- (1.) The present appeal has been preferred against the judgment dated 10.12.2001 passed by the then learned Additional Sessions Judge, Gugraon, vide which the respondent no.1 Farman along with his co-accused Abdul Majid @ Mhalla and Arshad @ Mohammad Hasad have been acquitted.
(2.) The brief facts of the prosecution case are that injured complainant Aas Mohammad is a resident of village Assai Sika, P.S. Nagina. His elder brother Bashir was married to PW-11 Noor Nisha. Bashir died about five years prior to the occurrence leaving behind his widow Noor Nisha and a minor daughter. After his death, Noor Nisha contracted second marriage with complainant Aas Mohammad about three years prior to the occurrence. Smt. Batka is his younger sister of Noor Nisha and is married to respondent-accused Farman resident of village Salamba. Maksoodan is elder sister of Noor Nisha and is married to Jamil resident of Salamba. On 26.06.1997, minor daughter of Bashir was suffering from Typhoid. Therefore, complainant and his wife Noor Nisha took her to village Bhondsi for treatment. It was rainy season and heavy ran was likely to fall on that day. Therefore, they stayed in the house of Jamil in village Salamba which fell on the way to Bhondsi from village Asai Sika. At about 8.00.p.m, the complainant was sleeping on a cot. PW-5 Jamil, his father Ishak and Noor Nisha were sitting there. In the meantime accused Farman armed with a country made pistol and accompanied by co-accused Bhulla @ Abdul Majid and Arshad came there. Accused Farman fired a shot at the complainant, which hit on his right thigh. Thereafter, all the three accused fled away from the spot. The motive for this occurrence was stated that accused Farman was suspecting that complainant had illicit relations with his wife Smt. Batka. Injured complainant Aas Mohammad was shifted to CHC Nuh for treatment. Where, he was medico legally examined by PW-12 Dr.J.P.Chauhan, the then Medical Officer and prepared the Medico Legal Report Ex.PE. He sent the Ruqa Ex.PE/1 to the SHO Police Station Nuh. On receiving this information ASI Dharambir Singh went to the hospital. He sought the opinion of the doctor about the fitness of the injured to make statement, who was declared fit. ASI Dharambir Singh recorded the statement of complainant Aas Mohammad Ex.PA. On the basis of which the formal FIR Ex.PA/1 was registered and investigation was started. Accusedrespondent Farman was arrested on 03.07.1997. On the basis of his disclosure statement Ex.PW3/A a country made 12 bore pistol along with an empty cartridge of the same bore was recovered from his house, which were kept in the sealed parcel and a separate case under Section 25 of the Arms Act was got registered against him. The pistol and cartridge were sent to Director FSL, Madhuban for examination. After completion of the necessary formalities of investigation, the report under Section 173 of Code of Criminal Procedure was presented against the respondent.
(3.) Initially respondent Farman was charge sheeted for the offences under Section 452 and 307 of Indian Penal Code. However, during trial on the basis of an application under Section 319 of Code of Criminal Procedure, 1973, co-accused Bhulla @ Abdul Majid and Arshad were also summoned. On their appearance a fresh charge sheet under Section 452 and 307 read with Section 34 of Indian Penal Code was framed against all the accused to which the accused pleaded not guilty and claimed trial.;