Criminal Appeal (SJ) No. 95 OF 1997 Against the judgment and order dated 21.03.1997 passed by Sri Sita Ram Pandey, 7th Additional Sessions Judge, Nalanda at Biharsharif in S.Tr. No. 112/86/20/93. ************ 1. Binay Kumar Singh. 2. Binod Kumar Singh. Both sons of Late Nagina Singh, resident of Village- Kolawan, Police Station-Harnaut, District-Nalanda. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 142 of 1997 Bipin Kumar Sinha, S/o Late Nagina Singh, Resident of Village-Kolawan, Police Station-Harnaut, District- Nalanda. -------(Appellant) Versus The State of Bihar. ------(Respondent) ************* For the Appellants : Mr. R.P. Sharma, Adv. : Mrs. Madhuri Kumari, Adv. For the State : Mr. J.K. Singh, APP. : Dr. Indiwar Kumari ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant Bipin Kumar Sinha has been convicted under Section 307 IPC whereas appellant Binay Kumar Singh has been convicted under Section 307/34 IPC and appellant Binod Kumar Singh has been convicted under Section 307/114 IPC and sentenced to RI for seven years by the 7th Additional Sessions Judge, Nalanda at Biharsharif in S.Tr. No. 112/86/20/93 by a judgment dated 21.03.1997. 2. The case of the prosecution according to the informant, Ramjee Prasad is that on 05.03.1985 when he was returning to his house along with his parents suddenly the three accused persons accosted him and thereafter appellant Bipin Kumar Sinha on the orders of appellant Binod 2 Kumar fired at him on account of which he fell down and he was then removed to the hospital where he was examined by P.W. 8, Doctor A. K. Sharma. 3. During trial the prosecution in all examined nine witnesses out of whom P.W. 1, Rajendra Singh is the father of the informant whereas P.W. 5, Manju Devi is the wife of the informant. P.W. 8 is the Doctor who examined the injured whereas P.W. 7, Sri D.K. Mishra is the Investigating Officer. P.W. 2, Ramjee Prasad, P.W. 3, Ram Sohawan Singh, P.W. 4, Ram Baran Singh and P.W. 6 Girish Kumar are formal witnesses along with P.W. 9 the Executive Magistrate who was posted in the village since it was an election day. 4. On going through the evidence of three witnesses, I find that all three of them have stated that while they were walking almost together when they reached near the fields appellant Bipin Kumar Sinha who was armed with country-made pistol and the others also armed with firearms surrounded the informant and when the informant ran away towards the Mushar Tola on the orders of Binod Kumar appellant Bipin Kumar fired at him hitting on back of the informant then they fled away. 5. Doctor, P.W. 8 who examined P.W. 2 stated that he found small laceration over the upper surface of liver with a pillet in it and also in lower surface of gall bladder and the large intestine. The Doctor stated that the injury was grievous as also that it has been caused from the back. Since P.W. 1, P.W. 2 and P.W. 5 have constantly stated as to how the occurrence took place and the same is corroborated by 3 P.W. 8 evidently the prosecution has succeeded in proving manner of occurrence. 6. From the evidence of father of P.W. 1 and P.W. 2, I find that they have stated that the informant was an accused in the case of murder of the father of appellants in which the appellants were also witnesses. Since motive is a double edged weapon it can not rule out the possibility of the informant being fired at by the appellant Bipin Kumar Sinha on account of the earlier incident. 7. However, even though the prosecution has succeeded in proving the manner of occurrence as well as the participation of the appellants in the same, in my view, since the prosecution did not allege that there was any intervening circumstance or repetition of fire no offence under Section 307 IPC would be made out. They are therefore acquitted of the charge of Section 307 IPC. Instead Appellant Bipin Kumar Sinha is convicted under Section 325 whereas the rest of the appellants are under Section 325/34 and they are sentenced to the period already undergone by them during trial. 8. With the aforesaid modifications in conviction and sentence, the appeals are dismissed. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 15th July, 2011. NAFR/Vikash/-