State Of Rajasthan, Through Public Prosecutor v. Police Station Gandhisagar, District Mandsor

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment RESERVED ON PRONOUNCED ON : : 20/02/2025 21/02/2025 (PER BHUWAN GOYAL J.)

1. This is criminal leave to appeal under Section 419(i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 filed by the appellant-State against Judgment and Order dated 04.11.2023 passed by Additional Sessions Judge, Ramganjmandi, District Kota in Sessions Case No.07/2022, vide which accused-respondent was acquitted for the offence under Section 302/34 of I.P.C. by extending benefit of doubt.

2. Brief facts of the case in short are that on 06.07.2021, complainant - Sanwar Lal (P.W.1) submitted a written report (Ex.P/1) before the Police Station Ramganjmandi, District Kota to the effect that on 06.07.2021 at around 3.00 p.m., his nephew Brajesh received a call from his brother Raju's wife, namely, Durga [2025:RJ-JP:7642-DB] (2 of 5) [CRLLA-730/2024] Bai who told him that a quarrel had taken place and her uncle had suffered severe head injury and that someone hit him on the head, due to which he got injured. Then, Brijesh called him but the phone was switched off. Brijesh again called him in the morning at 7 O'clock and informed him everything. He and his nephew Brajesh Both came to Jhalawar Hospital and saw body of his brother Raju. He had a head injury and was bleeding profusely, which led to his death. He asked Raju's Laxmi about the incident, who told him that someone hit her father on the head at night, which caused a lot of bleeding. They brought her father to Jhalawar Hospital. The assaulter had assaulted her mother and her but they did not know him but can recognize him if he appeared before them. On the basis of said report, F.I.R. No.325/2021 (Ex.P/38) was registered for the offence under Section 302 of I.P.C. and investigation was commenced. After conclusion of investigation, police submitted separate charge- sheets against accused-respondent and her daughter (who was found minor on the date of incident) for the offence under Section 302/34 of I.P.C. before the concerned courts. The trial court framed charge against accused-respondent and trial was commenced. After conclusion of trial, the trial court has passed judgment and order dated 04.11.2023 acquitting accused- respondent for the alleged offence. Hence, this criminal leave to appeal has been preferred by the appellant-State.

4. Heard learned Public Prosecutor on admission. Learned Public Prosecutor has submitted that prosecution has produced cogent evidence on record and established [2025:RJ-JP:7642-DB] (3 of 5) [CRLLA-730/2024] commission of offence of murder of deceased by accused- respondent. This fact has been corroborated from the recovery of bloodstained weapon of offence i.e. Genti at the instance of the accused-respondent. The FSL Report available on record has also connected accused-respondent with commission of crime in the present case. But despite that the trial court has erred in not believing testimony deposed by the prosecution witnesses and evidence available on record in right perspective and has wrongly acquitted accused-respondent without any cogent reasons. He has, therefore, prayed that leave to appeal may be granted to the appellant-State.

5. We have considered arguments and have gone through impugned judgment and record of the trial court.

6. In the present case, it is an admitted position that neither there is any eye-witness of alleged incident of murder of the deceased Raju nor any witness of last seen evidence and the entire prosecution case rests upon the circumstantial evidence.

7. The law with regard to circumstantial evidence has been very well crystalised in the judgment of Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116. A close analysis of said decision would show that 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. (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, [2025:RJ-JP:7642-DB] (4 of 5) [CRLLA-730/2024] (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."

8. In the light of these guiding principles, let us examine the facts in the present case.

9. A perusal of the record reveals that accused-respondent was connected in this case on the basis of recovery of so-called weapon of offence i.e. Genti. A perusal of Ex.P/29 - recovery memo of Genti prepared by the police on 15.08.2021 in the presence of witnesses Abhishek (P.W. 10) and Sonu Sen (P.W. 8) shows that same is stated to have been recovered from a room belonging to the accused-respondent. However, it is an admitted position that so-called Genti has been recovered after almost one month and nine days of alleged incident and there is no evidence available on record that said room was in conscious possession of the accused-respondent and no other person was having any access to the place of recovery till it was recovered. Even, both witnesses to said recovery were police officials, who were subordinate to the Seizure Officer. There is no evidence on record that no independent witness was available at the time of recovery and that any independent villager refused to become a witness. Neither any rojnamcha regarding posting of these witnesses at the concerned police station was produced nor any rojnamcha or log- sheet of vehicle was produced on record to show that said witnesses went to the place of recovery on the relevant date. It is pertinent to note here that P.W. 9 - Ravi Gurjar, in whose field [2025:RJ-JP:7642-DB] (5 of 5) [CRLLA-730/2024] deceased was doing labour, had stated in his cross-examination that on the date of incident, accused-respondent had made a telephone call to him, upon which they reached the place of incident in the night. In his cross-examination, he had admitted that no stone or weapon was found at the place of incident and one Genti was lying there. From the statement of this witness, it had been established that so-called weapon of offence was lying at the place of incident and therefore, recovery of said Genti at the instance of accused-respondent after one month and nine days from the date of incident appears to be doubtful.

10. So far as F.S.L. Report (Ex.P/41) is concerned, a perusal of the recovery memo (Ex.P/29) reveals that there was no mention of any bloodstains found on so-called weapons of offence. A perusal of the FSL Report reveals that though, human blood was found on the said Genti but the result of blood grouping remained inconclusive and therefore, it cannot be said that blood found on the weapon of offence was of deceased and none else. Thus, from the above evidence available on record, the prosecution has not been able to prove recovery of weapon of offence at the instance of accused-respondent so also prosecution story beyond all reasonable doubt.

11. In view of the above discussion, this Court finds no ground to grant leave to appeal and same is hereby rejected. The Judgment and Order dated 04.11.2023 passed by the trial court is affirmed.

12. The record of the learned trial court be sent back forthwith. (BHUWAN GOYAL),J (NARENDRA SINGH DHADDHA),J INDER/