Gurdev Singh @ Gendu vs State (2025:Rj-Jd:39580-Db)
2025 Latest Caselaw 12753 Raj

Rajasthan High Court - Jodhpur

Gurdev Singh @ Gendu vs State (2025:Rj-Jd:39580-Db) on 8 September, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:39580-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 335/2016

Gurdev Singh @ Gendu S/o Pal Singh R/o 18 GB, Police Station
Srivijaynagar, Tehsil Srivijaynagar, District Sriganganagar.
(Lodged in Central Jail, Shriganganagar)
                                                                      ----Appellant
                                       Versus
State
                                                                    ----Respondent


For Appellant(s)             :     Mr. Bhawani Singh Tanwar, Amicus
                                   Curiae.
For Respondent(s)            :     Mr. Sharwan Singh Rathore, PP


         HON'BLE MR. JUSTICE MANOJ KUMAR GARG
              HON'BLE MR. JUSTICE RAVI CHIRANIA
                          JUDGMENT

Reserved on: 26.08.2025.

Pronounced on: 08.09.2025 PER HON'BLE MR. RAVI CHIRANIA, J

1. As the present criminal appeal preferred by the appellant-

Gurdev Singh @ Gendu through jail and therefore, the Coordinate

Bench of this Court by order dated 16.05.2016 appointed Mr.

Bhawani Singh Tanwar as Amicus Curiae. The appeal is against

the judgment dated 26.06.2015 passed by learned Additional

District Judge, Raisingh Nagar, Sriganganagar in Sessions Case

No. 09/2014 for the offence under Section 302 of IPC, whereby

learned court below punished the appellant with imprisonment for

life and fine of Rs. 20,000/-. In the event of non-payment of fine,

he will undergo six months rigorous imprisonment. The facts as

noted from the record of the case are that a written report was

lodged by one Ranjeet Singh on 16.07.2014, Exhibit P-1, by which

he informed police that the accused killed his father-Roop Singh

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by beating with fists and strangulation. The report Exhibit P-1

dated 16.07.2014 is reproduced as under:-

^^fuosnu gS fd izkFkhZ j.kthr flag iq= :iflag tkfr fNEik fuoklh 18 th ch dk gSA vkSj izkFkhZ yqf/k;kuk esa [kjkn dk dke djrk gSA ogh ij jgrk gSA izkFkhZ ds firk :iflag Hkh izkFkhZ ds lkFk gh yqf/k;kuk jgrs FksA tks vDlj xkao 18 th ch esa vkrs tkrs jgrs FksA izkFkhZ ds firk djhc 1 ekg igys ;g dg dj yqf/k;kuk ls xkao 18 th ch vk;s Fks fd isUlu feyuh gSA rc ls 18 th ch esa gh jg jgs FksA dy fnukad 15@07@14 dks izkFkhZ dk ppsjk HkkbZ m/ke flag us Qksu djds dgk dh rsjs ikik dh ekSr gks xbZ gSA vki xkao tYnh vk tkvks rc eS yqf/k;kuk ls jokuk gksdj 18 th ch gekjs ?kj vk;k esjs ls igys esjh cgu tlfoUnz dkSj o esjk thtk tlohj flag gekjs ?kj vk;s gq, FksA eSus vkdj irk fd;k rks esjh pkph y{eh nsoh eq>s crk;k fd vki ds ikik vkSj xqjnso flag dy lqcg ds lkFk esa cSBs ?kj ij [kk ih jgs FksA blds ckn nksigj dks xqjnso flag us izkFkhZ ds firk :iflag dks FkIiM+ eqDdksa rFkk dksguh dh pksVs ekjdj o xyk nckdj tku ls ekj fn;kA fjiksVZ nsrk gwW dk;Zokgh dh tkosA**

On the said report, the police registered an FIR bearing No.

193/2014 dated 16.07.2014 for offence under Section 302 IPC

against the accused-appellant. After conducting the investigation

the police filed the charge-sheet. The learned trial court framed

the charges which the accused-appellant denied and to prove its

case, prosecution produced 11 witnesses in evidence and in

documentary evidence 11 documents were exhibited. The

statement of the accused-appellant was recorded under Section

313 Cr.P.C. by the trial court in defence and statement of DW-1

Attar Singh were recorded in defence by the trial court. The

learned trial court after considering the entire evidence and the

documentary evidence as exhibited, passed the judgment of

conviction dated 25.06.2015, whereby the accused-appellant was

convicted for offence under Section 302 IPC with punishment for

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imprisonment for life and fine of Rs. 20,000/-. As the present

appeal filed by the appellant through jail, therefore, there are no

specific grounds on record to challenge the judgment.

