Rajasthan High Court – Jodhpur
Bhuraram vs State Of Rajasthan on 13 February, 2026
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (Db) No. 251/2024
1. Bhuraram S/o Bhutaram, Aged About 27 Years, Resident
Of Doli Fali Bhimana Police Station Rohida Dist Sirohi
Rajasthan
2. Mohanlal S/o Sayebaram, Aged About 33 Years, Resident
Of Vatera Police Station Rohida Dist Sirohi Rajasthan
(Both lodged at Central Jail, Jodhpur)
----Appellants
Versus
State Of Rajasthan, Through PP
----Respondent
For Appellant(s) : Mr. Arpit Surana
For Respondent(s) : Mr. Sharwan Singh Rathore, PP
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Judgment
BY THE COURT: (Per Hon'ble Mr. Justice Vinit Kumar Mathur)
1. Date of conclusion of argument 05.02.2026
2. Date on which the judgment was 05.02.2026
reserved
3. Whether the full judgment or only Full Judgment
operative part is pronounced
4. Date of Pronouncement 13.02.2026
1. The present D.B. Criminal Appeal has been filed under
Section 374 Cr.P.C. by the accused-appellants (1) Bhuraram S/o
Bhutaram and (2) Mohanlal S/o Sayebaram assailing the legality
and validity of the judgment dated 28.06.2024 passed by learned
Additional District and Sessions Judge, Bhinmal, District Jalore,
(hereinafter referred to as ‘learned trial court’) in Sessions Case
No.09/2022 whereby the accused-appellants have been convicted
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for the offences under Sections 460, 394 read with Sections
397/34, 302/34 of the Indian Penal Code and sentenced as
under:-
Offence under Imprisonment and Fine In default of Fine
Section
394 read with 7 years Rigorous Further to undergo
397/34 of IPC Imprisonment and Fine of Rs. 2 months S.I.
10,000/-
460/34 of IPC 10 years Rigorous Further to undergo
Imprisonment and Fine of Rs. 2 Months S.I.
10,000/-
302/34 of IPC Life Imprisonment and Fine of Further to undergo
Rs. 20,000/- 5 Months S.I.
2. As per prosecution's case the complainant-Ghewardas
submitted a written report (Exhibit P -1) alleging that near the
river at Village Dhumbadiya there exists a Hanuman Temple,
where his uncle, the deceased-Nainudas S/o Lachhiram had been
residing and performing worship for several years. On the
intervening night of 29.11.2021, some unknown miscreants
trespassed into the said temple during night hours with the
intention of committing theft and assaulted Nainudas with a knife,
causing injuries on his hands, eyes and back, as a result of which,
he sustained grievous injuries. At about 1:30 A.M., one
Sohanaram S/o Kevajiram informed the complainant-Ghewardas
telephonically that he could hear the cries “मारे मारे ” of priest
Nainudas coming from the Hanuman Temple and the priest
Nainudas was being assaulted. Upon receiving the said
information, the complainant-Ghewardas along with his brothers
namely Bhanwardas, Kaludas and Veerdas rushed to the temple,
where they found their uncle Nainudas lying in an injured
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condition. He was immediately taken to the hospital, Bagoda for
treatment and thereafter, while being taken to Bhinmal in
unconscious condition, he succumbed to the injuries on the way.
The unknown miscreants had committed theft of offerings kept in
the temple and had taken away a bag belonging to the deceased.
3. On the basis of the above written report, marked as Exhibit
P-1, a formal FIR No.166/2021 (Exhibit P-8) was registered at
Police Station Bagoda, District Jalore, against the unknown
persons for the offence under Section 460, 302 and 379 of the
Indian Penal Code.
4. After completion of investigation, Police filed a charge-sheet
against the accused-appellants for the offences under Sections
460, 397, 394 and 302/34 of IPC.
5. Learned Trial Court framed, read over and explained the
charges under Sections 460, 397, 394 and 302/34 of IPC to the
accused-appellants, who denied the charges and sought trial.
6. During the trial, the prosecution examined as many as 15
witnesses. In support of its case, the prosecution also produced
documentary evidence, Exhibits P-01 to P-62.
7. The accused-appellants were examined under Section 313
Cr.P.C., wherein they stated that the prosecution witnesses had
deposed falsely, given false evidence and they had been falsely
implicated. In their defence, the accused-appellants did not
produce any witnesses as well as documentary evidences.
8. Learned Trial Court, after hearing the arguments advanced
on behalf of both sides, upon appreciation of the oral and
documentary evidence brought on record, convicted and
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sentenced the accused-appellant as aforesaid vide its judgment
dated 28.06.2024.
9. Hence the present appeal.
10. Learned counsel for the accused-appellants assailed the
impugned judgment of conviction and sentence dated 28.06.2024
passed by the learned trial court as being illegal, perverse and
contrary to the evidence available on record. He submitted that
the learned trial court has failed to appreciate the prosecution
evidence in its correct perspective and has recorded conviction
merely on conjectures and surmises.
11. Learned counsel for the accused-appellants submitted that
the criminal proceedings were initiated on the basis of false, vague
and baseless allegations and that the complaint itself does not
disclose a truthful or reliable chain of evidence. He submitted that
a careful reading of the statements of the prosecution witnesses
examined before the learned trial court clearly reveals that the
prosecution version is prima facie misleading and shrouded with
serious suspicion.
12. Learned counsel for accused-appellants submitted that the
learned trial court failed to appreciate that the alleged offence
occurred during late night hours and no material whatsoever has
been placed on record to establish the presence, participation or
involvement of accused-appellants at the place of occurrence. He
further submitted there were no eyewitnesses present at the place
of occurrence. Therefore, entire case of the prosecution rests on
circumstantial evidence and the prosecution has failed to establish
a complete and unbroken chain of circumstances.
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13. Learned counsel for the accused-appellants, at the outset,
assailed the prosecution case on the ground that the entire
implication of the accused-appellants’ rests solely on the basis of
alleged recovery of mobile phones used at the time of incident
(Exhibit P-28) and call detail records (Exhibit P-41 to Exhibit P-
43), which neither belonged to nor were proved to be used by
them. It was submitted that the mobile numbers on the basis of
which the Prosecution treated the accused-appellants as suspects
were registered in the names of other persons and not in the
names of the present accused-appellants. Despite this, the
investigating officer-Chattar Singh (PW-2) failed to collect any
legally admissible evidence to establish ownership, possession or
conscious use of the said mobile phones by the accused-
appellants, thereby creating serious and suspicious circumstances
surrounding the investigation.
14. Learned counsel for the accused-appellants submitted that
the investigating authorities committed a serious lapse in not
recording the dying declaration (Parchabayan) of the deceased-
Nainudas, despite the fact that he remained alive for a
considerable period and was taken to the hospital for treatment.
He further submitted that recording of the dying declaration was a
crucial step in the investigation, particularly in a case where the
prosecution alleges a brutal assault by unknown assailants and
there are no eyewitnesses to the occurrence. The failure of the
prosecution to place any dying declaration on record creates a
serious dent in the prosecution case and casts doubt on the
fairness and completeness of the investigation.
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15. Learned counsel for the accused-appellants further submitted
that the investigation conducted in the present case suffers from
serious procedural lapses. He pointed out that as per the
statement of the complainant-Ghevardas (PW-1), the police
reached the place of occurrence at about 7:00 A.M., however, a
perusal of the site plan (Naksha Mauka) marked as Exhibit P-5
reveals that the same was prepared only at around 6:00 p.m. on
30.11.2021. He further submitted that such an unexplained and
inordinate delay in preparation of the site plan, despite the police
having reached the spot in the morning, clearly reflects a casual
and defective investigation, which casts a serious doubt on the
authenticity of the prosecution case.
16. Learned counsel for the accused-appellants submitted that
the alleged recoveries shown at the instance of the appellants
under Section 27 of the Indian Evidence Act are wholly doubtful
and vitiated. He submitted that the alleged recovery of a sum of
₹120/- and a mobile phone from the pocket of the deceased
priest, as well as a steel box containing bank passbooks, Aadhaar
card, Bhamashah card and other documents, has been falsely
attributed to information allegedly supplied by the accused-
appellants (Exhibit P-20, Exhibit P-24, & Exhibit P-27). He further
drew the attention of the Court to the statements of Kaludas (PW-
3) and Bhanwardas (PW-4), who have stated that the
investigating agency themselves had taken the aforesaid articles
from the place of occurrence and that the same were not
recovered pursuant to any disclosure made by the accused-
appellants, renders the said recoveries unsustainable.
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17. Learned counsel for the accused-appellants further submitted
that no independent witnesses were associated at any stage of the
alleged recovery proceedings, nor was any proper identification of
the recovered articles or of the appellants conducted in
accordance with law. He further submitted that in absence of
independent corroboration, the recovery evidence remains wholly
untrustworthy and the entire recovery process stands vitiated and
deserves to be termed as flawed. He further submitted that the
very nature of the alleged stolen articles, namely a bank
passbook, Aadhaar card and allied documents, does not furnish
any plausible motive for committing robbery or a heinous offence
like murder.
18. Learned counsel for the appellants submitted that it has
come on record in the testimonies of Investigating Officers PW-2
Chattarsingh and PW-4 Bhanwardas that the crime scene was
photographed by the police, but for the reasons unknown, the
same were not exhibited before the learned trial court. This shows
that the investigation was tainted and incomplete.
19. Learned counsel for the accused-appellants relied upon the
medical evidence and submitted that the prosecution has failed to
establish that the injuries sustained by the deceased was
insufficient to cause death. He invited the attention of the Court to
the testimony of Dr. Vikas (PW-13), who conducted the post-
mortem examination of the deceased and submitted his report.
The witness has categorically stated that the injuries mentioned
from Part ‘I’ to ‘J’ of Exhibit P-33, taken individually, may not be
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sufficient in the ordinary course of nature to cause the death of a
person.
20. Learned counsel for the accused-appellants assailed the
sanctity of the prosecution’s chain of evidence regarding taking
into custody the recovered articles in Malkahana. Learned
counsel drew the attention of the Court to the testimony of PW-12
Rajuram, the Malkhana Incharge, who has categorically stated
that Exhibit P-44A does not mention the time at which the seized
articles were deposited at the police station in any column of the
Malkhana register. The witness further admitted that the said
exhibit does not bear the signature of the officer who deposited
the articles, nor does it contain any details regarding the time of
deposit, which render the custody of the seized articles doubtful
and completely undermine the credibility of the recovery and
forensic evidence.
21. Lastly, learned counsel for the accused-appellants submitted
that the prosecution has failed to establish its case beyond
reasonable doubt and the impugned judgment dated 28.06.2024,
whereby the accused-appellant has been convicted and sentenced,
is illegal, erroneous and contrary to the material available on
record and, therefore, liable to be quashed and set aside and the
accused-appellants be acquitted of all the charges levelled against
them.
22. Per contra, learned Public Prosecutor opposed the
submissions advanced on behalf of the accused-appellants and
supported the prosecution case as unfolded before the learned
trial court. He submitted that there is no illegality or infirmity in
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the impugned judgment dated 28.06.2024 passed by the learned
trial court, whereby the accused-appellants were convicted for the
under Section 460, 394 read with 397, 302/34 of the Indian Penal
Code.
23. Learned Public Prosecutor further submitted that the
recoveries effected at the instance of the accused-appellants,
including a sum of ₹120/-, the mobile phone of the deceased and
a steel box, clearly establish their involvement in the crime. He
further submitted that during technical analysis, two mobile
phones were found to be active within the relevant tower area
during the morning hours and that the SIM cards used at the time
of the incident were recovered at the instance of the accused-
appellants, which sufficiently proves their presence near the place
of occurrence.
24. Learned Public Prosecutor further submitted that blood-
stained clothes and an iron rod (sariya) were recovered at the
instance of the accused-appellants, and as per the FSL report
(Exhibit P-60), human blood was detected on the said articles,
which lends strong corroboration to the prosecution case.
