[2025:RJ-JP:47144-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 624/1999 Hakim Singh son of Nohbat Singh, resident of Kalsad, Police Station Bayana, District Bharatpur. (At present in Sevar Jail, Bharatpur) ----Accused-Appellant Versus The State of Rajasthan ----Respondent For Appellant(s) : Mr. Rinesh Kumar Gupta with Mr. Sarvat Alam For Respondent(s) : Mr. Sudesh Kumar Saini, PP HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU Judgment 21/11/2025 (Per Hon’ble Mahendar Kumar Goyal,J) This criminal appeal is directed against the judgment dated 15.09.1999 passed by learned Additional Sessions Judge, Hindaun City (for brevity, ‘learned trial Court’) in Sessions Case No.13/1994 whereby, the accused-appellant (for short, ‘appellant’) has been convicted and sentenced as under: Section 302 IPC: Life Imprisonment and Rs.1,000/- fine: in default whereof, 6 months’ simple imprisonment. The relevant facts in brief are that based on the written report dated 13.03.1994 (Ex. P1) submitted by Shri Bachu Singh (PW-1)- brother of the deceased Tehri Singh, an FIR No.50/1994 came to be registered at Police Station Suroth, District Sawaimadhopur for the offence under Section 302 IPC. It was stated in the report that on 11.03.1994, his brother Tehri Singh [2025:RJ-JP:47144-DB] (2 of 11) [CRLA-624/1999] did not return to his home and despite efforts, could not be traced on 12.03.1994. It was further stated that today i.e., 13.03.1994 at about 8:00 am, some passerby informed about a dead body lying near the river which was found to be of his brother-Tehri Singh. It was alleged that since, there were injuries on the body of his brother, somebody has assassinated him. After investigation, the police filed charge-sheet against the appellant and co-accused Happu @ Devi Singh under Section 302 and 201 IPC. Charge under Section 302/34 IPC was framed against the appellant whereas, against the co-accused-Devi Singh, charge under Section 302/34 and 201 IPC was framed. They pleaded not guilty and demanded trial. However, during the trial, the co-accused- Happu @ Devi Singh expired and the appellant has been convicted and sentenced by the learned trial Court in the manner stated hereinabove. Assailing the judgment, learned counsel for the appellant- Shri Rinesh Gupta submits that the learned trial Court has erred in recording his conviction under Section 302 IPC based on conjectures and surmises in absence of any legally admissible evidence against him. He submits that the prosecution evidence suffers from contradictions on important aspects of the matter and is not trustworthy to record his conviction. Inviting attention of this Court towards the statement of the prosecution witnesses such as S/Shri Manohari (PW-7), Kirori (PW-8) and Sugar Singh (examined twice as PW-11 and PW-14), he would submit that their testimony with regard to extra-judicial confession made by the appellant before them does not inspire confidence and his [2025:RJ-JP:47144-DB] (3 of 11) [CRLA-624/1999] conviction based upon it, is not sustainable in the eye of law. He further submits that similarly, the evidence of ‘last seen’ relied upon by the learned trial Court for recording the finding of his conviction, is not reliable. Shri Gupta submits that undoubtedly, it is a case of circumstantial evidence wherein, the complete chain leading to conclusion of his guilt is totally missing. He, therefore, prays that the appeal be allowed, the judgment impugned dated 15.09.1999 be quashed and set aside and the appellant be acquitted from the charge framed against him. He, in support of his submissions, relies upon a judgment of the Hon’ble Supreme Court of India in the case of Raja Naykar V. State of Chhattisgarh: (2024) 3 SCC 481. Per contra, learned Public Prosecutor, opposing the submissions and supporting the findings recorded by the learned trial Court, prays for dismissal of the appeal. Heard. Considered. A perusal of the judgment impugned reveals that while rejecting the testimony of Sh. Bhagmal (PW-17)- father of the deceased and the alleged eye witness as totally unreliable and holding that the case is based on circumstantial evidence, the learned trial Court has relied upon following factors to record conviction of the appellant. 1. Extra Judicial Confession 2. Last seen evidence. 3. Recovery of weapon of offence and blood stained clothes of the appellant at his instance. [2025:RJ-JP:47144-DB] (4 of 11) [CRLA-624/1999] 4. Unexplained injuries on the person of the appellant. Extra-judicial confession by the appellant: In this regard, the learned trial Court has relied upon the testimony of S/Shri Manohari (PW-7), Kirori (PW-8) and Sugar Singh(PW-11/14). While, Shri Manohari (PW-7) says that the appellant and Happu @ Devi Singh had informed him that they have assassinated Kehari. He further says in his examination-in-chief that they confessed before him twice; first, when he was sitting in the house of Vishnu and secondly, in the Suroth Police Station. Taking a contrary stand, during his cross-examination, he has stated that on first occasion, the confession was made at the Suroth Police Station when they were in custody and on second occasion, when the SHO of the Police Station Suroth brought them to their Village Pali. Shri Kirodi as PW-8 has stated that when, he along with Manohari and Sugar was smoking tobacco in the house, Happu came and confessed that he got Kehari murdered through Hakim Singh. In cross-examination, he