Sushil (Male Aged About 37 Years) vs State Of Uttarakhand
2021 Latest Caselaw 171 UK

                                     1




      IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL

           Criminal Appeal No. 126 of 2019

Sushil (Male aged about 37 years)
S/o Gyan Singh, R/o Village Miragpur
P.S. Deoband, District Saharanpur (U.P.)
                                                 ......Appellant

                             Vs.
State of Uttarakhand                         ......Respondents


Mr. M.S. Pal, learned Senior Advocate assisted by Ms.
Charanjeet Kaur, Advocate for the appellant.
Mr. Subhash Tyagi Bhardwaj, learned Dy. Advocate
General with Ms. Shivangi Gangwar, learned Brief Holder
for the State.

Hon'ble Lok Pal Singh, J.

This appeal has been preferred against the judgment and order dated 18.02.2019, passed by the Special Judge/3rd Additional Sessions Judge, Haridwar in S.S.T. No. 11 of 2009, State vs. Praveen Balmiki & Ors., whereby the said court has convicted the appellant Sushil under section 2/3 of U.P. Gangsters and Anti Social (Prevention) Activities Act, 1986 (hereinafter referred as the Act) and sentenced him to rigorous imprisonment for a period of 10 years and directed to pay fine of Rs. 10,000/-, in default of which accused/appellant to undergo further three months' simple imprisonment.

2. Brief facts, in nutshell, are that the informant Incharge Inspector Sri B.S. Chauhan gave a report with the averments that on 24.07.2008 when he along with Constable Sandeep Kumar and

constable Ravi Pant was on patrolling duty, he was informed by the villagers that there is active gang of Praveen Balmiki who is its leader, which runs with the help of its associates namely Sushil (present accused/appellant), Narendra and Pappu. The gang has been involved in the commission of the offences like dacoity, murder, extortion etc., and due to their act, there is terror in the society and, therefore, nobody lodged any report or gives any evidence against the member of the gang. In the gang chart (Ex. A1) against present accused Sushil case crime no. 125 of 2008, under sections 302/307, 506, 34 and 120B IPC , case crime no. 107 of 2005 under section 147, 148, 149, 302, 34 IPC and case crime no. 54 of 2000 under section 302 and 120B IPC are registered at police station Kotwali Gangnahar , against Praveen Balmiki case crime no. 125 of 2008 under section 302/307, 506, 34 and 120B IPC, case crime no. 291 of 2006 under sections 392, 411, 120B IPC, case crime no. 77 of 2006 under sections 302 IPC and case crime no. 372 of 2006 under section 25 Arms Act, against Naresh case crime no. 125 of 2008 under section 302/307, 506, 34 and 120B IPC, case crime no. 298 of 2007 under section 308 IPC and against accused Pappu case crime no. 125 of 2006 under section 302/307, 506, 34 and 120B IPC and , case crime no.107 of 2005 under section 147, 148, 149, 302, 34 IPC are registered at Police Station Kotwali Gangnahar, Roorkee, Laksar and Manglaur.

3. On the basis of said report FIR (Ex. A4) was got lodged and case crime no. 211 of 2008, under section 2/3 of the Act was registered. After grant of approval of the gang chart by the District Magistrate and on completion of investigation, charge sheet was submitted against the present accused/appellant by the Investigating Officer. The learned Sessions Judge framed the charge under section 2/3 of the Act against the accused/appellant to which he pleaded not guilty and claimed to be tried.

4. To prove the guilt of the accused/appellant, the prosecution got examined ten witnesses, namely, P.W.1 Inspector Bahadur Singh Chauhan,( complainant) P.W.2 Sachin (informant in another case) P.W.3 Sub-Inspector Dinesh Kumar (Investigating officer of case crime no. 231 of 2006), P.W. 4 Shahazad (complainant of another case) P.W.5 Inspector Vijay Chandra Singh Gusain (Investigating officer of case crime no. 211 of 2008), P.W.6 Swyamwar Singh Rautela, P.W. 7 S.I. Bhupendra Mehta, P.W. 8 Cons. Sandeep Kumar, P.W.9 Vikas Kumar Salar, and P.W.10 Atul Kumar.

5. The oral and documentary evidence was put to the accused under section 313 Cr.P.C. in reply to which he alleged that he has been falsely implicated in the case. He further stated that in

case crime no. 107 of 2005 and case crime no. 54 of 2000 he has already been acquitted and case crime no. 125 of 2008 is pending consideration (acquitted by the trial court vide judgment and order dated 29.09.2018). However, no evidence in defence was adduced. The trial court after hearing learned counsel for the parties found that prosecution has successfully proved the guilt of the accused beyond the shadow of doubt and convicted him accordingly. Aggrieved by the impugned judgment, present appeal has been preferred by the accused/ appellant.

6. PW1 B.S. Chauhan, Inspector, complainant proved the averments of the FIR, gang chart (Ex. A1) and his signature after grant of approval from the then District Magistrate. PW3 S.I Dinesh Kumar is the Investigating Officer in case crime no. 231 of 2006, who proved charge sheet (paper no. 7ka/21). P.W4, P.W.2 and PW10 are the complainant in other cases. The other witnesses corroborate the version of P.W.1., who also proved the documents like chick FIR, charge sheet etc..

7. It is the contention of the learned counsel for the appellant that the impugned order is against the weight of evidence on record and bad in law. In the gang chart pendency of three cases i.e. case crime no. 125 of 2008, case crime no. 107 of 2005 and case crime no. 54 of 2000 has been

shown against the accused/appellant whereof he has already been acquitted in the above cases by the trial court. The prosecution miserably failed to prove that there was a gang and the appellant was its member/leader and such gang indulged in such activities which are prohibited under Clause

(b) of section 2 of the Gangster Act.

8. Per contra, learned counsel for the State would submit that the learned trial court after proper appreciation of the entire facts held the appellant guilty for the charges.

9. Heard learned counsel for the parties and perused the material available on record.

10. Before entering into the merit of the respective arguments it would be appropriate to reproduce section 2(b) and (c) of the Act.

(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.]

(c) "gangster" means a member or leader or organizer 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;

11. Now this Court has to examine whether the appellant had formed a gang which indulged into the prohibited activities. Accused/appellant Sushil has been shown booked in three cases in the gang chart but in all these cases he has been acquitted by the court below and this fact has been observed by the learned trial Judge in its judgment. Further the trial court has also observed that nothing has come on record which shows that the accused/ appellant Sushil is the member of the gang.

12. The learned trial judge has recorded a finding of formation of gang on the basis of the gang chart produced by P.W.1 Inspector B.S. Chauhan, complainant, approved by the learned District Magistrate and convicted the accused-appellant under section 2/3 of the Act. The gang chart and its approval by the Superintendent of Police is not the evidence that the accused named therein had formed a gang or member of gang to commit organized crime for material or financial benefits or to disturb the public order. Further the findings recorded by the learned Trial Judge are factually incorrect and there is no evidence on record in this regard.

13. The learned trial Judge has recorded its finding that nothing has been brought on record to prove that the appellant was either a gang leader or member of the gang or he committed any offence punishable under section 2(b)(c) of the Act, despite, he has convicted the appellant under section 2/3 of the Act and sentenced him for a period of 10 years.

14. In view of the above, this court is of the firm opinion that the prosecution has utterly failed to prove its case against the appellant either he was the gang leader or member of the gang or committed any offence punishable under section 2(b)(c) of the Act.

15. The impugned judgment and order dated 18.02.2019 passed by the trial court is unsustainable in the eye of the law and the same is liable to be set aside. The same is set aside. The appeal is allowed. Appellant is on bail. Bail bonds are cancelled. Sureties are discharged.

16. Office is directed to communicate this decision to the court concerned forthwith and to send back the record.

                                  (Lok Pal Singh, J.)
Parul                                 14.01.2021