Jammu & Kashmir High Court
Dev Raj vs State Of Jammu And Kashmir on 16 October, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2025:JKLHC-JMU:3437-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No.: CRA No. 57/2009
CrlM No. 1284/2023
c/w
CONF No. 22/2009
CRA No. 58/2009
IA No. 5/2011
Reserved on: - 18.09.2025
Pronounced on: - 16.10.2025
Uploaded on: - 17.10.2025
Whether the operative part or full
judgment is pronounced:- 16.10.2025
CRA No. 57/2009
Dev Raj, Age 40 years
S/o Sh. Krishan Lal
R/o Goal Pattan Gajansoo
Tehsil and District Jammu
....Appellant(s)
Through:- Mr. S. C. Sharma, Advocate
V/s
State of Jammu and Kashmir .....Respondent(s)
Through:- Mr. Sunil Sethi, Spl. PP
CRA No. 58/2009
Balwan Singh Aged 60 years
S/o Visheshwar Chand
R/o H.No. 217 Janipur, Jammu
At present lodged in central
Jail Kot Bhalwal Jammu ....Appellant(s)
Through:- Mr. G. S. Thakur, Advocate
V/s
State of Jammu and Kashmir
.....Respondent(s)
Through:- Mr. Sunil Sethi, Spl. PP
CRA No. 57/2009 c/w
CONF No. 22/2009
CRA No. 58/2009 Page 1 of 18
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CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
(Per: - Sanjay Parihar-J)
1. These appeals arise from the judgment and order dated 05.10.2009
and 22.10.2009 passed by the Sessions Judge, Jammu, in FIR No. 70/2001
registered at Police Station Bahu Fort under Sections 302, 307, 326, 109,
and 34 RPC. By the impugned judgment, the appellants Balwan Singh and
Dev Raj, along with co-accused Gandharb Singh, were convicted and
sentenced to life imprisonment for the offence under Section 302 RPC and
to five years' rigorous imprisonment for the offences under Sections 307
and 326 RPC, besides a fine of ₹50,000 each. The trial court also referred
for confirmation of the sentence.
2. During the pendency of the appeals, co-accused Gandharb Singh
passed away, resulting in abatement of the appeal insofar as he is
concerned. The present appeals, therefore, survive only with respect to
Dev Raj and Balwan Singh.
3. The prosecution's case, in brief, is that appellant Balwan Singh had
a dispute with one Ashok Kumar regarding a booking counter at the
Jammu Bus Stand. Ashok Kumar had authorised Pardeep Kumar @
Deepa (deceased) through a Power of Attorney to represent him in the
matter. On 24.04.2001, Pardeep Kumar, along with his friend Kamal
Raj@Pappu (also deceased) and PW Sanjeev Kumar, had gone to the JDA
office at Panama Chowk, Jammu, to attend proceedings related to the
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dispute, pursuant to directions from a civil court to approach the JDA
authorities for resolution.
4. On 24.04.2001, deceased Pardeep Kumar (alias Deepa) and Kamal
Raj (alias Pappu), along with PW Sanjeev Kumar (the complainant), were
present at the first floor of the JDA office complex at Panama Chowk,
Jammu. While they were conversing, appellants Balwan Singh and
Gandharb Singh arrived at the spot, accompanied by Gandharb Singh's
Personal Security Officer, i.e. Appellant Dev Raj, who was armed with an
AK-56 rifle. The appellants began abusing Pardeep Kumar. When he
objected, Balwan Singh allegedly exhorted Gandharb Singh and Dev Raj
to fire at the trio. Acting on this, Dev Raj opened fire, killing Pardeep
Kumar and Kamal Raj on the spot, while Sanjeev Kumar was assaulted
with the butt of a 12-bore gun, which Balwan Singh had snatched from
Gandharb Singh. Thereafter, the appellants threw Sanjeev Kumar out of
the window. The injured witness managed to crawl to safety and was
taken to the hospital. On this basis, FIR No. 70/2001 under Sections 302,
307, 326, 109, and 34 RPC was registered at Police Station Bahu Fort.
After completion of the investigation, the challan was presented before the
Chief Judicial Magistrate, Jammu, and subsequently committed to the
Sessions Court. The Sessions Judge, Jammu, after examining 40 witnesses
out of 53 cited by the prosecution and considering the defence evidence,
convicted and sentenced the appellants as earlier noted.
