Harish Kahar vs State
2017 Latest Caselaw 5847 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 06.10.2017
 
Judgment Delivered on : 27.10.2017
 
In Chamber
 

 
Case :- JAIL APPEAL No. - 3941 of 2009
 

 
Appellant :- Harish Kahar
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Ved Prakash Pandey A/C
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Umesh Chandra Tripathi,J.

1. This appeal is directed against the judgment and order dated 06.05.2009 passed by Additional Sessions Judge/F.T.C. Court No. 20, Allahabad in Session Trial No. 473 of 2000 (State v. Sanjay Kumar Mehtar and others) whereby appellant Harish Kahar and co-accused Sanjay Kumar Mehtar were convicted under Section 412 of Indian Penal Code (hereinafter referred to as 'IPC') and both of them were sentenced to rigorous imprisonment for a period of seven years and to pay fine of Rs. 10,000/- and in default of payment of fine, rigorous imprisonment for another six months.

2. The brief facts of prosecution case are that on 25.11.1999 at about 08.00 P.M., six unknown person armed with country-made pistol (katta) and knife entered into the house of complainant/informant Ajay Kumar Srivastava and on point of 'katta' looted one gold chain, two gold earrings (baali), two gold 'tapas', one silver plate, five silver 'paan ', five silver 'supaadi ' and Rs. 3,000/- cash.

3. On the information of informant Ajay Kumar Srivastava, an F.I.R. under Section 395 IPC was lodged at Police Station- Colonelganj at Case Crime No. 1208 of 1999.

4. Accused Lal Bahadur @ Kancha Pahadi, Anant Kumar, Mohan Bahadur @ Raju Pahadi and Rajesh Chaudhari were arrested by police in Crime No. 78 of 2000 under Section 307 IPC on 05.03.2000. Accused Lal Bahadur and Mohan Bahadur confessed before the police to have committed the dacoity. On their information and on pointing of accused Sanjay Kumar Mehtar, a bag having stolen articles- one gold chain, two gold 'tapas ', two earrrings and one silver plate and 'supaadi ' were recovered from his house on the same day i.e. 05.03.2000 at about 10.30 P.M.

5. Accused Lal Bahadur and Mohan Bahadur also confessed before police that with them, accused Sanjay Kumar Mahtar, Rajesh and Harish Kahar also participated in the alleged dacoity.

6. After investigation, the police submitted charge-sheet against accused Lal Bahadur, Mohan Bahadur, Sanjay Kumar Mehtar, Rajesh and appellant Harish Kahar under Sections 395, 412 IPC.

7. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions. Thereafter, it was made over for trial and disposal to the court of Additional Sessions Judge/F.T.C. Court No. 20, Allahabad. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them. Therefore, it framed charges against them under Section 395, 412 IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

8. The prosecution in order to prove the guilt of the accused examined as many as nine prosecution witnesses, out of whom Himanshu Srivastava (P.W.1), Ajay Kumar Srivastava (P.W.2), Smt. Malti Srivastava (P.W.3) and Smt. Sarita Srivastava (P.W.4) were examined as witnesses of fact, whereas S.I. D.D. Shukla (P.W.5), H.C.P. Ram Lal Kaithal (P.W.6), S.I. Pandh Bahadur Singh (P.W.7), D.K. Singh (P.W.8) and Govind Mishra (P.W.9) were examined as formal witnesses.

9. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 of The Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), wherein, he claimed to have been falsely implicated in the case due to enmity.

10. The defence did not lead any evidence, whatsoever.

11. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgment and order.

12. Hence, this appeal.

13. Heard Sri Ved Prakash Pandey, learned Amicus Curiae on behalf of the appellant and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh.

14. Learned counsel for the appellant contended that no offence against the applicant is made out and without properly appreciating the evidence, the trial court has passed the impugned order against the appellant.

15. In this case Himanshu Srivastava (P.W.1), Ajay Kumar Srivastava (P.W.2), Smt. Malti Srivastava (P.W.3) and Smt. Sarita Srivastava (P.W.4) have been declared hostile by the prosecution. Stolen properties have not been produced in the court by the prosecution for identification by the witnesses.

