Judgment O.N.Asthana, J. 1. These two Criminal Appeals have been filed against the judgment and order of 2nd Additional Sessions Judge. Bhagalpur dated 12th May, 1988 in sessions trial No. 356 of 1979 wherein the trial judge held the accused appellant Bishundeo Yodav guilty for the commission of offence punishable under Sec. 307 and held the accused-appellants Jagdish Yadav and Chunchun Yadav guilty for the commission of the offence punishable under Sec. 307 read with Sec. 109 L P.C., and awarded the accused-appellant Bishundeo Yadav a sentence of six years rigorous imprisonment, and awarded the accused-appellants Jagdish yadav and Chunchun Yadav each a sentence of four years rigorous imprisonment. 2. According to the prosecution case Bodh Narain alias Pramod son of Bhola Prasad-injured P.W. 4 and Usha Devi, daughter of the accused Jagdish Yadav were in love with each other, and Jagdish Yadav instituted a case of kidnapping of her daughter against Samful Prasad-injured P.W. 3 and others; that the area police recovered Usha Devi and brought her to the Police Station in the afternoon on 8th September, 1978; knowing it Samful Prasad Singh P.W. 3, Bhola Prasad Singh, P.W. 4, Ratnesh Singh P.W. 6, Gokul Singh, P.W. 5 and Jiwan Prasad Singh, P.W. 1 arrived at the Police Station in the evening at 5 P.M. or about, and they saw that the accused Jagdish Yadav and Chunchun Yadav (father and uncle of Usha Devi) were talking with Usha Devi, and later both these accused persons talked with the Homeguard Constable Bishundeo Yadav ; the Homeguard Constable Bishundeo Yadav asked Samful Prasad and others to arrange the returning of the girl Usha Devi to her father; Samful Prasad and the familymen of Bodh Narain @ Pramod told Bishundeo Yadav that the girl Usha Devi was now in their family and, therefore, there was no question of her return. 3. 3. As the dark hours of the night were there, all these six persons, namely, Jiwan Prasad P.W. 1, Miteshwar Rai, P.W. 2, Samful Prasad-injured P.W. 3, Bhola Prasad Singh-injured P.W. 4, Gokul Singh, P.W. 5 and Ratnesar Prasad Singh-injured P.W. 6 happened to occupy the southern verandah of the Police Station building, where the light of electric bulb of the adjacent temple within the compound of the Police Station was giving light; and they saw that the accused Jagdish Yadav and Chunchun yadav were talking with the Constable Bishundeo at 12 in the night; that all these six persons were lying in the Verandah but they were not in full sleep, and at about 1.30 A.M. in the night they saw that the accused Jagdish Yadav and Chunchun Yadav again talked to Homeguard Constable Bishundeo Yadav who was on duty inside the Police Station. All these accused persons Jagdish Yadav and Chunchun Yadav asked the Homeguard Constable Bishundeo Yadav to open fire on them who were lying in the southern Verandah of the Police Station; the accused Bishundeo Yadav opened four rounds fire and his fired bullets caused fatal injuries on Samful Prasad, Bhola Prasad and Ratnesar Prasad; the accused Chunchun Yadav and Jagdish Yadav fled away from the compound of the Police Station; hearing the sound of firing the Homeguard Constable Bir Bahadur Singh informed P.W. 8 who was sleeping in the eastern verandah of the Police Station got up and rushed towards the temple, and he was this Constable Homeguard accused Bishundeo Yadav firing from his rifle on the persons who were lying in the southern verandah. 4. Lal Babu Choudhary, P.W. 10, Incharge of the Police Station was sleeping at his residence twenty-five yards away and hearing the sound of the fire shot he came inside the Police Station and he found Bhola Prasad Singh, Samful Prasad Singh and Ratnesar Prasad Singh lying injured with fire-arm injuries on their bodies in the verandah of the Police Station. He also found Homeguard Bishundeo Yadav there, and this Bishundeo Yadav was on night duty inside the Police Station. 5. He also found Homeguard Bishundeo Yadav there, and this Bishundeo Yadav was on night duty inside the Police Station. 5. Thakur Das, P.W. 9, Police Sub-Inspector of the Police Station came out from his residential quarter hearing the sound of the firing and he rushed towards the verandah of the Police Station and he found that three persons Samful Prasad Singh, Bhola Prasad Singh and Ratnesar Singh were lying injured in the southern verandah of the Police Station. He also found that Homeguard Constable Bishundeo Yadav was holding his service rifle and was there nearby in the south of that verandah. 