# The State of U.P v. Nawab

- **Citation:** (2014) 1 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-28
- **Case number:** Government Appeal No. 2869 of 1984
- **Bench:** Rakesh Tiwari, Kalimullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-nawab-42859
- **Pages:** 8

## Headnote

Cr.P.C.-Section-378-Govt. Appeal against
acquittal-offence under section 392, 397,
1 All] The State of U.P. Vs. Nawab

445
411 I.P.C. -all the accused well known to
informant
number
of
cases
pending
between them-recovery memo prepared at
public vicinity-neither the prosecution is
named witness nor any independent public
witness produced-story of firing 10 times
also falsify the police story-license acquittal
held-where reasonable debts are thereHigh Court not to interfere-unless acquittalfound wrong and involves miscarriage of
justice-no interference by Appellate Court
requiring-according dismissed.

Held:Para-39
The factum of robbery as well as
recovery of aforesaid articles from the
possession
of
accused
Nawab
and
Gandhi Rana renders unreliable and,
therefore,
they
have
rightly
been
disbelieved by the learned trial court.

Case Law Discussed:
1991 Cr.L.J.2020

## Text

444 INDIAN LAW REPORTS ALLAHABAD SERIES

financial crisis [Shiv Kumar Dubey
(supra)]. In this background, Appropriate
Authority is supposed to dispose of such
applications within a shortest possible
time. In any case, application should not
be kept pending for more than three
months.

(b) Appointment under the Rules
cannot be refused merely on the ground
that financial status of the applicant is
sound. Nor payment of retiral benefits at
the time of death, furnishes any ground
for refusal.

(c) Non availability of posts is no
ground to refuse appointment.

(d) Appointment on Class III post
cannot be refused merely on the ground
that deceased was Class III/IV employee.

(e) Appointment has to be offered
according to qualification and suitability
of candidate and the applicant should be
given an appointment commensurate
therewith. If appointing authority does not
give appointment on the post claimed by
applicant
because
of
non-suitability,
reasons have to be recorded by the
appointing authority.

(f) Dependent of deceased has no
right to claim particular position or place
and it is in the discretion of the appointing
authority
to
pass
appropriate
order
warranted in the facts and circumstances
of the case.

50. In the instant case, although
District Judge was fully justified in
calling for details of financial status, but
since time prescribed for furnishing
details of property had not expired,
rejection of the application before expiry
of
the
period
was
not
correct.
Consequently, finding given by District
Judge regarding non-submission of details
of properties is uncalled for.

51. From the affidavit filed by
Meera
Agrawal,
Prashant
Agrawal,
Prabhat Agrawal and Smt. Harpyari Devi,
petitioner's financial status and need is
quite apparent but it is to be seen by
District Judge.

52. In view of above, impugned
order cannot be sustained and writ
petition deserves to be allowed.

53. Writ petition is allowed. Order
dated 28.09.2013 is quashed. District
Judge is directed to pass fresh order in
accordance with law and observations
made herein above within three weeks.

54. Copy of the order be sent to
Principal
Secretary,
appointment/
personnel with direction to circulate it
among various department of State
Government for compliance.

55. Record be sent back.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2014

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE KALIMULLAH KHAN, J.

Government Appeal No. 2869 of 1984

The State of U.P.................. .. Appellant
Versus
Nawab.....................Accused-Respondent

Counsel for the Petitioner:
Sri S.N. Tripathi (A.G.A.)

Counsel for the Respondent:
Sri G.R.S. Pal

Cr.P.C.-Section-378-Govt. Appeal against
acquittal-offence under section 392, 397,
1 All] The State of U.P. Vs. Nawab

445
411 I.P.C. -all the accused well known to
informant
number
of
cases
pending
between them-recovery memo prepared at
public vicinity-neither the prosecution is
named witness nor any independent public
witness produced-story of firing 10 times
also falsify the police story-license acquittal
held-where reasonable debts are thereHigh Court not to interfere-unless acquittalfound wrong and involves miscarriage of
justice-no interference by Appellate Court
requiring-according dismissed.

