Jharkhand High Court
Mansoor Ansari @ Nanhu Mian vs The State Of Bihar (Now Jharkhand) on 4 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC: 17949-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No.96 of 1997(R)
---------
[Against the Judgment of conviction dated 19.03.1997 and
Order of sentence dated 20.03.1997, passed by the learned
1st Additional Sessions Judge, Giridih, in Sessions Trial
No.427 of 1993]
———
1. Mansoor Ansari @ Nanhu Mian
2. Mumtaz Mian @ Munna, both sons of Ismail Mian
residents of village – Kadwari, Charkiabad
3. Samshul Ansari, son of Madi Ansari, resident of village –
Dhainpura,
all under P.S. – Dhanwar, District – Giridih
….. Appellants
Versus
1. The State of Bihar (Now Jharkhand)
2. Narayan Yadav, S/o Ganpat Mahto of Vill – Charkiabad,
P.S. – Dhanwar, Dist. – Giridih ….. Respondents
———
PRESENT
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE RAJESH KUMAR
———
For the Appellants : Mr. Prabhash Kumar, Advocate
Mr. Manish Sharma, Advocate
For the State : Mr. Bhola Nath Ojha, Spl.P.P
———
th
Order No.38/Dated: 04 July, 2025
1. The instant appeal is directed against the Judgment of
conviction dated 19.03.1997 and order of sentence dated
20.03.1997, passed by learned 1st Additional Sessions
Judge, Giridih, in Sessions Trial No.427 of 1993, arising out
of Dhanwar P.S. Case No.86 of 1993 (G.R. No.1215 of
1993), registered under Sections 302/ 34, 120B and 201 of
the Indian Penal Code by which all the three appellants
have been convicted under sections 302/ 34/ 201 of the
Indian Penal Code (IPC) and have been directed to undergo
imprisonment for life for the offence under Sections 302/
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34 IPC and also sentenced to undergo rigorous
imprisonment for three years for the offence under Section
201 I.P.C. All the sentences were directed to run
concurrently.
Factual Matrix
2. This Court, before proceeding to examine the legality
and propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background
of institution of prosecution case.
3. The prosecution story in brief as per the allegation
made in the First Information Report reads as hereunder: –
4. According to prosecution case, as given in the First
Information Report (F.I.R.), in short, is that on 09.07.1993
the elder brother of the informant Gurucharan Yadav son of
Ganpat Mahto was executing the work in a pond at village
Bhaluai through the Block under “Jaldhara Scheme” at the
relevant time. On 09.07.1993 the deceased along with
accused Nanhu Mian son of Ismail Mian had gone to Block
Office, Dhanwar and while returning from the Block Office,
they got down at about 6 P.M at village Balhara. Both of
them started from Balhara on cycle from the village
Charkhiawar (Kodwari) as stated by a shop-keeper Basudeo
Rai. However, they did not return. The informant Narayan
Yadav who happens to be the brother of the deceased along
with others started searching for them at the places of
their relatives. But, they were traceless. The informant also
asked Ismail Mian, the father of the accused Nanhu Mian,
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who told him that his son had gone to Lucknow in
connection with his employment. The informant also made
a telephonic contact with the Malik of Nanhu Mian at
Lucknow. That Malik belongs to his community. The Malik
told him that Nanhu Mian had come before five days, and
was working at Barailly. The informant’s brother Sukhdeo
Yadav and his mama-sasur Umesh Yadav of village
Chandranagar went to search them at Lucknow where the
Malik told them that Nanhu Mian had not reached there.
The prosecution case is that since the date of occurrence
Nanhu Mian and his brother Munna Mian had absconded
from their house there was a suspicion that Nanhu Mian,
his brother Munna Mian and their relatives had kidnapped
the deceased and in furtherance of their common intention
it is likely that they had killed him. There was hulla-gulla
six months prior to the occurrence between the parties.
However, cordial relationship had developed between
them. It is likely that this cordial relationship was
intentional in order to deceive the deceased.
On the basis of the fardbeyan of the informant,
Narayan Yadav, this case was registered at Dhanwar P.S.
The fardbeyan was recorded by the O/C, Dhanwar P.S., S.I
Anil Kumar Dubedi, who had taken up the investigation of
this Case .
5. After completing investigation, the police submitted
charge sheet against six accused persons including the
appellants and the learned Chief Judicial Magistrate,
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Giridih took cognizance in the case and committed the case
to the court of Sessions where on 05.02.1994 charge has
been framed against the accused persons under Sections
120B/ 302/ 34/ 201 of the Indian Penal Code and the trial
has accordingly commenced to which the accused persons
pleaded not guilty and claimed to be tried.
6. The prosecution has altogether examined 17
witnesses, namely, P.W-1 Nunmani Mahto, P.W-2 Jay
Prakash Yadav, P.W- 3 Sukhdeo Yadav, (informant’s
brother), P.W-4 Khago Yadav, P.W-5 Gulo Mahto, P.W-6
Pramila Devi (widow of the deceased), P.W-7 Dr.
Kaushlendra Kumar, P.W.-8 Narayan Yadav (the informant),
P.W. – 9 Narayan Chaudhary (seizure list witness), P.W. – 10
Ashok Kumar Yadav (informant’s brother), P.W. – 11 Umesh
Kumar Yadav, P.W. – 12 Baleshwar Yadav, P.W. – 13 Bhimlal
Yadav, P.W. – 14 Basudeo Rai, P.W. – 15 Ganpat Mahto
(father of the deceased), P.W. – 16 Om Prakash Singh
(Constable) and P.W. – 17 Anil Kumar Dubedi (Investigating
Officer).
7. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statements of the accused person, found the
charge levelled against the appellants proved beyond all
reasonable doubts. Accordingly, the appellants had been
found guilty and convicted for the offence punishable
under Sections 302/ 34, 120B and 201 of the Indian Penal
Code.
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8. The aforesaid judgment of conviction and order of
sentence is the subject matter of instant appeal.
Submission of the learned counsel for the appellants :
9. Learned counsel appearing for the appellants, has
taken the following grounds in assailing the impugned
judgment of conviction:-
(i) The conviction is based upon the
applicability of Section 27 of the Indian Evidence
Act, 1872, since, the dead body of the deceased
was recovered on the confession made by the
appellant No.2 namely, Mumtaz Mian @ Munna. It
has been contended that although the confessional
statement of the appellant No.2 was recorded, but,
the said confession has not been brought on record
by the Investigating Officer (I.O), since, it has not
been exhibited and hence, the principle of
applicability of Section 27 of the Indian Evidence
Act will not attract in the present case in absence
of confessional statement having not been brought
on record.
(ii) The conviction so far as it relates to the
appellant Nos.1 and 2 are concerned, there is no
evidence said to be there of committing murder of
the deceased, rather, so far as Samshul Ansari is
concerned, merely on the basis of recovery of one
cycle, he has been convicted. The said cycle has
neither been produced in the Test Identification
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Parade (TIP) nor any evidence has been brought on
record to connect the said cycle which belongs to
the appellant No.3, namely, Samshul Ansari.
(iii) The ground has been taken so far as the
appellant No.1, namely, Mansoor Ansari @ Nanhu
Mian, is concerned, save and except, the deceased
was last seen with the appellant No.1, no other
incriminating evidence has come against him.
(iv) The learned counsel for the appellants,
based upon the aforesaid grounds, has submitted
that the appeal, therefore, is fit to be set aside by
interfering with the judgment of conviction, since,
the learned trial court has not appreciated the
Section 27 of the Indian Evidence Act and other
related provisions of the said Act before coming to
the conclusion by convicting these appellants.
Submission of the learned Special Public Prosecutor
for the State:
10. Per contra, Mr. Bhola Nath Ojha, learned Special
Public Prosecutor appearing for the State, has defended
the impugned judgment by taking the following grounds:-
(i) The learned trial court has passed the
impugned judgment after taking consideration the
testimony of all the witnesses in entirety including
the Investigating Officer and the Doctor.
(ii) The ground has been taken that the dead
body of the deceased was recovered on the
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2025:JHHC: 17949-DBdisclosure made by the appellant No.2 and as such
correctly the provisions of Section 27 of the Indian
Evidence Act has been applied convicting the
appellant No.2. So far as the appellant No.3 is
concerned, the cycle was recovered on his
identification which was used in the commission of
crime which has been taken into consideration by
the learned trial court. So far as the conviction of
Mansoor Ansari, the appellant No.1 is concerned,
it has been contended that he was last seen with
the deceased and the same was taken into
consideration by the learned trial court and
considering the commission of crime to be one
transaction, all the three appellants have been
convicted and hence, there is no error in the
impugned judgment of conviction.
Analysis
11. We have heard learned counsel for the parties and
gone through the findings recorded by the trial court in the
impugned judgment as also the testimony available in the
trial court record along with list of exhibits.
12. This Court, on consideration of the argument
advanced on behalf of the parties, is required to consider :-
(i) Whether in absence of confessional
statement, having not been exhibited, can Section
27 of the Indian Evidence Act, 1872 will be made
applicable as has been done by the learned trial
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2025:JHHC: 17949-DBcourt while convicting the appellants herein and
by also taking the allied grounds ?
(ii) Whether the conviction of appellant No.1,
namely, Mansoor Ansari @ Nanhu Mian can be
said to be just and proper merely because he was
last seen with the deceased having not
substantiated by connecting the chain of
commission of crime by the said appellant?
(iii) Whether the conviction of appellant No.3,
namely, Samshul Ansari, only on the basis of
recovery of cycle without any proper investigation
of implication of the said cycle with the
commission of crime can be said to be just and
proper?
(iv) Consideration of all the three appellants
are being made separately because basis of their
conviction is different, but, before considering the
aforesaid issues, the background of the
prosecution case based upon that, prosecution has
been initiated is to be referred herein :- On
09.07.1993 the deceased Gurucharan Yadav son of
Ganpat Mahto was executing the work in a pond at
village Bhaluai through the Block under “Jaldhara
Scheme” at the relevant time. On 09.07.1993 the
deceased along with accused Nanhu Mian son of
Ismail Mian had gone to Block Office, Dhanwar
and while returning from the Block Office, they got
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down at about 6 P.M at village Balhara. Both of
them started from Balhara on cycle from the
village Charkhiawar (Kodwari) as stated by a shop-
keeper Basudeo Rai. However, they did not return.
The informant Narayan Yadav who happens to be
the brother of the deceased along with others
started searching for them at the places of their
relatives. But, they were traceless. The informant
also asked Ismail Mian, the father of the accused
Nanhu Mian, who told him that his son had gone to
Lucknow in connection with his employment. The
informant also made a telephonic contact with the
Malik of Nanhu Mian at Lucknow. That Malik
belongs to his community. The Malik told him that
Nanhu Mian had come before five days, and was
working at Barailly. The informant’s brother
Sukhdeo Yadav and his mama-sasur Umesh Yadav
of village Chandranagar went to search them at
Lucknow where the Malik told them that Nanhu
Mian had not reached there. The prosecution case
is that since the date of occurrence Nanhu Mian
and his brother Munna Mian had absconded from
their house there was a suspicion that Nanhu
Mian, his brother Munna Mian and their relatives
had kidnapped the deceased and in furtherance of
their common intention it is likely that they had
killed him. There was hulla-gulla six months prior
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to the occurrence between the parties. However,
cordial relationship had developed between them.
It is likely that this cordial relationship was
intentional in order to deceive the deceased.
13. But, before considering the aforesaid issues, certain
factual aspects, i.e. the testimony of the witnesses are
required to be referred herein :-
14. The prosecution has altogether examined 17
witnesses, namely, P.W-1 Nunmani Mahto, P.W-2 Jay
Prakash Yadav, P.W- 3 Sukhdeo Yadav, (informant’s
brother), P.W-4 Khago Yadav, P.W-5 Gulo Mahto, P.W-6
Pramila Devi (widow of the deceased), P.W-7 Dr.
Kaushlendra Kumar, P.W.-8 Narayan Yadav (the informant),
P.W. – 9 Narayan Chaudhary (seizure list witness), P.W. – 10
Ashok Kumar Yadav (informant’s brother), P.W. – 11 Umesh
Kumar Yadav, P.W. – 12 Baleshwar Yadav, P.W. – 13 Bhimlal
Yadav, P.W. – 14 Basudeo Rai, P.W. – 15 Ganpat Mahto
(father of the deceased), P.W. – 16 Om Prakash Singh
(Constable) and P.W. – 17 Anil Kumar Dubedi (Investigating
Officer).
15. P.W.-1, Nunmani Mahto, appears to be an independent
witness. The dead body had been discovered in Mahulia
jungle in his presence. The dead body was kept in a gunny
bag. He is also an inquest witness. In cross examination he
has admitted that the dead body was decomposed.
16. P.W.-2, Jay Prakash Yadav, also appears to be an
independent witness. He is not related to the informant. He
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has seen the deceased and the accused Mansoor Ansari @
Nanhu Mian leaving the village on the relevant day in the
morning. He had also seen them together on the same day
at Balhara in the evening. Therefore, he is a witness who
had last seen the deceased with the accused Mansoor at
Balhara in the evening. It is said that thereafter the
deceased was not seen alive. This witness has also stated in
clear words that six months prior to the occurrence the
brother of the deceased namely, Narayan Yadav had teased
the wife of the accused Mansoor Alam. He has also stated
about the motive leading to the murder of the deceased. He
has withstood the test of cross examination.
17. P.W.-3, Sukhdeo Yadav, is the brother of the deceased.
He has stated about the “Jaldhara Scheme” and the small
contracts taken by the deceased for the same at Dhanwar
Block. He had also seen the deceased leaving the village on
the related date in the morning. He was present at his
house at that time. Both the accused Mansoor and the
deceased had left the village together on cycle for
Dhanwar. He has also said that the cycle was kept at the
shop of Basudeo Rai at Balhara. This witness has also
stated that his brother Narayan Yadav had teased the wife
of the Mansoor. There was a panchayati, and Narayan
Yadav was fined. Payment was made by his father.
Thereafter, both the deceased and Mansoor became
friends. But, this friendship was deceptive with a certain
motive. He has also stated about the inquiries made by him
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to trace out the deceased. He inquired from Ismail Mian
and learnt that the accused Mansoor had gone to Lucknow.
He had made a contact with the seth at Lucknow through
telephone. Thereafter, he went to Lucknow along with
Umesh Kumar Yadav to search for his brother-deceased.
In cross examination, he has stated that he does not
remember the telephone number of the Seth at Lucknow.
There are two routes to go to Dhanwar from his village.
One route goes through Balhara and the other through
Ghorthambha.
18. P.W.-4, Khago Yadav, has stated that on the relevant
day at 06 P.M., he had seen the deceased and the accused
Nanhu Mian (Mansoor) together at Balhara. He had gone
to Balhara with Jay Prakash Yadav in the evening.
