HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.01.2021 Delivered on 01.03.2021 Case :- CRIMINAL APPEAL No. - 5879 of 2018 Appellant :- Tawarak Respondent :- State of U.P. Counsel for Appellant :- Ravindra Pal Singh Kashyap,Saurabh Yadav,Sudhir Kumar Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Heard Sri Saurabh Yadav, learned Counsel for the appellant and Sri Vikas Goswami, learned AGA for the State.
This criminal appeal is directed against the judgment and order dated 26.9.2018 passed by 5th Additional District and Sessions Judge/(Gangster Act), Badaun, in Special Sessions Trial No. 95 of 1999 (State Vs. Naushey and others), arising out Case Crime No. 321 of 1998, convicting and sentencing the appellant to five years rigorous imprisonment and Rs.5000/- as fine on failure to deposit fine to undergo three months additional imprisonment under Sections 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 ("Gangsters Act" in short).
The prosecution case is that informant, Brijraj Singh Gaud, lodged an FIR on 9.10.1998 at 21:30 hours at Police Station Dataganj, District Badaun, stating that informant alongwith constable, Ram Prakash, were conducting search of accused and when they reached village, Nauni Tikanna, they were informed that co-accused, Naushey, s/o Lallu Khan, appellant and co-accused, Iqrar s/o Anwar Khan, have formed a gang, which is headed by co-accused, Naushey. They have created fear and terror and earned money by committing the offence of loot, kidnapping, attempt to murder, etc. The gang is committing offence under Chapter XVI, XVII and XXIII IPC and earning illegal money. On 13.1.1996 the leader of the gang, Naushey and his gang members, Iqrar and others forcibly abducted one, Sriniwas and Case Crime No. 17 of 1996, under Section 364 IPC was registered against them. On 04.12.1996 they injured one, Bhoora, s/o Faqira and Case Crime No. 452 of 1996, under Section 307 IPC and 3(1)(X) SC/ST Act was registered against them. On 16.5.1998 they fired at the police party with intention to kill and Case Crime No. 157 of 1998, under Section 307 IPC was registered. On 24.8.1998 they abducted one, Manpal, of their village and murdered him and Case Crime No. 193 of 1998, under Section 364, 302 IPC and 3(2)(v) SC/ST Act was registered against them. The members of gang have committed separate crimes under IPC also. Hence the offence under Section 2/3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 is made out against the leader and gang members of the gang.
FIR was registered as Case Crime No. 321 of 1998, under Section 2/3 Gangster Act and the accused persons were charge-sheeted after due investigation.
The trial court framed charges against the accused persons under Section 2/3 Gangsters Act. The accused persons denied the charges and sought trial.
One of the co-accused, namely, Chottan, died on 09.5.2007 and only the appellant, Tawarak, and co-accused, Naushey were tried.
PW-1, Mahendra, s/o Mishri, stated in his evidence that about 18 years ago, five armed miscreants entered into his house at about 8:00 p.m. in the night armed with gun and country made pistols. They caused gun shot injury to Brijpal and looted Rs.15,000/-. He had not named the appellant or any gang leader in the FIR. The names of Ibrahim and Jaheer were mentioned in the FIR, but he does not knows how it was mentioned.
PW-2, Ramdeen, stated that on 28.4.1998 when his nephew, Mahan Pal, had gone to graze the buffalo, Naushey, Chottan, Akkoo and Iqrar, who belong to his village and have old enmity, tried to kidnap his nephew and when he got the information, he chased them and asked them to leave him. The miscreants opened fire on his nephew and he died. He lodged the FIR against them.
PW-3, Brijraj Singh, S.S.I., Police Station Dataganj, District Badaun, proved the implication of the appellant and other accused persons in this case and the gang chart prepared by him. He also proved the other documents of investigation.
PW-4, Dataram, proved that on 13.1.1996 at 6-7:00 p.m. when he was coming from Dataganj to village Simri Bora, Sriniwas was abducted. On the next date, when his nephew, Advocate, asked whether Sriniwas has reached the house, he started his search. Thereafter he lodged the FIR. The kidnappers demanded Rs.2.5 lacs from him and thereafter, his son was released after 12 days. He named Naushey Khan, Iqrar and appellant, Tawarak Ali and as an accused, Mangu was also named by him, who is relative of co-accused, Iqrar. He further submitted that in this case all the accused persons were sentenced to 10 years rigorous imprisonment and Rs.10,000/- fine each.
PW-5, Sriniwas, proved that he was abductee by the Naushey, Iqrar and Tawarak on the threat given by country-made pistol. He was abducted on 13.1.1996 and released from their custody on 25.1.1996. He proved that the accused persons including the appellant were convicted and sentenced for 10 years alongwith fine of Rs.10,000/- each.
PW-6, Moveenuddin, the then Inspector-in-charge, Police Station Dataganj, District Badaun, proved that in the present case he conducted investigation and recorded the statement of the witnesses and submitted charge-sheet before the court.
Prosecution filed the judgment of S.T. No. 832 of 1998 dated 15.02.2007 of Additional Session Judge/Fast Track Court No.3, Badaun.
Statement of accused persons were recorded under Section 313 Cr.P.C., wherein they stated that they have been implicated on account of political enmity. They are innocent and may be acquitted.
The defence filed the judgment of Special S.T. No. 49 of 2012, under Section 307 IPC and Section 3(1)(X) SC/ST Act given by Additional Sessions Judge/Special Judge/Sc/ST Act, Badaun, dated 06.4.2017, wherein the accused persons were acquitted.
