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.2
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 3 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 4 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 5 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 6 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 7 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 8 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 9 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), 10 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.
11
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 12 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 13 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 14 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 15 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 16 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.
17
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;
18
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;
19
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 20 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;
21
Neutral Citation No. ( 2025:HHC:1647 )
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)