Reserved On: 24.12.2025

Delivered On:07.01.2026

IN THE HIGH COURT OF UTTARAK HAND AT NAINITAL

Criminal Appeal No. 182 of 2017

Rajendra Kumar Arya .... Appellant

Vs.

State of Uttarakhand ....Respondent

Present:

Mr. Arvind Vashistha, Senior Advocate, assisted by Mr.

Rachit Manglik, Advocate for the appellants.

Ms. Manisha Rana Singh, D.A.G. for the State.

JUDGMENT

Coram: Hon’ble Ravindra Maithani, J.

Hon’ble Alok Mahra, J.

Per: Hon’ble Ravindra Maithani, J.

Instant appeal is preferred against the judgment and

order dated 28.06.2017/30.06.2017, passed in Sessions Trial No. 107

of 2014, State Vs. Rajendra Kumar Arya, by the court of First

Additional Sessions Judge, Haldwani, District Nainital. By it, the

appellant Rajendra Kumar Arya has been convicted under Section 302

and 224 IPC and sentenced as hereunder:-

(i) Under Section 302 IPC:- to undergo life imprisonment

with a fine of Rs.10,000/-. In default of payment of

fine, to undergo simple imprisonment for a further

period of six months.

(ii) Under Section 224 IPC:- to undergo rigorous

imprisonment for a period of two years.

2. According to the prosecution case, on 27.05.2014, the

appellant was detained at Reporting Out Post (“ROP”) Mukhani, Police

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Station Haldwani with regard to the FIR No. 276 of 2014, under

Section 379, 411 IPC. He was under the supervision of the deceased

Constable Police 234 Surendra Singh. At about, 3:25 in the morning,

on 28.05.2014, the appellant tried to run away from the custody of

police and when the deceased Surendra Singh tried to apprehend him,

the appellant hit the deceased with iron sariya , due to which, the

deceased died. The deceased was apprehended and iron sariya

recovered. The report of the incident was lodged by PW 2 SI Lalit

Mohan Joshi, who was In-charge of ROP Mukhani at the relevant time,

which is Ex. A3. Based on which, chik FIR Ex.A13 was recorded at

Police Station Haldwani at 05:55 a.m. on 28.05.2015 and Case Crime

No. 277 of 2014, under Section 302 and 224 IPC was lodged. The

extract of General Diary (“GD”) entry is Ex. A14. The inquest of the

deceased was done on 28.05.2014, after 08:10 a.m.; the report is Ex.

A8; post mortem of the deceased was done on 28.05.2014 at 11:40

a.m. The doctor conducting post mortem found injuries on the person

of the deceased. According to the post mortem report, the cause of

death was shock and hemorrhage, as a result of stab injury of heart,

as described in the injury no.1 of the post mortem report caused by

pointed blunt weapon. The clothes worn by the appellant, the

witnesses and iron sariya were sent for forensic examination. The

report confirms that all those articles contain blood of Group “O”.

3. On 04.12.2014, charge under Section 224 and 302 IPC

was framed against the appellant, to which, he denied and claimed

trial.

4. In order to prove its case, prosecution examined fifteen

witnesses, namely, PW1 Dr. C.P. Bhaisoda, PW2 SI Lalit Mohan Joshi,

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PW3 SI Laxman Singh Jagwan, PW4 Amit Chandra Joshi, PW5

Harveer Singh, PW6 Umesh Chandra Joshi, PW7 Head Constable,

Amar Singh Adhikari, PW8 Constable Ravi Kumar, PW9 Satyajeet

Singh Rana, PW10 Constable Dalip Kumar, PW11 SI Umed Singh

Danu, PW12 Constable Navindra Kumar, PW13 Constable Tarun

Pandey, PW14 Constable Nirmal Singh Latwal and PW15 SSI Trilok

Ram Bagretha.

5. After prosecution evidence, the appellant was examined

under Section 313 of the Code of Criminal Procedure, 1973 (“the

Code”). According to him, he has been falsely implicated. The appellant

has stated that on 27.05.2014, in the evening at about 6:30, police

had taken him to the police station and at about 9:30, he and the

owner of the Scooty were released by the police. The police took his

clothes 2-3 days after the incident.

6. After hearing the parties, by the impugned judgment and

order, the appellant has been convicted and sentenced, as stated

hereinbefore. Aggrieved, the appeal.

7. Heard learned counsel for the parties and perused the

record.

