Devaram vs State Of Rajasthan ...
2025 Latest Caselaw 16789 Raj

Rajasthan High Court - Jodhpur

Devaram vs State Of Rajasthan ... on 6 December, 2025

Bench: Vinit Kumar Mathur, Farjand Ali

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                                     JODHPUR

               D.B. Criminal Appeal (Db) No. 166/2023

Devaram S/o Kapuraram, Aged About 55 Years, R/o Dayalpura,
Police Station Ahore, Tehsil Ahore, District Jalore (Raj.)
                                                                          ----Appellant
                                       Versus
1.        State Of Rajasthan, Through Pp
2.        Bhuta Ram S/o Bhera Ram, R/o Kanwla, Police Station
          Bhadrajun, Dist. Jalore.
                                                                     ----Respondents



For Appellant(s)             :     Mr. P.S. Champawat
For Respondent(s)            :     Mr. Veer Bajrang Singh for
                                   Mr. JVS Deora
                                   Mr. C.S. Ojha, P.P.


          HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

HON'BLE MR. JUSTICE FARJAND ALI Judgment

06/12/2025

1. The instant criminal appeal, instituted under Section 378 of

the Code of Criminal Procedure (hereinafter referred to as "the

CrPC"), has been preferred by the appellant assailing the

judgment dated 12.10.2022 passed by the learned Additional

Sessions Judge, Jalore in Sessions Case No. 40/2021. By the

impugned judgment, the learned trial Court acquitted the

respondent-accused of the charges levelled against him for the

offences punishable under Sections 302 and 201 of the Indian

Penal Code (hereinafter referred to as "the IPC").

2. Briefly stated, the facts essential for adjudication of the

present appeal are that, on 06.04.2021, the complainant,

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Devaram, submitted a written report (Ex. P-1) before the

Superintendent of Police, Jalore, alleging that his sister, Anasi

Devi, was married to the respondent-accused, Bhutaram, nearly

four decades ago. He stated that the matrimonial relationship had

been discordant and that the accused had, on an earlier occasion,

assaulted Anasi, causing a fracture in her arm. According to the

complainant, on the night of 01.04.2021, Anasi Devi and the

accused were present in their house situated at a short distance

from the complainant's residence.

2.1 It is alleged that during the night, the accused brutally

assaulted Anasi with sticks and sharp-edged weapons, inflicting

grievous injuries on her knees, joints, limbs, and vital parts of the

body. Her arm, previously fractured, was stated to have been left

dangling as a consequence of the beating. On hearing her cries,

neighbour Dargaram is said to have reached the spot, by which

time Anasi had already succumbed to the assault.

2.2 The complainant further alleged that the accused, in

connivance with others, removed the dead body to their residence

in Kampala and informed the complainant's family that Anasi was

unwell. When the complainant's younger brother reached there,

he found that the body was already being taken for cremation.

According to the complainant, the deceased's in-laws proceeded to

cremate the body in haste with the intention of obliterating all

traces of the offence. On the basis of the said report, Police

Station Bhadrajun registered FIR No. 53/2021 for offences under

Sections 302 and 201 IPC. Upon completion of investigation, a

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charge-sheet was filed against the accused for the aforesaid

offences.

3. Learned counsel for the appellant submitted that the

impugned acquittal is founded on conjectures and mechanical

rejection of material evidence, suffers from patent perversity. The

learned trial Court erred in discarding the prosecution case merely

because the eyewitnesses resiled, ignoring that their statements

under Sections 161 and 164 CrPC, being public documents

admissible under Section 80 of the Evidence Act, carried intrinsic

reliability. The circumstantial evidence, including recoveries from

the true place of occurrence, the Mauka Naksha, prior conduct of

the accused, and the false defence of an alleged fall from a

staircase that did not exist, remained wholly unshaken. The Court

below overlooked the mandate of Section 7 of the Evidence Act

and failed to appreciate the chain of circumstances pointing

unmistakably to homicidal death. The judgment thus reflects

misdirection in law and misreading of evidence, warranting its

reversal and conviction of the respondent under Sections 302 and

201 IPC.

4. Heard learned counsel appearing on behalf of the parties and

perused the material available on record.

