Harcharan And Others vs State Of U.P.
2025 Latest Caselaw 12543 ALL

Allahabad High Court

Harcharan And Others vs State Of U.P. on 15 November, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:203218
 

 
  
 
Reserved on 11.9.2025 
 
Delivered on 15.11.2025
 
 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL APPEAL No. - 1759 of 1986   
 
   Harcharan And Others    
 
  .....Appellant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Jahar Singh (Kashyap)   
 
  
 
Counsel for Respondent(s)   
 
:   
 
A.G.A.   
 
     
 
 Court No. - 87
 
   
 
 HON'BLE ANIL KUMAR-X, J.     

1. Heard learned counsel for appellant and the learned AGA for State.

2. As per office report dated 3.9.2025, the appellant no.1-Har Charan and appellant no. Allah Bux is reported to be dead. As such, the appeal filed on behalf of the appellant nos. and 1 and 2 are declared abated.

3. This criminal appeal has been preferred against the judgment and order dated 11.06.1986 passed by the learned Additional District and Sessions Judge, Mainpuri in Sessions Trial No. 17 of 1986, whereby the appellant has been convicted under Section 148 IPC and sentenced to six months' rigorous imprisonment, under Section 307/149 IPC and sentenced to one year's rigorous imprisonment, and under Section 25 of the Arms Act and sentenced to six months' rigorous imprisonment.

Factual Matrix of Case

4. A prosecution story emerging from the FIR is that on August 26, 1985, at around 9:15 pm, informant SO Bal Govind, along with Constables Rakshpal, Dharm Narayan, Brij Mohan, Satya Deo, and Veerpal, left the police station to patrol the bridge of the Sirsa River near the village of Lallaipur. They had received a prior tip that certain criminal elements frequently arrived at that route from Firozabad. Upon reaching the spot at 10:30 pm, they became alert and took their positions in accordance with the earlier tip. Around 11:20 pm, they noticed five to six individuals coming from Firozabad. When they approached them, the informant shone his torchlight on them and ordered them to stop. However, the individuals immediately opened fire at them with the intention of killing. In self-defence, the informant and his colleagues also opened fire. A panic ensued among the miscreants, leading to the apprehension of three of them.

5. The remaining individuals fled the scene. They were all frisked and questioned about their whereabouts. One of them, Harcharan, son of Sumer Kachi, residing at P.S. Khairagarh, District Manipuri, was found in possession of a country-made SBBL gun with a live cartridge. Five live cartridges of 12-bore calibre were also found in his left pocket. Another miscreant, identified as Jawahar Lal, son of Banshidhar, residing at P.S. Khairagarh, District Mainpuri, was found in possession of a country-made pistol and four live cartridges of 12-bore calibre in his pocket. The last individual, Allah Baksh, son of Roshan Musalman, residing at Swaywari, P.S. Khairagarh, District Mainpuri, was found in possession of two live cartridges and a country-made gun. Two empty cartridges fired by the accused were also collected from the spot. All the recovered weapons and cartridges were immediately sealed, and a recovery memo was written on the direction of the informant by Constable Veerpal Sharma. Unfortunately, the spot witness at the time was unavailable, so the recovery memo was read before the available police personnel, and their signatures as witnesses were taken on the memo. The conduct of the accused amounted to offences under sections 147, 148, 149, 307, and 25/27 of the Indian Penal Code. A copy of the recovery memo was provided to the accused, but they tore it and threw it away.

6. On August 27, 1985, P.W.-1 SHO Bal Govind submitted written information (Ex Ka-1) at police station , Khairgarh District, Mainpuri. Subsequently, an FIR (Ex Ka-10) was registered as Case Crime Number 126/85 under Sections 147, 148, 149, 307 IPC 129. Apart from that FIRs in Case Crime Numbers 127/85,128/85 and 129/85 were also registered for offence under Section 25/27 Arms Act. P.W.-5 Constable Mahendra Pal Singh prepared the FIR (Ex Ka-10) and entered its details in the General Diary (Ex Ka-11). All the accused, along with the seized arms and ammunition, were arrested and brought to the police station.The investigation was entrusted to P.W.-4 S.I. Sonpal. He recorded the statements of the informant and other witnesses, prepared a spot map (Ex Ka-2), and obtained prosecution sanction from the District Magistrate to initiate prosecution against the accused who were found in possession of illegal firearms and ammunition.

7. Sonpal presented the prosecution sanction (Ex Ka-3, Ex Ka-4, and Ex Ka-5) to the court. After the investigation, he submitted charge sheets (Ex Ka-6) against Harcharan, Allah Bux, and Jawahar Lal in the case numbered 126/85 under Sections 147, 148, and 149 of the IPC. Additionally, he submitted charge sheets (Ex Ka-7, Ex Ka-8, and Ex Ka-9) in the cases numbered 127/85, 128/85, and 129/85 under Section 25 of the Arms Act.

8. On the basis of evidence collected by the Investigating Officer, charges under Sections 148 and 307/149 of the IPC were framed against the accused persons. Each of them were also separately charged under Section 25 of the Arms Act. The prosecution examined five witnesses to establish the charges.P.W.-1, SHO Bal Govind, reiterated the version stated in the FIR. He deposed that on 26-08-1985, at about 9:15 p.m., he, along with five constables, proceeded from the police station toward the Sirsa River bridge based on an intelligence tip that certain miscreants frequently passed along the road coming from the direction of Firozabad. At around 10:30 p.m., they spotted five to six persons passing the same route. When stopped, the suspects opened fire. However, after a brief encounter, three of them were apprehended, while the remaining managed to escape. The three arrested individuals were found in possession of illegal firearms and ammunition.

9. P.W.-2, Constable Satya Deo, and P.W.-3, Constable Rakshpal, corroborated the testimony of P.W.-1, SHO Bal Govind, in their depositions. P.W.-4, S.I. Sonpal, who conducted the investigation, proved the site plan (Exhibit Ka-10) and the charge sheets filed in Case Crime No. 126/85 under Sections 147, 148, 149, and 307 IPC, as well as in Case Crime Nos. 127/85, 128/85, and 129/85 under Section 25 of the Arms Act.

10. After the prosecution evidence was concluded, the statements of the accused persons were recorded under Section 313 CrPC.

11. The defence examined one witness, D.W.-1 Rashid Khan, produced on behalf of accused Allah Bux. Rashid Khan stated that Allah Bux is his maternal uncle. He further deposed that his parents had passed away in his childhood, and since then, he had been residing with his maternal uncle. According to him, Allah Bux was arrested from his home early in the morning. When he requested the police personnel to release his uncle, they assured him that Allah Bux would be released soon. However, upon visiting the police station the next day, the police refused to release him. Subsequently, Rashid Khan sent telegrams to the Superintendent of Police (S.P.) and the District Magistrate (D.M.) of Mainpuri, complaining of the illegal arrest. The receipts of the telegrams sent to the D.M. and S.P., both dated 26-08-1985, were produced and marked as Exhibits Kha-3 and Kha-4.

12. The Learned Trial Court found the depositions of the prosecution witnesses credible and reliable, noting that only minor and natural omissions surfaced during cross-examination. These omissions were considered trivial and immaterial. The Court also examined the arguments advanced by the defence counsel. One such argument questioned the credibility of the alleged incident and subsequent recoveries in absence of independent witnesses. This contention was rejected on the ground that the place of occurrence was approximately half a kilometre away from the nearest village Lallaipur, and that the incident took place at night, making the presence of independent witnesses unlikely in such a desolate area. The defence further cast doubt on the prosecution's case by pointing out that the accused were allegedly apprehended and tied with Gamcha. The Court dismissed this as a mere omission on the part of the witnesses. The recovery of arms and ammunition from the accused was held to be duly proved, as the recovered articles were produced in evidence, and the prosecution had obtained the necessary sanction in accordance with law. The absence of the District Magistrate's seal on the sanction order was deemed immaterial.

Submissions by Appellants

13. Learned counsel for the appellant contended that the Trial Court overlooked significant omissions and contradictions in the deposition of prosecution witnesses. It failed to appreciate that the departure of the patrolling team from the police station appears highly doubtful, as the prosecution did not produce the relevant entry from the General Diary, despite the claim made by P.W.-1 Bal Govind. Both witnesses, P.W.-1 Bal Govind and P.W.-2 Constable Satya Deo, admitted that before arriving at the place of occurrence, they had visited the village Lallaipur and spent sometime there. In these circumstances, they had an opportunity to bring along independent witnesses to the place of occurrence. However, they did not do so and falsely stated that no independent witness was available at the time of arrest and recovery. Furthermore, they failed to conduct body searches of each other before allegedly frisking the appellants and making the purported recoveries.

14. It was further submitted that the deposition of D.W.-1 Rashid Khan, which was crucial in establishing that one of the accused, Allah Bux, was arrested from his residence, was completely disregarded by the Trial Court. The Court failed to discuss even a single aspect of his testimony, despite the fact that he had produced the telegram sent to the District Magistrate and the Superintendent of Police, Mainpuri, on the same day, alleging that Allah Bux had been arrested in the morning of 26-08-1985. This documentary evidence is sufficient to demonstrate that the entire operation conducted by the police team was premeditated, aimed at making unlawful arrests of the appellants and fabricating an ante-dated FIR to justify their illegal actions. Consequently, the judgment rendered by the Learned Trial Court is not sustainable and must be set aside.

