[2026:RJ-JP:6103-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Criminal Appeal No. 377/2022

Gurucharan @ Babloo S/o Yadram, Aged About 29 Years, R/o

Village Nymadpur Police Station Halena, District Bharatpur

Rajasthan (At Present Under Judicial Custody Central Jail

Bharatpur)

----Appellant

Versus

State Of Rajasthan, Through P.P

----Respondent

For Appellant(s) : Mr. R B Sharma Ganthola

For Respondent(s) : Mr. Naresh Kumar Gupta, PP with

Mr. Vinod Sharma

Ms. Neha Goyal

Mr. Sukhdev Singh Solanki with

Mr. Abhishek Bhardwaj

Mr. Rituraj Soni

Ms. Barsha Kumari

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

1.Arguments Concluded on: 03.02.2026

2.Judgment Reserved on: 03.02.2026

3.Full Judgment/Operative Part

Pronounced:

Full Judgment

4.Pronounced on: 19.02.2026

(Per: HON’BLE SAMEER JAIN, J.)

1.By way of the instant criminal appeal, the accused-appellant

(hereinafter referred to as the ‘appellant’) has approached this

Court assailing the validity of the judgment and order of sentence

dated 05.11.2022 passed by learned Additional Sessions Judge,

Wair, District Bharatpur (hereinafter referred to as the ‘learned

Trial Court’) in Sessions Case No.44/2021 (CIS No.45/2021).

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2.Vide the impugned judgment, the learned Trial Court has

convicted and sentenced the appellant as under:

i) Under Section 460 IPC : Simple Imprisonment for ten

years with a fine of Rs.5,000/-; in default whereof, to undergo

three months of simple imprisonment.

ii) Under Section 302 IPC: Life imprisonment with a fine of

Rs.20,000/-; in default whereof, to undergo six months of simple

imprisonment.

iii) Under Section 3 read with Section 25 of the Arms

Act: Simple imprisonment for two years with a fine of Rs.3,000/-;

in default whereof, to undergo one month of simple imprisonment.

All sentences were directed to run concurrently. The fine

amount to the tune of Rs.20,000/- was directed to be paid as

compensation to the legal heirs of the deceased.

FACTUAL MATRIX OF THE LIS AT HAND:

3.Succinctly stated, the prosecution case unfolds from a

written report dated 14.11.2015 (Ex.P-8) filed by Ramkishan (PW-

9) at Police Station Halena, District Bharatpur, which was later

registered as FIR No. 289/15 (Ex.P-9). It was alleged that on the

intervening night of 13.11.2015, at around 11:30 PM, while the

informant was lying in bed and listening to music at his residence,

he heard the sound of a gunshot. Upon rushing to the courtyard,

the informant witnessed the appellant-Gurucharan@Babloo, firing

a gunshot at his brother, Jagdish (deceased), which hit him hard

on the stomach and hip region. The informant further stated that

he chased the appellant, who then fled away on a running

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motorcycle driven by another person, later identified as Abdul s/o

Rehman.

4.It was further alleged in the FIR that the motive attributed to

the commission of the said act was a prior animosity inter se the

parties and that the appellant had ingressed into the house of the

informant and threatened the entire family to withdraw the case

registered against the appellant regarding the abduction of a girl

belonging to the community of the informant and the deceased.

5.The deceased was initially taken to a hospital in Bharatpur

and thereafter referred to SMS Hospital, Jaipur where he

succumbed to his injuries. The FIR also discloses that on

14.11.2015, the appellant had issued threats to kill all the

brothers of the deceased via mobile phone; the specific mobile

numbers of the incoming threat calls to Satveer@Sattu (PW-10)

have categorically been specified in the FIR.

6. Upon registration of the said FIR, the investigation

commenced and the statements under Section 161 Cr.P.C. of

close relatives of the deceased, such as PW-9 (Ramkishan), PW-7

(Mohan Singh), PW-2 (Hariom), PW-3 (Bheem Singh), PW-6

(Rahul Kumar), PW-8 (Hemant), PW-5 (Kamal Singh @ Kalua),

PW-10 (Satveer @ Sattu), were recorded. The site plan was

formulated (Ex.P-7), panchnama was drawn (Ex.P-3), and the

Medical Board conducted the post-mortem of the body of the

deceased (Ex.P-6). The shirt of the deceased (Ex.P-5), the

cartridge which caused the injury/death (Ex.P-10), and blood

samples of the deceased were duly seized by the investigating

authorities.

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7.During the course of investigation, the appellant was

arrested on 06.12.2015. Pursuant to the recovery of a key

attached to the pendant of the appellant and as per the

information furnished under Section 27 of the Indian Evidence Act

(Ex.P-22), a country-made pistol and four live cartridges came to

be discovered/recovered on 08.12.2015 from the residence of the

appellant (Ex.P-12). A separate site plan of the place of recovery

was formulated (Ex.P-13). The seized articles were sent to the

FSL, and a ballistic report (Ex.P-34) was obtained qua the

recovered weapons.

8.The co-accused, namely Abdul, remained absconding and

investigation; under Section 173(8) of the Cr.P.C , was kept

pending against him. A detailed charge-sheet was filed qua the

appellant. Thereafter, charges were framed and the appellant had

disputed the same and claimed trial. After a full-fledged trial, the

appellant was convicted and sentenced as stated above.

SUBMISSIONS PUT FORTH ON BEHALF OF THE APPELLANT

9. Assailing the impugned judgment, learned counsel for the

appellant submits that the findings of the learned Trial Court are

based on conjectures and surmises. It is contended that the

conviction of the accused rests on legally inadmissible evidence. It

is submitted that there has been an unexplained delay of

approximately 18 hours in lodging the FIR, which casts a shadow

of doubt on the prosecution story. It is averred that the entire

case of the prosecution hinges upon the testimony of interested

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witnesses i.e., the relatives of the deceased, and the testimony of

independent witnesses was not paid much consideration by the

learned Trial Court. It is further submitted that the theory put

forth by the eyewitnesses, when nobody witnessed the incident

firsthand, is not tenable. It is next submitted that the instant case

rests purely on circumstantial evidence and the said chain of

circumstances leading to the irresistible conclusion of the guilt is

ill-founded. It is further contended that there have been glaring

inconsistencies and stark contradictions amongst the contents

recorded in the FIR, the statements recorded during the trial, and

the statements recorded during the cross-examinations. It is also

submitted that the prosecution story regarding threats on

14.11.2015 is not tenable as there was neither any recovery of

the mobile phone used for the alleged threats, nor were any Call

Detail Records (CDR) produced to substantiate the same. It is

next averred that the material evidence in the instant case, i.e.,

the country-made pistol and four live cartridges recovered from

the appellant, cannot be relied upon as the independent witnesses

to the seizure memo turned hostile and the said recovery has

been given the color of a tainted and planted recovery. In light of

the said argument, learned counsel has relied upon the dictum

encapsulated by the Hon'ble Supreme Court in Raja Khan v.

State of Chhattisgarh (Criminal Appeal No. 70/2025) ,

submitting that once a witness to the seizure of material evidence

turns hostile, the same cannot be relied upon. It is further

contended that the appellant was detained in the custody at

Ujjain, Madhya Pradesh, for the period starting from 10.11.2015

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to 17.11.2015 and therefore, the presence of the appellant at the

place of incident in the intervening night of 12.11.2015 and

13.11.2015 is not possible under any circumstance, and the entire

story of the prosecution seems to be planted. It is argued that at

the time of alleged incident, the family members of the deceased,

who are alleged to be eyewitnesses in the instant case, were in

different portions of the house and could not have witnessed the

commission of the alleged offence. It is next submitted that it is

improbable that despite the presence of more than half a dozen

relatives of the deceased, the appellant entered the house of the

informant armed with a loaded gun at late hours of 13.11.2015

and managed to escape on a running motorcycle with the co-

accused after committing the murder of the deceased. It is also

submitted that despite the presence of so many relatives, no

attempt was made to restrain the appellant, nor did any

resistance or altercation took place at the place of incident. It is

further contended that neither the co-accused, namely Abdul, has

been arrested, nor the said motorcycle has been recovered till

date. It is next submitted that nothing has been produced on

record qua the story and motive that the appellant has abducted a

girl belonging to caste of the deceased, and therefore, there was

no existence of any motive to commit the said act. Further,

learned counsel has placed reliance upon Exhibits D-2/A and D-3,

which categorically reflect that a compromise was executed inter

se the appellant and the informant/deceased’s family.

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SUBMISSIONS PUT FORTH ON BEHALF OF RESPONDENTS:

10.Per contra, learned Public Prosecutor and learned counsel for

the complainant submit that the prosecution has been able to

prove the case against the appellant beyond reasonable doubt. It

is submitted that in the instant case, there was a clear motive

behind the commission of the said offence by the appellant and

the same has been corroborated by the evidence available on

record. It is next submitted that there has been recovery o f a

country-made pistol and four live cartridges, and the scientific

evidence, such as the FSL report (Ex.P-33) and the ballistic report

(Ex.P-34), evidently corroborates the ocular testimony. It is

contended that the cause of death as cited in the post-mortem

report (Ex.P-6) supported the fact that the injury has been caused

by the recovered weapon. It is averred that there has been a

large number of criminal antecedents registered against the

appellant, and that the material available on record reveals that

the plea of alibi as taken by the appellant is nothing but a sham,

myth, and fraud. It is next contended that a case of abduction of a

girl was ongoing against the appellant and the appellant had been

continuously threatening the family of the deceased to not give

testimony in the said case. It is also alleged in the FIR that on

12.11.2015, the appellant had trespassed into the house of the

deceased and issued serious threats to the entire family. Lastly, it

is submitted that the statements recorded by the prosecution

witnesses have established the fact that all the witnesses have

spoken in one voice, and minor inconsistencies and contradictions

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do not dilute/vitiate either the veracity of their testimony or the

case of the prosecution.

Reliance in this regard has been placed upon the dictum laid

down by the Hon’ble Supreme Court in the case of Mallikarjun &

Ors. v. State of Karnataka, (2019) 8 SCC 359 and

Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat,

(2011) 11 SCC 111, and the ratio laid down by the Bombay High

Court in the case of Dattu Rohidas More v. The State of

Maharashtra, Criminal Appellate Jurisdiction Appeal No.

455/2021, refuting the claim of the appellant.

FINDINGS AND ANALYSIS:

11.Heard the arguments advanced by learned counsel for the

parties, gone through the case laws cited at the Bar, scanned the

material available on record, and perused the impugned judgment

and the paper-book.

12.After hearing the matter at length and considering the

material available on record, we arrive at the following findings:

12.1 The instant case unfolds from FIR no. 289/15, registered on

14.11.2015 by the brother of the deceased (PW-9), and the said

FIR discloses that on 13.11.2015 at around 11:30 PM, the

appellant, being equipped and armed with a loaded gun, entered

the informant’s house. It further discloses that the murder of the

informant’s brother, namely Jagdish (deceased), was committed

by inflicting a fatal gunshot injury with an ill and ulterior motive of

threatening and intimidating the witnesses, who were close

relatives of the deceased and acting/deposing against the

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appellant in a matter regarding the abduction of a girl belonging to

the community of the deceased. Moreover, the said FIR discloses

that immediately after firing the gunshot, the appellant managed

to escape from the place of incident on a running motorcycle

driven by another person.

12.2The said fact has been buttressed by the judgment dated

16.07.2021 (Ex.D-1/A), produced by the learned counsel for the

accused himself, which bears testimony to the existence of the

said dispute/case registered under the POCSO Act, and therefore,

the ulterior motive of the appellant behind commission of the said

act cannot be denied and the same has duly been established.

12.3The cross examinations and statements recorded by PW-9

(Ramkishan), PW-4 (Harveer Singh), PW-7 (Mohan Singh), PW-8

(Hemant), PW-6 (Rahul Kumar), and PW-5 (Kamal Singh @ Kalua)

have, in one voice, reflected that on 14.11.2015 at around 11:30

pm, the appellant arrived at the house of the deceased on a

motorcycle along with the co-accused Abdul, who is absconding till

date, and fired a gunshot. The site plan reflects that the witnesses

were present in the same house and that their presence in their

residence at such late hours is natural. The argument adopted by

learned counsel for the appellant that the witnesses lived in

different portions of the house does not discredit their ability to

witness the incident.