The learned Amicus Curiae prays to make oral submission in

the case on the basis of record of the learned trial court. The

learned Amicus Curiae, Mr. Bhawani Singh Tanwar, submitted that

a perusal of a hand written report, Exhibit P-1 dated 16.07.2014

as lodged by Ranjeet Singh, PW-1, shows that he is not an eye-

witness of the incident and, he was informed about the incident by

his cousin brother namely Udham Singh telephonically. According

to leanred Amicus Curiae, the incident occurred at 09:30 a.m.

however, the FIR was lodged with the delay of almost 24

hours by the complainant by its written report dated

16.07.2014. There is no proper justification in the entire record

of the learned trial court including the statement of eye-witnesses

and the judgment of the learned trial court dated 25.06.2015

about the delay of 24 hours as occurred in lodging of the FIR. The

leanred Amicus Curiae submitted that the incident was informed

to the complainant Ranjeet Singh on 15.07.2014, PW-1, by his

cousin brother Udham Singh, but informant Udham Singh was

not presented as witness by the prosecution for evidence

which cast a serious doubt about the version as reported by

the complainant with the delay of 24 hours to the police.

2. According to learned Amicus Curiae, no such incident actually

occurred on 15.07.2014, otherwise the so called alleged eye-

witnesses namely PW-2 Laxmi Devi, PW-3 Kirandeep Kaur

and PW-4 Lovepreet, would have immediately called the

police and reported the incident, this delay is serious and fatal

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to the story of the prosecution. More so for the reason that as per

the complainant his father was murdered on 15.07.2014 itself

however, no one in the family including the eye-witnesses cared

to report the incident to police. According to learned counsel Mr.

BS Tanwar, the basic foundation itself of the prosecution story is

weak and cannot be believed and therefore, the learned trial court

committed a serious mistake by passing impugned judgment

dated 25.06.2015. According to learned Amicus Curiae, the

learned trial court for convicting the accused-appellant relied upon

the statement of PW-1 Ranjeet Singh (complainant), PW-2 Laxmi

Devi (wife of the deceased), PW-3 Kirandep Kaur (minor daughter

of the deceased, aged about 11 years) and PW-4 Lovepreet (grand

daughter of the deceased, aged about 9 years), he therefore, first

refer to the statement of above witnesses which according to the

prosecution proved its story and their evidence were treated as

substantial for convicting the appellant for offence under Section

302 IPC. The statement of PW-1, PW-2 and two child witnesses

namely PW-3 Kirandeep Kaur and PW-4 Lovepreet are reproduced

as under:-

"ihMCY;w&01 j.kthr flag esjs firk :i flag esjs lkFk yqf/k;kuk ¼iatkc½ esa jgrs FksA vkSj gekjs pd 18 th-ch- esa mudk vkuk&tkuk jgrk FkkA esjs firk th ÄVuk gksus ds djhc 1 ekg iwoZ pd 18 th-ch- esa vk x;s FksA D;ksafd mudk cq<kik isa'ku feyrh FkhA eq>s m/ke flag us Qksu fd;k fd rsjs ikik dh e`R;q gks xbZ gS rks bl Qksu ij eSa yqf/k;kuk ls 18 th- ch- esa vk;kA ÄVuk fnukad 15-07-14 dh gS] eq>s esjh pkph y{eh nsoh us eq>s crk;k fd rsjs ikik :i flag dh gR;k xqjnso flag us Fkki eqDdks ls ekjihV dj o xyk nckdj dh gSA gR;k djus ls igys esjs firk :i flag o eqyfte xqjnso flag lkFk cSBs Fks o [kk&ih jgs FksA fQj bl ÄVuk ckcr eSaus nj[okLr çn'kZ ih- 1 Fkkuk esa is'k dh] ftl ij , ls ch nks txg esjs gLrk{kj gSaA esjs firkth dk QnZ lwjrgky yk'k o iapk;rukek Fkkusnkjth us çn'kZ ih 2 o 3 esjs lkeus rS;kj fd;k Fkk ftl ij , ls (Uploaded on 08/09/2025 at 01:03:46 PM)

