Himachal Pradesh High Court
Karan Singh And Another vs State Of H.P on 8 January, 2025
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
Neutral Citation No. ( 2025:HHC:1647 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 94 of 2020
Reserved on: 31.12.2024
Date of Decision: 08.01.2025
Karan Singh and another …Appellants.
Versus
State of H.P. ...Respondent.
Coram
Hon’ble Mr Justice Tarlok Singh Chauhan, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. M.A. Khan, Senior Advocate with
Mr. Azmat Hayat Khan, Advocate.
For the Respondent : I.N. Mehta, Senior Additional
Advocate General, with Ms. Sharmila
Patial, Advocate
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 27.11.2019 passed by learned Additional Sessions Judge,
Hamirpur (learned Trial Court) vide which the appellants (accused
before learned Trial Court) were convicted of the commission of
offences punishable under Sections 302 and 201 read with Section
34 of Indian Penal Code (hereinafter referred to as IPC) and order
dated 28.11.2019 vide which they were sentenced as under:
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:1647 )
Under Section 302 read To suffer imprisonment for life, pay fine
with Section 34 IPC
of ₹ 10,000/- each and in default of
payment of fine to undergo further
simple imprisonment for two years.
Under Section 201 read To suffer rigorous imprisonment for 3
with Section 34 IPC
years, pay a fine of ₹ 5,000/-each and in
default of payment of fine to undergo
further simple imprisonment for six
months.
Both the substantive sentences of imprisonment were ordered to
run concurrently.
(Parties shall hereinafter be referred to in the same 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 for the
commission of offences punishable under Sections 302 and 201
read with Section 34 of IPC. It was asserted that the police were
informed by the control room, Hotel (1), that a dead body was lying
beneath the bridge. The information was reduced into writing, and
entry No.3, dated 13.06.2016 (Ext.PW24/A), was recorded. ASI
Vinod Kumar (PW34), HC Vinod Kumar (PW23) and HHC Amar
Nath (PW26) went to verify the correctness of the information. ASI
Vinod Kumar (PW34) found one half-burned body wearing only
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Neutral Citation No. ( 2025:HHC:1647 )underwear lying under a small bridge 129/1 on the Ghumarwin-
Hamirpur Highway. Half of the left arm and left ear of the dead
body were partly eaten by the animals. One nail was embedded on
the forehead, and two nails were embedded on each soles of the
feet. Tattoos of Prem Raj, Om Namah Shivaye and Om Jai Shankar
appeared to be made on the arm. ASI Vinod Kumar (PW34)
conducted the inquest and prepared the reports (Ext.PW34/A to
Ext.PW34/C). He filed an application (Ext.PW23/A) before the
Regional Hospital, Hamirpur, for conducting the autopsy of the
dead body and sent the dead body along with the application to the
Regional Hospital with HC Vinod Kumar (PW23). Dr Vijay Arora
(PW33) conducted the postmortem examination of the dead body
and found multiple injuries on it. He also found, after cleaning the
right forearm, that a tattoo mark depicting ‘Prem Raj Singh, Gram
Madhkar, Zila Rampur’ in Hindi was made on the arm. According to
his provisional opinion, the cause of death was a cumulative effect
of compression of the neck and subdural haemorrhage leading to
compression of the brain as a result of injuries No. 1, 2, 3 and 6,
which were sufficient in the ordinary course of nature to cause
death. The probable time lapse between the injury and death was a
few minutes. He issued the postmortem report (Ext.PW33/A). He
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Neutral Citation No. ( 2025:HHC:1647 )
handed over the postmortem report, original inquest papers,
sealed jar, and sealed packet of cloth containing belongings of the
deceased, including five nails. He also handed over a sealed
envelope containing blood on gauze, three teeth, including one
molar, in a vial for DNA profiling, Viscera, and the sample seal to
the police official accompanying the dead body. ASI Vinod Kumar
(PW34) prepared a rukka (Ext.PW31/A) and sent it to the Police
Station, Hamirpur, through HHC Amarnath (PW26). FIR
(Ext.PW31/B) was registered in the police station. ASI Vinod Kumar
(PW34) clicked the photographs (Ext.PW16/A5 to Ext.PW16/A14)
and prepared the spot map (Ext.PW34/D). He lifted the blood lying
on the spot with the help of cotton in a small vial and sealed it in a
separate parcel with three seals of ‘V’. He seized it vide memo
(Ext.PW1/A). He lifted the sample of burnt cloth stained with blood
and ashes and put it in a poly packet. He sealed the packet in a
parcel with three seals of ‘V’. He seized it vide memo (Ext.PW1/B).
He obtained the seal impression on a separate piece of cloth
(Ext.PW1/C) and handed over the seal to Anil Kumar (PW1) after the
use. The case file was handed over to Inspector Chhota Ram
(PW36) for conducting further investigation. He verified the name
and address written on the deceased’s arm from Police Station
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Neutral Citation No. ( 2025:HHC:1647 )
Dhatia. The incharge of the Police Station, Dhatia, informed that
Prem Raj was a resident of village Madhkar and was residing with
his nephew Karan at Una. He also disclosed the mobile number of
Karan. Inspector Chhota Ram (PW36) requested the
Superintendent of Police, Hamirpur, to get the call detail record,
customer application form and billing address of the mobile phone
from the service provider. A copy of the billing address
(Ext.PW27/B), copy of the Customer Application Form
(Ext.PW27/C), copy of the identification document (Ext. PW27/C1),
copy of call detail records (Ext. PW27/D) and copy of Decoded Cell
I.D. (Ext.PW27/E) were issued by Devender Verma (PW27). He also
issued a certificate under Section 65B of the Indian Evidence Act
(Ext.PW27/F). Inspector Chhota Ram (PW36) went through these
documents and found that the mobile phone was used near
Shahtalai/Deot Sidh 3-4 days before the incident, and it was also
used near the place of the occurrence during the night of the
incident. The location of the mobile phone was found at
Hoshiarpur on 15.06.2016. Inspector Chhota Ram (PW36) called
accused Karan on his mobile number to Hamirpur. Accused Karan
disclosed that accused Virender was with him at the time of the
incident. Inspector Chhota Ram (PW36) brought accused Virender
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Neutral Citation No. ( 2025:HHC:1647 )
to Hamirpur. He interrogated the accused and arrested them on
16.06.2016. One Nokia Mobile was found during the personal
search of accused Karan, which was seized vide memo
(Ext.PW5/A). The dead body was handed over to Parmeshwari vide
memo (Ext.PW8/A). Accused Karan made a disclosure statement
(Ext.PW19/A) that he had concealed one bag in the bushes near
Sukar Khad, and he could get it recovered. Accused Virender made a
disclosure statement (Ext.PW19/B) that he had concealed the
plastic shoes of the deceased in the bushes near Sukar Khad, which
he could get recovered. The accused led the police party to Sukar
Khad. SI Chhota Ram (PW36) associated Sanjay Kumar and Sunil
Kumar in the investigation at Jhilarari. Accused Karan got the
police vehicle stopped at some distance behind Sukar Khad bridge
and got down. He got recovered one bag concealed in the bushes
about 30 meters above the road. Two shirts, two pants, one kurta,
two pyjamas, a vest, underwear, a belt, a woollen cap, one three-
pin plug with wire, a toka, one saw, one behallu, two plastic
watches, an Aadhaar card of Prem Raj, identity card, passbook, two
passport size photos were found in the bag. These were put in the
bag in the same manner in which they were recovered. The bag was
put in a cloth parcel, and the parcel was sealed with five
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Neutral Citation No. ( 2025:HHC:1647 )
impressions of seal ‘X’. The parcel was seized vide memo
(Ext.PW10/A). Accused Virender got one pair of plastic shoes
recovered from the bushes about 50 meters below the road on the
left side. These were sealed in a cloth parcel with five seals of seal
‘X’. These were seized vide memo (Ext.PW10/B). SI Chhota Ram
(PW36) obtained the seal impression (Ext.PW10/C) and handed
over the seal to Sanjay Kumar after the use. The entire process was
got video-graphed by Constable Pawan Kumar (PW35). Both the
accused got the spot identified. Memo (Ext.PW2/A) was prepared.
Accused Karan picked up one stone from the spot and disclosed
that the nails were fixed on the deceased’s head and feet with it.
The stone was sealed in a cloth parcel with three seals of seals ‘A’.
Seal impression (Ext.PW2/C) was taken, and the seal was handed
over to Yashwant Singh (PW2) after the use. The stone was seized
vide memo (Ext.PW2/B). The case property was handed over to HC
Kiran Kumar (PW29), who made the entries in the Malkhana
register and deposited the case property in Malkhana. SI Chhota
Ram (PW36) prepared the spot map (Ext.PW34/A1 and
Ext.PW34/B1). Accused Karan made a disclosure statement
(Ext.PW25/A) that he had concealed his clothes, which he was
wearing on the date of the occurrence in the hut of his father at
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Neutral Citation No. ( 2025:HHC:1647 )
Badla, Hoshiarpur, which he could get recovered. Accused Virender
also made a disclosure statement (Ext.PW25/B) that he had
concealed his clothes along with the mobile and voter ID Card of
deceased Prem Raj in the hut of his father at Jhalowal, Hoshiarpur,
which he could get recovered. He led the police to Badala, where
accused Karan identified the hut of his father and got one blood-
stained jean pants and shirt recovered from the hut. SI Chhota Ram
(PW36) sealed them in a cloth parcel with five seals of ‘A’. The
parcel was seized vide memo (Ext.PW25/C). Accused Karan
produced his motorcycle bearing registration No. HP20C-6609,
along with documents which were seized vide memo
(Ext.PW25/D). SI Chhota Ram (PW36) prepared the spot map
(Ext.PW34/C1). He went to Jhalowal Khanoor, where accused
Virender identified the hut of his father and got one mobile and a
voter card of Prem Raj recovered. These were seized vide memo
(Ext.PW25/F). Accused Virender got recovered his pants and t-
shirt, which were seized vide memo (Ext.PW25/E). Mobile and
voter cards were sealed in a cloth parcel with three seals of seal ‘A’.
The pants and shirt were sealed in another cloth parcel with five
seals of seal ‘A’. The seal impressions (Ext.PW25/G and
Ext.PW34/D1) were obtained on separate pieces of cloth, and the
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Neutral Citation No. ( 2025:HHC:1647 )
seal was handed over to witness Kewal Singh after the use. The
spot map (Ex.PW34/E) was prepared. The entire process was
videographed by HHC Pawan Kumar (PW35). Shashi Kumar (PW17)
issued a copy of Jamabandi (Ex.PW17/C and Aks Shajra
(Ext.PW17/B) of the place where the dead body was lying. The case
property was sent to RFSL, Mandi and SFSL, Junga. Reports
(Ex.PW34/G, Ex.PW37/A, Ex.PW37/B, Ex.PW37/C, Ex.PW37/D and
Ex.PW33/B1) were issued stating that 117.04 mg% of Ethyl Alcohol
was found in the viscera. No poison was detected in the viscera.
Human blood Group AB was detected on the blood sample,
underwear, remnants of burnt clothes, blood lifted from the spot
and pants of accused Karan Singh. Human blood was detected on
the nail and ring, but the results were inconclusive in respect of the
blood group. No blood was detected on the stone, but fresh scratch
marks were present on it. The stone could have been used to fasten
the nails. A mixed DNA profile was obtained from the pants of
accused Karan Singh, which was different from the DNA obtained
from the blood sample of the deceased and the tooth of the
deceased. It was found after the investigation that accused Karan
Singh and accused Virender had visited Baba Balak Nath with other
villagers. They stayed at Shahtalai on 10.06.2016. Homwati (PW3),
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Neutral Citation No. ( 2025:HHC:1647 )
the wife of accused Karan, was at home. The deceased was the
uncle of accused Karan. The deceased tried to molest Homwati in
the absence of accused Karan. She revealed this incident to her
brother, Dwarki, who called accused Karan Singh at 5.33 AM.
Accused Karan Singh and accused Virender returned to the village.
They took Prem Raj with them on a motorcycle bearing
Registration No. HP-20C-6609. They brought him to the place of
the incident, strangulated him and threw the dead body beneath
the bridge after embedding nails in the head and the soles of the
feet. They took out the clothes of the deceased and burnt them
after keeping them on the dead body so that the dead body could
not be identified. The statements of witnesses were recorded as per
their version, and after the completion of the investigation, the
challan was prepared and presented before learned Judicial
Magistrate First Class, Court No.4, Hamirpur, who committed it to
learned Sessions Judge for trial, who assigned it to learned
Additional Sessions Judge, Hamirpur (learned Trial Court).
3. The learned Trial Court charged the accused with the
commission of offences punishable under Sections 302 and 201
read with Section 34 of IPC, to which they pleaded not guilty and
claimed to be tried.
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Neutral Citation No. ( 2025:HHC:1647 )
4. The prosecution examined 38 witnesses to prove its
case. Anil Kumar (PW1) is the witness to the recovery of the dead
body. Yashwant Singh (PW2) is the witness to the recovery of the
dead body and the stone. Homwati (PW3) is the wife of accused
Karan; however, she did not support the prosecution case. Raj
Kumar (PW4) was the owner of the motorcycle who had sold it to
accused Karan Singh. LC Kanchan (PW5) and Usha Birla (PW6) are
the witnesses to personal search of the accused. Dwarki (PW7) is
the brother of Homwati; he did not support the prosecution case.
