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2018 DIGILAW 695 (ALL)

MUNEER @ GOLI v. STATE OF U. P.

2018-03-22

VIJAY LAKSHMI

body2018
JUDGMENT : Hon’ble Mrs. Vijay Lakshmi, J.—The present criminal appeal has been preferred against the judgment and order dated 24.1.2018 passed by learned Additional Sessions Judge, Court No. 4, Jaunpur in Sessions Trial No. 16 of 2015 (State v. Muneer alias Goli) arising out of Case Crime No. 680 of 2014, under Section 3/25 Arms Act, Police Station Rampur, district Jaunpur whereby the appellant has been convicted and sentenced under Section 3/25 Arms Act with 3 years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine with additional imprisonment of 2 months. The trial Judge has also given the benefit of Section 428 Cr.P.C. to the appellant. 2. Heard learned counsel for the appellant and learned A.G.A. Perused the record. 3. The background facts, in brief, are that according to the prosecution case, on 2.11.2014, a secret information was received by the police from a Mukhbir (informer) that accused Muneer alias Goli, involved in Case Crime No. 670 of 2014 under Section 307 I.P.C. and 3 (2) V of SC/ST Act, Police Station Rampur, district Jaunpur, is waiting for the vehicle at Sanjha Chulha Dhaba and if prompt efforts are made, he can be easily arrested. On this information, the police party reached at the spot and arrested the appellant alongwith one country made pistol and 2 live cartridges. After arrest, the recovery memo was prepared on the spot at 5.30 p.m. on the basis of which F.I.R. was registered on the same day at 6.30 p.m. at P.S. Rampur, district Jaunpur and the matter was investigated. After investigation the police submitted charge-sheet against the appellant. The case being triable by the Court of Sessions, it was committed to the Court of Sessions where charges were framed under Section 3 and 25 Arms Act against the appellant from which he denied and claimed to be tried. 4. The prosecution in order to prove its case produced 3 witnesses in all. P.W. 1 is S.I. Arvind Kumar Yadav, who was posted at Chowki Incharge, Singwan, Police Station Rampur. He is the first informant of the case. He has arrested the appellant and recovered the alleged country made pistol from his possession. 5. P.W. 2 is pairokar of P.S. Kotwali, district Jaunpur. P.W. 1 is S.I. Arvind Kumar Yadav, who was posted at Chowki Incharge, Singwan, Police Station Rampur. He is the first informant of the case. He has arrested the appellant and recovered the alleged country made pistol from his possession. 5. P.W. 2 is pairokar of P.S. Kotwali, district Jaunpur. He has given the secondary evidence in place of Constable Ashok Singh Yadav, who was the scribe of the check F.I.R. He has identified the hand writing and signatures of Constable Ashok Singh Yadav, who had prepared the check F.I.R. 6. P.W. 3 is retired Sub Inspector Mohd. Azmi who is the investigating officer of the case. 7. The learned trial judge found the statements of all the three prosecution witnesses reliable and trustworthy and accordingly convicted the appellant under Section 3/25 Arms Act by the impugned judgment. 8. The legality and correctness of the impugned judgment has been challenged in this appeal on the following grounds : 1. The prosecution has not produced any independent public witness of recovery of arm from the possession of the appellant. All the three witnesses are police personnel who are highly interested and partisan witnesses. 2. The attention of this has been drawn to the recovery memo (Ext. Ka. 1) on which the Case Crime No. 680 of 2014 under Section 3/25 Arms Act, P.S. Rampur, district Jaunpur is already mentioned. Learned counsel has contended that the number of case crime is normally registered at the time of registration of First Information Report and when at the time of preparation of recovery memo, the case crime number was not in existence, then how could it be possible for the first informant to mention the case crime number on the recovery memo prior to registration of case ? Learned counsel has further contended that from the aforesaid facts it is clearly evident that the entire prosecution story is false and concocted and the recovery is planted. 3. It has further been contended that the appellant was shown to be arrested by the police on 2.11.2014 on the basis of involvement in Case Crime No. 670 of 2014 under Section 307 I.P.C. and 3 (2) V of SC/ST Act. The aforesaid case has ended into acquittal of the appellant vide judgment dated 24.1.2018, copy whereof has been annexed as annexure - 7. The aforesaid case has ended into acquittal of the appellant vide judgment dated 24.1.2018, copy whereof has been annexed as annexure - 7. Learned counsel for the appellant has drawn the attention of this Court to the name of the Presiding Officer mentioned in the heading of aforesaid judgment and also in the end of the judgment to show that it was the same presiding officer who has disbelieved the prosecution story in the case under Section 307 I.P.C. and at the same time has believed the prosecution story under Section 3/25 Arms Act, in which the appellant was involved on the basis of the case under Section 307 I.P.C. 9. Learned counsel has contended that the aforesaid anomalous situation itself speaks about the illegality of the judgment impugned which is liable to be set aside and the appeal deserves to be allowed. 10. Per contra learned A.G.A. has vehemently opposed the appeal by contending that it does not make any difference if all the witnesses are policemen and as per the settled legal position, the entire prosecution case cannot be discarded only on the ground of all the witnesses are police personnel. Learned A.G.A. has contended that the appellant has failed to show any enmity between them and the policemen. He has not adduced any defence evidence, therefore, the Court below has rightly convicted him by the impugned judgment which does not require any interference by this Court. 11. Considered the rival submissions advanced by learned counsel for the parties. 12. A careful perusal of the statement of the witnesses and the documentary evidence available on record shows that only 3 witnesses have been produced by the prosecution in this case, out of which only one witness is of fact who has been examined as P.W. 1. The rest two witnesses are of formal character. Thus, the present case rests on the sole testimony. 13. As per settled legal position, the conviction can be made on the basis of a single testimony however before convicting a person on the basis of the single testimony, the Courts are required to closely scrutinise the trustworthiness of his statement. 14. A perusal of the statement of P.W. 1 S.I. Ashok Singh Yadav reveals that he has stated that on 2.11.2014 he was posted as Chowki Incharge, Singwan, Police Station Rampur. 14. A perusal of the statement of P.W. 1 S.I. Ashok Singh Yadav reveals that he has stated that on 2.11.2014 he was posted as Chowki Incharge, Singwan, Police Station Rampur. He received a secret information from an informer that the accused Muneer alias Goli, who was named accused in Case Crime No. 670 of 2014 under Section 307 I.P.C. and 3(2)V of SC/ST Act, was waiting for some vehicle at Sanjhi Chulha Dhaba and can be arrested, if prompt attempts are made. P.W. 1 alongwith 2 other policemen Con. Ravindra Nath Yadav and Con. Ram Asrey Yadav proceeded to arrest of the accused. When they reached near the spot, the informer pointed towards the appellant who was standing there and secretly left the place. The appellant was arrested at 5.30 p.m. and a country made pistol was recovered from his possession. On being enquired the appellant stated that it was the same country made pistol, with which he had fired on 28/29.10.2014 at 12.00 in the mid night with intention to kill Lalmani resident of Raghavram Patti. The appellant also informed that he has kept the weapon with him for self defence. A cash of Rs. 3085/- and two live cartridges were also recovered. (The country made pistol, two live cartridges and the cash of Rs. 3085/- were produced in Court during trial and were marked as material exhibits.) 15. The P.W. 1 has admitted that in the vicinity of Sanjha Chulha Dhaba, there are several shops and several trucks and vehicles use to stand on the road side, however, there is no public witness of the recovery. He has also admitted that a mobile phone was also recovered from the pocket of the appellant but he did not mention about it in the recovery memo. P.W. 1 has admitted that he did not give any information about the occurrence to C.O., Mariyahu. He has admitted that nothing has been mentioned in the recovery memo about the description torch in the light of which he had prepared the recovery memo. 16. The aforesaid statement of P.W. 1 reflects that the appellant was found roaming with the country pistol, kept in his pocket on 2.11.2014 and after his arrest the appellant confessed that it was the same country made pistol which which he had fired in the mid night of 28/29.10.2014. 17. 16. The aforesaid statement of P.W. 1 reflects that the appellant was found roaming with the country pistol, kept in his pocket on 2.11.2014 and after his arrest the appellant confessed that it was the same country made pistol which which he had fired in the mid night of 28/29.10.2014. 17. It is noteworthy that Case Crime No. 670 of 2014 under Section 307 I.P.C. and 3(2)V SC/ST Act was already registered against the appellant with reference to the incident of firing alleged to be made by him in the mid night of 28/29.10.2014 at the time when he was arrested in this case. Under the aforesaid circumstances and in preponderance of probabilities, it appears unnatural conduct on the part of a named accused against whom the investigation under Section 307 I.P.C. is pending that he would roam around at public places keeping with him the same fire-arm with live cartridges in his pocket. Moreover the case under Section 307 I.P.C. has been found doubtful by the same judge, who has convicted the appellant in the present case. Thus, the basis of the prosecution story becomes doubtful. The Hon’ble Supreme Court in Sumersingh Umedsinh Rajput @ Sumersinh v. State of Gujrat; 2008 (1) Crimes 57 (SC), has observed as under : “If the prosecution of attempt to murder by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail.” 18. It is also worth mentioning that the two constables namely Ravindra Kumar Yadav and Ram Ashrey Yadav who were accompanied P.W. 1 at the time of occurrence and P.W. 2, who has given the secondary evidence, have not stated the reason as to why the constable Ashok Singh Yadav, who has prepared the check F.I.R., has not been produced. 19. Considering the entire facts and circumstances of the present case, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The appeal deserves to be allowed. 20. It is worth mentioning that the appellant was arrested by the police on 2.11.2014. 19. Considering the entire facts and circumstances of the present case, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The appeal deserves to be allowed. 20. It is worth mentioning that the appellant was arrested by the police on 2.11.2014. He was not on bail during trial and he had to remain in jail for 3 years 2 months and 22 days on the date of his conviction in the present case, therefore, he was set free on the date of judgment on his depositing the entire amount of fine of Rs. 2000/- by the trial Court. Thus, the appellant has already undergone the entire sentence and has also deposited the fine. The appellant has already been released by the learned trial Court giving him the benefit of Section 428 Cr.P.C., therefore, no further order is required. 21. Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted of all the charges levelled against him. 22. Let the lower Court’s record be sent back to the lower Court alongwith a copy of this judgment.