Rajasthan High Court - Jodhpur
State Of Rajasthan vs Sharafat (2025:Rj-Jd:26666-Db) on 30 May, 2025
[2025:RJ-JD:25617-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Murder Reference No. 1/2022
State of Rajasthan, through Public Prosecutor
----Petitioner
Versus
1. Sharafat son of Saleem Khan, aged about 20 years,
resident of H.no. 9, Nagarpalika Karmchari Colony Nawab
Ka Nimbahera Thana Kotwali, Nimbahera Dist. Chittorgarh
(Rajasthan).
2. Rajesh Kumar son of Ratan Lal, aged about 35 years,
resident of Choudhary Mohalla, Kukdeshwar, Thana
Kukdeshwar Dist. Neemuch (Madhya Pradesh).
----Respondents
Connected With
D.B. Criminal Appeal (DB) No. 126/2022
1. Sharafat son of Sh. Saleem Khan, aged about 20 years,
resident of House No. 9, Nagarpalika Karamchari Colony,
Nawab Ka Nimbahera, police Station Kotwali, Nimbahera,
District Chittorgarh (Rajasthan) (Presently lodged in
Central Jail, Bhilwara)
2. Rajesh Kumar son of Sh. Ratan Lal, aged about 35 years,
resident of Choudhary Mohalla Kukdeshwar, police Station
Kukdeshwar, District Neemuch (Madhya Pradesh)
(Presently Lodged In Central Jail, Bhilwara)
----Appellants
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Vineet Jain, Sr. Advocate assisted
by Mr. Harshvardhan Singh, Advocate
For State : Mr. Deepak Choudhary, AAG
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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
JUDGMENT
Reserved on : 27/03/2025
Pronounced on : 30/05/2025
Per, Shree Chandrashekhar, J.:
D. B. Murder Reference No.01/2022 has been registered
on the basis of the communication dated 06 th August 2022
from the Additional Sessions Judge (Atrocities against Women
cases), Bhilwara for confirmation of the sentence of death
awarded to Sharafat son of Salim Khan and Rajesh Kumar
son of Ratan Lal in Sessions Case No.12/2015 (35/2021).
These convict-appellants have preferred D.B. Criminal Appeal
No.126/2022 to lay a challenge to the judgment of conviction
under sections 364, 302 and 201 read with section 34 of the
Indian Penal Code delivered on 30th July 2022 and the order
of sentence passed against them on 06th August 2022.
2. On 06th August 2022, the Additional Sessions Judge
heard the convict-appellants on the point of sentence and
passed the order of sentence of death against them. The
Additional Sessions Judge considered the aggravating and
mitigating circumstances in the case and arrived at a
conclusion that the aggravating circumstances against the
convict-appellants outweigh the mitigating circumstances in
their favor and the crime committed by them falls under the
category of rarest of the rare case. While deciding to award
the sentence of death to the convict-appellants, the
Additional Sessions Judge held that the convict-appellants are
menace to the society who cannot be let off free and it would
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pose a serious danger to the society if they are rehabilitated
in the society.
3. In Sessions Case No.12/2015, the convict-appellants
have been awarded a sentence of death under section 302
read with section 34 of the Indian Penal Code; rigorous
imprisonment for ten years with fine of Rs.10,000/- each
under section 364 read with section 34 of the Indian Penal
Code with a default stipulation to undergo simple
imprisonment of three months each and; rigorous
imprisonment for seven years and a fine of Rs.5,000/- under
section 201 read with section 34 of the Indian Penal Code
with a default stipulation to undergo simple imprisonment of
one month each. The Additional Sessions Judge (Atrocities
against Women cases), Bhilwara further ordered that the
sentences awarded to these convict-appellants shall run
concurrently and the sentence of death by hanging shall be
executed on receipt of the warrant of execution. As to
disposal of the seized Tavera, the Additional Sessions Judge
issued a direction to the effect that the said vehicle shall
remain in possession of the mother of Sharafat and the crime
articles, clothes, etc. shall be destroyed on expiry of the
period of appeal but, in case an appeal is preferred, these
articles shall be preserved in 'malkhana' and disposed of as
per the direction of the appellate Court.
4. In a judgment running across forty-two pages, the
Additional Sessions Judge discussed the chain of
circumstances connecting the convict-appellants with the
crime and held that Sharafat and Rajesh Kumar committed
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murder of six persons. While recording such finding and, in
connection therewith, the Additional Sessions Judge
considered the evidence leading to recovery of the dead
bodies of four children by the accused persons, their
confessional statements, testimony of the employees of the
Toll Plaza, motive for the crime and scientific evidences such
as FSL reports and call detail reports.
5. Mr. Vineet Jain, the learned senior counsel appearing for
the convict-appellants challenged the findings recorded by the
Additional Sessions Judge with reference to the prosecution
evidence and submitted that the prosecution failed to prove
the charge of abduction and murder against the convict-
appellants by producing clear and cogent materials. The
learned senior counsel for the convict-appellants submitted
that the prosecution failed to establish that the chain of
circumstances is so complete that the only inference which
can be drawn therefrom is the guilt of the convict-appellants
after excluding every reasonable hypothesis of innocence of
the convict-appellants. He relied on the decisions in "Alauddin
& Ors. v. State of Assam & Anr."1, "Jafarudheen & Ors. v.
State of Kerala"2, "Pohalya Motya Valvi v. State of
Maharashtra"3, "Pulukuri Kottaya & Ors. v. Emperor"4,
"Ravishankar Tandon v. State of Chhattisgarh"5, "Anwar Ali &
Anr. v. State of Himachal Pradesh"6, "Ramanand @ Nandlal
1 2024 SCC OnLine SC 760
2 2022 (4) SCC 732
3 1980 (1) SCC 530
4 1946 0 Supreme(SC) 49
5 2024 (3) Supreme 690
6 2020 (10) SCC 166
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Bharti v. State of Uttar Pradesh"7 and "Dadulla & Ors. v. The
State of M.P."8.
6. This is a case of gruesome murder of six persons in
respect to which Crime No.240/2015 was registered under
section 302 of the Indian Penal Code. This First Information
Report was registered against unknown on the basis of a
written report submitted on 28th July 2015 by Babulal son of
Banshilal given at the place of occurrence to the Officer-in-
Charge of Mandal P.S. On 28th July 2015, a seizure memo
was prepared around 06.00 PM at House No.209, New
Housing Board Colony, Nimbahera which is the residence of
Md. Yunus. From this house (a) photo I.D. of Md. Yunus,
(b) photo I.D. of Chand Tara, (c) Pan Card of Md. Yunus,
(d) driving license of Md. Yunus, (e) Aadhar Card of
Md. Yunus and (f) family photograph of Md. Yunus, his wife
and the children, namely, Ashraf, Gudia, Sazia and Asida
were seized (exhibit P-21), in presence of Dilip Singh resident
of 3/109 New Housing Board Colony, Nimbahera and Satish
Kumar resident of 2/212 New Housing Board Colony,
Nimbahera. On 29th July 2010, the dead bodies of one male
and three female children were recovered from a ditch
adjacent to the grazing ground near the Supertech Brick
Factory, and 'fard' inspection report of the place of recovery
was prepared. In this sketch map, on one side of the ditch
was the barren Government grazing ground and on the other
side is also a barren Government land. PW-38 has recorded in
7 2022 (8) SCC 581
8 1961 SCC OnLine MP 176
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exhibit P-22 that the distance between the place of
occurrence and N.H. 79 is around 200 meters.
7. In course of the investigation, the Investigating Officer
collected the post-mortem report of Chand Tara vide exhibit
P-53, Asraf vide exhibit P-54, Sazia vide exhibit P-55, Sakina
vide exhibit P-56, Md. Yunus vide exhibit P-57 and Gudiya
vide exhibit P-58. The Investigating Officer recorded the
disclosure statements of Sharafat and Rajesh Kumar and
seized blood-stained clothes of Sharafat vide exhibit P-47 and
of Rajesh Kumar vide exhibit P-46. The prosecution story that
the crime committed by Sharafat and Rajesh Kumar using a
sword is sought to be corroborated by the testimony of
PW-39 Dr. Omprakash Sharma who deposed in the Court that
the injuries found on the dead bodies of Md. Yunus, Chand
Tara and their four children were caused by sharp cutting
weapon. The seizure memo of Tavera having registration
No.RJ-27-TC-0323 vide exhibit P-38 was prepared on 28 th July
2015 in the presence of PW-14 and PW-17. On 30 th July 2015
around 08.00 AM, samples of (a) blood stains on the driver
seat vide mark 'L', (b) blood on the inside handle of the driver
door vide mark 'M', (c) blood on the right side of the driver
seat vide mark 'N', (d) soil on the mat near the driver seat
vide mark 'P', (e) hair found behind the driver seat vide mark
'Q' and (f) hair found from the back seat vide mark 'R' were
prepared in the presence of Shabir Mohammad and Kanhaiya
Lal. The details of vehicles which passed through Toll Plaza
between 7:49:17 and 01:56:52 on 28 th July 2015 vide exhibit
P-64 is a printed sheet for Shift-1. This document was
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produced by the prosecution to establish that a new car had
passed through the Toll Plaza at 1:22:19 on 28 th July 2015
and return journey ticket was purchased for that car. This
printed sheet provided by Prakash Asphaltings and Toll
Highways (India Limited) does not seem to contain the details
of all the vehicles that crossed the Toll Plaza going towards
Jaipur on 28th July 2015. This printed sheet contains details of
only 4 vehicles which had passed the Toll Plaza and there is
no description of the vehicle over exhibit P-64.
8. In the trial, the prosecution examined Forty-one
witnesses to establish the charge of abduction and murder
and of attempting to conceal the evidence. PW-2 Rameshwar
Lal and PW-15 Jagdish are the recovery witnesses at the
place of occurrence but PW-15 did not support the
prosecution case and turned hostile. PW-7 Satish Kumar and
PW-11 Dilip Singh were produced by the prosecution to prove
recovery from the house of Md. Yunus but both of them did
not support the prosecution case. PW-6 Mukesh, PW-8 Suresh
Kumar and PW-18 Ramlal came in the dock to support the
prosecution story that the deceased Md. Yunus was identified
through the lable on his shirt which was stitched at Shri
Morwar Tailors. PW-14 Ramprasad, PW-17 Sabir Khan and
PW-19 Tahir were examined to establish that the Tavera and
the pocket diary of Md. Yunus were recovered from the
houses of Sharafat at New Housing Board Colony and
Municipality Employees Colony at the instance of Sharafat.
