JUDGMENT : Per R. Mukhopadhyay, J. 1. Heard Mr. Vikash Kumar, learned counsel appearing for the appellant, Mrs. Priya Shrestha, learned Spl. P.P and Mr. Awanish Shekhar, learned counsel appearing for the informant. 2. This Appeal is directed against the judgment and order of conviction and sentence dated 10.08.2018 passed by Shri Swarn Shankar Prasad, learned Additional Judicial Commissioner VII cum special Judge, CBI (AHD) cum Special Court (CAW), Ranchi in ST No. 339/2017, whereby and whereunder the appellant has been convicted for the offence under section 307 IPC and has been sentenced to rigorous imprisonment for 10 years along with a fine of Rs. 50,000/- and in default in payment of fine, to undergo simple imprisonment for one year. 3. The prosecution case arises out of the Fardbeyan of Shivbrat Sahu on 31.12.2016 wherein it has been stated that on the same day at 4:30 pm he was in his shop Krishi Kendra at Pithoria, when Pankaj Kumar Sahu (appellant) and Nitesh Gope came on an Apache motorcycle and after parking the motorcycle in front of a shop, entered inside and Pankaj Kumar Sahu had fired at the informant and the bullet struck his left thigh. The informant had placed one hand on his wound, while with the other hand he caught the pistol and dragged Pankaj Kumar Sahu outside the shop. It has been alleged that Pankaj Kumar Sahu took out another pistol and fired at him and the bullet had once again hit on the left thigh of the informant. It has been alleged that Pankaj Kumar Sahu thereafter fled away and went inside the shop “Jhankar”. When the persons of the locality arrived, they took the informant to RIMS where his treatment is going on. Earlier also there was a scuffle with respect to share of a land and Pankaj Kumar Sahu had assaulted the nephew of the informant with a knife on his abdomen. Pankaj Kumar Sahu had also set fire in the shop of the informant on an earlier occasion. 4. Based on the aforesaid allegations, Pithoria PS Case No. 134/16 was instituted under Section 307/34 IPC as well as Section 27 Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the court of sessions, where it was registered as ST No. 339/17. 4. Based on the aforesaid allegations, Pithoria PS Case No. 134/16 was instituted under Section 307/34 IPC as well as Section 27 Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the court of sessions, where it was registered as ST No. 339/17. Charge was framed against the accused under Section 307/ 34 IPC and under Section 27 Arms Act which were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. 5. During trial the appellant was convicted, while the accused Nitesh Gope was acquitted by the learned trial court. 6. The prosecution has examined as many as seven witnesses in support of its case. 7. PW 1 Suraj Deo Sahu has stated that on 31.12.2016 at 4:30 pm he was standing outside the grocery shop of Bishram Sahu when he saw Pankaj Sahu and Nitesh Gope @ Lalu coming on an Apache motorcycle. After getting down from the motorcycle, Pankaj Sahu came towards him and all of a sudden took out a pistol and fired at him. The bullet missed its mark and when he started fleeing away, he was once again shot at, but he had a providential escape for the second time. He managed to save his life by entering into the shop of Janardan Nayak. He has stated that Pankaj Sahu and Nitesh Gope had thereafter gone towards the shop of his uncle Shivbrat Sahu. After some time, he heard the sound of firing and when he came out, he saw Pankaj Sahu and Nitesh Gope coming out from the shop of Shivbrat Sahu and going away. Pankaj Sahu had a pistol in his hand. When he went to the shop of Shivbrat Sahu, he found two firearm injuries on his left thigh. Shivbrat Sahu was taken to RIMS and the Fardbeyan of Shivbrat Sahu was recorded in the emergency Ward in his presence. He had also signed on the Fardbeyan which has been proved and marked as Exhibit 1. In cross-examination, he has deposed that he is the brother of Pankaj Kumar Sahu and there is a land dispute going on since 2009. There are several litigations pending between them. He had also signed on the Fardbeyan which has been proved and marked as Exhibit 1. In cross-examination, he has deposed that he is the brother of Pankaj Kumar Sahu and there is a land dispute going on since 2009. There are several litigations pending between them. He had earlier instituted a case against Pankaj Sahu and Ganesh Kumar Sahu for attempting to murder in which both have been acquitted by the learned trial court. He has deposed that there were 10-20 persons present at the place where he was standing which was outside the shop of Bishram Sahu. 8. PW 2 Neeraj Kumar did not support the case of the prosecution and was accordingly declared hostile by the prosecution. 