Allahabad High Court
Behari And Others vs State Of U.P. on 9 March, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:52102
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 649 of 1983
Behari And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Mahendra Singh Yadav, learned Amicus Curiae
Counsel for Respondent(s)
:
Govt. Advocate
Court No. - 87
HON'BLE ABDUL SHAHID, J.
1. Heard Sri Mahendra Singh Yadav, learned Amicus Curiae, appearing on behalf of appellant Nos. 2 and 5, and the learned A.G.A. for the State.
2. The present criminal appeal has been filed against the impugned judgment and order dated 11/14.03.1983 passed by IVth Additional Sessions Judge, Aligarh, in Session Trial No. 42 of 1979 convicting the appellants to 5 years R.I. under section 399 I.P.C., 4 years rigorous imprisonment under section 402 I.P.C. and 2 years R.I. under section 25 Arms Act except Malkhan to run concurrently.
3. The learned Sessions Judge decided Session Trial No. 42 of 1979, Crime Nos. 41 to 46 of 1976, Police Station Hathras Junction, District Aligarh (State versus 1. Behari, 2. Radha Charan, 3. Chandrapal, 4. Than Singh, 5. Udai Bhan, and 6. Malkhan). The said Session Trial was decided by the learned IVth Additional Sessions Judge, Aligarh, on 14.03.1983.
4. The accused Behari, Radha Charan, Chandrapal, Than Singh, Udai Bhan, and Malkhan were each sentenced to rigorous imprisonment for a period of five years rigorous imprisonment under Section 399 IPC. They were also sentenced to rigorous imprisonment for a period of four years under Section 402 IPC. The learned Sessions Judge further sentenced accused Nos. 1 (Behari), 2 (Radha Charan), 3 (Chandrapal), and 4 (Than Singh) to rigorous imprisonment for two years under Section 25 of the Arms Act. The accused Udai Bhan preferred Criminal Appeal No. 717 of 1983 before this Court against the aforesaid judgment and order, which was abated on 26.06.2023 by this Court.
5. The present Criminal Appeal No. 649 of 1983 was preferred by accused 1. Behari, 2. Radha Charan, 3. Chandrapal, 4. Than Singh, and 5. Malkhan. During the pendency of the present criminal appeal, the appeal stood dismissed as abated against 1. Behari, 2. Chandrapal, and 3. At present, only two appellants, namely 1. Radha Charan and 2. Malkhan, are alive and contesting the present criminal appeal, which is being decided by this order.
6. The basic prosecution case is that in the intervening night between 26th and 27th March 1976, at about 12:00 in the night, at the Dharamshala of Village Raipur, situated within Police Circle Hathras Junction, District Aligarh, all the accused assembled and made preparations for committing dacoity at the house of one Bachchu Singh alias Rajveer Singh, resident of Village Pabloi. A raid was organized for the arrest of the miscreants on the information of an informer laid to S.I. Police Satyabir Singh. In such raid, as many as seven accused were arrested on the spot after the police party had satisfied itself that it was a gang of dacoits. A search of the accused persons on the spot resulted in recovery of certain incriminating articles as detailed in the case. One Bhup Singh among the miscreants is said to have mace his escape good. Recovery memo Ex. Ka-1 was prepared on the spot which was attested by the witnesses present. A case against the accused was registered and investigated. The conclusion of the investigation resulted in the prosecution of the accused, who were later on committed to the Court of Session and now stand charged in the case as aforesaid. Sections 399 and 402 I.P.C. are quoted hereinbelow:
"Section 399 I.P.C. -Making preparation to commit dacoity.- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 402 I.P.C.-Assembling for purpose of committing dacoity.?Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
7. Learned Amicus Curiae has submitted that the appellants have not committed any offence. The appellants are more than 70 years of age and have been falsely implicated in this case. There is no criminal history of the appellants. No recovery has been made from them. The recovery memos Ex. Ka-1 and Ex. Ka-2 do not bear the signatures of the appellants. Therefore, they are entitled to be acquitted and the appeal deserves to be allowed.
8. Learned A.G.A. for the State has submitted that the appellants have committed serious offences. The prosecution has proved the offences against them beyond reasonable doubt. They were arrested on the spot and recovery was made from them. Therefore, the judgment and order passed by the learned Sessions Judge deserves to be confirmed and the criminal appeal is liable to be dismissed.
