# Kaushal @ Alok Chauhan v. State of U.P

- **Citation:** (2025) 9 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-16
- **Case number:** Criminal Appeal No. 3211 of 2012
- **Bench:** Siddharth, Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-alok-chauhan-v-state-of-u-p-53883
- **Pages:** 10

## Headnote

Govt. Advocate

Issue for Consideration
The case involves murder took place during the
marriage ceremony. The main issue required
the
appellate
court
to
determine
the
trustworthiness of evidence.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 302 r/w 34-Challenge
to-Conviction-testimony of the witnesses
cannot be discarded merely because they
are relative or family member of the
victim-The presence of the father (PW-1)
and
brother(PW-2)
at
the
marriage
ceremony was deemed probable, and their
consistent testimony as eye-witness was
accepted-the appellant's act along with
9 All. Kaushal @ Ajay Chauhan Vs. State of U.P.
181
the co-accused, established a "common
intention" to commit murder, thus holding
him liable for conviction u/s 302 IPC,
regardless of who fired the fatal shot. The
appeal dismissed.
Held
The court considered the entire evidence on
record-The matter pertains to direct evidence,
where motive attributed on the accused of
helping co-accused in the design to exterminate
the deceased -On the point of conversion of
conviction of appellant from section 302 IPC to
Section 304 IPC refused as the act attributed on
accused appellant was intentional and also
having knowledge that by the act death would
be caused- No infirmity in appreciation of
evidence carried out by the trial court.(Para 11
to 33)

Case law Cited
Goverdhan & Anr. Vs State of Chattisgarh &
Shyam Behari Mishra & Anr Vs State of U.P.,
Gowrishankara Swamigalu Vs State of Karnataka
& Anr., Jitendra Kumar Mishra alias Jittu Vs
State of M.P.,Ashok Kumar Chaudhary Vs State
of Bihar,M.Nageswara Reddy Vs State of A.P. &
Ors& State of Punjab Vs Gurupreet Singh & Orsreferred to.

List of Acts
Criminal Procedure Code, 1973-Section 374(2)-
Indian Penal Code,1860.

List of Keywords
Motive, direct evidence, deceased, co-accused,
exterminate,
infirmity,
common
intention,
charge sheet, absconding, "one fire arm",
gunshot
injury,
morturay,
liqour,
crossexamination,
affidavits,
incident,
bullet
detrimental, marriage ceremonies,ingredients.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 3211 of 2012
From the Judgment and Order dated 16.09.
2025 of the High Court of Judicature at
Allahabad.
Kaushal @ Alok Chauhan Vs. State of U.P.

Appearances for Parties
Counsel for Appellant(s)
Sudeep Kumar Pathak
Counsel for Respondent(s)
Govt. Advocate

## Text

180 INDIAN LAW REPORTS ALLAHABAD SERIES
present case, this Court, in exercise of its
powers under Sections 374/389 Cr.P.C.,
allows the present appeal and quash the
impugned judgment of conviction dated 8th
December, 1987 passed by the Special
Judge (E.C. Act), having regard to the
contents of the compromise so entered into
between the parties, the nature of the
offence and injuries sustained by the
complainant, the period of incident i.e.
1983, the fact that there is nothing on
record to evince that either before or after
the purported compromise, any untoward
incident transpired between the appellant
no.1 and the complainant, both are living
together happily as husband and wife and
also looking to the fact that they are senior
citizens and their children have attained
majority.

44.
Consequently,
the
impugned
judgment and order dated 8th December,
1987 passed by the Special Judge (E.C.
Act) in Sessions Trial No. 376 of 1984
(State Vs. Pramod Kumar & 2 Others)
under Sections 307 and 307/34 I.P.C.,
Police Station-Zarifnagar, District-Budaun
is set aside on the basis of compromise so
entered between the appellant no.1 and the
victim/complainant, who are none other
than the husband and wife. Hence, the
appellant no.1 is acquitted from the charge
so altered by this Court herein above i.e.
Section 324 I.P.C.

45. Since the appellant no.1 is reported
to be on bail, he needs not surrender before
the court below, unless he is wanted in any
other case on compliance of the provisions
of Section 437-A Cr.P.C. His bail bond
shall be deemed to have been discharged.

46. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Budaun,
henceforth, for necessary compliance.

