# State of U.P v. Mukhtar Ansari

- **Citation:** (2022) 9 ILRA 1326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-23
- **Case number:** Government Appeal No. 779 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mukhtar-ansari-48992
- **Pages:** 14

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Criminal Law
Amend Act, 2018 - Section 7 - U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Sections 2, 2(b),
2(c), 3 & 3(1) - Indian Penal Code, 1860 -
Sections 141, 147, 148, 149, 302, 307, 308,
325, 352, 380, 394, 392, 411, 448, 454, 504
& 506, - Explosive Act, 2008 - Section 5 -
Arms Act, 1959 - Sections 3, 7, 7, 12 & 25 -
Government Appeal - against order of Acquittal -
if the several FIRs were registered or Chargesheets were filed and the person is member of a
gang - it fulfils the ingredients of section 2 of the
Gangsters Act, and he can be punished under
section 3 - the acquittal of the accused person for
turning witness hostile or otherwise is not a
material aspect - Gang chart was proved in the
court as documentary evidence - Trial Court has
grossly erred in acquitting the accused person -
accused is found guilty for offence - impugned
order set-aside - accused respondent is sentenced
for five years of rigorous imprisonment with fine of
Rs. 50,000/- - Appeal Allowed. (Para 27, 28)
9 All. State of U.P. Vs. Mukhtar Ansari
1327
Appeal allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,994 of 47,816. This is a partial read: ask again with offset=39994 for what follows._

1326 INDIAN LAW REPORTS ALLAHABAD SERIES
its entirety for determining whether an
alternative hypothesis, other than the guilt
of accused appellant exists on facts. The
plea of last seen based on the statement of
P.W.-5; without subjecting his statement to
closer scrutiny; apparent fallacy in the
recovery made on the pointing out of the
accused so as to connect him with the
offence; improper evaluation of motive
based on evidence placed on record, clearly
renders the judgment of the trial court
unsustainable in the eyes of law. Even legal
principles have not been correctly applied
by the trial court while convicting and
sentencing the accused-appellant to life
imprisonment for the offence punishable
under Section 302 I.P.C.

56. In view of the above discussions,
we hold that the impugned judgment and
order of conviction passed by the trial court
cannot be legally sustained and is accordingly
set aside. The accused-appellant is clearly
entitled to benefit of doubt. As he has already
suffered incarceration of almost 15 years
since the date of his conviction, he is entitled
to be released forthwith.

57. Accordingly, the present appeal
stands allowed.

58. The accused-appellant shall be
released on compliance of Section 437-A
Cr.P.C., unless he is wanted in any other case
forthwith.

59. We record our appreciation for the
able assistance rendered in the case by Mr.
Kumar Kartikay, learned Amicus Curiae, who
would be entitled to his fee from the High
Court Legal Service Authority, quantified as
Rs. 15,000/-

60. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Bareilly henceforth, who shall transmit the
same to the concerned Jail Superintendent
for release of the accused-appellant in
terms of this judgment.
----------
(2022) 9 ILRA 1326
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.09.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Government Appeal No. 779 of 2021

State of U.P. ...Appellant
Versus
Mukhtar Ansari ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondent:
Abhishek Misra, Karunesh Singh, Satendra
Kumar (Singh)

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Criminal Law
Amend Act, 2018 - Section 7 - U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Sections 2, 2(b),
2(c), 3 & 3(1) - Indian Penal Code, 1860 -
Sections 141, 147, 148, 149, 302, 307, 308,
325, 352, 380, 394, 392, 411, 448, 454, 504
& 506, - Explosive Act, 2008 - Section 5 -
Arms Act, 1959 - Sections 3, 7, 7, 12 & 25 -
Government Appeal - against order of Acquittal -
if the several FIRs were registered or Chargesheets were filed and the person is member of a
gang - it fulfils the ingredients of section 2 of the
Gangsters Act, and he can be punished under
section 3 - the acquittal of the accused person for
turning witness hostile or otherwise is not a
material aspect - Gang chart was proved in the
court as documentary evidence - Trial Court has
grossly erred in acquitting the accused person -
accused is found guilty for offence - impugned
order set-aside - accused respondent is sentenced
for five years of rigorous imprisonment with fine of
Rs. 50,000/- - Appeal Allowed. (Para 27, 28)
9 All. State of U.P. Vs. Mukhtar Ansari
1327
Appeal allowed. (E-11)

List of Cases cited:

1. St. Vs Abhay Singh & ors., Crime No.0428 of
1999, judgment dated 06.09.2018,

2. Geeta Devi Vs St. of U.P. & ors., Criminal
Appeal No.78 of 2022, dated 18.01.2022,

3. Vishnu Dayal & ors. Vs St. of U.P.& anr., 2007
(8) ADJ 716,

4. Udham Singh & anr. Vs St. of U.P. & ors.,
2008 (2) JIC 227 (All).

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present appeal under Section
378 CrPC has been filed against the
judgment and order dated 23rd December,
2020 passed by the Special Judge,
M.P./M.L.A. Additional Sessions Judge,
Court No. 19, Lucknow in Criminal Case
No.199 of 2000, arising out of Crime
No.0428 of 1999, under Section 2/3 of The
Uttar Pradesh Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
(hereinafter referred to as "Gangsters Act")
lodged
at
Police
Station
Hazratganj,
District Lucknow by means of which the
accused-respondent has been acquitted of
the charge.

2. This Court, vide order dated
27.04.2021, granted leave and admitted the
appeal.

3. Charge-sheet was filed against the
accused-respondent and 24 other coaccused in Crime No.0428 of 1999, under
Section 2/3 Gangsters Act; co-accused,
Akbar Husain, Ram Kumar Singh, Guddu
Singh, Rajeev Singh alias Raju, Amit
Kumar Rawat, Amit Rai, Anil Kumar
Tiwari, Sanjeev Dwivedi alias Ramu,
Himanshu Negi, Milit Gaud and Surendra
Kumar were acquitted by this Court in
different applications/petitions filed by
them; co-accused Abhay Singh, Rintu
Singh alias Vijay Kumar Singh and Manoj
Verma were acquitted, whereas co-accused
Manish Singh, Arun Kumar Upadhyay alias
Babaloo, Chandra Prakash Singh and
Chandan Singh Negi had died and,
therefore, case against them got abated;
Pawan
Kumar
Upadhyay,
Pushpendra
Singh and Sandeep Singh Yadav were
discharged by the trial Court from offence
under Section 2/3 Gangsters Act; trial of
co-accused, Shoeb Kidwai, Indra Dev
Mishra and K.D. Singh alias Ajay Prakash
were separated.

4. On the basis of complaint of
Station House Officer, Tejpal Singh
Verma, the FIR came to be registered
under Section 2/3 Gangsters Act, alleging
therein that the accused-respondent and
other co-accused, named in the FIR, is a
gang, which commits heinous offences,
including murder, extortion, kidnapping
and abduction etc; one Suresh Kumar,
notorious criminal, along with his 3-4
accomplishes, was heard saying that
Abhay Singh, who was imprisoned, had
got Shri R.K. Tiwari, the then Jail
Superintendent, killed in busy Hazratganj
area of Lucknow; accused, Abhay Singh
and the accused-respondent run their
empire of crime from jail; eye-witness,
Vinod was asked not to depose in the said
case, in support of the prosecution; he
was given threats for which FIR at Crime
No.0413 of 1999 came to be registered
under Sections 504 and 506 IPC on
30.04.1999. It was further said that the
gang-members are dreaded criminals,
who commit crime in organized manner
for
accumulation
of
wealth
for
themselves and members of the gang;
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
they strike terror in hearts and minds of
the people and no-one dares to lodge FIR
even against members of the gang;
general public feels in-secured and lives
in fear in Lucknow and adjoining areas;
on 04.02.1999, Jail Superintendent, Shri
R.K. Tiwari was killed in broad-day-light
in Hazratganj busy area for which FIR at
Crime No.0106 of 1999, under Sections
302 and 307 IPC came to be registered at
Hazratganj Police Station; the following
other cases are registered against the
gang:-

"1.Crime No.0161 of 1990, under
Sections 454 and 380 IPC lodged at Police
Station Hasanganj;

2. Crime No.064-A of 1999 , under
Sections 141, 148 and 352 IPC lodged at
Police Station Hasanganj;

3. Crime No.00494 of 1995, under
Sections 148, 149 and 307 IPC read with
Section 7 Criminal Law Amend Act;

4. Crime No.0473 of 1995 under
Section 2/3 Gangsters Act;

5. Crime No.020 of 1998, under
Section 2/3 Gangsters Act, Police Station
Hasanganj;

6. Crime No.055A of 1995, under
Sections 147, 148, 149 and 307 IPC;

7. Crime No.0466 of 1995, under
Sections 323 and 504 IPC;

8. Crime No.0514 of 1995, under
Sections 147, 148, 149 and 307 IPC;

9. Crime No.09 of 1996, under
Sections 147, 148, 149 and 302 IPC read
with Section 5 Explosive Act;

10. Crime No.0972 of 1998, under
Sections 147, 308 and 325 IPC;

11. Crime No.0115-A of 1995, under
Section 307 IPC;

12. 080 of 1999, under Sections 448
and 506 IPC;

13. Crime No.0167 of 1999, under
Section 3/25 Arms Act;

14. Crime No.0205 of 1997, under
Sections 147, 148, 149 and 307 IPC'

all the said cases were lodged at
Police
Station
Hazratganj,
District
Lucknow.

