Acquittal upheld where prosecution fails to prove intent to commit murder beyond reasonable doubt.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

Crl.A.No.1790/2018 is preferred by the State, feeling aggrieved by the judgment of trial Court insofar as acquitting the accused for the offence punishable under Section 307 IPC .

Crl.A.No.1416 of 2019 is preferred by the license holder of the gun, namely the father of the accused, feeling aggrieved by the confiscation of the said gun MO.2 and rejection of his application filed under Section 457 of Cr.P.C.

2. We have heard both sides and perused the evidence and material on record.

3. The accused was charged for the offence punishable under Section 3 07 of IPC and Section 3 r/w 25 of the Indian Arms Act , 1959. The case of the prosecution is that on 07.03.2016, at around 1.00 a.m. when the victim - H.K. Surendra-CW.1 (PW.1) along with CW.2 Shashikumar H.H.(PW.2), CW.3 Rajendra(PW.3), CW.4 Kaushik (PW.4), CW.5 Puttaswamy, CW.6 Dharmesh, CW.7 Amaranath, CW.8 Keerthan and CW.9 Bhavan were celebrating Shivarathri festival in front of Ambedkar Samudaya Bhavan, the accused came and picked up quarrel for the reason that he was not invited by them to the said function. At about 2.30 a.m., he once again came and picked up quarrel with CW.1 and again, at around 3.10 a.m., he came holding a gun belonging to his father, with an intention to kill CW.1/H. K. Surendra and fired at him and at that time, CW.2/H. H. Shashikumar held his hand, hence the shot misfired. It is the further case of the prosecution that the accused used the gun belonging to his father to commit the murder of CW.1-H.K. Surendra and thereby violated the license conditions as defined under Section 3 of the Indian Arms Act , 1959 and thereby committed offence punishable under and Section 25 of the Indian Arms Act , 1959.

4. In order to establish the guilt of the accused, the prosecution in all examined 16 witnesses and got marked 11 documents and MOs. 1 to 4. The defence of the accused was one of total denial, however he did not choose to lead any evidence on his behalf.

5. The learned Sessions Judge on appreciation of the evidence and material on record came to the conclusion that the prosecution has not proved the charge under Section 307 IPC , but proved the offence punishable under Section 506 and Section 25 of the Indian Arms Act , 1959. The accused was sentenced to undergo imprisonment for a period of eight months, which he had already undergone.

6. Assailing the impugned judgment, learned H.C.G.P vehemently contended that the complainant i.e., PW.1, who is the victim in this case, as well as PW.3 to PW.7, have categorically stated that the accused came to the spot armed with a gun(MO.2) and fired at PW.1, and at that point of time, PW.2, Shashikumar held his hand, thus, preventing him from causing harm to PW.1. Hence, there is ample evidence to show that the accused brought the gun with an intention to commit the murder of PW.1 and fired at him with that intention. She contended that if there was no intervention by PW.2, PW.1 i.e., the victim in this case would have sustained gunshot injuries and died. She contended that the reasons assigned by the trial Court for not convicting the accused for the offence punishable under Sec