Held:Para-39
The factum of robbery as well as
recovery of aforesaid articles from the
possession
of
accused
Nawab
and
Gandhi Rana renders unreliable and,
therefore,
they
have
rightly
been
disbelieved by the learned trial court.

Case Law Discussed:
1991 Cr.L.J.2020

(Delivered by Hon'ble Kalimullah Khan, J.)

1. We have heard Sri S.N. Tripathi,
learned
A.G.A.
appearing
for
the
appellant-State, and Sri G.R.S. Pal,
learned
counsel
appearing
for
the
respondents-accused. Perused the record.

2. This government appeal is
preferred under Section 378 Cr.P.C. on
behalf of State of U.P. against the
accused-respondents, namely Nawab son
of Ashik Husain and Gandhi Rana son of
Moti Rana. The appellant challenges the
validity and correctness of the impugned
judgment and order dated 4.7.1984 passed
by Assistant Sessions Judge, Badaun in
S.T. No. 59 of 1984.

3. As per report of C.J.M. Badaun,
dated 17.4.2012 and order of the Court dated
9.7.2012, accused-respondent no. 2, Gandhi
Rana has died during pendency of appeal
hence, appeal against him is abated.

4. The accused-respondents were put
on trial for the charges under Sections
392/397 and Section 411 I.P.C. by the
Police Station-Kotwali, District-Badaun
and acquitted by the impugned judgment
and order dated 4.7.1984, aforesaid.

5. The prosecution case before the
sessions court in brief was that on
25.6.1983 complainant Mohar Singh
along with Malik Jalil Ahmad Tonkbala
were going to Astana Alia Tonknagla at
about 9.00 A.M., two accused persons
appeared and one of them put his
tamancha on the chest of Mohara Singh
and
directed
to
handover
all
his
belongings and also threatened to kill him
if he raised any hue and cry. His other
companion
standing
with
tamancha,
snatched his purse containing Rs.120/- or
125/- and certain documents and the wrist
watch. Accused persons also took a
search of Jalil Ahmad but nothing was
found on his person. Thereafter, the
accused
persons
ran
away
towards
Sahbajpur. On an alarm being raised by
the complainant, some member of the
public reached there and chased the
assailants, but due to fear of tamancha
they were unable to apprehend them.

6. Subsequently, complainant Mohar
Singh lodged a first information report of
the incident at Police Station- Kotwali,
District-Badaun at about 9.35 A.M. on
25.6.1983 naming accused Nawab with
his address under Section 392 I.P.C..

7. On an information received from
the informer that two accused persons
were standing near the Kothi of Harish
Chandra
Singh,
the
police
party
proceeded along with informer. When the
accused persons saw the police party, they
tried to run away, but complainant and
446 INDIAN LAW REPORTS ALLAHABAD SERIES

other members of public succeeded in
arresting the accused persons during
which some injuries were caused to the
accused persons by the police in their self
defence as accused are said to have fired
with their country made pistol at police
personnel.

8. On their search, Nawab was
found in his possession of a Purse of
Mohar Singh containing Rs.120/- and an
extract of Khatauni. A tamancha and three
live cartridges were also recovered from
his possession. From the possession of
Gandhi Rana, wrist watch of Mohar
Singh, one tamancha and four live
cartridges, were also recovered.

9. After recovery, the relevant
recovery memos were prepared and the
case was investigated and charge sheet
was
submitted
against
the
accused
persons under Sections 392/411 IPC and a
separate charge sheet was also submitted
under Section 397 IPC against them
which was tried in Sessions Trial No. 403
of 1983: State of U.P. Vs. Nawab and
Gandhi Rana, Sessions Trial No. 404 of
1983: State of U.P. Vs. Gandhi Rana
under Section 25 of Arms Act, and
Sessions Trial No. 405 of 1983: State of
U.P. Vs. Nawab under Section 25/27 of
Arms Act. The accused persons pleaded
not guilty to the charges and claimed their
trial.

