Rajasthan High Court - Jodhpur

State vs Hiriya @ Hira And Anr ... on 14 February, 2025

[2025:RJ-JD:9194-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 385/2002

State of Rajasthan
                                                                     ----Appellant
                                      Versus
1. Hiriya alias Hira son of Rupa alias Rupji Meena, resident of
Bikrun Kalasiya, P.S. Dhariyawad (Udaipur)


2. Holiya son of Bhima Meena, resident of Budley Magra Kala,
P.S. Jhallara, District Udaipur (Rajasthan)
                                                                   ----Respondent


For Appellant(s)            :     Mr. N.K. Gurjar, AAG
For Respondent(s)           :     Mr. K.C. Sharma for Mr. Mridul Jain
                                  Mr. Priyank Kewaliya


        HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA Judgment

14/02/2025 Per, Chandra Shekhar Sharma, J:

This criminal appeal under Section 378 of the Code of Criminal

Procedure has been preferred by the State against the judgment dated

3rd December, 2001 passed by learned Sessions Judge, Udaipur

(hereinafter referred to as "the trial Court") in Sessions Case No.398 of

2000, whereby the accused-respondents Hiriya alias Hira son of Rupa

alias Rupji Meena and Holiya son of Bhima Meena were acquitted of the

criminal charges framed against them under Sections 302 IPC or 302

read with Section 34 of the IPC.

2. During the pendency of the instant appeal, respondent No.2

Holiya son of Bhima Meena has expired on 4 th January, 2012. In

support thereof, the learned Additional Advocate General has produced

a copy of his Death Certificate. As such, the appeal qua respondent

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No.2 - Holiya son of Bhima Meena stands abated. The Registry is

directed to place on record the death certificate of respondent No.2

Holiya son of Bhima Meena.

3. As per the prosecution story, complainant P.W.1, Keshiya,

submitted an oral report (Exhibit P-1) with the police on September 6,

2000, at around 12:30 PM at the place of incident itself stating inter-alia

that his son, Thawra, who resided separately, had gone out in the

previous evening but had not returned. The next morning, upon hearing

rumors of a dead body found near Undiveli Valley, he reached at the

location and identified the deceased as his son, Thawra, who had

sustained head injuries caused by stones. On this report, the police

registered FIR No.140/2000 (Exhibit P-20) for the offences under

Section 302 IPC or 302 read with Section 34 IPC at P.S. Parsola, District

Udaipur and investigation was commenced. During investigation, the

accused-respondents were apprehended. After following the due

procedure, a charge sheet was filed in the court of Additional Chief

Judicial Magistrate, Dhariyavad and thereafter the case was committed

to the court of Sessions Judge, Udaipur for trial. A criminal case vide

Case No.398 of 2000 was registered under Section 302 IPC or 302 read

with Section 34 IPC. As noticed above, the accused

persons/respondents faced the trial for committing murder of Thawra.

4. During the trial, the prosecution examined 12 witnesses and laid

in evidence 23 material objects and documents. The trial court, after

appreciating and evaluating the evidence and hearing both the parties,

acquitted the accused of the alleged charges. Aggrieved by the

judgment, the State has preferred this appeal.

5. The Learned Additional Advocate General appearing for the State

argued that the trial court had erred in acquitting the accused-

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respondents. He submitted that as per the statements of PW-4 Khaniya

and PW-5 Kaliya, the accused persons/respondents were last seen with

the deceased, Thawra. Further, on the basis of the information provided

by accused-respondent Holiya, a dhoti containing human blood

belonging to him was recovered from his house. Additionally, a blood-

stained stone was recovered, which was seized vide seizure memo

Exhibit P/5. He thus submitted that these evidence are sufficient to

establish the guilt of the accused/respondents and therefore, prayed

that the appeal may be allowed.