has averred that the house belonged to Manohari and Sugar Singh and only Happu came and confessed. Shri Sugar Singh (Pw-11) has, in his examination-in- chief recorded on 09.11.1995, stated that when he was smoking ‘Hukkah’ at Vishnu's house where 4-5 boys and girls were also sitting, Hakim as well as Happu came and Hakim confessed to have murdered Kehri. He has specifically stated that Happu kept mum and said nothing. However, in his examination-in-chief recorded on 24.02.1996 as PW-14, he has stated that he did not [2025:RJ-JP:47144-DB] (5 of 11) [CRLA-624/1999] know Hakim Singh prior to his arrest in the subject murder. Improving his earlier statement, he averred that he alongwith his cousin Vishnu was smoking ‘Hukkah’ when the appellant and the co-accused Happu came and both confessed before him to have murdered Kehari. During his cross-examination, contradicting his statement recorded under Section 161 CrPC (Ex-D3), he has stated that Manohari was not present at that time. A perusal of the aforesaid deposition reveals that while, Manohari (PW-7) does not reflect presence either of Kirodi or of Sugar Singh at the time confession was made, Kirodi as PW-8 shows presence of all three persons; but, says that confession was made only by Happu and Sugar Singh (PW-11) shows only his presence in his statement recorded on 09.11.1995 alongwith 4-5 boys and girls and says that only the appellant confessed the commission of offence before him; but, improving his statement as PW-14, he submits that the confession was made in presence of himself and his cousin Vishnu and by both of them. Further, Shri Manohari said that the confession was made twice; first, at the Police Station where the accused were in custody and second, when they were brought by the SHO to their village meaning thereby, the confession was made in the police custody and is hit by Section 26 of the Evidence Act which reads as under: “26. Confession by accused while in custody of police not to be proved against him.–No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” [2025:RJ-JP:47144-DB] (6 of 11) [CRLA-624/1999] Shri. Kirodi did not say that the appellant made any confession before him rather, has specifically admitted during his cross-examination that only Happu confessed to him. Similarly, the testimony of the remaining prosecution witness Shri Sugar Singh not only suffers from self contradictions on material aspects but, he also admits that he did not know the appellant-Hakim Singh before he heard about the subject murder, rendering it highly doubtful that the appellant would make extra judicial confession before him. In view of the aforesaid discussion, we do not find conviction of the appellant based on his alleged extra judicial confession to be tenable. LAST SEEN EVIDENCE:- In this regard, the learned trial Court has relied upon the testimony of S/Shri Jal Singh (PW-4) and Ramdhar (PW-15). Shri Jal Singh is son of Shri Bachu Singh-the informant. In his examination-in-chief, he has averred that during the day time, the appellant was working with his uncle Kehri Singh (Kehari) but, when he, alongwith his father, left in the evening for home, none was present alongwith his uncle. During his cross-examination, he has stated that during the whole day, the appellant was working with Kehri Singh and they used to work together daily. Shri Ramadhar (PW-15) has stated in his examination-in-chief that he saw the deceased in the company of appellant at dusk time and no one else was present there. However, the learned trial Court gravely erred in not considering the testimony of Shri Bachu Singh (PW-1)-the informant and the brother of the deceased in this [2025:RJ-JP:47144-DB] (7 of 11) [CRLA-624/1999] regard. He has stated in his examination-in-chief that on 11.03.1994, he had come to his ‘badi’, adjacent to the ‘badi’ of the deceased Kehar Singh, at about 7 o’ clock. Kehar Singh requested Jal Singh (PW-4) to leave for home whereupon, Jal Singh told that since his father has come, they would come later. He has further stated that they came through Churari way whereas, Kehri Singh came from another way. In view of the aforesaid submission, it is apparent that the witness Bachu Singh has left for home along with his son after 7 o’ clock in the evening and Kehri Singh has also left for his home although through different way. In his examination-in-chief, he has not uttered a word that he saw the appellant in the company of the deceased or even otherwise. During his cross-examination, he has categorically admitted that while working at ‘badi’ on 11.03.1994 alongwith his son Jal Singh, no one else was present and Kehri Singh was working in his ‘badi’ which is adjacent to their ‘badi’. He has candidly admitted that except Kehri Singh, he did not see any other person on that day. The aforesaid deposition gets corroborated from the written report dated 13.03.1994 (Ex-P1) lodged by Sh. Bachu Singh wherein, he has stated that on 11.03.1994, he alongwith his brother Kehri Singh and children had worked in their ‘badi’ and returned to their home in the evening. In view of the deposition of Shri Bachu Singh, veracity of the testimony of Shri Ramadhar (PW-15) becomes doubtful inasmuch as, Shri Ramdhar has stated to have seen the appellant in the company of the deceased at the time of dusk whereas, the brother of the deceased as PW-1 has categorically stated that he had left [2025:RJ-JP:47144-DB] (8 of 11) [CRLA-624/1999] the place of