In cross examination, he has stated that Jay Prakash
Yadav (P.W.-2) is a rural doctor. He had gone to purchase
medicines at Balhara.
19. P.W.-5, Guli Mahto, has been tendered. His evidence is
of no consequence.
20. P.W.-6, Pramila Devi, is the widow of the deceased.
She has stated that her husband and the accused Mansoor
left the village together on the relevant date in the morning
on cycle for Dhanwar Block to get money for the scheme.
She has stated that her husband had kept the cycle at
Balhara and then went to Dhanwar by bus. She has also
stated about the return of her husband to Balhara.
According to her, the dead body was recovered after 27
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days from the mine-well.
21. P.W-7, Dr. Kaushlendra Kumar, was posted on
07.08.1993 at Sadar Hospital, Giridih as C.A.S. He held the
post-mortem examination on that day at 03:00 P.M., over
the dead body of the said Gurucharan Yadav. Dr. B.P Singh
and Dr. A.K. Sahay also took part in the post-mortem
Examination as observers. He has stated about the findings
of the post-mortem examination. He has proved the post-
mortem report marked Ext.-3. He has also identified the
signatures of Dr. A.K Sahay and Dr. B.P Singh marked
Exts.- 2/1 and 2/2 and his own signature marked Ext.-2.
In cross examination, he has stated that daggers may
be of different types. He has not mentioned the dimension
of the injury.
22. P.W-8, Narayan Yadav, is the informant. He has stated
that the deceased and the accused Nanhu Mian returned
from Dhanwar by C.T.A Bus together at Balhara Chowk on
the relevant evening. They had only one cycle with them.
The cycle was taken from the shop of Basudeo Rai.
Thereafter, both the deceased and the accused Mansoor
started for their village home. But, they did not return to
the village. He has further stated that the deceased had
gone to Dhanwar Block in the morning along with the
accused Nanhu Mian on the cycle. He started searching for
his brother. He asked Ismail Mian, the father of the
accused Nanhu Mian. Ismail Mian told him that his son had
gone to Lucknow. He has also stated about the telephonic
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talk. He has stated that Sukhdeo (his brother) and Umesh
Ji, mama-sasur of Sukhdeo, went to Lucknow. But, the
deceased was not found and they returned from Lucknow.
His brother had put on full pant of ghee-coloured and shirt.
He had iron ring as well. The Atlas cycle was black
coloured which was recovered at Chunkho.
In cross-examination, he admitted that he was not
present at Balhara in the evening. He was also not present
at the time of telephonic talk. He has no document
regarding the scheme. He also made search for his
deceased brother.
23. P.W.-9, Narayan Chaudhary, the Sarpunch, Gadi Gram
Punchayat, is a seizure-list witness. Black coloured Atlas
cycle was recovered by the police from the house of
Rafique Mian at Gangapur Chunkho in his presence.
24. P.W.-10, Ashok Kumar Yadav, is the brother of the
informant, has stated that his brother deceased and the
accused Mansoor together left the village on black
coloured Atlas cycle for Dhanwar Block in the morning. The
deceased has put on a Matmaila coloured full pant. He had
an iron ring in his finger. He also had three notices in the
name of himself, Nathu Yadav and Bhikhan Yadav. He had
learnt about the return of the deceased brother in the
evening by bus at Balhara. He had also learnt that the
deceased and the accused Mansoor proceeded, thereafter,
on cycle for their village home. The police recovered the
dead body of deceased at the instance of the accused
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Munna Mian. The cycle was recovered at the instance the
accused Samsul Mian from the house of Rafique Mian at
village Chunkho. He had purchased that cycle from Pankaj
Stores, Ghorthambha.
In cross examination he has stated that there are
many shops at Balhara. He had searched for his brother at
many places such as Ghorthambha, Arkhango, Chihutia etc.
25. P.W.-11, Umesh Kumar Yadav is the mama-sasur of
Sukhdeo who had accompanied Sukhdeo to Lucknow. He
has also stated that the dead body of Gurucharan Yadav
was recovered at the instance of the accused Mumtaz Mian
@ Munna.
In cross examination, he could not say with whom he
had talked at Lucknow. He does not remember the
telephone numbers. No sanha was lodged prior to his
departure to Lucknow.
26. P.W.-12, Baleshwar Yadav, has stated that the dead
body of Gurucharan Yadav was recovered in Mahulia Jungle
at the instance of Mumtaz Ansari. He is an inquest witness.
27. P.W.-13, Bhimlal Yadav, is also an inquest witness. The
dead body was discovered in his presence.
28. P.W.-14, Basudeo Rai, has stated that the deceased
had come alone to his shop at 8:00 A.M., and kept his cycle
there. The deceased thereafter went to Dhanbar. On the
same day, he again came to his shop at Balhara in the
evening at 4:00 P.M. He has denied that both the deceased
and the accused Mansoor had come together to his shop,
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and again they had come together in the evening to take
the cycle from him.
In cross examination, he has admitted that there are
several shops at Balhara. There is no bus at Ghorthambha.
He has been declared hostile by the prosecution.
29. P.W.-15, Ganpat Mahto, is the father of the deceased.
He has stated that the deceased had informed him on the
relevant morning when he was going to Dhanwar Block
with Nanhu Mian. The deceased had put on Maila (dirt)
coloured full pant with a marking “Surat” and had an iron
ring. He had left the village on Atlas cycle. He learnt that
the deceased had kept the cycle at the place of Basudeo.
He also learnt that after taking cycle, the deceased had
proceeded in the evening. He also made inquiry from
Ismail Mian. There was friendship between Nanhu Mian
and his deceased son. He had suspected that Nanhu Mian
and his brothers had killed his son. Subsequently, he learnt
that the dead body of his son had been discovered by the
police.
In cross examination, he has stated that the written
report in pen of Sukhdeo was given at the police station.
30. P.W.16, Om Prakash Singh, is the Constable, who has
identified the signature and writing of Ganesh Pandey, S.I.
before the Court.
31. P.W.-17, Anil Kumar Dwivedi is the Investigating
Officer, has stated that on the basis of the confessional
statement of the accused Samsul Ansari, the house of
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Rafique Mian alias Ghutka was raided at village Gangapur
Chunkho. This Rafique Mian was a friend of accused
Ibrahim Mian. The I.O. has further stated that the cycle
was recovered from the house of Rafique Mian in the
presence of P.W.-9, Narayan Choudhary and Laljeet Ram.
The seizure-list was prepared.
32. The learned trial court on consideration of the
testimony of the witnesses altogether has come out with
the finding that the prosecution has been able to prove the
prosecution story beyond all reasonable doubt and while
doing so, Section 27 of the Indian Evidence Act, 1872 has
been made applicable on the ground of recovery of the
dead body on the disclosure made by the appellant No.-2.
The appellants thereafter have been convicted for the
offence under Sections 302/ 34 and 201 of the Indian Penal
Code.
33. The Court is now proceeding to appreciate the
arguments advanced on behalf of the appellants regarding
the applicability of Section 27 of the Indian Evidence Act,
and conviction merely on the basis of recovery of cycle
from the possession of appellant No.3.
34. So far as the applicability of Section 27 of the Indian
Evidence Act is concerned, the law is well settled that the
conviction can be based upon the applicability of Section
27 which has been carved out by an inception to Sections
21 to 26 of the Indian Evidence Act, in order to deal with a
case where there is no testimony of the eye witnesses. The
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aforesaid provisions provide that the conviction can also be
based upon the discovery of the incriminating materials on
the disclosure made by the concerned accused person
while he is in custody. Section 27 of the Indian Evidence
Act, 1872 reads as under :-
“Provided that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any offence, in
the custody of a police officer, so much of such
information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby
discovered, may be proved.”