9. The incident is alleged to have occurred on the night of 26-27.03.1976 at around 12:00 midnight. The F.I.R. was lodged by Satyabir Singh, Station In-Charge, Police Station Hathras Junction, on 27.03.1976 at 3:15 A.M. As per the contents of the F.I.R., the appellants were members of the gang and the gang leader was Bhupa Singh alias Bhupa. However, Bhupa Singh alias Bhupa was not present on the spot and was not arrested either at the spot or thereafter. S.I. Satyabir Singh, on whose dictation the chik F.I.R. was registered, produced himself as P.W.-1. As per the chik F.I.R., the accused persons were present in the Dharamshala and the police party reached the Dharamshala at around 11:50 P.M. on 27.03.1976 and took their position.
10. Learned counsel for the appellants has submitted that in the site plan no place has been shown indicating where the police party was hiding and how they heard the conversation of the accused persons who were allegedly planning to commit dacoity.
11. According to the chik F.I.R., the police party took position at some distance from the Dharamshala, while the miscreants were talking very slowly. One miscreant stated that Ustad Bhupa Singh had given them time but had not yet arrived, which was unfortunate. Another miscreant stated that they would find sufficient goods at the residence of Bachchu Singh and there was no need to wait further. They should proceed to commit the loot. A third miscreant agreed. Upon hearing this conversation, the police party became assured that it was a gang of dacoits assembled for committing dacoity. The complainant then flashed a torch light on the accused persons and warned them that they were surrounded by the police and should surrender their weapons. Upon this warning, the miscreants fled towards the eastern side. The police parties present at the spot surrounded them and arrested them near the eastern platform of the Dharamshala at around 12:00 midnight along with arms and ammunition. However, one dacoit fled away and could not be apprehended. Subsequently, it was stated that the person who fled away was Bhupa Singh alias Bhupa, the alleged gang leader. However, the very genesis of the F.I.R. indicates that the miscreants themselves had stated that Bhoop Singh had not yet arrived. Thus, there is a contradiction in the prosecution story from the very beginning.
12. It is alleged that Radha Charan had a bag in his hand from which a country-made pistol of 12 bore, five live cartridges, and a two-cell Eveready torch were recovered. However, it is clear that the firearm was not used. It was neither in the hand of Radha Charan nor fired by him. Moreover, the recovery memo Ext. Ka-1 does not bear his signature. Whereas, in the recovery of memo of Ext. Ka-1, there is no signature of this appellant. It is alleged that one Lathi/Bamboo of eight ganth and nine pre has been recovered from the right hand of another appellant/Malkhan. There has been no arms or ammunition has been recovered from Malkhan. Lathi/bamboo is commonly uses by the villagers. There has been no injury of any arms and ammunition by the aforesaid appellants on the police party. There is recovery of 12 pieces of half burnt Bidi and 15 half burnt sticks of matches box, there are not any incriminating material. Whereas, in the Ext. 2 of the recovery of memo, there is no signature of the appellants.
13. P.W.-1/Satyabir Singh, the S.I. who was the complainant and the star witness of the case, stated that he received information from an informer that the gang of Bhoopa alias Bhoop Singh was preparing to commit dacoity at the house of Bachchu Singh. On receiving this information, he collected the police force and proceeded to the spot. He deposed in his examination-in-chief that on the way he has taken alongwith him the witnesses Shanti Swaroop, Bhajanlal, Radhey, Indramohan, Nathi. It is submitted by learned counsel for the appellants that they are their pocket witnesses, how all those witnesses if independent would be available in the night and also proceeded with the police party it raises the certain and serious doubts. It is further stated that both parties of the police had reached the spot around 11.50 P.M., whereas, the P.W-3/Shanti Swaroop has deposed in his statement that he returned after seeing the picture at 6.30 P.M. P.W.-1 deposed that after waiting some time he had heard the conversation from the Dharamshala that one miscreant told Ustad Bhoop Singh has still not come it is very said state of affairs. The time is reaching. Then an another said we will get enough material from the house of Bachchoo Singh. The third miscreant told we must proceed and commit dacoity. On these conversations, he became assured that it is the gang of the dacoits and they are assembled there to commit the dacoity. Then he put the light from his torch on the miscreants and challenged them and stated you are under cover of the police, you must surrender your arms and ammunition and surrender yourself to the police. Whereas in the F.I.R. it is mentioned that none of the miscreants were having any arms in their hands. They were recovered from their bags. There is contradictions in the statement and the basic prosecution case.
