[2026:RJ-JP:29693-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal (DB) No. 7/2018 CNR: RJHC020407352018 | URN: CRLAD / 64U / 2018 1. Kalla S/o Barelal, R/o Sarkhandi Thana Tendua, Distt. Shipuri (MP) 2. Vinod S/o Harpal, R/o Sejwara Thana Tendua, Distt. Shiv- puri (MP) 3. Mithun S/o Hotam, R/o Sejwara Thana Tendua, Distt. Shivpuri (MP) At Present Confined At Central Jail Baran, (Raj.) ----Accused-Appellants Versus State of Rajasthan through the Public Prosecutor ----Respondent For Appellant(s) : Mr. Amit Jindal assisted by Mr. Anukram Singh Ms. Lata Kumari Mr. Chandraveer Singh Rathore Ms. Surbhi Singhal Ms. Vaidehi Kumari Rajawat For Respondent(s) : Mr. Rhishi Raj Singh Rathore, P.P. HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE RAVI CHIRANIA Judgment / Order 30/07/2026 PER HON’BLE MAHENDAR KUMAR GOYAL, J. By way of this criminal appeal, the accused-appellants (for brevity, ‘the appellants’) have assailed the legality and validity of the judgment dated 27.10.2017 and the order dated 28.10.2017 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran (Rajasthan) (for short, ‘the learned trial [2026:RJ-JP:29693-DB] (2 of 14) [CRLAD-7/2018] Court’) in Sessions Case No.141/2016 (CIS No.143/2016) whereby, they have been convicted and sentenced as under:- 1. Under Section 302/34 IPC: Life imprisonment and fine of ₹5,000/- each; in default whereof, six months' additional rigorous imprisonment. The essential facts, in a nutshell, necessary for deciding the controversy in the matter are that Suratiya (PW-4) submitted a written report (Exhibit P-8) on 20.03.2016 at about 09:45 AM to the Station House Officer, Police Station Kasba Thana, District Baran stating therein that at about 2:00 PM yesterday, his younger brother had gone to Kasba Thana to get the mobile repaired and to purchase some articles but, did not return in the night. It was stated that he received an information in the morning at about 9:30 AM that the dead body of his brother-Vijay was lying in the agricultural field of Kusal next to the road. On examination, it was found that he had grievous injury on his head. It was further averred that a bicycle, a mobile and the blood- stained stones were lying beside the dead body. It was apprehended that during the night, some unknown person had murdered him with the stones and a doubt was cast on Hotam and Harpal as there was a land dispute with them. Based thereupon, an FIR No.36 dated 20.03.2016 was registered for the offence under Section 302 IPC. After investigation, the Police filed charge- sheet under Section 302/34 IPC against the appellants whereunder, the charge was also framed. After trial, the appellants have been convicted and sentenced, as stated hereinabove. Assailing the impugned judgment and order, learned counsel for the appellants-Shri Amit Jindal submitted that the findings of [2026:RJ-JP:29693-DB] (3 of 14) [CRLAD-7/2018] the learned trial Court are based on conjectures and surmises and, as a matter of fact, there was no legally admissible evidence available on record to connect them with the alleged offence. He further submitted that though the case is based on circumstantial evidence but, the prosecution has miserably failed to lead requisite evidence to constitute a complete chain of circumstances leading to only conclusion of their guilt. Shri Jindal contended that the prosecution case hinges on "last seen" evidence, recovery of a mobile phone allegedly belonging to the appellant-Kalla and recovery of a mobile phone each, allegedly belonging to the deceased, from the possession of the other two appellants but, none of the aforesaid circumstances could be proved by the prosecution to warrant their conviction. Learned counsel further submitted that in order to prove the evidence of "last seen", the prosecution has relied upon the sole testimony of Banwari (PW-3). Inviting attention of this Court towards his testimony as also deposition of other prosecution witnesses such as Godha (PW-2), Suratiya (PW-4), Dinesh (PW-6) and the Investigating Officer-Umesh (PW-12), he asserted that they all have claimed presence of Banwari at the scene of crime when the written report (Exhibit P-8) was submitted but, surprisingly, at that time, he did not disclose to anyone that he had seen the appellants in the company of the deceased on the fateful night. He argued that even his police statement under Section 161 CrPC (Exhibit D-2) was recorded as late as on 17.04.2016, i.e., after 28 days from the date