JUDGMENT : Appellants Bakhori Yadav and Lootan Yadav have been found guilty for an offence punishable under Section 307/149 of the I.P.C. as well as Section 27 of the Arms Act vide judgment of conviction dated 18.09.2013 and each one has been sentenced to undergo rigorous imprisonment for ten years under Section 307/149 of the I.P.C., rigorous imprisonment for three years under Section 27 of the Arms Act with a further direction to run the sentences concurrently vide order of sentence dated 19.09.2013 by the Additional Sessions Judge-IInd, Barh, Patna in Sessions Trial No.42 of 2009 whereupon instant appeal has been filed. 2. Ajay Yadav (PW-1) gave his fard-bayan (Exhibit-1) at emergency ward of P.M.C.H. on 20.10.2007, disclosing therein that while he along with his brother Karu Yadav was returning along with mustard oil along with cake after grinding mustard from the mill of Bishwanath Choudhary and reached near Champapur Orchard on 19.10.2007 at 2.00 p.m., they have seen Dhaneshwari Devi, Ramdas Mahto, Lutan Yadav, Bakhori Yadav and Akhilesh Yadav, out of whom, Dhaneshwari Devi had disclosed that as they have deposed against her in connection with Case no.65 of 2007, so they be murdered. In pursuance thereof, the remaining four accused persons began to fire indiscriminately causing injury over the person of Karu Yadav. On hue and cry raised by him, his co-villager Ram Bali Singh, Arun Kumar, Doman Yadav along with others rushed, seeing whom, the accused persons ran away. Then thereafter, Karu Yadav was lifted to P.H.C., Bakhtiyarpur where first aid was given and then was referred to P.M.C.H., where he was operated and was unconscious at the time of recording of fard-bayan. 3. The aforesaid fard-bayan was transmitted to Bakhtiyarpur P.S. whereupon Bakhtiyarpur P.S. Case no.276 of 2007 was registered. It is also evident that on account of apprehension of these two appellants, chargesheet was filed and trial proceeded against these two appellants keeping the investigation pending against the remaining three, that means to say, Dhaneshwari Devi, Ramdas Mahto and Akhilesh Yadav. The trial concluded by way of recording conviction and sentence as indicated above, hence, this appeal. 4. The defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 Cr.P.C. is of complete denial as well as of false implication. However, neither any DW nor any kind of document has been exhibited. 5. The trial concluded by way of recording conviction and sentence as indicated above, hence, this appeal. 4. The defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 Cr.P.C. is of complete denial as well as of false implication. However, neither any DW nor any kind of document has been exhibited. 5. In order to substantiate its case, prosecution had examined altogether ten PWs, out of whom, PW-1 Ajay Yadav, the informant, PW-2 Karu Yadav @ Devesh Yadav, PW-3 Arun Kuma, PW-4 Doman Yadav, PW-5 Jairam Yadav @ Dallu, PW-6 Vidhan Mahto, PW-7 Bijay Rai, PW-8 Ram Janam Mahto, PW-9 Mahendra Prasad Yadav, the part I.O., who had submitted chargesheet and PW-10 Dhivnath Prasad Singh, the main I.O. Prosecution had also exhibited the documents as Exhibt-1 fard-bayan, Exhibit-2 endorsement over fard-bayan, Exhibit-3 formal F.I.R., Exhibit-4 another endorsement. Doctor has not been examined nor the injury report has been brought up on record, though discharge slip is found having Exhibit-5. 6. Learned counsel for the appellants vehemently challenged the finding recorded by the learned lower Court on the plea that the learned lower Court acted in mechanical manner while convicting and sentencing both the appellants. It has been submitted that on account of non-examination of doctor, the manner of occurrence became abandon as the nature of injuries could not surfaced which has got relevance in the background of the fact that four persons have been alleged to have shot at Karu Yadav (PW-2) as well as informant Ajay Yadav (PW-1). It has also been submitted that as PW-1 as well as PW-2 as were running having been chased at the end of the appellants including others, it was not possible for the prosecution party to identify the author of the injury, had there been a gap. On account of non-examination of the doctor, the gap in between, if any, could not be properly exposed, because of the fact that had there been charring, tattooing, the gap would have been narrower having an occasion to the prosecution party to identify the assailant amongst the four who were indulged in indiscriminate firing and that happens to be reason behind that other witnesses right from PW-4 to PW-8 have not supported the case of the prosecution. 7. 