- (1.) CHALLENGE in this appeal is to the order dated 13.8.1987 passed by Sri K. N. Singh, the then Special Judge, Mathura in S. T. no. 321 of 1981, whereby both the aforesaid accused -appellants were acquitted for the offence punishable u/s 307/34 IPC. However each had been convicted u/s 25 Arms Act and accused Suresh had further been convicted u/s 4/25 Arms Act. Accused Hodal was sentenced to undergo R.I. for two years, while Suresh was sentenced to six months' R.I. each u/s 25 and 4/25 Arms and the sentences were directed run concurrently.
(2.) BRIEFLY stated that prosecution story as contained in the FIR and the evidence was that on 5.1.1985 S. I. Sant Lal Tyagi of P. S. Surir District Mathura while on patrol duty along with four police constables at about 10:00 p. m. suspected presence of criminals after seeing bidi light near Nasiti bridge and on challenge, the miscreants in order to kill them fired shot but they narrowly escaped. The police also fired two shots in self defence and thereafter both the appellants were apprehended at the spot, however, their two other associates managed their escape good. On search a country made pistol and four cartridges including one empty cartridge were recovered from the possession of accused Hodal, while a katar and two live cartridges 12 bore were recovered from the person of accused Suresh. Recovery memo was prepared at the spot and the articles were sealed separately. The accused along with the arm and ammunition recovered from their possession were brought to police station where on the basis of recovery memo cases u/s 307/34 IPC and separate cases under Arms Act were registered against both the accused at about 23:50 hrs., investigation whereof was entrusted to SI Hari Shanker Sharma, who had submitted charge -sheets in the case against the accused -appellants.
(3.) AFTER committal of the case to the Court of Session charges for the offences punishable u/s 307/34 IPC and 25 Arms Act and 4/25 Arms Act were framed by the learned Special Judge against the accused -appellants separately, who abjured their guilt and claimed trial. In order to prove its case the prosecution had examined Constable Charan Singh PW -1 and Constable Prem Pal Singh PW -2. The learned counsel for the defence has dispensed with the formal proof of the police documents prepared during investigation as also the sanction accorded by the District Magistrate for prosecution of the accused -appellants under Arms Act.;