Shyam @ Chhanga Son Of Shri Vishambhar Dayal v. State of Rajasthan

14 complainant were witnesses of recovery memo. FIR No.11/1991 was registered at Police Station Shahjahanpur, Alwar. During investigation Shyamlal @ Chhanga and appellant were nominated as accused. Recovery of key of the lock of the shop was made at the instance of Shyamlal @ Chhanga. After filing the charge-sheet, charges were framed under Sections 302 and 380 IPC. In a statement recorded under Section 313 Cr.P.C., it was stated to be a case of false implication and trial was claimed. The [2025:RJ-JP:33122-DB] (3 of 9) [CRLA-569/1996] prosecution examined eighteen witnesses and exhibited thirty two documents. In defence, two documents were exhibited. The trial court on considering the facts and appreciating the evidence convicted the accused. Hence, the present appeal.

#4. Learned counsel for the appellant contends that the appellant was falsely framed. The identification parade was a sham. The appellant after being arrested was taken by the police to the house of PW-1 Dinesh Kumar where he had seen the appellant. The argument is that recovery of key of the lock was after three months that too from a mustard field. Reliance is placed upon the depositions of PW-6 Brahmprakash and PW-15 Devendra Kumar to argue that signatures of the recovery witnesses were taken on the blank paper by the police. The variation in the contents of the complainant PW-14 and deposition of PW-12 Balbeer Singh is relied to argue that it is doubtful as to who opened the shop.

#5. Learned Public Prosecutor submits that PW-1 Dinesh Kumar had last seen appellant with the deceased on the night of

15.01.1991. It is argued that the key of lock of the shop was recovered at the instance of Shyamlal. The woolen cap of appellant was recovered from the shop, it is fortified relying upon the testimony of PW-14 Amilal (complainant) that the woolen cap recovered from the shop belonged to appellant. The argument is that in identification parade, PW-1 Dinesh Kumar identified the appellant. Submission is that the evidence adduced proved the case of the prosecution. [2025:RJ-JP:33122-DB] (4 of 9) [CRLA-569/1996]

#6. Heard learned counsel for the parties and perused the record with their able assistance.

#7. The law is well settled that the last seen evidence is a weak evidence. Reference in this regard be made to the decision of the Supreme Court in the case of Padman Bibhar Vs. State of Odisha reported in [2025 INSC 751].

#20. “This Court in Kanhaiya Lal vs. State of Rajasthan has held that evidence on ‘last seen together’ is a weak piece of evidence and conviction only on the basis of ‘last seen together’ without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred:- “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.”

#8. It would be relevant to quote the relevant para of the judgment passed by the Supreme Court in Ramanand @ Nandlal Bharti Vs. The State of Uttar Pradesh in [2022 INSC 1075]:-

#1. Mark Twain, the great American writer and philosopher, once said: "It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances [2025:RJ-JP:33122-DB] (5 of 9) [CRLA-569/1996] together and judge for yourself whether the prosecution have established their case.”

#9. It is well settled that the case based upon circumstantial evidence is to be proved to an extent that there is no missing link in the circumstances which may result in creating a doubt on the case of the prosecution. In other words, a missing link in the circumstantial evidence proves fatal to the case of the prosecution. The Supreme Court in case of Ramreddy Rajesh Khanna Reddy & Anr. Vs. State of A.P. reported in [(2006)10 SCC 172] wherein the Court held:- “It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.”

#10. The case of the prosecution is based upon the last seen evidence, recovery of the woolen cap allegedly belonging to the deceased and the key of lock of shop recovered at the instance of the appellant.

#11. As per the contents of the complaint, on opening the shop after cutting the lock, the complainant found the deceased lying on a bench with a shawl wrapped like a noose around his [2025:RJ-JP:33122-DB] (6 of 9) [CRLA-569/1996] neck. There was glass on the table which smelled of liquor. The recovery by the police at the spot of crime was of a piece of mattress splattered with vomit of the deceased, a woolen cap and left over liquor in glass was sealed in a bottle. The seizure memo Ex.P.12 was made of the objects recovered from the scene of crime. After almost three months of the incident, the key of lock of the shop was recovered from the mustard field at the instance of Shyamlal. Ex.P.5 is recovery memo of the key.

