Gauhati High Court - Itanagar
CRL.A(J)/40/2023 on 13 February, 2026
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GAHC040016202023 2026:GAU-AP:156-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/40/2023
Shri Dorjee Tsering
..........Appellant
-Versus-
The State of Arunachal Pradesh
..........Respondent
BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND HON'BLE MR. JUSTICE BUDI HABUNG Advocates for the appellant : Mr. M. Boje, Amicus Curiae Advocate for the respondents : Ms. T. Jini, Addl. PP.
Mr. T.T. Tara
Date on which judgment is reserved : 17.11.2025
Date of pronouncement of judgment : 13.02.2026
Whether the pronouncement is of
the operative part of the judgment : N/A
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Whether the full judgment has been
pronounced : Yes
JUDGMENT AND ORDER (CAV)
(S.P. Khaund, J)
Factual Matrix :
1. This appeal is preferred by Sri Dorjee Tsering ( hereinafter referred to as the appellant or accused) against the judgment and order dated 20.09.2022 in connection with Sessions Case No.2/ 2021 ( arising out of Dirang PS Case No.15/2020), passed by the learned Sessions Judge at Bomdila, West Kameng District, convicting the appellant under section 302 of the Indian Penal Code ('IPC' for short ) to undergo Imprisonment for Life and to pay a fine of Rs. 20,000/-, with default stipulation, and under Section 201 IPC to undergo rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 5000/-, with default stipulation. The sentences are to run concurrently.
2. The allegation against the appellant is that on the evening of 22.09.2020 at Lubrang village, Pem Sangey (herein after also referred to as the deceased) and Lopa @Pema Wangda went to visit Dor Passang in his residence and after some time Dorjee Tsering (hereinafter referred to as accused) came and joined them. They are all residents of Lubrang village, which is a small community consisting of 190 residents. They were all drinking Araa (local alcoholic drink) and thereafter they came out from the residence of Dor Passang and reached the house of the deceased at about 8 pm where the deceased and the accused broke into a scuffle and they started quarrelling. Lopa @ Pema Wangda prevented them from quarrelling and took the accused back to his residence. On the way, the accused purchased some more alcohol, and after some time, the accused left the house of Lopa @Pema Wangda. On the following day, both the accused and the deceased were found missing, and the villagers set out on a frantic Page No.# 3/41 search. At about 3 to 4 p.m., the villagers noticed that the door of the victim's house was locked from outside, and they peeped in from the window and saw the body of the victim hanging by a rope. They noticed injuries on the face of the deceased. A commotion arose in the village and everybody except the appellant, gathered near the house of the deceased. Police was informed over phone, but as it was already dark, police asked the villagers not to open the door till their arrival. The villagers again searched for the appellant and found him sleeping inside a hut. The villagers brought the appellant before a gathering at about 1 a.m. midnight and on being confronted about the incident, the appellant confessed in presence of the villagers that he had killed the deceased. The following morning, police came to the village and embarked upon the investigation. At about 8.30 a.m. of 24.09.2020, the brother of the deceased, Dorjee Wangdi, lodged an FIR with the police. The FIR was registered as Dirang Police case No.15/2020 under section 302 IPC. The Police broke the lock of the door in presence of the villagers and entered into the house of the deceased.
3. The body of the deceased which was hanging by a rope was brought down and an inquest was held. A sharp cut mark was visible on the body of the deceased. As per the disclosure of the accused, the investigating officer (I.O. for short) recovered one axe from the residence of the deceased. The entire process was video-graphed by the I.O.. The statement of the accused was recorded by the I.O. in presence of witnesses as per Section 27 of the Indian Evidence Act, 1872 (the Evidence Act for short ). The axe and the ropes used as weapons of offence were seized by the police as per the disclosure statement of the accused. Blood stained garments were also seized by the I.O. The I.O. arrested the accused and produced him before the Court. Post mortem was performed on the body of the deceased and thereafter the body was handed over to the relatives. The I.O. recorded the statements of the witnesses and forwarded the axe, garments, etc. for Page No.# 4/41 forensic examination.
4. On completion of investigation and on finding a prima facie case, the I.O. submitted charge sheet against the accused. On appearance of the accused, a formal charge was framed under Section 302/201 of the IPC and the accused abjured his guilt and claimed innocence. To substantiate its stance, the prosecution examined 10 witnesses, including the medical officer (M.O. for short,) and the I.O. On the incriminating circumstances arising against the accused, several questions were asked to the accused under Section 313 (1) (b) of the Code of Criminal Procedure, 1973 (CrPC for short) and the tenor of his answers depicted a plea of total denial. No defence evidence was adduced by the accused.
Arguments for the Appellant :-
5. It has been argued on behalf of the appellant that the extrajudicial confession in presence of the villagers has no evidentiary value as this extrajudicial confession has not been substantiated. The disclosure statement is not valid. The recovery memo clearly reveals that the disclosure statement is not valid. The forensic report turned out to be negative and the learned Trial Court has erroneously convicted the appellant only on the basis of the flawed disclosure statement. The learned counsel for the appellant laid stress in his argument that the victim was also missing and this fact has been completely ignored by the Trial Court.
6. After a frantic search by the villagers and after the lodgment of the FIR on 24.09.2020, the investigation continued. The confession of the accused is before the villagers. No confessional statement was recorded under section 164 of the CrPC.
7. It is contended that the extrajudicial confession before the villagers was not voluntary. The community was a small community of a very thinly populated village and they were good friends and good friends would not kill Page No.# 5/41 for alcohol. The learned counsel has prayed to allow the appeal and set aside the erroneous judgment of the Trial Court.
Arguments by the Prosecution side :-
8. Learned counsel Mr. T.T. Tara on behalf of the complainant has submitted that actus reus and mens rea have surfaced through the evidence. The unimpeachable evidence proves this case against the petitioner. The chain of circumstances is complete.
9. Mr. T.T. Tara has relied on the decision of the Supreme Court in the celebrated case of Sarad Birdhichand Sarda-Versus-State of Maharashtra decided on July 19, 1985 at paragraph 153, reported in (1984) 4 SCC 116, wherein it has been held that :-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal 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 where the following observations were made. [SCC para 19, p: 807: SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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 Page No.# 6/41 (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."
10. Additional Public Prosecutor Ms. T. Jini laid stress in her argument that the room of the deceased was locked from outside and the villagers informed the police and thereafter the lock was broken. This resulted in a negligible delay in the lodgment of the FIR. This has been clearly mentioned in the FIR, which was lodged after a day i.e. on 24.09.2020 and the incident occurred apparently before 23.09.2020, may be within the intervening night of 22.09.2020 or 23.09.2020.
11. It is submitted that the recovery memo was properly prepared subsequent to the disclosure of the appellant. The seizure list was also prepared subsequent to the disclosure of the appellant.
12. As mentioned by the appellant, the inquest report clearly depicts the sharp injuries and the strangulation marks. The inquest report has also been exhibited as P.Ex. No. 18(a). The postmortem report clearly depicts that the deceased died as a result of strangulation as the ligature mark was continuous. The PM report is marked as P.Exh. No. 26 (b).