15. Crime No.0109 of 1999, under
Section 394 IPC;

16. Crime No.01002 of 1998, under
Sections 392 and 411 IPC lodged at Police
Station Hasanganj;

17. Crime No.049 of 1999, under
Section 392 IPC;

18. Crime No.0224 of 1998, under
Section 392 IPC lodged at Police Station
Mahanagar;

19. Crime No.0390 of 1998, under
Section 392 IPC lodged at Police Station
Chowk;

20. Crime No.0126 of 1999, under
Section 506 IPC lodged at Police Station
Krishna Nagar;

21. Crime No.0501A of 1995, under
Sections 147, 148, 149, 307, 504 and 506
IPC lodged at Police Station Umari
Begamganj, District Gonda; and

22 Crime No.07377 of 1997, under
Section 506 IPC lodged at Police Station
Baywari, District Varanasi.

5. After completion of investigation,
charge-sheet was submitted and charge was
framed under Section 2/3 Gangsters Act.
However, the accused-respondent denied
the charge and claimed trial.

6. The prosecution, to prove its
case, produced documentary evidence
i.e. FIR, Exhibit Ka-1, charge-sheet,
Exhibit Ka-2, gang-chart, Exhibit Ka-3,
complaint, Exhibit Ka-4 and Chik FIR,
Exhibit Ka-6.

7. Prosecution examined as many as
20 witnesses to prove its case, who deposed
as follows:-
9 All. State of U.P. Vs. Mukhtar Ansari
1329

1. PW-1, S. P. Singh Pundir,
deposed that in the year 1999 he was
posted as Additional Inspector General
(Prison); on 26.02.1999 he got search
conducted of the prison; some persons got
highly enraged and became very angry;
Mukhtar Ansari, accused-respondent and
Abhay Singh were the prominent persons
amongst such persons, who got enraged
and angry; he was told that a threat had
been given for his killing by these
criminals; on 27.02.1999, at around 10.30.
p.m., two persons in a suspicious position
were seen sitting on a motorcycle under
eucalyptus tree near his house no. F-182;
these persons were noticed by his son,
Manish Pundir; these persons were staring
at the house of the witness; son of this
witness had gone out for a walk along with
his dog; out of two persons, one was quite
tall and well built of around 6 feet height
and second was fat and small; on
28.02.1999, at around 9.15 p.m., when his
son went for walk along with dog, he saw
that one person jumped from boundary wall
of the witness to an open plot and those two
very persons, who were found sitting under
eucalyptus
three
on
motorcycle
on
27.02.1999, were giving indication to him
by cigarette; these two persons and the
person, who jumped from boundary-wall of
the witness to an open plot, were wearing
Kamij and Pajama; son of the witness told
about it to him and when they came out of
the house, these persons were going sitting
on a rickshaw; at a little distance from
there, 7-8 motorcycles were seen riding by
different people; on 01.03.1999, at around
12.15 hours, two persons were seen
standing in suspicious condition and as
soon as the witness came out of the house,
they came on a motorcycle towards his
house in a menacing manner; the witness
had gone inside the house by that time;
these persons, who came on motorcycle,
went inside the colony situated near the
house of the witness though the road
leading
to
the
colony
was
not
a
thoroughfare; an FIR about this incident
got registered at Police Station Krishna
Nagar against the accused-respondent and
co-accused, Abhay Singh; statements of
this witness and his son were recorded in
the Court during trial.

2. PW-2, Tejpal Singh, in his
examination in chief, said that in the year
1999 he was posted as In-charge Station
House Officer at Police Station Hazratganj;
sensational murder of Jail Superintendent,
Shri R.K. Tiwari took place in February,
1999 in Hazratganj; 25 persons were
named in the said offence, including the
present accused-respondent, and chargesheet was submitted by him on 04.06.1999;
on 02.05.1999, he, along with 4 police
men, left for Jiyamau; on inquiry people
told him that criminal Surendra Kumar,
along with his 3-4 persons, was roaming
around in the area and saying that Abhay
Singh, gang-leader, with his accomplishes,
had got killed Shri R.K. Tiwari, Jail
Superintendent; some gang-members had
been sent to jail; efforts were being made to
get them released from jail. He was
threatening people to make arrangement of
money, and if they would dare to inform to
the police, they would get killed; there
were several criminals in the gang who
were committing serious offences in district
Lucknow
and
other
districts
for
accumulation of wealth for themselves such
as robbery, murder, beating, kidnapping
and abducting; no-one would dare to lodge
FIR because of terror which the gang
spreaded in hearts and minds of the people;
Abhay Singh and other criminals, lodged in
jail, organized criminal activities of the
gang from inside the jail using modern
information technology; the gang-chart got
prepared under his direction by Head
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohrir which was got approved by the
District Magistrate and the same was
proved by him as Exhibit Ka-3; the
complaint was proved as Exhibit Ka-4;
Abhay Singh threatened eye-witness, Vinod
for not giving evidence in the murder case
of jail superintendent for which FIR
No.0413 of 1999, under Sections 504 and
506 IPC was registered on 30.04.1999 at
Police Station Hazratganj; several cases got
registered against Abhay Singh and his
gang-members
at
Police
Station
Hazratganj,
Mahanagar,
Hasanganj,
Chowk, Krishna Nagar and district Gonda
regarding murder, attempt to murder,
robbery, dacoity, riots and extortion etc.
Some of such cases are mentioned in the
gang-chart. Main profession of members of
the gang is to extort money from people
and to get them terrorized from their
criminal activities.

3.
PW-3,
Constable
Daya
Shanker, in his evidence, said that on
01.03.1999, he was appointed as Head
Moharir and he wrote the chik FIR of
Crime No.0126 of 1999, under Section 506
IPC against Mukhtar Ansari, the present
accused-respondent, and Abhay Singh; the
said FIR was proved as Exhibit Ka-5.

4. PW-4, Ravindra Singh, in his
examination
in
chief,
said
that
on
02.05.1999 he was posted as constable at
Kotwali Hazratganj and on the said date, on
the complaint of Station House Officer,
Tejpal Singh, In-charge Inspector, FIR at
Crime No.0428 of 1999 under Section 2/3
Gangsters Act against the present accusedrespondent
and
other
accused
was
registered. He proved the FIR, which was
written in his hand-writing and marked as
Exhibit Ka-6.

5. PW-5, Sub-Inspector, Narendra
Bahadur Singh, in his evidence said that in
the year 1998-99 he was posted as
constable Head Moharir. On 04.02.1999, on
the written complaint of Jailer, District Jail,
Lucknow, Shri Ghanshyam, FIR at Crime
No.0106 of 1999, under Sections 307 and
302 IPC was registered at Police Station
Hazratganj against two unknown persons.
On 06.02.1999, on a complaint of Ram
Chandra Gaud, FIR at Crime No.0109 of
1999, under Section 394 IPC was registered
at
Police
Station
Hazratganj
against
unknown person(s) and on 09.10.1998, on a
written complaint of Naseem Ahmad
Siddiqui, FIR at Crime No.01002 of 1998,
under Section 392 IPC was registered
against two unknown persons, who came
on a black motorcycle. He proved all the
three FIRs.

6.
PW-6,
Ramesh
Chandra
Pushkar, Inspector, in his examination in
chief, said that in 1998 he was posted as
Sub-Inspector at Police Station Hazratganj;
investigation of Crime No.01002 of 1998,
under Section 392 IPC was conducted by
him. In the said offence, names of accused,
Ravi Dubey and Shoeb alias Boby came
into light; they were recognized in the
parade conducted inside the district jail.
Complainant, Naseem recognized both the
accused. On pointing out of accused, Shoeb
alias Boby, the bag, which was robbed,
could be recovered. After collecting other
evidence,
the
charge-sheet
dated
31.05.1999 was filed, which was proved as
Exhibit Ka-9.

7. PW-7, constable Sunil Kumar
Pandey, in his evidence, said that in the
year 1998 he was posted as constable
Moharir; on a complaint of Shailesh Kumar
Singh on 16.04.1998, FIR at Crime
No.0115-A of 1998, under Sections 147,
336, 504, 506 and 323 IPC was registered
against accused, Shiv Bhushan Singh,
Pawan Upadhyay, Indra Dev Mishra,
Hemant Upadhyay and Vinay Singh. He
proved certified copy of the chik FIR of the
said crime.
9 All. State of U.P. Vs. Mukhtar Ansari
1331

8.
PW-8,
Naseem,
in
his
examination in chief, said that in 1998, at
around 12 noon, he was coming out from
Bank
of
Baroda
after
withdrawing
Rs.39,000/-; this amount was kept in a bag
and, he was passing by Janpath Market;
when he reached at Darulsafa, two persons
riding on a motorcycle came there and the
person, who was pillion rider, snatched the
bag. He was 30-35 years of age, wearing
Kurta and Payjama. This witness gave
complaint
on
which
FIR
at
Crime
No.01002 of 1998, under Section 392 IPC
was registered. This witness was not crossexamined.

9. PW-9, Habib-Ullah, in his
statement, said that on 28.02.1999, he was
posted as Constable Moharir at police
Station Mahanagar; on complaint of Ram
Chandra Jaiswal, FIR at Crime No.0119 of
1999,
under
Section
392
IPC
was
registered; it was alleged that 3 persons
came on a motorcycle and they looted
Rs.50,000/- of the complainant; no cross
examination was conducted from this
witness.

10. PW-10, Ashok Sarswat, Incharge Inspector, in his statement said that
on 13.06.1999, he was posted as Senior
Sub-Inspector at Kotwali Hussainganj;
investigation of Crime No.0428 of 1999,
under Section 2/3 Gangsters Act lodged at
Police Station Hazratganj was conducted
by him after In-charge Inspector, Ram
Adhar Yadav was transferred. In the said
case, there were 25 accused, including
Abhay Singh. On 13.06.1999, statement of
complainant, Tejpal Sing Verma, In-charge
Inspector
Hazratganj
was
taken.
On
15.08.1999, statement of constable Daya
Shanker and S.P. Singh Pundir and
Virendra Nath and Manish Pundir was
taken on 22.07.1999. The statement of
Narendra
Bahadur
Singh
and
SubInspector, Ramesh Chandra Pushkar were
taken in respect of Crime No.01002 of
1998. On 13.08.1999, statement of Naseem
Ahmad was taken. Further investigation
was conducted by Senior Sub-Inspector,
M.M. Khan till 28.01.2000.

