Rajasthan High Court – Jodhpur
State Of Rajasthan vs Jitendra @ Jitu on 16 April, 2026
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2026:RJ-JD:17521-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Murder Refrence No.2/2022
State Of Rajasthan, Through PP
----Petitioner
Versus
Jitendra @ Jitu S/o Sh. Narayan, Mathugamda Pal Fala Dunger
P.s. Sadar Dungarpur Dist. Dungarpur (Raj.).
----Respondent
Connected With
(2) D.B. Criminal Appeal (Db) No. 173/2022
Jitendra @ Jitu S/o Narayan, Aged About 28 Years,
Mathugamada Pal Falan, Dengur, Dist. Dungarpur (Raj.).
(At Present Lodged In Dist. Jail Dungarpur)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Deepak Choudhary, AAG assisted
by Mr. K.S Kumpawat
For Respondent(s) : Mr. Vineet Jain, Sr. Adv. assisted by
Mr. Rajeev Bishnoi
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 08.04.2026
2. Date on which the judgment was 08.04.2026
reserved
3. Whether the full judgment or only Full Judgment
operative part is pronounced
4. Date of Pronouncement 16.04.2026
1. The Hon’ble Supreme Court in the case of Nipun Saxena &
Anr. Vs. Union of India & Ors., (2019) 2 SCC 703, and further
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reiterated in Birbal Kumar Nishad Vs. State of Chhattisgarh
(SLP (Crl.) No. 4540/2021, decided on 30.06.2021),
emphasized the mandatory requirement of protecting the identity
of victims of sexual offences, this Court deems it appropriate to
withhold the real name and identity of the victim and her close
relatives. Accordingly, for the purpose of maintaining anonymity,
the victim has been referred to as the “victim” and/or “A” and
close relatives has also been referred to by a fictitious name in the
present judgment as under –
"R" "Victim" Mother.
"M" "victim" Father.
2. By the impugned judgment and order dated 01.10.2022,
passed in Sessions Case No.58/2022, the Learned Special Judge
(Protection of Children from Sexual Offences Act, 2012),
Dungarpur (referred to hereinafter as “the Trial Court”), in the
case of State of Rajasthan vs. Jitendra & Ors., convicted and
sentenced the accused-appellant as under:-
376 AB IPC Death Penalty, with a In default of payment of fine
Read with Fine of Rs.1,00,000/- to further undergo Additional
5(J)(iv)(i) Imprisonment.
(M)/6
POCSO
Act,2012
3/4 of POCSO Life Imprisonment for In default of payment of fine
Act,2012 Rest of his Natural life,
to further undergo one year
with a fine of Rs. Additional rigorous
1,00,000/- Imprisonment
302 IPC Life Imprisonment, withIn default of payment of fine
a fine of Rs. 3,00,000/-
to further undergo one year
Additional rigorous
Imprisonment.
363 IPC Rigorous Imprisonment In default of payment of fine
for Five years, with a to further undergo 5 Month’s
fine of Rs. 10,000/- Additional simple
Imprisonment
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3. Death Reference No.02/2022 has been submitted by the Trial
Court under Section 366 Cr.P.C. seeking confirmation of the capital
punishment awarded to accused-appellant Jitendra @ Jitu. Appeal
No.173/2022 has been preferred by accused/appellant Jitendra @
Jitu assailing the impugned judgment.
4. As the Death Reference as well as Appeal both arise out of
the same judgment and order, they have been heard and are
being decided together.
FACTUAL ASPECTS:
5. Facts relevant for adjudication of the present case are that a
written report (Exhibit P-6) was submitted by the complainant “R”,
along with her husband “M” at Police Station Sadar, Dungarpur on
29.06.2022 at about 4:58 PM. In the said report, it was stated
that their daughter, victim “A”, born on 18.05.2012 (aged about 10
years), who was a student of Class V, had, after having dinner on
28.06.2022, gone to sleep along with her mother on a cot placed
in the courtyard outside their house. It was further stated that the
complainant had spoken to her husband at around 11:00 PM and
thereafter went to sleep. However, at about 12:00-1:00 AM in the
night, upon waking, she found that her minor daughter “A” was
missing. Despite searching at various places and making inquiries
from relatives, the victim could not be traced. Accordingly, a
request was made to register a missing persons report and to
search for the victim.
6. On the basis of the said report, a case bearing FIR No.
157/2022 came to be registered at Police Station Sadar,
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Dungarpur for the offence under Section 363 of the Indian Penal
Code.
7. During the course of investigation, the dead body of the 10-
year-old victim was recovered from beneath a culvert (Puliya)
situated on the road leading to Depat Falla.
8. After completion of investigation, the police filed a charge-
sheet against the accused – appellant for the offences under
Sections 363, 364, 366, 376(2), 376A, 376AB and 302 of the
Indian Penal Code along with Sections 3/4 and 5(J)(iv)(i)(M)/6 of
the Protection of Children from Sexual Offences Act, 2012 before
the competent court, from where the case was committed to the
Court of Sessions for trial.
9. Learned trial court, after hearing arguments on charge,
framed, read over and explained the charges under Sections 302,
363 and 376AB IPC along with Sections 3/4 and 5(J)(iv)(i)(M)/6 of
the POCSO Act, 2012 to the accused-appellant, who denied the
same and claimed trial.
