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2010 DIGILAW 1999 (ALL)

Raju alias Shiv Dayal v. State of U. P.

2010-07-09

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi, J.;- 1. The appellant Raju @ Shiv Dayal has filed this appeal against the judgment and order dated 6.12.1999 rendered by the Special Judge, Lucknow, appointed under the U.P. Gangsters and Anti Social Activities (Prevention) Act, whereby the learned Special Judge has convicted and sentenced the appellant under section 3 of the aforesaid Act to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs. two thousand and in default of payment of fine to under go a further rigorous imprisonment of fifteen days. 2. According to the prosecution, the appellant Raju @ Shiv Dayal and one Ram Beriya had formed a gang to commit offences and terrorized the public and thereby had been indulged in ante social activities. They had also committed the offence under section 307 IPC which was registered at the concerned police station vide the case crime no. 201/1997. They had been made accused even in the case crime no. 205/1997 under sections 452, 302 and 307 IPC. In addition to the said two cases, the appellant was also involved in committing the following offences registered at police station Dalmau, district Raebareli: (i) Crime no. 97/1993 under sections 457, 380 IPC; (ii) Crime no. 22/1991 under sections 307,323 and 506 IPC; (iii) Crime no.44/1999 under sections 406, 480, 467 and 506 IPC; (iv) Crime no. 107/1990 under sections 279, 304A and 201 IPC; and (v) Crime no. 6/1989 under section 4/10 of U.P. Protection of Trees Act. 3. The aforesaid offences had been committed by the gang formed by the appellant and his associates. The police registered the instant case under section 3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, (hereinafter referred as 'the Act'), against the appellant and investigated the matter and submitted a charge sheet before the court concerned. 4. The appellant denied the charge and stated that he has been falsely implicated due to enmity. 5. During the trial, the prosecution examined nine witnesses in support of its case. PW-1 Jai Shankar Singh Yadav, the then Inspector Incharge of the police station Dalmau, PW-2 Shiv Shankar Singh, PW-3 Kalika Prasad and PW-4 Smt. Mohsina Bano have supported the prosecution story and proved that the appellant had been involved in anti social activities and had committed the aforesaid crimes. PW-1 Jai Shankar Singh Yadav, the then Inspector Incharge of the police station Dalmau, PW-2 Shiv Shankar Singh, PW-3 Kalika Prasad and PW-4 Smt. Mohsina Bano have supported the prosecution story and proved that the appellant had been involved in anti social activities and had committed the aforesaid crimes. PW-5 Shiv Bahadur and PW-6 Pradeep Kumar have not supported the prosecution story but only on this ground the statements of the witnesses supporting the prosecution case can not be discarded. 6. PW-7 Tulsi Ram Dohrey is the investigating officer and is a formal witness. The evidences of the witnesses PW-8 Rajendra Singh and PW-9 Chandra Shekhar Pandey are also formal in nature. 7. CW-1 Rajendra Bahadur Singh, who had also investigated the case, has proved the charge sheet and other formal papers. 8. The appellant was examined under section 313 CrPC. He denied the allegations made against him and stated that he has been falsely implicated due to enmity on account of a property dispute. 9. The learned Special Judge, after considering the entire evidence on record arrived at the conclusion that the appellant had indulged himself in anti social activities and was involved in committing the offences of murder and attempt to murder for illegal gains and also in disturbing public order as a member of the gang. Accordingly the learned Special Judge found the charge under section 3 of the Act proved beyond all reasonable doubts and convicted and sentenced the appellant as aforesaid. 10. Heard Mr. R.N. Shukla, the learned counsel for the appellant and the learned A.G.A. for the respondent and perused the record. 11. A perusal of the evidence on record clearly reveals that the finding of the learned Special Judge that the appellant had been involved in committing the offences of murder and also attempt to murder and also disturbing the public order, is based on proper appreciation of the evidence on record. So many cases of serious nature had been registered against the appellant including the cases of murder and attempt to murder. Even during the trial, PW-5 Shiv Bahadur and PW-6 Pradeep Kumar, who had earlier lodged FIR against the appellant, proved the FIR lodged by them, but denied that there was any terror of the appellant. 12. Mr. So many cases of serious nature had been registered against the appellant including the cases of murder and attempt to murder. Even during the trial, PW-5 Shiv Bahadur and PW-6 Pradeep Kumar, who had earlier lodged FIR against the appellant, proved the FIR lodged by them, but denied that there was any terror of the appellant. 12. Mr. R.N. Shukla, the learned counsel for the appellant submitted that PW-4 Smt. Mohsina Bano has admitted in the witness box that she had a dispute with the appellant in regard to a property, therefore, the conviction of the appellant under section 3 of the aforesaid Act was not justified. The learned counsel further submitted that the appellant had been acquitted in all the cases except the cases of murder and attempt to murder, which are still pending. 13. In regard to the first submission that there was a private dispute between the appellant and Pw-4 Smt. Mohsina Bano, it may be mentioned that the instant case has not been initiated only on the basis of that dispute. There were so many cases against the appellant. The cases of murder and attempt to murder do not relate to the dispute between the appellant and PW-4 Mohsina Bano, therefore, the first submission made by Mr. Shukla has no substance. 14. It was also submitted that the appellant has been acquitted in all the cases except the cases of murder and attempt to murder. There is no acquittal in the murder case which is very heinous crime. Moreover, the offence under section 307 IPC is also very serious in nature. Both the trials are still pending. In view of the fact that these two cases are pending and witnesses examined during the trial have stated that the appellant had been involved in anti social activities and terrorising the public and disturbing the public order, therefore, the appellant can not be acquitted in this case on the ground that he had been acquitted in certain previous cases. 15. Section 3 (1) of the Act deals with the penalty. A person is liable to be punished under the said section if he is a gangster. 15. Section 3 (1) of the Act deals with the penalty. A person is liable to be punished under the said section if he is a gangster. The term 'gangster' has been defined in section 2(c) of the Act and it means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities. Section 2(b) defines a gang and it means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing the public order or of gaining any undue temporal,pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities. Sub-clauses (i) to (xv) of clause (b) of section 2 of the Act enumerate various offences, indulgence in committing whereof has been brought within the category of anti social activities for the purposes of section 2 (b) of the Act. Sub-clause (i) deals with the offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. In other words, sub clause (i)) of section 2(b) of the Act is attracted in a case where a person is involved alongwith others in anti social activities, namely, commission of offences punishable under Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code, he shall be deemed to be a member of the gang. In the instant case, adequate evidence to show that the appellant and his companions/associates have not only been involved in committing the offences of murder and attempt to murder but also in disturbing the public order and terrorising the public at large by their anti social activities. In this view of the matter, the offence under section 3(1) of the aforesaid Act is fully proved beyond all reasonable doubts, against the appellant. 16. Mr. R.N. Shukla lastly submitted that the appellant has already served out the sentence imposed by the learned lower court, if it is so he may not be sent again in jail. 17. In view of above, the appeal has no merit and is dismissed.