7. It has also been submitted that prosecution has knowingly as well as intentionally withheld the earliest prosecution version in the background of the fact that there happens to be admission at the end of PW-1 that no sooner than commission of the occurrence, I.O. had arrived at the place of occurrence before whom, he had already narrated the occurrence. The offence happens to be cognizable one in the background of the fact that an attempt upon life of prosecution party, as alleged, had taken place. So, it was incumbent upon the Police Officials to have recorded and registered an F.I.R. in terms of Section 154 of the Cr.P.C. as was mandatory one. The I.O., during course of examination, did not controvert the disclosure made by the PW-1. So, taking into account the totality of the event as well as conduct of the prosecution, it is apparent that the reason best known to the prosecution, withholding the earlier version got this case instituted implicating the appellants. Accordingly, the appeal is fit to be allowed. 8. At the other end, the learned Additional Public Prosecutor assisted by learned counsel for the informant has submitted that from cross-examination of the PWs, it is apparent that prosecution has got no grievance against these two accused persons. That being so, there happens to be no occasion for them to falsely implicate, more particularly by the PW-2, an injured that too, replacing the main assailant by the appellants without any cogent as well as valid reason. Furthermore, it has also been submitted that there happens to be no inconsistency or exaggeration in the evidence of PW-2, who had identified Lutan Yadav to be his assailant having been corroborated by the PW-3, who was not at all cross-examined at the end of appellants. Not only this, it has also been submitted that occurrence is found true even taking into account the objective finding of the I.O. So, submitted that instant appeal to the extent of appellant Lootan Yadav is fit to be dismissed. 9. The evidence having been deposed by the witnesses before the Court happens to be the substantial evidence and on account thereof, that has got relevance. 9. The evidence having been deposed by the witnesses before the Court happens to be the substantial evidence and on account thereof, that has got relevance. From perusal of the evidence, so adduced on behalf of prosecution, it is apparent that PW-4 to PW-8 have gone volte-face to the prosecution in its entirety and on account thereof, their evidences are worthless, more particularly, taking into account the conduct of the prosecution as is evident from the evidence under Para-3 of PW-10 whereunder joint statement on that very score has been attracted. 10. Now, remained the evidence of PW-1, PW-2 and PW-3, out of whom, PW-2 is the injured, who had identified Lootan Yadav to be author of his injury. From his deposition, it is apparent that he has not been cross-examined on this material point. PW-3 is another witness, who had claimed Lootan Yadav to be author of the injury over person of PW-2, who was not at all cross-examined by the appellant and on account thereof, was discharged. 11. Now, remains the evidence of PW-1, the informant. Though, during course of his examination-in-chief, he had reiterated his earlier version what he had stated in his fard-bayan. However, during course of cross-examination at Para-9, had stated that just after occurrence, police had come at the place of occurrence. Police had come after half an hour. He had talk with the police official at the place of occurrence. The police officials were of Bakhtiyarpur P.S. The police official had talk with other persons also at the place of occurrence. Ram Bali Yadav, Doman Yadav, Arun Kumar including he himself had disclosed regarding the occurrence. The aforesaid version has not been brought up on record. But, there happens to be some sort of deficiency at the end of the appellants while cross-examining PW-10, the I.O. as the defence had failed to draw his attention towards the aforesaid disclosure. 12. Thus, after analyzing the evidence available on the record, it is apparent that in the facts and circumstances of the case, appellant Bakhori Yadav is found entitled for availing the benefit of doubt and is accordingly, held so. On account thereof, instant appeal to the extent of appellant Bakhori Yadav is allowed. He is on bail, hence, is discharged from its liability. 13. On account thereof, instant appeal to the extent of appellant Bakhori Yadav is allowed. He is on bail, hence, is discharged from its liability. 13. With regard to appellant Lootan Yadav, I do not see any cogent, convincing reason to interfere with the finding recorded by the learned lower Court on account of consistent evidence identifying him as an assailant. Non-examination of doctor did not aleatory the prosecution case, as defence could not be able to sack his status as an assailant by means of firearm, nor the defence controverted the same. That being so, instant appeal preferred on his behalf is dismissed. Now, coming over question of sentence, as has been raised on behalf of appellant Lootan Yadav that he remained under custody for more than seven years would not justify in the background of nature of allegation. Accordingly, appellant Lootan Yadav is directed to suffer the remaining part of sentence inflicted by the learned lower Court. Appeal allowed in part.