Kuldeep vs State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
773 CRR-293-2019(O&M)
Reserved on: 28.10.2026
Pronounced on: 05.11.2026
Uploaded on: 10.11.2026
Whether only the operative part of the judgment is pronounced or whether the full
judgment is pronounced: Full
Kuldeep
…Petitioner
Versus
State of Haryana
… Respondent
CORAM: HON’BLE MR. JUSTICE RAJESH BHARDWAJ
HON’BLE MS. JUSTICE PUJA CHOPRA
Present: Mr. Shokeen Singh Verma, Advocate,
for the petitioner.
Ms. Shaveta Sanghi, DAG, Haryana.
*
PUJA CHOPRA, J.
Present revision has been filed challenging the impugned
judgment dated 22.10.2018 passed by learned Additional Sessions Judge,
Bhiwani, whereby the judgment and order dated 03.01.2015 and 05.01.2015,
respectively passed by learned Principal Magistrate, Juvenile Justice Board,
Bhiwani convicting the juvenile/petitioner under Sections 302, 364 and 34 IPC
and remanding him to special home as under, were upheld:
Offence under Section Imprisonme Fine In default of fine
nt imprisonment
302 read with Section 34 IPC 03 years NIL NIL
364 read with Section 34 IPC 01 year NIL NIL
All sentences were ordered to run concurrently
2. Briefly, the case of the prosecution is that complainant-Rajpal son
of Lal Chand, caste Chamar, submitted a written complaint (Ex.PW-1/A),
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wherein he alleged that he is a resident of village Devsar and does labour
work. On 16.04.2013, at about 9:00 p.m., he received information that his son
Jaimal, aged about 17 years, had been taken away by Parveen @ Lala son of
Satbir, caste Rajput, resident of Devsar (co-accused of juvenile/petitioner), in a
vehicle. Thereafter, he along with his brother Ram Kishan, followed the said
vehicle. On making ample search, he found that on the Dinod-Kusumbhi road
within the area of village Kusumbhi, Parveen, with the help of
juvenile/petitioner son of Bijender, caste Dhanak, resident of Devsar, was
making his son Jaimal sit on the driver's seat of a white car bearing registration
No.HR-51AH-7099, the front portion of which was in a damaged condition.
However, on seeing them, Parveen and juvenile/petitioner fled from the spot.
Thereafter, when the complainant checked his son by touching, he found that
he had died. They continued searching for Parveen and juvenile/petitioner but
all in vain. Said Parveen was having a grudge due to an earlier incident relating
to Elephant Nikasi due to which Parveen, with the help of juvenile/petitioner,
had murdered his son Jaimal by breaking his leg and inflicting serious injuries
upon him.
2.1 On the basis of the said complaint (Ex.PW-1/A) submitted by the
complainant-Rajpal, FIR No. 257 dated 17.04.2013 (Ex.PW-1/C), under
Sections 302/34 IPC and Section 3 of the SC & ST Act was registered at Police
Station Sadar Bhiwani.
2.2 During the course of investigation, statements of the witnesses
under Section 161 Cr.P.C. were recorded, and the juvenile/petitioner and his
co-accused Parveen were taken in custody. Blood, vomit and car bearing
registration No.HR-51-AH-7099 were taken into police possession vide
recovery memo (Ex.PW-1/E). Post-mortem examination of the dead body of
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Jaimal was got conducted, and the post-mortem report (Ex.PW-4/A) was
prepared. Disclosure statements (Ex.PW-6/A and Ex.PW-6/B) of
juvenile/petitioner and Parveen alias Lala and second set of disclosure
statements (Ex.PW-5/B and Ex.PW-5/C) of Parveen alias Lala and
juvenile/petitioner were recorded. Pursuant to subsequent disclosure
statements, a rope and a piece of white cloth were recovered at their instance
and taken into police possession vide recovery memo Ex.PW-5/D. The
Investigating Officer also prepared a site plan Ex.PW-6/C of the place of
recovery. The accused further got demarcated the place of occurrence where
they had allegedly caused death of Jaimal by tying him to a tree with the help
of a rope and a piece of cloth. In this regard, pointing-out memo Ex.PW-5/E
was prepared by the Investigating Officer.
2.3 After completion of investigation, Final Investigation Report was
presented before learned Principal Magistrate, Juvenile Justice Board,
Bhiwani. After finding a prima facie case, the juvenile/petitioner was served
with notice of accusation under Sections 302, 364, 34 IPC to which the
juvenile/petitioner pleaded not guilty and claimed inquiry.
2.4 In the present case, prosecution examined as many as 12 witnesses
and also produced documentary evidence on record. Thereafter, statement of
juvenile/petitioner under Section 313 Cr.P.C. was recorded, wherein the
juvenile/petitioner pleaded innocence and false implication.
Juvenile/petitioner produced Ex.D/1 on record i.e. copy of deposition of Ram
Kishan as PW-5, in case titled ‘State Vs. Parveen’, in his defence. No other
evidence was led by juvenile/petitioner.
3. After appreciating facts and circumstances of the case, evidence
on record, statements of witnesses, and hearing the arguments of learned
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counsel for the respective parties, learned Principal Magistrate, Juvenile
Justice Board convicted the juvenile/petitioner under Sections 302, 364, 34
IPC and sentenced as aforesaid. The appeal filed by juvenile/petitioner was
also dismissed by learned Additional Sessions Judge, Bhiwani. Hence, the
present revision petition before this Court.
4. L earned counsel for juvenile/petitioner has argued that the case is
based on circumstantial evidence and there is no eye witness account of death
of deceased Jaimal. The prosecution has not been able to establish a complete
chain of circumstances so as to infer that the juvenile/petitioner is the culprit of
the crime alleged against him. The learned Courts below have not appreciated
the evidence properly, and the juvenile/petitioner has not been connected to the
crime. There is unexplained delay in registration of FIR and the conduct of
witnesses is unnatural and the witnesses are liable to be disbelieved.
Investigation of case was started even prior to registration of FIR. Learned
counsel for juvenile/petitioner further argued that no independent witness from
locality was joined at the time of alleged disclosures or recoveries which are
tainted. The juvenile/petitioner has not been connected to the car in question
allegedly used in crime and taken on rent by co-accused Parveen. Learned
counsel for juvenile/petitioner has also argued that in a case of circumstantial
evidence, motive assumes significance, and in the present case, the prosecution
has not been able to establish motive for the crime.
5. Per contra, learned State Counsel has supported the judgements
and order passed by learned Courts below and has argued that the prosecution
has successfully established its case against the juvenile/petitioner and no
interference is called for in the findings returned by learned Courts below as
the entire evidence, oral and documentary, has been duly appreciated by
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learned Courts below and all the arguments as raised by learned counsel for
juvenile/petitioner have also been dealt with.
6. This Court has heard learned counsel for the parties and with their
able assistance has gone through the record of the case as also the judgements
passed by learned Courts below.
7. There is no eye-witness to the occurrence and the case of the
prosecution is based on circumstantial evidence. The circumstances alleged by
prosecution against the juvenile/petitioner are briefly enumerated as under:
I. Complainant Rajpal (PW2) was allegedly informed on 16.04.2013
at about 9:00 PM that his son Jaimal had been taken by Parveen @ Lala in a
vehicle;
II. The juvenile/petitioner and his co-accused Parveen were last seen
by complainant Rajpal (PW2) and his brother Ram Kishan (PW3) when the co-
accused Parveen with the assistance of juvenile/petitioner was making Jaimal
sit on the driver seat of white car bearing registration No.HR-51-AH-7099, and
on seeing the complainant and his brother, the accused fled from the spot;
III. The car used in crime was found in broken condition. Jaimal was
found dead with injuries on his person and was found sitting on driver seat
with head on steering wheel;
IV. According to PW7, Jagmohan, the car HR-51-AH-7099 was taken
on rent by co-accused Parveen from him on 16.04.2013 by saying that his
relative was ill;
V. Pursuant to disclosure statements made by co-accused Parveen
and juvenile/petitioner (Ex.PW5/B and Ex.PW5/C), rope and cloth used by
accused in commission of crime were recovered, which were taken in Police
possession vide recovery Memo (Ex.PW5/D) and site plan (Ex.PW6/C) of the
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place of recovery was prepared by IO/DSP, Virender Singh. The said cloth and
rope were used for tying the deceased Jaimal to the Pahari neem tree,
whereafter accident was made with car and injuries were caused, which were
later projected as a case of accident;
VII. Accused got demarcated the place of occurrence where they had
caused death of Jaimal by tying him with the Pahari neem tree with the help of
rope and cloth and hit him with the car, causing injuries to him. The pointing
memo was (Ex.PW 5/E);
VIII. Later the accused put Jaimal in the dickey of the car and left the
car along with Jaimal on Dinod-Kusumbhi road by making the deceased sit on
the driver seat of the car to make it look like an accident; and
IX. The motive for crime was the incident of Elephant Nikasi due to
which Jaimal was murdered by accused who were nursing a grudge against
him.
8. In cases of circumstantial evidence, motive assumes significance.
According to complainant, as mentioned in his complaint, the motive for the
occurrence was previous grudge pertaining to incident of Elephant Nikasi. In
fact, the episode relied upon by prosecution was that the marriage of son of
Ram Kishan (PW3) was to be solemnized on 04.12.2011 and in that marriage
they wanted to celebrate the marriage by Nikasi ceremony on Elephant but the
Rajpoot community did not allow that. Co-accused Parveen belonged to
Rajpoot community. Defence placed on record Ex.D1, statement of PW3 Ram
Kishan when he appeared in trial of co-accused Parveen as PW5 in ‘State v.
Parveen’. Ram Kishan PW5, in his examination-in-chief in that case, stated
that he did not know how and why his nephew was killed (Ex.D1). In other
words, he said nothing about the grudge of Elephant Nikasi in his statement
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Ex.D1 recorded in case of co-accused Parveen titled as ‘State Vs. Parveen’ and
produced by juvenile/petitioner in defence, though in the present case, he
improved upon his earlier version and mentioned the incident of Elephant
Nikasi. Furthermore, the occurrence in the present case took place on
16.04.2013 and it is not believable that the incident of Elephant Nikasi, which
happened a long time ago in December 2011, had any relation to the present
occurrence, particularly when the main aggrieved person, i.e. PW3 Ram
Kishan, whose son’s marriage was the main reason for dispute of Elephant
Nikasi ceremony, had no personal grudge against the juvenile/petitioner and
his co-accused.
9. The issue of caste which is alleged as the main reason for dispute,
is also not established in this case. The prosecution alleged that the crime was
committed by the co-accused Parveen with the assistance of juvenile/petitioner.
The grouse being that the co-accused Parveen belonged to Rajput community
while the complainant and deceased Jaimal belonged to Chamar community,
the dispute started with the ceremony of Elephant Nikasi. It is apposite to
mention here that juvenile/petitioner, himself belonged to Dhanak community
and thus he himself belonged to Scheduled Caste. Strangely in the previous
disclosure statement of co-accused Parveen ( Ex.PW6/B ), the motive, as
mentioned in the complaint of Elephant Nikasi, was changed and it was
mentioned in the said disclosure statement that the co-accused Parveen had
love affair with the sister of Jaimal and had bad intentions qua his sister which
was opposed by Jaimal and the same was alleged as the motive for crime in the
disclosure statement (Ex.PW6/B). The Elephant Nikasi was not mentioned as
motive of occurrence in the alleged disclosure statement of co-accused
Parveen. This motive in the first disclosure statement of co-accused Parveen
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( Ex.PW6/B ) is contradictory to the alleged motive mentioned in the complaint.
Moreover, if co-accused Parveen was having an affair with the sister of
deceased then obviously caste was not an issue. Be that as it may, the
prosecution has not been able to establish either of the motives, both of which
were contradictory to each other. No witness of the said relationship or
advances made by co-accused Parveen towards sister of deceased Jaimal was
proved on record and thus the earlier disclosure statements of
juvenile/petitioner and co-accused Parveen (Ex.PW6/A & Ex.PW6/B) were
discarded as false disclosures and subsequent disclosures (Ex.PW5/B &
Ex.PW5/C) were put forth by prosecution as having been made by the co-
accused Parveen and juvenile/petitioner. But in subsequent disclosures,
incident of Elephant Nikasi as alleged has not been disclosed by accused. Even
otherwise, the alleged motive of love affair of the co-accused Parveen with
sister of deceased was not mentioned in the complaint given by complainant
(Ex .PW1/A ) nor PW2 & PW3 supported such a theory when they stepped into
the witness box. As aforesaid, improvement was made by PW3 in his
deposition and he was confronted with his previous statement (Ex.D1).
10. In Nandu Singh v. State of M.P., (2022) 19 SCC 301 , the Hon’ble
Supreme Court of India has held:-
“9. In a case based on substantial evidence, motive assumes great
significance. It is not as if motive alone becomes the crucial link in the
case to be established by the prosecution and in its absence the case of
prosecution must be discarded. But, at the same time, complete absence
of motive assumes a different complexion and such absence definitely
weighs in favour of the accused.
10. In Anwar Ali v. State of H.P . [Anwar Ali v. State of H.P., (2020) 10
SCC 166 : (2021) 1 SCC (Cri) 395], this Court made the legal position
clear in the following words : (SCC p. 190, para 24)
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“24. Now so far as the submission on behalf of the accused that
in the present case the prosecution has failed to establish and prove the
motive and therefore the accused deserves acquittal is concerned, it is
true that the absence of proving the motive cannot be a ground to reject
the prosecution case. It is also true and as held by this Court in Suresh
Chandra Bahri v. State of Bihar [Suresh Chandra Bahri v. State of
Bihar, 1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] that if motive is
proved that would supply a link in the chain of circumstantial evidence
but the absence thereof cannot be a ground to reject the prosecution
case. However, at the same time, as observed by this Court in Babu
[Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri)
1179], absence of motive in a case depending on circumstantial
evidence is a factor that weighs in favour of the accused. In paras 25
and 26, it is observed and held as under: (Babu case [Babu v. State of
Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC pp. 200-
201) xxx
25. In State of U.P. v. Kishanpal [State of U.P. v. Kishanpal,
(2008) 16 SCC 73: (2010) 4 SCC (Cri) 182], this Court examined the
importance of motive in cases of circumstantial evidence and observed:
(SCC pp. 87-88, paras 38-39)
“38. … the motive is a thing which is primarily known to the
accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the
particular crime.
39. The motive may be considered as a circumstance which is
relevant for assessing the evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt of the
accused, the same is not weakened even if the motive is not a very
strong one. It is also settled law that the motive loses all its
importance in a case where direct evidence of eyewitnesses is
available, because even if there may be a very strong motive for
the accused persons to commit a particular crime, they cannot be
convicted if the evidence of eyewitnesses is not convincing. In the
same way, even if there may not be an apparent motive but if the
evidence of the eyewitnesses is clear and reliable, the absence or
inadequacy of motive cannot stand in the way of conviction.”
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26. This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in favour
of the accused. (Vide Pannayar v. State of T.N. [Pannayar v. State of
T.N., (2009) 9 SCC 152 : (2009) 3 SCC (Civ) 638 : (2010) 2 SCC (Cri)
1480] )”
11. The unnatural conduct of witnesses, PW2 complainant Rajpal and
PW3 Ram Kishan, is also not worthy of credence and it affects the credibility
of witnesses. According to prosecution, the complainant was informed on
16.04.2013 at about 9:00 PM that his son was taken by co-accused Parveen
and, as per the complaint, the complainant and his brother Ram Kishan
followed the vehicle and after ample search, the complainant and his brother
found that in the area of village Kusumbhi on Dinod-Kusumbhi road, the co-
accused Parveen and juvenile/petitioner were making Jaimal sit on the driver
seat of a white car and after seeing the complainant and his brother fled away
from the spot. Further, as per complaint, complainant even checked his son
Jaimal by touching with hand and found him dead, with injuries. Despite the
same, the complainant and his brother did not inform the police. Rather, they
just left the dead body of son of complainant (PW2) in the same position in the
car and went home and did nothing further till next day when FIR was
registered at 6:15 PM on 17.04.2013 (police proceedings, Ex.PW1/B, recorded
at 5:30 PM). In cross-examination, PW2 complainant Rajpal stated that his
brother Ram Kishan (PW3) is having one Tata truck and two more vehicles
and that he and his brother Ram Kishan searched for his son Jaimal in Tata
vehicle of Ram Kishan. Ram Kishan (PW3) stated that on 16.04.2013 at about
9:00 PM, his brother Rajpal told him that Jaimal had been kidnapped and
thereafter they left the house in search of Jaimal. PW3 did not state that
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had taken the deceased Jaimal in his car at around 9:00 PM. Rather, PW3
stated that at 9:00 PM, Rajpal told him that Jaimal was kidnapped. The version
of Rajpal (PW3) is contradictory to his version in Ex.D1. The examination-in-
chief of PW5 Ram Kishan as recorded in ‘State Vs. Parveen’ and produced on
record as Ex.D1 by defence is as under:-
“Stated that Jaimal since deceased was my nephew. On 16.04.2013 at
about 09.00 p.m. My brother Raj Pal came in my house and asked me
Jaimal was not in the house. Thereafter, we left the house in search of
Jaimal. We kept on searching Jaimal. While searching Jaimal, we
reached on Dinod- Kusumbhi road. We noticed a white colour car and
we saw two boys coming out from that car. My brother asked me
through light. Accused Kuldeep and Parveen who belongs to my
village. He asked me to check the vehicle. We found Jaimal in that car
and we checked him and he was dead at that time. We stopped our
vehicle there and kept standing and after sun rise, Raja Ram Sarpanch
of village Kusambhi reached there and he informed the police.
Thereafter, police came there and took into possession blood and
vomit and car bearing registration no. HR-51AH-7099 vide recovery
memo Ex.P4 and the same was attested by me. I do not know how and
why my nephew was killed. Today accused Parveen is present in the
Court.”
12. The said statement of Ram Kishan, completely demolishes the
case of the prosecution as mentioned in the complaint (Ex. PW1/A). Even
PW2 improved upon his version in the complaint, wherein he had stated that
the deceased Jaimal had been taken by co-accused Parveen in the car at 9:00
PM as per information received by him. However, during his deposition in the
Court, he mentioned that the deceased was taken by co-accused Parveen and
juvenile/petitioner and he and his brother Ram Kishan had followed the
vehicle. Be that as it may, the vehicle was found standing near the fields of
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Raja Sarpanch of village Kusumbhi who also came present during Inquest
proceedings but he has not been examined by the prosecution as witness.
13. If the complainant and his brother were indeed searching for the
accused, who were allegedly stated to have taken Jaimal, and subsequently
found Jaimal lying injured and dead, as alleged, it is difficult to accept that
PW2 and PW3 would return home without taking any further action or
informing the police or any other person about the incident. If the complainant
and his brother had been looking for accused, who are stated to have taken
Jaimal as per information received by complainant, and subsequently found
Jaimal in injured condition and dead, as alleged, it is not acceptable that PW2
& PW3 went home and did nothing thereafter, and did not inform the Police or
any other person. During cross-examination, complainant (PW2) stated that he
was having mobile No.9034761048 and that at the time of occurrence his
mobile was with him. Even, PW3 admitted that his mobile number was
9992620485 in his cross-examination and that they went to search Jaimal in
‘Tata 407 vehicle’. However, even then, the police was not informed
telephonically. It cannot be overlooked that PW2 complainant was none other
than the father of deceased, and it is not imaginable that he would leave his son
in that condition and go home and do nothing about it. More so, when he was
allegedly being accompanied by his brother, who also did not inform the
police.
14. Regarding veracity of a witness against normal human behaviour,
in Rathinam v. State of T.N., (2011) 11 SCC 140 , the Hon’ble Supreme Court
has held:-
“47. With great respect to the Division Bench, we differ
with the rather broad proposition highlighted above. It must
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be remembered that the best check on the veracity of a
witness is the test of normal human behaviour. To our mind,
if the behaviour of a witness is unnatural and grossly against
normal human conduct that itself is a strong circumstance in
doubting the story projected by him...”