13. It has also been submitted by the learned Additional Public Prosecutor that the evidence clearly reveals that the appellant made his confession voluntarily. The extrajudicial confession was not extracted by the public by exercising pressure on the appellant, or by assaulting him.
14. The answers of the appellant under section 313 CrPC were evasive. He could not repel the incriminating circumstances against him. It is submitted that the chain of circumstances is so complete that it has been proved beyond a reasonable doubt that the accused and only the accused has committed the offence of murder.
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15. Learned Additional Public Prosecutor has relied on the following decisions :-
(i) Yedala Subba Rao & Anr.-Versus-Union of India reported in 2023 (5) Supreme 8,
(ii) Ishwari Lal Yadav-Versus-State of Chhattisgarh reported in 2019 (8) Supreme 644,
(iii) Sanjeev-Versus-State of Kerala reported in 2023 (7) Supreme 492,
(iv) Prem Singh-Versus-State of NCT of Delhi reported in 2023 (1) Supreme 27.
The remaining part of the argument for both the sides may be taken up at the appropriate stage.
Decision of the Trial Court :-
16. It was held by the Trial Court that the case of the prosecution is based on circumstantial evidence and extra judicial confession. The evidence of the witnesses could not be contradicted and from the corroborating evidence, it has been proved beyond a reasonable doubt that on the evening of 22.09.2020, the accused and the deceased consumed Aara (local alcoholic drink) with Lopa @ Pema Wangda in the residence of Dor Passang. It was observed that at about 8 p.m., the deceased Pem Sangey and accused Dorjee Tsering, along with Lopa @ Pema Wangdi came to the residence of the deceased and the accused took a mug without the permission of the deceased, which triggered the quarrel and the scuffle between the accused Page No.# 8/41 and the deceased. They were heading homewards and Lopa requested the accused to stay in his house for the night but the accused went away from his residence with the bottle of alcohol, which he had purchased on his way.
17. It was observed by the Trial Court that these facts and circumstances were not assailed by the defence during trial and this corroborative evidence of PW-1 and PW-2 stood firm. On the following day i.e. on 23.09.2020, both the deceased and the accused were found missing from the village and a frantic search was made by the villagers Pem Tsering, Pem Tashi, Rinchin Tashi and Lopa @ Pema Wangda. They saw through the window of the house of the deceased that he was hanging by a rope inside his house which was locked from outside. The police was informed and this fact was also proved beyond reasonable doubt. The villagers who had assembled there, suspected that the accused had a hand in this, and they set out on a frantic search and found the accused sleeping in a cow shed/hut which was located about a kilometer away from the village. Then the villagers, including Dor Passang, Sang Norbu and Pem Leiki confronted the accused who confessed that he had killed the deceased as the deceased was not inclined to drink with him. At about 1 a.m., they brought the accused near the residence of the deceased, where the other villagers were also present and it was proved beyond reasonable doubt that the accused voluntarily confessed before all the villagers that he killed the deceased as the deceased refused to drink with him.
18. It was held by the Trial Court that during cross-examination, the prosecution witnesses have categorically stated that no pressure was exercised on the accused to confess his guilt. The villagers have also noticed blood-stained jeans and jacket belonging to the accused. On the morning of 24.09.2020, police arrived at the village and the accused again confessed before the villagers and the police that he had killed the deceased and he disclosed that he threw away the key of the door-lock in the jungle. The I.O., Page No.# 9/41 in presence of the villagers and the accused broke open the lock. It was noticed that the body of the deceased was hanging by a rope from a plank in the ceiling. The accused also disclosed about the weapon of offence and the I.O recorded the disclosure statements which were marked as Exhibit -2 and Exhibit - 3. The seizure list was proved by the witnesses, namely Rinchin Tashi, Pem Tashi and Dorjee Wangdi. The seizure of bloodstained jeans and jacket was proved by the same witnesses. It was also observed by the Trial Court that the medical officer has proved the post mortem report, and it was thus affirmed that the death of the deceased was caused by the accused. On the corroborating testimony of the witnesses, it was held that the accused made the extra- judicial confession. The deceased was last seen alive in the company of the accused when the accused and the deceased were quarreling. The disclosure statement was duly proved although the accused was not in police custody. The chain of circumstances leading solely to the guilt of the accused, was proved. The same was complete when the weapon of offence was also recovered.
19. The points for determination in this case would thus be :
(i) Whether the confessional statement was voluntarily made by the appellant?
(ii) Whether the disclosure statement which was not made while the accused was under the custody of the police and when the accused was not formally arrested, dispels or breaks the chain of circumstances.
20. Heard Mr. M. Boje, Amicus Curiae for the appellant and Ms. T. Jini, Addl. PP. for the respondent State and learned counsel Mr. T.T. Tara.
Analysis and Conclusion :-
21. We have given our thoughtful consideration to the submissions at the Page No.# 10/41 bar.
22. To decide this case in its proper perspective, the evidence is re- appreciated. Four friends (Pem Sangey, Lopa @ Pem Wangda, Dor Passang and Dorjee Tsering) met on the fateful evening and they had alcohol-"araa" in the house of Dor Passang.
The informant Dorjee Wangdi did not witness the incident. He deposed as PW-1 that his brother was killed by the accused in the year 2020. He received information from the villagers that his brother was locked inside a room and he immediately went to the place of occurrence (P.O. for short) and saw his brother hanging by a rope from the loft of the house. He informed the police in the evening but the body which he saw through the window was not brought down and they waited till the next morning for the police. The police broke the lock and the body was brought down. He noticed injuries on his brother's head and right leg and blood on his head and chin. His brother sustained a sharp injury on his chin. He noticed one blood stained axe near the body. The villagers who were present became suspicious about the conduct of the accused, who was found missing from the village. They found the accused sleeping in a hut and on being confronted by the villagers, the accused admitted that he killed the deceased because the deceased refused to consume alcohol with him. The accused also admitted before him (PW-1) and the villagers that, he attacked his brother and he killed his brother with a wooden stick. Later on, he also confessed that he (appellant) used an axe to kill his brother. Amongst the villagers Rinchin Tashi (PW-3), Tashi Phuntso (GB) and Toka were present. Meanwhile, the police arrived. He proved the FIR lodged by him as P.Ex.1. He identified the disclosure statement as P.Ex.2 and his signature as P.Ex. 2(a). He identified the recovery memo of the weapon of offence as P.Ex.3, and his signature as exhibit P.Ex.3 (a). He identified the seizure list of weapon of offence as P.Ex.4 and P.Ex. 4 (a) as his signature. M.Ex.1 was identified as the axe which was shown to him at the place of occurrence, M.Ex.2 as the Page No.# 11/41 pair of jeans of the accused and M.Ex.3 as the blood stained jacket. After post-mortem examination, the body of his brother was handed over to them. He further added that the accused was known to him since his childhood, and the accused used to get inebriated after consumption of alcohol. Through his cross-examination, the defence projected that he did not witness the incident, but he was present when the accused made the extra judicial statement.
