[2026:RJ-JP:6809-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal (Db) No. 394/2018 1. Muneem S/o Banee Singh, Aged About 25 Years, R/o Bholupura, Police Station Kudgaon, District Karauli, Raj. (Presently Confined In Jail, Karauli). 2. Banee Singh S/o Moti Singh, Aged About 45 Years, R/o Bholupura, Police Station Kudgaon, District Karauli, Raj. (Presently Confined in Jail, Karauli). ----Accused-appellants Versus State of Rajasthan, Through PP. ----Non-petitioner For Appellant(s) : Shri Tarun Jain For Respondent(s) : Shri Amit Kumar Punia, PP Shri Naresh Kumar Gupta, PP with Ms. Neha Goyal Shri Ritesh Kumawat for Shri Abdul Rahim Khan HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE SAMEER JAIN Judgment Date of Conclusion of Arguments : : 10/02/2026 Judgment Reserved On : : 10/02/2026 Whether the full judgment or only the operative part is pronounced : : Full Judgment Judgment Pronounced On : : 17/02/2026 Per Hon’ble Mahendar Kumar Goyal, J. This criminal appeal is preferred by the accused-appellants (for short-`the appellants’) assailing the judgement dated 19.09.2018 passed by the learned Additional Sessions Judge, Karauli (for short-`the learned trial court’) in Sessions Case [2026:RJ-JP:6809-DB] (2 of 14) [CRLAD-394/2018] No.61/2015 (104/15) CIS 917/2015 whereby, the appellants have been convicted and sentenced as under: Appellant No.1- Muneem Section 302 IPC: Life imprisonment and fine of Rs.10,000/-; in default whereof, three months additional simple imprisonment. Section 307 IPC: Ten years rigorous imprisonment and fine of Rs.10,000/-; in default whereof, three months additional simple imprisonment. Section 3/25 Arms Act: Three years simple imprisonment and fine of Rs.3,000/-; in default whereof, one month additional simple imprisonment. All the sentences to run concurrently. Appellant No.2- Banee Singh Section 302/34 IPC: Life imprisonment and fine of Rs.10,000/-; in default whereof, three months additional simple imprisonment. Section 307 IPC: Ten years rigorous imprisonment and fine of Rs.10,000/-; in default whereof, three months additional simple imprisonment. Both the sentences to run concurrently. The relevant facts, in nutshell, are that the injured Smt. Kamlesh (PW1) made a parcha bayan (Ex.P1) dated 09.08.2015 at General Hospital, Karauli stating therein that on that very day, at about 6-7 am, when she, along with her sister-in-law Smt. Bhagwanti and daughter-in-law Kashmira, was at their water tank, the appellants came along with four other co-accused and the appellant-Banee opened gun fire which hit all three of them resulting in death of Bhagwanti. It was stated that the incident was witnessed by S/Shri Dhara Singh and Ram Swaroop. Based thereupon, an FIR No.118 dated 09.08.2015 came to be [2026:RJ-JP:6809-DB] (3 of 14) [CRLAD-394/2018] registered at the Police Station Kudgaon, District Karauli for offence under Sections 143, 307 and 302 IPC. After investigation, the police charge-sheeted the appellants as well as co-accused- Hariom for the offence under Sections 341, 324, 302/34, 307/34 and 120B IPC. Charges under Sections 341, 302/34, 307 and in alternate, under Sections 307/34, 324 and 120B were framed against the appellant-Banee Singh, charges under Sections 341, 302/34, 307/34 and 120B IPC were framed against co-accused Hari Om and against appellant-Muneem, under Sections 341, 302, 307, 324, 120B of IPC and 3/25 of the Arms Act. After trial, while, Hariom was acquitted of the charges framed against him, the appellants have been convicted and sentenced by the learned trial court, vide judgement dated 19.09.2018, as stated hereinabove. Assailing the judgement impugned, learned counsel for the appellants contended that their conviction has been recorded by the learned trial court on the basis of conjectures and surmises without any legally admissible evidence to connect them with the alleged offence. He submitted that though, the police has reached the house of the complainant-party soon after the incident; but, they refused to lodge the report rather, much delayed it which raises a grave suspicion as to true genesis of the case. He further submitted that from the evidence on record, it is apparent that there has been improvement and embellishment by the prosecution witnesses on material aspects of the case which renders the prosecution story