Jagdish vs State Of Rajasthan Through P P
2022 Latest Caselaw 1908 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 D.B. Criminal Appeal No. 2047/2017

   Jagdish S/o Shri Girdhari Lal, R/o Mahaveer Colony, Modak
   Goan, Police Station Modak, District Kota, Raj.
   (At Present Confined In Central Jail, Kota).
                                                                     ----Appellant
                                      Versus
   State Of Rajasthan Through PP.
                                                                   ----Respondent

For Appellant(s) : Mr. Govind Prasad Rawat with Mr. T.C.

Swami For Respondent(s) : Mr. Javed Choudhary, Addl. GA

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment

Date of Reserve :: 22.02.2022 Date of Pronouncement :: March 03, 2022 (PER ANOOP KUMAR DHAND, J) Reportable

The appellant has preferred instant appeal under Section

374(2) Cr.P.C aggrieved against the judgment dated 25.10.2017

passed by the Court of learned Additional Sessions Judge,

Ramganj Mandi, District Kota (hereinafter referred to as 'the trial

Court') in Sessions case No.28/2016, whereby the appellant-

Jagdish has been convicted and sentenced as under:-

   Offence Under        Sentence                     Fine           In default of
      Section                                                        Payment of
                                                                        Fine
      302 IPC              Life                   5,000/-          One month RI
                      Imprisonment

Skeleton facts relevant and essential for disposal of the appeal are

as under:-

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'On 19.08.2016, the FIR bearing No.185/2016 (Ex.P-8) was

registered at Police Station Modak, District, Kota on the basis of

the written report (Ex.P.42) submitted by Babu Lal (PW-2). In the

report, he alleged that he is resident of Mahaveer Colony, Modak.

They are three brothers. Yesterday, on the day of 'Rakshbandhan',

his wife Badam Bai and children Pooja and Vishan were at home.

His mother Sita Bai and Jagdish were also at home. On the same

day, at about 2:30 PM, Pappu, son of his brother-in-law

Bhanwarlal came on a motor cycle to take his wife. His wife

Badam Bai and daughter Pooja went with Pappu to his matrimonial

home at Vrindavan, Jhalawar. After some time, he along with his

son Vishan went to his matrimonial home. At that time, his mother

and brother Jagdish were at home. He reached his matrimonial

home at 4:30 PM and at 10:00 PM, he returned back with his son

Vishan at his home. He consumed more liquor as a result of which

slept in his room. When he awoke at 7:30 A.M in the morning, he

saw his mother dead in a blood-stained position. There were

injuries on her body and blood was oozing out therefrom. He

called his uncle Harlal and informed the Sarpanch of Modak Village

and told them that some unknown persons assaulted his mother

and committed her murder.

After registration of FIR (Ex.P8), investigation was

undertaken by Police Station Modak, District, Kota. After

completion of investigation, charge-sheet was submitted against

the appellant for the offence punishable under Section 302 IPC.

The Trial Court framed charges against the appellant for the

offence under Section 302 IPC. The accused-appellant, denied the

charges, pleaded not guilty and claimed to be tried. The

prosecution examined as many as 23 witnesses and exhibited 43

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documents to prove its case. The accused-appellant, upon being

questioned under Section 313 Cr.P.C, and when confronted with

the circumstances appearing against him in the prosecution

evidence denied the same and claimed to be innocent.

After hearing arguments advanced by the learned Public

Prosecutor and the learned defence counsel and upon appreciating

evidence available on record, the trial Court convicted and

sentenced, the appellant as indicated here-in-before. The accused-

appellant being aggrieved with the impugned judgment dated

25.10.2017 has preferred instant appeal.

Learned counsel for the appellant vehemently contended that

the entire prosecution case is false and fabricated. The

prosecution has failed to bring home the charges against the

accused on the strength of circumstances of last seen of the

deceased with the appellant. Counsel further submitted that the

material prosecution witnesses namely; PW-1 Kamlesh, PW-2

Babulal, PW-3 Shankarlal, PW-6 Madanlal, PW-7 Satyanarain, PW-

9 Harlal, PW-11 Ratani Bai PW-12, Tej Singh, PW-13 Jiyauddin and

PW-20 Radheyshyam did not support the prosecution story and

turned hostile.

Counsel further submits that as per Post-Mortem report

(Ex.P.10), the cause of death of the deceased was 'Asphyxia'

while there is no allegation of throttling against the appellant

hence there was no occasion that the clothes of the accused were

found with blood-stain. As per FSL report (Ex.P.43), there was

human blood on the clothes but the blood group was found to be

'inconclusive'. Counsel submitted that the statements of the

witnesses create doubt on the veracity of their presence. Counsel

for the appellant next submitted that there are improvements in

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the statements of the witnesses recorded during the course of the

trial. The improvement made before the Court is not there in their

Police statements which were recorded after the occurrence. On

the above ground, learned counsel for the appellant submitted

that the instant criminal appeal be allowed, the impugned

judgment of conviction and sentence be set aside and the

appellant be acquitted from the charges levelled against him.

Per contra, the learned Public Prosecutor vehemently

opposed the submissions advanced by the learned counsel for the

appellant and submitted that the prosecution has proved its case

against the appellant by pleading cogent and convincing evidence

forming complete unbroken chain of circumstantial evidence.

Learned Public Prosecutor further submitted that PW-2

Babulal is the son of the deceased and the brother of the

appellant, who lodged the FIR (Ex.P-8) against the unknown

person who committed the murder of his mother, but he has

mentioned that when he, his wife Badam Bai and children went to

his maternal home on Rakshabandhan i.e. on 18.08.2016 only

Jagdish was there at home with his mother and no one was

present at home and this fact is also proved from the testimonies

of PW-16 Badam Bai, PW-15 Kailash, PW-11 Ratani Bai. PW-2

Babulal returned back from his in-laws house in the night on

18.08.2016 and he and his son slept there because he consumed

liquor. Next day, when he awoke, he found his mother as dead in

blood-stained condition. Learned Public Prosecutor also submitted

that when PW-11 Ratani Bai came on the spot and found Sita Bai

as dead, appellant-Jagdish was not there at home. PW-12 Tej

Singh deposed that when he reached at the spot, all family

members were there except the appellant-Jagdish. When

(5 of 16) [CRLA-2047/2017]

Radheyshyam brought the appellant from canteen, the appellant-

Jagdish was disturbed and he was not talking to any one. PW-20

Radheyshyam stated that the dead body of Sita Bai was lying at

home and Jagdish was not there. He brought Jagdish near from

Mangalam Factory where he used to work. Learned Public

Prosecutor further submitted that the FSL report (Ex.P43) clearly

indicates that human blood was found on the clothes of the

deceased and the appellant, which clearly proves the case beyond

any reasonable doubt against the appellant. Thus, the criminal

appeal filed by the accused-appellant be dismissed and the

judgment dated 25.10.2017 passed by the trial court be

confirmed.

We have given our thoughtful considerations to the

submissions advanced at bar and have also gone through the

impugned judgment and carefully re-appreciated the evidence

available on record.

It has been consistently laid down by the Hon'ble Supreme

Court in catena of judgments that where a case rests squarely on

circumstantial evidence, the inference of guilt can be justified only

when all the incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of any

other person. In the following judgments, Hukam Singh v. State of

Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR

1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446);

State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v.

State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State

of M.P. (AIR 1989 SC 1890), the Hon'ble Apex Court has held that

the circumstances from which an inference as to the guilt of the

accused is drawn have to be proved beyond reasonable doubt and

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have to be shown to be closely connected with the principal fact

sought to be inferred from those circumstances. In Bhagat Ram v. State

of Punjab (AIR 1954 SC 621), it was laid down that where the case

depends upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to negate

the innocence of the accused and bring the offences home beyond

any reasonable doubt.

We may also make a reference to a decision of Hon'ble Apex

Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC

193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC

79), it was laid down that when a case rests upon circumstantial

evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104), it was pointed out that great care must be taken in

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evaluating circumstantial evidence and if the evidence relied on is

reasonably capable of two inferences, the one in favour of the

accused must be accepted. It was also pointed out that the

circumstances relied upon must be found to have been fully

established and the cumulative effect of all the facts so

established must be consistent only with the hypothesis of guilt.

There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-stone

of law relating to circumstantial evidence laid down by the Hon'ble

Supreme Court as far back as in 1952.

