IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No.191 of 2004 Akram .….…… Revisionist versus State of Uttaranchal ………. Opposite party along with Criminal Revision No .193 of 2004 Akram .….…… Revisionist versus State of Uttaranchal ………. Opposite party ----------------------- Mr. Chandramauli Sah, Advocate holding brief of Mr. T. A. Khan, Advocate for the Revisionist. Mr. Prabhakar Joshi, Brief Holder for the State JUDGMENT Hon’ble U.C. Dhyani, J.(Oral) 1. These two criminal revisions have been instituted by accused Akram S/O Abid Hussin, R/O Jogipur, P.S. Ram Nagar, Distrcit – Nainital against the judgment and orders dated 20.08.2004 passed by the learned Additional District Judge/ Fast Track Court, Kashipur , Udham Singh Nagar 2 in Session Trial No. 178 of 2004 whereby he was convicted for the offence punishable under section 307 IPC and was awarded rigorous imprisonment for four months and a fine of Rs. 50/-, in default of payment of fine he was sentenced to undergo one week’s further imprisonment. 2. On 20.08.2004, learned trial court had convicted two accused viz., Israr and Akram. Present Revisions have been filed only on behalf of Akram. 3. Both the accused persons Akram & Israr were also convicted for the offence punishable under section 25 Arms Act. Both were awarded the sentence of two month’s rigorous imprisonment but only Akram has preferred this Revision. 4. Both these revisions are being decided by this common judgment. 5. Heard learned counsel for the revisionist as well as Shri Prabhakar Joshi, Brief Holder for the State and perused record. 6. The prosecution case is that on 18.04.2004 at 1:30 pm at Shamshanghat Road, P.S. Kashipur, District Udham Singh Nagar accused persons Akram and Israr, in the company of Nazakat alias Cheeta, fired on the Police party with their country-made pistols in furtherance of their common intention. They were apprehended by the Police on the spot and one country-made pistol 12 bore along with two 3 cartridges were recovered from the possession of Akram (present revisionist). He had no license to keep that country-made pistol and hence he was challaned for the offence punishable under Section 25 Arms Act and for the major offence under Section 307 IPC. After investigation of the case two charge-sheets-one for the offence punishable under Section 307 IPC and another for the offence punishable under Section 25 Arms Act were filed in the court of Judicial Magistrate, Kashipur. After complying with the provisions of Section 207 Cr.P.C. the Judicial Magistrate, Kashipur committed the case to the court of Sessions. The trial proceeded in the court of Additional Sessions Judge/FTC, Kashipur, Distrcit – Udham Singh Nagar. One witness was examined. The statements of the accused under Section 313 Cr.P.C. were taken. No evidence was given in defence. After hearing the prosecution as well as the defence the learned trial court convicted accused Akram under Section 307 IPC as well as under Section 25 Arms Act. 7. Aggrieved against these orders, the accused-revisionist Akram has preferred these two revisions. 8. The sole evidence on the basis of which the accused has been convicted is that of PW 1 Constable 69CP Mohd. Kamil. The said witness has tendered in evidence that he was posted at P.S. Kashipur on 18.04.2004 . On that day while he was in the company of ASI C.H.Joshi, SI C. P. Singh, Constable Jitender Singh, Rajender Singh, Radheshyam and Constable-Driver Kushal Singh, they were informed that the dacoits Israr and others have 4 proceeded towards Ali Khan. The Policemen went to Ali Khan Chauraha on gypsy. They saw three persons coming on motor-cycle. The accused persons fired on the police party, no sooner they saw them. The Police personnel were saved. Sub Inspector also fired on the accused persons in retaliation and in private defence. The accused persons were chased and two of them were apprehended at 1:30 pm. One country-made pistol 12 bore and two cartridges were recovered from the possession of Israr. One country-made pistol 12 bore and two cartridges were recovered from the possession of the present accused- revisionist Akram. A recovery-memo was prepared on the spot. This witness has proved the recovery-memo (Ext. Ka-1) which bears his signature as well. Chik FIR (Ext. Ka-2) has also been proved by PW 1 Constable 69CP Mohd. Kamil. An entry was made in the G.D. which has also been proved as Ext. Ka-3. Investigating Officer SI Rewat Singh Rawat visited the spot, took the statements of the witnesses and prepared site plan (Ext. Ka-4). Sanction of the District Magistrate was obtained in relation to offence punishable under Section 25 Arms Act. Said permission in relation to present revisionist Akram is Ext. Ka-6. After the investigation, two charge-sheets (Exts. Ka- 8 and Ka-9 ) were submitted in the court . The suggestions were put forwarded on behalf of the revisionist that the entire proceedings against him are false and no country- made pistol/cartridges were recovered from his possession. The lone Police witness has denied the suggestion of accused. It may be recalled here that the accused Akram himself had cross-examined the lone 5 Police witness. The assistance of Amicus Curiae, it appears, was not provided to him. This is the total prosecution evidence on the basis of which the learned trial court has convicted the accused. 9. The prosecution case could not have been proved on the strength of such an evidence of PW 1 Constable Mohd. Kamil. Although he has said that he was also an eyewitness to the incident but there is no corroboration from any other Police or public witness. Law is settled that the conviction can be scored on the strength of testimony of single eyewitness but the quality of that evidence should be such as to inspire confidence in the mind of the court. The quality of evidence in this case does not inspire confidence so far as this Court is concerned. 10. Besides the single police witness, no other witness from the public has been produced by the prosecution. Even the country-made pistol and the cartridges which could have been produced before the court and proved as material exhibits have also not been presented on behalf of the prosecution before the learned trial court. 11. The accused has not been provided with the assistance of learned amicus-curiae and thereby he was denied the proper legal aid to defend himself before the learned trial court. 12. On the whole, the conviction cannot sustain on the basis of such a weak and inconvincing testimony of the lone police witness who was produced to prove each and every 6 document of the prosecution. It may also be noted here that it was a case of firing on police party by the accused in which no police person was injured. 13. Learned Brief Holder has submitted the revision has been rendered infructuous, in as much as the accused persons had already served the sentences and perhaps, because of this fact the learned trial court has awarded the sentence already undergone by the revisionist. 14. Both the revisions preferred by the revisionist Akram are allowed. Consequently, the impugned orders dated 20.08.2004 convicting and sentencing the accused- revisionist Akram under Section 307 IPC and another under Section 25 Arms Act are set aside. 15. The accused-revisionist Akram has already served the sentence awarded to him by the learned trial court and hence no further direction is required to be given in this behalf. Let the lower court record be sent back. (U.C. Dhyani, J.) Dt: 09.12.2011 Kaushal 7