# Tejpal (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 856
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-08
- **Case number:** Criminal Appeal No. 160 of 2011
- **Bench:** Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tejpal-in-jail-v-state-of-u-p-46165
- **Pages:** 9

## Headnote

matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal
Code,1860-Section
452,302challenge to-conviction- Contradictions in
deposition of PW-1 ,PW-2 & PW-3 - one
deceased received five fire arm injuries
and
anther
deceased
received
three
gunshot wounds-Though six persons were
involved, trial of
the
other
accused
brought acquittal to them- No other eye
witness has testified in favour of the
prosecution-
There
are
major
contradictions and no witness is testified
that it was accused alone who had fired
six times-The recovery of the pistol is also
not proved-The evidence is so scanty as
PW-6 cannot even recognise who had
fired on deceased- The witnesses have not
identified the accused- testimony of PW-1
though being a rustic villager does not
inspire
confidence-
The
incriminating
3 All. Tejpal Vs. State of U.P.
857
circumstances against the accused is only
that he was named in the F.I.R.- just
because the accused was named in the
F.I.R., he could not have been convicted
when on the same set of evidence, on the
basis of the charge sheet and the
evidence, the other co-accused, whose
role was assigned by the witnesses, have
been acquitted by the learned Judge.(Para
1 to 36)

The appeal is allowed. (E-5)

List of Cases cited:

## Text

856 INDIAN LAW REPORTS ALLAHABAD SERIES
vesting. I have perused the Government
Order dated 2.4.1999 as well as the
Government Order dated 1.7.1999, which
indicates that the State Government has
only transferred the property for its
management to the Gram Panchayat. There
is no whisper in the Government Orders'
that the property was to vest absolutely
with the Gram Panchayat. Further, section
34 of the Panchayat Raj Act, indicates that
vesting of the property to the Gram
Panchayat is in relation to "direction,
management and control". It is therefore,
clear, that there is no absolute right given to
the Gram Panchayat with regard to the
ownership of the property and that the
vesting is only confined to direction,
management and control and that too, till
such time as the State Government
requires.

15.The Supreme Court in the case
of Maharaj Singh (supra) held that the
word
"vesting"
connotes
different
meanings and has to be interpreted in the
manner and in the context as used in the
provision. Therefore, while interpreting
section 34 of the Act harmoniously, I am
of the opinion, that the word "vest", used
in section 34, means the enjoyment of the
property so long as it last and that it is
not an absolute vesting and is only a
transfer of the property for a limited
purpose, namely for a direction, control
and
management.
Thus,
the
State
Government was justified in issuing the
order for transferring the property back to
the parent department."

16. In view of above this court does
not find any illegality or error in the
impugned orders. The authorities have
passed the reasoned and speaking orders
on the basis of evidence and material on
record. The writ petition is misconceived
and lacks merit.

17. The writ petition is, accordingly,
dismissed. No order as to costs.
----------
(2021)03ILR A856
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2020

BEFORE

THE HON'BLE KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 160 of 2011

Tejpal ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anil Srivastava, Sri Amit Mishra, Sri
Anadi Krishna Naraya, Sri D.K. Srivastava,
Sri Dina Nath Joshi, Sri H.K. Singh, Sri
Ramesh Pundir, Smt. Rekha Pundir.

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal
Code,1860-Section
452,302challenge to-conviction- Contradictions in
deposition of PW-1 ,PW-2 & PW-3 - one
deceased received five fire arm injuries
and
anther
deceased
received
three
gunshot wounds-Though six persons were
involved, trial of
the
other
accused
brought acquittal to them- No other eye
witness has testified in favour of the
prosecution-
There
are
major
contradictions and no witness is testified
that it was accused alone who had fired
six times-The recovery of the pistol is also
not proved-The evidence is so scanty as
PW-6 cannot even recognise who had
fired on deceased- The witnesses have not
identified the accused- testimony of PW-1
though being a rustic villager does not
inspire
confidence-
The
incriminating
3 All. Tejpal Vs. State of U.P.
857
circumstances against the accused is only
that he was named in the F.I.R.- just
because the accused was named in the
F.I.R., he could not have been convicted
when on the same set of evidence, on the
basis of the charge sheet and the
evidence, the other co-accused, whose
role was assigned by the witnesses, have
been acquitted by the learned Judge.(Para
1 to 36)

The appeal is allowed. (E-5)

List of Cases cited:

1. Jagdish Prasad & Ors Vs St. of M.P.(1995)
SCC (Cri) 160

2. Smt. Chintambaramma & Anr. Vs St. of
Karnataka(2019) 3 JIC 560 SC

3. Vadivelu Thevar Vs St. of Madras(1957) AIR
SC 614

4. Ravi Vs. St. (2008) 15 SCC 115

5. Ganesan Vs St. CRLA No. 680 of 2020

6. Ram Bihari Yadav Vs St. of Bih.(1998) AIR SC
1850

7. Badam Singh Vs St. of M.P.(2003) 12 SCC
792

8. Chunthu Ram Vs St. of Chhattisgarh(2020) 10
SCC 733

9. Subed Ali Vs. St. of Assam (2020) 10 SCC 517

(Delivered by Hon'ble Gautam
Chowdhary, J.)

.1 . By way of this appeal the appellant
has challenged the judgement and order
dated 21.12.2010, passed by Additional
Sessions Judge, Fast Track Court No.1,
Baghpat, in Sessions Trial No. 488 of 2006
(State Vs. Virpal and others) and Sessions
Trial No. 489 of 2006 (State Vs. Tejpal),
whereby the accused- Tejpal was convicted
and sentenced for commission of offence
under Section 452 I.P.C. for three years
rigorous imprisonment with fine of Rs.
5000/- and for commission of offence u/s
302 I.P.C. for life imprisonment with fine
of Rs. 50,000/-

2. The learned Judge acquitted all the
other co-accused and convicted the present
accused for commission of offence under
Section 302 I.P.C. with fine of Rs. 50,000/-
. The moot question which has been raised
is could accused who were all facing
charges under Section 302 I.P.C. could be
acquitted on the same set of evidence led
before the learned trial court.

3. Brief facts of this case are that an
F.I.R. was lodged by the informant Jai
Bhagwan against the accused/appellant
alleging therein that on 18.9.2004 at about
10:30 am. when he was at his grocery shop,
he heard firing at late Baburam's house.
After hearing that sound, he was going to
Baburam's house and at that time deceasedAjay, nephew of the informant came
running and shouting for help to the
informant from Baburam's house. Accused-
Tejpal and his three other companions
came there following Ajay. All the four
persons were armed with country-made
pistols. On seeing the informant, the
deceased asked for help and said that
Tejpal had fired at him and he fell on the
road (khadanja). Thereafter, all the four
accused opened fire at the deceased- Ajay,
whereupon he died on the spot. The
informant went to Baburam's house where
he found the dead body of Baburam's son,
namely, Deepak @ Kale, covered in blood,
on the cot in the living room. In that living
room deceased Deepak and Ajay were
there with other villagers when the accused
Tejpal and three others opened fire at
Deepak and Ajay. Deepak died on the spot
858 INDIAN LAW REPORTS ALLAHABAD SERIES
on cot and Ajay in order to save his life
tried to flee away but the accused followed
Ajay and by indiscriminate firing killed
him. The incident took place in front of
many villagers but nobody could dare to
catch the accused persons. The accused ran
away towards fields on western side,
hurling threats that whosoever would try to
find them, he too would be met with similar
consequence.

4. After the investigation was over,
charge-sheet was filed against the accused.
As the case was exclusively triable by the
court of sessions, the same was committed
to the sessions court. Charges were framed
by
the
trial
court
against
all
the
accused/appellant who pleaded not guilty
and claimed for trial.

5. The prosecution, in order to prove
its case, examined 11 witnesses as under :-

1.
Jai Bhagwan
PW-1
2.
Sanjiv Kumar
PW-2
3.
Smt.
Prembala
Devi
PW-
4.
Sonu Upadhyay
PW4
5.
Dr. S.K. Tyagi
PW-5
6.
Rajendra @ Leelu
PW-6
7.
S.I.
Rajendra
Singh Yadav
PW-7
8.
Meerpal Singh
PW-8
9.
Sheelchand Tyagi
PW-9
10. Jagdish Bhatnagar
PW-10
11. S.I. Sethpal Singh
PW-11

6. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence

1.
Chik F.I.R.
Ex.ka.1
2.
Post
mortem
report of Ajay
Ex.ka.2
3.
Post
mortem
report of Deepak
Ex.ka.3
4.
Panchayatnama of
dead
body
of
Deepak
Ex.ka.4
5.
Photo nash
Ex.ka.5
6.
Chalan Nash
Ex.ka.6
7.
Letter to C.M.O.
Ex.ka.7
&
Ex.ka.8
8.
Panchayatnama of
dead body of Ajay
Ex.ka.9
Ex.ka.9
9.
Sample of simple
soil
Ex.ka.14
10.
Sample of blood
stained cot
Ex.ka.15
11.
Recovery of live
and
empty
cartridges
Ex.ka.16
12.
Sample of blood
stained and plain
soil
Ex.ka.17
13.
Site Plan
Ex.ka.18
14.
G.Diary
Ex.ka.22
15.
Chik entry
Ex.ka.23
16.
Charge Sheet
Ex.ka.25

7. We had deferred the judgement on
3.2.2021 as we wanted some clarifications
which have been made by Sri D.K.
Srivastava,
learned
counsel
for
the
appellant.

8. Heard Sri D.K. Srivastava, learned
counsel, assisted by Sri H.K. Singh, learned
counsel for the appellant and Sri N. K.
Srivastava, learned counsel for the State

9. Learned counsel for the appellant
has submitted that learned Judge could not
have convicted the accused when the
evidence was scanty and when the other
accused were held not guilty on the same
set of evidence. All the accused were
3 All. Tejpal Vs. State of U.P.
859
exonerated for offence u/s 25 Arms Act. He
has further submitted that recovery was
also not proper and conviction of the
accused on inculpatory statement was also
not proper. Most of the witness testified
that Tejpal as well as Pintu were causing
injuries which is also borne out from the
oral testimony of PW-1 and therefore, has
asked for acquittal of the accused. Learned
counsel for the appellant has placed
reliance on judgements of Apex Court
titled (i) Jagdish Prasad and others Vs.
State of M.P., reported in 1995 SCC
(Cri) 160, (ii) Smt. Chintambaramma &
Anr. Vs. State of Karnataka, reported in
2019 (3) JIC 560 (SC) and (iii) Vadivelu
Thevar Vs. State of Madras, reported in
AIR 1957 SC 614.

10. Per contra learned counsel for the
State has submitted that it has been
conclusively proved that it was Tejpal alone
who had caused death of both the deceased.
The learned A.G.A. has placed reliance on
the judgement of Apex Court in Ravi vs.
State, reported in (2008) 15 SCC 115 and
Ganesan vs. State which is a recent
judgement in Crl. Appeal No. 680 of 2020,
decided on 14.10.2020.

11. Learned counsel for the appellants
has advanced the following points to be
discussed:

(i) whether the testimony of P.W.-
1, namely, Jai Bhagwan, is beyond doubt and
proves the case against Tejpal;

(ii) whether the testimony deposed
by PW-1 is believable that all the injuries
were caused by a single person;

(iii) whether the injuries mentioned
in the post mortem report can be caused by
single country made pistol (katta) and;

(iv) on same set of evidence
which has been led before the trial court the
appellants just because the accused was
named in the F.I.R., he could be convicted
when on the same set of evidence the other
co-accused, whose role was assigned by the
witnesses, have been acquitted by the
learned Judge.