PW-21 Shabir Mohammad and PW-24 Kanhaiyalal witnessed
the sample collection by the Forensic team from Tavera. They
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are also witnesses to the seizure of cloths and weapon at the
instance of the accused persons vide exhibits P-44, P-45,
P-46, P-47 and P-48. Exhibit P-111 which was prepared in
connection to recovery of dead bodies of four kids has been
proved through PW-40 Shaitan Singh and PW-41 Hari Ram.
9. The Additional Sessions Judge started with the
prosecution story how the dead bodies could be identified by
PW-38. The learned Judge then turned to motive for the
crime and recovery of the incriminating materials on the basis
of the confessional statements given by Sharafat and Rajesh
Kumar. The trial Judge held that a portion of the disclosure
statements by Sharafat and Rajesh Kumar could have been
utilized by the prosecution as piece of admissible evidence to
support the charge of abduction and murder against them.
Moving further, the trial Judge scrutinized the evidence of
last-seen together sought to be established by the
prosecution against Sharafat and Rajesh Kumar and held that
such evidence was clinching and conclusive as to the guilt of
Sharafat and Rajesh Kumar and delivered the judgment of
conviction against them under sections 364, 302 and 201
read with section 34 of the Indian Penal Code.
10. Section 386 of the Code of Criminal Procedure confers
wide powers in the appellate Courts to reverse the finding
and sentence and acquit or discharge the accused, or order
him to be retried by Court of competent jurisdiction
subordinate to the High Court. However, in "Deb Narayan
Halder v. Anushree Halder (Smt.)"9, the Hon'ble Supreme
9 2003 (11) SCC 303
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Court observed that appellate Court or revisional Court would
not interfere with the findings recorded by the Court below
unless it is shown that such findings are perverse or the
Court has acted with material irregularity. In paragraph no.11
of the reported judgment, the Hon'ble Supreme Court has
observed as under :-
"11............ It is well settled that the appellate or
revisional court while setting aside the findings
recorded by the court below must notice those
findings, and if the appellate or revisional court
comes to the conclusion that the findings
recorded by the trial court are untenable, record
its reasons for coming to the said conclusion.
Where the findings are findings of fact it must
discuss the evidence on record which justify the
reversal of the findings recorded by the court
below. This is particularly so when findings
recorded by the trial court are sought to be set
aside by an appellate or revisional court. One
cannot take exception to a judgment merely on
the ground of its brevity, but if the judgment
appears to be cryptic and conclusions are
reached without even referring to the evidence
on record or noticing the findings of the trial
court, the party aggrieved is entitled to ask for
setting aside of such a judgment......"
11. With the aforesaid principles in mind, we would now
examine whether the prosecution case against the convict-
appellants is based on cogent materials and proved beyond
reasonable doubt or not. This is the case of the prosecution
that the Investigating Officer came to Shri Morwar Tailors and
enquired about the deceased who was wearing the shirt
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stitched by Shri Morwar Tailors. On the basis of the
information supplied to him by PW-6 Mukesh Kumar, the
Investigating Officer came to the house of the deceased
person who was identified as Md. Yunus by Mukesh Kumar.
When he arrived at the Housing Board Colony at Nimbahera,
the Investigating Officer found that the house of Md. Yunus @
Yunus Bhai was locked. However, his neighbour PW-5 Dali Bai
informed him that Md. Yunus has gone to Ajmer with his
family to offer prayers. She identified the photograph of Md.
Yunus and his wife Chand Tara. As per the prosecution, the
Investigating Officer could see the telephone number of the
father of Md. Yunus written on the wall of his house and he
then made a call to PW-28 Haider Ali. To prove that Sharafat
had a motive to commit murder of Chand Tara, the
prosecution projected a case that Haider Ali informed the
Investigating Officer that Sharafat had a dispute with his son.
This is the further case of the prosecution that the
information about illicit relationship of his son with Chand
Tara was given by Seema who was the younger sister of
Chand Tara and was staying with her for the last few years.
To establish the charge of murder, the prosecution relied on
the disclosure statements made by Sharafat and Rajesh
Kumar before the Investigating Officer on 29 th July 2015 and
subsequent dates. The prosecution relied on the
circumstances of the recovery of dead bodies of four children,
blood-stained clothes of Sharafat and Rajesh Kumar, recovery
of Tavera and other incriminating materials, such as, blood
and hair found inside the Tavera. The prosecution has also
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relied on recovery of the crime weapon which was a sword,
the medical evidences and the FSL reports.
12. PW-1 Babulal received a telephonic information around
6 AM on 28th July 2015 that two dead bodies were lying on
highway NH-79 around the near Hiraji Ka Khera. He arrived
at the place of occurrence with Udaylal Gurjar, Bhanwarlal
Gurjar, Shankar Gurjar and others. He stated that he spoke
to the Officer-in-Charge of the police station around 7 AM and
then the police came to the place of occurrence after about
15 minutes. He further stated that he gave a written report to
the police at the place of occurrence around 7:30 AM and
identified his signature marked between "A" to "B" over
exhibit P-1. He also admitted having his signature over
exhibit P-2 which was inquest report of a woman and exhibit
P-3 in relation to unknown male person. He admitted in the
cross-examination that there were about ten persons present
at the place of occurrence when he came to the place of
occurrence. He further stated in the Court that about hundred
persons had assembled at the place of occurrence and he
identified Jagdish, Rameshwar, Udaylal, Bhanwarlal Gurjar
and Shankar Gurjar among the persons present at the place
of occurrence. PW-2 is another witness who gave a narration
of the events after the dead bodies of unknown male and
female were recovered. He stated as under :-
"ihMCY;w 2
?kVuk djhc 7&8 eghus igys dh gSA xkao ghjk th dk
[ksMk ds jksM ds ikl esa 2 yk'ksa iM+h Fkh] ftldh lwpuk
lqudj iwjs xkao ds yksx ogka ij x;s eSa Hkh 8&9 cts ogka
ij x;kA iqfyl us esjs lkeus vKkr e`rd dh [kwu vkywnk
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deht dh dkWyj dh QksVksxzkQh dj QnZ cukbZ tks izn'kZ
ih 5 gS ftl ij , ls ch esjs gLrk{kj gSA QnZ tCrh diM+s
efgyk izn'kZ ih 6 gS ftl ij , ls ch esjs gLrk{kj gSA
QnZ tCrh [kwu vkywnk diM+s vKkr e`rd iq#"k izn'kZ ih 7
gS ftl ij , ls ch esjs gLrk{kj gSA QnZ tCrh [kwu
vkywnk daVªksy lsaiy lknk feV~Vh ?kVuk LFky vKkr
e`rdk efgyk izn'kZ ih 8 gS] ftl ij , ls ch esjs gLrk{kj
gSA QnZ tCrh [kqu vkywnk feV~Vh o daVªksy lsaiy feV~Vh ?
kVukLFky vKkr e`rd iq:"k izn'kZ ih 9 gS ftl ij , ls
ch esjs gLrk{kj gSA QnZ tCrh cky vKkr e`rd iq:"k
izn'kZ ih 10 gS ftl ij , ls ch essjs gLrk{kj gSA QnZ
tCrh cky ?kVuk LFky ij iMs vKkr e`rd iq:"k ds 'kjhj
ij igus gq, diMks ij ls izn'kZ ih 11 gS ftl ij , ls ch
esjs gLrk{kj gSA QnZ tCrh flj ds cky vKkr e`rd iq:"k
ds izn'kZ ih 12 gS ftl ij ,s ls ch esjs gLrk{kj gSA QnZ
tCrh vKkr e`rdk efgyk ds flj ds cky izn'kZ ih 13 gS
ftl ij , ls ch esjs gLrk{kj gSA QnZ tCrh e`rdk efgyk
ds ?kVukLFky ij iMs VwVh pwfM;ka] jcM cs.M] ysMh pIiy]
ilZ izn'kZ ih 14 gS ftl ij , ls ch esjs gLrk{kj gSA QnZ
tCrh vKkr e`rd iq:"k ds ?kVukLFky ij fc[kjh gqbZ gkFk
dh ?kMh o mldk <Ddu] vaxwBh] ,d pIiy dh tksMh]
Vksih] pkfc;ka] 500 :i;s dk uksV izn'kZ ih 15 gS ftl
ij , ls ch esjs gLrk{kj gSA QnZ fujh{k.k ?kVuk LFky
izn'kZ ih 4 gS ftl ij lh ls Mh esjs gLrk{kj gSA
English Translation
PW-2
The incident happened about 7-8 months ago.
Two dead bodies were lying near the road of
village Heera ji ka Kheda. On hearing the news,
people of the village went there and I also went
there at 8-9 o'clock. The police took photographs
of the collar of the blood-stained shirt of the
unknown deceased in front of me and prepared a
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report which is exhibit P-5 on which my
signatures are from A to B. The report of seizure
of clothes of a woman is exhibit P-6 on which my
signatures are from A to B. The report of seizure
of blood-stained clothes of an unknown deceased
male is exhibit P-7 on which my signatures are
from A to B. The report of seizure of blood-
stained control sample plain soil from the scene
of an unknown deceased female is exhibit P-8 on
which my signatures are from A to B. The report
of seizure of blood-stained soil and control
sample soil from the scene of an unknown
deceased male is exhibit P-9 on which my
signatures are from A to B. The report of seizure
of child of an unknown deceased male is exhibit
P-10 on which my signatures are from A to B.
The seizure hair found at the crime scene is
exhibit P-11 of the clothes worn on the body of
the unknown deceased man on which my
signatures are from A to B. The seizure hair from
the head of the unknown deceased man is
exhibit P-12 on which my signatures are from A
to B. The seizure hair from the head of the
unknown deceased woman is exhibit P-13 on
which my signatures are from A to B. The seizure
broken bangles, rubber band, lady slippers,
purse of the deceased woman found at the crime
scene is exhibit P-14 on which my signatures are
from A to B. The seizure wrist watch and its
cover, ring, a pair of slippers, cap, keys, 500
rupee note scattered at the crime scene of the
unknown deceased man is exhibit P-15 on which
my signatures are from A to B. The seizure
inspection crime scene is exhibit P-4 on which
my signatures are from C to D."
