Rajasthan High Court - Jodhpur
Boota Singh vs State Of Rajasthan on 23 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:40880-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (DB) No. 20/2024
Boota Singh S/o Shri Natha Singh, Aged About 30 Years, R/o
Banni, Raniya P.s., Dist. Sirsa (Haryana). (Lodged In Dist. Jail,
Hanumangarh)
----Appellant
Versus
1. State of Rajasthan, Through Pp
2. Sandeep Kumar S/o Shri Krishan, R/o Ward No. 5,
Ratanpura, Tehsil Sangaria, Dist. Hanumangarh.
----Respondents
For Appellant(s) : Mr. Divik Mathur, Amicus Curiae
For Respondent(s) : Mr. C. S. Ojha, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
Judgment Reserved on : 10.09.2025
Judgment Pronounced on : 23.09.2025
Per Hon'ble Mr. Ravi Chirania, J.
1. Appellant Boota Singh has challenged the judgment dated
09.11.2023 passed by learned Special Judge, SC/ST Act Cases,
Hanumangarh in Sessions Case No.64/2020, whereby he was
acquitted of the charge as framed under Section 3(2)(v) of SC/ST
(Prevention of Atrocities) Act, 1989, however, he was convicted
with imprisonment for life for offence under Section 302 IPC with
a fine of Rs. 5000/-; in default of payment of fine, he was further
ordered to undergo three months' simple imprisonment.
2. Brief facts of the case are that a written report was lodged
by one Sandeep Kumar on 17.10.2020 with the SHO, Police
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Station Hanumangarh Railway Police (GRP), Hanumangarh
(Exhibit-P/1) stating that the accused Boota Singh killed his
father by hitting him with a glass bottle on his head and he tried
to take Rs.700/- from his pocket, when objected, the accused
further hit him with an iron rod, on account of which, his father
died on the spot. According to the complainant, PW-1, he was
informed the above facts by an eye-witness, PW-2, who is his
close friend, namely, Surya Prakash S/o Puran Singh. The contents
of the written report are reproduced as under:
Exhibit-P/1
"lsok esa
Jheku~ Fkkuk izHkkjh
jsyos iqfyl ¼th-vkj-ih-½
guqekux<
fo"k;%& eqdnek ntZ djds dkuquh dk;Zokgh djus ckcr~A
Jheku~ th] fuosnu gS fd eS çkFkÊ x‚o jruiqjk dk jgus okyk gwWA esjs
firk --".k iq= gjpUn tks fd i‚pos fgLls ij tehu dk'r djrs gSaA vkt
le; djhc 5-00 cts lk;a esjs firk --".k m|eflag pkSd ij lkeku ysus ds
fy, vk;s FksA rc mUgsa cwVkflag iq= Jh ukekywe fuoklh c.kh feyk ftlus esjs
firk --".k dks jksd dj mlus iSls ekaxs] esjs firk --".k us mls iSls nsus ls
badkj dj fn;kA bl ckr dks ysdj mudk vkil esa >xM+k gks x;kA rc
cwVkflag us esjs firk --".k ds flj esa dkap dh cksry ekjh] ftlls esjs firk ds
flj ls [kwu cgus yxkA fQj mlus esjs firk dh tsc ls 700@& :i;s fudky
fy;sA tc esjs firk us bl ckr dk fojksèk fd;k rks mlus esjs firk --".k ds
flj esa yksgs dh j‚M ekjh] ftlls esjs firk ?kk;y gksdj uhps fxj x;s vkSj
mUgksaus ne rksM+ fn;kA rc cqVkflag ogh ij 700@& :i;s QSd ogkW ls Hkkx
x;kA ;g lkjh ?kVuk lw;Z çdk'k iq= iw.kZpUn us viuh vk¡[kksa ls ns[kh gSA fQj
iqfyl dks lwpuk feyus ij iqfyl ekSds ij igqWphA fQj iqfyl us eq>s lqpuk
nhA eSa ekSds ij igqWpk rc lw;Z çdk'k us eq>s lkjh ?kVuk crkbZA
vc eSa nj[okLr nsus ds fy, vk;k gwWA cwVkflag us esjs firk ds flj esa dkap dh
cksry o yksgs dh j‚M ekjdj gR;k dj nh gSaA
vr% çkFkZuk&i= çLrqr dj fuosnu gS fd cwVkflag iq= ukekywe tkfr jk;fl[k
fuoklh c.kh ds f[kykQ eqdnek ntZ djds dkuwuh dk;Zokgh dh tkosA Jheku~
th dh vfr --ik gksxkA
fnukad%& 17@10@2020
izkFkhZ
,&,l
Mh&ch
lanhi dqekj iq= Jh d`".k
tkfr es?koky fuoklh
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okMZ ua-5 jruiqjk rglhy
laxfj;k ftyk guqekux<+
¼jkt-½
eks- 75688&46040
dk;Zokgh iqfyl
lh th-vkj-ih- Fkkuk guqekux<+ t- fn- 17@10@2020 le; 8-00 ih-,e-
laxfj;k
eu~ gSM dkfu- dY;k.key ua-19 vkenk lwpuk ij e; tkIrk ds Fkkuk ls jokuk
gksdj iqfyl Fkkuk laxfj;k igw¡pk Jheku~ Fkkukf/kdkjh egksn; Jh bUnz dqekj lh-
vkbZ- egksn; ls laidZ djus ij crk;k fd jsYos LVs'ku laxfj;k ds fdyksehVj
66@6 ij guqekux<+ lkbZM jsYos ykbZuksa ds chp e`rd d`".k dh yk'k le;
djhc 6-00 ih-,e- ij feyh Fkh ftldh ckn fofM;ksxzkQh o utjh eqvk;uk fd;k
tkdj ekspjh :e jktdh; fpfdRlky; laxfj;k esa j[kok nh xbZ gSaA rFkk e`rd
ds flj esa xEHkhj pksV vkdj [kqu tek gqvk gS rFkk ekSds ij e`rd ds iq= Jh
lanhi dqekj iq= Jh d`".k tkfr es?koky fuoklh okMZ ua-5 jruiqjk rglhy
laxfj;k esa mijksDr fyf[kr fjiksVZ is'k dh etewu fjiksVZ ls ekeyk tqeZ /kkjk 302
Hkk-n-l- o 3¼2½ 3(V A) ,l-lh-@,l-Vh- ,DV dk ?kfVr ik;s tkus ij gkykr
tfj;s nqjHkk"k vQljku ckyk dks fuosnu fd;k x;kA eu~ ,p-lh- ekSdk dh
dk;Zokgh esa e'k:Q gqvkA vkbZUnk Fkkuk igq¡p izdj.k ntZ fd;k tkdj vfxze
vuqla/kku i=koyh Jheku~ lh-vks- lkgc th-vkj-ih- o`Ùk chdkusj dh lsok esa izsf"kr
dh tkosxhA ch
,&,lMh&ch th&,lMh&,p
izHkkjh
th-vkj-ih- Fkkuk
guqekux<+
dSEi laxfj;k
dk;Zokgh iqfyl
bZ th-vkj-ih- Fkkuk guqekux<+ t- fnukad 18@10@2020 dks le; 1-46 ,-,e-
ij ifjoknh Jh lanhi dqekj iq= Jh d`".k tkfr es?koky fuoklh okMZ ua- 5
jruqijk ih-,l- lxfj;k ftyk guqekux<+ dh ceqdke iqfyl Fkkuk laxfj;k ij
is'k'kqnk fyf[kr mijksDr fjiksVZ ij izdj.k tqeZ /kkjk 302 Hkk-n-la- o 3¼2½ 3 (V
A) ,l-lh-@,l-Vh- ,DV esa ntZ fd;k tkdj ,Q-vkbZ-vkj- izfr;ka fu;ekuqlkj
tkjh dh xbZA rFkk rQrh'k gsrq ewy ,Q-vkbZ-vkj- Jheku~ lh-vks- lkgc th-vkj-
ih- o`Ùk chdkusj dh lsok esa izsf"kr gksxhA lh-lh-Vh-,u-,l- esa izfof"V ds i'pkr
izkIr ,Q-vkbZ-vkj uEcj i`Fkd ls vafdr fd;s tk;sxsA ,Q
th&,lMh&,p
izHkkjh
th-vkj-ih-
guqekux<+ t-"
3. On the said written report, FIR bearing No.20/2020 was
registered on 18.10.2020 at around 1:46 pm for offence under
Section 302 IPC and under Sections 3(2), 3(v) of the SC/ST
(Prevention of Atrocities) Act, 1989. The police conducted
investigation and arrested the accused. During investigation,
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statement of Surya Prakash, an eye-witness, were recorded under
Section 164 Cr. P.C., on 25.11.2020. On the basis of statements
of PW-1, PW-2 eye-witness Surya Prakash, recovery witnesses,
namely, PW-5, PW-6, PW-7 and Investigating Officer PW-9, the
learned trial court passed the impugned judgment dated
09.11.2023, by which the accused was punished as mentioned
above.
