# Dinesh & Ors v. State

- **Citation:** (2026) 4 ILRA 1024
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-29
- **Case number:** Criminal Appeal No. 274 of 1985
- **Bench:** Sanjiv Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-ors-v-state-54676
- **Pages:** 11

## Text

1024 INDIAN LAW REPORTS ALLAHABAD SERIES
42. The appellant is on bail. His bail bonds and personal bonds are cancelled and the
sureties discharged. He need not surrender.

43. The appellant shall execute a personal bond in the sum of Rs.25,000/- under Section
481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437-A of the Code
of Criminal Procedure, 1973) for his appearance, in the event of an appeal being preferred against
his acquittal.

44. Let a copy of this order be sent to the learned Trial Court concerned alongwith the Trial
Court record for information and necessary compliance.
---------
(2026) 4 ILRA 1024
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2026

BEFORE

THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 274 of 1985

Dinesh & Ors. ...Appellants
Versus
State ...Respondent

Issue for Consideration
Matter pertains to whether the prosecution proved beyond reasonable doubt the involvement of the surviving
appellants in causing the death of the deceased and whether the conviction of appellant Dinesh under S. 304
(Part 2) IPC and appellant Suresh under S. 304 (Part 2) read with S. 34 IPC was sustainable on the basis of
ocular and medical evidence. (Paras 29-43)

Headnotes
Criminal Law - Culpable Homicide Not Amounting to Murder - Appreciation of Ocular and Medical
Evidence - Indian Penal Code, 1860 - Ss. 304 (Part 2), 34 - Code of Criminal Procedure, 1973 -
Legal Principle that prosecution must prove its case beyond reasonable doubt and testimony of
chance witnesses requires careful scrutiny - FIR lodged promptly within 45 minutes of
occurrence and place of occurrence fully established by recovery of blood stained earth and siteplan - testimony of eye-witnesses examined with caution and corroborated by medical evidence
- involvement of appellant Dinesh established beyond reasonable doubt - conviction and
sentence upheld. (Paras 29, 30, 31, 36, 38, 39, 40, 42, 46)
Criminal Law - Common Intention - Benefit of Doubt - Indian Penal Code, 1860 - Ss. 304 (Part
2), 34 - Requirement of cogent evidence showing participation and role of co-accused -
witnesses failed to assign any overt act to surviving appellant Suresh and his involvement in the
crime was not fully established - charge not proved beyond reasonable doubt - appellant entitled
to benefit of doubt and acquittal. (Paras 33, 35, 41, 43, 44)
Evidence - Chance Witnesses - Reliability and Identification of Accused - Indian Evidence Act,
1872 - Appreciation of Evidence - testimony of chance witnesses cannot be discarded outrightly
but requires careful scrutiny - failure of prosecution to conduct identification of accused through
witnesses not previously acquainted with them affected evidentiary value of such testimony
4 All. Dinesh & Ors. Vs. State
1025
against certain accused - testimony reliable only to the extent supported by identification and
corroborative circumstances. (Paras 31, 32, 33, 35)
Criminal Law - Ocular and Medical Evidence - Corroboration - Indian Penal Code, 1860 - S. 304
(Part 2) - doctor found stabbed wound over left thigh and femoral artery cut resulting in
excessive blood loss and shock - medical evidence fully corroborated ocular version that
appellant Dinesh stabbed the deceased with a knife - prosecution case fully established against
appellant Dinesh. (Paras 18, 40)
Held: Prosecution has been able to prove its case beyond reasonable doubt against appellant Dinesh and the
FIR has been lodged promptly and there is no inordinate delay in lodging the FIR - place of occurrence is fully
established from the evidence on record - testimony of chance witnesses cannot be discarded outrightly but it
requires careful scrutiny - testimony of P.W.3 Kailash Chandra fully supports the involvement of appellant
Dinesh in the said crime and P.W.4 Hari Om Sharma is reliable and trustworthy and from his testimony the
prosecution case is fully established - ocular testimony stands corroborated by the medical evidence and the
victim died on account of shock and hemorrhage due to the injury caused by appellant Dinesh - appellant
Dinesh is guilty of committing culpable homicide not amounting to murder and has been rightly convicted and
sentenced by the learned Trial Court - so far as surviving appellant Suresh is concerned his involvement in the
crime is not fully established and no overt act has been assigned to him - prosecution has failed to prove his
involvement in the said crime and the charge against him is not proved beyond reasonable doubt and
therefore he deserves benefit of doubt and acquittal - Appeal partly allowed. (Paras 29-43, 44, 46) (E-7)

Case Law Cited
None

List of Acts
Indian Penal Code, 1860; Code of Criminal Procedure, 1973; Bharatiya Nagarik Suraksha Sanhita, 2023;
Indian Evidence Act, 1872

List of Keywords
culpable homicide not amounting to murder; common intention; chance witnesses; prompt FIR; ocular
testimony; medical evidence; stabbed wound; blood stained knife; benefit of doubt; identification of accused;
place of occurrence; corroboration; reliable and trustworthy witness; shock and hemorrhage; beyond
reasonable doubt; acquittal; conviction

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal filed under S. 374(2) Cr.P.C. against the judgment and order
dated 22.01.1985 passed by the 11th Additional Sessions Judge, Agra in Sessions Trial No. 291 of 1984
arising out of Case Crime No. 484 of 1983 whereby appellant Dinesh was convicted under S. 304 (Part 2) IPC
and appellants Mahesh, Suresh and Madan Lal were convicted under S. 304 (Part 2) read with S. 34 IPC.

Appearances for Parties
Advs. for the Appellant:
Mr. Vishvendra Singh
Advs. for the Respondents:
Shri Rajeev Pandey, learned Additional Government Advocate for the State.

(Delivered by Hon'ble Sanjiv Kumar, J.)

1. This Criminal appeal has been filed under Section 374(2) of Code of Criminal Procedure,
1973 (in short Cr.P.C.) against judgment and order dated 22.01.1985 passed by Mr. V. D.
Dubey, 11th Additional Sessions Judge, Agra in Sessions Trial No. 291 of 1984 (State Vs. Dinesh
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
and others), arising out of Case Crime No. 484 of 1983, under sections 307 IPC, Police Station
Kotwali, District Agra.

2. By the impugned judgment and order, the learned Trial Court convicted and sentenced
appellant Dinesh to undergo three years rigorous imprisonment for offence punishable under
Section 304 (Part 2) of Indian Penal Code,1860, (in short IPC) and appellants Mahesh, Suresh and
Madan Lal were convicted and sentenced to undergo rigorous imprisonment for three years for
offence punishable under Section 304 (Part 2) read with Section 34 IPC.

3. During the pendency of this appeal, appellants Mahesh and Madan Lal have died and
vide order dated 03.08.2022, the appeal stood abated against them. Now this appeal survives only
against appellant Dinesh and Suresh.

4. Brief facts of the prosecution case are that Hariom Sharma son of Gopal Das Sharma,
resident of 30/73, Chitti Khana,, Police Station Kotwali, District Agra, filed a written application
(Ext. Ka-1), before In-charge Police Station, Kotwali, District Agra, stating therein that today at
about 11:45 a.m., he was having conversation with Nand Kishor @ Nandu, son of late Kullo Baba,
resident of Chitti Khana, near Shri Bhawans Scrap shop. In the meantime, Suresh, Mahesh,
Dinesh, all sons of Narayan Das Kaachi, Mohalla Tila Bharon, Heeng Mandi, came and abused
Nandu and said that he prevents them from coming to Chitt Khana, therefore, they would teach him
a lesson. They caught hold of Nandu and when Nandu tried to escape, Dinesh took out a knife from
his pocket and attacked Nandu, who sustained grievous injuries and fell on the ground. The first
informant raised alarm, whereupon Raja Babu, son of Bangali Singh, Ramendra Nath son of
Rajnath, residents of Chitti Khana and Shiv Kumar son of Jagdish Prasad, resident of Namak
Mandi and Kailash Chandra son of Kundan, resident of Chitti Khana, arrived at the spot and
witnessed the incident. Other people present there too witnessed the incident. Upon alarm being
raised, the accused persons ran away from the spot. The first informant and other people brought
Nandu to his house and subsequently he was taken to hospital by his family members.

