Devendra Prasad v. State of Uttarakhand

Shri B.S. Adhikari, Advocate/Amicus Curiae, present for the appellants. Shri S.S. Adhikari, A.G.A., with Shri Shivanand Bhatt ,Brief Holder, present for the State Alongwith Criminal Appeal No. 339 of 2007

#1. Rajendra Prasad, S/o Shri Joga Ram 2. Devendra Prasa, S/o Joga Ram Both R/o Village Udai Maji Gaon P.O. Devalthal , District Pithoragarh . ……….Appellants (in jail) Versus State of Uttarakhand …………Respondent Shri T.P.S. Takuli, Advocate, present for the appellants. Shri S.S. Adhikari, A.G.A., with Shri Shivanand Bhatt, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. All these three appeals are directed against the judgment and order dated 10.07.2007, passed by Special Judge (Gangsters Act)/Sessions Judge, Nainital, in Sessions Trial No. 70 of 2006, 3 whereby convicted accused/appellants Mobin, Devendra Prasad, Rajednra Prasad, Aamiul, and Prem Kumar under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (for short Gangsters Act, 1986),and sentenced each of the convicts to rigorous imprisonment for a period of seven years, and directed to pay fine of ` 20,000/- (Rupees twenty thousand only) in default of payment of fine defaulter is required to undergo further six months simple imprisonment. It appears that appellants Devendra Prasad, Rajendra Prasad have filed two appeals against the same judgment through two different lawyers. The criminal appeal no. 302 of 2007, is filed by remaining three accused/appellants Mobin, Prem Kumar, Aamiul. Since, all the appeals are directed against the same judgment as such the same are taken up together, and being disposed of this common judgment.

#2. Heard learned counsel for the parties, Amicus Curiae, and perused the entire record.

#3. Prosecution story, in brief, is that the 4 accused/appellants were allegedly involved in robbery, dacoity, and thefts by making a gang, and crime nos. 286 of 2006 (relating to offence punishable under section 395, 398, and 412 IPC), crime no. 287 of 2006 (under section 307 IPC), crime no. 288 of 2006 (under section 25 Arms Act, against Mobin), crime no. 289 of 2006 (relating to offence punishable under section 4/25 Arms Act, against Devendra Prasad), crime no. 290 of 2006 (under section 4/25 of Arms Act, against Aamiul), crime no. 291 of 2006 (under section 4/25 of Arms Act, against Prem Kumar), and crime no. 292 of 2006 (under section 4/25 of Arms Act, against Rajendra Prasad) were registered at police station Champawat. Station House Officer Kotwali Champawat, made a report on 10.10.2006, through report no. 5 at 5.50 a.m., in which he reported that the passengers of bus no. UAO7K 6634 on its way from Delhi to Jhulaghat were looted, and search was made for the accused who were chased on their way from village Jhalakudi and Belghat, cought after encounter with the police. After their arrest, the accused/appellants disclosed their names and recoveries of looted property were made from them regarding which memorandums 5 were prepared in connection with the crimes mentioned above. A separate crime no. 293 of 2006 was registered against accused/appellants under section 2/3 of Gangsters Act, at Police Station Champawat on 10.10.2006 at 18:55 P.M.. Crime was investigated by Sr. Sub- Inspector Vipin Chandra Pant of Police Station Champawat, who after interrogation of the witnesses submitted charge sheet (Ex. A8) against all the five accused/appellants Mobin, Devendra Prasad, Rajendra Prasad, Prem Kumar, and Aamiul for their trial in respect of offence punishable under section 2/3 Gangsters Act.

#4. Learned Special Judge(Gangster Act,)/Sessions Judge, Nainital, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 of Cr.P.C., and after hearing, framed charge of offence punishable under section 2/3 Gangster Act, against all the five accused/appellants namely Mobin, Rajendra Prasad, Devendra Prasad, Aamiul, and Prem Kumar on 30.11.2006, who pleaded not guilty and claimed to be tried. 6

#5. On behalf of the prosecution P.W.1 S.I. Brijmohan,P.W.2 Incharge Inspector R.S. Tolia, P.W.3 Constable Naresh Kumar, P.W.4 Hayat Ram, and P.W.5 Vipin Chandra Pant, Investigating Officer were got examined. The evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false. However, no evidence in defence was adduced. After hearing the parties, the trial court found all the five guilty of charge of offence punishable under section 2/3 Gangsters Act, and sentenced each one of them to rigorous imprisonment for a period of seven years, and also directed to pay fine of ` 20,000/- (Rupees twenty thousand only) in default of payment of fine the defaulter is required to undergo further simple imprisonment for a period of six months. Aggrieved by said judgment and order dated

10.07.2007, these three appeals are filed by the convicts.