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ch esjs gLrk{kj gSaA esjs firkth dh yk'k Fkkusnkjth us esjs lqiqnZ dh Fkh tks çn'kZ ih 4 gS] ftl ij , ls ch esjs gLrk{kj gSaA ÄVuk LFky dk uD'kk ekSdk çn'kZ ih 5 esjs lkeus cuk;k FkkA ftl ij , ls ch esjs gLrk{kj gSaA ;g ÄVuk esjh pkph y{eh nsoh ds tykok] yoyh o eqfYte xq#nso flag ds cPpks us ns[kh FkhA esjs thtk tlohj flag o esjh cgu tlfoUnz dkSj esjs vkus ls igys ?kj vk x;s FksA gkftj vnkyr eqfYte xqjnso flg us gh esjs firk :i flag dh xyk nckdj o ekjihV dj gR;k dh gSA ftjg }kjk odhy eqyfte%& eSa ?kVuk ds nwljs fnu 16-07-14 dks lqcg ?kVukLFky pd 18 th-ch- igqap x;k FkkA esjh cgu o thtk ?kVuk okys fnu jkr dks gh igqap x;s FksA tc rd esjh cgu o thtk igqaps rc rd esjs firk dh e`R;q gks pqdh FkhA mudks ?kVuk dk irk py x;k Fkk] ysfdu esjh cgu eqdnek ntZ djokus Fkkus ugha xbZ FkhA vt [kqn dgk fd oks esjk bartkj dj jgh FkhA esjs firk :i flag o eqyfte xqjnso flag lxs pkpk&Hkrhtk gSaA xqjnso flag o esjs ikik :i flag dh vkil esa NksVh&eksVh yM+kbZ gksrh jgrh Fkh] dksbZ jath"k ugha FkhA ftl fnu ?kVuk gqbZ ml fnu nksuksa dk u"ks esa >xM+k gqvk FkkA eq>s Qksu ij ;g ugha crk;k fd :i flag dks xqjnso flag us ekj fn;k gSA eq>s rks y{eh nsoh us crk;k FkkA y{eh nsoh o xqjnso flag dh Hkh vkil esa dksbZ jaft"k ugha gSA ?kVuk okys fnu esjs vkus ls igys iqfyl us yk"k dk dksbZ eqvk;uk ugha fd;k FkkA vt[kqn dgk fd iqfyl us esjs vkus ds ckn dk;Zokgh dh FkhA ;g ckr lgh gS fd esjs firk :i flag "kjkc ihrs FksA eSa tc vk;k rks eSaus esjs firk ds "kjhj ij pksVksa ds fu"kku ns[ks FksA esjs firk dh yk"k ij Nkrh o njnu ij uhys fu"kku FksA eSa viuh pkph y{eh nsoh ds dgs vuqlkj gh c;ku ns jgk gwaA ;g dguk xyr gS fd u"ks dh otg ls os pkjikbZ ls fxj x;s gksa] ftlls pksV yxus dh otg ls mudh e`R;q gks xbZ gksA xqjnso flag o :i flag dk vkil esa iSlksa dk dksbZ ysunsu ugha FkkA eq>s ugha irk fd xqjnso flag o :i flag dk tc "kjkc ihdj >xM+k gqvk rks xqjnso flag us esjs firk dks ekjus ds bZjkns ls pksVsa ekjh ;k ughaA ;g dguk xyr gS fd eSa eqyfte dks Qalkus ds fy;s vkt >wBs c;ku ns jgk gwaA

ihMCY;w&2 y{eh nsoh esjs ifr cyohj flag dh e`R;q vkt ls djhc 10 o'kZ iwoZ gks xbZ FkhA gkftj vnkyr eqfYte xqjnso flag esjs tsB dk yM+dk tsBwrk yxrk gSA eqfYte xqjnso flag dh iRuh bldks djhc pkj o'kZ igys NksM+ dj pyh xbZ Fkh] D;ksafd ;g nk: ihdj viuh ifruh ds lkFk ekjihV djrk FkkA blfy;s xqjnso flag ds cPps fdj.knhi dkSj o yM+dk yoyh mQZ yoizhr dh ns[kHkky eSa djrh gw¡A :i flag dh gR;k

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15&7&2014 dks gkftj vnkyr eqfYte xqjnso flag us ekjihV dj o xyk nckdj dj nh FkhA ;s nksuksa gh igys ckgj ls gh "kjkc ihdj vk;s fQj ?kj ij cSBdj "kjkc ih vkSj fQj yM+ iM+sA bl ?kVuk dks esjs vykok eqfYte xqjnso flag ds cPpksa us Hkh ns[kk FkkA eSaus eqfYte xqjnso flag dks le>k;k Fkk fd :i flag dks er ekj ij blus esjk dguk ugha ekukA gkftj vnkyr efqYte xqjnso flag us gh :i flag dh ekjihV dj o xyk nckdj gR;k dh gSA ftjg }kjk odhy eqfYte%& :i flag ges"kk ls gh "kjkc ihrk FkkA tgka ij >xM+k gqvk Fkk] os nksuksa ogha ij [kk ih jgs FksA ml fnu le; nksigj 12 ls 1 cts dk FkkA ;g ?kVuk pd 18 G.B. xkao dh gh ?kVuk gSA esjs vM+ksl&iM+ksl esa dbZ ?kj gSaA ftl le; ekjihV gks jgh Fkh] ml le; eSa vM+ksl&iM+ksl okyksa dks cqykus xbZ Fkh] ijUrq dksbZ ugha vk;kA vt[kqn dgk fd muds ?kj ij dksbZ ugha Fkk] os ckgj x;s gq, FksA :i flag o eqfYte xqjnso flag dh dksbZ jaft"k ugha FkhA esjh vkSj xqjnso flag dh vkil esa dksbZ jaft"k ugha gSA ;g dguk xyr gS fd :i flag dh T;knk "kjkc ih ysus ls o pkjikbZ ls fxjus ls e`R;q gks xbZ gksA ;g ckr lgh gS fd budk u"ks ds otg ls gh vkil esa >xM+k gqvk FkkA fdlh jaft"k dh otg ls >xM+k ugha gqvk FkkA ;g dguk xyr gS fd ftl le; >xM+k gqvk ml le; :i flag us Hkh xqjnso flag ds pksV ekjh gksA ;g dguk xyr gS fd eSa vkt jaft"k ds dkj.k xqjnso flag ds f[kykQ >wBs c;ku nsdj mls Qalk jgh gksšA

