# Sarvesh Kumar Dubey & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Criminal Appeal No. 495 of 1996
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvesh-kumar-dubey-anr-v-state-of-u-p-53470
- **Pages:** 8

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 324 /34, 307/34, 504
&
109-Challenge
to
-Conviction-The
victim was allegedly attacked by the
appellants-appellant had demanded Rs.
100- from the victim 10 days prior and
had threatened consequences if unpaid,
on the incident day, one appellant caught
hold of the victim and instigated the other
appellant to fire at him-FIR was lodged
and victim was medically examined -the
fire
arm
injury
was
confirmed-PW-1
(Victim) supported the prosecution story
and withstood cross-examination-PW-2
(Doctor)
confirmed
firearm
injuryPW3(I.O.)
corroborated
procedural
evidence and filed chargesheet-The court
upheld that one appellant namely Sarvesh
not only instigated but also actively
assisted in the crime by catching hold of
the
victim-Common
intention
and
abetment were clearly established-The
injured witnesses testimony holds high
evidentiary
value
and
was
found
trustworthy
even
under
crossexamination-Conviction can be sustained
on the sole testimony of an injured or
credible
witness-The
Court relied
on
Palakom Abdul Rahiman Case and other
decisions to emphasize the rule of joint
liability and common intention u/s 34
IPC.(Para 1 to 23)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Sarvesh Kumar Dubey & Anr. Vs. State of U.P.
93
(2025) 5 ILRA 93
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 495 of 1996

Sarvesh Kumar Dubey & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
S.N. Shukla, Adil Aziz Khan, Gaurav Misra

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 324 /34, 307/34, 504
&
109-Challenge
to
-Conviction-The
victim was allegedly attacked by the
appellants-appellant had demanded Rs.
100- from the victim 10 days prior and
had threatened consequences if unpaid,
on the incident day, one appellant caught
hold of the victim and instigated the other
appellant to fire at him-FIR was lodged
and victim was medically examined -the
fire
arm
injury
was
confirmed-PW-1
(Victim) supported the prosecution story
and withstood cross-examination-PW-2
(Doctor)
confirmed
firearm
injuryPW3(I.O.)
corroborated
procedural
evidence and filed chargesheet-The court
upheld that one appellant namely Sarvesh
not only instigated but also actively
assisted in the crime by catching hold of
the
victim-Common
intention
and
abetment were clearly established-The
injured witnesses testimony holds high
evidentiary
value
and
was
found
trustworthy
even
under
crossexamination-Conviction can be sustained
on the sole testimony of an injured or
credible
witness-The
Court relied
on
Palakom Abdul Rahiman Case and other
decisions to emphasize the rule of joint
liability and common intention u/s 34
IPC.(Para 1 to 23)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Palakom Abdul Rahiman Vs S.H.O., Badiadka
P.S., Ker. & anr. (2019) 4 SCC 795

2. St. of Punj. Vs Hakam Singh (2005) 7 SCC
408

3.
U.P.
Vs
Virendra
Kr.
&
ors.
,
MANU/UP/0911/2008

4. Jodhraj Singh Vs St. of Raj. (2007) 15 SCC
294

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

1.
Heard,
Ms.
Megha
Sachan,
Advocate holding brief of Shri Adil Aziz
Khan, learned counsel for the appellant and
Shri Badrul Hasan, learned Additional
Government
Advocate
(here-in-after
referred as AGA).

2. This Criminal Appeal under Section
374(2) of Code of Criminal Procedure
Code (here-in-after referred as CrPC) has
been filed for setting aside the conviction
and sentence awarded by the court of IIIrd
Additional Sessions Judge, Pratapgarh by
means of the judgment and order dated
28.10.1996 passed in Session Trial No. 44
of 1991; State of Uttar Pradesh versus
Sarvesh Kumar Dubey and another, under
Section 307/34, 504 and 109 of Indian
Penal Code (here-in-after referred as
I.P.C.), Police Station Lalganj, District
Pratapgarh, by means of which the
appellant no. 1-Sarvesh Kumar Dubey has
been convicted under Section 324 read with
Sections 34 and 109 I.P.C. and the
appellant no.2-Rajiv Kumar Mishra has
been convicted under Section 324 I.P.C.
94 INDIAN LAW REPORTS ALLAHABAD SERIES
and they have been sentenced with a
punishment of 2 and 1/2 years rigorous
imprisonment and Rs. 500 fine and in
default of payment of fine, to undergo one
month rigorous imprisonment.

