Supreme Court of India
Suresh Chandra Tiwari vs The State Of Uttarakhand on 28 November, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
2024 INSC 907 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1902 OF 2013
SURESH CHANDRA TIWARI & ANR.
…APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND …RESPONDENT(S)
JUDGMENT
MANOJ MISRA, J.
1. This criminal appeal impugns the judgment and
order of the High Court of Uttarakhand at Nainital1
dated 24.5.2012 passed in Criminal Appeal No. 82 of
2003, whereby the appeal of the appellants against the
judgment and order of the Sessions Judge, Pithoragarh
passed in Session Trial No. 36 of 1997 was partly
allowed and the conviction of the appellants was altered
from Section 302/34 of the Indian Penal Code, 18602 to
Signature Not Verified
Digitally signed by
1 MARWAH
INDU The High Court
Date: 2024.11.28
2
17:26:38 IST
IPC
Reason:
Criminal Appeal No. 1902/2013 Page 1 of 33
Section 304 Part I of IPC, and the sentence, inter alia,
was reduced from imprisonment for life to 7 years R.I3.
FACTUAL MATRIX
2. On 3.2.1997, at about 10 AM, PW-7, a cousin of
the deceased, lodged a first information report4 (Exb. Ka-
2) at PS5 Lohaghat, District Pithoragarh, inter alia,
alleging that on 3.2.1997, at about 9.30 AM, he came to
know that dead body of the deceased was lying in the
verandah of Mohan Singh’s shop. Pursuant to the
aforesaid report, the police proceeded to the spot, carried
out inquest and prepared an inquest report (Exb. Ka-8).
It also lifted blood-stained and plain earth/ floor from
the spot and prepared a seizure memo (Exb. Ka-4)
thereof. Belongings of the deceased lying near the spot
were also seized and a seizure memo (Exb. Ka-5) was
prepared. Besides that, a black polythene bag containing
goat meat was also recovered from near the spot and
another seizure memo (Exb. Ka-3) was prepared.
3. Autopsy of the cadaver was conducted by PW-1 on
3.2.1997 at about 2.45 PM. Autopsy report (Exb. Ka-1)
indicated that the deceased died due to shock because
of head injury. The estimated time of death, as per
autopsy report, was about a day before autopsy. Ante-
mortem injuries noticed at the time of autopsy were:
3
Rigorous Imprisonment
4
FIR
5
Police StationCriminal Appeal No. 1902/2013 Page 2 of 33
“1. Incised wound on head on occipital region 4 x 1
cm, margins of wound clear cut and bleeding from
the wound, direction of the wound was oblique.
2. Incised wound 2-1/2 x 1 cm x bone deep in
occipital area, 6 cm back of the right ear, direction
of wound was slanting and clear-cut margins.
Bleeding from wound.
3. Contusion on left region of the forehead, 1-1/2
cm x 1 cm, size of wound was unclear. Colour of
the wound brown and was above 1 cm from left
eyelashes.
4. Contusion with abrasion, from right shoulder to
elbow, in about 15 x 3 cm area, colour of the wound
was brown.
5. Contusion on the joints of both the wrists.
6. Contusion 4 cm x 1-1/2 cm at right knee, colour
of the wound was brown.
7. Contusion 3 cm x 1 cm on the left knee, colour
of the wound was brown.
8. Contusion 2 cm x 1 cm below 10 cm from the
knee on left leg.
9. Abrasion on the right hip 3 cm x 2 cm.
10. Abrasion 4 cm x 1-1/2 cm on the left hip.
Internal examination disclosed fracture of occipital
bone”
4. On 6.2.1997, the police arrested the appellants on
suspicion and, according to the police, at the pointing
out of the appellants, the place where the deceased was
allegedly assaulted was discovered. From that place,
allegedly, some bloodstained stones and mud were lifted
and a seizure memo (Exb. Ka-6) was prepared.
5. During investigation, inter alia, statements of
witnesses who had seen the deceased in the company of
the accused on 2.2.1997 during daytime and who had
seen the two accused in the company of each other, late
in the night of 2.2.1997, on the pathway, near the place
Criminal Appeal No. 1902/2013 Page 3 of 33
from where the dead body of the deceased was recovered
were recorded. Based on that, a charge sheet was
submitted against the appellants.
6. After taking cognizance on the charge sheet, the
case was committed to the Court of Session. The
Sessions Court framed charges against the appellants
for offences punishable under Sections 302 /201 read
with Section 34 IPC. The accused appellants denied the
charges and claimed for trial.
PROSECUTION EVIDENCE
7. As the prosecution case rests on circumstantial
evidence, to test the correctness of the findings, a
scrutiny of the evidence would be apposite. We would,
therefore, notice the prosecution evidence in some detail.
8. Prosecution had examined 10 witnesses:
(a) PW-1 (the autopsy surgeon) proved the
autopsy report. He accepted the possibility of: (a)
head injuries being caused by a sharp-edged stone
or a sharp-edged weapon; (b) death having occurred
a day before i.e., on 2.2.1997 around 5.30 PM.
(b) PW-2 – Hayat Singh – He had his shop about
30 yards away from Mohan Singh’s shop (i.e., from
where the dead body was recovered on 3.2.1997).
