Allahabad High Court
SHIV SAMPATversusSTATE OF U.P.
- Decided
- Bench
- VANI RANJAN AGRAWAL
Holding
The conviction under Section 216A IPC is unsustainable and is set aside.
Summary
The Special Judge convicted Shiv Sampat and Dan Singh under Section 216A IPC for allegedly providing food to members of the purported Hanuman dacoit gang, based on police testimony and recovered leaf plates and food items. On appeal, the High Court noted that the appeal of Shiv Sampat was abated, leaving only Dan Singh's conviction to be reviewed. The Court found that the prosecution failed to establish the existence of any dacoit gang, identify the alleged offenders, or prove that the appellants knew or intended to harbour such offenders. The police witnesses' statements were deemed unreliable and lacked independent corroboration, and the material evidence was considered insufficient. Consequently, the Court held that the essential ingredients of Section 216A were not proved beyond reasonable doubt. The conviction and three‑year rigorous imprisonment were set aside and the appeal was allowed.
Issues considered
- Whether the appellants had knowledge and intention to harbour dacoits as required under Section 216A IPC
- Whether the prosecution established the existence of a dacoit gang and identified the alleged offenders
Legislation cited
- Indian Penal Code — s. 216, 216A
Subjects
- harbouring
- dacoity
- Section 216 IPC
- Section 216A IPC
- evidence
- reasonable doubt
- conviction reversal
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1732 of 1987
Shiv Sampat
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : , Sunil Dubey
Counsel for Respondent(s) :
Court No. - 93
HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. This appeal has been preferred by the appellants against the conviction
and sentence recorded vide judgment and order dated 22.06.1987 passed by
Special Judge (D.A.A), Banda in Session Trial No.175 of 1986, convicting
and sentencing the appellants under Section 216A I.P.C. to three years
rigorous imprisonment each.
2. Vide order dated 13.11.2025, the present appeal stands abated qua
appellant No.1 Shiv Sampat and now the appeal only survives with respect
to the appellant no.2 namely Dan Singh.
3. The prosecution case, in brief, is that on 05.07.1986, the S.H.O., K.K.
Shukla, along with other police personnel, proceeded in a government jeep
in search of dacoits belonging to the Hanuman Gang. The police party was
informed by an informer that some dacoits were staying in a hilly forest. On
the basis of the information received, the police party reached a hilly forest
area near a small embankment, where it was alleged that the accused
persons, namely Shiv Sampat and Dan Singh, were serving food to the
dacoits. The police party, after concealing themselves, allegedly saw 10
miscreants, and the present appellants were serving them food. Upon being
challenged, the miscreants fled away, while the appellants were apprehended
at the spot.
4. From the place of occurrence, ten leaf plates (pattal) were recovered,
along with one basket containing puri and sabji. The First Information
Report was registered on the basis of the recovery memo, and after
investigation, a charge sheet was submitted. The prosecution, in order to
prove its case, examined as many as four witnesses: PW1 Sub-Inspector
Krishna Kumar Shukla, PW2 Constable Krishna Dev Mishra, PW3 S.I.
Rameshwar Shukla, and PW4 S.I. Surendra Narayan Pandey, the
Investigating Officer. Documentary evidence, namely the recovery memo
(Ext. Ka-1), chick FIR (Ext. Ka-2), site plan (Ext. Ka-3), charge sheet (Ext.
CRLA No. 1732 of 1987
2
Ka-4), and copy of GD (Ext. Ka-5), are available on record. The trial court,
after considering the evidence, convicted the appellants under Section 216A
IPC, holding that they were assisting the dacoits by providing them food.
5. Learned counsel for appellant no. 2 submitted that there is no evidence to
prove the existence of any gang of dacoits, such as the Hanuman Gang. The
prosecution failed to establish that the alleged persons were proclaimed
offenders or dacoits. It was further argued that the testimony of the witnesses
is unreliable, as PW1, K.K. Shukla (S.I.), himself admitted that he had never
charge-sheeted any such gang and did not personally know Sitaram of the
Hanuman Gang. No independent witness was examined. Even basic
circumstances raise doubt, as no water utensils were found at the alleged
spot, and the existence of a distant water source about two furlongs away
appears improbable. It was also submitted that the appellants had no criminal
history to their credit.
