JUDGMENT : Ratnaker Bhengra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 08.05.2003 passed by Sri Ganpati Tiwary, the learned Additional Sessions Judge, Fast Track Court No. I, Bokaro in Sessions Trial No. 258 of 1999 whereby and whereunder, appellant has been convicted for the offence under section 459 and 307 of the Indian Penal Code and 27 of the Arms Act and sentenced to under go R.I. for 5 years under section 459 of the IPC and undergo R.I. for 5 years under section 307 of the I.P.C. and further sentence of 1 year R.I. under section 27 of the Arms Act. All the sentences were ordered to run concurrently. 2. The prosecution case as stated in the fardbayan of Arjun Mahto son of Manger Mahto, village-Karharia, P.S.-Balidih, District-Bokaro recorded by S.I. N. Khan, Officer-in-Charge of Balidih Police Station on 09.08.1998 at Bokaro General Hospital is that the previous night, he was sleeping with his family including his children, in his house. At night around 12.30 a.m., his son Jagat Mahto suddenly started crying at which he awoke. On awaking, he saw that one thief had caught hold of the hand of his son by his hand and was trying to untie the ox from the house. At this, he assaulted the thief with stick at which the thief caught hold of his wife Shakuntala Devi and took her outside and fired shot at her and fled away. The bullet injured his wife on the left side of her chest. He has stated that he recognized the thief as Mahun Mahato, son of not known, resident of Kanharia but at the same time said that it seemed like him because there is land dispute continuing with him. The thief was not able to steel the ox and take it away. Before this also, the ox had been stolen three times. On making alarm, Gopal Mahto, Shankar Nayak, Bhola Nayak and others came and they were informed about the incident. With the help of one Babulal Nayak, his wife was taken on a tempo in the night itself to Bokaro General Hospital where she was admitted for treatment. 3. Before this also, the ox had been stolen three times. On making alarm, Gopal Mahto, Shankar Nayak, Bhola Nayak and others came and they were informed about the incident. With the help of one Babulal Nayak, his wife was taken on a tempo in the night itself to Bokaro General Hospital where she was admitted for treatment. 3. On the basis of the fardbayan of the informant, FIR was lodged under section 459, 380 and 307 of the Indian Penal Code and 27 of the Arms Act and after investigation, charge sheet was submitted. 4. Cognizance was taken by the learned C.J.M., Bokaro for the said sections and the case has been committed to the court of sessions. 5. The charges were framed against the accused under the same sections and explained to the accused to which, he pleaded not guilty and claimed to be tried. 6. The prosecution examined altogether six witnesses and tried to prove the charges levelled against the accused person. 7. Trial was held and at the conclusion of which the court of the Additional Sessions Judge, FTC -I, Bokaro, convicted the accused for the offences under section 459, 307 of the Indian Penal Code and 27 of the Arms Act and sentenced him to undergo R.I., for 5 years under section 459 of the IPC, R.I. for 5 years under section 307 of the IPC and R.I. for 1 year under section 27 of the Arms Act. All the sentences were ordered to run concurrently. 8. P.W. 5 is Arjun Mahto and he is also the informant. He has deposed that the incident is of about 1 O'clock at night and he was in his house. Mahun Mahato came and started steeling his ox and take it away. He caught hold of him but he released himself and fled away. When, he had caught hold of him then he fired a shot at his wife. The bullet hit his wife on the side of the chest. He has further deposed that he recognized Mahun Mahato at the light of the lantern. After his wife being hurt by the bullet and the fleeing away of the accused, he took his wife to Bokaro General Hospital for treatment. The police had come to the hospital and he had told the police regarding the incident. The statement of which is marked as Ext.-5. After his wife being hurt by the bullet and the fleeing away of the accused, he took his wife to Bokaro General Hospital for treatment. The police had come to the hospital and he had told the police regarding the incident. The statement of which is marked as Ext.