Criminal Appeal (SJ) No.285 of 1997 **** Against the judgment and order, dated 30.09.1997, passed by Sri V.N. Jha, Additional Sessions Judge, II, Bhagalpur, in Sessions Case No. 578 of 1990 **** Sk. Hafiz, son of Hasim Mian, resident of Govindpur, P.S. Pirpainty, district Bhagalpur .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Krishna Mohan & Praveen Kumar, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged by the informant, Raj Kumari, that while she was taking meal in the courtyard of her house then the co-villagers, Sheikh Hafiz, came and fired from his 3x3 fire arm causing injury on her temple and other part of the body. On the fardbeyan, first information report lodged and after investigation charge sheet submitted, cognizance taken and the case was committed 2 to the Court of sessions. 4. After commitment, the charge was framed under Sections 307 of the Penal Code and 27 of the Arms Act. 5. However, eleven witnesses were examined during the trial out of thirteen witnesses mentioned in the charge sheet, but, the doctor and the investigating officer have not been examined and after considering the oral and documentary evidence the appellant was acquitted for offence under Section 27 of the Arms Act, but, convicted under Section 307 of the Penal Code and sentenced, as stated above. 6. The learned counsel for the appellant, however, contended that the injury report has not been proved and neither the doctor nor the investigating officer has been examined and though there is allegation of assault by fire arm, but, the lower Court has acquitted the charge under Section 27 of the Arms Act and convicted under Section 307 of the Penal Code without the injury report having been proved and the lower Court has observed that since there is allegation of firing causing injury and, hence, there is enough ingredient under Section 307 o the Penal Code. 7. However, taking into consideration the prosecution case and the occurrence there is allegation of assault by fire arm causing injury on the head. 8. The witnesses though have supported the prosecution case that the appellant came and fired causing injury, however, the doctor has not been examined in the case nor the injury has been proved and, hence, evidence of the witnesses are not corroborated by 3 the medical evidence and the investigating officer has not been examined to establish the objective evidence at the place of occurrence. However, having regard to the fact that there is allegation about the assault by fire arm and the injury also has been alleged to have been caused and the witnesses stated that by fire arm there was injury and blood oozed out and, further, the attention of the witnesses have been drawn with regard to the statement and, hence, non-examination of the doctor and investigating officer has caused prejudice to the accused both about taking contradiction and bringing the objective evidence of the place of occurrence and, hence, having regard to the facts and circumstances the order of conviction and sentence under Section 307 of the Penal Code without the examination of investigating officer and doctor is not sustainable, hence, order of conviction and sentence recorded by the trial Court is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 18th day of July 2011, N.A.F.R., S.A.