JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against the Judgment of conviction and Order of sentence dated 31.01.2003, passed by the learned Additional District & Sessions Judge-VIII, Dhanbad, in S.T. No.64 of 2002, holding the appellant guilty for the offence under Sections 307 and 324 of the Indian Penal Code and Section 27 of the Arms Act. The appellant has been sentenced to undergo R.I. for seven years with fine of Rs.3,000/- under Section 307 I.P.C. and R.I. for three years with fine of Rs.2,000/- under Section 27 of the Arms Act and in default of payment of fine, S.I. for six months in both the Sections. Both the sentences shall run concurrently. No separate conviction has been inflicted under Section 324 I.P.C. as the conviction in the major Section 307 I.P.C. has already been made. 3. The prosecution case is short is that fardbeyan of Ganesh Singh was recorded by S.I. Om Prakash, Officer-in-Charge, Loyabad Police Station on 11.08.2001 at 9.40 a.m. at Akra Check Post that he was working as contractor in BCCL Company. On 11.08.2001, at around 9.40 a.m. at Akra Check Post has given his statement that on 06/07.07.1994 a dacoity was committed in his house for which Jogta (Loyabad) P.S. Case No. 117/94 under Section 395 I.P.C. was lodged in which Satyendra Kewat and six others accused persons were apprehended and these accused were identified during Test Identification Parade. That case was at the evidence stage in which his son Babloo Kumar Singh deposed before the court of 2nd Sessions Judge about 15 to 17 days ago where Satyendra Kewat had threatened his son not to come for evidence otherwise his entire family would be killed. He had also threatened to withdraw the case. Today, i.e. on 11.08.2001, while he was reading the newspaper sitting on the bench of tea stall of Nand Kishore Singh situated near Basudeopur Check Post, suddenly at around 9.10 a.m. Satyendra Kewat came there on his Kawasaki Caliber Motorcycle bearing No. BR-17F-8822 and came at the distance of about 5 feet and took out a country made pistol from his waist and fired upon me, but it became misfired. Immediately he took out another country made pistol from his waist and again fired upon me. Immediately he took out another country made pistol from his waist and again fired upon me. Meanwhile, he fell on his back then the bullet hit Mahadeo B.P. on his chest, who was standing behind him, as a result he fell down. Informant ran towards the colliery office in order to save his life but Satyendra Kewat started chasing him and was abusing him for giving the evidence. The accused chased him for about 200 feet and thereafter he returned and fled away from his motorcycle. Injured Mahadeo B.P. was taken to the hospital for treatment. Many people were present at the place of occurrence who have also seen the occurrence. It seems that since he was to depose in the case that is why with a view to deter him, firing was made upon him to cause his murder, but he could save himself and the bullet hit Mahadeo B.P. who was standing behind him and who became seriously injured. This fardbeyan was signed before his uncle Jagdish Singh. On the basis of the fardbeyan Jogta (Loyabad) P.S. Case No. 69/2001 under Sections 324 and 307 of the Indian Penal Code and Section 27 of the Arms Act was registered and a formal F.I.R. was drawn up being G.R. No. 2184/2001. After investigation, charge-sheet was submitted against the sole appellant. 4. The charge under Section 307 and 324 of the Indian Penal Code and Section 27 of the Arms Act was framed on 31.05.2002 and accused pleaded not guilty and claimed to be tried. 5. During trial, the prosecution altogether examined 08 witnesses, but no witness was examined on behalf of defence although some certified copies were brought on record on behalf of defence which were marked as Ext.-A, A/1, B, B/a, B/b, B/c and Ext.-C. 6. PW-1 Lal Babu Singh is an eye witness who was also drinking tea in the shop of Nand Kishore Singh with Ganesh Singh, Mahadeo B.P. and some other persons when accused Satyendra Kewat came there on his red coloured Bajaj Kawasaki Caliber Motorcycle. PW-1 Lal Babu Singh is an eye witness who was also drinking tea in the shop of Nand Kishore Singh with Ganesh Singh, Mahadeo B.P. and some other persons when accused Satyendra Kewat came there on his red coloured Bajaj Kawasaki Caliber Motorcycle. He get down from the motorcycle and came near the shop and took out country made pistol from his waist and fired upon Ganesh Singh but the same became misfired and immediately he took out another country made pistol from his waist and fired upon Ganesh Singh which hit Mahadeo B.P. He further deposed that accused chased Ganesh Singh and to save his life Ganesh Singh reached colliery office where C.I.S.F. personnel were there. He further deposed that he had information that a dacoity was committed in the house of Ganesh Singh in which this accused was also one of the accused and he wanted to compromise that case but the compromise was not arrived that is why this incident of firing has been made. This witness identified the accused standing in the court. This witness was cross examined and nothing adverse could be taken from this witness. 