State Of U.P. vs Jitendra Alias Chakuwa
2021 Latest Caselaw 9210 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 
Case :- GOVERNMENT APPEAL No. - 141 of 2019
 
Appellant :- State of U.P.
 
Respondent :- Jitendra Alias Chakuwa
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Mohd. Aslam,J.

(Per Hon'ble Mohd. Aslam, J.)

Heard Sri. A.K. Singh, learned Additional Government Advocate and perused the lower Court record and impugned judgement of the trial court.

Along with the memo of appeal, an application has been filed by learned A.G.A. on behalf of State of U.P. with prayer for grant of leave to appeal against the common judgment and order dated 5.1.2019 passed by Sri Anand Prakash, the then learned Additional Sessions Judge/Fast Track Court-I, Amroha in Sessions Trial No.124 of 2013 (State Vs. Jitendra @ Chakuwa) by which the accused-respondent was acquitted of offence punishable under Section 307 I.P.C. and in the connected Sessions Trial No.125 of 2013 (State Vs. Jitendra @ Chakuwa) of the offence punishable under Section 25 of Arms Act.

The prosecution story is that in the intervening night of 8/9.6.2003, complainant Manohar Singh- PW-4, the then Station House Officer along with police party had proceeded in search of the accused-person of Case Crime No.320, 321, 323/03 under Section 39/40 of Electricity Act and Section 353 I.P.C., relating to Police Station- Rajabpur. When the police party was approaching the village Tanda Poothi, they saw a person coming from the side of village of Sahvajpur and on suspicion the police party asked him to stop. Thereupon, he opened fire by country made pistol on the police party with intention to kill and had tried to flee away from there. The police party has luckily escaped and after using necessary force apprehended the accused-appellant at 3:30 a.m., and on inquiry he disclosed his name and address as accused-respondent and on search a country made pistol of 12 bore from his right hand and two live cartridges of 12 bore were recovered from his right pocket. On inspection of country made tamancha, an empty cartridge was also found in the barrel wherein fresh smell of the burnt gun powder was sensed. Thereupon, a country made pistol of 12 bore, two live cartridges and an empty cartridge in the barrel of the said pistol was taken in police custody and a recovery memo was prepared in the light of torch and in the presence of police witnesses and the copy of which was given to the accused-respondent. After investigation, charge-sheet was submitted and cognizance was taken by the Chief Judicial Magistrate, J.P. Nagar and after complying with the provision of Section 207 Cr.P.C., the case was committed to the court of sessions which was registered as Sessions Trial No.124 of 2013, Case Crime No.328 of 2003, under Section 307 I.P.C., P.S. Rajabpur, District Amroha and Sessions Trial No.125 of 2013, Case Crime No.329 of 2003 (State Vs. Jitendra @ Chakuwa), under Section 25 of Arms Act, P.S. Rajabpur, District Amroha against the accused-respondent and later on it was transferred to the court of Fast Track. The charges under Sections 307 I.P.C. and 25 of Arms Act were framed against the accused-respondent wherein the accused-respondent has not pleaded guilty. These sessions trial were tried jointly. In order to prove its case, the prosecution has examined Ct. Karan Singh as PW-1, Ct. Jwala Prasad Mishra as PW-2, PW-4 Complainant Manohar Singh as witnesses of the fact and H.C.P. Heera Singh (Retd.) as PW-3 to prove chik report and entries of G.D. and I.O./S.I. Netra Pal Singh (Retd.) as PW-5 as formal witnesses.

The learned trial court has acquitted the accused-respondent holding that the prosecution has failed to prove the case beyond reasonable doubt as such the accused-respondent is entitled for acquittal.

It is contended by learned A.G.A. that prosecution witnesses have proved beyond reasonable doubt that the accused-respondent had fired shot on police party from country made pistol with intention to kill them and accused was arrested near the place of occurrence by the police party after chase, and a country made pistol from his right hand and two live cartridges from the pocket of accused-respondent were recovered as well as one empty cartridge from the barrel of the said country made pistol. It is further contended that these facts were proved by deposition of PW-1 Ct. Karan Singh, PW-2 S.I. Jwala Prasad Mishra (Retd.) and PW-4 Complainant Manohar Singh. It is also contended by learned A.G.A. that learned trial court has passed the impugned judgment and order of acquittal only on the basis of extraneous consideration of the evidence, which is not borne out from the evidence on record. It is vehemently contended that learned court below has committed gross error in disbelieving the testimonies of the witnesses of prosecution and given importance to the version of the defence, and on these counts, the judgment and order of the acquittal of accused-respondent is wholly illegal and not sustainable in the eye of law and the same is liable to be set aside and accused-respondent is liable to be convicted for offence punishable under Section 307 I.P.C. and 25 of Arms Act.

On above ground, learned A.G.A. has prayed for grant of leave to file the instant Government Appeal against the judgment and order of acquittal of the accused-respondent.

Upon hearing learned A.G.A. and perusal of record, we find that the G.D. entries of the rawanagi from the police station was not proved by prosecution. It is also found from the perusal of depositions of witnesses PW1 Ct. Karan Singh, PW-2 S.I. Jwala Prasad Mishra and PW-4 Manohar Singh, the then S.H.O. that in this incident no injury was sustained by the police party. There is overwriting at five places on the recovery memo. PW-1 Ct. Karan Singh deposed that there is highway near the place of occurrence and several vehicles were passing from there. He further deposed that he could not remember the name of person in the police party who carried out search of police persons to ensure that there is no incriminating article in their possession. He further deposed that he could not remember the police personnel of the party who had apprehended the accused-respondent and conducted search upon him. He further deposed that he could not remember the distance in paces from where the police party had seen the accused-respondent while he was coming from village Sahvajpur. He further deposed that the accused-respondent was apprehended on the highway towards north direction, but the site plan shows that he was coming from north to south direction on the highway. Therefore, it was irreconcilable that he was arrested towards the north side of the highway because at the place of incident the highway is running from north to south. He further deposed that no money, bidi and matches were recovered from the accused-respondent at the time of arrest. PW-2 S.I. Jwala Prasad Mishra in cross-examination has deposed that accused was arrested on a public highway, from where vehicles and public were passing. He further deposed that no money, bidi and matches were recovered from the accused-respondent at the time of arrest. PW-4 Manohar Singh, the then S.H.O. in the deposition has admitted that no member of the police party sustained injury in this occurrence. He further deposed in cross-examination that no independent public witnesses were available at that time, which is inconsistent with the deposition of PW-1 Ct. Karan Singh, who has stated that vehicles and general public were passing from the highway at the time of incident. From the scrutiny of depositions of the witnesses as mentioned above, it transpires that accused-respondent was allegedly arrested on a public highway from where several persons and vehicles were passing. Neither any member of public was made witness in the recovery memo nor examined. It also transpires from the depositions of witnesses that no money, bidi and matches were recovered from the accused-respondent at the time of arrest. This circumstance indicates that arrest and recovery from the accused-respondent is improbable because if anybody is arrested in night, something apart from arm and ammunition must also have been recovered. In above circumstances, the testimonies of the witnesses PW-1 Ct. Karan Singh, PW-2 S.I. Jwala Prasad Mishra, PW-4 Manohar Singh, the then S.H.O. cannot be safely relied upon. The prosecution case on the point of firing on police party and recovery of country made pistol and cartridges from accused-respondent is not proved beyond reasonable doubt.

In above circumstances, we are of the view that learned court below has rightly held that firing of shot by the accused-respondent on the police party from country made tamancha with intention to kill and recovery of country made pistol and cartridges is not proved beyond reasonable doubt and learned court below has rightly acquitted the accused-respondent, therefore, no interference is required in this appeal and the application for leave to appeal is hereby refused and hence rejected, and the appeal is accordingly dismissed.

Order Date:- 2.8.2021

Anil K. Sharma

(Mohd. Aslam, J.) (Manoj Kumar Gupta, J.)