Surinder Kumar (PW8) is the witness to the identification of the
dead body. Parvesh Kumar (PW9) proved that accused Karan,
Virender and Prem Raj had visited his Dhaba and consumed
chicken and alcohol. Sanjay Kumar (PW10) is the witness to the
recoveries pursuant to the disclosure statements made by the
accused persons. Ram Nath (PW11) proved that accused Karan was
residing in a hut with his wife and uncle. Daljeet Singh (PW12) and
Kundan Singh (PW13) did not support the prosecution case. Ravi
Kumar (PW14) is the witness to the recovery. Indu Bala (PW15)
proved that she was not using the SIM. Ajay Kumar (PW16)
developed the photographs and prepared the DVD of the video
recording. Shashi Kumar (PW17) issued the Jamabandi and Aks
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Neutral Citation No. ( 2025:HHC:1647 )
Shajra. Suraj Prakash (PW18) was the mobile phone seller, but he
did not support the prosecution case. HC Surinder Kumar (PW19) is
the witness to the identification, disclosure statement and the
consequent recoveries. Jiwan Kumar (PW20) had accompanied the
accused to Baba Balak Nath. LC Raksha Devi (PW21) brought the
viscera and the result from RFSL, Mandi. LC Ambika (PW22)
carried the case property to SFSL, Junga. HC Vinod Kumar (PW23)
went to the spot to verify the correctness of the information
regarding the recovery of the dead body. He also visited Dr
Rajendra Prasad Government Medical College and Hospital, Tanda
and brought postmortem report and other articles handed over to
him after the postmortem examination. HHC Santosh Kumar
(PW24) proved the entry in the daily diary. HHC Kewal Singh
(PW25) is the witness to the disclosure statement and consequent
recoveries. HHC Amar Nath (PW26) had visited the spot after
receiving the information regarding the discovery of the dead
body; he brought the rukka to the Police Station. Devender Verma
(PW27) issued the call detail record, Customer Application Form
and other documents. Shashi Kant Verma (PW28) issued the call
detail record of the mobile phones. HC Kiran Kumar (PW29) was
working as MHC, with whom the case property was deposited. Dr
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Neutral Citation No. ( 2025:HHC:1647 )
Mohan Thakur (PW30) was working as a Medical Officer, to whom
an application for postmortem examination of an unidentified
person was filed, who referred the dead body to a Forensic Expert
at Tanda. Rajinder Kumar (PW31) signed the FIR. Inspector
Kuldeep Kumar (PW32) prepared the challan. Dr. Vijay Arora
(PW33) conducted the postmortem examination of the dead body.
SI Vinod Kumar (PW34) went to the spot to verify the correctness
of the information and conducted the initial investigation. HHC
Pawan Kumar (PW35) is the witness to the recovery. Inspector
Chhota Ram (PW36) conducted the investigation. Inspector
Sanjeev Gautam (PW37) prepared the supplementary challan.
Krishan Pal (PW38) is the witness to recovery, but he did not
support the prosecution case.
5. Accused Karan, in his statement recorded under Section
313 of Cr.P.C., admitted that SI Chhota Ram (PW36) contacted him
and called him to Hamirpur. He admitted that he and the police
went to Jhalowal, from where accused Virender was brought. He
admitted that he and accused Virender were arrested on 16.6.2016.
He admitted that Prem Raj was his uncle who used to reside with
him and his (Karan’s) wife, Homwati (PW3). He admitted that the
motorcycle was sold to him by Raj Kumar. He admitted that he and
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Neutral Citation No. ( 2025:HHC:1647 )
another boy had gone to Baba Balak Nath Temple, and all of them
came to their native place. He admitted that he had told Ravi
Kumar (PW14) that Prem Raj had met with an accident and he went
to Hamirpur. He stated that he was innocent and was falsely
implicated.
6. Accused Virender admitted in his statement recorded
under Section 313 Cr.P.C. that he was brought from Jhalowal. He
admitted that he and his co-accused were arrested. He admitted
that accused Karan went with one boy to Baba Balak Nath Temple.
He admitted that accused Karan told Ravi Kumar (PW14) that Prem
Raj had met with an accident, and thereafter, accused Karan, Jiwan
Kumar (PW20) and Suresh went to Hamirpur. He stated that he
was innocent and that he was falsely implicated.
7. It was stated by the accused initially that they wanted to
lead defence evidence, but subsequently, no evidence was led.
8. The learned Trial Court held that there was no direct
evidence of the incident. The prosecution relied upon the
circumstantial evidence to prove its case. It was duly proved on
record that the partially burnt dead body of an unknown person
was found by the police on Ghumarwin Hamirpur highway, which
was later on identified as that of Prem Raj, who was residing with
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Neutral Citation No. ( 2025:HHC:1647 )
accused Karan. Accused Karan and accused Virender had gone to
Baba Balak Nath Temple, but they cut short their visit and returned
to their home on 11.6.2016 after receiving a call. Accused Karan and
Prem Raj were seen together in Saini Fast Food Hotel. The location
of the mobile phone of accused Karan was found near the place of
occurrence. The accused got recovered the articles belonging to the
deceased. The accused also got recovered one stone, which was
used for embedding nails on the forehead and feet of the deceased.
The accused stated that the deceased had left the home in the
morning for his native place. This fact was not established by any
material on record. They had destroyed the evidence by burning
the dead body. This chain of circumstances unerringly led towards
the guilt of the accused. Hence, the accused were convicted and
sentenced as aforesaid.
9. Being aggrieved from the judgment and order passed by
the learned Trial Court, the accused have filed the present appeal
asserting that the learned Trial Court erred in convicting and
sentencing the accused. Learned Trial Court failed to view the
evidence from a proper perspective. The reasoning of the learned
Trial Court was unsustainable. Homwati (PW3) did not support the
prosecution case regarding her molestation. Hence, the motive
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Neutral Citation No. ( 2025:HHC:1647 )
propounded by the prosecution for murdering Prem Raj was not
established. The Manager of Saini Fast Food Hotel stated that three
persons came to his shop on 12.06.2016, at about 10.00 AM, and
they went towards Una after 2-3 hours. The last seen theory would
come into play when the time gap between the last seen and the
murder is less. In the present case, the time gap was much more.
Learned Trial Court had wrongly relied upon the recovery of the
stone. It is highly improbable that the accused would have left the
stone on the spot, which was discovered by the police. The recovery
of the clothes from the hut of Karan’s father is highly improbable
as no one would conceal his clothes in the hut of his father after
committing the murder. Similarly, the recovery of clothes and the
articles of the deceased from the hut was also improbable.
Homwati (PW3), Dwarki (PW7), Ravi Kumar (PW14) and Krishan
Pal (PW38) turned hostile and did not support the prosecution
case. Learned Trial Court erred in convicting and sentencing the
accused by relying upon the contradictory versions of other
witnesses. Therefore, it was prayed that the present appeal be
allowed and the judgment and order passed by the learned Trial
Court be set-aside.
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Neutral Citation No. ( 2025:HHC:1647 )
10. We have heard Mr M.A. Khan, learned Senior Counsel
assisted by Mr Azmat Hayat Khan, learned Counsel for the
appellant/accused and Mr I.N. Mehta, learned Senior Additional
Advocate General assisted by Ms Sharmila Patial, learned
Additional Advocate General for the respondent-State.
11. Mr. M.A. Khan, learned Senior Counsel, for the
appellant/accused, submitted that the learned Trial Court erred in
convicting and sentencing the accused. The prosecution evidence
regarding the recovery was highly doubtful. The recovery was
effected from an open place which is accessible to all, and such a
recovery will not help the prosecution. The ownership of the hut
from where the articles were recovered was not proved. The wife of
the accused, Homwati (PW3), did not support the prosecution case
regarding her molestation by the deceased. Hence, the motive to
prove the crime was not established. There were discrepancies in
the testimonies of the prosecution witnesses. The circumstances
did not lead to the inference of the guilt, and the learned Trial
Court erred in convicting and sentencing the accused. He relied
upon the following judgments in support of his case:-
(i) Anil Kumar @ Shetty Vs. State of H.P.
2024:HHC:12440;
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Neutral Citation No. ( 2025:HHC:1647 )
(ii) Safiullah Vs. State 1993(1) Crimes 204;
(iii) Wilson Dayal Vs. State (1992) 11 DEL CK 0009;
(iv) Ram Pratap Vs. State of Haryana 2022 LiveLaw (SC)
1025;
(v) Ram Niwas Vs. State of Haryana (2022) LiveLaw
(SC) 670;
(vi) Arun Shankar Vs. State of Madhya Pradesh 2024
INSC 298;
(vii) Boby Vs. State of Kerala (2023) LiveLaw (SC) 50;
(viii) Raja Naykar Vs. State of Chhattisgarh 2024 LiveLaw
(SC) 50;
(ix) Shankar Vs. State of Maharashtra (2023) LiveLaw
(SC) 202;
(x) Bhaskarrao Vs. State of Maharashtra 2018 (6) SCC
591;
(xi) Shivaji Chintappa Patil Vs. State of Maharashtra
2021 (5) SCC 626;
(xii) Nandu Singh Vs. State of Madhya Pradesh (2022)
LiveLaw SC 229;
(xiii) Varsha Garg Vs. State of Madhya Pradesh and others
(2022) LiveLaw SC 662;
(xiv) Manjunath and others Vs. State of Karnataka (2023)
LiveLaw SC 961;
(xv) Sattatiya @ Satish Rajanna Kartalla Vs. State of
Maharashtra 2008 (3) SCC 210;
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Neutral Citation No. ( 2025:HHC:1647 )
(xvi) Prakash Nishad @ Kewat Zinak Nishad Vs. State of
Maharashtra 2023 LiveLaw SC 461;
(xvii) Shantabai and others Vs. State of Maharashtra 2008
(16) SCC 354;
(xviii) Balwant Singh Vs. State of Chhattisgarh 2019 (7)
SCC 781;
(xix) Eswarappa @ Doopaba Eswarappa Vs. State of
Karnataka, Cr. Appeal No. 1841 of 2009, decided on
15.02.2018;
(xx) Palraj Vs. State, Crl. Appeal (MD) Nos. 59, 429 of
2018, decided on 16.12.2019;
(xxi) Arjun Marik Vs. State of Bihar, 1994 (2) RCR
(Criminal) 609;
(xxii) Maghavendra Pratap Singh alias Pankaj Singh Vs.
State of Chhattisgarh (2023) LiveLaw SC 358;
(xxiii) Prabhu Vs. State of U.P. decided on 3.5.1962; and
(xxiv) Mani Vs. State of Tamilnadu, Cr. Appeal No. 443 of
2006, decided on 08.01.2008.
12. Mr. I.N. Mehta, learned Senior Additional Advocate
General for the respondent-State, submitted that the learned Trial
Court has rightly appreciated the material on record. The article
may be lying in a place accessible to all but concealed, like in the
present case, in the bushes. The recovery of such articles is
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Neutral Citation No. ( 2025:HHC:1647 )
permissible under Section 27 of the Indian Evidence Act. Therefore,
he prayed that the present appeal be dismissed.
13. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
14. 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 spe-
cial inference. It is called Circumstantial Evidence. According
to him, in every case of circumstantial evidence, there are
always 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
accused 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 es-
tablished;
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2. Those circumstances must be of a definite tendency
unerringly 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 ev-
ery 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 pros-
ecution is able to prove beyond reasonable doubt the com-
plete 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 satisfac-
tion of the expected 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
which rests on circumstantial evidence alone. The most fun-
damental decision of this Court is Hanumant v. State of
Madhya Pradesh [(1952) 2 SCC 71: AIR 1952 SC 343: 1952
SCR 1091: 1953 Cri LJ 129]. This case has been uniformly fol-
lowed and applied by this Court in a large number of later
22
Neutral Citation No. ( 2025:HHC:1647 )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 pro-
posed to be proved. In other words, there must be a chain
of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused, and it must be such as to show that within all
human probability, the act must have been done by the
accused.
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may be’
established. There is not only a grammatical but a legal dis-
tinction 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 observa-
tions were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
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.”
23
Neutral Citation No. ( 2025:HHC:1647 )
(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 hypothe-
sis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that, in all human probability, the act must have
been done by the accused.
154. These five golden principles, if we may say so, 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
different when we have to determine upon circumstantial
evidence, the judgment in respect of which is essentially in-
ferential. There is no apparent necessary connection between
the facts and the inference; the facts may be true and the in-
ference erroneous, and it is only by comparison with the re-
sults of observation in similar or analogous circumstances
that we acquire confidence in the accuracy of our conclu-
sions.?
The term PRESUMPTIVE is frequently used as synony-
mous with CIRCUMSTANTIAL EVIDENCE, but it is not so used
with strict accuracy, The word” presumption,” ex vi termini,
imports an inference from facts, and the adjunct “presump-
tive,” as applied to evidentiary facts, implies the certainty of
some relation between the facts and the inference. Circum-
stances generally, but not necessarily, lead to particular in-
ferences, for the facts may be indisputable, and yet their re-
24
Neutral Citation No. ( 2025:HHC:1647 )
lation 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, explana-
tion or solution upon any other supposition than that of the
truth of the fact which it is adduced to prove; the mode of ar-
gument resembling the method of demonstration by the re-
ductio 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 infer-
ence with respect to whether the chain of circumstances is
complete, and when the circumstances therein are collec-
tively considered, the same must lead only to the irresistible
conclusion 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 hy-
pothesis of the guilt of the accused.”
15. 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.
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, summarised key principles which
25
Neutral Citation No. ( 2025:HHC:1647 )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 has
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 Ku-
mar 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
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
26
Neutral Citation No. ( 2025:HHC:1647 )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 summarised
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
that 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.”
16. A similar view was taken in Prabhoo v. State of U.P., 1962
SCC OnLine SC 383 : (1963) 2 SCR 881: AIR 1963 SC 1113 : (1963) 2 Cri LJ
27
Neutral Citation No. ( 2025:HHC:1647 )
182, Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 : (2008) 1 SCC
(Cri) 733 : 2008 SCC OnLine SC 122 , Shantabai v. State of
Maharashtra, (2008) 16 SCC 354 : (2010) 4 SCC (Cri) 289 : 2008 SCC
OnLine SC 419, Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591 :
(2018) 3 SCC (Cri) 374 : 2018 SCC OnLine SC 457 , Shivaji Chintappa
Patil v. State of Maharashtra, (2021) 5 SCC 626 : 2021 SCC OnLine SC
158 , Ram Niwas v. State of Haryana, (2022) 15 SCC 306 : 2022 SCC
OnLine SC 1007, Ram Pratap v. State of Haryana, (2023) 2 SCC 345 :
2022 SCC OnLine SC 1714, Boby v. State of Kerala, (2023) 15 SCC 760 :
2023 SCC OnLine SC 50, Shankar v. State of Maharashtra, 2023 SCC
OnLine SC 268, Manjunath v. State of Karnataka, 2023 SCC OnLine SC
1421, Raja Naykar v. State of Chhattisgarh, (2024) 3 SCC 481 : 2024
SCC OnLine SC 67, and Arun Shankar v. State of M.P., 2024 SCC
OnLine SC 527 cited on behalf of the accused.
