Brief Facts
- That the present case arose from an incident alleged to have occurred in the night of 09.01.1990 and 10.01.1990, when the complainant claimed that while he and his family were sleeping in their house, the appellant Ugma, along with three others, arrived at around midnight in a jeep, whereupon Ugma allegedly fired a gunshot at him. It was stated that Amarchand narrowly escaped injury by bending down, causing the pellets to strike the wall of the house instead, after which all the accused fled from the spot.
- Subsequently an FIR was lodged, and upon investigation, four persons were charge-sheeted for the offence under Section 307 IPC. During trial, the prosecution examined six witnesses and relied primarily on the testimony of the complainant and the investigating officer.
- The trial court, acquitted the three co-accused of the charge under Section 307 read with Section 34 IPC, convicted the appellant alone and sentenced him to five years rigorous imprisonment.
- Hence present Appeal.
Issues
- Whether the failure to establish the link with the firearm and pellets can be fatal to prosecution’s case?
- Whether failure to recover the gun and seek the report of the ballistic expert can be ground to acquit the Appellant, specifically when no injury has been caused to the victim?
Held
- High Court acquitted that the Appellant by noting the victim has not suffered any injury and even the gun was not recovered. The Court made the following observations:
- Admittedly, the victim sustained no injuries as he explained that seeing the appellant firing upon him, he suddenly bent down and thus escaped from sustaining injuries. It is the case of the prosecution that the pellets hit the wall spreading over the length of more than 70 feet. These circumstances clearly show that the marks noticed by the Investigation Officer could not have been from the gun fire. Interestingly, neither the gun was recovered from the appellant nor were the pellets recovered from the spot sent to the forensic or ballistic expert.
- The crime scene was not photographed; the photographs of the crime scene and the pellets taken from the spot were not sent to the FSL for the report of a ballistic expert to ascertain whether the marks appearing on the wall were from the recovered pellets. In the absence of an expert report that the pellets allegedly found at the spot and sent to the FSL were fired at a time proximate to when they were collected, it cannot be said with utmost certainty that on the day of the incident these pellets came from the gun allegedly wielded by the appellant with which he opened fire. There should be a nexus between the firearm and the pellets which has not been established in this case. In the absence of a specific ballistic report and non-seizure of the gun from the appellant, it would be highly unsafe to convict the appellant for having an arm and opening gun fire upon PW-1 Amarchand, particularly when he sustained no injuries.
Relevant Para No.
- 6.2