Allahabad High Court
State Of U.P. vs Rajveer And Another on 21 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 452
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 51 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 119 of 2018 Appellant :- State of U.P. Respondent :- Rajveer And Another Counsel for Appellant :- G.A. Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Gautam Chowdhary,J.
1. Heard learned A.G.A. for the appellant- State of U.P. and perused the record as available on the file.
2. By way of instant Government Appeal the appellant (State) is seeking leave to appeal against the judgment and order of acquittal dated 29.07.2017 passed by Additional Sessions Judge, Court No.02, Etawah in concerned Special Case No.51 of 2011 (State of U.P. Vs. Rajveer) concerning case crime no.275 of 2011, under section 21/22 N.D.P.S. Act, Sessions Trial No.21 of 2012 (State of U.P. Vs. Bhupendra Singh, Sanjeev @ Sanju and Rajveer) arising out of Case Crime No.274 of 2011, under sections 147, 148, 149, 307 I.P.C., and Sessions Trial No.22 of 2012 (State of U.P. Vs. Bhupendra Singh) arising out of Case Crime No.276 of 2011, under section 25/27 Arms Act, P.S.- Bakewar, District- Etawah.
3. In all the aforesaid sessions trials charges were framed under the relevant provisions of the 21/22 N.D.P.S. Act, under sections 147, 148, 307 r/w 149 I.P.C. and under section 25/27 of the Arms Act and all the aforesaid accused/ respondents were acquitted of all the aforesaid charges framed against them.
4. For proper adjudication of this case the facts relevant as discernible from the record appear to be that some police inquiry followed after some tip off information was received by the police on 5.8.2011 that some miscreants have looted one Bolero Jeep, red colour No. MH 14 BC 6923 and in case checking is done the miscreants will be napped. This tip off information led to the aforesaid incident allegedly committed on Phuphoond crossing within police station Auraiya. The tip-off information was also submitted to the effect that driver of the vehicle had also been abducted. The eagle-1 and eagle-2 mobile vans of the police were asked to come on the Bakewar crossing. Whereupon the police personnel and the aforesaid eagle mobile police met on the Bakewar crossing, they consulted each other and made personal search of each other in order to ascertain whether any untoward incriminating material is in possession of the police party or not. After ensuring safety that no police personnel possesses any incriminating material all waited over there for sometime when some Bolero vehicle, red colour was seen coming towards Mahewa crossing. The police personnel asked by making signs to stop the vehicle but instead of stopping it, the driver tried to speed away when the vehicle was surrounded by the police on the spot and in the process certain miscreants got down from the vehicle and uttered words- "???? ????? ?? ???? ?? ???? ?????"- and several rounds of fire was opened on the spot by the accused upon the police party, however, no one was hurt in the firing and (after surrounding) the miscreants were napped by the police party around 00:20 in the night at the culvert of 'Baheda' canal. Two miscreants escaped from the scene. On inquiry being made from the apprehended accused three accused spelled their names as Bhupendra Singh s/o Arvind Singh Chauhan, Sanjeev @ Sanju s/o Bake Dayal Dohre and the third one named himself as Rajveer s/o Subedar Sengar. Rajveer also told that he is possessing some noxious powder which they used to administer upon victims and commit loot. Upon this information the accused Rajveer was offered choice to be searched by a gazetted officer but Rajveer expressed confidence in the police party itself and willing to be searched by the police. Therefore search was made whereby some noxious powder weighing approximately 110 gms was recovered from the possession of the accused Rajveer and upon search being carried out inside the vehicle one person whose hands and legs were tied was found lying in between the space the first and the second row of the seat of the vehicle. Upon being asked this person named himself Krishna Murari Gupta @ Kallu s/o Rajendra Kumar Gupta resident of district Jalaun. He claimed himself to be the driver of the vehicle and to have been administered noxious powder which was kept by the miscreants and he was abducted and loot was committed upon him. Consequently, the formalities were completed by the police party on the spot and arrest and seizure memo was prepared. The informant Rakesh Bharti, the then S.H.O. of police station Bakevar lodged a written report Ex. Ka-1 at case crime no.274/ 2011, under sections 147, 148, 149, 307 I.P.C. and as case crime no.276/ 2011, under section 25/ 27 Arms Act and as case crime no.275/ 2011, under section 21/22 N.D.P.S. Act. Consequently, the relevant entries