Allahabad High Court
Aaram Khan vs State on 31 October, 2025
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
2025:AHC:195336
REPORTABLE
Reserved on 01.09.2025
Delivered on 31.10.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Aaram Khan Appellant
v/s
State of U.P. Respondnet
JUDGMENT
HONBLE SANJAY KUMAR PACHORI, J.
1. The Present Criminal Appeal has been preferred under Section 374 of Code of Criminal Procedure (hereinafter referred to Cr.P.C.) against the judgment and order dated 30.08.1986 passed by Ist Additional Sessions Judge, Rampur in Session Trial No. 157 of 1983, Session Trial No. 209 of 1983 and Session Trial No. 210 of 1983, whereby the trial court convicted the appellant Aaram Khan under Section 412 of IPC and sentenced to undergo 3 years and six month rigorous imprisonment and acquitted under Sections 395 read with Section 397 of IPC and Section 25 of Arms Act. However, co-accused Shahadat has also been acquitted for the offence punishable under Section 395 read with Section 397 of I.P.C. and Section 25 of Arms Act.
2. Brief facts giving rise to the present appeal are that the FIR dated 09.03.1983 (Ex. Ka-1) has been lodged with regard to incident dated 09.03.1983, which had taken place at 01.00 A.M. against the co-accused Shahadat Khan and 7 to 8 unknown dacoits under Sections 395, 397 of IPC alleging that at about 01.00 A.M. the appellant and 07-08 unknown dacoits caught hold the first informant Shyam Lal (P.W.-1) over the roof of his house and snatched his licensee gun .12 bore along with belt of cartridge and thereafter they committed offence of dacoity and made indiscriminate firing. After hearing the firing villagers came and the dacoits hide themselves behind the wall of house of Tularam and ablazed the garbage of maze. Thereafter dacoits entered into the house of Pyare Lal and Ghasi and dacoity has been committed in both the houses. Constable Madan Lal Sharma and Sheesh Ram Singh who reached at the spot, they sustained injuries of pellet, which had been fired by the dacoits over the police party near the river bank and police party caught hold Shahadat Khan on the spot and list of articles had been given by the first informant, which was looted by the dacoits. As per physical appearance of the dacoits and the language they used, they seem to be member of Muslim community.
3. During the investigation, Investigating Officer collected various articles and prepared sketch plan of the place of incident as place of recovery, memo of recovery of cartridge, Lantern, empty cartridge, licensee gun, torches and after recording pre summoning evidence of the witnesses, medical examination report of the injured persons submitted charge sheet against co-accused Shahadat Khan and appellant.
4. On committal, after considering the pre summoning evidence, charges had been framed against the appellant and co-accused Shahadat Khan under Section 395 IPC read with Section 397, 412 of IPC and Section 25 of Arms Act on 16.11.1983.
5. To substantiate the charges against the appellant and other co-accused Shahadat Khan prosecution examined as may as 24 witnesses namely; Shyam Lal (P.W.-1), Banke Lal (P.W.-2), Manohar (P.W.-3), Bhagwan Das (P.W.-4), Mohan Swaroop (P.W.-5), Chhatra Pal (P.W.-6), Raja Ram (P.W.-7), Mohan Dei (P.W.-8), Intkhab Hasan (P.W.-9), Madan Lal Sharma (P.W.-10), Dulichand Vats (P.W.-11), Bhanwar Singh (P.W.-12), B.K. Juaal (P.W.-13), Dorilal (P.W.-14), Padam Singh (P.W.-15), Chandra Singh (P.W.-16), Mahendrapal Singh (P.W.-17), Masi-ul Hasan Nakvi (P.W.-18), Janardan Bhatt (P.W.-19), Rajbir Singh (P.W.-20), Mahak Singh (P.W.-21), V.S. Rana (P.W.-22), M.C. Misra (P.W.-23) and Ramraj Singh (P.W.-24).
6. After examination of prosecution witnesses, trial court recorded the statements of the appellant under Section 313, Cr.P.C. wherein he stated that the prosecution has produced false evidence due to enmity. The appellant had not produced any documentary or oral evidence in their defence.
7. It is surprising fact that after having gone through the whole judgment of trial court nothing has been found with regard to hearing of appellant as well as Government Advocate.
8. Learned counsel for the appellant submits that the judgment and order dated 30.08.1986 has been passed without appreciating the evidence in right perspective. It is further submitted that offence of dacoity has not been proved against the appellant and he had been acquitted under Section 395 read with Section 397 of I.P.C., how the recovery of looted articles can be proved. There is no public or independent witness of the locality from where the looted articles were recovered at the instance of the present appellant. Hence, the impugned judgment and order is liable to be set-aside and the appeal is liable to be allowed. No identification parade was taken place to identify the present appellant.
9. Learned A.G.A. vehemently refuted the arguments of the appellant and supported the judgment and order passed by the trial court and submits that the prosecution has proved its case beyond reasonable doubt against the appellant. Hence, the criminal appeal deserves no merit and is liable to be dismissed.
10. Heard Shri Rupesh Srivastav, learned counsel for the appellant and Ms. Ladli Pandey, learned A.G.A. for the State and perused the material available on record.
11. As the trial court found the prosecution evidence untrustworthy, for the offence punishable under Sections 395, 397 of I.P.C. and Section 25 of Arms Act, therefore, the trial court acquitted the present appellant under Sections 395, 397 of I.P.C. and Section 25 of Arms Act. It is not necessary to re-visit or consider the prosecution evidence with regard to aforesaid offence.
12. The trial court after considering the evidence of PW-21 Inspector Mahak Singh observed that it was not necessary for the Investigating Officer to follow the provision of Section 100(4) of Cr.P.C., the search of the house of the appellant was not taken by the police. It was accused himself, who produced the alleged property from his house. The trial court further observed that the present appellant was arrested from near village Lakhimpur Canal Patri and from his possession one gun bearing no. 5052, belt of cartridges containing six live cartridges, blanket and one HMT wrist watch were recovered and on his pointing out at the time of his arrest recovery of one Shawl, one Dhoti Mardani and one ladies Saree were recovered. It is further observed that the testimony of Inspector Mahak Singh, further corroborated the entries of arrest of the appellant, the property recovered from the possession of the appellant belongs to PW-1 Shyam Lal, PW-5 Mohan Swaroop, PW-6 Chhatra Pal, PW-8 Mohan Devi, who identified the recovered articles from the possession of the appellant before S.D.M. on 13.06.1983, (after about 3 months of the arrest of the appellant).
13. Before considering the respective submissions of the parties, it is apposite to mention the position of law with regard to presence of independent/public witness of the locality to prove the recovery of articles by the police party.
14. Sub-Section 4 of Section 100 of Cr.P.C. provides as under:-
"100(4). Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
15. The Supreme Court in Ajmer Singh v. State of Haryana (2010) 3 SCC 746 observed that one can not forget that it may not be possible to find independent witness at all places at all times. The obligation to take public witness is not an absolute rule, if despite effort public witness could not be associated with the raid or arrest of the culprit, the arrest or the recovery made would not be necessarily vitiated.
16. The Apex Court in the case of Kalpnath Rai v. State (through CBI) (1997) 8 SCC 732, while interpreting Section 100(4) Cr.P.C. observed that there can be no legal proposition that evidence of police officer is unworthy of acceptance in case of absence of a witness during police raid. At the most, It would cast a duty on the court to adopt greater care while scrutinizing the evidence of the police officer. If the evidence of a police officer is found acceptable, then it would be the erroneous proposition that the court must reject the prosecution version, solely on the ground that no independent witness was examined. In Paragraph No. 88 of the above judgment Supreme court referred the law laid down by the Supreme court of para No. 11 in the case of Pradeep Narayan Madgaonkar, (1995) 4 SCC 255, which is quoted as under:-
"11.Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
17. In Yogesh Singh Vs. Mahabeer Singh & Ors., (2017) 11 SCC 195, the Supreme Court observed:-
"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302: (SCC pp. 313-14, paras 25-26)
"25. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
[See also Krishnan v. State, (2003) 7 SCC 56; Valson v. State of Kerala, (2008) 12 SCC 24 and Bhaskar Ramappa Madar and Ors. v. State of Karnataka, (2009) 11 SCC 690].
16.Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P., (1973) 2 SCC 808; State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; Chandrappa v. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain v. State of Assam and Anr., (2015) 11 SCC 242).
17.However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in the case of State of Punjab v. Jagir Singh, (1974) 3 SCC 277: (SCC pp. 285-86, para 23)
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."
18. Similarly, in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus: (SCC p. 799, para 6)
"6... The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community."
18. After having gone through the entire prosecution evidence, the following facts clearly emerged:
(a) The first information report has been lodged against the arrested co-accused Shahadat Khan and 7 and 8 unknown dacoits, who caught hold by the villagers at the spot, after about 7 hours of the incident without any explanation wherein the police reached the place of incident immediately;
(b) Appellant and co-accused Shahadat Khan (who arrested before lodging of the F.I.R.) has been acquitted for the offence punishable under Sections 395, 397 of I.P.C.;
(c) After 9 days of the incident, the present appellant was arrested on the way and recovery which was allegedly made did not prove by any public or independent witness of locality;
(d) Further recovery was also made from the house of the appellant on his instance, which had also not been proved by the prosecution by any public or independent witness of locality;
(e) There is no evidence with regard to fact that on what basis the name of the appellant surfaced in the present case.
(f) There is no evidence that the appellant having knowledge about recovered articles were property of dacoity.
(g) Where offence of dacoity had not been proved against the appellant or any other person, how the offence under Section 412 of I.P.C. was proved.
19. On the basis of the facts and circumstances discussed above, an inference can easily be drawn that the prosecution has not proved its case beyond reasonable doubt. The contrary view taken by the trial court is against the weight of evidence.
20. For all the reasons recorded and discussed above, I am of the considered view that the prosecution has failed to prove the charges for the offence punishable under Section 412 of I.P.C. against the appellant Aaram Khan beyond reasonable doubt as the evidence on record does not bring home the guilt of the appellant beyond the pale of doubt, the appellant is entitled to the benefit of doubt. Consequently, the appellant is entitled to be acquitted of the charge for which he was tried.
21. As a result, present criminal appeal is allowed. The impugned judgment and order of conviction dated 30.08.1986 as well as sentence recorded by the trial court is set aside. The appellant Aaram Khan, is acquitted of the charge under section 412 of I.P.C. for which he has been tried. The appellant is on bail, therefore, his personal bonds and sureties are, hereby, discharged. The appellant will fulfill the requirement of Section 437-A, Cr.P.C. to the satisfaction of the trial court at the earliest.
22. The trial court records be returned forthwith with a certified copy of this judgment for compliance.
Dated: 31.10.2025
Ishan
(Sanjay Kumar Pachori, J.)
