G. Anupama Chakravarthy, J.—Criminal Appeal (SJ) No. 213 of 2004 is preferred by Arjun Tiwary and Criminal Appeal (SJ) No. 90 of 2004 is preferred by Dilkeshwar Tiwary. Arjun Tiwary is the son of Dilkeshwar Tiwary. Both the appeals arise out of the judgment dated 07.02.2004 on the file of First Additional Sessions Judge, Gaya in Sessions Trial No. 12 of 1998/120 of 1998, whereby Arjun Tiwary was convicted under Section 307 of the Indian Penal Code and Dilkeshwar Tiwary was convicted for the offences punishable under Section 307 r/w 34 of the Indian Penal Code and both were sentenced to undergo rigorous imprisonment for a period of seven years.

2. The case of the prosecution, as per the fardbeyan of the injured, Tejeshwar Tiwary, dated 02.10.1997, is that at about 09:00 AM on the same day while he was irrigating his field situated in Saidpur village, P.S. Mohanpur, Gaya District, the appellants Dilkeshwar Tiwary and his son Arjun Tiwary came with pistol and informed him that they will irrigate the fields. The informant objected, stating that he would irrigate the field. On this, Dilkeshwar Tiwary abused him and ordered to shoot firearm, whereupon Arjun Tiwary fired a gunshot at the informant, for which the informant/P.W. 1 sustained gun shot injury in his chest and fell down. Upon hearing the commotion, many people gathered and took the injured P.W. 1 to State Dispensary, Fatehpur for treatment. The informant further stated that appellant Arjun Tiwary shot him with intention to kill.

3. Basing on the fardbeyan, a case was registered at Mohanpur Police Station vide Case No. 110 of 1997 for the offences punishable under Section 324, 307, 504 r/w Section 34 of the Indian Penal Code and under Section 27 of the Arms Act. After investigation, the police submitted a chargesheet against both the appellants for the above mentioned offences.

4. The Learned Chief Judicial Magistrate, took cognizance and committed the case to the Court of Sessions, and in turn the case was transferred to First Additional Sessions Court, Gaya. The trial Court framed charges against the appellant Arjun Tiwary for the offence punishable under Section 307 of the Indian Penal Code and against the appellant Dilkeshwar Tiwary for the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code. The charges were read and explained to them in Hindi, and both the appellants pleaded not guilty and claimed to be tried.

5. It is pertinent to mention that on 04.07.1998, the trial Court passed a detailed order stating that charges should also be framed under Section 27 of the Arms Act along with offences triable under Indian Penal Code. However, it is found that the trial Court did not frame any charge against the appellants under Section 27 of the Arms Act, though fardbeyan clearly disclose that the injured P.W. 1 sustained injury due to a country made pistol.

6. On behalf of the prosecution, P.Ws. 1 to 4 were examined and Exhibit 1 to Exhibits 4 were marked.

7. After considering the entire evidence on record, the trial Court convicted the appellants as stated above.

8. The points for determination in this appeal are (i) whether the trial Court is rightly convicted both the appellants for the offences punishable under Section 307 and 307 r/w Section 34 of the Indian Penal Code? (ii) whether the prosecution was able to prove the guilt of the accused for the charged offences beyond reasonable doubt?

9. Heard Mr. Dineshwar Mishra, the Learned counsel for the appellants and Ms. Anita Kumari Singh, the Additional Public Prosecutor, for the State. Perused the entire record.

10. It is necessary to re-appreciate the entire evidence on record to determine the points of determination in this appeal. On perusal of the fardbeyan i.e. Exhibit 2, it is evident that the informant gave a statement to Pubhendra Kumar Suman, S.I. of Police Station at 12:30 hours on 02.01.1997, while he was undergoing treatment at State Dispensary, Fatehpur. The contents of the fardbeyan disclose t