to be unreliable. Inviting attention of this Court towards the statement of injured witnesses and other eye witnesses, learned counsel contended that their deposition as to their location vis-a-vis the position of the appellants at the time [2026:RJ-JP:6809-DB] (4 of 14) [CRLAD-394/2018] of commission of offence, who shot the gun and the number of gun fires, is self contradictory and mutually destructive which is fatal to the prosecution case. He also contended that prosecution version as to motive of the crime is also full of contradictions rendering it totally unreliable. He, therefore, prayed that the judgement impugned dated 19.09.2018 be quashed and set aside and they be acquitted of the charges framed. Per contra, learned Public Prosecutor, assisted by learned counsel for the complainant, opposing the submissions made and supporting the findings recorded by the learned trial court, prayed for dismissal of the appeal. Heard. Considered. Indisputably, Smt. Bhagwanti has succumbed to injury on account of a gun shot and Smt. Kamlesh (PW1) as also Smt. Kashmira (PW9) have received gun shot injuries. Now the question before us is as to whether the prosecution has been able to connect the appellants with the alleged offence. The prosecution story begins with the parcha bayan of injured witness Smt. Kamlesh (PW1) made at General Hospital, Karauli on 09.08.2015 at 12.40 PM wherein, it was alleged that when she, along with deceased Smt. Bhagwanti and injured Kashmira, was washing hands at their water tank after meeting the call of nature, the appellants came along with four other accused persons and Banee opened gun fire hitting all three of them. Soon thereafter, the injured as also the deceased were shifted to their residence where the police also reached within half an hour; but, despite presence of a large number of male members of the family, FIR was not lodged immediately; but, was [2026:RJ-JP:6809-DB] (5 of 14) [CRLAD-394/2018] delayed by about more than five hours. Smt. Kamlesh (PW1) has stated that they started for the hospital two hours after being hit and in the interregnum, they were at their residence with the male members. This testimony stands corroborated from the deposition of S/Shri Dhara Singh (PW2), Ram Hari (PW4), Hansraj (PW6), Hakim Singh (PW10) as also of the Investigating Officer Shri Gulab Singh (PW28). While S/Shri Dhara Singh, Ram Hari, Hansraj and Hakim Singh have stated specifically, in their cross examination, that they could furnish no reason as to why the FIR was not lodged at the residence; the prosecution witness Shri Hansraj (PW6) has even admitted that when the villagers were coming to their residence, Kashmira and Kamlesh were explaining in detail the entire episode; but, he also failed to furnish any reason as to why the FIR was not lodged. The Investigating Officer has stated that despite request, the family members refused to lodge the report on the premise that they would first get the injured treated in the hospital. In the hospital, they denied to do so on the pretext that the report would be lodged by the injured herself. It has also come in evidence that before making the parcha bayan, Smt. Kamlesh had consulted the male members of the family. In view thereof, it is apparent that the parcha bayan was made after much deliberation still, as we would discuss at the appropriate place, the prosecution has made much improvement in it rendering the genesis of the prosecution case to be doubtful. From the evidence on record, we find that there are much contradictions in it as to who opened the gun fire, how many guns were used as also, how many shots were fired. [2026:RJ-JP:6809-DB] (6 of 14) [CRLAD-394/2018] In the parcha bayan, it is alleged that only Banee shot one gun fire which hit all three. However, improving her version, Smt. Kamlesh (PW1) has stated that both, Banee as also Muneem, opened the gun fire. In her cross examination, she has stated that only one gun was used by both the appellants; first by Banee and thereafter, by Muneem after snatching it from Banee. She feigned ignorance as to number of gun shots fired by Muneem. However, her deposition reveals it to be more than one. When confronted with her statement recorded under Section 161 Cr.P.C. (Ex.D1), she denied to have made such a statement that “Banee Singh did not open