Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(All) 553

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, SANJIV KUMAR, JJ.
Sheo Kumar Tiwari and Others – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 665 of 1984
Decided On : 15-05-2026

Advocates Appeared:
For the Appellants : Jitendra Shanker Pandey, Rajeev Goswami, Virendra Singh, Rakesh
Kumar
For the Respondents: D.P. Singh, V.V. Misra

Ocular evidence retains primacy over medical testimony unless both are totally irreconcilable. Furthermore, members of an unlawful assembly sharing a common object are collectively liable for the resulting crime, irrespective of individual overt acts, provided the evidence confirms participation in the common design.

Headnote:(A) Indian Penal Code, 1860 - Sections 148, 302 read with 149 - Criminal Procedure Code, 1973 - Section 374(2) - Murder - Unlawful assembly.

(B) Ocular evidence - Primacy of - Unless oral evidence is totally irreconcilable with medical evidence, it holds primacy; minor inconsistencies or variations in memory do not discredit otherwise reliable eye-witness testimony. (Paras 71, 79)

(C) Common object - Liability - Members of an unlawful assembly sharing a community of purpose and acting in furtherance thereof are equally liable for the criminal result of such acts, irrespective of specific overt acts assigned to each member. (Paras 86, 87)

Facts of the case:
The appellants were convicted for the murder of a person who was attacked by a group using firearms and blunt weapons. The defense contended that the incident was ante-timed, the witnesses were interested and inconsistent, the medical evidence contradicted the ocular testimony, and that the dying declaration was unreliable. It was further argued that individuals without specific assigned roles should not be liable under the provisions relating to unlawful assembly.

Findings of Court:
The court held that the delay or arithmetic calculation of proceedings at the police station does not invalidate the case. The court rejected the validity of the dying declaration due to the condition of the injured but found independent ocular evidence to be trustworthy. It concluded that the presence of the appellants as part of an armed group clearly demonstrated a common object.

Issues: Whether the prosecution successfully established the guilt of all appellants through reliable ocular testimony; whether common object can be attributed to members of an unlawful assembly without specific overt acts; the weightage of ocular testimony versus medical evidence.

Ratio Decidendi: Ocular evidence is the best evidence and prevails over medical expertise unless the contradiction is so extreme that it renders the oral story impossible. A common object is a shared mental design and, once established through the conduct of the assembly, members are collectively liable for the crime committed in furtherance of that design.

Result: Appeal dismissed; conviction and sentences confirmed.

Table of Content
1. factual background: narration of the incident, evidence presented, and testimonies recorded during trial. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45)
2. arguments: contentions regarding fir timing, evidentiary contradictions, and the credibility of eyewitnesses. (Para 37 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54)
3. assessment of fir reliability and the establishment of the place of occurrence. (Para 46 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64)
4. admissibility of dying declaration: medical condition of the deceased renders the statement unreliable if consciousness/fitness is doubtable. (Para 65 , 66 , 67 , 68)
5. evaluation of ocular versus medical evidence and the application of section 149 ipc for common object liability. (Para 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87)
6. final confirmation of conviction and order for surrender of the accused. (Para 88 , 89 , 90 , 91)

JUDGMENT :

SANJIV KUMAR, J.

1. The instant Criminal Appeal, under Section 374 (2) Cr.P.C. has been preferred by appellants/convicts Sheo Kumar Tiwari son of Jageraas Tiwari; Kailash Mishra son of Gopal Mishra; Raj Narain Tiwari son of Sheo Kumar Tiwari; Shiv Shankar Pandey son of Varmeshwar Pandey; Ishwar Das Tiwari son of Ramashray Tiwari; Durgadas Tiwari and Devdas Tiwari both sons of Mohan Tiwari, all residents of Village-Puras, Police Station- Bansdih Road, District-Ballia, against the judgment and order dated 03.03.1984 passed by Shri G.D. Dubey, Sessions Judge, Ballia, in Session Trial No. 75 of 1983, arising out of Case Crime No. 24 of 1983 ( State Vs. Sheo Kumar Tiwari and Others ), under Sections 148 and 302 read with 149 Indian Penal Code, 1860, (in short IPC), Police Station-Bansdih Road, District-Ballia.

2. By the impugned judgment and order, all the appellants were held guilty and have been convicted and sentenced to undergo imprisonment for one year’s rigorous imprisonment for offence punishable under Section 148 IPC; each of them were further sentenced to undergo imprisonment for life for offence punishable under Section 302 read with 149 IPC, and it was directed that all the sentences shall run concurrently.

3. The present Criminal Appeal in regard to accused appellant nos. 1 Sheo Kumar Tiwari and appellant no.3 Raj Narain Tiwari, has abated vide order dated 4^th July, 2025. Therefore, the present Criminal Appeal now proceeds in regard to appellant Nos. 2, 4, 5, 6 and 7, to wit, Kailash Mishra, Sheo Kumar Pandey, Ishwar Dayal Tiwari, Durga Das Tiwari and Deo Das Tiwari, respectively, only.

4. Brief facts of the prosecution case are that informant Ram Ji Singh son of Ram Jhalak Singh, resident of Village Puras, Police Station- Bansdih Road, District- Ballia, submitted a written application (tehrir) dated 08.02.1983 (Ext. Ka-2) in Police Station- Bansdih Road, stating therein that earlier he had lodged a report with regard to assault committed by Sheo Kumar Tiwari and others, which was being inquired. Sheo Kumar Tiwari and his men were under impression that informant’s brother Akhand Pratap Singh, a Sub-Inspector in Police Department, was doing pairvi in that case. His brother Akhand Pratap Singh had come to home, on leave, with regard to a marriage ceremony.

5. Today, i.e., 08.02.1983 at about 06:30 p.m. when applicant and his brother Akhand Pratap Singh, nephew Ranvijay Singh, Moti Lal Gonsai son of Nand Kishore Gonsai, Sudarshan Singh son of Shiv Nandan Singh all resident of Village- Puras, and Kamta Singh son of Ram Govind Singh resident of Village- Rohua, Keshav Singh son of Faujdaar Singh resident of Village- Harpur, Police Station- Bansdih Road, were sitting at his door around bonfire (alaao), when Kailash Mishra, Sheo Kumar Tiwari, Raj Narain Tiwari, carrying guns in their hands, alongwith Shiv Shankar Pandey,