RIZWAN AND OTHERSversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 606 of 2003

Rizwan And Others
                                                             .....Appellant(s)
                                   Versus
State of U.P.
                                                           .....Respondent(s)

Counsel for Appellant(s)        : Neeraj Singh, Pankaj Kumar Tyagi, V.
                                  Singh, Vinay Singh
Counsel for Respondent(s)       : Govt. Advocate

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

1. The present criminal appeal has been preferred against the judgment and
order dated 18.01.2003 passed by the Additional Sessions Judge, Court No.
10, Muzaffarnagar, in Session Trial No. 407 of 2001 (State vs. Rizwan and
another), whereby the appellants were convicted under Section 25 of the
Arms Act and sentenced to undergo two years' rigorous imprisonment along
with a fine of Rs. 5,000/- each. They were also convicted under Section 307
I.P.C. Further, appellant no. 1 (Rizwan) was sentenced to one year's rigorous
imprisonment along with a fine of Rs. 2,000/- under Section 25 of the Arms
Act. In default of payment of fine, Rizwan (appellant no. 1) was to undergo
three months' rigorous imprisonment and Esha (appellant no. 2) one month's
rigorous imprisonment. All sentences awarded to appellant no. 1 were
directed to run concurrently.

2. During the pendency of this appeal, the present appeal stands abated qua
appellant no.2 namely Isha @ China and now the present appeal only
survives with respect to the appellant no.1 namely Rizwan.

3. The prosecution case, in brief, is that on 21.01.1999, S.H.O. K.K. Gautam,
along with S.I. B.L. Shah, Constable Sunil Kumar, and Constable Naahar
Singh, was on patrolling duty in Government Jeep No. UHQ 8188, driven by
Karan Singh, in search of a wanted criminal. In the early morning of
22.01.1999, when they reached near the canal between the villages Saidpur
and Alawalpur, two persons were seen standing there. On suspicion, the
police party stopped the vehicle and challenged them. One of the miscreants
exhorted the other to kill the police party, whereupon one of them fired a
                                                          CRLA No. 606 of 2003
                                2


shot with the intention to kill. However, the police personnel managed to
escape unhurt.

4. Thereafter, one of the accused, namely Rizwan, was apprehended at a
distance of about 15 to 20 steps from the place of occurrence, while the other
accused managed to flee, taking advantage of the darkness. From the
possession of Rizwan, a country-made pistol (.315 bore) with one empty
cartridge stuck in the barrel and one live cartridge of .315 bore from his
pocket were recovered.

5. The recovered weapon was seized and sealed on the spot, and a recovery
memo was prepared. The accused and the recovered articles were then taken
to the concerned police station.

6. A case was registered at the police station, and after investigation,
prosecution sanction was obtained from the District Magistrate,
Muzaffarnagar. A charge-sheet under Section 307 I.P.C. was submitted
against the accused persons, and under Section 25 of the Arms Act against
accused Rizwan. During the course of investigation, accused Esha @ Vincha
was also arrested under Section 307 read with Section 34 I.P.C.

7. Charges were framed against the accused persons, which were read over
to them. They pleaded not guilty and claimed trial.

8. The prosecution examined four witnesses in support of its case, namely
P.W.-1 Constable Naahar Singh, P.W.-2 S.I. K.K. Gautam, P.W.-3 Head
Constable Jagat Singh, and P.W.-4 Ram Jeet Singh. The documentary
evidence on record includes Rawanagi G.D. (Ext. Ka-2), Chick FIR (Ext.
Ka-3), site plan (Ext. Ka-4), charge-sheet under Section 307 I.P.C. (Ext. Ka-
5), prosecution sanction (Ext. Ka-6), and charge-sheet under Section 25 of
the Arms Act (Ext. Ka-7). The material exhibits include the recovered
country-made pistol (Material Ext. 1), empty cartridge (Material Ext. 2), live
cartridge (Material Ext. 3), and sealed cover (Material Ext. 4), all of which
were duly proved by P.W.-1 Naahar Singh and P.W.-2 S.I. K.K. Gautam,
who also proved the recovery memo (Ext. Ka-1).

