Rajasthan High Court – Jodhpur
Smt. Badami Bai vs Bheema And Ors (2025:Rj-Jd:33814-Db) on 29 July, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:33814-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 582/2002
State of Rajasthan
----Appellant
Versus
1. Bheema son of Dola Gurjar aged 50 years resident of Pasund
P.S. Rajnagar District Rajsamand
2. Mal Chand son of Shri Modi Ram Gurjar resident of Koyal -
presently residing at village Sewali P.S. Rajnagar District
Rajsamand
3. Paras Ram son of Nathu Gurjar resident of Pasund P.S. Raj
Nagar District Rajsamand.
----Respondents
Connected With
D.B. Criminal Revision Petition No. 259/2002
Smt. Badami Bai widow of Late Sh. Mohanlal(deceased) resident
of Boraj Ka Kheda, P.S. Rajnagar, District Rajsamand.
----Appellant
Versus
1. Bheema son of Dola Gurjar, resident of Pasund, P.S. Rajnagar,
District Rajsand.
2. Mal Chand son of Modi Ram Gurjar, resident of Village Koyal,
at present Sevali, P.S. Rajnagar, District Rajsamand.
3. Paras Ram son of Nathu Gurjar, resident of Pasund, P.S.
Rajnagar, District Rajsamand.
4. The State of Rajasthan
----Respondents
For State(s) : Mr. Vikram Singh Rajpurohit, PP
For Respondent(s) : Mr. Chandan Singh Jodha
Mr. Rajiv Bishnoi for Mr. Vineet Jain,
Sr. Adv.
Mr. Surendra, Amicus Curie
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON’BLE MR. JUSTICE SANJEET PUROHIT
Order
Reportable
29/07/2025
Per, Hon’ble Mr. Sanjeet Purohit, J:
1. The present appeal under Section 378 Cr.P.C. (by the State
of Rajasthan) as well as the Criminal Revision Petition under
Section 401 Cr.P.C. (by Smt. Badami widow of deceased-Mohan)
have been preferred while assailing the validity and propriety of
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[2025:RJ-JD:33814-DB] (2 of 14) [CRLA-582/2002]judgment dated 14.12.2001 passed by the learned Additional
District and Sessions Judge (Fast Track) Rajsamand in Sessions
Case No.94/2001 whereby the learned trial Court has acquitted
the accused-respondents for offences punishable under Sections
Facts of the case:
2. The facts germane to the present case are that on
06.11.2000 at around 11:00 PM, a written complaint was
submitted by respondent Mal Chand S/o Shri Modi Ram Gurjar
stating therein that around 6:00 PM his brother-in-law deceased-
Mohan S/o Lalu Gurjar came and requested to come along with
him to meet Nathu Ji at Karatwas to have some social discussion
and receive some payment. Thereafter, the complainant and
deceased went to Karatwas on deceased’s Motorcycle and after
having necessary talks, at around 8:15 PM started back for home.
At around 9:00 PM, while returning back through the forest area,
they found that the road was blocked and thus, deceased Mohan
stopped his motorcycle. Suddenly 2-3 persons who have covered
their faces ran towards them and the complainant being
frightened, jumped from motor cycle and ran away. The said
persons attacked deceased Mohan with sticks. It is further stated
that the complainant ran to village and brought few villagers on
tractor. After reaching on the site they found that deceased Mohan
has died on spot.
3. On the basis of said complaint, FIR No.233/2000 dated
06.11.2000 was registered at Police Station Kunwariya, District
Rajsamand against unknown persons for offence punishable under
Section 302 IPC. The investigating agency carried out the
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[2025:RJ-JD:33814-DB] (3 of 14) [CRLA-582/2002]
investigation and filed charge sheet against three accused persons
i.e. Bhima S/o Dola, Paras Ram S/o Nathu as well as complainant
Malchand S/o Modi Ram.
4. Post framing of charges, the learned trial Court proceeded
with the trial wherein the prosecution examined 21 witnesses and
exhibited 65 documents. The statement of accused respondents
were recorded under Section 313 Cr.P.C. wherein they denied the
commission of offence by them and stated that they were falsely
implicated in the case. Three defence witnesses were also
examined during trial.
5. The learned trial Court post considering the entire record
vide its judgment dated 14.12.2001 concluded that the
prosecution has failed to prove the case beyond reasonable doubt
while specifically observing that the entire prosecution story is
based on doubts and there had been various missing links in the
story of prosecution. The learned trial Court vide its judgment
dated 14.12.2001 acquitted the respondents.