ihMCY;w&3 fdj.knhi dkSj eSa NBh d{kk esa i<+rh gw¡A ?kVuk dh jkst esjs ikik xqjnso flag o esjs nknw :i flag nksuksa lkFk cSBs [kk&ih jgs FksA ;s nksuksa uhe ds uhps cSBs FksA nksuksa gekjs ?kj ij gh cSBs FksA fQj esjs nknw :i flag dks esjs ikik xqjnso flag us ekjihV dhA esjs ikik us :i flag ds FkIiM+&eqDdh ekjh o xyk nck fn;kA xyk nckus ls esjs nknw :i flag dh e`R;q gks xbZA eqfYte xqjnso flag esjs ikik gSaA tks gkftj vnkyr gSA blus gh ?kVuk dh jkst esjs nknw :i flag ds lkFk ekjihV djus o xyk nckdj ekjkA ftjg }kjk odhy eqfYte %& ;g dguk xyr gS fd eSus uk ns[kk gks vkSj eq>s y{eh us crk;k gksA vt[kqn dgk fd eSus ?kVuk Lo;a ns[kh gSA ;g dguk xyr gS fd eSa Vh-oh- ns[k jgh gksÅ¡ vkSj eSus ?kVuk viuh vk¡[kksa ls uk ns[kh gksA eq>s ;g irk gS fd nksuksa us vkil esa nk: ihdj >xM+k fd;k FkkA :i flag o xqjnso flag dks eSus bl ?kVuk ls igys yM+rs gq, ugha ns[kkA ;g dguk xyr gS fd vkt eSa fdlh ds cgdkos esa vkdj >wBs c;ku ns jgh gw¡A

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ihMCY;w&4 yoizhr ?kVuk vkt ls djhc N% eghus igys dh gSA ?kVuk dh jkst esjs ikik gkftj vnkyr eqfYte xqjnso flag esjs nknw :i flag dks ekjk gSA esjs ikik us mudks eqDdksa ls ekjihV dh FkhA vkSj blds ekjihV djus ls esjk nknw :i flag ej x;k FkkA ;g ?kVuk eSus vkSj esjh cgu o y{eh ckbZ us ns[kh gSA

ftjg }kjk odhy eqfYte %& ;g ckr lgh gS fd tc ?kVuk gks jgh Fkh] rc eSa rks Åij Vh-oh- ns[k jgk FkkA :i flag esjk nknw nk: ihrk FkkA ;g dguk xyr gS fd esjs nknw :i flag dh pkjikbZ ls fxjus ls e`R;q gks xbZ gksA vt[kqn dgk fd esjs ikik xqjnso flag us mldh gR;k dh gSA ;g ckr lgh gS fd esjs ikik xqjnso flag o esjs nknw :i flag ?kVuk ls igys Hkh yM+k djrs FksA ;g dguk xyr gS fd eSa fdlh ds cgdkos esa vkdj vkt >wBs c;ku ns jgk gksÅ¡A eSus ml le; ?kVuk ds oDr tksj&tksj ls "kksj ugha epk;k vkSj uk gh eSa jks;k FkkA "

3. According to Amicus Curiae, perusal of the statement of PW-

1 shows that he is not an eye witness and was informed about the

incident by his cousin brother Udham Singh, however, Udham

Singh was not presented for evidence by the prosecution.

According to this witness the incident was witnessed by his aunt

Laxmi Devi (PW-2), PW-3 Kirandeep Kaur and child of the

accused-appellant. An important fact, the learned Amicus Curiae

pointed out from the statement of PW-1, is that before he came

to the spot (his house) his brother-in-law and his sister

namely Jasvir Singh and Jasvinder Kaur came, however,

none of them made any effort to inform the police and

lodge the criminal case against the appellant. In cross-

examination, when the above fact was put in a form of question to

PW-1, he admitted that his father died, by the time, his

sister and brother-in-law reached. He further stated in his

cross-examination that they reached on the spot when they

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received the information of the incident but they did not go to the

police station to lodge the case. He also pointed out the police

examined the body on site after he came and reported the

incident. For almost 24 hours the body remained there as it,

which is difficult to believe and hints that something alse

happened that is why incident was not reported to police

immediately. Rather PW-2 being the lady concealed the story

from the police and also from the learned trial court. By improving

his version (PW-1), he stated that they were waiting for him. This

witness in his cross-examination admitted the fact that

there was no enmity between the deceased and the

accused-appellant and on the fateful day they both had

drinks together. He further made an important and specific

statement that whatever he is stating, in the learned trial court, is

what was informed to him by his aunt PW-2 Laxmi Devi. According

to learned Amicus Curiae, PW-1 failed to explain the delay in

lodging the FIR and further he is not an eye-witness and

his statement are based on the information given to him by

PW-2 Laxmi Devi. According to him, the statement of this

witness is unreliable as he failed to prove the guilt of the accused-

appellant by his evidence.

4. The learned Amicus Curiae further submitted that according

to prosecution PW-2 Laxmi Devi, is also an important witness as

she is an eye-witness. PW-2, according to learned Amicus Curiae

stated that the deceased and the appellant came to the house

after having drinks outside and again they had drinks inside the

house during which they started fighting with each other.

According to PW-2, the incident was also witnessed by the children

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of the accused-appellant Gurdev Singh @ Gendu. In cross-

examination, this witness stated that the incident occurred around

12-1 in the noon and further there was no enmity between both

the persons and she also has no enmity with the accused-

appellant. She specifically stated that in the state of intoxication

(deceased and appellant) they fought with each other although

that there was no previous enmity between them.

According to the learned Amicus Curiae the appellant and the

deceased both were heavily drunk and there was no previous

enmity between them. An important point which can be gathered,

according to learned Amicus Curiae, from the entire statement of

PW-2 Laxmi Devi is that despite being present on the spot and

having witnessed the incident, she failed to give any reason or

point of dispute which led to alleged fight between them.

Her entire statement failed to demonstrate that the accused with

pre-meditated mind committed the offence and killed the

deceased. According the learned Amicus Curiae, in the absence of

any enmity between the two and any motive to commit the

heinous offence of 302 IPC, the judgment passed by learned trial

court cannot said to be as per the settled principle of law as it was

not the case of 302 IPC and at the maximum it can be, without

admitting, a case of 304 (II) IPC.

5. The learned Amicus Curiae Mr. Bhawani Singh Tanwar,

further referred to the statements of two important witnesses,

according to the prosecution who are the eye-witnesses namely

PW-3 Kirandeep Kaur and PW-4 Lovepreet and both of them are

minor children. A perusal of the statement of both the witnesses,

as per the learned Amicus Curiae, would show that there is no

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difference in the version of PW-2, PW-3 and PW-4 and all these

three eye-witnesses consistently without any contradiction stated

that both the persons were having drinks and while having drinks

that they had a fight. None of these eye-witnesses stated

that there was any enmity between them and further all

the three witnesses did not state any reason of fight

between them which led to the alleged incident. Therefore,

there was no motive with the appellant and there was no

enmity between appellant and the deceased, therefore, in

the absence of any motive or any past enmity and any pre-

medidated mind set for committing the alleged offence, the

appellant could not have been convicted for the offence

under Section 302 IPC. Learned Amicus Curiae further pointed

out a relevant fact from the statement of above three witnesses

that the incident happened around 12-1 in the noon and the

FIR was lodged by PW-1 Ranjeet Singh around 09:30 a.m.

on the next date on 16.07.2014 and during this period, if

the version of PW-2, PW-3 and PW-4 is taken to be true,

the body of the deceased remain there till the police came

and took the body after registration of FIR on 16.07.2014.

In case the appellant had committed the alleged offence on

15.07.2014 then he would not remain present in the area

as he was arrested on the date of FIR around 05:00 p.m.

This fact can be verified from the arrest memo dated 16.07.2014

prepared at 05:00 p.m. which is Exhibit P-11.

The learned Amicus Curiae, Mr. Bhawani Singh Tanwar,

through his arguments suggested that may be due to heavy

drinks the deceased was not in conscious state of mind

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which went unnoticed by all the three eye-witnesses and

he fell on the cot (charpai) and his neck stuck into cot

ropes and it is later on, when the deceased did not wake

up, then they all realized that deceased is no more and then

story was designed and reported next date to police in the

statements. According to Mr. Bhawani Singh Tanwar, prosecution

failed to show any motive and prove the pre-mediated mind of the

accused-appellant in the present case and therefore the evidence

of above witnesses was not sufficient to convict the appellant.

6. According to learned Amicus Curiae the other material

witnesses of the prosecution namely PW-5 Manphool Ram, PW-

8 Hardip Singh and PW-9 Mani Singh, were declared hostile

by the prosecution and without any contradiction PW-8

Hardip Singh, PW-9 Mani Singh, in their examination-in-

chief stated, despite being close relative of the deceased,

that they have no information as to who killed the

deceased, however, both the witnesses consistently stated

that the appellant did not kill the deceased-Roop Singh.

According to learned Amicus Curiae, if the appellant had

committed the offence then PW-8 and PW-9 would have made

same incriminating statements against him and not denied the

complete incidence. Rather (PW-8 and PW-9) with

consistency stated in favor of the appellant, however,

learned trial court has not weighted their version properly.

