. At this time, two ladies were seen in the compound of Major Puri's house at a short distance from the hospital road which is at a higher level than the house situated on a slope of a hill. The area is hilly. The two ladies came down to the corner of their compound and shouted 'Jao Jao'. Alter that, two dogs came barking at them. Some earth was pelted at the dogs by the mother. The mother also called back the children to return. As the party was about to return, a 'Thak' Bound of a gunfire was heard and when they looked towards the side from which the sound was coming, they saw the accused lowering down a gun. The deceased was hit by a bullet and she immediately gave out that 'Mother, out of the two ladies the younger one has shot me'. The daughter was picked up by the mother and P.W. 4 was sent to report to P.W. 1. He came within about fifteen minutes and took the child to the military hospital, where however there was no doctor available and in an army vehicle she was brought to the civil hospital where the doctors treated her. The small child died two days after on 6th April, 1969 at 9-00 A. M. On the above facts, the accused stands charged Under Section 302, Penal Code for committing murder by intentionally or knowingly causing the death of Alemnaro Ao by firing at her with a .22 bore rifle.
3. Prosecution has examined sixteen witnesses, out of which P.Ws. 2, 4, 10 and 11 are the eye witnesses to the occurrence. Prosecution rests on their evidence as also on a statement of the deceased recorded by the doctor Longri Ao (P.W. 3) prior to her death. The statement is marked as Ext. P-3. Prosecution also examined Dr. L. M. Murry (P.W. 5), who found on postmortem examination one perforated wound on the left iliac fossa 1 1/2' medial to the left illi chest and another perforated wound at the back on the tip of the left 12th rib. There was no charring or blackening at or near the wound. On internal examination, he found small perforation in the small intestine at four places and one perforation in the large intestine. There was a tear in mesentery which had torn several mesentery vessels. There was also a perforating wound at the paoas muscle on the left side. Blood had collected in the peritoneal cavity. The first perforating wound was through and through and it corresponded to the second perforating wound at the back. No bullet was found inside the body. The size of the wound was quite small and he is not quite sure whether it could be caused by .22 bore bullet. He however opined that the injury was caused by some small bore fire arm. In bia opinion, death was caused due to intra peritoneal bleeding with generalised peritonitis causing circulatory failure and in the ordinary course it waa sufficient to cause death, In crosa.examination he states that he has not given the measurements of the wounds. The bask wound was about 4' higher in level than the front wound. He himself has fire arm and he knows its use.
4. Mr. N. Jauhari (P.W. 9) is the Assistant Director of Central Forensic Laboratory cum-Assistant Chemical Examiner to the Government of India in Calcutta. He is the Ballistic Expert to whom the rifle 'which waa produced by the husband of the accused and the ammunitions which were seized from the accused's house with the Samiz, underwear and frock which were in the wearing of the deceased were sent for examination by the police along with the report of the post mortem. He submitted his report Ext. P-7. He stated in court that after chemical examination he found that the rifle bore evidence of being fired before it was received by him. It was however not possible to give its duration. He examined the three garments. No blackening or charring was found around the bole in the garments. He could not give the distance of firing. The frock and the underwear were found to have one hole each corresponding to the wound on the left iliac fossa. No hole corresponding to the second wound on the tip of the left 12th rib could be found on any of the garments. P.W. 9 states that in the event of the frock hanging in the normal manner, this suggests the possibility that the holes in the garments are the holes through which the bullet entered before causing the wound on the left iliac fossa, According to him, it probably came out of the second wound of the left 12th rib but failed to penetrate the frock. The fact that the wound on the left 12th rib is located at a place where the body was not covered by the underwear could account for the absence of another hole in the underwear. He however stated that these observations needed confirmation in the light of observations made by the autopsy surgeon about the nature and appearance of the two wounds. Spectrogaphic examination revealed lead around the edges of the holes of the garments. The visual appearance of the holes was also similar to that produced by firing the ammunition seized from the accused's rifle (Ext. M. 4). He therefore concluded that the holes in the.garments could be produced by .22 bore rifle shot. He stated in the course of cross-examination that due to loss of energy it is possible that the bullet may not have passed through the garments after passing through the body and hence might have fallen down at the place where the victim was hit. He fired Eeven rounds from the seized rifle for experiment and tested by firing one round on a piece of cloth taken from the frock. Prom the evidence of the doctor as well aa the Ballistic Expert, it is established that the wounds found on the person of the deceased were caused by a bullet injury. We are also satisfied that that bullet was fired from the rifle seized from the accused's husband. The Ballistic Expert fired one round from this rifle with a bullet seized from the house of the accused through a piece of cloth taken from the frock and he has therefore sufficient materials on which he based his con. elusion, and we are satisfied that it is safe to depend upon his opinion. We are also satisfied that the child died as a consequence of the bullet injury.