8. Learned senior counsel for the appellant submits that the

entire prosecution case is false; the appellant has been falsely implicated. He submits that if the appellant was arrested in a theft

case, it has not been established by the prosecution as to when he was

brought to ROP Mukhani? When was the FIR under Section 379 IPC

lodged? The GD of lodging of the FIR, under Section 379 IPC

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against the appellant has not been proved by the prosecution. Learned

senior counsel also raised the following points in his submission:-

(i) How could sariya be lying in the premises of ROP

Mukhani?

(ii) If the appellant was handcuffed in a theft case, how

could he escape? How could he open the handcuffs?

And how the keys of the handcuffs were found by

the appellant?

(iii) The inquest report also doubts the prosecution case.

It records that at 08:10 a.m. on 28.05.2014, PW3 SI

Laxman Singh Jagwan informed about the death. It

is argued that prior to it at 05:55 a.m., on

28.05.2014, FIR was already lodged. Why FIR

number was not recorded in the inquest report?

(iv) If PW2 SI Lalit Mohan Joshi was in the hospital,

when the deceased Surendra Singh died, what was

the need for the hospital to send ward boy memo

about the death of the deceased Surendra Singh at

ROP Mukhani.

(v) ROP Mukhani is in the residential area adjoining

the main pathway. In such a situation, why

independent witnesses were not interrogated by the

Investigating Officer?

(vi) The conviction is also based on the material that

was placed in a theft case against the appellant. The

material, which was placed in the theft case and

which was not put to the appellant under Section

313 of the Code cannot be read into evidence.

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(vii) The dying declaration is not reliable because it is

not possible that a person who has a wound on his

chest could speak as to how did he die?

9. Learned senior counsel also submits that if prosecution

case is also believed, it reveals that the appellant was brought at ROP

Mukhani with regard to the theft of a Scooty and the appellant had

then stated that he had taken it with the help of one Aslam. The

appellant was at ROP Mukhani and in an attempt to escape, when he

was chased by the deceased Surendra Singh, the deceased was hit

with a sariya , which was lying in the premises of ROP Mukhani. It is

argued that even if the prosecution case is believed, the offence does

not fall under Section 302 IPC, instead it falls under Exception 4 to

Section 300 IPC. It reads as follows:-

“Exception 4.-Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in the heat

of passion upon a sudden quarrel and without the offender

having taken undue advantage or acted in a cruel or unusual

manner.

Explanation.- It is immaterial in such cases which party

offers the provocation or commits the first assault.”

10. It is argued that as per prosecution also, the act was

without premeditation in a sudden fight and heat of passion upon a

quarrel. The appellant did not take any undue advantage and did not

act in any cruel or unusual manner. Therefore, it is argued that this

act falls under Section 304 Part-II IPC.

11. On the other hand, learned State counsel submits that the

appellant has committed a grave offence, while in the custody of the

police, he tried to run away and when deceased Surendra Singh tried

to apprehend him, he hit the deceased Surendra Singh with a sariya

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due to which, deceased Surendra Singh died. It is argued that multiple

witnesses have proved this incident. There is immense material to

show that the appellant was at ROP Mukhani with regard to a theft

case. There are GD entries with regard to his interrogation, departure

from ROP Mukhani in search of Aslam as well as return of the

appellant with police party at ROP Mukhani at 02:55 on 28.05.2014. It

is argued that these factors establish that the appellant was in the

police custody in an FIR relating to theft. Learned State counsel also

raised the following points in her arguments:-

(i) It is not necessary that inquest should contain the

FIR number.

(ii) PW3 SI Laxman Singh Jagwan has categorically

stated about the incident. He had informed the

higher officers and it is proved by GD Report No. 9,

04:20 a.m. of 28.05.2014 of ROP Mukhani, (Ex.

A26) that SDM will be informed about the death. It

is argued that it is this information, which is

recorded in the inquest report. In support of her

contention, she had relied upon the principles of

law, as laid down by the Hon’ble Supreme Court, in

the case of Radha Mohan Singh alias Lal Saheb and

others Vs. State of UP, (2006) 2 SCC 450. In the

case of Radha Mohan Singh (supra), the Hon’ble

Supreme Court observed as follows:-

“14. The language of the aforesaid

statutory provision is plain and simple and

there is no ambiguity therein. An investigation

under Section 174 is limited in scope and is

confined to the ascertainment of the apparent

cause of death. It is concerned with discovering

whether in a given case the death was

accidental, suicidal or homicidal or caused by

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animal and in what manner or by what weapon

or instrument the injuries on the body appear

to have been inflicted. It is for this limited

purpose that persons acquainted with the facts

of the case are summoned and examined under

Section 175. The details of the overt acts are not

necessary to be recorded in the inquest report.

The question regarding the details as to how the

deceased was assaulted or who assaulted him

or under what circumstances he was assaulted

or who are the witnesses of the assault is

foreign to the ambit and scope of proceedings

under Section 174. Neither in practice nor in

law is it necessary for the person holding the

inquest to mention all these details.”

(iii) The sariya was lying in the premises of the ROP

Mukhani and the appellant, while running away,

picked it up and stabbed the deceased Surendra

Singh.

12. How the handcuffs were escaped? With regard to it,

learned State counsel could not give any explanation.

13. Learned State counsel also submits that when the

deceased Surendra Singh died in the hospital, the hospital authorities,

as a normal procedure, informed about the death to ROP Mukhani,

which is Ex. A26. It is argued that it does not doubt, in any manner,

the prosecution case. With regard to the interrogation of the

independent witnesses, it is argued that in the odd hours, the killing

of the deceased Surendra Singh was done. There are reliable witnesses

to it. Mere absence of independent witnesses does not doubt the

prosecution case. Learned State counsel also argued that admittedly,

in a theft case, the appellant has been convicted. He was brought at

the ROP Mukhani in a theft case. Therefore, reference to any material

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of a theft case, in any manner, does not doubt the prosecution case.

With regard to the dying declaration, learned State counsel states that

when the deceased was approached by the witnesses, the deceased

revealed that he was hit by the appellant. It is argued that it cannot be

said that the kind of injury the deceased sustained, would have made

it impossible for him to speak, what he did.

14. Before the arguments are appreciated, it would apt to

examine as to what the witnesses have stated.

15. PW1 Dr. C.P. Bhaisoda has conducted post mortem of the

deceased on 28.05.2014 at 11:40. According to him, he found the

following injuries on the person of the deceased:-

“(1) Stab wound of size 1.5 x 1.1cm present over lef t side of

the chest oval and irregular in shape 16 cm below from

the clavicle and 5 cm left from the mid line, margin of

wound irregular and Abraded, blood with blood clots

present on exploration of the wound Perforating the

chest walls, Pericardial sac and wound reaching inside

the left ventricle of the heart and pericardial sac and all

chambers of heart full of Blood with blood clots and left

thoracic cavity filled with blood and blood clots depth of

the wound 6.6 cm.

(2) Stab wound of size 1.4 x 1 cm present over front of

chest on right side, 14 cm below from the clavicle and 8

cm right from the mid line margin of the wound,

irregular, abraded and blood with the blood clots

present over the margin on exploration of the wound it

is muscle deep only and infiltration of the blood present

oval and irregular in shape.”

According to him, the injuries could have been caused by

iron sariya .

16. PW2 SI Lalit Mohan Joshi is the star witness. He is the

informant. According to him, on 27.05.2014, he was In-charge of ROP

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Mukhani. On that date, PW4 Amit Chandra Joshi alongwith PW6

Umesh Chandra Joshi and others brought the appellant alongwith

Scooty Activa black in colour bearing Registration No. UK04F281 (“the

Scooty”) at ROP Mukhani and told that the Scooty was stolen from the

Base Hospital Haldwani on 06.05.2014 and on 27.05.2014, when

these persons were returning, they spotted the Scooty at 9:30 near

Laldaat. The appellant was holding that Scooty, therefore, he was

brought to ROP Mukhani. Thereafter, according to PW2 SI Lalit Mohan

Joshi, PW4 Amit Chandra Joshi gave an FIR with regard to the Scooty.

Based on which, FIR No. 276 of 2014, under Sections 379, 411 IPC

was lodged at ROP Mukhani against the appellant and an investigation

was entrusted to PW3 SI Laxman Singh Jagwan, who interrogated

PW4 Amit Chandra Joshi. The appellant was kept at ROP Mukhani

under the supervision of PW12 Constable Navindra Kumar. On

28.05.2014 at 12:30 in the midnight, the appellant was interrogated

by this witness and PW3 SI Laxman Singh Jagwan. Then the appellant

pleaded guilty and said that he alongwith one Aslam had stolen the

Scooty on 06.05.2014 from the Base Hospital campus. Thereafter,

according to PW2 Lalit Mohan Joshi, the police party left ROP

Mukhani in search of Aslam at 12:40, but they did not find him. They

returned at ROP Mukhani at 02:55 a.m. in the morning. Thereafter,

the appellant was given in the supervision of Constable 234 Surendra

Singh. He was handcuffed. He was made to sit in the office. This

witness directed PW3 SI Laxman Singh Jagwan, Constable Keshar

Singh and PW8 Constable Ravi Kumar to have another round of

patrolling in the city and return at about 3:30, so that again Aslam

may be searched. At that time, PW14 Constable Nirmal Singh Latwal

was also in the ROP Mukhani campus.

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17. According to PW2, SI Lalit Mohan Joshi at about 3:25,

when he was in the washroom, he suddenly heard Constable Surendra

Singh shouting that the appellant is running away. At it, this witness

immediately came outside the washroom and saw the Constable

Surendra Singh holding hands of the appellant in front of the barrack.

The appellant then told “leave me otherwise I will kill you” and

suddenly picked up iron sariya from the ground and hit Surendra

Singh, on his chest. Thereafter, the appellant ran towards the west

gate of the ROP, Mukhani. This witness also ran after the appellant.

Meanwhile, from the eastern gate of ROP Mukhani, PW3 SI Laxman

Singh Jagwan, alongwith other police personnel and PW14 Constable

Nirmal Singh Latwal reached there and the appellant was

apprehended alongwith iron Sariya at about 03:30 a.m. The appellant

was handed over to the custody of PW3 SI Laxman Singh Jagwan and

Constable Keshav Singh. This witness PW2 SI Lalit Mohan Joshi

alongwith PW14 Constable Nirmal Singh Latwal and PW8 Constable

Ravi Kumar reached to Constable Surendra Singh, who with difficulty

told that when the appellant was running, he caught hold of him and

the appellant hit him with iron sariya . He should be rushed to the

hospital. Thereafter, Surendra Singh was taken to hospital, but he was

declared brought dead.

18. According to PW2 SI Lalit Mohan Joshi, he informed the

incident to SHO, Haldwani. He came back to ROP Mukhani, where

PW3 SI Laxman Singh Jagwan was preparing recovery memo of the

arrest of the appellant and recovery of iron sariya , which this witness

also signed. He has proved Ex. A2, recovery memo. He also proved the

FIR Ex. A3, which he subsequently, lodged at Police Station Haldwani.

According to him, on 04.06.2014, the Investigating Officer took the

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uniform of PW8 Constable Ravi Kumar into custody, which had blood

stains. The Investigating Officer also took into custody the handcuffs

alongwith rope and keys, with which the appellant was handcuffed on

the date of incident, by which, he released his hands.

19. PW3 SI Laxman Singh Jagwan has corroborated the

statement of PW2 SI Lalit Mohan Joshi. According to him, when the

appellant was apprehended, he arrested him and recovered the iron

sariya and prepared its recovery memo Ex. A2. He also prepared other

documents, including arrest memo etc. He is also a witness of inquest.

According to him, he had informed Pargana Magistrate for inquest by

writing a letter.

20. PW8 Constable Ravi Kumar and PW14 Constable Nirmal

Singh Latwal have also corroborated the statement of PW2 SI Lalit

Mohan Joshi. They both were also present when the incident took

place at ROP Mukhani.

21. PW4 Amit Chandra Joshi is the person, whose Scooty was

stolen on 06.05.2014 and who spotted his Scooty on 27.05.2014,

when the appellant was trying to start it. According to him, they took

the appellant alongwith the Scooty at ROP Mukhani and gave an

application at 10:30 p.m. at ROP Mukhani on 27.05.2014. Police did

all the documentation and took his signatures on it. Thereafter, he left

the Scooty and the appellant in the ROP Mukhani and returned to his

house.

22. PW5 Harveer Singh was working as Sub Divisional

Magistrate, Haldwani. According to him, on 28.05.2024, he received a

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communication from PW3 SI Laxman Singh Jagwan with regard to

killing of Constable Surendra Singh. He prepared inquest report Ex.

A8. He also proved other documents.

23. PW6 Umesh Chandra Joshi was also accompanying PW4

Amit Chandra Joshi, when they took the Scooty alongwith the

appellant at ROP Mukhani and lodged the report and returned.

24. PW7 Head Constable Amar Singh Adhikari has proved the

chik FIR Ex. A13 and GD entries of lodging of the case against the

appellant Ex. A14. This witness has also stated that the appellant had

blood on his clothes, therefore, an information of his arrest was given

to his home and his clothes were also brought from his home and he

was given his clothes to change. He has proved those documents, by

which the clothes of the appellant were taken into custody. He proved

those articles, as well.

