1. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.8.2000 passed by the Addl. Sessions Judge, Kashipur in Crl. Appeal No.8/2000, Kailash v. State, thereby dismissing the appeal and affirming the judgment and order dated 22.4.2000 passed by the J.M. Kashipur (US Nagar) in Criminal Case No.1328/99 (Case Crime No.190/90), State. v. Kailash, thereby convicting and sentencing the appellant/accused u/s 25 of the Indian Arms Act, 1959 {hereinafter to be referred as the Act} for six months’ S.I. with fine of Rs.250/- and in case of default one months’ further imprisonment was awarded.
2. I have heard learned counsel for the parties and perused the entire material available on record.
3. In nutshell, the facts of the case are that on 3.9.1990, S.O. RS Aswal along with SI Shyam Singh and SI Jagan Singh and H.C. Radhey Lal, Constable Vijay Kumar and driver Constable Kundal Singh in Govt. Jeep No.URN 4953 was busy in law and order duty. When the police party was moving towards Village Talabpur on Thakurdwara road, a persons seen coming out on pucca road and started moving towards Thakurdwara and a double barrel gun was also found hanging on his shoulder. On being suspicious, the said person was asked to stop but he started running, however he was caught at 8:50 PM by using necessary force towards Thakurdwara road. The said persons disclosed his name Kailash (appellant) and on his search, one live double barrel gun of 12 Bore and a belt made up of leather and Rexine was found in which four live cartridges (3 of No.1 and one of no.4) of 12 Bore as well as five khokha cartridges were recovered. When the appellant/accused was asked to show the licence, he could not produce the same and stated that the said gun and cartridges were given to him by his friend Chandra Mali two months ago who had stolen the same from Jaspur. The said double barrel gun along with cartridge belt along with cartridges were recovered on the spot and specimen of seal was prepared and the appellant/accused was arrested on the spot. It was also stated that due to lonely place, no public witness could be made available. Fard of recovery was made on the spot, i.e. Ex.Ka-1, on the basis of which CHIK FIR Ex.Ka- 5 was prepared by C/C Balwant Singh on 3.9.1990 at 10:45 PM. Investigation of this case was entrusted to PW3 SI R.K. Gupta, who inspected the place of occurrence and prepared the site plan Ex.Ka-2. He also obtained the sanction for prosecuting the appellant/accused from the District Magistrate, Nainital i.e. Ex.Ka-4. During investigation, the IO recorded the statements of witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-3 u/s 25 of the Act.
4. Learned J.M. Kashipur on 4.12.1990 framed the charge against the appellant/accused u/s 25 of the Act which was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined P.W.1 Constable Radhey Lal, witness of recovery, PW2 SI Shyam Singh, also witness of recovery and PW3 SI RK Gupta, IO of the case.
6. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. No oral or documentary evidence was put in defence.
7. After hearing learned counsel for the parties and appreciating the material on record, learned J.M. Kashipur vide judgment and order dated 22.4.2000 convicted and sentenced the appellant/accused as discussed above. Against the said order, the appellant preferred an appeal which too was dismissed vide judgment and order dated 24.8.2000 passed by the Addl. Sessions Judge, Kashipur, US Nagar. Feeling aggrieved, the appellant/accused has come up in appeal.
8. To prove its case the prosecution has examined PW1 Constable Radhey Lal and PW2 SI Shyam Singh, who have reiterated the version of the recovery memo Ex.Ka-1, as quoted above.
9. PW3 SI RK Gupta who stated that investigation was entrusted to him. He proved the site plan Ex.Ka-2 prepared by him. He also obtained the sanction for prosecution against the appellant/accused from the D.M., i.e. Ex.Ka-4. He recorded the statements of witnesses and on completing the investigation he filed the charge sheet Ex.Ka-3. He also proved the CHIK FIR Ex.Ka-5 prepared by HC Balwant Singh.
10. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. No oral or documentary evidence was put in defence.
11. Sri Yogesh Pandey, learned amicus curiae for the appellant/ accused argued that the prosecution has not proved its case against the appellant beyond reasonable doubt. I do not find any force in this argument because on 3.9.1990, S.O. RS Aswal along with SI Shyam Singh and SI Jagan Singh and H.C. Radhey Lal, Constable Vijay Kumar and driver Constable Kundal Singh in Govt. Jeep No.URN 4953 was busy in law and order duty. When the police party was moving towards Village Talabpur on Thakurdwara road, a person was seen coming out on pucca road and started moving towards Thakurdwara and a double barrel gun was also found hanging on his shoulder. On being suspicious, the said persons was asked to stop but he started running, however he was caught at 8:50 PM by using necessary force towards Thakurdwara road. The said persons disclosed his name Kailash (appellant) and on his search, one live double barrel gun of 12 Bore and a belt made up of leather and Rexine was found in which four live cartridges (3 of No.1 and one of no.4) of 12 Bore as well as five khokha cartridges were recovered. When the appellant/accused was asked to show the licence, he could not produce the same and stated that the said gun and cartridges were given to him by his friend Chandra Mali two months ago who had stolen the same from Jaspur. The said double barrel gun along with cartridge belt along with cartridges were recovered on the spot and specimen of seal was prepared and the appellant/accused was arrested on the spot. Since it was a lonely place, no public witness could be made available. Accordingly, the Fard of recovery was prepared on the spot, i.e. Ex.Ka-1. The I.O. also obtained the sanction from the D.M. Nainital dated 19.9.1990 u/s 25 of the Act which is perfectly valid as per law. The above said evidence also gets full support from the prosecution evidence i.e. of PW1 Constable Radhey Lal and PW2 Constable Shyam Singh, who have completed supported the prosecution case. As such in view of the above discussion, the prosecution has completely proved its case against the appellant/accused u/s 25 of the Act and the trial court was perfectly correct and justified in recording the conviction and sentence of the appellant as above discussed.
12. Learned Addl. GA also submitted that the appellant/accused has been released from jail after completing his sentence. Jailor, Haldwani Jail vide his report dated 21.3.2010 has also informed that the appellant/accused has been released from jail on 17.8.2001 after completing his sentence of six months and he has also deposited the fine of Rs.250/- on 17.8.2001.
13. It is also pertinent to mention here that this appeal has been preferred against the judgment and order dated 24.8.2000 passed by the Addl. Sessions Judge whereby the appeal preferred by the appellant/accused was dismissed and the judgment and order passed by the trial court was affirmed. As such, the second appeal by the same appellant/accused before this Court is not maintainable and on this ground also, the appeal is liable to be dismissed.
14. In view of the above said facts and circumstances of the case, the appeal is dismissed. Judgment and order dated 22.4.2000 passed by the court below, convicting and sentence the appellant/accused, which was subsequently affirmed by the Addl. Sessions Judge, Kashipur, US Nagar are hereby made affirmed. It is reiterated that the appellant/accused has been released from jail after completing the sentence awarded against him.
15. Lower court record be sent back.