NON­REPORTABLE   IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISIDICTION

CRIMINAL APPEAL NO(s). 2059 OF 2013

STATE OF RAJASTHAN ….Appellant(s)

VERSUS

MAHESH KUMAR @ MAHESH  DHAULPURIA & ANR. ….Respondent(s)

WITH

CRIMINAL APPEAL NO(s). 2060 OF 2013

J U D G M E N T

Rastogi, J.

1. These appeals have been filed by the prosecution assailing

the judgment of the High Court of Rajasthan dated 3rd January,

2012 acquitting the respondents charged for the offences under

Sections 302, 201 read with Section 34 IPC.

2. As per case of the prosecution, on 19th October, 2002 in the

morning at 12.30 p.m., the informant Abdul Haq gave a written

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report that in the intervening  night  of 18th  and  19th  October,

2002, while he was sleeping in his railway quarter situated at

Borkheda Culvert near the railway line, Kota at about 12.05 a.m.,

one Madan Bheel and Parmanand Bheel came to his quarter and

woke him up and stated that the dead body of  one unknown

person  was lying  beneath the culvert at 916/8.10  km of the

railway line, Kota (Rajasthan).  Thereupon, he reached there and

saw that dead body had injuries on its head, mouth and face.  On

inquiry, Smt. Saroti Bai Bheel disclosed that sometime before she

woke up for urinating, she saw two­three persons coming by an

auto rikshaw, who had placed the said body on the railway line

and had gone away.   One person who was standing there

revealed that the said dead body was of Bajranglal, retired

Constable.  From the facts of the report made by informant Abdul

Haq, the Police Station Incharge reached at the spot and found

an offence under Sections 302, 201 read with Section 34 IPC.

This report was sent with Shri Fazlur Rehman, Head Constable

for registering a case to Police Station Nayapura, Kota.

3. Crime No.  679/02 was registered by the Head Constable

and First Information Report was sent to the Police Station In­

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charge.  Thereafter, the investigation was done and charge­sheet

was submitted against the respondents Mahesh Kumar, Dinu @

Deendayal and Bhaiya @ Devkaran in the Court of Magistrate.

Learned Magistrate handed over the case to the Sessions Court,

Kota  from where  it  was  transferred to the Court  of  Additional

Sessions Judge, No. 2, Fast Track, Kota.

4. The prosecution in support thereof produced 25 witnesses

and got exhibited Exhibit P­1 to P­45 in its documentary

evidence.  Thereafter, the  statements  of the respondents  were

recorded under Section 313 of Code of Criminal Procedure, 1973.

In defence, DW­1 Rajendra Singh was produced and the

statements of prosecution witnesses Pratap and Bhupendra

recorded under Section 161 of Code of Criminal Procedure, 1973

were relied as Exhibit D­1 and D­2.

5. The learned Sessions Judge, based on the material available

on record, held all  the respondents guilty under Sections 302,

201 read with Section 34 IPC and sentenced them to undergo

imprisonment for life along with fine, which came to be

challenged by the respondents in Appeal under Section 374 of

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the Code of Criminal Procedure, 1973 before the Division Bench

of the High Court of Rajasthan, Jaipur Bench, Jaipur.

6. On appraisal of the records, the High Court in its impugned

judgment dated 3rd  January,  2012 recorded a  finding  that  the

chain of circumstantial evidence produced by the prosecution is

very doubtful, contradictory and not reliable at all.  At the same

time, it was also observed that most of the prosecution witnesses

were declared hostile and many important and relevant witnesses

without any reason has not been produced by the prosecution.   

7. Dayaram and Gulab, who identified the dead body of the

deceased Bajranglal and who lifted the dead body from the

railway  track and kept in  side  have  not  been produced.  The

Samdhi of deceased  Bajranglal and  Brijgopal, father of PW­5

Rajeshbai were not produced.  That apart, the witnesses alleging

the  reason  for  murder  Surendrasingh,  Ramgopal,  Ramswarup,

Girraj  Gupta,  Premchand and Shyambabu were not  produced.

The motive of the incident which is allegedly the illicit relation of

Sulochana and respondent­Mahesh, the said Sulochana has not

been produced as prosecution witness.  The witnesses of Memos

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Exhibit P­13, P­15, P­41, etc. Dilipsingh have not been produced.

Witness  Hemraj of  Memos Exhibit P­30, P­35 and P­36 and

witnesses  Manoj, Vijay of  Memo  Exhibit P­41 have not been

produced.   Fazlur Rahman, Police Head Constable who took the

written report Exhibit P­24 and gone to the Police Station and on

his written report, FIR was registered, has not been produced.

The aunt of Ramesh who along with PW­2 Narendra is alleged to

have  gone to  Rajesh has  not  been produced.  The  witness  of

Exhibit  P­20 Bharatram, Rais  Mohammad, Surendrasingh and

Brijgopal have not been produced.   The witness Balak @

Mansingh and Imam of the Memo of Arrest of the accused Exhibit

P­26, P­27, P­28 and P­32 have not been produced.

8. It has further been observed that the prosecution failed to

tender any justification that all the three respondents were

arrested on 19th  October, 2002 at 11.30 p.m. but why

proceedings of the recoveries were undertaken after gap of 3 to

10 days, i.e., on 23rd, 25th, 26th  and 29th October, 2002.   It has

also been pointed out by the High Court that the Investigating

Officer in his statement has recorded that no blood marks were

found in the auto, which could not establish that the auto as

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alleged was carrying  the body of  deceased to  the railway  line.

PW­1 Madan Bheel and PW­4 Parmanand Bheel were declared

hostile and PW­5 Smt. Rajeshbai, daughter­in­law of the

deceased, in cross­examination, deposed that whatever she had

told earlier with respect to the incident was hearsay and has not

supported the prosecution.

9. It reveals from the record that  most of the prosecution

witnesses have been declared hostile and the statement of

witnesses produced suffer from serious material contradictions.

In the light of statements of prosecution witnesses suffering from

material deficiencies,  the High Court arrived at  the conclusion

that the circumstantial evidence  produced  by the  prosecution

appears to be doubtful, contradictory and is not safe to rely upon

and acquitted the respondents from charge under Section 302,

201 IPC and released them from judicial custody under its

impugned judgment dated 3rd January, 2012.

10. It is well settled that in the cases of circumstantial evidence,

the circumstances  from which the conclusion of  guilt is to be

drawn should in the first instance be fully established, and all

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the facts so established should be consistent only with the

hypothesis of guilt of the accused.  The circumstances should be

of a conclusive nature and should be such as to exclude every

hypothesis but the one proposed to be proved.   In other words,

there must be a complete chain of evidence 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

and none else.

11. The enunciation of law pertaining to circumstantial

evidence, its relevance and decisiveness, as a proof of charge of a

criminal offence, is amongst others traceable decision of this

Court in  Sharad Birdhichand Sarda  Vs.  State of

Maharashtra 1984(4) SCC 116.  The relevant excerpts from para

153 of the decision is assuredly apposite:­

“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

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“may be” established. There is not only a grammatical but a  legal distinction between “may be proved” and “must  be  or  should  be  proved”  as  was held  by  this Court in Shivaji Sahabrao Bobade & Anr. Vs.  State of Maharashtra [(1973) 2 SCC 793 where the observations were made:

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict  and  the  mental  distance  between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say,  they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

12. It has been further relied by this Court in Sujit Biswas Vs.

State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs.

State of Haryana  2015(11) SCC 43 and has been propounded

that while scrutinising the circumstantial evidence, it is the duty

of the Court to evaluate it to ensure the chain of events clearly

established and completely to rule out any reasonable likelihood

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of innocence of the accused.   It is true that the underlying

principle  whether the  chain is complete  or  not, indeed  would

depend on the facts of each case emanating from the evidence

and  there  cannot  be  a  straitjacket formula which can be laid

down for the purpose.   It is always to be kept in mind that the

circumstances adduced when considered collectively, must lead

only to the conclusion that there cannot be a person other than

the accused who alone is the perpetrator of the crime alleged and

the circumstances must establish the conclusive nature

consistent only with the hypothesis of the guilt of the accused.

13. On analysis of  the overall fact situation, we find that the

High Court in its impugned judgment has elaborately considered

the circumstantial evidence which has been adduced by the

prosecution and arrived to the conclusion that many important

and relevant witnesses have not been produced by the

prosecution on which a detailed reference has been made in para

23 of the impugned judgment which we consider it appropriate to

quote:­

“23. It has also to be mentioned that in the case many important and relevant witnesses the prosecution has not produced.  As has been mentioned

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above that the  dead  body  of the  deceased  at  which place has been found, that the person who identified it has the dead body of  Bajranglal there has not  been produced.  Dayaram and Gulab who  lifted the  dead body from  the railway track  and kept in  side those Dayaram and  Gulab also have not been produced. According to  P.W.5  Rajeshbhai  Rameshchand  to  her and her father  gave information of the  death of  her father­in­law  Bajranglal, this Ramesh has not been produced.   The  Samdhi of deceased  Bajranglal and Brijgopal, father  of  P.W.  5  Rajeshbai  have  not  been produced who are also the witnesses of Exhibit P.20, P.21 and P.25 Memos.   According to prosecution the witnesses alleging the reason for murder Surendrasingh, Ramgopal, Ramswarup, Girraj Gupta, Premchand and Shyambabu have not been produced. The owner of the Auto Rickshaw Sobhagsingh has not been produced.   The  motive of the incident,  which relation  of  Sulochana  and Mahesh  has  been  alleged that Sulochana has not been produced.  The witnesses of Memos Exhibit P.13, P.15, P.41 etc.  Dilipsingh has not been produced.  Witness Hemraj of Memos Exhibit P.30, P.35 and P.36 an witness Manoj Vijay of Memo Exhibit P.41  have  not been  produced.   That  Fazlur Rahman Police Head Constable also has not been produced who taking written report Exhibit P.24 had gone to the police station and on this getting written the F.I.R. Exhibit P.44 and taking that had come back to S.H.O. at the site.  P.W.2 Narendra taking with him the aunt of Ramesh is alleged to have gone to Rajesh. This aunt of Ramesh has not been produced.  Witness Madrasi, Bhoorsingh, Shambhusingh Kaushi etc. shown in the site plan Exhibit P.25 the dead body lying have not been produced.   The witness of Exhibit P.20 Bharatram, Rais Mohammad, Surendrasingh and Brijgopal have not been produced.  The witness Balak @ Mansingh and Imam of the Memo of arrest of the accused Exhibit  P.26,  P.27,  P.28 and P.32 have not been produced.”       

14. After hearing learned counsel for the parties and after

perusal of the impugned judgment and material of the case on

record, we are of the considered view that the prosecution has

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failed to complete the chain  of events leaving  any reasonable

ground for the conclusion consistent with all human probability

that the act must have been done only by the respondents.

15. We find  no  error  being committed  by the  High  Court in

arriving to the conclusion as aforesaid noticed by us in the

impugned judgment dated 3rd January, 2012.

16. Consequently, both the appeals are wholly devoid of merit

and accordingly dismissed.

17. Pending application(s), if any, also stand disposed of.

…………………………..J. (INDIRA BANERJEE)

………………………….J. (AJAY RASTOGI)

New Delhi July 16, 2019

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