JUDGMENT : Heard, learned counsel for the appellants, Miss Amrita Banerjee, assisted by Mr. A.K. Sahani, Advocates and learned counsel for the State, Mrs. Niki Sinha, learned Additional Public Prosecutor. 2. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 11.09.2003, passed by learned Additional Sessions Judge, F.T.C. No.2, Deoghar, in Sessions Case No. 249 of 2002, whereby, all the above named appellants have been convicted for the offence committed and punishable under Section 307/34 of the Indian Penal Code and appellant, Marwadi Mahato @ Marwadi Yadav has further been convicted under Section 27 of the Arms Act and awarded Rigorous Imprisonment for five years for the offence committed and punishable under Section 307/34 of the Indian Penal Code with fine of Rs.1000/-and in default of payment of fine to undergo further simple imprisonment for one month and appellant, Marwadi Mahato @ Marwadi Yadav has further been awarded Rigorous Imprisonment for three years for the offence committed and punishable under Section 27 of the Arms Act and all the sentences are directed to run concurrently. During pendency of the appeal appellant no.2, Bhim Mahato @ Bhim Yadav has died and no leave application has been preferred by legal heirs or relatives of the deceased appellant, Bhim Mahato @ Bhim Yadav within 30 days of his death and as such, his case has already been abated as dismissed. The present criminal appeal is pending with respect to remaining five appellants. 3. The prosecution case, is based upon, fardbeyan of the informant, Khiju Mahto (P.W.10), recorded by Ram Narayan Prasad Yadav, Sub-Inspector of police on 17.03.2002 at 19.00 Hrs., at Sadar Hospital, Deoghar wherein, the informant has alleged, that today(Sunday) at 12.30 Hrs. he was sitting under a Jack fruit tree at village Simra Basmatta, in the meantime, Marwadi Mahato, Bhim Mahato and Sudhan Mahato arrived there and took him near the Banyan tree and told him that their dispute with Nafar Mahto, with respect to Banyan tree situated at Plot No.601, Mauja-Dumar Kundi, Tola-Basmatta has been resolved and now the Banyan tree is under the share of said Nafar Mahato, which has been purchased by you and you may carry it. On this pretext, the informant called his six labourers to carry the said tree. On this pretext, the informant called his six labourers to carry the said tree. In the meantime, Sudhan Mahato, Kaleshwar Mahato and Dilip Mahato also came there and all the persons started abusing the informant and when the informant objected, then accused Bhim Mahato ordered to kill him. Upon which Marwadi Mahto with intention to kill, fired from pistol upon the informant, which hit on the left side of back at PAKHUR and blood started oozing from it. The informant has claimed that this occurrence has been witnessed by co-villagers namely, Nakul Mahto, Amrit Mahto, Jagdish Mahto and Ashok Mahto along with six laboureres, who brought him to Sadar Hospital, Deoghar for treatment. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Jasidih, P.S. Case No. 36 of 2002, dated 18.03.2002, under Sections 504/307/34 of the Indian Penal Code and 27 of the Arms Act, against six named accused persons namely, Marwadi Mahato @ Marwadi Yadav, Bhim Mahato @ Bhim Yadav, Chhotan Mahato @ Chhotan Yadav, Kaleshwar Mahato @ Kaleshwar Yadav, Dilip Mahato @ Dilip Yadav and Sudhan @ Sudan Mahato @ Sudan Yadav. 5. After completion of the investigation, the police has submitted charge sheet vide charge sheet no. 70 of 2002, dated 30.06.2002, under Sections 504/307/34 of the Indian Penal Code and 27 of the Arms Act against all the named accused/appellants. 6. The cognizance of the offence has been taken vide order dated 06.07.2002 and the case has been committed to the Court of Sessions vide order dated 29.11.2002. 7. The learned trial Court has framed charge against all the six named accused persons, on 25.01.2003, under Sections 307/34 and 504/34 of the Indian Penal Code and accused, Marwadi Mahato @ Marwadi Yadav was further separately charged under Section 27 of the Arms Act, to which the accused persons have pleaded there innocence and claimed to be tried and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether twelve prosecution witnesses and also exhibited a number of documentary evidence up to Exhibit-9. 