Rajasthan High Court - Jodhpur

Pinku Kumar vs State on 7 August, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 711/2013

Pinku Kumar s/o Shri Rajudeen, resident of Bhagalpur (Bihar).


                                                                       ----Appellant
                                       Versus
State of Rajasthan
                                                                     ----Respondent


For Appellant(s)             :     Mr. Shubham Ojha (Amicus Curiae)
For Respondent(s)            :     Mr. C.S. Ojha, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SUNIL BENIWAL

Judgment

Reserved on 12/07/2025 Pronounced on 07/08/2025

Per Dr. Pushpendra Singh Bhati, J:

1. In the instant appeal, preferred by the accused-appellant

(lodged in Central Jail, Sriganganagar), a challenge is laid to the

judgment of conviction and order of sentence dated 18.07.2013

passed in Sessions Case No.10/2013 (State of Rajasthan Vs.

Pinkukumar) by the learned Additional Sessions Judge No.2,

Sriganganagar ('Trial Court'), whereby while acquitting the

accused-appellant of the charge against him under Section 201

IPC (by extending the benefit of doubt), he was convicted under

Section 302 IPC and sentenced to undergo Life Imprisonment

alongwith fine of Rs.5,000/-, in default of payment of which, the

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accused-appellant was ordered to undergo further one year's

rigorous imprisonment.

2. Brief facts of the case, as noticed by this Court, are that on

14.06.2012 one Jeevraj Singh, F.C., submitted an inspection

report before the Police Station, Jawahar Nagar, Sriganganagar, to

the effect that on 14.06.2012 at around 5:50 a.m., a telephonic

information was received by the SHO of the concerned police

station from the City Control Room, Sriganganagar, that a dead

body is lying opposite Shani Temple, near a wall of Homeopathic

Clinic & Research Centre. Upon the same, Arvind Kumar, the then

Sub Inspector, SHO Police Station Jawahar Nagar alongwith

Jeevrajsingh, F.C. and other members of the police team, moved

towards Shani Temple and after reaching the spot so identified,

found the dead body of an unknown person (identified thereafter,

as Kishanlal i.e. deceased).

3. On the basis of the aforesaid information, an FIR bearing No.

312/2012 was registered at Police Station, Jawarnagar,

Shriganganagar for the offence under Sections 302 & 201 IPC;

after completion of the investigation, a charge-sheet under

Sections 302 & 201 IPC, was submitted against accused-appellant

before the concerned Court. After framing of the charges, the

same were read over to the accused-appellant, who denied the

same and claimed trial, and the trial commenced accordingly.

3.1. Owing to the nature of offences charged, the matter was

committed to the Court of Sessions, wherefrom the case was

transferred to the learned Trial Court for the necessary trial.

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3.2. During the course of trial, the statements of 11 witnesses

(P.W. 1 to P.W. 11) were recorded, documents (Ex.P.1 to 32), and

Article 1 to 10 were exhibited on behalf of the prosecution;

whereafter, the accused-appellant was examined under Section

313 Cr.P.C., in which he pleaded innocence and false implication in

the criminal case in question.

3.3. After conclusion of the trial, the learned Trial Court,

convicted and sentenced the accused-appellant, as above, vide

the impugned judgment of conviction and order of sentence dated

18.07.2013; against which, the present appeal has been preferred

by the accused-appellant.

4. Mr. Shubham Ojha, learned Amicus Curiae, appearing for the

accused-appellant submitted that the learned Trial Court has not

appreciated the evidence on record in the right perspective, and

there are material omissions in the testimony of the prosecution

witnesses, hence, it was urged that the prosecution has failed to

establish the guilt of the accused-appellant beyond all reasonable

doubts, and therefore, the impugned judgment of conviction and

order of sentence deserve to be quashed and set aside.

4.1. It was further submitted that the FIR was initially registered

against an unknown person, and significantly, there is no

eyewitness to the alleged incident. It was emphasized that the

prosecution has failed to produce any credible witness who had

seen the accused-appellant in the company of the deceased

proximate to the time of death. The absence of such direct or

circumstantial evidence, it was argued, gravely undermines the

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prosecution case and renders the conviction unsustainable in the

eyes of law.

4.2. It was also submitted that P.W.6 Trilokchand, the brother of

the deceased, came to know about the incident only through a

local newspaper, and he had no direct knowledge regarding the

circumstances under which the same was occurred. It was further

pointed out that the information provided by the said witness

merely pertains to the police proceedings undertaken after the

incident, and he does not know who killed his brother. Thus, the

testimony of P.W.6 does not advance the prosecution case in any

material manner.

4.3. Learned Counsel further submitted that P.W.11 Arvind

Kumar, the C.I. of the concerned police station at the relevant

time stated in his deposition that he received information about a

dead body lying near Shani Mandir, whereupon he proceeded to

the spot along with team, including a photographer, and

conducted an inspection, pursuant to which Ex.P.1 (the inspection

report) was prepared. The said report was then sent through

Constable Jeevraj Singh, and the FIR was registered on its basis.

However, it was contended that nowhere in the entire statement of

P.W.11 has it been mentioned that the death of the deceased was

caused by the accused-appellant. Therefore, the initial

investigation was against an unknown person, and there exists no

substantive material in P.W.1's testimony to directly link the

accused-appellant with the homicidal death of the deceased.

4.4. Learned Amicus Curiae also contended that the prosecution

has failed to establish a complete and credible chain of custody of

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the seized articles, thereby casting serious doubt on the reliability

of the forensic evidence. In this regard, attention was drawn to

the testimony of P.W.3 Rakesh Kumar, who deposed that he

received the sealed articles on 07.08.2012 for the purpose of

deposition at the Forensic Science Laboratory (FSL). However, he

admitted that the said articles were deposited at the FSL only on

09.08.2012, and offered no explanation for the delay or the

manner in which the articles were preserved during the

intervening two-day period. It was submitted that this unexplained

custody gap raises a serious question on the tamper-proof

handling of the evidence, thereby vitiating the sanctity of the

forensic process.

4.5. Learned counsel further submitted that the seizure of articles

from the place of incident was not carried out in the presence of

any independent witness, which is a serious procedural lapse. It

was pointed out that the place of occurrence was in a populated

area, situated near Shani Mandir, where people were frequently

passing by at the relevant time. Despite this, the investigating

agency did not deem it necessary to associate any independent or

neutral witness during the seizure proceedings. It was argued that

such omission raises a serious doubt about the credibility and

authenticity of the seizure process, particularly in a case where

the prosecution relies heavily on circumstantial evidence.

4.6. Learned Amicus Curiae also submitted that the prosecution

has failed to establish any motive on the part of the accused-

appellant to commit the alleged crime. In a case based purely on

circumstantial evidence, it was argued that the absence of motive

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assumes critical significance, especially when the prosecution has

not produced any direct evidence linking the accused to the

commission of the crime. The failure to prove motive further

weakens the prosecution case and adds to the overall doubt

regarding the guilt of the accused-appellant.

4.7. Learned Amicus Curiae further contended that the present

case rests entirely on circumstantial evidence, and the prosecution

has failed to satisfy the well-settled principles governing such

cases, as laid down by the Hon'ble Supreme Court in Sharad

Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC

116. In the said judgment, the Hon'ble Court enunciated five

golden principles--commonly referred to as the "Panchsheel" of

circumstantial evidence--which must be cumulatively satisfied in

order to sustain a conviction based solely on circumstantial

evidence.

5. On the other hand, Mr. C.S. Ojha, learned Public Prosecutor,

opposed the submissions advanced on behalf of the accused-

appellant and submitted that although the FIR was initially lodged

against an unknown person; during the course of investigation,

sufficient material emerged connecting the accused-appellant with

the crime in question. The circumstantial links, when read

together, form a complete and unbroken chain, pointing towards

the guilt of the appellant and ruling out the possibility of any

hypothesis other than that of the accused-appellant having

committed the murder.

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5.1 Learned Public Prosecutor also referred to the testimony of

P.W.1 Jagdish Singh, the then SHO, who deposed that the FIR was

registered on 14.06.2012, the same day the incident came to

light, and that the accused-appellant was arrested on 15.06.2012,

as reflected in Ex.P.3, which bears his signature. He further stated

that upon being arrested, blood-stained pant and shirt of

appellant-Pinku Kumar, along with a white card, were seized from

him during arrest. P.W.1 also noted that the accused appeared to

be in a disturbed physical and mental condition at the time of

arrest. It was argued that this arrest and the seizure of blood-

stained clothes shortly after the incident corroborates the

prosecution case, and serves as a significant incriminating

circumstance linking the accused-appellant with the offence.

5.2. Learned Public Prosecutor further relied upon the testimony

of P.W.5 Darshan Singh, who stated that on the day of the

incident, blood-stained soil, a blood-stained brick, and a blood-

stained cardboard box were recovered from the place of

occurrence, and were duly seized under seizure memos Ex.P.14 to

Ex.P.17. He also corroborated that on 15.06.2012,

accused/appellant-Pinku Kumar was arrested, and at the time of

arrest, his blood-stained pant and shirt, as well as a white plastic

card, were seized from his possession. It was contended that this

sequence of events such as immediate recovery of blood-stained

items from the scene and subsequent seizure of similarly stained

clothing from the accused, fortifies the chain of circumstantial

evidence, placing the accused at the scene of crime and directly

implicating him in the murder.

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5.3. Learned Public Prosecutor also referred to the testimony of

P.W.6 Trilokchand, the brother of the deceased, who stated that he

is a Priest by profession, and on 14.06.2012, he came to know

about the incident involving his brother through a local newspaper.

He further stated that he had heard from people that the accused-

appellant, Pinku Kumar, had assaulted the deceased with bricks.

While conceding that the witness did not see the incident

firsthand, the prosecution submitted that his testimony

corroborates the overall narrative and supports the recovery of

blood-stained bricks from the scene, thereby lending credence to

the prosecution version of the manner in which the offence was

committed.

5.4. Learned Public Prosecutor also relied upon the medical

evidence and referred to the testimony of P.W.10 Dr. S.M. Batra,

who conducted the post-mortem examination of the deceased. In

his examination-in-chief, Dr. Batra deposed that the deceased had

sustained a 4×2 cm fracture on the forehead, and a 6×2 cm deep

injury on the right side of the head involving a skull fracture. The

said witness further opined that all the injuries were ante-mortem

in nature, and in his expert opinion, the said injuries were the

cause of death and were sufficient in the ordinary course of nature

to cause death. It was submitted that the medical findings are

fully consistent with the nature of the blood-stained bricks

recovered from the scene, thereby corroborating the prosecution

case regarding the manner and means of assault.

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5.5. The learned Public Prosecutor also placed reliance on the

testimony of P.W.11 Arvind Kumar, the then C.I., who corroborated

the appearance and condition of the accused-appellant at the time

of arrest, as well as the recoveries made from him. He confirmed

that blood-stained clothes and a white card were seized during the

arrest. This testimony, according to the learned Public Prosecutor,

corroborates the evidence of P.W.1 Jagdish Singh and P.W.5

Darshan Singh, and reinforces the chain of circumstantial evidence

linking the accused-appellant with the commission of the offence.

5.6. Learned Public Prosecutor has drawn the attention of this

Court to the FSL report, which reveals that the blood samples

collected from the place of incident, including blood-stained soil

(Article 3), blood swab and brick (Article 5), and cardboard box

(Article 6), as well as the blood-stained T-shirt of the deceased

(Article 7) and the pant and shirt recovered from the accused-

appellant at the time of arrest (Articles 8 and 9), were all found to

contain human blood of Group "A".

5.7. Learned Public Prosecutor also submitted that motive, though

relevant, is not a sine qua non for conviction if the chain of

circumstances is otherwise complete and conclusive. In the

present case, even if the motive is not firmly established, the

other circumstances conclusively establish the complicity of the

accused-appellant.

5.8. He relied on the principle that technical lapses or procedural

irregularities do not ipso facto vitiate the trial, particularly when

the overall appreciation of evidence satisfies the test of guilt

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beyond reasonable doubt. It was urged that the judgment of

conviction passed by the Trial Court is well-reasoned, based on

evidence, and does not call for any interference.

6. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgment cited at the Bar.

7. This Court observes that the entire case of the prosecution

rests on circumstantial evidence, as there is no eyewitness to the

occurrence. In such a scenario, the law is well settled that the

prosecution must satisfy the five cardinal principles, commonly

known as the "Panchsheel" laid down by the Hon'ble Supreme

Court in Sharad Birdhichand Sarda (supra). The relevant

paragraphs of the said judgment are reproduced as hereunder:

"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.

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 v. State of Maharashtra¹ where the follow-ing observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] 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

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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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

8. The Hon'ble Supreme Court, referring to the above judgment

in the case of Shailendra Rajdev Pasvan and Others Vs. State

of Gujarat and Others (2020) 14 SCC 750, held as under :

"13. Thus the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements :-

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

17. It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself

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cannot take place of proof and will not be sufficient to convict the accused."

9. This Court further observes that the FIR in this case was

initially lodged against an unknown person, and the identity of the

accused-appellant as the alleged perpetrator came into the picture

only subsequently. There was no witness who saw the deceased in

the company of the accused proximate to the time of the incident,

nor was there any direct evidence establishing the accused's

presence at the scene of crime at or around the relevant time.

10. This Court also observes that the arrest of the accused-

appellant on 15.06.2012, one day after the discovery of the

deceased's body, and the alleged recovery of blood-stained clothes

and a white plastic card from his person, are circumstances relied

upon heavily by the prosecution. However, such recovery, while

relevant, is not independently corroborated by any neutral or

independent witness, despite the fact that the arrest and seizures

took place in a public area.