47. Subject to the observations made
above, the present criminal appeal is
allowed.

48. There shall be no order as to costs.

49. The original records already
summoned shall be returned to the
concerned court below.
----------
(2025) 9 ILRA 180
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2025

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 3211 of 2012

Kaushal @ Alok Chauhan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sudeep Kumar Pathak

Counsel for the Respondent:
Govt. Advocate

Issue for Consideration
The case involves murder took place during the
marriage ceremony. The main issue required
the
appellate
court
to
determine
the
trustworthiness of evidence.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 302 r/w 34-Challenge
to-Conviction-testimony of the witnesses
cannot be discarded merely because they
are relative or family member of the
victim-The presence of the father (PW-1)
and
brother(PW-2)
at
the
marriage
ceremony was deemed probable, and their
consistent testimony as eye-witness was
accepted-the appellant's act along with
9 All. Kaushal @ Ajay Chauhan Vs. State of U.P.
181
the co-accused, established a "common
intention" to commit murder, thus holding
him liable for conviction u/s 302 IPC,
regardless of who fired the fatal shot. The
appeal dismissed.
Held
The court considered the entire evidence on
record-The matter pertains to direct evidence,
where motive attributed on the accused of
helping co-accused in the design to exterminate
the deceased -On the point of conversion of
conviction of appellant from section 302 IPC to
Section 304 IPC refused as the act attributed on
accused appellant was intentional and also
having knowledge that by the act death would
be caused- No infirmity in appreciation of
evidence carried out by the trial court.(Para 11
to 33)

Case law Cited
Goverdhan & Anr. Vs State of Chattisgarh &
Shyam Behari Mishra & Anr Vs State of U.P.,
Gowrishankara Swamigalu Vs State of Karnataka
& Anr., Jitendra Kumar Mishra alias Jittu Vs
State of M.P.,Ashok Kumar Chaudhary Vs State
of Bihar,M.Nageswara Reddy Vs State of A.P. &
Ors& State of Punjab Vs Gurupreet Singh & Orsreferred to.

List of Acts
Criminal Procedure Code, 1973-Section 374(2)-
Indian Penal Code,1860.

List of Keywords
Motive, direct evidence, deceased, co-accused,
exterminate,
infirmity,
common
intention,
charge sheet, absconding, "one fire arm",
gunshot
injury,
morturay,
liqour,
crossexamination,
affidavits,
incident,
bullet
detrimental, marriage ceremonies,ingredients.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 3211 of 2012
From the Judgment and Order dated 16.09.
2025 of the High Court of Judicature at
Allahabad.
Kaushal @ Alok Chauhan Vs. State of U.P.

Appearances for Parties
Counsel for Appellant(s)
Sudeep Kumar Pathak
Counsel for Respondent(s)
Govt. Advocate

(Delivered by Hon'ble Avnish Saxena, J.)

1. The present appeal is preferred
against the judgment of conviction and
sentence dated 09.07.2012 passed by the
court of Additional Sessions Judge, Court
No.2, Etawah in Sessions Trial No.59 of
2006 (State Vs. Kushal alias Alok Chauhan
S/o Krishan Chandra Chauhan), in Case
Crime No.383 of 1997, Police Station
Kotwali, District Etawah, under Section
302 read with Section 34 of I.P.C.

2. The accused-appellant is punished
with imprisonment for life and Rs.10,000/-
fine, in default, two years additional
imprisonment for committing the offence
of murder committed in furtherance of
common intention.

3. According to First Information
Report (F.I.R.), two accused, namely,
Deepak Dixit alias Deepu S/o Hari Om and
Kaushal alias Alok Chauhan (appellant) have
been named in the F.I.R. lodged by Sri
Sunder Lal Gupta, father of deceased
Kamlesh Kumar Gupta for offence under
Section 307 I.P.C., when both the accused
had fired at the deceased through their
country made pistol on 13.07.1997 at 11:00
p.m., while the deceased, informant and other
persons were gathered at the marriage
ceremony of sister of Shailesh Kumar alias
Popey Jain solemnized at Jain Dharmshala
Lalpura, Etawah. The deceased was standing
at the gate of Jain Dharmshala when the two
accused, named above came and opened fire
at Kamlesh Kumar Gupta, he was taken to
hospital by his father and brother after
visiting the police station, situated at a
distance of half a kilometer from the place of
incident. In the district hospital, Etawah, the
accused was declared brought dead.
182 INDIAN LAW REPORTS ALLAHABAD SERIES

4. After investigation, the charge sheet
has been submitted only against the present
appellant, but not against the accused
Deepak Dixit alias Deepu, who has been
summoned by the trial court by order dated
24.03.2007 for offence under Section 302
I.P.C., invoking Section 319 Cr.P.C. This
accused remained absconding and his file
was separated.

