JUDGMENT : Heard Mr. B. M. Tripathi, learned senior counsel for the appellant, and Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor for the State. 2. The instant Criminal appeal is directed against the judgment of conviction dated 22.12.2003 and order of sentence dated 23.12.2003, passed in S.T. No.85 of 1994 (arising out of Jagarnathpur P.S. Case No.186 of 1992 corresponding to G.R. No.3600 of 1992)) by the learned Addl. Judicial Commissioner (F.T.C. No.III), Ranchi, whereby both the appellants, Rajesh Kumar Sahu and Raghunath Sahu have been found guilty of the charge under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced them to undergo rigorous imprisonment for 7 years and fine of Rs.1,000/-each for conviction under Section 307/34 of the Indian Penal Code and rigorous imprisonment for 3 years and a fine of Rs.1,000/- each for conviction under Section 27 of the Arms Act. Both the sentences are directed to run concurrently and in default of making payment of fine, as indicated above, the appellants shall further undergo rigorous imprisonment for six months and fine amount shall be payable to the victim, namely, Ram Dayal Sahu. The instant Criminal appeal has been preferred by both the appellants jointly. The Criminal appeal was admitted on 04.03.2004 by this Hon'ble Court, and sentence of appellant no.1, Rajesh Kumar Sahu has been suspended by granting him bail and subsequently, Raghunath Sahu (appellant no.2) was released by suspending his sentence and granting bail in terms of the order dated 18.08.2005. The matter is pending since then before this Hon'ble Court. 3. The prosecution case is based upon on the basis of the written statement of the informant, Ramdayal Sahu -P.W.1 (informant cum victim) of the case, recorded by A.S.I. N. Kumar of Doranda Police Station, at 11.30 p.m. on 1st October, 1992 at Mecon Hospital, Male ward. The informant has stated that on 1st October, 1992 at about 7.45 p.m., co-villagers, Raghunath Sahu and Suresh Sahu were quarreling. Upon hearing the same, he came out and asked them as to why they are quarreling. Raghunath Sahu said who is he to intervene in between them and in the meantime, Rajesh Sahu caught-hold him and assaulted him by fist. Upon which, Raghunath Sahu said, kill him. Upon hearing the same, he came out and asked them as to why they are quarreling. Raghunath Sahu said who is he to intervene in between them and in the meantime, Rajesh Sahu caught-hold him and assaulted him by fist. Upon which, Raghunath Sahu said, kill him. Subsequently, Raghunath Sahu took out revolver from the waist and fired upon him, due to which the informant sustained injury and thereafter he was brought to Mecon Hospital, Shyamli in a auto-rickshaw, where his treatment is going on. The informant has claimed that the appellants, Raghunath Sahu and Rajesh Kr. Sahu, with an intention to kill have fired upon him by revolver causing injury. On the basis of the aforesaid 'fardbeyan' of Ram Dayal Sahu, informant, the Police instituted First Information Report being Jagannathpur P.S. Case No.186 of 1992 (dated 02.10.1992) corresponding to G.R. No.3600 of 1992 under Sections 307 of the Indian Penal Code and under Section 27 of the Arms Act. 4. After investigation, the police submitted charge-sheet vide Charge-sheet No.6 of 1993 dated 31st January, 1993 under Sections 326/307 of the Indian Penal Code. The cognizance of the offence has been taken vide order dated 05.02.1993 and the case was committed to the court of Sessions vide notification dated 24.01.1994. 5. The learned trial court, framed charge, against both the appellants on 18.09.1997 under Sections 307/34 of the Indian Penal Code and under Section 27 of the Arms Act. The appellants pleaded their innocence. Thus, they were put under trial. 6. The prosecution in order to prove its case has examined altogether five witnesses. Ram Dayal Sah, informant-cum-victim has been examined as P.W.1. Kamdev Sah, father of the informant has been examined as P.W.2. Smt. Basanti Devi, mother of the informant has been examined as P.W.3. Dr. Asit Day @ Dr. Asit Baran Dey, Medical officer posted at Mecon Hospital in the Casualty Department has been examined as P.W.4 and Badri Prasad, Advocate Clerk, Civil Court, Ranchi has been examined as P.W.5. The prosecution has also exhibited documentary evidence. Exhibit 1/1 is the signature of Ram Dayal Sahu on 'fardbeyan'. Exhibit 2 is injury report. Exhibit-2/1 is the signature of (P.W.4) Dr. Asit Kumar Dey on the injury report. Exhibit-3 is the 'fardbeyan'. Exhibit-3/1 is forwarding of the 'fardbeyan' and Exhibit-3/2 is formal F.I.R. 7. Ram Dayal Sah is the informant-cum-victim of this case has been examined as P.W.1. Exhibit 1/1 is the