#6. From the evidence adduced by the witnesses regarding the criminal history of the accused/appellants following cases were found registered against them at police station 7 Champawat:- As against accused Mobin (i) Crime no. 286 of 2006, relating to offences punishable under section 395, 397, 398, 412 IPC. (ii) Crime no. 287 of 2006, relating to offence punishable under section 307 IPC. (iii) Crime no. 288 of 2006, relating to offence punishable under section 25 Arms Act. As against accused/appellant Devendra Prasad: (i) Crime no. 286 of 2006, relating to offences punishable under section 395, 397, 398, 412 IPC. (ii) Crime no. 287 of 2006, relating to offence punishable under section 307 IPC. (iii) Crime no. 289 of 2006, relating to offence punishable under section 4/25 of Arms Act. As against accused/appellant Aamiul (i) Crime no. 286 of 2006, relating to offences punishable under section 395, 397, 398, 412 IPC. (ii) Crime no. 287 of 2006, relating to offence punishable under section 307 IPC. (iii) Crime no. 290 of 2006, relating to offence punishable under section 4/25 of Arms Act. 8 As against accused/appellant Prem Kumar (i) Crime no. 286 of 2006, relating to offences punishable under section 395, 397, 398, 412 IPC. (ii) Crime no. 287 of 2006, relating to offence punishable under section 307 IPC. (iii) Crime no. 291 of 2006, under section 4/25 Arms Act. As against accused/appellant Rajendra Prasad: (i) Crime no. 286 of 2006, relating to offences punishable under section 395, 397, 398, 412 IPC. (ii) Crime no. 287 of 2006, relating to offence punishable under section 307 IPC. (iii) Crime no. 292 of 2006,relating to offence punishable under section 4/25 of Arms Act.

#7. Clause (b) of section (2) of Gangsters Act, defines word “Gang” as a group of persons, who acting either singly or collectively, by violence , or threat or show of violence, or intimidation, or coercion, or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself of any other person, indulge is anti- 9 social activities whether enumerated in clause (i) of clause (xvi). Clause (c ) of section 2 of the Act, provides that “Gangster” means a member or leader or organiser of gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b) , whether before or after the commission of such activities or harbours any person who has indulged in such activities. Section (3) of the act, provides that gangsters shall be punished with imprisonment of either description for a terms which shall not be less than two years and which may extend to ten years and also with fine not less than five thousand rupees.

#8. From the evidence of P.W.4 Hayat Ram, it is proved that the passengers of bus registration no. UAO7K 6634, which was on its way from Delhi to Jhulaghat were looted on 10.10.2006, by the five miscreants. The witness has further stated that the policemen apprehending accused/appellants Devendra Prasad, Rajendra Prasad, Mobin, Aamiul and Prem Kumar recovered the unlicensed arms, and allegedly recovered looted property. 10

#9. P.W.2 Sub-Inspector R.S. Tolia, is the complainant, who got registered first information report (Ex.A2) against the five accused/appellants under section 2/3 of Gangsters Act. His statement read with statement of P.W.1 Sub-Inspector Brijmohan , P.W.3 Naresh Kumar proves on the record that the accused/appellants had the criminal history. Their activities were covered as defined under clause (c ) of section (2) of Gangsters Act.

#10. Having reassessed the entire evidence on record, and after considering submissions of learned counsel for the parties, and learned Amicus Curiae, this Court agrees with the findings recorded by the trial court. Therefore, the conviction recorded by the trial court against the five accused/appellants namely Mobin, Rajendra Prasad, Devendra Prasad, Aamiul, and Prem Kumar under section 2/3 of Gangsters Act, deserves to be affirmed. However, on the point of sentence, considering the facts and circumstances of the case, this Court is of the view that it would meet at the ends of justice if the sentence of the 11 accused/appellants reduced imprisonment for a period of four years, and to fine of ` 5,000/- (Rupees five thousand only) against each one of them. Accordingly, appeals are partly allowed. Conviction recorded by the trial court under section U.P. Gangsters and Anti Social Activities (Prevention ) Act, 1986 passed by the Special Judge/Sessions Judge, Nainital in Sessions Trial no. 70 of 2006 is affirmed. But the sentence awarded to each of accused/appellants is reduced to rigorous imprisonment for a period of four years and to fine of ` 5,000/- (Rupees five thousand only), and in default of payment of fine the defaulter shall undergo further imprisonment for a period of two months. Lower court record alongwith copy of this judgment be sent back to the trial court. A copy of this judgment be sent to Superintendent of the jail where the accused/appellants are serving out the sentence. Parul (Prafulla C. Pant,J.) 10.12.2010