15. The delay in FIR results in embellishments and improvements due
to which the original version is withheld from scrutiny of Court and the benefit
of the same has to be given to the accused. In Sekaran v. State of T.N., (2024)
2 SCC 176 , the Hon’ble Supreme Court has held:-
“ 14. We start with the FIR, to which exception has been taken by the
appellant urging that there has been no satisfactory explanation for its
belated registration. It is trite that merely because there is some delay
in lodging an FIR, the same by itself and without anything more ought
not to weigh in the mind of the courts in all cases as fatal for the
prosecution. A realistic and pragmatic approach has to be adopted,
keeping in mind the peculiarities of each particular case, to assess
whether the unexplained delay in lodging the FIR is an afterthought to
give a coloured version of the incident, which is sufficient to corrode
the credibility of the prosecution version.
15. In cases where delay occurs, it has to be tested on the anvil of
other attending circumstances. If on an overall consideration of all
relevant circumstances it appears to the court that the delay in lodging
the FIR has been explained, mere delay cannot be sufficient to
disbelieve the prosecution case; however, if the delay is not
satisfactorily explained and it appears to the court that cause for the
delay had been necessitated to frame anyone as an accused, there is no
reason as to why the delay should not be considered as fatal forming
part of several factors to vitiate the conviction. ”
16. According to complainant Rajpal (PW2), he got information on
16.04.2013 at about 9:00 PM that his son had been taken by co-accused
Parveen, but FIR (Ex.PW/1/C) was registered on 17.04.2013. There is no time
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mentioned as to when the written application was given by complainant on
17.04.2013 to Police. The time mentioned in Police proceedings (Ex.PW1/B)
is 5:30 PM on 17.04.2023 and it is clearly mentioned in the Police proceedings
that SI/SHO Japan Singh was present with his Police team near bus stand
Kusumbhi where ASI Hari Ballabh, Incharge Police Post Jui Kalan and ASI
Mahender Singh 215 came. In the meantime, Rajpal came and moved written
application before SI/SHO. As per FIR (Ex.PW1/C), information was received
at Police Station at 6:15 PM and DDR entry No.25 was also made at 6:15 PM.
PW1 retired SI/SHO Japan Singh during his cross-examination stated that ‘I do
not know whether the police of police post Jui came to known about the dead
body on 17.04.2013 in the morning or not’. He reached bus stand Kusumbhi at
5:00 PM. 10/12 persons were present at the spot at that time including Raja
Sarpanch of village Kusumbhi.
17. Thus, not only there is delay in registration of the FIR but even
the investigation started prior to registration of FIR. According to PW5, he and
Hari Ballabh reached the place of occurrence at about 1:00/2:00 PM.
Complainant and SI Japan Singh were present at the place of occurrence. Dead
body was lying in the car and many villagers were present there. PW6 DSP
Virender Singh admitted in cross-examination that police received the
intimation in the morning at about 8:00/9:00 PM. PW3 Ram Kishan also
admitted in cross-examination that police reached in the morning but he could
not tell the time. PW8 Aman Photographer also stated that he took photos on
17.04.2013 and admitted that he had reached Kusumbhi at about 1:00/1:30.
According to PW2 Rajpal as also Police Ppersonnel from PP Jui reached at the
spot after rising of the Sun and even Raja Sarpanch reached the spot after
rising of the day but he could not tell the time. According PW3 Ram Kishan
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also, he did not know who called the Police at the spot and he also could not
tell for which time he and his brother stayed at the place of occurrence and at
what time the dead body was brought to the hospital. However, he voluntarily
stated that it was day time. He also could not tell at what time the blood stained
earth and vomit were lifted from the spot. However, he voluntarily stated that it
was day time. Therefore, this Court finds that enough time was gained by
prosecution to deliberate upon and fabricate a story with a view to falsely
implicate the accused. The story of last seen is, thus, rejected.
18. The prosecution has tried to cover up this lapse by mentioning in
the inquest report dated 17.04.2013 (Ex.PW1/F) that the date and hour of
discovery of death was 5:00 PM on 17.04.2013. In the inquest proceedings,
dead body was identified by Vijay and Veer Bhan but they have not been
examined by the prosecution. Rather, according to inquest report, Dr. Ravinder
Pal, scene of crime team, along with his staff, in government vehicle came
present at the spot, who got alighted the dead body of Jaimal from the driver
seat and conducted the inspection of dead body and stated that he would give
his report after preparing. However, neither any such report was proved by
prosecution nor Dr. Ravinder Pal was examined. In the said inquest report, it
was also mentioned that wheat fields of Sarpanch Raja were situated on East-
West side of the road and that Sarpanch Raja has also come present at the spot.
The car was found near the fields of Sarpanch Raja on Dinod-Kusumbhi road.
However, Sarpanch Raja has not been examined.
19. In Sunil Kumar Sambhudayal Gupta v. State of Maharashtra,
(2010) 13 SCC 657 , the Hon’ble Supreme Court has held:-
“30. While appreciating the evidence, the court has to take
into consideration whether the contradictions/omissions had been
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of such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements
on trivial matters without effecting the core of the prosecution case
should not be made a ground to reject the evidence in its entirety.