8. The prosecution, in order to prove its case, has examined altogether twelve prosecution witnesses and also exhibited a number of documentary evidence up to Exhibit-9. Dilip Yadav has been examined as P.W.1, Nafar Mahto has been examined as P.W.2, Jagdish Mahto has been examined as P.W.3, Bhagwat Mandal has been examined as P.W.4, Nakul Mahto has been examined as P.W.5, Amrit Mahto has been examined as P.W.6, Ashok Mahto has been examined as P.W.7, Pinku Mandal has been examined as P.W.8, Dr. Raman Kumar (Medical Officer), who has examined the victim, has been examined as P.W. 9 and has proved the injury report, which has been marked as exhibit-1, Khiju Mahto, informant of this case, has been examined as P.W.10, and has been declared hostile by the prosecution. Shibu Mandal has been examined as P.W.11 and Dilip Prasad Singh, an advocate clerk being a formal witness, has been examined as P.W.12, who has proved the formal First Information Report with signature of the then Officer-In-Charge Jasidih Police Station, which has been marked as Exhibit-2 and has also proved the fardbeyan of the informant(P.W.10), Police requisition for Medical examination of injured and entire case diary, which have been proved and marked as Exhibit-3, 4 and 5 (case diary has been wrongly exhibited) respectively. The prosecution has also exhibited a number of other documents. The certified copy of the order dated 29.03.1962, passed in Title Execution case no. 18 of 1961, has been proved and marked as Exhibit-6, certified copy of Bansgari Parwana of Title Execution case no.180 of 1961, has been proved and marked as Exhibit-7, certified copy of final decree of Title Suit no.66 of 1954 has been proved and marked as Exhibit-8 and certified copy of compromise petition filed in Title Suit no.66 of 1954 has been proved and marked as Exhibit-9. 9. After closure of the prosecution evidence, the statement of the accused/appellants have been recorded under Section 313 Cr.P.C., on 16.07.2003 and 06.08.2003, to which the appellants have denied their involvement in this case and they have claimed themselves to be innocent. No defence witness has been examined nor any documentary evidence has been adduced on behalf of defence. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. No defence witness has been examined nor any documentary evidence has been adduced on behalf of defence. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellants before this Hon’ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Miss Amrita Banerjee, assisted by Mr. A. K. Sahani, Advocates. Learned counsel for the appellants 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 submitted, that the Investigating Officer has not been examined in this case and as such, serious prejudice has been caused to the appellants because of non-examination of the Investigating Officer as the appellants could not get an opportunity to cross-examine him, with respect to manner of occurrence, place of occurrence and the injury sustained by the informant, as the Informant has not supported the prosecution case and has been subsequently, declared hostile by the prosecution. Learned counsel for the appellants has further submitted, that all the five appellants have been convicted for offence committed and punishable under Section 307/34 of the Indian Penal Code although there are no materials against these five appellants. Learned counsel for the appellants has buttressed his arguments by showing the evidence brought on record including the fardbeyan of the informant and the depositions of the prosecution witnesses. Learned counsel for the appellants has further submitted, that on the order of Bhim Mahato @ Bhim Yadav, it is alleged that appellant, Marwadi Mahato @ Marwadi Yadav has fired from his country made pistol, which hit on the back of the left side of chest of the informant. The informant has named, Marwadi Mahato in fardbeyan but while deposing in the Court as P.W.10, he has categorically stated that, he has not seen, who has fired upon him. The informant has named, Marwadi Mahato in fardbeyan but while deposing in the Court as P.W.10, he has categorically stated that, he has not seen, who has fired upon him. Learned counsel for the appellants has further submitted, that Bhim Mahato @ Bhim Yadav has died during pendency of appeal and his appeal has already been abated and as such, there are no legal materials so far, Chhotan Mahto @ Chhotan Yadav, Kaleshwar Mahato @ Kaleshwar Yadav, Dilip Mahato @ Dilip Yadav and Sudhan @ Sudan Mahato @ Sudan Yadav, are concerned that they have also common intention to commit this offence. Learned counsel for the appellants has further submitted, that so far the case of Marwadi Mahato is concerned, his case has not been supported by the informant himself and the informant has entered into compromise with the appellants, which is evident from the evidence of Khiju Mahato, informant, P.W.10, who has also stated that, he did not want to pursue the case. Learned counsel for the appellants has relied upon the judgment, as reported in (2014) 6 SCC 466 , Narinder Singh and Others Versus