MOHD RAFIQ Vs. STATE

JUDGEMENT

(1.) By way of instant criminal appeal challenge has been made to the validity and sustainability of the judgment and order of conviction dated 15.3.1991 passed by the Special Judge (DAA)/IIIrd Additional Sessions Judge, Banda in Special Trial No.109 of 1987 (State vs. Mohammad Rafiq), under Sections-392, 411 IPC, P.S. Karvi, District-Banda, arising out of Case Crime No. 137 of 1987, whereby the appellant has been sentenced to three years rigorous imprisonment under Section-392 IPC and one year rigorous imprisonment under Section-411 IPC.

(2.) Heard Sri S.M. Khan, learned counsel for the appellant as well as Sri Om Narain Tripathi, learned AGA for the State and perused the record of this appeal.

(3.) Facts relevant for adjudication of this appeal as reflected from record appear to be that an F.I.R. was lodged by the Informant PW-1 Shiv Kumar Singh s/o Ramadheen Singh of Village-Parsaunda, P.S. Pahari, District-Banda on 15.4.1987 at Police Station-Karvi at 7:15 p.m. at Case Crime No.137 of 1987 under Section-392 IPC regarding the incident of loot of his licensed rifle no.18770 by the accused Mohammad Rafiq s/o Babu Khan r/o Old Bazar, Karvi, District-Banda with allegations that it was around 6:00 p.m. on 15.4.1987, the informant had come to the shop of Shiv Kumar Bilauha s/o Sarju Prasad for sale of his grains and after weighing his grain he was resting on a sack with his licensed rifle-7 m.m. no.18770, then the accused who came from the eastern side, suddely snatched away his rifle and sped away towards the southern side. He was caught after little chase by the Informant and Shiv Kumar Bilauha s/o Sarju Prasad and one Umadatt s/o Jageshwar, Shiv Pratap @ Pandey s/o Shyam Sundar along with the looted rifle. He was taken to the police station Karvi and report was lodged. This report-Exhibit Ka-1-was lodged at Check FIR Exhibit Ka-2 at aforesaid crime number on aforesaid date at aforesaid time at police station-Karvi. The relevant entry was also noted in the concerned G.D. and a case was registered against the accused. The investigation took place and the same was conducted by one R.P. Singh, who recorded the statement of various witnesses and after visiting the spot prepared the spot map Exhibit Ka-4 and after completing the investigation filed charge-sheet, Exhibit Ka-5. Relevant to mention that in this case, the Investigating Officer was not produced by the prosecution, therefore, the investigation has been proved by producing Usman Khan PW-5. Consequently, the commital proceeding took place and the accused was charged by the trial court under Sections-392, 411 IPC. Charges were read over and explained to the accused, who denied the charges and claimed to be tried.