Judgment : ( 1 ) ALL the five appellants stand convicted under Sections 147, 307 and 149 of the Indian Penal Code and 3/4 of the Explosive Substances Act and sentenced to undergo R. I. for five years for the offences under Sections 307 and 149,1. P. C. and to pay a fine of Rs. 5. 000/- each and in default, to serve R. I. for one year and further sentenced to serve R. I. for one year each under Section 147, I. P. C. and R. I. for three years under Sections 3/4 of the Explosive substances Act by the 1st Additional sessions Judge, Deoghar vide judgment dated 1-8-2000, passed in S. T. Case No. 319 of 1994. ( 2 ) BRIEF facts leading to this Appeal are that in the morning of 20th October, 1991, the informant, Duryodhan Rana, was irrigating his field situated in Mauza-Badpur, with the water diverted from Manikpur bandh. According to him, the appellants along with two others came and asked to stop it, otherwise he may be killed. Further stated when the informant did not stop irrigating, they started abusing and threatening him, on which the informant began to run for his life. However, in the meantime, the appellants Nuneshwar Mahto and Bam shankar Mahto brought gun and pistol from their houses, while Suresh Mahto brought country-made bombs in a bag. According to the informant, when he reached near the small Pulia between Mauza Manikpur and mushardih, accused Bam Shankar fired from his country-made pistol, resulting in bullet injury upon his chin. However, informant continued to run towards his house and reached near Manikpur Durga Mandap, where villagers and other witnesses assembled. At this place, Bam Shankar again opened fire from his country-made pistol, hitting Triloki Sharma. During this, the appellant Nuneshwar Mahto also opened fire from his licensed gun but it did not hit anyone. According to the informant, Suresh mahto threw country-made bombs near the house of Bhagwan Sharma and Bandhu sharma, other accused persons started throwing brick and stones etc. , resulting bleeding injury on Vishwanath Sharma. The informant along with other-injured persons reached Jasidih Police Station same day i. e. on 20th October, 1991, where his statement was recorded by Jasidih Police. According to the informant, Suresh mahto threw country-made bombs near the house of Bhagwan Sharma and Bandhu sharma, other accused persons started throwing brick and stones etc. , resulting bleeding injury on Vishwanath Sharma. The informant along with other-injured persons reached Jasidih Police Station same day i. e. on 20th October, 1991, where his statement was recorded by Jasidih Police. On that basis, jasidih P. S. Case No. 203 of 1991 was registered under Sections 147, 148, 149, 326, 323, 341, 337, I. P. C. and 27 of the Arms act as well as under Section 3/4 of the Explosive Substances Act. ( 3 ) THE matter was investigated by the police and finally charge-sheet was submitted against six accused persons, showing four accused persons as absconder. The case was committed to the Court of Session for trial and all the accused persons were charged for the offence under Sections 147, 307/49, I. P. C. and under Sections 3/4 of the Explosive Substances Act by learned a. D. J. I. , Deoghar. All the accused persons were further charged under Section 337, i. P. C. but no charge was framed under sections 27 of the Arms Act. The accused persons pleaded not guilty and claimed false prosecution due to dispute of rights to irrigate from Manikpur Bandh as well as previous disputes between the prosecution party and the accused persons. The learned trial court after examining the witnesses held the appellants guilty for the offences and sentenced them separately for each offence, as mentioned above. ( 4 ) THIS memorandum of appeal has been preferred on the ground that the learned lower Court has committed error of law and facts. It is further asserted that there are material contradictions in the evidences of the eye-witnesses, injured witnesses and probable witnesses, examined in this case. It is also asserted that the medical evidence does not support the version of the prosecution and thus, not reliable. The other ground, as mentioned, is that the injuries found on the person of the prosecution party are not dangerous in nature and they cannot be said to have been caused by firearms, in absence of production of bullets or pellets before the lower Court. The other ground, as mentioned, is that the injuries found on the person of the prosecution party are not dangerous in nature and they cannot be said to have been caused by firearms, in absence of production of bullets or pellets before the lower Court. It is also asserted that there is no iota of evidence to prove that bomb was exploded at the P. O. It is also asserted that the witnesses have contradicted themselves on the material grounds and have improved their earlier version, causing doubt in the prosecution case. It is also asserted that the P. O. has been changed by the witnesses and