GOPAL DASS Vs. STATE OF UP

JUDGEMENT

(1.) This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 15.10.1998 passed by the 5th Upper Sessions Judge, Nainital in Sessions Trial No. 160 of 1992, State v. Gopal Dass & Anr., whereby the appellant accused Gopal Dass has been convicted under Sections 307 read with Section 34 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for four years and fine of Rs. 2000/-, in default to undergo two months' simple imprisonment. Appellant accused has also been convicted under Section 26 of the Indian Forest Act and sentenced to undergo R.I. for six months. However, the appellant accused was acquitted of the charge of offence punishable under Section 379/411 IPC. Co-accused Tarak Mandal has also been acquitted of the charge of offence punishable under Section 307 read with Section 34 IPC and 379/411 IPC and Section 26 of the Indian Forest Act.

(2.) In brief, the prosecution case is that on 20.1.1990, SI Vijendra Sharma along with SI Shoki Ram (PW1), Constable Nanhe Babu (PW4), Constable Nand Kishore and Constable Juhur Hussain in a Govt. Gypsy No. UP02- 1447 driven by Constable Anil Kumar was on patrolling duty. At about 2.45 am, when they reached on Amaria chauraha, one truck came in a high speed from the side of Khatima Chorgalia to whom they asked to stop. But the driver of the said vehicle did not stop the vehicle and had taken the truck on a high speed towards Amaria road. The truck was loaded with the woods. So the police party chased the said truck and when the police party tried to overtake that truck, one person fired from the said truck. He and the Constable Nanhe Babu also fired two rounds on the truck. Thereafter at some distance, the said truck had fallen down. Four persons and the driver came out from the said truck. The appellant accused was arrested on the spot but the rest of the four miscreants were successful in fleeing away from the spot. The appellant accused told the name of one of the miscreant who ran away from the spot as Tarak Mandal (acquitted by the trial court). 102 pieces of Khairwood were recovered from the said truck. The recovery memo Ex. Ka-1 was prepared on the spot. On the basis of this recovery memo, an FIR was lodged with the police station Jehandabad on 20.1.1990 at 10.30 am. Chick FIR Ex. Ka-8 was prepared by Constable Clerk Pyare Lal. Entry was also made in the GD. Copy of GD is Ex. Ka-2.

(3.) Investigation of this case was entrusted to S.I. PW2 SI Man Singh. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plans Ex. Ka-3 to Ka-5. The I.O. also recorded the statements of the witnesses during the course of investigation and after completing the investigation filed the chargesheet Ex. Ka-7 against the appellant accused and the co-accused (acquitted by the trial court).