of incident for which the prosecution offered no explanation. He contended that his [2026:RJ-JP:29693-DB] (4 of 14) [CRLAD-7/2018] silence for a period of 28 days was against natural human conduct and gave an impression that he was an implanted witness. With regard to recovery of a mobile phone each, allegedly belonging to the deceased, from the possession of the appellants- Vinod and Mithun, learned counsel contended that the prosecution did not lead any evidence to establish that these mobile phones, as a matter of fact, belonged to the deceased, in the absence of which, their conviction based on this recovery is not sustainable in the eye of law. With regard to recovery of a mobile phone beside the dead body of the deceased allegedly belonging to the appellant-Kalla, learned counsel submitted that even assuming it to be so, this evidence alone was not sufficient to warrant their conviction under Section 302/34 IPC. To buttress his submissions, learned counsel relied upon a judgment of the Hon'ble Supreme Court of India passed in the case of Shahid Khan versus State of Rajasthan: (2016) 4 SCC 96. He, therefore, prayed that the appeal be allowed, the impugned judgment and order dated 27.10.2017 and 28.10.2017 respectively be quashed and set aside and the appellants may be acquitted of the charge framed against them. Per contra, learned Public Prosecutor, opposing the submissions, contended that the learned trial Court has recorded a finding of guilt of the appellants based on cogent evidence available on record. He submitted that the prosecution was able to establish the complete chain of circumstances leading to only [2026:RJ-JP:29693-DB] (5 of 14) [CRLAD-7/2018] conclusion of their guilt and therefore, the appeal deserves to be dismissed. Heard. Considered. The prosecution story begins with the receipt of a telephonic information from an unknown person at Police Station Kasba Thana on 20.03.2016 at about 8.30 AM regarding a dead body lying with a bicycle beside it on Majola to Sejwara road whereupon, the police reached the spot where, a written report (Exhibit P-8) was submitted by Suratiya (PW-4)-brother of the deceased-Vijay. As per the Autopsy Report (Exhibit P-12), the deceased had received six external injuries comprising one injury on his forehead and five injuries on his head. On dissection, haematoma was found on sub-scalp with fracture of skull bone. Cause of death was found to be ante-mortem head injury. Shri Naresh Kumar Meena (PW-9), who conducted the autopsy, has proved the postmortem report. Thus, it is found to be an established case of culpable homicide. In absence of any direct evidence, the prosecution case is based on circumstantial evidence. In the much celebrated judgment in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra: (1984) 4 Supreme Court Cases 116, the Hon'ble Supreme Court of India has laid down the following golden principles to be kept into consideration while deciding a case based on circumstantial evidence:- [2026:RJ-JP:29693-DB] (6 of 14) [CRLAD-7/2018] 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the con- clusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a gram- matical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra MANU/SC/0167/1973: 1973 CriLJ 1783 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be con- sistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclu- sive nature and tendency. (4) they should exclude every possible hy- pothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. [2026:RJ-JP:29693-DB] (7 of 14) [CRLAD-7/2018] If we examine the instant case on the touchstone of the aforesaid guidelines, our conclusion is as under:- A perusal of the judgment impugned dated 27.10.2017 reflects that the learned trial Court has relied upon the following circumstances to connect the appellants with the crime:- 1. Last seen evidence, 2. Recovery of a mobile phone belonging to the appellant-Kalla next to the dead body, and 3. Recovery of a mobile phone each, belonging to the deceased, from the possession of the appellants Vinod and Mithun. So far as, the theory of "last seen" is concerned, the prosecution case hinges on the sole testimony of Banwari (PW-3) who, in his examination-in-chief, has stated that on 19.03.2016, he had met the appellants in Kasba Thana while they were consuming liquor and had seen the deceased Vijay getting his mobile repaired. He has further averred that while returning to the village, ahead of Majola village, he saw the