Learned counsel for the appellant has submitted that appellant was involved in three following cases:-
1. Case Crime No. 17 of 1996, under Section 364 IPC, Police Station Dataganj, District Badaun.
2. Case Crime No. 452 of 1996, under Section 307 IPC and 3(1)(X) SC/ST, Police Station Dataganj, District Badaun.
3. Case Crime No. 157 of 1998, under Section 307 IPC, Police Station Dataganj, District Badaun.
He has submitted that appellant has been acquitted in Case Crime No. 452 of 1996, under Section 307 IPC and 3(1)(X) SC/ST on 6.4.2017. In Case Crime No. 17 of 1996, he is on bail in Criminal Appeal No. 521 of 2007.
He has submitted that appellant has been falsely implicated in Case Crime No. 17 of 1996 since no ransom was paid and the victim reached his house safely. FIR was lodged on the basis of false allegations. No harm was caused to Sriniwas, who was allegedly abducted.
Learned AGA has opposed the prayer made on behalf of the appellant and has submitted that appellant has rightly been convicted for offence under Section 2/3 Gangster Act. He has been punished him in two cases out of four cases and therefore, judgment of the court below does not deserves to be interfered.
After considering the rival submissions this Court feels it appropriate to consider the relevant legal provisions:-
"2.(b) "Gang" 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 public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely-
(i) offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or
(ii) distilling or manufacturing or .storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 (U.P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or
(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or
(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or
(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956), or
(vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or
(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or
(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or
(ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or
(x) inciting others to resort to violence to disturb communal harmony, or
(xi) creating panic, alarm or terror in public, or
(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or
(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or
(xiv) kidnapping or abducting any person with intent to extort ransom, or
(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;
[(xvi) offences punishable under the Regulation of Money Lending Act, 1976;
(xvii) illegally transporting and/or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960;
(xviii) human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities.
(xix) offences punishable under the Unlawful Activities (Prevention) Act, 1966:
(xx) printing, transporting and circulating of fake Indian currency notes;
(xxi) involving in production, sale and distribution of spurious drugs;
(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention of Sections 5, 7 and 12 of the Arms Act, 1959;
(xxiii) felling or killing for economic gains, smuggling of products in contravention of the Indian Forest Act, 1927 and Wildlife Protection Act, 1972;
(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;
(xvv) indulging in crimes that impact security of State, public order and even tempo of life.
2.(c) "gangster" 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;
3. Penalty. - (1) A gangster, shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:
Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees.
(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any Court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine.
4. Special Rules of Evidence. - Notwithstanding anything to the contrary contained in the Code or the Indian Evidence Act, 1872, for the purposes of trial and punishment for offences under this Act or connected offences;
(a) the Court may take into consideration the fact that the accused was-
(i) on any previous occasion bound down under Section 107 or Section 108 or Section 109 or Section 110 of the Code, or
(ii) detained under any law relating to preventive detention, or
(iii) externed under the Uttar Pradesh Control of Goondas Act, 1970 (Act No. 8 of 1971), or any other such law;
(b) where it is proved that a gangster or any person on his behalf is or has at any time been, in possession of movable or immovable property which he cannot satisfactorily account for, or where his pecuniary resources are disproportionate to his known sources of income, the Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his activities as a gangster;
(c) where it is proved that the accused has kidnapped or abducted any person, the Court shall, presume that it was for ransom;
(d) where it is proved that a gangster has wrongfully concealed or confined a kidnapped or abducted person, the Court shall presume that the gangster knew that such person was kidnapped or abducted, as the case may be;
(e) the Court may, if for reasons to be recorded it thinks fit so to do, proceed with the trial in the absence of the accused and record the evidence of any witness, provided that the witness may be recalled for cross-examination if the accused so desires but recording his examination in chief afresh in presence of the accused shall not be necessary.
A perusal of the definition of gang in the Act shows that where a group of persons acting either signally or collectively are found to be involved in the offences mentioned under the Section, they are considered to be part of a gang and such members have been defined as gangsters. Under Section 3 of the Act, punishment of not less than two years has been provided, which may extend to 10 years also with fine, which shall be less than Rs.5000/-. In under Section 4 of the Act, there are special rule of evidence regarding the cases under the Gangsters Act and in Sub Clause (c) it has been provided that where accused person has kidnapped and abducted any person, the court shall presume that it was for ransom. In Sub Clause (d), it is provided that where confinement of an abductee is proved, the court shall presume that gangster knew that such person was kidnapped or abducted.
The argument of learned counsel for the appellant that no ransom was paid in Case Crime No. 17 of 1996, under Section 364 IPC since the abductee, Sriniwas, came back to his house after 12 days, is not tenable since where a person was abducted, there is presumption in the Act under Section 4(c) that the alleged abduction/kidnapping was for demand of a ransom.
The implication of the appellant in Case Crime No. 17 of 1996, has been found to be correct, wherein he has been convicted. Therefore, it cannot be said that appellant has been falsely implicated.
Learned counsel for the appellant has submitted that appellant is in jail since 26.9.2018. He has been acquitted in Case Crime No. 452 of 1996 and in the third Case Crime No. 157 of 1998 he has not been convicted as yet. It was a case lodged by the police and no one suffered injury. Punishment of five years given under Section 3 of the Act has been awarded to him. His conviction may be confirmed, but sentence may be reduced to the period already gone in jail. He has further submitted that appellant is very poor and there is no one to look after in his family. Cases wherein appellant has been implicated, are quite old. The age of the appellant is about 58 years and hence a lenient view may be taken.
After considering the entire facts and circumstances of the case, this Court is of the view that conviction of the appellant does not calls for any interference. However, the sentence awarded to him is reduced to period of conviction already undergone from 5 years awarded by the court below, without any interference with fine and default clause.
The appeal is partly allowed.
The record of this case alongwith a copy of this order be sent back to the court below for necessary follow-up action within two weeks.
Order Date :- 01.03.2021 Ruchi Agrahari