5. The most important question is who has caused the bullet injury on the person of the deceased. The occurrence took place at about 5.00 P.M. After about fifteen minutes, P.W. 1 arrived and he sent the first information report to the Thana which was registered at about 6-00 P.M. P.W. 1 ia a Gazetted Officer and relation of the deceased. At the time of occurrence, P.W. 2 and the deceased were living with him. In the brief written report to the police station, he merely stated that 'one small girl named Alemnaro was shot at in abdomen from one quarter of Assam Rifles and now in military hospital. Kindly do necessary action immediately.' It is therefore submitted on behalf of the accused that the absence of the name of the accused in the first information report goes to show that no one knew who had fired from the rifle. P.W. 1, in the course of cross-examination, has stated that before he bad sent the written report to the police he was informed by the mother of the injured girl that the shot was fired at from Major Puri's house. He also stated in examination in chief that when the injured girl was taken from the place of occurrence to the Military Hospital, she had pointed out the house from where she was fired at by a lady after taking aim fit her. He also stated that P.W. 4 had met him as he was coming down from his house which is about two furlongs from the place of occurrence. She did not tell him who had fired. He also did not ask her about it. He further stated in cross-examination that after the arrest was made, he came to know that a woman was involved in the case. It is submitted that the evidence of P.Ws. 2 and 4 is unreliable judged from the evidence of P.W. 1 and the absence of the name of the accused in the first information report. Toe first information report is not a piece of substantive evidence. It is difficult to accept the argument that from mere absence of the name of the accused in the first information report, the entire evidence of P.W. 2 and 4 should be rejected. The first information report can be used to corroborate the statement of the informant or to contradict him. But, because of some infirmity in the first information report given by a witness who has not seen the occurrence, the evidence of the eye-witnesses cannot be rejected if otherwise the evidence is trustworthy. One has to re. member that P.W. 1 is a Government Officer and having not seen the occurrence, even if he could gather about the identity of the accused, he might feel hesitant to immediately put it in writing and might have intended only to set the police in motion for investigating into the case. Besides, the deceased being a relation and a small girl, he was more concerned about the medical attention which she would immediately need, rather than think about any other thing. We are therefore unable to give undue importance to the absence of the name of the accused in the first information report lodged in this case.
6. P.W. 2 states that when the dogs came barking at them, she requested the owner to call back the dogs and the owner was Mrs, Major Puri. She knew the accused from before the occurrence. She also knew the other lady who was standing there. She was the Ayah of Mrs. Puri. The age of the Ayah is about 40 years. The accused being about 22 years at the time of the occurrence must be the younger of the two ladies. There is absolutely no doubt that in the compound of the accused there were only two ladies, the dogs and two men in the neighbourhood. P.W. 2 in court has stated that 'after hearing that 'Thak' sound I looked that side and saw the lady (points out towards the accused) taking down a gun. My daughter told me that ''mother, out of the two ladies the younger one has shot me'. This is the first oral statement made by the deceased with regard to the bullet injury which later caused her death. This statement made by the de. ceased immediately she has received the injury is corroborated by her dying declaration re. corded next morning in the hospital. There she said:
I was shot at by a woman whom I saw from the courtyard of her quarter. The same quarter from which doga came out.