In Hanumant Govind Nargundkar and Anr. V. State of Madhya

Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

A reference may be made to the decision reported in 2017

(14) SCC 359 by following the judgment of Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein,

while dealing with circumstantial evidence, it has been held that

onus was on the prosecution to prove that the chain is complete

and the infirmity of lacuna in prosecution cannot be cured by false

defence or plea. The conditions precedent in the words of the

Hon'ble Supreme Court, before conviction could be based on

circumstantial evidence, must be fully established. They are:

(8 of 16) [CRLA-2047/2017]

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;

(2) the facts so established should be consistent 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 conclusive nature and tendency;

(4) they should exclude every possible hypothesis 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."

These aspects were highlighted in State of Rajasthan v. Rajaram

(2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.

(2003 (11) SCC 261), State of U.P. v. Ram Balak & Anr. [2008

(13) SCALE 541] and in 2017 (14) SCC 359.

Suffice to say that the case of prosecution is based purely on

circumstantial evidence in the form of last seen evidence.

Now we proceed to examine the matter in the light of the

facts mentioned above. The prosecution has mainly relied upon

the last seen theory. PW-2 Babulal, son of the deceased and

brother of the appellant in his statement indicated that the

incident occurred on the day of Rakshabandhan. On that day, he

went to his in-laws house with his family. His mother Sita Bai and

brother Jagdish were there at home on that day, Jagdish was

consuming liquor since morning. Jagdish used to quarrel with

them and mother. On that day, he threatened his mother Sita Bai

to give money for liquor otherwise he would kill her. He got the

information at his in-laws place that his mother has been

murdered. When he reached there he found his mother as dead.

(9 of 16) [CRLA-2047/2017]

Jagdish fled away but when the Police arrested him. Jagdish told

them in the presence of Police that he smashed head of Sita Bai

with the wall for want of money and because of that she died. He

reported the matter to the Police by lodging FIR (Ex.P8).

In cross-examination, this witness has admitted that on the

day of incident, he was at his in-laws house with his family and he

stayed there in the night. He used to consume liquor and on that

day also he consumed liquor and came back to his home with his

son and slept. This witness admitted that this fact was not there in

FIR (Ex.P8) that Jagdish used to quarrel with his mother for liquor

and on the day of incident, Jagdish consumed liquor. This witness

has admitted that FIR (Ex.P8) was lodged against unknown

person. He has also admitted that in his Police Statement (Ex.D1),

he did not mention that Jagdish demanded money from his

mother and smashed her head to the wall. This witness PW-2

claims himself to be witness of last seen but he is not a last seen

witness of the case because he went to his in-laws house on the

day of Rakshabandhan with his family, when he got information

that his mother was murdered in the night. When he came back

and found his mother dead, Jagdish fled away from the place of

occurrence and when Police brought him then he confessed in

front of them that he smashed head of his mother with the wall

for want of money due to which she died. This witness has

introduced a complete new story when his statement was

recorded during the trial, while in FIR (Ex.P-8), he has mentioned

that some unknown persons have committed murder of his

mother.

(10 of 16) [CRLA-2047/2017]

The conduct of this witness is so unnatural that in his

examination-in-chief, he has stated that he was at his in-laws

house, when he got the information about murder of his mother,

while in his cross-examination, he says that he came back in the

night at home, consumed liquor and slept. This witness is not sure

about his own presence on the day of occurrence that whether he

was at his in-laws place or he was at his own house and when he

got the information about the murder of his mother at his in-laws

place and when he came back to his house, and then why he

consumed liquor and slept and lodged FIR (Ex.P-8) on the next

day against unknown persons. Hence, it is clear that he is not last

seen witness who saw the appellant in the company of his mother.

PW-15 Kailash stated that two to four days prior to the

incident, his brother Jagdish (appellant) was demanding money

from his mother, when his mother got claim of Rs. 50,000/-. When

he went to his in-laws house and there was no one at home

except the mother and Jagdish. Jagdish murdered his mother in

the night and fled away. In cross-examination, this witness has

admitted that he was out of house since two to three days of the

incident. He was not aware that on the day of incident when his

mother died, Jagdish was there or not. He did not see Jagdish

killing his mother and on the basis of suspicion, he has stated that

Jagdish has committed murder of his mother. He has also

admitted that his other brother Babulal was sleeping in the other

room on the day of the occurrence. Hence, it is clear that he is

also not witness of the last seen. It also shows that the deceased

was not seen in the company of the appellant.

PW-16 Badam Bai stated in her statement that except his

mother-in-law and brother-in-law Jagdish, no one was there at

(11 of 16) [CRLA-2047/2017]

home. After returning from her matrimonial home, they came to

know that her mother-in-law Sita Bai was murdered. Jagdish

demanded money and when Sita Bai refused, he committed her

murder and fled away. In her cross-examination, she has admitted

that on the day of occurrence, she was not there at home and she

was not aware whether the appellant Jagdish was there at home

or not. She admitted in her cross-examination that Jagdish never

demanded any money in her presence. At Modak, she came to

know from the neighbor that her mother-in-law has been

murdered hence it is clear that PW-16 Badam Bai was also not the

witness of last seen.

The other material prosecution witnesses namely pW-1

Kamlesh, PW-3 Shankarlal, PW-6 Madanlal, PW-7 Satyanarain,

PW-9 Harlal, PW-11 Ratani Bai, PW-12 Tej Singh, PW-13 Jiyauddin

and PW-20 Radheshyam did not support the prosecution story and

they have turned hostile.

The Hon'ble Supreme Court in Kanhaiyalal v. State of

Rajasthan reported in (2014) 4 SCC 715, on the circumstance

of last seen, inter alia, laid down as under:-

"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

Further, in Nizam & Ors. v. State of Rajasthan : (2016)

1 SCC 550, again it was observed as under:-

"...... undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds that courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its

(12 of 16) [CRLA-2047/2017]

entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."

In view of the missing link of evidence of last seen as relied

upon by the prosecution, it is not safe to rely on the evidence of

the witnesses PW-2 Babulal, PW-15 Kailash and PW-16 Badam Bai.

Other important evidence relied upon by the prosecution pertains

to the blood-stained clothes of the deceased and the appellant on

which blood was found in FSL report (Ex. P43).

Bare perusal of FSL report (Ex.P43) indicates that only

human blood was found on the clothes and the same was

'inconclusive' for blood grouping. Hence, conviction of the

appellant cannot be made solely on the basis of FSL report in

absence of other connecting and corroborative evidence on record.

As per the statements of PW-4 Dr. Nitesh Meena, who

conducted Post-Mortem of the deceased Sita Bai on 19.08.2016,

he found the following injuries on her body.

"Lacerated wound- 3x2x1 Cm on chin

Abrasion- 3x1 Cm on Right Cheek

Abrasion- 2x2 Cm on Forehead".

This witness also prepared her Post-Mortem report (Ex.P10)

and gave opinion that the cause of death of the deceased was due

to 'Asphyxia'. This is not the case of prosecution that the appellant

caused death of the deceased by throttling her. PW-2 Babulal has

stated that in the presence of the Police, the appellant confessed

that for taking money from Sita Bai (deceased), he smashed her

head to a wall and she died. While Sita Bai did not die due to any

injury on her head. The cause of death was due to 'Asphyxia' and

there is no evidence that the death of the Sita Bai was due to

throttling caused by the appellant. PW-5 Seetaram, PW-8

Omprakash are Police constables, in whose presence the appellant

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deposed that he can tell the place of occurrence where he has

committed the murder of his mother and on the basis of this

information, site plan (Exs. P-11 & P-12) was prepared. These

witnesses have admitted in their cross-examinations that the site

plan (Exs. P-11 & P-12) were prepared in absence of any

independent witness. They are not the independent witnesses

hence no reliance can be placed on their evidence. The place of

occurrence was already known to the Police hence there is no fact

discovered in consequence of the information given under Section

27 of the Indian Evidence Act and Ex.P11 and Ex.P12 cannot be

read against the appellant.

The investigating officer PW-23 Ajeet Bagdolia arrested the

appellant on 19.08.2016 and allegedly recovered the blood stained

clothes of the accused-appellant on 21.08.2016, vide seizure

memo (Ex.P-24) from a mess of mines Garage, which is an open

place accessible to all and sundry. The Malkhana incharge (PW-17)

Smt. Geeta Panchali has stated that two seized packets i.e. Mark

'A' and 'B' were deposited in Malkhana on 19.08.2016 and the

packet Mark 'C' was deposited on 21.08.2016, while on the

contrary Malkhana Register (Ex.P-22-A) indicates that three

packets Mark 'A', 'B' and 'C' were deposited by Constables Om

Prakash on 19.08.2016. Thus, no reliance can be placed on the

recovery of blood stained clothes of the accused.

