Allahabad High Court
Sohan vs State Of U.P. on 11 January, 2023
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 05.01.2023 Delivered on: 11.01.2023 Court No. - 16 Case :- CRIMINAL APPEAL No. - 144 of 2005 Appellant :- Sohan Respondent :- State of U.P. Counsel for Appellant :- P.K.Tripathi,Pradeep Kumar Tripathi Counsel for Respondent :- Govt.Advocate Hon'ble Mohd. Aslam,J.
1. Heard Sri Pradeep Kumar Tripathi, learned counsel for the appellant as well as Sri Manoj Kumar Sahu, learned A.G.A. for the State and perused the record.
2. This criminal appeal under Section 374(2) Cr.P.C. is filed against the impugned judgment and order dated 22.12.2004 passed by learned Additional Sessions Judge (F.T.C. No. 4), Sitapur in Sessions Trial No. 333 of 1999 (State vs. Sohan and Others), arising out of Case Crime No. 254 of 1997, under Section 25 (1-B) Arms Act, Police Station Pisawan, District Sitapur, convicting and sentencing the appellant to undergo rigorous imprisonment for one year and fine of Rs.1000/-, in default three months further simple imprisonment.
3. In brief, the prosecution case is that on 14.12.1997 S.O. Mukhram Yadav along with other police personnel were busy in checking and search of wanted accused and when they reached at Kutub Nagar where Constable Awadhesh Pandey and Ved Prakash met them, and thereafter, they proceeded towards Kutub Nagar, Wazir Nagar Road at power house where they received information from an informer that some accused armed with weapons are illegally cutting the government trees of Sisam situated beside the Sharda Canal near the field of Ganga Ram, resident of Wazir Nagar and are about to leave the place after loading it on a DCM. On the information of the informer, the informant along with other police personnel and informer reached near the filed of Ganga Ram at about 08:30 p.m. and saw a DCM was parked there. There were 3-4 miscreants sitting in the DCM armed with weapons, 2-3 miscreants were closing the Dala of the DCM. On the pointing out of the informer, the informant and other police personnel challenged the miscreants, thereupon, the accused persons starting firing upon the police party with intention to kill, but any how they saved themselves. They arrested five miscreants on the spot and 3-4 miscreants were fled from there. From the search of arrested accused Sohan, a country made gun of 12 bore, three cartridges of 12 bore and a pistol of 9 mm along with 5 cartridges and magazine were recovered. The recovered country made gun, pistol of 9 mm, cartridges of 12 bore, cartridges of 9 mm along with magazine were sealed at the place occurrence and recovery memo (Ext.Ka.1) was prepared in presence of companion police personnel, copy of which was given to the accused-appellant and other accused. On the basis of recovery memo, F.I.R. was registered in (1) Case Crime No. 251 of 1997, under Sections 147, 148, 149, 307, 379, 411 I.P.C., (2) Case Crime No. 252 of 1997, under Sections 4/10 The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, (3) Case Crime No. 253 of 1997, under Sections 25/27 (1-B) Arms Act against accused-appellant Sohan, (4) Case Crime No. 254 of 1997, under Sections 25/27 Arms Act against accused Ram Prakash and (5) Case Crime No. 255 of 1997, under Sections 25(1-B)/27 Arms Act against accused Gajraj Pasi. The Chek Report (Ext.Ka.2) was scribed on the basis of recovery memo on 14.12.1997 at 12:50 hours and case was registered by making entry in GD Rapat No. 15 at 12:50 hours on 14.12.1997 at Police Station Pisawan, Sitapur (Ext.Ka.3). The investigation of aforesaid case crimes was conducted by Sub-Inspector Gauri Shankar Singh and Circle Officer Mehak Singh. SI Gauri Shankar Singh recorded the statement of the informant and other companion police personnel. He inspected the place of occurrence and prepared the site-plan (Ext.Ka.12). He also took the Bilty Book (Ext.Ka.13) in possession on 22.12.1997. He obtained the sanction of prosecution against the accused-appellant Sohan Pasi (Ext.Ka.14), accused Ram Prakash Yadav (Ext.Ka.15) and accused Gajraj Pasi (Ext.Ka.16) on 11.2.1998. The accused-appellant Sohan Pasi was medically examined on 14.12.1997 at 02:15 p.m. and following injuries were found on his body:-
(i) lacerated wound 1 cm x 0.5 cm x 0.7 cm of right leg, 18 cm below from right knee joint, margins irregular & everted, blackening present.