7. PW-2 Mahadeo B.P. who is also an eye witness and the injured, narrated about the incident of 11.08.2001. This witness is a mason (Raj Mistri working under the contractor. He stated that he was talking with the contractor near Akra Check Post where Lal Babu Singh, Ganesh Singh and other unknown persons were present. Ganesh Singh was reading newspaper at tea stall meanwhile Satyendra Kewat came on a motorcycle and thereafter took out a country made pistol from his waist and fired upon Ganesh Singh but the same misfired. Thereafter, he again took out another country made pistol and fired upon Ganesh Singh but since he fell on the ground, the bullet hit the chest of this witness on the left side which was later on operated upon. This witness has shown the wound on his chest as well as on his back. He further deposed that after hitting of bullet he fell down and became unconscious and he regained his consciousness in the Sadar Hospital, Dhanbad where his statement was recorded by the Police. This witness also recognized accused Satyendra Kewat standing in the court and stated that he had fired upon him. He further deposed that after hitting of bullet he fell down and became unconscious and he regained his consciousness in the Sadar Hospital, Dhanbad where his statement was recorded by the Police. This witness also recognized accused Satyendra Kewat standing in the court and stated that he had fired upon him. During cross-examination this witness replied that his statement was recorded by the Police Officer of Dhanbad Police Station but he could not remember the date of its recording. He volunteered that earlier Inspector of Loyabad Police Station had also recorded his statement upon which he had signed after the same was read over to him. He also deposed that at the Check Post, apart from Lal Babu Singh and Ganesh Singh, other persons were also present but he could not say their names. He also replied that at the time of occurrence he was wearing shirt and pant and the shirt had blood stained. The Police has not seized his shirt. The cross examination of this witness was adjourned and after resumption of his cross examination, this witness produced the shirt before the court which was marked as material Ext.-2. He further stated that this material exhibit was not submitted to the court of C.J.M. nor it was sent for chemical examination. This witness has also submitted the photocopy of the discharge slip of the hospital. This witness has also replied that he was not having any enmity with the accused. 8. PW-3 Ganesh Singh who is informant of this case has fully supported the prosecution story and occurrence. He stated that on 11.08.2001 at about 9.10 a.m. while he was reading newspaper at the tea stall of Nand Kishore Singh near Basudeopur Colliery Check Post when accused Satyendra Kewat came on a red coloured Kawasaki Bajaj Caliber motorcycle bearing No. BR-17F-8822 and parked at a distance of 5 – 7 feet from him. Then he took out country made pistol from his waist and fired upon him which became misfired. Again he took out another country made pistol and fired upon him but at the same time he fell down due to which the bullet hit in the chest of Mahadeo B.P. who also fell down. Thereafter, in order to save his life, he started running towards colliery office. Satyendra Kewat also chased him for about 200 feet and was using filthy language. Thereafter, in order to save his life, he started running towards colliery office. Satyendra Kewat also chased him for about 200 feet and was using filthy language. Thereafter, he returned back where his motorcycle was parked. The reason of this incident was that in his house a dacoity was committed on 06.07.1994 for which Loyabad P.S.Case No. 117/94 was lodged under Section 395 I.P.C. In that case Satyendra Kewat was the main accused who is also accused of this case. In that case prosecution evidence was going on and this accused was threatening not to depose before the court otherwise entire family will be eliminated. 15 days prior to this incident, while his son Babloo was deposing before the court, threatening was also given to him and filthy language was used. This witness has also recognized his signature upon the fardbeyan which was recorded by Loyabad Police at 9.40 a.m. and the same was marked as Ext.