IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1499 of 2001 (Old No. 986 of 1995) Harjeet Singh S/o Harbans Singh R/o Nadala, Police Station Subhanpur, District Kapoorthala, Punjab. ...…………. Appellant Versus The State ...…………. Respondent Mr. J.S. Virk, Advocate for the appellant. Mr. B.S. Parihar, Brief Holder for the respondent-State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 24.06.1995, passed by learned I Additional Sessions Judge, Nainital, in Sessions trial No. 79 of 1994, whereby the accused / appellant Harjeet Singh has been convicted under Section 411 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and directed to undergo rigorous imprisonment for a period of two years. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 29.03.1989, at about 09:30 P.M., in the house of complainant Baldev Raj Sharma (P.W. 1), situated in Village Harlal Pur, within the limits of police station Bazpur, some 8-10 armed dacoits entered and robbed the complainant of his licensed DBBL gun No. 8000056. In said robbery rifle of one Tilak Raj bearing No. 802196, some cartridges, jewellery and watches were also looted. First information report (Ext. A –1) of said incident was lodged by the complainant on 30th of March 1989, at 00:30 hours with police station Bazpur, on the basis of which check report (Ext. A –2) was prepared by the police, which is registered as case relating to offences punishable under Section 395, 397 of I.P.C. On 14.07.1989, accused / appellant Harjeet Singh was arrested by Gurgaon police and the aforesaid stolen property DBBL gun No. 8000056 was recovered from his possession. A separate crime was registered under Arms Act and under Section 5 / 6 of the Terrorist and Disruptive Activities (Prevention) Act, against the accused / appellant in Gurgaon. Said case relating to Arms Act and Terrorist and Disruptive Activities (Prevention) Act, was decided by Addl. Judge (Designated Court) Faridabad, who sentenced accused / appellant Harjeet Singh in said case to rigorous imprisonment for five years, and also to pay fine of Rs. 500/-. Meanwhile, since, the complainant gave an application for release of the recovered gun, the accused / appellant Harjeet Singh was summoned under Warrant ‘B’ by the Judicial Magistrate, Kashipur (earlier Bazpur was part of District Nainital, now part of District Udham Singh Nagar) in connection with Crime No. 109 of 1989, for facing trial in respect of offence punishable under Section 412 of I.P.C. After the accused was taken into custody in aforesaid crime No. 109 of 1989, a charge sheet (Ext. A –6) was filed against the accused / appellant Harjeet Singh, for his trial in respect of offence punishable under Section 412 of I.P.C. The Magistrate committed the case to the court of Sessions, for trial. The trial court, after hearing the parties, framed charge of offence punishable under Section 412 of I.P.C. against the accused / appellant Harjeet Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Baldev Raj Sharma. Genuineness of the documents (Ext. A –1 to Ext. A –6) were admitted by the defence counsel and the prosecution evidence was closed. However, the trial court summoned C.W. 1 Babu Lal, A.S.I., exercising powers under Section 311 of Cr.P.C., and examined said witness. Thereafter, the evidence was put to the accused under Section 313 of the Cr.P.C., in reply to which he denied that the gun was recovered from him. However, he admitted that he has been found guilty by the court at Faridabad, in connection with the recovery on the basis of which the cases under Arms Act and Terrorist and Disruptive Activities (Prevention) Act were registered against him. No evidence in defence was adduced. After hearing the parties, the trial court found that the accused / appellant Harjeet Singh is guilty of the charge of offence punishable under Section 411 of I.P.C. After hearing on sentence, the trial court sentenced the accused / appellant to rigorous imprisonment for a period of two years. Aggrieved by said order dated 24th of June 1995, passed by I Addl. Sessions Judge, Nainital, this appeal was preferred by the convict before the Allahabad High Court on 3rd of July 1995, where it was admitted on 4th of July 1995. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 4) As to the recovery of the gun which was recovered by the Gurgaon police, the accused / appellant himself has admitted in his statement under Section 313 of Cr.P.C. that he had already been convicted by the Additional Judge (Designated Court), Faridabad, on 07.05.1990. He has further admitted that he was sentenced to five years imprisonment and also directed to pay fine of Rs. 500/-. It is also admitted by him that he did not prefer the appeal against said order, which attained finality. Therefore, as far as the recovery of the DBBL gun No. 8000056 from the accused / appellant Harjeet Singh is concerned, the same stands proved on the record, not only on the basis of the statement of C.W. 1 Babu Lal, A.S.I., but also from the recovery memo (Ext. A –4) and the admissions made by the accused / appellant before the trial court. The only other point required to be proved by the prosecution for conviction of the accused / appellant in connection with offence under Section 411 of I.P.C. was that the DBBL gun No. 8000056 was stolen property. This fact has been proved on the record by P.W. 1 Baldev Raj Sharma, who has proved that on 29.03.1989, at about 09:30 P.M., dacoits entered in his house in Village Harlal Pur, and looted his DBBL gun No. 8000056 (12 Bore). 5) Having re-assessed the evidence on record and after hearing learned counsel for the accused / appellant and learned counsel for the State, this Court does not find any error of law committed by the trial court in convicting the accused under Section 411 of I.P.C. Therefore, the appeal as far as the conviction of the accused / appellant is concerned, is liable to be dismissed. 6) On the point of sentence, learned counsel for the appellant drew attention of this Court to the order sheet of the lower court and pointed out that the appellant had been in jail throughout the trial. He further pointed out that out of the two years (24 months), the appellant has already served for more than 21 months, in jail. It is further submitted that no useful purpose would be served by sending the appellant again in jail for two months, at this stage. Having considered the submissions of learned counsel for the parties, this Court is in agreement with the learned counsel for the appellant that the sentence awarded to the appellant deserves to be reduced to the period already undergone (21 months) which he has already served out during the trial. Accordingly, to that extent the appeal stands partly allowed. The accused / appellant is on bail. He need not to surrender. His bail bonds are cancelled and sureties discharged. The lower court record be sent back along with copy of this Judgment. (Prafulla C. Pant, J.) Dt. October 14, 2009. H. Negi