JUDGMENT

Sangita Dhingra Sehgal, J. Vide this common order, we shall dispose of the Crl. Appeal No. 272/2018 and Criminal Leave Petition No. 318/2018 arising out of the judgment/order dated 16.01.2018 passed by the District and Sessions Judge, North East District, Karkardooma Courts, Delhi wherein the accused Nos. 1 & 2 were acquitted of the offences punishable under section 307/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and accused No. 1 was convicted for the offence punishable under Section 25 of the Arms Act and sentenced to undergo Rigorous Imprisonment for a period of one year with fine of Rs.1,000/-.

2. The brief facts of the case, as distinguished by the learned Trial Court are reproduced as under:

"The facts of the prosecution case are that on 31.08.2009 at about 6am in Gali No. 5, Kabir Nagar, Delhi, accused Shamim Ahmed along with accused Mohd. Aftab and Babu Hotel Wala fired a gun shot at Mohd. Sanaulah and victim Mohd. Sanaulah suffered gun shot injury on his back the accused ran away from spot, somebody called 100 number and DD No. 5A was recorded about one person had fired gun shot at Kabir Nagar, PCR reached the spot and injured was taken to hospital by PCR where his statement was recorded. The injured Mohd. Sanaulah in his statement stated that he was a teacher in Dr. Jakir Hussain senior secondary school, Jafarabad. About an year ago prior to 31.08.2009 he was working as Imam in Madina Masjid situated in Kabir Nagar, Delhi. He stated that Shamim Ahmed, Mohd Aftab and Babu Hotelwala who used to run a hotel opposite Madina Masjid started making completely unfounded allegations against him and threatened him that they would kill him if he saw in Kabir Nagar. After that he then joined Dr. Jakir Hussain senior secondary school Jafarabad as a theology teacher. On 31.08.2009 at about 6am when he was returning from house of Hafiz Asrat at Kabir Nagar and he was moving towards his house. His house was situated in Gali No. 5 and as soon as he reached there the accused Shamim, Md. Aftab and Babu Hotelwala were standing in the Gali. When he reached the spot accused Aftab uttered "Shamim nikal katta aur maar sale ko. Aaj iska kaam tamam ker de" and asked Shamim to take out katta and kill him. The accused Shamim took out firearm Katta from his right side dub and then Babu Hotelwala uttered " jaldi kar dekhta kya hai maar goli" he then ran towards his house in Gali, accused Shamim fired shot from Katta he was aiming at his back with the intention to kill him, the bullet hit him on his back and he fell down on the ground. He raised hue and cry and all the three accused ran away. He further stated all the accused were known to him. On the basis of his statement case FIR No.187/2009 under section 307/34 IPC, P.S. Welcome, Delhi was registered. Both the accused Shamim and Aftab were arrested in the evening on 31.08.2008 however the third accused Babu hotelwala could not be traced. On the disclosure of accused Shamim Ahmed one country made pistol was recovered and one live cartridge and one fire cartridge was recovered from his house. That after completion of investigation a chargesheet u/s 173 Cr.P.C was prepared and was filed on 14.08.2012 in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial. On 10.09.2012 charges were framed against both the accused persons Shamim Ahmed and Md. Aftab for the offence punishable u/s 307/34 IPC and against accused Shamim Ahmed u/s 25/27 Arms Act also. The accused persons did not plead guilty and claimed trial for the offences charged against them."

3. To bring home the guilt of the accused persons, the prosecution examined 11 witnesses in all. The statements of both the accused persons were recorded under Section 313 of the Code of Criminal Procedure wherein they denied all the incriminating evidence against them and reiterated their innocence and examined 3 witnesses in their defence.