IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  837 OF 2002

State of Rajasthan               …. Appellant

Versus

Naresh @ Ram Naresh               …. Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. This criminal appeal is filed by the State of Rajasthan being aggrieved  

by  the  judgment  and  order  passed  by  the  Rajasthan  High  Court  on  

18.07.2001  acquitting  the  respondent  –  accused  from  the  charges  under  

Sections 302 and 394 of the Indian Penal Code (hereinafter referred to as  

“the IPC”).  The High Court acquitted the respondent of all the charges by  

setting  aside  the  judgment  and  order  of  conviction  passed  against  the  

accused by the trial court.

2. Before  discussing  rival  contentions  of  the  parties,  it  would  be  

necessary to set out certain facts leading to the filing of the first information  

report against the respondent under Sections 302 and 394 of the IPC.

On 12.08.1993, Khushal Singh (PW-21), who was the then S.H.O. of  

the police station, Bassi received an information on wireless that someone  

by killing and also amputating the feet of a lady has taken away her silver  

anklets  and  that  her  dead  body  was  lying  near  village,  Kuthada.   On  

receiving  the  aforesaid  information,  the  SHO alongwith  the  police  party  

rushed  to  the  village,  Kuthada  where  Sita  Ram  S/o  Bhagwan  Sahai  

submitted a written report, Exhibit P-7, on which he made an endorsement.  

On the basis of the aforesaid written report the police registered a case under  

FIR  No.  302  of  1993  under  Sections  302  and  394  of  the  IPC.    On  

13.08.2001 after registration of the said case, police started investigation.

3. During investigation, PW-21 prepared an inquest report of deceased  

Guli Devi, which is exhibited as Exhibit P-8.  Sumer Singh (PW-19), Circle  

Officer inspected the site on 13.08.1993 and prepared the site plan.  He also  

took  into  possession  the  blood  smeared  clothes  of  the  deceased,  blood  

smeared soil, a cement piece of floor of kheli having bloodstains, one strap  

of wrist watch - Exhibit P-5, one lathi and one pair of shoe - Exhibit P-6.  He  

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also recorded the statements of Smt. Mulli Devi, Ram Dayal, Gopal, Sanjay,  

Sita Ram, Mathura, Babu Lal, Smt. Chotta, Ramrai, Rameshwar and Ganesh  

under Section 161 of the Criminal Procedure Code (for short “the Cr.P.C”).

4. The  police  thereafter  went  to  Uttar  Pradesh  in  search  of  accused  

Naresh and apprehended him in the village Pahadi, District Banda (U.P.) and  

brought and produced him before the SHO, Bassi, who in turn arrested him.  

It  is  alleged  that  Naresh  on  20.01.1994  gave  information,  Exhibit  P-17,  

under Section 27 of the Indian Evidence Act for the recovery of ornaments  

of deceased Guli Devi.  It is also alleged that on the basis of the aforesaid  

information, PW-17, recovered a pair of silver anklets of feet, one pair of  

silver bracelets of hands, one pair of silver ear-rings and one golden nose-

ring (nath) from Ramcharan and prepared memo, Exhibit P-14.  Again on  

27.01.1994 accused Naresh gave information, Exhibit P-18, to PW-21 for  

the  recovery  of  “Khurpi”  the alleged weapon of  offence and pursuant  to  

which PW-21 recovered “Khurpi” at the instance of accused Naresh under  

Exhibit P-10.

5. Dr. Kailash Narain (PW-1) conducted the postmortem report of Smt.  

Guli  Devi,  which  is  exhibited  in  trial  as  Exhibit  P-1.   According  to  the  

doctor all the injuries were ante-mortem in nature and the cause of death was  

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hemorrhagic shock associated with Asphyxia due to compression of neck.  

