Himachal Pradesh High Court
Reserved On: 16.12.2024 vs Tej Ram on 26 December, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:15874
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 679 of 2024
Reserved on: 16.12.2024
Date of Decision: 26.12.2024
State of H.P. …Appellant.
Versus
Tej Ram ...Respondent.
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant/State : Mr. Ramakant Sharma, Additional
Advocate General.
For the Respondent : Mr. Ram Murti Bisht, Advocate, Legal
Aid Counsel.
Rakesh Kainthla, Judge
The State has preferred the present appeal against the
judgment dated 13.10.2023 passed by learned Special Judge-II,
Mandi, District Mandi, Camp at Karsog vide which the respondent
(accused before learned Trial Court) was acquitted of the
commission of offences punishable under Section 302 of Indian
Penal Code (in short ‘IPC‘) and Section 3(2) (v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in
short ‘SC&ST’ Act). (Parties shall hereinafter be referred to in the same
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
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manner as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan against the accused before
the learned Trial Court for the commission of offences punishable
under Section 302 of IPC and Section 3(2)(v) of the SC&ST Act. It
was asserted that Bimla Devi (deceased) was residing with her son
Jagdish at Village Sanoti. Her husband had died 12-13 years before
the date of the incident. The informant Rajinder Kumar (PW1) and
his brother Jagdish had gone to Kotkhai. Bimla Devi was alone in
her house. Rajinder Kumar (PW1) came to know on 22.06.2020 at
about 3:15 PM that Bimla Devi had fallen into the bushes. He asked
his grandmother, Ram Pyari, to visit Sanoti. He and Jagdish also
went to the Karsog. He found in Karsog hospital that Bimla Devi
had died on the date of the incident. The informant subsequently
found that accused Tej Ram was moving around the house of Bimla
Devi in the daytime in a state of intoxication. The accused used to
visit the informant’s house in a state of intoxication. He also used
to pick up the quarrel in intoxication with everybody. He had earlier
stabbed a person during the scuffle. The informant suspected that
the accused had stabbed Bimla Devi. The informant made a
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complaint (Ext.PW1/A) to the police, and the police registered an
FIR (Ext.PW14/A). Inspector Ranjan Sharma (PW15) conducted the
investigation. He visited the spot and took the photographs
(Ext.PW12/A1 to Ext.PW12/A20). He prepared the site plan
(Ext.PW15/A). He picked up the blood lying on the spot, blood-
stained pine leaves, and stained soil, and seized them vide memo
(Ext.PW15/B). These were put in parcels, which were sealed with
four impressions of seal KSG A. The sample seal (Ext.PW15/C) was
taken on a separate piece of cloth. The team of RFSL was informed
through e-mail, and the dead body was sent to CHC, Karsog. A team
of RFSL reached the spot on 23.06.2020. Stubs of bidi, blood lying
on the spot, blood lying on the right side of the road leading from
Karsog to Sanoti and blood at a distance of 240 cm and 160 cm were
picked up. These were put in five cloth parcels, and each parcel was
sealed with four impressions of seal KSG B. The sample seal
(Ext.PW6/A) was taken on a separate piece of cloth, and the seal
was handed over to Constable Vikas Sharma (PW6) after the use.
The parcels were seized vide memo (Ext.PW6/B). Inspector Ranjan
Sharma (PW15) filed an application (Ext.PW15/E) for the
postmortem examination of the deceased. He also filled the form
(Ext.PW15/D). The dead body was referred to IGMC, Shimla, for the
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postmortem examination. Dr Abhishek Sharma (PW18) and Dr.
Neha conducted the postmortem examination of Bimla Devi on
23.06.2020. They found multiple injuries on the dead body, and
according to their provisional opinion, the cause of death was
irreversible hemorrhagic shock secondary to penetrating stab
wounds to the chest. They preserved the viscera, clothes and
ornaments of the deceased and handed them over to the police
official accompanying the dead body. They issued the postmortem
report (Ext.PW18/A). Inspector Ranjan Sharma (PW15) prepared the
site plan (Ext.PW15/F) at the instance of Man Dass (PW2) on
27.06.2020. He arrested the accused on 28.06.2020 and sent him to
CHC, Karsog, for the medical examination. Dr. Abroo Gupta (PW23)
conducted the medical examination of the accused. He found that
the accused had not suffered any recent injury. He obtained the
saliva, blood and clothes (shirt and lower) of the deceased, and
handed them over to the police official accompanying the accused.
He issued the MLC (Ext.PW23/B). The accused produced shoes worn
by him on the date of the incident. Inspector Ranjan Sharma (PW15)
seized the articles vide memo (Ext.PW7/A). These were put in a
cloth parcel, which was sealed with seven impressions of seal KSG
D. The sample seal was taken on a separate piece of cloth. The
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2024:HHC:15874
accused stated (Ext.PW7/B) that he could show the place where he
had concealed the knife. He led the police to the spot and showed
the place where he had stabbed Bimla Devi and threw her into the
bushes. Memo (Ext.PW7/C) was prepared. The accused pointed out
the place where he had concealed the knife between the mattresses
on the trunk of his room. A sketch of the knife (Ext.PW3/C) was
prepared. Its handle was found to be 4 inches in length, and its total
length was found to be 5½ inches. The knife was put in a cloth
parcel, and the parcel was sealed with seven impressions of seal
‘KSG O’. The sample seal (Ex.PW3/E) was taken on a separate piece
of cloth. The parcel was seized vide memo (Ex.PW3/A). The site plan
of the place of the knife’s recovery (Ex.PW15/G) was prepared. The
mattress was put in a cloth parcel, and the parcel was sealed with
seven impressions of seal ‘KSG C’. The sample seal (Ex.PW3/D) was
taken on a separate piece of cloth. The cloth parcel was seized vide
seizure memo (Ex.PW3/B), and the seal was handed over to Lalit
Kumar after the use. Inspector Ranjan Sharma (PW15) filed an
application (Ex.PW15/H) for recording the statement of Biri Singh
(PW5). The Court recorded his statement (Ex.PW5/A) on 30.6.2020.
