JUDGMENT : Heard Mr. Arbind Kumar Sinha, the learned counsel for the appellant, Mrs. Suchitra Pandey, the learned Amicus Curiae and Mr. S.K. Srivastava, the learned APP. 2. The present criminal appeal is preferred against the judgment of conviction dated 17.04.2010 and the order of sentence dated 20.04.2010, passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj, Palamau in Sessions Case No. 301 of 2003, whereby and whereunder, the appellant was convicted under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act. The appellant was sentenced to undergo RI for six years and a fine of Rs.2000/-under section 307 of the Indian Penal Code and sentenced to undergo RI for two years under Section 27 of the Arms Act. In default of payment of fine two months SI was awarded and both the sentences were directed to run concurrently. 3. The case of the prosecution, in brief, as per the fardbeyan dated 21.12.2001 of the informant PW-1 Ali Hasan Ansari, is that on 20.12.2001 at 7:00 O'clock in the evening, informant along with his wife Sahida (PW-3) was sitting near stove and informant’s wife as cooking food. Suddenly appellant Akhter Ansari armed with gun came and fired from the gun. The pellet of the bullet hit the finger of the informant's hand, arm and chin and he came out raising alarm. Informant saw Akhter Ansari, Asgar Ansari, Idris Ansari and Riyasat Hussain, all of them fleeing away. Informant further stated that on halla, his brother Ibrar Ansari and villagers Hafiz Mian (PW5), Dildar Mian (PW-6), Jumman Ansari (PW-7) and Zafar Ansari (PW-8) came there. After the incident, the informant, along with the villagers went to Sarpanch Tahir Hussain (PW-10), who told him to inform at the police station. Informant stated that the incident occurred due to dispute over the grazing of the field by the cattle. 4. On basis of the fardbeyan of the informant, formal FIR being Chhaterpur PS Case No. 100 of 2001 dated 21.12.2001 was registered under sections 448, 307/34 IPC and section 27 Arms Act against the accused persons including the appellants herein. Informant stated that the incident occurred due to dispute over the grazing of the field by the cattle. 4. On basis of the fardbeyan of the informant, formal FIR being Chhaterpur PS Case No. 100 of 2001 dated 21.12.2001 was registered under sections 448, 307/34 IPC and section 27 Arms Act against the accused persons including the appellants herein. After investigation, charge sheet was submitted under sections 448, 324, 326, 307/34 of IPC and section 27 of the Arms Act against the four accused persons including the appellant herein and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed under section 307 IPC and section 27 Arms Act against the appellant and trial was held. At the conclusion of the trial, the appellant was convicted and sentenced as aforesaid, hence, this appeal. 5. Prosecution had examined altogether twelve witnesses out of whom PW-1 is Ali Hasan Ansari, who is informant of the case; PW-2 is Mohiuddin Mian, who is the father of the informant; PW-3 is Sahida Bibi, who is the wife of the informant; PW-11 is Dr. Rajesh Kumar Agrawal; PW12 is Nasim Haider, who is a formal witness and he had proved the fardbeyan and the formal FIR which were marked as Ext.-3 and Ext.-4 respectively. The remaining other witnesses PW-4 Sadique Mian, PW-5 Hafiz Mian, PW-6 Dildar Ansari, PW-7 Jumman Ansari, PW-8 Zafar Ansari, PW-9 Samsuddin Ansari and PW-10 Tahir Ansari were declared hostile by the prosecution. 6. PW-1 Ali Hasan Ansari, is the informant of the case. Informant had in his evidence stated that on 20.12.2001 at 7:00 O'clock in the evening, informant was at his home along with his wife. Appellant Akhter Ansari entered into his house, abused him and fired at him, which hit his arm and finger. Asgar Ansari was also there along with Akhter Ansari. He came out shouting and saw Riyasat Ansari and Idris Ansari standing. Informant further stated that he got his injury treated firstly in village and thereafter, in Government Hospital. Informant has proved his signature on the fardbeyan which was marked as Ext.-1. Informant further stated that bullet was fired from the distance of 6-7 steps. In his cross-examination informant stated that he was treated by an ordinary doctor of village, whose name is Shamim Akhter. Informant has proved his signature on the fardbeyan which was marked as Ext.-1. Informant further stated that bullet was fired from the distance of 6-7 steps. In his cross-examination informant stated that he was treated by an ordinary doctor of village, whose name is Shamim Akhter. The accused persons had lodged a case against his brother and father for attacking with bomb. 7. PW-2 is Moiuddin Mian, who is father of the informant. PW-2 had stated in his evidence that when he came out on hearing the sound of firing, he saw informant in injured condition. Informant told that Akhter, Asgar, Idris and one another person had fired bullet and fled away. PW-2 in his cross-examination stated that no one was present at the time when his son told the name of the accused persons. 8. PW-3 is Sahida Bibi, who is wife of the informant. PW-3 had stated in her evidence that on the day of occurrence at 7:00 O'clock in the evening, she was serving food to her husband at her home and in the meantime accused Akhter and Asgar came inside opening the door and fired bullet on her husband, which hit him. When she came out crying, she saw Idris and Teman there, along with Akhter and Asgar and Akhter was carrying a gun. PW-3 further stated that Akhter had filed a case against her husband prior to this case. She was 7 steps away from her husband at the time of incident. Villagers had come after ten minutes of the incident. 9. PW-11 is Dr. Rajesh Kumar Agrawal. Initially the informant was examined by one Dr. I.P. Saha. PW-11 had identified the handwriting and the signature of Dr. I.P. Saha on the injury report dated 21.12.2001 of injured Ali Hasan Ansari. PW-11 stated that Dr. I.P. Saha had noted following injuries in the injury register over the right arm of the injured Ali Hasan Ansari: (i) 1”x ½”abrasion over middle part with tattoing mark over margin. (ii) ½” oval wound lower part situated laterally with tattoing mark wound of enterence. (iii) ½” oval wound on lower part situated medially without tattoing mark and overted margin- wound of exit. Doctor PW-11 further stated that following injuries were found over the left hand of the injured informant: i) At junction of 2nd metacarbel with proximal phalanx of index finger 1”x1/2” situated on dorsal part with tattoing mark. (iii) ½” oval wound on lower part situated medially without tattoing mark and overted margin- wound of exit. Doctor PW-11 further stated that following injuries were found over the left hand of the injured informant: i) At junction of 2nd metacarbel with proximal phalanx of index finger 1”x1/2” situated on dorsal part with tattoing mark. ii) ½” oval wound on dorsum of proximal phalanx of ring finger with tattoing mark with deformity. iii) Ecchymosis left hand dorsum present. Doctor further found abrasion injury measuring ½” x ½” with tattoing mark over the left shoulder joint. Doctor also found small wound with carbon particles over the jaw. X-ray of the left hand A.P. view showed fracture of proximal phalanx of ring finger. Doctor stated the time of injury to be within 24 hours and opined that wound was caused by firearm and was grievous in nature. Doctor had proved the injury report of the informant which was marked as Ext.-2. In his cross-examination PW-11 stated that that Dr. I.P. Saha did not find any injury on the vital part of the injured. ARGUMENTS ON BEHALF OF APPELLANT 10. (i). Mr. Arbind Kumar Sinha, the learned counsel for the appellant has submitted that as per the evidence of PW-1, PW-2 and PW-3, enmity is admitted since the appellant party had earlier lodged a case against the brother and father of informant for throwing bomb. Learned counsel further submitted that in view of the admitted enmity between the parties false implication cannot be ruled out. Doctor, who had initially examined the informant was not examined and therefore, the medical report cannot be relied upon. The medical report is not in support of the statement made by PW-1 injured. As per the evidence of PW-1 injuries were on the arm and finger, but, medical report of PW-1 is otherwise. The injury on finger is simple in nature, but, the actual doctor was not examined as a witness. (ii). Learned counsel further submitted that all witnesses are relatives and highly interested witness and not a single independent witness has supported the case. Learned counsel for the appellant submitted that PW-1, PW-2 and PW-3 are related witnesses, and apart from doctor PW-11 Dr. Rajesh Kumar Agarwal and PW-12 Nasim Haidar, who is an Advocate Clerk, the remaining other witnesses PW-4 to PW-10 are independent witnesses, who have not supported the prosecution case and were declared hostile. Learned counsel for the appellant submitted that PW-1, PW-2 and PW-3 are related witnesses, and apart from doctor PW-11 Dr. Rajesh Kumar Agarwal and PW-12 Nasim Haidar, who is an Advocate Clerk, the remaining other witnesses PW-4 to PW-10 are independent witnesses, who have not supported the prosecution case and were declared hostile. (iii). Learned counsel for the appellant has also argued that the Investigating Officer was not examined, hence, appellant did not get opportunity to cross-examine the Investigating Officer on the point of the place of occurrence, nature of weapons, recovery and nature of assault and injury and hence, caused prejudice to the appellant. Counsel has also argued that the FIR has not been proved validly because PW-12 Nasim Haider, is an Advocate Clark and he has proved the formal FIR, which is not proper. (iv). Finally, counsel for the appellant without admitting the guilt of the appellant submitted that the case is of the year 2001, hence almost 20 years have passed and the appellant has already suffered much during the trial and appeal. Moreover, at the time of incident appellant was a very young man of about 20 years and from the impugned judgment, no antecedent is indicated and the alleged shot was not on a vital part of the body and hence, these circumstances may be taken into consideration while deciding the appeal. 