appellants threatening the deceased of eliminating him and when he tried to intervene, he was also threatened by the appellants-Kalla and Vinod whereupon, he left. It was stated that in the next morning between 8:00 AM and 10:00 AM, he heard that the dead body of Vijay was lying near the agricultural field of Kusal Master. In his cross-examination, he has stated that by the time the police reached the scene of crime in the next morning at about 8-9 AM, he had also gone there; but, admitted that he did not submit any written report to the police. He also admitted his presence at the time the site plan (Exhibit P-9) was prepared. Further, his presence at the scene of crime in the morning of 20th March, 2016 [2026:RJ-JP:29693-DB] (8 of 14) [CRLAD-7/2018] was also admitted by the prosecution witnesses namely, Godha (PW-2), the complainant Suratiya (PW-4), Dinesh (PW-6) and the Investigating Officer-Umesh (PW-12). However, except the complainant, none claimed that Banwari had disclosed to have seen the deceased in the company of the appellants on the previous day as also in the fateful night. Although, Suratiya as PW-4 has asserted in his examination-in-chief that Banwari had informed him that he had seen the appellants quarreling with the deceased on the previous day near field of Kusal; but, conspicuously, such allegation is absent in the written report (Exhibit P-8). Further, there was no occasion for Suratiya (PW-4) not to have disclosed the evidence of "last seen" in the written report (Exhibit P-8) if he had come to know of it from Banwari as claimed in his examination-in-chief. The PW-4 also admitted that he did not disclose this fact, in his Section 161 Cr.P.C. statement (Exhibit D-1), that Banwari has claimed to have seen the deceased quarreling with the appellants in the last night. Moreover, the police statement (Exhibit D-2) of Banwari was recorded as late as on 17.04.2016, i.e., after 28 days from the date of incident and the prosecution has miserably failed to offer any explanation for this inordinate delay in recording his statement. This unexplained exorbitant delay, coupled with the circumstances stated hereinabove, raises a serious doubt as to the reliability of his testimony as to have seen the deceased in the company of the appellants last. Indisputably, the deceased and the witnesses were resident of same village and as per his admission during his cross-examination as PW-3, both belonged to the same caste/society and in view thereof, this Court finds [2026:RJ-JP:29693-DB] (9 of 14) [CRLAD-7/2018] substantial force in the submission of Shri Jindal that his silence for a good period of 28 days was against the natural human conduct. On that premise, we do not find his testimony to be creditworthy. Their Lordships have, while dealing with an identical issue, in the case of Shahid Khan (supra), held as under:- "The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye- witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the Appellants. The High Court has failed to advert to the contentions raised by the Appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the Appellants has not been proved beyond reasonable doubt." [2026:RJ-JP:29693-DB] (10 of 14) [CRLAD-7/2018] Thus, in the case of Shahid Khan (supra), the Hon'ble Apex Court found the delay of three days in recording statement with no explanation to be fatal; obviously, in the attending facts and circumstances of the case. As already observed, in the instant case, there is an unexplained delay of 28 days in recording the statement and this, coupled with the fact that despite his presence at the scene of crime at the time of investigation on 20.03.2016 itself; his non-disclosure to anyone to have seen the deceased in the company of the appellants in the fateful night or for that matter, despite disclosure of this fact to Suratiya (PW-4)-brother of the deceased and the complainant, absence of this averment in the written report (Exhibit P-8) or even in his police statement (Exhibit D-1), impeaches his credibility and we are not convinced that it was open for the learned trial Court to have relied upon the same as the evidence of "last seen". Our view is strengthened by another judgment of the Hon'ble Supreme Court of India passed in the case of State of Orissa Vs. Brahmananda Nanda; (1976) 4 SCC 288; wherein, their Lordships were pleased to hold as under:- "The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she [2026:RJ-JP:29693-DB] (11 of 