Rajasthan High Court - Jodhpur
Sanjay Kumar vs State on 8 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:38141-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 670/2016
Sanjay Kumar S/o. Mahendra, by caste Mali, resident of Janipur,
Nanpur Police Station, District Sitamadhi (Bihar); Presently
resident of Housing Board, Pindwara, District Sirohi
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Dhirendra Singh, Sr. Advocate
assisted by Ms. Priyanka Borana
For Respondent(s) : Mr. Shrawan Singh Rathore, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
Reportable
Judgment Reserved on : 22.08.2025
Judgment Pronounced on : 08.09.2025
Per Hon'ble Mr. Ravi Chirania, J.
1. The present appeal has been preferred by appellant Sanjay
Kumar against the impugned judgment dated 03.05.2016 passed
by learned Additional Sessions Judge No.2, Abu Road, District
Sirohi in Sessions Case No.83/2015, titled as "State of
Rajasthan Vs. Sanjay Kumar" whereby the learned court below
convicted the appellant for the offence under Section 302 IPC and
sentenced him to undergo imprisonment of life and a fine of
Rs.25,000/-, in default of payment of fine, further to undergo one
year's additional simple imprisonment.
[2025:RJ-JD:38141-DB] (2 of 32) [CRLA-670/2016]
2. In nutshell, the brief facts of the case are that a written
report (Exhibit-P/1) dated 20.4.2015 was lodged by one Sanjeet
Jha (complainant) to the SHO, Police Station, Pindwara, District
Sirohi stating therein that he is residing from last more than 23
years in Pindwara and his village-mate, namely, Madan Jha
(deceased herein) also resides close to his house from last 15
years; who works in a factory, named, Choudhary Industry.
3. By the aforesaid written report, he further informed the SHO,
that the accused-Sanjay Kumar in the past attempted to make
illicit relationship with Smt. Ranju Jha, wife of deceased-Madan
Jha and due to this, there was an altercation between them in
past, which was reported by Madan Jha (deceased) and Smt.
Ranju Jha to the police and on account of this, the accused Sanjay
Kumar had enmity with the deceased. He further stated that on
19.4.2015 Ranju Jha told him (complainant) that around 7:00 pm
accused-Sanjay Kumar came to her house in a Pick-up Van and
threatened that today he will kill her husband-Madan Jha
(deceased) after he leaves the factory. Around 9:50 pm, as per
the complainant, he received an information that some Pick-Up
vehicle had hit Madan Jha, who then was taken to hospital in an
injured condition, where he died.
4. On the written report, FIR No.123/2015 was registered at
P.S. Pindwara, District Sirohi against accused Sanjay Kumar Mali
S/o. Mahendra Mali for offence under Section 302 IPC. The written
report (Exhibit-P/1) is reproduced as under :-
[2025:RJ-JD:38141-DB] (3 of 32) [CRLA-670/2016]
"eq> çkFkÊ Jh lathr >k iq= v tkfr czkgE.k fuoklh l‚<k ftyk egksrjh usiky dk
fuosnu gS fd eS fiNys 23 o"kZ ls fi.MokMk esa esjs ifjokj lfgr jgrk gw¡A esjs gh
xkao dk Jh enu >k iq= jkts"oj >k tkfr czkgE.k tks fiNys 15 o"kZ ls ?kkaphokMk
fi.MokMk esa vius ifjokj lfgr jgrk gS rFkk pkSèkjh bUMªlVht fljksgh jksM esa
ukSdjh djrk gSA enu >k ds iMkSl esa igys lat; iq= egsUæ th ekyh fuoklh
tkuhiqj ftyk flrke<h fcgkj jgrk Fkk ml njE;ku lat; ekyh us enu >k dh
iRuh Jhefr jatw >k ds lkFk voSèk lEcUèk cukus dk ç;k"k fd;k ftldk Jh enu
>k dks irk pyus ij enu >k rFkk lat; ds chp vkil esa >xMk gqvkA ftldh
fjiksVZ iqoZ esa enu >k o jatw >k }kjk Fkkus ij nh xbZ Fkh mlds ckn ls lat; ekyh
us enu >k ls jath'k j[kus 'kq: dj fn;k vkt ls djhc pkj fnu igys lat; ekyh
us enu ds lkFk >xMk dj mls tku ls ekjus dh èkedh nh Fkh tks ckr enu }kjk
eq>s crkus ij eSus rFkk gekjs rjQ ds yksxks us lat; dks le>k;k fnukad
19@04@15 dks enu dh ifRu jatw >k us eq>s crk;k dh vHkh 7%00 ih,e ij lat;
viuh fidi xkMh ysdj esjs ?kj vk;k Fkk rFkk eq>s èkedh nh dh rsjs ifr dks ukSdjh
ls NqVVs gh tku ls ekj nwaxkA Qhj FkksMh nsj ckn djhc 9%50 ih,e ij eq>s lqpuk
feyh dh enu dks fjdks ds ikl jksM ij fdlh fidvi xkMh us Vddj ekj nh gS A
enu dks ?kk;y voLFkk esa vLirky fi.MokMk ysdj vk;s rks eSa Hkh vLirky igqapkA
rc enu dh ekSr gks pqdh FkhA eq>s lansg gksus ij eS lat; tks gkmflax cksMZ
fi.MokMk esa jgrk gS rFkk fiUVw esokMk dh fidvi xkMh vkj ts 38 th, 1818
pykrk gS ds ?kj igqapk rks lat; vius ?kj ij feyk rFkk mldh fidvi xkMh Hkh
Äj ds vkxs [kMh ehyh xkMh dks eSusa ns[kk rks xkMh ds vkxs cEij ij rktk [kjksap
rFkk bUtu dh tkyh rkth VqVh gqbZ fefy lat; us vius iwoZ ds jath'k fudkyus gsrw
enu dks tku ls ekjus dh fu;r ls mlds fiNs ls vius okgu fidvi dh VDdj
ekjdj enu dh gR;k dj nh gSA fjiksVZ drkZ gqA gR;k dk eqdnek ntZ dj dkuquh
dk;Zokgh djkosA"
[2025:RJ-JD:38141-DB] (4 of 32) [CRLA-670/2016]
5. The Police on the said report registered an FIR No.123/2015
and conducted investigation. Thereafter it filed charge-sheet
against the sole accused i.e. the appellant Sanjay Kumar. The
learned trial court framed charges against the appellant and on
being denied by him, the trial was conducted against him, in
which, to support its case prosecution examined as many as 12
witnesses and in documentary evidence 31 documents were
exhibited. The statement of accused-appellant were recorded
under Section 313 Cr. P.C. In defence, three documents were
exhibited.
6. The learned trial court after considering evidence of the
prosecution, documents as produced, statement of the accused
recorded under Section 313 Cr. P.C., and the documents produced
in defence, passed the judgment of conviction and sentence dated
03.05.2016, by which the learned court below convicted the
appellant Sanjay Kumar.
7. Aggrieved by the impugned judgment dated 03.5.2016
passed by the learned trial court, the accused-appellant through
Mr. Dhirendra Singh, Sr. Advocate, assisted by Ms. Priyanka
Borana, questioned the judgment on various grounds as
mentioned in the memo of appeal. According to learned counsel,
the learned trial court committed grave mistake in law as well as
on facts while reaching to the conclusion that the accused-
appellant committed the alleged offence. According to him, there
is no direct or indirect evidence so as to conclude that the
appellant committed the alleged offence.
[2025:RJ-JD:38141-DB] (5 of 32) [CRLA-670/2016]
8. Learned Senior Counsel Mr. Dhirendra Singh submitted that
the case was instituted by the police on the written report
(Exhibit-P/1) lodged by PW-1 Sanjeet Jha, who lodged the report
on the basis of the information given to him by the wife of
deceased (Madan Jha), namely, Smt. Ranju Jha. According to the
counsel, there is no eye-witness of the case as neither the wife of
deceased PW-7 Smt. Ranju Jha nor the complainant PW-1 Sanjeet
Jha stated in the written report as well as both in their statements
before the trial court that they saw the accused-appellant hitting
the deceased with pick-up van or that it is the appellant only who
caused injury to the deceased, on account of which, he died.
9. According to learned Senior counsel, by referring to some
past incident, a theory of revenge and enmity was designed and
presented by the complainant on baseless support by PW-7 Ranju
Jha because there was no direct or indirect evidence, therefore,
apparently there was no strong foundation available with the
prosecution to allege that the appellant had committed the offence
alleged. To support his submissions, learned Senior Counsel
referred to the statement of PW-1 Sanjeet Kumar (complainant).
The relevant lines of the statement of PW-1 Sanjeet Kumar is
reproduced as under :-
"eS enu >k dks tkurk gwa tks ?kkaphokMk fi.MokMk esa djhc iUæg lky ls jgrs gSA
buds iMkSl esa lat; tks tkfuiqj ftyk lhrke<h fcgkj dk gS jgrk FkkA lat; us
enu >k dh ifRu ds lkFk voSèk lcaèk cukus dk ç;kl fd;k Fkk ftldk irk enu
>k dks py x;k Fkk blls nksuksa ds chp esa >xMk gqvk FkkA eq>s enu >k us crk;k
fd mlus bl ?kVuk dks ysdj nks ckj Fkkus ij fjiksV nh FkhA fnukad 19-04-15 dks
'kke dks djhc lkr vkB cts enu >k dh ifRu jatw >k us nkSM+rh gqbZ esjs ?kj vkdj
crk;k fd lat; ,d ihdvi xkMh ysdj 'kjkc u'ks esa esjs ?kj vk;k] vkSj èkedh nh
[2025:RJ-JD:38141-DB] (6 of 32) [CRLA-670/2016]
dh eSa rsjs ifr dks ukSdjh ls NqVrs gh ukS cts ekj nwaxkA blds djhc vkèks ikSus ?kaVs
ckn esjs ikl vLirky ls foØe iqjksfgr i=dkj dk Qksu vk;k fd enu~ >k dh
yk'k vLirky esa iM+h gqbZ gS vki vkdj mls ns[kks fdlh us mlds VDdj ekj nh gSA
geus irk fd;k rks irk pyk fd lqjsUæ esokMk dh xkMh ls ftls lat; pyk jgk Fkk
ml xkMh uacj vkjts 38 th, 1818 ls enu >k ds VDdj ekjdj mldh e`R;q
dkfjr dh gSA eS lansg gksus ij ml xkMh dks ns[kus gkmflax cksMZ fi.MokMk x;k Fkk
tgka ij lat; jgrk gS mlds edku ij x;k rks ogka ij xkMh [kMh Fkh ftl ij
rktk jxM ds fu"kku Fks o vkxs dh >kyh VqVh gqbZ FkhA ml le; lat; Äj ij gh
FkkA
çfrijh{kk }kjk vfèkoDrk vfHk;qDr
eS lat;dqekj dks djhc vkB nl lky ls tkurk FkkA ;g lgh gS fd esjs
lkeus lat; o enu >k dk dHkh >xMk ugh gqvk A fjikZsV çn'kZ ih0 1 eSus vius
gkFk ls fy[kdj Fkkus esa nh Fkh] tks eSuZs jkr 12 cts ckn nh FkhA ;g lgh gS fd eSus
lat; dks enu>k ds VDdj ekjrs ugh ns[kk Fkk A esjk ?kj enu>k ds ?kj ls djhc
vkèkk fdyksehVj dhnwjh ij gSA ;g lgh gS fd jatw >k esjs ?kj vkbZ rc vaèksjk gks
x;k FkkA jatw >k vkbZ rc gjh lkMh iguh gqbZ FkhA enu >k ds ,d yMdh ukS lky
dh o ,d yMdk 6&7 lky dk gSA jatw esjs ?kj vkbZ rc mlds cPps mlds lkFk FksA
xkMh dks eS jkr dks 11 cts ds djhc ,sDlhMsaV gksus ds ckn ns[kus x;k FkkA xkMh dk
dyj lQsn FkkA ;g dguk xyr gS fd xkMh tgka [kMh Fkh ogka jks"kuh dh O;oLFkk
ugh gksA xkMh ds jkbZV lkbZM dh >kyh VqVh gqbZ Fkh o chp esa xkMh ds cEij ij
[kjksap vkbZ gqbZ Fkh rFkk ykbZV ds mij dh >kyh VqVh gqbZ FkhA xkMh dk cEij lQsn
dyj dk FkkA cEij ij dk uacj IysV dk jax nwljk FkkA tgka [kjkst vkbZ ogka ij
dksbZ nwljk dyj yxk gqvk ugh FkkA [kjksap uacj IysV ds vklikl FkhA
eq>s vfHk;Dr lat; o enu dh ifRu jatw ds chp tcjnLrh voSèk lcaèk cukus
dh dksf'k'k dh ckr enu >k us crkbZ Fkh A ;g ckr eq>s jatw us ugh crkbZ FkhA jatw
esjs ls ?kqa/kV fudkyrh FkhA ;g dguk xyr gS fd jatw esjs ls cksyrh ugh gksA ,d
xkao ds gksus ls enu esjk NksVsHkkbZ tSlk Fkk] og esjs lekt o xks= dk Hkh FkkA ;g
lgh gS fd enu us igys tc Fkkus esa fjiksZV djkbZ rc eS lkFk ugh FkkA ;g lgh gS
fd eS vLirky igqapk mlls igys enu dh e`R;q gks pqdh Fkh A eSus enu dh yk"k
ns[kh rc mlds eqag o isV ls [kwu fudy jgk Fkk rFkk gkFk ij iVVh ca/kh gqbZ FkhA
ml le; eSus blds vykok dksbZ pksV ugh ns[khA ;g dguk xyr gS fd enu dh
yk"k iqfyl us eq>s lkSih gks Lo;a dgk fd jatw dks lkSih FkhA "
[2025:RJ-JD:38141-DB] (7 of 32) [CRLA-670/2016]
10. According to learned Senior counsel, a perusal of the
statement of PW-1 Sanjeet Kumar would show that he lodged
report only on the basis of story as narrated to him by wife of
deceased Smt. Ranju Jha, PW-7, and as per the statement, he is
not the eye-witness. Learned counsel further submitted that PW-7
in her statement referred to some past dispute between the
deceased and the appellant alleging that the he attempted to have
illicit relationship with her, however, no complaint number or
case number etc., in regards to specific allegation of
attempt to make illicit relationship was stated by Ranju Jha
in her statement before the trial court. The statement of PW-1
Sanjeet Kumar (the complainant) are completely based on self-
designed story as narrated to him by Ranju Jha and, therefore,
according to learned Senior counsel PW-1 and PW-7 are not the
eye-witnesses of the alleged incident and their evidence is not
sufficient to convict the appellant.
11. As learned Senior counsel questioned the story narrated by
PW-7 Ranju Jha to the complainant, therefore, he also read
statement of PW-7 Ranju Jha, an important witness, as per
prosecution. Her statement is reproduced as under :-
"ge usiky ds jgus okys gS fiNys 15 o"kZ ls eS esjs ifr enu>k ds lkFk ?kkphokMk
fi.MokMk esa ifjokj ds tkFk jg jgh gw¡A esjs ,d yMdh dkty o yMdk- fçal jgrs
gSA esjs ifr enu>k pkSèkjh b.MLVªht es eqjyheuksgj ds ;gk ukSdjh djrs FksA esjs
iMkSl es gkftj vnkyr lat; ekyh jgrk FkkA lat; ekyh us esjs lkFk xyr lacaèk
cukus dk ç;kl fd;k Fkk ftl ij esus ;g ckr vius ifr enu>k dks crkbZ FkhA
geus iqfyl es bl ckr dh fjiksVZ dh Fkh ftl ij iqfyl us lat; ekyh dks can
fd;k FkkA esjs ifr enu>k f'ko'kadj o laftr>k us lat; ekyh dks le>k;k Fkk fd
vki ,slk D;ks djrs gksA lat; ekyh fiaVw es?koky dh xkMh pykrk FkkA ÄVuk ls iwoZ
[2025:RJ-JD:38141-DB] (8 of 32) [CRLA-670/2016]
lat;ekyh us esjs ifr enu>k dks tku ls ekjus dh èkedh Hkh nh FkhA 19 ekg vçsy
2015 esa lat; 'kke 7 cts esjs ?kj vk;kA tks fidvi cksysjks vkj-ts- 1818 dks ysdj
vk;k FkkA vkSj eq>s èkedh nh fd vkt ukSdjh ls NqVrs gh eSa rsjs ifr dks tku ls
ekj nwaxkA eq>s jkr 10 cts eksckbZy ij laftr >k us lqpuk nh fd enu>k ds fdlh
us xkMh ls VDdj ekj nh gS vkSj vLirky igqapks vkSj eS vLirky fi.MokMk igwphA
enu>k dh e`R;q gks pqdh FkhA eq>s ijost us crk;k fd lat; fidvi pykdj yk;k
vksj esjs lkeus mlus enu>k ds VDdj ekjh vksj Hkkx x; kA
ftjg }kjk] vfèkoDrk Jh vtZqu nknfj;k----------------------
;g dguk xyr gS fd eSus iqfyl dks ;g ugh crk;k gks fd eq>s ;g ckr
ijost us crkbZ FkhA ;g ckr iqfyl c;ku izn"kZ Mh- 2 esa fy[kh gqbZ ugha gSA eS lat;
dks iMkSl esa jgus ls 15 o'kZ ls tkurh gwaA ;g dguk xyr gS fd vius ifr enu>k
dks ;g ugha crkbZ gks fd lat; us esjs lkFk voS/k laca/k cukus dk iz;kl fd;k
FkkA ;g lgh gS fd ;g ckr esjs iqfyl c;ku izn"kZ Mh- 2 esa ugha gS] eSus iqfyl
esa ;g crk;k fd bl rF; fd tkudkjh esjs ifr dks Hkh gSA ;g dguk xyr gS fd
eSa vius ifr ds lkFk ugha jgh gwaA eS ijost dks tkurh gw¡ tks esjs vkaxuokMh
dk;ZLFky ds ikl jgrk gSA eSa esjs ifr ds ejus ds ckn ls gh tkurh gw¡ igys ugha
tkurh FkhA f'ko'kadj ,oa laftr >k esjs tsBth yxrs gS fQj dgk fd xkao ds ukrs
tsBth yxrs gSA eS bu nksuks ls ?kwa?kV fudkyrh gw¡ ;g dguk xyr gS fd eS muls
ckr ugha djrh gw¡A Lo;a dgk fd eS muls ?kwa?kV fudky dj ckr djrh gwaA eSa ikapoh
d{kk rd i<h gwaA dkty dh tUe rkjh[k 4 fnlEcj gS o'kZ eq>s ;kn ugh gS Lo;a
dgk fd og 13 lky dh gks xbZ gSA
?kVuk jfookj dh gSA ;g lgh gS fd vfHk;qDr ?kVuk ds fnu "kke dks 7 cts
tc esjs ?kj vk;k rc va/ksjk gks x;k FkkA ;g dguk xyr gS fd ml le; lat; dh
fidvi ugh ns[kh gksA ;g dguk xyr gS fd esjk edku ftl xyh es gS ogk xkMh
ugh tkrh gksA og fidvi lQsn jax dh Fkh tks fiNs ls ihyh FkhA eS lwpuk feyus
ds ckn 10 cts djhc vLirky igwaph FkhA ;g ckr lgh gS fd eSus lat; dks esjs
ifr ds VDdj ekjrs ugh ns[kkA ;g dguk xyr gS fd eS jaft"k ls vfHk;qDr ds
fo:) >qBs c;ku ns jgh gwaA"
A plain and simple reading of statement of PW-7 as recorded
by trial court, as per learned Senior Counsel, would show that
PW-7 tried to allege things without referring to any complaint, FIR
etc., in regards to any specific past incident; narrated self-
[2025:RJ-JD:38141-DB] (9 of 32) [CRLA-670/2016]
designed story of alleged attempt made by the accused to have
illicit relationship with her and due to her objection and verbal
altercation of deceased with the accused, the alleged incident was
committed by accused and, therefore, her evidence is sufficient as
per prosecution.
12. While disputing the above version of the prosecution based
on the narration of PW-7 Ranju Jha, learned Senior counsel
submitted that the story of alleged threatening by the appellant to
Ranju Jha on 19.4.2015 at around 7:00 pm is a self-designed
story and has no basis. An important fact which the learned Senior
Counsel pointed out is that there is a material contradiction
and discrepancy in the statement of Ranju Jha, as recorded
by the police, which is Exhibit-D/2 and the statement as
recorded by the trial court as PW-7. Learned Senior counsel
specifically referred to an important line from the examination in
chief of PW-7, wherein she stated that " ÄVuk ls iwoZ lat;ekyh us esjs
ifr enu>k dks tku ls ekjus dh èkedh Hkh nh FkhA 19 ekg vçsy 2015 esa lat;
'kke 7 cts esjs ?kj vk;kA tks fidvi cksysjks vkj-ts- 1818 dks ysdj vk;k FkkA vkSj
eq>s èkedh nh fd vkt ukSdjh ls NqVrs gh eSa rsjs ifr dks tku ls ekj nwaxkA eq>s
jkr 10 cts eksckbZy ij laftr >k us lqpuk nh fd enu>k ds fdlh us xkMh ls
VDdj ekj nh gS vkSj vLirky igqapks vkSj eS vLirky fi.MokMk igwphA enu>k dh
e`R;q gks pqdh FkhA eq>s ijost us crk;k fd lat; fidvi pykdj yk;k vksj esjs
lkeus mlus enu>k ds VDdj ekjh vksj Hkkx x;kA "
The relevant lines of statement are sufficient to conclude that
PW-7 is not an eye-witness and her version cannot be made basis
[2025:RJ-JD:38141-DB] (10 of 32) [CRLA-670/2016]
to hold the appellant guilty, therefore, the judgment passed by the
trial court is erroneous on the face of record.
13. Learned Senior Counsel Mr. Dhirendra Singh strongly pointed
out the fact that PW-7 stated that she was informed about
the incident by one Parveez (PW-12) that the appellant
Sanjay came driving Pick Up and he hit deceased-Madan
Jha from front and then ran away. According to learned Senior
Counsel, therefore, statement of Parveez, recorded as PW-12, are
also relevant to know veracity of the version of PW-7. The
statement of PW-12 Parveez are reproduced as under :-
"eS gky fi.MokMk esa jgrk gwa rFkk Bsdsnkj dk dke djrk gwaA vkt ls lkyHkj igys
eS esjs ?kj ls feL=h ds ogka lkys ds yMds dh iMh gqbZ xkMh dks ysus x;k Fkk eS ogka
ls fudy jgk Fkk rc HkhM bDVBh gks j[kh Fkh ns[kk rks irk pyk fd ,sDlhMsaV gks
x;k gS ftl ij eSus iqfyl Fkkus ij lwpuk nh rFkk vkgr dks ,d VsEiksa esa fcBkdj
vLirky jokuk dj fn;kA eS u rks e`rd dks tkurk gwa vkSj u gh eq>s irk fd
fdlus e`rd ds VDdj ekjh FkhA
uksV% bl Lrj ij vij yksd vfHk;kstd ds fuosnu ij xokg dks i{knzksgh Äksf'kr
fd;k x;kA
izfrijh{kk }kjk vij yksd vfHk;kstd &
;g dguk xyr gS fd eS fjdks ,sfj;k fljksgh jksM esa O;kikj ds flyflys esa
vk;k gksmaA ;g lgh gS fd iqfyl us esjs ls iwNrkN dh FkhA esjs iqfyl c;ku izn"kZ
ih0 31 ds , ls ch Hkkx ^^ fnukad 19-04-15&&&&?kk;y voLFkk esa FkkA** i<dj
lquk;k rks lqu le>dj xokg us ,sls c;ku iqfyl dks ugha nsuk crk;kA esjs iqfyl
c;ku izn"kZ ih0 31 ds lh ls Mh Hkkx ^^eS ljdkjh&&&&mldh gR;k dj nhA**
i<dj lquk;k rks lqu le>dj xokg us ,sls c;ku iqfyl dks ugh nsuk crk;kA ;g
dguk xyr gS fd eSus lat; dqekj dks enu>k dh lkbZfdy ds VDdj ekjrs ns[kk
gksA ;g dguk xyr gS fd lat; dqekj esjk ifjfpr gksus dh otg ls U;k;ky; esa
>waBs c;ku ns jgk gwaA"
According to learned Senior Counsel PW-12 was declared
hostile by the prosecution. In examination in chief PW-12
[2025:RJ-JD:38141-DB] (11 of 32) [CRLA-670/2016]
stated that he has no acquaintance with the deceased and
that he was not aware about the fact as to who hit the
deceased. He simply informed the police about the incident.
The statement of PW-12 shows that when he has no acquaintance
with the deceased-Madan Jha and he did not inform PW-7 about
the incident, therefore, the statement of PW-7, wife of the
deceased, does not inspire confidence and her complete version is
doubtful.
