JUDGMENT : Heard Ms. Madhulika Dasgupta with Mr. D. K. Karmkar, learned counsel for the appellant and Mr. Vikash Kishore, learned Addl. Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction dated 27.09.2003 and order of sentence dated 29.09.2003, passed by the learned Addl. Sessions Judge, Fast Track Court No. V, Chaibasa, in S.T. No.299 of 2001/S.T.R. No.6 of 2003, whereby the sole appellant, Markando Pingua Munda has been convicted for the offence punishable under Section 307 I.P.C. and 27 of the Arms Act and has been awarded rigorous imprisonment for a period of five years for the offence punishable under Section 307 I.P.C. and rigorous imprisonment for three years for the offene punishable under Section 27 of the Arms Act and both the sentences are directed to run concurrently. The period already undergone in course of trial, shall be set off against the sentence awarded. 3. The prosecution case is based upon the ‘fardbeyan’ of informant, Shubnath Sinku (P.W.7) recorded by Sub Inspector of Police, Ram Pujan Singh of Hatgamharia Police Station, on 22.08.2001 at 23 hours, at the door of the informant in Village-Kendposhi, where the informant has stated that at around 8 p.m., he went to attend the call of the nature behind his house. While he was returning, one person was coming. The informant asked that who is he, by flashing his torch on him, he identified the person as Markando Pingua, S/o Jogen Pingua Munda, Resident of Village-P. Jhumpara, District-Keonjhar, Orissa, who was tying a ‘gamcha’ on his head to conceal his face, but the informant has identified him. Without replying to the informant, the said accused having pistol in his hand, fired upon the informant, which hit on the left temple, near the ear causing bleeding injury. The informant tried to caught-hold the accused, but the accused fled away. In that process, he sustained injury on his left arm. The informant has stated, that somehow, he came towards his house. In the meantime, his son, Jambira Sinku (P.W.3) and other family members after hearing the sound of firing along with neighbour, Rasika Sinku and others came and they brought him to the house and thereafter information was given to the Police Station. The informant has stated, that somehow, he came towards his house. In the meantime, his son, Jambira Sinku (P.W.3) and other family members after hearing the sound of firing along with neighbour, Rasika Sinku and others came and they brought him to the house and thereafter information was given to the Police Station. The informant has disclosed that reason for occurrence is that he has some land and house in Orissa at Pathvilla and land of the accused, Markando Pingua is also there. Therefore, there is land dispute, for which a ‘Panchayati’ was also convened. The accused, Markando Pingua is in one group and the informant is in another group, for that there is a quarrel. The informant has stated, that he and his son, Mukesh Sinku are residing in Pathvilla and accused, Markando Pingua had earlier given threatening of dire consequences. Some days ago, in ‘Hero’ festival, the accused also came to the village-Kendposi and while celebration was going on, at that place also, he has shown country-made pistol to his son, Jambira Sinku. The informant has stated, that the father of the accused, Markando Pingua has solemnized two marriages. One house of the father of accused is at Balandia, where first wife along with son, Dilip Sinku and others are residing. The informant has stated that he has not seen any other person with the accused, Markando Pingua. The informant has claimed that the accused, Markando Pingua, because of the land dispute, has tried to kill him by firing and causing injury. The said accused, Markando Pingua is man of criminal character. On the basis of the written report of the informant, the Police instituted First Information Report being Jhinkpani P.S. Case No.41 of 2001 dated 23.08.2001 corresponding to G.R. No.343 of 2001 under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. 4. After investigation, the police submitted charge-sheet vide charge-sheet No.45 of 2001 dated 21/09/2001 under Section 307 of the Indian Penal Code and Section 27 of the Arms Act against the appellant/accused, Markando Pingua. 5. The cognizance of the offence has been taken vide order dated 04.12.2001, and the case has been committed to the Court of Sessions vide order dated 17.10.2001. 5. The cognizance of the offence has been taken vide order dated 04.12.2001, and the case has been committed to the Court of Sessions vide order dated 17.10.2001. The charge has been framed against the accused/appellant, Markando Pingua on 21.02.2002 under Section 307 I.P.C. and Section 27 of the Arms Act, to which the appellant pleaded his innocence and thus, he was put under trial. 