10. During the trial, the prosecution examined as many as 29
witnesses. In support of its case, the prosecution also produced
documentary evidence, Exhibits P-01 to P-84 in support of its
case; whereafter the prosecution evidence was closed.
11. The statement of the accused-appellant was recorded under
Section 313 Cr.P.C., wherein he denied the prosecution allegations
in toto and claimed to be innocent, in defence, the accused-
appellant not examined any witness.
12. Learned Trial Court, after hearing the arguments advanced
on behalf of both sides and upon appreciation of the oral and
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documentary evidence brought on record, convicted and
sentenced the accused-appellant for the offences under Sections
302, 363 and 376AB IPC along with Sections 3/4 and 5(J)(iv)(i)
(M)/6 of the POCSO Act, 2012 and sentenced him vide judgment
dated 01.10.2022, as mentioned hereinabove..
13. Being aggrieved by the aforesaid judgment of conviction and
order of sentence passed by the learned trial court, the accused-
appellant has preferred the aforesaid criminal appeal before this
Court. As stated above, the Murder Reference too was submitted
by learned trial court before this Court for confirmation of the
death sentence awarded to the accused – Jitendra @ Jitu.
SUBMISSIONS ON BEHALF OF ACCUSED/APPELLANT:
14. Learned Senior Counsel Mr. Vineet Jain, appearing on behalf
of the accused-appellant, while assailing the impugned judgment,
vehemently submitted that the judgment dated 01.10.2022
passed by the learned trial court is contrary to the evidence
available on record and, therefore, the same is unsustainable in
the eye of law and deserves to be quashed and set aside by this
Court.
15. Learned Senior Counsel for the accused-appellant submitted
that the prosecution has utterly failed to establish its case beyond
reasonable doubt and, as such, no conviction can be sustained
against the accused-appellant. The entire case of the prosecution
rests on circumstantial evidence; however, the chain of
circumstances is incomplete and does not conclusively point out
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towards the guilt of the accused-appellant, particularly when the
accused-appellant is a married person having two minor children.
16. Learned Senior Counsel for the accused-appellant submitted
that the learned trial court has failed to properly appreciate the
evidence in the light of settled principles of criminal jurisprudence
and has erred in placing reliance on inconsistent and contradictory
statements of the prosecution witnesses. He further submitted
that none of the witnesses has specifically deposed that the
accused-appellant committed the alleged offence and material
contradictions exist in their testimonies. He also submitted that
had the accused-appellant committed the offence, he would have
absconded, whereas he remained present and did not attempt to
flee.
17. Learned Senior Counsel for the accused-appellant submitted
that the contradictions appearing in the statements of the
prosecution witnesses cast serious doubt on the veracity of the
prosecution story. There is no evidence of “last seen” connecting
the accused-appellant with the victim, nor is there any eyewitness
so as to establish that the alleged crime has been committed by
the accused-appellant. The implication of the accused-appellant is
based merely on suspicion and alleged recovery of a shirt and
blood-stained underwear, which, in itself, is insufficient to establish
guilt beyond reasonable doubt.
18. Learned Senior Counsel for the accused-appellant submitted
that during the course of trial, the principal circumstances relied
upon by the prosecution, which have weighed with the learned
trial court, are limited to: (i) the alleged presence of the accused-
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appellant near the puliya on the morning of 29.06.2022; (ii) the
recovery of a blood-stained shirt and undergarment at the
instance of the accused-appellant; and (iii) the FSL report
indicating that the hair found on the shirt of the deceased
matched with the DNA of the accused-appellant and that the blood
found on the shirt of the accused-appellant matched with the DNA
of the deceased. He further submitted that solely on the basis of
these circumstances, the learned trial court has proceeded to
convict the accused-appellant and awarded the sentence of death.
19. Learned Senior Counsel submitted that the entire
prosecution case suffers from serious infirmities and
inconsistencies. He further submitted that if the accused-appellant
was in custody since 29.06.2022, as is evident from the record,
there was no occasion for him to conceal the alleged incriminating
articles. The prosecution version that the accused-appellant was
released after sampling on 30.06.2022 is wholly improbable and
contrary to normal human conduct. He also submitted that if the
accused-appellant was not a suspect at the relevant time, there
was no justification for detaining him at the police station on
29.06.2022 and subjecting him to sampling on 30.06.2022, which
clearly indicates that he was already under suspicion.
20. Learned Senior Counsel submitted that even assuming, for
the sake of argument, without admitting that the accused-
appellant was formally arrested on 02.07.2022, it is against
common prudence that a person, who apprehends his implication
in a serious offence, would preserve incriminating articles in his
own house so as to facilitate their recovery by the police. Thus, in
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either eventuality, the alleged recovery is highly doubtful and
appears to be a planted one. He further submitted that the
disclosure memo (Exhibit P-77) is nothing but a document
prepared under coercion and cannot be relied upon.
21. Learned Senior Counsel submitted that the prosecution has
failed to establish that the alleged recovery was made from the
conscious and exclusive possession of the accused-appellant.