#12. There were no injuries on the body of the deceased as per post-mortem report and the cause of death was to be determined after report of the chemical examination. The relevant portion of the FSL report Ex.P.30 is reproduced below:- “On chemical examination, the portions of viscera blood from heart (9) country made liquor (10) from packets marked B, C, A, D and A1 respectively gave positive tests for the presence of ethyl alcohol. Cuttings from piece of gadda (11) from packet marked B1 gave negative tests for metallic poisons, cyanide, alkaloids, barbiturates and insecticides.” FSL report was negative for tests of metallic poisons, cyanide, alkaloids, barbiturates and insecticides in the vomit of the deceased. The liquor sealed from the spot was found to be country-made liquor. There was presence of Ethyl Alcohol in the visceral blood of the deceased. Augmenting PW-2 Dr.Suresh Chand Meena opined the cause of death due to consumption of Ethyl Alcohol. [2025:RJ-JP:33122-DB] (7 of 9) [CRLA-569/1996]

#13. PW-1 Dinesh Kumar the star witness of the prosecution had seen the appellant and Shyamlal coming to the shop of the deceased. The shutter of the shop was openned and they entered with a liquor bottle. Thereafter, Shyamlal and appellant were seen coming out of the shop and locking it. PW-1 was threatened by the accused when asked about the deceased. Albeit, the appellant was identified by PW-1 in the identification parade but in column No.10 of identification report remarks are that the appellant after arrest was taken to the house of PW-1 for serving water and was shown to PW-1. This note erodes the reliability of identification parade.

#14. As per the complainant, a shawl was wrapped around the neck of the deceased but in the post-mortem report no mark of strangling was found on the neck. Another aspect to be considered is that neither in the panchnama nor in recovery memo there is mention of woolen shawl recovered from the body of the deceased.

#15. During the trial, it was put forth by the prosecution that deceased was killed by mixing a poisonous substance in the liquor. The case set up fell on face of it in view of FSL report Ex. P.30 wherein no poisonous contents were found in the vomit of the deceased.

#16. It has not been established that the key recovered at the instance of the appellant was tested with lock to ascertain that it was of same lock. [2025:RJ-JP:33122-DB] (8 of 9) [CRLA-569/1996]

#17. The recovery of the key at the instance of Shyamlal does not enhance the case of the prosecution to connect appellant with death of the deceased. The recovery was made after three months from the date of incident that too from a mustard field. Another angle is that, the complainant while deposing in cross-examination admitted that there were two keys of the lock of the shop.

#18. Further PW-6 Brahmprakash one of the witnesses to recovery of key Ex.P.5 and site plan of recovery Ex.P.4 has deposed that he was shown the key in the police station and that the site plan was not prepared in his presence. In his cross examination, he has clearly stated that no key was recovered in his presence and he did not go anywhere apart from the police station. The other witness of the recovery and site plan PW-15 Devendra Kumar has also stated that his signatures were taken on the blank papers and that no site plan was prepared in his presence. The deposition of PW-6 and PW-15 cast cloud over the recovery of the key and is fatal to the case of prosecution.

#19. The motive attributed for the incident was theft. List of stolen articles were given by the complainant but no stolen articles were recovered during investigation.

#20. The woolen cap recovered from the shop was projected to that of the appellant and reliance was placed on deposition of complainant PW-14 Amilal that the cap belonged to appellant. It would be apposite to mention that it was an ordinary cap easily available in the market, and PW-14 neither stated that the recovered cap belonged to the appellant nor samples from the cap [2025:RJ-JP:33122-DB] (9 of 9) [CRLA-569/1996] were taken for DNA examination to connect the appellant with the cap.

#21. There is also nothing on record that fingerprints were picked from the glass recovered from the shop.

#22. The prosecution failed to prove the case beyond reasonable doubt. The missing links in circumstantial evidence and lack of evidence connecting the appellant with the death of the deceased proved fatal to the case of the prosecution.

#23. The appeal is accepted and the judgment of conviction and order of sentence are quashed.

#24. Keeping in view the provisions of Section 481 BNSS, appellant Panga Alias Rajendra S/o Fateh Singh Jat is directed to forthwith furnish a personal bond in 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 with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave, appellant Panga Alias Rajendra S/o Fateh Singh Jat on receipt of notice thereof, shall appear before the Supreme Court. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Chandan/Himanshu Soni/84 Reportable:- Yes