Uttarakhand High Court
Jahangir And Another vs State Of Uttarakhand on 3 October, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 418 of 2013
Jahangir and another ....... Appellants
versus
State of Uttarakhand ....... Respondent
Dr. Kartikey Hari Gupta, Advocate for the appellants.
Mr. Subhash Tyagi Bhardwaj, Dy. Advocate General for the respondent
State.
with
Criminal Appeal No. 386 of 2013
Brij Mohan Chauhan @ Mohan Chauhan ....... Appellant
versus
State of Uttarakhand ....... Respondent
with
Criminal Appeal No. 423 of 2013
Abdul Gani and another ....... Appellants
versus
State of Uttarakhand ....... Respondent
with
Criminal Appeal No. 434 of 2013
Shannu @ Shamshad ....... Appellant
versus
State of Uttarakhand ....... Respondent
and
2
Criminal Appeal No. 135 of 2014
Mohammad Yunus ....... Appellant
versus
State of Uttarakhand ....... Respondent
Dr. Kartikety Hari Gupta, Advocate (Amicus Curiae) for the appellant(s).
Mr. Subhash Tyagi Bhardwaj, Dy. Advocate General for the respondent
State.
U.C. Dhyani, J.(Oral)
Since the above-noted criminal appeals are directed against the conviction of the appellants from a common judgment and order dated 10.09.2013, therefore, they are being decided together for the sake of brevity and convenience on the joint request of learned counsel for the parties.
2) Dr. Kartikey Hari Gupta, who has filed his Vakalatnama in one of the criminal appeals, being CRLA no. 418 of 2013, Jahangir and Hussaini @ Abba vs State, and is ready to argue the criminal appeals on behalf of other appellants, in CRLA no. 386 of 2013, Brij Mohan Chauhan @ Mohan Chauhan vs State; CRLA no. 423 of 2013, Abdul Gani and Ram Avtar vs State; CRLA no. 434 of 2013, Shannu @ Shamshad vs State and CRLA no. 135 of 2014, Mohammad Yunus vs State, therefore, he is appointed Amicus Curiae to assist the Court and argue aforementioned criminal appeals on behalf of other appellants also. It may be noted here that factual matrix of all the criminal appeals and the law governing the field is the same and, therefore, they are being disposed of by this 3 common judgment and order after hearing Dr. Kartikey Hari Gupta, Advocate, who has filed his Vakalatnama in CRLA no. 418 of 2013 and is agree to be Amicus Curiae in identical matters referred to above, in the interest of justice.
3) All the above-noted criminal appeals are directed against the judgment and order dated 07.09.2013 / 10.09.2013, passed by learned Sessions Judge, Nainital (Special Judge, Gangster Act), in Special Sessions Trial no. 18 of 2007, whereby the appellants have been held guilty for the offence punishable under Section 3(1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- each and in default of making payment of fine to undergo additional imprisonment of six months.
4) It is a fact of common knowledge that U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (here-in-after referred to as 'the Act') is fastened on the basis of criminal cases shown in the gang chart. Even a single case is sufficient to attract the provisions of the Act. The only condition is that the criminals against whom the Act has been fastened must belong to a 'gang' which has been defined in Section 2(b) of the Act. The range of such activities is very wide. The Court need not reproduce the range of such anti-social activities for the sake of brevity. Suffice will it be to say that 'gang' means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or 4 coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, which has been described in Section 2(b) of the Act.
5) Penalty is prescribed in Section 3 of the Act. It says that a gangster shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees. A proviso is also added to Section 3, but since that proviso is not applicable to the facts of the present case, therefore, the same is not being delineated. Special Courts are to be created for the purpose as has been mentioned in Section 5 of the Act. There are special rules of evidence, as per Section 4 of the Act. There is a Special Prosecutor appointed for prosecuting the gangsters. Procedure and powers of Special Courts have been mentioned in Section 10 of the Act. Section 12 of the Act stipulates that the trial under this Act of any offence by Special Court to have precedence over the trial of any other case against the accused in any other Court.
