JUDGMENT [ENTITY], J.
1. The sole appellant has been convicted under [SECTION] of the [ACT] (hereinafter referred to as 'the [ACT]') and sentenced to undergo rigorous imprisonment for life. The charges under [SECTION] of the [ACT] and [SECTION] of the [ACT] were also framed against him and he was acquitted of the same. Besides the appellant, two other accused were also put on trial to face the charges under [SECTION], [SECTION] and [SECTION] of the [ACT] and they were acquitted.
2. The incident, giving rise to this appeal, took place on the 20th of May, 1983, at about 9 p.m. at village Kritpura within Buxar police station in the district of Bhojpur. The case of the prosecution, as disclosed in the fardbeyan lodged by P.W. 11, [ENTITY], is that at the time of occurrence, the [ENTITY] ceremony of the sons of [ENTITY] was to be held at his residence. Many villagers, including [ENTITY] the first cousin of the informant, had gone to the residence of [ENTITY] to see the function. While arrangement was being made for performing the [ENTITY] ceremony, appellant [ENTITY] went near Shankuntala and fired a country-made pistol from close range causing injury on her head. Having sustained the injury, [ENTITY] fell down. One [ENTITY], who was sitting by the side of [ENTITY], also sustained some pellets injuries. [ENTITY], [ENTITY], [ENTITY], [ENTITY] and others, who were also present there to participate in the [ENTITY] Ceremony, caught the appellant. Accused [ENTITY] and [ENTITY] appeared there and held out threat and got the appellant released from the clutches of the said persons. The accused, including the appellant, were identified in the light of petromax. Injured [ENTITY] was taken to the Buxar Hospital, where she succumbed to the injury.
It is stated in the fardbeyan that [ENTITY], the elder sister of [ENTITY], was married with the appellant about 6 or 7 years before the occurrence. [ENTITY] died about two and half years prior to the occurrence. After her death, the appellant wanted to marry [ENTITY], which was not approved by her parents. On their refusal, the appellant held out threat that he would not allow the marriage of [ENTITY] to be performed with any one else and would kill her whenever he would get a chance. The Fardbeyan of [ENTITY] was recorded on 20-5-1983 at 11 p.m. in the out door of the Hospital at Buxar, on the basis of which a formal FIR (Ext. 6) was drawn up. The Police registered a case and after investigation submitted charge-sheet.
3. Out of the eleven witnesses, examined by the prosecution in the trial court, P.W. 2 [ENTITY], P.W. 3 [ENTITY], P.W. 4 [ENTITY] and P.W.6 [ENTITY] deposed as eye-witnesses of the occurrence. P.W. 9 Dr. [ENTITY] conducted autopsy over the dead body of [ENTITY]. P.W. 10 [ENTITY], the Sub-Inspector of Police, conducted investigation into the Case. P.W. 5 [ENTITY] gave hearsay version of the occurrence. P.W. 8 [ENTITY] was tendered by the prosecution for cross-examination. P.W. 1 [ENTITY], P.W.7 [ENTITY] and P.W. 11 [ENTITY] were declared hostile.
4. No witness was examined on behalf of the appellant. It appears that he took the plea of innocence and set up the defence that the guests who had come to offer [ENTITY], fired gun to celebrate the occasion and accidentally one of the shots hit [ENTITY]. Further defence of the appellant was that after the death of [ENTITY], he demanded her ornaments from his father-in-law and mother-in-law, which annoyed them and, thus, he was falsely implicated in the case.
5. As mentioned above, P.W. 1 [ENTITY], in whose house the [ENTITY] ceremony was arranged and the informant, P.W. 11 [ENTITY] were declared hostile by the prosecution. Their attention was drawn to their statements recorded by the Police in which they had narrated the occurrence as eye witnesses. P.W.7, [ENTITY], was also declared hostile. In view of their contradictory statements, their evidence is not of any use to either party.
Learned counsel for the appellant fairly conceded that their evidence was not of any aid for just decision of this appeal.
6. P.Ws. 2, 3 and 4, residents of village Kritpura, state that on 20-5-1983 at about 9 p.m. they went to the house of [ENTITY] to attend the [ENTITY] Ceremony of his son. Many persons of the village, including male and female, had collected to attend the function. P.W. 2 stated that a lighted petro-max was kept in the courtyard of the house. They saw the appellant firing a country made pistol at [ENTITY], causing injury on her. [ENTITY] also sustained some pellets injuries. P.W. 2 said that appellant, [ENTITY], wanted to marry [ENTITY] after the death of his first wife. As this relationship was not acceptable to the family members of [ENTITY], so the appellant committed the offence.