35. There is no dispute about the position of law as
mandated under Section 27 of the Evidence Act that the
same is exception to Sections 25 to 26, which prohibit the
proof of a confession made before the police officer while a
person is in police custody unless it is made in immediate
presence of a Magistrate. Section 27 allows that part of the
statement made by the accused to the police “whether it
amounts to a confession or not”, which relates distinctly to
the fact thereby discovered to be proved. Thus, even a
confessional statement before the police which distinctly
relates to the discovery of a fact may be proved under
Section 27, it is only that part distinctly relates to the
discovery which is admissible.
36. Thus, the recovery pursuant to the disclosure
statement made by the accused under Section 27 of the
Evidence Act is admissible in evidence. It is also settled
that the Court must disregard the inadmissible part of the
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statement and take note only that part of his evidence,
which distinctly relates to the discovery of the articles
pursuant to the disclosure statement made by the accused.
It is further settled proposition of law that discovery of the
fact in this connection includes the discovery of an object
found, the place from which it is produced and the
knowledge of the accused as to his existence.
37. Reference with respect to the aforesaid settled
proposition may be made to the judgment of the Hon’ble
Apex Court in the case of Earabhadrappa v. State of
Karnataka, AIR 1983 SC 446. Paragraph-7 of the said
judgment reads as under:
“7. There is no controversy that the statement made
by the appellant Ex. P-35 is admissible under
Section 27 of the Evidence Act. Under Section 27
only so much of the information as distinctly relates
to the facts really thereby discovered is admissible.
The word “fact” means some concrete or material
fact to which the information directly relates. As
explained by Sir John Beaumont in Pulkuri Kotayya
v. King-Emperor [(1947) 74 IA 65 :AIR 1947 PC 67 :
230 IC 135] :
“… it is fallacious to treat the “fact discovered”
within the section as equivalent to the object
produced; the fact discovered embraces the place
from which the object is produced and the
knowledge of the accused as to this, and the
information given must relate distinctly to this
fact.””
38. Further, in Nisar Khan @ Guddu v. State of
Uttaranchal, 2006 (9) SCC 386, the Hon’ble Apex Court
at paras-6 to 8 has been pleased to observe which read as
under:
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"6. Regarding the second contention that the
recovery of arms has not been proved by the
prosecution has also no substance. It is evidence on
record that the accused were arrested on 17-12-
1999 and pursuant to a disclosure statement made
by them, the arms were recovered from the bank of
Gaula river where these had been hidden under the
sand and covered by the stones. All the arms were
recovered as pointed out by each accused hidden
under the stones. The High Court fell in error in
holding that the recovery has not been proved as
these were recovered from a place which is
frequented by the public. This finding of the High
Court is contrary to the evidence on record. It is
now well- settled principle of law that the recovery
pursuant to the disclosure statement made by the
accused under Section 27 of the Evidence Act is
admissible in evidence. In Dhananjoy Chatterjee v.
State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri)
358] it is held that the entire statement made by an
accused person before the police is inadmissible in
evidence being hit by Sections 25 to 26 but that part
of his statement which led to the discovery of the
articles is clearly admissible under Section 27 of the
Act. It is also held that the Court must disregard the
inadmissible part of the statement and take note
only of that part of his statement which distinctly
relates to the discovery of the articles pursuant to
the disclosure statement made by the accused. It is
further held that the discovery of the fact in this
connection includes the discovery of an object
found, the place from which it is produced and the
knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P.
[(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court
reiterated the view and held that the discovery
statement of an accused leading to recovery of
crime articles from concealed place, even though
the discovery statement and the recovery memo did
not bear the accused’s signature, the fact of
recovery from the well and dug out was from a place
– 20 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
which was pointed out by the appellant and,
therefore, such discovery was voluntary. That the
recovery was in consequence to the information
given was fortified and confirmed by the discovery
of the apparel worn and skeletal remains of the
deceased and, therefore, the information and
statement cannot be held to be false. In the present
case on the recovery memo the signatures of all the
accused have been obtained. In Praveen Kumar v.
State of Karnataka [(2003) 12 SCC 199 : 2004 SCC
(Cri) Supp 357] the same view has been reiterated.
8. As already noted, in the instant case the discovery
of the arms was pursuant to the disclosure
statement made by the accused immediately after
the arrest and the offending arms were recovered at
the place pointed out by each of the accused which
were concealed under the sand and covered by the
stones. The High Court in this regard fell in grave
error by disbelieving the recovery memo solely on
the ground that the place is a common place which
is frequented by the public. The High Court failed to
take notice that the recovery has been made from
underneath the sand covered by the stones pursuant
to the disclosure statement pointed out by each of
the accused.”
39. In Anil v. Admn. of Daman & Diu [(2006) 13 SCC
36] the Hon’ble Supreme Court held as under:
“23. The information disclosed by the evidences
leading to the discovery of a fact which is based on
mental state of affair of the accused is, thus,
admissible in evidence.”
40. Further, the Hon’ble Apex Court in State of H.P v.
jeet Singh [(1999) 4 SCC 370] has opined that when an
object is discovered from an isolated place pointed out by
the accused, the same would be admissible in evidence.
41. The Hon’ble Apex Court in Selvi v. State of
Karnataka [ (2010) 7 SCC 263] has held as under:
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“133.—– However, Section 27 of the Evidence Act
incorporates the “theory of confirmation by
subsequent facts” i.e. statements made in custody
are admissible to the extent that they can be proved
by the subsequent discovery of facts. It is quite
possible that the content of the custodial
statements could directly lead to the subsequent
discovery of relevant facts rather than their
discovery through independent means. Hence such
statements could also be described as those which
“furnish a link in the chain of evidence” needed for
a successful prosecution. This provision reads as
follows:
’27. How much of information received from
accused may be proved.–Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much
of such information, whether it amounts to a
confession or not, as relates distinctly to the fact
thereby discovered, may be proved.’
134. This provision permits the derivative use of
custodial statements in the ordinary course of
events. In Indian law, there is no automatic
presumption that the custodial statements have
been extracted through compulsion. In short, there
is no requirement of additional diligence akin to the
administration of Miranda [Miranda v. Arizona,
1966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384
US 436 (1966)] warnings. However, in
circumstances where it is shown that a person was
indeed compelled to make statements while in
custody, relying on such testimony as well as its
derivative use will offend Article 20(3).”
42. In Madhu v. State of Kerala (2012) 2 SCC 399,
the Hon’ble Apex Court while discussing the mandate of
Section 27 of the Evidence Act held as under:
“49. As an exception, Section 27 of the Evidence Act
– 22 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBprovides that a confessional statement made to a
police officer or while an accused is in police
custody, can be proved against him, if the same
leads to the discovery of an unknown fact. The
rationale of Sections 25 and 26 of the Evidence Act
is, that police may procure a confession by coercion
or threat. The exception postulated under Section
27 of the Evidence Act is applicable only if the
confessional statement leads to the discovery of
some new fact. The relevance under the exception
postulated by Section 27 aforesaid, is limited “… as
relates distinctly to the fact thereby discovered…”.