11. PW-11, Head Constable,
Surendra Singh, in his examination in
chief, said that on 05.03.1999, at around
4.30, on written complaint of Harendra
Bahadur Singh, student of B.A. 3rd year in
Lucknow University, chik FIR at Crime
No.060 of 1999, under Section 448 IPC at
Police Station Hasanganj was registered
against unknown person. He proved the
said chik FIR, which was in his handwriting..

12. PW-12, In-charge Inspector,
M.M. Khan, in his statement said that on
16.01.2000, he was posted as Senior SubInspector, Hussainganj, and after transfer of
the Senior Sub-Inspector, Ashok Sarswat,
he took the investigation of the said case.
On the basis of evidence collected in the
said case, charge-sheet against accused,
Abhay Singh and the present accusedrespondent and other accused, named in the
charge-sheet, was filed, which was proved
and marked as Exhibit Ka-13.

13.
PW-13,
Ram
Chandra
Jaiswal, in his evidence, said that on
28.02.1999, he was working in office;
Kamal Singh gave him Rs.50,000/- for
depositing in the office. He was going on a
rickshaw; at that time, 3 persons came on a
motorcycle, stopped the rickshaw and on
gun-point looted Rs.50,000/- from him for
which a written complaint was given at
Police Station Mahanagar, which was
proved by him.

14. PW-14, Ram Chandra Gaud,
in his statement said that on 06.02.1999, he
was posted as Clerk in Government High
School, Narhi; he went to withdraw salary
on the said date at 11.35 a.m. to Allahabad
Bank, Hazratganj Branch; he was coming
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
back from the bank after withdrawing
Rs.87,786/- and as soon as he reached in
front of Press, near Nawab Ajgar Husain
Road, the bag, in which he was carrying the
salary of the employees of the school, was
looted for which FIR at Crime No.0109 of
1999 got registered at Police Station
Hazratganj.

15. PW-15, Virendra Nath Singh,
in his statement, said that on 17.06.1999, he
was posted as In-charge Inspector at Police
Station Krishna Nagar and FIR at Crime
No.0126 of 1999 was registered in his
presence at the police station Krishna
Nagar.
The
said
crime
was
being
investigated by Javed Khan and V.P. Singh.
After transfer of Inspector, V.P. Singh, he
was appointed as In-charge Inspector at
Krishna Nagar and he filed charge-sheet
after completing investigation against the
present accused-respondent and Abhay
Singh under Section 506 IPC and he proved
charge-sheet filed in the said offence,
which was marked as Exhibit Ka-12.

16. PW-16, Vijay Narain Pandey,
in his statement, said that on 05.02.1999 he
was posted as Sub-Inspector at Police
Station Hasanganj. Crime No.060 of 1999
under Section 448 IPC was registered
against unknown persons on a complaint of
Harendra Bahadur Singh and investigation
of the said offence was carried out by him.
In the year 1998-99, he was posted at
Police Station Hasanganj and the case was
registered against the accused-responent.
During the course of investigation of the
said offence, his statement was recorded by
the investigation officer of the said case,
M.M. Khan.

17.
PW-17,
Shailesh
Kumar
Singh, in his evidence, said that in the year
1998 he was a student of Lucknow
University and he was a candidate for
General Secretary for the Student's Union
of the University. He got registered the FIR
against accused, Piyush Bhushan Singh,
Pawan Upadhyay, Indra Dev Mishra,
Hemant Upadhyay and Dinesh Singh at
Police Station Hasanganj, under Sections
147, 336, 504, 506 and 323 IPC. He proved
the FIR.

18. PW-18, Ram Adhara Yadav,
in his statement, said that he was entrusted
with investigation of Crime No.0428 of
1999 under Section 2/3 Gangsters Act
lodged at Police Station Hazratganj as per
the order of the Superintendent of Police
dated 28.05.1999. He was posted as Incharge
Inspector,
Hussainganj
Police
Station.

19. PW-19, Manish Pundir, in his
evidence, said that the incident was dated
27.02.1999, at round 10.30 p.m., when he
was on walk along with his dog, he saw
near House No. F-183, under eucalyptus
tree, two persons, one 6 feet height well
built and second short and fat, standing
there. When he went towards that side,
these people went away. On 28.02.1999,
when this witness went for a walk along
with his dog, he found that one person
jumped from his boundary wall to an open
plot and those persons thereafter went
away on a rickshaw. Two persons, who
were seen on previous night, went along
with the person who jumped off boundary
wall on a rickshaw. He informed his
family members about the said incident
then the family members came out and
they saw several motorcycles with persons
present nearby. On 01.03.1999, he saw
two persons going in front of his house on
a motorcycle towards Hydil colony, which
was not a thoroughfare. Investigating
officer took his statement in the said case
for which the FIR was registered by his
father.

