JUDGMENT Shiv Shanker, J.
1. This criminal appeal has been preferred against the judgment and order dated 26.2.1999 passed in Sessions Trial Nos. 486 and 487 of 1998, State v. Parmeshwar Deen by IVth Additional Sessions Judge, Hardoi convicting and sentencing the appellant under Section 307 IPC and 25 Arms Act by awarding the sentence of ten years' R.I. And three years' R.I. Respectively. However, both the sentences were ordered to run concurrently.
2. Briefly, the prosecution story was that on 30.12.1997 at about 4.30 A.M. At village Ajaripurwa, Majra Simaaur within the local limits of Police Station Pihani, district Harodi, the appellant along with his some other companions fired upon the complainant Chhatrapati Singh, Station Officer and other police officials with intent to kill them due to which S.I. K.D. Tripathi, Constable Ram Autar and Vijay Pratap Singh sustained injuries. Therefore, the appellant was charged for the offence under Section 307 IPC. He was further charged for the offence under Section 25 Arms Act for recovery of one country made pistol of 315 bore and one live cartrdige and eight empty cartridges of 315 bore on the aforesaid date and time.
3. The prosecution in support of its case examined seven witnesses in all. P.W.1 S.I. Paramhans Yadav was the arresting officer and member of the police party. P.W. 2 H.C. (P.B.) Vijay Pratap was also the arresting officer and member of the police party as well as the injured witness. P.W. 3 S.I. Ashok Kumar Ashok Kumar Tiwari was also the arresting officer and member of the police party as well as the injured witness. P.W. 4 Constable Ram Autar was the arresting officer and is the witness of police party. P.W. 5 Constable Amar Singh had proved the Chik F.I.R., G.D. and Fard recovery of the recovered articles as well as formally proved the other related documents regarding the case. P.W. 6 S.I. Alagoo Singh Yadav was the Investigating Officer of the case and proved the facts in respect of the investigation. P.W. 7 Dr. O.N. Srivastava had medically examined the injured persons and proved the injuries reports Exts. Ka-8 to Ka-10.
4. The accused-appellant in his statement recorded under Section 313 Cr.P.C. had denied the prosecution case and pleaded that the police has falsely implicated him in the case due to enmity. It was further stated by the appellant in his statement that the incident actually took place on 30.12.2007 at 12'O clock in the night while he was sleeping in the house with his wife and children and not at 4.30 A.M., as alleged by the prosecution. The Station Officer of P.S. Pihani had come and got opened the door. However, the door was not opened by the appellant whereupon he fired upon the Kundhi due to which it was opened and the door was opened. Police had beaten him brutally and had taken away him upon the Jeep. In defence, the accused-appellant had examined Constable Amar Pal Singh as D.W. 1.
5. The trial Court after considering the evidence on record, held the appellant guilt and convicted and sentenced him, as mentioned above; hence this appeal.
6. Heard the Learned Counsel for the appellant and learned A.G.A. as well as perused the whole records.
7. Learned Counsel for the appellant has contended that the firing was made upon the injured persons by the appellant by a country made pistol of 315 bore as per the prosecution version. The same was also allegedly recovered from his possession but no injury of country made pistol of 315 bore was found on the person of any injured. The alleged injuries may be caused by a weapon of 12 bore. In absence of any bullet injury on the person of injured, the prosecution story become highly suspicious. It is further contented that blackening and scorching were found upon the person of injured persons but the site plan Ext Ka-4 reveals that all the three injured persons, who were members of the second party, were standing at a distance of twenty steps. Therefore, such injuries could not be caused from a long distance of twenty steps while the blackening and scorching were found in the injuries. There is no independent witness in this incident while the incident had allegedly took place in the village. The raiding party was headed by Station Officer of the concerned police station but has not been examined. The Investigating Officer was posted under the control of Station Officer. Therefore, he could not made fair investigation. The same has been made under the direction of the Station Officer who is the superior officer of the Investigating Officer. It is further contended that the appellant tried to run away from his house towards the police where the second party was available. He could run away for escaping himself. According to the prosecution case, the police personnels also opened fire in their defence but empty cartridges, which were allegedly taken from the spot, were not produced in evidence. While the weapon was opened, only B.L.P. cartridges were found. This also shows that no firing was by made any police personnel in the defence. It is further contended that Vijay Pratap had allegedly sustained injuries but he himself prepared the Fard Baramaagi regarding the incident while the same could not be made by him in an injured condition. The statements of the prosecution witnesses have been recorded with a great delay and no sufficient explanation had been given regarding it. There is no criminal history against the present appellant. He could not make firing after opening the door of his house but he could make firing easily from any specific place without opening the door.
