Mujjammil and Others vs State of Uttarakhand

Umesh Chandra Dhyani, J.

Present criminal appeal has been filed by the appellants against the judgment and order dated 04.06.2003 passed by the Addl. Sessions Judge/3rd FTC, Rudrapur, Udham Singh Nagar, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for a period of 1 1/2 years each alongwith a fine of Rs. 1000/- each under Section 307 IPC. Both the appellants were also convicted and sentenced to undergo rigorous imprisonment for a period of 1 year under Section 25 Arms Act. However, accused-Lakhan was acquitted from the charges levelled against him.

An FIR was lodged against the appellants and another for the offences punishable under Section 307 IPC and Section 25 Arms Act on 22.12.2001 at Police Station Rudrapur, District Udham Singh Nagar. The incident took place on the selfsame day at 11:15 AM. A recovery memo was prepared and on the basis of the same, a chick FIR was lodged.

After investigation of the case, a charge-sheet was submitted against the accused persons.

The case was committed to the Court of Sessions. When the trial began and prosecution opened its case, charges against the accused were framed, to which, they pleaded not guilty and claimed trial.

PW1 A.S.I. Dev Singh, PW2 Head Constable Harswaroop Singh and PW3 Mohd. Hanif were examined on behalf of the prosecution. The prosecution also proved the arrest memo, recovery memo, site-plan, chargesheet, sanction of District Magistrate and chick FIR etc.

Incriminating evidence was put to the accused under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence.

After conclusion of the trial, learned trial court, vide judgment and order dated 04.06.2003, convicted the accused-appellants under Section 307 IPC and Section 25 Arms Act and sentenced them appropriately. Aggrieved against their conviction and sentence, present criminal appeal was preferred by the appellants.

It is pertinent to mention here that this Court, vide order dated 05.08.2014, had observed that appellant No. 2-Brahma has already undergone the sentence awarded to him by the trial court and, it was accordingly directed that if the accused-Brahma is not required to be detained in any other criminal case, he shall be set at liberty forthwith.

Learned counsel for the appellant No. 1 Mujjammil confined his prayer only to the extent that since he (Mujjammil) is in jail since 19.04.2014 and it is a case under Section 307 IPC, but no police personal has sustained injury, therefore, the sentence awarded to the appellant-Mujjammil be reduced to period of one year or the period already undergone by him.

The FIR was lodged against the appellants on 22.12.2001 at 11:15 AM. The incident took place on the selfsame day at 2:55 PM. There is, therefore, no delay in lodging the FIR. Recovery memo contained the signatures of the police personnel as well as the thumb impression of the accused-appellants.

PW1, PW2 and PW3 have supported the prosecution story. They were cross-examined at length, but nothing came in their cross-examination, so as to suspect their testimony. In other words, the evidence tendered by PW1, PW2 and PW3 was acceptable. It is true that the public witness could not be procured by the prosecution. The Hon''ble Supreme Court has said, time and again, that it is the responsibility of the police personnel to have tried to procure the public/independent witness, but in case the public witnesses are not available, the prosecution cannot be faulted for the same. The same is true in this case. As has been told earlier, PW1, PW2 and PW3 have been cross-examined at length, but nothing has come in their cross-examination to suggest that they were untruthful witnesses. The testimony of police personnel can be relied upon, if they inspire confidence and are trustworthy. The District Magistrate has granted permission to prosecute the appellants, vide order dated 25.01.2002. After obtaining the sanction of District Magistrate, the chargesheet was submitted before the court below.

The trial court also dealt with the prosecution evidence in its own way to come to the conclusion that the aforesaid offences were proved against the appellants beyond a shadow of reasonable doubt. The prosecution evidence was correctly appreciated by the trial court. There appears to be no reason to differ from the findings arrived at by the trial court.

Accordingly, the conviction of the appellants under Section 307 IPC and Section 25 Arms Act is affirmed.

At this stage, learned counsel for the appellant-Mujjammil submitted that since he is in jail since 19.04.2014 and by that analogy, he has served out the sentence of more than one year and only about 5 months are left, hence, the sentence awarded to the appellant-Mujjammil be reduced from 1 1/2 years to 1 year.

After considering the overall conspectus of things, this Court is inclined to agree with the submission of learned counsel for the appellant-Mujjammil. This Court is of the opinion that since the appellant-Mujjammil is in judicial detention for more than one year, he should be sentenced to undergo one year''s rigorous imprisonment alongwith a fine of Rs. 1000/-, instead of 1 1/2 year''s rigorous imprisonment and a fine of Rs. 1000/-.

Criminal Appeal preferred by the appellants is, therefore, partly allowed. The conviction awarded to the appellant-Mujjammil under Section 307 IPC and Section 25 Arms Act is affirmed. The sentence awarded to him is, however, modified to the extent that he (i.e. Mujjammil) shall undergo rigorous imprisonment for a period of one year alongwith a fine of Rs. 1000/- under Section 307 IPC and shall also undergo rigorous imprisonment for a period of one year under Section 25 Arms Act. Both the sentences shall run concurrently. In default of payment of fine under Section 307 IPC, he shall further undergo simple imprisonment for a period of two months. The period already undergone by the appellant shall be adjusted towards the sentence modified by this Court.

Since the appellant-Mujjammil has served out the sentence as modified by this Court, it is accordingly directed that if the accused-Mujjammil is not required to be detained in any other criminal case, he be set at liberty forthwith, subject to payment of fine by him.

Let a copy of this judgment alongwith lower court record be sent to the Court below for ensuring compliance of this order.