Admittedly, the house in question was not in exclusive possession
of the accused-appellant, no independent witness was associated
with the recovery proceedings, and even the signatures of the
family members present at the house were not obtained on the
recovery memos. Furthermore, the house was not found locked at
the time of recovery. In such circumstances, the alleged recovery
cannot be said to be reliable and, consequently, the subsequent
FSL matching loses its evidentiary value.
22. With regard to the FSL evidence, learned Senior Counsel
submitted that the prosecution has relied upon exhibits P-25 to P-
28 to establish the chain of custody of the samples. However,
none of these documents indicate that the clothes of the deceased
were handed over by the Medical Officer to the police. He further
pointed out that Dr. Gunwanti Meena (PW-14), in her cross-
examination, has categorically admitted that at the time of post-
mortem, the deceased was not wearing any clothes. This creates a
serious doubt regarding the origin and custody of the clothes
allegedly sent for forensic examination.
23. Learned Senior Counsel further submitted that as per the
malkhana register (Exhibit P-66A), the entries regarding deposit
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and forwarding of articles to the FSL reveal inconsistencies and
gaps in the chain of custody. The forwarding letters and receipts
(Exhibits P-16, P-17, P-18, P-63, P-64 and P-65) do not inspire
confidence and fail to conclusively establish that the samples
remained untampered. In such circumstances, the FSL report
(Exhibit P-76), which forms the basis of the conviction, cannot be
treated as conclusive proof linking the accused-appellant with the
alleged offence.
24. Learned Senior Counsel submitted that the conduct of the
accused-appellant is wholly inconsistent with the prosecution case.
He pointed out that the accused-appellant was seen visiting the
place of occurrence along with his daughter, which is contrary to
the normal human behaviour of a person who has committed such
a grave offence, as such a person would ordinarily avoid the place
of occurrence and not move around openly with a minor child.
25. On the aspect of sentence, learned Senior Counsel submitted
that the present case is admittedly based on circumstantial
evidence, and yet the learned trial court, on the very same day
after recording conviction, proceeded to hear arguments on
sentence post-lunch and awarded capital punishment without
granting adequate opportunity to the accused-appellant to place
mitigating circumstances on record. He further submitted that as
per the settled law laid down by the Hon’ble Supreme Court in
Bachan Singh Vs. State of Punjab, reported in 1983(1) SCR
145 the imposition of death penalty is warranted only when the
case unquestionably falls within the category of “rarest of rare”
and when the alternative option of life imprisonment is foreclosed.
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[2026:RJ-JD:17521-DB] (10 of 31) [MREF-2/2022]In the present case, there is no evidence to suggest that the
offence was premeditated, nor was any weapon carried by the
accused-appellant. The trial court has failed to properly examine
whether the case satisfies the parameters laid down for awarding
capital punishment.
26. In the alternative, learned Senior Counsel submitted that
even assuming the conviction to be justified, the present case
does not fall within the category of “rarest of rare” cases and,
therefore, the sentence of death penalty deserves to be commuted
to life imprisonment.
27. E-converso, learned Additional Advocate General Mr. Deepak
Choudhary has vehemently opposed the submissions advanced on
behalf of learned Senior Counsel for the accused-appellant and
has supported the findings recorded by the learned trial court. He
further submitted that the impugned judgment dated 1.10.2022
does not suffer from any infirmity or illegality and that the
conviction of the accused-appellant for the offences under Section
302, 363 and 376AB IPC along with Sections 3/4 and 5(J)(iv)(i)
(M)/6 of the POCSO Act, 2012 has been rightly recorded on the
basis of reliable and cogent evidence available on record.
Therefore, he prays that the Murder Reference submitted by the
learned trial court for confirmation of death penalty may be
allowed and the appeal filed by the accused-appellant against the
judgment of conviction and sentence passed by the learned trial
court may be rejected.
28. We have bestowed our anxious consideration to the
submissions advanced by learned counsel for the parties and have
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carefully re-appreciated the entire oral as well as documentary
evidence available on record including the impugned judgment
dated 1.10.2022.
29. The testimony of (“R”) PW-4, the mother of the
deceased/victim, as recorded on 28.07.2022, reveals that on the
intervening night of 28-29 June 2022, her husband was at
Ahmedabad for work. She was residing at home with her three
sons and her only daughter, the deceased/victim. At about 9:30
p.m., after having dinner together in the courtyard, the family
retired to sleep on three separate cots arranged therein. One cot
was occupied by PW-4 and one of her sons, the second by another
son, and the third by the youngest child along with the
deceased/victim. At about 10:30 p.m., her husband telephonically
enquired whether the children had slept, to which she replied in
the affirmative and asked him to rest as she also had night duty.
Thereafter, owing to the cool breeze, she fell into deep sleep. Upon
waking at about 5:30 a.m., she noticed that the deceased/victim
was missing from the cot. Initially presuming that the child might
have gone to the bathroom, she waited for some time; however,
when the deceased did not return, she grew anxious and began
searching in the neighbourhood, but of no avail. She then
informed her husband, who returned from Ahmedabad, and upon
the advice of villagers, a missing report (Exhibit P-6) was lodged
at the police station.
