Rajasthan High Court - Jodhpur
Phool Ji And Ors vs State Of Rajasthan on 14 October, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:44707-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 438/1993
1. Phool Ji S/o Shri Oonkar, resident of Chotipadal, District
Banswara.
2. Keshu S/o Shri Harji, resident of Chotipadal, district
Banswara.
3. Mangilal S/o Shri Oonkar, Resident of Chotipadal, District
Banswara. (appeal stands abated vide order dated 21.02.2008)
4. Roopa S/o Shri Harji, resident of Chotipadal, District
Banswara.
----Appellants
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Bhagat Dadhich
Mr. K.C. Sharma
For Respondent(s) : Mr. Chandra Shekhar Ojha, PP
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MRS. JUSTICE SANGEETA SHARMA Judgment reserved on: 06/10/2025 Pronounced on : 14/10/2025 By the Court (PER, SANGEETA SHARMA, J):-
1. The present appeal has been preferred under Section 374(2) of the Criminal Procedure Code against the judgment and order dated 22.05.1993 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.83/92 whereby the appellants were held guilty for the offences punishable under Section 302, 201 of IPC. For the offences under Section 302 IPC, the appellants were sentenced to life imprisonment with a fine of Rs.1,000/- and in default of payment of fine to further undergo 3 months' rigorous imprisonment and for the offence under Section 201 IPC, the appellants were sentenced to undergo two years rigorous imprisonment with a fine of Rs. 1,000/- and in default of (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (2 of 11) [CRLA-438/1993] payment of fine to further undergo 3 months' rigorous imprisonment.
2. The charges for the offences under Section 302, 201 of IPC were framed against the accused persons to which they denied and demanded Trial. The prosecution examined as many as 16 witnesses in support of its case and exhibited 41 documents. The accused persons were examined under Section 313 of Cr.P.C. wherein they denied the commission of offences and stated that they are falsely implicated.
3. Brief facts of the case are that on 09.03.1990, appellant- accused Keshu and Phool Ji approached to PW-1 - Deep Shanker and tendered an extra judicial confession to the effect that they had murdered Poonam and Jassi along with the appellant Mangi Lal and Roopa. On the basis of above facts, an FIR was lodged and investigation commenced accordingly. After investigation, Police filed the charge-sheet against the accused persons under Section 302 and 201 of the IPC and and the trial commenced accordingly. After hearing both the parties as well as considering the material and evidence placed on record, the learned trial Court passed the impugned judgment which is the subject matter of the present appeal.
4. At the outset of the hearing, it has been brought to the notice of the Court that accused-appellant Mangi Lal has passed away on 23.06.2007, in light of this submission, the appeal stands dismissed as abated qua the aforesaid deceased - accused Mangi Lal. In this view of the matter, the present appeal survives only qua the appellants Phool Ji, Keshu and Roopa.
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5. During the arguments the learned counsel for the appellant submits that there was no previous enmity or quarrel between the deceased and the accused persons and there was no motive or intention for the appellant - accused to commit the murder of the deceased Jassi and Poonam. He further submitted that the prosecution case hinges upon the circumstantial evidence i.e. extra judicial confession, recovery of skeleton, hair clips, Kasiya, clothes and ashes of the burnt clothes of the deceased and identification proceeding etc. as there is no eye witness of the incident.
6. Learned counsel further asserted that the Court below has misread the evidence and misguided in coming to the conclusion that the prosecution established a convincing chain of circumstances based on material evidence and witnesses leading to the appellants' conviction and sentence. He further argued that there exists glaring gaps in the evidence produced by the prosecution creating a doubt regarding the incident much less the appellants involvement in the alleged offence.
7. Learned counsel further submitted that for the prosecution to establish a case based on circumstantial evidence, a complete chain of events that leads to an inescapable conclusion of accused's guilt must be established leaving no room for alternative explanation(s). He pointed out several loops in the evidence presented by the prosecution with regard to the sequential occurrence of the incident and circumstances surrounding the death of deceased Poonam and Jassi.
8. Learned counsel further highlighted the said aspect in reference to the evidence including deposition and cross-
(Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (4 of 11) [CRLA-438/1993] examination of the witnesses. At the end, he asserts that prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. Prayer has thus been made for allowing the present appeal and acquittal of the appellants.
9. On the other hand, learned counsel for the State has made an effort to explain out the circumstances supporting the prosecution case based on evidence led by the prosecution. He thus supported the findings of the learned trial Court as also the conviction and sentence awarded to the appellants. He prays for dismissal of the present appeal.
10. Having heard the learned counsel for the parties and perused the material available on record and with their assistance, having gone through the evidence carefully as presented by the prosecution. It is apparent and has not been disputed that there is no eye witnesses of the incident in question and therefore, the prosecution case is solely based upon the circumstantial evidence. This casts an enhanced burden on the prosecution to demonstrate an unbroken chain of events that establishes the accused's guilt for the alleged offence.
11. The prosecution is required to prove that there is continuity in the sequence of events leading to an irresistable conclusion of offence being committed by the accused appellants and no one else.
12. Before proceeding further, it would be appropriate to mention the principles as have been enunciated by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116, wherein the Hon'ble Supreme Court has formulated the five golden principles (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (5 of 11) [CRLA-438/1993] (Panchsheel) which would determine the parameters within which the case of the prosecution, if based on circumstantial evidence is to be tested with regard to the establishment of the offence stated to be committed by the appellants - accused. These Panchsheel principles are extracted below:-
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and tendency;[163G]
4. They should exclude every possible hypothesis except the one to be proved; and [163H]
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. [164B]
13. Having noted these principles governing the case based on circumstantial evidence, we now proceed to discuss the evidence led by the prosecution to bring home the charges against the accused-appellants.
14. The prosecution presented the following circumstances in its endeavour to establish the charge of committing the murder and causing the disappearance of evidence of the offence of murder against the appellants.
15. The extra judicial confession being made by the appellant Keshu and Phool Ji. The disclosure statement made by the (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (6 of 11) [CRLA-438/1993] appellant leading to the recovery of skeleton, blood stained clothes, pieces of bangles and ashes of burnt clothes, hair pin, Kasiya etc. at the instance of the accused-appellants.
16. The prosecution heavily relied upon the the extra judicial confession said to be made by the appellant Keshu and Phool Ji to PW-1 Dev Shanker and alleged incriminating recoveries which ultimately led to the conviction of the appellants. It is a cardinal principle that an extra judicial confession must be accepted with great care and caution. If found reliable and convincing then an extra judicial confession may be used as a corroboration for other evidence to record conviction of the accused. It is undisputed that initially nobody suspected that the appellants have committed the murder of Jassi and consequently missing complaint was lodged by mother and father of the deceased Jassi. The appellant came to be implicated only on 09.03.1990 i.e. when the appellant Keshu and Phool Ji allegedly made an extra judicial confession to PW-1 - Deep Shanker.
17. Apparently, when no finger of suspicion was pointing towards the appellants, they could not have any plausible reason to abruptly go and make their confession as narrated in written complaint - Exp.1. It is pertinent to mention that PW-1 Deep Shanker around whom the whole story rotates has been declared hostile and he did not support the facts mentioned in Exp.1 - the written complaint and categorically stated that the accused- appellants Keshu and Phool Ji never came to him nor they have made any confession of murdering the deceased Jassi. Father and mother of the deceased - Jassi PW-7 (Madhu) and PW-8 (Somi) (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (7 of 11) [CRLA-438/1993] stated in their Court statement that one Poonam took away their daughter Jassi from Ahmedabad. Father and mother of the deceased Jassi talks about one Poonam who ran away with their daughter before 'Navratri' and it is very strange that needle of the investigation pointed out nothing about the said Poonam. It is further stated by the parents of the deceased Jassi that Roopa and Mangi Lal were known to them as they used to do some work in Ahmedabad and have brotherly relation with their daughter. Father, mother and brother of the deceased - Jassi and the other witnesses examined by the prosecution did not give any impression of animosity with the accused-appellants nor they cast any suspicion on them. During the course of trial, PW-7 (Madhu) and PW-8 (Somi) father and mother of the deceased did not utter a single word of any animosity with the appellants - accused otherwise also no plausible motive has been corroborated behind the murder of the deceased - Jassi and on the same lines, PW-11 (Harish Chandra) turned hostile and disown the fact of any confessional statement made by the accused-appellants Keshu and Phool Ji to PW-1 (Deep Shanker), not only this, he categorically stated that none of the articles were recovered in his presence at the instance of the accused-appellants.
18. In this light, no circumstance or motive whatsoever was imposed on the appellants for the murder of the deceased - Jassi by any of the prosecution witnesses including the Investigating Officer. Thus, evidently the appellants have no motive whatsoever to commit the murder of the deceased - Jassi. Hence, the entire prosecution story put forth regarding the extra judicial confession (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (8 of 11) [CRLA-438/1993] allegedly made by the appellant accused Keshu and Phool Ji to PW-1 Deep Shanker turns out to be false, as he has completely denied the confession, thus, the same deserves to be discarded.
19. The other link in the chain of incriminating circumstances relied upon by the prosecution is that of the recovery of the skeleton alleged to be of the deceased - Jassi. It is pertinent to mention that during investigation, no DNA test was conducted nor any other scientific evidence was led to prove that the skeleton was that of Jassi. In this backdrop, the skeleton, recovered cannot be said to be of the deceased-Jassi.