10. The prosecution in support of its
case examined Mohar Singh (P.W. 1),
Malik Jalil Ahmad (P.W. 2) and V.S.
Yadav (P.W. 3).

11. On appreciation of the facts and
evidence on record, the sessions court
acquitted all the accused persons by the
impugned judgment and order dated
4.7.1984, mainly on the grounds; that
besides the two victims prosecution did
not produce any independent witness
although these two witnesses admitted
that other witnesses from public were also
present there; that there was no mention
in the first information report regarding
specific role played by the two miscreants
and there is contradiction in their
statements; that the reliability of the
prosecution witnesses was doubtful and
that the accused persons were entitled for
benefit of doubt.

12. Aggrieved, State of U.P. has
filed present appeal.

13. We have heard Sri S.N. Tripathi,
learned A.G.A. and Sri G.R.S. Pal,
counsel for the accused-respondents.
Perused the record.

14. Learned A.G.A. has assailed the
impugned judgment and order on the
grounds; that it was broad day light
incident regarding which first information
report was lodged promptly and the
accused persons were arrested soon after
the crime and looted properties were
recovered from their possession; that
learned trial court wrongly rejected the
testimony of victims only on the ground
of non-mentioning of specific role of the
accused persons in the first information
report; that the trial court wrongly treated
the omission in the first information
report as contradictions,in as much as, the
first information report in which it was
clearly mentioned that one accused placed
tamancha on his chest and the other was
looting the victims. Thus, there was no
contradictions at all in between the
statement of the prosecution witnesses
and the FIR. He has also assailed the
impugned judgment and order on the
1 All] The State of U.P. Vs. Nawab

447
ground that finding of the trial court that
such an act of robbery could not have
been committed in day light on a busy
road is merely based on surmises and
conjectures; that recovery memos fully
corroborate the prosecution version as
mentioned in the first information report;
that prompt action on the part of the
police has wrongly been criticised by the
trial court when from the evidence, it is
clear that there was hardly any time to
make out a false case against the accused
persons; that recovery of illicit arms and
ammunitions were fully proved by the
prosecution by examining reliable and
independent witnesses, but the same has
been wrongly rejected by the trial court.

15. Per contra, learned counsel for
the accused-respondent has submitted that
the view taken by the learned trial court is
possible view. The prosecution has failed
to prove its case beyond all reasonable
doubts. No independent witness has been
produced either to prove the incident of
loot or recovery of looted property. Both
the witnesses are interested witness and
belong to one group, therefore, they are
not trustworthy. According to him appeal
lacks merit and deserves dismissal.

16. Before making re-appraisal of the
prosecution evidence available on record we
would prefer to discuss the legal position of
the matter involved in this case.

17. Section 392 I.P.C. reads as
under:-

"S. 392. Whoever commits robbery
shall
be
punished
with
rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine; and, if the robbery be
committed on the highway between
sunset and sunrise, the imprisonment may
be extended to fourteen years."

"Robbery has been defined in Section
390, I.P.C. Section 392, I.P.C. contemplates
that the accused should have from the very
start, the intention to deprive the complainant
of the property and should, for that purpose,
either hurt him or place him under wrongful
restraint. The charging section is Section
392."

18. Section 390 I.P.C. reads as
under:-

"S. 390. In all robbery there is either
theft or extortion.

Theft is "robbery" if, in order to the
committing of the theft, or in committing
the theft, or in carrying away or
attempting
to
carry
away
property
obtained by the theft, the offender, for
that end, voluntarily causes or attempts to
cause to any person death or hurt or
wrongful restraint, or fear of instant death
or of instant hurt, or of instant wrongful
restraint.

Extortion
is
"robbery"
if
the
offender, at the time of committing the
extortion, is in the presence of the person
put in fear, any commits the extortion by
putting that person in fear of instant death,
or instant hurt, or of instant wrongful
restraint to that person, or to some other
person, and, by so putting in fear, induces
the person so put in fear then and there to
deliver up the thing extorted.

