Criminal Appeal (SJ) No.390 OF 1994 [Appeal against the judgment and order dated 19.11.1994 passed by the District and Sessions Judge, Madhepura in Sessions Case No.86 of 1988] SHEO PRASAD SINGH ALIAS SHEO PRATAP SINGH, SON OF VIDHYA SAGAR SINGH, RESIDENT OF VILLAGE KHUTI RAHI, P.S. KUMARKHAND, DISTRICT MADHEPURA …………………….. Appellant Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Pravin Kumar Sinha, Advocate For the Respondent : Mrs. Madhuri Lata, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s. 307 I.P.C. and sentenced to R.I. for four years by a judgment dated 19.11.1994 passed by the District and Sessions Judge, Madhepura in Sessions Case No.86 of 1988. The case of the prosecution is that on 4.5.1985 the informant learnt from one Kailash Yadav that the appellant had shot at his father, upon which he went there and found gun shot injuries on the chest of his father (P.W.4). The defence of the appellant was that an altercation had arisen between the accused and the injured and Sikan Paswan and Suben Paswan over plucking of litchi fruits in which Suben Paswan had fired at the accused but it accidentally hit P.W.4. During trial the prosecution has examined seven - 2 - witnesses in all. Out of whom, P.W.5 is the informant and hearsay on the point of occurrence, whereas P.W.1 and P.W.2 are Dafadar and Choukidar respectively, who had gone with the informant and heard about the occurrence. P.W.1 conceded that he had heard that an altercation had taken place between the accused persons on the one side and the Paswans on the other over plucking of litchi fruits. He also learnt that the injured had instituted a case against Sikan Paswan after he had regained his consciousness which fact has been supported by P.W.7, the father of the appellant, who stated that Kumarkhand (Murliganj) P.S. case No.115 of 1985 had been instituted against Suben Paswan and Siken Paswan for the same occurrence. P.W.1 is the injured himself but he has not supported the case of the prosecution and, therefore, he has been declared hostile. P.W.3 has partly supported the defence case saying that an altercation had arisen between Suben Paswan and Siken Paswan and the accused persons over plucking of lichi fruits and the injured P.W.4 had intervened but the accused had tried to fire at Sikan Paswan and Suben Paswan in which transaction the injured who did not move was hit. However, this witness later on during cross-examination stated that he had only heard the sound of firing and was not an eye witness. So in effect there is no eye witness to the occurrence and the entire case rests on either hearsay inadmissible - 3 - evidence since the injured himself did not support the factum of occurrence. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant on 19.11.1994 passed by the District and Sessions Judge, Madhepura in Sessions Case No.86 of 1988 is set aside. The appellant is discharged from the liability of his bail bonds. Patna High Court Dated, 8th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )