Karan Vir vs State Of U.P.
2018 Latest Caselaw 820 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 3015 of 2001
 
Appellant :- Karan Vir
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Surendra Tewari,Abhitab Kumar Tiwari
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Krishna Singh,J.

The instant criminal appeal has been preferred on behalf of the accused-appellant Karan Vir s/o Late Sensarpal r/o Village Mainaputhi, P.S. Saroorpur, District Meerut against the impugned judgment and order dated 24.7.2001 passed by the trial court/Special Judge (Anti Corruption) Meerut in Sessions Trial No.463 of 2000 (State vs. Karan Vir), under Section 25 of Arms Act whereby the accused-appellant has been convicted and sentenced for the period of imprisonment (about one year and half month) already undergone.

Facts necessary for disposal of the instant appeal are that the accused-appellant was prosecuted for the offence punishable under Section 302 & 504 of IPC in Sessions Trial No.464 of 2000 (State vs. Karan Vir) and for the offence punishable under Section 25 of Arms Act in connected Sessions Trial No.463 of 2000 (State vs. Karan Vir) on the allegations that on 2.1.2000, at about 2 p.m. in the jungle of village Mainapoothi, accused-appellant fired a country made pistol on deceased Vipin Kumar. During the course of investigation of case crime no.3 of 2000, under Sections 302 & 504 of IPC, accused-appellant surrendered before the court concerned. Investigating Officer of the aforesaid case crime S.O. Rajesh Kumar Singh (PW-7) with the permission of the court concerned on 17.1.2000, went to the District Jail Meerut and interrogated the accused-appellant. Thereafter, on 23.1.2000, at about 8:15 a.m. during the course of police custody remand one country made pistol (Ext.1) and one cartridge of 315 bore (Ext.2) were recovered by the Investigating Officer on the pointing out of the accused-appellant from the sugarcane field of Ramveer under fard (Ext.Ka-6). The prosecution failed to connect the accused-appellant with the murder of Vipin Kumar. Hence, learned trial court acquitted him of the offence punishable under Section 302 & 504 of IPC but held guilty for the offence punishable under Section 25 of Arms Act, and sentenced him as mentioned above.

Both Sessions Trial were decided by the trial court by a common judgment and order dated 24.7.2001.

On the basis of fard (Ext.ka 6), police registered a Case Crime No.6 of 2000, under Section 25 of Arms Act against the accused-appellant. After registration of the aforesaid case, S.I. Shiv Sahai, the Investigating Officer swung into action and recorded the statement of S.O. Rajesh Kumar Singh PW-7 (Investigating Officer of Case Crime No.3 of 2000, under Section 302 & 504 of IPC) along with other witnesses. After completing the necessary formalities, S.I. Shiv Sahai, Investigating Officer submitted charge sheet against the accused-appellant under Section 25 of Arms Act.

Both cases were committed by the Chief Judicial Magistrate, Meerut to the court of sessions for trial.

The trial court after hearing the prosecution as well as the defence and perusing the material available on record, framed charges against the accused-appellant under Sections 302, 504 of IPC and Section 25 of Arms Act. The charges were read over and explained to the accused-appellant. He abjured the guilt and claimed to be tried. Hence, the prosecution was called upon to led the evidence.

In order to prove the guilt of the accused-appellant, prosecution had examined PW-1 Kavinder Kumar, PW2 Deepak Kumar, PW-3 Vikas, PW-4 Ashish Kumar, PW-5 Puneet, PW-6 Virendra, PW-7 S.O. Rajesh Kumar Singh, PW-8 Dr. D.C. Jain and PW-9 Head Constable Shahid Ali.

After conclusion of prosecution evidence, the accused-appellant was examined under Section 313 of Cr.P.C. In his statement, he pleaded not guilty and denied his participation in the alleged crime. He has also stated that statement of the prosecution witnesses are false and he has been falsely implicated in the present case due to enmity.

I have heard Mr. Abhitab Kumar Tiwari, learned counsel appearing on behalf of the appellant, Sri Tarkeshwar Yadav, AGA appearing on behalf of the State and perused the material available on record.

Learned counsel for the accused-appellant has contended that the impugned judgment and order passed by the trial court is per se illegal and against the weight of evidence on record. Learned counsel next contended that accused-appellant is innocent and has been falsely implicated in the present case by S.O. Rajesh Kumar (PW-7) Investigating Officer of Case Crime No.3/2000, under Sections 302 & 504 of IPC and alleged recovery of one country made pistol & one cartridge of 315 bore on the pointing out of the accused-applicant is false and fabricated. Learned counsel next contended that there is no reliable evidence against the accused-appellant except the evidence of S.O. Rajesh Kumar Singh (PW-7) who allegedly recovered the country made pistol Ext.1 and one cartridge Ext.2 of 315 bore on the pointing out of the accused-appellant. Learned counsel next contended that the prosecution had not produced any independent/public witness to support the prosecution case and neither the said country made pistol and the cartridge were sent by the prosecution for examination by Forensic Science Laboratory nor there is any other evidence to prove that the said country made pistol and the cartridge were in working condition or cartridge was alive, therefore, conviction of the accused-appellant cannot be sustained. Learned counsel lastly contended that the prosecution has substantially failed to prove its case beyond all reasonable doubt against the accused-appellant, therefore, the appeal filed on behalf of the appellant-accused against the impugned judgment and order enduring on justifiable grounds deserves to be allowed.