Inspector Ranjan Sharma (PW15) found during the investigation
that deceased Bimla Devi belonged to the Scheduled Caste, whereas
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the accused did not belong to the Scheduled Caste. He filed an
application (Ex.PW15/I) for obtaining the caste certificate of the
accused and the deceased. He handed over the case file to SDPO
Arun Modi as per the orders of Superintendent of Police Mandi.
Arun Modi (PW17) conducted further investigation. He visited the
spot on 02.7.2020 and prepared the spot map (Ex.PW17/B) at the
instance of the informant. He took the photograph (Ex.PW12/A11)
and issued a certificate (Ex.PW17/D). He recorded the statements of
witnesses as per their version. He wrote a letter (Ex.PW17/C) to the
Tehsildar, Karsog, to prepare the Tatima of the place where the
dead body was found. Charan Singh (PW24) issued the pedigree
table of the victim (Ex.PW24/A) and the caste certificate
(Ex.PW24/B). He supplied the list of Scheduled Caste and Scheduled
Tribes (Ex.PW24/C), which showed that the victim belonged to
Scheduled Caste. Rajesh (PW25) issued the report (Ex.PW25/A)
regarding the scene of the crime. The case property was deposited
with HC Dina Nath (PW14), who deposited them in Malkhana and
sent them for analysis to RFSL, Mandi and SFSL, Junga. The result
of analysis (Ex.PW18/B) was issued by RFSL, Mandi, showing that
human blood of Group-B was detected on the blood-stained soil,
chappal of deceased, vegetation material, blood lifted from the
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spot, blood lifted from the main spot on right side of the road, shirt
of deceased, blood sample of accused and blood sample of deceased,
vest, slacks, bra of the deceased and mattress. Human blood was
detected in the blood of the pool trail 160 cm. from the main pool of
blood, and blood lifted at about 240 cm. away from the main pool of
blood and slacks of the deceased, which was insufficient for blood
grouping. Blood was indicated in the rubber band of the deceased
and the dagger, but it was insufficient for serological examination.
The report (Ex.PW18/C) showed that no poison/alcohol was
detected in the viscera of the deceased. The report of SFSL (Ex.PA)
showed that the DNA profile obtained from the dagger matched the
DNA profile obtained from the blood sample of the deceased. One
DNA profile obtained from the bidi matched with the blood sample
of the deceased. Two other DNA profiles were found on the bidi, but
they did not match the blood sample of the deceased or the blood
sample of the accused. Statements of the remaining witnesses were
recorded as per their version, and after the completion of the
investigation, the challan was prepared and presented before the
learned Trial Court.
3. The learned Trial Court charged the accused with the
commission of offences punishable under Section 302 of IPC and
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Section 3(2)(v) of the SC&ST Act, to which the accused pleaded not
guilty and claimed to be tried.
4. The prosecution examined 27 witnesses to prove its
case. Rajinder Kumar (PW1) is the informant. Man Dass (PW2),
Pradhan Gram Panchayat, was told about the fall of Bimla Devi.
Lalit Kumar (PW3) is the witness to the recovery of the knife at the
instance of the accused. Hira Singh (PW4) is the witness to the
disclosure statement and the consequent recovery. Biri Singh
(PW5) found the accused in a state of intoxication on 22.6.2020 at
2.30 PM going towards Churag. Constable Vikas Sharma (PW6) is
the witness to the recovery. Constable Anil Kumar (PW7) is the
witness to the recovery of the shoe, the disclosure statement made
by the accused, and the consequent recovery based on the
disclosure statement. Satya Devi (PW8) saw the dead body first.
Kalpana (PW9) issued the Shajra Nasab (pedigree table) of the
accused and the deceased. She also prepared the spot map. Rajender
(PW10) countersigned the caste certificate and Shajra Nasab.
Nirmala (PW11) was told about the discovery of the dead body of the
deceased. Nikka Ram (PW12) took the photographs. LC
Bhuvneshwari (PW13) proved the entry in the daily diary. HC Dina
Nath (PW14) was working as MHC, with whom the case property
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2024:HHC:15874
was deposited. Inspector Ranjan Sharma (PW15) conducted the
investigation. Kaula Ram (PW16) is a witness to various recoveries.
Arun Modi (PW17) and Geetanjli (PW26) conducted the
investigation. Dr. Abhishek Sharma (PW18) conducted the
postmortem examination of the deceased. HASI OM Parkash
(PW19) carried the case property to RFSL Mandi. Constable Praveen
(PW20) brought the result and the parcels from RFSL, Mandi.
Constable Desh Raj (PW21) carried the case property to SFSL Junga.
HHC Krishan Chand (PW22) carried the parcels from RFSL Mandi to
Police Station Karsog with the result of RFSL Mandi. Dr. Abroo
Gupta (PW23) conducted the medical examination of the accused.
Charan Singh (PW24) issued the pedigree table and caste certificate
of the victim. Rajesh (PW25) was posted as Assistant Director, who
had visited the spot and issued the report. HC Pawan Kumar (PW27)
was discharging the duties of MHC with whom the case property
was deposited after it was brought from RFSL, Mandi and SFSL,
Junga.
5. The accused, in his statement recorded under Section
313 Cr.P.C., denied the prosecution case in its entirety, except that
he was arrested and medically examined. He stated that a false case
was made against him. One lady had died in village Kradal, an
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2024:HHC:15874
adjoining village. He had gone to the village Kradal at 4 AM and
remained there till 5-6 PM. He initially stated that he wanted to
lead evidence, but subsequently, no evidence was led by him.
6. The learned Trial Court held that the prosecution case
was based upon circumstantial evidence. The prosecution was
required to prove the chain of circumstances establishing the guilt
of the accused beyond reasonable doubt. The prosecution relied
upon the recovery of the knife pursuant to the disclosure statement
made by the accused. The recovery was not supported by Lalit
Kumar (PW3). Hira Singh (PW4) stated in his cross-examination
that the accused was residing with his two unmarried sons; hence
the exclusive possession of the accused was not proved. Inspector
Ranjan Sharma (PW15) had not proved the contents of the
disclosure statement. Therefore, the disclosure statement and the
consequent recovery were not established. The fingerprints of the
accused were not taken to match them with the fingerprints on the
knife; therefore, the knife is not connected to the accused. The
informant had filed the complaint based on suspicion. It was an
admitted case that the deceased used to take liquor, and complaints
were made against her by the Gram Panchayat. The possibility of a
fall could not be ruled out. No witness stated that the accused had
11
2024:HHC:15874
murdered the deceased because she belonged to the Scheduled
Caste; hence, the accused was acquitted of the charged offences.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present appeal asserting
that the learned Trial Court failed to properly appreciate the
evidence on record. Learned Trial Court had set unrealistic
standards to evaluate the direct and cogent prosecution case. The
reasoning of the learned Trial Court was manifestly unreasonable
and unsustainable. The testimonies of prosecution witnesses were
discarded for untenable reasons. There was no evidence to show
that the witnesses had any enmity with the accused. The recovery
of the knife at the instance of the accused was duly proved, and the
Trial Court erred in discarding the same. The accused had
quarrelled with the deceased on the previous occasions. He was last
seen with the deceased near the spot at about 2:30 PM, and
immediately thereafter, the dead body was discovered. These
circumstances were sufficient to prove the guilt of the accused.
Hence, it was prayed that the present appeal be allowed and the
judgment passed by the learned Trial Court be set aside.
8. We have heard Mr. Ramakant Sharma, learned
Additional Advocate General for the appellant/State and Mr. Ram
12
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Murti Bisht, Advocate, learned Legal Aid Counsel for the
respondent.
9. Mr. Ramakant Sharma, learned Additional Advocate
General for the appellant/State, submitted that the learned Trial
Court erred in acquitting the accused. The accused was last seen
with the deceased, and a knife was recovered at his instance. The
DNA report proved that the DNA on the knife matched the DNA of
the deceased, which clearly shows that the knife was used as a
weapon of offence. The postmortem report also establishes the fact
that the cause of death was a stab wound. The accused did not
provide any explanation. He stated that he was not present in the
village on the date of the incident, which is falsified by the
statements of prosecution witnesses who had seen the deceased on
the date of the incident in a state of intoxication. Learned Trial
Court erred in acquitting the accused. Therefore, he prayed that the
present appeal be allowed and the judgment passed by the learned
Trial Court be set aside.
10. Mr Ram Murti Bisht, learned Legal Aid Counsel for the
respondent/accused, supported the judgment passed by the learned
Trial Court. He submitted that the learned Trial Court had taken a
reasonable view based on the evidence led before it, and this Court
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should not interfere with the same while deciding an appeal against
the acquittal. The evidence in support of the disclosure statement
and the consequent recovery is not satisfactory. It is inherently
improbable that the accused would conceal the weapon of offence
in his house to be discovered 6 days after the incident. There is no
evidence that the accused and deceased were last seen, and the
prosecution witnesses had only seen the accused going towards
Churag on a public path. Therefore, not much can be made out of
this evidence. Learned Trial Court had rightly acquitted the accused.
He prayed that the appeal be dismissed.
11. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment of
acquittal. It was laid down by the Hon’ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC
130 that while deciding an appeal against acquittal, the High Court
should see whether the evidence was properly appreciated on
record or not; second whether the finding of the Court is illegal or
affected by the error of law or fact and thirdly; whether the view
taken by the Trial Court was a possible view, which could have been
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taken based on the material on record. The Court will not lightly
interfere with the judgment of acquittal. It was observed:
“25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty. The
presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretised when the case
ends in acquittal. It is so because once the trial court, on
appreciation of the evidence on record, finds that the accused
was not guilty, the presumption gets strengthened, and a
higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal, and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on the
High Court to reappreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order
under challenge is of acquittal. The first and foremost
question to be asked is whether the trial court thoroughly
appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the trial
court is illegal or affected by an error of law or fact. If not, the
third consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What is
required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts, and it comes into play when the appreciation of
evidence results in two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For, the
very existence of an equally plausible view in favour of the
15
2024:HHC:15874innocence of the accused is in itself a reasonable doubt in the
case of the prosecution. Moreover, it reinforces the
presumption of innocence. Therefore, when two views are
possible, following the one in favour of the innocence of the
accused is the safest course of action. Furthermore, it is also
settled that if the view of the trial court, in a case of acquittal,
is a plausible view, it is not open for the High Court to convict
the accused by reappreciating the evidence. If such a course is
permissible, it would make it practically impossible to settle
the rights and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp.