Sugan  Chand,  Tehsildar,  Bassi,  examined  as  (PW-13),  conducted  the  

identification  of  ornaments  and  it  is  alleged  that  Rameshwar  (PW-14),  

husband of deceased Guli Devi correctly identified ornaments of deceased -  

Guli  Devi.   After  completion  of  the  investigation,  the  police  submitted  

charge sheet against the respondent herein under Sections 302 and 394 of the  

IPC in the Court of Judicial Magistrate, Bassi, who in turn, committed the  

case to the Court of Sessions.  The learned Sessions Judge framed charges  

against the accused under Sections 302 and 394 of the IPC to which the  

accused pleaded not guilty and claimed to be tried.   

6. During trial, the prosecution in support of its case examined as many  

as 21 witnesses and exhibited some documents.  Thereafter, the accused was  

examined under Section 313 Cr.P.C. for the purposes of enabling him to  

explain the circumstances existing against him.  The accused, however, did  

not examine any witness in his defence.   

7. On completion of the trial, the learned trial court passed an order of  

conviction  holding  the  accused/respondent  guilty  for  the  offence  under  

Sections 302 and 394 of the IPC.  After passing the order of conviction the  

accused was heard on the question of sentence and thereafter the Sessions  

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Judge passed an order sentencing him to undergo life imprisonment with  

fine.  

8. Being aggrieved by the aforesaid judgment and order passed by the  

trial  court,  the  respondent  herein  filed  an  appeal  in  the  High  Court  of  

Rajasthan, which was registered as D.B. Crl. Jail Appeal No. 331 of 1996.  

The aforesaid appeal came up for hearing before the Division Bench of the  

Rajasthan High Court.   

9. After screening the evidence on record, the High Court held that there  

was no eyewitness to the occurrence and the entire case of the prosecution  

rests on the circumstantial  evidence.   Each of the circumstance allegedly  

making a chain was examined by the High Court and on scrutiny thereof  

held  that  none  of  the  said  circumstances  lead  to  the  inference  that  the  

respondent had committed the aforesaid offence.  The High Court held that  

the circumstances relied upon by the prosecution are full of discrepancies  

and they do not inspire confidence so as to conclude that the accused had  

committed  the  offence.   The  High Court  held  that  the  statements  of  the  

prosecution witnesses relating to “the accused last seen with the deceased”  

do not inspire confidence for none of them specifically said that the accused  

followed the deceased to the field, where the occurrence had taken place.  So  

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far the second circumstance, that the accused was found running from the  

place of incident just after the incident, is concerned, the High Court has  

pointed  out  discrepancies  in  the  evidence  of  PWs-4,  7,  8  and 9  and  on  

analyzing the same held that on the basis of aforesaid evidence it cannot be  

safely concluded that the deceased was last seen in the company of accused  

or that he was found running from the place of occurrence having “Lotah” or  

“Potli” in his hands.   

10. Other circumstance allegedly proved by the prosecution was the fact  

of  recovery  of  ornaments  belonging  to  the  deceased  on the  basis  of  the  

information  furnished  by  the  accused.   In  that  connection,  the  Division  

Bench held that the only evidence, which is relied upon in that regard is the  

evidence of PWs – 20 and 21 and on scrutiny of the same the High Court  

held that a glance at exhibit P-17 merely indicates that accused informed  

Khushal  Singh (PW-21) that  he has sold the ornaments  to Ram Chandra  

Saraf,  Fish Market,  Banda,  whereas,  the  ornaments  were  recovered from  

Ram  Charan  (PW-20).   The  High  Court  also  found  incongruity  in  the  

evidence of PW-20, who has stated that he did not purchase the ornaments.  

