Allahabad High Court
Mote vs State Of U.P. on 7 August, 2018
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 50
Case :- CRIMINAL APPEAL No. - 369 of 1988
Appellant :- Mote
Respondent :- State Of U.P.
Counsel for Appellant :- Kripa Shankar Tewari
Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
1. The present criminal appeal has been filed against the impugned judgment and order dated 29.1.1988 passed by IV Additional Sessions Judge, Mirzapur in S.T. No.214 of 1987 (State Vs. Mote), convicting the accused-appellant Mote under Sections 25(1)(a) & 27 Arms Act and under Section 307 I.P.C. and sentencing him with rigorous imprisonment for a period of 2 years, 2 years & 5 years respectively.
2. Heard Sri Sarvesh Kumar Dubey, learned Amicus Curiae for accused-appellant, Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.
3. Upon hearing the parties' counsel and perusal of paper-book as well as the original record of court below summoned in the appeal, I find that as per prosecution case Station Officer Sri Dhirendra Rai of P.S. Pannuganj, Tehsil Robertsganj, District Mirzapur during investigation and search of the accused of Case Crime No.74 of 1987, under Section 302 I.P.C. upon information of informer found three persons and asked them to stop, upon which one of them fired at him with an intention to cause death of police personnel and two accused fled away by firing and when the former tried to reload his pistol he was apprehended with the country-made unauthorized pistol at 4:00 p.m. on 15.5.1987 in the jungles of village Suarsote. After above recovery Case Crime No.78 of 1987 was registered against the sole accused-appellant Moti under Section 307 I.P.C. and Case Crime No.79 of 1987 under Sections 25, 26 & 27 Arms Act. The charges were framed against him and the prosecution in order to prove the charges produced Dhirendra Rai, the complainant as P.W.-1, Constable Jeebu Mandal as P.W.-2 and S.I. Girish Chandra Singh as P.W.-3 and closed. The P.W.-2 was the member of patrol-party of P.W.-1 and has corroborated him while P.W.-3 is the Investigating Officer. It is pertinent to mention that P.W.-3 was Sub Inspector at same P.S. Pannuganj of which the complainant of this case i.e. P.W.-1 was S.O. and undisputedly the P.W.-3 was working as subordinate to P.W.-1.
4. It is settled principle of law that if the I.O. is subordinate to the complainant, fair investigation may not be expected from him. In the case of Raghubir Vs. State of U.P., 1995 Allahabad Criminal Cases 216, this Court held that
"investigation by Officer subordinate to complainant is not proper and cannot be held impartial".
5. The above case law was relied by this Court again in the case of "Shyam Kumar Vs. State of U.P., 2008 (2) ACR 1436" and in the case of "M. Lal and others Vs. State of U.P. and others, 2016 (6) ALJ 635."
6. In view of above legal position the investigation of the case by subordinate officer to the complainant may not be relied. Moreover in this police party no injury encounter case, there is no independent witness of recovery and arrest of the accused-appellant and there is no incriminating evidence against the accused-appellant except his confessional statement in police custody. Though there is no whisper in the recovery memo/F.I.R. but in his statement on oath the first informant has addressed the three miscreants as dacoits out of which one Moti, the appellant was arrested by him and allegedly confessed in police custody of pendency of three cases of kidnapping and one case of encounter against him in various places in the State of Bihar. Undisputedly the appellant is resident of Bihar but there is nothing on record to show that he was a dacoit or was wanted in several cases in the State of U.P. or in the State of Bihar and in absence of any evidence, he may not be treated to be a dacoit.
7. In view of the discussions made above, learned trial court has acted wrongly and illegally in relying on the testimony of interested witnesses without corroboration by any independent witness and without considering that there was no fair investigation of the case, as it was conducted by an officer, who was subordinate to the complainant of the case. The trial court acted illegally and wrongly in convicting the appellant for the offences under Sections 25(1)(a) & 27 Arms Act and under Section 307 I.P.C. without there any reliable, cogent or reliable evidence on record. Hence the impugned judgment and order of conviction and sentence is liable to be set-aside and appeal is liable to be allowed and appellant is liable to be acquitted.
8. The appeal is allowed accordingly. The impugned judgment and order convicting the appellant Moti for the offences under Sections 25(1)(a) & 27 Arms Act and under Section 307 I.P.C. and sentencing him with rigorous imprisonment for a period of 2 years, 2 years & 5 years respectively is set-aside.
9. The appellant Moti is on bail. He need not to surrender. His bail bonds and surety bonds are cancelled and sureties are discharged.
10. The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.
11. I appreciate the valuable assistance rendered by learned amicus curiae Sri Sarvesh Kumar Dubey, Advocate.
12. Let lower court record be sent back to court below along with a copy of this order for necessary compliance.
Order Date :- 7.8.2018
Kpy
Case :- CRIMINAL APPEAL No. - 369 of 1988
Appellant :- Mote
Respondent :- State Of U.P.
Counsel for Appellant :- Kripa Shankar Tewari
Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
Sri Sarvesh Kumar Dubey, Advocate was appointed as Amicus Curiae in this case.
Registrar General of this Court is directed to pay an honorarium of Rs.5,500/- to the learned amicus curiae for rendering effective assistance in the matter. The said amount be paid to him within two months.
Order Date :- 7.8.2018
Kpy