6. The injured persons were not in a position to speak. They were sent to Bhagalpur Hospital for medical examination and for medical treatment. 7. Bir Bahadur Singh, Constable P.W. 8 gave the report which was taken down at the Police Station Exhibit-2 by Thakur Das P.W. 9. 8. According to the prosecution case this accused Bishundeo Yadav opened fire intentionally and attempted to murder on the abetment of the accused Chunchun Yadav and Jagdish Yadav. 9. All these three injured persons were examined by Dr. Ambika Prasad at Bhagalpur Hospital on 9th September, 1978. The injury memoes are Exhibits 1 to 1/2. 10. The following injuries were found Ratan Singh had the following injuries: (i) Circular lacerated injury over the lateral side of the left thigh in upper part of 1/ 3" diameter entry. (ii) Lacerated injury over the left gluteal region 3" x 3" bone deep with fracture of greater trochanter of left femur-exit. (iii) Lacerated wound over the medial side of left wrist 1" x 1/4" x 1/4" X-ray of left thigh showed fracture of greater trochanter of left femur. Samful Singh had the following Injuries: (i) Compound fracture of the left thigh with multiple lacerated wound over the back of thigh size for 1/3" diameter to 1/2" diameter, (ii) Lacerated wound, over the front of left thigh 4" x 3" x fracture femur deep. X-ray of left thigh showed fracture of femur with multiple metallic shadow. (iii) Lacerated injury over the right index finger 1/2" x 1/4" x 1/4". (iv) Lacerated injury over the back of the right side of chest 3" x 2" x 3". X-ray showed fracture of the scapula of right 2nd, 3rd, 4th and 5th ribs with metallic opacity in the right side of the chest. (iii) Lacerated injury over the right index finger 1/2" x 1/4" x 1/4". (iv) Lacerated injury over the back of the right side of chest 3" x 2" x 3". X-ray showed fracture of the scapula of right 2nd, 3rd, 4th and 5th ribs with metallic opacity in the right side of the chest. Bhola Singh had the following injuries: (i) Compound fracture of left leg with lacerated wound over the front of its 5" x 4" x bone fracture deep. X-ray showed multiple splinters shadow with fracture of Tibia and Fibia, (ii) Lacerated injury over the front of right leg 11/2" x 1/2 x 1/2. (iii) Lacerated injury on the medial side of right thigh 1/4" x 1/4". X-ray of right leg and thigh shows multiple splinters. 11. Injuries No. 1 and 2 of Ratan Singh were found grievous. Injuries No. 1,2 and 4 of Samful Singh were found grievous. Injury No. 1 of Bhola Singh was found grievous by the Doctor. This Doctor Ambika Prasad, P.W. 7, expressed his opinion in cross-examination that all the injuries of Bhola Singh could be possible if one fires from his fire-arm at the time of struggle. 12. Constable Bir Bahadur Singh P.W. 8 gave his statement to the Police Officer Thakur Das at 2 A.M. that he was helping hand in the night duty from 12 A.M. to 4 A.M. and he was sleeping in the eastern verandah of the Police Station and hearing the fire-arm shooting sound at 1.30 A.M. or about he was awake and he rushed to the southern verandah by the side of the temple and he saw that the person in uniform was firing from his rifle and two rounds were fired by him on the persons who were sleeping in the southern verandah, and the persons lying in the verandah started crying due to their injuries and he saw that this shooter Homeguard Constable Bishundeo Yadav holding rifle had gone at the verandah and other Police Constable and Police Officers of the Police Station arrived there, and he did not see any person running away from the place of occurrence or from the compound of the Police Station. This informant mentioned in the report further that the firing was carried by the Homeguard Constable Bishundeo for an attempt to commit murder--F.I.R. Exhibit-2. 13. This informant mentioned in the report further that the firing was carried by the Homeguard Constable Bishundeo for an attempt to commit murder--F.I.R. Exhibit-2. 