State Of Himachal Pradesh vs Chander Sharma on 23 September, 2025

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Himachal Pradesh High Court

State Of Himachal Pradesh vs Chander Sharma on 23 September, 2025

Neutral Citation No. ( 2025:HHC:33005 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA DSR No. 1 of 2018 with Cr. Appeal No. 387 of 2018 Reserved on: 11.08.2025 Date of Decision: 23.09.2025 DSR No. 1 of 2018 State of Himachal Pradesh ...Appellant Versus Chander Sharma, and others ...Respondents For the Appellant : Mr Jitender Sharma, Additional Advocate General with M/s. J.S. Guleria and Priyanka Chauhan, Deputy Advocates General.

For the Respondents : M/s Sartaj Singh Narula, Arshdeep Singh Cheema and Prince Chauhan Advocates.

........................................................................................................................ Cr. Appeal No. 387 of 2018

Chander Sharma and others                              ...Appellants
                             Versus
State of Himachal Pradesh                             ...Respondent


For the Appellants      :    M/s Sartaj Singh Narula, Arshdeep
                             Singh Cheema and Prince Chauhan,
                             Advocates.


For the State of H.P.   :    Mr. Jitender Sharma, Additional
                             Advocate General, with M/s J.S.
                             Guleria and Priyanka Chauhan,
                             Deputy Advocates General.
                                                 2
                                                    Neutral Citation No. ( 2025:HHC:33005 )



    Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1                   Yes.



    Rakesh Kainthla, Judge

The learned Sessions Judge, Shimla (learned Trial Court) has made the present death reference.

2. The appellants (accused before the learned Trial Court) have also filed a separate appeal. Since the death reference and the appeal have arisen from the common judgment and proceedings; hence, both matters are being taken up together for convenience. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

3. Briefly stated, the facts giving rise to the present appeal and death reference are that the police presented a challan against the accused for the commission of offences punishable under Sections 364-A, 347, 302, 201, 202, 506, and 120-B of the Indian Penal Code (in short 'IPC'). It was asserted that Yug (since deceased) was residing at Dwarkagarh with his father 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 3

Neutral Citation No. ( 2025:HHC:33005 ) Vinod Gupta (PW70), mother Pinki Gupta (PW64) and two sisters, namely, Bhumi and Tisha. On 14.6.2014, a 'Jagran' was organised in Puran Mal Dharamshala, Cart Road, Shimla. Vinod Gupta left for 'Jagran' at about 6:30 pm. Pinki Gupta and her children were to go to 'Jagran' after some time. Pinki Gupta asked her daughters to search for Yug and bring him so that he could get ready. The daughters searched for Yug and told their mother that Yug could not be found anywhere. Pinki Gupta informed her husband that Yug was missing. Vinod Gupta returned to his home. He and Pinki Gupta (PW64) searched for Yug but could not find him. A report was made to the police, and the police recorded entry No. 69, dated 14.6.2014 (Ext.PW2/C). The police searched for Yug and advised his parents to search for him in the house of their relatives; however, Yug could not be found. Pinki Gupta (PW64) made a statement (Ext. PW64/A), which was sent to the police station where FIR (Ext.PW2/A) was registered. Nag Dev (PW9) conducted the initial investigation. He prepared the spot map (Ext. PW9/B) of the house of Vinod Gupta (PW70). He searched for Yug but could not find him.

4. On 27.6.2014, Vinod Gupta (PW70) went to Theog to search for his son Yug. Arvind Kumar (PW44), servant of Vinod 4 Neutral Citation No. ( 2025:HHC:33005 ) Gupta, informed him that he had found a letter (Ext.PW5/A), in which a demand of ₹ 3.60 crore was made. It was directed in the letter that a white cloth should be put up on the shutter of the shop in case the demand was acceptable to Vinod Gupta. Kardhani (Ext.P1) and Amulet of Yug (Ext. P2) were attached to the letter. It was also mentioned in the letter that an audio chip containing the voice of Yug was annexed, but no such chip was found with the letter. Vinod Gupta informed Inspector Babu Ram (PW10) about the receipt of the letter, who advised him to do as directed in the letter. He (Inspector Babu Ram) discussed the matter with his Senior Officers. Police teams were constituted. The ransom note had directed Hari Om (PW45), the servant of Vinod Gupta, to take the ransom money to Ambala Railway Station. The amount was put in a briefcase, and Hari Om went to Ambala with the money. The police team followed Hari Om; however, no one came to collect the ransom amount. Hari Om returned with the money.

5. Inspector Babu Ram (PW10) conducted further investigation. He searched for Yug at various places. Vinod Gupta received another letter (Ext. PW5/B) in which it was mentioned that the amount of ransom was increased to ₹ 4.00 crore. Vinod 5 Neutral Citation No. ( 2025:HHC:33005 ) Gupta was directed not to contact the police. He was threatened that his daughters, Bhumi and Tisha, would also be kidnapped in case the police were informed, and the dead body of his son, Yug, would be sent.

6. On 4.8.2014, another letter (Ext. PW70/B) in an envelope (Ext. PW70/C) was received, in which the ransom amount was increased to ₹ 10.00 crore. Vinod Gupta was threatened that Yug and his daughters would be killed in case the intimation was given to the police. Vinod Gupta was directed to put a white bed sheet outside his home in case the demand was acceptable to him. He did as directed, but no further intimation was received regarding the steps to be taken thereafter.

7. Vinod Gupta received calls on 9th, 15th and 18th August from mobile No.xxx xx519. The caller demanded a ransom of ₹ 20.00 lac. The police found Sanjeevan Jaiswal to be the owner of the SIM. The police arrested and interrogated him, but he could not disclose anything about Yug.

8. A Special Investigation Team (SIT) consisting of Vijay Sharma, Deputy Superintendent of Police (PW82), Inspector Virender Chauhan (PW83), Sub Inspector Manoj Kumar, Assistant Sub Inspector Rajesh Kumar, Head Constable Bhaghi 6 Neutral Citation No. ( 2025:HHC:33005 ) Rath and Head Constable Umeshwar visited the spot on 9.9.2014 and seized the ransom letters received by Vinod Gupta, Silver amulet, Silver Kardhani and a black thread having a ring in it vide seizure memo (Ext. PW70/A). Vijay Sharma (PW-82) put the silver amulet, silver kardhani, kamarband and black thread, along with the ring, in a cardboard box and sealed the box in a parcel. He put the letters in one envelope. He put the envelope (in which the letters were sent) in the second envelope and sealed both the envelopes with nine seals of seal 'H'. He obtained the specimen seal impression (Ext. PW70/D) on a separate piece of cloth.

9. Vinod Gupta received another ransom letter on 10.9.2014, along with an envelope. It was also seized by the police.

10. All the ransom letters and the envelopes were sent to the Fingerprints Bureau, Delhi.

11. An application for conducting the Narco Analysis Test of Arvind, Hari Om and Sanjeevan Jaiswal was made before the learned Chief Judicial Magistrate, Shimla. Sanjeevan Jaiswal declined to undergo a narco analysis test, whereas Hari Om and Arvind consented to the same.

Neutral Citation No. ( 2025:HHC:33005 )

12. Various calls were received by Sushil Gupta (uncle of Yug) on his mobile from mobile number xxxx 266 on 17th, 22nd, 23rd, 24th and 30th January 2015, and a demand of ₹ 30.00 lac was made by the caller. The SIM was traced to Jethu Ram, who disclosed that he had lost the SIM. The caller made another call to Sushil Gupta and directed him to keep the money at Kunihar Gambhar Bridge. The money was kept as directed, but nobody came to collect the money.

13. A report of the narco analysis test (Ext. PW82/E) of Hari Om and Arvind was received, in which it was mentioned that Kaku, Munna and Sanjeev Sharma were taking a keen interest in the negotiations and the ransom letters. There was a possibility that Kaku, who had persuaded Hari Om to convey Vinod Gupta to give the ransom money, had a vested interest in the kidnapping. Kaku could have kidnapped the child for money to fulfil his desires. Sanjeev Sharma, residing in the same building and knowing about the ransom letters, should also be interrogated.

14. Chander Sharma @ Kaku, Tejinder Pal Singh @ Lijju, and Vikrant Bakshi were arrested vide FIR No. 6/2015, dated 22.1.2015, registered for the commission of offences punishable under Sections 457 and 380 of IPC for committing theft in the 8 Neutral Citation No. ( 2025:HHC:33005 ) office of E-commerce Couriers. The police interrogated them and recovered the stolen articles from their possession. Police analysed their call detail records and found that all of them were present near the place of the incident till about 9/9:30 pm. They left towards Sanjauli/Navbahar at around 9/9:30 pm. Chander Sharma and Tejinder Pal Singh returned to the place of the incident at around 11/11:30 pm, whereas Vikrant Bakshi remained at Navbahar. Tajinder Pal Singh reached Navbahar at around noon and stayed at Navbahar till 10:00 am the next day. He was in touch with Chander Sharma during the night through his mobile phone. Tejinder Pal Singh and Vikrant Bakshi were present in the same area the next night from 1:00 am to 5:00 am, and they were in touch with Chander Sharma during this time. Tejinder Pal Singh and Vikrant Bakshi left for their home at about 5:00 am. It was also found during the investigation that Chander Sharma and Tejinder Pal Singh reached Ram Bazar at about 11:00 pm. Chander Sharma met Vinod Gupta and remained with him. He got information about every activity of Vinod Gupta. Kishore Kumar, uncle of Vinod Gupta, asked Chander Sharma not to get involved in the family affairs. It was also found from the call details records that Chander Sharma had sent an SMS to Tejinder 9 Neutral Citation No. ( 2025:HHC:33005 ) Pal Singh on 27.6.2014 when the ransom letter was received by Vinod Gupta. The call details record of Chander Sharma revealed that he was present at those places from where the ransom letters were sent.

15. The police interrogated Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi separately. The specimen handwriting of Chander Sharma was obtained. Chander Sharma gave different answers during the interrogation. Tejinder Pal Singh stated that he was present in his shop on the date of the incident and had visited Ram Bazar with Chander Sharma at around 11/11:30 pm. They could not reveal their whereabouts from 9:00 pm to 11:00 pm. Further investigation was handed over to Dhansukh Datta (PW105). He applied for the narco analysis of Chander Sharma and Tejinder Pal Singh. They were taken to the Directorate of Forensic Science, Gandhi Nagar, Gujarat, for the narco-analysis; however, they were found to be medically unfit to undergo the narco-analysis. The police also found that Chander Sharma had disclosed to various people that he was an Advocate and an employee of the International Human Rights Commission; however, he was neither an Advocate nor an employee of the International Human Rights Commission. The bank account 10 Neutral Citation No. ( 2025:HHC:33005 ) statements of Chander Sharma were obtained from the bank. The police also found that Chander Sharma had hired HIG Flat No. 22 in 2014, and he resided in the Flat from March 2014 till October 2014. The police arrested Chander Sharma and Tejinder Pal Singh. The police obtained their specimen signatures in the presence of learned Magistrates. The police also obtained their admitted signatures from the Ava Lodge College. These were sent for analysis to FSL, Junga. The mobile phone of Chander Sharma was sent to FSL, Junga and keywords like 'Bacha, Baap, Paisa and Pakde' were found in the cache memory of the keypad of the mobile phone. Flat No. 22 was searched by the police on 18.7.2016 in the presence of owner Amit Pal Singh (PW52). The police recovered one partially written letter, which looked like a ransom letter, green paper sheets containing some writings and the Aadhar Card of Radhey Shyam. The police verified the name and address on the Aadhar card, but they were found to be fake. The specimen handwriting of Chander Sharma and Tejinder Pal Singh was taken. Amit Pal Singh revealed during the investigation that Chander Sharma had made the payment for the rent for the house online. His bank details record was seized by the police. It was found that ₹ 25,000/- was transferred by 11 Neutral Citation No. ( 2025:HHC:33005 ) Vikrant Bakshi from his account to the account of Amit Pal Singh. The mobile phones seized by the police of Police Station, New Shimla, were transferred to the present case.

16. Dhansukh Datta (PW105) proceeded on leave, and further investigation was conducted by Deputy Superintendent of Police, Bhupender Brakta (PW104). The SFSL Team again searched Flat No. 22 on 17.8.2016 in the presence of Amit Pal Singh and recovered a piece of packing tape, woollen gloves, one pair of slippers, one pair of gloves, a bed sheet, a packing tape roll, 65 green papers, one of which had some writing, and two papers had some drawings. Vinod Gupta identified the slippers to be belonging to Yug.

17. Vikrant Bakshi, Chander Sharma and Tejinder Pal Singh were associated with the investigation on 22.8.2016. Vikrant Bakshi made a disclosure statement that he and the co- accused had kidnapped the child on 14.6.2014 and took him to Flat No. 22, Housing Board Colony, Jakhu, in the vehicle bearing registration no. HP-03D-8080. He had taken the photographs and prepared the video recording on 21.6.2014. They had thrown Yug into the water tank at Keleston, Shimla. Vikrant Bakshi, Chander Sharma and Tejinder Pal Singh were arrested on 12 Neutral Citation No. ( 2025:HHC:33005 ) 22.8.2016. They made their statements under Section 27 of the Indian Evidence Act and led the police to the water tank in Keleston. The tank was emptied in the presence of officials of IPH and a team of SFSL. The police recovered a piece of concrete, which was tied with a plastic strip. The police also recovered the bones and SIM card. Some bones of the skull, jaw and other parts were found near the concrete stone leading to the tank. The police seized them. The water from the tank was taken for a diatom test. The bones were analysed at IGMC, and a report was issued stating that the bones were of a human being, and as per the radiology report, the estimated dental age of the human being was 4-5 years. The SIM card was checked by the AIRTEL Mobile Company, but no record could be found.

18. On 25.8.2016, accused Tejinder Pal Singh got recovered the knife from Flat No.22, which was seized. The place from where the piece of concrete was picked up by the accused was shown by Chander Sharma, and one piece was picked up as a sample. Chander Sharma revealed that he had prepared an identity card of the International Human Rights Commission himself with the help of his computer. A soft copy of the card was lying in his Gmail account, which he could get recovered. Police 13 Neutral Citation No. ( 2025:HHC:33005 ) seized the laptop of Chander Sharma. The police also seized the vehicle bearing registration no. HP-03D-8080. The blood samples of the parents of Yug were taken for DNA profiling.

19. The police found, after the investigation, that Yug was residing on the 4th floor and Chander Sharma resided on the 7th floor of the Dwarkagarh building. Bhumi and Tisha, sisters of Yug, used to take tuition from Anjana Sharma, the mother of Chander Sharma. Vinod Gupta was running a wholesale shop adjacent to Dwarkagarh, and Chander Sharma was aware of his financial condition. Tejinder Pal Singh had taken a godown on rent on the 5th floor of the Dwarkagarh building. Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi were close friends, and they used to remain in touch with each other as per the call details record. Chander Sharma had taken Flat No.22, Housing Board Colony, Jakhu, on 5.4.2014 till October 2014. Chander Sharma proclaimed himself to be an Advocate and an employee of the International Human Rights Commission. Yug was playing in the courtyard of the Dwarkagarh building on 14.6.2014. Suddenly, it started raining and everyone ran inside the house. Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi were present in the Dwarkagarh building as per their call 14 Neutral Citation No. ( 2025:HHC:33005 ) details record between 7:30 pm and 8:30 pm. Yug was kidnapped at that time. The accused were in touch with each other after 9:00 pm. Their location was found in the Navbahar area between 10/10:30 pm. Chander Sharma and Tejinder Pal Singh went to Navbahar at around 11:00 pm, whereas Vikrant Bakshi remained at Navbahar. Vikrant Bakshi and Tejinder Pal Singh were in touch with each other between 11:30 pm to 12:00 am. Chander Sharma also remained near the place of the incident. He remained in touch with Tejinder Pal Singh throughout the night. They were also in touch with each other on 15.6.2014. Vikrant Bakshi and Tejinder Pal Singh remained at Navbahar from the evening of 15.6.2014 till the morning of 16.6.2014. Chander Sharma was also found in the vicinity. They were in contact with each other from 1:00 am to 5:00 am. Chander Sharma was present at Navbahar on 16.6.2014 between 11:00 to 12:00 pm. Tejinder Pal Singh and Vikrant Bakshi were also present in Shimla, and they were in touch with each other. Chander Sharma had also called Vinod Gupta during this time. The Cell ID of Longwood, Shimla, was found in the call details record of Tejinder Pal Singh at 11:30 pm on 19.6.2014. Vikrant Bakshi remained within the range of the Navbahar tower between 15 Neutral Citation No. ( 2025:HHC:33005 ) 14.6.2014 to 22.6.2014. Flat No. 22 falls within the range of the Navbahar tower. The call details record showed that Vikrant Bakshi was at Kufri on 21.6.2014 between 8:30 pm and 11:00 am. Tejinder Pal Singh was found in the village of Jakha. Chander Sharma was found near the Ritz, and they were in touch with each other. The location of Tejinder Pal Singh was found at Chaura Maidan on 22.6.2014, from where the concrete slab used for throwing Yug was picked up. The presence of Tejinder Pal Singh was found at Longwood on 22.6.2014 between 1:30 to 1:50 am. He had called Vikrant Bakshi thrice during this time. As per the statement recorded under Section 27 of the Indian Evidence Act, the call was made while throwing Yug into the tank. Chander Sharma started collecting information regarding the financial condition of Vinod Gupta. The upper portion of the shutter of the shop of Vinod Gupta is visible from the house of Chander Sharma. Chander Sharma had sent an SMS after the ransom letter was received. It was convenient for Chander Sharma to put the ransom letter beneath the shutter during the nighttime. Chander Sharma had made enquiries from Hari Om regarding the taking of money to Ambala on 28.6.2014. The letter was posted from Ambedkar Chowk, Chaura Maidan on 3.7.2014, 16 Neutral Citation No. ( 2025:HHC:33005 ) and as per the call details record, Chander Sharma was present at Chaura Maidan on 2.7.2014 and 3.7.2014. The police were keeping an eye on the shop of Vinod Gupta from the house of Bal Krishan @ Billu. The ransom letter dated 3.8.2014 mentioned this fact, which could only have been known to Chander Sharma, as he was a resident of the same building. The 4th ransom letter was posted on 8.9.2014 from Summer Hill, Shimla. Chander Sharma had identified the letterbox from which the letter was posted. The letters are stated to have been written by Chander Sharma as per the report of SFSL. The slippers of Yug were found in Flat No.22, which was taken on rent by the accused. Similar letters and stationery were recovered from the same house. The photographs and video recordings of the child, Yug, were found in the mobile phone of Vikrant Bakshi, which were taken on 21.6.2014 at about 8:30 and 9:00 pm. The call details record confirmed the presence of Tejinder Pal Singh and Vikrant Bakshi at Navbahar. Flat No.22 also falls within the range of the tower. The accused had shown every place where the child was taken by them. Chander Sharma represented himself to be an Advocate and Member of the International Human Rights Commission, so he became aware of the various steps being taken by the police. 17

Neutral Citation No. ( 2025:HHC:33005 ) The accused had thrown the child alive into the water tank, which was confirmed by the report of the post-mortem examination, therefore, the police filed the charge sheet against the accused for the commission of offences punishable under Sections 364-A, 347, 302, 201,202, 506 and 120-B of IPC before the learned Chief Judicial Magistrate, who committed it to the Court of Sessions for Trial.

20. The learned Trial Court charged the accused with the commission of offences punishable under Sections 364-A, 347, 302, 201, 202, 506 read with section 120-B of IPC, to which the accused pleaded not guilty and claimed to be tried.

21. The prosecution examined 105 witnesses to prove its case. Constable Rajiv Patial (PW1) carried the statement of Pinki Gupta to the Police Station. Inspector Kamaldeep (PW2) registered the FIR based on the statement of Pinki Gupta. Umashankar (PW3), Arun Kumar Gupta (PW4) and Ashok Kumar (PW5) deposed about the fact that Yug was missing, the steps taken by the family members to search for him, the involvement of Chander Sharma during the search and various inquiries made by him. Vimal Rattan (PW6) is a friend of Vikrant Bakshi who had visited Flat No.22 to celebrate the birthday party of Vikrant 18 Neutral Citation No. ( 2025:HHC:33005 ) Bakshi. He also deposed that Chander Sharma used to proclaim himself as an employee of the International Human Rights Commission. Akash Gupta (PW7) deposed about the purchase of luxury cigarettes by Chander Sharma from his shop and the missing of Yug. Himanshu Khanna (PW8) deposed about the behaviour of Chander Sharma and that he had gifted a mobile phone worth ₹ 50-55 thousand to Vikrant Bakshi on his birthday. ASI Nag Dev (PW9) and Inspector Babu Ram (PW10) conducted the initial investigation. Vikram Nanda (PW11) proved the sale of a mobile phone to Chander Sharma. Janesh Kumar (PW12) proved the purchase of a secondhand mobile, the Micro Max, from the shop of Gaurav (PW13). Jaspreet Singh (PW14) proved the seizure of the bill book from Vikram Nanda. Ankush (PW15) handed over the information sought by the police regarding Chander Sharma. Mangla Sood (PW16) proved the bank account statements of Amit Pal Singh. Rohit Bhardwaj (PW17) proved the accounts statement of Chander Sharma. Amit Grower (PW18) is the witness to the recovery of the admission register and assignment notebook of Chander Sharma. Sudarshan Kumar Saini (PW19) submitted the account statements and transaction statements of Vikrant Bakshi and the transfer of an amount to 19 Neutral Citation No. ( 2025:HHC:33005 ) Amit Pal Singh. Saroj Kumar (PW20) proved the seizure of the water sample from the tank located at Keleston. Sunder Singh (PW21) proved the sale deed in favour of Amrit Pal Singh and his wife. Sanjay Kumar (PW22) is the witness to the seizure of the sale deed. Sanjeev Gupta (PW23) proved that the Photostat paper and tracing paper were sold by him. Hanumant Rai (PW24), Devender Verma (PW25), and Ankur Pathak (PW26) proved the customer application form and call details record. Sandeep Kumar (PW27) developed the photographs. Shweta (PW28) proved the FIR No. 6/15. HHC Prem Chand (PW29) handed over the attested copy of the register numbers 19 and 21 of FIR No. 77 of 2014 to the police. Constable Piyush Raj (PW30) and HC Ranjeet Singh (PW31) carried the case property to SFSL Junga. HC Umeshar Singh (PW32) was posted as MHC with whom the case property was deposited. ASI Chet Ram (PW33) witnessed the recovery of the laptop and the vehicle. Deepak Kumar (PW34) is the witness to the search of Sanjeevan Jaiswal. He also prepared the geographical location chart of the cell IDs. Bal Krishan (PW35) is the neighbour of Vinod Gupta, whose house was used by the police to keep a watch on the shop of Vinod Gupta. Kundan Singh (PW36) brought the record of FIR No. 6/15 from the Police 20 Neutral Citation No. ( 2025:HHC:33005 ) Station, New Shimla. Puran Dass (PW37) was posted as a Junior Engineer with the Municipal Corporation, Shimla. He was present at the time of the recovery of the bones and concrete slab from the tank. Pratap Thakur (PW38) prepared a Jamabandi of the water tank. Santosh Kumari (PW39) produced the birth certificate of Yug. Deepak Kumar (PW40) did not support the prosecution's case. Ravinder Kumar (PW42), Hari Ram (PW41), and Amar Singh (PW43) were working in the water supply department of the Municipal Corporation, Shimla. They proved that the bones were recovered while cleaning the tank, which were thrown away near the tank. Arvind Kumar (PW44) is an employee of Vinod Gupta, who had found the initial ransom notes. Hari Om (PW45) is another employee of Vinod Gupta, who carried the ransom money to Ambala. HC Santosh Kumar (PW46) proved the notice issued by the police for tracing Yug. Anup Vaid, Ward Member (PW47), witnessed the recovery of various articles on 17.8.2016. Harish (PW48) is the caretaker of Flat No.22. He witnessed various recoveries made on 18.7.2016. Pradeep Kumar Gupta (PW49) accompanied Vinod Gupta when the photographs of Yug were handed over to the police. He also proved the recoveries of different articles made by the police. Dr Amar 21 Neutral Citation No. ( 2025:HHC:33005 ) Chand (PW50) obtained the blood samples of Pinki and Vinod Gupta for DNA analysis. Dr. Sangeet Dhillon (PW51) examined the bones recovered by the police. Amit Pal Singh (PW52) is the owner of Flat No.22. Krishan Dutt (PW53) is the Pradhan of Gram Panchayat, Bhont, who witnessed the recovery of the bones from the water tank at Keleston. Constable Rohit Sharma (PW54) and Constable Ravinder Kumar (PW55) proved the entries in the daily diary. HC Sita Ram (PW56) was posted as MHC, who entered the contents of the statements of Pinki Gupta into the official computer. Dila Ram (PW57) was the In-charge of Malkhana, Police Station, Sadar, with whom the case property was deposited. Sunil Kumar (PW58) witnessed the recovery of the vehicle bearing registration no. HP-03D-8080. HHC Gopal Singh (PW59) was posted in the Police Station, CID, Bharari, and carried the case property to SFSL Junga. HC Sahi Ram (PW60) carried the case property to SFSL Junga. ASI Prakash Chand (PW61) was posted as MHC, CID Bharari, with whom the case property was deposited. HC Balbir Singh (PW62) witnessed the recoveries. Satya Prakash (PW63) videotaped the demarcation given by the accused. Pinki Gupta @ Krishna (PW64) is the mother of Yug. Mr. Ranjeet Singh, Chief Judicial Magistrate, 22 Neutral Citation No. ( 2025:HHC:33005 ) Shimla, recorded the statements of the accused. Amardeep Singh (PW66) was posted as Addl. Chief Judicial Magistrate, Shimla, in whose presence the specimen handwritings were taken. Gurleen Kaur (PW67) is the wife of Amit Pal Singh, and she handed over the keys of Flat No. 22 to Chander Sharma. Rajat Kapoor (PW68) printed the missing posters of Yug. Dr Neeta Sharma (PW69) examined the jaw recovered from the water tank. Vinod Kumar Gupta (PW70) is the father of Yug. Hanumat Rai (PW71) produced the customer application. Meenu Rana (PW72) was posted as a Nodal Officer with Tata Docomo. She produced a customer application form of Chander Sharma. Devender Verma (PW73) issued the report regarding the tower location/signal of the Bharti Airtel Tower. Ankur Pathak (PW74) submitted a report regarding the tower location of Reliance Communications. Yuv Raj Saxena (PW75) prepared the tower location of Aircell. Dr. Arun Sharma (PW76) and Dr. Jagjeet Singh (PW77) are the Forensic Experts who issued different reports. Anil Chandel (PW78) provided the mobile number of Tejinder Pal Singh. Sunder Singh (PW79) brought the record of the registration of the sale deed in favour of Amit Pal Singh and Gurleen Kaur. Arvind Padam (PW80) supplied the information regarding the 23 Neutral Citation No. ( 2025:HHC:33005 ) ration card. HHC Suresh Kumar (PW81) carried the case property to SFSL Junga. Dy.SP Vijay Kumar Sharma (PW82) was a Member of the Special Investigation Unit (SIU) and conducted a partial investigation. Inspector Virender Chauhan (PW83) is the witness to the recovery of the ransom letters and the envelopes. Visheshwar Sharma (PW84) is the handwriting expert who examined the disputed, specimen and admitted handwriting. ASI Bhagirath Sharma (PW85) is another witness to the recovery of the ransom letters. Balwant Singh (PW86) proved various recoveries made from the accused, Tejinder Pal Singh. HC Nika Ram (PW87) was posted as MHC in the Police Station, New Shimla. The mobile phones were deposited with him. Rahul Sharma (PW88) conducted the partial investigation. Nasib Singh Patial (PW89) is the Forensic Expert who visited the spot and issued the report. He also issued other reports of analysis of material objects submitted to him. Vivek sehaj pal (pw90) is the forensic expert who issued the reports of DNA analysis. Sonal Thama (PW91) was posted as Judicial Magistrate before whom an application for transferring the case property in FIR No. 6/15 to the present case was filed, and which was allowed by her. LHC Shanta (PW92) produced the case property in FIR No. 6/15 before 24 Neutral Citation No. ( 2025:HHC:33005 ) the Judicial Magistrate, Sonal Thama. Ram Lal (PW93) issued the Jamabandi of Muhal Keleston. Rahul Chatterjee (PW94) proved that the transit accommodation was allotted to Narinder Kumar Bakshi. HC Ramesh (PW95) recorded the statement of Pinki under Section 154 of the CrPC. Jai Prakash (PW96) issued the bill regarding the purchase of the mobile phone of Chander Sharma. Inspector Maneesh Chauhan (PW97) investigated FIR No. 6/15 and proved the recovery of the mobile phones from the accused. Ishant Sharma (PW98) proved the account opening form and bank statement of Vikrant Bakshi. ASI Subhash Kumar (PW99) is the witness to the disclosure statement and consequent recoveries. Meer Bashim (PW100) proved the cheques. SI Rajesh Kumar (PW101) conducted the investigation partially. ASI Anil Kumar (PW102) is a witness to various recoveries. He also recorded the statements of some of the witnesses. SI Suresh (PW103) witnessed various recoveries. Bhopinder Brakta (PW104) and Dhansukh Datta (PW105) conducted the investigation partly.

22. The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. Accused Chander Sharma stated that he was innocent 25 Neutral Citation No. ( 2025:HHC:33005 ) and falsely implicated. The witnesses deposed against him as they were relatives of Yug and the police officials. Accused Tejinder Pal Singh stated that the case could not be solved by the police; therefore, the police falsely implicated him. Similarly, accused Vikrant Bakshi stated that he was falsely implicated in the present case as well as in FIR No. 6/2015.

23. The Learned Trial Court held that Vinod Gupta was residing with his family, consisting of his wife, his mother, two daughters and one son, namely, Yug in the Dwarkagarh building. He had a flourishing business in Shimla. His financial condition was good. Chander Sharma was residing in the same building. House No. 22 Housing Board Colony, Jakhu, Shimla, was owned by Amit Pal Singh. His wife, Gurleen Kaur, handed over the key to this house to Chander Sharma, who paid ₹ 10,000/- to her. The birthday of Vikrant Bakshi was celebrated in this house, and an expensive mobile was gifted to Vikrant Bakshi by Chander Sharma. Chander Sharma was living a luxurious lifestyle before the incident. He proclaimed himself to be an Advocate and an employee of the International Human Rights Commission. He used to consume luxurious cigarettes. He and Tajinder Pal Singh took an extraordinary interest in the search for Yug. Accused 26 Neutral Citation No. ( 2025:HHC:33005 ) Chander Sharma, Tejinder Pal Singh, Vikrant Bakshi and Gaurav were arrested in FIR No. 6/15. The police seized their mobile phones, which were transferred to the present case. The mobile phones of Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi were sent to SFSL, Junga and data was retrieved from them. The data retrieved from the memory card of the mobile phone of Vikrant Bakshi included the video and photographs of Yug. The accused made disclosure statements, which led to the recovery of bones. These were identified to be belonging to Yug based on the DNA analysis. The papers containing similar handwriting, as was used in the ransom note, were recovered from House No.22. The handwriting of Chander Sharma and Vikram Bakshi matched some of the disputed handwriting. The decor of house No.22 matched the decor shown in the photographs and the video of Yug. Slippers of Yug were also recovered from House No.22, which could lead to an inference that Yug was kept in House No.22. The concrete slab was recovered as per the statement made by Chander Sharma. This concrete slab matched the slab found in the water tank. The statements made by the accused leading to the recovery of the bones were admissible in evidence. The diatoms found in the 27 Neutral Citation No. ( 2025:HHC:33005 ) water sample taken from the tank matched the diatoms found in the bones. The motive of the accused persons was to demand ransom from the father of Yug. The accused were in constant touch with each other, which established the conspiracy between them, hence the accused were convicted and sentenced as under:-

(i) Accused Chander Sharma:

Under Section 302 read with Sentenced to death. Section 120-B of the IPC.

Under Section 364-A, read Sentenced to death. with Section 120-B of the IPC.

Under Section 347 read with To suffer rigorous imprisonment Section 120-B of the IPC. for three years, pay a fine of ₹20,000/- (₹Twenty Thousand only), and in default of payment of fine, to undergo simple imprisonment for three months.

Under Section 201 read with To suffer rigorous imprisonment Section 120-B of the IPC. for seven years, pay a fine of ₹50,000/- (₹Fifty Thousand only), and in default of payment of fine, to undergo simple imprisonment 28 Neutral Citation No. ( 2025:HHC:33005 ) for six months.

Under Section 506, read with To suffer rigorous imprisonment Section 120-B of the IPC. for one year, pay a fine of ₹10,000/- (₹Ten Thousand only), and in default of payment of fine, to undergo simple imprisonment for one month.

All the sentences were directed to run concurrently. The accused was directed to be hanged by his neck till he was dead.

(ii) Accused Tajender Pal Singh:

Under Section 302 read with Sentenced to death. Section 120-B of the IPC.

Under Section 364-A, read Sentenced to death. with Section 120-B of the IPC.

Under Section 347 read with To suffer rigorous imprisonment Section 120-B of the IPC. for three years, pay a fine of ₹20,000/- (₹Twenty Thousand only), and in default of payment of fine, to undergo simple imprisonment for three months.

Neutral Citation No. ( 2025:HHC:33005 ) Under Section 201 read with To suffer rigorous imprisonment Section 120-B of the IPC. for seven years, pay a fine of ₹50,000/- (₹Fifty Thousand only), and in default of payment of fine, to undergo simple imprisonment for six months.

All the sentences were ordered to run concurrently. The accused was directed to be hanged by his neck till he was dead.

(iii) Accused Vikrant Bakshi:

Under Section 302 read with Sentenced to death. Section 120-B of the IPC.

Under Section 364-A, read Sentenced to death. with Section 120-B of the IPC.

Under Section 347 read with To suffer rigorous imprisonment Section 120-B of the IPC. for three years, pay a fine of ₹20,000/- (₹Twenty Thousand 30 Neutral Citation No. ( 2025:HHC:33005 ) only), and in default of payment of fine, to undergo simple imprisonment for three months.

All the sentences were ordered to run concurrently. The accused was directed to be hanged by his neck till he was dead.

24. Since the death sentence was imposed, therefore, a reference was made to this Court for confirmation.

25. The accused have also preferred separate appeal against the judgment and order passed by the learned Trial Court. It was asserted that the learned Trial Court failed to consider the legal arguments raised by the defence. The 31 Neutral Citation No. ( 2025:HHC:33005 ) investigating agency falsely implicated the accused when they could not solve the sensational and hyped crime for more than two years. The evidence was not appreciated as per the well- defined parameters. The chain of circumstances should be unbroken and lead to the guilt of the accused. Various links in the chain do not add up and point towards the guilt of the accused. The child was found missing on 14.6.2014, and no clue was found in this case for almost one year. An FIR No. 6/15, dated 22.1.2015, was registered for theft in a courier company. The accused, Gaurav, was arrested in the FIR. The involvement of the accused was suspected after their arrest. However, it was not explained what led to the suspicion against the accused. The family members of Yug unanimously deposed that they became suspicious after the arrest of the accused in the theft case without explaining the basis for their suspicion. The Investigating Officer had taken the call detail about the case, which was more than one year old. The house was searched on different occasions in the presence of a scientific expert. Some articles were recovered on 18.7.2016. Another search was conducted on 17.8.2016 in the presence of scientific officers of the forensic laboratory, and incriminating articles were 32 Neutral Citation No. ( 2025:HHC:33005 ) recovered. It was not explained why the articles found subsequently were not recovered during the earlier search. The articles were lying in accessible places, and their recovery was suspicious. It was proved on record that the tank was cleaned in January and July 2016. There is no explanation of how the bones could have been recovered on 25.8.2016. As per the prosecution, the deceased was thrown alive into the tank. The body would have decomposed in the water tank, and the foul smell could not have gone unnoticed. These aspects were overlooked by the learned Trial Court. Sanjeevan Jaiswal had made a ransom call. Police arrested him, and he was let off without any reason. The accused, Chander Sharma, was a neighbour of the deceased. The sisters of the deceased were taking tuition from Chander's mother. His conduct of searching for the child is natural. The child was stated to have been killed on 21.6.2014, and the first ransom letter was sent on 27.6.2014. It is highly improbable that a person is kidnapped to get the ransom and thereafter he is killed before the ransom is demanded. The accused were declared unfit to undergo a narco-analysis test; however, they were not again taken for the narco-analysis test. Therefore, it was prayed 33 Neutral Citation No. ( 2025:HHC:33005 ) that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside.

26. We have heard Mr Sartaj Singh Narula, Arshdeep Singh Cheema and Prince Chauhan, learned counsel for the appellants/accused, and Mr Jitender Sharma, learned Additional Advocate General, assisted by M/s. J.S. Guleria and Priyanka Chauhan learned Deputy Advocates General for the respondent/State.

27. Mr Sartaj Singh Narula, learned counsel for the appellants/accused, submitted that the prosecution has failed to prove its case beyond a reasonable doubt. The police investigated the matter to implicate the accused rather than finding the actual culprits. The learned Trial Court held that Chander Sharma and Tejinder Pal Singh had taken a keen interest in the search for Yug. They were neighbours of Yug and concerned with his safety. Tejinder Pal Singh had even offered the search of his godown, which shows his bona fides. The prosecution could not trace Yug and falsely implicated the accused. The integrity of the mobile phones is not established. The photographs and the video recording were found on the memory card of the mobile phone, as per the prosecution. The memory card is not mentioned in the 34 Neutral Citation No. ( 2025:HHC:33005 ) recovery memo prepared in FIR No. 6/15, which makes it highly doubtful that the memory card was present in the mobile phone. The ransom letter initially received by Vinod Gupta mentions that the audio of Yug's voice was sent with the ransom letter; however, that audio was never produced before the Court, and it was claimed that no such audio was received. There is a reasonable doubt that the memory card stated to have been recovered from the mobile phone of Vikrant Bakshi is the same memory card which was attached to the first ransom letter. The police had interrogated various persons and had also conducted their narco-analysis test. Police traced Sanjeevan Jaiswal as the caller, who had demanded the ransom. He had even refused to undergo a narco-analysis test. The police did not probe his role to determine his complicity. The specimen handwritings of various persons were taken, and these were sent to SFSL Junga for analysis as per the initial report issued by SFSL Junga. The specimen handwriting of Chander Sharma did not match the disputed handwriting. The Forensic Expert asked that the specimen handwriting be taken on the same type of paper and with the same pen with which the ransom notes were written. The material to be written in the specimen handwriting was 35 Neutral Citation No. ( 2025:HHC:33005 ) shown to the accused, and they were asked to copy it. This is contrary to the procedure of taking the specimen handwriting. The handwriting expert matched the handwriting of Chander Sharma with the disputed handwriting. He had initially compared the specimen handwriting of Chander Sharma with the disputed handwriting and had issued a report that these could not be matched. However, he subsequently stated that the same handwriting matched the disputed handwriting. This makes the authenticity of his report highly doubtful. Flat No.22 was stated to have been rented to the accused Chander Sharma. Owner Amit Pal Singh claimed that the payment was made online; however, no online payment to Amit Pal Singh was found. The only payment which was proved on record was made by Vikrant Bakshi, that too in October. The statements of the witnesses who claimed that the birthday of Vikrant Bakshi was celebrated in Flat No.22 are not reliable. The recoveries made from Flat No.22 are also suspicious. Amit Pal Singh stated that when the rent was not paid to him, he broke the lock and cleaned the Flat. The search of the Flat was conducted on 18.7.2016 in the presence of the SFSL Team, and some articles were recovered. Thereafter, the search was again conducted on 17.8.2016, and other articles were 36 Neutral Citation No. ( 2025:HHC:33005 ) recovered. It is highly suspicious that the house was cleaned by the owner, recoveries of some articles were made in the presence of a Forensic Expert, and thereafter, some other incriminating articles were recovered. The key remained with the police, and the possibility of the police putting the articles in the house could not be ruled out. The recovery of the bones is also suspicious. The tank was cleaned twice a year. The officials from the Municipal Corporation, Shimla, categorically stated that they had cleaned the tank. It is highly unbelievable that the bones could still be recovered in August. The concrete slab, stated to be tied to Yug, was proven to be a stepping stone for the ladder by the statements of the officials. A diatom test conducted by Forensic Experts is not a reliable test, and in the absence of the details of the diatoms, the same cannot be used to conclude that yug was thrown alive into the tank. A decomposing body would leave traces in the water, which could be detected in the water supply. No complaint was made by any person about the remains of the dead body or the foul smell. The requirements of Section 364A of the IPC were not satisfied. The statement under Section 27 of the Indian Evidence Act describing the various steps taken by the accused was held to be inadmissible by the learned Trial 37 Neutral Citation No. ( 2025:HHC:33005 ) Court. The call details record was not proved as per the law, as no certificate under Section 65B of the Indian Evidence Act was filed. The tower location was found with the help of private software. The Investigating Officer assumed that the signal of the tower was unidirectional, whereas the signal is circular and cannot fix the location of a person with certainty. The learned Trial Court has not given any cogent reason for imposing the death penalty. Merely because a young child has died is no reason to impose the extreme penalty of death. The case was based on circumstantial evidence, and the death penalty should not have been imposed upon the accused in a case of circumstantial evidence. Therefore, he prayed that the present appeal be allowed and the accused be acquitted, or in the alternative, the death penalty imposed by the learned trial court be reduced. He relied upon the following judgment in support of his submission: -

 Magan Bihari Lal Vs. The State of Punjab 1977(2) SCC 210;

 Murarilal Vs. State of M.P. 1980(1) SCC 704;

 Shashi Kumar Banerjee & others Vs Subodh Kumar Banerjee since deceased & after him his LRs & others 1964 AIR (Supreme Court) 529  Tulsiram Kanu Vs State 1954 AIR (Supreme Court) 1 38 Neutral Citation No. ( 2025:HHC:33005 )  State of Rajasthan Vs. Talevar 2011(11) SCC666  Raj Kumar Singh Vs. State of Rajasthan 2013(5) SCC 722  Inspector of Customs Vs. Yashpal and Anr. 2009(4) SCC 769  Vishwanath Gupta Vs. State of Uttaranchal (2007)11 SCC 633  Shaik Ahmed Vs State of Telangana (2021) 9 SCC59  Suman Sood alias Kamaljeet Kaur Vs. State of Rajasthan(2007) 5 SCC 634  Hardayal Vs. State of U.P. (1976)2 SCC 812  C. Muniappan Vs. State of Tamil (2010)9 SCC 567  Bachittar Singh Vs. State of Punjab (2002)8 SCC 125  Bachan Singh & Ors Vs. State of Punjab (1980)2 SCC 684  Suresh Vs. State of U.P. (1981) 2 SCC 569  Harnam Singh Vs State (Delhi ADMN) (1976) 2 SCC 819  Dagadu Vs. State of Maharashtra (1981) 2 SCC 575

28. Mr. J.S. Guleria, learned Deputy Advocate General for the respondent/State, submitted that the prosecution had proved its case beyond a reasonable doubt. The evidence proved the accused's location at the Dwarkagarh building and thereafter at Flat No.22. They were in constant touch with each other. The experts from mobile companies deposed about the reach of the signal, and this establishes the location of the accused with 39 Neutral Citation No. ( 2025:HHC:33005 ) certainty. The involvement of the accused was indicated in the narco-analysis test of Arvind and Hariom conducted in Gujarat. The police obtained the call details record and found that the location of the accused was commensurate with their presence at Flat No.22. Gurleen Kaur categorically stated that she had handed over the keys to Chander Sharma, who had paid ₹ 10,000/- as an advance amount. Various persons had visited Flat No.22, and the birthday of Vikrant Bakshi was celebrated in the same Flat. Chander Sharma was leading a luxurious lifestyle. He showed keen interest in the investigation being conducted by the police. He was scolded for the same by the uncle of Vinod Gupta. He had expressed his anger at this. The involvement of the accused is duly proved by the data recovered from the mobile phone. The décor in the photographs of Yug and the video matched the décor of Flat No.22. It was duly established by the DNA analysis that the bones recovered from the tank at Keleston belonged to Yug. These circumstances show that the accused were aware of the fact that the bones of Yug were lying in the water tank. They did not provide any explanation for their knowledge. They denied the prosecution's case in its entirety. False denial is a circumstance which strengthens the chain of circumstantial evidence. The 40 Neutral Citation No. ( 2025:HHC:33005 ) accused had a motive to kidnap Yug, as Chander Sharma was leading a luxurious lifestyle and required money to sustain it. He had falsely proclaimed himself to be an employee of the International Human Rights Commission. He had forged the identity card to establish this fact. He had even offered to pay money to the Investigating Officer during the investigation. The links in the chain of circumstance unerringly pointed towards the guilt of the accused, and the learned Trial Court had rightly held that the accused had kidnapped Yug for ransom. The deceased, Yug, was a neighbour of the accused, Chander Sharma. His sisters were taking tuition from his mother. He reposed confidence in the accused. The accused breached this confidence and kidnapped the child to satisfy his desire for money. This is a reprehensible crime, and the death penalty was the appropriate punishment for it; therefore, he prayed that the death penalty imposed by the learned Trial Court be confirmed and the appeal preferred by the accused be dismissed. He relied upon the following judgment in support of his submission: -

 Kishore Bhadke Vs. State of Maharashtra 2017(3) SCC 760  State (NCT of Delhi) Vs. Navjot Sandhu 2005 (11) SCC 600 41 Neutral Citation No. ( 2025:HHC:33005 )  State of Karnataka Vs. David Razario 2002 (7) SCC 728  Charandas Swami Vs. State of Gujarat 2017 (7) SCC 177  Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622  Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681  Kehar Singh Vs. State of Delhi Administration. (1988) 3 SCC 609  Murari Lal Vs. State of H.P. 1980(1) SCC 704  Sapan Haldar and others Vs. State 2012 STPL Page 164431  Mohd. Khalid Vs. State of W.B. (2002) 7 SCC 334  Shivaji Sahabrao Bobade Vs. State of Maharashtra 1973 (2) SCC 793  Munna Kumar Upadhyay Vs. State of Andhra Pradesh 2012 (6) SCC 174  Suresh Chandra Bahri Vs. State of Bihar 1995 Supp. (1) SCC 80  Sambhubhai Raisangbhai Padhiyar Vs. State of Gujarat (2025) 2 SCC 399  Prakash Chand Vs. State (1979) 3 SCC 90  Manoj Pratap Singh Vs. State of Rajasthan 2022(9) SCC 81  Machhi Singh Vs. State of Punjab 1983 (3) SCC 470  Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 42 Neutral Citation No. ( 2025:HHC:33005 )  Dhananjay Chatterjee @ Dhana Vs. State of West Bengal 1994 (2) SCC 220  Mukesh Kumar Vs. (NCT) State 2017(6) SCC 1  Mohd. Ajmal Amir Kasab Vs. State of Maharashtra (2012) 9 SCC 1  Umashankar Panda v. State of Madhya Pradesh 1996(8) SCC 110  Kanta Tiwari Vs. State of Madhya Pradesh 1996(6) SCC 250  State of Rajasthan Vs. Kheraj Ram 2003 (8) SCC 224  Sushil Murmu Vs. State of Jharkhand 2004(2) SCC 338  Purushottam Dashrath Borate Vs. State of Maharashtra 2015(6) SCC 652  Jagmohan Singh Vs. State of UP 1973 (1) SCC 20  Bantu Vs. State of UP 2008(11) SCC 113  Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra 2008(15) SCC 269  Ravji @ Ram Chandra Vs. State of Rajasthan 1996(2) SCC 175  Shabnam Vs. State of UP 2015(6) SCC 632

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

Neutral Citation No. ( 2025:HHC:33005 )

30. The learned Trial Court held that there was no direct evidence in the present case and the prosecution has based its case on the following circumstances:

(i) Vinod Kumar Gupta (PW-70) was residing with his family consisting of his wife, his mother, his two daughters, one son Yug and mother in Dwarkagarh building, Ram Bazar, Shimla;

(ii) Vinod Kumar Gupta (PW-70) was having flourishing business at Shimla, and his financial condition was good, which attracted the accused persons to commit the offences.

(iii) The accused Chander Sharma was residing in the seventh floor of Dwarkagarh building along with his parents;

(iv) The accused persons, in furtherance of criminal conspiracy hatched between them had taken the House No.22, Housing Board Colony, Jakhu, Shimla on rent from PW-52 Lt. Col Amit Pal Singh in the month of April/May 2014 and the house remained with them for about 5-6 months;

(v) The accused Chander Sharma was living a luxurious life prior to the incident.

(vi) On 14.062014, between 07.10 to 08.30 P.M., Yug was abducted by the accused Chander Sharma in pursuance of the criminal conspiracy hatched 44 Neutral Citation No. ( 2025:HHC:33005 ) between accused Chander Sharma, Tejinder Pal Singh and accused Vikrant Bakshi;

(vii) Accused Chander Sharma and accused Tejinder Pal Singh have shown extraordinary interest in the search of Yug;

(viii) On 22.01.2015, accused Chander Sharma, accused Tejinder Pal Singh and accused Vikrant Bakshi, along with one Gaurav, were arrested in case FIR No. 6/15, PS New Shimla and at the time of their arrest, in their Jamatalashi(s), the mobile phones were recovered;

(ix) That the mobile phones of accused Chander Sharma, accused Tejinder Pal Singh, and accused Vikrant Bakshi were transferred, on the application of the police, by PW-91 Ms. Sonal Thama, the then JMIC Court No. (8) Shimla to the I.O. of case FIR No. 77/14 Police Station, Sadar, the inquiry of which was entrusted to CID;

(x) In the laboratory, PW-77 Dr. Jagjeet has retrieved the deleted data from the memory card Ext. P-108, which was found from the mobile phone Ext.P-106 of accused Vikrant Bakshi, which was gifted to him by accused Chander Sharma;

(xi) The accused persons have made disclosure statements and got identified the tank and got recovered the bones of Yug in their disclosure 45 Neutral Citation No. ( 2025:HHC:33005 ) statements Ext.PW53/A, Ext.PW53/B and Ext.PW53/C;

(xii) After abducting Yug, he was kept confined in House No.22, Housing Board Colony, Ram Chandra Chowk, Jakhu by the accused persons in pursuance to their criminal conspiracy;

(xiii) Minor Yug was kept in House No.22, Housing Board Colony, Ram Chandra Chowk, Jakhu, Shimla from 14.06.2014 to the intervening night of 21/22.06.2014 by the accused persons;

(xiv) On 21.06.2014, the accused persons, in pursuance to the criminal conspiracy hatched between them had lifted a stone from Chaura Maidan, Shimla and put the same in the vehicle and on the intervening night of 21/22.06.2024, the accused persons had thrown Yug alive in the water tank at Keleston after tying him with stone Ext.P-99 with the rope Ext.P-

100 and killed Yug;

(xv) The disclosure statements of the accused persons and recovery of the bones in pursuance of their disclosure statements;

(xvi) The accused Chander Sharma and the accused Tijender Pal Singh then started writing ransom letters by procuring the tracing papers through accused Vikrant Bakshi;

(xvii) The accused Chander Sharma had written four ransom letters to PW-70 demanding ransom.

Neutral Citation No. ( 2025:HHC:33005 ) (xviii) The motive of the accused persons to kidnap Yug was to demand ransom from his parents;

(xix) The bones were proved to be the bones of Master Yug, and it has been proved that he was thrown alive into the tank; and (xx) The accused persons, in pursuance of their criminal conspiracy, had caused disappearance of the evidence.

31. The prosecution's 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 Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812: 2013 SCC OnLine SC 435 at page 732:

"23. In Hodge, In re [(1838) 2 Lewin 227: 168 ER 1136] the Court held that before a person is convicted entirely on circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person.

24. In Sharad Birdhichand Sarda [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116: 1984 SCC (Cri) 487: AIR 1984 SC 1622] this Court held as under : (SCC p. 185, para 153) "153. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused ...

Neutral Citation No. ( 2025:HHC:33005 ) 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, *** (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."

A similar view has been reiterated in Krishnan v. State [(2008) 15 SCC 430 : (2009) 3 SCC (Cri) 1029], Pawan v. State of Uttaranchal [(2009) 15 SCC 259 :

(2010) 2 SCC (Cri) 522] and State of Maharashtra v. Mangilal [(2009) 15 SCC 418 : (2010) 2 SCC (Cri) 554].

25. In M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 1 Cri LJ 235], this Court held that if the circumstances proved in a case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of the doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.

26. Similarly, in Sharad Birdhichand Sarda [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116:

1984 SCC (Cri) 487: AIR 1984 SC 1622] this Court held as under : (SCC pp. 127-28) The graver the crime, the greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion, but that cannot amount to legal proof. When, on the evidence, two possibilities are available or open, one which goes in favour of the 48 Neutral Citation No. ( 2025:HHC:33005 ) prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of the doubt. The principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence.

27. In an Essay on the Principles of Circumstantial Evidence by William Wills, by T. & J.W. Johnson & Co., 1872, it has been explained as under:

"In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances that we acquire confidence in the accuracy of our conclusions.

The term 'presumptive' is frequently used as synonymous with circumstantial evidence, but it is not so used with strict accuracy, The word 'presumption', ex vi termini, imports an inference from facts; and the adjunct 'presumptive', as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum."

Neutral Citation No. ( 2025:HHC:33005 )

28. Thus, in view of the above, the court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused.

32. This position was reiterated in Raja Naykar v. State of Chhattisgarh, (2024) 3 SCC 481 as under:

"16. Undoubtedly, the prosecution's 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) "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 50 Neutral Citation No. ( 2025:HHC:33005 ) 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 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, 51 Neutral Citation No. ( 2025:HHC:33005 ) (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.

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 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 52 Neutral Citation No. ( 2025:HHC:33005 ) 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 a 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."

33. A similar view was taken in Abdul Nassar v. State of Kerala, 2025 SCC OnLine SC 111, wherein it was observed:

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 [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Cri LJ 1783] where the 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 53 Neutral Citation No. ( 2025:HHC:33005 ) 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 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused, and must show that, in all human probability, the act must have been done by the accused.

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

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

Circumstance No.1.

35. It was not disputed by learned counsel for the accused that the deceased, Yug, was residing with his parents, two sisters and grandmother at the Dwarkagarh building. Otherwise, also, the testimony of Vinod Gupta (PW70) that he was residing at the Dwarkagarh building with his family, including the deceased, was not suggested to be incorrect in the cross-examination. It 54 Neutral Citation No. ( 2025:HHC:33005 ) 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 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 the 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 55 Neutral Citation No. ( 2025:HHC:33005 ) 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 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 56 Neutral Citation No. ( 2025:HHC:33005 ) 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, 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 57 Neutral Citation No. ( 2025:HHC:33005 ) 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 the 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 its version to the witness. If no such questions are put, the Court would presume that the witness account has been 58 Neutral Citation No. ( 2025:HHC:33005 ) 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 another 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 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 the 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."

Neutral Citation No. ( 2025:HHC:33005 )

36. Similarly, the statement of Pinki Gupta (PW64) to this effect was also not challenged in her cross-examination. Arvind Padam (PW80) proved the ration card (Ext. PW80/C), in which the names of Vinod Gupta and his family members, including Yug, were mentioned, and their address was mentioned as Dwarkagarh building, Ram Bazar, Shimla. Therefore, the circumstance No.1 that the deceased, Yug, was residing with his parents at the Dwarkagarh building was duly proved.

Circumstance No. 2.

37. The financial condition of Vinod Gupta (PW70) was also not disputed during the arguments. In the cross- examination, Vinod Gupta was asked about his assets. He stated that he had property worth ₹ 1:00 crore at Shimla. He had ancestral property in his native village. He had a shop in partnership with his brother. This statement was corroborated by Arun Kumar Gupta (PW4), who stated in his examination-in- chief that the accused Chander Sharma had enquired about the business of Vinod Gupta, and he revealed that the family had 10- 12 shops in Shimla. Chander Sharma also enquired whether Vinod Gupta had more money than the other Members, and he told Chander Sharma that Vinod Gupta had more money in the 60 Neutral Citation No. ( 2025:HHC:33005 ) family. This part of his examination-in-chief was not challenged in the cross-examination; therefore, it was duly proved that Vinod Gupta (PW70) had a flourishing business, which fact was known to Chander Sharma.

Circumstance No.3.

38. Accused Chander Sharma did not dispute that he was residing in the Dwarkagarh building. He disclosed his address as a resident of the 7th floor Dwarkagarh building, Ram Bazar, Shimla, in his statement recorded under Section 313 of Cr.P.C. A plea was taken in the memorandum of appeal that Chander Sharma was residing in the Dwarkagarh building; therefore, his presence at the spot and his involvement in the search for the child were natural. This also shows that the accused have not disputed the fact that Chander Sharma was residing in the Dwarkagarh building. Therefore, the learned Trial Court had rightly held that it was duly established that Chander Sharma was residing on the 7th floor of the Dwarkagarh building.

