R.K. Das, J.
1. The appellant has been convicted under Section 307, I. P. C. and sentenced to R. I, for seven years, by the order dated 20-12-1963, passed by the Sessions Judge, Ganjam 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 Section 307, I. P. C., and the other under Section 19(1) 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 Section 39 of the Indian Arms Act for prosecution had not been obtained. He, however, convicted the accused under Section 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 fire. 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 suggested by the defence is that when the three brothers, Banshl, Narayan and Sana (P. W. 7) assaulted the accused, the latter in order to save his life brought out the gun to make some blank fires, but as the trigger was accidentally pulled the gun exploded and hit P. W. 4. There is no evidence to show that the accused was in fact assaulted by any of the witnesses and that the accused used the gun by way of self defence. There is nothing to show that the accused had any injury on his person as a result of the assault suggested by the defence. Thus the case of right of private defence or of any accidental shot attempted to be made out, has not been made out on evidence.
6. That P. W. 4 received some injuries by the gun shot is admitted by the accused. It has also been proved by the evidence of the doctor, P. W. 11. The doctor examined the injured and found an ulcer on the right side of the chest of P. W. 4. In the ulcer there were three gun shot wounds, and each of these wounds had an entrance, but without any corresponding exit wounds. After operation the doctor recovered some pellets from the wounds. According to the doctor these injuries might, have been caused by gun shots and had the shot gone a little deeper so as to affect the lungs, the injured would have met his death. Thus it is established beyond doubt that it was the accused who fired his gun aiming at P. W. 3 which struck against P. V, 4 causing the Injuries as noticed by the doctor.
7. The next question is as to what is the offence committed by the accused. The accused was charged under Section 307 I. P. C. To make out a case under Section 307, it is necessary to establish that It was the accused who did the act and that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death, he would have been guilty of murder. The intention of the accused has to be gathered from his act and the surrounding circumstances. When the accused fired the gun shot from a close range which hit the chest of the injured (P. W. 4) the only reasonable inference in the circumstance that can be drawn is that he either had the intention to kill P. W. 4 or had the knowledge of the fact that such act of his would ordinarily result in the death of the injured. In other words, if Narayan would have died as a result of the gun-shot injury, the accused would have been guilty of murder. The admitted case of the prosecution is that it was not the intention of the accused to fire the shot at Narayan but he was definitely aiming at Banshi. It was urged that in such a case the accused could not be held guilty of murder so as to be made liable under Section 307 II, I. P. C, Section 301, I. P. C. however, provides that such a person would still be held guilty of murder as if he caused the death of a person (in this case Banshi) whose death was intended to be caused. The further question that arises whether the principle of law laid down in Section 301 I. P. C. would also be applicable to a case of attempt to murder punishable under Section 307, I. P. C.
8. In a case reported in 37 Cr. LJ 25 : AIR 1935 Pesh 74 Amir Sadat Saha v. Emperor an identical question was raised. In that case the gun shot hit one Lawanff Saha though it was meant for another person. The question that arose was whether the accused could be convicted under Section 307 I. P. C. It was held that the effect of the two Sees. 301 and 307, I. P. C., read together is that an accused person who shoots at A and wounds B by mistake would be guilty under Section 307, although he has not been able to get the person whom he Intended to injure. To make Section 307 applicable, it is not necessary that the hurt must be caused even to person against whom the shot was aimed at. Mere attempt is sufficient and the causing of hurt is only an aggravating circumstance and that is why two kinds of punishments have been provided under Sen. 307, that is, one for the mere attempt and the other for causing hurt as a result of such attempt. It cannot therefore be reasonably argued that unless the injury caused is sufficient in the ordinary course of nature to cause the death of the person injured, the Inference of intention to kill contemplated under Section 307 cannot be presumed. But all that is necessary to establish the intention under Section 307 is the nature of the act done Irrespective of the fact that whether that act is a penultimate act or not. In the case reported in : 2SCR254 Om Parkash v. State of Punjab their Lordships held that a person commits an offence under Section 307 when he has Intention to commit the murder and In pursuance of that intention does not act towards its commission irrespective of the fact whether that act is the penultimate act or not. Therefore the contention that Section 307 I. P. C. has no application to the case of the accused is of no avail.
9. It was contended on behalf of the appellant that the story as put forward at the trial is not in conformity with the story as given in F.I.R. But this also is not correct. That apart, the F. I. R. is not substantive piece of evidence. P. W. 2 the Mutha-head of the village was the person who lodged the F. I. R. as narrated to him by F. W. 8. Moreover he was not confronted with the contents of the F. I. R. with a view to elicit an explanation from him about the alleged inconsistency.
10. In view of the evidence and position of law as discussed above, there is no room for doubt that the accused has committed an offence under Section 307 II, Indian Penal Code, and his conviction under the said section must therefore be upheld. Taking, however, the circumstances of the case and the fact that the act was done at the spur of the moment, I am of the opinion that a sentence of five years R. I. would meet the ends of justice in this case. While therefore maintaining the conviction of the accused under Section 307, I. P. C., I would reduce the sentence to five years' R. I. and with this modification in the sentence, the appeal is dismissed.