13. Thakur Das, Police Sub-Inspector P.W. 9 (Investigation Officer) was sleeping in his quarter situated in the west of the Police Station and hearing the sound of firing he came to the southern side inside the compound of the Police Station and he saw that three persons were lying injured in the southern verandah and the Homeguard Constable Bishundeo Yadav was standing in the south of that verandah holding service rifle in his hand and Constable Bir Bahadur Singh was also there. As the injured persons were not in health enough to utter any word, they were sent immediately to the State Hospital, Banka for medical examination and treatment. The Doctor at Banka told that the condition of these injured persons was serious and they were immediately shifted to District Hospital, Bhagalpur. Bir Bahadur Singh, Constable gave the narration of the occurrence whatever he saw to Thakur Das, and this narration was taken down in writing and Constable Bir Bahadur Singh after hearing the contents of his report and finding them correct put his signature and this report is Exhibit-2. Thereafter Thakur Das started investigation in the case. He recorded the statement of the Constables and the Police Officers of the Police Station. During his inspection of the site he found this southern verandah of the Police Station was nine feet wide and thirty six feet long (east-west), where he found the three injured persons were lying. He found the electric bulb was giving light at Shiv temple situate hardly thirty feet away and it was giving light on the southern side in the compound of the Police Station. He found that four empty cartridges of 303 rifle bullets were lying at a distance of four feet from the stair case of his southern verandah. He found the physical marks caused due to the hit of the fired bullets on the floor and as well on the wall of the verandah. He found ample fresh blood in this verandah which oozed out from the wounds of the three injured person. He prepared the seizure list collecting four empty cartridges and the blood-stained clothes of the injured. He arrested the accused Bishundeo Yadav and seized his rifle. He found ample fresh blood in this verandah which oozed out from the wounds of the three injured person. He prepared the seizure list collecting four empty cartridges and the blood-stained clothes of the injured. He arrested the accused Bishundeo Yadav and seized his rifle. He found that the accused Bishundeo was waring a metal bangle in his wrist of the right hand and he was also keeping a Chhura with him. The seized rifle seized from the accused Bishundeo Yadav and its barrel was giving smell of gun powder. He looked into the station diary entries of his Police Station and he also found that the girl was recovered and brought to the Police Station a day earlier in the evening he sent the rifle with empty cartridges as well to the Police Sergeant Major for his report. 14. Lal Bahadur Chaudhary, P.W. 10, Incharge Police Officer was sleeping at his residence twenty five yards away from the Police Station; and hearing the fire sound and noise and cries he came to the Police Station and he saw that three persons were lying injured and in pool of blood inside the southern verandah of the Police Station, and he found that physical marks of the striking of the fired bullets were there on the floor of the verandah and on the wall of the verandah. He also found Homeguard Constable Bishundeo Yadav there. The injured persons were Samful, Bhola and Ratan Singh and as they were grievously hurt and in much uneasy condition they were sent immediately to the Hospital. 15. Lal Bahadur Chaudhary P.W. 10 stated in cross-examination when he inquired about the occurrence from Bishundeo Yadav he told him that some persons was snatching his rifle and gave him slap and that is why he fired four rounds of his rifle, and he found this version narrated by Bishundeo Yadav to be a totally false pretext, and that is why no case was registered on this statement of Bishundeo Yadav. This witness stated that he did not notice any mark of injury on his person. 16. Thakur Das, P.W. 9 stated in cross-examination that he saw that blood was oozing out from a wound on the fore-head of Bishundeo Yadav. This witness stated that he did not notice any mark of injury on his person. 