Conviction under Section 307 IPC reversed due to hostile corroborative witness, inconsistencies between injured witness testimony and FIR, unexplained FIR delay despite prior police information, absent physical evidence, creating reasonable doubt.

JUDGMENT :

Ravindra Maithani, J.

The instant appeal is preferred against the judgement and order dated 23.10.2019/04.11.2019 passed in Sessions Trial No. 17 of 2016, State v. Jalaluddin @ Manoj, by the court of First Additional District and Sessions Judge, Kashipur, District Udham Singh Nagar. By it, the appellant has been convicted under Section 307 IPC and sentenced to life imprisonment and a fine of Rs. 20,000/- and in default of payment of fine, to undergo further imprisonment for a period of two years.

2. Briefly stated, the prosecution case is as follows. PW 1 Ram Avtar Singh lodged a first information report on 26.09.2015 at 08:15 a.m. at Police Station Kashipur, District Udham Singh Nagar. According to it, on 22.09.2015, PW 2 Vijay Pal Singh (Home Guard) and PW 3 Khemkaran (Home Guard) along with other Home Guards were on security duty of Sugar Mill, Kashipur (“the Mill”). In the night at about 10:45 p.m., they noticed four miscreants roaming around the Mill. When PW 2 Vijay Pal Singh and PW 3 Khemkaran tried to stop the miscreants, they pushed them and ran away. Both PW 2 Vijay Pal Singh and PW 3 Khemkaran chased them, but in the process, one of the miscreants fired at PW 2 Vijay Pal Singh by his country made pistol, due to which, he fell on the ground. The miscreant could be identified by PW 3 Khemkaran, who was the appellant Jalaluddin. The FIR also records that earlier also a report of theft was lodged against the appellant and others. Based on this report, Ex. A-1, chik FIR, Ex. A-12 was recorded and Case Crime No. 283 of 2015 under Section 307 IPC was lodged against the appellant and others. The extract of GD is Ex. A-13. The injured was taken to hospital. He was referred to higher centre also. Subsequently, according to the prosecution case, on 26.09.2015, from the possession of the appellant, a country made pistol along with cartridge case was also recovered, of which a recovery memo, Ex. A-2 was recorded and a chik FIR under Section 25 of the Arms Act, 1959 (“the Arms Act”) was recorded at Police Station Kashipur, District Udham Singh Nagar. This chik FIR is Ex. A-10. The Investigating Officer prepared a site plan of the incident and the place of recovery. Thereafter, the Investigating Officer submitted a charge sheet under against the appellant Jalaluddin and Mintu Sagar.

3. Based on the charge sheet submitted against Mintu Sagar, the proceeding of Sessions Trial No. 210 of 2016, State v. Mintu Sagar, was instituted. This Sessions Trial No. 210 of 2016 has also been decided by the common impugned judgment. Charge sheet under Section 25 of the Arms Act was also submitted against the appellant, based on which separate Sessions Trial No. 18 of 2016, State v. Jalaluddin, was lodged in the court of First Additional Sessions Judge, Kashipur, District Udham Singh Nagar. Sessions Trial No. 18 of 2016, State v. Jalaluddin was also decided along with Sessions Trial No. 17 of 2016, State v. Jalaluddin on 23.12.2019. In fact, the appellant has been acquitted of the charge under of the Arms Act. He has only challenged his conviction under Section 307 IPC.

4. On 21.03.2016, charge under Section 307 was framed against the appellant Jalaluddin and co-accused Mintu Sagar, to which they denied and claimed trial.

5. In order to prove its case, the prosecution examined as many as 11 witnesses, namely, PW 1 Ram Avtar Singh, PW 2 Vijay Pal Singh, PW 3 Khemkaran, PW 4 Inspector Arun Kumar