9. PW 3 Shivbrat Sahu has stated that the incident is of 31.12.2016 at 4:30 pm. He was in his shop reading newspaper when all of a sudden Pankaj Kumar Sahu and Nitesh Gope came on an Apache motorcycle and parked it just in front of his shop. Both Pankaj Kumar Sahu and Nitesh Gope entered his shop and Pankaj Kumar Sahu took out a pistol and fired at him and the bullet struck his left thigh. He put one hand on his wound and the other on the pistol of Pankaj Kumar Sahu and dragged him outside the shop. He has stated that Pankaj Kumar Sahu took out a pistol and once again fired at him and the bullet again struck his left thigh. Thereafter, both the miscreants fled away in their motorcycle. His Fardbeyan was recorded in the emergency ward of RIMS. He has proved his signature in the Fardbeyan which has been marked as Exhibit 2. At the time of recording of his Fardbeyan Suraj Deo Sahu was also present with him. Prior to this incident on 20.4.2016 Pankaj Kumar Sahu and his accomplices had set fire in his shop and he had also knifed Suraj Dev Sahu. In cross-examination, he has deposed that Pankaj Kumar Sahu is his own nephew. He and the father of Pankaj Kumar Sahu are on litigating terms. As soon as he had caught the accused, he had read the registration number of the motorcycle. He has deposed that he was struck by two bullets, but he did not fall on the ground. 10. He and the father of Pankaj Kumar Sahu are on litigating terms. As soon as he had caught the accused, he had read the registration number of the motorcycle. He has deposed that he was struck by two bullets, but he did not fall on the ground. 10. PW 4 Braj Kishore Sahu has stated that when the incident had taken place on 31.12.2016 at 4:30 pm, he was at Rajrappa. He came to know over phone that Pankaj Sahu had entered in the shop of his father and fired at him. At this information, he had gone to RIMS and found his father having a firearm injury in his left thigh. His father had disclosed that Pankaj Kumar Sahu had shot at him and Nitesh Gope was also with him. On 2.1.2017 he had given a CD of CCTV footage to the officer in charge of Pithoria Police Station. The CD was seized and a seizure list was prepared in which he had signed. He has identified his signature on the Seizure list which has been marked as Exhibit-3. He has identified his signature in the sealed cover of CD which has been marked as Exhibit 3/1. He has proved his signature over the certificate given by him that there has been no tampering in the CD and this has been marked as Exhibit 3/2. In cross-examination, he has deposed that the incident has not been witnessed by him and he came to know about the same from his father and the CCTV footage. Prior to this incident Pankaj Kumar Sahu had assaulted Suraj Deo Sahu with a knife, for which a case was also instituted. 11. PW 5, Tushar Kant Jha was posted as a Sergeant Major and on 21.04.2017 the seized material in connection with Pithoria PS Case No. 134/2016 was presented before him for examination. On opening the seal the seized materials were inspected by him which included cartridges of 9 mm and a pillet of 9 mm. The seized cartridges and pillet were manufactured in Ordnance Factory. After examination he had sealed the materials and returned it back to the Sub Inspector and had also prepared a report. He has proved the report which has been marked as Exhibit 4. In cross-examination he has deposed that no firearm was sent to him for examination. 12. The seized cartridges and pillet were manufactured in Ordnance Factory. After examination he had sealed the materials and returned it back to the Sub Inspector and had also prepared a report. He has proved the report which has been marked as Exhibit 4. In cross-examination he has deposed that no firearm was sent to him for examination. 