JUDGMENT : Heard, learned counsel for the appellant, Ms. Amrita Banerjee assisted by Mr. Pankaj Verma, Advocates and Mr. Suraj Verma, learned Additional Public Prosecutor, appearing for the State. 2. The instant criminal appeal is directed against the impugned judgment of conviction, dated 10.06.2003 and order of sentence, dated 17.06.2003, in Sessions Trial No.258 of 1989 passed by learned Additional District & Sessions Judge, Fast Track Court-IV, Bokaro, whereby the sole appellant has been convicted for the offence punishable under Sections 324 and 307 of the Indian Penal Code and awarded rigorous imprisonment for one year and rigorous imprisonment for seven years respectively. By the said impugned judgment, two other co-accused persons have been acquitted by the learned trial Court. 3. The prosecution case is based upon the fardbeyan of Sona Ram Gope (P. W. 7) recorded by Sub-Inspector N. K. Singh, Pindrajora Police Station on 27.08.1985 at 11.30 p.m., where the informant has alleged that his son-in-law Kripa Gope used to assault his daughter Buluna Gwalin and after assault, he has sent his wife to the house of the informant with his younger brother, Haren Gope, one week ago before the date of occurrence. It is alleged by the informant that yesterday i.e on 26.08.1985, his son-in-law came to the house of the informant to meet his wife but the informant refused on the ground of illness of his daughter and has assured that after one week, he may take her or the informant himself will bring her to Sasural. Upon this, the son-in-law abused the informant and stayed at night in the house of the co-villager Kiran Gope. It is further alleged that today i.e. on 27.08.1985, in the morning son-in-law came again and abused the informant and again went to the house of Kiran Gope. It is alleged that at around 8.00 p.m. in the night, the accused Kripa Gope came to the house of the informant and fired with a gun causing injury to the informant. When Kirti Singh and Karuna Devi came for the rescue of the informant, then the accused also fired upon them, due to which both of them also got injured. The informant has stated that the firing was made by his son-in-law Kripa Gope along with his elder brother Yogendra Gope and one unknown person, whose face could not be remembered because of darkness. The informant has stated that the firing was made by his son-in-law Kripa Gope along with his elder brother Yogendra Gope and one unknown person, whose face could not be remembered because of darkness. The informant has claimed that his son-in-law Kripa Gope, Yogendra Gope and one unknown person fired from a gun causing injury upon him, Kiti Singh and daughter Karuna Devi. 4. On the basis of the fardbeyan of the informant, Police instituted First Informant Report bearing Pindrajora P. S. Case No. 69 of 1985 dated 28.8.1985 under sections 307 and 324/34 of the Indian Penal Code and 27 of the Arms Act. 5. After investigation, the police submitted chargesheet against three accused persons Yogendra Gope, Kripa Gope and Haren Gope, all sons of Bhagu Gope, vide charge-sheet No.52 of 1986 dated 30th September, 1986, under Sections 307, 324, 316, 498A/34 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 4.10.1986 and the case has been committed to the court of Sessions vide order dated 26.06.1989. 7. The learned trial Court has framed charge against all three accused persons under Sections 324/34, 326/34, 316/34, 498A/34, 307/34 and 307 of the Indian Penal Code vide order dated 6.10.1993, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether ten witnesses and also exhibited a number of documentary evidences. Batul Gope (son of the informant) has been examined as P. W. 1, Guru Gope (nephew of the informant) has been examined as P. W. 2, Ramu Gope (brother of the informant) has been examined as P. W. 3, Arjun Singh has been examined as P. W. 4, Smt. Purna Devi (wife of the appellant and daughter of the informant) has been examined as P. W. 5, Smt. Karuna Devi (another daughter of the informant and one of the injured of this case) has been examined as P. W.6, Sona Ram Gope (informant and victim of the case) has been examined as P. W. 7, Dr. R. K. Pathak who has examined Karuna Devi, injured has been examined as P.W.8, Kiti Singh (another injured of the case) has been examined as P. W. 9, Hari Gope has been examined as P. W. 10, but has been declared hostile by the prosecution. 9. R. K. Pathak who has examined Karuna Devi, injured has been examined as P.W.8, Kiti Singh (another injured of the case) has been examined as P. W. 9, Hari Gope has been examined as P. W. 10, but has been declared hostile by the prosecution. 9. The prosecution in order to prove its case has also adduced documentary evidence. The signature in the seizure list has been proved and marked as exhibit 1, signature of Sona Ram Gope on the written report has been proved and marked as exhibit 2, injury report of Karuna Devi has been proved and marked as exhibit 3. 10. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr. P. C. on 23.08.2002, where he has stated that the he is innocent and has been falsely implicated by the informant. The defence has also examined two defence witnesses namely Anand Gope as D. W. 1 and Ganesh Chandra Rai as D. W. 2. 