State of Punjab and Another, where Hon'ble Apex Court held that:- “only because FIR/charge-sheet incorporates provisions of S.307 IPC would not, by itself, be a ground to reject the petition under S. 482 CrPC and refuse to accept the settlement between the parties.” Learned counsel for the appellants has submitted that, the First Information Report has been lodged under Section 307 of the Indian Penal Code but in view of judgment cited above, the impugned judgment of conviction and order of sentence is fit to be set aside, in view of the compromise entered into between the parties. Learned counsel for the appellants has further submitted, that because of non-examination of Investigation Officer nor any recovery of pellet from the person of victim coupled with the fact that victim, Khiju Mahato(P.W.10) has not supported the prosecution case, the appellants are entitled for benefit of doubt. Learned counsel for the appellants has further submitted, that there is no ballistic report on record to establish that said injury caused upon informant is a firearm injury. Learned counsel for the appellants has further submitted, that nothing has been seized from accused persons because of which there is no seizure list on record and as such, the appellants are entitled for benefit of doubt. 12. Learned counsel for the appellants has further submitted, that nothing has been seized from accused persons because of which there is no seizure list on record and as such, the appellants are entitled for benefit of doubt. 12. Heard, learned counsel for the State, Mrs. Niki Sinha, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of materials available on record. Learned Counsel for the State has submitted, that though Investigating Officer has not been examined in this case, but no prejudice has been caused to the appellants. Learned counsel for the State has further submitted, that the informant has named, Marwadi Mahato @ Marwadi Yadav, in the First Information Report, who has fired from country made pistol after taking out from his waist, on the order of Bhim Mahato @ Bhim Yadav, causing injury on the back of left side of chest of the informant, Khiju Mahato(P.W.10) and the injury report has been proved by Dr. Raman Kumar(P.W.9), who has examined the injured and has categorically stated that, injury has been caused by fire-arm though nature of injury has not been assigned by the doctor, as because the patient was referred for X-Ray examination and the same was not brought before him. Learned counsel for the State has further submitted, that all the prosecution witnesses can be categorises into two parts i.e. Dilip Mahato @ Dilip Yadav(P.W.1), Bhagwat Mandal(PW.4), Pinku Mandal(P.W.8) and Sibu Mandal(P.W.11) are labourers of the informant and eye witnesses to the occurrence, on one side and Nafar Mahato(P.W.2), Jagdish Mahato(P.W.3), Nakul Mahato(P.W.5), Amrit Mahato(P.W.6) and Ashok Mahato(P.W.7) on the other side as they are eye witnesses to the occurrence and the name of these persons have been mentioned in the First Information Report of the informant. Learned counsel for the State has further submitted, that all the eye witnesses have supported the prosecution case that on the order of Bhim Mahato@ Bhim Yadav, Marwadi Mahato(appellant) has fired from country made pistol after taking out from his waist, which caused injury upon the informant, Khiju Mahato though informant, Khiju Mahato has not taken his name while depositing as P.W.10, as Khiju Mahato, informant has entered into a compromise during pendency of the case but the act done by appellant, Marwadi Mahato @ Marwadi Yadav is sufficient to prove that, he has used fire-arm, in contravention of section 5 of the Arms Act, which shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Learned counsel for the State has further submitted, that the appellant, Marwadi Mahto(appellant) on the order of Bhim Mahato @ Bhim Yadav has fired upon informant, Khiju Mahato and such firing can only be made with intention to kill a person and as such, Marwadi Mahato @ Marwadi Yadav has been rightly convicted under Section 307 of the Indian Penal Code, apart from 27 of the Arms Act, since Bhim Mahato @ Bhim Yadav has died during pendency of the appeal and his appeal has already been abated. Under the aforesaid circumstances, learned counsel for the State has further submitted, that learned trial Court has rightly passed the impugned judgment convicting all the six named accused persons under Section 307/34 of the Indian Penal Code and Marwadi Mahato @ Marwadi Yadav also under Section 27 of the Arms Act and as such, the impugned judgment of conviction and order of sentence does not warrant any interference from this Hon’ble Court at this stage. 