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Rajasthan High Court – Jodhpur
Daliya vs State on 16 May, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:21967] (1 of 9) [CRLA-50/1995]
[2025:RJ-JD:21967]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 50/1995
Daliya S/o Shri Kaliya Neenama Adivasi, R/o Dhanakachari Police
Station Danpur, District Banswara (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Bhagat Dadhich
Mr. K.C. Sharma
For Respondent(s) : Mr. K.S. Kumpawat, Assistant to
Mr. Deepak Choudhary, AAG
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Order Reserved on : 06/05/2025
Date of pronouncement: 16/05/2025
This criminal appeal under Section 374(2) IPC has been
preferred against the judgment dated 18.01.1995 passed by
learned Sessions Judge, Banswara in Sessions Case No. 38/1994,
whereby the accused-appellant was convicted and sentenced for
the offences under Section 376 IPC as under :-
Offence Punishment Section 376 IPC Seven years simple imprisonment and fine
of Rs. 1,000/-. In default of fine, to undergo
three months simple imprisonment.
The concise facts of the case are that a First Information
Report was registered on the basis of written report filed by
complainant prosecutrix Smt. Sarda to the effect that on
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22.09.1993, when she alongwith her child went to collect green
beans, at that time, the accused Daliya forcibly took her to field
and committed rape with her. On raising cry, her brother-in-law
Jeewana came and accused ran away.
On the basis of aforesaid report, FIR was registered about
commission of offences punishable under Section 376 IPC. After
due investigation, police filed charge sheet against accused-
appellant for offence for offence under Section 376 IPC and case
was committed to the court of Sessions Judge where, the charges
were framed against the appellant. The prosecution examined four
witnesses in all. Statement of accused under Section 313 were
recorded. No witness was examined on defence side. After
conclusion of the trial, the learned trial Court convicted and
sentenced the appellant for offence under Section 376 IPC as
stated hereinabove.
Being aggrieved with the judgment and order passed by the
Trial Court, the accused-appellant has preferred this criminal
appeal before this Court.
Learned counsel for the accused-appellant submits that there
are material contradictions in the statement of the complainant
regarding the incident. It is argued that there is a gross delay in
lodging the FIR, which has not been explained by the complainant.
The incident is alleged to have occurred on 22.09.1993, whereas
the FIR was lodged on 25.09.1993. It is further argued that the
prosecutrix is a major lady, and during her cross-examination, she
admitted that a Banjhgada (panchayat) was held, and the accused
was asked to pay Rs.5,000/-, but the accused refused to pay;
therefore, the FIR was lodged. Counsel further argued that PW/2
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Jeewana, who allegedly reached the scene of occurrence soon
after the incident, has been declared hostile. Moreover, the
investigating officer was also not examined in this case to prove
the documents. Even the underclothes of the complainant were
not sent to the FSL for chemical examination. The trial court, in its
judgment, also observed that the role of the investigating officer
was very shoddy, and a copy of the order was sent to the Home
Department for initiating appropriate disciplinary proceedings.
Learned counsel for the accused-appellant, therefore, submits that
the conviction and sentence awarded to the accused-appellant by
the learned trial court vide the impugned judgment are
unsustainable in the eyes of law, as they lack, among other
things, proper appreciation of the evidence available on record,
especially regarding the charges and conviction under Section 376
IPC. Learned counsel placed reliance on the judgment of the co-
ordinate Bench of this Court in the case of Shiv Kumar v. State
of Rajasthan reported in 1993 RCC 427 and Prabhu Lal v.
State of Rajasthan reported in 2009 RAF (Raj.) 222.
learned Public Prosecutor appearing on behalf of the
respondent-State vehemently opposed the prayer made by
learned counsel for the accused-appellant and submitted that
there is no reason to disbelieve the prosecution evidence. He
argued that the learned Trial Court rightly convicted and
sentenced the accused-appellant. He prayed that the impugned
judgment and order passed by the Trial Court may be upheld and
that the sentence awarded to the accused-appellant be maintained
by this Court.
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I have considered the submissions of the learned counsel for
the accused-appellant as well as learned Public Prosecutor and
also gone through the entire record.
The incident is alleged to have occurred on 22.09.1993, with
the FIR being lodged on 25.09.1993. It is further contended that
during the intervening three days, a customary practice known as
“Bhanjgada” took place, wherein a specified amount of money is
paid to the husband of the woman by the person with whom she
purportedly had relations. However, the accused allegedly refused
to fulfill this customary obligation, prompting the complainant to
file a formal report.
In her testimony, PW/1 claimed that the accused had
committed rape upon her. She further stated that upon raising an
alarm, her brother-in-law, Jeewana, arrived at the scene.
However, PW/2, Jeewana, was declared hostile and did not
support the prosecution’s version of events. Notably, there is an
absence of medical evidence to substantiate the allegation that
the appellant forcibly committed rape upon the prosecutrix. The
clothes worn by the prosecutrix at the time of the incident were
not subjected to forensic analysis by the Forensic Science
Laboratory (FSL), which could have potentially provided crucial
evidence. Additionally, the investigating officer was not examined
in court to verify the documents or any other investigative details,
and no recovery of any incriminating material or property
attributable to the appellant was made. The prosecution has failed
to produce corroborative evidence that would support its case
beyond a reasonable doubt.
