# State v. Jhabboo and others convicting

- **Citation:** (2008) 3 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-01
- **Case number:** Criminal Appeal No. 486 of 1982
- **Bench:** Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-jhabboo-and-others-convicting-41278
- **Pages:** 5

## Headnote

Code-Section
395/397
I.P.C.-conviction of 10 years R.I.-all the
appellants resident of same village-FIR
lodged
after
13
hours
without
explanation-looted
property
not
recovered
from
the
custody
of
appellants-itself
shows
innocence
of
appellants-trial Court committed great
illegality by passing conviction orderhence set aside.

Held: Para 17

It is also worth while to mention here
that the accused-appellants were not
arrested on the spot at the time of
committing
dacoity
nor
any
looted
property was recovered or discovered
from
their
possession
or
on
their
pointing out. It is very surprising that all
the appellants are resident of same
village. They were named in the F.I.R.
After one day of the incident they were
arrested by the police but nothing was
recovered. This also shows the innocence
of the appellants. Therefore it appears
that the appellants have been falsely
implicated by P.W. 1 in lodging the FIR.
due to the enmity. However the trial
court has committed the error, illegality
in convicting the appellants for the
charges levelled against them.

## Text

3 All] Jhabboo and others V. State of U.P.
949
under Section 33-C(2) direct payment of
regular salary of a permanent employee to
a daily wager on the ground that there is
no vacant of sanctioned post.

16. To my mind, this order would
not have been passed by the Labour Court
as even otherwise no appointment can be
directed to be made by the Labour Court
de-horse the rules for recruitment even
under Section 4K of the U.P. Industrial
Disputes Act, 1947 to Section 10 of the
Industrial Disputes Act (Central), 1947 as
the jurisdiction of Labour Courts or the
Industrial Tribunal is excluded to that
extent in view of settled position of law in
this regard by the Apex Court in a stream
of decisions which are binding on all
courts including Labour Courts as it has
all the trapping of Courts, under Article
141 of the Constitution.

17. For the reasons stated above and
in view of the facts and circumstances of
the case as well as on consideration of law
particularly that the cases cited by the
petitioner are clearly distinguishable, the
writ petition is allowed and the impugned
order is hereby quashed. No order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2008

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Appeal No. 486 of 1982

Jhabboo and others

...Appellants
Versus
State of U.P.

...Respondent

Counsel for the Appellants:
Sri. R.C. Kandpal
Sri. S.K. Tiwari
Counsel for the Respondent:
A.G.A.

Indian
Penal
Code-Section
395/397
I.P.C.-conviction of 10 years R.I.-all the
appellants resident of same village-FIR
lodged
after
13
hours
without
explanation-looted
property
not
recovered
from
the
custody
of
appellants-itself
shows
innocence
of
appellants-trial Court committed great
illegality by passing conviction orderhence set aside.

Held: Para 17

It is also worth while to mention here
that the accused-appellants were not
arrested on the spot at the time of
committing
dacoity
nor
any
looted
property was recovered or discovered
from
their
possession
or
on
their
pointing out. It is very surprising that all
the appellants are resident of same
village. They were named in the F.I.R.
After one day of the incident they were
arrested by the police but nothing was
recovered. This also shows the innocence
of the appellants. Therefore it appears
that the appellants have been falsely
implicated by P.W. 1 in lodging the FIR.
due to the enmity. However the trial
court has committed the error, illegality
in convicting the appellants for the
charges levelled against them.

(Delivered by Hon'ble Shiv Shanker, J.)

1. This criminal appeal, under
section 374 (2) Criminal Procedure Code,
has been filed against the impugned
judgment and order dated l6.2.1982
passed in Session Trial No. 376 of 1980
State Vs. Jhabboo and others convicting
the accused Jhabboo or the offence under
sections 395/397 of Indian Penal Code
and he was sentenced to under go
rigorous imprisonment for 10 years. Other
accused-appellant Sunder, Hansh and
Itwari were also found guilty for the
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
offence punishable under section 395
Indian Penal Code and they were also
convicted and sentenced to under go
rigorous imprisonment for 10 years each.

2. Brief facts arising out in this
criminal appeal is that Sri Punni son of
Khushali lodged the first information
report on 2l.6.1997 at 12.40 P.M.
regarding
the
occurrence
dated
20/21.6.l979 at about 11.00 P.M. after
covering the distance of 10 km. Against
all the four appellants and some unknown
miscreants wherein it has been stated that
all the four accused -appellants named in
the first information report along with
some unknown persons had entered in the
house
of
informant
and committed
dacoity and they have taken ten articles
mentioned in the F.I.R. In the same time
the
wife
of
informant,
brother
of
informant and wife of his brother were
beaten by the miscreants with Dandas.
Consequently they sustained injuries in
the alleged occurrence. All the miscreants
were seen by the informant and the
witnesses in the-light of torches and
lantern. They were also holding gun and
country made pistols at the time of
incident. Named accused-appellants have
been identified in the same incident at the
time of alleged dacoity. After lodging the
F.I.R. Investigation was entrusted to S.I
Babu Ram. On 21.6.1979 at about 3.40
P.M.
Smt.
Sonwati
was
medically
examined by the Doctor and fire arm
injuries were found on her person. Smt.
Pyari was also examined on 21.6.1979 at
4.05 P.M. and 12 injuries were found on
her person.