11. (i). Mrs. Suchitra Pandey, the learned amicus curiae has substantially supported the arguments of Mr. Arbind Kumar Sinha, the learned counsel for the appellant. However, reiterates that ocular witnesses are related witnesses and the independent witnesses would have been more trustworthy, but, no independent witnesses were examined. The original doctor, who had prepared the injury report of the injured informant was not examined. The prosecution did not try to call the original doctor, who had examined the injured informant, hence, the medical report is not proved. (ii). The learned amicus curiae has further relied upon the judgment passed by the Hon'ble Supreme Court in case of Vijender v. State of Delhi reported in (1997) 6 SCC 171 and referred to para-19 of the said judgment which reads as under: “19. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr U.C. Gupta, who held the post-mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW-21 clearly reveals that on the day he was deposing Dr Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post-mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also.” (iii). Learned amicus has further referred to and relied upon the judgment passed by the Hon'ble Supreme Court in Municipal Corporation of City of Ahmedabad v. Gandhi Shantilal Girdharlal and another reported in AIR 1961 Gujarat 196 and referred to paragraph No. 23 of the judgment which reads as under: “23. The Evidence Act does not make a medical certificate relevant except in some special cases such as those referred to in Section 32. Excluding such special cases, it is the opinion of the doctor that has to be proved as a relevant fact and not the medical certificate. The Evidence Act does not make a medical certificate relevant except in some special cases such as those referred to in Section 32. Excluding such special cases, it is the opinion of the doctor that has to be proved as a relevant fact and not the medical certificate. The doctor who issues a medical certificate stating his opinion has to be examined to give evidence – in the only permissible way – of his opinion and not, as observed in AIR 1953 Mad 858 , to prove the certificate. Even though the signature on the medical certificate is proved, the certificate would not be evidence of the opinion of the doctor except in such special cases as those referred to in Section 32.” ARGUMENTS ON BEHALF OF THE STATE: 12. Mr. S.K. Srivastava, the learned APP submitted that the accused persons including the appellant had entered into the house of the informant and fired from the gun in furtherance of their common intention, which shows the intention of the accused persons that their intention was to commit murder of the informant. Learned APP has also submitted that the acceptable and proper explanation for not taking evidence of Dr. I.P. Saha is available on the record, and in his place, PW-11 Dr. Rajesh Kumar Agrawal was examined as a specialist witness, who is competent to give his opinion regarding the injuries found on the body of the injured informant. The prosecution has been able to successfully prove the charges leveled against the appellant beyond the shadow of all reasonable doubts and hence, impugned judgment of conviction and order of sentence requires to be sustained and upheld by this court. FINDINGS 13. The conviction of the appellant is under section 307 IPC and section 27 Arms Act. Learned counsel for the appellant has raised certain defences in support of the appellant’s case:- (i). Firstly, learned counsel for the appellant has pleaded that fardbeyan was not proved as the fardbeyan was proved by an Advocate Clerk PW-12, who is a formal witness, which is not proper. I find that this argument of the appellant counsel is not tenable, because, the signature on the fardbeyan has been proved by the informant PW-1 himself which was marked as Ext.-1. (ii). I find that this argument of the appellant counsel is not tenable, because, the signature on the fardbeyan has been proved by the informant PW-1 himself which was marked as Ext.-1. (ii). Secondly, the argument raised by the learned counsel for the appellant is that the injury report Ext.-2 of the informant shall be proved by primary evidence, but, in the case in hand, injury report has been proved by the carbon copy and not by the original injury report. Regarding this defence, I find from the order dated 31.03.2009 and 27.07.2009 of the learned trial court that original injury register, in which the injury report of the injured informant Ali Hasan Ansari, was mentioned, was produced before the trial court during the trial and, thereafter, the original injury register was returned back to the Sadar Hospital and original injury register was substituted by its attested photo copy which was marked as Ext.