Circumstance No.4

39. Amit Pal Singh (PW52) stated that he had purchased cottage No.22, Housing Board Colony, Jakhu. He was interested in renting out the same. He discussed the matter with property 61 Neutral Citation No. ( 2025:HHC:33005 ) dealers, and Chander Sharma telephonically contacted him to obtain the house for rent. Chander Sharma wanted to get the house on rent, as his younger brother had been admitted to Chaura Maidan, Shimla. The rent of the house was fixed over the telephone at Rs. 20,000/- per month. The key was lying with Gurleen Kaur, who handed over the key to Chander Sharma. Chander Sharma did not pay the rent regularly, and when Chander Sharma was asked to pay the rent, he disclosed that his father had died. Amit Pal again called Chander Sharma, who replied that he had met with an accident and was admitted to AIIMS. He did not pursue the matter further. Chander Sharma had deposited one month's rent online in his account. He had rented the house in April/May 2014. The house remained with Chander Sharma for about 5-6 months. He called Chander Sharma, but Chander Sharma did not pick up the call. He broke the lock of the house, changed the inner lock and cleaned the house.

40. This witness has categorically stated in his examination-in-chief that Chander Sharma had deposited one month's rent online to his account; however, this version is not supported by the statement of his account. Sudarshan Kumar 62 Neutral Citation No. ( 2025:HHC:33005 ) Saini (PW19) brought the account statement of Vikrant Bakshi and stated that an amount of Rs. 25,000/- was transferred to the account of Amit Pal Singh on 7.10.2014. Similarly, Mangla Sood (PW16) brought the account details of Amit Pal Singh and stated that ₹25,000/- was transferred into the account of Amit Pal Singh on 7.10.2014 through a mobile banking transfer by Vikrant Bakshi. Rohit Bhardwaj (PW17) brought the account statement of Chander Sharma (Ext. PW17/E); however, there is no entry in it regarding the transfer of the amount from the account of Chander Sharma to the account of Amit Pal Singh. Hence, the bank account statement proved on record does not show the deposit of any amount by Chander Sharma to the account of Amit Pal Singh, as deposed by him.

41. Gurleen Kaur (PW67) stated that her husband, Amit Pal Singh, called her and asked her to hand over the keys of Cottage No.22 to Chander Sharma. Chander Sharma met her in the PC Chambers. She received Rs. 10,000/- as advance rent from Chander Sharma and handed over the keys of the house to him.

42. Her testimony corroborates the testimony of her husband. Nothing was suggested to Amit Pal Singh or this witness in their cross-examination that they had any motive to 63 Neutral Citation No. ( 2025:HHC:33005 ) depose falsely against the accused. It was duly proved on record that Vikrant Bakshi had transferred ₹ 25,000/- from his account to the account of Amit Pal Singh. No explanation was provided by the accused for the transfer of this amount. Therefore, the explanation furnished by Amit Pal Singh that Flat no. 22 was rented to the accused Chander Sharma and the money was transferred towards the rent has to be accepted as correct.

43. The prosecution has also led the evidence to show that the birthday of Vikrant Bakshi was celebrated in Cottage No.22, and the house was in possession of Chander Sharma.

44. Vimal Rattan (PW6) stated that the birthday of Vikrant Bakshi was celebrated on 28.8.2014 in the house of Chander Sharma and his friend Karan Sharma situated near 'Five Benches'. Chander Sharma had gifted a Samsung S-5 mobile phone to the accused Vikrant Bakshi. Some policemen came to him, perhaps on 6.8.2016, and he took the police to the house near "Five Benches" where the birthday party of Vikrant Bakshi was celebrated. The house was locked. The police inspected the house and prepared the sketch. He stated in his cross- examination that he had visited "Five Benches" on two occasions. Firstly, on the occasion of the birthday party of 64 Neutral Citation No. ( 2025:HHC:33005 ) Vikrant Bakshi and secondly, when he had identified the house. He denied that he had not attended the birthday party of Vikrant Bakshi and had not shown the house to the police. He also denied that the police had not taken the photographs, nor had the police prepared the spot map of the house. He admitted that he had sold the Diwali articles taken by him from Bablu on credit. He volunteered to say that the credit was for only four days. He denied that Tejinder Pal had objected that he (Vimal Rattan PW-6) had closed the road, on which an altercation took place between them.

45. The admission that he had purchased Diwali articles by taking them on credit from Bablu @ Vinod Gupta will not affect his credibility. Vinod Gupta was dealing in wholesale and would have given articles to many persons on credit. Hence, merely giving the articles on credit will not mean that Vimal Rattan (PW6) would make a false statement at the instance of Vinod Gupta. Further, nothing was shown as to why Vinod Gupta would ask him to make a false statement against Chander Sharma.

46. Vimal Rattan (PW6) denied that he had quarrelled with Tejinder Pal Singh. A denied suggestion does not amount to 65 Neutral Citation No. ( 2025:HHC:33005 ) any proof. Even if this suggestion is accepted to be correct, he would have a motive to depose against Tejinder Pal Singh; however, he has not deposed against Tejinder Pal Singh but only against Chander Sharma and Vikrant Bakshi. Therefore, this suggestion by itself is not sufficient to discredit his testimony.

47. Himanshu Khanna (PW8) stated that Chander Sharma had gifted a mobile phone worth ₹ 50,000-55,000/- to Vikrant Bakshi in August 2014. The birthday party was held at a house situated near Ram Chandra Chowk. He, Vikrant Bakshi, Chander Sharma, Vimal, Pravesh and other persons attended the party. Chander Sharma disclosed that he had purchased the house with one Karan Sharma. He had also attended the birthday party of their friend Hitesh at the said house. He stated in his cross- examination that he had worked in various hotels. He did not remember the exact date of Vikrant Bakshi's birthday. The birthday of Hitesh falls after August, but he did not remember the date. He only used to wish ('hai-hello) Bablu @ Vinod Gupta and had no other relation with him. He denied that he had never celebrated the birthday of Vikrant Bakshi in the house near Ram Chandra Chowk, or that Chander Sharma had not gifted any mobile phone to Vikrant Bakshi. He admitted that he was facing 66 Neutral Citation No. ( 2025:HHC:33005 ) a criminal trial regarding a quarrel, but denied that he was making a false statement under the pressure of the police.

48. The suggestion made to him that he was making a false statement under the pressure of the police is not acceptable. No reason was assigned as to why the police should force him to make a false statement. It was laid down by the Hon'ble Supreme Court in State of Punjab v. Hari Singh, (1974) 4 SCC 552: 1974 SCC (Cri) 588: 1974 SCC OnLine SC 112 that there is a presumption that a person speaking on oath is telling the truth. It was observed at page 558:

"12. It is in dealing with the evidence of Zora Singh, PW 3, that the High Court seems to us to have adopted a patently erroneous approach and to have given grounds which do not appear to us to be reasonably sustainable. The High Court seems to have assumed that Zora Singh must have invented the story that he had got up to urinate so that he could pose as an eyewitness of the occurrence. The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility for the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The High Court had no doubt tried to show that this was the position with regard to the whole of the testimony of Zora Singh. But, 67 Neutral Citation No. ( 2025:HHC:33005 ) we do not think that it was successful." (Emphasis supplied)

49. In the present case, there is nothing inherently improbable in his testimony, and mere pendency of the criminal case is not sufficient to doubt his testimony. His testimony is corroborated by the statement of Vimal Rattan (PW6) and has to be accepted as correct.

50. The testimonies of these witnesses are duly corroborated by the sale of a Samsung mobile to Chander Sharma. Vikrant Nanda (PW11) stated that a mobile phone, Samsung N-7100, was sold to Chander Sharma for ₹ 31,500/-. The amount was received in cash. The mobile number xxx070 of Chander Sharma was noted on the bill. The customer and the employee of the shop signed the bill. He stated in his cross- examination that he had not sold the phone, but his employee had sold it. He admitted that several bills were blank in the bill book. The mobile phones were stolen from his shop, and the police had taken the records of the theft of the mobile phones. He denied that he had signed the memo without reading the same. He denied that he was deposing falsely at the instance of the police.

Neutral Citation No. ( 2025:HHC:33005 )

51. He is the owner of the shop. Nothing was suggested in his cross-examination which would show that he was making a false statement. He had no reason to know the mobile number of Chander Sharma. The fact that the mobile number of Chander Sharma was put on the bill corroborates his testimony regarding the sale of the mobile to Chander Sharma from his shop.

52. Ms Meenu Rana (PW72) proved that Chander Sharma, son of Anil Sharma, resident of Mohan Niwas, Lower Bharari Road near Radisson Hotel, Shimla, had applied for a mobile connection. He submitted a consumer application form and a photocopy of his Aadhaar Card. The mobile number xxx070 was allotted to Chander Sharma. She was cross-examined regarding the CDR and its correctness. No question was asked regarding the allotment of mobile number xxx070 to Chander Sharma. Therefore, her testimony duly proves that the mobile number xxx070 was allotted to Chander Sharma, and the fact that the mobile number xxx070 was mentioned in the bill book provides valuable corroboration to the testimony of Vikram Nanda (PW11) that this number was put upon the bill by the purchaser, who had also mentioned his mobile number.

Neutral Citation No. ( 2025:HHC:33005 )

53. Jai Prakash (PW96) stated that he was working as a salesman with Connexions Arcade, The Mall, Shimla. He had issued the bill (Ext. PW96/A) vide which one mobile phone, Samsung GT No.7100, was sold to Chander Sharma, whose mobile number was xxx070. He stated in his cross-examination that he had not brought any record to show that he was working with Connexions Arcade, however, that is not material. He had issued the bill of the shop Connexions Arcade, which shows his connection to the shop.

54. Inspector Manish Chauhan (PW97) investigated FIR 6/15 registered at the Police Station, New Shimla. He stated that he searched Vikrant and recovered a mobile phone along with the SIM number. xxx389 vide memo (Ext. PW36/D). He stated in his cross-examination that the articles recovered during the personal search of the accused were mentioned in the memos. The names of Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi were mentioned on the back side of the mobile phones. He denied that the signatures of the accused were taken by threatening them.

55. His testimony is duly corroborated by the statement of HC Kundan Singh (PW36), who proved the seizure memo of 70 Neutral Citation No. ( 2025:HHC:33005 ) the personal search of Vikrant Bakshi (Ext. PW36/D). The memo (Ext.PW36/D) reads that the search of Vikrant Bakshi was conducted during which one watch, one purse, two ATMs, one driving licence, one identification document, currency notes and a Samsung mobile phone N-7100 were recovered. This memo was signed by Duni Chand and Balwant Singh.

56. Balwant Singh (PW86) stated that Vikrant Bakshi was searched. Two ATM cards, a currency note of ₹ 1,000/-, a DL and a Samsung mobile N7100 were recovered during the search. A memo (Ext. PW36/D) was prepared, which was signed by him and Duni Chand. He stated in his cross-examination that no other articles, except the ones mentioned in the seizure memo, were recovered in his presence. He denied that police had not searched the accused in his presence. He denied that the memos were fraudulently prepared, and he signed them at the instance of the police.

57. There is nothing in his cross-examination to show that he is making a false statement. Therefore, it was duly proved that the mobile phone Samsung N7100 was recovered from the possession of Vikrant Bakshi. This provides valuable corroboration to the testimony of Vimal Rattan and Himanshu 71 Neutral Citation No. ( 2025:HHC:33005 ) Khanna that the accused, Chander Sharma, had gifted this mobile to Vikrant Bakshi.

58. It was submitted that the mobile phone recovered vide memo (Ex. PW.36/D) is not connected to the mobile phone sold from the shop Connexions Arcade. This submission is not acceptable. The bill (Ext.PW96/A) mentions the IMEI No. 357729054409159. The seizure memo also mentions the IMEI No. 357729/05/4409159; therefore, these two documents prove that the mobile number sold through the bill (Ext. PW96/E) was recovered from the possession of Vikrant Bakshi, and the identity of the mobile is duly established.

59. Therefore, it was duly proved on record that the possession of Flat No.22 was with Chander Sharma, where he had celebrated the birthday of Vikrant Bakshi in August 2014, and Chander Sharma had gifted a Samsung mobile phone to Vikrant Bakshi on that occasion.

Circumstance No.5.

60. The learned Trial Court held that the accused Chander Sharma was living a luxurious lifestyle. He proclaimed himself to be a lawyer and an employee of the International Human Rights Commission. According to the learned Trial Court, this was 72 Neutral Citation No. ( 2025:HHC:33005 ) relevant under Section 8 of the Indian Evidence Act. Section 8 of the Indian Evidence Act reads as under: -

8. Motive, preparation and previous or subsequent conduct. --Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. --The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. --When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

61. It is apparent from the bare perusal of the Section that the conduct of any accused is relevant if such conduct is influenced by any fact in issue or the relevant fact. It was laid down by the Hon'ble Supreme Court in A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714: 2005 SCC (Cri) 1938: 2005 SCC OnLine SC 1156 that the conduct of the accused is relevant if it influences or is influenced by the fact in issue. It was observed at page 721: 73

Neutral Citation No. ( 2025:HHC:33005 ) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact...."

62. A similar view was taken in Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90: 1979 SCC (Cri) 656, wherein it was observed at page 95:

'8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Code of Criminal Procedure. What is excluded by Section 162 of the Code of Criminal Procedure is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.'

63. It was laid down by the Hon'ble Supreme Court of India in Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306:

(2007) 1 SCC (Cri) 732: 2006 SCC OnLine SC 1279 that the conduct of the accused must have some nexus with the commission of the crime. It was observed at page 314:

Neutral Citation No. ( 2025:HHC:33005 )

17...Conduct of an accused must have a nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after the commission of the offence as envisaged under Section 8 of the Evidence Act."

64. Therefore, only such conduct of the accused is relevant that influences or is influenced by the fact of the issue or the relevant fact. The evidence that the accused were in a financially difficult position and decided to kidnap Yug would have been relevant because it influences the fact in issue, namely, the kidnapping of Yug. However, the fact that Chander Sharma was proclaiming himself to be a Lawyer and an employee of the International Human Rights Commission does not influence the fact in issue and is also not influenced by the fact in issue and was wrongly held to be relevant.

65. The only evidence of financial difficulties is deposed by Aakash Gupta (PW7), who stated that he had known Chander Sharma for 3-4 years. Chander Sharma used to purchase beedis and cigarettes from his shop. Initially, he (Chander Sharma) used to purchase Four Square Cigarettes; however, he paid ₹ 2,000/- (which was corrected to ₹ 2,100/-) to him (Aakash Gupta) as an advance and directed him to bring 10 boxes of Marlboro. He arranged the packet. Chander Sharma kept the packet in his 75 Neutral Citation No. ( 2025:HHC:33005 ) shop, and he used to direct Aakash Gupta telephonically to provide cigarette packets at S.D. School or in the godown. Chander Sharma again directed him to arrange one special packet of the same brand, but the accused did not pay any amount. The accused proclaimed himself to be a lawyer, and he owed ₹ 5,000/- to this witness.

66. The testimony of this witness proves that Chander Sharma was in financial difficulties, as he was unable to pay ₹5,000/- to him. Rohit Bhardwaj (PW17) proved the statement of account (Ext. PW17/E) of Chander Sharma, which shows that an amount of ₹ 10,200/- was available in the account on 26.8.2014. Various transactions were made, and ultimately, an amount of ₹3,000/- was shown as a balance on 27.2.2015, and zero amount was available as a balance on 28.2.2015. This statement of account also shows that the accused, Chander Sharma, did not have a huge money available to him in his account, which could have supported his lavish lifestyle.

67. The learned Trial Court also relied upon the evidence that the accused, Chander Sharma, had proclaimed himself to be a lawyer and an employee of the International Human Rights Commission. He also proclaimed that he had got a job, but he 76 Neutral Citation No. ( 2025:HHC:33005 ) was not leaving India because of this case. This evidence only shows that Chander Sharma is prone to exaggeration, but does not influence any fact in issue or the relevant fact; therefore, the prosecution cannot take any advantage of this evidence.

Circumstance No.6.

68. It is undisputed that Yug was found missing after 14.6.2014 at around 6-6:30 pm. This was not challenged in the cross-examination as well as in the memorandum of appeal. The accused also stated in their statements recorded under Section 313 of Cr.P.C. that they were falsely implicated because the case was untraceable. The testimonies of Pinki Gupta (PW64) and Vinod Gupta (PW70) to this effect were not challenged in their cross-examination.

69. The learned Trial Court noticed the relevant disclosure statements (Ext. PW102/A to Ext. PW102/C) in which the accused had stated about the manner of the kidnapping of Yug. Learned Trial Court held in Para 474 of the judgment that the disclosure statement did not lead to any discovery, and this cannot be read; therefore, the disclosure statements recorded by the police regarding the manner of kidnapping have to be taken out of consideration.

Neutral Citation No. ( 2025:HHC:33005 )

70. Learned Trial Court relied upon the report of a handwriting expert in which it was mentioned that the disputed handwriting and specimen handwriting of the accused were similar, and also upon the call detail record in which the accused was found in the vicinity of Dwarkagarh building and House No.22 to hold that the accused had kidnapped Yug.

71. Visheshwar Sharma (PW84) conducted the handwriting analyses. He stated that he examined seven leaves of tracing paper, three envelopes containing writing which were marked Q-1 to Q-10, S-1 to S-12 and SLS-1 to SLS-9, written by Chander Sharma, specimen writing of Tejinder Pal Singh marked as S-13 to S-24. These specimen items were enclosed in the blue pencil and marked as S-99 to S-130. These were compared to Q-1 to Q-10, and the report (Ext. PW84/C) dated 16.6.2016 was issued in which it was mentioned that it was not possible to express any opinion regarding the authorship or otherwise on the red enclosed writing stamped and marked with the Q-1 to Q-10 in comparison with standard writing stamped and marked as S-99 to S-131. He compared the questioned writing Q-1 to Q-95 and eight leaves of tracing paper, three envelopes, one pasted plain paper, 80 leaves of green sheets and three leaves of Aadhar Cards. 78

Neutral Citation No. ( 2025:HHC:33005 ) He compared them with 41 leaves of specimen writing of Chander Sharma marked as S-99 to S-119 and S-138 to S-157, and the specimen writing of Tejinder Pal Singh marked as S-120 to S-137. He marked all the specimen writings as S-99 to S-157. He exhibited the specimen writing of Chander Sharma (Ext. PW65/E1 to Ext. PW65/E12 and Ext. PW62/A, Ext. PW62/B1 to Ext. PW62/B8). He exhibited the writing of Tejinder Pal Singh as Ext. PW65/G1 to Ext. PW65/G12. He stated that after a comparison of these documents, he issued the report (Ext. PW84/C) in which he opined that another attempt could be made to examine the documents of the case if extensive specimen handwriting containing similar letters and their combination as occurred in the questioned writing written by dictation and by showing the questioned writing to the suspect. He exhibited the specimen signatures used by him for comparison as S-99 to S-157, (Ext.PW65/E1 to Ext. PW65/E12 and Ext. PW62/A to Ext. PW62/B1 to Ext. PW62/B8, Ext. PW66/J1 to Ext. PW66/J6, Ext. PW66/G1 to Ext. PW66/G12, Ext. PW66/J7 and Ext. PW66/J8). He exhibited the specimen handwriting of Tejinder Pal Singh as Ext. PW65/G1 to Ext. PW65/G12 and Ext. PW66/E1 to Ext. PW66/E6. 79

Neutral Citation No. ( 2025:HHC:33005 )

72. It is apparent that the specimen writing (Ext. PW65/E1 to Ext. PW65/E12, Ext. PW62/A and Ext. PW62/B1 to Ext. PW62/B8) were mentioned by Dr. Visheshwar Shama twice- first when he issued the report (Ext. PW84/C) dated 8.7.2016 and second when he issued the report dated 8.7.2016 (Ext. PW84/D) dated 19.8.2016. He is quite specific in saying in his report (Ext. PW84/C) that it was not possible to express any opinion regarding the authorship or otherwise of the disputed handwriting in comparison with the standard writing stamped and marked as S-99 to S-131. However, he changed his opinion in the report dated 19.8.2016 (Ext. PW84/D) and mentioned that the blue enclosed writing stamped and marked as S-99 to S-119, S-144 to S-157 and red enclosed writing similarly stamped and marked as Q-1 to Q-11 and Q-31 were written by the same person. He has not provided any explanation as to how he was unable to make the comparison of the same specimen handwriting and disputed handwriting while issuing the report dated 8.7.2016 (Ext. PW84/C), but was of the opinion that these were written by the same person when he issued the report dated 19.08.2016 (Ext. PW84/D). Similarly, he was unable to compare S-99 to S- 131 with the questioned handwriting while issuing the report 80 Neutral Citation No. ( 2025:HHC:33005 ) dated 8.7.2016 (Ext. PW84/C), but stated that they were written by the same person and similarities were noticed in various alphabets while issuing the report dated 19.8.2016 (Ext. PW84/D). This casts a serious doubt regarding the report issued by him, which has not been clarified, and the accused is entitled to the benefit of the same. It was laid down by the Hon'ble Supreme Court in C. Kamalakkannan v. State of T.N., (2025) 4 SCC 487: 2025 SCC OnLine SC 476 that the evidence of the handwriting expert must be carefully examined, the reasons for his opinion should be carefully probed, and in appropriate cases, corroboration should be sought. It was observed at page 490:

"13. The locus classicus on this issue is Murari Lal v. State of M.P. [Murari Lal v. State of M.P., (1980) 1 SCC 704: 1980 SCC (Cri) 330], wherein this Court laid down the principles with regard to the extent to which reliance can be placed on the evidence of an expert witness and when corroboration of such evidence may be sought. The relevant paragraphs are extracted herein below: (SCC pp. 707-709, 711-12, paras 4, 6 & 11) "4. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very 81 Neutral Citation No. ( 2025:HHC:33005 ) high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -- the quality of credibility or incredibility being one which an expert shares with all other witnesses -- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect the science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of the identification of fingerprints has attained near perfection, and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting identification is not nearly so perfect, and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, however, the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and does not decide. ...

***

6. Expert testimony is made relevant by Section 45 of the Evidence Act, and where the court has to form an opinion upon a point as to the identity of handwriting, the opinion of a person "specially skilled" in questions as to the identity of handwriting is expressly made a relevant fact. ... So, corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert, and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard-and-fast rule, but nothing will justify the rejection of the opinion of an 82 Neutral Citation No. ( 2025:HHC:33005 ) expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.

***

11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts, and sentences torn out of context from the judgments of this Court are often flaunted."(emphasis supplied)

73. It was submitted by Mr J.S. Guleria, learned Deputy Advocate General for the respondent State, that the police had collected more samples of the handwriting of the accused Chander Sharma and Tejinder Pal Singh, which enabled the Handwriting Expert to carry out the comparison. This submission would have been acceptable had the comparison been made with the specimen handwriting collected subsequently.

Neutral Citation No. ( 2025:HHC:33005 ) However, the Handwriting Expert examined the specimen handwriting taken on the earlier occasion as well, regarding which he was unable to express any opinion, and found that they were similar. Therefore, the submission that the collection of subsequent handwriting enabled the Handwriting Expert to carry out the comparison is not acceptable, and it is difficult to place reliance upon the report of the Handwriting Expert. Since we have rejected the evidence of the handwriting expert; hence, it is unnecessary to refer to the judgments cited at the bar dealing with the testimony of the handwriting expert.

74. Learned Trial Court also relied upon the call details record to hold that the location of the accused showed their presence near the place of the incident and thereafter at Navbahar, where flat No.22 is located. It was held that the accused Chander Sharma, Tejinder Pal Singh, and Vikrant Bakshi were in touch with each other on 14.6.2014. Vikrant Bakshi was present near the Dwarkagarh building between 7:51 and 9:46 pm. Thereafter, he was present in the Navbahar area at 10:27 pm as well as at 12:13 and 12:14 pm on 15.6.2014. This inference cannot be drawn from the evidence led before the learned Trial Court. It has been stated in Digital Forensics for Legal Professionals:

Neutral Citation No. ( 2025:HHC:33005 ) Understanding Digital Evidence from the Warrant to the Courtroom by Larry E. Daniel and Lars E. Daniel, Syngress (2012), that cellular networks are designed for billing and not for tracing the location of the subscriber. It is observed at page 225:

"Call detail records are coming into play more often in cases every day. The purpose of the call detail records is to bill customers for cellular usage. However, they are also being used in court to attempt to place the cell phone user in a geographical location based on the tower used by the cell phone to send or receive a phone call, text message, or Internet data connection. This kind of evidence is fraught with potential misunderstanding by courts and juries alike and should be treated accordingly.

The purpose of the cellular network is to allow cellular phone companies to provide wireless phone calls and data transfer at the least expensive cost in terms of infrastructure, power usage, and coverage area. The cellular system was not designed to locate cellular phones beyond simply knowing if a cell phone can be reached to connect a call. In other words, cellular mobile phone networks are optimized for capacity and call handling, not for the location of cellular phones."

75. The learned authors say that the call detail record cannot pinpoint the location of a person but only the area within which he might be located. It was observed at page 232:

"One of the most important things to remember is that a cell phone cannot be located from a historical call detail record. The best that can be done is that the phone can be placed in a general area corresponding to a cell tower that was connected to the phone at a particular time when a call was made or attempted."

Neutral Citation No. ( 2025:HHC:33005 )

76. Devender Verma (PW73) stated in his cross- examination that the range of the signal via air is within one kilometre of the radius if the tower is located in Abadi. He volunteered to say that the range can be more than one kilometre if there is no Abadi. Ankur Pathak (PW74) stated in his cross- examination that the signal range of the tower of Reliance is within a radius of 200 meters. Yuv Raj Sexana (PW75) stated that the signal range of the tower of Aircell is 1- 1 ½ kilometres, which depends upon the population.

77. Therefore, all the telecom officials are unanimous in saying that the range of signal of the tower can vary from 20o meters to 1-1 ½ kilometres. Consequently, no inference can be drawn that a person was at a particular location without any corroborating evidence. The only inference which can be drawn from the call details record is that the person was within the range of 1 ½ kilometres without pinpointing any particular point.

78. Deepak Kumar (PW34) examined the call details record of the mobile phones of Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi. He determined the tower location with the help of the N-Konnect software/website. He prepared the geographical location and took the printout (Ext. PW34/B). The 86 Neutral Citation No. ( 2025:HHC:33005 ) disclaimer on the reports mentions that the data was collected from an open-source database, so it might be wrong sometimes. If accurate data were to be plotted, an email could be sent so that accurate results could be generated. Therefore, the report itself disclaims the accuracy of the data. It is not shown that the police had sent the mail to N-Konnect to get accurate data. Therefore, the report cannot be used to pinpoint the location of the accused on different dates.

79. It was submitted that the disclosure statements made by the accused showed various steps taken by them while committing the crime, and the report corroborates the contents of the statement. This submission is not acceptable. Learned Trial Court held the disclosure statements to be inadmissible because nothing was recovered pursuant to these statements. Therefore, the statements cannot be used for any purpose whatsoever, including for corroboration of the report (Ex.PW34/B).

80. Reliance was also placed upon the statement of Deepak Kumar (PW40) to establish the presence of Chander Sharma near the parking of Gurdwara; however, Deepak Kumar (PW40) specifically stated that he had not seen Chander Sharma 87 Neutral Citation No. ( 2025:HHC:33005 ) on 14.6.2014. He was permitted to be cross-examined, and he stated in his cross-examination that it might be possible that on 14.6.2014, Chander Sharma had met him at the Gurdwara. Therefore, he has only admitted to the possibility of Chander Sharma being present at the Gurdwara, which is not sufficient to implicate Chander Sharma. Moreover, the mere presence of accused Chander Sharma at Gurdwara on 14.6.2014 does not implicate him unless any evidence is led that Yug was also present at Gurdwara on 14.6.2014; however, there is no evidence of this fact.

81. Arvind Kumar (PW44) stated in his examination-in- chief that he saw Yug lying on the bed at about 7:00 pm on 14.6.2014, and he was taking milk. Aakash Gupta (PW7) saw Yug playing with Dhani, daughter of Rikki, on 14.6.2014 at about 7/7:15 pm. He advised Yug to go inside, as it was raining outside. This is the evidence of deceased Yug having been seen alive by any person, and none of the witnesses deposed that the accused Chander Sharma was seen somewhere near Yug at that time. Yug was playing with Dhani and was advised to go inside. He was seen taking the milk lying on the bed, which may have been after the advice or before that. This evidence does not establish the 88 Neutral Citation No. ( 2025:HHC:33005 ) presence of Yug near Gurdwara, and even if Chander Sharma was seen near Gurdwara, it does not show that he was instrumental in the missing of Yug.