The trial court, after going through the entire evidence, must form
an opinion about the credibility of the witnesses and the appellate
court in normal course would not be justified in reviewing the
same again without justifiable reasons. (Vide State v. Saravanan
[(2008) 17 SCC 587: (2010) 4 SCC (Cri) 580 : AIR 2009 SC
152] .) xxx
32. The discrepancies in the evidence of eyewitnesses, if
found to be not minor in nature, may be a ground for disbelieving
and discrediting their evidence. In such circumstances, witnesses
may not inspire confidence and if their evidence is found to be in
conflict and contradiction with other evidence or with the
statement already recorded, in such a case it cannot be held that
the prosecution proved its case beyond reasonable doubt. (Vide
Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334 :
(2009) 3 SCC (Cri) 1352] ) xxx
34. In State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981
SCC (Cri) 593 : AIR 1981 SC 1390], while dealing with this issue,
this Court observed as under: (SCC p. 754, para 8).
“ 8. … In the depositions of witnesses there are always
normal discrepancies however honest and truthful they may be.
These discrepancies are due to normal errors of observation,
normal errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of the occurrence,
and the like. Material discrepancies are those which are not
normal, and not expected of a normal person.”
35. The courts have to label the category to which a
discrepancy belongs. While normal discrepancies do not corrode
the credibility of a party's case, material discrepancies do so. (See
Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601: (2007) 1 SCC
(Cri) 34: AIR 2006 SC 2908] and Arumugam v. State [(2008) 15
SCC 590: (2009) 3 SCC (Cri) 1130: AIR 2009 SC 331].)”
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20. The disclosure statements made by co-accused Parveen and the
juvenile/petitioner as alleged by prosecution also create a dent in the version of
prosecution and are liable to be disbelieved. According to previous disclosure
statements of both the juvenile/petitioner and co-accused Parveen dated
18.04.2013 ( Ex.PW/6/A & Ex.PW6/B, respectively ), firstly, it was mentioned
that alcohol was administered to Jaimal and then his death was caused by tying
with tree and hitting with car. However, the postmortem report does not
mention any alcohol being present in the body of deceased Jaimal, thus,
falsifying the version in the alleged disclosures of accused. As discussed
above, the motive of love affair in previous disclosure statements has also been
disbelieved by this Court as not being supported by any evidence. Moreover,
nothing was recovered pursuant to earlier disclosure statements dated
18.04.2013 (Ex.PW6/A and Ex.PW6/B) and were discarded as having been
falsely made by prosecution according to which accused subsequently made
another set of disclosures.
21. The recovery of cloth and rope at the instance of co-accused
Parveen and juvenile/petitioner pursuant to subsequent disclosure statements
dated 19.04.2013 (Ex.PW5/B & Ex.PW5/C) is doubtful. There is nothing
extraordinary about the cloth or rope which have no special identification or
mark and are easily available articles. Furthermore, the cloth and rope were not
produced in the Court. Learned trial Court has wrongly relied upon the
recovery memo (Ex.PW5/D) of said articles (cloth and rope). In fact, the place
from where the recovery was allegedly effected is a public place and the
petitioner and his co-accused Parveen were not in exclusive possession thereof.
Even the ownership of articles has not been proved. PW5 admitted in his cross-
examination, “ the place of recovery of cloth and rope is a public place. Every
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public person could come at the spot. The place demarcated by the accused
was already in their knowledge.” PW6 DSP Virender Singh also admitted in
cross-examination that the case property was not present in the Court and that
the place of occurrence was already in his knowledge.
22. In fact, nothing has been recovered pursuant to previous
disclosure statements of juvenile/petitioner and his co-accused Parveen
(Ex.PW6/A & Ex.PW6/B), both dated 18.04.2013 and were allegedly made
simultaneously to the same effect that co-accused Parveen had love affair with
the sister of deceased Jaimal by hide and seek and was having bad intention
towards her, which came to knowledge of deceased Jaimal and that liquor was
served to Jaimal before murdering him by tying him to tree and causing
accident/injuries with car. Both the disclosure statements were later stated to
have been falsely made by both accused who again made another set of
simultaneous disclosures (Ex.PW5/B and Ex.PW5/C) on 19.04.2013, pursuant
to which cloth and rope were recovered at the instance of both the accused
simultaneously, which were then taken in police custody vide memo
Ex.PW5/D. Furthermore, no independent public witness to the said disclosures
(Ex.PW6/A, Ex.PW6/B, Ex.PW5/B, Ex.PW5/C) was joined by the
investigating agency or at the time of recovery. In later disclosures, Ex.PW5/B
& Ex.PW5/C, the petitioner and his co-accused did not mention specific role
played by either accused or any use of cloth or motive of Elephant Nikasi or
any other motive. Vide recovery memo (Ex.PW5/D) dated 19.04.2013, both
the accused, pursuant to their respective disclosure statements in police
custody, allegedly got recovered one white torn cloth and one rope of ‘SUT’
from the canal bridge of Malwa near bank of canal from bushes. Both the
disclosures, Ex.PW5/B & Ex.PW5/C, do not state specifically as to the role
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played by each of the accused and the disclosures mechanically and separately
mention that accused committed the murder without mentioning who held the
accused or who drove the car or what role was played by the accused. PW6
DSP Virender Singh stated that on 19.04.2013, co-accused Parveen and
juvenile/petitioner again suffered disclosure statements Ex.PW5/B and
Ex.PW5/C. He also stated that in their earlier disclosure statements, accused
had disclosed that the rope by which deceased Jaimal was tied and the cloth
which was inserted in the mouth of the deceased were thrown by them near the
canal bridge at Devsar. However, this use of cloth was not mentioned in the
disclosures and no blood or vomit was found on the articles, i.e. cloth and rope,
allegedly recovered in pursuance of disclosure statements. Rather, the same
was mentioned as having been used for tying the deceased Jaimal to tree. PW6
also admitted that no recovery was effected as per the earlier disclosures
statements of the accused and that the accused suffered their disclosure
statements before CIA Staff Bhiwani. However, neither any official of CIA
staff has signed the disclosures and recovery memos nor has any such official
been examined in the Court. Admittedly, PW6 mentioned that no public
witness was joined in the investigation and that public witnesses were present
at the spot. It is not the case of prosecution that any of the persons present at
spot were asked to join investigation but they refused to do so. In fact, despite
their presence, the public witnesses were not joined intentionally in
investigation without any cogent reasons. According to PW1, SI/SHO Japan
Singh, blood stained earth and vomit were lifted from spot and taken in police
possession vide Ex.PW1/E along with car and the dead body therein. However,
neither any blood or vomit was found in the car (mechanical report Ex.PW9/A)
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nor near the tree where the accident was caused (Ex.PW5/E). The veracity of
disclosures is, thus, doubtful.
