Chhotey Lal And Another v. State of U.P on 23 Sep 2025 — Criminal Appeal No. -3363 of 1985

Judgment

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 23.11.1985 passed by Additional Sessions Judge, Court No. 7, Shahjahanpur in Session Trial Nos. 335 of 1982, 336 of 1982,

407 of 1982, 338 of 1982 and 339 of 1982, whereby trial court convicted the appellants Chottey Lal and Durvijay Singh (now deceased) under Sections. 399, 402 I.P.C. and Section 25(1)(a) of Arms Act and sentenced them under Sections 399, I.P.C., 2-1/2 years rigorous imprisonment each and a fine of Rs. 100/- each and in default of payment of fine, to undergo three months rigorous imprisonment, under Section 402, I.P.C., 2-1/2 years rigorous imprisonment each and a fine of Rs. 100/- each and in default of payment of fine, to undergo three months rigorous imprisonment and under Section 25(1)(a) of Arms Act to undergo rigorous imprisonment for six months by a common judgment. All the sentences shall run concurrently.

2. Brief facts of the case are that as per first information report dated

24.2.1982, on 23.2.1982, First informant, Sub-Inspector Rajesh Sharma (PW-1) after receiving information from Mukhbir Khas, reached the place of incident with police party, which is a public road. At about 11.15 p.m. three 2 dacoits came from Eastern side and they sat down on the orchard of Mango. After sometime, two other dacoits also came from the same side and they also reached the place where earlier dacoits sat down and thereafter, first informant with police party challenged the dacoits to surrender. On fire of VLP, the whole area was enlightened, due to this light five dacoits caught hold at about 12.00 midnight and the present appellants have been arrested along with the country made pistols and cartridges.

3. S.I. Moolchandra Sharma (PW-2) started the investigation, who prepared sketch plan of the place of incident (Ex- Ka-4) and taken into possession and prepared recovery memo of country made pistols (EX-Ka-1) and after taking permission to prosecution under Section 25 Arms Act from the District Magistrate, charge sheet has been submitted on 17.3.1982, under Sections 399, 402, I.P.C. and S.I. Madan Lal Gautam has also submitted the charge sheet under Section 25 of Arms Act against the appellants.

4. After committal the case by learned Magistrate, the trial court after considering the pre-summoning evidence framed the charges against the appellants under Sections 399, 402, I.P.C. and Section 25(1)(a) of Arms Act against the appellants on 6.9.1982. The appellants denied the charges and demanded trial.

5. To substantiate the charge against the appellants, the prosecution examined three witnesses namely, PW-1 S.I. Rajesh Sharma (first informant), PW-2, S.I. Moolchandra Sharma (Investigating officer of offence punishable under Sections 399, 402, I.P.C., who also proved the charge sheet, which had been submitted by S.I. Madan Lal Gautam under Section 25 of Arms Act) and PW-3 Daya Ram, independent witness of the incident as well as recovery memo.

6. After examination of prosecution witnesses, trial court recorded the statements of the appellants under Section 313, Cr.P.C. wherein they stated that the prosecution has produced false evidence due to enmity. The appellants have not produced any documentary or oral evidence in their defence. 3

7. It is surprising fact that after having gone through the whole judgment, nothing has been found with regard to hearing of appellants as well as Government Advocate.

8. After referring the evidence of S.I. Rajesh Sharma (PW-1), Daya Ram (PW-3), the trial court held that the prosecution successfully proved its case against the appellants beyond reasonable doubt and convicted and sentenced the appellants. Hence, the present appeal.

9. Learned counsel for the appellants submitted that PW-3, Daya Ram as a pocket witness of police, who produced by the prosecution, 2-3 other criminal cases related to offence punishable under Section 25 of Arms Act and Excise Act. It is submitted that there is no FSL report of country made pistol with regard to working condition, as seized. It is further submitted that after having the country made pistols as alleged upon the appellants and the service revolver and guns upon the police party, none has shot fire in the incident. Evidence of PW-1 and PW-3 is wholly unreliable and is not trustworthy as they have not answered any question in their cross- examination with regard to description of mango orchard. It is further submitted that the investigation of the present case has been completed by the police officer, who was appointed at the same police station. It is further submitted that PW-3, Daya Ram is not an independent or public witness of the locality. The impugned judgment and order has been passed against the weight of evidence as well as on the basis of conjectures. 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 Krishna Kumar Shukla, learned counsel for the appellants and learned A.G.A. for the State and perused the material available on record. 4

12. During the pendency of the present appeal, appellant No. 2 Durvijay Singh has died and the present criminal appeal stands abated for appellant No. 2 vide order dated 1.9.2022.

13. Before considering the respective submissions of the parties, it is apposite to mention the position of law with regard to the 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 CrPC 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 5 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.”