25. Lastly, Learned Public Prosecutor submitted that the
prosecution has successfully established a complete chain of
circumstantial evidence, which unerringly points that it were the
accused-appellants who have committed the offence alleged. He
further submitted that the charges levelled against the appellants
stand proved beyond reasonable doubt and prayed for dismissal of
the appeal and affirmation of the conviction and sentence awarded
by the learned trial court.
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26. We have considered the submissions made before this Court
and have carefully examined the relevant record of the case,
including the impugned judgment dated 28.06.2024.
27. A close scrutiny of the record reveals that at the time when
the incident in question occurred, there was no eyewitness to the
alleged incident. It is further undisputed that there was neither
any last seen witness nor any other person present near the
deceased-Nainudas, who was residing alone in the Hanuman
Temple and had no assistant or servant. Thus, the present case
rests entirely on circumstantial evidence. In such circumstances,
the law mandates that the chain of circumstances must be
complete, consistent and incapable of explanation on any
hypothesis other than the guilt of the accused.
28. The most significant circumstance relied upon by the
prosecution to connect the accused-appellants with the
commission of crime is the alleged recovery of mobile phones and
the call detail records. However, on a careful re-appreciation of the
evidence of the investigating officer-Chattar singh (PW-2) and PW-
14 Trilok Singh, we find that this circumstance does not withstand
judicial scrutiny. The investigating officer, in his cross-
examination, has categorically admitted that none of the SIM
cards allegedly recovered from the accused was registered in their
names. The investigating officer further admitted that it never
emerged during investigation that any of the accused possessed a
SIM card registered in their own name and that although the
accused stated they were using mobile phones of their relatives;
no statements of such relatives were recorded.
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29. PW-14 Trilok Singh, who conducted the cyber analysis, has
also admitted that during the relevant period as many as 13,700
mobile numbers were active in the concerned tower area, out of
which about 1000 numbers were found suspicious, and finally only
two numbers were found present in the tower area during the
morning hours. Significantly, even these two numbers were found
to be registered in the names of Bhutaram and Sohanlal, neither
of whom were examined, questioned or apprehended by the
police. Mere presence of certain mobile numbers in a tower area,
without proof of ownership, exclusive possession or conscious use
by the accused, cannot constitute a conclusive incriminating
circumstance. The learned trial court erred in treating the recovery
and technical evidence as sufficient merely because the recovery
memos were formally proved, overlooking the substantive
admissions which completely demolish the link between the
accused and the alleged mobile usage. In the absence of evidence
establishing that the recovered mobile phones were regularly or
exclusively used by the accused, and in the absence of
examination of the registered SIM holders, the entire edifice of the
prosecution case built on mobile recovery and call detail records
collapses.
30. Another serious infirmity in the prosecution case emerges
from the evidence of PW-3 Kaludas and PW-4 Bhanwardas, which
relates to the statement of the deceased-Nainudas recorded
during his treatment. PW-3 Kaludas, in his cross-examination, has
categorically stated that the police officer had questioned
Nainudas at the hospital in the presence of a doctor and that the
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said questioning was reduced into writing. PW-4 Bhanwardas has
also stated that Nainudas had informed the police about the
number of persons involved and the manner in which the incident
had occurred, though he expressed inability to recall whether the
police reduced the statement into writing. The testimonies of both
these witnesses clearly indicate that the deceased was conscious
for a sufficient period and had disclosed material facts to the
police, and that such statement was either recorded or ought to
have been recorded. However, no such statement, whether in the
form of a dying declaration or, has been produced on record by
the prosecution. The non-production of this crucial piece of
evidence, despite clear indication of its existence, constitutes a
serious lapse in investigation. In a case where there is no
eyewitness and the prosecution alleges a brutal assault by
unknown assailants, the dying declaration of the deceased
assumes paramount importance.
