Criminal Appeal (SJ) No. 230 of 1994 ****** Against the judgment and order dated 15.07.1994 passed by Sri Rakesh Ranjan Verma, Ist Assistant Session Judge, Sitamarhi in Sessions Trial No. 173 of 1986 / 41 of 1987. ****** 1. Ram Vinesh Singh @ Vinesh Singh, Son of Late Kamal Singh, resident of village – Balaha, Police Station – Parsauni, District – Sitamarhi. 2. Abhay Kumar Jha, Son of Late Kari Jha. 3. Jai Chandra Singh, Son of Late Kailash Singh. Appellants 2 and 3 resident of village – Athari, Police Station – Runi Saidpur, District – Sitamarhi. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. V. R. P. Singh, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Sections 307/149 of the Indian Penal Code as well as under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and further convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged in the fardbeyan of the informant 2 Radha Devi is that Virendra Singh came at the house and she heard a sound and then saw Virendra Singh come fleeing away and was saying that Laxmi Singh has fired at him and then he fell down and thereafter it is alleged that Jaichandra Singh, Shivchandra Singh and son in law Kailash Singh started assaulting him by lathi. The accused Abhay Jha began to pull the leg of Virendra Singh and told to take him to another place. The informant Radha Devi caught Virendra Singh. 4. On the fardbeyan the FIR was lodged and after investigation charge-sheet submitted, cognizance was taken and the case was committed to the court of Sessions. After commitment the charge was framed and after considering the oral and documentary evidence the order of conviction and sentence recorded as stated above. During the trial 11 witnesses were examined. However, during trial P.Ws. 2, 3, 4, 5 and 8 have either been tendered or declared hostile. 5. P.W. 9 is the informant. She has stated that she heard sound of firing and saw Virendra Singh coming crying that Laxmi Singh fired at him and he fell down. She has further stated that Laxmi Singh, Jai Chand, Shivchand, Abhey Jha and Sala of Kailash Singh (Vinesh) came and assaulted Virendra Singh by Lathi Danda. Hence, she is not an eye witness to assault by firearm but is eye witness to assault on Virendra Singh by Lathi but the doctor though found injury by firearm but did not find any injury of Lathi Danda or hard blunt substance. P.W. 1 has 3 stated that he heard the sound of firing and went there and found Virendra lying injured and has not supported the prosecution case about assault by these appellants. 6. However, the doctor in his injury report though found lacerated wound ½” in diameter in the back of the chest by firearm but did not find injury of the assault by Lathi, Danda or slaps or by hard blunt substance. However, there is allegation of assault by Lathi and Danda in the FIR which on these appellants is not supported the prosecution case about the assault by Lathi and Danda and P.W. 7 has supported the prosecution case about firing by Laxmi about the assault by Lathi and Danda but the doctor though found injury of firearm on P.W. 7 but has not found injury on the person of Virendra Singh P.W. 7. 7. Hence, having regard to the facts and circumstances of the case the allegation of assault by firearm attributed on Laxmi Singh and doctor found the firearm injury but the allegation against the appellants assault by Lathi and Danda is not being substantiated by the medical evidence of doctor P.W. 10 and hence there is no corroboration of assault. Hence, the prosecution story becomes doubtful and appellants are entitled to benefit of doubt. 8. Learned counsel for the appellants, however, contended that Laxmi Singh has also been acquitted by the Bench of this Court. 9. Hence, having regard to the facts and circumstances I find and 4 hold that the appellants are entitled to benefit of doubt as prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 25th July, 2011. N.A.F.R./Kundan.