14. Learned counsel for the appellants has submitted that there was neither any light nor any fire arm alleged to be used by the miscreants. It is false, fabricated and concocted story created by the police party. They have previously arrested them and implicated in the false and fabricated case. He verifies that a country made pistol and five live cartridges were recovered from the appellant Radhacharan from his bag. It is still clear that it was neither in the hand of the alleged Radhacharan nor used by him. There is only recovery of a lathi which is normal in the hands of any villager. Learned counsel for the appellants has vehemently submitted that even in the recovery memo Ex. Ka-1 and Ka-2 which is alleged to be prepared on the spot were not having any signature of the appellants. The recovery memo is false and fabricated.
15. The P.W.-1 has stated in his statement that no V.L.P. was available at the police station and in that time the VLP has not been received at the police station. VLP is an instrument which is used for the light. The P.W.-1 who is the S.H.O. of the concerned police station as well as the complainant of this case had verified this fact that neither VLP was available at the police station nor VLP had been received at the police station till that time. Dharampal Singh (S.I.), who deposed as P.W.-2, has stated that VLP was available there. There is neither consistency nor corroboration between the statements of P.W.-1 and P.W.-2. The material available at the police station is such that the S.H.O./P.W.-1/complainant is expected to have better knowledge than any other police personnel posted at that police station.
16. In the F.I.R., it has been mentioned that he proceeded with the police party on receiving information that the dacoits were preparing to commit dacoity, and he assembled the police party to arrest them. He has further stated in his deposition that handcuffs and rope were available at the police station, but on that day they did not take the rope and handcuffs from the police station. If the police party had sufficient information and had assembled the entire team to arrest a gang of dacoits, then despite the availability of rope and handcuffs at the police station, their failure to carry these essential materials creates serious doubt on the entire prosecution story.
17. Learned counsel for the appellants has also submitted that P.W.-1 stated that he had collected witnesses from the chowk, but he did not enquire from them what they were doing at night. He has further deposed that he does not remember whether, on that night, it was dark or light. It appears improbable that a person of the rank of S.H.O. would not remember whether, on the date of the incident, it was dark or light. He has further deposed that he did not provide any information to any higher authority through wireless communication that they were going to arrest a gang of dacoits, whereas the distance between the police station and the alleged place of occurrence is about 2 miles. It appears that when the S.H.O. was proceeding for such a risky and important task of arresting a gang of dacoits, he did not deem it fit to inform the higher officials through wireless. He has further stated in his deposition that he did not visit the place of occurrence along with the Investigating Officer. He is the main person who was aware of all aspects of the place of occurrence, yet he did not visit the spot at the time of preparation of the site plan.
18. Learned counsel for the appellants has vehemently submitted that no place has been shown where the police party was hiding and allegedly overheard the conversation of the miscreants, who were said to be speaking very softly. Thereafter, it was presumed that they were a gang of dacoits assembled to commit dacoity. He has further deposed that prior to the date of the incident, he had never seen the place of occurrence. He also deposed that he could not explain where exactly the miscreants were sitting in the verandah. He has himself stated before the Court that when he challenged the miscreants, they started to flee. All of them fled towards the eastern side. When the miscreants stood up and fled, no country-made pistols were visible in their hands. He further stated that at the time of recovery, the cartridges were not loaded in the country-made pistols. All the miscreants were arrested at the platform. One miscreant, who fled towards the eastern side, was chased for about 30?40 yards, but it is not in his memory who had chased him. He has specifically deposed that none of the miscreants, who were attempting to flee from the spot, fired at the police party.
19. It is normal and natural that if there were a gang of dacoits having the intention and preparation to commit dacoity, and were also armed with weapons and ammunition, then upon being challenged by the police, they would ordinarily take out their weapons for their own safety or even use firearms against the police party in the face of serious danger. However, nothing of this sort happened in the present case. It is confirmed by the S.H.O./P.W.-1 that the alleged country-made pistol was recovered from the bag of Radha Charan. No live cartridges were loaded in the said pistol. When he was trying to flee from the spot, neither was the country-made pistol in his hand, nor did he fire at the police party. He has further deposed that no firing took place from either side at the place of occurrence.
20. It has been submitted that all the miscreants were attempting to flee from the spot, and one Bhup alias Bhupa Singh, who is alleged to be the gang leader, fled away. The police personnel chased him for about 30?40 yards; however, even thereafter, the police party did not use any firearm against him or any other miscreant. He has further deposed that even after returning to the police station, he did not inform his higher officials through wireless communication, neither the S.S.P. nor any other authority. All these averments create serious doubt regarding the alleged arrest and recovery of material from the appellants.
