JUDGMENT : This appeal is directed against the judgment of conviction dated 15.9.2001 and order of sentence dated 20.9.2001 passed by Shri Abdul Samad, 1st Additional Sessions Judge, Deoghar in Sessions Case No.06 of 1991 against the appellants namely Dhuran Mahato and Radhey Mahato by which both the appellants have been found guilty for the offence U/Ss 307/34 of the Indian Penal Code and sentenced them each to undergo R.I. for 10 years and to pay a fine of Rs.2000/-each and in default of payment of fine, they are further directed to undergo R.I. for 1 year. Further the appellant Radhey Mahato found guilty u/s 27 of the Arms Act is sentenced to undergo R.I. for 3 years and to pay a fine of Rs.1000/-and in default of payment of fine, further to undergo R.I. for Six months. Both the sentences are directed to run concurrently. 2. The prosecution case was started on the F.I.R. given by the informant (P.W.5), Parshuram Yadav is that on 26.11.1986 at about 9.30 p.m. when he along with one Basudeo Yadav was returning after attending ‘Shradh’ of his uncle, he saw four persons in the flash light of his torch. He identified them as accused Dhuran Mahato, Dashrath Mahato, Radhey Mahato and Teklal Mahato (since deceased). There upon after the order of Dhuran Mahato, Radhey Mahato fired three shot with his pistol upon the informant, out of which one shot hit below the knee. It is said that Radhey Mahato fired his pistol in order to take life of the informant. On the basis of the said written report police registered a case u/s 307,326 of the I.P.C. and 27 of Arms Act and after investigation, police submitted charge sheet u/s 307/34,326of the I.P.C. and 27 Arms Act. Since the case was exclusively triable by the court of Sessions, therefore learned C.J.M. took cognizance of the case and committed the case to the court of Sessions. Finally the case was tried before the 1st Additional Sessions Judge, Deoghar who after trial found the accused guilty and convicted and sentenced them as aforesaid. 3. It is submitted by the learned counsel for the appellants that during the pendency of the appeal, the appellant Dhuran Mahato died and there is no appeal against him now. It is also submitted that initially 4 accused persons were tried during the trial, but one accused Teklal Mahato died. 3. It is submitted by the learned counsel for the appellants that during the pendency of the appeal, the appellant Dhuran Mahato died and there is no appeal against him now. It is also submitted that initially 4 accused persons were tried during the trial, but one accused Teklal Mahato died. Then after trial, accused Dashrath Mahato was acquitted. Hence the appeal was filed on behalf of Dhuran Mahato and Radhey Mahato, but due the death of Dhuran Mahato during the pendency of appeal, learned counsel is arguing only on behalf of appellant Radhey Mahato. 4. It is submitted by the learned counsel for the appellants that there is no evidence against Radhey Mahato except the evidence of P.W.5 that he got injured by firing of Radhey Mahato who took the orders from Dhuran Mahato. The said evidence has not been proved because there is no corroborative evidence. The doctor, who has proved the injury report marked as ext.1, stated nothing about the injury and it will appear from the injury report that the injuries caused to the informant are simple in nature and hence there is no question of attempt to murder of the informant by Radhey Mahato. The entire prosecution case is full of doubt and the accused / appellant who has suffered the long drawn prosecution since 1986 and has also remained in jail for more than a year deserves sympathetical treatment and he should be acquitted from the charges. 5. On the other hand, learned counsel for the state has opposed the prayer but submitted that there is no witness except P.W.5, the informant himself. 6. After hearing both the parties, I find that the prosecution has altogether examined seven witnesses. P.W.1 is Dr. Mrs. Vidya Sinha who has only proved the injury report as ext.1 and stated that the injured was referred from Jasidih State Dispensary to Sadar Hospital, Deoghar where she examined the injured. P.W.2 is Jaganath Bhandari who is an advocate clerk and proved the formal F.I.R. marked as ext.2 and 2/1. P.W.3 is Gopal Rai, another advocate clerk, who has proved the writing of the Investigating Officer in the written report marked as ext.3. P.W.4 is Kartik Prasad Yadav, another advocate clerk, who has proved the charge sheet marked as ext.4. The only witness who has supported the prosecution case is P.W.5, Parsuram Yadav. P.W.3 is Gopal Rai, another advocate clerk, who has proved the writing of the Investigating Officer in the written report marked as ext.3. P.W.4 is Kartik Prasad Yadav, another advocate clerk, who has proved the charge sheet marked as ext.4. The only witness who has supported the prosecution case is P.W.5, Parsuram Yadav. He has supported the prosecution case and submitted that on 26.11.1986 at about 9.30 p.m. in the night when he was coming back from ‘Shradh’ of his uncle, then he saw four persons standing on the way. When he reached near the lower school, in the light of torch, he identified them as Dhuran Mahato, Dashrath Mahto , Radhey Mahto and Teklal Mahto. When they asked as to why he is flashing the torch, then he put off his torch. There after by the order of Dhuran Mahato, Radhey Mahto fired thrice by his pistol upon the informant. One of the bullet hit his left leg. On hulla, villagers came and took him to the hospital where the bullet was removed from his leg. In his cross examination, he has stated that on the same day i.e. on 26.11.1986 a case was lodged against him in which it was stated that he along with accused Radhey,Durbey,Bachchu,Tarini, Sitaram committed rape upon the wife of Teklal Mahto. He also admitted in para 7 of his cross examination that while he was running away from the place of occurrence, the bullet hit him from the back causing injury on his left leg. He has stated that at that time when he received bullet injury, there were 200 people who were attending the ‘Shradh’ in his house. In para 11 of his cross examination he has stated that night was dark and without torch he could not have identified the accused persons. P.W.6 is Doctor Narendra Mohan Sharma who has only proved Ext.1, the injury report and stated that he extracted the bullet from the informant’s leg. He stated that injuries were simple in nature caused by fire arms. P.W.7 is Gobindji Singh, the Investigating Officer of the case. He has stated that he filed the charge sheet in this case but not examined single witness. 7. Thus, after going through the entire prosecution case, I find that there is only one evidence i.e. the evidence of P.W.5, the informant who has supported the prosecution case. P.W.7 is Gobindji Singh, the Investigating Officer of the case. He has stated that he filed the charge sheet in this case but not examined single witness. 7. Thus, after going through the entire prosecution case, I find that there is only one evidence i.e. the evidence of P.W.5, the informant who has supported the prosecution case. He has stated firstly that the accused Radhey fired upon him, when he flashed torch light upon him. But in cross examination he has stated that he received injury while he was running away and he was being chased by the accused persons. He also admitted that a rape case was lodged against him and Radhey by Teklal Mahto for the occurrence of the same day i.e. on 26.11.1986. In that view of the matter, it appears that the defence case that the informant after committing rape was running away from the place of occurrence and was chased by other accused persons for committing rape including the accused Radhey who fired upon him, as a result of which he received injury on his leg, might be true. The prosecution version given by P.W.5 become doubtful case. In para 7 of his cross examination, the informant has stated that there were about 200 people present there but not a single witness came up in the trial in support of the prosecution that the accused Radhey Mahato fired thrice upon him. He in para 11of his deposition has stated that the night was dark and it was impossible to identify the accused persons without the flash of torch light, but no torch has been produced by the prosecution nor the same was seized by the police. There is no seizure list of torch. Moreover, even in para 7, the informant has deposed that fire was shot by Radhey from his back while he was being chased. But it is not possible to identify as to who caused bullet injury when fire is shot from his back and while he was being chased. Thus, the only evidence of P.W.5, the informant, is not believable in its entirety and the case is full of doubt. Hence, in the above circumstances, the benefit of doubt must be given to the appellant. 8. In the result, the judgment of conviction and order of sentence passed by the court below is set aside. Thus, the only evidence of P.W.5, the informant, is not believable in its entirety and the case is full of doubt. Hence, in the above circumstances, the benefit of doubt must be given to the appellant. 8. In the result, the judgment of conviction and order of sentence passed by the court below is set aside. Since, the appellant is under bail, he is discharged from the liability of his bail bond. 9. Accordingly, the appeal is allowed.