3. The appellant no. 2-Rajiv Kumar
Mishra died during pendency of the appeal,
therefore, the appeal in reference to him had
abated by means of the order dated
14.03.2013. Now this appeal survives only by
the appellant no. 1-Sarvesh Kumar Dubey.

4. Learned counsel for the appellant
submits that the appellant has wrongly and
illegally been convicted in the case. As per
prosecution itself, the role of the appellant
was of instigation only and he has stated in
his statement under Section 313 Cr.P.C. that
he has been implicated on account of political
rivalry, but without considering it, he has
been convicted under Section 324 I.P.C.
Thus, the impugned judgment and order
passed by the learned trial court is not
sustainable and liable to be set aside.

5. Per Contra, learned AGA submits that
the impugned judgment and order has rightly
been passed in accordance with law for the
reason that the role of the appellant is not
only of instigation but he also caught hold of
the victim and raised alarm and asked the
other accused to fire and kill him, therefore,
he has rightly been convicted under Section
324 I.P.C. read with Sections 34 and 109
I.P.C. Thus, the appeal has been filed on
misconceived and baseless grounds, which is
liable to be dismissed.

6. I have considered the submissions of
learned counsel for the parties and perused
the records.

7. As per prosecution story, Pradeep
Kumar Tiwari son of Radhey Shyam
Tiwari, resident of Hadirahi Police Station
Lalganj, District Pratapgarh submitted a
handwritten application dated 16.12.1988
to the Kotwal Sahib of Kotwali Lalganj,
District Pratapgarh stating therein that
Sarvesh Kumar Dubey son of Ram
Manohar
Dubey,
resident
of
Kothar
Mangole had demanded Rs. 100 from him
10 days ago and when he did not pay the
amount to him, he was displeased with him
and said if you will not pay, it will cost you
dear. On the said date at 5 P.M., he was
going to Sagra Bazar from his house, when
Sarvesh Kumar Dubey and Rajiv Kumar
Mishra, resident of Paharpur (Dakinahan
Ka Purwa), Police Station Sangipur,
District Pratapgarh met him and Sarvesh
Kumar Dubey due to aforesaid displeasure
and enmity abused him and asked coaccused Rajiv Kumar Mishra to fire and to
kill him. He raised alarm. On raising alarm,
Rameshwar Prasad Tiwari son of Vishwa
Nath Tiwari, Harish Chandra Tiwari son of
Munnu Tiwari and others reached there and
chased Rajiv and Sarvesh but both of them
fled away. It was further alleged that he has
received fire arm injury of 'Katta' in his
abdomen. On the basis of said written
complaint, the First Information Report
(here-in-after referred as "FIR") was
lodged, which is Exhibit Ka-3 and the case
was registered under Sections 307, 504 of
I.P.C. in Crime No. 396 of 1988 against the
aforesaid accused(s). The complainant was
sent for medical examination. He was
examined by Superintendent/In-Charge,
up-graded P.H.C. Lalganj on 18.12.1888 at
11:00 P.M. and according to Exhibit Ka-2,
the following injuries were found on his
body:-

"Gun
shot
wound
of
entry
0.5cmx0.5cmx1cm deep as far easily
probed going downwards and outwards on
left side Abdomen lower part 6 cm out
5 All. Sarvesh Kumar Dubey & Anr. Vs. State of U.P.
95
from umbilicus at 4O' Clock position
abraded colter around the wound is present.
Oozing
of
blood
present.
Tattooing
present."

8. During investigation, memo of
taking into possession of coat, baniyan,
lungi and bushirt was prepared, which is
Exhibit Ka-5. Site plan was prepared by the
Investigating Officer on 22.02.1988, which
is Exhibit-Ka-6. After completion of
investigation, chargesheet dated 13.02.1989
under Sections 307, 504 I.P.C. was filed as
Exhibit Ka-7 against the aforesaid two
accused(s).

