[Hon’ble B.C. Kandpal, J. (Oral)]

This Government Appeal has been preferred against the judgment and order dated 6.7.1998, passed by District & Sessions Judge, Haridwar, in S.T. No. 265/1992, State Vs. Luxman Giri and two others, whereby the accused/respondents were acquitted of the charges U/Ss 307/34, 302/34 I.P.C. and Section 27 Arms Act.

2. The prosecution story, in short, is that on 22.5.1992, at 5.45 P.M. S.I. D.N. Shukla lodged oral F.I.R. at P.S. Kotwarli, Haridwar with the allegations that on 22.5.1992 he had gone in the pairwee of case crime No. 626/1991, U/Ss 452, 307, 323 I.P.C. State vs. Bhusan and others, P.S. Kotwali, Haridwar. At 4.25 P.M. the Addl. District & Sessions Judge after recording the evidence of witness Mahesh Giri and Luxman Giri, fixed the case for further evidence on 19.6.1992. Thereafter, it was detected that Luxman Giri was in possession of his D.B.B.L. licensee gun, Kamal Giri was also in possession of his licensee pistol 405 bore and Mahesh Giri was empty hands. The further allegations is that Bhusan Talwar and Sunil, who were accused in commission of murder of Vinay Giri, son of Luxman Giri and being tried in the court, came on the road outside the court premises at about 4.30 P.M. and Bhusan Talwar twisted his moustaches and laughed at Luxman Giri. At this Mahesh Giri, told Luxman Giri and Kamal Giri what they are looking, the accused are laughing after committing the murder, so kill them. At this Luxman Giri with his DBBL Gun and Kamal Giri with his 405 bore rifle, opened fires at Bhusan and Sunil with the intention to kill them, which hit Bhusan and Sripal, who was standing nearby. Both the accused persons opened about 7-8 fires. Hearing the sound of fires, S.I. D.N. Shukla and constable Satya Kumar and Constable Mahendra Gupta, wanted to catch hold of the accused persons after taking out the revolver, but accused Luxman Giri, Kamal Giri and Mahesh Giri fled towards Jwalapur in Ambassador Car No. D.B.D. 8393. Constable Mahendra Gupta was left at the spot in order to maintain peace there and S.I. D.N. Shukla and constable Satya Kumar chased the accused persons riding in motorcycle. When they reached at Chandi Ghaat bridge, S.I. M.R. Dugtal, constable Jitendra Pal, constable Indra Pal and constable driver Ivne Siddique were there doing some checking and with their help the Ambassador Car of accused Luxman Giri, Kamal Giri and Mahesh Giri was got stopped and all the thee accused tried to escape. Any how the accused persons were caught at 4.50 P.M. towards Ganga river. The police recovered DBBL Gun with two empty cartridges and one belt of live cartridges from accused Luxman Giri and a 405 bore rifle with two empty cartridges and six live cartridges from accused Kamal Giri. The police after taking into possession the above arms and ammunition, prepared recovery memo, Ext. Ka-1. The recovered pistol, gun and cartridges were sealed in separate clothes at the spot. The injured Sripal succumbed to injuries, whereas injured Bhusan was admitted in Govt. Hospital Harmilap. On the basis of oral F.I.R. chick F.I.R. Ext. Ka-2 was prepared at the police station. The entry of registration of case against accused persons was made at G.D. report No. 43 and all the three accused persons with arms and ammunition were handed over by S.I. D.N. Shukla at the police station. The inquest report on the dead body of deceased Sripal, Ext. Ka-5 was prepared by S.I. R.P. Sharma and on the pointing out of S.I. D.N. Shukla the investigating officer prepared the site place of the place of occurrence, Ext. Ka-3. The empty cartridges from the place of occurrence were taken into possession vide recovery memo, Ext. Ka-4. The I.O. also prepared the site plan, Ext. Ka-9, of the place from where the accused were arrested. Pant, T-shirt and underwear of the deceased were sent for chemical examination, the report of which is Ext. Ka-11 and Ka.12. S.I. R.P. Sharma sealed the dead body of deceased Sripal and sent it for pos