RAJJU AND OTHERSversusSTATE

                                         Judgment Reserved On:-22.07.2026.
                                        Judgment Delivered On:-18.09.2026
         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2123 of 1985

Raffu And Others
                                                                 .....Appellant(s)
                                    Versus
State
                                                                .....Respondent(s)

Counsel for Appellant(s)         : Inder Pal Singh Tomar,                   Noor
                                   Mohammad, S.K.Agarwal
Counsel for Respondent(s)        : D.G.A.

Court No. - 43

                 HON'BLE SIDDHARTH, J.
                 HON'BLE VINAI KUMAR DWIVEDI, J.

                    (Delivered by Hon'ble Siddharth,J.)

1. Heard Sri Sushil Shukla, learned Senior Counsel assisted by Sri Kushagra
Srivastava, Ankita Tiwari and Shahrukh, learned counsel for appellant; Sri
Prem Shankar Prasad, learned AGA for State-respondent and perused the
judgment and order of the trial court and trial court record.

2. The present Criminal Appeal has been preferred against the judgment and
order passed by Addl. Sessions Judge, Ghaziabad, dated 13.08.1985 in
Sessions Trial No. 280 of 1984( State Vs. Raffu and another) convicting the
appellants under section 302 IPC read with section 34 IPC., and sentencing
each of them to undergo imprisonment for life.

3. The prosecution case in brief is that on 2-5-1984 some of the gathered
crop of Raffu was stolen by somebody. He suspected that deceased Yamin
had removed it and had kept it at his own threshing- floor. Mohd. Umar and
Raffu met in the mosque of the village. Mohd. Umar is the Pradhan of the
village and is also related to the accused Raffu who complained to him about
the removal of the gathered crop and also complained that it was kept at the
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threshing floor of Yamin. Mohd. Umar and a few other persons went to the
threshing floor of Yamin and found the complaint of Raffu to be correct. At
this Mohd. Umar asked some of the villagers to assemble at the Panchayat
ghar to discuss the matter. Number of persons assembled there Yamain also
participated in the meet. He denied the allegations and stated that some body
else might have put it there. At this there was a wordly duel between Raffu
and Yamin. The persons assembled there separated them and sent the two
brothers, accused Raffu and Kalloo to their house. Shortly afterwards Yamin
also left Panchayat ghar for his house. When he reached near the house of
Mahendi Hasan, Kalloo came out of his house and again begain to quarrel
with Yamin. He pushed down Yamin to the ground when Yamin was getting
up, Raffu fired from a gun at Yamin injuring him in the stomach. Their
houses were also nearby. The two accused ran towards their house and then
escaped in the directions of village Mubarakpur. Number of villagers who
were either returning from the Panchayat ghar or were at their houses, saw
the entire incident.

4. Mohd. Umar tied a hand- kerchief on the wound and went to the police
station for lodging the F.I.R. Near the bus-station he met Raja Matin. As
Mohd. Umar did not know Hindi well, he got a written report prepared by
Raja Matin and went to the police station. He lodged the F.I.R. at 10 A.M.
The police registered the case under section 302 I.P.C. Station Officer, Sri
Banshi Mohan Sharma took up the investigation of the case in his own
hands. He took Sri Jagdish Singh Solanki S.I., Sri Rajendra Pratap Singh S.I.
and some constables with him, reached village Nahal in the police jeep and
started the investigations. Under his directions Panchayatnama was prepared
by S.I. sri Jagdish Singh Solanki. The dead body of Yamin was sealed and
handed over to constables Rama Nand Tyagi and Dhiraj Singh, along with
connected papers, to get the post mortem examination conducted. The
investigation officer prepared the site plan, recorded the statements of the
witnesses and also took samples of blood-stained earth and ordinary earth
and sealed them in different containers. He searched for the accused but they
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were not traceable. On 3-5-1984 also he attempted to trace out the accused
but was unsuccessful. At this he submitted a report in the court of concerned
magistrate for issuing processes under sections 82 and 83 Cr.P.C. Accused
Raffu surrendered in court and was interrogated by the I.O. on 5-5-1984.
Property of accused, Kalloo, was attached on 6-5-1984 and Kalloo
surrendered in court on 7-5-1984. He was interrogated by the 1.0. on 11-5-
1984. On transfer of Sri Banshi Mohan Sharma, Sri Pritam Singh took
charge as station officer on 21-5-1984, he took the remaining investigation
of the case in his hands and, after completing it submitted charge sheet
against the accused on 9-6-1984.

5. Both the accused were charged for the offence under section 302 I.P.C.
read with section 34 I.P.C. They pleaded not guilty and claimed to be tried.
Prosecution examined Mohd. Umar P.W.1, Abdul Wajid P.W. 2, H.C.
Nawal Kishore Sharma P.W.3, Akhtar P.W.4, Dr. Hamid Ali Khan P.W.5,
constable Dhiraj Singh P.W.6, Sri Banshi Mohan Sharma S.I. P.W.7 and Sri
Pitam Singh S.I. P.W.8 to prove guilt of the accused.

6. Mohd. Umar P.W.1 is the pradhan of the village and is related to the
accused. He narrated the prosecution story about accused Raffu making a
complaint to him in the mosque about the removal of his gathered crop by
Yamin, his visit to the threshing floor of Yamin to verify it and the holding
of Panchayat at the Panchayat ghar where an altercation took place between
accused Raffu and deceased Yamin. He continued to give evidence that due
to exchange of hot words, he had sent away accused Raffu and Kalloo to
their house and shortly afterwards the Panchayat was also dispersed, that
Yamin also left for his house and the other participant also left for their
houses gradually, that he remained behind in order to have a talk with a
village and his attention was drawn by the noise created in the scuffle
between Yamin and Kalloo and that he saw Kalloo throwing down Yamin
on the ground and when Yamin was getting up Raffu fired at Yamin hitting
him in the stomach and killing him. He also gave evidence that he did not
know Hindi, so he got a written report prepared by Raja Matin on his way to
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the police station which was handed over to the police at the police station.
He proved the written report which is Ext. Ka 1 on the file.

7. P.W.2, Abdul Wajid, is the resident of the same village and his house is
adjacent to the place of incident. He gave evidence that on the date of
incident at about 9 A.M. he was smoking clay-pipe out side his house and
saw Yamin coming from the side of Panchayat ghar on his way to his own
house; that Yamin reached near the house of Mehdi Hasan which is opposite
to the house of accused Kalloo, that accused Kalloo; reached there and
started to quarrel with Yasmin and even threw him down on the ground and
that when Yamin was getting up, accused Raffu fired at Yamin injuring him
and thereafter both the accused ran away. He also stated that Wali
Mohammad and several others had assembled there and seen the incident.

8. P.W.3 H.C. Nawal Kishore Sharma was Head Moharir at P.S. Musoori on
2-5-1984. He prepared the check report Ext. Ka2 at 10 :00 A.M., and also
registered the case in the general diary copy of which is Ext. Ka.3 on the file.

9. P.W.4, Akhtar, was another witness of fact but he did not fully support the
prosecution version and was cross examined by the prosecution to show that
he had turned hostile. He gave evidence that on the date of incident he was at
his gher at about 8 or 9 A.M., that Raffu and several other persons were
coming from the side of fields and Raffu was saying that his gathered crop
was removed by Yamin, that several persons assembled at the place where
Panchayats are held and told Raffu that Yamin had not removed his crop,
that those persons went away to their respective houses saying that the
Panchayat would be held in the evening and that when he was intending to
go to his fields, he heard the sound of gun fire and on going to the house of
Mehdi Hasan, he saw Yamin lying dead but he did not see anybody
murdering him.

10. P.W., 5 Dr. Hamid Ali Khan, was posted for post mortem duty on 2-5-
1984. He gave evidence that he conducted post mortem examination of dead
body of Yamin at 3.35 P.M. and found that he died due to injury received by
him in the stomach which was a bullet wound. He also found two abrasions
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on his body. He proved his report Ext. Ka 4.

11 P.W.6, Constable Dhiraj Singh, gave evidence that he took the sealed
dead body of Yamin from village Nahal to Mohan Nagar Hospital via Police
Lines, Ghaziabad and handed it over to the doctor for post mortem
examination.

12. P.W.7, Sri Banshi Mohan Sharma, investigated this case. He proved
panchayatnama Ext. Ka 4A, report to the Reserve Inspector, Police Lines
Ext. Ka. 5, report to C.M.O. Ext. Ka 6, specimen impression of seal Ext. Ka
7, memo of location of injuries Ext. Ka 8 and the challan of the dead body
Ext. Ka. 9. He visited the spot and prepared site plan Ext. ka 10. He also
gave evidence that he recorded the statements of witnesses, took samples of
blood-stained and ordinary earth and sealed them separately and prepared its
memorandum Ext. Ka 11. He stated that he could not trace out the two
accused on 2-5-1984 and 3-5-1984 but 4 but they were not traceable and
therefore obtained processes under sections 82/83 Cr.P.C., ultimately the
two accused surrendered in court on two different dates.

13. P.W.8, assumed investigation on transfer of Sri Banshi Mohan Sharma
S.I., and, after completing it, submitted the charge sheet against the accused
on 9-6-1984.

14. After hearing the rival contentions and going through the trial court
record, we find that the prosecution has utterly failed to prove that the
appellant no. 2 namely Kallu shared the common intention to commit the
murder of the deceased Yamin with Appellant No. 1 namely Raffu. No
evidence has been led by the prosecution to suggest any prior concert or
arrangement between both the Accused-Appellants to commit the murder.
From the evidence of both the eyewitnesses i.e. PW-1 & 2, it is not
discernible that the Appellant Kallu shared common intention with
Appellant Raffu before Appellant Raffu fired upon the deceased, Yamin,
which was his individual act, even if it is so assumed. Neither prior to or
post incident anything is alleged to have been uttered or done by the
appellant, Kallu, to suggest if he too shared intention to commit murder of
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the deceased, Yamin. On the contrary evidence of both the eyewitnesses
examined by the prosecution goes to reveal that appellant, Kallu merely
caught hold of the deceased, Yamin and immediately left him without
causing any hurt and it is thereafter that all of a sudden, the appellant, Raffu
came from behind on the spot and is alleged to have fired upon the deceased,
Yamin, causing him singular firearm fatal injury. So there is no evidence
even to suggest development of any plan at the spot and during incident to
commit murder of the deceased Yamin between both the Appellants.
Therefore, in any view of the matter, the conviction of the appellant, Kallu,
is not sustainable on the strength of S. 34 IPC. Thus, having regard to all the
attending facts & circumstances of the case, the appellant, Kallu, is liable to
be acquitted of the singular charge as drawn by the trial court against him as
it could not be established by the prosecution against him.

15. In Ramashish Yadav v. State of Bihar, (1999) 8 SCC 555 the Apex
Court considered the ingredients of Section 34 IPC as follows:-

" Section 34 lays down a principle of joint liability in the doing of a criminal
act. The essence of that liability is to be found in the existence of common
intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. The distinct feature of Section 34 is the
element of participation in action. The common intention implies acting in
concert, existence of a pre-arranged plan which is to be proved either from
conduct or from circumstances or from any incriminating facts. It requires a
pre-arranged plan and it presupposes prior concert. Therefore, there must
be prior meeting of minds. The prior concert or meeting of minds may be
determined from the conduct of the offenders unfolding itself during the
course of action and the declaration made by them just before mounting the
attack. It can also be developed at the spur of the moment but there must be
pre-arrangement or premeditated concert."

17. Therefore it is clear that the appellant no.1, Raffu, caused the fatal injury
to the deceased and he died. There is sufficient evidence against the
appellant no.1, Raffu, of causing the murder of Yameen, hence the
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                                    conviction and sentence awarded by the trial court against the appellant no.1
                                    is confirmed.

                                    18. As considered above, sharing of common intention by appellant no.2 has
                                    not been proved by the prosecution case. Accordingly, the appellant no.2, is
                                    acquitted of all charges.

                                    19. Both the appellants are in jail. Bail bonds of appellant no.2, are cancelled
                                    and sureties are discharged.

                                    20. Appellant no.1, is directed to carry out remaining sentences.

                                    21. Appellant no.2 is set free.

                                    22. Criminal appeal is partly allowed.

                                    23. Let the copy of this judgment along with trial court record be returned to
                                    the trial court within 10 days.

                                    September 18, 2026
                                    Abhishek
                                                                      (Vinai Kumar Dwivedi,J.) (Siddharth,J.)




Digitally signed by :-
ABHISHEK YADAV
High Court of Judicature at Allahabad