16. Thakur Das, P.W. 9 stated in cross-examination that he saw that blood was oozing out from a wound on the fore-head of Bishundeo Yadav. he stated that Bishundeo Yadav told him when he made inquiry that one of the persons who was sleeping in the southern verandah struggled with him in order to snatch his rifle and that man also gave a slap to him. 17. Jiwan Prasad, P.W. 1, a Police Officer, stated that he came to Banka Civil Court on 8th September, 1978 and he happened to meet Samful, Bhola and others who happened to be the distant relation, and he accompanied Bhola Singh, Samful Singh and others and arrived at Banka Police Station in the evening at 5 P.W. He stated that there he saw the accused Jagdish and Chunchun Yadav were talking to Homeguard Constable Bishundeo Yadav. This witness stated while he, Samful and others went to sleep in the southern verandah at 12.30 A.M. the Homeguard Constable Bishundeo Yadav holding his rifle was there on sentry duty on this southern side of the Police Station. He, stated that he saw that at 1 A.M. or about this Homeguard Constable Bishundeo Yadav fired four rounds from his rifle on the persons who were sleeping inside the verandah and the bullet fire injuries were caused to Samful Singh, Bhola Singh and Ratnesar Singh. This witness stated that the accused Chunchun Yadav and Jagdish Yadav were standing by the side of the accused Bishundeo Yadav, and while Bishundeo Yadav started firing Chunchun Yadav and Jagdish Yadav ran away from the compound of the Police Station. This witness was interrogated by the Police Officer after a month. He did not tell the Investigation Officer during his interrogation that the accused Chunchur Yadav and Jagdish Yadav were standing by the side of the accused Bishundeo Yadav when he started firing and they ran away. In cross-examination this witness stated that none of the injured persons was in a health to utter. Further this witness stated that after the firing of the shots Bishundeo Yadav lied on the ground and the grip on the rifle was loose. 18. Niteshwar Rai P.W. 2 was tendered by the prosecution. He is brother of Jiwan Prasad P.W. 1. 19. Further this witness stated that after the firing of the shots Bishundeo Yadav lied on the ground and the grip on the rifle was loose. 18. Niteshwar Rai P.W. 2 was tendered by the prosecution. He is brother of Jiwan Prasad P.W. 1. 19. Samful Prasad P.W. 3 stated that he was shown the accused in the report lodged by accused Jagdish Yadav relating the kidnapping of his daughter, and while that daughter Usha Devi was recovered and brought to the police Station he was anxious to keep a watch that her father Jagdish Yadav and her other family members would not poison her mind to implicate him an his other relations falsely in criminal charge. This witness stated that he along, with Bhola, Jiwan Prasad, Gokul, Ratnesar, Niteshwar and others reached the Police Station at 5 P.M. in the evening, and there he saw that the accused Jagdish Yadav and his brother Chunchun Yadav were talking to the daughter Usha Devi and also to the Homeguard Constable Bishundeo Yadav. He stated that the Homeguard Constable Bishundeo Yadav asked him to return the daughter Usha Devi to her parents, he stated that they took verbal permission from Station Officer Incharge and he along with Bhola Prasad, Jiwan Prasad, Gokul, Ratnesar, Niteshwar and others took rest in the southern verandah of the Police Station as the night hours had fallen. He said further that they lied down to sleep at 12 A.M. in the night, and he saw that the accused Jagdish Yadav and Chunchun Yadav had a talk with Bishundeo Yadav who was performing his sentry duty there on the southern side in the compound of the Police Station. This witness stated that he was not asleep and at about 12.30 A.M. in the night he saw that the accused Jagdish Yadav and Chunchun Yadav came again to Homeguard Constable Bishundeo Prasad Yadav and he uttered to the Homeguard Constable Bishundeo Yadav that he should shoot and what he was awaiting; and on this utterance the Homeguard Constable Bishundeo started firing with his rifle on him and his fellowmen who were lying in the verandah. This witness stated that with this firing both the accused Chunchun Yadav and Jagdish Yadav ran away. This witness stated that with this firing both the accused Chunchun Yadav and Jagdish Yadav ran away. He stated further that he, Bhola Prasad and Ratnesar Prasad were seriously injured due to this rifle shots and their injuries started bleeding, and as they were grievously hurt and were restless they could not utter about this occurrence to the Police Officers, and that they were sent for medical examination and treatment. In cross-examination this witness stated that Niteshwar Prasad P.W. 2 is the son-in-law of his cousin, and Jiwan Prasad P.W. 1 is the brother of Niteshwar Prasad P.W. 2. During his interrogation by the Police Officer he did not tell in his statement to the Investigation Officer that the accused Jagdish and Chunchun told the sentry on duty why he was watching and he should fire to kill and thus the sentry on duty (Homeguard