Rajasthan High Court - Jodhpur
State vs Aarif Mohammed And Ors ... on 13 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:22999-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 159/1998
State of Rajasthan
----Appellant
Versus
1. Aarif Mohammed S/o Kasam Panwar
2. Saddik Mohammed S/o Haji Ahmed Hussain @ Pannji
3. Mahboob S/o Kasam Panwar
4. Smt. Bano W/o Mahboob
5. Smt. Ruksana W/o Mainuddin
6. Mainuddin S/o Kasam
(All are R/o Ladnun, P.S. Ladnun, District Nagaur)
----Respondents
For Appellant(s) : Mr. Rajesh Bhati, PP
For Respondent(s) : Ms. Shivangi Pathak, Amicus Curiae
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
13/05/2025
1. This criminal appeal under Section 378(iii)(i) Cr.P.C. has been
preferred by the appellant-State claiming the following relief:
"It is, therefore, humbly prayed that this leave to
appeal may kindly be accepted.
It is further prayed that appeal filed by the appellant
may kindly be allowed, acquittal order passed by the
learned Additional District & Sessions Judge, Nagaur (Camp
Didwana) may kindly be quashed and set aside and the
accused-respondent may kindly be convicted and sentenced
in accordance with law."
2. The appellant-State laid a challenge to the judgment of
acquittal dated 09.08.1997 passed by learned Additional District
and Sessions Judge, Nagaur Camp Didwana in Sessions Case
[2025:RJ-JD:22999-DB] (2 of 13) [CRLA-159/1998]
No.14/96, whereby the accused respondents were acquitted of the
offences under Sections 302 and 201 of IPC.
3. The matter pertains to an incident which had occurred in the
year 1996 and the present appeal has been pending since the year
1998.
4. Brief facts of the case, as placed before this Court by
learned Public Prosecutor appearing on behalf of the appellant-
State, are that on 25.02.1996 at about 8:30 AM a written report
was lodged at Police Station Ladnun by the complainant
Moolchand (PW-5), wherein it was mentioned that at about 8:00
AM, when he went for defecation at the railway station, he found
that a body was lying at the spot.
5. On the basis of the aforementioned information, an FIR was
registered and the investigation commenced accordingly. After
investigation, the police filed the charge-sheet under Sections 302
and 201 IPC against the accused persons, and the trial
commenced accordingly.
6. During the course of trial, the evidence of 19 prosecution
witnesses were recorded, 52 documents were exhibited on behalf
of the prosecution and statements of four prime prosecution
witnesses were recorded under Section 161 Cr.P.C.; whereafter,
the accused-respondents were examined under Section 313
Cr.P.C., in which the accused-respondents pleaded innocence and
their false implication in the criminal case in question.
7. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, acquitted the accused-respondents, vide
[2025:RJ-JD:22999-DB] (3 of 13) [CRLA-159/1998]
the impugned judgment of acquittal dated 09.08.1997, against
which the present appeal has been preferred on behalf of the
appellant-State.
8. Mr. Rajesh Bhati, learned Public Prosecutor submits that
deceased Mohd. Sarif was murdered by the accused Aarif Mohd.
and Saddik Mohd. He submits that the prosecution's factual matrix
was well determined, which began with the deposition of PW-12
Jannat (mother of the deceased), who clearly stated that at about
8:00 PM, when her son returned from Anwar Cycles, he was called
by Aarif Mohd. and Saddik Mohd., who were standing outside on
cycles and three of them set on the cycle and went away but her
son did not return and, this establish the last seen theory. He also
submits that in the cross examination of PW-12, the direction of
going and other details of the evening were well charted.
8.1. Learned Public Prosecutor has taken this Court to the
statement of PW-15 Daulat (sister of the deceased), who
reiterated the same story except the fact that when the deceased
Mohd. Sarif was taken by Aarif Mohd. and Saddik Mohd., it was
the day light, whereas the mother of the deceased (PW-12) said
the incident to have taken place at about 8:00 PM. He has further
taken this Court to the statement of PW-13 Dr. Rajkumar Saraf,
who supported the postmortem report and established the cause
of death being the knife injury. He has also taken this Court to the
statement of PW-11 Mohd. Farukh, who was the owner of cycle
shop and had given cycle on rent to the accused Aarif Mohd., he
deposed that the cycle was taken at 7:30 PM and have been
deposited back at 8:40 PM.