82. The learned Trial Court held that the statement made by Chander Sharma that he was waiting for his friend supported the prosecution case that accused Chander Sharma first went to the godown of Tejinder Pal Singh from where Chander Sharma directed Tejinder Pal Singh to wait for him and Vikrant Bakshi in the parking of Gurdwara from where Yug was taken to house No.22, Housing Board Colony, Jakhu. The prosecution's case that Yug was taken to the godown of Tejinder Pal Singh, from where he was taken to the parking lot of the Gurdwara, and thereafter to house No.22, is not deposed by any person in the Court. Therefore, the learned Trial Court erred in holding that the presence of Chander Sharma at Gurdwara proved his complicity in the commission of the crime.

83. Therefore, the statement of the handwriting expert and the call detail records were not sufficient to prove that the accused had kidnapped Yug.

Neutral Citation No. ( 2025:HHC:33005 ) Circumstance No.7.

84. Uma Shankar Gupta (PW3) stated in his examination- in-chief that Vinod Gupta had informed him regarding the disappearance of Yug. He searched for Yug from the Cart Road to the Parking near the Lift, as well as the Parking of the High Court. He stated in his cross-examination that the relationship between Chander Sharma and Vinod Gupta was cordial, and the daughters of Vinod Gupta, @ Bablu, were getting tuition from the mother of Chander Sharma. Chander Sharma was searching for Yug because of the cordial relationship. Similarly, Arun Kumar Gupta (PW4) stated that everybody searched for Yug. Ashok Kumar (PW5) stated in his cross-examination that a search for Yug was made during the whole night. Vimal Rattan (PW6) stated that he had searched for Yug with his team till 2-2:30 am, and other teams were also searching for Yug. Tejinder Pal Singh was not with his team, nor had he searched for Yug on that day. Pinki Gupta (PW64) stated in her cross-examination that her daughters were getting tuition from the mother of the accused, Chander Sharma. Vinod Gupta (PW70) stated in his cross-examination that the accused Chander Sharma had helped him in the search for his son on some occasions. Chander Sharma used to inquire about the 90 Neutral Citation No. ( 2025:HHC:33005 ) places he had searched. He could not foresee that Chander Sharma had kidnapped his son, Yug. Thus, it is apparent that many persons, including Chander Sharma, were searching for Yug after he was found missing.

85. Vinod Gupta (PW70) stated in his examination-in- chief that many persons had gathered when the news of the disappearance of Yug was spread. Tejinder Pal Singh and Chander Sharma came to the spot. Chander Sharma inquired as to what had transpired, upon which he revealed that Yug was not traceable. He inquired from Vinod Gupta whether the search had been made in the Dwarkagarh building or not. Tejinder Pal Singh said that the children used to play hide and seek in his godown, and he requested Vinod Gupta to check the godown. The godown was checked, but Yug was not found. Accused Chander Sharma requested Vinod Gupta to take a photograph of Yug and asked him to go to the police station. He, Chander Sharma, Tejinder Pal Singh and other relatives went to the police station where the photograph of Yug was handed over. Search was made for Yug till 4:00 am, and Chander Sharma remained with him.

86. Thus, it was proved that the accused Chander Sharma had searched for Yug with the other persons, but it was not 91 Neutral Citation No. ( 2025:HHC:33005 ) proved that he had shown any extraordinary interest in searching for Yug.

Circumstance No.8

87. Inspector Manish Chauhan (PW97) stated that Vikrant Bakshi, Chander Sharma, Tejinder Pal Singh and Gaurav were arrested in FIR No. 6/15. This was not suggested to be incorrect. Accused Vikrant Bakshi, on the other hand, stated in reply to Question No. 600 that he was falsely implicated in FIR No. 6/15 because the CID could not solve the case; hence, Vikrant Bakshi did not dispute his implication in FIR No. 6/15. The documents on record also proved that Chander Sharma, Vikrant Bakshi and Tejinder Pal Singh were arrayed as accused in FIR No. 6/15. It was also duly proved on record, as held above, that the personal search of the accused was conducted during which the police recovered mobile phones.

88. It was submitted on behalf of the accused that the police had mentioned the IMEI Number of the mobile phones in the seizure memos, but did not mention the memory cards. Reference was made to the seizure memos (Ext. PW36/B and Ext. PW36/D), wherein mobile, SIM Number and IMEI Numbers were mentioned, but memory cards were not mentioned. It was 92 Neutral Citation No. ( 2025:HHC:33005 ) submitted that the failure to mention memory cards shows that no memory cards were found, and they were introduced subsequently. This submission is not acceptable. Inspector Manish Chauhan (PW97) proved the seizure memos. He stated that a mobile phone and other articles were recovered from Tajinder Pal Singh, a mobile phone along with SIM was recovered from Vikrant Bakshi, a mobile phone along with SIM was recovered from Gaurav and one mobile phone, SIM, other articles and an identity card were recovered from Chander Sharma. These were put in a cloth parcel.

89. There is no evidence that mobile phones were opened to notice whether they contained a memory card or not. Manish Chauhan (PW97) was not cross-examined to find out whether the mobile phones were opened by him at the time of the seizure or not. Similarly, Balwant Singh (PW86) deposed about the recovery of various articles during the personal search of the accused. He has nowhere deposed that mobile phones were opened to determine whether they contained memory cards or not. The photographs of the Samsung mobile phone of Samsung were produced during arguments by learned counsel for the accused to demonstrate that the SIM card is accessible only by 93 Neutral Citation No. ( 2025:HHC:33005 ) removing the battery. This photograph will not help the accused; firstly, it was not shown to the witnesses, and secondly, there is no evidence that the back covers of the mobiles were removed. Therefore, there can be no question of noticing whether the memory card was present in the mobile phone or not.

90. It was submitted that the police had recorded the SIM number, which is not possible without opening the mobile phone. This submission overlooks the fact that the SIM Number is not printed on the SIM; rather, the serial number of the SIM is printed on the SIM. Therefore, it is not necessary to access the SIM to know the number allotted to it by the cellphone operator. The submission would have been acceptable had the serial number of the SIM been mentioned by the police. Thus, the submission that the police had opened the back covers of the mobile phones and had failed to notice the memory card making the recovery of the memory card suspicious cannot be accepted.

91. HC Nikka Ram (PW 87) was posted as MHC in the Police Station, New Shimla. He proved that three parcels were deposited with him. He made the entry at Sr. No. 192/15/15 and kept the parcel in Malkhana. He forwarded one parcel sealed with seal 'G' to the Court as per the order passed by the Court. LHC 94 Neutral Citation No. ( 2025:HHC:33005 ) Shanta took the parcel to the Court. She brought the card, the order of the Court and the parcel in which the mobile phone of Gaurav was sealed. He admitted in his cross-examination that he had made an entry that a cloth parcel sealed with seal 'G' in which the mobile phones of Chander Sharma, Tejinder Pal Singh, Vikrant Bakshi and Gaurav, along with SIM and battery, were deposited with him.

92. It was submitted that the mention of the battery and the SIM in entry No. 192/15/15 makes it probable that the back covers of mobile phones were opened. This submission is not acceptable. It is nobody's case that this witness was present at the time of the recovery. The seizure memo does not mention any battery. The mobile phones were handed over to him in a sealed parcel. There is no evidence that he had ever opened the parcel; hence, the battery mentioned by him is of no consequence because it is based upon his opinion, the source of which is not known, and the opinion cannot be used to conclude that the back covers of mobile phones were opened.

93. Therefore, it was duly proved that the accused were arrested in FIR no. 6/15 and their mobile phones were seized by the police.

Neutral Citation No. ( 2025:HHC:33005 ) Circumstance No. 9

94. Sonal Thama (PW91) stated that an application was filed before her by ASI Rajesh for transferring the case property recovered during the personal search in FIR No. 6/15 to FIR No. 77/14. She sought the response of the SHO, Police Station, New Shimla and passed an order directing the SHO/In-charge Malkahna to produce the case property in the Court. The case property was produced by LHC Shanta, and she passed an order (Ext. PW87/B). She stated in her cross-examination that the seizure memo was not annexed to the application.

95. Sonal Thama (PW91) is a Judicial Magistrate and has no interest in supporting any person; therefore, her testimony has to be accepted as correct, and it is duly proved that an application for transferring the case property in FIR No. 6/15 was filed before her, and the case property was transferred to FIR No. 77/14 (present case).

96. LHC Shanta (PW92) stated that she produced the case property on 2.8.2016 pertaining to FIR No. 6/15 in the Court. It was a parcel sealed with six seals of Seal 'G'. The parcel was opened in the Court. One mobile phone of BlackBerry belonging to Chander Sharma, one mobile phone of Samsung belonging to 96 Neutral Citation No. ( 2025:HHC:33005 ) Tejinder Pal Singh and one mobile phone of Samsung along with a memory card and a SIM card belonging to Vikrant Bakshi were lying in the parcel. The Court prepared an inventory and took the photographs. The SIM Cards, Memory Cards and battery were put in separate cloth parcels, and these were sealed with three seals of 'Civil Nazir', Shimla. The mobile phone of Gaurav, the memory card and the battery were sealed in the cloth parcel brought from the Police Station, New Shimla. The inventory was prepared, and photographs were taken. She identified the case property in the Court. Her statement is duly corroborated by the order passed by Ms. Sonal Thama (PW91) and is to be accepted as correct.

97. Therefore, the learned Trial Court had rightly held that the case property was transferred from FIR No. 6/15 to FIR No. 77/14.

98. Sonal Thama (PW91) passed an order (Ext. PW87/B), in which she mentioned that the mobile phones of Tejinder Pal Singh, Chander Sharma and Vikrant Bakshi were handed over to Suresh, whereas the mobile phone of Gaurav was handed to LHC Shanta. Sub-Inspector Suresh (PW103) stated that the case property was transferred by the learned Judicial Magistrate First Class to the present case from FIR No. 6/15. He deposited it at the 97 Neutral Citation No. ( 2025:HHC:33005 ) Police Station, CID Bharari. Thus, it was duly proved on record that the mobile phones were handed over to the Investigating Officer of the present case.

Circumstance No.10

99. Dr. Jagjit Singh (PW77) stated that he received one sealed parcel bearing three seals of 'Civil Nazir Shimla'. The parcel was cut and opened, and three mobile phones, (1) BlackBerry 9810, (2) Samsung GTN-7100, and (3) Samsung GT- N7100, along with batteries, were found. These were marked as Ext. IA, Ext.-2 and Ext.-3. When the mobile phone BlackBerry 9810 (marked as Ext. IA) was opened, a micro-SIM card, Tata Docomo, with a cardholder was found, which was marked as S1. The mobile phone Samsung GTN7100 was marked as Ext.-2. It was opened in the laboratory in which one micro-SIM card Airtel and one micro SDHC 8GB card were found, which were marked as S-2 and Q-1. The mobile phone Samsung GT N-7100 was marked as Ext.-3, and when the same was opened, it contained one micro-SIM card from Airtel and one memory card. These were marked S-3 and Q-2. The third parcel sealed with three seals of Seal 'H' was received, which was cut and opened, and the same was found containing one photograph stated to be of master Yug 98 Neutral Citation No. ( 2025:HHC:33005 ) Gupta. The photograph was marked as C-1. The data was extracted with XRY version 6.14. Clicked photographs and short video clips of the child having a face that appeared similar to the face of the child shown in the photograph were found to be present in the data extracted from the memory card marked as Q-2. All the clicked photographs and short video clips of the child, along with metadata, were exported in the XRY-generated report of Q-2; however, no relevant audio could be found in the data extracted from the memory card marked Q-2. Neither SMS/received/sent on 14.6.2014 and 15.6.2014 nor any relevant SMS could be found in the data extracted from the mobile phone marked as Ext.-1 and Ext.-2, SIM cards marked as S-1 to S-3 and micro cards Q-1 and Q-2. No clicked photographs/video clips of the child having a face similar to the face of the child shown in photograph C-1, nor relevant audio could be found in the data extracted from the mobile phones marked as Ext.-1 and Ext.-2, and the memory card marked as Q-1. Mobile phones marked as Ext. IA and Ext.-3 were found to be encrypted with PIN and pattern, respectively, and it was not possible to extract data from the mobile phones marked Ext. IA and Ext. -3 with XRY version 6.14. However, he advised that another attempt could be made if 99 Neutral Citation No. ( 2025:HHC:33005 ) the decryption pin and pattern were provided. He prepared the soft copy of the XRY-generated report of Q-2, along with exported photographs and frames from the video clips, as well as the hard copy of the XRY-generated report of Q-2. He put the CD (Ext. P-120) in the parcel (Ext. P-121) and issued the report (Ext.P77/E). He also issued the hard copy (8 leaves) (Ext. PW77/F), and Ext. PW64/C1 to Ext. PW64/C7. He annexed a soft copy of the XRY-generated report of Q-2, along with exported photographs and frames from video clips and a photograph marked as C-1, to the Physics and Ballistic Division on two sealed parcels bearing the seal impression 'SFSL' for further examination. He identified the mobile phone of Chander Sharma along with battery and SIM, the mobile phone of Vikrant Bakshi along with SIM and memory card, the mobile phone of Tejinder Pal Singh along with battery, SIM Card and memory card. He stated that the Memory card (Ext. Q-2, now Ext. P-108) was found on the mobile phone of Vikrant Bakshi, from which the data was retrieved. He stated in his cross-examination that he had studied anthropology as one of his subjects in the M.Sc. in Forensic Science. He admitted that an authentic technique was available to determine whether an electronic gadget, like a 100 Neutral Citation No. ( 2025:HHC:33005 ) mobile or computer, had been tampered with for deleting or implanting data. He admitted that computer hardware could be tampered with to delete or implant data. He volunteered to say that the mobile phone and memory card were not tampered with in the present case. He denied that a mobile phone, along with a SIM card and memory card, was not sent to him, and he prepared the CD at the instance of the police.

100. It was submitted that this witness admitted in his cross-examination that the computer hardware could be tampered with for implanting data, and this makes the recovery of the data useless in the present case. This submission is not correct. It is trite to say that the statement of a witness is to be read as a whole, and it is impermissible to take out a stray sentence from the statement without any context and read it in favour of the prosecution or the accused. When the testimony of this witness is read as a whole, it is apparent that the deletion or implantation of data can be detected by the available technique. He also categorically stated that the mobile phone and memory card were not tampered with in the present case. Hence, the combined effect of his statement is that even though it may be possible to delete or implant data, this can be detected by the 101 Neutral Citation No. ( 2025:HHC:33005 ) available technique, and no such implanting or deletion was detected in the present case. Hence, his report cannot be discarded because of the possibility of implanting or deletion of the data.

101. This witness categorically stated that the photographs and the video clips of the child whose photographs were sent to him were found in the memory card taken out of the mobile phone of Vikrant Bakshi. He had also found other data besides the photographs, therefore, his testimony duly proved that the mobile phone of Vikrant Bakshi had a memory card containing the photographs and the video recording of Yug.

102. It was submitted that the video recording was prepared between 9:43 pm to 9:51 pm, whereas the photographs were taken between 20:52 to 20:53 on 21.6.2014. This is highly suspicious because there was no justification for taking the repeated photographs and the recording within nearly one hour. This submission does not help the defence. It is difficult to guess the workings of the human mind, and the fact that the photographs were taken and the recording was made within one hour will not help any person. However, the presence of the photographs and the video recording on the mobile phone of 102 Neutral Citation No. ( 2025:HHC:33005 ) Vikrant Bakshi shows that he had seen Yug alive and had taken the photographs and carried out the video recording on 21.6.2014.

103. It was submitted that the photographs and the video recording could have been sent to the accused, Vikrant Bakshi, by some other person as well, and the mere existence of the photographs and video recording is not sufficient to connect the accused with the commission of crime. There can be no dispute with the fact that the photographs and the video recording could have been sent to the accused by some other person as well. However, no such explanation was provided by the accused. While dealing with a similar submission in case of recovery, it was held by the Hon'ble Supreme Court in State of Maharashtra v. Suresh, (2000) 1 SCC 471: 2000 SCC (Cri) 263: 1999 SCC OnLine SC 1306 that where the accused does not provide any explanation about his knowledge of the concealment, the only inference which can be drawn is that he had concealed the article. It was observed at page 479:

"26. We too countenance three possibilities when an accused points out the place where a dead body or incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed 103 Neutral Citation No. ( 2025:HHC:33005 ) there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

104. It was submitted that the ransom note (Ext. PW5/A) mentioned that the amulet and audio recording of Yug were sent with the note. Vinod Gupta claimed that no such recording was received by him. The possibility of the memory card having been sent with the ransom note could not be ruled out. This submission is only stated to be rejected. It was categorically stated by Dr Jagjit Singh (PW77) that no audio recording was found in the data retrieved from the memory card of the mobile phone. The ransom notes specifically stated that the voice of Yug was being sent with the note; therefore, the absence of any audio recording on the memory card will show that it was not sent with the ransom note.

105. Further, there is no reason why the police would put the memory card annexed to the ransom note on the mobile phone of Vikrant Bakshi. The explanation that the police were 104 Neutral Citation No. ( 2025:HHC:33005 ) unable to solve the crime, and that the police picked up the accused as easy prey, is not acceptable. Vinod Gupta (PW70) stated that he had received the ransom note on 27.6.2014. This version is duly corroborated by Arvind Kumar (PW44), who stated that he found letters at the time of opening the shop on 27.6.2014. Thus, the police had the ransom note and the recording with them (as per the defence) on 27.6.2014. The accused were arrested in FIR No. 6/15. The personal search of the accused was conducted on 27.3.2015 as per the memos of personal search (Ext. PW35/B1-B2, and Ext.PW36/E). The application for transfer of the case property was filed on 23.7.2016 as per the statement of Ms. Sonal Thama (PW91). The police would not have waited for more than two years to frame a person if they were so desperate to falsely implicate any person. They had the memory card (as per the defence) in the year 2014, and they would have implicated anyone by putting the memory card in the mobile phone of any person. Therefore, in the present circumstances the submission that the police had falsely implicated the accused because they were unable to solve the crime cannot be accepted.

105

Neutral Citation No. ( 2025:HHC:33005 )

106. The identity of the mobile phone is duly proved by the IMEI number mentioned in the report and the seizure memo. This is the same mobile which was purchased by accused Chander Sharma and was gifted to accused Vikrant Bakshi on his birthday. Therefore, it was duly proved that the mobile phone of Vikrant Bakshi had a memory card containing the video recording and photographs of Yug.

Circumstance No.11

107. Bhupender Brakta (PW104) stated that Vikrant Bakshi, Chander Sharma and Tejinder Pal Singh were associated with the investigation on 22.8.2016. They were separately interrogated. ASI Anil was directed to bring independent witnesses. Krishan Dutt Pradhan, Gram Panchayat, Bhont, was brought by ASI Anil. Krishan Dutt and ASI Subhash were associated as witnesses. All three accused were separately interrogated in the presence of Krishan Dutt and ASI Subhash. Accused Vikrant Bakshi was called inside the office. Accused Chander Sharma and Tejinder Pal Singh were kept in separate rooms. Vikrant Bakshi disclosed in the presence of Krishan Dutt and ASI Subhash that he could identify the place where he, Tejinder Pal Singh and Chander Sharma had thrown the boy Yug 106 Neutral Citation No. ( 2025:HHC:33005 ) after tying him with a concrete slab, which place was known only to him, Chander Sharma and Tejinder Pal Singh. The disclosure statement (Ext. PW53/A) was signed by the accused Vikrant Bakshi, and it was witnessed by Krishan Dutt and ASI Subhash. Vikrant Bakshi was ordered to be kept in a separate room. Accused Chander Sharma was called inside the room, and an inquiry was made from him in the presence of ASI Subhash and Krishan Dutt. He revealed in the presence of Krishan Dutt and ASI Subhash that he could identify the place where he, Vikrant Bakshi and Tejinder Pal Singh had thrown the boy Yug after tying him with the concrete slab. The place was only known to him, Vikrant Bakshi and Tejinder Pal Singh. The disclosure statement (Ext. PW53/B) was signed by Chander Sharma and witnessed by Krishan Dutt and ASI Subhash. Chander Sharma was sent to a separate room. Tejinder Pal Singh was called, and an inquiry was made from him in the presence of ASI Subhash and Krishan Dutt. Tejinder Pal Singh revealed that he could identify the place where the boy, Yug, was thrown after tying him to the concrete stone. The place was only known to him, Vikrant Bakshi and Chander Sharma. The disclosure statement was signed by Tejinder Pal Singh and witnessed by Krishan Dutt and ASI Subhash. All the 107 Neutral Citation No. ( 2025:HHC:33005 ) accused, Chander Sharma, Tajinder Pal Singh and Vikrant Bakshi, led the police team, Krishan Dutt and ASI Subhash to the water tank near Keleston, located at a distance of 1½ kilometres from the Police Station, CID Bharari towards Longwood. Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi pointed towards the water tank and disclosed that this was the same water tank in which the boy Yug was thrown after tying him to the concrete slab. Chander Sharma opened the lid of the tank. The water was found in the tank. The Municipal Corporation, Shimla, officials and the team of FSL were called to the spot. The official from the Municipal Corporation, Shimla, drained the water from the tank. The tank was made empty. The water remained in the tank at a level of 8-9 inches. Chander Sharma entered the tank, followed by ASI Subhash. Thereafter, accused Vikrant Bakshi entered the tank, followed by Krishan Dutt. Tejinder Pal Singh entered the tank, followed by ASI Anil. He and the team of FSL also entered the tank. Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi identified the concrete slab, which was lying in the tank near the lower end of the ladder, and a plastic strip was tied to the stone. Photographs of the spot were taken. The slab was lifted by the team of FSL. Pieces of small bones and a SIM card were also 108 Neutral Citation No. ( 2025:HHC:33005 ) found. The FSL team collected the small bones and the SIM card. The FSL team inspected the outer portion of the tank. The silt was dumped around the tank. The FSL team collected the bones from two places near the ladder. One piece of bone was found near the outlet pipe. The bones were put in the foil paper. These were put in four plastic jars. SIM was put in the empty matchbox, and it was put in a parcel. The concrete slab, along with a strip, was put in a cardboard box, and the box was put in the cloth parcel. The parcel was sealed and seized vide seizure memo (Ext.PW53/D). He stated in his cross-examination that the date of cleaning the tank was mentioned on the outer wall of the tank. He was not aware whether the tank was cleaned in January 2016 or July 2016. He did not remember the storage capacity of the tank, but it could be 12.50 lac litres. The tank was half-filled on 22.8.2016. The silt was left in the tank when it was emptied. Silt and the water to a level of 7-8 inches were not drained out. The water drained towards the lower side of the rivulet after the tank was emptied. He denied that he had directed Anil to bring any person known to him. He denied that the stone was kept by the Municipal Corporation, Shimla, as a stepping stone, and it was tied to the ladder. He denied that the accused had not made any 109 Neutral Citation No. ( 2025:HHC:33005 ) disclosure statements and that they had not led the accused to the tank.

108. The testimony of this witness is duly corroborated by the statement of Krishan Dutt (PW53). He stated that he was the Pradhan of the Gram Panchayat, Bhont. On 22.8.2016, he visited the Bharari market. A police official met him and told him that the case of Yug was to be discussed. He was directed to visit the Police Station, CID Bharari. He reached the office of Deputy Superintendent of Police Bharari at about 2:00 pm. Deputy Superintendent of Police Bharari, 2-3 policemen, and ASI Subhash were present in the room. Deputy Superintendent of Police Bharari called a boy, who disclosed his name as Vikrant Bakshi. Vikrant Bakshi disclosed that he could identify the place where he, Chander Sharma and Tejinder Pal Singh threw Yug in the water tank after tying a stone to him. A paper (Ext. PW53/A) was prepared, which was signed by Vikrant Bakshi. He and ASI Subhash also put their signatures as witnesses. The second boy was called by Deputy Superintendent of Police Bharari after some time, who disclosed his name as Chander Sharma. Chander Sharma disclosed that he could show the place where Yug was thrown into the water tank after tying him with the stone and the 110 Neutral Citation No. ( 2025:HHC:33005 ) rope. A paper (Ext. PW53/B) was prepared. A third boy was called, who disclosed his name as Tejinder Pal Singh. He stated that he could identify the place where Yug was thrown into the water tank after tying him to the rope. This fact was in his knowledge and the knowledge of Chander Sharma and Vikrant Bakshi. A paper (Ext. PW53/C) was prepared. Accused Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi led the police party towards Longwood on foot. Accused Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi made a sign towards the water tank located at Keleston, Shimla, towards the lower side of the road. They said that the tank was the same where they had thrown Yug after tying the stone with him. All the accused took them near the lid of the tank. Chander Sharma opened the lid and pointed out that this was a place from which Yug was thrown into the tank. The other two accused also said that this was the place where they had put Yug after tying him. The tank was filled with water. The IPH team was called to the spot, and the tank was emptied. The team of FSL also reached the spot. He, Chander Sharma, ASI Subhash, Vikrant Bakshi, Tejinder Pal Singh and the members of the FSL team also entered the tank, followed by the policemen. There was silt in the tank to the extent of 5-6 inches. 111

Neutral Citation No. ( 2025:HHC:33005 ) Accused Chander Sharma, Tejinder Pal Singh and Vikrant Bakshi pointed towards the stone and said that this was the same stone with which Yug was tied and put in the tank. The stone was near the iron ladder meant for entry into the tank. Ropes of plastic were tied to the stone. Some bones and a SIM card were found. These were seized by the police, and they were put in different cloth parcels. He identified the SIM card, the stone and the bones. He stated in his cross-examination that the police came to Bharari to meet a councillor. He alone had gone to the CID office. Anil was known to him for 4-5 years. ASI Subhash was introduced by Deputy Superintendent of Police Bharari on the same day. He did not know the boy who was called first. The boy made the statement voluntarily. He did not know that the accused had made the statement after they were beaten. He denied that no statements were made in his presence. He stated that the water tank was located at a distance of half a kilometre from the police station. They had gone to the water tank on foot. He did not notice any person on the road. His statement was recorded at about 6/6:30 pm. The tank was empted in his presence. There was a road on one side of the tank and a Jungle (Forest) on the other side. It took about 45 minutes to empty the 112 Neutral Citation No. ( 2025:HHC:33005 ) tank. He did not know that the tank was cleaned every six months. He did not know that the stone was used as a stepping stone. The water came out of the tank with pressure, and some articles also came out with the water. Stone, bones and a SIM card were found in the tank. The tank was not fully empty, and some silt and water remained in the tank. He volunteered to say that some bones were found outside the tank. The official of IPH revealed that the bones were found while cleaning the tank. The bones could be of a monkey or a langur. He denied that he was not present or that the stone was put by the IPH team. He stated that he did not join the investigation in any other case except the present case.

109. He is the Pradhan of the area, and there is nothing in his cross-examination to show that he was making a false statement. He categorically denied that no statements were made or no recovery was made in his presence. He admitted that he knew ASI Anil. The mere fact that he knew ASI Anil is not sufficient to cast doubt on his testimony. He is Pradhan and the elected representative of the area; therefore, the acquaintance with ASI Anil will not cast any doubt regarding his integrity. It is not shown that he is under the influence of police or prepared to 113 Neutral Citation No. ( 2025:HHC:33005 ) depose falsely at the instance of the police; therefore, his testimony cannot be discarded because of acquaintance with the police.

110. It was suggested to this witness that the bones could be of a monkey or a langur. This suggestion will not make the prosecution's case suspect. The bones were examined by Dr. Sangeet Dhillon (PW51), who stated in her examination-in-chief that the bones were of a human being. It was not suggested to her that the bones belonged to a monkey or a langur. She was the best person to depose about the origin of the bones, being a Forensic Expert. The fact that she was not asked about the origin of the bones means that her testimony that the bones belonged to a human being was accepted as correct by the defence.

111. Dr. Sangeet Dhillon sent the bones to the Government Dental College, Shimla, where they were examined by Dr. Nita Sharma (PW69). She said that a human mandible was sent to the Dental College in a parcel. The estimated dental age was between 4 to 5 years. She was not cross-examined regarding her statement that a human mandible was sent to her for examination, and this part of her testimony is also to be accepted as correct.

114

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112. Therefore, the testimonies of Dr Sangeet Dhillon and Dr Nita Sharma proved that the bones had a human origin, and the suggestion made to the witnesses that the bones could be of monkey or langur is not acceptable.

