Allahabad High Court
Sheo Ram And Others vs State on 20 November, 2025
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:207684-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1528 of 1988
Sheo Ram And Others
.....Appellant(s)
Versus
State
.....Respondent(s)
Counsel for Appellant(s)
:
Alok Ranjan Tripathi, Shiv Nath Singh
Counsel for Respondent(s)
:
Rajesh Dwivedi, Shiv Shankar Kaithal
And
CRIMINAL APPEAL No. - 1420 of 1988
Sheo Ram And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Alok Ranjan Tripathi, Chandra Dutt
Counsel for Respondent(s)
:
A.G.A., A.K. Srivastava, Sanjay K.Srivastava
Court No. - 43
HON'BLE SALIL KUMAR RAI, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
Heard Sri Shiv Nath Singh, Senior Advocate assisted by Sri Alok Ranjan Tripathi, Sri Kavindra Yadav and Sri Prakash Narayan, the cousnel for the appellants and Sri L.D. Rajbhar, the AGA for the prosecution.
Two Criminal Appeals, Criminal Appeal No. 1528 and 1988 and Criminal Appeal No. 1420 of 1988 were filed by the same appellants against the same order of conviction passed by the trial court. Both the appeals were admitted and bail was granted by this Court. Criminal Appeal No. 1420 of 1988 was admitted and bail was granted by order dated 20.6.1988 and Criminal Appeal No. 1528 of 1988 was admitted and bail was granted by order dated 24.6.1988. The appeals were connected. Criminal Appeal No. 1528 of 1988, being the subsequent appeal, was not maintainable and is liable to be dismissed as not maintainable. We have heard Criminal Appeal No. 1420 of 1988 on merits.
The appeal has been filed against the judgment and order dated 28.5.1988 passed by the VI Additional Sessions Judge, Kanpur Dehat convicting the appellant no. 1 under Section 302 IPC and appellant nos. 2 and 3 under Section 302 read with Section 34 IPC in Sessions Trial No. 179 and 1987 arising out of Case Crime No. 113 initially registered under Section 307 / 323 IPC, Thana Bhognipur, District Kanpur Dehat.
In light of the office report dated 9.11.2021, the appeal is declared to have abated so far as it concerns appellant no. 1 - Sheo Ram and survives for adjudication only so far as it concerns appellant nos. 2 and 3.
The case of the prosecution is that at 09:00 p.m. on 24.5.1987 the appellant no. 2 - Tara Chand, invited Chhuttan (the deceased), Gaya Prasad (the first informant) and Chhote son of Babu Lal to sleep in his muskmelon field. When the aforesaid three persons reached the muskmelon field, they found that Sheo Ram, i.e., the appellant no. 1, Harish Chandra and Puttan, sons of appellant no. 1 were also there. On seeing Chhuttan and others, Puttan, i.e., appellant no. 3 exhorted the other appellants to beat Chhote and others as they had stolen the slippers of the appellants. Sheo Ram, the appellant no. 1, fired at the deceased from his D.B.B.L. gun. The first informant and Chhote were also assaulted by the other two appellants and Harish Chandra by sticks and lathis. On calling of the first informant and Chhote, some villagers came at the place of incident and the accused ran away. Chhuttan who was hit by the bullet fired from the D.B.B.L. gun of the appellant no. 1 was lying in the field. The first information report was registered on the next date on 25.5.1987 at 09:55 a.m. The first information report was initially registered as Case Crime No. 113 under Section 307 / 323 IPC. The three appellants in the present appeals along with Harish Chandra were shown as accused in the aforesaid first information report.
It transpires from the judgment of the trial court that the deceased was examined at U.H.M. Hospital, Kanpur where he was admitted for treatment. The injury report of the deceased was prepared by one Dr. C. Prakash. The injury report showed following injuries on the body of the deceased : -
"1. An abrasion 1/2 c.m x 3 c.m on medial end of lt. clavicle red & dry.
