# Rajendra & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 1729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-01
- **Case number:** Criminal Appeal No. 10492 of 2024
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-anr-v-state-of-u-p-53338
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 386 - Cross-cases -
Common
Judgment
-
Illegality
-
Separate evidence in cross-cases to be
considered independently - Passing of
common judgment on appreciation of
joint evidence in distinct case crimes held
impermissible - Principle of Nathi Lal Vs
St.
of
U.P.,
(1990
Supp
SCC
145)
reaffirmed - Order of conviction set aside
and matter remitted for fresh decision -
Appellants, who were on bail during trial,
directed to be released on bail pending
retrial. (Paras 6, 9, 11 and 12)

HELD:
The procedure adopted by the learned court
below is described, manifestly erroneous and
wholly impermissible in law. Reliance has been
placed on the decision of the Supreme Court in
Nathi Lal & ors. Vs St. of U.P., 1990 Supp SCC
145, as consistently followed in Sudhir & ors. Vs
St. of M.P, (2001) 2 SCC 688, St. of M.P. Vs
Mishrilal (dead) & ors., (2003) 9 SCC 426, as
1730 INDIAN LAW REPORTS ALLAHABAD SERIES
considered and applied by a three-judge bench
decision of the Supreme Court in A.T. Mydeen &
anr.
Vs
Assistant
Commissioner,
Customs
Department, (2022) 14 SCC 392. The principle
of law invoked by in these sets of appeal is
beyond shadow of doubt. It is described as an
absolute proposition in criminal jurisprudence.
(para 6)

Appeal allowed. (E-14)

List of Cases cited:

## Text

5 All. Rajendra & Anr. Vs. State of U.P.
1729
Section 164 Cr.P.C and her first
statement given to the police under Section
161 Cr.P.C, it appears that the victim gave
her second statement under Section 164
Cr.P.C and the evidence in the Court under
pressure from her parents, which does not
inspire
confidence.
The
material
improvements
made
by 'X'
in her
testimony
do
affect
her
credibility
adversely,
which
is
bereft
of
any
corroboration in material particulars.

41. In view of this, the trial court
has committed illegality in relying upon the
sole testimony of the victim and convicting
the
accused
persons.
The
impugned
judgment and order dated 23.11.2017
passed by the lower court is wholly
perverse and is liable to be set aside.
Consequently, both the Criminal Appeals
are liable to be allowed.

42. Accordingly, the impugned
judgment and order dated 23.11.2017 is set
aside. Both the appeals are allowed. The
conviction and sentence imposed upon
accused Shailendra Kushwaha, Manvendra
Singh @ Jhamman Pal and Malik Chandra in
Sessions Trial No. 22 of 2014 under Sections
363, 366, 376D I.P.C and 3⁄4 POCSO Act is
set aside. All the accused are acquitted of the
charges levelled against them.

43. The appellants are in Jail. They
are directed to be released forthwith, if not
wanted in any other case.

44. The Registrar (Compliance) is
directed to communicate this order to the
trial court and to the concerned jail
authority for compliance. The compliance
report be also submitted by the trial Court.

45. Office is directed to send back
the trial Court record.
----------
(2025) 5 ILRA 1729
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 10492 of 2024
With
Criminal Appeal No. 10576 of 2024

Rajendra & Anr. ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajrshi Gupta, Sri Santosh Kumar
Shukla, Sri Dileep Kumar (Sr. Adv.)

Counsel for the Opposite Party:
Sri Aditya Kashyap, Sri Anshul Kumar
Singhal, G.A., Sri Vinod Kumar Tripathi

Criminal Law - Criminal Procedure Code,
1973 - Section 386 - Cross-cases -
Common
Judgment
-
Illegality
-
Separate evidence in cross-cases to be
considered independently - Passing of
common judgment on appreciation of
joint evidence in distinct case crimes held
impermissible - Principle of Nathi Lal Vs
St.
of
U.P.,
(1990
Supp
SCC
145)
reaffirmed - Order of conviction set aside
and matter remitted for fresh decision -
Appellants, who were on bail during trial,
directed to be released on bail pending
retrial. (Paras 6, 9, 11 and 12)

