MOHD. AZAHAR Vs. STATE OF U.P.

JUDGEMENT

(1.) THE instant criminal appeal under section 374 (2) of the Code of Criminal Procedure (for short Cr.P.C.) has been preferred by the appellant against the judgement and order dated 23.9.2013 passed by the Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 3, Gonda, in Gangster Case No. 197 of 2008 having case crime no. 172 of 2007 under sections 41/411,413,419,420,467,468 IPC and section 3(1) U.P. Gangsters and Anti Social Activities (Prevention) Act ( for short ' U.P. Gangsters Act'), relating to Police Station - Paraspur, District Gonda, whereby the appellant was convicted and sentenced under sections 413 IPC with rigorous imprisonment of ten years and fine of Rs.5000/ -, in default thereof to undergo six months additional simple imprisonment, under section 419 IPC with rigorous imprisonment of three years, under section 420 IPC with rigorous imprisonment of five years and fine of Rs.5000/ -, in default thereof to undergo three months' additional simple imprisonment, under section 467 IPC with rigorous imprisonment of ten years and fine of Rs.5000/ -, in default thereof to undergo six months' additional simple imprisonment, under section 468 IPC with rigorous imprisonment of five years and fine of Rs.5000/ - in default thereof to undergo three months' additional simple imprisonment and under section 3(1) U.P. Gangsters Act with rigorous imprisonment of five years and fine of Rs.5000/ -, in default thereof to undergo six month additional simple imprisonment, and fine of Rs.5000/ -, in default thereof to undergo six months additional simple imprisonment. It was also ordered that all the sentences shall run concurrently. The accused appellant was acquitted of the charges levelled under sections 41/411 IPC.