113. The blood samples of Vinod Gupta (PW70) and Pinki Gupta (PW64) were taken by Dr. Amar Chand (PW50). He stated that the police called Vinod Gupta and Pinki Gupta on 28.7.2016 for DNA profiling. He filled in the identification form of Vinod Gupta (Ext.PW50/A) and Pinki Gupta (Ext.PW50/B). He attested their photographs and thumb impressions on the identification form. The FTA Card produced before him was sealed in the company's packaging. He obtained the blood samples of Vinod Gupta and Pinki Gupta on FTA cards and sealed them with the seal 'CMOS'. He identified the FTA card and the identification form. He denied in his cross-examination that he had not obtained the blood samples of Vinod Gupta and Pinki Gupta on an FTA Card. He denied that he was making a false statement. He is a Medical Officer, and nothing was shown in his cross- examination that he had any motive to depose against the accused. Pinki Gupta (PW64) stated that her blood sample and the blood sample of her husband were taken at D.D.U. Hospital. 115

Neutral Citation No. ( 2025:HHC:33005 ) She identified her identification form (Ext. PW50/B). Vinod Gupta (PW70) also stated in his examination-in-chief that his blood samples and the blood sample of his wife, Pinki Gupta (PW64), were taken at D.D.U. Hospital, Shimla, by the Doctor. He also identified the identification forms ( Ext.PW50/E and (Ext. PW/50/B). Therefore, it is duly proved by the statements of these witnesses that the blood samples of Pinki Gupta and Vinod Gupta were taken by the Medical Officer at D.D.U. Hospital (Zonal Hospital) during the investigation.

114. Vivek Sehaj Pal (PW 90) was posted as Assistant Director with SFSL, Junga. He stated that parcels containing bones were received by him. He also received the FTA cards of Vinod Gupta and Pinki Gupta, duly sealed with the parcel. He isolated/purified the DNA from the femur bone, metatarsal and phalangeal bones. He prepared the DNA profile. He also cut the bone. He denied that the laboratory had no proper equipment or that he had prepared the report at the instance of the police.

115. There is nothing in his cross-examination to show that he was making a false statement. He has given the process of analysis of DNA isolated from the bones and its comparison with the DNA taken from the FTA Card of Pinki Gupta and Vinod 116 Neutral Citation No. ( 2025:HHC:33005 ) Gupta, and as per his analysis, the DNA of the bone was the offspring of Pinki Gupta and Vinod Gupta. Therefore, his report duly proved that the bones were of Yug. It was laid down by the Hon'ble Supreme Court in Manoj v. State of M.P., (2023) 2 SCC 353:

2022 SCC OnLine SC 677 that the report of DNA analysis can be used to corroborate the version of the witness. It was observed at page 431:

151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata [ DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007)] was relied upon. The relevant extracts of the article are reproduced below:

"Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. The average human body is composed of about 100 trillion cells. DNA is present in the nucleus of a cell as a double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes are present in each nucleated cell, and an individual inherits 23 chromosomes from the mother and 23 from the father, transmitted through the ova and sperm, respectively. At the time of each cell division, chromosomes replicate, and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of the alphabet of four nucleotides or bases: Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with the sugar- phosphate backbone. A human haploid cell contains 3 billion bases, approximately. All cells of the body have the same DNA, but it varies from individual to 117 Neutral Citation No. ( 2025:HHC:33005 ) individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in a large number of copies in the mitochondria is circular, double- stranded, 16,569 base pairs in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also, being in a larger number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only a few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.

*** DNA Profiling Methodology A DNA profile is generated from the body fluids, stains, and other biological specimens recovered from evidence, and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with the crime scene can be established. DNA profiling is a complex process of analysis of some highly variable regions of DNA. The variable areas of DNA are termed genetic markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing an Automated DNA Sequencer gives a DNA profile unique to an individual (except for monozygotic twins).

Similarly, STRs present on the Y chromosome (Y-STR) can also be used in sexual assault cases or to determine paternal lineage. In cases of sexual assaults, Y-STRs are helpful in the detection of a male profile even in the presence of a high level of female portion or in case of azoo11permic or vasectomised" male. In cases in which DNA had undergone environmental stress and 118 Neutral Citation No. ( 2025:HHC:33005 ) biochemical degradation, min lists can be used for over routine STR because of shorter amplicon size. DNA profiling is a complicated process, and each sequential step involved in generating a profile can vary depending on the facilities available in the laboratory. The analysis principles, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:

Statistical Analysis Atypical DNA case involves a comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:

(1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.

(2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources. (3) Inconclusive: The data does not support a conclusion of the three possible outcomes; only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP), or in other words, the frequency of the particular DNA profile in a population.

In the case of paternity/maternity testing, exclusion at more than two loci is considered an exclusion. An 119 Neutral Citation No. ( 2025:HHC:33005 ) allowance of 1 or 2 loci possible mutations should be taken into consideration while reporting a match. Paternity or Maternity indices and likelihood ratios are calculated further to support the match.

Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving. DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches an area that may contain the DNA to be tested. The exhibits having biological specimens, which can establish a link among victim(s), suspect(s), scene of the crime for solving the case, should be identified, preserved, packed and sent for DNA profiling."

152. In an earlier judgment, R v. Dohoney & Adams [R v. Dohoney & Adams, (1997) 1 Crl App Rep 369 (CA)] the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert if requested, the databases upon which the calculations have been based.

153. The Law Commission of India, in its Report [ 185th Report, on Review of the Indian Evidence Act, 2003], observed as follows:

120

Neutral Citation No. ( 2025:HHC:33005 ) "DNA evidence involves a comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not "match", then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000: This is described as the "random occurrence ratio" (Phipson 1999, 15 th Edn., Para 14.32).

Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law." (emphasis in original)

154. In Dharam Deo Yadav v. State of U.P. [Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509 : (2014) 2 SCC (Cri) 626] this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp. 528-29, para

36) "36. DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double-stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine, pyrimidines. ... DNA usually can be obtained from any biological material, such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be moot, but the fact remains that such tests have come to stay and are being used extensively in the investigation of crimes, and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century ago, samples of human DNA began to be used in the criminal justice system. Of course, debate 121 Neutral Citation No. ( 2025:HHC:33005 ) lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory."

155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [District Attorney's Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73: 557 US 52 (2009)] dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that: (SCC OnLine US SC) "Modern DNA testing can provide powerful new evidence, unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While, of course, many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. ... DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others."

156. Several decisions of this Court -- Pantangi Balarama Venkata Ganesh v. State of A.P. [Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190] , Santosh Kumar Singh v. State [Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] , State of T.N. v. John David [State of T.N. v. John David, (2011) 5 SCC 509 : (2011) 2 SCC (Cri) 647] , Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , Surendra Koli v. State of U.P. [Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC (Cri) 92] , Sandeep v. State of U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC 122 Neutral Citation No. ( 2025:HHC:33005 ) (Cri) 18] , Rajkumar v. State of M.P. [Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570] and Mukesh v. State (NCT of Delhi) [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need to ensure quality control, about the samples, as well as the technique for testing in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69: (2014) 2 SCC (Cri) 266] : (Anil case [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266], SCC p. 81, para 18) "18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material, such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profiles have also shown a tremendous impact on forensic investigation. Generally, when the DNA profile of a sample found at the scene of a crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. A DNA profile is valid and reliable, but the variance in a particular result depends on the quality control and quality procedure in the laboratory."

157. This Court, in one of its recent decisions, Pattu Rajan v. State of T.N. [Pattu Rajan v. State of T.N., (2019) 4 SCC 771: (2019) 2 SCC (Cri) 354], considered the value and weight to be attached to a DNA report: (SCC p. 791, para

52) "52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. 123

Neutral Citation No. ( 2025:HHC:33005 ) Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."

158. This Court, therefore, has relied on DNA reports in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that, being an opinion, the probative value of such evidence has to vary from case to case."

116. The police had no means of knowing that the bones of Yug were lying in the water tank. At least, nothing was brought on the record to show that the police were aware of the bones of Yug lying in the water tank. The accused made a disclosure statement and led the police to the water tank from where the bones were recovered, which were identified to be those of Yug. Therefore, the statements made by the accused will be admissible under Section 27 of the Indian Evidence Act insofar as they led to the discovery of the bones of Yug.

117. It was submitted that the recovery of the bones from the water tank is highly doubtful. The water tank was cleaned twice a year, and there was no possibility of recovery of bones after two years in the water tank. This submission appears to be attractive, but it cannot withstand scrutiny. 124

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118. Puran Dass (PW37) stated that he was working as a Junior Engineer with the Municipal Corporation, Shimla. Keleston water tank falls within his jurisdiction. The tank used to be cleaned after six months. The tank was cleaned on 29.1.2016 and again in July 2016. He went to the tank on 29.1.2016 when it was being cleaned. 8-9 inches of water remained in the tank despite getting the tank emptied. The water tank had two main holes through which the light entered the tank. The mud/silt taken out from the tank was thrown near the tank. He stated in his cross-examination that the tank used to be cleaned twice a year. The mud was dumped near the tank. The mud/silt was removed by entering the tank. He volunteered to say that the valve was opened and the water was allowed to drain. Mud was taken out on 29.1.2016. No stone was found. The stone was being used as a stepping stone.

119. The testimony of this witness shows that the water tank did not become empty when the water was drained out of it. The water and silt remained in it to the extent of 8-9 inches. This was also stated by the other witnesses. Further, his statement shows that there was no light inside the water tank, and the light used to enter the tank was from the main holes. 125

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120. Ravinder Kumar (Pw42) stated that he was working with the water supply department of the Municipal Corporation, Shimla. There are two water tanks located in his area. The first tank is at Keleston, and the other tank is on the lower portion of the road leading to Bharari. The tank was cleaned in July 2016. He, Paras Ram, Khushi Ram, Sant Ram, Manoj, Raja Ram, Balwant, Hari Ram, Dila Ram and Amar Singh had gone to the spot. The tank had two holes. One is near the ladder and the other is on the side. Light came from these holes. There used to be darkness; the scour pipe was a little bit high, and 9-10 inches of water remained despite emptying the tank. While cleaning the tank, silt was filled in the iron container, and the same was dumped near the ladder outside the tank. Some pieces of bone were found, which were thrown out. Amar Singh was informed about the recovery. There was a stone near the ladder which was being used as a stepping stone. It was made of cement. He stated in his cross-examination that the tank was constructed in the year 2011-2012, and the tank was cleaned in the year 2015. The capacity of the tank was about 3:00 lac litres. There are residences of the Judges on the upper side of the tank. The stone, which was inside the tank, was on the last step, and it was tied 126 Neutral Citation No. ( 2025:HHC:33005 ) with a plastic rope so that it could not move. Thereafter, the tank was cleaned in July 2016. The bones might be of a monkey or a langur. He admitted that the bones come to the tank with water. The Junior Engineer and SDO were not apprised of the recovery of the bones.

121. Hari Ram (PW41) stated that he was working as a key man at Bharari. His area had two water tanks. One is in the Housing Board Colony and the other is at Harwington. The tank was cleaned in January 2016. He, Amar Singh, Balwant, Babu Ram, Raja Ram, Khushi Ram and Ravinder had gone to the tank. There is an iron ladder outside the tank, and there are two lids on the roof of the tank. The light enters the tank through these lids only when the lids are open. He opened the scour pipe, and the tank got empty. The other person entered the tank and cleaned it. 9-10 inches of water remained in the tank despite emptying it. The silt was taken from the tank and thrown to the side. The people cleaning the tank disclosed that they had found bones in it. He stated in his cross-examination that the storage capacity of the tank was 12 lac litres. He did not know when the tank was cleaned before January 2016. The bones might come into the tank from the inlet pipes. He never entered the tank. 127

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122. Amar Singh (PW43) stated that he was posted as a fitter in Lakkar Bazar Zone in the year 2016. His area had two water tanks. One is at Keleston and the other is at Harvington. The Harvington tank was cleaned in January 2016. He, Ravinder, Balwant, Babu Ram, Sant Ram, Khushi Ram, Hari Ram and Dila Ram had gone to clean the tank. There is an iron ladder to climb the tank. The Scour pipe was opened by Hari Ram. The scour pipe was located at a level of 8-10 inches, hence the water remained inside the tank despite opening the scour pipe. He and the labourers entered the tank. They cleaned the tank by putting the silt in the container. The silt was also put in the sack and dumped outside the tank. Ravinder disclosed that some pieces of bone were found. He also had shown these pieces to him. He stated in his cross-examination that there was a stone on the last step of the ladder, but it was not removed because they understood it as a stepping stone. He further stated that there were houses of the Judges adjacent to the tank. He was not aware that the police were deputed for the security of the Judges. The water from the scour pipe was drained out into the Nalla. The water drains out with pressure after opening the scour pipe. He had entered the tank for the first time. He apprised his SDO and Junior Engineer 128 Neutral Citation No. ( 2025:HHC:33005 ) about the recovery of the bones. They did not take out the stone because it was believed that this was a stepping stone.

123. The testimonies of these witnesses show that the tank never became empty, and 8-9 inches of water and silt remained in it after opening the scour pipe. The tank does not have the source of light, and the light enters through the main hole; therefore, there is a distinct possibility that not all the silt was removed while cleaning the tank, and the fact that some pieces of bone remained with the silt in the tank cannot be ruled out. Further, the police had found pieces of bone and a piece of stone, which was not shifted by the cleaners, believing it to be a stepping stone. Thus, the fact that the bones were found beneath the stone is duly explained.

124. Not all the bones were found inside the tank. Some bones were found outside the tank, and these witnesses categorically stated that they had thrown the bones, believing them to be the bones of monkeys or langurs.

125. Dr. Jagjit Singh (PW77) visited the spot as a Forensic Expert. He mentioned that one bone was found at a distance of approximately 20 feet from the outlet of the pipe. The area pinpointed by IPH/MC authorities for throwing the waste 129 Neutral Citation No. ( 2025:HHC:33005 ) material during the cleaning of the tank was forensically examined. Skull pieces, ribs, one jaw, along with teeth and several small bones, were recovered by the team from the spot. The tank was forensically examined from the inside. A rectangular stone having dimensions of 43x25x16 centimetres was recovered. Several bones of varying size and shape were recovered not only from inside the tank, but they were also outside the tank. The recovery of the bones from outside the tank corroborates the testimony of the witnesses that bones were found and thrown during the earlier cleaning. Thus, the fact that the tank was earlier cleaned will not make the prosecution's case doubtful but will strengthen the same.

126. It was submitted that the joint statements made by the accused are inadmissible and cannot be relied upon. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in State (NCT of Delhi) vs Navjot Sandhu@ Afsan Guru, (2005) 11 SCC 600 that the joint statements made one after the other are not inadmissible. However, the Court may have to scrutinize such statements with due care and caution. It was observed: -

Joint disclosures 130 Neutral Citation No. ( 2025:HHC:33005 )

145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused, viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them, leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs 10 lakhs from the truck in which they were found at Srinagar, is in issue.

Learned Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the section to more than one person. But that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused"

need not necessarily be a single person, but it could be a plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally, and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given the unequivocal nod to what had been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously, and both of them may furnish similar information leading to the discovery of a fact. Or, in rare cases, both the accused may reduce the information into 131 Neutral Citation No. ( 2025:HHC:33005 ) writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer) to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of the evaluation of evidence. With these prefatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.

127. This position was reiterated in Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760: (2017) 2 SCC (Cri) 262: 2017 SCC OnLine SC 12, wherein it was observed at page 779:

"34. The fact where the dead body of deceased Raman was disposed of was disclosed by both Accused 2 and 3 to the investigating officer in the presence of S.K. Idris (PW 2), one after another on 12-5-2003 at 0305 hours and 0325 hours respectively. The discovery was made only after Accused 2 and 3 were taken together by the police to the spot in the neighbouring State (Madhya Pradesh), where the recovery panchnama was recorded bearing Ext. 76-A. In other words, the disclosure of the relevant fact by Accused 3 to the investigating officer preceded the discovery of the dead body from the disclosed spot at the instance of both Accused 2 and 3. It was not a case of 132 Neutral Citation No. ( 2025:HHC:33005 ) recording of statement of Accused 3 after discovery nor a joint statement of Accused 2 and 3, but a disclosure made by them separately in quick succession to the investigating officer, preceding the discovery of the fact so stated. The fact disclosed by them, therefore, and the discovery made at their instance, was admissible against both the accused in terms of Section 27 of the Evidence Act.

35. In State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715] (SCC pp. 711-12, para 145), this Court has held that a joint disclosure or simultaneous disclosures, per se, are not inadmissible under Section 27 of the Evidence Act. A person accused need not necessarily be a single person, but it could be a plurality of accused. The Court held that a joint or simultaneous disclosure is a myth because two or more accused persons would not have uttered informatory words in chorus. When two persons in custody are interrogated separately and simultaneously, and both of them may furnish similar information leading to the discovery of a fact which was reduced into writing, such disclosure by two or more persons in police custody does not go out of the purview of Section 27 altogether. What is relevant is that information given by one after the other without any break, almost simultaneously, as in the present case and such information is followed up by pointing out the material things by both of them, then there is no good reason to eschew such evidence from the regime of Section 27. Whether that information is credible is a matter of evaluation of evidence. The courts below have accepted the prosecution version in this behalf, being credible. Suffice it to say that the disclosure made by Accused 3 about the relevant fact, per se, is not inadmissible.

36. Reliance was placed on Aher Raja Khima [Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217: 1956 Cri LJ 426] to contend that incriminating articles alleged to have been recovered at the instance of the accused are inadmissible in evidence if the police already knew where they were hidden. The dictum in the said decision is in the 133 Neutral Citation No. ( 2025:HHC:33005 ) context of the fact situation of that case. The Court found that the police already knew where the articles were hidden. Further, the information was not derived from the accused but from someone else, one of the other suspects.

In that case, the Sub-Inspector to whom the disclosure was made was not examined by the prosecution. The Court also found that articles were not hidden but kept in a manner which might be normally kept in any average household. In the present case, as found by the courts below, the disclosure was made by Accused 2 and 3 in quick succession. The police party, along with witnesses and both the accused, thereafter proceeded to the isolated spot (in a valley) disclosed by the said accused from where the dead body of Raman was discovered. The police officer concerned, as well as the witnesses to the memorandum of statement recorded under Section 27 of the Evidence Act, have been examined by the prosecution and found to be reliable and trustworthy. This reported decision, therefore, does not take the matter any further."

128. In the present case, the accused had made the statements one after the other, and the statements are admissible.

129. It was submitted that the recovery was effected from a tank which was accessible to all, and the recovery cannot be relied upon. This submission is not acceptable. 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 134 Neutral Citation No. ( 2025:HHC:33005 ) 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 hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such an article is disinterred, its hidden state will remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.

27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered, but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it (Pulukuri Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC 67: 74 IA 65] ). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872], K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788], Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330: 1983 SCC (Cri) 447], Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430: 1995 SCC (Cri) 753], State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675: 1997 SCC (Cri) 1032].) 135 Neutral Citation No. ( 2025:HHC:33005 )

130. It was laid down by the Hon'ble Supreme Court in Limbaji v. State of Maharashtra, (2001) 10 SCC 340: 2001 SCC OnLine SC 1460 that merely because the recovery was effected from an open place is not sufficient to discard the recovery and the statement that accused had hidden the articles could be relied upon to show the possession of the accused. It was observed:

"IV(b). [14] We are left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of the accused under Section 27 of the Evidence Act, if the discoveries are to be believed, which ought to be. The next two questions are whether the accused shall be deemed to be in possession of the articles concealed at various spots and whether such possession could be said to be recent possession. But for the decision of this Court in Trimbak v. State of M.P. [AIR 1954 SC 39: 1954 Cri LJ 335], the first question need not have engaged our attention at all. That was a case in which, at the instance of the accused, the stolen property was recovered at a field belonging to a third party, and the accused gave no explanation about his knowledge of the place from which the ornaments were taken out. The High Court, while absolving the appellant of the charge of dacoity, convicted him under Section 411 IPC for receiving the stolen property by applying the presumption that he must have kept the ornaments at that place. On appeal by the accused, this Court took the view that there was no valid reason for convicting the appellant under Section 411 IPC. The Court pointed out that one of the ingredients of Section 411, namely, that the stolen property was in the possession of the accused, was not satisfied. The Court observed thus: (AIR p. 40, para 6) "6. When the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the 136 Neutral Citation No. ( 2025:HHC:33005 ) 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 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 137 Neutral Citation No. ( 2025:HHC:33005 ) 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 a confession or not. Now, the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge had held that part of this statement, which is to the effect 'where he had hidden them', is not admissible. It is clear that if that part of the statement is excised, the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement, in our opinion, relates distinctly to the discovery of ornaments and is admissible under Section 27 of the Indian Evidence Act. The words 'where he had hidden them' are not on par with the words 'with which I stabbed the deceased' in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is, however, urged that in a case where the offence consists of possession, even the words 138 Neutral Citation No. ( 2025:HHC:33005 ) '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.

131. This position was reiterated in Ibrahim Musa Chauhan v. State of Maharashtra, 2013 SCC OnLine SC 254, wherein it was observed:

"15. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, this court dealt with the issue of recovery from a public place and held:

139

Neutral Citation No. ( 2025:HHC:33005 ) "21. The conduct of the accused has some relevance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh's house at 6.15 a.m. on hearing the news of that tragedy, and then Jeet Singh told him that Sudarshana complained of pain in the liver during the early morning hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure, he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room, but they slept in two different rooms.

Such conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminating circumstance spoken to by PW 10 that they were in the same room on the fateful night. We, too, give accord to the aforesaid approach made by the trial court."

16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, this Court held:

"22. In the present case, the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus, we see no substance in this submission also."

17. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone should not be taken into consideration for any reason. The reasoning behind it is that it will be the accused alone who will know the place where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth or in the garbage." 140

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132. Similarly, it was held in Perumal Raja v. State, 2024 SCC OnLine SC 12, that if the accused does not tell the Criminal Court that his knowledge of the concealment was based on the possibilities that absolve him, an inference can be drawn that the accused had concealed those articles. It was observed:

"32. In State of Maharashtra v. Suresh (2000) 1 SCC 471, this Court, in the facts therein, held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstance. This would, the Court held, reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it, and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the criminal court that his knowledge of the concealment was on the 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."

133. In the present case, the recovery was effected from inside the tank after it was emptied. Therefore, no person could 141 Neutral Citation No. ( 2025:HHC:33005 ) have known that the bones were lying inside the tank, and the recovery cannot be held to be inadmissible only because it was made in a public place.

134. It was submitted that the statements recorded by the police are almost identical, which raises doubts regarding their authenticity. This submission is not acceptable. Krishan Dutt Pradhan categorically deposed that the accused stated that they could show the place where they had thrown Yug in the water tank. He is an independent and respectable person, and his statement proves that the accused had disclosed their knowledge of the place where Yug was thrown. Hence, the similarity of the statements will not make them doubtful.

Circumstance No.12 and Circumstance No.13.

135. Dr Naseeb Singh Patial (PW89) stated that he, Dr Sanjeev Kumar, Assistant Director, Physics and Ballistics, visited House No.22, Ram Chandra Chowk, Jakhu, with the police on 18.7.2016. Col. Amit Pal Singh and his caretaker, Harish Dhawan, were present on the spot. The house was locked, and it was opened in the presence of the owner and the caretaker. It was a double-storeyed house. The house was above the road at a distance of 150 meters from the road. He clicked the photographs 142 Neutral Citation No. ( 2025:HHC:33005 ) of the outer portion of the house. The house was searched for physical evidence such as blood and hair etc. The ground floor consists of a one-room kitchen and a washroom. The floor and the household items tested negative with the Benzidine reagent, indicating the absence of blood. The first floor consisted of two rooms and a washroom. The floor and the household items tested negative with the benzidine agent, indicating the absence of blood. A ransom note written on the green notepad in Hindi with a blue pen, some green sheets having some information in English, some papers without any information and a white paper mentioning the account number of Col Amit Pal Singh were found. A white tracing paper with the words 'Apna Mobile Subah Chaar Baje' written on it, 13 blank note-taking sheets, a pre-paid Vodaphone envelope having some digits written on one side containing one Aadhar Card of Radhey Shyam Sahu, 13 passport- size photographs of Radhey Shyam Sahu and six photographs of one unknown person were also found. In addition to the above, a steel hearth containing cigarettes and 'beedi' was found. Similar statements were made by Amit Pal Singh (PW52) and the caretaker Harish Dhawan (PW48). Amit Pal Singh stated in his 143 Neutral Citation No. ( 2025:HHC:33005 ) cross-examination that the police remained in the house for about 2 hours.

136. Dhansukh Dutta (PW105) stated that he, along with the team of SFSL, ASI Rajesh, landlord Amit Pal Singh, Caretaker Harish, and Narender Kumar, inspected House No.22, Ram Chandra Chowk. The SFSL Team collected tracing paper (Ext.PW48/B1), thick white paper (Ext. PW48/B2), green papers (Ext. PW48/B3 and Ex PW48/B4), three copies of the Aadhar card of Radhey Shyam (Ext. PW48/B5 to Ext. PW48/B7), 13 green papers (Ext. Pw48/B8 to Ext. PW48/B20), one Voda phone envelope, (Ext. PW48/E) containing Aadhar Card of Radhay Shyam, 13 photographs of Radhay Shyam (Ext. PW48/D and Ext.PW48/C1 to Ext. PW48/C13) and six other photographs (Ext. PW48/C14 to Ext. PW48/C20) and eraser (Ext. P-127). He seized all the articles vide memo (Ext. PW48/A) and prepared the site plan (Ext. PW105/D). He stated in his cross-examination that the police remained in the house for 2-3 hours. The SFSL Team was searching for physical evidence. The articles were collected by the SFSL Team from the drawer of the dresser. Tests were conducted in every room.

144

Neutral Citation No. ( 2025:HHC:33005 )

137. The site plan (Ext. PW105/D) shows the details of the rooms and the location of fixtures and furniture in detail. It is running into 3 pages containing the details of the room and the articles lying inside it. The police team and the forensic officials remained on the spot for 2-3 hours, which means that it was an extensive search. The police had seized the articles recovered by the SFSL team on that day.

138. Amit Pal Singh (PW52) stated that when Chander Sharma had not paid the rent, he contacted him on the telephone, but Chander Sharma did not attend to the phone calls, so he broke the lock of the house and changed the inner lock. He found all the articles in order in the house, so he cleaned the house and locked it. It was submitted based on this statement that the house was cleaned somewhere in the year 2014, and the recovery of the articles from the house in 2016 is highly improbable. This submission cannot be accepted. This witness never stated that he had thrown the articles lying inside the house. He simply stated that the house was cleaned, and it was possible to discover the articles lying in the house after two years.

139. As per the prosecution's case, the house was again searched on 17.8.2016. The forensic Team under the leadership of 145 Neutral Citation No. ( 2025:HHC:33005 ) Arun Sharma, Dr Jagjit Singh and Naseeb Singh Patial went to the spot. They recovered a small-sized black pair of chappals, a bunch of greenish paper from the cupboard, a roll of brown cello tape and a woollen glove. These were seized by the police. The Chappal recovered from the house was identified by Vikrant Bakshi as the Chappal of Yug.

140. There is no explanation for the recovery of these articles. The house was searched extensively on 18.7.2016 by the police and the team of SFSL; however, the Chappal, glove, green papers and cello tape were not recovered. It is difficult to believe that the police and SFSL team would miss these articles. The police already knew on 18.7.2016 that Yug was missing, and the significance of the Chappal belonging to the child would not have been missed by them. They recovered some green sheets on 18.7.2016 and would not have missed other green sheets. The roll of brown cello tape was also important because the child was missing, and a conclusion could have been drawn that the cello tape had something to do with the missing child. It is highly unlikely that these articles lying in the house on 18.7.2016 would not have been recovered by the police; hence, the recoveries of these articles are highly doubtful and cannot be relied upon. 146

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141. Arun Sharma (PW76) stated that he visited the spot along with other persons. As per his observation, the size, shape and position of the spot (ply board) and print design (carpet) observed in the photograph retrieved from the deleted data of the cell phone were comparable with the actual spot of varied size, shape and position.

142. It was submitted that the report of analysis (Ext.PW77/E) is quite specific in mentioning that no data could be recovered from the mobile phone, and the Expert had nothing to compare it with the articles lying inside the house. It is correct that, as per the analysis report (Ext. PW77/E), no relevant data was recovered from the mobile phones and the data was recovered from the memory card. The spots and the carpet were visible in the photographs of the child (Ext. PW64/C-1 to Ext.PW64/C-7). Hence, the deleted data recovered from the mobile phone mentioned by Arun Sharma is a clerical error, which cannot be used to ignore the result of the findings recorded by the Forensic Expert.

143. It was submitted that Dr. Arun Sharma (PW76) was posted as the Director of the Forensic Science Laboratory. He held a responsible position, and once he mentioned that the 147 Neutral Citation No. ( 2025:HHC:33005 ) deleted data was retrieved from the mobile phone, it is impermissible to take it as a clerical error. It was further submitted that the benefit of every doubt has to be given to the defence and not to the prosecution. There can be no dispute with the proposition of law that the benefit of every reasonable doubt has to be given to the defence; however, it is difficult to agree with the submission that the person posted as a Director cannot commit a clerical error. Humans are prone to error, and that is why the adage 'to err is human'. When the photographs are available on the record, the video recordings are available on the CDs; they cannot be brushed aside simply because the Forensic Expert, who happened to be a Director, mentioned deleted data retrieved from the mobile phone instead of deleted data retrieved from the memory card of the mobile phone. Thus, the finding recorded by Dr Arun Sharma regarding the similarities of the pattern in the plyboard and the carpet cannot be ignored.

144. It was submitted that the report (Ext. PW77/E) bears the date 19.8.2016; therefore, the Forensic Expert could not have had any data with him on 17.8.2016. This submission assumes the fact that the report was prepared on the same day on which the analysis was conducted. The XRY-generated report (Ext. PW77/F) 148 Neutral Citation No. ( 2025:HHC:33005 ) mentions the date of creation of the data as 9.8.2016 11:58:01. The photographs and the video form a part of this report. Thus, the XRY-generated data shows that the data was generated on 9.8.2016, and the Forensic Experts could have possessed the data on 17.8.2016 on the date of their visit to House No. 22, Housing Board Colony, Ram Chandra Chowk; therefore, there is nothing inherently improbable in the possession of the photographs by the Forensic Experts.

145. The photographs and the room show that the child Yug was kept in House No.22. There is no other explanation for the presence of the pattern of the carpet and the ply shown in the photographs. Thus, the learned Trial Court had rightly concluded that the child, Yug, was present in house No.22 on 21.6.2014 at the time of taking the photographs.

146. The learned Trial Court further held that the writing recovered from the house was proved to be the handwriting of Chander Sharma and Vikrant Bakshi. However, it has been found above that the report of Visheshwar Sharma (PW84) to this effect is not acceptable in view of the earlier report submitted by him that it was not possible to make a comparison based on the handwriting submitted to him.

149

Neutral Citation No. ( 2025:HHC:33005 ) Circumstance No.14.

147. The accused made the disclosure statements on 24.8.2016, narrating how the incident occurred. Learned Trial Court had rightly held that since no recovery was effected pursuant to the disclosure statement, therefore, these disclosure statements are inadmissible. It was held in State of Maharashtra Versus Damu Gopinath Shinde, AIR 2000 S.C. 169, that where the statement of the accused did not lead to the discovery of any fact, the same is not admissible. It was observed: -

"The information permitted to be admitted in evidence is confined to that portion of the information which 'distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by P.W. 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.

38. How did particular information lead to the discovery of the fact? No doubt, the recovery of the dead body of Dipak from the same canal was antecedent to the information, which P.W. 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot." (Emphasis supplied) 150 Neutral Citation No. ( 2025:HHC:33005 )

148. Accused Vikrant Bakshi made a disclosure statement (Ext. PW102/A) in which it was mentioned that he could show the various places where the incident had taken place. A similar statement was made by accused Tajinder Pal Singh (Ext.

PW102/B) and Chander Sharma (Ext. PW102/C).

149. Accused Chander Sharma led the police to a place from where a concrete stab was picked up. The police sealed the concrete stab in a parcel and seized it vide memo (Ext. PW104/B).

This memo was witnessed by Raj Kumar Gupta, Ram Kumar Gupta and Pradeep Kumar Gupta. Pradeep Kumar Gupta (PW49) stated that he was called by the police on 25.8.2016 near the CTO at 8:30 am. Chander Sharma, Tejinder Pal Singh, Vikrant Bakshi, Ram Kumar, Raj Kumar and Ram Kishore Gupta were also present on the spot. The accused persons took them to a shop where Vikrant Bakshi identified the bookseller and said that he had purchased one tracing paper and one sketch pen. They also led the police to a narrow street leading to the Gunj Mandir and the godown. This godown was identified as belonging to Tejinder Pal Singh. Tejinder Pal Singh identified three knives kept in the kitchen, out of which one was kept on the neck of Yug and a photograph was clicked. Three knives were put in a plastic 151 Neutral Citation No. ( 2025:HHC:33005 ) container. The accused led the police party to the gate of Advanced Study. Accused Chander Sharma disclosed that he had lifted the stone from that spot. He identified the piece of concrete. The police seized the piece of concrete. He stated in his cross-examination that he is a resident of Haidergarh, Barabanki. Vinod Gupta is a resident of Subeh. He admitted that both the villages fall within the same Tehsil. Vinod Gupta was known to him. Ram Kumar Gupta, Raj Kumar Gupta, Sushil Kumar, etc., were known to him, as they used to meet at marriages. He admitted that inquiries were also made from him, and his signatures were obtained by the CID. He had not visited flat No.22 before he was taken to the said flat by the police. He denied that no recovery was effected by the police, and he was making a false statement.

150. It was suggested that he knew Vinod Gupta and his testimony is suspect. This submission is not acceptable. Mere acquaintance with the informant party is no reason to discard his testimony. It has not been shown that he has enmity with any of the accused or has any other reason to depose falsely against the accused; therefore, his testimony cannot be discarded due to mere acquaintance.

152

Neutral Citation No. ( 2025:HHC:33005 )

151. Bhupender Brakta (PW104) stated that the accused made the disclosure statements on 25.8.2016. The accused were taken for a mock drill in the presence of Raj Kumar Gupta, Ram Kumar Gupta, Ramesh and Pradeep. Vikrant Bakshi identified the shop from which he had purchased the tracing paper and the writing material. Chander Sharma identified the place from which he had lifted the concrete stone. The police collected a sample of concrete stone from the spot and sealed it. Tejinder Pal Singh got recovered three knives from the kitchen of flat No.22, Ram Chandra Chowk, which were seized by the police.

152. Sanjeev Gupta (PW23) stated that he was running a stationery shop in Lower Bazar. He used to sell pens, pencils, photostat papers, and tracing papers, which are used in writing (Ext. PW5/A and Ext.PW5/B) in his shop. He stated in his cross-

examination that the articles being sold in his shop are also available in the other shops.

153. This witness did not state that he had sold the tracing paper, etc., to the accused Vikrant Bakshi. No bill showing the purchase made by Vikrant Bakshi was produced; therefore, no discovery was made pursuant to the statement made by Vikrant Bakshi that the tracing papers were purchased by him from the 153 Neutral Citation No. ( 2025:HHC:33005 ) shop of Sanjeev Gupta. No sample was taken from his shop to compare the tracing papers with the tracing papers on which the ransom notes were written; thus, the statement made by Vikrant Bakshi regarding the purchase of stationery and the tracing paper is inadmissible because it did not lead to the discovery of any fact.

154. The statement made by Tejinder Pal Singh, leading to the discovery of the knives, is also of no help to the prosecution.

The knives were not sent for examination to the expert to determine whether these were the same knives which were shown in the photograph. The knives were also not shown to the Forensic Expert Dr Naseeb Singh Patial or Dr Arun Sharma to elicit their opinion on whether they matched the knife shown in the photograph; therefore, mere recovery of knives will not connect the accused Tejinder Pal Singh with the commission of the crime. The statement under Section 27 of the Indian Evidence Act can only be used to admit the fact discovered as a consequence of information received from the accused. Section 27 of the Indian Evidence Act reads:

"27. How much of information received from the accused may be proved.

Provided that, when any fact is deposed to as discovered 154 Neutral Citation No. ( 2025:HHC:33005 ) in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

155. It is apparent from the bare perusal of the Section that the whole of the statement made by the accused has not been made admissible, but only so much of the information that leads to the discovery of the fact is admissible. This provision fell for consideration before the Judicial Committee of the Privy Council in Pulukari Kotayya vs. King Emperor, AIR 1947 P.C. 67. This judgment is a locus classicus, and it settled much of the controversy about the interpretation of Section 27. Lord Beaumont J., who spoke on behalf of the Judicial Committee, said:

"Normally, the Section is brought into operation when a person in police custody produces from some place of concealment, some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is the accused".

156. The statement made in the said case by the accused was:

"...About 14 days ago, I, Kotayya and the people of my party lay in wait for Sivayya and others at about sunset time at the corner of the Pulipad tank. We all beat Beddupati China Sivayya and Subayya to death. The remaining persons, Pullayya, Kotayya and Narayana, ran away. Dondapati Ramayya, who was at our party, received blows on his 155 Neutral Citation No. ( 2025:HHC:33005 ) hands. He had a spear in his hands. He gave it to me then. I hid my stick in the rick of Venkatanarasu in the village. I will show you if you come. We did all this at the instigation of Pulukuri Kotayya."

157. It was contended before the Judicial Committee on behalf of the Crown that the information given by the person that the weapon produced is the one used by him in the commission of the murder would be admissible. This contention was rejected, and it was said:

"If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion and that in practice the ban will lose its effect"

158. The meaning of the term 'fact discovered' was explained as follows:

"In their Lordships' view, it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced, is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does 156 Neutral Citation No. ( 2025:HHC:33005 ) not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if the statement words be added "with which I stabbed A," these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (Emphasis supplied).

159. Ultimately, it was held that the whole of the statement made by the accused in that case, except the passage "'I hid it' (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. It was held:

"The whole of that statement, except the passage I hid it [a spear] and my stick in the rick of Venkatanarasu in the village. I will show if you come is inadmissible. In the evidence of the witness Potla China Mattayya proving the document, the statement that the accused 6 said I Mattayya and others went to the corner of the tank-land. We killed Sivayya, and Subayya must be omitted. A confession of accused 3 was deposed to by the police sub- inspector, who said that accused 3 said to him: "I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place." The first sentence must be omitted. This was followed by a Mediatornama, Exhibit Q.1, which is unobjectionable except for a sentence in the middle. He said that it was with that spear that he had stabbed Boddupati Sivayya, which must be omitted."

160. This position was reiterated in State of Karnataka v. David Rozario, (2002) 7 SCC 728: 2002 SCC (Cri) 1852: 2002 SCC OnLine SC 88, wherein it was observed at page 732:

5. The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused.

157

Neutral Citation No. ( 2025:HHC:33005 ) Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26, and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659: AIR 1972 SC 3] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828: 1976 SCC (Cri) 199: AIR 1976 SC 483]. The words "so much of such information" as relates distinctly to the fact thereby discovered are very important, and the whole force of the section concentrates on them. Clearly, the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion and that in practice the ban will lose its effect. The object of the provision, i.e. Section 27, was to provide for the admission of evidence which, but for the existence of the section, could not, in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands, in order to render the evidence leading to the discovery of any fact admissible, the information must come from any accused in the custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information, which is otherwise admissible, becomes 158 Neutral Citation No. ( 2025:HHC:33005 ) inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to the discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody, which led to the recovery of the articles, has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in the discovery of a fact, it becomes reliable information. It is now well settled that the recovery of an object is not a discovery of a fact envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67: 48 Cri LJ 533: 74 IA 65] is the most-quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu [(2000) 6 SCC 269: 2000 SCC (Cri) 1088: 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. A mere statement that the accused led the police and the 159 Neutral Citation No. ( 2025:HHC:33005 ) witnesses to the place where he had concealed the articles is not indicative of the information given.

161. A similar view was taken in Charandas Swami v. State of Gujarat, (2017) 7 SCC 177: (2017) 3 SCC (Cri) 343: 2017 SCC OnLine SC 361, wherein it was observed at page 204:

59. In our view, the decision in Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715] has adverted to all the previous decisions and restated the legal position. In para 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the Evidence Act, the Court formulated two questions which read thus : (SCC p. 696) "(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto, or the discovery could be in respect of his mental state or knowledge in relation to certain things, concrete or non-concrete.

(ii) Whether it is necessary that the discovery of a fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused, whether it can be put against him under Section 27."

In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paras 115 to 118. The Court then, after analysing Section 27 of the Evidence Act, in paras 120 to 144, adverted to the relevant decisions on the point. In paras 120 and 121, the Court noted thus : (Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], SCC pp. 700-02) "120. The history of case law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin 160 Neutral Citation No. ( 2025:HHC:33005 ) aspects : (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say, material objects, which can be exhibited in the Court, are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases, a view was taken that any information which served to connect the object with the offence charged was admissible under Section 27. The decision of the Privy Council in the Kotayya case [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65: AIR 1947 PC 67], which has been described as a locus classicus, had set at rest much of the controversy that centred around the interpretation of Section 27. To a great extent, the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council's decision has not been questioned in any of the decisions of the highest court, either in the pre- or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.

121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of the police officer as a consequence of the information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates [Ed. : The matter between two asterisks has been 161 Neutral Citation No. ( 2025:HHC:33005 ) emphasised in the original as well.] distinctly to the fact thereby discovered [Ed. : The matter between two asterisks has been emphasised in the original as well.] that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible, but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in the Kotayya case [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47: (1946-

47) 74 IA 65: AIR 1947 PC 67]: (SCC OnLine PC: AIR p. 70, para 10) '... clearly the extent of the information admissible must depend on the exact nature of the fact discovered' and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (SCC OnLine PC: AIR p. 70, para 10) '... Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.' (emphasis supplied) We have emphasised the word "normally" because the illustrations given by the learned Judge are not exhaustive. 162

Neutral Citation No. ( 2025:HHC:33005 ) The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words : (SCC OnLine PC: AIR p. 70, para 10) '... If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion and that in practice the ban will lose its effect.' Then, their Lordships proceeded to give a lucid exposition of the expression "fact discovered" in the following passage, which is quoted time and again by this Court: (SCC OnLine PC: AIR p. 70, para 10) '... In their Lordships' view, it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced, is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a 163 Neutral Citation No. ( 2025:HHC:33005 ) knife; knives were discovered many years ago. [Ed. :

The matter between two asterisks has been emphasised in the original as well.] It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge [Ed. : The matter between two asterisks has been emphasised in the original as well.], and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.'"(emphasis supplied)

60. This Court has restated the legal position that the facts need not be self-probatory and the word "fact" as contemplated by Section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In para 128, the Court noted the statement of law in Udai Bhan [Udai Bhan v. State of U.P., AIR 1962 SC 1116 : (1962) 2 Cri LJ 251: 1962 Supp (2) SCR 830] that : (Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], SCC p. 705) "128. ... '11. ... A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.' (Udai Bhan case [Udai Bhan v. State of U.P., AIR 1962 SC 1116 : (1962) 2 Cri LJ 251: 1962 Supp (2) SCR 830], AIR p. 1118, para 11)"

The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from paras 129 to 132 of the reported judgment.

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61. In para 139, the Court noticed the decision in Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088] which had dealt with the case where a broken glass piece was recovered from the spot matched with broken tail lamp and in para 37 of that decision, the Court observed thus : (Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], SCC p. 709) "139. ... '37. How did the particular information lead to the discovery of the fact? No doubt, the recovery of the dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.' (Damu case [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088], SCC p. 283)"

(emphasis in original)

62. The Court then noted that the above view taken in the Damu case [State of Maharashtra v. Damu, (2000) 6 SCC 269:

2000 SCC (Cri) 1088] does not make a dent on the observations made and the legal position spelt out in Om Prakash [H.P. Admn. v. Om Prakash, (1972) 1 SCC 249: 1972 SCC (Cri) 88] which distinguishes the Damu case [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088] because there was discovery of a related physical object at least in part. We may usefully reproduce paras 142 to 144 of the same reported decision, wherein the Court observed thus : (Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], SCC pp. 710-11) "142. There is one more point which we would like to discuss, i.e. whether pointing out a material object by 165 Neutral Citation No. ( 2025:HHC:33005 ) the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of cases, the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact, viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to the discovery of a fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into the evaluation of that particular piece of evidence.

143. How the clause "as relates distinctly to the fact thereby discovered" has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from the Kotayya case [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65:

AIR 1947 PC 67], various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in the Inayatullah case [Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828: 1976 SCC (Cri) 199]. Sarkaria, J., analysed the 166 Neutral Citation No. ( 2025:HHC:33005 ) ingredients of the section and explained the ambit and nuances of this particular clause in the following words : (Inayatullah case [Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828: 1976 SCC (Cri) 199], SCC p. 832, para 12) '12. ... The [Ed.: Emphasis in original.] last [Ed: Emphasis in original.] But the most important condition is that only "so much of the information" as relates [Ed.: Emphasis in original.] distinctly [Ed. : The matter between two asterisks has been emphasised in the original as well.] to the fact [Ed. : Emphasis in original.] thereby [Ed.: Emphasis in original.] discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", or "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the [Ed. : The matter between two asterisks has been emphasised in the original as well.] direct [Ed. : The matter between two asterisks has been emphasised in the original as well.] and [Ed. : The matter between two asterisks has been emphasised in the original as well.] immediate [Ed. : The matter between two asterisks has been emphasised in the original as well.] cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of the truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement, which may be indirectly or remotely related to the fact discovered.' 167 Neutral Citation No. ( 2025:HHC:33005 ) In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted.

144. In Bodhraj v. State of J&K [Bodhraj v. State of J&K, (2002) 8 SCC 45: 2003 SCC (Cri) 201], this Court, after referring to the decisions on the subject, observed thus : (SCC p. 58, para 18) '18. ... The words "so much of such information" as relates distinctly to the fact thereby discovered are very important, and the whole force of the section concentrates on them. Clearly, the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.'"(emphasis supplied)

63. Reliance was also placed on the recent decision of this Court in Dupare [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624]. The Court adverted to the relevant precedents and observed thus, in paras 23 to 29 : (SCC pp. 267-70) "23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65: AIR 1947 PC 67] has held thus : (SCC OnLine PC: IA p. 77) '... it is fallacious to treat the "fact discovered"

within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were 168 Neutral Citation No. ( 2025:HHC:33005 ) discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.'

24. In Mohd. Inayatullah v. State of Maharashtra [Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828:

1976 SCC (Cri) 199], while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that : (SCC pp. 831-32, paras 11-13) '11. Although the interpretation and scope of Section 27 have been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset to have a short and swift glance at the section and be reminded of its requirements. The section says:

"27. How much of information received from the accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

12. The expression "provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions, particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information 169 Neutral Citation No. ( 2025:HHC:33005 ) received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. The third is that at the time of the receipt of the information, the accused must be in police custody. The last but most important condition is that only "so much of the information"

as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", or "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of the truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement, which may be indirectly or remotely related to the fact discovered.

13. [Ed. : Emphasis has been supplied to the matter between two asterisks.] At one time, it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses and that it does not include a mental fact (see Sukhan v. Emperor [Sukhan v. Emperor, AIR 1929 Lah 344] and Ganu Chandra Kashid v. Emperor [Ganu Chandra Kashid v. Emperor, 1931 SCC OnLine Bom 50: AIR 1932 Bom 286] ). Now it is fairly settled that the expression "fact discovered"

includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this [Ed. : Emphasis has been supplied to the matter between two asterisks.] (see 170 Neutral Citation No. ( 2025:HHC:33005 ) Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 :

(1946-47) 74 IA 65: AIR 1947 PC 67] and Udai Bhan v. State of U.P. [Udai Bhan v. State of U.P., AIR 1962 SC 1116 : (1962) 2 Cri LJ 251: 1962 Supp (2) SCR 830] ).' (emphasis in original)

25. In Aftab Ahmad Anasari v. State of Uttaranchal [Aftab Ahmad Anasari v. State of Uttaranchal, (2010) 2 SCC 583 :

(2010) 2 SCC (Cri) 1054] after referring to the decision in Pulukuri Kotayya [Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65: AIR 1947 PC 67], the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that : (Aftab Ahmad Ansari case [Aftab Ahmad Ansari v. State of Uttaranchal, (2010) 2 SCC 583 : (2010) 2 SCC (Cri) 1054], SCC p. 596, para 40) '40. ... the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased, is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits.'

26. In State of Maharashtra v. Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088] it has been held as follows : (SCC p. 283, para 35) '35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor [Pulukuri Kotayya v. King Emperor, 1946 SCC 171 Neutral Citation No. ( 2025:HHC:33005 ) OnLine PC 47 : (1946-47) 74 IA 65: AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.' The similar principle has been laid down in State of Maharashtra v. Suresh [State of Maharashtra v. Suresh, (2000) 1 SCC 471: 2000 SCC (Cri) 263], State of Punjab v. Gurnam Kaur [State of Punjab v. Gurnam Kaur, (2009) 11 SCC 225 : (2009) 3 SCC (Cri) 1311], Aftab Ahmad Anasari v. State of Uttaranchal [Aftab Ahmad Anasari v. State of Uttaranchal, (2010) 2 SCC 583 : (2010) 2 SCC (Cri) 1054], Bhagwan Dass v. State (NCT of Delhi) [Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 : (2011) 2 SCC (Cri) 985], Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and Rumi Bora Dutta v. State of Assam [Rumi Bora Dutta v. State of Assam, (2013) 7 SCC 417 : (2013) 3 SCC (Cri) 544].

27. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in the custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.

162. In the present case, the whole of the statement is regarding the past transaction. It does not lead to the discovery of the fact that the stationery used to write the ransom notes was purchased from the shop of Sanjeev Gupta. It was laid down by the Judicial Committee of the Privy Council in Narayan Swami Versus Emperor, AIR 1939 PC 47, that the article recovered has to 172 Neutral Citation No. ( 2025:HHC:33005 ) be linked with the commission of the crime independently, and the prosecution cannot rely upon the statement under Section 27 to prove its connection with the commission of a crime. Hon'ble Supreme Court held in Babbu Versus State of M.P., AIR 1979 S.C. 1042, that the prosecution has to prove independently that the object recovered was connected with the commission of an offence. It was observed:

"13. The learned Additional Sessions Judge has also referred to the recovery of Katarnas on the information given by accused Nos. 1, 3 and 5. These recoveries hardly have any probative value in the facts and circumstances of this case. If there is no substantive evidence worth the name, the recovery of Katarnas would hardly advance the prosecution's case against the accused. Katarnas appear to have been stained with human blood. However, it is revealing to refer to the recovery memos. Katarna is recovered from the accused No. 1 under the seizure memorandum Ex. P-8 in which it is recited that accused No. 1 made the statement that he would show the Katarna with which he assaulted Diwan Singh on 21-9-73 at night. The first part in the seizure memo would be inadmissible because the fact that accused No. 1 assaulted Diwan Singh was not discovered in pursuance of the information given by accused No. 1. It would be a confessional statement to a police officer, hit by section 25 of the Evidence Act. The same infirmities were to be found in regard to the recovery memos in respect of accused Nos. 3 and 5. In this background, we are not disposed to attach any importance to the recovery of blood-stained Katarnas on the information given by accused Nos. 1, 3 and 5."

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163. This position was reiterated in Musheer Khan v. State of M.P., (2010) 2 SCC 748: (2010) 2 SCC (Cri) 1100: 2010 SCC OnLine SC 229 at page 762, wherein it was observed:

"57. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example:

Suppose a person accused of murder deposes to the police officer the fact result of which the weapon with which the crime is committed is discovered, but as a result of such discovery, no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused."

164. Therefore, the prosecution cannot take any advantage of the statements made by Tejinder Pal Singh or Vikrant Bakshi, and the learned Trial Court had rightly discarded the evidence regarding the recovery of three knives at the instance of Tejinder Pal Singh and the disclosure statement made by Vikrant Bakshi.

165. The stone got recovered by Chander Sharma was sent for analysis. Naseeb Singh Patial (PW89) compared it with the stone recovered from the tank. He stated that the composition of cement, sand and gravel in the stone recovered at the instance of Chander Sharma and the concrete slab recovered from the tank was similar. Therefore, his testimony connects the stone 174 Neutral Citation No. ( 2025:HHC:33005 ) recovered at the instance of the accused Chander Sharma to the stone recovered from the water tank.

Circumstance No. 15

166. It has been found out above that the accused made the disclosure statement and led the police to the tank from where the bones were recovered. The DNA of the bones matched the DNA of Pinki Gupta and Vinod Gupta; therefore, it was duly proved that the bones were of Yug. There is no evidence that police had prior knowledge about the existence of bones in and around the water tank, and this fact came to their knowledge after the disclosure statements were made by the accused; therefore, this circumstance was duly established and was rightly held to be so by the learned Trial Court.

Circumstance No.16.

167. Learned Trial Court placed reliance upon the report of the Handwriting Expert, who compared the admitted specimen and disputed handwriting, however, it has been found out above that the statement of Dr. Visheshwar Sharma (PW84) is highly doubtful because of the inconsistent reports; therefore, this circumstance was not proved and the learned Trial Court erred in holding that this circumstance was established. 175

Neutral Citation No. ( 2025:HHC:33005 ) Circumstance No.17.

168. Learned Trial Court held that Chander Sharma had written four ransom letters based on the report of the handwriting analyses; however, the report of the handwriting expert is not satisfactory, as noticed above; therefore, this circumstance was also not proved.

Circumstance No.18

169. Learned Trial Court held that Yug was alive till 21.6.2014. Ransom letters were sent demanding the money; therefore, it was proved that the kidnapping was for ransom. This conclusion is not correct. The report of the handwriting expert is doubtful, and the ransom letter cannot be traced to the accused; therefore, it cannot be said that the ransom letters were written by the accused. Thus, the conclusion that the motive was to kidnap Yug to demand ransom is not sustainable.

170. As per the prosecution's case, Yug was murdered on the intervening night of 21/22.6.2014 by drowning him in the tank. The first ransom letter was received on 27.6.2014. Yug was found missing on 14.6.2014, and there is no explanation for the silence between 14.6.2014 and 27.6.2014. No ransom letter and no threatening calls were received when Yug was alive. Therefore, it 176 Neutral Citation No. ( 2025:HHC:33005 ) is difficult to infer that the motive of the accused to kidnap Yug was to demand ransom; hence, this circumstance was also not proved.

Circumstance No.19

171. The prosecution relied upon the diatom test to conclude that Yug was alive when he was thrown into the water tank. In Principles and Practice of Medical Jurisprudence, by Taylor, 13th edition, it was observed that the presence of diatoms in the body is not sufficient because they can be found in the body from other sources as well. It was observed at page No. 299:

"As regards the 2nd criticism that diatoms have been found in the organs of persons who have died from causes other than drowning, Hendey points out that:

(i) A large number of diatoms are ingested with unprepared foods eaten raw, such as salads, watercress, which come into contact with the soil diatoms, and particularly shellfish such as mussels, limpets, winkles, cockles, and oysters, which feed exclusively on Diatoms.

(ii) There is extensive use of diatomaceous earth for industrial purposes. It is used extensively in building, chemical processes and insulating material. It is reasonable, therefore, that people living in the immediate vicinity of such industry will be exposed to diatoms in the atmosphere.

(iii). There is contamination by diatom containing dusting powder, formerly extensively used by pathologists on rubber gloves Hendey considers however, that their presence from the sources 177 Neutral Citation No. ( 2025:HHC:33005 ) outlined above amply confirms that the diatom test is only valid if it can be shown that the species recovered from the pathological specimens are all present in the sample from the site of drowning. All species of diatoms in the pathological specimen, other than those represented in the site, must be ignored.

172. A similar view was expressed in Knight's Forensic Pathology, 4th Edn. at pages 410 to 412:

Few topics in forensic pathology have given rise to so much argument as the use of diatoms in the diagnosis of drowning. Revenstorf in 1904 was the first to attempt to use diatoms as a test for drowning, though he stated that Hofmann in 1896 was the first to discover them in lung fluid. An excellent review of the diatom controversy was published by Peabody in 1980.

The basic premise is that when a live person is drowned in water containing diatoms (microscopic algae with a silicaceous exoskeleton), many diatoms will penetrate the alveolar walls and be carried to distant target organs such as the brain, kidney, liver, and bone marrow. After autopsy, samples of these organs can be digested with strong acid to dissolve the soft tissue, thus leaving the highly resistant diatom skeletons to be identified under the microscope. Alternatively, blood can be used to seek the organisms.

When a dead body is deposited in water or when death in the water is not due to drowning, then, although diatoms may reach the lungs by passive percolation, the absence of a beating heart prevents the circulation of diatoms to distant organs.

The great advantage of the diatom test, if it were reliable, would be that a positive diagnosis of drowning could be made even in the frequently putrefied bodies that are recovered, where no hope of anatomical recognition of drowning is possible. In addition, evidence of the site of the drowning might be obtained from the ecological 178 Neutral Citation No. ( 2025:HHC:33005 ) typing of the diatoms, especially in relation to saltwater or freshwater locations.