fire.” Thus, from her deposition as PW1, it is apparent that she has completely contradicted her parcha bayan. Shri Dhara Singh (PW2) has also stated that both the appellants used only one gun and while Banee shot only one fire, Muneem shot two. In his cross examination, he has also stated that in his police statement (Ex.D2), it was wrongly mentioned that all the injuries were inflicted only by one gun fire. Although, Shri Ram Swaroop (PW3), has, in his examination-in-chief, stated that both the appellants shot one gun fire each; but, in his cross examination, he has stated that Muneem fired four gun shots. Further, he admits that his statement recorded under Section 161 Cr.P.C. (Ex.D3) contains that the gun shot fired Banee Singh did not hit anybody and the injuries were caused by the gun shot fired only by Muneem; but, he has denied to have stated so. Although, Shri Ram Hari (PW4) is not an eye witness; but, he has claimed to have heard firing of three gun shots. Shri Hansraj (PW6), contradicting other prosecution witnesses, has claimed, in his examination-in-chief, that both the appellants were having their [2026:RJ-JP:6809-DB] (7 of 14) [CRLAD-394/2018] individual gun; although, in his cross examination, he has stated that he has wrongly stated that the appellants were having a gun each. He also claimed that both the appellants opened multiple fires. However, as per the recovery memo (Ex.P3), only two empty cartridges were found that too at the place from where the appellant-Muneem is alleged to have opened the gun fire. Conspicuously, no cartridges were found at the place where Banee Singh is alleged to have shot the gun fire. This aforesaid evidence not only belies the genesis of the prosecution case, i.e., the parcha bayan of the injured witness- Smt. Kamlesh; but, the prosecution case that both the appellants have shot gun fire from different places that too, more than a couple of time. Furthermore, the testimony of the injured witness Smt. Kamlesh (PW1) reflects that the first gun fire was opened by Banee Singh from place “A” which had hit herself as also Kashmira. It may be pertinent to note here that Kashmira has been examined as PW9; but, she has turned hostile. During her cross-examination by the learned Additional Public Prosecutor, she has denied the suggestion that the appellants opened gun fire which caused death of Bhagwanti and injuries to self and Kamlesh. Further, the Investigating Officer has admitted in his cross- examination that the pallets from the gun shot fired from place “A” in the site plan, i.e., the place from where Banee Singh is alleged to have opened the fire, could not have hit the person washing hands at the tap on the water tank as claimed in the parcha bayan. We may mention here that this testimony of the Investigating Officer is based on his own observation at the site [2026:RJ-JP:6809-DB] (8 of 14) [CRLAD-394/2018] and not based on the statement made to him by the witnesses so as to be hit by Section 162 Cr.P.C. In the conspectus of the aforesaid analysis, we are convinced that the prosecution has not come out with true genesis of the case and has suppressed it. Moreover, in the parcha bayan, S/Shri Dhara Singh (PW2) and Ram Swaroop (PW3) are claimed to be present at the place of incident. Shri Dhara Singh claims presence of self, Ram Swaroop and Hansraj at the scene of crime at the time when the injured and the deceased came there after meeting the call of the nature. However, in his cross-examination, he has stated that when he reached the scene of crime, all others were already present there. Further, Shri Hansraj as PW6 has, contradicting the deposition of the PW2, stated that when he was going to meet the call of nature in the morning of the fateful day, he was chased by the appellants along with co-accused whereupon, he reached back to the water tank where he found others and in his cross-examination, he has categorically stated when he had gone to meet the call of nature, none was present at the water tank and he found them only when he returned. Further, all the eye witnesses, other than the injured eye witnesses, have claimed to have seen the incident from a “chhappar”, (a makeshift hut) situated within 10 to 15 feets of the water tank; but, conspicuously, it is not shown in the site plan (Ex.P4). The absence of the chhappar in the