JUDGMENT : Heard learned counsel for the appellants and learned Addl. P.P. for the State. 2. Since both these appeals have been preferred against the common impugned judgment of conviction dated 30.11.2005 and Order of sentence dated 02.12.2005, passed by the learned Additional Sessions Judge, Fast Track Court No.2, Deoghar, in Sessions Case No. 202 of 2000, hence both these appeals are disposed of by this common judgment. By the said judgment of conviction dated 30.11.2005 and Order of sentence dated 02.12.2005, the learned Additional Sessions Judge, Fast Track Court No.2, Deoghar, convicted and sentenced all the appellants namely Dinesh Singh @ Vinesh Singh, Singeshwar Singh, Diwakar Singh and Umesh Singh for the offences punishable under sections 341, 307 read with section 34 of the Indian Penal Code and sentenced them to undergo R.I. for seven years with fine of Rs.10,000/- and in default of payment of fine six months further imprisonment for the offence punishable under Section 307 of the Indian Penal Code and also sentenced them to undergo S.I. for one month for the offence under section 341 of the Indian Penal Code. Dinesh Singh @ Vinesh Singh who is the appellant of Criminal Appeal (SJ) No. 9 of 2006 besides the above conviction and sentence, was also convicted for the offence under section 27 of the Arms Act and sentenced to undergo R.I. for three years and all the sentences of all the appellants were directed to run concurrently. 3. The case of the prosecution in brief is that on 23.05.2000 at 08:00 A.M., the informant along with her son Saroj Kumar Jha was grazing their cattle. At that time the appellant-accused persons namely Singeshwar Singh, Umesh Singh, Dinesh Singh and Diwakar Singh started fighting with Bhavesh Jha and Murari Jha in connection with their land dispute. The son of the informant namely Saroj Jha tried to pacify them but the appellant-accused persons Singeshwar Singh, Umesh Singh, Dinesh Singh and Diwakar Singh assaulted the son of the informant namely Saroj Jha with slaps and fist blows. The informant also intervened and tried to pacify the parties and in between the appellant Dinesh Singh with an intention to kill the son of the informant fired upon him from a pistol by which Saroj Jha sustained injury near the knee of his left leg and he fell down at the said place and became unconscious. The informant also intervened and tried to pacify the parties and in between the appellant Dinesh Singh with an intention to kill the son of the informant fired upon him from a pistol by which Saroj Jha sustained injury near the knee of his left leg and he fell down at the said place and became unconscious. The informant brought her victim son to Sadar Hospital, Deoghar in unconscious condition and while the treatment of the victim was going on, police recorded the fardbeyan of the informant. On the basis of the fardbeyan of the informant, police registered Jasidih P.S. Case No. 90 of 2000 and took up investigation of the case. 4. Upon completion of the investigation, police submitted charge sheet against the appellant-accused persons and upon commitment of the case to the court of session charges for the offence punishable under section 341, 323, 504, 324/34 and 307/34 of the Indian Penal Code were framed against the four appellant-accused persons and charges for the offence punishable under section 27 of the Arms Act was separately framed against the appellant Dinesh Singh @ Vinesh Singh. The appellant-accused persons denied the charges and were put to trial. 5. In support of its case, the prosecution altogether examined five witnesses and proved the documents. In support of their defence, the appellant-accused persons also examined one formal witness and proved the following documents :- (i) Ext. A - Certified Copy of deposition of Umesh Singh. (ii) Ext. A/1 - Certified Copy of deposition of Shankar Singh. (iii) Ext. A/2 - Certified Copy of deposition of Diwakar Singh. (iv) Ext. A/3 - Certified Copy of deposition of Vinesh @ Dinesh Singh. (v) Ext. A/4 - Certified Copy of deposition of Singheshwar Singh. (vi) Ext. B - Complaint Petition of PCR No. 231 of 2000. (vii) Ext. C - Pareha. 