14. Learned Senior Counsel further pointed out that PW-1
Sanjeet Kumar in his statement before the trial court stated that
he was informed about the incident by one Reporter, namely,
Vikram Purohit. According to PW-1, Reporter Vikram Purohit
informed him on telephone that some vehicle has hit Madan Jha
and his body is lying in hospital.
15. After reading statements of PW-1, PW-7 and PW-12, learned
Senior Counsel submitted that it appears that the first
information about the alleged incident was given by
Reporter Vikram Purohit to PW-1, however, the said
Reporter was not produced in evidence by the prosecution
before the trial court and in the absence of the same, the
complete version of PW-1 and PW-7, by which both the
persons tried to implicate the accused-appellant in a false
criminal case, looses its sanctity and foundation and,
therefore, the learned trial court committed serious mistake while
ignoring the serious contradictions and infirmities in the evidence
of the about two witness of the prosecution. The statement of
[2025:RJ-JD:38141-DB] (12 of 32) [CRLA-670/2016]
PW-12 further destroyed the version of PW-7, as he did not inform
her anything about the incident.
16. Learned Senior Counsel also referred to the statement of
PW-4 Sangeet Jha, who also as per the prosecution gave evidence
against the appellant and, therefore, he referred to his statement
also. Learned Senior Counsel submitted that the statement of this
witness is also based on the version narrated to him by Ranju Jha.
The relevant lines of statement of PW-4 Sangeet Jha is
reproduced as under :-
"eS enu >k dks tkurk Fkk] tks vius ifjokj ds lkFk ?kkaphokMk fi.MokMk esa
jgrk FkkA gkftj vnkyr lat; enu >k dh ifRu jatw ds lkFk xkyh xykSt djrk
Fkk] eq>s enu >k o jatw >k us bl ckjs esa crk;k FkkA gkftj vnkyr lat; us jatw
dks cktkj esa ,d FkIiM yxk;k Fkk ;g ckr jatw us eq>s crkbZ FkhA fnukad 20-04-15
dks ftl fnu enu >k ds lkFk ?kVuk gqbZ ml fnu gkftj vknyr lat; jatw >k ds
ikl x;k Fkk vkSj /kedh nh fd eS enu >k dks ekj nwaxk o mls ftUnk ugh vkus
nwaxkA enu >k jkr ukS cts QSDVªh ls NqVdj lkbZfdy ls ?kj vk jgk Fkk] osyde
pkSjk;s ls FkksMk vkxs tc enu >k igqapk] rks lat; us viuh xkMh enu >k ds mij
ihNs ls p<k nhA xkMh ds uacj vkj ts 38&1818 gSA eq>s esjs HkkbZlkgc us ;g lwpuk
nh rc eSa vLirky fi.MokMk igqapk tgka enu >k ds vkbZ pksVksa ls mldh e`R;q gks
x;h FkhA eq>s vLirky fi.MokMk esa jatw >k us Hkh lat; }kjk /kedh nsdj tkuk
crk;k FkkA
çfrijh{kk }kjk vfèkoDrk Jh vtZwu nknfj;k okLrs vfHk;qDr&
;g lgh gS fd eSus ?kVuk gksrs ugha ns[kh Lo;a dgk fd eS ml le;
ÄVukLFky ij ugh FkkA
eS vLirky lk<s ukS cts ds ckn igqapk Fkk] eS igqapk rc enu >k dh e`R;q gks
pqdh FkhA enu >k ds lhus ij pksV ls lwtu vkbZ gqbZ Fkh vkSj mlds flj ij pksV
Fkh ftlesa ls [kwu vk jgk FkkA eS vLirky igqapk rc ogka cgqr ls yksx Fks] eS mu
lcds uke ugh crk ldrkA jatwnsoh Hkh [kcj feyrs gh vLirky vk x;h Fkh tks esjs
igqapus ds igys vk x;h FkhA ;g dguk xyr gS fd jatw us eq>s vLirky esa dqN
ugh crk;k gks Lo;a dgk fd lat; }kjk èkedh nsus dh ckr crkbZ FkhA
;g lgh gS fd eSus ?kVuk dkfjr djrs gq, ugh ns[kk FkkA "
[2025:RJ-JD:38141-DB] (13 of 32) [CRLA-670/2016]
According to learned Senior counsel, the cross-examination
of PW-4 sufficiently shows that he is not an eye-witness and
further he made all statement on the basis of what was stated to
him by Ranju Jha. There are serious contradictions which are
material in nature in the story/version which PW-4 stated in his
statement before the trial court, therefore, the evidence of this
witness is also not reliable and sufficient to convict the appellant
for the offence under Section 302 IPC.
17. Learned Senior Counsel also referred to the statement of
Investigating Officer i.e. Paras Choudhary, whose statement was
recorded as PW-6. By referring to the examination in chief of
PW-6, learned Senior counsel submitted that without any basis,
more specifically, when there is no eye-witness of the entire
incident, the Investigating Officer stated that due to enmity and
revenge, the accused-appellant hit the deceased, for which, he
also threatened the wife of deceased and, therefore, on that basis
he conducted the entire investigation and filed charge-sheet
against the appellant.
18. While referring to the cross-examination of Investigating
Officer Paras Choudhary (PW-6), learned counsel submitted that,
the Investigating Officer even after conducting complete
investigation failed to state any relevant fact which can lead to a
definite conclusion that the alleged offence was committed by the
appellant only. According to learned Senior Counsel the complete
investigation is faulty and has been conducted in a very casual
and negligent manner. The Investigating Officer without any basis
[2025:RJ-JD:38141-DB] (14 of 32) [CRLA-670/2016]
filed charge-sheet against the appellant and further the learned
trial court also believed the version of the Investigating Officer
and the story of the prosecution while passing impugned judgment
of conviction, which is seriously doubtful on the face of record.
19. On the basis of the above submissions, learned Senior
Counsel Mr. Dhirendra Singh, after pointing out serious material
contradictions and infirmities in the story of the prosecution
submitted that there is no eye-witness of the entire incident,
therefore, its a case of circumstantial evidence and the
prosecution failed to prove the case against the appellant by
connecting the chain of evidence and, therefore, the judgment
passed by the trial court is erroneous and deserves to be quashed
and set aside by this Court by allowing the present appeal.
20. Per Contra, learned Public Prosecutor Mr. Sarwan Singh
Rathore, appearing for the State, strongly supported the judgment
passed by the learned trial court and submitted that the
prosecution on the basis of statement of PW-1, the complainant
and PW-7 Ranju Jha, wife of the deceased, sufficiently proved the
fact that as the conduct of the accused-appellant of attempting to
make illicit relationship with PW-7 was the point of dispute and,
therefore, the deceased reported the previous conduct of accused
to the police, due to which, in order to take revenge, accused
killed the deceased by his Pick-up Van on the fateful night, on
account of which the deceased-Madan Jha died.
21. Learned Public Prosecutor also submitted that PW-7 in her
statement clearly stated the fact that just few hours prior to the
[2025:RJ-JD:38141-DB] (15 of 32) [CRLA-670/2016]
incident, the accused threatened her that he would kill her
husband after he leaves the factory and he did that, therefore, the
complete evidence, as on record, was treated sufficient by the
learned trial court and there is no error in convicting the appellant
for the offence under Section 302 IPC with imprisonment for life.
He further submitted that the present appeal being devoid of
merit, deserves to be dismissed.
22. Heard learned counsel for the parties. After perusing record
of trial court, we may now examine the case as set-up by the
accused appellant Sanjay Kumar for challenging the judgment
dated 03.05.2016. As per learned Senior Counsel Mr. Dhirendra
Singh, PW-1 and PW-7 are not the eye-witnesses of the alleged
incident and, therefore, their version of incident has no foundation
and the same cannot be a base to convict accused-appellant for
serious offence under Section 302 IPC. This Court after going
through the written report (Exhibit-P/1) dated 20.4.2015 noted
that in the written report PW-1 did not state the fact that he
was informed about the incident by Reporter Vikram
Purohit, whereas by improving his version before the trial
court, he stated that he was informed about the incident by
Reporter Vikram Purohit, who was not produced in
evidence by the prosecution. This Court note that it is a
serious contradiction in the version of PW-1.