Submissions by Learned AGA

15. Learned AGA submitted that the arguments put forward by the appellants are of no consequence. The arrest of the appellants by the patrolling party, based on prior information, was not preceded by any authentic intelligence. It was a chance arrest made during night patrolling duty. Expecting independent witnesses in such circumstances is uncalled for. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials if such evidence is otherwise reliable and trustworthy. It is imperative for the appellants to show some concrete facts to raise doubt in the testimony of the witnesses before claiming that they were arrested without any reason. However, the appellants have failed to elicit any such facts from their testimony. It is not the case of the appellants that the witnesses were inimical towards them or bore any grudge against them. The witnesses in this case are police personnel having no ill will towards the appellants. Hence, no inference can be drawn that they had any motive for falsely prosecuting the appellants. The appellants have also failed to show any material discrepancy in the testimony of the prosecution witnesses. Certain lapses on the part of the Investigating Officer and minor contradictions in the testimony of witnesses are not sufficient to discard their evidence.

Conclusion

16. Heard Learned Counsels and perused the Trial Court records.

17. It is trite that evidence has to be read as whole before it can either be relied or discarded. Prosecution story begins from the point where P.W.-1 Bal Govind claims that he received intelligence tip from an informer that certain miscreants used to pass from road coming from Firozabad side towards Sirsa Bridge. During cross examination, this witness was asked whether informer had disclosed to him the details and description of alleged miscreants. He has stated that such particulars were not given by informer. Similarly he stated that he made entry in G.D about his departure from police station. P.W.-1 Bal Govind and P.W.-2 Satya Deo stated that they departed from police station for patrolling on foot. P.W-1 Bal Govind stated that the distance between the police station and place of occurrence is approximately one to one and a half kilometres. On other hand, other witness P.W.-2 Satya Deo stated that said distance is about four kilometres. Both stated in their cross examination that said distance was covered by them on foot. Witnesses stated that occurrence took place in dark night and accused were identified after torch light was flashed on their faces by P.W.-1 Bal Govind . Further they have told fire was opened by accused in reaction to the flashing of torch light. Said firing was retaliated by patrolling team and they too fired upon accused persons. Panicked by the response, accused immediately started to flee but three of them were arrested on spot and they were handcuffed by Ghamcha.

18. P.W.-1 Bal Govind and P.W.-2 Satya Deo stated that although they had not brought handcuffs with them, they used a gamcha to tie the accused. Both witnesses mentioned that they frisked each other before searching the accused, but admitted they did not remember when exactly they conducted the frisking. P.W.-1 Bal Govind testified that the accused were apprehended while attempting to escape, whereas P.W.-2 Satya Deo stated that none of the accused tried to flee after firing at them. The recovery memo, signed by all witnesses, mentions that copies were provided to the accused, but they tore it after receiving it. Both witnesses also testified that P.W.-1 Bal Govind was carrying a torch and that the recovery memo was prepared using its light. However, the torch was not sealed or produced in evidence by the prosecution. When P.W.-1 Bal Govind was asked whether he could identify the accused who fired at them, he replied that he could not identify them.

19. On a critical examination of the prosecution case, certain material contradictions and omissions emerge which cast serious doubt on the veracity of the alleged incident and the subsequent arrests. The informant, P.W.-1 Bal Govind, admitted that the intelligence received was vague and did not specify any description of the accused persons. Moreover, no independent entry in the General Diary corroborates the claimed tip-off or the patrolling schedule. There exist glaring contradictions in the testimony of the police witnesses regarding the distance covered on foot and the time taken, thereby shaking the reliability of their narrative.

20. Identification of the appellants in the dark, solely by the torchlight held by the informant, remains unsubstantiated as the torch itself was not produced in evidence. The manner of arrest, using a gamcha instead of handcuffs, and incomplete frisking procedures further strain credulity.

21. The defence witness, D.W.-1 Rashid Khan, presented credible evidence suggesting the arrest of accused Allah Bux from his home early on the day in question, supported by telegrams sent to senior police authorities. The trial Court's failure to consider this uncontroverted evidence is a serious omission.

22. In the absence of any independent witnesses and with the presence of multiple inconsistencies and procedural lacunae, the prosecution has not succeeded in establishing its case beyond reasonable doubt.

23. Accordingly, the benefit of doubt is extended to the accused Jawaharlal, who is acquitted of all charges framed against him under Sections 148, 307/149 IPC, and Section 25 of the Arms Act. The appellant shall be set at liberty forthwith if not required in any other case.

24. In view of the foregoing findings, it is held that the prosecution has failed to prove the charges against the appellant Jawaharlal beyond reasonable doubt. The impugned judgment of conviction and sentence cannot be sustained.

25. The appeal is accordingly allowed, and the appellant Jawaharlal is acquitted of all charges, under Sections 148, 307/149 of the IPC and Section 25 of the Arms Act. His bail bonds shall stand discharged, and if he is in custody, he be released forthwith, unless wanted in any other case. He may be released forthwith. However, appellant shall furnish bail bond in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two month from today.

26. The Trial Court's record be remitted back along with copy of this judgment.

27. Compliance report be submitted to this Court at the earliest. Office is directed to keep the compliance report on record.

(Anil Kumar-X,J.)

November 15, 2025

Ujjawal