JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mrs. Snehlika Bhagat, learned amicus curiae for the appellant and learned P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 18-09-2003 (sentence passed on 19-09-2003) passed by Sri Ravindra Nath Varma, learned Sessions Judge, Dumka in Sessions Case No. 117/2000, whereby and whereunder, the appellant has been convicted for the offences under Section 307 IPC and Section 27 Arms Act and has been sentenced to undergo rigorous imprisonment for 10 years for the offence under and rigorous imprisonment for 2 years for the offence under Arms Act. Both the sentences were directed to run concurrently. 3. The prosecution case arises out of the fardbeyan of Sunilal Hansda recorded on 16.08.1999 in which it has been alleged that in the previous night, he along with his family members, after dinner were sleeping when at around 11:00PM, Madan Marandi and Jaisman Marandi had entered inside the house and Madan Marandi had fired at him near his temple. It has been alleged that when the informant raised an alarm, the accused person had fled away. Two years back, a dispute had taken place in a marriage ceremony, which according to the informant was the cause of occurrence. Based on the aforesaid allegations, Dumka P.S. Case No. 58/99 was instituted under Section 307 /34 IPC and Section 27 Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 117/2000. Charge was framed against the accused under and Arms Act which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as five witnesses in support of its case: P.W.1 Jadu Hansda has stated that on the date of occurrence, he had heard the sound of firing at which he rushed to the house of Sunil and he found Madan and Jaisman fleeing away. When he entered inside the room of Sunil, he found blood coming out from the left ear of Sunil.Sunil had disclosed to him that Madan had fired at him. In cross-examination, he has deposed that he was the first person to reach the place of occurrence. The injured was not conscious. When he entered inside the room of Sunil, he found blood coming out from the left ear of Sunil.Sunil had disclosed to him that Madan had fired at him. In cross-examination, he has deposed that he was the first person to reach the place of occurrence. The injured was not conscious. A quarrel had taken place earlier between Sunil and Madan in the marriage ceremony of the daughter of Jadu Hansda. The distance between the house of Sunil and Madan is 200 feet. Sunil had regained consciousness at 08:00AM. He and the others had stayed put in the house of Sunil the entire night. P.W.2 Tamar Hansda has stated that the incident is of four years back at around 11:00PM and he was in his house when he heard the sound of firing at which he came out of the house and saw Jaisman and Madan fleeing away. He had thereafter gone towards the house of Sunil where he saw blood coming out from the ear of Sunil. Sunil had disclosed that Madan and Jaisman had fired at him. In cross-examination, he has deposed that the name of the persons who had fired was disclosed to him by Sunil. P.W.3 Churki Murmu is the wife of the informant who has stated that on the date of occurrence she was sleeping in her house when Madan Marandi and Jaisman Marandi had entered inside her house and fired at Sunil Hansda.The firing was done by Madan Marandi. In cross-examination, she has deposed that she was sleeping with the informant when the incident had occurred. Blood had spilled in the mattress and it had also stained her wearing apparels as well as the wearing apparels of the informant. The informant was conscious even after being struck by a bullet. She had not gone to the Police Station in the night. The informant was taken to the hospital at 08:00AM the following morning. A quarrel had taken place between the informant and Madan Marandi at the marriage ceremony of the daughter of Jadulal. P.W.4 Sunilal Hansda is the informant and the injured who has stated that on 15.08.1999 at 11:00PM, he was sleeping with his wife and the door was open because it was hot inside when Madan Marandi and Jaisman Marandi entered into the house and fired at him. P.W.4 Sunilal Hansda is the informant and the injured who has stated that on 15.08.1999 at 11:00PM, he was sleeping with his wife and the door was open because it was hot inside when Madan Marandi and Jaisman Marandi entered into the house and fired at him. At the sound of firing, he and his wife got up from sleep and in the torch of his wife he had seen Madan Marandi standing with a pistol and Jaisman Marandi was also with him. At the sound of alarm raised by him and his wife, Jadu Hansda and Tamar had immediately arrived. Later on, several persons had assembled. He was taken to the Police Station where his fardbeyan was recorded. He has proved his signature in the fardbeyan which has been marked as Exhibit- 1 while the signature of Jaidhan and Kanu Murmu have been proved and marked as Exhibit- 1/1 and 1/2. In cross-examination, he has deposed that he was taken to the hospital in the morning. Prior to that, he was taken to the Police Station. P.W.5 Dr. P. Chakraborty was posted as a Medical Officer at Suri Hospital and on 16.08.1999, he had examined Sunilal Hansda and had found the following: i) Entry wound 1" x" x 2" over left cheek and in front of left ear with wide area (3"x4") of skin burn and tattooing. ii) Penetrating wound of hard palate and right side ½ " x ½" x 2". On x-ray, bullet was seen to be lodged in the posterior peritonsillar region on right side on the inside of right angle of mandible. iii) Huge swelling of both tonsillar pillar blocking the air passage and stridor. iv) Epistaxis. v) Bullet was removed through both internal and external approach under general anaesthesia. vi) ASOM of left ear with partial loss of hearing. vii) Swelling and disfiguration of face (recovering). He has proved the injury report which has been marked as Exhibit-2. In cross-examination, he has deposed that all the injuries found may be caused by a single shot of firing. 