P.Ws. 3 and 4 further stated that they caught the appellant with the help of others. In the meantime, accused [ENTITY] and [ENTITY] appeared and threatened them. They released the appellant out of fear. It was also supported by P.W. 2.
7. P.W.6, [ENTITY], is the mother of the deceased. She stated that in the night of occurrence, she went to the house of [ENTITY] to attend the [ENTITY] ceremony of his sons. She was accompanied by her daughters, namely, [ENTITY] and [ENTITY]. Besides them, P.W. 11, [ENTITY], also went with her. She noticed that [ENTITY] whipped out a pistol from his waist and fired at [ENTITY] causing injury to her. [ENTITY] also sustained pellets injuries who was sitting just by the side of [ENTITY]. Appellant [ENTITY] wanted to run away after committing the offence, but he was overpowered by some persons. When asked, she stated that she could not say what happened thereafter, as she was busy in attending her injured daughter, [ENTITY] was sent to Buxar Hospital. Where she died. She also stated that [ENTITY] was married in a village in Uttar Pradesh and was not in position to appear in the court because of flood at her in-law' place and also as a child was born to her only few days earlier. She further said that strained feeling had developed between her family and P.W. 11 [ENTITY], and he was gained over by the accused.
She also stated that her daughter, [ENTITY], was married with appellant [ENTITY], after death of [ENTITY], the appellant wanted to marry [ENTITY], but she did not agree. When asked, she said that the appellant, fired pistol at [ENTITY] from a close range.
8. P.W. 9, Dr. [ENTITY] was posted as the Second Medical Officer in the Sub-Divisional Hospital at Buxar at the relevant time. On 21-5-1983 at about 8.30 a.m. he conducted the post mortem examination over the dead body of [ENTITY] and found the following antemortem injuries :
i) One oval perforating wound 1/4" X 1/ 6" X skull bone deep with blackening and charring with inverted margin on the lateral aspect of the upper eye lid. This was the wound of entry.
ii) One oval perforating wound 2" X 1/2" X skull bone deep with blood clot with brain substance protruding with everted and lacerated margin on the right parietal bone 3" above right ear. This was the wound of exist.
According to the Doctor, the death was due to shock and haemorrhage as' a result of the fire arm injury caused from close range. The time elapsed since death was within twelve hours. He opined that the injury was sufficient to cause death in the ordinary course of nature. He proved the post mortem report, which was marked at Ext. 2.
9. He also examined [ENTITY] on 20-5-1983 at about 10.05 p.m. and found the following injuries:
i) Black abrasion with blood clot 1/6" in diameter.
ii) Black abrasion on the middle of forehead in between eye-brows.
iii) Black abrasion right upper eye-lid.
iv) Black abrasion on right cheek.
v) Black abrasion on right wrist.
In the opinion of the Doctor, the injuries were simple in nature caused by fire arm gun powder. The age within twelve hours.
10. P.W. 10, [ENTITY], the Sub Inspector of Police, was attached to Buxar Muffasil Police Station on 21-5-1983. On the same day, he received the fardbeyan recorded by [ENTITY], the Sub Inspector of Police. On the basis of the said fardbeyan, a formal F.I.R. (Ext. 6) was drawn up. The investigation of the case was entrusted to him.
He inspected the place of occurrence on 21-5-1983 at 10 a.m. According to him, the place of occurrence is the residential house of [ENTITY] of village Kritpura. There were two apartments (Kita) in the house. In the eastern varandah of the eastern apartment, he found a piece of gunny bag near a pillar. He found blood over the said gunny bag. A pair of chappel, stained with blood, was also seen there. He also found one empty cartridge of rifle. He seized blood-stained articles and empty cartridge and prepared a seizure list (Ext. 7). After completing the investigation, he submitted charge sheet in the case.
11. Mr. [ENTITY], learned Senior Counsel appearing on behalf of the appellant, first contended that the appellant did not shoot at [ENTITY] deliberately. The firing was accidental. So, the conviction of the appellant under [SECTION] of the [ACT] was not maintainable.