were noted down at the relevant Check F.I.R. and relevant entry was made in the concerned G.D. Investigation of the aforesaid cases was entrusted to S.I. Jagmohan Singh who prepared the site plan and recorded the statement of various witnesses and after completing the investigation filed charge-sheet against Bhupendra Singh, Sanjeev @ Sanju and Rajveer, under sections 147, 148, 149, 307 I.P.C. and under section 25/ 27 Arms Act concerning case crime no.276/ 2011 and charge-sheet against Bhupendra Singh, under section 21/ 22 N.D.P.S. Act concerning case crime no.275/ 2011. Pursuant thereto, the matter was committed to the court of sessions where all the accused were heard on the point respective charges. Accordingly, charges were framed against the accused, the same were read over and explained to them but they denied the charges. They opted to be tried whereupon prosecution produced in all four witnesses P.W.1 is the informant Rakesh Bharti, P.W.2 is constable Sonelal Mathur, P.W.3 is constable Kamlendra Singh, P.W.4 is S.I. Jagmohan Singh- the investigating officer. Apart from above witnesses the driver of the Bolero Jeep was examined as C.W.1 (Krishna Murari Gupta). Apart from that the prosecution also proved various documents which have been exhaustively referred in the judgement of the trial court and need not be repeated at this stage by us. After recording statement of the aforesaid witnesses, the testimony for the prosecution was closed and the statement of the accused was recorded under section 313 Cr.P.C., all the accused claimed to have been falsely implicated in this case.
5. No evidence whatsoever was led by the defence. Consequently, the matter was considered on its merit and the aforesaid judgement of acquittal was passed on 29.7.2017. Resultantly, this appeal.
6. Claim is that the judgement and order of acquittal dated 29.7.2017 is erroneous and perverse in the face of the finding of acquittal recorded by the trial court to the ambit by observing that the case of the prosecution was not proved beyond doubt, whereas the fact is that 110 gms of diazepam was recovered from the possession of the accused Rajveer and the informant P.W.1 himself has proved the fact of police encounter and the consequent arrest and recovery from the accused and the case is well proved under section 307 I.P.C. Thus the case of firing on the police party was proved beyond doubt but the trial court did not believe the same and based on conjectural analogy of evidence recorded whimsical finding on fact of police encounter and the firing done by the miscreants. It appears that the driver C.W.1, Krishna Murari Gupta has been won over by the accused and he did not come out with the truthful version of the incident though crime was committed in dare devil manner by the accused against him by abducting him.
7. We have considered the submissions so made and the entirety of the case apart from the testimony of the witnesses. No doubt the allegations are specific but insofar as the compliance of the relevant provisions of the N.D.P.S. Act regarding search and ensuring safe upkeep of the recovered material/ contraband is concerned the same was not properly done and not duly complied. Thus in view of the violation of specific provisions of the N.D.P.S. Act the case of the prosecution is not proved within the four corners of charge under section 21/ 22 of the N.D.P.S. Act. Similarly, while we scrutinize carefully the testimony of the driver of the vehicle as C.W.1 we arrive at conclusion that the very commission of the offence has been denied by him. Insofar as the act of abduction of driver of the Bolero Jeep and loot of Jeep (Bolero) is concerned, the entire incident as per the testimony of C.W.1 is placed under dark shadow of doubt and these facts become opaque. He has not supported the prosecution version regarding any loot having been committed by the accused against him. This being the central theme, the trial court was justified while it disbelieved the entire story and acquitted all the accused of all charges. No other best alternate view of the alleged occurrence is possible. It cannot be said from any angle that the finding of acquittal is not based on material on record.
8. It is established criminal jurisprudence that in case of acquittal where the finding of acquittal is grounded and based on material on record the same need not be interfered by Appellate Court. May be that the other alternate view is possible, but the view that favours the accused would be preferred. For the reasons aforesaid, we don't find it reasonable and cogent to interfere with the judgement and order of acquittal dated 29.07.2017. Consequently, finding of acquittal recorded by the trial court is hereby affirmed by us.
9. In the final count leave to appeal is refused and this appeal loses its force and the same is dismissed.
Order Date :- 21.1.2020 shiv