6. The prosecution, in order to prove its case, has examined altogether ten witnesses, apart from adducing documentary evidence which have been marked as Exhibits. Gunia Sinku has been examined as P.W.1, Mukesh Sinku has been examined as P.W.2, Jambira Sinku has been examined as P.W.3, Kumari Suryamuni Sinku (daughter of the informant) has been examined as P.W.4, Banjlo Sinku has been examined as P.W.5, Rasika Sinku has been examined as P.W.6, Shubnath Sinku (informant and injured of the case) has been examined as P.W.7, Dr. Lalit Minj, (Medical Officer) has been examined as P.W.8 as he has medically examined P.W.7 (Subhnath Sinku), the injured and informant of the case, Bhupendra Singh, Sergeant Major has been examined as P.W.9 as he is the person who has examined fired cartridge recovered by the Police, Bhola Paswan, Assistant Sub Inspector of the Police (Investigating officer of the case) has been examined as P.W.10. 7. After closure of the prosecution evidence, the accused/appellant was examined under Section 313 Cr.P.C. on 20.08.2003, to which he has pleaded his innocence and has claimed that at the relevant time, he was working at TADASHA. After hearing the counsel for the parties, the learned trial court has convicted the appellant under Section 307 I.P.C. and 27 of the Arms Act which was assailed before this Hon’ble Court in the present Criminal appeal. 8. Ms. Madhulika Das Gupta with Mr. D. K. Karmkar, learned counsel for the appellant has submitted, that the impugned judgment of conviction and order or sentence is bad in law, as the learned trial court without taking notice of the fact that the appellant has been falsely implicated in this case as the enmity was prevailing between the parties and under such ill motive, the informant has falsely implicated the appellant, Markando Pingua with whom there is admittedly land dispute between the parties at Pathvilla, Orissa. Learned counsel for the appellant has further submitted, that as per the prosecution case, the informant has identified the appellant in the light of torch and the said torch has not been recovered by the Police and as such, identification of the appellant/accused in the dark light is highly doubtful and because of the land dispute, the informant has falsely implicated the appellant with ill motive. Learned counsel for the appellant has further submitted that there are contradictions in the evidence of the prosecution witnesses. 9. Mr. Vikash Kishore, learned Addl. Public Prosecutor appearing on behalf of the State while supporting the impugned judgment of conviction and order of sentence, has also drawn the attention of this Court towards the First Information Report, which has been marked as Exhibit, wherein the informant has categorically stated, that while he was returning after attending the call of the nature, one person was coming and he identified that person, who has fired upon him with an intention to kill and the cartridge hit on the left temple near the ear causing bleeding injury. The informant has tried to caught-hold him and during that process, the informant has sustained injury on the left arm. After hearing the sound of firing, the informant’s son and other persons were coming and the informant was also some how coming to his house, thus, the informant was brought to his house and thereafter the Police was informed and subsequently, the Police has sent him to Sadar Hospital, Chaibasa with a requisition for medical examination, that has also been brought on record. The signature of the informant on the First Information Report has been proved and marked as Exhibit-2 and the signature of Rasika Sinku has been proved and marked as Exhibit-2/1 and the injury report brought on record has been proved and marked as Exhibit-3. Learned counsel for the State has further submitted, that seizure-list of the fired cartridge has been brought on record and the signature of witness, Gunia Sinku (P.W.1) on the seizure list has been proved and marked as Exhibit-1 and the signature of witness, Jambira Sinku (P.W.3) on the seizure list has been proved and marked as Exhibit-1/1 in the present case, which also supports the prosecution case. Learned counsel appearing for the State has drawn the attention of this Court towards the evidence of P.W.1 (Gunia Sinku) and has submitted that though he is a hearsay witness, but from the information disclosed by him regarding the injured, Shubnath Sinku, his evidence will come under Section 6 of the Evidence Act and that is, in consonance with, the prosecution case. The defence has also cross-examined him, but nothing has been elucidated during cross-examination to disbelieve the prosecution case. Learned counsel for the State on perusal of the records, has submitted that reliance of P.W.1 (Gunia Sinku) is worth credential and cannot be doubted. Learned counsel for the State has further drawn attention this Court towards the evidence of witness, Mukesh Sinku, who has been examined as P.W.2 being son of the informant and has supported the prosecution case, as made out in the First Information Report. This