[2026:RJ-JP:7543-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 271/2016 Gordhan Singh, son of Shri Ghanshyam Singh, aged about 53 years, resident of Tigariya, Police Station Bandikui, District Dausa (Raj.) (At present confined in Central Jail, Jaipur.) ----Accused-Appellant Versus State Of Rajasthan, through Public Prosecutor. ----Respondent For Appellant(s) : Mr. V S Chauhan with Mr. Anil Agrawal For Respondent(s) : Mr. Amit Kumar Punia, PP HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE SAMEER JAIN Judgment 17/02/2026 (PER: HON’BLE JUSTICE SAMEER JAIN) 1. Present appeal is preferred under Section 374 of Cr.P.C. against the judgment and conviction order dated 27.01.2016 passed by the learned Additional Sessions Judge, Bandikui, District Dausa, in Sessions Case No.11/2013 whereby the accused- appellant has been convicted for the offence under Section 302 of IPC and sentenced for life imprisonment with the fine of Rs.10,000/-, and in default in payment of fine, further three months simple imprisonment. 2. The relevant facts, in brief, as canvassed by learned counsel for the appellant, are that on 19.09.2013 the complainant- Hari Singh, submitted a typed written report (Ex.P.11) at Police Station Bandikui, District Dausa. In the said report, it was stated that on 18.09.2013 his son Dharmendra Singh (hereinafter referred to as ‘victim’), along with Gordhan Singh and Vishnu Singh, had gone [2026:RJ-JP:7543-DB] (2 of 10) [CRLA-271/2016] out to take a bath and were consuming liquor near a pond. However, victim did not return to home till evening. Upon making inquiries and searching for him, the complainant and others found victim’s dead body in the pond, with certain injuries on various parts of the body. It was further stated that a towel belonging to Gordhan Singh was found near the dead body. Even, in the said report, Gordhan Singh and Vishnu Singh were named as accused. 3. On the basis of the aforesaid report, an FIR came to be registered on 19.09.2013, subsequent to the recovery of the dead body; and during the course of investigation, the present appellant, was arrested on 28.09.2013. Upon completion of investigation, a charge-sheet was filed against the appellant for the offence punishable under Section 302 I.P.C., and the matter was committed to the Court of Sessions for trial, wherein the learned trial Court framed charge against the appellant for the offence under Section 302 I.P.C. and the appellant, upon being examined under Section 313 Cr.P.C., denied the allegations in toto, and pleaded innocence. 4. It is submitted that during the course of trial, the prosecution examined as many as 12 witnesses and exhibited certain documents. Thereafter, from the defendant’s side with denial to the entire prosecution story, one witness was examined and five documents were exhibited. 5. It is further submitted that without properly hearing and appreciating the defence of the appellant, the learned Trial Court, vide impugned judgment and order dated 27.01.2016, convicted the appellant for the offence under Section 302 I.P.C. It is submitted that conviction recorded by the learned Trial Court is [2026:RJ-JP:7543-DB] (3 of 10) [CRLA-271/2016] illegal, perverse, and unsustainable in the eyes of law, being contrary to the provisions of law as well as the evidence available on record. 6. In support of the said contention, learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case in the absence of any cogent medical evidence, as the cause of death as per the postmortem report is “Asphyxia due to smothering”. However, the prosecution failed to substantiate that smothering of the victim has been inflicted and aided by the appellant. It is further submitted that the there was no motive attributable to the appellant and the case rests entirely on circumstantial evidence, there being no eye- witness to the alleged occurrence. 7. Drawing the attention of the Court towards the contents of the impugned judgment, learned counsel submitted that the alleged seizure of sleepers has itself been disbelieved by the learned Trial Court on account of lack of identification, delayed recovery, and non-compliance with mandatory procedural requirements as per the governing statute and rules. The recovery of the towel was on 18.09.2013 by the family members of the victim, and the same has been falsely implanted. The towel is a fabricated and imaginary piece of evidence with no nexus whatsoever to the appellant. 8. Further, learned counsel contended that the seizure memos were prepared after a delay of one day, and no time, as to seizure was mentioned in Exhibits P-4 and P-6 (site plan). It is further contended that the testimony of PW-2 Vishnu Singh, who was also specifically named in the FIR, is not corroborated by any [2026:RJ-JP:7543-DB] (4 of 10) [CRLA-271/2016] independent witness. The prosecution has shifted the entire allegation upon the appellant and exonerated Vishnu Singh sans any justifiable reason, despite the same set of facts and circumstances. It is submitted that the investigation suffers from serious lapses and there are material contradictions in the statements of prosecution witnesses and evidence, which have not been properly appreciated by the learned Trial Court. 9. Learned counsel in support of the contentions noted insofar has placed reliance upon the ratio encapsulated in Sharad Birdhi Chand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, and has submitted that in a case based purely on circumstantial evidence, every hypothesis consistent with the innocence of the accused must be ruled out and the chain of circumstances must be complete so as to lead only to the conclusion of guilt. It is contended that in the present case, in the absence of motive, eye-witness testimony, or recovery of any tangible incriminating evidence, other than the alleged and imaginary exhibits in the form of samples, the prosecution has failed to establish a complete chain of circumstances. It is further submitted that merely on the basis of the statement of the co- accused Vishnu Singh, the appellant has undergone custody for approximately 12 and a half years, and therefore, in the interest of justice, he deserves to be acquitted forthwith. 10. Per contra, learned Public Prosecutor while vehemently opposing the prayer made by the appellant and supporting the findings recorded by the learned Trial Court in the impugned judgment dated 27.01.2016, submitted that the learned Trial Court has meticulously considered each objection raised by the [2026:RJ-JP:7543-DB] (5 of 10) [CRLA-271/2016] appellant and, upon due appreciation of the material evidence and other vital aspects on record, has written its findings in accordance with law. 11. Having heard learned counsel for the parties, upon careful consideration of the entire material available on record and the judgment cited at the Bar, this Court is of the considered view that the prosecution case suffers from serious and material infirmities, thereby entitling the appellant to a clean acquittal, for the reasons delineated hereinbelow: 11.1 That the date of the alleged incident is 18.09.2013, and PW-2 Vishnu Singh and PW-10 Hari Singh (the informant of the FIR and father of the victim respectively) have admitted in their testimonies that they were aware of the occurrence of the alleged incident on the very same date and that the dead body of the victim was recovered from the pond on 18.09.2013, and despite such admitted knowledge to the father of the victim, the FIR came to be registered only on the next day, i.e., 19.09.2013 at/around 11:05 hours. 11.2 That from Ex.P-3 and Ex.P-4 i.e. seizure memo, and on the basis of the statements of PW-2, PW-6 and PW-10, it is evident that the towel was traced from the place of occurrence on 18.09.2013. However, its seizure was reflected only on 20.09.2013, without any identification proceedings. This circumstance gives rise to serious doubt and indicates that the said recovery appears to be implanted evidence. Furthermore, Ex.P-4 and Ex.P-6 do not mention the time of seizure, which further casts doubt on the authenticity of the alleged recovery. [2026:RJ-JP:7543-DB] (6 of 10) [CRLA-271/2016] 11.3 That as the recovery of sleepers and its seizure is concerned, the learned trial Court itself has disbelieved the same. The said recovery was disbelieved on the basis of the statements tendered by the prosecution witnesses. 11.4 That PW-7 Jitendra, in his statement and testimony, deposed that on the same day the sleepers as well as the towel were seized and that the site plan was also prepared on the same day. However, a perusal of seizure memos (Ex.P-3 and Ex.P-4) reveals that the sleepers were seized on 29.09.2013, whereas the towel was seized on 20.09.2013. Further, as per the statement of PW-10 Hari Singh, there is mention of the towel being traced on 18.09.2013 and recovered on 19.09.2013 itself. There is no cogent investigation or admissible evidence to establish that the said towel belonged to the appellant. 11.5 That it is trite law that as per the ‘last seen theory’, it is presumed that the person last seen with the deceased knows how the death occurred, and the last seen person herein is the co- accused as mentioned in the FIR i.e. Vishnu Singh. In the matter at hand, the conviction of the appellant is solely based on circumstantial evidence and no substantial nexus is drawn inter-se the alleged actions of the appellant, the testimony rendered by PWs 2 and 10 (Vishnu Singh and Hari Singh) the medical report and auxiliary material available on record. 11.6 That the reason of death of the victim in the postmortem report (Ex.P-1) is stated to be “Asphyxia due to smothering” however, the same can also be caused by inflow of muddy water into the trachea of the victim, as the dead body was recovered from littoral zone of the pond. The towel that is [2026:RJ-JP:7543-DB] (7 of 10) [CRLA-271/2016] recovered alongside the dead body cannot necessarily be used for causing death by smothering, moreover, no substantial evidence qua the same is place on record. 