I saw her aiming at us then immediatly I was hit.
I can show the quarter and identify the person.
I can show the place where I wa standing.
It is an Assam Rifle Officer's quarter.
The oral, statement of the deceased and her recorded statement clearly establish that the younger lady fired the shot. The medical evidence corroborates the bulle? injury in the person of the deceased. P.W. 2 however stated in cross-examination that she told P.W. 1 that Mojor's wife bad shot, but she did not specifically say that it was Mra. Puri. She also stated that her daughter bad told P.W. 1 in the hospital that Major's wife had fired at her. She also stated that she had herself seen the accused lowering down the gun. In cross-examination she denied the suggestion that she had not told the police that Mrs. Puri had fired. The police officer (P.W. 14) had confirmed that she had not told in that manner. It is however very difficult to appreciate this question, as it is nowhere suggested to her that she had not stated that Major's wife had shot as the witness clearly stated that she had not referred to the accused as Mrs. Puri, but as Major's wife. This question in this form, therefore, was very much confusing to the witnesses.
7. P.W. 4 is the other eye-witness who has corroborated P.W. 2. She knew the accused as wall as the Ayah from before the occurrence. She had often seen the Ayah carrying a baby. She stated that as they were about to go back. 'Thak''sound of gunfire was heard. She looked that aide and saw the gun being lowered by the accused (pointing out towards the accused). She further stated that the deceased pressed her stomach and said that out of the two ladies the younger one had fired at her and so saying she collapsed. She immediately went home and found that one of the two other small girl had already informed P.W. 1 and when she reached home P.W. 1 was already stepping down from the house to proceed to the place of occurrence. She stated in cross-examination that when the lady was seen lowering down the gun, there were two men also in the neighbourhood and the Ayah was near the baby. She had not seen those men when the dogs were set at them with the words 'Jao Jao'. She was asked in cross-examination whether she stated specifically before the police that one of the two ladies was 'wife of that Major'. She replied: 'I had stated before the Police like that'. The police officer (P.W. 14), however, proved that she had not stated before him that one of those two ladies was 'wife of that Major'.
8. Major Jagjit Singh (P.W. 10) is another eye-witness. In 1969 he was posted to Transport Platoon of the Assam Rifles at Mofaok-ehung. He was transferred from Mokokchung in September 1969 and he was stationed tit Kerala before proceeding on leave to his borne town at Patiala, from where he came and gave evidence in January, 1970. He saw the co-occurrence from the gate of the Gurdwara which was nearby and ha was their with a carpenter (P.W. 11) who was called to take measurement of the gate of the Gurdwara. Ma stated as follows:
I heard some noise and barking of dogs. These persons ran towards the upper road shouting and the dogs were after them. While running to the upper road they picked up something to keep the dogs away. When they had reached the upper road and the doga were 15 to 20 yards away from them, I heard a .22 bore rifle fire. I saw Mra. Major Puri aiming .22 bore rifle towards these persons (ladies and children). After the firing, the girls shouted and ran away. There was a sharp bend after 5 yards and I did not see what happened after that.
