CRIMINAL APPEAL (SJ) NO.928 OF 2007 Against the judgment of conviction and order of sentence dated 17.09.2007 and 19.09.2007 passed by Additional Sessions Judge, Fast Track Court No.II, Nalanda at Biharsharif in Sessions Trial No.281 of 1998/43 of 2005 GYAN RANJAN @ RANJAN KUMAR…………………………………Appellant Versus STATE OF BIHAR………………………………………………………………Respondent ----- For appellant:-Sri Kanhaiya Prasad Singh, Sr Adv. For the State:- Sri R.B.Roy ‘Raman’, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was charged of committing offences under Section 307 IPC and Section 27 of the Arms Act by the learned Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.281 of 1998/43 of 2005 and by judgment dated 17.9.2007, the learned Presiding Officer of Fast Track Court No.II, Nalanda at Biharsharif held the appellant guilty of committing the two offences. After hearing the appellant on sentence on 19.9.2007, the learned trial Judge directed the appellant to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.20,000/- for committing offence under Section 307 IPC and further to go 2 rigorous imprisonment for three years and to pay a fine of Rs.5,000/- for being convicted under Section 27 of the Arms Act. The sentences were directed to run concurrently. The learned trial Judge further directed that in case the appellant defaulted in paying the sentence of fine, he was to undergo rigorous imprisonment of one year. The appellant brings into question the above judgment of conviction and order of sentence through the present appeal. 2. The prosecution is based on the fardbeyan of P.W.3 Manoj Kumar which was recorded in Sadar Hospital, Biharsharif at about 10 A.M. on 29.12.1996. It was stated by P.W.3 that the appellant came to the house of P.W.2 Sudhir Kumar, his cousin and asked him to close the hole which was created for fixing artificial ladder for construction of a wall, else he will kill him. The informant stated that at a particular time many persons had assembled in the house of the appellant where there was none in the house of P.W.2 and the informant along with P.W.2 Sudhir Kumar, P.W.1 Naveen Kumar, Bhishan Kumar(not examined)were washing their mouths near the Dharmshala situated there. It was stated that while they 3 were washing their mouths, the appellant also came there upon which P.W.2 stated that as to why he was abusing him after coming to his house upon which the appellant started hurling abuses loudly as a result of which the father of the appellant who was also present there stated that the appellant should shoot P.W.2 dead. The appellant is said to have pulled out a country made pistol from his waist and said to have fired a shot at P.W.2 which missed. The appellant fired another shot and that hit P.W.3 in his left thighs as a result of which he became injured and he was shifted to the hospital. 3. The investigating officer of the case has not been examined and the case diary has been brought on record by examining P.W.5 who has stated that he was acquainted with the hand-writings of the investigating officer and the case diary was written by S.I. Sarad Kumar who was on the date of occurrence posted in Deepnagar police station. However, it appears that the appellant was sent for trial which ended in his conviction. 4. Four other witnesses were also examined besides examining P.W.5 Yogendra 4 Prasad who was a formal witness. P.W.1 was Naveen Kumar and P.W.2 Sudhir Kumar who as per the FIR were with P.W.3 near the place described as Dharmshala and were washing their mouths. It appears from the evidence that P.W.3 Manoj Kumar was deviating from his initial story and was narrating that while he was going to school he was hit by gun shot and fell injured. He did not see his assailant and as such he could not say who had fired at him. Thus, in evidence P.W.3 the informant was not supporting the fact that P.Ws.1 and 2 were with him or the fact that P.W.3 was with P.W.1 and 2 and was also washing his mouth. Besides, he does not support that there was any previous altercation or exchange of hot words between the sides on the issue of closing the hole in the southern newly constructed wall of the house of P.W.2. 5. As against the above both P.Ws.1 and 2 stick to the original story contained in the fardbeyan of P.W.3. However, P.W.1 has stated to the topography of the place of occurrence in paragraph-5 of his evidence and it appears further from his evidence in paragraph-6 that when the first shot was fired 5 by the appellant, the informant and the two witnesses along with others left the place to hide themselves behind the wall of the Dharmshala. This also appears probabilized by the evidence of P.W.2 when he stated that P.W.3 was hit by the shot fired by the appellant. He was standing by the side of the corner of the Dharmshala. It is not clear as to whether the three prosecution witnesses, namely, P.Ws.1, 2 and 3 were standing at the same place or at different places, but this much is clear that the place from where the appellant was firing the shot at P.W.3 as per P.W.1 was the behind the corner of the Dharmshala. The appellant was said to be standing on the southern eastern corner of Dharmshala whereas the injured was standing on its southern corner. This could be indicating that the distance between the injured and the assailant was not close and it must have been in many feet. However, the evidence of P.Ws.2 and 3 indicates that the distance between them and the assailant, thats, the present appellant, was about 7-8 feet. The evidence of P.W.2 does not indicate the place and the manner in which the shot is said to be fired by P.W.1. He does not say that as soon as 6 the appellant had arrived at the scene of occurrence he along with others retreated to hide themselves behind the walls of Dharmshala rather from the evidence of P.W.2 in paragraph- 3 onwards it appears as if the incident had occurred and the prosecution witnesses had not taken shelter neither sought any protection of any wall or any other construction. This is the reason that the court finds difficulty to act upon the evidence of P.Ws.1 and 2 because they give contradictory and conflicting evidence on the most material part of the place of occurrence as also the manner in which the occurrence had occurred. Besides, when the evidence of P.W.4, the doctor, is considered what appears from that is that the shot was fired from the very close range, may be a distance of under four feet as there was charred marks around the wound which could never be possible if the shot could have been fired from a distance of beyond four feet or from a distance as appears indicated by P.W.1 in his evidence. Besides, the informant does not say that the appellant had fired at him and had injured him. The nature of the evidence and its quality appears such which could not be 7 safe to act upon so as to basing or so as to sustaining an order of conviction. 6. In the result, the appeal succeeds. The judgment of conviction and the order of sentence passed by the Fast Track Court No.II, Nalanda at Biharsharif are hereby set aside. The appellant is acquitted of the charges. He is on bail. He shall stand discharged from the liabilities of his bail bond. Patna High Court, Dated, the 29th day of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)