signature of Ram Dayal Sahu on 'fardbeyan'. Exhibit 2 is injury report. Exhibit-2/1 is the signature of (P.W.4) Dr. Asit Kumar Dey on the injury report. Exhibit-3 is the 'fardbeyan'. Exhibit-3/1 is forwarding of the 'fardbeyan' and Exhibit-3/2 is formal F.I.R. 7. Ram Dayal Sah is the informant-cum-victim of this case has been examined as P.W.1. He is sole eyewitness of this case. During examination-in-chief, this witness has stated that on 01.10.1992 at around 7.45 p.m., when he left his house for going to his another house and reached near the house of Jagmohan Saw, he saw a quarrel going on between Suresh and Raghunath, upon which he made question. Thereafter Rajesh Saw, gave him threatening, as to why he is interfering and ordered to kill. Upon which Raghunath Saw took out his pistol from the waist and fired upon him, which hit on the back and thereafter he fell down. On raising brawl, inmates and neighbours came and they saw him in an injured condition. This witness has further stated that he was brought on an auto-rickshaw. At around 12.00 -12.30 a.m. in the night, Sub Inspector has recorded his statement, which was read over to him. He put the signature over the same and proved his signature and marked as Exhibit 1/1. This witness has further stated, that he remained under treatment for approximately one month. This witness has identified the appellants present in the dock. During cross-examination, this witness has stated, that 2-4 persons were present, when Suresh was having quarrel with the accused persons. One of the persons was Harichand Sahu. Rest were Suresh as well as Rajesh and Raghunath Sahu, (both the appellants) and none else. During cross-examination, he has further stated that he was fired on the front and he felled down and became unconscious. This witness has further stated that he has no knowledge, that who are the witnesses to the occurrence, as he has sustained fire-arm injury. The witness has described the place of occurrence, which is adjacent to the houses of Jagmohan Saw, Indru Saw, Nandu Saw and Govind Saw, who were residing with their family members. This witness has said, that he was brought in the auto-rickshaw of Anil Verma having its registration number BPV 8117. The witness has described the place of occurrence, which is adjacent to the houses of Jagmohan Saw, Indru Saw, Nandu Saw and Govind Saw, who were residing with their family members. This witness has said, that he was brought in the auto-rickshaw of Anil Verma having its registration number BPV 8117. On recall of this witness after approximately 5 years, this witness has further been cross-examined to the effect that his house is situated at Jagannathpur Police Station, and his statement has been recorded by the Sub Inspector of Police of Doranda Police Station. This witness has further stated in Para-9 of his cross-examination, on recall, that while his statement was recorded by the Sub Inspector of Police in the Hospital at that time he was alone. This witness has further stated that he had shown the injury to the Sub Inspector, which was stained with blood. This witness has categorically stated in Para-11 of cross-examination on recall, that he has said before the Sub Inspector that he was fired by revolver in his front. This witness has categorically stated, that he does not know the difference between revolver and pistol. This witness has subsequently stated in Para-15 of the cross-examination on recall, that while Raghunath Sah and Suresh Sah were quarreling, he reached at the place of occurrence, where Harichand Sahu and others were present. This witness has stated in Para-17 of his cross-examination on recall, that when he sustained fire-arm injury, Suresh, Raghunath and Rajesh were there. He was fired by Raghunath and the occurrence took place at Village square. In Para-22, this witness has stated, that at village square, people are coming and going as the same is only way of in-grace and ex-grace. This witness has further stated that revolver and pistol has not been seized in his presence nor he has any knowledge, whether blood-stained soil was taken by the Police or not, from the place of occurrence. He could not say, name of the Doctor, who has attended him in the emergency. This witness has further stated that he was operated by the Doctor and he disclosed the name of the Doctor who has operated him as Dr. Agrawal, which was performed in the night. He has met his father, first time in the Hospital and he has no knowledge, as to what his father has stated before the Police. This witness has further stated that he was operated by the Doctor and he disclosed the name of the Doctor who has operated him as Dr. Agrawal, which was performed in the night. He has met his father, first time in the Hospital and he has no knowledge, as to what his father has stated before the Police. This witness has further stated that he was brought by his mother, brother along with neighbourers and Police has also examined his mother. This witness has further stated contradictory statement to his earlier statement, to the effect, that he was never unconscious after sustaining the fire-arm injury. This witness has categorically stated, that Doctor has taken out bullet from the body, which was shown to him and the bullet was handed-over to the Police and in that seizure-list, he is not a witness. 