23. PW-1, Dorjee Wangdi testified that Rinchin Tashi, Tashi Phunsto, (GB) and Toka were with him when the accused made the extra-judicial confession. This Rinchin Tashi deposed as PW-3 that he received an information that the deceased and the accused were missing. At that time, he ( PW-3), was at Ramacamp. He heard that both the deceased and the accused were together on the previous night, and both of them were not answering the phones. Accordingly, he came to Lubrang village and was willing to join the search operation, but on the way, he was informed that the deceased was found inside his house, hanging by a rope, and the door was locked from outside. He went to the police station along with the informant. By then, it was evening and the police instructed them not to open the door. Thereafter, he along with the informant came back to the village at night and he heard from the villagers that the accused and the deceased were together on the previous night and they had consumed alcohol. On the following day, the accused was not seen by any of the villagers. The accused used to take care of cattle for the owner of the cattle, Pem Leiki and he used to stay in a hut which is about a kilometer away from the village. The accused initially denied to have committed the offence but on proper enquiry, he admitted to have committed the offence in presence of his employer in the hut. The accused was brought back to the village and he also admitted to have committed the offence in presence of other villagers. Later on, the police arrived and he also confessed before the villagers and the police.
24. This evidence of PW-3 proves that accused was confronted by the Page No.# 12/41 villagers and then he confessed. He was not with PW-1 when PW-1 found the accused in his hut. PW-3 was in the village when the accused was brought to the village from his hut. This proves that the accused made the confession before arrival of police in presence of PW-1, PW-4, PW-5 and some other villagers. PW-1 further deposed that Pem Thinley, Dor Passang and the employer went to the hut to meet the accused and the accused confessed before them to have committed the offence. On being queried by his father, the accused denied of involvement of any other person in the offence and he admitted that he alone was responsible for the death of the deceased.
25. Now at this juncture, it is apt to mention that although PW-1 testified that when he went to the house of the accused and asked him about the incident, the accused admitted before him, Rinchin Tashi (PW-3), Tashi Phunsto, R (GB) and Toka that he committed the offence, but the evidence of PW-3 clearly depicts that he was not present when the accused made the extra-judicial confession before Pem Thinley, Dor Passang and his employer Pem Leiki. The evidence of PW-3 reveals that when the accused confessed before the police he was present and he witnessed the confession. PW-3 categorically stated that he was present at the time when the door was opened by breaking the lock. On being confronted, the accused confessed that he killed the deceased. Thereafter, the deceased was brought down and forwarded for post-mortem examination. He, PW-3 also noticed the blood stained jeans and jacket of the accused, who confessed before them that as the deceased was unwilling to have alcohol, he was provoked to commit the offence.
26. The evidence of PW-4, Pem Tashi depicts that the accused confessed before the arrival of police. He testified that on the next morning, he came to the village before the arrival of the police and personally asked the accused and the accused admitted before him that he had committed the offence as the deceased refused to have alcohol with him. He further deposed that later on the police came and broke the lock of the house in their presence and Page No.# 13/41 they discovered the body of the deceased hanging by a rope from the loft of the house.
27. Pem Thinley, PW-5 also deposed that they were searching for the accused. He was accompanying Pem Leiki, Dor Passang, Sang Norbu, Phurpa Dorjee and Dorjee Sereng while they were searching for the accused. They then reached the house of the deceased which was locked from the outside and the brother of the accused, Pene saw the deceased from the window. Thereafter, he, (PW-5) along with other persons saw the dead body from the window. Pem Leiki informed them that the accused was not present in his house and later in the evening, they visited the residence of the accused, at a place where the accused was sleeping. Then, he (PW-5), along with Dor Passang, PW-10, Sang Norbu and Leiki went to the hut where the accused was found to be sleeping. Initially, the accused did not confess but later the accused admitted that he had committed the offence. The accused was then brought to the village at about 1 a.m. midnight. The police came to the village in the morning but he could not recall the time when the police arrived at the place of occurrence.
28. It is true that the evidence of PW-5 depicts that the extrajudicial confession was already made by the accused in presence of the witnesses and not in presence of the police. It is pertinent to mention at this juncture that the accused had already made the extra judicial confession before PW-1 and some other villages.
29. The learned counsel for the appellant/ accused laid stress in his argument that conviction cannot be based solely on extrajudicial confession. An extrajudicial confession is a weak piece of evidence.
30. The Additional PP laid stress in her argument that if an extrajudicial confession is voluntarily made, conviction can be based on such extrajudicial confession.
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31. The Additional Public Prosecutor has relied on the decision of the Supreme Court in Iswari Lal Yadav-Versus-State of Chattisgarh reported in (2019) 10 SCC 437 wherein it has been held that :-
"22. The confessional statements made to the police by the appellants, cannot be the basis to prove the guilt of the accused but at the same time there is no reason to discard the confessions made to the independent witnesses at the time when Chirag's body was found, prior to the arrival of police. It is true that extra judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused. In the case on hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution. In addition to the same, PW-2 and PW-3 who are the parents of the deceased have identified the cloths, which the deceased child was wearing on the date of missing. It is also clear from the evidence that the skeletal remains were removed. They have also found the cloth pieces, attached to skeletal remains. The colour of such cloth pieces was tallied with the description in the missing report lodged by PW-2 earlier on 04.03.2010. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them."
32. The Additional Public Prosecutor has also relied on the decision of the Supreme Court in Kalinga @ Kushal-Versus-State of Karnataka by Police Inspector Hubli reported in (2024) 4 SCC 735 wherein it has been held that :-
"15. It is no more res integra that an extra judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution Page No.# 15/41 necessarily rests on the extra judicial confession."
33. It is true that in this case, initially the accused did not confess but after being interrogated by the villagers, the accused confessed.
After considering the submissions at the bar, this Court is unable to accept that there was no pressure exercised by the villagers and that the accused was not under duress to confess. It has emerged through the evidence of the witnesses that initially the accused was not willing to confess but after being interrogated, the accused finally confessed. The cross- examination of PW-1 reflects that the accused admitted his guilt and thereafter, he (PW-1) slapped him twice or thrice and the accused blurted out the entire incident. The evidence of Rinchin Tashi, PW-3, who according to PW-1, was present at the time when the accused confessed his guilt depicts that the accused initially denied to have committed the offence but on proper enquiry, he admitted to have committed the offence in presence of his employer. PW-3's deposition however contradicts the evidence of PW-1 as PW-3 stated that he did not go to the hut at Lubrang.
34. This evidence-in-chief of PW-3 depicts that there was indeed some interrogation by the villagers and this indicates that the accused was under
duress to confess. The evidence of PW-1 clearly depicts that he along with Rinchin Tashi, Tashi Phuntso and Toka were present when the accused made the extrajudicial confession, but at the same time, the evidence of PW-1 reveals that initially the accused was not willing to confess and after the accused admitted, PW-1 slapped the accused twice or thrice, whereafter the accused narrated the entire incident at the time of making his extrajudicial confession in the absence of police. The accused has disputed the voluntariness of his extrajudicial confession. The witnesses were cross- examined in this respect. All the witnesses who were cross-examined with respect to the voluntariness of the extrajudicial confession, have denied that Page No.# 16/41 the confession was not voluntary.