21. The S.I., who deposed as P.W.-2, stated that the incident is of 26.03.1976. He verified that one party was headed by Satyabir and another by S.I. Layak Singh. However, S.I. Layak Singh has not been produced by the prosecution before the trial court. He reiterated the prosecution story as mentioned in the F.I.R., stating that all the miscreants were arrested around 12:00 midnight and one fled away. He further deposed that one country-made pistol and five cartridges were recovered from Radha Charan, but the recovery memo does not bear the signatures of any of the accused persons. He also stated that at that time, VLP (light) was available at the police station. However, the S.H.O./P.W.-1, who would be better aware of the affairs of the police station, deposed that there was no VLP available at the police station and that no such lighting facility had been received there up to that time.
22. The incident is alleged to have occurred at around 12:00 midnight, when adequate lighting is crucial. However, there was no source of light available. The position regarding VLP (light) is contradictory in the statements of P.W.-1 and P.W.-2. P.W.-1, who is himself the S.H.O., has failed to clarify in his deposition whether, on the night of occurrence, it was a dark night or there was sufficient light. Ordinarily, such a fact remains in the memory of a person who has conducted such a raid. Even P.W.-2 has deposed that he is not aware whether, at the time they proceeded from the police station, the night was dark or illuminated. He further deposed that he had never seen the place of occurrence prior to the incident. He also stated that there was no torch or any other source of light with the police party. He deposed that the miscreants who fled away were chased by him and two other police personnel for about 60?70 yards, but no one fired upon them, nor did any of the miscreants cause any injury to the police party. On the other hand, P.W.-1 deposed that it is not in his memory who chased the miscreants who fled from the spot; he merely stated that they were chased for about 30?40 yards. Thus, there is a clear contradiction between the statements of P.W.-1 and P.W.-2 regarding the distance and the persons involved in the chase.
23. There is also a contradiction regarding the use of rope. P.W.-2 deposed that the miscreants were brought back after being tied with rope, which was taken from the police station. However, P.W.-1 stated that although rope was available at the police station, it was not taken along when they proceeded for the said operation. Thus, there is no corroboration; rather, there are serious contradictions in the statements of P.W.-1 and P.W.-2, who are responsible police personnel and key members of the police party at the time of the alleged incident. He further deposed that he does not remember whether any information was given to any superior police officer through wireless communication regarding the proposed arrest of the miscreants.
24. Learned counsel for the appellants has submitted that Shanti Swaroop, who deposed as P.W.-3, is a police "pocket witness." Though projected as an independent witness, his deposition is not reliable. He deposed that on the relevant day he had gone to a cinema in Hathras city at Laxmi Talkies, where he watched the film Jai Santoshi Maa. However, he stated that he was not aware of the name of any actor in the film and was unable to state the time at which the movie started. He specifically deposed that the show concluded at 6:30 P.M., whereas the alleged incident took place at about 11:50 P.M. He further deposed that he reached Hathras Junction from Hathras city after about half an hour, and that the distance between Hathras city and Hathras Junction is approximately 6 kilometers. He also stated that it was not in his memory whether that night was dark or illuminated. He similarly deposed that he does not remember whether, at the time of arrest of the miscreants, it was dark or light.
25. He deposed that the Daroga did not fire at the place of occurrence, and therefore no light was generated. He also stated that he is not aware whether a pistol, when fired, produces light. He specifically deposed that he had not seen any handcuffs with any police personnel. According to him, the accused persons were tied with ropes, but those ropes were not of the type usually carried by the police. He further stated that none of the miscreants were guarding at the platform of the Dharamshala, and that they were talking very softly. None of the miscreants fired any shot. He also stated that he is not aware whether the country-made pistols allegedly recovered from the miscreants were loaded or not. He further deposed that when the police party challenged and surrounded the miscreants, all of them attempted to escape; one miscreant fled away from the spot, while the rest were arrested. However, according to him, no one attempted to chase the miscreant who fled, nor was any shot fired at him.
26. There are contradictions in the statements of P.W.-1, P.W.-2, and this witness (P.W.-3). P.W.-1 deposed that the person who fled from the spot was chased for about 30?40 yards by police personnel, but he could not remember their names.