8. On the other hand, there was enmity of Constable Maurya. The appellant was beaten brutally by the police Thereafter for saving their skin, the appellant has been implicated falsely in this case. In this regard, the remand magistrate had passed an order to register the case against the police personnels and made medical examination of the accused-appellant. However, such injuries have not been mentioned in the arresting G.D. Therefore, he has been falsely implicated in this case for saving themselves from any legal punishment regarding causing the injuries on the person of accused-appellant.
9. Learned A.G.A. has urged that three police personnels sustained fire arm injuries and that could not be manufactured. There is no motive for false implication against the appellant. All the prosecution witnesses have supported the prosecution story which is corroborated with the medical reports of the injured persons. There was no inordinate delay in lodging the first information report and the trial Court could has rightly convicted the accused-appellant.
10. In the present case, there is specific case according to the evidence of prosecution witnesses P.W. 1 S.I. Paramhans Yadav, P.W. 2 H.C.(B.P.) Vijay Pratap; P.W. 3 S.I. Ashok Kumar Tiwari; P.W. 4 Constable Ram Autar and P.W. 5 Constable Amar Singh, that the appellant was having a country made pistol of 315 bore from which he opened the fire upon the second party. Consequently P.W. 2 H.C.(B.P.) Vijay Pratap; P.W. 3 S.I. Ashok Kumar Tiwari; P.W. 4 Constable Ram Autar, sustained injuries. The injury report of all the three injured persons have been prepared as Exts Ext. Ka 8 to Ka-10. P.W. 3 S.I.Ashok Kumar Tiwari sustained fire arm injuries of entry 0.2 cm x 0.2cm x0.5cm in the area of 8cm x7cm on the left side of face 2cm above chin. Similarly, he also sustained two fire arm wound of entry wherein blackening and scorching were found. P.W. 4 Constable Ram Autar also sustained one fire arm abrasion 0.3cm x 0.3cm on the dorsal surface of the right hand, 4.5cm below right wrist joint. Burning and scorching were present. Similarly, injured Vijay Pratap Singh sustained one fire arm abrasion 0.5cm x 0.5cm on the dorsal surface of the left ring finger, 1cm above tip of the finger. Burning and scorching were present. He also sustained one firearm abrasion 0.3cm x 0.3cm on the dorsal surface of the left little finger, 6cm above tip of the finger. Burning and scorching were present. Therefore, all the five injuries of the injured persons could not be caused by a country made pistol of 315 bore, which was alleged used in causing the injuries by the accused-appellant. Therefore, this shows that all the three injured persons sustained injuries of twelve bore at any place and the same had been shifted upon the appellant for causing the said injuries. Therefore, there is direct medical conflict in this case.
11. It is also worthwhile to mention here that burning and scorching were found in the injuries of all the three injured persons. This shows that the firing was made from a very close range. According to the statement of P.W. 6 S.I. Algoo Singh, the Investigating Officer and site plant Ext. Ka-4, the firing was made from a distance of twenty steps. Therefore, the injuries could not be caused from a long distance. According to the site plant Ext. Ka-4, several houses were situated nearby the house of the appellant. All the Kargujari were allegedly made up to 6.55 A.M. However,, no any public person made the witness regarding the recovery of weapon and cartridges. It is also worthwhile to mention here that when the Mukhbir had given the information at the concerned police station even thereafter none had tried to fetch the public witness. Simply, it has been stated that "Public Ka Koi Aadami Nahi Mila." It has not been specifically mentioned that from where they had tried to take the public witness. Therefore, in absence of any public witness, the whole prosecution story had become suspicious as only the police personnels have been examined in this case. It is also worthwhile to mention here that it has come in the testimonies of the facts witnesses that the firing was also made upon the house of appellant when he was making the firing from his house but no any mark of firing was found on the wall of the house of appellant or at the wall of any neighbourer. This also shows that the versions of firing made by the police personnels are false. According to the evidence of P.W. 2 H.C. Vijay Pratap , he sustained two injuries in the hands. However, he prepared the recovery of Fard while several other police officials were available. This also creates doubt regarding the preparing of Fard Baramdagi at the place of incident.
12. Accused-appellant was not having any criminal history,as argued on his behalf and prosecution witnesses had called him by name. This shows that the appellant was known to them prior to the alleged incident. Some happening might have been taken place with the injured persons. They caused injuries upon the appellant and for saving his skin, he was implicated in this case otherwise the remand magistrate could not have passed an order for the medical examination of the injury of the appellant and for registration of the case against the police personnels. However, the trial Court has wrongly believed the testimonies of the police witnesses, and as such, the prosecution story was liable to be deemed suspicious. In such circumstances, the appellant cannot be convicted for the charges levelled against him as the factum of firing, is suspicious. In such circumstances, the recovery of weapon from the possession of the appellant is also liable to be suspicious.
13. In the result the appeal succeeds and is hereby allowed. The conviction of appellant Parmeshwar Deen is set aside and he is acquitted from the charges levelled against him. He is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharges.