Rajasthan High Court - Jodhpur
Jaimal And Anr vs State on 9 October, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:42692-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 73/1996
Jaimal And Anr
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. RDSS Kharlia
Ms. Kinjal Purohit
For Respondent(s) : Mr. Pawan Kumar Bhati, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
JUDGMENT
REPORTABLE
RESERVED ON:- 04/09/2025
PRONOUNCED ON:- 09/10/2025
PER HON'BLE MR. RAVI CHIRANIA, J
The present criminal appeal has been filed under Section
374 Cr.P.C. by the accused-appellants Jaimal Ram and Bhagwana
Ram to challenge the impugned judgment dated 18.01.1996
passed by Session Judge, Hanumangarh in Sessions Case No.
63/94 (96/91) titled as "State vs. Jaimal and Anr" whereby
both the accused-appellants were convicted and sentenced which
are as under:-
S. No. Offence U/s Sentence Fine Sentence in
default of
time
01. 302/34 IPC Life Rs. 2,000/- 2 years RI
Imprisonment
02. 404 IPC 3 years RI Rs. 500/- 6 months RI
The appeal was filed in the year 1996 and before hearing,
status of both the accused were called from the learned Public
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Prosecutor. The learned Public Prosecutor informed this Court on
24.01.2024 that both the accused are alive.
The brief facts as noted from the record of the learned trial
court are that one Raja Ram lodged a verbal report on 22.09.1991
to SHO Police Station Dibi, District Hanumangarh on which FIR
bearing No. 232/1991 was registered. The oral report, Exhibit P-1
is reproduced as under:-
"vkt fnukad 22-9-91 dks oDr 10 ,,e ij Jh jktkjke iq= Jh chjcy
jke tkfr tkV mez 26 o"kZ fuoklh jkeiqfj;k us gkftj Fkkuk gksdj tqckuh
lqpuk nh fd vkt lqcg djhc 8 cts lh esjs fejh dqEHkkjke uk;d us
esjs ?kj vkdj crk;k fd lqcg msjs esa oDr djhc 6 cts tc eS ok viuk
f?k;kfM+;k c`tyky pk; ih jgs Fks rks ids [kkys ds uds dh rjQ 'kksjxqy
lquk rks ge nksuks uds ds ikl x, rks ns[kk fd ,d vkneh vkids HkkbZ
gfjjke ds [ksr ds dps [kkys ds ikl ejk iM+k gS ftlds xys ij jxM+d
dk fu'kku gS o ikuh ls Hkhxk iM+k gS o eSus o c`tyky us iM+kslh
eksguflg ds [ksr es ikuh yxk jgs mlds flfj;ks jkekjke uk;d o
Hkkuhjke pekj ls iqNk rks mUgksus crk;k fd bl vkneh dks t;ey iq=
gfjjke dqEgkj ok Hkxokfu;k uk;d tks gfjjke dh <k.kh ds ikl jgrk gS
us feydj csjM+h ds uhps ekjihV fd;k o mldk FkSyk [kksl fy;k o
bldks [kkys esa ekjdj Mky fn;k gS rFkk viuh <kf.k;ks dh rjQ Hkkx x,
gS ok bl e`r vKkr O;fDr dk FkSyk [kksldj lkFk ys x, gSA geus tkdj
ns[kk rks ;g vkneh [kkyk es ikuh es ejk iM+k Fkk ftldks [kkys ls ckgj
fudkydj fyVk fn;k gS yk'k esjs HkkbZ gfjjke ds [ksr es [kkyk ds ikl
iM+h gSA t;ey iq= gfjjke dqEgkj o Hkxokfu;k uk;d tks jkeiqfj;k dh
jksgh es <kf.k;ks es jgrs gS us feydj ,d vKkr vkneh ls FkSyk fNudj
dRy djds esjs HkkbZ gfjjke ds [ksr es [kkyk es Mky fn;k gS bZryk nsrk
gq¡ dk;Zokgh dh tkosA"
As per the oral report the complainant found the body of
deceased in the agricultural field of Hari Ram. The FIR was
registered against the named person i.e. the appellants herein.
The police conducted the investigation and arrested accused-
appellants herein and filed the charge-sheet against them. The
prosecution to prove its case produced 16 witnesses and exhibited
40 documents in documentary evidence. In defence the statement
of accused persons were recorded under Section 313 Cr.P.C. as
well as of three defence witnesses. The learned trial court after
considering the statement of all the witnesses, documents
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exhibited by the prosecution and statement of accused as
recorded under Section 313 Cr.P.C, and three of defence
witnesses, passed the judgment dated 18.01.1996, impugned in
the present appeal, whereby the accused-appellant were punished
for offence under Section 302 r/w 34 IPC and 404 IPC as
mentioned in the above paras.
The learned counsel for the appellant Mr. RDSS Kharlia along
with Ms. Kinjal Purohit, submitted that they have preferred the
present appeal on the following grounds.
"1. Because, the learned trial court has erred in
convicting and sentencing the appellants.
2. Because there is admittedly no direct evidence
of the crime. Circumstances relied upon by the
learned court below are not made out. Under these
circumstances, the case for conviction is not made
out.
3. Because, the Extra Judicial Confession relied
upon by the learned trial court, is not a piece of
evidence, which should have been relied upon. This is
a totally fabricated evidence. Witnesses have been
doubted and therefore, the evidence deserves to be
discarded.
4. Because the P.W.1 Rajaram the first informant
has clearly deposed that these witnesses have come
to him and has stated that they wanted to help the
prosecution. In the face of this witness their
testimony could not have been relied.
5. Because the circumstances of last seen has been
found to be established on the basis of the evidence
of the father of the deceased. No identification parade
was held. It is the admitted case that the witness had
seen the accused for the first time when the accused
allegedly went to his shop. Next time they were seen
by him in the Court. This makes his evidence
unreliable.
6. Because the Photo Graphs have been held to be
of the spot, where the dead body was found. There
was no spot near the dead body, which has the
resemblance of the back ground of the photographs,
the I.O. could have said so but there is nothing on
record to suggest the same. Wrong reliance has been
placed on the photographs.
7. Because the First Information Report was a post
investigation document. According to the prosecution
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witnesses the author of the First Information Report.
He can not be held to be a witness who would say lie
on this court.
8. Because the manner in which the investigation
has taken place, it can be termed to be an unfair
investigation.
9. Because, the recoveries alleged to be made at
the instance of the accused are false recoveries. If
the information is recorded on 28 th and the recoveries
are made on 30th then there is no other conclusion
then that the recoveries were false.
10. Because the statement of P.W.1, Rajaram
makes it clear that the Camera was not recovered at
the instance of the accused and it was at the behest
of witness that the same was planted.
11. Because, the person whom the watch was
recovered, could have been produced to prove that
the watch was given to him by the appellants, but this
was not done, it shows that the recovery was false.
12. That the other grounds will be narrated at the
time of arguments."
On the basis of the above grounds, as raised in the appeal,
learned counsel for the appellants submitted that the named FIR
was lodged by complainant against the accused-appellants on the
basis of the information as given to him by one Raja Ram
Nayak and Bhani Ram who stated that the deceased was killed
by the accused-appellants. They snatched his bag and then fled
away.
According to learned counsel for the appellants, a perusal of
the FIR shows that the servant of the complainant namely
Kumbha Ram informed him that he heard about the incident orally
around 6:00 a.m. in morning which he (servant Kumbha Ram)
further communicated to complainant around 08:00 a.m. and
thereafter he (complainant) reached the spot where already
persons gathered. The complete case/ FIR was instituted by
complainant who is not an eye-witness, but on the basis of
narrations of Raja Ram Nayak and Bhani Ram. Learned counsel
pointed out that though the informant Raja Ram Naik and Bhani
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Ram stated to have witnessed the incident, as per complainant,
but they did not inform the police about the incident, rather it is
complainant, who on his own lodged the oral report on
which FIR bearing No. 232/1991 was registered. The
learned counsel seriously questioned the conduct of the
complainant as even though he was not an eye-witness but his act
of lodging the named FIR reflects that the it was lodged with
ulterior motives. He submitted that as the oral report was lodged
by the complainant based on narration of Raja Ram Nayak whose
statement was recorded as PW-1, therefore, the statement, being
relevant, are reproduced as under:-
"vkt ls djhc 7&8 ekg igys dh ckr gS esjk lhjh dqEHkkjke uk;d lqcg
8 cts ds djhc esjs ikl vk;k o dgk fd vkt lqcg tc og rFkk mudk
etnwj c`tyky pk; ih jgs Fks rks iDds [kkys ds uDds dh rjQ "kkSjxqy
lqudj uDds ds ikl x;s rks ,d vkneh dh yk"k vkids HkkbZ gjhjke dh
yk"k dPps [kkys ds ikl iMh Fkh] ftlds xys ij jxMd ds fu"kku gSA
yk"k ikuh ls Hkhxh gqbZ gSA bl ij mlus o c`tyky us [ksr iMkSlh
eksguflg ds [ksr esa ikuh yxk jgs mlds lhjh jktkjke uk;d o Hkkuhjke
dqEgkj ls iqNk rks mUgksus cryk;k fd bl vkneh dks t;ey iq= gjhjke
dqEgkj o Hkxokuh;k uk;d tks gjhjke dh <k.kh ds ikl jgrk gS mUgksus
ekj fn;k gSA t;ey o Hkxokuh;k us csjMh ds uhps mldk FkSyk [kksl
fy;k o ekjihV fd;k o ekjdj [kkys es Mky fn;k o viuh <k.kh dh
rjQ Hkkx x;s o e`rd dk Fksyk Nhu dj ys x;sA
izfrijh{kk }kjk odhy eqyfteku
;g lgh gS fd iqfyl es tc eS ?kVuk dh bZfryk nsus x;k rc
mUgksus dgk fd igys ekSdk ns[k ysrs gS fQj ipkZ ntZ dj ysxsA bl ij
igys mUgksus ekSdk ns[kk o fQj vkdj izFke lwpuk izn"kZ ih&1 Fkkus es
ntZ dhA ;g lgh gS fd ukjk;.kflag o t;pUn xokgku bl ?kVuk ds nks
rhu fnu ckn esjs ikl vk;s Fks] mUgksus esjs ikl xkao es vkdj dgk fd
vki bl eqdnek esa eqLrxhl gksA vki Fkkus es pyks ge dqEgkj lekt ds
usrk gS] ges xokg cuuk gS vkSj mUgksus ;g Hkh dgk Fkk fd ge bl pht
dh xokg cusxs fd eqyfteku gekjs ikl vk;s o gekjs lkeus tqeZ dk
bdcky fd;kA eSus dgk fd eS rks >wBh dk;Zokgh ds fy, Fkkus ugh tkrk
vki [kqn gh Fkkus tkvksA tc ;s nksuks xokgku esjs ikl vk;s rc os vkt
tks QksVks izn"kZ ih&7 eSus ns[kh gS ;g Hkh lkFk yk;s Fks o dgk Fkk fd ;s
Fkkus es is"k djuh gS] ;g lgh gSA ;g Hkh lgh gS fd ml oDr muds ikl
,d FkSyk ftles dSejk Fkk] lkFk yk;s Fks o dg jgs Fks fd Fkkus es is"k
djuk gSA ge ekSds ij x;s rc e`rd ds ftLe ij ?kMh o lksus dh pSu
FkhA
Learned counsel referred, at the cost of repetition, to the
facts as stated in the cross-examination by PW-1, in which he
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stated that police first inspected the place of incident and
thereafter, registered the FIR in the police station. This
witness admitted that 2-3 days after the incident, PW-13
and PW-14, told him that they are leaders of kumhar's
samaj and wanted to be witnesses in the case and would
state against the accused-appellants and would also state
that both the accused-appellants accepted their guilt
before them. Learned counsel further pointed out the
specific line that initially the complainant refused, however,
he was swayed away by their persuation and believed their
story as they were carrying a bag in which there was one
camera which they wanted to handover to the police. By
referring to the facts as stated by PW-1, in the cross-examination,
learned counsel submitted that intentionally, without any
basis, PW-13 and PW-14 namely Jai Chand and Narayan
Singh stepped in and insisted PW-1 that they want to
support his case by giving some evidence. The admitted
fact that they were carrying a bag with a camera inside
shows that they came with evidence to plant, to falsely
implicate the accused-appellants.
The counsel further submitted that as the FIR was lodged on
the information of Kumbha Ram (servant of complainant) and
therefore, he referred to the statement of PW-3 Raja Ram and
PW-4 Brij Lal as complainant witnesses the incident. The
statement of both the witnesses shows that they were declared
hostile by the prosecution and destroyed the complete
basic story as orally reported to the police by PW-1. PW-4
specifically stated in examination-in-chief **eSaus gfj jke ds [ksr ds [kkys
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ds ikl dksbZ yk"k fdlh O;fDr dh ugha ns[kh FkhA** Even after the complete
denial by PW-2 and PW-4, of having seen the body of the
deceased in the agricultural field, still PW-1 falsely stated that
they informed him about the accused-appellant, shows that the
complete case as lodged against them is fake on the face of
record. The learned counsel submitted that as many as five
witnesses were declared hostile by the prosecution namely PW-2,
PW-3, PW-4, PW-5 and PW-6 who were presented as important
witnesses by the prosecution. Without any basis the named FIR
was lodged against the appellants on the basis of unverified
version of PW-2 and PW-4 who denied the complete story of PW-1
and therefore, it is clear without any iota of doubt that appellants
are innocent and falsely implicated in the case.
Ignoring the above clear denial, learned trial court passed
the impugned judgment which is contrary to law. The learned
counsel further submitted that the statement of PW-15 Atar Singh,
the Investigating Officer is also relevant and so relevant lines
from his statement are reproduced as under:-
"fnukad 22@9@91 dks eSa Fkkukf/kdkjh Vhch esa rSukr FkkA ml jkst
Jh jktkjke us Fkkuk gkftj gksdj tqckuh bfryk nhA ftldks mlds
cksys vuqlkj fy[kk x;kA tks tks ,Q vkbZ vkj izn'kZ ih&1 gS ftl
ij bZ ls ,Q LFkku esjs gLrk{kj gSA
ftjg odhy eqyfte %&
;g dguk xyr gS fd eSaus igys ?kVukLFky dk uD'kk ekSdk
ns[kdj fQj ,Q vkbZ vkj ckn esa ntZ dh gksA esjh r¶rh'k ds nkSjku
t;ey o ukjk;.k flag xokgku ds uke tc eSa vfHk;qDrksa dh rSyk'k
dj jgk Fkk tc fnukad 23@9@91 dks irkjlh ds nkSjku irk pyk
dh vfHk;qDrx.k FkkyM+dk dh rjQ dksbZ t;pUn uke ds vkneh ds
ikl vkus tkus dk ekywe gqvk rc t;pUn ls eqdnek esa r¶rh'k
djuh t:jh le>dj mlls r¶rh'k dhA o t;pUn ls r¶rh'k ds
nkSjku xokgku ukjk;.kflag dk Hkh irk pykA ;g eq>s vkt /;ku
ugha fd t;pUn o ukjk;.k flag xokgku dks eSaus Fkkus ij cqykdj
r¶rh'k dh Fkh ;k eSa muds xkao tkdj r¶rh'k dh FkhA fnukad
23@9@91 dks eSa FkkyMdk x;k Fkk ijUrq t;pUn feyk ugha fQj
24 rkjh[k dks cqykus ds fy, vkneh Hkstk Fkk bu xokgku ds fdrus
cts eSaus c;ku fy;s Fks ;g eq>s /;ku ughaA ;g dguk xyr gS fd
bu xokgku us Qjh;knh jktkjke dks xokg cuus ds fy, dgk gks
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vkSj jktkjke us budkj dj fn;k bl ij bu xokgku dks eSaus xokg
j[kk gksA ;g dguk xyr gS fd e`rd ds 'kjhj ij ?kM+h o pSu gksA
tc eSa ekSds ij x;k feyh gks vkSj ;g dguk Hkh xyr gS fd
bl ?kM+h o pSu dks vfHk;qDr ls ckn esa xyr :i ls cjkenxh
n'kkZbZ gksA ;g dguk xyr gS fd ukjk;.kflag o t;pUn ds ikl
dSejk QksVks gks vkSj os igys buphtksa dks ysdj jktkjke ds ikl x;s
gks o ckn esa esjs ik; ysdj vk; gksA vkSj ;g Hkh dguk xyr gS fd
bu phtksa dh cjkenxh vfHk;qDrk ls xyr n'kkZbZ gksA ;g lgh gS fd
eqyfte us eq>s dSejk cjken djok;s tkus dhlwpuk nh Fkh ijUrq tc
eqyfte ls bl dSejs dh cjkenxh dh xbZ Fkh rc dSejs esa Qy'k
ykbZV vVSp Fkh jhy vUnj Fkh o dSejk cSx esa j[kk FkkA -------------- ;g
lgh gS fd eSaus jsgM+h okys v'kksd dqekj ls ;g c;ku fjdkMZ ugha
fd;s D;ksafd eSaus ;g c;ku fjdkMZ djus mfpr ugha le>sA eSaus
v'kksd dqekj ?kM+h okys ls cjkenxh fd;s tkrs le; ogka cl vM~Ms
ij mifLFkr yksxksa dks xokg j[kk gSA ;g dguk xyr gS fd eSaus
eqyfteku dks ikap N% fnu Fkkus esa cSBk;s j[kk gks ------------------"
The counsel specifically pointed out the cross-examination of
the Investigating Officer, Atar Singh (PW-15) and submitted that
PW-15 denied that he first inspected the place of incident and then
registered the FIR whereas PW-1 in his cross-examination
specifically stated ";g lgh gS fd iqfyl esa tc eSa ?kVuk dh bfÙkyk nsus x;k
rc mUgksaus dgk fd igys ekSdk ns[k ysrs gSa fQj ipkZ ntZ dj ysaxsA bl ij igys
mUgksaus ekSdk ns[kk o fQj vkdj izFke lwpuk izn"kZ ih&1 Fkkus esa ntZ dhA ". This
serious contradiction in the statement of PW-1 and PW-15 shows
that the Investigating Officer has not acted in an fair manner and
the investigation since inception was not fair. The Investigating
Officer further stated that he investigated the facts from PW-13
Jai Chand and PW-14 Narayan Singh as he came to know, during
the investigation, that they (PW13 and PW-14) have relevant
information. PW-15, as per learned counsel, on the basis of above
lines, submitted that he denied the fact that Narayan Singh
and Jai Chand had any photo camera and they came to him
along with complainant. The relevant lines, as referred by
learned counsel from cross-examination of PW-15 are " ;g dguk
xyr gS fd ukjk;.k flag o t;pUn ds ikl dSejk QksVks gksa vkSj os igys bu phtksa
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dks ysdj jktkjke ds ikl x, gksa o ckn esa esjs ikl ysdj vk, gksaA ". This
statement of Investigating Officer is completely false, incorrect
and contradictory because, as already pointed out in the above
paras, learned counsel submitted that PW-1, the complainant, in
his cross-examination stated ";g lgh gS fd ukjk;.k flag o t;pUn
xokgku bl ?kVuk ds nks&rhu ckn esjs ikl vk, Fks] mUgksaus esjs ikl xkao esa vkdj
dgk fd vki bl eqdnek esa eqLrxhld gks vki Fkkus esa pyks ge dqEgkj tkfr ds
usrk gSa] gesa xokg cuuk gS vkSj mUgksaus ;g Hkh dgk fd ge bl pht dh xokg cusaxs
fd eqyfte gekjs ikl vk, o gekjs lkeus tqeZ dk bdcky fd;k------ " "tc ;s nksuksa
xokgku esjs ikl vk, rc os vkt tks QksVks izn"kZ ih&7 eSaus ns[kh gS ;g Hkh lkFk
yk, Fks o dgk fd Fkkus esa is"k djuh gS] ;g lgh gSA ;g Hkh lgh gS fd ml oDr
muds ikl ,d FkSyk Fkk ftlesa dSejk Fkk] lkFk yk;s Fks o dg jgs Fks fd Fkkus esa is"k
djuk gSA" Accordig to learned counsel, the serious contradiction in
the statement of PW-1 and PW-15 shows that Investigating
Officer was acting in collusion with PW-13 and PW-14 to
falsely implicate the accused-appellants and it is a clear
case of planting of evidence against the accused-appellants
by Investigating Officer, PW-15, in collusion with PW-13 ad
PW-14. The learned counsel further submitted that the
Investigating Officer stated that on the accused information, as
received under Section 27 of Evidence Act, he recovered the
camera. According to PW-15 there was a reel inside the camera.
The counsel further submitted that PW-1, whose statements were
recorded by the trial court on 22.05.1992 stated that PW-13 and
PW-14 were carrying a camera but the contradictory facts,
as stated by the Investigating Officer in his statement
before the trial court recorded on 18.11.1995, has put
serious question mark on his conduct and declares the
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entire investigation and recovery of camera as made him
shows collusion between them.
The learned counsel then referred to alleged recovery made
by the Investigating Officer of camera along with reel for which
the recovery memo Exhibit P-22 was prepared on 30.09.1991.
This Exhibit P-22 was not admitted by the accused in the trial
and a note in this regard was also mentioned on Exhibit P-
22. The learned counsel submitted that one Nemi Chand S/o
Rameshwar Singh and Narayan Singh S/o Chunni are recovery
witnesses to Exhibit P-22. The counsel further submitted that
Nemi Chand was not produced in evidence by the
prosecution and as far as Narayan Singh is concerned his
statement was recorded and he has already pointed out the
conduct of PW-14 regarding the planting of evidence of camera
from the testimony of PW-1. Therefore, the recovery of camera as
tried to proved by the prosecution is false and baseless and
further this declares the recovery as fake and destroys the
complete foundation of prosecution story.
The counsel further submitted that other recovery memos,
as prepared by the Investigating Officer, were also not admitted
by the accused-appellants and a note in this regard (not
admitted) was specifically mentioned on respective memos,
exhibited in the trial. Learned counsel further submitted that the
accused Bhagwana Ram denied giving any information under
Section 27 of the Indian Evidence Act to Investigating Officer. The
accused were falsely shown to have been arrested on 27.09.1991.
The counsel further submitted that the police prepared Exhibit P-
17, dated 30.09.1991, which is recovery memo of one HMT watch.
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The recovery witnesses of Exhibit P-17 are Sharwan Kumar S/o
Pukhraj and Govind Ram S/o Shankar Lal, but they were not
produced in evidence by the prosecution to prove the
recovery of HMT watch. The counsel submitted that as all
important witnesses turned hostile, the statement of complainant
PW-1 and Investigating Officer, PW-15 are contradictory to each
other and this, therefore, declares complete case of the
prosecution as false and even the alleged recovery of camera from
the accused shown by Exhibit P-22 is also false as same was
planted. This fact has been pointed out learned counsel from the
cross-examination of PW-1 i.e. complainant. Therefore, no
recovery was made from accused-appellant rather it was planted
by PW-13 and PW-14 in collusion with PW-15. Therefore, the
complete case is false.
After this, the learned counsel referred to the statement of
PW-8 who is the brother of the deceased, who in his examination-
in-chief stated that he saw the body of his deceased brother,
Mangal Sain, and at that time there was no watch, no chain on his
body and also the camera. He further stated that the police
recovered the HMT watch from one rehdiwala namely Ashok
Kumar Sindhi. The counsel then referred to the cross-examination
of this witness PW-8 who stated "?kM+h dh cjkenxh dRy gksus ls lkr&vkB
fnu Ik"pkr~ gqbZ Fkh--- cl vM~Ms ds vanj ?kqlus ij if"pe dh vksj ls ?kM+h cjken
dh Fkh**. According to learned counsel this witness PW-8 stated false
and incorrect fact regarding the recovery of watch and further that
when he saw the body, there was no watch, chain and camera on
the body whereas PW-1 in his cross-examination stated "ge
ekSds ij x;s rc e`rd ds ftLe ij ?kMh o lksus dh pSu Fkh* ", therefore,
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there are serious contradictions regarding watch and the
chain in the statement of PW-1 & PW-8, who are the brothers
of the deceased-Mangal Sain and present on the spot at the same
time. Therefore, the recovery of HMT watch, as stated to have
been made by the police on the information of the accused-
appellants, is false and statement of PW-8 cannot be relied upon
for the conviction of the accused-appellants. Learned counsel
further submitted that PW-8 stated that police recovered the
watch from one Ashok Kumar Sindhi, near Bus Stand
Hanumangarh, however, the statement of Ashok Kumar
Sindhi were not recorded during trial as he was not
produced in evidence by the prosecution, due to non-
recording of the statement of important witnesses Ashok
Kumar Sindhi, the complete recovery of the watch becomes
doubtful and that is why the accused-Bhagwana Ram
rightly denied the recovery memo Exhibit P-17 as prepared
on 30.09.1991.
Learned Counsel further submitted that rest of the witnesses
also failed to make any incriminating statements against the
accused-appellants and therefore, whatever they stated in their
statement before the learned trial court was not sufficient to
record the conviction of the appellants. He further pointed out that
PW-13 Jai Chand stated in his examination-in-chief that both the
accused persons informed him that they have killed the deceased-
Mangal Sain and requested him for a compromise or settlement in
the matter. This witness in cross-examination stated that
deceased-Mangal Sain is the relative of Narayan Singh, PW-14 and
he is also, as per the details mentioned in the statement recorded
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by learned trial court is of the same caste i.e. "kumhar" stated
**;g lgh gS fd eqyfteku }kjk esjs ls dRy dj fn;s tkus dh ckr tc crkbZ Fkh
rks eSaus mUgsa Fkkus ij pyus dks ugha dgk** . This fact of compromise was
informed, as per the PW-13, to him in the morning around 08:00
a.m., however, he did not inform this fact to complainant Raja
Ram, brother of the deceased and, this further shows that this
witness was planted to support the false story of extra
judicial confession and this witness further connects
himself to PW-14 Narayan Singh. According to learned
counsel, PW-13 Jai Chand, PW-14 Narayan Singh and PW-1
Raja Ram belongs to same caste and in collusion with PW-
15, Investigating Officer, complete false acquisition was
designed in the case. According to learned counsel PW-14,
Narayan Singh, is an important witness in this case. Witness PW-
14 in his examination-in-chief stated that both the accused-
appellants confessed to him that they killed the deceased and they
narrated him the reason and the manner in which they killed the
deceased. By referring to the cross-examination of PW-14, the
learned counsel submitted that as per PW-13 Jai Chand, the
accused-appellants confessed their guilt to him around 08:00 a.m.
and thereafter they went to PW-14 Narayan Singh around 10:00
a.m. Despite this, both PW-13 and PW-14, they did not
lodge any report and same was lodged by PW-1. The counsel
submitted that conduct of PW-13 and PW-14 was seriously
contradictory and further comes into question when their
statement are read along with statement of PW-1, the
complainant. He further submitted that PW-14 went to the police
station without any reason and basis and further, as per
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[2025:RJ-JD:42692-DB] (14 of 26) [CRLA-73/1996]
prosecution, at the behest of the accused-appellants one safa,
camera and HMT watch were recovered after 7-8 days whereas
as per PW-1, PW-14 was carrying the camera in his bag
which he wanted to hand over to the police, which he did
also and by this is how they planted evidence in collusion
with the Investigating Officer, PW-15. The prosecution this
way tried to prove the guilt of accused-appellants. Counsel
referred to the relevant lines from the cross-examination of PW-14
which reads as ";s ckr lgh gS fd eqyfteku }kjk crkbZ xbZ ckr eSus Fkkus esa
crk;s tkus ds vykok vkSj fdlh dks ugha crkbZ FkhA Fkkus ij bl ?kVuk dh ckr
crk;s tkus ds ckn eSus bl ?kVuk dk ftØ e`rd ds ifjokj okyksa dks Hkh fd;k gS ".
the serious unwanted interference and intentional involvement of
PW-14 in the case and his designed narration about alleged extra
judicial confession of the accused-appellant is illegal on the face of
record. PW-1 by his cross-examination has declared the complete
testimony of PW-14 as doubtful and contradictory and therefore,
evidence of PW-14 cannot be read and relied upon for the purpose
of conviction of the accused-appellant in the present case.
The counsel further submitted that the present case is
not based on eye-witness rather it is a case based on
circumstantial evidence. The deceased died due to
strangulation, however, not a single witness was able to prove the
presence and involvement of accused-appellant beyond
reasonable doubt. He further submitted that when the statement
of PW-1, PW-14 and PW-15 are full of contradiction and infirmities
and further their statement declares the complete recovery as
illegal being planted, then the finding of the learned trial court
regarding the conviction are erroneous. The learned trial court,
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[2025:RJ-JD:42692-DB] (15 of 26) [CRLA-73/1996]
according to learned counsel, without any basis ignored the
serious contradictions in the statement of PW-13 and PW-14 read
with PW-1 and PW-15. Further the learned trial court ignored
the important fact that the statement of Ashok Kumar
Sindhi from whom the HMT watch was recovered as per
PW-15 was not reproduced in evidence to prove the
recovery. When the recovery is itself doubtful, as visible
from the record, then by not examining the same in right
perspective, the learned trial court committed the grave
illegality. Learned counsel further submitted that trial court by its
findings tried to cover up the serious lecunae, as left by the PW-15
Investigating Officer and then by prosecution during the trial, by
recording self satisfaction. It is the duty of the trial court to see
that prosecution proves the case about the guilt with support of
material witnesses and the recovery of the articles beyond
reasonable doubt. Therefore, the complete case is based on no
evidence rather full of contradictions and infirmities. Further,
according to learned counsel, as the present case is based on
circumstantial evidence, the law laid down by the Hon'ble
Supreme Court in the case of Sharad Birdhi Chand Sarda Vs.
State of Maharasthra (1984) 4 SCC 116 should have been
followed by the learned trial court while recording the conviction of
the accused-appellant. In last the learned counsel submits that
the present appeal deserves to be allowed and the judgment
passed by the learned trial court dated 18.01.1996 deserves to be
quashed.
Per Contra, the learned Public Prosecutor Mr. Pawan Kumar
Bhati, strongly supported the judgment of the trial court and
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[2025:RJ-JD:42692-DB] (16 of 26) [CRLA-73/1996]
countered the arguments as raised by Dr. RDSS Kharlia, counsel
for the appellants. The learned Public Prosecutor submitted that
the complainant in his oral report dated 22.09.1991 named the
accused-appellants and therefore, their involvement was informed
to the police at the inception of case. He further submitted that
the recovery of camera, HMT watch and other articles proved their
involvement without any doubt in the present case. He further
submitted that for such a heinous offence like Section 302 IPC,
where the prosecution has proved the case beyond the reasonable
doubt there should not be any interference in the judgment of
conviction for any minor contradictions, infirmities etc. when the
evidence is sufficiently recorded and considered by the learned
trial court while recording the conviction.
Heard learned counsel for the parties and perused the
record. We may now deal with the arguments raised by the
counsel Dr. RDSS Kharlia in the further paras.
According to learned counsel for the appellants, the present
case is based on circumstantial evidence as the evidence of PW-1,
PW-2 and PW-4, failed to prove the presence of the accused-
appellants at the time of alleged incident. The impugned FIR as
registered by PW-1, the complainant is based on information as
given to him by one Raja Ram and Brij Lal whose statements were
recorded as PW-2 and PW-4, however, both these persons denied
having seen any body in their field. They even refused to
recognize Raja Ram PW-3 and Mani Ram and therefore, according
to learned counsel the complete story of the prosecution is false.
While considering the above arguments of the learned counsel for
the accused-appellants, this Court noted that PW-1, Raja Ram son
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[2025:RJ-JD:42692-DB] (17 of 26) [CRLA-73/1996]
of Birbal stated that he was informed about the incident by Raja
Ram Nayak and Bhani Ram and therefore, it is clear form the
statement of PW-1 that he is not an eye-witness. The facts, as
noted by this Court from the statement of PW-2 and PW-4, are
that both the witnesses completely denied the incident and
therefore, the act of PW-1 of naming both the accused-appellants
in the FIR looses its basis and declares that on unconfirmed
information or hearsay basis he named the appellant and no real
witness, who saw the incident, named the accused-appellant in his
testimony before trial court, therefore, this reaches to the definite
conclusion that the presence of the accused-appellant at the time
of alleged incident has not been proved by the prosecution or
rather prosecution failed to prove their presence at the time of
alleged incident through the statement of PW-1, PW-2 and PW-3.
Further PW-13 and PW-14 namely Jai Chand and Narayan Singh
are also not eye-witnesses, however, they entered into the story
of the prosecution on their own by stating that accused-appellants
confessed their guilt before them. On this basis the prosecution
tried to believe and levied to prove the story of extra judicial
confession as made by accused-appellants to PW-13 and PW-14.
This Court minutely examined the statement of PW-13 and PW-14
while parallely reading the statement of PW-1 and noted that PW-
13 and PW-14 played an intentional active role being the caste
leaders, in showing the involvement of accused-appellants in the
alleged incident. Their act of persuading PW-1 and their conduct of
carrying the bag with the camera, as stated by PW-1 in his cross-
examination, leads to definite conclusion of this Court that PW-13
and PW-14 planted the evidence to falsely accuse the accused-
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[2025:RJ-JD:42692-DB] (18 of 26) [CRLA-73/1996]
appellants in the present case. While recording the above finding,
this Court also records that the recovery of camera, Exhibit P-22,
seriously disputed by accused- Bhagwana Ram (note mentioned
in Exhibit P-22) in which Jai Chand and Narayan Singh were
shown as recovery witness, however, the conduct of Narayan
Singh has already been noted by this Court from the cross-
examination of the complainant PW-1, which is a clear act of PW-
14 of planting the camera as an evidence against the accused-
appellants. Further the recovery witness Nemi Chand S/o
Rameshwar Singh was not produced in evidence to prove this
recovery, therefore, the recovery of camera has not been proved
by the prosecution and similarly the recovery of the HMT watch
has not been proved as same was recovered from one Ashok
Kumar Sindhi who was not produced in evidence by the
prosecution (the person from whom the alleged HMT watch
was recovered by the police and but not produced in
evidence) so, non-recording statement of the person Ashok
Kumar Sindhi, declares the recovery of HMT watch as fake and
this has further declared the complete recovery made in the case
as fake and put serious question mark on the conduct of the
Investigating Officer. This Court further noted that Exhibit P-17,
the recovery memo of HMT watch, bears the witness of one
Sharwan Kumar S/o Pukhraj and Govind Ram S/o Shankar Lal but
both these persons were not produced in evidence by the
prosecution. This Court noted from the record of the learned trial
court that the accused-appellant Bhagwana Ram disputed/not
admitted Exhibit P-17 (recovery sealed camera reel and its
opening), Exhibit P-18 site memo recovery HMT watch, arrest
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[2025:RJ-JD:42692-DB] (19 of 26) [CRLA-73/1996]
memo Exhibit P-19, arrest memo accused-Jaimal, arrest memo,
accused- Bhagwana Ram Exhibit P-20, recovery memo registered
of photo studio exhibit P-21, recovery memo camera with reel
exhibit P-22, recovery memo one shirt-pent, one vest, one
underwear and one pair of shoes exhibit P-24, recovery memo one
shirt accused-Jaimal, Exhibit P-25, Exhibit P-27, Exhibit P-28,
Exhibit P-29, Exhibit P-31, Exhibit P-32 and Exhibit P-33. The fact
that the accused- Bhagwana Ram has not admitted all the
above recovery memos and connecting documents,
seriously declares the conduct of the Investigating Officer a
serious doubtful as he failed to conduct the fair and
impartial investigation in the matter. The collusion between
the Investigating Officer and PW-13 and PW-14 is clearly
visible and it is a classic case of planting the evidence in
the case against the accused-appellants.