9. The case was committed to the
court of session. Therefore, the charge was
framed against the surviving appellantSarvesh Kumar Dubey under Section
307/34, 504 and 109 I.P.C. and against the
deceased appellant-Rajiv Kumar Mishra
under Section 307 I.P.C. on 27.04.1991.
The appellants denied the charge and
claimed to be tried.

10. Prosecution examined Pradeep
Kumar Tiwari as P.W. 1, Dr. P.N. Singh as
P.W. 2 and Investigating Officer Rajendra
Prasad Singh as P.W. 3. After completion of
prosecution evidence, statement of accused
under Section 313 Cr.P.C. was recorded.
Accused Sarvesh Kumar Dubey denied the
charge and said that uncle of Pradeep Kumar
Tiwari was candidate for Gram Pradhan
Election and he was with rival candidate and
due to this enmity, he has been falsely
implicated. The deceased appellant-Rajiv
Kumar Mishra also denied the charge and
stated that due to election enmity, he has been
falsely implicated. Thereafter, after hearing
learned counsel for the parties, the appellants
were convicted and sentenced as disclosed
above. Being aggrieved with the same the
instant criminal appeal has been filed.

11. P.W. 1-Pradeep Kumar Tiwari, who
is a witness of fact and injured person stated
that both the accused are 'Badmas Type'
persons. On 16.12.1988, he was going from
Sagra Bazar to his house, when he reached
north to Sagra Bagh near Lal Gupta Khet,
then accused(s) Sarvesh and Rajiv met him;
accused Sarvesh asked have you brought the
money, then he said he had no money and he
will not pay. When this talk was going on, he
stopped Sarvesh to not abuse him, then he
caught hold him from back and raised alarm;
then Sarvesh exhorted to fire as he does not
pay the money, "Mar do sale ko goli paisa
mangne par nahin deta hai." On his
instigation, the deceased appellant-Rajiv
Kumar Mishra took out 'Katta' from pocket of
his pant and fired. He received 'Katta' injury
in left side of his abodmen and fell down.
Thereafter, the accused persons were running
away then on raising alarm, Rameshwar
Prasad, Harish Chandra and other village
people reached there, and they had taken him
to a doctor who advised for lodging of F.I.R.,
then his father, his grandfather and other
people took him to the police station where
he filed FIR. He was taken to hospital by
police for medical examination and on the
next day, X-Ray was made in District
Hospital, Pratapgarh. He further stated that
when accused(s) demanded Rs. 100/- from
him, he told them that he had got no money,
then he asked him to take money from others
and if you will not pay, it will cost him dear.
Since he had not paid money, therefore, he
was attacked. The witness was crossexamined on three dates, in which also he
supported the prosecution story.

12. In cross-examination, P.W. 1
stated that he was wearing Tahmad,
baniyan, shirt and coat. When he left his
house it was dark and it was moonlight. He
had gone Sagra for medicine for his child.
He had purchased medicines from Vinaya
96 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Stores and reached Sagra Bazar at
about 07:15. He further stated that in Sagra
Bazar, Rajiv demanded money from him.
At that time, there was no other person. He
was sitting in the shop of Rajiv Kumar
Mishra, when Sarvesh Kumar called him
and as he reached near him, Rajiv
demanded Rs. 100 at around 11 and 11:30
but he replied from where he will pay. He
got no money. Then he said if you will not
pay money, it will cost you dear. It took
only one minute in this conversation. When
Sarvesh caught hold him from back and
exhorted 'Mar do sale ko aesa mauka phir
nahin milega', then he raised alarm and
people of abadi reached there because he
had become unconscious. The attack was
made upon him in the field at a distance of
two hand from the chak-road. He gained
conscious after one hour. He can not say
what happened in between this one hour.
He gained conscious when he reached
Sagra. He prepared FIR at Lalganj
Chauraha, which is at a little distance from
police station. He went to police station as
he thought that it is necessary to file FIR.
Thus, P.W. 1, who is injured, has proved
the charge against the accused appellant
and nothing can be extracted from him in
cross-examination, which may raise any
doubt about his testimony.

