State of U.P. vs Counsel for Appellant(s)

learned Chief Judicial Magistrate, Firozabad (flag 'K') has reported that appellant no.2 namely Tinna's surety no.1 Ansar Khan could not be traced out and Mirza Aklakh Beg has died. 2 CRLA No. 633 of 1984

6. To cut a long story short, I do not find any prospect of the accused- appellant no.2 namely Tinna, who is absconding, being traced out and produced before this Court. It is apparent that he is not interested in the disposal of this appeal and has abused the liberty of bail by failing to appear before this Court despite non-bailable warrants issued against him and notice under Section 446 Cr.P.C. has been issued to the sureties went in vain. The question which arises before this Court is that whether this Court is bound to wait perennially for the accused-appellant till the accused-appellant is searched, if at all, and produced before us and keep on adjourning the hearing of this appeal.

7. Faced with the aforesaid contingency and looking to the huge pendency of cases before this Court, I am not inclined to pass over this appeal. Under identical circumstances, the Apex Court, after a comprehensive analysis of previous decisions on the issue, has distilled the legal position into six propositions in paragraph 19 of its judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : "19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2 That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;

19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;"

19.4 That it can dispose of the appeal after perusing the record and judgement of the trial court;

19.5 That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation."

8. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (supra), I proceed to examine this appeal on merits qua appellant no.2 namely Tinna with the assistance Sri Rahul 3 CRLA No. 633 of 1984 Asthana, learned A.G.A. for the State. I have perused the lower court record and heard learned A.G.A. on behalf of the State.

9. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the Judgment and order dated 28.02.1984 passed by the Special Judge (Dacoity Affected Area Act), Agra in Sessions Trial No.44 of 1982 whereby the appellant was convicted under Sections 399/402 IPC and sentenced to undergo five years' R.I, and under Section 25 of the Arms Act he was sentenced to undergo two years' R.I.

10. In nutshell, the incident occurred on 15.3.1982 at about 10:15 P.M. in Village Malupur, Police Station Khadauli. According to the prosecution, the Station House Officer, while proceeding to apprehend accused persons in another case, received information from an informer that 7 to 8 armed persons were preparing to commit dacoity near the said village. Acting on this information, the police party proceeded to the spot and found the accused and their associates making preparations for dacoity. The police asked them to surrender, but the accused allegedly opened fire and attempted to fled away. During the operation, the police apprehended four accused persons on the spot along with arms, while the remaining accused managed to escape. On the basis of the written report a case was registered against the accused persons under sections 399/402, 307 I.P.C. and section 25 Arms Act The accused denied the allegations and claimed for fair trial.

11. The prosecution in order to prove its case examined a total of seven witnesses which are as follows: P.W.-1 S.P Singh Tomar (Station House Officer) :- has stated that, on information given by an informer that 7 to 8 persons were preparing to commit dacoity, the police proceeded towards the spot. Upon reaching there, the police found the accused along with his associates making preparations for the commission of dacoity. The police apprehended four persons on the spot and recovered arms, bullets, one jeep, and other articles. A recovery memo (Ext. Ka-1) was prepared, and later the chik report (Ext. Ka-2) was also prepared. P.W.-2 Ranjit Singh (Sub Inspector) :- stated that, on information given by an informer that 7 to 8 persons were preparing to commit dacoity, the police proceeded towards the spot. Upon reaching there, the police allegedly found the accused along with his associates making preparations for the commission of dacoity. The police apprehended four persons on the spot 4 CRLA No. 633 of 1984 along with arms. P.W.-3 Bhuri Singh :- stated that on the night of the incident he was sleeping at his tubewell. At that time the police came there and asked him to assist them in apprehending the accused persons. On the request of the police, he went with them to the place of occurrence. Thereafter, the police apprehended the accused persons in his presence. He remained present with the police at the spot. P.W.-4 Jagan Singh :- stated that during the night two police officers came to his house and informed him that they had received information that a dacoity might take place at his house. After receiving this information, he remained awake throughout the night along with the two police officers. However, no attempt of dacoity occurred during the night, and the police officials returned in the morning. P.W.-5 Raj Kumar @ Bulla :- stated that on the night of the incident he was sleeping at his tubewell with Bhura and Shyam Singh. At that night the police came there and asked Bhura and Shyam Singh to assist them in apprehending the accused persons. On the request of the police, they went with them to the place of occurrence. P.W.-6 Constable Suresh Babu :- On 15.03.1982 at about 9:00 P.M., he was sent to Village Malupur along with Constable Chandrapal Singh for the security of the house of Jagan Singh. They remained at his house throughout the night to provide security. P.W.-7 Netrapal Singh (Investigating officer ) :- On 16.03.1982, the S.H.O. given charge of the investigation of the case to him. Thereafter, he recorded the statements of witnesses under Section 161 Cr.P.C., visited the place of occurrence, and prepared the site plan (Ext. Ka-3.) After completing the investigation, he submitted the charge sheet (Ext.-Ka-4) against the accused persons. Also submitted two different charge sheets against accused person under section 25 of Arms act (Ext. Ka-5, Ext. Ka-6, Ext. Ks-7, Ext. Ka-8). In defence, the accused stated that the injuries found on their body (Ext. Ka- 14) were caused in some other manner and not as stated by the prosecution and submitted that the police falsely implicated him in this case to avoid responsibility for those injuries.

12. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused-appellants under Sections 399 and 402 I.P.C and sentencing them to three years rigorous imprisonment and further under Section 25 Arms and sentencing him to 5 CRLA No. 633 of 1984 undergo two years Rigorous Imprisonment.

13. Feeling aggrieved by the order of the learned trial court, the appellants have preferred the instant criminal appeal.

14. Bare perusal of the record itself is indicative of fact, that the appellant namely Tinna alongwith his associates making preparations for dacoity. The police asked them to surrender, but the accused opened fire and attempted to fled away. During the operation, the police apprehended four accused persons on the spot along with arms, while the remaining accused managed to escape. Moreover, it is to be noted that as many as 109 incriminating articles have been recovered from the possession of the appellant, such as, one factory made pistol, one country made pistol, two boxes filled with 315 Bore cartridges, which shows that this cannot be a case of false implication. Apart from this one jeep was also recovered from the appellant and no one has come to claim the said jeep, which shows that the same has been procured by the appellant by committing theft or robbery.

15. Per contra, learned A.G.A. has submitted that he judgement and order passed by the learned trial Court does not suffers from any infirmity, perversity or illegality, and therefore, same requires no interference by this Court.

16. Under the facts and circumstances, it cannot be said that there was any deliberate attempt to falsely rope in the accused-appellant in this case, while allowing the real culprit to go scot-free.

17. It is established principle of criminal jurisprudence that testimony of witnesses cannot be thrown away.

18. There is no case or circumstance either existing or emerging after contemplating various aspects of this case qua evidence on record against the appellant no.2 namely Tinna.

19. The learned trial judge while considering the various aspects of the case and various specific facets regarding the commission of the crime and the incident itself has elaborated a well-reasoned and detailed judgment, scrutinzing and analyzing each and every vital aspect of the case and judgment of conviction has been recorded after proper scrutiny of the evidence and facts on record. 6 CRLA No. 633 of 1984

20. In view of above, it may be conveniently summed up that the trial Judge has taken into consideration various aspects of the case and has appraised facts and testimony of prosecution witnesses in right prospective and has rightly recorded finding of conviction and sentenced the appellants for offence under Section 399, 402 I.P.C to undergo five years rigorous imprisonment and under Section 25 Arms Act and sentencing him to undergo two years Rigorous Imprisonment, which is just punishment and would meet the ends of justice.

21. In view of aforesaid discussion, it is obvious that this appeal lacks merit and is dismissed accordingly.

22. The appellant no.2 namely Tinna is at large. The trial court is expected to leave no stone unturned for ensuring arrest of the appellant to enable him to serve out the sentence imposed by the judgment of the trial court.

23. Let a copy of this order/judgment be certified to the court below forthwith for necessary information and follow up action. January 22, 2026 Dev (Mrs. Vani Ranjan Agrawal,J.)

learned Chief Judicial Magistrate, Firozabad (flag 'K') has reported that appellant no.2 namely Tinna's surety no.1 Ansar Khan could not be traced out and Mirza Aklakh Beg has died. 2 CRLA No. 633 of 1984

6. To cut a long story short, I do not find any prospect of the accused- appellant no.2 namely Tinna, who is absconding, being traced out and produced before this Court. It is apparent that he is not interested in the disposal of this appeal and has abused the liberty of bail by failing to appear before this Court despite non-bailable warrants issued against him and notice under Section 446 Cr.P.C. has been issued to the sureties went in vain. The question which arises before this Court is that whether this Court is bound to wait perennially for the accused-appellant till the accused-appellant is searched, if at all, and produced before us and keep on adjourning the hearing of this appeal.

7. Faced with the aforesaid contingency and looking to the huge pendency of cases before this Court, I am not inclined to pass over this appeal. Under identical circumstances, the Apex Court, after a comprehensive analysis of previous decisions on the issue, has distilled the legal position into six propositions in paragraph 19 of its judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : "19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2 That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;

19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;"

19.4 That it can dispose of the appeal after perusing the record and judgement of the trial court;

19.5 That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation."

8. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (supra), I proceed to examine this appeal on merits qua appellant no.2 namely Tinna with the assistance Sri Rahul 3 CRLA No. 633 of 1984 Asthana, learned A.G.A. for the State. I have perused the lower court record and heard learned A.G.A. on behalf of the State.

9. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the Judgment and order dated 28.02.1984 passed by the Special Judge (Dacoity Affected Area Act), Agra in Sessions Trial No.44 of 1982 whereby the appellant was convicted under Sections 399/402 IPC and sentenced to undergo five years' R.I, and under Section 25 of the Arms Act he was sentenced to undergo two years' R.I.

10. In nutshell, the incident occurred on 15.3.1982 at about 10:15 P.M. in Village Malupur, Police Station Khadauli. According to the prosecution, the Station House Officer, while proceeding to apprehend accused persons in another case, received information from an informer that 7 to 8 armed persons were preparing to commit dacoity near the said village. Acting on this information, the police party proceeded to the spot and found the accused and their associates making preparations for dacoity. The police asked them to surrender, but the accused allegedly opened fire and attempted to fled away. During the operation, the police apprehended four accused persons on the spot along with arms, while the remaining accused managed to escape. On the basis of the written report a case was registered against the accused persons under sections 399/402, 307 I.P.C. and section 25 Arms Act The accused denied the allegations and claimed for fair trial.

11. The prosecution in order to prove its case examined a total of seven witnesses which are as follows: P.W.-1 S.P Singh Tomar (Station House Officer) :- has stated that, on information given by an informer that 7 to 8 persons were preparing to commit dacoity, the police proceeded towards the spot. Upon reaching there, the police found the accused along with his associates making preparations for the commission of dacoity. The police apprehended four persons on the spot and recovered arms, bullets, one jeep, and other articles. A recovery memo (Ext. Ka-1) was prepared, and later the chik report (Ext. Ka-2) was also prepared. P.W.-2 Ranjit Singh (Sub Inspector) :- stated that, on information given by an informer that 7 to 8 persons were preparing to commit dacoity, the police proceeded towards the spot. Upon reaching there, the police allegedly found the accused along with his associates making preparations for the commission of dacoity. The police apprehended four persons on the spot 4 CRLA No. 633 of 1984 along with arms. P.W.-3 Bhuri Singh :- stated that on the night of the incident he was sleeping at his tubewell. At that time the police came there and asked him to assist them in apprehending the accused persons. On the request of the police, he went with them to the place of occurrence. Thereafter, the police apprehended the accused persons in his presence. He remained present with the police at the spot. P.W.-4 Jagan Singh :- stated that during the night two police officers came to his house and informed him that they had received information that a dacoity might take place at his house. After receiving this information, he remained awake throughout the night along with the two police officers. However, no attempt of dacoity occurred during the night, and the police officials returned in the morning. P.W.-5 Raj Kumar @ Bulla :- stated that on the night of the incident he was sleeping at his tubewell with Bhura and Shyam Singh. At that night the police came there and asked Bhura and Shyam Singh to assist them in apprehending the accused persons. On the request of the police, they went with them to the place of occurrence. P.W.-6 Constable Suresh Babu :- On 15.03.1982 at about 9:00 P.M., he was sent to Village Malupur along with Constable Chandrapal Singh for the security of the house of Jagan Singh. They remained at his house throughout the night to provide security. P.W.-7 Netrapal Singh (Investigating officer ) :- On 16.03.1982, the S.H.O. given charge of the investigation of the case to him. Thereafter, he recorded the statements of witnesses under Section 161 Cr.P.C., visited the place of occurrence, and prepared the site plan (Ext. Ka-3.) After completing the investigation, he submitted the charge sheet (Ext.-Ka-4) against the accused persons. Also submitted two different charge sheets against accused person under section 25 of Arms act (Ext. Ka-5, Ext. Ka-6, Ext. Ks-7, Ext. Ka-8). In defence, the accused stated that the injuries found on their body (Ext. Ka- 14) were caused in some other manner and not as stated by the prosecution and submitted that the police falsely implicated him in this case to avoid responsibility for those injuries.

12. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused-appellants under Sections 399 and 402 I.P.C and sentencing them to three years rigorous imprisonment and further under Section 25 Arms and sentencing him to 5 CRLA No. 633 of 1984 undergo two years Rigorous Imprisonment.

13. Feeling aggrieved by the order of the learned trial court, the appellants have preferred the instant criminal appeal.

14. Bare perusal of the record itself is indicative of fact, that the appellant namely Tinna alongwith his associates making preparations for dacoity. The police asked them to surrender, but the accused opened fire and attempted to fled away. During the operation, the police apprehended four accused persons on the spot along with arms, while the remaining accused managed to escape. Moreover, it is to be noted that as many as 109 incriminating articles have been recovered from the possession of the appellant, such as, one factory made pistol, one country made pistol, two boxes filled with 315 Bore cartridges, which shows that this cannot be a case of false implication. Apart from this one jeep was also recovered from the appellant and no one has come to claim the said jeep, which shows that the same has been procured by the appellant by committing theft or robbery.

15. Per contra, learned A.G.A. has submitted that he judgement and order passed by the learned trial Court does not suffers from any infirmity, perversity or illegality, and therefore, same requires no interference by this Court.

16. Under the facts and circumstances, it cannot be said that there was any deliberate attempt to falsely rope in the accused-appellant in this case, while allowing the real culprit to go scot-free.

17. It is established principle of criminal jurisprudence that testimony of witnesses cannot be thrown away.

18. There is no case or circumstance either existing or emerging after contemplating various aspects of this case qua evidence on record against the appellant no.2 namely Tinna.

19. The learned trial judge while considering the various aspects of the case and various specific facets regarding the commission of the crime and the incident itself has elaborated a well-reasoned and detailed judgment, scrutinzing and analyzing each and every vital aspect of the case and judgment of conviction has been recorded after proper scrutiny of the evidence and facts on record. 6 CRLA No. 633 of 1984

20. In view of above, it may be conveniently summed up that the trial Judge has taken into consideration various aspects of the case and has appraised facts and testimony of prosecution witnesses in right prospective and has rightly recorded finding of conviction and sentenced the appellants for offence under Section 399, 402 I.P.C to undergo five years rigorous imprisonment and under Section 25 Arms Act and sentencing him to undergo two years Rigorous Imprisonment, which is just punishment and would meet the ends of justice.

21. In view of aforesaid discussion, it is obvious that this appeal lacks merit and is dismissed accordingly.

22. The appellant no.2 namely Tinna is at large. The trial court is expected to leave no stone unturned for ensuring arrest of the appellant to enable him to serve out the sentence imposed by the judgment of the trial court.

23. Let a copy of this order/judgment be certified to the court below forthwith for necessary information and follow up action. January 22, 2026 Dev (Mrs. Vani Ranjan Agrawal,J.)