Criminal Appeal (SJ) No. 339 of 1998 ****** Against the judgment of conviction and order of sentence dated 29.08.1998 and 01.09.1998 respectively passed by Shri Saket Bihari Ambastha, learned 6th Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 32 of 1986. ****** Bans Narayan Rai, Son of Kuldip Rai, resident of village – Gamharia, Police Station – Nasriganj, District – Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Syed Alamdar Hussain, Advocate. Miss. Minu Kumari, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and further convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case as alleged in the fardbeyan by the informant Babban Rai is that while he was returning from Gamhariya from Rajpur Bazar at about 2 P.M. and reached at the village Gamhariya east of Gamhariya near the tree of Domwa, in the meantime Bans Narayan Rai 2 armed with a single barrel gun and Naulakh Rai, Lohbanda, Ishwar Rai armed with Bhujali, Dhan Raj Rai armed with Lathi, were concealing themselves under a Jamun tree came and on the command of Naulakh Rai whereas Bans Narayan Rai fired causing injury and he fell down. The motive of the occurrence is the prior enmity with Gotia of the informant and accused persons. 4. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. However, after framing of the charge five witnesses were examined who are P.W. 1 Brijnandan Rai brother of the informant, P.W. 2 Babban Rai is the injured and informant, P.W. 3 is Dr. Jai Govind Singh, P.W. 4 Birendra Nath Pandey is the I.O. and P.W. 5 is a formal witness who has formally proved the evidence. 5. The trial court considered the oral and documentary evidence that P.W. 1 has supported the prosecution case and P.W. 1 corroborated the evidence of P.W. 1 as just after hearing the firing he saw the accused persons fleeing away with the arms and immediately rushed to the place of occurrence where informant disclosed the injury by Bans Narayan Rai and taking into consideration the firearm injury (i) thirteen pea size wounds on the right side of the lower chest and abdomen spread over an area of 9” x 3” with blackening of the skin around the wound. One pellet was palpable and (ii) minor scratches over the right thigh and both shoulders. Both the injuries were simple in nature. Injury no. 1 caused by firearm and injury no. 2 caused 3 by hard and blunt substance which has been marked as Ext. 2 and hence taking into consideration the appellant was convicted under Section 307 of the Indian Penal Code and sentenced as mentioned above. 6. Learned counsel for the appellant, however, contended that there is contradiction in the evidence of P.W. 1 and 2. P.W. 1 though has claimed that he is eye witness but from perusal of his evidence P.W. 1 is not an eye witness to the occurrence. Further P.W. 1 and 2 are the full-brother and other witnesses mentioned in the charge-sheet have not been examined. The injury on the person of the deceased is not dangerous to life as deposed by the doctor and hence it cannot be inferred that the injuries were inflicted with intention to kill to attract Section 307 of the Indian Penal Code. 7. Learned counsel for the State, submits that the witnesses have supported the prosecution case and hence the conviction is sustained. 8. However, taking into consideration the respective submissions of the parties, it is apparent from the prosecution case that while the informant was coming from Bazar Bans Narayan Rai fired at him causing injury and it has come in evidence that his brother was going about two Bans ahead of the informant. The brother has also stated that he was 14 yards apart from his brother when he heard sound of firing and he turned down and saw Bans Narayan Rai fleeing away and when he reached near the brother then the brother informant disclosed assault by Bans Narayan Rai. Hence, the evidence of P.W. 2 is well corroborated by the evidence of P.W. 1. There is nothing in the evidence of witnesses P.W. 1 and P.W. 2 to disbelieve. Hence, 4 non-examination of the other witnesses not of much consequence and hence the evidence of P.W. 1 and 2 have been found reliable and evidence of P.W. 2 corroborated by the evidence of P.W. 1. However, the injury on the informant is pellet injury and blackening. The doctor in his cross-examination has stated that he did not advise for X-ray because it was not needed and the aforesaid injury was not fatal to life. Hence, in view of the evidence of doctor that the injuries were simple it can well be inferred that the injuries were not inflicted with intention to kill. The offence under Section 307 of the Indian Penal Code is not made out and hence, the order of conviction and sentence recorded under Section 307 of the Indian Penal Code is set aside and it is substituted by Section 324 of the Indian Penal Code. 9. However, having regard to the facts and circumstances and from perusal of the records, it appears that this appellant remained in jail for about three years and six months at the time of investigation and further remained in jail for two months after his conviction, the occurrence is of the year 1995 and the appellant has suffered of the prolong litigation since 1985 and hence under the facts and circumstances the ends of justice shall meet by sentencing the appellant for the period already undergone and hence the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 12th August, 2011. N.A.F.R./Kundan.