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13. While revisiting the prosecution story, we observe that
the identification of the accused persons involved in the crime
is not free from suspicion. As the prosecution story goes;
PW-38 came to the house of Md. Yunus and found the
telephone number of Haider Ali written on a wall. At this
place, PW-5 Dali Bai informed him that Sharafat has a house
at the Housing Board Colony and PW-38 reached there
around 06:15 PM. Mr. Vineet Jain, the learned senior counsel
for the convict-appellants referred to the remand application
moved by PW-38 and several documents which had cutting or
over-writing over the time mentioned thereon to submit that
on suspicion only the convict-appellants were implicated in
the crime.
14. PW-5 Dali Bai who was a resident of Nimbahera Housing
Board Colony denied any acquaintances with Md. Yunus and
she was declared hostile. In the cross-examination, she
stated that she did not know Md. Yunus or his wife Chand
Tara or even Salim. This witness was recalled at the instance
of the prosecution and she stated in her re-examination that
she did not know how to put a signature. PW-6 stated in the
Court that he has a shop at Dak Bangla Road, Nimbahera by
the name of Shri Morwar Tailors. According to PW-6, the
police came to him on 28th July 2015 and showed a label and
asked him whether he knew any person by the name of
Md. Yunus. He further stated that he identified the cloth from
the label and found from the bill book that Yunus Bhai was a
customer. PW-6 identified his signature over exhibit P-17
which was the original bill. The cross-examination of this
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witness was deferred for another day on the request of the
Public Prosecutor. On the next day, this witness stated in the
Court contrary to the prosecution case and was declared
hostile. In course of cross-examination by the prosecution,
PW-6 stated that the police told him the name of Yunus Bhai
and showed him label on the shirt. He admitted that exhibit
P-17 was prepared in the name of Yunus Bhai but he did not
remember who that Yunus Bhai was. He denied that he ever
disclosed to the police that Yunus Bhai was a resident of New
Housing Board Colony, Nimbahera. He further stated that
PW-7 Satish Kumar had told him that the police took his
signature over a plain paper and no seizure was made in his
presence.
15. PW-8 Suresh Kumar is the owner of Shri Morwar Tailors.
He identified exhibit P-17 and his signature thereon. However,
this witness further stated that exhibit P-17 was initially not
signed by him and he put his signature thereon at the
instance of the police.
16. PW-16 stated in the Court that the police had asked him
about the deceased person showing the label of the tailoring
shop. At the same time, this witness stated that the police
had disclosed the name of deceased person as Yunus and
informed him that Yunus had met with an accident. As per
PW-16, he checked the bill books and found that there was
one entry in the name of Yunus; the said bill has been
marked as exhibit P-17. This bill did not bear the address of
Md. Yunus and PW-16 admitted in the Court that he had no
idea about Md. Yunus and his family and he denied that he
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had disclosed the address of Md. Yunus at New Housing
Board Colony, Nimbahera. PW-8 stated in the Court that
exhibit P-17 was affixed on a paper and his signatures were
obtained later on. PW-16 stated in the cross-examination that
PW-8 was not present at the shop when the Investigating
Officer came there. PW-38 who is the Investigating Officer
admitted that he came to the tailoring shop around 05:15 PM
on 28th July 2015 and showed the photographs to PW-6.
However, no such photograph was found in the records nor
was there any mention about that fact in exhibit P-18.
According to PW-38, the convict-appellants were arrested on
8:00 PM at the Police Station and he came to their house at
Municipal Colony after he had conducted inquiries at New
Housing Board Colony. He took the convict-appellants in
custody around 06:30 PM and took them to the Police
Station. He further stated that Haider Ali had disclosed him
about the involvement of the convict-appellants and, that,
they had admitted their guilt before they were formally
arrested by him.
17. The application for remand vide exhibit P-8 moved by
PW-38, when the convict-appellants were produced before
the Judicial Magistrate on 29th July 2015 reveal that remand
of the convict-appellants was sought on the ground that the
weapon of offence, clothes worn by the accused persons at
the time of occurrence and vehicle used in the crime were still
to be recovered. Mr. Vineet Jain, the learned senior counsel
for the convict-appellants pointed out that the aforesaid
materials were already collected by PW-38 before the convict-
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appellants were produced before the Judicial Magistrate on
29th July 2015 and, therefore, the recoveries made by PW-38
after 29th July 2015 were concocted. According to the learned
senior counsel, the convict-appellants were kept at the Police
Station for about two hours before drawing the memo of
arrest and PW-38 had made the convict-appellants suffer
disclosures statements under duress.
18. PW-38 Mukund Singh was the Officer-in-Charge at
Mandal P.S. He described the steps in the course of
investigation. In the cross-examination, PW-38 admitted that
it is not recorded in exhibits-P 19 and 21 that he rang up
Haider Ali on the telephone number which was written on the
wall of the house belonging to Md. Yunus. He further
admitted that the said telephone number is not mentioned in
the Court's records. He further stated that it is not recorded
in the records that he rang up Haider Ali at 05:35 PM
According to PW-38, he arrived at Bhilwara Hospital at 08:00
AM on 30th July 2015 and at that time Haider Ali and his wife
Seema and her brother and sister had arrived there. He
recorded his statement on 30th July 2015 at Bhilwara
Government Hospital. He further admitted in the Court that
Haidar Ali did not inform him about animosity of Md. Yunus
with Salim and his family. We have carefully examined the
materials on record and find that there are several
discrepancies in the sequence of events as to how PW-38
nabbed Sharafat and Rajesh Kumar and they, in turn, gave
the alleged disclosure statements before him on different
dates and time.
[2025:RJ-JD:25617-DB] (18 of 51) [MREF-1/2022]
19. In a criminal trial, generally motive is considered a weak
piece of evidence but it cannot be said that it is not at all
relevant to decide culpability of an accused and, therefore, its
importance cannot be undermined. May be motive is not a
decisive factor by itself and only on the basis of motive an
accused cannot be convicted for a crime like murder but it is
difficult to say that in a criminal trial motive is irrelevant.
Rather, motive plays an important role in a case based on
circumstantial evidence. In "Surinder Pal Jain v. Delhi
Administration10", the Hon'ble Supreme Court has observed,
thus:-
"11. .... In a case based on circumstantial
evidence, motive assumes pertinent significance
as existence of the motive is an enlightening
factor in a process of presumptive reasoning in
such a case. The absence of motive, however,
puts the court on its guard to scrutinise the
circumstances more carefully to ensure that
suspicion and conjecture do not take place of
legal proof."
20. Haider Ali who is the father of Md. Yunus was examined
as PW-28. He stated in his examination-in-chief that his son
Md. Yunus lived at Nimbahera. He received an information
from the police about two and a half years ago that his son
was murdered. He then visited Bhilwara Government Hospital
and identified the dead body of his son, daughter-in-law and
their four children. He deposed in the Court that his wife used
to tell him that Sharafat and Khatik had some grudge against
their son. He further stated that was the reason he suspected
10 1993 Supp. (3) SCC 681
[2025:RJ-JD:25617-DB] (19 of 51) [MREF-1/2022]
that Sharafat and Khatik had killed his son. What is important
to notice in the testimony of PW-28 is that Seema who is the
sister-in-law of Md. Yunus lived at Nimbahera with Md. Yunus
for about six years had left Nimbahera much before the
occurrence took place.
21. PW-28 stated in his examination-in-chief thus :-
"ihMCY;w 28
djhcu <kbZ lky igys dh ckr gSA eSa esjs xkao dVjk
cktkj esa vius ?kj ij FkkA gekjs xkao ds Fkkus okyksa dks
pkSdh okyksa us crk;k fd rqEgkjk yM+dk fuEckgsM+k esa jgrk
gS ftldk eMZj gks x;k gSA rqEgkjs yM+dk vkSj ,d vkSjr
dk irk yxk gS fd eMZj gks x;k gSA rks eSus cksyk fd esjs
iksrh&iksrk dgk gS fd rks mUgksus dgk fd iqfyl [kkst jgh
gSA esjs cPps dk uke ;quql FkkA mldh iRuh dk uke
pkanrkjk FkkA iksrs&iksfr;ksa dk vljr] xqfM+;k] lTtks vkSj
NksVh okyh ftls ge fVeh Vkfe;k dgrs FksA iqfylokyksa ls
geus iwNk fd eMZj dgk gqvk gS rks mUgksaus dgk fd pys
vkvks ek.My Fkkus ds ikl esa eMZj gqvk gSA esjk
cPpk ;quql fuEckgsM+k esa jgrk FkkA eSa fuEckgsM+ nks ckj
vius cPps ds ikl x;k FkkA esjh iRuh Hkh esjs lkFk esa xbZ
FkhA eSus eMZj dh lwpuk viuh vkSjr ls vius ifjokj ls
cksys] lhek ls cksysA lhek ;wuql dh lkyh FkhA HkhyokM+k eSa]
esjh iRuh] esjh eka vkSj ;wuql dh lkyh] lkyk vkSj lkl
vkSj xqM~Mq vk;k Fkk] dyke vk;k FkkA HkhyokM+k esa ge
ljdkjh vLirky esa igqapsA fQj ogka geus yk'ksa ns[khA
yk'kksa esa esjs yM+ds dh] cgq dh vkSj cPpksa dh yk'ksa ns[khA
iqfylokyksa us iksLVekVZe fd;k] yk'k vafre laLdkj gsrq gesa
lqiqnZ dh ftldh lqiqnZxh QnZ cukbZ tks izn'kZ ih&36 gS
ftl ij ,Dl LFkku ij esjh vaxqBk fu'kkuh gSA ekyqe iM+k
fd 'kjkQr o [kVhd us bu yksxksa dks eMZj fd;k gSA esjh
vkSjr dgrh Fkh fd igys muls dqN jath'k Fkh blfy;s
[2025:RJ-JD:25617-DB] (20 of 51) [MREF-1/2022]
eMZj fd;k FkkA blfy;s eq>s 'kadk gqvk fd bu yksxksa us
ekjk ;k ejok;k gSA ;s ckr eSus lhek dks crkbZ rks lhek us
dgk fd gka ,slk gks ldrk gSA 'kjkQr ds firk dk uke
lyhe gSA lhek fuEckgsM+k esa ;wuql ds lkFk Ng lky jgh
FkhA 'kjkQr fuEckgsM+k dk jgus okyk gSA
English Translation
PW-28
This happened about two and a half years ago. I
was at home in my village Katra Bazar. The
police post person informed the police station
that my son who was living at Nimbahera has
been murdered. My son and a woman were
found murdered. So I asked where were my
grandchildren then they said that the police were
searching for them. My son's name was Md.