PW-19 Rakesh Singh and PW-21 Shri Brij Mohan are also

Police Constables in whose presence the blood-stained clothes of

the appellant were recovered from a 'Tin-Shed' at Mangalam

Factory. The recovery memo is Ex.P24. These witnesses have

admitted in their cross-examinations that several persons were

(14 of 16) [CRLA-2047/2017]

present in the premises at the time of recovery but even then,

none was made witness of the memo of recovery.

Hence, there is no incriminating evidence available on record

to connect the appellant with the occurrence.

The Hon'ble Supreme Court in Brijesh Mavi v. State

(NCT of Delhi) : (2012) 7 SCC 45, while dealing with a case of

circumstantial evidence, inter alia, observed as under:-

"The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra which principles have been consistently folllowed in Tanviben Pankajkumar Divetia v. State of Gujarat, Vikram Singh v. State of Punjab, Aftab Ahmad Anasari v. State of Uttaranchal, Sanatan Naskar v. State of W.B. and Mohd. Arif v. State (NCT of Delhi)."

In the case of Nizam (supra), the Hon'ble Supreme Court

also dealing with a case of circumstantial evidence, inter alia,

observed as under:-

"Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence."

In Trimukh Maroti Kirkan v. State of Maharashtra MANU/SC/8543/2006 : (2006) 10 SCC 681, Hon'ble Apex Court held as under:

"In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that

(15 of 16) [CRLA-2047/2017]

there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.

The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab MANU/SC/0740/2012 : (2012) 11 SCC 205, Sampath Kumar v. Inspector of Police, krishnagiri MANU/SC/0188/2012 : (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi) MANU/SC/0919/2011 : (2011) 13 SCC 621 and a number of other decisions."

Law is well-settled by catena of decisions that in a case

based purely on circumstantial evidence, the prosecution is

required to prove every link in the chain of circumstances by

leading clinching evidence so as to complete the chain pointing

infallibility towards the guilt of the accused and being incompatible

with his innocence. In the case in hand, we have found that

evidence about the chain of circumstances relied upon by the

prosecution to bring home the charges against eh accused-

appellant is totally flimsy, in-convincing and based purely on

conjectures and surmises and the same cannot be considered to

be trustworthy even for a moment so as to affirm the guilt of the

accused-appellant.

There is no evidence on the ground to show that the

accused-appellant was last seen with the deceased. Section 106 of

Indian Evidence Act, 1872 is not applicable to the facts of the

case, it cannot be said that the accused-appellant failed to explain

as to what happened after he was last seen together specially

when there is no evidence to show that he was last seen together

with the deceased.

A close scrutiny of the material available on record, would

disclose that the circumstance relied upon by the prosecution to

prove guilt of the accused-appellant were not complete and do not

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link to the conclusion that in all human probability, the murder

must have been committed by the accused-appellant.

In view of the above discussion, we are of the firm view that

the evidence leads pertaining to last seen is apparently incomplete

and further the prosecution theory regarding the recovery of

blood-stained clothes at the instance of the appellant is totally

cooked up in such circumstances, the evidence cannot be read

against the accused-appellant.

The trial Court committed an error while appreciating the

evidence and recording the finding and guilt against the accused-

appellant and convicting him by the impugned judgment which

does not stand to scrutiny.

As a consequence, the instant criminal appeal deserves to be

and is hereby allowed. Impugned judgment dated 25.10.2017

passed by the Court of Additional Sessions Judge, Ramganj Mandi

District, Kota in Sessions case No.28/2016 is hereby quashed and

set aside. The accused-appellant is acquitted of all the charges. He

is in custody and shall be released from the custody forthwith, if

not warranted in any other case.

However, keeping in view the provisions of Section 437A of

Cr.P.C, the accused-appellant is directed to furnish a personal bond

in the sum of Rs. 50,000/- with a surety of a like amount before

the trial court, which shall be effective for a period of six months

to the effect that in the event of filing of Special Leave to Appeal

against the present judgment on receipt of notice thereof, the

accused-appellant shall appear before the Supreme Court.

                                   (ANOOP KUMAR DHAND),J                                     (PANKAJ BHANDARI),J

                                   PRAVESH/11








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