Allahabad High Court

Mohd. Azahar vs State Of U.P. on 21 January, 2014

Author:
Vishnu Chandra Gupta

Bench:
Vishnu Chandra Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. 17 Reserved on 15.01.2014

Delivered on 21.01.2014

AFR

Case :- CRIMINAL APPEAL No. - 1588 of 2013

(DISTRICT GONDA)

Appellant :- Mohd. Azahar

Respondent :- State Of U.P.

Counsel for Appellant :- Anoop Kumar Upadhyay

Counsel for Respondent :- Govt. Advocate

HON'BLE VISHNU CHANDRA GUPTA,J.

JUDGEMENT

The instant criminal appeal under
section 374 (2)
of the Code of Criminal Procedure (for short
Cr.P.C
.) has been preferred by the appellant against the judgement and order dated 23.9.2013 passed by the Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 3, Gonda, in Gangster Case No. 197 of 2008 having case crime no. 172 of 2007 under
sections 41
/
,
,
,
,
,
IPC and
section 3(1)
U.P. Gangsters and Anti Social Activities (Prevention) Act ( for short ' U.P. Gangsters Act'), relating to Police Station- Paraspur, District Gonda, whereby the appellant was convicted and sentenced under
sections 413
IPC with rigorous imprisonment of ten years and fine of Rs.5000/-, in default thereof to undergo six months additional simple imprisonment, under
section 419
IPC with rigorous imprisonment of three years, under
section 420
IPC with rigorous imprisonment of five years and fine of Rs.5000/-, in default thereof to undergo three months' additional simple imprisonment, under
section 467
IPC with rigorous imprisonment of ten years and fine of Rs.5000/-, in default thereof to undergo six months' additional simple imprisonment, under
section 468
IPC with rigorous imprisonment of five years and fine of Rs.5000/- in default thereof to undergo three months' additional simple imprisonment and under section 3(1) U.P. Gangsters Act with rigorous imprisonment of five years and fine of Rs.5000/-, in default thereof to undergo six month additional simple imprisonment, and fine of Rs.5000/-, in default thereof to undergo six months additional simple imprisonment. It was also ordered that all the sentences shall run concurrently. The accused appellant was acquitted of the charges levelled under
sections 41
/
IPC.

