Rajasthan High Court – Jodhpur
State Of Rajasthan vs Tulsi Ram (2025:Rj-Jd:33435-Db) on 25 July, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:33435-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 251/1990
State of Rajasthan
----Appellant
Versus
Tulsi Ram S/o Shri Natthumal
b/c Sindhi, resident of Sindhu-Nagar
P.S. City Kotwali, Bhilwara
----Respondent
For Appellant(s) : Mr. Ramesh Dewasi, Public Prosecutor
For Respondent(s) : Mr. Kuldeep Bishnoi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON’BLE MR. JUSTICE SANDEEP TANEJA
Judgment
25/07/2025
1. By way of instant criminal appeal, the appellant-State has
challenged the validity and legality of the judgment dated
23.03.1989 passed by the learned Additional Sessions Judge,
Bhilwara in Sessions Case No.30/1985, whereby the accused-
respondent Tulsi Ram has been acquitted for the offences under
Sections 364, 386, 507, 302 and 201 IPC.
2. The facts in brief are that complainant-Harish Chandra
submitted a written complaint on 07.07.1983 at Kotwali, Bhilwara
stating therein that Ashok Kumar son of his elder brother Jai
Kishan, aged seven years, who had gone to school in the morning
did not come back. The said missing report was entered in
‘Roznamcha’. Subsequently, when even after search Ashok Kumar
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was not found, a Criminal Case No.272/1983 for offence under
Section 363 IPC was registered on 10.07.1983.
3. On the same date i.e. 10.07.1983, in the evening at 6:15, it
was heard that a dead body of a child is lying near village Bholi.
The police personnel reached at the place of incident and found a
skeleton of a child, therefore, the matter was investigated and
upon completion of investigation, charge-sheet against accused-
respondent Tulsi Ram for offences under Sections 302, 364, 386,
507, and 201 IPC was filed before the learned Chief Judicial
Magistrate, Bhilwara, from where the case was committed to the
court of Additional Sessions Judge, Bhilwara. Subsequently,
charges were framed against accused-respondent Tulsi Ram for
offences under Sections 364, 386, 507, 302 and 201 IPC, who
denied the charges levelled against him and claimed trial.
4. During trial, the prosecution examined 29 witnesses and
accused-respondent examined one witness DW-1. Upon
appreciation of evidence, the learned Trial Court acquitted the
accused-respondent from the charges levelled against him vide
impugned judgment. Hence, this criminal appeal has been filed by
the State against acquittal of the accused-respondent.
5. Learned Public Prosecutor appearing on behalf of the State
while assailing the impugned judgment passed by the learned Trial
Court submitted that from the chain of circumstances established
by the prosecution, the only conclusion that can be drawn is that
the accused-respondent caused death of deceased-Ashok with
intention of causing death. It was further submitted that a shirt
was found near the skeleton and the shirt was identified by uncle
of deceased-Ashok namely Shri Kishanchand. One Baniyan was
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also worn by the dead body. It is submitted that the learned Trial
Court erred in not appreciating that father of the deceased had
received a letter at 5:30 PM on 09.07.1983 extorting rupees ten
thousand. The hand-writing, in which, the letter was written
resembled with the hand-writing of the accused-respondent. The
said letter was produced and proved by the prosecution before the
learned Trial Court as Exhibit P/13. As per the said letter, whereby
demand of rupees ten thousand was made, the said amount was
to be paid at the mountain of Harni Mahadev. A number of
witnesses have also stated that the accused-respondent Tulsi Ram
was seen at the mountain Harni Mahadev. It was further stated
that PW-28 Tara Shanker Kapoor was produced by the
prosecution, who specifically stated that there was no difference in
the sample of hand-writing of the accused-respondent and the
hand-writing in which the letter was written, which ultimately
established that the letter was written by accused-respondent
Tulsi Ram and since no money was paid in pursuance of the said
letter, the accused-respondent murdered the deceased-Ashok. It
was submitted that chhapal of deceased-Ashok was also recovered
at the instance of accused-respondent Tulsi Ram. It was Vijay
Kumar (PW-8), who saw deceased-Ashok in the company of
accused-respondent Tulsi Ram on the date of incident.
6. On the basis of above submissions, learned Public Prosecutor
has submitted that the prosecution has proved its case beyond
reasonable doubt and, therefore, the impugned judgment passed
by the learned Trial Court should be reversed and accused-
respondent Tulsi Ram should be held guilty for the offences
charged.
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7. Per contra, learned counsel appearing on behalf of accused-
respondent submitted that the learned Trial Court has thoroughly
appreciated the evidence on record and taking into consideration
the material available on record has rightly held that the
prosecution has failed to prove its case beyond reasonable doubt
and consequently accused-respondent Tulsi Ram has been rightly
acquitted for the offences charged, which does not require any
interference by this Court.