He  could  not  give  any  satisfactory  reply  as  to  who  had  left  the  said  

ornaments in his custody and possession.  The High Court also pointed out  

that according to the said witness the accused took away the ornaments on  

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the  same  day,  and  therefore,  there  could  be  no  case  of  recovering  the  

ornaments  shown  by  the  accused  from  PW-20.   Resultantly,  it  was  

concluded that it would not be safe to hold that recovery of ornaments was  

in  consonance  with  the  information  furnished  by  the  accused/Naresh,  

particularly, when neither the ornaments have been recovered from the same  

person about whom the accused had informed nor the shop is  the same,  

about which the accused had indicated.  In that view of the matter, it was  

held  that  the  recovery  of  the  ornaments  and identification  thereof  is  not  

conclusively proved.  

11. The next circumstance given by the High Court relates to the recovery  

of weapon alleged to have been used in the commission of the offence. The  

High Court pointed out that Exhibit P-10, which is “Khurpi”, was recovered  

by the police did not have any bloodstains on it.  Khushal Singh (PW-21) in  

his  cross-examination  has  also  categorically  admitted that  prima-facie  no  

bloodstains were visible on “Khurpi” and for that reason he did not send it to  

the Forensic Science Laboratory.  The High Court also pointed out that the  

place from where the “Khurpi” was recovered was an open place and was  

accessible to all and sundry.  A perusal of Exhibit P-10 indicates that one  

“Khurpi” was recovered under the heap of stones and that “Khurpi” was  

found in a rusted condition.  Another circumstance, which was heavily relied  

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upon by the prosecution and also by the trial court was recovery of strap of  

wrist watch found on the dead body of Guli.  The High Court held that two  

witnesses Kailash (PW-5) and Rameshwar (PW-14) have stated that  they  

found the strap of wristwatch lying near the dead body before the police  

reached the spot and they handed over the same to the police.  The High  

Court, however, on scrutiny of the evidence held that there is no evidence on  

record  to  prove and establish  that  the  said strap  of  wristwatch relates  to  

accused  Naresh.   The  High  Court  also  disbelieved  the  aforesaid  

circumstance, in view of the fact that no watch has been recovered from the  

possession  of  accused  Naresh  to  prove  that  the  recovered  strap  of  wrist  

watch pertains to the watch of Naresh.    

12. After discussing the entire circumstances in the light of evidence on  

record, the High Court held that the prosecution has utterly failed to prove  

any of the circumstances relied upon and consequently it was held that the  

prosecution has failed to prove the guilt of the accused and accordingly the  

High Court acquitted the respondent of all the charges.

13. The State of Rajasthan being aggrieved by the said order of acquittal  

preferred  a  special  leave  petition  on  which  notice  was  issued  and  leave  

granted.  We have heard learned counsel appearing for the parties when the  

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appeal was listed for final hearing, who have painstakingly taken us through  

the evidence on record.   

14. Mr.  Milind  Kumar,  counsel  appearing  for  the  appellant  –  State  of  

Rajasthan submitted before us that there are number of circumstances which  

lead to and prove the guilt of the respondent.  The first circumstance, which  

was relied upon was the “last seen factor” of the accused going after the  

deceased and thereafter coming out alone from the place of occurrence. The  

next circumstance on which the public prosecutor relied upon is the fact of  

smearing the body of the respondent with mud when he was coming from  

the  filed.   The  other  circumstance  heavily  relied  upon was the  factor  of  

recovery  of  jewellery  belonging  to  the  deceased  at  the  instance  of  the  

accused  from Ramcharan  Shahu (PW-20).   The  other  circumstances  like  

recovery of the dagger and the strap of wristwatch near the dead body were  

pressed into service by the public prosecutor.   

15. Mrs.  K.  Sarada  Devi,  the  counsel  appearing  for  the  respondent,  

however,  submitted  that  since the  present  appeal  is  an appeal  against  an  

order of acquittal, the same should not be set aside unless the Court comes to  

a definite conclusion on the basis of cogent and reliable evidence that it is  

the accused who had committed the crime.  It was vehemently submitted by  

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her that if two views are possible on the same evidence, the one in favour of  

the accused must be preferred.  

16. With the help of learned counsel appearing for the parties, we have  

scrutinized  the  evidence  on  record.   The  trial  court  on  the  basis  of  the  

evidence on record held that the prosecution has produced following four  

types of circumstantial evidences:

(i) The accused was examining the palm by way of palmistry, of  

the deceased and there the deceased went towards the field.  

(ii) The accused also went towards the field.

(iii) The accused washed his hands after committing the offence and  

blood of the deceased was found at the field.

(iv) The  accused  returned  from  the  field  smeared  with  mud,  

alongwith a “Potli” in his hand, he was seen going away from  

the  village,  and  upon  the  identification  of  the  accused,  the  

jewellery of the deceased, which had been removed and taken  

away by amputating feet from her body, the same were seized  

and  that  identification  proceedings  of  these  jewellery-items  

were carried out.

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17. Each of the aforesaid circumstance was examined by the trial court in  

the  light  of  the  evidence  on  record  and  at  the  end  it  was  held  that  the  

aforesaid circumstances  prove and establish  that  it  was accused who had  

committed the offence.  The High Court, however, found that none of the  

aforesaid circumstances lead to a definite conclusion that it is the accused  

and accused alone who had committed the offence.   

18.Before  we discuss  the  evidence on record,  we must  bear  in mind the  

scope of interference with an order of acquittal.  An order of acquittal  

should not be lightly interfered with even if the court believes that there  

is some evidence pointing out the finger towards the accused.  This Court  

has dealt with the scope of interference with an order of acquittal in a  

number  of  cases.   The  principle  deducible  from  the  said  Judgments  

regarding the scope of interference with an order of acquittal could be  

summarized and the same is as follows:

In Anil Kumar v. State of U.P., (2004) 13 SCC 257, at page 261, this  

court observed as under:  

“12. “5. There is no embargo on the appellate court reviewing  the  evidence  upon  which  an  order  of  acquittal  is  based.  Generally,  the  order  of  acquittal  shall  not  be  interfered  with  because the presumption of innocence of the accused is further  strengthened  by  acquittal.  The  golden  thread  which  runs  through the web of administration of justice in criminal cases is  that  if two views are possible on the evidence adduced in the   

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case, one pointing to the guilt of the accused and the other to   his  innocence,  the  view  which  is  favourable  to  the  accused   should be adopted. The paramount consideration of the court is  to ensure that miscarriage of justice is prevented. A miscarriage  of justice which may arise from acquittal of the guilty is no less  than  from  the  conviction  of  an  innocent.  In  a  case  where  admissible evidence is ignored, a duty is cast upon the appellate  court to reappreciate the evidence where the accused has been  acquitted, for the purpose of ascertaining as to whether any of  the accused really committed any offence or not. (See Bhagwan  Singh v.  State  of  M.P)  The  principle  to  be  followed  by  the  appellate court considering the appeal against the judgment of  acquittal  is  to  interfere  only  when  there  are  compelling  and  substantial reasons for doing so. If the impugned judgment is  clearly  unreasonable  and  relevant  and  convincing  materials  have  been  unjustifiably  eliminated  in  the  process,  it  is  a  compelling  reason  for  interference.  These  aspects  were  highlighted by this Court in Shivaji Sahabrao Bobade v.  State  of  Maharashtra,  Ramesh  Babulal  Doshi v.  State  of  Gujarat,  Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of   Bihar, State of Punjab v. Karnail Singh and State of Punjab v.  Phola Singh.”

In  Chandrappa v.  State of Karnataka,  (2007) 4 SCC 415,  at  page  

432, this court observed as under:  

“42. …  In  our  considered  view,  the  following  general  principles regarding powers of the appellate court while dealing  with an appeal against an order of acquittal emerge: (1) An appellate  court  has full  power to review, reappreciate  and reconsider the evidence upon which the order of acquittal is  founded. (2) The Code of Criminal Procedure, 1973 puts no limitation,  restriction  or  condition  on  exercise  of  such  power  and  an  appellate  court  on  the  evidence  before  it  may reach  its  own  conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  conclusions”,  “glaring  mistakes”,  etc. are not intended to curtail extensive powers of an appellate  court  in  an  appeal  against  acquittal.  Such  phraseologies  are  more in the nature of “flourishes of language” to emphasise the  reluctance of an appellate court to interfere with acquittal than  

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to curtail the power of the court to review the evidence and to  come to its own conclusion. (4) An appellate court, however, must bear in mind that in case   of  acquittal,  there  is  double  presumption  in  favour  of  the  accused. Firstly, the presumption of innocence is available to   him under the fundamental principle of criminal jurisprudence   that every person shall be presumed to be innocent unless he is   proved  guilty  by  a  competent  court  of  law.  Secondly,  the   accused having secured his acquittal,  the presumption of  his   innocence is further reinforced, reaffirmed and strengthened by  the trial court. (5) If two reasonable conclusions are possible on the basis of   the evidence on record, the appellate court should not disturb  the finding of acquittal recorded by the trial court”.

In State of U.P. v. Gambhir Singh, (2005) 11 SCC 271, at page 272,  

this court observed as under:  

“We do not feel  persuaded to interfere with the order  of  the  High Court in an appeal against acquittal. It is well settled that  if on the same evidence two views are reasonably possible, the  one in favour of the accused must be preferred”.  

19. When we examine the present case in the light of the background of  

the aforesaid legal principles, we find that none of the circumstances relied  

upon  by  the  prosecution  stands  proved  against  the  accused  leading  to  a  

definite conclusion that it was the accused, who had committed the offence.  

It has come on evidence that deceased went towards the field on 12.08.1993  

at about 3 o’clock and that accused Naresh also went to the field with a  

“Lotah” in his hand.  However, such a statement appears not to have been  

made before the police and the same was found to be an improvement by the  

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High Court and recorded so in the Judgment.  Mathura (PW-4) has stated in  

her deposition that she had gone to the “Kothi” for feeding the cattle.  She  

has also stated that when she was sitting at the field for drinking water to  

cattle,  she saw accused Naresh was running towards the village and that  

accused was having a “Gaddi” with him and also one “Gaon”.    In her cross-

examination, she stated that she had seen the accused sitting at the “Kheli”  

and that she had turned her back towards accused/Naresh because accused  

was washing his hands.  If that witness was present  in the field near the  

place of occurrence, there was no occasion as to why she would not have  

seen the alleged actual occurrence.   If the accused committed the offence he  

must have stayed at the place of occurrence for a very long time as it  is  

alleged that the accused had amputated both feet of the deceased and a pair  

of silver anklets of feet, one pair of silver bracelets of hands, one pair of  

silver ear-rings and one golden nose-ring (nath) were allegedly taken away  

by him.  When the allegation is that of amputation of both the feet by use of  

a “Khurpi” the same must have taken considerable time during the course of  

which the said witness (PW-4) would have seen the occurrence itself.  There  

is also no explanation from PW4 as to why she turned her back when she  

saw accused washing him hands.  She does not state that she had seen the  

deceased with the accused nor does she state that she had seen the accused  

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smeared with mud.

20. There is not even a single statement coming from any of the witnesses  

that they had seen any water being smeared with blood of the deceased or  

any  soil  of  the  field  being  smeared  with  human  blood.   Some  of  the  

witnesses  have  stated  that  accused  was smeared  with  mud when he was  

returning from the field whereas Mathura (PW-4) does not say so.  She only  

states that she saw him running from the fields.  It is also not known why the  

said  witness  had  turned  her  back  towards  the  accused  only  because  the  

accused was washing his hands.  If accused was washing his hands as stated  

by Mathura (PW-4)  there  is  no likelihood of  body of  the  accused being  

smeared with mud as alleged by some of the prosecution witnesses (PWs 7  

& 8).   

21. The learned trial court also held accused guilty because the strap of  

wristwatch was found near the dead body of the deceased, which allegedly  

belong to the accused.  On scrutiny of the evidence, we do not find any such  

direct evidence that the said strap of wristwatch belongs to the watch of the  

accused.  None of the witnesses stated that such strap of wristwatch belongs  

to the accused nor any wristwatch has been recovered from the accused.   So  

far the time of occurrence is concerned there is also no unanimity and the  

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evidence  is  scanty  regarding  the  time of  occurrence.   In  our  considered  

opinion, the evidence regarding commission of offence by the accused in the  

field  and  also  amputation  of  legs  of  the  deceased  is  neither  cogent  nor  

reliable, and therefore, those circumstances cannot be relied upon for basing  

conviction of the respondent.   

22. So far the circumstance about the recovery of ornaments is concerned,  

the star witness in that regard is PW-20.  The said ornaments were recovered  

at the instance of accused from the custody and possession of PW-20. We  

have very carefully analysed the evidence of PW-20 so as to find out the  

credibility of the said witness.  He had stated in his examination-in-chief that  

the accused came to him saying that he wanted to sell the jewellery of his  

house.  The said witness, however, stated that they did not purchase such  

jewellery, which was, however, seized later on from him. He stated in his  

cross-examination that they do the business for making new ornaments from  

the old ornaments. He also stated that the said jewellery was not for their use  

and hence  they  refused to  purchase.   He also stated  that  Naresh/accused  

himself is a gold smith hence he used to come to him earlier also.  He also  

stated that Naresh asked him to keep the jewellery and told that he would  

come back soon, and therefore, he kept the said jewellery and that on the  

same day accused took away his ornaments.  If the accused has taken away  

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the jewellery on the same day then how could the police recover the same  

jewellery from the custody and possession of PW-20.  Besides, since he had  

stated that he would not purchase the jewellery there was no occasion for  

Naresh to keep that jewellery with PW-20.  In the disclosure statements the  

accused stated that he sold the jewellery to Ram Chandra Saraf whereas the  

same was recovered from PW-20.  On scrutinizing the evidence, we find that  

the aforesaid recovery of jewellery is shrouded in a total mystery as it was  

not recovered from the place and person to whom allegedly accused sold.

23. So far recovery of “Khurpi” is concerned the same admittedly did not  

contain  any  bloodstains  on  it  and  it  was  recovered  from an  open  place.  

Since  there  was  no  bloodstain  on  it,  the  police  also  did  not  send  it  for  

chemical examination.  Therefore, it cannot be said that the said weapon was  

used for committing murder of the deceased.  There could be some suspicion  

regarding the conduct of the accused at the time of occurrence but the same  

cannot in any manner conclusively prove and establish that the accused has  

committed the murder of the deceased.  Unless and until we are satisfied that  

the evidence adduced clearly and pointedly establish the guilt of the accused  

we cannot pass an order of conviction by setting aside the order of acquittal.  

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24. The view that is taken by the High Court is found to be a plausible  

view, and therefore, the benefit must always go to the accused and not to the  

prosecution.  If the prosecution wants to prove the fact, the same must be  

proved  by  leading  evidence,  which  is  reliable  and  trustworthy,  which  

pinpoints and conclusively proves the guilt of the accused.  This is not a case  

where  we  can  safely  hold  that  the  evidence  led  was  trustworthy  and  

conclusively establishes that it is the accused only, who had committed the  

offence.  Considering the entire facts and circumstances of the case we are  

not inclined to interfere with the order of acquittal.   

25. We, accordingly, dismiss this appeal and uphold the order of acquittal  

passed by the Division Bench of the High Court.

 …................………………..J.   [Dalveer Bhandari]

 …......………………………J.        [Dr. Mukundakam Sharma]

New Delhi, August  26, 2009

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