PRASHANT @ PINTA YADAVversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 CRIMINAL APPEAL No. - 430 of 2020

Prashant @ Pinta Yadav
                                                           .....Appellant(s)
                                  Versus
State of U.P.
                                                         .....Respondent(s)

Counsel for Appellant(s)                   :   Ram Ashish Pandey
Counsel for Respondent(s)                  :   G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. This appeal has been filed by the appellant against the judgment and
order dated 11.12.2019 passed by learned Additional Session Judge,
Court No.8, Etawah, in Session Trial No.137 of 2012, arising out of Case
Crime No.324 of 2010, under Sections 307, 504, 506(2) I.P.C. and in
Session Trial No. 138 of 2012, arising out of Case Crime No.325 of 2010,
under Section 25 of Arms Act, Police Station- Basrehar, District- Etawah.
2. Heard Sri Ram Ashish Pandey, learned counsel for the appellant and
Sri Rahul Asthana, learned A.G.A. for the State.
3. The prosecution case, as per the first information report lodged by the
complainant, Ram Khiladi, is that on 12.12.2010 at about 8.00 p.m., while
he was sitting with other villagers namely, Pradeep Kumar, Kitab Singh
and Vinod Kumar near his house, the accused along with his other
companion came there and started abusing. Upon objection, he allegedly
fired at the informant with intention to kill him but no one sustained any
injury of firearm. It is further alleged that the informant and others
apprehended the accused Prashant and snatched his pistol. Thereafter co-
accused Ankesh allegedly threatened them to release Prashant, failing
which they would be killed and also fired another shot, creating panic.
Taking advantage of the situation, the accused escaped. The informant
took the snatched country-made pistol to the police station and lodged an
FIR.
4. After investigation of the case, charge-sheet was submitted for offences
under Section 307 read with Section 34, 504, 506 (2) I.P.C. and Section
25 of Arms Act.
5. Charges were framed against the accused. He pleaded not guilty and
claimed trial.
6. In order to prove its case beyond reasonable doubt, the prosecution has
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examined, P.W.-1 the complainant Ram Khiladi, P.W.-2 Pradeep, P.W.-3
Vinod Kumar, P.W.-4 Kitab Singh and P.W.-5 Constable Kaushal Kumar.
7. Documentary evidences written report Ext. Ka-1, recovery memo Ext.
Ka-2, FIR Ext. Ka-3, Carbon Copy G.D. Ext. Ka-4, Site Plan Ext. Ka-5,
Charge-sheet for offence under Section 307, 504, 506 Ext. Ka-6, charge-
sheet under Section 25 Arms Act Ext. Ka-7, Certified copy of FIR Ext.
Ka-8, Certified copy of G.D. entries Ext. Ka-9 and prosecution sanction
Ext. Ka-10 are on record.
8. The complainant P.W.-1 Ram Khiladi in his examination-in-chief,
supported the prosecution version, however, during cross-examination, he
turned hostile and stated that the accused present in Court were not the
persons who fired on the spot and he could not identify the miscreants due
to darkness.
9. P.W.-2 Pradeep stated that he did not witness the incident because he
was locked inside the room by his aunt. P.W.-3 Vinod Kumar stated that
he was not present at the time of occurrence. He came to know about the
incident only on next day.
10. P.W.-4 Kitab Singh also not supported the prosecution version and
stated that no such incident of firing was known to him. No injury was
caused to everyone. He was unaware whether any firing actually took
place.
11. The P.W.-5 constable Kaushal Kumar had proved the chik report and
copy of G.D. entry but admitted that the weapon was produced by the
informant himself. It was not recovered from the possession of the
accused. The Investigating Officer could not be examined due to his
death. Documents such as the site plan and charge-sheet were formally
proved but their contents remained unproved.
12. The learned trial court, after considering the oral and documentary
evidence, returned the finding of guilt and convicted the appellant for
offence under Section 307, 504, 506 I.P.C. and section 25 Arms Act and
sentenced accordingly.
13. Aggrieved with the judgment of conviction and sentence, this appeal
has been preferred.
14. It is submitted that the judgment and order dated 11.12.2019 passed
by the trial court is arbitrary, perverse and bad in the eyes of law. The
learned court below has committed manifest error in appreciation of law
and facts. The order of conviction passed by the learned trial court is
absolutely illegal, unjust, improper and arbitrary in nature and totally
against the weight of evidence on record. Therefore, it is prayed that
appeal may be allowed and the impugned judgment and order dated
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11.12.2019 be set aside.
15. Learned A.G.A. supports the judgment of conviction and sentence.
16. It is highly significant that no pellets, empty cartridges or marks of
firing were recovered from the spot. No person sustained any injury
despite alleged close range firing. No independent witness has
corroborated the factum of firing even prosecution witnesses. P.W.-2 to
P.W.-4 had not supported the prosecution version regarding firing on the
spot. The allegation of firing rests solely on the unreliable and hostile
testimony of P.W.-1 Ram Khiladi. The alleged weapon was not connected
with the incident.
17. A crucial lapse in the prosecution case is that the alleged weapon was
not sent for forensic examination. No ballistic report has been brought on
record. No expert report has been adduced to establish whether the
weapon was in working condition, whether it had been recently fired, or
whether any cartridges allegedly found was connected to the weapon. In
cases involving use of firearm, ballistic examination assumes great
significance, particularly when no injury is caused. No pellets, cartridges
or marks of firing are recovered from the spot. The absence of forensic
evidence creates serious doubt as to whether the alleged weapon was
capable of firing at all and whether any firing actually took place and
whether the weapon produced before the Court was connected with the
alleged accused.
18. It is also to be considered whether the essential ingredients of Section
307 I.P.C. namely the intention or knowledge to cause death coupled with
an overt act towards its commission, stand prove beyond reasonable
doubt.
19. It is well settled that for attracting Section 307 I.P.C., the prosecution
must establish specific intention or knowledge to cause death and an overt
act done towards commission of murder. The act must be of such a nature
that if death has ensued, the offence would have amounted to murder.
20. The Hon’ble Apex Court in Sarju Prasad Vs. State of Bihar, AIR
1965 SC 843 has held that mere act of firing does not automatically
attract Section 307 I.P.C. unless the intention to cause death is clearly
established. Similarly, in State of M.P. Vs. Saleem @ Chamaru and
Anr, (2005) 5 SCC 554, it was observed that the nature of injury, the
weapon used and the surrounding circumstances are crucial in
determining the intention.
21. In present case, no person had sustained any injury whosoever the
alleged firing did not result even in a superficial hurt. There is no other
and reliable evidence to establish intention to kill.
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22. From the overall evidence, it emerges that the alleged act even if
accepted at face value does not disclose a clear intention to commit
murder. At best, it may indicate a general act of threat or intimidation but
not an attempt to murder. The mens rea required under Section 307 I.P.C.
remains unestablished. The evidence on record does not inspire
confidence to sustain conviction under Section 307 I.P.C. The conviction
recorded by the trial court is unsustainable in law.
23. So far as the conviction for offence under Section 504 I.P.C. is
concerned, the informant alleged that the accused abused him by using
filthy language and thereby committed an offence under Section 504
I.P.C., however, it is noteworthy that none of the witness disclosed the
exact words allegedly used as an abusive language. The evidence remains
general and omnibus in nature without specifying the nature of insult.
24. Section 504 reads as under :-
     "Intentional insult with intent to provoke breach of the peace
     Whoever intentionally insults, and thereby gives provocation to
     any person, intending or knowing it to be likely that such
     provocation will cause him to break the public peace, or to
     commit any other offence, shall be punished with imprisonment
     of either description for a term which may extend to two years,
     or with fine, or with both."
25. To sustain a conviction under Section 504 I.P.C. the prosecution must
establish :-
(i) The insult must be intentional and of such a nature as to provoke a
person; and
(ii) The accused must intended or knew that such provocation could cause
the person to break the public peace or commit an offence.
26. The Hon’ble Apex Court consistently held that mere vague allegation
of abuse is insufficient. The prosecution must prove specific words used
and the intent to provoke breach of peace.
27. In the present case, the prosecution has made general allegation of
abuse. No witness specified the actual words allegedly uttered by the
accused. There is no evidence to show that the alleged abuse was of such
a nature as to provoke breach of peace. The prosecution has failed to
establish the essential ingredient of Section 504 I.P.C., the conviction
recorded by the trial court is based on vague and insufficient evidence
which is not sustainable in law.
28. Section 506 I.P.C. reads as under :-
     " Punishment for criminal intimidation
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     Whoever commits the offence of criminal intimidation shall be
     punished with imprisonment of either description for a term
     which may extend to two years, or with fine, or with both;
     If threat be to cause death or grievous hurt, etc – and if the
     threat be to cause death or grievous hurt, or to cause the
     destruction of any property by fire, or to cause an offence
     punishable with death or imprisonment for life, of with
     imprisonment for a term which may extend to seven years, or to
     impute unchastity to a woman, shall be punished with
     imprisonment of either description for a term which may
     extend to seven years, or with fine, or with both.”
