IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD,LUCKNOW BENCH, LUCKNOW.

INDEX

IN

CRIMINAL APPEAL NO. OF 2022

(Under Section 374(2) Cr.P.C.)

DISTRICT – AMBEDKAR NAGAR

Drishtduman Dubey @ Praveen Accused-Appellant

(In Jail Since 20/12/2021)

Versus

The state of U.P. Opp. Party.

S.N Particularts of papers Dates Annex Page.

1. Memo of Criminal Appeal

2. Certified Copy of impugned

judgement and order dated

20/12/2021 passed by Learned

Special Judge, POCSO “First”,

Ambedkar Nagar.

3. Application for Bail

4. Affidavit in support of

Application for Bail.

4. Application for condonation of

delay

5. Affidavit in support of
 application for condonation of

delay

7. I.D. Proof

8. Vakalatnama

LUCKNOW.

DATED:

(“ADVOCATE NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

 S.T. No.65 of 2019 arising out of

Crime Case No.171 of 2018

Under section 307/34,504,506(2) I.P.C.

P.S.- Jahangeerganj, Aalapar

District- Ambedkar Nagar.

S.T. No.01 of 2021 arising out of

Crime Case No.02 of 2019

Under section 3,25,27 Arms Act.

P.S.- Aalapar

District- Ambedkar Nagar.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD,LUCKNOW BENCH, LUCKNOW.

CRIMINAL APPEAL NO. OF 2022

(Under Section 374(2) Cr.P.C.)

DISTRICT – AMBEDKAR NAGAR

Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-

Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar

………..Accused-

Appellant

(In Jail Since 20/12/2021)

Versus

State of U.P. through principle Secretary Home Department, Civil

Secretariat ….……….Opp. Party.

 The Present Criminal Appeal Under Section 374 (2) Cr.P.C. Against

the Judgment And Order Dated 20/12/2021 passed by Ms. Farida Begum,

Learned Additional Sessions Judge, POCSO. First Ambedkar Nagar in

Sessions Trial No. 65 of 2019 "State of U.P. Versus Drishtduman

Dubey@Praveen Dubey and Another" arising out of Case Crime No. 171 of

2018 Under Section 307/ 34, 504, 506(2) 1.P.C. Police Station

Jahangeerganj. District- Ambedkar Nagar and in Sessions Trial No. 1 of

2021 "State of U.P. Versus Drishtduman Dubey@Praveen Dubey" arising

out of Case Crime No. 2 of 2019 Under Section 3, 25, 27 Arms Act Police

Station Anlapur, District- Ambedkar Nagar by which the Appellant have

been convicted Under Section 307/34 for 10 years rigorous imprisonment

and imposed fine of Rs. Ten Thousand, s 506(2) L.P.C. for 7 years rigoroms

imprisonment and imposed fine of Rs. Five Thousand, U/s 25 Arms Act for

1 year rigorous imprisonment and imposed fine of Rs. One Thousand and

U/s 27 Arms Act for 3 years rigorous imprisonment and imposed fine of Rs.

Two Thousand (all the punishments will run concurrently.

The present criminal appeal is being preferred on the following

amongst other grounds;

GROUNDS

1. Because the judgment and order passed by the Learned Trial Court

is against the weight of evidence available on record.

2. Because the judgment and order passed by Learned Trial Court is

based on conjectures and surmises.

3. Because the Learned Court below has appreciated those evidence,

which were not admissible in evidence.

4. Because the impugned judgment and order has been passed by the

Learned Court below without considering the facts and

circumstances of the case as well as material available on records.

5. Because the judgment and order of conviction passed by the

Learned Trial Court is contrary to the law and facts of the case.

6. Because the prosecution has not proved its case beyond all

reasonable doubts.

7. Because the prosecution is improbable and unnatural.

8. Because the Mother of the injured lodged a F.I.R. stating therein

that on 02/09/2018 at about 6.30 PM the appellar and three other

named persons attacked on his son an the appellant shot his son

with the intention on killing him, after making cooked-up story, for

falsely implicating the appellant just to harass him due to enmity.

9. Because on 02/09/2018 it was the occasion of Sri Krishna

Janmashtmi which was being celebrated at the Temple which is

adjacent to the house of Mahesh Dubey and on that occasion some

relatives of the informant were making celebratory gun firing

 (Harsh Firing) and the injured victim was also present there and in

that firing he received a firearm injury from the back side of chest.

10.Because for falsely implicating the appellant and to save the real

culprit who was a relative of the informant and the injured, they

made a cooked up story and lodged a FIR on the appellant and

three other named persons due to enmity.

11.Because the injured victim who was working as Homeguard as

such he was having connection with the local police and he himself

called the SHO, P/s Jahangeerganj and managed to falsely

implicate the accused persons.

12.Because after lodging the FIR the local police visited the place of

occurrence and prepared a Map of the place of occurrence in which

the local police with the garb of the informant have neither

mentioned the house of the Mahesh Dubey nor the temple where

the festival of Shri Krishan Janamashtmi was being celebrated,

songs were being played through DJ and people were dancing,

enjoying and making celebratory gun firing (Harsh Firing) and

accidently one fire has been made on the injured victim by his

relative.
13.Because the informant, injured victim and Ram Milan Dubey have

falsely stated that the appellant and three other named persons

attacked on the injured victim.

14.Because the names of two named accused persons (Rajneesh

Dubey @ Kaka and Ravi @ Umashankar Mishra) has been deleted

during the investigation on the basis of the statements of

independent witnesses.

15.Because the independent. eye witnesses Ravi Prakash Singh, Shiv

Prakash Singh and Babita have stated before. the local police and

also before Learned Trial Court that the injured victim have

received fire arm injury due to celebratory gun firing (Harsh

Firing) which was being made by the relatives of the informant,

but the same has not been considered by Learned Trial Court.

16.Because no any eye witness has seen the appellant firing 1 on the

injured victim they have only heard the sound of fire which has

been made by the relative of the informant the same has also been

considered by this Hon'ble Court while deciding the Bail

application of the appellant during his Trial, as- "The submission is

that from the bare perusal of the FIR as well as the statement of

another witness which the State has filed alongwith the counter

affidavit, it only indicates that the people have heard that the gun

shot was fired by the applicant. It has been submitted that neither
 there is any clear evidence to the aforesaid effect nor clear

statement any of the witness. Only general statement is there" and

with the above noted finding, granted Bail to the appellant during

his trial, but the same has also not been considered by the Learned

Trial Court and convicted the appellant without considering the

evidence available on record.

17.Because the local police with the garb of the injured. victim falsely

prepared the recovery memo of the gun and lodged a FIR U/s 3,

25, 27 Arms Act bearing case crime No. 2/2019 P/s Aalapur,

District- Ambedkar Nagar. It is relevant to mention here that there

is neither any independent eye witness of the alleged recovery nor

it has been properly tested in the Ballistic laboratory for

determination of fire, and in spite of sending the same to the

Ballistic laboratory the local police sent the same to the Ardmorer

of the police line, Ambedkar Nagar.

18.Because the appellant stated in his statement U/s 313 Cr.P.C. that

the local police has forcefully made him grab the gun after keeping

it in the bushes by themselves and there is no any independent eye

witness of the alleged recovery. Hence all the allegations are

baseless and on the basis of cooked up story. It is only made for

falsely implicating the appellant and nothing is in reality, and same

has also not been considered by the Learned Trial Court.

19.Because there is neither evidence nor any independent eye witness

of any occurrence as alleged by the informant but the same has not

been considered by the Learned Trial Court.

20.Because the prosecution was failed in proving the case against the

appellant beyond all reasonable doubts but Learned Trial Court has

convicted the appellant ignoring the statements of three

independent eye witnesses who has stated that the injured victim

have received fire arm injury due to celebratory gun firing (Harsh

Firing) which was being made by the relatives of the informant and

not by the appellant.

21.Because the incident and Place of incidents are doubtful. which has

not been proved beyond all reasonable doubts .. by the prosecution

as such no case is made out against the Appellant hence the

Appellant is entitled for the benefit of doubt.

22. No other Criminal Appeal or Criminal Revision is pending or filed

either before this Hon’ble Court or any Other Court against the

impugned judgement or order.

