SHAKIL Vs. STATE OF OF UP

JUDGEMENT

(1.) Present appeal has been preferred by accused appellants against the judgment and order dated 17.11.1999 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No. 139 of 1996 whereby the accused appellants were tried for the offences punishable under Section 307 read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 1000/- each. In default of payment of fine, they have further been ordered to undergo rigorous imprisonment of one year. In Sessions Trial Nos. 140/96, 141/96 and 142/96 accused Shakil, Ajju and Mukhtiar respectively were convicted under Section 25 of the Arms Act and were sentenced to undergo rigorous imprisonment for three years each. Both the sentences have been ordered to run concurrently. However, accused Shakil died during the pendency of appeal, hence appeal on behalf of accused appellant Shakil stands abated.

(2.) Brief facts as per the prosecution case are that on 30.08.1993 S.S.I. K.P. Singh alongwith S.I. Gyan Singh, S.I. Pratap Singh (PW-1) and other police officials proceeded for patrolling towards Ramnagar Road Cheema Chauraha on receiving a secret information with regard to the commission of some serious crime, in a police vehicle. On the way Head constable Karan Singh and Head Constable Chandrapal Singh were also joined in the police party. They tried to join some witnesses from the public also but none agreed to join on account of chaos and terror prevailing in the area. When police party reached Cheema Chauraha, they found four accused persons namely Shakil and Ajju carrying countrymade pistol in their hands while Mukhtiar and Hasin Ahamad (non-appellant) carrying knife in their hands. All of them were threatening shopkeepers and industrialists that they will have to pay monthly tax to those accused persons. In case, anybody offered resistance, they will face dire consequences. Saying so accused opened fire and created terror in the public. People started running and shouting for seeking help to save them. The doors of the houses were closed. Shopkeepers started closing their shops. The traffic on the Cheema chauraha was completely disrupted. Meanwhile, S.S.I. K.P. Singh challenged these miscreants and tried to apprehend them with the help of police force. However, accused persons opened fire on the police party with intention to kill them. However, police officials were able to save themselves. When police party tried to encircle the accused persons, they tried to escape in a Maruti car. However, accused was overpowered and apprehended by the police party alongwith their weapons.

(3.) Before taking search of them, the police officials again tried to procure the public witnesses but due to terror, none agreed. Moreover, due to terror created by the accused persons no one was available at the site. On search, accused Shakil was found having a 12 bore countrymade pistol and one live cartridge. Accused appellant Ajju was found having a 315 bore countrymade pistol and two live cartridges, while accused appellants Mukhtiar and Hasin Ahmad (non-appellant) were found having knife of prohibited length each with them. All the recovered articles were taken into possession and a Maruti Car bearing No. DNA 8835 white-coloured which was used by the accused for escape, was also taken into the possession vide recovery memo Ex.Ka-1 which was prepared on the spot. On enquiry, the accused persons could not show any licence and papers for the weapons as well as Maruti Car. The chick report was lodged at the police station, Kashipur and the case under Section 307 read with 34 I.P.C. bearing case crime No. 948/93 was registered against all the accused persons, while case crime No. 949/93 to 952/93 were registered against all the four accused persons separately under Section 25 of the Arms Act. G.D. Ex.ka-3 was entered and the site plan Ex.Ka-4 of the place of the occurrence was prepared. The sanction of the District Magistrate to prosecute all the four accused for the offences under Section 25 of the Arms Act was obtained.