-5. He has further deposed that Mahun Mahato is his nephew and that there is no land dispute subsisting with him. He has deposed that the house where he was sleeping with his wife, Kuttu Bala was also sleeping and they had closed the door and were sleeping. His house had four rooms and in one room, he was sleeping with one wife and in one room and in another room, his other wife was sleeping. The two other rooms were closed. On coming from the passage into the house, the cowshed comes first where the animals are tied. In paragraph no. 6, he said in the room, where he was sleeping from there the cowshed is at a distance of about 20'feet. Deposing further, he has said that cowshed has different door and further also said that the cowshed has three doors and all the three doors latched even when they were sleeping. To enter the cowshed, one can even enter from the stairs from above. In paragraph no. 9, he has said that he saw Mahun Mahato climbing to the house. He first climbed the stairs on the house of Girdhari Mahto and from there to his brother's Duryodhan Mahto house and then from there using the stairs, he came to the cowshed. He had made alarm, at which many persons, Bhola Mahto, Gopal Mahto, Shankar Mahto etc. had come. He had caught hold of Mahun Mahato. In paragraph 11, he has said that from the room, where he was sleeping to go to the cowshed, he does not need to pass through any other room. 9. P.W.1, Shakuntala Devi is the wife of the informant. She has deposed that she was sleeping at 2 o'clock at night when the thief entered the house and was fleeing, taking the child with him. She went to save him at which the bullet hit her on the chest and she fell down. She made alarm at which her husband came and she informed him that accused Mahun Mahato had shot at her. She has recognized the accused in the dock. She went to save him at which the bullet hit her on the chest and she fell down. She made alarm at which her husband came and she informed him that accused Mahun Mahato had shot at her. She has recognized the accused in the dock. She has further deposed that accused Mahun Mahato is her husband's elder brother's son and further stated that there is no land dispute with him. Why accused entered the house, she does not know. She has also said that persons came after the accused had fled away. 10. P.W. 2. is also the wife of the informant Arjun Mahato. She has deposed at about 12 o'clock in the night, she was sleeping in the room beside. On alarm, she awoke when shot was fired and saw that the passage was stained with blood of Shakuntala, P.W. 1. When P.W. 1 was asked then she informed that Mahun Mahato had shot her. Shakuntala said that when she was closing the door of the passage then Mahun Mahato shot at her. Shakuntala was wounded at the left chest. In paragraph 3, she has deposed that she did not see anyone firing the shot or running away. She had shown to the police the place where the blood had fallen and that the police had taken the blood stained soil with them. She has also deposed that Mahun Mahato is the son of their neighbour and his father is in relation, elder brother of her husband. In para 4, she has further deposed that they have no land dispute with accused Mahun. Shakuntala had regained consciousness after 8 to 10 days. 11. P.W. 3 is Jagat Mahto. He is son of informant and he is a child witness. At para 1 of his deposition, he has deposed that on the date of occurrence, he was sleeping in a room and on the sound of gunfire, he woke up and saw pool of blood in the courtyard. His mother Shakuntala Devi was in an injured condition and blood was coming out from the injury. Members of the family, bandaged his mother and took her for treatment to Bokaro General Hospital. In para 2, he has said that his mother informed him that accused Mahun Mahto and his friend shot at her and ran away. His mother Shakuntala Devi was in an injured condition and blood was coming out from the injury. Members of the family, bandaged his mother and took her for treatment to Bokaro General Hospital. In para 2, he has said that his mother informed him that accused Mahun Mahto and his friend shot at her and ran away. At para 4, he said that at the sound of gunfire, he woke up and saw his mother lying in the blood stained courtyard. At paragraph no. 7, he said where his mother had fallen down, no one had come there before him. He has further deposed that 2 to 3 minutes after he reached in the courtyard, his father arrived. 12. P.W. 4, Ashok Kumar is the I.O. of the case. He has deposed that on taking charge of the investigation, he had gone to the house of the informant and taken his restatement and examined the place of occurrence. He had described the direction or lay out of the place of occurrence or the house of the informant. He has deposed that the part of the bullet of rifle was found which he seized and made a seizure list. The other part of the bullet was found about 10 meters north. The parts of the bullet was seized in the presence of Yamuna Singh and Girdhari Mahto and marked as seizure list Ext.-1 and they have signed on the seizure list. He recorded the statement of witnesses and injured persons and after investigation, submitted charge sheet. He has further proved the fardbayan of Arjun Mahto which has been marked as Ext.-2 and also the endorsement which has been marked as Ext.