11. After, hearing the parties, the learned trial Court has convicted the sole appellant Kripa Gope @ Kripa Singhu under Sections 324 and 307 of the Indian Penal Code and acquitted him under Sections 316, 498A/34 of the Indian Penal Code but two other accused persons Yogendra Gope and Haren Gope have been acquitted of all the charges by the learned trial Court by the same impugned judgment. 12. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has assailed the impugned judgment in the present appeal, which has been preferred before this Hon’ble Court. 13. Heard, learned counsel for the appellants, Ms. Amrita Banerjee assisted by Mr. Pankaj Verma, advocates. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted the informant Sona Ram Gope has stated in the fardbeyan, that the occurrence took place in the house of the informant and Sona Ram Gope was initially assaulted, thereafter, when Kiti Singh and his daughter Karuna Devi came, they were also assaulted by fire arm causing injury but the prosecution has developed and exaggerated its case during the trial by saying that four persons got injury but this fact has not been stated in the First Information Report. From the statement of the informant during his cross-examination in the Court, he has admitted that he was in the house of his brother when firing was made and after hearing the sound of firing, he came to his house and saw Kiti Singh in injured condition, who has fallen on the ground because of gun shot injury. Learned counsel for the appellant has further submitted that, upon scrutinizing the evidence of the informant as stated in the fardbeyan and during examination as P. W. 7 in the Court, there are vital contradictions in the manner of occurrence and the place of occurrence. The informant has further stated that his daughter, who is wife of the appellant has also sustained injury but this fact has not been stated in the First Information Report. This is one of the vital contradictions in the prosecution case. Learned counsel for the appellant has further submitted that independent witness P. W. 10, Hari Gope has already been declared hostile by the prosecution and other witnesses are close relatives of the informant. Arjun Singh P. W. 4 is a hearsay witness. 14. Learned counsel for the appellant has further submitted, that half of the prosecution case has been disbelieved by the learned trial Court by acquitting both the elder brother of the appellant, namely Yogendra Gope and younger brother of the appellant, namely Haren Gope and appellant has only been convicted on ground that the informant has alleged in the First Information Report that he fired upon the informant and other members of the family. As per the First Information Report, there are three injured persons but as per the prosecution case during trial, there are four injured persons. The injury report of the daughter of the informant and wife of appellant namely Buluna Gwalin @ Purna Devi has not been brought on record and only injury report of Karuna Devi, daughter of informant has been brought on record which has been proved and marked exhibit 3. Learned counsel for the appellant has further submitted that there is also vital contradiction with regard to the fact, whether the appellant fired from big gun or a small gun. 15. Learned counsel for the appellant has further submitted that there is also vital contradiction with regard to the fact, whether the appellant fired from big gun or a small gun. 15. Learned counsel for the appellant has further submitted that, in absence of framing of charge under the Arms Act or non production of the arms before the Court and non-examination of the investigation officer which has caused serious prejudice to the appellant, his conviction under Sections 324 and 307 of the Indian Penal Code cannot sustain in the eyes of law, as there is vital contradiction in the prosecution case. 16. Learned counsel for the appellant has further submitted that Police officer N. K. Singh, charge sheet witness Naval Kishore Singh and R.B. Singh, who are the police personnel’s, have not been examined in this case and as such the impugned judgment of conviction and order of sentence is bad in law, which has been passed, without scrutinizing the evidence available on record, on the basis of surmises and conjectures under the aforesaid Sections. Learned counsel for the appellant has submitted that impugned judgment of conviction and order of sentence is perverse as the same is not based on material available on record. Learned counsel for the appellant has further submitted, that charge has not been framed under the Arms Act, as such conviction of the appellant under Section 307 of the Indian Penal Code cannot sustain in the eyes of law in absence of charge or production of fire arms, where the allegation is that the injury has been caused by fire arm. 17. Heard, Learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecution Prosecutor. Learned counsel for the State has vehemently argued this case and has stated that the impugned judgment of conviction and order of sentence is sustainable in the eyes of law which has rightly been passed, on the basis of the material available on record by the learned Trial Court. Learned counsel for the State has submitted that heinous crime has been committed by the son-in-law against his father-in-law and other family members by using fire arm. Under such background, the appellant has been rightly convicted by the learned trial Court. 