Criminal Appeal (SJ) No.213 of 1998 **** Against the judgment and order, dated 25th May, 1998, passed by Shri Subhash Kumar Singh, Additional District and Sessions Judge, X, Rohtas at Sasaram, in S. Tr. No. 211 of 1986 **** 1. Birendra Tiwari , S/O Jagdish Tiwari 2. Sheo Prasad Tiwary, S/O late Indradeo Tiwari 3. Chandradeo Tiwari, S/O late Sheo Jatan Tiwari, all residents of village Awraia, P.S. Sheosagar, district Rohtaqs .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Mr. B.P. Pandey, Sr. Adv. with M/S Shashi Bala Verma and Jagnath Singh, Adv. For the Respondent .. Mr. Parmeshwar Mehta APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellants have been convicted under Sections 452 and 307/34 of the Penal Code to undergo rigorous imprisonment thirty seven months and appellants 1 and 3, Birendra Tiwari and Chandradeo Tiwari, further, convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for 12 months and all the sentences were ordered to be run concurrently. 2. The prosecution case recorded on 14-15 April, 1985, at 2 02.55 a.m. by the informant, Bishwanath Ram, Switch Man at Khurmabad Railway Halt, and was on duty from 01.00 to 09.00 a.m. while he was working and the door was open, besides him Bhanu Pratap Pandey was sleeping on the floor and Ramayan Ram was sleeping on the cot. In the meantime, he saw three persons entering into the room and commanded to kill on which the informant fled away in the inner room and Bhanu Pratap Pandey was also making cry then the three assailants fled outside and fired from the window, by which Bhanu Pratap Pandey and Ramayan Ram got injured and, therafter, Bhanu Pratap Pandey and Ramayan Ram were sent to Sasaram. However, on the fardbeyan, first information report lodged and after investigation charge sheet submitted, cognizance taken and the case was committed to the Court of sessions. 3. During the trial seven witnesses have been examined. P.W. 1 is Banshidhar Pandey, P.W. 2 is Vachuspati Pandey, P.W. 3 is Daul Panwan, P.W. 4 is Rand Bahadur Chaudhary, P.W. 5 is Dr. Devendra Nath Sinha, P.W. 6 is Bhanu Pratap Pandey and P.W. 7 is Ramashray Tiwary. 4. The doctor found injuries on Ramayan Ram and Bhani Pratap Pandey and the injuries on Ramayan Ram is multiple (i) pellet injuries (24 in numbers) on out surface of the right arm and upon the part of right chest in front and back about 2 mm in diameter, (ii) pellet injuries at three places on the right side of neck and (iii) pellet injuries on the right side of chest below exilla (two in numbers). All the injuries were simple in nature caused by fire arms. Injury on Bhanu 3 Pratap Pandey is multiple bleeding pellets injuries on medial aspect of right fore arm in front of hest left side of abdomen in front lower part of abdomen and medial aspect of left fore arm. All injuries are simple in nature caused by fire armed as gun or katta (the home made pistol). 5. However, in this case the informant is Bishwanath Ram and injured are Ramayan Ram and Bhanu Pratap Pandey, P.W. 6 who has stated that at the time of occurrence he was sitting on the stool of the office of the Station Master and Bishwanath Ram was also there and at the time of Birendra Tiwary and Chandradeo Tiwary both armed with pistol and Sheo Prasad Tiwary armed with lathi and Chandradeo Tiwari fired at Ramayan Ram and, thereafter, Birendra Tiwari causing injury to the informant and he identified them in the light of torch at the station and on hulla Ramdeo Chaudhary, Ramashray Tiwari and others came and they saw the accused persons fleeing away and he disclosed them about the occurrence. He has, further, stated that after the firing they came to Sasaram. The other side of witnesses, P.Ws. 1, 2, 3 and 4 have stated that on hearing the sound of firing they rushed to the place of occurrence and saw the accused persons fleeing away and whey they reached at the place of occurrence they saw Bhanu Pratap Pandey and Ramayan Ram there and they got them. The first information report was drawn at 06.00 a.m. However, after the occurrence they were taken to Sasaram. The first information report was lodged at 06.00 a.m. in the G.R.P. Police Station, Sasaram whereas the occurrence took place in the night at 02.55 a.m. though the name of the accused persons have been disclosed, but, in the first information report the 4 name of the appellants do not find place. The informant was Bishwanath Ram, who was all along with them since the time of occurrence uptill their arrest at Sasaram. It appears that till 06.00 a.m. the name of the appellants was not known and the first information report was registered against unknown and subsequently the name of the appellants came. However, the injures as mentioned in the injury report are all simple and the doctor in his cross examination has stated that the injuries are simple in nature and not dangerous to life and was not inflicted with intention to kill. 6. Hence, having regard to the fact that there was enmity and the name of the appellants not find place in the first information report though the occurrence took place in the night, hence, the appellants are entitled to benefit of doubt. 7. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and the order of conviction and sentence recorded by the lower Court is set aside. 8. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 1st day of August 2011, N.A.F.R., S.A.