20. PW-20, Satya Dev Singh,
Circle Officer, in his examination in chief,
said that on order of Jail Superintendent,
9 All. State of U.P. Vs. Mukhtar Ansari
1333
District Jail, Unnao, he produced accused
Mukhtar Ansari in the Court of Special
Judge,
Gangsters
Act,
Lucknow
on
13.07.2012 .

8. After completing the evidence of
the prosecution witnesses, statement of
accused, under Section 313 CrPC, was
recorded, who denied the incident and said
that Shri S.P. Singh Pundir, PW-1 had given
false evidence under pressure of the
Government and, he lodged the false FIR
against him. He further said that PW-2,
under
pressure
of
the
Government,
prepared the charge-sheet by collecting
forged and false evidence and the accused
had been acquitted in the said case. He
further said that PW-4 had given false
statement in respect of Case Crime
No.0106 of 1999, under pressure of the
Government, he lodged the FIR. In respect
of PW-5, he said that he was not named in
the FIR registered at Crime No.0106 of
1999 at Police Station Hazratganj. Under
pressure of the Government, his name was
brought in the said offence. He further said
that he had no concern regarding Crime
No.0109 of 1999, under Section 394 IPC
and Crime No.01002 of 1998, under
Sections 392 IPC, both lodged at Police
Station Hazratganj and, he was not accused
in the said cases. In respect of evident of
PW-6, he said that he was not accused in
the said case. In respect of evidence of PW7, he said that he was not accused in the
said case. In respect of evidence of other
witnesses, he said that they were police
personnel and they had given false
evidence against him and they had
collected manufactured and false evidence
to implicate him. He further said that he
was falsely implicated under Government
influence for political reason in several
cases. He had been Vidhayak (M.L.A.) for
five terms consecutively and, he had
defeated the candidates of different parties
in different elections. He was very popular
in the constituency and he was framed for
political reasons.

9. On behalf of defence, copy of
judgment dated 06.09.2018 (State Vs.
Abhay Singh and others) relating to Crime
No.0428 of 1999, certified copy of this
Court's order dated 01.05.2017 and other
orders of this Court and trial Court were
produced and proved.

10. The learned trial Court, after
considering the evidence on record and also
taking into consideration that in all the
cases, mentioned in the gang-chart, either
the accused-respondent was acquitted or
charge-sheet was not filed or by the orders
of the High Court the cases were quashed.
It was said that the gang-chart was prepared
earlier than the FIR was registered. It was
also said that during the course of
investigation, no detail of property or
wealth, which was allegedly accumulated
by committing crime, was given. The
learned trial Court acquitted the accusedrespondent for the offence under Section
2/3 Gangsters Act as the prosecution could
not prove the offence against the accusedrespondent beyond reasonable doubt.

11. The Gangsters Act has been
enacted as a Special Act for prevention and
for coping with gangsters and antisocial
activities. The purpose of the Gangsters Act
is to prevent organized crimes in the State
by enacting the special provisions. The
Gangsters Act is deterrent in nature. It
provides for deterrent punishment. The
gang has been defined under Section 2(b)
Gangsters Act, which reads as under:-

"2 (b) "Gang" means a group of
persons, who acting either singly or
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
collectively, by violence, or threat or show
of violence, or intimidation, or coercion or
otherwise with the object of disturbing
public order or of gaining any undue
temporal, pecuniary, material or other
advantage for himself or any other person,
indulge in anti-social activities, namely-

(i) offences punishable under Chapter
XVI or Chapter XVII or Chapter XXII of
the Indian Penal Code (Act No. 45 of
1860), or

(ii) distilling or manufacturing or
.storing or transporting or importing or
exporting or selling or distributing any
liquor, or intoxicating or dangerous drugs,
or other intoxicants or narcotics or
cultivating any plant, in contravention of
any of the provisions of the U.P. Excise Act,
1910 (U.P. Act No. 4 of 1910), or the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (Act No. 61 of 1985),
or any other law for the time being in force,
or

(iii) occupying or taking possession of
immovable property otherwise than in
accordance with law, or setting-up false
claims for title or possession of immovable
property whether in himself or any other
person, or

(iv) preventing or attempting to
prevent any public servant or any witness
from discharging his lawful duties, or

(v) offences punishable under the
Suppression of Immoral Traffic in Women
and Girls Act, 1956 (Act No. 104 of 1956),
or

(vi) offences punishable under Section
3 of the Public Gambling Act, 1867 (Act
No. 3 of 1867), or

(vii) preventing any person from
offering bids in auction lawfully conducted,
or tender, lawfully invited, by or on behalf
of any Government department, local body
or public or private undertaking, for any
lease or rights or supply of goods or work
to be done, or

