JUDGMENT
Vishnudeo Narayan, J.
1. The sole appellant named above has preferred this appeal against the impugned judgment dated 8-1-1990 passed in Sessions Trial No. 204 of 1087 by Shri Sushil Kumar Dwivedi, Sessions Judge, Santhal Parganas, Dumka whereby and whereunder the appellant was found guilty for the offence punishable under Section 324 of the Indian Penal Code and he was convicted but he was released under Section 360(1) of the Code of Criminal Procedure on furnishing bond of Rs. 2,000/- with two sureties of the like amount each for a period of one year to keep peace and to maintain good bahaviour. However, the appellant was not found guilty for the charge under Section 306 of the Indian Penal Code.
2. The prosecution case has arisen on the basis of fardbeyan (Ext. 3) of P.W. 4, Rewa Devi, daughter of P.W. 6, Arjun Kumar Mehta recorded by S.I. B.D. Prasad of Dumka P.S. in Sadar Hospital, Dumka on 26-7-1986 regarding the occurrence which is said to have taken place between 21.00 hours and 22.00 hours on 25-7-1986 in the common house of P.W. 6, Arjun Kumar Mehta and this appellant.
3. According to the prosecution case, the appellant and P.W. 6, Arjun Kumar Mehta are the full brothers and living in the common house alongwith their other brothers. It is alleged that an altercation took place between them regarding the partition of family properties between 9 O’clock and 10 O’clock in the night of 25-7-1986 inside the house and in course of the said altercation of P.W. 4, the informant intervened and directed her father not to have altercation with the appellant and at this the appellant pushed her as a result of which she fell down and she was also abused and intimated to be done to death. It is alleged that in spite of that, the informant persisted in intervening in the said altercation and attempted to take away her father P.W. 6 from there. It is alleged that the appellant in the meantime shot an arrow aiming at the chest of the informant which she warded off by left hand and a bleeding injury was caused on her left wrist by that arrow at the Verandah inside the said house.
4. The information came to the Sadar Hospital, Dumka on the following morning and got herself examined and treated regarding the said injury and thereafter her fardbeyan (Ext. 3) aforesaid was recorded and on its basis the case was instituted against the appellant by drawing the formal FIR (Ext. 4) on 26-7-1986 at 8.30 hours.
5 The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case due to enmity existing and alive between him and the father of the informant.
6. The prosecution has examined eight witnesses to substantiate the charge levelled against the appellant. P.W. 4, Rewa Devi is the informant of this case and daughter of P.W. 6, Arjun Kumar Mehta. P.W. 3 and P.W. 7 are the brothers of P.W. 6. Arjun Kumar Mehta and also of the appellant and they have turned hostile and do not at all support the prosecution case. The I.O. has not been examined in this case and P.Ws. 1 and 2 claim themselves to be the witness of the production cum seizure of four arrows from the common house of the parties as per seizure list (Ext. 5) but P.W. 1 has turned hostile and do not support the prosecution case in respect thereof. P.W 8 is a formal witness who has proved the fardbeyan (Ext. 3), the formal FIR (Ext. 4) and the seizure list (Ext. 5). P.W. 5, Dr. Sitaram Sah has examined the injury appearing in the person of the information in the Sadar Hospital, Dumka and injury report per his pen is Ext. 2 in this case. No oral evidence has been brought on the record on behalf of the appellant but certified copies of order passed in Title Suit No. 39 of 1979 of the Court of A.S.O. Dumka, Criminal Miscellaneous No. 51 of 1976 of the Court of S.D,O., Dumka, T.R. No. 680 of 1980 of the Court of S.D.J.M., Dumka, T.R.. No. 895 of 1986 of the Court of R.S. Mandal, Judicial Magistrate, Dumka and T.R. No. 53 of 1980 of the Court of S.D.M., Dumka have been brought on the record which are Ext. A series.
7. Assailing the impugned judgment of the learned Court below it has been submitted by the learned Counsel for the appellant that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred gravely in coming to the finding of the guilt of the appellant and the learned Court below did not at all consider the false implication of the appellant in this got up case due to the enmity existing and alive between the parties since several years prior to the occurrence. It has also been submitted that the evidence of P.W. 4, the informant is self inconsistent and it equally stands contradicted in material particular as per the averment made in the fardbeyan (Ext. 3) regarding the manner of the alleged occurrence and as per her evidence P.W. 4 her father cannot be termed as ocular witness of the occurrence. It has also been submitted that P.W. 3 and 7, residing in the said common house and allegedly present there have not at all supported the prosecution case which casts a cloud of suspicion to the very creditability of the prosecution case. It has also been submitted that as per the prosecution case only one arrow was shot at the informant which has caused injury on her left wrist but as per Ext. 5, four arrows including one broken arrow were produced before the I.O. and as such it is a circumstance of unimpeachable character to cast a cloud of suspicion regarding the manner of occurrence as averred in the fardbeyan (Ext. 3). Lastly it has been contended that the appellant stands seriously prejudiced in this case due to the non-examination of the l.O. as he stands debarred from eliciting facts in his cross-examination showing his innocence and also contradicting the statement of P.W. 6 and P.W. 4, recorded under Section 161 Cr. P.C. vis-a-vis their evidence on oath in this case. It has also been submitted that in view of the infirmities as stated above, the impugned judgment is unsustainable.