11-A. Mr. [ENTITY], learned counsel for the State, on the other hand, urged that there was no material on the record to show that [ENTITY] became victim of accidental firing.
12. P.Ws. 1, 3, 4 and 6 all stated that the appellant went near [ENTITY] and fired country made pistol, causing injury on her head. It has also come in their evidence that the firing was resorted to from very close range. According to the Doctor (P.W. 9) injury No. 1 was the wound of entry. It was located on the lateral aspect of the left upper eye-lid with blackening and charring marks with inverted margin. The medical evidence amply supports the ocular evidence that the injury was caused to [ENTITY] by fire arm from very close range. Thus, it is not possible to accept the argument advanced on behalf of the appellant.
13. It was, next, contended that after the death of his first wife, the appellant was married about two and a half years before the occurrence. After his second marriage, the appellant was no longer interested to marry [ENTITY]. According to Mr. [ENTITY], it was highly improbable that the appellant would have caused injury to [ENTITY].
14. There is no substance in this argument. The occurrence took place at about 9 p.m. on 29-5-83. Thereafter, [ENTITY] was carried to the Buxar Hospital, where she breathed her last. The fardbeyan of this case was recorded within a short period in the hospital itself at 11 p.m. in which it is mentioned that after the death of his first wife, appellant, [ENTITY], wanted to marry [ENTITY] and his proposal was turned down by her parents. It is also mentioned therein that the appellant had held out threat that he would not allow [ENTITY] to marry any one else and would kill her whenever he would get a chance. It appears from the evidence of P.W.6, the mother of [ENTITY], that the appellant did not visit her house after his proposal to marry [ENTITY] was turned down. The [ENTITY] ceremony in the village was one of the occasions, were villagers. Including ladies, collected at the residence of [ENTITY] to attend the function. The appellant got a chance and caused injury to [ENTITY].
15. It was strenuously argued by Mr. [ENTITY] that the conviction of the appellant under [SECTION] of the [ACT] could not be maintained on the doctrine of res judicata. Submission was made that the charge under [SECTION] of the [ACT] was framed against the appellant on the allegation that he was in possession of a fire-arm and used the same to cause the death of [ENTITY]. He was acquitted of the said charge. The finding of acquittal under [SECTION] of the [ACT] fully established the innocence of the appellant with regard to that charge. It was not open to the respondent State to dispute the said finding when no appeal against acquittal was filed against it. The verdict of acquittal would mean that the prosecution could not establish that the appellant was in possession of any fire-arm at the time of occurrence and consequently it could not be held that he had committed the murder by means of a fire-arm. Reliance was placed by learned counsel for the appellant on [ENTITY] v. State of Punjab AIR 1956 SC 415 : (1956 Cri LJ 805).
In that case the accused was acquitted of the charge under [SECTION] of the [ACT] in the trial. It was argued on behalf of the accused in the subsequent trial on the charge of murder with fire arm that the said finding of acquittal recorded in the previous trial was not open to challenge on the basis of the principle of res judicata. It has been held by the Supreme Court that the effect of a verdict of acquittal pronounced by a comptent court on a lawful charge and after a lawful trial is and conclusive in all subsequent proceedings between the parties.
16. It was contended by learned counsel for the State that in the instant case, unlike [ENTITY]'s case ([PRECEDENT] (supra), the appellant was convicted of one charge and acquitted of the other in the same trial. Therefore, the legal bar, created by the doctrine of res judicata was not applicable to the facts of this case.
17. Confronted with the argument advanced by learned counsel for the State, Mr. [ENTITY] switched on to another point and urged that on the principle of issue estoppel, the finding of acquittal recorded under [SECTION] of the [ACT] by the trial court had the binding effect even in the subsequent stage of the same proceeding. In support of this contention, reliance was placed on [PRECEDENT] and emphasis was laid on the observation quoted hereinbelow (para 4):
"The question here is not whether the ingredients of the two offences are the same or substantially the same. That question would be relevant if the plea was one of autrefois acquit or autrefois convict, the question is not even of 'issue estoppel' properly so-called as there were no separate trials. The question really is about the binding force and the conclusive nature, at later stage of a case, of a finding of fact finally determined were no separate triaat an earlier stage of the case. The question is not res integra. In Bhagat Ram v. State of Rajasthan ([SECTION]2) 2 SCC 466 : ([SECTION]2 Cri LJ 909) and State of Rajasthan v. Tarachand Jain, ([SECTION]4) 3 SCC 72 : ([SECTION]3 Cri LJ 1396), it has been held by this Court, an earlier finding which had attained finality is binding in the subsequent proceedings in the case. The question about the binding force of a finding at an earlier stage would depend on the question as to what the allegations were, what facts were required to be proved and what findings were arrived at."