-1 and 1/A. This witness has recognized the sole accused Satyendra Kewat present in the court. The court has asked the accused to mention his name and he mentioned his name as Satyendra Kewat. This witness was cross examined and replied that his statement was recorded by the Police Officer where he had stated about the incident. Statement of Lal Babu Singh was also recorded who is also an independent contractor and not working under him. He also replied that the place of occurrence is at a distance of about 500 yards from his house. He also replied the questions relating to the tea shop where he was reading newspaper. This witness stood the test of cross-examination. This witness denied the suggestion that he had lodged false case implicating this accused. 9. PW-4 Iqubal Quareshi who has a mutton shop near the place of occurrence became hostile and not supported the prosecution case. 10. PW-5 Nand Kishore Singh, tea stall owner, also became hostile. It is said that the incident occurred in his tea stall while the informant was reading newspaper. Prosecution has cross-examined and then he replied that he knows Ganesh Singh for the last 8 to 10 years and he heard about the dacoity committed in his house. He is not aware about the pendency of that case. It is said that the incident occurred in his tea stall while the informant was reading newspaper. Prosecution has cross-examined and then he replied that he knows Ganesh Singh for the last 8 to 10 years and he heard about the dacoity committed in his house. He is not aware about the pendency of that case. He also knows Satyendra Kewat for about 7 to 8 years, who also runs Mamta Hotel at a distance of about 1 km from his shop. During cross examination this witness stated that on the day of occurrence at around 9¼ - 9½ he closed his shop and went to his house and he returned after taking meal at around 10½ - 11 a.m. and started selling tea. 11. PW-6 is Dr. Kailash Prasad, who found following injuries on the person of Mahadeo B.P. :- (1) One lacerated wound at second inter coastal space left side in mid clavicular region oval in shape size ½” x ½” depth not probed margin inverted no charring, bleeding + bleeding present. Crackling sound around the wound. 12. According to his opinion, the injury was fire arm injury. He proved the injury report which was marked as Ext.-3. He further stated that the place where the injury inflicted was a vital place and the same may cause death of a person. During cross-examination he replied that the injury caused on the person of Mahadeo B.P. cannot be caused by piercing hot iron rod, arrow or round pointed weapon. He denied the suggestion that this injury report was prepared on the behest of Ganesh Singh and a forged report has been prepared. 13. PW-7 Om Prakash is the I.O. of this case who has proved fardbeyan as Ext.-4 and its endorsement as Ext.-5, formal F.I.R. as Ext.1/B. He had also seized the motorcycle bearing No. BR-17A-8822 behind the house of accused which parked near the bush which was proved as Ext.-6. He tried to arrest the accused but later on he was taken on remand from another case on 28.08.2001. This accused was also involved in Loyabad P.S. Case No. 117/94 registered under Sections 395 and 397 I.P.C. He is also suspect in Jogta (Loyabad) P.S. case No. 122/99. He further replied that the bullet taken out by surgery has been kept in Malkhana as No.642/31.8.2001. This accused was also involved in Loyabad P.S. Case No. 117/94 registered under Sections 395 and 397 I.P.C. He is also suspect in Jogta (Loyabad) P.S. case No. 122/99. He further replied that the bullet taken out by surgery has been kept in Malkhana as No.642/31.8.2001. He further replied that the blood stained soil was not seized by him and it was not mentioned in the diary also. He also replied that no sketch map of the place of occurrence was prepared by him. He had also not prepared the seizure of the bullet which was produced before the court. 14. PW-8 is Dr. Shankar Prasad Sinha, Assistant Professor in Surgery at Patliputra Medical College, Dhanbad who had conducted operation of Mahadeo B.P. who was admitted by Dr. Kailash Prasad, Surgeon on Duty. In the operation he found bullet at the back side of the chest. The condition of the patient was precarious and there was profuse bleeding. In the operation theatre the stuck bullet was removed and the same was preserved and kept in seal. The patient was discharged on 04.09.2001. He further deposed that I.O. had prayed that after the patient recovers senses intimate him so that his statement could be recorded. He also proved the Bed Head Ticket as Ext.