Yunus. His wife's name was Chand Tara. The
grandchildren were Asrat, Gudiya, Sajjo and the
younger one whom we called Timmy Tamia.
When we asked the police where the murder
took place, they said come, the murder took
place near Mandal police station. My son
Md.Yunus lived in Nimbahera. I went to
Nimbahed twice to see my son. My wife also
went with me. I informed my wife, my family,
Seema about the murder. Seema was Md.
Yunus's sister-in-law. In Bhilwara, my wife, my
mother and Md. Yunus's sister-in-law, brother-
in-law and mother-in-law and Guddu had come.
Kalam had come. In Bhilwara we reached the
government hospital. Then we saw dead bodies
there. Among the dead bodies, I saw the dead
bodies of my son, daughter-in-law and children.
The policemen did the post-mortem and handed
over the dead bodies to us for the last rites.
They prepared the delivery report which is
[2025:RJ-JD:25617-DB] (21 of 51) [MREF-1/2022]
exhibit P-36 on which my thumb impression is at
the X place. We came to know that Sharafat and
Khatik had murdered these people. My wife used
to say that they had some grudge against them
earlier and that is why they murdered them.
That is why I suspected that these people had
killed them or got them killed. When I told this
to Seema, Seema said that yes, this can happen.
Sharafat's father's name is Salim. Seema had
lived with Md. Yunus in Nimbahera for six years.
Sharafat is a resident of Nimbahera."
22. In the cross-examination, PW-28 stated that his son
Md. Yunus was living at Nimbahera in a rented house. He
had come to Nimbahera about 15 years after his son came to
live there. He admitted that there was no discussion about
any dispute between his son and daughter-in-law
Chandrakala at the time he visited Nimbahera. He further
stated in the cross-examination that Seema had telephonic
conversations with him and his wife and that mainly related
to household matters. He further stated that, if at all, Seema
had any discussion about any dispute or enmity with
someone that might have been discussed with his wife but
not with him. This is also the statement of PW-6 that he and
his wife had a talk last with Seema about two and a half
years ago on the occasion of Eid. PW-6 also stated that
Seema had a conversation with him and his wife about four
days after she went back to her village. Most importantly,
PW-6 admitted in the Court that he had no clue about any
conversation between Seema and his wife regarding any
dispute. He further admitted that he had no knowledge about
[2025:RJ-JD:25617-DB] (22 of 51) [MREF-1/2022]
the person(s) with whom Md. Yunus had any dispute or
quarrel.
23. Seema who is the sister-in-law of Md. Yunus was
produced by the prosecution as PW-32. She stated in her
examination-in-chief that she lived with the family of her
sister Chand Tara at Nimbahera Housing Board near
Chittorgarh. She further stated that Salim who was a
neighbour of her sister Chand Tara used to visit her house
and would take meal with her. She further stated that he
would call her sister to his house whenever he got a chance.
According to this witness, Salim would call her sister in the
night and her sister had food at his place. She had told
Sharafat whom she met once to speak to his father about this
relationship then he had told her that he would kill her sister
and brother-in-law. She further stated that she spoke to her
sister but she did not listen and then she had a fight with her
and left Nimbahera and went to her village. PW-32 deposed
in the Court as under :-
"ihMCY;w 32
;g djhc rhu lky gksus okys gSA eSa fuEckgsMk] gkmflax
cksMZ esa jgrh FkhA fuEckgsMk fpRrkSMx< ds ikl gSA esjs
lkFk esjs thtk ;quql eksgEen] esjh cgu pkan rkjk vkSj
esjk Hkkautk vkSj Hkkt.kh vljQ o xqfM;k o "kkft;k vkSj
"kfduk jgrs Fks vkSj cgus ds lkr efgus dk xHkZ FkkA vkSj
ge Hkh cgu ds lkFk gh jgrs FksA gekjs edku ds ikl
lyhe dk Hkh edku FkkA lyhe vkSj esjh cgu dk xyr
laca/k FksA esjs ?kj ij lyhe vkrs Fks] [kkuk okuk [kkrs FksA
esjh cgu dks Hkh vius ?kj ij tc ekSdk feyrk rc cqykrs
FksA tc lyhe dks ekSdk feyrk rc esjh cgus dks jkr esa
[2025:RJ-JD:25617-DB] (23 of 51) [MREF-1/2022]
Hkh cqykrs FksA esjs ?kj ij [kkuk [kkrs Fks] esjh cgu Hkh
muds ?kj [kkuk [kkus tkrh FkhA lyhe dk yM+dk "kjkQr
,d ckj esjs dks feyk] esjs dks cksyk viuh cgu dks euk
dj ns fd esjs cki ls laca/k er j[kA rks ge cksys fd rqe
vius cki dks euk djA fQj oks esjs dks cksyk fd rsjs cgu
vkSj thtk dks ekj MkywaxkA rks fQj eSaus viuh cgu dks
euk fd;k fd ,sls er dj] esjh cgu ugha ekuhA tc esjh
cgu ugha ekuh rks blh ckr dks ysdj esjh cgu ls esjk
>xM+k gks x;k] vkSj eSa vius xkao pyh x;hA fQj esjs dks
xkao esa irk pyk fd lyhe dh e`R;q gks x;h gSA fQj
mlds ckn esjs dks irk pyk fd esjh cgu pkan rkjk]
vkSj ;quql vkSj xqfM;k] vljQ] "kkft;k vkSj "kfduk dh
e`R;q gks x;h] iqfyl okyksa us Qksu ls crk;kA mlds ckn
esjh vEeh] "kfdyk vkSj esjs nks HkkbZ dyke vkSj dyhe vkSj
gSnj vyh] vkSj esjh cgu dh lkl Hkh cukjl ls HkhyokM+k
gkWLihVy vk;sA fQj mlds ckn esa lcdh yk"k ns[khA N
tuksa dh yk"ks ns[khA fQj esjs dks "kd gqvk fd "kjkQr us
pkan rkjk] ;quql] xqfM+;k] "kTtksa dks ekj MkykA fQj mlds
ckn irk pyk dh lHkh dks ekj MkykA bldk dkj.k Fkk
fd og "kjkQr cksyk Fkk fd esjk edku ?kj lc gM+i
ysxhA esjh cgu dk uktk;t laca/k dkj.k Fkk bl dkj.k
"kjkQr us lcdks ekj MkykA
English Translation
PW-32
It has been almost three years. I used to live in
Nimbahera, Housing Board. Nimbahera is near
Chittorgarh. My brother-in-law Md. Yunus, my
sister Chand Tara and my nephew and sister-in-
law Asraf and Gudiya and Shazia and Shakeena
lived with me and my sister was seven months'
pregnant. And we also lived with my sister.
Salim also had a house near our house. Salim
and my sister had an illicit relationship. Salim
[2025:RJ-JD:25617-DB] (24 of 51) [MREF-1/2022]
used to come to my house, eat food. He used to
call my sister to his house whenever he got a
chance. Whenever Salim got a chance, he used
to call my sister even at night. He used to eat
food at my house, my sister also used to go to
his house to eat food. I met Salim's son Sharafat
once, he told me to convince my sister not to
have relations with my father. So I told him to
stop his father. Then he told me that he would
kill my sister and brother-in-law. Then I told my
sister not to do this, but my sister did not listen.
When my sister did not listen, I had a fight with
her over this issue and I went to my village.
Then I came to know in the village that Salim
had died. Then after that I came to know that
my sister Chand Tara, Md. Yunus, Gudiya, Asraf,
Shazia and Shakeena had died, the police told
me over the phone. After that my mother,
Shakeela and my two brothers Kalam, Kaleem
and Haider Ali, and my sister's mother-in-law
also came from Banaras to Bhilwara Hospital.
Then after that everyone's dead bodies were
brought to the hospital. I saw them. I saw the
bodies of six people. Then I suspected that
Sharafat had killed Chand Tara, Md. Yunus,
Gudiya, Shajjo. Later I came to know that he
had killed everyone. The reason for this was that
Sharafat had said that he would usurp my house
and everything. The reason was my sister's illicit
relationship, that's why Sharafat killed
everyone."
24. The prosecution story of motive for the crime revolved
around so called illicit relationship between Salim Khan who is
father of Sharafat and Chand Tara who is wife of Md. Yunus.
[2025:RJ-JD:25617-DB] (25 of 51) [MREF-1/2022]
PW-28 Haider Ali and PW-32 Seema are the witnesses who
were examined by the prosecution to establish that Sharafat
has a doubt that Chand Tara would grab his family properties
by exercising undue influence over his father Salim Khan.
PW-28 said that he has no personal knowledge about any
animosity between his son and Sharafat. He admitted in the
cross-examination that he became aware about the dispute
between his son and Sharafat about two or two and a half
years back when Seema informed his wife about such
dispute. As to the statement of PW-32, who is the sister-in-
law of Md. Yunus, Mr. Vineet Jain, the learned senior counsel
for the convict-appellants submitted that this witness
substantially improved upon her previous statement made
before the Investigating Officer.
25. A crime can take place without premeditation or with
planning and it may happen at the spur of the moment and
therefore many a times motive may remain closeted in the
chest of accused. However, if the prosecution leads reliable
evidence on motive it significantly strengthens its case.
PW-32 had left Bhilwara about a month back and she was not
residing with the family of Md. Yunus at the time of
occurrence. Her testimony that Sharafat was apprehensive
about the intention of Chand Tara was no longer subsisting
when Md. Yunus and Chand Tara were murdered. This is the
specific case of the prosecution that Md. Yunus, Chand Tara
and their children were murdered because Sharafat thought
that Chand Tara would grab the properties of his father.
However, after Salim Khan passed away about a month back,
[2025:RJ-JD:25617-DB] (26 of 51) [MREF-1/2022]
Sharafat could not had any such apprehension. The evidence
tendered by the prosecution witnesses on motive is weak and
the defence has demonstrated that so-called motive on part
of the convict-appellants was non-existent and they have
been falsely implicated in this case. On the basis of the
materials brought on record, it is difficult to hold that the
prosecution established motive for the crime. Otherwise also
motive is a weak circumstance and, as held in "Keshav v.
State of Maharashtra"11, motive alone is not sufficient to
prove the guilt of an accused.
26. This is the case of the prosecution that around 02:50 PM
on 29th July 2015, Sharafat suffered a disclosure statement
before PW- 38 that he and Rajesh Kumar had picked up
Md. Yunus, his wife Chand Tara and their four children on the
pretext of taking them to Ajmer and committed their murder.
