Uttarakhand High Court
Mohd. Waseem vs State Of Uttarakhand on 25 February, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 28 of 2025
Mohd. Waseem .............. Appellant
Versus
State of Uttarakhand .............Respondent
Present:
Mr. Sachin Panwar, Advocate for the appellant.
Mr. Siddharth Bisht, A.G.A. with Mr. Himanshu Sain, Brief Holder for the
State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The present appeal is preferred against the
judgment and order dated 23.12.2024, passed in Sessions Trial
No.05 of 2019, State of Uttarakhand Vs. Faeem Ansari and others,
by the Court of Additional Sessions Judge, Kotdwar, District Pauri
Garhwal ("the case"). By it, appellant and co-convicts have been
acquitted of the charge under Section 379, 465, 403 IPC and the
appellant has been convicted under section 411 IPC and sentenced
to undergo rigorous imprisonment for a period of three years with a
fine of `2,000/- In default of payment of fine, to undergo rigorous
imprisonment for a further period of three months.
2. According to the prosecution case, PW1 Dhirendra
Naithani filed an FIR at Police Station Kotdwar, District Pauri
Garhwal on 05.09.2016. According to it, on 04.09.2016, his
motorcycle bearing Registration No.UK12D 2144 was stolen. Based
on which, Case Crime No. 240 of 2016 was lodged under Section
379 IPC and investigation proceeded. According to the prosecution,
on 07.09.2016, the stolen motorcycle was recovered from the
possession of the appellant when he was riding on the motorcycle.
There were two other co-accused, from their possession also,
counterfeit currency notes and arms, etc. were recovered, of which,
under Section 411 IPC was also added. Based on other recoveries,
other cases were also lodged against the co-convicts. After
investigation, charge sheet was submitted against the appellant
and two others for the offences under Section 379 and 411 IPC,
which is basis of the case. Based on different charge-sheets,
different cases were lodged and the trials were jointly proceeded.
On 23.04.2019, charge-under Sections 379, 411, 403, 465 IPC
were frame against the appellant and others, to which, they denied
and claimed trial.
3. After hearing the parties, the appellant has been
acquitted of the charge under Sections 403, 465 IPC and he has
been convicted for the offence under Section 411 IPC and convicted
there under.
4. In order to prove its case, the prosecution examined
ten witnesses, namely, PW1 Dhirendra Naithani, PW2 Sub
Inspector Vijay Singh, PW3 Sub Inspector Omveer Singh, PW4
Constable Rahul, PW5 Sub Inspector Sunil Rawat, PW6 Head
Constable Amit Rana, PW7 Sub Inspector, Chandra Mohan, PW8
Head Constable, Devi Lal, PW9 Sub Inspector, Anit Kumar and
PW10 Sub Inspector, Satendra Bhati.
5. Appellant was examined under Section 313 of the
Code of Criminal Procedure, 1973 ("the Code"). He has denied the
prosecution case. According to him, he has been falsely implicated.
6. After hearings the parties, the learned Court below,
by the impugned judgement and order, convicted and sentenced
the appellant, as stated hereinbefore. Aggrieved, the instant appeal.
7. Heard learned counsel for the parties and perused
the record.
8. Learned counsel for the appellant would submit
that the appellant has not challenged his conviction. The only
request is that it is offence under Section 411 IPC, therefore, the
appellant may be released on probation of good conduct. The
appellant is not a previous convict. This is his first offence.
9. Learned State counsel would submit that the record
does not reveal any previous conviction of the appellant.
10. In the instant case, PW1 Dhirendra Naithani is the
informant. According to him, his motorcycle was stolen on
04.09.2016 of which he has given a report.
11. PW2 Sub Inspector, Vijay Singh is the person who
had recovered the stolen motorcycle from the appellant. He has
stated about it. According to him, on 07.09.2016, upon information
having been received, the appellant and other were intercepted and
the motorcycle was recovered from the appellant. He has also
proved the document which were prepared by him at the time of
alleged recovery.
12. PW3 Sub Inspector, Omveer Singh and PW4
Constable, Rahul, PW5 Sub Inspector Sunil Rawat, PW6 Head
Constable Amit Rana, are also the witnesses of recovery. They have
supported the statement of PW2 Sub Inspector, Vijay Singh.
13. PW7 Sub Inspector, Chandra Mohan had conducted
investigation in the instant matter and submitted charge-sheet
against the appellant and the co-accused under Section 379 and
411 IPC.
14. PW8 Head Constable, Devi Lal has proved chik FIR
and other documents of the police station.
15. PW9 Sub Inspector, Anit Kumar investigated Case
Crime No.254 of 2016, under Section 465 IPC and Case Crime
No.296 of 2016, under Section 403 IPC and submitted charge-
sheets. It may be noted that these FIRs were lodged post recovery of
motorcycle and other articles from the appellant and the co-
accused.
16. PW10 Sub Inspector, Satendra Bhati also
investigated the connected offences which were lodged post
recovery of the articles and he submitted the charge-sheet.
17. PW2 Sub Inspector Vijay Singh, PW3 Sub Inspector
Omveer Singh, PW4 Constable Rahul, PW5 Sub Inspector Sunil
Rawat and PW6 Head Constable Amit Rana had stated about
recovery that was made from the appellant.
18. No arguments have been made on the merits of the
case.
19. Learned counsel for the appellant would submit
that it is the first offence of the appellant; he is a permanent
resident of District Pauri Garhwal, therefore, instead of sentencing
him, he should have been given the benefit of probation.
20. Learned State counsel would submit that record
does not speak about previous conviction of the appellant.
21. It is a case of theft and recovery of a motorcycle.
22. Having considered, this Court is of the view that
instead of sentencing at once to any punishment, the appellant
may be released on the probation of good conduct.
23. The conviction of the appellant under Section 411
IPC is upheld. But, instead of sentencing him at once to any
punishment, let the appellant be released on his entering into a
bond with two sureties to appear and receive the sentence
whenever called upon during the period of six months and in the
meantime to keep a peace and be a good behaviour.
24. Impugned judgment and order in the case is
modified to the extent, as indicated above.
25. The appeal stands disposed of accordingly.
(Ravindra Maithani, J.)
25.02.2025
Sanjay