It is suggested in cross-examination that this witness bears grudge against the accused as he had behaved rudely with her in one of the parties, The witness denied this suggestion. The witness was asked about some irregularity in the matter of missing of 9000 litres of petrol from his department. He stated that there was such a report at a time when ha was out of the headquarters at Jorhai He denied the suggestion that the enquiry into the matter had been ordered by Major Puri. He asserted that it was Col. Pathania who was the then Commandant of 10 Assam Rifle had passed the order for enquiry. The suggestion was that he had some misunderstanding with Major Puri about thi3 incident. The witness however emphatically denied the same. The evidence of this witness has been commented upon by the learned Counsel for the accused on the ground that he was examined by the Police on 4-5-1969 although he had stated in his evidence that he was examined by the police 'after about ten days or so after the incident.' He also admitted to have given a written report to the police en being asked to do so by the police and the police officer also admitted that this was taken as he might not be available later. It is also pointed out that the witness had stated before the police that 'he saw Mrs. Meera Puri standing in front of her house with a .22 bore rifle in her hand,' whereas in court he ha3 stated that she was aiming the rifle towards the children. The witness explained that 'the rifle was in Mrs. Puri's hand but it was supported from the shoulder and hence I inferred that it was aimed.' From the above, it is suggested that this witness is absolutely unreliable and his evidence should be rejected. It is true that the police ought to have been able to find this witness soon after the occurrence and recorded his statement, it; mutt be however lomembered that he is a Major in the Army and his unwillingness to volunteer against the wife of a colleague without being asked may be natural in the entire circumstances in which these army-men are placed in an out of the way hill-station. The comment about his examination by the police about ten days or go after the incident can also be attributed to an honest inaccuracy which by itself is not sufficient to dub this witness as a liar. When he gave evidence in .January, 1970 after about nine months of the occurrence when he had already lost touch with the place and the people, it may be natural to have made such a bona fide mistake, the trial court bus observed the demeanour of this witness and has accepted his evidence. We ate also satisfied that his evidence is trustworthy.
9. Mangha Singh (P.W. 11) is the remaining eye-witness- He is a carpenter and he corroborates P.W. 10. He stated that 'when the children reached the bend, I heard a sound of 'tak' and saw Memsaheb with a rifle on her shoulder. It was a .22 bore rifle. I knew Memsaheb very well since before. She is present here in court (points out towards the accused).' He has deposed about some approach by tha accused's relations to prevail upon him not to give evidence. The trial court haa also observed the demeanour of this witness and accepted his evidence as reliable. He stated in cross-examination that due to fear he had not gone to the place of occurrence himself. Ho also did not tell anyone about his seeing the occurrence at that time. He further stated that he was examined by the police 5 or 6 day3 after the occurrence and was called to the police station for that purpose. The approach of the accused's servant and relation was after about 10 or 15 days of the occurrence. He also admits that P.W. 10 had helped his wife during her serious illness when the witness was away from home. It is strenuously contended that this witness is a false witness on his own evidence as he was examined by the police only on the 30th of April, whereas he has stated in bis evidence that he was examined 5 or 6 days after the occurrence. We are not prepared to reject the entire testimony on the sole ground that he has stated before the court that ha was examined by the police 5 or 6 days after the occurrence, when, in fact, the police officer had deposed that he was examined 26 days after the occurrence. He has corroborated the evidence of P.Ws. 1 and 2 regarding the circumstances in which the incident has taken place and it is difficult to hold that he would be deposing falsely against the accused only at the request of P.W. 10 against whom also no grudge has been established. We therefore accept his evidence as reliable.
10. It is also pointed out by the learned Counsel that the learned Judge has not relied upon the evidence of P.Ws. 2 and 4 with regard to the identity of the accused. It is well settled that even if the trial court rejects certain evidence there is no legal bar in the appellate court accepting such evidence if it appears to be trustworthy after considering the entire evidence independently. It is how-ever true that the appellate court in doing so will give due weight to the appreciation of evidence by the trial court. In this case, how-ever, the trial court has not absolutely rejected the testimony of P.Ws. 2 and 4. It has accepted their testimony on all matters except with regard to the identity of the accused on the ground that these two witnesses have not identified the accused in a test identification parade arranged by the police. If therefore we are satisfied that the identity of the accused is satisfactorily established, this observation of the trial court would not be of much consequence. We also do not think that absence of a test identification parade in this case is of great consequence. P.Ws. 2 and 4 knew the accused from before and knew her to be the wife of the Major. In this view of the matter, the test identification parade would not be of great weight. As pointed out earlier, the fact that the deceased immediately shouted out that the younger of the two ladies had fired and there were only two ladies, the accused and her Ayah who was much older than the former, and the Ayah being busy with the baby the identity of the accused is clearly established in the evidence. Both P, Ws. 2 and 4 state about the deceased's immediate statement after being bit by the bullet and this statement has not at all been challenged in cross examination. The deceased also made a similar statement in the dying declaration. P.Ws. 10 and 11 have also identified her having seen her with the rifle in her hand immediately after the report of the gun fire. We have, therefore, no hesitation in coming to the conclusion in agreement with the finding of the trial court that the accused fired from the rifle that has been seized and the bullet discharged from the rifle in her hand hit the deceased.
