ANIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 07.05.1999, passed by IVth Additional Sessions Judge Nainital, in Sessions Trial No. 09 of 1998, Sessions Trial No. 10 of 1998 and Sessions Trial No. 12 of 1998, whereby the accused/appellants Anil Kumar and Salim have been convicted under section 307 of I.P.C., and under section 25 Arms Act. Each one of them has been sentenced to rigorous imprisonment for a period of seven years under section 307 I.P.C., and rigorous imprisonment for a period of five years under section 25 Arms Act.

(2.) Heard learned counsel for the parties and perused the lower court record.

(3.) Prosecution story, in brief, is that on 30.06.1997, Station Officer Praveen Kumar Tyagi (PW2), Sub Inspector Om Pal Singh and Inspector Mohd. Hanif (PW1) alongwith Constables got information that some miscreants have gathered near Kalyanpuri Tiraha within the limits of Police Station Jaspur. They proceeded to said place in search of the miscreants so that they may be prevented from committing any crime. When they reached near the spot the miscreants believing that they have been surrounded by the police, and opened indiscriminate firing at the police party. Prosecution case is that luckily no fire hit the police men. Thereafter, the policemen at about 8.30 p.m. over powered the three miscreants who disclosed their names Anil Kumar (present appellant no.1), Salim (present appellant no.2) and Bablu @ Ramesh . On the search of their person a pistol of 315 bore alongwith two live cartridges was recovered from the accused Anil Kumar, and 12 bore pistol alongwith two live cartridges was recovered from the other accused Salim. The police prepared recovery memo (Ex A-1) and took the three accused into custody. On the basis of recovery memo, chick First Information Report (Ex A- 2) was prepared at Police Station Jaspur on 30.06.1997 at 10.25 p.m. and Crime No. 262 of 1997 was registered in respect of offence punishable under section 307 of I.P.C. Simultaneously, Crime No. 263 of 1997 was registered in respect of offence punishable under section 25 Arms Act, against the accused Anil Kumar, and the Crime No. 265 of 1997 relating to offence punishable under section 25 Arms Act, was registered against the accused Salim. After investigation made by Sub Inspector Anil Kumar Tyagi (PW4), charge sheet was filed against the accused/appellants Anil Kumar, Salim and the third accused Bablu @ Ramesh, for their trial in respect of offence punishable under section 307 of I.P.C. Separate charge sheets were filed in respect of offence punishable under section 25 Arms Act. Sessions Trial No. 09 of 1998 has arisen out of the charge sheet in respect of offence punishable under section 307 of I.P.C., and other Sessions Trial No. 10 of 1998 and Sessions Trial No. 12 of 1998 have arisen out of the crime registered in respect of offence punishable under section 25 Arms Act, after the Magistrate committed the cases to the court of Sessions for trial.