30. PW-4 further deposed that at about 5:30 p.m. on the same
day, Sanjay, the son of her brother-in-law, informed them
telephonically that the dead body of the deceased/victim had been
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found inside a culvert (Puliya) at Depat Falla. Upon reaching the
spot, she observed the condition of the body, which bore injuries
including bruising on the private parts and lower back, and a
grievous injury on the right side of the head suggestive of impact
by a stone. The deceased was found without proper clothing. The
inquest proceedings (Exhibit P-1) and site inspection memos
(Exhibits P-4 and P-5) bear her signatures. She also stated that
one PW-3 Moga Katara informed them that at about 6:30 a.m. he
had seen the accused-appellant, Jitendra alias Jitu, emerging from
the culvert with a beer bottle in his hand and a scooter parked
nearby. In cross-examination, she admitted that there was no
prior enmity between her family and the accused-appellant, whose
house was situated opposite theirs, and that both families had
cordial relations. She denied the suggestion that the deceased
might have been killed by some unknown person and falsely
implicated the accused-appellant.
31. PW-3 Moga Katara, a material witness, stated that on
29.06.2022 at about 6:30 a.m., while proceeding on his
motorcycle towards Dungar Fala, he reached the culvert (puliya)
on Depat Falla road and saw the accused Jitendra alias Jitu coming
up from beneath the culvert (puliya) holding a beer bottle, with a
scooter parked nearby. On being questioned as to why he was
drinking at such an early hour, the accused-appellant replied that
he was under stress from the previous night. Thereafter, Moga
proceeded with his work and returned home at about 9:30 a.m.,
by which time news had spread that the deceased was missing.
Later, at about 6:30 p.m., upon learning that the dead body had
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been found at the same culvert (puliya), he went to the spot and
disclosed to the villagers and the police what he had witnessed
earlier in the morning. His statement recorded under Section 164
Cr.P.C. (Exhibit P-2) corroborates his version. In cross-
examination, he admitted that he had not seen the actual
commission of the offence and that his suspicion against the
accused-appellant was based on having seen him at the spot in
the early morning hours. He also acknowledged that the place was
not entirely deserted and that there were houses and shops
nearby.
32. PW-19 Prem Kumar lent partial corroboration to the
testimony of PW-3 by stating that at about 6:00 a.m. on the same
day, while he had gone near the culvert (puliya) to answer the call
of nature, he saw the accused-appellant present there with a
bottle, and Moga Katara questioning him. However, in cross-
examination, he conceded that he had not clearly heard the
conversation between them and had not distinctly seen the beer
bottle, thereby limiting the evidentiary value of his testimony.
33. The medical evidence, as deposed by PW-14 Dr. Gunwanti
Meena, a member of the medical board, establishes that the
postmortem of the deceased was conducted on 30.06.2022. The
examination revealed multiple ante-mortem injuries, including
severe genital trauma, rupture of internal reproductive organs,
and hemorrhages in the head region. The hymen was freshly torn
and there were extensive injuries indicating forcible sexual
assault. Internal examination disclosed subdural and subarachnoid
hemorrhages in the parietal region of the brain. The cause of
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death was opined to be strangulation coupled with head and brain
injuries, and the injuries were stated to have been inflicted within
a short duration prior to death. The doctor clarified in cross-
examination that such injuries could not have been caused by any
animal attack and that absence of visible semen does not rule out
sexual assault, as confirmation requires forensic analysis.
34. The forensic inspection report (Exhibit P-38) further
corroborates the presence of human blood at the site within the
culvert (puliya), where weeds, stones, and debris bore blood
stains were found, thereby affirming that the offence had taken
place at or near the location where the body was recovered.
35. PW-9 Sanjay, another significant witness, deposed that on
the evening of 28.06.2022, he had spent considerable time in the
company of the accused-appellant, during which they consumed
alcohol at multiple locations. He further stated that early the next
morning, the accused-appellant came to his house in a disturbed
state and uttered that he had committed a grave mistake during
the night, though he did not elaborate. This conduct of the
accused-appellant assumes relevance as an incriminating
circumstance. The witness also identified a photograph taken
during their drinking session, and the clothes worn by the
accused-appellant therein were later recovered with blood stains
matching the DNA profile of the deceased.
36. Upon appreciation of the testimony of PW-11 Dixit Kalal, this
Court finds that the said witness has deposed that he is a GNM-
qualified practitioner running a clinic near Pagara Bus Stand at
Dovada. According to him, on 28.06.2022 at about 6:00-6:30
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p.m., the accused Jitendra @ Jitu, along with Sanjay, came to his
clinic on a motorcycle. They expressed their intention to consume
beer, whereupon the witness informed them that beer was not
available at his clinic and could be procured from Dovada.
Thereafter, both persons went out and returned after some time
with beer, and sat inside the clinic where they consumed the
same. The witness has further stated that during this time, Sanjay
was using his mobile phone and taking photographs. He has
specifically deposed that the accused-appellant was wearing a
beige-colored shirt at that time. He also identified the photograph
marked at ‘X’ in Exhibit P-9 as being of his clinic, and stated that
the bench, as well as the clothes and shoes worn by the accused-
appellant, are visible in the said photograph. He clarified that
while he was seated on a chair, the accused-appellant and Sanjay
were sitting on a bench inside the clinic. This circumstance lends
corroboration to the prosecution case regarding the movements,
conduct, and identity of the accused-appellant prior to the
occurrence.