Explanation - The offender is said to be
present if he is sufficiently near to put the
other person in fear of instant death, of
instant hurt, or of instant wrongful restraint."

19. Lord Macaulay, the Authors of
Code have remarked, "There can be no
448 INDIAN LAW REPORTS ALLAHABAD SERIES

case of robbery which does not fall within
the definition either of theft, or of
extortion.
But
in
practice
it
will
perpetually be matter of doubt whether a
particular act of robbery was a theft, or an
extortion. A large proportion of robberies
will be half theft, half extortion.

20. When an accused is guilty of
robbery he is to be convicted under Section
392, I.P.C. When accused is found guilty
under Section 392 for committing robbery
and under Section 411 for retaining stolen
property, his conviction under Section 411
I.P.C. is improper. For considering the
language of Section 411, dishonest retention
is contradistinguished in that section from
dishonest reception. The act of dishonest
removal within Section 379 constitutes
dishonest reception within Section 411 and
so the thief does not commit the offence of
retaining
stolen
property
merely
by
continuing to keep possession of the
property he stole. The theft and taking and
retention of stolen goods form one and the
same offence and cannot be punished
separately.

21. Therefore, in the case in hand
accused cannot be convicted under
Section 392, I.P.C. as well as under
Section 411, I.P.C. in the facts and
circumstances of this case because the
articles which are said to have been
recovered from their possession are said
to have been looted soon before its
recovery, from first informant Mohar
Singh P.W.-1, by the same accused.

22. Section 411 I.P.C. reads as
under:-

"S.
411.
Whoever
dishonestly
receives or retains any stolen property,
knowing or having reason to believe the
same to be stolen property, shall be
punished with imprisonment of either
description for a term which may extend
to three years, or with fine, or with both."

23. Section 410 explains what comes
under the words 'stolen property'. Things
which have been stolen, extorted, or robbed,
or which have been obtained by criminal
misappropriation or criminal breech of trust
come under extended significance given to
these words. The essence of the offence of
receiving stolen property under Section 411
consists in the receipt or retention, with full
knowledge at the time of receipt or retention
that the property was obtained in one of the
ways specified in Section 410. It is
immaterial whether the receiver knows or not
who stole it. The section does not apply to
the actual thief. The class of persons against
whom it is directed is a class to whom these
alternative words apply- "knowing or having
reason to believe the same to be stolen
property.

24. In Triambak vs. State of M.P.,
AIR 1954 SC 39 : Criminal Law General
335. The Supreme Court laying down the
ingredients of offence under Section 411,
I.P.C. lays down that the prosecution is to
establish : (1) that the stolen property was
in the possession of the accused, (2) that
some person other than the accused had
possession of the property before the
accused got possession of it, and (3) that
the accused had knowledge that the
property was stolen property.

25. To sustain conviction under
Section 411, the identity of the property
recovered from the possession of the accused
with the property stolen must be established.

26. Offence of theft being distinct
from the offence of receiving stolen
1 All] The State of U.P. Vs. Nawab

449
property, the person charged for offence
of theft only cannot be connected for
receiving or retaining stolen property.

27. Section 397 I.P.C. reads as
under:-

"S. 397. If, at the time of committing
robbery or dacoity, the offender uses any
deadly weapon, or causes grievous hurt to
any person, or attempts to cause death or
grievous hurt to any persons, the
imprisonment with which such offender
shall be punished shall not be less than
seven years."

28. Sections 397 and 398 do not
create any offence but merely regulate the
punishment already provided for robbery
and
dacoity.
This
section
fixes
a
minimum term of imprisonment when the
commission of robbery and dacoity has
been attended with certain aggravating
circumstances, viz., (1) the use of a
deadly weapon, or (2) the causing of
grievous hurt, or (3) attempting to cause
death or grievous hurt.