17. Dr. Vijay Arora (PW33) conducted the postmortem
examination of the dead body. He found an incised wound on the
right side of the forehead, a metallic nail embedded on the
forehead, a wound without any nail above the outer part of the left
eyebrow, a metallic nail embedded on the sole of the left foot, three
similar wounds without any blood infiltration and any fracture on
the heels of both feet and sole, red contusions on the subcutaneous
28
Neutral Citation No. ( 2025:HHC:1647 )
tissue, muscles and right lateral aspect of the trachea, and fracture
of the Hyoid bone. He also found other injuries, and in his opinion,
the cause of death was the cumulative effect of compression of the
neck and subdural haemorrhage leading to compression of the
brain.
18. He was not cross-examined regarding the injuries
sustained by the deceased, and his findings that the death had
taken place due to the compression of the neck and subdural
haemorrhage leading to the compression of the brain have
remained unrebutted. Therefore, it was duly proved that the
unidentified male, upon whose body autopsy was conducted by Dr.
Vijay Arora (PW33), had met with a homicidal death.
19. Dr. Vijay Arora (PW33) stated that he cleaned the right
forearm and found a tattoo mark depicting Prem Raj Singh Village
Madhkar, District Rampur. Inspector Chhota Ram (PW36) stated
that he contacted the In-charge of Police Post Dhatia, who revealed
that Prem Raj was a resident of village Madhkar, Uttar Pradesh and
was residing with his nephew Karan at Una. He stated that he
contacted the accused, Karan. Accused Karan admitted in his
statement recorded under Section 313 Cr.P.C. that Inspector
29
Neutral Citation No. ( 2025:HHC:1647 )
Chhotta Ram had contacted him. He also admitted that he had
identified the body of Prem Raj in the dead house, Hamirpur.
20. Ravi Kumar (PW14) stated that accused Karan Singh
was residing with his family in the hut. Prem Raj was also residing
with accused Karan Singh. Accused Karan Singh told him on
15.06.2016 that Prem Raj had met with an accident near Hamirpur.
He (Ravi Kumar), Jiwan (PW20), Suresh and accused Karan went to
the dead house at Hamirpur and identified the dead body of Prem
Raj. This part of his testimony that accused Karan had identified
the body to be Prem Raj was not challenged in the cross-
examination. On the other hand, it was suggested to him that
Prem Raj was residing with accused Karan in the same hut.
21. Jiwan Kumar (PW20) stated that he, accused Karan,
accused Virender and many other persons from the village went to
Baba Balak Nath Temple on 09.06.2016. Accused Karan received a
telephone call from his home. Accused Karan and accused Virender
returned to their home. Accused Karan said on 15.06.2016 that his
uncle Prem Raj had met with an accident, and his body was to be
identified. He, accused Karan and Suresh went to the dead house of
Regional Hospital, Hamirpur, where accused Karan identified the
dead body as that of his uncle Prem Raj. He denied in cross-
30
Neutral Citation No. ( 2025:HHC:1647 )
examination that accused Karan and accused Virender had also
returned with him from Baba Balak Nath Temple.
22. His testimony regarding the identification of the dead
body to be that of Prem Raj was not challenged in the cross-
examination and is deemed to be accepted. Hence, the testimonies
of Ravi Kumar (PW14) and Jiwan Kumar (PW20), coupled with the
statement of the accused Karan, recorded under Section 313 Cr.P.C.,
duly proved that the dead body was of Prem Raj.
23. Nothing was suggested to Jiwan Kumar (PW20) in his
cross-examination as to why he would be deposing falsely against
the accused. The accused also did not state in his statement
recorded under Section 313 Cr.P.C. that he had an enmity with
Jiwan Kumar. Further, the learned Trial Court had rightly pointed
out that the call detail record (Ext.PW27/D) clearly showed that
accused Karan had received a call at 5:30 am. Homwati (PW3)
admitted after she was declared hostile that she had asked her
brother Dwarki (PW7) to call her husband. She also admitted that
her husband rang her back after receiving the call. Dwarki (PW7)
admitted that his phone was with his sister. The cumulative effect
of this evidence is that accused Karan had received a call from
Dwarki (PW7), his brother-in-law, after which he and Virender cut
31
Neutral Citation No. ( 2025:HHC:1647 )
short their visit to Baba Balak Nath Temple and returned to their
home.
24. Homwati (PW3) and Dwarki (PW7) stated in their
cross-examination that the deceased was saying that he wanted to
go to his native place, and he left alone to go to his native place.
Both these witnesses were declared hostile. Homwati (PW3) is the
wife of accused Karan and Dwarki (PW3) is her brother. Hence,
they have a reason to support accused Karan. Moreover, their
testimonies that the deceased had left alone are not supported by
the material on record.
25. Parvesh Kumar (PW9) stated that three persons came to
his shop on 12.06.2016 at 10 Am on a TVS motorcycle bearing
registration No. HP20C 6609 driven by accused Karan Singh.
Accused Karan ordered to cook ½ kg chicken. He was calling
‘chacha’ to one person and Virender to another. He identified
Karan and Virender. Chacha had one bag. He (Parvesh Kumar)
served chicken in a separate room. They also consumed liquor.
They went towards Una on the motorcycle. Subsequently, he came
to know that Karan and Virender had killed the person, who was
with them. He stated in the cross-examination that 4-5 persons
were working in his shop. He admitted that many people used to
32
Neutral Citation No. ( 2025:HHC:1647 )
visit his shop, and he did not know all of them. He denied that
Karan had never visited his shop. He admitted that he could not tell
the number of vehicles in which the customers used to visit his
shop. He came to know from the police that the old person was
killed.
26. His testimony regarding the arrival of Karan to his shop
is duly corroborated by the call detail record (Ext.PW27/D) and
tower detail (Ext.PW27/E) in which the location of the mobile
phone of the accused Karan from 9:40:59 to 10:19:51 on 12.06.2016
was found at Taka. Parvesh Kumar (PW9) was also running a Saini
Fast Food at Village Taka. Hence, the call detail record corroborates
the statement of Parvesh Kumar (PW9) regarding the arrival of
Karan at his Fast-Food joint.
27. The report of SFSL (Ext.PW33/B) reads that 117.04 mg %
of Ethyl alcohol was found in the viscera of the deceased. This
report corroborates the version of Parvesh Kumar (PW9) that the
deceased had consumed alcohol in his fast-food joint. The
evidence of Parvesh Kumar (PW9) falsifies the testimonies of
Homwati (PW3) and Dwarki (PW7) that the deceased had left home
for his native place alone.
33
Neutral Citation No. ( 2025:HHC:1647 )
28. It was submitted that evidence of Parvesh Kumar (PW9)
will not help the prosecution because the last seen theory comes
into operation when the time between the last seen and the murder
is so close that there is no other possibility of any person except
the accused murdering the deceased. The last seen theory was
explained by the Hon’ble Supreme Court in Nizam v. State of
Rajasthan, (2016) 1 SCC 550: (2016) 1 SCC (Cri) 386: 2015 SCC OnLine
SC 782 as under:
“14. The courts below convicted the appellants on the
evidence of PWs 1 and 2 that the deceased was last seen alive
with the appellants on 23-1-2001. Undoubtedly, the “last
seen theory” is an important link in the chain of
circumstances that would point towards the guilt of the
accused with some certainty. The “last seen theory” holds
the courts to shift the burden of proof to the accused and the
accused to offer a reasonable explanation as to the cause of
death of the deceased. It is well settled by this Court that it is
not prudent to base the conviction solely on “last seen
theory”. “Last seen theory” should be applied taking into
consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow
the point of being so last seen.
15. Elaborating the principle of “last seen alive”
in State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254:
(2007) 1 SCC (Cri) 688], this Court held as under : (SCC
p. 265, para 23)
“23. It is not necessary to multiply with
authorities. The principle is well settled. The
provisions of Section 106 of the Evidence Act
itself are unambiguous and categorical in laying
down that when any fact is especially within the
knowledge of a person, the burden of proving
34
Neutral Citation No. ( 2025:HHC:1647 )that fact is upon him. Thus, if a person is last
seen with the deceased, he must offer an
explanation as to how and when he parted
company. He must furnish an explanation which
appears to the court to be probable and
satisfactory. If he does so he must be held to
have discharged his burden. If he fails to offer an
explanation on the basis of facts within his
special knowledge, he fails to discharge the
burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable
explanation in the discharge of the burden
placed on him, that itself provides an additional
link in the chain of circumstances proved
against him. Section 106 does not shift the
burden of proof in a criminal trial, which is
always upon the prosecution. It lays down the
rule that when the accused does not throw any
light upon facts which are specially within his
knowledge and which could not support any
theory or hypothesis compatible with his
innocence, the court can consider his failure to
adduce any explanation, as an additional link
which completes the chain. The principle has
been succinctly stated in Naina Mohamed, In
re. [1959 SCC OnLine Mad 173: AIR 1960 Mad
218]”
The above judgment was relied upon and reiterated in Kiriti
Pal v. State of W.B. [(2015) 11 SCC 178: (2015) 5 Scale 319]
29. This position was reiterated in Surajdeo Mahto v. State
of Bihar, (2022) 11 SCC 800: 2021 SCC OnLine SC 542 wherein it was
observed:
(i) Last seen theory
30. The case of the prosecution in the present case heavily
banks upon the principle of “last seen theory”. Briefly put,
35
Neutral Citation No. ( 2025:HHC:1647 )
the last seen theory is applied where the time interval
between the point of when the accused and the deceased
were last seen together and when the victim is found dead is
so small that the possibility of any other person other than
the accused being the perpetrator of crime becomes
impossible. Elaborating on the principle of “last seen alive”,
a three-judge Bench of this Court in Satpal v. State of
Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610, para 6]
has, however, cautioned that unless the fact of last seen is
corroborated by some other evidence, the fact that the
deceased was last seen in the vicinity of the accused, would
by itself, only be a weak kind of evidence. The Court further
held: (SCC pp. 612-13, para 6)
“6. … Succinctly stated, it may be a weak kind of
evidence by itself to found conviction upon the same
singularly. But when it is coupled with other
circumstances, such as the time when the deceased
was last seen with the accused and the recovery of the
corpse being in very close proximity of time, the
accused owes an explanation under Section 106 of the
Evidence Act with regard to the circumstances under
which death may have taken place. If the accused
offers no explanation or furnishes a wrong
explanation, absconds, the motive is established, and
there is corroborative evidence available inter alia in
the form of recovery or otherwise forming a chain of
circumstances leading to the only inference for the
guilt of the accused, incompatible with any possible
hypothesis of innocence, conviction can be based on
the same. If there be any doubt or break in the link of
the chain of circumstances, the benefit of the doubt
must go to the accused. Each case will, therefore, have
to be examined on its own facts for invocation of the
doctrine.”
31. We may hasten to clarify that the fact of the last seen
should not be weighed in isolation or be segregated from the
other evidence led by the prosecution. The last-seen theory
should rather be applied, taking into account the case of the
prosecution in its entirety. Hence, the courts have to not
36
Neutral Citation No. ( 2025:HHC:1647 )
only consider the factum of last seen but also have to keep in
mind the circumstances that preceded and followed from the
point of the deceased being so last seen in the presence of
the accused.”
30. A similar view was taken in Krishan Kumar v. State of
Haryana, 2023 SCC OnLine SC 1180 (supra), wherein it was observed:
8……’Last seen’ as a link in the chain of circumstantial
evidence would suggest the existence of oral testimony of at
least one witness to establish that the deceased was last seen
in the company of the accused. In this context, it is relevant
to refer to the following decisions:–
9. In the decision in State of UP v. Satish (2005) 3 SCC 114, this
Court held thus:
“The last seen theory comes into play where the time gap
between the point of time when the accused and the
deceased were seen last alive and then the deceased is
found dead is so small that the possibility of any person
other than the accused being a part of the crime becomes
impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with
the accused when there is a long time gap and the
possibility of another person 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. (Emphasis added)
10. This position was reiterated by this Court in Hatti
Singh v. State of Haryana (2007) 12 SCC 471. A survey of the
authorities on this issue would reveal that this position is
being followed with alacrity. Bearing in mind the said
position regarding the applicability of the ‘last seen’ theory,
we will have to examine the evidence of the last seen
available in the case on hand.
37
Neutral Citation No. ( 2025:HHC:1647 )
31. This position was reiterated in Boby v. State of Kerala,
(2023) 15 SCC 760: 2023 SCC OnLine SC 50 wherein it was observed
at page 769:
“24. Insofar as the last seen theory is concerned, it will be
relevant to refer to the following observations of this Court
in State of U.P. v. Satish [State of U.P. v. Satish, (2005) 3 SCC
114: 2005 SCC (Cri) 642] : (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 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.”
25. It could thus clearly be seen that 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. If the gap between
the time of last seen and the deceased found dead is long,
then the possibility of another person coming in between
cannot be ruled out.”
32. SI Chhota Ram (PW36) stated that he searched the
accused, Karan and got recovered a Nokia mobile during the
search. He seized the mobile vide memo (Ext.PW5/A). This memo
38
Neutral Citation No. ( 2025:HHC:1647 )
shows the SIM No. xxxx157. HC Kanchan (PW5) stated that the
search of the accused, Karan, was conducted by the police. One
mobile phone having SIM No. xxxx157 was recovered. The mobile
phone was seized by the police. It was suggested to her that no
search was conducted and no recovery was effected. However, she
denied the same. A denied suggestion does not amount to any
proof; hence, there is no reason to doubt her testimony.
33. Usha Birla (PW6) stated that the search of accused
Karan was conducted, and a mobile phone containing SIM
No.xxxx157 was recovered from his possession. The police seized
the mobile phone and the SIM. She stated in her cross-
examination that one mobile containing SIM was recovered during
the personal search of the accused. She denied that no personal
search of the accused was conducted, and no SIM was recovered.
34. She is Pradhan of Gram Panchayat Daruhi. It is not
shown that she has any interest in deposing falsely to implicate the
accused, Karan Singh. Her statement is duly corroborated by the
statements of LC Kanchan (PW5) and Chhota Ram (PW36).
Therefore, it was duly proved on record that accused Karan was
found in possession of a mobile phone containing SIM No.xxxx157.
39
Neutral Citation No. ( 2025:HHC:1647 )
35. Devender Verma (PW27) issued the Customer
Application Form (Ext. PW27/B) for the mobile No. xxxx157. It
shows that the mobile No. xxxx157 was issued in the name of Karan
Singh S/o Sh. Parmeshri R/o VPO Jhambar, District Una. It was not
suggested to Devender Verma (PW27) that the Customer
Application Form contained incorrect details. Therefore, it was
proved by his testimony that the mobile SIM No. xxxx157 was
issued to Karan. Thus, it is proved that not only SIM was issued to
accused Karan but that he was in possession of the same. Thus,
SIM No.xxxx157 is duly connected to accused Karan.