12. PW 6 Chunwa Oraon was posted as an Officer In-charge of Pithoria PS and on 31.12.2016 at 7:20 pm he had recorded the Fardbeyan of Shivbrat Sahu in the emergency ward of RIMS. He has proved the Fardbeyan which has been marked as Exhibit 5. On the same day he had taken over the investigation of Pithoria PS Case No. 134/2016. He has proved the endorsement on the Fardbeyan which has been marked as Exhibit 5/1. The formal FIR has been proved and marked as Exhibit 5/2. He has also proved the seizure list of seizure of cartridges and seizure of CD of excerpts of CCTV footage which have been marked as Exhibit 5/3 and 5/4 respectively. The CD has been marked as material Exhibit-I. After taking over investigation, he had recorded the restatement of the informant and had also recorded the statement of Suraj Deo Sahu, Siddiqui, Ansari, Neeraj Kumar and Janardhan Nayak and all of them have supported the prosecution case. He had inspected the place of occurrence, which is at Main Road, Pithoria in the farm products and mobile shop of Shivbrat Sahu and in the back portion of the shop is the Parti land of Ram Sagar Gosai while in the south is the Main Road and Jhankar electronic shop; in the east is the house of Iqbal Churi while in the West is the shop of the brother of informant Madhu Sahu. From the place of occurrence he had seized two empty cartridges and two front part of a bullet. He had recorded the statement of Pankaj Sahu, had obtained the injury report of Shivbrat Sahu from RIMS, had obtained the report of the Sergeant Major and on completion of investigation had submitted charge sheet against the accused persons. The empty cartridges have been marked as material Exhibit Nos.-II and II/1, while the front part of the bullets have been marked as material Exhibit Nos.-III and III/1. The empty cartridges have been marked as material Exhibit Nos.-II and II/1, while the front part of the bullets have been marked as material Exhibit Nos.-III and III/1. On the orders of the court, the CD was run and both the accused could be seen entering into the shop and Pankaj Sahu firing at the informant and the informant trying to catch hold of Pankaj Sahu. In cross-examination, he has deposed that there is a land dispute between Shivbrat Sahu, Madhu Sahu and Ganesh Sahu regarding partition. The CD was not sent for analysis to FSL. In the CD, except the eyes of the accused nothing is visible. During the entire incident the accused persons were seen wearing monkey cap and not for once did they remove the monkey cap. Neither the informant nor the independent witnesses Neeraj Kumar and Siddiqui Ansari had disclosed in their statements that the accused persons were wearing monkey cap. 13. PW 7 Dr. Shalini Ekka was posted at RIMS, Ranchi and on 28.1.2017 she had examined Shivbrat Sahu and had prepared an injury report which contained the following injuries: 1. Single lacerated wound of size 1.5 cm x 1.5 cm deep wound present over middle of left thigh in front part with inverted edges (entry wound with no tatoo) 2. Single lacerated wound of size 1.5 cm x 1.5 cm deep wound present over lateral aspect of left thigh in upper part with averted edges (exit would) 3. Both lacerated wound are communicated from inside nature of injury was simple. Expert opinion was to be taken from radiological department of RIMS. The wounds were caused by fire arm. The nature of injury was opined to be simple. The wounds were caused by firearm. She has proved the injury report, which has been marked as Exhibit-6. 14. The statement of the accused were recorded under Section 313 CrPC, in which they have denied their involvement in the firing at the informant. 15. It has been submitted by Mr. Vikash Kumar, learned counsel for the appellant that the appellant has been implicated only on the basis of suspicion on account of previous enmity. It has been submitted that no independent witnesses have been examined and the evidence of PW 3 (informant) does not inspire confidence in view of the apparent contradictions and inconsistencies appearing in his evidence. 16. Mrs. Vikash Kumar, learned counsel for the appellant that the appellant has been implicated only on the basis of suspicion on account of previous enmity. It has been submitted that no independent witnesses have been examined and the evidence of PW 3 (informant) does not inspire confidence in view of the apparent contradictions and inconsistencies appearing in his evidence. 16. Mrs. Priya Shrestha, learned Special PP as well as Mr. Awanish Shekhar, learned counsel for the informant have submitted that the evidence of PW 3 is supported by the evidence of PW 1, which clearly indicate about the direct involvement of the appellant in trying to do away with the lives of both the witnesses. The recovery of empty cartridges is a pointer to the truthfulness of the allegations leveled against the appellant. 