After committing their murder, they came back to Nimbahera
on the same Tavera and parked outside the house of
Sharafat. In this disclosure statement, Sharafat told PW- 38
that he can get Tavera recovered from that place. Around
9:15 AM on 3rd August 2015, Sharafat gave another
disclosure statement to PW- 38 while in police custody that
he can get his cloths recovered from his house at Housing
Board Colony which he was wearing at the time of committing
the murder of Md. Yunus, his wife and their four children.
27. PW-9 Arjun and PW-10 Badri affirmed in the Court that
they were present in the field from where blood-soaked soil
was collected. They deposed in the Court that exhibits P-22
11 2007 (13) SCC 284
[2025:RJ-JD:25617-DB] (27 of 51) [MREF-1/2022]
and P-23 were prepared in their presence but they were not
aware about the contents thereof. PW-11 Dilip Singh stated in
the Court that his signatures over the documents vide
exhibits P-19 and P-20 relating to recovery and seizure of
photo identity card and Aadhar Card were taken at Mandal
P.S. He further stated that no search was conducted in his
presence and he did not know Dali Bai. PW-12 Gulam Nabi
proved the packets containing hair and clothes of the
deceased person. He also proved the inquest memo and
blood-stained clothes of Sazia, Sakina, Gudiya and Ashraf.
PW-13 Jogendra Singh who was aged about 70 years
identified his signatures over exhibits P-24, P-25, P-26 and
P-27.
28. PW-9, PW-10 and PW-12 deposed in the Court in the
following manner :-
"ih MCY;w &9
vkt ls djhc lky Hkj igys dh ckr gSA lqcg 09&10
cts ge gekjs [ksr ij xk;&HkSals pjk jgs FksA ogka ij
ek.My ls iqfyl dh xkMh vkbZ FkhA ge iqfvyl dh xkM+h
ns[kdj ogka x;sA iqfylokys ogka ls feV~Vh ys jgs FksA
iqfylokyksa us gekjs lkeus ogkW feV~Vh yhA ogkW ij
fy[kki<+h dj jgs Fks rks ogkW cjlkr vkus ls ge [kM+s gks
x;sA iqfylokyksa us gekjs lkeus fy[kki<+h dh rFkk gekjs
gLrk{kj djok;sA ml le; ogkW ij cnzh Hkh FkkA esjs rFkk
cnzh ds iqfylokyksa us fy[kki<+h ij gLrk{kj djok;sA QnZ
cjkenxh LFky izn"kZ ih- 22 gS ftl ij , ls ch esjs
gLrk{kj gSaA nks dkxtksa ij gekjs gLrk{kj djok;s FksA QnZ
tIrh [kwu vkywnk izn"kZ ih- 23 gS ftl ij , ls ch esjs
gLrk{kj gSaA bl QnZ ij esjk HkkbZ cnzh Hkh ekStwn Fkk ftlus
Hkh gLrk{kj fd;s FksA
[2025:RJ-JD:25617-DB] (28 of 51) [MREF-1/2022]
English Translation
PW-9
It was about a year ago. We were grazing cows
and buffaloes in our field around 00-10 in the
morning. A police vehicle had come from Mandal.
We went there after seeing the police vehicle.
The policemen were taking soil from there. The
policewoman took soil in front of us. While they
were doing this paperwork, we stood there as it
started raining. The policewoman did the
paperwork in front of us and got our signatures.
Badri was also there at that time. My and Badri's
policemen got the papers signed. The recovery
report is exhibit P-22 on which my signatures
from A to B are there. Our signatures were taken
on two papers. The seizure report is exhibit P-23
on which my signatures from A to B are there.
My brother Badri was also present on this report
and he also signed it.
ih MCY;w &10
vkt ls djhc lky Hkj igys dh ckr gSA ge gekjs [ksr
ij lqcg xk;&HkSals pjk jgs FksA ogkW ij ek.My ds
iqfylokyksa dh xkM+h vkbZ FkhA tks xkM+h dks vkxs&ihNs dj
jgs FksA bl ij eSa rFkk esjk HkkbZ vtqZu iqfyl dh xkM+h ds
ikl x;sA iqfylokyksa us tks dkjZokbZ dh og mUgksaus gh dh
FkhA gels rks ekSds ds gLrk{kj djus ds fy;s dgk FkkA
fujh{k.k cjkenxh LFky izn"kZ ih- 22 ij lh ls Mh esjs
gLrk{kj gSaA QnZ tIrh [kwu vkywnk feV~Vh izn"kZ ih- 23 ij
lh ls Mh esjs gLrk{kj gSaA
English Translation
PW-10
It was about a year ago. We were grazing cows
and buffaloes in the morning on our farm. A
police vehicle from Mandal came there. They
[2025:RJ-JD:25617-DB] (29 of 51) [MREF-1/2022]
were moving the vehicle back and forth. So I and
my brother Arjun went to the police vehicle. The
police took whatever action they did. We were
asked to sign for me. My signatures C to D are
on the inspection recovery site exhibit P-22. My
signatures C to D are on the seizure report
blood-soaked soil exhibit P-23.
ih MCY;w 12
fnukad 29@2015 dks egkRek xka/kh fpfdRlky; esa fLFkr
phj?kj esa N% yk'ksa rst /kkjnkj gfFk;kj ls dVh gqbZ vkbZ
FkhA ogka ij esjs lkeus iqfyl us muds cky o diMs fy;s
Fks rFkk FkSfy;ksa esa iSd fd;s FksA QnZ iapk;rukek yk'k lqJh
lkft;k izn'kZ ih- 24 gS ftl ij , ls ch esjs gLrk{kj gSaA
QnZ iapk;rukek yk'k lqJh ldhuk izn'kZ ih- 25 gS ftl
ij , ls ch esjs gLrk{kj gSaA QnZ iapk;rukek yk'k v'kjQ
izn'kZ ih- 26 gS ftl fnukad 29@2015 dks egkRek xka/kh
fpfdRlky; esa fLFkr phj?kj esa N% yk'ksa rst /kkjnkj
gfFk;kj ls dVh gqbZ vkbZ FkhA ogka ij esjs lkeus iqfyl us
muds cky o diMs fy;s Fks rFkk FkSfy;ksa esa iSd fd;s FksA
QnZ iapk;rukek yk'k lqJh lkft;k izn'kZ ih- 24 gS ftl
ij , ls ch esjs gLrk{kj gSaA QnZ iapk;rukek yk'k lqJh
ldhuk izn'kZ ih- 25 gS ftl ij , ls ch esjs gLrk{kj gSaA
QnZ iapk;rukek yk'k v'kjQ izn'kZ ih- 26 gS ftl , ls
ch esjs gLrk{kj gSaA QnZ iapk;rukek yk'k xqfM;k izn'kZ ih-
27 gS ftl ij , ls ch esjs gLrk{kj gSaA QnZ tIrh [kwu
vkywnk diMs e`rd v'kjQ izn'kZ ih- 28 gS ftl ij , ls
ch esjs gLrk{kj gSA QnZ tIrh [kwu vkywnk diMs e`rdk
xqfM;k izn'kZ ih- 29 gS ftl ij , ls ch esjs gLrk{kj gSaA
QnZ tIrh [kwu vkywnk diM+s e`rd lkft;k izn'kZ ih- 30 gS
ftl ij , ls ch esjs gLrk{kj gSaA QnZ tIrh [kwu vkywnk
diMs e`rdk ldhuk izn'kZ ih- 31 gS ftl ij , ls ch esjs
gLrk{kj gSaA QnZ tIrh flj ds cky e`rd v'kjQ izn'kZ ih-
[2025:RJ-JD:25617-DB] (30 of 51) [MREF-1/2022]
32 gS ftl ij , ls ch esjs gLrk{kj gSaA QnZ tIrh flj ds
cky e`rdk xqfM;k izn'kZ ih- 33 gS ftl ij , ls ch esjs
gLrk{kj gSaA QnZ tIrh cky e`rdk ckfydk lqJh lkft;k
izn'kZ ih- 34 gS ftl ij , ls ch esjs gLrk{kj gSaA QnZ
tIrh flj ds cky e`rdk lqJh ldhuk izn'kZ ih- 35 gS
ftl ij , ls ch esjs gLrk{kj gSaA QnZ lqiqnZxh yk'k e`rd
ekSgEen ;wuql] e`rdk pkan rkjk] e`rd ckyd v'kjQ]
e`rdk lqJh lkft;k] e`rdk xqfM;k o e`rdk ldhuk izn'kZ
ih- 36 gS ftl ij , ls ch esjs gLrk{kj gSaA
English Translation
PW-12
Dead bodies cut with sharp edged weapons were
found in the square situated in Mahatma Gandhi
Hospital on 29/2015. There in front of me the
police took their hair and clothes and packed
them in bags. Fard Panchayatnarna of dead body
Ms. Sazia is exhibit P-24 on which A to B are my
signatures. Fard Panchayatnama of dead body
Ms. Sakina is exhibit P-25 on which A to B are
my signatures. Fard Panchayatnama of dead
body Ashraf is exhibit P-26 on which A to B are
my signatures. Fard Panchayatnama of dead
body Gudiya is exhibit P-27 on which A to B are
my signatures. Fard seizure of blood-stained
clothes of deceased Ashraf is exhibit P-28 on
which A to B are my signatures. The seizure of
blood-stained clothes of deceased Gudiya is
exhibit P-29, on which my signatures are A to B.
The seizure of blood-stained clothes of deceased
Sazia is exhibit P-30, on which my signatures are
A to B. The seizure of blood-stained clothes of
deceased Sakina is exhibit P-31, on which my
signatures are A to B. The seizure of hair from
the head of deceased Ashraf is exhibit P-32, on
[2025:RJ-JD:25617-DB] (31 of 51) [MREF-1/2022]
which my signatures are A to B. The seizure of
hair from the head of deceased Gudiya is exhibit
P-33, on which my signatures are A to B. The
seizure of child, deceased girl Ms. Sazia is exhibit
P- 34, on which my signatures are A to B. The
seizure of hair from the head of deceased Ms.
Sakiina is exhibit P-35, on which my signatures
are A to B. The individual delivery of dead bodies
of deceased Md. Yunus, deceased Chand Tara,
deceased child Ashraf, deceased Ms Sazia,
deceased Gudiya and deceased Sakina is exhibit
P-36 on which are my signatures from A to B."
