Indian Kanoon - Search engine for Indian Law

By way of instant criminal appeal challenge has been made to the validity and sustainability of the judgment and order of conviction dated 15.3.1991 passed by the Special Judge (DAA)/IIIrd Additional Sessions Judge, Banda in Special Trial No.109 of 1987 (State vs. Mohammad Rafiq), under Sections-392, 411 IPC, P.S. Karvi, District-Banda, arising out of Case Crime No. 137 of 1987, whereby the appellant has been sentenced to three years rigorous imprisonment under Section-392 IPC and one year rigorous imprisonment under Section-411 IPC.

Heard Sri S.M. Khan, learned counsel for the appellant as well as Sri Om Narain Tripathi, learned AGA for the State and perused the record of this appeal.

Facts relevant for adjudication of this appeal as reflected from record appear to be that an F.I.R. was lodged by the Informant PW-1 Shiv Kumar Singh s/o Ramadheen Singh of Village-Parsaunda, P.S. Pahari, District-Banda on 15.4.1987 at Police Station-Karvi at 7:15 p.m. at Case Crime No.137 of 1987 under Section-392 IPC regarding the incident of loot of his licensed rifle no.18770 by the accused Mohammad Rafiq s/o Babu Khan r/o Old Bazar, Karvi, District-Banda with allegations that it was around 6:00 p.m. on 15.4.1987, the informant had come to the shop of Shiv Kumar Bilauha s/o Sarju Prasad for sale of his grains and after weighing his grain he was resting on a sack with his licensed rifle-7 m.m. no.18770, then the accused who came from the eastern side, suddely snatched away his rifle and sped away towards the southern side. He was caught after little chase by the Informant and Shiv Kumar Bilauha s/o Sarju Prasad and one Umadatt s/o Jageshwar, Shiv Pratap @ Pandey s/o Shyam Sundar along with the looted rifle. He was taken to the police station Karvi and report was lodged. This report-Exhibit Ka-1-was lodged at Check FIR Exhibit Ka-2 at aforesaid crime number on aforesaid date at aforesaid time at police station-Karvi. The relevant entry was also noted in the concerned G.D. and a case was registered against the accused. The investigation took place and the same was conducted by one R.P. Singh, who recorded the statement of various witnesses and after visiting the spot prepared the spot map Exhibit Ka-4 and after completing the investigation filed charge-sheet, Exhibit Ka-5. Relevant to mention that in this case, the Investigating Officer was not produced by the prosecution, therefore, the investigation has been proved by producing Usman Khan PW-5. Consequently, the commital proceeding took place and the accused was charged by the trial court under Sections-392, 411 IPC. Charges were read over and explained to the accused, who denied the charges and claimed to be tried.

In turn, the prosecution produced in all five witnesses. A brief sketch of the same is as here under:-

Shiv Kumar Singh PW-1 is the informant of this case. Shiv Kumar Bilauha PW-2, who has corroborated testimony of PW-1 has supported the claim raised by PW-1. Shiv Pratap PW-3 is also a witness of fact, who happened to be one of the eye-witnesses. Constable, Lala Ram PW-4 has proved lodging of the FIR at the Police Station Karvi on 15.4.1987 and has also proved the concerned Check FIR and the concerned G.D. entry.

It is gathered from perusal of the contents of written report Exhibit Ka-1 that the accused Rafiq s/o Babu Khan snatched away rifle of Informant Shiv Kumar Singh on 15.4.1987. Shiv Kumar Singh had come for sale of his grain at the shop of Shiv Kumar Bilauha s/o Sarju Prasad and was sitting on a sack after selling his grain around 6.00 p.m. He was also possessing his licensed rifle-7 m.m. no.18770 in his right hand. All of a sudden, a boy came from the eastern side and snachted away Informant's rifle and sped away towards southern side. On alarm being raised, Shiv Kumar Bilauha s/o Sarju Prasad, the shopkeeper and the persons present over there, Uma Datt s/o Jageshwar, Shiv Pratap @ Pandey s/o Shyam Sundar chased him up to 100 to 150 paces surrounded and caught him on the spot. On being asked, he disclosed his name Mohammad Rafiq s/o Babu Khan r/o Old Bazar, Karvi. The accused was taken to the police station along with the looted rifle and report was lodged at about 7:15 p.m. In the backdrop of aforesaid allegations, the testimony of prosecution witnesses of fact is to be scrutinized vis-a-vis attendant facts and circumstances, then the testimony of the Informant Shiv Kumar Singh is discovered to be in consonance with the description of the incident narrated in the first information report. He has testified to the magnitude that the incident took place around 6:00 p.m., it was evening, he was sitting with his rifle no. 18770 at the shop of Shiv Kumar Bilauha on a sack. When the accused, who was not known to the informant snatched away in a flash his rifle and fled away towards the southern side when he was chased, surrounded and caught at a short pace by several persons including the informant and others. The rifle was recovered from his possession and he along with others was taken to the police station-Karvi. He has been cross-examined at length by the defense, wherein he has confirmed to the above facts narrated in the first information report. His presence on the spot is natural and cannot be doubted. Admittedly, there was no enmity between the accused and the informant. After strenuous cross-examination nothing adverse has surfaced so as to put any question mark on the veracity of the version of the informant regarding the incident. More or less, similar is the testimony of Shiv Kumar Bilauha PW-2, who has corroborated testimony of PW-1 and has supported the claim raised by PW-1. He has been cross-examined by the defense wherein also the incident has been innocuously described. Likewise, Shiv Pratap PW-3 is also a witness of fact, who happened to be one of the eye-witnesses of fact that alarm was raised and he saw that a person was running away with a rifle and that person was the accused, who was present in the Court and this witness identified accused Rafiq in the trial court itself. He has stated that he also chased the accused and the accused was caught by all the persons present over there. He has also counted several reasons for his presence on the spot. He is resident of neighbouring village where the incident took place. Constable, Lala Ram PW-4 has proved lodging of the FIR at the Police Station Karvi on 15.4.1987 and has proved the concerned entry made in the Check FIR and the concerned G.D. whereby case was registered against the accused as Exhibit Ka-2 and Exhibit Ka-3, respectively. In this case, contention has been raised to the extent that the Investigating Officer has not been produced, however, the ambit of investigation of this case has been proved very much by Constable Usman Khan and he has proved the various papers prepared during the course of investigation and the relevant entries made by the Investigating Officer, Sri R.P. Singh. He has proved specifically site plan, Exhibit Ka-4 and the filing of the charge-sheet, Exhibit Ka-5 in the case. He has been cross examined at length, nothing adverse has surfaced which may reflect on faulty or unfair investigation. Therefore, contention raised to the extent that the Investigating Officer has not been produced before the trial court would not by itself be a ground to over throw the case of the prosecution.