8. Mr. B. M. Tripathi, learned Senior counsel, appearing for the appellants has submitted that this witness (P.W.1) is the only eyewitness to the occurrence, being the informant and the injured and his testimony has to be examined with care and caution. He has further submitted that this witness has stated during cross-examination that he was fired in the front portion of his body, but the Doctor has not found any such injury of entry on the front portion of his body, who has been examined as P.W.4 (Dr. Asit Dey). Furthermore, as per the evidence of P.W.1, two persons other than the appellants were present at the place of occurrence, namely, Harichand Sahu and Suresh Sahu, but those persons have not been examined by the prosecution and as such, the veracity of this witness has not been tested properly by the learned trial court by scrutinizing the evidence and thus, committed an error in convicting the appellant on the basis of the sole testimony of an injured witness. 9. Learned Sr. Counsel has further submitted that from the deposition of P.W.1, the place of occurrence is not fixed and proved. The place of occurrence is lying between the one house to another house of the appellant. It is further submitted that the persons whose house is situated adjacent to the place of occurrence have also not been examined in this case nor the Investigating officer of the case has been examined. The place of occurrence is lying between the one house to another house of the appellant. It is further submitted that the persons whose house is situated adjacent to the place of occurrence have also not been examined in this case nor the Investigating officer of the case has been examined. Thus, a serious prejudice has been caused to the appellants, as they could not get an opportunity to cross-examine the Investigating officer to elucidate the fact of the case and regarding place of occurrence as entire case is based upon testimony of single witness P.W.1. 10. Learned Sr. Counsel has further submitted that under such scanty evidence, these two appellants have been convicted for the charge under Sections 307/34 of the Indian Penal Code and under Section 27 of the Arms Act. He has further submitted that from perusal of the evidence of P.W.4 (Doctor) and Exhibit-2, it will be apparent that the Doctor has not stated, that these injuries may be caused by firearm, rather in the last portion of his deposition, Doctor has categorically stated in his cross-examination, that such injury may be caused because of fall and as such, without establishing the fact that injury has been caused upon P.W.1 is by firearm injury. The learned trial court has committed grave error in convicting the appellants under Sections 307/34 of the Indian Penal Code and under Section 27 of the Arms Act. 11. That the learned Senior Counsel has submitted that Court has powers vested under Section 172(2) of Criminal Procedure Code, as reported in (2010) 3 JLJR SC 1, Sidhartha Vashisht @ Manu Vs. State (NCT of Delhi) and (2009) 4 JCR 142 (SC), Md. Ankoos & Ors. Vs. The Public Prosecutor, High Court of A.P. may also perused the Police requisition. It is apparent from the Police requisition, that the Police officer has not mentioned in his requisition, sent to the Medical officer, that whether the injury is caused by fire-arm or not and as such, there is no material on record to accept the statement of P.W.1 to the effect, that he has sustained fire-arm injury caused by revolver fired by Raghunath Sahu. 12. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State has submitted that the statement of P.W.1 cannot be doubted as he is the victim. 12. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State has submitted that the statement of P.W.1 cannot be doubted as he is the victim. He has not tried to develop his case by adding some new facts rather his statement appears to be genuine. 