1. Heard Mr. Sabyasanchi, learned counsel for the appellant and Mrs. Ruby Pandey, learned counsel for the State.

2. The present appeal is directed against the Judgment of conviction dated 21.01.2019 and order of sentence dated 25.01.2019, passed by the learned Additional Sessions Judge-III, Garhwa, in Sessions Trial No.57 of 2017, arising out of Majhiaon P.S. Case No.200 of 2013 (G.R. No.2071 of 2013), whereby the appellant has been convicted for the offence under Sections 341/ 349, 323/ 149, 307 of the Indian Penal Code (in short IPC) and Section 27(1) of the Arms Act, and has been sentenced to undergo simple imprisonment for one week for the offence under Sections 341/ 149 IPC, rigorous imprisonment for six months for the offence under Sections 323/ 149 IPC, rigorous imprisonment for four years with fine of Rs.5,000/- (Five thousand) for the offence under Section 307 IPC and rigorous imprisonment for four years for the offence under Section 27(1) of the Arms Act with default clause. All the sentences were directed to run concurrently.

3. The criminal law has been put into motion by lodging an F.I.R being Manjhiaon P.S. Case No.200 of 2013 dated 22.08.2013 under Sections 147/ 148/ 149/ 341/ 323/ 324/ 326/ 452/ 307/ 504 IPC read with Section 27 of the Arms Act, against 21 named accused persons including the present appellant.

                  The prosecution story, in short, is based upon the fardbeyan of Suresh Yadav, that on 22/08/2013 at about 08:30 A.M, he was in his house along with family members. Suddenly altogether 21 accused persons, (1) Halkan Yadav, (2) Baijnath Yadav, (3) Surendra Yadav, (4) Teni Yadav, (5) Kamlesh Yadav, (6) Santosh Yadav, (7) Bablu Yadav, (8) Sanesh Yadav (9) Vishwanath Yadav, (10) Amerika Yadav, (11) Rajendra Yadav, (12) Mahendra Yadav, (13) Anil Yadav, (14) Sunil Yadav, (15) Ashok Yadav, (16) Pyari Yadav, (17) Kamlesh Yadav, (18) Ajay Yadav, (19) Shyam Sundar Yadav, (20) Kamlesh Yadav and (21) Ramashish Yadav came armed with lathi, Gadasa, Farsa and Balua and entered into the house of informant. Accused, Halkan Yadav and Baijnath Yadav fired From their pistols. They assaulted with lathi, Gadasa and Balua on Bodh Yadav, father of the informant, Radha Devi, wife of the informant, Nathuni Yadav uncle of the informant, Sakunti Devi wife of the brother of the informant, Kusum Kumari -niece, Ratni Devi - mother of informant, Jahri Devi -chachi, Bacchu Yadav- brother, Sheela Devi - brother's wife, Lal Bihari Yadav & Baleshwar Yadar- brother of informant with intention to kill them, causing severe bleeding injuries..

                  The police, after completing the investigation, has submitted the charge-sheet on 21.10.2023 and filed the subsequent charge-sheet on 29.09.2014 and the trial court has framed the charge on 10.04.2017 under Sections 147, 148, 341/149, 323/149, 324/149, 326/149, 452/149, 307/149 IPC and Section 27 of the Arms Act against the accused persons. Thereafter, the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.

4. To substantiate the charges, the prosecution has examined altogether 09 witnesses and their depositions, in short, are as follows:-

5. P.W.-1, Baleshwar Yadav, is the brother of the informant and one of the injured witness.

                  In cross-examination, he has deposed that there was a land dispute between the parties.

6. P.W.-2, Ram Lakhan Paswan, is the co-villager and he has been declared hostile.

7. P.W.-3, Lal Bihar Yadav, is the brother of the informant and he has supported the prosecution case. He identified the accused.

                  In cross-examination, he has stated that there was a land dispute between the parties.

8. P.W.-4, Rajeshwar Yadav, is the brother of the informant and he has also supported the prosecution case.

                  In cross-examination, he has deposed that the police has not taken his statement.

9. P.W.-5, Gorakh Yaav, is the cousin of the informant and he has identified the accused.

10. P.W.-6, Suresh Yadav, is the informant of the case.

                  In cross-examination, he has stated that there are 4-5 houses near the place of occurrence.

11. P.W.-7, Dr. Ramashish Choudhary, is the doctor who has proved the supplementary medical reports.

                  In cross-examination, he has deposed that the supplementary report was issued on a plain paper bearing dated 22.09.2013. He has not provided first aid to the injured persons. Further, none of the injuries were on the vital part of the body sufficient to cause death. He has opined that the injury may caused due to fall on a rocky surface.

12. P.W.-8, Shiv Lal Singh, is the Investigating Officer of the case. He has proved the memo of injuries i.e. Ext.-2 to Ext.2/5 and proved the same. He has stated that he has recovered two miss-fired cartridges and two empty cartridges of .315 bore. He has admitted that there is a land dispute between the parties.

13. P.W.-9, Dr. Godvind Prasad Seth, is also the doctor and he has proved the injury reports.

                  He has opined that the injuries may be caused due to fall and further non of the injuries are fatal for life.

14. On culmination of trial, the trial Court has acquitted 19 accused persons and only two accused persons, including the present appellant, have been found guilty. The accused, Baijnath Yadav has been released after due admonition by the trial court. The present appellant has been found guilty for the offence under Sections 341/149, 323/149, 307 IPC and Section 27(1) of the Arms Act and sentenced him, as stated above.

15. Being aggrieved by the aforesaid judgment of conviction, the appellant has preferred the present appeal.

16. It has been submitted by the learned counsel for the appellant that most of the prosecution witnesses have admitted that there is land dispute between the parties and one title suit is also pending between the parties. The Investigating officer of the case has also admitted that the occurrence took place due to the land dispute between the parties. It has further been submitted that no any independent witness has been examined in the present case.

                  On the above basis, prayer has been made that the judgment of conviction and order of sentence, be quashed and set aside and the appellant, be acquitted.

17. On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence.

18. Having heard learned counsel for the parties and from bare perusal of the impugned judgment, it appears that altogether 21 persons have been charged, but only two persons have been convicted and as such the conviction of the appellant under Sections 341/ 149, 323/ 149 IPC is totally unacceptable accordingly, the same is, hereby, quashed and set aside.

                  So far as conviction under Section 307 IPC and Section 27(1) of the Arms Act is concerned, it has been charged by using under Section 149 IPC, but for an individual act this appellant has been convicted on the strength of the evidence of P.Ws.-3 & 4 wherein the allegation has been made that the firing has been done from a pistol and the so called empty cartridges, recovered from the place of occurrence does not support the allegation because that is prohibited ammunition and for that even he has not been charged. Further, there is no firearm injury, as per the doctor. Thus, the conviction under Section 307 IPC and 27(1) of the Arms Act is also without any material on record.

19. In view of above discussions, this Court finds that the judgment of conviction is totally without application of judicial mind and without any material available on record.

                  Accordingly, the the Judgment of conviction dated 21.01.2019 and order of sentence dated 25.01.2019, passed by the learned Additional Sessions Judge-III, Garhwa, in Sessions Trial No.57 of 2017, arising out of Majhiaon P.S. Case No.200 of 2013 (G.R. No.2071 of 2013), is, hereby, quashed and set aside.

20. In the result, the appeal stands allowed and accordingly disposed of.

21. The appellant is on the bail, hence, he is discharged from the liability of bail bond.

22. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.