18. For proper appreciation of the principle laid down in the said case, it is worthwhile to notice some of its relevant facts. In that case, the accused were charged under [SECTION], read with [SECTION] of the [ACT] for cheating the Government by dishonestly making false declaration in the gate-passes. Another charge was framed under [SECTION], [SECTION] of the [ACT] for wilfully making false entries in the gate passes with intent to defraud the Government of excise duty. The accused were acquitted of the charge under [SECTION], [SECTION] of the [ACT] by the trial Court. At the appellate stage, they were also acquitted of the other charge. Two appeals were filed by the State, one against the order of acquittal of the trial court and the other against the appellate court. The High Court allowed one of the appeals and convicted the accused under [SECTION], [SECTION] of the [ACT]. The other appeal was dismissed.
19. From the facts of the [ENTITY]'s case ([CASE NUMBER]) (SC) (supra), it would appear that the finding with regard to the charge of cheating the Government by dishonestly making false declaration in the gate-passes was closely interlinked with the charge of wilfully making false entries in the gate-passes. The trial court had held that the gate-passes were made inadvertently and negligently and the said finding was not disturbed by the High Court. The allegation of cheating was primarily dependent on the allegation of having made false entries in the gate-passes with intent to defraud the Government. The High Court was of the view that the acquittal of the accused of the charge under [SECTION] was not a bar to his conviction under [SECTION] of the [ACT] as the ingredients of the two offences were different. On an appeal by the accused, the Supreme court rejected the reasonings given by the High Court and allowed the appeal and made observation as quoted above.
20. Learned counsel for the State did not challenge the law laid down in [ENTITY]'s case (supra) and he could not have done so. In that case, it has been clearly observed that strictly speaking, the principle of issue estoppel was not attracted to the fact of that case. It has also been observed that the binding nature of a finding recorded earlier, at a subsequent stage of the same proceeding, would depend upon the allegations made in a particular case, the materials required to prove it, as also upon the nature of finding itself. So, in my view it cannot be applied in a mechanical manner in every case and the case of [ENTITY] ([CASE NUMBER]) (SC) (supra) is clearly distinguishable on facts.
21. The contention raised by learned counsel for the State was that the principle laid down in [ENTITY]'s case (Supra), was not applicable to the present case. According to him, the trial court was not competent to record a finding of acquittal regarding the charge under [SECTION] of the [ACT]. In absence of the requisite sanction for prosecution under [SECTION] of the [ACT], the only proper order would be to drop the proceeding. In support of this contention, reliance was placed on [ENTITY] v. State of Mysore AIR 1964 SC 269 : (1964 (1) Cri LJ 161).
22. Learned counsel for the State also urged that no sanction was required for prosecution of an accused under [SECTION] of the [ACT] and he tried to draw support from the judgment of a learned single Judge of this Court in [PRECEDENT]. Learned counsel for the appellant pointed out that in the impugned judgment itself, reference was made to [PRECEDENT], in which a contrary view had been expressed and it was held that for prosecution of an accused under [SECTION] of the [ACT], sanction was essential. It is not necessary to resolve the controversy raised by the aforesaid two decisions, as it has no direct bearing on the question posed for determination in this appeal.
23. In view of the contentions and counter contentions raised on behalf of the parties, the first question for determination is as to whether it was permissible for the trial court to record a finding of acquittal of the charge under [SECTION] of the [ACT] in absence of requisite sanction. Before deciding the said question, it would be relevant to look to the finding recorded by the trial court in the impugned judgment in relation to the said charge, which is as follows:
"20. Further the charge under [SECTION] of the [ACT] would also fail on technical ground even though there was sufficient evidence to establish that the accused was in possession of a country made pistol with intent to use the same for unlawful purpose and he did use the same for illegal and unlawful purposes of committing murder of [ENTITY] for the simple reason that no previous sanction for prosecution of the accused under [SECTION] of the [ACT] was procured. The settled principle of law is that previous sanction is an essential ingredient for prosecution of a person under [SECTION] of the [ACT] vide the case reported in [CASE NUMBER]. In the instant case no previous sanction for prosecution under [SECTION] of the [ACT] was procured and on this score alone. The accused was entitled to acquittal."