On the basis of serious contradictions regarding the recovery
camera and HMT watch from the statement of PW-1, PW-8, PW-
13, PW-14 and PW-15, this Court has reached to the definite
conclusion that prosecution failed to prove the alleged recoveries
from the accused-appellants and the benefit of this goes in favor
of accused-appellants. This Court has recorded in the above paras
that on account of PW-2 and PW-3 been declared hostile, on the
basis of which PW-1 lodged the named FIR against the accused-
appellants proves that there is no eye-witness of the alleged
incident and it is a case based purely on circumstantial evidence.
The law in regard to circumstantial evidence is well settled and the
five golden principles as laid by the Hon'ble Supreme Court in the
case of Sharad Birdhi Chand (supra) are as under:-
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[2025:RJ-JD:42692-DB] (20 of 26) [CRLA-73/1996]
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:
(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
v. State of Maharashtra19 where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]
"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.
154. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
The prosecution has failed to follow the above principles. The
case is based on circumstantial evidence and the learned trial
court committed a serious mistake by not conducting the trial of
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[2025:RJ-JD:42692-DB] (21 of 26) [CRLA-73/1996]
the case considering it to be the case based on circumstantial
evidence. The complete trial is faulty and conviction as recorded is
erroneous.
PW-13 and PW-14 by their testimony has tried to prove that
both the accused-appellants confessed their guilt before them and
therefore, as per the prosecution this case is based on extra
judicial confession.
The learned counsel also referred to the judgment of the
Hon'ble Supreme Court passed in the Panchoo Vs. State of
Haryana reported in 2011 (10) SCC page 165 where the Apex
Court examined the issue of extra judicial confession. Para 16 and
28 of the judgment are reproduced as under:-
"16. The extra-judicial confession made by A-1,
Pratham is the main plank of the prosecution case.
It is true that an extra-judicial confession can be
used against its maker, but as a matter of caution,
courts look for corroboration to the same from other
evidence on record. In Gopal Sah v. State of Bihar -1
this Court while dealing with an extra-judicial
confession held that an extra-judicial confession is
on the face of it, a weak evidence and the courts are
reluctant, in the absence of a chain of cogent
circumstances, to rely on it for the purpose of
recording a conviction. We must, therefore, first
ascertain whether the extra-judicial confession of A-
1, Pratham inspires confidence and then find out
whether there are other cogent circumstances on
record to support it.
28. This Court in Haricharan case clarified that
though confession may be regarded as evidence in
generic sense because of the provisions of Section
30 of the Evidence Act, the fact remains that it is
not evidence as defined in Section 3 of the Evidence
Act. Therefore, in dealing with a case against an
accused, the court cannot start with the confession
of a co-accused; it must begin with other evidence
adduced by the prosecution and after it has formed
its opinion with regard to the quality and effect of
the said evidence, then it is permissible to turn to
the confession in order to receive assurance to the
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[2025:RJ-JD:42692-DB] (22 of 26) [CRLA-73/1996]
conclusion of guilt which the judicial mind is about to
reach on the said other evidence."
Hon'ble Supreme Court in the case of Sehdevan and Ors. Vs.
State of Tamil Nadu in a criminal appeal No. 1405/2008 decided
on 08.02.2012 again examined the issue of extra judicial
confession in depth, the relevant paras of the judgment are
reproduced as under:
"18. Accepting the admissibility of the extra judicial
confession, the Court in the case of Sansar Chand
v. State of Rajasthan 2010 (4) R.C.R. (Criminal)
825: 2010 (6) Recent Apex Judgments (R.A.J.)
235: MANU/SC/0869/2010: (2010) 10 SCC 604
held that:
29. There is no absolute rule that an extra judicial
confession can never be the basis of a conviction,
although ordinarily an extra judicial confession
should be corroborated by some other material.
[Vide Thimma and Thimma Raju v. State of Mysore,
Mulk Raj v. State of Uttar Pradesh, Sivakumar v.
State SCC paras 40 and 41: AIR paras 41 & 42),
Shiva Karam Payaswami Tewari v. State of
Maharashtra and Mohd. Azad v. State of West
Bengal]
30. In the present case, the extra judicial
confession by Balwan has been referred to in the
judgments of the learned Magistrate and the
Special Judge, and it has been corroborated by the
other material on record. We are satisfied that the
confession was voluntary and was not the result of
inducement, threat or promise as contemplated by
Section 24 of the Evidence Act, 1872.
19. Dealing with the situation of retraction from the
extra judicial confession made by an accused, the
Court in the case of Rameshbhai Chandubhai
Rathod v. State of Gujarat 2009 (3) R.C.R.
(Criminal) 618: 2009 (4) R.A.J. 370:
MANU/SC/0663/2009: (2009) 5 SCC 740, held as
under:
It appears therefore, that the Appellant has
retracted his confession. When an extra judicial
confession is retracted by an accused, there is no
inflexible rule that the court must invariably accept
the retraction. But at the same time it is
unsafe for the court to rely on the retracted
confession, unless, the court on a consideration of
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[2025:RJ-JD:42692-DB] (23 of 26) [CRLA-73/1996]
the entire evidence comes to a definite conclusion
that the retracted confession is true.
