Gatu vs State (2025:Rj-Jd:36096-Db)
2025 Latest Caselaw 6155 Raj

Rajasthan High Court - Jodhpur

Gatu vs State (2025:Rj-Jd:36096-Db) on 12 August, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:36096-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                D.B. Criminal Appeal No. 717/2001

Gatu S/o. Mogji Sargada, resident of Bodigama Chhota, Tehsil
Aaspur, Police Station Aaspur, District Doongarpur (Rajasthan)
                                                                        ----Appellant
                                       Versus
State of Rajasthan
                                                                      ----Respondent
                                   Connected With
             D.B. Criminal Jail Appeal No. 698/2001
Gattu
                                                                        ----Appellant
                                       Versus
State of Rajasthan
                                                                      ----Respondent


For Appellant(s)               :    Mr. Jitendra Singh Champawat
                                    for Mr. Shambhoo Singh
For Respondent(s)              :    Mr. Vikram Singh Rajpurohit, PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

HON'BLE MR. JUSTICE RAVI CHIRANIA

Judgment

12/08/2025 Per Hon'ble Mr. Ravi Chirania, J.

1. Upon By Post communication received from the

Superintendent, Central Jail, Udaipur dated 27.9.2001, jail appeal

D.B. Criminal Jail Appeal No.698/2001 (Gattu Vs. State) by

accused Gattu S/o. Mogji Sargada was registered before this

Court against the judgment of trial court dated 14.9.2001 passed

by Shri Goverdhan Singh Surana, RHJS, learned Sessions Judge,

Doongarpur in Sessions Case No.57/99, whereby accused-

[2025:RJ-JD:36096-DB] (2 of 18) [CRLA-717/2001]

appellant was convicted for the offence under Section 302 IPC and

was punished with imprisonment for life and a fine of Rs.1000/-.

In case of non-deposit of fine, he was punished with further

rigorous imprisonment for a period of three months.

2. Thereafter, it appears to the Court, that due to non-

communication of information to accused-Gattu filed D.B.

Criminal Appeal No.717/2001 (Gatu Vs. State of Rajasthan)

through the counsel. By this common judgment both the appeals

are being decided together.

3. The accused-appellant filed the present appeal on the

following grounds, as noted from memo of appeal filed by the

appellant :-

"(i) That the learned trial judge has grossly erred in law and

facts as well in arriving at a finding of guilt against the

appellant. It is in this submitted that there is no evidence

worth sterling on record to substantiate this fact that the

appellant has any intention or any motive to do such act.

(ii) That the learned trial court has not appreciated the evidence

on record in a right perspective manner and therefore

reached to a wrong conclusion and convicted the appellant

on the basis of conjunctures and surmises.

(iii) That there are material contradictions, omissions and

improvements in the testimonies of prosecution witnesses

which has not been properly appreciated by the trial court

while appreciating the evidence on record.

(iv) That there is not any iota of evidence against the appellant

which can connect the appellant for the commission of such

[2025:RJ-JD:36096-DB] (3 of 18) [CRLA-717/2001]

offence where as the learned trial court ignoring this very

material fact, convicted the appellant with no evidence.

(v) That the prosecution has examined as many as 7 witnesses

in support of its case and it is the admitted position that

there is a way to reach at the house of appellant, one has to

pass through the house of Ramanlal who is the father of

deceased. There is a dispute of the way between Ramanlal

and appellant PW-4 is the mother of the deceased who

stated that when she woke up then she saw the appellant

running. She has also stated that Hakariya was also present

there but PW-2 Hakariya did not state anything that the

appellant put the water pot upon the deceased. The learned

Judge has not properly appreciated the evidence of the

witnesses while convicting the appellant.

(vi) That the PW-1 Dr. Laxman Singh in his statement has stated

that one bruise towards right side of the chest. He further

stated that during internal/medical examination blood spots

were found under the bruise. He also stated second third

and forth ribs are fractured. Regarding the nature of injury,

he stated that this injury can be caused by falling a hard

thing therefore there is no directed evidence that such injury

was caused by the appellant.

(vii) That regarding recovery of water pot PW-4 Smt. Suraj stated

that two water pots were in the hand of appellant which

were laying at the place of incident but recovery memo

shows that it was recovered from the house of the appellant

which has been stated by the Investigating Officer himself

[2025:RJ-JD:36096-DB] (4 of 18) [CRLA-717/2001]

and it was recovered on 07.05.1999, after six days of the

incident looking to this fact of the case, appellant was falsely

implicated in this case due to personal rivalry.

(viii) That looking to the peculiar facts and circumstances of the

case, the appellant deserves to be acquitted."

4. The facts as noted from record of trial court is that a written

report was made to police by PW-5 Manilal on 01.5.1999

(Exhibit-P/4), according to which, the accused-appellant by

throwing water-pot on the minor child of his relative, namely,

Ramanlal (father) and Smt. Sooraj (mother) caused injury,

on account of which the child died. Exhibit-P/4 is reproduced as

under :-

"fyf[kr fjiksVZ izkFkhZ Jh ef.kyky }kjk Fkkuk vf/kdkjh iqfyl Fkkuk vkliqj ftyk

Mwaxjiqj ¼bZ,Dlih&4½ fnukad 1-5-99 ,&18 lsok esa Jheku Fkkusnkj lkgc Fkkuk vkliqj fo'k;%& dk;Zokgh djus ckcr izkFkhZ%& ef.kyky iq= /kqfy;k ljxMk fuoklh cksMhxkek NksVk

egksn;th fuosnu gS fd es VsdVj ysdj dke ls eky x;k Fkk ogk ij dfjc lck ckjg cts gdfj;k iq= dkfy;k esjs ikl vk;k og cryk;k fd xVw iq= eksxth us ikfu dk Hkjk gqvk ?kM+k je.kyky ds cPps fgrs"k ds mij Qsd fn;k ftlls ogk ej x;k gS A bl ij esa dkdk je.kyky firk dkfy;k ds edku ij x;k ogk ij dkfQ yksx b[kVs gksdj jksuk fiVuk dj jgs Fks iqlus ij esjh dkdh gqjt us crk;k fd djhc ,d lky ls xVq iq= eksxth o mlds ifjokj okys tcju gekjs edku ds ijlky esa gksdj vkrs tkrs gSA og jkLrk cukrs gSA euk djus ij ufga ekurs gSA vk;s fnu txM+k djrs gSA buds vkus tkus dk vyx jkLrk gksrs gq, Hkh ml jkLrs ls ufga tkrs gSA

[2025:RJ-JD:36096-DB] (5 of 18) [CRLA-717/2001]

bl juthl dks ysdj vkt esa dfjc ckjkg cts fnu esjs edku fd ijlky esa ysVh gqbZ esjs csVs fgrs"k dks cksck lqxk jgh Fkh fd xVq uy ls ikuh dk ?kM+k Hkjdj ysdj vk;k o ek¡ cfgu dh xkfy;k nsrk gqvk dsgus yxk fd rq gedks bl jkLrs ls ufg tkus nsrh gSA blfy, vkt esa rsjs dks o rsjs cPps dks ikuh dk Hkjk gqvk ?kM+k ekFks ij iVd dj ekj Mkyrk gq¡ ;g dgrs gq, xVq us mlds ekFks dk ?kM+k ikuh ls Hkjk gqvk dks nksuks gkFkks ls mij mBk dj tksj ls ge ij iVdk es lksbZ gqbZ ,d rjQ [khpd xbZ og ?kM+k esjs cPps fgrs"k dks pkrh ij ekjk ftlls og ej x;k es fpykbZ rks xVq ?kM+k ysdj Hkkx x;k eksds ij cfn;k Hkh ns[k jgk Fkk gYyk gksus ij dbZ yksx vk x;s] bl ij es o QqypUn Fkkus ij fjiksVZ djus vk;s gSA dk;Zokgh djkos o ykl ekSds ij iM+h gSA ,&ef.kyk y&ch lh&dk;Zokgh iqfgyl ih-,l- vkliqj

1-5-99 le; 5 ih-,e-

¼1½ ;g fyf[kr fjiksVZ Jh e.khyky iq= /kqfy;k tkrh ljxMk mez 35 lky is"kk etnqjh fuoklh NksVk cksMhxkek us gkthj Fkkuk gksdj is"k dh ,lMh e.khyky ¼2½ etewu fjiksVZ ls ekeyk vijk/k /kkjk 302 vkbZ-ih-lh- dk odwos esa vkuk ik;k tkus ls eq-u- 65@99 tweZ lnj es dk;e dj rQrh"k eu ,l-,p-vks- us "kq: dh tkdj ,l-vkj- fu;ekuqlkj tkjh dh xbZA ¼3½ udy izfr izkFkhZ dks fu%"kqYd nh xbZA ,lMh ih-,l- vkliqj&Mh ,&ef.kyky&ch "

5. On the said written report, police registered FIR No.65/1999

at P.S. Aaspur, District Dungarpur for the offence under Section

302 IPC. After complete investigating, charge-sheet was filed on

31.5.1999. The learned trial court framed charge. The accused-

appellant denied the same and claimed for trial. The prosecution

produced 07 witnesses in evidence, namely, PW-1 Dr. Laxman

Singh, PW-2 Hakaria, PW-3 Phoolchand, PW-4 Smt. Sooraj, PW-5

Manilal, PW-6 Ramanlal and PW-7 Mohammad Rafiq. In

[2025:RJ-JD:36096-DB] (6 of 18) [CRLA-717/2001]

documentary evidence, 05 documents were exhibited from

prosecution side, namely, Exhibit-P/1 Post Mortem Report,

Exhibit-P/2 Panchayatnama Dead-body Hitesh, Exhibit-P/3 Site

Inspection Report & Site map, Exhibit-P/4 Report to SHO and

Exhibit-P/5 FIR.

6. No witness was produced in defence and no documentary

evidence was led.

7. The learned trial court after considering the statements of

seven witnesses as produced by the prosecution and the

documentary evidence, proceeded to convicted the accused-

appellant for the offence under Section 302 IPC with punishment

of life imprisonment and a fine of Rs.1000/-.

8. Learned counsel for the appellant by way of filing the present

appeal seriously questioned the manner in which the trial court

has acted and passed punishment of life imprisonment against

accused for alleged offence of 302 IPC without even considering

the fact that not a single witness by way of his statement was

able to point out towards the guilt of the accused. Further, mother

of deceased child herself failed to support the story of prosecution

as she made contradictory statements about the alleged incident.

9. Learned counsel further submitted that the complainant i.e.

PW-5 Manilal, relative of mother of deceased child, is not an eye-

witness as he made the complaint on the basis of what he heard

from Hakaria. The statement as recorded by the trial court of

PW-5 shows that he is not an eye-witness and, therefore, his

statements are not sufficient to convict the appellant for a serious

offence of 302 IPC.

[2025:RJ-JD:36096-DB] (7 of 18) [CRLA-717/2001]

10. Learned counsel further submitted that the mother of

deceased child, namely, Smt. Sooraj, whose statements were

recorded by the trial court as PW-4 failed to support the story of

prosecution. At the time of alleged incident, as per her statement,

she was sleeping with her child and in sleeping condition she was

feeding him. According to PW-5 Manilal, PW-4 Smt. Sooraj

informed him that accused tried to hit her but as she shifted

herself from the place so that the pot hit the child. In her cross-

examination, PW-4 stated that there was no dispute in

respect of way, which demolishes the story of the

prosecution, as there was no motive with the appellant to

commit the alleged offence.

11. Learned counsel took us to the statement of PW-6 Ramanlal

(father of deceased child & husband of PW-4 Smt. Sooraj), who

was also informed about the incident by one Kankoo, who further

informed to PW-6 that the accused-appellant killed the child by

throwing water-pot on him. The prosecution, though, relied upon

the statement of PW-6 Ramanlal, who further stated that he was

informed about the incident by Kankoo, but the prosecution did

not produce Kankoo as a witness.

12. Learned counsel further pointed out that the written report

was made by Manilal, whose statements were recorded as PW-5.

He took us to the written report, which is Exhibit-P/4. The counsel

pointed out that PW-5 stated that he was informed about the

incident by one Hakaria S/o. Kalia, whose statements were

recorded by the trial court as PW-2. According to learned counsel,

the statement of Hakaria as recorded by trial court as PW-2

nowhere points out towards the guilt of the accused and further

[2025:RJ-JD:36096-DB] (8 of 18) [CRLA-717/2001]

the statement do not appears to be incriminating to the appellant.

According to PW-2 he was informed about the incident by mother

of deceased i.e. PW-4. While pointing out serious illegality

committed by learned trial court in convicting the appellant for the

serious offence of 302 IPC, learned counsel submitted that

Hakaria (PW-2) in his cross-examination specifically stated

that PW-4 Smt. Sooraj, who is the mother of deceased

child, did not inform him anything.

13. Learned counsel Mr. Jitendra Singh Champawat submitted

that the complete evidence as recorded by trial court of the

material witnesses, namely, PW-2 Hakaria, PW-4 Smt. Sooraj

(mother of the deceased child), PW-5 Manilal (the complainant)

and PW-6 Ramanlal (father of the deceased-child) nowhere in

their statements were able to prove guilt of accused-appellant and

further their evidence was not sufficient for convicting the

appellant. After pointing out serious contradictions and infirmities

in the statements of material witnesses, counsel took us to the

judgment of trial court dated 14.9.2001.