[2025:RJ-JD:22999-DB] (4 of 13) [CRLA-159/1998]
8.2. Learned Public Prosecutor has taken this Court to the
statement of PW-7 Roshan, who is the witness for seizure of
various articles and particularly, the knife, which was recovered at
the instance of accused Saddik Mohd. and Aarif Mohd. from the
open field of Santosh and Tarachand Begani. However, learned
Public Prosecutor could not point out any motive for the said crime
and also could not show anything which could directly connect the
chain of circumstantial evidence with the crime in question, except
for the last seen evidence and recovery part.
9. On the other hand, Ms. Shivangi Pathak, who has been
appointed as Amicus Curiae to assist the Court on behalf of the
accused-respondents, vide order dated 23.04.2025, while
opposing the submissions made on behalf of the appellant-State,
submits that there are grave discrepancies in the statements of
PW-12 (mother of the deceased) and PW-15 (sister of the
deceased) and the timing itself has gone wrong as the sister of
the deceased stated that the last seen was at the day light
whereas mother of the deceased stated that the last seen was at
around 8:00 PM.
9.1. Learned counsel further submits that the fact of missing
person report not having been lodged by the family members of
the deceased creates question mark on the last seen evidence.
She further submits that there is no eye witness of the incident
and recovery of the knife itself was from an open field. She
submits that learned trial court has rightly dealt with the
recoveries, though she submits that PW-5 Moolchand
(complainant) supported the recovery of knife from the site
[2025:RJ-JD:22999-DB] (5 of 13) [CRLA-159/1998]
whereas, PW-7 Roshan and PW-14 Mohd. Yakub, in their
deposition have said that the recovery of the knife was made from
the open field of private persons.
9.2. Learned counsel submits that initiation of the case at the
instance of PW-5 Moolchand was on the premise that the body
was recovered and the knife was lying near the dead body,
whereas PW-7 Roshan categorically stated that the recovery of the
knife was from the field of Santosh and Tarachand Begani. She
further submits that without connecting evidence and there being
discrepancies and contradictions in the evidence of material
witnesses, the learned trial court has rightly arrived at the
conclusion of acquittal.
10. Heard learned counsel for the parties as well as perused the
record of the case.
11. This Court observes that the present matter pertains to an
incident which occurred in the year 1996, wherein an information
regarding a body of one Mohd. Sharif found at the railway station,
was given by Moolchand PW.5, on the basis of which an FIR was
registered and investigation commenced, whereupon a charge-
sheet under Sections 302 and 201 IPC and the trial ensued. The
learned Trial Court, however, acquitted all the accused-
respondents vide the impugned judgment, which is under
challenge in the present appeal preferred by the appellant-State.
12. This Court further observes that the prosecution case hinges
on the testimonies of PW-12 Jannat (mother of the deceased) and
PW-15 Daulat (sister of the deceased), the last seen witnesses,
who deposed a common story of the deceased being called by
[2025:RJ-JD:22999-DB] (6 of 13) [CRLA-159/1998]
accused Aarif Mohd. and Saddik Mohd. in the evening of
24.02.1996 and that later he was taken by them on a bicycle. This
Court after minutely perusing the testimonies of the two vital
witnesses, observes the presence of various contradictions, some
of which are as follows:
(i) Both PW.12 and PW.15 deposed that they got to know about
the murder of Mohd. Sarif on 25.02.1996 in the early morning
hours, and that they got to know the accused Aarif Mohd. and
Saddik Mohd. murdered the deceased, despite this knowledge
they failed to mention the names of the accused-respondents in
their statements under Section 161 Cr.P.C. recorded on
26.02.1996;
(ii) Ex.D.1 and Ex.D.2, statements recorded under Section 161
Cr.P.C. of PW. 12 and PW.15, when read conjointly, depicts that the
accused-respondent Aarif Mohd. came to the house of the
deceased from the southern direction and took the deceased with
him on the bicycle towards the Teli Road and that the accused-
respondent Saddik Mohd. followed them, meaning thereby they
both came separately. However, both PW.12 and PW.15 denied the
earlier statements and on the contrary stated that both the
accused-respondents Aarif Mohd. and Saddik Mohd. came
together to the house of the deceased and called the deceased in
front of them, whereupon the deceased accompanied the accused-
respondents on their bicycle and went towards the Station Road.