23. The appellant was on bail during his Trail.

PRAYER
 It is, therefore, most respectfully prayed that this

Hon'ble Court may graciously be pleased to admit and allow the

present criminal appeal and set aside the impugned judgment and

order dated 20/12/2021 passed by Learned Additional Session

Judge, POCSO, 'First' Ambedkar Nagar in the Session trial No. 65

of 2019 "State of U.P. Versus Drishtduman Dubey @ Praveen and

another" and Session trial No. 01 of 2021 "State of U.P. Versus

Drishtduman Dubey @ Praveen Dubey", in the interest of justice.

It is further prayed that during the pendency of present criminal

appeal, this Hon'ble Court may graciously be pleased to suspend

the conviction and sentence awarded to the appellant, the appellant

be released on the bail and realization of the fine may also kindly

be Stayed.

LUCKNOW.

DATED:

(“ADVOCATE NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

 S.T. No.65 of 2019 arising out of

Crime Case No.171 of 2018

Under section 307/34,504,506(2) I.P.C.

P.S.- Jahangeerganj, Aalapar

District- Ambedkar Nagar.

S.T. No.01 of 2021 arising out of

Crime Case No.02 of 2019

Under section 3,25,27 Arms Act.

P.S.- Aalapar

District- Ambedkar Nagar.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD,LUCKNOW BENCH, LUCKNOW.

CRIMINAL MISC. BAIL APPLICTION NO. OF 2011

(Under Section 389 Cr.P.C.)

IN RE:

CRIMINAL APPEAL NO. OF 2022

On behalf of

Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-

Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar

 ………..Accused-

Appellant

(In Jail Since 20/12/2021)

Versus

State of U.P. through principle Secretary Home Department, Civil

Secretariat ….……….Opp. Party.

To,

The Hon’ble the Chief Justice and his other companion Judges of the

aforesaid Court.

The humble application of the applicant named above Most

Respectfully Sheweth as Under:

1. That full facts and circumstances have been set-forth in the

accompanying affidavit, which forms part of this application

PRAYER.

It is, therefore, most respectfully prayed that this Hon'ble Court may

graciously be pleased to enlarge the accused –appellants on bail in the

Session trial No. 65 of 2019 "State of U.P. Versus Drishtduman Dubey @

Praveen and another" and Session trial No. 01 of 2021 "State of U.P. Versus

Drishtduman Dubey @ Praveen Dubey", during the pendency of the present

appeal before this Hon'ble Court to the satisfaction of the Court concerned.
 It is further prayed that realization of fine may be stayed, during the

pendency of the present appeal before this Hon'ble Court, in the interest of

the justice.

LUCKNOW.

DATED:

(“ADVOCATE NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

AFFIDAVIT

IN

CRIMINAL MISC. BAIL APPLICTION NO. OF 2011

(Under Section 389 Cr.P.C.)

IN RE:

CRIMINAL APPEAL NO. OF 2022

(Under Section 374(2) Cr.P.C. )

DISTRICT – AMBEDKAR NAGAR

Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-

Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar

………..Accused-

Appellant

(In Jail since 20/12/2021)

Versus

State of U.P. through principle Secretary Home Department, Civil

Secretariat ….……….Opp. Party.

 Pradyumn Dwivedi Age about 33 years, S/o-

Late Goving. Dubey, R/o- Singhpur,

P/s- Jahangeerganj,

District- Ambedkar Nagar

Religion- Hindu,

Occupation- Student, Qualification Graduate)

(Deponent)

I, the deponent above named do hereby solemnly affirm and state on

oath as under:

2. That the deponent is the Real Brother of the Appellant in above noted

appeal and as such he is fully conversant with the facts and

circumstances of the case deposed here under.

3. That the Mother of the injured lodged a F.I.R. stating therein that on

02/09/2018 at about 6.30 PM the appellant and three other named

persons attacked on his son and the appellant shot his son with the

intention on killing him, after making cooked-up story, for falsely

implicating the appellant just to harass him due to enmity.

4. That on 02/09/2018 it was the occasion of Sri Krishna Janmashtmi

which was being celebrated at the Temple which is adjacent to the

house of Mahesh Dubey and on that occasion some relatives of the

informant were making celebratory gun firing (Harsh Firing) and the
 injured victim was also present there and in that firing he received a

firearm injury from the back side of chest.

5. That for falsely implicating the appellant and to save the real culprit

who was a relative of the informant and the injured, they made a

cooked up story and lodged a FIR on the appellant and three other

named persons.

6. That the injured victim who was working as Homeguard as such he

was having connection with the local police and he himself called the

SHO, P/s Jahangeerganj managed to falsely implicate the accused

persons.

7. That after lodging the FIR the local police visited the place of

occurrence and prepared a Map of the place of occurrence in which

the local police with the garb of the informant have neither mentioned

the house of the Mahesh Dubey nor the temple where the festival of

Shri Krishan Janamashtmi was being celebrated, songs were being

played through DJ and people were dancing, enjoying and making

celebratory gun firing (Harsh Firing) and accidently one fire has been

made on the injured victim by his relative.

8. That the informant, injured victim and Ram Milan Dubey have falsely

stated that the appellant and three other named persons attacked on the

injured victim.
9. That the names of two named accused persons (Rajneesh Dubey @

Kaka and Ravi @ Umashankar Mishra) has been deleted during the

investigation on the basis of the statements of independent witnesses.

10.That the independent eye witnesses Ravi Prakash Singh, Shiv Prakash

Singh and Babita have stated before the local police and also before

Learned Trial Court that the injured victim have received fire arm

injury due to celebratory gun firing (Harsh Firing) which was being

made by the relatives of the informant, but the same has not beer

considered by Learned Trial Court.

11.That no any eye witness has seen the appellant firing on the injured

victim they have only heard the sound of fire which has been made by

the relative of the informant the same has also been considered by this

Hon'ble Court while deciding the Bail application of the appellant

during his Trial, as- "The submission is that from the bare perusal of

the FIR as well as the statement of another witness which the State

has filed alongwith the counter affidavit, it only indicates that the

people have heard that the gun shot was fired by the applicant. It has

been submitted that neither there is any clear evidence to the aforesaid

effect nor clear. statement any of the witness. Only general statement

is there" and with the above noted finding, granted Bail to the

appellant during his trial, but the same has also not been considered
 by the Learned Trial Court and convicted the appellant without

considering the evidence available on record.

12.That the local police with the garb of the injured victim falsely

prepared the recovery memo of the gun and lodged a FIR U/S 3, 25,

27 Arms Act bearing case crime No. 2 / 2019 P/s Aalapur, District-

Ambedkar Nagar. It is relevant to mention here that there is neither

any independent eye witness of the alleged recovery nor it has been

properly tested in the Ballistic laboratory for determination of fire,

and in spite of sending the same to the Ballistic laboratory the local

police sent the same to the Ardmorer of the police line, Ambedkar

Nagar.

13.That the appellant stated in his statement U/s 313 Cr.P.C. that the

local police has forcefully made him grab the gun after keeping it in

the bushes by themselves and there is no any independent eye witness

of the alleged recovery. Hence all the allegations are baseless and on

the basis of cooked up story. It is only made for falsely implicating the

appellant and nothing is in reality, and same has also not been

considered by the Learned Trial Court.

14.That there is neither evidence nor any independent eye witness of any

occurrence as alleged by the informant but the same has not been

considered by the Learned Trial Court.

15.That the prosecution was failed in proving the case against the

appellant beyond all reasonable doubts but Learned Trial Court has

convicted the appellant ignoring the statements of three independent

eye witnesses who has stated that the injured victim have received fire

arm injury due to celebratory gun firing (Harsh Firing) which was

being made by the relatives of the informant and not by the appellant.

16.That the incident and Place of incidents are doubtful which has not

been proved beyond all reasonable doubts by the prosecution as such

no case is made out against the Appellant hence the Appellant is

entitled for the benefit of doubt.

17.That the appellant is law abiding citizen and he would neither misuse

the liberty nor there is any chance to temper with the evidences.

18.That the appellant is in Jail Since 20/12/2021. And was in jail for few

months during the investigation.

19.That the appellant is ready to furnish his bail bonds and sureties to the

satisfaction of this Hon'ble court. 19. That the appellant is totally

innocent and he has not committed any offence.

20.That there is no any other criminal history of the appellant except

abovementioned two cases.

21.That there is no any made out against the appellant as alleged.

