Rajasthan High Court - Jodhpur

State vs Dharmendra (2025:Rj-Jd:23897-Db) on 14 May, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:20037-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 522/1996

State of Rajasthan
                                                                         ----Appellant
                                       Versus
Dharmendra S/o Anil Kumar Trivedi resident of Garasiya Pura
(Sreli) Police Station Suraj Pole, Udaipur.                         (Um. Reth District
Khera Taluka Anand (Gujrat)
                                                                       ----Respondent


For Appellant(s)             :     Mr. Rajesh Bhati, PP.
For Respondent(s)            :     Mr. Mridul Jain with
                                   Mr. Bhagat Dadhich


     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH Order

Reserved on: 23/04/2025 Pronounced on: 14/05/2025 Per Hon'ble Mr. Sandeep Shah, J:

1. The present appeal under Section 378 of Cr.P.C. has been filed

by the State of Rajasthan being aggrieved against the judgment

dated 11.04.1996 passed by Sh. Satya Prakash Pathak, learned

Sessions Judge, Udaipur in Sessions Case No.106/95, whereby

learned trial Court has acquitted the respondent- Dharmendra for

offences punishable under Section 302 of IPC.

Facts of the case:

2. The brief facts of the case are that one Sh. Krishan Dadhich,

Manager of Fateh Memorial, Udaipur made a telephonic call to the

Police Station, Surajpole informing therein that in room number 16

of the Dharamshala, a lock was affixed on the outer side and the

place was stinking badly. It was further stated that the room had

been allotted on 23.12.1994 at around 06:30 AM to Sh. Ajay Kumar

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Sharma, a resident of New Delhi. Based on the telephonic

information, the police officials visited the site in the presence of

photographers. Thereafter, the lock was broken, and the body of a

female was found inside the room.

3. Following this, a written report (Exh.P-1) was submitted by Sh.

Krishan Dadhich, repeating the contents of the telephonic

information and the fact that the police had arrived at the scene.

Based on the written report dated 26.12.1994, the police registered

an inquest case under Section 174 Cr.P.C., and statements of few

witnesses were taken. After that, a site inspection and panchnama

of the body of the deceased- Indira were prepared. The medical

report was obtained from Dr. Anish Ahmed, and the recovery of

articles, including a T-shirt, sweater, bag, bed-sheet, blanket etc.

was carried out. Certain witnesses were examined, and thereafter,

the FIR (Exh.P-28) was lodged for offenses punishable under Section

302 of the IPC.

4. The police officials thereafter recorded the statements of

various witnesses and arrested the accused. The recovery of a knife

and certain other articles was allegedly made at the instance of the

accused. A test identification parade of the accused was then

conducted. The police thereafter submitted the challan, and after

the framing of charges, the examination of witnesses was

conducted. The prosecution examined 14 witnesses to support their

case and prove the guilt of the accused. The accused was

subsequently examined under Section 313 Cr.P.C., during which he

stated that he was not guilty and had been falsely implicated.

5. The trial court thereafter considered the record, took into

account the arguments of both sides, and passed the judgment on

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11.04.1996, acquitting the accused-respondent. The court stated

that it was a case of circumstantial evidence and that the

prosecution had failed to prove the case beyond a reasonable doubt.

Argument on behalf of the appellant- State:

6. Laying a challenge to the above-mentioned judgment, the

learned Public Prosecutor has argued that the learned trial court

failed to consider that this was a case of circumstantial evidence,

where the chain of evidence was found intact and there was no

missing link whatsoever. It has been argued that the evidence of

witnesses PW-2 Uttam Kumar, PW-5 Dalpat Singh, and PW-7 Sushil

Kumar clearly shows that they last saw the accused with the

deceased, Indira.

7. It has further been argued that all three of the above-

mentioned witnesses identified the accused pursuant to the test

identification parade under the supervision of PW-4 Ashok Kumar,

Special Judicial Magistrate. It has further been argued that the

motive for the accused murdering the deceased, Indira, has also

been specified by PW-8 Praful Bhai, the brother of the deceased.

Furthermore, the recovery of the knife has been proven based on

the information provided by the accused under Section 27 of the

Indian Evidence Act, as testified by PW-12, the then Sub-Inspector

Sh. Kushal Chordia. It was thus submitted that the trial court

committed gross error in acquitting the accused-respondent.

Argument on behalf of counsel for respondent-accused:

8. On the other hand, Mr. Mridul Jain, the counsel for the

respondent, submitted that the learned trial court rightly held that

there was no substantial evidence from PW-2 Uttam Kumar, PW-5

Dalpat Singh, and PW-7 Sushil Kumar regarding the "last seen"

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version and their alleged identification of the accused in the test

identification parade was undermined by their own admissions in

cross-examination. They had stated that they had seen the accused

at the police station long before the test identification parade was

conducted.

9. It was further stated that in the statements of PW-5 Dalpat

Singh and PW-2 Uttam Kumar, there were gross improvements as

compared to their earlier statements recorded during the inquest

proceedings, i.e. Exh.D-7 and Exh.D-8.

10. It was further argued that no motive had been assigned to the

accused for the murder of Indira. On the contrary, the statement of

PW-8 Praful Bhai showed that he was informed about the accused

eloping with the deceased, Indira, by Sh. Jayanti Bhai (the husband

of the deceased). However, Jayanti Bhai was not produced as a

witness. Additionally, the evidence of PW-4 Ashok Kumar revealed

that, pursuant to the investigation, Jayanti Bhai and another

individual, Mahendra Bhai, were arrested by the police. However, no

documents in this regard were presented by the prosecution.

11. It was further argued that the recovery of the knife and

bloodstained clothes at the instance of the accused was of no

consequence. Firstly, both recovery witnesses, PW-10 Dilip Singh

and PW-11 Chandu Bhai, turned hostile. During cross-examination

by the Public Prosecutor, they specifically denied that any recovery

had taken place in their presence and stated that they were made to

sign blank papers.

12. It was also argued that PW-12 Kushal Chordia, the person in

whose presence the recovery was undertaken, stated that the

recovery memo did not mention the length of the knife or whether it

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had a sharp edge. This, coupled with the fact that PW-3 Dr. Anish

Ahmad did not certify that the recovered knife could have caused

the injuries stated in the post-mortem report, further undermines

the recovery.

13. It was thus argued that the accused cannot be linked to the

offense based on the doubtful recovery. It was asserted that the trial

court rightly considered all these aspects while acquitting the

accused.

Analysis and reasoning:

14. Having considered the arguments raised by the learned

counsel for both sides and after perusal of the record, we will deal

with each and every piece of evidence through which the

prosecution has sought to connect the accused with the crime in

question.

(i) Last seen- As far as the 'last seen' is concerned, the star

witnesses for the prosecution are PW-2 Uttam Kumar, PW-5 Dalpat

Singh, and PW-7 Sushil Kumar. PW-2 Uttam Kumar has stated that

he used to provide beds on a contract basis to the Dharmshala in

question, i.e., Fateh Memorial, Udaipur, and on 23.12.2024, the

accused came to his shop around 7-8 AM to get two bed sets,

stating that he was staying in room No. 16. He further states that

when the accused came, he was wearing a t-shirt with something

written in English. PW-2 has also stated that he was a witness to

the recovery conducted by the police officials from the site of the

incident, i.e., the bed sheet, blanket, clothes worn by the

deceased, and other articles. PW-2 further mentions that during

the test identification parade conducted at the Central Jail,

Udaipur, in the presence of the Magistrate, he identified the

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accused and signed the memo (Exh.P-12) in this regard. However,

a bare perusal of his cross-examination will reveal that he had

visited the police station one or two times in connection with the

case before the test identification parade and admitted that he

had seen the accused at the police station prior to the parade.

Additionally, the statement (Exh.D-8), which bears his signature

and was recorded during the inquest proceedings, reveals that

there was no mention of the accused wearing a t-shirt with

something written in English. Instead, the version given by him in

this statement was solely about the built of the person, not about

the details of his clothing, as stated in his testimony before the

trial court.

PW-5 Dalpat Singh was working as a gatekeeper (chowkidar)

at the Dharamshala in question. He stated that on 23.12.1994, he

saw the accused carrying warm water and climbing the stairs.

Upon being questioned, the accused informed him that he was

staying in Room No. 16. Strangely, during the course of his

evidence in court, PW-5, upon seeing the accused, stated that the

accused is a "same type of person" who had informed him that he

was staying in Room No. 16, rather than confirming his identity

with certainty. Furthermore, PW-5 had allegedly identified the

accused during the test identification parade conducted vide

Exh.P-12. However, during cross-examination, he clearly admitted

that he had seen the accused prior to the test identification, at the

police station itself. This admission significantly weakens the

reliability of the identification. Additionally, there is a contradiction

between the statements made by PW-5 in court and his earlier

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statement recorded during the inquest proceedings (Exh. D-7)

with regard to the identity of the accused.

As far as PW-7 Sushil Kumar is concerned, he stated that he

was working as a Class-IV employee at the Dharamshala in

question. On the morning of 23.12.1994, at around 6:30 a.m., he

saw the accused arrive at the Dharamshala along with a lady and

take Room No. 16, while introducing himself as Ashok Kumar

Sharma, a resident of New Delhi. Sh. Sushil Kumar was also a

witness in the test identification parade. However, he clearly

admitted that he had seen the accused earlier at the police

station, on 29th or 30th December 1994, prior to the test

identification parade. Furthermore, it is strange that his statement

recorded by the police was not exhibited by the prosecution during

the trial. This omission further weakens the prosecution's case.

Thus, the collective statements of all the key witnesses

reveal that their testimonies do not inspire confidence and fail to

connect the accused with the deceased, even through the test

identification parade. It is an admitted fact that all three witnesses

had seen the accused at the police station well before the

identification parade was conducted. Accordingly, the test

identification parade holds no evidentiary value and cannot be

relied upon to establish that the accused was last seen with the

deceased. The trial court rightly considered this aspect while

disbelieving the testimony of the witnesses and has given detailed

findings in this regard in Paragraphs 14 and 16 of the impugned

judgment.

(ii) Motive- The only motive sought to be attributed to the

accused was that he was allegedly in a relationship with the

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deceased, Indira, and had eloped with her. This allegation was

made by PW-8, Shri Praful, who happens to be the brother of the

deceased. However, it is significant to note that PW-8 did not have

personal knowledge of this alleged relationship. Rather, he stated

that he was informed about it by his brother-in-law, Shri Jayanti

Bhai, the husband of the deceased-Indira. PW-8 further deposed

that he had an apprehension that the accused might have

murdered Indira. Strangely, Jayanti Bhai, who is the purported

source of this information and a material witness, was not

produced by the prosecution. This omission assumes importance,

especially in light of PW-8's statement that Jayanti Bhai was

arrested by the police in connection with the murder of Indira.

Apart from the statement of PW-8 Praful Bhai, no other witness

has been examined to establish any motive on the part of the

accused.

While in a case based on direct or eyewitness testimony,

motive may not be of primary significance but in a case based

purely on circumstantial evidence, motive assumes great

importance. It becomes a crucial link in the chain of circumstances

that the prosecution must establish in order to prove the guilt of

the accused beyond reasonable doubt. In the present case, the

alleged motive is weak, unsupported, and based solely on hearsay,

which further dilutes the prosecution's case. The failure to produce

a key witness like Jayanti Bhai, and the lack of any direct evidence

establishing motive, seriously undermines the prosecution's

attempt to connect the accused to the crime.

(iii) Information Given by the accused-respondent under

Section 27 of Indian Evidence Act Regarding the recovery

[2025:RJ-JD:20037-DB] (9 of 13) [CRLA-522/1996]

of knife and bloodstained clothes: In the present case, the

prosecution has also attempted to establish the guilt of the

accused based on the recovery of socks, a bloodstained knife, and

bloodstained clothes allegedly worn by the accused, all recovered

at the instance of the accused pursuant to a disclosure under

Section 27 of the Indian Evidence Act. According to the

prosecution, after the arrest of the accused, he voluntarily

provided information under Section 27 of the Indian Evidence Act

on 12.01.1995 at around 1:45 PM, disclosing the location where

he had kept the knife, his clothes, and shoes, which were allegedly

stored in a bag at his house. Based on this disclosure, the police

visited the accused's house on 14.01.1995, and the recovery of

the said articles was carried out vide Exhibit P-24, while the site

map of the house was prepared and marked as Exhibit P-25.The

witnesses to the recovery, as shown in Exhibit P-24, were Shri

Dilip Singh (PW-10) and Shri Chandu Bhai (PW-11). However, both

these witnesses did not support the prosecution's version and

were declared hostile. In fact, during their cross-examination by

the Public Prosecutor, both witnesses categorically stated that they

were made to sign blank papers by the police officials, and that no

recovery was made in their presence. Further, PW-12 Kushal

Chordia, Sub-Inspector admitted that the keys to the house from

which the recovery was allegedly made were not with the accused,

but with someone else. This fact is significant, as it casts serious

doubt on the exclusive possession and knowledge of the accused

with respect to the recovered articles. Without establishing this

exclusive possession, the possibility of tampering cannot be ruled

out, thereby breaking the chain of evidence required to link the

[2025:RJ-JD:20037-DB] (10 of 13) [CRLA-522/1996]

accused to the crime through the recovery. Moreover, there is no

mention in the record of the length of the knife, nor whether it

was sharp-edged. Crucially, PW-3 Dr. Anish Ahmad has also not

opined whether the injuries found on the deceased were

consistent with or could have been caused by the recovered knife.

This omission further weakens the prosecution's attempt to tie the

accused to the offence through the alleged weapon. Although the

FSL report (Exh. P-31) indicates that Blood Group 'B' was found on

the knife, in the absence of a legally valid and reliable recovery,

this forensic evidence cannot be relied upon. The trial court has

rightly considered all these shortcomings and appropriately

rejected the prosecution's claim regarding the recovery, as

discussed in the impugned judgment.

(iv) Circumstantial Evidence: The case of the prosecution is

based upon the circumstantial evidence and it is not a case of any

eye witness. It is thus incumbent upon the prosecution to prove

that the entire chain of circumstances is complete and no link is

missing and that all these circumstances are so complete that

they do not leave any reasonable grounds for conclusion

consistent with the innocence of accused. It has rather to been

shown that in all human probability the act must have been done

by the accused.

In this regard, the Hon'ble Supreme Court in the case of

Sharad Birdhichand Sarda v. State of Maharashtra, reported

in (1984) 4 SCC 116, held as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

[2025:RJ-JD:20037-DB] (11 of 13) [CRLA-522/1996]

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say.

they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The above-mentioned proposition has recently been

reiterated by the Hon'ble Supreme Court in the case of Jabir &

Ors. v. State of Uttarakhand, 2023 SCC OnLine SC 32 also.

Thus, it is clear that the entire set of circumstances must

lead to the only possible conclusion of the guilt of the accused,

and the facts must be consistent and conclusive in nature. They

must also exclude every possible hypothesis except the one

pointing to the guilt of the accused. Most importantly, the chain of

evidence must be complete so as to lead to a conclusion that is

consistent with the guilt of the accused and must show that, in all

[2025:RJ-JD:20037-DB] (12 of 13) [CRLA-522/1996]

human probability, the act must have been committed by the

accused.

15. Consideration in Appeals Against Acquittal: The Hon'ble

Supreme Court, in the case of H.D. Sundara & Ors. v. State of

Karnataka, reported in (2023) 9 SCC 581, while considering the

principles to be kept in mind during the hearing of an appeal against

acquittal, summarized the legal position as under:

8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -

8.1 The acquittal of the accused further strengthens the presumption of innocence;

8.2 The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

8.3 The Appellate Court, while deciding an appeal against acquittal, after re-appreciating 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."

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16. Taking guidance from the above-mentioned judgment, it is clear

that the prosecution has failed to establish that the judgment of

acquittal suffers from any perversity or is based on a misreading of the

material available on record. Furthermore, this is not a case where no

other reasonable view is possible. In fact, in the present case, the view

pointing towards the guilt of the accused is weak and improbable,

whereas the alternative view favouring the accused is much stronger

and more plausible.

17. Thus, upon considering the entire record, we find that there

is no infirmity in the judgment passed by the learned Trial Court

dated 11.04.1996. Accordingly, the order of acquittal is upheld,