[2026:RJ-JP:10612-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal (Db) No. 189/2019 Hardeva @ Mahendra @ Suresh S/o Shri Manguram R/o Sanwalpura Police Station Khatushyam Dist. Sikar Raj. (At Present Confined In Central Jail Bikaner) ----Appellant Versus State Of Rajasthan, Through P.P.. ----Respondent For Appellant(s) : Mr. Deepak Soni For Respondent(s) : Mr. Amit Punia, PP Mr. Avinash Fenin with Ms. Payal Goyal for Mr. Amit Singh Shekhawat HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment 13/03/2026 (Per Hon'ble Mr. Justice Mahendar Kumar Goyal) This appeal is preferred by the accused-appellant (for brevity "the appellant") assailing the legality and validity of the judgment dated 16.03.2019 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and the Commission for Protection of Child Rights Act, 2005 Sikar (for short “the learned trial Court”) in Sessions Case No. 203/2018 whereby, he has been convicted and sentenced as under:- 1. Section 376 IPC:- Life imprisonment and fine of Rs.20,000/-; in default whereof, one year’s additional imprisonment. [2026:RJ-JP:10612-DB] (2 of 8) [CRLAD-189/2019] 2. Section 302 IPC:- Life imprisonment and fine of Rs.20,000/-; in default whereof, one year’s additional imprisonment. 3. Section 201 IPC:- Seven years’ imprisonment and fine of Rs.10,000/-; in default whereof, six months’ additional imprisonment. All the substantive sentences to run concurrently. The relevant facts in brief are that Shri Jhabar Mal (PW-4) lodged a written report (Ex.P3) with the SHO Police Station Ranoli District Sikar on 30.09.2014 at about 9.30 AM stating therein that at about 8.00 AM on 29.09.2014, his mother Smt. Sukhli Devi had gone to their agricultural field but, did not return by 6.00 PM. After intense search, her body was found inside a clump having a shawl noose tied around her neck. It was alleged that some unknown person had murdered her and had also injured her private parts. Based thereupon, an FIR No. 261 dated 30.09.2014 came to be registered under Sections 302 and 201 IPC. During the course of the investigation, the appellant was arrested and after investigation, he was charge-sheeted under Sections 302, 376 & 201 IPC whereunder, charges were also framed. After trial, he has been convicted and sentenced, as stated hereinabove. Assailing the impugned judgment, learned counsel for the appellant submitted that the learned trial court erred in believing Shri Nagarmal (PW-1), Smt. Sita (PW-2) and Smt. Kamla (PW-14) as the witnesses of last seen whereas, from their testimony, it was reflected that they have not seen the appellant with the deceased in the close proximity of time when the offence was allegedly committed. He submitted that even otherwise, police statement of [2026:RJ-JP:10612-DB] (3 of 8) [CRLAD-189/2019] Sh. Nagarmal was recorded after two and half months of the incident and in his cross-examination as PW-1, he has admitted that averment in his police statement (Ex.D1) that the appellant and deceased were sitting below a tree hiding themselves, was false; rather, they were sitting in open, visible to all. Learned counsel submitted that further, Smt. Sita as well as Smt. Kamla have stated that both; the appellant as also the deceased, had gone on the way leading to Khalda which was a public way and merely because they had gone on the same way, it could not have been presumed that the appellant committed murder of Smt. Shukli. He canvassed that even otherwise, except the evidence of ‘last seen’, there was no other incriminating evidence available on record to connect him with the alleged offence. Learned counsel submitted that it is a golden principle of law that in a case based on circumstantial evidence, the prosecution must establish a complete chain of circumstances leading to only conclusion of guilt of the accused wiping out any probability of his innocence. He, therefore, prayed that the appeal be allowed, the judgment impugned dated 16.03.2019 be quashed and set aside and he be acquitted of the charges framed against him. Per contra, learned Public Prosecutor, assisted by learned counsel for the complainant, opposing the submissions made by learned counsel for the appellant, contended that the findings of the learned trial Court are based on appreciation of cogent evidence available on record and warrant no interference by this Court. They, therefore, prayed that the appeal be dismissed. Heard. Considered. [2026:RJ-JP:10612-DB] (4 of 8) [CRLAD-189/2019] Indisputably, the case is based on circumstantial evidence and except the evidence of "last seen", there is no other incriminating evidence available on record to connect the appellant with the alleged offence. The prosecution case rests upon the testimony of Sh. Nagarmal (PW-1), Smt. Sita (PW-2) and Smt. Kamla (PW-14) as the witnesses of last seen. While Shri Nagarmal has stated that on the fateful day, at about 9:00-9:30 AM, he saw the appellant sitting by side of the road along with the deceased and when he returned in the evening, he came to know that she was murdered below the tree she was sitting. During his cross- examination, he has admitted