Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I, J.

The arguments of this appeal was concluded on 19.09.2016, when, following order was passed by us:

Heard Shri Arvind Kumar Dixit, assisted by Shri Raj Bahadur Verma, learned counsels for the appellant, Shri Saghir Ahmad, learned A. G. A. assisted by Sri J. K. Upadhyay, learned A. G. A., Kumari Meena, learned A. G. A. and Mrs. Manju Thakur, Brief Holder appearing for the State.

We will give reasons later but we make the operative order now.

The appeal is allowed. The impugned judgment and order dated 9.11.2006 passed by the Special Judge, Dacoity Affected Area, Etawah in Special Sessions Trial No. 104 of 2005, arising out of Case Crime No. 25 of 2005; State Vs. Mahendra alias Guddan convicting the appellant under sections-307/34, 364 A IPC and Sections-25/27 Arms Act and sentencing him to seven years' R. I. coupled with fine of Rs. 1,000/- and in default of payment of fine one year's additional R. I. on the first count and imprisonment for life coupled with fine of Rs. 5000/- and in default of payment of fine, three years' additional R. I. on the second count and three years' R. I. coupled with fine of Rs. 1000/- and in default of payment of fine, one year's additional R.I. on the third count, respectively is hereby set aside.

The appellant is acquitted of all the charges framed against him. Appellant is in jail, he shall be released forthwith unless and until he is wanted in any other case.

There shall, however, be no order as to cost.

Here are the reasons:-

By way of instant criminal appeal, challenge has been made by the appellant- Mahendra @ Guddan to the judgment and order of conviction dated 9.11.2006, passed by Special Judge (Dacoity Affected Area, Etawah), in Special Sessions Number 104 of 2005 arising out of case crime no.25/2005 and 26/2005, under Sections 307, 364A IPC and 25/27 Arms Act, Police Station Bakewar, District Etawah.

Record reveals that first information report was lodged by Sri Ramnath Singh Yadav, Station House Officer, Police Station- Bakewar, District Etawah at police station Bakewar on 25.02.2005 at 11.30 P.M. regarding the alleged offence committed by accused-appellant, under aforesaid Sections of Indian Penal Code, Dacoity Affected Area Act, and Arms Act, respectively, with allegations that while he was on surveillance duty accompanied by S.I. Sri Suresh Kumar Yadav, Constable Shyam Singh in his area on 25.2.2005 and they reached at police out-post Lakhna, who were busy in patrolling duty and as soon as they reached near Jhal Canal Bridge area, across the Bumba Ki Puliay, and were going towards Ranipura Road leading to deserted place, they saw in the head light of jeep, three persons crossing Kharanja side of the road, along with one little child, in the loneliness of night. The police party became apprehensive and tried to stop them, whereupon, with the intention to kill, they fired on the police party, however, members of the police party somehow saved themselves believing that these people have kidnapped some child and are taking him to some deserted place, after combing and surrounding, the miscreants swooped upon them. Two, out of the three miscreants fled away from the scene, whereas one miscreant along with the child was caught ahead of culvert at 9.00 p.m. The child was crying. On being asked, he spelled his name as Rishabh @ Nishant and he spelled his father's name as Komal Kushwaha of village- Berikhera. The child was trembling with fear. When the miscreant was asked about his name, he spelled his name as Mahendra Singh @ Guddan, son of Sidh Gopal Jatav R/o Berikhera, police station Bakewar, Etawah. On search of his person, 0.12 bore country-made pistol with one empty cartridge from his possession were recovered and, beside this, the police party also recovered three live cartridges from the right pocket of his pant and took possession of the same. When they inquired about names of the other two accused, who had