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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Criminal Appeal No. 1328/2016

Devendra Nagar S/o Shri Gopal Lal, R/o Haripura, Police Station

Bhawani Mandi, District Jhalawar, Rajasthan. At Present In

District Jail, Jhalawar.

----Accused/Appellant

Versus

State Of Rajasthan Through PP

----Respondent

For Appellant(s) : Mr. Susheel Pujari with

Mr. Shyam Bihari Guatam

For Respondent(s) : Mr. Amit Kumar Punia, PP

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

28/04/2026

Date of Conclusion of Arguments : 28.04.2026

Date on which judgement is reserved : 28.04.2026

Whether the full judgment or only the

operative part is pronounced : Full Judgement

Date of pronouncement : 11.05.2026

Per Hon’ble MAHENDAR KUMAR GOYAL, J.

By way of this criminal appeal, the appellant-accused (for

brevity, ‘appellant’) has assailed the legality and validity of the

judgement dated 31.05.2016 passed by the learned Additional

Sessions Judge, Bhawani Mandi, District Jhalawar (for brevity,

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‘learned trial Court’) in Sessions Case No.37/2014 whereby, he

has been convicted and sentenced as under:-

Section 302 IPC:- Life imprisonment and fine of

Rs.20,000/-; in default whereof, six months’ additional

simple imprisonment.

The relevant facts in nutshell are that the complainant-

Kalulal (PW5) lodged a written report at about 10:00 am on

30.03.2014 with Police Station Bhawani Mandi wherein, it was

averred that his daughter-Dhapu Bai was married about ten years

ago to the appellant who used to beat her. It was stated that on

that day, at about 7:00 am, her father-in-law-Gopal informed him

telephonically that his daughter has died and when he went to

Haripura, he found the mark of injuries on her head and neck. It

was alleged that his daughter was either beaten to death by the

appellant or by throttling. Based thereupon, an FIR No.128 dated

30.03.2014 was registered at Police Station Bhawani Mandi,

District Jhalawar for the offence under Section 302/304B IPC.

After investigation, the appellant was charge-sheeted under

Section 302 IPC whereunder, charge was also framed against him.

After trial, he has been convicted and sentenced, as stated

hereinabove.

Assailing the impugned judgement, learned counsel for the

appellant contended that the findings of the learned trial Court are

based on conjectures and surmises and there was no legally

admissible evidence available on record against him. He

contended that although, the case is based on circumstantial

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evidence but, the prosecution has miserably failed to establish the

complete chain of circumstances leading to only conclusion of his

guilt. Referring to and relying upon the testimony of Kalulal

(PW5), Badrilal (PW7), Balram (PW8), Sita (PW9), Balchand

(PW12) and Prem Bai (PW15)-father, mother and other relatives of

the deceased, he would contend that the allegation against the

appellant of beating the deceased could not be established

therefrom. Inviting attention of this Court towards the

postmortem report (Ex.P9) of the body of the deceased as also

the testimony of Dr. Manoj Kumar Gupta (PW13) and Dr.

Rohitashv (PW14), learned counsel submitted that even it was not

proved that it was a case of homicidal death and a possibility of it

being a suicidal death, could not be ruled out. He submitted that

even otherwise, there was no evidence that the strangulation was

either on account of throttling or by any other means. He,

therefore, prayed that the appeal be allowed, the judgement

impugned dated 31.05.2016 be quashed and set aside and he be

acquitted of the charge framed against him. He, in support of his

submissions, relied upon a judgement of the Hon’ble Supreme

Court of India in the case of Musheer Khan @ Badshah Khan

and Another Vs. State of MP: MANU/SC/0065/2010.

Per contra, learned Public Prosecutor, opposing the

submissions, contended that findings of the learned trial Court are

based on appreciation of cogent evidence available on record in its

right perspective which warrant no interference. He further

submitted that the prosecution was able to establish guilt of the

appellant by establishing the complete chain of circumstances

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leading to irresistible conclusion only of his guilt. He, therefore,

prayed for dismissal of the appeal.

Heard. Considered.

As per the prosecution case, the appellant and the deceased

were married for about ten years, he used to beat her almost on

daily basis and ultimately, murdered her in the night of

29.03.2014 either by beating or by strangulation.

Indisputably, there is no eye witness to the incident and the

case hinges on circumstantial evidence. The prosecution story

begins from the written report (Ex.P2) submitted by Shri Kalulal

(PW5)-father of the deceased. In it as also in his examination-in-

chief, Kalulal has alleged that soon after the marriage, the

appellant started beating his daughter and she used to inform him

so telephonically almost every other day; however, during his

cross-examination, he could not reveal either his mobile number

or of his daughter or any other mobile number being used by

them. He has further admitted, during his cross-examination, that

his daughter was living with the appellant for last about ten years

without any complaint. It demolishes the allegation levelled by

him in his deposition. Further, Smt. Sita (PW9)-mother of the

deceased did not support the prosecution case and turned hostile.

Although, upon cross-examination by the learned Additional Public

Prosecutor, she has stated that her daughter died on account of

beating by her husband and whenever she visited her maternal

home, she used to complain of beating. But, during her

cross-examination by the defence, she has stated that her

daughter never informed her of beating by the appellant.

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Thus, the testimony of neither father nor of mother of the

deceased inspires confidence that the appellant used to beat the

deceased after the marriage.

In this regard, the prosecution has also relied upon the

testimony of Badrilal (PW7), Balram (PW8), Balchand (PW12) and

Prem Bai (PW15) While, Badrilal happened to be uncle of the

deceased but, he has levelled no allegation against the appellant

rather, has stated that he was unaware who has murdered her.

The testimony of another uncle of the deceased namely Balram is

based on hearsay inasmuch as he has stated that her father had

informed him that she was beaten by the appellant a day prior to

her death. Her cousin-Balchand, although has stated, in his

examination-in-chief, that whenever the deceased used to come,

she complained of quarrel with the appellant but, during his cross-

examination as PW12, he has admitted that whenever his sister

used to visit their home, she always informed of everything being

well and happy. Prem Bai-aunty of the deceased, has stated

during her cross-examination that she was not aware as to what

happened. Thus, the aforesaid deposition also does not lead to

any conclusion, much less beyond reasonable doubt, that the

appellant used to beat the deceased and had murdered her by

doing so. However, the learned trial Court has recorded a finding

that the appellant used to beat the deceased not only relying upon

the aforesaid sketchy evidence but, also on premise that Sita

(PW9)-mother of the deceased was not suggested by the defence

that the deceased never informed either her husband or her son of

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beating by the appellant. We do not countenance such approach

being against all the settled canons of criminal jurisprudence.

It may also be worthy to mention here that there was not a

whisper of allegation against the appellant of subjecting the

deceased to beating either for demand of dowry or otherwise. As a

matter of fact, the prosecution case is completely silent as to the

reason or the motive for which the appellant used to beat the

deceased which, even otherwise also, could not be established by

the prosecution as observed hereinabove.

A perusal of the judgement impugned dated 31.05.2016

reflects that the learned trial Court has heavily relied upon the

provisions of Section 106 of Evidence Act to draw an inference

that since, the deceased was married to the appellant and had

met an unnatural death in her sasural (in-laws’ house), a heavy

burden lay upon the appellant to explain the circumstances

whereunder death took place in which not only he failed rather,

offered false plea of alibi too. So far as the plea of alibi is

concerned, we are in agreement with the learned trial Court that

the same could not be proved by the appellant. However, it does

not lessen the rigor of burden on the prosecution to prove the

foundational facts necessary for applicability of Section 106 of

Evidence Act.

Their Lordships of Supreme Court have, in the case of Binay

Kumar Singh and Others Vs. State of Bihar:

MANU/SC/0088/1997 , while dealing with an identical issue,

authoritatively held as under:-

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“23. The Latin word alibi means "elsewhere" and

that word is used for convenience when an accused

takes recourse to a defence line that when the

occurrence take place he was so far away from the

place of occurrence that it is extremely improbable

that he would have participated in the crime. It is a

basic law that in a criminal case, in which the

accused is alleged to have inflicted physical

injury to another person, the burden is on the

prosecution to prove that the accused was

present at the scene and has participated in the

crime. The burden would not be lessened by the

mere fact that the accused has adopted the

defence of alibi. The plea of the accused in such

cases need be considered only when the burden

has been discharged by the prosecution

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(emphasis supplied)

Thus, in the aforesaid case, it was held that it is for the

prosecution to establish that the accused was present at the scene

of crime and has participated in it even if the accused has not

been able to establish the defence of alibi or was unable to offer

any defence.

However, in the instant case, we find that the prosecution

has not been able to discharge its primary burden by proving

presence of the appellant at the scene of crime when the offence

was allegedly committed. Indisputably, the deceased has died an

unnatural death in her in-laws’ house but, unless the prosecution

was able to establish presence of the appellant in the house, along

with the deceased, at the time of her death, in our considered

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view, this fact alone was not sufficient to invite applicability of

Section 106 of Evidence Act and to cast a burden upon the

appellant to establish the circumstances whereunder, the death

took place.

The Hon’ble Supreme Court of India has, in the case of

Satye Singh and Another Vs. State of Uttarakhand: Criminal

Appeal No.2374/2014 decided on 15.02.2022 , held as

under:-

“15. Applying the said principles to the facts of the

present case, the Court is of the opinion that the

prosecution had miserably failed to prove the entire

chain of circumstances which would unerringly

conclude that alleged act was committed by the

accused only and none else. Reliance placed by

learned advocate Mr. Mishra for the State on Section

106 of the Evidence Act is also misplaced, inasmuch

as Section 106 is not intended to relieve the

prosecution from discharging its duty to prove the

guilt of the accused. In Shambu Nath Mehra vs.

State of Ajmer, AIR (1956) SC 404, this court had

aptly explained the scope of Section 106 of the

Evidence Act in criminal trial. It was held in para 9:

“9. This lays down the general rule

that in a criminal case the burden of

proof is on the prosecution and Section

106 is certainly not intended to relieve

it of that duty. On the contrary, it is

designed to meet certain exceptional

cases in which it would be impossible,

or at any rate disproportionately

difficult, for the prosecution to

establish facts which are “especially”

within the knowledge of the accused

and which he could prove without

difficulty or inconvenience. The word

“especially” stresses that. It means

facts that are preeminently or

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exceptionally within his knowledge. If

the section were to be interpreted

otherwise, it would lead to the very

startling conclusion that in a murder

case the burden lies on the accused to

prove that he did not commit the

murder because who could know better

than he whether he did or did not. It is

evident that that cannot be the

intention and the Privy Council has

twice refused to construe this section,

as reproduced in certain other Acts

outside India, to mean that the burden

lies on an accused person to show that

he did not commit the crime for which

he is tried. These cases are Attygalle v.

Emperor [AIR 1936 PC 169] and

Seneviratne v. R. [(1936) 3 All ER 36,

49]”

16. In the case on hand, the prosecution having

failed to prove the basic facts as alleged against the

accused, the burden could not be shifted on the

accused by pressing into service the provisions

contained in section 106 of the Evidence Act. There

being no cogent evidence adduced by the prosecution

to prove the entire chain of circumstances which may

compel the court to arrive at the conclusion that the

accused only had committed the alleged crime, the

court has no hesitation in holding that the Trial Court

and the High Court had committed gross error of law

in convicting the accused for the alleged crime,

merely on the basis of the suspicion, conjectures and

surmises.”

In the case of Smt. Gargi vs. State of Haryana: Criminal

Appeal No.1046/2010 decided on 19.09.2019 , the Hon’ble

Supreme Court held as under:-

“28. The prosecution has relied upon another

circumstance that the deceased was lastly in the

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company of the appellant and she had failed to

explain his whereabouts as also the circumstances

leading to his death.

28.1. Insofar as the ‘last seen theory’ is concerned,

there is no doubt that the appellant being none other

than the wife of the deceased and staying under the

same roof, was the last person the deceased was

seen with. However, such companionship of the

deceased and the appellant, by itself, does not mean

that a presumption of guilt of the appellant is to be

drawn. The Trial Court and the High Court have

proceeded on the assumption that Section 106 of the

Indian Evidence Act directly operates against the

appellant. In our view, such an approach has also not

been free from error where it was omitted to be

considered that Section 106 of the Indian Evidence

Act does not absolve the prosecution of its primary

burden. This Court has explained the principle in

Sawal Das (supra) in the following:

10. Neither an application of Section 103

nor of 106 of the Evidence Act could,

however, absolve the prosecution from the

duty of discharging its general or primary

burden of proving the prosecution case

beyond reasonable doubt. It is only when the

prosecution has led evidence which, if

believed, will sustain a conviction, or which

makes out a prima facie case, that the

question arises of considering facts of which

the burden of proof may lie upon the

accused……

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28.3. In the given set of circumstances, the last seen

theory cannot be operated against the appellant only

because she was the wife of the deceased and was

living with him. The gap between the point of time

when the appellant and deceased were last seen

together and when the deceased was found dead had

not been that small that possibility of any other

person being the author of the crime is rendered

totally improbable. In SK. Yusuf (supra), this Court

has said:

21. The last seen theory comes into play

where the time gap between the point of

time when the accused and the deceased

were last seen alive and when the deceased

is found dead is so small that possibility of

any person other than the accused being the

author of the crime becomes impossible.”

The learned trial Court has held that since, the deceased was

wife of the appellant and has died behind closed doors in a room

in her sasural during night, heavy burden lay upon the appellant

to explain the suspicious circumstances but, in absence of any

evidence to demonstrate that they were together in the night in

the same room or under the same roof, in the backdrop of

authoritative pronouncement of the Hon’ble Supreme Court in the

cases of Satye Singh and Another (supra) and Smt. Gargi

(supra), we are not persuaded to approve the approach of the

learned trial Court and are of the view that the prosecution could

not prove the foundational facts necessary to invite applicability of

Section 106 of Evidence Act.

Further, although, the complainant has, neither in the written

report (Ex.P2) nor, in his examination-in-chief stated that he saw

the appellant at the scene of crime in the morning but, during his

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cross-examination as PW5, he has stated that he did not see him

there and has, in the same breath, stated that he was there.

Although, Badrilal (PW7), Balchand (PW12) and Prem Bai (PW15)

have accompanied the parents of the deceased to the scene of

crime after receiving telephonic information but, did not depose of

seeing the appellant there at that time. However, Balram (PW8)

has stated, during his cross-examination, that when they again

reached the scene of crime, the appellant was present; but, he

has also stated that the appellant was arrested from the scene of

crime however, as per the arrest memo (Ex.P10), the appellant

was arrested on 01.04.2014 and Shri Revat Singh (PW16)-the

Investigating Officer has categorically stated that he did not find

the appellant at the scene of crime. Although, it could be

canvassed that there was a time lag of almost two hours in

between when the family members of the deceased had reached

the scene of crime and when they again reached there along with

the police but, it was not the prosecution case that the appellant

fled in the meanwhile. In view thereof, we are convinced that the

prosecution could not establish presence of the appellant at the

scene of crime. We also find that although, the appellant has, as

DW1, admitted that he was present at home till 4:00 pm on

29.03.2014 but, neither it was proved that the deceased was

murdered before that nor, that she was not seen alive thereafter.

As per the autopsy report (Ex.P9), there were abrasions and

bruises on the left and right side of the neck with an abrasion

below chin towards left side. Cricoid cartilage was found to be

damaged and moved downwards with fracture of hyoid bone.

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Trachea was also damaged and moved downwards which stood

corroborated from the testimony of Dr. Manoj Kumar Gupta

(PW13) and Dr. Rohitashv Kumar (PW14)-the Members of the

Medical Board which conducted the postmortem. Cause of death

was found to be asphyxia on account of strangulation. Both the

medical experts have admitted during their cross-examination that

it could be a case of suicide as well. Although, cause of death was

opined to be strangulation but, the prosecution led no evidence to

establish the means allegedly employed by the appellant to cause

it; either by throttling or by strangulation by any other means

such as tourniquet. Further, in the site plan (Ex.P5), the scene of

crime is shown to be the room belonging to the appellant but, it

reflects that no sign of worth recovery/mention was found by the

Investigating Officer. Even it is not mentioned therein as to

whether the strangulation happened on a cot/bed or mattress or

on bare floor. It is also not revealed as to how the room was found

to be the scene of crime in absence of any sign as, indisputably,

when the family members of the deceased reached, the body was

lying in the veranda. There is no evidence available on record at

all to demonstrate as to who and in what manner brought the

dead body from the room to the veranda. Therefore, we have

reasons to doubt that the incident occurred inside the room or

that it was behind the closed doors or that it was during night or

even, that it was homicidal or suicidal especially, in view of the

testimony of the Members of the Medical Board.

Moreover, the judgement impugned dated 31.05.2016

reflects self-contradictory findings recorded by the learned trial

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Court as to cause of death of Smt. Dhapu Bai. On page 34 of the

judgement, the learned trial Court has held that it was firmly

established that the appellant committed murder by

beating/throttling. On page 36, the learned trial Court recorded a

finding that it was very well established prima facie that the

appellant inflicted injuries and she died either on account of

beating or on account of throttling. However, in the concluding

paragraph, it was held that Dhapu was murdered either by beating

or by throttling.

While dealing with a case of circumstantial evidence, Their

Lordships have, in the case of Musheer Khan @ Badshah Khan

and Another (supra), held as under:-

“46. In a case of circumstantial evidence, one must

look for complete chain of circumstances and not on

snapped and scattered links which do not make a

complete sequence.

47. This Court finds that this case is entirely based

on circumstantial evidence. While appreciating

circumstantial evidence, the Court must adopt a

cautious approach as circumstantial evidence is

"inferential evidence" and proof in such a case is

derivable by inference from circumstances.

48. Chief Justice Fletcher Moulton once observed

that "proof does not mean rigid mathematical"

formula since "that is impossible". However, proof

must mean such evidence as would induce a

reasonable man to come to a definite conclusion.

Circumstantial evidence, on the other hand, has been

compared by Lord Coleridge "like a gossamer thread,

light and as unsubstantial as the air itself and may

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vanish with the merest of touches". The learned

Judge also observed that such evidence may be

strong in parts but it may also leave great gaps and

rents through which the accused may escape.

Therefore, certain rules have been judicially evolved

for appreciation of circumstantial evidence.

49. To my mind, the first rule is that the facts

alleged as the basis of any legal inference from

circumstantial evidence must be clearly proved

beyond any reasonable doubt. If conviction rests

solely on circumstantial evidence, it must create a

network from which there is no escape for the

accused. The facts evolving out of such circumstantial

evidence must be such as not to admit of any

inference except that of guilt of the accused. {See

Raghav Prapanna Tripathi and Ors. v. State of

U.P. MANU/SC/0127/1962 : AIR 1963 SC 74}.

50. The second principle is that all the links in the

chain of evidence must be proved beyond reasonable

doubt and they must exclude the evidence of guilt of

any other person than the accused.

{See: State of UP v. Ravindra Prakash Mittal

MANU/SC/0402/1992 :1992 Crl.L.J 3693(SC) - (Para

20)}

51. While appreciating circumstantial evidence, we

must remember the principle laid down in Ashraf Ali

v. Emperor 43 Indian Cases 241 at para 14 that

when in a criminal case there is conflict between

presumption of innocence and any other

presumption, the former must prevail.

52. The next principle is that in order to justify the

inference of guilt, the inculpatory facts must be

incompatible with the innocence of the accused and is

incapable of explanation upon any other reasonable

hypothesis except his guilt.

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53. When a murder charge is to be proved solely on

circumstantial evidence, as in this case, presumption

of innocence of the accused must have a dominant

role. In Nibaran Chandra Roy v. King Emperor

MANU/WB/0164/1907 : 11 CWN 1085 it was held the

fact that an accused person was found with a gun in

his hand immediately after a gun was fired and a

man was killed on the spot from which the gun was

fired may be strong circumstantial evidence against

the accused, but it is an error of law to hold that the

burden of proving innocence lies upon the accused

under such circumstances. It seems, therefore, to

follow that whatever force a presumption arising

under Section 106 of the Indian Evidence Act may

have in civil or in less serious criminal cases, in a trial

for murder it is extremely weak in comparison with

the dominant presumption of innocence.

54. Same principles have been followed by the

Constitution Bench of this Court in Govinda Reddy

v. State of Mysore MANU/SC/0160/1958 : AIR 1960

SC 29 where the learned Judges quoted the principles

laid down in Hanumant Govind Nargundkar and

Anr. v. State of Madhya Pradesh

MANU/SC/0037/1952: AIR 1952 SC 343. The ratio in

Govind (supra) quoted In paragraph 5, page 30 of

the reports in Govinda Reddy (supra) are:

In cases where the evidence of a

circumstantial nature, the circumstances

which lead to the conclusion of guilt should

be in the first instance fully established, and

all the facts so established should be

consistent only with 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 complete as not to

leave any reasonable doubt for a conclusion

consistent with the innocence of the accused

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and it must be shown that within all human

probability the act must have been

committed by the accused.

55. The same principle has also been followed by

this Court in Mohan Lal Pangasa v. State of U.P .

MANU/SC/0425/1974: AIR 1974 SC 1144.”

In the celebrated judgement of Sharad Birdhichand Sarda

Vs. State of Maharashtra: (1984) 4 Supreme Court Cases

116, the Hon’ble Apex Court has laid following golden principles to

be kept in mind while considering a case of circumstantial

evidence:-

“153. A close analysis of this decision would

show that the following conditions must be fulfilled

before a case against an accused can be said to be

fully established:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be

fully established.

It may be noted here that this Court indicated that

the circumstances concerned 'must or should' and

not 'may be' established. There is not only a

grammatical but a legal distinction between 'may be

proved' and 'must be or should be proved' as was

held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra MANU/SC/0167/1973: 1973

CriLJ 1783 where the following observations were

made:

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

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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.”

If the prosecution evidence is tested on the touchstone of

the aforesaid principles laid down by the Hon’ble Supreme Court

of India, we find that the prosecution has not been able to

establish any link in the chain of circumstantial evidence much

less the complete chain, leading to the irresistible conclusion only

of guilt of the appellant. In view thereof, findings recorded by the

learned trial Court are not found to be sustainable in the eye of

law and the appeal deserves to be allowed.

Resultantly, the appeal is allowed. The judgement impugned

dated 31.05.2016 passed by the learned Additional Sessions

Judge, Bhawani Mandi, District Jhalawar is quashed and set aside.

The appellant is acquitted of the charge framed against him. He be

set at liberty forthwith if not required to be detained in any other

case.

In view of the provisions of Section 437-A CrPC (Section 481

Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely

Devendra Nagar S/o Shri Gopal Lal is directed to furnish a

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personal bond in the sum of Rs.25,000/- and a surety in the like

amount within four weeks before the Registrar (Judl.) of this Court

which shall be effective for a period of six months with the

stipulation that in the event of Special Leave Petition being filed

against the judgement or on grant of leave, the appellant

aforesaid, on receipt of notice thereof, shall appear before the

Hon’ble Supreme Court.

(BHUWAN GOYAL),J (MAHENDAR KUMAR GOYAL),J

PRAGATI/34