JUDGMENT : RATNAKER BHENGRA, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 7.5.2003, passed by learned Additional District Judge (Fast Track Court) Seraikella in S.T. No. 356 of 1997, whereby and whereunder, the learned court-below convicted the appellant under Sections 307 of the Indian Penal Code and 27 of the Arms Act and sentenced the appellant to undergo R.I. for seven years under Section 307 of the Indian Penal Code and three years under Section 27 of the Arms Act. Both sentences were ordered to run concurrently. 2. The prosecution case as per fardbeyan (Ext.4) of PW-3, Budheshwar Mukhi is that on 20.05.1995 at about 6.00 p.m. his brother Atang Mukhi, PW-2, was at his house along with other family members. In the meantime, the accused Gurucharan Mukhi, who is his brother-in-law, came there. His brother Atang Mukhi said to the accused why he had come there as he had already quarreled with him in the Company. Then the accused threatened to kill him and then accused started quarreling with his brother Atang. Scuffle took place and then the accused took out the pistol from his waist and fired on the victim Atang causing injuries to him. He took his brother for treatment to TMH where he was operated. 3. On the basis of the fardbeyan of the informant, PW-3, Budheshwar Mukhi, Adityapur P.S. Case No. 88/95 was registered under Sections 341/323/448/307 of the Indian Penal Code and under Section 27 of the Arms Act. After investigation, police submitted charge-sheet. Cognizance was taken and the case was committed to the court of sessions. 4. Charges were framed under Sections 341/448/307 of the Indian Penal Code and under Section 27 of the Arms Act, which was denied by the accused-appellant and he claimed to be tried. Trial was held and after the conclusion of the trial, the accused-appellant was convicted and sentenced, as aforesaid. Hence, this appeal. 5. The prosecution examined altogether five witnesses. These witnesses are PW-1 Dr. Amitabh Chandra Jha; PW-2 is injured Atang Mukhi; PW-3, Budheshwar Mukhi, the informant; PW-4, Shyamal Mukhi and PW-5, Ahmad Hussian a formal witness. 6. PW-3, Budheshwar Mukhi, who is informant, said that on the day of occurrence accused came to his house. Quarrel and scuffle started between accused and Atang. These witnesses are PW-1 Dr. Amitabh Chandra Jha; PW-2 is injured Atang Mukhi; PW-3, Budheshwar Mukhi, the informant; PW-4, Shyamal Mukhi and PW-5, Ahmad Hussian a formal witness. 6. PW-3, Budheshwar Mukhi, who is informant, said that on the day of occurrence accused came to his house. Quarrel and scuffle started between accused and Atang. In the meantime, accused took out a pistol from his waist and fired on Atang which hit on his left hand. Atang fell down due to injury and accused fled away. Injured Atang was taken to TMH for treatment. He has proved his signature on fardbeyan marked as Ext.2. In cross-examination, he said that he could not get time to catch the accused as the scuffling and gun fire took place suddenly. 7. PW-2, Atang Mukhi, is the injured eye witness. He deposed that on the day of occurrence the accused started abusing him and then took out pistol from his waist and fired on his left hand. He had also shown the pillate injury in the Court. He further said that he was then brought to TMH for treatment. In cross-examination, he had said that the accused tried to push him down in the scuffling. He also said plenty of blood oozed out from the injury. 8. PW-4 Shyamal Mukhi is not a witness to the shooting and injury, but, he was at the place of the occurrence prior to the shooting. He had seen the earlier quarrel between accused and victim and had reached at spot again after hearing the shot and had seen the injury of victim. In cross-examination he said that incident took place in the house of his courtyard. At para-13, he said when accused took out pistol, he was frightened and ran away. 9. PW-1 Dr. Amitabh Chandra Jha examined injured Atang Mukhi on 20.05.1995 at 7.00 p.m. He found a punctured wound with charring on left shoulder in the front having a diametre of one inch. He said that this was a wound of entry. He said about bullet like structure beneath skin in the back. He said that this injury may have caused by fire arm. In his cross-examination, he said that he is a physician and only a surgeon can say about the details of injuries. 10. He said that this was a wound of entry. He said about bullet like structure beneath skin in the back. He said that this injury may have caused by fire arm. In his cross-examination, he said that he is a physician and only a surgeon can say about the details of injuries. 10. PW-5 is Ahmad Hussian, who proved the formal FIR, which was marked as Ext.3 and the fardbeyan, which was marked as Ext.4. Arguments of the learned counsel for the appellant: 11. Learned counsel for the appellant has submitted that appellant has no case either of the Section 307 of the Indian Penal Code or Section 27 of the Arms Act, 1959 that can be sustained and upheld against the appellant. First and foremost, he has argued that the offence under Section 307 of the Indian Penal Code cannot be made out because there was no intention to kill the injured person, moreover, the incident occurred during a scuffle and the pistol was indiscriminately fired, but it cannot be said to have been aimed at the injured, because the injury is on a non-vital part of the body. The injury was on the left shoulder. From the fardbeyan of the informant PW-3 as well as his evidence, it is clear that a scuffle took place, and that suddenly firing took place. In fact, initially there was a quarrel, if the appellant was intending to kill or murder Atang Mukhi, he could have straight away shot at him without quarrelling or having any discussions. 12. Learned counsel also argues that even the Doctor, PW-1, Dr. Amitabh Chandra Jha is not a competent witness. This witness, himself says that only a surgeon can say about the nature of injury. 13. Learned counsel also argued that PW-2, PW-3 and PW-4 are all related witnesses and all have due to dispute with the appellant gave evidence against the appellant. Even so, their evidence is not consistent. PW-3, Budheshwar Mukhi says that the incident of firing and scuffle was sudden, PW-2 Atang Mukhi, the injured, however, says that the appellant first abused him, then his father, brother and nephew protested and then the appellant took out a pistol and fired. PW-4, Shyamal Mukhi has not seen the firing, but only saw the injury, so he cannot give evidence as to who fired. PW-4, Shyamal Mukhi has not seen the firing, but only saw the injury, so he cannot give evidence as to who fired. Moreover, the Doctor, PW-1, is simply incompetent witness as he has himself said that he was a physician and he did not say anything about the details of injury. 14. Learned counsel, also argued regarding Section 27 of the Arms Act, 1959 and submitted that the pistol was not recovered. So in absence of recovery of pistol, no case under the Arms Act can be sustained. Moreover, there is no sanction under the Arms Act, 1959, for prosecution. Counsel argues that, if there is no recovery of pistol, then how can sanction be given. Moreover, when there is no recovery of pistol, then conviction under Section 307 of the Indian Penal Code cannot be sustained. Counsel concludes that for the aforesaid reason, enough doubt is created to give the benefit of doubt to the appellant against any conviction under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. Arguments of the learned A.P.P. appearing on behalf of the State: 15. Learned A.P.P. appearing on behalf of the State has, on the other hand, argued that all the witnesses have supported the prosecution case. Referring to the evidence of PW-2, learned A.P.P. has submitted that PW-2 is the injured eyewitness, hence, fully reliable and dependable. This witness has deposed that the argument began in the work place itself, and then the appellant came and continued it in his house. Despite opposition from his father, brother and his nephew, the appellant did not pay heed and took out his pistol and fired on his left hand. Referring to the evidence of PW-3, learned A.P.P. has submitted that this witness is the informant, and he has supported his fardbeyan. He has categorically deposed that Gurucharan had fired the bullet. Learned A.P.P. then submits that even PW-4, who is the nephew, has deposed that he saw the appellant taking out the pistol, and due to fear he left the room. Thereafter, he heard firing. So he may not be an eye-witness, but he has seen enough to link the chain. 16. Regarding the evidence of the Doctor or PW-1, Dr. Amitabh Chandra Jha, learned A.P.P. submits that he had examined the injured PW-2 and found punctured wound with charring on his left shoulder. Thereafter, he heard firing. So he may not be an eye-witness, but he has seen enough to link the chain. 16. Regarding the evidence of the Doctor or PW-1, Dr. Amitabh Chandra Jha, learned A.P.P. submits that he had examined the injured PW-2 and found punctured wound with charring on his left shoulder. He opined that injury was caused by firearm. Learned A.P.P. thus says that medical evidence is corroborated the ocular evidence. 17. Regarding the non-production and non-exhibiting of the firearm, learned A.P.P. says the Doctor has opined that injury is of firearm, the other witnesses have already deposed that a pistol was used. So use of the pistol or such firearm by the appellant is supported by evidences. Thus conviction of the appellant under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act, 1959, passed by the learned court below is proper and requires no interference. FINDINGS 18. Having heard both counsels, having gone through the records of the case, I find that this is a case, in which, the occurrence took place in a home, hence, the witnesses are from the family itself, in fact, it is a family quarrel. There is allegation of shooting from a pistol and gun shot injury. The evidence of PW-1, Doctor Amitabh Chandra Jha, becomes crucial. On going through the doctor's evidence, I find that there are inconsistencies that require one's attention. PW-1, in para-1 of his deposition says there was no visible marks on the patient and continues to say that he found the injuries on the person of the patient, and lists two injuries as follows: (i) Punctured wound with charring wound. This entry wound on the left shoulder in the front having a diametre of one inch. (ii) Bullet like structure beneath the skin in the back. 19. Doctor has in his deposition regarding nature of injury said nature of injuries are grievous and allegedly caused by firearms. However, in his cross-examination, he says that he is a physician and only a surgeon can tell about the details of the injuries. This indicates PW-1 has some doubts about his competence to comment on the injuries. There is, however, no evidence of any further treatment of injured Atang Mukhi by any other Doctor or surgeon. However, in his cross-examination, he says that he is a physician and only a surgeon can tell about the details of the injuries. This indicates PW-1 has some doubts about his competence to comment on the injuries. There is, however, no evidence of any further treatment of injured Atang Mukhi by any other Doctor or surgeon. He has also deposed that the wound was bleeding is not mentioned in his report and he has not mentioned about the inflammation of the injury. 20. To test whether the injury caused to the injured PW-2 was grievous, one has to see the definition of grievous hurt. Section 320 of the Indian Penal Code deals with “Grievous hurt” which reads as under: “320. Grievous hurt - The following kinds of hurt only are designated as grievous:- First Emasculation. Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either ear. Fourthly Privation of any member or joint. Fifthly Destruction or permanent impairing of the powers of any member or joint. Sixthly Permanent disfiguration of the head or face. Seventhly Fracture or dislocation of a bone or tooth. Eighthly Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 21. The injuries caused to PW-2 do not seem to fall anywhere in the eight categories listed. Therefore, it may not have been grievous injuries, but, some injuries was caused to PW-2 Atang Mukhi also cannot be denied. 22. It has come in the evidence of the prosecution witnesses that there was a quarrel and that also a scuffle took place. Fortunately, it was not on any central or vital part of the body, such as, the head or the chest. Injury on the shoulder, resulting from a scuffle does not demonstrate intention for Section 307 of the Indian Penal Code. The pistol allegedly used for the offence was also not seized or exhibited. PW-1 Doctor at para-2 of his deposition said that he found bullet like structure beneath the skin in the back of the injured and this may have caused due to fire arm. But, in his cross-examination, he said he cannot say whether bullet was taken out from the body of the patient. PW-1 Doctor at para-2 of his deposition said that he found bullet like structure beneath the skin in the back of the injured and this may have caused due to fire arm. But, in his cross-examination, he said he cannot say whether bullet was taken out from the body of the patient. So, the prosecution failed to recover the said bullet and get it examined by the expert. So offence under the Arms Act is not proved. Therefore, for all the aforesaid reasons, I am unable to accept conviction of the appellant under Section 27 of the Arms Act and hence, the conviction under Section 307 of the Indian Penal Code is also not proved due to the reason that trial was held on the charges that appellant brandished pistol with intention to kill Atang Mukhi. So, when the conviction under Section 27 of the Arms Act fails then conviction under Section 307 of the Indian Penal Code of the appellant also collapses automatically. 23. Atang Mukhi, the injured, PW-2 has, on the other hand, in his evidence deposed that he was injured on the left hand. From the evidence of Doctor (PW-1), injured (PW-2) and informant (PW-3) it is clear that injury was caused by the appellant. Hence, from the evidences, I conclude that offence under Section 323 of the Indian Penal Code is made out. 24. Accordingly, the judgment of conviction and order of sentence dated 7.5.2003, passed by learned Additional District Judge (Fast Track Court) Seraikella in S.T. No. 356 of 1997 is set aside and the appellant is convicted for the offence under Section 323 of the Indian Penal Code. Appellant’s bail bond is cancelled. Bearing in mind, the age of the case, and the circumstances of the case, he is sentenced to simple imprisonment of three months only to suffice the ends of justice. 25. Accordingly, this appeal is dismissed, though with modification in conviction and sentence.