Salman Khan vs State Of U.P.
2018 Latest Caselaw 1913 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 09.07.2018
 
Delivered on :  09.08.2018
 

 
Court No.50
 
Case :-  Jail Appeal No. 1125 of 2017
 
Appellant :- Salman Khan
 
Respondent :- State of U.P.

Counsel for Appellant :- From Jail, Arivind Kumar Goswami

Counsel for Respondent :- A.G.A.

Hon'ble Harsh Kumar J.

This appeal has been filed against the judgement and order of conviction dated 25.11.2016, passed by Additional Sessions Judge/Special Judge E.C. Act, Gorakhpur in Sessions Trial No. 360 of 2013, Case Crime No. 35 of 2013, under Sections 413 & 414 IPC, Police Station Kotwali, District Gorakhpur, by which the sole accused-appellant has been convicted for the offences under Sections 413 and 414 IPC and sentenced with five years rigorous imprisonment and Rs. 5000/- fine under Section 413 IPC and one year rigorous imprisonment and Rs. 1000/- fine under Section 414 IPC with default clauses for two months and one month additional imprisonment respectively.

Heard Sri Arivind Kumar Goswami, learned Amicus Curiae for the appellant and learned AGA.

Learned Amicus Curiae submitted that the appellant is a poor motor mechanic who used to repair the motorcycles of police personnel and on asking for charges of motorcycle repair he has been falsely implicated; that there is no independent witness of the recovery of a stolen motorcycle from the possession of appellant and of further recovery of three stolen motorcycles at his pointing on 18.01.2013 and the above recovery has been wrongly and falsely planted on him; that the prosecution has failed to prove the charges against the appellant by any independent and trustworthy evidence beyond reasonable doubt; that the impugned judgment and order of conviction is wrong and incorrect and is liable to be set aside.

Per contra, learned AGA supported the impugned judgment and contended that it is wrong to say that the appellant has been falsely implicated on account of demanding of bike repair charges by him from the police official; that he has not disclosed as to motorcycle of which policemen was repaired by him and what were the charges, which were demanded by him and from whom.

Upon hearing the learned Amicus Curiae, Sri L.D. Rajbhar, learned AGA and perusal of record as well as record of Court below summoned in appeal and considerig the evidence on record.

Before proceeding to the facts of the case, I find it appropriate to reproduce the provisions of Sections 410, 413 & 414 IPC as under:-

"Section 410 IPC (Stolen Property)- Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designed as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

Seection 413 IPC (Habitually dealing in stolen property)- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 414 IPC (Assisting in concealment of stolen property)- Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".

In order to prove the charges under Sections 413 and 414 IPC against the appellant, the prosecution has produced six witnesses, Vijendra Singh, the first informant and S.H.O. Kotwali, Gorakhpur as PW-1, Constables (Vijay Prakash Dixit) and Saheb Singh Yadav, of P.S. Kotwali, Gorakhpur who were members of the Police Party under S.H.O. Vijendar Singh as PW-2 and PW-3 Satendar Bahadur Singh, S.I. and Ram Nath Yadav, S.I., respectively IInd and Ist Investigating Officer of the case as PW-4 & 6 and constable Ravi Shankar Gupta as PW-5 to prove the said F.I.R.

The perusal of evidence on record show that as per F.I.R. the police party led by Vijendar Singh S.H.O. P.S. Kotwali, Gorakhpur apprehended the appellant at about 2:20 P.M. on 18.01.2013 at Ghosh Company Chauk, Gorakhpur and recovered from him a Hero Honda Splendor Plus motorcycle which he confessed then to be stolen motorcycles and to be stolen motorcycle and on his pointing recovered three more motorcycles behind the old jail inside the small boundary wall and confessed that he deals with stolen motorcycles and was going to sell the Hero Honda Splendor Plus motorcycle recovered from him at Ghosh Company Chauk. Except the statement of first informant as PW-1 connecting the above motorcycles with Case Crime Nos. 341 of 2012, 5 of 2013, 32 of 2013 and 224 of 2012, there is nothing on record to connect the above motorcycles with any case of theft. There is nothing on record to show that the above recovered motorcycles were stolen motorcycles. Moreover, undisputedly there is no independent witness of alleged recovery while PW-1 has admitted in his cross-examination that at the place of alleged recovery there are several shops and has further stated that he asked several shopkeepers for becoming witness but non of them agreed. However, no such whisper is there in the memo of recovery rather it has been mentioned that several public persons gathered there, but left upon being asked for witness. It is pertinent to mention that there is no independent, cogent evidence on record worth reliance to move that the above mentioned motorcycles were at all recovered from appellant and he was habitually dealing in stolen property or assisting in concealment of stolen property, except his confessional statement in police custody at the spot after arrest, which is not admissible in evidence.