35. In his statement under section 313 of the CrPC also, the accused denied of having made any extrajudicial confession before the villagers, specifically PW-1, PW-4 and PW-5. It has emerged from the evidence that the accused made the extrajudicial confession before the villagers who went searching for him to the house of the employer of the accused. An exception is PW-4, Pem Tashi, who stated that on the next morning when he came to the village before the arrival of the police, he personally interrogated the accused who admitted of having committed the offence.
36. The evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 (Phurpa Dorjee) and PW-7 reveal that, on noticing the dead body of the deceased inside his house, the villagers set out on a frantic search for the accused, who was missing from the village. Some of the villagers went to the upper side of Lubrang area where the accused, as a shepherd used to rear cattle for his employer. This area is about a kilometer away and the accused was found in a hut in upper Lubrang area. Before these villagers, who went up to the upper Lubrang area, the accused made the extra judicial confession. It has already been held in the foregoing discussions that the extrajudicial confession already made before these villagers, does not appear to be voluntary. Initially the accused denied of having killed the deceased, but after interrogation he admitted his guilt. Thereafter, PW-1 slapped the accused twice or thrice and the accused then admitted the entire incident. Extrajudicial confession of such a nature cannot form a basis of conviction.
37. The evidence of PW-4 relating to the extra judicial confession of the accused cannot be accepted as the accused had already confessed before the other witnesses who went up to his hut at Lumbrang. It has already been held in the foregoing discussions that the extra judicial confession which was Page No.# 17/41 already made in presence of the PW-1 and other villagers was made under coercion as PW-1 admitted in his cross-examination that he slapped the accused twice or thrice when the accused blurted out the entire incident. The evidence of PW-1, PW-4 and PW-5 clearly reflects that initially the accused was not willing to confess, but after interrogation the accused confessed. PW-4 is the independent witness who stated categorically that the accused made the extra judicial confession before him. The evidence of PW-1, PW-4 and PW-5 reveals that the extra judicial confession was made to them sans the presence of police. PW-3 did not affirm such a confession sans presence of police.
38. The conduct of the accused after the incident which has been projected by the prosecution side cannot be considered to be an additional link. The accused was found in a hut, which is a kilometer away, and he used to rear cattle for his owner in the area.
39. The Additional Public Prosecutor laid stress in her argument that the conduct of the accused immediately after the incident is relevant. The accused was found missing from the village on the following day of the incident. On the previous evening the accused was seen with the deceased and on the next day the deceased was found dead in his house whereas the accused was found missing from the village. This argument of the Additional Public Prosecutor and the learned counsel for the appellant can be safely brushed aside. The accused was found in a hut where he used to stay at the time of rearing cattle for his owner. This has surfaced from the evidence of all the prosecution witnesses.
40. PW-1 categorically stated that on the following day when the accused was found missing from the village, they learnt that the accused left for the upper side of Lubrang area where he used to rear sheep or yak. They followed the accused and found him sleeping in the hut in the evening. This cross-examination also depicts that the PW-1 admitted that the accused used Page No.# 18/41 to stay in the village and sometimes he used to stay in the field where he used to rear cattle. PW-2 Lopa @ Pema Wangda who was also present with the accused and the deceased on the previous evening, testified that on the following night, some owner of the cattle interrogated the accused when he was found in a hut, where the accused used to stay while rearing cattle in the Lubrang area, and the accused admitted that he committed the offence. PW-3's evidence clearly depicts that the accused was found in the hut in Lubrang area which is a kilometer away from the PO, and the accused used to stay in this house, when he used to go for work. This evidence also reveals that the accused is a shepherd and he used to rear cattle. PW-5, Pem Thinely deposed that Pem Leiki told him that the accused was not present in the hut during the day. On the following evening of the incident, he (Pem Leiki) visited the hut and found the accused sleeping in the hut. Thus, the evidence of PW-1, PW-2, PW-3 and PW-5 clearly depicts that the accused was found in the hut where he used to stay at the time of rearing cattle which is a mixed breed of yak and cow. This is not a case where the accused fled to another village or fled to a secret place after the incident. The accused was found on the following evening or maybe in the afternoon, in the same hut, where he used to stay during his work. This cannot be considered to be a circumstance forming a chain and this cannot be considered to be a conduct as per Section 8 of the Evidence Act, being a circumstance, forming a chain of circumstances.
41. Now, the other question that falls for consideration is whether the disclosure statement can form the basis of conviction.
42. The learned Additional Public Prosecutor has relied on the decision of the Hon'ble Supreme Court in Yedala Subba Rao & Anr.-Versus-Union of India reported in 2023 (6) SCC 65 wherein it has been held that :-
"13. Now we will have to decide whether the disclosure statement dated 16th January 2019 is admissible in evidence. It is necessary to advert to the law laid Page No.# 19/41 down by a Bench of three Hon'ble Judges of this Court in the case of Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872. This Court followed a decision of the Privy Council in the case of Pulukuri Kottaya v. King Emperor (1946) SCC online Privy Council 47 which is a locus classicus. In paragraph no.5 of the decision in the case of Jaffar, this Court held thus:
"5. Under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of Section 411 IPC states to the police, "I will show you the articles at the place where I have kept them" and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that "I will show you the person to whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the article is kept. In neither case are the articles or the diamonds the fact discovered." (emphasis added)
14. As held by this Court, Section 27 of the Evidence Act is an exception to the general rule under Section 25 that a confession made by an accused to a police officer is not admissible in evidence. The first condition for the applicability of Section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information. Only such portion of the information given as is distinctly connected with the said discovery is admissible Page No.# 20/41 against the accused. Now looking at the Discovery Memo dated 16th January 2019, at the highest, it means that accused no.46 showed the shop from which the medicines were purchased. Thus, he led the police to the shop. There was no discovery of any fact as a result of the information supplied by accused no.46. The same is the case with the other allegation that accused no.46 showed a Xerox shop where accused no.47 and one Kiran were allegedly standing on 23rd September 2018. Therefore, the statements of accused no.46 that he would show the medical shop and the Xerox shop may not be, prima facie, admissible under Section 27 of the Evidence Act. Moreover, as noted in the order of the High Court granting bail to accused no.84, the said Kiran, who was allegedly standing with accused no.47 near the Xerox shop on 23rd September 2018 was already in custody from 18th September 2018 and he continued to be in custody even on 23rd September 2018."
43. In the decision of Yedala Subba Rao (supra), it has been held by the Hon'ble Supreme Court that :
"Only such portion of the information given as it distinctly connected with the said discovery is admissible against the accused."
44. The appellant was not formally arrested in connection with this case when he made the statement leading to recovery of weapon of offence. The evidence of PW-1, Dorjee Wangdi, PW-2, Lopa alias Pema Wangda, PW-3, Rinchin Tashi, PW-4, Pem Tashi and the I.O., PW-7, Sang Thinley, depicts that after the accused made the extra-judicial confession before the villagers and the police, the lock was broken and the door of the house of the deceased was opened and the deceased was brought down and the accused led to the recovery of the axe.
45. It is submitted by the learned counsel for the appellant/accused that this disclosure statement was not made in the custody of the police as mandated under Section 27 of the Evidence Act which reads as follows :-
"27. How much of information received from accused may be proved -
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of Page No.# 21/41 a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
46. It is further submitted that the entire procedure or investigation clearly reflects that the accused was arrested after the extra judicial confession was made.