31. PW-1 Ghewardas, the complainant, has categorically stated
that the police reached at the place of occurrence at about 7:00
a.m. and that the site was inspected in the morning hours. He
further stated that when the police inspected the spot, clothes and
other articles were lying scattered. Although Exhibit P-5 bears his
signatures, he has clearly admitted that the police merely
obtained his signatures and did not conduct any proceedings in his
presence. PW-1- Ghewardas has also stated that at around 6:00
p.m. on the same day, he was attending the cremation of the
deceased and was not present at the place of occurrence. PW-2
Chhattar Singh, the Investigating Officer, in his cross-
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examination, has admitted that the site inspection memo (Exhibit
P-5) was prepared at about 6:00 p.m. on 30.11.2021. PW-3
Kaludas has further stated that the police inspected the place of
occurrence on the next day, after the cremation of Nainudas had
already taken place, and that the kurta of the deceased was found
lying at the spot. The aforesaid evidence clearly reveals a glaring
contradiction regarding the time and manner of preparation of the
site plan. Despite the police having reached the spot in the
morning hours, the site plan was prepared only in the evening,
after the cremation of the deceased, without any satisfactory
explanation. Such unexplained and inordinate delay in preparation
of the Naksha Mauka, coupled with the admission that no
proceedings were conducted in the presence of the complainant,
casts a serious doubt on the authenticity of the site plan.
32. PW-3 Kaludas, in his cross-examination, has categorically
stated that the kurta of the deceased-Nainudas was lying at the
place of occurrence and that the police inspected the scene on the
day after the cremation of the deceased. He further stated that
when the police visited the hut, they themselves took away
articles including the Aadhaar card, mobile phone and a box
belonging to the deceased, and that he was unaware of what the
police did with those articles thereafter. PW-4 Bhanwardas has
also stated that the police searched the spot and took away a
diary and other articles from the place of occurrence; though he
volunteered that according to him the thieves had taken those
items. The testimonies of these witnesses clearly indicate that the
articles alleged to have been recovered at the instance of the
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accused were, in fact, already available at the place of occurrence
and were taken into possession by the police during spot
inspection. In view of such categorical admissions, the prosecution
version that a sum of ₹120/-, a mobile phone and a steel box
containing bank passbooks, Aadhaar card, Bhamashah card and
other documents were recovered pursuant to disclosures made by
the accused-appellants (Exhibits P-20, P-24 and P-27) seems
unreliable. The alleged recoveries shown at the instance of the
accused-appellants under Section 27 of the Indian Evidence Act
also fail to inspire confidence, are tainted and legally
unsustainable. Recovery under Section 27 of the Evidence Act is
admissible only when it is shown that the fact discovered was
within the exclusive knowledge of the accused. Where the articles
were already lying at the place of occurrence and were taken by
the police themselves, the essential requirement of Section 27
stands completely defeated.
33. It has further come on record that during the alleged
recovery proceedings, no independent witnesses were associated
by the investigating agency. The recovery memos were witnessed
only by police personnel, and neither the recovered articles nor
the accused-appellants were subjected to any proper identification
in accordance with law. The absence of such independent
corroboration, coupled with the fact that the recoveries are
supported only by official witnesses, renders the recovery
evidence weak and unreliable.
34. Another serious lapse in the investigation pertains to
suppression of material evidence. It has come on record that the
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investigating authorities had got the place of occurrence
photographed; however, the said photographs were neither placed
on record nor exhibited before the learned trial court. PW-2
Chattar Singh, the Investigating Officer, has himself admitted in
his examination-in-chief that photographs of the crime scene were
taken, but the same were not submitted as part of the case file.
35. PW-4 Bhanwardas has also stated in his cross-examination
that photographs were taken at the place of occurrence by the
police officials, though he could not identify the photographer. The
non-production of such crucial visual evidence, despite its
admitted existence, gives rise to an adverse inference against the
prosecution. The Photographs of the crime scene could have
thrown valuable light on the condition of the spot, position of
articles and the manner of occurrence.
36. The post-mortem examination of the deceased-Nainudas
revealed multiple injuries, including bruising on the left eye, a
10×5 cm bruise on the lateral part, an abrasion on the right
forearm, a stab wound on the right arm, fractures of the 11th and
12th ribs, rupture of the spleen and internal bleeding, with the
cause of death opined to be hemorrhagic shock. PW-13 Dr. Vikas
has proved the post-mortem report (Exhibit P-33), which bears
the signatures of the members of the medical board. However, the
said witness has categorically admitted in his cross-examination
that the injuries mentioned from Part ‘I’ to ‘J’ of Exhibit P-33,
taken by themselves, may not be sufficient to cause death. This
admission assumes significance, particularly in the absence of any
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clear evidence establishing the manner in which the fatal injuries
were inflicted or linking the same to the accused-appellants.
37. As regards the forensic evidence, though the prosecution has
examined PW-12 Rajuram, PW-9 Krishnaram Chaudhary and PW-
15 Mahendra Singh to establish that the seized articles were
transmitted to the Forensic Science Laboratory in a sealed
condition, the FSL report (Exhibit P-60), merely indicates the
presence of human blood with inconclusive blood grouping. The
prosecution has failed to establish any nexus between the blood
detected on the seized articles and the blood group of deceased.
Thus, neither the medical evidence nor the FSL report, when
appreciated in the totality of circumstances, inspires confidence in
the prosecution case.
38. PW-12 Rajuram, the Malkhana Incharge, in his cross-
examination, has categorically admitted that Exhibit 44A, the
store register (Malkhana register), does not mention the time at
which the seized articles were deposited at the police station in
any column, nor does it bear the signature of the officer who
deposited the goods, nor does it record any details regarding the
time of deposit. The witness has further admitted that portions ‘C’
to ‘D’ of Exhibit P-44A merely indicate the markings of the articles
sent to the Forensic Science Laboratory through Krishna Ram PW-
09, but do not specifically state that all the packets were sealed
and secure at the time of handing over, or that they were
delivered in the same condition as received from the Malkhana. In
the absence of proper documentation and authentication
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regarding deposit of the articles in the Malkhana, the possibility of
tampering cannot be ruled out.
39. We note that, it is trite that in a case founded entirely on
circumstantial evidence, each circumstance relied upon by the
prosecution must be firmly and cogently established, the proved
circumstances must form a complete chain, and such chain must
be consistent only with the hypothesis of the guilt of the accused
and inconsistent with any other reasonable hypothesis of
innocence. Suspicion, howsoever strong, cannot take the place of
legal proof, and the prosecution must stand on its own legs to
establish the guilt of the accused beyond reasonable doubt.
40. The Hon’ble Supreme Court in Sharad Birdhichand Sharda
v. State of Maharashtra, reported in AIR 1984 SC 1622, has
authoritatively laid down the governing principles for cases resting
on circumstantial evidence and has enunciated the five golden
principles, described as the Panchsheel, namely:-
(i) the circumstances from which the conclusion
of guilt is to be drawn should be fully
established.
(ii) 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.
(iii) the circumstances should be of a conclusive
nature and tendency.
(iv) they should exclude every possible hypothesis
except the one to be proved, and(Uploaded on 16/02/2026 at 02:06:35 PM)
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(v) 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.
41. Tested on the anvil of the aforesaid principles, the
prosecution case in the present matter falls short on multiple
counts. Firstly, the circumstances relied upon by the prosecution
are not fully established beyond reasonable doubt. The
foundational fact of presence and participation of the accused-
appellants at the place of occurrence remains unproved, as
admittedly there is no eyewitness or last seen witness, and the
deceased was residing alone in the temple. Secondly, the
circumstances proved are not consistent only with the hypothesis
of guilt. The alleged mobile-phone linkage, relied upon as a
principal circumstance, stands demolished by the admissions
made by the Investigating Officer Chattar Singh (PW-2) and
the Cyber Cell expert Trilok Singh (PW-14) in their
statements, who categorically admitted that none of the SIM cards
allegedly recovered were registered in the names of the accused-
appellants and that the registered SIM holders-Sohanlal,
Bhutaram and Maharani-were neither examined nor apprehended.