The facts giving rise to the present appeal are that on 7.7.2007 when S.O. Raj Kumar along with Head Constable Bechu Prasad Yadav, Constable Badruddeen, Constable Pradeep Kumar Singh, Constable Raj Kumar Mishra and Amarnath Upadhyaya, the Government Jeep Driver, were on petrol duty in Saryu Pul Bhauriganj, received a secret information from a informer that a Scorpio Car is coming in village Bihari Vashan Purva, Mauja-Bahuban Madar Majha, which seems to be of stolen. Soon, it is coming towards Charsadi crossing . If the efforts are made quickly, it may be recovered. After believing this information, S.O. Raj Kumar Singh along with police personnel reached Charsadi crossing where S.I. Ram Naresh Gautam and Constable Sudarshan Singh met. S.O. Raj Kumar Singh narrated the said story to them. The police party began to wait for the vehicle in question hiding towards north side of medical store of Dr. Ishnath. At about 1.00 p.m. a Scorpio vehicle was seen coming from the side of Rampur through Kachcha road, which was stopped by the police party and checked it. On checking it out, it was found that a person namely; Saleem Khan son of Shaukat Khan, R/o House No. 328 Tarapuri P.S. Brahmpuri District Meerut (Non Appellant) was sitting on the driver seat and another person was sitting in the adjoining seat of the driver; namely; present appellant Mohd Azhar, son of Jahid Husain, R/o Khen Nagar (Presently) Darapuri, P.S. Brahmpuri District Meerut. On being asked the accused Saleem Khan told that he and his brother-in-law Mohd. Azhar, the appellant, have brought this vehicle after stealing it from Bijnor for sale. They had come yesterday and stayed in the night in the house of a known person; namely; Raghuraj son of Baijnath Godiya, R/o Village Bihari Vaishan Purva Mauza Bahuban Madan Majha. On demand for the R.C. and Insurance of the vehicle, driver Saleem Khan told that they forged these papers. The number of vehicle UP-20 R 9075 mentioned on number plate is also fake. When the same were checked, it was found that in Registration Certificate vehicle number U.P. 20 R 9075 is mentioned and the date of registration of vehicle was shown as 2.3.05. The plate of the same number which was mentioned in the Registration Certificate was affixed in the vehicle in question. Insurance cover note was also recovered from the possession of co-accused Saleem Khan, which was shown to be valid up to 14.3.08, but there was over writing on figure 8, which created doubt. For correctness of the same, S.O. Raj Kumar Singh by his own means confirmed from District Bijnor and came to know that in District Bijnor the series of U.P. 20 R has not yet started and U.P. 20 N series is still in progress. Driving licence was also recovered from the possession of co-accused Saleem Khan having no. S-6526/MM, issued from Regional Transport Officer, Meerut and is shown to be valid till 3.6.2011. From the possession of accused appellant Mohd. Azahar driving licence no. A-5693/MRT was also recovered, which was issued on 24.9.1992 and was valid till 10.7.2007. The personal search of both accused persons was made. A mobile set (classic) and Rs. 1000/- in cash was recovered from the possession of co-accused Saleem Khan and Rs. 100/- in cash was also recovered from the possession of accused appellant Mohd. Azhar. The Chesis no. R-2H2D-19-157 Engine no. BF 34G48684 was mentioned on Scorpio vehicle found from their possession. It was also disclosed by co-accused Saleem Khan that 5-6 months ago we, both lifted a Maruti 800 car from Ghaziabad and sold it at Delhi. A recovery memo (Ext.Ka-4) was prepared on spot. It was signed by the police personnel and accused persons. A First information Report (Ext. Ka-1) was also lodged against accused persons on 7.7.2007 at 14.45 O'clock at police station Paraspur, District Gonda at case crime no. 172 of 2007 under
sections 41
/
/
/
/
/
/
/
IPC on the basis of recovery memo after registering a case in General Diary of the police. Thereafter the case was investigate by the Investigating Officer.

During investigation section 3(1) U.P. Gangsters Act was added after approval of District Magistrate Gonda and Superintendent of Police, Gonda. In the Gang-chart (Ext Ka-8) submitted by S.O. Raj Kumar Singh on 28.8.2007 two cases having case crime no. 172 of 2007 under
sections 41
/
/
/
/
/
/
/
IPC P.S. Paraspur, District Gonda (the present case in hand) and case crime no. 755 of 2007 under
section 379
IPC Mallital, District Nainital have been shown.

During the course of investigation, it was found that a Scorpio No. U.P. 32-BB-7548 has been stolen from Royal Hotel, Mallital, District Nainital, which belongs to Mohd. Tarik (P.W.1). This information has been given by one Mohd. Shahid, the driver of the said vehicle, on the basis of which a First Information Report (Ext.Ka-1) of case crime no. 755/07 was lodged by one Mohd. Sahid against unknown person under
section 379
IPC at Police Station Mallital , District Nainital on 27.6.2007 at 18.15 O'clock in respect of the vehicle recovered in the present case. So this case was shown in gang chart.

The said vehicle was ordered to be released in favour of Mohd. Tarik, owner of the vehicle vide order dated 23.10.2007 by the Special Judge, Gangsters Act, Faizabad. Earlier to it, the said vehicle was ordered to be released in his favour vide order dated 18.8.2007 by the Chief Judicial Magistrate-II, Gonda. But the same could not be released because of addition of section 3(1) of Gangsters Act. Therefore, Gangsters Court released the same.

Original documents of the vehicle in question has not been taken during investigation. On the basis of the papers recovered from the possession of co-accused Saleem Khan and the vehicle allegedly recovered from the joint possession of accused appellant Mohd. Azhar and co-accused Saleem Khan and also after preparing the site plan (Ext-Ka-6) and recording the statement of witnesses during investigation, the police filed charge-sheet (Ext. Ka- 5) against accused appellant and co-accused Saleem Khan at case crime no. 172/07 under
sections 41
/
/
/
/
/
/
/
IPC and 3(1) Gangsters Act, P.S. Paraspur, District Gonda. During the course of trial co-accused Saleem Khan passed away and the case against him stands abated. The court of Special Judge, Gangsters Act, Faizabad took cognizance of the case and framed charges on 26.10.2009 against accused appellant Mohd. Azhar under
sections 41
/
/
/
/
/
/
/
IPC and 3(1) Gangsters Act. The accused appellant denied the charges levelled against him and claimed trial.

