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2014 DIGILAW 244 (UTT)

Karan Singh @ Kan Singh v. State of Uttarakhand

2014-05-29

U.C.DHYANI

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JUDGMENT U.C. Dhyani, J. 1. P.W 1 S.O. J.L. Sah set the criminal law into motion by lodging an FIR against six named accused and one unnamed accused for the offences punishable under Sections 147, 148, 149, 472, 307 of IPC, Sections 177, 129, 207, Motor Vehicles Act and Section 60 of U.P Excise Act on 07.08.1995 at P.S. Satpuli, District Pauri Garhwal. The incident allegedly took place in the intervening night of 06.08.1995/07.08.1995. The distance between the place of incident and P.S concerned was 26 kilometers and hence there appears to be no delay in lodging FIR. 2. After the investigation of the case, charge-sheets were submitted against the accused persons for the self same offences. Case was committed to the Court of Sessions. When the prosecution opened its case, charges were framed against the accused persons namely, Gurudev Singh, Karan Singh and Basant Kumar, who pleaded not guilty and claimed trial. Case against Naresh Mittal was abated. Accused Salim and Jayveer absconded after they were enlarged on bail. P.W 1 G.L Sah S.O, P.W 2 Constable Hariom Sharma, P.W 3 S.I Prati Pal Singh Rautela and P.W 4 B.S Chauhan were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr. P.C. in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned trial court acquitted Gurudev Singh of the charges levelled against him. Accused Karan Singh @ Kan Singh and Basant Kumar were convicted of the offences punishable under Section 307 read with Section 149 IPC, Section 148 IPC and Section 60 U.P Excise Act. They were sentenced appropriately. Aggrieved against their conviction and sentences, present criminal appeal was preferred by them. Judgment and order dated 20.10.2003 is subject matter of challenge before this Court. 3. P.W 1 was posted as S.O in P.S Satpuli on 06.08.1995. P.W 1 stated that when he, alongwith other police personnel, was present in P.S Satpuli, a tata truck came from Kotdwar at 8:35 pm. The driver of the truck broke the chain of the barrier. He proceeded towards Pauri. The truck was followed by a maruti van car. Police personnel chased them in a jeep. P.W 1 stated that when he, alongwith other police personnel, was present in P.S Satpuli, a tata truck came from Kotdwar at 8:35 pm. The driver of the truck broke the chain of the barrier. He proceeded towards Pauri. The truck was followed by a maruti van car. Police personnel chased them in a jeep. Police personnel asked the truck driver to stop and give passage to them but a person, sitting in truck, fired upon the police personnel with the intention of killing them. P.W 1 and other police personnel escaped unhurt. A person was sitting in the maruti van. He also fired upon the police personnel. The police personnel therefore had a belief that the maruti van and truck were carrying some contraband. Police personnel fired upon the truck. But the fire could not hit the tyres of the truck. A person who was sitting in the truck, fired upon P.W 1, but P.W 1 escaped unhurt. After great efforts the police personnel were able to apprehend the drivers of maruti van and truck. Three persons were sitting in the truck, and two persons were in the maruti van. The persons sitting in the maruti van and one person sitting in the truck fled away towards Santodhar. On the search of maruti van, it was found that the dickey was full of illicit liquor. The same was kept in jute bags. The police personnel chased those who had fled away from the scene, but those persons could not be traced. Those apprehended on the spot were – Basant Kumar, Salim, Jayveer Singh and Karan Singh. Basant Kumar told police personnel that the owner of truck Gurudev was sitting in the maruti van Basant Kumar told that it was Gurudev who fired upon the police personnel. The owner of the truck Naresh Mittal also fled away. Those accused who were arrested by the police personnel, told them that they were the partners of Naresh Mittal and they were going to sell illicit liquor with Basant Kumar, who was a local person. 24 bags of illicit liquor, which was kept in pouches, were recovered. 400 pouches were found in maruti van and 5800 pouches were recovered from the truck. The sample of illicit liquor was taken and sealed. Cartridge 315 bore was also found beneath the seat of maruti van. A recovery memo (Ext. Ka-1) was prepared. 24 bags of illicit liquor, which was kept in pouches, were recovered. 400 pouches were found in maruti van and 5800 pouches were recovered from the truck. The sample of illicit liquor was taken and sealed. Cartridge 315 bore was also found beneath the seat of maruti van. A recovery memo (Ext. Ka-1) was prepared. A copy of the same was given to the accused persons. 4. In his cross examination, P.W 1 stated, among other things, that no one sustained injuries in the course of such incident. It was admitted by P.W 1 that no public witness was ready to be a witness to such recovery. P.W 1 further admitted that Ext. Ka-1 did not contain the signatures of the accused. P.W 1 was recalled at the instance of learned prosecutor. The jute bag alongwith 31 pouches (Material Exhibits 10 to 41) were placed before learned trial court alongwith empty cartridges. In the cross examination, P.W 1 denied the suggestion that nothing was recovered from the possession of the accused and entire recovery was false. 