(ii) lacerated wound 2 cm x 0.5 cm x 0.7 x muscle deep on anterio medial aspect of right leg, 1.5 cm below from injury no.1. Margins irregular, fresh bleeding present.
(iii) traumatic swelling 0.6 cm x 4 cm present in middle 1/3 part of right leg around injury nos. 1 & 2.
Dr. has opined that duration of the injuries were fresh and caused by blunt object. Dr. A.K. Jain has prepared the injury report (Ext.Ka.17) of accused-appellant at the time of his medical examination.
4. On the basis of evidence collected during investigation, charge-sheet was submitted against the accused-appellant Sohan and other accused Ram Prakash, Gajraj, Pahalwan Singh and Haglu under Sections 147, 148, 149, 307, 379, 411 I.P.C. (Ext.Ka.5), under Sections 147, 148, 149, 307, 379, 411 I.P.C. against accused Shankar (Ext.Ka.6), under Section 4/10 of The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act against accused Sohan, Ram Prakash, Gajraj, Pahalwan and Haglu (Ext.Ka.7), under Section 4/10 of UP The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act against accused Shankar (Ext.Ka.8), under Section 25(1-B) Arms Act against accused Ram Prakash (Ext.Ka.9), under Section 25(1-B) Arms Act against accused-appellant Sohan (Ext.Ka.10) and under Section 25(1-B) Arms Act against accused Gajraj (Ext.Ka.11.). Cognizance of offence was taken by learned Additional Chief Judicial Magistrate-II, Sitapur on 13.02.1998 on all the above mentioned charge-sheets and after complying the provisions of Section 207 Cr.P.C., the case was committed to the court of sessions vide order dated 25.06.1999 of the Chief Judicial Magistrate-I, Sitapur. During pendency of trial, the accused Gajraj has died and the case against him was abated. The charges under Sections 147, 148, 307/149, 379 I.P.C. and Section 4/10 of The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act were framed against accused Sohan, Ram Prakash, Pahalwan, Haglu and Shankar and charge under Section 25(1-B) of Arms Act was also framed against accused Sohan (appellant) and Ram Prakash on 25.04.2003 by the Additional Sessions Judge/F.T.C. No.4, Sitapur. The accused pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution has examined witnesses of the fact PW-1 Constable Siyaram Yadav, PW-2 Constable Awadhesh Kumar, PW-3 Robin Singh, PW-4 Mukhram Yadav (informant) to prove the recovery memo of arms (Ext.Ka.1). The prosecution has also examined Head Moharrir Constable Ravindra Nath Shukla as PW-5 to prove the chek report (Ext.Ka.2) and G.D. registering the case (Ext.Ka.3) and the certificate destroying the original GD (Ext.Ka.4). The prosecution has also examined Sri Mehak Singh, Circle Officer as PW-6 to prove the steps taken in investigation and charge-sheets (Ext.Ka-7 to Ka-11). Prosecution has also examined the first Investigating Officer SI Gauri Shankar Singh to prove the steps taken in investigation, site-plan (Ext.Ka.12), memo of bilty book (Ext.Ka.13) and sanction of prosecution (Ext.Ka-14 to Ka-16). The prosecution has closed its evidence.
6. Statement of the accused persons were recorded under Section 313 Cr.P.C. wherein they denied the prosecution case and submitted that they were arrested from their house and false recovery were planted on them. The accused persons have not examined any witness in defence.
7. Learned trial court after hearing learned counsel for the parties has held that the prosecution has proved its case under Section 25 (1-B) of Arms Act beyond reasonable doubt against the accused Sohan (appellant) and Ram Prakash and held them guilty and sentenced each to undergo rigorous imprisonment for one year with a fine of Rs.1000/- each, in default three months additional simple imprisonment under Section 25 (1-B) Arms Act. The accused Sohan (appellant), Ram Prakash, Pahalwan, Haglu and Shankar were acquitted from the charges of offence punishable under Sections 147, 148, 307/149, 379 I.P.C. and Section 4/10 of The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act giving the benefit of doubt.
8. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the accused-appellant Sohan has preferred this appeal.
9. It is submitted by learned counsel for the appellant that the appellant has served out more than the sentence of one year as awarded by the trial court. It is further submitted that the accused was also detained in jail for the charge of offence punishable under Section 302 I.P.C. in which he has been acquitted by this Court. It is further submitted that the accused-appellant was apprehended from his house and false recovery was planted against him. No independent witness was examined by the prosecution. It is also submitted that trial court has wrongly believed on the testimony of recovery witnesses and the judgment of trial court is liable to be set-aside.
10. Learned A.G.A. has supported the prosecution case and submitted that it is impossible to plant one country made gun of 12 bore, cartridges of 12 bore and one pistol of 9 mm along with cartridges and magazine against the accused-appellant Sohan. It is further submitted that the factum of the recovery was proved by PWs-1, 2 & 4 and the recovered weapons were also produced before the court as Material-Ext-14. The sanction of prosecution (Ext.Ka-14 to Ka-16) against accused was also proved by PW-7 SI Gauri Shankar Singh who has also proved the site-plan (Ext.Ka.12), Bilti Book (Ext.Ka.13). Learned A.G.A. has further submitted that the case against accused-appellant is proved beyond reasonable doubt for offence punishable under Section 25(1-B) Arms Act. It is further submitted that accused Ram Prakash has not preferred any criminal appeal against his conviction and sentence. It is further submitted that order of the trial court is based on evidence available on record which is legal and requires no interference. Therefore, the instant criminal appeal is liable to be dismissed.
11. In this case, State has not preferred any appeal against the impugned judgment and order of acquittal of accused Sohan (appellant), Ram Prakash, Pahalwan, Haglu and Shankar in Sessions Trial No. 333 of 1999 from the charges of offence punishable under Sections 147, 148, 307/149, 379 I.P.C. and Section 4/10 The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act. In the aforesaid sessions trial, only accused Sohan (appellant) and Ram Prakash were convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,000/-, in default three months additional simple imprisonment under Section 25(1-B) Arms Act. The factum of recovery was proved by the informant PW-4 SI Mukhram Yadav, PW-1 Constable Siyaram Yadav and PW-2 Constable Awadhesh Kumar.
12. PW-4 SI Mukhram Yadav who is the first informant in this case has deposed that on 14.12.1997 he was posted as Station Officer, Police Station- Pisawan and left the police station vide GD rapat no.4 at 3:10 hrs. along with Constable Ram Kishor, Constable Siyaram Yadav in search of wanted accused and when he reached at Kutub Nagar, Constable Chandra Prakash and Constable Awadhesh met him, and thereafter, he proceeded from there and reached near power house road where he got information from an informer that near the field of Ganga Ram, resident of village Wazir Nagar, certain persons armed with weapons are cutting government Sisam tree by committing theft and loading it on a DCM. Thereupon, he along with other police personnel reached there at about 08:30 hrs. and found that DCM was parked there on which 3-4 persons armed with weapons were sitting and three persons were standing near the Dala of DCM who were trying to close it. Then, he along with police companion challenged the miscreants, thereupon, the accused persons opened fire on the police party with intention to kill them. Any how 3-4 miscreants succeeded in fleeing from there and accused-appellant Sohan was arrested on the spot and a country made gun in running condition was recovered from his hand, one empty cartridge was found in the barrel of the gun, three live cartridges were recovered from the left pocket of Kurta, one pistol of 9 mm with magazine and 5 cartridges were also recovered from his waist inside Paijama. Accused Ram Prakash was also arrested and on his search country made gun of 12 bore in the chamber of which an empty cartridge was found, two live cartridges of 12 bore were recovered from his pocket of T-shirt. The third person Gajraj was also arrested from there and on his search, a country made Tamancha of 12 bore in the chamber of which an empty cartridge was found and two live cartridges of 12 bore were recovered from the left pocket of his Kameez. The arrested fourth accused told his name as Robin and also told that he is the owner of DCM and the fifth accused told his name as Lilu Singh. He has supported his version in cross-examination and has also produced the 9 mm pistol before the court along with cartridges and magazine (Material-Ext-14). He was cross-examined at length, but nothing came in his cross-examination which creates doubt regarding recovery of country made gun, cartridges and pistol from the accused-appellant.