Constable Bishundeo Yadav) started firing his rifle on him. 20. Bhola Prasad P.W. 4, father of the boy Pramod Singh who loved and married Usha Devi, was lying along with his maternal uncle Samful Singh and others in the southern verandah of the Police Station in that night. He stated that at 1.30 A.M. or about he heard the utterance MARO-MARO--fire and kill and he saw that the accused Jagdish and Chunchun were there by the side of the Homeguard Constable Bishundeo and this Homeguard Constable Bishundeo fired four rounds at him, Samful and Ratnesh Singh and they were injured. As they were bleeding profusedly and were restless, they were sent to the Hospital immediately. They were not in a health to utter and to lodge the report. This witness stated in cross-examination because this occurrence took place inside the Police Station, he did not like to lodge his report with the Police Officer. He stated that his statement was recorded by the Police Officer at the Hospital after fifteen days. The investigation Officer stated in the Court that this witness Bhola Prasad P.W. 4 told him that he saw Jagdish Yadav, Chunchun Yadav and Homeguard Constable Bishundeo Yadav together at 1.30 A.M. in the night but he did not tell the Investigation Officer that he heard the utterance Maro-Maro. 21. The investigation Officer stated in the Court that this witness Bhola Prasad P.W. 4 told him that he saw Jagdish Yadav, Chunchun Yadav and Homeguard Constable Bishundeo Yadav together at 1.30 A.M. in the night but he did not tell the Investigation Officer that he heard the utterance Maro-Maro. 21. Gokul Singh, P.W. 5 stated that he was there at the Police Station and he saw that Jagdish Yadav and Chunchun Yadav were talking to their daughter Usha Devi there as the Police Station, and they also talked to Homeguard Constable Bishundeo Yadav. He stated further that he met Samful Singh, Bhola Singh and others, and as the dark of the night was there he also slept in the southern verandah of the Police Station along with Samful Singh, Ratnesh Singh, Bhola Prasad, Jiwan Prasad and others. He Stated further that at about 1.30 A.M. the accused Bishundeo opened four rounds of fire causing injuries to Samful, Bhola Singh and Ratnesar Singh;the injured was removed to the Hospital by the Police Officer. he stated further that he was interrogated by the Police Officer after one and half months. 22. Ratnesar Prasad Singh, P.W. 6, nephew of Samful Singh stated that he came to Banka Police Station in the evening while Usha Devi was brought after her recovery by the Police Officers, and he stayed in the night at the Police Station along with his uncle Samful, Bhola, Jiwan, Gokul and others. He stated that in the evening he saw that Jagdish Yadav and Chunchun Yadav were talking with Homeguard Constable Bishundeo Yadav. This witness stated further that he was awake in the night, and he saw that Jagdish Yadav was talking to the accused Bishundeo and Jagdish Yadav uttered "MARO SALE KO" and on this utterance Bishundeo Yadav fired four rounds towards him and the persons who were lying in the southern verandah, and these shots of Bishundeo caused injuries to him, Samful and Bhola. This witness stated that all these three injured persons were not in a health to utter, and they were restless and they were immediately brought to the Hospital for medical treatment. He stated that he remained in the Hospital for one and half months and thereafter his statement was recorded by the Police Officer. This witness stated that all these three injured persons were not in a health to utter, and they were restless and they were immediately brought to the Hospital for medical treatment. He stated that he remained in the Hospital for one and half months and thereafter his statement was recorded by the Police Officer. In cross-examination this witness stated that with the permission of the Station Officer Incharge of the Police Station he, Samful, Bhola Prasad and others stayed and slept in the southern verandah of the Police Station as the dark hours of the night had fallen. 23. Learned Advocate for the appellants raised the contention that the prosecution witnesses were interrogated late and thus their depositions are not credible; that true version has not been given by the prosecution witnesses; that the defence version also finds support from the deposition of the Doctor and the deposition of the informant and that even if the prosecution case is taken to be true the charge under Section. 