Criminal Appeal (SJ) No. 170 OF 1996 Against the judgment and order dated 25.07.1996 passed by Sri Om Prakash Sinha, District and Sessions Judge, Gopalganj in S.Tr. No. 136 of 1986. ************ 1. Rijhan Singh, S/o Ram Chait Singh. 2. Prabhu Kanu, S/o Lakhichand Sah. Both are resident of Village-Kabirpur, P.S.- Mohamadpur (Baikunthpur) District-Gopalganj. ……(Appellants) Versus THE STATE OF BIHAR-------(Opposite Party) With Criminal Appeal (SJ) No. 171 OF 1996 Yogendra Singh, S/o Ram Swarth Singh, resident of Village-Kabirpur, P.S.-Mihamadpur (Baikunthpur) District-Gopalganj. ……….(Appellant). Versus THE STATE OF BIHAR ..……..(Opposite Party) ************* For the Appellants : Mr. Arun Kumar Singh, Adv. : Mr. Jeetendra Narayan, Adv. For the State : Mr. Murli Dhar, APP. : Mr. Jitendra Kumar Singh-I, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. It has been submitted that the Appellants Yogendra Singh and Rijhan Singh are dead and, therefore, their appeal abates. 2. The appellant No. 2, Prabhu Kanu has been convicted under Section 307/34 IPC and sentenced to RI for five years as also under Section 27 Arms Act and sentenced to two years RI by the District and Sessions Judge, Gopalganj in S.Tr. No. 136/1986 by a judgment dated 25.07.1996. 3. The case of the prosecution according to informant Surendra Rai is that on 05.03.1985 when the informant was returning home after casting his vote the accused persons surrounded him and asked him as to in 2 whose favour he had cast his vote when he refused to disclose the same accused Yogendra Singh fired a shot which hit the temple of the informant. When he fell down some persons took him to the hospital for first aid. It was also alleged that one Mewalal Rai was shot at by the accused persons. In course of treatment Surendra Rai the informant died and Section 302 IPC was added in the First Information Report. The appellants were charged under Sections 304/149 IPC and Sections 3/5 Explosive Substance Act and convicted as mentioned above. 4. During trial the prosecution in all examined six witnesses out of whom P.W. 1, P.W. 2 and P.W. 3 are eye witnesses of the occurrence. P.W. 4 and P.W. 5 have been tendered. P.W. 6 is the Investigating Officer. The Doctor has not been examined in the present case. P. W. 1 an eye witness has given a vivid description of the manner in which the occurrence had taken place. He specifically alleged that accused Surendra Rai was having a gun and that he fired at the deceased. He further stated that appellant Prabhu Kanu fired at one Mewalal Rai due to which he was injured. However, it appears that this witness named appellant Prabhu Kanu for the first time in Court. P.W. 2, Ambika Rai also named in the First Information Report has stated specifically that Yogendra Singh had fired on the informant on account of which he fell down and that appellant Prabhu Kanu had also fired due to which Mewalal had been injured. P.W. 3, Mewalal Rai injured has stated that it was appellant Prabhu Kanu who had fired and therefore that some one hit 3 him on the right eye causing complete loss of vision in the same. 5. However, from the evidence of these three witnesses even though the manner of occurrence is well proved, it is difficult to conclude positively that the action of the appellant No. 2, Prabhu Kanu was with the intent of causing death of P.W. 3. The Doctor who had examined the said witness has not been examined and, therefore, the allegation against the appellant No. 2 is merely oral in nature. 6. In the facts and circumstances of the case, I am inclined to set aside the conviction of the appellant No. 2, Prabhu Kanu under Section 307/34 IPC but he is convicted under Section 325 IPC. His conviction under the Arms Act is maintained. However, considering the long lapse of time between the date of occurrence and this appeal being heard the period already undergone by him during trial shall be sufficient to meet the ends of justice. 7. In the result the appeal is dismissed with the aforesaid modifications in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 4th July, 2011. NAFR/Vikash/-