(viii) preventing or disturbing the
smooth running by any person of his lawful
business, profession, trade or employment
or any other lawful activity connected
therewith, or

(ix) offences punishable under Section
171-E of the Indian Penal Code (Act No. 45
of 1860), or in preventing or obstructing
any public election being lawfully held, by
physically
preventing
the
voter
from
exercising his electoral rights, or

(x) inciting others to resort to violence
to disturb communal harmony, or

(xi) creating panic, alarm or terror in
public, or

(xii)
terrorising
or
assaulting
employees or owners or occupiers of public
or private undertakings or factories and
causing mischief in respect of their
properties, or

(xiii) inducing or attempting to induce
any person to go to foreign countries on
false representation that any employment,
trade or profession shall be provided to him
in such foreign country, or

(xiv) kidnapping or abducting any
person with intent to extort ransom, or

(xv) diverting or otherwise preventing
any aircraft or public transport vehicle
from following its scheduled course;

[(xvi) offences punishable under the
Regulation of Money Lending Act, 1976;

(xvii) illegally transporting and/or
smuggling of cattle and indulging in acts in
contravention of the provisions in the
Prevention of Cow Slaughter Act, 1955 and
the Prevention of Cruelty to Animals Act,
1960;

(xviii) human trafficking for purposes of
commercial exploitation, bonded labour, child
labour, sexual exploitation, organ removing
and trafficking, beggary and the like activities.
9 All. State of U.P. Vs. Mukhtar Ansari
1335

(xix) offences punishable under the
Unlawful Activities (Prevention) Act, 1966:

(xx)
printing,
transporting
and
circulating of fake Indian currency notes;

(xxi) involving in production, sale and
distribution of spurious drugs;

(xxii) involving in manufacture, sale
and transportation of arms and ammunition
in contravention of Sections 5, 7 and 12 of
the Arms Act, 1959;

(xxiii) felling or killing for economic
gains,
smuggling
of
products
in
contravention of the Indian Forest Act,
1927 and Wildlife Protection Act, 1972;

(xxiv) offences punishable under the
Entertainment and Betting Tax Act, 1979;

(xvv) indulging in crimes that impact
security of State, public order and even
tempo of life."

12. Thus, if a person belongs to a group
of persons, who, either acting singly or
collectively, indulges in violence or threat or
show of violence and coercion etc., with object
to disturb public order or to gain any undue
temporal and pecuniary material or other
advantage to himself or any other person,
indulges in anti-social activities and, commits
offence, as defined under the said section, as
the group of persons, would be a gang.

13. Gangster has been defined under
Section 2(c) Gangsters Act, which reads as
under:-

"2(c) "gangster" means a member or
leader or organiser of a gang and includes any
person who abets or assists in the activities of
a gang enumerated in clause (b), whether
before or after the commission of such
activities or harbours any person who has
indulged in such activities."

14. Gang-leader and member of the
gang is called gangsters. Even a person,
who abets or assists in the activities of
gang, as defined under Section 2(b),
whether before or after the commission of
such activities, or harbours any person,
who has indulged in such activities, would
be also a gangster. Section 3(1) Gangsters
Act provides for punishment of gangster,
which would be two years and may extend
to ten years with fine and fine should not be
less than Rs.5,000/-. If a gangster commits
an offence against public servant or any
member of public servant, then the
minimum punishment would be of three
years and fine.

15. The offence under the Gangsters
Act is an independent offence than the
substantive offence. If it is proved that a
person belongs to a group of persons and
commits offence individually or with group
of persons, which are defined under Section
2(b) of the Gangsters Act, such a person is
a gangster and he would be punished for a
term, which may be two or three years and
extendable to ten years with minimum fine
of rupees five thousand.

16. On behalf of the appellant-State,
Mr. Umesh Verma, learned Additional
Government Advocate, along with Mr. Rao
Narendra
Singh,
learned
Additional
Government Advocate, has submitted that
the basic ingredients to prosecute an
individual under the Gangsters Act for
commission of an offence as gangster is
him being the member of the gang. Even if
no FIR is registered against a person, still
he can be prosecuted for the offence under
the Gangsters Act. The purpose of the
Gangsters Act is to curb organized crime
and criminal activities of the gang and
gangsters.

17. If it is proved that an accused
belongs to a gang and commits offences
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
individually or with other gang members
with object of disturbing public order or of
gaining any undue temporal and pecuniary
material or other advantage for himself or
any other member of the gang, he can be
prosecuted and punished.

18. When a specific offence has been
created in a Special Statute and the offence
is covered by the Statute and fulfills the
requirement as defined, he may be
punished under the Gangsters Act.

19. Mr. Verma has submitted that
even
if
the
accused-respondent
was
acquitted in substantive offences, which are
mentioned in the gang-chart, because the
witnesses turned hostile out of his fear,
manipulation, threats and making the
witnesses tired by employing other tactics,
that would not absolve the accusedrespondent from the offence under Section
2/3 Gangsters Act. If it is proved that the
accused-respondent is a member of the
gang and he commits offences to disturb
the public order and to gain any undue
temporal and pecuniary, material or other
advantage to himself or any other person.