The evidence further reveals that as many as 13,700 mobile
numbers were active in the concerned tower area, out of which
about 1000 were filtered as suspicious, thereby rendering the
inference drawn against the accused wholly speculative coupled
with the fact that the said recovered mobiles were being used by
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[2026:RJ-JD:7326-DB] (19 of 21) [CRLAD-251/2024]
the accused-persons at the time of incident and were in their
exclusive possession.
42. Thirdly, the circumstances relied upon by the prosecution
are not of a conclusive nature. The alleged recoveries under
Section 27 of the Indian Evidence Act (Exhibits P-20, P-24 and
P-27), projected as the cornerstone of the prosecution case,
stand seriously dented by the categorical testimonies of Kaludas
(PW-3) and Bhanwardas (PW-4), who have unequivocally
stated that the police themselves took away the Aadhaar card,
mobile phone, diary and box from the place of occurrence during
spot inspection and that the said articles were not recovered
pursuant to any disclosure made by the accused-appellants. The
absence of independent witnesses and lawful identification further
renders the recovery proceedings unreliable and legally
unsustainable.
43. Fourthly, the prosecution has failed to exclude every
possible hypothesis except that of guilt. The non-production of the
statement of the deceased allegedly recorded at the hospital
despite the clear testimonies of Kaludas (PW-3) and
Bhanwardas (PW-4) indicating that the deceased had disclosed
material facts to the police, the contradictory evidence regarding
preparation of the site plan (Exhibit P-5) as deposed by
Ghewardas (PW-1), Chattar Singh (PW-2) and Kaludas (PW-3),
and the deliberate withholding of crime-scene photographs
admittedly taken by the police as admitted by Chattar Singh
(PW-2) and Bhanwardas (PW-4), cumulatively create serious
doubt about the fairness and completeness of the investigation. It
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has also come on record that after the alleged incident, the entire
village was closed/shut down for three consecutive days.
Therefore, the possibility cannot be ruled out that on account of
pressure and/or protest raised by the villagers, the present
accused-appellants were falsely foisted in the present case.
44. Lastly, when the evidence is appreciated cumulatively, the
chain of circumstances is found to be incomplete and fractured.
The medical evidence of Dr. Vikas (PW-13), who proved the
post-mortem report (Exhibit P-33), itself indicates that the
injuries mentioned from Part ‘I’ to ‘J’ may not be sufficient in
themselves to cause death. The FSL report (Exhibit P-60),
though showing presence of human blood, is rendered
inconclusive due to absence of blood grouping and serious breaks
in the chain of custody, as admitted by Rajuram (PW-12), the
Malkhana Incharge, in respect of Exhibits P-44A. These infirmities
leave reasonable grounds consistent with the innocence of the
accused-appellants.
45. Consequently, the present D.B. Criminal Appeal is allowed.
46. The impugned judgment dated 28.06.2024 passed by the
learned Additional District and Sessions Judge, Bhinmal, District
Jalore in Sessions Case No.09/2022 (CIS No.16/2022), convicting
and sentencing the accused-appellants Bhuraram S/o Shri
Bhutaram and Mohanlal S/o Sayebaram for the offences under
Sections 460, 394 read with 397/34 and 302/34 of the Indian
Penal Code, is hereby quashed set aside.
47. The accused-appellants Bhuraram S/o Shri Bhutaram and
Mohanlal S/o Sayebaram are hereby acquitted from all the
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[2026:RJ-JD:7326-DB] (21 of 21) [CRLAD-251/2024]
charges levelled against them. The accused-appellants are in jail,
therefore, they may be released forthwith, if not needed in any
other case.
48. Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellants are directed to forthwith furnish
personal bonds in the sum of Rs.50,000/- each and a surety bond
in the like amount, before the learned trial court, 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 appellants, on receipt of notice thereof, shall appear
before Hon’ble the Supreme Court.
49. Office is directed to send the record of the trial court
forthwith.
(CHANDRA SHEKHAR SHARMA),J (VINIT KUMAR MATHUR),J
-Vaibhav/C.P. Goyal/-
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