47. Au contraire, the learned Additional Public Prosecutor has submitted that formal police custody is not required. A disclosure statement if made during interrogation by the police can be considered to be 'constructive or de facto custody' as the accused is under police surveillance, on being interrogated and is not free to leave. 'Custody does not only mean a formal arrest'.
48. It is further submitted by the Additional Public Prosecutor and by the learned counsel Mr. T.T. Tara that the P.Ex. 2 and P.Ex. 3 have been proved by the witnesses and the signatures of the appellant were also taken down on both the exhibits. Both the exhibits clearly reveal how the accused/appellant led to the recovery of the weapon of offence.
49. The decision of the Constitution Bench of the Hon'ble Supreme Court in State of Uttar Pradesh-Vesus-Deoman Upadhyay reported in AIR 1960 SC 1125 will clarify how a disclosure statement has to be accepted in evidence. It has been held by the Hon'ble Supreme Court in Deoman Upadhyay that :-
"62. It would appear from this that Section 27 of the Indian Evidence Act has been taken bodily from the English law. In both the laws there is greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him than for one who knows of the danger. In English law, the caution gives him the necessary warning, and in India the fact of his being in custody takes the place of caution which is not to be given. There is, thus, a clear distinction made between a person not accused of an offence nor in the custody of a police officer and on who is.
63. It remains to point out that in 1912 the Judges of the King's Page No.# 22/41 Bench Division framed rules for the guidance of the police. These rules, though they had no force of law, laid down the procedure to be followed. At first, four rules were framed, but later, five more were added. They are reproduced in Halsbury's Laws of England (3rd Edn.), Vol. 10, p. 470, para
865. These rules also clearly divide persons suspected of crime into those who are in police custody and those who are not. It is assumed that person in the former category knows his danger while the person in the latter may not. The law is tender towards the person who may not know of his danger, because in his case there is less chance of fairplay than in the case of one who has been warned.
64. It is to be noticed that in the Royal Commission on Police Powers and Procedure, (1928-29) CMD 3297, nothing is said to show that there is anything invidious in making statements leading to the discovery of a relevant fact admissible in evidence, when such statements are made by persons in custody. The suggestions and recommendations of the Commission are only designed to protect questioning of persons not yet taken in custody or taken in custody on a minor charge and the use of statements obtained in those circumstances.
65. The law has thus made a classification of accused persons into two (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second, category, only that portion of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says; "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft.
66. It is argued that there is denial of equal protection of the law, because if the statement were made before custody began, it would be inadmissible. Of course, the making of the statement as also the stage at which it is made, depends upon the person making it. The law is concerned in seeing fairplay, and this is achieved by insisting that a an unguarded statement should not be receivable. The need for caution is there, and this caution is very forcefully brought home to an accused, when he is accused of an offence and is in the custody of the police. There is thus a classification which is reasonable as well as intelligible and it subserves a purpose recognised now for over two centuries. When such an old and time-worn rule is challenged by modern notions, the bases of the rule must be found. When this is done, as I have attempted to do, there is no doubt left that the rule is for advancement of Page No.# 23/41 justice with protection both to a suspect not yet arrested and to an accused in custody. There is ample protection to an accused, because only that portion of the statement is made admissible against him which has resulted in the discovery of a material fact otherwise unknown to the police. I do not, therefore, regard this as evidence of unéqual treatment."
50. Reverting back to this case, it is held that the evidence reveals that the accused was not formally arrested when the disclosure statement was made. At the time of making his extra judicial confession followed by the disclosure statement, the weapons of offence were recovered and Exhibit P.Ex. 2 and P.Ex. 3 were prepared. The entire documents were exhibited and the witnesses along with the accused affixed their signatures on the so called disclosure statement. It was required to draw the attention of the witnesses present and the IO, only towards the sentence made while recovering or making a disclosure of the article hidden or kept by the accused after the offence. In the case on hand the entire statement of the accused and the entire procedure of disclosure which was recorded that too before arresting the accused formally, were exhibited. In this case, it would be perilous to accept the disclosure statement which was not recorded as per Section 27 of the Evidence Act. An arrest of the accused is described under Section 46 of the CrPC. Under the facts and circumstances of this case, the statement recorded by the I.O. leading to the recovery of the weapon of offence and other articles in connection with this case cannot be considered to be one of the circumstances forming a complete chain. This circumstance has not been proved conclusively as per law.
51. Moreover, two documents were exhibited as disclosure statements. Instead of showing only that part of the statement of the accused leading to the discovery of the weapon of offence, the entire statement and the procedure of recovery were shown to the witnesses and exhibited. The argument of the prosecution that exhibits, P.Ex.1 and P.Ex.3 are the disclosure statements which have been conclusively proved by the Prosecution can be safely brushed aside. The exhibit P.Ex.3 is marked as the Page No.# 24/41 recovery memo under Section 27 of the Evidence Act, whereas the exhibit P.Ex.2 is marked as the disclosure statement under Section 162(2) of the CrPC. The witnesses, PW-1, Dorjee Wangdi; PW-3, Rinchin Tashi; PW-4, Pem Tashi and I.O., Sang Thinley, PW-7, have proved their signatures as P.Ex.2(a), P.Ex.2(b), P.Ex.2(c) and P.Ex.2(d) respectively. The thumb impression of the accused was identified as P.Ex.2(c) by the I.O.
52. On the other document, referred to as a proceeding under Section 27 of the Evidence Act, the signatures of Dorjee Wangdi (PW-1), Rinchin Tashi (PW-3), Pem Tashi (PW-4) and Sang Thinley (PW-7) were proved by the witnesses themselves i.e., by PW-1, PW-2, PW-3 and PW-4 respectively. The entire exhibit, P.Ex.3 was exhibited and proved. The procedure adopted by the Prosecution in proving the disclosure statement is flawed. In this case, both the disclosure statement P.Ex. 2 and the recovery memo P.Ex. 3, are to be taken up conjointly as P.Ex. 2 is referred to as :-
"Disclosure Statement [u/s 162(2) Cr.P.C.] of - Dorjee Tsering Age : 21 years, S/O - Sri Dorjee Khandu, Village - Lubrang PO/PS Dirang District :-
West Kamreng, Case reference:- Vide PS Dirang case No. - 15/2020, u/s 302 IPC."
P.Ex.3 in this case is referred to as :-
"Recovery memo following the Proceedings laid U/S 27 of Indian Evidence Act Case reference :- Vide PS Dirang case No - 15/2020, u/s 302 IPC"
53. It is thus amply clear that as the entire part of P.Ex.2 and P.Ex. 3 was exhibited. Thus, the procedure adopted in proving the disclosure statement is flawed. Only that part of the statement distinctly connected with the recovery of the axe was required to prove the disclosure statement.
54. IO, PW-7, Sang Thinley testified that on the intervening night of 23.09.2020, he received information from Rinchin Tashi (PW-3) that a person Page No.# 25/41 was found hanging inside the house but the door was locked from outside. He believed it to be a UD case, but he went to the spot and found that the appellant/accused was already apprehended by the villagers. He interrogated the appellant, who admitted in presence of the other villagers that he had committed the offence. The accused/appellant confessed that as the deceased was unwilling to drink alcohol with him, he killed the deceased. He went to the place of occurrence and found the door to be locked from outside and he asked the accused about the key. The accused told him that the key was thrown in the jungle and so the lock was broken in presence of the villagers. They entered into the room and he noticed that the deceased was hanging by a rope. He noticed a sharp cut injury on the head and face of the deceased.