According to him, on 2.2.1997, at about 7 PM, while
he was sitting at his shop, next to a fire-place to
ward off cold winter night, he saw three persons
coming from near Mohan Singh’s shop. Those three
Criminal Appeal No. 1902/2013 Page 4 of 33
were Jagdish Punetha and the two accused. Later,
that night, between 10 PM and 11 PM, while he was
returning to his shop to fetch his purse, in torch
light, he saw the two accused going together on the
same path towards village Bhumlai.
During cross-examination, PW-2 stated (a) that
his statement was recorded by the investigating
officer on 9.2.1997; (b) prior to that, he made no
disclosure about it to any one; (c) that night, it was
drizzling; (d) that from his shop, Mohan Singh’s shop
is 30-35 yards away and in between his shop and
Mohan Singh’s shop there are shrubs, therefore, it
is difficult to notice as to who is doing what there,
from his shop; (e) that in 1995 he had a fight with
accused Bhuwan (appellant no.2), which was
compromised on payment of Rs.3000 by him.
(c) PW-3 – Mohan Singh (i.e., the shop-owner
from whose shop’s verandah, dead body was
recovered) stated that on 2.2.1997, at about 6 PM,
the two accused had come to his shop at Tolan and
had asked for milk. After having milk, they asked
each other about the deceased. He heard them
saying that the deceased has not been seen. Shortly
thereafter, they left his shop with Jagdish Punetha,
who was present at the shop from before. Thereafter,
PW-3 left his shop. Next day, at about 8.30 AM,
when PW-3 returned to his shop, he noticed the
Criminal Appeal No. 1902/2013 Page 5 of 33
dead body of the deceased in the verandah of his
shop.
During cross-examination, PW-3 stated that on
2.2.1997 it was very cold and there was a slight
drizzle. PW-3 stated that he left his shop at about 8
PM on 2.2.1997.
(d) PW-4 – Shankar Dutt Upreti – He stated that
on 2.2.1997, at about 4.30 PM, while he was coming
to Lohaghat, he met accused appellants near Degree
College, Gadhera. Deceased was also with them.
Then he clarified that the deceased was with Suresh
Chandra Tiwari (i.e., appellant no.1) whereas
Bhuwan (appellant no.2) was 50-60 paces behind
them.
During cross-examination, PW-4 admitted that
after the death of the deceased, he had observed
rituals as are to be observed when death occurs in
the family. However, he denied belonging to the
family of the deceased.
(e) PW-5- Mahesh Upreti- He stated that the
accused appellants are very close friends of each
other. In 1996 panchayat elections, the deceased,
who is PW-5’s cousin, supported PW-5’s
candidature whereas accused supported a rival
candidate, who was nephew of Suresh Chandra
(appellant no.1). During elections, Suresh Chandra
had extended death-threats. Later, when PW-5
Criminal Appeal No. 1902/2013 Page 6 of 33
contested election for the office of Pradhan, Suresh
Chandra supported a rival candidate. In the first
meeting of Gram Panchayat, held on 19.1.1997,
Suresh Chandra extended death threat to the
deceased.
During cross-examination, he admitted that he
made no report about extension of threats. However,
he denied making false accusations because
deceased was his cousin.
(f) PW-6 – Jahangir- He stated that he is a meat
vendor. On 2.2.1997, at about 3.30 PM, Suresh
Chandra had purchased a kilogram of meat from his
shop.
During cross-examination, PW-6 stated that there
are 2 or 3 other meat vendors at Lohaghat.
(g) PW-7 – Harish Chandra Upreti- He stated that
the deceased was his first cousin. On receipt of
information about his death, he lodged the report
(Exb. Ka-2).
(h) PW-8 – Jeevan Chandra Upreti – He stated
that on 3.2.1997 upon receiving information about
deceased’s death, he went to the spot. That day
itself, three seizure memos (Exb. Ka-3, 4 and 5) were
prepared, which bear his signature. These memos
related to: (i) seizure of a black polythene bag
containing meat from open field near the spot; (ii)
lifting of blood-stained floor and plain floor from the
Criminal Appeal No. 1902/2013 Page 7 of 33
spot; and (iii) seizure of blood-stained clothes and a
pair of Lakhani half-shoes of the deceased from open
field near the spot. He added that on 6.2.1997, at
the pointing of the accused, in the presence of
Investigating Officer, a blood-stained stone, a blood-
stained Patti and plain earth was seized from
Madhkhetla and a seizure memo (Exb. Ka-6) was
prepared, which bears his signature. He also stated
that on 9.2.1997 Hayat Singh handed over his torch
to the investigating officer and a seizure memo (Exb.
Ka-7) was prepared, which bears his signature.
During cross examination, PW-8 stated that he
did not accompany the police on those three dates
but was present there. In respect of seizure made on
6.2.1997 he stated that he did not go with the police.
Rather, he was present at the village. Police had
reached between 11 and 12. Accused were arrested
in the evening of 6.2.1997. He stated that
Madhkhetla is about 2 km away from his village. He,
however, denied the suggestion that all papers were
prepared at one go, while sitting at the police
station, and that nothing was recovered.
(i) PW-9- Anand Lal- the first investigating officer –
He stated that on 3.2.1997 he was posted as Sub-
inspector at PS Lohaghat when the FIR was lodged.
He conducted initial stages of investigation such as
making GD entry of the report, conducting inquest,
Criminal Appeal No. 1902/2013 Page 8 of 33
sending the dead body for autopsy and lifting of: (i)
blood-stained floor/plain floor from the spot; and (ii)
clothes, half-shoes of deceased and black polythene
bag containing meat from Madhkhetla. He also
stated that the seized articles were deposited at the
Maalkhana. Thereafter, investigation was carried
out by PW-10. He had produced material exhibits
during trial.
During cross-examination, PW-9 admitted that
PW-8 is relative of the deceased. He also admitted
that at the time of inquest, Hayat Singh (PW-2) and
Mohan Singh (PW-3) were present. He then clarified
that distance between Tolan and Madhketla is about
80 yards.
(j) PW-10 – Kundan Singh – the second
investigating officer – He stated that he took over
investigation of the case on 4.2.1997. On 5.2.1997
he conducted spot inspection of the place where
deceased’s belongings such as clothes etc. were
found and prepared site plan (Exb. Ka-16). On
5.2.1997 itself, he inspected place from where dead
body was recovered and prepared site plan (Exb. Ka-
17). On 6.2.1997 he arrested the accused appellants
and interrogated them at the police station, of which
GD entry no.27 (Exb. Ka-18) was prepared at 19:20
hrs. On the same day, based on disclosure made by
the accused, blood-stained stone and plain stone as
Criminal Appeal No. 1902/2013 Page 9 of 33
well as earth were seized, of which seizure memo is
Exb. Ka-6. According to him, complicity of the
accused in the crime had come to light before
6.2.1997. However, on 6.2.1997, he visited,
separately, the house of the two accused and
arrested them. On interrogation they accepted their
guilt and showed him the place where the deceased
was assaulted. From there, he recovered blood-
stained stone, etc. Thereafter, the accused
appellants were lodged in the lock-up where their
statements were recorded. On 9.2.1997, the
statement of Hayat Singh was recorded, and his
torch was recovered. Based on his statement, a site
plan (Exb. Ka-20), showing the place from where
Hayat Singh saw the accused appellants on
2.2.1997, was prepared. On 9.2.1997, site plan
(Exb. Ka-21) of the place from where stone etc. had
been recovered was prepared. He stated that seized
case property was sent for forensic examination vide
letter (Exb. Ka-22), and on completion of
investigation, charge sheet (Exb. Ka-23) was
submitted against the accused on 18.3.1997. PW-10
also produced the stones which were recovered from
the place pointed out by the accused.
During cross-examination, he admitted that in the
site plan prepared by him, he had not mentioned the
distances. He also admitted that the accused were
Criminal Appeal No. 1902/2013 Page 10 of 33
produced before the remand magistrate on 8.2.1997
and not on 7.2.1997. He, however, denied the
suggestion that all investigative steps were bogus
and completed while sitting at the police station.
STATEMENT UNDER SECTION 313 Cr.PC
9. In his statement under Section 313 of the Code of
Criminal Procedure, 19736, Suresh Chandra Tiwari
(appellant no.1) either denied, or feigned ignorance of,
the incriminating circumstances put to him. But
admitted (a) that the body of the deceased was found in
front of the shop of Mohan Singh; (b) that the autopsy
report was prepared by PW-1; (c) that panchayat
elections were held in the year 1996; and (d) that he was
interrogated on 6.2.1997, though he disclosed nothing
incriminating. Notably, the incriminating circumstance
qua discovery of blood-stained stone, etc. at his instance
on 6.2.1997, vide seizure memo Exb. Ka-6, was not put
to him. At last, he stated that owing to enmity he has
been falsely implicated.
10. Identical is the statement of Bhuwan Chandra
Punetha (appellant no.2). Notably, the incriminating
circumstance of recovery of blood-stained stone etc. on
6.2.1997, of which seizure memo Exb. Ka-6 was
prepared, was not put to him.
6
CrPC
Criminal Appeal No. 1902/2013 Page 11 of 33
TRIAL COURT FINDINGS
11. Trial court found the following circumstances
proved: (i) the deceased was last seen alive in the
company of the accused on 2.2.1997 at about 4.30 PM;
(ii) the accused, in the night of 2.2.1997, were seen on
the pathway going towards Madhkhetla (where articles
of the deceased were found) and were also noticed
coming back from the same route on which shop of
Mohan Singh falls; (iii) Suresh Chandra Tiwari had
purchased a kilogram of meat on 2.2.1997 from PW-6,
and there was recovery of a polythene bag, containing
meat, from the place where other articles of the deceased
were found; (iv) the accused were looking for Suresh
Upreti (the deceased) in the evening of 2.2.1997, as was
evident from their talks, while they were present at the
shop of Mohan Singh (PW-3); (v) autopsy report and
medical evidence confirmed a homicidal death of the
deceased as also the fact that ante-mortem head injury
could have been caused by a sharp-edged stone; (vi)
blood-stained stone was found at the place pointed out
by the accused appellants, and forensic report confirmed
presence of human blood on it, therefore, the chain of
circumstances stood complete, which pointed that
sometime in the night of 2.2.1997 the accused
appellants killed the deceased due to past enmity and
kept his body in front of Mohan Singh’s shop.
Criminal Appeal No. 1902/2013 Page 12 of 33
Consequently, the trial court convicted the accused-
appellants for offences punishable under Sections
302/34 and 201/34 of IPC.
HIGH COURT FINDINGS
12. Aggrieved by the judgment and order of the trial
court, the appellants filed an appeal before the High
Court. The High Court affirmed the findings of the trial
court on strength of the circumstances narrated above
and held that recovery of blood-stained stone(s) at the
instance of the accused, of which seizure memo (Exb.
Ka-6) was prepared, corroborated the prosecution case
to dispel any doubt about their guilt. In addition, the
High Court relied on the disclosure statement (Exb. Ka-
18) which, according to the High Court, led to discovery
of the place and consequential recovery. However, the
High Court, upon finding that the accused had no
previous criminal record and except injuries 1 and 2
none were dangerous to life and those two could be a
result of a solitary blow, thought fit to alter the
conviction from offence of murder, punishable under
Section 302 of IPC, to offence of culpable homicide not
amounting to murder, punishable under Section 304
Part I of IPC, and thereby reduced the sentence,
accordingly.
13. Aggrieved by their conviction, the appellants are
before us.
Criminal Appeal No. 1902/2013 Page 13 of 33
14. We have heard the learned counsel for the parties
and have perused the record.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
15. On behalf of the appellants, it was submitted:
(i) The circumstances relied upon were not proved
beyond reasonable doubt.
(ii) The last seen circumstance narrated by PW-2 is
not conclusive as there is no proximity between the
place where the deceased was last seen alive in the
company of the accused and the place from where
the body of the deceased was recovered. Further, the
time gap between the time when the deceased was
last seen alive with the accused and the time when
dead body was recovered is so large that intervening
circumstances cannot be ruled out. Moreover, the
circumstance of walking side by side on a pathway
by itself is not an incriminating circumstance.
(iii) The incriminating circumstance of discovery
/recovery at the instance of the accused has not
been put to either of the two accused while recording
their statements under Section 313 of CrPC,
therefore the same cannot be relied upon.
(iv) The disclosure statement was inadmissible as it
did not lead to discovery because, according to PW-
10, recovery was made from the place pointed out by
the accused-appellants even before their disclosure
Criminal Appeal No. 1902/2013 Page 14 of 33
statement was recorded at the police station.
Otherwise also, it is not clear from the evidence as
to which of the two accused pointed out the place
first, to effectuate the recovery. Hence, recovery
cannot be imputed to any of the two accused.
(v) Assuming that recovery of stone is imputable to
the accused, it is not proved that it carried blood of
the deceased or that it could have caused such
injuries as were found on deceased’s body. Thus, the
recovered article was not connected to the crime.
(vi) PW-2’s narration about seeing accused-
appellants walking on the path in front of Mohan
Singh’s shop is inconsequential as anyone could
walk on a public path. Moreover, testimony of PW-
2 does not inspire confidence because, despite being
present at the time of inquest on 3.2.1997, he
remained silent till 9.2.1997.
(vii) The recovery of a polythene bag containing
meat from the spot, coupled with the testimony of
meat vendor, is not an incriminating circumstance
because, firstly, the meat vendor admitted that there
are many other meat vendors in the area and,
secondly, there is no evidence that the bag recovered
was the one which he sold to the accused.
(viii) Neither the trial court nor the High Court tested
the evidence to ascertain (a) whether circumstances
were proved beyond reasonable doubt; and (b)
Criminal Appeal No. 1902/2013 Page 15 of 33
whether they constituted a chain so complete as to
rule out all other hypotheses save the one consistent
with the guilt of the accused.
SUBMISSIONS ON BEHALF OF THE STATE
16. Per contra, on behalf of the State, it was submitted
that each of the incriminating circumstances were
proved beyond doubt; the chain of circumstances stood
complete; and it pointed towards the guilt of the
appellants by ruling out all hypotheses consistent with
their innocence. The matter is concluded by concurrent
findings of fact, therefore, there is no merit in the appeal.
ANALYSIS
17. We have considered the rival submissions and have
perused the materials on record.
18. At the outset, we may put on record that if finding
of guilt is returned without properly evaluating and
testing the evidence by applying the requisite legal
principles, it can always be corrected by this Court in
exercise of its powers under Article 136 of the
Constitution of India.
LEGAL PRINCIPLES QUA CIRCUMSTANTIAL EVIDENCE
19. Before we proceed to test the correctness of the
findings returned by the trial court as well as the High
Court, we must bear in mind that the prosecution case
rests on evidence circumstantial in nature. As to when
on strength of such evidence an accused can be
Criminal Appeal No. 1902/2013 Page 16 of 33
convicted, the legal principles, as propounded in a series
of decisions7 of this Court, may be summarized thus:
(i) the circumstances from which the conclusion of
guilt is to be drawn should be fully established;
(ii) the circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused;
(iii) the circumstances taken cumulatively should
form a chain so far complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the accused;
(iv) the circumstances should be consistent only
with the hypothesis regarding the guilt of the
accused; and
(v) they must exclude every possible hypothesis
except the one which is sought to be proved.
