Crl.A. 213/2009 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. IH Laskar, learned counsel appearing for the appellant. The State is represented by the learned Addl. Public Prosecutor Mr. BB Gogoi. 2. Following the death of the accused appellant during the pendency of the Appeal, on permission being granted under the provisions of Section 394 of the Cr.P.C. this appeal is being pursued by the wife of the deceased appellan t. 3. Appeal is filed to challenge the judgment and order dated 26.11. 2009 in Sessions Case No. 46(M)/2006 rendered by the learned Addl. Sessions Judg e (FTC) No.I, Tinsukia, whereby the accused was convicted under Section 307 I.P. C. and sentenced to undergo R.I. for 4 years and a fine of Rs.2,000/-, in defaul t of payment of fine, to suffer further additional imprisonment for 2 months. 4. The criminal process was set in motion with filing of a FIR on 2 5.8.2002 with the Pengeree police station by Sushil Ranjan Nath, a constanble of the 1st Assam Police Battalion (hereinafter referred to as the 1st A.P. Bn.) wi th the information that at about 11:20 a.m. while constable Ajit Borman was taki ng lunch inside the barrack, Havildar Girish Konwar fired 9 rounds at him causin g grievous injuries on Ajit Borman. Thereafter the injured was removed to Penger ee hospital for treatment. After registering a case against the accused under Se ction 326/307 of the IPC, investigation was carried out and charges under Sectio n 326,307 was filed against the accused. . 5. As the accused pleaded not guilty, the trial commenced during wh ich 13 witnesses were presented from the prosecution side whereas none was produ ced in support of the defence. The accused was thereafter examined under Section 313 of the Cr.P.C. where the accused stated that Ajit Borman received bullet in juries through accidental firing of his carbine and there was no intention by th e accused to fire at his colleague constable. 6.1 The appellant before this Court submits that it is a case of acc idental firing during the uncharging of the carbine at lunch break in the 1st A. P Bn. and there was no intention at all to cause any injury or to take the life of injured constable. In support of his contention, Mr. IH Laskar refers to the evidence of the injured constable Ajit Borman (P.W.7) from where it is pointed o ut that the victim and the accused were in a good terms for last several years. It is also pointed out that the injured constable did not say that the accused d eliberately fired at him. 6.2 The evidence of the PW.2, PW.3, PW.4 & PW.6 are also referred to by Mr. Laskar the learned counsel to show that although these witnesses were st ated by the injured constable to have been present at the time of the incident, each of these witnesses indicated their ignorance about how the firing took plac e. 6.3 The evidence of PW.12, the Investigating Officer of the case is also relied upon by the learned counsel for the appellant to show that the said witness who immediately reached the place of occurrence was informed that during the lunch recess, while his carbine was being uncharged by the accused, the bul lets accidentally triggered from the carbine hit the injured constable. From the cross-examination of PW.12, it is pointed out that the victim constable did not indicate the incident to be a case of deliberate firing. 7. On scrutiny of the evidence on record and particularly the evide nce of the injured constable PW.7, it is apparent that none had indicated that t he accused had any intention to shoot at his colleague constable. In the absence of the requisite mensrea, no crime can be said to have been committed by the ac cused and the defence plea of an accidental firing appears to be a more probable cause for the bullets emerging from the accused’s carbine, while it was being u ncharged at the time of the launch break. 8. Section 80 of the Penal Code provides that nothing is an offence which is done by an accident without any criminal intention in carrying out a l awful act with proper care and caution. In this case there is nothing on record to show that the accused had not exercised proper care and caution, while unchar ging his carbine. Uncharging of carbine is also required to be done after duty i s over and constables are gathered to have their launch. In such circumstances, I am of the considered opinion, in the absence of any motive or intention being attributed to the accused, it is a case of accidental firing i.e. one which is c overed under Section 80. Therefore no conviction for any crime can be sustained against the accused. 9. In view of the above finding, this Appeal stands allowed. The im pugned judgment dated 26.11.2009 and the conviction of the deceased accused is s et aside and quashed. The bail bond shall stand discharged. 10. The LCRs be returned forthwith.