To prove its case, the prosecution examined Mohd. Tarik (P.W.1), S.I. R.K.Singh (P.W.2), Mohd. Shahid (P.W.3), Constable Bechu Prasad Yadav (P.W. 4), S.I. Ram Naresh Gautam (P.W. 5), S.I. Jagdish Prasad (P.W. 6) and S.I. Shesh Mani Yadav (P.W. 7).

P.W. 1 Mohd. Tarik, who is owner of the vehicle alleged to have been recovered on 7.7.2007 from police station Paraspur, District Gonda stated on oath that his vehicle no. U.P. 32 BB 7549 was stolen from Royal Hotel, Mallital, District Nainital in between 6.00 p.m of 26.6.2006 and 10.00 a.m on 27.6.2007 when it was parked there. The FIR was lodged by Mohd. Shahid, the driver of the vehicle at P.S. Mallital, District Nainital at case crime no. 755 of 2007 under
section 379
IPC. Copy of the FIR was proved by him (Ext. Ka-1). He also stated that the vehicle in question was released in his favour on the production of original registration certificate and insurance cover note (Ext Ka-2 and 3 respectively) of the vehicle in question. The said vehicle was also released by the court.

P.W. 3 Mohd. Shahid is the driver of the vehicle in question, who lodged First Information Report at Police Station Mallital, District Nainital regarding theft of vehicle No. U.P. 32 BB 7549.

S.I. Raj Kumar Singh (P.W.2.), S.I. Bechu Prasad Yadav (P.W.4) and S.I. Ram Naresh Gautam (P.W.5) are the witnesses of arrest of accused persons, recovery of the vehicle in question and forged papers thereof, who supported the prosecution version as narrated in the recovery memo.

S.I. Jagdish Prasad Verma( P.W.6) and SI Shesh Mani Yadav (P.W.7) are the Investigating Officer of this case. Jagdish Prasad Verma and S.I. Shesh Mani Yadav during investigation recorded statements of the witnesses and prepared site plan (Ext. Ka-6), made addition of section 3(1) of the Gangster Act, obtained approval of District Magistrate,Gonda and S.P. Gonda and filed charge-sheet against the present appellant.

Accused appellant was examined under
section 313
Cr.P.C. who denied circumstances put to him and claimed his false implication in this case. In defence, he filed a copy of judgement delivered by the Court at Nainital acquitting him of the charges levelled against him under section 379 read with
section 411
IPC.

Heard Shri Anoop Kumar Upadhyaya, learned counsel for the appellant and Mrs. Mathulika Yadav, learned AGA.

It is necessary to look into the conclusion arrived at by the trial court while convicting the accused appellant . At pages 11 and 12 the conclusions are recorded which run as follows:-

"mijksDr lEiw.kZ ekeys ds rF; ,oa ifjfLFkfr;kas vfHk;kstu i{k dh vksj ls ijhf{kr lkf{k;ksa ds c;ku ls ;g Li"V gS fd vfHk;qDr iz'uxr okgu la[;k ;w0 ih0 32ch ch 7549 dks tuin uSuhrky ls tks eqdnek oknh dh okgu Fkh] mls pqjkdj ftldh pksjh dk eqdnek Fkkuk eYyhrky ftyk uSuhrky esa fy[kk x;k Fkk ;g tkurs gq, rFkk fo'okl dk dkj.k j[krs gq, fd og pqjk;h gqbZ lEifRr gS] mldks izkIr fd;kA blds vfrfjDr vfHk;qDr }kjk mDr okgu ds lEcU/k esa QthZ nLrkost rS;kj fd;k x;k lkFk gh lkFk iz'uxr okgu dks csbZekuh iwoZd ewY;oku izfrHkw izkIr djus ds fy, QthZ nLrkost rS;kj djds dwV jpuk dh x;h lkFk gh lkFk QthZ nLrkost rS;kj djds mls vlyh ds #i esa iz;ksx fd;k x;k rFkk Ny djus ds iz;kstu ls dwVjpuk djds QthZ nLrkost bl vk'k; dk tkurs gq, rS;kj fd;k x;k fd mldk iz;ksx vlyh nLrkost ds #i esa fd;k mDr rF; dks vfHk;kstu i{k ds lkf{k;ksa us vfHk;qDr vtgj ds fo#) ;qfDr & ;qfDr lansg ls ijs lkfcr djus esa lQy jgs gSA bl rjg ls vfHk;qDr ds fo#) vfHk;kstu i{k ds leLr lk{kh x.k us vUrxZr /kkjk 413] 419] 420] 467] 468] Hkk0 n0 la0 ds vkjksi dks ;qfDr & ;qfDr lansg ls ijs lkfcr djus esa lQy jgs gSA vr% vfHk;qDr vtgj /kkjk 413] 419] 420] 467] 468 Hkk0 n0 la0 ds vkjksi esa nks"k fl) fd;s tkus ;ksX; gS rFkk /kkjk 41] 411 Hkk0 n0 la0 ds vkjksi ls nks"k eqDr fd;s tkus ;ksX; gSA