3. Kanhai was also medically
examined by the Doctor on 21.6.1979 at
4.35 P.M. and 5 injuries were found on
his person. Madari has also been
examined on 21.6.1979 at 5.00 P.M. and
10 injuries were found on his person.
Therefore all the four persons sustained
injuries by blunt object.

4. During the course of investigation
the lantern was taken into possession from
the place of incident and given in
supurdagi of the informant and prepared
its fard supurdaginama and the alleged
torch was also taken from the place of
occurrence
and
was
given
in
the
Supurdagi of witness Hari Prasad and
prepared its fard supurdaginama. The
torches of Hari Prasad and Shakatu were
also taken by the Investigating Officer
and same were given in the Supurdagi of
one Kallu witness and prepared it fard
supurdaginama.

5. The in investigating Officer
inspected the place of occurrence at the
instance of informant and prepared site
plan.
After
completion
of
the
investigation Officer has filed charge
against all the four accused-appellants.
After commitment of the case they were
charged by the concerned Addl. Session
Judge for the offences punishable under
sections 395 and 397 I.P.C. They pleaded
no guilty and claimed to be tried.
Statements of all the four accused persons
were recorded by the trial court under
section 313 Cr.P.C. They have denied all
the evidence adduced against them and
further they have stated that they have
been falsely implicated in this case due to
previous enmity.

6. The prosecution examined P.W.1
Punni. P.W.2 Madari, P.W.3 Dr. Aditya
Kumar, P.W. 4 Lal Mohammad, P.W. 5
Head Constable Lajja Ram, P.W.6 Kallan
and P.W. 7 S.l. Babu Ram.
3 All] Jhabboo and others V. State of U.P.
951

7. No any oral or documentary
evidence has been adduced on behalf of
the accused persons in their defense.

8. After considering the submissions
made by learned counsel for both the
parties the Sessions Judge has convicted
all the four appellants and sentenced them
as mentioned above. Feeling aggrieved by
it they have preferred the present criminal
appeal.

9. I have heard the arguments of
learned counsel for the appellants, learned
A.G.A. and perused the whole evidence
on record.

10. Learned counsel for the
appellants submitted that the F.I.R. has
been lodged with delay of about 13 hours.
No sufficient explanation has been given
regarding it. It is further contended that
the appellants were identified in the house
of P.W. l informant in the light of lantern
and its fard and supurdaginama was also
prepared by the Investigating Officer but
the same has not been produced in
evidence and same has not been shown in
the site plan in the house of P.W. 1 to be
hanged at any place. It is admitted that
there
was
dark
night.
In
such
circumstances the dacoit could not be
identified in the dark night in the house of
P.W. 1. It is further contended that the
prosecution witnesses stated that they
were identified in the torch light out side
of the house of P.W.1. In the dark night
no one can be identified in the torch light
while the number of dacoit has been
shown as 14 or 16. It is further contended
that all the four appellants are resident of
same village and near the house of P.W.1.
In such circumstances there is no
evidence on record that they had gone to
the house of P.W.1 by covering their
faces. It is further contended that they
were not arrested on the spot. No any
looted property was recovered from their
possession or on their pointing out.
Unknown miscreants have not been
arrested by the police till now. Therefore
unknown miscreants have committed the
offence and the appellants have been
falsely implicated in this case due to
enmity.

11. On the other hand learned
A.G.A. submitted that all the appellants
were named in the F.l.R. They were
identified by all the witnesses in the light
of lantern and torches at the time of
incident. It is further submitted that four
persons were beaten by the miscreants.
Consequently, they sustained the injuries
on their person. There was previous
enmity. In such circumstances they have
committed the offence of dacoity in the
house of P.W. 1 and the trial court had
rightly convicted the appellants for
charges levelled against them.

12. This occurrence of dacoity has
committed on 20/21.6. 1979 at 11.00 P.M.
in the house of P.W.1 and the F.I.R. was
lodged on 21.6.l979 at 12.40 P.M.
Therefore the FIR. Ext. Ka-6 has been
lodged with a delay of about 13 hours. No
any sufficient explanation has been given
in the F.I.R. The injured persons were
medically examined after sending them
from the concerned police station after
lodging the F.I.R. This is not the case that
firstly the injured were taken to the
hospital, thereafter the F.I.R. was lodged.
Therefore the F.I.R. has been lodged with
a delay of about 13 hours. In absence of
any sufficient explanation regarding such
delay no reliable can be placed upon such
F.I.R.
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

13. In the F.I.R. four appellants and
10-12 unknown miscreants have been
shown to be dacoits. The unknown
miscreants have not yet been arrested by
the
police
during
the
course
of
investigation. All the four appellants have
been named in the F.I.R. This incident has
taken place in the year 1979. The
appellants Jhabboo and Sunder are the
real brother, Hansh is son of Jhabboo and
Itwari son of Komil. It has been admitted
by P.W. 1 Punni in his cross examination
that three appellants Jhabboo, Sunder and
Hansh are resident of the same village and
in front of his house after passing the gali.
Therefore all four appellants are the
resident of same village of P.W.1. This
incident is of 1979 in those days no body
could dare commit the offence of dacoity
in his/their village without covering
his/their face/faces. However, they have
not covered their faces while entering to
the house of P.W.1. Therefore they have
not taken precaution at the time of
committing the offence of dacoity.

