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2017 DIGILAW 1539 (ALL)

NARESH @ FAUJI v. STATE OF U. P.

2017-06-16

ABHAI KUMAR

body2017
JUDGMENT : 1. Heard Sri Mukhtar Alam, learned counsel for the appellant and the learned AGA for the State. 2. This appeal has been preferred against the judgment and order dated 13.8.2008 passed by Additional Sessions Judge (Fast Track) Court No. 22, Bulandshahar, in Session Trial No. 929 of 2005 (State Vs. Naresh @ Fauji) in Case Crime No. 80 of 2005, under Section 412 IPC and in Session Trial No. 985 of 2005 (State Vs. Naresh @ Fauji) in Case Crime No. 86 of 2005, under Section 25/27 Arms Act, Police Station Jahangirabad, District Bulandshahar, convicting the appellant Naresh @ Fauji for seven years rigorous imprisonment with a fine of Rs. 5,000/- under Section 412 I.P.C. and in default in payment of fine to further undergo six months additional imprisonment and for two years rigorous imprisonment with a fine of Rs. 5,000/- under Section 25/27 Arms Act and in default of payment of fine to further undergo for six months additional imprisonment. The appellant was acquitted for the charges under Section 395 and 397 IPC. Coaccused Jafar @ Jafaru, Anvar, Ikram and Naved had been acquitted in Session Trial No. 210 of 2006. All the above referred three session trials were decided by a common judgment. 3. Brief facts of the case are as follows: 4. An FIR was lodged on 3.5.2005 by PW-5 Mukesh Gupta, Manager, Punjab National Bank, that on 3.5.2005 bank officials, Vishnu Dayal, Cashier along with Jai Singh and Gaurd Soran Singh were coming to Anup Shaher after taking Rs. 10 Lakhs from Deputiganj, P.N.B. Branch in a Maruti Van No. DL-3C R-3744. In the afternoon at 12.15, when vehicle reached near Jugshana Brick-Kiln, a Maruti Car having No. HR-51 S-3795 and one Motorcycle bearing No. DL-555-4013 upon which miscreants were seated overtook the Maruti Van and then Van was looted by them. All the miscreants were armed with weapons. When Guard Soran Singh fired in the defence, then Soran Singh was got injured by the miscreants. Miscreants fled away from the place of incident with the looted money along with D.B.B.L. Gun, One Mobile of Jai Singh leaving behind their Maruti Car. 5. On being informed, complainant reached upon the spot. Injured Soran Singh was sent to District Hospital Bulandshahar for treatment. The FIR was lodged against unknown persons narrating the details of looted currency. 6. Miscreants fled away from the place of incident with the looted money along with D.B.B.L. Gun, One Mobile of Jai Singh leaving behind their Maruti Car. 5. On being informed, complainant reached upon the spot. Injured Soran Singh was sent to District Hospital Bulandshahar for treatment. The FIR was lodged against unknown persons narrating the details of looted currency. 6. During the investigation appellant in his confessional statement, who was detained in a case under Section 25 Arms Act in the Police Station, revealed his complicity and on his pointing Rs. 1,22,000/- and D.B.B.L. Gun was recovered. 7. Coaccuseds who were arrested in a case under Section 307 IPC along with other sections also confessed their involvement in the matter and one mobile looted from Jai Singh was also recovered from the house of Ikram on his pointing out. As many as 13 witnesses were produced by the prosecution side whereas for the purposes of this trial only the statements of PW-6 S.I. Banwari Lal and PW-7 Inspector A.K. Verma are relevant. 8. In the statement under Section 313 Cr.P.C. nothing was asserted by the appellant although it was stated by him that a defence will be given but no defence was provided by him. 9. It is contended by the learned counsel for the appellant that the appellant was not named in the FIR and certain recovery is said to have been made on the pointing out of the appellant. It is also contended by the learned counsel that no witness of spot was taken in the recovery process and the bank officials who are said to be with the police personnel at the time of recovery, did not support the recovery. It is further submitted by the learned counsel that appellant was implicated with ulterior motive and for claiming to have solved the sensational cases by police. It is further submitted by the learned counsel that even if case is accepted to be proved, then charge under Section 412 IPC is not made out against the appellant and utmost a charge under Section 411 IPC is made out, because the charges under Section 395/397 IPC were not proved against the appellant as well as other co-accuseds. 10. It is further submitted by the learned counsel that even if case is accepted to be proved, then charge under Section 412 IPC is not made out against the appellant and utmost a charge under Section 411 IPC is made out, because the charges under Section 395/397 IPC were not proved against the appellant as well as other co-accuseds. 10. It is also submitted by the learned counsel that PW-9 Sardar Singh did not find favour of the trial court who is said to have seen the miscreants prior to the incident going in the same Maruti which was used by them in the incident and was recovered on spot. 11. Learned AGA vehemently opposed the contention of the learned counsel for the appellant and submitted that recovery of looted currency as well as D.B.B.L. Gun is proved against the appellant and appellant was very well in the knowledge that it is a property regarding the dacoity, hence charges under Section 412 IPC is clearly made out. 12. Trial Court acquitted the appellant under Section 395/397 IPC and all other co-accused under all sections and from this fact it is apparent that prosecution failed to prove the complicity of the appellant regarding the incident that took place on 3.5.2005. 13. After eight days of the incident on 11.5.2005 on the pointing out of the appellant recovery was made and complicity of other four other co-accuseds are being shown in the matter on 10.5.2005 after confessional statement by them and recovery of mobile from the house of Ikram and Investigating Officer altered investigation from Section 394 IPC to Sections 395/397 and 412 IPC. 14. Although in the recovery memo signature of bank officials are there namely, Anil Kumar, Vishnu Dayal and Jai Singh, but during their statement before the court, all these three witnesses did not support the case of the prosecution regarding the recovery of currency as well as D.B.B.L. gun on the pointing out of the appellant. 15. It is contended by the learned AGA that these are public witnesses and due to fear of the appellant who is a hardened criminal, they might have turned to safer course and did not support the recovery. It is also contended by the learned AGA that during the recovery public witnesses of the place were tried to be taken but none was ready to give witness of the recovery. 16. It is also contended by the learned AGA that during the recovery public witnesses of the place were tried to be taken but none was ready to give witness of the recovery. 16. The contention of the learned AGA can very well be accepted and on the basis of the statement of PW- 1 Vishnu Dayal, PW-2 Jai Singh and PW-3 Anil Kumar, it cannot be said that recovery on the pointing out of appellant was false one. All the above referred three witnesses did support the case of the dacoity and PW- 4 Soran Singh, Guard, also supported the fact of looting of cash of the bank as well as D.B.B.L. Gun and Mobile. Seeing the gravity of the incident committed by the miscreants, if there was apprehension in the mind of the witnesses, and consequently if they did not support the recovery on the pointing out of appellant, then that cannot be fatal if other cogent evidence is upon record regarding the recovery. 17. As already said above, statement of PW-6 and PW-7 are relevant for the purposes of this appeal. PW-6 Banwari Lal, was a member of police personnels when recovery was made and PW-7 Inspector A.K. Verma was Investigating Officer at that time. In the leadership of him, recovery was made. Both these witnesses supported the case of the prosecution and had in clear terms stated that on the pointing out of appellant recovery of Rs. 1,22,000/- as well as D.B.B.L. Gun that was looted in the incident were recovered. Evidence of both these witnesses were examined by the trial court and found them to be trustworthy. 18. Going through the statement of these witnesses I also found that there is nothing in the corss-examination of these witnesses which can be belied their truthfulness. PW-6 in his cross-examination has clearly stated that his signature is not upon polythene in which currencies are sealed but his signature is there on the cloth in which polythene was wrapped. He also admitted his signature on seized material and one additional signature was also admitted by him. He has clearly stated that the Gun and Currency were recovered about one and half balisht under the ground and there was lot of leaves upon that. The time of taking the appellant to the recovery place and returning to police station thereafter, was clearly mentioned by this witness. He has clearly stated that the Gun and Currency were recovered about one and half balisht under the ground and there was lot of leaves upon that. The time of taking the appellant to the recovery place and returning to police station thereafter, was clearly mentioned by this witness. Similarly PW-7 has also supported the case of the prosecution and it has been stated by this witness that prior to arrest of Naresh several persons were interrogated regarding the