23. While considering arguments of learned Senior counsel
regarding contradiction in the statements of PW-1 and PW-7, this
Court minutely examined the statement of both the witnesses
[2025:RJ-JD:38141-DB] (16 of 32) [CRLA-670/2016]
(PW-1 & PW-7) and noted that they are not the eye-witness and
this fact has also been admitted by PW-7 Ranju Jha as she stated
that "ÄVuk ls iwoZ lat;ekyh us esjs ifr enu>k dks tku ls ekjus dh èkedh Hkh
nh FkhA 19 ekg vçsy 2015 esa lat; 'kke 7 cts esjs ?kj vk;kA tks fidvi cksysjks
vkj-ts- 1818 dks ysdj vk;k FkkA vkSj eq>s èkedh nh fd vkt ukSdjh ls NqVrs gh eSa
rsjs ifr dks tku ls ekj nwaxkA eq>s jkr 10 cts eksckbZy ij laftr >k us lqpuk nh
fd enu>k ds fdlh us xkMh ls VDdj ekj nh gS vkSj vLirky igqapks vkSj eS
vLirky fi.MokMk igwphA enu>k dh e`R;q gks pqdh FkhA eq>s ijost us crk;k fd
lat; fidvi pykdj yk;k vksj esjs lkeus mlus enu>k ds VDdj ekjh vksj Hkkx
x;kA", which shows that she was informed about the incident by
Parveez, PW-12. This Court while examining the statement of
PW-12, Parveez, noted that this witness was declared
hostile by the prosecution and he expressed complete
ignorance about the incident and stated that he has no
acquaintance with the deceased, therefore, there is no
specific evidence on record as to who informed the incident
to PW-1 and PW-7 and who hit the deceased.
According to PW-1 Sanjeet Kumar, he was informed
about the incident by Reporter Vikram Purohit and
according to PW-7 Ranju Jha she was informed about the
incident by Parveez (PW-12), whereas PW-12 did not make
any such statement, rather he expressed complete
ignorance. Further, Reporter Vikram Purohit, who as per
PW-1 first informed him about the incident was not
produced in evidence by the prosecution. The above serious
contradictions, as noted in the story of prosecution
[2025:RJ-JD:38141-DB] (17 of 32) [CRLA-670/2016]
witnesses by this Court, are fatal to the prosecution and
the benefit of this must go in favour of the appellant.
24. This Court has also considered statement of other witnesses,
however, none of them able to prove guilt of accused-appellant
and, therefore, in absence of any concrete evidence from the side
of prosecution, the complete foundation of prosecution looses its
strength. PW-7 & PW-1 on the basis of their independent version
and common foundation of revenge story, as designed by them
tried to prove the guilt of accused, which is not sufficient,
according to this Court after minute examination of the
statements of all the material witnesses. Revenue theory is a
two-edged weapon as it can be used either way. No witness of the
prosecution including PW-1 and PW-7 was able to prove revenge
theory before the trial court by way of its evidence, therefore, this
Court is not satisfied with the arguments as raised by learned
Public Prosecutor by which he tried to support the judgment
passed by the trial court.
25. The prosecution tried to prove its case before the learned
trial court on the basis of revenge theory as designed and
presented by PW-7 and PW-1 and, therefore, the law in regards to
the revenge theory as propounded by the Hon'ble Supreme Court
needs to be examined. Hon'ble Supreme Court in Aslam Alias
Imran Vs. The State of Madhya Pradesh, reported in 2025
Livelaw (SC) 365 in para-22 held as under :-
"22. It is a settled law that enmity is a double-edged weapon. On one hand, it
provides motive, on the other hand it also does not rule out the possibility of false
[2025:RJ-JD:38141-DB] (18 of 32) [CRLA-670/2016]
implication. From the nature of the evidence placed on record by the prosecution,
the possibility of the present appellant being falsely implicated on account of
previous enmity cannot be ruled out. In our opinion, therefore, the appellant is
entitled to benefit of doubt."
Hon'ble Supreme Court in the case of Maukam Singh &
Ors. Vs. State of Madhya Pradesh, reported in 2025 INSC
435, again examined the story of enmity in para-6, and
observed as under :-
"6. The said statement regarding animosity, brought out in cross-examination, is
noticed by us, fully realising that, motive of enmity is a doubled edged weapon.
Animosity alleged can even lead to an accusation of false allegation on the part of
the complainant to deliberately implicate the accused. This makes it imminent that
we examine the testimony of witnesses with a hawk's eye to understand whether it
is truthful or the witnesses are to be disbelieved. The relationship of the ocular
witnesses with the deceased is of no consequence, as the possibility of outsiders
being available inside the house of the injured is very remote. It also has to be kept
in mind that all the ocular witnesses were injured which makes their testimony
credible and believable."
26. In light of the observation of Hon'ble Supreme Court in
the case of Aslam Alias Imran (supra) and Maukam Singh
(supra), this Court noted that, though, the revenge theory was
designed and presented by PW-7 and PW-1 with the support of
other interested witnesses, however, they failed to prove the same
by any documentary evidence which could be in the form of any
criminal case or complaint, FIR etc., lodged against the accused
either by deceased-Madan Jha, while he was alive, or by his wife
Ranju Jha (PW-7) or any relative reporting the alleged attempt of
[2025:RJ-JD:38141-DB] (19 of 32) [CRLA-670/2016]
accused to make illicit relationship with PW-7 Ranju Jha. The
prosecution exhibited document i.e. Exhibit-P/20 dated
14.2.2014 whereby police made a complaint against
accused-appellant facing unruly behaviour, however, a
perusal of Exhibit-P/20 nowhere shows that it was in
respect of any allegation as presented in her story by PW-7
or to be more specific it does not contain any fact regarding
previous attempt alleged to have been made by appellant
for making illicit relationship with Ranju Jha. This
document i.e. Exhibit-P/20 nowhere supports the case of
prosecution. Following the law in regard to revenge and enmity
theory as examined by Hon'ble Supreme Court, in the above two
judgments, we fail to find any concrete evidence in the statements
of material witnesses which can prove the guilt of the accused.
It appears that on presumptions, in absence of any eye-witness,
as noted, by the trial court, name of appellant was reported to
police and the police by blindly believing on the story of the
complainant (PW-1) and PW-7 filed charge-sheet against him,
which was further casually believed by the learned trial court while
passing the impugned judgment.
27. In the last we shall may examine the findings as recorded by
the learned trial court by which it convicted the accused-appellant.
The learned trial court discussed the evidence in para-17 to 24
and recorded its findings, which is being reproduced as under :-
"17- vuqla/kku ds nkSjku ,d lk{kh ijost ds dFku ys[kc) fd;s x;s] ftlus
vuqlaèkku ds nkSjku crk;k Fkk fd ?kVuk ds fnu 19-04-2015 dks tc og jkr dks
[2025:RJ-JD:38141-DB] (20 of 32) [CRLA-670/2016]
djhc 9-15 cts vius okgu ls fljksgh jksM dh rjQ vk jgk Fkk] rc vkxs pyus
okyh fidvi us ,d lkbfdy okys ds VDdj ekj nh vkSj ogka ls Hkkx x;k] mlus
ml ?kk;y ds fy, iqfyl esa lwpuk nh vkSj mls og ysdj vLirky x;k] tgk¡ ij
mldh e`R;q gqbZ vkSj vfHk;qDr us iqjkuh jaft'k ls ;g Vddj ekjh FkhA çdj.k
dk ,dek= p'enhn lk{kh mä ijost gh Fkk vkSj og iw.kZr;k i{kæksgh ?kksf"kr gqvk
vkSj mlus vfHk;kstu dk dksbZ leFkZu ugha fd;kA vc ;fn vU; lk{kh esa ns[kk tk,
rks ihM&2 yYyu feJk] ihM&3 f'ko'kadj i{kæksgh ?kksf"kr gq, vkSj mUgksaus vfHk;kstu
dk flQZ ;gk¡ rd leFkZu fd;k fd enu>k dh yk'k ds dkxtkr iqfyl us cuk;s Fks]
bu lk{khx.k dk i{kæksgh ?kksf"kr gksuk LoHkkfod Hkh Fkk] D;ksafd ;g vfHk;qDr ds xkao
ds ikl ds jgus okys gSA vfHk;qDr vkSj mudk ftyk lhrke<h fcgkj ,d gh gSA
18- vc ;fn vU; lk{khx.k dks ns[ks rks lk{kh ihM&1 lathrdqekj] ftlus dh Fkkus
esa fjiksVZ nh Fkh] mldk ;g dFku jgk fd vfHk;qDr lat; us enu>k dh iRuh ds
lkFk voSèk lacaèk cukus dk ç;kl fd;k Fkk] bl ckr dks ysdj e`rd enu>k vkSj
vfHk;qDr ds chp >xMk Hkh gqvk Fkk vkSj e`rd us Fkkus esa nks ckj fjiksVZ Hkh nh FkhA
ÄVuk ds fnu 'kke dks enu>k dh iRuh jatw us mls ?kj vkdj crk;k Fkk fd lat;
fidvi ysdj mlds ?kj vk;k Fkk vkSj èkedh nsdj x;k fd og mlds ifr dks
ukSdjh ls NwVrs gh ekj nsxkA bl ckr ds djhc vkèkk ikSu ?k.Vs ckn foØe iqjksfgr
i=dkj us mls crk;k fd enu>k dh yk'k vLirky esa iMh gqbZ gS] mlds fdlh us
VDdj ekj nh gS] irk fd;k rks ekywe gqvk fd lqjsUæ esokMk dh xkMh la[;k vkjts
38 th,&1818 ls lat; us enu>k ds VDdj ekjdj e`R;q dkfjr dh vkSj bl rF;
dh mlus fjiksVZ Fkkus esa çLrqr dh FkhA vkxs ;g lk{kh iqfyl }kjk enu>k dh yk'k
ds dkxtkr bR;kfn cukus ds dze esa dFku djrk gSA blus çfrijh{kk esa Lohdkj
fd;k fd mlus lk{kh dks enu>k ds VDdj ekjrs gq, ugha ns[kk FkkA bl lk{kh us
crk;k fd og ,DlhMsaV ds ckn xkMh dks ns[kus x;k Fkk] og xkMh lQsn jax dh Fkh
rFkk jkbV lkbM dh tkyh VwVh gqbZ Fkh vkSj cEij ds [kjksap vk;h gqbZ FkhA enu>k
mlds lekt vkSj xks= dk gSA
19- blh&rjg ihM&4 laxhr >k dk dFku jgk fd lat; enu>k dh iRuh jatw ds
lkFk xkyh xykSp djrk Fkk] bl ckr ds fy, enu>k vkSj jatw us crk;k FkkA ,d
ckj jatw us cktkj esa lat; ds FkIiM Hkh ekjk Fkk vkSj tc enu us vkyck fn;k rks
og mlls ekjihV djus yxkA bl lk{kh dk ;g Hkh dFku jgk fd mlus Hkh ,d ckj
[2025:RJ-JD:38141-DB] (21 of 32) [CRLA-670/2016]
lat; dks le>k;k Fkk fd og ,slk D;ksa dj jgk gSA ÄVuk ds fnu lat; }kjk jatw
dks enu>k dks ekjus dh èkedh nsus ds ckjs esa Hkh ;g lk{kh dFku djrk gSA bl
lk{kh ds vuqlkj ?kVuk ds fnu jkr dks ukS cts tc enu>k ukSdjh ls ?kj vk jgk
Fkk] rks lat; us ml ij ihNs ls xkMh p<k nhA vkxs lk{kh iqfyl }kjk enu>k ds
yk'k ds dkxtkr cukus vkSj uD'kk ekSdk cukus ds Øe esa dFku djrk gSA mlus
çfrijh{kk esa Li"V Lohdkj fd;k fd jatw>k dh ckr dks ysdj mlds vkSj vfHk;qDr
lat; ds chp dgk&lquh gqbZ FkhA fdUrq ;g dguk xyr gS fd mlus lat; ds lkFk
ekjihV dh gksA mlus ;g Hkh Lohdkj fd;k fd mlus ?kVuk gksrs ugha ns[kh FkhA
lkbfdy mlus iqfyl Fkkus esa gh ns[kh FkhA
20- bu lc ds vfrfjDr ,d egRoiw.kZ lkf{k;k enu>k dh iRuh ihM&7 jatw>k gS]
mlus crk;k fd og vius ifr o cPpksa ds lkFk ?kkaphokMk fi.MokMk esa jg jgh gS]
muds iMksl esa jgus okys lat; ekyh us mlds lkFk xyr lacaèk cukus dk ç;kl
fd;k Fkk] mlus ;g ckr vius ifr dks crkbZ Fkh vkSj iqfyl esa fjiksVZ dh Fkh] iqfyl
us lat; dks can Hkh fd;k FkkA bl lkf{k;k ds vuqlkj mlds ifr enu>k] f'ko'kadj
vkSj lathr>k us lat; dks le>k;k FkkA mldk dFku jgk fd ?kVuk ls iwoZ lat; us
mlds ifr enu>k dks tku ls ekjus dh èkedh nh FkhA ?kVuk ds fnu 'kke dks lkr
cts vfHk;qDr mlds ?kj vk;k Fkk vkSj dgk fd vkt mlds ifr dks ukSdjh ls NqVrs
gh og tku ls ekj nsxk vkSj mlh jkr 10-00 cts mls lwpuk feyh dh mlds ifr
dks fdlh us xkMh ls VDdj ekj nh vkSj vLirky igq¡pks] rc og fi.MokMk vLirky
igq¡ph] ogk¡ ij enu>k dh e`R;q gks pqdh FkhA bl lkf{k;k us crk;k fd mls ijost
us crk;k Fkk fd lat; us fidvi pykdj mlds ifr ds VDdj ekj nh vkSj VDdj
ekjdj Hkkx x;k FkkA bl lkf{k;k us çfrijh{kk esa Lohdkj fd;k fd iqfyl c;ku
çn'kZ Mh&2 esa ijost }kjk mls ;g crkuk fd lat; us enu>k ds fidvi ls VDdj
ekjh gS] ugha fy[kk gqvk gSA fdUrq mlus ;g ckr Hkh Lohdkj dh gS fd mlus ;g
ckr iqfyl dks crk;h FkhA mlus crk;k fd ijost mlds vkaxuckMh dk;ZLFky ds
ikl jgrk gS] blfy, mls tkurh gSA mlus Lohdkj fd;k fd ?kVuk ds fnu gh 'kke
dks lkr cts tc lat; mlds ?kj ij vk;k rc vaèksjk gks x;k Fkk vkSj mlus
lat; }kjk mlds ifr ds VDdj ekjuk ugha ns[kk FkkA
21- ,d vU; lk{kh ihM&8 eqjyh euksgj dks Hkh vfHk;kstu us ijhf{kr djok;k
vkSj mlus crk;k fd lat; us enu>k dh iRuh jatw>k ds lkFk voSèk lacaèk cukus dk
ç;kl fd;k Fkk vkSj bl ckr dks ysdj enu>k vkSj lat; esa >xMk Hkh gqvk FkkA
mls lat; }kjk enu>k dh gR;k djus dh èkedh nsus ckcr~ jatw>k us crk;k FkkA
mlus Li"V crk;k fd og laxhr>k ds lkFk lat; ds edku gkmflax cksMZ ij x;k
[2025:RJ-JD:38141-DB] (22 of 32) [CRLA-670/2016]
Fkk] ogk¡ ij fidvi vkjts 38 th,&1818 [kMh Fkh vkSj mldh tkyh VwVh gqbZ FkhA
vkxs iqfyl }kjk ekSdk ns[kus ds dze esa lk{kh dFku djrk gSA gkykafd vfHk;kstu us
bl lk{kh dks i{kæksgh ?kksf"kr fd;k gS] fdUrq mldk ;g dFku jgk fd tc ekSdk
rLnhd fd;k x;k rc vfHk;qDr lat; Hkh mlds lkFk FkkA mlus bl rF; dks xyr
crk;k fd og enu>k dk ?kj ugha tkurk gks vkSj ;g Hkh xyr gS fd og ÄVuk ds
fnu lat; ds ?kj ugha x;k gksA ;g dguk xyr gS fd mlds lkeus lkbfdy
cjken ugha dh xbZ gksA
22- bl&rjg ;fn vfHk;kstu ds lexz lk{; dk foospu djsa rks ;g lgh gS fd
ÄVuk dk dksbZ p'enhn lk{kh ugha gS vkSj tks ,dek= p'enhn lk{kh ijost dk
gksuk vfHk;kstu crkdj vk;k gS] og iw.kZr;k i{kæksgh ?kksf"kr gqvk gSA fdUrq
vfHk;kstu ds lk{kh ihM&1 lathr dqekj vkSj ihM&4 laxhr >k ds dFkuksa ls ;g
Li"V gS fd vfHk;qDr] e`rd enu>k dh iRuh ls voSèk lacaèk cukuk pkgrk Fkk vkSj
tc bldh f'kdk;r e`rd dh iRuh us vius ifr ls dh rks mlus vfHk;qDr dks
vksyck fn;k] bl ij vfHk;qDr us mlds lkFk >xMk fd;k vkSj Fkkus esa fjiksVZ dh
x;hA bl rF; dh iqf"V Lo;a jatw>k ihM&7 ds dFkuksa ls Hkh gksrh gSA
23- bu lc ds vfrfjDr i=koyh ij ,d nLrkost vfHk;kstu dh vksj ls çn'kZ
ih&20 ds :i esa çnf'kZr djok;k x;k gS] ftlds vuqlkj fnukad 14-02-2014 dks
lat; vfHk;qDr us enu>k ds lkFk >xMk fd;k Fkk vkSj iqfyl us mä lat; dqekj
dks fxj¶rkj Hkh fd;k FkkA ihM&1 lathr dqekj vkSj ihM&4 laxhr >k ls bl rF;
ij dksbZ çfrijh{kk gh ugha dh xbZA vfHk;qDr us enu>k dh iRuh ds lkFk voSèk
lacaèk cukus dk ç;kl fd;k vkSj ?kVuk ds fnu 'kke dks vkdj mlus jatw>k dks
èkedh nh fd vkt mldk ifr ukSdjh ls NwVsxk] rc og mls ekj nsxkA bl rF; ij
e`rd dh iRuh ihM&7 jatw>k ls Hkh dksbZ çfrijh{kk ugha dh xbZ fd vfHk;qDr us mls
?kVuk ds fnu 'kke dks mlds ?kj ij vkdj enu>k dh gR;k djus ds fy, èkedh
nh Fkh rks ,slh ifjfLFkfr esa tc dksbZ çfrijh{kk dh gh ugha xbZ] rks mldh lk{;
[kf.Mr ugha gqbZA vfHk;kstu ds lk{kh ihM&1 lathr dqekj] ihM&4 laxhr>k vkSj
ihM&7 jatw>k dh lk{; ,d egRoiw.kZ lekurk j[krh gS vkSj budh lk{; dks ugha
ekuus dk dksbZ dkj.k U;k;ky; ds le{k ugha gS A jatw>k us Li"V crk;k fd mls ?kj
vkdj vfHk;qDr èkedh nsdj x;k Fkk fd mlds ifr ds ukSdjh ls NwVrs gh mlds
gR;k dj nsxk vkSj mldk ifj.kke enu>k ds ukSdjh ls NwVus ds ckn lkeus vk;k
rks vkt Hkys gh vfHk;kstu dk dksbZ lk{kh ?kVuk dk p'enhn lk{kh ugha jgk gks]
fdUrq ifjfLFkfrtU; lk{kh bruh lq-< gS] ftlls Li"V gS fd vfHk;qDr us enu>k ds
okgu ls VDdj ekjdj gR;k dkfjr dh gSA okgu dks mis{kkiw.kZ vkSj ykijokghiwoZd
[2025:RJ-JD:38141-DB] (23 of 32) [CRLA-670/2016]
pykus dh dksbZ çfrijh{kk vfHk;kstu ds lk{khx.k ls ugha dh xbZ] blls Hkh Li"V gS
fd vfHk;qDr lat; tks èkedh nsdj x;k Fkk] mls mlus enu>k dh e`R;q dkfjr dj
fdz;kfUor fd;k gSA
24- bu lc ds vfrfjDr okgu Lokeh ihM&11 lqjsUæ dqekj dk dFku jgk fd
mlds okgu ij vfHk;qDr lat; dqekj djhc ,d o"kZ ls pkyd gS vkSj mls VDdj
ekjus ckcr~ crk;k] tc og dksVk esa vius ifjokj lfgr x;k gqvk Fkk] rc lwpuk nh
FkhA blls Li"V gS fd tks okgu vkjts 38 th,&1818 fidvi iqfyl us tCr dh
Fkh] ml okgu ij ?kVuk ds fnu fopkfjr fd;k x;k vfHk;qDr lat; Mªkboj Fkk] vc
lat; dks ;g çekf.kr djuk Fkk fd og ?kVuk ds oDr pkyd ugha Fkk] fdUrq mldh
vksj ls ,slh dksbZ çfrj{kk ugha yh xbZ A ftl fidvi xkMh vkjts&38th,&1818 dks
lat; pyk jgk Fkk] mldk ?kVuk ds fnu tkyh VwVus ls ;g uqdlku dSls gqvk] ;g
vfHk;qDr Li"V ugha dj ik;kA enu>k dh lkbfdy dk jax fidvi xkMh ds cEij
ij yxk gqvk ik;k x;k] blls Hkh Li"V gS fd blh fidvi ls] ftls vfHk;qDr
pykrk Fkk] enu>k ds VDdj yxhA bls ihM&10 nwj eksgEen lk{kh ls Hkh leFkZu
feyrk gS] tks fd çdj.k esa tCr'kqnk okgu dk ;kaf=d ijh{k.k djrk gSA blus Li"V
dFku fd;k fd fidvi dk jsfM;sVj tkyh eqph gqbZ Fkh] cEij vkSj uacj IysV ij
rktk jxM ds fu'kku Fks] ftl ij lkbfdy dk dkyk dyj fpidk gqvk Fkk vkSj
blus tc lkbfdy dk ijh{k.k fd;k rks lkbfdy dh rkfM;k VwVh gqbZ Fkh vkSj Oghy
doj vkfn eqps gq, Fks] mlus çfrijh{kk esa Li"V dFku fd;k fd ;g dguk xyr gS
fd fidvi ij lkbfdy ls Vdjkus ds dksbZ fu'kku ugha gksA bl&rjg Åij of.kZr
lHkh lk{khx.k vfHk;kstu dgkuh dk iw.kZr;k leFkZu djrs gSA"
28. This Court, after reading the above findings as recorded in
the judgment, noted that the learned trial court on the one hand
recorded its own observation regarding important witness having
turned hostile i.e. Parveez (PW-12) and further it relied upon the
statement of PW-4 Sangeet Jha while recording its findings and on
the other hand recorded that this witness stated that he did not
witness the incident. Contradictory findings have been recorded by
the learned trial court in all the above paras, which are quite
surprising. After reading the findings of the trial court in para
17 to 24 and after recording serious contradictions as noted by
[2025:RJ-JD:38141-DB] (24 of 32) [CRLA-670/2016]
this Court in previous paras, this Court noted that the learned trial
court blindly relied upon the story of prosecution of alleged
attempt by accused to make illicit relationship with PW-7 Ranju
Jha, wife of the deceased, and accepted it as a revenge theory,
due to which the accused killed the deceased by hitting him by his
Pick-up Van. After detailed examination of record, this Court
note that there is no direct or indirect evidence available on
record, so produced by the prosecution, which could lead to
a definite conclusion that the alleged offence was
committed by the accused-appellant. Law in regard to
conviction which must be based on concrete, specific and
clear evidence is well settled and in the absence of the
same, no court should convict any person on unreliable and
unconfirmed evidence of the prosecution, more specifically,
when there are material serious contradictions and
inconsistencies in the statements of material witnesses as
recorded by the trial court. Hon'ble Supreme Court repeatedly
by way of its various judgments have cautioned trial court not to
convict on assumptions and presumptions and should not believe
the story of prosecution blindly until and unless the prosecution
succeeds in proving its case beyond reasonable doubt by
connecting the chain of events with the support of evidence of
material witnesses. Without concrete and specific evidence, no
conviction be made, that too in a case based on circumstantial
evidence. In the present case, in which allegations are of offence
under Section 302 IPC, the duty of the prosecution as well as the
trial court becomes more important; until and unless there are
[2025:RJ-JD:38141-DB] (25 of 32) [CRLA-670/2016]
evidence which leads to a definite conclusion, without any other
possible conclusion, about the guilt of accused, no conviction
should be made.
29. After examining complete record of the trial court, noticing
erroneous findings recorded by the trial court in para-17 to 23 of
the judgment, serious and material contradictions noted in the
statements of PW-1 Sanjeet Kumar, PW-4 Sangeet Jha, PW-4
Ranju Jha and PW-12 Parveez (hostile witness), we have reached
to the definite conclusion that the judgment passed by the trial
court is erroneous and the prosecution failed to prove its case
beyond reasonable doubt in the case based on circumstantial
evidence. As far as evidence of PW-10 Dur Mohammad, his sole
testimony cannot be the basis to convict the accused.
