Decided on March 19,2013

DHARMENDRA Respondents


Alok Singh, J. - (1.) JUDGMENT and order dated 21.05.2007 passed by Sessions Judge, Nainital in Sessions Trial No. 39 of 2005 is under challenge in the present appeal whereby learned Sessions Judge was pleased to acquit the respondent No. 2 for the offences punishable under Section 302, 394, 411 IPC as well as offence punishable under Section 3(1) of the Uttar Pradesh Gangsters and Anti -Social Activities (Prevention) Act, 1986) (hereinafter referred to as "the Gangster Act") and was further pleased to acquit respondent No. 1 for the offence punishable under Section 302, 394 IPC as well as under Section 3(1) of the Gangster Act, however, convicted and sentenced the respondent No. 1 to undergo 3 -year rigorous imprisonment and to pay fine of Rs. 10,000/ - failing which to undergo three months additional simple imprisonment for the offence under Section 411 IPC. Brief facts of the case are that PW1 Suresh Pal, informant, lodged an FIR with the police station Ramnagar to the effect that in the evening of 25.06.2005 at about 08.00 p.m. his son Rahul went along with Kamal respondent No. 2 on motorcycle bearing No. UA 04 B 9612; after reaching near the school gate two other boys and one girl met them; thereafter, accused Kamal was sent back, however, Rahul proceeded ahead in the company of those two boys and girl and on being asked Kamal was unable to answer as to where Rahul had gone with those boys and girl; on search, dead body of Rahul was found at 07.00 a.m. on 26.06.2005 near Badesha Stone Crusher, village Jeevandpur.
(2.) HAVING registered the FIR, police started investigation and submitted a charge -sheet against the respondents for the offences punishable under Section 302, 394, 411 IPC and under Section 2/3 of the Gangster Act. Learned Sessions Judge, after examining the entire material, passed the judgment under appeal. Pw1 informant stated that he was running a confectionery and tea shop near Peerumadara crossroads and on 25.06.2005, when he came to his shop in the noon after taking lunch, Rahul told him that both accused had consumed liquor in the shop whereupon Pw1 scolded both of them, however, in the evening, respondent No. 2 came to his shop once again and asked Rahul to drop him at his residence. Pw1 permitted his son to drop respondent No. 2 on his motorcycle. Thereafter, Rahul went to drop him but did not return and on inquiry, respondent No. 2 narrated that Rahul and he were going on motorcycle and when they reached near the school gate two boys and one girl standing there had signaled them to stop and thereafter, Rahul had gone somewhere with those boys and girl on his motorcycle and he came back.
(3.) LEARNED Sessions Judge, after examining the entire material on record, has recorded a clear cut finding that both respondents have no criminal record, therefore, provisions of the Gangster Act are not applicable. Learned Sessions Judge has disbelieved the statement of PW1 by observing that in the normal circumstances when both the accused persons were found consuming liquor in the shop, it would be highly improbable for PW 1 to have permitted his son, aged about 15 year, to drop respondent No. 2 on motorcycle in the evening after 2 -3 hours. Learned Sessions Judge also disbelieved the statement of Chanda PW2, who was said to be of the watchman of Kisan Inter College.;

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