HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal (DB) No v. State of Rajasthan through Public Prosecutor

complaint received from Man Singh Meena, FIR No.156/2013 was registered on 26.03.2013 under Sections 302, 120B IPC and 3/25 of the Arms Act, 1959. The complainant stated that Mishri Lal Jatav informed that on 25.03.2013 at 5:15 pm he along with Akheram (hereinafter referred to as ‘deceased’) were coming from railway crossing on the motorcycle of the deceased and on the way the deceased met appellant, his wife, son and wife of the son. Mishri Lal told the deceased that he would walk back home and the deceased along with the appellant moved towards the house of the appellant on the motorcycle. The complainant was informed by Kapoor Chand that he had seen the deceased with the appellant at the house of the appellant. The deceased did not return home as per his schedule, then the complainant sent Rajesh and Jagram in search of the deceased and they saw the bike of the deceased parked outside the house of the appellant. Both these persons heard the noise of the gunshot from the house of the appellant and saw the appellant fleeing towards the farm on motorcycle, waiving country made pistol (‘hereinafter referred to as ‘katta’). On receiving the information, the complainant along with Prakash, Lekhram and Shivram went to the house of the appellant where they saw the dead body of the deceased lying in the house of the appellant in face up position. The deceased had fire arm injury on the left eye. The complainant stated that the deceased was pressing upon appellant for recovery of Rs.20,000/-.

2.1 On an information given by the appellant u/s 27 of the Indian Evidence Act, 1872 (for short ‘the Act’), katta having empty [2025:RJ-JP:35010-DB] (3 of 13) [CRLAD-173/2020] shell of the cartridge in it was recovered from the house of the appellant hidden under the fodder (tuda) in the room. The recovery memo dated 29.03.2013 is Ex. P.10 and the site plan is Ex. P.7. After filing of the challan, charges were framed against the appellant u/s 302, 120-B IPC, 3/25 and 7/27(3) of the Arms Act and against Smt. Mishra Devi (wife of the appellant) u/s 302/120-B and 120-B IPC. The prosecution examined twenty one witnesses and exhibited forty nine documents to prove the case. In the statement recorded u/s 313 Cr.P.C., the appellant denied the allegations and claimed to be innocent. In defence, five documents were exhibited. The trial Court after considering the facts and appreciating the evidence convicted the appellant and acquitted Mishra Devi. Hence, the present the appeal.

3. Learned counsel for the appellant submits that there was no eye witness to the incident. No motive was attributed for killing the deceased. The recovery of katta and empty shell of the bullet is clouded with doubt due to variation of place of recovery as stated by the recovery witnesses PW-4 Prakash and PW-14 Shivram. It is argued that police had information from the appellant with regard to two kattas but there is no mention of second katta.

3.1 Learned counsel relies upon the decisions of Supreme Court in cases of Inderjit Singh and Anr. vs. State of Punjab reported in AIR 1991 SC 1674 and Satish Kumar vs. The State of Himachal Pradesh reported in 2020 INSC 251 to fortify the contention that in absence of the eye witness of the incident, the accused cannot be convicted relying upon uncorroborated circumstantial evidence. Raja Khan vs. State of [2025:RJ-JP:35010-DB] (4 of 13) [CRLAD-173/2020] Chattisgarh reported in 2025 INSC 167 is relied to argue that recovery u/s 27 of the Act cannot be relied upon till the requirements of the section are fulfilled.

4. Learned Public Prosecutor contends that the dead body was recovered from the house of the appellant. Further, katta and the empty shell were recovered at the instance of the appellant from his house. The FSL report is to the effect that the recovered empty shell and bullet extracted from the head of the deceased was fired from the recovered katta. Contention is that the deceased was killed by the appellant for insisting to pay back his money. The submission is that the prosecution had proved the case beyond reasonable doubt against the accused.

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

6. It is settled proposition of law that in case of circumstantial evidence the chain of events must be complete and that every hypothesis must be excluded. The circumstances must show the act was done only by the accused. The Supreme Court in case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 held: “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 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. 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 and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [2025:RJ-JP:35010-DB] (5 of 13) [CRLAD-173/2020] “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 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 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.” [2025:RJ-JP:35010-DB] (6 of 13) [CRLAD-173/2020]

7. This proposition of law was reiterated by the Supreme Court in the case of Jabir & Ors. Vs. State of Uttarakhand, 2023 SCC OnLine SC 32.

8. PW-7 Mishri Lal and PW-12 Kapoor Chand are the last seen witnesses produced by prosecution. Mishri Lal had taken lift on the motorcycle of the deceased and on the way when the deceased went along with the appellant, thereafter Mishri Lal walked his way back. PW-12 Kapoor Chand had offered the deceased to come to his place but the deceased who was talking to the appellant stated that he had some work and would come later.

9. PW-11 Jagram and PW-13 Rajesh Kumar sent by complainant to look for the deceased saw the motorcycle of the deceased parked outside the house of the appellant. They heard noise of the gun-shot from the house of the appellant and saw the appellant fleeing from the spot on a motorcycle wielding katta and threatening to kill them. Both the witnesses withstood cross-examination and supported the case of the prosecution.

10. On the disclosure made by the appellant u/s 27 of the Act, katta having empty shell of the cartridge was recovered from the house of the appellant. In recovery memo and the site plan of the place of recovery, PW-4 Prakash and PW-14 Shivram are the witnesses.

11. The postmortem of the deceased was conducted on

26.03.2013 and the report is Ex. P.15. The cause of death as per medical board was shock as injury on vital organ as eye-ball and brain by bullet injury. As per the report, bullet extracted from the [2025:RJ-JP:35010-DB] (7 of 13) [CRLAD-173/2020] head of the deceased and the tissue from bullet injury were sealed for sending to FSL.

12. FSL report Ex. P.46 is to the effect that the recovered katta was a serviceable firearm; the residues on part of the recovered katta showed that it was fired; on microscopic examination, it was concluded that empty shell of the cartridge recovered and the soft round copper jacketed bullet extracted from the head of the deceased were fired from the recovered katta; and the tissue taken from the injured eye of the deceased had shown presence of residues of combustion product of powder, result of projectile fired from the firearm.

13. The FSL report proved that the bullet extracted from the body and the empty shell of the cartridge recovered at the instance of the appellant were fired from katta got recovered by the appellant from the room of his house.

14. From the spot of incident the blood smeared cotton, clothes and shoes of the deceased were seized vide recovery memo Ex. P.12, Ex. P.6 and Ex. P.8 respectively and these were sent to FSL. As per the report, these articles were stained with human blood. On shirt and undershirt blood-group of the stains determined was ‘B’.

15. PW-1 Man Singh Meena (complainant) supported the case of prosecution by deposing that the deceased was killed by the appellant for pressing for the recovery of Rs.20,000/-. Further that dead body of deceased was lying in the house of appellant.

16. The argument that there was no motive for the appellant to kill the deceased is ill founded. The evidence adduced by prosecution proved monetary dispute between the appellant and [2025:RJ-JP:35010-DB] (8 of 13) [CRLAD-173/2020] the deceased. The reliance on the deposition of PW-1 Man Singh Meena (complainant) that there was no enmity between the deceased and the appellant is noted to be rejected. The portion of the statement that there was no enmity between appellant and deceased cannot be read in isolation. It cannot be lost sight that it was specifically stated by the complainant that deceased had to recover Rs.20,000/- from the appellant and this amount was being pressed for.

17. The testimony of PW-7 Mishri Lal and PW-12 Kapoor Chand prove that the deceased was last seen with the appellant. It is trite law that the last seen evidence albeit, is a weak piece of evidence but can form foundation for conviction if corroborated with other evidence. Reference is made to decision of Supreme Court in case of Ram Gopal S/o Mansharam vs. State of Madhya Pradesh reported in 2023 INSC 133 wherein, it was held: “9. In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.”

18. The challenge to the recovery of katta and the empty cartridge shell, relying upon the contradictions in the deposition of [2025:RJ-JP:35010-DB] (9 of 13) [CRLAD-173/2020] PW-4 Prakash and PW-14 Shivram (witnesses to the recovery memo), is of no avail for the appellant. The recovery witnesses have not denied their signature on the recovery memo. PW-14 Shivram gave the details of the place of recovery of katta and empty cartridge. PW-4 Prakash deposed that katta was recovered from latrine of the house of the appellant but at the same time stated that he was not remembering as to whether any other katta was recovered from the house of the appellant. Minor variations in the deposition are bound to come with passage of time.

19. The contention of the counsel for the appellant that there was no eye-witness to the incident of appellant firing upon the deceased does not enhance the case of the appellant. The prosecution proved beyond reasonable doubt:- (i) that there was a monetary dispute; (ii) the testimonies of PW-7 Mishri Lal and PW- 12 Kapoor chand prove that the deceased was last seen with the appellant and the testimonies of PW-11 Jagram and PW-13 Rajesh Kumar corroborated the last seen evidence; (iii) the weapon of offence i.e. Katta was recovered from the house upon the information given by the appellant; (iv) the PMR and the FSL corroborate that cause of death was gunshot injury; and (v) the ballistic report is that bullet extracted from the body and the empty shell of cartridge was fired from the katta recovered. The prosecution was able to complete chain of events to prove guilt of the appellant.

20. There cannot be quarrel with the proposition that conviction can be on the basis of circumstantial evidence on completion of chain of events beyond reasonable doubt by prosecution and the [2025:RJ-JP:35010-DB] (10 of 13) [CRLAD-173/2020] accused cannot be acquitted only for the reason that there was no eye witness. In Ramanand @ Nandlal Bharti Versus State of Uttar Pradesh reported in AIR 2022 Supreme Court 5273, it was held:- "46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: 1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved." 47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard." (emphasis) [2025:RJ-JP:35010-DB] (11 of 13) [CRLAD-173/2020]

21. Another angle needs to be considered is that Section 106 of the Act can be invoked on discharge of initial onus by prosecution of prima facie establishing the guilt of the accused. Reference is made to the decision of the Supreme Court in case of Ravi vs. State of Punjab reported in (2025) 3 SCC 584 wherein, it was held: “21. The above argument may appear to be of some substance but if we look into the law deeply, we would find that the initial burden is upon the prosecution to first prima facie establish the guilt of the accused and then only the burden shifts upon the accused to explain the circumstance as contemplated by Section 106 of the Evidence Act. 22. A three-Judge Bench of this Court in Anees v. State (NCT of Delhi) has elaborately considered the principles of law governing the applicability of Section 106 of the Evidence Act and has held that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. The ordinary rule which applies to criminal trials and places the onus on the prosecution to prove the guilt of the accused, does not, in any way, stand modified by the provisions contained under Section 106 of the Evidence Act. The said provision cannot be invoked to make up the inability of the prosecution to produce the evidence of circumstances pointing to the guilt of the accused. The said provision cannot be used to support a conviction unless the prosecution has discharged the onus by proving all elements necessary to establish the offence. 23. In other words, the prosecution does not stand absolved from its initial liability to prove the offence and it is only when such an onus is discharged and a prima facie case of guilt is made out that the provisions of Section 106 of the Evidence Act may come into play.”

22. In case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681, it was held: “Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In [2025:RJ-JP:35010-DB] (12 of 13) [CRLAD-173/2020] view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”

23. The prosecution in the case in hand proved the chain of event beyond reasonable doubt to establish the guilt of the accused and the burden shifted upon the accused to offer a plausible explanation of dead body of deceased having been recovered from the house of the appellant. The appellant failed to put-forth explanation either in Section 313 Cr.P.C. statement or by leading defence evidence. The prosecution discharged onus of establishing the foundational facts that the appellant has committed offence and in such circumstance silence of the appellant with regard to dead body found in his house shall not absolve the appellant from the burden casted by Section 106 of the Act.

24. In all fairness we should deal with the judgment of Raja khan (supra) relied upon by the counsel for the appellant to contend that the recovery not having the pre-requisites of Section 27 of the Act cannot be relied upon. The relevant portion of the judgment is quoted below:- “20. The essential ingredients of Section 27 of the Evidence Act are three fold: i. The information given by the accused must led to the discovery of the fact which is the direct outcome of such information. ii Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. [2025:RJ-JP:35010-DB] (13 of 13) [CRLAD-173/2020] iii. The discovery of the facts must relate to the commission of such offence.”

25. The three essential requirements are fully satisfied in the present case. The information given by the appellant led to discovery of katta and empty cartridge used in the incident. The information is distinctly connected with the recovery and is admissible against the appellant. The discovery of katta and the empty cartridge relate to commission of the offence.

26. On considering the facts and after re-appreciating the evidence in appeal, the judgment of conviction and order of sentence are affirmed. The trail court rightly concluded that the prosecution proved beyond reasonable doubt the prerequisites for conviction u/s 302 of IPC and section 3 of the Arms Act and no case is made out for interference in the judgment of conviction and order of sentence

27. The appeal is dismissed.

28. Record be returned to the trial court forthwith. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Simple Kumawar/Riya/07 Reportable : Yes