Vijai Prakash vs The State Of U.P.
2025 Latest Caselaw 3506 ALL

Allahabad High Court

Vijai Prakash vs The State Of U.P. on 15 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:2563
 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 2561 of 2006
 

 
Appellant :- Vijai Prakash
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- S N Pandey,Miss Sweta Gupta,Shailendra Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.
 

1. Heard Shri Shailendra Singh, learned counsel for the appellant as well as learned AGA for the State and perused the record.

2. Learned counsel for the appellant submits that the appellant was convicted by the trial court vide judgement and order dated 18.01.2006 passed by the Additional Sessions Judge/ Fast Track Court No.1, Hardoi in Session Trial No. 388 of 2000, (State Vs. Swetory and others) and Sessions Trial No. 388 A of 2000, (State Vs. Vijay Prakash), Session Trial No. 1174 of 2004, State Vs. Rajubba @ Rajpal and Session Trial No. 5/2005, State Vs. Allu, under Sections 395, 397, 412 IPC as well as convicted under Section 412 IPC and the said judgment and order of sentencing was challenged before this Court by filing the instant appeal, however, the appellant Vijay Prakash was in jail and has undergone whole of the sentence so imposed by the trial court and has been released from the prison.

3. It is further submitted that the appellant has given instructions to him (learned counsel for the appellant) not to contest the appeal on merits as he has already undergone whole of the sentence so imposed by the trial court. Thus, the appeal be dismissed as has become infructuous.

4. Learned AGA on the other hand submits that the matter is to be adjudicated by this Court in pursuance of the evidence available against the appellant.

5. Having heard learned counsel for the parties and having perused the record, it is evident that the trial court has convicted the appellant and other one co-convict Swetory for committing the offence under Section 412 of the IPC and they were directed to undergo rigorous imprisonment of ten years with a fine of Rs. 5,000/- with further stipulation of default clause.

6. Though, learned counsel for the appellant has categorically submitted before this Court that the appellant has already been released from the prison after serving whole of the sentence as is evident from the report submitted by the Superintendent of District Jail, Hardoi of date 30.11.2024, it would be obligatory for this Court to assess as to whether the trial court has committed any illegality in appreciation of evidence or recording of finding of conviction as even after the release of the appellant from prison after serving out the whole of the sentence imposed by the trial court, he might have the stigma of being convicted for the offence for which he can very well maintain an contest an appeal even after serving out whole of the sentence so imposed by the trial court.

7. Learned counsel for the appellant, as has stated earlier, is under directions not to contest the Appeal. However, this Court in order to satisfy its judicial conscience has gone through the judgement of the trial court and has perused the finding recorded by it. The perusal of the judgement of the trial court in the background of the record available before this Court would reveal that the incident is shown to have occurred in the night of 26th April, 1996 wherein it is alleged that about 9-10 persons who were not known to the informant and witnesses, have forcibly entered into their house and have committed loot / dacoity and the jewellery was looted along with other valuable articles including Rs. 40,000/- in cash. The perusal of the First Information Report so lodged by the informant would reveal that he has categorically stated therein that he will identify the assailants.

8. During the course of investigation the accused persons were arrested and certain incriminating articles including jewellery which was looted from the house of the informant is shown to have been recovered from them. The accused persons as well as the jewellery and the other incriminating articles is shown to have been identified by the informant and the other prosecution witnesses. The Investigating Officer finding sufficient evidence agaisnt the accused persons, submitted charge sheet.

9. After framing of the charges by the trial court the prosecution has presented P.W.1- Shobh P.W.2- Bhaiyalal, P.W.3- S.I. Swamidayal Sharma, P.W.4- Azam Ali Khan, P.W.5- Constable Gauri Shankar Yaav, P.W.6- S.I. T.R. Singh, P.W.7- Dr. C.K. Gupta an along with the aforesaid oral evidence the prosecution has also relied on the documentary evidence e.g. Chick FIR, written application on the basis of which the FIR was lodged, medical injury report of the injured, statement of the witnesses and charge sheet.

10. P.W.1- Shobh who is the informant of this case and is also an injured witness has corroborated the story of the prosecution as alleged in the First Information Report. He has stated to have seen the assailants, the two accused persons against whom the charge sheet has been submitted has been identified by him and it is shown that these accused persons were arrested in his presence and incriminating articles including jewellery has also been recovered from their possession, in his (informants) presence.

11. P.W.2- Bhaiyalal is another witness, who has also corroborated the story of the prosecution pertaining to the commission of the offences by the accused persons. He has not only identified the two accused persons but also the jewellery which according to him was purchased in his presence from a jeweller whose shop was situated at Shahabad. There are other witnesses who have corroborated the allegations of the prosecution story.

12. The obligation of the prosecution before the trial court was to prove its case beyond reasonable doubt having regard to the evidence of two eye witnesses, namely, P.W.1- Shobh and P.W.2- Bhaiyalal in the considered opinion of this Court the factum of entering into the house of the informant and committing dacoity appears to have been proved by these two witnesses. These two witnesses have also identified not only the accused persons but also the jewellery which is shown to have been recovered from the two accused persons arrested by the police. There are certain minor contradictions emerging in the testimony of these two witnesses of the fact, however, the witnesses of a crime are not required to give a parrot like statement and certain discrepancies, embellishments which are not effecting the root of the prosecution story are not significant and the only requirement is that if the evidence of the prosecution witnesses is having a ring of truth around it there may not be any hurdle before the criminal court in accepting such evidence.

13. Having considered the evidence of these two factual witnesses this Court is not having any doubt that the trial court has not committed any illegality in accepting the testimony of these two witnesses.

14. It is to be recalled that substantive evidence with regard to the identification of accused persons, is the evidence of a witness recorded before the trial court and even if any test identification parade was held during the course of investigation, which was not held in this case, may not be a substantive evidence so far as the identification of an accused is concerned. The two witnesses of fact, namely, P.W.1- Shobh and P.W.2- Bhaiyalal have identified these two accused persons while they were standing in the witness box. Thus in the considered opinion of this Court there appears to be no ambiguity so far as the identification of these accused persons is concerned.

15. Thus, keeping in view all the facts and circumstances of the case and evidence tendered before the trial court, I do not have any doubt that the trial court has not committed any illegality in convicting the appellant for committing the offence under Section 412 of the Cr.P.C. and keeping in view the gravity of the offence adequate sentence has been inflicted upon them.

16. Thus, the appeal preferred by the appellant- Vijai Prakash appears to be without any substance/ force and the same is hereby dismissed.

17. Since the appellant has already been released from prison after serving whole of the sentence so imposed by the trial court which is also evident from the report submitted by Superintendent of District Jail, Hardoi of date 30.11.2024, he need not to surrender any where and would be at liberty unless wanted in any other case.

18. A copy of this order be sent to the trial court for information along with the trial court record, if the same is not required for disposal of any other appeal, which might have been filed by the co-convict- Swetory.

19. The observations made herein before are only for the purpose of disposing of this appeal and the same shall not cast any shadow on the fate of the appeal which might have been preferred by co-convict- Swetory.

Order Date :- 15.1.2025

Muk