Rajasthan High Court - Jodhpur

State vs Naina Ram on 23 April, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:19013-DB]                (1 of 16)                        [CRLA-152/1998]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 152/1998

State of Rajasthan
                                                                      ----Appellant
                                     Versus
Naina Ram S/o Lachi Ram resident of Harijan Bhasti, Jalore.
                                                                    ----Respondent


 For Appellant(s)             :    Mr. Ramesh Dewasi, PP
 For Respondent(s)            :    Mr. Madhav Vyas, Amicus Curiae

     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH Judgment Reportable Reserved on: 16/04/2025 Pronounced on: 23/04/2025 Per Hon'ble Mr. Sandeep Shah, J :

1. The present appeal under Section 378 of Cr.P.C. has been

filed by the State of Rajasthan being aggrieved against the order

dated 17.11.1997 passed by Sh. Ramchandra Jatav, learned

Sessions Judge, Jalore in Sessions Case No.7/97, whereby

learned trial Court has acquitted the respondent- Naina Ram for

offences punishable under Section 302 of IPC.

Facts of the case:

2. The brief facts of the case are that on 23.11.1996 at around

08:40 AM, a telephonic information was received at Police

Station, Jalore from Medical Officer-in-charge of Government

Hospital, Jalore that one person has been found in an injured

condition. This information was recorded in the roznamcha at

serial number 997 (Ex.P./20-A) and Amar Singh, ASI was sent to

the Government Hospital. The injured was examined and the

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injury report (Ex.P/10) was prepared. Amar Singh, ASI (PW-2)

made an inquiry report with the Medical Officer as to whether the

injured is in fit position to give statement or not. The Medical

Officer informed that the injured was not in a position to give the

statement. Thereupon, Mr. Amar Singh recorded statement of

brother and wife of the injured, namely Narpatram (PW-9) and

Smt. Kamla respectively. Thereafter, Mr. Amar Singh, ASI

reached the place of occurance and inspecting the site and

prepared site map (Ex.P/5) and site inspection report (Ex.P/5A)

in presence of all the witnesses. Mr. Amar Singh, ASI collected

and seized sand (smeared with blood) and regular/normal sand.

Subsequently, the injured was referred to Jodhpur for further

treatment. In the meanwhile, the investigation was carried out

by Mr. Amar Singh, ASI and he submiited the investigation report

(Ex. P/15) before the Station House Officer, Police Station Jalore.

Based upon which, the FIR No.304/1996 was lodged at Police

Station, Jalore for the offences punishable under Section 323,

325 and 307 of IPC. On 27.10.1996 the report referred to the

statement of one Sh. Rustam, who informed the fact of the

deceased- Kishore being taken in a taxi driven by Saleem and

accompanied by accused-respondent- Naina Ram and one sh.

Deepa Ram Meghwal. In the meanwhile, on 27.10.1996 at

around 10:15 AM, the injured- Kishore passed away at Jodhpur

Hospital and, thereafter, the offence punishable under Section

302 of IPC was added. The information of death of deceased-

Kishore was given by Sh. Jasraj (PW-7) who was the brother of

the deceased.

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3. During the course of investigation, various witnesses were

examined and post framing of charge, the trial Court proceeded

with the trial and the prosecution examined 17 witnesses as also

got exhibited various documents to prove their case. The accused

respondent examined himself as DW-1 in defence. The accused

was also examined under Section 313 Cr.P.C. wherein he denied

the commission of offences and stated that he was falsely

implicated. The learned trial Court post considering the entire

record vide its judgment dated 17.11.1997 acquitted the

respondent- Naina Ram for offence punishable under Section 302

of IPC while specifically holding that it was a case of

circumstantial evidence and the entire chain was not complete

and there were various missing links in the story of the

prosecution.

Argument on behalf of the appellant- State:

4. Laying a challenge to the above mentioned judgment, the

learned Public Prosecutor has argued that though it is a case of

circumstantial evidence but the prosecution has been able to

show that the complete chain was found intact and there was no

missing links whatsoever. It has also been asserted that

PWs-3 & 5 are the witnesses who support the stand of the

accused respondent being last seen with the deceased- Kishore.

5. Furthermore, PW-15 Hariram is an important witness before

whom the accused-respondent has given an extra-judicial

confession of the entire incident and the testimony of all the

three witnesses has remained un-controverted and there were no

inconsistencies whatsoever in their testimony. It has further been

asserted that though PW-6 Rustum has turned hostile, however,

[2025:RJ-JD:19013-DB] (4 of 16) [CRLA-152/1998]

the story of the prosecution has been consistent and has been

proved by the testimony of other witnesses. It has further been

asserted that based upon the information given by the accused

the site where the murder took place was inspected which is

clear from the perusal of the statement of accused-respondent

divulging information with regard to the place i.e. Ex.P/9 and the

inspection carried upon the same i.e. Ex.P.17, both on

01.11.1996. It was thus submitted that the trial Court has

committed a gross error in acquitting the accused-respondent.

Argument on behalf of respondent-accused:

6. Per contra, Mr. Madhav Vyas, Amicus Curiae, while

supporting the judgment passed by the trial Court has argued

that the Court has rightly taken into consideration that:

(i) The witness PW-15- Hariram before whom it has alleged

that the accused-respondent has given an extra-judicial

confession, does not inspire any confidence and is not in any

relationship with the accused and thus there was no occasion for

him to make extra Judicial confession before him. Furthermore,

statement of PW-15 has not at all been taken by the police under

Section 161 of Cr.P.C., during the course of investigation. Thus

examining him at such a belated stage, that to for the first time

during the course of trial makes his testimony totally unreliable.

It has further been asserted that though PW-15 states that

immediately after the extra-judicial confession, he met with the

police officials and informed the fact of the same, however, he

has not named any police official nor any police official has

supported the stand of PW-15 with regard to information being

received about the extra-judicial confession. Furthermore, no

[2025:RJ-JD:19013-DB] (5 of 16) [CRLA-152/1998]

roznamcha in this regard has been produced to show the

presence of the police officers on way from the hotel where the

PW-15 Hariram was sitting and the way to the police station.

(ii) As far as last seen witnesses are concerned, the counsel for

the State states that as per the narration given by the

prosecution, the entire information was shown to have been

given by PW-6, however, he has not supported the stand of the

prosecution. It has further been asserted that the last seen

witnesses Deeparam (PW-3) and Salim (PW-5) do not specifically

state that the accused respondent was the only person with

whom the deceased was seen. Rather, their version is that the

deceased and the accused-respondent were close friends and

both were in an intoxicated state and they were taken in a taxi

by driver- Salim i.e. PW-5 himself. It has further been asserted

that the statement of PW-4 Bhoparam who was the elder brother

of deceased will reveal that first house of Naina Ram comes and

just after 15-20 houses, the house of deceased-Kishore is

situated. Thus, the statements of PW-5- Salim does not inspire

confidence, more particularity he himself states where he had

dropped deceased Kishore and accused-respondent, it was at the

house of Chhagan Gas Wala. However, Chhagan Gas Wala has

not been examined nor any witness has been examined to show

that the accused-respondent inflicted the injury. It has thus been

asserted by the counsel for the respondent that though last seen

witnesses do not inspire the confidence, assuming that they had

last seen accused then too since it is a case of circumstantial

evidence, the entire chain is not complete based upon the last

seen and the conviction could not have been based upon the last

[2025:RJ-JD:19013-DB] (6 of 16) [CRLA-152/1998]

seen evidence alone. Learned counsel further submits that the

last seen witness kept silent for four days post information being

received by Mr. Amar Singh, ASI on 23.10.1996, which also

raises a doubt with regard to the version tried to be made out by

the prosecution as there was no occasion for them to have kept

silent for all this time and wait for the death of deceased.

(iii) As regards the divulgence of the information by the

respondent, it is submitted that firstly both the witnesses in

presence of whom the information was given vide Ex.P.-17

have not been examined and only one witness has been

examined, whose testimony also does not inspire confidence. It

has further been asserted that a bare perusal of Ex.P-1 and the

statements of PW-2 Amar Singh will clearly reveal that the

police officials were well aware about the site and had

inspected the site and prepared the site inspection memo on

27.10.1996 itself whereas the alleged information given by the

respondent-appellant and post that the inspection based upon

same, both were done on 01.11.1996. Thus, site inspection

based upon the information given by the accused-respondent is

of no consequences whatsoever. It has further been asserted

that no sketch map of the site has been prepared by the

investigating officer which has been admitted by the

Investigating Officer- Gopal Ramawat (PW-16) himself which

itself throws a shadow of doubt and shatters the entire story of

the prosecution with regard to the preparation of the inspection

memo based upon the information by the accused-respondent.

(iv) It has further been argued that no recovery has been

made from the accused, and additionally, the weapon used in

[2025:RJ-JD:19013-DB] (7 of 16) [CRLA-152/1998]

the alleged offence has also not been recovered. It was further

submitted that it is not even the case of the prosecution that

any bloodstained clothes worn by the accused were recovered

and sent for FSL examination. Thus, there is no corroboration

whatsoever, and there is no link between the accused and the

deceased to establish the connection of causing the death of

the deceased.

(v) There is an absence of motive, as the prosecution has

failed to prove the mens rea for committing the crime in

question.

(vi) Lastly, it has been submitted that when there is doubt in

the story of prosecution, it would not be justifiable to reverse

the finding of the trial Court, as the learned trial court has not

misdirected or misconstrued the evidence on record and has

rather rightly appreciated the entire evidence on record. It has

thus been submitted that the impugned judgment is justified,

and the appeal filed deserves to be dismissed.

Analysis and reasoning:

7. Having considered the arguments raised by the learned

counsel for both parties and after perusal of the record, we

deal with six prongs for consideration in the present appeal:-

(i) Last seen- As far as the "last seen" testimony is

concerned, in the statements of PW-3 Deepa Ram and PW-5

Salim, it is stated that the accused-respondent, Naina Ram,

came in a taxi. After arriving near the wine shop, he saw the

deceased, Kishore, lying in a semi-conscious state near the

wine shop. Thereafter, Narpat Ram lifted Kishore and asked the

taxi driver, Saleem (to take them to their house). Deepa Ram

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also requested the taxi driver to drop him near Suraj Pole.

After reaching Suraj Pole, Deepa Ram got out of the taxi, and

the next day, Deepa Ram heard that Kishore Harijan had

become semi-conscious after being assaulted. It is clear that,

as far as the statement of Deepa Ram is concerned, he only

saw the accused with deceased sharing a taxi driven by Salim

and nothing beyond that. On the other hand, PW-5 Salim

states that Deeparam, while disembarking, mentioned that the

accused, Naina Ram, asked him to drop and Kishore at Kasum

ka Bera. He further states that he dropped them near the

house of Chaggan Gas Wala. Thus, as far as the statements of

PW-3 and PW-5 are concerned, there are no inconsistencies

whatsoever. However, there is no evidence directly connecting

the accused to the crime, except for circumstantial evidence of

last seen. The entire case hinges on the circumstantial

evidence, which is crucial in determining the involvement of the

accused.

(ii) Information Given by the Deceased under Section

27 of Indian Evidence Act Regarding the Site: There is

information provided by the deceased regarding the site where

the murder occurred, as well as the site inspection undertaken.

It is the case of the prosecution that the accused-respondent

was arrested on 31.10.1996, and thereafter, on 01.11.1996,

vide Exh.P-17, the accused divulged information regarding the

place where he allegedly murdered the deceased- Kishore.