It is also pertinent to mention that at the time of incident Vijendar Singh PW-1 was S.H.O. Of P.S. Kotwali, Gorakhpur and at the same time PW-6 and PW-4 Sri Ram Nath Yadav and Satendar Bahadur Singh were sub Inspectors under him at the same police station and were worked under control of and as subordinate to Vijendar Singh who are respectively Ist and IInd Investigation Officer of this Case Crime No. 35 of 2013.

It is settled principle of law that the Investigating Officer if subordinate to the complainant, fair investigation may not be expected from him. In the case Raghubir Singh Vs. State of U.P., 1995 Allahabad Criminal Cases 216, this Court has held that

"investigation by officer subordinate to complainant is not proper and cannot be held impartial".

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 "M. Lal and others Vs. State fo U.P. and others, 2016 (6) ALJ 635."

Upon careful consideration of evidence on record, I find that Vijendar Singh, the complainant in his statement in oath as PW-1 as admitted in his cross-examination that the investigation of this case was done by S.I. Satendar Bahadur Singh PW-4 and prior to him by S.I. Ram Nath Yadav PW-6 and both the Investigating Officers were working under his direct control in the same police station Kotwali and were subordinate to him. Similarly, IInd I.O. Satendar Bahadur Singh has also admitted in his cross-examination as PW-4 that complainant of this case S.O. Vijendar Singh is senior to him but it is wrong to say that under his influence he did not investigate the matter properly.

In view of the discussions made above, I have come to the conclusion that the prosecution has failed to prove that fair investigation was done in this matter or that the recovery of four motorcycles was ever made from the accused-appellant. It has also failed to prove that the accused-appellant was habitually dealing in stolen property or was assisting in concealment of stolen properties. The alleged recovery from open place within alleged small boundry behind old jail as well as from Ghosh Company Chauk is also not reliable in absence of any independent witness. In the circumstances the argument advanced by the Amicus Curiae that appellant was a motorcycle mechanic, used to repair the motorcycles of police personnel and has been falsely implicated on account of demanding the repair charges by him from policemen, carries weight.

I find that the learned Trial Court has failed to appreciate the evidence on record correctly and acted wrongly in relying on the interested evidence of police personnel as well as two Investigating Officers who were subordinate to the complainant without appreciating that there was two fair investigation even. The impugned judgment and order of conviction, convicting the accused-appellant for the offences under Sections 413 and 414 IPC is wrong and incorrect and is liable to be set aside and appeal is liable to be allowed.

The appeal is allowed. The impugned judgment and order of conviction under Sections 413 and 414 IPC as well as sentence is set aside and the appellant is acquitted of the charges levelled against him.

The appellant is not on bail and is reported to be in custody. He shall be released forthwith unless wanted in some other case.

I appreciate the valuable assistance rendered by learned amicus curiae Sri Arivind Kumar Goswami, Advocate.

Office is directed to communicate this order to District and Sessions Judge, Gorakhpur as well as Jail Suprintendent Gorakhpur through FAX and E-mail forthwith for ascertaining immediate release of appellant from prison.

Office is also directed to send the lower Court record to Court below along with a copy of judgment without any delay.

Order Date :- 09.08.2018

Kamar

Court No.50

Case :- Jail Appeal No. 1125 of 2017

Appellant :- Salman Khan

Respondent :- State of U.P.

Counsel for Appellant :- From Jail, Arivind Kumar Goswami

Counsel for Respondent :- A.G.A.

Hon'ble Harsh Kumar J.

Sri Arivind Kumar Goswami, 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 :- 09.08.2018

Kamar