Swami Naresh and another v. State of U

"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; 3 CRLA No. 1907 of 1982

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."

9. 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 appellants- Bhura Singh and Suresh with the assistance of Sri Rahul 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.

10. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the Judgment and order dated 28.7.1982 passed by learned XIII Additional District and Sessions Judge, Kanpur, in S.T No.233 of 1981 convicting the appellants under Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and sentencing them to undergo one year R.I.. All the sentences shall run concurrently.

11. Prosecution story: The S.S.I Sheo Chandra Singh on 30.01.1981 got information from the police informant that a gang of dacoits Swami Naresh was to assemble at the place of Ram Swaroop Bhatia (Transporter) to commit dacoity and on this information he reached the outpost Kakadeo alongwith two S.I and constables armed with revolvers and VLP. The force was divided into three parties and they hidden behind the trunk and pits. Finally, a total of 9 miscreants assembled on the spot and subsequently on being assured that they were the same persons, fired one round of VLP as a result of which they successfully apprehended six of them and three fled into darkness. The accused were armed with arms and ammunition without any 4 CRLA No. 1907 of 1982 license which were sealed at the spot. The accused were taken into police station and FIR was lodged against them. P.W. 1- S.S.I Sheo Chand Singh pioneered the entire campaign and no sufficient reason has been shown for discarding such a witness. He had clearly stated in his testimony that the accused persons were talking of committing dacoity. P. W. 3. - Gokaran is permanent police witness and therefore his testimony is not reliable. P. W. 2- Ram Murti Dubey, He was a Chaukidar who couldn't accompany the police party because he was on duty from 9 am to 9 pm so he is considered a reliable witness too who was given consistent statement in support of the prosecution. P. W. 4- S.I. Ram Nath Singh has also proved the facts of the case in the very same manner as discussed by the former witnesses. P. W. 5- S.I. Bhullan Singh- This witness has also clearly supported the statements made by P.W.1. and has supported the other witnesses too.

12. The statement of the accused persons was recorded under Section 313 Cr.P.C. wherein the accused persons have denied all the allegation and contended that they have been falsely implicated due to their enmity with the Police. Defense in order to prove it's version examined D.W. Ram Kishore who stated in his testimony that he had enmity with the police officials who used to buy stuff from his shop, but the trial court was of the view that this witness was not included in the list of the accused persons which shows that this witness has simply come up to save his accused brother in the said case. The argument of defense that the recovery memo were not properly prepared but the trial court considers it to be a mere irregularity. The defense stated that one of the witnesses who signed the recovery memo was not presented but the learned trial court observed that mere non- production of a witness cannot be a sufficient ground for the acquittal of the accused.

13. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused-appellants under Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and sentencing them to undergo one year R.I..

14. Feeling aggrieved by the order of the learned trial court, the appellants 5 CRLA No. 1907 of 1982 have preferred the instant criminal appeals.

15. Bare perusal of the record itself is indicative of fact, that the recovery fire arms including military grenades were recovered from the appellants, and finally, a total of 9 miscreants assembled on the spot and subsequently on being assured that they were the same persons, fired one round of VLP as a result of which they successfully apprehended six of them and three fled taking benefit of darkness. The accused were armed with arms and ammunition without any license which were sealed at the spot. The accused were taken into police station and FIR was lodged against them..

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

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

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

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

20. 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.

21. 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 Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and 6 CRLA No. 1907 of 1982 sentencing them to undergo one year R.I., which is just punishment and would meet the ends of justice.

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

23. The abovenamed appellants are at large. The trial court is expected to leave no stone unturned for ensuring arrest of the appellants to enable them to serve out the sentence imposed by the judgment of the trial court.

24. Let a copy of this order/judgment be certified to the court below forthwith for necessary information and follow up action.

25. Let a copy of this order be also kept in connected Criminal Appeal No.2377 of 1982. November 26, 2025 Dev (Mrs. Vani Ranjan Agrawal,J.)

"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; 3 CRLA No. 1907 of 1982

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."

