Criminal Appeal (SJ) No.113 OF 1994 (In the matter of an application under Section 374(2) of the Code of Criminal Procedure) 1. MANAGER YADAV, SON OF RAMANAND YADAV 2. MAHENDRA YADAV, SON OF RAMA NAND YADAV 3. BALESHWAR YADAV, SON OF MATERJIT YADAV 4. RAM BALAK YADAV, SON OF BALESHWAR YADAV 5. KANTI KUMAR JHA, SON OF BRAHAMDEO JHA 6. RABINDRA KUMAR JHYA @ RABINDRA KUMAR @ PATWARI, SON OF SHANTI KUMAR JHA 7. PRANAY KUMAR JHA, SON OF KANTI KUMAR JHA ALL RESIDENT OF VILLAGE DHIMOI, P.S. HARNAUT, DISTT. NALANDA ----- APPELLANTS Versus THE STATE OF BIHAR ----------RESPONDENT P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard both sides. The Appellant No. 1 has been convicted under Sections 307, 148 of the Indian Penal Code as also Section 27 of the Arms Act and sentenced to R.I. for ten years, two years and three years respectively whereas the Appellant Nos. 2 to 7 have been convicted under Section 307/149 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to seven years, two years and three years rigorous imprisonment respectively by the 5th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 384 of 1988/130 of 1990. The case of the prosecution is that in the night between 17/18.7.1985 while the Informant was sleeping in his house, the accused persons came there and the Appellant No. 1 is said to have fired which hit injured Arbind whereas the 2 Appellant Nos. 2 to 7 were variously firing at him. The prosecution case mainly rested on the evidence of PW-6, the Informant and PW-3 the injured as also the co- villagers PWs 1, 2 and 5 who supported the prosecution case as well as the evidence of PW-4, the Doctor. On going through the evidence on record, I find that undoubtedly there is an allegation of only one firing against Appellant No. 1 which was not repeated despite there being no intervening circumstance and, therefore, it is difficult to conclude that a case under Section 307 of the Indian Penal Code would be made out against him. Further, the allegation against the other persons that they were also generally firing would not make out a case under Sections 307/149 of the Indian Penal Code against them. In view of such, the Appeal on behalf of the Appellants No. 2 to 7 is allowed and they are discharged from the liability of their bail bonds whereas the conviction of the Appellant No. 1 is converted to Section 326 of the Indian Penal Code from one of Section 307 of the Indian Penal Code and he is sentenced to the period already undergone. Further, a sum of Rs. 2,000/- shall be paid to the Informant/his family within a period of eight weeks from the date of receipt of the notice in this regard from the Trial Court and in case he fails to do so, he shall be further sentenced to 6 months rigorous imprisonment. In the result, the appeal with regard to the Appellant 3 Nos. 2 to 7 stands allowed. The order of conviction and sentence passed against them in Sessions Trial No. 384/130 of 1989/1990 is hereby set aside. As for the appeal of Appellant No. 1, the same is dismissed. Patna High Court, Patna. Dated, the 28th March, 2011 NAFR/S.ALI ( Anjana Prakash, J.)