13. The factum of recovery from the accused-appellant is also corroborated by the deposition of PW-1 Constable Siyaram Yadav and PW-2 Constable Awadhesh Kumar. Nothing came in their cross-examination which creates doubt regarding recovery of country made gun of 12 bore, pistol of 9 mm, magazine and cartridges from the accused-appellant. The other convict Ram Prakash has not preferred any appeal, therefore, recovery regarding him is not being scrutinized in this appeal. The accused-appellant under Section 313 Cr.P.C. has stated that he was apprehended from his house and false recovery of country made gun of 12 bore with cartridges, 9 mm pistol with cartridges and magazine has been shown from him which is planted one.
14. Keeping in view the facts and circumstances of the case, I find that it cannot be planted and the recovery of country made gun, cartridges of 12 bore, pistol of 9 mm along with magazine (Ext.Ka.15) is proved beyond reasonable doubt against the appellant. From the evidence of witness PW-6 Circle Officer Mehak Singh, second Investigating Officer has proved the charge-sheet (Ext.Ka.10) against the accused-appellant Sohan under Section 25(1-B) Arms Act and the steps taken under the investigation. PW-7 SI Gauri Shankar Singh has proved the site-plant (Ext.Ka.12) and also proved the sanction of prosecution against the appellant Sohan (Ext.Ka.14). From it, it is proved beyond reasonable doubt that one country made gun in the chamber of which one empty cartridge was found, cartridges of 12 bore, one pistol of 9 mm with magazine and cartridges were recovered from the accused-appellant Sohan. Learned trial court has rightly held that offence under Section 25(1-B) Arms Act is proved beyond reasonable doubt against the appellant and has rightly convicted and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs.1,000/- according to law, which requires no interference.
15. For the foregoing reasons, I am of the opinion that there is no illegality or perversity in the impugned judgment of conviction and order of sentence dated 22.12.2004 passed by learned Additional Sessions Judge (F.T.C. No. 4), Sitapur in Sessions Trial No. 333 of 1999 (State vs. Sohan and Others), arising out of Case Crime No. 254 of 1997, under Section 25 (1-B) Arms Act, Police Station Pisawan, District Sitapur, convicting and sentencing the appellant to undergo rigorous imprisonment for one year and fine of Rs.1000/-, in default three months further simple imprisonment. Consequently, the impugned order dated 22.12.2004 is, hereby, upheld.
16. The instant criminal appeal is, accordingly, dismissed. The appellant has already served out more than the sentence of one year as awarded by the trial court during trial and after conviction. The appellant need not to surrender. The appellant is directed to deposit the fine amount of Rs.1,000/- as awarded by the trial court, in case the same has not been deposited. The appellant is on bail, his personal bonds are cancelled and sureties are discharged.
17. Let certified copy of this order along with lower court record be transmitted to the trial court concerned for information and necessary compliance.
Order Date :- 11.1.2023 Vikas/-
[Mohd. Aslam, J.]