tgkW rd vfHk;qDr vtgj ij vkjksfir vkjksi vUrxrZ /kkjk 3¼1½ mRrj izns'k fxjksgcUn ,oa lekt fojks/kh fdz;kdyki fuokj.k vf/kfu;e ds vkjksi dk iz'u gSA lk{kh ih0 MCyw0&6 us vius ftjg esa crk;k gS fd nkSjku foospuk bl eqdnesa ds vfrfjDr vU; eqdnek ds lEcU/k esa dk;Zokgh fd;k Fkk rFkk vU; eqdnesa ls lEcfU/kr xokgks dk c;ku fy;k FkkA bl eqdnesa ds vfrfjDr oknh eqdnek o foospd dk c;ku vafdr fd;kA xSxsLVj ds eqdnesa ds vykok dsoy 379 Hkk0 n0 la0 dk eqdnek FkkA eq>s tkudkjh ugha gS fd ml 379 Hkk0 n0 la0 ds eqdnesa esa vfHk;qDr vtgj nks"k eqDr gks x;k gS ;k ughaA ;g lgh gS fd vfHk;qDr ds fo#) tks xSxpkVZ nkf[ky fd;k x;k gS mlesa ,d eqdnek 755@07 /kkjk 379 Hkk0n0la0 Fkkuk eYyhrky ftyk uSuhrky dk gh n'kkZ;k x;k gS vkSj vfHk;qDr us lQkbZ lcwr esa mDr eqdnesa dh fu.kZ; dh izfr nkf[ky fd;k gS ftlesa og nks"k eqDr fd;k tk pqdk gSA blds vfrfjDr vfHk;qDr vtgj ds fo#) vU; dksbZ eqdnek nf'kZr ugha fd;k x;k gSA fdUrqa mDr eqdnek vijk/k la[;k 755@07 tks vKkr O;fDr;ksa ds fo#) ntZ fd;k x;k Fkk mlh batu ua0 o psfll ua0 ds okgu dk uEcj IysV cny djds mls fodz; djus ds mn~ns'; ls QthZ nLrkost jftLVzs'ku] Mh0 ,y0 vkfn rS;kj fd;k x;k vkSj ogh okgu iz'uxr eqdnesa esa vfHk;qDr vtgj ds dCts ls Fkkuk ijliqj ftyk xks.Mk dh iqfyl }kjk ckjken fd;k x;kA ;g Hkh mYys[kuh; gS fd vfHk;qDr vtgj vfHk;qDr lyhe ds lkFk fey djds vkfFkZd rFkk HkkSfrd ykHk izkIr djus ds fy, okgu pqjkdj mlds dz; fodz; dk dk;Z djrk Fkk vkSj vfHk;qDr lyhe ,oa vfHk;qDr vtgj mijksDr dk;Z xSx ds lnL; ds #i esa djrs FksA mijksDr rF;ksa dks vfHk;kstu i{k us vius ekSf[kd rFkk nLrkosth lk{; ls mijksDr fo'ys"k.k ds vuqlkj lkfcr fd;k gSA vfHk;qDr dk ,d ek= dk;Z Hkh vUrxZr /kkjk 3¼1½ mRrj izns'k fxjksgcUn ,oa lekt fojks/kh fdz;kdyki fuokj.k vf/kfu;e dh Js.kh esa vkrk gSA ftls vfHk;kstu i{k ;qfDr & ;qfDr lansg ls ijs lkfcr djus esa lQy jgk gSA ,slh n'kk esa vfHk;qDr vtgj /kkjk 3¼1½ mRrj izns'k fxjksgcUn ,oa lekt fojks/kh fdz;kdyki fuokj.k vf/kfu;e ds vkjksi ls Hkh nks"kh fl) fd;s tkus ;ksX; gSA