-3. In paragraph 7, he has deposed that in the house of the injured, he had not found any blood stained soil in the passage because due to rains, it had been swept away. In paragraph 9, he has deposed that he had taken the statement of injured persons and that the informant had informed him that accused Mahun Mahato fired the shot. He had not conducted the T.I. parade for identifying of Mahun Mahato. All the witnesses had informed about the land dispute between Mahun Mahto and the informant. He has further deposed that no other witness apart from the concerned family had stated that they had seen accused Mahun Mahato entering the house of the informant. 13. He had not conducted the T.I. parade for identifying of Mahun Mahato. All the witnesses had informed about the land dispute between Mahun Mahto and the informant. He has further deposed that no other witness apart from the concerned family had stated that they had seen accused Mahun Mahato entering the house of the informant. 13. P.W. 6, is Doctor Saroj Kumar Tiwary who was posted on 09.08.1998 in causality department of Bokaro General Hospital. He has further deposed that on 09.08.1998 in the night shit at 4.30 a.m., one female , namely, Shakuntala Devi aged about 30 years was brought by her husband Arjun Mahato and her husband stated that she sustained gunshot injury at 1 a.m., while she was in her house of village Karharia, P.S.- Balidih, District-Bokaro. He has further deposed that on examination, he found small pin pointed bleeding point all over her chest and abdomen. He has further deposed in para 1 that there was wound of 4” middle to the left nipple measuring 1 /2”x1 /2”. He further found wound of exit 6” lateral to middle line of the level of L2 vertibra. He has also deposed in para 2 that injury no. 1 was simple in nature and for ascertaining the nature of injury no. 2 and 3, Shakuntala Devi was referred to Surgeon Dr. Sujit Pandey. He has further deposed that all the aforesaid injuries were caused by firearm. Injury report has been proved by him and marked as Ext 6. He has further deposed in para 5 that there was pin pointed bleeding injuries all over chest and abdomen of Shakuntala Devi. This witness has also stated that around the wound gun powder was absent. This witness has stated in para 8 that the injuries itself speak that the same were caused by firearm and he did not interrogated the injured about her injuries as she was suffering acute pain but her husband was interrogated about it. 14. Three defence witnesses have also been examined in this case. D.W. 1 is Babulal Nayak. He has deposed that he is a villager and that the informant is uncle of accused Mahun Mahto. He had admitted that on the date of occurrence, Shakuntala Devi, wife of the informant had sustained injury which was caused by firearm. This witness had denied that Mahun Mahato fired at Shakuntala Devi. D.W. 1 is Babulal Nayak. He has deposed that he is a villager and that the informant is uncle of accused Mahun Mahto. He had admitted that on the date of occurrence, Shakuntala Devi, wife of the informant had sustained injury which was caused by firearm. This witness had denied that Mahun Mahato fired at Shakuntala Devi. In para 3, he has said that on hearing the alarm of thief-thief (Chor-Chor), he had gone to the place of occurrence and apart from him Haldhar Mahto, Gopal Mahto, Shankar Nayak, Bhola Nayak, appellant Mahadeo Mahato @ Mahun Mahato had also reached there. After reaching there, they had also chased the person who had fired the shot. He has further deposed that 7-8 days prior to the incident, there was an altercation of appellant with Arjun Mahato regarding irrigating the fields and due to this Arjun trapped appellant Mahadeo in this case. In para 4, he has said that appellant Mahadeo had also helped him in sending the Arjun's wife to the hospital. 15. D.W. 2 is Gopal Mahato. He has deposed that he had gone to informant Arjun's house on alarm where Shankar Nayak, Bhola Nayak and appellant Mahadeo @ Mahun and others had also come. Appellant Mahun had ran ahead of him and reached informant Arjun's house and Mahun Mahato and others had also helped in lifting Arjun's wife on to his tempo. At that time, no one had told to the informant Arjun or his wife that it was appellant Mahun who had shot at Arjun's wife. 16. D.W. 3 is Shankar Nayak. He has deposed that he had gone to Arjun's house on hearing the alarm of thief-thief (Chor-Chor) and there Gopal, Babulal, appellant Mahun and Bhola had also come. He has further deposed that he had seen the thieves from back side while they were running away. Mahun was also there with us. In para 2, he has deposed that Gopal, Babulal and Mahun had together bandaged the injury and it was wrong to say that Mahun had fired at the wife of Arjun. In para 3, he has deposed that he had heard that one week ago there was a fight and further deposed that he had told the police on being questioned that Mahun was with them. 17. Learned counsel for the appellant stated there are glaring contradiction or inconsistencies in the evidences and depositions. In para 3, he has deposed that he had heard that one week ago there was a fight and further deposed that he had told the police on being questioned that Mahun was with them. 17. Learned counsel for the appellant stated there are glaring contradiction or inconsistencies in the evidences and depositions. For instance P.W. 1 Shakuntala Devi, wife of informant has said that there was no land dispute with the appellant, Mahun Mahato, while in the fardbayan, it is said that there was a dispute between informant and appellant. Learned defence counsel has asserted that the witnesses are from one family or related to each other, and no other witnesses have come forward, even though as per the fardbayan certain other persons such as Shankar Nayak and Bhola Nayak reached at the place of occurrence. It is important to state that in spite of those persons being mentioned by the informant himself, why the independent persons did not become prosecution witness. Defence counsel has also argued that the statements or evidence regarding blood or blood stains are inconsistence or contradictory. P.W. 2, the other wife has deposed that the place of occurrence in the house, was wet with blood, P.W. 3 Jagat Mahato has also deposed that blood was spilled in the courtyard, however, the I.O. has said he saw no blood, because as he said it was due to the rains blood being swept away. So he saw no blood. The fardbayan mentioned no blood on the passage or earth, even P.W. 1 Shakuntala Devi does not say about blood on the passage. 18. Learned A. P.P. has, on the other hand, argued that P.W. 6, who is doctor has treated the injured witness P.W. 1 Shakuntala Devi. The injury report corroborates the ocular evidence of the injured witness P.W. 1 and thus it is established that injured witnesses, who is the eye witness are fully reliable and trustworthy and so on this basis, conviction is sustained. He has further stated that P.W. 5, who is the informant has mentioned in his fardbayan that shot was done on the left side of the chest and this corroborates with the injuries as reported by the doctor or the P.W. 6. He has further stated that P.W. 5, who is the informant has mentioned in his fardbayan that shot was done on the left side of the chest and this corroborates with the injuries as reported by the doctor or the P.W. 6. He has further said that the motive was simply to steel the ox and when he was caught steeling the ox, he fired shot, so the motive is also established. He has further said that the defence witnesses D.W.1, 2 and 3 have not denied the occurrence, so when the occurrence is not denied, the accusation against the appellant or the accused by the prosecution witnesses are sustainable. He has further said that the I.O. has also visited the place of occurrence and it has come that he saw the place of occurrence and saw the place where firing was done and that the I.O. has stated that due to rain, the blood had been swept away but nevertheless he had seized parts of rifle bullets in front of witnesses, which proved that firing was done and cannot be denied. So, on the basis of the injured witness, who happens to be fully reliable and trustworthy and those injury are corroborated by the doctor and those assaults are corroborated by other witnesses, hence, the case against the appellant has been fully proved and he is liable to be convicted and punished. FINDINGS 19. Having gone through the arguments, records and evidences, and in the facts and circumstances, first of all the fardbayan itself has certain weakness. The informant, Arjun Mahato has stated in the fardbayan that the thief looked like Mahun Mahato, and then follows in the next sentence by saying, because land dispute was subsisting with him. If we take the two sentences together, it seems that because some land dispute was subsisting with appellant Mahun Mahato, he was named on suspicion. In the fardbayan he then says that even before this three times theft had taken place, but it seems he did not, on those occurrence, name the current appellant. 20. The informant has further described that he awoke due to the crying of his son Jagat Mahato and saw that one thief was holding the hand of his son and trying to untie the ox. 20. The informant has further described that he awoke due to the crying of his son Jagat Mahato and saw that one thief was holding the hand of his son and trying to untie the ox. He hit the thief with stick at which the thief caught hold of his wife and took her outside and fired shot at her and fled away. 21. It will be seen that all this while, he simply refers to the thief as thief and no name is used for him. Later on he gave him the name of Mahun Mahato, because of certain land dispute. Further even the main version of events is quite unbelievable in the sense that the thief is untying the ox, the informant hits him with a stick, then the thief, in stead of, defending himself from the informant, took his wife out side and shot her and fled away. 22. In his deposition, the informant says that he caught hold of Mahun Mahato and he fired on his wife and ran away. Here he makes no mention of hitting him with stick. He also says he recognized him by lantern light, which is not mentioned in the fardbayan. In para 4 of his deposition, informant says there is no dispute with Mahun Mahato, while in the fardbayan, he has said otherwise. 23. Now regarding evidence of his wife Shakuntla Devi or P.W. 1 it was seen that she says that she was sleeping. Her child was being taken away by appellant and she went to save him and then the appellant fired on her, and when her husband came, then she told him about the events. It is seen that this version is different from the version of the husband in the fardbayan, where he says, he hit the appellant with stick, who then fired on his wife. Other aspects significant in her deposition is that she says, there was no dispute with Mahun. 24. P.W. 3 is Jagat Mahato, a child witness, who it is said that he was being kidnapped or being taken away by the appellant. However, he himself does not say anything in the court. He has deposed that he was sleeping in his room when he awoke at the sound of gunfire and then he saw blood fallen in the courtyard and her mother Shakuntala Devi fallen and injured. However, he himself does not say anything in the court. He has deposed that he was sleeping in his room when he awoke at the sound of gunfire and then he saw blood fallen in the courtyard and her mother Shakuntala Devi fallen and injured. He has further deposed that his mother told him that Mahun Mahto had shot at her. However, it will be noted that in the version of the father, P.W. 5 and mother P.W. 1, it is said he was being taken away by appellant but P.W. 3 says he awoke on gunfire and then reached the place where his mother was injured. This seems a significant difference from the fardbayan as well as the evidence of P.W. 5. Further in para 7, he says that his father came 2-3 minutes after he reached the courtyard, which means , his mother had already been injured by gunfire. So how come or when did P.W. 5 assault Mahun Mahato or had the occasion to recognize him ? So it seems there are significant differences in the version of the father, the mother and the son. P.W. 3 has deposed that his mother, P.W. 1 told him that there were two persons. Now if one person is apprehended, surely he would have then named the other person. Now there is another important aspect. In the fardbayan, P.W. 5 has mentioned that on alarm or 'hulla' other persons had also come, such as Gopal Mahato, Shankar Nayak and Bhola Nayak and others, and that with the assistance of one Babu Lal Nayak his wife was taken in tempo to Bokaro General Hospital. Then P.W. 5 in his deposition has also said that Bhola Mahato, Gopal Mahato, Shankar Mahato and others had also come. But it is seen that D.W. 1 or Babu Lal Nayak has also named quite a few persons including Mahun Mahato and reaching there on alarm, and that they had even chased the person who had fled. It does not seem they were chasing Mahun Mahato. He has categorically stated that P.W. 5 has made wrong accusation against the appellant and that due to altercation regarding irrigating of agricultural field between the two, this case has been instituted. On the other hand, Mahun Mahato also assisted in sending the informant's wife to hospital. It does not seem they were chasing Mahun Mahato. He has categorically stated that P.W. 5 has made wrong accusation against the appellant and that due to altercation regarding irrigating of agricultural field between the two, this case has been instituted. On the other hand, Mahun Mahato also assisted in sending the informant's wife to hospital. Even Gopal Mahato and Shankar Nayak who are D.W. 2 and D.W. 3, who have also been mentioned by P.W. 5 or informant in his fadbayan, but they have not supported the informant's case. 25. For all the aforesaid reasons, it is apparent there was prior enmity between the informant and appellant. P.W. 5, P.W. 1 and P.W. 3 who are said to have witnessed the incident have different version of the same event and even the other persons who are co-villagers and defence witnesses have not supported the allegation of the informant. Hence, for the aforesaid reasons, I am inclined to give the benefit of doubt to the appellant and hold him not guilty for the offenses under section 459, 307 of the Indian Penal Code and 27 of the Arms Act. 26. Hence, the judgment of conviction and order of sentence dated 08.05.2003 passed in Sessions Trial No. 258 of 1999 by the Additional Sessions Judge, Fast Track Court No. I, Bokaro is set aside. 27. Accordingly, this appeal is allowed. The appellant is on bail, his bailors are discharged from the liability of their bail bonds.