4. Co-ordinate Bench of this Court appointed Mr. Divik Mathur
as Amicus Curiae to argue the Suspension of Sentence Application
of the accused, however, while dismissing the Suspension of
Sentence Application, this Court directed the Amicus Curiae to
argue the main appeal. The matter was heard finally on 10.9.2025
and the judgment was reserved.
5. Learned Amicus Curiae Mr. Divik Mathur submitted that the
present appeal has been filed on various important grounds, as
mentioned in the memo of appeal, which would demonstrate that
the accused-appellant has been falsely implicated in the case. The
witnesses, as produced by the prosecution, failed to support the
story beyond reasonable doubt and further the alleged eye-
witness i.e. PW-2 was not present on the spot and, therefore, his
complete testimony is unreliable.
6. To begin with, learned Amicus Curiae submitted that PW-1
lodged the written report on 17.10.2020 stating that PW-2
informed him that the accused-Bhoota Singh killed his father by
hitting him on head with bottle and iron rod, upon which, he died
on the spot. According to the contents of complaint, the FIR as
registered and the statement of PW-1 as recorded by the trial
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court would clearly show that he is not an eye-witness of the
incident and whatever he stated in the complaint; FIR as well as in
his statement as PW-1 before the learned trial court are
completely based on the story as stated to him by PW-2 Surya
Prakash, who according to him has witnessed the incident.
According to Mr. Divik Mathur, testimony of PW-1 is not sufficient
to prove guilt of the appellant.
7. Learned Amicus Curiae further submitted that as complete
incident reported by PW-1 is based on the narration of PW-2,
therefore, the version of PW-2 needs to be deeply examined by
this Court. He informed this Court that, though, the complaint
dated 17.10.2020 (Exhibit-P/1) was lodged on the basis of the
information given by PW-2 to PW-1, however, the police in the
entire investigation which starts from 17.10.2020 upto
recording conclusion of the investigation did not record
statement of PW-2 under Section 161 Cr. P.C. After
completing the investigation but before submission of Final Report,
the police presented PW-2 before the learned Magistrate Court for
recording of his statement under Section 164 Cr. P.C. It is really
shocking and surprising that no effort was made to record
statement of the eye-witness at the first instance and
further producing him before the Magistrate court for the
statement under Section 164 Cr. P.C., (after one month &
08 days) creates serious doubt about the story of the
prosecution and completely destroys the basic foundation
of the prosecution story. The statement of PW-2 as recorded
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under Section 164 Cr. P.C., on 25.11.2020 is reproduced as
under :-
fnukad 17-10-2020 fd ckr gSA eSa esfMdy ij nokbZ ysus x;k FkkA Hkxrflag
pkSd ds ikl esfMdy LVksj gSA d``'.k esjs ikl vk;k] esjs ls iqNk D;k djus
vk;k gSA eSaus dgk dqN ugha nokbZ ysus vk;k gwaA fQj d`'.k ogka ls pyk x;kA
fQj FkksMh nsj esa] eSa nokbZ ysdj tkus yxk rks cqVk flag ogka vk;kA cqVk flag
dks eSa tkurk gwaA cqVk flag us d`'.k dks Åij okyh tsc ls iSls fudky dj
nqljh tsc esa Mkyus dks dgkA fQj cqVk flag us d`'.k fd tsc esa gkFk MkykA
d`'.k ls 200 :i, ekaxsA d`'.k us dgk eSa iSls ugha fudkyqaxkA cqVk flag us
d`'.k ds lj ij dkap dh cksry ekjhA fQj cqVk flag us d`'.k ds lj ij jksM
ekjhA fQj eSa ogka ls Hkkx dj iqy ds uhps cuh iqfyl pkSdh esa x;kA fQj eSaus
ogka tkdj iqfyl dks lkjh ?kVuk crkbZA eSaus iqfyl dks crk;k fd d`'.k dks
cqVk us cgqr ekjkA fQj eSa okfil ml txg x;k rks cqVk flag ogka ls Hkkx
x;kA
uksV % xokg us mDr c;ku i<+k;k o lquk;k x;k rks xokg us lksp le>dj
lgh gksuk Lohdkj fd;kA
8. A perusal of the above statement under Section 164 Cr. P.C.
(Exhibit-P/9) would show that the facts as stated by PW-2 is in
serious contradiction to the facts as mentioned by the complainant
in Exhibit-P/1. A perusal of Exhibit-P/9, the statement under
Section 164 Cr. P.C., shows that PW-2 informed the incident to the
police immediately on 17.10.2020, however, the police did not
register the complaint or the FIR on his version, which as per his
statement was given immediately. If the statement under Section
164 Cr. P.C., are to be believed, then the police should have
registered the FIR on 17.10.2020 immediately without
waiting for PW-1 to submit written report in respect of the
incident.
