Rajasthan High Court - Jodhpur
Shushu @ Sushil vs State on 18 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:34140]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 28/2018
Shushu @ Sushil S/o Karmveer, By Caste Jat, Resident Of
Deshkhera, P.s. Julana, District Jind Haryana Rajasthan.
Presently Lodged At Central Jail Bikaner
----Appellant
Versus
State Of Rajasthan
----Respondent
Connected With
S.B. Criminal Appeal No. 806/2017
1. Anil S/o Hari Singh, By Caste Sunar, Resident Of Adar P.s.
Matloda At Present Hari Nagar Colony, Kachhi Fatak, Model Town,
Panipat Haryana.
2. Ramesh S/o Om Prakash, By Caste Brahmin, Resident Of
Bamanbas At Present Julana District Jind Haryana.
3. Ramawtar S/o Ishwar Singh, By Caste Ahir Yadav, Resident Of
Dhana Kalla P.s. Sadar, Hansi District Hissar Haryana.
4. Ravi Kumar @ Raju S/o Hawa Singh, By Caste Brahmin,
Resident Of Rakhi Gadhi, P.s. Narnoud District Hissar At Present
House No. 1081/9 Karnar Nagar, Model Town Ambala City
Haryana. At Present Lodged In Sub Jail, Rajgarh.
----Appellants
Versus
The State Of Rajasthan.
----Respondent
For Appellant(s) : Mr. RS Gill
Mr. Vikas Bijarnia
Ms. Ranjana Mertia
For Respondent(s) : Mr. Shrawan Singh Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
Order pronounced on : 18.08.2025
Order Reserved on : 23.07.2025
1. These two appeals have been directed against the judgment
of conviction and order of sentence dated 25.05.2017 passed by
[2025:RJ-JD:34140] (2 of 5) [CRLAS-28/2018]
the learned Additional Sessions Judge, Rajgarh, District - Churu,
against the accused persons.
2. I have heard the learned counsel for the parties and gone
through the record of the case.
3. Briefly stated the facts of the case would be that on
24.01.2006 at about 04:15 A.M., the complainant Bhanwar Lal
(P.W.-4) submitted a report Ex.-P/12 alleging, inter alia, an
incident, in which, an assault was made by some accused persons
and the bus was hijacked, whereafter the offence of loot was
committed.
3.1 The investigation commenced, the accused were arrested,
identification of the property and accused was conducted and after
usual investigation, the appellant - Shushu @ Sushil was charge-
sheeted for committing offence under Sections 395 and 397 of IPC
and the appellants - Ramesh, Ravi, Anil and Ramawtar were
charge-sheeted for committing offences under Sections 395, 397
of IPC and 3/25 of the Arms Act. The Court took cognizance of the
offences and framed charges as mentioned above and then
commenced the trial. A total of 35 witnesses were produced by
the defence and reliance was placed upon 93 documents. The
accused were examined under Section 313 of Cr.P.C. and two
documents were tendered into evidence in defence.
4. The arguments raised by the learned counsel for the
appellants were that though the offence may have been
committed by someone but the prosecution miserably failed to
prove that the appellants were the person who committed the
robbery, has not been proved beyond reasonable doubt, for the
[2025:RJ-JD:34140] (3 of 5) [CRLAS-28/2018]
reason that neither they were named in the FIR nor during trial,
could they identify them as assailants.
5. To deal with the issue raised above, this Court has minutely
gone through the statements of the prosecution witnesses. It is
observed that except P.W.-2 (Kishore Kumar) and P.W.-3 (Gopal
Swami), the accused were not put to identification before any
person. Almost all prosecution witnesses have, in an unambiguous
and unequivocal term, stated that the faces of the accused were
veiled. If the faces of the accused were veiled, then how it would
be possible to identify or recognize their faces, is a question not
blatantly discussed by the learned trial Court.
5.1 The claim of the witnesses of identifying the appellants as
accused seems to be flimsy and unconvincing in view of their
contradictory statements about the veiled faces of the assailants;
the fact that the accused were not already known to the
witnesses; the fact that the incident took place in pitch dark and
the fact that the identification parade got conducted after two and
a half months of the incident, as well as the fact that soon after
apprehension, the accused were not kept veiled during
investigation till their identification, put serious dent on the case
of the prosecution.
5.2 The submission of keeping the memory alive for two and a
half months to recognize the faces of the accused, further casts a
serious doubt on the story of the prosecution. The absence of
evidence of keeping the accused in a state not to be seen by any
other person also weakens the charge.
5.3 The fact that alleged recoveries were made from different
places on different dates from residential places, but the
[2025:RJ-JD:34140] (4 of 5) [CRLAS-28/2018]
independent witnesses were not made to accompany or witness
the preparation of memos of recovery, is a further question on the
fairness of the investigation and its sanctity.
5.4 No evidence has been adduced to say that the place of
recovery was within the exclusive and conscious domain and
possession of the accused, either oral or documentary. The deficit
nature of identification of property and the manner, in which, it
was conducted, casting a serious doubt on the veracity of
statements of prosecution witnesses. None of the articles had any
specific mark of identification either of shape, colour, design,
weight or appearance and this fact alone is fatal to the case of the
prosecution because none of the witness had submitted any
record or proof to this effect. In absence of specific evidence
regarding ownership, it would not be safe to infer that the
recoveries made by the police were the belongings of the victims
of this case. The prosecution has utterly and miserably failed to
prove this aspect of the case.
6. When the accused are not known to the witnesses, when
their identification is not conducted, or the identification by two
witnesses creates serious doubt because of the unidentifiable
condition of the accused; the delay in identification; the possibility
of identifying the accused in pitch dark and keeping the memories
safe for two and a half months; and the fact of non production of
any material to establish that the recovered articles had
connection with them, are the circumstances certainly fatal to the
case of the prosecution and in light of the above, the judgment of
conviction cannot be sustained.
[2025:RJ-JD:34140] (5 of 5) [CRLAS-28/2018]
6.1 Since there is no other evidence to directly or indirectly
connect them with the alleged offence. The basis of their
conviction on the basis of unidentifying articles and tainted
identification of accused cannot be sustained.
7. In this view of the matter, the instant appeals are allowed
and the order dated 25.05.2017 passed by the learned Additional
Sessions Judge, Rajgarh, District - Churu is quashed and set
aside. The accused are acquitted of the charges. Their bail bonds
are discharged.
8. Record be sent back forthwith.
(FARJAND ALI),J
165-divya/-
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