Per contra, Sri Tarkeshwar Yadav, AGA appearing on behalf of the State has contended that from the prosecution evidence available on record, the case of prosecution stands proved beyond all reasonable doubt against the accused-appellant. The impugned judgment and order passed by the trial court is based upon the proper appreciation of evidence on record. The findings recorded by the trial court does not suffer from any legal procedural or factual infirmity and vulnerability.

Since this is a regular appeal, I have gone through the evidence of S.O. Rajesh Kumar Singh (PW-7) and the impugned judgment and order passed by the trial court. It is not in dispute that the prosecution failed to connect the accused-appellant with the murder of deceased Vipin Kumar. Hence, the learned trial court acquitted the accused-appellant of the offence punishable under Sections 302, 504 of IPC.

It is evident from record that prosecution has examined only S.O. Rajesh Kumar Singh (PW-7) to prove the alleged recovery of one country made pistol (Ext.1) and one cartridge of 315 bore (Ext.2) on the pointing out of the accused-appellant. No independent/public witness of alleged recovery has been examined by the prosecution to corroborate the testimony of PW-7. There are material contradictions in the statement of S.O. Rajesh Kumar Singh (PW-7) which goes to the root of the case and affect materially the case of the prosecution.

In view of the above, I am of the considered view that it is unsafe to convict the accused-appellant on the basis of uncorroborated evidence pertaining to the alleged recovery of the weapon and the cartridge at the instance of the accused-appellant.

In the case of Jaspal Singh vs. State of Punjab (1998) 7 SCC 289, the Hon'ble Apex Court has held that mere possession of a gun and some cartridge without any evidence to show that the gun was in a working condition and that the cartridge were alive could not sustain the conviction of the accused-appellant under Section 25 of Arms Act.

In the case of State of Punjab vs. Jagga Singh AIR 1998 Supreme Court 3113, the Hon'ble Apex Court has held that accused-appellant was found in possession of unlawful arms and cartridges which were not sent for examination by the Central Forensic Science Laboratory. There is no other evidence to prove that the said arms was in a working condition and that the cartridges were alive, therefore, in the absence of any evidence to show that the arms was in working condition and cartridges were alive, the accused-appellant cannot be convicted.

S.O. Rajesh Kumar Singh (PW-7) has admitted in his statement on oath that one country made pistol (Ext.1) and one cartridges of 315 bore (Ext.2) recovered on the pointing out of the accused-appellant were not sent for examination by the Forensic Science Laboratory. There is no iota of evidence to give finding that the country made pistol (Ext.1) and cartridge (Ext.2) allegedly recovered on the pointing out of the accused-appellant was in working condition or that the cartridge was alive. There is no evidence of an expert or the armourer to show that the country made pistol was in working condition or the cartridge were alive. Therefore, in absence of evidence that the country made pistol (Ext.1) was in working condition and cartridge (Ext.2) were alive, the conviction of the accused-appellant for the offence punishable under Section 25 of the Arms Act, cannot be sustained.

The most glaring feature of this case is that the investigation in this case has not been fair and impartial. At the time of alleged incident of recovery, S.O. Rajesh Kumar Singh (PW-7) Investigating Officer of Case Crime No.3/2000 u/s 302, 504 of IPC was the Senior-most police officer at the Police Station Saroorpur posted as S.O. It is evident from the record that on the basis of complaint/fard (Ext.ka-6) made by S.O. Rajesh Kumar Singh (PW-7), FIR of Case Crime No.6/2000, u/s 25 of Arms Act was registered at Police Station Saroorpur against the accused-appellant. S.I. Shiv Sahai was subordinate to S.O. Rajesh Kumar (PW-7). It was under the direction of S.O. Rajesh Kumar Singh(PW-7) that investigation of this case was entrusted to S.I. Shiv Sahai. It is difficult to believe that a subordinate officer like S.I. Shiv Sahai would do justice to this case. Being subordinate to S.O. Rajesh Kumar Singh (PW-7), he was not in a position to coming to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. The prosecution version appears to be doubtful and full of contradictions.

In view of the above, I have no hesitation in holding that the prosecution failed to prove the case against the accused-appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt.

Thus, the appeal succeeds and is allowed. The conviction and sentence imposed on the accused-appellant are set aside and the accused-appellant is acquitted of charge levied against him under Section 25 of Arms Act. He is on bail, his personal and bail bonds are cancelled and sureties are discharged.

Let a copy of the judgment alongwith the lower court record be immediately sent to the court below for compliance and necessary entries in the relevant register.

(Krishna Singh, J.)

Order Date: 23.5.2018.

Rishabh