Criminal Appeal (SJ) No. 144 OF 1995 ******** Against the judgment and order of conviction dated 24.7.1995 passed in Sessions Trial No. 50/1993 by the learned 2nd Additional Sessions Judge, Arrah, Bhojpur. ****** BHUVNESHWAR TIWARY, S/O GANESH TIWARY, DECEASED R/O VILLAGE- GALCHAUR, P.S.- KRISHNGARDH (BARHARA) DISTRICT- BHOJPUR ……..….. Appellant Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. Rajendra Prasad Sr. Adv. : Pramod Kumar Adv. : Ritesh Kumar Adv. For the Informant : Mr. Suresh Pd. Baranwal, Adv. For the State : Indiwar Kumari, APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellant has been convicted under Section 307 I.P.C. and 27 Arms Act and sentenced to rigorous imprisonment for 7 years, 3 months and 2 years respectively by the judgment dated 24.7.1995 passed by learned 2nd Additional Sessions Judge, Arrah, Bhojpur in Sessions Trial No. 50/1993. 2. The case of the prosecution according to the informant’s Fardbayan is that on 4.7.1992 when he had gone to watch the Boring of Shankar Singh the informant had slept outside and he subsequently received pillet injury on his buttock and leg and he woke up and when Shankar Singh flashed a torch, he identified the appellant and other accused persons fleeing away. The appellant had reportedly fired. 3. During trial the prosecution examined 11 witnesses out of whom P.W. 3, 5 and 8 have been tendered, P.W. 7 is a formal seizure witness, P.W. 9 is also x-ray technician whereas P.W. 6 is the doctor who examined the injury on the person of P.W. 1, P.W. 11 is the Police Inspector who is formal whereas P.W. 10 is Shankar Singh was deposed as eye-witness, P.W. 2 and 4 are hear say witnesses. 4. On going through the evidence of P.W. 1 and 10, at best it can be said that the appellant was seeing fleeing with a pistol in his hand and there is no further material against him. Also in the facts of the case no offence under Section 307 I.P.C. is made out since there is no repetition of fire inspite of the fact that there was no intervening circumstance. 5. In the result, the conviction of the appellant under Section 307 I.P.C. is set aside. However, the conviction of the appellant under Section 447 I.P.C. and 27 Arms Act is maintained with sentence modified to the period already under gone by him during trial. 6. In the result the appeal is partly allowed. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 13th May, 2011 NAFR/ Fahad.