9. After referring to the statement of PW-2 recorded under
Section 164 Cr. P.C., (Exhibit-P/9), learned Amicus Curiae further
referred to his statement as recorded by learned trial court as
PW-2 on 06.01.2022. By referring to the statement, learned
Amicus Curiae submitted that this person in his examination-in-
chief stated that he informed PW-1 about the incident, however, in
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cross-examination he completely denies this fact. The
relevant line of cross-examination is "eSaus lanhi dks Qksu ugha
fd;kA"
10. Learned Amicus Curiae further submitted that a close
comparison of both the statements (as PW-2 & under Section 164
Cr. P.C.) would show that in the statement under Section 164 Cr.
P.C., PW-2 was in a state of fear and shock, whereas no such thing
can be noted in the statement recorded as PW-2. The statement of
PW-2 prima facie, if believed, would show that the accused and
the deceased went together from medical shop, which leads to the
impression that they were known to each other. The statement fail
to show any important fact so as to draw any inference of dispute
or fight due to which the appellant committed the alleged offence.
11. A perusal of cross-examination would further show that PW-2
witnessed the alleged incident from a distance of 200 Mtrs.
Practically it is not possible for any person to witness any
incident with naked eyes, with such a minute detail,
therefore, the version of PW-2 regarding the incident is
highly unreliable. PW-2 further stated in his cross-examination
that the accused is a person who is mentally not stable. Further
he is a beggar and usually roams near the railway station. The
complete testimony, as per learned Amicus Curiae fails to show
any motive available with the appellant to commit the alleged
heinous offence as neither PW-2 lodge the complaint nor the
police register case on his complaint. Further the police did not
record his statement under Section 161 Cr. P.C., and his statement
U/s.164 Cr. P.C., were recorded after one month and 08 days,
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despite the fact that PW-2 is an alleged eye-witness. This creates
serious doubt about the PW-2 being an eye-witness and,
therefore, the complete story of the prosecution is weak and
unreliable.
12. Learned counsel further submitted that from 17.10.2020 to
09.11.2020, PW-2 was completely missing in the investigation,
however, his presence was first time shown on record by
the Investigating Officer on Exhibit-P/8, the recovery
memo of alleged Rs.700/-, which the accused tried to
snatch from the deceased at the time of alleged incident.
Making PW-2 a witness to this memo only, further creates a
serious doubt about the story of the prosecution because as this
witness saw the complete incident where allegedly the
accused hit the deceased with bottle and iron-rod and then fled
away by throwing the iron-rod and rupees on the spot but in
none of the recovery memo or in other memos presence of
PW-2 was recorded, which sufficiently leads to a definite
conclusion that PW-2 was not an eye-witness and, therefore,
he was not present in the entire investigation. As per learned
Amicus Curiae as PW-1 is the close friend of PW-2, therefore, by
fabricating a story, he was presented as an eye-witness and story
was presented through him. Despite this unsuccessful effort, the
sheer absence of PW-2 has destroyed the complete foundation of
story of the prosecution.
13. Learned counsel further submitted that PW-5, PW-6 & PW-7
were presented as the recovery witnesses and admittedly none of
them witnessed the incident, however, all the Memos including the
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recovery memo were prepared either in the Police Station or in the
mortuary of the hospital, therefore, there are serious
contradictions and infirmities in the version of PW-5, PW-6 &
PW-7.
14. As per PW-6, the accused-appellant was arrested by the
police on the date of incident i.e. 17.10.2020. This fact can be
verified from the cross-examination where PW-6 stated "cwVk flag
dks ?kVuk okys fnu gh fxjQrkj dj fy;k Fkk vkSj mlh fnu gh cwVk flag dk iguk
gqvk pksyk iqfyl us cjken fd;k Fkk ftldh cjkenxh izn"kZ ih&27 gSA ". As per
this witness, the accused was arrested on 17.10.2020 itself,
however, the Arrest Memo (Exhibit-P/33) shows that the
accused was arrested on 19.10.2020 at around 2:12 pm.
When the accused was arrested on 17.10.2020 itself, then
showing his arrest on 19.10.2020 by Exhibit-P/30 declares that for
almost 48 Hours the accused was in illegal custody of the
police. By keeping the accused in illegal custody, complete
evidence were planted in the case.
15. Learned counsel further submitted that PW-2 stated that the
accused after hitting the deceased left the rupees on the spot,
however, when police reached the spot, it did not
seize/collect/ recover any such notes from the spot.
