Criminal Appeal No.202 OF 1995 (S.J.) [Appeal against the judgment and order dated 21.9.1995 passed by the 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No.231 of 1990] 1. RAM BALAK RAUT, SON OF LATE BINDA RAUT 2. JAGDEO RAUT, SON OF RAM PRASAD RAUT, BOTH RESIDENT OF VILLAGE CHNDA, POLICE STATION MARHOWRAH, DISTRICT SARAN ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Arun, Advocate For the Respondent : Mr. Binod Bihari Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.1 has been convicted u/s.307/34 I.P.C. and sentenced to R.I. for seven years and appellant no.2 has been convicted u/s.307/34 I.P.C. and sentenced to R.I. for ten years by the 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No.231 of 1990 by a judgment dated 21.9.1995. The case of the prosecution is that on 5.8.1988 when the informant (P.W.7) had gone out to wash his mouth, the appellant no.1 ordered to assault, on account of which the appellant no.2 fired at him, due to which he was injured. During trial the prosecution has examined ten witnesses on its behalf. Out of whom, P.W.10 is formal in nature and had brought the X-ray plate, which had been marked Exhibit X for identification, whereas P.W.2, P.W.3, P.W.6 and P.W.8 are - 2 - hearsay witnesses. P.W.1 is the uncle of the informant and alleged eye witness. P.W.6 is on the factum of the occurrence and that he had seen the appellants when he had arrived at the place of occurrence after the same. P.W.5 is the brother of the informant and on the point of occurrence. P.W.7 is the informant himself. P.W.9 is the doctor, who had found multiple pellet injury on the left side of the chest and face and right side of sternum allegedly caused by fire arms, but the nature of injury was not given by him and the informant had been sent for further X-ray, but the doctor, who had conducted the X-ray, was not examined and merely the X-ray plate was produced before the court by the P.W.10. The Investigating Officer has been examined as court witness no.1. The defence also examined one witness on the point that in fact the place of occurrence is some other and probably the occurrence had taken place on account of his illegal activities. On going through the evidence, one finds that admittedly the appellant and the informant were well known to each other and, therefore, there is no question of doubtful identity even if the dark night. Moreover the evidence of the eye witnesses and the hearsay witnesses is cogent and trustworthy, but considering the evidence of the doctor that no definite opinion has been given about the nature of the injuries it is difficult to sustain the conviction of the appellant u/s.307 and 307/149 I.P.C. in the absence of the Doctor, who conducted the X ray and gave final opinion. - 3 - In the result, the appeal is dismissed with modification that the conviction of the appellants is converted from 307 and 307/149 I.P.C. to one u/s.324 I.P.C. and the sentence to one that has already been undergone by them during trial. Patna High Court Dated, 28th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )