Allahabad High Court
Raj Kumar Sharma vs State Of U.P. And 4 Others on 30 October, 2025
Bench: Siddharth, Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 24.09.2025
Delivered on 30.10.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL U/S 372 CR.P.C. No. - 260 of 2024
Raj Kumar Sharma
..Appellant(s)
Versus
State of U.P. and 4 others
..Respondent(s)
Counsel for Appellant(s)
:
Ronak Chaturvedi
Counsel for Respondent(s)
:
Amit Kumar Srivastava, G.A.
Heard Sri Ronak Chaturvedi, learned counsel for the appellant; Sri Amit Kumar Srivastava, learned counsel for the informant; learned AGA for the State and perused the material on record.
With
CRIMINAL APPEAL No. - 2892 of 2024
Raj Kumar Sharma
..Appellant(s)
Versus
State of U.P.
..Respondent(s)
Counsel for Appellant(s)
:
Devesh Kumar Shukla, Dharmesh Kumar Shukla
Counsel for Respondent(s)
:
Birendra Kaushik, G.A.
Heard learned counsel for the appellant and learned AGA for the State and perused the material on record.
With
CRIMINAL APPEAL No. - 2966 of 2024
Shiv Kumar and 2 others
..Appellant(s)
Versus
State of U.P.
..Respondent(s)
Counsel for Appellant(s)
:
Birendra Kaushik
Counsel for Respondent(s)
:
Devesh Kumar Shukla, Dharmesh Kumar Shukla, G.A.
Heard learned counsel for the appellant and learned AGA for the State and perused the material on record.
With
GOVERNMENT APPEAL No. - 104 of 2025
State of U.P.
..Appellant(s)
Versus
..Respondent(s)
Counsel for Appellant(s)
:
Ashutosh Kumar Sand
Counsel for Respondent(s)
:
Amit Kumar Srivastava
Heard learned counsel for the appellant-State; Sri Amit Kumar Srivastava, learned counsel for opposite party nos. 1 to 3; learned AGA for the State and perused the material on record.
With
GOVERNMENT APPEAL No. -1247 of 2024
State of U.P.
..Appellant(s)
Versus
..Respondent(s)
Counsel for Appellant(s)
:
Ashutosh Kumar Sand
Counsel for Respondent(s)
:
Abhishek Kumar Shukla, Amit Kumar Srivastava
Heard learned counsel for the appellant-State; Sri Amit Kumar Srivastava, learned counsel for opposite party nos. 1 to 4; learned AGA for the State and perused the material on record.
In Chamber
HON'BLE SIDDHARTH, J.
HON'BLE SANTOSH RAI, J.
1. Since all the appeal arise of common judgment and order, hence the CRIMINAL APPEAL U/S 372 CR.P.C. No. - 260 of 2024 is being made the leading case.
2. The above noted appeals are directed against the common judgment and order dated 28.02.2024 passed by the Additional Sessions Judge, Court No. 8, Aligarh in Sessions Trial No. 349/2013 (State of U.P. versus 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. 986/2013 (State of U.P. versus Raj Kumar Sharma) arising out of Case Crime No.612A of 2012, under Sections 323, 504, 506 IPC, Police Station Khair, District Aligarh, whereby the opposite party no. 2 to 5 have been acquitted of the charge under Section 302 IPC in S.T. No.349 of 2013 (State of U.P. vs. Shiv Ratan and another) and S.T. No.533 of 2013 (State of U.P. vs. Anil Kumar and another) both arising out of Case Crime No.612 of 2012 Police Station Khair, District Aligarh. Further opposite party No 2 has also been acquitted under 506 IPC whereby the opposite party no 3 to 5 have been convicted for a lesser offence under Section 304 Part II I.P.C. instead of Section 302 I.P.C and it is further prayed that this Hon'ble Court may graciously be pleased to convict the opposite party no 2 to 5 under section 302 I.P.C.
3. Learned counsel for the appellants has referred to the trial courts judgment dated 28.2.2024 and has pointed out to paragraph Nos. 1 to 9, which are as follows:-
i. This judgment shall dispose of S.T. No. 349/2013 State vs Shivratan & Others, S.T. No. 533/2013 State vs. Anil Kumar & Others (both S.T.'s arising out of FIR No. 357/2012 dated 21.12.2012, CC No. 612/2012 u/s 308, 506 I.P.C.) and S.T. No. 986/2013 State vs Raj Kumar Sharma & Others (arising out of cross FIR No. 37/2013 dated 25.01.2013, C.C. No. 612A/2012 u/s 307, 323, 504, 506 IPC), for all the three cases arising out of the same incident which had occurred between 6.30 AM to 7.00 AM on 21.12.2012 in Village Kheriya Jhallu, P.S. Khair, District Aligarh between the rival parties resulting into one death and two injured from both sides collectively. S.T. No. 986/2013 is cross case for S.T. No. 349/2013 and S.T. No. 533/2013.
Facts of the S.T. No. 349/2013 State vs. Shiv Ratan and ors. and ST No. 533/2013 State vs. Anil Kumar and ors. (Both S.T.'s arising out of FIR No. 357/2012 dated 21.12.2012, CC No. 612/2012 u/s 308, 506 I.P.C):
ii. In S.T No. 349/2013 State vs. Tinku & others and S.T. No. 533/2013 State vs Anil Kumar & others (both the cases arising out of C.C. No. 612/2012 under Section 308, 506 I.P.C. P.S. Khair, District Aligarh), as per the complaint dated 21.12.2012, on the said day at about 07:00AM in the morning when the complainant Raj Kumar Sharma s/o Mahaveer Prasad r/o Village Kheriya Jhallu, P.S. Khair, District Aligarh had gone to his tube well to relieve himself, he saw the accused Tinku, Shivratan both sons of Lalaram and Anil Kumar and Sunil Kumar, both sons of Ramjilal and the residents of the same village, assaulting his father Mahaveer Prasad (the deceased) with wooden sticks, Iron rod, fists etc. He immediately raised cries, upon which the other village men namely Radhe shyam Sharma, Hoti lal, Ajay Kumar and others rushed to the place and eye-witnessed the brazen assault on his father by the above named accused persons. With the help of these village men, he somehow managed to save his father from the clutches of the accused persons who fled from there and threatened to kill the complainant and his injured father. The complainant took his critically injured father to the P.H.C. Khair and from there he was referred to Aligarh in an unconscious state.
Iii. On the basis of written complaint of the complainant Raj Kumar Sharma s/o Mahavir Prasad, F.I.R. No. 357/2012 (C.C. No. 612/2012) dated 21.12.2012 under Section 308, 506 I.P.C. was registered against the accused persons namely Tinku, Shivratan, Anil Kumar and Sunil Kumar. The injured Mahaveer Prasad died on 26.12.2012 during his treatment in Aligarh and thereafter Section 302 of I.P.C. was added to the investigation. On completion of investigation, the I.O. submitted charge-sheet no. 67/2013 dated 05.03.2013 against the accused Shivratan alias Tinku and Shiv Kumar, both sons of Lalaram. The I.O. kept investigation against the other accused Anil Kumar and Sunil Kumar continued and on completion of investigation filed supplementary charge-sheet No. 67A/2013 dated 02.05.2013 under Section 302, 323, 325, 504 and 506 I.P.C Against these two accused.
(iv) The learned Court below took cognizance of the matter in charge-sheet no. 67/2013 dated 05.03.2013 under Section 302, 323, 325, 504 and 506 I.P.C. vide its Order dated 19.03.2013 against the accused Siv Ratan and Shiv Kumar, and after complying with the proceedings under Section 207 Cr.P.C. committed the case for trial to the Sessions Court vide its Order dated 04.04.2013. Similarly the learned Court below took cognizance of the matter in the supplementary charge-sheet no. 67A/2013 dated 03.05.2013 under Section 302, 323, 325, 504 and 506 I.P.C against the accused Anil Kumar and Sunil Kumar vide its Order dated 05.06.2013. After compliance of the mandatory proceedings under Section 207 Cr.P.C., the learned Court committed the case to the Sessions Court vide its Order dated 02.07.2013.
(v) After hearing the accused persons on discharge, the Ld. Trial Court found prima-facie case made out against them as per charge-sheet in S.T. No. 349/2013 and S.T. No. 533/2013 (both arising out of C.C. No. 612/2012) and framed charges under Section 302 and 506 I.P.C after dropping charges under Section 323, 325 and 504 IPC on technical grounds, against the accused Tinku alias Shivratan, Shiv kumar, Anil Kumar and Sunil Kumar vide its Order dated 08.11.2013. The charges were read over to the accused persons who denied the same and claimed to be tried.
Facts in ST No. 986/2013 State vs. Raj Kumar Sharma & Others (arising out of Cross FIR No. 37/2013 dated 25.01.2013, C.C. No. 612A/2012 u/s 307, 323, 504, 506 IPC):
(vi) In the meanwhile, after having failed to get cross F.I.R. registered against the accused Raj Kumar Sharma (the complainant in S.T. No. 349/2013 and S.T. No. 533/2013) and others, the complainant Kuldeep Sharma s/o Lalaram Sharma r/o Khediya Jhallu, P.S. Khair, District Aligarh presented application under Section 156(3) Cr.P.C. before the learned ACJM Court no. 01, Aligarh against the accused Raj Kumar Sharma, Bhura, Ajay and Vikash for registration of F.I.R against them for having assaulted his disabled brother Shiv Kumar Sharma on 21.12.2012 at about 06:30 AM in the morning on his tube well which is adjacent to the tube well of the accused persons. The learned ACJM concerned, after taking into consideration the submissions of the complainant and the report from the local police station, directed for registration of F.I.R. against the above named accused persons to the local police concerned. In compliance thereof F.I.R. no. 37/2013 (C.C. No. 612A/2012) dated 25.01.2013 under Section 307, 323, 504 and 506 L.P.C. was registered against the accused Raj Kumar Sharma, Bhura, Ajay and Vikash. On completion of investigation, the I.O. filed charge-sheet no. 21/2013 dated 20.03.2013 under Section 323, 504 and 506 I.P.C. against the sole accused Raj Kumar Sharma. He filed closer report against the other named accused Bhura, Ajay and Vikash on the ground of lack of evidence after taking into consideration their alibi at the relevant point of time. The I.O. also dropped the charges under Section 307 I.P.C. against the accused for want of evidence.
(vii) The learned Court below took cognizance of the matter vide its Order dated 21.06.2013 and after complying with the proceedings under Section 207 Cr.P.C., committed the case for trial by the Sessions Court vide its Order dated 12.11.2013 on the ground of it being a cross-case against S.T. No. 349/2013 and S.T. No. 533/2013 (arising out of C.C. No. 612/2012 u/s 308, 506 IPC) which were already committed to the Sessions Court.
(viii) In this cross-case S.T. No. 986/2013 (C.C. No. 612A/2012), after hearing the accused Raj Kumar Sharma on discharge, the Ld. Trial Court found prima-facie case made out against him under Section 323, 504 and 506 I.P.C. and framed charges against the accused vide its Order dated 20.02.2014. Subsequently, the ld. Trial Court framed charge under Section 307 IPC as well against the accused Raj Kumar Sharma vide its order dated 08.04.2022. The accused denied the charges against him and claimed to be tried.
(ix) Since S.T. No. 986/2013 (C.C. 612A/2012) State Vs. Raj Kumar Sharma under Section 307, 323, 504 and 506 I.P.C. and S.T. No. 349/2013 State Vs. Shivratan alias Tinku and others and S.T. No. 533/2013 State Vs. Anil Kumar and others (both S.T.s arising out of C.C. No. 612/2012 under Section 302, 506 I.P.C.), are cross-cases, therefore, the Ld. Trial Court directed for combined trial of all the three cases. The S.T. No. 349/2013 and S.T. No. 533/2013 arose out of the same C.C. No. 612/2012, therefore, joint trial was ordered for these two cases and S.T. No. 349/2013 was made the leading case among the two.
4. Learned counsel for the appellants has submitted that it is clear from the above paragraphs in the impugned judgment and order of the trial court that trial court has passed a common judgment with respect three sessions trials, which is not in accordance with law. He has further submitted that it is settled position of law that though the cross cases are to be tried by the same learned Judge, however the same learned Judge must try both cross cases one after the other. After recording the evidence in one case and hearing the arguments of the parties, court must reserve the judgment. Thereafter the court should proceed to hear the cross case and after recording all the evidence and hearing the arguments of the parties must reserve the judgment in that case also. Thereafter the same learned Judge is expected to decide both the cross cases 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 cross case cannot be looked into, nor learned Judge should 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 each particular case and both the judgments must be pronounced by the learned Judge one after the other. He has submitted that in the present case, learned Judge has passed a common judgment in respect of two cross cases, which was not in accordance with law.
5. In all five appeals, learned counsel for the parties have been heard at length. They have not disputed the legal error committed by the trial court in deciding two cross cases together by intermingling their evidence.
6. The Apex Court in the case of Nathi Lal and others Vs. State of U.P. and Another, 1990 (Supp) Supreme Court Cases 145 has laid down the procedure for deciding the cross cases by the trial court in paragraph no.2, which is as follows:-
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 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 Page 1 of 2 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.
7. The Apex Court in the case of A.T. Mydeen and others Vs. The Assistant Commissioner, Customs Department and others, (2022) 14 SCC 392, had explained the legal position in paragraph nos. 25, 39 to 44, which are relevant and are being quoted below:-
25. So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously. However, we are not concerned with cross-cases but are concerned with an eventuality of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding.
39. The provisions of law and the essence of case-laws, as discussed above, give a clear impression that in the matter of a criminal trial against any Accused, the distinctiveness of evidence is paramount in light of Accused's right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of Accused or his pleader and secondly, the right of Accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any Accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.
40. The essence of the above synthesis is that evidence recorded in a criminal trial against any Accused is confined to the culpability of that Accused only and it does not have any bearing upon a co-Accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.
41. It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the Accused. Hence, the scope of the appellate court's power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless Section 367 or Section 391 of Code of Criminal Procedure comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal.
42. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgment, based on evidence recorded in only one trial, against two sets of Accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the Accused persons.
43. There is one more angle to be considered i.e. whether to remand one case to the High Court for fresh decision i.e. the case in which the evidence was not considered and we may proceed to decide the other case here. We find, if we adopt such a procedure, then no fruitful purpose would be served and in fact, it would be an exercise resulting in complications and contradictions and even conflicts. If we proceed to hear one appeal wherein the evidence has been considered by the High Court and we agree with the same, then it would influence the High Court in deciding the other matter on remand. Further, even if we could hold back this appeal and await decision of the High Court in the matter which we remand, then also the High Court would not be able to take an independent decision and would be influenced by the judgment as we would be entertaining one appeal. Moreover, if we allow one of the appeals which we are holding back, then, nothing may remain for the High Court to decide.
44. There is another reason why we are inclined to send back both the matters to the High Court which is fundamental. We find that the learned single Judge of the High Court has apparently not adopted the correct procedure prescribed under law and therefore, the judgment of the High Court needs to be set aside. Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal. There cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the Accused are as important as the rights of a victim. Therefore, it would be in the fitness of things and in the interest of the parties that the matters are remanded to the High Court for a fresh decision in accordance with law and in light of the discussion and observations made above
8. Similar ratio is in the judgment of Apex Court in the Case of Sudhir and others Vs. State of M.P., (2001)2 SCC 688 wherein judgment of the Apex Court in the case of Nathi Lal and others (supra) has been relied upon.
9. In view of the above consideration of relevant law settled by the Apex Court, we are of the view that the trial court has committed patent legal error in deciding two cross cases together. Hence the judgment and order of the trial court is set aside. The matter is remanded for hearing both the cross cases and another case by the trial court as per procedure laid down by the Apex Court considered hereinabove.
10. All the above noted appeals are allowed.
11. After the remand the trial court will make all the efforts to decide the cross cases within three months from the date of receipt of copy of this order from the Registrar (Compliance) of this Court or filing of the same before it by either of the parties, whichever is earlier.
12. Office is directed to return the trial court record of these appeals, within 10 days from the date of this order and Registrar (Compliance) will also communicate this order to the trial court, within the same period.
(Santosh Rai,J.) (Siddharth,J.)
October 30, 2025
Ruchi Agrahari
