Dharmendra Kumar Sameer Malik v. State of Uttarakhand

Mr. S.K. Mandal, learned counsel for the Appellants. Mr. S.C. Dumka, learned Standing Counsel for the State. ------------------------------------------------------------------------- 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.

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 connection with the present and other connected occurrences reported on the same night.

3. Following the investigation, charge-sheets were submitted against 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.

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. 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, factual and procedural. It is urged 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.

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. 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 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. 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. 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. 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.

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 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 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.

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. 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 13 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. 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.

15.10.2025 Akash (Ashish Naithani, J.) AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, 2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef73518c1 48d140566ab1e26f9cbe61d, postalCode=263001, st=Uttarakhand, serialNumber=27096a1625377537a487dee49224c891823 fc6a0334628b21e516047ed4f22f7, cn=AKASH 14 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.