30. Admittedly, as per evidence of prosecution and also as per
statement recorded by trial court, there is no eye-witness of
incident and the complete case of prosecution is based on
circumstantial evidence. The learned trial court in para-23 of the
judgment discussed Exhibit-P/20 document, which was exhibited
by the prosecution. This document is complaint made by police
dated 14.2.2014, by which, the unruly behaviour of accused was
reported. By this document, the story of prosecution was believed
by the trial court as by this document the previous conduct of the
appellant was brought on record.
31. This Court has examined Exhibit-P/20 dated 14.2.2014,
which is a complaint made by SHO, P.S. Pindwara, District Sirohi
regarding some verbal altercation happened between the
[2025:RJ-JD:38141-DB] (26 of 32) [CRLA-670/2016]
deceased and the accused. This complaint was made under
Section 151 & 107 Cr. P.C. This complaint does not contain any
fact regarding attempt made by accused to make illicit relationship
with Ranju Jha. Further this complaint is dated 14.2.2014 and
alleged incident occurred after almost 14 months i.e. on
19.4.2015. PW-7 Ranju Jha, who narrated the story of alleged
attempt as made by appellant with her to all the witnesses,
however, none of the witness by way of any documentary
evidence failed to show that any complaint, FIR etc., was ever
lodged against accused immediately prior to the alleged incident.
The incident dated 14.2.2014 is more than 14 months old and is
not related to alleged attempt as stated in complaint and
evidence. The prosecution should not have based its entire
allegation on the basis of unproved previous conduct, that too,
without any documentary evidence, was the alleged motive behind
committing the offence.
The learned trial court failed to notice that prior to the
alleged incident dated 19.4.2015, no incident regarding the
conduct of appellant was reported in the near past to the police
or any Authority. On the basis of a single old incident, which also,
does not prove the alleged conduct of the accused, presumption
cannot be drawn against accused in a case based purely on
circumstantial evidence.
32. The law in respect of circumstantial evidence is well settled.
Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda vs. State of Maharahstra reported in 1984 (4)
[2025:RJ-JD:38141-DB] (27 of 32) [CRLA-670/2016]
SCC 116 while examining the issue of circumstantial evidence laid
down five golden principles to be followed before reaching to the
conclusion that the accused has committed the alleged offence.
The relevant paras of the judgment as passed in the case of
Sharad Birdhichand Sarda (supra) are reproduced as under:-
"151. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature, character
and essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of Madhya Pradesh
MANU/SC/00378/1952: 1953CriLJ129. This case has been
uniformly followed and applied by this Court in a large number of
latter decisions up-to-date, for instance, the cases of Tufail (Alias)
Simmi v. State of Uttar Pradesh: (1969)3SCC198 and Ramgopal v.
State of Maharashtra MANU/SC/0168/1971 : 1972CriLJ473. It may
be useful to extract what Mahajan, J. has laid down in Hanumant's
case (at pp.345-46 of AIR) (supra):
It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion
of guilt is to be drawn should in the first instance be fully established
and all the facts so the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must
be such as to show as to show that within all human probability the
act must have been done by the accused.
152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
[2025:RJ-JD:38141-DB] (28 of 32) [CRLA-670/2016]
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction
between 'may be proved' and 'must be or should be proved' as was
held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 where the
following observations were made:
Certainly, it is primary principle that the accused must be and
not merely may be guilty before a Court can convict, and the mental
distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions.
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability
the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence."
33. The learned trial court failed to follow the above five golden
principles before reaching to the conclusion that the accused-
appellant committed the offence. This Court noted that the
prosecution failed to connect chain of evidence beyond reasonable
doubt to prove guilt of the accused.
34. This Court noted that there is no eye-witness, there are
serious discrepancies in the fact of first reporting of incident in the
[2025:RJ-JD:38141-DB] (29 of 32) [CRLA-670/2016]
statement of PW-1 & PW-7 and further PW-12, who stated to have
informed PW-7 about the incident turned hostile. Further, most
importantly Reporter Vikram Purohit, who as per statement of
PW-1 himself informed him about the incident, was not produced
in evidence by the prosecution sufficiently shows that the
prosecution failed to connect chain of evidence so as to prove guilt
of the accused. The finding of trial court in regard to paint-marks
on Pick-up Van and cycle cannot be the sole basis for reaching to a
definite conclusion that the alleged incident was caused by the
appellant by driving the vehicle and hitting the cycle of deceased
from back, on account of which, he suffered injuries and died.
35. In the cases which are based on circumstantial evidence, the
prosecution for proving guilt of accused also need to prove last
seen theory during trial.
36. The law in respect of last seen evidence is also well settled.
None of the eye-witnesses in the present case, which are material
as per case of the prosecution, failed to prove the last seen theory
of the prosecution. Hon'ble Supreme Court discussed the last
seen theory, while considering the previous judgment in the case
of Sahadevan & Ors. Vs. State of Tamil Nadu reported in
(2012) 6 SCC page 403. The relevant paras of the judgment
passed in the case of Sahadevan (supra) are as under :-
"30. With the development of law, the theory of last seen has become a
definite tool in the hands of the prosecution to establish the guilt of the
accused. This concept is also accepted in various judgments of this Court.
The Court has taken the consistent view that where the only circumstantial
evidence taken resort to by the prosecution is that the accused and deceased
were last seen together, it may raise suspicion but it is not independently
[2025:RJ-JD:38141-DB] (30 of 32) [CRLA-670/2016]
sufficient to lead to a finding of guilt. In Arjun Marik v. State of Bihar [1994
Supp.(2) SCC 372], this Court took the view that the where the appellant
was alleged to have gone to the house of one Sitaram in the evening of 19th
July, 1985 and had stayed in the night at the house of deceased Sitaram, the
evidence was very shaky and inconclusive. Even if it was accepted that they
were there, it would, at best, amount to be the evidence of the appellants
having been last seen together with the deceased. The Court further
observed that it is settled law that the only circumstance of last seen will not
complete the chain of circumstances to record a finding that it is consistent
only with the hypothesis of guilt of the accused and, therefore, no
conviction, on that basis alone, can be founded.
31. Even in the case of State of Karnataka v. M.V. Mahesh [(2003) 3 SCC
353], this Court held that merely being last seen together is not enough.
What has to be established in a case of this nature is definite evidence to
indicate that the deceased had been done to death of which the respondent is
or must be aware as also proximate to the time of being last seen together.
No such clinching evidence is put forth. It is no doubt true that even in the
absence corpus delicti it is possible to establish in an appropriate case
commission of murder on appropriate material being made available to the
Court.
32. In the case of State of U.P. v. Satish [(2005) 3SCC 114], this Court had
stated that the principle of last seen comes into play where the time gap
between the point of time when the accused and the deceased were last seen
alive and when the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime becomes
impossible.
33. Undoubtedly, the last seen theory is an important event in the chain of
circumstances that would completely establish and/or could point to the
guilt of the accused with some certainty. But this theory should be applied
while taking into consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the point of
being so last seen."
37. This Court fails to find proof of last seen theory in the story
of the prosecution and further there is no finding in this regard in
the judgment of the learned trial court. Merely on the basis of
[2025:RJ-JD:38141-DB] (31 of 32) [CRLA-670/2016]
unproven alleged enmity as narrated by PW-7 and PW-1, the trial
court based its conviction, that too in a case based on
circumstantial evidence, which is a serious mistake committed by
it and on account of this the complete findings are unsustainable
and erroneous on the face of record.
38. On the basis of incomplete chain of evidence no conviction
can be made without strictly following the five golden principles as
laid down by Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda (supra).
39. The prosecution also failed to prove revenge theory beyond
reasonable doubt, therefore, the present appeal filed by the
accused-appellant deserves to be allowed and the impugned
judgment dated 03.05.2016 passed by learned Additional Sessions
Judge No.2, Abu Road, District Sirohi in Sessions Case No.83/2015
(State of Rajasthan Vs. Sanjay Kumar) is quashed and set aside.
40. The appellant is in jail. He be released if not required to be
detained in any other case. The record of trial court be sent back
forthwith.
41. 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
[2025:RJ-JD:38141-DB] (32 of 32) [CRLA-670/2016]
before the Hon'ble Supreme Court as soon as he would be called
upon to do so.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
Sanjay Singh
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