Arguments on behalf of the appellant-State;
Petitioner-widow of the deceased :
6. Learned Public Prosecutor argued that the learned Court
below has not appreciated the entire evidence and material
available on record in its true spirit and has proceeded to
disbelieve the prosecution story in a pre-determined manner.
Learned Public Prosecutor further argued that although it is a case
of circumstantial evidence but the prosecution has been able to
establish the complete chain and there was no missing link
whatsoever. It has also been contended that the prosecution
witnesses have clearly established the motive and intention on the
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part of the accused persons. As well as, while referring to the
recovery of the weapons been made by the investigating agency
upon the information of accused persons, the learned Public
Prosecutor has argued that the said recoveries clearly establish
the link between the motive and execution of the commission of
crime by the accused persons.
7. Learned counsel for petitioner, while extending the said
arguments asserted that witnesses PW2 Dalu, PW4 Badami Bai,
PW 16 Pratapi Bai and other witnesses have specifically deposed
the background facts regarding prevailing dispute and animosity
which clearly establishes the motive on the part of the accused
persons and committing murder of deceased Mohan. He, thus
argued that the testimony of all the witnesses remained
uncontroverted and there was no inconsistency whatsoever in
their testimony. It was thus submitted that learned trial Court has
committed grave error of law in acquitting the accused-
respondents.
Arguments on behalf of the accused-respondents:
8. Per contra, learned counsel for the respondents, while
supporting the judgment passed by the learned trial Court, has
argued that the judgment impugned is perfectly valid and a
reasoned one and the learned trial court has rightly appreciated
the evidence and the material available on record. It was further
stated that the learned trial Court has also recorded a specific
finding that the present case was an outcome of faulty and laconic
investigation by the investigating agency and the prosecution has
failed to connect the dots to establish the guilt beyond all
reasonable doubt.
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[2025:RJ-JD:33814-DB] (5 of 14) [CRLA-582/2002]
Learned counsel for the accused-respondents argued that
the learned court below has rightly taken into consideration that;
(i) the prosecution witnesses during their examination-in-
chief have only tried to explain probable motive behind
commission of offence by the accused, however, they have
specifically stated that on the basis of said probabilities they have
doubts that the offence has been committed by the accused
persons;
(ii) the learned trial court has further rightly found that the
unexplained delay of six months in effecting the recovery of
weapons from the accused-persons is clearly fatal to the
prosecution story;
(iii) the learned Court below has recorded positive finding
that even as per the evidence of prosecution witnesses, it is clear
that there was clear conflict of interest amongst the accused
persons with regard to the land of deceased and therefore, it
cannot be presumed that the accused person have proceeded with
the common intention and conspired to commit the alleged
offence against deceased Mohan;
(iv) the learned court below has further rightly observed that
the FSL report (Ex. 55) also clearly shows that no blood stains
were found on the weapons so recovered during the investigation
and there were no links to connect the accused respondents with
the alleged crime;
(v) lastly it has been submitted that when there appears
clear doubts in the story of prosecution, it would not be justifiable
to interfere with the findings recorded by the learned trial Court as
the learned trial Court has not misconstrued or misread the
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evidence available on record, rather has rightly appreciated the
entire evidence in holistic manner. It was thus prayed that the
impugned judgment be upheld and the appeal as well as revision
petition deserve to be dismissed.
9. We have heard learned counsel for the parties and
scrutinized the record.
Analysis and reasoning-
(I) Circumstantial Evidence –
10. Having heard the learned counsel for the parties, it is clear
that the entire case of the prosecution stands on circumstantial
evidence. It is settled proposition of law that where the case of
prosecution rests entirely on circumstantial evidence, the chain of
events must be complete and that every hypothesis must be
excluded but the one proposed ought to be proved and such
circumstances must show the act has been done by the accused
within all human probability.
11. The law with regard to conviction on the basis of
circumstantial evidence has very well been crystalised by the
Hon’ble Supreme Court in the case of Sharad Birdhichand
Sharda v. State of Maharashtra reported in (1984) 4 SCC
116, wherein it was held as under :
“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
[(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(Downloaded on 05/08/2025 at 09:17:45 PM)
[2025:RJ-JD:33814-DB] (7 of 14) [CRLA-582/2002][(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 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 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.”
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12. It can thus clearly be seen that it is necessary for the
prosecution that the circumstances from which the conclusion of
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 the one where the accused is guilty. 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.
13. It is settled law that the suspicion, however strong it may be,
cannot take the place of proof beyond reasonable doubt. An
accused cannot be convicted solely 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.
