Allahabad High Court
Saind Pal Singh And Another vs State on 3 September, 2025
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:154952
REPORTABLE
Reserved on 31.7.2025
Delivered on 3.9.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL NO.-2388 of 1982
Saind Pal Singh And Another ...Appellants
Versus
State ...Respondent
JUDGMENT
HONBLE SANJAY KUMAR PACHORI, J.
1. Present Criminal Appeal has been preferred under Section 374 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) against the judgment and order dated 28.8.1982 passed by Special Judge (D.A.A.)/Additional Sessions Judge, Lalitpur in Special Case No. 31 of 1982, whereby trial court convicted the appellants under Section 393, I.P.C. read with Section 12 of U.P. Dacoity Affected Area Ordinance, 1982 and sentenced them 3 years rigorous imprisonment each, however, trial court acquitted the appellants under Section 25(b)(4) of Arms Act.
2. Brief facts of the case are that the first information report dated 29.12.1981 has been registered against the appellants and unknown persons stating that when the first informant was on the way of village Bairwara at 9.00 p.m. near the Mission hospital, three assailants came and threatened him with dire consequences after showing the knives and attempted to robbery with him. On his crying 4-5 police personnels came and arrested two persons out of three assailants. The appellants have been arrested by the police at the place of incident.
3. The F.I.R. (Ex- Ka-3) was lodged at 22.30 p.m. on 29.12.1981 (which was registered within about 1-1/2 hour of the incident) against the appellants and the police party prior to lodging of F.I.R. prepared two recovery memos as Ex- Ka-1 and Ex- Ka-2 of illegal knives from the possession of appellants. After completing the investigation, charge sheets have been submitted against the appellants under Section 393, I.P.C. and Section 25/4 of Arms Act, separately as Ex- Ka-7, Ex- Ka-8 and Ex- Ka-9.
4. Being the Special Case, which is triable by the Special Judge of D.A.A., charge has been framed on 29.5.1982 under Sections 393, I.P.C. read with Section 12 of D.A.A. and Section 25(b)(4) of Arms Act against the appellants and they denied the charges.
5. The Prosecution has examined as many as four witnesses namely, PW-1, S.I. Surjan Singh, (who prepared recovery memo, Ex- Ka-1 and Ex- Ka-2), PW-2, H.C. 3, Naresh Singh (Scribe, who proved chik F.I.R. and G.D. Rapat as Ex- Ka-3 and Ex- Ka-4) PW-3, S.I. P.N. Tripathi (Investigating Officer) and PW-4 Munna Lal (first informant).
6. After examination of prosecution witnesses, trial court recorded the statements of the present appellants under Section 313, Cr.P.C. wherein they stated that they have been implicated due to enmity with the local police and they stated that they have been taken into custody from Station Lalitpur. However, the appellants have not produced any evidence in defence.
7. Learned counsel for the appellants argued before the trial court that they have been implicated by the local police due to enmity and the prosecution has totally failed to prove the case beyond reasonable doubt against the appellants.
8. The trial court observed that the first informant has no enmity with the appellant Munna Lal, so as to why he has been implicated in the present case, in this regard no question has been asked in his cross examination. The police reached at the place of incident on crying of the first informant and the police caught the appellants after chasing 40-45 paces. The prosecution successfully proved the case beyond reasonable doubt against the appellants on the basis of evidence of PW-4 Munna Lal and proved the charges under Section 393, I.P.C. read with Section 12 of U.P. Dacoity Affected Area Ordinance, 1982 and convicted and sentenced the appellants under Section 393, I.P.C. read with Section 12 of U.P. Dacoity Affected Area Ordinance, 1982. However, the trial court further observed that the prosecution has failed to prove the charge under Section 25(b)(4) of Arms Act without proving the notification. Hence, the appellants preferred the present appeal.
9. Learned counsel for the appellants submits before this Court that the first information report of the present case was lodged after preparing the recovery and arrest memo on the spot by which the police arrested the appellants. It is further submitted that the prosecution has not proved the recovery and arresting memo, as per law provided under Section 100(4), Cr.P.C. by an independent and respectable inhabitants of the locality. It is further submitted that the prosecution has failed to explain the delay in lodging of the F.I.R. after about 1-1/2 hour of the incident whereas the police party reached immediately. It is further submitted that the prosecution has failed to prove the charge against the appellants under Section 25(b)(4) of the Arms Act, due to this reason there is no evidence to prove the fact that the appellants attempted to robbery with the first informant on the basis of knives after causing hurt. Therefore, the present appeal is liable to be allowed.
10. Learned A.G.A. vehemently refuted the arguments of the appellants 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 appellants. Hence, the criminal appeal deserves no merit and is liable to be dismissed.
11. Heard Shri Nanhe Lal Tripathi, Shri Anshul Tiwari, Sri Sudhanshu Chaturvedi, learned counsels for the appellants and Sri Manoj Kumar Singh, learned A.G.A. for the State.
12. In the present case, recovery and arresting memo have been prepared prior to lodging of F.I.R, which had been proved by PW-1, S.I. Surjan Singh as Ex-Ka-1 and Ex-Ka-2. The prosecution has not examined any independent/public witness of the locality with regard to recovery made as Ex-Ka-1 and Ex-Ka-2.
13. PW-1, S.I. Surjan Singh stated in his cross-examination that on screaming of PW-4 Munna Lal, the police party reached the spot where the appellants committed offence of attempt to robbery. On reaching of police party, they fled away from the spot but the appellants have been arrested at 9.00 p.m. after chasing 40-50 paces.
14. PW-4 Munna Lal stated in his chief examination that at 9.00 p.m., three assailants came and on the basis of showing knives, they attempted to commit robbery with him and on his crying, police party reached the spot and after chasing two assailants (present appellants) had been caught hold by the police. As per statement of the witness, he also proved the recovery and arresting memo of the appellants.
15. Except the two witnesses, there is no other witness of fact. It is cardinal principle that for administration of criminal justice, the prosecution has to prove the case against the appellants beyond reasonable doubt.
16. After having gone through the entire material on record, except the statements of PW-1, S.I. Surjan Singh and PW-4 Munna Lal, there is no other evidence to prove the prosecution case and following facts clearly emerged thereof:-
(a) PW-4 Munna Lal, first informant lodged the F.I.R. after about 1-1/2 hours of the arresting of the appellants by the police personnel. At 9.00 p.m., PW-1, S.I. Surjan Singh along with police party arrested the appellants after chasing them and arresting and recovery memo have been prepared without following the mandatory provision of Section 100(4) Cr.P.C. and no attempt or effort was made for independent witness.
(b) There is a considerable delay in lodging of the F.I.R. by PW-4 when the appellants were arrested at 9.00 p.m. and police reached the place of incident and arrested them immediately. There is no explanation of causing delay in lodging the F.I.R.
(c) The trial court acquitted the appellants under Section 25(b)(4) of Arms Act and prosecution has also failed to prove material genesis of the prosecution case, as alleged by the prosecution that appellants attempted to commit offence of robbery at the instance of knives.
17. It is well-settled position of law that delay in lodging the FIR does not make prosecution case improbable when such delay is properly explained, but a deliberate delay in lodging the FIR may prove fatal. In cases where there is delay in lodging the FIR, the court has to look for a plausible explanation for such delay. [Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393 (SCC p. 397, para 12), Meharaj Singh & Ors. v. State of U.P. & Ors, (1994) 5 SCC 188 (SCC p. 195-96, para 12), Satpal Singh v. State of Haryana, (2010) 8 SCC 714 (SCC p. 397, para 12)]
18. Section 100(4) of CrPC reads 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.
19. 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.
20. 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 witness was present. Paragraph No. 88 of the above judgment is quoted as under:-
15. In the case of Sahib Singh v. State of Punjab (1996) 11 SCC 685, while interpreting Section 100(4) Cr.P.C., the Supreme Court observed that the absence of independent witness during the search would affect the weight of the evidence of police officer, though not its admissibility.
21. 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 ones 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.
22. The appellants have been arrested prior to lodging of the F.I.R. on the basis of recovery and arresting memo and the F.I.R. was lodged after about 1-1/2 hour of arresting of the appellants. The manner in which, according to the prosecution, the incident unfolded, does not inspire confidence inasmuch as theory of attempting robbery by knives is not proved by the prosecution. All this shrouds the prosecution in suspicion.
23. 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. The substantial portion of the judgment of the trial court depends upon the fact that the first informant had no enmity with the appellants to implicate in the case.
24. 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 393, I.P.C. read with Section 12 of U.P. Dacoity Affected Area Ordinance, 1982 against the appellants beyond reasonable doubt as the evidence on record does not bring home the guilt of the appellants beyond the pale of doubt, the appellants are entitled to the benefit of doubt. Consequently, the appellants are entitled to be acquitted of the charges for which they were tried.
25. As a result, present criminal appeal is allowed. The impugned judgment and order of conviction as well as sentence recorded by the trial court is set aside. The appellants Saind Pal Singh and Prem Babu are acquitted of the charges for which they have been tried. The appellants Saind Pal Singh and Prem Babu are on bail, therefore, their personal bonds and sureties are, hereby, discharged. The appellants will fulfil the requirement of Section 437-A, Cr.P.C. to the satisfaction of the trial court at the earliest.
26. The trial court record be returned forthwith with a certified copy of this judgment for compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.
Order Date :- 3.9.2025
T. Sinha
(Sanjay Kumar Pachori, J.)
