Section 417 (5) of the Code of Criminal Procedure bars an appeal under Section 417 (1) only if the application for special leave to appeal under Section 417 (3) was made in a case instituted upon a complaint.

Tarkeshwar Nath, J.

1. This appeal under Sub-section (1) of Sec. 417 of the Code of Criminal Procedure by the State of Bihar is directed against the judgment acquitting the respondents in respect of the various charges framed against them

2. The case of the prosecution was that Gudar Singh (P W. 1) had purchased a house from Musammat Dhaneshar Kuer (P. W. 14), the widow of Rambhaju Singh on the 20th June 1960 by a sale-deed (Ex 2), and after the purchase. Gudar Singh came in possession of that house. On the 27th January 1962, Gudar Singh was sitting in the Sahan of that house, hut, at about 2 P.M., these respondents turned up variously armed and Girija Singh (respondent No. 2) ordered the other respondents to break the lock of the eastern door and enter that house Respondents Sakaldip Singh and Girija Singh were armed with pistols, respondent Deosharan Singh had a Bhala, respondent Ram Lakshman Singh had a lathi, whereas, the remaining respondents, namely, Lakshman Sao and Barho Singh had pharsas Gudar Singh made a protest, but Sakaldip Singh Fired his pistol. Rambrichh Choukidar (P. W. 9) had arrived there and the smoke coming out of the pistol fired by Sakaldip Singh affected the eyes of the said Choukidar. Immediately after, Girija Singh fired his pistol, hitting Gudar Singh in his front teeth, chest and right arm. Thereafter, the respondents retreated and they could not break that lock. Saryu Singh (P. W. 5), brother of Gudar Singh, also happened to be there. This occurrence took place in village Neema, about four miles from police station Poonpoon, and Gudar (P. W. 1) lodged the first information report (Ex. 4) at 3-30 P.M., on the 27th January 1962, at police station Poonpoon. It was recorded by Rambilas Singh (P. W. 10), assistant inspector of police.

3. P. W. 10 prepared the injury report and sent Gudar Singh to Patna Medical College Hospital. He prepared the injury report of the Choukidar (P. W 9) as well. Thereafter Kamleshwar Tiwari (P. W. 12), the sub-inspector of police, took charge of this case on the same day at 5.30 P.M. and he investigated this case. P. W. 12 reached village Neema at 7 P.M. but as the night was dark he could not inspect the place of occurrence that night. He inspected it on the following morning at 7 A.M., and the occurrence, according to him took place in the Sahan in front of the house of Mosammat Dhaneshwar Kuer (P. W. 14) He noticed fired cartridge (Ex 1) below a Sim Later (Sir) and brickbats at some places He prepared a seizure-list (Ex 6) and a rough sketch map (Ex 7) He found one wad near the north-eastern corner of the house of P. W. 1. He submitted chargesheet against the respondents.

4. The respondents were committed to the Court of Session for trial, and, in the Sessions Court. Sakaldip Singh (respondent No. 1) was charged under Sections 148 and 307 read with Sec.149 of the Indian Penal Code and Sec.19 (f) of the Arms Act Girija Singh (respondent No. 2) was charged under Sec.19 (f) of the Arms Act and Sections 148, 307 and 326 of the Indian Penal Code. Deosharan Singh (respondent No. 3) was charged under Sections 148 and 307 read with Sec.149 of the Indian Penal Code Ram Lakshman Singh (respondent No. 4) was charged under Sections 147 and 307 read with Sec.149 of the Indian Penal Code, whereas, both Lakshman Sao and Barho Singh (respondents 5 and 6) were charged under Sections 148 and 307 read with Sec.149 of the Indian Penal Code.

5. Sakaldip Singh alleged that he was the sisters son of Rambhaju and he used to live with his maternal uncle in the disputed house His case, further, was that the widow of Rambhaju Singh had left her husband and he (Sakaldip Singh) had performed the cremation ceremony of Rambhaju after his death Sakaldip came into possession of the house, and he alleged that he was falsely implicated in the present case. He filed a written statement as well, characterising the prosecution case as false. Respondents 2 to 6 alleged that they were falsely implicated