KATTU AND ANOTHERversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2741 of 1983

Kattu And Another
                                                                     .....Appellant(s)
                                       Versus
State of U.P.
                                                                   .....Respondent(s)

Counsel for Appellant(s)                                  :     Amar Saran
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. Office report dated 18.2.2026 shows that in compliance of Hon'ble Court's
order dated 14.1.2026, learned Chief Judicial Magistrate, Mirzapur vide
letter dated 18.2.2026 (Flag 'X') has reported that the appellant no.1 Kattu
has died 24 years ago.

4. In view of the above office report this appeal stands abated qua
appellant no.1 Kattu. Now this appeal is surviving only with respect to
appellant no.2 namely Kamta @ Tuar.

5. Record shows that this appeal is of the year 1983 and the appellant no.2
namely Kamta @ Tuar, who was granted bail by coordinate Bench of this
Court vide order dated 15.11.1983, while admitting this appeal is ever since
then, enjoying the liberty of bail.

6. Vide order dated 19.9.2016 a coordinate Bench of this Court had passed
the following order :-

     "Since the record has already been received before this Court, therefore,
     office is directed to send the relevant paper to the court below for tracing
     out sureties furnished by the appellant no.2 Kamta alias Tuar to the court
     of Chief Judicial Magistrate, Varanasi for initiation of the proceeding
     under section 446 Cr.P.C. against the sureties.

     Office is directed to send the relevant record within period of one week.
                                                              CRLA No. 2741 of 1983
                                  2

     Let the matter be listed in the week commencing 7.11.2016."

7. Office report dated 6.12.2016 shows that in compliance of Hon'ble Court's
orders dated 7.1.2016 and 19.9.2016 a letter (Flag 'छ') from learned Chief
Judicial Magistrate, Varanasi has been received wherein it has been reported
that appellant Kanta @ Tuar accused Kanta @ Tuar has been missing since
he went to Ghazipur on 4.1.1992 in connection with a case at Ghazipur and
since then he is missing. His sureties namely Baudam has died and Gulabi
Devi presented herself and prayed that accused Kanta @ Tuar is not
traceable and therefore, she is agree to deposit a security amount of Rs.
3,000/-. The security amount was deposited by the surety and she has been
released from the security obligation.

8. Thereafter, again vide order dated 14.1.2026 a coordinate Bench of this
Court had passed the following order :-

     "1. The appeal is taken up for hearing today. However, the whereabouts
     of the appellants namely, Kattu, son of Sunder, resident of Village-
     Vyaspur, P.S. Kachwa, District-Mirzapur and Kamta alias Tuar, son of
     Bansi, resident of Village-Birdopur, P.S. Bhelupur, District-Varanasi are
     stated to be not traceable as per the report submitted by learned Chief
     Judicial Magistrate, dated 7.11.2016 and 19.9.2016 respectively.

     2. Under the circumstances, the Circle Officer, Incharge of Police
     Station-Bhelupur, District-Varanasi and Circle Officer, Incharge Police
     Station-Kachwa, District-Mirzapur are directed to trace out the
     appellants-accused and submit a personal affidavit with regard to the
     efforts made by the Circle Officers of district Varanasi and Mirzapur
     respectively by the next date of listing.

     3. List this case before appropriate Bench on 19.02.2026."

9. Pursuant order dated 14.1.2026, office has submitted a report dated
18.2.2026 that in compliance of Hon'ble Court's order dated 14.1.2026, the
learned Chief Judicial Magistrate, Mirzapur vide letter dated 18.2.2026 has
reported that appellant no.1 namely Kattu has died 24 years ago and report
from the learned Chief Judicial Magistrate, Varanasi is awaited with regard
to appellant no.2 Kamta @ Tuar.

10. To cut a long story short, I do not find any prospect of the accused-
appellant No.2 - Kamta @ Tuar, who is absconding, being traced out and
produced before this Court. It is apparent that he is not interested in the
                                                                CRLA No. 2741 of 1983
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disposal of this appeal and has abused the liberty of bail by failing to appear
before this Court despite rigorous efforts, as aforesaid, made by this
Court. The question which arises before this Court 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.

11. 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 :

     "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."

12. 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 No.2- Kamta @ Tuar with the assistance of 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.

13. By way of instant criminal appeal, challenge has been made to the
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validity and sustainability of the Judgment and order dated 11.11.1983
passed by Additional Sessions Judge, Varanasi, In Session Trial No.94 of
1982, convicting and sentencing the appellants Kattu and Kamata alias Tuar
to undergo four years R.I. for each of the offenses under Sections 399 and
402 I.P.C. and further sentenced each of them to six months R.I. for the
offense under Section 25 Arms Act (All sentences shall run concurrently).

14. The prosecution case is detailed in the F.I.R Exhibit ka-2 in terms of
arrest and recovery memo as Exhibit ka-1 and it follows that on 21.8.1979,
Sub-Inspector Faiyaz Ahmad received information from an informer that a
gang of dacoits was to assemble at 11 in the night near the well of Cheddi
Pandit in village Marauli for committing dacoity at Mishra petrol pump in
Churamanpur. On this, the Sub-Inspector along with the police force and
few public witnesses assembled at Maratha Pokhara and divided them into
three parties. At about 11:45 pm one of the dacoits (along with five more)
initiated the loot on which the Sub-Inspector challenged the dacoits by firing
V.L.P. Subsequently, all three police parties succeeded in making arrest of
the accused Kattu and Kamata @ Tuar along with Shabbir. The arrested
dacoits were subjected to search on the spot and from their possession a
country made pistol alongwith four live cartridges and a torch were
recovered from Shabbir, one Rampuri knife having blade of 9 anguls was
recovered from the possession of Kamata @ Tuar, the search of accused
Kattu yielded a Karauli with blade of 10 anguls in length. The said recovered
articles were sealed and fard Exhibit ka-1 was prepared by Sub-Inspector
Nagina Prasad.

15. The prosecution examined five witnesses as follows:

1. P.W.1 Babu Lal was a public witness who was taken to the Talab of
Marauli and has completely supported the prosecution's version. He
identified in court various articles recovered from the accused persons and
has proved the recovery memo.

2. P.W.2 Sri Sita Ram (S.I. Maruadih) has also supported the prosecution
case and that a country made pistol Ex. 1 and live cartridges Exhibit Ka 2 to
5 were recovered from Shabbir, Karauli Ex. 6 was recovered from the
possession of Kattu and knife Exhibit Ka 7 was found from the possession
of Kamata.

3. P.W.3 Ghanshyam was a resident of Charamanpur and a public witness
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has stated that he was collected by a constable at 9:30 pm and he has fully
supported the prosecution story. He has further stated that the property was
sealed on the spot and a fard was prepared on which he puts his signature.

4. P.W. 4 Sub-Inspector Faiyaz Ahmad khan was the Inspector In-charge
of P.S. Maruadih and stated that on the information received by the
informant, he collected the police force and apprehended the accused
persons in order to catch hold of them, by dividing the forces into three
parties. He also proved the G.D. report No. 46 copy of which is Exhibit ka-
4.

5. Sri Nageshwar Tiwari( S.H.O Meruadih and I.O of the case) has stated
that he recorded the statements of the witnesses and the accused; made site
inspection and prepared the site plan as Exhibit ka-5 and then submitted
chargesheets against the accused persons along with Shabbir as Exhibit 6 to
9.

16. The accused denied the allegations and stated that they have been falsely
implicated out of enmity and have not produced any defence. None of the
public witnesses has stated that they overheard the conversation of the
accused to which the trial court denied stating the the police force needs to
be attentive to such details and public witnesses are not to be expected to be
so aware.

17. Learned trial Judge after considering the case on its merit returned
aforesaid finding of conviction and sentenced the accused-appellants under
Sections 399 and 402 I.P.C and sentencing them to three years rigorous
imprisonment.

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

19. Bare perusal of the record itself is indicative of fact, it is evident that
the Sub-Inspector Faiyaz Ahmad received information from an informer that
a gang of dacoits was to assemble at 11 in the night near the well of Cheddi
Pandit in village Marauli for committing dacoity at Mishra petrol pump in
Churamanpur. On this, the Sub-Inspector along with the police force and
few public witnesses assembled at Maratha Pokhara and divided them into
three parties. At about 11:45 pm one of the dacoits (along with five more)
initiated the loot on which the Sub-Inspector challenged the dacoits by firing
                                                           CRLA No. 2741 of 1983
                                 6


V.L.P. Subsequently, all three police parties succeeding in making arrest of
the accused Kattu and Kamata @ Tuar along with Shabbir. The arrested
dacoits were subjected to search on the spot and from their possession a
country made pistol alongwith four live cartridges and a torch were
recovered from Shabbir, one Rampuri knife having blade of 9 anguls was
recovered from the possession of Kamata @ Tuar, the search of accused
Kattu yielded a Karauli with blade of 10 anguls in length the said recovered
articles were sealed and fard Exhibit ka-1 was prepared by Sub-Inspector
Nagina Prasad.

20. Learned A.G.A. has submitted that the judgement and order passed by
the learned trial Court does not suffer from any infirmity, perversity or
illegality, and therefore, same requires no interference by this Court.

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

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

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

24. 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.

25. 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 399 and 402 I.P.C and sentencing them to four years
rigorous imprisonment, which is just punishment and would meet the ends of
justice.

26. In view of aforesaid discussion, it is obvious that this appeal lacks merit
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                                                                    7


                                    and is dismissed accordingly.

                                    27. 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.

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

                                    February 19, 2026
                                    Dev
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




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