27. P.W.-2/S.I. Dharmendra stated that he, along with two other personnel, chased the fleeing miscreant for about 60?70 yards. In contrast, P.W.-3, who is projected by the police as an independent witness (though described as a "pocket witness" by learned counsel for the appellants), deposed that none of the police personnel attempted to chase the miscreant who fled from the spot. Thus, there is no corroboration among the statements of P.W.-1, P.W.-2, and P.W.-3; rather, there are clear contradictions in their testimonies. However, all three witnesses have consistently deposed that the miscreants did not fire at the police party. The police personnel have also stated that they did not fire at the persons who were attempting to flee. All these circumstances are not normal in light of the alleged incident described by the prosecution. This witness has further supported the contention raised by learned counsel for the appellants that the documents prepared in the case do not bear the signatures or thumb impressions of any of the accused persons. He specifically deposed that he does not identify the accused who were present in the courtroom at that time and that he could not identify them individually. He further stated that he had not recorded any statement of the police in any other case. Rajveer Singh alias Bachchoo Singh, who is alleged to be the person whose house was likely to be targeted by the miscreants, deposed that the police personnel came at around 12:00 midnight and informed him that a dacoity might take place at his house and that he should remain alert. Thereafter, he informed his brother and neighbours, and they became vigilant. On the next day, at about 9:20 A.M., he received information that some miscreants had been arrested from a Dharamshala situated in the jungle of Rajpur and that they were planning to commit dacoity. He also deposed that it is not in his memory whether that night was dark or illuminated. He further stated that there is no chaukidar in his village. He is not an eye-witness; rather, he is merely the person whose house was allegedly to be targeted, but no incident actually took place at his house.
28. Kripa Shankar, who deposed as P.W.-5, is the investigating officer of this case. He deposed that, to the best of his knowledge, no information was provided by S.I. Satyabir Singh to the higher authorities indicating that the investigation of this case could be conducted by any other officer. The said investigation was delegated by S.I. Satyabir Singh, S.H.O., to himself, and he is also a witness in this case. He further deposed that he did not verify the presence of handcuffs at the police station, nor did he record any details regarding the same in the case diary. The statements of the appellants were recorded under Section 313 of the Cr.P.C., in which they denied all the prosecution evidence as well as the alleged incident.
29. There is neither consistency nor corroboration between the contents of the F.I.R. and the statements of the prosecution witnesses recorded before the trial court. There are serious contradictions in the statements of the prosecution witnesses.
30. The alleged incident is said to have taken place at around 12:00 midnight. The police party, which registered the F.I.R. and allegedly conducted the entire operation, did not even know whether it was dark or light on the night of the incident. There is no proof of lighting at the spot, and the evidence recorded by P.W.-1, P.W.-2, and P.W.-3 regarding the presence of light at the place of occurrence is completely contradictory.
31. No offence appears to have been committed. The appellants have been charged with preparation to commit an offence. It is alleged that a country-made pistol and five live cartridges were recovered from Radha Charan, and one lathi from Malkhan. The entire police party is said to have surrounded, threatened, and thereafter arrested the accused, yet none of the miscreants used any arms or ammunition. The country-made pistol and the five live cartridges allegedly recovered from Radha Charan were not even loaded. The recovery purportedly shown from the bag involved no use of firearms by the police personnel, even when the alleged leader of the miscreants, Bhup Singh alias Bhopa, fled from the spot.
32. The appellants are alleged to have been part of a gang of dacoits preparing to commit dacoity. However, the prosecution has not produced any evidence of prior criminal history against them.
33. Initially, there were seven accused. One accused had died during the trial, and accused Beniram also died during the trial. The Sessions trial was decided against six accused persons. Even then, four appellants/accused persons have since died. Now, only appellants Radha Charan and Malkhan are alive, both of whom are alleged to be over 70 years of age.
34. It is the duty of the prosecution to prove its case beyond reasonable doubt. However, there are serious contradictions in the statements of the prosecution witnesses, as well as in the genesis of the F.I.R.
35. In view of the above, the prosecution has failed to prove its case beyond reasonable doubt.
36. Accordingly, the impugned judgment of conviction/sentence and order dated 11.03.1983/14.03.1983, passed in Sessions Trial No. 42 of 1979 (State versus Bihari and others) by the learned IV Additional Sessions Judge, Aligarh, is hereby set aside. The appellant No. 2, Radha Charan, and appellant No. 5, Malkhan, are hereby acquitted. Their bail bonds and sureties stand discharged. They are on bail, hence need not require to surrender.
37. The criminal appeal is allowed.
38. The trial court record be sent to the learned trial court along with a copy of this judgment for necessary compliance. A copy of this judgment shall also be placed on the file.
39. Sri Mahendra Singh Yadav, who was appointed as Amicus Curiae in this case and has given his valuable assistance to the Court, shall be paid Rs. 15,000/- (Rs. Fifteen Thousand Only) towards his fee.
(Abdul Shahid,J.) March 9, 2026 K.K. Maurya