ABRAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Instant appeal arises out of the judgement and order dtd. 30/5/2018 passed by Additional District and Sessions Judge, Fast Track Court No.2, Fatehpur in S.T. No. 291 of 2015 (State vs. Abrar) arising out of Case Crime No.245 of 2015, under Sec. 307 IPC, Police Station Bindki, District Fatehpur as well as S.T. No.292 of 2015, under Sec. 3/25 Arms Act, arising out of Crime No. 250 of 2015, P.S. Bindki, District - Fatehpur, convicting the appellant under Ss. 307) IPC and Sec. 3/25 of Arms Act and sentencing him as under:

(2.) Heard Sri Sanjay Mishra, learned counsel for the appellant, Sri Deepak Kapoor, learned AGA for the State and perused the material placed on record.

(3.) The factual matrix of the case in brief relevant for the present appeal are that the de-facto complainant Rukhsana lodged an FIR at police station concerned on 18/7/2015 at 9:00 hours, on the basis of written report stating therein that his father Rashid had refused to give fish from his pond to accused Abrar on his demand and for that reason, the accused fired a shot at the fater of the informant on 18/7/2015 at 7:00 hours in front of the house of Ahmad. He rushed his father to Governemnt Hospital, Bindki with assistance of Gram Pradhan and co-villagers. His father was referred to Kanpur for treatment. FIR was lodged under Sec. 307 IPC at police station concerned. On the basis of secret information, the Investigating Officer arrested the accused during the course of investigation on 22/7/2015 at 12:50 hours near the trisection of Sarkandi, main road and recovered a countrymade pistol of .315 bore, one live cartridge and one empty shell of .315 bore. The Investigating Officer of case under Sec. 307 IPC prepared an arrest and recovery memo and got the signature of the accused and police witnesses thereon. The accused has confessed before police team that he used this countrymade pistol (tamancha) while firing a shot on Rashid on 18/7/2015 at 7:00 AM but his life was saved. He also stated that the empty shell is of the cartridge, which was used in commission of offence of attempt to murder. The local witnesses declined to stand as a witness for personal reasons. An FIR under Sec. 3/25 of Arms Act was also lodged on the basis of recovery memo prepared by S.I. Krishna Kumar Mishra, who is Investigating Officer of case under Sec. 307 IPC on 22/5/2015 at 14:20 hours. The injured Hazi Rashid was admitted in Chandni Hospital, Private Ltd., Arya Nagar, Kanpur for treatment on 18/7/2015 at 9:40 AM having received gunshot injury and was discharged on 11/8/2015, as revealed from discharge slip of the hospital, which is Ex.Ka-12. He was also operated in said hospital on 18/7/2015, as he received gunshot injury on right chest wall. The operation papers were proved by concerned Doctor as Ex.Ka-13 and Ka-14. The countrymade pistol, one live cartridge and one empty cartridge shell were sent for ballistic examination to FSL, UP, Lucknow. The report of FSL dtd. 22/6/2017 is placed on record, which is exibited as Ex.Ka11, wherein it is stated that one countrymade pistol of .315 bore, one empty cartridge shell of 8mm K.F. and live cartridge of 8mm K.F. were received for forensic examination. Two .315 bore cartridges were used in test fire from said pistol and its pellets were also recovered. The difference was observed between the empty cartridge shell received for examination and the cartridge shells, which were collected after test fire by said pistol with regard to firing pin, breach marks and lack of personal characteristics were found and thus, the empty cartridge shell received for examination was not fired by the said pistol. One fired bullet of .315 was also not having similarity in personal characteristics with those cartridges which were used in test fire by said pistol. Thus, the FSL report reveals that one bullet recovered from the chest of the injured during operation as well as the empty cartridge allegedly recovered from the possession of the accused at the time of his arrest were not found to be fired by the pistol allegedly recovered from the accused.