29. The Mobile Forensic Science Unit, Bhilwara inspected the
Tavera parked at P.S. Mandal in the presence of PW-38 and
an inspection report was prepared which was signed by
Dr. Pankaj Purohit. The observations of the Mobile Forensic
Science Unit are that (i) Chevrolet Tavera bearing registration
No.RJ-27-TC-0323 was carrying a number plate on the rear
side only, (ii) suspected blood-stains were observed at
different places at the rear handle of the driver's door and
over driver seat and parts of the floor mat and found positive
for "Benzidine Test" and (iii) soil on the floor mat near
co-driver's seat and few hair on the middle row of the seats
were found. The recovery of Tavera which was found in
front of the house of Sharafat and its inspection by the
forensic expert team do not inspire confidence of the Court.
The statement made by the prosecution witnesses and PW-38
do not go well and create serious doubt on the veracity of the
prosecution evidence as to collection of blood and hair
samples. Similarly, the recovery of diary from the house of
[2025:RJ-JD:25617-DB] (32 of 51) [MREF-1/2022]
Sharafat at Municipal Colony on 30th July 2015 around 03:30
PM is not free from suspicion. It has come on record that the
distance between place of occurrence and house of Md. Yunus
was about 100 kms and there seems no reason why the
convict-appellants would take out the diary of Md. Yunus and
preserve the same with them. Blood-stained clothes of the
convict-appellants are recovered from the Housing Board
residence of Sharafat. The said house was closed and any
memo regarding seizure of lock and keys was not drawn. The
FSL reports reveal that the various articles recovered by
PW-38 contained two blood samples viz. AB and A.
30. PW-14 Ramprasad who was posted at Mandal P.S. as
Constable was accompanying the Officer-in-Charge of Mandal
P.S. to Mahatma Gandhi Hospital where post-mortem
examination over the dead body of one male and three
females was conducted. He identified his signatures on
seizure memo of Tavera vide exhibit P-38, a pocket diary vide
exhibit P-40 and another diary vide exhibit P-41. In his cross-
examination, PW-14 stated that the seizure memo vide
exhibit P-39 was prepared around 6:30 PM on 29 th July 2015.
He admitted that there was cutting over the date in exhibit
P-39 from E to F. As regards exhibit P-41, this witness stated
in the Court that it was prepared around 03:00-03:30 PM on
31st July 2015. He stated that there was heavy rain on the
day of occurrence and lot of water had accumulated at the
place of occurrence. This witness was unable to tell the Court
whether the Tavera was registered with RTO; the Tavera was
[2025:RJ-JD:25617-DB] (33 of 51) [MREF-1/2022]
lying on a road which was open place and, that, the place
was accessible to general public.
31. As noticed above, Sharafat gave a disclosure statement
around 10:15 PM on 28th July 2015. In this disclosure
statement given before PW- 38, Sharafat stated that he can
show the place where he along with Rajesh Kumar had killed
Md. Yunus and his wife Chand Tara and threw the dead bodies
in the water. His disclosure statement that "eSa ml LFkku dks pydj
fn[kk ldrk gwa tgk¡ eSaus ,oa jkts"k dqekj us ;quql ,oa lksfu;k dh gR;k dj "koksa
dks ikuh esa Mky fn;s FksA" is similar to the disclosure statement of
Rajesh Kumar recorded around 11:25 PM on the same day.
The disclosure statements given by both the convict-
appellants are strikingly similar and both contain exactly
twenty-seven words. Similarly, the disclosure statement of
Sharafat recorded at 01:25 AM on 29 th July 2015 and the
disclosure statement of Rajesh Kumar recorded at 2:00 AM
on the same day regarding the information where dead
bodies of Asraf, Gudiya, Sazia and Sakina were thrown both
are identical versions.
32. Section 27 of the Indian Evidence Act provides that
statement the statement of an accused whether it amounts to
a confession or not is admissible in evidence provided such
statement relates distinctly to the fact discovered in
consequence of the information provided by the accused
while in custody. This provision is based on the doctrine of
confirmation that if any fact is discovered on the strength of
any information from the accused such discovery is a
guarantee that the information supplied by the prisoner was
[2025:RJ-JD:25617-DB] (34 of 51) [MREF-1/2022]
true when such evidence is taken by complying with other
requirements in law then the Court shall permit the police to
prove so much of the information received from a person
accused of any offence in the custody of a police Officer
which relates distinctly to the discovery of a fact in "Suresh
Chandra Bahari v. State of Bihar"12, the Hon'ble Supreme
Court observed as under paragraph no.71:-
"71. The two essential requirements for the
application of Section 27 of the Evidence Act are
that (1) the person giving information must be
an accused of any offence and (2) he must also
be in police custody. In the present case it
cannot be disputed that although these essential
requirements existed on the date when
Gurbachan Singh led PW-59 and others to the
hillock where according to him he had thrown
the dead body of Urshia but instead of the dead
body the articles by which her body was wrapped
were found. The provisions of Section 27 of the
Evidence Act are based on the view that if a fact
is actually discovered in consequence of
information given, some guarantee is afforded
thereby that the information was true and
consequently the said information can safely be
allowed to be given in evidence because if such
an information is further fortified and confirmed
by the discovery of articles or the instrument of
crime and which leads to the belief that the
information about the confession made as to the
articles of crime cannot be false. In the present
case as discussed above the confessional
statement of the disclosure made by the
appellant Gurbachan Singh is confirmed by the
12 1995 Supp. (1) SCC 80
[2025:RJ-JD:25617-DB] (35 of 51) [MREF-1/2022]
recovery of the incriminating articles as said
above and, therefore, there is reason to believe
that the disclosure statement was true and the
evidence led in that behalf is also worthy of
credence."
33. The provisions under section 27 of the Evidence Act are
in essence a proviso to sections 25 and 26 under which a
complete ban on admissibility of any confession made by an
accused either to the police or to any one while the accused
is in police custody has been imposed. Section 27 permits a
portion of the statement of an accused made to a police
officer to be proved and thus making that portion of the
statement of an accused admissible in evidence. However,
before a portion of the statement of an accused made to a
police officer while in custody is admitted in evidence his
statement must distinctly relate to discovery of a fact. It is a
settled law that recovery of an incriminating article or even
production of such article(s) by itself may not necessarily
result in discovery of a fact. In "Pulukuri Kottaya v.
Emperor"13, speaking for the Privy Council, Sir John
Beaumont has said that; "it is fallacious to treat the 'fact
discovered' within the section as equivalent to the object
produced". In "Pandurang Kalu Patil & Anr. v. State of
Maharashtra"14, the Hon'ble Supreme Court observed that:
"No doubt in a given case an object could also be a fact, but
discovery of a fact cannot be equated with recovery of the
object though the latter may help in the final shape of what
exactly was the fact discovered pursuant to the information
13 AIR 1947 PC 67
14 2002 (2) SCC 490
[2025:RJ-JD:25617-DB] (36 of 51) [MREF-1/2022]
elicited from the accused". The issue that falls for
consideration in this case is admissibility of the confessional
statement of the appellants. In "Rex v. Warickshall"15, it was
ruled that; "a confession forced from the mind by the flattery
of hope, or by the torture of fear, comes in so questionable a
shape, that it is to be considered as the evidence of guilt,
that no credit ought to be given to it". In "Pulkuri Kottaya v.
Emperor"16, the Privy Council observed that discovery of a
fact in consequence of the information received from a person
accused of any offence in the custody of a police officer must
be deposed to, and thereupon so much of the information
leading to discovery of fact may be proved.
34. Mr. Vineet Jain, the learned senior counsel appearing for
the convict-appellants referred to the cross-examination of
PW-14 wherein he stated that he had gone to the house of
Sharafat at Municipality Employees Colony around 03:00-
03:30 PM to fetch the keys of the car. At that time, Mukund
Singh, Munir Ji and Sabir Diwan were also with him. He
further stated that when they went inside the house of
Sharafat he found the mother, wife and sister of Sharafat
present in the house. He admitted in the Court that no
seizure memo was prepared when the key of Tavera was
brought from the house of Sharafat. PW-17 is the seizure
witness who identified his signature over exhibits P-38 and
P-39 which are relating to seizure of the Tavera. In the
cross-examination, PW-17 admitted that the said vehicle was
parked at Mandal P.S. He did not find any blood-stains inside
15 1783 (1) Leach 263
16 AIR 1947 PC 67
[2025:RJ-JD:25617-DB] (37 of 51) [MREF-1/2022]
the car. He further stated that he was asked to sign the
papers on a pretext that the vehicle had met with an
accident. PW-21 Sabir Mohammad was posted at Mandal P.S.
as Head Constable. He stated in the Court that the FSL
Officer Pankaj Kumar had inspected the car from inside and
found blood-stains at several places. This witness further
stated that the FSL Officer had prepared samples. PW-21
identified his signatures over exhibits P-45, P-46, P-47, P-48
and P-49. He stated that the sword was wrapped in a
newspaper and there were blood-stains at some parts of the
sword. This witness was not able to recollect whether the
room in which the cooler was lying was locked or not.
35. PW-38 affirmed that no witness had spoken before
13th July 2015 about complicity of the accused persons in the
crime nor had he found a clue in any document. He further
admitted that he found the accused persons guilty on the
basis of their disclosure statements and recovery of dead
bodies of four children at their instance. PW-38 has, however,
also stated that Haider Ali had informed him about complicity
of the accused persons in the crime before he arrested him.
The accused persons admitted their involvement in the crime
before they were arrested in the case. He reached at the
house of Salim at Municipality Employees Colony at 6:15 PM
on 28th April 2015. He headed to Municipality Employees
Colony immediately after conducting inquiry in the house of
Salim at New Housing Board Colony. He left this place around
6:30 PM-6:45 PM and went to the police station with Sharafat
and Rajesh Kumar. He produced them in the Court after
[2025:RJ-JD:25617-DB] (38 of 51) [MREF-1/2022]
lunch on 29th July 2015. After preparing seizure memo of
Tavera vide exhibit-P 37, PW-38 started for Nimbahera and
reached there by 6:00 PM He also admitted that Tavera was
lying in open space on a road and it was locked. The house
was open and Sharafat had himself gone in his room and
brought the keys. At that time, the mother, wife and three
sisters of Sharafat were present in the house. He had gone
inside the house with Sharafat and his room was not locked.
