BABUversusSTATE OF U.P

               HIGH COURT OF JUDICATURE AT ALLAHABAD

                        CRIMINAL APPEAL No. - 27 of 1982

Babu
                                                                        .....Appellant(s)
                                          Versus
State Of U.P
                                                                       .....Respondent(s)

Counsel for Appellant(s)                                           :   G.P.Dixit
Counsel for Respondent(s)                                          :   A.G.A.

Court No. - 93
                  HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. List has been revised.

2. None appears on behalf of the appellant to press this appeal.

3. Record shows that this appeal is of the year 1982 and the appellant namely Babu,
who was granted bail by the coordinate Bench of Court vide order dated 9.2.1982,
while admitting this appeal is ever since then, enjoying the liberty of bail.

4. Vide order dated 13.2.2014 a coordinate Bench of this Court had passed the
following order :-

       "Case called out in the revised list. No one is present to press the appeal
       on behalf of the appellant.

       As per the Office report dated 5.3.2013, the C.J.M. Muzaffarnagar vide
       his report dated 2.1.2013 has reported that appellant Babu son of Hemu
       has left the village Nirpuda, police station Doghat, District Baghpat 30
       years ago and no one is aware about his present address.

       C.J.M. concerned is directed to issue non bailable warrant against the said
       appellant and his sureties to ensure the presence of the appellant before
       this Court on the next date fixed.

       List on 10th March, 2014.

       The Registrar General of this Court is directed to send a certified copy of
       this order to the District Judge concerned for its compliance."

5. Thereafter, again on 23.9.2025 coordinate Bench of this Court had passed the
following order:-

       "1. List of old cases is being revised.
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      2. No one appears on behalf of the appellant.

      3. However, learned A.G.A. for the State is present.

      4. From the perusal of record, it appears that this Court vide order dated
      02.07.2014, considering the fact that appellant, Babu, is not traceable,
      directed Chief Judicial Magistrate, Muzaffarnagar to send bail bonds of
      the appellant so that legal action can be taken against the sureties.

      5. The last office report dated 23.05.2022 is available on record in which
      it is mentioned that Chief Judicial Magistrate, Baghpat has submitted his
      report regarding the living status of the appellant and submitted that the
      appellant has left his last known address and is not traceable. It is further
      mentioned in the aforesaid report that Chief Judicial Magistrate,
      Muzzafarnagar has also submitted his report that bail bonds of the
      sureties is not traceable and the entire record has been sent to the High
      Court.

      6. Office is directed to send bailable warrant to the sureties of the
      appellant as mentioned in the bail bonds available in the trial court
      record.

      7. List this case on 28.10.2025."

6. Thereafter, the office vide it's report dated 27.1.2026 has reported that the learned
Chief Judicial Magistrate, Muzaffarnagar vide letter dated 26.11.2025 (flag 'D') has
reported that bailable warrants could not be issued against the sureties as relevant bail
bonds are not available in Muzaffarnagar judgeship. Further it is reported that on
careful examination relevant bail bonds could not be found in the trial Court record.

7. To cut a long story short, I do not find any prospect of the accused-appellant- Babu,
who is absconding, being traced out and produced before this Court. It is apparent that
he is not interested in the disposal of this appeal and has abused the liberty of bail by
failing to appear before this Court despite non-bailable warrants issued against
him and his sureties to ensure the presence of the appellant before this Court. The
question which arises before us is that whether this Court is bound to wait perennially
for the accused-appellant till the accused-appellant is searched, if at all, and produced
before us and keep on adjourning the hearing of this appeal.

8. Faced with the aforesaid contingency and looking to the huge pendency of cases
before this Court, I am not inclined to pass over this appeal. Under identical
circumstances, the Apex Court, after a comprehensive analysis of previous decisions
on the issue, has distilled the legal position into six propositions in paragraph 19 of its
judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3
SCC 721 :
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                                    3

      "19.1 That the High Court cannot dismiss an appeal for non-prosecution
      simpliciter without examining the merits;

      19.2 That the Court is not bound to adjourn the matter if both the
      appellant or his counsel/lawyer are absent;

      19.3 That the court may, as a matter of prudence or indulgence, adjourn
      the matter but it is not bound to do so;"

      19.4 That it can dispose of the appeal after perusing the record and
      judgement of the trial court;

      19.5 That if the accused is in jail and cannot, on his own, come to court, it
      would be advisable to adjourn the case and fix another date to facilitate
      the appearance of the appellant-accused if his lawyer is not present, and
      if the lawyer is absent and the court deems it appropriate to appoint a
      lawyer at the State expense to assist it, nothing in law would preclude the
      court from doing so; and

      19.6 That if the case is decided on merits in the absence of the appellant,
      the higher court can remedy the situation."

7. Thus, in view of the legal position propounded by the Apex Court in the case of
K.S. Panduranga (supra), I proceed to examine this appeal on merits qua appellant-
Babu with the assistance Sri Rahul Asthana, learned A.G.A. for the State. I have
perused the lower court record and heard learned A.G.A. on behalf of the State.

8. By way of instant criminal appeal, challenge has been made to the validity and
sustainability of the Judgment and order dated 26.10.1981 passed by the learned IV
Additional District & Session Judge, Muzaffarnagar in S.T. No.322 of 1981 whereby
the appellant was convicted and sentenced under Sections 147 I.P.C. for one year R.I,
under Section 365/149 I.P.C. for three years rigorous imprisonment, under Sections
304(II)/149 for Seven year rigorous imprisonment.