6) Section 18 of the Act provides that the provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgment or order of a Court passed under the provisions of this Act. Section 20 of the Act provides that the provisions of this Act or any rule made there under shall effect notwithstanding anything 5 inconsistent therewith contained in any other enactment. Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, as Court shall, within the meaning of the Indian Evidence Act, 1872 (Act no. 1 of 1872), presume that such order was so made by that authority. This is provided in Section 21 of the Act.
7) This Court has given a brief sketch of the Act to enable it to appreciate the evidence which has been adduced against the appellants.
8) Learned counsel for the appellants has informed the Court that the appellants have already been convicted under Section 364A IPC by Sessions Judge, Nainital. A criminal appeal against their conviction under Section 364A IPC is pending adjudication before the Hon'ble Division Bench of this Court. That was the case, along with other criminal cases, which was shown in the gang chart of the appellants, which constituted the launching pad for prosecution of the appellants under Section 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. Needless to say, that such an Act is applicable to the State of Uttarakhand, as well.
9) After charges were framed against the appellants, they pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Inspector Harish Bahadur Sen; PW2 Ram Sharan Verma; PW3 SHO Arun 6 Kumar Verma; PW4 S.O. R.S. Mehta; PW5 Rajeev Verma (victim); PW6 Inspector Bhupendra Singh Dhoni; PW7 S.I. Jagdish Singh and PW8 Inspector Vipin Chandra Pant. After prosecution evidence was concluded, the statements under Section 313 Cr.P.C. of the appellants were recorded, in which they stated that the entire evidence against them is false. However, no evidence was adduced in defence.
10) Learned trial court having appropriately discussed the evidence found the appellants guilty of offence punishable under Section 3(1) of the Act and sentenced them to undergo rigorous imprisonment for three years along with a fine of Rs.5,000/- each, in default of payment of which, each one of the convicts was directed to undergo six months additional imprisonment, vide judgment and order dated 10.09.2013.
11) PW1 conducted the investigation of the case at some length. Before him, one S.I. R.C. Makholia was the Investigating Officer. PW1 submitted charge sheet against the appellants. The documents were accordingly exhibited. PW1 prepared the gang chart, got it approved from the Circle Officer and the District Magistrate, proved gang chart, lodged FIR, which was scribed by Head Moharir Ram Singh (since deceased). PW1 also made an entry of the chik in the General Diary and proved other relevant documents as well.
12) PW2 was a jeweller, who ran the business in the name and style of 'Kumaon Jewellers' in Haldwani.
7According to PW2, he runs the business still today (as on the date of his evidence). According to PW2, Rajeev (victim) was abducted by someone. The information was given to this witness by his wife. FIR was lodged at PW2's instance. PW2's son was recovered after 27 days of the incident by the police. According to PW2, the persons who abducted his son, were gangsters, who illegally gained pecuniary advantage for themselves and indulged in anti- social activities.
13) PW3 got an information through an informer that the hooligans are going to commit some offence. PW3 along with other police personnel proceeded towards the spot. Miscreants fired upon the police party. No police personnel, however, sustained any injury in the incident. One of the miscreants Brij Mohan was identified, the others fled away from the place of incidence.
14) PW4 along with other police personnel arrested Brij Mohan. A country made pistol (314 bore) and four cartridges were recovered from his possession. The documents were got exhibited at the instance of PW4.
15) PW5 is the victim, who narrated the whole incident in the Court and supported the prosecution story. It is not necessary for this Court to describe the whole examination-in-chief and cross-examination of PW5, for the same already formed part of the record. According to PW5, he was abducted for ransom. PW5 identified the appellants. Although certain discrepancies occurred in his 8 cross-examination, but those discrepancies may be attributed to the fact that PW5 was adducing evidence after a long time, as has been stated by him in paragraph 24 of his cross-examination. The victim has also stated that he was kept in a dark room during day hours and, therefore, it is not possible for him to identify the appellants after a lapse of long time. The question is - why will a victim tell a lie? Enmity is a double edged weapon. One can be falsely implicated on account of such enmity, but at the same time, there is every possibility that one can commit the crime with the victim on account of such enmity. Anyway, the evidence of victim (PW5) was read over by learned counsel for the State to emphasize that evidence of PW5 is believable and his evidence cannot be discarded merely on the basis of some infirmities, here and there.
16) PW6 stated that the victim (PW5) was recovered from the place where he was kept hostage by the appellants. Hands and legs of the victim were found tied with a rope. Victim was kept hostage by the gangsters and later on released with the intervention of PW6 and others. When the victim was released, he started weeping and narrated the entire story to the police officers.
17) PW7 is a formal witness. PW8 conducted the investigation in respect of an offence punishable under Act no. 7 of 1986. In his statement, PW8 has described what was done by him during the course of incidence. The Court does not feel it necessary to reproduce the entire evidence. PW8 was cross-examined on behalf of the defence.
9Nothing has come out in his evidence which comes to the rescue of the appellants.
18) When the statements of the appellants were recorded under Section 313 Cr.P.C., although they tried to justify that they have been falsely implicated in the crime, but under the weight of heavy evidence adduced on behalf of the prosecution, mere statements of the appellants do not carry any weight. Moreover, the appellants have already been convicted under Section 364A IPC, and as stated above, their criminal appeal is pending adjudication before the Hon'ble Division Bench of this Court.
19) The prosecution has, therefore, been able to establish the fact that appellants abducted PW5 with the intent to extort ransom and thereby constituted a group of persons, who acting collectively, by violence, or intimidation, or coercion for gaining undue pecuniary advantage for themselves indulged in anti-social activities. Thus, this Court is satisfied that the appellants constituted a gang and were therefore 'gangsters', who ought to have been punished and were rightly been punished under Section 3(1) of the Act.
20) At this stage of dictation, Dr. Kartikey Hari Gupta, Advocate for the appellants in CRLA no. 418 of 2013 and Amicus Curiae for other appellants in connected criminal appeals, confined his prayer only to the extent that the sentence awarded to the appellants be reduced to the minimum sentence prescribed under Section 3 of the Act.
10According to Dr. Kartikey Hari Gupta, the above-noted criminal appeals are only against the activities of the appellants under Section 2/3 of the Act and the main criminal appeal against their conviction under Section 364A IPC is already pending adjudication before the Hon'ble Division Bench of this Court. In any case, the appellants will be convicted, if the Hon'ble Division Bench thinks that the appellants have really committed the offence punishable under Section 364A IPC. Otherwise also, if the appellants are convicted under Section 364A IPC, the same will not be violative of Article 20(2) of the Constitution of India.
21) Learned counsel for the State agrees to the submission of Dr. Kartikey Hari Gupta that the minimum sentence prescribed under Section 3 of the Act may be imposed upon the appellants.
22) Considering the entire conspectus of facts, this Court is of the opinion that the ends of justice will be met if the appellants are awarded with a sentence of two years along with a fine of Rs.5,000/- each, which is minimum under Section 3 of the Act. Although the above-noted criminal appeals are dismissed on merits, but interference is called for on the point of sentence only, which is modified to the extent that all the appellants shall undergo rigorous imprisonment for a period of two years along with a fine of Rs. 5,000/- each. In default of payment of fine, the convicts-appellants shall undergo further imprisonment for 11 six months, as has already been directed by Special Judge under Act no. 7 of 1986.
23) Judgment and order dated 10.09.2013, passed by learned Sessions Judge, Nainital (Special Judge, Gangsters Act) in S.S.T. no. 18 of 2017 is, accordingly modified to the extent, as above.
24) Order accordingly. 25) Appellants are on bail. Their bails are
cancelled. Appellants are directed to surrender forthwith before the court below to serve out the remaining part of the sentence as modified by this Court. The period already undergone by the appellants shall be adjusted towards the sentence as has been modified by this Court.
26) Let a copy of this judgment alongwith the lower court record be sent to the court below for ensuring compliance as above.
27) With the modification as above, all the criminal appeals stands disposed of.
(U.C. Dhyani, J.) Dt. October 03, 2017.
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