20. Extra judicial confession must be established to
be true and made voluntarily and in a fit state of
mind. The words of the witnesses must be clear,
unambiguous and should clearly convey that the
accused is the perpetrator of the crime. The extra
judicial confession can be accepted and can be the
basis of conviction, if it passes the test of
credibility. The extra judicial confession should
inspire confidence and the court should find out
whether there are other cogent circumstances on
record to support it. [Ref. Sk. Yusuf v. State of
West Bengal MANU/DE/2040/2011: 2011 (5) R.C.R.
(Criminal) 762: 2011 (5) Recent Apex Judgments
(R.A.J.) 308: MANU/SC/0701/2011 : (2011) 11 SCC
754 and Pancho v. State of Haryana
MANU/SC/1275/2011: 2011 (4) R.C.R. (Criminal)
665 2011 (5) Recent Apex Judgments 481: (2011)
21. Upon a proper analysis of the above referred
judgments of this Court, it will be appropriate to
state the principles which would make an extra
judicial confession an admissible piece of evidence
capable of forming the basis of conviction of an
accused. These precepts would guide the judicial
mind while dealing with the veracity of cases where
the prosecution heavily relies upon an extra judicial
confession alleged to have been made by the
accused.
The Principles
(i) The extra judicial confession is a weak evidence
by itself. It has to be examined by the court with
greater care and caution.
(ii) It should be made voluntarily and should be
truthful.
(iii) It should inspire confidence.
(iv) An extra judicial confession attains greater
credibility and evidentiary value, if it is supported
by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra judicial confession to be the basis
of conviction, it should not suffer from any material
discrepancies and inherent improbabilities.
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[2025:RJ-JD:42692-DB] (24 of 26) [CRLA-73/1996]
(vi) Such statement essentially has to be proved
like any other fact and in accordance with law."
Hon'ble Supreme Court in the recent case of Shanti Devi Vs.
State of Haryana, Criminal Appeal No. 2861/2025 decided
on 06.08.2025 in para 29 discussed and examined the
evidentiary value of circumstantial of extra judicial confession
which, has very weak evidentiary value and should be relied upon
with great care and caution. Relevant para of the judgment is as
under:
"29. The law on the evidentiary value of
extrajudicial confessions is well settled that such a
confession has very weak evidentiary value and should
be accepted with great care and caution. This Court in
Sahadevan vs. State of Tamil Nadu
MANU/SC/0499/2012 : 2012:INSC:209 : (2012) 6
SCC 403 undertook a thorough examination of the
jurisprudence on the evidentiary value of extrajudicial
confessions and laid down certain guiding principles,
which are reproduced hereinbelow:
22. Upon a proper analysis of the above-
referred judgments of this Court, it will be appropriate
to state the principles which would make an
extrajudicial confession an admissible piece of
evidence capable of forming the basis of conviction of
an accused. these precepts would guide the judicial
mind while dealing with the veracity of cases where
the prosecution heavily relies upon an extra-judicial
confession alleged to have been made by the accused.
The Principles
(i) The extra-judicial confession is a weak
evidence by itself. It has not be examined by the Court
with greater care and caution.
(ii) It should be made voluntarily and should be
truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value, if it is supported by a
chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the
basis of conviction, it should not suffer from any
material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved
like any other fact and in accordance with law."
This bench in the case of Kishanlal Vs. State of
Rajasthan, DB Criminal Appeal No. 278/1996 decided by
judgment dated 22.08.2025 also relied upon the judgment passed
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[2025:RJ-JD:42692-DB] (25 of 26) [CRLA-73/1996]
by Hon'ble Supreme Court in the case of Sehdevan (supra) and
Shanti Devi (supra) while examining the issue of extra judicial
confession.
Considering the above judgments, this Court noted that PW-
13 and PW-14, without any basis and justification entered into this
case and persuaded the PW-1 that they would support his case
being the leaders of the caste. The conduct of PW-13 ad PW-14 as
demonstrated by the complaint in his cross-examination in such
circumstances the alleged extra judicial confession as made to
PW-13 and PW-14 by accused-appellant cannot be believed,
rather the alleged extra judicial confession is to be discarded at
the threshold as the Hon'ble Supreme Court in the case of
Sendevan (supra) and Shanti Devi (supra) repeatedly cautioned
that the extra judicial confession being a very week piece of
evidence should be taken as a base for conviction utmost great
care and caution only when it is supported by other corroborated
evidence of the prosecution. The extra judicial confession should
be relied upon for the purposes of the conviction only then there
are no material contradictions and discrepancies in the testimony
of the material witnesses of the prosecution as before the trial
Court. If there are serious contradictions and infirmities the trial
court should desist from recording the conviction. Despite above
specific and clear law in regard to the extra judicial confession, the
learned trial court committed serious mistake while recording the
conviction in the present case.
On the basis of the above discussion and after considering
arguments of the respective counsels, this Court has already
recorded in the above paras that the present case is based on
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[2025:RJ-JD:42692-DB] (26 of 26) [CRLA-73/1996]
circumstantial evidence and the prosecution failed to connect the
chain of evidence of witnesses and the recoveries to prove the
guilt of the accused-appellant. Further, this Court noted material
contradictions in the statement of PW-1 read with statement of
PW-8, PW-13, PW-14 and PW-15 which has destroyed the
complete foundation of the case of the prosecution and therefore
this Court has reached to a definite conclusion that prosecution
has failed to prove its case beyond reasonable doubt against the
accused-appellant. Consequently, the present appeal deserves to
be allowed and the same is hereby allowed. The impugned
judgment dated 18.01.1996 passed by the learned trial court is
quashed and set aside.
The appellants are already on bail. Their bail bonds stands
discharged. The record of the trial court be sent back forthwith.
Keeping in view the provision of Section 437-A Cr.P.C./481
B.N.S.S, accused-appellants are directed to furnish a personal
bond in a sum of Rs. 25,000/- and a surety bond of 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 grant
of leave, the accused-appellant, on receipt of notice thereof, shall
appear before the Hon'ble Supreme Court as soon as they would
be called upon to do so.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
130-Jatin/-
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