Reserved On: 11.11.2024 vs State Of H.P on 21 November, 2024

[Cites 61, Cited by 0]

Himachal Pradesh High Court

Reserved On: 11.11.2024 vs State Of H.P on 21 November, 2024

Bench: Vivek Singh Thakur

2024:HHC:12127 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 378 of 2022 Reserved on: 11.11.2024 Date of Decision: 21.11.2024 Kamal Singh ...Appellant.


                                        Versus
    State of H.P.                                                                ...Respondent.

    Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.

    For the Appellant                           :      Mr. Pawan K. Sharma,
                                                       Advocate, Legal-Aid Counsel.
    For the Respondent/State                    :      Ms. Avni Kochhar, Deputy
                                                       Advocate General.
    Rakesh Kainthla, Judge

The present appeal is directed against the judgment dated 19.3.2022 passed by learned Additional Sessions Judge, (II), Shimla, Camp at Theog (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 302 of the Indian Penal Code (IPC) and order dated 21.3.2023, vide which he was sentenced to undergo life imprisonment and pay a fine of ₹30,000/-. (Parties shall hereinafter be referred to in the same 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2024:HHC:12127 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 an offence punishable under Section 302 of IPC. It was asserted that Rajiv Chauhan (PW1) is a horticulturist. He had gone to his cousin's house on 18.3.2017.

He, Rubil Chauhan (PW2) and Promila Devi were at home. Two Nepali males and one Nepali female, aged about 28-30 years, visited Rubil Chauhan's house at about 4.00 PM. They disclosed that they had come from Nepal in search of work. Rubil Chauhan offered them a Dera of his former servant, who had left for Nepal four months before the incident. Rajiv Chauhan (PW1) was going to Kotkhai on 20.3.2017 at about 5.45 PM when Rubil Chauhan (PW2) called and told him that the Nepali people, who had stayed in the Dera, had not come out. He opened the door and found that one male was lying dead and one female was lying injured in a pool of blood. Rajiv Chauhan (PW1) informed the police. Entry No.21 (Ex.PW11/A) was recorded in the police station. Inspector Rajneesh Thakur (PW11) visited the spot to verify the correctness of the information. He recorded the statement of Rajiv Chauhan 3 2024:HHC:12127 (Ex.PW1/A) and sent it to the police station for registration of FIR through Constable Subhash. FIR (Ex.PX1) was registered in the police station. Inspector Rajneesh Thakur (PW11) took photographs (Ex.P14 to Ex.P21) of the scene of the crime. He prepared the site plan (Ex.PW11/B) and sent the female to the hospital where she was declared dead. Inspector Rajneesh Thakur (PW11) conducted the inquest on the dead bodies and prepared the reports (Ex.PW11/C and Ex.PW6/A). He preserved the scene of the crime. The postmortem examination of the female was conducted by Dr Suneesh Chauhan (PW6) and Dr. Sumit Chauhan. They found cut mark injuries which led to haemorrhage, hypovolemic shock and death. They preserved the viscera and handed it over to the police official accompanying the dead body. They issued the report (Ex.PW6/B). They also examined the male and found antemortem head injuries leading to depression of the vital centres of the brain, which ultimately led to his death. They preserved the viscera and handed it over to the police official accompanying the dead body. They issued the report (Ex.PW6/C). Inspector Rajneesh Thakur (PW11) seized the tickets (Ex. PX) vide memo (Ex.PW1/B). He sent Constable Subhash and Constable Ajay to ISBT with the description of the 4 2024:HHC:12127 male for tracing him. Inspector Rajneesh called the forensic team to the scene of the crime and seized a controlled sample of the soil, a blood-stained mat, a blood-stained piece of cloth and a blood-stained soil vide memo (Ex.PW3/A) as per the direction of the forensic team. These were put in a parcel (Ex.P10). He also found two liquor bottles (Ex.P11 and Ex.P12), which were seized vide memo (Ex.PW9/A). Constable Subash and Constable Ajay brought the accused to the police station where an entry No. 25 (Ex.PW11/E) was recorded. The accused revealed his name as Kamal Biak. The police arrested him. He made a statement that he could locate the place where he had concealed a sledgehammer (Ghan) and a knife. Statement (Ex.PW8/A) was reduced into writing. The accused pointed to the place from where sledge hammer (Ex.P1) was recovered. He got a knife (Ex.P2) recovered, which was kept beneath the pillow of the bed in the dera. Inspector Rajneesh Thakur (PW11) prepared the rough sketches (Ex.PW8/E and Ex.PW8/F) and took photographs (Ex.P22 to Ex.P30) of the place of recovery. He prepared the spot map (Ex.PW11/G). He put the articles in a parcel and sealed the parcel on the spot. Prashant Vashishat (PW5) prepared the spot map (Ex.PW5/B). The articles were sent to FSL, Junga for 5 2024:HHC:12127 analysis. The reports (Ex.PA to Ex.PC and Ex.PX) were issued stating that the human blood of Group-A was found on the blood-stained soil. small pieces of cloth, the dagger (chhura), the sledgehammer, the shirt, pants and T-shirt of a male Nepali, the shirt, the sweater and a blood sample of a female Nepali. Human blood was detected on the mat, sweater of a male Nepali and brassiere of a female Nepali but the result was insufficient to determine the blood group. Blood found on the sledgehammer was identified as human blood. The controlled soil and blood-

stained soil could have originated from the same place. 123.28 mg % alcohol was detected in the blood sample of male Nepali. DNA profile obtained from blood-stained soil matched with the DNA profile of an unidentified female. The DNA profile from a piece of cloth, a piece of synthetic mat, chhuri and a sledgehammer matched the DNA profile of a male Nepali. Statements of remaining witnesses were recorded as per their version and after completion of the investigation, a challan was prepared and presented in the Court of learned Additional Chief Judicial Magistrate, Theog, who committed it to learned Sessions Judge, Shimla for trial.

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3. Learned Sessions Judge, Shimla assigned the matter to learned Additional Sessions Judge, Camp at Theog (learned Trial Court).

4. The learned Trial Court charged the accused with the commission of an offence punishable under Section 302 of IPC, to which he pleaded not guilty and claimed to be tried.

5. The prosecution examined eleven witnesses to prove its case. Rajiv Chauhan (PW1) and Rubil Chauhan (PW2) are the witnesses to the arrival of the accused and deceased together and handing over dera to them. Ramesh Chauhan (PW3) is the witness to recovery. HC Kartar Singh (PW4) was working as MHC, with whom the case property was deposited. Prashant Vashishat (PW5) was posted as Patwari, who prepared the spot map. Dr Suneesh Chauhan (PW6) conducted postmortem examination of the deceased. Constable Dinesh (PW7) carried the case property to FSL, Junga. Chander Mohan (PW8) is the witness to the disclosure statement and consequent recovery. Govind Chauhan (PW9) is the witness to recovery. SI Parmjit Singh (PW10) prepared the challan. Inspector Rajneesh Thakur (PW11) investigated the case.

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6. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He denied that he ever visited Rubil Chauhan. He stated that he did not know the deceased. He was caught by the police on the wrong notion. He did not get anything recovered. The police were searching for a person hailing from Nepal. He is a citizen of Nepal and he was falsely implicated based on wrong identity. No defence was sought to be adduced by the accused.

7. Learned Trial Court held that the accused and deceased were given dera. Subsequently, the deceased were found dead in a pool of blood. The burden shifted upon the accused to explain what happened to them. He failed to provide any explanation. He got recovered the weapons of offence. Minor discrepancies in the statements of the witnesses were not sufficient to discard them. DNA analysis proved that the blood sample on the weapons of offence matched the deceased. All these circumstances unerringly pointed towards the guilt of the accused. Therefore, the accused was convicted and sentenced as aforesaid.

8. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present 8 2024:HHC:12127 appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. The prosecution failed to prove its case beyond reasonable doubt. Learned Trial Court erred in ignoring the discrepancies as minor. The prosecution had failed to prove the motive. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

9. We have heard Mr. Pawan K. Sharma, learned legal-

aid counsel for the appellant/accused and Ms. Avni Kochhar, learned Deputy Advocate General, for the respondent/State.

10. Mr Pawan K. Sharma, learned legal-aid counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. The prosecution had failed to prove the identity of the accused. No Test Identification Parade was conducted which was essential in the present case. The recovery is highly doubtful. Therefore, he prayed that the present appeal be allowed and the accused be acquitted. He relied upon the judgment of P. Sasikumar vs. State (2024) 7 SCR 87 and Krishan Kumar and Anr. Vs. State of Haryana (2023) INSC 679 in support of his case.

2024:HHC:12127

11. Ms Avni Kochhar, learned Deputy Advocate General, for the respondent/State submitted that the accused was last seen with the deceased. The burden shifted upon him to explain the circumstance under which the deceased had died, he failed to provide any such explanation and the learned Trial Court had rightly held him guilty. The identity of the accused was duly established. She relied upon the judgment of Anees Vs. State Government of NCT (2024) SCC Online SC 757 in support of her submission.

12. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

13. The prosecution case is based upon the circumstantial evidence. The law relating to circumstantial evidence is well settled and was explained by the Hon'ble Supreme Court in Raja Naykar v. State of Chhattisgarh, (2024) 3 SCC 481 as under:

"16. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalised in the judgment of this Court in Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116:

1984 SCC (Cri) 487: 1984 INSC 121], wherein this Court held thus : (SCC pp. 184-85, paras 152-54) 10 2024:HHC:12127 "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 fundamental and basic decision of this Court is Hanumant v. State of M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091] This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P. [Tufail v. State of U.P., (1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ram Gopal v. State of Maharashtra [Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091]:

(Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091], SCC pp. 76- 77, para 12) '12. It is well to remember that in cases where the evidence is circumstantial, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be conclusive and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.'

153. A close analysis of this decision would show that the following conditions must be fulfilled before a 11 2024:HHC:12127 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 "maybe"

established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: 1973 SCC (Cri) 1033] where the observations were made : (SCC p. 807, para 19) '19. ... 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 "maybe" and "must be" is long and divides vague conjectures from sure conclusions.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

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154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." (emphasis in original)

17. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused "must be" and not merely "may be"

proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities, the act must have been done by the accused.

18. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."

14. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

15. Rubil Chauhan (PW2) stated that on 19.3.2017, at about 4.00 PM, three Nepalis (two males and one female) came to his house. They were in search of work. One Nepali servant used 13 2024:HHC:12127 to reside in a dera near his house who had gone to Nepal and had not returned. Therefore, he asked the Nepalis to stay in the dera which was lying vacant. He identified the accused as one of the Nepali who had visited his house. He further stated that on 20.3.2017, at about 5.45, he opened the door of the dera and saw that one Nepali was lying on the mat smeared with blood and a female Nepali was lying in an injured condition. He informed Rajiv Chauhan and told him about the incident. Rajiv Chauhan (PW1) visited the spot after half an hour and informed the police.

The police reached the spot. A female Nepali was lying unconscious and she was breathing slowly. She was sent to CHC Kotkhai. He told in his cross-examination that he had asked the Nepalis about their relationship. The Nepalis stayed for about half an hour in the courtyard. The distance between Dera and the house was about 20 meters. They had 2-3 bags. He did not know what happened inside the dera. There was light but he did not notice when it was switched off. He slept at about 10 O'Clock and woke at 7 O'Clock. He did not hear any hue and cry.

16. Rajiv Chauhan (PW1) corroborated his version. He stated that he had gone to the house of his cousin at Neraghati on 18.3.2017. He, his nephew Rubil Chauhan and Promila Devi were 14 2024:HHC:12127 present at the house on 19.3.2017. Two male Nepalis and one female Nepali came to the house at about 4.00 PM. He identified the accused as one of the Nepali. The Nepalis were in search of work. Rubil Chauhan (PW2) asked them to stay in the dera of his former servant who had left four months before the incident. He received a call on 20.3.2017 at around 5.45 PM from his nephew Rubil who told him that Nepali had not come out from Dhara. He (Rubil Chauhan) opened the door and noticed that one male Nepali was lying dead and one female Nepali was badly injured.

He (Rajiv Chauhan) informed the police and accompanied the police to the spot. The police recorded his statement. He stated in his cross-examination that he had not asked for the names and addresses of Nepalis. The distance between the house and the dera was about 10-15 mtrs. Nepalis had bags with them. The female Nepali had told him about the relationship between them.

He went to his house on 19.3.2017. Rubil Chauhan gave the keys of the dera to the Nepali. He could not say what happened inside the dera. There was a single house of his cousin at Neraghati. The bus tickets were found in the packet of the deceased.

17. It was submitted that the testimony of this witness is not reliable in the absence of a Test Identification Parade. This 15 2024:HHC:12127 submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Matru alias Girish Chandra Versus State of UP (1971) 2 SCC 75 that the test identification parade does not constitute a substantive piece of evidence. It is meant for the investigating agency to lend an assurance that the investigation is proceeding along the right lines. This position was reiterated in Ronny v. State of Maharashtra, (1998) 3 SCC 625: 1998 SCC (Cri) 859 and it was held that the substantive piece of evidence is identification in the court and there is no requirement of its corroboration from a previous identification parade. It was observed:

"18. Section 9 of the Evidence Act deals with the relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the court. The purpose of the test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to 16 2024:HHC:12127 ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of the accused should not be relied upon as any other acceptable but uncorroborated testimony.

19. In Budhsen v. State of U.P. [(1970) 2 SCC 128: 1970 SCC (Cri) 343: AIR 1970 SC 1321] the witness saw the assailants when they were running away after the alleged murder.

Observing that the witness had only a mere fleeting glimpse and for identification one would certainly expect more firm and positive reference, this Court did not consider it safe to rely on the TIP evidence as corroborative evidence of identification in court by the witness. About the identification of the accused in court, it was indicated that the same did not provide safe and trustworthy evidence to sustain a conviction. This Court also explained the nature of the identification parade, its essentials and its value.

20. In Rameshwar Singh v. State of J&K [(1971) 2 SCC 715:

1971 SCC (Cri) 638: AIR 1972 SC 102: (1972) 1 SCR 627] a three-judge Bench of this Court while dealing with the question of the identification parade observed as follows:

(SCC pp. 718-19, para 6) "[I]t may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition 17 2024:HHC:12127 to furnishing corroboration of the evidence to be given by the witness later in court at the trial. ... The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."

21. Shri Lalit, learned counsel for the appellants, relied upon the observations of this Court in Kanan v. State of Kerala [(1979) 3 SCC 319: 1979 SCC (Cri) 621: AIR 1979 SC 1127] and argued that the evidence of identification of PWs 29 and 34 is valueless as they were not called to identify the appellants in the test identification parade. In that case, the charge against the accused was that they entered into a conspiracy as members of a Naxalite party to raid Police Station Kuttiadi. In the course of the raid, the police station was attacked and articles were burnt. No member of the police station or staff was able to identify the raiders. Apart from the evidence of conspiracy, there was evidence of PW 25 who identified the appellants therein running away near the scene of occurrence after the raid took place in the police station. Firstly, his presence in the travelling bungalow was doubted and secondly, it was pointed out that he identified the appellants therein as persons who were running away near the place of occurrence and that the witness had admitted that he knew those two persons by face, yet he named them while identifying them in court. It was observed that there was a huge crowd after the police station was attacked and if those two appellants were seen running away that by itself would not show that they had taken part in the raid. It was on those facts, that it was observed that where a witness identified an accused in the court for the first time, who was not known to him, his evidence was absolutely 18 2024:HHC:12127 valueless unless there had been a previous test identification parade to test his power of observation and that the idea of holding test identification parade was to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness might have seen only once and that if no test identification parade was held, it would be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. The rationale behind the observation of this Court is that as the evidence of identification of an accused in court is inherently of a weak character, as such it requires corroboration by way of test identification parade, so where the attending circumstances are such that the possibility of identifying the accused by the witness becomes bleak, as in that case, the witness only saw the appellants running away from the crowd, then such uncorroborated evidence cannot be relied upon to base a conviction. That judgment, in our view, did not lay down as a principle of law that where the accused was known to the witness from an earlier period or where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to observe the distinctive features of the accused, his evidence of identification in the court cannot be given any credence merely because the witness was not asked to identify the accused in the test identification parade.

22. In Mohd. Abdul Hafeez v. State of A.P. [(1983) 1 SCC 143:

1983 SCC (Cri) 139: AIR 1983 SC 367] the accused, along with others, was convicted under Section 392 read with Section 34 IPC. The victim did not give the name or description of the appellant therein in the first information report. This Court observed that the total absence of any such description which would have provided a yardstick to evaluate the identification of the appellant at a later date by a victim, would render his later identification weak. No test identification was conducted in that case, so it was held that the identification in court would hardly furnish any evidence against the appellant. Indeed, in that case, this Court observed that the witness did not give the 19 2024:HHC:12127 description of the accused in the first information report or before the identification and the evidence of his identification was found to be weak, in the absence of corroboration, for being acted upon.

23. The identification of the appellants by PW 29, PW 34, PW 42 and PW 45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of the appellants by PW 42 and PW 45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of the appellants by PW 29 and PW 34 had been accepted by both the trial court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above-mentioned aspect, the evidence of PW 42 and PW 45 has been rightly rejected by the trial court and the High Court as PW 42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman Bungalow in the night. So also PW 45's identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW 29 and PW 34. They were talking to the deceased Rohan Ohol at the time when the appellants came to Rooman Bungalow. Indeed A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol and PW 29 and PW 34. They talked together for about 7-8 minutes and on Rohan Ohol's telling them to sit inside the house, they left their soiled shoes on the verandah and entered the house. It can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24-7-1992, the defence in their searching and lengthy 20 2024:HHC:12127 cross-examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such, evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification."