The rationale behind Section 27 of the Evidence Act
is, that the facts in question would have remained
unknown but for the disclosure of the same by the
accused. The discovery of facts itself, therefore,
substantiates the truth of the confessional
statement. And since it is truth that a court must
endeavour to search, Section 27 aforesaid has been
incorporated as an exception to the mandate
contained in Sections 25 and 26 of the Evidence
Act.”
43. Thus, it is evident that Section of the Indian Evidence
Act, 1872 (in short “the Evidence Act“) is by way of proviso
to Sections 25 to 26 and a statement even by way of
confession made in police custody which distinctly relates
to the fact discovered is admissible in evidence against the
accused. This position was succinctly dealt with by the
Hon’ble Apex Court in Delhi Admn. v. Bal Krishan
[(1972) 4 SCC 659] and Mohd. Inayatullah v. State of
Maharashtra [(1976) 1 SCC 828].
44. The words “so much of such information” as relates
distinctly to the fact thereby discovered, are very important
and the whole force of the section concentrates on them.
Clearly the extent of the information admissible must
– 23 – Cr. Appeal (DB) No.96 of 1997 (R)
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depend on the exact nature of the fact discovered to which
such information is required to relate. The ban was
imposed by the preceding sections was presumably
inspired by the fear of the legislature that a person under
police influence might be induced to confess by the
exercise of undue pressure. If all that is required to lift the
ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the
police will prove equal to the occasion, and that in practice
the ban will lose its effect.
45. The object of the provision, i.e., Section 27 was to
provide for the admission of evidence which but for the
existence of the section could not in consequence of the
preceding sections, be admitted in evidence. Under Section
27 as it stands in order to render the evidence leading to
discovery of any fact admissible, the information must
come from any accused in custody of the police. The
requirement of police custody is productive of extremely
anomalous results and may lead to the exclusion of much
valuable evidence in cases where a person, who is
subsequently taken into custody and becomes an accused,
after committing a crime meets a police officer or
voluntarily goes to him or to the police station and states
the circumstances of the crime which lead to the discovery
of the dead body, weapon or any other material fact, in
consequence of the information thus received from him.
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This information which is otherwise admissible becomes
inadmissible under Section 27 if the information did not
come from a person in the custody of a police officer or did
come from a person not in the custody of a police officer.
46. The statement which is admissible under Section 27
is the one which is the information leading to discovery.
Thus, what is admissible being the information, the same
has to be proved and not the opinion formed on it by the
police officer. In other words, the exact information given
by the accused while in custody which led to recovery of
the articles has to be proved.
47. The basic idea embedded in Section 27 of the
Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact,
it becomes a reliable information.
48. Decision of the Privy Council in Pulukuri Kottaya v.
Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is
the most-quoted authority for supporting the interpretation
that the “fact discovered” envisaged in the section
embraces the place from which the object was produced,
the knowledge of the accused as to it, but the information
given must relate distinctly to that effect. No doubt, the
– 25 – Cr. Appeal (DB) No.96 of 1997 (R)
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information permitted to be admitted in evidence is
confined to that portion of the information which “distinctly
relates to the fact thereby discovered”.
49. Thus, it is evident from the aforesaid provisions of
Section 27 having been interpreted by the Hon’ble Apex
Court in the judgment referred hereinabove that the
conviction can be there if there is discovery of any
incriminating materials on the disclosure made by the
concerned accused person while he is in police custody,
meaning thereby, the person concerned is to be in police
custody and confessional statement is to be there of
making disclosure of incriminating materials hidden in the
particular place. The Court is required to consider the
aforesaid aspect of the matter, but, sine qua non for the
same is that the confessional statement is to be
appreciated, since, under the provisions of Section 27 of
the Indian Evidence Act, the evidentiary value will only be
admissible to the extent of recovery made as per the
disclosure made in the confessional statement and not the
entire part of the confession.
50. In the instant case so, many documents have been
exhibited, as available in the trial court record. For the
reference, list of documents marked as exhibits are being
referred herein for appreciation of the issues involved in
the present case, which is just and proper for appreciation
of the arguments advanced on behalf of the appellants :-
i. Ext.-1-Signature of Nunmani Mahto on
inquest report (Carbon Copy)
– 26 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBii. Ext.-2 to 2/2- signatures of Dr. K. Kumar,
Dr. A.K. Sahay and Dr. B.P Singh on Post Mortem
Report
iii. Ext.-3-post mortem report
iv. Ext.-4 to 4/3- The signature of Narain
Chandani and Lajit Ram carbon copy of seizure-list
and original seizure-list
v. Ext.-5- a receipt of cycle
vi. Ext.-1/1-The signature of witness
Baleshwar Yadav on Inquest Report (Carbon Copy)
vii. Ext.-1/2-The signature of witness Bhim Lal
Yadav on Inquest Report (Carbon Copy)
viii. Ext.-6- A written exhibit list by Ganesh
Pandey
ix. Ext.-7- Endorsement of A.K. Diwedi on
written Report
x. Ext.-7/1-the signature of A.K. Diwedi on
formal Fir
xi. Ext.-8- Formal FIR
xii. Ext.-9-The written report
xiii. Ext.-10-Carbon Copy of Inquest Report
xiv. Ext.-11-Seizure list
xv. Ext.-11/1 Signature of Mansoor on seizure-
list.
51. It is admitted from the list of exhibits that the
confessional statement has not been exhibited, meaning
thereby, confessional statement of the appellant No.-2 has
not been placed before the trial court for its appreciation
so as to apply the stipulation made under Section 27 of the
Indian Evidence Act for the purpose of conviction on the
ground of recovery based upon the disclosure made in the
confessional statement. The confessional statement will be
the basic for the purpose of applicability of Section 27 of
– 27 – Cr. Appeal (DB) No.96 of 1997 (R)
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the Indian Evidence Act, and if there is any recovery made
on the basis of such disclosure, then such disclosure will be
the consequent of the confession, but the question is that if
the confessional statement which has not been brought on
record by the Investigating Officer, then how can be the
conviction be said to be based upon Section 27 of the
Indian Evidence Act, in absence of the foundational
document, i.e., the confessional statement. Exactly the case
herein is the same, since, it is admitted case of the
prosecution, even admitted by Mr. Bhola Nath Ojha,
learned Special Public Prosecutor, in course of the
argument, who after going through the trial court record,
has admitted the fact that the confessional statement has
not been exhibited. We have also found from the trial court
record that the confessional statement has not been
exhibited. The confession, since, was made by the appellant
No.-2 and the said confession has been admitted by the
learned trial court leading to recovery of the dead body
which is the basis of his conviction.
52. This Court, is of the view that in absence of the
confessional statement having not been marked and
brought on record, hence, the same ought to have been
taken into consideration by the learned trial court that vital
aspect of the matter and having not done so, rather, come
out with the finding that the investigation has not properly
been conducted, learned trial court has committed serious
error due to the reason that the court of law is not the
– 28 – Cr. Appeal (DB) No.96 of 1997 (R)
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extension counter of the prosecution, if the prosecution has
not conducted the investigation properly, the benefit of
doubt is to be given to the accused and not to the
prosecution on the principle that a wrong doer cannot be
allowed to take the advantage of its own ground.
53. This Court, therefore, is of the view that the judgment
of conviction and finding so recorded by the trial court, so
far as the appellant No.-2, namely, Mumtaz Mian @ Munna,
is concerned, suffers from error and hence, not
sustainable.