He did not enter the room of Sharafat and thus did not know
where the keys were lying in the room. He did not prepare
the seizure memo and the keys were not deposited in
malkhana. He further stated that he deposited the keys in
malkhana after conducting inspection of the vehicle. Exhibit
P-52A did not contain any entry regarding date and time
when the vehicle and keys were deposited in malkhana. He
offered an explanation for overriding and stated that he had
attempted twice as the pain was not working. He further
admitted that he did not conduct inspection of the car for
presence of the accused persons and exhibit P-45 was not
signed by the accused persons. There was no signature of
Dr. Pankaj Purohit on exhibit P-45. He started for house No.9
at Municipality Employees Colony, Nimbahera on 31 st July
2015 to recover the pocket diary from the said house of
Sharfat. Exhibit P-47, the house number and address of
Sharafat are not recorded in any of the documents prepared
by him.
36. In the trial, the prosecution tendered circumstantial
evidence to prove the charge under sections 364, 302 and
[2025:RJ-JD:25617-DB] (39 of 51) [MREF-1/2022]
201 read with section 34 of the Indian Penal Code against the
appellants. In a long line of judgments, the Hon'ble Supreme
Court held that conviction can be recorded on the basis of
circumstantial evidence but great care must be taken in
evaluating the evidence in a case based on circumstantial
evidence. In "Sharad Birdhichand Sarda v. State of
Maharashtra"17, the Hon'ble Supreme Court has held that in a
case based on circumstantial evidence the prosecution must
prove that: (i) the circumstances from which conclusion of
the guilt is to be drawn are fully established, (ii) the
circumstances are of a conclusive nature and tendency, (iii)
the facts so established are consistent only with the
hypothesis of guilt of the accused, (iv) every possible
hypothesis of innocence of the accused is completely
excluded, and (v) the chain of circumstances is so complete
that it does not leave any reasonable ground for a conclusion
consistent with innocence of the accused. In "Sukhram v.
State of Maharashtra"18, the Hon'ble Supreme Court has held
that the circumstances from which the conclusion of guilt is to
be drawn have not only to be fully established but all the
circumstances so established should be of conclusive nature
and consistent with the hypothesis of the guilt of the accused.
37. PW-29 Shailender, PW-30 Tehsildar and PW-35 Hitesh
are the witnesses who were produced in the trial to establish
that Md. Yunus, Chand Tara and their four children were last
seen alive in the company of Sharafat and Rajesh Kumar. As
we have seen, PW-29 and PW-30 did not support the
17 1984 (4) SCC 116
18 2007 (7) SCC 502
[2025:RJ-JD:25617-DB] (40 of 51) [MREF-1/2022]
prosecution story and they were declared hostile at the
instance of the prosecution. The trial Judge permitted the
prosecution to cross-examine them but nothing material and
significance could be elicited from them and their testimony is
not at all relevant for the prosecution to support the charge
against the convict-appellants. PW-35 Hitesh deposed in the
Court that a white Tavera coming from Chittorgarh and
heading towards Jaipur crossed the Toll Plaza around
01:22 AM in the intervening night of 27/28 of July 2015. The
said vehicle passed through booth no.2 and was heading
towards Jaipur. According to PW-35, there were 2-3 male,
one female and 2-3 children travelling in the said Tavera. He
further deposed that he provided a transaction sheet and the
video clip in a pen drive to the Investigating Officer. While no
document could be produced by the prosecution to establish
that PW-35 was working at the Toll Plaza as a manager and
whether he had any fixed duty hours, the prosecution failed
to produce the said video clip in the trial. Murarilal who is said
to have shown the video clip to PW-38 and provided the said
video clip in a pen drive was not examined during the trial.
There was no material to show that the same Tavera came
back and crossed the Toll Plaza coming from Jaipur. Looking
at the testimony of PW-35 as a whole, it is not established
that he had seen the occupants of the said Tavera. In our
opinion, there is absolutely no material to establish that
Md. Yunus, Chand Tara and their children were travelling in
the fateful night on the seized Tavera.
[2025:RJ-JD:25617-DB] (41 of 51) [MREF-1/2022]
38. PW-29 Shailendra is a person who was working at Jojro
Ka Khera Toll Plaza. He stated in the Court that his duty
period span over eight hours and he had no recollection about
his duty hours on the date of the occurrence because it had
happened about two years ago. He seems to have resiled
from his statement before the police and stated in his
examination-in-chief that he was not aware about any Tavera
passing through Toll Plaza on the day of the occurrence.
Therefore, this witness was declared hostile at the instance of
the Additional Public Prosecutor and permission to cross-
examine him was granted by the Court. But in the cross-
examination also PW-29 flatly refused that the police had
taken statement from him or that the police had made any
inquiry from him. PW-29 has stated thus :-
"ihMCY;w&29
djhcu nks lky igys dh ckr gSA eSa Vksy dEiuh esa dke
djrk FkkA tkstjksa dk [ksM+k Vksy ukds ij dke djrk FkkA esjh
M~;wVh o VkWy ij dke djus okyksa dh M~;wVh vkB&vkB ?kaVs dh
gksdj rhu lhQ~V esa pyrh FkhA ml fnu esjh M~;wVh fdrus
cts ls fdrus cts dh FkhA ;g eq>s vkt ;kn ugha gS D;ksafd ?
kVuk nks lky igys dh gSA ml fnu ekSle lknk Fkk ckfj"k
ugha vk jgh FkhA ml fnu xkfM+;k Vksy ls fudy jgh FkhA esjs
ikl ,slh dksbZ tkudkjh ugha gS xkM+h ds laca/k esaA esjh
tkudkjh esa ugha fd ml fnu dksbZ Vosjk xkM+h fudyh gksA
English Translation
PW-29
It was about two years ago. I used to work in a toll
company. I used to work at the Jojron ka Kheda toll
post. My duty and the duty of the people working at
the toll post used to be of eight hours each and were
[2025:RJ-JD:25617-DB] (42 of 51) [MREF-1/2022]
in three shifts. I don't remember from what time to
what time my duty was that day because the
incident happened two years ago. The weather was
clear that day and it was not raining. That day
vehicles were passing through the toll. I don't have
any such information regarding the vehicle. I am not
aware that any Tavera passed through that day."
39. PW-30 is another witness who was working at Gangarar
Toll Plaza at Jojrao ka Khera. PW-30 denied that any Tavera
had passed through Toll Plaza on the day of occurrence. As
PW-35, Hitesh Kumar Singh who was the Manager at the Toll
Plaza deposed in the Court that he provided video recording
clips at the Toll Plaza to the police. According to this witness,
the video recording at about 01:22 AM in the intervening
night of 27th/28th July 2015 showed that a white Tavera
coming from Chittor and heading towards Jaipur had passed
through booth no.2. According to PW-35, there were 2-3 men
and a woman along with 2-3 children travelling in the said
vehicle. He had provided a copy of the transaction sheet (vide
exhibit P-64) and video clip in a pen drive. PW-30 in his
examination-in-chief stated thus :-
"ihMCY;w 30
lu~ 2015 esa eSa Vksy Iyktk xaxjkj esa ukSdjh dj jgk FkkA Vksy
ukdk tkstjksa dk [ksM+k esa gSA esjh ukSdjh esa vkB ?kaVs izfr fnu
dh M~;wVh gksrh FkhA ml fnu esjh fdl cwFk ua- ij M~;wVh
Fkh ;g eq>s ugha ekyweA HkhyokM+k ls fpRRkkSMx<+ tkus okys
okguksa ds Vksy dkVus cwFk ij eSa cSBrk FkkA esjs vkB ?kaVs dh
M~;wVh ds oDr cgqr lh xkfM+;ka Vksy ls fudyrh FkhA tks
xkfM+;k vkrh Fkh mudk Vksy dkVrk Fkk] tks fjVuZ xkM+h gksrh
Fkh mudh eSa iphZ pSd djrk FkkA xkfM+;ka lHkh rjg dh
fudyrh Fkh tSls dkj vkSj vU;] eSa xkfM+;ksa dk uke ugha crk
[2025:RJ-JD:25617-DB] (43 of 51) [MREF-1/2022]
ldrkA ?kVuk okys fnu] fnu esa iqfyl okysa eq>ls iwNrkN
djus vk;s fd dksbZ xkM+h fudyh D;k rks eSus dgk fd eq>s ugha
ekyqe dbZ xkfM+;ka fudyrh gSA fQj iqfylokyksa us dEI;wVj pSd
fd;k rks jkr dks xkM+h fudyh mldk fjVuZ jkr dks <kbZ&rhu
cts ds yxHkx dk fjVuZ vk;kA fjVuZ dk iSlk fdruk Fkk ;g
eq>s vkt ;kn ughaA iqfyl us esjs cwFk ds dEI;wVj dks pSd ugha
fd;k mlus vkWfQl ds dEI;wVj dks pSd fd;k FkkA ?kVuk okys
fnu Vosjk xkM+h ugha fudyhA vt[kqn dgk fd eq>s ;kn ugha
fd ?kVuk okys fnu Vosjk xkM+h fudyh vFkok ughaA
English Translation
PW-30
In 2015, I was working at Gangarar Toll Plaza. The
toll booth is in Jojaron Ka Kheda. I had to work for
eight hours a day. I don't know which booth number
I was on duty at that day. I used to sit at the booth
to collect toll for vehicles going from Bhilwara to
Chittorgarh. During my eight-hour duty, many
vehicles passed through the toll. I used to collect toll
for the vehicles that came and I used to check the
slips of the return vehicles. All kinds of vehicles
passed through, like cars and others. I cannot tell
the names of the vehicles. On the day of the
incident, the police came to question me whether any
vehicle passed through, I said that I don't know,
many vehicles pass through. Then the police checked
the computer and the return of the vehicle that
passed through at night came at around 2:30-3:00 in
the night. I don't remember today how much the
return amount was. The police did not check the
computer of my booth, they checked the computer of
the office. The Tavera did not pass through on the
day of the incident. Ajkhud said that I do not
remember whether the Tavera came out on the day
of the incident or not.
