JUDGMENT : Per Shree Chandrashekhar, J. Two persons, namely, Guddu Ojha and Brajesh Ojha were named by the informant-Krishna Mahato as the persons who have attempted to commit his murder by firing a shot. The fardbeyan of the informant was recorded at Saurabh Nursing Home on 16.10.1997, on the basis of which Nirsa P.S. Case No. 226 of 1997 was registered under section 307, 326, 341 IPC and under section 27 of the Arms Act against the accused persons. 2. Both the accused persons have faced the trial on the charges framed under section 307, 326 and 324 IPC and section 27 of the Arms Act. 3. The learned Sessions Judge has convicted both of them under section 307/34 IPC and under section 324/34 IPC. They have been sentenced to undergo R.I for Ten years and fine of Rs. 2,000/-under section 307/34 IPC and in default of payment of fine they were directed to undergo R.I for further one year. No separate sentence for the offence under section 324/34 IPC has been passed by the trial judge. 4. The co-convict namely, Guddu Ojha has preferred Criminal Appeal (DB) No. 350 of 2001, which by the order dated 19.08.2019, on his death, has abated. 5. The prosecution's case as disclosed by the informant-Krishna Mahato in his fardbeyan is that at about 11:30 a.m. on 16.10.1997 the accused persons, namely, Guddu Ojha and Brajesh Ojha met him near English School and an altercation took place between them. The accused persons were intending to mine his field to which he had objected to and for that reason they have started quarreling with him. During the altercation a scuffle took place between them in which Guddu Ojha fired a shot from behind which hit him in his waist. On raising alarm by his brother-Manik Mahato, the accused persons fled away. The villagers who came there took him to the hospital where his treatment was going on. Fardbeyan of the informant was recorded at Saurabh Nursing Home, Nirsa. 6. During the trial, the prosecution has examined eight witnesses; the informant is P.W.5. 7. Dr. S.K. Mandal-P.W.6 has examined the informant at Saurabh Nursing Home, Nirsa and Dr. S. Bhattacharjee-P.W.8 has examined him at Popular Nursing Home. 8. The prosecution has projected Manik Mahato-P.W.1, Dukhu Mahato-P.W.2, Jhumu Mahatain-P.W.3 and the informant as the eye-witnesses. 9. 6. During the trial, the prosecution has examined eight witnesses; the informant is P.W.5. 7. Dr. S.K. Mandal-P.W.6 has examined the informant at Saurabh Nursing Home, Nirsa and Dr. S. Bhattacharjee-P.W.8 has examined him at Popular Nursing Home. 8. The prosecution has projected Manik Mahato-P.W.1, Dukhu Mahato-P.W.2, Jhumu Mahatain-P.W.3 and the informant as the eye-witnesses. 9. The informant in his examination-in-chief has narrated a similar story about the incident what he has stated before the police in his fardbeyan. The other eye-witnesses – P.W.1, P.W.2 and P.W.3 – have also made a specific allegation of firing shot at Krishna Mahato by the accused Guddu Ojha. 10. Dr. S. K. Mandal has stated in the court that he has not recorded the age of the injury in his report, however, Dr. S. Bhattacharjee has stated that he has found a foreign object in the body of the Krishna Mahato. A bullet was recovered from the body of Krishna Mahato which was produced during the trial. 11. Since appeal preferred by Guddu Ojha has abated, we are not inclined to discuss merits of the prosecution's case against him. 12. In so far as role played by the appellant-Brajesh Ojha is concerned, we find that there are several inconsistencies in the testimony of the eye-witnesses. It is the prosecution's case that Brajesh Ojha caught hold of Krishna Mahato while the accused Guddu Ojha fired a shot from behind. Brother of the informant, namely, Manik Mahato has deposed in the court that the appellant caught hold of Krishna Mahato. In his cross-examination, he has admitted that near the place of occurrence there is a school and several houses. Father of the informant, namely, Dukhu Mahato has also deposed in the court that Brajesh Ojha caught hold of his son while Guddu Ojha fired shot on him. Wife of the informant has stated in her examination-in-chief that Guddu Ojha fired a shot from his pistol on her husband which hit him in his waist. She has stated that the appellant was with the accused Guddu Ojha. She says that the appellant had caught hold of hand of her husband. Wife of the informant has stated in her examination-in-chief that Guddu Ojha fired a shot from his pistol on her husband which hit him in his waist. She has stated that the appellant was with the accused Guddu Ojha. She says that the appellant had caught hold of hand of her husband. Now contrary to what has not been stated by the other eye-witnesses, the informant in his examination-in-chief says that when he along with his brother, father and wife reached near the English School the appellant started assaulting him and Guddu Ojha fired a shot which hit him in his waist. He has also admitted that near the place of occurrence there is a football ground, a school and several houses. 13. The defence set-up by the accused persons was that it was the informant and his brother-Manik Mahato who were assaulting Brajesh Ojha and Guddu Ojha and Manik Mahato had fired a shot which by mistake hit Krishna Mahato. To establish their defence the accused persons have examined four witnesses. They have produced injury report of Brajesh Ojha, the appellant, and several other documents. During cross-examination of the prosecution witnesses, a suggestion was given to them that a case has been lodged by Brajesh Ojha in which the informant and his brother are the accused persons. The informant in his cross-examination admits pendency of the case filed by the accused persons; a counter case being Nirsa P.S. Case No. 227 of 1997 was registered at the instance of the appellant-Brajesh Ojha. 14. However, there is no discussion by the learned Judge on the defence evidence whether it makes the case set-up by the accused persons probable or not. On merits also we find that the prosecution has failed to establish an active role played by the appellant in the occurrence. In so far as conviction of the appellant with the aid of section 34 IPC is concerned, no material has been produced by the prosecution to prove that Guddu Ojha fired a shot on Krishna Mahato in furtherance of their common intention or that the appellant-Brajesh Ojha had knowledge that Guddu Ojha was carrying a pistol and would try to commit murder of Krishna Mahato. 15. 15. The charges under section 326 IPC and section 27 of the Arms Act have failed and, as noticed above, on the question of the appellant catching hold of Krishna Mahato there is serious discrepancy in the evidence of the prosecution witnesses. In fact, so far as the role played by the appellant is concerned, the manner of occurrence as disclosed by the prosecution witnesses is highly improbable. 16. In the above fact, we are of the opinion that the prosecution has failed to prove the charge under section 307/34 and 324/34 IPC against the appellant. 17. The judgment of conviction under section 307/34 and 324/34 IPC dated 02.08.2001 and the order of sentence of R.I for Ten years and fine of Rs. 2,000/-dated 09.08.2001 passed against the appellant by the Sessions Judge at Dhanbad in Sessions Trial No. 150 of 1998 are set-aside. 18. Consequently, the appellant is acquitted of the charges framed against him. The appellant who is on bail is discharged of liability of the bail-bonds furnished by him. 19. Criminal Appeal (DB) No. 349 of 2001 is allowed. 20. Let lower-court records be transmitted to the court concerned, forthwith. Appeal allowed.