the suggestion that they were sitting in open and were visible to everybody. He denied his police statement (Ex.D1) to the extent he had stated that they were sitting below a tree hiding themselves. Thus, there is material improvement in his court statement from the police statement. It is noteworthy that the site plan (Ex.P.7) shows that the dead body was recovered from a clump and not from an open place. Further, the Investigating Officer Shri Inderaj Marodiya (PW-12) has admitted, during his cross-examination, that this witness had approached him two and half months after the incident whereupon, his police statement was recorded. This unexplained inordinate delay also raises a doubt as to the veracity of his deposition. So far as the deposition of remaining two witnesses; namely Smt. Sita and Smt. Kamla is concerned, we do not find the same to be creditworthy and that it was safe for the learned trial Court to have recorded the findings of the conviction of the appellant [2026:RJ-JP:10612-DB] (5 of 8) [CRLAD-189/2019] based thereupon. While, Smt. Sita has stated that Shukli had gone the same way on which the appellant had already gone; Smt. Kamla has stated that the appellant followed Shukli. Further, indisputably, the way, both have allegedly taken, was the public way and anybody could have visited it. Furthermore, a perusal of record reflects that their police statements were also recorded with delay without any explanation for it. In view thereof, we are not convinced that their testimony could be reckoned as that of “last seen”. The prosecution has also relied upon the test identification parade as ancillary to the evidence of ‘last seen’ wherein, Smt. Sita as also Smt. Kamla have identified the appellant. However, in view of findings already recorded by us to the effect that these witnesses could not be reckoned as the witnesses of “last seen”, identification of the appellant by them is rendered of no evidentiary value. As already observed, except the evidence of "last seen", the prosecution has not come out with any other incriminating evidence to connect the appellant with the alleged offence. A Three-Judges-Bench of the Hon’ble Supreme Court has in the case of Sanjay Vs. State of Uttar Pradesh: 2025(2) SCR 1790, held as under:- "32.The only circumstance remaining against the accused that can be believed, is the last seen theory. PW1, PW2, PW3 and PW6 and PW7 have deposed that they saw the accused lastly with the deceased. It is settled law, however, that conviction cannot be solely [2026:RJ-JP:10612-DB] (6 of 8) [CRLAD-189/2019] based on last-seen theory. This Court in Krishnan v. State of T.N., (2014) 12 SCC 279 had observed: "21. The conviction cannot be based only on the circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar [1994 Supp (2) SCC 372: 1994 SCC (Cri.) 1551] this Court held as follows: (SCC p.385, para 31) "31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7- 1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." XXXXXX XXXXXX 24. In Jaswant Gir v. State of Punjab [(2005) 12 SCC 438: (2006) 1 SCC (Cri) 579] this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely based on "last seen together' even if version of the prosecution witness in this regard is believed." In the backdrop of the aforesaid precedential law, we are of the view that the learned trial Court erred in recording finding of [2026:RJ-JP:10612-DB] (7 of 8) [CRLAD-189/2019] guilt of the appellant based only on ‘last seen’ evidence. Moreover, a perusal of the judgment impugned shows that while holding the appellant guilty of offence, learned trial court has also relied upon the Ex.P22 and the Ex.P23-the judgments of the learned Sessions Court in other criminal cases whereby, he was convicted for the offence under sections 376/511 IPC and under Sections 376, 323, 324 and 379 IPC respectively. The aforesaid judgments of the conviction of the appellant were not relevant for decision in the instant case in view of the provisions contained under Sections 42 and 43 of the Indian Evidence Act, 1872. We, therefore, find that this consideration of extraneous and inadmissible evidence has also vitiated the findings recorded by learned trial Court. In the conspectus of the aforesaid analysis, we are not persuaded to uphold the findings recorded by the learned trial Court. Resultantly, the appeal is allowed. The judgment dated 16.03.2019 passed by the learned Special Judge, Protection of Children from Sexual Offences Act 2012 and Commissions for Protection of Child Rights Act, 2005 in Sessions Case No. 203/2018 is quashed and set aside and the appellant is acquitted of the charges framed against him. Since, the appellant is in custody, he be set at liberty forthwith if not warranted in any other case. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Hardeva @ Mahendra @ Suresh S/o Shri Manguram is directed to furnish a personal bond in the sum of Rs.25,000/- and [2026:RJ-JP:10612-DB] (8 of 8) [CRLAD-189/2019] 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 or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (BHUWAN GOYAL),J (MAHENDAR KUMAR GOYAL),J Anu /74