JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 31.05.2004, passed by learned Vth Additional Judicial Commissioner, Ranchi corresponding to S.T. No. 100 of 2000/54 of 2003; whereby the appellant has been convicted for the offence under Section 307 of the IPC and Section 25(1-b), 26 and 27 of the Arms Act and sentenced to undergo R.I. for a period of Five years u/S 307 IPC and to undergo R.I. for a period of three years each u/s 25(1-b), 26 and 27 of the Arms Act. All the sentences were directed to run concurrently.

3. The brief fact of the case is that on 23.09.1999, the informant went to see Mela where the appellant along with other persons was standing next to the informant and was smoking on the face of the informant, to which he objected then the appellant took out a country made pistol and pointed out at the informant, seeing the same the informant twisted the hand of the appellant, which diverted the line of fire and other person, namely, Mangra Oraon sustained a bullet injury on his legs and the appellant fled away from the spot but the pistol was snatched by the informant and the same was handed over to the police.

4. Learned counsel for the appellants made the following submissions:

(i) The occurrence took place on 23.09.1999 at about 5 p.m. but the informant lodged the F.I.R. on the next day and the said delay has not been explained by the informant.

(ii) The prosecution has failed to bring the Ballistic report on record, hence not exhibited, which creates serious doubt about the authenticity of the same.

(iii) The independent witnesses who have signed the production cum seizure list are close relative of PW-4 Mangra Oraon, who got injured during the said occurrence.

(iv) In the FIR it is not stated about handing over of the said gun to the chowkidar which was snatched by the informant from the appellant during the fight, but in the examination in chief it has been deposed by the informant that the gun was handed over to the chowkidar on the same day of occurrence; if the said version of the story happens to be true then also the chowkidar has not been examined and the seizure list was prepared a day after the occurrence, thus the statement of the informant itself leads to major contradiction in his FIR visa-a-vis his deposition.

(v) PW-1 and PW-2 who happens to be the seizure list witness have stated that they arrived at the place of occurrence on hearing hulla, thus they cannot be considered to be eye witnesses to the incident and in the cross examination PW-1 Jagdeo Oraon has clearly stated that he has not seen who has fired an arm and has no knowledge about the gun. He has also deposed that he has seen the said gun a day after in the police station.

On the other hand, PW-2 Durga Oraon has deposed that he has not seen anyone firing but he has arrived at the place of occurrence after the incident and on the next date at police station the seizure list was already prepared before his arrival and he was asked to sign the same which was not prepared in front of him. Hence, prosecution has failed to prove its case beyond all shadow of reasonable doubt.

(vi) PW-4 Mangra Oraon, who during the said quarrel sustained bullet shot on his leg has deposed that he underwent treatment on the date of occurrence and on the next date he visited the police station, who sent him to Ratu Block for treatment, this version of the witness is not believable as after sustaining bullet injury it is not possible for the person to walk on the very next day and this witness went to the police station date after the incident.

Relying upon the aforesaid submissions learned counsel contended that no case is made out against the appellant for which the appellant has been convicted.

5. Learned APPs has supported the judgment and submits that there is no error or perversity in the impugned judgment as the learned trial court after dealing