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2005 DIGILAW 179 (RAJ)

Sheesho @ Sheeshram v. State

2005-01-19

F.C.BANSAL

body2005
JUDGMENT 1. - Appellants Sheesho @ Sheeshram and Keshar @ Keshardev faced trial for the alleged commission of offences punishable under Section 397 IPC and Section 3/25 of Arms Act. The trial Court has found both 'the appellants guilty under section 3/25 of the Arms Act and sentenced each to suffer R.I. for three years and to pay a fine of Rs. 500/- with default stipulation. Appellant Sheesho @ Sheeshram has also been found guilty under Section 397 IPC and sentenced to suffer R.I. seven years and a fine of Rs. 500/- with default stipulation. Both the appeals have been heard together and are being decided of by this common Judgment. 2. The prosecution version in nutshell is as follows. 3. On 20.11.1995, Baljeet Singh, Constable No. 1233, PS. Sikari was proceeding from Bharatpur to Sikari on his motor-cycle. At about 6.30 p.m. near village Khoh, three accused-persons armed with revolver made attempt to stop him and when Baljeet Singh did not stop his motor-cycle, then they fired at him. Baljeet Singh fell down from his motor-cycle and thereafter his motor-cycle No. DL-1C/E- 3374 was taken away by the accused persons. A written report Ex.P3 was submitted by Baljeet Singh whereupon a case under Section 392/34 1PC was registered at PS. Deeg, District Bharatpur. On completion of investigation charge-sheet was filed in the Court and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur, Camp Deeg who has passed the impugned judgment. The trial Court has acquitted appellant Keshar @ Keshardev of the charge u/s. 397 IPC. 4. There is no direct evidence against the accused appellant Keshar @ Keshardev and he has been convicted u/s. 3/25 of Arms Act on the basis of the alleged recovery of 'Katta' (country made pistol) from the house of his father Dataram. 5. Having perused the entire prosecution evidence, I have come to the conclusion that the prosecution has failed to prove that the 'Katta' was recovered from the exclusive possession of appellant Keshar @ Keshardev. As per the prosecution case, recovery of 'Katta' was effected in presence of motbirs Shyamveer and Gyansingh Constables but Gyansingh was not produced by the prosecution before the trial Court. As per the prosecution case, recovery of 'Katta' was effected in presence of motbirs Shyamveer and Gyansingh Constables but Gyansingh was not produced by the prosecution before the trial Court. That apart, 'Katta' allegedly recovered on the information and at the instance of appellant Keshar @ Keshardev was not shown to PW4 Shyamveer when he was examined by the trial Court. It was also mentioned in the recovery memo Ex.P8 that the house from which 'Katta' was recovered was in the possession of Dataram, who is father of appellant Keshar. 6. In these circumstances, I am of the considered view that the prosecution has failed to prove the charge under Section 3/25 the Arms Act beyond reasonable doubt against appellant Keshar @ Keshardev and his appeal deserves to be allowed. 7. So far as accused-appellant Sheesho @ Sheeshram is concerned, his name was not mentioned in the written report Ex.P3. Test identification parade of the appellant was not held. Before the trial Court PW3 Baljeet Singh did not identity the appellant. There is no other eye-witness to the alleged occurrence. Motor-cycle belonging to complainant Baljeet Singh was recovered from the possession of the appellant after 35 days of the incident. In view of these facts, I am of the considered view that the prosecution has failed to prove the charge under Section 397 IPC beyond reasonable doubt against appellant Sheesho @ Sheeshram. 8. Learned counsel for the appellant has not challenged the recovery of the motor-cycle belonging to the complainant and 'Katie' from the house of the appellant on his disclosure statement under Section 27 of the Evidence Act. Therefore, presumption under Section 114(a) of the Indian Evidence Act is drawn against the appellant and he is found guilty for having received the motor-cycle knowing it to be stolen, which is punishable under Section 411 IPC. As the appellant was not having valid licence of 'Katta', his conviction and sentence under Section 3/25 the Arms Act deserves to be maintained. 9. Consequently, the appeal of appellant Keshar @ Keshardev is allowed. While setting-aside his conviction and sentence, he is acquitted of the charge under Section 3/25 of the Arms Act. He is on bail. His bail bonds stand cancelled. 10. 9. Consequently, the appeal of appellant Keshar @ Keshardev is allowed. While setting-aside his conviction and sentence, he is acquitted of the charge under Section 3/25 of the Arms Act. He is on bail. His bail bonds stand cancelled. 10. The appeal of appellant Sheesho @ Sheeshram is allowed in part While modifying the Judgment and order of the trial Court, he is acquitted of the charge under Section 397 IPC. Instead. he is convicted under Section 411 IPC and sentenced to suffer rigorous imprisonment for three years. His conviction and sentence under Section 3/25 of the Arms Act stand confirmed. He has remained in custody for more than three years. Therefore, shall be released forthwith from the jail, if not required to be detained in any other case.Appeal of K allowed and that of S Partly allowed. *******