13. Kamdeo Sao, father of the informant of this case, has been examined as P.W.2. He has admitted that he is a hearsay witness, who was present on his duty in the Mecon at the time of occurrence and after getting such information from his employee, he reached Mecon Hospital and saw his son not in a nervous condition with injury which was sustained on the right chest caused by fire-arm. 14. Learned Sr. Counsel for the appellant has submitted that admittedly this witness is a hearsay witness and his observation is a personal observation. He cannot say about the injury caused by which means as the same will be apparent from perusal of Exhibit-2 or the evidence of the Doctor. 15. Learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor, appearing for the State, has submitted that this witness is admittedly a hearsay witness, but his observation to the effect that injury is being caused by fire-arm cannot be ignored. 16. Smt. Basanti Devi, mother of the informant of this case, has been examined as P.W.3. This witness during examination-in-chief has stated, that when she heard that her son, Ramdayal got injury, she was in her house and thereafter came out of her house, after hearing the brawl. She has further stated that upon the order of Rajesh, Raghunath took out pistol from waist, fired upon Ramdayal, due to which her son sustained fire-arm injury. This witness has stated during cross-examination, that she has seen the occurrence. She has further stated, that when she reached at the place of occurrence, her son was in conscious condition. The night was full moon night in the month of ‘Aashwin’. Her house is situated 10-15 steps from the place of occurrence. She has further stated during cross-examination, that when she reached at the place of occurrence, Ramdayal was alone there. After firing was made, the other party, left the place and Ramdayal was lying in pain. She saw the injury on the back. She has further stated that she has not seen from which place, revolver was taken out. She has further stated during cross-examination, that when she reached at the place of occurrence, Ramdayal was alone there. After firing was made, the other party, left the place and Ramdayal was lying in pain. She saw the injury on the back. She has further stated that she has not seen from which place, revolver was taken out. During cross-examination, she has stated that she brought her son in an auto-rickshaw and her son has not said anything. The small quantity of the blood has fallen on the auto-rickshaw. 17. Learned Sr. Counsel for the appellants, has submitted that in view of the statement made by P.W.3 in examination-in-chief, to the effect that she was inside the house. When she heard brawl of the people, she came out of the house. Thereafter she reached at the place of occurrence, as stated in cross-examination, that her son was lying on the ground and was under pain and as such, subsequent development of the evidence by this witness claiming herself to be eyewitness is not acceptable. 18. Furthermore, the informant and son of this witness who has been examined as P.W.1 (Ramdayal Sahu) has never said that his mother has also witnessed the occurrence rather as per P.W.1, two persons apart from the appellants were present. Their names were Harichand Sahu and Suresh and as such, presence of this witness at the place of occurrence is highly doubtful and cannot be relied upon by considering her to be an eyewitness to the occurrence. 19. Learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor has stated, that a lady can see the occurrence from a distance. It is true that she came out after hearing hulla, but she may saw the occurrence from distance i.e. 10-15 steps as the place of occurrence is situated 10-15 steps from her house, but could not satisfy this Court on the question, that if the lady has seen the occurrence. She could not disclose before the Court from where arms were taken out and as such, considering the evidence of P.Ws.1 and 3, this Court is of the opinion that P.W.3 is not an eyewitness to the occurrence rather she is a hearsay witness. 20. Dr. Ashit Dey, has been examined as P.W.4. She could not disclose before the Court from where arms were taken out and as such, considering the evidence of P.Ws.1 and 3, this Court is of the opinion that P.W.3 is not an eyewitness to the occurrence rather she is a hearsay witness. 