8. It was submitted that the prosecution witnesses namely
Gaffar (PW-5) and Ramesh (PW-7) have not supported the
prosecution case and turned hostile. It was further submitted that
the prosecution has failed to establish that the skeleton which was
found at the mountain of Harni Mahadev was of deceased-Ashok.
It was also submitted that from the statement of Vijay Kumar
(PW-8), it cannot be concluded that the deceased was last seen
with the accused-respondent on the date of incident. It was
further submitted that even on the basis of report of hand-writing
expert, the accused-respondent cannot be held guilty for the
offences charged.
9. Heard learned counsel for the parties and perused the
record.
10. Undoubtedly, there is no direct or eye witness of the
incident. The prosecution has sought to make out a case on the
basis of circumstantial evidence.
11. The Hon’ble Supreme Court has laid down the principles for
drawing conclusion on the basis of circumstantial evidence in the
case of Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in (1984) 4 SCC 116 held as under :
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“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 Maharashtra¹
where the follow-ing 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.”
12. The Hon’ble Supreme Court, referring to the above judgment
in the case of Shailendra Rajdev Pasvan and Others Vs. State
of Gujarat and Others reported in (2020) 14 SCC 750, held as
under :
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“13. Thus the entire case of the prosecution is
based on circumstantial evidence. It is well settled
that in a case which rests on circumstantial
evidence, law postulates two fold requirements :-
(i) Every link in the chain of the circumstances
necessary to establish the guilt of the accused must
be established by the prosecution beyond reasonable
doubt.
(ii) All the circumstances must be consistent
pointing only towards the guilt of the accused.
xxxxx
17. It is well settled by now that in a case based on
circumstantial evidence the Courts ought to have a
conscientious approach and conviction ought to be
recorded only in case all the links of the chain are
complete pointing to the guilt of the accused. Each
link unless connected together to form a chain may
suggest suspicion but the same in itself cannot take
place of proof and will not be sufficient to convict the
accused.”
13. We have closely examined the evidences led by the parties
and find many contradictions in the prosecution case.
14. A bare perusal of the Panchnama of dead body (Exhibit P/2)
reveals that Jai Kishan (PW-9) father of the deceased did not go to
the site as neither his name is mentioned in (Exhibit P/2) nor any
other witness has stated that Jai Kishan (PW-9) went to the site
along with his brother-in-law Kishan Chand. If Jai Kishan (PW-9)
father of the deceased had gone to the site, he would have
identified the dead body and there was no requirement of Kishan
Chand, Mama of the deceased to identify the dead body.
15. Kishan Chand (PW-29) has stated that he was accompanied
by Jassumal, Perumal, Thawar, Revachand and Bhagwandas. He
saw the dead body of deceased-Ashok. The dead body was
wearing a baniyan. A bushart was also lying near the dead body.
He stated that he could identify the clothes of the deceased.
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Article-1 baniyan and Article-2 bushart were the same clothes
which were found on the dead body. The same baniyan was found
on the skeleton and the same bushart was lying near the dead
body. He also stated that he could identify the dead body on the
basis of skin on the right leg and right heel. He admitted that
Exhibit P/2 bears his signature. It is relevant to note here that as
per recovery memo (Exhibit P/8), a white bushirt on which Vimal
Joy was written was also stated to be found. All these articles
were taken into possession.
16. The Trial Court found that Exhibit P/8 has been prepared
subsequently and was ante dated 10.07.1983. The witnesses of
Exhibit P/2 and Exhibit P/8 ought to have been the same as both
the documents were prepared on the same day, however, the
witnesses of Exhibit P/8 were not the same as that of Exhibit P/2.
One of the witnesses of Exhibit P/8 Nandlal, who was not named
in Exhibit P/2. This clearly goes to show that Exhibit P/8 was
subsequently prepared. Moreover, Nandlal was produced as PW-4,
who stated that at the site, a skeleton was lying but there was no
cloth on the skeleton. He stated that one baniyan and one striped
shirt were lying there, which were seized by the police authorities
and Exhibit P/8 was prepared. In cross-examination, he stated
that the police did not seal the clothes in front of him. In cross-
examination, he further stated that many people were there at the
site, but nobody identified the clothes of the deceased. He also
stated that 2-3 papers were got signed from him. It is also
relevant to note here that description of bushart and baniyan,
which are mentioned in Exhibit P/8 are not mentioned in
Exhibit P/2.