[2025:RJ-JD:25617-DB] (44 of 51) [MREF-1/2022]
ih MCY;w &35
eSa lu 2015 esa tkstjks dk [ksM+k] rglhy xaxjkj] ftyk
fprkSMx< esa VkWy Iyktk ij izca/kd FkkA 10 vxLr] 2015 dks
"kke ds djhc 08 cts iqfyl okys vk;s Fks] mUgksaus crk;k
fd ,d eMZj gqvk gS vkSj vkids ;gka ls 27 tqykbZ 2015
dks ,d lQsn jax dh Vosjk fudyh gS bl ij geus iqfylokyksa
dks VkWy ukds dh ohfM;ks Dyhi fn[kk;hA ohfM;ks Dyhi esa ik;k
x;k fd 27@07@2015 o 28@07@2015 dks e/; jkf= ds ckn
01%22 feuV ij ,d lQsn Vosjk xkM+h fpRrkSM+ lkbM ls t;iqj
lkbZM esa fudyh Fkh] tks fd cwFk ua- 02 ls fudyh FkhA ml
xkM+h esa nks&rhu vkneh] ,d efgyk o nks&rhu cPps cSBs gq,
FksA bUgksaus tkus&vkus dh fVdV dVk;h FkhA iqfyl okyksa us
gels lk{; ekaxk rks geus VªkaltsD"ku lhV dh dkWih Fkh] ,d
isu Mªkbo esa ohfM;ks dh Dyhi nhA tks VªkaltsD"ku lhV izn"kZ
ih 64 gS ftl ij , ls ch esjs gLrk{kj gSa] ,Dl LFkku mDr
Vosjk xkMh dh fVdV ua- dh vkbZMh gS ftlls xkM+h fudyus dk
eSp gksrk gSA
English Translation
PW-35
In 2015, I was the manager at the Toll Plaza in
Jojaro ka Kheda, Tehsil Gagarar, District Chittorgarh.
On 10 August 2015, at around 8 pm, the police came
to us. They told us that a murder has taken place
and a white Tavera passed through our place on 27
July 2015. On this, we showed the video clip of the
Toll Plaza to the police. It was found in the video clip
that on 27/07/2015 and 28/07/2015, at 01:22 after
midnight, a white Tavera passed through Chittor side
to Jaipur side, which had passed through booth no.
02. Two-three men, a woman and two-three children
were sitting in that car. They had bought tickets for
going and coming. When the police asked us for
evidence, we gave them a copy of the transaction
[2025:RJ-JD:25617-DB] (45 of 51) [MREF-1/2022]
sheet and a video clip in a pen drive. The transaction
sheet is exhibit P-64 on which my signatures are
from A to B, the X place is the ticket ID of the said
Tavera which matches with the departure of the car."
40. The importance of last-seen-together evidence cannot
be over emphasized in a criminal trial as this by itself is not
sufficient to record conviction of an accused. It is quite a
settled proposition in a law that before onus shifts on the
accused by operation of section 106 of the Evidence Act it
must be held that the prosecution has established a prima-
facie case against the accused. In "Bodhraj @ Bodha v. State
of Jammu and Kashmir"19, the Supreme Court explained the
law on last-seen-together, thus :-
"31. The last-seen theory comes into play where the
time-gap between the point of time when the
accused and the deceased were last seen alive and
when the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen with the
accused when there is a long gap and possibility of
other persons coming in between exists. In the
absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases....."
41. In "Rajender @ Rajesh @ Raju v. State (NCT of
Delhi)"20, the Hon'ble Supreme Court has observed as
under :-
19 (2002) 8 SCC 45
20 2019 (10) SCC 623
[2025:RJ-JD:25617-DB] (46 of 51) [MREF-1/2022]
"12.2.4. ....... Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and
when he parted company with the deceased. In other
words, he must furnish an explanation that appears to
the court to be probable and satisfactory, and if he fails
to offer such an explanation on the basis of facts within
his special knowledge, the burden cast upon him under
Section 106 is not discharged. Particularly in cases
resting on circumstantial evidence, if the accused fails
to offer a reasonable explanation in discharge of the
burden placed on him, such failure by itself can provide
an additional link in the chain of circumstances proved
against him. This, however, does not mean that
Section 106 shifts the burden of proof of a criminal trial
on the accused. Such burden always rests on the
prosecution. Section 106 only lays down the rule that
when the accused does not throw any light upon facts
which are specially within his/her knowledge and which
cannot support any theory or hypothesis compatible
with his innocence, the court can consider his failure to
adduce an explanation as an additional link which
completes the chain of incriminating circumstances."
42. Like in every criminal trial, to prove the charge under
sections 364, 302 and 201 read with section 34 of the
Indian Penal Code the prosecution must lead cogent and
consistent evidence establishing complicity of the
appellants in the occurrence. This must always be kept in
mind what has been observed by the Hon'ble Supreme
Court in "Shambu Nath Mehra v. State of Ajmer" 21, that
section 106 of the Evidence Act cannot be used to
21 AIR 1956 SC 404
[2025:RJ-JD:25617-DB] (47 of 51) [MREF-1/2022]
undermine the well established rule of law that, save in a
very exceptional class of cases, the burden is on the
prosecution and never shifts. A person who is facing a
charge of murder may be a close relative, friend, co-worker
or co-villager of the deceased and there may be
circumstances, purely casual or accidental, in which both
have been seen together. For example, a person is seen
with a friend/co-worker/ co-villager in a market place, fair,
movie show, or at the Airport or Railway Station and this
may be just a coincidence and chance meeting, but, that by
itself would not become an incriminating circumstance so as
to fuel the last-seen-together theory. Therefore, as a
general rule in every case an inference on complicity of the
accused cannot be raised by invoking section 106 of the
Evidence Act. The provisions of section 106 of the Evidence
Act are very clear and do not admit any ambiguity. It
clearly lays down that when any fact is especially within the
knowledge of the person, the burden of proving that fact is
upon him. Therefore, it must be first shown that the facts
are pre-dominantly and without exception within the
knowledge of the accused still he has failed to furnish an
explanation which is probable and satisfactory. In "Babu v.
State of Kerala"22, the Hon'ble Supreme Court has held that
a Court must be on guard to see that the application of
presumption in a case does not result in any injustice or
mistaken conviction. This is a cardinal principle that the
weight of evidence is to be considered and not the number
22 2010 (9) SCC 189
[2025:RJ-JD:25617-DB] (48 of 51) [MREF-1/2022]
of witnesses. A presumption in law does not mean that the
Court cannot look into the special features of the case, such
as, patent absurdity, inherent infirmity or improbability in
the prosecution case. Having regard to the materials
produced by the prosecution against Sharafat and Rajesh
Kumar, we have no hesitation at all to record that the
prosecution miserable failed to establish that Md. Yunus, his
wife and four children were last-seen alive in the company
these convict-appellants.
43. Sharafat and Rajesh Kumar were charged under
sections 364, 302 and 201 of the Indian Penal Code with
the aid of section 34 of the Indian Penal Code. A common
intention which necessarily implies a pre-arranged concert
must be distinguished from same or similar intention. The
law on the subject was authoritatively decided by the Privy
Council in "Barendra Kumar Ghosh v. King Emperor"23. In
that case, the argument was that: in section 34 a criminal
act in so far as murder is concerned means an act which
takes life criminally within section 302 because the section
concludes by saying is liable for that act in the same
manner as if the act were done by himself alone. It was
argued that where each of several persons does something
criminal, all acting in furtherance of a common intention,
each is punishable for what he has done, as if he had done
it by himself. Lord Sumner captured the appellant's
argument in an illustration, thus; "if three assailants
simultaneously fire at their victim and lodge three bullets in
23. 1924 SCC OnLine PC 49
[2025:RJ-JD:25617-DB] (49 of 51) [MREF-1/2022]
his brain, all may be murderers, but, if one bullet only
grazes his ear, one of them is not a murderer and, each
being entitled to the benefit of the doubt, all must be
acquitted of murder, unless the evidence inclines in favour
of the marksmanship of two or of one". Speaking for the
Board, Lord Sumner concluded that: Even if the appellant
did nothing as he stood outside the door, it is to be
remembered that in crimes as in other things "they also
serve who only stand and wait". This is also quite well
settled that merely because it is shown that all the accused
persons carried the same intention but independently of
each other it is not enough to attract application of section
34 IPC (refer, "Pandurang v. State of Hyderabad"24). In
"Bharwad Mepa Dana & Anr. v. The State of Bombay" 25
the Hon'ble Supreme Court observed that the principle
which section 34 of the Indian Penal Code embodies is
participation in action with the common intention of
committing a crime and once such participation is
established section 34 of the Indian Penal Code is at once
attracted. There is no iota of evidence to establish that
Rajesh Kumar had any motive or reason to join hands with
Sharafat to commit murder of six persons. The
prosecution has completely failed to establish that
Sharafat and Rajesh Kumar shared common intention to
abduct Md. Yunus, Chand Tara and their four children, to
kill them and cause disappearance of their dead bodies.
24. AIR 1955 SC 216
25. AIR 1960 SC 289
[2025:RJ-JD:25617-DB] (50 of 51) [MREF-1/2022]
44. In summation, the prosecution evidence is
completely hazy and testimony of the prosecution
witnesses creates serious doubt on their credibility and
veracity of the prosecution case against the convict-
appellants. The Investigating Officer made serious
mistakes in course of the investigation and such lapses on
his part left yawning gaps in connecting the convict-
appellants with the crime. It was the duty of the trial
Judge to record specific findings on each incriminating
circumstance whether or not that particular circumstance
was established beyond reasonable doubt. The trial Judge
failed to adopt the proper tests and extended unwarranted
benefits to discrepant statements of the prosecution
witnesses. Furthermore, the trial Judge did not focus on
the basic rules of evidence and over-looked the serious
lacuna in the prosecution case. In the end, we would close
these discussions by observing that the judgment of
conviction against Sharafat and Rajesh Kumar rendered by
the Additional Sessions Judge in Sessions Case
No.12/2015 (35/2021) is based on assumptions and
presumptions which could not have been raised in law and
therefore warrants interference by this Court.
45. Based on the aforesaid discussions, we conclude
that the prosecution failed to establish the charge of
abduction and murder framed against the convict-
appellants and therefore their conviction under sections
364, 302 and 201 read with section 34 of the
Indian Penal Code and the order of sentence passed
[2025:RJ-JD:25617-DB] (51 of 51) [MREF-1/2022]
thereon are set aside. Consequently, Sharafat son of Salim Khan
and Rajesh Kumar son of Ratan Lal are acquitted of the charges
framed against them in Sessions Case No.12/2015 (35/2021).
46. In the result, D.B. Criminal Appeal No126/2022 succeeds and
thus allowed and D. B. Murder Reference No.01/2022 is dismissed.
We therefore direct that Sharafat son of Salim Khan and Rajesh
Kumar son of Ratan Lal who are in jail custody shall be released
forthwith if not wanted in connection to any other criminal case.
(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J
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