25. PW9 Satyajeet Singh Rana is also the person, in whose

presence, the clothes of the appellant were taken into custody, which

has blood stains, which has been proved by PW7 Head Constable

Amar Singh Adhikari, of which, recovery memo Ex. A16 has been

proved by these two witnesses. He has also proved the specimen seal,

as well.

26. PW10 Constable Dalip Kumar tells that he had taken the

articles of this case from the police station to the court and from there

to Forensic Science Laboratory (“FSL”). He has proved the documents

accordingly.

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27. PW11 SI Umed Singh Danu has investigated the matter.

According to him, he has interrogated the appellant, who had admitted

his guilt, of which, the documentation Ex. A17 was done. It is basically

a confession of the appellant that was recorded by the police. How is it

admissible? A confession made before the police cannot be read into

evidence. This witness has also proved the recovery memo of the plain

and blood stained soil and proved those documents.

28. PW12 Constable Navindra Kumar was on Sentry duty at

ROP Mukhani till 12:00 in the midnight and thereafter, the duty was

changed and given to deceased Surendra Singh. This witness has

stated that during his duty at about 10:30, PW4 Amit Chandra Joshi

alongwith others brought the appellant and his Scooty at the police

station, saying that the Scooty was stolen from the Base Hospital,

Haldwani. They had spotted the appellant in the Scooty. Thereafter,

based on the report of PW4 Amit Chandra Joshi, FIR was lodged. The

appellant was made to sit in the ROP Mukhani in his Sentry duty. At

24:00 hours, according to him, he handed over the Sentry duty to the

deceased Surendra Singh. He has stated about the GD entry of the

change of duty.

29. PW13 Constable Tarun Pandey had gone to collect the FSL

report. He has stated about it.

30. PW15 SSI Trilok Ram Bagretha is the Investigating Officer.

He has stated about the steps taken by him during investigation. He

prepared the site plan Ex. A28 of the place of incident. He also took

the uniform of PW8 Constable Ravi Kumar, which had blood stains,

into custody and prepared its recovery memo Ex. A20. He also took

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into custody the handcuffs alongwith its keys, by which, the appellant

had released himself, while committing the offence. According to PW15

SSI Trilok Ram Bagretha, he had drawn a sketch of the handcuffs on a

sheet of paper, which is Ex. A30. This witness has also proved certain

other articles and proved the charge sheet Ex. A31.

31. In his defence, the appellant has examined many

witnesses.

32. DW1 Hukum Singh has stated that on 28.05.2014, in

the morning at about 5:30, police personnel came in his house and

inquired about the appellant and took him alongwith him. DW2 Geeta

Verma, DW3 Tara Devi, DW4 Hansa Devi, DW5 Prema Devi, DW6

Shanti Devi and DW7 Asha Devi have supported the statement of DW1

Hukum Singh.

33. It is true that in the impugned judgment, the record of

theft case against the appellant has been looked into. Reference has

been made to various paragraphs in the impugned judgment,

including paragraph s 24 and 41. Undoubtedly, material recorded in

one case may not be considered against the accused in another case,

unless the accused has been given an opportunity to cross examine a

person, who has proved the material in another case. The law on that

point is well settled. In fact, the statement of a person cannot be read

against the accused in a criminal trial, unless the accused has an

opportunity to cross examine such a person. But, fact remains that in

a case of theft of the Scooty of PW4 Amit Chandra Joshi, the appellant

had undergone a criminal trial and he was convicted. This is a fact. It

is admitted that the judgment has been delivered by the court of

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competent jurisdiction. A notice of it may always been taken by the

court.

34. It is argued that the prosecution has not proved that the

appellant was in custody at ROP Mukhani at the relevant time. The

witnesses have stated that at ROP Mukhani Sentry duty was changed

from PW12 Constable Navindra Kumar at 12:00 in the midnight and

the deceased Constable Surendra Singh was given Sentry duty. Ex.

A22 is GD entry of ROP Mukhani. It has been proved by PW14

Constable Nirmal Singh Latwal. He has stated about it.

35. At Report No. 2, 00:30 Hrs on 28.05.2014, the GD entry of

ROP Mukhani records that the appellant was interrogated about the

Scooty with regard to the FIR No. 276 of 2014, under Sections 379 and

411 IPC, when the appellant told that on 06.05.2014, he along with

Aslam took away the Scooty. This GD entry has been proved by PW14

Constable Nirmal Singh Latwal as Ex. A23.