14. In Ramanand @ Nandlal Bharti Versus State of Uttar
Pradesh, reported in AIR 2022 Supreme Court 5273, in the
context of circumstantial evidence, the Hon’ble Supreme Court
held as under:-
“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:
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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.”
15. In Karakkattu Muhammed Basheer versus The State of
Kerala reported in 2024(10) SCC 813, in the context of
circumstantial evidence, the Hon’ble Supreme Court held as
under:-
“11. Thereafter, the above principles have been reiterated in
the subsequent judgments of this Court and hold the field till
date.
Thus, these basic established principles can be
summarized in the following terms that the chain of events
needs to be so established that the court has no option but to
come to one and only one conclusion i.e. the guilt of the
accused person. If an iota of doubt creeps in at any stage in the
sequence of events, the benefit thereof should flow to the
accused. Mere suspicion alone, irrespective of the fact that it is
very strong, cannot be a substitute for a proof. The chain of
circumstances must be so complete that they lead to only one
conclusion that is the guilt of the accused. Even in the case of a
conviction where in an appeal the chain of evidence is found to
be not complete or the courts could reach to any another
hypothesis other than the guilt of the accused, the accused
person must be given the benefit of doubt which obviously
would lead to his acquittal. Meaning thereby, when there is a(Downloaded on 05/08/2025 at 09:17:45 PM)
[2025:RJ-JD:33814-DB] (10 of 14) [CRLA-582/2002]missing link, a finding of guilt cannot be recorded. In other
words, the onus on the prosecution is to produce such evidence
which conclusively establishes the truth and the only truth with
regard to guilt of an accused for the charges framed against
him or her, and such evidence should establish a chain of
events so complete as to not leave any reasonable ground for
the conclusion consistent with the innocence of accused.”
16. The above mentioned proposition of law has recently being
reiterated by he Hon’ble Supreme Court in the case of Jabir &
Ors. Vs. State of Uttarakhand, 2023 SCC OnLine SC 32 also.
17. In the light of these guiding principles, we will have to
examine the present case.
18. The circumstances which have been relied on by the
prosecution are – (i) the motive on the basis of prevailing land
dispute and (ii) the recovery of weapons upon the information of
accused-respondents.
19. The evidence of prosecution witnesses more specifically
PW2 -Dalu, PW4-Badami, PW16-Pratapi and PW17-Lalu who are
close relatives of deceased Mohan shows that said witnesses
though tried to explain the ongoing land dispute as motive behind
the murder of deceased Mohan, however, in their examination-in-
chief itself have specifically averred that due to the said dispute
they have doubts that the offence has been committed by the
accused-respondents. In view of the settled position of law
discussed supra, the prosecution had to establish its story beyond
all reasonable doubt whereas in the case in hand the entire case
set up by the prosecution was solely based upon the probabilities/
doubts being expressed by the family members of the deceased.
20. The prosecution has further tried to connect the accused-
persons with the crime on the basis of recovery of weapons being
made allegedly upon the information of the accused-persons.
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However, the record clearly shows that the alleged offence was
committed on 6.11.2000, whereas the informations from the
accused regarding location of weapons were collected on
20.04.2001 i.e. after a lapse of around 6 months and thereafter
the weapons such as kulhadi, knife and kasiya were recovered on
21.04.2001 and 22.04.2001 through Ex. 43, 53 and 55
respectively.
The investigating officer Nahar Singh PW10 has failed to give
any justifiable explanation regarding the delay of six months being
caused in recovery of the weapons. The said witness has further
failed to explain as to when the clothes, ornaments of deceased as
well as the soil samples were being collected in the month of
November 2000, why the same were sent for FSL after a lapse of
around six months on 16.05.2001. The said unexplained delay
clearly create serious doubts regarding the reliability of the
recoveries made during the investigation.
21. A bare perusal of the FSL report Ex.65 clearly show that no
blood was detected upon the weapons i.e. Kulhadi & knife and
with regard to Kasiya, the report suggested that it was not found
sufficient for the test. In this view of the matter, it is clear that
even the recovery so made during the investigation has failed to
create connecting link between the offence and the accused-
persons.
22. Although the prosecution witnesses while explaining the fact
of prevailing land dispute, has tried to suggest common intention/
motive between the accused persons for committing the offence
against deceased Mohan. However, by merely perusal of said
story, it can be gathered that the accused persons themselves
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[2025:RJ-JD:33814-DB] (12 of 14) [CRLA-582/2002]
have conflict of interest against each other with regard to their
desire/claim over the land of deceased Mohan. None of the
witnesses have deposed any previous meeting of mind of the
accused-persons for committing the crime against deceased
Mohan and therefore, neither there were suitable circumstances
nor there was direct evidence of any conspiracy being hatched by
the accused-respondents for the said offence.
