# Dev Dutt & Ors v. State Of U.P

- **Citation:** (2016) 8 ILRA 686
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-10
- **Bench:** Amar Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-dutt-ors-v-state-of-u-p-44372
- **Pages:** 8

## Headnote

This Criminal Appeal was filed against the judgment and order dated 15.12.1984 passed by the Special Judge,
Budaun in S.T. No. 497 of 1981, whereby the appellants were convicted under Sections 399/402 IPC and
Section 25(1)(a) of the Arms Act and sentenced to rigorous imprisonment.

Citation:

Shridhar Koeri Vs. State of Bihar, 2001 (43) ACC 5

Dudh Nath Pandey Vs. State of U.P., (1981) 2 SCC 166

Jaspal Singh Vs. State of Punjab, AIR 1991 SC 1548

State of Punjab Vs. Jagga Singh, AIR 1998 SC 3113

State of U.P. Vs. Punni, 2008 Cr.L.J. 1028 (SC)

Chhotey Singh and others Vs. State, 2004 (50) ACC 101

Result:
Appeal Allowed. Conviction and sentence set aside. Appellants acquitted. Bail bonds cancelled and sureties
discharged. Appellants directed to comply with Section 437-A Cr.P.C.

Case Law discussed:

## Text

686 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 686
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2016

BEFORE

THE HON'BLE AMAR SINGH CHAUHAN, J.

Criminal Appeal No.- 63 Of 1985

Dev Dutt & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
S.B. Johari, G.C. Saxena, Vinay Saran, Vinay Saxena

Counsel for the Respondent:
A.G.A.

Headnote:
This Criminal Appeal was filed against the judgment and order dated 15.12.1984 passed by the Special Judge,
Budaun in S.T. No. 497 of 1981, whereby the appellants were convicted under Sections 399/402 IPC and
Section 25(1)(a) of the Arms Act and sentenced to rigorous imprisonment.

Citation:

Shridhar Koeri Vs. State of Bihar, 2001 (43) ACC 5

Dudh Nath Pandey Vs. State of U.P., (1981) 2 SCC 166

Jaspal Singh Vs. State of Punjab, AIR 1991 SC 1548

State of Punjab Vs. Jagga Singh, AIR 1998 SC 3113

State of U.P. Vs. Punni, 2008 Cr.L.J. 1028 (SC)

Chhotey Singh and others Vs. State, 2004 (50) ACC 101

Result:
Appeal Allowed. Conviction and sentence set aside. Appellants acquitted. Bail bonds cancelled and sureties
discharged. Appellants directed to comply with Section 437-A Cr.P.C.

Case Law discussed:
(Delivered by Hon'ble Amar Singh Chauhan, J.)

(Delivered by Hon'ble Amar Singh Chauhan, J.)
8 All. Dev Dutt & Ors. Vs State Of U.P.
687
1. This criminal appeal has been filed by the appellants Dev Dutt and Hori against the
judgement and order dated 15.12.1984 passed by the Special Judge, Budaun in ST No. 497 of 1981,
under sections 399/402 IPC and 25 Arms Act, PS Rajpura, district Buduan whereby learned Judge
convicted and sentenced the appellants to three years RI under section 399 IPC, two years RI under
Section 402 IPC and two years RI under section 25(1)(a) of the Arms Act. However, all the
sentences were directed to run concurrently.