17. We have heard the learned counsel for the respective sides and have also perused the trial court records. 18. The Fardbeyan of PW 3 reveals about the appellant and Nitesh Gope entering into the shop of PW 3 and firing at him twice and coincidentally both the bullets struck PW 3 at the same place. This incident depicted by PW 3 seems to have been preceded by another incident wherein attempts were made to do away with the life of Suraj Deo Sahu, the nephew of the informant and the cousin brother of the appellant. As narrated by PW 1, while he was standing in front of the grocery shop of Bishram Sahu, the appellant and Nitesh Gope had come, alighted from their motorcycle and twice shot at PW 1, but on both occasions, he had a providential escape. As per PW 1, the accused persons had thereafter gone to the shop of PW 3 from where sound of firing was heard. This incident has, however, not been stated by the other witnesses. Even PW 3 has remained silent about hearing any firing prior to the appellant entering into his shop. The place of occurrence is a market and the evidence of PW 1 suggests that the distance between the shop of Bishram Sahu and that of PW 3 was minimal, yet the first incident was not disclosed by PW 3. Even PW 3 has remained silent about hearing any firing prior to the appellant entering into his shop. The place of occurrence is a market and the evidence of PW 1 suggests that the distance between the shop of Bishram Sahu and that of PW 3 was minimal, yet the first incident was not disclosed by PW 3. The evidence of PW 1 would therefore suggest that the same is actuated with malice on account of previous enmity between PW 1 and the appellant and the knife blow given earlier which, according to PW 1, has led to the acquittal of the appellant. No reliance therefore can be placed upon the evidence of PW 1. 19. So far as PW 3 is concerned, he is the informant as well as an injured witness. His evidence speaks of two shots fired at him by the appellant and both the bullet struck his left thigh. In fact, in the Fardbeyan also PW 3 had stated about the same fact. This assertion in the backdrop of the injury report seems to be exaggerated and false. The injury report reveals about a single wound over left thigh caused by firearm and the entry point and the exit point of the wound has been mentioned. There is no evidence that a second bullet injury was also found on the person of PW 3. The reason for such allegation is not hard to gather as the previous enmity seems to be the focal point based on which such heinous offence was committed. The evidence of PW 1 and PW 3 seems to suggest that the incident had taken place in a matter of fact manner. So far as the identification of the appellant is concerned, neither PW 1 nor PW 3 had stated that the miscreants were wearing monkey caps, but the CCTV footage speaks otherwise, as both the miscreants were seen in monkey caps with only their eyes visible and they had never taken off their monkey caps during the incident. The other notable feature is the absence of independent witnesses. The place of occurrence is a busy market place in main road of Pithoria and there were several persons present as would be evident from the testimony of PW 1. The other notable feature is the absence of independent witnesses. The place of occurrence is a busy market place in main road of Pithoria and there were several persons present as would be evident from the testimony of PW 1. However, only PW 1 and PW 3 are the witnesses of eminence, according to the prosecution, but as we have noted above, their evidence cannot be relied upon for the purpose of conviction of the appellant as the same seems to be totally unreliable. 20. Apart from the major contradictions and inconsistencies in the prosecution case, the existence of a previous enmity between both the sides would further catapult the case of the prosecution into the realm of ‘disbelief’. The learned trial court seems to have placed misplaced reliance on the evidence of the prosecution witnesses without considering its inherent inadequacies. 21. We therefore, on the basis of the discussions made here in above, set aside the judgment and order of conviction and sentence dated 10.08.2018 passed by Shri Swarn Shankar Prasad, learned Additional Judicial Commissioner VII cum special Judge, CBI (AHD) cum Special Court (CAW), Ranchi in ST No. 339/2017. 22. This appeal is allowed. 23. Pending interlocutory application stands closed.