(iii) PW.12 in her cross-examination stated that when the
deceased left with the accused-respondents, it was around 8:00
PM and that it was already dark; contradicting PW.12, PW.15 in
[2025:RJ-JD:22999-DB] (7 of 13) [CRLA-159/1998]
her cross-examination deposed that when Saddik came to the
house of the deceased, there was daylight.
12.1. This Court notes that in the presence of aforesaid
discrepancies in the testimonies of PW.12 and PW.15 and the
absence of lodging an FIR despite having the knowledge of the
death of Mohd. Sharif at the hands of the accused- respondents,
the prosecution has failed to prove their case beyond the fact that
the deceased was last seen with the accused-respondents Aarif
Mohd. and Saddik Mohd.
13. This Court finds that the learned Trial Court has dealt with
the recoveries and the crucial recovery of the knife itself has fallen
in the shadow of the contradictory stands being taken by PW-5
Moolchand and PW-7 Roshan. This Court further observes certain
discrepancies, namely:
(i) Moolchand PW.5, the informant, stated that the 'knife', the
alleged weapon used in committing the crime in question, was
lying near the dead body, which contradicts with the testimony of
Roshan PW.7 and Mohd. Yakub PW.14, who stated the recovery of
the knife from the field of Santosh and Tarachand Begani.
(ii) PW.7 made no deposition with respect to excavation of the
knife before its recovery, on the other hand PW.14 deposed that
the recovery was made at the instance of accused-respondents
Aarif Mohd and Saddik Mohd. who excavated the knife in question.
13.1. This Court further observes, with respect to the recovery of
the bicycle rented by accused-respondent Aarif Mohd., while
considering the testimony of Mohd. Farukh PW.11 and the register
furnished by him containing the entries, that the said register
[2025:RJ-JD:22999-DB] (8 of 13) [CRLA-159/1998]
(Article 1) entry had a line drawn just before the name of
accused-respondent Aarif. The presence of that line raises a doubt
as to the possibility that accused-respondent Aarif's name was
added in the entry at a later stage.
13.2. This Court also observes that the testimony of Mohd. Yakub
PW.14 is of great significance in the present case, as he clearly
deposed that his signature with respect to recoveries (Ex.P.24,
Ex.P.25, Ex.P.26, Ex.P.27, Ex.P.31, Ex.P.39, Ex.P.40 and Ex.P.42)
as motbir were done on the same day, however, on a perusal of
the above-mentioned documents the dates of recoveries are
mentioned to be of 5th, 10th and 11th, which raise a shadow of
doubt on the aforementioned recoveries made in the present case
as well as credibility of testimony of PW.14.
14. This Court further observes that Moolchand PW.5 deposed in
his statement that a crowd of about 200 people gathered at the
place where the dead body of the deceased was lying, however,
the prosecution failed to bring any independent witness on record.
15. This Court also observes that Dr. Rajkumar Saraf PW.13 in
his cross-examination stated that the deceased had undigested
food in his stomach and opined that undigested food remains in a
persons digestive system for 2-4 hours. The medical evidence
contradicts with the testimonies of PW.12 and PW.15 who clearly
stated that the deceased did not eat his dinner before going with
the accused respondents. The said contradictions indicate that the
deceased had food between 4-8:00 PM, i.e., 3-4 hours before his
death, at a place elsewhere, which further shakes the prosecution
story.
[2025:RJ-JD:22999-DB] (9 of 13) [CRLA-159/1998]
15.1. This Court also observes that Dr. Vishnunarayan Mathur
PW.19 deposed that blood found on the recovered articles was
that of a human however it could not be identified to be that of
the accused-respondents or of the deceased. In such a situation,
the doctor's evidence does not in any way connect the accused
persons with the crime in question. Further, the blood stains or
any other expert evidence does not carry the circumstantial
evidence to the door steps of the accused Aarif Mohd. and Saddik
Mohd. Thus, the learned Trial Court had rightly arrived at a
conclusion that the chain of circumstantial evidence could not be
proved beyond all reasonable doubts and no cause is made out for
interference in the view taken by the learned Trial Court in the
impugned judgment of acquittal.
