Uttarakhand High Court
Dharmendra Kumar @ Sameer Malik vs State Of Uttarakhand on 15 October, 2025
2025:UHC:9230
Reserved on 30.08.2025
Delivered on 15.10.2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 86 of 2021
Dharmendra Kumar @ Sameer Malik ......Appellant
Vs.
State of Uttarakhand .....Respondent
With
Criminal Appeal No.75 of 2021
Manmat Rai & Another ......Appellants
Vs.
State of Uttarakhand .....Respondent
With
Criminal Appeal No. 73 of 2021
Sanjeev Majumdar ......Appellant
Vs.
State of Uttarakhand .....Respondent
With
Criminal Appeal No. 74 of 2021
Manmat Rai ......Appellant
Vs.
State of Uttarakhand .....Respondent
1
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
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Presence:-
Mr. S.K. Mandal, learned counsel for the Appellants.
Mr. S.C. Dumka, learned Standing Counsel for the State.
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Hon'ble Ashish Naithani, J.
The Present four connected appeals arise from the
judgments and orders dated 24.02.2021 passed by the
learned Additional Sessions Judge, Khatima, District Udham
Singh Nagar in Sessions Trial Nos. 01, 02, 03 and 04 of
2015 in Criminal Appeal No.75 of 2021, Criminal Appeal
No.86 of 2021, Criminal Appeal No.74 of 2021 and Criminal
Appeal No.73 of 2021 respectively, originating from a
common chain of First Information Reports, being FIR Nos.
170, 170, 173 and 174 of 2014 in Criminal Appeal No.75 of
2021, Criminal Appeal No.86 of 2021, Criminal Appeal
No.74 of 2021 and Criminal Appeal No.73 of 2021
respectively, all registered at Police Station Khatima, District
Udham Singh Nagar. The Sessions Trials stemmed from the
same transaction and investigation, relating to an alleged
incident of dacoity reported on 13.09.2014 near the Khatima
-Sitarganj road.
2
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
2. The case of the prosecution, in brief, is that on the
evening of 13.09.2014, one Ramesh Kumar, while returning
home, was allegedly waylaid by four to five unknown
persons, who assaulted him and forcibly took away cash, a
mobile phone, and certain other personal belongings. Based
on his complaint, F.I.R. No. 170 of 2014 was registered at
the concerned police station under Sections 395 and 397 of
the Indian Penal Code. During the course of investigation,
the police claimed to have arrested certain suspects and
effected recoveries of stolen articles and weapons in
connection with the present and other connected
occurrences reported on the same night.
3. Following the investigation, charge-sheets were
submitted against four accused persons, namely
Dharmendra Kumar @ Sameer Malik, Manmat Rai, Sanjeev
Majumdar, and Pradeep Kumar @ Kalia, for offences under
Sections 395 and 397 IPC. A separate charge-sheet was filed
against appellant Sanjeev Majumdar under Section 4/25 of
the Arms Act. The cases were tried separately as Sessions
Trial Nos. 01, 02, and 04 of 2015 before the learned
Additional Sessions Judge, Khatima.
3
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
4. In Sessions Trial No. 01 of 2015 (State v.
Dharmendra Kumar & Ors.), the trial court convicted
appellants Dharmendra Kumar @ Sameer Malik and
Manmat Rai under Sections 395 and 397 IPC and sentenced
each of them to rigorous imprisonment for seven years
under Section 395 IPC with fine of `10,000/- and further
rigorous imprisonment for ten years under Section 397 IPC
with fine of `15,000/-, with default stipulations. Appellant
Sanjeev Majumdar was acquitted of the charge under
Section 412 IPC in the same trial.
5. In Sessions Trial No. 02 of 2015 (State v. Pradeep
Kumar @ Kalia), the appellant was convicted under Sections
395 and 397 IPC and sentenced to the same term and fine
as awarded in the connected trial.
6. In Sessions Trial No. 04 of 2015 (State v. Sanjeev
Majumdar), the appellant was convicted under Section 4/25
of the Arms Act and sentenced to rigorous imprisonment for
one year with a fine of `1,000/- and default stipulation.
7. All the above Sessions Trials were founded on the
same set of witnesses, investigation, and recovery memos,
4
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
and were tried by the same presiding officer. As such, the
present appeals have been heard together and are being
disposed of by this common judgment.
8. Learned counsel for the Appellants submitted that
the case suffers from serious infirmities and inconsistencies,
both factual and procedural. It is urged that the
identification of the Appellants was made in a Test
Identification Parade conducted after an unexplained delay
of more than thirty days from their arrest, rendering the
process wholly unreliable. The informant, it is pointed out,
had no prior acquaintance with any of the Appellants, and
there is no evidence of any distinctive feature enabling their
identification after such a delay.
9. It is further argued that there was no independent
public witness either to the alleged occurrence or to the
recoveries said to have been made from the Appellants. The
entire case rests on police witnesses whose testimony is
inconsistent on material particulars. It is contended that the
recoveries were planted and do not inspire confidence, as
there is no corroboration from the alleged looted articles
mentioned in the FIR.
5
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
10. Learned counsel for the Appellants emphasised
that the delay in forwarding the FIR to the Magistrate
violates Section 157 of the Code of Criminal Procedure and
seriously affects the credibility of the prosecution's version.
It is also urged that the place and manner of occurrence
were never established through reliable evidence, as no
bloodstains, footprints, or other physical corroboration were
recovered from the alleged spot of the incident.
11. With regard to the applicability of Section 397 IPC,
it is submitted that there is no evidence that any of the
Appellants used any deadly weapon during the alleged
occurrence. The prosecution witnesses have not attributed
any specific act of assault or threat with a weapon to any
particular accused. The conviction under Section 397 IPC,
therefore, is asserted to be unsustainable.
12. Learned counsel for the Appellants further argued
that the essential ingredient of Section 395 IPC, i.e., 'the
participation of five or more persons', has not been
established, since only four accused persons were charge-
sheeted and tried. No evidence has been presented to show
the presence of a fifth person. It is submitted that in the
6
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
absence of this foundational requirement, the conviction
under Section 395 IPC is legally untenable.
13. As regards appellant Sanjeev Majumdar, it is
argued that his acquittal under Section 412 IPC in the main
trial demolishes the prosecution version of his involvement
in the alleged dacoity. His separate conviction under the
Arms Act is stated to be based on an unreliable and
uncorroborated recovery, unsupported by independent
witnesses.
14. The recovery memo does not bear the signature of
any public person, nor was any sanction or permission
obtained from the District Magistrate as required under
Section 39 of the Arms Act.
15. Learned counsel for the Appellants further
submitted that multiple First Information Reports, bearing
Nos. 170, 172, and 174 of 2014, were all registered at the
same police station on the same night in respect of one and
the same alleged occurrence. It was urged that the
registration of separate FIRs and the filing of distinct charge-
sheets for what was essentially a single incident were
7
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
intended to create a semblance of multiplicity of offences.
The investigation, according to the learned counsel, was
perfunctory and mechanical, reflecting an attempt to secure
a conviction by duplicating evidence across several
proceedings.
16. Per contra, learned Additional Government
Advocate Shri S.C. Dumka, appearing for the State,
submitted that the prosecution has established a coherent
and consistent case through ocular as well as documentary
evidence. It is urged that the identification of the Appellants
was duly carried out before the competent Magistrate in a
lawful Test Identification Parade. That minor delay in
conducting the TIP, in the absence of proof of prejudice,
cannot invalidate the identification. The learned AGA further
submitted that the informant and other material witnesses
identified the Appellants in Court, which constitutes
substantive evidence of identity, the TIP being only
corroborative.
17. It is further argued that non-association of public
witnesses, though desirable, is not fatal where recovery is
otherwise supported by credible official testimony. The
8
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
learned AGA maintained that the evidence on record, when
read as a whole, clearly establishes that the Appellants
participated in the dacoity and used deadly weapons to
commit the offence.
18. Learned Additional Government Advocate Shri S.
C. Dumka, for the State, lastly submitted that any delay in
forwarding the First Information Report to the Magistrate
does not, by itself, vitiate the investigation, the report having
been promptly lodged and the investigation commenced
without undue lapse. It was further urged that the trial
court has appreciated the ocular and documentary evidence
in its entirety, that the findings recorded are neither
perverse nor contrary to law, and that no ground for
appellate interference is made out.
19. Heard learned counsel for the Parties and perused
the records.
20. The findings of conviction appear to rest principally
on the alleged identification of the Appellants and the
recoveries said to have been effected at their instance. The
Test Identification Parade, however, was held after an
9
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
unexplained delay of more than one month from the date of
arrest, and there is no material to suggest that during this
intervening period the Appellants were kept out of the view
of witnesses. Where identification forms the sole or primary
link between the accused and the alleged occurrence, the
process must inspire confidence both in its conduct and its
timing. A delayed and uncorroborated identification weakens
its probative value and cannot safely be treated as a reliable
basis for conviction.