vfHk;qDr vtgj tekur ij gSA mlds tekur ukes o cU/k i= fujLr dj izfrHkw x.k dks muds nkf;Roksa ls mUeksfpr fd;k tkrk gsA vfHk;qDr dks U;kf;d vfHkj{kk esa fy;k tk;A ltk ds iz'u ij lquok;h gsrq i=koyh ckn yUp is'k gksA"

To judge the correctness of conclusions arrived at by the trial court the perusal of evidence adduced by prosecution requires scrutiny. It is not in dispute that accused appellant has been acquitted of the charges levelled against him under
section 41
/
IPC. Now the charges remain against the accused appellant under
sections 413
,
,
,
,
IPC and section 3(1) of the U.P. Gangsters Act. The prosecution to establish these charges, examined P.W. 1 Mohd. Tarik, who is the owner of the vehicle alleged to have been recovered from possession of accused persons. He is not the witness of any fact of recovery. He simply stated regarding theft of his vehicle Mahindra Scorpio No. U.P. 32 BB 7549 from Royal Hotel Mallital, District Nainital in between 6.00 p.m. of 26.6.2007 to 10.00 a.m of 27.6.2007 , on the basis of which his driver Mohd. Shahid lodged first information report at P.S. Mallital, District Nainital. He filed Registration Certificate and Insurance Policy of the vehicle in question, which he proved. He also proved the FIR lodged against the accused person. He is neither the witness of recovery nor the witness to prove the alleged forgery committed by the arrested persons in this case.

P.W. 3 Mohd. Shahid is the driver of the vehicle in question which was stolen from Royal Hotel Mallital, District Nainital. He proved FIR lodged by him against unknown person in this connection at Police Station Mallital, District Nainital, as such he is also not the witness of either of recovery or alleged forgery committed by the arrested persons in this case including present appellant.

So far as P.W. 2 S.I. R.K.Singh, P.W. 4 S.I.Benchu Prasad Yadav and P.W. 5 S.I. Ram Naresh Gautam are concerned, they are the witnesses of arrest of the accused persons namely Saleem Khan and Mohd. Azhar. They supported the version of FIR which was lodged on the basis of recovery memo prepared on 7.7.2007 of the alleged vehicle and fake documents. They proved the contents of recovery memo.

P.W. 6 S.I. Jagdish Prasad Verma is one of the Investigating Officer of this case who added section 3(1) of the U.P. Gangsters Act during investigation against appellant Mohd. Azhar and co-accused Saleem Khan. So he is not the witness of fact.

P.W. 7 S.I. Shesh Mani Yadav is the first Investigating Officer, who initially conducted the investigation and later on the case was entrusted for investigation to P.W. 6 S.I. Jagdish Prasad Verma, who added section 3(1) of the U.P. Gangsters Act and also filed charge-sheet against accused persons namely Saleem Khan and Mohd. Azhar. These witness are not the witnesses of fact. They simply recorded the statements of accused persons, owner and driver of the vehicle in question. Admittedly, they did not investigate the case in regard to the fact as to who actually fabricated the document of the vehicle or made forgery of the documents of the vehicle in question. They simply relied upon recovery of fake documents from the possession of co-accused Saleem Khan, which were ultimately found fake.

