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2026 DAILYLAW 4534 (ALL)

Ramesh v. State of U. P.

2026-03-16

Sanjiv Kumar

body2026
JUDGMENT : SANJIV KUMAR, J. 1. This criminal appeal, under Section 374 (2) Cr.P.C., has been filed by the appellant against the judgment and order dated 23.09.1988 passed by Special Judge (Dacoity Affected Area), Kanpur Dehat in Special Sessions Trial No.123 of 1987 (State vs. Ramesh), under Section 412 I.P.C., by which the appellant was convicted under Section 412 I.P.C. and sentenced to undergo three years’ rigorous imprisonment. 2. The brief facts of the prosecution case are that one Ram Nath, son of Baau Lal Katiyar, resident of village Nimndapur, Hamlet of Village Ursan, under Police Station Derapur, District Kanpur Dehat, submitted a written application (Tehrir) (Ext. Ka-5) at Police Station Derapur, District Kanpur Dehat stating therein that on 28.03.1987 at about 9:00 p.m., 9-10 miscreants, armed with lathi, danda, axe, rifle, gun and pistols entered in his house from western side of the village and assaulted his wife, Bhuri Devi. At that time, the first informant and his son, Ram Saran, returned to his home to have their meal then one of the miscreants, who was standing at the door, fired at them. The first informant and his son raised an alarm, there upon co-villagers, namely Shri Ram, Ram Prakash, Kripa Shanker, Sunder Lal, Mahendra Kumar, Loknath, Ashok Kumar, Sadafal, Shyam Manohar, Lalman, Pradeep, Gayaprasad, Sahab Lal, Ram Kumar, Awadesh Kumar and Kamlesh, along with others reached at the spot carrying lathi, danda, torches and licensed guns. Awadesh Kumar set at fire a heap of straw near the house, while lantern were lit in the courtyard and at the door. Two miscreants climbed onto the roof through the staircase, three remained standing at the door armed with guns and the remaining miscreants committed dacoity inside the house. The dacoits looted the informant’s licensed D.B.B.L. Gun 12 bore No. 72944 alongwith 35 cartridges and a license No. 8499 and also snatched Kamlesh’s watch. The informant and other villagers identified the dacoits in the light of the torches and the lantern. Some miscreants were tall, some were short and some were of average height. They were wearing pants, shirts and vests. The miscreants committed the dacoity for about half an hour and looted gold and silver ornaments, a banarasi saree, a woollen shawl, Rs. 9,500/- in cash and Kamlesh’s watch. 3. Some miscreants were tall, some were short and some were of average height. They were wearing pants, shirts and vests. The miscreants committed the dacoity for about half an hour and looted gold and silver ornaments, a banarasi saree, a woollen shawl, Rs. 9,500/- in cash and Kamlesh’s watch. 3. Upon receiving the aforesaid information, an FIR bearing Case Crime No. 57 of 1987, under Sections 395 and 397 I.P.C. was lodged against 9-10 dacoits and the investigation commenced. 4. The investigation was conducted by S.I. Ramesh Yadav. He recorded the statements of first informant and other witnesses. He visited the place of occurrence, collected ash from the heap of straw and prepared its recovery memo. He also recovered an empty cartridge from the spot and prepared its recovery memo. He inspected two lanterns and handed them over in supurdgi (custody) after preparing the memo and prepared the site-plan of the place of occurrence. 5 . During the course of investigation, certain suspected persons were apprehended and their test identification parade was conducted, however, the first informant and other witnesses failed to identify them. On the intervening night of 24/25.06.1987, S.O. Chakra Pal Singh, along with other police personnel, while being engaged in routine patrolling duty, reached near village Mulukpur under Police Station Sikandra, District Kanpur Dehat, saw a suspicious person carrying a gun who opened fire at the police party, upon being chased by police personnel. The policemen, however, narrowly escaped unhurt. He was apprehended at about 2:00 A.M. and a factory-made double-barrel gun was recovered from his possession with an empty cartridge in its barrel. The serial number on the gun had been erased and could not be deciphered. Upon inquiry, the apprehended person disclosed his name as Ramesh and stated that he had purchased the said gun from Ram Pal @ Mama, resident of village Raar, Police Station Ghatampur. He further stated that Ram Pal @ Mama had told him that the gun had been looted during a dacoity in village Nim ndapur, under Police Station Derapur. The recovered gun was sealed at the spot and a recovery memo was duly prepared. 6. After completion of the investigation, charge-sheet under Sections 395, 397 and 412 I.P.C. was filed against the appellant. The concerned Court took cognizance of the offence and summoned the appellant. The recovered gun was sealed at the spot and a recovery memo was duly prepared. 6. After completion of the investigation, charge-sheet under Sections 395, 397 and 412 I.P.C. was filed against the appellant. The concerned Court took cognizance of the offence and summoned the appellant. Upon his appearance, copies of the relevant prosecution papers were furnished to him under Section 207 Cr.P.C. and thereafter, charge under Section 412 I.P.C. was framed against him, to which he pleaded not guilty and claimed to be tried. 7. The prosecution has examined four witnesses to prove its case, namely, P.W.1, Ram Nath (the first informant), P.W.2, S.O. Chandra Pal Singh, P.W.3, Constable, Manik Chand and P.W.4, I.O. Ramesh Yadav. 8. P.W.1, Ram Nath, has stated that on 28.03.1987, at about 8:30-9:00 p.m., he, alongwith his wife, Bhuri Devi and his son, Ram Saran, was inside his house when dacoits entered his house and committed dacoity. The dacoits also opened fire during the incident. Upon hearing alarm raised by the first informant and his family members, Shyam Manohar, Gaya Prasad, Mahendra and others reached at the spot. Out of them, Sri Ram and Ram Manohar were carrying licensed guns, while the others were carrying torches, lathis, and dandas in their hands. The dacoits had looted his licensed double-barrel gun bearing No.72944 alongwith other articles. He lodged the First Information Report, which he proved as Ext. Ka-1. 9. In cross-examination, P.W.1, Ram Nath identified the (looted) gun by its number and butt and cartridges which were produced before the Court during his examination and stated that guns with similar make and butt are also available. 10. P.W.2, Chandra Pal Singh (S.O.), has stated that while on patrolling duty, during the intervening night of 24/25.06.1987 at about 2:00 a.m., he, alongwith other police personnel, saw the accused carrying a gun in a suspicious condition. When challenged, the accused opened fire at the police party while attempting to flee, however, the police party escaped unhurt. Thereafter, the accused was apprehended and found in possession of a country-made gun, the serial number of which appeared to have been erased. The accused stated that he had purchased the gun from Ram Pal @ Mama, who had told him that he had looted it during a dacoity in Village Nimndapur, Police Station Derapur. P.W.2 further stated that he sealed the gun at the spot and prepared its recovery memo. The accused stated that he had purchased the gun from Ram Pal @ Mama, who had told him that he had looted it during a dacoity in Village Nimndapur, Police Station Derapur. P.W.2 further stated that he sealed the gun at the spot and prepared its recovery memo. The original recovery memo is on record in Sessions Trial No. 155 of 1987 (State vs. Ramesh) under Section 307 I.P.C., and a true copy thereof has been proved as Ext Ka-2. 11. In cross-examination, P.W.2 stated that on 24.06.1987 he left the police station at about 3:00 or 4:00 P.M., and his departure (rawangi) was duly entered in General Diary of the police station. He further stated that they saw the accused from a distance of about 90-95 steps, and upon seeing the police party, the accused tried to run towards the southern side of the village. He admitted that no public witness was present at the time of the alleged incident. 12. P.W.3, Constable Manik Chand, is the other police personnel who accompanied P.W.2, Chandra Pal Singh, during patrolling duty and has stated that in his presence, the accused was arrested along with a double- barrel gun. Besides the gun, six live cartridges and one empty cartridge were also recovered from the accused. 13. In his cross-examination, P.W.3 has stated that they proceeded from the police station at about 3-4 p.m. and visited several villagers before reaching the place where the accused was arrested. He further stated that no public witness were called at the time of conducting the personal search of the accused. 14. P.W.4, S.I. Ramesh Yadav, the Investigating Officer of the case, has stated about the investigation conducted by him as well as by his predecessor, S.I. Ram Saran Katiyar. He proved the charge-sheet (Ext. Ka-3), the chik FIR (Ext. Ka-5), and the site-plan (Ext. Ka-4). In his cross-examination, he has stated that he did not prepare the site-plan of the place of recovery, nor did he record the statement of the first informant. 15. After the closure of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C., in which he denied the prosecution case and stated that the witnesses have deposed against him false statement. He further stated that he was apprehended by the police from his house. 16. The accused has not adduced any evidence in his defence. 17. After the closure of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C., in which he denied the prosecution case and stated that the witnesses have deposed against him false statement. He further stated that he was apprehended by the police from his house. 16. The accused has not adduced any evidence in his defence. 17. After hearing the arguments advanced by both the parties and upon perusing the evidence on record, the Trial Court found that the prosecution had been able to prove its case beyond reasonable doubt. Consequently, the accused/appellant was convicted and sentenced under Section 412 I.P.C., for the term as stated above. 18. I have heard Ms. Bahita Upadhyay, learned Amicus Curiae for the appellant and learned A.G.A. for the State and perused the evidence on record. 19. It is submitted on behalf of the learned Counsel for the appellant that the entire prosecution story is false and concocted. A false recovery has been planted against the appellant. He was picked up from his house and falsely implicated in the present case. There are no independent public witnesses of the alleged recovery. The prosecution has not produced Rawangi G.D. to prove when the police party departed from the police station and reached the place of occurrence. It is further submitted that the alleged recovered gun could not be connected with the aforesaid dacoity due to absence of serial number, therefore, there was no evidence against the appellant. It is argued that the learned Trial Court has convicted and sentenced the appellant merely on conjectures and surmises. Hence, the impugned judgment and order are liable to be set aside. 20. Per contra, learned A.G.A. has submitted that the prosecution has successfully proved its case beyond reasonable doubt. The witnesses have supported the alleged recovery made from the possession of the appellant. The aforesaid country-made gun has been connected with the dacoity committed at the house of the first informant. It is further submitted that the appellant has failed to satisfactorily explain under what authority or in what capacity he was carrying the said firearm with him. The alleged recovery took place suddenly, therefore, the absence of any independent public witness does not adversely affect the prosecution case. Hence, the present appeal has no merit and is liable to be dismissed. 21. The alleged recovery took place suddenly, therefore, the absence of any independent public witness does not adversely affect the prosecution case. Hence, the present appeal has no merit and is liable to be dismissed. 21. The charge against the appellant is that, in the intervening night of 24/25.06.1987 at about 2:00 a.m., a factory-made DBBL gun bearing No. 72944 was recovered from his possession by the police near Gair Abadi, Village Mulukpur, Police Station Sikandra, District Kanpur Dehat. The said DBBL gun is alleged to have been looted during a dacoity committed at informant Ram Nath’s house, on 28.03.1987 at about 9:00 p.m. in Village Urshan, Police Station Derapur, District Kanpur Dehat. 22. The appellant has been charged with an offence punishable under Section 412 I.P.C., which reads as follows:– 412. “Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 23. The above provision shows that to prove the offence under this Section, the prosecution must establish the following ingredients: (i) That the looted property was recovered from the possession of the accused and that he had reason to believe that the property was stolen. (ii) That the accused had reason to believe that the property had been transferred to him as a result of the commission of dacoity. (iii) That he received the property from a person whom he had reason to believe was a member of a gang of dacoits. 24. In this regard, Section 114, Illustration (a), of the Indian Evidence Act, 1872 is relevant, which reads as follows: “114. (a) The Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” 25. (a) The Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” 25. The aforesaid provision provides that if the looted property is recovered from a person’s possession soon after the commission of a dacoity, a presumption shall arise that such person was in possession of the looted property with reason to believe that it had been transferred to him as a result of the commission of dacoity. 26. In view of the above legal position, in the present case the prosecution is required to prove the following ingredients to establish its case that the appellant committed the offence punishable under Section 412 I.P.C.:- (i) That on the intervening night of 24/25.06.1987 at about 2:00 a.m., the appellant was arrested near Village Mulukpur, Police Station Sikandra, District Kanpur Dehat, and a factory-made DBBL Gun No. 72944 was recovered from his possession; (ii) That the appellant had reason to believe that the said DBBL gun had been looted in the commission of a dacoity; (iii) That the appellant had reason to believe that he had received the said DBBL gun from a person named Rampal @ Mama, whom he knew or had reason to believe to be a member of a gang of dacoits. 27. Point Nos. (i) and (ii) are interconnected. In this regard, it is the case of the prosecution that P.W.2, S.O. Chandra Pal Singh, along with other police personnel, proceeded from Police Station Sikandra for night patrolling duty. When the police party reached the place of recovery near Village Mulukpur, within the jurisdiction of Police Station Sikandra, District Kanpur Dehat, the appellant was apprehended and the alleged looted DBBL gun was recovered from his possession. 28. In support of the said recovery, the prosecution has examined P.W.2, S.O. Chandra Pal Singh and P.W.3, Constable Manik Chand. According to the prosecution, both the aforesaid witnesses were members of the police party on night patrolling duty on the alleged date, time and place of occurrence. 29. From the perusal of the testimony of both these witnesses, it appears that they have not mentioned the rawangi G.D. number or the date and time when they proceeded from Police Station Sikandara for night patrolling duty. 29. From the perusal of the testimony of both these witnesses, it appears that they have not mentioned the rawangi G.D. number or the date and time when they proceeded from Police Station Sikandara for night patrolling duty. The prosecution has also not filed the rawangi G.D. of the concerned police personnel, on record, to show the date and time at which the left Police Station Sikandara for night patrolling duty. 30. In Mathura Prasad vs. State of U.P. , 2005 (1) U.P. Criminal Rulings, page 401 , a co-ordinate Bench of this Court has held that the Rawangi G.D. is one of the most important documents which proves the date and time at which the police party leaves the police station on duty. In absence of the Rawangi G.D., departure of the police party cannot be established at the place of occurrence. 31. In view of the above, the absence of Rawangi G.D. as well as the failure of P.W.-2 and P.W.-3 to mention the date, time and Rawangi G.D. number, raises serious doubt regarding the departure of the concerned police personnel from the Police Station and their presence at the place of occurrence. 32. According to P.W.2, after the appellant was apprehended at the place of recovery, a fard baramdagi was prepared in the light of a torch. He further stated that the original fard baramdagi is on the record of Sessions Trial No. 155 of 1987, and its true copy is on record of this case, which the witness has proved as Ext. Ka-2. 33. A perusal of Ext. Ka-2 shows that it cannot be termed as a true copy of the original fard baramdagi, as it is merely a carbon copy of a handwritten copy, by a person who allegedly prepard it from original fard baramadgi. It also does not disclose the date on which the said copy was prepared. P.W.2 has not stated that the said copy was prepared before him or at his dictation. The writer of this carbon copy has not been examined by the prosecution to prove that he had copied the same from original fard baramdagi and it is the true copy thereof. P.W.2 has not stated that the said copy was prepared before him or at his dictation. The writer of this carbon copy has not been examined by the prosecution to prove that he had copied the same from original fard baramdagi and it is the true copy thereof. The said carbon copy does not bear the signature(s) of the police party or the accused and also the name of person who prepared it and in the absence of examination of the writer of this carbon copy, it cannot be termed as a true copy of the original fard baramdagi which was kept in record of Sessions Trial No. 155 of 1987, and accordingly, it is not admissible in evidence, accordingly, the very basis of the prosecution case becomes doubtful. 34. Now, if for the sake of argument, it is admitted that the appellant was apprehended by the police at the place of recovery and a DBBL gun was recovered from his possession, the question is whether the said gun was the same which was looted during the dacoity committed at the house of the first informant. 35 . In this regard, the recitals in the copy of the fard baramdagi (Ext. Ka- 2) disclose that the gun number of the alleged recovered DBBL gun was not visible, as it had been erased. Since the recovered gun bore no number, it was the duty of the prosecution to prove, by other evidence, that it was the same gun which had been looted during the dacoity committed at the house of the informant. In this regard, the prosecution has adduced no other evidence except relying upon the alleged confessional statement of the appellant, which he allegedly made before the police at the time of his arrest. In the said statement, it is mentioned that the serial number of the gun was 72944, which he had erased and thus the prosecution has attempted to connect the gun with the alleged dacoity. The aforesaid statement of the accused is highly doubtful and cannot be relied upon, as it is very difficult for a person to remember the serial number of a purchased gun after such a long time, particularly when he himself had erased it to conceal the identity of the gun. It is not common for a person to remember the serial number of a gun. It is not common for a person to remember the serial number of a gun. Besides this, according to the prosecution, the aforesaid confessional statement of the appellant was made before the police while he was in police custody, therefore Sections 25, 26 and 27 of the Indian Evidence Act are attracted. A look at these provisions is as follows: “Section 25. Confession to police-officer not to be proved.- No confession made to a police-officer, shall be proved as against a person accused of any offence. Section 26. Confession by accused while in custody of police not to be proved against him. – No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Section 27. How much of information received from accused may be proved. – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 36. With regard to the admissibility of the statement of an accused in police custody, the Hon’ble Supreme Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 6 00 has observed as under: “121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.” 37 . A latest case on this point is that of Pulukuri Kottaya and Others vs. Emperor AIR (34) 1947 Privy Council 67 where in at Para 10 it was observed that : “10. It is fallacious to treat the “ fact discovered” within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “ I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago, It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words he added “ with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” 38. But if to the statement the words he added “ with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” 38. In view of the above legal position, the statement of the appellant in police custody is not admissible in evidence, as it has not led to any recovery or discovery. 