23. In view of the discussions made, the chain of circumstances
has not been sufficiently proved by the prosecution in the present
case. Thus, the trial Court was justified in granting the benefit of
doubt and acquitting the accused.
(II) Consideration in Appeals Against Acquittal:
24. The Hon’ble Supreme Court, in the case of H.D. Sundara &
Ors. v. State of Karnataka, reported in (2023) 9 SCC 581,
while considering the principles to be kept in mind during the
hearing of an appeal against acquittal, summarized the legal
position as under:
8. In this appeal, we are called upon to consider the legality
and validity of the impugned judgment rendered by the High
Court while deciding an appeal against acquittal under
Section 378 of the Code of Criminal Procedure, 1973 (for
short, ‘Cr.P.C.’). The principles which govern the exercise of
appellate jurisdiction while dealing with an appeal against
acquittal under Section 378 of Cr.P.C. can be summarised as
follows: –
8.1 The acquittal of the accused further strengthens the
presumption of innocence;
8.2 The Appellate Court, while hearing an appeal against
acquittal, is entitled to re-appreciate the oral and
documentary evidence;
8.3 The Appellate Court, while deciding an appeal against
acquittal, after re-appreciating the evidence, is required to
consider whether the view taken by the Trial Court is a
possible view which could have been taken on the basis of
the evidence on record;
8.4 If the view taken is a possible view, the Appellate Court
cannot overturn the order of acquittal on the ground that
another view was also possible; and(Downloaded on 05/08/2025 at 09:17:46 PM)
[2025:RJ-JD:33814-DB] (13 of 14) [CRLA-582/2002]8.5 The Appellate Court can interfere with the order of
acquittal only if it comes to a finding that the only conclusion
which can be recorded on the basis of the evidence on
record was that the guilt of the accused was proved beyond
a reasonable doubt and no other conclusion was possible. ”
25. The Hon’ble Apex Court in the case of State of Madhya
Pradesh vs. Phoolchand Rathore reported in 2023 CriLR 724,
while observing that courts are generally reluctant to interfere
with an order of acquittal, recognized that such interference is
warranted when it becomes evident that the acquittal was based
on an entirely flawed reasoning process, legally erroneous, and
involved a perverse approach to the facts of the case. In such
circumstances, where the order of acquittal has led to a grave and
substantial miscarriage of justice, the Court may reverse the
acquittal and convert it into a conviction. In support of this
principle, the Court relied upon its prior judgments, emphasizing
the exceptional nature of such interference to rectify substantial
errors in the acquittal order. these are:-
“21. In State of M.P. & Others v. Paltan Mallah & Others, (2005) 3
SCC 169, reiterating the same view it was observed:
“8. … This being an appeal against acquittal, this Court would be
slow in interfering with the findings of the High Court, unless
there is perverse appreciation of the evidence which resulted in
serious miscarriage of justice and if the High Court has taken a
plausible view this Court would not be justified in interfering with
the acquittal passed in favour of the accused and if two views are
possible and the High Court had chosen one view which is just
and reasonable, then also this Court would be reluctant to
interfere with the judgment of the High Court.”
22. In a recent decision rendered by this Court in Basheera
Begam v. Mohd. Ibrahim & Others, (2020)11 SCC 174, it was
observed:
“190. … Reversal of a judgment and order of conviction and
acquittal of the accused should not ordinarily be interfered
with unless such reversal/acquittal is vitiated by perversity. In
other words, the court might reverse an order of acquittal if
the court finds that no person properly instructed in law could
have upon analysis of the evidence on record found the
accused to be “not guilty”. …”
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[2025:RJ-JD:33814-DB] (14 of 14) [CRLA-582/2002]
26. Taking guidance from the above-mentioned judgment, it is
clear that the prosecution has failed to establish that the
judgment of acquittal suffers from any perversity or is based on a
misreading of the material available on record. Furthermore, this
is not a case where no other reasonable view is possible. In fact,
in the present case, the view pointing towards the guilt of the
accused is weak and improbable, whereas the alternative view
favouring the accused is much stronger and more plausible.
27. Thus, upon considering the entire record, we find that there
is no infirmity in the judgment passed by the learned Trial Court
dated 14.12.2001. Accordingly, the order of acquittal is upheld,
and the appeal as well as revision stand dismissed.
(SANJEET PUROHIT),J (MANOJ KUMAR GARG),J
68-69-Neha/-
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