55. He prepared the inquest report in presence of the witnesses. Blood was splattered on the floor and he also noticed blood on the face and head of the deceased. On being queried, the accused took out the weapon of offence which was kept behind a door and then he seized the weapon of offence. He forwarded the body for post-mortem examination. The accused was an infamous person and he was seen with the deceased on the previous day, and then the accused was found missing from the village. The people strongly believed that the accused might have committed the offence. He recorded the statements of the witnesses and he prepared the sketch map. He made a video recording and thereafter he recorded the disclosure statement.
56. He filed supplementary charge-sheet P.Ex.7 and he proved his signatures on the supplementary charge-sheet as P.Ex.7(a) and 7(b). He proved the other charge-sheet as P.Ex.8 and his signatures on the charge- sheet. He identified the forensic report as P.Ex.9 and 10 and the seizure memo as P.Ex.11, which is the seizure memo of lifting the blood sample of the deceased. He proved P.Ex.11(a) as his signature. He proved P.Ex.12 as the seizure memo relating to seizure of INX, synthetic jackets, pair of pepe Page No.# 26/41 jeans and blood samples of deceased. He proved P.Ex.4(a) as his signature on P.Ex.4, seizure list which also reveals that a portion of the axe was chipped off and the axe had some blood stains on the edge. The axe had a wooden handle of about 2-3 feet in length and the total weight of the axe was about 1kg 620gms. He proved the seizure list relating to seizure of one synthetic jacket, a pair of pepe jeans and one plastic rope with two knots vide P.Ex.13 and his signature as P.Ex.13(a). However, in his cross- examination, PW-7 testified that the FSL report did not confirm that the blood sample belongs to the deceased. A scrutiny of the evidence of PW-7 reveals that the accused was not formally arrested before his disclosure statement was made.
57. In view of my foregoing discussions, it is thereby held that it would be perilous to accept that the disclosure statement has been conclusively proved under Section 27 of the Evidence Act. The evidence of PW-1 depicts that the police came to the place of occurrence on the next morning and thereafter the lock of the door was broken and the body of his brother was pulled down by the police in his presence. The evidence of PW-3, Lopa @Pema Wangda reveals that the police arrived on the next day of the incident. The evidence of PW-4 also depicts that on the next morning before the arrival of the police, he came to the place of occurrence and interrogated the accused who admitted of having committed the offence. Later on, the police also arrived and broke the lock and they saw the body of the deceased inside the house. Both PW-1 and PW-4 stated that the accused led to the recovery of the axe, which was used to kill the deceased. The evidence of PW-5 also reveals that the police came to the village on the next morning, but he could not remember the exact time of arrival of the police. He was present when the lock was broken by the police and the accused admitted that he killed the deceased with the axe and he produced the weapon of offence.
58. The evidence of PW-7 also clearly depicts that after collecting the evidence, he arrested the accused. Thus it is amply clear that the accused Page No.# 27/41 was arrested after the recovery of the weapon of offence. The I.O. proved P.Ex.23 as the arrest memo which clearly reveals that the accused was arrested on 24.09.2020 at about 12:30 hours. This proves that the police came in the morning and broke open the lock and thereafter, in the afternoon, the accused was arrested by the police after recovery of the weapon of offence. It has surfaced from the evidence that the accused was arrested formally after recovery of the weapon of offence. Exhibit P.Ex.23 (a) is the signature of the I.O. Sang Thinley, PW-7 and the signature of Lekhi Wanda was identified by the I.O. as P.Ex.23 (c). It is held from the foregoing discussions, that the decision of the Trial Court that although the accused was not in custody, the disclosure statement was conclusively proved, is not found to be sustainable.
59. It is trite law that in a case of circumstantial evidence, each and every circumstance has to be proved conclusively and only then the circumstances will form a complete chain. The last seen theory projected by the prosecution was also not conclusively proved as the time gap when the appellant was last seen with the deceased vis-a-vis the recovery of the body of the deceased in a different location is too wide. PW-2 was present with the accused and the deceased, when they broke into a fight. Lopa @ Pema Wangda deposed that he was with the accused and the deceased prior to the murder of the deceased by the accused. He was with the deceased along with Dor Passang in Dor Passang's house. Meanwhile, the accused came and joined them and they all had Aara (local alcohol). He, (PW-2), along with the deceased and the accused left the house of Dor Passang and reached the house of the deceased at about 8 p.m. The accused and the deceased then broke into a scuffle and they quarreled with each other as the accused, without the permission of the deceased, was looking for a mug to drink water. The deceased remarked that his conduct (of the accused) was good as an act of theft.
PW-2 however, dissuaded the accused and brought the accused to his Page No.# 28/41 house. On his way, the accused purchased some alcohol and came to his house.
60. PW-2 further deposed that he asked the accused to stay in his house but the accused who was carrying the alcohol left. On the next day, he received information that the accused did not go for work (milking yak). The deceased was also found to be missing from the village and the house of the deceased was found to be locked from outside. He then narrated the entire incident of the previous night to the villagers. Then, he along with the villagers set out on a frantic search for the accused and the deceased. When they reached the house of the deceased, he noticed the liquor purchased by the accused on the previous night, near the gate of the house. As soon as they saw the liquor bottle, they became anxious, as something was amiss. The window was not locked and Pem Tsering peeped through the window and noticed the body of the deceased in a hanging position. Sang Norbu was also present and he saw the body of the deceased and the police was informed. The door was not opened till the arrival of the police. On the following day, the police arrived and the door was opened and they found one axe and a stick.
61. PW-2 further deposed that at night, the accused was found in a hut in the Lubrang area where yak and cows are reared, and he was interrogated and he admitted that he had committed the offence. The accused disclosed that as the deceased refused to consume alcohol with him, he killed the deceased. PW-2 further deposed that the accused also admitted his guilt in his presence on the arrival of the police. On his admission, the police arrested him. He also showed the alcohol bottle to the police. The axe was found near the body of the deceased. PW-2 identified the axe with a tiny part chipped off, as material M.Ex.1, and it was shown to him at the place of occurrence. He also identified the jacket of the accused as M.Ex.3, which the accused had donned at the time of the incident. In his cross-examination, he testified that he did not see the accused going to the house of the deceased.
Page No.# 29/41 He also admitted that there was no animosity between the accused and the deceased. Thus, the evidence of the last seen witness, PW-2 clearly reveals that the incident occurred on the previous night and on the following day, the accused and the victim were found missing. By evening, the accused was found in a hut in Lubrang area where he used to rear cattle for the owner. The evidence of other witnesses reveal that the accused was brought to the place of occurrence by midnight at about 1 a.m. and by morning, the police arrived.
62. Thus, the body of the deceased was found on the following day and the accused and the deceased allegedly quarreled on the previous night. The deceased was last seen with the accused by PW-2 on the previous night. The time when the deceased was last seen alive in the company of the accused and the time when the body of the deceased was recovered is wide. As the body was recovered on the following day, the accused gets the benefit of doubt. Moreover, the accused was found in a different location where he used to go for work. The deceased was found in his own house.