11. Having arrived at this conclusion, (he next important question is what offence has been committed by the accused. In other words, has the ; offence Under Section 302, Penal Code, been made out Mr. J. P. Mitter, the learned Counsel for the accused, has drawn our attention to the following observations in the judgment of the trial court .
In the instant case the accused has not pleaded that she had fired the shot to drive away the dogs which were running after the girl and by accident or by mistake the bullet had hit the unfortunate girl, or that she had fired the shot only to frighten away the girls without meaning to hit them, but by mistake one of the girls was hit. In the first case only an offence Under Section 301A, Penal Code might have been made out and in the other under S. 304A or at worst Under Section 304, Penal Code, In either case the punishment would have been quite light and even might have consisted of heavy fine only. However, no such pleading or even suggestion was made. On the other hand the accused had totally denied the entire occurrence.
It is not correct in law that unless an accused takes a specific plea by way of defence he may be deprived of the benefit of a position to which he may be entitled in law emerging out of the evidence and circumstances disclosed in the trial. The learned Counsel relying on the above observations of the trial court has strenuously argued that no case Under Section 302, Penal Code, has been made out and there is no question of oven conviction Under Section 304-A, Penal Code. When this was put to the learned Advocate-General, Nagaland, who is appearing on behalf of the State, he contends that according to him the charge has been made out and, at any rate, there is no escape from conviction Under Section 304-A, Penal Code. We have seen from the evidence of the Ballistic Expert that he could not give any idea about the distance from which the bullet was tired. We have however the evidence of the eye-wit-nesses wherefrom it is clear that the distance is not too far as the nearest point of the circular road near-about which the deceased was standing would be 35 to 40 yards from the accused's quarter. P, W. 9 has also stated that due to loss of energy the bullet may not have passed through the garments and might have fallen down where the victim was hit. The bullet was however not found at the place of occurrence, nor was it found inside the body. The entire area was hilly and the place from where the accused fired was lower than where the deceased was standing. According to P.W. 10, the children were outside the compound on a slope which wa3 higher than the roof of Major Puri's house. He also stated in cross-examination that there was a temporary telephone post on the circular road which was more or leas in line with the residence of Major Puri,Mr. Mitter submitted that the injury could only have been caused by a bullet which had touched off some object and in consequence ricocheted at. an angle before hitting the child and that the angle which the bullet had thus ricocheted was reflected in the injury itself. The examination of the Ballistic Expert was not adequate and it is not possible on the evidence as it is to come to a conclusion one way or the other on the point raised by the learned Counsel. It is however difficult to say that there is no force in the submission made by the learned Counsel. It is therefore possible that the accused might have fired the shot to scare away the dogs or to divert the attention of the charging dogs from the children. The children wore already alarmed and the mother was throwing earth towards the dogs who were running after the children. We are therefore prepared to give the accused benefit of doubt with regard to the offence Under Section 302, Penal code, and hold her not guilty under that section. We are not satisfied that the accused intended to cause death of the deceased by firing or knew that by this act of hers she would cause death of the deceased. That how-over does not absolve her from the responsibility for her reach and negligent act in firing towards the dogs with the children about, in a way completely regardless of the safety of human life in an undulating hilly area as it is. The accused let go the loaded rifle rashly and negligently without due care and attention for the safety of the children and other persona in the neighbourhood and also of those who may be using the public road.
