Criminal Appeal (SJ) No. 354 OF 1994 In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure. ************ 1. Mahendra Manjhi, S/o Karu Manjhi. 2. Suresh Manjhi, S/o Munarik Manjhi. 3. Nawal Manjhi, S/o Sukar Manjhi. 4. Dwarika Paswan, S/o Late Babu Ram Paswan. 5. Ramotar Paswan, S/o Babu Ram Paswan. 6. Vijay Manjhi, S/o Kali Charan Manjhi. 7. Kashi Manjhi, S/o Munarik Manjhi. 8. Patal Manjhi, S/o Karu Manjhi. 9. Rasho Manjhi, S/o Meghu Manjhi. 10. Sheo Balak Manjhi, S/o Etwari Manjhi. 11. Dewki Manjhi, S/o Karu Manjhi. All R/o Village-Chak Jagmal, P.S.-Bhadaur, District- Patna. ……………..(Appellants) Versus THE STATE OF BIHAR------(Respondent) ************ For the Appellants : Mr. Ranjan Kumar Sinha, Adv. For the State : Mr. Choubey Jawahar, APP. ************ P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. The appellants No. 1 to 4 have been convicted under Section 27 of the Arms Act and sentenced to 4 years RI and in addition under Section 144 IPC sentenced to one year RI. The appellants No. 1 and 4 have also been convicted under Section 307 IPC but appellant No. 1 has been sentenced to 7 years RI whereas appellant No. 4 has been sentenced to 6 years RI. The appellants No. 5 to 11 have been convicted under Section 143 IPC and sentenced to four months RI by a judgment dated 30.09.1994 passed in S.Tr. No. 512 of 1993 by 1st Additional Sessions Judge, Barh. 2 The case of the prosecution is that on 24.05.1992 while the family members of the informant were filling up a ditch the accused persons came there variously armed and protested to it and generally fired on account of which Chando Paswan received injuries and died whereas the informant and one Parwati Devi were injured. After investigation charge-sheet was submitted under Section 302/34 IPC and the appellants were also charged under the said Sections and were acquitted of the same and sentenced as noted above. The prosecution in all examined twelve witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are material witnesses whereas P.W. 7 is the Doctor and P.W. 9 and 10 is the Investigating Officers, P.W. 11 is formal in nature, P.W. 12 is the Doctor who conducted the post-mortem of the deceased. It appears that there were two fardbeyans in the present case. One based on the statement of one Sahdeo Paswan and the other one on the statement of Rameshwar Paswan. Both the fardbeyans materially differ from each other whereas in one fardbeyan fourteen persons were named accused only five were named in the other. The time of occurrence and place of occurrence as well as manner of occurrence naturally differs on material particulars. From the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4, I find that they have 3 varied materially in the participation of the accused persons in the present occurrence. The Trial Court disbelieved P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5, P.W. 6 and P.W. 8 substantially and therefore finding no cogent evidence with regard to the appellant Dwarika Paswan having fired at the deceased the accused were acquitted for the offence under Section 302/34 IPC. P.W. 7 who examined injured, Sahdeo Paswan only found one injury on his leg which was simple in nature but caused by fire arm which was allegedly caused by appellant, Mahendra Manjhi. Since, the injury was simple in nature on a non vital part and in the facts of the case it is difficult to accept that the prosecution has been able to prove its case beyond all reasonable doubt that the said injury caused by appellant No. 1 was with the intention of causing death of Sahdeo Paswan, his conviction is maintained but converted to one under Section 323 IPC and he is sentenced to a period already undergone. His conviction under Section 27 Arms Act is maintained but he is sentenced to the period already undergone by him during trial. However, if the appellant No. 1 is alive he is directed to pay a sum of compensation of Rs. 2,500/- to the injured, Sahdeo Paswan/his family within a period of eight weeks of receipt of such notices from the Trial 4 Court in case he fails to do so an imprisonment of six months RI. Since the evidence of the witnesses are not consistent on the point of firing by the appellants No. 2 to 4, I am inclined to set aside the conviction of the appellant Nos. 2 to 4 in the facts of the case. They are discharged of the liability of their bail bonds. With the aforesaid modifications, the appeal is partly dismissed. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 4th April, 2011. NAFR/Vikash/-