63. At this juncture, we can gainfully refer to the decision of the Supreme Court in Anjan Kumar Sarma-Versus-the State of Assam in Criminal Appeal No. 560/2014, wherein it has been held that :-
"21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State Page No.# 30/41 of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:-
"34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a Page No.# 31/41 relatively wider time gap would not affect the prosecution case." As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.
22. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the Appellants of the charges of Section 302, 201 read with 34 IPC. The Appellants are directed to be set at liberty forthwith, if not required in any other case."
64. Reverting back to this case, it is held that the incident occurred in the evening of 22.09.2022 and the body of the deceased was found on the following day. This time gap, when the deceased was last seen alive with the accused, appears to be too wide and leaves sufficient scope to extend the benefit of doubt to the accused. The body was recovered on 23.09.2020 and the FIR was lodged on 24.09.2020.
65. In the light of the decision of the Supreme Court in Anjan Kumar Sarma's case (supra), it is held that the last seen theory is not applicable in this case. The fact that the deceased was last seen alive in the company of the accused on the previous night will not form a basis of conviction in this case.
66. In the foregoing discussions, it has been held that the extra judicial confession was not conclusively proved nor was the disclosure statement. The last seen theory is not applicable in this case to form the basis of conviction. The conduct of the accused after the incident is not relevant. The motive has been projected as a relevant fact in this case on hand.
67. Learned Additional Public Prosecutor has relied on the decision of the Hon'ble Supreme Court in Prem Singh Vs. The State of NCT Delhi reported in (2023) 3 SCC 372, wherein it has been held that:-
"15. As regards the relevancy of motive in a case based on Page No.# 32/41 circumstantial evidence, the weight of authorities is on principles that if motive is proved, that would supply another link in the chain of circumstantial evidence but, absence of motive cannot be a ground to reject the prosecution case. though such an absence of motive is a factor that weighs in favour of the accused. In Anwar Ali and Anr v. State of Himachal Pradesh: (2020) 10 SCC 166, this Court has referred to and relied upon the principles enunciated in previous decisions and has laid down as under:
24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v State of Bihar, 1995 Supp (1) SCC 80: 1995 SCC (Cri) 60 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu, (2010) 9 SCC 189 (2010) 3 SCC (Cri) 1179, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under:-
25. In State of UP. v. Kishanpal. (2008) 16 SCC 73 (2010) 4 SCC (Cri) 182, this Court examined the importance of motive in cases of circumstantial evidence and observed:
38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or cited them to commit the particular crime
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened Page No.# 33/41 even if the motive is not a very strong one ......'
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v.
State of T.N., (2009) 9 SCC 152 (2009) 3 SCC (Civ) 638:
(2010) 2 SCC (Cri) 1480).""
Application of the relevant principles to the facts of this case.
16. Keeping the aforesaid principles in view, when we examine the facts of this case and the concurrent findings of the Trial Court and the High Court, we find no substance in the contentions urged by learned counsel for the appellant 16.1. It is amply established on record that the deceased children, aged 9 years and 6 years respectively unnatural death and though the bodies were retrieved from canal, it had not been a case of their drowning but, as specifically proved by the post-mortem reports and the testimony of PW-14 Dr. VK Jha, the cause of their death had been asphyxia as a result of manual strangulation. There is nothing on record to disbelieve the testimony of PW-14 Dr. V.K. Jha. The only line of cross- examination of this witness had been as if he did not carry out post-mortem examination of the dead bodies of the victim children and that he manipulated the report at the instance of police We are unable to find any substance or logic in this line of cross-examination. The fact that the dead bodies of the victim children were indeed retrieved from canal is hardly a matter of doubt and has in red been established in the testimony of PW-18 SI Sunil Kumar, PW-17 Inspector Pratap Singh as also other private witnesses, including the relatives of the appellant and his wife. It had been too far-stretched to suggest that the medical officer did not examine the dead bodies of the victim children, as Page No.# 34/41 sent to him by the investigating officer or his having manipulated the report The evidence available on record, taken as a whole, leaves nothing to doubt that the victim children had been subjected to manual strangulation which resulted in their death. Obviously, their dead bodies were thereafter thrown in the canal to project as if it were a case of drowning.
16.2 The fact that the deceased children, when alive, were lastly in the company of the appellant alone is also not of much doubt or debate in this regard, even before looking at any other evidence, suffice it to notice that PW-9 Sunita Yadav, wife of the appellant, who otherwise did not support the prosecution case, clearly stated the crucial fact that on the day of incident, the children were left by her with the appellant She indeed stated that 'on the day of incident, I went to the house of my maternal uncle as my Nani was ill leaving my both the sons with their father/accused' She later on received the call from the police station about demise of her sons. Therefore, it remains rather undeniable that the deceased children were lastly in the company of the appellant alone.
16.3. In regard to the chain of circumstances in the present case, the statements of three independent witnesses PW-1 Naresh Kaushik, delivery boy at the Petrol Pump as also PW-4 Mahesh Kumar Sharma and PW-6 Komal Ram, the personnel in- charge at the Water Treatment Plant assume significance, who testified to the facts that the appellant did visit them immediately after he incident and specifically stated before them that his sons had accidentally fallen into the canal there is nothing on record to disbelieve the testimony of these witnesses. We have reproduced hereinbefore the statement of PW-1 Naresh Kaushik and it is noticeable that there had not been anything in his cross-examination which could create any doubt on his narration. Similar had been the position as regards the testimony of PW-4 and PW-6. In fact, PW-4 Mahesh Kumar Sharma was Page No.# 35/41 not cross-examined at all; and the cross-examination of PW-6 had also essentially been of a suggestion as if the accused- appellant did not meet him on the given day. When the statements of independent witnesses PW-1, PW-4 and PW-6 are read together with the statement of PW-9, wife of the appellant, not only the circumstance of the deceased children being lastly in the company of the accused-appellant is established but, further to that, it is also established that the appellant attempted to create a false narrative of accidental drowning of the children. This false narrative, in the facts of the present case, becomes another strong link in the chain of circumstances.
16.4 When the facts established by the evidence on record and the surrounding factors are put together, the chain of circumstances had unfailingly been that the deceased children were lastly seen alive in the company of the appellant, they died because of manual strangulation and obviously, their death was homicidal in nature; their dead bodies were recovered from the canal, and the appellant attempted to project that they had accidentally fallen into the canal. In the given set of circumstances, when the deceased children were in the company of the appellant, who was none else but their father and when their death was caused by manual strangulation, the burden, perforce, was heavy upon the appellant to clarify the facts leading to the demise of his sons, which would be presumed to be specially within his knowledge. Thus, the principles of Section 106 of the Evidence Act operate heavily against the appellant 16.4.1 It is, of course, the duty of prosecution to lead the primary evident of proving its case beyond reasonable doubt but, when necessary evidence had indeed been led, the corresponding burden was heavy on the appellant in terms of Section 106 of the Evidence Act to explain as to what had happened at the time of incident and as to how the death of the deceased occurred. There had not been any explanation on the Page No.# 36/41 part of the appellant and, as noticed, immediately after the incident, he attempted to create a false narrative of accidental drowning of the children. There had not been any specific response from the appellant in his statement under Section 313 CrPC either."