site plan is rendered of much significance in view of their cross-examination which creates doubt as to whether they have, as a matter of fact, seen the incident. Shri Dhara Singh (PW2) has feigned ignorance when [2026:RJ-JP:6809-DB] (9 of 14) [CRLAD-394/2018] confronted with his Section 161 Cr.P.C. statement (Ex.D2) as to why, it did not contain the averment that they were hiding in the chhappar. While, Dhara Singh has claimed that when they were hiding in the chhappar, they were not visible to the accused; Shri Ram Swaroop, as PW3, has stated that they were visible to the accused while hiding in the chhappar and the accused were clamouring to drag them out. He has also claimed that 2-3 gun shots were fired in the chhappar; however, feigned ignorance when asked as to why these averments are absent in his police statement (Ex.D3). Shri Hansraj (PW6) stated that he was unaware as to whether the accused have seen them hiding in the chhappar although, he claims that Muneem had opened a gun fire at the chhappar. Therefore, from the above testimony, it is not established, beyond doubt, that these witnesses were hiding in a chhappar in the vicinity and have seen the crime. The Hon’ble High Court of Chhattisgarh at Bilaspur in Ajeet Kumar Kanwar vs. State of Chaattisgarh and Manoj Soni & Ors. vs. State of Chattisgarh, MANU/CG/1545/2024, held as under: “29. The Supreme Court in the matter of Shingara Singh vs. State of Haryana and Another-MANU/SC/0869/2003: (2003) 12 SCC 758 has held that the omission to show essential feature in the site plan is a lapse on the part of the Investigating officer and observed in paragraph-29 as under:- "29. The evidence on record with regard to the existence of cots in the court- yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both [2026:RJ-JP:6809-DB] (10 of 14) [CRLAD-394/2018] the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined." 30. Similarly, in the matter of Baldev Singh and Another vs. State of Madhya Pradesh-MANU/SC/0001/2003 ; (2003) 9 SCC 45, it has been held by the Supreme Court that the site plan is not a mere formality and it is essential feature to highlight the importance of the site and held as under:- "13…..The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident." We also find from the prosecution evidence that it is doubtful that the gun shot fired from place ‘B’ in the site plan (Ex.P4), i.e., the place from where the appellant-Muneem is alleged to have opened the gun fire, could hit the victims. Smt. Kamlesh (PW1) has stated, in her cross-examination, that when Muneem opened gun fire, they were hiding behind the water tank. Clarifying further, she has stated that she was hiding towards the side where the sun sets and Muneem was also on that side of the water tank. If her testimony is examined on the touch stone of site plan (Ex.P4), then, in between her and the appellant- Muneem, there was the water tank rendering it impossible of her being hit from the gun fire opened by Muneem who was standing in front of the government water tank at place `A' and she was hiding behind another water tank at place `B'. She has also claimed that Kashmira was also towards another side of the tank [2026:RJ-JP:6809-DB] (11 of 14) [CRLAD-394/2018] beyond the reach of Muneem. Shri Dhara Singh (PW2) has stated that the deceased Bhagwanti was hiding along with Kamlesh behind the water tank. He has further stated when the second fire was opened (obviously by appellant-Muneem), the accused were on eastern side whereas, all the three ladies were in the western side, as also claimed by Smt. Kamlesh a PW1. Similar is the deposition of Shri Ram Swaroop (PW3) who has stated that when the gun was fired, the ladies were towards other side of the water tank. From the Ex.P4-the site plan, it is apparent that while the accused, including the appellant-Muneem, were standing in front of the government water tank at a distance of about 50 yards, all the three ladies were hiding towards western side, i.e., behind another water tank not in the direct trajectory of the pellets released rendering it impossible of being hit from the gun shot fired by the appellants. Thus, from the conspectus of aforesaid analysis of the evidence available on record, we are not convinced that the prosecution has been able to establish, beyond reasonable doubt, that the