Meticulous attention to technique must be employed at autopsy to recover suitable samples of tissue, which must not be contaminated by the body surface or instruments before digestion is commenced. (Technical details are given in Appendix 1.) Diatoms belong to the class of plants known as Diatomaceae and consist of a box or 'frustule' composed of two valves that fit together to enclose the cytoplasmic contents. They have either radial symmetry ('centric' diatoms) or are elongated ('pennate' diatoms). The valves are highly complex in shape and are extremely resistant to decay, fossil diatoms from Jurassic times being abundant. The floor of the oceans has an area of 11 million square miles of thick diatomaceous ooze, and upraised beds on land may be hundreds of feet thick, which emphasizes the vast amount of potential contaminants available. There are at least 10,000 species, and the identification of the various types is a matter for an experienced botanist or biologist, but the following general classification is useful:

'oligohalophilic' diatoms live in freshwater with a salinity less than 0.05 per cent, and 'mesohalophilic' and 'polyhalophilic' diatoms live in brackish water and seawater with a salinity higher than 0.05 per cent. The critics of the diatom test point to certain problems:

■ Diatoms are ubiquitous, being present in soil, water supplies and in the air. Many commonly used minerals, such as kieselguhr, are largely fossil diatoms. Manufactured substances like board chalk and abrasives - even toothpaste - contain diatomaceous raw materials. Mant, however, examined the filters of the air-conditioning system of Guy's Hospital in London and found no diatoms taken from the city atmosphere.

■ Though entry into the body is thought to be mainly through the lungs, there seems to be no reason why they cannot penetrate the intestinal lining, and gain 179 Neutral Citation No. ( 2025:HHC:33005 ) access to the bloodstream and hence any body tissues.

■ Certain foods, notably shellfish, contain vast quantities of diatoms that may enter the circulation and reach the tissues.

■ Examination of the tissues of both animals and man reveals the presence of diatoms when the cause of death is other than drowning. Schellmann and Sperl (1979) found them in the tissues of 15 out of 16 non-drowned bodies, but other workers found no diatoms in 33 out of 34 bodies, including two drownings.

Foged (1983) made a detailed investigation into drowned and non-drowned bodies in Denmark and concluded that the diatom test was quite invalid. He quoted many references both for and against the reliability of the technique, and no doubt the controversy will continue. It seems probable that there may be a quantitative difference between the numbers of diatoms recovered from the tissues in drowning and non-drowning deaths, and a careful analysis of the species identification in relation to the locus and circumstances of the death may be useful. At the present time, the diatom test should be used only as an indicative aid and not as legal proof of drowning. Recently, other water organisms have been advocated as tests for drowning, including soft-bodied protozoa and crustaceans.

Japanese workers have used other methods to digest autopsy tissues to seek diatoms because it has been shown that strong acid digestion markedly reduces the yield. The new methods introduced for diatoms, such as enzymatic and detergent digestion, allowed soft-bodied microscopic organisms to be recovered, and claims for better specificity for drowning have been made (Matsumoto and Fukui 1993; Funayama et al. 1987, 2001). Chinese workers have claimed that the spectrofluorophotometric detection in the lungs of chlorophyll derived from plankton is diagnostic, but it is not clear how this can be differentiated 180 Neutral Citation No. ( 2025:HHC:33005 ) from plankton passively entering the lungs after death (Qu and Wang 1992).

173. It has been stated in Chapter 20.6.9.1 of A Textbook of Medical Jurisprudence and Toxicology by Modi that the diatom tests can be useful in determining drowning, but it has certain limitations. It was observed as under: --

****

(f) Diatom Test: Finding of diatoms by microscopic examination of tissues like the brain, liver or bone marrow from the femur or humerus, after acid digestion, is also helpful in confirming death from drowning. Diatoms are a class of tiny unicellular algae of different shapes found in fresh or seawater. There are about 15,000 types of diatoms, of which half are found in freshwater and the rest in seawater. They may be fan-shaped (stellate), ribbon- like like and seen singly or in groups. They vary in size from 2m-1.0 millimetres, the usual size being 10.80 mm. They have a hard, siliceous, almost indestructible outer covering (frustule) and can pass through the alveolar walls of the lungs of a living person to the brain, liver and bone marrow. The diatom flora of the samples of water from the site of immersion must be carefully collected with a special technique and compared with those found in the body to get a reliable report.

The diatom test has certain limitations, like diatoms could have been inhaled or ingested with material containing diatoms before death, or aspirated water containing diatoms, or contamination of the glassware and reagents that are used to detect diatoms."

174. The Hon'ble Supreme Court also held in Shantibhai J. Vaghela v. State of Gujarat, (2012) 13 SCC 231: (2012) 4 SCC (Cri) 181 Neutral Citation No. ( 2025:HHC:33005 ) 272: 2012 SCC OnLine SC 929 that the diatoms test is quite controversial. It was observed at page 240:

21. Two other aspects of the matter also need to be dealt with at this stage. In the opinion rendered by the Department of Forensic Medicine, B.J. Medical College, Ahmedabad, with regard to the cause of death of the two children, as extracted above, it is recorded that the "presence of diatoms could not be detected". Relevant literature has been laid before the Court to show that:

"diatoms are among the well-known water planktons ... Every water body has its own diatom diversity ... Diatoms are commonly found in water bodies like ponds, lakes, canals and rivers, etc. but their concentration can be low or high in a particular water body, depending upon the season...."

22. The following extract from the works/literature placed before the Court would also require a mention to understand the significance of the absence of diatoms as mentioned in the report of the Department of Forensic Medicine, B.J. Medical College, Ahmedabad:

"When drowning takes place, diatoms enter into the lung cavity of a person through the aspirated water, and this water exerts pressure on the lung cavity, and rupturing of the lung alveoli takes place. Through these entrances, diatoms can enter into heart, liver, kidney, brain and bone marrow. Analysis of diatoms present in the lungs, liver, spleen, blood and bone marrow has for many years been undertaken as a confirmatory test in possible drowning cases. However, the diatom test has been controversial since numerous cases of false negative and false positive results have been documented..."

175. Dr. Arun Sharma (PW76) stated that he examined one plastic bottle containing about 700 millilitres of transparent liquid, stated to be a sample of water taken from a water tank 182 Neutral Citation No. ( 2025:HHC:33005 ) from where the skeleton remains were recovered. He also examined the bones, which were in a plastic container. He issued the report (Ext PW51/E).

176. The report (Ext.PW51/E) reads that the bone marrow extracted from the femur bone and the sample of water taken from the water tank were subjected to chemical analyses (acid digestion), double-distilled water washing, and centrifugation. An examination was carried out for the detection of diatoms. Diatoms were detected in the femur bone, which was comparable to the diatoms detected in the sample of water taken from the water tank.

177. Diatoms have many species, and they can be compared if a similar ratio of species or similar species is found in the water and the body; therefore, it was essential to mention the species of diatoms found in the water and the bones. It was not sufficient for Dr Arun Sharma to write that these were comparable. He stated in his cross-examination that the word comparable is not a scientific term, and it means that two samples are fit for comparison. He was asked whether he could say that comparable does not show whether the samples were similar or different. He replied that it was incorrect. He admitted 183 Neutral Citation No. ( 2025:HHC:33005 ) that the type of diatom mentioned in the report could be available in other water bodies if the source of the water supply is the same. He admitted that different water bodies will have different species. There is a possibility of a similar type of diatom and bodies. It is apparent from his statement that the report is not sufficient to conclude that Yug drowned in the water tank.

Circumstance No.20

178. Learned Trial Court held that how the crime was committed proved the existence of a conspiracy. The Chappal was concealed in Flat No.22, and photographs and the video recording were deleted by the accused. It has already been found out above that the recovery of Chappal is highly doubtful because no such Chappal was recovered in the initial search. Further, Amit Pal Sigh admitted that other persons used to rent house No.22; therefore, the possibility of the chappal belonging to some other person cannot be ruled out. However, the learned Trial Court had rightly held that the clothes of Yug were missing and the photographs and the video recording were deleted, which amounted to the destruction of the evidence by the accused. It was laid down by the Hon'ble Supreme Court in Dinesh Kumar Kalidas Patel v. State of Gujarat, (2018) 3 SCC 313: (2018) 2 SCC (Cri) 184 Neutral Citation No. ( 2025:HHC:33005 ) 55: 2018 SCC OnLine SC 110 that the accused destroying the evidence to screen himself from the punishment can be held liable for the commission of an offence punishable under Section 201 of IPC. It was observed at page 315:

"5. Several contentions have been raised on merits. That apart, the appellant has also raised a question of law as to whether the conviction under Section 201 IPC could have been maintained while acquitting him of the main offence under Section 498-A IPC. The learned counsel have placed reliance on the decisions of this Court in Palvinder Kaur v. State of Punjab [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], Kalawati and Ranjit Singh v. State of H.P. [Kalawati and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri LJ 668], and Suleman Rehiman Mulani v. State of Maharashtra[Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829: 1968 Cri LJ 1013].

6. In Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], this Court held as follows: (AIR p. 356, para 14) "14. In order to establish the charge under Section 201 of the Penal Code, 1860, it is essential to prove that an offence has been committed--mere suspicion that it has been committed is not sufficient--that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false."

The conviction in this case was ultimately set aside on the aforementioned legal position and the facts.

7. The Constitution Bench decision in Kalawati [Kalawati and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 185 Neutral Citation No. ( 2025:HHC:33005 ) 131: 1953 Cri LJ 668] may not be of much assistance in this case since the facts are completely different. The co- accused was convicted under Section 302 IPC for the main offence, and in the peculiar facts and circumstances of that case, this Court deemed it fit to convict Kalawati only under Section 201 IPC.

8. Relying on Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], this Court in Suleman Rehiman [Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829: 1968 Cri LJ 1013], made the following observation: (Suleman Rehiman case [Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829: 1968 Cri LJ 1013], AIR p. 830, para 6) "6. The conviction of Appellant 2 under Section 201 IPC depends on the sustainability of the conviction of Appellant 1 under Section 304-A IPC. If Appellant 1 was rightly convicted under that provision, the conviction of Appellant 2 under Section 201 IPC on the facts found cannot be challenged. But on the other hand, if the conviction of Appellant 1 under Section 304-A IPC cannot be sustained, then the second appellant's conviction under Section 201 IPC will have to be set aside because to establish the charge under Section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed--and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear. The proof of the commission of an offence is an essential requisite for bringing home the offence under Section 201 IPC -- see the decision of this Court in Palvinder Kaur v. State of Punjab [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154] ."

It is necessary to note that the reason for acquittal under Section 201 in the above case was that there was no evidence to show that the rash and negligent act of Appellant 1 caused the death of the deceased. Hence, the 186 Neutral Citation No. ( 2025:HHC:33005 ) court acquitted Appellant 2 under Section 201. The observation in para 6 has to be viewed and analysed in that background.

9. In Ram Saran Mahto v. State of Bihar [Ram Saran Mahto v. State of Bihar, (1999) 9 SCC 486: 2000 SCC (Cri) 254], this Court discussed Kalawati [Kalawati and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri LJ 668] and Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154]. It has been held at paras 13 to 15 that a conviction under the main offence is not necessary to convict the offender under Section 201 IPC. To quote: (Ram Saran Mahto case [Ram Saran Mahto v. State of Bihar, (1999) 9 SCC 486:

2000 SCC (Cri) 254], SCC pp. 490-91) "13. It is not necessary that the offender himself should have been found guilty of the main offence for the purpose of convicting him of an offence under Section 201. Nor is it absolutely necessary that somebody else should have been found guilty of the main offence. Nonetheless, it is imperative that the prosecution should have established two premises. The first is that an offence has been committed, and the second is that the accused knew about it or had reasons to believe the commission of that offence. Then and then alone can the prosecution succeed, provided the remaining postulates of the offence are also established.

14. The above position has been well stated by a three-

judge Bench of this Court way back in 1952, in Palvinder Kaur v. State of Punjab [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154] : (AIR p. 356, para 14) '14. In order to establish the charge under Section 201 of the Penal Code, it is essential to prove that an offence has been committed--mere suspicion that it has been committed is not sufficient--that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the 187 Neutral Citation No. ( 2025:HHC:33005 ) evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false.'

15. It is well to remind that the Bench gave a note of caution that the court should safeguard itself against the danger of basing its conclusion on suspicions, however strong they may be.

In Kalawati and Ranjit Singh v. State of H.P. [Kalawati and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri LJ 668] a Constitution Bench of this Court has, no doubt, convicted an accused under Section 201 IPC even though he was acquitted of the offence under Section 302. But the said course was adopted by this Court after entering the finding that another accused had committed the murder, and the appellant destroyed the evidence of it with full knowledge thereof. In a later decision in Nathu v. State of U.P. [Nathu v. State of U.P., (1979) 3 SCC 574: 1979 SCC (Cri) 733], this Court has repeated the caution in the following words:

(SCC p. 575, para 1) '1. Before a conviction under Section 201 can be recorded, it must be shown to the satisfaction of the court that the accused knew or had reason to believe that an offence had been committed and, having got this knowledge, tried to screen the offender by disposing of the dead body.' (emphasis supplied)

10. In V.L. Tresa v. State of Kerala [V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573], this Court has discussed the essential ingredients of the offence under Section 201 IPC at para 12: (SCC p. 555) "12. Having regard to the language used, the following ingredients emerge:

(I) committal of an offence;

188

Neutral Citation No. ( 2025:HHC:33005 ) (II) a person charged with the offence under Section 201 must have the knowledge or reason to believe that the main offence has been committed;

(II) a person charged with the offence under Section 201 IPC should have caused the disappearance of evidence or should have given false information regarding the main offence, and (IV) the act should have been done with the intention of screening the offender from legal punishment."

11. In Sukhram v. State of Maharashtra [Sukhram v. State of Maharashtra, (2007) 7 SCC 502 : (2007) 3 SCC (Cri) 426], this Court discussed Kalawati [Kalawati and Ranjit Singh v. State of H.P., (1953) 1 SCC 86: AIR 1953 SC 131: 1953 Cri LJ 668], Palvinder Kaur [Palvinder Kaur v. State of Punjab, (1952) 2 SCC 177: AIR 1952 SC 354: 1953 Cri LJ 154], Suleman Rehiman [Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829: 1968 Cri LJ 1013] and V.L. Tresa [V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] among others. The essential ingredients for conviction under Section 201 IPC have been discussed at para 18: (Sukhram case [Sukhram v. State of Maharashtra, (2007) 7 SCC 502 : (2007) 3 SCC (Cri) 426], SCC pp. 510-11) "18. The first paragraph of the section contains the postulates for constituting the offence, while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender 189 Neutral Citation No. ( 2025:HHC:33005 ) committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that, in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown."

12. In Vijaya v. State of Maharashtra [Vijaya v. State of Maharashtra, (2003) 8 SCC 296: 2003 SCC (Cri) 1998], though this Court held that the decision in V.L. Tresa[V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] was of no assistance to the State in the particular facts, it reiterated that: (Vijaya case [Vijaya v. State of Maharashtra, (2003) 8 SCC 296: 2003 SCC (Cri) 1998], SCC p. 299, para

10) "10. ... There is no quarrel with the legal principle that notwithstanding acquittal with reference to the offence under Section 302 IPC, conviction under Section 201 is permissible in a given case."

13. The decisions in Vijaya [Vijaya v. State of Maharashtra, (2003) 8 SCC 296: 2003 SCC (Cri) 1998] and V.L. Tresa [V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] were noticed in State of Karnataka v. Madesha [State of Karnataka v. Madesha, (2007) 7 SCC 35 : (2007) 3 SCC (Cri) 292]. While the appeal of the State was dismissed, this Court, in unmistakeable terms, held that: (Madesha case [State of Karnataka v. Madesha, (2007) 7 SCC 35 : (2007) 3 SCC (Cri) 292], SCC p. 39, para 9) "9. It is to be noted that there can be no dispute that Section 201 would have application even if the main offence is not established in view of what has been stated in V.L. Tresa [V.L. Tresa v. State of Kerala, (2001) 3 SCC 549: 2001 SCC (Cri) 573] and Vijaya [Vijaya v. State of Maharashtra, (2003) 8 SCC 296: 2003 SCC (Cri) 1998] cases. ..."

190

Neutral Citation No. ( 2025:HHC:33005 )

14. Thus, the law is well settled that a charge under Section 201 IPC can be independently laid and conviction maintained also, in case the prosecution is able to establish that an offence had been committed, the person charged with the offence had the knowledge or the reason to believe that the offence had been committed, the said person has caused disappearance of evidence and such act of disappearance has been done with the intention of screening the offender from legal punishment. Mere suspicion is not sufficient; it must be proved that the accused knew or had a reason to believe that the offence had been committed, and yet he caused the evidence to disappear so as to screen the offender. The offender may be either himself or any other person."

179. Thus, it was duly proved that the accused Chander Sharma had taken house no. 22 on rent and Vikrant Bakshi had paid the rent of rupees 25,000/-. Yug was seen alive in the house no. 22, his photographs and video recording were found in the mobile phone of Vikrant Bakshi, his bones were recovered at the instance of accused Chander Sharma, Vikrant Bakshi and Tejinder Pal Singh, and the stone recovered from the water tank was similar to the stone shown by the accused Chander Sharma. These circumstances unerringly pointed towards the inference that the accused Chander Sharma and Vikrant Bakshi had murdered Yug and destroyed the evidence.

180. The evidence against Tejinder Pal Singh is the disclosure statement made by him, leading to the recovery of the bones. It was laid down by the Hon'ble Supreme Court in Manoj 191 Neutral Citation No. ( 2025:HHC:33005 ) Kumar Soni v. State of M.P., 2023 SCC OnLine SC 984, that the conviction cannot be based on the disclosure statement alone. It was observed:

"22. A doubt looms: can disclosure statements, per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence, sufficient on their own and without anything more to bring home the charges beyond a reasonable doubt." (Emphasis supplied)

181. Therefore, the conviction of accused Tejinder Pal Singh cannot be recorded only on the basis of statement made under Section 27 of the Indian Evidence Act by him.

182. The prosecution has also relied upon the disclosure statement to establish the fact that he had confined the child in his go down and helped in the transportation of the child in a cardboard box. However, this part of the disclosure statement did not lead to any recovery and cannot be used to record his conviction.

183. There is no other evidence against accused Tejinder Pal Singh. The reliance upon the call detail record is not sufficient in the absence of the evidence as to what was said by the caller and the receiver, hence the mere fact that accused 192 Neutral Citation No. ( 2025:HHC:33005 ) Tejinder Pal Singh was talking to the co-accused cannot lead to an inference that he was also involved in the commission of the crime.

184. He had assisted in the search of minor Yug but so had many other persons, therefore, this circumstance by itself or even in combination with the disclosure statement leading to the recovery of the bones of minor Yug does not connect the accused Tejinder Pal Singh to the commission of crime.

185. The evidence of the Handwriting Expert is not satisfactory in view of the contradictory reports submitted by him and it was not proved on record that accused Tejinder Pal Singh had written ransom letter.

186. Hence the circumstances proved against accused Tejinder Pal Singh do not unerringly point towards the guilt of the accused Tejinder Pal Singh, therefore, we are constrained to extend a benefit of doubt to him.

187. The video recording and the photographs of Yug found in the mobile phone of Vikrant Bakshi show that Yug was last seen alive when his photographs were taken and video recordings were made in the house occupied by Chander and Vikrant Bakshi. His bones were found in the water tank at Keleston near the water tank; therefore, the burden would shift 193 Neutral Citation No. ( 2025:HHC:33005 ) upon the accused Vikrant Bakshi and Chander Sharma to establish what happened to Yug after he was recorded and photographed alive. The last seen theory was explained by the Hon'ble Supreme Court in Nizam v. State of Rajasthan, (2016) 1 SCC 550: (2016) 1 SCC (Cri) 386: 2015 SCC OnLine SC 782 as under:

"14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on the "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 194 Neutral Citation No. ( 2025:HHC:33005 ) probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in the discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re. [1959 SCC OnLine Mad 173: AIR 1960 Mad 218]"

The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B. [(2015) 11 SCC 178: (2015) 5 Scale 319]

188. 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 when the accused and the deceased were last seen together and when the victim is found dead 195 Neutral Citation No. ( 2025:HHC:33005 ) is so small that the possibility of any other person other than the accused being the perpetrator of the crime becomes impossible. Elaborating on the principle of "last seen alive", a three-judge Bench of this Court in Satpal v. State of Haryana [Satpal v. State of Haryana, (2018) 6 SCC 610, para 6] has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held: (SCC pp. 612-13, para

6) "6. ... Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances, such as the time when the deceased was last seen with the accused and the recovery of the corpse being in very close proximity in 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 196 Neutral Citation No. ( 2025:HHC:33005 ) followed from the point of the deceased being so last seen in the presence of the accused."

189. A similar view was taken in Krishan Kumar v. State of Haryana, 2023 SCC OnLine SC 1180 (supra), wherein it was observed:

8......'Last seen, as a link in the chain of circumstantial evidence, would suggest the existence of oral testimony of at least one witness to establish that the deceased was last seen in the company of the accused. In this context, it is relevant to refer to the following decisions: --

9. In the decision in State of UP v. Satish (2005) 3 SCC 114, this Court held thus:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive, and then the deceased is found dead, is so small that the possibility of any person other than the accused being a part of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long time gap, and the possibility of another person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. (Emphasis added)

10. This position was reiterated by this Court in Hatti Singh v. State of Haryana (2007) 12 SCC 471. A survey of the authorities on this issue would reveal that this position is being followed with alacrity. Bearing in mind the said position regarding the applicability of the 'last seen' theory, we will have to examine the evidence of the last seen available in the case on hand.

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190. This position was reiterated in Boby v. State of Kerala, (2023) 15 SCC 760: 2023 SCC OnLine SC 50, wherein it was observed at page 769:

"24. Insofar as the last seen theory is concerned, it will be relevant to refer to the following observations of this Court in State of U.P. v. Satish [State of U.P. v. Satish, (2005) 3 SCC 114: 2005 SCC (Cri) 642] : (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and the possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case, there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."

25. It could thus clearly be seen that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of another person coming in between cannot be ruled out."

191. It was held in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80: 2006 SCC 198 Neutral Citation No. ( 2025:HHC:33005 ) OnLine SC 1047 that where the murder takes place inside the house and the accused have the opportunity to plan the murder, it is difficult for the prosecution to prove how the murder was committed and the burden shifts upon the accused to explain the circumstances leading to the death. It was observed at page 690:

"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 AC 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 a 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 199 Neutral Citation No. ( 2025:HHC:33005 ) 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.

16. A somewhat similar question was examined by this Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall [(1974) 2 SCC 544: 1974 SCC (Cri) 784: AIR 1974 SC 859] and it will be apt to reproduce paras 30 to 32 of the reports which are as under: (SCC pp. 553-54) "30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs, absolute certainty is a myth, and

-- as Prof. Brett felicitously puts it--'all exactness is a fake'. El Dorado of absolute proof being unattainable, the law accepts for it as a working substitute in this workaday world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that 200 Neutral Citation No. ( 2025:HHC:33005 ) a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered--to use the words of Lord Mansfield in Blatch v. Archer [(1774) 1 Cowp 63: 98 ER 969], Cowp at p. 65--'according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted'. Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

32. Smuggling is the clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of fact may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty. As pointed out by Best (in Law of Evidence, 12th Edn., Article 320, p. 291), the 'presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of the stolen property', though the latter is only a presumption of fact. Thus, the burden on the prosecution or the Department may be considerably 201 Neutral Citation No. ( 2025:HHC:33005 ) lightened even by such presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden, to discharge which, very slight evidence may suffice." (emphasis supplied)

17. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar [(1997) 9 SCC 338: 1997 SCC (Cri) 612: AIR 1997 SC 1830] where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.

18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382: 2000 SCC (Cri) 1516]. In this case, the assailants forcibly dragged the deceased, Mahesh, 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 morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years' RI. 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 murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned 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 had 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 202 Neutral Citation No. ( 2025:HHC:33005 ) and laid down the following principle in paras 31 to 34 of the reports: (SCC p. 392) "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 fossilised 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 on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries, and 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 recognised 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. The 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 sets 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 was 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 were found murdered within a short time after the 203 Neutral Citation No. ( 2025:HHC:33005 ) abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused had 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."

20. In Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311: 2001 SCC (Cri) 1546], the accused, after brutally assaulting a boy, carried him away, and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that, for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond a 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 accused, by virtue of their special knowledge, must offer an explanation which might lead the court to draw a different inference.

21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR 1992 SC 2045] (SCC para 39 : AIR para 40); State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v. State of Rajasthan [(2002) 204 Neutral Citation No. ( 2025:HHC:33005 ) 1 SCC 731 : 2002 SCC (Cri) 247] (SCC para 15) and Gulab Chand v. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4).]

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. In Nika Ram v. State of H.P. [(1972) 2 SCC 80: 1972 SCC (Cri) 635: AIR 1972 SC 2077] it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra [(1992) 3 SCC 106:

1993 SCC (Cri) 435], the appellant was prosecuted for the murder of his wife, which took place inside his house. It was observed that when the death had occurred in his custody, the appellant was under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution's case, coupled with the absence of any explanation, was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of the murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300: 1992 SCC (Cri) 642: AIR 1992 SC 2045], the medical evidence disclosed that the wife died of strangulation during late-night hours or early morning, and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself, and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband had ill- treated her, and their relations were strained. Further, the 205 Neutral Citation No. ( 2025:HHC:33005 ) evidence showed that both of them were in one room at night. It was held that the chain of circumstances was complete, and it was the husband who committed the murder of his wife by strangulation, and accordingly, this Court reversed the judgment of the High Court, acquitting the accused and convicting him under Section 302 IPC. In State of T.N. v. Rajendran [(1999) 8 SCC 679: 2000 SCC (Cri) 40], the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m., and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire, which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.

192. No explanation has been provided by the accused; therefore, the only inference which can be drawn is that the accused Chander Sharma and Vikrant Bakshi had killed Yug, and the learned Trial Court had rightly convicted the accused Chander Sharma and Vikrant Bakshi of the commission of an offence punishable under Section 302 of the IPC. Accused Vikrant Bakshi had deleted the video recording. Yug was seen naked in the photograph and the video recording, his clothes were not found, and the learned Trial Court had rightly concluded that the accused Chander Sharma and Vikrant Bakshi had destroyed evidence. However, there is no evidence that the accused had 206 Neutral Citation No. ( 2025:HHC:33005 ) demanded ransom or that the confinement was to extort the property; therefore, the offences punishable under Sections 347 and 364A of the IPC were not made out.

193. Learned Trial Court sentenced the accused to the death penalty and further ordered that they be hanged till death. The Learned Trial Court examined various judgments of the Hon'ble Supreme Court and held that the accused had killed Yug in a well-planned manner. The case falls within the rarest of the rare cases because the act was not done under rage or the spur of the moment, but with a cool mind. The child was seen naked and crying. Background music was going on. The child was kept for 7 days and was thrown into the water tank alive. The accused breached the social trust placed by society upon every person to protect the young, innocent child; there was no enmity, and the parents of Yug remained under mental trauma. The learned Trial Court thus focused on the extreme nature of crime and did not advert the accused and their reformation.

194. The Hon'ble Supreme Court exhaustively considered the general principles for the imposition of the death sentence in Manoj v. State of M.P., (2023) 2 SCC 353: 2022 SCC OnLine SC 677 and held that the State must produce material showing the social 207 Neutral Citation No. ( 2025:HHC:33005 ) and psychological evaluation of the accused. The death penalty can be imposed in the rarest of the rare cases where the Court is satisfied that there is no probability of the accused being reformed and rehabilitated. It was observed at page 454:

The death penalty framework and how to apply it for "principled sentencing"

218. This Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] while upholding the constitutionality of capital punishment, categorically ruled that the new CrPC of 1973 marked a shift as it bifurcated the criminal trial to include a pre- sentence hearing [under Section 235(2)], and further mandated the sentencing court to outline the "special reasons" [under Section 354(3)] or absence of them, by considering circumstances both of the crime and the criminal. The Court also noted that while broad guidelines or indicators may be given, they cannot be put into water- tight compartments that curb the discretion of any Judge to do justice in a given individual case : (SCC pp. 739 & 748, paras 163 & 201) "163. ... Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right to a pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.

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201. ... As we read Sections 354(3) and 235(2) and other related provisions of the 1973 Code, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist." (emphasis in original)

219. The Court also accepted a list of helpful factors of aggravating and mitigating circumstances. [Bachan Singh v. State of Punjab, (1980) 2 SCC 684, paras 202 and 206: 1980 SCC (Cri) 580] However, cautioning the court from treating them to be exhaustive, the Court further clarified that they were merely indicative and that the mitigating circumstances had to be read in a "liberal and expansive" manner, accounting for the dignity of human life : (Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580], SCC p. 751, para 209) "209. There are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. 'We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in 209 Neutral Citation No. ( 2025:HHC:33005 ) an imperfect and undulating society.' Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of the death penalty must receive a liberal and expansive construction by the courts in accordance with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of the legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through the law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

220. In Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470: 1983 SCC (Cri) 681], this Court extrapolated the principles from Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580], and merit repetition : (Machhi Singh case [Machhi Singh v. State of Punjab, (1983) 3 SCC 470: 1983 SCC (Cri) 681], SCC p. 489, paras 38-40) "38. In this background, the guidelines indicated in Bachan Singh case [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from the 210 Neutral Citation No. ( 2025:HHC:33005 ) Bachan Singh case [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] :

(i) The extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the "offender" also require to be taken into consideration along with the circumstances of the "crime".

(iii) Life imprisonment is the rule, and a death sentence is an exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose a sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up, and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines, inter alia, the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

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40. If, upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that a death sentence is warranted, the court would proceed to do so."

221. In Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470, paras 32-37: 1983 SCC (Cri) 681], this Court also attempted to categorise cases under broadly five heads (i.e. manner of commission of murder, motive, anti-social or socially abhorrent nature of the crime, magnitude of the crime, and personality of the victim), by strongly analysing the aggravating circumstances of the crime. A formalistic reliance on these categories however, has the potential of leading any court awry as it has the unintended effect of drawing attention away from the criminal, and focussing disproportionately on the crime

-- the dangers of this standardisation was also noted by this Court in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 :

(2009) 3 SCC (Cri) 113], Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] and more recently in Sanjiv Khanna, J.'s dissenting opinion in Manoharan v. State [Manoharan v. State, (2019) 7 SCC 716 : (2019) 3 SCC (Cri) 337].

222. This Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] had warned against categorising cases. [Id, SCC paras 169-175, 192-

195.] Rejecting the contention that standards and guidelines should be laid down, it was noted in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684:

1980 SCC (Cri) 580] that the degree of culpability cannot be measured, and aggravating and mitigating circumstances could not be rigidly enumerated so as to exclude "all free play of discretion". Reiterating that criminal cases cannot be categorised as there were infinite, unpredictable and unforeseen variations, it was held that by such categorisation, the sentencing process would cease to be judicial, and such standardisation or sentencing discretion 212 Neutral Citation No. ( 2025:HHC:33005 ) is beyond the court's function. Therefore, it would be befitting if reliance were placed not solely on those five categories of crimes (which lays undue emphasis on aggravating circumstances) enumerated in Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470:

1983 SCC (Cri) 681], and instead on the two-question test, and the four guiding principles of Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] that were succinctly culled out in Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470: 1983 SCC (Cri) 681].

223. The decades that followed, have witnessed a line of judgments in which this Court has continually taken judicial notice of the incongruence in the application of the "rarest of rare" test enunciated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684:

1980 SCC (Cri) 580], and therefore, tried to restrict the imposition of the death penalty, in an attempt to strengthen a principled application of the same.

224. This aspect was dealt with extensively in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150] where the Court articulated the test to be a two-

step process to determine whether a case deserves the death sentence -- firstly, that the case belongs to the "rarest of rare" category, and secondly, that the option of life imprisonment would simply not suffice. For the first step, the aggravating and mitigating circumstances would have to be identified and considered equally. For the second test, the court had to consider whether the alternative of life imprisonment was unquestionably foreclosed as the sentencing aim of reformation was unachievable, for which the State must provide material.

225. About four years later, in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611], this Court lamented the continuing lack of attention given to the circumstances of the criminal, reiterated that balancing of aggravating-mitigating circumstances and failure to apply the Bachan Singh [Bachan Singh v. State of 213 Neutral Citation No. ( 2025:HHC:33005 ) Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] sentencing framework uniformly, was leading to Judge-centric and inconsistent jurisprudence in death penalty matters.

226. In Shankar Kisanrao Khade [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, paras 148- 149 : (2013) 3 SCC (Cri) 402] this Court developed yet another framework of the "crime test", criminal test" and "rarest of rare test" (which was held to be distinct from the "balance test" that was discouraged in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150] and subsequently, in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] as well) :

(Shankar Kisanrao Khade case [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, paras 148- 149 : (2013) 3 SCC (Cri) 402], SCC p. 576, para 52) "52. ... In my considered view, the tests that we have to apply while awarding the death sentence are "the crime test", "the criminal test" and the "R-R test" and not the "balancing test". To award the death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to society, no previous track record, etc., the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society-

centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentences to certain types of crimes or not. While applying that test, the court has to look into a variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault 214 Neutral Citation No. ( 2025:HHC:33005 ) and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award a death sentence since the situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."

227. Recently, while considering a review petition, this Court in Rajendra Pralhadrao Wasnik v. State of Maharashtra [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] held that Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] had intended the test to be "probability" and not improbability, possibility or impossibility of reformation and rehabilitation as a mandate of Section 354(4)CrPC. [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460, para 45 :

(2019) 4 SCC (Cri) 420] The Court analysed numerous earlier precedents, noting that evidence by the State on this has been sparse and limited, but was essential for the courts to measure the probability of reform, rehabilitation and reintegration. The Court located this requirement in the right of the accused, who, regardless of being ruthless, was entitled to a life of dignity, notwithstanding his crime.

[Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460, para 47 : (2019) 4 SCC (Cri) 420] While this process is not easy, it was noted that neither is the process of rehabilitation, since it involves reintegration into society. When this is found to be not possible in certain cases, a longer duration of imprisonment was instead permissible.

Uneven application of this framework and (in) consistency in sentencing

228. An overall analysis of capital punishment cases decided by this Court will perhaps reflect that there is, in fact, no pattern. While there are real and valid concerns in the non-uniform application of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] framework, discretion in sentencing, in itself, is not 215 Neutral Citation No. ( 2025:HHC:33005 ) worrisome, and the concern needs to be dispelled. While generally, Judges may look to precedents for the comfort of numbers, that process only gives an indication of how similar instances have been dealt with and has a limited role when it comes to sentencing. The discretion afforded to the court in sentencing is not for it to be Judge-centric or result in disparate rulings, but in fact to enable the court with the flexibility of considering the case-specific factors relating to the crime and criminal, without falling into predetermined patterns. Sentencing is not a mathematical equation and ought not to be seen as one. This has been recognised in numerous cases starting from Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] itself.

229. In Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 :

(2009) 2 SCC (Cri) 1150], analysing the equality principle, due process and proportionality requirement in capital sentencing, it was held that rather than applying strict classification of the type of offences that warrant death sentence, the court must focus on equally considering the aggravating and mitigating circumstances (in which commonality is to be drawn across case), and arrive at individualised sentencing outcomes on a case-to-case basis. [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 172 : (2009) 2 SCC (Cri) 1150] It was noted : (Santosh Bariyar case [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150], SCC p.

550, paras 132-33) "132. ... The imprecision of the identification of aggravating and mitigating circumstances has to be minimised. It is to be noted that the mandate of the equality clause applies to the sentencing process rather than the outcome. The comparative review must be undertaken not to channel the sentencing discretion available to the courts but to bring consistency in the identification of various relevant circumstances. The 216 Neutral Citation No. ( 2025:HHC:33005 ) aggravating and mitigating circumstances have to be separately identified under a rigorous measure.

133. Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580], when it mandates principled precedent-based sentencing, compels scrutiny of mitigating circumstances and aggravating circumstances, and then factoring in a process by which aggravating and mitigating circumstances appearing from the pool of comparable cases can be compared. The weight which is accorded by the court to particular aggravating and mitigating circumstances may vary from case to case in the name of individualised sentencing, but at the same time, reasons for apportionment of weights shall be forthcoming. Such a comparison may point out excessiveness, and also will help repel arbitrariness objections in future. A sentencing hearing, comparative review of cases, and similarly aggravating and mitigating circumstances analysis can only be given a go-by if the sentencing court opts for life imprisonment." (emphasis supplied)

230. The strength of "precedent" and "consistency" is perhaps, therefore, lowest when it comes to matters of sentencing, as long as it is within the confines of legality and resulting in "principled sentencing". In other words, the judicial incongruence when it relates to sentencing would in fact be a positive indicator, rather than a negative one, provided it is still within the well-defined contours of "principled" sentencing. For sentencing in capital offences, discretion to arrive at individualised sentences is encouraged but must be constrained by the "rarest of rare" principle, wherein the court considers aggravating circumstances of the crime, and mitigating circumstances of the criminal (a "liberal and expansive" construction of the latter), which in turn must inform their consideration of whether the option of life imprisonment is unquestionably foreclosed owing to an impossibility [ Held to be "probability" and not "impossibility" 217

Neutral Citation No. ( 2025:HHC:33005 ) in Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] to reform.

231. Deviation from this principle, i.e. unguided discretion, on the other hand, would quite obviously lead to bad law. For instance, Ravji v. State of Rajasthan [Ravji v. State of Rajasthan, (1996) 2 SCC 175: 1996 SCC (Cri) 225] (hereafter "Ravji"), in complete contravention of this Court's earlier Constitution Bench decision of Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] (which focussed on both the crime and criminal), held that "... It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial". A line of cases [Surja Ram v. State of Rajasthan, (1996) 6 SCC 271: 1996 SCC (Cri) 1314; Dayanidhi Bisoi v. State of Orissa, (2003) 9 SCC 310: 2003 SCC (Cri) 1798; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561 : (2008) 3 SCC (Cri) 193; Bantu v. State of U.P., (2008) 11 SCC 113 : (2009) 1 SCC (Cri) 353; Shivaji v. State of Maharashtra, (2008) 15 SCC 269 :

(2009) 3 SCC (Cri) 146; State of U.P. v. Sattan, (2009) 4 SCC 736 : (2009) 2 SCC (Cri) 572; etc.], further relied on this (in this Court's considered opinion, incorrect) decision in Ravji case [Ravji v. State of Rajasthan, (1996) 2 SCC 175:

1996 SCC (Cri) 225], and concluded that the nature and gravity of the crime (i.e. its brutality or heinousness), were sufficient to impose capital punishment, without considering mitigating circumstances of the criminal. Subsequently, the decision in Ravji [Ravji v. State of Rajasthan, (1996) 2 SCC 175: 1996 SCC (Cri) 225] was--quite correctly--declared to be per incuriam by another Bench of this Court in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150], for non- consideration of the circumstances of the criminal. Other cases that have focused on the brutality of the crime, as negating or washing away the need to consider mitigating circumstances, similarly serve as bad precedent.

232. This Court in Rajesh Kumar v. State [Rajesh Kumar v. State, (2011) 13 SCC 706, para 74 : (2012) 2 SCC 218 Neutral Citation No. ( 2025:HHC:33005 ) (Cri) 836] again reiterated that brutality in itself was not enough to impose death sentence -- the accused was convicted for the murder of two children who offered no provocation or resistance to the brutal and inhuman fashion in which the accused committed the crime, however, it was held that due consideration to the mitigating circumstances of the criminal still had to be given. Evidence had to be placed on record by the State, demonstrating that he was beyond reform or rehabilitation, the absence of which was a mitigating circumstance in itself. The High Court had merely noted that he was a first-time offender and had a family to take care of, which this Court noted was a very narrow and myopic view of the mitigating circumstances.

233. Therefore, "individualised, principled sentencing" -- based on both the crime and criminal, with consideration of whether reform or rehabilitation is achievable (held to be "probable" in Rajendra Pralhadrao Wasnik [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] ), and consequently whether the option of life imprisonment is unquestionably foreclosed -- should be the only factor of "commonality" that must be discernible from decisions relating to capital offences. With the creation of a new sentencing threshold in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113], and later affirmed by a Constitution Bench in Union of India v. V. Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695], of life imprisonment without statutory remission (i.e. Articles 72 and 161 of the Constitution are still applicable), yet another option exists, before imposition of death sentence. However, serious concern has been raised against this concept, as it was upheld by a narrow majority, and is left to be considered at an appropriate time.

Theories of punishment

234. The 262nd Report speaks extensively to the penological justification of the death penalty. It finds that 219 Neutral Citation No. ( 2025:HHC:33005 ) there is inconclusive evidence that this form of punishment has more of a deterrent effect, in comparison to life imprisonment. Dismissing the retributive theory of punishment on the ground that it suffers from a lack of guidance on quantifying the punishment that would be appropriate to impose, it categorically states that:

"7.1.2. Capital punishment fails to achieve any constitutionally valid penological goals. 7.1.3. Focusing on the death penalty as the ultimate measure of justice for victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system, such as poor investigation, crime prevention and rights of victims of crime."

235. While the 262nd Report recommends the abolition of the death penalty on this ground, in addition to sentencing having become Judge-centric or arbitrary, it has not prompted parliamentary intervention. Whether the death penalty deserves a relook [as recommended by Kurian Joseph, J. (dissenting) in Chhannu Lal Verma [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the 262nd Law Commission Report, evolving jurisprudence, public discourse and international standards of human rights, is outside the purview of this Court's jurisdiction given the Constitution Bench decision in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580], and a question best left for the legislature to critically consider. In this backdrop, what this Court can do is try and bolster the existing sentencing framework. This is possible only by giving true meaning to the existing guidelines (without falling into the trap of "categorising" crimes that automatically warrant the death penalty). To do so, this Court finds it necessary to lay out certain practical guidelines (elaborated below) that can facilitate consideration of mitigating circumstances as recognised in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 220 Neutral Citation No. ( 2025:HHC:33005 ) SCC 684: 1980 SCC (Cri) 580], and consequently ensure uniform application of this framework.

236. The 262nd Report recognised the paradigm shift in policy and discourse towards a reformative and rehabilitative response to crime, and the development of jurisprudence such that adjudging a case to be "rarest of rare" was not sufficient, and special emphasis had to be placed on considering whether the offender is amenable to reform. Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the State and society's failing, which is what entitles the accused to a chance of reformation. Thus, making life imprisonment the norm and the death penalty the exception. In Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76: 2002 SCC (Cri) 526], while deciding whether the facts in that case were appropriate for the death penalty, traced this shift in approach : (SCC pp. 83-84, para 14) "14. ... Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. The death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3). There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361, which is a new provision in the Code, makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the 221 Neutral Citation No. ( 2025:HHC:33005 ) context of Section 360, the "special reasons"

contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Sections 361 and 354(3) have both entered the statute book at the same time, and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and reactions and choose the appropriate sentence to be imposed." (emphasis supplied)

237. Mitigating factors in general, rather than to excuse or validate the crime committed, seek to explain the surrounding circumstances of the criminal to enable the Judge to decide between the death penalty or life imprisonment. An illustrative list of indicators first recognised in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684, para 206: 1980 SCC (Cri) 580] itself : (SCC p. 750, para 206) "206. ... Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

222

Neutral Citation No. ( 2025:HHC:33005 ) (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence, as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated.

The State shall, by evidence, prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

These are hardly exhaustive; subsequently, this Court in several judgments has recognised, and considered commutation to life imprisonment, on grounds such as young age [Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292 : (2014) 2 SCC (Cri) 321; Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 : (2013) 2 SCC (Cri) 864], socio-economic conditions [Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150; Kamleshwar Paswan v. State (UT of Chandigarh), (2011) 11 SCC 564 :

(2011) 3 SCC (Cri) 409; Sunil Damodar Gaikwad v. State of Maharashtra, (2014) 1 SCC 129 : (2013) 4 SCC (Cri) 83], mental illness [Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 : (2014) 2 SCC (Cri) 1], criminal antecedents [Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775 : (2010) 1 SCC (Cri) 925], as relevant indicators on the questions of sentence. Many of these factors reflect demonstrable ability or merely the possibility even, of the accused to reform [i.e. (3) and (4) of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684:

223

Neutral Citation No. ( 2025:HHC:33005 ) 1980 SCC (Cri) 580] list], which make them important indicators when it comes to sentencing. Pre-sentence hearing -- Opportunity and obligation to provide material on the accused

238. This Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] held that the introduction of pre-sentencing hearing to the accused in 1973 through Section 235(2)CrPC altered the Jagmohan Singh [Jagmohan Singh v. State of U.P., (1973) 1 SCC 20: 1973 SCC (Cri) 169] principle that the court is primarily concerned with the circumstances connected with crime. Therefore, now due consideration has to be given to the circumstances of the criminal as well when adjudicating whether the case falls within the "rarest of rare" and if the option of life imprisonment as an alternative is unquestionably foreclosed. In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684:

1980 SCC (Cri) 580], this Court categorically stated that "[t]he probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society", is a relevant circumstance, that must be given great weight in the determination of sentence.

239. The sentencing hearing contemplated under Section 235(2), is not confined merely to oral hearing but intended to afford a real opportunity to the prosecution as well as the accused, to place on record facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty.

[Malkiat Singh v. State of Punjab, (1991) 4 SCC 341: 1991 SCC (Cri) 976]

240. In the absence of an individual's capacity to effectively bring forth mitigating factors, this Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] placed the burden of eliciting mitigating circumstances on the court, which has to consider them liberally and expansively, whereas the responsibility of providing material to show that the 224 Neutral Citation No. ( 2025:HHC:33005 ) accused is beyond the scope of reform or rehabilitation, thereby unquestionably foreclosing the option of life imprisonment and making it a fit case for imposition of death penalty, is one which falls squarely on the State. This has been reiterated and further spelt out by this Court in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 :

(2009) 2 SCC (Cri) 1150], Rajesh Kumar [Rajesh Kumar v. State, (2011) 13 SCC 706, para 74 : (2012) 2 SCC (Cri) 836], Chhannu Lal Verma [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402], and other decisions [Muniappan v. State of T.N., (1981) 3 SCC 11: 1981 SCC (Cri) 617; Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266, etc.].

241. In Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 :

(2009) 2 SCC (Cri) 1150], making observations on the nature of the information to be collected at the pre-

sentencing stage, this Court further observed that: (SCC p. 527, para 56) "56. At this stage, Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to the sentencing hearing. This information would include aspects relating to the nature, motive and impact of the crime, culpability of the convict, etc. The quality of evidence adduced is also a relevant factor. For instance, the extent of reliance on circumstantial evidence or a child witness plays an important role in the sentencing analysis. But what is sorely lacking in most capital sentencing cases is information relating to the characteristics and socio- economic background of the offender. This issue was also raised in the 48th Report of the Law Commission." (emphasis supplied)

242. The State's duty is heightened in importance even more so in the Indian context, where a majority of the 225 Neutral Citation No. ( 2025:HHC:33005 ) accused have a poor or rudimentary level of legal representation. The importance of collecting socio- economic factors in the context of our criminal justice system was critically noted by the 262nd Report as follows:

"7.1.6. Numerous committee reports, as well as judgments of the Supreme Court, have recognised that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, an overstretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. The death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalised who may lack the resources to effectively advocate their rights within an adversarial criminal justice system."

243. However, despite over four decades since Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684:

1980 SCC (Cri) 580], there has been little to no policy- driven change towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected, for the court's consideration. Scarce information about the accused at the time of sentencing severely disadvantages the process of considering mitigating circumstances. It is clarified that the mere mention of these circumstances by the counsel serves no purpose; rather, they must be connected to the possibility of reformation and assist principled judicial reasoning [as required under Section 235(2)CrPC]. Constrained by this lack of assistance, this Court (as mentioned above) in Rajesh Kumar [Rajesh Kumar v. State, (2011) 13 SCC 706, para 74 : (2012) 2 SCC (Cri) 836] has even gone so far as to hold that the very fact that the State had not given any evidence to show that the convict was beyond reform and rehabilitation was a mitigating circumstance, in itself.

226

Neutral Citation No. ( 2025:HHC:33005 )

244. The lack of forthcoming information has led to attempts by the courts, to look backwards--sometimes many years after the crime has been committed--to evaluate on the one hand, circumstances that could not have been paused in time, and on the other those which can be captured, but for which there exists no frame of reference from the past, for comparison. This inconsistency in some courts calling for reports, while others fail to -- further contributes to our patchwork jurisprudence on capital sentencing, and in turn undermines the equality principle and due process protections that Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150] recognises as existing, in favour of death row convicts.

245. The move to call for a Probation Officer's Report [Birju v. State of M.P., (2014) 3 SCC 421 : (2014) 2 SCC (Cri) 78; Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266; State v. Bharat Singh, 2014 SCC OnLine Del 1510] (as done by this Court even in this case), is in fact a desperate attempt by the courts at the appellate stage, to obtain information on the accused -- at present. Good conduct of the accused at the post-conviction stage in prison (through a jail report), and psychiatric evaluation to evaluate the possibility of reform (albeit at the appellate sentencing stage), were considered recently in Chhannu Lal Verma [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] as necessary indicators for considering mitigating circumstances : (SCC pp. 451-52, paras 15-16) "15. ... Since the appellant has been in jail, we wanted to know whether there was any attempt on his part for reformation. The Superintendent of the jail has given a certificate that his conduct in jail has been good. Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would 227 Neutral Citation No. ( 2025:HHC:33005 ) make amends and get reformed. That there is such a positive change on a death row convict, in our view, should also weigh with the Court while taking a decision as to whether the alternative option is unquestionably foreclosed. As held by the Constitution Bench in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580], it was the duty of the State to prove by evidence that the convict cannot be reformed or rehabilitated. That information not having been furnished by the State at the relevant time, the information now furnished by the State becomes all the more relevant. The standard set by the "rarest of rare"

test in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] is a high standard. The conduct of the convict in prison cannot be lost sight of. The fact that the prisoner has displayed good behaviour in prison certainly goes to show that he is not beyond reform.

16. In the matter of the probability and possibility of reform of a criminal, we do not find that a proper psychological/psychiatric evaluation has been done. Without the assistance of such a psychological/psychiatric assessment and evaluation, it would not be proper to hold that there is no possibility or probability of reform. The State has to bear in mind this important aspect while proving by evidence that the convict cannot be reformed or rehabilitated." (emphasis supplied)

246. However, this too is too little, too late, and only offers a peek into the circumstances of the accused after conviction. The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] test.

247. The goal of reformation is ideal, and what society must strive towards -- there are many references to it 228 Neutral Citation No. ( 2025:HHC:33005 ) peppered in this Court's jurisprudence across the decades

-- but what is lacking is a concrete framework that can measure and evaluate it. Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general to be a space of limited potential for systemic reformation. The goal of reformative punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy-making. As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), this Court deems it necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation. These guidelines may also offer guidance or ideas that such a legislative framework could benefit from, to systematically collect and evaluate information on mitigating circumstances.

Practical guidelines to collect mitigating circumstances

248. There is an urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.

249. To do this, the trial court must elicit information from the accused and the State. The State must, for an offence carrying capital punishment, at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court, disclosing a psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580]. Even for the other factors of (3) and (4)--an onus placed squarely on the State-- 229

Neutral Citation No. ( 2025:HHC:33005 ) conducting this form of psychiatric and psychological evaluation close on the heels of the commission of the offence, will provide a baseline for the appellate courts to use for comparison i.e. to evaluate the progress of the accused towards reformation, achieved during the incarceration period.

250. Next, the State must, in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive, list is as follows:

(a) Age

(b) Early family background (siblings, protection of parents, any history of violence or neglect)

(c) Present family background (surviving family members, whether married, has children, etc.)

(d) Type and level of education

(e) Socio-economic background (including conditions of poverty or deprivation, if any)

(f) Criminal antecedents (details of the offence and whether convicted, sentence served, if any)

(g) Income and the kind of employment (whether none, temporary or permanent, etc.);

(h) Other factors such as history of unstable social behaviour, mental or psychological ailment(s), alienation of the individual (with reasons, if any), etc. This information should mandatorily be available to the trial court at the sentencing stage. The accused, too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.

251. Lastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has been involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e. Probation and Welfare Officer, Superintendent of Jail, etc.). If the appeal is heard after a long hiatus from the trial court's 230 Neutral Citation No. ( 2025:HHC:33005 ) conviction, or the High Court's confirmation, as the case may be -- a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for a more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report, which will further evidence the reformative progress and reveal post-conviction mental illness, if any.

252. It is pertinent to point out that this Court in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69: (2014) 2 SCC (Cri) 266] has, in fact, directed criminal courts to call for additional material:

(SCC p. 86, para 33) "33. ... Many a time, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case." (emphasis supplied) We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of a death sentence."

195. In the present case, the life of a 4-year-old boy was lost. He was playing outside his home, after which he was found 231 Neutral Citation No. ( 2025:HHC:33005 ) missing. We have also seen the video recording on the mobile phone and are shocked by how the child was tied, and he was crying. We are satisfied that the manner in which the child was kept and treated did not deserve any leniency, but at the same time, we are bound to consider the possibility of reformation of the convicts while confirming the death sentence as per the judgment of Hon'ble Supreme Court.

196. According to the report submitted by the Senior Superintendent of Police, Shimla, the convict, Chander Sharma, exhibited normal social behaviour. He did not have any psychological disease. He had no alienation from society.

According to the Probation Officer's report, convict Chander Sharma used to participate in almost all social and religious activities at Krishan Mandir, Ganj Bazar, Shimla. As per the neighbours, he was preparing for a religious procession on the date of his arrest. He belongs to a respectable and religious family. According to the report of the Additional Director General, Prisons & Correctional Services, Himachal Pradesh, the social behaviour of convict Chander Sharma was found to be normal. There was no record of mental or psychological illness. His behaviour during incarceration was satisfactory. He 232 Neutral Citation No. ( 2025:HHC:33005 ) remained helpful and cooperative with the Prison Administration, and no jail punishment was awarded to him. As per the report of the Department of Psychiatry, IGMC Shimla, convict Chander Sharma had no symptoms suggestive of mental/psychological illness.

197. Similarly, the report submitted by the Senior Superintendent of Police, Shimla, regarding the convict Vikrant Bakshi reads that he belongs to a middle-class family. He had normal social behaviour. No traces of any psychological illness were observed. As per the report of the Additional Director General, Prisons & Correctional Services, Himachal Pradesh, the social behaviour of convict Vikrant Bakshi was normal, and there was no sign of any mental and psychological illness. The conduct and behaviour of convict Vikrant Bakshi were found to be satisfactory during incarceration. He remained helpful and cooperative with the Prison Administration, and no jail punishment was awarded to him. He was engaged in the work inside the jail. According to the report of the Department of Psychiatry, convict Vikrant Bakshi did not have any symptoms suggestive of mental/psychological illness. As per the report of the Probation Officer, the behaviour of convict Vikrant Bakshi 233 Neutral Citation No. ( 2025:HHC:33005 ) was found to be satisfactory. He was calm and composed. He belongs to a financially sound family. There was no defect in his character, and his family was respected.

198. These reports do not show that the convicts are incapable of reforming themselves, and the only option left with the Court is to take away their lives.

199. Mr. J.S. Guleria, learned Deputy Advocate General for the State, submitted that the convict had brutally killed a young boy. This submission is not based on the material on record. The evidence is silent as to what transpired after Yug was found missing. We have proceeded based on the last seen theory and other circumstances because there is no evidence regarding the events, which had happened between the day when Yug was found missing and his bones were found in the tank at Kelston; therefore, it is very difficult for us to proceed on the assumption that the convict had treated Yug with brutality justifying the imposition of extreme penalty of death. We agree with the submissions made by Mr. Sartaj Singh Narula, learned counsel for the convict, that the evidence is silent to show whether Yug was thrown into the tank before or after his death. The diatom test relied upon by the prosecution to establish that Yug was 234 Neutral Citation No. ( 2025:HHC:33005 ) thrown alive into the tank is not satisfactory, as demonstrated above. Therefore, the submissions that the accused had thrown the child alive into the tank is not supported by the evidence on record.

200. The judgments relied upon by Mr. J.S. Guleria, learned Deputy Advocate General, have been considered by the Hon'ble Supreme Court in Manoj Pratap Singh (Supra), and it is not necessary to refer to each judgment.

201. In view of the judgment of Hon'ble Supreme Court in Manoj Pratap Singh (supra), we have to see the possibility of reformation of the accused and convince ourselves that the only option left in the case is to take away their lives. We have analyzed the circumstances of the case and the reports submitted by the State regarding the behaviour of the accused in custody. The material on record does not show that the accused cannot be reformed , hence we are unable to confirm the death penalty imposed by the learned Trial Court despite our indignation towards the crime and the same is reduced to life imprisonment, which will mean the natural life of the convicts till their last breath as per the judgment of the Hon'ble Supreme Court in 235 Neutral Citation No. ( 2025:HHC:33005 ) Swamy Shraddananda (2) V. State of Karnataka, (2008) 13 SCC

767.

202. Consequently, the appeal filed by accused Tejinder Pal Singh is allowed and he is acquitted of the charged offences, whereas the appeal filed by Chander Sharma and Vikrant Bakshi are partly allowed and they are acquitted of the commission of offences punishable under Sections 347 and 364A of IPC and the sentence of death imposed upon them by learned Trial Court is ordered to be converted to the life imprisonment which will mean the natural life till their last breath. The death reference received from the learned Trial Court is answered by holding that the accused does not deserve the death sentence in the present case.

203. Subject to this modification, the rest of the judgment is upheld.

204. The record of the learned Trial Court be returned with a copy of this judgment.

(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 23rd September, 2025 (Karan Guleria) KARAN Digitally signed by KARAN SINGH SINGH Date: 2025.09.23 11:47:33 +0545

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