Pawan Kumar Rawat vs State Of Uttarakhand
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Uttarakhand High Court

Pawan Kumar Rawat vs State Of Uttarakhand on 6 June, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL
                   Criminal Appeal No. 342 of 2007
Pawan Kumar Rawat                                           .....Appellant
                                     Vs.
State of Uttarakhand                                     .....Respondent
Presence:
       Mr. Yogesh Pant, learned Amicus Curiae for the appellant.
       Mr. K.S. Bora, learned DAG for the State.

Hon'ble Pankaj Purohit, J.

This criminal appeal is directed against the judgment and order dated 17.03.2005, passed by learned Sessions Judge, Dehradun, whereby Sessions Trial Nos.7 of 2003 and 8 of 2003 have been decided by this common judgment and order and the appellant was not found guilty and was acquitted of charges under Section 302 IPC and Section 3 (2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "SC and ST Act, 1989") and was convicted only under Section 4/25 of Arms Act, 1959 and sentenced for a period already undergone as he was in jail since the date of his arrest.

2. Facts of the case are that appellant-Pawan Kumar Rawat on 03.07.2002 at 07:30 PM came on his scooter at the house of PW1-Manoj Kumar as there were some dues of ₹2,500/- on him, which he said, he will pay at bridge of Ganga Canal. Amar Kumar @ Tonny (brother of Manoj Kumar) and Manoj Kumar went with the appellant on his scooter; when they reached at the bridge of Ganga Canal, Amar Kumar @ Tonny demanded money at which Pawan Kumar Rawat took out his knife from his trouser and stabbed at the neck of Amar Kumar. When an alarm was raised by Manoj Kumar, Rajendra Singh, Gaurav, Rahul and Rajiv came on the spot, they tried to catch the appellant, but he fled away leaving his scooter on the spot. Amar Kumar @ Tonny (injured) was taken to Dev Nursing Home, Roorkee from where he was referred to Civil Hospital, Roorkee where he was declared brought dead. With these averments the FIR (Ex. Ka-1) was lodged.

3. As per the case of the prosecution, the blood stained knife was recovered at the instance of the appellant on 17.07.2002 and a recovery memo (Ex. Ka-2) was prepared.

4. PW13-S.O. Jasbir Singh Pundir conducted the investigation and prepared the inquest report and site plan; took scooter of the alleged assailant in his possession; prepared the recovery memo (Ex. Ka-9) and sent the knife to Forensic Science Laboratory. After completion of the investigation, charge-sheet (Ex. Ka-5) was submitted by the Investigating Officer in the trial court.

5. PW11-Dr. K.K. Koroli, who conducted postmortem over the body of deceased on 04.07.2002, found ante-mortem injuries on the person of the deceased and he also proved the post-mortem report.

6. Since the appellant has been acquitted of the charges under Section 302 IPC and Section 3 (2)(v) of SC and ST Act, 1989, there is no need to reproduce the injuries found on the person of the deceased.

7. Charges under Section 302 IPC, Section 3 (2)(v) of SC and ST Act, 1989 and under Section 4/25 of the Arms Act, 1959 were framed against the accused by the trial court. The appellant did not plead guilty and claimed to be tried. The prosecution in support of its case has examined PW1-Manoj Kumar (informant), PW2-Rajeev Kumar, PW3- Shiv Kumar, PW4-Gaurav Kumar, PW5-Rahul Kumar, PW6-Ramesh Kumar, PW7-Vishwanath Tyagi, PW8-Munir Aalam, PW9-Rajesh Chand Sharma, PW10-S.P.Ajay Joshi, PW11-Dr. K.K. Karoli, PW12- S.I. Mahesh Chand, PW13-S.O. Jasbir Singh Pundir and PW14-S.I. Vinod Kumar Sharma.

8. The appellant in his statement under Section 313 of CrPC admitted that his scooter was recovered from the site, but denied rest of the allegations except his acquaintance with Manoj Kumar (informant). In reply to question no.7 under Section 313 CrPC, it is explained by him that Manoj Kumar (informant) borrowed his scooter and for that reason, it was recovered near Ganga Canal. He denied recovery of any knife from him or at his pointing out.

9. Learned Sessions Judge did not believe the prosecution story and acquitted the appellant of the charges under Section 302 IPC,

Section 3 (2)(v) of SC and ST Act, 1989 in Sessions Trial No.7 of 2003 by the common judgment and order impugned but convicted the appellant under Section 4/25 of the Arms Act, 1959 and sentenced as mentioned in para no.1 of this judgment.

