Whether Gun able to fire not tested – failed to establish offence under Arms Act – SC

Apex court observed that to prove an offence under Section 307 of IPC ,it is apparent that whoever does any act, with intention or knowledge, which may cause death and in furtherance   to the said intention and knowledge, he was doing an act towards it. However, it is required to be seen by the evidence brought on record by the prosecution whether the ingredients to prove, the case of prosecution beyond reasonable doubt.

Facts - Police got information - absconding accused  Rajesh Shukla hiding  with his associate members in a house - police parties surrounded the house of Jhallu Kachhi – accused Rajesh opened fire – after sometime accused Rajesh along with appellant surrendered - one 315 bore rifle along with 19 live cartridges and 5 empty cartridges recovered from Rajesh - one 12 bore double barrel gun along with 20 live cartridges and 7 empty cartridges recovered from appellant – Appellant defence - he surrendered in P.S. Sarwai - police personnel prepared  false case sitting in the police station -  trial court convicted for attempted to murder and Arms Act – Upheld by High Court – Aggrieved Appellant approached Supreme Court.

Appellant contended on the ground that there was no apprehension of abscondment. From the statement of prosecution witnesses, deceased co­accused was allegedly said to be hiding himself in the house of Jhallu Kachhi and not the appellant. The prosecution witnesses have not named and seen the appellant firing on them, having intention and knowledge to commit the murder.

Further contended that FSL report clearly indicates that there was disparity to match for the firing pin impression.  Therefore, those five cartridges were not fired through the left barrel of 12 bore gun.  Similarly, the right barrel of 12 bore gun had not been used in firing because it was cut and short by which weapon could not be matched with the cartridges. The prosecution has failed to prove the intention and knowledge to commit an act which may amounting to commission of an offence attempt to murder. 

Supreme court while go through record found that H.C. Akbar Singh Gaur (PW5) in cross examination clearly stated that the said firing was towards the hill area and not towards the police party. None of the prosecution witnesses have seen the appellant firing on police party, with intention or knowledge to commit an offence, proving his guilt.

Supreme court held that prosecution failed to prove the intention and knowledge to commit an act by them towards the police party has not been proved beyond reasonable doubt, it is also on record that all the proceedings including the arrest, seizure  have been prepared at the police station and not on the spot. 

Three independent witnesses also not supported the prosecution.

It is to further observe that as per FSL Report right barrel of 12 bore gun fire could not be done and the empty cartridges, which were received, have not been fired from the left barrel.  Therefore, the use of 12 bore gun which was seized from the appellant is not proved along with live and empty cartridges. As the use of the gun itself is not established by the FSL report, therefore, the conviction under Section 27 Arms Act also is not justified.  Considering all these aspects, Apex Court held, the ingredients of Section 307/34 IPC and Section 27 of the Arms Act have not been proved by the prosecution beyond reasonable doubt, proving the guilt of the accused/appellant. Conviction Set aside.

D.D: - FEBRUARY 1, 2022.

VASUDEV Versus STATE of M.P.