Crl.A. 3/2003 BEFORE THE HON’BLE MR. JUSTICE P.K. MUSAHARY Heard Mr. M.H. Choudhury, learned counsel appearing for the appellants. Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam. 2. This appeal has been preferred against the judgment and order dated 9.12 .2002 passed by the learned Sessions Judge, Darrang, Mongaldoi in Sessions Case No. 112 (DM) 2001 convicting the appellants u/s. 447 IPC to suffer RI for 3 mont hs and also to suffer RI for 6 months each u/s. 506/34 IPC and further to suffer RI for 4 years each and a fine of Rs. 5,000/- each in default further RI for 3 months each u/s. 307/34 IPC. 3. Briefly stated the prosecution case is that in the month of December fam ily members of Samser Ali of village No. 2 Kopati gram under P.S. Dalgaon in the District of Darrang, Assam were sleeping in their house. At about 8 p.m. the in formant heard hulla of accused Mannaf and Nur Mohammad at his courtyard. They we re challenging and asking the inmates of the house to come out. While Samser Ali with his wife came out the accused persons threatened them and fired at Samser Ali from a pistol but somehow he managed to save himself. They made hullah and t hen the accused persons went away. Samser Ali lodged the FIR and a crime was reg istered as Dalgaon P.S. Case No. 267/2000. On completion of the investigation th e police submitted charge-sheet against the accused appellants. The case was com mitted to Court of Sessions Judge as the offence is exclusively trialble by the Court of Sessions. Charges u/s. 447/506/307 and 34 IPC were framed against the accused appellants. On being explained they pleaded not guilty and claimed trial . The prosecution examined as many as 7 witnesses including the I.O. 4. Mr. Choudhury, learned counsel for the appellants submits that all the w itnesses, except PW-7 (I.O.) are related and highly interested and no conviction can be ordered on the basis of their evidence. PW-1,3 and 5 claimed to be the e ye witnesses as they could see and identify the accused appellants at the time of committing the offence. PW-1 is the informant, PW-3 is the wife of the inform ant and PW-5 is the son of the informant. Although they have substantially corro borated the evidence of each other their evidence, insofar as it relates to the opening of fire and hitting of the bullet at the wall, stands belied inasmuch as no bullet hole was found by the I.O. while he visited the place of occurrence. Nor was any used cartridge or bullet found at the place of occurrence. The I.O . could not collect any incriminating article at the place of occurrence and the refore he could not seize anything. In fact, there is no seizure list. Although it was claimed that the accused appellants were identified by the light of the l amp, no such lamp was seized by the I.O. while he visited the place of occurrenc e. There is nothing on record that the informant or any of the family members wh o were present at the time of occurrence, produced any lamp they carried or used , through the light of which they could see and identify the accused appellants. 5. It is to be noted that the incident took place at around 8 p.m. and it w as not in the late hours of the night while the villagers were in deep sleep. It is in the evidence of the eye witnesses aforesaid that some villagers came to t heir house after hearing the hullah. The I.O. examined some villagers and record ed their statements u/s. 161 Cr.P.C. Therefore, he atleast cited 3 villagers as witnesses while submitting the charge-sheet. Those 3 villagers who are considere d to be important independent witnesses were not examined by the prosecution. Th ere is not explanation why the prosecution preferred not to examine them. Had th ose 3 witnesses/ villagers were examined, the prosecution could have proved the case beyond all reasonable doubt. Withholding of independent material witnesses casts serious reflection on the propriety of the trial itself and the validity o f conviction resulting from it may be open to challenge. This has been held so i n Habeeb Md. Vs. State of Hyderabad, reported in AIR 1954 SC.51. It is similarly held so in Hem Raj Vs. State of Haryana, reported in (2005) 10 SCC 614. 6. There is slight reference /description of the pistol but there is no men tion where and how the said pistol was found or taken over by the informant’s pa rty from the accused appellants. Moreover, it is to be noted that no bodily inju ry was caused to any of the persons present at the time of occurrence. 7. On appreciation of the evidence on record I do not find any material to believe the story of carrying pistol by the accused appellants and opening fire from the same while they visited the house of the informant. But it can not be dis-believed that the accused appellants did not visit the informant’s place and that they could not be identified by the informant’s party. Even assuming that the PW-1,3 and 5 did not carry any lamp, there is no difficulty in believing th at the accused appellants could be identified as they are co-villagers and their voices are familiar to the informant and his family members. Therefore, it can be easily said that the prosecution has been able to prove the fact that the acc used appellants came to the house of the informant and tried to do some mischief but they have to return or leave the place as the informant and his party made hullah and some villagers have gathered. The evidence on record has proved the c harge against appellants u/s. 447 and 506 IPC and I am not inclined to alter the conviction as recorded by the learned Trial Court. As regards sentence, conside ring the fact that the prosecution could not prove the use of pistol or giving c riminal intimidation by showing or opening fire from the said pistol , vis-à- vis no injury was found on the body of any person, it would meet the ends of ju stice if the imprisonment of 3 months and 6 months u/s. 447 and 506 are reduced to that of fine which is quantified at Rs. 8,000/- (Eight Thousand) to be shared equally by the appellants. It is ordered accordingly. 8. The appellants shall deposit the aforesaid amount with the learned CJM, Darrang, Mangaldoi within a period of 3 (three) months from today and the amount so deposited by the appellant shall be paid to the informant on proper identifi cation. 9. Appeal stands partly allowed with the above modification in the sentence . Return the LCR forthwith. The Criminal appeal stands disposed of.