12. While discussing the first point it
is relevant to mention that learned counsel
for the appellant has drawn our attention to
the statement of P.W.-1 who has stated in
his statement recorded on 17.1.2008 as
below:

"mlh le; vt; Hkkxrk gqvk o 'kksj
epkrk gqvk fd^^ rkm cpkvks] rkm cpkvks ^^ esjh rjQ
vk;kA mlh le; mlds ihNs esjs xkao dk rstiky
vkSj erkuru ej xkao dk fiUVw vkSj nks vU; vkneh
vius gkFkksa esa reaps fy;s gq;s vk;sA vt; us eq>s
ns[krs gh dgk fd rkm eq>s cpk ysaA rstiky us eq>s
xksyh ekj nh gSa vt; esjs ikl [kMats ij fxj iMkA
eSaus vt; dks mBkus dh dksf'k'k dh vkSj eqfYteku dks
MkVk rks bUgksus eq>s xksyh ekjus dh /kedh nhA"

Here the PW-1 is stating that
Ajay told him that Tejpal had fired at him.
Then the learned counsel has pointed out
the statement of PW-1 recorded as under:-

"?kVuk ls iUnzg fnu igys Hkh rstiky ls
>xMk gqvk FkkA blh jaft'k dh otg ls rstiky o
fiUVw o buds lkfFk;ksa us vt; o nhid dks ekjk gSA
?kVuk dh fjiksVZ eSus Fkkus esa djk;h FkhA"

Here
the
PW-1
states
that
accused- Tejpal and Pintu along with other
accused assaulted deceased Ajay and
Deepak. First he said that deceased Ajay
was shot by accused- Tejpal and now he is
stating that both accused- Tejpal and Pintu
along with other accused fired at him.
Learned counsel has further drawn our
attention to statement of PW-1 recorded as
under:-
860 INDIAN LAW REPORTS ALLAHABAD SERIES

"tks rstiky o fiUVw ds lkFk vU; nks
O;fDr Fks mudks eSaus ns[kk ugha FkkA eSa mudks lkeus
vkus ij igpku ugha ldrk gkftj vnkyr eqfYte
lat; mQZ fiUVw dks ns[kdj dgk fd ;g ?kVuk esa
'kkfey ugha FkkA vkt ls igys eSaus bldks dHkh ugha
ns[kkA"

Now here again the testimony of
PW-1 is creating a doubt who states that he
had not seen the other person.

13. On 27.2.2008 the PW-1 has stated
as follows:-

- ";g ?kVuk ckcwjke ds ?ksj esa gqbZ FkhA
?ksj esa tgka ?kVuk gqbZ ogka lksuw o ujsUnz] yhyw fuoklh
lSaMFkj vkSj vt;] dkys vkfn Fks buds vykok dksbZ
vkSj gks rks eq>s /;ku ugha gSA eSa ?ksj esa ekStwn ugha
FkkA budks ogka cSBs gq;s eSus ugha ns[kk FkkA eSaus budks
Hkkxdj esjs ikl vkrs ns[kk FkkA ckcwjke dh cSBd ls
djhc vkB xt nwjh ij eSa FkkA eSa [kMts ij [kMk FkkA

- ckcwjke dh cSBd esa ikSfM;ka Hkh yxh gSA
eSa ikSfM;ksa rd ugha x;k FkkA igys gh esjk Hkrhtk
vt; Hkkxrk gqvk vk x;k FkkA eSaus ckcwjke dh cSBd
esa pyh xksfy;ka ugha fxuh FkhA vkokt lquh FkhA esjs
vykok vU; cSBs yksx Hkkxdj vius&vius ?kjksa ij
pys x;s FksA dsoy eSa gh ckcwjke dh cSBd dh rjQ
pyk FkkA"

Here he states that at the place of
incident where first fire took place, he was
not there and he again states that he had not
seen the incident rather he was not present
there. PW-1 has further stated as under:-

"vt; us eq>s dsoy ;gh dgk Fkk fd
rkÅ eq>s cpkvksA mlus eq>s ;g Hkh dgk Fkk fd eq>s
rstiky o fiUVw ekj jgs gS vkSj bruk dgrs gh og ej
x;k FkkA"

PW-1 is only stating that Ajay told
him that Tejpal and Pintu were assaulting so
he cannot be said to be eye witness at all as
he was conveyed by Ajay. He is saying that
this was told by Ajay and here again he is
saying that there were four persons who
caused this incident. Later he discloses that
all four persons were firing. All these
statements were deposed by the PW-1 on
27.2.2008.

14. Again on 11.3.2008 statement of
PW-1 proceeded and at Page-44 of the paper
he narrates:

"vt; us eq>ls vkdj dgk Fkk fd rkÅ
cpkb;s fd eq>s ekj fn;k gSA blds ckn eqyfteku us
vt; dks xksyh ekjh rc vt; ejk FkkA ikap&pkj xksyh
ekjh FkhA xokg us dgk fd xksyh ckjhd&ckjhd FkhA
xokg us maxyh dk b'kkjk djds crk;k fd xksyh pus ds
cjkcj Fkh ysfdu b'kkjs ls ikSjok ds cjkcj crk;kA
eqyfteku us eq>s xksyh ugha ekjh FkhA ;s xksfy;ka
pkj&ikap dsoy rstiky us ekjh FkhA esjs vykok
txrflag iq= jktkjke] lwjtiky iq= xksfoan] jkepUnz
iq= Hkjrw us Hkh xksfy;ka pykrs gq;s rstiky dks ns[kk FkkA
eqyfte fiUVw lrkuruxj dk gSA us ckgj xksfy;ka ugha
pyk;h] ysfdu edku ds vanj mlus xksfy;ka pyk;hA
xksfy;ka fdruh pyk;h] /;ku ugha gSA"

Here
he
clearly
states
Ajay
conveyed him. Here he says that all the
accused fired at deceased as he is using the
word
'mulziman'
and
not
'Mulzim'.
'Mulziman' is plural whereas 'Mulzim' is
singular. Here he is disclosing that all the
accused participated but in his crossexamination he comes up with a new story
and states that only Tejpal fired and the rest
accused were standing. Further he states in
cross-examination as under:

"iz'u& gekjk ;g dguk gS fd
vt; ij pkjks eqyfteku rstiky] ohjiky] eukst
vkSj fiUVw us ,d&,d xksyh pyk;h Fkh u fd rstiky
us lkjh xksfy;ka pyk;h\

mRrj& eSaus xksfy;ka pykrs gq;s rstiky dks ns[kk
FkkA ckdh yksx gfFk;kj fy;s gq;s ogka [kMs FksA"

15. While discussing this part of the
testimony, it appears that here PW-1 has
taken U-turn and discloses that only Tejpal
was firing and rest were standing which is
3 All. Tejpal Vs. State of U.P.
861
very hypothetical, from beginning he never
stated that only Tejpal fired.

16. Now in conclusion we draw that
the testimony of PW-1 is highly doubtful
and it cannot be said to be beyond doubt as
he is continuously changing his version.

17. On this point the appellant relied
upon judgement of the Apex Court in
Jagdish Prasad and others vs. State of
M.P., reported in 1995 SCC (Cri) 160, in
which the Apex Court clearly has classified
three types of testimony; one is wholly
reliable, the other is wholly unreliable and
third is neither wholly reliable nor wholly
unreliable. Perused that in case of third
category cases, the court has to be
circumspect
and
has
to
look
for
corroboration in the material particularly by
reliable
testimony
either
direct
or
circumstantial. The relevant portion reads
as follows:-