12.4The ocular testimony of the witnesses is wholly and duly

supported by the scientific evidence. The post-mortem report qua

the deceased (Ex.P-6) expressly confirms the cause of death. The

bullet recovered from body of the deceased was sent for FSL

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analysis. The FSL report (Ex.P-33) and the ballistic report (Ex.P-

34) confirm that the bullet recovered from the body of the

deceased had been fired from the country-made pistol which has

been discovered from the residence of the appellant in

consequence of the information received by the Investigating

Officer from the appellant under Section 27 of the Evidence Act

(Ex.P-22). The testimony of the Investigating Officer, namely

Premprakash (PW-19) , and the medical expert, namely Dr.

Mahendra Singh (PW-16), further corroborates the said fact and

the testimony of the other witnesses.

12.5As far as the contention of learned counsel for the appellant

regarding the fact that all the witnesses to the seizure memo have

turned hostile is concerned, it is settled law that if the testimony

of the Investigating Officer (PW-19) is trustworthy and

corroborated by other evidence such as the FSL report and the

ballistic report, the hostility of panch witnesses is of no

consequence and the recovery cannot be discarded merely on the

said ground. The Co-ordinate Bench of this Court in the case of

Nidhi Sharma v. State of Rajasthan, 2015 (4) RLW 3190

(Raj.) has categorically held that:

“85. In the case of Modan Singh v. State of Rajasthan:

(1978) 4 SCC 435) and in the case of Surendra Singh

v. State of Haryana: (2006) 9 SCC 247), the Hon'ble

Supreme Court has opined that "in case the recovery

witnesses were to admit their signatures on the

recovery memo, but were to turn hostile, then the court

should believe the contents of the recovery memo and

deposition of the investigating officer." Therefore, the

learned counsel for the appellant are unjustified in

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claiming that merely because the recovery witnesses

have turned hostile, the recovery should be disbelieved.

In the present case, the recovery witnesses have

admitted their signatures on the recovery memo.

Although some of them have turned hostile, but under

the principles prescribed by the Hon'ble Apex Court this

court has to believe the contents of the recovery memo

and the deposition of the investigating officer.”

(emphasis supplied)

The Hon'ble Supreme Court in the dictum of Surender Singh v.

State of Haryana, (2006) 9 SCC 247 has further held that:

“6. So far the minor discrepancy, which has been

pointed to us, we are of the view that it is not of such a

nature, which creates infirmity in the prosecution's

case. It is a well-established principle of law that every

discrepancy in the witness statement cannot be treated

as a fatal to the prosecution case. The discrepancy,

which does not affect the prosecution case materially,

does not create infirmity.

7. With regard to PWs 3 and 4 panch witnesses being

turned hostile, this contention was also well considered

by the Trial Court and the High Court. And both the

courts held that their statements do not affect

materially the prosecution story. PW-3 stated that

pistol or cartridges or currency notes mentioned in

Ex.PC were not recovered in his presence. He, however,

admitted his signatures over Ex.PC and Ex.PD. PW-4

also stated that the pistol, cartridges or currency notes

mentioned in Ex.PC were not recovered in his presence.

He also admitted that Ex.PC and Ex.PD bear his

signatures. Therefore, both the courts correctly held

that the Ex.PC and Ex.PD were recovered in the

presence of PWs 3 and 4 who were panch witnesses. ”

(emphasis supplied)

Further, the Hon'ble Apex Court in the case of Mallikarjun & Ors.

v. State of Karnataka (supra) on the same lines has also held

that:

“23. As pointed out earlier, based on the disclosure

statement of Accused No. 1, MO-1-dagger which was

kept hidden in the haystack of fodder in the loft of the

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cattle shed behind the house of Accused No. 1 had

been seized under Ex.-P9-Panchnama in the presence

of panch witnesses PW-8-Chandrappa and PW-9-

Mahadevappa Needgera. The said panch witnesses

have not supported the prosecution case and turned

hostile. MO-2-dagger and MO-3-handle of the axe were

recovered from the scene of occurrence under Ex.-P7-

spot panchnama. On behalf of the Accused, learned

Senior Counsel contended that the evidence of PW-17-

PSI as to the recovery of MO-1-dagger at the behest of

Accused No. 1 is doubtful and when PWs 8 and 9 have

turned hostile, no weight could be attached to the

alleged recovery of MO-1-dagger. There is no merit in

the contention that merely because the panch

witnesses turned hostile, the recovery of the weapon

would stand vitiated. It is fairly well settled that the

evidence of the Investigating Officer can be relied upon

to prove the recovery even when the panch witnesses

turned hostile. In Rameshbhai Mohanbhai Koli v. State

of Gujarat and Ors.: (2011) 11 SCC 111, it was held as

under:

33. In Modan Singh v. State of Rajasthan: (1978) 4

SCC 435 it was observed (at SCC p. 438, para 9) that

where the evidence of the investigating officer who

recovered the material objects is convincing, the

evidence as to recovery need not be rejected on the

ground that seizure witnesses did not support the

prosecution version. Similar view was expressed in

Mohd. Aslam v. State of Maharashtra: (2001) 9 SCC

362.

34. In Anter Singh v. State of Rajasthan : (2004) 10

SCC 657, it was further held that: (SCC p. 661, para

10)

10. ... even if panch witnesses turn hostile, which

happens very often in criminal cases, the evidence of

the person who effected the recovery would not stand

vitiated.

35. This Court has held in a large number of cases

that merely because the panch witnesses have turned

hostile is no ground to reject the evidence if the same

is based on the testimony of the investigating officer

alone. In the instant case, it is not the case of defence

that the testimony of the investigating officer suffers

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from any infirmity or doubt. (Vide Modan Singh case,

Krishna Gopal case and Anter Singh case.)….”

(emphasis supplied)

Moreover, we have perused the ratio laid down by the Hon'ble

Apex Court in Safi Mohd. v. State of Rajasthan: (2013) 8 SCC

601, wherein it has been held that:

“20. After referring to the evidence of the PW-22 and

PW-24 the search of the house of the Appellant and

seizure of certain documents along with diary

particularly Ex D-3, handwritten map prepared with

certain markings, it has proved the prosecution case.

No doubt the independent witnesses have turned

hostile, but the learned sessions judge has rightly

accepted the testimony of the police witnesses after

proper appreciation of their evidence and he has rightly

placed reliance upon the police witnesses to prove the

seizure of the documents from the house of the

Appellant and therefore the same cannot be held to be

bad in law as contended by the learned Counsel for the

Appellant.”

(emphasis supplied)

Lastly, in the ratio enunciated by the Hon'ble Supreme Court in

the case of Chetan v. The State of Karnataka, (2025) 9 SCC

31:-

"11.1 For the reasons discussed above, on consideration

of the circumstantial evidences and other proven facts,

in our considered opinion, a clear pattern emerges out

of the circumstances so proved with inferential and

logical links which unmistakably points to the guilt of

the Appellant for committing murder of the deceased

Vikram Shinde, punishable Under Section 302 of the

Indian Penal Code and also for committing offences

Under Section 404 of the Indian Penal Code and

Sections 3 and 5 of the Arms Act,1959 punishable

Under Sections 25 and 27 of the Arms Act.

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These proved circumstances considered individually or

taken together do not indicate the involvement of

anyone else other than the Appellant.

In the circumstances so proved, the possibility of any

other person being responsible for the death being ruled

out, it can be safely said that the Prosecution has been

able to prove the charges against the Appellant beyond

reasonable doubt. There can thus be no doubt that no

one else other than the Appellant could have committed

the crime.

11.2. For the foregoing reasons, we are of the view that

no material illegality has been committed by the Trial

Court and the High Court in appreciating the evidence

against the Appellant nor it can be said that any gross

injustice has been caused to the Appellant by the

impugned judgment by misreading or ignoring any

material evidence."