5. Upon a thorough perusal of the record, it becomes manifest

that the appellant is admittedly not a witness of the occurrence;

his assertions rest merely on perception and doubt that the

accused might have caused the death of his sister. Suspicion,

howsoever grave, perception, howsoever strong, and conclusions

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founded upon mere surmises and conjectures can never take the

place of cogent, credible and admissible evidence.

5.1 The statements under Sections 161 and 164 CrPC, though

carrying different degrees of sanctity, one recorded by the police

and the other before a Magistrate, remain, in essence, pre-charge

investigative material. Such material may justify framing of

charge, but unless converted into substantive evidence at trial, it

cannot form the foundation of conviction.

5.2 If the statements made before the police, whether accepted

or not by the witness during trial, were to be treated as having

conclusive value, then the very purpose of holding a trial would

stand defeated. The charge-sheet itself is based on what the

police recorded during investigation. Had that alone been

sufficient to secure conviction, there would have been no necessity

to summon witnesses for their deposition under oath during the

course of trial. The legal position is well-settled that statements

made before the police and the statement recorded under Section

164 of CrPC have no evidentiary value unless duly affirmed or

reiterated before the Court during trial. The statements recorded

during investigation can be taken in the course of trial for

contradiction, sometimes omission, improvement or material

improvement, and sometimes for a limited purpose of

contradiction, but by no stretch of imagination can such

statements be taken as a piece of evidence, sufficient enough to

pass a judgment of conviction. In fact, the things above are the

material collected during investigation and bears its main

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importance up to reaching conclusion of investigation, taking

cognizance and upto the stage of framing of charges. After

commencement of trial, the above material is required to be

converted into legally admissible evidence, which can be used for

adjudication of guilt. We must underscore that the sanctity of trial

lies in the testimony rendered on oath before the Court. What the

witness might have told the police or a judicial Magistrate during

investigation, if not affirmed in Court cannot be treated as

substantive piece of evidence.

5.3 This Court is of the view that the material collected during

investigation does not ipso facto partake the character of

evidence. It is only at the stage of trial that such material is

required to be converted into legally admissible evidence. If it is

not asserted rather unconverted, it cannot be read in evidence.

The substantive piece of evidence is what the witness deposes

before the Court during trial, and not the statements recorded at

any anterior stage, whether under Sections 161 or 164 of the

CrPC. The law requires that a witness, during trial, must depose,

insinuate, or make accusations in the courtroom under oath in the

presence of the accused. No conviction can be sustained merely

on the basis of a police statement recorded under Section 161 and

164 CrPC, particularly when the witness, while deposing on oath

before the trial court, denies having made such a statement.

5.4 The doctrine stands elucidated with greater clarity when read

in conjunction with the relevant provisions of the Indian Evidence

Act and CrPC. Section 137 of the Indian Evidence Act delineates

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the threefold stages of a witness's examination, examination-in-

chief, cross-examination, and re-examination. Examination-in-

chief is the primary narration of facts by a witness; cross-

examination is the adversarial test through which the opposing

party probes the veracity, consistency and credibility of such

testimony; and re-examination is confined to clarifying matters

that may have arisen in cross-examination. Section 273 of the

CrPC mandates that all evidence shall be recorded in the presence

of the accused, ensuring that any insinuation or imputation made

against him surfaces before his own eyes. This statutory

requirement embodies the foundational principle of natural justice,

that no person shall be condemned unheard. It equally affords the

accused the invaluable right to have such assertions tested

through cross-examination and to thereafter lead evidence in his

defence, should he so choose. Section 231 of the CrPC further

reinforces this procedural safeguard by prescribing that the

prosecution evidence must be taken in the presence of the

accused, and after such evidence is adduced, the accused is

granted the opportunity to cross-examine prosecution witnesses,

followed by the stage where he may enter upon his defence.