5. The prosecution has produced two
witnesses of fact, P.W.-1 Sunder Lal Gupta
and
P.W.-2
Shailesh
Kumar
Gupta,
respectively, the father and brother of
deceased.

6. The prosecution has produced five
formal witnesses. P.W.-3 Constable Bhaiya
Lal was the constable clerk (the scribe of
Chik F.I.R. and G.D); P.W.-4 S.I. Subedaar
Singh, the first Investigating Officer, who has
also conducted inquest on the death body of
deceased; P.W.-5 Inspector Karanvir Singh
Sachan, the second Investigating Officer,
who has carried out further investigation and
submitted charge sheet; P.W.-6 Dr. P.C.
Pandey, who has informed the police station
concerned about the death of deceased; and
P.W.-7 Jagdish Chandra Gupta, the Nursing
Assistant of District Hospital, where Dr. S.C.
Dubey (deceased) has conducted post
mortem examination.

7. The statement of accused has been
recorded under Section 313 Cr.P.C.,
wherein he has denied the allegation of
murder on him; stated that he has been
falsely
implicated
and
the
entire
documentary evidences are false; showed
ignorance as to why he has been implicated
in the case as his name is not Kaushal, but
Alok Chauhan.

8. Sri Sudeep Kumar Pathak, learned
counsel for the appellant has submitted that
there is no evidence on record of the trial to
connect the appellant for offence of murder
in furtherance of common intention. The
appellant is known by the name of Alok
Chauhan and never known by the name of
Kaushal; the F.I.R. and the statement of
witnesses recorded during investigation is
silent about the role of named accused who
caused detrimental fire; the evidence on the
record shows enmity of deceased with coaccused Deepak Dixit, but no enmity is
shown against the appellant; the main
accused Deepak Dixit has not been charge
sheeted; the witnesses of fact are related
witnesses and shaky in their statements
about knowing Kaushal prior to the lodging
of F.I.R.; there is marked improvement in
the statement of witnesses; the witnesses of
fact initially stated that they later came to
know that Kaushal is also known by the
name of Alok Chauhan; the witnesses of
fact are not the eye witnesses, but
pretended to be the eye witnesses and
therefore, they have continuously made
improvements in their statements on the
basis of tutoring; the medical evidence does
not corroborate with the eye witness
account; the Investigating Officer initially
raised doubt on Popey Jain, who has certain
trade related issues with the deceased;
during investigation, some of the witnesses
have also stated through affidavits that it
was an accident during the celebratory
firing at the marriage ceremony; the
appellant is in custody for nearly 12 long
years, having no criminal history. The
above mentioned points have not been dealt
with by the trial judge in right perspective,
resultant into recording of conviction. It is
further submitted that the witnesses of fact
are
interested
witnesses
and
their
statements
have
to
be
appreciated
cautiously, but the trial Judge has not
evaluated the statements of witnesses of
fact cautiously. The learned counsel has
9 All. Kaushal @ Ajay Chauhan Vs. State of U.P.
183
relied on the cases of Goverdhan and
another Vs. State of Chattisgarh1 and
Shyam Behari Mishra and another Vs.
State of U.P.2, decided by the Division
Bench of this Court by judgment dated
24.03.2023 in Criminal Appeal No.1092 of
2005.

9. Per contra, Sri Sushil Kumar
Pandey, learned A.G.A.-I has opposed the
arguments made by the learned counsel for
the appellant and submits that the murder
of Kamlesh Kumar Gupta was occasioned
in full public view, when the people were
gathered at the marriage ceremony of sister
of Sri Shailesh alias Popey Jain at the gate
of Jain Dharmshala Lalpura, Etawah. The
incident has been witnessed by many
persons, but none came forward to depose
before the Court, except the father and
brother of deceased. The assailant, namely,
Deepak Dixit alias Deepu and his friend
Kaushal, who had their residences in the
same vicinity were being identified by the
persons including P.W.-1 and P.W.-2. The
accused-appellant, who has been identified
during dock examination was familiar in
the locality. It is not necessary that the
correct name is known to all, as the persons
are generally known by their nick names.
The appellant, in the same way also known
by the name of Kaushal and when the name
of accused was clear, his name is
mentioned accordingly. Deceased Kamlesh
was shot at the gate of Jain Dharmshala on
13.07.1997 at 11:00 p.m., which is reported
on 14.07.1997 at 00:20 a.m. and died due
to gunshot injury, is apparent from the post
mortem examination report. The main
accused, though dropped after investigation
has been summoned by the trial court under
Section 319 Cr.P.C. The trial Judge has
rightly appreciated the evidence and
recorded conviction, which is required to
be affirmed in appeal.

10. We have considered the rival
submissions made by the parties. Perused
the judgment passed by the trial court vis-avis the evidence on record.

11. After venturing into the facts,
evidence
and
arguments,
we
have
considered the power of the appellate court
provided under Section 386 Cr.P.C. in the
case of Gowrishankara Swamigalu Vs.
State of Karnataka and Another3, it has
been held by the Supreme Court that the
powers to be exercised by an Appellate
Court are as wide as of the trial court. The
Appellate Court can review the whole
evidence and all relevant circumstances to
arrive at its own conclusion about the guilt
or innocence of the accused, but where two
views are possible on same evidence and
the findings recorded by the trial court are
not perverse, the appellate court should not
interfere with the findings of the lower
court.

12. Thus, the appellate court, firstly, to
appreciate the evidence on record; and
secondly, should interfere with the findings
only when the view of appellate court is
different from the trial court. Coupled with
the observation that the finding recorded by
the trial court is perverse.

13. It is also observed by the Supreme
Court in the case of Jitendra Kumar
Mishra alias Jittu Vs. State of M.P.4 that
the appellate court should be slow in
interfering with conviction recorded by the
trial court, but where evidence on record
indicates that the prosecution has failed to
prove
the
guilt
of
accused
beyond
reasonable doubt and that is a plausible
view, different from the one expressed by
the trial court, can be taken. The appellate
court then should not shy away in giving
benefit of doubt to the accused.
184 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Keeping in view the above
principles of law in mind, we have
evaluated the facts and evidences. The
incident occurred on 13.07.1997 at 11:00
p.m., at the gate of Jain Dharmshala
Lalpura, Etawah. The police station is
reportedly situated half a kilometer away
from place of incident. The informant Sri
Sunder Lal Gupta (P.W.-1), father of
deceased had taken the deceased first to the
police station from where to the District
Sadar
Hospital
Etawah.
The
first
information report was lodged under
Section 307 I.P.C. at Police Station
Kotwali, Etawah on 13.07.1997 at 11:40
p.m., registered as Case Crime No.383 of
1997.

15. The written information is dictated
by the informant to one, Ram Prakash
Gupta. It is disclosed in the written
information that the informant, Sunder Lal
Gupta, his son Kamlesh Kumar Gupta
(deceased), his another son Shailesh Kumar
Gupta, Arvind Verma S/o Ram Pal Verma,
Kuldeep Gupta S/o Jagdish Prashad had
gathered in the marriage ceremony of sister
of Shailesh alias Popey Jain at Jain
Dharmshala Lalpura Etawah. While the
marriage ceremony 'Jaimala' was taking
place, informant's son was standing at the
gate of Dharmshala, when two accused
namely, Deepak Dixit S/o Hari Om Dixit
resident of Lalpura and his friend Kaushal
came to the place, having country made
pistols in their hands and opened fire at
Kamlesh Kumar Gupta. He skipped one
fire but suffered injury in his abdomen by
another fire. Both the accused have sprinted
away. It is also disclosed in the F.I.R. that
Deepak Dixit and his family were inimical
with Kamlesh Kumar.

16. Dr. P.C. Pandey (P.W.-6) gave a
report to the police on 14.07.1997, Exhibit
Ka-11
that
Kamlesh
Kumar
Gupta
succumbed to gunshot injuries at 00:20
a.m. It is on the basis of this report that the
case is converted from Section 307 I.P.C.
to Section 302 I.P.C.