23. In view of Section 27 of the Indian Evidence Act, 1872 the
pointing memo (Ex.PW5/E) is inadmissible in evidence as no new fact
pursuant thereto was discovered as the same was already in knowledge of the
investigating agency. Thus, the prosecution has not been able to connect the
accused with the crime scene, i.e. Pahari Neem tree area where collision is
stated to have been caused. No independent witness to pointing memo
(Ex.PW5/E) was joined by prosecution. So much so that the prosecution has
not been able to connect the accused to the crime scene near tree.
24. Dr. Mahesh Kumar, Medical Officer (PW4), proved the
postmortem report (Ex.PW4/A). Postmortem examination was conducted on
18.04.2013 at 10:30 am at Government Hospital, Bhiwani by him along with
Dr. Kulwant Phogat. The dead body was brought by ASI Mahender Singh 215
Police Station Sadar, Bhiwani. The body was identified by Vijay Kumar and
Veer Bhan. Both Vijay Kumar and Veer Bhan were given up by prosecution
and were not examined during trial. The very same witnesses were allegedly
present at the time of Inquest proceedings on 17.04.2013 (Ex.PW1/F) and
made statements during Inquest proceedings but as aforesaid they were not
examined. The cause of death was hemorrhagic shock due to multiple injuries
to vital organs, which are sufficient to cause death in normal course of nature.
All injuries were opined to be ante-mortem in nature. The probable time gap
between death and the postmortem examination was within 36 hours, whereas
between injury and death was only of a few hours. In cross-examination, PW4
stated, “ possibility of suffering injuries in road side accident cannot be ruled
out” . No other expert for contrary opinion was produced/examined by the
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prosecution. Admittedly, the dead body was found in the abandoned car and
the hand of deceased was at the steering wheel. The delay in FIR, start of
investigation prior to FIR and unnatural conduct of PW2 and PW3 that
deceased was put in that position by accused, cannot be believed. In fact, there
is no witness who saw the occurrence and the prosecution has not been able to
prove as to the manner in which the occurrence took place.
As far as memo of demarcation (Ex.PW5/E) is concerned, the
same has been mentioned as the place of occurrence where Jaimal after tying
with rope and cloth with tree of Pahari Neem situated at Kusumbhi road,
hitting with the vehicle, was murdered. The witnesses to the said memo of
demarcation dated 19.04.2013 were ASI Hari Ballabh and ASI Mahinder
Singh. The said memo was prepared by IO/DSP Bhiwani. ASI Hari Ballabh
has not been examined as a witness and no public witness was joined in
investigation. Furthermore, the said place was a common place and no crime
scene report was prepared to show the occurrence having taken place at the
said spot. No damage to tree in case of accident or other evidence at the place
of occurrence like tyre marks etc. were proved by prosecution. In fact, PW5
ESI Mahinder Singh 215, who was also a witness to disclosures of accused
(Ex.PW5/B and Ex.PW5/C), stated in his examination-in-chief “ accused have
disclosed in their disclosure statements that they have murdered Jaimal by
strangulating him with the help of cloth and rope.” Further, he also stated,
“ accused also demarcated the place of occurrence vide memo Ex.PW5/E
(Ex.PW5/E was dated 19.04.2013 and is the pointing memo whereby
prosecution has alleged that the accused pointed out the place where Jaimal
was tied to tree and hit with vehicle). PW 5 stated “ prior to that on 13.04.2013,
IO prepared the rough site plan of the place of occurrence Ex.PW1/H (No
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rough site plan was proved on record)” . Ex.PW1/H was crime detail form,
wherein the rough site plan mentioned Mark A as the place where car i.e. HR-
51-AH-7099, was parked on road and the dead body was lying in the driver
seat. In cross-examination, PW5 admitted that no public witness was joined in
the investigation and further “ during interrogation nothing was told by the
accused but when they were asked that they will be released in this case they
suffered their disclosure statements.”
25. PW9 Rajpal reached Police Station Sadar Bhiwani and checked
the vehicle/car mechanically and in cross-examination, he admitted it to be
correct that that the condition of the vehicle may also be caused by roadside
accident.
