Criminal Appeal (SJ) No. 197 of 1998 ****** Against the judgment of conviction and order of sentence dated 27.04.1998 respectively passed by Shri Amresh Kumar Lal, learned 5th Additional Session Judge, Arrah, Bhojpur in Session Trial No. 322 of 1985. ****** 1. Ram Bilash Rai, Son of Deo Narain Rai. 2. Narad Rai @ Narad Muni Rai, Son of Ram Deo Rai. 3. Vindhyachal Rai, Son of Ram Prit Rai. 4. Ram Ayodhaya Rai, Son of Raj Dayal Rai. 5. Ram Kailash Rai, Son of Deo Narain Rai. 6. Ram Deo Rai, Son of Raj Pati Rai. 7. Jai Govind Rai, Son of Raj Dayal Rai. 8. Dharam Bilash Rai, Son of Deo Narain Rai. 9. Kapil Muni Rai, Son of Gopal Rai. All residents of Village – Nonadih, Police Station – Tarari, District – Bhojpur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. 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. Nobody appears on behalf of the appellants. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court. 2. Heard. 3. The appellant nos. 1 to 4 have been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and a fine of Rs.500/- each and in default 2 of payment of fine to undergo rigorous imprisonment for one month each. Appellant nos. 1, 2 and 3 have further been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.500/- each and in default of payment of fine to undergo rigorous imprisonment for one month. Both the sentences shall run concurrently. Appellant nos. 5 and 8 are ordered to be released on probation of good conduct by entering into a bond of Rs.1,000/- each for one year. Other appellants Ram Kailash Rai and Dharam Bilash Rai have further been convicted under Section 148 of the Indian Penal Code and ordered to be released on probation of good conduct entering into the bond of Rs.1,000/-. Appellant nos. 1, 6, 7, 8 and 9 are ordered to be released on probation of good conduct by entering into a bond for one year under Section 147 of the Indian Penal Code. 4. The prosecution case as alleged is that with regard to the dispute of irrigation of the land there was verbal altercation followed with pistol altercation and thereafter it is alleged that the accused persons fired and assaulted by Lathi. It is also alleged that Ram Bilash Rai and Narad Rai fired causing injury to Lekhnath Sah (P.W. 2). Tilku Singh (P.W. 3), Jai Govind Singh (P.W. 5), Sanker Singh (P.W. 4), Bhaju Singh, Tangar Singh (P.W. 7) and Ram Chandra Singh were assaulted with lathi by Dhan Bilash Rai by which they got injury. 3 5. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted. During the trial nine witnesses were examined on behalf of the prosecution. However, the doctor and the I.O. have not been examined and the injury report has not been proved. However, P. Ws. 2, 3, 4, 5 and 7 who were also injured have supported the prosecution case about the firing and about the injury on their person by the firearm. 6. The defence of the accused as apparent from the suggestion is that there is a counter case and accused persons were arrested and brought in injured condition to Ara and for the same occurrence complaint case was filed against the prosecution in which the prosecution party was convicted by the trial court but the injury has not been explained. 7. The trial court after considering the oral and documentary evidence convicted the appellants, as stated above. 8. Learned amicus curiae, however, contended that the occurrence is with regard to the irrigation of the land. There was no intention to kill and there is allegation of assault by firearm and Lathi but the injury has not been proved by the prosecution and non-examination of the doctor and I.O. has caused prejudice. 9. From perusal of the records, it is apparent that nine witnesses have come to support the prosecution case. The witnesses claimed to have received injury. They claimed to have admitted and treated in the 4 hospital by the doctor. However, neither the doctor has been examined as witness in this case nor the injury report has been proved. Hence, due to non-examination of the doctor the prosecution has not proved the injury and prosecution case about the assault is not corroborated by the medical evidence. It is also not possible to infer whether the injury was as such to have been inflicted with intention to kill whereas the occurrence is for irrigation of the land. Hence, it cannot be inferred that the assault was made with intention to kill and hence offence under Section 307 of the Indian Penal Code is not made out. 10. P. W. 1 has admitted in his cross-examination in para 14 that he was convicted in a complaint case filed as counter to this case and though denied the suggestion that the appellant was arrested in injured state and brought to Ara and the case was filed for the same occurrence itself indicates that it was a case of case and counter case in which prosecution party were convicted. It is true that the suggestion is not a proof of the fact but the defence has not to prove the case even if the defence of accused appears to be probable and satisfy the test of probability then they are entitled to the benefit of doubt. The cardinal principle of the criminal jurisprudence is to test the evidence on the probability and going on the broad probabilities if the evidence found probable in favour of defence. The defence may get the benefit of doubt. Hence, P. W. 1 has accepted that there was counter case in form of 5 complaint in which prosecution party was convicted though the said conviction was set aside in appeal. 11. Hence, having regard to the fact that there is a case and counter case and the defence also got injured. However, having regard to the fact that the prosecution party did not establish or prove the injury or injury report even to infer the nature of injury. However, it is a case in which the injury alleged to be inflicted but injury report not proved. Hence, it is difficult to infer that there was intention to kill. 12. Hence, taking into consideration the entire evidence, neither the injury report has been proved nor the place of occurrence has been established and non-examination of the I.O. has caused prejudice as the defence could not record the contradiction and the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence is hereby set aside and hence this appeal is allowed. 13. Mr. Arun Kumar Tripathi, shall be supplied a copy of this judgment and he shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 29th August, 2011. N.A.F.R./Kundan.