LAKHANversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2704 of 1987

Lakhan
                                                             .....Appellant(s)
                                   Versus
State of U.P.
                                                           .....Respondent(s)

Counsel for Appellant(s)        : , Abhay Singh Yadav, Mahender Pal
                                  Singh Yadav, Ravi Shankar Yadav
Counsel for Respondent(s)       :

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

1. Heard Sri Mohan Kumar, Advocate holding brief for Sri Ravi Shankar
Yadav, learned counsel for the appellant, and Sri Rahul Asthana, learned
A.G.A. for the State-respondent.

2. The present appeal has been preferred against the judgment and order
dated 11.11.1987 passed by V.C. Saxena VI, Additional Sessions Judge,
Kanpur Dehat, in Sessions Trial No. 157/1984 (State vs. Lakhan and others),
whereby the appellants were convicted under Section 394 I.P.C. and
sentenced to five years of rigorous imprisonment.

3. The prosecution case, in brief, is that on the intervening night of
23/24.10.1977 at about 1:00 A.M., the accused persons committed robbery
of ornaments, cash, clothes, and other articles in the house of Babu Ram,
situated in village Ishwapur, Police Station Gajner, District Kanpur Dehat.
During the commission of the aforesaid robbery, they caused injuries to
Babu Ram. The First Information Report was lodged by the complainant
Badri Prasad, brother of Babu Ram, stating that at the time of occurrence, he
was lying in his house along with his family. At about 1:00 A.M., upon
hearing the barking of dogs, he woke up and saw that three miscreants had
jumped into the house of his brother Babu Ram from the northern wall. One
miscreant was standing at the door while three others were inside the house
committing theft of valuables. On hearing the alarm raised by Babu Ram and
his wife, villagers namely Laxmi Narayan, Bharat, Kanhai, Chiranju, etc.,
rushed towards the house carrying lathis and torches. Due to the resistance,
the miscreants fled away with the looted items. Two of them, namely
                                                          CRLA No. 2704 of 1987
                                2


Chhotte Lal and Bashir, were recognized in the light of a lamp and torches.

4. On the basis of the written report, the First Information Report was
registered and G.D. entries were made. The case was investigated by S.H.O.
Shri Ram Shankar Mishra. During the course of investigation, he visited the
spot, prepared the site plan, and recorded the statements of witnesses. After
completion of the investigation, a charge-sheet was submitted against the
accused persons.

5. Charges were framed and read over to the accused, to which they pleaded
not guilty and claimed trial.

6. In order to prove its case, the prosecution examined the complainant Badri
Prasad (P.W.-1), Babu Ram (P.W.-2), Laxmi Narain (P.W.-3), Chiranju
(P.W.-4), and Rajaram (P.W.-5). The accused persons admitted the
genuineness of the documents relied upon by the prosecution; therefore,
their formal proof was dispensed with and they were exhibited.
Documentary evidence (Ext. Ka-1 to Ext. Ka-14), along with material
exhibits, are available on record and have been duly proved by the
prosecution.

7. The eyewitnesses have categorically deposed that on the night of the
occurrence, the accused persons committed robbery in the house of Babu
Ram and assaulted him, as a result of which he sustained injuries. They have
further stated that valuables belonging to Babu Ram were looted during the
incident.

8. It is also alleged by the prosecution that at the time of arrest, an illegal
country-made pistol and cartridges were recovered from the possession of
the accused persons.

9. The learned trial court, after hearing the arguments advanced by both
parties and considering the oral and documentary evidence on record,
observed that none of the prosecution witnesses deposed even a single word
regarding the recovery of illegal firearms from the possession of the accused
persons. Moreover, there is no evidence to show that the looted property was
recovered from the possession of any of the accused persons. Thus, the
charges under Section 25 of the Arms Act and Section 411 I.P.C. were not
proved by the prosecution beyond reasonable doubt. However, the trial court
recorded conviction under Section 394 I.P.C. against all the accused persons
                                                          CRLA No. 2704 of 1987
                                3


and sentenced them to undergo rigorous imprisonment for a period of five
years.