5. Upon this information, FIR under Case Crime No. 484 of 1983, under Section 307 IPC
was registered at Police Station Kotwali, District Agra on 17.12.1983 at 12:30 p.m. and the
investigation of the case was entrusted to S.I. Vijendra Singh Yadav. The Investigating Officer
commenced investigation and reached at the place of occurrence, from where he collected samples
of plain earth and blood stained earth and prepared its recovery memo (Ext. Ka-9). He thereafter
recorded the statements of first informant and other witnesses. The collected materials were sent for
chemical examination. During treatment, the victim, Nandu, succumbed to his injuries and the case
was converted under Section 302 IPC. Thereafter, his inquest was prepared and the body was sent
for post-mortem examination. After concluding the investigation, the Investigation Officer filed
charge-sheet against the accused persons under Section 302 IPC before learned C.J.M., Agra.

6. The concerned court took cognizance of the offence and summoned the accused persons.
They appeared before the court and were furnished with copies of prosecution papers under Section
207 Cr.P.C. and thereafter the case was committed to the Court of Sessions for trial. The accused
appeared before the court of Sessions, where charge under Section 302 read with 34 IPC was
framed against the accused Suresh, Mahesh and Madan Lal and charge under Section 302 IPC was
4 All. Dinesh & Ors. Vs. State
1027
framed against accused Dinesh. The said charge was read out and explained to them. The accused
abjured the said charge, pleaded not guilty and claimed to be tried.

7. The prosecution has examined eleven witnesses to prove its case, to wit, Ramendra Nath
(P.W.1), Raja Babu Chauhan (P.W.2), Kailash Chandra (P.W.3), Hariom Sharma (P.W.4), Dr.
Kishor Basantgi (P.W.5), Dr. R.K. Saxena (P.W.6), Shiv Shankar Tripathi (P.W.7), S.I. Shiromani
Singh (P.W.8), S.S.I. Vijendra Singh (P.W.9), Inspector Baljeet Singh (P.W.10) and Constable
Chandra Pal Singh (P.W.11). Their testimony, in brief, is enumerated as under.

8. P.W.1, Ramendra Nath, is an eye-witness of the alleged incident, who has deposed that
on 17.12.1983 at about 11:45 a.m., he was going to Rawatpada to purchase fruits. Near
Bhagwans scrap shop, he saw the accused persons catching hold of Nandu, who were saying that
he was trying to prevent them from coming to Chitti Khana and now they would teach him a
lesson. In the meantime, accused Dinesh pulled out a knife from his pocket and stabbed, while
Nandu was on a run. The knife struck Nandu just below the buttock to the left side. Shiv Kumar,
Raja Babu, Kailash Lal, Hari Om and many other persons were present there.

9. In cross-examination, he has said that the scrap shop was 60-70 steps away from his
house and there are two roads which go to his house. He heard the noise as soon as he had left his
house and witnessed the incident after reaching on a turn. He further said that he had heard that
Nandu was stabbed with knife. Nandu was stabbed before him. The shops were closed at the time
of incident. It is also stated by him that he had not seen the accused persons prior to the incident
and saw them only at the time of incident and thereafter in Court.

10. P.W.2, Raja Babu Chauhan, is also an eye-witness of the incident. He, in his
examination-in-chief, has deposed that the incident is dated 17.12.1983, which took place near Shri
Bhagwans scrap shop at about 11:45 a.m. It is stated that at the relevant time, he was proceeding
to purchase Khoya (condensed milk) from Khoya Mandi. As soon as he reached the place of
occurrence, he heard some noise and, upon turning behind, saw somebody had stabbed someone
and four persons were on a run. He further stated that he knows the accused persons, who are
present in Court and their names are Dinesh, Suresh, Mahesh and Madan. He further said that
Nandu was stabbed by a knife, however, he did not witness any person inflicting the blow of knife
to Nandu. Hariom Sharma was shouting that knife has been struck. He further said that he had seen
a knife in Dineshs hand, stained with blood.

11. In cross-examination, P.W.2, Raja Babu Chauhan, said that he had told the
Investigating Officer that Dinesh was holding a blood stained knife in his hand. The scrap shop of
Shri Bhagwan was 50-60 steps away from Khoya Mandi. He deposed that as soon as, he reached
the spot, an argument was taking place between Nandu and the accused. He then proceeded further
to purchase Khoya, and thereafter Nandu was stabbed with a knife.

12. P.W.3, Kailash Chandra, is also one of the eye-witness. He, in his examination-in-chief,
stated that at the time of incident he was filling water from tap near the scrap shop of Shri Bhawan.
He said that he knows name of accused Dinesh, Mahesh, Suresh, but is not acquainted with them.
The witness identified the accused persons by their faces and not by their names, but he identified
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant Dinesh by name also in court and said that he knows him since before. He further said
that the appellants had surrounded Nandu and were saying that he was preventing them from
coming to Chitti Khana. Nandu replied that they come there to tease girls, so he would, therefore,
stop them. Thereupon, Dinesh pulled out a knife from his pocket and inflicted a blow over
Nandus left thigh and thereafter the accused fled away.

13. In cross-examination, P.W.3 has said that he knew only the name of appellant Dinesh,
as Dinesh used to visit to Chitti Khana and had friendship with his brother. It is further stated that
his house is situated at a distance of about one furlong from the place of occurrence. He further
deposed that two shops were open at the time of incident and that after the incident, the
shopkeepers left after closing the shops. He also stated that at the relevant time he was filling water
near a shop.

14. P.W.4, Hariom Sharma, is the first informant and eye-witness of the incident. He has
deposed in his examination-in-chief that at the time of incident, deceased Nand Kishor @ Nadnu
was having a conversation with him near Shri Bhagwans scrap shop, situated in Chitti Khana. In
the meantime, all the four accused reached there and said to Nandu that he prevents them from
coming to Chitti Khana and today they would teach him a lesson. They pulled Nandu and caught
hold of him. The accused grappled with Nandu. When Nandu tried to run away, Dinesh pulled out
a knife from his pocket and struck it at Nandus left thigh. Nandu fell on the ground and blood
splattered over the place of occurrence. Thereafter, Nandu was taken to his house and from there
his uncle and mother took him to the hospital. P.W.4 himself went to the Police Station Kotwali
and lodged the FIR.

15. In cross-examination, P.W.4 said that Nandu was his neighbour. The accused
frequented the lane (Gali) since last 6-7 months. He further said that since the accused used to visit
his neighbour, Sohan, and would sit there, therefore, he recognizes them. He never had any
conversation with them and never asked their names. Nandu was caught hold by Dinesh and Madan
and all of them surrounded him and thereafter pulled him down. When Nandu tried to escape,
Dinesh pulled out a knife from his pocket and struck it over his thigh, as a result he fell on the
ground. He further stated that Khoya Mandi is 20-25 steps away from the place of occurrence.
Nobody came in front of Shri Bhagwans Scrap shop because the shops were not open. The shops
in Chitti Khana used to open at 12:00-12:30 p.m. whereas Khoya Mandi opens at 07:00 a.m. in the
morning.

16. P.W.5 Doctor Kishor Basantgi is the person, who has furnished information of the
death of Nandu to Police Station after he was admitted in S.N. Hospital, Agra.

17. P.W.6, Doctor R.K. Saxena has conducted autopsy of the deceased Nandu on
18.11.1983 at 02:00 p.m. He stated that the body was average built. Rigor mortis had passed
through upper limb of the body and was present in the lower limb. He found following antemortem injuries:
4 All. Dinesh & Ors. Vs. State
1029
 (i) a stabbed wound 1 inch 4 cm x 1/2 cm x muscle deep over the bak left thigh. 8 and half
inches above the knee. The direction of the wound was horizontal and straight and was three and
half inches in depth. The margins of wound were cleanly cut.

 (ii) stitched wound 1 cm x 1/2 cm in the back and inner lower of both knees.

18. In internal examination, both lungs, spleen and kidneys were pale. Both chambers of
heart were empty. Femoral artery of left thigh was cut and a large quantity of blood was found
between muscle and fat. Liver was found pale. Spleen and kidneys were pale. The cause of death
was excessive blood loss and shock as a result of injury no.1, which was sufficient in the normal
course to cause death. The witness has proved the post-mortem report as Ext. Ka-3 and has said
that due to excessive bleeding, the lungs and liver were pale and both chambers of heart were
empty. Both chambers of heart were empty, because the arteries, which take blood to the heart were
severed. It is correct that had the deceased received proper treatment, he could have been saved.

19. P.W.7, Shiv Shankar Tripathi, Assistant Director, FSL Agra, is a formal witness, who
has proved FSL report and the articles sent for forensic examination.

20. P.W.8, S.I. Shiromani Singh Chauhan, has prepared inquest of the deceased in the
mortuary at S.N. Hospital, Agra along with connecting papers on 17.12.1983 at 03:20 p.m. He has
proved inquest report as Ext. Ka-5 and related as papers Exhibits. Ka-6 and Ka-7.

21. P.W.9, S.S.I. Vijrendra Singh, is the first Investigating Officer of the case. He has
stated about the investigation carried out by him. He deposed that he had reached at the place of
occurrence and prepared its site-plan, which he proved as Ext. Ka-8. He also collected blood
stained earth and prepared its recovery memo, which he proved as Ext. Ka-9. He has said that
accused Suresh was arrested by him. In cross-examination, P.W.9 has said that the blood had
splattered in an area of one or two steps, at the place of occurrence. The witness Raja Babu had told
him the names of all the accused persons.

22. P.W.10, Inspector Baljeet Singh, has deposed that he is the second Investigating
Officer of the case. He stated about the investigation carried out by him and said that he recorded
statement of witnesses and sent the recovered articles for forensic examination. In crossexamination, he has said that P.W.3, Kailash Chandra, had not given him the statement that
deceased Nandu was surrounded by all the accused.

23. P.W.11, Constable Chandra Pal Singh, is also a formal witness, who has proved chik
FIR No. 438 scribed by Head Moharrir, Mahavir Prasad, as secondary witness and its G.D. No. 38
dated 17.12.1983 at 12:30. He has further stated that on 17.12.1983 by G.D. No. 40 at 14:35 p.m.,
the case was converted from Section 307 to 302 IPC, after the information from S.N. Hospital,
Agra was received that the deceased was declared dead by the doctor. In cross-examination, he has
said that before or after this case, no case of cognizable offence was reported at the police station.

24. After the closure of prosecution evidence, statement of accused were recorded under
section 313 Cr.P.C. in which they denied the prosecution case and stated that the witnesses are
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
deposing falsely against them. They further said that they were not present at the place of
occurrence or committed the offence. The defence has not adduced any evidence in their defence.

25. After hearing arguments of both parties and perusing the evidence on record, the
learned Trial Court came to the conclusion that the prosecution has been able to prove its case
beyond reasonable doubt, but observed that the case was made out for culpable homicide and not
amounting to murder and accordingly, Dinesh was convicted for offence punishable under Section
304 (Part 2) IPC and rest of the appellants Mahesh, Suresh and Madan were convicted for offence
punishable under Section 304 (Part 2) read with Section 34 IPC and all of them were sentenced for
the terms as indicated above.

26. Heard Mr. Vishvendra Singh, learned counsel for the appellant and Shri Rajeev
Pandey, learned Additional Government Advocate on behalf of the State and perused the material
available on record.

27. Learned counsel for the appellant submits that the testimony of eye-witnesses is not
reliable. It is further submitted that there are major contradictions in the statement of prosecution
witnesses. The prosecution has failed to prove motive for the appellant to commit murder of the
deceased. There is no evidence that the offence was committed in furtherance of common intention.
The ocular testimony is not supported with medical evidence, therefore, the impugned judgment
and order is liable to be set aside and the appellant deserves to be acquitted from the offence
charged against them.

28. Per contra, learned AGA submits that this is a daylight murder case based on direct
evidence. The witnesses examined by the prosecution are consistent, reliable and trustworthy. It is
further submitted that there are no major contradictions in their testimony. The ocular testimony is
supported by medical evidence. There was motive for the appellant to commit this crime. It is also
argued that in a case based on direct evidence, the motive loses its significance, therefore, the
appellants were rightly convicted and sentenced and this appeal has no force, which is liable to be
dismissed.