8. The learned A.P.P. has submitted that after the conviction of the appellant he stands released on execution of probation bond of Rs. 2,000/- with two sureties of the like amount each for a period of one year for maintaining peace and good conduct, therefore, this appeal has no relevancy at all. It has also been submitted that release the convict on execution of bond under the provisions of the Probation of Offender’s Act or under Section 360 of the Code of Criminal Procedure does not tantamount to a conviction. It has also been submitted that the evidence of P.W, 4, the informant is worthy of credit which stands corroborated by the medical witness and the learned Court below has rightly come to the finding of the guilt of the appellant under Section 324 of the Indian Penal Code and viewed, thus, there is no illegality in the impugned judgment.
9. According the prosecution case, an altercation was going on between the informant and his full brother, P.W. 6, Arjun Kumar Mehta inside the common house over the issue of partition of family properties between 9 O’clock and 10 O’clock in the night of 25-7-1986 and P.W. 4, Rewa Devi, the daughter of P.W. 6 aforesaid intervened and was prevailing upon her father not to have any altercation and she was pushed by the appellant as a result of which she fell down and she was also abused and also intimated to be done to death and even thereafter when P.W 4 did not stop intervening in the altercation the appellant is alleged to have shot an arrow aiming at the chest which she warded off by her left hand causing bleeding injury on her left wrist. P.W. 5, Dr. Sitaram Sah has deposed to have examined the injuries found on the person of P.W. 4, Rewa Devi and found one punctured wound 1/4″ x 1/ 4″ x skin deep with bleeding over left wrist on ulnar side. The medical witness has further deposed that the said injury is simple in nature caused by any pointed weapon may be an arrow and the age of injury was within twelve hours. However, the medial witness in para 3 of his cross-examination has categorically stated that the said injury may also be self manufactured or may be caused due to fall on the sharp edged substance. It is relevant to mention here at this stage that according to the prosecution case P.W. 4, the informant had admittedly fallen on the ground when she has been pushed by the appellant as per her evidence. P.W. 4 has deposed regarding the altercation taking place between the appellant and her father and her intervention therein. She has deposed specifically that in the course of altercation the appellant shot an arrow at P.W. 6 but it did not hit him. She has further deposed that thereafter the appellant shot an arrow aiming at her chest which she warded off by her left hand causing bleeding injury on her left wrist. She has also deposed that P.W. 6 and her brothers, Manoj Kumar Mehta and Samir Kumar Mehta concealed themselves in the room of the house and they shut the door of the said room from inside. Her evidence is further to the effect that thereafter the appellant shot another arrow which did hit on the window of the house and thereafter P.’W. 6 as well as her uncles fled away from there. The manner of occurrence regarding shooting of three arrows, firstly at P.W. 6 and lastly which hit at the window of a room, does not stand corroborated as per the averments made in the fardbeyan. P.W. 6 has given a different version of the occurrence in question. According to him, there was a dispute regarding the partition of the house and he has locked a room in the said house on 25-7-1986 in the evening and thereafter an altercation took place between him and the appellant and his elder brother, P.W. 7, Kalipad Mehta intervened in the matter and all of them including the appellant went inside their respective rooms in the house. He has further deposed that all of sudden the appellant brought bow and arrow and shot an arrow at the informant which caused bleeding injury on her left wrist and he tired to save the informant and at this the appellant shot an arrow at him. However, it did not hit him and thereafter he concealed himself inside the room when an arrow was hit at the window of the said room. The evidence of P.W. 6 does not at all support the evidence of informant as well as the averments made in the fardbeyan regarding the occurrence in question. Therefore, the evidence of P.Ws. 4 and 6 being contradictory and inconsistent with the averments made in the fardbeyan regarding the occurrence in question is definitely not worthy of credit. Furthermore, P.Ws. 3 and 7 are the equidistant relatives of the appellant as well as father of the informant and at the time of the occurrence as per the evidence of P.W. 6 they were present in the said house but they have not come forward to support the prosecution case. Therefore, there is no legal evidence of any independent, natural and competent witness to corroborate in material particulars the testimony of P.W. 4, read with the evidence of P.W. 6. the I.O. has not taken oath in this case and there is no legal evidence on the record regarding the production of four arrows by P.W. 6 to him. And last but not the least, as per the prosecution case only three arrows were shot by the appellant but from where the forth arrow has come at the place of occurrence and produced before the I.O. in this case. In this view of the matter, the non-examination of the I.O. has definitely caused prejudice to the appellant in the facts and circumstances of the case besides the fact that the appellant stands debarred of contradicting the evidence of P.W. 4 and 6 vis-a-vis their statements recorded under Section 161 of the Cr. P.C. Therefore, in the facts and circumstances of the case no reliance can be placed on the testimony of P.W. 4 and 6. The medial witness has categorically deposed that or it may be self-manufactured. Shooting of three arrows by the appellant as alleged is inconsistent with the manner of the prosecution case. In view of the nature of the injury having been self inflicted or having been caused by fall on the sharp edged substance cannot be totally ruled out specially when there is enmity existing and alive between the parties several years prior to the occurrence. Therefore, the self inconsistent evidence of P.W. 6 and P.W. 4 cannot form the basis for coming to the finding of the guilt of the appellant. The learned Court below did not consider the evidence in proper perspective and meticulously and has gravely erred in coming to the fining of the guilt of the appellant for the offence under Section 324 of the Indian Penal Code also. Therefore, the false implication of the appellant in the facts and circumstances of the case cannot be totally ruled out and the defence version, therefore, appear to be probable. Therefore, the impugned judgment suffers with illegalities which requires an interference therein.
10. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. The appellant is not found guilty for the offence under Section 324 IPC and he is, accordingly, acquitted. He is also discharged from the liabilities of the bond which has been executed in pursuance of the impugned judgment.