HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1326 of 2001 (Old no. 1129 of 1988) 1. Chintamani 2. Ummed Singh. ------- Accused/appellants. Versus The State. ------- Respondent Sri R.K.S. Verma, learned counsel for the appellant no.1, Sri I.P. Kohli, learned Amicus-Curiae for the appellant no.2, Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: June 18, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 01.02.1988 passed by learned IV Addl. Sessions Judge, Nainital in Sessions Trial no. 8 of 1985 State vs. Ummed Singh and another, alongwith connected Sessions Trial no. 10 of 1985 State vs. Ummed Singh and Sessions Trial no. 13 of 1985 State vs. Chintamani, whereby the learned IV Addl. Sessions Judge has convicted the accused/appellants Chintamani and Ummed Singh for the offence punishable u/s 307 read with Section 149 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced each of them to undergo 7 years’ rigorous imprisonment. The accused/appellants are further convicted for the offence punishable u/s 25 Arms Act and awarded sentence each of them to undergo 15 months’ rigorous imprisonment and It was directed that both the sentences shall run concurrently. 2. I have heard Sri R.K.S. Verma, learned counsel for the appellant no.1, Sri I.P. Kohli, learned Amicus-Curiae for the appellant no.2 and Sri Harish Pujari, learned Addl. Govt. 2 Advocate for the State and also perused the record of the Trial Court and the relevant papers. 3. The prosecution case, in brief, is that a police party headed by S.O. Vijendra Singh was in search of property and accused persons involved in an occurrence of village Swaraj, District Almora. On the morning of July 25, 1984, another police party which included S.I. Randhir Singh, the then Station Officer, was sent for. When this police party reached 1 km. ahead towards Ranikhet Road, then from the western side of Fire Line, 6 persons were seen approaching the metalled road who were armed with arms and ammunitions. On seeing the Police Party, the accused persons started moving back and began to run in the forest. The police party challenged and chased them. The accused persons opened fire on the police party and in response the police party also fired shots. The police party apprehended four accused persons at about 8:30 a.m. about 300 yards from the metalled road in the west forest and two of the accused were succeeded in fleeing away. The police party took search of the accused/appellants and on being searched to Ummed Singh, one double barrel rifle, 15 live cartridges 500 bore, one country made pistol 12 bore and 8 live cartridges and other articles were recovered. On being searched of Chintamani, one country made pistol 12 bore, 11 live cartridges and other articles were recovered from his possession. From the possession of other co-accused persons apprehended, some arms and ammunitions were also recovered. The recovered articles were sealed separately in the presence of the witnesses and the accused persons. The accused persons confessed their guilt of the dacoity and murder committed in village Swaraj, district Almora. Recovery memo was prepared on the spot, which is Ext.Ka-1. Thereafter the police party took the recovered articles and the accused persons to the Police Station where a case, on the basis of the recovery memo, was registered and the Chik F.I.R. Ext. Ka-8 3 was prepared by Head Moharir Vikram Singh on 25.07.1984 at 12:20 p.m. at Police Station Ramnagar in crime no. 122 to 126 u/s 147, 148, 149, 307, 412 I.P.C and four crimes u/ss 25 Arms Act. 4. Investigation of the case was entrusted to PW-5 S.I. N.N. Pandey. During the course of investigation, the Investigating Officer recorded statement of the witnesses, prepared site-plan of the place of occurrence Ext. Ka-2 he also obtained sanctions Ext. Ka-4 and Ext. Ka-5 from the District Magistrate, Nainital for prosecuting the accused/appellants Ummed Singh and Chintamani u/s 25 Arms Act. After completing investigation, the Investigating Officer submitted charge sheet Ext. Ka-3 against the accused/appellants u/s 147, 148, 149, 307 I.P.C. on 29.09.1984 alongwith the other co-accused persons. The I.O. has also submitted charge sheets Ext. Ka-6 and Ext. Ka-7 against the accused/appellants Ummed Singh and Chintamani respectively u/s 25 Arms Act on the same day i.e. on 29.09.1984. 5. Learned Chief Judicial Magistrate, Nainital camp Haldwani on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 03.01.1985 u/s 209 Cr.P.C. 6. Thereafter the case was transferred to the II Addl. Sessions Judge, Nainital for its hearing and disposal according to law and the II Addl. Sessions Judge, Nainital after hearing the parties on 13.02.1987 framed the charge of offence punishable u/s 307 read with Section 149 I.P.C. against the accused/appellants Ummed Singh and Chintamani. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. On the same day learned II Addl. Sessions Judge, after hearing the parties 4 framed separate charges u/s 25 Arms Act against the accused/ appellants Ummed Singh and Chintamani. The charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined PW-1 Head Constable-78 C.P. Gurbachan Singh, PW-2 Head Constable-32 C.P. Puran Singh, PW-3 S.I. A.P. Sharma, PW-4 S.I. Vijendra Singh and PW-5 Nardanand Pandey- Investigating Officer of the case. 8. Vide order of the Sessions Judge, Nainital dated 04.09.1987, the case was transferred to the Court of IV Addl. Sessions Judge, Nainital for its hearing and disposal. 9. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 10. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned IV Addl. Sessions Judge vide its judgment and order dated 1st February 1988 has convicted the accused/appellants Chintamani and Ummed Singh for the offence punishable u/s 307 read with Section 149 of I.P.C. and sentenced each of them to undergo 7 years’ rigorous imprisonment. The accused/ appellants were further convicted for the offence punishable u/s 25 Arms Act and awarded sentence each of them to undergo 15 months’ rigorous imprisonment and It was directed that both the sentences shall run concurrently. Aggrieved with the impugned judgment and order dated 1st 5 February 1988, the present accused/appellants have come up in the instant Criminal Appeal. 11. It is pertinent to discuss first the evidence of main witness. In this context the prosecution has examined PW-4 S.I. Vijendra Singh, who in his statement has deposed that in the month of July 1984 he was posted as Station House Officer at Police Station Ramnagar. On 24.07.1984 he received information through telephone that the accused persons wanted in connection with the crime committed in village Swaraj, District Almora can enter within the Police Circle of Ramnagar, therefore for the search of accused involved in that case, he alongwith the other police personnel-S.I. Arjun Singh and two Constables had proceeded in a Police Jeep. On 25.07.1984 he called S.O. Randheer Singh, S.I. K.P. Sharma, Head Constable Puran Singh and other police personnel. The time was in between 8:00-8:30 in the morning and at that time 6 persons armed with ammunitions were seen approaching about 1km. ahead from Amdanda from the western direction of the road from Fire Line. On seeing the police party, these persons had started to flee. When the police party chased them, they have opened fire on the police party with the rifle and guns, three or four times. He, for their defence, has also fired twice with his pistol. S.I. K.P. Sharma and S.I. A.S. Rawat have also fired once with their pistols. The constables Chiranjee Lal and Shishupal also fired once with their rifles. Enforcing required force the miscreants were surrounded and four miscreants were apprehended at 8:30 a.m. towards 300 yards in the west from the road and 2 miscreants succeeded in fleeing away from the place of occurrence. The police personnel had also chased the miscreants, but they had successfully run away. The accused/ appellants Ummed Singh and Chintamani were amongst the four miscreants who were apprehended from the spot. On being searched by the police party of the accused, one country 6 made pistol 12 bore (Ext. 1), 11 live cartridges 12 bore (Ext. 2 to 12) were recovered from the possession of accused/ appellant Chintamani. On making search of accused/appellant Ummed Singh one two barrel rifle 500 bore (Ext. 13), 15 live cartridges 500 bore (Ext. 14 to 28), one country made pistol 12 bore (Ext. 29) and 8 live cartridges 12 bore (Ext. 30 to 37) were recovered from his possession. Both of these accused persons failed to show any licence of having these arms and ammunitions. Besides these arms and ammunitions some other articles were also recovered from the possession of the accused/appellants. The recovered arms and ammunitions were kept in three separate bundles. The other recovered articles were kept in four separate bundles. The recovered bundles were sealed. Recovery memo of the said recovery was prepared on the spot by S.I. A.P. Sharma on his dictation and all the witnesses have put their signatures on the recovery memo. Copy of the recovery memo was given to the accused persons and their signatures were taken on the recovery memo Ext. Ka-1. The apprehended accused persons and the recovered items were sent to the Police Station. Thereafter he had gone for making search of the rest of the miscreants who had fled away from the place of occurrence. 12. Statement of PW-4 S.I. Vijendra Singh is fully corroborated from the evidence of PW-1 Head Constable Gurbachan Singh, PW-2 Head Constable Puran Singh and PW-3 S.I. A.P. Sharma, who were amongst the police party, who apprehended the miscreants on the date, time and place and were the witnesses of the recovery of the above arms and ammunitions and other articles from the possession of the accused/appellants. All the above witnesses have fully supported the version of PW-4 S.I. Vijendra Singh and the recovery memo Ext. Ka-1. 