36. GD Entry No. 4 of 00:40 Hrs of 28.05.2014 of ROP

Mukhani records that in FIR No. 276 of 2014, under Sections 379 and

411 IPC, police alongwith the appellant left in search of Aslam, which

is Ex. A24. Ex. A25 is GD Entry Report No. 5 of 2:55 Hrs dated

28.05.2014 of ROP Mukhani, which records that police party

alongwith the appellant returned after the search of Aslam. These

documents have been proved by PW14 Constable Nirmal Singh Latwal.

These are GD entries of ROP Mukhani, Police Station Haldwani. These

Exs. A-22, A-23, A-24 and A-25 establish beyond reasonable doubt

that the appellant was in ROP Mukhani with regard to the theft of

Scooty of PW4 Amit Chandra Joshi. PW2 SI Lalit Mohan Joshi and

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other witnesses have also categorically stated about it. Therefore, it

cannot be said that prosecution has concealed anything with regard to

theft of the Scooty or lodging of FIR under Sections 379 and 411 IPC

against the appellant, based on report lodged by PW4 Amit Chandra

Joshi. The arguments that are made on this aspect have less force for

acceptance.

37. It is argued that how iron sariya was lying in the ROP

Mukhani, Police Station Haldwani? The answer to how, could not be

established by the prosecution. It is stated by the witnesses that ROP

Mukhani is adjoining the residential area without any boundary wall.

If iron sariya was lying unattended in the premises, the prosecution

need not establish its source. It has been stated by the witnesses that

the deceased Surendra Singh was hit by iron sariya, which was lying

in the premises of ROP Mukhani.

38. It is argued that the prosecution case is not reliable

because the inquest report Ex. A8 records that the report was given at

08:10 a.m. to the maker of inquest and it does not record the FIR

number, which was lodged much before at 05:55 a.m. at Police Station

Haldwani. This argument has, in fact, no force. PW5 Harveer Singh

has proved the inquest report. He has categorically stated that

SI Laxman Singh Jagwan, who is PW3, had given him an information

that the appellant had killed Constable 234 Surendra Singh and

thereafter, he prepared the inquest report. It is true that FIR was

lodged much before 08:10 a.m., it was lodged at 05:55 a.m. at Police

Station Haldwani. But, fact also remains that when the deceased

Constable Surendra Singh died in the hospital, the Ward Boy Rajendra

Kumar gave a memo of death at ROP Mukhani, which was entered into

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GD Report No.9, 4:20 Hrs at ROP Mukhani, which is Ex. A26. This Ex.

A26 records that the SDM Haldwani shall be informed about the death

of Constable Surendra Singh. PW3 SI Laxman Singh Jagwan, in para

13 of his statement has stated that after receiving information about

the death of Constable Surendra Singh, he wrote a letter to SDM,

Haldwani, PW5 Harveer Singh for inquest, who subsequently,

prepared the inquest.

39. There are two separate channels. FIR was lodged at 05:55

a.m. by PW 2 Lalit Mohan Joshi. Much before it, at 04:20, the GD

Entry of ROP Mukhani records that SDM, Haldwani shall be informed

about the death of Constable Surendra Singh. T his is what PW3 SI

Laxman Singh Jagwan has stated in his statement and PW5 Harveer

Singh tells in the court that he received a letter from PW3 SI Laxman

Singh Jagwan with regard to killing of the deceased Constable

Surendra Singh by the appellant. Thereafter, he prepared the inquest

report. In the case of Radha Mohan Singh (supra), the Hon’ble

Supreme Court has held that the purpose of inquest is to the

ascertainment of the apparent cause of death. Therefore, non-mention

of FIR number in the inquest report, in no manner, doubts the

prosecution case.

40. It is also argued that PW2 SI Lalit Mohan Joshi alongwith

other police personnel took the deceased to hospital, where he died. In

such contingencies, it is argued that there was no reason for the

hospital authorities to send death memo. This argument, in no

manner, doubts the prosecution case. The hospital authorities in their

wisdom thought it proper to inform police by way of sending a memo

about death of the deceased Surendra Singh that is what they did and

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it is entered in a GD Entry Report No. 9 at 4:20 Hrs of 28.05.2014,

which is Ex. A26.

