Allahabad High Court
Harichandra vs State Of U.P. on 2 July, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:110156-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 983 of 2019 Appellant :- Harichandra Respondent :- State of U.P. Counsel for Appellant :- Ronak Chaturvedi Counsel for Respondent :- Bhanu Prakash Verma,G.A. Hon'ble Saumitra Dayal Singh,J.
Hon’ble Madan Pal Singh,J.
(Delivered by Hon’ble Madan Pal Singh,J.)
1. The instant criminal appeal is directed against the judgment and order dated 01.01.2019 passed by 9th Additional Sessions Judge, Mathura in Sessions Trial No. 100 of 2016 (State Vs. Harichandra and others), arsing out of Case Crime No. 577 of 2015, under Sections 302 IPC, Police Station Vrindavan, District Mathura, and Sessions Trial No. 101 of 2016 (State Vs. Harichandra), arsing out of Case Crime No. 594 of 2015, under Sections 3/27 of Arms Act, Police Station Vrindavan, District Mathura, whereby the appellant has been convicted and sentenced as follows:
(i). Under Sections 302, IPC in Sessions Trial No. 100 of 2016, the appellant has been sentenced to Rigorous life imprisonment along with fine of Rs.20,000/- and in default of payment of fine fourteen months simple imprisonment.
(ii) Under Section 3/25 of Arms Act in Sessions Trial No. 101of 2016, the appellant has been sentenced to five years rigorous imprisonment along with fine of Rs.5,000/ and in default of payment of fine six months simple imprisonment. All the sentences have been ordered to run concurrently.
2. Facts giving rise to the present appeal may be summarised as under:
(i) As per the prosecution story, the informant Ranjeet Singh (P.W.-1) submitted a written report alleging therein that on 17.6.2015, his father had left for Mathura for work and at the same time, he along with his wife and mother were also going on the same way and when the incident occurred. His father was 50 meters ahead from them. As soon as his father reached outside the village, the accused persons, namely, Harichandra, Srichand and Gopichand having illegal country made pistols, came there on a motorcycle and on the other motorcycle two accused, namely, Anil and one unknown person surrounded him and all of them were saying that ” Kishan Lal Saaly Ko Maar Dalo” and started firing upon his father, due to which, his father sustained serious firearm injury. Upon hearing the sound of firing, the crowd came there, then all the accused persons fled away from the place of occurrence by extending threats to them that next time they will not spare even the informant Ranjeet Singh. Subsequently, he arranged the conveyance and took his father to Maheshwari Hospital, Mathura, where the doctor declared him dead.
(ii). On the basis of written report submitted by the informant, a case was registered i.e. Case Crime No. 577 of 2015 under Sections 147, 148, 149, 302, 504 and 506 IPC, Police Station-Vrindavan, District-Mathura against the appellants, chik F.I.R of which is proved as Ext. Ka-3 and entry to this effect has also been made in the General Diary which is proved as Ext. Ka-4. The investigation was conducted by the then Investigating Officer, Sanjai Kumar Jaiswal, who inquired the place of occurrence and collected blood stained soil which has been proved as Ext. Ka-17. Thereafter, panchnama which is Ext. Ka -7 of the dead body was done by S.S.I Nagendra Singh, who also prepared a site plan as Ext. Ka -18 and dead body was sent for the postmortem. The postmortem was conducted by Dr. Harshvardhan, which has been proved as Ext. Ka-2. On 31.8.2015 after completion of the investigation, charge-sheet had been submitted only against the present appellant, under Sections 302, 504 and 506 IPC, and 3/25 Arms Act, cognizance thereupon was taken and case was committed to the Court of Sessions for trial on 19.02.2016. The charges were framed against the appellant under Sections 302, 504 and 506 IPC and on 7.7.2018, charge under Arms Act was amended as under Section- 3/27 of Arms Act against the appellant, who denied the charges and claimed trial.
(iii) During the course of trial, Informant filed an application under Section 319 Cr.P.C. against three accused persons, namely, Shrichanda, Gopichanda and Anil and they have been summoned by the concerned Court by order dated 29.06.2017 to face trial under Sections 302, 504, 506 IPC and charges were framed against these new accused persons on 10.08.2018.
(iv). That the prosecution to prove its case has examined as P.W.1-Ranjeet Singh (Informant), P.W.2-Shanti, P.W.3-Dr. Harshvardhan, P.W.4-Vijay Chauhan, P.W.5- Nagendra Singh, P.W.6-Madhuri, P.W.7- S.I. Rajendra Singh and P.W.8- S.H.O. Sanjai Kumar Jaiswal. Out of these 8 witnesses P.W.-1 and P.W.-2 have been examined twice after summoning the three accused persons under Section 319 Cr.P.C.
(v). That the prosecution in support of its case has also produced oral as well as documentary evidence, which have been marked as Written report Ext. Ka-1, Postmortem Report Ext. Ka-2, First Information Report Ext. Ka-3 (of case crime no. 577/2015), G.D. entry Ext. Ka-4, Chik FIR Ext. Ka-5 (of case crime no. 594/2015, under section 3/25 Arms Act), G.D. entry Ext. Ka-6 (of case crime no. 594/2015 under section 3/25 Arms Act), Panchanama Ext. Ka-7 Other papers Ext. Ka-8-Ext. to Ka-13, Spot map in Arms Act Ext. Ka-14, Charge-sheet Ext. Ka-15 (under Section 3/25 arms act), the prosecution sanction Ext. Ka-16, Ferd of collection of blood stained soil Ext. Ka-17, Spot map of the place of incident Ext. Ka-18, Recovery of country made pistol Ext. Ka-19, Spot map of place of recovery of alleged weapon of assault Ext. Ka-20, charge-sheet against Harichandra (accused) Ext. Ka-21 (under sections 302, 504, 506 IPC).
3. The statement of accused persons under section 313 Cr.P.C. were also recorded, in which they denied the prosecution story and all the accused explained that there was a “Bhagwat Katha” going on in “Krishna Green Chatikara” and they were all busy in their light and tent work since 5.45 a.m. morning to 4.00 p.m. In the evening, police arrested them from that place and kept them at police station for two days and falsely challaned them in this case.
4. No defence evidence has been adduced on behalf of accused.
5. Before evaluating the evidence on record, it is apposite to have a glance of evidence adduced by prosecution which is as under:-
6. P.W.-1, Ranjeet Singh (informant of the case) stated in his examination-in-chief that about fourteen months ago, his father left for Mathura for work and at the same time, he along with his wife (Madhuri) and mother (Smt. Shanti) were behind him. As soon as his father reached outside the village near Peepal tree, accused persons namely Harichandra, Srichand and Gopichand, armed with country made pistol on one motorcycle and accused namely Anil along with one unknown person on other motorcycle came there and they all surrounded his father saying that “KISHAN LAL KO AAJ MAR DO” and thereafter started firing upon his father, due to which, he suffered serious firearm injuries. Upon hearing the sound of fire, some villagers rushed to place of occurrence, seeing the villagers coming, all the accused persons fled away from the place of occurrence by extending threats that next time they would kill him (Ranjeet) as well. Subsequently, he took his father to Maheshwari Hospital, Mathura, where the doctor declared him dead. He proved Tahrrir as Ext. ka-1.
7. P.W.-2 Shanti (wife of the informant) has stated in her examination-in-chief that her husband had died about one and half year ago. She further deposed that around 8:00 a.m. in the morning her husband had left for work on his bicycle, while she along with her son and daughter-in-law were going for treatment of her daughter-in-law on a motorcycle. On their way, outside the village, the accused persons namely, Harichandra, Shrichand, Anil and Gopichand along with one unknown person came and surrounded her husband near the Peepal tree having illegal country made pistol fired on her husband. Upon hearing the sound of fire, the crowd came out of the village then all the accused persons fled away from the place of occurrence by extending threats to them that next time they will not spare even her son Ranjeet Singh. Thereafter, she along with her son took her husband to Maheshwari Hospital, Mathura by motorcycle, where the doctor declared him dead.
8. P.W.-3, Dr. Harshvardhan, has stated in his examination-in-chief that on 17.06.2015, he was posted in District Hospital, Mathura, on that date, he conducted the postmortem of the dead body of the deceased and on external examination, he found following ante mortem injuries:
(i) Entry wound- size 1.0 x 0.5 cm cavity deep 2.00 cm from right nipple and 9.00 cm from left nipple over right side of the chest and 15.00 cm from right collar bone- margins regular.
(ii) Exit wound- 2.00 x 1.00 cm, 10.00 cm from midline (spine), 10.00 cm from lower end of scapular (over left side of back of chest) and 14.00 cm from left iliac crest. Margin- irregular entry wound is the exit point of the wound no. (1).
9. On internal examination, it is evident from the statement of the doctor that dead body was in rigor mortis stage and the probable time of death was about 1/4 day before the postmortem and the cause of death was opined to be shock and haemorrhage as a result of ante-mortem injuries and proved postmortem report as Ext. ka-2.
10. P.W. 4, Vijay Chauhan examined and stated that he was posted as computer operator at police station Vrindavan, he typed Chik F.I.R of case crime no. 577/15 and 594/15, proved the same as Ext. ka-3 and Ext. ka-5 and their G.D. entries as Ext. ka-4 and ka-6, respectively.
11. P.W.5, Nagendra Singh, has stated in his examination-in-chief that on 17.06.2015, he was posted as S.S.I at Police Station- Vrindavan, District- Mathura. He prepared the Panchanama of the dead body and prepared the site plan and sent the dead body for postmortem. He proved inquest report as Ext. ka-7 and other papers as Ext. ka-8, ka-9, ka-10, ka-11, ka-12, ka-13.
12. P.W. 6 Smt. Madhuri (wife of the informant) has stated in her examination-in-chief that her father-in-law was murdered around three and half year ago. She further deposed that around 8:00 a.m. in the morning her father-in-law left for work on his bicycle. After that she along with her husband and mother-in-law were going for her treatment on a motorcycle. On the way, outside the village, the accused persons namely Harichanda, Shrichanda, Anil and Gopichandra along with one unknown person surrounded her father-in-law, having illegal country made pistols fired upon him, due to which, he suffered firearm injuries. Thereafter, her husband with the assistance of her mother-in-law took him to the hospital where he was declared dead. She further deposed that she knew all the accused persons very well as they belong to the same village. There was a dispute regarding drainage between the deceased and the accused persons, due to that very reason they committed the murder of her father-in-law.
13. P.W.-7, S.I. Rajendra Singh, has stated in his examination-in-chief that on 20.6.2015, he was posted as Sub-Inspector at Police Station- Vrindavan and conducted the investigation under Arms Act as Case Crime No. 594 of 2015 under Section 3/25 of the Arms Act. On 21.6.2015, he recorded the statement of the witnesses pertaining to the recovery of weapon used in the commission of crime i.e. the country made pistol. Thereafter, inspected the site of the incident and prepared the site plan which is proved as Ext. Ka-14.
14. P.W.-8, S.H.O Sanjay Kumar Jaiswal has stated in his examination-in-chief that on 17.6.2015, he was posted as Station House Officer at Police Station- Vrindavan, District- Mathura. He collected the evidence such as memo of blood stained soil from the place of incident, prepared site plan of the place of incident, Ferd recovery of country made pistol, spot map of place of recovery of alleged weapon and prepared the charge-sheet against the accused Harichandra under Sections- 302, 504 and 506 IPC.
15. Heard Sri Rahul Mishra, Advocate along with Sri Raghuvansh Mishra, learned counsel for the appellant, Ms. Archana Singh, learned AGA and Sri Bhanu Prakash Verma, learned counsel for the informant.
16. The main arguments which have been raised by the learned counsel for the appellant are as under:-
(i) It has been argued by learned counsel for the appellant that the witnesses who claimed to be an eye witness of the incident were actually not present at the place of occurrence and had falsely planted themselves to be an eye witness. Besides, there was no sufficient reason of their presence at the scene, especially considering that the informant’s wife’s illness was not a serious enough to require urgent medical treatment.
(ii) It has been further argued by learned counsel for the appellant that the deceased was killed by some unknown persons at unknown place and point of time and on account of enmity between the parties as admitted by all the witnesses of fact, the accused were falsely implicated in the present case.
(iii) It has been next argued that five accused persons allegedly reached on the spot armed with illegal weapons i.e. country made pistols and opened fire upon the deceased and fled away from the spot by extending threats that next time they would not spare to the informant, if Ranjeet Singh was present, as claimed, there with his family member as well, then accused had ample opportunity to kill him too ensuring no eyewitnesses survived. However they did not harm him, which casts doubt on the presence of witnesses and the prosecution story as well.
(iv) It has been argued by learned counsel for the appellant that the postmortem report indicates the presence of 250 milligram of digested food inside stomach and also the half filled gallbladder with bile juice which leads to the conclusion that the deceased would have taken breakfast/meal at least six hours prior to his death. While the witnesses of fact claimed that the deceased left his house after taking breakfast/meal at about 8:00 a.m. on the day of incident,which does not corroborate the postmortem report.
(v) It has also been argued that alleged enmity between the parties was of trivial in nature i.e. with regard to the drainage. Such a petty issue could not reasonably lead five armed individual to murder an unarmed poor labourer.
(vi) Lastly, It has been argued that even the Investigating Officer of this case, who was examined as P.W.-8, also admitted in his examination that during investigation, no evidence was found indicating that deceased reached at the place of incident by a bicycle. It signifies that no bicycle was found on the place of incident which reflects that he must not have actually gone to Mathura for his daily work, rather he left his house for defecation where he was murdered by some unknown persons.
17. On the other hand, learned AGA and learned counsel for the informant has argued that it is a case of direct evidence corroborated by the medical evidence, leaving no doubt about the involvement of the accused. It has been further argued that due to a dispute over drainage, the accused had a motive to eliminate the deceased. It has been next submitted that a country made pistol, which was recovered on the pointing out of the accused Harichandra, corroborates to his involvement in the alleged crime and thus, he prayed that the appeal may be dismissed.
18. In view of the arguments raised by the parties, we have perused the evidence on record. As regards first contention of learned counsel for the appellant, we find that five assailants allegedly attacked the deceased with firearms, and all the witnesses of fact categorically stated the accused surrounded the deceased and fired upon him. However, the postmortem report reveals that only one gunshot injury was found on the body of the deceased. In our view, when five accused persons armed with countery made pistols, allegedly fired at a close range, the deceased would likely have sustained multiple firearm injuries. Besides no empty cartridge or bullets were recovered from the place of occurrence, which casts doubt on the prosecution case whether multiple shots were fired upon the deceased or not. The absence of blackening or tattooing around the wound also negates the claim that the shots were fired from a close range, as alleged by eye witness. The reasons assigned by witnesses for being present at the scene appears weak and implausible.
19. Upon perusal of evidence of P.W.-1 (informant of the case), it transpires that he has stated in his cross-examination that his wife Madhuri was suffering from severe pain in her legs, it also came in the testimony of Madhuri itself from the day of incident till the next 25 days she was not taken any medical treatment regarding pain suffered by her. Furthermore, her mother-in-law stated in her examination-in-chief that she did not know that from what ailment her daughter-in-law was suffering. The mother-in-law of Madhuri in her statement stated that neither she asked her son nor to Madhuri regarding the ailment suffered by her being a head female member of the family, she would reasonably have known such details. Moreover the fact of illness of Madhuri was neither stated in Tehrir written by informant nor in the statement on oath given by first time before the Court, this fact came in to surface first time when the P.Ws. again exmined on oath after the summoning of accused under section 319 Cr.P.C. which clearly reflects that fact regarding the illness of Madhuri was nothing but a sheer development. These inconsistencies suggest that Madhuri was not suffering from any illness which necessitated to take her to the doctor for her treatment on that day. On this premise, the presence which have been tried to establish on spot become doubtful and the evidence which is available on record clearly shows that there was no such illness which made the Madhuri indispensable to go for her treatment. Thus, we are of the view that the evidence of the witnesses of facts are not appears to be reliable.