37. Additionally, PW-18 Rakesh, a shopkeeper, deposed that on
the morning of 29.06.2022 at about 6:00 a.m., the accused-
appellant came to his shop on a white scooter and took a bottle of
beer, stating he would pay later. He further stated that the
accused-appellant appeared disturbed and mentioned being
worried about the previous night. This testimony adds to the chain
of circumstances pointing towards the conduct of the accused-
appellant immediately after the incident.
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38. A close scrutiny of the record including the evidence relating
to recovery, seizure, and spot proceedings this Court finds that on
29.06.2022, the dead body of the deceased was recovered from
inside a culvert (Puliya) situated on the road leading to Depat
Falla. The recovery proceedings were conducted by the Station
House Officer in the presence of witnesses Lokendra Singh (PW-
20) and Prakash Chandra (PW-21), and the same were duly
documented vide Exhibit P-51. The spot was also subjected to
videography and photography at the time of recovery, thereby
lending authenticity to the proceedings conducted at the scene.
39. It further emerges from the record that the Forensic Science
Laboratory team from Banswara, headed by Punit Kumar, reached
the spot and, under proper supervision, collected samples from
the scene. These included blood-stained debris, pieces of the
culvert surface, and control samples from the surrounding area.
The said samples were carefully wrapped, marked, and sealed in
accordance with procedure, as reflected in Exhibit P-52. The
samples were marked distinctly, sealed with appropriate seals,
and later sent for forensic examination, thereby maintaining the
sanctity of the chain of custody.
40. The testimonies of PW-20 Lokendra Singh and PW-21
Prakash Chandra, both of whom were present during the
preparation of Exhibits P-51 and P-52, corroborate the manner in
which the recovery and seizure proceedings were carried out.
Though both witnesses are police personnel, nothing material has
been elicited in their cross-examination to discredit their
testimony or to suggest any motive for false implication. Both
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witnesses have consistently stated that the samples were
collected, sealed, and documented at the spot, albeit during night
hours with the aid of artificial lighting. They have also explained
the absence of independent witnesses by stating that no villager
was willing to join the proceedings.
41. The evidence further establishes that on 02.07.2022, the
accused-appellant was arrested in the presence of the said
witnesses, as reflected in Exhibit P-53. Thereafter, on 03.07.2022,
on the basis of information furnished by the accused-appellant,
the investigating officer conducted site verification of the place of
abduction and the place of commission of the offence, which were
documented as Exhibits P-54 and P-55. On the same day, the shirt
and underwear allegedly worn by the accused-appellant at the
time of the incident were recovered from his residence on his
pointing out and were duly seized and sealed vide Exhibits P-56
and P-57. The place of recovery of these articles was also verified
and recorded under Exhibit P-58.
42. The evidence of PW-29 Bhawani Singh, the then Station
House Officer, further substantiates the prosecution case with
regard to the recovery of the dead body, collection of forensic
samples, and subsequent procedural steps taken during
investigation. His testimony establishes that due procedure was
followed in documenting the recovery, securing the evidence, and
forwarding the same to the Forensic Science Laboratory through
proper channels.
43. The Court also notes that the scene of occurrence has been
duly established. As per Exhibit P-4, the place of abduction was
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the residence of the deceased, where she was sleeping on a cot
during the night. This aspect has been duly corroborated by the
testimony of PW-4, the mother of the deceased, as well as PW-3
Moga. The site inspection and verification of the place of abduction
were carried out by the investigating officer in the presence of
witnesses, and the same has been properly documented.
44. In view of the above, this Court finds that the recovery of the
dead body, the collection and sealing of forensic samples, the
subsequent recoveries at the instance of the accused-appellant,
and the verification of relevant places have been duly proved by
the prosecution through reliable and consistent evidence. The
procedural integrity of these steps remains intact, and no material
contradiction or illegality has been shown so as to discredit the
same. These circumstances, therefore, form an important part of
the chain of evidence against the accused-appellant.
45. Thus, the cumulative appreciation of the testimonies of PW-
4, PW-3, PW-19, PW-9, PW-11, PW-18, and recovery witnesses
PW-20, PW-21 along with the medical and forensic evidence,
forms a consistent chain of circumstances, which prima facie
connects the accused-appellant with the crime, subject to judicial
scrutiny on the touchstone of reliability, consistency, and proof
beyond reasonable doubt.
46. Upon a careful and comprehensive evaluation of the evidence
on record, this Court finds that there is no direct eyewitness
account of the actual commission of the offence by the accused-
appellant. However, it is a settled principle of law that conviction
can be based on circumstantial evidence where the chain of
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circumstances is complete and points unequivocally towards the
guilt of the accused-appellant.
47. In the present case, the material on record clearly
establishes that:-
I. The deceased, a minor girl, was taken away from her
place of sleep during the intervening night. The medical
evidence, particularly the post-mortem report,
conclusively proves that the deceased was subjected to
forcible penetrative sexual assault. The post-morterm
report reveals that the victim sustained more than ten
injuries, including grievous injuries to the genital region
and other vital parts of the body, thereby demonstrating
the extreme brutality inflicted upon her. The cause of
death, being strangulation coupled with head injuries,
clearly establishes that the death was homicidal and
occurred after the victim resisted the assault.
II. The testimonies of the prosecution witnesses, when
appreciated in their entirety, consistently support the
prosecution case. PW-3 Moga has categorically deposed
that in the early morning hours, the accused-appellant
was seen emerging from the culvert (puliya) where the
dead body of the deceased was subsequently recovered.
His presence at the place of occurrence at such a crucial
point of time, without any plausible explanation,
constitutes a significant incriminating circumstance. This
aspect is further corroborated, though to a limited extent,
by the testimony of PW-19 Prem Kumar.
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[2026:RJ-JD:17521-DB] (20 of 31) [MREF-2/2022]III. The conduct of the accused-appellant also assumes
importance. It has come on record that the accused-
appellant actively participated in the search for the
deceased after her disappearance. In the facts and
circumstances of the present case, such conduct appears
to be an attempt to maintain a façade of innocence and
deflect suspicion. The accused-appellant has failed to offer
any satisfactory explanation regarding the incriminating
circumstances appearing against him and has instead
attempted to put forth a false version, thereby inviting an
adverse inference.
IV. The report of the Forensic Science Laboratory assumes
significant evidentiary value in connecting the accused-
appellant with the crime. The articles seized during
investigation, including the shirt worn by the accused-
appellant on the day of the incident and the
undergarments of the deceased, were subjected to
scientific examination. The FSL report confirms the
presence of human blood on these articles, and the blood
stains were found to be consistent, thereby establishing a
direct nexus between the accused-appellant and the
deceased.
V. It has further come on record, as per the forensic
evidence, that short hair attributable to the accused-
appellant was detected on the T-shirt of the
deceased/victim. Additionally, the shirt worn by the
accused-appellant was found to bear human blood stains,
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[2026:RJ-JD:17521-DB] (21 of 31) [MREF-2/2022]and upon examination, the DNA profile of the said blood
was determined to be of a female origin. This
circumstance constitutes a strong and incriminating link in
the chain of evidence, as it clearly establishes the
presence of the accused-appellant in close physical
proximity with the victim at or about the time of the
occurrence. The said scientific evidence, being objective in
nature, lends substantial corroboration to the prosecution
case. When read in conjunction with the other
circumstantial and medical evidence available on record,
these forensic findings significantly strengthen the chain
of circumstances pointing towards the involvement of the
accused-appellant.
VI. The evidence collected from the spot, coupled with the
testimonies of the prosecution witnesses, indicates that
the accused-appellant alone had the opportunity and was
actively involved in the commission of the offence. The
testimony of PW-3 Moga, who saw the accused-appellant
alone at the scene of occurrence in the early hours prior
to the recovery of the dead body, assumes considerable
significance. His version regarding the presence of the
accused-appellant at the culvert, along with his conduct of
consuming alcohol and his explanation of being under
mental stress, further strengthens the incriminating
circumstances.
VII. Additionally, the statements of witnesses PW-9 Sanjay and
PW-11 Dixit kalal who were in the company of the
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[2026:RJ-JD:17521-DB] (22 of 31) [MREF-2/2022]accused-appellant prior to the incident establish that he
had consumed alcohol and was in a disturbed state of
mind. The photographic evidence recovered from his
mobile phone, showing him in the same attire as
recovered subsequently, lends further corroboration to the
prosecution case. The recovery of the same shirt worn by
the accused-appellant at the relevant time, bearing
incriminating stains, constitutes an important
circumstance.
VIII. The medical evidence, including the post-mortem report
and photographs of the deceased, when read along with
the forensic findings, forms a consistent and corroborative
evidence. The cumulative effect of these circumstances
establishes a complete chain, which leaves no room for
doubt regarding the involvement of the accused-appellant.
48. The circumstances relied upon by the prosecution have been
firmly established through cogent and reliable evidence, and each
such circumstance forms a consistent and unbroken link in the
chain. These circumstances, when taken cumulatively, are of such
a conclusive nature that they lead to only one irresistible
inference, namely, the guilt of the accused-appellant.
49. The law with regard to a case based purely on circumstantial
evidence has very well been crystalized in the judgment of Hon’ble
Supreme Court in the case of Sharad Birdhichand Sarda
reported in (1984) 4 SCC 116, wherein this Court held thus:
“152. Before discussing the cases relied upon by
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[2026:RJ-JD:17521-DB] (23 of 31) [MREF-2/2022]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 [(1952) 2 SCC 71: AIR 1952
SC 343: 1952 SCR 1091: 1953 Cri LJ 129]:
“It is well to remember that in case 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.”
50. This Court further finds that the prosecution has successfully
satisfied the well-settled principles governing cases based on
circumstantial evidence, commonly referred to as the “five
golden principles” or Panchsheel, as enunciated by the Hon’ble
Supreme Court in the case of Sharad Birdhichand
Sarda(supra). The circumstances from which the conclusion of
guilt is to be drawn have been fully established; the facts so
established are consistent only with the hypothesis of the guilt of
the accused-appellant; the circumstances are of a conclusive
nature and tendency; they exclude every possible hypothesis
except the one sought to be proved; and there exists a complete
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chain of evidence which leaves no reasonable ground for a
conclusion consistent with the innocence of the accused-appellant.
51. Thus, the act committed by the accused-appellant stands as
a crime of extreme brutality and moral depravity, perpetrated
upon a young girl who had not even attained puberty. The nature
and manner of the offence reflect a complete disregard for human
dignity and bodily integrity. The victim, owing to her tender age
and vulnerability, was wholly incapable of defending herself, and
was subjected to inhuman and barbaric treatment. Such conduct,
in the considered view of this Court, is not merely an offence
against an individual but constitutes a grave assault on the
collective conscience of society. The crime displays a degree of
cruelty and perversity which shocks the judicial conscience and
undermines the fundamental values of humanity. It is, therefore,
to be regarded as a Heinous and abhorrent act, warranting the
severest condemnation in the eyes of law.
52. In view of the aforesaid, this Court is satisfied that the
cumulative effect of the evidence on record conclusively
establishes that it is the accused-appellant, and none else, who
has committed the offence in question. The prosecution has,
therefore, succeeded in proving the guilt of the accused-appellant
beyond reasonable doubt.
53. Thus, considering the entire evidentiary position discussed
hereinabove, this Court is of the considered opinion that the
findings recorded by the learned trial Court in its judgment dated
01.10.2022 do not suffer from any infirmity or perversity and are
based on proper appreciation of evidence on record. The
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prosecution has successfully established a complete and unbroken
chain of circumstances, which conclusively proves that the
accused-appellant alone is the perpetrator of the offence in
question. The medical evidence, forensic findings, and the conduct
of the accused-appellant, when read together, exclude every
hypothesis except that of his guilt. Accordingly, the conviction of
the accused-appellant under Sections 302, 363 and 376AB of the
Indian Penal Code along with Sections 3/4 and 5(J)(iv)(i)(M)/6 of
the POCSO Act, 2012, as recorded by the learned trial Court, is
hereby affirmed.
54. The matter was then considered on the question of sentence.
In the present case, the learned trial Court, upon convicting the
accused-appellant, awarded the sentence of death and made a
reference for its confirmation. On behalf of the accused-appellant,
it has been urged that he is a first-time offender, belongs to a
modest socio-economic background, and has family
responsibilities, including his wife and minor children. It has
further been submitted that he has remained in judicial custody
for a considerable period and that the circumstances of the case
do not warrant the imposition of the extreme penalty of death. Per
contra, the learned A.A.G has submitted that the nature and
manner of the offence are Heinous, involving brutal sexual assault
and murder of a minor girl, which shocks the collective conscience
of society. It has been contended that the crime reflects extreme
depravity and brutality, and therefore falls within the category of
the “rarest of rare” cases, justifying the imposition of capital
punishment.
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55. In this regard, it is a well-established legal position that
death penalty can be awarded only in the rarest of rare cases. In
this regard, the Hon’ble Supreme Court has also given guidelines
in Bachan Singh vs State of Punjab Criminal Appeal Nos.
607-608 of 2017; (1982) 3 SCC 24. It is in this context that
the Hon’ble Supreme Court’s decision in Lehna vs. State of
Haryana; Appeal (crl.) 733 of 2001 also, in paragraphs 21, 23
and 29, the following directions were given in this case where
three murders were committed, in that case the death sentence
was commuted to life imprisonment:-
21. In Machhi Singh‘s case (supra), it was observed:-
“The following questions may be asked and answered
as a test to determine the ‘rarest of the rare’ case in
which death sentence can be inflicted:-
(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that
there is no alternative but to impose death sentence
even after according maximum weightage to the
mitigating circumstances which speak in favour of the
offender?”
23. In rarest of rare cases when the collective
conscience of the community is so shocked, that it
will expect the holders of the judicial power center to
inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of
retaining death penalty, death sentence can be
awarded. The community may entertain such
sentiment in the following circumstances:-
(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or dastardly
manner so as to arouse intense and extreme
indignation of the community.
(2) When the murder is committed for a motive which
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[2026:RJ-JD:17521-DB] (27 of 31) [MREF-2/2022]hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-a-vis whom the
murderer is in a dominating position or in a position
of trust; or murder is committed in the course for
betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath, or in cases of ‘bride burning’ or ‘dowry
deaths’ or when murder is committed in order to
remarry for the sake of extracting dowry once again
or to marry another woman on account of infatuation.(4) When the crime is enormous is proportion. For
instance when multiple murders, say of all or almost
all the members of a family or a large number of
persons of a particular caste, community, or locality,
are committed.
(5) When the victim of murder is an innocent child, or
a helpless woman or old or infirm person or a person
vis-a-vis whom the murderer is in a dominating
position, or a public figure generally loved and
respected by the community.
29. As the background facts go to show the genesis of
dispute between the accused and the other members
of his family was land. Accused seems to have taken
exception to his father taking away the land from
him. As the evidence indicates, he considered his
brother, sister-in-law to be responsible for the same.
It is also in evidence that 2-3 days before the
occurrence, there was a bitter quarrel between the
accused and other members of his family. Evidence of
PW-7 is to the effect that there used to be constant
quarrel between PW-6, deceased Jai Bhagwan,
deceased Saroj on one hand and the accused on the
other, over ancestral land. It is also in evidence that
the deceased Jai Bhagwan was not of moral character
and PW-6 had forcibly occupied the land of temple for
which villagers had set on fire a piece of their house.
Though injuries on accused person do not per se
affect prosecution version if reliable; when not
explained it assumes importance if they are serious in
nature. The fact that the injuries were sustained in
the present case by the accused is not disputed. In
fact, PW-7 has admitted that PW-6 had given a
thorough thrashing to the accused in the court-yard
after assaults on the three accused persons. As the
medical evidence indicates, the injuries sustained by
the accused were of very serious nature. It is true
three lives have been lost. But at the same time, the
mental condition of the accused which led to the
assault cannot be lost sight of. The same may not be
relevant to judge culpability. But is certainly a factor
while considering question of sentence. There is no
evidence of any diabolic planning to commit the
crime, though cruel was the act. Deprived of his
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livelihood on account of the land being taken away,
the accused was, as the evidence shows, exhibiting
his displeasure, his resentment. Frequency of the
quarrels indicates lack of any sinister planning to take
away lives of the deceased. The factual scenario gives
impressions of impulsive act and not planned
assaults. In the peculiar background, death sentence
would not be proper. A sentence of imprisonment for
life will be more appropriate. The sentence is
accordingly modified, while confirming the conviction
for offence punishable under Section 302 IPC.”
56. However, in the considered opinion of this Court, the
circumstances of the present case, though grave and serious, do
not demonstrate such an exceptional degree of brutality,
perversity, or extreme depravity so as to shock the collective
conscience of society to the extent that it can be said that the
accused-appellant has crossed all limits of human savagery. It is a
settled principle of law that the imposition of the death penalty
must be reserved for the “rarest of rare” cases, and the Court is
under a duty to record special reasons demonstrating that the
alternative option of life imprisonment is unquestionably
foreclosed. In the absence of such compelling and exceptional
circumstances, it cannot be held that the death sentence is the
only appropriate punishment. Thus, while considering the question
of sentence, this Court has also taken into account the mitigation
report submitted by the Office of the Station House Officer, Police
Station Sadar, District Dungarpur, in compliance with the
directions issued by the Hon’ble Supreme Court in Manoj v.
State of Madhya Pradesh (2023) 2 SCC 353.
57. As per the said report, the accused-appellant Jitendra alias
Jitu, aged about 32 years, belongs to a rural background and is a
resident of Village Mathugamada. He is a married person having a
wife and two minor children. His family comprises his parents,
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siblings, and other dependents, all residing together. The accused-
appellant has studied up to the 12th standard and was engaged in
running a Maa Badi Centre, along with agricultural activities and
small-scale family occupation, including a grocery shop. The socio-
economic condition of the family is modest, and both the accused
and his brother were working as labourers to support the
household.
58. It is further reflected in the report that the accused-appellant
has no prior criminal antecedents, and no previous case has been
registered against him. There is nothing on record to indicate that
the accused-appellant was suffering from any mental or
psychological illness, and he has been described as a person of
normal disposition. The report does not indicate any history of
violence, abnormal behaviour, or prior misconduct on the part of
the accused-appellant.
59. Therefore, considering the mitigating circumstances
emerging from the said report, including the age of the accused-
appellant, his family background, absence of criminal antecedents,
socio-economic conditions, and lack of any mental or psychological
disorder, this Court is required to weigh the same against the
aggravating circumstances of the crime in question.
60. Having given thoughtful consideration to the rival
submissions and upon balancing the aggravating and mitigating
circumstances, this Court finds that while the offence committed is
undeniably grave, heinous, and of a nature that warrants the
severest condemnation, the mitigating factors emerging from the
record, including the age of the accused-appellant, absence of
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prior criminal antecedents, and his socio-economic background,
cannot be altogether ignored.
61. In view of the settled legal principles governing the
imposition of death penalty, particularly that such punishment
must be reserved for the “rarest of rare” cases where the
alternative option is unquestionably foreclosed, this Court is of the
considered view that the present case, though heinous, does not
meet the threshold so as to warrant confirmation of the death
sentence.
62. Consequently, the sentence of death awarded to the
accused-appellant by the learned trial Court under Section 376 AB
IPC Read with 5(J)(iv)(i)(M)/6 POCSO Act,2012 is commuted to
imprisonment for life, meaning imprisonment for the remainder of
his natural life. The conviction and sentence awarded by the
learned trial court for the other offences under Sections 3/4 of
POCSO Act,2012, 302 and 363 of IPC shall remain maintained.
63. Accordingly, the Murder Reference submitted by the learned
trial court seeking confirmation of the death sentence is hereby
answered in negative and the appeal preferred by the accused-
appellant is partly allowed to the extent of challenging the
conviction and sentence under Section 376 AB IPC Read with 5(J)
(iv)(i)(M)/6 POCSO Act,2012 and the death penalty awarded by
the learned trial court to the accused-appellant is commuted to life
imprisonment for the remainder of his natural life.
64. The record of the learned trial Court be sent back forthwith
along with a copy of this judgment.
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65. Before parting with, this Court appreciates the assistance
provided by learned Senior Counsel Shri Vineet Jain, as well as his
assistant Shri Rajeev Bishnoi, Amicus Curaies for deciding the
present Murder Reference as well as Criminal Appeal.
(CHANDRA SHEKHAR SHARMA),J (VINIT KUMAR MATHUR),J
Kartik Dave/C.P. Goyal//-
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