Raja Ram Verma vs State Of U.P.
2023 Latest Caselaw 2141 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 

 
(Lucknow)
 
***
 
RESERVED ON 30.8.2022
 
						  DELIVERED ON 20.1.2023
 

 
Criminal Appeal No. 2716 of 2004
 

 
Raja Ram Verma		                                 ...Appellant
 
	
 
	Through: Sri Parveen Kumar holding brief of Sri R.N. 			      Yadav, Counsel for the appellant
 

 
vs.
 
State of U.P. 	       			                   ...Opposite party
 
	
 
	Through: Additional Government Advocate
 

 
ORDER

HON'BLE NARENDRA KUMAR JOHARI, J.

1. Present criminal appeal has been filed by the accused-appellant Raja Ram Verma under Section 374 Cr.P.C. against judgment of conviction and order of sentence dated 20.11.2004 passed by learned Additional Sessions Judge, Barabanki in S.T. No.133 of 2004, under Section 25 of Arms Act, Police Station Jaidpur, District Barabanki. By the impugned judgment and order, the appellant was convicted by learned trial court and sentenced to undergo for 03 years Rigorous Imprisonment for the offence under Section 25 of Arms Act along with a fine of Rs. 1,000/- and further two months rigorous imprisonment in default of payment of fine.

2. Brief facts of the case are that on 30.12.2003 when the S.H.O., Jaidpur along with Sub Inspector, Head Constable and Constables Kamlesh Rai, Rajesh Rai, Akhilesh Singh and Rambharat Upadhaya reached at Harakh Crossing at about 1:30 PM by police jeep driven by driver Satya Narayan Chaubey, the accused was coming from the side of Barabanki by his Motorcycle No. UP32 AD 3710. The police parties given him indication to stop but he did not stop rather he turned his motorcycle towards back and fell down on road. Thereafter he tried to stand his motorcycle again and started run away, simultaneously, he opened fire on police party by a countrymade pistol. Unfortunately, none of the police person received any firearm injury. The police party chased him and caught him in front of Vikas Khand. The police party asked his name and address and recovered a countrymade pistol of .315 bore from his possession which was in functioning condition. The police party also recovered an empty cartridge from the barrel of countrymade pistol and two live cartridges from his pocket. The accused could not show the papers of his vehicle. On enquiry, he said that the recovered motorcycle having original Registration No.UP32 AQ 4062 which was stolen by him. The police party took motorcycle and firearm in his possession. They kept firearm and cartridges under seal, prepared recovery memo on the place of occurrence. The police party arrested the accused person and as they reached at police station, they lodged the FIR of occurrence.

3. The investigation of the case was done by Sub Inspector, Suresh Chandra Sen, who submitted the charges sheet against accused person under Section 25 of Arms Act.

4. Before the court concerned the charges under Section 25 of Arms Act were framed against accused who denied and abjured of the charges, pleaded not guilty and requested for trial.

5. On behalf of the prosecution, Jaikaran as PW-1, Niyaz Ahmad Khan as PW-2, Surendra Nath Rai as PW-3, Suresh Kumar Srivastava as PW-4 and Ram Prakash Chaudhary as PW-5 hd recorded their oral evidences.

6. After completion of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which the accused has denied the facts as mentioned in FIR and submitted that he has been caught by the police at Bhanmau when he was going court from his residence. He also submitted that the prosecution witnesses have given false evidences against him.

7. Learned Trial Court after considering the case on merit convicted the accused under Section 25 of Arms Act against which the present appeal has been filed by the accused.

8. Learned counsel for the appellant has submitted that learned Trial Court has wrongly convicted and sentenced the accused/appellant. There was substantial contradiction in the statements of witnesses. The prosecution case is not corroborated by the cogent evidence. The recovered firearm has not been sent to Forensic Science Laboratory for examination and charge sheet has been submitted by investigating officer against accused/appellant in mechanical manner. The investigating officer was subordinate to informant. No public witness has been procured at the time of his arrest as well as alleged recovery of firearm. Learned counsel for the appellant has further submitted that the appellant has been acquitted from the offence under Sections 465 and 307 of IPC. The prosecution was failed to prove its case against accused/appellant as such the judgment and order of sentence of accused/appellant deserves to be set aside and appeal is liable to be allowed.

9. In reply, learned AGA has submitted that judgement and conviction order of learned Trial Court is just and proper. The accused at the time of occurrence with intention to kill police personnel had opened fire on the police team and the police personnel have recovered a countrymade pistol along with empty and live cartridges from his possession and also a stolen motorcycle has been recovered from the possession of the accused/appellant. According to law, the police personnel are competent witnesses, who have proved the prosecution case successfully, therefore, the appeal has no force and is liable to be dismissed.

10. Having heard the submission of learned counsel for the appellant and learned AGA, I have gone through the record of the case properly.

11. On behalf of the prosecution, the witness PW-2 Head Constable, Niyaz Ahmad Khan, who was present at the place of occurrence as a member of police party, has given his evidence. In his examination-in-chief, the witness has mentioned that when the accused was coming towards Harakh Crossing by his motorcycle, the police party gave him indication to stop but the accused did not stop, resultantly, the police personnel chased him by police jeep which was driven by its driver Satya Narain Chaubey. In his cross examination, the witness PW-2 has stated that when the police party gave him indication to stop, the motorcycle of accused got skid as the rider tried to turn it towards backside. The witness PW-2 has further stated that the police party had chased accused by running not by police jeep. Here is discrepancy in the statement of witness PW-2 in his examination-in-chief as well as in cross examination. The witness, PW-3 Surndra Nath Rai has been examined, who was S.H.O. Jaidpur. He has narrated a different story. The eye witness PW-2 Niyaz Ahmad Khan in his cross examination has stated that when the accused tried to turn his motorcycle back, the motorcycle got skid. Thereafter accused ran and opened fire on police party whereas the witness PW-3 has stated that when the motorcycle of accused skid, he picked up his motorcycle and fled, also be opened fire on police party. Thus, examination-in-chief of witness PW-3 specifically indicates that accused fled by his motorcycle which is in contradiction with the statement of eye witness PW-2.

The witness PW-2 has further stated that on recovery of an empty cartridge, two live cartridges and a countrymade pistol, they were sealed by the police personnel at the place of occurrence. They have prepared its 'furd' also and procured the signature of person concerned on 'furd' (recovery memo); but according to the G.D. No. 24/16.40 dated 30.12.2003 no copy of recovery memo was found from the possession of accused-appellant, regarding which the witness PW-3 Surendra Nath Rai has admitted that at the time of confinement of accused in police station, no copy of 'furd' was recovered from his possession because he had thrown the same after tear. The statement of PW-3 does not inspire confidence, as the police personnel have not collected any torn copy of recovery memo particularly when the accused, from the place of occurrence to police station, was continuously in their possession. Apart from that it has not been mentioned in recovery memo that they had ever prepared any carbon copy of the recovery memo.

12. Learned counsel for the appellant has also submitted that even no money either in the form of note or coin has been shown recovered from the possession of accused which is common as it has been shown in the FIR that at the time of arrest accused was traveling by motorcycle.

13. The recovery memo as well as FIR indicates that accused had given statement to police party that the motorcycle which was recovered from his possession having real Registration No. was UP32 AQ 4062, was stolen by him but in investigation the investigating officer could not show any evidence that the real number of motorcycle was UP32 AQ 4062 or it was stolen property. The prosecution also could not show any first information report regarding any theft or robbery of motorcycle in question.

14. It has been shown that from the possession of accused a countrymade pistol with an empty cartridge in its barrel and two live cartridges from his pocket were recovered but the prosecution has not tried to procure any report of Forensic Science Laboratory rather the police has submitted charge sheet on the basis of report of armorer of Police Line, Barabanki. The armorer Ram Prakash Chaudhary has been examined by prosecution as PW-5 who in his cross examination has specifically stated that he had not examined the pistol by firing any cartridges. It has also been admitted by witness PW-5 that he do not know that the entry of Somai Prasad who had brought the pistol in police line was entered in concerned register of police line or not. The witness PW-5 has further stated in his examination-in-chief that he, without any cartridge had played the trigger of pistol. The above examination is not recognized by law to prove the fact that accused had open fired and the empty cartridge which was in the barrel of pistol was the same. The recovered empty cartridge along with two live cartridges should have been examined by Forensic Science Laboratory by firing the cartridge from the recovered pistol. The prosecution fact that the accused opened fire on seven police persons who were chasing him, is not seems credible as none of the policeman could receive any firearm injury. One more fact has been shown that despite fire on police party, none of the armed policeman opened any fire on accused in self defence. Police has not recovered any bullet/pallets from the place of occurrence.

15. The spot map was prepared by the investigating officer which indicates that the occurrence took place at public place where there were so many shops and hotel on road side. According to the prosecution, the occurrence took place at about 1:30 PM but no public witness has been procured by the police. Also the police has not investigated that from where the accused has procured the countrymade pistol and cartridges. The police has not tried to take any finger print of accused also.

16. The record indicates that after recovery of firearm pistol, empty as well as live cartridges which were under the custody of court and were kept in Malkhana of concerned police station but without any permission of the trial court and without any examination by Forensic Science Laboratory, tjeu were delivered by Station House Officer concerned to the police personnel of Police Station, Gomti Nagar, Lucknow. This fact has been mentioned by the Presiding Officer in its order dated 13.9.2004. By above illegal act of police, the recovery of countrymade pistol and cartridges as shown by prosecution becomes highly doubtful and in such a situation the alleged recovery memo, cannot be relied upon. There is one more fact that the accused has been acquitted from the offence of Sections 307 as well as 465 of IPC as the prosecution was failed to prove the offence against him.

17. The above discussed discrepancies and lackness of prosecution are substantial in nature and are fatal for the prosecution case, therefore, it can be concluded that the prosecution was failed to prove its case against accused, beyond reasonable doubt. Learned Trial Court has erred in convicting the accused/appellant by ignoring the settled principle of law. Also learned trial court could not appreciate the evidence in accordance with law. Consequently, the order of conviction as well as sentencing of accused appellant deserves to be set aside. The accused/appellant is liable to be acquitted from the offence.

18. Accordingly, the appeal succeeds and is allowed. The judgment and order dated 20.11.2004 is hereby set aside.

19. As the accused-appellant Raja Ram Verma is already on bail, no further order is required.

20. Office is directed to communicate this order to the court concerned forthwith.

 
 
 
                       
 
                            (Narendra Kumar Johari, J.)        
 

 
Lucknow
 
January 20, 2023
 
Amit  
 

 
   Whether the order is speaking:-    Yes/No 
 
	        Whether the order is reportable:-  Yes/No