26. In Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 , the
Hon’ble Supreme Court has held:-
“28. It was argued that the accused were absconding and, therefore,
adverse inference needs to be drawn against them. It is well settled that
absconding by itself does not prove the guilt of a person. A person may
run away due to fear of false implication or arrest. (See Sk. Yusuf v.
State of W.B. [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620]). It is also
true that the plea of alibi taken by the accused has failed. The defence
witnesses examined by them have been disbelieved. It was urged that
adverse inference should be drawn from this. We reject this submission.
When the prosecution is not able to prove its case beyond reasonable
doubt it cannot take advantage of the fact that the accused have not
been able to probabilise their defence. It is well settled that the
prosecution must stand or fall on its own feet. It cannot draw support
from the weakness of the case of the accused, if it has not proved its
case beyond reasonable doubt.”
27. PW7 Jagmohan deposed that he was the owner of car bearing
registration No.HR-51-AH-7099, which was taken on 16.04.2013 on rent by
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petitioner. However, in his cross-examination, he stated that he was not the
owner of the car. The registered owner of car is Gulshan s/o Jammanwas,
resident of Faridabad. He also admitted, ‘case property is not present in the
Court. Self stated that vehicle is present in police station.’ This shows that
PW7 was introduced by prosecution to connect the accused to car which was
found abandoned with deceased on the steering wheel. The fact that vehicle
was still lying in police station at the time of deposition of PW7 shows that the
same was not even taken on Sapurdari. Thus, accused are not connected to the
car at all. Said Gulshan has not been examined and papers pertaining to
ownership of car were not produced before learned trial Court.
28. Thus, his version that the car was taken by the co-accused Parveen
from him cannot be believed and the co-accused Parveen cannot be connected
to the car. No record or register of any kind was produced by PW7 to show that
the car had been taken on rent by the co-accused Parveen. Even the call details
of PW7 or co-accused Parveen have not been proved on record to show that
the witness PW7 called the co-accused Parveen to know about the car as stated
by him. Further, his version that while taking the car, co-accused Parveen had
left his motorcycle with PW7 is also not proved on record. No such motorcycle
has been recovered from PW7, nor any evidence has been led that the same
was taken back by the co-accused Parveen from PW7. Thus, there is no
evidence as to how and on what basis the car came to possession of Parveen
and how PW7 had the authority to give the same on rent to co-accused
Parveen. The recovery memo of car, Ex.PW1/E, from the spot of occurrence
cannot be connected to the co-accused Parveen as prior to the registration of
FIR and the arrest of co-accused Parveen, the car along with dead body stood
recovered by the investigating agency.
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29. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4
SCC 116 , the Hon’ble Supreme Court has held:-
“152 . 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 [(1952) 2 SCC 71: AIR 1952
SC 343: 1952 SCR 1091: 1953 Cri LJ 129]. This case has been
uniformly followed and applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v.
State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and
Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC
656]. It may be useful to extract what Mahajan, J. has laid down in
Hanumant case [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091:
1953 Cri LJ 129]:
“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 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 that
within all human probability the act must have been done by the
accused.”
153. 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.
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
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proved” and “must be or should be proved” as was held by this Court
in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a 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.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence.”
30. The relevant provisions of the Indian Penal Code, 1860, pertaining
to kidnapping and abduction are reproduced hereinbelow:-
“ 364. Kidnapping or abducting in order to murder.—
Whoever kidnaps or abducts any person in order that such person may
be murdered or may be so disposed of as to be put in danger of being
murdered, shall be punished with imprisonment for life or rigorous
imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
Illustrations
(a) A kidnaps Z from India, intending or knowing it to be likely that Z
may be sacrificed to an idol. A has committed the offence defined in
this section.
(b) A forcibly carries or entices B away from his home in order that B
may be murdered. A has committed the offence defined in this section.”
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362. Abduction.—
Whoever by force compels, or by any deceitful means induces, any
person to go from any place, is said to abduct that person.”
A bare perusal of aforesaid provisions reveals that there is no
evidence whatsoever to prove that Jaimal was compelled or induced by force
or by deceitful means as the case may be by the co-accused Parveen or was
abducted by him or even by juvenile/petitioner. The allegation of complainant
Rajpal (PW2) that he was informed by someone that co-accused Parveen took
Jaimal in a vehicle is merely heresay evidence. No person, who passed such
information to complainant Rajpal PW2, was examined as witness. PW2
Rajpal himself did not see co-accused Parveen taking away Jaimal in the
vehicle. Rather, in his deposition before the Court, complainant Rajpal (PW2)
improved upon his earlier version given in the complaint and stated that the
information had been passed to him by his son Sombir. Be that as it may,
Sombir has not been examined by the prosecution. Thus, the allegation of
complainant regarding abduction by co-accused Parveen in car is merely
hearsay evidence and is liable to be discarded.
31. Accordingly, the judgement passed by learned trial Court is set
aside and juvenile/petitioner is acquitted of all charges. Bail bonds, if any,
stand released.
Pending applications, if any, stand disposed of.
( PUJA CHOPRA ) ( RAJESH BHARDWAJ )
JUDGE JUDGE
November 5, 2026
Rajan
Whether speaking / reasoned: YES/NO
Whether Reportable: YES/NO
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