Criminal Appeal (SJ) No.306 of 1999 Against the judgment and order of conviction and sentence Dated 28. 08. 1999, passed by Shri Devendra Kumar Lal, 2nd Additional Sessions Judge, Nawadah, in Sessions Trial No. 290 of 1997/ 122 of 1999. Birju Chauhan, son of Lakhan Chauhan, resident of Village- Babhnaulli, P.S. Nardiganj, District- Nawadah. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for three years and further convicted for offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged by the informant Kailash Chauhan that on 19. 09. 1994 at about 7 A.M. he was digging foundation of putting wall of the house which was fallen down then Birju Chauhan armed 2 with gun and other accused persons all nine in number came and protested the digging of the foundation on which the informant retorted that he was digging foundation in his own land on which Jagdish Chauhan ordered then Birju Chauhan fired causing injury on his chick, forehead and near the ear. Blood started oozing out. It is further alleged that Jagdish Chauhan, Rajo Chauhan, Pyare Chauhan, Shree Chauhan, Gorey Chauhan and others assaulted by lathi, pana and brick bat and co-villagers Kauleshwar Chauhan and Karu Chauhan has seen the occurrence. 4. On the statement of Kailash Chauhan, F.I.R. was lodged. After investigation Charge sheet submitted. During trial eight witnesses were examined by the prosecution. P.W. 1, Kauleshwar Chauhan, P.W. 2, Karu Chauhan, P.W. 3, Lakhan Chauhan, P.W.4, Rohan Chauhan, P.W. 6 Vidya Devi have not supported the prosecution case and have stated that they did not know about the occurrence and have been declared hostile by the prosecution. However, P.W. 5, Kailash Chauhan, the informant has come to depose that while he was digging foundation for putting wall then accused persons quarrel with him and Birju Chauhan fired causing injury on his 3 head. He has proved his signature on F.I.R. which has been marked as Ext. 1 and has stated that he was treated at Hasua hospital and identified Birju Chauhan. However, in his cross examination he has stated that accused persons came one after another and he did not remember who was armed with which weapon and the matter has been compromised. 5. P.W. 6 is the doctor who examined Kailash Chauhan, the informant on 19. 09. 1994 and found the following injuries (i) two small pea shaped abrasions one inch apart of the left side of forehead, (ii) one spot of abrasion of small pea shaped on the left chick and other below the left ear, (iii) three spots of about the pea shaped size of the left side of head about left ear, (iv) abrasion on the left elbow. The age of the injury within 12 hours. Opinion reserved for x-ray. He has proved injury report marked as Ext. 2. Further he has deposed that on receipt of x-ray plate and report he found injury nos. i to iv are simple in nature and there is no any fracture of bone or skull. The injury no. i to iii are caused by fire arms as there is pellet like radio opaque substance in the x-ray and injury no. 4 was caused by hard blunt substance. Injury 4 no. 1 to 3 may be caused by gun shot and injury no. 4 may be caused by lathi. However, he has proved supplementary report in his pen and signature which has been marked as Ext. 2/1 and in his cross examination he has stated that radio opaque shadow may be caused by other than fire arms. He has further stated that whether injuries are superficial that he cannot say. 6. P.W. 8 is the I.O. He has proved formal F.I.R. which has been marked as Ext. 3 and has stated that he visited the place of occurrence of village- Barnwali and found digging of foundation. However, in his cross- examination he has stated he did not find any injury on the head near the ear of Kailash Chuahan. He has further stated that he did not find any blood sign at the place of occurrence and he did not find any pellet or bullet or empty cartridge at the place of occurrence. 7. The trial court taking into consideration the evidence convicted the appellant for offence under Section 307 I.P.C., but acquitted the other accused persons holding charge under Section 149 I.P.C. has not been proved, though, held that offence under Section 337 I.P.C. is made out, but compounded the same in view of compromise 5 petition filed by the parties. However, held that this offence under Section 307I.P.C. and 27 of Arms Act has not made out and hence cannot be compounded. 8. However, the prosecution case that several persons came and on verbal altercation the appellant filed causing injury to the informant. P.W.5, informant, who is only witness has come to support the prosecution case and he has stated in his evidence that while he was digging foundation accused persons came and quarrel with him. He has stated Birju Chauhan fired which caused injury on his head (near the ear). However, other witnesses of the prosecution have not supported the prosecution case at all and they have been declared hostile by the prosecution. However, out of eight witnesses, only Kailash Chauhan has come to support the prosecution case to the extent of firing by Birju Chauhan and no act of omission of commission has been alleged against other accused persons except the vague allegation that other accused persons came and quarrel with him. However, the doctor has found four injuries which are abrasion. However the opinion was reserved for x-ray. However, he has given his further opinion that out of four injuries, injury no. i to iii 6 are by fire arm and injury no. iv by hard blunt substance on the basis of x-ray plate and report. However, neither the said x-ray plate nor report on the basis of which further opinion has been given has been proved or brought on record. 9. It is pertinent to mention that under fourthly of Section 60 of the Evidence Act, the opinion of the doctor is required to prove by the person who gave opinion. However, neither the person who gave the opinion on the x-ray of victim has been proved in evidence nor opinion of x-ray report was proved hence basis on which the further opinion has been given has not brought in evidence and hence the further opinion of P.W. 6, doctor based on the basis of x-ray plate which has not been proved is not acceptable in evidence to draw an inference that injury was fire arm injury. Moreover the opinion of the Doctor, P.W. 6 opinion that injury no. i to iii are pellet like radio opaque shadow, but in cross-examination he has stated that radio opaque shadow may be caused by other than fire arm also and hence on the basis of this report, it cannot be said that injury received by the informant was fire arm injury. However, I.O. in this case who has been examined as 7 P.W.8 has deposed that he did not find any injury on Kailash Chauhan on his head (near ear) and he did not find any blood or any pellet or cartridge at the place of occurrence. 10. Hence having regard to the facts and circumstance, only evidence of P.W. 5, Kailash Chauhan about firing has neither corroborated by legal medical evidence nor has been corroborated by the doctor nor has been corroborated or supported by any of the prosecution witnesses and hence it is not safe to rely on the sole testimony of P.W. 5 without any corroboration particularly in view of his cross-examination that accused persons came one after another and he did not remember that who was armed with which weapon. 11. Hence under the facts and circumstance injury of fire arm having being not established by cogent, reliable and impeachable reasons having corroboration the evidence of P.W. 6 rather the evidence of I.O. is contrary to the evidence or injury and has not corroborated the case of fire arm. 12. Hence under the facts and circumstance, the appellant is entitled for benefit of doubt. I give benefit of 8 doubt to the appellant as the prosecution has not been able to prove the charges beyond all reasonable doubt. Hence order of conviction and sentenced recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 15th November, 2011. NAFR/m.p. ( Gopal Prasad, J.)