68. Relying on the decision in Prem Singh (supra), it is submitted by the learned Additional Public Prosecutor that the mens rea of the accused is relevant in this case. Earlier, in the evening, they had a fight and on the next day the body was found. The accused killed the deceased and tried to project it as a case of suicide by hanging. Moreover, the answers of the accused under Section 313 CrPC were evasive and no explanation was offered relating to the disclosure statement and the confession.
69. In the case on hand, the fight between the accused and the deceased cannot be considered to be the reason behind the motive of the accused to do away with the deceased. The cross-examination of PW-2 clearly reveals that there was no animosity between the accused and the deceased. In such a scenario, how can motive be factored in. In the instant case unlike Prem Singh's case (supra) the deceased was found in a different location. He was not required to discharge burden under Section 106 of the Evidence Act.
70. There is no doubt that death was homicidal in nature. Dr. Thuptan Dorje deposed as PW-9 that he performed the post-mortem examination on the deceased Pem Sangey and found blunt injury on the lower and upper jaw of the deceased, exposing teeth. He found ligature mark on the neck. The deceased also sustained multiple injuries on face caused by blunt object. He proved the autopsy report as P.Ex.26 and his signature as P.Ex.26(A). He also proved his signature on the document relating to lifting the blood sample from the body of the deceased, Pem Sangey as P.Ex.15(B) and P.Ex. 15 (C). According to this report, the cause of death was due to the head injury followed by asphyxia and strangulation. Thus, it is apparent that the victim Page No.# 37/41 was strangulated and he sustained fatal injury on his mouth and head. The axe according to the forensic report, however, did not contain any blood or human flesh. The I.O. identified the signature on the forensic report forwarded from the Directorate of Forensic Science.
71. Suspicion, however strong, cannot form the basis of conviction more so, when the evidence rests on circumstantial evidence. In this case, the circumstances do not form a complete chain. The extrajudicial confession is a weak piece of evidence and it has surfaced through the evidence of the witnesses that the confession was not voluntary. The disclosure statement was not proved in accordance with law and the statement was also not recorded in accordance with law. Strong motive or mens rea could not be projected by the Prosecution and if the circumstances are taken together, they do not form a complete chain as the motive projected by the prosecution also does not appear to be affirmed in a conclusive manner. The conduct of the accused as alleged by the prosecution was not found to be relevant in this case as the accused was found in a place where he usually went for work. The non-explanation of the accused to the questions on each of the circumstances projected by the prosecution through the evidence of the witnesses cannot be considered to be one of the circumstances, at least in this case.
72. It is true that the answers of the accused to the questions under Section 313(1)(b) of the CrPC appears to be evasive, but it has to be borne in mind that statements under Section 313 of the CrPC can be used only for contradiction and corroboration and not to draw strong inferences of circumstances.
73. It is argued by the prosecution side that the following circumstances have emerged through the evidence of the witnesses:-
(i) Last seen theory;
(ii) Conduct of the accused;
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(iii) Extra Judicial confession;
(iv) Disclosure statement;
(v) Motive; and
(vi) Evasive answers under Section 313 of the Cr.PC.
(vii) No contradictions under Section 145 of the Evidence Act.
74. Undoubtedly, circumstances have emerged against the accused but the accused gets the benefit of doubt in this case. It would be pertinent to reiterate that the accused was with Dor Passang and Pema Wangda on the previous evening and the accused broke into a fight with the deceased. On the following day, the deceased was found hanging by a rope from the loft of his house. The time when the deceased was last seen alive in the company of the accused is not narrow enough to hold the accused responsible for the death of the deceased. The extra judicial confession was not voluntarily made, and the disclosure statement was not properly recorded, nor was the leading to recovery of the weapon of offence proved in accordance with law. It has to be borne in mind that the IO also admitted as PW-7 that he did not seize the lock and the key, with the help of which, the house of the deceased was locked. Moreover, PW-1 admitted in his cross-examination that he lodged the FIR, after the accused made the extra judicial confession but in his FIR, Ext.-1, he did not mention the name of the accused. The author of the crime was referred to as an unknown person in the FIR. The digital evidence identified by IO, PW-7 as M.Ex.-5 to M.Ex.-15 were not proved in accordance with law. The chain of circumstantial evidence gets snapped, disintegrating the conduct of the accused after the night, when he was last seen with the deceased. An important witness in this case Page No.# 39/41 appears to be Dor Passang. Dor Passang or Dorjee Passang may be the same person who deposed as PW-10. The accused along with PW-2 Lopa @ Pema Wangda had Aara in Dor Passang's house on the night of the incident, but the prosecution failed to prove through the evidence of Dor Passang that prior to the alleged scuffle between the accused and the deceased, both the accused and the deceased as well as Lopa Wandga were present in Dor Passang's or Dorjee Passang's house.
75. A witness named as Dorjee Passang deposed as PW-10 that one evening he received information that the accused and the deceased were missing and he searched for them. Later on, one of the villagers saw the dead body of the deceased from the window of his house. The police was informed. The accused was found in a cowshed. The police broke the lock of the door and the body was recovered. The accused admitted in his presence and in the presence of the villagers that he killed the deceased. If Dor Passang is not Dorjee Passang, PW-10, then it was the prosecution's lapse.
76. It would be apt to mention that the evidence of an important witness as Dorjee Passang was not found to be sufficient to hold the accused guilty of the offence of murder, despite the fact that he was present when the accused made the extra judicial confession. Although no contradictions could be elicited through the cross- examination of the witnesses, but as the circumstances projected by the prosecution do not form a complete chain, the benefit of doubt has to be extended to the accused. Each and every circumstance was not conclusively proved.
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77. It has been held in the case of Sarad Birdhichand Sarda (supra) that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is not so in this case. It is held that the facts so established are not consistent only with the hypothesis of the guilt of the accused. Circumstances are not of a conclusive nature and tendency, excluding any possible hypothesis except the one to be proved. The chain of circumstances was not found to be complete.
78. In the light of the decision of the Hon'ble Supreme Court in Sarad Birdhichand Sarda (supra), the benefit of doubt is extended to the accused.
79. In the wake of the foregoing discussions, we are of the opinion that the benefit of doubt has to be extended to the accused.
80. It is thereby held that the prosecution failed to prove beyond reasonable doubt that the accused committed murder of the deceased by intentionally causing his death and the prosecution also failed to prove beyond reasonable doubt that the accused caused the disappearance of evidence by hanging the body of the deceased inside his house and thereafter, locking the door of the house with intent to screen himself from legal punishment.
81. Thereby, the accused/appellant, Dorjee Tsering is acquitted from the charges under Sections 302/201 of the IPC on benefit of doubt and is set at liberty forthwith. The appellant may be released if he is not wanted in any other case.
82. We appreciate the assistance provided by the learned Amicus Curiae Page No.# 41/41 and recommend for payment of the honorarium.
83. Send back the Trial Court Records.
JUDGE JUDGE Comparing Assistant