(emphasis supplied)

12.6As far as the plea of alibi taken by the appellant is

concerned, we are of view that the submissions put forth qua the

fact that the appellant was in custody in Ujjain, Madhya Pradesh,

for the period starting from 10.11.2015 to 17.11.2015 are found

to be a subterfuge. The said fact has further been corroborated by

Exhibit P-32 which reflects that a case of forgery/fraud was

registered at Ujjain, Madhya Pradesh, against the appellant qua

the making of false and fabricated custody documents.

Furthermore, the appellant has miserably failed to adduce any

cogent evidence during the trial to substantiate the said claim.

Rather, an adverse inference is drawn against the appellant for

raising a false plea of alibi based on forged and fabricated

documents.

12.7Qua the submission put-forth by the learned counsel for the

appellant vis-a-vis the improbability of the commission of the

offence, as despite presence of approximately half a dozen close

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relatives/witnesses, who were located in close surroundings of the

house, at the time of incident, and that it is highly improbable for

the appellant to escape the place, we upon a perusal of the

material available on record i.e. the site plan (Ex.P-7) and the

testimony given by the close relatives of the deceased such as

PW-9 (Ramkishan), PW-7 (Mohan Singh), PW-2 (Hariom), PW-3

(Bheem Singh), PW-6 (Rahul Kumar), PW-8 (Hemant), PW-5

(Kamal Singh @ Kalua), PW-10 (Satveer @ Sattu), are opined to

jot down the following findings:

i)Being equipped with a loaded gun, the appellant trespassed

into the house of the deceased during the late hours of

13.11.2015.

ii)The appellant, well prepared and with an ulterior motive, as

stated above, inflicted a gunshot injury at the stomach and hip

region of the deceased.

iii)The house in which the said incidence occurred was

segmented, and the witnesses were present in different portions

of the said house.

iv)Immediately, after firing the gunshot, the appellant while

pointing the gun towards the witnesses managed to escape from

the place of incident with the co-accused Abdul, on a running

motorcycle.

Therefore, as in presence of ulterior motive and culpable

state of mind of the appellant and taking note of the fact that the

appellant was equipped with a loaded firearm and the witnesses

were scattered across different portions of the house, as

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corroborated by the site plan (Ex.P-7), we are of the view that the

appellant manage to escape from the place of incidence.

12.8We are of view that the reliance placed upon Exhibits D-2/A

and D-3 (compromise deeds executed inter se the parties) is

misconceived. Firstly, the commission of an offence under Section

302 IPC is heinous and non-compoundable in nature. Secondly, no

emphasis on the said compromise deeds was laid by the appellant

during the statement recorded under Section 313 of the Cr.P.C.

Therefore, we are of view that the said compromise executed

between the parties is not valid in the eyes of law.

13.Considering the overall facts and circumstances of the

instant case, submissions put forth by learned counsel for the

parties, looking upon the material available on record, coupled

with the consistent ocular testimony of the witnesses, and taking

note of the recovery of the weapon from the residence of the

appellant, the positive FSL report, and the failure of the appellant

to substantiate the plea of alibi, we are of view that the

prosecution has been able to establish the case qua the appellant

beyond any reasonable doubt.

14.In light of the above, we are of the considered view that the

findings and reasoning given by the learned Trial Court in the

impugned judgment, relying upon the dicta encapsulated by the

Hon'ble Supreme Court in the case of Munshi Prasad & Ors v.

State of Bihar, (2002) 1 SCC 351 and Appabhai & Anr. v.

State of Gujarat, 1988 (Supp) SCC 241 , are sound and the

same suffer from no infirmity.

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15.Accordingly, the present criminal appeal is dismissed. The

impugned judgment of conviction and order of sentence dated

05.11.2022 passed by the learned Additional Sessions Judge,

Wair, District Bharatpur in Sessions Case No.44/2021 is upheld.

Pending applications, if any, also stand disposed of.

(SAMEER JAIN),J (MAHENDAR KUMAR GOYAL),J

Pooja /111