In this case only evidence adduced by the prosecution witnesses to support the contents of the recovery memo. The prosecution also produced original documents of the vehicle in question through owner and driver of the vehicle in question and also proved lodging of the first information report in respect of vehicle at Mallital, District Nainital. This fact is not in dispute that the vehicle in question was stolen from Mallital, District Nainital and FIR under
section 379
IPC was lodged and the present appellant was tried before Nainital court on the basis of the alleged recovery made at District Gonda by the present recovery memo. In this case order of acquittal has been passed. It is also not in dispute that in the present case accused appellant has been acquitted of the charges levelled against him in respect of
section 411
IPC.

It has not been proved from any evidence on record that appellant stolen the vehicle in question from District Nainital. On the contrary, the statements of co-accused Saleem Khan (Non-appellant and did during trial), was in the recovery memo wherein he admitted before police that they have stolen the vehicle in question from District Bijnor. It is also not in dispute that no FIR has been lodged in regard to theft of vehicle in District Bijnor. The vehicle in question is alleged to be recovered from co-accused Saleem Khan. It is the admitted case of the prosecution and also proved by adducing evidence that when the vehicle in question was intercepted by the police, the co-accused Saleem Khan was driving the vehicle and was sitting on the driver seat. It is also the case of the prosecution that fake and forged Registration Certificate and Insurance Policy of the vehicle in question were recovered from the possession of co-accused Saleem Khan. The present appellant was only sitting on the adjoining seat of the driver and the driving licence alleged to have been recovered from his possession, was not found to be fake or forged. The prosecution did not adduce any evidence to the effect that present appellant committed forgery in the documents i.e. Registration Certificate and Insurance Policy of the vehicle in question. The said documents which are said to have been recovered from the possession of co-accused Salim Khan were said to be forged on the basis of original Registration Certificate and the Insurance paper which are being possessed by the registered owner Mohd. Tarik.

Therefore, I am of the firm view that merely for this simple reason that present appellant was sitting in the vehicle, which was said to be stolen, shall deemed to be recovered from his possession. It shall deemed to have been recovered from the person who was sitting on the driver seat and who also possessing the papers of the vehicle which were found to be fake.

It is also brought notice that the statement given by the accused persons to the police regarding theft of vehicle in question is not substantiated from the record because all the witnesses categorically stated that no such FIR of the theft of the vehicle in question was lodged in District Bijnor. Moreover, the statements given by the co-accused Saleem Khan in presence of police officers would be hit by
section 25
of the Evidence Act and cannot be taken into consideration being not admissible as piece of substantive evidence.

So far as the statement regarding theft and sale thereafter of another vehicle is concerned given by co accused Saleem Khan before police, could not be substantiated from any evidence gathered during the course of investigation. So it cannot be said that the accused persons are habitually receive or deal in properties which they know or has reason to believe to be stolen.

The alleged recovery of the vehicle could not said to be recovered from the exclusive possession of the accused appellant. It is not on record to show that accused appellant was aware with the fact that vehicle was stolen one, except the statement of co-accused (non appellant) before police.

In view of totality of the facts and circumstances established on record, the conclusion arrived at by the trial court as mentioned herein above cannot be allowed to sustain. Neither any admissible evidence of making document forged and of fabrication of documents by the accused appellant nor of cheating any person by the appellant was brought on record. It is also not established on record from any reliable and admissible evidence by the prosecution that accused appellant habitually deals in or receives the property which he knows or reason to believe to be stolen property. So, it cannot be said that present appellant and deceased co-accused Saleem Khan were having any gang to commit organised crime of theft. Therefore, this Court is of the firm view that prosecution has utterly failed to prove any of the charges levelled against present appellant under
Section 413
,
,
,
,
IPC and Section-3(1) of U.P. Gangsters Act.

Consequently, the appeal is allowed. The impugned judgement and order dated 23.9.2013 passed by the trial court convicting and sentencing appellant is set aside. The appellant is acquitted of the charges levelled against him under
Section 413
,
,
,
,
IPC and Section-3(1) of U.P. Gangsters Act. He is in jail. He be released forthwith without any further delay, if not wanted in any other cases. Copy of this judgement be sent to the trial court as well as to the Chief Judicial Magistrate, Gonda for immediate compliance. The compliance report be submitted to this court within three weeks by CJM, Gonda and concerned Trail Court.

Senior Registrar of this Court shall ensure the compliance of this order.

Dated: 21.01.2014 (Hon'ble Vishnu Chandra Gupta,J)

GSY