54. So far as conviction of appellant No.-1, namely,
Mansoor Ansari @ Nanhu Mian, is concerned, his
conviction is based upon last seen theory. We have perused
the aforesaid finding and found that the learned trial court
has connected the culpability said to be committed by the
appellant No.1 only because that he was last seen with the
deceased. The conviction on the basis of last seen theory,
the proper consideration is to be there by the learned trial
court on the basis of principle of completion of chain and
the moment the chain will break, there cannot be
conviction on the basis of last seen, since, it is based upon
circumstantial evidence.
55. The Hon’ble Apex Court in the year 1952, in the
judgment rendered in Hanumant Son of Govind
Nargundkar vs. State of Madhya Pradesh [AIR 1952
SC 343] has laid down the parameters under which, the
case of circumstantial evidence is to be evaluated, which
– 29 – Cr. Appeal (DB) No.96 of 1997 (R)
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suggests that: “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 established should be consistent only with
the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of 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. ……”
56. The judgment referred in Hanumant (supra) has
been consistently followed by Hon’ble Apex Court in the
judgment rendered in Tufail (Alias) Simmi Vs. State of
Uttar Pradesh [(1969) 3 SCC 198]; Ram Gopal Vs.
State of Maharashtra [(1972) 4 SCC 625] and Sharad
Birdhichand Sarda Vs. State of Maharashtra [(1984)
4 SCC 116] and also in Musheer Khan alias Badshah
Khan & Anr. Vs. State of Madhya Pradesh [(2010) 2
SCC 748.
57. The Hon’ble Apex Court in Musheer Khan (Supra)
while discussing the nature of circumstantial evidence and
the burden of proof of prosecution has held as under
paragraph nos. 39 to 46 as under:
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“39. In a case of circumstantial evidence, one must
look for complete chain of circumstances and not on
snapped and scattered links which do not make a
complete sequence. This Court finds that this case
is entirely based on circumstantial evidence. While
appreciating circumstantial evidence, the Court
must adopt a cautious approach as circumstantial
evidence is “inferential evidence” and proof in such
a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed
that “proof does not mean rigid mathematical
formula” since “that is impossible”. However, proof
must mean such evidence as would induce a
reasonable man to come to a definite conclusion.
Circumstantial evidence, on the other hand, has
been compared by Lord Coleridge “like a gossamer
thread, light and as unsubstantial as the air itself
and may vanish with the merest of touches”. The
learned Judge also observed that such evidence may
be strong in parts but it may also leave great gaps
and rents through which the accused may escape.
Therefore, certain rules have been judicially evolved
for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts
alleged as the basis of any legal inference from
circumstantial evidence must be clearly proved
beyond any reasonable doubt. If conviction rests
solely on circumstantial evidence, it must create a
network from which there is no escape for the
accused. The facts evolving out of such
circumstantial evidence must be such as not to
admit of any inference except that of guilt of the
accused. (See Raghav Prapanna Tripathi v. State of
U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] )
42. The second principle is that all the links in the
chain of evidence must be proved beyond
reasonable doubt and they must exclude the
evidence of guilt of any other person than the
accused. (See State of U.P. v. Dr. Ravindra Prakash
Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 :
- 31 - Cr. Appeal (DB) No.96 of 1997 (R)
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1992 Cri LJ 3693] , SCC p. 309, para 20.)
43. While appreciating circumstantial evidence, we
must remember the principle laid down in Ashraf Ali
v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at
para 14) that when in a criminal case there is
conflict between presumption of innocence and any
other presumption, the former must prevail.
44. The next principle is that in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and
are incapable of explanation upon any other
reasonable hypothesis except his guilt.
45. When a murder charge is to be proved solely on
circumstantial evidence, as in this case,
presumption of innocence of the accused must have
a dominant role. In Nibaran Chandra Roy v. King
Emperor [11 CWN 1085] it was held that the fact
that an accused person was found with a gun in his
hand immediately after a gun was fired and a man
was killed on the spot from which the gun was fired
may be strong circumstantial evidence against the
accused, but it is an error of law to hold that the
burden of proving innocence lies upon the accused
under such circumstances. It seems, therefore, to
follow that whatever force a presumption arising
under Section 106 of the Evidence Act may have in
civil or in less serious criminal cases, in a trial for
murder it is extremely weak in comparison with the
dominant presumption of innocence.
46. The same principles have been followed by the
Constitution Bench of this Court in Govinda Reddy
v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ
137] where the learned Judges quoted the principles
laid down in Hanumant Govind Nargundkar v. State
of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953
Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 :
AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR
para 5, p. 30 of the Report in Govinda Reddy [AIR
1960 SC 29 : 1960 Cri LJ 137] are:
“5. … „10. … in cases where the evidence is of a
– 32 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBcircumstantial nature, the circumstances [which
lead to the conclusion of guilt should be in the first
instance] fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved.
In other words, there must be a chain of 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 [shown] that within all
human probability the act must have been
[committed] by the accused.‟ [ As observed in
Hanumant Govind Nargundkar v. State of M.P.,
(1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46,
para 10.] ” The same principle has also been
followed by this Court in Mohan Lal Pangasa v. State
of U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR
1974 SC 1144] “
58. Thus, it is evident that for proving the charge on the
basis of circumstantial evidence, it would be necessary that
evidence so available must induce a reasonable man to
come to a definite conclusion of proving of guilt; meaning
thereby there must be a chain of evidence so far it is
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.
59. There is no dispute regarding the settled position of
law that in the case of circumstantial evidence, the chain is
to be complete then only there will be conviction of the
concerned accused person but, the circumstances should
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be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of
evidence so 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.
60. The same view has been taken by the Hon’ble Apex
Court in Bakhshish Singh vs. State of Punjab, (1971) 3
SCC 182 wherein the Hon’ble Apex Court has observed
that the principle in a case resting on circumstantial
evidence is well settled that the circumstances put forward
must be satisfactorily proved and those circumstances
should be consistent only with the hypothesis of the guilt of
the accused. These circumstances should be of a conclusive
nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so 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.
61. The Hon’ble Apex Court while laying down such
proposition in the said case has considered the factual
aspect revolving around therein and while considering the
fact has only found the incriminating evidence against the
– 34 – Cr. Appeal (DB) No.96 of 1997 (R)
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appellant was his pointing the place where the dead body
of the deceased had been thrown which the Hon’ble Apex
Court has not considered to be circumstantial evidence
though undoubtedly it raises a strong suspicion against the
appellant. the Hon’ble Apex Court while coming to such
conclusion has observed that even if he was not a party to
the murder, the appellant could have come to know the
place where the dead body of the deceased had been
thrown. Hence anyone who saw those parts could have
inferred that the dead body must have been thrown into
the river near about that place. In that pretext, the law has
been laid down at paragraph-9 thereof, which reads as
under:
“9. The law relating to circumstantial evidence has
been stated by this Court in numerous decisions. It
is needless to refer to them as the law on the point
is well-settled. In a case resting on circumstantial
evidence, the circumstances put forward must be
satisfactorily proved and those circumstances
should be consistent only with the hypothesis of the
guilt of the accused. Again those circumstances
should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words,
there must be a chain of evidence so 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.”
62. It is, thus, evident from the close analysis of the
aforesaid judgments the following conditions must be
fulfilled before a case against an accused can be said to be
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fully established:
(i) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
(ii) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(iii) the circumstances should be of a
conclusive nature and tendency,
(iv) they should exclude every possible
hypothesis except the one to be proved, and
(v) 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.