307, I.P.C. is not established against any of the accused persons. 24. of course the deposition of prosecution witnesses had been recorded late, there were sufficient reasons for it. None of the injured persons were in a health enough to make statement, and thus the investigation relating the recording of the statement of the witnesses was delayed. It was for the injured persons to tell specifically who were other persons lying in the southern verandah of the Police Station along with them. Thus, the alleged delay in recording the statement of the prosecution witnesses cannot be taken to be fatal so as to discredit the testimony of the prosecution witnesses, 25. Advocate for the appellants pointed out that the prosecution witnesses 3 to 6 were interested witnesses as they are related to each other and thus their depositions be examined cautiously. It may be taken note that none of these prosecution witnesses had any animus against any of these accused-appellants. It was natural for them to be there at the Police Station in the evening as the daughter Usha Devi was recovered and brought to the Police Station and the anxiousness of the suspect of the Kidnapping case, namely, Samful Singh, P.W. 3, was that the daughter Usha Devi might not be tutored to charge him and his fellowmen falsely on the charge of kidnapping. A careful reading of this prosecution evidence shows that there is nothing to doubt their statements given in the Trial Court. Learned Advocate for the appellants Jagdish Yadav and Chunchun Yadav urged that the depositions of these prosecution witnesses might be taken to prove that Jagdish Yadav, father of Usha Devi and - Chunchun Yadav, uncle of Usha Devi came to the Police Station in the evening and talked to their daughter Usha Devi and they would have talked with the Homeguard Constable Bishundeo Yadav, but it is very doubtful if Jagdish Yadav and Chunchun Yadav were there with Bishundeo Yadav in the dead of night between 12 and 1.30 A.M. and Jagdish Yadav and Chunchun Yadav incited Homeguard Constable Bishundeo Yadav to commit murder of Samful Singh, Bhola Singh and others. In this connection, the attention has been drawn that Jiwan P.W. 1 and Samful P.W. 3 did not tell the Investigation officer during investigation that Jagdish Yadav and Chunchun Yadav talked to Bishundeo Yadav at about 1.30 A.M. in the night and they were by the side of Bishundeo Yadav while he fired with his rifle. The attention has also been drawn to the statement of Bhola Prasad, P.W. 4, who did not tell the Investigation Officer that he heard the utterance Maro-Maro in his statement during investigation. This shows that this witness Bhola Prasad made exaggerated statement in the Court on oath to involve Chunchun Yadav and Jagdish Yadav on the charge of abetment of the crime. 26. I find that the charge of abetment of attempt of murder against Jagdish Yadav and Chunchun Yadav that they were seen along with accused Bishundeo Yadav at 1.30 A.M. in the night and they incited Bishundeo Yadav uttering that he should commit the murder is not proved beyond doubt. 27. Advocate for the accused-appellant Bishundeo Yadav urged that the deposition of the informant Bir Bahadur Singh, P.W. 8, shows that this accused-appellant Bishundeo Yadav had an injury on his forehead and he was in a disturbed condition and that he became unconscious; and that the Investigation Office Thakur Das, P.W. 9, too stated that he noted an injury with oozing of blood on the forehead of accused Bishundeo.Yadav and this statement supports the defence version. 28. 28. The defence has been suggested to the prosecution witnesses that these persons who were lying in the southern verandah formed an unlawful assembly and were snatching the rifle of this accused-appellant Bishundeo Yadav and the caused injury to Bishundeo Yadav and apprehending that the rifle would be snatched this accused-appellant fired four rounds from his rifle and accidently these fires caused hurt. This suggestion seems inherently improbable. There was no motive for any of these persons lying in the verandah to snatch the rifle of the Homeguard Constable Bishundeo Yadav and that too inside the compound of the Police Station. The suggestion has been that this accused-appellant Bishundeo Yadav was slaped once by one of the snatchers. This slap by hand would not be giving bleeding injury to the accused-appellant. Being in service as Homeguard Constable and thus worldly wise and finding that the Police officials and the Officers were arriving this Homeguard Constable Bishundeo Yadav himself caused bleeding injury on his forehead with the assistance of his metal bangle on his wrist and himself fell down on the ground posing he was unconscious. 