10. Now the appellant is challenging part of the judgment whereby he was convicted under Section 4/25 of the Arms Act, 1959 and was sentenced.

11. It is argued by learned Amicus Curiae that in the case in hand the general diary entries have not been proved; site plan from where the knife was recovered has not been proved and the Investigating Officer categorically had stated that he had not made any site plan.

12. Learned Amicus Curiae further drew attention of this Court to the fact that there is nothing on record to suggest that the alleged recovery of knife was made from the appellant as there is no seal and survey available in the entire record.

13. It is strenuously argued by learned counsel for the appellant that once entire case of the prosecution has been disbelieved by learned Sessions Judge and learned Sessions Judge came to this conclusion that the prosecution failed to prove the charge against the appellant under Section 302 IPC/Section 3 (2)(v) of SC and ST Act, 1989, no occasion lies with the learned Sessions Judge to convict the appellant under Section 4/25 of the Arms Act, 1959.

14. Learned Amicus Curiae has taken this Court from the evidence of prosecution witnesses and submits that there is not an iota of evidence to prove that the alleged knife was recovered from the appellant or at his pointing out.

15. Per contra, learned State counsel made a feeble attempt to submit that the prosecution succeeded in proving its case against appellant beyond all reasonable doubt, but learned State counsel has no answer to the fact that as to why acquittal of the appellant was not challenged by filing a government appeal.

16. Having heard learned counsel for the parties and perusal of record, this Court finds no evidence on the record even to nail the appellant under Section 4/25 of the Arms Act, 1959.

17. This Court has gone through the evidence of Investigating Officer/PW12-S.I. Mahesh Chand and PW13-S.O. Jasbir Singh Pundir, who were not consistent in their evidence that as to where the knife was recovered.

18. From the document, site plan, (Ex. Ka-3 and Ex. Ka-7), it is reflected that the knife was recovered from a field of churry. In his evidence before the Court at page no.68 PW2-Rajeev Kumar says that the knife was recovered from the field of sugar cane. PW13-S.O. Jasbir Singh Pundir stated that he prepared site plan, but from the record it is evidently clear that one site plan (Ex. Ka-3) was prepared by PW9-S.I. R.C. Sharma on 19.07.2002 while another was prepared by PW10-Ajay Joshi, Circle Officer, Roorkee on 19.07.2002 (Ex. Ka-7) and one more by PW13-S.O. Jasbir Singh Pundir (Ex. Ka-8).

19. The site plan allegedly prepared by Investigating Officer/PW13-S.O. Jasbir Singh Pundir is also on record and the same is proved as well, but this site plan does not mention about recovery of knife.

20. Learned Amicus Curiae is right in saying that the site plan for recovery of the knife has not been made during investigation and there is nothing on record, whereby the alleged recovered knife from the appellant was sealed and sent for F.S.L.

21. Site plan (Ex. Ka-8) is proved and prepared by PW13-S.O. Jasbir Singh Pundir is not in respect of the recovery of knife. The prosecution failed to prove its case beyond all reasonable doubt against the appellant in respect of Section 4/25 of Arms Act, 1959 too. When case of the prosecution was disbelieved by learned Sessions Judge in respect of the charges under Section 302 IPC and Section 3 (2)(v) of SC and ST Act, 1989 of which no appeal has been preferred by the respondent-State, the charge under Section 4/25 of the Arms Act, 1959 cannot stood prove and therefore the conviction recorded by learned Sessions Judge against the appellant under Section 4/25 of the Arms Act, 1959 cannot sustain and accordingly the sentence is also unsustainable and bad under the law.

22. Upshot of the aforesaid deliberation unerringly comes to this conclusion that the appeal deserves to be allowed, the conviction and sentence inflicted by learned Sessions Judge upon the appellant cannot sustain.

23. Accordingly, the appeal is allowed. The judgment and order impugned in the present appeal is hereby set aside. Applicant is acquitted of the charges under Section 4/25 of the Arms Act, 1959. Since the appellant is sentenced for a period already undergone he shall not be either in custody or on bail. Trial Court Record be sent forthwith to trial court for information and necessary action.

(Pankaj Purohit, J.) 06.06.2024 SK