63. The authoritative judgment in the aforesaid context is
the Sharad Birdhichand Sarda vs. State of
Maharashtra, (supra) wherein the Hon’ble Apex Court
has held all the above five principles to be the golden
principles which constitute the “panchsheel” of the proof of
a case based on circumstantial evidence. The Hon’ble Apex
Court in the said case as under paragraph-155, 156, 157,
158 and 159 has been pleased to hold that if these
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conditions are fulfilled only then a Court can use a false
explanation or a false defence as an additional link to lend
an assurance to the court and not otherwise. Paragraphs-
155, 156, 157, 158 and 159 of the said judgment read as
under:
“155. It may be interesting to note that as regards
the mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus
delicti, the statement of law as to proof of the same
was laid down by Gresson, J. (and concurred by 3
more Judges) in King v. Horry [1952 NZLR 111]
thus: “Before he can be convicted, the fact of death
should be proved by such circumstances as render
the commission of the crime morally certain and
leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and
compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts
be accounted for.”
156. Lord Goddard slightly modified the expression
“morally certain” by “such circumstances as render
the commission of the crime certain”.
157. This indicates the cardinal principle of
criminal jurisprudence that a case can be said to be
proved only when there is certain and explicit
evidence and no person can be convicted on pure
moral conviction. Horry case [1952 NZLR 111] was
approved by this Court in Anant Chintaman Lagu v.
State of Bombay [AIR 1960 SC 500] Lagu case [AIR
1960 SC 500] as also the principles enunciated by
this Court in Hanumant case [(1952) 2 SCC 71]
have been uniformly and consistently followed in all
later decisions of this Court without any single
exception. To quote a few cases — Tufail case
[(1969) 3 SCC 198] , Ramgopal case [(1972) 4 SCC
625] , Chandrakant Nyalchand Seth v. State of
Bombay [ Criminal Appeal No 120 of 1957,],
Dharambir Singh v. State of Punjab [ Criminal
– 37 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
Appeal No 98 of 1958,]. There are a number of other
cases where although Hanumant case [(1952) 2
SCC] has not been expressly noticed but the same
principles have been expounded and reiterated, as
in Naseem Ahmed v. Delhi Administration [(1974) 3
SCC 668, 670] , Mohan Lal Pangasa v. State of U.P.
[(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v.
State of Maharashtra [(1981) 2 SCC 35, 39] and
M.G. Agarwal v. State of Maharashtra [AIR 1963 SC
200 : (1963) 2 SCR 405,] — a five-Judge Bench
decision.
158. It may be necessary here to notice a very
forceful argument submitted by the Additional
Solicitor General relying on a decision of this Court
in Deonandan Mishra v. State of Bihar [AIR 1955 SC
801] to supplement his argument that if the defence
case is false it would constitute an additional link so
as to fortify the prosecution case. With due respect
to the learned Additional Solicitor-General we are
unable to agree with the interpretation given by him
of the aforesaid case, the relevant portion of which
may be extracted thus: “But in a case like this
where the various links as stated above have been
satisfactorily made out and the circumstances point
to the appellant as the probable assailant, with
reasonable definiteness and in proximity to the
deceased as regards time and situation. such
absence of explanation or false explanation would
itself be an additional link which completes the
chain.”
159. It will be seen that this Court while taking into
account the absence of explanation or a false
explanation did hold that it will amount to be an
additional link to complete the chain but these
observations must be read in the light of what this
Court said earlier viz. before a false explanation can
be used as additional link, the following essential
conditions must be satisfied: (1) various links in the
chain of evidence led by the prosecution have been
satisfactorily proved, (2) the said circumstance
points to the guilt of the accused with reasonable
– 38 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
definiteness, and (3) the circumstance is in
proximity to the time and situation.”
64. The foremost requirement in the case of
circumstantial evidence is that the chain is to be
completed. In Padala Veera Reddy v. State of A.P. [1989
Supp. (2) SCC 706], the Hon’ble Apex Court held that
when a case rests upon circumstantial evidence, the
following tests must be satisfied:
“10. … (1) the circumstances from which an
inference of guilt is sought to be drawn, must be
cogently and firmly established; (2) those
circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused; (3)
the circumstances, 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 conviction must be complete and incapable
of explanation of any other hypothesis than that of
the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused
but should be inconsistent with his innocence.”
65. In Balwinder Singh v. State of Punjab [1995
Supp (4) SCC 259], it has been laid down by the Hon’ble
Apex Court as that the circumstances from which the
conclusion of guilt is to be drawn should be fully proved
and those circumstances must be conclusive in nature to
connect the accused with the crime. Relevant paragraph of
the aforesaid judgment is being quoted as under:
“4. … the circumstances from which the conclusion
of guilt is to be drawn should be fully proved and
those circumstances must be conclusive in nature to
connect the accused with the crime. All the links in
– 39 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBthe chain of events must be established beyond a
reasonable doubt and the established circumstances
should be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his
innocence. In a case based on circumstantial
evidence, the court has to be on its guard to avoid
the danger of allowing suspicion to take the place of
legal proof and has to be watchful to avoid the
danger of being swayed by emotional
considerations, howsoever strong they may be, to
take the place of proof.”
66. In Harishchandra Ladaku Thange v. State of
Maharashtra [(2007) 11 SCC 436], while dealing with
the validity of inferences to be drawn from circumstantial
evidence, it has been emphasized by the Hon’ble Apex
Court that where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when
all the incriminating facts and circumstances are found to
be incompatible with the innocence of the accused or the
guilt of any other person and further the circumstances
from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal
fact sought to be inferred from those circumstances.
67. In Ram Singh v. Sonia (2007) 3 SCC 1, while
referring to the settled proof pertaining to circumstantial
evidence, the Hon’ble Apex Court reiterated the principles
about the caution to be kept in mind by Court. It has been
stated therein as follows:
“39. … in a case depending largely upon
circumstantial evidence, there is always a danger
– 40 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBthat conjecture or suspicion may take the place of
legal proof. The court must satisfy itself that various
circumstances in the chain of events have been
established clearly and such completed chain of
events must be such as to rule out a reasonable
likelihood of the innocence of the accused. It has
also been indicated that when the important link
goes, the chain of circumstances gets snapped and
the other circumstances cannot in any manner,
establish the guilt of the accused beyond all
reasonable doubts.”
68. In Ujjagar Singh v. State of Punjab (2007) 13
SCC 90, after referring to the aforesaid principles
pertaining to the evaluation of circumstantial evidence, the
Hon’ble Apex Court observed as under:
“14. … It must nonetheless be emphasised that
whether a chain is complete or not would depend on
the facts of each case emanating from the evidence
and no universal yardstick should ever be
attempted.”
69. The Hon’ble Apex Court in the case of Laxman
Prasad @ Laxman vs. The State of Madhya Pradesh in
Criminal Appeal No. 821 of 2012 dated 14.06.2023 has
held at paragraphs-3 & 4 as follows:
“3. We do not find such conclusion of the High
Court to be strictly in accordance with law. In a case
of circumstantial evidence, the chain has to be
complete in all respects so as to indicate the guilt of
the accused and also exclude any other theory of the
crime. The law is well settled on the above point.
Reference may be had to the following cases: (i)
Sharad Birdhichand Sarda vs. -State of
Maharashtra,(1984) 4 SCC 116; (ii) Sailendra
Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC
180.
4. Thus, if the High Court found one of the links to
– 41 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBbe missing and not proved in view of the settled law
on the point, the conviction ought to have been
interfered with.”
70. Thus, it is evident that for proving the charge on the
basis of circumstantial evidence, it would be necessary that
evidence so available must induce a reasonable man to
come to a definite conclusion of proving of guilt; meaning
thereby there must be a chain of evidence so far it is
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.
71. This Court, applying the aforesaid proposition of law,
and the evidence which has been brought by the
prosecution for the purpose of holding the case against the
appellant No.1, namely, Mansoor Ansari @ Nanhu Mian,
said to be beyond all reasonable doubt and according to
our considered view that merely on the basis of last seen,
there cannot be any conviction, rather, proper
corroboration by completion of chain is to be there by the
prosecution. We have not found any endevour having been
conducted by the I.O by connecting culpability said to be
committed by the appellant No.1 in commission of the
crime, since, there is no recovery of any incriminating
materials, no arms and ammunition have been recovered
and sent to the Forensic Science Laboratory (F.S.L).
72. This Court, therefore, is of the view that merely on
the basis of last seen theory, the appellant No.1, since, has
– 42 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
been convicted, hence finding so recorded by the learned
trial court convicting the appellant No.1, Mansoor Ansari @
Nanhu Mian, therefore, suffers from error and hence, not
sustainable in the eye of law.
73. So far as the conviction of appellant No.3, namely,
Samshul Ansari, is concerned the basis of conviction as per
the finding recorded by the learned trial court is that he
has been convicted on the basis of recovery of cycle, which
according to the prosecution was utilized in the
commission of crime. The said cycle was identified by P.W.-
10. We have gone through the testimony of P.W.-10 and
found there from that no endevour has been taken by any
of the witnesses to connect the connectivity of the said
cycle in commission of crime. There was no TIP of the said
cycle or no witnesses has been brought by the prosecution
to establish the aforesaid fact that the cycle was used in
commission of crime.
74. This Court, in absence of material evidence since the
cycle belongs to the deceased, no corroborative evidence
whether the cycle belongs to the deceased or not and that
cycle was recovered on the basis of confession also made
by said Samshul Ansari, but, it is admitted case of the
prosecution that the confession so made by Samshul Ansari
has also not been brought on record, therefore, the case of
Samshul Ansari is on identical footing as that of appellant
No.2, hence, he is also be given the benefit of doubt. He is
also to be treated at par with the appellant No.2.
- 43 - Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
75. The law is also settled that merely on the basis of
presumption and conjecture, there cannot be conviction of
a person snatching away the right to life as directed under
Article 21 of the Constitution of India, rather the principle
is that the conviction is to be based upon the evidence as
produced by the prosecution witness if found to be proved
beyond all reasonable doubt.
76. The Hon’ble Apex Court in catena of decision has
propounded the proposition that in the criminal trial, there
cannot be any conviction if the charge is not being proved
beyond all reasonable doubts, as has been held in the case
of Rang Bahadur Singh & Ors. Vrs. State of U.P.,
reported in (2000) 3 SCC 454, wherein, at paragraph-22,
it has been held as under:-
“22. The amount of doubt which the Court would
entertain regarding the complicity of the appellants
in this case is much more than the level of
reasonable doubt. We are aware that acquitting the
accused in a case of this nature is not a matter of
satisfaction for all concerned. At the same time we
remind ourselves of the time-tested rule that
acquittal of a guilty person should be preferred to
conviction of an innocent person. Unless the
prosecution establishes the guilt of the accused
beyond reasonable doubt a conviction cannot be
passed on the accused. A criminal court cannot
afford to deprive liberty of the appellants, lifelong
liberty, without having at least a reasonable level of
certainty that the appellants were the real culprits.
We really entertain doubt about the involvement of
the appellants in the crime.”
77. Likewise, the Hon’ble Apex Court in the case of
Krishnegowda & Ors. Vrs. State of Karnataka,
– 44 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
reported in (2017) 13 SCC 98, has held at paragraph-26
as under:-
“26. Having gone through the evidence of the
prosecution witnesses and the findings recorded by
the High Court we feel that the High Court has
failed to understand the fact that the guilt of the
accused has to be proved beyond reasonable doubt
and this is a classic case where at each and every
stage of the trial, there were lapses on the part of
the investigating agency and the evidence of the
witnesses is not trustworthy which can never be a
basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be
innocent until his guilt is proved beyond reasonable
doubt.”
78. It requires to refer herein that the principle of
‘benefit of doubt’ belongs exclusively to criminal
jurisprudence. The pristine doctrine of ‘benefit of doubt’
can be invoked when there is reasonable doubt regarding
the guilt of the accused, reference in this regard may be
made to the judgment rendered by the Hon’ble Apex Court
in the case of State of Haryana Vrs. Bhagirath & Ors.,
reported in (1999) 5 SCC 96, wherein, it has been held at
paragraph-7 as under: –
“7. The High Court had failed to consider the
implication of the evidence of the two eyewitnesses
on the complicity of Bhagirath particularly when the
High Court found their evidence reliable. The
benefit of doubt was given to Bhagirath “as a matter
of abundant caution”. Unfortunately, the High Court
did not point out the area where there is such a
doubt. Any restraint by way of abundant caution
need not be entangled with the concept of the
benefit of doubt. Abundant caution is always
desirable in all spheres of human activity. But the
– 45 – Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DBprinciple of benefit of doubt belongs exclusively to
criminal jurisprudence. The pristine doctrine of
benefit of doubt can be invoked when there is
reasonable doubt regarding the guilt of the accused.
It is the reasonable doubt which a conscientious
judicial mind entertains on a conspectus of the
entire evidence that the accused might not have
committed the offence, which affords the benefit to
the accused at the end of the criminal trial. Benefit
of doubt is not a legal dosage to be administered at
every segment of the evidence, but an advantage to
be afforded to the accused at the final end after
consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt
regarding the guilt of the accused.”
79. Likewise, the Hon’ble Apex Court in the case of
Krishnegowda v. State of Karnataka (Supra) at
paragraph- 32 and 33 has held as under:-
“32. — — The minor variations and contradictions
in the evidence of the eyewitnesses will not tilt the
benefit of doubt in favour of the accused but when
the contradictions in the evidence of the
prosecution witnesses proves to be fatal to the
prosecution case then those contradictions go to
the root of the matter and in such cases the accused
gets the benefit of doubt.
33. It is the duty of the Court to consider the
trustworthiness of evidence on record. As said by
Bentham, “witnesses are the eyes and ears of
justice.—
80. This Court, after having discussed the factual as well
as the legal issues as discussed above and on the principle
that there cannot be any conviction if the prosecution has
not proved the charge said to be proved beyond all
reasonable doubt, is of the view that the impugned
judgment needs interference.
- 46 - Cr. Appeal (DB) No.96 of 1997 (R)
2025:JHHC: 17949-DB
81. Accordingly, the Judgment of conviction dated
19.03.1997 and order of sentence dated 20.03.1997,
passed by learned 1st Additional Sessions Judge, Giridih, in
Sessions Trial No.427 of 1993, arising out of Dhanwar P.S.
Case No.86 of 1993 (G.R. No.1215 of 1993), is, hereby,
quashed and set aside.
82. Since the appellants are on bail, they are discharged
from all the criminal liability, henceforth.
83. In the result, the instant appeal stands allowed.
84. Pending interlocutory application, if any, stands
disposed of.
85. Let the Trial Court Records be sent back to the Court
concerned forthwith, along with the copy of this Judgment.
(Sujit Narayan Prasad, J. )
(Rajesh Kumar, J.)
Jharkhand High Court, Ranchi
Dated, the 04th July, 2025
Ravi-Chandan/- AFR
– 47 – Cr. Appeal (DB) No.96 of 1997 (R)
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