Rajasthan High Court – Jaipur
Shyam @ Chhanga Son Of Shri Vishambhar … vs State Of Rajasthan … on 21 August, 2025
[2025:RJ-JP:33122-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No.569/1996
1. Shyam @ Chhanga Son Of Shri Vishambhar Dayal
(Expired), Resident Of Jat Behror, Police Station
Mundawar, District Alwar Rajasthan
2. Panga Alias Rajendra Son Of Fateh Singh Jat, Resident Of
Jat Behror, Police Station Mundawar District Alwar
Rajasthan
----Appellants
Versus
State of Rajasthan through PP
----Respondent
For Appellant(s) : Mr.Sunil Shekhawat, Adv. with
Mr.Aditya Raj, Adv.
Mr.Mohit Balwada, Adv.
For Respondent(s) : Mr.Jitendra Singh Rathore, PP &
Mr.Sudesh Kumar Saini, P.P.
HON’BLE MR. JUSTICE AVNEESH JHINGAN
HON’BLE MR. JUSTICE BALJINDER SINGH SANDHU
JUDGMENT
21/08/2025
AVNEESH JHINGAN,J:-
This appeal was preferred by Shyam @ Chhanga and Panga
@ Rajendra against the judgment dated 30.09.1996 passed by the
Additional Session Judge, Behror, District Alwar in Sessions Case
No.88/1992, convicting the accused-appellants under Section 302
IPC. Vide order of even date, the appellants were sentenced life
imprisonment and fine of Rs.1,000/- was imposed. In default of
payment of fine, to further undergo six months simple
imprisonment.
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2. During pendency of this appeal, Shyam @ Chhanga
expired and the appeal was abated qua appellant No.1–Shyam @
Chhanga on 22.09.2015. The appeal survives for Panga @
Rajendra (hereinafter referred to as ‘appellant’).
3. The facts as set up by the prosecution are that on
16.01.1991 Amilal Yadav lodged a complaint that in evening of
15.01.1991 at about 7:00 PM, he along-with his brother
Dharampal (hereinafter referred to as ‘deceased’) were at their
shop when the complainant left for village. On 16.01.1991 at
about 10.30 AM complainant brought food for the deceased but
found that shop was locked. The complainant waited till 4o’ clock
and then on opening the shop after cutting the lock, found the
deceased lying dead on a bench. A woolen gents shawl
(hereinafter referred to as ‘shawl’) was wrapped like a noose
around the neck of the deceased. In the shop a glass lying
on the table reeked of alcohol. The cutting of the mattress on
which the deceased vomited, a woolen cap and the liquor from the
glass after sealing in a bottle were recovered from the site and
seizure memo Ex.P.12 was prepared. PW-11 Sundar Lal and PW-
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
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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.
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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(Downloaded on 28/08/2025 at 09:57:52 PM)
[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
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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.
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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.
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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
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[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
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