JUDGMENT :

The instant criminal appeal has been preferred against the judgement of conviction and order of sentence dated 16.08.2003 and 22.08.2003 respectively passed by the court of 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 125 of 1997 whereby and whereunder the learned trial court convicted both the appellants for the offence punishable under Section 307/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 7 years therein.

2. Briefly stating, the prosecution story as unfolded in the beyan of the informant P.W. - 1 Daya Nidhi Pradhan was recorded by ASI Raj Kumar Choudhary of Keraikella, Police Station on 08.10.1991 at 02:00 hours. The informant alleged that his sister was married to Akhil Pradhan who drove her out of his house after assaulting and since then his sister had been living with the informant. On 08.10.1991 his Bahnoi Akhil Pradhan came his village with one miscreant (gunda) namely Anirudh Pradhan. On that day at 12:30 in the day when the informant had gone to river for taking bath, Akhil Pradhan along with Anirudh Pradhan came at river and his Bahnoi ordered Anirudh to kill the informant, upon which Anirudh Pradhan in order to kill him fired with his country made pistol at his stomach but the cartridge misfired and the informant raised hulla upon which the people taking bath in the river came there running and Anirudh Pradhan was caught with pistol by Premchand Pradhan, Manoj Pradhan and Rudo Pradhan. They also caught hold of Akhil Pradhan and brought them before Sarpanch, namely Lobin Bankira and from there they were brought to the police station where the accused persons were handed over to the police with the pistol.

3. On the basis of the aforesaid beyan of the informant, the officer-in-charge, Bandgaon, Police Station registered the above case under Sections 307/498(A)/109/34 I.P.C. and 25(A) Arms Act and had drawn a formal F.I.R. Police investigated the case and submitted charge sheet. Cognizance of the offence was taken and the case was committed. The learned trial court framed the charge against the appellant no. 2 Akhil Pradhan for the offence punishable under Sections 498(A) and 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and the appellant no. 1 Anirudh Pradhan was charged for the offence punishable under Section 307/34 of the Indian Penal Code and 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and trial of the case commenced.

4. After conclusion of the trial, the learned trial court found both the appellants guilty for the offence punishable under Section 307/34 of the Indian Penal Code and acquitted both the appellants Anirudh Pradhan and Akil Pradhan from rest of the charges and accordingly they were sentenced therein which is under challenge.

5. Heard Mr. Rajendra Pd. Gupta, learned counsel appearing for the appellants and Mr. Shiv Shankar Kumar, learned A.P.P. for the State.

Arguments on behalf of the Appellants

6. Assailing the impugned judgment of conviction and order of sentence, it has been submitted on behalf of the appellants that the learned trial court has committed gross error in passing the impugned judgment of conviction and order of sentence as it did not appreciate the evidences in a right prospective. The learned trial court did not consider the fact that the informant did not sustain any injuries and even after acquitting the appellants under Section 498-A of the Indian Penal Code and Section 25 (A) of the Arms Act found them guilty for the offence punishable under Section 307 of the Indian Penal Code when there was an allegation that the appellants had tried to kill the informant with the pistol shot. Further the learned trial court has failed to appreciate that the I.O. in this case has not been examined and, therefore, the factum of occurrence has not been established and when the very genesis of the charges for causing the offence of attempt to com