236-37, para 13)
“13. Considering the reasons given by the trial court and on
an appraisal of the evidence, in our considered view, the
view taken by the trial court was a possible one. Thus, the
High Court should not have interfered with the judgment
of acquittal. This Court in Jagan M. Seshadri v. State of
T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639:
2003 SCC (L&S) 1494] has laid down that as the
appreciation of evidence made by the trial court while
recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
Court while reversing the acquittal has been dealt with by
this Court, thus: (SCC p. 643, para 9)
‘9. … We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was
required to deal with various grounds on which
acquittal had been based and to dispel those grounds. It
has not done so. Salutary principles while dealing with
appeals against acquittal have been overlooked by the
High Court. If the appreciation of evidence by the trial
court did not suffer from any flaw, as indeed none has
been pointed out in the impugned judgment, the order
of acquittal could not have been set aside. The view
taken by the learned trial court was a reasonable view,
and even if by any stretch of the imagination, it could
be said that another view was possible, that was not a
16
2024:HHC:15874ground sound enough to set aside an order of
acquittal.'”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6
SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble Supreme Court
analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
from the order of acquittal. It observed thus: (SCC p. 297,
para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021)
1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter
gets reinforced (see Atley v. State of U.P. [Atley v. State of
U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala [Sambasivan v. State of
Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”
13. This position was reiterated in Ramesh v. State of
Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it
was observed at page 175:
“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa v. State of
Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415
: (2007) 2 SCC (Cri) 325], regarding the power of the appellate
17
2024:HHC:15874court while dealing with an appeal against a judgment of
acquittal. The principles read thus: (SCC p. 432, para 42)
“42. … (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 the exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and 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 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 a 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.”
21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v.
State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-
judge Bench of this Court pointed out that it would be
essential for the High Court, in an appeal against acquittal, to
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clearly indicate firm and weighty grounds from the record
for discarding the reasons of the trial court in order to be able
to reach a contrary conclusion of guilt of the accused. It was
further observed that, in an appeal against acquittal, it would
not be legally sufficient for the High Court to take a contrary
view about the credibility of witnesses, and it is absolutely
imperative that the High Court convincingly finds it well-
nigh impossible for the trial court to reject their testimony.
This was identified as the quintessence of the jurisprudential
aspect of criminal justice.”
14. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
15. The prosecution has relied upon the circumstantial
evidence the principles of appreciation of circumstantial evidence
were explained by the Hon’ble Supreme Court in Ramanand v. State
of U.P., 2022 SCC OnLine SC 1396 as under:
“PRINCIPLES OF LAW RELATING TO APPRECIATION OF
CIRCUMSTANTIAL EVIDENCE
45. In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an
English Philosopher, included a whole chapter on what lies
next when the direct evidence does not lead to any special in-
ference. It is called Circumstantial Evidence. According to
him, in every case of circumstantial evidence, there are al-
ways at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the
fact the existence of which is supposed or proposed to be
proved; &
b) The Factum probans or the evidentiary fact (the fact
from the existence of which that of the factum probandu-
mis inferred).
46. Although there can be no straight jacket formula for
appreciation of circumstantial evidence, yet to convict an ac-
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cused on the basis of circumstantial evidence, the Court must
follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly estab-
lished;
2. Those circumstances must be of a definite tendency un-
erringly pointing towards guilt of the accused and
must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability, the
crime was committed by the accused and none else,
and
4. The circumstantial evidence in order to sustain convic-
tion must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the ac-
cused but should be inconsistent with his innocence. In
other words, the circumstances should exclude every
possible hypothesis except the one to be proved.
47. There cannot be any dispute over the fact that the case
on hand is one of the circumstantial evidence as there was no
eye witness of the occurrence. It is a settled principle of law
that an accused can be punished if he is found guilty, even in
cases of circumstantial evidence provided, the prosecution is
able to prove beyond reasonable doubt the complete chain of
events and circumstances, which definitely points towards
the involvement and guilty of the suspect or accused, as the
case may be. The accused will not be entitled to acquittal
merely because there is no eye witness in the case. It is also
equally true that an accused can be convicted on the basis of
circumstantial evidence subject to satisfaction of the ex-
pected principles in that regard.
48. A three-judge Bench of this Court in Sharad Birdhic-
hand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as
under:
“152. Before discussing the cases relied upon by the High
Court, we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
20
2024:HHC:15874which rests on circumstantial evidence alone. The most fun-
damental decision of this Court is Hanumant v. State of Mad-
hya 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 cases 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 es-
tablished 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 evi-
dence 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.
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 cir-
cumstances concerned ‘must or should’ and not ‘may be’ es-
tablished. There is not only a grammatical but a legal distinc-
tion 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 [(1973) 2 SCC 793: 1973 SCC
(Cri) 1033: 1973 Cri LJ 1783] where the following observations
were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
21
2024:HHC:15874
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,
(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 consis-
tent 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, consti-
tute the panchsheel of the proof of a case based on circum-
stantial evidence.”
49. In an Essay on the Principles of Circumstantial Evi-
dence by William Wills by T. and J.W. Johnson and Co. 1872, it
has been explained as under:
“In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though really
not so, seem to be contemporaneous. But the case is very dif-
ferent when we have to determine upon circumstantial evi-
dence, the judgment in respect of which is essentially inferen-
tial. There is no apparent necessary connection between the
facts and the inference; the facts may be true and the infer-
ence erroneous, and it is only by comparison with the results
of observation in similar or analogous circumstances that we
acquire confidence in the accuracy of our conclusions.?
The term PRESUMPTIVE is frequently used as synonymous
with CIRCUMSTANTIAL EVIDENCE, but it is not so used with
strict accuracy, The word” presumption,” ex vi termini, im-
ports an inference from facts, and the adjunct “presumptive,”
22
2024:HHC:15874
as applied to evidentiary facts, implies the certainty of some
relation between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular inferences,
for the facts may be indisputable, and yet their relation to the
principal fact may be only apparent and not real; and even
when the connection is real, the deduction may be erroneous.
Circumstantial and presumptive evidence differ, therefore, as
genus and species.
The force and effect of circumstantial evidence depend
upon its incompatibility with, and incapability of, explanation
or solution upon any other supposition than that of the truth
of the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum.”
50. Thus, in view of the above, the Court must consider a
case of circumstantial evidence in light of the aforesaid set-
tled legal propositions. In a case of circumstantial evidence,
the judgment remains essentially inferential. The inference
is drawn from the established facts as the circumstances lead
to particular inferences. The Court has to draw an inference
with respect to whether the chain of circumstances is com-
plete, and when the circumstances therein are collectively
considered, the same must lead only to the irresistible con-
clusion that the accused alone is the perpetrator of the crime
in question. All the circumstances so established must be of a
conclusive nature and consistent only with the hypothesis of
the guilt of the accused.”
16. This position was reiterated in Karakkattu Muhammed
Basheer v. State of Kerala, 2024 SCC OnLine SC 3124 wherein it was
observed:
“10. Before proceeding further, it would be appropriate to
mention the principles as have been enunciated and settled
by this Court, which would determine the parameters within
which the case of the prosecution, if based on circumstantial
evidence, is to be tested with regard to the establishment of
the offence stated to be committed by the Appellant.
23
2024:HHC:15874
This Court in the case of Ramreddy Rajesh Khanna
Reddy v. State of A.P. (2006) 10 SCC 172 while referring to the
various earlier judgments which have been passed by this
Court from time to time, summarized key principles which
act as a guide for the courts to come to a conclusion with
regard to the guilt of an accused in cases which are solely
dependent on the circumstantial evidence. The same have
been referred to as the “panchsheel principles” and are
discussed in paragraphs 26 to 28 of the said judgment, which
read as follows:
26. It is now well settled that with a view to base a
conviction on circumstantial evidence, the prosecution
must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and the
circumstances so proved must form such a chain of events
as would permit no conclusion other than one of guilt of
the accused. The circumstances cannot be on any other
hypothesis. It is also well settled that suspicion, however
grave it may be, cannot be a substitute for proof and the
courts shall take utmost precaution in finding an accused
guilty only on the basis of the circumstantial evidence.
(See Anil Kumar Singh v. State of Bihar [(2003) 9 SCC
67: 2004 SCC (Cri) 1167] and Reddy Sampath Kumar v. State
of A.P. [(2005) 7 SCC 603: 2005 SCC (Cri) 1710])
27. The last-seen theory, furthermore, comes into play
where the time gap between the point of time when the
accused and the deceased were last seen alive and the
deceased is found dead is so small that the possibility of
any person other than the accused being the author of the
crime becomes impossible. Even in such a case, the courts
should look for some corroboration.
28. In State of U.P. v. Satish [(2005) 3 SCC 114: 2005 SCC (Cri)
642] this Court observed: (SCC p. 123, para 22)
“22. 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 the possibility
of any person other than the accused being the author
of the crime becomes impossible. It would be difficult
24
2024:HHC:15874
in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap
and the possibility of other persons coming in between
exists. In the absence of any other positive evidence to
conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case, there is
positive evidence that the deceased and the accused
were seen together by witnesses PWs 3 and 5, in
addition to the evidence of PW 2.”
(See also Bodhraj v. State of J&K [(2002) 8 SCC 45: 2003
SCC (Cri) 201].)
11. Thereafter, the above principles have been reiterated in
the subsequent judgments of this Court and hold the field till
date.
Thus, these basic established principles can be summarized
in the following terms that the chain of events needs to be so
established that the court has no option but to come to one
and only one conclusion i.e. the guilt of the accused person. If
an iota of doubt creeps in at any stage in the sequence of
events, the benefit thereof should flow to the accused. Mere
suspicion alone, irrespective of the fact that it is very strong,
cannot be a substitute for proof. The chain of circumstances
must be so complete that they lead to only one conclusion
that is the guilt of the accused. Even in the case of a
conviction where in an appeal the chain of evidence is found
to be not complete or the courts could reach to any another
hypothesis other than the guilt of the accused, the accused
person must be given the benefit of the doubt which
obviously would lead to his acquittal. Meaning thereby, when
there is a missing link, a finding of guilt cannot be recorded.
In other words, the onus on the prosecution is to produce
such evidence which conclusively establishes the truth and
the only truth with regard to the guilt of an accused for the
charges framed against him or her, and such evidence should
establish a chain of events so complete as to not leave any
reasonable ground for the conclusion consistent with the
innocence of accused.”
25
2024:HHC:15874
17. It was stated in the memorandum of appeal that the
accused was last seen with the deceased. This is incorrect. Biri
Singh (PW5) stated that on 22.06.2020 at 2:30 PM, he was in his
bakery shop, and he saw Tej Ram going towards Churag in a state of
intoxication. Therefore, it is apparent that the witness has nowhere
stated that he had seen the accused with the deceased on
22.06.2020 at 2:30 PM. He had only seen the accused going towards
Churag in a state of intoxication. Hence, his testimony does not
prove that the accused was last seen with the deceased.
18. Satya Devi (PW8) saw the dead body first. She stated
that she was running a bakery at Sanoti. She was at her home on
22.06.2020 at 3 PM. She saw some clothes beneath the road and
sent one Altab to verify. He went to the spot and shouted from the
spot that one woman was lying. She went to the spot and saw the
dead body of the woman lying face down. The blood was found near
the dead body. She identified the woman as Bimla Devi. Altab called
Rajinder, son of Bimla Devi and told him about his mother. She also
called Nirmala Devi, who informed Pradhan of Gram Panchayat
who told the police. She stated in her cross-examination that there
is a cliff near the house of the Bimla Devi, and a person could fall if
26
2024:HHC:15874
he was not careful. She admitted that Bimla Devi used to consume
liquor.
19. Her testimony shows that she had seen Bimla Devi at
3.00 PM, about 30 minutes after the accused was seen going
towards Churag by Biri Singh (PW5). Therefore, it cannot be said
that the dead body was discovered immediately after the accused
was seen going towards Churag.
20. Nirmala (PW11) stated that she and her husband, Karam
Singh, were sleeping after lunch. Satya Devi called her
telephonically and told her that Bimla Devi had fallen down the
road. She came out of the house and found Satya Devi standing on
the road. She and her husband went to the road and saw that Bimla
Devi had fallen down the road with her face down. She called Man
Dass (PW2) Pradhan and informed him about the fact. She stated in
her cross-examination that she did not know the reason for the fall
of Bimla Devi.
21. Man Dass (PW2) stated that he received a call from
Nirmala Devi, who informed him that Bimla Devi had fallen and
had sustained injuries. He and Up Pradhan Lalit Kumar (PW3) went
to village Sanoti and saw the Bimla Devi dead.
27
2024:HHC:15874
22. He stated in his cross-examination that the deceased
was found near the road, which is used by the students, people and
the vehicle. He admitted that Bimla Devi used to consume liquor,
and many complaints were received in the Panchayat about the
people creating a ruckus in the house of Bimla Devi in a state of
intoxication. He admitted that there is a cliff near the road, and a
person can fall.
23. The statements of these witnesses show that the initial
impression gathered by the people was that the deceased (Bimla
Devi) had fallen down the road from the cliff, and no person had
suspected anything. This is also apparent from the report
(Ext.PW13/A), in which it was mentioned that Bimla Devi was found
lying on the spot, and action should be taken in the matter. No
suspicion was raised that Bimla Devi was murdered.
24. The informant filed the application (Ext.PW1/A) on
26.06.2020 after the receipt of the postmortem examination in
which the cause of death was stated to be the penetrating stab
wound. He stated that he had reached Karsog on the night of
22.06.2020 and subsequently came to know from the postmortem
report that his mother was murdered with a sharp-edged weapon.
Thereafter, he filed a complaint to the police. He admitted that he
28
2024:HHC:15874
had reached Karsog on the night of 22.06.2020, the date when the
dead body was discovered. The fact that he had not done anything
from 22.06.2020 till 26.06.2020 also shows that he never suspected
any foul play in the death of his mother.
25. The prosecution has relied upon the disclosure
statement made by the accused and the consequent recovery of the
knife to connect the accused with the commission of a crime. It was
laid down by the Hon’ble Supreme Court in Manoj Kumar Soni v.
State of M.P., 2023 SCC OnLine SC 984 that the conviction cannot be
based on the disclosure statement alone. It was observed:
“22. A doubt looms: can disclosure statements per se,
unaccompanied by any supporting evidence, be deemed
adequate to secure a conviction? We find it implausible.
Although disclosure statements hold significance as a
contributing factor in unriddling a case, in our opinion, they
are not so strong a piece of evidence sufficient on their own and
without anything more to bring home the charges beyond a
reasonable doubt.” (Emphasis supplied)
26. Inspector Ranjan Sharma (PW15) stated that a statement
under Section 27 of the Indian Evidence Act (Ext.PW7/B) was
recorded in the presence of Constable Anil Kumar (PW7) and
Kuldeep. The accused led the police towards the spot. He identified
the spot. The police party and the witnesses went to the house of
the accused, where the accused produced a knife kept between the
29
2024:HHC:15874
mattress on the trunk of his room. The photographs of the spot
were taken, and a video recording was made.
27. It was laid down by the Hon’ble Supreme Court in
Hon’ble Supreme Court in Ramanand @ Nandlal Bharti versus State
of UP (2022) SCC online SC 1396 that the investigating officer has to
testify about the exact words used by the accused. It was observed:
“54. The reason why we are not ready or rather reluctant to
accept the evidence of discovery is that the investigating
officer, in his oral evidence, has not said about the exact
words uttered by the accused at the police station. The sec-
ond reason to discard the evidence of discovery is that the in-
vestigating officer has failed to prove the contents of the dis-
covery panchnama. The third reason to discard the evidence
is that even if the entire oral evidence of the investigating
officer is accepted as it is, what is lacking is the authorship of
concealment. The fourth reason to discard the evidence of
the discovery is that although one of the panch witnesses
PW-2, Chhatarpal Raidas, was examined by the prosecution
in the course of the trial, yet has not said a word that he had
also acted as a panch witness for the purpose of discovery of
the weapon of offence and the blood-stained clothes. The
second panch witness, namely Pratap, though available, was
not examined by the prosecution for some reason. Therefore,
we are now left with the evidence of the investigating officer
so far as the discovery of the weapon of offence and the
blood-stained clothes as one of the incriminating pieces of
circumstances is concerned. We are conscious of the position
of law that even if the independent witnesses to the discovery
panchnama are not examined or if no witness was present at
the time of discovery, or if no person had agreed to affix his
signature on the document, it is difficult to lay down, as a
proposition of law, that the document so prepared by the po-
lice officer must be treated as tainted and the discovery evi-
dence unreliable. In such circumstances, the Court has to
30
2024:HHC:15874consider the evidence of the investigating officer who de-
posed to the fact of discovery based on the statement elicited
from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evi-
dence of the investigating officer not only unreliable, but we
can go to the extent of saying that the same does not consti-
tute legal evidence.
56. The requirement of law that needs to be fulfilled before
accepting the evidence of discovery is that by proving the
contents of the panchnama. The investigating officer, in his
deposition, is obliged in law to prove the contents of the
panchnama, and it is only if the investigating officer has suc-
cessfully proved the contents of the discovery panchnama in
accordance with the law, then, in that case, the prosecution
may be justified in relying upon such evidence, and the trial
court may also accept the evidence. In the present case, what
we have noticed from the oral evidence of the investigating
officer, PW-7, Yogendra Singh, is that he has not proved the
contents of the discovery panchnama, and all that he has de-
posed is that as the accused expressed his willingness to
point out the weapon of offence the same was discovered un-
der a panchnama. We have minutely gone through this part
of the evidence of the investigating officer and are convinced
that by no stretch of the imagination it could be said that the
investigating officer has proved the contents of the discovery
panchnama (Exh.5). There is a reason why we are laying em-
phasis on proving the contents of the panchnama at the end
of the investigating officer, more particularly when the inde-
pendent panch witnesses though examined yet have not said
a word about such discovery or turned hostile and have not
supported the prosecution. In order to enable the Court to
safely rely upon the evidence of the investigating officer, it is
necessary that the exact words attributed to an accused, as a
statement made by him, be brought on record and, for this
purpose, the investigating officer is obliged to depose in his
evidence the exact statement and not by merely saying that a
discovery panchnama of a weapon of offence was drawn as
the accused was willing to take it out from a particular place.
31
2024:HHC:15874
28. This position was reiterated in Babu Sahebagouda
Rudragoudar v. State of Karnataka, (2024) 8 SCC 149: (2024) 3 SCC
(Cri) 535: 2024 SCC OnLine SC 561 wherein it was observed at page
168:
“61. The statement of an accused recorded by a police officer
under Section 27 of the Evidence Act is basically a memoran-
dum of confession of the accused recorded by the investigat-
ing officer during interrogation, which has been taken down
in writing. The confessional part of such statement is inad-
missible, and only the part which distinctly leads to discov-
ery of fact is admissible in evidence as laid down by this
Court in State of U.P. v. Deoman Upadhyaya [State of U.P. v. De-
oman Upadhyaya, 1960 SCC OnLine SC 8: AIR 1960 SC 1125].
62. Thus, when the investigating officer steps into the wit-
ness box for proving such a disclosure statement, he would
be required to narrate what the accused stated to him. The
investigating officer essentially testifies about the conversa-
tion held between himself and the accused, which has been
taken down into writing, leading to the discovery of incrimi-
nating fact(s).
63. As per Section 60 of the Evidence Act, oral evidence in all
cases must be direct. The section leaves no ambiguity and
mandates that no secondary/hearsay evidence can be given
in the case of oral evidence except for the circumstances
enumerated in the section. In the case of a person who as-
serts to have heard a fact, only his evidence must be given in
respect of the same.
64. The manner of proving the disclosure statement under
Section 27 of the Evidence Act has been the subject matter of
consideration by this Court in various judgments, some of
which are referred to below.
65. In Mohd. Abdul Hafeez v. State of A.P. [Mohd. Abdul
Hafeez v. State of A.P., (1983) 1 SCC 143: 1983 SCC (Cri) 139], it
was held by this Court as follows: (SCC p. 146, para 5)
32
2024:HHC:15874“5. … If evidence otherwise confessional in character is
admissible under Section 27 of the Evidence Act, it is
obligatory upon the investigating officer to state and
record who gave the information; when he is dealing with
more than one accused, what words were used by him so
that a recovery pursuant to the information received may
be connected to the person giving the information so as to
provide incriminating evidence against that person.”
67. A similar view was taken by this Court in Ra-
manand v. State of U.P. [Ramanand v. State of U.P., (2023) 16
SCC 510: 2022 SCC OnLine SC 1396], wherein this Court held
that mere exhibiting of a memorandum prepared by the in-
vestigating officer during an investigation cannot tanta-
mount to proof of its contents. While testifying on oath, the
investigating officer would be required to narrate the se-
quence of events which transpired, leading to the recording
of the disclosure statement.
68. If we peruse the extracted part of the evidence of the in-
vestigating officer (PW 27) (reproduced supra), in the back-
drop of the above exposition of law laid down by this Court,
the interrogation memos of the accused A-2 (Ext. P-15) and
A-1 (Ext. P-16), it is clear that the investigating officer (PW
27) gave no description at all of the conversation which had
transpired between himself and the accused which was
recorded in the disclosure statements. Thus, these disclosure
statements cannot be read in evidence and the recoveries
made in furtherance thereof are non est in the eye of the law.”
29. In the present case, the investigating officer did not
state that the accused had talked about the concealment of the
knife beneath the mattress on the trunk of his room. Therefore, the
statement of the investigating officer does not meet the
requirement laid down by the Hon’ble Supreme Court.
33
2024:HHC:15874
30. Lalit Kumar (PW3) Up Pradhan of Gram Panchayat
Churag stated that Tej Ram produced the knife from the kitchen in
his presence. The police asked him to point out the place from
where the knife was produced. The accused pointed out the place,
and police took the photographs, and nothing else happened in his
presence. He denied that he was asked to visit the road beneath the
house of Tej Ram by the police. He admitted that the accused and
the police were on the road. Tej Ram signalled towards his house.
Lalit Kumar (PW3) and the police went to the house of the Tej Ram.
Accused Tej Ram signalled towards the room near the kitchen
where the trunk was kept. He admitted that the mattress was kept
on the trunk. He denied that the knife was kept beneath the
mattress by Tej Ram. He volunteered to say that the knife was
brought from the kitchen and it was kept beneath the mattress. He
denied his previous statement recorded by the police.
31. It is apparent from his statement that he has not
supported the prosecution case that the knife was concealed
between the mattresses and the accused had got it recovered;
rather, he stated that the knife was brought from the kitchen and
kept between the mattresses and the accused was asked to point out
34
2024:HHC:15874
the place. Hence, not much advantage can be derived from his
testimony by the prosecution.
32. Hira Singh (PW4), another witness to recovery, stated
that he, police, Tej Ram and Lalit Up Pradhan went to the house of
the accused. The accused took out the knife kept beneath the
mattress on the trunk. The police measured the knife and seized it.
He stated in his cross-examination that all the people went
together. The house was open. The knife was not measured in his
presence. He denied that the knife was brought from the kitchen
and put underneath the mattress. No statement of Tej Ram was
recorded in his presence. He denied that no recovery was effected in
his presence.
33. This witness has supported the prosecution’s case that
the knife was kept between the mattresses and was recovered at the
instance of the accused. However, keeping in view the fact that Up
Pradhan Lalit Kumar (PW3), another witness to recovery, has not
supported the prosecution case about the recovery. His testimony is
to be seen with due care and caution.
34. A similar statement was made by Lalit Kumar (PW3). He
also admitted that the house was open when they visited it. Hira
Singh (PW4) also stated in his cross-examination that the accused
35
2024:HHC:15874
resides in the house with his two sons. This shows that the accused
was not in exclusive possession of the house and the learned Trial
Court had rightly held that not much could be made out of the
recovery of the knife.
35. Constable Anil Kumar (PW7) stated that accused Tej
Ram also told on enquiry that he could get the knife recovered from
his room kept beneath the mattress above the trunk in his house.
The statement (Ext.PW7/B) was recorded. He, Kuldeep, SHO Rajan,
HC Hans Raj, HC Chhaju Ram and the accused went in the official
vehicle to village Sanoti. The accused asked the police to stop the
vehicle near his house and identified his house. SHO had called Up
Pradhan Lalit Kumar (PW3) and another person. The accused led
the police to his house and got the knife (Ext.P2) recovered, which
was kept beneath the mattress (Ext.P4). The knife was measured,
and its length was found to be 9 ½ inches. He stated in his cross-
examination that Up Pradhan met them at about 5 PM. Both the
witnesses were together.
36. The other witness to the disclosure statement of the
consequent recovery were not examined.
37. There is a force in the submission of Mr Ram Murti
Bisht, learned Legal Aid Counsel for the accused, that it is highly
36
2024:HHC:15874
improbable that the accused would have concealed the knife with
which he had murdered the deceased in the room between the
mattresses and would have got it recovered after six days of the
incident. The accused was residing with his sons who could have
easily discovered the knife kept beneath the mattress while
removing the bedding. Such conduct is highly improbable and casts
doubt on the concealment and recovery of the knife. Learned Trial
Court has rightly pointed out that in the absence of the examination
of the knife for the fingerprint impressions and their comparison
with the fingerprints of the accused, not much can be made out of
the discovery of the knife.
38. It was submitted that the report of the analysis shows
that the DNA lifted from the knife matches the DNA of the
deceased, clearly suggesting that the knife was used for the
commission of crime. The report of the DNA will not assist the
prosecution because the prosecution was further required to prove
that the accused had used the knife, which could have been proved
by establishing the fingerprint or even by the presence of the DNA
of the accused. Such evidence was not led and it is difficult to record
a conviction on the disclosure statement and the consequent
recovery of the knife. Thus, the learned Trial Court had taken a
37
2024:HHC:15874
reasonable view while discarding the evidence in support of the
recovery of the knife, and this Court will not interfere with such a
view even if it would have taken a different view had the matter
been decided by it originally.
39. The prosecution has also relied upon the pointing of the
place where the accused had stabbed the deceased and thrown her.
It is an admitted case that no recovery was effected pursuant to
such pointing. It was held in State of Maharashtra Versus Damu
Gopinath Shinde AIR 2000 S.C. 169 that where the statement of the
accused did not lead to the discovery of any fact, the same is not
admissible. It was observed: –
“The information permitted to be admitted in evidence is
confined to that portion of the information which “distinctly
relates to the fact thereby discovered.” But the information
to get admissibility need not be so truncated as to make it
insensible or incomprehensible. The extent of information
admitted should be consistent with understandability. In this
case, the fact discovered by P.W. 44 is that A-3 Mukinda
Thorat had carried the dead body of Dipak to the spot on the
motorcycle.
38. How did particular information lead to the discovery of
the fact? No doubt, the recovery of the dead body of Dipak
from the same canal was antecedent to the information,
which P.W. 44 obtained. If nothing more was recovered
pursuant to and subsequent to obtaining the information from
the accused, there would not have been any discovery of any fact
at all. But when the broken glass piece was recovered from
that spot and that piece was found to be part of the tail lamp
of the motorcycle of A-2 Guruji, it can safely be held that the
38
2024:HHC:15874Investigating Officer discovered the fact that A-2 Guruji had
carried the dead body on that particular motorcycle up to the
spot.” (Emphasis supplied).
40. Therefore, the prosecution cannot derive any advantage
from the pointing of the place by the accused.
41. The police had seized the shoes of the accused, but no
blood or DNA of the deceased was found. Further, the Medical
Officer had seized the clothes of the accused, but no blood or DNA
was detected on the clothes of the accused. Thus, there is no
corroboration to the prosecution’s version that the accused had
stabbed the deceased.
42. No further point was urged.
43. Therefore, the learned Trial Court had taken a
reasonable view, which could have been taken based on the
evidence led before it. Hence, the present appeal fails, and the same
is dismissed.
44. The accused is in Judicial custody, he be released from
custody forthwith, if not required in any other case. A copy of the
release order be sent to Superintendent Sub-Jail Kaithu, District
Shimla, through FASTER for necessary compliance.
39
2024:HHC:15874
45. In view of the provisions of Section 437-A of the Code of
Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS)], the respondent/accused is directed to
furnish his personal bond in the sum of ₹25,000/- with one surety
in the like amount to the satisfaction of the learned Registrar
(Judicial) of this Court/learned Trial Court, within four weeks,
which shall be effective for six months with stipulation that in the
event of Special Leave Petition being filed against this judgment, or
on grant of the leave, the respondent/accused, on receipt of
notice(s) thereof, shall appear before the Hon’ble Supreme Court.
46. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith. Pending miscellaneous
application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
26th December, 2024
(Nikita)
Digitally signed by KARAN SINGH GULERIA
Date: 2024.12.26 13:47:43 IST