12. In the present case, the FSL report (Ex.P-16) categorically states that in the viscera samples preserved at the time of post- mortem examination, there was no presence of ethyl or methyl alcohol. Moreover, there is no rational explanation from the investigation or prosecution as to why Vishnu Singh (PW-2), who was also named in the FIR under identical facts and circumstances, was exonerated and the appellant was convicted. The statements of Vishnu Singh, which have been relied upon by the prosecution, are not trustworthy qua the appellant, particularly in the absence of any eye-witness or “last seen” evidence other than his own version. Nonetheless, the testimony of PW-10 Hari Singh, i.e. informant, is admittedly based on hearsay. It is also note-worthy that with regard to the alleged consumption of liquor by the victim along with Gordhan Singh and Vishnu Singh, there has been no recovery of any liquor bottle or packaging (pavva), which constitutes a serious lapse on the part of the prosecution; and makes the story as built by the prosecution ab initio futile. The theory of motive, namely, that a quarrel ensued because Dharmendra denied Gordhan further liquor, therefore, appears to be speculative and perverse in light of the above deficiencies. Moreso, the conduct attributed to PW-2, namely that he ran away after receiving a slap instead of intervening in the alleged quarrel between his friend (the victim) and the appellant, also does not inspire confidence. However, the [2026:RJ-JP:7543-DB] (8 of 10) [CRLA-271/2016] learned Trial Court has erred and omitted to consider these vital aspects of the instant case. 13. The post-mortem report records nine injuries and opines that death was caused due to “Asphyxia due to smothering”. However, such medical opinion must be supported by substantive and reliable evidence connecting the appellant to the alleged offence. In the present case, there is no eye-witness and the matter rests entirely on circumstantial evidence. It is well settled that an accused cannot be convicted merely on the basis of suspicion or doubt. In cases resting on circumstantial evidence, the chain of circumstances must be so complete and conclusive as to leave no reasonable ground for a conclusion consistent with the innocence of the accused and must show that, in all human probability, the act was committed by the accused. There is a clear distinction in criminal jurisprudence between “may be” and “must be”; guilt cannot be founded upon hypotheses or conjectures. The prosecution must fully establish its case to warrant a finding of guilt. 14. Concluding the aforementioned, it can be noted that in the present case, the alleged motive as projected by the prosecution, the recovery of the towel traced on 18.09.2013 but seized on 20.09.2013 without proper identification or explanation (as deduced from the contents of Ex. P-3), the seizure of sleepers having been disbelieved by the learned Trial Court itself, the FSL report showing absence of ethyl/methyl alcohol in the viscera sample, which makes the story of the prosecution ab initio futile, the testimony of interested witnesses PWs 2 and 10 (Vishnu Singh and Hari Singh), particularly PW-2 Vishnu Singh who was initially [2026:RJ-JP:7543-DB] (9 of 10) [CRLA-271/2016] named as co-accused, the hearsay nature of the statement of PW- 10 Hari Singh, the delay in lodging the FIR, and the absence of any rational motive attributable to Gordhan Singh, and most vital fact that sans any findings and reasoning, the alleged accomplice – Vishnu Singh, who was also named in the FIR under identical facts was exonerated, cumulatively create serious doubts about the prosecution case. In view of the aforesaid facts and circumstances, this Court is of the considered opinion that the prosecution has failed to establish a complete and unbroken chain of circumstances against the appellant. Consequently, the appellant is entitled to a clean acquittal, and the impugned judgment and order of conviction deserve to be set aside and quashed. 15. Resultantly, the appeal is allowed. The judgment dated 27.01.2016 passed by the learned Additional Sessions Judge, Bandikui, District Dausa in Sessions Case No.11/2013 is quashed and set aside and the appellant is acquitted of the charge framed against him. Since, the appellant is in custody, he be set at liberty forthwith if not warranted in any other case. 16. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Gordhan Singh, son of Shri Ghanshyam 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 [2026:RJ-JP:7543-DB] (10 of 10) [CRLA-271/2016] Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly. (SAMEER JAIN),J (MAHENDAR KUMAR GOYAL),J DEEPAK /64