Criminal Appeal (SJ) No.230 of 1998 **** Against the judgment, dated 01.06.1998, passed by Sri Vijay Prasad Poddar, Additional Sessions Judge, VIII, Patna, in S. Tr. No. 158 of 1991 **** 1. Sri Chand Rai 2. Amir Rai 3. Sakaldeo Rai, all sons of late Harkhu Rai 4. Awadhesh Rai, 5. Sanjay Rai, all sons of Sakaldeo Rai 6. Binod Rai, son of late Ramchandra Rai All are residents of village Kamrjee, P.S. Caurichak, district Patna .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Durga Nand Jha & Gajanan Mishra, Advs. 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. All the appellants have been convicted under Section 148 of the Penal Code and sentenced to undergo rigorous imprisonment for two years and, further, convicted under Section 458 of the Penal Code and sentenced to undergo rigorous imprisonment for three years and, again, Sri Chand Rai, appellant no. 1, has been convicted under Section 324 of the 2 Penal Code and sentenced to undergo rigorous imprisonment for two years, further, convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Appellant no. 6, Binod Rai, appellant no. 3, Sakaldeo Rai, and appellants 2, 4 and 5 convicted under Section 423/34 of the Penal Code and sentenced to undergo rigorous imprisonment for two years. All the sentences have been ordered to run concurrently. 3. The prosecution case, as alleged by the informant, Pankuri Devi, that on 10.04.1988 at about 12.00 in the mid night while she was sleeping in osara then Harku Rai, Sri Chand Rai, Sakaldeo Rai and Binod Rai, armed with country made gun, Amir Rai, Sanjay Rai and Awadhesh Rai, armed with bhala, entered into her house and started looting and when she asked about their identity then they fired upon her causing injury on her leg. On the sound of firing the villagers, Muneshwar Rai, P.W. 4, Saheb Rai, P.W. 1, Pappu Rai, P.W. 2, and Mundrika Rai, P.W. 6, collected there and on being apprehensive the accused persons after looting the jewelry and utensils of the house, fled away. On the fardbeyan, the first information report lodged for offence under Sections 307, 380 and 327 of the Penal Code. The charge sheet was submitted under Sections 307, 324 and 380/34 of the Penal Code and 27 of the Arms Act. However, after taking cognizance the case committed to the Court of sessions and charge was framed under Section 27 of the Arms Act against Harku Rai, Sri Chand Rai, Sakaldeo Rai and Binod Rai. 4. During the trial seven witnesses were examined in the case and though the informant and the doctor not examined and the injury 3 report has also not been placed on record. However, P.Ws. 1, 2, 3, 4, 5 and 6 are the material witnesses, who have come to support the prosecution case. 5. The learned counsel for the appellants, however, contends that the informant who was injured has not been examined and the witnesses, who come to support the prosecution case are not the eye witness and though they have supported that they have learned abut the firing by Sri Chand Rai causing injury to the informant and they have stated that they come to the place of occurrence on hearing the sound of firing and, hence, are not competent witness and the investigating officer has also not found any evidence of firing and all the accused persons are co-villagers and there is prior enmity between the informant and the accused. 6. However, prosecution case is that persons came armed with gun and bhala and started looting and when she asked that who are they, on which they fired causing injury to the informant However, the informant has not been examined. P.W. 1 stated that when he heard the sound of firing then he saw his grand mother injured who disclosed him that Sri Chand Rai has fired upon her. He claimed to have identified the fleeing away accused in the light of lantern. P.Ws. 2, 3, 4, 5 and 6 have also stated in evidence in a parrot like statement that they heard the sound of firing and went to the place of occurrence and found both the legs of the informant injured and the informant disclosed that Harku Rai, Sri Chand Rai, Sakaldeo Rai and Binod Rai come and on seeing her the accused persons fired upon her and fled away after looting the jewellery and 4 utensils. However, they stated that night was dark and they identify the accused persons well. They saw accused persons in the light of lantern. However, the informant has not been examined, hence, the allegation of firing has got no value and the doctor also has not been examined to prove the injury. 7. The investigating officer has been examined. He has stated about the description of the place of occurrence where it is alleged that the firing took place causing injury to the informant. However, he did not find any mark of loot and dacoity or theft of any article. 8. Hence, taking into consideration, the entire evidence, having regard to the fact that the informant, who is the eye witness, has not been examined nor the doctor has come to prove the injury report nor the investigating officer found any mark of firing or any mark of dacoity or theft and, hence, the evidence of the informant also suffers from infirmity as the occurrence took place in the dark night and there is enmity between the parties and the statements of the witnesses are parrot like, hence, I find and hold that prosecution has not been able to prove the charge beyond reasonable doubt. 9. The order of conviction and sentence is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 05th day of August 2011, N.A.F.R., S.A.