29. Section 397, I.P.C. does not make
any act an offence. It only provides
minimum punishment for some offences
under certain circumstances i.e. when deadly
weapon is used for grievous hurt is caused or
attempt to cause death or grievous hurt is
made. Section 397, I.P.C. only provides for
enhancement of the term of imprisonment in
certain cases when offender uses a deadly
weapon or causes grievous hurt to any
person. Conviction should be under Section
392 read with Section 397, I.P.C. if the
charges are found proved.

30. Section 397, I.P.C. cannot be
applied constructively. It relates only to
the offender who actually uses the deadly
weapon himself or caused grievous hurt
or attempted to cause death or grievous
hurt at the time of committing loot or
dacoity.

31. Charging accused under Section
397, I.P.C. simpliciter, framing of charge
under Section 397 only is defective. It is
to be famed along with Section 392 or
Section 395, as the case may be. Section
397, I.P.C., being not a substantive
offence, but only a rider to Section 392,
I.P.C. a single charge need be formed for
an offence under Section 392, read with
Section 397, I.P.C.

32. To bring home the enhanced
penalty under Section 397, I.P.C. the
prosecution is to establish (a) that the accused
persons committed robbery or the accused
(five or more) committed dacoity, (b) that any
of them while committing dacoity either used
a deadly weapon or caused a grievous hurt to
any person or attempted to cause grievous hurt
or death to any person. Then enhanced
punishment would be attracted to the very
accused who used deadly weapons or
attempted to cause death or grievous hurt or
caused grievous hurt.

33. In view of the aforesaid legal
position, accused cannot be convicted and
sentenced separately under Section 397,
I.P.C.

34. In the backdrop of the aforesaid
legal position of the offences punishable
under Section 392 read with Section 397
and 411, I.P.C. we have reconsidered and
made reappraisal of the evidence led by
prosecution to prove the charges framed
against accused.

35. Perusal of impugned judgment
shows that both the witnesses i.e. P.W. 1
450 INDIAN LAW REPORTS ALLAHABAD SERIES

and P.W. 2, were pre-known to each
other, although they had expressed their
non-acquaintance to each other. Mohar
Singh, P.W.1 has admitted that in number
of criminal cases lodged by him another
witness, Malik Jalil Ahmad, P.W. 2 had
stood prosecution witness for him and
Malik Jalil Ahmad, P.W. 2 has similarly
admitted that in more than one case
instituted by him, Mohar Singh, P.W. 1
has stood prosecution witness for him.
Both the witnesses, P.W. 1 and P.W. 2
have deposed that looted articles were
recovered from the possession of accused
persons, but none of those articles have
been produced by the prosecution. Non
production of case properties during trial
undermines the sanctity of recovery.

36. In the first information report,
P.W. 1, Mohar Singh has named the
accused Nawab son of Ashik Husain with
his address, but he has not disclosed as to
whether the aforesaid accused Nawab had
put his country made pistol at his chest to
frighten him in order to loot or he was the
person who actually looted the victim.
The learned trial court has rightly held
that had Mohar Singh, P.W. 1 been preacquainted with accused Nawab, he
would have assigned the specific role
against him, but non assigning the
specific role against accused Nawab tells
heavily against the prosecution.

37. It has come in the evidence of
I.O. (P.W. 3) of the case that during the
course of recovery accused persons had
fired upon the police party who were
more than ten in number, but non
sustaining injury by police party casts a
serious doubt on the veracity of mode and
manner of recovery and the arrest of the
accused persons. The police does not
claim that in order to apprehend the
accused persons they fired upon them in
self
defence.
This
appears
to
be
improbable and unnatural.

38. Recovery memo, ex. Ka-2 and Ka3, disclose that there were two prosecution
witnesses, namely Pooran Lal son of Lochi
Murao and Surendra Kumar Saxena son of
Rang Bahadur Saxena, but none of them
have been produced to prove the factum of
recovery. The place of recovery is a busy
road. Incident took place in broad day light
but none of the independent witness came
forward to support the recovery. It is fatal to
prosecution.

39. The recovery memos prepared
show that Rs.122/-, khatauni extracts and an
application along with two plain papers and a
small chit of papers were recovered from the
possession of the accused Nawab, but Mohar
Singh, P.W. 1 says that only cash,
application and khatauni extracts were
recovered from him. Meaning thereby that
no other thing was recovered from him.
Malik Jalil Ahmad, P.W. 2 has deposed that
from the purse a paper extract containing
address was recovered from the possession
of accused Nawab. He had not deposed that
plain papers were also recovered from him.
Similarly as regards recovery of watch of
Mohar Singh, P.W. 1 according to the
prosecution, it was recovered from the
accused Gandhi Rana. Mohar Singh, P.W. 1
deposed that on the day of incident it was
given to him by his brother, but contradicting
this fact, the I.O. (P.W. 3) has deposed that
the aforesaid Mohar Singh, P.W. 1 had given
statement to him under section 161 Cr.P.C.
that he was wearing this watch since long
and it was given to him by his father himself.
The factum of robbery as well as recovery of
aforesaid articles from the possession of
accused Nawab and Gandhi Rana renders
unreliable and, therefore, they have
1 All] Deen Bandhu (deceased) Vs. The State of U.P

451
rightly been disbelieved by the learned
trial court.

40. Since prosecution has failed to
prove its case beyond reasonable doubt,
there is no need for the Court to probe
into the defence case stated by accused in
their examination under Section 313 Cr.
P.C. where in accused, Gandhi Rana
stated that he had come to Piyara from
where he was arrested by the police to kill
him in a fake encounter, but police party
could not succeed in their effort due to
interference by some persons of public,
hence they falsely implicated him in this
case. Likewise, accused Nawab stated that
he was arrested from his house on
24.6.1983 and was brought to a jungle to
kill him in a fake police encounter, but on
account of arrival of public they could not
do so and ultimately, he was falsely
implicated in this case.

41. Para 8 of the judgment delivered
by Division Bench of this Court in State
of U.P. Vs. Ram Ajorey & others, 1991
Cr. L. J. : 2020 reads as under:-

"8- The law is well settled that appeals
from
acquittal
are
allowed
only
in
exceptional
circumstances.
It
is
an
extraordinary remedy. The appeal by
Government should be made judiciously and
only in cases where the judgment is so
clearly wrong that its maintenance would
amount to a serious miscarriage of justice or
when a principle is involved or the question
is one of great importance or of great public
importance.
The
burden
is
on
the
Government to show that the acquittal is
wrong and strong and urgent grounds must
be made out to justify interference. When
there is reasonable doubt as to the guilt of
deceased, the High Court will not interfere
nor will it interfere merely because upon
evidence the lower court might have come to
the conclusion of guilt, unless it is quite clear
that the acquittal is wrong. The High Court
will not also interfere merely because it
might itself, as an original court, have arrived
at a different conclusion. Where an appeal
against acquittal turns on the facts it would
only succeed if the judgment of acquittal is
clearly wrong and involves a miscarriage of
justice or when the trial judge has erred in
failing to draw the clear, indubitable and
irresistible inference from the facts or when
the trial courts appreciation of evidence is
vitiated by failure to take note of a very
important fact or where finding of fact is
based on an erroneous rejection of evidence.
Thus the High Court will only interfere if it is
proved without any doubt not only that the
accused is guilty, but that he has been
acquitted on unreasonable grounds. "

42. The view taken by the learned trial
court is the appropriate view in the facts,
circumstances and in the light of evidence
adduced by the prosecution, therefore, the
aforesaid impugned judgment and order
dated 4.7.1984 needs no interference by
this appellate Court.

43. In view of the above, appeal
lacks merit and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.03.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 4782 of 2010.

Deen Bandhu (deceased)...... Petitioner
Versus
The State of U.P. .............. .Respondent

Counsel for the Petitioner:
R.C. Saxena, R.C. Saxena