Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 19.03.2008 and 20.03.2008 passed by learned Additional Sessions Judge, 1st Fast Track Court, Jalpaiguri in Sessions Trial No. 35 of 2007 arising out of Sessions Case No.83 of 2007 convicting the appellant for commission of offences punishable under Sections 302/454 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.3000/- in default to suffer rigorous imprisonment for one year more for the offence punishable under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 454 of the Indian Penal Code; both the sentences to run concurrently.

2. The prosecution case, as alleged against the appellant, is to the effect that 4-5 thieves had entered the cowshed of Amizuddin Md. (PW3). When his family members raised alarm, they fled away through the garden and one of them, i.e. the appellant started running northwards. Various persons of the locality including the victim Abdul chased the appellant. They surrounded him on the kutcha road between a Masjid and a tank. The appellant started throwing arrows at them indiscriminately. As a result, Abdul suffered injury and was shifted to hospital where he expired. The appellant was apprehended by local people and handed over to police. Bow and arrow were seized in the course of investigation. On the written complaint of Khajiluddin Md., father of the deceased (PW1), FIR was registered against the appellant under Sections 459/302/34 of the Indian Penal Code. In conclusion of investigation, charge- sheet was filed and charges were framed against the appellant under Sections 454/302 of the Indian Penal Code. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 19.03.2008 and 20.03.2008 convicted and sentenced the appellant, as aforesaid.

3. Mr. Partha Sarathi Bhattacharyya, learned advocate appearing for the appellant argued that the place of occurrence has not been specifically established. Most of the prosecution witnesses including the de-facto complainant (PW1) did not specifically state the place of occurrence. Weapon of offence was not seized from the appellant who was apprehended at the spot. The incident occurred in the dark and there was no light to identify who had shot the arrow at the deceased. Torch lights were not seized in course of investigation. Without prejudice to the aforesaid submission, it was argued that the appellant had no intention to kill the victim and had indiscriminately shot arrows as he had been surrounded by a large group of persons and apprehended that he would be manhandled by them. Hence, conviction under Section 302 of the Indian Penal Code ought to be converted to one punishable under Section 304 of the Indian Penal Code. He relied on Laxman vs. State of M.P., 2006 11 SCC 316 [LQ/SC/2006/849] .

4. On the other hand, Mr. Arun Kumar Maity, learned Additional Public Prosecutor submitted that there is ample evidence on record particularly of eye witnesses viz., PWs.1, 3, 4, 5, 6 & 12 that the appellant and other miscreants had entered the cowshed of PW3 and upon being chased he threw arrows at them. One of the arrows hit the victim resulting in his death. Nature and circumstances of the offence and the extent of injury suffered by the deceased clearly show that the appellant had an intention to kill the victim. Hence, the appeal is liable to be dismissed.

5. Pws.1, 3, 4, 5, 6, 8 & 12 are the eye witnesses in the instant case.

6. Pw1, Khajiluddin Md. is the father of the deceased and the de-facto complainant in the instant case. He deposed that five persons had come to the house of Amizuddin Md. to steal cows. There was a hue and cry. He along with his son Abdul rushed to the spot. Appellant was fleeing away from the spot northwards. His son tried to catch him whereupon the appellant shot arrows at his son. His son was taken to Barabari Hospital and thereafter referred to Jalpaiguri Sadar Hospital where he died at night. He lodged written complaint which was scribed by PW15. Police seized bows and arrows. He proved his signature on the seizure list.

7. Pw2, Mafijul Haque, PW4, Md. Saibulla, PW5, Anarul Islam, PW6, Safikul Islam, PW8, Rafikul Haque and PW12, Hamida Rahaman are co-villagers who also chased the thieves and witnessed the incident. They had deposed that the appellant was running northwards and had been surrounded in a place between the Masjid and water body. At that time, appellant started throwing arrows at them resulting in injury on Abdul who subsequently died.

8. Pw3, Amizuddin Md. deposed that these thieves had entered his cowshed. His son raised hue and cry. Thereupon the miscreants ran away from the spot. One of them ran northwards. Abdul and Mafijul (PW2) ran towards the thieves who shot arrows towards Abdul. Abdul was injured and taken to hospital where he died. The said witness, however, could not specify the date of occurrence.

9. Pw7, Ziaul Haque Ziarul is the van driver who took the victim to hospital.

10. Pw11, Dr. Swapan Kumar Das is the post mortem doctor who examined the victim and found the following injury :-

"On examination I found sharp cut 1"x =" in the sixth space in left anterior auxiliary line at the level of nipple penetrating into left lung, pericardium and left ventricle."