5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the commission of the offence. 6. Mrs. Snehlika Bhagat, learned Amicus Curie has submitted that the prosecution has failed to ascertain the identity of the assailant as the person who had fired at the informant. 5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the commission of the offence. 6. Mrs. Snehlika Bhagat, learned Amicus Curie has submitted that the prosecution has failed to ascertain the identity of the assailant as the person who had fired at the informant. P.W.4 is the victim but he has not specifically stated about the appellant firing at him. Mrs. Bhagat has submitted that the ingredients of Section 307 IPC have not been fulfilled in absence of any knowledge or intention on the part of the appellant. She has further submitted that the non- examination of the Investigating Officer has greatly prejudiced the case of the defence as the place of occurrence could not be proved nor could the Investigating Officer be confronted with the contradictions appearing in the evidence of the witnesses. 7. Learned P.P. has submitted that P.W. 3 and P.W. 4 are the eyewitnesses to the occurrence who have categorically stated about the firing made by the appellant and the medical report being corroborative of the said fact, the learned trial court has rightly convicted the appellant for the offences under Section 307 IPC and Section 27 Arms Act. 8. We have heard the learned counsel for the respective parties and have also perused the trial court records. 9. The incident of firing occurred when both the informant and her husband were sleeping. The assailants had entered through the door which according to P.W.4 was kept open to reduce the stuffiness in the room as it was hot inside. It is no doubt true that an incident of firing had indeed taken place resulting in firearm injury suffered by the informant but it is to be seen as to whether the appellant was the perpetrator of the offence or not. In such context, the evidence of P.W.3 and P.W.4 assumes significance since both were present when the incident had taken place and both claimed themselves to be the eyewitnesses. As per P.W.3, though she has named the appellant as the person who had shot at her husband but her cross-examination reveals that after the sound of firing, she and her husband awakened and started raising alarm. As per P.W.3, though she has named the appellant as the person who had shot at her husband but her cross-examination reveals that after the sound of firing, she and her husband awakened and started raising alarm. This can be construed to mean that the firing upon P.W.4 was made while asleep and both P.W.3 and P.W.4 were in a daze when the incident occurred and such a sudden act would not facilitate the identification of the appellant and that too at 11:00PM. P.W.3 has not mentioned about any source of light for identification of the assailants and this runs contrary to the evidence of P.W.4 who has stated that he could identify the appellant from the flash of the torch put on by P.W.3. Though the place of occurrence has not been described on account of the non-examination of the Investigating Officer, but what can be gathered from the fardbeyan is that it was a rural setup and absence of light would be a foregone conclusion since the incident had taken place more than two and a half decades back. P.W.4, who had bore the brunt of the firing has not stated about the appellant firing at him but has stated that the appellant was standing with a firearm. His claim of identification is again based on the light emanating from the torch which we have already dissuaded by virtue of the evidence of P.W.3. The non- examination of the Investigating Officer has led to the defence being unable to confront him with the various contradictions appearing from the evidence of P.W.3 and P.W.4. There has been no recovery of any incriminating articles from the possession of the appellant. The discussions made by us conclusively points to the fact that the prosecution witnesses have failed to identify the appellant as the assailant. Such findings would lead us to the presence of motive. As per the prosecution, an incident of quarrel had taken place between the appellant and P.W.4 in the marriage ceremony of the daughter of Jadu Hansda and as per the fardbeyan, the same had taken place two years prior to the incident. As per P.W.1, the distance between the houses of the appellant and P.W.4 is 200 feet. As per the prosecution, an incident of quarrel had taken place between the appellant and P.W.4 in the marriage ceremony of the daughter of Jadu Hansda and as per the fardbeyan, the same had taken place two years prior to the incident. As per P.W.1, the distance between the houses of the appellant and P.W.4 is 200 feet. The long lapse of time, the proximity of the house of the appellant and P.W.4 and the subdued nature of the purported dispute could in no way be a motive leading to such brazen act of firing. 10. Thus, on the basis of the discussions made herein above, we hereby set aside the judgment and order of conviction and sentence dated 18-09-2003 (sentence passed on 19-09- 2003) passed by Sri Ravindra Nath Varma, learned Sessions Judge, Dumka in Sessions Case No. 117/2000. 11. This appeal is allowed. 12. Since the appellant is on bail, he is discharged from the liability of his bail bonds. 13. Pending I.A.(s), if any, stands closed. 14. We take this opportunity to appreciate the assistance rendered by Mrs. Snehlika Bhagat learned amicus curiae and consequently, we direct the Member Secretary, Jharkhand High Court Legal Services Committee to extend an amount of Rs. 10,500/- to the learned amicus curiae within a period of three weeks from the date of receipt/production of a copy of this order. Office is directed to send a copy of this order to the learned Member Secretary, Jharkhand High Court Legal Services Committee immediately and forthwith.