16. This Court further observes that the prosecution has failed to
prove the motive of the accused-respondents in committing the
alleged offence. The testimonies of the last seen witnesses,
namely PW.12 and PW.15, do not mention any prior enmity or
motive of the accused-respondents Aarif Mohd. and Saddik Mohd.
in causing the death of the deceased. Thus, in such a situation,
fastening criminal liability upon the accused-respondents in the
absence of substantial and admissible evidence would constitute a
miscarriage of justice and is legally unsustainable.
17. At this juncture, this Court deems it appropriate to reproduce
the relevant portions of the judgments rendered by the Hon'ble
Apex Court in the cases of Mallappa & Ors. Vs. State of
Karnataka (Criminal Appeal No. 1162/2011, decided on
12.02.2024) and Babu Sahebagouda Rudragoudar and Ors.
[2025:RJ-JD:22999-DB] (10 of 13) [CRLA-159/1998]
Vs. State of Karnataka (Criminal Appeal No. 985/2010,
decided on 19.04.2024), as hereunder-:
Mallappa & Ors. (Supra):
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could
be summarized as:
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive inclusive
of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in
a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two
views are possible, the one in favour of the accused shall
ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in
appeal on a re-appreciation of evidence, it must specifically
address all the reasons given by the Trial Court for acquittal
and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court."
Babu Sahebagouda Rudragoudar and Ors. (Supra):
"38. Further, in the case of H.D. Sundara & Ors. v. State
of Karnataka (2023) 9 SCC 581 this Court summarized the
principles governing the exercise of appellate jurisdiction
while dealing with an appeal against acquittal under Section
378 of CrPC as follows:
"8.1. The acquittal of the accused further strengthens
the presumption of innocence;
[2025:RJ-JD:22999-DB] (11 of 13) [CRLA-159/1998]
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence, is
required to consider whether the view taken by the trial
court is a possible view which could have been taken on
the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the
ground that another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the
judgment of acquittal recorded by the trial Court in favour
of the accused has to be exercised within the four corners
of the following principles: (a) That the judgment of
acquittal suffers from patent perversity; (b) That the same
is based on a misreading/omission to consider material
evidence on record; (c) That no two reasonable views are
possible and only the view consistent with the guilt of the
accused is possible from the evidence available on record."
18. This Court observes that the learned Trial Court passed the
impugned judgment of acquittal of the accused-respondents under
Sections 302 and 201 IPC, which in the given circumstances, is
justified in law, because as per the settled principles of law as laid
down by the Hon'ble Apex Court in the aforementioned
judgments, to the effect that the judgment of the Trial Court can
be reversed by the Appellate Court only when it demonstrates an
illegality, perversity or error of law or fact in arriving at such
[2025:RJ-JD:22999-DB] (12 of 13) [CRLA-159/1998]
decision; but in the present case, the learned Trial Court, before
passing the impugned judgment had examined each and every
witnesses at a considerable length and duly analysed the
documents produced before it, coupled with examination of the
oral as well as documentary evidence, and thus, the impugned
judgment suffers from no perversity or error of law or fact, so as
to warrant any interference by this Court in the instant appeal.
19. This Court further observes that the scope of interference in
the acquittal order passed by the learned Trial Court is very
limited, and if the impugned judgment of the learned Trial Court
demonstrates a legally plausible view, mere possibility of a
contrary view shall not justify the reversal of acquittal as held by
the Hon'ble Apex Court in the aforementioned judgment, and
thus, on that count also, the impugned judgment deserves no
interference by this Court in the instant appeal.
20. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case as well as in light of the
aforementioned precedent laws, this Court does not find it a fit
case warranting any interference by this Court.
21. Consequently, the present appeal is dismissed.
22. However, while keeping in view the provision of Section 437-
A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita,
2023, the accused-respondents are directed to furnish a personal
bond in a sum of Rs. 25,000/- each and a surety bond each in the
like amount, before the learned Trial Court, which shall be made
effective for a period of six months, to the effect that in the event
of filing of Special Leave Petition against this judgment or for
[2025:RJ-JD:22999-DB] (13 of 13) [CRLA-159/1998]
grant of leave, the accused-respondents, on receipt of notice
thereof, shall appear before the Hon'ble Supreme Court as and
when called upon to do so.
23. All pending applications stand disposed of. Record of the
learned Trial Court be sent back forthwith.
24. This Court is thankful to Ms. Shivangi Pathak, who has
rendered her assistance as Amicus Curiae, on behalf of the
accused-respondents, in the present adjudication.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
24-nirmala/-
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