JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction, dated 20.01.2004 and order of sentence, dated 21.01.2004, passed by Additional Sessions Judge, Fast Track Court- III, Garhwa, in Sessions Trial No. 400 of 1995, whereby the appellants have been convicted for offence committed and punishable under Sections 307 and 341 of the Indian Penal Code but have been acquitted from the charge under Sections 506 of the Indian Penal Code and 27 of the Arms Act. The learned Trial Court has awarded rigorous imprisonment for seven years under Section 307 of the Indian Penal code and simple imprisonment for one month under Section 341 of the Indian Penal Code to both the appellants. All the sentences are directed to run concurrently. The period already undergone in custody during trial will be set off under Section 428 Cr.P.C. 2. The prosecution case is based upon the fardbeyan of Parmod Kumar Ojha (P.W. 3) recorded by A.S.I. Gopal Singh of Kandi outpost, on 28.11.1994 at 9.00 A.M., at State dispensary, Kandi. The informant has alleged yesterday, on 27.11.1994 (Sunday) at around 9.30 A.M., when the informant came out of his house to go to his ‘khalihaan’, he saw that Kaushalya Devi, wife of Ramchandra Ojha was taking away a bundle of paddy from the ‘khalihaan’ of the informant. The informant stopped her and snatched the bundle of paddy from the hand of Kaushalya Devi and kept it in his ‘khalihaan’. In the meantime, Ramchandra Ojha, the husband of Kaushalya Devi, came there and started abusing the informant by saying, that the paddy belongs to him, due to which altercation took place and thereafter, the informant came to his door. After some time Kamlesh Kumar Ojha, son of Ramchandra Ojha came with a gun and shot the informant from a distance of 30 metres, out of which two pillets have hit the informant near the left eye and left ear, due to which the informant fell down. In the meantime, Achyutanand Dubey and Babu Dubey came there and intervened into the matter. It is alleged, that Kamlesh Kumar Ojha, on instigation by his father, has fired upon the informant with intention to kill him. Thereafter, the incident was heard by the elder brother of the informant, who brought him for treatment at Kandi Primary Health Centre, where, the informant is under treatment. 3. It is alleged, that Kamlesh Kumar Ojha, on instigation by his father, has fired upon the informant with intention to kill him. Thereafter, the incident was heard by the elder brother of the informant, who brought him for treatment at Kandi Primary Health Centre, where, the informant is under treatment. 3. On the basis of the fardbeyan of the informant, the police has registered Majhiaon P.S. Case No. 58 of 1994, dated 29.11.1994, under Sections 341, 323, 506, 307/34 of the Indian Penal Code and 27 of the Arms Act, consequent to G.R. No. 642 of 1994. 4. After investigation, the police submitted charge sheet against the appellants vide charge sheet No. 31 of 1995, dated 31.05.1995, under Sections 341, 323, 506, 307/34 of the Indian Penal Code and 27 of the Arms Act. 5. The cognizance of the offence has been taken vide order dated 14.06.1995 and the case has been committed to the court of Sessions vide notification no. 275 dated 29.07.1995. 6. The charge has been framed against the appellants Kamlesh Kumar Ojha and Ramchandra Ojha on 16.08.1999, under Sections 307, 506, 341 of the Indian Penal Code and separately against the appellant Kamlesh Kumar Ojha under Section 27 of the Arms Act, to which they have pleaded their innocence and thus they have been put under trial. 7. The prosecution has examined altogether six witnesses, apart from documentary evidences to prove its case beyond all reasonable doubts. 8. Bishawanath Ram has been examined as P.W. 1, Achyutanand Dubey has been examined as P.W. 2, Pramod Kumar Ojha, informant of the case, has been examined as P.W. 3, Binod Kumar Ojha, has been examined as P.W. 4, Ram Swarth Ojha, father of the informant has been examined as P.W. 5, Dr. Kishore Chandra Choudhary, has been examined as P.W. 6, who has examined the victim-cum-informant. The formal F.I.R. has been proved and marked as Exhibit- 1, the signature of the informant, on the First Information Report, has been proved and marked as Exhibit- 2, fardbeyan has been proved and marked as Exhibit- 3 and the injury report of the informant has been proved and marked as Exhibit- 4. The defence has also examined two witnesses, Awadhesh Ram as D.W. 1 and Rameshwar Nath Shukla as D.W. 2. 9. The defence has also examined two witnesses, Awadhesh Ram as D.W. 1 and Rameshwar Nath Shukla as D.W. 2. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C. on 22.12.2003, to which the appellants have pleaded, that a false case has been instituted against them and they are innocent and appellant Ram Chandra Ojha has stated that as his wife and daughter have been assaulted by Pramod Ojha and to save himself, Pramod Ojha has filed this case. Similar is the statement of Kamlesh Kumar Ojha, that Pramod Ojha has assaulted his mother and sister and to save himself, a false case has been instituted against them. 10. After hearing the parties and on perusal of the record, the learned Trial Court has convicted the appellants under Sections 307 and 341 of the Indian Penal Code by the impugned judgment of conviction and order of sentence. The learned Trial Court has acquitted the appellants of the charge under Sections 506 of the Indian Penal Code and 27 of the Arms Act. Being aggrieved and dissatisfied, the appellants have preferred the present criminal appeal assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellants, Mr. P.P.N. Roy, Senior Advocate assisted by Pandey Ashok Nath Roy and Sahbaj Jama, Advocates. Learned Senior counsel 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 appellants has further submitted that the conviction of the appellant under Section 307 of the Indian Penal Code is not sustainable in the eyes of law, as the injuries found on the person of the victim are simple in nature and not on the vital parts of the body, rather, the first injury is on left orbital area of the eye, which is different from the eye ball and the second injury, which is caused on the left ear of the informant, those injuries were not dangerous to the life nor the doctor has stated, that those are sufficient to cause death of the a person. Learned counsel for the appellants has further submitted, that the doctor has examined the injured and has proved the injury report, which has been marked as Exhibit- 4 and has categorically stated, that the injuries were simple in nature and because of the dispute prevailing between the agnates, the present case has been filed. Learned counsel for the appellants has further submitted, that Achyutanand Dubey is the own brother-in-law of informant and other witness named in the First Information Report namely Babu Dubey has not been examined in this case. Learned counsel for the appellants has submitted, that investigating officer of the case has not been examined, due to which serious prejudice has been caused to the appellants, as the appellants could not get an opportunity to cross-examine him, to elucidate the facts to prove their innocence, rather in a mechanical manner an F.I.R. has been lodged by the informant to protect himself, as he has assaulted mother and sister of Kamlesh Ojha and has some previous enmity with the appellants and the learned Trial Court has convicted the appellants without scrutinizing the evidence available on record, as finding is perverse in nature. Learned counsel for the appellants has further submitted, that the appellants may be acquitted of the charge and conviction under Sections 307 and 341 of the Indian Penal Code, but they have been acquitted by the Learned Trial Court from the charge under Sections 506 of the Indian Pena l Code and 27 of the Arms Act. Learned counsel for the appellants has placed one judgment, as reported in 1996 CRI. L. J. 2465 in case of B.L. Hansaria Vs. K. Venkataswami at paragraph 14, where the Hon’ble Supreme Court has held that: “even though the pellets had struck the head, intention or knowledge to cause death was present” but this was not accepted by the Hon’ble Supreme Court on the ground that mens rea for causing such injury was lacking. The Hon’ble Supreme Court has further held that: “ingredients of Section 307 are not satisfied qua Sanjuben. Instead, the offence committed would attract Section 324. As the injuries in question had been caused, as per the evidence of P.W.- 7 herself, by appellant no. 9 Shivrajbhai (accused No. 11), we convict him under Section 324 and award R.I. for one year and a fine of Rs. 1,000/- in default, S.I. for one month, as sentence.” 12. Instead, the offence committed would attract Section 324. As the injuries in question had been caused, as per the evidence of P.W.- 7 herself, by appellant no. 9 Shivrajbhai (accused No. 11), we convict him under Section 324 and award R.I. for one year and a fine of Rs. 1,000/- in default, S.I. for one month, as sentence.” 12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has vehemently argued the case and supported the impugned judgment of conviction and order of sentence and submitted, that the impugned judgment is well founded, on the basis of the material available on record. Learned counsel for the State has further submitted, that the doctor (P.W. 6) has proved exhibit- 4, which shows that the injury has been caused by fire arm, though the injury is simple in nature but the ingredients of Section 307 of the Indian Penal Code, as the appellant has fired from the single barrel gun with intention to kill the informant is sufficient and as such, the impugned judgment of conviction and order of sentence is justified, which is based upon well founded materials available on record. 