6. Per contra, learned counsel for the accused/respondent supported

the impugned judgment and submitted that the trial court had rightly

acquitted the accused/respondents, as the prosecution has failed to

establish their guilt beyond a reasonable doubt. He argued that the "last

seen" theory, based on the statements of PW-4 Khaniya and PW-5

Kaliya, was unreliable and insufficient to prove the involvement of the

accused persons in the crime, especially in the absence of any direct

evidence. PW-5 Kaliya did not fully support the prosecution's case and

was declared hostile. Moreover, the forensic report is inconclusive, and

mere recovery of a dhoti allegedly containing human blood was

insufficient to link the accused persons to the crime. Similarly, the

recovery of blood-stained stones did not conclusively establish its use in

the alleged offense. In these circumstances, learned counsel submitted

that the trial court had rightly acquitted the accused/respondents of the

charges levelled against them. Therefore, it is prayed that the appeal

filed by the State may be dismissed.

7. We have heard learned counsel for the parties and carefully

perused the material available on record.

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8. In the first place, we would indicate that mere seizure of blood-

stained articles, without conclusively linking them to the accused and

the crime, cannot be a ground for conviction of a person for a serious

offence like murder [refer, "Brijesh Mavi v. State (NCT of Delhi)" (2012)

7 SCC 45].

9. The case of the prosecution entirely rests upon the circumstantial

evidence and last seen evidence of PW-4 Khaniya and PW-5 Kaliya. Both

these witnesses have not fully supported the prosecution story and one

of them P.W.5 Kaliya was declared hostile and also no person came in

the Court to inform that he had seen the murder of deceased person in

the intervening night of 5th/6th September, 2000.

10. On the last seen theory, it is quite a well settled proposition that

such evidence would be highly incriminating and it would be for the

accused to explain what happened after he was seen last in the

company of the deceased. However, as held by the Hon'ble Supreme

Court in "Navaneethakrishnan v. The State by Inspector of Police"

(2018) 16 SCC 161, the last seen together evidence can by itself alone

cannot be one such circumstance in the chain of circumstances which

can be considered conclusive by the Court to arrive at a conclusion that

the accused is the person who committed the murder.

11. In a case based on circumstantial evidence, this is the duty of the

prosecution to establish by leading cogent and clinching evidence that

the chain of circumstances is so complete as to raise an inference that it

was the accused person(s) facing the trial who committed the crime and

all possibility of innocence of the accused person(s) has been ruled out.

In "Hanumant Govind Nargundkar v. State of M.P." (1952) 2 SCC 71,

the Hon'ble Supreme Court held as under:

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"10...It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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 the conclusion nature and the tendency and they should be such as to excluded 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."

12. In the considered opinion of this Court, the evidence of P.W.-4 and

P.W.-5 is not of such quality as to raise adverse inference against the

accused persons as provided under section 106 of the Evidence Act. Not

only that, there is no other evidence that would lend credibility to the

last seen theory and, therefore, the Sessions Court rightly took a

decision to acquit the accused persons of the charges framed against

them in Sessions Case No.398 of 2000.

13. Section 378 of the Code of Criminal Procedure does not provide

any limitation to the powers of the High Court to revisit the decisions of

the Sessions Court after re-appreciating the evidence laid during the

trial. However, there are well settled limitations on the powers of the

High Court to interfere with a judgment of acquittal rendered by the

trial Court. In "Sheo Swarup v. King Emperor" 1934 SCC OnLine PC 42,

the Privy Council held as under:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reserved. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper wait and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly now weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the showness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the

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advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

14. The learned trial court, after thoroughly evaluating the evidence,

came to the conclusion that the prosecution failed to establish a case

against the accused-respondents beyond reasonable doubt. Looking to

the inconsistencies in the prosecution's version and the lack of

conclusive evidence linking the accused to the crime, this Court finds no

justification to interfere with the well-reasoned judgment of acquittal

recorded by the trial court.

15. In view of the discussion made above, the appeal deserves to be

dismissed and the same is hereby dismissed.

16. The record of the trial court be returned forthwith.

(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J

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