the manner of occurrence becomes doubtful as each witness has given different version. Learned counsel further submitted that in case, the prosecution story is believed, the sentence passed by the lower court are unreasonably high. According to the learned counsel, the injuries found on the person of Duryodhan Rana, Triloki sharma and Vishwanath Sharma may be sufficiently covered under Sections 323/ 324, I. P. C. ( 5 ) LEARNED A. P. P. opposed this contention on the grounds that as per the prosecution story, informant was chased and bombs were thrown with intention to cause death, which has been positively proved by the eye-witnesses and objective evidence of the I. O. As such, the appellants were rightly convicted and sentenced to serve appropriate punishment. ( 6 ) I have carefully gone through the evidence available on record along with argument advanced by Mr. Rana Pratap Singh, learned Senior Counsel appearing for the appellants. According to the learned counsel mr. Singh, the entire prosecution story deserves rigorous scrutiny, in the facts of the case, where P. O. itself has been changed in the Court by the witnesses. Mr. Singh drew my attention towards the Fard Beyan, in which it is said that the fire took place near Pulia and P. W. 10 in his evidence has also mentioned it as the first P. O. However, p. W. 1, Kashi Rana, the brother of the informant, duryodhan Rana asserted in his examination-in-chief vide Para. 2 that after objecting and threatening, the appellants again, came back, armed variously and fired upon from his country-made pistol, hitting duryodhan Rana on his chin. Mr. 2 that after objecting and threatening, the appellants again, came back, armed variously and fired upon from his country-made pistol, hitting duryodhan Rana on his chin. Mr. Singh pointed out that with this version, the P. O. is now shifted to the field as this witness has further asserted that after getting hit on chin, he along with injured ran for their life and reached near the Durga Mandap. There is no dispute that according to the fard Beyan, the first firing took place on the kachchi Road near Pulia, adjacent to the fields, wherein, irrigation took place. It has also mentioned that the second P. O. was the durga Mandap where second firing took place hitting Triloki Sharma, P. W. 7 on hand and Brick/stones are said to have been thrown. My attention was drawn that in such circumstances, where P. O. is being shifted prosecution story deserves to be disbelieved. On careful scrutiny of the evidence of P. W. 7 and P. W. 8 Triloki Sharma and Duryodhan rana, it appears that P. W. 7 saw for the first time that near Durga Mandap, P. W. 1 and p. W. 3 were bringing P. W. 8 towards the village and they informed him that P. W. 8 was hit with bullet. ( 7 ) P. W. 8, the informant further makes improved version in para. 2 of his statement, that seeing the appellant Bam Shankar coming to assault him, he tried to run away, during which, he received bullet injury on his chin and thereafter he was brought towards durga Mandap with the help of P. W. 1 and P. W. 3. There appears to be change of version regarding the P. O. and the I. O. during investigation has fixed first P. O. i. e. Pulia. It was pointed out that the entire prosecution story appears to be concocted by interested witnesses, who are of two families. P. W. 3, P. W. 5, P. W. 6 and P. W. 7, Birbal Sharma, bishwanath Maraiya, Kamdeo Sharma and triloki Sharma while remaining two, P. W. 1, Kashi Rana and Duryodhan Rana are brothers. ( 8 ) FROM perusal of the records it appears that P. W. 2, is a seizure list witness, P. W. 4 has formally proved the F. I. R: (Exhibit-2) and seizure list exhibit 1. ( 8 ) FROM perusal of the records it appears that P. W. 2, is a seizure list witness, P. W. 4 has formally proved the F. I. R: (Exhibit-2) and seizure list exhibit 1. P. W. 11 has formally proved the carbon copy of the letter to the d. C. , Deoghar as exhibits-6 and 7 series. P. W. 12 has proved the signature of the I. O. on Exhibit-9. P. W. 9 is the medical officer, who examined P. Ws. 5 and 8 on 20th October, 1991. According to the Exhibit 3 and exhibit 3/1, he found circular wound on the right elbow of Triloki Sharma and in the X-ray plate of the injury, he found shadow of bullet. Similarly he mentioned by Exhibit 3/1, that a lacerated wound was found below the chin on Duryodhan Rana with X-ray plate, showing the shadow of bullet. However, no such X-ray plates have been produced by the prosecution, although it is said that X-ray was performed by Dr. N. M. Sharma of the same place. Learned counsel for the appellants criticized this injury report by the Doctor showing injury on duryodhan Rana dangerous and giving opinion that such injuries were caused by countrymade pistols. It is further pointed out that the bullets though seized and handed over to the Police, have not been produced in the Court below. The nature of injuries caused by the bullet being shown to be simple in