10. Aggrieved by the judgment of conviction and sentence, the present
appeal has been filed on the grounds that the conviction and sentence of the
appellants are against the weight of evidence on record and are bad in the
eyes of law. It is further contended that the sentence imposed by the learned
trial court is too severe. Therefore, it is prayed that the judgment of
conviction and sentence be set aside and the appellants be acquitted of all
charges.

11. Learned A.G.A. supported the judgment and order of conviction and
sentence.

12. The Section 394 of I.P.C. reads as under:-

           "394. Voluntarily causing hurt in committing
           robbery.—
           If any person, in committing or in attempting to
           commit robbery, voluntarily causes hurt, such person,
           and any other person jointly concerned in committing
           or attempting to commit such robbery, 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."

13. A perusal of the entire oral and documentary evidence on record reveals
that, according to the prosecution, the accused persons allegedly entered the
house of the informant's brother, namely Babu Ram, assaulted him, and
committed theft of valuables. Upon an alarm being raised, villagers reached
the spot carrying lathis and torches, whereupon the accused fled away with
the alleged stolen articles. The injury report of Babu Ram (Ext. Ka-7) has
been admitted; however, it is noteworthy that the doctor who prepared the
injury report of the injured Babu Ram was not examined during the trial.

14. It is not clearly established that the injuries found on the person of Babu
Ram were caused by the present appellants during the alleged incident. No
prosecution witness has categorically deposed that he saw the accused
persons assaulting, confining, or torturing Babu Ram in any manner.

15. On the contrary, the evidence indicates that the witnesses reached the
                                                         CRLA No. 2704 of 1987
                                 4


place of occurrence only after hearing the alarm raised by Babu Ram and his
wife. Therefore, none of them is an eyewitness to the alleged act of assault
or use of force by the accused persons.

16. The allegation of assault rests solely on the statement of the injured
witness, Babu Ram, without any independent corroboration. In the absence
of reliable medical evidence and direct or ocular testimony, the prosecution
has failed to establish that the accused persons voluntarily caused hurt
during the course of the incident.

17. Furthermore, the trial court itself disbelieved the recovery of stolen
property from the possession of the appellants by acquitting them under
Section 411 I.P.C., which further weakens the prosecution case.

18. Considering the totality of the evidence, facts, and circumstances of the
case, this Court finds that the essential ingredients of the offence under
Section 394 I.P.C. have not been proved.

19. However, from the overall evidence, it appears that some property was
taken away from the house of Babu Ram without his consent. Thus the
offence falls within the ambit of Section 379 I.P.C., which reads as under:-

           "Section 379.- Punishment for theft.-Whoever commits
           theft shall be punished with imprisonment of either
           description for a term which may extend to three
           years, or with fine, or with both."

20. In the facts of the the present case, the oral and documentary evidence on
record indicates that the accused person had gone to the house of Babu Ram
and took away some properties. It consitutes the offence of simple theft as
defined U/s 379 I.P.C.

21. Accordingly, the conviction of the appellants under Section 394 I.P.C. is
modified to one under Section 379 I.P.C. The conviction and sentence under
Section 394 I.P.C. is liable to be set aside.

22. In the result, the appeal is partly allowed. The conviction and sentence
under Section 394 I.P.C. is hereby set aside.

23. So far as the question of sentence is concerned, the record reveals that
the applicant was sent to jail after passing of the impugned order of
                                                                                              CRLA No. 2704 of 1987
                                                                    5


                                    conviction on 11.11.1987 and he was enlarged on bail vide order dated
                                    17.11.1987. He also remained in jail for a few days during trial.

                                    24. Considering the fact that the incident is about 50 years old and the
                                    appellant had undergone the ordeal of criminal proceedings for decade and
                                    in view of the long lapse of time and the facts and circumstances of the case,
                                    the appellant is sentenced to the period already undergone.

                                    25. Since the appellant Ram Das is on bail, his bail bonds are cancelled and
                                    sureties are discharged.

                                    26. Let a copy of this judgment along with the trial court record, if any, be
                                    sent forthwith to the court concerned for necessary compliance.

                                    April 24, 2026
                                    Pravesh Mishra
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad