L.MOHAPATRA, J & B.K.PATEL, J. JCRA. NO.99 OF 2001 (Decided on. 15.11.2011) KANDA @ AJEN MURMU ……..Appellant. .Vrs. STATE OF ORISSA …….Respondent. PENAL CODE, 1860 (ACT NO.45 of 1860) – S.304, PART-II. For Appellan- M/s. P.R.Dash, B.P.Routray, K.Rai, S.Mohapatra. For Respondent - Addl. Government Advocate. L.MOHAPATRA, J. This appeal is directed against the judgment and order dated 11.10.2001 passed by the learned Sessions Judge, Mayurbhanj,Baripada in Sessions Trial Case No.111 of 2000 convicting the appellant under section 302 of the I.P.C. and sentencing him to undergo imprisonment for life 2. Deceased is the uncle of the appellant. Deceased had two wives, P.W.1 and P.W.6 who is the informant. On 13.5.1099 at about 8.30 P.M. when the deceased was standing in front of his house, the appellant standing on the verandah of his house declared that he would kill the deceased. When the deceased challenged the appellant, appellant shot an arrow standing on the verandah of his house at the deceased. Having been struck by an arrow deceased started shouting in pain and walked a little distance when the appellant shot second arrow which struck the deceased on his chest. Thereafter deceased fell down. One arrow could be removed but the other arrow was broken from the middle. Sometime thereafter the deceased died because of injuries sustained by him. P.W.6 lodged F.I.R. and investigation was taken up. Charge-sheet was filed under section 302 of the I.P.C. and appellant faced trial for commission of the said offence. 3. In course of hearing, prosecution examined seven witnesses to prove the charge but none was examined on behalf of the appellant. Appellant took a plea of alibi and stated that he was not present in his house at the time of occurrence. Out of seven witnesses examined on behalf of the prosecution, P.Ws. 1 and 6 are the two wives of the deceased and are eyewitnesses to the occurrence. P.W.2 is the brother of the deceased but is a post-occurrence witness. P.W.3 conducted post- mortem examination and P.W.4 is the police officer who received the F.I.R. at the Police Station and registered the case. P.W.5 is the Investigating Officer and P.W.7 is the doctor who examined the appellant. Trial court relying on the evidence of two eyewitnesses coupled with the evidence of P.W.3 found the appellant guilty of the charge and convicted him thereunder. 4. Shri Dash, learned counsel for the appellant assailed the impugned judgment on the ground that the occurrence took place in a dark night when nothing was visible. It was further contended by the learned counsel for the appellant that when the eyewitnesses admitted that it was a dark night and nothing was visible, it would be unsafe to rely on the evidence of such witnesses who claimed to have seen the appellant shooting two arrows. Learned counsel further alternately submitted that since it was a dark night and the appellant shot two arrows, one of which unfortunately struck on vital part of the body of the deceased and caused death, no intention to commit murder can be inferred. Therefore, even if the evidence of P.Ws. 1 and 6 is accepted, appellant could only be convicted for commission of offence under section 304 Part-II of the I.P.C. Learned counsel for the State relying on the evidence of P.Ws. 1 and 6 submitted that it is the appellant who declared to kill the deceased and when the deceased protested he shot two arrows aiming at the deceased. Injuries sustained by the deceased caused his death and therefore the offence squarely comes within section 302 of the I.P.C. 5. On careful scrutiny of the evidence of the witnesses examined on behalf of the prosecution, we find that both P.W.1 and P.W.6, the two eyewitnesses to the occurrence, are consistent in their statements that on the date of occurrence at about 7 P.M. when the deceased was washing his hands and legs in his house, appellant standing on the verandah of his house shouted to kill the deceased. The deceased thereafter came out from the house and asked the appellant as to why he wanted to kill him as he has not committed any fault. Immediately, thereafter the appellant shot an arrow which struck the deceased. Deceased thereafter started shouting out of pain and appellant shot the second arrow which pierced the chest of the deceased. First arrow had also pierced into the chest of the deceased. Deceased thereafter fell down near the Tati gate of their house. One arrow was removed from the body of the deceased but the other arrow could not be removed. Deceased after sometime succumbed to the injuries. So far as this part of the case of the prosecution is concerned, nothing has been brought out in cross-examination to discard statements of both the witnesses. However, in cross-examination both the witnesses have stated that it was a dark night and P.W.6 has specifically stated that nothing was visible. If this part of the statement of both the witnesses is taken into consideration with reference to the sketch map, it is found that the distance between verandah of the appellant and the place where the deceased was standing is such that in complete darkness one cannot shoot an arrow aiming at a particular place. Therefore, we find substance in contentions of learned counsel for the appellant that both the shots were random shots which struck the deceased on his chest. Reference in this regard may be made in the case of Narasingh Challan –vs- State, reported in 1997(2) Crimes 78. In the said reported case, accused had also shot two arrows which struck the deceased and caused his death. In the said case, arrows were shot from a fairly long distance. With the above background, the court held that it cannot be said that, that part of the injury which proved fatal was intended and therefore offence under section 302 of the I.P.C. is not made out. Appellant in the said case was convicted and sentenced for offence under section 304, Part-II of the I.P.C. We find facts of the reported case are more or less similar to that of the present one. The appellant having shot two arrows from a distance in complete darkness, it cannot be said that he intended to cause injury on any vital part of the body of the deceased though he 2 had knowledge that the injuries that may be caused by arrow may result in death. We are, therefore, of the view that the appellant is liable for conviction under section 304 Part-II of the I.P.C. 7. We, accordingly, allow the appeal in part, set aside the impugned judgment convicting the appellant for commission of offence under section 302 of the I.P.C. and convict the appellant for commission of offence under section 304 Part-II of the I.P.C. and sentence him to undergo imprisonment for seven years. It is stated that the appellant is in custody for more than 11 years. If that be so, the appellant Kanda @ Ajen Murmu be set at forthwith if his detention is not required in any other case. Appeal allowed in part. 3