nature, have been criticized. Learned counsel further pointed out that even with the injury on the chin of duryodhan Rana, caused by bullet, he was found conscious, without immediate danger to his life. As such, the report of the Medical officer, opining that such injuries were sufficient to constitute the offence under section 307, I. P. C. is not worthy of credence. These reports require to be considered in context with the evidence of the I. O. , P. W. 10. The I. O. , P. W. 10 has not been able to recover any firearms from the possession of the accused persons during investigation. However, the licensee gun of the appellant nuneshwar Mahto was seized for ballistic examination by Sergeant Major, Deoghar. The ballistic experts opinion as mentioned by the I. O. did not find that the gun was fired recently. However, the licensee gun of the appellant nuneshwar Mahto was seized for ballistic examination by Sergeant Major, Deoghar. The ballistic experts opinion as mentioned by the I. O. did not find that the gun was fired recently. The alleged remains of bombs exploded by Suresh Mahto though said to be sent for forensic examination have not been brought on record, therefore, the entire story of firing with fire arm and explosion of bombs becomes doubtful. ( 9 ) ACCORDING to the learned counsel for the appellants, the prosecution has not been able to pinpoint the place of occurrence and further the manner in which the alleged assault took place right from the field to Durga mandap at Manikpur. Shri Singh, further pointed out that since the genesis of the occurrence was dispute for irrigating fields, p. O. should have been the field, where even duryodhan Rana was allegedly shot by the appellant, Bam Shankar vide paragraph 2 of the P. W. 1. Shri Singh further pointed out that according to the injured, P. W. 8, he was hit with bullet while he was running away from the field and has reached near Pulia between Mauza Mushardih and Manikpur. Learned counsel further pointed out that the i. O. has also mentioned vide paragraph 2 of his examination-in-chief that the first P. O. was situated 25 yards west of the Pulia from where Mushardih was situated at 700 yards and Manikpur at 1500 yards. It was, accordingly, suggested that if this is believed, none of the witnesses would be in a position to witness actually the assault taking place on duryodhan Rana. My attention was further drawn towards the fact that according to p. W. 6, he saw P. W. 8 limping back towards manikpur Durga Mandap, which is admittedly at a distance of 1 and half kilometers, where the alleged second attempt was made by the assailants. Therefore, the place of occurrence is admittedly spread over from the field to Manikpur Durga Mandap, an area of two kilometers. ( 10 ) IN this context, my attention was further drawn towards para. 11 of P. W. 1, where it is asserted that Moti Mahto brought gun and the bag containing bombs along with one Bhujali and distributed them to different assailants. ( 10 ) IN this context, my attention was further drawn towards para. 11 of P. W. 1, where it is asserted that Moti Mahto brought gun and the bag containing bombs along with one Bhujali and distributed them to different assailants. This witness has stated vide paragraph 12 that Durga Mandap was situated at about 300 to 400 yards and first assault took place just when they started to run towards Durga Mandap. Therefore, there is a complete distortion of facts and the P. O. may not be ascertained. Learned counsel further pointed out that the manner of assault is also doubtful when different versions are given by different witnesses. Somebody says that free brick-batting took place and fire arms were used but none accepts p. W. 5, P. W. 7 and P. W. 8 got injuries. Learned counsel further pointed out that while the Doctor has not examined injuries on P. W. 5, the injuries on P. W. 7 and P. W. 8 are said to be caused by firearms, apparently not supported by any material on record. Mr. Singh pointed out that if actually the bullet had hit the right fore arm of p. W. 7, the wound have caused either fractured of bones or bleeding injury. Similarly the chin injury on P. W. 8, could not have burnt margins or black margins as found by the Doctor. It is further pointed out that in both the cases, Doctor has stated that shadow of bullet was seen in X-ray plates, which is not available on the records. In any case, if the bullet was fired from distance and it got stuck up in the body, the entry injury of the bullets must have resulted in bleeding injuries. As such, the story of fire from pistol causing injuries on P. W. 7 and p. W. 8 becomes doubtful. ( 11 ) THE senior counsel further drew my attention towards admitted facts on records that long-standing dispute was going on between the prosecution party and the appellants regarding rights of irrigation from Manikpur Bandh and different proceedings under Sections 107, 144, 145, Cr. P. C. preceded the present occurrence. In this context, learned counsel went through the statement of P. W. 1 vide paras. 