20. Dr. Ashit Dey, has been examined as P.W.4. He is the Doctor who gave initial treatment to the victim, Ramdayal Sahu at Mecon Hospital while he was on his duty in 'B-Shift' from 2.00 p.m. to 9.00 p.m. This witness has stated that he examined the patient at 8.45 p.m. and found a punctured wound in the scalpula in between Middest Capula and post auxiliary region. He has also found multiple punctured abrasion right post auxillary region on an anterior portion of the chest, slight abrasion. The size and shape of the wound being 2”x1/2”x2”. The Doctor has categorically stated that he has only given first aid and he cannot opine by what means injury has been caused. The Doctor who conducted the operation, can say about the means by which the injuries were caused. He proved the report in his hand-writing with the signature and marked as Exhibit 2 and Exhibit 2/1. During cross-examination, this witness has further stated, that this type of injury may be caused by fall also. 21. Mr. B. M. Tripathi, learned Sr. Counsel for the appellants has submitted that from perusal of the evidence of Dr. Ashit Dey (P.W.4) and the injury report of Ramdayal Sahu, which has been marked as Exhibit-2, it is apparent that nowhere it is mentioned that these injuries have been caused by fire-arm injury, apart from the fact that age of the injury has not been mentioned and when Doctor has categorically stated during cross-examination, that such injury may be caused because of fall, the entire prosecution case is falsified as the Doctor has not found fire-arm injury and the I.O. of the case has not been examined and as such, benefit of doubt may be given in favour of the appellants, who have falsely been implicated in this case and wrongly convicted by the learned Trial Court. 22. Learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor, has not disputed the aforesaid fact after perusal of the evidence of Doctor (P.W.4) and Exhibit-2 (injury report) of injured- Ramdayal Sahu. 23. 22. Learned counsel for the State, Mr. Rajesh Kumar Mishra, Additional Public Prosecutor, has not disputed the aforesaid fact after perusal of the evidence of Doctor (P.W.4) and Exhibit-2 (injury report) of injured- Ramdayal Sahu. 23. Badri Prasad, a formal witness of this case and Advocate clerk has been examined as P.W.5. This witness has proved the writing of Sub Inspector of Police, N. Kumar, who has recorded the ‘fardbeyan’ of the informant, Ramdayal Sahu as Exhibit-3 and signature of C. B. Singh, Inspector-cum-Officer in charge, Doranda, over forwarding letter as Exhibit -3/1 and the formal F.I.R. written by U. Prasad, Officer-in-Charge, of Jagannathpur Police Station as Exhibit-3/2. This witness during cross-examination, has stated that ‘fardbeyan’ was neither recorded in his presence at Mecon Hospital nor he has knowledge about the case. 24. Mr. B. M. Tripathi, learned Sr. Counsel for the appellants has further submitted that P.W.5 is formal witness, who has admitted that ‘fardbeyan’ was not recorded in his presence. He has further submitted that P.W.1 (Ramdayal Sahu), who has proved his signature on the ‘fardbeyan’ and also exhibited the same. The Investigating Officer or the Police officer who has recorded ‘fardbeyan’ has not been examined in this case and as such, proving of ‘fardbeyan’, forwarding letter issued by Inspector of Police, Doranda and the formal FIR drawn by the Officer-in-charge, Jagannathpur Police Station are not legally proved by an Advocate Clerk, working in a Civil Court as he is not competent witness to identify and prove the signature and writing of the Police officer. 25. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State, has submitted that there is nothing wrong in exhibiting these documents, on the basis of the formal witness as the formal witness has not said anything except proving the same. He has only proved document, which has been placed before the Court. Since the I.O. has not been examined and as such, formal witness has proved the same. It has never been doubted by the appellants during the trial and the same has been exhibited without objection. 26. Mr. B. M. Tripathi, learned Sr. Counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law as in this case, eyewitnesses who were present at the place of occurrence have not been examined. 26. Mr. B. M. Tripathi, learned Sr. Counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law as in this case, eyewitnesses who were present at the place of occurrence have not been examined. The witnesses, namely, Suresh Sahu or Harichand Sahu have not been examined nor any explanation has been placed by the prosecution for non-examination. He has further submitted that the Doctor who has operated the injured, i.e. Dr. Agrawal has also not been examined in this case to prove, that the injury has been caused upon the injured is fire-arm injury. Doctor (P.W.4) has categorically stated during cross-examination, that the injury may be caused because of fall. He is a first doctor, who gave initial treatment to the injured and as such, the entire case of the prosecution is unbelievable as none of the material has been placed before the court to establish that injury is caused by firearm injury. 