Criminal Appeal (SJ) No.391 OF 1994 [Appeal against the judgment and order dated 5.12.1994 passed by the 1st Assistant Sessions Judge, Hilsa, Nalanda in Sessions Trial No.239 of 1981] 1. CHANDESHWAR MAHTO SON OF MAHABIR MAHTO 2. SANJAY KUMAR @ MUNNA MAHTO SON OF CHANDESHWAR MAHTO, ALL RESIDENT OF VILALGE BAKAUR, P.S. ISLAMPUR, DISTRICT NALANDA …………………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent Criminal Appeal (SJ) No.19 of 1995 CHANDRIKA MAHTO @ CHANDRIKA PRASAD, SON OF SOMER MAHTO, RESIDENT OF VILALGE BAKAUR, P.S. ISLAMPUR, DISTRICT NALANDA ……. Appellant Versus THE STATE OF BIHAR ……….. Respondent For the Appellants : Mr. Anjani Verma, Advocate Mr. Pramod Kumar, Advocate Mr. Chandrika Prasad, Advocate For the State : Mr. Anil Kumar, Addl. P.P. Mr. Sanjay Kumar, Addl.P.P. For the Informant : Mr. Mahesh Prasad No.2, Advocate Mr. Rewati Kant Raman, Advocate --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants of Criminal Appeal No.391 of 1994 have been convicted u/ss.307 and 323 I.P.C. and sentenced to R.I. for eight years and six months respectively, whereas the appellant of Criminal Appeal No.9 of 1995 has been convicted u/s.323 I.P.C. and sentenced to R.I. for six months by a judgment dated 5.12.1994 passed by the 1st Assistant Sessions Judge, Hilsa, - 2 - Nalanda in Sessions Trial No.239 of 1981. The case of the prosecution is that the appellant Chandeshwar Mahto assaulted the informant whereas appellant Sanjay Kumar fired at him with the country made pistol and appellant Chandrika Mahto gave lathi blow on his head. During trial the prosecution has examined seven witnesses in all. Out of whom, P.W.2 and P.W.4 are material witnesses and on the point of occurrence whereas P.W.3 and P.W.7 are formal and P.W.5 is the Investigating Officer and P.w.6 is the doctor. P.W.1, who is the father of the informant, is not an eye witness to the actual assault but only on the point of factum of occurrence and having seen the accused persons fleeing away from the place of occurrence. P.W.2, the brother of the informant, is an eye witness to the occurrence, P.W.6, the doctor, found several pellet injuries on the chest of the informant. Admittedly, the three witnesses are closely related and highly interested and even though the occurrence took place in an open area, there is no corroborative independent witness. The next admitted position is that the appellant no.2 did not repeat the fire even though there was no intervening circumstance and therefore it would be unsafe to convict the appellants u/s.307 I.P.C. However, the manner of occurrence as narrated by eye witnesses has remained unshaken and corroborated by independent witnesses. In the result, while Criminal Appeal No.391 of 1994 is - 3 - dismissed with modification that the conviction of the appellants is converted to that u/s.325 I.P.C. and sentence to a period already undergone Criminal Appeal No.19 of 1995 is dismissed with modification in sentence to that which has already been undergone. Patna High Court Dated, 8th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )