Criminal Appeal (SJ) No. 196 OF 1994 ******** Against the judgment and order of conviction dated 26.5.1994 passed in Sessions Trial No. 132/91 by the Additional District and Sessions Judge II, Buxar. ****** 1. MAJIDAN MIAN S/O LATE KHALIFA MIAN R/O KURHURIA, P.S. KARAHGAR, DISTRICT- ROHTAS 2. LALA MIAN S/O BASGIT MIAN R/O VILLAGE PALIAN, P.S.- RAJPUR, DISTRICT- BUXAR 3. BIRAHIM MIAN S/O LATE ISMAIL MIAN R/O KURHURIA, P.S. KARAHGAR, DISTRICT- ROHTAS. 4. HISAMUDDIN MIAN S/O MANSOOR MIAN, R/O VILLAGE BURHADIH, P.S.- RAJPUR, DISTRICT- BUXAR 5. HADIS MIAN S/O BANGALI MIAN R/O VILLAGE PALIAN P.S. RAJPUR, DISTRICT- BUXAR ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : M/S Md. Naushad For the State : Mr. Chaubey Jawahar APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted under Section 307 I.P.C. and sentenced to rigorous imprisonment for 5 years whereas the appellant nos. 1 and 2 in addition have so been convicted under Section 27 of the Arms Act and sentenced to 2 years rigorous imprisonment by judgment dated 26.5.1994 passed in Sessions Trial No. 132/91 by the Additional District and Sessions Judge II, Buxar, 2. The case of the prosecution is that the informant awoke on the sound of the accused entering into his dalan and, thereafter, the appellant no. 2 is said to have fired at his chest whereas the appellant no.1 is said to have fired at his temple. 3. Another version about the same occurrence had been given by the grand mother of the informant and injured Yasin in which the place of occurrence described was different from one which had been described by the informant. 4. The prosecution in all examined 9 witnesses out of whom P.W.1, 2 and 4 did not support the case of prosecution whereas P.W. 3 and 9 are formal in nature, P.W.5 is the informant himself and P.W.7 is the grand mother of the injured, P.W. 8 is the Investigating Officer. 5. On going through the evidence of P.W.5, I find that he is completely consistent on the point of appellant nos. 1 and 2 having fired at him but in the absence of the doctor having been examined on behalf of the prosecution it is difficult to uphold the conviction of the appellants under Section 307 I.P.C. 6. In the result the conviction of the appellants under Section 307/149 I.P.C. is hereby set aside but the conviction of the appellant nos. 1 and 2 under Section 27 of the Arms Act is upheld. However, they are sentenced to a period already under gone but in addition they shall pay a fine of Rs. 1000/- each (if alive) to the informant/family members within 8 weeks from the receipt of notice from the Trial Court and in default of which a further sentence of 3 months rigorous imprisonment. 7. With the aforesaid modifications the appeal is dismissed. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 31th March, 2011 NAFR/ Fahad.