IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 33 of 1999 ~~~~~~ Against the judgment of conviction dated 05.02.1999 and order of sentence dated 06.02.1999 passed by Shri Braj Nandan Sahay, learned Additional District & Sessions Judge, Chapra in Session Trial No. 145 of 1990. ~~~~~~ 1. Ram Prit Rai, Son of Hari Charan Rai. 2. Godhan Rai, Son of Bansh Ropan Rai. All of resident of village – Bingawan, P. S. – Doriganj, District – Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned amicus curiae and learned counsel for the respondent. 2. The appellant no. 1, namely, Ram Prit Rai has been convicted for the offence under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and appellant no. 2, namely, Godhan Rai has been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged in the farbeyan by the informant Surendra Rai is that while he was cutting the earth from a ditch of the village then Godhan Rai protested, on which the informant retorted that it is a government ditch on which one Lal Babu Rai fired but it did not hit the informant. Thereafter Godhan Rai fired from the gun by which he got injury in his left leg down the knee. 4. On the fardbeyan, First Information Report was lodged and after investigation charge-sheet was submitted. However, the charge was framed under 2 Section 307 of the Indian Penal Code against Godhan Rai and the charge under Section 307/34 of the Indian Penal Code was framed against Ram Prit Rai and others. However, during the trial eight witnesses were examined. Three witnesses examined on behalf of the defence. 5. However, P. Ws. 2 and 3 have been tendered, P. W. 6 is the informant and P. Ws. 1, 4 and 5 have supported the prosecution. P. W. 7 is the doctor. However, the informant in his evidence has though supported the prosecution case in the first information report but at the stage of trial developed the prosecution story to the extent that Ram Prit Rai brought gun from his house was fired by Godhan Rai and this fact is missing in the fardbeyan and is developed at the stage of trial. However, he has stated that Ram Prit Rai and Godhan Rai are old. Godhan Rai is about 60 years old and Ram Prit Rai is about 65 years old as per his evidence dated 25.08.1995. His attention has been drawn and has stated that it is not a fact that he has not stated before the police that Ram Prit Rai brought the gun from his house and gave it to Godhan Rai and hence the attention of this witness has been drawn to that part which found missing in the fardbeyan P. Ws. 1 and 3 though have also developed the case that Ram Prit Rai brought his licensee gun and gave to Godhan Rai. Whereas P. Ws. 4 and 5 have stated that Godhan Rai took gun from Ram Preet Rai. However, the I.O. has not been examined in this case and that part of the evidence regarding the implication of Ram Pirt Rai to the effect that the contradiction could not be recorded by the I.O. and hence it has caused prejudice to the prosecution with regard to implication of Ram Prit Rai. 6. However, the doctor has stated that the injuries were multiple lacerated wound on left leg caused by firearm. However, these injuries are charred and have stated that the X-ray plate is not before him and these injuries are simple in nature. Hence, having regard to the fact that the injuries are below knee and they are 3 simple in nature, it cannot be said that the injuries were inflicted with intention to kill and the offence under Section 307 of the Indian Penal Code is not made out. 7. However, having regard to the fact that there is evidence that Godhan Rai fired causing injury on the left leg which is simple in nature and hence at best an offence under Section 324 of the Indian Penal Code is only made out. 8. Hence taking into consideration the entire facts and circumstances of the case, since the evidence against Ram Prit Rai suffers from contradiction and development of the prosecution story in the fardbeyan and though the attention has been drawn of the informant that he has not stated so before the police. The I.O. has not been examined hence it has caused prejudice to the defence and hence conviction of Ram Prit Rai is not sustainable and the order of conviction and sentence recorded against Ram Prit Rai is hereby set aside. 9. So far the conviction of Godhan Rai is concerned there is only allegation that he fired which caused injuries below knee to the informant which are simple in nature and hence the conviction under Section 307 of the Indian Penal Code is not sustainable and is hereby set aside and is substituted by the offence under Section 324 of the Indian Penal Code. 10. However, having regard to the fact that the appellant Godhan Rai has remained in jail for about seven months and he is aged about 60 years at the time of judgment and hence the ends of justice shall meet by sentencing the appellant for the period already undergone by him and hence the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 23rd December, 2011. N.A.F.R./Kundan.