-2. Hence, argument of the appellant’s counsel is falsified that injury report was not proved by the primary evidence because original injury register was produced before the learned trial court during the trial and defence had an opportunity to see the original injury report. (iii). Thirdly, learned counsel for the appellant has pleaded that due to non-examination of the Investigating Officer, the place of occurrence was not proved. Regarding this defence, I find from the statement under section 313 CrPC of the appellant that specific question was put to the appellant that on the day of occurrence appellant had entered into the house of the informant and had fired on the informant, to which appellant reply was simple denial. Appellant had an opportunity to raise his defence, that he had not entered into the house of the informant and did not fire on him, but, instead appellant simply denied and did not say anything in his defence. Hence, there is no doubt that bullet was fired in the house of the informant, which has also been supported by the two eye-witnesses PW-2 and PW-3. 14. (i). So far as evidence regarding causing injury to the informant by gun shot firing is concerned, I find that informant PW-1 Ali Hasan Ansari had deposed that appellant had entered into his house and fired at him as a result bullet hit on his arm and finger. 14. (i). So far as evidence regarding causing injury to the informant by gun shot firing is concerned, I find that informant PW-1 Ali Hasan Ansari had deposed that appellant had entered into his house and fired at him as a result bullet hit on his arm and finger. From the evidence of PW-3, who is the wife of the injured informant, I find that informant’s wife was also at home at the time of occurrence and she had witnessed the appellant entering into her house and firing on her informant husband. Further, PW-2, who is the father of the injured informant, had deposed that at the time of occurrence, he was in his room and on hearing sound of firing, he came out and saw his son in an injured condition. (ii). Now, coming to the evidence of the doctor, I find that initially informant was medically examined by Dr. I.P. Saha, but, Dr. I.P. Saha was not examined and in his place PW-11 Dr. Rajesh Kumar Agrawal was examined. PW-11 Dr. Rajesh Kumar Agrawal had stated that Dr. I.P Saha, in cadre division had joined in Bihar and he had no knowledge about his present posting. (iii). Further, on going through the Lower Court Record, I find that prosecution had filed an application dated 23.04.2008, before the learned trial court that Dr. I.P. Saha had been transferred to Bihar, during Cadre Division and it was prayed that a competent doctor, who may identify writing and signature of Dr. I.P. Saha be deputed and it was also prayed to produce the injury register dated 21.12.2001 of the injured Ali Hasan Ansari. Hence, learned trial court had by its order dated 25.02.2009 had ordered for appointing such medical officer, who can identify the writing and signature of Dr. I.P. Saha and also ordered for producing injury register dated 21.12.2001 concerning the injured informant. In such circumstances PW-11 Dr. Rajesh Kumar Agrawal was deputed and he was examined as PW-11. (iv). On going through the injury report Ext.-2 of the injured informant Ali Hasan Ansari, I find that informant had sustained three injuries over his right arm-(i) 1”x ½”abrasion over middle part with tattoing mark over margin,(ii) ½” oval wound lower part situated laterally with tattoing mark wound of enterence and (iii) ½” oval wound on lower part situated medially without tattoing mark and overted margin-wound of exit. Doctor also found injuries over the left hand-(i) At junction of 2nd metacarbel with proximal phalanx of index finger 1”x1/2” situated on dorsal part with tattoing mark and (ii) ½” oval wound on dorsum of proximal phalanx of ring finger with tattoing mark with deformity. 15. Hence, ocular evidence of the injured informant PW-1 and informant’s wife PW-3 are corroborated by the injury report Ext.-2 of the informant. Therefore, there is no reason why this Court suspects these witnesses and it is well laid down in the law that an injured witness is a reliable and trustworthy witness. Therefore, when this Court looks at the evidence of the injured informant PW-1, the evidence of his wife PW-3 along with the evidence of the doctor and the injury report Ext.-2 of the injured informant, the incident cannot be denied. Then, it is very difficult to go against the substance of the main accusation which is that there was a shot fired by the appellant on PW-1 informant resulting in pellet injury and, therefore, it is not possible to deny the allegations. 16. But, ongoing through the injury report Ext.-2 and cross-examination of PW-11 doctor, wherein PW-11 doctor had specifically stated in his cross-examination that injury was not on the vital part of the body, I come to the conclusion that injuries sustained by the informant was not on the vital part of the body. Further, from the fardbeyan and the deposition of the injured informant, I find that as many as four named miscreants including the appellant had come to the house of the informant. Hence, if appellant had an intention to kill the informant, he could have easily done so and finished the informant then and there, with the help of three other miscreants. Appellants could have also fired on the vital part of the body, because, appellant had entered into the house of the informant with one other miscreant. Hence, there was no intention on the part of the appellant to kill the informant. Further, as many as 7 injuries have