Inconsistencies in witness testimonies led to the acquittal of the appellant, as the prosecution failed to prove the charges beyond reasonable doubt.

JUDGMENT :

(Rajesh Kumar Verma, J.)

Heard Mr. Amish Kumar, the learned Amicus Curiae appearing on behalf of the appellant and Mr. Bipin Kumar, the learned Additional Public Prosecutor for the State.

2. This appeal is directed against the judgment of conviction dated 10.12.2012 and order of sentence dated 12.12.2012, passed by the Court of learned Ad hoc Additional Sessions Judge-II, Sitamarhi, in Session Trial No. 60 of 2005, GR No. 250 of 2004, arising out of Sahiyara PS Case No. 58 of 2004, whereby the appellant has been convicted for the offences punishable under Section 307 of the Indian Penal Code and under Section 27 of Arms Act and has been sentenced to undergo rigorous imprisonment for seven years, to pay a fine of Rs. 10,000/- (rupees ten thousand) and in default of payment of fine, to suffer further imprisonment for six months under Section 307 of the Indian Penal Code and to undergo rigorous imprisonment for three years, to pay a fine of Rs. 2,000/-(rupees two thousand) and in default of payment of fine, to suffer further imprisonment for one month under Section 27 of Arms Act. All the sentences have been directed to run concurrently.

3. The prosecution case in brief is that in the night of 26.02.2004, the informant heard the sound of firing and saw around twenty to twenty-five persons, armed with weapons, entering his house and started looting the household articles. It is further alleged that the informant identified the appellant, co-accused Nathuni Rai, Bilas Rai and his son. It is further alleged that while fleeing, co-accused person Nathuni Rai fired and the bullet hit the informant’s left thigh and the appellant also fired at the informant’s chest. It is lastly alleged that the accused persons assaulted informant’s uncle, namely, Gaya Singh with lathi.

4. The fardbayan of the informant lead to registration of Sahiyara PS Case No. 58 of 2004 under Sections 147, 307, 324, 395 and 397 of the Indian Penal Code and under Section 27 of Arms Act. The charges were framed under Sections 147, 307 and 324 of the Indian Penal Code and under Section 27 of Arms Act on 30.03.2005. However, on 21.09.2010, the charges were also framed under Sections 395 and 397 of the Indian Penal Code.

5. The appellant pleaded not guilty and claimed to be trialed. The trial commenced and prosecution examined altogether six witnesses, out of whom PW-1, PW-4 and PW-2 are respectively the uncles and father of the informant, while PW-3 is the informant himself, PW-5 is the I.O. of the case and PW-6 is the doctor, who examined the injured persons.

6. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by the learned trial Court are bad in law as well as known facts of the case and no independent witness had supported the case of the prosecution and the witnesses examined in the case are uncles and father of the informant and the informant himself and the other witnesses are the I.O. and the doctor.

7. Learned counsel for the appellant submits that as per the FIR, the informant and his uncle (PW-4) were respectively assaulted with Nakatwa/lathi, but even their evidence are quite contradictory to each other and the learned trial Court has failed to take note of and passed the order of conviction and sentence and the learned trial Court has also failed to appreciate the fact that out of two eyewitness, the informant himself and the PW-4, who have given to different accounts of allegation/assault. As per informant, Nathuni Rai fired at thigh and the appellant fired at the right chest of the informant, on the other hand, the other witness, PW-4, deposed that the appellant fired at thigh and Nathuni Rai fired on the chest of the informant. The learned trial Court further failed to appreciate the evidence in respect of appellant that informant himself had sated that on account of assault his leg fractured while he himself has stated/deposed that the appellant fired at his chest, even if taken as true, the auth