14 Learned counsel for the appellant also pointed out that as per

PW-4 Smt. Sooraj, the accused left the metal water-pot on the

spot, however, as per the recovery memo, the water-pots were

recovered from the house of appellant and that too after a delay

of more than 06 days. The accused was arrested on 06.5.1999

though he was named in written report lodged by PW-5. The FIR

of the incident was lodged on 01.5.1999 but surprisingly the

recovery was made after 06 days. According to the learned

counsel, there is no justification for a delay of 06 days and,

therefore, the recovery is doubtful and is sufficient to show that

[2025:RJ-JD:36096-DB] (9 of 18) [CRLA-717/2001]

the learned trial court committed a serious mistake while

convicting the appellant for the offence under Section 302 IPC.

15. Counsel submitted that the learned trial court failed to

appreciate the evidence properly and without there being any

cogent evidence which could prove guilt of the accused-appellant,

committed serious mistake by passing an un-reasoned judgment

of conviction.

16. Learned Public Prosecutor Mr. Vikram Singh Rajpurohit

supported the judgment passed by trial court and according to

him the learned trial court has not committed any mistake while

passing the judgment of conviction of the appellant as the

appellant by throwing water-pot on the deceased minor child, who

was just two year's old, killed him and, therefore, he was rightly

punished for the offence under Section 302 IPC by imprisonment

for life.

17. After hearing learned counsel for the parties and perusing

record of trial court, this Court noted that the written report

Exhibit-P/4 dated 01.5.1999 was lodged by PW-5 Manilal as he

was informed by Hakaria about the incident. He returned home

around 12 pm (noon) where he heard her aunt ('Kaki') Smt.

Sooraj PW-5 crying and shouting that her child died as a water-

pot was thrown on him by accused Gattu. The statement of PW-5

Manilal, who is the complainant in this case, are re-produced as

under :-

" xokg lwjt esjh dkdh gksrh gSA lky Hkj igys dh ckr gS] eSa fnu ds 12 cts

VªsDVj dk Vk;j dk iapj Bhd djkus x;k Fkk] nksigj esa 12 cts eSa ?kj ij okil vk;k rc lqjt fpYyk jgh Fkh fd esjk Nksjk ej x;k] bl ij eSa lwjt ds ?kj x;k vkSj cPps dks ysdj gksLihVy x;k rks MkDVj us dgk fd cPpk ej x;k gS A fQj eSa

[2025:RJ-JD:36096-DB] (10 of 18) [CRLA-717/2001]

Fkkus esa x;k vkSj fjiksVZ iz-ih- 4 dh] bl ij , ls ch esjs gLrk{kj gSA psd iz-ih- 5 ij , ls ch gLrk{kj esjs gSA lwjt us crk;k fd eSa cPps dks ysdj lks jgh Fkh rc xVw dk xMk cPps ij fxj x;k FkkA gekjs o eqyfte ds chp dksbZ >xM+k ugha g S] ysfdu lwjt ds <kfy;s ls dksbZ jkLrk ugha gSA iqfyl eksds ij vk;h Fkh vkSj yk"k dk iapukek iz-ih- 2 cuk;k Fkk ftl ij lh ls Mh gLrk{kj esjs gSA QnZ iz-ih- 3 eksdk gS ftl ij Hkh ls lh ls Mh esjs gLrk{kj gSA XXXftjgXXX

eSa VsDVj dk iadpj Bhd djk dj vk jgk Fkk rc jkLrs esa yksxks us dgk fd cPps dks ekj fn;k gS rc eSa eksds ij x;k FkkA ;g lgh gS fd xVw Bksdj [kk x;k ftlls ikuh dk xMk fxj x;k] fQj dgk fd tkucq>dj xMk fxjk fn;k FkkA @@@iqu% ifj{k.k@@@ dqN ughaA

18. The statement of PW-5 shows that he was informed by

mother of deceased child i.e. PW-4, who informed to him that

while she was sleeping with the child, at that time, water-pot of

accused-Gattu fell on the child. This Court noted that in

cross-examination PW-5 states that it is correct that the

accused-Gattu fell down due to which the water-pot slipped

on the child, however, he by improving his statement

immediately states that it was intentionally done by the

appellant. PW-5 is not an eye-witness and he lodged the written

report only on the basis of what was stated/informed to him, as

per complaint, by Hakaria and as per statement recorded by

learned trial court, by PW-4 Smt. Sooraj, therefore, he is not an

eye-witness of the incident and there are material contradictions

in his statement about the incident.

19. PW-4 is the mother of the deceased child, therefore, her

statements are relevant and the same are re-produced as under :-

[2025:RJ-JD:36096-DB] (11 of 18) [CRLA-717/2001]

"fgrs"k esjk yMdk Fkk] mldh vk;q 2 lky dh FkhA lky Hkj igys fnu ds 12 cts dh ckr gS] eSa fgrs"k ds lkFk ?kj ds <kfy;s esa lks;h gq;h FkhA xVw eqyfte gkftj vnkyr ogka vk;k vkSj mlus ikuh ls Hkjk xMk esjs cPps ij fxjk fn;k rks eSa tkxh rks ns[kk fd eqyfte ogka ls Hkkx dj tk jgk FkkA xMk fgrs"k ds isV ij yxk ftlls mldh rRdky gh ekSr gks xbZA eqy- ls gekjk dksbZ >xM+k ugha Fkk] ysfdu ikuh ysus ds fy;s esjs vkaxu ls gksdj tk jgk Fkk rks eSus ;gka ls tkus ds fy;s euk fd;k FkkA xokg gdfj;k Hkh ml le; ogka ekstqn FkA ckn esa iqfyl esa fjiksVZ djk;h FkhA xMs nks Fks tks ihry ds FksA xMs eksds ij gh iMs jgs Fks tks ckn esa iqfyl okys ys x;s FksA XXXftjgXXX

gekjs jkLrs dk dksbZ >xMk ugha FkkA ;g xyr gS fd esjk yMdk chekj gksA ;g xyr gS fd xMk eqyfte ds flj ij gks vkSj Bksdj yxus ls fxj iMs gksA @@@iqu% ifj{k.k@@@ dqN ughaA

20. The above statement of PW-4 shows that at the time of the

alleged incident she was sleeping and when she woke up, she saw

the appellant running away from the place. Most importantly she

states that there is no dispute with the accused-appellant. By her

statement she states about the presence of Hakaria, whose

evidence was recorded by the learned trial court as PW-2.

According to PW-4 there were two pots of Brass ('Peetal') on the

spot, which were taken away by the police later on. The

statement of PW-4 is important as she specifically states in her

cross-examination that there was no dispute with the accused in

respect of the way and on the basis of above, this Court finds that

there was no motive for the appellant to commit the alleged

offence.

21. We have also perused statement of father of the deceased-

child i.e. Ramanlal (PW-6), who was also not present at the time

of incident but made his statement on the basis of the information

given by to him by one Kankoo. However, Kankoo, a female,

[2025:RJ-JD:36096-DB] (12 of 18) [CRLA-717/2001]

was not produced in evidence by the prosecution to support

the version of PW-6. Most importantly and surprisingly

PW-6 states that he was not informed anything by his wife

i.e. PW-4 Smt. Sooraj. It is surprising that PW-4 and PW-6,

who are husband and wife despite that PW-4 did not inform

anything to PW-6, which clearly cast serious doubt towards

the version of the incident as narrated by PW-4. When

husband and wife i.e. PW-6 and PW-4 had lost their child, have no

communication with each other in respect of incident leads to the

conclusion that the appellant-accused was not connected with the

incident. The statement of PW-6 Ramanlal is as under :-

"xokg lwjt esjh iRuh gS rFkk fgrs"k esjk csVk FkkA lky Hkj igys dh ckr gS] eSa

xkao esa gh dke ij x;k gqvk Fkk] ?kj ij esjh iRuh lwjt o csVk fgrs"k FkkA ml le; eqy- xVw dh HkkHkh dadw esjs ikl vk;h vkSj crk;k fd esjs nsoj xVw us rqEgkjs cPps ij xMk fxjk dj ekj fn;k gS pyksA bl ij eSa ?kj ij vk;k esjs vkus ls igys dh e`rd dks gksLihVy ys x;s FksA ogka gksLihVy esa MkDVj us crk;k fd bldh e`R;q gks pqdh gSA esjh iRuh us eq>s dqN ugha crk;kA XXXXftjg XXXX

esjs o eqyfte ds chp jkLrs dk >xMk FkkA ?kVuk ds igys jkst geus mls gekjs vkaxu ls gksdj tkus ls jksdk Fkk] esjk o eqyfte dk edku ikl ikl gSA gekjk jkLrk ,d gh gS fQj dgk vyx vyx gSA eqy- xVw esjs dkdk dk yMdk gSA ;g xyr gS fd xVw Bksdj [kkdj fxj x;k gks ftlls xMk cPps ij fxj x;k gksA @@@iqu% ifj{k.k@@@ dqN ughaA

22. A very interesting fact as noted by this Court from the cross-

examinations of PW-4 and PW-6 is that PW-4 states that there is

no dispute in respect of way with the accused, whereas PW-6

states that there is a dispute with the accused in respect of the

way. This shows serious contradiction in the cross-examination of

the two material witnesses, who are parents of the deceased child

[2025:RJ-JD:36096-DB] (13 of 18) [CRLA-717/2001]

and this serious contradiction is sufficient enough to disbelieve the

story of prosecution.

23. Last but not the least, we have also gone through the

statement of PW-2 Hakaria, who is stated to have witnessed the

incident as per PW-4, Smt. Sooraj. PW-4 stated that the witness

Hakaria was present at the time of the incident. The statement of

PW-2 Hakaria is re-produced as under :-

" eS lwjt o mlds yMds fgrs'k dks tkurk gw¡A djhc lky Hkj igys dh ckr gSA

fnu ds 12 cts eS fyeth ds ?kj [kkuk cuk jgk FkkA xVw rc vius flj ij ikuh dk eVdk ys tk jgk FkkA ckn esa D;k gqvk irk ughA lwjt fpYyk;h dh mldk cPpk ej x;k rc eS ogk x;kA cPpk lwjt dh xksn esa Fkk o ikl esa xMk iM+k gqvk FkkA lwjt us dgk fd xVw us yMds dks ekj fn;k gSA xVw o lwjt ds chp iwjkuk >xMk FkkA eSus e.khyky dks tkdj ;g ckr ugh crk;hA cfn;k ?kVuk ds oDr ekStwn FkkA XXXXXX ftjg odhy eqyfte

eS lwtj ds ?kj ds ikl igwpk rc xVw ogk [kMk Fkk ckn esa pyk x;k FkkA ;g xyr gS fd eSus xVVw dks xMk ys tkrs gq, ugh ns[kk gksA lwjt us eq>s dqN ugh crk;kA XXXXXX iwu% ifj{k.k "kqU;A

24. A perusal of the statements of PW-2 Hakaria shows that

PW-4 Smt. Sooraj did not inform him anything. According to him

when PW-4 shouted that her child has died, then he reached to

the spot. On reaching the spot he noticed that the child was lying

in the lap of his mother i.e. PW-4. PW-2 further states that he

was informed by Smt. Sooraj that appellant killed her child. The

interesting fact which this Court has noted is that PW-2, has

stated that he did not inform anything about the incident to PW-5

Manilal, who is first informant and who lodged the written report

on the information of PW-2 Hakaria.

[2025:RJ-JD:36096-DB] (14 of 18) [CRLA-717/2001]

25. The statements as re-produced above, on the basis of which

learned trial court recorded judgment of conviction, clearly shows

that the witness i.e. PW-5, PW-4, PW-6 and PW-2 failed to prove

by their evidence that it was the appellant who committed the

alleged offence and further this Court noted that the witnesses

were unsuccessful in pointing out guilt of the accused as none of

them were the eye-witness of the incident and further they were

not able to state in specific and clear words that the accused had

any motive to cause the alleged incident and further the accused

was present and he intentionally threw the metal water-pot on the

on the child, on account of which, he died. More so, PW-4 and

PW-6 gave disputed evidence regarding their dispute of way with

the appellant. On the basis of above discussion, this Court has

reached to the conclusion that there was no motive available with

the appellant to commit the serious offence under Section 302

IPC.

26. This Court is not satisfied with the statements of all the

witnesses as mentioned above as none of the witness has been

able to prove the story of prosecution beyond reasonable doubt

which could be sufficient to convict the accused-appellant for the

offence under Section 302 IPC. The complainant PW-5 Manilal in

his cross-examination first stated that the appellant-Gattu slipped

on the spot, on account of which, the water-pot fall. However, in

the subsequent line he improved the story by stating that it was

intentional. This Court, noted from evidence on record, that once

PW-5, who is not an eye-witness, then he had no basis to state

that the appellant caused the incident intentionally.

[2025:RJ-JD:36096-DB] (15 of 18) [CRLA-717/2001]

27. After examination of evidence, we have gone through the

judgment passed by learned trial court dated 14.9.2001. The

learned trial court after discussing the evidence in detail has

recorded its findings in para-13, 14 & 16, which are being re-

produced as under :-

"13- mijksDr xokgku ds c;kuksa dk foospu fd;k x;kA xokg Jherh lwjt ihMCY;w&4 e`rd dh ekrk gS tks vius nq/kihrs cPps dks xksn esa ysdj Lruiku djk jgh Fkh rc eqyfte us ikuh ls Hkjk gqvk ihry dk ?kM+k ckyd fgrs'k mez djhc Ms<+ o'kZ dh Nkrh ij iVd fn;k ftlls mldh ekSds ij gh e`R;q gks xbZA lk{kh Jherh lwjt ihMCY;w&4 tks fd e`rd fgrs'k dh ekrk gS ds dFkuks dh iqf'V vU; izR;{kn"khZ lk{kh Jh gdfj;k eh.kk ihMCY;w&2 ds dFkuksa ls gksrh gS ftlus vius vfFkdFku esa ;g Li'V :i ls dFku fd;k gS fd ?kVuk ds fnu djhc 12 cts tc og fyeth ds ?kj [kkuk cuk jgk Fkk rc vfHk;qDr xVq vius flj ij ikuh dk ?kM+k ysdj tk jgk FkkA Jherh lwjt ds fpYykus dh vkokt fd mldk cPpk ej x;k] og rqjar ÄVukLFky ij igwpk ogka e`rd cPpk Jherh lwjt dh xksn esa Fkk vkSj ikl esa gh xVq [kM+k gqvk Fkk rFkk ikuh dk ?kM+k Hkh ogha iM+k gqvk FkkA vfHk;qDr xVq o lwjt ds chp iwjkuk >xM+k Hkh gSA Jherh lwjt ds dFkuksa dh iqf'V vU; lk{kh ef.kyky Qfj;knh ihMCY;w&5 ds dFkuksa ls Hkh gksrh gS ftlus ?kVuk ds fnu Jherh lwjt ds fpYykus dh vkokt fd mldk Nksjk ej x;k gS] rqjUr ekSds ij igq¡pkA ogka ls mlds cPps fgrs"k dks rqjar vLirky igw¡pk;k vkSj tgka MkWDVj }kjk dguk fd cPps dh e`R;q gks xbZ gS] vius dFku esa vfHkdFku fd;k gSA bl lk{kh us vius dFku esa Jherh lwjt ihMCY;w&4 ds dFku dh Li'V :i ls iqf'V dh gSA e`rd fgrs'k ds firk ,oa Jherh lwjt ds ifr Jh je.kyky ds dFku ls Hkh vfHk;kstu i{k }kjk crk;s x;s rF;ksa dh iqf'V gksrh gSA je.kyky us Hkh vius dFku esa vfHkdFku fd;k gS fd ?kVuk ds fnu tc og xkao esa vius dke ij x;k gqvk Fkk rc ?kj esa mldh iRuh lwjt o csVk fgrs'k ekStwn FksA ml fnu vfHk;qDr xVq dh HkkHkh dadq mlds ikl vkbZ vkSj crk;k fd mlds nsoj xVq us rqEgkjs cPps ij ?kM+k fxjkdj ekj fn;k gS] rks pyksA bl ij og rqjar igw¡pk ysfdu mlds igw¡pus ds iwoZ gh mlds cPps dks vLirky ys x;s tgka MkWDVj lkgc us crk;k fd mldh e`R;q gks xbZ gSA bl lk{kh je.kyky ihMCY;w&6 us viuh izfr ijh{kk esa Hkh ;g Lohdkj fd;k gS fd bl vfHk;qDr xVq ds rFkk mlds chp jkLrs dk >xM+k FkkA ?kVuk ds ,d jkst iwoZ mlus vfHk;qDr xVq dks muds vkaxu esa ls gksdj tkus ls jksdk FkkA mudk o eqyfte xVq dk edku ikl&ikl gSA

[2025:RJ-JD:36096-DB] (16 of 18) [CRLA-717/2001]

14- bl izdkj vfHk;kstu i{k }kjk izLrqr lHkh lk{khx.k Li'V :i ls ,d nwljs ds dFkuksa dh iqf'V djrs gSa rFkk muds dFkuksa dh izFke lwpuk fjiksVZ izn"kZ ih&5 ls Hkh iqf'V gksrh gSA xokgku ds c;kuksa esa ,slk dksbZ fojks/kkHkkl Hkh ugh gS fd ftlds vk/kkj ij vfHk;kstu i{k dh dgkuh dks vfo"oluh; vFkok vlR; ekuk tkosA vfHk;kstu i{k }kjk izLrqr lk{khx.k ds dFkuksa ds nkSjku izfrijh{kk esa Hkh cpko i{k ,slk dksbZ rF; izekf.kr djus esa lQy ugh gqvk gS ftlds vk/kkj ij vfHk;kstu i{k }kjk crk;h x;h dgkuh vfo"oluh; vFkok cukoVh gksuk ekuh tkosA 16- vr% vfHk;kstu i{k }kjk izLrqr ekSf[kd ,oa izys[kh; lk{; ds vk/kkj ij vfHk;kstu i{k ;g izekf.kr djus esa lQy jgk gS fd ?kVuk ds fnu Jherh lwjt tc vius edku dh iM+lky esa vius djhc Ms<+ lky ds cPps fgrs"k dks Lruiku djk jgh Fkh rc vfHk;qDr xVq us vkilh jaft"k dh otg ls mlds cPps fgrs"k ij ihry dk ?kM+k ikuh ls Hkjk gqvk mlds cPps ij Qsadk tks mlds yxk vkSj ftlds QyLo:i mlds pksVs igw¡ph vkSj mlh dkj.k mldh ?kVukLFky ij gh e`R;q gks xbZA vfHk;kstu i{k }kjk izLrqr lk{khx.k ds dFkuksa ls ;g Hkh izekf.kr gS fd Jherh lwjt o mlds ifr je.kyky rFkk vfHk;qDr xVq ds e/; jkLrs dk >xM+k Fkk vkSj mlh jaft"k dh otg ls vfHk;qDr xVq us ?kVuk ds fnu Jherh lwjt tc vius cPps dks Lruiku djk jgh Fkh rc mlds cPps dh e`R;q dkfjr djus ds vk"k; ls ml ij ikuh ls Hkjk gqvk ?kM+k Qsad fn;k ftlls fd ?kVukLFky ij gh cPps fgrs'k dh e`R;q gks xbZA e`rd fgrs'k dh "koijh{k.k fjiksVZ izn"kZ ih&1 rFkk MkW0 y{e.kflag ihMCY;w&1 ds dFkuksa ls Hkh ;g Li'V izekf.kr gS fd mlds "kjhj ij vkbZ gqbZ pksVksa ds dkj.k gh mldh e`R;q gqbZ FkhA "

28. We have gone through the judgment of trial court and we

find no satisfactory finding in respect of the alleged recovery of

two metal water-pots. We have no hesitation in recording serious

observation that the trial court failed to record any finding in

regard to recovery of metal pots, by which the alleged injury was

caused to deceased-child, which was as per the recovery memo

made after 06 days. It is a serious mistake committed by the trial

court while recording finding of conviction of the appellant.

29. This Court has noted that the learned trial court in para-13,

14 & 16 of the judgment dated 14.9.2001 failed to record any

[2025:RJ-JD:36096-DB] (17 of 18) [CRLA-717/2001]

specific finding to convict the appellant for the offence under

Section 302 IPC.

30. The learned trial court in a casual manner and that too in a

sessions trial case recorded its finding by taking the selected

version of the witnesses, while completely ignoring the serious

contradictions in their statements made before the trial court and

also in written report lodged by PW-5.

31. We fail to find any reasoning as noticed by us in the above

paras in the judgment of the trial court dated 14.9.2001. It is the

duty of the trial court to examine the evidence minutely before

passing the judgment of conviction. There is no discussion in

para-13, 14 & 16 about any contradictions and infirmities in the

statements of material witnesses and further not a single witness

can be stated to be an eye-witness and most importantly the

complete version as stated by all the witnesses including what

has been tried to present by the prosecution is missing in the

findings recorded by the trial court. We fail to find any motive

with the accused-appellant, on the basis of the serious

contradictions noted in the statements of material witnesses

quoted in above paras so as to convict the appellant for the

offence under Section 302 IPC.

32. After considering record of trial court, submissions of the

learned counsel for the parties, minute examination of statements

of all material witnesses and the serious contradictions in their

statements, this Court finds that the learned trial court committed

a serious mistake while passing the judgment of conviction dated

14.9.2001.

[2025:RJ-JD:36096-DB] (18 of 18) [CRLA-717/2001]

33. For the reasons as discussed in the aforementioned paras,

the present appeals are allowed. The judgment of conviction and

sentence dated 14.9.2001 passed by Shri Goverdhan Singh

Surana, RHJS, learned Sessions Judge, Doongarpur in Sessions

Case No.57/99, is quashed and set aside.

34. The appellant is already on bail. His bail-bonds stands

discharged. The record of trial court be sent back forthwith.

35. Keeping in view the provision of Section 437-A Cr.P.C./481

B.N.S.S, accused-appellant is directed to furnish a personal bond

in a sum of Rs. 25,000/- and a surety bond of the like amount,

before the learned trial court, which shall be made effective for a

period of six months, to the effect that in the event of filing of

Special Leave Petition against this judgment or for grant of leave,

the accused-appellant, on receipt of notice thereof, shall appear

before the Hon'ble Supreme Court as soon as he would be called

upon to do so.

                                   (RAVI CHIRANIA),J                                   (MANOJ KUMAR GARG),J
                                    19-20 Sanjay Singh









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