witness has stated that his father was taken to the Hospital, who has said that he has been fired by the accused, Markando Pingua as he had earlier given threatening of dire consequences. This witness (P.W.2) has also been cross-examined by the defence, but nothing has been elucidated to disbelieve the prosecution case. Jambira Sinku (P.W.3), another son of the informant has been examined in this case. This witness has also stated that his father (Shubnath Sinku, informant) was coming in an injured condition towards the house by saying that the appellant/accused (Markando Pingua) has fired upon him. He saw injury on the temple and left shoulder of the injured. This witness has stated during cross-examination, on brawl raised by the father, he went out of the house and saw his father having torch in his hand and the torch is kept in the house as the same has fallen from the hands of the father in the ‘verandah’ of the house. He has further stated, that the cartridge has gone out through the mouth and because of that, bleeding was coming out from the tooth also. The police has seized the cartridge and he has put signature on the same, which has already been marked as Exhibit-1/1. 10. Kumari Suryamuni Sinku, daughter of the informant (Shubnath Sinku) has been examined as P.W.4 by interpreter with consent of both the sides. The police has seized the cartridge and he has put signature on the same, which has already been marked as Exhibit-1/1. 10. Kumari Suryamuni Sinku, daughter of the informant (Shubnath Sinku) has been examined as P.W.4 by interpreter with consent of both the sides. She has stated that her father went to attend call of the nature and thereafter she heard the brawl and saw her father in an injured condition, who (father) disclosed that Markando has fired upon him. During cross-examination, she has stated that she has stated that her father has taken name of Markando, in the way while he was coming to his house and from the visual scene of the injury, it appears that the same has been caused by cartridge and his Baniyan and Lungi was full of blood. 11. Wife of the informant (Banjlo Sinku) has been examined as P.W.5. She has also been examined through interpreter, Rahil Alda, Advocate, and she has supported the prosecution case. She has stated that her husband has disclosed in presence of Gunia, Vidrayana and Rasika that Markando has fired upon him. This witness has been examined by the defence, but nothing has been elucidated to disbelieve the prosecution case. This witness has categorically stated that her husband has disclosed that he has been fired by Markando Pingua. 12. Rasika Sinku has been examined as P.W.6 This witness has also been examined through the interpreter, Parsuram Sinku, Advocte. This witness has stated that after hearing the sound of firing, he went to the house of Shubhnath Sinku, who was raising brawl and was saying that he has sustained injury on the left temple which was fired by Markando Pingua. This witness has seen the blood oozing injury. The police took statement of injured, Shubnath Sinku and he put his signature on the fardbeyan, which has been proved and marked as Exhibit-2 and this witness has also put signature on the fardbeyan which has also been proved and marked as Exhibit-2/1. This witness has been cross-examined by the defence, but his evidence is, consistent with, the prosecution case and nothing has been elucidated by the defence. 13. Shubnath Sinku, informant and injured of the case has been examined as P.W.7. This witness has been cross-examined by the defence, but his evidence is, consistent with, the prosecution case and nothing has been elucidated by the defence. 13. Shubnath Sinku, informant and injured of the case has been examined as P.W.7. This witness has stated that the occurrence took place on 22.08.2001 (Wednesday) in the night at 8 p.m. when he went to attend the call of nature near his house in Paddy field and while he was returning, he heard sound of a person. He asked, who is there, but no reply was given. He put his torch on the person and in the light of the torch, he saw accused, Markando Pingua, who fired upon him by means of pistol. The said cartridge hit on the left temple. This witness has stated that he tried to caught-hold of him. He has further stated that blood was oozing from the injury. He raised brawl, upon which his son and neighbour, Gunia Sinku and son, Jambira Sinku came, who brought him to the house. This witness has further stated that dispute was with respect to the land as he has deposed that he has been fired by the accused. He has claimed, that he can identify Markando Pingua after seeing him, who is present in the Court. This witness has also informed the Police. The Police came and recorded ‘fardbeyan’, which was read-over and explained to him and after finding it to be true, he put his signature which has already been marked as Exhibit-2 in this case. The Police has recorded his restatement. This witness was treated at Sadar Hospital, Chaibasa for 25-26 days and has shown gun-shot injury to the Court which was on the left temple. This witness has stated during cross-examination, that there was no dispute with accused in respect to the land. This witness has further stated that the occurrence took place in the month of August and while he was returning after attending the call of the nature, he took only few steps, the occurrence was committed and thereafter the accused fled away by running, the informant raised brawl. The informant has further stated that the blood has oozed, on the land and also stained his cloth. The house of the informant is situated at a distance of 20 steps on the east side of the place of occurrence. The informant has further stated that the blood has oozed, on the land and also stained his cloth. The house of the informant is situated at a distance of 20 steps on the east side of the place of occurrence. Information was given to the Police and after half an hour, the Police came from Hatgamharia Police Station and in the night, he was admitted in the Hospital. He could not say as to, whether he has handed-over the torch to the Police or not. Where is the torch right now, he could not say about the fired cartridge was found at the place of occurrence. This witness has stated before the Police that he has identified the accused in the light of the torch and the accused by putting a ‘Gamcha on his head to conceal his face, but he (informant) has identified him (accused). The lengthy cross-examination was done by the defence, on material point, this witness has not been contradicted from his fardbeyan or the evidence of the prosecution witnesses, who are hearsay witnesses and his testimony is found to be worth credential. This witness having strong credential and his testimony is worth accepting to the Court. 14. Dr. Lalit Minj (P.W.8), Medical Officer who has examined the victim on 23.08.2001 at Sadar Hospital, Chaibasa has found two injuries on the person of the injured. 1 (a) wound of entrance 1” before the left ear, size ½”x½”x3” deep margins lacerated with surrounding tattooing of the skin. (b) Wound of exit behind the third premolar tooth, left upper maxilla (2) Cut injury on left upper arm lateral aspect of size ½” x ½ “. Doctor has opined that injury no.1 is caused by fire-arm and injury no.2 is caused by sharp-cutting object. Doctor has stated that the age of injury to be between 12 to 24 hours and the nature of injury grievous and the injury report has been proved and marked along with signature of P.W.8 (Dr. Lalit Minj) as Exhibit-3. This witness has said that X-ray of the patient was taken and X-ray plates were either at the hospital or with the patient. This witness was also cross-examined by the defence, but nothing has been elucidated to disbelieve the evidence of this witness, rather the defence has asked, whether he is ballistic expert. Lalit Minj) as Exhibit-3. This witness has said that X-ray of the patient was taken and X-ray plates were either at the hospital or with the patient. This witness was also cross-examined by the defence, but nothing has been elucidated to disbelieve the evidence of this witness, rather the defence has asked, whether he is ballistic expert. The defence has asked about the distance of the injury and whether the blood has stained the victim or not, to which this witness has said that he is not a Balistic Expert and he has said about the distance of the injury and has further said that blood marked might have stained the garment worn by the informant. The injury is found to be consistent with the prosecution case. Nothing has been brought on record to disbelieve either to the prosecution case or contradictions in the injury report. 15. Bhupendra Singh (Sargeant Major, Chaibasa) has been examined as P.W.9. This witness has stated that 303 cartridge has been sent before him for examination which was examined by him. It is missile 303 fired cartridge, which was fired and the report has been prepared by him, which has been proved and marked as Exhibit-4. During cross-examination, this witness has said that he is Ballistic Expert from Advance Training School, Patna and having certificate of B.A. (L.L.B) passed and after training, he has undergone training at Advance Training School (A.T.S.) for one month and he knows difference between 303 and 315 bore. This witness has categorically stated that fire-arm was not produced before him as to whether the same was fired from the rifle or from the Pistol, he has not mentioned the same in the report. This witness has stated that the cartridge, which was wrapped in a paper, bearing the Police P.S. Case number and after proper examination, the report was prepared and nothing has been cross-examined by the defence to disbelieve the evidence of P.W.9. 16. Bhola Paswan (Investigating officer of the case) has been examined as P.W.10. This witness has stated that on 22.08.2001, he was given the charge of investigation of the case being Jhinkpani P.S. Case No.41 of 2001 by the Officer-in-Charge. He has prepared the inquest report and inspected the place of occurrence and recorded the statement of the informant and arrested the accused on 26.08.2001 and submitted charge-sheet in this case after proper investigation. He has prepared the inquest report and inspected the place of occurrence and recorded the statement of the informant and arrested the accused on 26.08.2001 and submitted charge-sheet in this case after proper investigation. The formal First Information Report bears the signature of the Officer-in-Charge which has been marked as Exhibit and the seizure list has been prepared by himself where his signature is there, which has also been marked as Exhibit. This witness (P.W.10) was cross-examined. He has stated that he has recorded the fardbeyan in the night and registered the case on 23.08.2001 at 8.15 a.m. and sent the First Information Report to the Court, which was sent through a Constable. This witness was cross-examined with respect to the station-diary and others, upon which he said that after returning from the place of occurrence, the entry has been made in the Station Diary. He (P.W.10) has further stated that the charge-sheet was submitted after proper investigation. This witness (P.W.10) has stated that injury was found near the ear and below the left shoulder and in the morning seizure list was prepared. He has further stated that after enquiry, he found that the accused has no criminal antecedent. This witness has further stated that he has sent the fired cartridge before the Sargeant Major. This witness has categorically stated, that except informant -cum-injured (Shubnath Sinku), there is no eye-witness to the occurrence. This witness has been cross-examined, but nothing has been found which are contrary to the other prosecution witnesses although the defence has tried to develop contradiction, but that has not been made by the witness. His evidence is, consistent with the, other prosecution witnesses. 17. After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C., on 20th August, 2003 where he has said that he has neither fired nor kept license of pistol and at the time of occurrence, he was at TADASHA for which he brought a document on behalf of the defence and the same has been proved and marked as Exhibit-A, which has been issued by TADASHA, a voluntary team dedicated to “Development Peace” through convergence of “Ecology, Economy and Ethics” issued on 15.05.2002 not soon after the date of occurrence, but during pendency of the case. The defence document has to be seen with respect to its authenticity. The defence document has to be seen with respect to its authenticity. Since D.W.1 (Mongru Munda) who has been examined on behalf of the defence and during cross-examination, he has admitted that they (D.W.1-Mongru Munda and accused/appellant, Markando Pingua) are working as private worker and no paper was prepared to the effect that both were working in the same company and both were working on the day and time, not in the night nor any certificate was issued by the owner with respect to the work they have done. From perusal of the evidence of D.W.1 (Mongru Munda) and document as Exhibit-A, this Court has found this document, which is not to be relied upon, as neither the witness nor the document shows any credential to accept the same. 18. Having heard, Ms. Madhulika Das Gupta with Mr. D. K. Karmkar, learned counsel appearing for the appellant and Mr. Vikash Kishore, learned Addl. Public Prosecutor appearing for the State and from perusal of the record i.e. First Information Report, Charge, deposition of prosecution witnesses, exhibits, statement of the appellant under Section 313 Cr.P.C. as well as the defence evidence, this Court is of the opinion that prosecution case is consistent, that while the informant was returning after attending the call of nature, he was fired by Markando Pingua (appellant), which hit on the left temple near the left ear. The consistency of the evidence is that while he (informant) was trying to catch-hold of the appellant (Markando Pingua), he sustained injury on the left arm below the left shoulder. The defence has cross-examined all the ten prosecution witnesses at length, but nothing has been brought to disbelieve the prosecution case, rather the other witnesses are consistent that on the basis of brawl raised by the informant, the informant's son and co-villager went there while the informant was coming from the place of occurrence and they brought the injured (informant) to the house, who was saying that Markando Pingua (appellant) has fired upon him. The informant has categorically stated that Markando Pingua has tried to conceal his face at relevant time with a 'Gamcha' on his head but by the means of torch light, the informant has identified Markando Pingua, who fired which hit on the left temple of the informant, Shubnath Sinku. 19. The informant has categorically stated that Markando Pingua has tried to conceal his face at relevant time with a 'Gamcha' on his head but by the means of torch light, the informant has identified Markando Pingua, who fired which hit on the left temple of the informant, Shubnath Sinku. 19. The medical evidence is consistent with the prosecution case, as the Doctor has found entry and exit wound on the person of Shubnath Sinku caused by fire-arm injury, which is grievous in nature and also found one injury on the left arm. The Sargeant Major who has examined in this case as P.W.9, has examined the fired cartridge which was found of 303 bore. Thus, from the evidence of the prosecution side, this Court is of the opinion that the trial court has rightly convicted the appellant under Section 307 I.P.C. and 27 of the Arms Act. Accordingly, the impugned judgment of conviction dated 27.09.2003 and order of sentence dated 29.09.2003, passed by the learned Addl. Sessions Judge, Fast Track Court No.Vth, Chaibasa, in S.T. No.299 of 2001/S.T.R. No.6 of 2003, is hereby affirmed and upheld. 20. So far order of sentence is concerned, learned counsel for the appellant has submitted that on the point of sentence, this Court may consider the criminal history of the appellant, the age of the appellant and rigour of trial which he has faced approximately for 18 years. Learned Addl. Public Prosecutor appearing for the State while supporting the order of conviction, has submitted that the learned trial court has rightly awarded rigorous imprisonment for five years under Section 307 I.P.C. and 3 years under 27 of the Arms Act. Learned counsel for the appellant has further submitted, that the appellant has already served sentence almost for three years, as such, instead of sentencing and sending him to serve in custody, it would be better to modify the sentence by some reformatory measure. 21. Considering the submission of the learned counsel for the appellant, it is true that the appellant has no criminal antecedent, as per the evidence of Investigating officer and it is true that occurrence took place owing to civil dispute even then the appellant has fired upon the informant on the vital part of the body, which might lead to death of the informant. 22. 22. As the appellant has already served sentence approximately for three years, as such, this Court is of the opinion that instead of sending him to jail custody, it would be proper and appropriate if the appellant is saddled with monetary fine. After considering the medical evidence of the injured (informant) which has been marked as Exhibit-3, a cost of Rs.55,000/-(Rupees Fifty Five Thousand) be saddled upon the appellant to be paid to the informant (Shubnath Sinku-P.W.7), within a period of four weeks from the date of receipt of a copy of this judgment to the concerned Trial Court under Section 307 I.P.C. 23. If the amount of Rs.55,000/- (Fifty Five Thousand) is not deposited, the sentence awarded by the learned trial court for rigorous imprisonment for five years, is confirmed and the appellant will surrender before the concerned trial court to serve rest of the sentence. 24. So far as sentence under Section 27 of the Arms Act is concerned, as per the statement made by the learned counsel for the appellant, the appellant has already served sentence approximately for three years, no further order is being passed and the period already undergone is sufficient for the appellant for the offence committed and punishable under Section 27 of the Arms Act. This reformatory views has been taken only after considering the fact that the appellant has no criminal antecedent and if he is being sent to jail, he may mix with the known criminal of Chaibasa who are languishing in the jail custody. 25. With the modification in the order of sentence, as per the conditions laid down, as aforesaid, this criminal appeal stands dismissed. The bail bonds of the appellant is hereby cancelled. The appellant is directed to comply with the order/judgment within a period of four weeks, from the date of receipt of a copy of this judgment to the concerned trial court, failing which, learned trial court is directed to take all coercive measures for procurement of the appellant to serve rest of the sentence. The payment of compensation will be paid to the victim by way of Bank Draft drawn in the name of informant and injured (Shubnath Sinku-P.W.7). 26. The payment of compensation will be paid to the victim by way of Bank Draft drawn in the name of informant and injured (Shubnath Sinku-P.W.7). 26. The learned Trial Court is directed to issue notice to the informant and injured (Shunath Sinku-P.W.7) and in case he is not alive, the notice will be issued to his legal heirs and the amount shall be paid to the informant or his legal heirs. 27. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal dismissed.