22.That in the circumstances narrated above, it is desirable in the ends of

justice that this Hon'ble court may kindly be please to enlarge the

appellant on bail in the above noted case crime No(s), during

pendency of this Criminal Appeal.

That the contents of Para of the affidavit are true to my

personal knowledge and those of paras of the affidavit are true

on the basis of record and those of paras of the affidavit are

true on the basis of legal advice, which all the deponent believes to be

true, no part of it is false and nothing material has been concealed in it.

So help me god.

Deponent.

I, “Advocate Name” , Advocate, Allahabad High Court,

Lucknow Bench, Lucknow do hereby declare that the person making this

affidavit and alleging himself to be true, and is known to me on the basis

of record and I am satisfied that he is the same person.

(“ADVOCATE NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

 Solemnly affirmed before me on this day of March, 2022

at about A.M./P.M. by the deponent who has identified by the

aforesaid Advocate.

I have satisfied myself by examining the deponent who has

understand the contents of this affidavit, which have been read over and

explained to him by me.

OATH COMMISSIONER.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

CRIMINAL MISC. BAIL APPLICTION NO. OF 2011

(Under Section 389 Cr.P.C.)

IN RE:

CRIMINAL APPEAL NO. OF 2022

(Under Section 374(2) Cr.P.C. )

DISTRICT – AMBEDKAR NAGAR

Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-

Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar

………..Accused-

Appellant

(In Jail since 20/12/2021)

Versus

State of U.P. through principle Secretary Home Department, Civil

Secretariat ….……….Opp.

Party.

APPLICATION FOR CONDONATION OF DELAY UNDER

SECTION 5 OF LIMITATION ACT

For the facts, reasons and circumstances as stated in the accompanying

affidavit, it is most respectfully prayed that this Hon'ble Court may

kindly be pleased to condone the delay in filing Present Criminal Appeal,

in the interest of justice.

LUCKNOW.

DATED:

(“ADVOCATE NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

IN THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

AFFIDAVIT IN SUPPORT OF APPLICATION FOR CONDONATION

OF DELAY

IN

CRIMINAL APPEAL NO. OF 2022

(Under Section 374(2) Cr.P.C. )

DISTRICT – AMBEDKAR NAGAR

Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-

Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar

………..Accused-

Appellant

(In Jail since 20/12/2021)

Versus

State of U.P. through principle Secretary Home Department, Civil

Secretariat ….……….Opp. Party.

Pradyumn Dwivedi Age about 33 years, S/o-

Late Goving. Dubey, R/o- Singhpur,

P/s- Jahangeerganj,
 District- Ambedkar Nagar

Religion- Hindu,

Occupation- Student, Qualification Graduate)

(Deponent)

I, the deponent above named do hereby solemnly affirm and state on

oath as under:

1. That the deponent is the Real Brother of the appellant in the above

noted Criminal Appeal and as such he is well conversant with the

facts of the case deposed hereunder.

2. That the deponent is a poor student and his father is a poor farmer and

they use to earn their bread anyhow.

3. That in the situations of COVID-19 Pandemic they were unable to

arrange the counsel fee and other expenses for filing the present

criminal appeal before this Hon'ble Court.

4. That the delay in filing this Criminal Appeal is neither intentional nor

otherwise it is only due to the reason that the deponent was unable to

arrange the counsel fee and other expenses in stipulated time.

I, the above noted deponent, do hereby verify that the contents of Paras 1

to 4 of the affidavit are true to my personal knowledge. No part of it is

false and nothing material has been concealed in it.

So help me god.

Deponent.

I, “Advocate Name” , Advocate, Allahabad High Court,

Lucknow Bench, Lucknow do hereby declare that the person making this

affidavit and alleging himself to be true, and is known to me on the basis

of record and I am satisfied that he is the same person.

(“ADVOCATES NAME”)

Advocate

Counsel for the Applicant

A.O.R.- A/K/XXXX/20XX

Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.

Mobile No. XXXXXXXX

Solemnly affirmed before me on this day of March, 2022

at about A.M./P.M. by the deponent who has identified by the

aforesaid Advocate.

I have satisfied myself by examining the deponent who has

understand the contents of this affidavit, which have been read over and

explained to him by me.

OATH COMMISSIONER.