2. An abrasion 2 c.m x 2 c.m Rt side of chest 7 c.m below Rt. nipple.
3. An abrasion 5 cm x 5 cm on Lt. side of chest 6 cm below the Lt. nipple. Advised X'ray.
4. Multiple abrasions on Lt. and Rt. side of abdomen Advised X'ray in area of 17 cm x 20 c.m.
5. An entry wound on the lower abdomen. in middle line 7 cm below umblicus 3 cm x 4 cm. Intestine is coming out, red incolour.
6. An abrasion 5 cm x 4 cm on medial side of Rt. elbow. Advised X'ray.
7. An abrasion on all fingers of Lt. hand at distal phylgnx on palmer surface. Advised X'ray.
8. Three abrasions 5 cm x 3 cm x 4 cm x 4 c.m, 3 cm x 3 cm on betrel side of Rt. limp joint."
It also transpires from the judgment of the trial court that, in his report, the doctor had opined that the injuries were caused by fire arm and their duration was half day. The Magistrate was also informed for recording the dying declaration. Subsequently, Chhuttan died. However, the judgment of the trial court does not refer to any dying declaration and the records transmitted to this Court also do not contain the dying declaration of the deceased. Apparently, the dying declaration of the deceased was not recorded by the Magistrate.
On 26.5.1987, the Investigating Officer recovered the blood stain and plain earth of the spot.
Chhuttan died on 27.5.1987 at 07:25 p.m. The inquest report was prepared and the autopsy was conducted on 28.5.1987. The autopsy report shows the following ante-mortem injuries : -
"1. Surgical wound 15 c.m long and 13 stitches present. Right straight at the level of umblicus below.
2. Drainage wound 2 c.m long and one stitch 3 rubber tube 10 c.m from umblicus at 80'clock.
4. Gun shot wounds. All entry wounds
(i) Lacerated wound 1/2 c.m x 1/2 cm x skind deep 13 c.m from left nipple at 17.30 O'clock position.
(ii) Lacerated wound 1/2 c.m x 1/2 c.m x muscle deep 6 c.m from let nipple at 7.30 O'clock position.
(iii) Lacerated wound 1/2 c.m. x 1/2 c.m x cavity deep 6 c.m from left nipple at 5 O'clock position.
(iv) Lacerated wound 1/2 c.m x 1/2 c.m x cavity deep 8 c.m from umblicus at 2 O'clock position.
(v) Lacerated wound 1/2 c.m x 1/2 c.m x skin deep 7 1/2 c.m from imblicus at 3.30 O'clock position.
(vi) Lacerated wound 1/2 c.m x 1/2 c.m x cavity deep 4 c.m from umblicus at 5 O'clock position.
(vii) Lacerated wound 1/2 c.m x X 1/2 c.m x muscle deep at 7 O'clock, 4 c.m from umblicus.
(viii) Lacerated wound 1/2 c.m x 1/2 c.m x cavity deep 8 c.m from umblicus at 9 O'clock position.
(ix) Lacerated wound 1/2 c.m x 1/2 c.m x skin deep 10 c.m from imblicus at 10 O'clock."
Charge-sheet was filed and the case was committed for trial to the Sessions Court and Sessions Trial No. 179 and 1987 was registered against the appellants. The Sessions Court charged the appellant no. 1 under Section 302 IPC for murder of Chhuttan and under Section 323 read with Section 34 IPC for injuring Gaya Prasad and Chhote. The appellant nos. 2 and 3 were charged under Section 302 read with Section 34 IPC for the death of Chuttan and under Section 323 IPC for injuring Chhote and the first informant - Gaya Prasad.
The prosecution examined Gaya Prasad as P.W.-1, Chhote as P.W.-2, Dr. Santosh Kumar who proved the post-mortem report as P.W.-3, Ramesh Kumar who proved the inquest as P.W.-4 and Ramesh Chandra, the Investigating Officer as P.W.-5.
In his testimony, P.W.-1 reiterated the FIR version of the incident. In his cross-examination, P.W.-1 also stated that he and his brother Chhote were tied by the appellants to a bed lying in the field and because of the assault by the appellants, they suffered injuries on their legs and also on their back. In his testimony, the witness also stated that, on the date of incident, the crops of muskmelon and lady finger existed on the field. In his evidence, P.W.-2 also supported the FIR version. In his evidence, P.W.-2 further stated that the deceased was fired at the abdomen and also on the chest and fell down on being hit by the bullet. In his cross-examination, the witness has stated that he could not identify the persons who had fired at the deceased and also stated that the witness was never assaulted with sticks and lathies. The witness has also stated that it was dark night on the date of incident, therefore, the assailants could not be properly seen and the witness had come to testify because the police had summoned him for testimony. P.W.-3 has proved the post-mortem report and has stated that the death could have been due to injuries noted in the post-mortem report. At this stage, it is to be noted that the testimony of P.W.-5 contradicts the testimony of P.W.-1 regarding the crops at the place of incident. In his cross-examination, P.W.-5 has stated that on the date of incident, no crops existed in the field of the appellants. The aforesaid testimony contradicts the testimony of P.W.-1 so far as the position of the spot is concerned.
The trial court after considering the testimony of P.W.-1 and P.W.-2 whom the prosecution claims to be eye-witness of the incident convicted the appellant no. 1 under Section 302 IPC and the appellant nos. 2 and 3 under Section 302 read with Section 34 IPC. The appellants have been acquitted of the charges under Section 323 read with Section 34 IPC on the ground that no injuries on the body of first informant Gaya Prasad and Chhote had been proved. The trial court has ignored the statement of P.W.-2 in his cross-examination that it was a dark night on the date of incident, therefore, assailants could not be properly identified and the witness could not identify the persons who had fired at Chhuttan.
So far as appellant no. 1 is concerned, the appeal has already been declared to have abated. In the circumstances, we do not enter into the question relating to the legality of the findings so far as it relates to guilt of appellant no. 1 and also the sentence imposed on appellant no. 1. We are only considering the legality of the findings recorded against and the sentence imposed on appellant nos. 2 and 3.
A perusal of the judgment of the trial court shows that the deceased was also examined before his death and an injury report was prepared. The injuries have been noted above. The doctor who prepared the injury report opined that the injuries had been caused by fire arms. The report may be indicating injuries caused due to assault with sticks and lathies. However, the injury report has not been proved by the doctor. The doctor was not examined by the prosecution. In light of the aforesaid, there is no evidence to show use of lathi or sticks in the incident or that the deceased was assaulted by the appellant nos. 2 and 3 who are said to have been armed with lathis and sticks. The post-mortem report notes that all ante-mortem injuries were gun-shot wounds. In absence of any injury report, it would not be safe to convict the appellant nos. 2 and 3 under Section 302 read with Section 34 IPC only on the oral testimony of P.W.-1 and P.W.-2. No common intention to kill the deceased can be imputed to the appellants under Section 34 IPC without the prosecution, proving beyond doubt, use of lathi and sticks by appellant nos. 2 and 3. Mere exhortation to hit or beat the persons called at the field would not be sufficient to convict the appellants under Section 302 with the aid of Section 34 IPC. The prosecution has not been able to prove, beyond doubt, the participation of appellant nos. 2 and 3 and use of lathis and sticks in the incident as claimed by the prosecution. The trial court has already acquitted the accused under Section 323 read with Section 34 IPC.
For all the aforesaid reasons, the judgment and order dated 28.5.1988 passed by the VI Additional Sessions Judge, Kanpur Dehat in Sessions Trial No. 179 and 1987 arising out of Case Crime No. 113 under Sections 302 and 34 IPC, Thana Bhognipur, District Kanpur Dehat so far as it convicts appellant nos. 2 and 3 is set-aside. Consequently, the conviction of appellant nos. 2 and 3, namely, Tara Chand and Puttan sands set-aside. The appellant nos. 2 and 3 stand acquitted.
Criminal Appeal No. 1420 of 1988 is allowed. Criminal Appeal No. 1528 of 1988 is dismissed as not maintainable.
The appellants are on bail. Their bonds stands cancelled. Sureties are discharged.
The judgment of this Court shall be sent to the trial court. The records of the case shall also be transmitted back to the trial court.
(Vinai Kumar Dwivedi,J.) (Salil Kumar Rai,J.)
November 20, 2025
Satyam