18. Heard, Learned counsel for the appellant, Ms. Amrita Banerjee assisted by Mr. Pankaj Verma, advocates and learned counsel for the State Mr. Under such background, the appellant has been rightly convicted by the learned trial Court. 18. Heard, Learned counsel for the appellant, Ms. Amrita Banerjee assisted by Mr. Pankaj Verma, advocates and learned counsel for the State Mr. Suraj Mohan, learned Additional Public Prosecutor, perused the First Information Report, charge, evidence of the prosecution witnesses, exhibits upto Exhibit-3, the statement of the appellant recorded under Section 313 Cr. P. C., defence witnesses and the impugned judgment, this Court is of the opinion that prosecution has come up with a case, where three persons namely Kripa Gope, his elder brother Yogendra Gope and other unknown person has fired on the informant Sona Ram Gope, Kiti Singh and daughter of the informant, Karuna Devi. The injury report of Karuna Devi has been proved and marked as exhibit 3 by Dr. R. K. Pathak of Bokaro General Hospital. From perusal of evidence of P. W.1 Batul Gope, who is son of the informant, it appears that he is hearsay witness, who came to the house after the occurrence was committed and injured has not disclosed about the name of the assailants. Guru Gope (nephew of the informant) has examined as P. W. 2, he is also hearsay witness and none of the persons standing at the place of occurrence has disclosed the name of the assailant. Ramu Gope (brother of the informant) has been examined as P.W. 3, he is a seizure witness, who has proved seizure of three used cartridges which has been marked as exhibit 1. The seizure list is of dt. 29.08.1985 at 8.30 p.m., where as the occurrence is of dated 27.08.1985 at 8.00 p.m. 19. Arjun Singh is another hearsay witness, who has been examined as P. W.4. Smt. Purna Devi (wife of the appellant and daughter of the informant) has been examined as P. W.5. The prosecution has claimed her to be one of the injured of the case but her deposition suggests, that from perusal of injury report of the doctor, who has examined her, no injection was given nor she was admitted but only the tablets were given to her nor any surgery was made. She has stated that she was feeling weakness for which she has been treated for a month. Smt. Karuna Devi, another daughter of the informant and injured of the case has been examined as P. W. 6. She has stated that she was feeling weakness for which she has been treated for a month. Smt. Karuna Devi, another daughter of the informant and injured of the case has been examined as P. W. 6. This witness has stated that Kripa Gope has fired twice from small gun due to which Bulna Gwalin wife of the appellant and daughter of informant, Kiti Singh and her father have sustained injuries. She has further stated, that there is a dispute between her father and the appellant. This witness has claimed, that she has stated before the police officer, that she has seen Kripa Gope firing on Sona Ram Gope. Sona Ram Gope, informant of the case has been examined as P. W. 7, this witness has stated during examination-in-chief that on 27.08.1985 at around 8.00 p.m., he was in the house of his brother Kiti Gope, which was adjacent to his house, when he heard the sound of firing, then he came to the house and saw Kiti Singh has fallen on the ground because of fire arm injury and Karuna Devi and Purna Devi were standing there. Thereafter, another fire was made upon him which hit on his left thigh and right leg below the knee. The informant has claimed that all of four persons have sustained injuries. Karuna Devi was pregnant, and because of the firing her pregnancy was terminated. This witness has further stated that firing was made by Kripa Gope, who is his son in law, being husband of his daughter Purna Devi. 20. Dr. R. K. Pathak, has been examined as P. W.8, he has examined Karuna Devi and found two injuries:- (i). multiple superficial splinters under the skin of left arm. (ii). multiple splinters on left side of chest with surgical emphysema of left side of chest. Doctor has found that injury no. (i) was simple in nature caused by fire arm and injury no. (ii), also caused by fire arm, was grievous in nature and proved the injury report and marked as exhibit 3. Doctor has also admitted that exhibit 3, is not the original injury report, but it is true copy noted down from the original report but the doctor was not present when it was copied and does not bear the signature of Dr. Dasgupta. Doctor has also admitted that exhibit 3, is not the original injury report, but it is true copy noted down from the original report but the doctor was not present when it was copied and does not bear the signature of Dr. Dasgupta. The doctor has proved the injury report, which has mentioned the date of examination as 28.08.1985 at 9.20 a.m. The doctor has disclosed, the age of injury is less than 24 hours but more than 12 hours. Kiti Singh, another injured in this case, has been examined as P. W.9. This witness has stated that at around 8.00 p.m. in the night on 26.08.1985 while he was in the house of Sona Ram Gope talking with daughter of the informant, at that time firing was made upon him which caused injury on the hand and thigh, subsequently the firing was made on Purna and Karuna Gope and after hearing the sound of firing, Sona Ram Gope came, who was also fired upon by the appellant and has also sustained injury. Hari Gope has been examined as P. W. 10 and he has been declared hostile by the prosecution. 