ladies were hit by the gun shots fired by the appellants. As already held, the allegation that Banee Singh opened gun fire from place "A" could not be established on account; firstly, no empty cartridge was found from that place and secondly, from the testimony of the prosecution witnesses including the testimony of the Investigating Officer, it is disclosed that it was not possible to hit the ladies from the gun shot fired from place "A". Similarly, although, two empty cartridges were found at place "B" where the appellant-Muneem is alleged to have opened multiple gun shots; but, from the testimony of the injured witness, other eye [2026:RJ-JP:6809-DB] (12 of 14) [CRLAD-394/2018] witnesses and from the site plan, it is established that the victims were not in the direct trajectory of the gun shots. Furthermore, from the evidence on record, we are not satisfied that the prosecution has been able to establish motive behind commission of the offence. Although, in the case of ocular evidence, motive is not of much significance; but, in the instant case, the prosecution story suffers from the vice of self contradiction in this regard. While, in the parcha bayan, which, as already held by us, was made after much deliberation, it was specifically stated that there was no old enmity with the accused- party, however, Smt. Kamlesh, during her cross-examination as PW1, has stated that this averment was wrongly mentioned. She has further stated that Hansa (Hansraj) and Kailash were facing a trial with regard to beating of Banee Singh. Shri Dhara Singh as PW2 has claimed old enmity of the accused with the ladies. He has further stated that they were having enmity as goat of the accused party had come in their field whereupon, Banee was beaten by Hakim, Kailash, Atar Singh, Hansraj and Sahab Singh. Shri Ram Swaroop (PW3) has deposed that the enmity was on account of grazing of the goats and buffaloes by the accused-party in their field. He denies any previous litigation in between them. Shri Hansraj (PW6) though, has claimed to have been chased by the accused while going to meet the call of nature; but, has admitted, during his cross-examination that he ran about 60-70 meters to escape from the accused and despite being clearly visible to them and having opportunity to do so, they did not open any gun fire upon him. Further, he has denied any enmity of the accused with the ladies completely contradicting the testimony of [2026:RJ-JP:6809-DB] (13 of 14) [CRLAD-394/2018] Shri Dhara Singh (PW2). In view of aforesaid testimony, we are not convinced that the prosecution has been able to establish motive of the appellants in commission of the offence. Although, a 12 bore gun, allegedly used in commission of the offence by the appellants, has been recovered on the disclosure statement made by the appellant-Muneem; but, in view of the aforesaid discussion by us, wherein, we have found the ocular testimony to be highly doubtful, mere recovery would not be sufficient to uphold the findings of the guilt. In view of the aforesaid discussion and analysis of the evidence on record, we are of the considered view that the prosecution could not establish, beyond reasonable doubt, that the appellants are guilty of the charges levelled against them and the learned trial court has recorded their conviction ignoring the important aspects of the matter which has vitiated its findings. Accordingly, the appeal is allowed. The judgement impugned dated 19.09.2018 passed by the learned Additional Sessions Judge, Karauli in Sessions Case No.61/2015 (104/15) CIS 917/2015 is quashed and set aside and the appellants are acquitted of the charges framed against them. The sentence of appellant-Banee was suspended, therefore, his bail bonds are discharged. He need not surrender and shall be at liberty. The appellant-Muneem is in jail. He shall be released forthwith, if not required to be detained in any other case. In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellants are directed to furnish a personal bond in the sum of ₹25,000/- each, and a surety in the like amount before the Registrar (Judicial) of this [2026:RJ-JP:6809-DB] (14 of 14) [CRLAD-394/2018] Court which shall be effective for a period of six months with the stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (SAMEER JAIN),J (MAHENDAR KUMAR GOYAL),J RS/