16. P.W.1 Himanshu Srivastava stated before the court that the occurrence had taken place in dark night. The dacoits had masked their faces. He could not identify Lal Bahadur and Sanjay Kumar Mehtar present in the court.

17. P.W.2 Ajay Kumar Srivastava expressly stated before the court that accused Sanjay Kumar Mehtar, Rajesh and Lal Bahadur present in the court have not participated in the dacoity. He didn't knew whether the stolen property has been recovered or not.

18. P.W.3 Smt. Malti Srivastava also stated before the court that accused Lal Bahadur and Sanjay present in the court were not involved in the dacoity. She admitted that the recovered stolen property have not been produced before her for identification.

19. P.W.4 Smt. Sarita Srivastava also made the same statement.

20. None of the witnesses identified any accused nor any recovered article as alleged, was produced before them for identification. There is also no evidence on record to show that recovered articles were of gold or silver and that the articles were looted in dacoity from complainant/informant Ajay Kumar Srivastava and his family.

21. Here it must be noted that appellant Harish Kahar was not arrested by police on 05.03.2000 in Case Crime No. 78 of 2000 under Section 307 IPC nor any stolen property has been recovered from his possession or on his information. He has been made accused only on the basis of confessional statement of co-accused Lal Bahadur and Mohan Bahadur before the police. They confessed that with them accused Sanjay Kumar Mehtar, Rajesh and appellant Harish Kahar had also participated in the dacoity.

22. As per provision of Section 25 of the Indian Evidence Act, 1872 "No confession made to a police officer, shall be proved as against a person accused of any offence". Therefore, confessional statement of accused Lal Bahadur and Mohan Bahadur before the police is not admissible as evidence against the accused. The learned Sessions Judge has convicted the appellant on the basis that dacoity had taken place and stolen property has been recovered.

23. Here, I have restrained myself to observe the finding of trial court in respect of accused-appellant Harish Kahar. Only because dacoity had taken place and some property has been recovered from the possession of an accused, anyone cannot be convicted without any evidence. The learned trial court has not considered whether any evidence against accused-appellant Harish Kahar is available or not. It is very unfortunate and strange that without any evidence, only on the basis of the confessional statement of co-accused Lal Bahadur and Mohan Bahadur before police, which is not admissible as evidence against the accused, appellant Harish Kahar had been arrested by the police, remanded by Magistrate under Section 167 Cr.P.C. and police report under Section 173 Cr.P.C. has also been submitted before the Magistrate. The Magistrate has taken cognizance and committed the case to the Court of Sessions. The learned Sessions Judge has framed charges against him and ultimately he has been convicted under Section 412 IPC and sentenced to seven years' rigorous imprisonment. It is also unfortunate that the appellant has completed his sentence for an offence in which there was no evidence against him.

24. Now the order of acquittal is meaningless for him. I can only say that this situation may not arise in future.

25. In view of above, conviction of appellant Harish Kahar under Section 412 IPC is not sustainable.

26. The appeal is accordingly allowed. Conviction of appellant Harish Kahar under Section 412 IPC is set aside and he is acquitted.

27. Let the judgment be placed before Hon'ble The Chief Justice to consider about issuing direction(s), if necessary, to the authorities concerned so that such a situation may not arise in future.

Order Date :- 27.10.2017

I. Batabyal

[Umesh Chandra Tripathi,J.]

In Chamber

Case :- JAIL APPEAL No. - 3941 of 2009

Appellant :- Harish Kahar

Respondent :- State

Counsel for Appellant :- From Jail,Ved Prakash Pandey A/C

Counsel for Respondent :- A.G.A.

Today the appeal was allowed. Sri Ved Prakash Pandey, Advocate has appeared and argued on behalf of the appellant as an Amicus Curiae. I appreciate the assistance provided by him.

Office/Registry is directed to pay fees to Sri Ved Prakash Pandey, Amicus Curiae as per rules, at the earliest.

Order Date :- 27.10.2017

I. Batabyal

[Umesh Chandra Tripathi,J.]