2. The facts giving rise to the present appeal are that in the night of 26.8.1979, Shri D.P.
Jual, Station Officer, police station Rajpura rceived a secret information that a gang of dacoits
would assemble in the grove of Guava in the night in village Firojpur to commit dacoity at the
house of Roop Kishore, Pradhan of the village Shahjahanabad. On the basis of this information,
SO, D.P. Jual along with SI Yashbir Singh, SI Nand Kishore, some police constables and informer
left for above grove. When the police party reached village Sameri, constables Harpal and Suresh
Chander have been sent to call public witnesses. After some times, they returned with Ompal
Singh, Kalloo Singh and Sipahi Singh residents of village Sameri. Two constables were sent to the
house of Roop Kishore, the Pradhan of Shahjahanabad, in whose house dacoity was to be
committed. The police party was divided into two groups. One group was headed by SO D.P. Jual
while the other was headed by SI Yashbir Singh. Party headed by SO D.P. Jual took position in the
north-west of the hut in the grove while other party took position in the north-east of the hut. At
about 11.45 PM from the southern side three miscreants came and sat near the hut. One of them is
alleged to have remarked that he had brought wine for their entertainment. After 15-20 minutes
they were joined by three other miscreants and all of them started gaging or murmering. It is also
alleged that they were overheard saying that they should not drink much as it is likely to spoil their
plan. Thereafter one of them went inside the hut and returned back after keeping the bottle of the
wine in the hut. It is also alleged that they were over head saying that one of their companion
namely Radhey was late in reaching there. It is further alleged that another dacoit was saying that
he had seen the house of Roop Kishore, Pradhan and since they were sufficiently armed and they
were sufficient in number they should go ahead with their plan without waiting for the arrival of
Radhey. It is also alleged that after some time they were again overhead saying that they are getting
late and they should go to commit dacoity. Thereafter, they got up to move away. On hearing the
above talks SO D.P. Jual being satisfied that it was a gang of dacoits, he accordingly challenged
them and asked them to surrender and VLP shots were fired. Police party apprehended three
members of the gang namely Dev Dutt, Hori and Kunwar Pal while three others managed to run
away.

3. On search being made of the apprehended accused, from the possession of Kunwar (now
deceased) a gun ( Ext. 1) and seven live cartridges (Exts. 2 to 8) along with a torch (Ext.9) were
recovered. From the possession of the accused Dev Dutt, a pistol (Ext. 10) and three live cartridges
(Exts. 11 to 13) were recovered, whereas from the possession of accused Hori, a pistol (Ext. 14)
and four live cartridges (Ext. 15 to 18 were recovered. A bottle of wine was also recovered from the
hut. Recovered articles were sealed and its recovery memo Ext. Ka-1 was prepared. Thereafter the
apprehended accused were taken to the police station and a case was got registered against them.
688 INDIAN LAW REPORTS ALLAHABAD SERIES

4. After registration of the case and after seeking necessary permission of the District
Magistrate, Budaun for prosecution of above accused under section 25(1)(a) of the Arms Act, they
were challaned and separate charge sheets were filed against them.

5. Charges under sections 399/402 IPC and 25(1)(a) of the Arms Act were framed against
accused Dev Dutt and Hori.

6. To bring home the guilt of the accused, the prosecution has examied as many as four
prosecution witnesses.

7. PW 1 is SI Nand Kishore, who is an eye-witness of the incident. He deposed that on
26.8.1979 he was posted as SI at police station Rajpura. On that date on the information of the
informer that a gang of dacoits will assemble at the grove of guava at about 11.30-12.00 in the night
and commit dacoity in the house of Pradhan of villge Shahjahabad. On the basis of said information
this witness along with SO D.P. Jual and requisite force left for village Firojpur. This witness also
called the public witnesses namely Ompal Singh, Sipahi Singh and Kalloo Singh and apprehended
the accused there. From the possession of the accused Dev Dutt, Hoti and Kunawar Pal arms and
ammunication (Ext. 1 to 18) were recovered and recovery memo (Ext. Ka-1) was prepared and
thereafter all above-mentioned apprehended accused were brought to the police station and a case
was registered.

8. PW 2 is Moin Uddin, the investigating officer of the case. He deposed that after the case
was entrusted to him for investigation, he recorded the statements of the witnesses. On the pointing
out of the SO D.P. Jual, he inspected the spot and prepared site plan (Ext. Ka-4) and after
completion of the investigation, he submitted the charge sheet against the accused under section
399/402 IPC, Ext. Ka-5. He also submitted the charge sheet separately against the accused under
section 25 of the Arms Act, which he proved as Ext. Ka 6 to Ka-8 and obtained sanction for the
prosecution of the aforesaid accused under section 25 of the Arms Act from the District Magistrate,
Budaun, which he proved as Ext. Ka 9 to 11.

9. PW 3 is S.O, D.P. Jual. He deposed that on 26.8.1979 he was posted as Station Officer,
police station Rajpura. He corroborated the statements of PW 1 and stated that accused Dev Dutt,
Hori and Kunwar Pal were arrested from the grove of village Firojpur where they had assembled to
commit dacoity at the house of Roop Kishore of Village Shahjahanabad and they were making
preparation to commit dacoity. He further deposed that from the apprehended accused gun, pistols,
cartridges and torch were recovered (Ext. 1 to 18).