-7. The discharge slip in the pen and signature of Md. Alam, House Surgeon and also in his pen and signature both of which were recognized by him which was marked as Ext.-8. During cross examination he replied that the sealing of Ext.-10 was not with wax and only registration number has been given. He further replied that this exhibit was not sent to the court of C.J.M. by him 15. Learned counsel for the appellant submitted that the judgment of conviction and order of sentence is bad in the eye of law as the Doctor who had operated and extracted the bullet is not from the chest but from the back side of the body. He further submitted that injury No.1 was simple in nature and it was not such to cause death. He also submitted that PW-6 Dr. Kailash Prasad has replied in Para-5 of his cross-examination that he had not extracted the bullet. Lastly he submitted that this appellant remained in custody for about two years. 16. He further submitted that injury No.1 was simple in nature and it was not such to cause death. He also submitted that PW-6 Dr. Kailash Prasad has replied in Para-5 of his cross-examination that he had not extracted the bullet. Lastly he submitted that this appellant remained in custody for about two years. 16. Learned A.P.P. appearing on behalf of State submitted that the eye witnesses of this case PW-1, PW-2 and PW-3 have fully supported the prosecution case which is also corroborated by the medical evidence of PW-6 and PW-8. He further submitted that PW-6 Dr. Kailash Prasad had prepared the injury report and had admitted the patient but the surgery was done by PW-8 Dr. Shankar Prasad Sinha who has also deposed in favour of prosecution. PW-8 has amply clarified the position that the bullet had hit the chest but the same was extracted from the back side of the injured which is quite normal. He also submitted that injured Mahadeo B.P. while deposing as PW-2 has shown his wounds of entry and exit before the court which has been also mentioned by the court. Learned A.P.P. further submitted that motive was also proved as this appellant was one of the main accused who had committed dacoity in the house of informant and had threatened Babloo Singh, the son of informant while he was deposing in that case as the appellant wanted a compromise in that case. Since the compromise could not be made between the parties, he caused this incident of firing although it hit another person who was standing behind the informant. It is further submitted that PW-7 has also mentioned about involvement of this appellant in Loyabad P.S.Case No. 117/94 lodged under Section 395 I.P.C. and also Jogta (Loyabad) P.S. case No. 122/99 which shows the antecedent of this appellant. Therefore, the trial court has rightly convicted the appellant. 17. Considering the pleading of both sides and on perusal of the lower court records as also the material available before this Court as well as the scrutiny of the evidences adduced on behalf of prosecution it appears that PW-1 Lal Babu Singh, PW-2 Mahadeo B.P. (injured) and PW-3 Ganesh Singh (informant) all were present and were taking tea in the shop of PW-5 Nand Kishore Singh when the appellant came and fired upon the informant. The first firing was not effective then he took out another country made pistol and fired upon the informant but by this time informant could save himself and the bullet hit PW-2 Mahadeo B.P. who was standing behind the informant. PW-6 Dr. Kailash Prasad has also found injury upon PW-2 as fire arm injury and PW-8 Dr. Shankar Prasad Sinha who operated and has extracted the bullet have also supported the prosecution version. From record it also appears that though Nand Kishore Singh, tea stall owner, and his neighbouring shop owner Iqubal Quareshi, both became hostile and did not support the prosecution case, but the prosecution is able to prove the motive of incident as well as the prosecution version through eye witnesses supported with the medical evidences of PW-6 Dr. Kailash Prasad and PW-8 Dr. Shankar Prasad Sinha. 18. Therefore, in this background, the prosecution has able to prove its case beyond all reasonable doubt. The Judgment of conviction and Order of sentence dated 31.01.2003, passed by the learned Additional District & Sessions Judge-VIII, Dhanbad, in S.T. No.64 of 2002 needs no interference. 19. In the result, this appeal is dismissed. 20. The appellant is on bail and his bail is hereby, cancelled. The appellant is directed to surrender in the Court below forthwith for serving out the sentence passed by the trial court. The court below is also directed to issue process immediately for compelling the surrender / production of the appellant for serving out remaining part of the sentence. 21. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.