JUDGMENT

Birendra Kumar, J. - Altogether twelve accused persons faced trial in Sessions Trial No. 531 of 2008 corresponding to Harnaut P.S. Case No. 97 of 2006 before the learned Fast Track Court No. 1, Nalanda for offences under Sections 147, 148, 447/149, 307/149 and 307 I.P.C. as well as under Section 27 of the Arms Act. The eleven were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 I.P.C. and 27 of the Arms Act by the impugned judgment of conviction dated 04.12.2017. By order of sentence dated 06.12.2017 the appellant was awarded ten years rigorous imprisonment and a fine of rupees fifty thousand for offence under Section 307 I.P.C. In default of payment of fine, one year rigorous imprisonment was ordered. For offence under Section 27 of the Arms Act, three years rigorous imprisonment was awarded along with fine of rupees one thousand. In default of payment of fine, two months rigorous imprisonment was ordered.

2. The prosecution case as disclosed in the written report submitted by PW-4 Gajendra Prasad Singh is that on 11.06.2006 voting for Panchayat election was going on in village Laluadih P.S. (Telmar O.P.) Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar Singh (PW-2), Sudhir Singh (PW-5), Murli Manohar Singh (PW-1) and other villagers. At about 11:30 A.M., Mukhiya candidate Deshraj Singh Chauhan @ Dharmendra Singh along with his supporters (the twelve accused persons who faced trial) variously armed came to the Dalan (outer house of the informant) and exhorted others to kill Mukhiya i.e. PW-4. On that co-accused Dharmendra Singh fired at the informant but the informant hide himself behind a pillar. Others who were sitting there started fleeing. Then the appellant Babban Singh @ Daddan Singh, carrying a pistol, fired causing injury at the left eye of Shiv Shankar Singh (PW-2). Shiv Shankar Singh fell down and all who were firing returned to their house.

3. After investigation, the police submitted charge sheet and accordingly, the appellant and others were put on trial.

4. Pw-1 Murli Manohar Singh, PW-2 Shiv Shankar Singh, PW-3 Nand Kishore Singh, PW-4 Gajendra Prasad Singh and PW-5 Sudhir Singh have supported, in their respective depositions, about the date of occurrence, the manner of occurrence, the place of occurrence and the perpetrators of the crime as disclosed in the FIR. Save and except that Gajendra Prasad Singh (PW-4) deposed that it was co-accused Pawan Singh (since acquitted) who had caused injury to Shiv Shankar Singh at the left eye.

5. Pw-6 Dharmendra Kumar is a formal witness who has proved the formal FIR.

6. Pw-7 Dr. Parmanand Prasad Pal had treated the firearm injury on Shiv Shankar Prasad Singh. The injury report was proved by PW-7 and marked as Exhibit-7.

7. Pw-8 Rajesh Ranjan and PW-9 Arjun Prasad were investigating officer of the case. They have supported the investigation done by them.

8. Mr. Krishna Prasad Singh, learned senior counsel for the appellant contends that PW-4 Gajendra Prasad Singh who is informant of this case is not a hostile witness. He has deposed that it was co-accused Pawan Singh who had caused firearm injury at the left eye of Shiv Shankar Singh. His statement cannot be taken as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence is on the record. One is of PW-4 that the injury was caused by co-accused Pawan Singh and rest witnesses deposed that the injury was caused by the appellant. The conflicting evidence aforesaid makes the prosecution case doubtful.

Learned senior counsel further contends that on the very same evidence, eleven accused persons were acquitted by the same judgment without distinguishing how the case of the appellant was on separate footing to that of acquitted accused persons. The law is well settled that if two views are possible on the same evidence, the views in favour of the accused should be preferred. Learned se