21. The record further reveals that no independent
witness was associated either at the time of the alleged
occurrence or during the purported recoveries. The seizure
memos bear only the signatures of police personnel who
were part of the investigating team. The articles said to have
been recovered, namely a chain, a mobile phone, and a
knife, are commonplace objects, none of which have been
conclusively identified as belonging to the informant or as
forming part of the alleged stolen property. In these
circumstances, the probative worth of the recoveries stands
substantially weakened and cannot, by itself, sustain the
findings of conviction.
10
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
22. The record further discloses that the forwarding of
the First Information Report to the Magistrate was delayed,
for which no satisfactory explanation is forthcoming. The
prompt transmission of the report is a procedural safeguard
designed to ensure the authenticity of the earliest account of
the occurrence. An unexplained delay in its forwarding
erodes the credibility of the initial version and casts doubt
upon the fairness and transparency of the investigation
process.
23. The most fundamental legal infirmity arises from
the conviction recorded under Section 395 IPC. For clarity,
the definition of "dacoity" contained in Section 391 of the
Indian Penal Code is reproduced below:
"391. Dacoity.--When five or more
persons conjointly commit or attempt to
commit a robbery, or where the whole
number of persons conjointly
committing or attempting to commit a
robbery, and persons present and aiding
such commission or attempt, amount to
five or more, every person so
committing, attempting or aiding, is said
to commit dacoity."
11
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
24. The statutory requirement is clear and mandatory:
at least five persons must conjointly commit or attempt to
commit a robbery for the act to constitute dacoity. In the
present set of cases, only four individuals were charge-
sheeted and tried. No evidence has been adduced to
establish the presence or participation of any fifth person.
Once this numerical condition is not satisfied, the very
foundation for applying Section 395 IPC ceases to exist. The
learned trial court, while convicting the Appellants under
this provision, overlooked this basic statutory mandate.
25. The record further indicates that no material was
placed before the trial court to establish that the Appellants
were acting in concert with any unidentified or absconding
associate. The statutory expression "five or more persons"
occurring in Section 391 of the Indian Penal Code
contemplates proof of collective participation founded on a
common intention, which cannot rest upon conjecture or
inference. The investigation does not reveal that any other
person was ever identified, apprehended, or even shown as
absconding. In these circumstances, even if the alleged act
of robbery were assumed to have taken place, the
12
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
ingredients necessary to constitute the offence of dacoity
remain unfulfilled, and the conviction of the Appellants
under Section 395 IPC cannot be legally sustained.
26. The cumulative deficiencies noted together create
serious doubt as to the correctness of the conclusions drawn
by the trial court. The record, when viewed in its entirety,
does not satisfy the standard of proof required to uphold a
conviction.
27. Upon a comprehensive appraisal of the material on
record and after hearing learned counsel for the parties, this
Court is of the considered opinion that the findings recorded
by the learned trial court are vitiated by both factual and
legal infirmities. The appreciation of evidence has been
mechanical, and the conclusions drawn lack support from
cogent reasoning or credible material. Accordingly, the
conviction and sentence of all the Appellants are
unsustainable in law and deserve to be set aside.
ORDER
For the reasons stated and findings recorded
hereinabove, all the connected Criminal Appeals, being
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
2025:UHC:9230
Criminal Appeal Nos. 86 of 2021, 74 of 2021, 75 of 2021,
and 73 of 2021 are hereby allowed.
The judgments and orders dated 24.02.2021,
passed by the learned Additional Sessions Judge, Khatima,
District Udham Singh Nagar, in Sessions Trial Nos. 01, 02,
03 and 04 of 2015, recording the conviction and sentence of
the Appellants under Sections 395 and 397 of the Indian
Penal Code and under Section 4/25 of the Arms Act, are set
aside.
(Ashish Naithani, J.)
15.10.2025
Akash
AKASH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef73518c1
48d140566ab1e26f9cbe61d, postalCode=263001,
st=Uttarakhand,
serialNumber=27096a1625377537a487dee49224c891823
fc6a0334628b21e516047ed4f22f7, cn=AKASH
Date: 2025.10.15 17:32:00 +05'30'
Criminal Appeal No. 86 of 2021 "Dharmendra Kumar @ Sameer Malik Vs State of
Uttarakhand" - Along with connected Criminal Appeal Nos. 75 of 2021, 73 of 2021
and 74 of 2021
Ashish Naithani J.