18. Similar is the judgment in State of Maharashtra Versus Suresh (2000) 1 SCC 471 wherein it was observed:

"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is the one who was seen by them in connection with the commission of the crime. The second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

19. It was held in Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616: 2021 SCC OnLine SC 689 that test identification is not a substantive piece of evidence and is required where the accused was unknown or the witness had a fleeting glance at the accused. It was observed:

"9. A test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the 21 2024:HHC:12127 right direction where the accused may be unknown or there was a fleeting glance of the accused. Mere identification in the test identification parade therefore cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification."

20. This position was reiterated in Kishore v. State of Punjab, 2024 SCC OnLine SC 110 wherein it was observed:

8. It is true that a test identification parade is not mandatory. The test identification parade is a part of the investigation. It is useful when the eyewitnesses do not know the accused before the incident. The test identification parade is usually conducted immediately after the arrest of the accused. Perhaps, if the test identification parade is properly conducted and is proved, it gives credence to the identification of the accused by the concerned eyewitnesses before the Court. The effect of the prosecution's failure to conduct a test identification parade will depend on the facts of each case.

21. This position was reiterated in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: 2024 SCC OnLine SC 1652 wherein it was observed at page 606:

"21. It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial...."

22. Therefore, the Test Identification Parade is not essential in every case and when the witness knew the accused or he had a chance to see the accused, his identification in the Court 22 2024:HHC:12127 cannot be doubted. Significantly, Rubil Chauhan (PW2) stated in the cross-examination that Nepali remained in the courtyard for half an hour, therefore, the witness had ample opportunity to see the Nepalis and the Test Identification Parade was not required.

23. In any case, the testimonies of these witnesses that the accused along with other Nepali citizens had visited the house of Rubil Chauhan were not challenged in their cross examination. Nothing was suggested to Rajiv Chauhan (PW1) or Rubil Chauhan (PW2) in their cross-examination that the accused had not accompanied the Nepalis. It was only suggested to Rubil Chauhan that the accused had not killed other Nepalis. It was laid down by the Hon'ble Supreme Court in State of Uttar Pradesh Versus Nahar Singh 1998 (3) SCC 561 that where the testimony of a witness is not challenged in the cross-

examination, the same cannot be challenged during the arguments. This position was reiterated in Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1: (2022) 1 SCC (Cri) 208: 2020 SCC OnLine SC 4 and it was held at page 34:

"58. A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is, or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or 23 2024:HHC:12127 may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross-examined to bring forth inconsistencies, and discrepancies, and to prove the untruthfulness of the witness. A-1 set up a case of his arrest on 1-9-2014 from 18: 50 hrs, therefore, it was required for him to cross-examine the truthfulness of the prosecution witnesses with regard to that particular aspect. The argument that the accused was shown to be arrested around 19: 00 hrs is an incorrect reading of the arrest form (Ext. 17). In Column 8, it has been specifically mentioned that the accused was taken into custody on 2- 9-2014 at 14: 30 hrs at Wanjri Layout, Police Station, Kalamna. The time i.e. 17: 10 hrs mentioned in Column 2, appears to be when A-1 was brought to Police Station, Lakadganj. As per the IO, A-1 was called for interrogation as the suspicion was on an employee of Dr Chandak since the kidnapper was wearing a red colour t-shirt which was given by Dr Chandak to his employees. A-1 travelled from the stage of suspect to an accused only on 2-9-2014. Since no cross-examination was conducted on any of the prosecution witnesses about the place and manner of the arrest, such an argument that the accused was arrested on 1-9-2014 at 18: 50 hrs is not tenable.

59. The House of Lords in a judgment reported as Browne v. Dunn [Browne v. Dunn, (1893) 6 R 67 (HL)] considered the principles of appreciation of evidence. Lord Chancellor Herschell, held that it is absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness if not speaking the truth on a particular point, direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged. It was held as under:

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct 24 2024:HHC:12127 his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross- examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling."

60. Lord Halsbury, in a separate but concurring opinion, held as under:

"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, 25 2024:HHC:12127 although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

61. This Court in a judgment reported as State of U.P. v. Nahar Singh [State of U.P. v. Nahar Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850], quoted from Browne [Browne v. Dunn, (1893) 6 R 67 (HL)] to hold that in the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under: (Nahar Singh case [State of U.P. v. Nahar Singh, (1998) 3 SCC 561:

1998 SCC (Cri) 850], SCC pp. 566-67, para 13) "13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of the delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court.

Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."

62. This Court in a judgment reported as Muddasani Venkata Narsaiah v. Muddasani Sarojana [Muddasani Venkata Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288:

(2017) 1 SCC (Civ) 268] laid down that the party is obliged to put his case in cross-examination of witnesses of 26 2024:HHC:12127 opposite party. The rule of putting one's version in cross-

examination is one of essential justice and not merely a technical one. It was held as under : (SCC pp. 294-95, paras 15-16) "15. Moreover, there was no effective cross- examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed, PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross- examination is a matter of substance not of procedure one is required to put one's own version in the cross- examination of the opponent. The effect of non-cross- examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177: AIR 1958 P&H 440]

16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128: AIR 1945 Nag 60], it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian [A.E.G. Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44: AIR 1961 Cal 359] has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur 27 2024:HHC:12127 High Court in Kuwarlal Amritlal v. Rekhlal Koduram [Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC OnLine MP 35: AIR 1950 Nag 83] has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra [Karnidan Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288: AIR 1940 Pat 683] has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff."

24. Thus, testimonies of these witnesses that the accused had visited the house of Rubil Chauhan along with other Nepalis were rightly accepted by the learned Trial Court.

25. The key of the dera was given to three Nepalis including the accused out of whom two were found dead and the accused was found missing on the next day. The accused was last seen with two other Nepalis when they were alive. The last seen theory was explained by the Hon'ble Supreme Court in Nizam v.

2024:HHC:12127 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 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 29 2024:HHC:12127 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]

26. 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, 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 30 2024:HHC:12127 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 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."

2024:HHC:12127

27. 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 last seen available in the case on hand.

28. Once it was established that the accused was seen with the deceased when they were alive in a house, the burden would shift upon the accused under Section 106 of the Indian 32 2024:HHC:12127 Evidence Act to explain what happened inside the house. It was laid down by the Hon'ble Supreme Court in Anees (supra) that when the prosecution has established the circumstances pointing towards the guilt of the accused and the accused had exclusive knowledge of the circumstance exculpating him the burden shifts upon him and in the absence of any explanation, the Court can draw an inference of the guilt of the accused. It was observed:-

"36. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration

(a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, ", especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".

37. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, this Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

"11. ... The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder 33 2024:HHC:12127 case, the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, AIR 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. [1936] 3 All ER 36 AT P. 49 (B)."

38. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, wherein this Court observed as under:

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer a proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence if the accused fails to offer a reasonable explanation in the discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

(Emphasis supplied)

39. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:

"23. It is settled law that presumption of fact is a rule in the law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from another set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the 34 2024:HHC:12127 existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382: 2000 SCC (Cri) 1516]: (SCC p. 393, para 38) "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. The State of Ajmer [AIR 1956 SC 404: 1956 Cri LJ 794] the learned Judge has stated the legal principle thus:

'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.' (Emphasis supplied)

40. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations made therein are considered relevant to the facts of the present case:

2024:HHC:12127 "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315: [1944] 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271: 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty of the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

xxxxxxxxx 36 2024:HHC:12127

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. ..."

(Emphasis supplied)

41. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused and took him away at about 2: 30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years of rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34:

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a recognized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to the burden of proof of the prosecution is allowed to be wrapped in 37 2024:HHC:12127 pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. The presumption is a course recognized by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts unless the truth of such inference is disproved. Presumption of fact is a rule in the law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody."

(Emphasis supplied)

42. Applying the aforesaid principles, this Court while maintaining the conviction under Section 364 read with Section 34 of the IPC, reversed the order of acquittal under Section 302 read with Section 34 of the IPC, and convicted the accused under the said provision and sentenced them to imprisonment for life.

43. Thus, from the aforesaid decisions of this Court, it is evident that the Court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it 38 2024:HHC:12127 has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

44. Section 106 of the Evidence Act cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from the absence of a reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

45. Section 106 of the Evidence Act obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts, especially within his knowledge, which would render the evidence of the prosecution nugatory. If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But, if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

"All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence."

(Emphasis supplied)

46. To recapitulate the foregoing: What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the 39 2024:HHC:12127 issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is, therefore, for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact, especially within his knowledge and which he must prove (see Professor Glanville Williams--Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion--para 527 negative averments and para 528 --

"require affirmative counter-evidence" at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.

47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention unless he proves the contrary.

48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not 40 2024:HHC:12127 required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions that might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261]

29. It was further held that the burden will shift when prima facie evidence is led by the prosecution. The meaning of prima facie case was explained as under:

ii. What is a "prima facie case" (foundational facts) in the context of Section 106 of the Evidence Act?

49. The Latin expression prima facie means "at first sight", "at first view", or "based on first impression". According to Webster's Third International Dictionary (1961 Edn.), "prima facie case" means a case established by "prima facie evidence"

which in turn means "evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted". In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties.

50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding the guilt of the accused.

51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts unless the truth of such inference is disproved.

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52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37 respectively as under:

"36. In this context, we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference." (Emphasis supplied)

53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under:

"24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to 42 2024:HHC:12127 prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra." (Emphasis supplied)

30. It was further held that if the offence took place inside the four walls of the house and the accused had an opportunity to plan and commit the offence, it would be extremely difficult for the prosecution to lead evidence to show the guilt of the accused.

Hence, in these circumstances, the burden shifts upon the accused under Section 106 of the Indian Evidence Act. It was observed:-

"54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member.

55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also 43 2024:HHC:12127 presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty of the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.

31. In the present case, the incident had taken place inside the four walls of a dera; therefore, the burden will shift upon the accused to explain the circumstances which transpired inside the house and in the absence of any explanation, the Court would be justified in taking this circumstance against the accused.

32. The accused was arrested from ISBT Shimla. It was submitted that Rajiv Chauhan (PW1) stated that the appearance of a third Nepali was disclosed to the police and the police prepared a sketch, however, no such sketch was produced before the Court and in the absence of the sketch, the prosecution version that the accused could be identified at ISBT where so many people are present, is highly doubtful. It is true that the sketch got prepared by this witness was not brought on record, however, that will not make the prosecution case doubtful in view of the subsequent conduct of the accused.

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33. Inspector Rajneesh Thakur (PW11) stated that the accused stated that he could show the place where he had concealed the sledgehammer and the knife. The accused pointed out the place where he had concealed the sledgehammer and the knife. Their sketches were prepared and they were seized vide memo (Ex.PW8/B). He stated in his cross-examination that he had associated two witnesses for the recovery of the hammer and knife. He could not say that knives and sledgehammers are commonly available.

34. Chander Mohan (PW8) stated that he remained associated with the police during the investigation. The accused disclosed that he could identify the place where he had concealed the sledgehammer and a knife. Police recorded his statement (Ex.PW8/A). The accused led the police to Neraghati and recovered the sledgehammer concealed beneath a rock. The accused got a knife recovered from his room which was lying beneath the pillow on the bed. He stated in his cross-

examination that the place where the hammer was concealed was outside the room and an open place. There was no passage beside that place. The accused himself took out the hammer. He and Vijay Chauhan signed the memo. The pillow was lying on the bed.

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35. There is nothing in the cross-examination of this witness showing that he had any enmity with the accused. His testimony corroborates the statement of Rajneesh Thakur (PW11) that the accused made a disclosure statement and got the sledgehammer and knife recovered pursuant to the disclosure statement made by him.

36. It was submitted that the sledgehammer was concealed in an open place that was accessible to all. Hence, the recovery of the sledgehammer will not connect the accused with the commission of crime. This submission cannot be accepted. 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 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 46 2024:HHC:12127 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 would 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].)

37. It was laid down by 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 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 47 2024:HHC:12127 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 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 48 2024:HHC:12127 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 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 49 2024:HHC:12127 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 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.

38. 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 50 2024:HHC:12127 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 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."

39. In the present case, the accused has not provided any explanation. Rather he has denied making of disclosure statement of the recovery, therefore, the only inference that can be drawn is that the accused had concealed the sledgehammer.

40. The sledgehammer was sent to FSL for analysis. The report (Ex. PX) shows that the DNA profile obtained from the sledgehammer was consistent with the DNA profile obtained from an unidentified male. This shows that the sledgehammer was used for causing injuries to the unidentified male. This was 51 2024:HHC:12127 also established by the statement of Dr Suneesh Chauhan (PW6) who found injuries over the parietal region, fronto parietal and occipital region. These injuries could have been caused by a sledgehammer (Ex.P1). He denied in cross-examination that injuries mentioned in the postmortem report (Ex.PW6/C) could be caused by a fall under the influence of liquor because, in case of a fall, the mark of injuries would not have been so severe.

Hence, the medical evidence and the report of FSL duly connect the sledgehammer recovered at the instance of the accused to the commission of a crime.

41. The accused also got the knife recovered from his room which was kept beneath the pillow. Inspector Rajneesh Thakur (PW11) stated that he called the forensic team to the scene of the crime and he seized the articles as per their direction vide memo (Ex.PW3/A). Memo (Ex.PW3/A) is dated 21.3.2017 and reads that the articles were preserved from the dera at the instance of Naseeb Singh Patial. Govind Chauhan (PW9) also stated that he remained associated with the police on 21.3.2017 and Dr Naseeb Singh seized the articles which were sealed in a parcel by the police. Therefore, as per the prosecution version, the police searched the room on 21.3.2017.

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42. The recovery of the knife at the instance of the accused was effected vide memo (Ex.PW8/B) on 23.3.2017 from the same dera. It is difficult to believe that when the police had visited the room in the presence of the forensic expert, they would have missed the knife kept inside the room. The visit by the police and recovery of the articles at the instances of forensic experts makes it difficult to rely upon the recovery of the knife. It was held by Allahabad High Court in Amin v. State, 1957 SCC OnLine All 331: AIR 1958 All 293: 1958 Cri LJ 462 that where the investigating officer could have effected the recovery earlier, the subsequent recovery at the instance of the accused is suspect. It was observed at page 303:

"109. Sri Naim appears to us to be quite capable of recovering the ornaments on the 13th and staging a recovery on the 16th. The story of the division of these ornaments is also highly suspicious and seems to us to be an attempt to incriminate Shrimati Shakira by proving her exclusive possession over some of the property. It does not stand to reason that the mother and son would divide the ornaments, and, even if they intended to do so, they will do it immediately and will not bury them at the same place."

43. Delhi High Court also took a similar view in Vijay Kumar v. State, 1995 SCC OnLine Del 364 : (1995) 60 DLT 261: 1996 Cri LJ 2429 : (1995) 2 ALT (Cri) (NRC 2) 23 and observed at page 271:

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42. As far as the recovery of a piece of hockey from the room of the appellant, Vijay, is concerned, the said piece of hockey was not lying hidden anywhere. A casual search of the room by the police would have yielded the said piece of hockey. Section 27 of the Evidence Act could make such a disclosure statement of the accused in custody admissible which leads to the discovery of a material fact but if a material fact is self-evident to the police, the disclosure statement of the accused of such material fact becomes inadmissible. In case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same which leads to recovery of such material fact, then and then only such disclosure statement of the accused is admissible in evidence. So, this recovery of a piece of hockey cannot be linked to the accused Vijay in view of the above reasons. Moreover, Premwati had stated in Court that Vijay had thrown away the second piece of hockey outside his house. If that is so, the disclosure statement of the appellant, Vijay, becomes all the more doubtful. (Emphasis supplied)

44. This position was reiterated in Mani v. State of T.N., (2009) 17 SCC 273: (2011) 1 SCC (Cri) 1001: 2008 SCC OnLine SC 75 wherein it was observed at page 278:

24. Now, it is nobody's case that at the time the discovery was made by Accused 1, Accused 2 also made certain discoveries. Therefore, the witness (PW 15) was not certain as to who made the discovery. This is apart from the fact that discovery admittedly was made from 300 ft away from the dead body of Sivakumar and after Sivakumar's body was inspected by PW 14 as early as on 25-11-1996. It would be impossible to believe that the Inspector did not search the nearby spots and that all the articles would remain (sic remained) in the open, unguarded till 6-12-1996 when the discovery had allegedly been made. This was nothing but a farce of a discovery and could never have been accepted particularly because all the discovered articles were lying 54 2024:HHC:12127 in bare open barely 300 ft away from the body of the deceased Sivakumar." (Emphasis supplied)

45. Even otherwise, the knife is not connected to the commission of the crime. The statement of Dr. Suneesh Chauhan (PW6) shows that he found injuries over the parietal region, front parietal region and an open lacerated wound with clear margins over the neck of female. The antemortem injury over the left parietal region and left frontal region was possible with the hammer and the antemortem injury over the neck was possible with a knife. The forensic laboratory report (Ex. PX) shows that the DNA profile obtained from the knife matched the DNA profile obtained from an unidentified male. Thus, the knife had the blood of the male and not the female. The postmortem report does not show any injury caused to the male by the knife.

Therefore, the knife is not connected to the commission of crime and no advantage can be derived from its recovery.

46. Therefore, it was duly established that the accused was last seen with the unidentified male and female who were subsequently found to be dead. The accused had absconded from the spot. He had got a sledgehammer recovered on which the blood of the male was found. These circumstances taken together constitute a complete link connecting the accused with the 55 2024:HHC:12127 commission of the crime. The accused failed to provide any explanation and the learned Trial Court was justified in concluding that the accused had committed the crime.

47. No other point was urged.

48. Thus, the learned Trial Court had rightly held the accused guilty of the commission of an offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment; therefore, no interference is required with the judgment and order passed by the learned Trial Court.

49. In view of the above, the present appeal fails and the same is dismissed, so also the pending miscellaneous applications, if any.

50. Records be sent back forthwith.

(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 21st November, 2024 (Chander)

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