complicity in the present matter. But as their complicity was not found, they were sent back. It is further stated by him that appellant confessed involvement in the matter after interrogation of 15 to 20 minutes. This witness was not elaborately cross-examined on the point of recovery rather only few questions were asked. Nothing has been asked regarding the false implication of the appellant. Although, rest of the accused persons submitted their defence regarding the false implication and asserted that they were arrested from some other place and were falsely implicated in the case under Section 307 IPC along with other sections. Those facts found favour of the trial court and also on the basis that the co-accuseds were acquitted in the cases under Section 307 of IPC and other sections whose reference is given above. The recovery of mobile was also not found trustworthy and accordingly acquitted co-accused. But the case of the appellant is different from them. At no point of time he contended that the was arrested from some other place and was falsely implicated in the case. He was in the custody in some other case under Section 25 Arms Act and even in the statement under Section 313 Cr.P.C., nothing has been asserted by the appellant regarding false implication. Accordingly, this Court is of the view that the trial court after considering the whole evidence on record came to the conclusion regarding the involvement of the appellant in the matter and found him guilty under Section 412 IPC as well as under Section 25/27 Arms Act. This Court totally agree with the finding of the trial court and no different finding could be made. Accordingly, the conviction made by the trial court is based on proper appraisal of evidence and not liable to be interfered. 19. This Court totally agree with the finding of the trial court and no different finding could be made. Accordingly, the conviction made by the trial court is based on proper appraisal of evidence and not liable to be interfered. 19. The second contention of the learned counsel for the appellant regarding the charge under Section 412 IPC is concerned, is being fortified by the learned counsel on the basis of law propounded by the Apex Court in Sheo Nath Vs. The State of U.P., in Criminal Appeal No. 49 of 1969 decided on 15 October, 1969. It was found by the Apex Court that appellant was cloth merchant and he might have acquired those goods as receiver and it was not known to him that they were stolen in dacoity. It is further observed by the Apex Court that in the facts of this case, it seems that only legitimate presumption to be drawn is that the appellant knew that the goods were stolen but he did not know that they were stolen in a dacoity. The appellant, therefore, can only be convicted under Section 411 IPC. 20. The observation of the Apex Court squarely covers the present matter. Appellant was not found guilty under Section 395/397 IPC. It was incumbent upon the prosecution for proving the charge under Section 412 IPC that appellant was in the knowledge that some dacoity has taken place and prosecution also ought to have proved that appellant received the stolen property that has been looted in dacoity. There is no evidence regarding the knowledge of the appellant in this regard. In the circumstances, if any property that is being looted in the incident is being retained by the appellant without the knowledge that it is related to a dacoity then appellant can only be charged under Section 411 IPC and not under Section 412 IPC. This Court is of the view that trial court failed to appreciate the matter in the above perspective and the conviction made by the trial court under Section 412 IPC is liable to be altered under Section 411 IPC. 21. Appeal is partly allowed. 22. So far as the conviction of the appellant is concerned that is upheld but the conviction under Section 412 IPC is altered to under Section 411 IPC and the appellant is convicted and sentenced to three years rigorous imprisonment with a fine of Rs. 21. Appeal is partly allowed. 22. So far as the conviction of the appellant is concerned that is upheld but the conviction under Section 412 IPC is altered to under Section 411 IPC and the appellant is convicted and sentenced to three years rigorous imprisonment with a fine of Rs. 5,000/-. In default of payment of fine further undergo imprisonment of six months. 23. So far as conviction under Section 25/27 Arms Act is concerned, appeal is dismissed in this regard. 24. As per report of Jail Superintendent, Bulandshahar, appellant has already undergone the whole punishment of seven years as well as imprisonment in default of payment of fine and he has already been released on 5.8.2011 in this matter. 25. Lower court record be sent back for necessary action.