Mohd. Rafiq vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 42
 

 

 

 
Case :- CRIMINAL APPEAL No. - 630 of 1991
 
Appellant :- Mohd. Rafiq
 
Respondent :- State
 
Counsel for Appellant :- K.D. Tewari
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal challenge has been made to the validity and sustainability of the judgment and order of conviction dated 15.3.1991 passed by the Special Judge (DAA)/IIIrd Additional Sessions Judge, Banda in Special Trial No.109 of 1987 (State vs. Mohammad Rafiq), under Sections-392, 411 IPC, P.S. Karvi, District-Banda, arising out of Case Crime No. 137 of 1987, whereby the appellant has been sentenced to three years rigorous imprisonment under Section-392 IPC and one year rigorous imprisonment under Section-411 IPC.

Heard Sri S.M. Khan, learned counsel for the appellant as well as Sri Om Narain Tripathi, learned AGA for the State and perused the record of this appeal.

Facts relevant for adjudication of this appeal as reflected from record appear to be that an F.I.R. was lodged by the Informant PW-1 Shiv Kumar Singh s/o Ramadheen Singh of Village-Parsaunda, P.S. Pahari, District-Banda on 15.4.1987 at Police Station-Karvi at 7:15 p.m. at Case Crime No.137 of 1987 under Section-392 IPC regarding the incident of loot of his licensed rifle no.18770 by the accused Mohammad Rafiq s/o Babu Khan r/o Old Bazar, Karvi, District-Banda with allegations that it was around 6:00 p.m. on 15.4.1987, the informant had come to the shop of Shiv Kumar Bilauha s/o Sarju Prasad for sale of his grains and after weighing his grain he was resting on a sack with his licensed rifle-7 m.m. no.18770, then the accused who came from the eastern side, suddely snatched away his rifle and sped away towards the southern side. He was caught after little chase by the Informant and Shiv Kumar Bilauha s/o Sarju Prasad and one Umadatt s/o Jageshwar, Shiv Pratap @ Pandey s/o Shyam Sundar along with the looted rifle. He was taken to the police station Karvi and report was lodged. This report-Exhibit Ka-1-was lodged at Check FIR Exhibit Ka-2 at aforesaid crime number on aforesaid date at aforesaid time at police station-Karvi. The relevant entry was also noted in the concerned G.D. and a case was registered against the accused. The investigation took place and the same was conducted by one R.P. Singh, who recorded the statement of various witnesses and after visiting the spot prepared the spot map Exhibit Ka-4 and after completing the investigation filed charge-sheet, Exhibit Ka-5. Relevant to mention that in this case, the Investigating Officer was not produced by the prosecution, therefore, the investigation has been proved by producing Usman Khan PW-5. Consequently, the commital proceeding took place and the accused was charged by the trial court under Sections-392, 411 IPC. Charges were read over and explained to the accused, who denied the charges and claimed to be tried.

In turn, the prosecution produced in all five witnesses. A brief sketch of the same is as here under:-

Shiv Kumar Singh PW-1 is the informant of this case. Shiv Kumar Bilauha PW-2, who has corroborated testimony of PW-1 has supported the claim raised by PW-1. Shiv Pratap PW-3 is also a witness of fact, who happened to be one of the eye-witnesses. Constable, Lala Ram PW-4 has proved lodging of the FIR at the Police Station Karvi on 15.4.1987 and has also proved the concerned Check FIR and the concerned G.D. entry.

Thereafter, the trial court recorded the statement of the accused under Section-313 Cr.P.C., wherein he has claimed to have been falsely implicated on account of enmity and claimed that he had also gone to take grain at the shop of Shiv Kumar Bilauha where some altercation took place due to which the Informant in collusion with the police had falsely implicated him in this case. The defense did not lead any evidence. The trial court after considering the case on merit and evaluation of the testimony recorded finding of conviction and passed aforesaid sentence.

Resultantly this appeal.

It has been vehemently urged on behalf of the appellant that in this case the entire incident is false. No such incidence ever took place. The fact is that the appellant was deliberately roped in, in this case. The testimony and the circumstances of the case are suggestive of innocence of the accused. The Investigating Officer was not produced which particular aspect vitiates the entire prosecution case. Testimony of the witnesses of fact PW-1, PW-2 and PW-3 does not inspire confidence. The trial court was not cautious of all these aspects and erroneously recorded finding of conviction.

Learned A.G.A. has refuted the aforesaid submissions by claiming that the testimony of the witnesses inspire confidence. The incident has been proved beyond all reasonable doubt, which cannot be doubted merely because the Investigating Officer was not produced and that alone would not render the case not believable .

In the wake of aforesaid submission, the moot point that crops up for determination of this appeal relates to fact whether the prosecution has been able to prove charge under Sections-392, 411 I.P.C. beyond all reasonable doubt?