21. From perusal of the evidence there are vital contradictions in the evidence of the prosecution evidences. The prosecution has not established, that, who sustained injury first. As per the fardbeyan, it is the informant Sona Ram Gope, who has sustained the injury first, thereafter, his brother and daughter have sustained injury. While as per P. W. 9 Kiti Singh it is he, who sustained injury first, thereafter, the daughter of Sona Ram Gope and later on Sona Ram Gope has sustained injury. From perusal of the evidence of the informant, he was not present in the house when the firing was made but in the fardbeyan, the informant has stated that he was present in the house when the appellant made first firing at his house. There are vital contradictions with regard to the weapon used by the appellant also. Some of the witnesses have said that the appellant has fired from a large gun but some of the witnesses have said that it was fired from small gun. There are vital contradictions with regard to the weapon used by the appellant also. Some of the witnesses have said that the appellant has fired from a large gun but some of the witnesses have said that it was fired from small gun. The prosecution has developed its case, as the informant has stated in his fardbeyan, that three persons were injured namely Sona Ram Gope, Kiti Singh and Karuna Devi whereas the prosecution has come up with an exaggerated version during trial, where it has been stated that four persons namely Sona Ram Gope, Kiti Singh, Karuna Devi and wife of the appellant, Bulana Devi @ Purna Devi are injured of this case. From perusal of the evidence of the doctor, it appears that original injury report has not been brought on record and from perusal of the date of examination i.e. 28.08.1985 at 8.30 a.m. doctor has opined that injury was caused within 24 hours but not less than 12 hours. From scrutinizing the evidence, it is clear that the occurrence took place on 27.08.1985 at 8.00 p.m. 22. From perusal of the evidence of the doctor P. W.8 Dr. R. K. Pathak particularly in paragraph 4, where he has admitted that exhibit 3 is not original injury report, rather that it has been noted down from the original but he was not present when it was photocopied and it does not bears the signature of Dr. Dasgupta nor the serial no. or date of injury from register has been mentioned in this copy. Thus, it is apparent that this injury report cannot be relied upon which is not original and the doctor has some doubt about authenticity and genuineness of the injury report as the serial number and the date and signature of the doctor are not available on the said injury report. 23. Under the aforesaid background considering the vital contradictions and non-examination of the investigating officer of this case which has caused certain prejudice to the appellant, as the attention of this Court could not be drawn upon with regard to the place of occurrence and manner occurrence, the injury caused upon the victims, and as such serious prejudice has been caused to the appellant and the conviction of the appellant under Sections 324 and 307 cannot sustain in the eyes of law as there is lacunae in the prosecution case. As per the evidence and the fardbeyan, there are vital contradictions and the prosecution case cannot be accepted to be true as those are not consistent. The prosecution has failed to explain the seizure list which shows that used cartridges were recovered from the place of occurrence which cannot be fired from the same gun and also non-examination of the forensic expert and investigating officer have caused serious prejudice to the appellant and as such the appellant is acquitted of the charge and conviction under Sections 324 and 307 of the Indian Penal Code by giving benefit of doubt. 24. From the aforesaid facts, we are of the considered view that the impugned judgment of conviction dated 10.06.2003 and order of sentence dated 17.06.2003, in Sessions Trial No.258 of 1989 passed by learned Additional Sessions Judge, Fast Track Court-IV, Bokaro, is not sustainable in the eyes of law and thus, the impugned judgment of conviction and order of sentence is hereby set aside. 25. The appellant is already on bail and as such, he is discharged from the liability of the bail bond. 26. Accordingly, the instant criminal appeal stands allowed. 27. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.