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17. Radha Devi (PW-17), mother of the deceased stated that she
could identify the dead body of her son on the basis of heel of
right leg and skin and flesh on the palm of the hand of dead body.
However, Dr. F.S. Choudhary (PW-20), who conducted the medical
examination of the skeleton stated that on the basis of skin on
hand and legs of the deceased, the dead body cannot be
identified. Therefore, statement of Radha Devi (PW-17) was found
to be suspicious. Dr. F.S. Choudhary (PW-20) stated that the cause
of death is injury on the head. However, he has further stated that
he cannot say whether the injury was prior to death or after the
death. He also stated that in order to ascertain the sex of the
skeleton, the bones were sent for chemical examination. Dr.
Choudhary further stated that he cannot give any opinion
regarding the sex of the skeleton without chemical examination.
Merely, on the basis of examination of skeleton, it cannot be said
whether the skeleton was of a boy or a girl.
18. From the above statement and the material available on
record, it is not established beyond reasonable doubt that the
skeleton was of deceased-Ashok.
19. The prosecution has attempted to link the involvement of
accused on the basis of circumstantial evidence, first of which was
that the deceased was last seen with the accused by Vijay (PW-8).
Vijay (PW-8) stated that he knew deceased-Ashok as he used to
go to school with him. He stated that he saw deceased-Ashok on
the day of incident, who was sitting on the cycle with the accused.
He asked the deceased as to where he was going and the
deceased told him that he was going on visit. In cross-
examination, the said witness stated that he did not inform
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anybody that the deceased had gone with the accused. He stated
that after 2-3 days of the incident, even police authorities also
came to search the deceased and asked all the children, but he
did not even inform the police personnel that deceased-Ashok
used to go to school with him. He further stated that after 15-20
days of the incident, he told regarding incident to his father
Tekchand and Bhuwa as well. This witness was not found
trustworthy as if he had seen the deceased with the accused, he
would have informed about the same to his family members
immediately. Even he did not inform the parents of the deceased
despite asking about the same. He even did not inform about the
incident to the police authorities. If he had seen the said incident,
he would have informed to the other children also. The said
witness was therefore not found to be trustworthy and the version
of the prosecution on this count was rightly rejected by the
learned Trial Court.
20. The second circumstance on the basis of which involvement
of accused has been alleged by the prosecution is the extra
judicial confession by the accused in front of Ramesh Chand,
Shanker Singh and Gaffar. Statement of these witnesses were
recorded under Section 164 CrPC. However, during trial, Gaffar
(PW-5) and Ramesh (PW-7) turned hostile. So far as Shanker
Singh (PW-6) is concerned, in cross-examination, he stated that
he was held in the police station for a week and thereafter when
he gave statement, he was released. He stated that he was not
aware that whose dead body was found at Harni Mahadev and
when. He stated that the accused told him about murder of a
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Sindhi boy five to six months prior to he was held by the police
and he did not inform this to anybody in six months. The
statement of this witness was recorded on 23.11.1985 and the
accused was in judicial custody three to four months prior to the
said date and, therefore, there arose no question of his meeting
with the accused during that period. Moreover, as he has stated
that he was held in the police station for a period of one week and
only when he gave statement to that effect, he was released,
which goes to show that the police authorities got his statement
recorded under threat. From this extra judicial confession also, it
is not proved beyond reasonable doubt that the accused was
involved in the offence.
21. The third circumstance which has been relied upon by the
prosecution to link the accused with the offence is the recovery of
articles. It is stated that on the information of the accused,
chappal of deceased was recovered from beneath the rocks of
Harni Mahadev Mountain. The said document is Exhibit P/19.
However, Hazari (PW-18), in his statement, has stated that
chappal was not recovered in front of him. He further stated that
he just saw the chappal with police personnel. He stated that he
was not aware of the fact that from where the police authorities
brought the chappal. As per Exhibit P/19, the recovery of chappal
has been shown on 30.05.1985 whereas the incident took place
on 07.07.1983, which goes to show that this evidence was created
subsequently. Furthermore, this also does not appear to be true
for the reason that the information regarding chappal was stated
to be given on 29.05.1985 at 7.00 am whereas, the recovery has
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been shown at 11.30 am on 30.05.1985 and the distance from
Bhilwara and Harni Mahadev was merely three to four kms.
Despite that, the recovery has been shown after more than twelve
hours. Accordingly, the prosecution has failed to establish that the
recovery of chappal was made on the identification/information of
the accused.
22. Lastly, the prosecution has heavily relied upon the letter
Exhibit P/13, vide which, the accused has been sought to be
connected with the incident and handwriting in which the letter
was written. Vide the said letter, money was demanded from the
father of the deceased. The said letter was sent for handwriting
examination and Tara Shankar Kapoor (PW/28), hand writing
expert vide his report (Exhibit P/40) opined that the said letter
was written by the accused-respondent.