39. Similarly, so far as point No. (iii) is concerned, the statement of the appellant made in police custody regarding the purchase of the gun from another person, namely Rampal @ Mama and that he knew it to be a looted gun, is also not admissible in evidence, as it relates to the past use or past history of the gun and has not led to the recovery of the gun. Besides this, there is no disclosure statement of the appellant recorded by the Investigating Officer. Surprisingly, the prosecution has neither interrogated the said Rampal @ Mama, from whom the appellant is alleged to have purchased the aforesaid gun, nor made him an accused for the offence of committing dacoity. This also creates doubt as to whether this was the same gun which was looted from the house of the first informant during the dacoity. It further weakens the prosecution case that the appellant knew that the gun was looted in the dacoity and that Rampal @ Mama was a member of the gang of dacoits. Thus, the essential ingredients required to constitute an offence under Section 412 I.P.C. are neither made out nor proved by the prosecution. 40. Here, the statement of P.W.1, Ram Nath, is also relevant, who has stated on oath that about 9-10 dacoits committed dacoity in his house and looted his licensed double-barrel gun No.72944 alongwith other articles. During his examination before the Court, the alleged gun was produced by the prosecution and he stated that he has identified the gun on the basis of the gun number engraved on it and also from the butt of the gun. He also stated that guns having similar kinds of butts are available. The above statement of P.W.1 is not reliable because it is the case of the prosecution that the gun recovered from the possession of the appellant had no gun number, as the same had been erased. He also stated that guns having similar kinds of butts are available. The above statement of P.W.1 is not reliable because it is the case of the prosecution that the gun recovered from the possession of the appellant had no gun number, as the same had been erased. Therefore, there was no reason for the first informant to identify the alleged gun, before the Court, on the basis of the gun number. 41. Beside this, the alleged recovery took place after about three months from the date of the dacoity and as held earlier it is not proved that this is the same gun which was looted in dacoity committed in the house of the first informant, therefore, it cannot be said that the gun was recovered from the possession of the appellant soon after the commission of the dacoity. Consequently, no presumption under Section 114 of the Evidence Act, Illustration (a) can be raised against him. 42. As the prosecution has failed to prove that the aforesaid DBBL gun was the same gun which was looted in the dacoity committed in the house of the first informant, the said gun cannot be termed as looted property in connection with the commission of a dacoity. The prosecution has also not proved that Rampal @ Mama was a member of the gang of dacoits who committed dacoity in the house of the first informant. 43. In view of the above, I come to the conclusion that the prosecution has failed to prove that the same gun, which looted in dacoity in the house of the first informant, was recovered from the appellant Ramesh. Prosecution has also failed to prove that alleged recovered gun was the same which was looted from the house of the first informant. Prosecution also failed to prove that the appellant had the aforesaid gun in his possession with reason to believe that the gun was looted or that it had been transferred to him on account of the commission of dacoity, or that Rampal @ Mama was a member of the gang of dacoits who committed dacoity in the house of the first informant. Therefore, charge against the appellant under Section 412 I.P.C. is not proved beyond reasonable doubt. 44. Therefore, charge against the appellant under Section 412 I.P.C. is not proved beyond reasonable doubt. 44. In view of the above, the findings of the Trial Court with regard to the conviction and sentence of the appellant is not sustainable, as they are based on an incorrect appreciation of the evidence. 45 . Therefore, the instant appeal is allowed and the impugned judgment and order dated 23.09.1988 of the Trial Court is set aside. The appellant Ramesh is acquitted of the offence punishable under Section 412 IPC. 46. The appellant is on bail. His bail bonds and personal bonds are cancelled and the sureties are discharged of their liability. The appellant need not surrender. 47 . The appellant shall execute a personal bond in the sum of Rs.25,000/- under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437-A of the Code of Criminal Procedure, 1973) for his appearance, in the event of an appeal being preferred against his acquittal. 48 . Let a copy of this order be sent to the learned Trial Court concerned alongwith the Trial Court record for information and necessary compliance.