10. PW 4, Sipahi Singh is also an eye witness of the incident. He corroborated the
statements of PWs 1 and 3. He further stated that he was present when accused Dev Dutt, Hori and
Kunwar Pal were arrested along with firearm weapons and cartridges.

11. After close of prosecution evidence, the statements of accused persons were recorded
under section 313 Cr.P.C., in which they have stated that they have falsely been implicated in the
8 All. Dev Dutt & Ors. Vs State Of U.P.
689
case due to enmity with the police. However, in defence, they have also produced three defence
witnesses.

12. DW 1 is Buddhi Singh. He deposed that he is the resident of village Firojpur. In his
village, only he owns a grove of guava and from his grove no gang of dacoits was ever
apprehended by the police of police station Rajpura.

13. DW 2, Jaswant Singh, stated that in his presence accused Hori was taken away by the
two police constables from his house on the pretext that Station Officer had called him. This
witness further deposed that next day when he went to the police station, he was informed that Hori
had been challened because he had a connection with one Radhey who was also a dacoit and since
he did not help the police in apprehending Radhey, he was falsely implicated in the present case.

14. DW 3 is Jaivir Singh. He deposed that accused Dev Dutt was picked up from his house
by one sub-Inspector at about 8.00 or 8.30 PM on the pretext that he would sent him back from the
police station in the morning. This witness further deposed that later on, he learnt that accused Dev
Dutt had been falsely implicated in the present case.

15. The learned lower court, after perusing the record and hearing the counsel for the
parties, convicted the appellants as stated herein-above.

16. Being aggrieved and dissatisfied with the findings of conviction recorded by the learned
Special Judge, Budaun, the accused-appellants have preferred this appeal questioning the impugned
order.

17. Heard Shri Pradeep Mishra, holding brief of Shri Vinay Saran, learned counsel for the
appellants and learned Additional Government Advocate for the State-respondent and perused the
trial court record.

18. Learned counsel for the appellants contended that sections 399/402 IPC will not be
attracted in this case. The appellants have falsely been implicated in the present case because of
their enmity with the police. Learned counsel for the appellants further submits that there are
contradictions in the testimony of the witnesses. Only one public witness namely Sipahi Singh has
been examined who appears to be a stock witness of the police. Nothing has been recovered from
the possession of the appellants and the recovery have been planted on the appellants and recovered
weapons were not sent for forensic laboratory for examination.

19. While supporting the impugned judgement, learned Additional Government Advocate
contended that the findings of fact recorded by the trial court is based on evidence, which was clear,
cogent and convincing. Hence, the appeal deserves to be dismissed.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In the present case, the allegations against the appellants are that they have assembled
together in the grove of guava in village Firojpur and were planning to commit dacoity in the house
of Roop Kishore, Pradhan of the village, which is punishable under section 399/402 IPC.

21. For better understanding, Sections 399 and 402 IPC are reproduced herein under:

"399. Whoever makes any preparation for committing dacoity, shall be punished
with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

402. 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."

22. In order to prove the charge under sections 399/402 IPC, it is necessary for the
prosecution to prove that five or more persons have assembled with the intention to commit
dacoity, which is punishable under section 402 IPC, whereas for proving the offence under section
399 IPC, it is necessary for the prosecution to prove that some additional steps have been taken in
the course of preparation to commit dacoity. In the present case, the allegations as well as the
evidence led by the prosecution is that Station House Officer, PS Rajpura received a secret
information from the informer that a gang of dacoits would assemble in the grove of guava in
village Firojpur in the night to commit dacoity in the house of Roop Kishore, Pradhan of the village
Shahjahanabad. Accordingly police reached the spot and apprehended only three accused namely
Dev Dutt, Hori and Kunwar Pal while three accomplices managed to escape. Despite there being
sufficient number of police officials present at the spot, how three accused managed to escape is a
question, which the prosecution has failed to give answer and neither any step has been taken by the
police to apprehend the remaining accused nor the police constables, who chased the accused were
examined so as to establish the charge under section 402 IPC, i.e. assembly to commit dacoity.

