Criminal Appeal (SJ) No.134 of 1996 Against the judgment and order of conviction and sentence dated 07. 06. 1996, passed by Sri Baikunth Nath Shahi, 2nd Additional Sessions Judge, Nawadah, in Sessions Trial No. 7 of 1991/6 of 1993. 1. Prayag Mahto @ Yadav, son of Fakira Yadav. 2. Fakira Mahto @ Yadav, son of Late Bigan Yadav. 3. Moti Mahto @ Yadav, son of Late Sukar Yadav. 4. Pragasu Rabidas, son of Bisheshwar Rabidas. 5. Mahabir Mistry, son of Late Chutar Mistryh. 6. Tetar Mahto, son of Fagu Mahto. 7. Mahadeo Mistry, son of Late Puna Mistry. 8. Fagu Mahto, son of Banthu Mahto. All residents of village- Abdul Tola, Hathmarwa, Police Station- Shridala, District- Nawadah. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mrs Rina Sinha, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 307 I.P.C. and sentenced to undergo imprisonment for seven years. Further convicted for offence under Section 148 I.P.C. and sentenced to undergo imprisonment for one year and further convicted for offence under Section 27 of the Arms Act and sentenced to undergo imprisonment for 2 five years. Appellant no. 2 has been convicted for offence under Section 435 I.P.C. and sentenced to undergo imprisonment for two years and further convicted for offence under Section 147 I.P.C. and sentenced to undergo imprisonment for six months. Appellant nos 3 to 8 have been convicted for offence under Section 147 I.P.C. and sentenced to undergo imprisonment for six months each. 3. The prosecution case as alleged by the informant that on 21. 04. 1987 at about 6.30 A.M. while the informant was mending roof (chauni), Fakira Mahto came got on the roof and set on fire then the informant got down from the roof then Prayog Mahto brought a gun from his house and fired by which he got injury on his both legs. In the meantime Mahabir Mistry, Pragasu Rabidas, Moti Mahto, Tetar Mahto, Mahadeo Mistry and Fagu Mahto came with lathi and assaulted him. On his cry his brother Rambriksh Prasad ran and accused persons flee away. The motive of the occurrence is of land dispute. 4. On the Fardbeyan, F.I.R. lodged. After investigation charge sheet submitted. Cognizance taken 3 for offence under Section 307, 436, 147, 148 and 307/149. Case committed to the Court of Sessions. However, during trial four witnesses were examined. P.W. 1 is Rambriksh Prasad, P.W. 2 is the informant, P.W. 3, is the doctor, P.W. 4 is the I.O. and P.W. 5 is formal witness who has formally proved Ext. 3. The defence has also adduced two witnesses as D.W. 1 and D.W. 2 and also proved Ext. A Memorandum of Partition and Ext. B is protest-cum-petition filed by Rajia Devi, wife of Prayog Mahto against Rambriksh Prasad. 5. P.W. 3 is the doctor who examined on the person of Sarju Prasad found multiple small pellet injuries of 1/4" x 1/4"x skin deep left and right leg above and below knee joint on the back portion. The doctor found 10 such injuries on left leg and 15 injuries on the right leg. However stated that pellets were not recovered from the injuries as there were not complete pellets rather they were splinters and suggested x-ray. He has further stated that splinters not taken out and they remained in the body. 6. P.W. 2 is the informant and in his evidence has stated that he was mending roof of his Gosala then 4 accused persons came and set on fire the roof. He supported the prosecution case about setting fire. He has further stated Prayog Mahto ran into the house bring the gun and fired causing injury on his both legs. When he fell down then other accused persons assaulted him by lathi. His brother Rambriksh Prasad saw the fire and assault by lathi on his person. However, in his cross- examination he has stated that at the time of fire set in he was on the roof and he tried to set off fire and in the meantime one shot was fired and he got injured. He has further stated he received injury and fell down and at the time of he fell down then he saw that Prayog has gun in his hand and when he saw Prayog gun in his hand then he understood that he had fired. 7. The trial court on considering the evidence of P.W. 1 and P.W. 2 that there is consistent evidence of prosecution about assault followed with medical evidence corroborating the case of prosecution. I.O. found the informant in injured state and hence convicted and sentenced as mentioned above. 8. However, P.W. 1 is brother of the informant. has come to say that on hulla he ran to the P.O. and saw 5 that fire has already set in and Fakira set on fire and he saw other accused persons except Fakira have lathi in their hand. He stated that Prayag ran to the house bring the gun and then fire causing injury to his brother. 9. The prosecution case is written report by P.W. 2 that accused persons came set in fire and Prayog fired by which he fell down and accused persons assaulted when he mending. Upon his cry P.W.1 Rambriksh came. However, in his evidence in court P.W.2 has deposed that he was mending his roof, therefore set in and got fire injury and when he fell down then saw Prayog armed with gun then he understood that Prayog may have filed. Furtehr he deposed that Rambriksh saw the occurrence. 10. However, these evidence are contradicting to his statement in Fardbeyan. In the Fardbeyan, P.W. 2 has stated that after the occurrence of fire set in and he got injured then he made cry then Rambriksh came and then accused persons flee away. Hence according to the Fardbeyan, P.W. 1 is not an eye witness to occurrence and the evidence of P.W. 2 that he fell down then saw Prayog standing with gun also indicated that he did not 6 saw firing. However, the allegation of assault by lathi, slaps and fist when he fell down has not been corroborative by the medical evidence. The allegation of assault is also vague and omnibus and hence does not inspire confidence. 11. Hence apparently according to the prosecution case Rambriksh Prasad, P.W. 1 was not an eye witness either for setting on fire or received fire arm injury by his brother, P.W. 2 . 12. Learned counsel for the State however, persuaded that witnesses have supported the prosecution case about presence of appellant no. 1 with gun and there is fire arm injury on the person of informant and hence itself it presume that appellant has fired causing injury. 13. However, from the evidence it is apparent that both parties are co-sharer and there is land dispute regarding Gosala. A complaint petition has also been filed by Rajia Devi, wife of Prayog Mahto which has been proved as Ext. B. I.O. P.W. 4 show that land adjoining to the house of Fakira Mahto, though, I.O. has found burnt of roof. However, only two witnesses, P.W. 1 and 2 have been examined and their evidence are in 7 contradiction to the prosecution case as stated in the Fardbeyan both claim to have been seen the occurrence but both are interested witnesses. P.W. 2 is eye witness of the fire. However, both parties are claiming Gosala. P.W. 1 has admitted that Rajia Devi has filed a case in the court of C.J.M. against him. Neither I.O. nor any independent witness has come to support the prosecution case. The x-ray suggest by doctor has also not been proved and hence it caste serious doubt on prosecution case. 14. Hence having regard to the facts and circumstances and evidence of witnesses of P.W. 1 and 2 regarding setting on fire suffer from contradiction does not inspire confidence and their evidence are contradicting in reaching the P.O. at about the occurrence. Hence it is apparent that prosecution has not been able to prove the prosecution case. 15. Hence, I find and hold that appellants are entitle for benefit of doubt as prosecution has not been able to prove the charges beyond all reasonable doubt. 8 Hence order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. Patna High Court, The 8th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)