8 and 9, P. W. 3 vide paras. 3 and 7. P. W. 5 vide para. 15. P. W. 6 vide paras. P. C. preceded the present occurrence. In this context, learned counsel went through the statement of P. W. 1 vide paras. 8 and 9, P. W. 3 vide paras. 3 and 7. P. W. 5 vide para. 15. P. W. 6 vide paras. 8, 9 and 10, P. W. 7 vide para. 9. It was further pointed out that the injured persons and other witnesses of prosecution were not worthy of credit because they were involved in a number of criminal cases. Lastly, the learned counsel submitted that the parties have now finally resolved their dispute and filed an affidavit signed by Duryodhan Rana and Bam Shankar mahto available on the record before this court on 19th April, 2004, which may be also considered. ( 12 ) I have carefully gone through the evidence available on record and the impugned judgment convicting the appellants. From perusal of the materials available on record, it is apparent that the alleged occurrence took place for disputed rights to irrigate field from some Bandh situated in the field. It is also apparent that altercation on the point of irrigation started. According to the prosecution, during this occurrence, firearms were used, hitting P. W. 8 on his chin and p. W. 7 on the forearms. The so-called bullet injuries were examined by P. W. 9, the doctor, who found the shadow of bullets present in the wounds on the basis of X-ray plates, which are missing from the records. The opinion of the Doctor that the injuries bore black margin and burnt margins on the body of witness does not tally with the evidence of P. Ws. , who say that firearms were used from distance, then no black margins, or burnt marks could be possible on the injured. Furthermore the nature of the injuries is said to be simple on P. W. 7 and dangerous to life on P. W. 8 but the condition in which those witnesses were examined by the doctor makes it improbable. I further find that the prosecution version as stated before the Police vide Exhibit-2 has been later on improved by the witnesses, according to their choice. According to the Fard beyan, the first P. O. was in between Mauza mushardih and Manikpur near Pulia and second P. O. near Durga Mandap near manikpur. I further find that the prosecution version as stated before the Police vide Exhibit-2 has been later on improved by the witnesses, according to their choice. According to the Fard beyan, the first P. O. was in between Mauza mushardih and Manikpur near Pulia and second P. O. near Durga Mandap near manikpur. P. W. 1 has contradicted this P. O. by saying that Duryodhan Rana was fired upon when he is chased running towards manikpur and from there he was carried along with P. W. 3. These two witnesses have asserted that Duryodhan Rana fell down after being hit by bullet and both of them supported him to be carried towards manikpur. This has not been mentioned by p. W. 8 in the Fard Beyan. The second assault by firing upon Triloki Sharma is said to be when he came out,of the house near durga Mandap and fighting was going on. I further find that the injuries found on these two witnesses, P. W. 7 and P. W. 8, do not tally with the nature of injuries may be actually caused by the bullet from distance, as such, the prosecution story appears to be improved according to the fancy of the witnesses. ( 13 ) THIS fact has to be considered in the background that there was long-standing dispute over rights of irrigation between the prosecution party and the appellants. The evidence of the I. O. , P. W. 10 in this context is relevant, where he has admitted in cross-examination that much of the statements made by P. Ws. 1, 3. 6, 7 and 8 were not made before him when they were examined under Section 161, Cr. P. C. during investigation of the case. Therefore, there is lot of contradiction from the earlier statements and the statement made before the lower court by the injured witnesses vide paras. 10, 11, 12 and 13. ( 14 ) HAVING regards to the above mentioned facts and circumstances, and after consideration of the materials on records, I find that the prosecution could not establish in the present facts, the place of occurrence, the manner of assaults and finally that injuries found on P. Ws. 7 and 8 were caused with firearms. As such, the prosecution has failed to establish its allegations beyond all reasonable doubts. Thus the appellants deserve benefit of doubts. 7 and 8 were caused with firearms. As such, the prosecution has failed to establish its allegations beyond all reasonable doubts. Thus the appellants deserve benefit of doubts. ( 15 ) IN the result, I find that the present appeal has got merit in it and deserves to be allowed. Accordingly, the judgment dated 1-8-2000 holding the appellants guilty for various offences is hereby set aside. The appellants are further released from the liabilities of their bail bonds. Accordingly, this appeal allowed. --- *** --- .