Rajasthan High Court - Jodhpur
Phool Ji And Ors vs State Of Rajasthan on 14 October, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:44707-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 438/1993
1. Phool Ji S/o Shri Oonkar, resident of Chotipadal, District
Banswara.
2. Keshu S/o Shri Harji, resident of Chotipadal, district
Banswara.
3. Mangilal S/o Shri Oonkar, Resident of Chotipadal, District
Banswara. (appeal stands abated vide order dated 21.02.2008)
4. Roopa S/o Shri Harji, resident of Chotipadal, District
Banswara.
----Appellants
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Bhagat Dadhich
Mr. K.C. Sharma
For Respondent(s) : Mr. Chandra Shekhar Ojha, PP
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MRS. JUSTICE SANGEETA SHARMA
Judgment reserved on: 06/10/2025
Pronounced on : 14/10/2025
By the Court (PER, SANGEETA SHARMA, J):-
1. The present appeal has been preferred under Section 374(2)
of the Criminal Procedure Code against the judgment and order
dated 22.05.1993 passed by the learned Additional Sessions
Judge, Banswara in Sessions Case No.83/92 whereby the
appellants were held guilty for the offences punishable under
Section 302, 201 of IPC. For the offences under Section 302 IPC,
the appellants were sentenced to life imprisonment with a fine of
Rs.1,000/- and in default of payment of fine to further undergo 3
months' rigorous imprisonment and for the offence under Section
201 IPC, the appellants were sentenced to undergo two years
rigorous imprisonment with a fine of Rs. 1,000/- and in default of
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (2 of 11) [CRLA-438/1993]
payment of fine to further undergo 3 months' rigorous
imprisonment.
2. The charges for the offences under Section 302, 201 of IPC
were framed against the accused persons to which they denied
and demanded Trial. The prosecution examined as many as 16
witnesses in support of its case and exhibited 41 documents. The
accused persons were examined under Section 313 of Cr.P.C.
wherein they denied the commission of offences and stated that
they are falsely implicated.
3. Brief facts of the case are that on 09.03.1990, appellant-
accused Keshu and Phool Ji approached to PW-1 - Deep Shanker
and tendered an extra judicial confession to the effect that they
had murdered Poonam and Jassi along with the appellant Mangi
Lal and Roopa. On the basis of above facts, an FIR was lodged
and investigation commenced accordingly. After investigation,
Police filed the charge-sheet against the accused persons under
Section 302 and 201 of the IPC and and the trial commenced
accordingly. After hearing both the parties as well as considering
the material and evidence placed on record, the learned trial
Court passed the impugned judgment which is the subject matter
of the present appeal.
4. At the outset of the hearing, it has been brought to the
notice of the Court that accused-appellant Mangi Lal has passed
away on 23.06.2007, in light of this submission, the appeal
stands dismissed as abated qua the aforesaid deceased - accused
Mangi Lal. In this view of the matter, the present appeal survives
only qua the appellants Phool Ji, Keshu and Roopa.
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (3 of 11) [CRLA-438/1993]
5. During the arguments the learned counsel for the appellant
submits that there was no previous enmity or quarrel between
the deceased and the accused persons and there was no motive
or intention for the appellant - accused to commit the murder of
the deceased Jassi and Poonam. He further submitted that the
prosecution case hinges upon the circumstantial evidence i.e.
extra judicial confession, recovery of skeleton, hair clips, Kasiya,
clothes and ashes of the burnt clothes of the deceased and
identification proceeding etc. as there is no eye witness of the
incident.
6. Learned counsel further asserted that the Court below has
misread the evidence and misguided in coming to the conclusion
that the prosecution established a convincing chain of
circumstances based on material evidence and witnesses leading
to the appellants' conviction and sentence. He further argued that
there exists glaring gaps in the evidence produced by the
prosecution creating a doubt regarding the incident much less the
appellants involvement in the alleged offence.
7. Learned counsel further submitted that for the prosecution to
establish a case based on circumstantial evidence, a complete
chain of events that leads to an inescapable conclusion of
accused's guilt must be established leaving no room for
alternative explanation(s). He pointed out several loops in the
evidence presented by the prosecution with regard to the
sequential occurrence of the incident and circumstances
surrounding the death of deceased Poonam and Jassi.
8. Learned counsel further highlighted the said aspect in
reference to the evidence including deposition and cross-
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (4 of 11) [CRLA-438/1993]
examination of the witnesses. At the end, he asserts that
prosecution has failed to establish the guilt of the appellants
beyond reasonable doubt. Prayer has thus been made for allowing
the present appeal and acquittal of the appellants.
9. On the other hand, learned counsel for the State has made
an effort to explain out the circumstances supporting the
prosecution case based on evidence led by the prosecution. He
thus supported the findings of the learned trial Court as also the
conviction and sentence awarded to the appellants. He prays for
dismissal of the present appeal.
10. Having heard the learned counsel for the parties and perused
the material available on record and with their assistance, having
gone through the evidence carefully as presented by the
prosecution. It is apparent and has not been disputed that there
is no eye witnesses of the incident in question and therefore, the
prosecution case is solely based upon the circumstantial
evidence. This casts an enhanced burden on the prosecution to
demonstrate an unbroken chain of events that establishes the
accused's guilt for the alleged offence.
11. The prosecution is required to prove that there is continuity
in the sequence of events leading to an irresistable conclusion of
offence being committed by the accused appellants and no one
else.
12. Before proceeding further, it would be appropriate to
mention the principles as have been enunciated by the Hon'ble
Supreme Court in the case of Sharad Birdhichand Sarda vs.
State of Maharashtra (1984) 4 SCC 116, wherein the Hon'ble
Supreme Court has formulated the five golden principles
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (5 of 11) [CRLA-438/1993]
(Panchsheel) which would determine the parameters within which
the case of the prosecution, if based on circumstantial evidence is
to be tested with regard to the establishment of the offence
stated to be committed by the appellants - accused. These
Panchsheel principles are extracted below:-
1. The circumstances from which the conclusion of guilt is to
be drawn should be fully established; [163D]
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and
tendency;[163G]
4. They should exclude every possible hypothesis except the
one to be proved; and [163H]
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. [164B]
13. Having noted these principles governing the case based on
circumstantial evidence, we now proceed to discuss the evidence
led by the prosecution to bring home the charges against the
accused-appellants.
14. The prosecution presented the following circumstances in its
endeavour to establish the charge of committing the murder and
causing the disappearance of evidence of the offence of murder
against the appellants.
15. The extra judicial confession being made by the appellant
Keshu and Phool Ji. The disclosure statement made by the
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (6 of 11) [CRLA-438/1993]
appellant leading to the recovery of skeleton, blood stained
clothes, pieces of bangles and ashes of burnt clothes, hair pin,
Kasiya etc. at the instance of the accused-appellants.
16. The prosecution heavily relied upon the the extra judicial
confession said to be made by the appellant Keshu and Phool Ji to
PW-1 Dev Shanker and alleged incriminating recoveries which
ultimately led to the conviction of the appellants. It is a cardinal
principle that an extra judicial confession must be accepted with
great care and caution. If found reliable and convincing then an
extra judicial confession may be used as a corroboration for other
evidence to record conviction of the accused. It is undisputed
that initially nobody suspected that the appellants have
committed the murder of Jassi and consequently missing
complaint was lodged by mother and father of the deceased
Jassi. The appellant came to be implicated only on 09.03.1990
i.e. when the appellant Keshu and Phool Ji allegedly made an
extra judicial confession to PW-1 - Deep Shanker.
17. Apparently, when no finger of suspicion was pointing towards
the appellants, they could not have any plausible reason to
abruptly go and make their confession as narrated in written
complaint - Exp.1. It is pertinent to mention that PW-1 Deep
Shanker around whom the whole story rotates has been declared
hostile and he did not support the facts mentioned in Exp.1 - the
written complaint and categorically stated that the accused-
appellants Keshu and Phool Ji never came to him nor they have
made any confession of murdering the deceased Jassi. Father and
mother of the deceased - Jassi PW-7 (Madhu) and PW-8 (Somi)
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (7 of 11) [CRLA-438/1993]
stated in their Court statement that one Poonam took away their
daughter Jassi from Ahmedabad. Father and mother of the
deceased Jassi talks about one Poonam who ran away with their
daughter before 'Navratri' and it is very strange that needle of the
investigation pointed out nothing about the said Poonam. It is
further stated by the parents of the deceased Jassi that Roopa
and Mangi Lal were known to them as they used to do some work
in Ahmedabad and have brotherly relation with their daughter.
Father, mother and brother of the deceased - Jassi and the other
witnesses examined by the prosecution did not give any
impression of animosity with the accused-appellants nor they cast
any suspicion on them. During the course of trial, PW-7 (Madhu)
and PW-8 (Somi) father and mother of the deceased did not utter
a single word of any animosity with the appellants - accused
otherwise also no plausible motive has been corroborated behind
the murder of the deceased - Jassi and on the same lines, PW-11
(Harish Chandra) turned hostile and disown the fact of any
confessional statement made by the accused-appellants Keshu
and Phool Ji to PW-1 (Deep Shanker), not only this, he
categorically stated that none of the articles were recovered in his
presence at the instance of the accused-appellants.
18. In this light, no circumstance or motive whatsoever was
imposed on the appellants for the murder of the deceased - Jassi
by any of the prosecution witnesses including the Investigating
Officer. Thus, evidently the appellants have no motive whatsoever
to commit the murder of the deceased - Jassi. Hence, the entire
prosecution story put forth regarding the extra judicial confession
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (8 of 11) [CRLA-438/1993]
allegedly made by the appellant accused Keshu and Phool Ji to
PW-1 Deep Shanker turns out to be false, as he has completely
denied the confession, thus, the same deserves to be discarded.
19. The other link in the chain of incriminating circumstances
relied upon by the prosecution is that of the recovery of the
skeleton alleged to be of the deceased - Jassi. It is pertinent to
mention that during investigation, no DNA test was conducted nor
any other scientific evidence was led to prove that the skeleton
was that of Jassi. In this backdrop, the skeleton, recovered
cannot be said to be of the deceased-Jassi.
20. As far as the other recoveries of the alleged murder weapon
i.e. Kasiya, hair pin, blood stained clothes, pieces of broken
bangles and ashes of burnt clothes are said to be recovered on
the basis of the disclosure statement made by the appellants. In
this regard, we have gone through the testimony of Investigating
Officer - Mukhtyar Khan (PW-15) and the statement of the
independent witness of recovery memo Exp. 11, 13, 14, 16, PW-4
(Khatu) and found that Investigating Officer has not given any
detail whatsoever regarding disclosure statement allegedly made
by the appellants. In addition thereto, PW-4 (Khatu) turned
hostile and stated that nothing was recovered at the instance of
the accused in his presence. The first and the basic infirmity in
the evidence of the Investigating Officer is that he had not
deposed the exact statement said to have been made by the
appellants which ultimately led to the discovery of the fact
relevant under Section 27 of the Indian Evidence Act.
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (9 of 11) [CRLA-438/1993]
21. Applying the above principle of law, we find that the
evidence of the Investigating Officer is not reliable and
trustworthy. In this backdrop, the Investigating Officer had not
made any statement that all the articles which were allegedly
recovered at the instance of the appellants were packed and
sealed on the spot and deposited in the 'Malkhana' .
22. During the course of trial, no 'Malkhana' register was ever
produced and exhibited nor the 'Malkhana' incharge was
examined. The recovery of alleged murder weapon Kasiya and
blood stained clothes of deceased - Jassi allegedly recovered at
the instance of the accused-appellants and claimed to be
forwarded to the FSL for forensic examination, but no FSL report
was ever produced in the Court.
