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2023 DIGILAW 340 (UTT)

State of Uttarakhand v. Vikas Kumar

2023-05-25

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. Delay Condonation Application (01 of 2023) Heard learned counsel for the parties on the delay condonation application. 2. We have perused the application moved by the appellant/State. There is delay of 75 days in filing the government appeal. The reasons shown in the affidavit filed in support of the delay condonation application are sufficient to condone the delay. Hence, the delay in filing the government Appeal is hereby condoned. Leave To Appeal No.54 of 2023 Heard learned counsel for the parties on Leave to Appeal application. 2. This Leave To Appeal has been preferred by the State/appellant against the order dated 10.10.2022 passed by the IVth Additional Sessions Judge, Haridwar whereby the respondents/accused have been acquitted of the charges leveled against them under Sections 411, 413, 420, 468, 471 and 401 of IPC in Sessions Trial No.67 of 2014 State vs. Vikas Kumar and Another. 3. In a nutshell the prosecution story is that on 23.01.2013 the police party took respondents-accused Vikas Kumar and Yavar Abbas, arrested for the purpose of recovery from Police Station vide Rapat No.62 at 22:00 hours and reached to village Anneki, Police Station Ranipur. When they reached in the village, accused persons told the police party about the house where they were living on rent. Police party entered into the house and on their pointing out 07 motorcycle, 02 Hero Honda Passion Pro, 01 Hero Honda C.D. Delux, 04 Splender Plus were recovered; respondent-accused Vikas told the police that the red coloured Passion Pro which was standing in the verandah belonged to him but they have replaced the engine of it with the stolen motorcycle. The accused persons showed the RC of Vehicle No.UP12U 2188 on which Chasis No.MBLHA10ER9GK32762 and Engine No.HA10ED9GK34273 was written. When this RC was matched with the RC of vehicle which accused Vikas claimed his own vehicle, on that vehicle Chasis Number was different and similar was the position with other vehicles. According to the prosecution the respondents/accused fraudulently changed engine of the vehicles in preparing forged RCs. On the basis of the aforesaid memo of recovery, Case Crime No.400 of 2013 under Sections 411, 413, 420, 468, 471 and 401 of IPC was registered against both the respondents/accused. 4. After investigation, the charge sheet was submitted and the case was committed to the court of Sessions for trial. On the basis of the aforesaid memo of recovery, Case Crime No.400 of 2013 under Sections 411, 413, 420, 468, 471 and 401 of IPC was registered against both the respondents/accused. 4. After investigation, the charge sheet was submitted and the case was committed to the court of Sessions for trial. Learned IVth Additional Sessions Judge acquitted the respondents/accused of the charges by reason of the judgment and order dated 10.10.2022. Against the acquittal order present Leave to Government Appeal has been preferred. 5. Learned counsel for respondent no.2/accused submitted his objection against Leave to Government Appeal. 6. Heard Mr. J.S. Virk, Deputy Advocate General for the appellant/State and Mr. Mohd. Umar, Advocate for respondent no.2. 7. Learned Deputy Advocate General Mr. J.S. Virk, in support of the Leave to Appeal drew this Court’s attention to the impugned judgment and tried to convince by reading the recovery memo dated 23.10.2013 that these 07 motorcycles and forged RCs were recovered on the pointing out of the accused. The learned IVth Additional Sessions Judge committed serious illegality by disbelieving the prosecution story and acquitting the respondents/accused. 8. Per contra the counsel for the respondents/accused submitted that the recovery on which the entire prosecution case rests does not inspire any confidence, mainly for the reason that no disclosure statement has been recorded by the Investigating Officer before effecting the recovery under Section 27 of the Evidence Act. He further submitted that there is no independent witness of the alleged recovery; the alleged recovered motorcycles were not placed before the Sessions Court during trial; no FIR of theft regarding the alleged motorcycles and engines were there and finally there is no material available with the prosecution to prove that the engines and Chasis Number of the allegedly recovered vehicles were manipulated as no information to this effect has been called by the Investigating Officer from the RTA which is evident from the evidence of P.W.1. 9. He further submitted that owner of the house Ram Kumar wherefrom the alleged recovery was made has not been made a witness to the recovery and no explanation has been offered by the police. 10. On the strength of the aforesaid submissions Mr. Mohd. 9. He further submitted that owner of the house Ram Kumar wherefrom the alleged recovery was made has not been made a witness to the recovery and no explanation has been offered by the police. 10. On the strength of the aforesaid submissions Mr. Mohd. Umar, counsel for the respondent no.2/accused person submitted that there is no infirmity in the acquittal of respondents/accused persons by the impugned judgment and order dated 10.10.2022 passed by the learned IVth Additional Sessions Judge, Haridwar. 11. We have carefully perused the recovery memo as well as the judgment and order passed by the learned trial court. The learned IVth Additional Sessions Judge found fault with the prosecution story and held that it failed to prove the charges against the respondents/accused beyond all reasonable doubt inasmuch as there was no information, report with the police or any police station in respect of the theft of these motorcycles allegedly recovered by the police at the pointing out of the respondent/accused Vikas Kumar. Learned IVth Additional Sessions Judge disbelieved the so called recovery of motorcycles, on which the entire prosecution case rests on a very legal ground that before the recovery under Section 27 of the Evidence Act, no disclosure statement was found in the entire record. The Learned IVth Additional Sessions Judge also disbelieved the theory of recovery for the reason that from the record it is proved that the alleged recovery was made from a crowded place but any independent witness was neither made a witness nor was examined by the prosecution. The motorcycles in respect of which it transpires that the forged registration certificates were prepared, there is no report of RTO regarding this fact. Thus, the learned IVth Additional Sessions Judge found the entire prosecution case highly suspicious and the recovery was not at all believed by the Learned IVth Additional Sessions Judge. 12. We are in full agreement with the reasoning given by the learned IVth Additional Sessions Judge and his conclusion that the prosecution failed to prove its case beyond all reasonable doubt against the respondents/accused. Hence, we are not inclined to grant Leave to Appeal. The Leave to Appeal is rejected as a consequence to which Government Appeal also stands dismissed.