5. P.W 2, who accompanied P.W 1, supported the prosecution story and stated, among other things, that pouches of illicit liquor were found from the possession of the appellant in truck as well as in maruti van. He also stated that the sample of illicit liquor was taken on the spot and before that, a recovery memo Ext-Ka-1 was prepared. 6. In his cross examination, P.W 2 stated that the case property was properly labelled. He admitted that no police personnel sustained injury during the course of firing by the accused persons (read appellants). 7. P.W 3 conducted the investigation of the case against Gurudev and Naresh Jaiswal (non-appellants) and after being satisfied that the accused persons committed offences, submitted charge-sheet (Ext.Ka-2) under Sections 307, 147, 148, 149, 427 IPC against them. He also conducted investigation of Excise case and submitted charge-sheet under Section 60 Excise Act against accused. P.W 3 also proved site plan, charge-sheet and chick FIR. P.W 4 was the Excise Inspector who conducted physical and chemical test of the liquid which was sent to him for examination. Excise Inspector proved report (Ext Ka-9) in relation to illicit liquor, which was sent to him for physical and chemical examination. 8. P.W 3 also proved site plan, charge-sheet and chick FIR. P.W 4 was the Excise Inspector who conducted physical and chemical test of the liquid which was sent to him for examination. Excise Inspector proved report (Ext Ka-9) in relation to illicit liquor, which was sent to him for physical and chemical examination. 8. Offence punishable under Section 60 U.P Excise Act was proved against the appellants on the basis of the oral testimony of P.W 1, P.W 2, coupled with the evidence of P.W 4 (Excise Inspector) and P.W 3, who proved charge-sheet (Ext. Ka-8) under Section 60 U.P Excise Act against the appellants. Learned trial court correctly appreciated the evidence, in so far as the same relates to Section 60 U.P Excise Act. There is no illegality in the impugned judgment and order, in so far as the conviction of the appellants for the offence punishable under Section 60 U.P Excise Act is concerned. This Court is perfectly in agreement with the view/opinion of learned trial court, who committed no mistake, in holding that offence under Section 60 U.P Excise Act was proved against the appellants beyond a shadow of reasonable doubt. 9. But the prosecution evidence against the appellants, on other counts, is far from inspiring. It is an admitted fact that neither the police personnel, nor the appellants, sustained the injuries during the course of incident. It is an admitted fact that when the accused persons fired upon the police personnel, they escaped unhurt. It has clearly come in the evidence of P.W 1 that Gurudev (non-appellant) fired upon the police personnel. In such a situation, it is difficult to believe that the appellants committed any offence punishable under Section 307 IPC read with Section 149 IPC. No public witness was ready to be a witness to such an incident. The law does not enjoin that the evidence of police witnesses should not be believed. It can be believed, but the same should inspire confidence. In other words, the evidence tendered by the police personnel is acceptable so long as the same inspires confidence. In the instant case, it is difficult to believe the prosecution story, in so far as the offence of attempt to murder is concerned. The trial court has committed a manifest error in accepting the prosecution story to such an extent. In other words, the evidence tendered by the police personnel is acceptable so long as the same inspires confidence. In the instant case, it is difficult to believe the prosecution story, in so far as the offence of attempt to murder is concerned. The trial court has committed a manifest error in accepting the prosecution story to such an extent. When the story of Section 307 IPC was not believable, it is difficult to believe that the appellants were armed with deadly weapon and also that they were guilty of rioting. The conviction of the appellants for the offences punishable under Section 307 read with Section 149 IPC, as also Section 148 IPC should, therefore, be set aside. No interference is called for in so far as the conviction of the appellants under Section 60 U.P Excise Act is concerned. 10. Criminal appeal is therefore partly allowed. The conviction and sentence awarded to the appellants under Section 307 read with Section 149 IPC and Section 148 IPC is accordingly set aside, but their conviction for the offence punishable under Section 60 U.P. Excise Act (as applicable to Uttarakhand) is affirmed. 11. Learned Amicus Curiae prayed that the sentence awarded to the appellants be reduced. Learned Amicus Curiae submitted that a sentence of two years’ imprisonment alongwith fine of Rs. 25,000/- each, is very harsh. Agreeing to such submission of learned Amicus Curiae, the sentence awarded to the appellants is reduced to the extent that the appellants shall undergo imprisonment for a period of one year alongwith a fine of Rs. 25,000/- each, in default of payment of which, each one of them will serve further imprisonment for three months. Period already undergone by the appellants during investigation and trial shall be set off against the substantive sentence of imprisonment. 12. Let lower court record be sent back alongwith a copy of this judgment.