14. P.W. 7 S.I. Babu Ram who is
Investigating Officer of this case has
admitted in his cross-examination that the
place of burning of lantern in the house
was not shown in the site plan Ext. Ka-8
as such place was not told to him by any
witness. P.W. 1 has admitted in his cross
examination that there was dark night. He
has also admitted that dacoits were seen
by him in the Angan in lantern light
which was hanging at the tree of Vine
which was situated in his Angan.
According to the evidence of this witness
there was one tree of Vine which was
standing in his Angan and lantern was
burning in hanging at the same tree. This
fact is not corroborated with the testimony
of P.W.7 or with the site plan. Therefore
it has become suspicion that any lantern
was burning in the Angan of P.W. l at the
time of incident at the Vine tree. In
'absence of lantern light the dacoits could
not be identified in the Angan and in the
torch light out side of his house in the
dark night. It is also worth while to
mention here that such lantern and torches
have also not been produced at the time of
evidence, on behalf of the prosecution.

15. P.W.1 Punni, P.W. 2 Madari,
P.W. 4 Lal Mohammad and P.W.6 Kallan
have been produced on behalf of the
prosecution to prove the case. P.W. 2 is
the injured witness. P.W. 6 Kallan is said
to be the eye witness but he has not.
supported the prosecution case in his
deposition.

16. P.W. 1 Punni has already
admitted that there was dispute in
between the accused-appellants and P.W.
1 regarding the passage. Therefore the
complaint was filed against the appellants
on behalf of P.W.1 before the alleged
occurrence of dacoity. In this complaint
Lal Mohammad P.W. 4 was also the
witness and he is also the witness in the
present occurrence. Therefore he could
not be independent witness but he may be
treated as interested witness against the
accused-appellants. Therefore no any
other independent witness of incident has
been
examined
on
behalf
of
the
prosecution. P.W. 2 Madari is real brother
of P.W. 1. Therefore no reliance can be
placed upon the testimony of P.W. 1,
P.W.2 and P.W.4 and this possibility
cannot be ruled that the offence of dacoity
was committed by unknown miscreants
and later on the appellants have been
involved by P.W.1 on the basis of
previous enmity of the complaint case.
3 All] Apatesh Rai V. State of U.P. and others
953

17. It is also worth while to mention
here that the accused-appellants were not
arrested on the spot at the time of
committing dacoity nor any looted
property was recovered or discovered
from their possession or on their pointing
out. It is very surprising that all the
appellants are resident of same village.
They were named in the F.I.R. After one
day of the incident they were arrested: by
the police but nothing was recovered.
This also shows the innocence of the
appellants. Therefore it appears that the
appellants have been falsely implicated by
P.W. 1 in lodging the FIR. due to the
enmity. However the trial court has
committed
the
error,
illegality
in
convicting the appellants for the charges
levelled against them.

18. In view of discussions made
above I am or the considered view that
this appeal has force and deserves to be
allowed. Consequently this appeal is
allowed. The impugned judgment and
order passed by the trial court is hereby
set aside. All the above four appellants are
hereby acquitted for the charges levelled
against them. They are on bail. Their bail
bonds
arc
cancelled
and
sureties
discharged. There is no need to surrender
them.

19. A copy of this judgment along
with the record of court below be sent
immediately to the court concerned for its
compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43788 of 2008

Apatesh Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri C.S. Srivastava
Sri Sudhanshu Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India
Art.
226Compassionate
Appointment
by
dependent
of
Shiksha
Mitra-claimed
appointment on compassionate groundin absence of such scheme or G.O.
providing
benefit
of
compassionate
appointment-Court can not issue such
direction.

Held: Para 3

In the absence of any such scheme
available for the heirs of the Shiksha
Mitra
the
claim
of
petitioner
is
thoroughly
misconceived.
Moreover,
there is another aspect of the matter.
The appointment of Shiksha Mitra is
made on tenure basis for a particular
session. The wife of petitioner has died
on 22.05.2008 and for the Session 200809 she has no legal right to continue
except of consideration of her case for
renewal on the basis of her past
performance otherwise the post is liable
to be filled in by fresh selection. In such
kind of appointment normally the claim
of compassionate appointment is not
attracted.
Case law discussed:
2006(5) SCC 523, JT 2007 (3) 398.