20. Mr. Verma submits that the
accused-respondent is the most dreaded
criminal and gangster, whose reign of crime
is not spread only in State of Uttar Pradesh,
but in other States, including Delhi,
Maharashtra and Punjab etc. The trial Court
has erred in acquitting the accusedrespondent only on the ground that he was
not convicted in any of the offences, which
were part of the gang-chart. It is not a
correct view. It is further submitted that the
learned trial Court was required to consider
whether the accused-respondent was a
member of the gang and had committed the
offences, as defined under Section 2/3
Gangsters Act. The trial Court has ignored
this vital aspect while acquitting the
accused-respondent and, therefore, the
impugned judgment and order, passed by
the learned trial Court, is unsustainable and
liable to be set-aside. The accusedrespondent is to be convicted for the
offence under Section 2/3 Gangsters Act.

21. On the other hand, Mr. Jyotindra
Mishra, learned Senior Counsel, assisted by
Mr. Satendra Kumar Singh, Advocate
appearing for the accused-respondent, has
submitted that all other members, who were
named in the gang-chart, have either been
acquitted or the prosecution, against them,
was quashed by this Court or they were
discharged. It has been further submitted
that the prosecution had failed to bring any
cogent and credible evidence against any of
the alleged gang-members. The trial Court
has taken a correct view of acquitting the
accused-respondent for the offence under
Section 2/3 Gangsters Act. It has been
further submitted that it is a case of no
evidence against the accused-respondent
and the accused-respondent cannot be
punished for his perceived image. Mr.
Jyotindra Mishra, learned Senior Counsel,
has placed reliance upon the judgment of
the Supreme Court dated 18.01.2022
passed in Criminal Appeal No.78 of 2022
(Geeta Devi Vs. State of U.P. & Ors) to
submit that in appeal, against acquittal
under Section 378 CrPC, High Court is not
required to re-appreciate entire evidence
and if this Court re-appreciates the
evidence even then no offence is said to
have been made out against the accusedrespondent, which would attract provisions
of Section 2/3 Gangsters Act.

22. The moot question, which arises
for consideration in this case, is that if the
accused-respondent has been acquitted for
offences, which were mentioned in the
9 All. State of U.P. Vs. Mukhtar Ansari
1337
gang-chart, (substantive offences), can he
still be convicted for offence under Section
2/3 Gangsters Act. As stated earlier, the
offence under Section 2/3 Gangsters Act is
a distinct and separate offence than the
substantive offence. If the prosecution
proves that the person belongs to a gang
and indulges himself in committing offence
with object of disturbing public order or of
gaining any undue temporal and pecuniary
material or other advantage for himself or
any other person, he may be punished
under the Gangsters Act.

23. A Coordinate Bench of this Court
in 2007 (8) ADJ 716 (Vishnu Dayal and
others Vs. State of U.P. and another) held
that the object of the Act is to arrest the
activities of organized criminals and
members in their gangs. The Court also
observed that gangsterism in the recent
times has taken menacing dimensions and
lives and liberty of citizens have been
pushed against the walls of organized
crimes. Paragraphs-11 and 12 of Vishnu
Dayal and others Vs. State of U.P. and
another case (supra), which are relevant for
the purpose of this case, would read as
under:-

"11. From the definition clause it is per
se clear that a gang is a group of one or more
persons who commit the crimes mentioned
under the definition clause for the motive of
earning undue advantage whether pecuniary,
material or otherwise. Even a single crime
committed by a gang is sufficient to implant
Gangsters Act on such members of gang and
repetition of crime is not desired for invoking
offences under the said Act. The definition
clause, as mentioned above does not engulf
plurality of offence before the Gangsters Act
is invoked. It is an Act to achieve an avowed
object of arresting the activities of organised
criminate and members of their gang.
Gangsterism in the recent times has taken
menacing dimensions and lives and liberty of
citizens has been pushed against the walls of
organised crimes. This type of offences have
to be dealt with sternly and with tenacity.
Further the offence under the Gangsters Act
can be implanted on a group of persons who
act individually or collectively.

12. In the present case the incident was
motivated and executed because of grabbing
of property of the deceased as the accused
persons are very close relatives of deceased
and are in fact, his real nephews and wife of
his real own brother. These accused persons
had an evil eye on the property of the
deceased because of which they have
committed the murder of their own blood
relation. The offence was well chalked out
and
pre-planned.
This
certainly
is
gangsterism. This fact clearly brings out the
activity of the applicants within the perview
of the Gangsters Act. The contention of Sri
Sengar, learned counsel for the applicants, is
that this was an individual act and from the
F.I.R. it cannot be said that the murder had
taken place because of the lust of the property
and, therefore, the Gangsters Act is not
applicable, does not appeal at all as the said
contention is against the facts of the case.