He opined that death was due to shock and hemorrhage caused by the aforesaid injury which was ante mortem and homicidal in nature.

11. Pw13, K. M. Khan is the Investigating Officer in the instant case. He deposed that he came to the spot, prepared rough sketch map within index (Exhibits-10 & 11). He arrested the accused person. He seized bow and arrow produced by PW1 under a seizure list (Exhibit-2/2). He also seized one arrow produced by Mafikul (PW2) under a seizure list (Exhibit-3/2). He seized controlled earth as well as blood stained earth from the place of occurrence. He submitted charge sheet.

12. From the aforesaid evidence on record, it appears that five miscreants had entered the cowshed of PW3. His son raised hue and cry and they ran away. One of the miscreants i.e. the appellant ran northwards and was given hot chase by the villagers including PW1 and his son Abdul. The villagers surrounded the appellant on a kutcha road between the Masjid and a water body. The appellant started shooting arrows indiscriminately, one of which hit Abdul. He was shifted to hospital but died later in the night. Ocular evidence of prosecution witnesses particularly the PWs.1, 2, 3, 4, 5, 6, 8 & 12 unfailingly establish the aforesaid facts beyond doubt. Their versions receive corroboration from the autopsy surgeon (PW11) who found deep penetrating injury on the chest of the victim.

13. Although it is argued that the place of occurrence has not been established, I note most of the prosecution witnesses had described the place of occurrence as one between the Masjid and water-body. Investigating Officer (PW13) has noted the place of occurrence on the kutcha road between the Masjid and water-body in the sketch map (Exhibits-10 & 11). Blood stained earth was also recovered from the place of occurrence. Hence, I am of the opinion that the place of occurrence in the instant case has been fully established.

14. It has been argued that the incident occurred in darkness and the appellant could not have been identified. PWs.5 & 6 specifically stated that they were carrying torches when they came out of the house. Hence, the source of light has been established.

15. I find little substance in the argument advanced on behalf of the defence that such fact was not stated by the witnesses to the police or the torch lights had not been seized. Presence of torch light in the village home and the conduct of a villager to carry a torch light at night is most probable and does not militate against normal human conduct so that the version of the aforesaid witnesses are to be rejected on the ground that the torch lights had not been seized by the Investigating Officer. Failure of PW3 who stated the date of occurrence is also of little substance as he had specifically deposed that the appellant and others had trespassed into his cowshed and thereafter the incident occurred which has been fully established by the evidence of other witnesses.

16. Finally, coming to the argument advanced on behalf of the appellant that the offence be scaled down from one under Section 302 to Section 304 Part-I of the Indian Penal Code, I note that the appellant had indiscriminately shot arrows at the villagers when they surrounded him between the Masjid and water-body while he was trying to escape. The appellant, therefore, had not shot the arrow aiming at the deceased with the intention to kill him. On the contrary, the factual matrix of the case gives an impression that the appellant who had entered the cowshed of PW3 to steal cows with others had been surrounded by villagers while he was trying to escape and apprehending that he would be manhandled indiscriminately shot arrows at the villagers resulting in injuries on Abdul and his unfortunate death. Although there is no doubt that the appellant intended to cause bodily injury likely to cause death, in the facts and circumstances of the case it does not appear that he intended to kill the deceased and in all probability had resorted to shooting arrows indiscriminately in order to avoid being manhandled by villagers. Hence, I am of the opinion that his conviction deserves to be altered from one under Section 302 of the Indian Penal Code to Section 304 Part-I of the Indian Penal Code.

17. In this regard I am fortified by the ratio of the Honble Apex Court in Laxman vs. State of M.P., 2006 11 SCC 316 [LQ/SC/2006/849] wherein the court had altered the conviction of the accused from Section 302 of the Indian Penal Code to Section 304 Part-I of the Indian Penal Code when he had indiscriminately shot arrows from a distance resulting in death of one of the persons.

18. In the light of the aforesaid discussion, I alter the conviction of the appellant from one under Section 302 IPC to Section 304 Part-I of the Indian Penal Code.

19. I find that the appellant has already undergone imprisonment for about 13 years. Accordingly, I modify the sentence imposed on the appellant to the period already undergone and I further direct that he shall pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months more.

20. The appeal is accordingly dismissed.

21. Period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

22. Upon payment of fine, as aforesaid, the appellant shall be forthwith released from custody, if not wanted in any other case.

23. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.

24. Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities.

I agree.