JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal is preferred against the Judgment and Order dated 08.07.2003, passed in Sessions Trial No.484 of 1999, State vs. Devraj under Section 307 IPC and Sessions Trial No.485 of 1999, State vs. Devraj, under Section 25 of the Arms Act, 1959 (for short, “Arms Act"), by the court of 4th Fast Track Court/Additional Sessions Judge, Haridwar (for short, “the case").

2. By the impugned judgment and order, the respondent Devraj (hereinafter referred to as “the accused") has been acquitted of the charges under Section 307 IPC and Section 25 of the Arms Act.

3. Facts briefly stated are that, on 25.05.1998, when PW1 Dhanpal Singh was asleep in his Ghair (a kind of courtyard). Suddenly, at 03:00 AM, he woke up and found that the respondent Devraj, the accused was standing near his cot holding a country made pistol in his hands. The DW1 Dhanpat Singh questioned the accused, at which, the accused fired at him. But, fortunately, the country made pistol could not fire. The informant raised alarm. Thereafter, Vijaypal, Dhanpat and other villagers came and apprehended the accused. From his possession, a country made pistol and a cartridge were recovered. An FIR of this incident was lodged. Investigation carried out. After investigation, a charge-sheet under Section 307 IPC and another charge under Section 25 of the Arms Act was submitted against the accused. These charge-sheets are basis of the cases. Accused was charged for the offences punishable under 307 IPC and Section 25 of the Arms Act, to which, he denied and claimed trial.

4. In order to prove its case, the prosecution examined four witnesses, namely, PW1 Dhanpal, PW2 Vijay Pal, PW3 Constable Charan Singh and PW4 Sub Inspector Dataram. Accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “the Code"). According to him, he has been falsely implicated due to enmity.

5. In his defence, defence witness DW1 Sompal was examined. After hearing the parties, by the impugned judgment and order, accused has been acquitted.

6. Heard learned counsel for the parties and perused the record.

7. Learned State counsel would submit that the findings recorded in the impugned judgment and order are against facts. The statements of PW1 Dhanpal Singh and PW2 Vijay Pal inspire confidence. They have mutually corroborated their statements. Their evidence is supported by the evidence of PW3 Constable Charan Singh and PW4 Sub Inspector Dataram.

8. It is submitted that merely because the recovery memo was not signed by the accused, it cannot be said that the whole case is false. There has been explanation for delay in lodging the FIR. Prosecution has been able to prove its case beyond reasonable doubt. But, the learned court below committed an error in acquitting the accused of the charges. Therefore, it is submitted that the appeal deserves to be allowed.

9. On the other hand, learned Amicus Curiae would submit that the recovery memo was not signed by the accused; FIR is delayed, but, there is no explanation for it; it is no injury case and the accused has categorically stated in his examination under Section 313 of the Code that he was picked up from his home, beaten up and taken to the police station.

10. Learned Amicus Curiae also argued that there is no forensic report to ascertain, that the allegedly recovered article was an arm.

11. Admittedly, there had been enmity between the accused and the informant. PW1 Dhanpal has admitted it. PW1 Dhanpal has reiterated the version of FIR in his examination before the court. According to him, on the date of incident, he was asleep at his Ghair, when at 03:00 AM in the morning he woke up, he saw the accused standing near his cot. He questioned the accused as to what was he doing there? At it, according to the witness, the accused tried to fire at the witness, but, it missed. The country made pistol could not fire. This witness raised alarm. At which, Vijay Pal, Dhanpal and other v