Allahabad High Court
State Of U.P. vs Imran And 2 Ors. on 4 February, 2020
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- GOVERNMENT APPEAL No. - 47 of 2020 Appellant :- State of U.P. Respondent :- Imran And 2 Ors. Counsel for Appellant :- G.A. Hon'ble Neeraj Tiwari,J.
Heard learned A.G.A. for the State.
Present Government Appeal has been filed by the appellant against the acquittal order dated 23.10.2019 passed by Additional Sessions Judge, Court No. 3 Meerut.
The prosecution story in brief is that on 26.2.2011, on the information given by informer, the police team caught six persons and recovered intoxicating powder from a plastic bag and Rs. 70/- as well as one countrymade pistol from them. From the right pocket of the pant of accused Lokesh, some intoxicating power and Rs. 200/- were recovered and recovery memo was made. On the confirmation of intoxicating powder as Heroin Afim, accused persons were taken into custody. From the possession of accused Imran, 89.47 grams, from Vikas, 52 grams and from Lokesh 63.34 grams intoxicating powder was recovered and from the said recovered material, sample was taken and sealed. Apart from aforesaid accused persons, three other accused were also arrested and the FIR was lodged against them.
The prosecution in order to prove its case, has examined as P.W.-1 B.D. Pushkar, P.W.-2 Sri Krishna Kumar, P.W.-3 Pradeep Kumar and P.W.-4 Devendra Singh.
The statement of accused has been recorded under Section 313 Cr.P.C., in which he clearly stated that he has been falsely implicated in the present case as he was forcefully taken away from his house and nothing was recovered from his possession and he is fully innocent.
Learned A.G.A. for the appellant submits that the trial court has acquitted the accused persons giving benefit of doubt on the basis of evidence produced by prosecution. It is further submitted that the order of acquittal has been passed by the trial court without examining and considering the evidence available on record, therefore, the order of acquittal is against the law and facts and is liable to be quashed. It is next submitted that the trial court has acquitted the accused persons in spite of prima facie evidence proved beyond doubt against the accused, therefore, the order of acquittal is liable to be quashed. It is also submitted that the order of acquittal passed by the trial court is against the evidence available on record and liable to be quashed.
I have considered the submissions made by learned A.G.A. and perused the record along with judgement and order dated 23.10.2019.
Learned A.G.A. has raised several arguments, but he could not dispute this fact that the F.I.R. has been lodged by the Station House Officer and investigation was carried out by his subordinate and this is one of the ground taken for the acquittal. It is further submitted that in the matter of Raghubir Vs. State of U.P., (Criminal Appeal No. 2677 of 1979) decided on 11.01.1995, this Court has clearly held that once the subordinate officer is the Investigating Officer, no conviction order can be passed. Relevant paragraph No. 18 of the judgment is quoted below:-
"18. The most glaring feature-of the case is that the investigation in this case has not been fair. Sri Verma was the highest police officer at the police station. He was the S.H.O., of that P.S. Sri Geetam Singh. I.O. was his subordinate. It was under the direction of Sri Verma that investigation was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetam Singh would do justice to this Case. Being subordinate to Sri Verma, he was not in a position to coming to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding the acts of senior officer should not be done by junior officer."
Prosecution has also not produced the G.D. having arrival and departure of police personnel, which is very important document as per law laid down by this Court in Ramlal Vs. State of U.P. 2005 (52) ACP 457. Apart from that, the incident took place on public place and huge crowd was also assembled, but neither the testimony of independent witness was recorded nor they have been made witness. Learned Judge has considered the statement of all the prosecution witnesses and evidence available on record and considering the same, passed the order of acquittal.
Therefore, under the facts and circumstances of the case coupled with legal proposition, I find no illegality in the order dated 23.10.2019 passed by Additional Sessions Judge, Court No. 3 Meerut.
Accordingly, the application seeking leave to appeal is rejected and consequently, the appeal is also dismissed.
Order Date :- 4.2.2020 Sartaj