13. Heard, learned counsel for the appellants, Mr. P.P.N. Roy, Senior Advocate assisted by Pandey Ashok Nath Roy and Sahbaj Jama, Advocates and learned counsel for the State, Mr. 13. Heard, learned counsel for the appellants, Mr. P.P.N. Roy, Senior Advocate assisted by Pandey Ashok Nath Roy and Sahbaj Jama, Advocates and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor and from perusal of the record including the First Information Report, framing of the charge, evidence of six prosecution witnesses, Exhibits- 1 to 4 and the statement of the appellants recorded under Section 313 Cr.P.C., the evidence of two defence witnesses and the impugned judgment of conviction and order of sentence passed by the learned Trial Court, this court is of the opinion, that the judgment placed by the learned Senior Counsel is not applicable in this case as the same judgment was passed in a case of TADA, which was not appreciated by the Hon’ble Supreme Court, where firing was made to frighten the society but in the present case, the appellants named in the First Information Report has fired, after the hot exchange of words, by means of a single barrel gun with intention to kill the informant, which hit on the left eye and near the left ear and as such, the ratio laid down in case of B.L. Hansaria and K. Venkataswami as reported in 1996 CRI. L. J. 2465 is not applicable in the present case. This Court is also of the opinion that charge has been framed against both the appellants under Section 307 of the Indian Penal Code but the allegation of firing from single barrel gun is made out only against Kamlesh Kumar Ojha, who is the son of Ramchandra Ojha and the allegation against Ramchandra Ojha is that he was instigating the accused person. Only on the basis of instigation, charge under Section 307 of the Indian Penal Code against Ramchandra Ojha cannot be proved and as such, charge under Section 307 of the Indian Penal Code is defective, so far conviction of Ramchnadra Ojha is concerned, the same cannot be proved against him and as such, Ramchandra Ojha is acquitted from the charge and conviction under Section 307 of the Indian Penal Code. This Court is also of the opinion, from perusal of the evidence of the prosecution witness Bishawanath Ram, who has been examined as P.W. 1, and has proved the formal F.I.R. as Exhibit- 1 but he has denied during the cross-examination, that the same has been written in his presence. This Court is also of the opinion, from perusal of the evidence of the prosecution witness Bishawanath Ram, who has been examined as P.W. 1, and has proved the formal F.I.R. as Exhibit- 1 but he has denied during the cross-examination, that the same has been written in his presence. The injured has sustained fire arm injury on the left orbital area of the left eye, which is different part from eye ball as stated by the doctor (P.W. 5) and other injury on the left ear and as such, no vital parts of the body are involved. Furthermore, there is nothing on record to suggest, that those injuries were caused by fire arm injury by producing the X- Ray report or pillets, and because that the learned Trial Court has already acquitted the appellants under Section 27 of the Arms Act and the State or the informant has not preferred any acquittal appeal before this court. 14. So far the conviction of the appellants under Section 341 of the Indian Penal Code is concerned, the same is affirmed and upheld by this Hon’ble Court as passed by the learned Trial Court. Achyutanand, the own brother-in-law of the victim, has been examined as P.W. 2. This witness has supported the prosecution case but has denied his relationship with the accused and the informant. This witness has further stated during cross-examination, in paragraph- 3, that no second round firing was made. From the evidence of this witness, it seems that this witness is not reliable as he tried to suppress a number of evidence by saying, that he has no knowledge about the persons, who were present at the place of occurrence. Pramod Kumar Ojha who has proved his signature, on the First Information Report, which has been marked as Exhibit- 2 and signature of A.S.I. Gopal Singh on fardbeyan, which has been marked as Exhibit- 3. This witness has stated, that he was examined by the doctors at Daltonganj and Ranchi also, but those injury reports have not been brought on record. This witness has further stated, that the accused persons have fired from the illegal arms but the said arms was not found nor the conviction of the appellants was held by the learned Trial Court under Section 27 of the Arms Act. This witness has further stated that firing was made once by gun by Kamlesh Kumar Ojha. This witness has further stated, that the accused persons have fired from the illegal arms but the said arms was not found nor the conviction of the appellants was held by the learned Trial Court under Section 27 of the Arms Act. This