IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
9th JUNE, 2023
GOVERNMENT APPEAL NO. 418 of 2007
Between:
State of Uttarakhand .....Appellant
and
Vivek Arora .....Respondent
Counsel for the Appellant : Mr. S.S. Adhikari, Deputy
Advocate General with
Mr. Balvinder Singh, Brief
Holder.
Counsel for the Respondent : Mr. Bhuvnesh Joshi,
Advocate holding brief of
Mr. Vivek Shukla,
Advocate.
Hon'ble Alok Kumar Verma, J.
Present Government Appeal is directed against the judgment dated 30.04.2004, passed by learned Additional District and Sessions Judge/ Ist Fast Track Court, Haridwar in Sessions Trial No. 29 of 2001, "State vs. Vivek Arora", by which, the respondent-accused has been acquitted of the charge under Section 489C of the Indian Penal Code, 1860.
2. Prosecution story, in brief, is that on 31.08.2000, Senior Sub-Inspector Yogendra Pal Singh Bhadoriya (PW1), Sub-Inspector Ravindra Kumar Chamoli (PW2), Senior Sub- Inspector J.P. Juyal (PW3) and Inspector Sanjay Singh (PW9) along with other police personnel reached the house of co-accused Ranveer alias Rajesh and arrested him. Co- accused Vinay was accompanying the police personnel. On 2 interrogation, co-accused Ranveer alias Rajesh told that he counterfeited fake currency notes along with Vivek Arora (present respondent-accused) and one Shyam and supplied the same to the customer. Respondent-accused Vivek Arora was arrested on 31.08.2000 at 10.30 p.m. on the pointing of co-accused Ranveer alias Rajesh. Nine thousand fake currency notes of the denomination of Rs. 100/- were recovered from the possession of the present respondent- accused. A recovery memo was prepared. In spite of an endeavour, no public witness could be secured. On 01.09.2000, computer, printer, monitor and counterfeit currency notes were recovered from the room of Shyam on the pointing of co-accused Ranveer alias Rajesh and present respondent-accused.
3. At present, this Court is concerned only with the case of Vivek Arora, present respondent-accused.
4. An FIR (Case Crime No. 707 of 2000) (Ext. Ka. 5) was registered against the present respondent-accused. After completing the investigation, charge-sheet (Ext. Ka.
15) was submitted by Sub-Inspector Ram Chandra Tripathi (PW10) against the present respondent-accused.
5. The charge was framed against the respondent- accused in respect of offence punishable under Section 489C of the Indian Penal Code, 1860. Respondent-accused pleaded not guilty and claimed trial.
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6. (PW1) Senior Sub-Inspector Yogendra Pal Singh Bhadoriya, (PW2) Sub-Inspector Ravindra Kumar Chamoli, (PW3) Senior Sub-Inspector J.P. Juyal and (PW9) Inspector Sanjay Singh were member of the raiding party. They are witnesses to the recovery and arrest of the respondent- accused. (PW4) Constable Brahampal Singh is the scriber of the First Information Report of Case Crime No. 707 of 2000 (Ext. Ka. 5). (PW7) A.S.I. Surendra Singh, (PW8) S.I. Mohan Shyam Saraswat and (PW10) S.I. Ram Chandra Tripathi are Investigating Officers.
7. Statements of the respondent-accused were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein, he denied the entire evidence of the prosecution.
8. Respondent-accused has examined Gagan Deep (DW1) in his defence evidence.
9. Learned Trial Court heard arguments, appreciated the evidence on record and held that the prosecution has failed to prove its case against the respondent-accused beyond all reasonable doubt.
10. Heard Mr. S.S. Adhikari, learned Deputy Advocate General for the appellant and Mr. Bhuvnesh Joshi, learned counsel holding brief of Mr. Vivek Shukla, learned counsel for the respondent-accused.
11. Mr. S.S. Adhikari, learned Deputy Advocate General, contended that learned Trial Court has completely 4 overlooked the glaring facts of the case, according to which, the involvement of the respondent-accused, has been fully proved. Therefore, the impugned judgment of acquittal is not justified in the eyes of law.
12. On the other hand, Mr. Bhuvnesh Joshi, learned counsel appearing for the respondent-accused, has supported the impugned judgment.
13. The law is well settled that the judgment of acquittal strengthen the presumption of the innocence of the accused. Equally, it is the duty of the Court to see that the guilt do not escape punishment. Therefore, I have carefully assessed the evidence, adduced by the prosecution.
14. According to the evidence of Senior Sub-Inspector Yogendra Pal Singh Bhadoriya (PW1), Senior Sub-Inspector J.P. Juyal (PW3) and Inspector Sanjay Singh (PW9), when the respondent-accused was arrested, he confessed his guilt before them.
15. Section 25 of the Indian Evidence Act, 1872 is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible under Section 26 of the Indian Evidence Act, 1872 unless made in the immediate presence of a Magistrate.
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16. The charge was framed against the respondent- accused that two fake currency notes of Rs. 100-100 were recovered from his possession.
17. (PW2) Sub-Inspector Ravindra Kumar Chamoli has stated in his examination-in-chief that he did not remember what was recovered from which accused. According to the Senior Sub-Inspector J.P. Juyal (PW3) and Inspector Sanjay Singh (PW9), nine thousand currency notes of 100-100 were recovered from the pocket of the pants worn by the respondent-accused. Seeing the recovery memo, Inspector Sanjay Singh (PW9) has stated that according to the recovery memo, two rupees were recovered from the accused and he is not able to confirm whether the fact of two rupees being recovered is true or false. According to the Senior Sub-Inspector Yogendra Pal Singh Bhadoriya (PW1), two fake currency notes of 100-100 were recovered from the pocket of the accused, but, when the alleged recovered currency notes were taken out from the bundle at the time of his evidence, ninety notes of 100-100 were found out of it.
18. The case of prosecution is that when the police party along with respondent-accused reached Laxmi Narayan Dharamshala, Shyam was seen running away from the gate of the said Dharamshala. The lock of room no. 203 of the said Dharamshala, in which Shyam was staying, was broken in the presence of the manager and the staff of 6 Dharamshala and the articles recovered from the said room were sealed on the spot.
19. Contrary to the case of the prosecution, it has been stated by Inspector Sanjay Singh (PW9) that when Shyam was seen for the first time, he was in the lane. He has stated in his cross-examination that the articles recovered in Dharamshala were not sealed on the spot.
20. The alleged recovery dated 31.08.2000 was made in the absence of independent witness, whereas, the statements of the witnesses of police regarding the said recovery do not inspire confidence.
21. The prosecution has neither disclosed the name of the manager and the staff of the said Dharamshala, in whose presence the alleged recovery is said to have taken place, nor the signature of any of them is on the recovery memo, nor the register of Dharamshala has been produced by the prosecution. Under the said circumstances, it appears that if manager or staff members of the Dharamshala had been examined by the prosecution, their evidence would not have supported the prosecution's case.
22. The prosecution has to establish beyond all reasonable doubt that the alleged offence was committed by the respondent-accused. Even grave suspicion cannot take place of proof.
23. On a detailed examination of the evidence, produced by the prosecution, in my considered view, the 7 prosecution has failed to establish the commission of the alleged offence by the respondent-accused beyond all reasonable doubt. Therefore, this Court upholds the view taken by the Trial Court.
24. As a result, the instant Government Appeal is liable to be dismissed. The said Government Appeal is dismissed accordingly.
__________________ ALOK KUMAR VERMA, J.
th
Dt: 9 June, 2023
Shiksha