Kaushal @ Alok Chauhan vs State Of U.P.
2025 Latest Caselaw 10632 ALL

Allahabad High Court

Kaushal @ Alok Chauhan vs State Of U.P. on 16 September, 2025

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Judgment reserved on 05.08.2025
 
Judgment delivered on 16.09.2025
 

 

 

 

 

 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
Criminal Appeal No. - 3211 of 2012
 

 
Kaushal @ Alok Chauhan
 

 
..Appellant(s)
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P.
 

 
..Respondent(s)
 

 

 
Counsel for Appellant(s)
 
:
 
Sudeep Kumar Pathak
 
Counsel for Respondent(s)
 
:
 
Govt. Advocate
 

 

 
Court No. - 47
 

 

 
HON'BLE SIDDHARTH, J.

HON'BLE AVNISH SAXENA, J.

( Per Justice Avnish Saxena )

1. The present appeal is preferred against the judgment of conviction and sentence dated 09.07.2012 passed by the court of Additional Sessions Judge, Court No.2, Etawah in Sessions Trial No.59 of 2006 (State Vs. Kushal alias Alok Chauhan S/o Krishan Chandra Chauhan), in Case Crime No.383 of 1997, Police Station Kotwali, District Etawah, under Section 302 read with Section 34 of I.P.C.

2. The accused-appellant is punished with imprisonment for life and Rs.10,000/- fine, in default, two years additional imprisonment for committing the offence of murder committed in furtherance of common intention.

3. According to First Information Report (F.I.R.), two accused, namely, Deepak Dixit alias Deepu S/o Hari Om and Kaushal alias Alok Chauhan (appellant) have been named in the F.I.R. lodged by Sri Sunder Lal Gupta, father of deceased Kamlesh Kumar Gupta for offence under Section 307 I.P.C., when both the accused had fired at the deceased through their country made pistol on 13.07.1997 at 11:00 p.m., while the deceased, informant and other persons were gathered at the marriage ceremony of sister of Shailesh Kumar alias Popey Jain solemnized at Jain Dharmshala Lalpura, Etawah. The deceased was standing at the gate of Jain Dharmshala when the two accused, named above came and opened fire at Kamlesh Kumar Gupta, he was taken to hospital by his father and brother after visiting the police station, situated at a distance of half a kilometer from the place of incident. In the district hospital, Etawah, the accused was declared brought dead.

4. After investigation, the charge sheet has been submitted only against the present appellant, but not against the accused Deepak Dixit alias Deepu, who has been summoned by the trial court by order dated 24.03.2007 for offence under Section 302 I.P.C., invoking Section 319 Cr.P.C. This accused remained absconding and his file was separated.

5. The prosecution has produced two witnesses of fact, P.W.-1 Sunder Lal Gupta and P.W.-2 Shailesh Kumar Gupta, respectively, the father and brother of deceased.

6. The prosecution has produced five formal witnesses. P.W.-3 Constable Bhaiya Lal was the constable clerk (the scribe of Chik F.I.R. and G.D); P.W.-4 S.I. Subedaar Singh, the first Investigating Officer, who has also conducted inquest on the death body of deceased; P.W.-5 Inspector Karanvir Singh Sachan, the second Investigating Officer, who has carried out further investigation and submitted charge sheet; P.W.-6 Dr. P.C. Pandey, who has informed the police station concerned about the death of deceased; and P.W.-7 Jagdish Chandra Gupta, the Nursing Assistant of District Hospital, where Dr. S.C. Dubey (deceased) has conducted post mortem examination.

7. The statement of accused has been recorded under Section 313 Cr.P.C., wherein he has denied the allegation of murder on him; stated that he has been falsely implicated and the entire documentary evidences are false; showed ignorance as to why he has been implicated in the case as his name is not Kaushal, but Alok Chauhan.

8. Sri Sudeep Kumar Pathak, learned counsel for the appellant has submitted that there is no evidence on record of the trial to connect the appellant for offence of murder in furtherance of common intention. The appellant is known by the name of Alok Chauhan and never known by the name of Kaushal; the F.I.R. and the statement of witnesses recorded during investigation is silent about the role of named accused who caused detrimental fire; the evidence on the record shows enmity of deceased with co-accused Deepak Dixit, but no enmity is shown against the appellant; the main accused Deepak Dixit has not been charge sheeted; the witnesses of fact are related witnesses and shaky in their statements about knowing Kaushal prior to the lodging of F.I.R.; there is marked improvement in the statement of witnesses; the witnesses of fact initially stated that they later came to know that Kaushal is also known by the name of Alok Chauhan; the witnesses of fact are not the eye witnesses, but pretended to be the eye witnesses and therefore, they have continuously made improvements in their statements on the basis of tutoring; the medical evidence does not corroborate with the eye witness account; the Investigating Officer initially raised doubt on Popey Jain, who has certain trade related issues with the deceased; during investigation, some of the witnesses have also stated through affidavits that it was an accident during the celebratory firing at the marriage ceremony; the appellant is in custody for nearly 12 long years, having no criminal history. The above mentioned points have not been dealt with by the trial judge in right perspective, resultant into recording of conviction. It is further submitted that the witnesses of fact are interested witnesses and their statements have to be appreciated cautiously, but the trial Judge has not evaluated the statements of witnesses of fact cautiously. The learned counsel has relied on the cases of Goverdhan and another Vs. State of Chattisgarh1 and Shyam Behari Mishra and another Vs. State of U.P.2, decided by the Division Bench of this Court by judgment dated 24.03.2023 in Criminal Appeal No.1092 of 2005.

9. Per contra, Sri Sushil Kumar Pandey, learned A.G.A.-I has opposed the arguments made by the learned counsel for the appellant and submits that the murder of Kamlesh Kumar Gupta was occasioned in full public view, when the people were gathered at the marriage ceremony of sister of Sri Shailesh alias Popey Jain at the gate of Jain Dharmshala Lalpura, Etawah. The incident has been witnessed by many persons, but none came forward to depose before the Court, except the father and brother of deceased. The assailant, namely, Deepak Dixit alias Deepu and his friend Kaushal, who had their residences in the same vicinity were being identified by the persons including P.W.-1 and P.W.-2. The accused-appellant, who has been identified during dock examination was familiar in the locality. It is not necessary that the correct name is known to all, as the persons are generally known by their nick names. The appellant, in the same way also known by the name of Kaushal and when the name of accused was clear, his name is mentioned accordingly. Deceased Kamlesh was shot at the gate of Jain Dharmshala on 13.07.1997 at 11:00 p.m., which is reported on 14.07.1997 at 00:20 a.m. and died due to gunshot injury, is apparent from the post mortem examination report. The main accused, though dropped after investigation has been summoned by the trial court under Section 319 Cr.P.C. The trial Judge has rightly appreciated the evidence and recorded conviction, which is required to be affirmed in appeal.

10. We have considered the rival submissions made by the parties. Perused the judgment passed by the trial court vis-a-vis the evidence on record.

11. After venturing into the facts, evidence and arguments, we have considered the power of the appellate court provided under Section 386 Cr.P.C. in the case of Gowrishankara Swamigalu Vs. State of Karnataka and Another3, it has been held by the Supreme Court that the powers to be exercised by an Appellate Court are as wide as of the trial court. The Appellate Court can review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused, but where two views are possible on same evidence and the findings recorded by the trial court are not perverse, the appellate court should not interfere with the findings of the lower court.

12. Thus, the appellate court, firstly, to appreciate the evidence on record; and secondly, should interfere with the findings only when the view of appellate court is different from the trial court. Coupled with the observation that the finding recorded by the trial court is perverse.

13. It is also observed by the Supreme Court in the case of Jitendra Kumar Mishra alias Jittu Vs. State of M.P.4 that the appellate court should be slow in interfering with conviction recorded by the trial court, but where evidence on record indicates that the prosecution has failed to prove the guilt of accused beyond reasonable doubt and that is a plausible view, different from the one expressed by the trial court, can be taken. The appellate court then should not shy away in giving benefit of doubt to the accused.

14. Keeping in view the above principles of law in mind, we have evaluated the facts and evidences. The incident occurred on 13.07.1997 at 11:00 p.m., at the gate of Jain Dharmshala Lalpura, Etawah. The police station is reportedly situated half a kilometer away from place of incident. The informant Sri Sunder Lal Gupta (P.W.-1), father of deceased had taken the deceased first to the police station from where to the District Sadar Hospital Etawah. The first information report was lodged under Section 307 I.P.C. at Police Station Kotwali, Etawah on 13.07.1997 at 11:40 p.m., registered as Case Crime No.383 of 1997.

15. The written information is dictated by the informant to one, Ram Prakash Gupta. It is disclosed in the written information that the informant, Sunder Lal Gupta, his son Kamlesh Kumar Gupta (deceased), his another son Shailesh Kumar Gupta, Arvind Verma S/o Ram Pal Verma, Kuldeep Gupta S/o Jagdish Prashad had gathered in the marriage ceremony of sister of Shailesh alias Popey Jain at Jain Dharmshala Lalpura Etawah. While the marriage ceremony Jaimala was taking place, informants son was standing at the gate of Dharmshala, when two accused namely, Deepak Dixit S/o Hari Om Dixit resident of Lalpura and his friend Kaushal came to the place, having country made pistols in their hands and opened fire at Kamlesh Kumar Gupta. He skipped one fire but suffered injury in his abdomen by another fire. Both the accused have sprinted away. It is also disclosed in the F.I.R. that Deepak Dixit and his family were inimical with Kamlesh Kumar.

16. Dr. P.C. Pandey (P.W.-6) gave a report to the police on 14.07.1997, Exhibit Ka-11 that Kamlesh Kumar Gupta succumbed to gunshot injuries at 00:20 a.m. It is on the basis of this report that the case is converted from Section 307 I.P.C. to Section 302 I.P.C.

17. It is required to be mentioned that the matter was of 1997, whereas the charge sheet has been submitted against the accused-appellant in the year 1997, but the trial commenced in the year 2006, as the accused-appellant was found absconding and process under Sections 82 and 83 Cr.P.C. have been initiated. The contention of the appellant for not appearing in the case was that his name is Alok Chauhan and not Kaushal. He then challenged the proceedings initiated against him under Section 83 Cr.P.C. in Criminal Misc. Application No.7484 of 1997 (Alok Chauhan Vs. State of U.P.). This Court while disposing of the application by order dated 26.11.1997 has made specific mention that the Magistrate before proceeding to pass any order under Section 83 Cr.P.C. shall satisfy whether any evidence has been collected to show the involvement of accused-appellant in the case. It is, thereafter, that the charge sheet has been submitted, trial concluded and judgment of conviction recorded.

18. The judgment of conviction is also challenged on the ground that the witnesses of fact are related witnesses, whose testimony is to be considered carefully. It is a settled position of law that the testimony of witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim. In such cases, Court has to adopt a careful approach in analyzing the evidence and if the testimony of related witness is found credible, the accused can be convicted. In the celebrated case of Ashok Kumar Chaudhary Vs. State of Bihar5, it is observed by the Supreme Court that the Court cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime, even though it is committed in their presence. It is in this backdrop that the Supreme Court has held, not to brushed aside the testimony of the related witnesses, merely because they are interested, but a duty is cast on the court to scrutinize such evidence with greater care and caution. This judgment is also considered by the trial court. The law on the point of related witness is also dealt with by the Supreme Court in the cases of M. Nageswara Reddy Vs. State of Andhra Pradesh and others6 & State of Punjab Vs. Gurpreet Singh and others7, wherein, it is held that the testimony of the witness cannot be discarded merely because the witness is related.

19. Before considering the deposition made by father and brother of deceased, as P.W.-1 and P.W.-2, respectively, it would be expedient to deal with the testimonies of formal witnesses and then the trustworthiness of witnesses of fact could be ascertained.

20. The first information report was registered by P.W.-3 Bhaiya Lal, who has deposed before the trial court that on 13.07.1997, he was holding the post of Constable Clerk in Police Station Kotwali, District Etawah when Sunder Lal Gupta (P.W.-1) came with a written information, written by Ram Prakash Gupta that Deepak Dixit alias Deepu and Kaushal had inflicted gun shot injuries on the son of informant, he registered the chik F.I.R. for offence under Section 307 I.P.C. He has also proved the general diary entry no.52 at 23:40 hours, he has been cross examined on various points to carve out a case of ante time F.I.R. It is mentioned in Exhibit Ka-3, the general diary entry that the injured was sent to District Hospital for medical examination and the injuries of injured were seen, from which blood was oozing out. The document and the statement of P.W.-3 clarifies that the deceased was first taken to police station and then to District Hospital, as has been mentioned in the written information.

21. Dr. P.C. Pandey, who was the Emergency Medical Officer of Dr. B. R. Ambedkar Combined Hospital (Male Section), Etawah has appeared in the case as P.W.-6 and proved the death report of the deceased Kamlesh Kumar Gupta as Exhibit Ka-11. It is specifically mentioned in the exhibit that Kamlesh Kumar Gupta aged about 30 years s/o Sunder Lal Gupta reached the emergency on 14.07.1997 at 00:20 a.m., brought by Constable Radha Charan of Police Station Kotwali, Etawah, who had gunshot wound and was brought dead. This intimation was received at the police station at 5:50 a.m. on 14.07.1997. S.I. Subedaar Singh P.W.-4 has made specific mention in his deposition that on getting the death report of deceased, the case was converted from Section 307 I.P.C. to 302 I.P.C. This witness has conducted inquest on the death body of deceased, which was carried out from 11:15 a.m. to 1:00 p.m. on 14.07.1997. He has proved the inquest report and other ancillary documents like photonash, chalanash, letter R.I. and letter C.M.O. He carried out inquest in presence of inquest witnesses, in whose opinion, the death was due to gunshot injury. The body was sealed and sent for post mortem examination, which was kept at the District Mortuary by P.W.-6 Dr. P. C. Pandey.