17. It is required to be mentioned that
the matter was of 1997, whereas the charge
sheet has been submitted against the
accused-appellant in the year 1997, but the
trial commenced in the year 2006, as the
accused-appellant was found absconding
and process under Sections 82 and 83
Cr.P.C. have been initiated. The contention
of the appellant for not appearing in the
case was that his name is Alok Chauhan
and not Kaushal. He then challenged the
proceedings initiated against him under
Section 83 Cr.P.C. in Criminal Misc.
Application
No.7484
of
1997
(Alok
Chauhan Vs. State of U.P.). This Court
while disposing of the application by order
dated
26.11.1997
has
made
specific
mention
that
the
Magistrate
before
proceeding to pass any order under Section
83 Cr.P.C. shall satisfy whether any
evidence has been collected to show the
involvement of accused-appellant in the
case. It is, thereafter, that the charge sheet
has been submitted, trial concluded and
judgment of conviction recorded.

18. The judgment of conviction is also
challenged on the ground that the witnesses
of fact are related witnesses, whose
testimony is to be considered carefully. It is
a settled position of law that the testimony
of witness in a criminal trial cannot be
discarded merely because the witness is a
relative or family member of the victim. In
such cases, Court has to adopt a careful
approach in analyzing the evidence and if
the testimony of related witness is found
credible, the accused can be convicted. In
the celebrated case of Ashok Kumar
9 All. Kaushal @ Ajay Chauhan Vs. State of U.P.
185
Chaudhary Vs. State of Bihar5, it is
observed by the Supreme Court that the
Court cannot lose sight of the ground
realities that the members of the public are
generally insensitive and reluctant to come
forward to report and depose about the
crime, even though it is committed in their
presence. It is in this backdrop that the
Supreme Court has held, not to brushed
aside the testimony of the related witnesses,
merely because they are interested, but a
duty is cast on the court to scrutinize such
evidence with greater care and caution.
This judgment is also considered by the
trial court. The law on the point of related
witness is also dealt with by the Supreme
Court in the cases of M. Nageswara
Reddy Vs. State of Andhra Pradesh and
others6 & State of Punjab Vs. Gurpreet
Singh and others7, wherein, it is held that
the testimony of the witness cannot be
discarded merely because the witness is
related.

19. Before considering the deposition
made by father and brother of deceased, as
P.W.-1 and P.W.-2, respectively, it would
be expedient to deal with the testimonies of
formal
witnesses
and
then
the
trustworthiness of witnesses of fact could
be ascertained.

20. The first information report was
registered by P.W.-3 Bhaiya Lal, who has
deposed before the trial court that on
13.07.1997, he was holding the post of
Constable Clerk in Police Station Kotwali,
District Etawah when Sunder Lal Gupta
(P.W.-1) came with a written information,
written by Ram Prakash Gupta that Deepak
Dixit alias Deepu and Kaushal had inflicted
gun shot injuries on the son of informant,
he registered the chik F.I.R. for offence
under Section 307 I.P.C. He has also
proved the general diary entry no.52 at
23:40 hours, he has been cross examined
on various points to carve out a case of ante
time F.I.R. It is mentioned in Exhibit Ka-3,
the general diary entry that the injured was
sent to District Hospital for medical
examination and the injuries of injured
were seen, from which blood was oozing
out. The document and the statement of
P.W.-3 clarifies that the deceased was first
taken to police station and then to District
Hospital, as has been mentioned in the
written information.

21. Dr. P.C. Pandey, who was the
Emergency Medical Officer of Dr. B. R.
Ambedkar
Combined
Hospital
(Male
Section), Etawah has appeared in the case
as P.W.-6 and proved the death report of
the deceased Kamlesh Kumar Gupta as
Exhibit Ka-11. It is specifically mentioned
in the exhibit that Kamlesh Kumar Gupta
aged about 30 years s/o Sunder Lal Gupta
reached the emergency on 14.07.1997 at
00:20 a.m., brought by Constable Radha
Charan of Police Station Kotwali, Etawah,
who had gunshot wound and was brought
dead. This intimation was received at the
police station at 5:50 a.m. on 14.07.1997.
S.I. Subedaar Singh P.W.-4 has made
specific mention in his deposition that on
getting the death report of deceased, the
case was converted from Section 307 I.P.C.
to 302 I.P.C. This witness has conducted
inquest on the death body of deceased,
which was carried out from 11:15 a.m. to
1:00 p.m. on 14.07.1997. He has proved the
inquest
report
and
other
ancillary
documents like photonash, chalanash, letter
R.I. and letter C.M.O. He carried out
inquest in presence of inquest witnesses, in
whose opinion, the death was due to
gunshot injury. The body was sealed and
sent for post mortem examination, which
was kept at the District Mortuary by P.W.-6
Dr. P. C. Pandey.
186 INDIAN LAW REPORTS ALLAHABAD SERIES

22.
Dr.
S.C.
Dubey,
who
has
conducted the post mortem examination on
the death body of deceased Kamlesh
Kumar Gupta on 14.07.1997 at 2:00 p.m.,
passed away when the case came up for
trial. Hence, Jagdish Chandra Gupta (P.W.-
7) the Nursing Assistant, who had assisted
him during post mortem examination has
proved the post mortem report as secondary
witness stating that Dr. S.C. Dubey has
conducted post mortem examination on the
dead body of deceased Kamlesh Kumar
Gupta and signed the post mortem
examination report in his presence. He has
identified the signatures and proved the
same. The post mortem report reveals that
the ante mortem injury is "one fire arm
wound of entry 2 cm X 2.2 cm on front of
lateral aspect of lower and lateral aspect of
right side from chest about 8 cm below and
lateral
from
right
nipple.
Mark
of
blackening, tattooing and charring present
all around the wound in an area of 10 cm X
8 cm. Margins are inverted"

23. If the statement of Constable
Bhaiya Lal (P.W.-3), Dr. P.C. Pandey
(P.W.-6), Jagdish Chandra Gupta (P.W.-7)
and the initial statement of S.I. Subedaar
Singh (P.W.-4) is taken into consideration
in totality. It reflects only one conclusive
inference that Kamlesh Kumar Gupta
suffered gunshot injury at night of
13.07.1997, who was taken to the police
station, where he was found to be suffering
from gunshot injury, blood was oozing out
from the wound, then taken to the District
Hospital, treated by Dr. P.C. Pandey (P.W.-
6) and found that he was brought dead. Had
there been an ante time F.I.R., the F.I.R.
would have been lodged directly under
Section 302 I.P.C. against the accused and
not under Section 307 I.P.C. The learned
trial
court
has
rightly
taken
into
consideration and held that the F.I.R. is
within time without oblique motive of false
implication. One more conclusive inference
drawn is the death of Kamlesh Kumar
Gupta was due to gunshot injury.

24. S.I. Subedaar Singh, the first
Investigating Officer was entrusted with the
investigation of the case on 13.07.1997, he
has inspected the place of incident,
prepared the site plan. The site plan was
prepared by him on 15.07.1997, at the
instance of informant, Sunder Lal Gupta
(P.W.-1). He has also recorded the
statement of Shailesh Kumar Gupta (P.W.-
2). The site plan proved by him as Exhibit
Ka-9 which reveals that the deceased was
standing at the gate of Jain Dharmshala
marked by english alphabet 'A'. The
witnesses,
P.W.-1
and
P.W.-2
were
standing at a place marked by english
alphabet 'C'. It is shown that the accused
had fired shots at a distance of two paces,
the place of accused is shown by english
alphabet 'B' and distance between the
witness and the accused was five paces.
During his cross-examination, he has stated
that he came to the spot on 13.07.1997 five
to seven minutes before 12:00 at night,
where he found Ratan Chandra Jain,
Rakesh, Suresh, Vinod alias Pappu and
Popey. Marriage was of their sister. He has
further stated that he came to know that
there was some differences between
deceased Kamlesh Kumar Gupta and Popey
as both were partners in a business and
thereafter, he thought it necessary to take
statement
of
Popey.
This
angle
of
investigation shows that the Investigating
Officer has also taken into consideration
the relation between deceased and Popey in
whose sister's marriage, the deceased and
his family gathered. This further shows the
presence of witnesses P.W.-1 and P.W.-2 at
the place of incident. His inconsistent
statement about the time of inquest will not
9 All. Kaushal @ Ajay Chauhan Vs. State of U.P.
187
make this witness untrustworthy because
later on he has made specific mention that
the inquest was started at 11:15 a.m.
instead of 7:15 a.m.

25. The second Investigating Officer
Karnavir Singh Sachan (P.W.-5), who has
carried out investigation from 20.08.1997
has recorded statements of witnesses. He
has submitted charge sheet against the
accused. During his cross-examination, he
has made specific mention that on the basis
of direction of the High Court, he inquired
into and found that Alok Chauhan is also
known by the name of Kaushal and further
submits that he did not find it necessary to
get the accused identified by the witnesses,
as the accused resides in the same vicinity
and known to persons. In his further crossexamination, he has stated that Rajesh and
Neeraj gave affidavits disclosing therein
that Kamlesh Kumar Gupta was in the
influence of liquor, which led the fire from
315 bore pistol. The statement of this
witness shows that the accused is known by
the name of Kaushal. The deponents Rajesh
and Neeraj did not appear as witnesses
during trial. Moreover, the deceased under
influence of liquor is not revealed from
medical evidence. Neither Dr. P.C. Pandey
(P.W.-6) nor the post mortem examination
report Exhibit Ka-12 reveals that the
deceased was under the influence of liquor.
Not in defense either.

26. Therefore, the statements of formal
witnesses have established the place of
incident, the time of incident and the
presence of witnesses in the marriage
ceremony.

27. Now, the point of concern is the
trustworthiness of related witnesses and the
involvement of accused-appellant, who has
been convicted and sentenced for offence
under Section 302 read with Section 34
I.P.C. It is pertinent to point out here that
the co-accused, as per the record placed, is
still absconding.

28. Sri Sunder Lal Gupta, P.W.-1,
father of deceased has lodged the F.I.R. His
presence at the place of incident is not
disputed, as he and his family members
consisting of deceased and P.W.-2 were
gathered in the marriage ceremony. He has
witnessed the incident and is a probable
witness. It is a general tendency that when
the family visits marriage ceremonies, they
tend to be together. The accused Deepak
Dixit and Kaushal have been named in the
F.I.R., which is prompt. The name of
Kaushal is mentioned in F.I.R., as per the
name disclosed by the people gathered at
the place, but during investigation, the real
name of Kaushal came into light and
therefore the charge sheet has been
submitted. During the cross examination,
this witness has admitted giving an
affidavit to the police and further submits
that the Investigating Officer has not
recorded
his
statement,
though
his
statement has been recorded by the first
Investigating Officer P.W.-4 S.I. Subedaar
Singh and it is at his instance that the site
plan was prepared. Merely giving an
affidavit to the police by a witness cannot
nullify the statement recorded by the
Investigating Officer, when the witness is
stating before the trial court about the
incident. Moreover, the informant was
present at the place of incident, he has seen
the incident, he has reported the incident
without delay and he knew the accusedappellant prior to the incident though he
was not clear about the name of accusedappellant.

29. Shailesh Kumar Gupta (P.W.-2)
has also stated in his examination-in-chief
188 INDIAN LAW REPORTS ALLAHABAD SERIES
that he was present at the place of incident
along with other persons and witnessed the
incident,
wherein
Deepak
Dixit
and
Kaushal (who has been identified in the
dock examination), had opened fire on
Kamlesh Kumar Gupta. One bullet hit the
deceased, whereas his brother skipped the
second fire. He has also stated that Deepu
fired first, which was skipped and the
deceased suffered the second fire, which
was shot by the accused-appellant. In his
cross-examination,
this
witness
has
admitted that he has not made the statement
before the Investigating Officer as to who
had fired the first shot and also about the
detrimental shot was fired by the accusedappellant. This statement of this witness is
an improvement because it is nowhere the
case even in the affidavit filed by this
witness that the detrimental shot has been
fired by the accused-appellant, but this
improvement will not absolve the accusedappellant from his role of firing at the
deceased. The evidence on record reveals
that the accused-appellant came to the
place of incident along with co-accused and
fired a shot. It is therefore, the conviction
has been recorded with the help of act
committed by the accused-appellant in
furtherance of common intention. As such,
it is not of importance that who has fired
the detrimental shot. This witness during
his cross-examination has also stated that
the fire was shot at his brother from a
distance of ten paces. It has been argued by
the learned counsel for the appellant that
blackening, tattooing and charring are not
possible if the fire was shot from a distance
of ten paces. According to the site plan, the
accused shot at the deceased from a
distance of two paces. The laymen can
never be sure about the distance until and
unless
it
has
been
measured.
The
inconsistency in the statement of P.W.-2
Shailesh Kumar Gupta is not material in
nature.

30. As such, the witnesses of fact are
not only trustworthy and consistent in their
statements, but their presence at the place
of incident is also probable and they are the
eye witnesses of the incident. They have
also established the identity of the accusedappellant and his role of firing at the
deceased.

31. We have considered the entire
evidence on record, which are clinching in
nature. The matter pertains to direct
evidence, where the motive, though at the
back stage, but attributed on the accusedappellant of helping the co-accused in the
design to exterminate the deceased. The
trial court has considered the entire
evidence in right perspective. There is no
infirmity in appreciation of evidence
carried out by the trial judge. It is rightly
held that the offence of murder is
committed by the accused-appellant in
furtherance
of
common
intention.
Therefore, we did not find any reason to
interfere with the findings of the trial court.
The grounds raised in the appeal are not
tenable in the eyes of law. The appeal
deserves to be dismissed.

32. We have also considered the
arguments of learned counsel for appellant
on the point of conversion of conviction of
appellant from Section 302 I.P.C. to
Section 304 I.P.C. and also gone
through the judgments cited, but the
evidence in the present case does not
qualify the ingredients of Section 304
I.P.C., as the act attributed on accusedappellant was intentional and also
having knowledge that by the act death
would be caused.
9 All. Krishna Rastogi Vs. State of U.P. & Anr.
189

33. Thus, the appeal is dismissed. The
accused appellant is on bail. His bail bonds
are forfeited. He is directed to be taken into
custody.

34. The judgment of this Court along
with the record shall be sent to the Trial
Court for taking necessary steps so that the
accused-appellant may surrender and serve
the remaining sentence.
----------
(2025) 9 ILRA 189
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2025

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 4197 of 2025

Krishna Rastogi ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Deepak Kumar

Counsel for the Respondents:
G.A., Praveen Kumar

Issue for Consideration
The appeal was filed to set aside the order
dated 10.04.2025. The allegation was that the
appellant along with the co-accused persons,
called the victim's son and caused his murder.

Headnotes
A. Criminal matter-Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities
Ac),1989-Section 14-A(2), 3(2)5-Bhartiya
Nayay
Sanhita,2023-Sections
103(1),
3(5), 191(2), 190, 61(2) and section 35 of
Arms Act-The court applied that general
principles governing the grant of bailConsidering the facts and circumstances,
the nature of offence, complicity of the
accused, nature of injury, evidence, role
assigned to the present appellant, a case
for bail was made out.
Held
The court overruled the lower court decision,
finding that despite serious charges, includng
those under SC/ST Act, the established legal
criteria for granting bail were met in the
appellant's favour.(Para 7 to 10) (E-6)

List of Acts
Scheduled
Castes
&
Scheduled
Tribes
(Prevention of Atrocities Act),1989, Bhartiya
Nayay Sanhita,2023, Arms Act.

List of Keywords
Charges, injuries, languishing in jail, prosecution
story, criminal history, impugned FIR, false and
fabricated,
release,
Dhampur,
independent
witness, complicity, community, victim,personal
bond,sureties, Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities Act),1989,
Bhartiya Nayay Sanhita,2023, Arms Act.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 4197 of 2025
From the Judgment and Order dated 11.09.2025
of the High Court of Judicature at Allahabad.
Krishna Rastogi Vs. State of U.P. & Anr.

Appearances for Parties
Counsel for Appellant(s)
 Deepak Kumar
Counsel for Respondent(s)
G.A., Praveen Kumar

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. In this case notice has already been
served upon the informant.

2. The present criminal appeal under
Section 14-A(2) Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)
Act has been filed by the appellantKrishna Rastogi to set aside the order
dated 10.04.2025 in Bail Application No.
1837 of 25 and to release him on bail in
Case Crime No.564 of 2024 under Sections