7 13. PW-5 is Nardanand Pandey, Investigating Officer of the case, who has stated that in the year 1984 he was posted as such at Police Station Ramnagar. Investigation of the crime no. 122/1984 u/s 307 I.P.C., crime no. 126/1984 u/s 25 Arms Act and crime no. 125/1984 u/s 25 Arms Act was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, inspected the place of occurrence and prepared site-plan Ext. Ka-2. After completing investigation, he submitted charge sheet Ext. Ka-3 against the accused/ appellants and co-accused persons u/s 147, 148, 149, 307 I.P.C. He also obtained sanctions for prosecuting the accused/appellants Ummed Singh and Chintamani u/s 25 Arms Act from District Magistrate, Nainital. These sanctions Ext. Ka-4 and Ka-5 have been signed by Sri R.K. Sharma, the then District Magistrate, Nainital. He identified signatures of the District Magistrate, Nainital on the sanction letters. After completing investigation, he also filed charge sheets Ext. Ka-6 and Ka-7 u/s 25 Arms Act against the accused/appellants Ummed Singh and Chintamani respectively. He also identified the signatures and handwriting of the Head Moharir Vikram Singh Bisht, who has prepared the Chik F.I.R. Ext. Ka-8, on the basis of recovery memo Ext. Ka-1. An entry was made by the said Head Moharir in the G.D. at Rapat no. 23 at 12:20 p.m. on 25.07.1984, copy of the G.D. is Ext. Ka-9. 14. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 15. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned IV Addl. Sessions Judge vide its judgment and order dated 1st 8 February 1988 has convicted the accused/appellants Chintamani and Ummed Singh as above said. 16. From the evidence as discussed above, it is proved from the evidence of PW-4 S.I. Vijendra Singh that on 25.07.1984 when this witness alongwith the other police personnel, was in search of the accused/persons in connection with crime committed at village Swaraj, District Almora, on the same day at 8:00-8:30 in the morning 6 persons armed with arms and ammunitions were seen approaching about 1 km. ahead from Amdanda from western direction of the road from Fire Line. On seeing the police party, these persons had started to flee and when the police party chased them, they have opened fire on the police party and the police party retaliated fire with their respective weapons in their defence. After enforcing required force, the accused/appellants were surrounded and apprehended with arms and ammunitions. Two miscreants were succeeded in fleeing from the spot. On being searched by the police party of the accused one country made pistol 12 bore (Ext. 1), 11 live cartridges 12 bore (Ext. 2 to 12) were recovered from the possession of accused/ appellant Chintamani. On making search of accused/appellant Ummed Singh one two barrel rifle 500 bore (Ext. 13), 15 live cartridges 500 bore (Ext. 14 to 28), one country made pistol 12 bore (Ext. 29) and 8 live cartridges 12 bore (Ext. 30 to 37) were recovered from his possession. Both of these accused/appellants have no licence for having these arms and ammunitions. Evidence of PW.4 S.I. Vijendra Singh is fully corroborated from the evidence of PW-1 Head Constable Gurbachan Singh, PW-2 Head Constable Puran Singh and PW-3 S.I. A.P. Sharma. Further the testimony of all these witnesses proves the recovery memo Ext. Ka-1. Thus, from the discussion of the evidence produced by the prosecution, the offence is proved beyond reasonable doubt that the accused/appellants have committed offence 9 punishable u/s 307 read with Section 149 I.P.C. and that of offence punishable u/s 25 Arms Act. 17. Learned Amicus-Curiae Sri I.P. Kohli, Adv. for the accused/appellant Ummed Singh and Sri R.K.S. Verma- Advocate on behalf of accused/appellant Chintamani have submitted that on the basis of the evidence discussed above the charges have been proved by the prosecution against the accused/appellant and they also do not want to challenge the conviction and sentence part and have submitted that the accused/appellants have been released from jail after completing their sentence awarded by Trial Court and thus, this appeal has been rendered infructuous. 18. At this stage, learned Addl. Govt. Advocate has submitted that a report is received from Superintendent District Jail, Almora in which it is stated that the accused/appellants have been released from Jail on 17.09.1990 after serving out the sentence awarded by the Trial Court in connection with the aforesaid crime. 19. In view of the above situation and after considering all the facts and circumstances of the case, the appeal is liable to be dismissed. 20. The appeal is devoid of merits and dismissed as such. 21. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. NCM: (Dharam Veer, J.) 18.06.2008 1