incident alongwith his son Jal Singh and brother Kehri after 7 P.M. for their home and he did not see anybody else there. There is another important aspect of the matter. Shri Jal Singh as PW-4 has stated that the appellant-Hakim Singh worked with the deceased whole day and they used to work together daily. Admittedly, the appellant and the deceased were the resident of different villages. It is not the prosecution case that they were related in any way, or knew each other since long or that the appellant used to work in the ‘badi’ of the deceased as labour or otherwise. Except the deposition of Shri Jal Singh, there is no evidence available on record to even show that the deceased and the appellant knew each other. In view thereof, the testimony of Shri Jal Singh, even otherwise, does not inspire confidence. Overlooking of the aforesaid important evidence, which casts a serious doubt on the veracity of prosecution case, has vitiated the findings of the learned trial Court while recording the appellant’s conviction under Section 302 IPC based on the ‘last seen’ evidence. Recovery of incriminating material The judgment dated 15.09.1999 reflects that the learned trial Court has relied upon, while convicting the appellant, on recovery of weapon of offence i.e. a blood stained knife as also the blood stained clothes of the appellant at his instance. Without dwelling deep into this aspect, suffice it to say that mere recovery is not sufficient to warrant conviction of an accused in a case based on circumstantial evidence unless there is a complete chain leading only to the probability of his guilt. [2025:RJ-JP:47144-DB] (9 of 11) [CRLA-624/1999] In the instant case, as already held by us, extra judicial confession and the last seen evidence relied upon by the learned trial Court are not trustworthy and therefore, merely on the basis of recovery of incriminating material, the appellant could not have been brought to book for the offence under Section 302 IPC. Even otherwise, as per the Forensic Science Laboratory Report (Ex.P- 35), the aforesaid articles although, have been found to be stained with human blood; but its blood group could not be specified. Thus, it is not proved that the aforesaid articles had blood either of the appellant or of the deceased. Their Lordships have, in the case of Raja Naykar (supra) involving identical circumstances, held as under:- “26. As per the FSL report, the bloodstains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the blood group of the deceased. Apart from that, even the serological report is not available. 29. It can thus be seen that, the only circumstance that may be of some assistance to the prosecution is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In Mustkeem v. State of Rajasthan: (2011) 11 SCC 724 this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” [2025:RJ-JP:47144-DB] (10 of 11) [CRLA-624/1999] In the backdrop of aforesaid precedential law, we are not convinced to sustain the conviction of the appellant based on recovery of either the blood stained knife or the blood stained clothes of the appellant at his instance. Unexplained injur ies on the person of appellant The learned trial court has also relied upon the unexplained injuries upon the person of the appellant, as recorded in his Medico Legal Examination (Ex.P-28), to warrant his conviction. The learned trial Court has held that as per Ex.P-28, four simple injuries were found on the right hand of the appellant which remained unexplained either by him or by his learned counsel. However, we find that Dr. N N Meena, who has prepared this Medico Legal Report (Ex.P-28), though examined as PW-10, did not prove it; rather, it was exhibited by the Investigating Officer, Shri Prem Chand Sharma (PW-21). Thus, the medical report was not proved in accordance with law and the appellant was deprived of his valuable right to subject the doctor who prepared the Medico Legal Report, to cross-examination. Moreover, while recording conviction of the appellant, he was not given sufficient opportunity, under Section 313 CrPC, to explain the injuries mentioned in the Ex.P-28; rather, was only suggested that Shri Prem Chand Sharma (PW-21) has stated that while committing the offence, his finger got cut with knife whereas, the Ex.P-28 also reflects injuries other than the injuries on his finger. It is trite law that under Section 313 CrPC, the accused must be given sufficient opportunity to explain all the incriminating evidence against him and omission, if any, may be fatal to the prosecution case. Therefore, we are not able to persuade [2025:RJ-JP:47144-DB] (11 of 11) [CRLA-624/1999] ourselves to sustain the conviction of the appellant on account of unexplained injuries on his right hand. Since, the prosecution has failed to establish the complete chain in the present case based on circumstantial evidence leading to the only possibility of guilt of the appellant, this criminal appeal deserves to be allowed. Resultantly, this criminal appeal is allowed. The judgment dated 15.09.1999 is quashed and set aside and the appellant is acquitted of the charge framed against him. Since, he is on bail, his bail bonds are discharged. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Hakim Singh S/o Nohbat Singh is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in that event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (BALJINDER SINGH SANDHU),J (MAHENDAR KUMAR GOYAL),J DANISH USMANI /89