Criminal Appeal (S.J.) No. 323 0f 1997 (Appeal against the Judgment and Order dated 8.12.1997 passed by the 2nd Additional Sessions Judge, Ara, Bhojpur, in Sessions Trial No. 116 of 1994.) ------------ 1. ISLAMUDDIN KHAN 2. KAYAMUDDIN KHAN BOTH SONS OF LATE WAHID KHAN, RESIDENT OF VILLAGE CHITRASENPUR, P.S. ARA, MUFASSIL, DISTT. BHOJPUR. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. -------- For the Appellant : Mr. Pushkar Narain Shahi, Adv. Mr. Patanjali Rishi, Adv. For the State : Mr. Choubey Jawahar, A.P.P. -------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellant No. 1 has been convicted under Section 307/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to seven years and two years respectively whereas Appellant No. 2 has been convicted under Section 307/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to rigorous imprisonment for 3 years and seven years respectively by the 2nd Additional Sessions Judge, Ara Bhojpur, in Sessions Trial No. 116 of 1994 by a Judgment dated 8.12.1997. 2. The case of the prosecution according to the Informant Firoz Khan, now dead, is that on 19.8.1993 while he was sitting at his door, he saw the Appellant No. 1 was going through that way on a Jeep at which he told him to drive slowly since drain was not concrete. The Appellant No. 1 did not like it and started hurling dirty abuses on the Informant and went towards his house. After sometime, both the Appellants came with guns and Appellant No. 2 fired twice at the Patna High Court CR. APP (SJ) No.323 of 1997 dt.19-07-2011 2 Informant, but, the shot missed him. After firing, the accused persons went away on their Jeep. 3. During trial, the prosecution examined four witnesses out of whom PW-4 Rameshwar Paswan who was the Investigating Officer whereas PW-1 Mahzabeen, PW-2 Israil Khan and PW-3 Ismail Khan are the alleged eye witnesses. PW-1 has stated that while she was at her door along with Firoz, she saw both the accused coming on a Jeep, at which Firoz told them to drive slowly which led an exchange of abuses. A little later, the accused persons came armed with guns and the Appellant No. 2 fired two shots towards Firoz but he escaped unhurt. PW-2 Israil Khan also stated that in the morning of 19.8.1993, the accused persons came on a Jeep, while Firoz was on the roof and asked Firoz to keep quite otherwise they will kill him which led to quarrel and both the accused persons brought guns from their houses and the Appellant No. 2 shot at him causing a hole mark in the wall. However, the Informant escaped unhurt. PW-3 Ismail Khan stated that on the date of occurrence, Firoz chastised the two accused persons for driving fast in their lane which led to an exchange of abuses and a little later, the accused persons armed with guns and fired at Firoz which did not hit him. P.W-4, Investigating Officer, found objective evidence of the occurrence since he found mark of violence like hole in upper wall of the Informant’s house. This supports the ocular evidence of PW-1, PW-2 and PW-3. 4. On going through the evidence of at least four witnesses, there is no manner of doubt that the Appellant No. 2 had fired at the Informant which did not hit him. However, it is difficult to conclude positively that the intention of the Appellants was to cause the death of the Informant. From the manner depicted, it appears that the Appellants had merely wanted to demonstrate their strength to quell any dissent from the Informant. Patna High Court CR. APP (SJ) No.323 of 1997 dt.19-07-2011 3 5. Under these circumstances, the conviction of the Appellants under Section 307 and 307/34 of the Indian Penal Code is hereby set aside. Since the witnesses have consistently stated that both the accused persons had fire arms in their hands and the Appellant No. 2 had fired at the Informant to which there was objective corroboration, I am not inclined to interfere with the conviction of the Appellants under Section 27 of the Arms Act. 6. In the result, the Appeal is dismissed with the modification in conviction as mentioned above and also modification in sentence to the period that has already undergone by them during trial. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 19th July, 2011. NAFR/S.ALI.