13. Heard, learned counsel for the appellants, Miss Amrita Banerjee, assisted by Mr. A. K. Sahani, Advocates and learned counsel for the State, Mrs. Niki Sinha, learned Additional Public Prosecutor and perused the records, i.e First Information Report, framing of the charge, evidence of twelve prosecution witnesses, nine prosecution exhibits and the statement of the appellants recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the materials available on records. Niki Sinha, learned Additional Public Prosecutor and perused the records, i.e First Information Report, framing of the charge, evidence of twelve prosecution witnesses, nine prosecution exhibits and the statement of the appellants recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the materials available on records. It is true that informant has alleged in his fardbeyan that on the order of Bhim Mahato@ Bhim Yadav, Marwadi Mahato @ Marwadi Yadav has fired from country made pistol taking out from his waist, which hit on the informant on his back of the left side of the chest causing bleeding injury and the injury report has been proved and marked as exhibit-1 by Medical Officer, Dr. Raman Kumar(P.W.9), who found, one penetrating wound 2 centimeter x 1 centimeter area on back of left side of chest with bevelled margin with surrounding multiple points of burning splinter in 6”x12” area, but the informant, Khiju Mahato has not supported his case during trial, while examining himself as P.W.10 because of compromise entered between the parties and thus, Khiju Mahato(P.W.10), informant has been declared hostile by the prosecution. This Court has to look into the evidence of hostile witness with care and caution. From perusal of the evidence of the informant, Khiju Mahato (P.W.10), commission of the crime and injury sustained by the informant has been supported by the informant himself as P.W.10, but allegation of firing against Marwadi Mahato(appellant) has not been supported by the informant while examining as P.W.10 but evidence of P.W.1 to P.W.8 and P.W.11 have supported the prosecution case as eye witnesses and have specifically stated during trial that, it was Marwadi Mahato, who had fired from country made pistol, which hit on the back of the left side of chest of the informant, causing bleeding injury. This Court has also perused the evidence brought on record. This Court has also perused the evidence brought on record. The ingredients for convicting an accused with the aid of Section 34 of the Indian Penal Code is not properly proved as furtherance of common intention is lacking because, as per the prosecution case, three persons were present there initially namely, Marwadi Mahato @ Marwadi Yadav, Bhim Mahato@ Bhim Yadav and Sudhan @ Sudan Mahato @ Sudan Yadav but other three persons namely, Chhotan Mahato, Kaleshwar Mahato and Dilip Mahato came there subsequently, but none of these appellants except Marwadi Mahato had knowledge that Marwadi Mahato has kept one fire-arm and has intention to fire upon informant, Khiju Mahato, as most of the accused came after they were called by Marwadi Mahato. Under the aforesaid circumstances, these appellants namely, Chhotan Mahato @ Chhotan Yadav, Kaleshwar Mahato @ Kaleshwar Yadav, Dilip Mahato @ Dilip Yadav and Sudhan @ Sudan Mahato @ Sudan Yadav are acquitted of the charge and conviction under Section 307/34 of the Indian Penal Code. They are on bail, they are discharged from the liabilities of their bail bonds. So far the appellant, Marwadi Mahato @ Marwadi Yadav is concerned, he has fired from country made pistol taking out from his waist, which hit on back of the left side of chest of the informant and injury report has been brought on record as Exhibit-1, proved by Dr. Raman Kumar(P.W.9). Under the aforesaid circumstances, the conviction of Marwadi Mahato as passed by the learned trial Court is upheld and affirmed under Section 307 of the Indian Penal Code and 27 of the Arms Act. In the result the Criminal Appeal is party allowed, as the conviction of Chotan Mahato, Kaleshwar Mahato, Dilip Mahato and Sudhan Mahato are hereby set aside and so far Marwadi Mahato @ Marwadi Yadav is concerned the same is upheld and affirmed. Accordingly, the impugned judgment of conviction and order of sentence, both dated 11.09.2003, passed by learned Additional Sessions Judge, F.T.C. No.2, Deoghar, in Sessions Case No. 249 of 2002, arising out of Jasidih, P.S. Case No. 36 of 2002 corresponding to G. R. no. 133 of 2002 is hereby upheld and affirmed, so far Marwadi Mahato @ Marwadi Yadav is concerned. 14. In the result, the present Criminal Appeal is hereby partly allowed. 15. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.