23. Hon'ble Supreme Court in the case of Shridhar Koeri Vs. State of Bihar, 2001 (43)
ACC 5 has held that the mere fact that the accused was arrested on the spot and some articles
including fire arms were recovered from his possession would not be sufficient to prove the charge
that he had assembled for making preparation for commission of dacoity.

24. Learned counsel for appellants contended that there are major discrepancies or
inconsistency in the evidence of prosecution witnesses; that police witness Sipahi Singh is the stock
witness of the police and cannot be relied upon and that the trial Court had discarded the evidence
of defence witnesses wrongly.

25. On perusal, I find that there are some contradictions in the statements of PWs. PW 1-SI
Nand Kishore in his evidence has stated that police party on receiving secret information went up to
Babrala in a Bus and the witnesses of public were joined by the police party from bus stand
Rajpura, Whereas PW 3-Inspector D.P. Jual stated that the police party went to the place of incident
on foot. Further according to PW 3-Inspector D.P. Jual, public witnesses joined the police party at
8 All. Dev Dutt & Ors. Vs State Of U.P.
691
village Sameri and not at the bus stand as stated by PW 1. PWs 1 and 3 have stated that the accused
were tied with rope while they were taken to the police station, whereas PW 4 has stated that the
accused were tied with a cloth and not with a rope.

26. As regards contention of the learned counsel for the appellants that only one public
witness namely Sipahi Singh has been examined who is said to be stock witness of the police, I find
that in the FIR three persons namely Ompal Singh, Kalloo Singh and Sipahi Singh have been
mentioned as public witnesses, but only Sipahi Singh has been examined by the prosecution as PW
4. Sipahi Singh has admitted that he had earlier given evidence for the police in a case under the
Excise Act and also in another case under sections 399/402 IPC. Therefore, it cannot be denied that
above witness is not the stock witness.

27. It is also contended that defence evidence was discarded or disbelieved by the trial
court because witnesses were resident of the same village of the accused. DW 1 is Buddhi Singh.
He stated that in his village only he owns a grove of guava and from his grove, no gang of dacoits
was ever apprehended by the police. DW 2, Jaswant Singh, has stated that in his presence accused
Hori was taken away from his house because he had a connection with Radhey, who was also
dacoit and since he did not help the police for apprehending said Radhey and police had a motive
for false implication.

28. It is a matter of fact that DW 1, Buddhi Singh is the grove holder and investigation is
silent on this point for the reason better known to the investigating officer. The evidence of the
grove holder regarding assembly of the dacoits cannot be disbelieved by saying that no suggestion
was given to the prosecution witnesses that grove from where accused were apprehended belongs to
DW 1 Buddhi. For assessment or evaluation of evidence of defence witness, separate yardstick
cannot be applied, but the efforts are being made by the trial court to discard the defence evidence
illegally.

29. Hon'ble Supreme Court in the case of Dudh Nath Pandey Vs. State Of U.P. (1981)2
SCC 166 has held that defence witnesses are entitled to equal treatment with those of the
prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence
witnesses. Quite often, they tell lies but so do the prosecution witnesses.

30. The prosecution case in hand, suffers from infirmity as neither any firing was said to be
done by the miscreants assembled with deadly weapon nor the person in whose residence dacoity
was to be committed was examined. All these things such as inconsistency, discrepancy and
infirmities throw a cloud or doubt on genesis of the case for which appellants are entitled to be
acquitted after getting benefit of doubt (Chhotey Singh and others Vs. State, 2004(50) ACC 101).

31. Learned counsel for the appellants argued that the recovery has been planted on the
appellants and the recovered items were not sent to Forensic Laboratory for ascertaining as to
whether the weapons recovered were in working condition or not. He has placed reliance on the
692 INDIAN LAW REPORTS ALLAHABAD SERIES

case law of Jaspal Singh Vs. State of Punjab, reported in AIR 199 SC 1548, in which it has been
observed:

"Admittedly, no evidence was led by the prosecution to prove that the gun was in
working condition and that the cartridges, which were found from the person of the appellants were
live cartridges. Neither ASI Balbir Singh had stated so nor any report from an expert was obtained
to establish that the gun was in working condition and that five cartridges were live. What was
found in the gun were two empty and not live cartridges and, therefore, it was not proper to
presume that it was in working condition. In absence of any evidence to that effect, the conviction
of the appellants under both these aforesaid sections cannot be upheld."