11. This Court further observes that P.W.1 Jagdish Singh and

P.W.5 Darshan Singh, both police officials, have deposed regarding

the recovery of blood-stained soil, brick, cardboard box, and the

accused's clothes. However, in the absence of any independent

public witness to such seizure, despite it being a public place and

given that these officers were also part of the investigation team,

their testimony must be viewed with due caution, especially in a

case hinging solely on circumstantial evidence.

12. This Court also observes that the forensic report indicates

that the blood found on the articles recovered from the scene

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(Articles 3 to 6) and from the accused's clothing (Articles 8 and 9)

was of Group A (human origin). However, the prosecution has not

proved the blood group of either the deceased or the accused,

which seriously undermines the evidentiary value of this forensic

match.

13. This Court further observes that P.W.3 Rakesh Kumar,

responsible for depositing the sealed articles with the Forensic

Science Laboratory, admitted that there was a two-day

unexplained delay between receiving the sealed samples and

depositing them at the FSL. No explanation has been furnished

regarding how the samples were stored, secured, or preserved

during this period, thereby casting a shadow over the integrity of

the chain of custody.

14. This Court also observes that P.W.6 Trilokchand, the brother

of the deceased, admitted that he had no direct knowledge of the

incident and learned about it only through a local newspaper. His

statement that he "heard" the appellant had attacked the

deceased with bricks is purely hearsay and cannot be treated as

substantive piece of evidence.

15. This Court further observes that P.W.10 Dr. S.M. Batra, who

conducted the post-mortem, opined that the injuries--blunt force

trauma to the head resulting in fractures--were ante-mortem and

sufficient to cause death in the ordinary course of nature. The

medical evidence may be consistent with the use of a brick as a

weapon, but does not identify the assailant, nor does it

conclusively link the injuries to any specific article recovered.

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16. This Court also observes that P.W.11 Arvind Kumar, the

Investigating Officer, corroborated the arrest and appearance of

the accused at the time of arrest. However, he does not offer any

substantive material to show that the accused was seen with the

deceased prior to the incident, or that there existed any prior

enmity, motive, or connection between the two.

17. This Court further observes that the prosecution has failed to

prove any motive on the part of the accused-appellant. Although

motive is not a sine qua non in every case, based solely on

circumstantial evidence, its absence becomes a material

consideration, especially when other links in the chain are weak or

inconclusive.

18. This Court also observes that the prosecution has not fulfilled

the five cardinal principles (Panchsheel) laid down by the Hon'ble

Supreme Court in Sharad Birdhichand Sarda (supra),

particularly with regard to excluding every possible hypothesis

other than the guilt of the accused and establishing a chain of

circumstances so complete as to rule out innocence.

19. This Court further observes that the circumstances proved

are not wholly consistent with the hypothesis of guilt and do not

exclude every reasonable hypothesis of the innocence of the

accused. Mere recovery of blood-stained clothes and

uncorroborated forensic findings do not discharge the

prosecution's burden to prove the guilt of the accused-appellant

beyond all reasonable doubts.

20. This Court also observes that when a judgment of conviction

is challenged before the Appellate Court, it becomes imperative to

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undertake a proper and independent appreciation of the evidence

recorded by the learned Trial Court. The power of the Appellate

Court in this regard is statutorily enshrined under Section 386(b)

of the Code of Criminal Procedure, 1973, which provides as

follows:

"386. Powers of the Appellate Court.--

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."

21. This Court also observes that as provided under Section

386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the

findings of the conviction, so as to acquit the accused. At this

juncture, it is considered appropriate to reproduce the relevant

portion of the judgment rendered by the Hon'ble Apex Court in

case of Kamlesh Prabhudas Tanna v. State of Gujarat,

(2013) 15 SCC 263, as hereunder:-

"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P [(2000) 1 SCC 621:

2000 SCC (Cri) 285], wherein a two-Judge Bench, while

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dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2)

"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

(emphasis supplied)

10. In Rama v. State of Rajasthan[(2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4)

"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720: 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court.

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7)

"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the

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personal liberty of an accused is curtailed because of the conviction.

The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

22. This Court thus observes that looking into the overall factual

matrix and the circumstances of the case as well as the evidence

and the precedent law, as placed on record as also the fact that

the appellant has already undergone actual custody period of

about 13 years 02 months and total sentence including remission

is about 16 years 02 months 20 days, it is a fit case to exercise

the power conferred under Section 386(b), which pertains to the

reversal of a finding from conviction to acquittal.

23. Consequently, the present appeal is allowed and the

impugned judgment of conviction and order of sentence dated

18.07.2013 passed in Sessions Case No.10/2013 (State of

Rajasthan Vs. Pinkukumar) by the learned Additional Sessions