"As a general rule, a court can and
may act on the testimony of a single witness
though
uncorroborated
provided
the
testimony of that single witness is found out
entirely reliable. In that case, there will be no
legal impediment for recording a conviction.
But if the evidence is open to doubt or
suspicion, the court will require sufficient
corroboration. In this connection, reference
may be made to a decision of this Court in
Vadivelu Thevar v. State of Madras, wherein
this Court has classified the testimony of a
witness into three categories. viz. (1) wholly
reliable (2) wholly unreliable, and (3) neither
wholly reliable nor wholly unreliable and
observed that though in the first two
categories of classification, there may not be
any difficulty in coming to a conclusion either
accepting or rejecting the testimony but it is
in the third category of cases that the court
has to be circumspect and has to look for
corroboration in material particulars by
reliable
testimony
either
direct
or
circumstantial."

18. While discussing second and third
point when we go through the post mortem
report. From perusal of the post mortem
report there are five injuries. At one place
PW-1 also says that it took one minute
only, so it is vehemently argued by the
learned counsel that it is not corroborating
with the testimony of PW-1 as it is not
possible for one single man to fire four or
five shots within one minute by a country
made pistol.

19. Now in the conclusion we are of the
view that this. The testimony of PW-1 is not
corroborating with the injuries.

20. While discussing the fourth point,
we have gone through the judgement of the
Court below and relevant part, which is
required to be discussed, is at Page-123 of
paper book which reads as under:-

"nkSjku
foospuk
foospd
us
oknh
t;Hkxoku ;kno] csxjkt flag] jktw mQZ latho o
Jherh izseokyk ;kno o "kM;U= ds lEcU/k esa lksuw
mik/;k;] yhyw ;kno }kjk vkSj xokg iapk;rukek jkew
;kno] ujsUnz ;kno] jktohj jkeNSy 'kekZ dk lk{;
,d= fd;k vkSj mijksDr p{kqn'khZ lk{kh ds lk{; ds
vk/kkj ij vfHk;qDrx.k ohjiky] eukst] rstiky ds
fo:) fnukad 29&10&04 esa vkjksi i= izsf"kr fd;k o
vfHk;qDr /kesZUnz mQZ ykyk iq= bUnzthr o lat; mQZ
fiUVw iq= Jh t;dj.k ds fo:) fnukad 21&01&05 esa
vkjksi izsf"kr fd;kA ,d vU; vfHk;qDr fiUVw mQZ
jktohj ftldk uke nkSjku foospuk izdk'k esa vk;kA
mls iqfyl eqBHksM+ esa fnukad 13&12&04 esa ekj fn;k
x;kA

?kVuk ds p{kqn'khZ lk{kh esa oknh eqdnek
t;Hkxoku] jktho dqekj] Jherh izseckyk nsoh dks
izLrqr fd;k x;kA lk{kh ih0MCyw0&4 lksuw mik/;k; us
vfHk;kstu i{k ds dFkkud ds leFkZu esa dksbZ lk{;
izLrqr ugha fd;kA bl lk{kh dks vfHk;kstu i{k }kjk
i{knzksgh lk{kh ?kksf"kr fd;k x;kA ".
862 INDIAN LAW REPORTS ALLAHABAD SERIES

21. While discussing this question it is
relevant to mention here that if all the shots
were fired by accused Tejpal then question
would arise where are the empty cartridges.
In record it comes that one empty cartridge
was recovered from the room where
deceased- Deepak was shot. As story
narrated by PW-1 become erroneous
default and unproved as neither the pistol
nor the empty cartridges were recovered
from spot. It can be said that pistol may not
be recovered but when the incident took
place at one place and all the shots were
fired by single accused then why the
cartridges are recovered from the room
where Deepak was shot and in his
testimony the PW-1 clearly stated that he
never visited the room where Deepak was
shot dead or fire took place. From
beginning he was stating that all four
persons participated later he converted that
only two persons were firing and at last he
converted himself that only the accused
Tejpal was firing.

22. We are unable to comprehend
certain
facts
by
going
through
the
testimony of PW-1. We cannot hold that he
is intact eye witness of fact. Adverted to
oral testimony of PW-1, it is very doubtful
whether he was, in fact, present at the place
of occurrence. The decision of the Apex
Court in the case of Vadivelu Thevar Vs.
State of Madras, AIR 1957 SC 614, which
is based on the fact that the contention that
in a murder case, the Court should insist
upon plurality of witnesses, is much too
broadly stated. However, the later decision
goes to hold that it is quality which matters
and not quantity. In our case can it be said
that accused and accused alone could be
convicted when all the accused were
charged for harbouring common intention.
Prosecution story proceeded on the basis
that the accused were conspirators but
failed to prove the charge of conspiracy.
Moreover, testimony of PW-1 cannot be
said to be circumstantial evidence also as it
not corroborates with the other evidence.
As above it has been discussed that the
testimony of PW-1 is not beyond doubt,
hence after discussing all the records and
perusing the judgement of the lower Court
too as well as the case law, we are of the
view that the appellant is not guilty.

23. PW-1 is changing version during
his recording of evidence and that other
witnesses only support him up to the extend
that Ajay conveyed that accused had fired.
None of the other witnesses clearly stated
that the accused fired all the four gun shots
on the deceased, rather they are only stating
that they had heard that accused had fired.
It appears that PW-1 has later been tutored.
In Smt. Chintambaramma & Anr. Vs.
State of Karnataka, reported in 2019 (3)
JIC 560 (SC), the Apex Court has held that
the
prosecution
must
prove
all
the
circumstances connecting unbroken chain
of links leading to only one inference that
the accused committed the crime. There is
no continuous chain of evidence.

24. The finding of conviction of the
sole appellant could not have been returned
by the court below. It is the evidence of
PW-1 which casts a shadow. Deceased
Ajay received five fire arm injuries and
Deepak received three gun shot wounds.
Though six persons were involved, trial of
the other accused brought acquittal to them.
No other eye witness has testified in favour
of the prosecution. There are major
contradictions and no witness is testified
that it was accused alone who had fired six
times. The recovery of the pistol is also not
proved. The evidence is so scanty as PW-6
cannot even recognise who had fired on
deceased, Deepak or Ajay. The witnesses
3 All. Tejpal Vs. State of U.P.
863
have not identified the accused. The case
diary also throws some light and even if we
go by the submission of the learned
A.G.A.,
accused-
Tejpal
had
only
instigated. It is nobody's case that gun shot
injuries were caused by Tejpal. Other
accused-
Manoj
Pal,
Sanjay
and
Dharmendra were acquitted.

25. The judgements of the Apex
Court relied by the learned counsel for
appellant would come to the aid of the
accused. The decision of the Apex Court in
the case of Ram Bihari Yadav vs. State of
Bihar, AIR 1998 SC 1850 would come to
the aid of the accused.

26. The fact that the legal position as
set out cannot permit us to concur with the
learned Judge who has convicted the
accused on the premise that the F.I.R.
disclosed the name of all the accused.

27. We have already held that
testimony of PW-1 though being a rustic
villager does not inspire confidence. Sanjiv
Kuamr (PW-2) has been believed and
Prembala Devi (PW-3) has also been
believed. Though they have not supported
the
prosecution
despite
that
much
weightage is given to their testimony.

28. The recovery u/s 27 Arms Act
was also not from Tejpal and, therefore, the
interested witnesses have been examined.
The learned Judge, after relying on the
decision in Badam Singh vs. State of
M.P., reported in (2003) 12 SCC 792, has
come to the conclusion that no case is made
out under Sections 149, 120-B, 148, 452,
302 I.P.C. against the other accused and
also acquits the accused- Tejpal for
commission of offence u/s 25 Arms Act but
convicts him under Section 452 read with
302 I.P.C.

29. The discussion herein above and
the evidence which we have perused and
discussed at times in Hindi, will not permit
us to concur with the learned Judge.

30. We can easily place reliance on
Chunthu Ram vs. State of Chhattisgarh,
reported in (2020) 10 SCC 733, wherein
also in view of serious infirmities in
prosecution evidence, the conviction of the
sole appellant was reversed as in that case
also recovery of alleged weapons, on the
basis of statement of accused, was not
linked to the crime. The vital forensic
evidence was withheld by prosecution,
there were infirmities in our case as to the
oral testimony of the witnesses. The benefit
of doubt will have to be given to the
accused as it is not proved by the cogent
evidence that the evidence adduced pointed
to the guilt of accused and accused alone.
In that view of the matter we also hold that
accused could not have been convicted.
The foundation of conviction on the basis
of common intention and constructive
liability have been summarised by the
Apex Court in Subed Ali Vs. State of
Assam, 2020 10 SCC 517

31. For the reasons to be recorded, we
are convinced that the judgements relied by
the learned counsel for appellant would
enure for the benefit of the accused also.

32. The reason being of the same set
of evidence which has been led before the
trial court just because the accused was
named in the F.I.R., he could not have been
convicted when on the same set of
evidence, on the basis of the charge sheet
and the evidence, the other co-accused,
whose role was assigned by the witnesses,
have been acquitted by the learned Judge.
The witnesses who have deposed their
statements were recorded belatedly. The
864 INDIAN LAW REPORTS ALLAHABAD SERIES
incriminating circumstances against the
accused is only that he was named in the
F.I.R.

33. We have been taken through Page
No. 123 of the paper book once again
today. The judgement of Rambali Vs.
State of U.P., on which heavy reliance has
been placed by the State, the facts are
different.

34. The judgement of Ravi (supra)
also would not come to the aid of the State
as Mallikarjun. The facts are entirely on a
different canvas.

35. The judgement of this High Court
and the Apex Court in Jagdish Prasad
(supra)
and
Smt.
Chintambaramma
(supra) would go to show that once there is
lack of common intention, no doubt if there
are startling witnesses and the evidence,
only then the accused can be convicted. In
our case while going to the deposition of Jai
Bhagawan (PW-1) and Sanjiv Kumar (PW2) as well as Prem Bala Devi (PW-3), we
find that there are certain contradictions
which would go in favour of the accused.

36. We have no other option but to
acquit the accused. The conviction is
reversed.

37. The accused is in jail for more than
10 years. He be set free immediately, if not
needed in any other offence.

38. Record and proceedings be sent
back to the trial court.

39. We are thankful to learned counsel
Sri D.K. Srivastava assisted by Sri H.K.
Singh, learned counsel for the appellant and
Sri N. K. Srivastava, learned counsel for the
State for ably assisting this Court.
----------
(2021)03ILR A864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.02.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Criminal Appeal Defective No. 185 of 2021

Sageer Khan ...Appellant(In Jail)
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Appellant:
Sheikh Mohammad Ali

Counsel for the Opposite Party:
G.A.

A. Criminal
matter-Code
of
Criminal
Procedure,1973-Section
372maintainability of appeal- application
filed
on
behalf
of
the
victim
for
impleadment as an appellant-but it is
supported by an affidavit of her father
i.e. the existing appellant on whose
behalf the appeal is not maintainable-
The application is not supported by the
affidavit of victim nor any reason has
been given in this regard-guardian of
victim has filed appeal while victim still
survives, which is not in tune of Full
Bench decision of this Court reported
Manoj Kumar Singh v. State of U.P. and
others-It is not the case of appellant
where
the
victim,
his
daughter,
is
disabled- She is surviving and is married,
therefore the appeal, if at all, could only
be filed by her in her own name, whereas
it has been filed by her father in his
name- The guardian or legal heir would
come into picture only if the victim is a
minor or is absent or is unable to file an
appeal on account of some disability-The
legal heir would come into picture when
the victim does not survive. (Para 2 to
11)