14) [CRLAD-7/2018] did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the rooming of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case." Now, we are left with the evidence qua recovery of the mobile phones. In this regard, first we would like to deal with the [2026:RJ-JP:29693-DB] (12 of 14) [CRLAD-7/2018] recovery of a mobile phone each from the possession of the appellants Vinod and Mithun. On the information furnished by Vinod under Section 27 of the Evidence Act, 1872 (hereinafter referred to as "the Act of 1872"), (Exhibit P-22), a mobile phone allegedly belonging to the deceased was recovered vide Exhibit P- 17. Similarly, based on the information furnished by Mithun under Section 27 of the Act of 1872 (Exhibit P-23), a mobile phone allegedly belonging to the deceased was recovered vide Exhibit P- 16. However, the prosecution did not lead any evidence to demonstrate that the mobile phones so recovered either belonged to the deceased or were even being used by him at the time of unfortunate incident. While, one of the Motbir witnesses to the seizure memos namely Godha (PW-2) has not proved the same, the other Motbir witness namely Lakhan Singh (PW-10) has categorically admitted during his cross-examination that they neither inquired about number of the subject mobile phones nor, their IMEI numbers. He has also admitted that such mobile phones were easily available in the market and in almost similar terms, is the admission of the Investigating Officer during his cross-examination as PW-12. As a matter of fact, despite meticulously scanning the evidence available on record with the assistance of the learned counsels for the respective parties, we could find no material to demonstrate that the mobile phones so recovered from the possession of the appellants-Vinod and Mithun, belonged to the deceased-Vijay. On that premise, we are not able to persuade ourselves to agree with the findings recorded by the learned trial Court connecting the appellants with the crime on the strength of recovery of the subject mobile phones. [2026:RJ-JP:29693-DB] (13 of 14) [CRLAD-7/2018] In the aforesaid factual backdrop, we are left with only one circumstantial evidence, i.e., recovery of the mobile phone belonging to the appellant-Kalla lying next to the dead body of Vijay. Although, from the details of the mobile number of this mobile associated with its IMEI number, placed on record by the appellants themselves as Exhibit D-3, it was established that this mobile phone belonged to the appellant-Kalla; however, only on account of recovery of this mobile phone beside the dead body of the deceased, this Court is not convinced that finding of guilt of either the appellant-Kalla or the other appellants can be sustained inasmuch as, the Hon'ble Supreme Court of India has held in the case of Sharad Birdhichand Sarda (supra) that to bring home a charge based on circumstantial evidence, the prosecution is under an obligation to prove the entire chain of circumstances leading to only hypothesis of the guilt and there should be no missing link in the chain of events. The upshot of the aforesaid discussion is that we are of the considered view that the prosecution has failed miserably to substantiate the charge of murder of Vijay against the appellants and the learned trial Court has returned the finding of their guilt without appreciating the evidence available on record in true perspective and therefore, the appeal deserves to be allowed. Resultantly, the appeal is allowed. The judgement and order impugned dated 27.10.2017 and 28.10.2017 respectively passed by the learned trial Court in Sessions Case No.141/2016 (CIS No.143/2016) are quashed and set aside. The appellants are acquitted of the charge framed against them. [2026:RJ-JP:29693-DB] (14 of 14) [CRLAD-7/2018] As per the custody certificates of the appellants dated 30.07.2026 furnished by the learned Public Prosecutor, the appellants are behind the bars. In view thereof, they be set at liberty forthwith if not required to be detained in any other case. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellants namely 1. Kalla S/o Barelal, 2. Vinod S/o Harpal and 3. Mithun S/o Hotam are directed to furnish a personal bond in the sum of ₹25,000/- each 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 the event of Special Leave Petition being filed against the judgment and the order or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly. (RAVI CHIRANIA),J (MAHENDAR KUMAR GOYAL),J 53/Manish