It is gathered from perusal of the contents of written report Exhibit Ka-1 that the accused Rafiq s/o Babu Khan snatched away rifle of Informant Shiv Kumar Singh on 15.4.1987. Shiv Kumar Singh had come for sale of his grain at the shop of Shiv Kumar Bilauha s/o Sarju Prasad and was sitting on a sack after selling his grain around 6.00 p.m. He was also possessing his licensed rifle-7 m.m. no.18770 in his right hand. All of a sudden, a boy came from the eastern side and snachted away Informant's rifle and sped away towards southern side. On alarm being raised, Shiv Kumar Bilauha s/o Sarju Prasad, the shopkeeper and the persons present over there, Uma Datt s/o Jageshwar, Shiv Pratap @ Pandey s/o Shyam Sundar chased him up to 100 to 150 paces surrounded and caught him on the spot. On being asked, he disclosed his name Mohammad Rafiq s/o Babu Khan r/o Old Bazar, Karvi. The accused was taken to the police station along with the looted rifle and report was lodged at about 7:15 p.m.

In the backdrop of aforesaid allegations, the testimony of prosecution witnesses of fact is to be scrutinized vis-a-vis attendant facts and circumstances, then the testimony of the Informant Shiv Kumar Singh is discovered to be in consonance with the description of the incident narrated in the first information report. He has testified to the magnitude that the incident took place around 6:00 p.m., it was evening, he was sitting with his rifle no. 18770 at the shop of Shiv Kumar Bilauha on a sack. When the accused, who was not known to the informant snatched away in a flash his rifle and fled away towards the southern side when he was chased, surrounded and caught at a short pace by several persons including the informant and others. The rifle was recovered from his possession and he along with others was taken to the police station-Karvi. He has been cross-examined at length by the defense, wherein he has confirmed to the above facts narrated in the first information report. His presence on the spot is natural and cannot be doubted. Admittedly, there was no enmity between the accused and the informant. After strenuous cross-examination nothing adverse has surfaced so as to put any question mark on the veracity of the version of the informant regarding the incident. More or less, similar is the testimony of Shiv Kumar Bilauha PW-2, who has corroborated testimony of PW-1 and has supported the claim raised by PW-1. He has been cross-examined by the defense wherein also the incident has been innocuously described. Likewise, Shiv Pratap PW-3 is also a witness of fact, who happened to be one of the eye-witnesses of fact that alarm was raised and he saw that a person was running away with a rifle and that person was the accused, who was present in the Court and this witness identified accused Rafiq in the trial court itself. He has stated that he also chased the accused and the accused was caught by all the persons present over there. He has also counted several reasons for his presence on the spot. He is resident of neighbouring village where the incident took place. Constable, Lala Ram PW-4 has proved lodging of the FIR at the Police Station Karvi on 15.4.1987 and has proved the concerned entry made in the Check FIR and the concerned G.D. whereby case was registered against the accused as Exhibit Ka-2 and Exhibit Ka-3, respectively. In this case, contention has been raised to the extent that the Investigating Officer has not been produced, however, the ambit of investigation of this case has been proved very much by Constable Usman Khan and he has proved the various papers prepared during the course of investigation and the relevant entries made by the Investigating Officer, Sri R.P. Singh. He has proved specifically site plan, Exhibit Ka-4 and the filing of the charge-sheet, Exhibit Ka-5 in the case. He has been cross examined at length, nothing adverse has surfaced which may reflect on faulty or unfair investigation. Therefore, contention raised to the extent that the Investigating Officer has not been produced before the trial court would not by itself be a ground to over throw the case of the prosecution.

The consistency of the prosecution witnesses of fact particularly Shiv Kumar Singh PW-1 and Shiv Kumar Bilauha PW-2 and Shiv Pratap PW-3 is clinching, consistent and worthy of credit. Their testimony when read conjointly and as a whole is fair enough to prove fact that the appellant Mohammad Rafiq committed the crime on 15.4.1987 around 6:00 p.m. by snatching away licensed rifle no.18770 of the Informant Shiv Kumar Singh s/o Sri Ramadheen Singh at the shop of Shiv Ram Bilauha s/o Sarju Prasad and was caught by the informant and others after a little chase near Karvi Bus Stand along with the aforesaid licensed gun. Consequently, the charges under Sections-392 and 411 I.P.C. stood proved beyond all reasonable doubt. Whatever contradictions appear in their testimony cannot be said to be material, but they are trivial and don't hit at the core of the prosecution story that the offence of snatching away of the rifle was infact committed by the appellant on the aforesaid date and time.

The trial court rightly convicted the accused for the charges under Sections-392, 411 I.P.C. and justifiably awarded sentence of three years rigorous imprisonment under Section-392 IPC and one year rigorous imprisonment under Section-411 IPC which judgment and order of conviction dated 15.3.1991 is hereby affirmed.

Consequently, this appeal lacks merit and the same is dismissed.

In this case the appellant is on bail. He be taken into custody and he will serve out the sentence awarded against him by the trial court.

A copy of this order be certified to the court concerned for information and necessary follow up action.

Order Date :- 8.8.2018

S Rawat