- (1.) APPELLANT Narendra incarcerated into jail through this jail appeal has challenged his convictions under Section 307 I. P. C. and 25 Arms Act and sentences for 8 years R. I. and fine of Rs. 10,000 (Rs. Ten thousand) on the first count and three years imprisonment and fine of Rs. 5,000 (Rs. Five thousand) on the second count recorded by Additional Sessions Judge, Court No. 4, Moradabad in Sessions Trial No. 753 of 2002, State v. Nagendra Singh and Ors. , with the prayer that his appeal be allowed and the aforesaid convictions and sentences be set aside. Further direction of trial Court is that in default of payment of fine of Rs. 10,000 (Rs. Ten thousand) he shall undergo one year further imprisonment and in default of payment of fine on the second count he shall undergo six months simple imprisonment.
(2.) THE prosecution case against the appellant is that on 6-11- 2001 at 3. 00 a. m. H. C.-52 Balbir Singh of P. S. Majhola, district Moradabad (informant) accompanied by Constable 1078 Hari Shankar Singh, Head Constable 3946 Jai Prakash armed with rifles were on a picket duty under the police circle of police out post Mandi Samiti, Moradabad when they saw four persons coming from Shankar Nagar and proceeding towards Shakti Nagar. Torches were flashed by the police personnels and those persons were warned to stand still. THE caution of the police resulted in instigation that police personnels had arrived and all of a sudden all the four culprits started firing at the police party causing injury to Head Constable Jai Prakash on his fore-head. THE culprits were chased and the present appellant was arrested on the spot and from his possession a country made pistol of. 315 bore with an empty cartridge fixed in the barrel and one live cartridge. 315 bore with marking SKFBMM 86 on its metal cap was recovered. THE three other culprits were disclosed to be Arun Singh son of Suresh Valmiki, Dinesh @ D. K. and Prem. Arrest and seizure memo were prepared on the spot in the torch light and after being read over to the accompanying police personnels their signatures were obtained on it. Accused appellant was brought to the police station at a distance of 5 Kms, south and the F. I. R. for the said offence was got registered by the informant scribe HC-52 Balbir Singh on the same day at 4. 15 a. m. as Crime No. 570 of 2001, under Section 307 I. P. C. and 25 Arms Act. Injured Constable Jai Prakash was medically examined on that day itself that 4. 45 a. m. by Dr. Rakesh Kumar P. W. 6, Investigating Officer started the investigation recorded the statement of witnesses, prepared the site plan Exhibit Ka-5, and submitted a charge-sheet Exhibit Ka-7 on 1-3-2002 as charge-sheet No. 66 of 2002 only against appellant Narendra Singh and Arun Valmiki and Prem. No charge-sheet, however, was submitted against Dinesh Kumar @ D. K. The appellants were summoned by the Judicial Magistrate/j. S. C. C, Moradabad who committed to them to the Court of sessions for trial on 10-6-2002. Additional Sessions Judge Court No. 4, Moradabad framed charges against the accused and other appellants under Section 307 I. P. C. and Section 25 (1) (B) Arms Act on 17-2-2003. The prosecution to prove its case against the accused examined six witnesses in the trial out of whom Constable 1078 Hari Shankar P. W. 1, Head Constable Jai Prakash (injured), P. W. 2, Head Constable 52 Balbir Singh (informant) P. W. 3, were the witnesses of fact. Ram Hitraj P. W. 4 (Pharmacist/record Keeper of District Hospital, Moradabad), S. I. Kuldip Singh P. W. 5 (Investigating Officer) and Dr. Rakesh Kumar (E. M. O. District Hospital, Moradabad) P. W. 6 were formal witnesses.
(3.) AFTER the prosecution evidence was over statement of the accused under Section 313 Cr. P. C. was recorded on 16-6-2006 in which the appellants took the defence of false implication. The trial Court after critically appreciating the prosecution evidence disbelieve the prosecution version in respect of two accused Arun and Prem and acquitted them. However, finding the case of the present appellant proved to the hilt it convicted the appellant for offences under Section 307 I. P. C. and 25 Arms Act and sentenced him for 8 years R. I. with fine of Rs. 10,000/- (Rs. Ten thousand) under Section 307 I. P. C. and in default of payment of fine to undergo one year further imprisonment and under Section 25 Arms Act three years imprisonment with fine of Rs. 5,000/- (Rs. Five thousand) and in default of payment of fine to further undergo six months imprisonment. Hence, this appeal.;