23. It is pertinent to mention here that the samples of
handwriting were sent thrice to the handwriting experts. On the
first occasion, the sample of handwriting of 28 persons and on the
second occasion, the sample of handwriting of 9 persons were
sent for examination. Third time only the sample of handwriting of
the accused was sent. However, no explanation was given for
obtaining the sample of accused only. Tara Shankar Kapoor (PW-
28) admitted in his cross-examination that no conclusion was
given in the first two reports as the material was not sufficient.
However, there was no explanation on the issue that if the
material was insufficient on first two occasions, then why only the
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sample of the handwriting of the accused was sent and not of all
those persons whose samples were sent on earlier two occasions.
24. The accused also produced Vanmala (DW-1), who opined
that the handwriting of the accused was not similar with that of
the letter Exhibit P/13. As such, there are two opinions of two
handwriting experts. PW-21 Satish Kumar confirmed that the
sample of handwriting of accused was got written by Dy.
Superintendent of Police. In view of the above, the manner in
which the prosecution obtained the samples and got it examined
does not make this evidence reliable. Apart from this fact,
otherwise also, opinion of a handwriting expert is a very weak and
less reliable evidence. Hence, the prosecution has failed to
establish connection of the accused with the offence on the basis
of letter Exhibit P/13.
25. The incident has been stated to be occurred on 07.07.1983
whereas the accused-respondent was arrested on 23.05.1985 i.e.
almost after two years of the incident. During this period, the only
evidence investigation could recorded or collected is the report of
the handwriting expert with regard to the letter written to the
father of the deceased, which as discussed hereinabove creates
serious doubt in the manner the report was obtained.
26. On the basis of above discussion, it is clear that the
prosecution has grossly failed to establish guilt of the accused-
respondent beyond reasonable doubt. From the above, it is clear
that the prosecution has failed to fulfill requirements as laid down
by the Hon’ble Supreme Court in the case of Sharad
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Birdhichand Sarda (supra) to prove guilt of the accused
respondent on the basis of circumstantial evidence and to prove
the case beyond reasonable doubt.
27. We, therefore, do not find any error in the detailed judgment
passed by the learned Trial Court.
28. At this juncture, this Court deems it appropriate to reproduce
the relevant portions of the judgments rendered by the Hon’ble
Apex Court in the cases of Mallappa & Ors. Vs. State of
Karnataka (Criminal Appeal No. 1162/2011, decided on
12.02.2024) as hereunder- :
“36. Our criminal jurisprudence is essentially based on
the promise that no innocent shall be condemned as
guilty. All the safeguards and the jurisprudential values
of criminal law, are intended to prevent any failure of
justice. The principles which come into play while
deciding an appeal from acquittal could be summarized
as:
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be
comprehensive inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may
result in a miscarriage of justice and is in itself a
ground of challenge;
(iii) If the Court, after appreciation of evidence, finds
that two views are possible, the one in favour of the
accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible
view, mere possibility of a contrary view shall not
justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it
must specifically address all the reasons given by the
Trial Court for acquittal and must cover all the facts;
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(vi) In a case of reversal from acquittal to conviction,
the appellate Court must demonstrate an illegality,
perversity or error of law or fact in the decision of the
Trial Court.”
29. The scope of interference in the acquittal order passed by
the learned Trial Court is very limited, and if the impugned
judgment of the learned Trial Court demonstrates a legally
plausible view, mere possibility of a contrary view shall not justify
the reversal of acquittal as held by the Hon’ble Apex Court in the
aforementioned judgment, and thus, on that count also, the
impugned judgment deserves no interference by this Court in the
instant appeal.
30. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case as well as in light of the
aforementioned precedent laws, this Court does not find it a fit
case warranting any interference by this Court.
31. Consequently, the present appeal is dismissed.
32. Keeping in view the provision of Section 437-A
Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita
(B.N.S.S.), 2023, the respondent-Tulsi Ram is directed to furnish a
personal bond in a sum of Rs.25,000/- and a surety bond in the
like amount before the learned Trial Court, which shall be made
effective for a period of six months, to the effect that in the event
of filing of Special Leave Petition against this judgment or for
grant of leave, the accused-respondent, on receipt of notice
thereof, shall appear before the Hon’ble Supreme Court as soon as
he would be called upon to do so.
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33. All pending applications, if any, stand disposed of.
34. Record of the learned Trial Court be sent back forthwith.
(SANDEEP TANEJA), J (DR. PUSHPENDRA SINGH BHATI),J
80 – ms rathore
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