5. In appeals, the appellants challenged the conviction primarily
because:
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PW Sanjeev Kumar, the purported eyewitness, gave contradictory
statements and lacked credibility due to his antecedents.
PW Onkar Singh, another alleged eyewitness, was a planted witness
with a criminal background, and his delayed disclosure of the
incident (on 06.05.2001) rendered his testimony unreliable.
No test identification parade was conducted to identify appellant
Dev Raj, who was allegedly unknown to the witnesses.
The deceased themselves were alleged to be persons of criminal
background, and their presence at the JDA complex was suspicious.
The police reached the scene only after 5 PM, indicating
suppression of the true genesis of the incident and fabrication of the
prosecution's story.
6. The Counsel appearing for appellant Dev Raj (in CRA No.
57/2009) contended that the Investigating Officer, Abdul Rouf Lone, in
his deposition, admitted that Dev Raj had acted in exercise of his right of
private defence to protect his protectees, co-accused Gandharb Singh,
from the complainant party. It was argued that the firing was not
intentional or premeditated but a defensive act, which at best constitutes
culpable homicide not amounting to murder, and therefore, a conviction
under Section 302 RPC was unsustainable. Counsel further argued that the
deceased themselves were armed and had a long-standing enmity with
Balwan Singh and Gandharb Singh, indicating that they were the
aggressors.
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7. While relying on the judgment of Hon'ble Supreme Court in case
titled "Darshan Singh vs. State of Punjab" reported as AIR 2010 SC
1212, it was submitted that the prosecution's evidence did not substantiate
a charge of murder. The counsel for appellant Balwan Singh also adopted
similar arguments, asserting that PW Sanjeev Kumar (complainant) was
not an actual eyewitness but a planted witness introduced through
padding. His version that he was thrown out of a window was described
as unbelievable. It was further argued that there was no credible evidence
of conspiracy or common intention, as the alleged exhortation ("lalkara")
by Balwan Singh to kill the deceased was not corroborated by any
independent evidence. Both defence counsels urged that, even if the
prosecution version is accepted, the case would, at most, amount to
culpable homicide not amounting to murder since there existed prior
animosity, and the deceased had earlier threatened Balwan Singh over the
bus stand dispute.
8. Conversely, Senior counsel for the State and the complainant
argued that the case clearly involved misuse of an official service weapon
by appellant Dev Raj at the instigation of Balwan Singh and co-accused
Gandharb Singh. The evidence unambiguously established that the fatal
firing was done from Dev Raj's service rifle. During cross-examination,
the defence failed to show that the firing came from any weapon other
than the one allotted to Dev Raj. PW Sanjeev Kumar, being an injured
eyewitness, withstood cross-examination and credibly testified that the
firing was done at the direction of the co-accused. His testimony, it was
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contended, inspires confidence and rules out any false implication. The
argument denying Balwan Singh's exhortation ("lalkara") was also
rejected, as the evidence clearly showed that he had instigated Dev Raj to
fire and kill the deceased, which he did.
9. We have given our anxious consideration to the rival submissions
and perused the record with care. The principal defence projected on
behalf of the appellants is that appellant Dev Raj had acted in exercise of
his right of private defence of person to avert an impending assault which,
according to him, was directed towards co-appellants Balwan Singh and
Gandharb Singh by the deceased Pardeep Kumar @ Deepa and Kamal
Kumar @ Pappu. It has been urged that the situation was so grave and
sudden as to create a reasonable apprehension in the mind of appellant
Dev Raj that death or at least grievous hurt was imminent, whereupon he,
to protect himself and his companions, fired the fatal shot.
10. To substantiate the plea, reliance has, been placed upon the
judgment of the Hon'ble Supreme Court in Darshan Singh v. State of
Punjab and Anr., (2010) 2 SCC333, wherein the Apex Court has lucidly
laid down that the right of private defence is available to a person who is
suddenly confronted with the necessity of averting an impending danger
and not to one who brings about such a situation by his own act. The right
commences the moment a reasonable apprehension of danger arises and
continues so long as such apprehension subsists. It is equally well settled
that in exercising such a right, the force employed should not be wholly
disproportionate or much greater than what is necessary for protection.
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11. Adverting to the facts of the present case, it is an admitted position
that there existed a dispute between the parties concerning the KMD
transport counter at Bus Stand, Jammu. The evidence of PW Ashok
Kumar and PW Abdul Rouf Lone establishes that both the appellants and
the deceased party were present at the office of the Vice-Chairman, JDA,
on 24.04.2001 pursuant to directions of the Civil Court requiring
adjudication of the said dispute. The presence of both sides at the scene of
occurrence thus stands admitted. The antecedent civil litigation and the
business rivalry are factors which demonstrate that the occurrence did not
arise out of a sudden and unforeseen quarrel but was the culmination of a
continuing discord between the parties.
12. In this backdrop, the plea of private defence has to be tested on the
touchstone of whether there existed a reasonable and imminent
apprehension of death or grievous hurt at the hands of the deceased and
whether the force used by appellant Dev Raj was proportionate to such
apprehension. The material on record, however, prima facie suggests that
the appellants were not wholly innocent victims of a sudden assault but
participants in a dispute already brewing between the parties. The firing
by appellant Dev Raj, therefore, appears to have exceeded the bounds of
lawful private defence as contemplated under Sections 96 to 106 IPC,
being disproportionate to the threat perceived.
13. Admittedly, appellant Dev Raj was serving as the Personal Security
Officer of deceased/appellant Gandharb Singh and had been duly allotted
an AK-47 rifle for his official duties. The said weapon, an AK-56 rifle
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bearing No. 15178342, together with twenty-two live cartridges allotted to
him by the 3rd Battalion of Security, stands seized vide seizure memo
Ex.PW-SL on 24.04.2001. The possession and recovery of the weapon
from appellant Dev Raj is, therefore, a matter of record and not in dispute.
14. The prosecution has succeeded in establishing the presence of the
appellant at the scene of the occurrence through the ocular testimony of
PW Sanjeev Kumar and PW Onkar Singh, both of whom were present at
the JDA office complex when the incident took place. Their version
further finds corroboration from the evidence of PW Amar Singh, PW
Nanak Singh, PW Gian Singh, PW Trilochan Singh Wazir and PW
Rakesh Chander Gupta, to whom the information regarding the firing was
immediately conveyed by PW Onkar Singh. The said witnesses have
consistently deposed that they were informed, while in a meeting relating
to transport business, about the firing incident directed towards the
deceased at the hands of appellant Dev Raj.
15. It is true that PW Vijay Kumar Bagotra, PW Mohd. Mouzam Khan,
PW Balbir Singh and PW Vijay Kumar, though present at the spot, have
not assigned specific overt acts to any of the accused; yet, their
depositions uniformly confirm that indiscriminate firing took place inside
the JDA premises, causing panic and stampede. PW Balbir Singh even
sustained injuries in the commotion and, along with PW Vijay Kumar, has
categorically stated that blood was seen spilled in the corridor adjoining
the office of the Vice-Chairman, JDA.
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16. From the cumulative effect of the testimonies of the above
witnesses, there emerges a consistent narrative that an incident of firing
indeed occurred in the JDA office complex on the morning of 24.04.2001.
The plea of the defence that appellant Dev Raj was not present at the
scene is rendered untenable, particularly in view of the unimpeached
recovery of his service weapon from the spot and the ocular account of
multiple witnesses. The contention that PW Sanjeev Kumar lacked prior
acquaintance with appellant Dev Raj or Balwan Singh does not materially
dent the prosecution case, since the presence of the appellants at the scene
stands otherwise proved beyond a reasonable doubt through independent
and corroborative evidence.
17. Whether the prosecution has successfully established the presence
and participation of the appellants in the occurrence leading to the death
of the deceased, and whether the testimony of the injured eyewitnesses
can be relied upon despite their alleged criminal antecedents. Upon a
careful reappraisal of the evidence on record and the findings returned by
the learned trial court, it is evident that the defence has failed to dislodge
the consistent and corroborated version of the prosecution witnesses
regarding the presence of the appellants at the scene of the crime.
18. Even the defence witnesses, namely DW Ghulam Mohd. Bhat and
DW Kripa Ram have admitted facts that substantiate the prosecution's
case. Both witnesses have spoken of a dispute concerning the possession
of the KMDCounter at Bus Stand, Jammu, which had previously been
managed bythe Kashmir Motor Drivers Association and subsequently
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handed over to appellant Balwan Singh. Further, DW Kripa Ram, in his
cross-examination, conceded that he had seen the appellants descending
from the spot in an injured condition, their clothes being blood-stained.
His admission that he had inquired from them as to who had beaten them
but received no response, lends implicit support to the prosecution's
version and negates the defence plea of false implication.
19. The cumulative effect of the prosecution and defence evidence thus
leaves no manner of doubt regarding the presence of the appellants at the
scene of the occurrence. The contention that PW Sanjeev Kumar could
not have identified appellant Dev Raj merely because he was unaware of
his parentage stands rejected, as Dev Raj was admittedly serving as the
Personal Security Officer to the deceased appellant Gandharb Singh, who
in turn was a close associate of Balwan Singh, a fact never disputed or
shaken in cross-examination.
20. Having established the presence of the appellants, the next question
is whether the prosecution has proved their participation in the murderous
assault on the deceased. PW Sanjeev Kumar is not only an eyewitness but
also an injured witness, and as per the settled position of law, the
testimony of an injured witness commands greater evidentiary value than
that of an ordinary witness. Such a witness, having himself suffered
injuries in the same transaction, is unlikely to shield the real culprit or
falsely implicate innocent persons.
21. The Hon'ble Supreme Court in "State of U.P. v. Naresh and
Others" [(1997) SCC (Cri) 199] has held that the evidence of an injured
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witness must be accorded a higher degree of reliability, unless strong
grounds exist for its rejection. The testimony of PW Sanjeev Kumar
provides a coherent and consistent account of the entire incident and
inspires confidence. There is no material contradiction or infirmity to
discredit his version.
22. The defence has also attempted to impeach the credibility of PW
Sanjeev Kumar and PW Onkar Singh on the ground that both have
criminal antecedents. This contention has no merit in law. The learned
trial court has rightly placed reliance upon the decisions of the Hon'ble
Supreme Court in "Ram Sanjiwan Singh & Others v. State of Bihar"
[1996 Cri. L.J. 2528] and "State of U.P. v. Farid Khan" [AIR 2004 SC
5050], which hold that when the presence of an eyewitness at the place of
occurrence is natural and established, his testimony cannot be discarded
merely because of his prior involvement in criminal cases.In the present
case, PW Sanjeev Kumar's presence at the spot is not only natural but
also proved through his own injuries and corroboration by other evidence.
Being an injured witness, his testimony, giving a complete and coherent
account of the occurrence, cannot be disbelieved merely on account of
past misconduct.
23. Whether the testimonies of PW Sanjeev Kumar and PW Onkar
Singh are reliable, credible, and sufficient to establish the appellants'
culpability in the homicidal assault.PW Shamsher Singh, the then SHO of
Trikuta Nagar, recorded the statement of PW Sanjeev Kumar immediately
after learning that the injured had been shifted to the hospital. This
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statement, exhibited as EXPW-SK, has not been discredited in any
material particular during cross-examination. PW Sanjeev Kumar
categorically stated that the firing was directed towards the deceased, and
since he was accompanying them, he immediately ducked down when
appellant Dev Raj opened fire. The defence contended that the witness's
claim of being thrown out of the window of the VC JDA office was
improbable. However, this argument does not hold merit.
24. Given the chaotic circumstances at the time of firing, with people
running in panic, the witness being beaten by appellant Balwan Singh
with the butt of a rifle, and witnessing his companions receiving gunshot
injuries, it was natural for him to attempt an escape. His statement that he
jumped through the adjacent window, boarded an auto, and proceeded to
the railway station, where his van (JK02K 8455) was parked, is both
plausible and corroborated.
25. PW Rakesh Bakshi corroborates this version, deposing that on
24.04.2001, while present at the railway station, he saw Sanjeev Kumar
arriving in an auto, visibly terrified, with both legs fractured. He then
accompanied the injured to the hospital. This independent corroboration
lends strong credence to PW Sanjeev Kumar's account. During cross-
examination, the defence suggested to PW Sanjeev Kumar that the
deceased had attempted to snatch the rifle from appellant Dev Raj, which
the witness denied. This suggestion itself implies that the defence
acknowledged the presence of the witness at the scene of the occurrence.
Such a line of questioning inadvertently fortifies the prosecution's case,
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confirming that PW Sanjeev Kumar was indeed present during the
incident.
26. According to PW Sanjeev Kumar, upon reaching the office of the
Vice Chairman, JDA, along with the deceased, they encountered the
appellants who were already present there. A heated exchange of words
ensued between the deceased and appellant Balwan Singh. At that
juncture, appellant Balwan Singh, along with Gandharb Singh, incited
appellant Dev Raj to fire upon the deceased, shouting an exhortation to
"kill all." Thereafter, Dev Raj opened fire with his service rifle, resulting
in the instantaneous death of Pardeep Kumar and Kamal Raj, while PW
Sanjeev Kumar himself fell on the ground and sustained injuries. The
scene was drenched in blood, with visible stains across the corridor details
that bear the hallmarks of a truthful narration. The consistency and
specificity of this testimony inspire confidence, and wefind no reason to
doubt its veracity.
27. The prosecution's version receives further corroboration from PW
Onkar Singh, who testified that he had received a telephone call from the
deceased Pardeep Kumar on the morning of 24.04.2001, asking him to
come to the JDA office regarding the dispute over the KMD Counter at
the Bus Stand. He arrived there at about 11:00 a.m., parked his vehicle,
and while standing near a rehriwala preparing lemon water, he saw the
deceased, accompanied by PW Sanjeev Kumar, proceeding towards the
JDA office. At that moment, the appellants arrived in their vehicle. Dev
Raj, serving as PSO, was armed with an AK rifle, while Gandharb Singh
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carried a 12-bore gun.PW Onkar Singh categorically deposed that Dev
Raj fired upon Pardeep Kumar and Kamal Raj from a distance of about 4-
5 feet, and that the deceased had not attempted to snatch the weapon. He
also heard Balwan Singh and Gandharb Singh exhorting Dev Raj to fire.
Though the defence questioned the delay in recording his statement (from
24.04.2001 to 06.05.2001), both the witness and the Investigating Officer
satisfactorily explained that the delay was occasioned by the funeral rites
of the two deceased, who were close associates of the witness, and the
period of mourning observed by their families.
28. PW Sanjeev Kumar has also confirmed the presence of PW Onkar
Singh at the scene, and his testimony thus lends corroborative strength to
the prosecution'scase. The testimonies of PW Sanjeev Kumar and PW
Onkar Singh are natural, consistent, and corroborative of each other. Both
witnesses have given a coherent account of the sequence of events, which
stands reinforced by medical and circumstantial evidence. The defence
has failed to impeach their credibility or establish any material
contradictions. The version of the prosecution is, therefore, found reliable
and trustworthy, and the court finds no reason to disbelieve the ocular
account of these two key witnesses.
29. Both the deceased sustained three gunshot injuries, including one
that pierced the arm and chest, with AK-56 cartridges recovered from the
scene. Of the 30 rounds issued to appellant Dev Raj, eight were fired
during the incident, while 22 rounds with a magazine were recovered
from the appellants at Batra Hospital, where from they were subsequently
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arrested. The ballistic expert confirmed the mechanical efficacy of the
rifle, which was handed over to the police upon arrest
30. The evidence establishes that there was a clear enmity between the
appellants and the deceased over the KMD counter. The trial court noted
that Gandharb Singh had been previously arrested in a rape case and that
the deceased, Pardeep Kumar, had publicly tarnished his image during the
Assembly elections, further escalating the dispute with Balwan Singh,
who was allied with Gandharb Singh. It was also established that Balwan
Singh operated from Gandharb Singh's shop in Karan Market, Jammu,
indicating their close association. The deaths occurred from firing by the
service weapon allotted to appellant Dev Raj, a fact not denied during
cross-examination, and no evidence was presented to suggest that any
other weapon was used. The testimony of PW Sanjeev Kumar and other
prosecution witnesses demonstrates that the killing was carried out at the
coaxing and exhortation of Balwan Singh, with Dev Raj executing the act,
and nothing in cross-examination or the appellants' Section 342 Cr.P.C.
statements casts doubt on the prosecution's narrative.
31. The appellants' attempt to portray the incident as a case of firing in
self-defence or to protect the protectees by the PSO is found to be wholly
unconvincing. The deceased were unarmed, as confirmed by the eye
witnesses and version of I/O that no weapons were recovered from either
the deceased, and therefore there was no occasion for appellant Dev Raj to
open fire under the directions of the other appellants. The assertion that
Balwan Singh merely made a "lalkara" to prompt Dev Raj to fire does not
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absolve him of responsibility, as the words clearly directed Dev Raj to kill
the deceased. Since Dev Raj complied, it indicates a deliberate intention
by the appellants to eliminate the deceased. Much reliance was placed by
the appellants on the testimony of PW Abdul Rouf Lone, the investigating
officer, who stated that Dev Raj had exceeded his powers of defence.
However, the officer's testimony does not support the claim of self-
defence. While Dev Raj had a record of proper use of his service weapon,
he fired eight rounds at the scene, where the deceased were unarmed and
posed no threat. A PSO's duty is to protect the protectees reasonably and
not to resort to lethal force against unarmed individuals. The officer's
statement emphasised the limits of a PSO's responsibilities, not a
justification for the killing.
32. Although indeed, criminal acts generally arise from motive, the
absence of proof of motive does not negate the existence of criminal
intent. Motive is a psychological phenomenon, and the failure of the
prosecution to establish it does not imply the accused lacked intent. In this
case, the background of the dispute over the KMDA booking counter at
Jammu is relevant. The deceased had legal possession of the counter,
while appellant Balwan Singh sought to reclaim it, with support from the
KMD Association. The civil court had directed the matter to be settled,
which explains the presence of both parties at the scene on 24.04.2001,
but does not justify the actions of the appellants.
33. The fact that the appellants were carrying weapons indicates a
premeditated intent to create an impact on the deceased. Even if there was
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a minor scuffle, the deceased were unarmed and cannot be deemed
assailants. The killing of the deceased by Dev Raj, using an automatic
rifle, cannot be construed as self-defence; it clearly signifies an intention
to do away with the deceased. Furthermore, the longstanding enmity
between Balwan Singh, Gandharb Singh, and the appellants, particularly
Pardeep Kumar @ Deepa, suggests that the incident was used as an
opportunity to settle old scores. The minor scuffle that occurred on the
day of the incident, along with minor injuries sustained by the appellants,
does not justify the excessive use of force. The disproportionate firing
demonstrates that the appellants exceeded the limits of self-defence and
acted with a clear intention to kill.
34. In conclusion, the evidence unequivocally establishes that the
appellants, motivated by old enmity and with deliberate intent, instructed
Dev Raj to fire upon and kill the unarmed deceased. The act of firing by
the PSO cannot be considered self-defence, and the appellants' actions
constitute a deliberate and unlawful attempt to eliminate the deceased,
transcending any legitimate duty of protection.
35. In the facts and circumstances of the case, it is evident that the
investigation against the appellants was conducted fairly and
transparently, free from any preconceived bias. The claim of self-defence
is wholly negated by the evidence collected and appreciated by the trial
court. There is no indication that the deceased were aggressors or
assailants; rather, the evidence overwhelmingly shows that the appellants
abused the deceased, which led to a heated exchange of words. This
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provoked the appellants to direct PSO Dev Raj to open fire, which he did
immediately, killing both deceased. Dev Raj fired eight rounds from his
service weapon, and the fact that bullets struck both deceased in the chest
area clearly demonstrates an intention to eliminate them, an act that far
exceeded any reasonable measure of self-defence. There is thus no reason
to interfere with the trial court's findings, and the judgment does not
suffer from any perversity. Consequently, these appeals are devoid of
merit and are dismissed. The convictions of the appellants are accordingly
sustained, their bail bonds are cancelled, and they are directed to surrender
to the custody of the trial court to undergo the sentence as ordered.
36. A copy of the judgment be notified to trial court for taking
sequential steps for enforcing the sentence against the appellants.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
JAMMU
16 .10.2025
Pawan Angotra
Whether the order is speaking? : Yes
Whether the order is reportable? : Yes
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