41. The witnesses have been cross examined extensively. In

fact, nothing has been extracted from the cross examination of the

witnesses, which, in any manner, would doubt the credibility of these

witnesses. PW15 SSI Trilok Ram Bagretha is the Investigating Officer.

In his cross examination, he has admitted that there were many

houses adjoining the ROP Mukhani. T here were a colony road

adjoining the ROP Mukhani, but this witness did not interrogate any

witness. The incident took place at about 03:30 a.m. on 28.05.2014.

The Investigating Officer did not interrogate any independent witness

and there is no independent witness to the incident in the instant

case. It is does not doubt the prosecution case. As stated, PW2 SI Lalit

Mohan Joshi and PW3 SI Laxman Singh Jagwan, PW8 Constable Ravi

Kumar and PW14 Constable Nirmal Singh Latwal have categorically

stated as to what had happened in the intervening night of

27/28.05.2014 at ROP Mukhani, Police Station Haldwani. The

incident was unfortunate. The appellant was accused in a theft case

and suddenly, while running away, he hit the deceased Constable

Surendra Singh with iron sariya. He was caught red handed by the

police personnel, when he was trying to run away. The evidence of

these witnesses inspires much confidence. It is supported by the

medical evidence.

42. The question of releasing from handcuffs definitely

troubles this Court. The sketch of handcuffs is Ex. A30. There is no

contemporary record, which could reveal that the appellant was

handcuffed, when he was in ROP Mukhani. As stated, there are

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multiple GD entries proved by the prosecution. Change of Sentry duty,

Ex. A22, an interrogation of the appellant in a theft case is Ex. A23,

according to which. in the midnight. at 12:30, interrogation was done

and at 12:40 in the midnight, the police proceeded in search of Aslam,

which is revealed by Ex. A24 GD entry and police party did return at

02.55 a.m. on 28.05.2014 at ROP Mukhani, which is evident by GD

entry, Ex. A25. But, in these GD entries, it is not recorded that the

appellant was handcuffed. The duty of the Court is to find the truth.

Prosecution could not establish as to how the appellant could release

his hands from the handcuffs. Even if, he could do so, where were the

keys? How the keys were found because had the deceased locked the

handcuffs, the keys would have been with him. Therefore, the story of

releasing from the handcuffs does not inspire confidence. This Court is

of the view that, in fact, the appellant was not handcuffed by the police

and this is something added by the prosecution to give more strength

to their cause.

43. What is proved by the prosecution is that, in fact, the

appellant was at ROP Mukhani in a theft case, which was lodged at

about 10:30 p.m. on 27.05.2014. Midnight at 12:30, the appellant was

interrogated by the police and at 12:40, police proceeded in search of

Aslam and at 02:5 5 a.m. on 28.05.2014, the police party alongwith the

appellant returned at ROP Mukhani, Police Station Haldwani. The

appellant was not handcuffed. It is, thereafter, the appellant tried to

run away and when the deceased Constable Surendra Singh tried to

apprehend him, he hit him with iron sariya, which was lying in the

premises of ROP Mukhani.

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44. It is the prosecution case that when the appellant tried to

escape the custody and run away from ROP Mukhani, he was

apprehended by the deceased Constable Surendra Singh and the

appellant hit him. Thereafter, PW2 SI Lalit Mohan Joshi, PW14

Constable Nirmal Singh Latwal and PW8 Constable Ravi Kumar took

the deceased to the hospital. The uniform of PW8 Constable Ravi

Kumar was stained with blood. It was taken into custody. Police has

proved it. The recovery memo has been proved along with the GD

entries. Those articles were forwarded to the FSL and in all those

articles Blood Group “O” was detected.

45. In view of the foregoing discussion, this Court is of the

view that, in fact, prosecution has been able to prove, beyond

reasonable doubt that on 28.05.2014 at about 03:30 in the morning,

the appellant was in the police custody with regard to FIR No.276 of

2014, under Section 379, 411 IPC, lodged by PW4 Amit Chandra

Joshi. At about 03:25 a.m., on that date, the appellant tried to run

away from the police custody and when Constable Surendra Singh

tried to apprehend him, the appellant hit Constable Surendra Singh

on his chest with iron sariya . Prosecution has, in fact, proved beyond

reasonable doubt, the offence under Section 224 IPC also.

46. The question of offence under Section 302 IPC falls for

consideration. It is argued on behalf of the appellant that it is not a

planned killing. In a sudden quarrel, in the process of running away

from the police custody, as per prosecution, the deceased was hit. It is

argued that this case falls under Exception 4 to Section 300 IPC.