23. At this juncture, it is pertinent to mention that as per
prosecution story, some of the clothes of the deceased Jassi were
destroyed by the appellants - accused and ashes of burnt clothes
was said to be recovered at the instance of the appellant -
accused. It seems to be against the common prudence that on
one side the appellants are much vigilant and destroyed the
clothes of the deceased Jassi which were her normal daily
wearing clothes and on the other side the alleged blood stained
clothes of the deceased Jassi were kept with them, it seems to be
highly improbable. In view of the aforesaid evidence of the
witness PW-14 (Surendra Kumar Sharma) likewise the evidence
of PW-8 (Somi), gives no assistance to the prosecution story.
24. In this case, the initial Investigating Officer Abhay Singh who
is said to have recovered the skeleton, arrested the accused-
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (10 of 11) [CRLA-438/1993]
appellants Keshu and Phool Ji is not examined without any
reasonable cause. No other evidence was led by the prosecution
to bring home the guilt of the accused-appellants as the
independent witness PW-2 (Narji), PW-3 (Vesta), PW-12 (Bheriya)
also turned hostile, therefore, we find that the prosecution has
failed to prove even one of the so called incriminating
circumstances attributed to the accused-appellants so as to
confirm the guilt. Hence, the conviction under Section 302 and
201 of IPC based solely on the circumstantial evidence such as
recovery of skeleton, blood stained clothes, hair pin, broken
pieces of bangles, ashes of burnt clothes is highly challenging and
raise a doubt about the fairness of the investigation especially
when most of the material witnesses turned hostile and the
person to whom the confession was made has also turned hostile.
So, the extra judicial confession looses its credibility. Likewise the
recovery of weapon or other incriminating items i.e. blood stained
clothes, hair pin etc. at the instance of accused-appellants is a
weak type of evidence and is not sufficient for sustaining a
conviction on its own. It must be corroborated by other
substantial evidence, so here in this appeal the chain of
circumstantial evidence is broken and incomplete, as the
suspicion against the appellant-accused however strong, cannot
replace legal proof. So the benefit of doubt is to be given to the
accused-appellants leading to an acquittal.
25. Thus, the prosecution has not been able to establish its case
beyond reasonable doubt that the appellant-accused had
committed an offence under section 302 and 201 of the IPC. In
(Uploaded on 14/10/2025 at 06:36:06 PM)
[2025:RJ-JD:44707-DB] (11 of 11) [CRLA-438/1993]
the result, we hold that the learned trial court has convicted and
sentenced the appellant accused Phool Ji, Keshu and Roopa under
Section 302 and 201 of the IPC upon erroneous appreciation of
evidence. As a consequence of the discussion made hereinabove,
the conviction of the appellant accused namely Phool Ji, Keshu
and Roopa and the order of sentence recorded by the trial Court
cannot be sustained.
26. Accordingly, the instant appeal is allowed and the impugned
judgment and order dated 22.05.1993 passed by the learned
Additional Sessions Judge, Banswara in Sessions Case No.83/93
is hereby quashed and set aside. The appellants are acquitted of
the charges under Section 302 and 201 of the IPC. They are on
bail, their bail bonds are discharged.
27. They need not surrender and set at liberty forthwith. In view
of the provisions of Section 437-A Cr.P.C./481 BNSS 2023, the
appellants are directed to furnish a personal bond amounting to
the sum of Rs.50,000/- and surety bond of the like amount
before the Registrar (Judicial) of this Court, which shall be
effective for a period of six months, to the effect that in the event
of special leave petition being filed against this judgment or on
grant of leave, the appellants aforesaid, on receipt of notice, shall
appear before the Supreme Court.
28. All pending applications stand disposed of. Record of the trial
Court be sent back forthwith.
(SANGEETA SHARMA),J (DINESH MEHTA),J
34-amit/-
(Uploaded on 14/10/2025 at 06:36:06 PM)
Powered by TCPDF (www.tcpdf.org)