29. It is well settled law that in a criminal case, the burden of proof lies upon the
prosecution to prove its case beyond reasonable doubt. According to the prosecution, the incident
occurred on 17.12.1981 at 11:45 a.m. and the FIR was lodged on 17.12.1983 at 12:30 p.m. itself,
which means that within 45 minutes the FIR was lodged. The distance from the place of occurrence
to the Police Station, according to the chik-FIR, is three furlong, therefore, the FIR has been lodged
promptly and there is no inordinate delay in lodging the FIR. Learned counsel for the appellants has
also not disputed the fact of prompt lodging of the FIR.

30. The appellants are named in the FIR and, according to the prosecution, the incident
occurred near Shri Bhagwans scrap shop in Chitti Khana, under Police Station Kotwali, District
Agra. According to the prosecution, the deceased Nandu was caught hold of by the other accused,
and when he attempted to escape, he was stabbed by appellant Dinesh. According to the
prosecution, Nandu sustained one stabbed wound in the back side of left thigh 8.50 inches above
from the knee. It has come in evidence that after sustaining injuries, Nandu fell on the ground and
4 All. Dinesh & Ors. Vs. State
1031
thereafter he was taken to his house and subsequently to the hospital. The Investigating Officer has
collected samples of blood stained earth and plain earth from the place of occurrence and shown
the above place of occurrence in the site-plan (Ext. Ka-8). The appellants have not alleged any
other alternative place of occurrence, therefore, from the evidence on record, the place of
occurrence is fully established.

31. To prove its case, the prosecution has examined four witnesses of fact namely, P.W.1
Ramendra, P.W.2 Raj Babu Chauhan, P.W.3 Kailash Chandra, P.W.4 Hariom Sharma. A close
scrutiny of statement of all the above four witnesses goes to show that P.W.1 Ramendra Nath
happened to be at the place of occurrence, while going from his house to Rawatpada to purchase
fruits. P.W.2, Raja Babu Chauhan, happened to be there while going to purchase Khoya from
Khoya Mandi. P.W.3, Kailash Chandra, happened to be there while filling water from the tap for
his shop. Therefore, all the aforesaid three witnesses are chance witnesses. Their testimony,
however, cannot be discarded outrightly, but it requires careful scrutiny.

32. On careful examination of the testimony of P.W.1, Ramendra Nath, it appears that in
his examination-in-chief, he has supported the prosecution case by stating that the incident
happened before him, while he was on his way to purchase fruits. However, in his crossexamination, he has said that he does not know the accused persons since before the incident. He
happened to see them for the first time, at the time of incident and thereafter in the Court.
Therefore, P.W.1 was not acquainted with the appellants prior to the incident or thereafter.
Therefore, it was the duty of the prosecution to get the appellants identified from him before the
Court. The prosecution did not conduct dock identification of the appellants through this witness.
Therefore, his testimony is not reliable to establish that it was the appellants, who committed the
offence.

33. So far as the testimony of P.W.2, Raja Babu Chauhan, is concerned, he has stated in his
examination-in-chief that he knew all the four accused since before the incident. However, he has
said that he did not see who stabbed knife to Nandu. He said that it was Hariom Sharma, who was
shouting that chaaku maar diya. He has said that he saw accused fleeing from the spot and also
saw the blood stained knife in Dineshs hand. This witness has been thoroughly cross-examined,
but he remained consistent thorough out his testimony. Therefore, the statement of P.W.2, Raja
Babu Chauhan, supports the prosecution case to the extent that it was appellant Dinesh, who was
seen having a blood stained knife in his hand, while running away from the spot, just after the
incident. So far as rest of the appellants are concerned, the testimony of this witness does not rope
them in committing the said crime and he has not said anything else against rest of the appellants.

34. P.W.3, Kailash Chandra, happens to be the person, who has a shop nearby the place of
occurrence. According to the prosecution, at the relevant time he was filling water from a tap for
his shop and witnessed the incident. He has identified appellant, Dinesh, by name and face and rest
of the appellants by face in court. He has also said that he knew appellant Dinesh since before the
incident. He has said that all the appellants had surrounded Nandu and were saying that he stops
them from coming to Chitti Khana. Nandu was saying that they come there to tease the girls,
therefore, he would prevent them. Thereupon, appellant Dinesh pulled out a knife from his pocket
and hit it on the left thigh of Nandu and subsequently all the appellants fled from the spot. This
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
witness has not specifically stated what other appellants were doing at the time of incident. He has
not assigned any role to other appellants. In cross-examination, he has said that he knows only
accused Dinesh, out of all the accused persons, who used to come to his brother's house and with
whom he had family terms.

35. In view of the above, if P.W.3 was neither acquainted with other appellants except
Dinesh nor knew their names, then it was the duty of the prosecution to have the remaining
appellants identified through him in Court and should have also asked him the specific roles played
by other three appellants. The prosecution did not conduct any dock identification of the other
appellants through this witness, therefore, so far as the other appellants are concerned, their
involvement in the said crime is not corroborated by the testimony of P.W.3 Kailash Chandra.

36. So far as appellant Dinesh is concerned, this witness has been thoroughly crossexamined and he has remained consistent through out his testimony supporting the prosecution case
that it was Dinesh, who had stabbed Nandu at the time of incident. There is nothing in his statement
to indicate that he has been on inimical terms with the appellants or there was any other reason for
him to depose falsely against the appellant. Therefore, the testimony of P.W.3, Kailash Chandra,
fully supports the involvement of appellant Dinesh in the said crime.

37. Now, the statement of P.W.4, Hariom Sharma, remains to be examined, who happens
to be the first informant also. He has supported the prosecution case in his statement and has said
that he was present at the place of occurrence and was talking to Nand Kishor @ Nandu near Shri
Bhagwans Scrap shop. In the meantime, all the four accused namely, Dinesh, Mahesh, Suresh
and Madan reached there and said to Nandu that he prevents them from coming to Chitti Khana and
that today they would teach him a lesson. They caught hold of Nandu and grappled with him and
when Nandu tried to escape, appellant Dinesh pulled out a knife from his pocket and hit it over his
left thigh. Nandu fell on the ground and blood started oozing out from the wound. Thereafter,
Nandu was taken to his house and subsequently to the hospital. He himself went to the Police
Station Kotwali and lodged the FIR.

38. P.W.4, Hariom Sharma, has been cross-examined at length, but nothing material has
emerged to discredit his testimony. This witness has been consistent through out and is thus,
reliable and trustworthy. P.W.4, Hari Om Sharma, is a neighbour of the deceased. He has said that
the accused used to come in his lane for the last six-seven months at his neighbour Sohans house,
thus, he knew him by his name. He himself had not conversed with Sohan. He has said that Dinesh
and Madan had caught hold Nandu and rest of the accused were standing there. Then they thrashed
Nandu to the ground. As soon as Nandu tried to escape, Dinesh pulled out a knife from his pocket
and inflicted a blow to Nandu's left thigh, as a result he fell on the ground. He specifically said that
he had seen knife in Dinesh's hand.

39. It has been submitted on behalf of learned counsel for the appellant that it has come in
evidence that the shops were not open at the time of incident, therefore, there was no occasion for
P.W.4 to remain present at his shop. This submission has no force, as the witness has specifically
said that he was Nandus neighbour and was talking to him at the place of occurrence, when the
accused arrived there and attacked Nandu. Therefore, P.W. 4s presence at the place of occurrence
4 All. Dinesh & Ors. Vs. State
1033
had no connection with the opening of shop. There is nothing on record to show that this witness
had any enmity against the appellants or there was any other reason that could prompt him to
depose falsely against the appellants. Therefore, from the testimony of P.W.4, Hari Om Sharma,
the prosecution case is fully established.

40. So far as the medical evidence is concerned, it fully corroborates the ocular testimony.
It has come in evidence that the deceased was struck with knife by appellant Dinesh over the back
side of his left thigh and the doctor has found the stabbed wound over on that part of the body. The
artery was found cut and due to excessive bleeding from injury no.1, the victim died on account of
shock and hemorrhage and the above injury, in the normal course, was sufficient to cause death.
Both blood vessels supplying blood to the heart were found cut. In view of the above, the ocular
testimony stands corroborated by the medical evidence.

41. As per prosecution, there was motive for the appellants to commit the crime, as it has
come in evidence that deceased Nandu used to prevent them from coming to Mohalla Chitti Khana
on account of their teasing girls, to which he objected. At the time of incident, the appellants
reached at the place of occurrence to teach him a lesson and in the process Dinesh stabbed Nandu
with a knife and Madan had caught hold of him. Mahesh and Madan Lal have died during the
pendency of this appeal and the appeal has abated against them. So far as the surviving appellant,
Suresh is concerned, from the testimony of all the four witnesses of fact as discussed above, it
emerges that his involvement in the crime is not fully established. No overt act has been assigned to
him, therefore, appellant Suresh deserves benefit of doubt.

42. As it has come in evidence that the appellants had reached at the place of occurrence
together and they caught hold of Nandu and when he tried to escape, appellant Dinesh attacked him
with a knife and that injury was fatal causing his death, therefore, the above said act of appellant
Dinesh with other co-accused Madan Lal (since deceased) goes to show that they arrived at the
place of incident pre-planned sharing common intention, but as there is no evidence against coappellant Suresh and Mahesh (since deceased) and the evidence is only against appellant Dinesh
and Madan Lal (since deceased), therefore, from the above discussion, this Court comes to the
conclusion that the appellant Dinesh is guilty of committing culpable homicide not amounting to
murder, therefore, he has been rightly convicted and sentenced by the learned Trial Court.

43. So far as surviving appellant Suresh is concerned, the prosecution has failed to prove
his involvement in the said crime and the charge against him is not proved beyond reasonable
doubt, therefore, he deserves to be acquitted of the offence under Section 304(2) read with 34 IPC.

44. In view of the above discussion, this appeal is allowed in part, and impugned
judgement and order dated 22.01.1985, convicting and sentencing appellant, Suresh, under Section
304 (Part 2) read with Section 34 IPC is set aside and the said appellant is acquitted of the charge
under Section 304 (Part 2) read with Section 34 IPC. He is on bail. His bail bonds and personal
bonds are cancelled and the sureties discharged. He need not surrender.

45. The appellant Suresh shall execute a personal bond in the sum of Rs.25,000/- under
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 437-A of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code of Criminal Procedure, 1973) for his appearance, in the event of an appeal being preferred
against his acquittal.

46. In so far as appellant Dinesh is concerned, this appeal is dismissed on his behalf. He is
found guilty of the offence punishable under Section 304 (Part 2) IPC and his conviction and
sentence passed by the Trial Court is upheld. Appellant Dinesh is on bail. His bail bonds and
personal bonds are cancelled and the sureties discharged. He is directed to surrender before the
learned Trial Court within four weeks from today to undergo the remaining part of his sentence,
failing which, the Trial Court is directed to adopt coercive measures for securing his presence.

47. Let a copy of this order be forwarded to the Trial Court concerned along with the Trial
Court record for information and necessary compliance.
---------
(2026) 4 ILRA 1034
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.04.2026

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 348 of 1986

Kanhaiya & Ors. ...Appellants
Versus
State ...Respondent

Issue for consideration
Matter pertains to legality of judgment of conviction under Sections 147, 148, 149, 307, 324, 323, 452 IPC.

Headnotes
Law of punishment-Six named accused-appellants-five have already passed away -appeal is abated against
them-Appellant -Chhotoo is sole surviving appellant- conviction recorded- as part of unlawful assembly- having
the common object of inflicting injuries-established beyond the shadow of doubt-Conviction confirmed-
incident occurred 42 years back-nothing on record to show that the accused was a habitual criminal- sentence
awarded to surviving Appellant -reduced to the period already undergone by him- sentence modified. Appeal
dismissed. (E-9)

Case Law Cited
1. State of Madhya Pradesh Vs. Bablu, (2014) 9 SCC 2811
2. Abdul Waheed Vs. State of Uttar Pradesh, (2016) 1 SCC 583
3. Labh Singh and Others v. State of Haryana, 2012 LawSuit (SC) 255
4. State of U.P. v. Sita Ram and Another, 2010 LawSuit (SC) 897
5. George Pon Paul v. Kanagalet and Others, 2009 LawSuit (SC) 795
6. Manjappa State of Karnataka, 2007 LawSuit (SC) 706

List of Acts
The Indian Penal Code, 1860