The learned Amicus Curiae, further referred to the statement of

PW-6 Dr. B M Sharma, who prepared post-mortem report, Exhibit

P-7, in which three injuries have been reported. Statement of PW-

6 is reproduced as under:-

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ihMCY;w&6 Mk0 ch ,e "kekZ "fnukad 16-07-14 dks eSa lh ,p lh fot;uxj esa ,l ,e vks ds in ij rSukr Fkk ml jkst iqfyl izfrosnu Jh fot;uxj ds vk/kkj ij e`rd :i flg iq= Kku flg mez 60 lky tkfr fNEik fuoklh 18 th ch dk iksLVekVZe fd;k ftlesa mlds"kjhj ij fuEu pksVsa vkbZ ikbZ %& 1- xys ij Qans dk fu"kku tks fd] iwjs xys ij uk gksdj v/kwjk FkkA tks yxHkx vkB bap yack o 1 bap pkSM+k FkkA ftlds uhps uhyxqfu"kku [kwu dk FkDdk tek gqvk FkkA ftlls jDr okfgfu;k o peM+h dqpyh gqbZ FkhA ftldk ysfjDl Hkh dqpyk gqvk FkkA ysfjDl dh gMMh VwVh gqbZ Fkh ftldh xqgk esa jDr bdBBk gqvk FkkA vU; pksVksa esa nkabZ rjQ Nkrh ij o ckabZ rjQ uhyxw fu"kku FksA esjh jk; esa ekSr dk dkj.k ne ?kqVuk FkkA tks fd xys ij vkbZ Qnsdh pksV ls "okl uyh :dus ds dkj.k gqbZ FkhA tks lkekU; fnup;kZ esa ,slh pksVsa e`R;qdkjd gksrh gS e`rd :i flag dh iksLVekVZe fjiksVZ izn"kZ ih 7 esjk dyeh gS ftl ij , ls ch esjs gLrk{kj gSA ftjg }kjk vf/koDrk vfHk;qDr %&

;g dguk xyr gS fd] ;fn dksbZ O;fDr pkjikbZ ls fdlh oLrq ij fxjs rks mlds mijksDr izdkj ls xyk nc ldrk gksA ;g dguk xyr gS fd] e`rd us u"kk fd;k gqvk gks mldh otg ls ne ?kqVk gksA "

According to PW-6 the cause of death is axficia due to

throttling. The statements of PW-2, PW-3 and PW-4, if read again,

while also reading the statements of PW-6, Dr. B M Sharma, it

would reflect that the three eye-witnesses stated that the

deceased was killed by the appellant by throttling which doctor

also says in his medical report, however, most importantly, none

of the witnesses stated as to how throttling was done by the

appellant. None of the eye-witnesses specifically stated as

to whether throttling was done with hands or some clothes,

rope etc. were used for strangulation. If the accused would

throttle with both his hands then there would be marks of fingers

on neck, however, the doctor in his examination-in-chief stated

"xys ij Qans dk fu"kku tks fd iwjs xys ij uk gksdj v/kwjk FkkA tks yxHkx 8 bap

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yack vkSj 1 bap pkSM+k Fkk" the above description of the injury, according to the learned Amicus Curiae, is not sufficient to prove the guilt as

no finger marks of appellant were found on the neck of the

deceased and further no eye-witnesses i.e. PW-2, PW-3 and

PW-4 through their evidence stated as to how the throttling

was done by the accused-appellant. A heavily drunken person

if try to throttle any person then both his hands would be required

to cover the neck which will make marks around the neck and the

injury No.1, as described by doctor on the basis of post-mortem

report is insufficient to lead to a definite conclude that throttling

was done with hands and by the accused. In the absence of any

finger marks of appellant on the neck it cannot be concluded that

it was done by accused. Therefore, the prosecution through the

evidence of PW-2, PW-3, PW-4 and PW-6 failed to prove that how

throttling was done by the appellant. Further, in the absence of

any fingers marks on the neck of deceased, by no stretch of

imagination, it can be concluded that any throttling was done by

the appellant on account of which the deceased died. According to

learned Amicus Curiae, the prosecution failed to prove its story

beyond reasonable doubt and learned trial court committed a

serious mistake in passing the judgment of conviction dated

25.06.2015.

As far as PW-7 Jasvir Singh is concerned, he is not an eye-

witness and failed to state anything against the appellant and he

simply stated what was informed to him by PW-2 Laxmi Devi. This

witness also repeated the fact that both the persons were drunk

and there was no enmity or dispute between them. Investigating

Officer, PW-11, also failed to produce any concrete evidence

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against the appellant so as to prove the involvement of accused in

the alleged offence. The learned Amicus Curiae in the last referred

to the statement of DW-1 Attar Singh who is the real brother

of the deceased Roop Singh and like PW-8 and PW-9, this

witness in his examination-in-chief stated important facts which

being relevant as per learned Amicus Curiae, and therefore, the

same are reproduced as under: DW-1

"vkt ls djhc rkjh[k eghuk ;kn ugha gS esa vui<+ gwaA ?kVuk nksigjdh 11&12 cts dh gSA gkftj vnkyr eqyfte esjk lxk Hkrhtk gS o e`rd :i flag esjk lxk HkkbZ FkkA ;s mDr nksuks vkil esa cSBdj "kjkc ih jgs FksA mDr bDdBs jgrs Fks tks vius ?kj ij gh "kjkc ih jgs FksA e`rd :i flag 7&7 fnu rd jksfV ugha [kkrk Fkk og cgqr detksj gks x;k FkkA ge mls "kjkc ihus ds fy, euk djrs Fks "kjkc ihus ls mldh ekSr gks xbZA esus mldks iM+k gqvk ns[kk Fkk og pkjikbZ dh nko.k ds vanj Qalk gqvk FkkA :iflag dh fdlh us gR;k ugha dhA og "kjkc ihdj ej x;kA ftjg }kjk fo}ku vij yksd vfHk;kstd %&

