CRIMINAL APPEAL No.186 OF 1993 Against the Jugement and Order dated 28th June, 1993 passed by Sri Chakradhar Rai, Ist Additional Sessions Judge, Samastipur in Sessions Trial No.109 of 1988/20 of 1990. SHAMBHU PANDEY, Son of Ram Sagar Pandey, resident of village-Labari, P.S. Angar, District-Samastipur. ---------------(Appellant) Versus STATE OF BIHAR--------------------------- (Respondent) For the Appellant:- Mr. Ashutosh Kumar, Advocate. For the State:- Mr. Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant Shambhu Pandey was put on trial with two others, namely, Rabindra Pd. Singh and Ashok Kumar Singh on Sessions Trial No.109 of 1988/20 of 1990 and was found guilty of committing offences punishable under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. The two other accused who stood charged under Section 307 read with 109 and 307 read with 34 respectively were acquitted. The sentences inflicted upon the appellant were rigorous imprisonments of 7 years and 5 years respectively on each of the above respective courts and the same were directed to run - 2 - concurrently. The above judgement of conviction and order on sentence dated 28.6.1993 are being questioned presently in this appeal. 2. The informant P.W.1 lodged his fardbayan (Ext-2) while being treated in Samastipur hospital stating that while he was coming home, he found a commotion like situation in and around the campus of Samastipur Railway Junction in which a man was firing indiscriminately. Another person was telling that the accused, who was firing shots, was a police man and was putting the department in disrepute by his misdeeds of being drunk and firing shots. The informant alleged that while he was attempting to come out of the railway station under an impression that the firing had died down, he was hit in his scrotum by a bullet which caused profused bleeding and forced the informant to hire a Rickshaw to rush to the hospital where he was admitted for treatment. 3. On the basis of Ext-2, the FIR of the case, Ext-4, was drawn up and the investigation was taken up which ultimately resulted in the trial of the accused persons - 3 - and passing of the impugned judgement. 4. It was contended by Sri Ashutosh Kumar, the learned counsel appearing for the Appellant that out of five witnesses examined in the case P.Ws.2 and 4 were witnesses of formal character having proved the writings of the fardbayan Ext-2 and that of the FIR Ext-4, P.W.5 was declared hostile. As such, it was contended that the solitary witness, i.e., P.W.1 Naresh Kumar Vikal was the witness on whose evidence, which was supported as per the impugned judgement by the evidence of Dr. Anil Chandra Sinha, P.W.3, the conviction was recorded. It was contended that on reading of the evidence of the solitary witness P.W.1 it may be found that in fact he had not identified any one on appellant as the man who had fired the shots and had created a situation of alarm on and around the place of occurrence. As such, the support of the medical evidence appears of no value or consequence. It was further contended that it was a fit case in which the appellant ought to have been acquitted. 5. I was taken through the evidence of P.Ws.1 and 3. P.W.1 in his entire examination- - 4 - in-chief did not state that he had identified the appellant as the man who was firing shots or who had fired the shot which injured him. In fact, after considering the evidence of P.W.1 what I find is that the informant could not know as to who was firing shots and had created the pandemonium at the railway station and further, as to whose shot had hit him from his back at the particular part of his body. The informant mainly stated in his examination- in-chief itself that an injured man was also rushed to the same hospital where P.W.1 had been admitted and persons present there pointed out that it was this appellant and he had fired as generally as also at the informant and as such, he had identified the appellant. In cross-examination paragraph 9 the informant stated that he had not seen or identified the appellant earlier to the day he was deposing in court and that he could not know that it was this appellant Shambhu Pandey. Thus, the evidence of P.W.1 appears suspect as regards the identity of the real culprit. The identity of the real culprit was not established. The evidence appears rather of no value and there - 5 - is no definite identity established from it of the appellant as the man who had created the pandemonium at the railway station or who had committed the offence. 6. In the light of the discussion of the evidence of P.W.1 it appears of no consequence whether the informant had any injury or had some serious injuries. He was hit definitely as may appear from the evidence of P.W.3 Dr. Anil Chandra Sinha, but the issue which could finally justify the passing of the judgement of conviction could be whether the identify of the appellant was duly established; I have already noted that it had not been. 7. In the result, the appeal is allowed finding the judgement and order of conviction erroneously passed on an incorrect appraisal of the evidence. The appellant is acquitted. He is on bail. He shall stand discharged from the liabilities of his bail bond. Patna High Court Dated the 3rd of March, 2009 NAFR/B.Kr. ( Dharnidhar Jha, J. )