13.
P.W.
2-Dr.
P.
N.
Singh,
Suerpintendent
of
up-graded
P.H.C.
Lalganj
has
proved
the
medical
examination report. He stated that on
16.12.1988 at 11 P.M., he conducted the
medical examination of Pradeep Kumar
Tiwari brought by Constable Ram Shanka
Yadav. He further stated that injury, at the
time of examination, was fresh and it was
of fire arm and might have been caused by
'Katta' on 16.12.1988. He further stated that
it might be caused by a distance of four
feet, from round is made. X-Ray was
performed by him in the P.H.C. in the XRay machine, which was available to him.
No 'chharra' was found in it. He further
stated that it is not necessary that by close
firing 'chharra' could be inside. Thus, P.W.
2 proved the injuries suffered by the
complainant i.e. P.W. 1. in the incident.

14. P.W. 3- Rajendra Prasad Singh,
Sation Officer, Jalalpur, District Jaunpur
has proved chick report, chargesheet and
site plan as well as the recovery memo.
Thus, the incident as well as injury suffered
by the complainant in the said incident has
been proved. Accordingly, the charge is
proved.

15. In view of above, charge on the
appellant no. 1-Sarvesh Kumar Dubey is
not only of instigation for fire but he also
committed an overt act by caught hold of
the complainant, therefore, the appellant
has rightly been convicted under Section
324 read with Sections 34 and 109 I.P.C.
and punished with the sentence provided
under Section 324 I.P.C.

16. Section 324 I.P.C. provides
voluntary causing hurt by dangerous
weapon or means and punishment for it.
Section 109 I.P.C. provides that whoever
abets any offence shall, if the act abetted is
committed in consequence of the abetment,
and no express provision is made by this
Code for the punishment of such abetment,
be punished with the punishment provided
for the offence. The explanation appended
to Section 109 I.P.C. provides that an act or
offence is said to be committed in
consequence of abetment, when it is
committed
in
consequence
of
the
instigation,
or
in
pursuance
of
the
conspiracy,
or
with
the
aid
which
constitutes the abetment. Section 34 I.P.C.
provides that when a criminal act is done
5 All. Sarvesh Kumar Dubey & Anr. Vs. State of U.P.
97
by several persons in furtherance of the
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone.

17. In view of above, since the offence
under Section 324 I.P.C. in the case in hand
has been committed in furtherance of
common
intention
on
the
instigation/abetment by the appellant, who
not
only
instigated/abetted
the
other
accused but also assisted him by his overt
act
of
catching
hold
of
the
informant/injured, therefore, he was also
liable to be punished for the same offence.
Thus, he also has rightly been convicted
and the sentence has also rightly been
awarded to him. This Court does not find
any illegality or error in the findings
recorded by the learned trial court, after
considering the evidence of P.W. 1, P.W. 2
and P.W. 3 and on the basis of the material
on record, even if there are minor
discrepancies in their evidence which is
possibly due to time lapse in incident and
evidence. This Court does not find any
illegality
or
error
in
the
impugned
judgment and order, which may call for any
interference by this Court.

18. The Hon'ble Supreme Court, in the
case of Palakom Abdul Rahiman vs.
Station House Officer, Badiadka Police
Station, Kerala and another; (2019) 4
SCC 795, held that true purport of Section
34 I.P.C. is that if two or more persons
intentionally do an act jointly, the position
of law is just the same as if each of them
have done it individually. The relevant
paragraphs 22 and 23 are extracted
hereinbelow:-

"22. The true purport of Section
34 IPC is that if two or more persons
intentionally do an act jointly, the position
of law is just the same as if each of them
have done it individually, The process of
law is intended to meet a situation in which
it may be difficult to distinguish between
acts of individual members of a party who
act in furtherance of the common intention
as held by this Court in Chinta Pulla Reddy
v. State of A.P.3 and Girija Shankar v.
State of U.P.4

23. The application of principles
enunciated in Section 34 IPC, when an
accused is convicted under Section 302
read with Section 34 IPC, in law 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. As
was observed by this Court in Chinta Pulla
Reddy case3, Section 34 is applicable even
if no injury has been caused by the
particular accused himself. Applicability of
Section 34 has been considered by this
Court in Girija Shankar case4 as follows:
(SCC p. 797. para 9)

"9. 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 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 minds of all the
98 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the moment; but it must necessarily
be before the commission of the crime. The
true concept of the section is that if two or
more persons intentionally do an act
jointly, the position in law is just the same
as if each of them g has done it individually
by himself. As observed in Ashok Kumar v.
State of Punjab, 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.""

19. Similar view has been taken by the
Hon'ble Supreme Court in the case of State
of Punjab vs. Hakam Singh; (2005) 7
SCC 408.

20. A Division Bench of this Court, in
the case of State of Uttar Pradesh vs.
Virendra
Kumar
and
others;
MANU/UP/0911/2008, held that it is not
the presence or absence of witnesses, which
should be the determining factor. The court
has to see whether the evidence produced by
the prosecution is credible and worthy of
reliance. The attitude of the trial court in
suspecting the prosecution version, merely
because, the independent witnesses were not
produced, is unwarranted and unjustified. The
court should examine the evidence which has
been
produced,
and
draw
appropriate
conclusion. It has further been held that while
evaluating the evidence by the trial court,
resort must be made to the 'coherence Theory
of Law' as propounded by A. Peczevik in his
book on 'Law and Reason', University of
Lund Sweden with a preface by J.C. Hage.

21. The Hon'ble Supreme Court, in the
case of Jodhraj Singh vs. State of
Rajasthan; (2007) 15 SCC 294, has held
that conviction can even be based on
testimony of a single witness and if upon
consideration of the evidence and material on
record, it is found that the common intention
on the part of the appellant exists, he can also
be convicted for the same offence. The
relevant paragraphs 14 to 17 are extracted
hereinbelow:-

"14. It is trite that only because a
witness, for one reason or the other, has, to
some extent, resiled from his earlier
statement by itself may not be sufficient to
discard the prosecution case in its entirety.
The courts even in such a situation are not
powerless. Keeping in view the materials
available on record, it is permissible for a
court of law to rely upon a part of the
testimony of the witness who has been
declared hostile.

15. The appellant was seen in the
company of the other accused. Sufficient
materials have been brought on records to
establish that he participated in commission
of the offence. All the accused persons came
together in a tempo. They were armed with
various
weapons.
They
assaulted
the
deceased. The learned Sessions Judge as also
the High Court found existence of a motive
for commission of the offence. They left the
place of occurrence together. It may be that
the ultimate cause of death was found to be
an assault by stone on the head of the
deceased which is said to be the act of
Bhupendra but only by reason thereof
existence of the common intention on the part
of the appellant cannot be said to be absent.

16. Reliance by the learned
counsel for the appellant on Mithu Singh v.
5 All. Sarvesh Kumar Dubey & Anr. Vs. State of U.P.
99
State of Punjab4 [(2001) 4 SCC 193] is
misplaced. Therein, no overt act was
attributed to the appellant therein. The
court found that no evidence was brought
on records as against him, save and except
ipse dixit on the part of the witnesses. This
Court, in the aforementioned fact situation,
opined:

"6. To substantiate a charge
under Section 302 with the aid of Section
34 it must be shown that the criminal act
complained against was done by one of the
accused persons in furtherance of the
common
intention
of
both.
Common
intention has to be distinguished from same
or similar intention. It is true that it is
difficult, if not impossible, to collect and
produce direct evidence in proof of the
intention of the accused and mostly an
inference as to intention shall have to be
drawn from the acts or conduct of the
accused or other relevant circumstances,
as available. An inference as to common
intention shall not be readily drawn; the
culpable liability can arise only if such
inference can be drawn with a certain
degree of assurance. At the worst Mithu
Singh, accused-appellant, knew that his coaccused Bharpur Singh was armed with a
pistol. The knowledge of previous enmity
existing between Bharpur Singh and the
deceased can also be attributed to Mithu
Singh. But there is nothing available on
record to draw an inference that the coaccused Bharpur Singh had gone to the
house of the deceased with the intention of
causing her death and such intention was
known to Mithu Singh, much less shared by
him. Simply because Mithu Singh was
himself armed with a pistol would not
necessarily lead to an inference that he had
also reached the house of the deceased or
had accompanied the co-accused Bharpur
Singh with the intention of causing the
death of Gurdial Kaur. In our opinion, an
inference as to Mithu Singh, accusedappellant having shared with Bharpur
Singh a common intention of causing the
murder of the deceased Gurdial Kaur
cannot be drawn. His conviction under
Sections 302/34 IPC cannot be sustained
and must be set aside."

Such is not the position here.

