Barin Ghosh, J. -
(1.) A First Information Report was lodged on 18th February, 1992 at 06.30 P.M. by P.W. 2. In that, it was alleged that an attempt to loot him was made by the appellant, two of his brothers and by another person, who was accompanying them. At about that time, P.W. 1 was passing by on a bullock -cart alone. P.W. 1 greeted those four persons, who were of his village. Later on, P.W. 2 went to the village of P.W. 1, when he heard the sound of a gun shot and later came to learn from P.W. 1 that it was the appellant, Jeet Singh, who fired upon him with intention to kill when his two brothers and another person were with the appellant. It was also alleged that the other person, who was in the company of the appellant and his two brothers, was caught by the villagers at the place of occurrence. This First Information Report led to investigation and filing of a charge -sheet in respect of offences punishable under Sections 307 and 325 of the Indian Penal Code r/w Section 34 thereof and Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the charge -sheet, it was not indicated as to who fired upon. The charge -sheet, however, furnished basic ingredients for punishments to be meted out under the aforementioned provisions of law. Accordingly, charge was framed. In the charge -sheet, it was indicated that the prosecution intends to examine 12 witnesses to put home the charges. However, at the trial, only 7 prosecution witnesses deposed. No defence witness was examined. The trial court exonerated all the accused persons of the charges framed under all the provisions of law mentioned above, except the appellant under Section 307 of I.P.C. P.W. 1, in course of his examination, stated that it was the appellant who fired upon him when the other three accused persons were accompanying the appellant. He stated that one gun shot was fired and the same was fired by the appellant. P.W. 2, in course of his examination, stated that he lodged the First Information Report on the basis of information received by him from P.W. 1. He was declared hostile because he did not support the prosecution story as well as those mentioned in the First Information Report that an attempt to loot him was made by the appellant, his two brothers and their companion, who were accused in the case. He stated that he, P.W. 3 and P.W. 4 were standing while the appellant, two of his brothers and the other person were also standing, while P.W. 1 was passing them on a bullock -cart and, at that time, P.W. 1 greeted the appellant, two of his brothers and their companion. P.W. 3 and P.W. 4 were also declared hostile, inasmuch as, they also did not support the prosecution story that any attempt was made to rob/loot P.W. 2. P.W. 5 is the brother of P.W. 1. It was P.W. 5 who had taken P.W. 1 to hospital after P.W. 1 sustained gun shot injury. In his examination -in -chief, P.W. 5 stated that the appellant, two of his brothers and the other person, all of whom were charged, were assaulting P.W. 1. Dheer Singh, one of the brothers of the appellant, had a gun in his hand and he fired upon P.W. 1. In cross -examination, he said all three, namely, the appellant and both of his brothers fired upon and later stated one of them fired. P.W. 6 was the Investigating Officer and P.W. 7 was the doctor who attended P.W. 1 after he sustained the subject injury. According to the evidence of the doctor and the injury report, P.W. 1 sustained one gun shot injury. P.W. 5 was not declared hostile on the ground that he had stated that it was the brother of the appellant, namely, Dheer Singh, who had a gun in his hand and he fired upon. Therefore, the prosecution had led two parallel stories. One was that it was the appellant who fired upon and the other was that it was the brother of the appellant, Dheer Singh, who fired upon.
(2.) PRINCIPALLY , on the ground that; whereas the incident took place around 04.00 P.M. of 18th February, 1992 and P.W. 5 stated that the same had taken place at 03.00 P.M. of the same date, the court below doubted the presence of P.W. 5 at the time when the incident took place and, accordingly, exonerated all other accused persons and convicted the appellant for an offence punishable under Section 307 of the Indian Penal Code solely on the evidence tendered by P.W. 1. At this juncture, it must be kept in mind that the other person, who was allegedly accompanying the appellant and his brothers at the time the incident took place, died in course of trial. It is certainly permissible for the Court to believe or not to believe the oral testimony of a witness. May be, there is nothing wrong in not accepting the evidence tendered by P.W. 5, while he was examined in court. However, the fact remains that P.W. 5 was also a prosecution witness and he was not declared hostile. Therefore, the evidence tendered by the prosecution through P.W. 5 was also the case made out by the prosecution in course of trial. Whereas the prosecution story through P.W. 1 was that it is the appellant who fired upon, and at the same time the case of prosecution through P.W. 5 was that it is Dheer Singh, one of the brothers of the appellant, who fired upon. When the prosecution itself led two parallel stories in course of trial, no doubt, appellant became entitled to benefit of doubt.
(3.) IN the circumstances, the appeal succeeds and, accordingly, the judgment and sentence appealed against are set aside. The appellant is on bail. He need not surrender. His bail bond is cancelled and sureties are discharged. Let a copy of the judgment be sent to the court below alongwith lower court records.;