27. Mr. B. M. Tripathi, learned Sr. Counsel for the appellants has further submitted, that out of 5 witnesses, P.W.1 is only an eye-witness to the occurrence being victim and the informant of the case, but his testimony cannot be relied upon for convicting the appellants, as he has never disclosed before any person, that who has fired upon him and it is only in the ‘fardbeyan’ in which it is alleged that he has been fired by Raghunath Sahu. He has further submitted, that from perusal of the deposition and the ‘fardbeyan’ of P.W.1, it is stated that Raghunath Sahu has said, 'kill him'. Thereafter he took out pistol and fired upon the victim, but while deposing as P.W.1, this witness has stated that upon the order of Rajesh, Raghunath Sahu has fired from the pistol taken out from the waist. Furthermore, P.W.1 (Ramdayal Sahu) has stated that he was fired in the front, but the Doctor has found the injury on the back and the mother has also found the injury on the back who has been examined as P.W.3 and the father (P.W.2) has found the injury on the right side of the rib and as such, these vital contradiction is fatal for the prosecution case. In absence of examination of Dr. In absence of examination of Dr. Agrawal as stated by P.W.1 and non-examination of the Investigation officer of this case, the impugned judgment of conviction and order of sentence is fit to be set aside by giving appellants benefit of doubt. Apart from that, the size of injury found on the person of P.W.1 has not been properly explained. 28. Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor appearing for the State, has fairly submitted that P.W.1 has categorically stated Raghunath Sahu has fired and the same statement has been made in the Court while deposing P.W.1, but could not satisfy this Court on the query made regarding the ‘fardbeyan’. Learned Additional Public Prosecutor, has submitted that Raghunath Sahu said kill him but during deposing such allegation of giving order is against the appellant, Rajesh Kumar Sahu. 29. Apart from this, Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor, has also not explained as to why the investigating officer, Dr. Agrawal and two eyewitnesses namely, Suresh Sah and Harichand Sahu have not been produced before the court below for evidence. He has fairly submitted that the impugned judgment of conviction and order of sentence is based upon the testimony of P.W.1 and the injury report which has been marked as Exhibit-2 and has submitted that impugned judgment of conviction and order of sentence warrants no interference by this Hon’ble Court, as the same has been passed by the trial court on the material available on record. 30. After hearing learned senior counsel for the appellants and learned counsel for the State and re-examination of the evidence brought on record, this Court is of the opinion that the prosecution has failed to prove the case beyond all reasonable doubt as non-examination of the Investigating officer has caused serious prejudice to the appellants, as the appellants could not examine him, with regard to size of injury on the person of the victim, with respect to the place of occurrence and also with respect to the opinion given by P.W.4 (Dr. Ashit Kumar Dey), such injury may be caused by fall. This Court after perusal of the opinion of Dr. Ashit Kumar Dey), such injury may be caused by fall. This Court after perusal of the opinion of Dr. Ashit Kumar Dey (P.W.4) and the injury report (Exhibit-2) is of the opinion that there is no material or whisper that these injury may be caused by fire-arm rather contradictory to this, P.W.4 (Doctor), has admitted during cross-examination, that such injury may be caused because of fall and vital contradiction regarding the place of injury on the person of the injured such as front, back or right side of chest as stated by P.Ws.1, 3 and 2 respectively. The other witnesses are hearsay witnesses and as such, this Court is of the opinion that the submissions of the learned senior counsel gets some force and as such, benefit of doubt is given in favour of the appellants by setting aside the impugned judgment of conviction and order of sentence. 31. Accordingly, the impugned judgment of conviction dated 22.12.2003 and order of sentence dated 23.12.2003, passed in S.T. No.85 of 1994 (arising out of Jagarnathpur P.S. Case No.186 of 1992 corresponding to G.R. No.3600 of 1992) by the learned Addl. Judicial Commissioner (F.T.C. No. III), Ranchi, is hereby set aside. The appellants, who are already on bail, are discharged from the liability of their bail bonds. 32. Accordingly, the instant appeal stands allowed. 33. Let L.C.R. be sent to the court concerned and a copy of this judgment be sent to the court concerned.