ftl le; gkftj vnkyr eqyfte o e`rd vkil esa "kjkc ih jgs Fks rks esa ikl esa ugha FkkA esjk ?kj iM+kSl esa vyx cuk gqvk gSA ;g ckr lgh gS fd y{eh nsoh] fdj.knhidkSj vkSj yoizhr ogka FksA ;g dguk xyr gS fd eqyfte xqjnso flag us esjs HkkbZ :i flag dks ekjk gks] ftls xyk nckdj ;k Fkki eqDdksa ls ekjihV dj ekjk gksA ;g ckr lgh gS fd] eSa mudks NqM+okus ugha vk;kA eSus vkdj tc :iflag dh yk"k ns[kh rks mlds xys ij dksbZ [kjksap vkfn ugha Fkh og nko.k esa Qalk FkkA ;g dguk xyr gS fd og nko.k esa uk Qalk gks eqyfte us ekjihV dj mls ekj fn;k gksA ;g ckr lgh gS fd] tc eSus esjs HkkbZ e`rd :iflag dks ns[kk rks mlds xys Nkrh o gkFkksa ij pksV ds fu"kku FksA ;g dguk xyr gS fd eSa esjs Hkrhts xqjnso flag ls jkthukek gks tkus ds dkj.k mls cpkus ds fy, xyr c;kuh dj jgk gksaÅA** A perusal of the statement of DW-1, shows that the

deceased was physically weak and for 7-7 days he used to skip

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meals. He used to take excessive liquor. On the fateful day i.e.

15.07.2014 he saw the deceased lying, on the spot, on the cot

(charpai) and found stuck in the cot rope (nk¡o.k). He clearly stated

that no one has killed him, he died due to consumption of

liquor.

In the last, the learned Amicus Curiae took us to the

findings, as recorded by the learned trial court, and by referring to

the findings, he submitted that PW-2, PW-3 and PW-4

including PW-1 failed to state the reason of fight between

the appellant and the deceased and further they by their

evidence failed to show any motive or enmity between the

two which can be the reason for the appellant to commit

the alleged offence of 302 IPC. According to learned Amicus

Curiae, the evidence of doctor regarding the injuries were not

sufficient to lead to the definite conclusion that throttling occurred

due to human act and the prosecution did not put specific

question to PW-6 Dr. BM Sharma, so as to unearth the fact

as to whether such injury could come if the deceased would

have stuck in the cot rope. The evidence of the doctor is

inconclusive and insufficient and also, on the basis of the

inconclusive and insufficient version of the alleged eye-witnesses

i.e. PW-2, PW-3 and PW-4 and the serious delay in lodging the FIR

by PW-1 Ranjeet Singh no conviction can be made. Therefore, the

learned trial court committed the serious mistake by passing the

judgment of conviction dated 25.06.2015 and therefore, present

jail appeal filed by the accused deserves to be allowed and

impugned judgment be quashed and set aside.

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7. Per contra, the learned Public Prosecutor, Mr. Sharwan

Singh Rathore, seriously opposed the arguments as raised by the

learned Amicus Curiae and he vehemently argued that the present

case was proved by the prosecution beyond reasonable doubt

before the learned trial court. By relying upon the statement of

eye-witnesses that is PW-2 and more specifically version of the

two child witnesses namely PW-3 Kirandeep Kaur and PW-4

Lovepreet, learned Public Prosecutor submitted that PW-3 and

PW-4 by their evidence clearly proved the guilt of the accused.

Further the medical evidence was also sufficient as PW-2,PW-3

and PW-4 stated that appellant killed the deceased by throttling

and injury No.1 was specific and clear which was proved by the of

PW-6 Dr. BM Sharma. The learned Public Prosecution submitted

that the learned trial court has not committed any mistake by

passing the impugned judgment dated 25.06.2015 and therefore,

the present appeal deserved to be dismissed being devoid of

merits.

8. Heard learned counsel for the parties. Learned Amicus

Curiae, Mr. Bhawani Singh Tanwar provided valuable assistance to

this Court in the present jail appeal and we appreciate his efforts.

On the basis of the assistance as provided by him and the

arguments advanced by leaned Public Prosecutor and after

considering the arguments as countered by learned Public

Prosecutor, we may now deal with their arguments in the further

paras. The learned Amicus Curiae raised the serious issue of

registration lodging of written complaint dated 16.07.2014 by PW-

1 Ranjeet Singh for the incident which occurred around 12-1 p.m.

on 15.07.2014 which was reduced to FIR on 16.07.2014 around

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09:30 a.m. An important point this Court noticed that the distance

between the place of incident and police station is just 12

kilometers and PW-1 in his cross-examination admitted that his

sister and brother-in-law, despite having reached immediately on

the spot on 15.07.2014 itself much before him and after the death

of deceased, did not report the incident, which according to this

Court, is fatal and creates serious doubt abut the alleged incident

stated to have been caused by the accused-appellant. Non

reporting of the incident immediately to the police when,

according to prosecution, PW-2, PW-3 and PW-4 are the

eye-witnesses is fatal to the case of prosecution.

9. This Court fails to find any discussion by the learned trial

court regarding the serious delay caused by the eye-witnesses

and/ or PW-1 Ranjeet Singh in reporting the case to the police.

The prosecution did not prove this delay during trial and further

the learned trial court also did not notice the serious of delay in

reporting of the case, as pointed out by the learned Amicus

Curiae, because the incident as per PW-2, PW-3 and PW-4,

occurred around 12-1 in the noon on 15.07.2014 and the

deceased died immediately, however, the body remained

there only till PW-1 reported the incident to the police on

the next dated i.e. on 16.07.2014 around 09:30 a.m. Non-

reporting of the incident immediately to the police and/or

not making any effort to take the deceased to the nearby

hospital or to the doctor and without any medical examination

and conclusion of any doctor about the death at that time, there

appears to be a serious doubt about the conduct of PW-2 Laxmi

Devi because PW-3 and PW-4 are the child witnesses. Being a

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major lady (aged about 40 years) her act of not taking the

deceased to the hospital or calling any doctor or reporting the

incident to police creates a serious doubt about the story which

she narrated to the police and other relatives. This Court noted

that PW-4 is not an eye-witness as stated in his cross-examination

that he was watching at that time. Therefore, statement of PW-4

cannot be believed. The judgment passed by the learned trial

court is completely silent on above issues and according to this

Court the learned trial court committed a serious mistake by

ignoring the important facts and the benefit of this goes in favor of

the accused-appellant.

10. This Court while examining the findings as recorded in the

judgment passed by learned trial court and perusing the

statement of PW-2, PW-3 and PW-4, noted that the above

witnesses consistently without any contraction and infirmity

stated that there was no fight or dispute or previous enmity

between the appellant and the deceased and further that

they were having drinks outside the house and continued

the drinks inside the house also. None of the eye-witnesses

namely PW-2, PW-3 and PW-4 inform/state any reason of sudden

fight between the appellant and the deceased. When there was no

enmity between the two and no reason of fight has been stated by

all the three eye-witnesses then the story and the version as

narrated by the above witnesses cannot be believed as they also

failed to state any reason alleged of sudden fight between them

on any specific issue or reason. This Court has no doubt in

accepting the arguments of the learned Amicus Curiae that the

incident actually did not occur in the presence of the accused and

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further as both of them were seriously drunk and not in fit state of

mind, therefore, whatever happened may have occurred

accidentally and also may have occurred after the accused left the

spot. As both the person were in the state of intoxication, being

heavily drunk, this Court noticed, while considering the statement

of DW-1 Attar Singh, who is the only witness stated that he

found the body of deceased on the cot being stuck in the

cot ropes, this Court fails to find any reason that why the

brother of the deceased, who also reached on the spot

immediately on receiving, the information, would state

such a fact in his examination-in-chief. Further the other

relatives which are PW-8 and PW-9 also clearly stated that

appellant did not kill the deceased. This Court also noted that

in a very casual manner the learned trial court, recorded its

erroneous findings that it is the appellant who by throttling killed

the deceased. The evidence of the doctor PW-6 in regard to injury

No.1 is not conclusive and sufficient because if throttling is done

by human hands or strangulation by some material strings etc.

there would be finger marks around the neck or complete ring

would be formed. The statement as given in the examination-in-

chief by PW-6 shows the mark around the neck were

incomplete which does not lead to the definite conclusion

that throttling was done by hands or strangulation by any

material.

This Court also noted that the learned trial court committed

a serious mistake while believing the version of PW-2, PW-3 and

PW-4 that appellant killed the deceased by throttling which can be

either with using both hands or by some material. If accused has

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done throttling with hands then there would have been his finger

marks on the neck of the deceased or if had been done with some

material then other marks would have come, but as the mark,

as stated by PW-6, is approximately eight inch long and

one inch wide which cannot come by throttling and, if any,

material is used then there would be a complete ring

around the neck which after perusing the post-mortem

report and also as opinion of PW-6, Doctor, is missing.

According to this Court, the injury as reported in the post-mortem

report that is Exhibit P-7, read with statement of PW-6 while also

reading the statements of PW-2, PW-3 and PW-4, does not leads

to the definite conclusion that deceased died due to throttling by

the accused-appellant.

For the above reasons, this Court fail to find reasoning as

sufficient as recorded in the judgment by learned trial court. This

Court also noted that the trial was conducted in a very casual and

negligent manner by the learned Additional District Judge that too

in a case involving serious offence under Section 302 IPC, where

the prosecution failed to prove the previous enmity and motive to

commit the alleged offence and further both the persons were

heavily drunk, still the accused was punished without definite

medical opinion, under Section 302 IPC for imprisonment for life.

For the above reasons, as recorded by this Court, the judgment

passed by the learned trial court dated 25.06.2015 is

unsustainable in the eye of law and the same is hereby quashed

and set aside. Consequently, the jail appeal filed by the accused-

appellant is allowed.

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11. The appellant is in jail. He be released if not required to be

detained in any other case. The record of the learned trial court be

sent back immediately.

12. 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
                                    71-Jatin/-




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