9. In nutshell, Genda, the informant and husband of Smt. Shafiqan, stated that earlier
the appellant Babu had enticed away his wife from her father's house, regarding which
a report had been lodged by her father Salimuddin. Thereafter, in night of
16/17.09.1976, Genda and his wife Smt. Shafiqan were sleeping in their house, about
14 to 15 armed persons came there and forcibly abducted Smt. Shafiqan. On alarm
being raised, Sajaul and Babu, who were sleeping outside, along with other villagers
namely Latif (P.W.5), Niboli (P.W.6), Chhota and others chased the appellant with
torches. During the chase, the appellant fired upon them, as a result of which Sajaul
and Babu sustained firearm injuries and died on the spot. The assailants thereafter fled
away.
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10. On the basis of the written report a case was registered against the accused persons
under sections 147,365/149, 302/149 I.P.C. The accused denied the allegations and
claimed for fair trial.

11. The prosecution in order to prove its case examined a total of 8 witnesses as
follows:

P.W 1 Dr. A.K Gupta:- P.W.1 conducted the post-mortem examination on the dead
bodies of deceased Sajaul and Babu on 18.09.1976 and proved the post-mortem
reports (Ex. Ka-1 and Ex. Ka-2). He found multiple firearm injuries on the bodies of
the deceased and opined that the deaths were caused due to those firearm injuries.

P.W 3 Genda (Informent):- P.W.3 – Genda, the informant and husband of Smt.
Shafiqan stated that on the night of the occurrence about 14–15 miscreants along with
the appellant came to his house and forcibly took away his wife. On alarm being
raised, he along with Sajaul, Babu and other villagers chased the miscreants with
torches. During the chase the accused persons opened fire causing the deaths of Sajaul
and Babu.

P.W 4, P.W 5 & P.W 6 – Supported the prosecution version regarding the
occurrence.

P.W 7 Head constable Lajveer Singh :- proved the earlier report (Ex. Ka-6) lodged
by Salimuddin at P.S. Doghat under Section 498 IPC regarding the earlier elopement
of Smt. Shafiqan by the accused Babu.

P.W 8 D.S Lore (Investigating Officer) – Investigating Officer conducted the
investigation of the case. He prepared the inquest reports, site plan (Ex. Ka-16),
recovery memos of plain and blood-stained earth and inspected the torches of
witnesses and prepared memo (Ex. Ka-17). He also recorded the statements of the
witnesses during investigation.

12. Appellant denied the prosecution allegations and stated that he has been falsely
implicated in the present case due to enmity, that the occurrence had taken place in the
night and there was no proper source of light on the spot, therefore the identification
of the accused by the witnesses was doubtful and it is alleged that no witness had
actually seen the accused committing the murder.

13. Learned trial Judge after considering the case on its merit returned aforesaid
finding of conviction and sentenced the accused-appellants under Sections 147,
365/149 and 304 part-II/149 I.P.C and sentencing him to seven years rigorous
imprisonment.

14. Feeling aggrieved by the order of the learned trial court, the appellants have
preferred the instant criminal appeal.
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                                       5

15. Bare perusal of the record itself is indicative of fact, it is evident that the earlier the
appellant Babu had enticed away his wife from her father's house, regarding which a
report had been lodged by her father Salimuddin. Thereafter, in night of
16/17.09.1976, Genda and his wife Smt. Shafiqan were sleeping in their house, about
14 to 15 armed persons came there and forcibly abducted Smt. Shafiqan. On alarm
being raised, Sajaul and Babu, who were sleeping outside, along with other villagers
namely Latif (P.W.5), Niboli (P.W.6), Chhota and others chased the appellant with
torches. During the chase, the appellant fired upon them.

16. Learned Additional Government Advocate submits that the appellant twice
abducted the victim who was married lady by his muscle power, the said incident was
witnessed by the villagers and prosecution witnesses have supported the prosecution
version beyond doubt. Moreover, the appellant Babu has neither cooperated before
trial Court during trial and was absconded since after the occurrence nor has
cooperated in disposal of the appeal before this Court as soon after getting bail by this
Court vide order dated 9.2.1982 has again absconded and has abused the process of
law. Moreover, the guilt of the appellant has proved beyond doubt. Thus, the learned
trial Court has appreciated evidence and witnesses produced by the prosecution in
right perspective, therefore, no interference in the impugned judgement passed by the
learned trial Court is warranted by this Court.

17. Under the facts and circumstances, it cannot be said that there was any deliberate
attempt to falsely rope in the accused-appellant in this case, while allowing the real
culprit to go scot-free.

18. It is established principle of criminal jurisprudence that testimony of eye-witnesses
cannot be thrown away.

19. There is no case or circumstance either existing or emerging after contemplating
various aspects of this case qua evidence on record against the appellant.

20. The learned trial judge while considering the various aspects of the case and
various specific facets regarding the commission of the crime and the incident itself
has elaborated a well-reasoned and detailed judgment, scrutinzing and analyzing each
and every vital aspect of the case and judgment of conviction has been recorded after
proper scrutiny of the evidence and facts on record.

21. In view of above, it may be conveniently summed up that the trial Judge has taken
into consideration various aspects of the case and has appraised facts and testimony of
prosecution witnesses in right prospective and has rightly recorded finding of
conviction and sentenced the appellants for offence under Sections 147, 365/149 and
304 part-II/149 I.P.C and sentencing him to seven years rigorous imprisonment, which
is just punishment and would meet the ends of justice.

22. In view of aforesaid discussion, it is obvious that this appeal lacks merit and is
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                                    dismissed accordingly.

                                    23. The appellant is at large. The trial court is expected to leave no stone unturned for
                                    ensuring arrest of the appellant to enable him to serve out the sentence imposed by the
                                    judgment of the trial court.

                                    24. Let a copy of this order/judgment be certified to the court below forthwith for
                                    necessary information and follow up action.

                                    January 28, 2026
                                    Dev
                                                                                          (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad