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2011 DIGILAW 466 (UTT)

SABIR HUSSAIN v. STATE

2011-07-27

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon’ble Servesh Kumar Gupta, J.: This criminal revision, preferred under Section 397 read with Section 401 CrPC, is directed against the judgment and order dated 13.5.2002, passed by the Sessions Judge, Nainital in Criminal Appeal No. 1/2002, whereby the conviction of the accused revisionist Sabir Hussain under Section 420, 467 & 471 IPC and sentence awarded to him to undergo R.I. for five years for each of the offence (directed to run concurrently) along with fine of Rs. 2,000/- each (total Rs. 6,000) vide judgment and order dated 24.1.2002, passed by the Chief Judicial Magistrate, Nainital in Criminal Case No. 1853/2000, has been affirmed. 2. Brief facts of the case are that in the intervening night of 18/19.6.2000, at about 11 pm, when the forest officials, namely, Bhim Bahadur and Soran Lal were on duty at the Barrier of Halduwa Check Post of the forest department, Ramnagar, a truck, owned by the revisionist and loaded with forest woods, was stopped at the said Check Post. The truck was checked by the aforenamed forest officials. Revisionist came out from the cabin of the truck along with relevant papers of the truck, transit pass, permit etc. When the forest officials were busy in checking of those papers, the revisionist along with the truck escaped from the spot. The forest officials could not chase the truck due to lack of transport facility. They took all those papers to their superior officer, and on enquiry, all the papers were found to be forged one. On the forged transit pass, the name of the truck driver was mentioned as Babbu. With these averments, Bhim Bahadur (PW3) and Soran Lal lodged an FIR on 21.6.2000 against the revisionist with PS Ramnagar. A case was registered against the accused revisionist. Investigation was conducted and during the course of investigation, when search was made at the place of the revisionist, a lot of other incriminating articles including 21 forged seals were recovered from him. On completion of the investigation, the chargesheet was submitted and after recording the statements of all the fact witnesses as well as the evidence of the Investigating Officer and other evidence, the accused revisionist was convicted and sentenced, as discussed above. 3. I have heard learned Counsel for the revisionist and learned Brief Holder for the State and perused the lower court record. 4. 3. I have heard learned Counsel for the revisionist and learned Brief Holder for the State and perused the lower court record. 4. The sole contention, put forth by the learned Counsel for the revisionist, is that the selfsame police officer, who raided the place of the revisionist and recovered the incriminating articles from there, cannot proceed with the further investigation and file the chargesheet against the accused. In support of his contention, learned Counsel cited a judgment of Hon’ble Rajasthan High Court rendered in case of Gyan Chand v. The State of Rajasthan reported in 1993 CRL. L.J. 3716, wherein it was held that if a police officer, who after receiving information of an offence makes search and seizure, then further investigation of the case personally by him is not fair. It is violative of the principles of criminal jurisprudence. 5. Having gone through the facts of the case (supra), this Court is unable to accept the contention of the learned Counsel for the revisionist inasmuch as in that case the investigation was conducted by a police officer, who initially got the information that the accused Gyan Chand used to keep and sell opium unauthorisedly. When he got this information that opium can be recovered from his house if search is made immediately, then the Circle Inspector of the police who raided the house of the accused and recovered the unauthorised opium and other incriminating articles should not investigate the matter and the same should be entrusted to some other competent officer. The Hon’ble Rajasthan High Court too observed that the selfsame police officer, who raided the house of the accused Gyan Chand and seized the contraband and other incriminating articles, could not have himself investigated the matter. But in the instant case, the facts entirely are different. Crime was committed by the revisionist in the intervening night of 18/19.6.2000, when he escaped from the spot along with the truck loaded with forest woods, leaving behind forged transit pass, permits and other papers at the barrier itself. The forest officials reported the matter to their superior officer, and on suspicion, the aforesaid papers were got checked and verified from the concerned quarters, whereupon the same were found to be forged. Thereafter a report was lodged by the forest officials and the crime was registered against the revisionist. The forest officials reported the matter to their superior officer, and on suspicion, the aforesaid papers were got checked and verified from the concerned quarters, whereupon the same were found to be forged. Thereafter a report was lodged by the forest officials and the crime was registered against the revisionist. Subsequent thereto, the investigation was entrusted to SI Preetam Lal (PW4), who during the course of investigation recovered further incriminating articles from the place of the accused revisionist. Therefore, learned Counsel for the revisionist cannot derive any help from the precedent cited by him (supra). 6. On the contrary, Full Bench of the Hon’ble Apex Court, in the case of A.C. Sharma v. Delhi Administration, 1973 AIR SC 913, has held that the function of investigation is merely to collect evidence and any irregularity and even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial of the offence so investigated, unless the miscarriage of justice has been caused thereby. In yet another case Mehar Ban & Ors. V. State of U.P., 2010 (1) JIC 519, a Division Bench of Hon’ble Allahabad High Court held that the laches of the investigation cannot be allowed to thwart otherwise reliable prosecution evidence. Further, in case of State of U.P. v. Hari Mohan, 2001 Cr.L.J. 170, the Hon’ble Apex Court has laid down the law that the investigation, even if defective in nature, cannot be made out a basis for acquitting the accused, when a case is made out against all or any of the accused persons. This law has further been reiterated by the Hon’ble Apex Court in the case of Dhanaj Singh v. State of Punjab, 2004 SAR (Criminal) 403 S.C. 7. Moreover, in the instant case, the witnesses of the fact K.C. Pande (PW1), Lalta Prasad Joshi (PW2), Bhim Bahadur (PW3) and the witness of recovery Preetam Lal (PW4), the I.O., have been examined. They were duly cross-examined at length by the defence counsel, but nothing has come out in their testimony to discard the prosecution story. The evidence adduced by the prosecution is reliable, trustworthy and inspire the confidence. The prosecution has successfully proved its case against the accused revisionist beyond any shadow of doubt. I do not find any illegality or impropriety in the impugned judgment and order of the learned Sessions Judge. 8. The evidence adduced by the prosecution is reliable, trustworthy and inspire the confidence. The prosecution has successfully proved its case against the accused revisionist beyond any shadow of doubt. I do not find any illegality or impropriety in the impugned judgment and order of the learned Sessions Judge. 8. For the reasons recorded above, the present criminal revision is devoid of merit and the same is hereby dismissed. The judgment and order dated 13.5.2002, passed by the Sessions Judge, Nainital in Criminal Appeal No. 1/2002 is upheld. Conviction of the accused revisionist and sentence awarded to the accused revisionist is affirmed. The revisionist Sabir Hussain is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence awarded to him. 9. Let a copy of this judgment and order be sent to the court below for compliance. Lower court record be sent back.