BRIJESH KUMAR @ VIJAI KARKI @ SUNIL Vs. STATE OF U.P.
LAWS(UTN)-2012-9-55
HIGH COURT OF UTTARAKHAND
Decided on September 17,2012

Brijesh Kumar @ Vijai Karki @ Sunil Appellant
VERSUS
State of U.P. (now State of Uttarakhand) Respondents

JUDGEMENT

Prafulla C. Pant, J. - (1.) THIS appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C.), by the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil, is directed against the judgment and order dated 01.02.1999, passed by Learned Sessions Judge Uttarkashi, in Sessions Trial No. 10 of 1994, and Sessions Trial No. 05 of 1996, whereby the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil has been convicted and sentenced to rigorous imprisonment for a period of two years under section 148 of I.P.C., rigorous imprisonment for a period of five years and directed to pay fine of 200/ - under section 307 read with section 149 of I.P.C., and rigorous imprisonment for a period of two years and directed to pay fine of Rs.100/ - under section 25 /4 of Arms Act. This appeal was received from Allahabad High Court under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. Heard Shri Pramod Tewari, Advocate/Amicus Curiae for the appellant, and Shri Vijay Khanduri, Brief Holder, for the State.
(2.) PROSECUTION story, in brief, is that on 10.02.1994, at about 11.00 a.m. accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil had joined a unlawful assembly with co -accused Ritesh Kumar @ Ritesh Sharma, Ravindra Giri @ Ravindra Singh Rawat, Teeka Ram @ Teeka Pundir, Prem Singh Gurang and Deepu @ Deepak @ Deepesh, near Nachiketatal within the limits of Police Station Kotwali, Uttarkashi. It is stated that they were armed with revolver and knives etc. Accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil said to have been armed with GUPTIE (a sharp edged weapon like a long knife). It is alleged by the prosecution that when the police party attempted to apprehend them co -accused Ritesh Kumar fired a shot at the police party in an attempt to commit murder. However, the police men namely Station officer Ashok Kumar, Sub Inspector Shyam Singh, Sub Inspector Virendra Singh, Head Constable Bulo Singh, Head Constable Ramveer Singh, Constable Pradeep Tyagi, Constable Surendra Singh, Constable Vijendra Singh, Constable Madan Mohan, Constable Dhrampal and Constable Chandra Singh, succeeded in apprehending the accused. No one from the police party received any injury. Station House Officer Ashok Kumar, after arrest of the accused and recovery of the weapons from them lodged First Information Report at Police Station Kotwali Uttarkashi, on 10.02.1994, at about 11.35 p.m. On the basis of which Crime No. 24 of 1994 was registered against all the six accused in respect of offences punishable under section 147, 148, 149, 307 /34 of I.P.C. Apart from this, separate crime numbers were registered in respect of specific arms received from each accused Crime No. 28 of 1994 was registered in respect of offence punishable under section 25 /4 Arms Act against accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil. It appears that the investigation was taken up by Sub Inspector Mahipal Singh of Reporting Outpost Dunda. Said Investigating Officer, after interrogating the witnesses, inspecting the spot and obtaining sanction from the appropriate authority filed charge sheets against all the accused for their trial in respect of offences punishable under section 147, 148, 149, 307 /34 and 412 of I.P.C., and separate charge sheets were filed in respect of the individual accused under section 25 and under section 25 /4 of Arms Act. Sessions Trial No. 10 of 1994, arose out of the main case filed against all the six accused, for their trial in respect of offences punishable under section 147, 148, 149, 307 /34 and 412 of I.P.C. Sessions Trial No. 05 of 1996 arose out the charge sheet filed against the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil, in respect of offence punishable under section 25 /4 of Arms Act. The two Sessions Trials alongwith other connected Sessions Trials were tried together by learned Sessions Judge, Uttarkashi. The then learned Sessions Judge, Uttarkashi, on 02.05.1994, framed charge of offences punishable under section 148 and 307 read with section 149 of I.P.C., against the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil, and five other accused namely Ritesh Kumar @ Ritesh Sharma, Ravindra Giri @ Ravindra Singh Rawat, Teekaram @ Teeka Pundir, Prem Singh Gurang @ Pappu and Deepu @ Deepak @ Deepesh. On said date the accused/appellant pleaded not guilty and claimed to be tried. Thereafter, when connected Sessions Trials relating to offence under the Arms Act, were committed, separate charges were framed in respect of said Act, on 03.05.1995, by learned trial court (Sessions Judge, Uttarkashi). However, before the prosecution evidence could be started, on 20.01.1999, accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil, and two others accused namely Ritesh Kumar and Deepak moved an application before the trial court expressing their desire to plead guilty as they were languishing in jail for more than four years. Said document is Paper No. 38A in the lower court record. The application in which the accused/appellant sought to plead guilty was acted upon by the trial court on 27.01.1999, and statements of the accused Brijesh Kumar was recorded. Accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil stated that he pleads guilty and confessed that he was arrested on 10.02.1994, after he joined unlawful assembly with deadly weapon alongwith other accused. He further stated that his colleague had fired shot as stated in the prosecution story. He further pleaded guilty that deadly weapon GUPTIE (a kind of long knife) was recovered from his possession. He also admitted that the fire from the revolver shot by his associate did not cause injury to any of the policemen. From the statement of the accused which is Paper No. 41A in the lower court record, it is clear that accused/appellant Brijesh Kumar @, Vijay Karki @ Sunil was clearly told by the Court that he could be convicted and sentenced, if he pleaded guilty. After the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil pleaded guilty, the trial court (Learned Sessions Judge) passed the impugned order dated 01.02.1999, convicting that accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil alongwith other two co -accused, who pleaded guilty and each one of them was sentenced to rigorous imprisonment for a period of two years under section 148 of I.P.C., and rigorous imprisonment for a period of five years and directed to pay fine of Rs.200/ - under section 307 read with section 149 of I.P.C., the accused/appellant was further convicted and sentenced to rigorous imprisonment for a period of two years and directed to pay fine of Rs.100/ - under section 25 /4 of Arms Act. 1973, provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
(3.) IN view of the said provision, the trial court has committed no error of law in recording the conviction of the accused/appellant Brijesh Kumar @ Vijay Karki @ Sunil.;


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