(2.) THE facts giving rise to the present appeal are that on 7.7.2007 when S.O. Raj Kumar along with Head Constable Bechu Prasad Yadav, Constable Badruddeen, Constable Pradeep Kumar Singh, Constable Raj Kumar Mishra and Amarnath Upadhyaya, the Government Jeep Driver, were on petrol duty in Saryu Pul Bhauriganj, received a secret information from a informer that a Scorpio Car is coming in village Bihari Vashan Purva, Mauja -Bahuban Madar Majha, which seems to be of stolen. Soon, it is coming towards Charsadi crossing . If the efforts are made quickly, it may be recovered. After believing this information, S.O. Raj Kumar Singh along with police personnel reached Charsadi crossing where S.I. Ram Naresh Gautam and Constable Sudarshan Singh met. S.O. Raj Kumar Singh narrated the said story to them. The police party began to wait for the vehicle in question hiding towards north side of medical store of Dr. Ishnath. At about 1.00 p.m. a Scorpio vehicle was seen coming from the side of Rampur through Kachcha road, which was stopped by the police party and checked it. On checking it out, it was found that a person namely; Saleem Khan son of Shaukat Khan, R/o House No. 328 Tarapuri P.S. Brahmpuri District Meerut (Non Appellant) was sitting on the driver seat and another person was sitting in the adjoining seat of the driver; namely; present appellant Mohd Azhar, son of Jahid Husain, R/o Khen Nagar (Presently) Darapuri, P.S. Brahmpuri District Meerut. On being asked the accused Saleem Khan told that he and his brother -in -law Mohd. Azhar, the appellant, have brought this vehicle after stealing it from Bijnor for sale. They had come yesterday and stayed in the night in the house of a known person; namely; Raghuraj son of Baijnath Godiya, R/o Village Bihari Vaishan Purva Mauza Bahuban Madan Majha. On demand for the R.C. and Insurance of the vehicle, driver Saleem Khan told that they forged these papers. The number of vehicle UP -20 R 9075 mentioned on number plate is also fake. When the same were checked, it was found that in Registration Certificate vehicle number U.P. 20 R 9075 is mentioned and the date of registration of vehicle was shown as 2.3.05. The plate of the same number which was mentioned in the Registration Certificate was affixed in the vehicle in question. Insurance cover note was also recovered from the possession of co -accused Saleem Khan, which was shown to be valid up to 14.3.08, but there was over writing on figure 8, which created doubt. For correctness of the same, S.O. Raj Kumar Singh by his own means confirmed from District Bijnor and came to know that in District Bijnor the series of U.P. 20 R has not yet started and U.P. 20 N series is still in progress. Driving licence was also recovered from the possession of co -accused Saleem Khan having no. S -6526/MM, issued from Regional Transport Officer, Meerut and is shown to be valid till 3.6.2011. From the possession of accused appellant Mohd. Azahar driving licence no. A -5693/MRT was also recovered, which was issued on 24.9.1992 and was valid till 10.7.2007. The personal search of both accused persons was made. A mobile set (classic) and Rs. 1000/ - in cash was recovered from the possession of co -accused Saleem Khan and Rs. 100/ - in cash was also recovered from the possession of accused appellant Mohd. Azhar. The Chesis no. R -2H2D -19 -157 Engine no. BF 34G48684 was mentioned on Scorpio vehicle found from their possession. It was also disclosed by co -accused Saleem Khan that 5 -6 months ago we, both lifted a Maruti 800 car from Ghaziabad and sold it at Delhi. A recovery memo (Ext.Ka -4) was prepared on spot. It was signed by the police personnel and accused persons. A First information Report (Ext. Ka -1) was also lodged against accused persons on 7.7.2007 at 14.45 O'clock at police station Paraspur, District Gonda at case crime no. 172 of 2007 under sections 41/411/413/419/420/467/468/471 IPC on the basis of recovery memo after registering a case in General Diary of the police. Thereafter the case was investigate by the Investigating Officer. During investigation section 3(1) U.P. Gangsters Act was added after approval of District Magistrate Gonda and Superintendent of Police, Gonda. In the Gang -chart (Ext Ka -8) submitted by S.O. Raj Kumar Singh on 28.8.2007 two cases having case crime no. 172 of 2007 under sections 41/411/413/419/420/467/468/471 IPC P.S. Paraspur, District Gonda (the present case in hand) and case crime no. 755 of 2007 under section 379 IPC Mallital, District Nainital have been shown. During the course of investigation, it was found that a Scorpio No. U.P. 32 -BB -7548 has been stolen from Royal Hotel, Mallital, District Nainital, which belongs to Mohd. Tarik (P.W.1). This information has been given by one Mohd. Shahid, the driver of the said vehicle, on the basis of which a First Information Report (Ext.Ka -1) of case crime no. 755/07 was lodged by one Mohd. Sahid against unknown person under section 379 IPC at Police Station Mallital , District Nainital on 27.6.2007 at 18.15 O'clock in respect of the vehicle recovered in the present case. So this case was shown in gang chart. The said vehicle was ordered to be released in favour of Mohd. Tarik, owner of the vehicle vide order dated 23.10.2007 by the Special Judge, Gangsters Act, Faizabad. Earlier to it, the said vehicle was ordered to be released in his favour vide order dated 18.8.2007 by the Chief Judicial Magistrate -II, Gonda. But the same could not be released because of addition of section 3(1) of Gangsters Act. Therefore, Gangsters Court released the same.

(3.) TO prove its case, the prosecution examined Mohd. Tarik (P.W.1), S.I. R.K.Singh (P.W.2), Mohd. Shahid (P.W.3), Constable Bechu Prasad Yadav (P.W. 4), S.I. Ram Naresh Gautam (P.W. 5), S.I. Jagdish Prasad (P.W. 6) and S.I. Shesh Mani Yadav (P.W. 7). P.W. 1 Mohd. Tarik, who is owner of the vehicle alleged to have been recovered on 7.7.2007 from police station Paraspur, District Gonda stated on oath that his vehicle no. U.P. 32 BB 7549 was stolen from Royal Hotel, Mallital, District Nainital in between 6.00 p.m of 26.6.2006 and 10.00 a.m on 27.6.2007 when it was parked there. The FIR was lodged by Mohd. Shahid, the driver of the vehicle at P.S. Mallital, District Nainital at case crime no. 755 of 2007 under section 379 IPC. Copy of the FIR was proved by him (Ext. Ka -1). He also stated that the vehicle in question was released in his favour on the production of original registration certificate and insurance cover note (Ext Ka -2 and 3 respectively) of the vehicle in question. The said vehicle was also released by the court. P.W. 3 Mohd. Shahid is the driver of the vehicle in question, who lodged First Information Report at Police Station Mallital, District Nainital regarding theft of vehicle No. U.P. 32 BB 7549.