We have not accepted that she aimed at the deceased child or fired at the party with the deliberate intention of causing death to her or to any one of them. P.W. 10 only inferred that she was aiming at t.b. 8 children. The dying declaration mentions aiming, but in view of the fact that the deceased and P.W. 10 were standing at different levels from the accuaad, who was admittedly standing at a lower level, it is possible that both the deceased and P.W. 10 were honestly believing that the accused was aiming towards the children. It is probable therefore that she was aiming at the dogs or aiming high or upward from her lower level and this act of the accused cannot be conclusively held to be intentionally or knowingly aiming to kill the girl or anyone in the party because of the fact that the latter may be disturbing the dogs and the tranquillity of the bungalow by throwing stones at them and on the roof. We are therefore satisfied that the evidence produced by the prosecution has established a charge Under Section 304-A, Penal Code, against the accused. 1971 By her act in firing from the rifle in the way she did with the full knowledge of the children and others nearabout, she has done a rash and negligent act, which, although does not amount to culpable homicide, brings her within the mischief of Section 304-A, Penal Code. We consider her rash and negligent act in firing in that way as culpable rssbneea and negligence and not merely an error of judgment o defect of (sic) intelligence. Death of the child is the direct result of her rash and negligent act in firing the rifle. This rash and negligent act of beta is the direct, Proximate and efficient cause of the child's death. The Supreme Court in Mohd. Rauga walla v. Maharashtra State A.I.R. 1965 SC 16iG at p. 1618, hag approved of the following observation of Sir Lawrence Jenkins in Emperor v. Onkar Rampratap (1902) 4 Bom L R 679 :
To impose criminal liability tinder Section 304A, Penal Code, it is necessary that the death should have been the direct result of a rash arid negligent act of the accused, and that act most be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non.
As has been stated in Chamman Lai v. State : AIR1954All186 :
criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take.
Similarly, in Tika Bam v. Res : AIR1950All300 , it is observed as follows :
This Section (referring to Section 304-A) obviously does not apply to cases where there is an intention to cause death or knowledge that the act done will is all probability cause death. It only applies to cases in which, without any such intention or knowledge, death is caused by what is described as a 'rash' or ''negligent' act A negligent act is an act done without doing something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or an act which a prudent or reasonable man would not do in the circumstances attending it.
In a case of causing death by firing, reported in : AIR1954SC271 Badhu Singh v. State of Pepsu, the facts of which may be briefly mentioned: A, a mahant, went to the house of B who was hiring drink party. B was respectful to A and was over-anxious to show all hospitality to him. B was anxious that the Mahant should not go away from his house without taking meals and spending the night with him and seeing that he was going away, in all probability let go his gun without aiming it at the Mahant in order to prevent him from leaving his place by terrifying him to some extent. The shot hit A in cheat and he died of the wound later on. On the above facts, their Lordships of the Supreme Court held, that:
On the materials placed on the record it could not be held proved that B had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication ill order to aee that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on B's part or at the worst was an act which would amount to manslaughter. It could not be held to constitute an offence of murder. B was, therefore, held guilty of an offence Under Section 304A, Penal Code and sentenced to imprisonment already undergone by him.
This was a case in which the accused was convicted by the trial Court Under Section 308, Penal Code and sentenced to transportation for life which was affirmed by the High Court and the Supereme Court acquitted him Under Section 302, Penal Code, but sentenced him Under Section 304A, Penal Code as noted earlier. We are also dearly of-opinion that in the instant case the accused has committed an offence Under Section 304A, Penal Code. We therefore hold her not guilty Under Section 302, Penal Coda and set aside the conviction and sentence under that section.
12. The accused is convicted Under Section 304A, Penal Code, and sentenced to the period of imprisonment of four months undergone by her and also to pay a fine of Rs. 2,000, in default to undergo rigorous imprisonment for two months the entire fine, if paid, shall ho paid as compensation to P.W. 2, the mother of the deceased. The appeal is allowed as indicated above and conviction and sentence altered accordingly.
H.C. Pithak, J.
13. I agree.