5.5 In the conspectus of these provisions, whenever a witness

deposes anything adverse to the accused, the Court is duty-bound

to adhere to the structured process envisaged under Section 137

of the Evidence Act. The witness must first be examined-in-chief;

the accused must then be afforded the right to cross-examine;

and the prosecution may, if necessary, seek re-examination. This

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statutory requirement is not a mere technicality, it is the very

architecture through which truth is distilled in a criminal trial.

5.6 It is settled that statements under Section 161 CrPC are not

to be signed by the witness and if signed, the statement becomes

inadmissible in evidence under Section 162 CrPC. Such statements

are only relevant for the purpose of contradiction or corroboration

under Sections 145 and 155 of the Indian Evidence Act and do not

constitute substantive evidence.

6. Now, moving on to the contention of the counsel for the

appeallant that the deceased was subjected to beating, it is

nothing but a bald, uncorroborated assertion, which cannot

assume the character of legal proof in the absence of supporting

evidence. The most neutral and reliable piece of evidence is the

post-mortem report. A meticulous examination of the PMR reveals

only two injuries, swelling with deformity on the right forearm,

and an abrasion between the index and middle finger of the left

hand. These injuries, in the ordinary course of human conduct and

in the general understanding of this Court, may very well arise

from a fall from a staircase. This fact, that the deceased fell from

the staircase has been affirmed by PW-20 Jetharam, the son of

the deceased, and no one could be a better person to corroborate

to this fact than her own son. There is no reason to disbelieve

him, particularly when the deceased had been married for four

decades. Had the marriage been recent, considerations regarding

cruelty might have arisen, but four decades of matrimony

substantially dilute such presumptions.

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6.1 Coming to the offence under Section 302 IPC, the

prosecution must establish intention to kill or the infliction of

bodily injury sufficient in the ordinary course of nature to cause

death. Ordinarily, such intention is reflected through use of a

weapon or injuries on vital parts of the body and such features are

conspicuously absent in the present case. The appellant has not

been able to point out any material on the basis of which a

judgment of acquittal can be overturned into conviction.

7. It is nigh well settled that there is a presumption of

innocence in favour of an accused and the same gets further

fortification after his acquittal by a reasoned judgment of a Court

of competent jurisdiction. The Court of appeal should be slow and

should show reluctance in making interference in a well reasoned

judgment of acquittal. It should be kept in mind that until and

unless it is observed that the judgment of acquittal is a product of

total non-consideration of the material brought on record or it is

against any provision of law or is concluded upon misappreciation

of evidence; the appellate Court should not interfere in the finding

reached by the trial Court. If after re-appreciation of evidence, a

stage comes where two views seem possible still the Court should

tend to accept the view favourable to the accused. Recently

Hon'ble the Supreme Court in its pronouncement in the matter of

Mallappa & Ors.Versus State of Karnataka (Criminal Appeal

NO. 1162/2011 decided on 12.02.2024) had an occasion to

expound common principles in respect of the issue involved in like

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cases while entertaining an appeal against acquittal; the relevant

Para No.36 is reproduced as under :-

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

8. In view of the above and upon scrutiny of the record of the

case, we see no reason to disturb the finding of acquittal arrived

at by the learned trial Judge after anxious consideration of the

material on record.

9. Accordingly, there is no force in the Criminal Appeal, the

same deserves to be and is hereby dismissed. The judgment of

acquittal dated 12.10.2022 passed by the learned Additional

Sessions Judge, Jalore in Sessions Case No. 40/2021 is affirmed.

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10. The accused need not to surrender or appear before this

Court if any process has been issued then the same be withdrawn

immediately.

11. Record of the case be sent back forthwith.

                                   (FARJAND ALI),J                                  (VINIT KUMAR MATHUR),J
                                    10-Mamta/-




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