29. According to the prosecution the accused Prashant already fired a shot
and when he was apprehended on the spot by the informant and others co-
accused Ankesh allegedly extended a threat stating that the accused be
released or else they would be killed. It is further alleged that due to such
threat the accused persons managed to escape from the spot. Most of the
prosecution witnesses did not support the said version. They were
declared hostile. The witnesses examined by the prosecution did not
corroborate the allegations of criminal intimidation. There is no consistent
or reliable evidence proving the alleged threat. Moreover the role
extending threat has been attributed to co-accused Ankesh.
30. To constitute an offence under Section 506 I.P.C., there must be a
threat of causing injury to person, reputation or property. The threat must
be given with intent to cause alarm to the victim and must be of such as to
compel the victim to do an illegal act or omit to do an act which he is
legally entitled to do.
31. Mere expression of words without intention to cause a harm does not
constitute an offence under Section 506 I.P.C. The prosecution must
prove that the threat was real, specific and intended to cause alarm.
32. Upon careful scrutiny of the evidence this Court finds the allegation
of threat is supportive only by the informant Ram Khiladi in his
examination in chief and not corroborated with other witnesses. The
alleged words of threat are not specifically proved nor consistently
narrated.
33. In criminal jurisprudence conviction cannot be sustained on
uncorroborated and unreliable testimony, particularly when material
witnesses have not supported the prosecution case.
34. The evidence on record fails to establish the nature of threat, the
intention to cause alarm, the impact of such threat, the essential ingredient
of Section 506 I.P.C. remains unproved. The conviction recorded by the
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trial court for offence under Section 506 I.P.C. is unsustainable in law.
35. To sustain a conviction for offence under Section 25 Arms Act, 1959,
the prosecution must establish conscious and exclusive possession of the
firearm by the accused. Recovery of weapon from possession of accused
in lawful manner, proper seizure, sealing and chain of custody,
compliance with procedural safeguards and credible evidence connecting
the weapon with the accused.
36. It is well settled that mere production of a weapon is not sufficient
unless the prosecution proves that it was recovered from the possession of
the accused and that such possession was conscious and exclusive. In the
present case, the prosecution story itself discloses that the alleged
countrymade pistol was not recovered by the police from the possession
of the accused. It was allegedly snatched by the informant at the place of
occurrence. The same was thereafter taken by the informant to the police
station and handed over.
37. The formal witnesses P.W.-5 constable Kaushal Kumar has clearly
admitted that the weapon was produced by the complainant. He is
unaware whether the weapon was actually snatched from the accused or
brought independently.
38. The most crucial requirement for offence under Section 25 of Arms
Act, recovery from the accused is completely missing. No independent
witness supports the alleged snatching. No independent witness has
deposed that the weapon was recovered from the accused. The alleged
recovery is thus doubtful and untrustworthy. The prosecution has failed to
establish when and how the weapon was sealed, whether it remained
intact, till production in Court, whether the weapon was sent for forensic
examination. The absence of credible chain of custody creates serious
doubt about the identity and integrity of the weapon.
39. An unbroken chain of custody established that the same weapon was
produced before the Court in the present case, the prosecution version
itself indicates that the recovery was not properly put to the informant
during trial. The informant was not specifically asked to identify the
weapon as the same which was allegedly snatched from the accused. It is
a settled principle of criminal jurisprudence that a material object
allegedly recovered must be proved through proper identification by the
witnesses who had recovered or handed over.
40. In the present case, the informant has not confirmed the identification
of the weapon in the Court rather his cross-examination indicates
uncertainty and lack of recognition. Thus the very foundation of the
recovery becomes doubtful as the material exhibit, the country made
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                                    pistol remains unconnected with the alleged accused. In the light of the
                                    above discussion the court finds that it would be unsafe to sustain
                                    conviction under Section 25 Arms Act. Accordingly, the conviction under
                                    Section 25 Arms Act is not sustainable in law and liable to be set aside.
                                    41. Accordingly, the appeal is allowed. The order of conviction and
                                    sentence dated 11.12.2019 is set aside.
                                    42. The appellant is acquitted for all the charges for offence under Section
                                    307, 504, 506(2) I.P.C. and Section 25 of Arms Act.
                                    43. The appellant is in jail. He shall be released forthwith, if not required
                                    in any other case.
                                    44. A copy of this order be transmitted to learned trial court, Etawah as
                                    well as Jail Superintendent, Etawah for immediate compliance.
                                    April 21, 2026
                                    P. Pandey
                                                                              (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad