Raj Kumar Sharma vs State Of U.P. And 4 Others
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Allahabad High Court

Raj Kumar Sharma vs State Of U.P. And 4 Others on 30 May, 2024

Author: Rahul Chaturvedi

Bench: Rahul Chaturvedi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:99376-DB
 
Court No. - 67
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 260 of 2024
 

 
Appellant :- Raj Kumar Sharma
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Ronak Chaturvedi
 
Counsel for Respondent :- G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 2892 of 2024
 

 
Appellant :- Raj Kumar Sharma
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Devesh Kumar Shukla,Dharmesh Kumar Shukla
 
Counsel for Respondent :- Birendra Kaushik,G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 2966 of 2024
 

 
Appellant :- Shiv Kumar And 2 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Birendra Kaushik
 
Counsel for Respondent :- Devesh Kumar Shukla,Dharmesh Kumar Shukla,G.A.
 

 
Hon'ble Rahul Chaturvedi,J.
 

Hon'ble Ms. Nand Prabha Shukla,J.

Heard Sri Ronak Chaturvedi, learned counsel for the appellant and Sri Ghanshyam Kumar, learned A.G.A. as well as perused the records.

The Criminal Appeal No.260 of 2024 is being filed under section 372 Cr.P.C. on behalf of Raj Kumar Sharma against proposed accused/respondents namely Shiv Ratan@Tinku, Shiv Kumar, Anil Kumar and Sunil Kumar whereby learned Trial Judge vide judgment and order dated 28.02.2024 have decided three Sessions Trial having (i) Sessions Trial No.349 of 2013 arising out of Case Crime No.612 of 2012, (ii) Sessions Trial No.533 of 2013 arising out of case crime no.612 of 2012 and (iii) Sessions Trial No.986 of 2013 arising out of case crime no.612A of 2012, Police Station-Khair, District-Aligarh, whereby learned Trial Judge after clubbing all the three sessions trial, two Sessions Trials on behalf of two sets of accused-respondents and last Sessions Trial of cross-case, have completely acquitted Shiv Ratan from the charges under section 302 and 506 IPC but convicted remaining co-accused/respondents namely Shiv Kumar, Anil Kumar and Sunil Kumar but instead of awarding sentence under section 302 IPC, learned trial Judge has recorded the conviction of remaining co-accused/respondents under section 304-II IPC awarding three years rigorous imprisonment and a fine of Rs.one lac each and under Section 506 IPC for three years rigorous imprisonment and a fine of Rs.10,000/-.

On the other hand, by the common judgment, learned Trial Judge, in S.T. No.986 of 2013 arising out of case crime no.612A of 2012, Police station-Khair, District-Aligar has convicted Raj Kumar Sharma, the appellant of the present case for the offence under section 323 IPC for one year imprisonment and a fine of Rs.1,000/-, under section 504 IPC for two years imprisonment and a fine of Rs.25,000/- and under section 506 IPC for three years imprisonment and a fine of Rs.50,000/-.

Learned counsel for the appellant informs the Court that Shiv Kumar and others have also preferred an appeal under section 374(2) Cr.P.C. assailing the legality and validity of the judgment and order dated 28.02.2024 in which, co-ordinate Bench of this Court vide order dated 16.05.2024 has extended the interim bail granted to the appellants Shiv Kumar and others, which were enjoying after the conviction.

Similarly, in yet another criminal appeal filed under section 374(2) Cr.P.C., the appellant-Raj Kumar Sharma is assailing the legality and validity of the judgment and order dated 28.02.2024 and Bench of this Court vide order dated 28.03.2024, admitted the appeal and granted bail in favour of Raj Kumar Sharma.

In the instant criminal appeal has been filed with a specific prayer which is quoted hereinbelow :-

"To admit and allow the present appeal and to partly set-aside the impugned judgment and order dated 28.02.2024 passed by the Additional Sessions Judge, Court No.8, Aligarh in Sessions Trial No.349 of 2013 (State of U.P. Vs. Shivratan and another), Sessions Trial No.533 of 2013 (State of U.P. Vs. Anil Kumar and another) arising out of case crime no.612 of 2012, under sections 302, 325, 323, 504, 506 IPC, police station-Khair, District-Aligarh and Sessions Trial No.986 of 2013 (State of U.P. VS. Raj Kumar Sharm), arising out of case crime no.612A of 2012, under section 323, 504, 506 IPC, police station-Khair, District-Aligarh whereby opposite party no.3 to 5 have been convicted for a lesser offence under section 304 part-II IPC instead of Section 302 IPC and it is further prayed that this Hon'ble Court may graciously be pleased to convict the opposite party nos.2 to 5 under section 302 IPC.

It is further prayed that this Hon'ble Court may graciously be pleased to call for the records of S.T. No.349 of 2013, S.T. No.533 of 2013, arising out of case crime no.612 of 2012 under sections 302, 325, 323, 504, 506 IPC, police station-Khair, District-Aligarh and S.T. No.986 of 2013 arising out of case crime no.612A of 2012, under sections 323, 504, 506 IPC, police station-Khair, District-Aligarh whereby opposite party no.3 to 5 have been convicted for a lesser offence under section 304 part-II IPC instead of Section 302 IPC and it is further prayed that this Hon'ble Court may graciously be pleased to convict the opposite party nos.2 to 5 under section 302 IPC"

Contention raised by learned counsel for the appellant is in two folds (i) that there are some sufficient material on record to convict the accused/respondents for the offence under section 302 IPC but learned trial Judge has erroneously convicted the appellant for the offence under section 304-II IPC and sentence in lesser offence. It is further contended that the findings recorded by the learned trial Court is tangent to the material on record and he has not appreciated and evaluated those materials in its corrective perspective which has landed into erroneous finding and accordingly, sentenced him in lesser offence i.e. for the offence under Section 304 part-II IPC.

Second argument as advanced by learned counsel for the appellant is that two cross-cases were clubbed together and learned trial Judge have decided all the sessions trials by a common judgment. It is further contended that the at many occasions, testimonies of witnesses were overlapped with each other leading to utter confusion in the matter and has landed into grave injustice. In this regard, learned counsel for the appellant has relied upon the judgment of Hon'ble the Apex Court in the case of Nathi Lal and others Vs. State of U.P. and another reported in 1990(Supp) Supreme Court Cases 145, paragraph no.2 and 3 of which is quoted hereinbelow :-

"2.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. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in that 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.

3. 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 respondent-complainant by way of 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."

Later on, similar proposition of the law has been followed in yet another judgment of Hon'ble Apex Court in the case of Sudhir and others Vs. State of M.P. reported in (2001) 2 Supreme Court Cases 688, paragraph no.11 of which is quoted hereinbelow :-

"In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This court has given its approval to the said practice in Nathi Lal & ors. vs. State of U.P. & anr. [1990 (Supp) SCC 145]. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here:

"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 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. 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."

We have respectfully perused the aforesaid observations made by Hon'ble the Apex Court and toeing the same lines, the judgment and order dated 28.02.2024 is hereby quashed.

The matter is hereby remanded back before the concerned court along with original records of the case which are available to the Court to return back within next 15 days with the direction to the learned trial Judge to segregate and separate both the case and its cross case and pass fresh order within a period of next three months appreciating the evidences on record and then pronounce the judgment separately within the aforesaid period.

Learned counsel for the appellant further submits, that no adjournment would be sought by the appellants and they would render their fullest cooperation in early conclusion of trial. It is also given to understand that the appellants are on bail and they need not to surrender and they would cooperate with the respective trials. The interim bail is extended till the conclusion of trial.

With the aforesaid observations, all the appeal stand disposed of.

Order Date :- 30.5.2024

Sumit S