Criminal Appeal (SJ) No. 104 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Sidheshwar Prasad @ Sidheshwar Mahto, S/o Late Saudagar Mahto, R/o Village-Badara, Police Station-Nooresarai, District-Nalanda. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Nawal Kishore Singh, Adv. : Mr. Sunil Kumar, Adv. : Mr. Upendra Mishra, Adv. For the Informant : Mr. Pramod Kumar, Adv. : Mr. Ritesh Kumar, Adv. For the State : Mr. Binod Bihari Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Sections 307 and 326 IPC and 27 Arms Act and sentenced to RI for ten years and a fine of Rs. 2,000/- out of which Rs. 1,000/- worth to be paid to the injured Paras Nath but no separate sentence has been passed under Section 326 IPC and 27 Arms Act by the 1st Additional Sessions Judge, Nalanda in S.Tr. No. 555 of 1990 by a judgment dated 27.04.1996. 2. The case of the prosecution according to the informant Pyare Singh is that when he and his son Paras Nath were returning after having worked in the fields the appellants appeared and started abusing the family members of the informant and when the informant protested he fired from his licensed gun which hit Paras Nath and also the informant Pyare Singh. 2 3. During trial the prosecution in all examined eleven witnesses. The informant was examined as P.W. 6 and in cross-examination his evidence was accepted. P.W. 10, Paras Nath was the injured son of the informant. P.W. 7, the Doctor examined Jitendra Kumar who has not been examined during trial whereas P.W. 8 examined injured, Pyare Singh and P.W. 9 examined Paras Nath. In absence of the evidence of the injured Pyare Singh and Jitendra Kumar the evidence of P.W. 7 and P.W. 8 has no meaning for the prosecution. The Court is left with the evidence of P.W. 9 who had examined Paras Nath i.e. P.W. 10. 4. On going through the evidence of P.W. 9, I find that the Doctor had opined that the injury was muscle deep despite which he stated that the pillets were embedded inside. There were no chest injuries on his person. His further opinion was that injury No. 1 caused on the epigastrium region and the injury No. 2 which was on the abdomen was simple in nature. 5. From the evidence of the material witnesses i.e. P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 10 it is evident that all of them were interested and related inter se. No independent witness has been examined on behalf of the prosecution. 6. From the evidence of the Investigating Officer it appears that the gun of the appellant was seized right after the occurrence but the same was not tested to see as to whether any firing had been made from the said gun and in absence of the same the prosecution has not been 3 able to bring the best evidence which would have corroborated its case of firing by the appellant from a licensed gun. 7. Considering the entire conspectus of the case, I am unable to uphold the conviction of the appellant under Section 307 IPC and therefore he is acquitted of the charges under Section 307 IPC. 8. On going through the evidence of P.W. 9 and P.W. 10 there is no scope for interference of the conviction of the appellant under Section 326 IPC. However, the sentence already undergone by him during trial shall be sufficient for the said conviction. The conviction of the Appellant u/s 27 Arms Act is maintained but no separate sentence is passed in its regard. 10. In the result, the appeal is dismissed with aforesaid modification. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 12th May, 2011. NAFR/Vikash/-