9. 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 appellants- Bhura Singh and Suresh with the assistance of Sri Rahul 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.

10. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the Judgment and order dated 28.7.1982 passed by learned XIII Additional District and Sessions Judge, Kanpur, in S.T No.233 of 1981 convicting the appellants under Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and sentencing them to undergo one year R.I.. All the sentences shall run concurrently.

11. Prosecution story: The S.S.I Sheo Chandra Singh on 30.01.1981 got information from the police informant that a gang of dacoits Swami Naresh was to assemble at the place of Ram Swaroop Bhatia (Transporter) to commit dacoity and on this information he reached the outpost Kakadeo alongwith two S.I and constables armed with revolvers and VLP. The force was divided into three parties and they hidden behind the trunk and pits. Finally, a total of 9 miscreants assembled on the spot and subsequently on being assured that they were the same persons, fired one round of VLP as a result of which they successfully apprehended six of them and three fled into darkness. The accused were armed with arms and ammunition without any 4 CRLA No. 1907 of 1982 license which were sealed at the spot. The accused were taken into police station and FIR was lodged against them. P.W. 1- S.S.I Sheo Chand Singh pioneered the entire campaign and no sufficient reason has been shown for discarding such a witness. He had clearly stated in his testimony that the accused persons were talking of committing dacoity. P. W. 3. - Gokaran is permanent police witness and therefore his testimony is not reliable. P. W. 2- Ram Murti Dubey, He was a Chaukidar who couldn't accompany the police party because he was on duty from 9 am to 9 pm so he is considered a reliable witness too who was given consistent statement in support of the prosecution. P. W. 4- S.I. Ram Nath Singh has also proved the facts of the case in the very same manner as discussed by the former witnesses. P. W. 5- S.I. Bhullan Singh- This witness has also clearly supported the statements made by P.W.1. and has supported the other witnesses too.

12. The statement of the accused persons was recorded under Section 313 Cr.P.C. wherein the accused persons have denied all the allegation and contended that they have been falsely implicated due to their enmity with the Police. Defense in order to prove it's version examined D.W. Ram Kishore who stated in his testimony that he had enmity with the police officials who used to buy stuff from his shop, but the trial court was of the view that this witness was not included in the list of the accused persons which shows that this witness has simply come up to save his accused brother in the said case. The argument of defense that the recovery memo were not properly prepared but the trial court considers it to be a mere irregularity. The defense stated that one of the witnesses who signed the recovery memo was not presented but the learned trial court observed that mere non- production of a witness cannot be a sufficient ground for the acquittal of the accused.

13. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused-appellants under Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and sentencing them to undergo one year R.I..

14. Feeling aggrieved by the order of the learned trial court, the appellants 5 CRLA No. 1907 of 1982 have preferred the instant criminal appeals.

15. Bare perusal of the record itself is indicative of fact, that the recovery fire arms including military grenades were recovered from the appellants, and finally, a total of 9 miscreants assembled on the spot and subsequently on being assured that they were the same persons, fired one round of VLP as a result of which they successfully apprehended six of them and three fled taking benefit of darkness. The accused were armed with arms and ammunition without any license which were sealed at the spot. The accused were taken into police station and FIR was lodged against them..

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

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

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

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

20. 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.

21. 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 Sections 399 I.P.C. and sentencing them to undergo five years R.I; further under Section 402 I.P.C. and sentencing them to undergo five years R.I. and under Section 5 (iii) (b) of Indian Explosive Act and 6 CRLA No. 1907 of 1982 sentencing them to undergo one year R.I., which is just punishment and would meet the ends of justice.

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

23. The abovenamed appellants are at large. The trial court is expected to leave no stone unturned for ensuring arrest of the appellants to enable them to serve out the sentence imposed by the judgment of the trial court.

24. Let a copy of this order/judgment be certified to the court below forthwith for necessary information and follow up action.

25. Let a copy of this order be also kept in connected Criminal Appeal No.2377 of 1982. November 26, 2025 Dev (Mrs. Vani Ranjan Agrawal,J.)