Based on this information, the site was inspected on

01.11.1996, as recorded in Exh.P-9. The prosecution has

attempted to link the accused-respondent to the crime on the

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basis of his knowledge of the location where the offence was

committed. This Court observes that, firstly, as admitted by the

Investigating Officer, Gopal Ramawat, no site map was

prepared, which further weakens the prosecution's case.

Secondly, it is an admitted fact that the site was already known

to the police officials and had been inspected, and the site

inspection memo was prepared prior to the arrest of the

accused, on 27.10.1996 itself, as per Exh.P-1. The above-

mentioned fact is further clarified upon perusal of the memo

prepared on 27.10.1996, as well as the report lodged on the

same date, which PW-2 Amar Singh was not in a position to

deny during his examination-in-chief and cross-examination.

Therefore, the link attempted to be established by the

prosecution regarding the accused's knowledge of the site

where the inspection took place does not inspire confidence

and lacks evidentiary value.

(iii) Extra Judicial Confession- The prosecution relies

heavily upon the extra-judicial confession by the accused to

PW-15 Hariram, wherein Hariram has stated that he knows the

accused as the accused-respondent used to work at the toll tax

and that came before him and informed that he had assaulted

Kishore and left him near Kasum Bera, locking the place

afterwards. He further confessed that he had killed

Himmataram by hitting him with stones and had dumped the

body near the bypass road. Thereafter requested him to

suggest a good lawyer for his case. Hariram advised him to

wait at a hotel near the Ahor Chungi check post while he went

to bring a lawyer. However, instead of going to a lawyer,

[2025:RJ-JD:19013-DB] (10 of 16) [CRLA-152/1998]

Hariram went towards the police station. On the way, he met

some police officers and informed them about the confession

made by the accused.

8. As far as the statements made by the Hariram is

concerned, he does not inspire the confidence. Firstly there is

no proximity or relationship between the Hariram and the

accused-respondent, established which could justify the

accused making an extra-judicial confession before him. Even

otherwise leaving that apart, if proximity is accepted for the

sake of arguments then too the version of the Hariram does

not inspire the confidence as he stated that he immediately

proceeded towards the police station and, en route, meet

police officers to whom he disclosed the accused's confession.

However, Hariram has failed to mention the names of those

police officers. Moreover, his version has not been

corroborated by the Investigating Officer, Gopal Ramawat (PW-

17), nor has any police officer, before whom such information

was allegedly disclosed, been named or examined by the

prosecution. This omission significantly weakens the

evidentiary value of the alleged extra-judicial confession.

9. Furthermore, it is noteworthy that no statement of

Hariram was recorded by the police officials under Section 161

Cr.P.C. during the course of the investigation conducted by

investigating officer, which, in itself, renders Hariram's

testimony unreliable and raises questions as to why he was

brought into the picture for the first time, nine months after

the incident, and only when he was examined as PW-15 before

the learned trial court during the course of trial. The

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prosecution has merely placed on record the statement of

Hariram, which was recorded under Section 161 Cr.P.C. on

24.10.1996, in some other case and not in the present case.

However, no reasons have been provided as to why his

statement in the present case was not recorded earlier, nor has

any investigation been conducted in this regard from

25.10.1996 onwards. The failure to record his statement under

Section 161 Cr.P.C. raises serious doubts about the alleged

extra judicial confession. This omission severely weakens the

credibility of the prosecution's case and, as observed by the

learned trial court, does not inspire any confidence whatsoever.

(iv) No recovery and no motive- In the present case, no

recovery of the weapon used in the crime has been undertaken

by the prosecution to link the accused-respondent to the crime.

Additionally, no recovery of bloodstained clothes worn by the

accused has been made, nor have they been sent for

examination to the forensic laboratory. This is a crucial missing

link in the entire chain of circumstantial evidence. Furthermore,

no motive has been established to explain why the accused

would have murdered the deceased. The absence of mens rea

(the intention or knowledge of committing murder) remains

unproven, as the prosecution has failed to provide any

evidence in this regard. No witness has testified regarding any

motive or mens rea for the accused's act of killing the

deceased.

10. The motive in the case was discussed in Nandu Singh v.

State of Madhya Pradesh, reported in 2022 SCC OnLine SC

1454, where the Hon'ble Supreme Court held as under:

[2025:RJ-JD:19013-DB] (12 of 16) [CRLA-152/1998]

"12. In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.

13. In Anwar Ali vs. State of Himachal Pradesh 1, this Court made the 1 (2020) 10 SCC 166 legal position clear in following words:-24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu3, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under : (Babu case3, SCC pp. 200-01)

"25. In State of U.P. v. Kishanpal4, this Court examined the importance of motive in cases of circumstantial evidence and observed : (SCC pp. 87-

88, paras 38-39)

'38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or ex-cited them to commit the particular crime.

39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circum- stances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its impor- tance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is

[2025:RJ-JD:19013-DB] (13 of 16) [CRLA-152/1998]

clear and reliable, the absence or inadequacy of motive cannot stand in the way of con- viction.'

26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N.5 )"

11. Thus, it is a clear case where, in order to establish guilt,

the prosecution must create a sufficient link between the

accused and the offence. The absence of motive evidently

weighs in favour of the accused. In the present case,

admittedly, no motive has been attributed to the accused for

committing the offence, and this fact strongly supports the

case of the accused-respondent. It is further well settled that in

the absence of motive, even strong circumstantial evidence

cannot take the place of proof beyond reasonable doubt.

Unless and until the prosecution proves its case beyond

reasonable doubt, no conviction can be sustained solely on the

basis of suspicion or uncorroborated confession.

(v) Circumstantial Evidence- As far as the prosecution's

case is concerned, it is admittedly based on circumstantial

evidence. In such cases, to establish the guilt of the accused,

the chain of circumstances must be complete, with no missing

links whatsoever.

12. In this regard, the Hon'ble Supreme Court in the case of

Sharad Birdhichand Sarda v. State of Maharashtra,

reported in (1984) 4 SCC 116, held as under:

"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 conclusion of guilt is to be drawn should be fully established.

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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 grammatical 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 & Anr. v. State of Maharashtra 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 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."

13. The above-mentioned proposition has recently been

reiterated by the Hon'ble Supreme Court in the case of Jabir &

Ors. v. State of Uttarakhand, 2023 SCC OnLine SC 32 also.

14. Thus, it is clear that the entire set of circumstances must

lead to the only possible conclusion of the guilt of the accused,

and the facts must be consistent and conclusive in nature.

They must also exclude every possible hypothesis except the

one pointing to the guilt of the accused. Most importantly, the

chain of evidence must be complete so as to lead to a

conclusion that is consistent with the guilt of the accused and

must show that, in all human probability, the act must have

been committed by the accused.

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15. In view of the discussions made, the chain of

circumstances has not been sufficiently proved by the

prosecution in the present case. Thus, the trial court was

justified in granting the benefit of doubt and acquitting the

accused.

(vi) Consideration in Appeals Against Acquittal: The Hon'ble

Supreme Court, in the case of H.D. Sundara & Ors. v. State of

Karnataka, reported in (2023) 9 SCC 581, while considering the

principles to be kept in mind during the hearing of an appeal against

acquittal, summarized the legal position as under:

8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -

8.1 The acquittal of the accused further strengthens the presumption of innocence;

8.2 The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

8.3 The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;

8.4 If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5 The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

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16. Taking guidance from the above-mentioned judgment, it is clear that

the prosecution has failed to establish that the judgment of acquittal suffers

from any perversity or is based on a misreading of the material available on

record. Furthermore, this is not a case where no other reasonable view is

possible. In fact, in the present case, the view pointing towards the guilt of

the accused is weak and improbable, whereas the alternative view favouring

the accused is much stronger and more plausible.

17. Thus, upon considering the entire record, we find that there is no

infirmity in the judgment passed by the learned Trial Court dated

17.11.1997. Accordingly, the order of acquittal is upheld, and the appeal

stands dismissed.