been shown to be sustained by the injured informant. But, as regard the nature of injuries, doctor had simply stated that injury was grievous. But, doctor had not specifically opined that out of 7 injuries, which injuries were grievous and which injuries were simple in nature. Dr. Further, as many as 7 injuries have been shown to be sustained by the injured informant. But, as regard the nature of injuries, doctor had simply stated that injury was grievous. But, doctor had not specifically opined that out of 7 injuries, which injuries were grievous and which injuries were simple in nature. Dr. I.P. Saha, who had initially examined and gave opinion about injury being grievous was not examined by the prosecution. Hence, opinion of Dr. I.P. Saha that injury being grievous in nature becomes doubtful. But, at the same time, in presence of injury report of the injured informant and ocular evidence of injured PW-1 and PW-2, the occurrence of firing and injury sustained by the informant cannot be denied and hence, it can be safely inferred that injury sustained by the informant was simple in nature, if not grievous. 17. Learned amicus has relied on the judgment of Municipal Corporation of City of Ahmedabad (Supra) and submitted that in the case in hand injury report Ext.-2 of the injured informant was not proved by the primary evidence instead injury report Ext.-2 was admitted as an evidence, which is a carbon copy. It is also argued that original doctor i.e. Dr. I.P. Saha, who had initially examined the injured informant, was not cross-examined and hence, opinion of Dr. I.P. Saha as to nature of injury would not be evidence of the opinion of the doctor. In this regard, I have already discussed in the preceding paragraphs, the circumstances in which PW-11 Dr. Rajesh Kumar Agrawal was deputed to identify the signature of Dr. I.P. Saha. Further, the injury report Ext.-2 of the injured informant was in fact proved by the primary evidence as original injury register pertaining to injured PW-1 Ali Hasan Ansari was produced before the trial court. Further, Dr. I.P. Saha had opined the injury sustained by the injured to be grievous in nature, but, keeping in mind the ratio as mentioned in para-23 of the aforesaid judgment, I have not taken into account the opinion given by Dr. I.P. Saha, as to nature of injury, because Dr. I.P. Saha was not examined. Further, Dr. I.P. Saha had opined the injury sustained by the injured to be grievous in nature, but, keeping in mind the ratio as mentioned in para-23 of the aforesaid judgment, I have not taken into account the opinion given by Dr. I.P. Saha, as to nature of injury, because Dr. I.P. Saha was not examined. But, on the basis of strength of injury report Ext-2, evidence of injured informant PW-1 and informant’s wife PW-3, who is an eye witness to firing on her husband, I have come to the conclusion that at least it can be inferred that simple injury was caused to the injured. 18. Hence, based on the aforesaid reasons charges under section 307 IPC against the appellant Akhtar Ansari is set aside and now, it is modified to one under section 324 IPC. 19. Accordingly, the conviction of the appellant under Section 307 of the Indian Penal Code dated 17.04.2010 and its corresponding order of sentence dated 20.04.2010, passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj, Palamau in Sessions Case No. 301 of 2003, cannot sustain and are set aside and now modified to one under section 324 IPC. Conviction of the appellant under section 27 Arms Act requires no interference and is sustained and upheld. 20. As far as sentence is concerned, learned counsel for the appellant has submitted that the case is of the year 2001, hence almost 20 years have passed and appellant has already suffered rigor and vigour of trial. Moreover, at the time of incident appellant was only about 20 years of age and from the impugned judgment, no antecedent is indicated and the shot was not on a vital part of the body. Further, I.A. No. 4892/2021 is on record, which is a joint compromise petition between the informant and the appellant, in which both the parties have stated that both the parties are living amicably at present. Hence, given the mitigating circumstances appellant is now directed to serve 6 months RI under Section 324 of the Indian Penal Code. Sentence of RI for 2 years as imposed by the learned trial Court under Section 27 of the Arms Act remains. Any period already undergone shall be subtracted and both the sentences shall run concurrently. The bail bond of the appellant is hereby cancelled. 21. This court is thankful to Mrs. Sentence of RI for 2 years as imposed by the learned trial Court under Section 27 of the Arms Act remains. Any period already undergone shall be subtracted and both the sentences shall run concurrently. The bail bond of the appellant is hereby cancelled. 21. This court is thankful to Mrs. Suchitra Pandey, Amicus Curiae, for her assistance rendered to this Court. Member Secretary, JHALSA, is directed to pay remuneration to Mrs. Suchitra Pandey, Amicus Curiae, as per Rules. 22. Accordingly, Cr. Appeal (SJ) No. 403 of 2010 is dismissed with above modification in conviction and in sentence.