In the case of Yogesh and Ors. Vs. State of Haryana
reported in AIR 2021 SC 1904 the Hon’ble Supreme Court found
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that the prosecution’s case relied heavily on circumstantial
evidence and the testimony of witnesses, two of whom turned
hostile, and the third, the victim’s father, was not a credible
eyewitness. The court noted the lack of conclusive evidence
linking the appellants to the crime, such as the absence of forensic
evidence of sexual assault and unclear circumstances. Citing the
principles of circumstantial evidence from Sharad Birdhichand
Sarda v. State of Maharashtra, the court concluded that the
prosecution failed to prove the case beyond reasonable doubt. The
relevant para cited below:-
“20) The evidence on record discloses that out of three
witnesses, who were stated to be the eye-witnesses,
two witnesses, viz, PW12 Rajiv and PW15 Neeraj turned
hostile and did not support the case of the prosecution.
Both these 10 witnesses are close relations of the victim
and there is nothing on record to indicate that they
were either put under any pressure or that there was
any element of suspicion. Both these witnesses were
categorical that the persons who kidnapped the victim
were not before the Court in the capacity as the
accused.
21) We are thus left with the testimony of PW10 Manoj,
the informant and the father of the victim. The reporting
made by this witness, based on which the crime was
registered neither shows that he was an eye-witness to
the occurrence nor does it disclose that the identity of
the accused who had kidnapped the victim was in any
way known at the stage when the occurrence took
place. The statement given by the witness in his cross-
examination further discloses that he was sitting inside
the house when the incident had occurred and that the
shouts of the children and other passers-by had
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attracted his attention where after the witness came out
of the house. In the circumstances, it is extremely
difficult to accept PW10 to be an eye-witness to the
occurrence. The observations made by the High Court
while placing reliance on his version, in our view, were
totally incorrect. Thus, all three witnesses who were
claimed to be the eye-witnesses to the occurrence and
on whose testimonies, reliance was placed by the
prosecution, are of no help.
22) We now turn to the other circumstances on record
to see whether circumstances on record by themselves
are sufficient to bring home the guilt of the accused.
23) The law on the point of circumstantial evidence
cases is very clear and as laid down by this Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116, the well settled principles are as
under:-
“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.”
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(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.”
24) Certain salient features of the instant case are:-
(a) Though the post-mortem report discloses that the
victim was sexually assaulted, the FSL Report on record
does not establish any connection of the accused with
the sexual assault on the deceased victim.
(b) The dead body of the victim was found lying in an
open field.
(c) The record is again not clear as to when the present
appellants were arrested and how and in what manner
their disclosure statements led to the recovery of the
dead body.
25) There are of course circumstances like recovery of
clothing apparel as well as tiffin box etc. belonging to
the victim. However, such recoveries by themselves, in
the absence of any other material evidence on record
pointing towards the guilt of the accused, cannot be
termed sufficient to hold that the case was proved
beyond reasonable doubt. Not only those circumstances
are not conclusive in nature but they also do not form a
cogent and consistent chain so as to exclude every
other hypothesis except the guilt of the appellants.”
The fundamental principle in criminal jurisprudence
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mandates that the prosecution bears the burden of establishing
the guilt of the accused beyond a reasonable doubt. While it is
incumbent upon the State to prove its case, it is equally
imperative that the evidence presented forms an unbroken chain
linking the accused to the commission of the offence. The
evidence must be such that it leaves no room for reasonable
doubt regarding the accused’s guilt. In this case, there exists a
significant doubt as to whether the occurrence, as narrated by the
prosecution, actually took place. The absence of corroborative
material, such as medical evidence, forensic reports, or recovery
of incriminating items, weakens the prosecution’s case
considerably.
The prosecution’s failure to establish a direct connection
through tangible evidence–such as the absence of forensic
examination of the clothes worn by the prosecutrix or any
recovery from the appellant–raises serious questions about the
credibility of the allegations. The testimony of PW/1 alone,
especially in the absence of supportive evidence and with PW/2’s
hostile stance, cannot suffice to prove the guilt of the accused
beyond a reasonable doubt. Therefore, considering the totality of
the circumstances, the chain of evidence remains incomplete and
unconvincing. The reasonable doubts arising from the lack of
corroborative and forensic evidence lead to the conclusion that the
prosecution has not sufficiently proved its case. Consequently, the
presumption of innocence in favor of the accused must prevail,
and the appellant is entitled to the benefit of doubt.
Consequently, this appeal succeeds and is allowed. The
judgment dated 18.01.1995 passed by learned Sessions Judge,
Banswara in Sessions Case No. 38/1994, is hereby quashed and
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set aside. The appellant is acquitted from the charges of offence
framed against him, on a benefit of doubt. The appellant is on
bail; he need not surrender. His bail bonds stand discharged
accordingly. Record of the learned court below be sent back
forthwith.
Keeping in view, however, the provisions of Section 437-A
Cr.P.C. the accused appellant is directed to forthwith furnish
personal bond in the sum of Rs.50,000/- and a surety bond in the
like amount before the learned trial court within a period of one
month, which shall be effective for a period of six months to the
effect that in the event of filing of Special Leave Petition against
the judgment or for grant of leave, the appellant, on receipt of
notice thereof, shall appear before Hon’ble Supreme Court.
(MANOJ KUMAR GARG),J
82-BJSH/-
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