32. Further, reliance has been placed on the case law of State of Punjab Vs. Jagga Singh,
AIR 1998 SC 3113, wherein, Hon'ble Supreme Court observed as under:

"Though the evidence of PW 1, HC Baldev Singh and PW 3, Basant Singh
establishes that the respondent was found in possession of one 12 bore DBBL gun and found live
cartridges, there is no satisfactory evidence to show that the said gun and the cartridges were sent
for examination by the Central Forensic Scientific Laboratory. There is no report from the
Forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working
condition or that the said cartridges were live cartridges..... Therefore, in absence of any evidence
to show that the respondent was found in possession of one .12 bore DBBL gun in a working
condition and four live cartridges, the respondent cannot be convicted."

33. In the case of State of UP Vs. Punni, 2008 Cr.L.J 1028 (SC), Hon'ble Supreme Court
held that dacoits were arrested without any resistance or struggle and contents in the FIR that police
had received information from an informer was not supported by the sub-Inspector. The accused
were held entitled to acquittal.

34. In view of what has been indicated herein above, I am of the opinion that the
prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt.
Recovery of pistols and cartridges from the appellants are also doubtful in the absence of any CFSL
report and benefit of doubt is to be given to the appellants.

35. Accordingly, the appeal is allowed. The impugned judgement and order dated
15.12.1984 passed by the Special Judge, Budaun is set aside. The appellants Dev Dutt and Hori are
acquitted of the charges levelled against them. The appellants are on bail. Their bail bonds are
cancelled and sureties are discharged. The appellants are directed to comply with the provisions of
section 437-A Cr.P.C.

36. Let a copy of this order be sent to the court concerned for compliance.
------------
8 All. Smt. Shanti Devi Vs State Of U.P.
693
(2016) 8 ILRA 693
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1099 Of 2005

Smt. Shanti Devi ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
B.R.J. Pandey, Amar Nath Tiwari, Arvind Kumar Srivastava, Ramendra Nath Tewari, V.P.S. Kushwaha, V.S.
Kushwaha

Counsel for the Respondent:
Government Advocate (Shri J.K. Upadhyay, Kumari Meena, Ms. Manju Thakur, A.G.As.)

Headnote:
Penal Code, 1860 - Sections 302, 201 - Murder and causing disappearance of evidence -
Appeal against conviction - Case based entirely on circumstantial evidence - Alleged illicit
relationship as motive - Recovery of dead body at pointing out of accused - No proof of
presence of accused at place of occurrence at relevant time - Chain of circumstances incomplete
- Benefit of doubt - Acquittal.
The appeal was directed against the judgment and order dated 03.02.2005 passed by the learned Additional
Sessions Judge (Fast Track Court), Sonebhadra in Sessions Trial No. 81 of 2002, whereby the appellant was
convicted under Sections 302 and 201 IPC and sentenced to life imprisonment with fine under Section 302 IPC
and five years' rigorous imprisonment with fine under Section 201 IPC, sentences to run concurrently.
The prosecution case rested wholly on circumstantial evidence. The circumstances relied upon were: (i)
alleged screaming of the deceased from the house, (ii) alleged presence of the appellant in the house at the
relevant time, (iii) suspicion arising from freshly plastered courtyard and blood-stained articles, (iv) alleged
illicit relationship between the appellant and her brother-in-law as motive, and (v) recovery of the dead body
at the pointing out of the appellant.
Held, that in cases based on circumstantial evidence, the prosecution must establish each circumstance
beyond reasonable doubt and the chain of circumstances must be so complete as to exclude every hypothesis
except that of guilt of the accused. The vital link of presence of the appellant inside the house at the time of
occurrence was not established by cogent and reliable evidence. The testimony of prosecution witnesses did
not conclusively prove her presence at the relevant time. The alleged motive of illicit relationship was also not
satisfactorily proved.
Further held, that in the absence of proof of the accused's presence at the scene of occurrence, the chain of
circumstances was incomplete. Where there is a break in the chain of circumstances, the accused is entitled to
benefit of doubt. The trial court erred in recording conviction on the basis of conjectures and misappreciation
of evidence.