20. From the perusal of the Tehrir and testimony of the evidence of P.W.-1, it transpires that the accused while fleeing, threatened to eliminate Ranjeet Singh. If the testimonies of P.Ws. 1, 2, and 3 are taken to be true, then not only Ranjeet Singh but his entire family was present at the spot, merely 20 paces away from the armed assailants. In such situation, the accused had ample opportunity to eliminate Ranjeet Singh as well as other family members present there, so that no eye witnesses would remain to testify against in future. Their failure to do so rases doubt about the prosecution version.
21. So far as the other arguments regarding 250 milligram digested food and bile juice in the gallbladder as mentioned in the postmortem report is concerned, we deeply scrutinize the evidence on record, it has came in the evidence that the father of the informant used to take breakfast/meal between 7:00 to 7:30 a.m. before going for his daily work, P.W.-6 Madhuri, who is daughter-in-law of the deceased stated specifically that her father-in-law had taken breakfast an hour before leaving house. Thus, the testimony of P.Ws.-1, 2 and 3 goes to show that deceased had taken breakfast/meal before leaving home. Thus, according to the P.Ws.-1 and P.W.6 (Madhuri) the fact that the deceased had taken breakfast before leaving house is established. If we peruse the testimony of Dr. Harshvardhan, P.W.-3, who conducted the postmortem, he has stated in examination that he found 250 milligram digested food in the stomach and gallbladder was found half filled. On cross-examination by the defence this witness stated the presence of bile juice in gallbladder leads to a conclusion that food which would have been taken by the deceased was digested. Thereafter, secretion of bile juice would start. He also stated that the deceased had taken food at night but was not able to defecate. The testimony of this witness (P.W.-3) clearly shows that secretion of bile juice can only be started when the process of digestion is completed, while P.Ws. 1 and 6 state that the deceased had taken breakfast/ meal before leaving his house. Thus, it was not possible that the breakfast/meal which was alleged to have been taken by the deceased in the morning would have been digested within very few hours, which clearly suggest that actually the deceased had not left his house after taking breakfast/meal rather he left his house for defecation in the early hours of the morning to attend to the nature’s call. There he was murdered by some unknown persons and that was the reason, there was 250 milligrams digested food found present in his stomach. Thus, theory of these witnesses of facts that the deceased had left his house to his work place after taking breakfast is completely becomes falsified. Moreover, P.W.-2, wife of the deceased has stated in her cross-examination that her husband used to go for defecation in the field which was situated near the Peepal tree (place of occurrence). The testimony of P.W.-2 also supports the possibility that the deceased had left for defecation, (not for work), as has been admitted during cross examination that her husband used to defecate near the Peepal tree, which was the place of incident. The bicycle which was alleged to be used by the deceased was not recovered either by the police or by the family member of the deceased. Hence, absence of bicycle at the spot though he was allegedly riding one also weaken the prosecution story. The investigating officer also admitted that he did not find any evidence that the deceased had reached the place of incident by bicycle.
22. From the evidence on record, it also transpires that none of the witnesses were able to clarify that amongst the accused, who was riding the motorcycle, who was the pillion rider and actually by whose fire caused the firearm injury to the deceased. Furthermore, they failed to specify the direction in which the accused fled away after committing the alleged offence, despite all the eye witnesses claimed to have been present merely 20 paces away from the place of occurrence. These facts lead us to the conclusion that the eye witnesses were not physically present at the place and time of incident. Thus, we find force in the argument advanced by learned counsel for the appellant.
23. As regards the issue of enmity raised by learned counsel for the appellant, we find from the records that P.W.-1 has admitted that there was an enmity regarding drainage. He also admitted that Gopichandra had lodged a case against them and further admitted that wife of Harichandra and Gopichandra also made a complaint against them regarding molestation. Thus, the possibility of false implication on account of enmity cannot be ruled out. Additionally from the testimony of the P.W.1 at page no. 11 (Ka-3 and Ka-4) in the trial court record, it is evident that he admitted in cross-examination that by the time he reached near his father, the assailants had already left the scene and he did not know whether they had seen him or not. This contradicts his earlier claim that he was just 20 paces away from the place of occurrence, that the accused would not have been implicated in these cases on account of enmity admitted by P.W.-1 (son of the deceased).
24. On close scrutiny of this witness, it appears that he did not saw the assailants at the spot because it is unlikely that would not have seen him such a short distance. Likewise, if we peruse the testimony of P.W.-2, who stated in her cross-examination that even in the village, a rumour had spread that due to the enmity over a drainage dispute, the accused persons must have killed her husband. The above statement of P.W.-2 also suggests that none of the witnesses had seen the accused to commit the crime and only on the basis of rumour spread in the village, family members of the deceased came to know and reached the place of occurrence where the dead body of the deceased was lying. There are some material contractions in the testimonies of the witnesses that the informant had mentioned in his Tehrir that he found his father lying at spot, thereafter, arranged the vehicle to the hospital while in the examination on oath, he completely changed his version and claimed that he had taken his father on his own motorcycle with the assistance of his mother, this inconsistency also shakes credibility of the witness. Therefore, we are of the view that the testimonies of presecution witnesses are not reliable enough to sustain conviction of the appellant.
25. It is also pertinent to note that the allegations were levelled against five accused persons for committing the murder of the deceased. However, a perusal of the record reveals that none of the witnesses, who claimed to be an eye witnesse, stated in their testimonies that which of the accused caused the gunshot injury to the deceased and almost similar allegations have been levelled against all of the accused. Hence, it is unclear how the trial court convicted the present appellant on the same evidence that was held insufficient against the other four accused persons. Hon’ble Apex Cout in Javed Shaukat Ali Qureshi Vs. State of Gujarat; (2023) 9 SCC 164 has held that court cannot convict one accused and acquit other on the similar role as well as similar set of fact. The paragraph no. 15 of the said judgment which reads as under:-
15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit other. In such case, the cases of both accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, court cannot make a distinction between the two accused, which will amount to discrimination.
26. In the present case, where identical evidence is led against all five accused persons and no specific role or overt act has been attributed to any of the accused, the acquittal of four and conviction of one accused on the same set of evidence is wholly unjustified in view of law laid down by the Hon’ble Apex Court in the Case of Javed Shaukat Ali Qureshi (supra).
27. With respect to the recovery of illegal country made pistol from the possession of the appellant is concerned, from the evidence on record, we find that the country made pistol (tamancha 315 bore) which is said to have been recovered from his possession, cartridge of 9mm found in the barrel of alleged weapon, which appears totally unbelievable, as the cartridge of 9mm can not be fired from the barrel of 315 bore. Moreover, the said country made pistol were not sent for Forensic Science Laboratory to check that whether it was in working condition or not. Surprisingly, the Investigating Officer himself admitted in his cross-examination that he has not sent the recovered country made pistol for Forensic Science Laboratory for examination and even did not check whether it was in working condition or not. The Hon’ble Apex Court in Ramanand @ Nandlal Bharti Vs. State of U.P.; (2023) 16 SCC510 has observed about the manner for recovery under section 27 of the Evidence Act ;-
“If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his bloodstained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.”
28. In the present case, the Investigating Officer has not prepared first part of panchnama at police station before the two independent witnesses, rather entire recovery memo has been prepared at spot which is not in consonance with the law laid down of Apex Court. Moreover, the place of recovery is said to be an open place where there was a paved path for use of public, but no independent witnesse was made to prove the recovery.
29. For the reasons aforesaid, we are of the considered opinion that prosecution had failed to prove the guilt of the accused beyond all reasonable doubts. While recording conviction against the appellant, the trial court has failed to properly appreciate the evidence in correct perspective and erroneously recorded the finding of conviction, which is not sustainable in the eyes of law. The appeal deserves to be allowed.
30. Thus, for all the reasons stated above, the instant Appeal is accordingly, allowed. The appellant is acquitted from the charges levelled against him. The judgment and order dated 01.01.2019 is set-aside. The Appellant Harichandra is on bail. He need not surrender himself, he shall be set free forthwith, provided, if he is not wanted in any other case. His bail bonds are cancelled and sureties are discharged.
31. Let a copy of this order be sent by the Registrar (Compliance) to the court concerned for compliance and necessary action.
Order Date :- 2.7.2025
Akbar
(Madan Pal Singh,J.) (Saumitra Dayal Singh,J.)