6. Out of the witnesses examined on behalf of the prosecution, P.W.1 - Sita Devi is the informant of the case. She has stated that the occurrence took place at 08:00 A.M about 6-7 months before her examination in the court. The appellants-accused were mixing their field with the field of Murari Jha but as Bhawesh Jha and Murari Jha forbade the same, Bhawesh Jha and Murari Jha were assaulted by the appellant-accused persons. At this, Saroj Jha intervened to pacify them. The appellant-accused persons assaulted Saroj Jha with slaps and fist blows. The appellants-accused were mixing their field with the field of Murari Jha but as Bhawesh Jha and Murari Jha forbade the same, Bhawesh Jha and Murari Jha were assaulted by the appellant-accused persons. At this, Saroj Jha intervened to pacify them. The appellant-accused persons assaulted Saroj Jha with slaps and fist blows. P.W.1 raised hue and cry. Ghanshyam Jha, Chandrashekhar Jha and Shyamsundar Jha came running there. At this, Singeshwar Singh ordered Dinesh Singh to fire with an intention to kill and upon that Dinesh Singh assaulted Saroj Jha and after assaulting Dinesh Singh fled away. Saroj Jha was hit at his left knee. P.W.1 could not say by which means Saroj Jha was fired upon. Saroj Jha became unconscious on being fired upon and he was taken in a cot by lifting to Rohini and from Rohini, he was taken to Deoghar Sadar Hospital where he was treated. During the course of treatment of Saroj Jha, police came and P.W.1 narrated the incident to police. Police read over the contents. At that time Chandrashekhar Jha and Shyam Sundar Jha were also there with the informant and after being read over the contents of the fardbeyan, P.W.1 affixed her thumb impression on the fardbeyan. At about 03:00 P.M., Saroj Jha was referred to Bhagalpur for treatment and he was treated there. She identified the appellant-accused persons who were present in the Court and claimed to identify the accused persons who were represented on that day in court by their advocate. In her cross-examination, the P.W.1 stated that the place of occurrence field is bounded on the north by Murari Jha, in the south by Murari Jha, in the east by Murari Jha and in the west by Uday Kant Jha. Though land was recorded in the name of P.W.1 but the record of right stands in the name of Sudisth Jha, who is the father-in-law of the P.W.1. P.W.1 further stated that Sudisth Jha has four sons namely Murari Jha, Bhawesh Jha, Kailash Jha but she again stated that Sudisth Jha is her Chacha-Sasur (brother of her father-in-law). When she was asked whether she knows the plot number of place of occurrence, she answered that she does not know the place of occurrence land. In her cross-examination P.W.1 stated that her victim son fell down with his face downwards and much blood was lying near the place of occurrence. When she was asked whether she knows the plot number of place of occurrence, she answered that she does not know the place of occurrence land. In her cross-examination P.W.1 stated that her victim son fell down with his face downwards and much blood was lying near the place of occurrence. Two to four hours after reaching the Deoghar Hospital, her son regained sense and police came after her son regained sense. Police asked two questions to her son but thereafter her son became senseless and thereafter he did not regained sense. With the P.W.1, Chandrashekhar Jha, Murari Jha etc. were there at the hospital. Her son regained sense after one or two days and thereafter police recorded the statement of her son. In paragraph no.14 of her deposition, the P.W.1 has stated that she showed the place of occurrence where the blood was lying to the police but she did not accompany the police to the place of occurrence. The appellant Singeshwar Singh has also instituted case against the son of P.W.1 and his agnates. 7. P.W.2 - Saroj Kumar Jha is the son of the informant. He has stated that the occurrence took place on 23.05.2000 between 7 – 8 A.M. Scuffle and exchange of hot words was going on between Bhawesh Jha, Murari Jha and Bibhuti Jha on one side and the appellant-accused persons on the other. P.Ws. 1 and 2 went there and told them not to quarrel. At this, the P.W.2 was assaulted. P.W.1 raised hue and cry. Singeshwar Singh exhorted co-accused persons to kill P.W.2, at this Dinesh Singh fired at the P.W.2 from pistol by which the bullet hit the thigh of the P.W.2 and he fell down and became senseless. P.W.2 was treated at Sadar Hospital. After regaining sense, he informed the police. He was sent to Bhagalpur for better treatment. He identified the appellant-accused persons in court. In his cross-examination he has stated that Murari Jha, Bhawesh Jha and Bibhuti Jha are his Chachera Chacha. He cannot say in whose field he was grazing the cattle. He cannot say the boundary of the field where he was grazing the cattle. He was sent to Bhagalpur for better treatment. He identified the appellant-accused persons in court. In his cross-examination he has stated that Murari Jha, Bhawesh Jha and Bibhuti Jha are his Chachera Chacha. He cannot say in whose field he was grazing the cattle. He cannot say the boundary of the field where he was grazing the cattle. He cannot say the plot number of the field where he fell down but the said field is bounded in the north by the field of Bhawesh Jha, in the south by the field of Bhawesh Jha, in the west by the field of Sudhdeo Jha and in the east by the field of Bhawesh Jha. When he reached there none of the villagers was present. In paragraph no.12, he stated that he fell down where he sustained injury and lots of blood was lying there. He sustained bullet injury from the backside and on sustaining the bullet injury; he fell with his face downwards. After sustaining the bullet injury, he regained sense only at 04:00 P.M. at Sadar Hospital. Police came and recorded his statement. He was fired from a distance of 2-3 hands. He sustained only one injury on his body. He denied the suggestion that his relatives fired at him with an intention to kill him and at the instance of his paternal uncle, he has falsely implicated the appellant-accused persons in this case. 8. P.W.3 - Dr. M.A. Sattar is the doctor who treated the P.W.2. He has stated that on 23.05.2000, he was posted at Sadar Hospital, Deoghar as Civil Assistant Surgeon. On police requisition, he examined the injured Saroj Kumar Jha at 10:45 A.M. and found the following injuries on his person:- Lacerated injuries above left knee size 2½” X2” over bone deep in the lower 1/3rd of left femur bone ulna with black charred margin of the wound-damaging skins, muscles, nerves, blood vessels and the femur bone broken to pieces at the side of entrance of wound with severe bleeding. The P.W.3 did first aid to the patient thereafter referred him to Medical College, Bhagalpur for needful treatment to save his life. The injury no.1 was caused by fire arm and grievous in nature. Time elapsed from the injury to his examination by the P.W. 3 was within six hours. On being proved by him, the injury report was marked as Ext.1. The injury no.1 was caused by fire arm and grievous in nature. Time elapsed from the injury to his examination by the P.W. 3 was within six hours. On being proved by him, the injury report was marked as Ext.1. In his cross-examination he has stated that he did not find any foreign material in the wound and he only found the wound of entry and no wound of exist of bullet. Blackening and charring might be caused by explosive substance also. In X-Ray also he did not find any foreign material. He has not given the any dimension of the accurate depth. 9. P.W.4 - Prem Chand Ram is the I.O. of the case. He has stated that he took up investigation of the case and recorded statements of the witnesses. He went to the place of occurrence as per the description of the same furnished by the informant to him, in the absence of the informant. According to the P.W.4, the place of occurrence is the barren field of Ganesh Singh which was ploughed and on that field it was alleged that accused-appellant fired at the victim Saroj Jha and there the victim fell down. According to the P.W.4 the place of occurrence is bounded on the north by road and barren land of Ramo Singh, in the west by barren land of Sukhdeo Jha and footpath and at a distance of 2 kilometers in the south-western corner the brick house of Jagdish Jha opening to the east was situated and in the north barren land of Sudhir Jha and one footpath and barren land of Dinker Singh and Govind Singh were existing and in the south barren land of Nageshwar Singh was existing. He obtained the injury report from the hospital and after investigation submitted the charge sheet. In his cross-examination, he has stated that he did not find any trace of blood lying at the place of occurrence. He went to the place of occurrence on the date of occurrence itself at about 11:00 A.M. He did not record the statement of Ganesh Singh, Govind Singh and Nageshwar Singh. He has further stated that while he was in the police station, he got anonymous information of bullet being fired and he himself made an entry in Sanha which was marked as Ext.4. He has further stated that while he was in the police station, he got anonymous information of bullet being fired and he himself made an entry in Sanha which was marked as Ext.4. P.W.1 did not state before him that the appellant-accused persons were assaulted with slaps and fist blows and in between Saroj went there to pacify them and the four appellant-accused persons together assaulted Saroj with slaps and fist blows and hue and cry being raised by the P.W.1, Shyam Sunder and others came there. He neither recorded any plot number of the place of occurrence nor could he find any empty cartridge. 10. P.W.5 - Rama Nand Harijan has recorded the fardbeyan of the informant. On that fardbeyan Shyam Sunder Jha also signed. On being proved by him, the fardbeyan was marked as Ext.2 and the endorsement in the F.I.R. was marked as Ext.3. In his cross-examination he has stated that the injured was admitted in the hospital. He recorded the fardbeyan of the P.W.1 where the injured was admitted. 11. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused persons were recorded regarding the circumstances appearing in evidence against them. The appellant-accused persons denied the same and pleaded innocence. 12. In their defense the appellant-accused persons examined D.W.1-Manoj Das, who is a formal witness. The D.W.1 has proved the signature and initial of the advocate on the complaint which was marked exhibit-B. 13. Learned court below after considering the evidence in record, convicted and sentenced the appellant-accused persons as already indicated above. 14. Mr. P.S. Dayal, the learned counsel for the appellants submitted that the learned court below failed to consider the evidence in record in its proper perspective and overlooked the contradictions in the evidence of prosecution on vital aspects. Learned court below after considering the evidence in record, convicted and sentenced the appellant-accused persons as already indicated above. 14. Mr. P.S. Dayal, the learned counsel for the appellants submitted that the learned court below failed to consider the evidence in record in its proper perspective and overlooked the contradictions in the evidence of prosecution on vital aspects. It is further submitted by the learned counsel for the appellants that the witnesses of the prosecution shifted the place of occurrence from the land of the appellant-accused persons as stated by the Investigating Officer to the land of their agnates as stated by the P.Ws.1 and 2 and it is also submitted that even the P.Ws.1 and 2 inter se have stated about two different places of occurrence, so there is vital contradiction regarding the place of occurrence of the case and coupled with the fact that it is the admitted case of the prosecution that there was case and counter case regarding the same occurrence and assaults were made by both the parties, creates a serious doubt about the version of the alleged occurrence put forth by the prosecution. It is then submitted that the shifting of place of occurrence by the witnesses of the prosecution from the land of the appellant-accused persons to the land of their agnates certainly shows that witnesses of the prosecution are not truthful and have suppressed the material facts from the Court. It is further submitted that though the P.W.3 has categorically stated that the injured was brought by police but the same contradicts the testimony of the P.W.1 that P.W. 2 was first admitted in Sadar Hospital Deoghar and after that police came to the hospital and recorded the statement of the victim and this also contradicts the testimony of the P.W.5 as the P.W.5 has deposed that he recorded the fardbeyan of the P.W.1 at the place where the victim-P.W.2 was treated, hence this also creates doubt about the prosecution case. Learned counsel for the appellants further submitted that no fire arm was recovered by the police nor any empty cartridge was found by the police and the doctor also did not find any wound of exit nor he found any foreign material even on seeing the X-ray report and this coupled with the testimony of the P.W.1 that she cannot say by which weapon the P.W.2 sustained the said injury also creates a doubt in the case of the prosecution. It is next submitted that as already indicated above, P.W.1 has not categorically stated that Dinesh Singh fired at the P.W.2 rather she has stated that Dinesh Singh had assaulted and after assaulting, he fled away and then stated that P.W.2 sustained injury near his knee, which gives rise to the inference that the P.W.1 has not supported the case of the prosecution that Dinesh Singh fired at P.W. 2, even though she is an eye witness of the alleged occurrence. It is then submitted that as the P.W.1 claims herself to be an eye-witness of the case and the fact that as per the prosecution case, there were several persons present at the place of occurrence and a scuffle was going on there so there was some sort of a melee hence in such a situation, the failure of P.W.1 to either categorically state that by which means the bullet was fired at P.W.2 or that who exactly fired at the P.W.2 certainly creates a doubt about the case of the prosecution that it is the appellant-accused-Dinesh Singh who fired at the P.W.2. It is also submitted by the learned counsel for the appellants that as the P.W.2 has categorically stated that he was fired from his backside and on sustaining injury, he fell down with his face downwards makes it improbable that he saw the appellant-accused-Dinesh Singh firing at him. It is further submitted that there is no plausible explanation as to why the prosecution has withheld from the witness box, the material witnesses like Shayam Sundar Jha and Chandra Shekhar Jha who are also the signatories to the fardbeyan which is marked as Ext.2 and who were also eye-witnesses to alleged occurrence and this certainly magnify the doubts about the prosecution case. Further it is also submitted that though both the P.Ws.1 and 2 have categorically stated that there was much blood lying at the place of occurrence, the same is contradicted by the testimony of the Investigating Officer who has stated that he did not find any trace of blood at the place of occurrence though he visited the place of occurrence after about three hours of the occurrence and this also creates a doubt about the case of the prosecution. Hence, it is submitted that the appellants be acquitted of the charges by at least giving them the benefit of doubt. 15. Mrs. Niki Sinha the learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that both the P.Ws. 1 and 2 are the eye-witnesses to the occurrence and the P.W. 2 has categorically stated about the Dinesh Singh @ Vinesh Singh firing at him with an intention to murder him and both the P.Ws. 1 and 2 have stated about the appellant-accused persons together assaulting the P.W.2 before firing at him in furtherance of their common intention and the testimony of the material witnesses of the prosecution is corroborated by the testimony of the P.W.3, the doctor who examined the victim-P.W.2. Hence, she submitted that the evidence in record is sufficient to establish each of the charges against each of the appellants and the learned court below having rightly convicted and sentenced the appellant-accused persons, these appeals being without any merit be dismissed. 16. Having heard the rival submissions made at the bar and on perusal of the record, I find that so far as the appellant-accused persons-Umesh Singh and Diwarkar Singh are concerned, there is absolutely no direct evidence against either of them of committing any overt-act of omission or commission in the alleged occurrence. I also find force in the submission of the learned counsel for the appellants that there is major contradiction in the evidence regarding the place of occurrence. I also find force in the submission of the learned counsel for the appellants that there is major contradiction in the evidence regarding the place of occurrence. As is evident from the evidence put forth by the prosecution as discussed above, the witnesses of the prosecution have shifted the place of occurrence from the field of the appellant-accused persons to the field of their agnates and as rightly submitted by the learned counsel for the appellants that there is discrepancy in the evidence regarding the boundaries of the place of occurrence in the testimonies of P.W.1 and P.W.2 as well. It is also evident that the Investigating Officer neither found any empty cartridge nor he could recover the alleged fire arm from which the bullet was allegedly fired by the appellant-accused persons at the P.W.2. The fardbeyan in the record reveals that there is delay of about two days in transmission of the F.I.R. to the Court as the F.I.R. was registered on 23.05.2000 but the same was placed before the Chief Judicial Magistrate concerned on 25.05.2000. There is contradiction in the testimony of the P.W.3, who was a doctor in Sadar Hospital, Deoghar at the relevant time when the injured was brought to the P.W.3 by the police vis-à-vis the testimony of P.W.1 and the P.W.5 according to which, the victim was first admitted in the Sadar Hospital Deoghar and thereafter, police was informed and came to hospital. The fact that the P.W.3 did not find any injury of exit of the bullet nor he found any foreign material in the wound even in the X-ray plate nor the Investigating officer found any empty cartridge at the place of occurrence also creates doubt regarding the case of the prosecution. The exhibits A to A/4, B and C, which are respectively the deposition of the witnesses and other connected documents of the counter case, show that Murari Jha after a scuffle went to the house and brought one country made pistol and fired at Singeshwar Singh but the same actually hit Saroj Jha. These facts certainly create doubt about the prosecution case hence, this Court is of the considered view that this is a fit case where the appellants be acquitted by giving them the benefit of doubt. 17. These facts certainly create doubt about the prosecution case hence, this Court is of the considered view that this is a fit case where the appellants be acquitted by giving them the benefit of doubt. 17. Accordingly, the appellants namely Dinesh Singh @ Vinesh Singh, Singeshwar Singh, Diwakar Singh and Umesh Singh are acquitted of all the charges and the impugned judgment of conviction dated 30.11.2005 and Order of sentence dated 02.12.2005, passed by the learned Additional Sessions Judge, Fast Track Court No.2, Deoghar, in Sessions Case No. 202 of 2000 being not sustainable in law is set aside. The appellants are on bail. In view of their acquittal, they are discharged of the liability of their bail bonds. 18. Let the Lower Court Record be sent back to the court below along with a copy of this Judgment forthwith. 19. In the result, these appeals are allowed.