36. The call detail record of the accused (Ext.PW27/D) and
tower location (Ext.PW27/E) show that the location of the SIM
No.xxxx157 of the accused, Karan, was at Pundher on 13.06.2016 at
4:01:17. SI Chhota Ram (PW36) stated in his cross-examination
that Pundher is at a distance of 1 km from the spot. He denied that
it was located at a distance of 5 km from the spot. There is no
reason to disbelieve the testimony of Chhota Ram (PW36), and his
testimony shows that the accused, Karan, was present in the
vicinity of Pundher at 4 am.
37. Devender Verma (PW27) stated in his cross-
examination that the area covered by the tower is approximately 1-
40
Neutral Citation No. ( 2025:HHC:1647 )
1.5 km by air. He admitted that there was an Airtel tower in Bhota.
It was submitted that the details of the tower at Bhota have not
been obtained. However, it will not make any difference, as a tower
can cover an area of 1-1.5 km as per the statement of Devender
Verma (PW27). The tower at Pundher is at a distance of 1 km from
the spot, which could cover the place of the incident. Further, it is
not shown that the tower of Bhota is also located at a distance of 1-
1.5 km from the place of the incident. Therefore, the record of the
tower at Bhota will not make any difference. Moreover, the call
detail record of a mobile phone has been placed on record, which
shows the location of the mobile phone of the accused, and Bhota
is not mentioned in it; therefore, it was not necessary to get the
details of the tower at Bhota (if at all such a detail is maintained).
38. Thus, it was duly proved that the accused, Karan, was in
the vicinity of the place of the incident. This evidence, with the
accused Karan and Virender having been seen with Prem Raj in the
Saini Fast Food Corner, will establish that the accused was with the
deceased and was present near the place from where the dead body
was recovered.
39. SI Chhota Ram (PW36) stated that he interrogated the
accused in the presence of Krishan Pal (PW38) and Vikas Kumar.
41
Neutral Citation No. ( 2025:HHC:1647 )
Accused Karan made a disclosure statement (Ext.PW19/A) that he
had concealed one bag in the bushes near Sukar Khad, which he
could get recovered. Accused Virender made a disclosure statement
(Ext.PW19/B) in the presence of Krishan Pal (PW38) and Vikas
Kumar that he had concealed the plastic shoes of the deceased in
the bushes near Sukar Khad and he could get them recovered. The
accused led them to Sukar Khad. He associated Sanjay Kumar and
Sunil Kumar at Jharlrari. The accused, Karan, got the vehicle
stopped behind the Sukar Khad and got one bag recovered, which
was concealed in the bushes at about 30 meters above the road. The
bag contained the Aadhaar Card of Prem Raj, his identity card,
passport-size photographs and other articles. Accused Virender
got one pair of plastic shoes recovered from the bushes 15 meters
below the road on the left side. These were put in a cloth parcel and
were seized by the police.
40. Krishan Pal (PW38) did not support the prosecution
case. He denied that accused Karan made a statement (Ext.PW19/A)
that he had concealed the bag of Prem Raj in the bushes. He
admitted his signatures on the statement (Ext.PW19/A). He denied
that accused Virender made a statement (Ext.PW19/B) that he had
concealed the shoes of Prem Raj in the bushes near Sukar Khad of
42
Neutral Citation No. ( 2025:HHC:1647 )
Bhota, which he could get recovered. He admitted his signatures on
the statement (Ext.PW19/B). He admitted that he used to sign the
documents after reading them. He volunteered to say that the
police had obtained his signatures. He was contradicted with his
previous statement, and he denied the same.
41. He stated that he was running a jewellery shop near
police station Hamirpur. He had not shown any reason to put the
signatures at the instance of the police. He admitted that he used to
sign the papers after reading them but has not given any reason
why he deviated from the normal course in the present case. The
admission made by him regarding his signatures on the memo
shows that he had put the signatures on this document after
reading them. Being a jeweller and a shopkeeper, it cannot be
believed that he would put the signatures without reading the
documents; therefore, it is apparent that he is making a wrong
statement that nothing had transpired in his presence; hence, his
testimony has to be discarded and cannot be used for doubting the
prosecution case.
42. HC Surinder Kumar (Pw19) stated that he, Krishan Pal
(PW38) and Vikas Kumar remained associated with the police.
Accused Karan Singh made a disclosure statement that he had
43
Neutral Citation No. ( 2025:HHC:1647 )
hidden the bag of Prem Raj in Sukar Khad ahead of Bhota towards
Una in the bushes, which he could get recovered. This fact was only
in his knowledge. Memo (Ext.PW19/A) was prepared. Accused
Virender Kumar made a disclosure statement that he had hidden
the plastic shoes of deceased Prem Raj in a khad ahead of Bhota
towards Una, which he could get recovered, which fact was only in
his knowledge. Memo (Ext.PW19/B) was prepared, which was
signed by Virender and witnesses Krishan Pal (PW38) and Vikas.
HHC Kewal Singh (PW25), HHC Pawan Kumar (PW35), ASI Vinod
Kumar (PW34), SI Chotta Ram (PW36) and the accused went to
Sukar Khad. Sanjay and Sunil were associated in the investigation.
Accused Karan Singh got the vehicle stopped and led the police
party towards the upper side of the road and got recovered a bag
from the bushes at a distance of about 30 meters. The bag was
found to contain an Aadhar card, identity card, passbook, two
passport-size photographs and other articles of Prem Raj. The
police seized the bag. He identified the bag and the articles in it.
Accused Virender led the police to a place below the road at a
distance of about 15 meters and got recovered one pair of plastic
shoes. These were put in a cloth parcel, and the parcel was sealed
with five impressions of seal X. It was seized vide memo
44
Neutral Citation No. ( 2025:HHC:1647 )
(Ex.PW10/B). He identified the shoes. The accused identified the
spot beneath the bridge No. 129/1 on 18.06.2016. Memo
(Ext.PW2/A) was prepared. Accused Karan got recovered a stone
from a place near the path and on the spot. The stone was seized by
the police. Signatures of Pawan Kumar (PW35) and Yashwant Singh
(PW2) were obtained on the memo. He identified the stone and the
parcel. He stated in his cross-examination that there was no
mention of any marks of nails on the forehead and the feet of the
deceased. The statement was recorded at about 10-11 am. Accused
Virender was not present when the statement of accused Karan was
being recorded. He denied that no statement was made by Karan. It
took about 35-40 minutes to interrogate accused Karan and record
his statement. A similar time was taken in interrogating accused
Virender and recording his statement. They went to the spot in the
official vehicle. Sanjay and Sunil met them at some distance before
the spot. They were sitting in some shop at Jharlrari. The witnesses
followed them in another vehicle. He admitted that there are two
bridges in the Sukar Khad and 30-35 shops in the Bazar. The bag
was recovered from the right side of the road. They reached Sukar
Khad at 11:30 am-12 o’clock. The spot from where the bag was
recovered was visible from the spot. He volunteered to say that the
45
Neutral Citation No. ( 2025:HHC:1647 )
bag was not visible. The shoes were recovered from the left side of
the road while coming from Bhota and were kept under some tree.
He admitted that the National Highway was about 50-60 feet wide.
It took them about 2-2:30 hours to complete the investigation. The
place where the dead body was lying was not visible from the spot.
Only one stone was lying on the spot.
43. There is nothing in the cross-examination of this
witness to show that he was making a false statement. No enmity
or motive was suggested to him, which could have led him to
depose falsely against the accused. Therefore, his testimony has to
be accepted as correct.
44. Sanjay Kumar (PW10) stated that he and Sunil Kumar
were sitting in the shop on 18.06.2016. The police came to the shop
and associated them in the investigation of the case. The police and
the accused went towards Sukar Khad. The accused, Karan, got the
vehicle stopped. The accused Karan took them towards the bushes,
which contained an Aadhaar card, identity card, passport, two
passport-size photographs, passbook and other articles. These
were put in the bag, and the bag was seized. He identified the bag
and the articles lying in it. Virender led them to a place below the
road at a distance of 15 meters and got recovered plastic shoes
46
Neutral Citation No. ( 2025:HHC:1647 )
which had a sticker of the hatch. The police put the shoes in a cloth
parcel and seized them. He identified the shoes. He stated in his
cross-examination that Sunil is running a medical store at Sukar
Khad. He admitted that there are two bridges over Sukar Khad. The
police had come from Bhota. They travelled in the vehicle of the
police in which seven persons were sitting. There were 30 shops in
Sukar Khad Bazar. The bag was got recovered from the right side of
the road while coming from Bhota at a distance of 30-40 meters
from the road. It was covered with the bushes of height 4-5 feet.
The place was not visible from the Bazaar. The shoes were on the
left side of the road while coming from Bhota.
45. He is Up Pradhan of Gram Panchayat Lodhar. There is
no reason as to why he would support the prosecution and depose
against the accused, who are residents of different districts. It is
true that there is a contradiction in his testimony regarding the
manner of visiting the spot. However, that is not sufficient to
discredit him, especially when his statement is duly supported by
the video recording played in the learned Trial Court and noticed by
the learned Trial Court in its judgment. Therefore, the learned Trial
Court had rightly relied upon his testimony.
47
Neutral Citation No. ( 2025:HHC:1647 )
46. The other witness, Sunil Kumar, was not examined by
the prosecution. However, his non-examination will not make any
difference because he would have repeated what was stated by him,
and the recovery cannot be doubted due to the non-examination of
Sunil Kumar.
47. It was submitted that the recovery was effected from an
open place, and such a recovery is meaningless. Reliance was
placed upon the judgments of Manju Nath versus State of Karnataka
(2023) SCC online SC 1421, Anil Kumar @ Shetty versus State of H.P.
2024:HHC;12440 and Boby Vs. State of Kerala (2023) LiveLaw (SC) 50
in support of his submission. It was laid down by the Hon’ble
Supreme Court in State of H.P. v. Jeet Singh, (1999) 4 SCC 370: 1999
SCC (Cri) 539: 1999 SCC OnLine SC 282 that an article may be
concealed in a place which is open and accessible to all. The
question is not whether the article was recovered from an open and
accessible place but whether it was visible to others or not. It was
observed at page 378:
“26. There is nothing in Section 27 of the Evidence Act
which renders the statement of the accused inadmissible if
recovery of the articles was made from any place which is
“open or accessible to others”. It is a fallacious notion that
when recovery of any incriminating article was made from a
place which is open or accessible to others, it would vitiate
the evidence under Section 27 of the Evidence Act. Any object
48
Neutral Citation No. ( 2025:HHC:1647 )can be concealed in places which are open or accessible to
others. For example, if the article is buried on the main
roadside or if it is concealed beneath dry leaves lying in
public places or kept hidden in a public office, the article
would remain out of the visibility of others in normal
circumstances. Until such an article is disinterred, its hidden
state will remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to any other
person. Hence, the crucial question is not whether the place
was accessible to others or not but whether it was ordinarily
visible to others. If it is not, then it is immaterial that the
concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to
in Section 27 of the Evidence Act is not the object recovered,
but the fact embraces the place from which the object is
recovered and the knowledge of the accused as to it (Pulukuri
Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC 67: 74 IA
65] ). The said ratio has received unreserved approval of this
Court in successive decisions. (Jaffar Hussain Dastagir v. State
of Maharashtra [(1969) 2 SCC 872], K. Chinnaswamy Reddy v.
State of A.P. [AIR 1962 SC 1788], Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330: 1983 SCC (Cri) 447], Shamshul
Kanwar v. State of U.P. [(1995) 4 SCC 430: 1995 SCC (Cri)
753], State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675: 1997
SCC (Cri) 1032].)
48. It was laid down by the Hon’ble Supreme Court in
Limbaji v. State of Maharashtra, (2001) 10 SCC 340: 2001 SCC OnLine
SC 1460 that merely because the recovery was effected from an
open place is not sufficient to discard the recovery and the
statement that accused had hidden the articles could be relied upon
to show the possession of the accused. It was observed:
“IV(b). [14] We are left with the evidence of recovery of the
ornaments of the deceased on the basis of the confessional
statement of the accused under Section 27 of the Evidence
49
Neutral Citation No. ( 2025:HHC:1647 )Act if the discoveries are to be believed –which ought to be.
The next two questions are whether the accused shall be
deemed to be in possession of the articles concealed at
various spots and whether such possession could be said to
be recent possession. But for the decision of this Court
in Trimbak v. State of M.P. [AIR 1954 SC 39: 1954 Cri LJ 335],
the first question need not have engaged our attention at all.
That was a case in which, at the instance of the accused, the
stolen property was recovered at a field belonging to a third
party, and the accused gave no explanation about his
knowledge of the place from which the ornaments were
taken out. The High Court, while absolving the appellant of
the charge of dacoity, convicted him under Section 411 IPC
for receiving the stolen property by applying the
presumption that he must have kept the ornaments at that
place. On appeal by the accused, this Court took the view that
there was no valid reason for convicting the appellant under
Section 411 IPC. The Court pointed out that one of the
ingredients of Section 411, namely, that the stolen property
was in the possession of the accused, was not satisfied. The
Court observed thus: (AIR p. 40, para 6)
“6. When the field from which the ornaments were
recovered was an open one and accessible to all and
sundry, it is difficult to hold positively that the
accused was in possession of these articles. The fact of
recovery by the accused is compatible with the
circumstance of somebody else having placed the
articles there and of the accused somehow acquiring
knowledge about their whereabouts, and that being
so, the fact of discovery cannot be regarded as
conclusive proof that the accused was in possession of
these articles.”
If this view is accepted, there is the danger of seasoned
criminals, who choose to keep the stolen property away from
their places of residence or premises, escaping from the
clutches of presumption, whereas the less resourceful
accused who choose to keep the stolen property within their
house or premises would be subjected to the rigour of
presumption. The purpose and efficacy of the presumption
50
Neutral Citation No. ( 2025:HHC:1647 )
under Section 114(a) will be practically lost in such an event.
We are, however, relieved of the need to invite the decision
of a larger Bench on this issue in view of the confessional
statement of the accused that they had hidden the articles at
particular places and the accused acting further and leading
the investigating officer and the panchas to the spots where
they were concealed. The memoranda of Panchnama
evidencing such statements are Exhibits 26, 28 and 30. If
such a statement of the accused insofar as the part played by
him in concealing the articles at the specified spots is
admissible under Section 27 of the Evidence Act, there can be
no doubt that the factum of possession of the articles by the
accused stands established. We have the authority of the
three-judge Bench decision of this Court in K. Chinnaswamy
Reddy v. State of A.P. [AIR 1962 SC 1788: (1963) 1 Cri LJ 8] to
hold that the statement relating to concealment is also
admissible in evidence by virtue of Section 27. In that case,
the question was formulated by Wanchoo, J., speaking for
the Court, as follows: (AIR p. 1792, para 9)
“9. Let us then turn to the question whether the
statement of the appellant to the effect that ‘he had
hidden them (the ornaments)’ and ‘would point out
the place’ where they were is wholly admissible in
evidence under Section 27 or only that part of it is
admissible where he stated that he would point out the
place but not that part where he stated that he had
hidden the ornaments.”
After referring to the well-known case of Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67: 74 IA 65], the question
was answered as follows: (AIR p. 1793, para 10)
“10. If we may respectfully say so, this case clearly
brings out what part of the statement is admissible
under Section 27. It is only that part which distinctly
relates to the discovery which is admissible, but if any
part of the statement distinctly relates to the
discovery, it will be admissible wholly, and the court
cannot say that it will excise one part of the statement
because it is of a confessional nature. Section 27
makes that part of the statement which is distinctly
51
Neutral Citation No. ( 2025:HHC:1647 )
related to the discovery admissible as a whole,
whether it be in the nature of confession or not. Now,
the statement in this case is said to be that the
appellant stated that he would show the place where
he had hidden the ornaments. The Sessions Judge had
held that part of this statement, which is to the effect
‘where he had hidden them’, is not admissible. It is
clear that if that part of the statement is excised, the
remaining statement (namely, that he would show the
place) would be completely meaningless. The whole of
this statement, in our opinion, relates distinctly to the
discovery of ornaments and is admissible under
Section 27 of the Indian Evidence Act. The words
‘where he had hidden them’ are not on par with the
words ‘with which I stabbed the deceased’ in the
example given in the judgment of the Judicial
Committee. These words (namely, where he had
hidden them) have nothing to do with the past history
of the crime and are distinctly related to the actual
discovery that took place by virtue of that statement. It
is, however, urged that in a case where the offence
consists of possession, even the words ‘where he had
hidden them’ would be inadmissible as they would
amount to an admission by the accused that he was in
possession. There are, in our opinion, two answers to
this argument. In the first place, Section 27 itself says
that where the statement distinctly relates to the
discovery, it will be admissible whether it amounts to
a confession or not. In the second place, these words
by themselves *though they may show possession of
the appellant would not prove the offence, for after
the articles have been recovered, the prosecution has
still to show that the articles recovered are connected
with the crime, i.e., in this case, the prosecution will
have to show that they are stolen property. We are
therefore of the opinion that the entire statement of
the appellant (as well as of the other accused who
stated that he had given the ornament to Bada Sab and
would have it recovered from him) would be
admissible in evidence, and the Sessions Judge was
52
Neutral Citation No. ( 2025:HHC:1647 )
wrong in ruling out part of it.” *(emphasis supplied)
In the light of this decision, we must hold that the accused
must be deemed to be in exclusive possession of the articles
concealed under the earth, though the spots at which they
were concealed may be accessible to the public. It may be
mentioned that in the Trimbak case [AIR 1954 SC 39: 1954 Cri
LJ 335], this Court did not refer to the confessional
statement, if any, made by the accused falling within the
purview of Section 27 and the effect thereof on the aspect of
possession.
49. This position was reiterated in Ibrahim Musa Chauhan v.
State of Maharashtra, 2013 SCC OnLine SC 254, wherein it was
observed:
“15. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC
370, this court dealt with the issue of recovery from a public
place and held:
“21. The conduct of the accused has some relevance
in the analysis of the whole circumstances against him.
PW 3 Santosh Singh, a member of the Panchayat hail-
ing from the same ward, said in his evidence that he
reached Jeet Singh’s house at 6.15 a.m. on hearing the
news of that tragedy and then accused Jeet Singh told
him that Sudarshana complained of pain in the liver
during the early morning hours. But when the accused
was questioned by the trial court under Section 313 of
the Code of Criminal Procedure, he denied having said
so to PW 3 and further said, for the first time, that he
and Sudarshana did not sleep in the same room but
they slept in two different rooms. Such conduct on the
part of the accused was taken into account by the Ses-
sions Court in evaluating the incriminating circum-
stance spoken to by PW 10 that they were in the same
room on the fateful night. We, too, give accord to the
aforesaid approach made by the trial court.”
16. Similarly, in State of Maharashtra v. Bharat Fakira Dhi-
war (2002) 1 SCC 622, this Court held:
53
Neutral Citation No. ( 2025:HHC:1647 )
“22. In the present case, the grinding stone was
found in tall grass. The pants and underwear were
buried. They were out of visibility of others in normal
circumstances. Until they were disinterred, at the in-
stance of the respondent, their hidden state had re-
mained unhampered. The respondent alone knew
where they were until he disclosed it. Thus, we see no
substance in this submission also.”
17. In view of the above, it cannot be accepted that a recovery
made from an open space or a public place which was acces-
sible to everyone should not be taken into consideration for
any reason. The reasoning behind it is that it will be the ac-
cused alone who will know the place where a thing is hidden.
The other persons who had access to the place would not be
aware of the fact that an accused, after the commission of an
offence, had concealed contraband material beneath the
earth or in the garbage.”
50. Similarly, it was held in Perumal Raja v. State, 2024 SCC
OnLine SC 12, that if the accused does not tell the Criminal Court
that his knowledge of the concealment was based on the
possibilities that absolve him, an inference can be drawn that the
accused had concealed those articles. It was observed:
“32. In State of Maharashtra v. Suresh (2000) 1 SCC 471, this
Court, in the facts therein, held that recovery of a dead body,
which was from the place pointed out by the accused, was a
formidable incriminating circumstance. This would, the
Court held, reveal that the dead body was concealed by the
accused unless there is material and evidence to show that
somebody else had concealed it, and this fact came to the
knowledge of the accused either because he had seen that
person concealing the dead body or was told by someone
else that the dead body was concealed at the said location.
Here, if the accused declines and does not tell the criminal
court that his knowledge of the concealment was on the
54
Neutral Citation No. ( 2025:HHC:1647 )basis of the possibilities that absolve him, the court can
presume that the dead body (or physical object, as the case
may be) was concealed by the accused himself. This is
because the person who can offer the explanation as to how
he came to know of such concealment is the accused. If the
accused chooses to refrain from telling the court as to how
else he came to know of it, the presumption is that the
concealment was by the accused himself.
33. The aforesaid view has been followed subsequently and
reiterated in Harivadan Babubhai Patel v. State of Gujarat
(2013) 7 SCC 45, Vasanta Sampat Dupare v. State of
Maharashtra (2015) 1 SCC 253, State of Maharashtra v. Damu
S/o Gopinath Shinde (2000) 6 SCC 269, and Rumi Bora
Dutta v. State of Assam (2013) 7 SCC 417.”
51. In the present case, the bag and the shoes were
concealed in the bushes and were not visible to others; hence, their
recovery cannot be discarded because they were recovered from an
open place.
52. Therefore, it is duly proved by the statements of these
witnesses that accused Karan made a disclosure statement and
recovered a bag containing an Aadhaar card, passbook, identity
card and two passport-size photographs of the deceased. These
were the personal belongings of the deceased. The accused has not
provided any explanation for the same. Homwati (PW3) and
Dwarki (PW7) stated that the deceased had left home with his
personal belongings. The recovery of the personal belongings of
the deceased at the instance of accused Karan can only lead to an
55
Neutral Citation No. ( 2025:HHC:1647 )
inference that he had taken them from the deceased. It was laid
down by the Hon’ble Supreme Court in Wasim Khan v. State of U.P.,
1956 SCC OnLine SC 52: 1956 SCR 191: 1956 CRI LJ 790: AIR 1956 SC
400 that recent and unexplained possession of the articles of the
deceased can lead to a presumption of murder. It was observed:
“7. The real question is whether the evidence in the case es-
tablishes that the appellant murdered and robbed Ram Du-
larey. The evidence is circumstantial. Before we deal with
that evidence, it is necessary to consider how far recent pos-
session of the property of a deceased, in the circumstances
clearly indicating that he had been murdered and robbed,
would suggest that not only the possessor of the property
was a thief or a receiver of stolen property, but that it also
indicated that he was guilty of a more aggravated crime
which had a connection with the theft. In the case of Em-
peror v. Sheikh Neamatulla [(1913) 17 CWN 1077], Sir Lawrence
Jenkins had the occasion to examine this question. After re-
ferring to Section 114 of the Evidence Act, he quoted the fol-
lowing passage from Wills on Circumstantial Evidence:
“the possession of stolen goods recently after the loss of
them may be indicative not merely of the offence of lar-
ceny, or of receiving with guilty knowledge, but of any
other more aggravated crime which has been connected
with theft. This particular fact of presumption commonly
forms also a material element of evidence in cases of
murder; which special application of it has often been
emphatically recognised”.
In the case of Queen-Empress v. Sami [(1890) ILR 13 Mad 426]
at p. 432, the learned Judges of the High Court observed,
“Under these circumstances, and in the absence of any ex-
planation, the presumption arises that anyone who took part
in the robbery also took part in the murder. In cases in which
murder and robbery have been shown to form parts of one
transaction, it has been held that recent and unexplained
possession of the stolen property, while it would be pre-
56
Neutral Citation No. ( 2025:HHC:1647 )
sumptive evidence against a prisoner on the charge of rob-
bery, would similarly be evidence against him on the charge
of murder. All the facts which tell against the appellant, es-
pecially his conduct indicating a consciousness of guilt,
point equally to the conclusion that he was guilty as well of
the murder as of the robbery………………”. In the case of Em-
peror v. Chintamoni Shahu [AIR 1930 Cal 379], the opinion was
expressed that “the possession of stolen goods recently after
the loss of them may be indicative not merely of the offence
of larceny or of receiving with guilty knowledge but of any
other more aggravated crime which has been connected with
the theft; this particular fact of presumption forms also a
material element of evidence in the case of murder”. A simi-
lar view seems to have been taken in the case of In re Guli
Venkataswamy [AIR 1950 Mad 309] as well as in the case
of Ramprashad Makundram Rajput v. The Crown [AIR 1949
Nag 277].
53. This position was reiterated in Mohan Lal v. Ajit Singh
(1978) 3 SCC 279: 1978 SCC (Cri) 378: 1978 SCC OnLine SC 145,
wherein it was observed at page 298:
“49. The recovery of the incriminating articles in pursuance
of the respondent’s information is an important piece of ev-
idence against him. As has been held by this Court in Baiju
alias Bharosa v. State of Madhya Pradesh [(1978) 1 SCC 588:
1978 SCC (Cri) 142], the question whether a presumption
should be drawn against the respondent under illustration
(a) of Section 114 of the Evidence Act is a matter which de-
pends on the evidence and the circumstances of each case.
The nature of the recovered articles, the manner of their ac-
quisition by the owner, the nature of the evidence about
their identification, the manner in which the articles were
dealt with by the accused, the place and the circumstances of
their recovery, the length of the intervening period and the
ability or otherwise of the accused to explain the recovery,
are some of those circumstances, as the ring Ex. P-1 was
made of gold and bore the initials of the deceased, and the
goldsmith Kartar Singh (PW 17) had established its identity,
57
Neutral Citation No. ( 2025:HHC:1647 )
there could be no doubt whatsoever that it belonged to the
deceased. It is also a matter of great significance that it was
found tied in a handkerchief along with the other two highly
incriminating articles, namely, the finger-marked currency
note, Ex. P-10 and the respondent’s purse Ex. P-9 about
whose identity there can possibly be no reason for any
doubt. The respondent knew that he would be suspected of
the crime because the deceased was last seen in his com-
pany, and the fact that he buried the articles near the water
lift in the middle of the way leading from Khankhanwali to
his village Roranwali shows that he wanted the articles to lie
there until he could feel reassured enough to dig them out.
It, however, so happened that he was suspected from the
very beginning, was arrested within four days and gave the
information within the next two days, which led to the dis-
covery of an important fact within the meaning of Section 27
of the Evidence Act. It must, therefore, be held that the in-
criminating articles were acquired by the respondent at one
and the same time and that it was he and no one else who
had robbed the deceased of the money and the ring and had
hidden them at a place and in a manner which was known to
him. Then there is the further fact that the respondent was
unable to explain his possession of the ring and the money
and did not even attempt to do so. The currency note Ex. P-
10 was found on the top of the bundle of currency notes of
the value of Rs 4142, and we have given our reasons for
holding that it bore the respondent’s fingerprint. It will be
recalled that the deceased was undoubtedly in possession of
currency notes because of the realisations he had made from
the debtors of the Cooperative Society only a little while ear-
lier and the fact that the respondent hid the notes after tying
them in a handkerchief, shows that he knew that their pos-
session with him would be incriminating and unexplainable.
The intervening period between the loss of the money and
the ring by the deceased and their recovery was not more
than six days, which was quite a short period. All these facts
were not only proof of robbery but were presumptive evi-
dence of the charge of murder as well. Reference in this con-
nection may be made to the decisions in Wasim Khan v. State
of Uttar Pradesh [AIR 1956 SC 400 : (1956) SCR 191: 1956 Cri LJ
58
Neutral Citation No. ( 2025:HHC:1647 )
790], Tulsiram Kanu v. State [1951 SCC 92: AIR 1954 SC 1: 1954
Cri LJ 225: 1953 SCJ 612], Sunderlal v. State of Madhya
Pradesh [(1952) 2 SCC 464: AIR 1954 SC 28: 1954 Cri LJ
257], Alisher v. State of Uttar Pradesh [(1974) 4 SCC 254: 1974
SCC (Cri) 416] and Baiju alias Bharosa v. State of Madhya
Pradesh.
54. Yashwant Singh (PW2) stated that the accused
identified the spot on 18.06.2016. Accused Karan got recovered a
stone from the place near the path. The police seized the stone in
his presence. He identified the stone in the Court. He stated in his
cross-examination that the dead body was lying within the
jurisdiction of his Panchayat, and it was not visible from the
bridge. The stone was lying at a distance of 8-10 meters from the
dead body and was seized on 18.06.2016. He was called by the
police to the bridge. The police had reached 2-4 minutes before
him. Only one stone was lying at the spot from where the stone
(Ext.P8) was lifted. He denied that he was making a false
statement.
55. He is a President of Gram Panchayat Saur and an
independent person. He has no reason to depose against the
accused or to support the prosecution. Therefore, his testimony is
to be accepted as correct.
56. Anil Kumar (PW1) stated in his cross-examination that
some stones were present beneath the bridge. Yashwant Singh
59
Neutral Citation No. ( 2025:HHC:1647 )
(PW2) stated in his cross-examination that the stone (Ext.P8) was
lying at a distance of about 8-10 meters from the dead body. No
stones were lying on the spot where the dead body was lying. It was
submitted that there is a discrepancy regarding the number of
stones lying on the spot, which would make the prosecution case
suspect. This submission would have been material had the stone
been recovered from a place where the dead body was lying. As per
the statement of Yashwant Singh (PW2), the stone was lying at a
distance of 8-10 meters. Similarly, the site plan (Ext.PW34/B)
shows that the dead body was found on the western side of the
bridge, and the stone was lying towards the eastern side of the
bridge. Therefore, the stone was not recovered from the place near
the dead body. Hence, the discrepancy regarding the number of
stones near the dead body will not be material.
57. The accused, Karan, led the police to a place and got
recovered the stone (Ext.P8). This stone was sent to SFSL, and as
per the result of analysis (Ext.PW37/B), fresh scratch marks were
present on the stone, and it could have been used to fasten the nail.
58. It was submitted that the stone was lying in the open
and was not even concealed; therefore, its recovery will not help
the prosecution. This submission cannot be accepted. In the
60
Neutral Citation No. ( 2025:HHC:1647 )
present case, the stone was lying in an open place, but without it
being pointed out, nobody could decipher that it was used as a
weapon of offence. It has no telltale marks. No blood stains were
found in it. When it was analysed in the laboratory, fresh stretch
marks were found in it, which could have been caused by using it
for embedding the nail. Therefore, even if it was lying in an open
place accessible to all, it could have been linked to the commission
of crime by someone pointing to it or identifying it. Thus, the
judgments cited at the bar that the recovery effected from an open
place accessible to all is meaningless will not apply to the present
case. Such a proposition can be applied to something which does
not require any pointing to link it with the commission of a crime.
For instance, when the blood-stained stone or clothes are lying in
an open place, anybody can link them with the commission of a
crime, and since they are lying in the open place accessible to all,
they do not require any pointing by the accused or any other
person to connect them with the commission of a crime. This is not
the situation in the present case.
59. It was submitted that no disclosure statement of the
accused was recorded before the stone was recovered by the police;
therefore, the recovery of the stone will not help the prosecution.
61
Neutral Citation No. ( 2025:HHC:1647 )
This submission is not acceptable. It was laid down by Hon’ble
Supreme Court in Ghanashyam Das v. State of Assam, (2005) 13 SCC
387: (2006) 2 SCC (Cri) 331: 2005 SCC OnLine SC 1098 that the
recovery of weapon of offence at the instance of the accused is
admissible under section 8 of Indian Evidence Act when it is not
preceded by a disclosure statement. It was observed at page 388:
“5. Another incriminating circumstance which corroborates
the case of the prosecution is that the appellant led the IO
PW 12 to Kharbhanga riverside and pointed out the place
where he had thrown away the khukri. According to the evi-
dence of PW 12, the IO, and PW 6, the khukri was recovered
from the river with the help of a diver. Though both the
courts have eschewed this circumstance from consideration
on the ground that no information was recorded by PW 12
the IO so as to attract Section 27 of the Evidence Act, we are
of the view that the evidence of PW 12 and PW 6 to the effect
that the accused led them to the spot and pointed out the
place where the khukri was thrown, which fact stands con-
firmed by its recovery, can be looked into to throw light on
the conduct of the accused under Section 8 of the Evidence
Act vide H.P. Admn. v. Om Prakash [(1972) 1 SCC 249: 1972 SCC
(Cri) 88].”
60. This position was reiterated in A.N. Venkatesh v. State of
Karnataka, (2005) 7 SCC 714: 2005 SCC (Cri) 1938: 2005 SCC OnLine
SC 1156 wherein it was observed at page 721:
“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant if such conduct influences or
is influenced by any fact in issue or relevant fact. The evi-
dence of the circumstance, simpliciter, that the accused
pointed out to the police officer, the place where the dead
body of the kidnapped boy was found and on their pointing
62
Neutral Citation No. ( 2025:HHC:1647 )out the body was exhumed, would be admissible as conduct
under Section 8 irrespective of the fact whether the state-
ment made by the accused contemporaneously with or an-
tecedent to such conduct falls within the purview of Section
27 or not as held by this Court in Prakash Chand v. State
(Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri) 656: AIR 1979
SC 400]. Even if we hold that the disclosure statement made
by the accused-appellants (Exts. P-15 and P-16) is not ad-
missible under Section 27 of the Evidence Act, still it is rele-
vant under Section 8. The evidence of the investigating offi-
cer and PWs 1, 2, 7 and PW 4, the spot mahazar witness that
the accused had taken them to the spot and pointed out the
place where the dead body was buried, is an admissible piece
of evidence under Section 8 as the conduct of the accused.
Presence of A-1 and A-2 at a place where ransom demand
was to be fulfilled and their action of fleeing on spotting the
police party is a relevant circumstance and are admissible
under Section 8 of the Evidence Act.”
61. A similar view was taken in Sampat Dupare v. State of
Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624: 2014 SCC
OnLine SC 942 wherein it was observed at page 269:
“28. Additionally, another aspect can also be taken note of. The
fact that the appellant had led the police officer to find out the
spot where the crime was committed and the tap where he
washed the clothes eloquently speak of his conduct as the same
is admissible in evidence to establish his conduct. In this con-
text, we may refer with profit to the authority in Prakash
Chand v. State (Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri) 656]
wherein the Court, after referring to the decision in H.P.
Admn. v. Om Prakash [(1972) 1 SCC 249: 1972 SCC (Cri) 88] held
thus : (Prakash Chand case [(1979) 3 SCC 90: 1979 SCC (Cri) 656],
SCC p. 95, para 8)
“8. … There is a clear distinction between the conduct of a
person against whom an offence is alleged, which is admis-
sible under Section 8 of the Evidence Act if such conduct is
influenced by any fact in issue or relevant fact and the state-
ment made to a police officer in the course of an investiga-
63
Neutral Citation No. ( 2025:HHC:1647 )
tion which is hit by Section 162 of the Criminal Procedure
Code. What is excluded by Section 162 of the Criminal Proce-
dure Code is the statement made to a police officer in the
course of investigation and not the evidence relating to the
conduct of an accused person (not amounting to a state-
ment) when confronted or questioned by a police officer
during the course of an investigation. For example, the evi-
dence of the circumstance, simpliciter, that an accused per-
son led a police officer and pointed out the place where
stolen articles or weapons which might have been used in
the commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence Act,
irrespective of whether any statement by the accused con-
temporaneously with or antecedent to such conduct falls
within the purview of Section 27 of the Evidence Act.”
29. In A.N. Venkatesh v. State of Karnataka [(2005) 7 SCC 714:
2005 SCC (Cri) 1938], it has been ruled that : (SCC p. 721, para 9)
“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant if such conduct influences or
is influenced by any fact in issue or relevant fact. The evi-
dence of the circumstance, simpliciter, that the accused
pointed out to the police officer, the place where the dead
body of the kidnapped boy was found and on their pointing
out the body was exhumed, would be admissible as conduct
under Section 8 irrespective of the fact whether the state-
ment made by the accused contemporaneously with or an-
tecedent to such conduct falls within the purview of Section
27 or not as held by this Court in Prakash Chand v. State
(Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri) 656]. Even if we
hold that the disclosure statement made by the appellants-
accused (Exts. P-15 and P-16) is not admissible under Sec-
tion 27 of the Evidence Act, still it is relevant under Section
8. The evidence of the investigating officer and PWs 1, 2, 7
and PW 4, the spot mahazar witness that the accused had
taken them to the spot and pointed out the place where the
dead body was buried, is an admissible piece of evidence un-
der Section 8 as the conduct of the accused. Presence of A-1
and A-2 at a place where ransom demand was to be fulfilled
and their action of fleeing on spotting the police party is a
64
Neutral Citation No. ( 2025:HHC:1647 )
relevant circumstance and are admissible under Section 8 of
the Evidence Act.”
62. A similar view was taken in Sambhubhai Raisangbhai
Padhiyar v. State of Gujarat, 2024 SCC OnLine SC 3769.
63. Thus, the recovery will not become inadmissible
because the police had not recorded the disclosure statement of the
accused.
64. It was submitted that an entry in the Malkhana register
(Ext.PW29/C) does not show that the stone was sent to the FSL,
and the link evidence is missing. This submission cannot be
accepted because, as per the report of analysis (Ext.PW37/A), the
stone was received in the laboratory through LC Prita Devi, and the
seals on the stone were found to be intact. These were tallied with
the specimen seals sent with the docket. Therefore, the non-
mentioning of the fact that the stone was sent to RFSL in the
Malkahana register will not make the prosecution case suspect.
There is no reason with the RFSL to record that the stone was
received if it was not so received or that the seals were intact if they
were not so.
65. Accused Virender got recovered the shoes. However,
there is no evidence that the shoes belonged to the deceased. The
prosecution cannot rely upon the statement recorded under
65
Neutral Citation No. ( 2025:HHC:1647 )
Section 27 of the Indian Evidence Act to connect them with the
deceased because the statement does not lead to the discovery of
any such fact. It was laid down by the Hon’ble Supreme Court in
Prabhoo v. State of U.P., 1962 SCC OnLine SC 383: (1963) 2 SCR 881:
AIR 1963 SC 1113 : (1963) 2 Cri LJ 182 that a statement under Section
27 of Indian Evidence Act cannot be used to connect the blood-
stained clothes to the accused. It was observed:
“9…..We are, therefore, of the opinion that the courts below
were wrong in admitting in evidence the alleged statement
of the appellant that the axe had been used to commit
murder or the statement that the bloodstained shirt and
dhoti were his. If these statements are excluded, and we
think that they must be excluded, then the only evidence
which remains is that the appellant produced from the
house a bloodstained axe and some bloodstained clothes.
The prosecution gave no evidence to establish whether the
axe belonged to the appellant or the bloodstained clothes
were his.”
66. This judgment was followed by this Court in Harbans
Lal v. State, 1965 SCC OnLine HP 21: AIR 1967 HP 10: 1967 Cri LJ 62 at
it was held at page 13:
“15…As has been rightly pointed out by the learned Sessions
Judge, there is no evidence that any of the shirts discovered
belonged to the appellant. Mirchu Ram had no doubt, stated
in Ex. PH, that one of the shirts belonged to the appellant.
But that statement was not admissible in evidence as it did
not relate distinctly to the discovery of the shirts within the
meaning of section 27, Evidence Act. It was held, in Prab-
hoo v. State of Uttar Pradesh, AIR 1963 SC 1113, that a state-
ment made by an accused that the blood-stained shirt and
66
Neutral Citation No. ( 2025:HHC:1647 )dhoti were his was not admissible in evidence under section
27 Evidence Act. The discovery of the shirts Exs. P. 16 and P.
16, all the instances of Mirchu Ram, could not be used to
corroborate the confessional statement Ex. P.W. 12/C.”
67. Therefore, the recovery made at the instance of accused
Virender Singh will not connect him with the commission of crime.
68. SI Chhota Ram (PW36) stated that accused Karan made
a disclosure statement (Ext.PW25/A) on 19.06.2016 that he had
concealed the clothes which he was wearing on the date of the
occurrence in the hut of his father, which he could get recovered.
The accused got the clothes recovered. The clothes were sent to
SFSL and as per the report (Ext.PW34/G), Blood of group ‘AB’ was
detected on the pants of accused Karan Singh. The report of
analysis (Ext.PW37/C) shows that the DNA profile obtained from
the pant of accused Karan Singh did not match with the blood
sample of the deceased or the tooth of the deceased. Therefore, the
blood on the clothes recovered at the instance of accused Karan
was not connected to the deceased, and even if the recovery of the
clothes at the instance of accused Karan is believed, the same does
not connect the accused with the commission of crime.
69. Reliance was also placed upon the identification of the
place by accused Karan of the place where the dead body was
thrown. However, this place was already known to the police
67
Neutral Citation No. ( 2025:HHC:1647 )
because the dead body was recovered by the police before the
accused had made the statement. The fact also discovered by the
police cannot be re-discovered by taking recourse to Section 27 of
the Indian Evidence Act. It was laid down by the Hon’ble Supreme
Court in Thimma and Thimma Raju v. State of Mysore, (1970) 2 SCC
105: 1970 SCC (Cri) 320 that where the police had discovered some
fact from other sources, it cannot be re-discovered at the instance
of the accused. It was observed at page 112:
“10. Reliance on behalf of the prosecution was also placed on
the information given by the appellant, which led to the
discovery of the dead body and other articles found at the
spot. It was contended that the information received from
him related distinctly to the facts discovered and, therefore,
the statement conveying the information was admissible in
evidence under Section 27 of the Indian Evidence Act. This
information, it was argued, also lends support to the
appellant’s guilt. It appears to us that when PW 4 was
suspected of complicity in this offence, he would, in all
probability, have disclosed to the police the existence of the
dead body and the other articles at the place where they were
actually found. Once a fact is discovered from other sources,
there can be no fresh discovery even if relevant information is
extracted from the accused, and courts have to be watchful
against the ingenuity of the investigating officer in this respect
so that the protection afforded by the wholesome provisions of
Sections 25 and 26 of the Indian Evidence Act is not whittled
down by mere manipulation of the record of case diary. It
would, in the circumstances, be somewhat unsafe to rely on
this information to prove the appellant’s guilt. We are
accordingly disinclined to take into consideration this
statement.” (Emphasis supplied)
68
Neutral Citation No. ( 2025:HHC:1647 )
70. It was laid down by the Hon’ble Supreme Court in
Vijender v. State of Delhi, (1997) 6 SCC 171: 1997 SCC (Cri) 857 that
where the fact was within the knowledge of the police, it cannot be
discovered at the instance of the accused. It was observed at page
179:
“17. Another elementary statutory breach which we notice in
recording the evidence of the above witnesses is that of
Section 27 of the Evidence Act. Evidence was led through the
above three police witnesses that, in consequence of
information received from the three appellants on 30-6-
1992, they discovered the place where the dead body of
Khurshid was thrown. As already noticed, the dead body of
Khurshid was recovered on 27-6-1992, and therefore, the
question of discovery of the place where it was thrown
thereafter could not arise. Under Section 27 of the Evidence
Act, if an information given by the accused leads to the
discovery of a fact which is the direct outcome of such
information, then only it would be evidence, but when the
fact has already been discovered, as in the instant case —
evidence could not be led in respect thereof.”
71. A similar view was taken in Allarakha Habib Memon Etc.
v. State of Gujarat, 2024 SCC OnLine SC 1910, wherein it was
observed:
“41. We find that these so-called confessions are ex-
facie inadmissible in evidence for the simple reason that the
accused persons were presented at the hospital by the police
officers after having been arrested in the present case. As
such, the notings made by the Medical Officer, Dr.
Arvindbhai (PW-2), in the injury reports of Mohmedfaruk @
Palak and Amin @ Lalo would be clearly hit by Section 26 of
the Indian Evidence Act, 1872 (hereinafter being referred to
as ‘Evidence Act‘). As a consequence, we are not inclined to
69
Neutral Citation No. ( 2025:HHC:1647 )accept the said admissions of the accused as incriminating
pieces of evidence relevant under Section 21 of the Evidence
Act. The circumstance regarding the identification of the place
of incident at the instance of the accused is also inadmissible
because the crime scene was already known to the police, and
no new fact was discovered in pursuance of the disclosure
statements.” (Emphasis supplied)
72. Therefore, no reliance can be placed upon pointing out
the place from where the dead body was thrown.
73. SI Chhotta Ram (PW36) stated that accused Virender
made a disclosure statement (Ext.PW25/B) that he had concealed
his clothes, mobile and voter card of deceased Prem Raj in the hut
of his father at Jhalowal, Hoshiarpur, which he could get recovered.
He went to Jhalowal, where the accused identified the hut of his
father and got recovered one mobile phone and voter card of Prem
Raj, which were seized vide memo (Ext.PW25/F). The accused,
Virender, also got recovered his clothes, which were seized by the
police. The process was videographed by the police. He denied in
his cross-examination that no recovery was effected at the
instance of the accused at Badala and Jhalowal. A denied
suggestion does not amount to any proof and is not sufficient to
discard his testimony.
74. HHC Pawan Kumar (PW35) stated that accused Virender
took them to Khanoor, where Kundan Singh (PW13) was associated
70
Neutral Citation No. ( 2025:HHC:1647 )
with the investigation. The accused took them to hut No.6, from
where he got recovered a Pant and a T-shirt. He also got recovered
one mobile phone and the voter card of Prem Raj kept in a black
poly pack. These were seized by the police. He stated in his cross-
examination that the disclosure statement was recorded in the
presence of HHC Kewal Singh (PW25) and HC Surinder Kumar
(PW19). He denied that no statements were recorded. 15-20
persons were present in the huts of the accused when they visited
their huts. He denied that no recovery was effected from the huts.
75. Nothing was suggested to this witness as to why he
would make a false statement. His testimony is duly corroborated
by the statement of SI Chhota Ram (PW36) and has to be accepted
as correct.
76. Daljeet Singh (PW12) did not support the prosecution
case. He stated that the police visited Badla, Tehsil Garhshankar,
District Hoshiarpur, Punjab. The police asked him to put his
signatures, and he put the signatures on the recovery memo.
Nothing was recovered in his presence. He admitted his signatures
on the memo. He admitted that he has studied up to 10+2. He
admitted that Parmeshwari, the father of accused Karan, was well
known to him. He admitted that Karan was known to him.
71
Neutral Citation No. ( 2025:HHC:1647 )
77. The cross-examination of this witness shows that he is
an illiterate person and has not assigned any reason to put the
signatures at the instance of the police. He is known to the accused
and has a reason to support him. Therefore, his testimony cannot
be used to discard the prosecution case.
78. Kundan Singh (PW13) did not support the prosecution
case. He stated that police visited the brick kiln in the village of
Khanoor and recovered some clothes. The police asked them to
become a witness; however, the clothes were not recovered in his
presence. He was permitted to be cross-examined. He admitted
that police and accused Virender had visited Bricklin on 19.06.2016.
The accused Virender, got a recovered a jean, T-shirt from the
kiosk kept in hut No.6. He denied that the accused got recovered
the mobile and voter card of Prem Raj kept in black polythene. He
denied that police seized the mobile and the voter ID. He admitted
his signatures on the memo. He refused to identify the clothes and
other articles. He admitted that he had studied up to 10+2, and the
document has to be signed after reading it. He did not assign any
reason why he had put the signature on the memo without reading
it.
72
Neutral Citation No. ( 2025:HHC:1647 )
79. The cross-examination of this witness also shows that
he had admitted his signatures on the recovery memo. He could not
provide any explanation for putting his signatures, which shows
that he is concealing the truth from the Court, and his testimony
cannot be used to discard the prosecution case.
80. It was submitted that the recovery of clothes and
articles from the hut was improbable as no one would keep the
articles in the hut after committing the murder. This submission is
not acceptable. It is difficult to decipher the working of a person’s
mind. The mobile phone was a valuable article, and accused could
have kept it for subsequent use. The recovery has been proved by
the satisfactory evidence and cannot be discarded merely because
of conjectures and surmises.
81. It was submitted that the motive in the murder was not
proved as Homwati had turned hostile. The motive was one link in
the change of circumstances and even if this link is not established
the other links are duly established. Therefore no advantage can be
derived from the fact that motive has not been proved.
82. The recovery of the mobile phone and the voter ID card
of the deceased Prem Raj from the hut of the accused, Virender,
would connect him with the commission of the crime. Further,
73
Neutral Citation No. ( 2025:HHC:1647 )
accused Virender was with accused Karan in the fast-food shop of
Parvesh.
83. It was submitted that the ownership of the huts has not
been proved. Therefore, the recoveries effected from the hut will
not implicate the accused. Reliance was placed upon Mani v. State
of T.N., (2009) 17 SCC 273 : (2011) 1 SCC (Cri) 1001: 2008 SCC OnLine
SC 75 in support of this submission. This submission will not help
the defence. The fact that the accused had pointed out the hut and
got the articles recovered from it shows the knowledge of the
accused regarding the presence of the articles in the hut.
Therefore, the ownership of the hut would become immaterial in
the present case. In Mani (supra), the ownership of the hut was
important because the bloodstains were found in it, which is not
the case here. Hence, no advantage can be derived from this
judgment.
84. It was submitted that the police had not associated
independent witnesses with the recovery, and the same cannot be
relied upon. This submission is not acceptable. It was laid down by
the Hon’ble Supreme Court in State, Govt. of NCT of Delhi v. Sunil,
(2001) 1 SCC 652: 2001 SCC (Cri) 248: 2000 SCC OnLine SC 1667 that
the statement under Section 27 of Indian Evidence Act is not
74
Neutral Citation No. ( 2025:HHC:1647 )
required to be witnessed by two independent witnesses. It was
observed at page 661:
“19. In this context, we may point out that there is no re-
quirement, either under Section 27 of the Evidence Act or
under Section 161 of the Code of Criminal Procedure, to ob-
tain the signature of independent witnesses on the record in
which the statement of an accused is written. The legal obli-
gation to call independent and respectable inhabitants of the
locality to attend and witness the exercise made by the po-
lice is cast on the police officer when searches are made un-
der Chapter VII of the Code. Section 100(5) of the Code re-
quires that such search shall be made in their presence and a
list of all things seized in the course of such search and of
the places in which they are respectively found shall be pre-
pared by such officer or other person “and signed by such
witnesses”. It must be remembered that a search is made to
find out a thing or document about which the searching offi-
cer has no prior idea as to where the thing or document is
kept. He prowls for it either on reasonable suspicion or on
some guesswork that it could possibly be ferreted out in such
prowling. It is a stark reality that during searches, the team
which conducts the search would have to meddle with lots of
other articles and documents also, and in such a process,
many such articles or documents are likely to be displaced or
even strewn helter-skelter. The legislative idea in insisting
on such searches to be made in the presence of two indepen-
dent inhabitants of the locality is to ensure the safety of all
such articles meddled with and to protect the rights of the
persons entitled thereto. But, recovery of an object pursuant
to the information supplied by an accused in custody is dif-
ferent from the searching endeavour envisaged in Chapter
VII of the Code. This Court has indicated the difference be-
tween the two processes in the Transport Commr., A.P., Hy-
derabad v. S. Sardar Ali [(1983) 4 SCC 245: 1983 SCC (Cri) 827:
AIR 1983 SC 1225]. The following observations of Chinnappa
Reddy, J. can be used to support the said legal proposition
(SCC p. 254, para 8)
75
Neutral Citation No. ( 2025:HHC:1647 )“Section 100 of the Criminal Procedure Code, to which
reference was made by the counsel, deals with searches
and not seizures. In the very nature of things, when
property is seized and not recovered during a search, it is
not possible to comply with the provisions of sub-sec-
tions (4) and (5) of Section 100 of the Criminal Procedure
Code. In the case of a seizure under the Motor Vehicles
Act, there is no provision for preparing a list of the things
seized in the course of the seizure for the obvious reason
that all those things are seized not separately but as part
of the vehicle itself.”
20. Hence, it is a fallacious impression that when recovery is
effected pursuant to any statement made by the accused, the
document prepared by the investigating officer contempo-
raneous with such recovery must necessarily be attested by
the independent witnesses. Of course, if any such statement
leads to the recovery of any article, it is open to the investi-
gating officer to take the signature of any person present at
that time on the document prepared for such recovery. But if
no witness was present 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
police officer must be treated as tainted and the recovery ev-
idence unreliable. The court has to consider the evidence of
the investigating officer who was deposed to the fact of re-
covery based on the statement elicited from the accused on
its own worth.
21. We feel that it is an archaic notion that the actions of the
police officer should be approached with initial distrust. We
are aware that such a notion was lavishly entertained during
the British period, and policemen also knew about it. Its
hangover persisted during post-independent years, but it is
time now to start placing at least initial trust in the actions
and the documents made by the police. At any rate, the court
cannot start with the presumption that the police records
are untrustworthy. As a proposition of law, the presumption
should be the other way around. That official acts of the po-
lice have been regularly performed is a wise principle of pre-
sumption and recognised even by the legislature. Hence,
when a police officer gives evidence in court that a certain
76
Neutral Citation No. ( 2025:HHC:1647 )
article was recovered by him on the strength of the state-
ment made by the accused, it is open to the court to believe
the version to be correct if it is not otherwise shown to be
unreliable. It is for the accused, through cross-examination
of witnesses or through any other materials, to show that
the evidence of the police officer is either unreliable or at
least unsafe to be acted upon in a particular case. If the court
has any good reason to suspect the truthfulness of such
records of the police, the court could certainly take into ac-
count the fact that no other independent person was present
at the time of recovery. But it is not a legally approvable pro-
cedure to presume the police action as unreliable to start
with, nor to jettison such action merely for the reason that
police did not collect signatures of independent persons in
the documents made contemporaneous with such actions.
22. In this case, the mere absence of an independent witness
when PW 17 recorded the statement of A-2 Ramesh, and the
knickers were recovered pursuant to the said statement is
not sufficient ground to discard the evidence under Section
27 of the Evidence Act.”
85. This position was reiterated in Praveen Kumar v. State of
Karnataka, (2003) 12 SCC 199: 2003 SCC OnLine SC 1139, wherein it
was observed at page 210:
“21. Section 27 does not lay down that the statement made
to a police officer should always be in the presence of inde-
pendent witnesses. Normally, in cases where the evidence
led by the prosecution as to a fact depends solely on the po-
lice witnesses, the courts seek corroboration as a matter of
caution and not as a matter of rule. Thus, it is only a rule of
prudence which makes the court to seek corroboration from
an independent source in such cases while assessing the evi-
dence of the police. But in cases where the court is satisfied
that the evidence of the police can be independently relied
upon, then in such cases, there is no prohibition in law that
the same cannot be accepted without independent corrobo-
ration. In the instant case, nothing is brought on record to
show why the evidence of PW 33 IO should be disbelieved in
77
Neutral Citation No. ( 2025:HHC:1647 )regard to the statement made by the accused as per Ext. P-
35. Therefore, the argument that the statement of the appel-
lant as per Ext. P-35 should be rejected because the same is
not made in the presence of an independent witness has to
be rejected.”
86. A similar view was taken in Mukesh v. State (NCT of
Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673: 2017 SCC OnLine SC
533 wherein it was observed at page 228:
“448. While the prosecution has been able to prove the re-
coveries made at the behest of the accused, the defence
counsel repeatedly argued in favour of discarding the recov-
eries made on the ground that no independent witnesses
were examined while effecting such recoveries and prepar-
ing seizure memos.
449. The above contention of the defence counsel urges one
to look into the specifics of Section 27 of the Evidence Act. As
a matter of fact, the need of examining independent wit-
nesses while making recoveries pursuant to the disclosure
statement of the accused is a rule of caution evolved by the
Judiciary, which aims at protecting the rights of the accused
by ensuring transparency and credibility in the investigation
of a criminal case. In the present case, PW 80 SI Pratibha
Sharma has deposed in her cross-examination that no inde-
pendent person had agreed to become a witness, and in the
light of such a statement, there is no reason for the courts to
doubt the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of
the accused, a seizure memo prepared by the investigating
officer need not mandatorily be attested by independent
witnesses. In State (Govt. of NCT of Delhi) v. Sunil [State (Govt.
of NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248],
it was held that non-attestation of seizure memo by inde-
pendent witnesses cannot be a ground to disbelieve recovery
of articles’ list consequent upon the statement of the ac-
cused. It was further held that there was no requirement, ei-
ther under Section 27 of the Evidence Act or under Section
161 CrPC, to obtain signatures of independent witnesses. If
78
Neutral Citation No. ( 2025:HHC:1647 )the version of the police is not shown to be unreliable, there
is no reason to doubt the version of the police regarding ar-
rest and contents of the seizure memos.”
87. Thus, it was duly proved on record that a call was made
to the accused, Karan, at the instance of his wife, Homwati (PW3),
by her brother, and he and accused Virender cut short their visit
and went to their home. The accused were seen together with the
deceased on 12.06.2016 in Saini Fast Food Hotel at Village Taka.
The location of the mobile phone of the accused, Karan, was found
near the place of the incident on the intervening nights of
12.06.2016 and 13.06.2016. The accused, Karan, got recovered the
bag of the deceased from the bushes. Accused Virender got
recovered the mobile phone and the voter ID card of Prem Raj from
the hut of his father. Accused Karan got recovered a stone which
could have been used to embed the nail. Prem Raj had met with a
homicidal death. All these circumstances, taken together, point
towards the guilt of the accused. No explanation was provided by
the accused, which would be in consonance with their innocence. It
was said by Glanville Williams, in his article “The Mathematics of
Proof II”, Criminal Law Review (Sweet & Maxwell, 1979) 340, that
separate pieces of evidence can provide confirmation of each other.
It was observed at page 342:
79
Neutral Citation No. ( 2025:HHC:1647 )
“‘The simple multiplication rule does not apply if the sepa-
rate pieces of evidence are dependent. Two events are de-
pendent when they tend to occur together, and the evidence
of such events may also be said to be dependent. In a crimi-
nal case, different pieces of evidence directed to establishing
that the defendant did the prohibited act with the specified
state of mind are generally dependent. A juror may feel
doubt whether to credit an alleged confession and doubt
whether to infer guilt from the fact that the defendant fled
from justice. But since it is generally guilty rather than in-
nocent people who make confessions and guilty rather than
innocent people who run away, the two doubts are not to be
multiplied together. The one piece of evidence may confirm
the other.’
88. This article was cited with approval by the Hon’ble
Supreme Court in Suresh Thipmppa Shetty v. State of Maharashtra,
2023 SCC OnLine SC 1038
89. Therefore, the learned Trial Court had rightly held that
the accused had murdered the deceased in furtherance of their
common intention.
90. The accused had put the dead body on fire to scream
themselves from punishment. It was laid down by the Hon’ble
Supreme Court in Dinesh Kumar Kalidas Patel v. State of Gujarat,
(2018) 3 SCC 313: (2018) 2 SCC (Cri) 55: 2018 SCC OnLine SC 110 to
hold that the accused destroying the evidence to scream himself
from the punishment can be held liable for the commission of an
80
Neutral Citation No. ( 2025:HHC:1647 )offence punishable under Section 201 of IPC. It was observed at
page 315:
“5. Several contentions have been raised on merits. That
apart, the appellant has also raised a question of law as to
whether the conviction under Section 201 IPC could have
been maintained while acquitting him of the main offence
under Section 498-A IPC. The learned counsel have placed
reliance on the decisions of this Court in Palvinder
Kaur v. State of Punjab [Palvinder Kaur v. State of Punjab,
(1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], Kalawati
and Ranjit Singh v. State of H.P. [Kalawati and Ranjit
Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri
LJ 668], and Suleman Rehiman Mulani v. State of Maharash-
tra[Suleman Rehiman Mulani v. State of Maharashtra, AIR
1968 SC 829: 1968 Cri LJ 1013].
6. In Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952)
2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], this Court held as
follows: (AIR p. 356, para 14)
“14. In order to establish the charge under Section 201 of
the Penal Code, 1860, it is essential to prove that an of-
fence has been committed–mere suspicion that it has
been committed is not sufficient–that the accused knew
or had reason to believe that such offence had been com-
mitted and with the requisite knowledge and with the in-
tent to screen the offender from legal punishment causes
the evidence thereof to disappear or gives false informa-
tion respecting such offences knowing or having reason
to believe the same to be false.”
The conviction in this case was ultimately set aside on the
aforementioned legal position and the facts.
7. The Constitution Bench decision in Kalawati [Kalawati
and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC
131: 1953 Cri LJ 668] may not be of much assistance in this
case since the facts are completely different. The co-accused
was convicted under Section 302 IPC for the main offence,
and in the peculiar facts and circumstances of that case, this
Court deemed it fit to convict Kalawati only under Section
201 IPC.
81
Neutral Citation No. ( 2025:HHC:1647 )
8. Relying on Palvinder Kaur [Palvinder Kaur v. State of Pun-
jab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], this
Court in Suleman Rehiman [Suleman Rehiman Mulani v. State
of Maharashtra, AIR 1968 SC 829: 1968 Cri LJ 1013], made the
following observation: (Suleman Rehiman case [Suleman Re-
himan Mulani v. State of Maharashtra, AIR 1968 SC 829: 1968
Cri LJ 1013], AIR p. 830, para 6)
“6. The conviction of Appellant 2 under Section 201 IPC
depends on the sustainability of the conviction of Appel-
lant 1 under Section 304-A IPC. If Appellant 1 was rightly
convicted under that provision, the conviction of Appel-
lant 2 under Section 201 IPC on the facts found cannot be
challenged. But on the other hand, if the conviction of
Appellant 1 under Section 304-A IPC cannot be sustained,
then the second appellant’s conviction under Section 201
IPC will have to be set aside because to establish the
charge under Section 201, the prosecution must first
prove that an offence had been committed not merely a
suspicion that it might have been committed–and that
the accused knowing or having reason to believe that
such an offence had been committed, and with the intent
to screen the offender from legal punishment, had caused
the evidence thereof to disappear. The proof of the com-
mission of an offence is an essential requisite for bring-
ing home the offence under Section 201 IPC — see the de-
cision of this Court in Palvinder Kaur v. State of Pun-
jab [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR
1952 SC 354: 1953 Cri LJ 154] .”
It is necessary to note that the reason for acquittal under
Section 201 in the above case was that there was no evidence
to show that the rash and negligent act of Appellant 1 caused
the death of the deceased. Hence, the court acquitted Appel-
lant 2 under Section 201. The observation at para 6 has to be
viewed and analysed in that background.
9. In Ram Saran Mahto v. State of Bihar [Ram Saran
Mahto v. State of Bihar, (1999) 9 SCC 486: 2000 SCC (Cri) 254],
this Court discussed Kalawati [Kalawati and Ranjit
Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri
LJ 668] and Palvinder Kaur [Palvinder Kaur v. State of Punjab,
(1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154]. It has been
82
Neutral Citation No. ( 2025:HHC:1647 )
held at paras 13 to 15 that conviction under the main offence
is not necessary to convict the offender under Section 201
IPC. To quote: (Ram Saran Mahto case [Ram Saran
Mahto v. State of Bihar, (1999) 9 SCC 486: 2000 SCC (Cri) 254],
SCC pp. 490-91)
“13. It is not necessary that the offender himself should have
been found guilty of the main offence for the purpose of con-
victing him of an offence under Section 201. Nor is it abso-
lutely necessary that somebody else should have been found
guilty of the main offence. Nonetheless, it is imperative
that the prosecution should have established two
premises. The first is that an offence has been committed,
and the second is that the accused knew about it or had rea-
sons to believe the commission of that offence. Then and
then alone can the prosecution succeed, provided the re-
maining postulates of the offence are also established.
14. The above position has been well stated by a three-
judge Bench of this Court way back in 1952, in Palvinder
Kaur v. State of Punjab [Palvinder Kaur v. State of Punjab,
(1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154] : (AIR p.
356, para 14)
’14. In order to establish the charge under Section
201 of the Penal Code, it is essential to prove that an
offence has been committed–mere suspicion that
it has been committed is not sufficient–that the
accused knew or had reason to believe that such
offence had been committed and with the requisite
knowledge and with the intent to screen the of-
fender from legal punishment causes the evidence
thereof to disappear or gives false information re-
specting such offences knowing or having reason to
believe the same to be false.’
15. It is well to remind that the Bench gave a note of
caution that the court should safeguard itself
against the danger of basing its conclusion on sus-
picions, however strong they may be. In Kalawati
and Ranjit Singh v. State of H.P. [Kalawati and Ranjit
Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131:
1953 Cri LJ 668] a Constitution Bench of this Court
has, no doubt, convicted an accused under Section
83
Neutral Citation No. ( 2025:HHC:1647 )201 IPC even though he was acquitted of the offence
under Section 302. But the said course was adopted
by this Court after entering the finding that an-
other accused had committed the murder, and the
appellant destroyed the evidence of it with full
knowledge thereof. In a later decision
in Nathu v. State of U.P. [Nathu v. State of U.P., (1979)
3 SCC 574: 1979 SCC (Cri) 733], this Court has re-
peated the caution in the following words: (SCC p.
575, para 1)
‘1. Before a conviction under Section 201 can be
recorded, it must be shown to the satisfaction of
the court that the accused knew or had reason to
believe that an offence had been committed and,
having got this knowledge, tried to screen the
offender by disposing of the dead body.’ (em-
phasis supplied)
10. In V.L. Tresa v. State of Kerala [V.L. Tresa v. State of Kerala,
(2001) 3 SCC 549: 2001 SCC (Cri) 573], this Court has dis-
cussed the essential ingredients of the offence under Section
201 IPC at para 12: (SCC p. 555)
“12. Having regard to the language used, the following
ingredients emerge:
(I) committal of an offence;
(II) a person charged with the offence under Section
201 must have the knowledge or reason to believe that
the main offence has been committed;
(II) a person charged with the offence under Section
201 IPC should have caused the disappearance of evi-
dence or should have given false information regard-
ing the main offence and
(IV) the act should have been done with the intention
of screening the offender from legal punishment.”
11. In Sukhram v. State of Maharashtra [Sukhram v. State of
Maharashtra, (2007) 7 SCC 502 : (2007) 3 SCC (Cri) 426], this
Court discussed Kalawati [Kalawati and Ranjit Singh v. State
of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri LJ
668], Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952)
2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], Suleman Rehi-
84
Neutral Citation No. ( 2025:HHC:1647 )
man [Suleman Rehiman Mulani v. State of Maharashtra, AIR
1968 SC 829: 1968 Cri LJ 1013] and V.L. Tresa [V.L. Tresa v. State
of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] among others.
The essential ingredients for conviction under Section 201
IPC have been discussed at para 18: (Sukhram
case [Sukhram v. State of Maharashtra, (2007) 7 SCC 502 :
(2007) 3 SCC (Cri) 426], SCC pp. 510-11)
“18. The first paragraph of the section contains the pos-
tulates for constituting the offence, while the remaining
three paragraphs prescribe three different tiers of pun-
ishments depending upon the degree of offence in each
situation. To bring home an offence under Section 201
IPC, the ingredients to be established are: (i) committal
of an offence; (ii) person charged with the offence under
Section 201 must have the knowledge or reason to believe
that an offence has been committed; (iii) person charged
with the said offence should have caused disappearance
of evidence; and (iv) the act should have been done with
the intention of screening the offender from legal pun-
ishment or with that intention he should have given in-
formation respecting the offence, which he knew or be-
lieved to be false. It is plain that the intent to screen the
offender committing an offence must be the primary and
sole aim of the accused. It hardly needs any emphasis that
in order to bring home an offence under Section 201 IPC,
a mere suspicion is not sufficient. There must be on
record cogent evidence to prove that the accused knew or
had information sufficient to lead him to believe that the
offence had been committed and that the accused has
caused the evidence to disappear in order to screen the
offender, known or unknown.”
12. In Vijaya v. State of Maharashtra [Vijaya v. State of Maha-
rashtra, (2003) 8 SCC 296: 2003 SCC (Cri) 1998], though this
Court held that the decision in V.L. Tresa[V.L. Tresa v. State of
Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] was of no assis-
tance to the State in the particular facts, it reiterated that:
(Vijaya case [Vijaya v. State of Maharashtra, (2003) 8 SCC 296:
2003 SCC (Cri) 1998], SCC p. 299, para 10)
“10. … There is no quarrel with the legal principle that
notwithstanding acquittal with reference to the offence
85
Neutral Citation No. ( 2025:HHC:1647 )under Section 302 IPC, conviction under Section 201 is
permissible in a given case.”
13. The decisions in Vijaya [Vijaya v. State of Maharashtra,
(2003) 8 SCC 296: 2003 SCC (Cri) 1998] and V.L. Tresa [V.L.
Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573]
were noticed in State of Karnataka v. Madesha [State of Kar-
nataka v. Madesha, (2007) 7 SCC 35 : (2007) 3 SCC (Cri) 292].
While the appeal of the State was dismissed, this Court, in
unmistakeable terms, held that: (Madesha case [State of Kar-
nataka v. Madesha, (2007) 7 SCC 35 : (2007) 3 SCC (Cri) 292],
SCC p. 39, para 9)
“9. It is to be noted that there can be no dispute that Sec-
tion 201 would have application even if the main offence
is not established in view of what has been stated in V.L.
Tresa [V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001
SCC (Cri) 573] and Vijaya [Vijaya v. State of Maharashtra,
(2003) 8 SCC 296: 2003 SCC (Cri) 1998] cases. …”
14. Thus, the law is well settled that a charge under Section
201 IPC can be independently laid and conviction maintained
also, in case the prosecution is able to establish that an of-
fence had been committed, the person charged with the of-
fence had the knowledge or the reason to believe that the
offence had been committed, the said person has caused
disappearance of evidence and such act of disappearance has
been done with the intention of screening the offender from
legal punishment. Mere suspicion is not sufficient; it must
be proved that the accused knew or had a reason to believe
that the offence has been committed, and yet he caused the
evidence to disappear so as to screen the offender. The of-
fender may be either himself or any other person.”
91. Hence, the learned Trial Court had rightly convicted the
accused of the commission of offences punishable under Section
302 and Section 201, read with Section 34 of IPC.
92. Learned Trial Court sentenced the accused to undergo
imprisonment for life for the commission of an offence punishable
86
Neutral Citation No. ( 2025:HHC:1647 )
under Section 302 of IPC, which is the minimum sentence. Learned
Trial Court had sentenced the accused to undergo rigorous
imprisonment for three years for the commission of an offence
punishable under Section 201 of IPC. The offence under Section 201
of IPC can be punished with imprisonment of upto seven years. The
manner in which the offence was committed, and an attempt was
made to disfigure and mutilate the dead body shows that the act
was deliberate and no leniency was required. Hence, the sentence
of three years cannot be said to be excessive.
93. No other point was urged.
94. In view of the above, the present appeal fails, and the
same is dismissed.
95. The observation made herein before shall remain
confined to the disposal of the instant appeal and will have no
bearing, whatsoever, on the merits of the case.
(Tarlok Singh Chauhan)
Judge
(Rakesh Kainthla)
Judge
8th January, 2025
(Nikita)