witness has further stated that firing was made once by gun by Kamlesh Kumar Ojha. Binod Kumar Ojha is the brother of the informant. He is a hearsay witness. Ram Swarth Ojha is the father of the informant who has been examined as P.W. 5. He has stated that, he was on the terrace when the occurrence took place and he saw the occurrence from the terrace. He has further stated in his cross-examination, at paragraph- 5, that the village comprises of 400 houses but none of the villagers came to the place of occurrence nor will come to adduce as a witness to the case. This witness has categorically stated in paragraph- 11, of his cross-examination, that the son, who has sustained injury was initially in the job of police, who was removed from the police job by dismissal. This witness has further stated, that his son has sustained injury near the orbital area of the eyes and near the left ear and his son could see from both the eyes although has sustained injuries. Dr. Kishore Chandra Choudhary has been examined as P.W. 6 and has proved the injury report of the informant, which has been marked as Exhibit- 4, where he has found the injuries to be simple in nature. 15. Considering all these aspects of the matter, that no independent witnesses have been examined, nor the investigating officer has been examined and the injury report suggests that the informant has not sustained any injury on his eye sight and as also no injury was found on the vital parts of the body and as such, the conviction of the appellant, Kamlesh Kumar Ojha, under Section 307 of the Indian Penal Code, cannot sustain in the eyes of law, which is being converted to Section 324 of the Indian Penal Code but he is found guilty to be convicted under Section 341 of the Indian Penal Code. Under the aforesaid circumstances, the conviction of the appellant, Kamlesh Kumar Ojha under Section 307 of the Indian Penal Code cannot sustain in absence of any material available on record. Under the aforesaid circumstances, the conviction of the appellant, Kamlesh Kumar Ojha under Section 307 of the Indian Penal Code cannot sustain in absence of any material available on record. Thus, the conviction of Kamlesh Kumar Ojha is converted to Section 324 of the Indian Penal Code from Section 307 of the Indian Penal Code as neither the fire arm/pillets have been produced in the Learned Trial Court nor the Investigating Officer has been examined in this case. 16. Ramchandra Ojha is also convicted under Section 341 of the Indian Penal Code. As Ramchandra Ojha has remained in custody for more than five months, his sentence of simple imprisonment for one month under Section 341 of the Indian Penal Code has already been served out. Kamlesh Kumar Ojha was in custody for six months and seven days. The sentence awarded to Kamlesh Kumar Ojha under Section 307 of the Indian Penal Code is modified under Section 324 of the Indian Penal Code and awarded rigorous imprisonment for one year with a fine of Rs. 25,000/- payable to the injured within eight weeks from today. If Kamlesh Kumar Ojha fails to pay the fine, then he will serve a sentence of three years under Section 324 of the Indian Penal Code and he will also serve the sentence as awarded under Section 341 of the Indian Penal Code. The period already remained in custody by the appellant shall be set off under Section 428 Cr.P.C. 17. Since Ramchandra Ojha has already served out his sentence, he is discharged from the liability of his bail bond. The bail bond of Kamlesh Kumar Ojha is hereby cancelled and he is directed to surrender before the learned Trial Court forthwith to serve the sentence as stated above and to pay the sum of Rs. 25,000/- to the victim, within a period of eight weeks from the date of production of a copy of this judgment and served out the sentence as stated above. 18. The trial court is directed to issue notice to the informant, in case, the informant is not alive, then to his wife or legal heirs and to pay the amount of Rs. 25,000/- to the victim or his legal heirs, if deposited by the appellant Kamlesh Kumar Ojha as per direction of this Court. 18. The trial court is directed to issue notice to the informant, in case, the informant is not alive, then to his wife or legal heirs and to pay the amount of Rs. 25,000/- to the victim or his legal heirs, if deposited by the appellant Kamlesh Kumar Ojha as per direction of this Court. Thus, the impugned judgment of conviction, dated 20.01.2004 and order of sentence, dated 21.01.2004, passed by Additional Sessions Judge, Fast Track Court- III, Garhwa, in Sessions Trial No. 400 of 1995 in connection with Majhiaon P.S. Case No. 58 of 1994, consequent to G.R. No. 642 of 1994, is hereby affirmed as stated above with modification in the sentence. 19. Under the aforesaid circumstances, the appeal is partly allowed with modification. 20. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal partly allowed