22. Dr. S.C. Dubey, who has conducted the post mortem examination on the death body of deceased Kamlesh Kumar Gupta on 14.07.1997 at 2:00 p.m., passed away when the case came up for trial. Hence, Jagdish Chandra Gupta (P.W.-7) the Nursing Assistant, who had assisted him during post mortem examination has proved the post mortem report as secondary witness stating that Dr. S.C. Dubey has conducted post mortem examination on the dead body of deceased Kamlesh Kumar Gupta and signed the post mortem examination report in his presence. He has identified the signatures and proved the same. The post mortem report reveals that the ante mortem injury is one fire arm wound of entry 2 cm X 2.2 cm on front of lateral aspect of lower and lateral aspect of right side from chest about 8 cm below and lateral from right nipple. Mark of blackening, tattooing and charring present all around the wound in an area of 10 cm X 8 cm. Margins are inverted

23. If the statement of Constable Bhaiya Lal (P.W.-3), Dr. P.C. Pandey (P.W.-6), Jagdish Chandra Gupta (P.W.-7) and the initial statement of S.I. Subedaar Singh (P.W.-4) is taken into consideration in totality. It reflects only one conclusive inference that Kamlesh Kumar Gupta suffered gunshot injury at night of 13.07.1997, who was taken to the police station, where he was found to be suffering from gunshot injury, blood was oozing out from the wound, then taken to the District Hospital, treated by Dr. P.C. Pandey (P.W.-6) and found that he was brought dead. Had there been an ante time F.I.R., the F.I.R. would have been lodged directly under Section 302 I.P.C. against the accused and not under Section 307 I.P.C. The learned trial court has rightly taken into consideration and held that the F.I.R. is within time without oblique motive of false implication. One more conclusive inference drawn is the death of Kamlesh Kumar Gupta was due to gunshot injury.

24. S.I. Subedaar Singh, the first Investigating Officer was entrusted with the investigation of the case on 13.07.1997, he has inspected the place of incident, prepared the site plan. The site plan was prepared by him on 15.07.1997, at the instance of informant, Sunder Lal Gupta (P.W.-1). He has also recorded the statement of Shailesh Kumar Gupta (P.W.-2). The site plan proved by him as Exhibit Ka-9 which reveals that the deceased was standing at the gate of Jain Dharmshala marked by english alphabet A. The witnesses, P.W.-1 and P.W.-2 were standing at a place marked by english alphabet C. It is shown that the accused had fired shots at a distance of two paces, the place of accused is shown by english alphabet B and distance between the witness and the accused was five paces. During his cross-examination, he has stated that he came to the spot on 13.07.1997 five to seven minutes before 12:00 at night, where he found Ratan Chandra Jain, Rakesh, Suresh, Vinod alias Pappu and Popey. Marriage was of their sister. He has further stated that he came to know that there was some differences between deceased Kamlesh Kumar Gupta and Popey as both were partners in a business and thereafter, he thought it necessary to take statement of Popey. This angle of investigation shows that the Investigating Officer has also taken into consideration the relation between deceased and Popey in whose sisters marriage, the deceased and his family gathered. This further shows the presence of witnesses P.W.-1 and P.W.-2 at the place of incident. His inconsistent statement about the time of inquest will not make this witness untrustworthy because later on he has made specific mention that the inquest was started at 11:15 a.m. instead of 7:15 a.m.

25. The second Investigating Officer Karnavir Singh Sachan (P.W.-5), who has carried out investigation from 20.08.1997 has recorded statements of witnesses. He has submitted charge sheet against the accused. During his cross-examination, he has made specific mention that on the basis of direction of the High Court, he inquired into and found that Alok Chauhan is also known by the name of Kaushal and further submits that he did not find it necessary to get the accused identified by the witnesses, as the accused resides in the same vicinity and known to persons. In his further cross-examination, he has stated that Rajesh and Neeraj gave affidavits disclosing therein that Kamlesh Kumar Gupta was in the influence of liquor, which led the fire from 315 bore pistol. The statement of this witness shows that the accused is known by the name of Kaushal. The deponents Rajesh and Neeraj did not appear as witnesses during trial. Moreover, the deceased under influence of liquor is not revealed from medical evidence. Neither Dr. P.C. Pandey (P.W.-6) nor the post mortem examination report Exhibit Ka-12 reveals that the deceased was under the influence of liquor. Not in defense either.

26. Therefore, the statements of formal witnesses have established the place of incident, the time of incident and the presence of witnesses in the marriage ceremony.

27. Now, the point of concern is the trustworthiness of related witnesses and the involvement of accused-appellant, who has been convicted and sentenced for offence under Section 302 read with Section 34 I.P.C. It is pertinent to point out here that the co-accused, as per the record placed, is still absconding.

28. Sri Sunder Lal Gupta, P.W.-1, father of deceased has lodged the F.I.R. His presence at the place of incident is not disputed, as he and his family members consisting of deceased and P.W.-2 were gathered in the marriage ceremony. He has witnessed the incident and is a probable witness. It is a general tendency that when the family visits marriage ceremonies, they tend to be together. The accused Deepak Dixit and Kaushal have been named in the F.I.R., which is prompt. The name of Kaushal is mentioned in F.I.R., as per the name disclosed by the people gathered at the place, but during investigation, the real name of Kaushal came into light and therefore the charge sheet has been submitted. During the cross examination, this witness has admitted giving an affidavit to the police and further submits that the Investigating Officer has not recorded his statement, though his statement has been recorded by the first Investigating Officer P.W.-4 S.I. Subedaar Singh and it is at his instance that the site plan was prepared. Merely giving an affidavit to the police by a witness cannot nullify the statement recorded by the Investigating Officer, when the witness is stating before the trial court about the incident. Moreover, the informant was present at the place of incident, he has seen the incident, he has reported the incident without delay and he knew the accused-appellant prior to the incident though he was not clear about the name of accused-appellant.

29. Shailesh Kumar Gupta (P.W.-2) has also stated in his examination-in-chief that he was present at the place of incident along with other persons and witnessed the incident, wherein Deepak Dixit and Kaushal (who has been identified in the dock examination), had opened fire on Kamlesh Kumar Gupta. One bullet hit the deceased, whereas his brother skipped the second fire. He has also stated that Deepu fired first, which was skipped and the deceased suffered the second fire, which was shot by the accused-appellant. In his cross-examination, this witness has admitted that he has not made the statement before the Investigating Officer as to who had fired the first shot and also about the detrimental shot was fired by the accused-appellant. This statement of this witness is an improvement because it is nowhere the case even in the affidavit filed by this witness that the detrimental shot has been fired by the accused-appellant, but this improvement will not absolve the accused-appellant from his role of firing at the deceased. The evidence on record reveals that the accused-appellant came to the place of incident along with co-accused and fired a shot. It is therefore, the conviction has been recorded with the help of act committed by the accused-appellant in furtherance of common intention. As such, it is not of importance that who has fired the detrimental shot. This witness during his cross-examination has also stated that the fire was shot at his brother from a distance of ten paces. It has been argued by the learned counsel for the appellant that blackening, tattooing and charring are not possible if the fire was shot from a distance of ten paces. According to the site plan, the accused shot at the deceased from a distance of two paces. The laymen can never be sure about the distance until and unless it has been measured. The inconsistency in the statement of P.W.-2 Shailesh Kumar Gupta is not material in nature.

30. As such, the witnesses of fact are not only trustworthy and consistent in their statements, but their presence at the place of incident is also probable and they are the eye witnesses of the incident. They have also established the identity of the accused-appellant and his role of firing at the deceased.

31. We have considered the entire evidence on record, which are clinching in nature. The matter pertains to direct evidence, where the motive, though at the back stage, but attributed on the accused-appellant of helping the co-accused in the design to exterminate the deceased. The trial court has considered the entire evidence in right perspective. There is no infirmity in appreciation of evidence carried out by the trial judge. It is rightly held that the offence of murder is committed by the accused-appellant in furtherance of common intention. Therefore, we did not find any reason to interfere with the findings of the trial court. The grounds raised in the appeal are not tenable in the eyes of law. The appeal deserves to be dismissed.

32. We have also considered the arguments of learned counsel for appellant on the point of conversion of conviction of appellant from Section 302 I.P.C. to Section 304 I.P.C. and also gone through the judgments cited, but the evidence in the present case does not qualify the ingredients of Section 304 I.P.C., as the act attributed on accused-appellant was intentional and also having knowledge that by the act death would be caused.

33. Thus, the appeal is dismissed. The accused appellant is on bail. His bail bonds are forfeited. He is directed to be taken into custody.

34. The judgment of this Court along with the record shall be sent to the Trial Court for taking necessary steps so that the accused-appellant may surrender and serve the remaining sentence.

September 16, 2025

Shivangi