Ashok Kumar Vs State of Rajasthan through Pp

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

D.B. Criminal Appeal No. 832/2016

Ashok Kumar son of Shri Moolchand Balai, aged about 25 years, resident of Village Mundota, Police Station Kalwad, District Jaipur (Raj.). At present confined in Central Jail, Jaipur.

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----Accused/Appellant

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Versus

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State Of Rajasthan through PP

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----Respondent

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For Appellant(s) : Mr. Prahlad Sharma with Mr. Khem Singh Rajawat Mr. Ram Prasad Sharma For State : Mr. Shree Ram Dhakar, P.P. For Complainant : Mr. Mukesh Kumar Saini

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE SAMEER JAIN

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Judgment

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09/02/2026

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(Per: HON’BLE SAMEER JAIN, J.)

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The appeal is preferred assailing the judgment dated 15.07.2016 passed by learned Additional Sessions Judge (Women Atrocities Cases) No. 2, Metropolitan City, Jaipur (hereinafter referred to as “learned Trial Court”) in sessions case No. 236/2015 whereby, the appellant has been convicted for the offence under sections 376 and 302 of Indian Penal Code (hereinafter referred to as “IPC”) and sentenced for imprisonment for life, regarding offence under section 302 of IPC along with a fine of Rs. 20,000/and in default for making payment of fine, further one year rigorous imprisonment, simultaneously, for offence under section 376 of IPC rigorous imprisonment of ten years along with fine of

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Rs. 10,000/- and in default for making payment of fine further six months rigorous imprisonment has been awarded.

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The relevant facts in brief as narrated by the learned counsel appearing for the appellant are that an FIR bearing number 80/2013 was registered at Police Station Jhotwara, Jaipur (South) for the offences under Sections 302, 376 and 384 of IPC. Thereafter, the police initiated investigation as per the due process, and the appellant was arrested on 24.03.2013, and upon completion of the investigation on 24.04.2013 charge sheet bearing number 158/2013 was filed before the learned Magistrate concerned, from where the matter was committed to the Sessions Judge as it was triable thereby. Subsequently, the matter was again transferred to the Additional Sessions Judge (Women Atrocities Cases) No. 2, Metropolitan City, Jaipur for further trail and adjudication.

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It is submitted that the learned Trial Court has committed gross illegality in passing the impugned judgment and sentence dated 15.07.2016, as the material and vital aspects of the case were not duly considered. It is submitted that the learned Trial Court failed to appreciate the statements of the eyewitnesses, namely PW-4, PW-5, PW-6 and PW-7, who were present in the house of the deceased at the relevant time. From their statements, it has been categorically stated that on 27.01.2013, the family members were sleeping when the incident occurred, and the deceased was found to be on fire. It is further submitted that, in an attempt to save the deceased from the fire, both hands of the appellant were burnt, which fact has also been duly

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corroborated by the statements of other prosecution witnesses and the arrest memo of the appellant wherein it is stated that the appellant was under treatment at SMS Hospital, Jaipur.

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PW-4 stated that the deceased and the appellant were living cordially, and that he was not aware of any dispute between them, nor had the deceased ever made any complaint to him or to any other family member in this regard. It is further submitted that the prime eyewitnesses turned hostile, and despite the same, the learned Trial Court proceeded to pass the impugned judgment and sentence solely on the basis of hearsay evidence and interested witnesses.

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It is further submitted that the learned trial court, without assigning any substantial or cogent reasons, observed in the impugned judgment dated 15.07.2016 that the deceased was pregnant at the time of the alleged offence. The said observation has been made without due appreciation of the medical evidence on record; as per the medical report, post-mortem report, and the Forensic Science Laboratory (FSL) report, the deceased was not found to be pregnant, and none of the doctors examined as witnesses before the learned Trial Court have deposed to the effect that the deceased was pregnant. On the contrary, the concerned doctor has specifically stated that a sample for determination of pregnancy was taken and sent to the FSL, however, the report in that regard was not available. Further, PW12 stated that during the examination, the uterus, ovaries and fallopian tubes of the deceased were found to be normal, and albeit blood and tissue samples from the uterus were collected

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and sent to the FSL for pathological examination, the report indicates that no recent intercourse was found. It is submitted that the observation regarding pregnancy has been recorded solely on the basis of the bed-ticket of the hospital, wherein the urine pregnancy test was shown to be positive. However, the same, by itself, cannot be treated as a conclusive or definitive determination of pregnancy, particularly in the absence of corroborative medical or forensic evidence.

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It is lastly submitted that under the settled principles of criminal jurisprudence, the essential element for the commission of any offence is the mens rea of the accused, followed by the actus reus committed in furtherance thereof. However, in the present case, neither of these foundational requirements has been established. There is no evidence to prove existence of any mens rea on the part of the appellant in relation to the alleged offence, nor is there any actus reus attributable to him. It is submitted that there is not even an iota of evidence on record to demonstrate that the appellant had the requisite intention or committed any overt act so as to constitute the offences of murder or rape of the deceased. On the contrary, even as per the defence evidence, it stands proved that the deceased committed suicide, allegedly due to torture and pressure exerted upon her by her family members, particularly when she was disturbed after returning from her village, as her family was not supportive of the close acquaintance between the appellant and the deceased.

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Per contra, learned Public Prosecutor assisted by learned counsel for the complainant vehemently opposing the prayer made

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and supporting the findings recorded by the learned Trial Court in the impugned judgment dated 15.07.2016, submitted that the submissions advanced on behalf of the appellant regarding the alleged absence of mens rea and actus reus are misconceived, legally untenable, and contrary to the evidence on record. It is submitted that the defence has attempted to apply the principles of criminal jurisprudence in abstraction, while conveniently ignoring the cumulative effect of the circumstantial and medical evidence duly proved during trial. In the present case, the manner in which the incident occurred, the circumstances immediately preceding and succeeding the occurrence, and the conduct of the appellant collectively establish the requisite elements for the commission of the offences alleged. The contention that there is no actus reus attributable to the appellant is equally untenable. The prosecution case does not rest on conjectures but on evidence duly appreciated by the learned Trial Court, which found that the role of the appellant in the occurrence stood established. The learned trial court has rightly drawn permissible inferences from the material available on record, stating that at the time of offence the deceased was pregnant, and as she did not choose to abort the child, the appellant set her on fire. Nonetheless, the appellant and the deceased had certain quarrel due to phone calls of other females that were received by the appellant. It is, therefore, prayed that the present appeal be dismissed.

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Having heard the rival submissions made by the learned counsel, upon a careful consideration of the entire material available on record, this Court finds that the prosecution case

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suffers from serious and material infirmities, entitling the appellant to the benefit of doubt. At the outset, it is significant to note that no dying declaration of the deceased was recorded at any stage nor she was in mental and medical condition to tender the same. In cases resting on circumstantial evidence, the absence of a dying declaration assumes importance, particularly when the prosecution version is otherwise not supported by reliable ocular or medical evidence. Further, it is noted that the FIR was not lodged immediately after the incident, as the incidence as per the statement of the brother of the deceased took place on 27/28.01.2013, and admittedly, the FIR came to be registered after the demise of the victim, and not soon after the occurrence. The prosecution has failed to offer a satisfactory explanation for such delay, thereby casting a serious doubt on the spontaneity and credibility of the prosecution story. The Hon’ble Supreme Court in the ratio encapsulated in Thulia Kali v. State of Tamil Nadu: (1972) 3 SCC 393 , has held that unexplained delay in lodging the FIR is a circumstance which puts the Court on guard against embellishment and false implication.

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It is also evident from the record that the father and brother of the deceased already knew that the appellant and the deceased have been residing together in a rental room in Jaipur; and that the prime eyewitnesses i.e. Moti Lal Sharma (PW-4), Smt. Kamla Devi (PW-5), Satish Sharma (PW-6) and Smt. Ratan (PW-7), who were the members living in the house, wherein the deceased and the appellant also resided have turned hostile and have not supported the prosecution case. In the absence of corroborative

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evidence, conviction cannot be sustained merely on conjectures. The Apex Court in Kali Ram v. State of Himachal Pradesh: (1973) 2 SCC 808, reiterated that if two views are possible, the one favourable to the accused must be adopted, however, in the matter at hand, it appears that the learned Trial Court has erred in appreciation of evidences.

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Upon scanning, the record reveals that the family of the deceased was unhappy with the relationship between the appellant and the deceased, which provides a relevant background and lends credence to the defence version, and this aspect has not been adequately appreciated by the learned Trial Court. Another important circumstance noted is that the appellant himself took the deceased to the hospital and, in the process of rendering medical aid/ prevention from fire, sustained burn injuries on his hands, which stands corroborated by medical evidence and also the arrest memo, as he was under treatment at the SMS Hospital, Jaipur. Such conduct is inconsistent with the behaviour of a person having the intention to commit murder.

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The Hon’ble Supreme Court has, in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra: (1984) 4 Supreme Court Cases 116 , held as under:-

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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:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

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In view of the aforementioned, and as it is well settled that in cases based on circumstantial evidence, the chain of circumstances must be complete and must point only towards the guilt of the accused; considering the absence of a dying declaration, delayed FIR, hostile eyewitnesses, lack of medical and

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FSL support qua pregnancy and sexual assault, strained family circumstances, and the conduct and injuries of the appellant, this Court is of the view that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt.

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Accordingly, the appeal deserves to be allowed. The impugned judgment of conviction and sentence dated 15.07.2016 is hereby set aside, and the appellant is acquitted of all charges framed against him. He shall be released forthwith, if not required to be detained in any other case.

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13. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Ashok Kumar son of Shri Moolchand Balai is directed to furnish a 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 that event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly.

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(SAMEER JAIN),J

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(MAHENDAR KUMAR GOYAL),J

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CHANDAN /53

Ashok Kumar v. State of Rajasthan through Pp

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Ashok Kumar v. State of Rajasthan through Pp

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