24. It is manifest that in the opinion of the trial court, there was sufficient evidence to establish that the accused was in possession of a country made pistol with intent to use the same for unlawful purpose and, in fact, he used it for committing the murder of [ENTITY]. The appellant was acquitted only on the technical ground that there was no requisite sanction for his prosecution under [SECTION] of the [ACT], although the prosecution had led convincing evidence in support of the said charge.
25. In the case of [ENTITY] [PRECEDENT] (Supra), relied upon by learned counsel for the State, an appeal by special leave was filed against the order of the High Court rejecting the reference made by the Sessions Judge for quashing the order of commitment passed by the Magistrate commiting the accused to the court of session on the allegation of having committed the offences under [SECTION] and [SECTION] of the [ACT]. The reference was made on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provision of [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as 'the old Code'). [SECTION] and [SECTION] of the old Code are substantially the same as [SECTION] and [SECTION] of the Code of Criminal Procedure of [SECTION]3 (hereinafter referred to as 'the new Code'). The provisions of the said Sections create a bar in taking cognizance of any offence alleged to have been committed by a certain class of public servants while acting of purporting to act in discharge of their official duty. One of the [CASE NUMBER] questions, which fell for consideration, was as to what should be the nature of order to be passed by a court if it came to the conclusion that the prosecution was invalid for want of the requisite sanction of the State Government. It has been held thus (at [CASE NUMBER] (1) Cri LJ 161 (SC :
"18. The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i.e., whether the court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquital as contemplated in the case of prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that facts proved bring the case within the mischief of [SECTION] of the Code then he is at liberty to reject the complaint holding that it is barred by that sanction. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact, no such order can be passed. If [SECTION] applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected."
26. It may be recalled that according to the appellant, it was not open to the State-respondent to challenge the finding of acquittal under [SECTION] of the [ACT] as no appeal was filed against the same. Therefore, the said finding was conclusive and on the principle of issue estoppel it was not liable to be disturbed at the appellate stage. The contention of learned counsel for the State was that the appellant could not invoke the principle of issue estoppel on a finding, which was not legal.
27. The maxim laid down in the case of [ENTITY] [PRECEDENT] (supra) aptly answers the questions posed for consideration in the present case.
28. According to the principle of issue estoppel, a new decision and a new investigation is not permissible in a subsequent proceeding between the same parties regarding an issue which was decided earlier by a competent. Court. There cannot be any dispute that a finding for attracting the principle of issue estoppel must be recorded by a Court of competent jurisdiction after a lawful trial. I f a Court records a finding on erroneous view of law, such a verdict cannot be made the foundation to establish a case of issue estoppel. If a proceeding is void in law then the decision given in such a proceeding is also void. Such a decision cannot operate as issue estoppel.
29. I would also like to refer to the case of [PRECEDENT] in which it has been held that where a court comes to the conclusion, though erroneously, that it was not competent to take cognizance of the offence, it has no power to acquit the accused of that offence. It has further been held that an order of acquittal made by the Court is in fact a nullity.
30. Now adverting to the present case, it may be mentioned at the cost of repetition that the appellant was acquitted of the charge under [SECTION] of the [ACT] not on merit but on a technical ground that there was no requisite sanction. As held in [ENTITY]'s case [PRECEDENT] (supra) in such a situation, the Court is not competent to pass an order of acquittal.
31. In view of the principle of law, as discussed above, I am of the opinion that the order of acquittal of the appellant in relation to the charge under [SECTION] of the [ACT], passed by the learned Additional Sessions Judge must be held to be void. The said finding of acquittal, therefore, does not create a legal bar on the principle of issue estoppel for the purpose of consideration of the finding of conviction of the appellant under [SECTION] of the [ACT].
32. The evidence of P.Ws. 2, 3, 4 and 6 have already been discussed elaborately. They supported the prosecution case as eye-witnesses to the occurrence. Their evidence is cogent, consistent and free from infirmities on all the material points. It has already been held that the ocular medical evidence as well as the objective findings of P. W. 10 the Police Investigating Officer.
33. In view of the foregoing discussion, I do not find any merit in this appeal and, accordingly, it is dismissed.