6. Learned A.G.A. supported the judgment of conviction and argued that
appellant no. 2 was caught red-handed while serving food, and the recovery
of food articles corroborates the prosecution version.
7. In support of his contention, he has referred Section 216 IPC which read
as under:-
"216. Harbouring offender who has escaped from
custody or whose apprehension has been ordered
.—Whenever any person convicted of a charged with
an offence, being in lawful custody for that offence,
escapes from such custody,
or whenever a public servant, in the exercise of the
lawful powers of such public servant, orders a certain
person to be apprehended for an offence, whoever,
knowing of such escape or order for apprehension,
harbours or conceals that person with the intention of
preventing him from being apprehended, shall be
punished in the manner following, that is to say,
if a capital offence.— if the offence for which the
person was in custody or is ordered to be
apprehended is punishable with death, he shall be
punished with imprisonment of either description for a
term which may extend to seven years, and shall also
be liable to fine;
if punishable with imprisonment for life, or with
imprisonment.—if the offence is punishable with
3[imprisonment for life] or imprisonment for ten
years, he shall be punished with imprisonment of
CRLA No. 1732 of 1987
3
either description for a term which may extend to
three years, with or without fine;
and if the offence is punishable with imprisonment
which may extend to one year and not to ten years, he
shall be punished with imprisonment of the description
provided for the offence for a term which may extend
to one-fourth part of the longest term of the
imprisonment provided for such offence, or with fine,
or with both."
8. It requires: (i) the existence of an offender who has committed a crime;
(ii) knowledge or reason to believe that such person is an offender; (iii)
harbouring or assisting such offender; and (iv) mere suspicion or presence is
not sufficient—knowledge and intention must be clearly established.
9. Upon careful scrutiny of the record, this Court finds that the prosecution
has failed to establish that any such gang, like the Hanuman Gang, exists.
P.W.-1, Mr. K.K. Shukla, himself admitted that he had no knowledge
regarding the Hanuman Gang. The alleged miscreants were neither identified
nor apprehended at the spot. No evidence was led to prove that the so-called
miscreants were dacoits or wanted in any criminal case. There is also no
evidence regarding the criminal antecedents of the alleged associate of
appellant no. 1, namely Shiv Sampat. No material is available on record to
show that Sitaram, allegedly belonging to the Hanuman Gang, was present at
the spot.
10. It has not been established that the appellants had knowledge or reason to
believe that such persons were dacoits, or that the appellants intentionally
harboured them.
11. Upon consideration of the evidence available on record, this Court finds
that the very foundation of the prosecution case is inherently weak and
legally unsustainable.
12. It is an admitted position that no person was apprehended or identified as
a dacoit at the time of the alleged incident. The alleged offenders, whom the
appellants are said to have harboured, remain unidentified and unverified.
13. There is no evidence on record to establish that the said persons were, in
fact, offenders. The prosecution has failed to prove any prior criminal
antecedents of such persons. It has also not been shown that any criminal
history was ever recorded against them.
14. In the absence of motive, the essential ingredient of harbouring, which
CRLA No. 1732 of 1987
4
attracts Section 216 IPC, is missing. The case solely rests on the evidence of
police witnesses, and there is no independent corroboration. While the
testimony of police officers cannot be discarded merely on that ground, it
must still inspire confidence.
15. In the present case, the evidence does not inspire confidence in the
absence of foundational facts. The recovery of alleged food items and leaf
plates, in the absence of any connecting evidence, is too fragile and
inconclusive to establish the offence.
16. The inconsistencies regarding recovery, including the absence of basic
items such as water containers, further weaken the prosecution case. It is a
settled principle of criminal jurisprudence that suspicion, however strong,
cannot take the place of proof.
17. The prosecution has failed to prove its case beyond reasonable doubt.
18. In view of the above discussion, this Court is of the considered opinion
that the conviction of appellant no.2 under Section 216A IPC is
unsustainable in the eyes of law and suffers from serious infirmities.
19. Accordingly, the appeal deserves to be allowed.
20. In the result, the conviction and sentence recorded vide judgment and
order dated 22.06.1987 are set aside. The appeal is allowed.
21. A copy of this judgment, along with the trial court record, be sent
forthwith to the learned trial court for necessary compliance.
February 17, 2026
Pravesh Mishra
(Mrs. Vani Ranjan Agrawal,J.)
Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad
Checking your session…