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47. In the case of Pappu Vs. State of M.P., (2006) 7 SCC 391,

the Hon’ble Supreme Court discussed the scope of Section 300

Exception IV of IPC and in para 13 of the judgment observed as

follows:-

“…………..The help of Exception 4 can be invoked if death is

caused (a) without premeditation; (b) in a sudden fight; (c) without the

offender's having taken undue advantage or acted in a cruel or

unusual manner; and (d) the fight must have been with the person

killed. To bring a case within Exception 4 all the ingredients

mentioned in it must be found. It is to be noted that the “fight”

occurring in Exception 4 to Section 300 IPC is not defined in IPC. It

takes two to make a fight. Heat of passion requires that there must be

no time for the passions to cool down and in this case, the parties

have worked themselves into a fury on account of the verbal

altercation in the beginning. A fight is a combat between two and

more persons whether with or without weapons. It is not possible to

enunciate any general rule as to what shall be deemed to be a sudden

quarrel. It is a question of fact and whether a quarrel is sudden or not

must necessarily depend upon the proved facts of each case. For the

application of Exception 4, it is not sufficient to show that there was a

sudden quarrel and there was no premeditation. It must further be

shown that the offender has not taken undue advantage or acted in

cruel or unusual . The expression “undue advantage” as used in

the provision means “unfair advantage”.

48. In the case of Sayaji Hanmant Bankar Vs. State of

Maharashtra, (2011) 14 SCC 477, there were petty quarrel between

the husband and wife and one day, the husband hit with left knee

with a water pot and thereafter, threw a burning kerosene lamp upon

her. The wife was wearing a nylon saree, which immediately caught

fire and she subsequently dies. Under those facts and circumstances

in paras 5 and 9, the Hon’ble Supreme Court observed as follows:-

“5. In our view, from the evidence on record, it does not appear

that the intention on the part of the accused was to cause death or

such bodily injury as would have resulted in the death of his wife.

There would be much more activity on the part of the accused if his

intention was to commit the murder of his wife. It seems that there

was a fight as soon as he came to the house under a drunken state

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and in the fight, he first hit her left knee with a water-pot and

thereafter, threw a kerosene lamp on her. It is obvious from the

evidence that this was done suddenly in the heat of passion. If there

was any intention to commit her murder, as mentioned in Section 299

IPC, there would have been such other acts like pouring kerosene on

the deceased, etc. on the part of the accused.

9. We have gone through the evidence carefully. It seems that

as soon as the accused entered the house, there appeared to be some

quarrel with his wife and in that fight first, he threw a water- pot and

thereafter a kerosene lamp. The burning seems to be more out of the

fact that unfortunately at that time, the lady was wearing a nylon sari.

Had she not been wearing a nylon sari, it is difficult to imagine how

she could have been burnt to the extent of 70%. In our view this was

a case which clearly falls under Exception 4 to Section 300 IPC since

there was a sudden fight. There was no premeditation either.

Therefore the appellant-accused is liable to be convicted for the

offence punishable under Section 304 Part I.”

49. In the instant case, what the prosecution has proved is

that the appellant was in police custody with regard to a theft case.

The appellant tried to run away; the deceased caught hold of him; in

that process, to escape, suddenly, the appellant picked up iron sariya ,

which was lying at ROP Mukhani and hit the deceased on his chest,

due to which, the deceased died.

50. These facts establish that, in fact, the death is caused; (a)

without premeditation; (b) in a sudden fight; (c) without the appellant

taking any undue advantage or acting in a cruel or unusual manner.

This act, in fact, falls under Exception 4 to section 300 IPC. Therefore,

this Court is of the view that the prosecution though has proved the

sequence of the events, which resulted into the death of the deceased

Surendra Singh, but it does not fall under Section 302 IPC. The fact,

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as proved by the prosecution establishes that the appellant is liable to

be convicted under Section 304 Part 1 IPC.

51. The accused was arrested on 28.05.2014 and he has been

in custody since then.

52. We accordingly, alter the conviction of the appellant from

Section 302 IPC to Section 304 Part-1 IPC and sentence him to the

period of custody which he has already undergone in this case.

Sentence of fine shall remain the same.

53. Let the appellant be released from custody forthwith

unless he is required in any other case.

54. The appeal is partly allowed to the extent indicated above.

55. Let a copy of this judgment be sent to learned court below

along with the original records.

( Alok Mahra, J.) (Ravindra Maithani, J.)

07.01.2026

Jitendra