Learned counsel specifically pointed out that it is the police who
reached the spot much before the complainant PW-1,
however, still the money was not seized/recovered and no
such Memo in this regard was prepared. Interestingly, PW-1
who came on the spot much after the police, collected Rs.700/-
from the spot and kept the money in his pocket, which he handed-
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over the Investigating Officer on 9.11.2020 (Exhibit-P/8).
Exhibit-P/8 shows that PW-1 gave Rs.700/- to the
Investigating Officer informing that he collected the notes
from the spot on that date and today (on 9.11.2020) he has
handed-over to the I.O. This Recovery Memo, Exhibit-P/8,
prepared in respect of Rs.700/- further creates serious
doubt about the story of the prosecution because there is
no justification on record as to why these notes were not
seized by the police, though, it reached on the spot much
before the complainant. Further how PW-1 was able to
pick the notes when so many people were present on the
spot. Further, even if the money was picked, why it was
not given immediately to the Investigating Officer by PW-1.
This complete act of PW-1 declares the Recovery Memo
(Exhibit-P/8) as a fake document prepared to support the
story of the prosecution and also leads to a definite
conclusion that the I.O. failed to find motive and
involvement of the appellant in the alleged offence. Further
on the one hand, as per PW-1, the alleged offence was committed
by the accused for Rs.700/-, however, from 17.10.2020 to
09.11.2020 complete investigation was silent in respect of
recovery of Rs.700/-. The act of the Investigating Officer of
preparing Exhibit-P/8, after 22 days and showing recovery of
money completely reflects that he has tried to fill the serious
lacunas and gap in the investigation in the end, before
filing of the Final Report. This declares the complete
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investigation as faulty and involvement of the accused-appellant in
the case as seriously doubtful.
16. Learned counsel further submitted that PW-2 stated that the
accused hit the deceased with iron-rod which he left on the spot.
This iron-rod shown to have been recovered by the police in
Exhibit-P/25 as prepared on 20.10.2020 is in complete
contradiction to the fact that PW-6 stated in his cross-examination
that the accused was arrested on 17.10.2020 itself. Further as
Exhibit-P/25 was prepared in Police Station, therefore, the
recovery witnesses simply signed the papers without being
physically present on the spot. This fact, according to learned
Amicus Curiae also finds strength from an important fact that
PW-6 and PW-7 described different length of iron-rod. As per
PW-6, the length of iron-rod was 8-9 Feet, whereas as per
PW-7, it was 2.5-3 Feet. Such a vast difference in the
description of length of the rod leaves no doubt about the
fact that no such recovery was made in their presence.
17. As far as other recoveries are concerned, learned counsel
submitted that all the recoveries are fake, rather evidence were
planted by the police so as to show involvement of the accused in
the present case. The accused was arrested, as per the
testimony of PW-6, on 17.10.2020 itself, though arrest
memo shows 19.10.2020, and all the Recovery Memos were
prepared on 18.10.2020 and 20.10.2020.
18. Learned counsel further seriously questioned the site-plan
Exhibit-P/2 prepared on 18.10.2020. According to learned Amicus
Curiae the incident was allegedly witnessed by PW-2 Surya
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Prakash from Narendra Medical Store but there is no description
of presence of PW-2 and/ or Narendra Medical Store in the
site-plan wherefrom the alleged incident was witnessed.
Due to not mentioning the distance of Medical Store from where
PW-2 is stated to have witnessed the incident, complete veracity
of PW-2 comes under serious doubt and looses its significance. On
the basis of incorrect and insufficient site-plan (Exhibit-P/2) no
conviction can be made.
19. Learned counsel further submitted that all the Articles were
collected by the Investigating Officer on 18.10.2020 and
20.10.2020, as noted from Exhibit-P/32, however, for 8-10 days
these Articles without any justification and reason
remained at the Police Station. Learned Amicus Curiae said
that the possibility of tampering with the Articles cannot be
ruled out, more so, for the reason that when the arrest of the
accused itself is disputed on account of serious difference in the
date of arrest, as pointed out in the earlier paras. As the
samples remained in the Police Station for 8-10 days with
no justification, therefore, in absence of any justification
regarding the delay in submitting Articles to FSL, Jodhpur,
the same cannot be relied upon for the purpose of
recording conviction of the accused-appellant.
20. Learned counsel further pointed out that the report of FSL
(Exhibit-P/36) shows inconclusive report on the blood-stained
stone pieces, however, blood-group on the metallic rod is found to
have matched but as learned counsel pointed out that
possibility of tampering with the Articles cannot be ruled
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out, therefore, he disputed the complete FSL Report on the
ground being the Articles were seriously compromised in
the Police Station.
21. According to learned Amicus Curiae Mr. Divik Mathur, as
PW-2 himself made contrary statement in 164 Cr. P.C. statement,
and statement as PW-2 before the trial court, which are further in
contradiction with the complaint as reported by PW-1 on the basis
of his narration sufficiently proves that this person is not an
eye-witness, as PW-2 was only presented as an eye-witness as per
prosecution and the above submissions as made by him
sufficiently proves that there is no eye-witness of the
incident, therefore, the complete case is of circumstantial
evidence. The learned trial court has committed serious mistake
by ignoring serious contradictions and failed to note that the case
is only based on circumstantial evidence and consequently it failed
to follow the five golden principles of circumstantial evidence as
laid down in the case of Sharad Birdhichand Sarda vs. State of
Maharahstra reported in 1984 (4) SCC 116. The judgment of
Sharad Birdhichand Sarda (supra) was further followed by the
Hon'ble Supreme Court in the case of Ravishankar Tandon Vs.
State of Chhattisgarh, reported in 2024 SCC OnLine SC 526,
the relevant para whereof reads as follows :
"8. Undoubtedly, the prosecution case rests on circumstantial evidence. The
law with regard to conviction on the basis of circumstantial evidence has
very well been crystalized in the judgment of this Court in the case
of Sharad Birdhichand Sarda v. State of Maharashtra1, wherein this Court
held thus:
"152. Before discussing the cases relied upon by the High Court we
would like to cite a few decisions on the nature, character and essential
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proof required in a criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this Court
is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952
SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been
uniformly followed and applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v.
State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and
Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC
656]. It may be useful to extract what Mahajan, J. has laid down
in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129] :
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion
of guilt is to be drawn should in the first instance be fully
established, and all the facts so established should be consistent
only with the hypothesis of the (1984) 4 SCC 116 : 1984 INSC 121
guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show
that within all human probability the act must have been done by
the accused."
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 Maharashtra [(1973) 2 SCC
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793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] 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."
9. It can thus clearly be seen that it is necessary for the prosecution that the
circumstances from which the conclusion of the guilt is to be drawn should
be fully established. The Court held that it is a primary principle that the
accused 'must be' and not merely 'may be' proved guilty before a court can
convict the accused. It has been held that there is not only a grammatical
but a legal distinction between 'may be proved' and 'must be or should be
proved'. It has been held that the facts so established should be consistent
only with the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty. It has
further been held that the circumstances should be such that they exclude
every possible hypothesis except the one to be proved. It has been held that
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 probabilities the act must have
been done by the accused.
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10. It is settled law that suspicion, however strong it may be, cannot take the
place of proof beyond reasonable doubt. An accused cannot be convicted
on the ground of suspicion, no matter how strong it is. An accused is
presumed to be innocent unless proved guilty beyond a reasonable doubt."
22. In conclusion, learned Amicus Curiae submitted that the
complete case of the prosecution has serious flaws, lacks basic
foundation, based on circumstantial evidence and there are
serious contradictions in the testimony of material witnesses and
further prosecution failed to connect chain of evidence with
corroborative evidence to prove the guilt, therefore, the judgment
dated 09.11.2023 passed by the learned trial court deserves to be
quashed and the appeal filed by the accused deserves to be
allowed.
23. In response, learned Public Prosecutor Mr. C.S. Ojha
strongly countered the arguments as advanced by learned Amicus
Curiae. Learned Public Prosecutor submitted that no illegality was
committed by the Investigating Officer while conducting the
investigation and after fair investigation the charge-sheet was filed
against the accused and on the basis of the statement of
eye-witness, recovery witnesses and FSL Report, the trial court
rightly recorded conviction of the accused for the alleged offence
by judgment dated 09.11.2023. He also submitted that the
present case is based on testimony of eye-witness and, therefore,
same cannot be said to be based on circumstantial evidence,
therefore, there is no application of the judgment of Hon'ble
Supreme Court passed in the case of Sharad Birdhichand
(supra).
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24. Heard learned Amicus Curiae Mr. Divik Mathur at length and
learned Public Prosecutor Mr. C.S. Ojha. We may now deal with
the arguments as raised by learned Amicus Curiae in the further
paras.
25. Learned Amicus Curiae Mr. Mathur strongly questioned the
case of the prosecution as instituted on the basis of Exhibit-P/1
lodged by PW-1 alleging that the accused killed the deceased by
hitting with iron rod and glass bottle with the motive to snatch
Rs.700/-. As the complete narration of PW-1 is based on the
version/story narrated to him by alleged eye-witness Surya
Prakash, whose statements were recorded by the trial court as
PW-2 and, therefore, this witness as per learned Amicus Curiae is
not an eye-witness. This Court minutely examined report (Exhibit-
P/1) and noted that this report contains a specific averment that
PW-1 was informed about the incident by Surya Prakash, who
witnessed the incident and is an eye-witness. This Court is unable
to find the statement of eye-witness Surya Prakash (PW-2)
recorded under Section 161 Cr. P.C. by the police and after
searching entire record this Court is surprised to note as to why
the Investigating Officer did not record statement of the eye-
witness under Section 161 Cr. P.C., on whose version complete
case was instituted by the police. Though the written report was
lodged on 17.10.2020 by PW-1 but from 17.10.2020 to
25.11.2020 the eye-witness PW-2, was completely missing in the
investigation and further there was no effort on the part of the
Investigating Officer to record his statement under Section 161
Cr. P.C. or to show his presence in recovery and other Memos as
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he is the only witness who is stated to have witnessed the
incident. The fact of recording the statement of eye-witness
Surya Prakash under Section 164 Cr.P.C., by the Judicial
Magistrate on 25.11.2020 leads to a definite conclusion of this
Court that PW-2 Surya Prakash is not an eye-witness in the case.
If he was an eye-witness, then the FIR should have been
registered showing him as the complainant, as he reported the
incident first to the police as per statement of PW-1, which can be
easily verified from the statement of eye-witness Surya Prakash
recorded under Section 164 Cr. P.C., on 25.11.2020.
26. This Court further noted that on the one hand written report
of incident was lodged on 17.10.2020 on the version of the eye-
witness Surya Prakash but this person did not stay on the
spot when PW-1 reached on his call, rather he went to his
village after purchasing medicines from Medical Store.
Interestingly PW-2 stated in his cross-examination that he
did not call PW-1, which leaves no doubt about the fact
that he did not gave any information to PW-1 and,
therefore, the complete report as lodged by PW-1 is false
and baseless by which the accused-appellant was
implicated.
On the basis of the above discussion, this Court has reached
to a definite conclusion that the testimony of PW-2 is seriously
doubtful and he is not an eye-witness for the reason :-
i) PW-2 gave no hand written report to the police nor the FIR
was registered at his behest.
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ii) Though as per PW-1 the incident was informed to him by
PW-2 but PW-2 did not stay on the spot even after informing
the police.
Iii) PW-2 in his cross-examination stated that he did not
inform PW-1 and further after purchasing the medicine he
left for the village, though, he is close friend of PW-1.
iv) PW-2, an eye-witness as per the prosecution, was absent
in the entire investigation from 17.10.2020 to 09.11.2020
and then to 25.11.2020.
v) The police did not record statement of this alleged eye-
witness under Section 161 Cr. P.C., in the entire
investigation.
vi) The police tried to show the presence of PW-2 first time
on recovery memo Exhibit-P/8 dated 09.11.2020 (After 24
days and further statement of PW-2 were recorded after one
month and 08 days from the date of incident i.e.
17.10.2020) on 25.11.2020.
27. As PW-2 is not an eye-witness, according to this Court,
though, presented by the prosecution and strongly supported by
PW-1, therefore, this case is purely based on circumstantial
evidence, which has seriously been ignored by the learned trial
court while conducting the trial and passing the impugned
judgment dated 09.11.2023.
28. As noted in the previous paras PW-2 is not an eye-witness
and further PW-5, PW-6 & PW-7 are only recovery witnesses of the
Articles alleged to have been recovered in their presence by the
Investigating Officer on 18.10.2020; these witnesses have also
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failed to support the story of the prosecution by the recoveries for
the reason that PW-6 in his cross-examination stated that
the accused was arrested on 17.10.2020 (on the same
day), however, the arrest has been shown on 19.10.2020.
In between 17.10.2020 to 19.10.2020 complete evidences
were planted and recovery was shown on 18.10.2020 &
20.10.2020, which is completely doubtful and cannot be
believed as the accused was in illegal custody of the police
from the evening of 17.10.2020 to the noon of 19.10.2020.
As arrest of the accused was concealed in the record by the
police and by showing fake recoveries in presence of PW-5,
PW-6 & PW-7, the Investigating Officer made fruitless
effort to implicate the accused.
29. This Court is not satisfied the way the investigation has been
done in the case and the way recoveries have been shown by the
Recovery memos. The Recovery Memos are doubtful as PW-6 and
PW-7 failed to describe exact length of the iron rod as recovered
in the case, of which they are the witnesses, therefore, the
testimony of PW-1, PW-5, PW-6 & PW-7 is not reliable and the
learned trial court committed a serious mistake while recording
conviction of the accused on the basis of the testimony of these
witnesses.
30. Learned Amicus Curiae in his arguments seriously questioned
the site plan (Exhibit-P/2) prepared by Investigating Officer.
According to him, the site plan was prepared in Police Station and
presence of witnesses Bhim Singh and Brijmohan were shown. On
examining submission of learned Amicus Curiae regarding the site
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plan (Exhibit-P/2), this Court noted that as the complete incident
was witnessed by PW-2, who informed about all minute details of
incident to PW-1, the complainant, and further PW-2 witnessed
the incident from Narendra Medical Store, which is 200 Mtrs., from
the place of incident. The site plan (Exhibit-P/2) though contains
certain information and demarcation about certain things,
however, it nowhere discloses the location of Narendra
Medical Store and place where PW-2 was standing. By not
mentioning/ showing the presence of PW-2 by demarcation
and the Narendra Medical Store, the site plan (Exhibit-P/2)
cannot be said to be a document sufficient to explain the
incident. The site plan is an important document which explain
the case of the prosecution because the Courts cannot visit the
place of incident and, therefore, the site plan must disclose
complete information to understand the incident with the help of
detailed demarcation in it. As the important details regarding
presence of the complainant and Narendra Medical Store is
missing, therefore, we treat, Exhibit-P/2 insufficient to
prove the incident. On the basis of the above, the
conviction cannot be made in the present facts and
circumstances.
31. The Investigating Officer, PW-9 Narendra Singh, has not
acted in a fair manner and the complete investigation was not fair.
PW-1 on the basis of version of PW-2 alleged that the accused-
appellant committed the offence of snatching money from the
deceased, however, despite description of money being there in
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Exhibit-P/1, no effort was made by the Investigating Officer PW-9
to recover money.
32. This Court while considering submissions of learned Amicus
Curiae Mr. Divik Mathur finds his submissions to be correct as per
records that PW-1 acted in collusion with PW-9 so as to prove guilt
of the appellant. We record this finding on the basis that
PW-1 reached on the spot much after the police, however,
the police failed to recover Rs.700/- from the spot but the
same was collected from the spot by PW-1 even when the
spot was heavily crowded. There is no justification on
record of PW-1 collecting the money from the spot on
17.10.2020 and handing over to the Investigating Officer
and it is only when the conclusion was to be drawn,
recovery of money was shown by Exhibit-P/8 dated
09.11.2020, which is after more than 24 days. This Court
fails to find any reason on record of the trial court, as to why PW-1
kept the money with him for so many days and then handed-over
to the Investigating Officer. This act of PW-1 and PW-9
Investigating Officer Narendra Singh takes this Court to the
conclusion that the Investigating Officer even after complete
investigation failed to connect the accused in the case as PW-2
was not an eye-witness and missing in the entire investigation
and, therefore, to fill the lacunas and the serious holes in the
investigation he tried to fill the missing links, in which, as per the
record, was unsuccessful on to his part. As per PW-2 the accused
is a poor person who is nothing more than a beggar, who roams
around the railway station, cannot have any such motive to
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commit the alleged offence. The complete investigation is faulty
and the findings of the trial court are also erroneous as PW-2 is
not an eye-witness as recorded by us above, therefore, the trial
court was duty bound to follow the five golden principles of
circumstantial evidence as laid down by the Hon'ble Supreme
Court in the case of Sharad Birdhichand (supra), however, the
same has not been followed.
33. This Court concludes on the basis of above discussion, that
the prosecution has failed to prove the case beyond reasonable
doubt and failed to connect the chain of events with the support of
corroborative evidence to prove the guilt of the accused.
34. After reading the judgments and carefully considering the
submissions made by learned Amicus Curiae, learned Public
Prosecutor Mr. C.S. Ojha and evaluation of record of trial court
including the impugned judgment, this Court finds that the
learned trial court committed a serious mistake in passing the
impugned judgment dated 09.11.2023. Consequently, the appeal
filed by the accused-appellant deserves to be allowed and hence
the same is hereby allowed. The impugned judgment dated
09.11.2023 passed by the learned Special Judge, SC/ST Act
Cases, Hanumangarh in Sessions Case No.64/2020 is quashed and
set aside.
35. The appellant is in jail. He shall be released forthwith if not
required in any other case. The record of the trial Court be sent
back forthwith.
36. Keeping in view the provision of Section 437-A Cr.P.C./481
B.N.S.S., accused appellant is directed to furnish a personal bond
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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 he would be called
upon to do so.
37. This Court appreciate the efforts of learned Amicus Curiae
Mr. Divik Mathur, a young and energetic lawyer, who provided his
valuable assistance to this Court in the present case by supplying
brief notes and relevant judgments including strong arguments on
each and every factual and legal issue of the case at the time of
hearing.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
9-Sanjay Singh
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