29. The accused-appellant examined Abhinay Paswan D.W. 1, in defence. This witness has stated that after the performance of his duty at the Police Station he was taking rest in the western verandah, and at 1.30 A.M. he heard the sound of firing and he arrived on the southern side, and he saw four to five persons (outsiders) were snatching the rifle from Bishundeo and in this process the irfle of Bishundeo went in air and all the four bullets of the rifle got fired and accidently the injuries were caused to the persons lying in the southern verandah. The deposition of this witness Abhinay Paswan, a Homeguard Constable is a different one when he stated that certain outsiders were snatching the rifle of Bishundeo. There were other Constables on duty inside the compound of the Police Station and at least one of them was well armed. Had the outsiders been there the Police Constable of the Police Station would have rushed and actively helped this Homeguard Constable Bishundeo Yadav who was on sentry duty as well. This witness admitted in cross-examination that he did not tell the Assistant Superintendent of Police who arrived there at the Police Station soon that some outsiders were struggling to snatch the rifle of Bishundeo. This witness admitted in cross-examination that he did not tell the Assistant Superintendent of Police who arrived there at the Police Station soon that some outsiders were struggling to snatch the rifle of Bishundeo. This witness did not give in writing and thus did not lodge any such report. The deposition of Abhinay Paswan, D.W. 1, does not inspite least confidence 30. The objective findings of the Investigation Officer that all the three injured persons were found lying injured in the southern verandah; that physical sings of the hit of the bullets were found on the floor and the inner wall of the southern verandah and the four empty cartridges of the rifle bullets were found by the side of the stair to the verandah establish the prosecution case. 31. Considering the prosecution evidence and the objective findings of the Investigation Officer, it is established fully that the prosecution party did not agree to the suggestion of this Homeguard Constable Bishundeo Yadav that Usha Devi should go back to her parents and live with her parents and thus being annoyed this Homeguard Constable Bishundeo Yadav happened to fire at the members of the prosecution party in the dead of night who were lying down and were either awake or half asleep. 32. The prosecution evidence establishes the charge against his accused- appellant Bishundeo Yadav for the commission of the Offence under Sec. 326, 1.P.C., and not the charge of attempt to murder under Sec. 307 I.P.C. 33. The accused-appellant Bishundeo Yadav is held guilty for the commission of the offence punishable under Sec. 326, I.P.C, and thus he is awarded the sentence of five years rigorous imprisonment. 34. The benefit of doubt is awarded to the accused-appellants Jagdish Yadav and Chunchun Yadav and thus they stand acquitted. Accordingly Criminal Appeal No. 193 of 1988 stands allowed. The bail bonds of Jagdish Yadav and Chunchun Yadav given in pursuance of the order of this Court stands discharged. 35. Accused-appellant Bishundeo Yadav of Criminal Appeal No. 186 of 1988 is found guilty for the commission of the offence punishable under Sec. 326, I.P.C. and he is awarded the sentence of five ears rigorous imprisonment. 36. Accordingly the judgment and order of the Trial Court stands modified in these appeals. The conviction under Sec. 307, I.P.C, and the award of the sentence in pursuance of the same stands set aside. 37. 36. Accordingly the judgment and order of the Trial Court stands modified in these appeals. The conviction under Sec. 307, I.P.C, and the award of the sentence in pursuance of the same stands set aside. 37. The bail bonds of the accused Bishundeo Yadav in pursuance of the order of this Court, dated 20th May, 1988 stand cancelled the Trial Court shall be sending warrant to arrest the accused-appellant Bishundeo Yadav and shall lodge Bishundeo Yadav in jail to undergo the sentence awarded by this Court. Let a copy of this judgment be sent to the Trial Court for necessary compliance