17. In Vaijayanti Vs. State of
Maharashtra5, [(2005) 13 SCC 134], as
regards formation of common intention,
this Court opined: (SCC p. 138, para 9)

"Section 34 of the Indian Penal
Code envisages that "when a criminal act
is done by several persons in furtherance of
the common intention of all, each of such
persons, is liable for that act, in the same
manner as if it were done by him alone".
The underlying principle behind the said
provision is joint liability of persons in
doing of a criminal act which must have
found in the existence of common intention
of enmity in the acts in committing the
criminal act in furtherance thereof. The
law in this behalf is no longer res integra.
There need not be a positive overt act on
the part of the person concerned. Even an
omission on his part to do something may
attract the said provision. But it is beyond
any cavil of doubt that the question must
be answered having regard to the fact
situation obtaining in each case.""

22. In view of above and considering
the overall facts and circumstances of the
case and the evidence adduced, this Court
does not find any illegality or error in the
impugned judgment and order, which has
been
passed
after
considering
and
evaluating the evidence and material on
record in accordance with law by reasoned
and speaking order. The appeal has been
filed
on
misconceived
and
baseless
grounds.
100 INDIAN LAW REPORTS ALLAHABAD SERIES

23.
The
appeal
is,
accordingly,
dismissed.
----------
(2025) 5 ILRA 100
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MADAN PAL SINGH, J.

Criminal Appeal No. 538 of 2021
Connected with
Criminal Appeal No. 461 of 2021

Ramdev ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Om Narayan Pandey, Vindesh Kumar

Counsel for the Respondent:
G.A., Sandeep Kumar Dubey

(A)
Criminal
Law
-
Circumstantial
evidence - Last seen theory - Indian Penal
Code, 1860 - Sections 302, 201 & 120-B -
Admissibility
of
secondary
evidence
(photostat copy) - Indian Evidence Act,
1872 - Sections 63 & 65 - Forensic Science
Laboratory report - Chain of custody -
Reliability of family members as last seen
witnesses - Strong suspicion cannot take
the place of proof - Chain of circumstantial
evidence must be complete - Prosecution
must prove its case beyond reasonable
doubt - Mere suspicion or incomplete
chain
of
events
is
insufficient
for
conviction - last seen theory not sufficient
where significant time gap exists and
independent
corroboration
is
absent.
(Paras - 28, 31, 35-39, 44-62, 55, 58, 61,
62)

Deceased last allegedly seen with accusedappellants - delay in lodging FIR - prosecution
rested on circumstantial evidence and "last
seen" theory - recovery memo of weapon
exhibited as secondary evidence - forensic
evidence questioned - conviction by trial court -
appeal against conviction. (Paras - 3-25)

HELD: - Prosecution could not prove its case
against accused-appellants beyond reasonable
doubt. Trial court erred in reliance on "last
seen" testimonies and incomplete chain of
circumstances. Conviction based on suspicion
unsustainable.
Impugned
conviction
and
sentence set aside. Accused Ram Dev to be
released forthwith unless wanted in any other
case. Accused Laddan, on bail, not required to
surrender. Bail bond discharged. (Paras - 62-65)

Appeals allowed. (E-7)

List of Cases cited:

1. Kaliya Vs St. of M.P., (2013) 10 SCC 758

2. St. of Goa Vs Pandu Rang Mohite , AIR 2009
SC 1066

3. Sharad Birdhichand Sarda Vs. St. of Maha.,
(1984) 4 SCC 116

(Delivered by Hon'ble Madan Pal Singh, J.)

Preliminary

1. Both the criminal appeals are
directed against the impugned judgment
and order dated 7th December, 2020 passed
by the Additional Sessions Judge/POCSO
Act,
Court
No.43,
Shahjahanpur
in
Sessions Trial No. 487 of 2011 (State Vs.
Laddan and Another) under Sections 302,
201 and 120-B I.P.C. arising out of Case
Crime No. 107 of 2011, Police StationJalalabad, District-Shahjahanpur, whereby
accused-appellants Ram Dev and Laddan
have been convicted for the offence under
Section 302/34 and 201 of I.P.C. and have
been sentenced to rigorous imprisonment
for life along with Rs.20,000/- fine for
committing the offence under Section
302/34 I.P.C.; in default of payment of fine
to further undergo three months additional