20. As far as the other recoveries of the alleged murder weapon i.e. Kasiya, hair pin, blood stained clothes, pieces of broken bangles and ashes of burnt clothes are said to be recovered on the basis of the disclosure statement made by the appellants. In this regard, we have gone through the testimony of Investigating Officer - Mukhtyar Khan (PW-15) and the statement of the independent witness of recovery memo Exp. 11, 13, 14, 16, PW-4 (Khatu) and found that Investigating Officer has not given any detail whatsoever regarding disclosure statement allegedly made by the appellants. In addition thereto, PW-4 (Khatu) turned hostile and stated that nothing was recovered at the instance of the accused in his presence. The first and the basic infirmity in the evidence of the Investigating Officer is that he had not deposed the exact statement said to have been made by the appellants which ultimately led to the discovery of the fact relevant under Section 27 of the Indian Evidence Act.
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21. Applying the above principle of law, we find that the evidence of the Investigating Officer is not reliable and trustworthy. In this backdrop, the Investigating Officer had not made any statement that all the articles which were allegedly recovered at the instance of the appellants were packed and sealed on the spot and deposited in the 'Malkhana' .
22. During the course of trial, no 'Malkhana' register was ever produced and exhibited nor the 'Malkhana' incharge was examined. The recovery of alleged murder weapon Kasiya and blood stained clothes of deceased - Jassi allegedly recovered at the instance of the accused-appellants and claimed to be forwarded to the FSL for forensic examination, but no FSL report was ever produced in the Court.
23. At this juncture, it is pertinent to mention that as per prosecution story, some of the clothes of the deceased Jassi were destroyed by the appellants - accused and ashes of burnt clothes was said to be recovered at the instance of the appellant - accused. It seems to be against the common prudence that on one side the appellants are much vigilant and destroyed the clothes of the deceased Jassi which were her normal daily wearing clothes and on the other side the alleged blood stained clothes of the deceased Jassi were kept with them, it seems to be highly improbable. In view of the aforesaid evidence of the witness PW-14 (Surendra Kumar Sharma) likewise the evidence of PW-8 (Somi), gives no assistance to the prosecution story.
24. In this case, the initial Investigating Officer Abhay Singh who is said to have recovered the skeleton, arrested the accused-
(Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (10 of 11) [CRLA-438/1993] appellants Keshu and Phool Ji is not examined without any reasonable cause. No other evidence was led by the prosecution to bring home the guilt of the accused-appellants as the independent witness PW-2 (Narji), PW-3 (Vesta), PW-12 (Bheriya) also turned hostile, therefore, we find that the prosecution has failed to prove even one of the so called incriminating circumstances attributed to the accused-appellants so as to confirm the guilt. Hence, the conviction under Section 302 and 201 of IPC based solely on the circumstantial evidence such as recovery of skeleton, blood stained clothes, hair pin, broken pieces of bangles, ashes of burnt clothes is highly challenging and raise a doubt about the fairness of the investigation especially when most of the material witnesses turned hostile and the person to whom the confession was made has also turned hostile. So, the extra judicial confession looses its credibility. Likewise the recovery of weapon or other incriminating items i.e. blood stained clothes, hair pin etc. at the instance of accused-appellants is a weak type of evidence and is not sufficient for sustaining a conviction on its own. It must be corroborated by other substantial evidence, so here in this appeal the chain of circumstantial evidence is broken and incomplete, as the suspicion against the appellant-accused however strong, cannot replace legal proof. So the benefit of doubt is to be given to the accused-appellants leading to an acquittal.
25. Thus, the prosecution has not been able to establish its case beyond reasonable doubt that the appellant-accused had committed an offence under section 302 and 201 of the IPC. In (Uploaded on 14/10/2025 at 06:36:06 PM) (Downloaded on 14/10/2025 at 10:01:35 PM) [2025:RJ-JD:44707-DB] (11 of 11) [CRLA-438/1993] the result, we hold that the learned trial court has convicted and sentenced the appellant accused Phool Ji, Keshu and Roopa under Section 302 and 201 of the IPC upon erroneous appreciation of evidence. As a consequence of the discussion made hereinabove, the conviction of the appellant accused namely Phool Ji, Keshu and Roopa and the order of sentence recorded by the trial Court cannot be sustained.
26. Accordingly, the instant appeal is allowed and the impugned judgment and order dated 22.05.1993 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.83/93 is hereby quashed and set aside. The appellants are acquitted of the charges under Section 302 and 201 of the IPC. They are on bail, their bail bonds are discharged.
27. They need not surrender and set at liberty forthwith. In view of the provisions of Section 437-A Cr.P.C./481 BNSS 2023, the appellants are directed to furnish a personal bond amounting to the sum of Rs.50,000/- and surety bond of the like amount before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, to the effect that in the event of special leave petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice, shall appear before the Supreme Court.
28. All pending applications stand disposed of. Record of the trial Court be sent back forthwith.
(SANGEETA SHARMA),J (DINESH MEHTA),J
34-amit/-
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