20. Adding on to the aforesaid legal principles, in Devi
Lal vs. State of Rajasthan8, a three-judge bench of this
Court held that in a case based on circumstantial
evidence where two views are possible, one pointing to
the guilt and the other to his innocence, the accused is
entitled to the benefit of one which is favorable to him.
7
See: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116; Hanumat Govind Nargundkar v. State of
Madhya Pradesh AIR 1952 SC 343; Santosh @ Bhure versus State (G.N.C.T) of Delhi, 2023 SCC OnLine SC 538
8
(2019) 19 SCC 447
Criminal Appeal No. 1902/2013 Page 17 of 33
21. Besides that, before recording conviction, the court
must be satisfied that the accused ‘must be’ and not
merely ‘may be’ guilty. In Shivaji Sahabrao Bobade vs.
State of Maharashtra9, this Court, elaborating upon
the above principle, observed that the mental distance
between ‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions. Therefore, even if the
prosecution evidence generates strong suspicion against
the accused, it cannot be a substitute for proof.
22. Bearing in mind the aforesaid legal principles, we
would examine and consider – (a) whether the
circumstances relied by the prosecution have been
proved beyond reasonable doubt; (b) whether those
circumstances are of a definite tendency unerringly
pointing towards the guilt of the accused; (c) whether
those circumstances taken cumulatively form a chain so
far complete that there is no escape from the conclusion
that within all human probability the crime was
committed by the accused; (d) whether they are
consistent only with the hypothesis of the accused being
guilty; and (e) whether they exclude every possible
hypothesis except the one to be proved.
CIRCUMSTANCES RELIED BY THE PROSECUTION
23. The prosecution case rests on the following
circumstances:
9
(1973) 2 SCC 793
Criminal Appeal No. 1902/2013 Page 18 of 33
(i) Accused-appellant no.1 and the deceased had
supported rival candidates in the last panchayat
elections held in 1996, and on 19.01.1997 accused
– appellant no.1 had threatened the deceased in a
Gram Sabha meet, therefore there existed motive for
the crime.
(ii) The deceased was last seen alive on 2.2.1997, at
about 4.30 PM, with the accused-appellants by PW-
4.
(iii) According to PW-3, whilst accused-appellants
were at his shop on 2.2.1997, at about 6.30 PM, they
were looking for the deceased.
(iv) In the night hours of 2.2.1997, the accused-
appellants were noticed walking on the pathway in
front of Mohan Singh’s shop from where deceased’s
body with multiple ante-mortem injuries, confirming
a homicidal death, was recovered next day morning.
(v) A polythene bag containing meat was recovered
from the place where belongings of the deceased
were littered. Testimony of PW-6 proved that
accused-appellant no.1 had purchased 1 kg of meat
on 2.2.1997 at about 3.30 PM.
(vi) On the disclosure made by the accused-
appellants, as well as at their pointing out, on
6.2.1997 blood-stained stone(s) were recovered
which might have been used to inflict head injury to
the deceased, resulting in his death.
Criminal Appeal No. 1902/2013 Page 19 of 33
24. We shall now deal with each of the above
circumstances separately.
MOTIVE
25. Though prosecution has been successful in
establishing that in 1996 panchayat elections the
deceased and accused-appellant no.1 had supported
rival candidates, but it could lead no concrete evidence
as regards any untoward incident precipitating the crime
in question. No doubt, evidence about extension of death
threat in a public meet of the Gram Sabha, held in
January 1997, has come, but, admittedly, no such
incident was reported to the police. Hence, motive
proved is not such as may have a material bearing on
the prosecution case. Otherwise also, motive on its own
cannot make or break the prosecution case.
LAST SEEN CIRCUMSTANCE
26. The circumstance of deceased being last seen alive
in the company of the deceased is a vital link in the chain
of other circumstances but on its own strength it is
insufficient to sustain conviction unless the time-gap
between the deceased being last seen alive with the
accused and recovery of dead body of the deceased is so
small that possibility of any other person being the
author of the crime is just about impossible. Where the
time-gap is large, intervening circumstances including
Criminal Appeal No. 1902/2013 Page 20 of 33
act by some third person cannot be ruled out.10 In such
a case, adverse inference cannot be drawn against the
accused merely because he has failed to prove as to
when he parted company of the deceased.
27. In the instant case, PW-4 allegedly saw the
deceased walking on a street with accused-appellant
no.1 on 2.2.1997, at about 4.30 PM, near Gadhera
Degree College. PW-4 further stated that accused-
appellant no.2 was walking 50-55 paces behind them.
No evidence was led by the prosecution to demonstrate
that the place where the deceased was last seen alive
with the accused was near the place from where
deceased’s body was recovered. Further, the time gap
between 4.30 PM of 2.2.1997 and 8.30 AM of 3.2.1997
(i.e., when the dead body was recovered) is so large that
third party hand in the crime cannot be ruled out.
Otherwise also, if two or more persons are seen walking
on a public street, either side by side, or behind one
another, it is not such a circumstance from which it may
be inferred with a degree of certainty that those were
together or in company of each other. Quite often on a
public path a person may happen to walk side by side a
stranger for a considerable distance without even talking
to him. Likewise, a person may exchange pleasantries
with another person walking on the path, but that by
10
See Nizam v. State of Rajasthan, (2016) 1 SCC 550; Navaneethakrishnan v. State, (2018) 16 SCC 161; Kanhaiya Lal
v. State of Rajasthan, (2014) 4 SCC 715; State of U.P. v. Satish, (2005) 3 SCC 114; Ramreddy Rajesh Khanna Reddy &
Anr. V. State of A.P., (2006) 10 SCC 172; and Bodhraj v. State of J & K, (2002) 8 SCC 45
Criminal Appeal No. 1902/2013 Page 21 of 33
itself is not sufficient to infer that the two are in company
of each other. Importantly, the prosecution case is not
that the deceased was picked up from his house by the
accused-appellant(s). Had it been so, in absence of
evidence as to when they parted company of each other,
adverse inference against the accused might be
permissible, if the other circumstances so warrant. But
here there is no evidence of that kind. Therefore, taking
into account (a) the place where the accused appellants
and the deceased were allegedly seen together; and (b)
lack of proximity of the time and place when the three
were seen together with the time and place when, and
from where, the body of the deceased was recovered, we
are of the considered view that the last seen
circumstance as canvassed by the prosecution is not of
a definite tendency unerringly pointing towards the guilt
of the accused-appellants.
APPELLANT(S) LOOKING FOR THE DECEASED
28. PW-3 speaks of accused-appellants’ presence at his
shop on 2.2.1997, at about 6.30 PM, as also of they
being looking for the deceased. This circumstance has
been considered incriminating by the courts below
because it throws a possibility of accused being looking
for the deceased with an intent to finish him off. In our
view, this circumstance is not of a definite tendency in
unerringly pointing towards the guilt of the accused,
inasmuch as there may be multiple reasons for a person
Criminal Appeal No. 1902/2013 Page 22 of 33
to look for another. Importantly, there is no evidence
that the accused appellants were heard conspiring
against the deceased or expressing their animosity
towards him. Rather, this circumstance runs contrary to
the last seen circumstance because if the accused were
in the company of the deceased, why would they be
looking for the deceased.
APPELLANTS WERE NOTICED IN THE NIGHT HOURS
29. PW-2 stated that on 2.2.1997 he noticed the
appellants with Jagdish Punetha coming from the shop
of Mohan Singh on 2.2.1997 between 6.30 PM and 7 PM.
This circumstance is not an incriminating circumstance
because from the statement of Mohan Singh (PW3) he
was at his shop when the above three left his shop.
However, PW-2 goes on to state that in the night hours
of 2.2.1997 when he returned to his shop to fetch his
purse, he noticed the accused-appellants walking on the
path in front of Mohan Singh’s shop. This circumstance
is taken as highly incriminating by the courts below
because there was no reason for the appellants to be
there at that odd hour of cold winter night. According to
the courts below, this circumstance explains the
presence of deceased’s body in front of Mohan Singh’s
shop.
30. If we test the statement of PW-2 against the weight
of other evidence on record, it does not inspire
confidence, firstly, because from PW-9’s (the first
Criminal Appeal No. 1902/2013 Page 23 of 33
investigating officer) statement it appears that PW-2 was
present at the time of inquest, which was held on
3.2.1997, yet he chose not to disclose about what he saw
till 9.2.1997. Interestingly, statement of PW-2 was
recorded by PW-10 (i.e., the second investigating officer)
on 9.2.1997 after the accused-appellants had already
been arrested and even recovery of incriminating articles
at their instance had allegedly been made. In what
circumstances PW-2 withheld his statement that long
and thereafter came to make a disclosure is not
explained in the prosecution evidence. Secondly, the site
plan (Exb. Ka-20) does not disclose the distance from
where PW-2 spotted the two accused in the company of
each other. Thirdly, PW-2 admits that in between his
shop and Mohan Singh’s shop there are shrubs, and it
is not possible to see from his own shop as to what is
happening at Mohan Singh’s shop. Fourthly, PW-2’s
presence is fortuitous because, admittedly, he had shut
his shop and retired to the comfort of his home. It is
highly unlikely that a person would take the pains of
returning in late hours of winter night, particularly when
it is drizzling, only to fetch his purse inadvertently left at
his own shop. Fifthly, he is a witness inimical to the
accused because he had a fight with appellant no.2 prior
to the incident, which, however, resulted in a
compromise on his shelling out Rs.3000/-. Besides that,
walking on a public pathway in front of a shop where
Criminal Appeal No. 1902/2013 Page 24 of 33
dead body is found lying next day morning is by itself
not an incriminating circumstance on which alone,
conviction could be sustained. More so, when there is no
evidence that the accused appellants were seen dragging
or lifting the body of the deceased to the shop of Mohan
Singh. Unfortunately, neither the trial court nor the High
Court thoroughly tested the testimony of PW-2 against
other proven circumstances on record, as discussed
above.
RECOVERY OF POLYTHENE BAG
31. Prosecution proved recovery of a black polythene
bag containing 1 kg of meat from the place where other
belongings of the deceased were littered. This recovery
was made on 3.2.1997 and is considered incriminating
by the prosecution because, according to PW-6, on
2.2.1997 at about 3.30 PM the appellant no.1 had
purchased a kilogram of meat from him. In our view, this
circumstance cannot be considered incriminating as
there is no evidence that the meat bag found was
identified by PW-6 as the one sold by him to the accused.
Otherwise also, black colored polythene is quite
commonly used for carrying goods including meat
products. Admittedly, there were two or three other meat
vendors in the vicinity. In such circumstances which
vendor’s meat was found can be anybody’s guess. This
was, therefore, hardly an incriminating circumstance to
link the appellant no.1 to the crime. More particularly,
Criminal Appeal No. 1902/2013 Page 25 of 33
when fingerprints on the polythene were neither lifted
nor compared with those of any of the accused.
DISCLOSURE/ DISCOVERY
32. Exb. Ka-18 is the disclosure statement recorded
vide GD Entry no.27 at 19:20 hrs. on 6.2.1997. Exb. Ka-
6, which is also dated 6.2.1997, is the memorandum of
seizure of blood-stained stones, plain stones, and plain
earth from the spot where, according to the disclosure
made by the two accused, the deceased was assaulted
and killed. PW-8 is witness of that seizure, whereas PW-
10 is the investigating officer who got the disclosure
statement recorded. The articles seized vide Exb. Ka-6
were initially produced as material exhibits 1 to 5 by PW-
9 (i.e., the first investigating officer) and were later
identified by PW-10 (i.e., the second investigating
officer).
33. Exb. Ka-21 is the site plan prepared by the
investigating officer (PW-10) on 9.2.1997 showing the
place from where that seizure was made. A perusal
thereof would reveal that the place from where recovery
of stone, etc. was shown was an open pathway.
34. Exb. Ka-6 reveals that after arrest while the two
accused were being brought to the police station, in the
presence of Jeevan Upreti (PW-8) and Mahesh Upreti,
they pointed out the place where the deceased was
assaulted by them with the help of a stone and thereafter
dragged to a field at Madhkhetla where he was again
Criminal Appeal No. 1902/2013 Page 26 of 33
assaulted and killed. Exb. Ka-6, however, does not
record that any of the accused had specifically pointed
out a particular stone or spot. Rather, it records that on
way to the police station the accused had showed the
place of assault, therefore the police stopped the vehicle
to look for clues, and then the stone, etc. mentioned
therein were collected.
35. Importantly, PW-9 who investigated the case on
3.2.1997 (i.e., the first investigating officer) produced
these stones, etc. (i.e., one big stone, three small stones,
wooden plank, blood-stained and plain earth) as
material exhibits 1 to 5 respectively. During cross-
examination, PW-9 admitted that the large stone
produced as material exhibit no.1 bore no blood stain.
PW-9 also stated, during cross-examination, that in the
night of 2.2.1997 it had rained, and that rain shower
converted into a drizzle on 3.2.1997. He went on to state
that the entire land terrain from Lohaghat to
Madhkhetla had turned slippery due to rain. Notably,
the seizure memorandum (Exb. Ka-6) records that blood
on the stone appeared to have been washed away due to
rain. In these circumstances there was no chance of
blood being found on the stone etc., which was lying in
open, on 6.2.1997 (i.e., 4 days after the incident). The
forensic report Exb. Ka-22 seems to confirm that there
was no blood found on the stone. In fact, as per forensic
report (Exb. Ka-22), three items were received by the
Criminal Appeal No. 1902/2013 Page 27 of 33
laboratory for chemical examination, namely, (1) stone/
blood-stained/ plain earth, (2) cement plaster (blood-
stained) and plain earth and (3) blood-stained earth and
plain earth. However, the chemical examination report
clearly discloses that in respect of items (1) and (2) above
no blood was found. Though human blood was found on
item (3), it is not clear from the oral testimony of the
witnesses as to from where item (3) was lifted. However,
from the seizure memorandum (Exb. Ka-4) it appears
that item (3) was lifted on 3.2.1997 from that spot where
body of the deceased was found in the morning of
3.2.1997. In these circumstances, we are of the view that
even if we accept the recovery of stone(s) at the instance
of the accused-appellants on 6.2.1997, the same is
inconsequential because it could not be connected to the
crime.
36. Besides that, two incised wounds with clear cut
margins were found on the head of the deceased. Though
doctor (PW-1) said that they could be caused by a sharp-
edged stone but whether the seized stone could have
caused it is not proved. Importantly, the stone was not
shown to the doctor to have his opinion as to whether
those head injuries could be caused by use of it. For all
the reasons above, we are of the considered view that the
recovery allegedly made from the place discovered
consequent to the disclosure statement/pointing out by
the accused is inconsequential as it could not be
Criminal Appeal No. 1902/2013 Page 28 of 33
connected to the crime. The High Court erred by placing
reliance on the same.
37. Otherwise also, the disclosure statement (Exb. Ka-
18) was not admissible in evidence because the alleged
discovery was not made pursuant to that statement.
Disclosure statement was recorded at the police station
whereas recovery was made from the place pointed out
by the accused enroute to the police station. It was,
therefore, a case of recovery from the place allegedly
pointed out by the accused and not based on a
disclosure statement. In Geejaganda Somaiah vs.
State of Karnataka11, this Court has cautioned the
courts about misuse of provision of Section 27 of the
Evidence Act, 1872 while observing as under:
“22. As the section is alleged to be frequently
misused by the police, the courts are required to be
vigilant about its application. The court must
ensure the credibility of evidence by police because
this provision is vulnerable to abuse. It does not,
however, mean that any statement made in terms
of the aforesaid section should be seen with
suspicion and it cannot be discarded only on the
ground that it was made to a police officer during
investigation. The court has to be cautious that no
effort is made by the prosecution to make out a
statement of the accused with a simple case of
recovery as a case of discovery of fact in order to
attract the provisions of section 27 of the Evidence
Act.”
(Emphasis supplied)
38. Above apart, there is another reason to doubt the
alleged discovery (i.e., based on disclosure made by the
11
(2007) 9 SCC 315
Criminal Appeal No. 1902/2013 Page 29 of 33
accused-appellants) or recovery (i.e., at their pointing
out), as the case may be. This we say so, because in all
seizure memorandums including that of torch, prepared
on three dates i.e., 3.2.1997, 6.2.1997 and 9.2.1997,
there is one common witness, namely, PW-8. Recovery
made on 6.2.1997 is a chance recovery because by then
there was no disclosure statement on record. Notably,
as per evidence on record, accused appellants were on
their way to the police station when they allegedly
pointed out the place where they had assaulted the
deceased before dragging him to the field. In such
circumstances, it is quite unlikely that PW-8 would be
present at the spot to be available as a witness of the
recovery. For this very reason, during cross-
examination, suggestion was given to the investigating
officer (PW-10) that recoveries were bogus, and
documents were prepared at one go while sitting at the
police station. Similarly, PW-8 was cross-examined
about his presence at the time of recovery. PW-8,
initially, responded by stating that he had not
accompanied the police, though he happened to be
present at that time. On further query, PW-8 stated that
the police must have arrived between 11 and 12. Later,
PW-8 stated that the accused were arrested in the
evening of 6.2.1997. This indicates that he is not sure as
to when the recovery took place. Further, distance of
PW-8’s village from Madhkhetla is 2 km. All these
Criminal Appeal No. 1902/2013 Page 30 of 33
circumstances create a serious doubt about the
presence of the witness at the time and place of the
alleged recovery. Besides that, the site plan of the place
from where recovery was made on 6.2.1997 was not
prepared until 9.2.1997. This makes us wonder whether
papers in connection therewith were prepared at one go
as suggested by the defense. Unfortunately, the High
Court did not at all advert to these circumstances and
relied on the disclosure statement/discovery/recovery
without carefully weighing the evidence on record.
CONCLUSION
39. In view of the discussion above, we conclude as
under:
(a) The trial court and the High Court failed to test
the evidence on record to find out whether the
incriminating circumstances were proved
beyond reasonable doubt and whether they were
of definite tendency unerringly pointing towards
the guilt of the accused-appellants.
(b) The circumstance of (i) last seen; (ii) recovery of
a meat bag from near the spot; (iii) accused-
appellants walking on the pathway near Mohan
Singh’s shop in the night; and (iv) accused-
appellants inquiring about the deceased in the
evening of 2.2.1997 are not of a definite tendency
unerringly pointing towards the guilt of the
Criminal Appeal No. 1902/2013 Page 31 of 33
accused-appellants. Circumstance (iii) above,
was not even proved beyond reasonable doubt.
(c) The disclosure statement was not admissible as
it did not lead to discovery. The stone, etc. were
allegedly recovered even before the disclosure
statement was recorded. That apart, neither
Doctor’s (PW-1’s) statement nor forensic report
could connect them with the crime.
(d) In consequence, no case was made out to hold
the appellants guilty. Hence, the appeal deserves
to be allowed.
40. Before parting, we would like to put on record that
the High Court also erred in converting the conviction
from one punishable under Section 302 to Section 304
Part I of IPC only because, according to it, the fatal
injury could be a result of a solitary blow. What it
overlooked was that there were multiple injuries on the
body of the deceased apart from two incised wounds on
the head with underlying fracture of occipital bone of
the skull. In such a scenario, whosoever committed the
crime had clear intention to kill the deceased. Once that
is the position, in a case based on circumstantial
evidence, when no effort is made on the part of the
accused either to take a plea, or lead evidence to show,
that their act would fall in any of the exceptions to
Section 300 IPC, there was no justification at all to alter
the conviction.
Criminal Appeal No. 1902/2013 Page 32 of 33
41. However, since we have held that the prosecution
had failed to establish the chain of incriminating
circumstances, the accused appellants are entitled to be
acquitted of the charges for which they have been tried
and convicted. The appeal is, therefore, allowed. The
impugned order is set aside. The appellants are
acquitted of the charges for which they have been tried
and convicted. They are on bail. They need not
surrender. Their bail bonds stand discharged.
……………………………………….J.
(J.B. Pardiwala)
……………………………………….J.
(Manoj Misra)
New Delhi;
November 28, 2024
Criminal Appeal No. 1902/2013 Page 33 of 33