9. The trial court, on the basis of the oral and documentary evidence on
record, convicted the accused persons under Section 307 I.P.C. and accused
Rizwan under Section 25 of the Arms Act, and sentenced them accordingly.

10. Learned counsel for the appellant no.1 submitted that the prosecution has
                                                            CRLA No. 606 of 2003
                                 3


failed to prove its case beyond reasonable doubt against the appellants;
therefore, the conviction and sentence awarded to them are illegal and liable
to be set aside. It is contended that there is no independent witness to support
the prosecution case, and the conviction of the appellants is based solely on
the testimony of police personnel. It is further submitted that there was
neither any actual encounter nor did any person from either side sustain any
injury. There is no expert opinion to establish that the empty cartridge was
fired from the recovered country-made pistol. Moreover, the alleged
recovered pistol was not in working condition, as admitted by P.W.-1 in his
cross-examination before the Court. The prosecution sanction has also not
been duly proved.

12. It is further argued that there are material contradictions in the statements
of witnesses on crucial aspects such as recovery and the place of occurrence;
hence, the conviction of the appellants is illegal and contrary to the evidence
on record.

13. Learned A.G.A., on the other hand, supported the judgment of
conviction and sentence.

14. The principal question before this Court is whether the prosecution has
been able to prove its case beyond reasonable doubt, namely, that the
accused persons fired upon the police party with the intention to cause death,
and whether the recovery of the alleged weapon from accused Rizwan is
reliable and duly proved.

15. Upon careful scrutiny of the entire evidence on record, this Court finds
serious infirmities in the prosecution case.

16. The very genesis of the prosecution case, namely the alleged firing upon
the police party, appears highly doubtful for the following reasons:

(a) No injury was caused to any member of the police party;

(b) No damage was caused either to the government jeep or to any
surrounding object;

(c) No material evidence, such as pellet marks or any other signs of firing at
the spot, has been brought on record.

17. In a case alleging firing from close range with the intention to kill, the
                                                          CRLA No. 606 of 2003
                                4


absence of any injury or damage creates serious doubt in the prosecution
story. The Hon'ble Supreme Court has consistently held that where the basic
prosecution version becomes doubtful, the benefit must go to the accused.

18. It is admitted that the accused Rizwan was apprehended from a distance
of about 15 to 20 steps while fleeing. In such a situation, if the accused had
in fact already fired and was in possession of a firearm, there was sufficient
opportunity for him to fire again while escaping. However, no such attempt
was made. It is also significant that the police party, consisting of four to
five armed personnel, did not fire even a single shot in self-defence. This
unnatural conduct renders the prosecution version doubtful.

19. There is no material on record to indicate any reason why the accused
persons, who were merely standing on the road, would suddenly attempt to
commit the murder of police personnel without any provocation. The
absence of motive, though not always fatal, assumes importance when the
prosecution case is otherwise doubtful.

20. P.W.-1 Naahar Singh, in his cross-examination, stated that the weapon
produced before the Court was not in working condition. It is further
admitted that the weapon was not sent to the forensic laboratory for ballistic
examination. There are material contradictions between the statements of
P.W.-1 Naahar Singh and P.W.-2 S.I. K.K. Gautam regarding the working
condition of the recovered firearm.

21. It is a settled principle of criminal jurisprudence that if two views are
possible, the one favourable to the accused must be adopted. The trial court,
in the present case, has failed to properly appreciate the evidence and has
recorded findings which are not sustainable in the eyes of law.

22. Accordingly, the prosecution has failed to prove its case beyond
reasonable doubt against the appellants. The conviction recorded by the trial
court and the sentence imposed upon the appellants are liable to be set aside.

23 The appeal is allowed.

24. The impugned judgment and order dated 18.01.2003 is set aside.

25. The appellant no.1 are acquitted of the charges.

26. Since the appellant no.1 is on bail, his bail bonds are cancelled and
                                                                                              CRLA No. 606 of 2003
                                                                    5


                                    sureties are discharged.

                                    27. A copy of this judgment along with the trial court record, if received, be
                                    sent back forthwith to the court concerned for necessary compliance.

                                    February 12, 2026
                                    Pravesh Mishra
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad