# Kishan Lal & Ors v. State of U.P

- **Citation:** (2026) 2 ILRA 1016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-26
- **Case number:** Criminal Appeal No. 1330 of 1989
- **Bench:** Salil Kumar Rai, Vinai Kumar Dwivedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-lal-ors-v-state-of-u-p-54092
- **Pages:** 12

## Text

1016 INDIAN LAW REPORTS ALLAHABAD SERIES

50. Consequently, for all the foregoing reasons, the instant criminal appeal is allowed.

51. The appellants'Jaggu Kol and Shankar @ Sheo Shankar are already on bail. His bail bonds
shall stand discharged.

52. The trial court record be sent back.
---------
(2026) 2 ILRA 1016
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2026

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE VINAI KUMAR DWIVEDI, J.

Criminal Appeal No. 1330 of 1989

Kishan Lal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Issue for consideration
Matter pertains to ingredients of Section 302 read with Section 34 IPC.

Headnotes
Indian Penal Code-Section 302 - murder - PW-1 and PW-2 have turned hostile - not supported the
prosecution case - only eye-witness of the alleged incident is the informant- the evidence of the sole is wholly
reliable - the postmortem report clearly establishes that the deceased sustained thirteen injuries on vital parts
of the body - strong motive of the accused-appellants to commit the murder - acted with pre-planning,
premeditation, and actively participated in the commission of alleged crime - ingredients of Section 34 of
Indian Penal Code are fully established .Appeal dismissed. (E-9)

Case Law Cited
1. Ashok Kumar v. State of Punjab; AIR 1977 Supreme Court 109
2. Babulal Bhagwan Khandare v. State of Maharashtra; AIR 2005 Supreme Court 1460
3. Virendra Singh v. State of M.P.; (2010) 8 SCC 407

List of Acts
1. Indian Penal Code
2. Code of Criminal Procedure

List of Keywords
Murder; sole eyewitness; turned hostile; thirteen injuries on vital parts; strong motive; pre-planning;
premeditation; common intention.

Appearances of parties
Counsel for Appellant(s) : Raghuvansh Misra, Rahul Misra
Counsel for Respondent(s) : D.G.A.
2 All. Kishan Lal & Ors. Vs. State of U.P.
1017
(Delivered by Hon'ble Vinai Kumar Dwivedi, J. )

1. The present criminal appeal has been filed by the accused-appellants, namely, Kishan Lal
S/o Bhola Nath, Bhola Nath S/o Sewa Ram and Veerpal S/o Rameshwar against the judgment and
order of conviction and sentence dated 16.05.1989 passed by the learned Vth Additional District
and Sessions Judge, Pilibhit in Sessions Trial No. 33 of 1988 (Kishan Lal and Others v. State of
U.P.) arising out of Case Crime No. 338 of 1987, under Section 302 read with Section 34 I.P.C.,
Police Station- Bisalpur, District- Pilibhit.

2. By the impugned judgment and order of conviction and sentence dated 16.05.1989, the
learned Vth Additional District and Sessions Judge, Pilibhit held the accused-appellants guilty and
convicted them under Section 302 read with Section 34 I.P.C., sentencing each of them to undergo
imprisonment for life. Aggrieved by the judgment and order dated 16.05.1989, the accusedappellants have preferred the present criminal appeal before this Court.

3. From the written report (Exhibit Ka-1), the prosecution case is that on the date of the
incident, i.e. 23.10.1987, in the morning hours, the informant Ram Dayal (PW-5), along with his
elder brother, Indal was returning on a bicycle after meeting Mool Chand, the Gram Pradhan of
Village Gujranpur, which is situated 1/2 km away in the north direction from the village of
informant. Indal was riding the bicycle, while the informant Ram Dayal (PW-5) was seated on the
carrier. At about 10:00 a.m., when they reached the sugarcane field of Ramchandra Lal at Kulawa,
the accused persons suddenly emerged from the sugarcane field. Accused Kishan Lal S/o Bhola
Nath was armed with a sword; Bhola Nath S/o Sewa Ram, was armed with a kanta; and Veerpal
S/o Rameshwar Dayal, was also carrying a kanta in his right hand. The accused Bhola Nath
assaulted Indal with the kanta, proclaiming that they were taking revenge that day. The informant
Ram Dayal (PW-5), after jumping from the bicycle, ran away raising alarm that his brother was
being killed. Thereafter, all the three accused persons, acting with common intention and in
furtherance of a pre-concerted plan, assaulted Indal with kanta and sword with the intention to
cause his death. As a result of the said assault, Indal died on the spot and his head was severed from
his body. Hearing the cries of the informant, Omkar and Ramlal, residents of the village, rushed to
the spot and witnessed the accused persons committing the murder of Indal, brother of the
informant. When they raised alarm and challenged the accused persons, they after leaving the dead
body at the spot, fled towards the northern direction. It is further stated in the written report that
Omkar S/o Bhola Nath was murdered in the year 1981, in which Indal, brother of the informant
Ram Dayal was named as an accused. He faced trial in the said case and was convicted and
sentenced to four years' imprisonment. His appeal was pending and he was on bail. On account of
the said previous enmity, the accused persons committed the murder of brother of the informant.

4. After lodging of the written report (Exhibit Ka-1), a First Information Report (Exhibit Ka13) was registered at Police Station Bisalpur against the named accused persons, namely, Kishan
Lal S/o Bhola Nath, Bhola Nath S/o Sewa Ram and Veerpal S/o Rameshwar, as Case Crime No.
338 of 1987, under Section 302 IPC, on the date of the incident itself at about 2:00 p.m. After
registration of the FIR, the investigation was entrusted to S.I. Tejpal Singh (PW-6), who took up
the investigation and proceeded in accordance with law. The Investigating Officer inspected the
place of occurrence and prepared the site plan. He recovered blood stained soil as well as simple
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
soil from the place of occurrence, sealed the same, and prepared the recovery memo (Exhibit Ka2). He also took into custody one bicycle and a pair of slippers lying at the place of occurrence and
prepared a recovery memo (Exhibit Ka-3). Further, from the body of deceased, the Investigating
Officer recovered a blood- stained trouser and a white kurta, which were duly sealed and taken into
possession, and the relevant recovery memo was prepared as Exhibit Ka-4. The Investigating
Officer also conducted the inquest proceedings (panchayatnama) of the dead body of deceased and
prepared the inquest report (Exhibit Ka-5). Thereafter, the dead body was sent for post-mortem
examination. Subsequently, the Investigating Officer S.I. Tejpal Singh (PW-6) recorded the
statements of the informant Ram Dayal (PW-5) and other eyewitnesses of the occurrence under
Section 161 Cr.P.C. After completing all the formalities and procedures of investigation, the
Investigating Officer S.I. Tejpal Singh (PW-6) submitted the charge-sheet against the accused
persons, namely, Kishan Lal, Bhola Nath and Veerpal under Section 302 IPC before the Court of
the concerned Magistrate.

5. Since the offence was exclusively triable by the Court of Session, the learned Magistrate
committed the case to the Sessions Court for trial. The learned Trial Court framed charges against
the accused-appellants on 24.02.1989 under Section 302 read with Section 34 IPC, to which the
accused-appellants pleaded not guilty and claimed trial.

6. In order to prove its case against the accused-appellants, the prosecution examined Ramlal
(PW-1), Omkar (PW-2), Salik Ram (PW-3), Mool Chand (PW-4), the informant Ram Dayal (PW5), the Investigating Officer S.I. Tejpal Singh (PW-6) and Dr. S.K. Agrawal (PW-7).

7. Apart from the oral evidence of the aforesaid witnesses, the prosecution also relied upon the
documentary evidence, such as, the written report (Exhibit Ka-1), the recovery memo of blood-
stained and plain soil (Exhibit Ka-2), the recovery memo of bicycle, slippers and H.M.T. watch
(Exhibit Ka-3), the recovery memo of blood stained clothes of the deceased (Exhibit Ka-4), the
inquest report (Exhibit Ka-5), the charge-sheet (Exhibit Ka-12) and the post-mortem report (Exhibit
Ka-15).

8. After conclusion of the prosecution evidence, the statements of the accused-appellants were
recorded under Section 313 Cr.P.C., wherein they denied the prosecution case and stated that they
had been falsely implicated in the present case on account of previous enmity. It was further stated
that the prosecution witnesses had deposed falsely against them due to such enmity. The accusedappellants, however, did not adduce any defence witness in support of their case.

9. After hearing the arguments of both sides and upon appreciation and evaluation of the
evidence on record, the learned Trial Court found the accused-appellants, namely, Kishan Lal,
Bhola Nath and Veerpal guilty of the offence and convicted them under Section 302 read with
Section 34 IPC to undergo imprisonment for life.

10. Vide order dated 15.12.2025 passed by this Court, the appeal in respect of appellant nos. 1
and 2, namely, Kishan Lal and Bhola Nath, stood abated on account of their death. Consequently,
the appeal now survives only on behalf of appellant no.3, Veerpal and is being adjudicated,
accordingly.
2 All. Kishan Lal & Ors. Vs. State of U.P.
1019

11. We have heard the arguments advanced by learned counsel for the surviving appellant no.3
and the learned A.G.A. for the State. We have also gone through the entire evidence available on
record and have also perused the impugned judgment and order of conviction and sentence dated
16.05.1989 passed by the learned Trial Court.

12. Learned counsel for appellant no. 3- Veerpal, the sole surviving appellant, contended that
the so-called eyewitnesses of the occurrence, namely, Ramlal (PW-1) and Omkar (PW-2) have
turned hostile and have not supported the prosecution case. It was argued that only the informant
Ram Dayal (PW-5), who is the brother of the deceased, has supported the prosecution version.
However, his presence at the place of occurrence on 23.10.1987 is highly doubtful and suspicious.
It has also been argued by the learned counsel for appellant no. 3 that the prosecution has wholly
failed to prove the existence of a pre-plan, premeditation, and joint participation by all the accusedappellants in the commission of the alleged crime, in light of the ingredients of Section 34 IPC.
Learned counsel for the appellant no.3 further argued that the named eyewitnesses mentioned in the
written report, namely, Ramlal (PW-1) and Omkar (PW-2) have not supported the prosecution case
during trial, and therefore the conviction of the accused is based solely on the interested and
solitary testimony of the informant Ram Dayal (PW-5), which is unsafe to rely upon in the facts
and circumstances of the present case. It was thus submitted that the learned Trial Court has
illegally and erroneously convicted the accused-appellants by placing reliance on doubtful and
unreliable evidence, ignoring the settled principles governing appreciation of evidence.
Consequently, the judgement and order of conviction and sentence dated 16.05.1989 is against the
weight of evidence on record and is liable to be set aside and the instant criminal appeal deserves to
be allowed.

13. Per contra, learned A.G.A. for the State submitted that although the eyewitnesses Ram Lal
(PW-1) and Omkar (PW-2) have turned hostile and have not supported the prosecution case, the
informant Ram Dayal (PW-5), who is the brother of the deceased, has fully and consistently
supported the prosecution version in his testimony. The learned A.G.A. further submitted that it is a
settled principle of law that a conviction can safely be based on the testimony of a solitary witness,
provided his evidence is found to be credible and trustworthy. Further, the learned Trial Court, in a
proper and legal perspective, placed reliance upon the testimony of Ram Dayal (PW-5), who is the
solitary eyewitness in the present case, and on the basis of his reliable evidence rightly held the
accused-appellant guilty of the offence. It was vehemently argued by learned A.G.A. that the
judgment and order of conviction and sentence dated 16.05.1989 passed by the learned Trial Court
is fully justified on the basis of the evidence available on record and does not suffer from any
misappreciation and mis-evaluation of the prosecution evidence. The Trial Court has, in accordance
with law and on proper appreciation of the evidence, rightly convicted the accused-appellant for the
commission of the alleged offence. Thus, prosecution has fully proved its case beyond all
reasonable doubt. Consequently, it was submitted that the instant criminal appeal filed by the
accused-appellant lacks merit, and the same is liable to be dismissed.

14. In view of the arguments advanced by the learned counsel for sole surviving accusedappellant no.3, Veerpal and the counter submissions made by the learned A.G.A. for the State, we
have perused the written report (Exhibit Ka-1) and the entire evidence on record. From perusal of
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
the First Information Report, it is apparent that the incident is alleged to have occurred on
23.10.1987 at about 10:00 a.m.

15. From perusal of the post-mortem report (Exhibit Ka-15), and the testimony of Dr. S.K.
Agrawal (PW-7), who conducted the post-mortem examination of the deceased Indal, it is revealed
that the following injuries were found on the body of deceased:

'1. An incised wound measuring 15 cm ' 5 cm, bone deep, situated on the front side of the
chest at the root of the neck. The C-7 and C-8 vertebrae were severed at the level of bone, and the
chest was found separated from the neck.

2. Two incised wounds, each measuring 4 cm ' 1 cm, bone deep.

3. An incised wound measuring 3 cm ' 1 cm, bone deep, situated slightly above the left
ear.

4. An incised wound measuring 2 cm ' ' cm, bone deep, located on the middle front
portion of the head.

5. An incised wound measuring 5 cm ' 1 cm, bone deep, extending from the middle of the
head towards the left side, involving the left eye and left cheek.

6. Two incised wounds, each measuring 3 cm ' 1 cm, bone deep, present on the left wrist,
over the upper part of the wrist bone. The wrist bone was found cut.

7. An incised wound measuring 5 cm ' ' cm, bone deep, present on the back of the left
palm.

8. Two incised wounds, each measuring 3 cm ' 1 cm, bone deep, present on the back of
the left forearm, towards the outer side.

9. An incised wound measuring 4 cm ' 1 cm, bone deep, present on the left shoulder.

10. An incised wound measuring 3 cm ' 1 cm, bone deep, present on the back of the right
palm.

11. An incised wound measuring 2 cm ' 1 cm, bone deep, present on the front side of the
right palm.

12. An incised wound measuring 4 cm ' 1 cm, bone deep, present on the back of the right
hand and fingers.

13. An incised wound measuring 2 cm ' 1 cm, bone deep, present between the toes of the
right foot.'
2 All. Kishan Lal & Ors. Vs. State of U.P.
1021

16. From the testimony of Dr. S.K. Agrawal (PW-7) and from the postmortem report (Exhibit
Ka-15), it is evident that the cause of death of the deceased was shock and hemorrhage resulting
from ante-mortem injuries. The postmortem report clearly establishes that the deceased sustained
thirteen injuries on vital parts of the body. Thus, it stands proved that the deceased was brutally
murdered.

17. According to the prosecution case as set out in the FIR, the informant Ram Dayal (PW-5)
was seated on the carrier of the bicycle, while the deceased was riding the bicycle. When the
accused-appellants allegedly assaulted the deceased, the informant is stated to have got down from
the bicycle and fled towards the southern direction. It is also mentioned in the FIR that apart from
the informant Ram Dayal (PW-5), Ramlal (PW-1) and Omkar (PW-2) had also witnessed the
commission of alleged offence by the accused persons.

18. However, upon appreciation of the evidence of Ramlal (PW-1) and Omkar (PW-2), it is
evident that both these prosecution witnesses did not support the prosecution case before the Trial
Court and were declared hostile. They also denied the statements allegedly made by them under
Section 161 Cr.P.C. before the Investigating Officer.

19. From the testimony of PW-1 and PW-2, the only fact that stands established is that on the
date of the incident they had seen the dead body of the deceased lying at the place of occurrence.
Both these witnesses categorically stated that they had not seen the actual commission of the
offence by any of the accused person.

20. Thus, from the evidence of the aforesaid witnesses, it is proved only to the extent that the
deceased was murdered on the said date, time and place and deceased's body with severed head,
was found at the place of occurrence.

21. Prosecution witness Salik Ram (PW-3) has categorically testified that after the occurrence
of the incident, he scribed the tehriri on the dictation of informant Ram Dayal (PW-5). He further
deposed that after scribing the said report, he endorsed his own signatures as well as the signatures
of Ram Dayal (PW-5) on it. This witness has also stated that he did not go to the police station.
From a conjoint reading of the testimony of prosecution witness Salik Ram (PW-3), it is clearly
established that Salik Ram (PW-3) is the scriber of the tehriri, i.e., the written report marked as
'Exhibit Ka-1'. The said written report (Exhibit Ka-1) was written by Salik Ram (PW-3) as dictated
by the informant Ram Dayal (PW-5).

22. Prosecution witness Mool Chand (PW-4) has proved the recovery memo of blood-stained
soil, plain soil marked as 'Exhibit Ka-2'. He has further proved the recovery memo of a bicycle,
slippers, and an HMT wristwatch recovered from the place of occurrence, marked as 'Exhibit Ka-3'.
This witness has also proved the recovery memo of the clothes of the deceased, marked as 'Exhibit
Ka-4'. Apart from the above, prosecution witness Mool Chand (PW-4) has proved the
panchayatnama of the deceased, marked as 'Exhibit Ka-5'. This witness has stated in his evidence
that the deceased Indal Prasad was his relative. From the statement of this witness Mool Chand
(PW-4), it is also clear that at about 11:00- 11:30 a.m., he reached at the place of occurrence. At
that time, police were preparing recovery memo, Exhibit Ka-2, Exhibit Ka-3, Exhibit Ka-4 and
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
Exhibit Ka-5. At that time, Daroga Ji was also questioning that who had enmity with whom. PW-4
has further deposed that the proceedings of the Panchayatnama were conducted in his presence and
that the same was prepared before him. The witness has testified the aforesaid facts.

23. It is evident that the prosecution witnesses, namely, Ramlal (PW-1) and Omkar (PW-2),
whose names find place in the written report (Exhibit Ka-1) as eye-witnesses of the alleged
incident, have turned hostile before the Trial Court and have not supported the prosecution case.
Salik Ram (PW-3) is a formal witness who scribed the written report (Exhibit Ka-1) on the
dictation of the informant, Ram Dayal (PW-5). Mool Chand (PW-4) is a witness only with regard
to the recovery and the preparation of the recovery memo and the Panchayatnama, and he has
proved Exhibit Ka-2, Exhibit Ka-3, Exhibit Ka-4, and Exhibit Ka-5.

24. Thus, in the present case, the only eye-witness of the alleged incident is the informant,
Ram Dayal (PW-5). He is the star witness of the prosecution, who claims to have witnessed the
commission of alleged crime by all the accused-appellants with his own eyes on the date of
incident, i.e., 23.10.1987. His version is also reflected in the written report (Exhibit Ka-1).

25. From a perusal of examination-in-chief of informant, Ram Dayal (PW-5), it transpires that
at the time of alleged incident he was present along with his elder brother, the deceased Indal
Prasad. He deposed that he and his brother Indal had gone on a bicycle to meet Mool Chand, the
Gram Pradhan of village Gujranpur. While returning from the meeting, at about 10:00 a.m., when
they reached near the Tila situated close to the canal (nahar), the accused persons, namely, Veerpal,
Kishan Lal and Bhola Nath, suddenly emerged from a sugarcane field. According to him, Veerpal
and Bhola Nath were armed with kanta, whereas Kishan Lal was armed with a sword. The accused
persons, after emerging from the sugarcane field, brutally assaulted the deceased and severed his
head from his body. He saw the severed head of his brother and thereafter, the accused fled from
the spot. The witness stated that when he raised alarm and ran some distance, Ramlal and Omkar,
who were passing near the canal, reached the spot. Ramlal and Omkar attempted to intervene,
however, before they could prevent the assault, the accused persons had already severed the head of
the deceased and fled. From the evidence of this witness, it is also apparent that the deceased was
riding a bicycle before the alleged incident, and his slippers and wristwatch remained lying at the
place of occurrence.

26. In his cross-examination, the informant Ram Dayal (PW-5) stated that he along with his
brother, Indal Prasad went at around 7:00 a.m. to the house of Mool Chand, the village Pradhan. He
said that when the accused came out of the sugarcane field, he got down from his bicycle and ran
away shouting, but he could not remember which direction he ran.

27. From the cross-examination of the witness, it has also emerged that there had been enmity
between the accused persons and my brother ever since a murder case was lodged against my
brother, Indal Prasad. In that earlier case, my brother, Indal, had been convicted and sentenced to
four years' imprisonment. At the time of the alleged incident, the appeal against that conviction was
pending, and my brother was out on bail.
2 All. Kishan Lal & Ors. Vs. State of U.P.
1023

28. On perusal of the written report (Exhibit Ka-1), it is apparent that in 1981, Omkar S/o
Bhola Nath, was murdered, and my brother Indal had been named in that case. He had undergone
trial and served part of the sentence. In view of these circumstances, it appears that the murder of
the brother of the informant was committed by the accused persons due to the existing enmity
arising from the earlier case.

29. From the perusal of the written report (Exhibit Ka-1), it is evident that there existed a bitter
enmity between the deceased, Indal Prasad, and the accused persons. The cause of this enmity was
the murder of Omkar S/o Bhola Nath, in which the deceased, Indal Prasad, had been named as an
accused. Indal Prasad was tried, convicted, and sentenced to four years' imprisonment. At the time
of the alleged incident, he was on bail, and the appeal against his conviction was pending. These
circumstances indicate a strong motive on the part of the accused-appellants to commit the murder
of Indal Prasad, who was returning home with his brother, the informant Ram Dayal (PW-5), on a
bicycle. The existence of this heated and revengeful enmity is further corroborated by the crossexamination of the accused-appellants. Accordingly, the facts of long-standing enmity and
revengeful intention of the accused-appellants are clearly established from the evidence of the
informant Ram Dayal (PW-5), as deposed in Court.

30. Although the other prosecution witnesses, such as, Ramlal (PW-1) and Omkar (PW-2),
have not supported the prosecution story, but when their evidence is considered in the light of the
written report (Exhibit Ka-1), the evidence of the prosecution witness Ram Dayal (PW-5) is found
to be fully reliable and relevant. We cannot reject the evidence of the informant Ram Dayal (PW-5)
only on the ground that the evidence of this sole eyewitness has not been supported by other
prosecution witnesses, such as, Ramlal (PW-1) and Omkar (PW-2). The evidence of the informant
Ram Dayal (PW-5) is further supported and corroborated by the postmortem report (Exhibit Ka-15)
and the evidence of Dr. S.K. Agarwal (PW-7), who conducted the postmortem examination of the
deceased, Indal Prasad.

31. From the perusal of the postmortem report (Exhibit Ka-15) prepared by Dr. S.K. Agarwal
(PW-7), it is found that thirteen grievous injuries were sustained on the vital parts of the deceased's
body. According to Dr. S.K. Agarwal, all these injuries were caused by a sword, kanta, or some
other heavy sharp-edged weapon. The informant, Ram Dayal (PW-5), in his written report (Exhibit
Ka-1) as well as in his evidence before the Court, stated that the accused-appellant Kishan Lal was
armed with a sword, while the accused-appellants Bhola Nath and Veerpal were armed with kanta.

32. From a perusal of the number, nature, and location of the injuries, it is evident that all three
accused-appellants were present at the place of occurrence and jointly assaulted the deceased, Indal
Prasad, with a sword and kanta, thereby causing thirteen grievous injuries to the vital parts of his
body. The nature and size of the injuries, as well as the weapons used, indicate that the accusedappellants were motivated by revenge, as the deceased, Indal Prasad, had been named and
convicted in connection with the murder case of Omkar S/o accused-appellant Bhola Nath. This
establishes a strong motive for the accused-appellants to commit the murder of Indal Prasad as an
act of revenge for the earlier incident. Accordingly, the fact of motive against the accusedappellants, which prompted them to commit the alleged crime, has been fully established by the
prosecution.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES

33. As far as the testimony of the sole eyewitness, informant Ram Dayal (PW-5), is
concerned, upon perusal and analysis of the entire evidence, it is found that there is no material or
major contradiction in his testimony that could render his deposition doubtful or suspicious. In
other words, the evidence of the sole eyewitness, Ram Dayal (PW-5), is wholly reliable. Further,
the evidence of Ram Dayal (PW-5) inspires confidence, as the fact of motive against the accusedappellants for the commission of the alleged crime has been established through his testimony.

34. The presence of the sole eyewitness, informant Ram Dayal (PW-5), is further corroborated
by his testimony in Court as well as by the written report (Exhibit Ka-1). It is a natural and human
tendency that the family members of a victim would not exonerate the real culprit or falsely
implicate an innocent person in connection with the crime. Family members of the victim are
generally inclined to ensure that the actual perpetrator is held accountable for the commission of
the crime.

35. From the evidence of the sole eyewitness, informant Ram Dayal (PW-5), and the written
report (Exhibit Ka-1), it is evident that all the accused-appellants, with a strong motive, hatched a
premeditated plan. They were waiting for a suitable opportunity and when they found Indal Prasad,
alone with his brother, the informant Ram Dayal (PW-5), they, in furtherance of their premeditated
plan, jointly assaulted Indal Prasad with sword and kanta, thereby causing his murder.

36. The number, nature, and location of the injuries, as well as the nature of the weapons used
in the commission of the alleged crime, establish that all three accused-appellants equally
participated in the offence. Therefore, from the foregoing facts, it is evident that the accusedappellants acted with pre-planning, premeditation, and actively participated in the commission of
alleged crime.

37. The Hon'ble Supreme Court in the case of Ashok Kumar v. State of Punjab; AIR 1977
Supreme Court 109 has held on Section 34 IPC that:

"the existence of a common intention amongst the participants in a crime is the essential
element for application of this Section. It is not necessary that the acts of the several persons
charged with commission of an offence jointly must be the same or identically similar. The acts
may be different in character, but must have been actuated by one and the same common intention
in order to attract the provision."

38. In the case of Babulal Bhagwan Khandare v. State of Maharashtra; AIR 2005 Supreme
Court 1460, the Hon'ble Supreme Court in paragraph nos. 20 & 23 has held that:

"20. Section 34 has been enacted on the principle of joint liability in the doing of a
criminal act. The Section is only a rule of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation in action. The liability of one person
for an offence committed by another in the course of criminal act perpetrated by several persons
arises under Section 34 if such criminal act is done in furtherance of a common intention of the
persons who join in committing the crime. Direct proof of common intention is seldom available
and, therefore, such intention can only be inferred from the circumstances appearing from the
2 All. Kishan Lal & Ors. Vs. State of U.P.
1025
proved facts of the case and the proved circumstances. In order to bring home the charge of
common intention, the prosecution has to establish by evidence, whether direct or circumstantial,
that there was plan or meeting of mind of all the accused persons to commit the offence for which
they are charged with the aid of Section 34 be it pre-arranged or on the spur of moment; but it
must necessarily be before the commission of the crime. The true contents of the Section are that if
two or more persons intentionally do an act jointly, the position in law is just the same as if each of
them has done it individually by himself.

23. The Section does not say "the common intention of all", nor does it say "and intention
common to all". Under the provisions of Section 34 the essence of the liability is to be found in the
existence of a common intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application of principles enunciated in Section 34 ,
when an accused is convicted under' Section 302 read with Section 34, in law it means that the
accused is liable for the act which caused death of the deceased in the same manner as if it was
done by him alone. The provision is intended to meet a case in which it may be difficult to
distinguish between acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them."

39. In the case of Virendra Singh v. State of M.P.; (2010) 8 SCC 407, the Hon'ble Supreme
Court in paragraph nos. 15, 16 and 17 has held that:

"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously
responsible for the acts of others if he had the common intention to commit the offence. The words
"common intention" implies a pre-arranged plan and acting in concert pursuant to the plan. It must
be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Common
intention comes into force prior to the commission of the act in point of time, which need not be a
long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary
to be proved. The common intention to bring about a particular result may well develop on the spot
as between a number of persons, with reference to the facts of the case and circumstances of the
situation. Though common intention may develop on the spot, it must, however, be anterior in point
of time to the commission of the crime showing a pre- arranged plan and prior concert. The
common intention may develop in course of the fight but there must be clear and unimpeachable
evidence to justify that inference.

16. The essence of the liability is to be found in the existence of a common intention
animating the accused leading to the doing of a criminal act in furtherance of such intention.
Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the
more difficult to show the common intention of a group of persons. Therefore, in order to find
whether a person is guilty of common intention, it is absolutely necessary to carefully and critically
examine the entire evidence on record. The common intention can be spelt out only from the
evidence on record.

17. Section 34 is not a substantive offence. It is imperative that before a man can be held
liable for acts done by another, under the provisions of this section, it must be established that
there was common intention in the sense of a pre-arranged plan between the two and the person
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
sought to be so held liable had participated in some manner in the act constituting the offence.
Unless common intention and participation are both present, this section cannot apply."

40. Upon re-examination of the evidence in light of the Hon'ble Supreme Court's case laws as
referred above, it is evident from the prosecution evidence that all the accused-appellants were
motivated by a strong desire to avenge the murder of Omkar, son of accused-appellant Bhola Nath,
acted pursuant to a pre-planned and pre-meditated design. They were concealing themselves in a
sugarcane field adjoining a canal in wait for the deceased, Indal Prasad. When the deceased passed
through the place of occurrence, all the accused-appellants, acting in furtherance of the common
intention, attacked him with swords and kanta, inflicting grievous injuries on vital parts of his body
and ultimately severing his head from his body. Thus, the prosecution evidence clearly establishes
that the surviving appellant, Veerpal, along with the other appellants (now deceased), acted
pursuant to a pre-planned and premeditated design, and that each of them actively participated in
the commission of the alleged crime. The ingredients of Section 34 of Indian Penal Code are fully
established, making all accused liable for the commission of alleged crime. The defence arguments
lack merit in light of the evidence and also in light of the aforesaid decisions of Hon'ble Supreme
Court.

41. From a perusal of the findings and reasoning given by the learned Trial Court in the
judgment and order of conviction and sentence dated 16.05.1989, it is apparent that the learned
Trial Court duly considered the question of motive and, after appreciating the evidence, found a
strong motive against all the accused-appellants for the commission of alleged crime. The learned
Trial Court recorded its findings based on the prosecution evidence, which, upon examination, are
wholly in accordance with the evidence and the law.

42. The learned Trial Court placed full reliance on the evidence of informant, Ram Dayal
(PW-5), and on the basis of his testimony and the motive as stated in the written report (Exhibit Ka1), concluded that all the accused-appellants had a strong motive to commit the alleged crime.
From the perusal of the Trial Court's reasoning, it is evident that the prosecution witnesses were
discussed in a proper and legally sound manner, in accordance with settled principles of law.
Accordingly, the findings and reasoning given by the learned Trial Court are found to be affirmable
by this Court.

43. Thus, from the above discussions, we find no force or merit in the arguments advanced by
the learned counsel for the surviving appellant, Veerpal. We further hold that the learned Trial
Court has rightly appreciated the evidence adduced by the prosecution and correctly found the
surviving appellant, Veerpal, along with the other appellants (now deceased), guilty under Section
302 read with Section 34 IPC. We do not find any illegality or infirmity in the Trial Court's
appreciation of evidence.

44. The impugned judgment of conviction and sentence dated 16.05.1989, passed by the
learned Trial Court under Sections 302 read with Section 34 IPC, is fully supported by the evidence
available on record. The evidence conclusively establishes the participation of the surviving
appellant, Veerpal, in the alleged crime with premeditation and prior planning, along with the other
appellants
(now
deceased).
2 All. Ramphal & Ors. Vs. State of U.P.
1027

45. Thus, from the above discussions, it is evident that the essential ingredients of Section 34
of the IPC, namely, pre-planning, premeditation and participation, stand fully established and
proved against the surviving accused-appellant, Veerpal. Since the prosecution evidence has
conclusively proved the existence of pre-plan, premeditation and active participation on the part of
the accused-appellant, Veerpal, he is consequently liable to be convicted for the offence and charge
levelled against him by the prosecution.

46. Accordingly, the present criminal appeal lacks merit and is hereby rejected.

47. The accused-appellant, Veerpal, is presently on bail. His personal bond stands cancelled,
and his sureties are discharged from their liabilities. He is directed to surrender before the Chief
Judicial Magistrate, Pilibhit, within one month from today, to undergo the remaining sentence
awarded by the Trial Court vide order dated 16.05.1989.

48. In the event the accused-appellant, Veerpal, fails to surrender before the Chief Judicial
Magistrate, Pilibhit, within the stipulated period of one month, the Chief Judicial Magistrate, shall
issue a non-bailable warrant to secure his arrest. Upon arrest, he shall be sent to jail to serve the
remaining sentence in accordance with the Trial Court's order dated 16.05.1989.

49. The Chief Judicial Magistrate, Pilibhit, is directed to intimate this Court regarding
compliance of this order.

50. Let a copy of this judgment be sent to the learned Trial Court along with the Trial Court
record forthwith.
---------
(2026) 2 ILRA 1027
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2026

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 1458 of 1984

Ramphal & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Issue for consideration
Matter pertains to whether conviction of dacoity be made if less than five accused.

Headnotes
Indian Penal Code, 1860 - Ss. 391, 395 & 397- Dacoity - Conviction of less than five accused -Validity-
Appreciation of evidence -Held, where after discharge and acquittal the number of accused facing trial was
less than five -and even the charge was framed against four persons-conviction under S. 395 IPC is not
sustainable; further, conviction of accused under S. 397 IPC despite acquittal under S. 25 Arms Act- and