HELD:
The procedure adopted by the learned court
below is described, manifestly erroneous and
wholly impermissible in law. Reliance has been
placed on the decision of the Supreme Court in
Nathi Lal & ors. Vs St. of U.P., 1990 Supp SCC
145, as consistently followed in Sudhir & ors. Vs
St. of M.P, (2001) 2 SCC 688, St. of M.P. Vs
Mishrilal (dead) & ors., (2003) 9 SCC 426, as
1730 INDIAN LAW REPORTS ALLAHABAD SERIES
considered and applied by a three-judge bench
decision of the Supreme Court in A.T. Mydeen &
anr.
Vs
Assistant
Commissioner,
Customs
Department, (2022) 14 SCC 392. The principle
of law invoked by in these sets of appeal is
beyond shadow of doubt. It is described as an
absolute proposition in criminal jurisprudence.
(para 6)

Appeal allowed. (E-14)

List of Cases cited:

1. Nathi Lal & ors. Vs St. of U.P., 1990 Supp SCC
145

2. Sudhir & ors. Vs St. of M.P., (2001) 2 SCC 688

3. St. of M.P. Vs Mishrilal (dead) & ors., (2003) 9
SCC 426

4.
A.T.
Mydeen
&
anr.
Vs
Assistant
Commissioner, Customs Department, (2022) 14
SCC 392

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
 Hon'ble Sandeep Jain, J.)

1. Heard Shri Dileep Kumar, learned
Senior Advocate assisted by Shri Santosh
Kumar Shukla, learned counsel for the
appellants, Shri Pankaj Kumar Tripathi,
learned A.G.A. for the State and Shri
Vinod Kumar Tripathi, learned counsel for
the informant.

2. Present appeal arises from a
common
judgment
and
order
dated
10.10.2024 passed by Ms. Indu Dwivedi,
learned Additional Sessions Judge, Court
No. 6, Ghaziabad, in Sessions Trial No.
1148
of
2015
(State
v.
Raghurag,
Chahatram, Bijendra and Rajendra). That
sessions trial emerged from Case Crime
No. 1118A of 2006, under Section 302/34
I.P.C., P.S. Loni, District Ghaziabad. The
said judgment and order is also common to
two other sessions trial namely Sessions
Trial No. 387 of 2007 (State v. Rakesh) and
Sessions Trial No. 810 of 2013 (State v.
Rishi), both arising out of Case Crime No.
1118 of 2006, under Section 307 and 385
I.P.C., P.S. Loni, District Ghaziabad
(against
accused-Rakesh)
and
under
Section 307, 384 and 385 I.P.C. (against
accused-Rishi). Learned Court below has
convicted
the
appellants-Raghurag,
Chahatram, Bijendra and Rajendra (in S.T.
No. 1148 of 2015). It has acquitted the
accused persons Rakesh and Rishi in
Session Trial No. 387 of 2007 (State v.
Rakesh) and Sessions Trial No. 810 of
2013 (State v. Rishi), respectively.

3. The above common judgment
and order has given rise to four appeal
proceedings, three on behalf of the
convicted accused and one on behalf of the
informant in Case Crime No. 1118 of 2006
whereby the accused persons Rakesh and
Rishi have been acquitted. Details of the
appeal filed are as under :

S.No
.

Appeal
No.

Party
Name

Sessions
Trial

1.
Crimina
l Appeal
No.
10492
of 2024

(Rajendra
and
Chahatra
m v. State
of U.P.)

S.T.
No.
1148
of
2015
(State
v.
Raghurag,
Chahatram
, Bijendra
and
Rajendra)

2.
Crimina
l Appeal
No.
10576
(Raghuraj
v. State of
U.P.)

-
do-
5 All. Rajendra & Anr. Vs. State of U.P.
1731
of 2024

3.
Crimina
l Appeal
No.
10731
of 2024

(Bijendra
v. State of
U.P.)

-
do-

4.
Crimina
l Appeal
u/S 372
Cr.P.C.
No. 668
of 2024

(Rajendra
Singh
v.
State
of
U.P.,
Rakesh
and Rishi)

S.T.
No.
387
of
2007
(State
v.
Rakesh)
and
S.T.
No. 810 of
2013
(State
v.
Rishi).

4. As to the proceedings conducted
by the learned court below, undoubtedly
evidence
was
received
separately
in
Sessions Trial No. 1148 of 2015 (State v.
Raghuraj and 3 others). On the other hand,
initially, proceedings in Sessions Trial No.
387 of 2007 (State v. Rakesh) and Sessions
Trial No. 810 of 2013 (State v. Rishi), both
arising from Case Crime No. 1118 of 2006
were conducted independently. Later, the
two sessions trial were consolidated and
Sessions Trial No. 810 of 2013 was made
the lead case. Evidence was received in
that. To the above extent, there is nothing
to doubt the proceeding. What transpired
after evidence had been adduced, is of no
concern in these appeals.

5. Submission is, the learned court
below has fallen in error in passing a
common judgement and order in the three
sessions trial namely Session Trial No.
1148 of 2015 (State v. Raghuraj and 3
others), arising out of Case Crime No.
1118A
of
2006
against
Raghuraj,
Chahatram, Bijendra and Rajendra and the
two other sessions trial namely Sessions
Trial Nos. 387 of 2007 and 810 of 2013,
arising from Case Crime No. 1118 of 2006
against the other set of accused namely
Rakesh and Rishi.

6. The procedure adopted by the
learned
court
below
is
described,
manifestly
erroneous
and
wholly
impermissible in law. Reliance has been
placed on the decision of the Supreme
Court in Nathi Lal and others v. State of
U.P., 1990 Supp SCC 145, as consistently
followed in Sudhir and others v. State of
M.P, (2001) 2 SCC 688, State of M.P. v.
Mishrilal (dead) and others, (2003) 9
SCC 426, as considered and applied by a
three judge bench decision of the Supreme
Court in A.T. Mydeen and another v.
Assistant
Commissioner,
Customs
Department, (2022) 14 SCC 392. The
principle of law invoked by in these sets of
appeal is beyond shadow of doubt. It is
described as an absolute proposition in
criminal jurisprudence.

7. Upon opportunity granted to
learned counsel for the State and learned
counsel for the informant, no different
principle could be pointed out.

8. Thus, it has been prayed, in view
of the defects noted above, the judgment
and order may be set aside and the matters
remitted to the learned court below to pass
appropriate orders strictly in accordance
with law, in a time bound manner.
9. Having thus heard learned counsel for
the parties and having perused the record,
we may only record what Supreme Court
had noted more than 36 years ago in Nathi
Lal (supra). A short but lucid order of the
Supreme Court reads as below :
1732 INDIAN LAW REPORTS ALLAHABAD SERIES
 "1. Special leave granted.

 2. Heard both sides.

 3.
We
think
that
the
fair
procedure to adopt in a matter like the
present where there are cross-cases, is to
direct that the same learned Judge must try
both the cross-cases one after the other.
After the recording of evidence in one case
is completed, he must hear the arguments
but
he
must
reserve
the
judgment.
Thereafter he must proceed to hear the
cross case and after recording all the
evidence he must hear the arguments but
reserve the judgment in that case. The same
learned Judge must thereafter dispose of
the matters by two separate judgments.

 4. In deciding each of the cases, he
can rely only on the evidence recorded in that
particular case. The evidence recorded in the
cross case cannot be looked into. Nor can the
judge be influenced by whatever is argued in
the cross case. Each case must be decided on
the basis of the evidence which has been
placed on record in that particular case
without being influenced in any manner by the
evidence or arguments urged in the cross case.
But both the judgments must be pronounced
by the same learned Judge one after the other.

 5. We allow this appeal partly to
the aforesaid extent and direct the learned
Judge to proceed with the police case and
the cross case instituted by the respondentcomplainant by way of a private complaint
and hold the trial in both the matters in the
light of the directions given hereinabove.
Learned Judge will accord priority to these
cross cases and dispose of both the cases
expeditiously."

10. What has been stated in the
later decisions noted above, is reiteration of
that basic/fundamental principle in criminal
jurisprudence.

11. To that extent, we are are at
loss to appreciate how such fundamental
error has crept in the order of the learned
court below. At the same time, we are left
with no option but to accept the submission
advanced by learned counsel for the parties.
Accordingly, in face of the incurable defect
that has crept in the impugned order
inasmuch as learned court below has
passed a common judgment and order in
the two set of criminal trials, one arising
from Case Crime No. 1118 of 2006 and the
other arising from cross case being Case
Crime No. 1118A of 2006 on a common
appreciation of evidence made, the said
judgment and order suffers from an
incurable defect. It is accordingly set aside.
Appeals Nos. 10492 of 2024 and 10576 of
2024 are allowed.

12. It is also noted that no other
submission has been advanced at this stage.
Both sides agree that evidence is complete.
Accordingly, the matter is remitted to the
learned court below to pass a fresh order
strictly in accordance with law.

13. Let a copy of this order be
communicated to the learned District
Judge, Ghaziabad as also to the concerned
learned Judge by Registrar (Compliance),
at her current place of posting.

14. During pendency of the appeal,
one of the appellant-Bijendra died. His
appeal being Criminal Appeal No. 10731 of
2024 was declared abated on 29.04.2025.
As far as the other appellants-Raghuraj,
Chahatram and Rajendra are concerned,
they were on bail during the trial. Post
conviction they are in jail. Since the order
of conviction has been set aside, they are
5 All. Sukh Lal Vs. State of U.P.
1733
entitled to be released on bail for
reason of status that they were on bail
during the trial. Thus, they are directed to
be enlarged on bail by the trial Court on the
same terms on which they were on bail,
pending
trial
before
the
impugned
judgment and order came to be passed.
That status may remain till conclusion of
the trial.

15. Office is directed to send back
the original trial court record.
----------
(2025) 5 ILRA 1733
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 11357 of 2024

Sukh Lal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.K. Singh Solanki, Pashali Solanki

Counsel for the Opposite Party:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section
374-Conviction
on the basis of circumstantial evidence---
Prosecution story relies on the narration that the
deceased was done to death on 10.01.2023---
Theory is unbelievable in face of clear medical
opinion
that
the
death
was caused
on
21.01.2023--- The evidence of last seen and the
occurrence caused on 21.01.2023, is so far
distant in time that it renders it wholly
uncredible and unreliable to the point of being
extraneous to the essential facts that the
prosecution
set
out
to
prove---
Occurrence/manner of death was never proven
on the strength of any circumstantial evidence.
In fact, the homicidal nature of that occurrence
itself was not established--- Prosecution story
based solely on such circumstantial evidence is
wholly disjointed, there is a complete break of
the
chain
of
evidence
which
remained
unexplained by the prosecution --- merely
because the occurrence may have been caused
and merely because one accused may have
been named for reason of motive disclosed, it
may not be enough for the prosecution to claim
that it had proof of the occurrence caused by
such accused. The test of proof beyond
reasonable doubt would remain to be satisfied
by
the
prosecution
by
proving
each
circumstance in the chain of circumstances
relied by it, motive being one but not the only
material circumstance. Judgment of conviction
set aside.

Appeal allowed. (E-15)

List of the cases referred-:

1. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

2. Bodhraj alias Bodha & ors. Vs St. of J. & K.,
(2002) 8 SCC 45

3. St. of U.P. Vs Satish, (2005) 3 SCC 114

4. Ram Narain Singh Vs St. of Pun., (1975) 4
SCC 497

5. Mani Ram Vs St. of U.P., 1994 Supp (2) SCC
289

6. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SCC 750

7. St. of M.P. Vs Paltan Mallah, (2005) 3 SCC
169

8. Sunil Rai Vs UT Chandigarh, (2011) 12 SCC 258

9. Rukia Begum Vs St. of Karn. (2011) 4 SCC 779

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Sandeep Jain, J.)