To a lay man, the above circumstances may appear
irrelevant in assessing credibility/ trustworthiness of a
witness. But to a trained judicial mind it is an important
circumstance in assessing whether a person is a natural
witness, who is aware of relevant facts, or is the one who
has been set up to create evidence. Normally, when a person
is aware about a crime and has knowledge of any
circumstance which, to his understanding, is incriminating
in nature and may be of help to the police, he may, as a
responsible person of the society, provide information to the
police. But where the circumstance, of which one has
knowledge or awareness, in itself is not one which could be
considered incriminating or relevant for investigation of a
crime, there is no likelihood of that person reporting it to
the police. Therefore, the answer to the question as to why,
when and in what circumstances the witness statement
was recorded during investigation becomes an important
tool in assessing the credibility of that witness. The reason
is simple. Because the answer would help in determining
whether the witness is a natural one or has been set up to
create evidence. {Para 41}
42. It is well settled that the role of the investigating
officer is to collect evidence and not to create one. Where
there is no occasion for the investigating officer to record
statement of a person, or for that person to impart
information to the police, yet, the police proceeds to record
his statement without narrating the circumstance in which
it was considered necessary to record his statement, a
serious doubt arises as to whether that witness has been
set up to create evidence.
43. We have no doubt in our mind that an investigating
officer may pick up clues from any statement recorded
during investigation to record statement of another. Such
an exercise is completely bona fide. For example, if after
recording statement of A, the investigating officer comes to
know that B may have knowledge of something relevant, he
would be justified in recording statement of B. But if the
investigating officer straightway records statement of B,
and there is no palpable reason for him to believe that B is
possessed of relevant information, and B has no reason to
impart information on his own to the investigating officer, a
suspicion would arise whether the exercise of recording
statement of B is undertaken just to create evidence. Lack
of explanation in that regard may dent the credibility of B.
44. Ordinarily an investigating officer collects evidence
from witnesses who are either present at the scene of crime
or are likely to be aware of the crime and have information
about it. Evidence may also be collected from persons who,
by virtue of their relationship with the victim or the named
accused, are likely to have relevant information.
Investigation may also reach out to those who may be in
contact with the victim, or the known accused, based on
Call Detail Record (CDR) of the mobile of the victim or the
suspects. Likewise, information may be collected on the
basis of information received through disclosure statement
suffered by the accused. However, where a person is not
even aware that the information which he is possessed of is
incriminating against some person, there is no likelihood of
that person reporting that information to the police. In such
circumstances, what propels the investigating officer to
record his statement becomes important, and failure to
disclose the reason may dent the credibility of that witness
as it may reasonably be inferred that the said witness is one
who has been set up.
45. In the present case, PW-20 i.e., the investigating
officer ducks the question and feigns ignorance as to when
he recorded the statement of PW-4 and PW-18 during
investigation. Further, there is no explanation as to what
prompted him to record statements of PW-4 and PW-18
during investigation. Importantly, PW-20 does not state
that in her disclosure statement the accused had disclosed
about travelling by Taxi from Chamba to Diur and back or
about her stay at the hotel. PW-20 only states that the
accused in her disclosure had stated that she could get the
keys and mobile recovered. Thus, statements of PW-4 and
PW-18 appear to have been recorded only to create
evidence.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 166 of 2019
THE STATE OF HIMACHAL PRADESH VsANCHLA @ CHANCHLA
Author: MANOJ MISRA, J.
Citation: 2026 INSC 1074
1. This appeal impugns the judgment and order of the
High Court1 dated 28.07.2014 whereby the appeal2 of the
respondent-accused was allowed and the order of the trial
court3 dated 07.11.2012, passed in Sessions Trial No. 48
of 2011, convicting and sentencing the respondent, under
Section 302 of the Indian Penal Code, 18604, was set
aside.
1 The High Court of Himachal Pradesh at Shimla
2 Criminal Appeal No.28 of 2013
3 Court of Session, Chamba
4 IPC
Page 2 of 60
Criminal Appeal No. 166 of 2019
Facts
2. On 07.09.2011, Bhagi Ram (PW-1) informed the
police that his daughter, Mithilesh Kumari, deceased No.1
(D-1), had been missing for last 6-7 days, and her house
was lying locked. The report mentioned emission of foul
odour from her house. Upon registration of the report, the
police team entered the house, allegedly after breaking the
lock, and found two dead bodies, one of D-1 and the other
of her minor son, Bhupinder Singh (D-2). Autopsy revealed
that the death was homicidal, due to strangulation, which
might have occurred 5 to 7 days before.
3. Prosecution case was that D-1 was second wife of
Amar Singh. Accused Anchla alias Chanchla (respondent
herein) was born from Amar Singh’s first wife who died
several years ago. After demise of his first wife, Amar Singh
married D-1; in the wedlock, D-2 was born. Both D-1 and
D-2 resided at Diur. Anchla used to stay at Chamba, though
she had been visiting her step-mother (D-1) every 2-3
months. In the evening of 31.08.2011, when PW-1 visited
D-1’s house, he noticed the accused present there. Besides,
D-1 had informed PW-1 that the accused would be staying
Page 3 of 60
Criminal Appeal No. 166 of 2019
overnight with her. Next day, doors of D-1’s house were
found locked. PW-1 thought that D-1 may have left to visit
some place. But when the deceased did not return for 6-7
days, and foul odour started effusing from the house, the
police was informed. Whereafter, police broke open the lock
and found bodies of D-1 and D-2. Based on those events,
Anchla (i.e., the accused-respondent) was the prime
suspect of committing those murders to grab the property
of her father which he had bequeathed to D-2.
4. To support its case, the prosecution, inter alia,
examined a Taxi driver, namely, Vijay (PW-4), who stated
that he had brought the accused from Chamba to Diur in
the evening of 31.08.2011 and late night of that day, had
taken her back to Chamba where she stayed in a hotel. PW-
4 also noticed a bleeding injury on Anchla’s hand. Besides
PW-4, Suresh Kumar (PW-18), a worker in a hotel at
Chamba, was examined to confirm that he saw the accused
at the hotel that night.
5. Further, the case of the prosecution was that after
her arrest, Anchla suffered a disclosure statement; basis
which, a bunch of keys and a mobile of the deceased (D-1),
Page 4 of 60
Criminal Appeal No. 166 of 2019
without SIM, were recovered. Prosecution also claimed to
have recovered an OPD slip indicating that on 01.09.2011
the accused had got sutures put on her hand consequent
to an injury.
6. It was also the case of the prosecution that a
forensic team had visited the house of the deceased and had
seized / collected from there bedsheets, quilt cover,
scrapings from the floor, trunk, etc.
7. Further, according to the prosecution, Call Detail
Record (CDR) of the mobile of the deceased and the accused
were procured.
8. Blood sample of the accused was also obtained.
DNA profile generated from the blood sample of the accused
and dried blood sample collected from the house of the
deceased matched, as per FSL report.
9. FSL report in respect of the broken lock, allegedly
removed from the door of the deceased’s house, and the
bunch of keys, recovered pursuant to the disclosure
statement of the accused, pointed out that the said keys
were operable on that lock.
Page 5 of 60
Criminal Appeal No. 166 of 2019
10. The accused in her statement under Section 313
Code of Criminal Procedure, 19735 denied all the
incriminating circumstances except the following: (a) D-1
and D-2 were her step mother and step brother respectively;
(b) she was arrested on 09.09.2011 and that her blood
sample was taken; and (c) she had suffered an injury on her
hand as it got crushed in the car door while she was
travelling to Mani Mahesh, and it was this injury which she
sutured on 01.09.2011 of which OPD slip was handed over
by her to the police. A defence witness was also examined
by her to show her travel to Mani Mahesh on the fateful day
i.e., 31.08.2011.
Trial Court Findings
11. The Trial Court found the accused-respondent
guilty based on the following circumstances:
(i) D-1 and D-2 died a homicidal death.
(ii) Bodies of D-1 and D-2 were found on 07.09.2011
in their house at Diur, which was found locked
from outside.
5 CrPC
Page 6 of 60
Criminal Appeal No. 166 of 2019
(iii) D-1 was last seen alive at her house in the
evening of 31.08.2011; at that time, the accused
was present there.
(iv) Late evening /night of 31.08.2011/ 01. 09.2011,
PW-4 brought the accused from Diur to Chamba
where the accused checked in a Hotel at about
02.30 AM. At that time accused was carrying a
thumb injury.
(v) Accused’s thumb injury was attended to at a
regional hospital at Chamba on 01.09.2011.
(vi) Accused was arrested on 11.09.2011. Basis her
disclosure statement, the mobile of the deceased
and bunch of keys which operated on the lock
found at the door of the deceased’s house were
recovered.
(vii) DNA profile generated from the blood sample of
the accused matched with the profile generated
from dried blood collected from the room where
the deceased was found dead.
12. Based on above, the Trial Court concluded that the
proven circumstances constituted a chain that unerringly
Page 7 of 60
Criminal Appeal No. 166 of 2019
pointed towards the guilt of the accused and ruled out all
hypothesis consistent with her innocence so as to indicate
that in all human probability it was the accused and no one
else who committed the murder of D-1 and D-2. Trial Court
thus convicted and sentenced the accused-respondent
under Section 302 of IPC.
13. Aggrieved with the order of the Trial Court, the
respondent preferred Criminal Appeal No.28 of 2013 before
the High Court. By the impugned order, the High Court
allowed the appeal.
High Court’s Analysis
14. The High Court noticed that though PW-1 had
deposed that on 31.08.2011 when he had gone to the house
of D-1 he noticed the accused talking to D-2, however, in
his previous statement under Section 161 of CrPC, with
which he was confronted, there was no such disclosure.
Besides, the motive for the crime that Amar Singh had
bequeathed his entire property to D-2 was not proved. The
High Court had also noticed that PW-1 during crossexamination
had stated that out of 4 rooms in her house,
D-1 had given 1 room to PW-1 and his wife. It also noticed
Page 8 of 60
Criminal Appeal No. 166 of 2019
that PW-1’s daughter in law, namely, Kiran i.e., sister-inlaw
of D-1, had informed PW-1 that two persons, namely,
Shokat and Noora, were asking about the properties of D-1
few days before D-1’s death.
15. In addition to above, High Court found the
testimony of PW-4 doubtful because, though he claimed to
have provided first aid to the accused to bandage a bleeding
injury on her hand, he did not notice any blood on his
vehicle. Besides PW-4 admitted that he had not issued any
receipt for hire of his taxi. High Court also discarded the
testimony of PW-18 because no record of Hotel stay was
produced.
16. In respect of breaking of lock, High Court found
that in the testimony of witnesses regarding breaking of the
lock on the door of D-1’s house, it was not specific that the
lock alleged to have been broken and produced in court was
the one found on the latch of the door. Rather, the witness
who identified the lock had deposed that he had noticed the
lock on the handle of the door of the house.
Conclusions of the High Court
Page 9 of 60
Criminal Appeal No. 166 of 2019
17. After analysing the evidence, the High Court
concluded: (a) the motive for the crime was not proved
inasmuch as there was no evidence to substantiate that a
bequest was made by father of the accused in favour of D-
2; (b) the evidence of PW-1 regarding D-1 and the accused
being last seen alive at D-1’s house in the company of D-2
on 31.08.2011 was not convincing, as PW-1’s previous
statement had omitted to make such a disclosure; (c) PW-
1’s credibility was doubtful inasmuch as he chose to remain
silent for 6-7 days even though he resided in close proximity
to D-1’s house and was aware, from the next day itself, that
D-1’s house was lying locked; (d) PW-1’s explanation that
he was under the belief that the deceased may have gone to
visit Mani Mahesh was not reliable because no such
explanation was there in his previous statement; (e) PW-1’s
statement that two persons, namely, Shokat and Noora,
visited his shop at around 06:00 PM and thereafter they
visited the house of the deceased, ought to have been
thoroughly investigated as there could have been
involvement of third parties; (f) PW-4’s statement that he
did not notice any blood stain in his vehicle even though he
Page 10 of 60
Criminal Appeal No. 166 of 2019
provided first aid to a bleeding injury on the hand of the
accused created a doubt about his credibility; (g) the story
that the door of the house of D-1 was found locked, and the
lock had to be broken, is not proved inasmuch as PW-1 in
his deposition had not stated that the lock was found on
the bolt/ latch of the door, rather it was noticed on the door
handle; and (h) DNA profile generated from the blood of the
accused matching with the blood stains scraped from some
article in the house of the deceased was not conclusive to
hold the accused guilty when the presence of the accused
at the house of the deceased on or about the relevant time
was not proved beyond doubt; moreover, the blood of the
accused could have been planted at the site of occurrence
in as much as the accused had provided her blood sample.
Based on the above conclusions, the High Court took the
view that the prosecution had failed to prove the charge of
murder beyond reasonable doubt.
18. Aggrieved with the order of the High Court, the
State is in appeal before us. We have heard learned counsel
for the parties and perused the record.
Submissions on behalf of State-Appellant
Page 11 of 60
Criminal Appeal No. 166 of 2019
19. The submissions on behalf of the State are as
follows:
(a) The High Court had discarded critical pieces of
evidence on conjectures and surmises.
(b) There was no basis for the High Court to hold
that after collecting blood sample from the
accused, blood was spilled in the house of the
deceased to create evidence.
(c) Besides, the blood sample was collected after the
forensic team had already collected incriminating
materials from the crime scene.
(d) The presence of blood of the accused at the crime
scene, coupled with proof that on the fateful
night the accused was carrying a bleeding injury,
is an incriminating circumstance which, in the
absence of any explanation from the accused,
pointed that in all human probability it is the
accused who had committed the crime.
(e) There was no good reason to discard the
testimonies of PW-1, PW-4 and PW-18. PW-1 had
been straight forward in his deposition that the
Page 12 of 60
Criminal Appeal No. 166 of 2019
deceased was in the company of the accused on
31.08.2011, and thereafter the door of the house
of the deceased was found locked. If PW-1 had
not lodged a missing report earlier, it was not a
ground to discard his testimony as he had no
occasion to suspect any foul play. It was only
when he sensed foul odour effusing from the
house that he lodged the report.
(f) The High Court without any basis discarded the
evidence of recovery of keys of the lock on the
basis of disclosure made by the accused. Those
keys conclusively linked the accused to the
crime.
(g) Holding the accused not guilty is perverse as it
is not one of the views possible on the proven
circumstances; therefore, it is a fit case where the
order of the High Court be set aside, and the
order of conviction and sentence passed by the
trial court be restored.
Submissions on behalf of the Respondent-Accused
Page 13 of 60
Criminal Appeal No. 166 of 2019
20. Per contra, on behalf of the respondent-accused, it
was submitted:
(a) The last seen circumstance by its very nature is
a weak piece of evidence and can form the basis
of conviction only when the time gap between the
last seen circumstance and discovery of the body
of the deceased is not much as to rule out third
party involvement. In the instant case, the
deceased, according to the testimony of PW-1,
was last seen in the company of the accused on
31.08.2011, and the body was discovered on
07.09.2011. In such circumstances even if last
seen circumstance is accepted, intervening
factors cannot be ruled out.
(b) The statement of PW-1 that because the door of
the house was found locked since the morning of
01.09.2011 he thought that D-1 may have left to
visit Mani Mahesh, hence report was not lodged,
does not inspire confidence. It is unbelievable
that a widow lady, whose father is residing in the
vicinity, would not inform her father before
Page 14 of 60
Criminal Appeal No. 166 of 2019
leaving the station. In such circumstances, the
High Court was justified in discarding the
testimony of PW-1 as unreliable. In any event
High Court’s conclusion on unreliability of PW-1
is one of the views possible and, therefore,
warrants no interference.
(c) In so far as the evidence of PW-4 and PW-18 is
concerned, it appears that their testimony was
made up to create a chain of circumstances. If
the accused had really hired a taxi to go to Diur
and come back, she would not have stayed at a
Hotel and instead would have returned back to
her home at Chamba. There was no occasion for
her to stay overnight in a hotel at Chamba.
Besides, in absence of any record of her stay in
the hotel, her stay there is not proved beyond
reasonable doubt. The High Court was, therefore,
justified in discarding the testimonies of PW-4
and PW-8.
(d) As far as collection of blood stains from the crime
scene is concerned, firstly, it is not conclusive of
Page 15 of 60
Criminal Appeal No. 166 of 2019
guilt because as per the prosecution case, the
accused had been visiting the house of D-1 in the
past also; secondly, if the investigating agency
was found creating evidence, creation of such
evidence is easy, particularly when the blood
sample of the accused had been collected; and,
thirdly, DNA profiling is not hundred percent
reliable as to be the sole basis of conviction.
(e) The circumstance of seizure of keys on the basis
of disclosure by the accused has been denied by
the accused in her statement recorded under
Section 313 Cr.P.C. Besides, it is inexplicable as
to why would the accused would carry keys of the
house of deceased with her when she could easily
dispose them of at some place. Moreover, there is
no clear evidence that the door of deceased’s
house was found locked by the lock whose key
was allegedly recovered because, as per the
evidence, the lock was found on the door handle
and not on its latch. In fact, the High Court had
noticed this fact to observe that evidence
Page 16 of 60
Criminal Appeal No. 166 of 2019
regarding the lock being on the bolt of the door is
lacking. This falsifies the prosecution story that
the door of the house was noticed locked since
01.09.2011.
(f) There was no evidence to prove any bequest in
favour of D-2, therefore no motive was proved. In
absence of proof of motive, and other
circumstances not being proved beyond
reasonable doubt, the prosecution failed to
elevate its case from the level of suspicion to the
level of proof. Accordingly, the appeal is liable to
be dismissed.
ANALYSIS
21. Before we set out to analyse the evidence in the
context of the rival contentions, we must remind ourselves
that this is an appeal against acquittal, therefore, it would
be apposite to notice the law as to when an order of
acquittal may be interfered with.
Scope of an appeal against acquittal
22. A judgement of acquittal has the obvious
consequence of granting freedom to the accused. This Court
Page 17 of 60
Criminal Appeal No. 166 of 2019
has taken a consistent view that unless the judgment under
appeal is contrary to the evidence or palpably erroneous or
takes a view which could not have been taken by the court
of competent jurisdiction, keeping in view the settled
canons of criminal jurisprudence, this Court is reluctant to
interfere with such judgment of acquittal. Normally, an
appeal against acquittal has always been differentiated
from an appeal against conviction. Whenever there is
perversity of facts and/or law appearing in the judgment,
the appellate court would be within its jurisdiction to
interfere with the judgment of acquittal, otherwise such
interference is not called for. Therefore, if the view taken by
the High Court is one of the views possible, or there appears
no perversity in its reasoning and evaluation of evidence,
merely because another view is possible, the order of
acquittal does not call for interference6.
23. However, there is no embargo on the appellate
court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal is not to
be interfered with because the presumption of innocence of
6 State of Rajasthan V. Shera Ram Alias Vishnu Dutta, (2012) 1 SCC 602, paragraphs 7 and 8
Page 18 of 60
Criminal Appeal No. 166 of 2019
the accused is strengthened by acquittal. The general
principle is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favorable
to the accused should be adopted. The paramount
consideration of the court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon the appellate court
to reappreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any
of the accused really committed any offense or not. The
principle to be followed by the appellate court considering
the appeal against the judgment of acquittal is to interfere
only where there are compelling and substantial reasons for
doing so. If the impugned judgment is unreasonable,
particularly where relevant and convincing evidence(s) have
been unjustifiably discarded, it becomes a compelling
reason for interference7.
7 State of M.P. versus Bacchudas alias Balram and others, (2007) 9 SCC 135, paragraph 9
Page 19 of 60
Criminal Appeal No. 166 of 2019
24. In Rajesh Prasad v. State of Bihar and
another8, a three-Judge Bench of this Court after
considering a number of decisions summarised the
circumstances under which this court may entertain an
appeal from an order of acquittal, and also when it may
interfere with an order of acquittal. The relevant paragraphs
are reproduced below:
“31.1. Ordinarily, this court is cautious in interfering with an
order of acquittal, especially when the order of acquittal has
been confirmed up to the High Court. It is only in rarest of rare
cases, where the High Court, on an absolutely wrong process of
reasoning and a legally erroneous and perverse approach to the
facts of the case, ignoring some of the most vital facts, has
acquitted the accused, that the same may be reversed by this
Court, exercising jurisdiction under Article 136 of the
Constitution. Such fetters on the right to entertain an appeal are
prompted by the reluctance to expose a person, who has been
acquitted by a competent court of a criminal charge, to the
anxiety and tension of a further examination of the case, even
though it is held by a superior court. An appeal cannot be
entertained against an order of equity which has, after recording
valid and weighty reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal.
31.2. However, this court has on certain occasions, set aside the
order of acquittal passed by a High Court. The circumstances
under which this Court may entertain an appeal against an
order of acquittal and pass an order of conviction, may be
summarized as follows:
31.2.1. Where the approach or reasoning of the High Court is
perverse:
(a) Where incontrovertible evidence has been rejected by the
High Court based on suspicion and surmises, which are rather
unrealistic. For example, where direct, unanimous accounts of
the eyewitnesses, were discounted without cogent reasoning.
(b) Where the intrinsic merits of the testimony of relatives, living
in the same house as the victim, were discounted on the ground
that they were “interested” witnesses.
(c) Where testimony of witnesses had been disbelieved by the
High Court, on an unrealistic conjecture of personal motive on
the part of witnesses to implicate the accused, when in fact, the
witnesses had no axe to grind in the said matter.
8 (2022) 3 SCC 471
Page 20 of 60
Criminal Appeal No. 166 of 2019
(d) Where dying declaration of the deceased victim was rejected
by the High Court on an irrelevant ground that they did not
explain the injury found on one of the persons present at the site
of occurrence of the crime.
(e) Where the High Court applied an unrealistic standard of
“implicit proof” rather than that of “proof beyond reasonable
doubt” and therefore evaluated the evidence in a flawed manner.
(f) Where the High Court rejected circumstantial evidence, based
on an exaggerated and capricious theory, which were beyond the
plea of the accused; or where acquittal rests merely in
exaggerated devotion to the rule of benefit of doubt in favor of
the accused.
(g) Where the High Court acquitted the accused on the ground
that he had no adequate motive to commit the offence, although,
in the said case, there was strong direct evidence establishing
the guilt of the accused, thereby making it unnecessary on the
part of the prosecution to establish “motive”.
31.2.2. Where acquittal would result in gross miscarriage of
justice:
(a) where the findings of the High Court, disconnecting the
accused persons with the crime, were based on a perfunctory
consideration of evidence, or based on extenuating
circumstances which were purely based in imagination and
fantasy.
(b) Where the accused had been acquitted on ground of delay in
conducting trial, which delay was attributable not to the
tardiness or indifference of the prosecuting agencies, but to the
conduct of the accused himself; or where accused had been
acquitted on ground of delay in conducting trial relating to an
offence which is not of a trivial nature.
25. The legal position that emerges from various
decisions of this Court is that though there are no fetters
on the power of the appellate court to interfere with an order
of acquittal, the appellate court must not ordinarily
interfere with the order of acquittal if it is one of the two
views possible on overall consideration/ appreciation of
evidence. However, where cogent evidence is discarded on
non-sustainable grounds, or undue emphasis is laid on
Page 21 of 60
Criminal Appeal No. 166 of 2019
grounds which are not so relevant in the context of other
proven facts, the appellate court can always come to its own
conclusion based on the evidence on record.
26. Bearing the aforesaid legal principles in mind we
shall now consider the prosecution evidence to assess
whether it had succeeded to bring home the charge against
the accused respondent.
Law on Circumstantial Evidence
27. Before we proceed to closely scrutinize the evidence
we must remind ourselves that the prosecution case rests
on circumstantial evidence. It is well settled that where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Besides, the circumstances
should be of a conclusive nature 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 circumstances so far complete as not to leave any
reasonable ground for a conclusion consistent with the
Page 22 of 60
Criminal Appeal No. 166 of 2019
innocence of the accused and it must be such as to show
that within all human probability the act must have been
committed by the accused9.
Circumstances Relied by the Prosecution
28. In the present case, the circumstances relied by the
prosecution to prove the accused guilty are:
(a) On 31.08.2011, the accused was seen in the
house of D-1.
(b) On 01.09.2011, the door of the house of D-1
was found locked from outside.
(c) D-1’s father tried to contact the deceased on
her mobile, but could not succeed as her
mobile was found switched off.
(d) On 07.09.2011 when foul odour effused from
D-1’s house police was informed.
(e) Based on this information, the lock on the
door of the house was broken to gain entry to
the house.
(f) On entry, dead bodies of D-1 and D-2 were
found.
9 Hanumant v. State of Madhya Pradesh, (1952) 2 SCC 71: 1952 SCC OnLine SC 75; followed in Sharad
Birdhichand Sarda vs. State of Maharashtra; (1984) 4 SCC 116
Page 23 of 60
Criminal Appeal No. 166 of 2019
(g) Autopsy revealed that death was homicidal,
caused by strangulation 5 to 7 days before.
(h) On 31.08.2011, the accused had hired a taxi
from Chamba taxi stand, at about 05:15 PM,
to come to Diur i.e., the place where the
deceased resided. The taxi driver dropped her
at Diur, at about 07:50 PM. Thereafter, the
accused travelled back to Chamba from Diur,
post-midnight, at 12:15 AM, and was dropped
at a hotel in Chamba at about 02:30 AM.
(i) At the time when the accused boarded the taxi
from Diur to Chamba she had a bleeding
injury on her left thumb.
(j) On 10.09.2011, the accused was arrested.
Based on her disclosure, mobile of the
deceased, with no SIM, and a bunch of keys,
alleged to have been used to lock the door of
the house of D-1, were recovered. Besides an
OPD prescription slip was collected from the
accused which disclosed that she got her left
thumb treated i.e., sutured on 01.09.2011.
Page 24 of 60
Criminal Appeal No. 166 of 2019
(k) Forensic team collected blanket, druggets,
pillow cover, bedsheets, towel, quilt cover and
floor scrape as well as trunk scrape, etc. for
forensic analysis.
(l) On 11.09.2011, the accused was medically
examined and it was found that she had
injury on her left thumb.
(m) On 11.09.2011, accused’s blood sample was
taken.
(n) Forensic reports indicated that the DNA
profile of the blood collected from the accused
matched with the blood stained scrape
collected from the house of D-1. Besides, few
keys in that bunch of keys recovered on the
basis of disclosure made by the accused
operated on the lock seized from the door of
the house of the deceased.
(o) The accused had motive to commit the
murder of D-1 and D-2 because accused’s
father had bequeathed his property to D-2,
accused’s step-brother.
Page 25 of 60
Criminal Appeal No. 166 of 2019
29. We shall now consider whether the above
circumstances were proved beyond reasonable doubt? If so,
whether they were of conclusive nature and tendency? And
whether they constituted a chain so far complete as to
exclude all hypothesis save and except the one pointing
towards the guilt of the accused?
D-1 & D-2 died a homicidal death
30. To prove the charge of murder, first it has to be
proved that the deceased died a homicidal death. Here, PW-
7, i.e., the doctor, who conducted the autopsy of the bodies
of D-1 and D-2 not only proved the autopsy reports but also
substantiated that death of the two deceased was a
consequence of asphyxia due to antemortem strangulation.
There appears no reason to doubt the doctor’s statement
that the two deceased died a homicidal death.
Duration of death before Autopsy
31. However, what is important is that autopsy was
conducted on 08.09.2011 and in the opinion of the doctor,
the death had occurred any time between 5-7 days before.
In such circumstances, the possibility of death occurring
even after 01.09.2011 is not ruled out.
Page 26 of 60
Criminal Appeal No. 166 of 2019
Whether D-1 and D-2 were last seen alive with the
Accused on 31.08.2011
32. The last seen circumstance is the core of the
prosecution case. The sole witness of the said circumstance
is PW-1, who is father of D-1 and maternal grandfather of
D-2. PW-1’s statement is that including D-1 he had five
daughters and one son. Two of his daughters had expired
earlier. D-1 was his eldest daughter. She was married to
Amar Singh 15 years ago. Amar Singh died after six years
of marriage with her. D-1 was Amar Singh’s second wife.
His first wife Achhri Devi had died earlier leaving five
daughters including the accused. D-2 was the only son of
Amar Singh, who was born from D-1. All daughters of
Achhri Devi used to visit D-1. However, the accused used to
visit more often i.e., once in one or two months. PW-1
deposed that after retiring from service, he had been
running a shop in the village near the house of D-1. He
stated that on 31.08.2011, one Shokat and Noora, both
Kashmiris, had come to his shop at around 06:00 PM to
recharge their mobile. Thereafter, they went to the house of
D-1, and left about half an hour later. However, later that
Page 27 of 60
Criminal Appeal No. 166 of 2019
evening when he had gone to the house of D-1 to enquire
as to who would be staying with her in the night, he was
informed by D-1 that the accused would be staying with her
in the night. PW-1 added that there (i.e., House of D-1) he
saw the accused talking to D-2. PW-1 stated that that night
he slept at his shop. Next day, he found all doors of D-1’s
house locked. Thereafter, he tried to contact D-1 on her
mobile, but the mobile was switched off. Thinking that D-1
may have gone to ‘Mani Mahesh’ along with the accused, he
waited for her to return. But, after 6-7 days, when he
sensed foul odour effusing from D-1’s house, he informed
the police on 07.09.2011. Whereafter, the police broke the
lock on the door of the house to enter the house. There they
discovered bodies of D-1 and D-2. PW-1 added that since
his son-in-law (i.e., Amar Singh) had bequeathed his entire
property to D-2 (i.e., son of D-1), accused committed the
murder so that the property could revert to the accused.
33. During cross-examination, PW-1 admitted that
there were four rooms in D-1’s house, and D-1 had given
one room to PW-1 and his wife. He also admitted that Kiran
(i.e., PW-1’s daughter-in-law) had informed him that Shokat
Page 28 of 60
Criminal Appeal No. 166 of 2019
and Noora had been enquiring about the properties of D-1.
He further admitted that entire village knew that D-1 and
D-2 used to live alone in their house.
34. Further, during cross-examination, PW-1 admitted
that when he went to D-1’s house on 31.08.2011, between
06:30 PM and 07:00 PM, he had not spoken to the accused.
At that stage, PW-1 was confronted with an omission in his
previous statement under Section 161 Cr.P.C. where he had
not disclosed noticing the accused at D-1’s house talking to
D-2. Besides, during cross examination, PW-1 admitted
that he had not disclosed to the police the motive for the
crime. However, he denied the suggestion that he had not
seen the accused in the house of the deceased on
31.08.2011.
35. What is clear from PW-1’s deposition is that on
31.08.2011 he had not interacted with the accused.
Besides, his statement that he saw the accused talking to
D-2 at D-1’s house is an improvement on his previous
statement where he had omitted to make any such
disclosure. What is also important is that in his previous
statement he had disclosed that from outside of D-1’s house
Page 29 of 60
Criminal Appeal No. 166 of 2019
he had enquired from D-1 as to who would be staying with
her that night and that D-1 had responded from inside the
house about the accused staying with her that night. The
discrepancy between his previous statement and deposition
in Court indicates that PW-1 has improved upon his earlier
statement. In our view, therefore, on the sole basis of PW-
1’s testimony it would be unsafe to hold that the accused
was with the deceased in the evening of 31.08.2011. In such
circumstances, we would have to look at other evidences for
corroboration. The other evidence which the prosecution
has produced to show the presence of the accused at Diur
in the evening of 31.08.2011 comes from PW-4, a taxi
driver. PW-18, a worker at a Hotel in Chamba, has been
produced to corroborate PW-4. We shall now consider their
testimonies.
Circumstance of accused travelling from Chamba to
Diur and back to Chamba on 31.08.2011
36. PW-4 deposed that he runs a taxi. On 31.08.2011,
at about 05:15 PM, the accused hired his taxi to visit Diur.
He took the accused from Chamba to Diur where he
reached at about 07:30 PM. The accused had asked him to
Page 30 of 60
Criminal Appeal No. 166 of 2019
wait as she had to return; therefore, he waited. According
to PW-4, the deceased came back at around 00:15 hrs., that
is post-midnight of the intervening night of 31.08.2011 and
01.09.2011. Thereafter, PW-4 took her to Chamba and
dropped her at a hotel there at about 02:30 AM. PW-4 stated
that when the accused was boarding his taxi for her journey
back to Chamba, he noticed a bleeding wound on her left
thumb for which he provided first aid to her.
37. What is important to note is that PW-4 did not
disclose that he parked his car next to D-1’s house or that
he could see the accused entering and exiting D-1’s house.
He also did not state that he saw the accused with D-1 or
D-2. His testimony is basically about travel from Chamba
to Diur and back. However, if his testimony is accepted, it
provides a vital link to the chain of circumstances.
38. PW-18, a worker at a hotel in Chamba, deposed
that in the intervening night of 31.08.2011 and 01.09.2011,
a man had come to ask for accommodation in the hotel, and
thereafter he brought a lady. The said lady is none other
than the accused in the dock.
Page 31 of 60
Criminal Appeal No. 166 of 2019
39. If we accept the testimonies of PW-4 and PW-18,
the prosecution story that on 31.08.2011 the accused was
at Diur would stand substantiated and it lends assurance
to PW-1’s testimony. Besides, it explains the presence of
blood of the accused at the scene of crime.
PW-4 & PW-18 are not trustworthy
40. Whether the testimonies of PW-4 and PW-8 are to
be accepted depends on their credibility/ trustworthiness.
In our view, there are certain circumstances which dent
their credibility. First, there is no indication in the
testimony of the investigating officer (PW-20) as to what
prompted him to record statement of PW-4 and PW-18.
Second, PW-20 despite repeated questions did not tell the
date when statements of PW-4 and PW-18 were recorded.
How those two circumstances are relevant to doubt the
credibility of PW-4 and PW-18 is discussed below.
41. To a lay man, the above circumstances may appear
irrelevant in assessing credibility/ trustworthiness of a
witness. But to a trained judicial mind it is an important
circumstance in assessing whether a person is a natural
witness, who is aware of relevant facts, or is the one who
has been set up to create evidence. Normally, when a person
is aware about a crime and has knowledge of any
circumstance which, to his understanding, is incriminating
in nature and may be of help to the police, he may, as a
responsible person of the society, provide information to the
police. But where the circumstance, of which one has
knowledge or awareness, in itself is not one which could be
considered incriminating or relevant for investigation of a
crime, there is no likelihood of that person reporting it to
the police. Therefore, the answer to the question as to why,
when and in what circumstances the witness statement
was recorded during investigation becomes an important
tool in assessing the credibility of that witness. The reason
is simple. Because the answer would help in determining
whether the witness is a natural one or has been set up to
create evidence.
42. It is well settled that the role of the investigating
officer is to collect evidence and not to create one. Where
there is no occasion for the investigating officer to record
statement of a person, or for that person to impart
information to the police, yet, the police proceeds to record
his statement without narrating the circumstance in which
it was considered necessary to record his statement, a
serious doubt arises as to whether that witness has been
set up to create evidence.
43. We have no doubt in our mind that an investigating
officer may pick up clues from any statement recorded
during investigation to record statement of another. Such
an exercise is completely bona fide. For example, if after
recording statement of A, the investigating officer comes to
know that B may have knowledge of something relevant, he
would be justified in recording statement of B. But if the
investigating officer straightway records statement of B,
and there is no palpable reason for him to believe that B is
possessed of relevant information, and B has no reason to
impart information on his own to the investigating officer, a
suspicion would arise whether the exercise of recording
statement of B is undertaken just to create evidence. Lack
of explanation in that regard may dent the credibility of B.
44. Ordinarily an investigating officer collects evidence
from witnesses who are either present at the scene of crime
or are likely to be aware of the crime and have information
about it. Evidence may also be collected from persons who,
by virtue of their relationship with the victim or the named
accused, are likely to have relevant information.
Investigation may also reach out to those who may be in
contact with the victim, or the known accused, based on
Call Detail Record (CDR) of the mobile of the victim or the
suspects. Likewise, information may be collected on the
basis of information received through disclosure statement
suffered by the accused. However, where a person is not
even aware that the information which he is possessed of is
incriminating against some person, there is no likelihood of
that person reporting that information to the police. In such
circumstances, what propels the investigating officer to
record his statement becomes important, and failure to
disclose the reason may dent the credibility of that witness
as it may reasonably be inferred that the said witness is one
who has been set up.
45. In the present case, PW-20 i.e., the investigating
officer ducks the question and feigns ignorance as to when
he recorded the statement of PW-4 and PW-18 during
investigation. Further, there is no explanation as to what
prompted him to record statements of PW-4 and PW-18
during investigation. Importantly, PW-20 does not state
that in her disclosure statement the accused had disclosed
about travelling by Taxi from Chamba to Diur and back or
about her stay at the hotel. PW-20 only states that the
accused in her disclosure had stated that she could get the
keys and mobile recovered. Thus, statements of PW-4 and
PW-18 appear to have been recorded only to create
evidence.
46. Importantly, PW-1 does not state that he saw the
accused coming to the house of the deceased in a taxi.
Therefore, what prompted the investigating officer to record
the statement of PW-4 is a mystery. Possibility of PW-4 on
his own going to the police and getting his statement
recorded is remote because travelling in a taxi, or staying in
a hotel, by itself is not an incriminating circumstance as to
disturb a person and prompt him to report it to the police.
Therefore, what prompted the investigating officer to record
statements of PW-4 and PW-8 assumes importance, and
lack of disclosure/ explanation in that regard, in our view,
is sufficient to consider them as witnesses set up to create
evidence for constituting a chain of circumstances.
47. The High Court had doubted PW-4’s testimony for
a different reason. According to the High Court PW-4,
though spoke about noticing a bleeding thumb injury on
the hand of the accused and of providing first aid to her,
saw no spilled blood on his vehicle. High Court was of the
view that if the accused had a bleeding injury which
allegedly spilled blood at the scene of crime, and PW-4 also
noticed blood oozing out, a drop or two of blood falling
inside the vehicle was likely. In our view, though this by
itself is not sufficient to discard PW-4, it might be an added
reason to doubt his testimony.
48. In addition to above, there is another reason to
doubt the testimony of PW-4, which is, if the accused had
hired the taxi for her journey from Chamba to Diur, there
was no need for her to stay overnight in a hotel at Chamba.
Instead, she would come back to her home at Chamba.
49. Insofar as PW-18 is concerned, he candidly
admitted that record of accused’s stay at that hotel was not
handed over to the police. Lack of record of her stay
seriously dents the credibility of his statement because it is
a matter of common knowledge that all hotels /Sarai, in
ordinary course of business, are required to maintain guest
record/ register. Absence of such corroborative evidence of
stay, seriously impairs the credibility of PW-18.
50. For all the reasons above, we are of the view that
statements of PW-4 and PW-18 are not trustworthy and
unworthy to serve as corroborative piece of evidence of the
last seen circumstance narrated by PW-1.
Lapse in collecting tower location of mobile(s) while
obtaining CDR
51. During investigation, the investigating officer was
apprised of mobile numbers of the deceased Mithilesh
Kumari (D-1) and the accused respondent. PW-19 was
produced to prove the CDR of one of the mobiles, though
both CDRs were part of police papers collected during
investigation. However, interestingly, the CDRs do not
disclose tower location of the concerned mobiles which
could have helped in pin-pointing as to whether the two
mobiles at the relevant time were in close proximity of each
other, and whether D-1’s mobile had moved to the place of
residence of the accused from where it was allegedly
recovered. Non-collection of tower location of the two
mobiles is a serious investigational lapse in the facts of the
case.
52. Further, strangely, the CDR of D-1’s mobile was
not even exhibited. Interestingly, PW-20 (i.e., the
investigating officer) does not even disclose whether D-1’s
mobile was operative or not after 31.08.2011 as per its
CDR.
53. In our view, CDRs of the two mobiles with corresponding tower locations would have been critical in revealing:
a. whether the accused’s mobile at the relevant
time was near the location where the dead
bodies of the two deceased were found; and
b. whether D-1’s mobile was active any time
after 31.08.2011; if yes, whether she received
any call after 31.08.2011; if yes, from what
location.
54. The importance of clarity on the aforesaid
questions cannot be undermined as they had the potential
to either corroborate or demolish the prosecution story.
Because if the mobile of the deceased was operative after
31.08.2011, PW-1’s statement that it was found switched
off would have been negated. Besides, its tower location
would have indicated where the person in possession of that
mobile was located. This was crucial because the
prosecution story hinges on the circumstance that the
deceased and the accused were together on 31.08.2011.
Therefore, if the tower location of the two mobiles had
disclosed that they were not in close proximity to each other
on the fateful day, some explanation would have been
required as to why it was so, when, according to the
prosecution, owners of those two mobiles were together on
the fateful day. Assuming that the accused may not have
carried her mobile to the scene of crime, tower location of
D-1’s mobile could have reflected upon the truth of the
prosecution story. Here there is no explanation by the
prosecution as to why the tower location was not collected.
In our view, lack of information in that regard is a serious
investigational lapse.
55. Besides, there is another reason to doubt the
testimony of PW-1 on the last seen circumstance, which is,
that he remained silent for 6-7 days. According to him, he
found the door of the house locked since the morning of
01.09.2011. He kept quiet for 6-7 days because he felt that
his daughter may have gone to visit ‘Mani Mahesh’. Was
there a plan to go there? Was a taxi already booked? Did
she plan to go by bus? At what time does the bus leave?
These are few questions on which there is no investigation
to test the correctness of his statement. Therefore, PW-1’s
explanation for the delay in reporting about his daughter
(D-1) and grandson (D-2) going missing does not inspire
confidence. Besides, if PW-1 had a shop in the vicinity, as
was his admission, and the deceased had provided a room
to PW-1 and his wife in the house where she resided, as
would appear from PW-1’s statement during cross
examination, the situation gets worse. It creates an
impression that PW-1 is either suppressing some vital
information or telling a lie.
56. Above all, probability of death occurring later than
31.08.2011/01.09.2011 night is not ruled by the autopsy
Page 41 of 60
Criminal Appeal No. 166 of 2019
report. Therefore, when we consider PW-1’s testimony in
conjunction with (a) the medical evidence; (b) the lapse on
the part of investigating agency in collecting tower
location(s) of the mobiles of D-1 and the accused on or
about the relevant time; (c) the improvement in his
testimony from his previous statement about noticing the
accused talking to D-2 at D-1’s house; (d) his admission,
during cross-examination, that he was provided a room in
the house by D-1; and (e) the delay in reporting the matter
to the police despite staying in the vicinity, a serious doubt
arises about the prosecution story that the accused had
come to D-1’s house in the evening of 31.08.2011. And
when we consider it in conjunction with the testimony of
PW-4 and PW-18, the prosecution case appears contrived.
In such circumstances, the view taken by the High Court
that PW-1 is not reliable cannot be faulted.
57. In the light of the analysis above, we are of the
considered view that the prosecution has not been
successful in proving beyond reasonable doubt that the
deceased was last seen alive with the accused in the evening
of 31.08.2011. Besides, the testimony of PW-4 and PW-18
Page 42 of 60
Criminal Appeal No. 166 of 2019
regarding travel of the accused to Diur from Chamba and
back to Chamba in the night of 31.08.2011, and her stay at
a Hotel in Chamba, is neither trustworthy nor reliable.
Circumstance of lock breaking and recovery of keys and
mobile of the deceased
Lock Breaking & Recovery of Keys
58. The circumstance of recovery of key(s) at the
instance of the accused would be relevant only if it is
established beyond reasonable doubt that the lock which
had to be broken to gain access to the room where the
bodies were lying was the one which was seized and sent to
the laboratory to ascertain whether those keys operated on
that lock.
59. Thus, the prosecution had to prove (a) that the door
of D-1’s house was locked, and (b) it was locked by the same
lock of which keys were discovered at the instance of the
accused.
60. In this regard, PW-1, who has been examined apart
from others, though states that the door of D-1’s house was
locked, is neither a witness to the seizure memorandum of
Page 43 of 60
Criminal Appeal No. 166 of 2019
the lock nor he describes the lock with which the door was
locked.
61. PW-3 (Vias Dev) along with Baldev are witnesses of
the seizure of the lock, and have allegedly signed the seizure
memorandum i.e., Ext. PW-3/A. The seizure memo reads
thus:
“Today, i.e. on 07.09.2011, in the presence of
undersigned witnesses, at the spot at Bhinga
(Diur), room of the residential house of Mithilesh
Kumari, where she along with her son
Bhupinder was sleeping, was found locked from
outside, which was opened after breaking the
lock. The said broken lock bearing inscription
“Godly Fighter 65 mm” was lifted from the spot
and made into a cloth parcel which was sealed
with three seals bearing inscription ‘A’. Sample
of the seal was taken on a separate piece of cloth
and the seal after having been put to use was
handed over to witness Vias Dev. Parcel
containing lock was taken into police possession
for the purpose of evidence vide memo. Memo
was prepared at the spot to which witnesses
appended their respective signatures.”
62. Although PW-3 proved the seizure memorandum
and identified the lock lifted from the spot, which was
marked Exhibit P-28, during cross-examination, he stated:
“When I reached the spot, the lock was on the
handle of the door.”
It is, therefore, clear that the lock was not noticed by PW-3
on the latch of the door rather he saw it on the handle of
Page 44 of 60
Criminal Appeal No. 166 of 2019
the door. PW-3 does not say that he ever saw that lock on
the latch which bolted the door.
63. Besides PW-3, there are two more witnesses of the
circumstance. One is PW-15 i.e., SI Darshan Singh, and the
other is investigating officer PW-20. Though PW-15 makes
a statement that the room was lying locked and the lock
was broken in his presence, he does not identify the lock
which was produced in court to prove that it was that very
lock which was hanging on the latch of the door.
64. Interestingly, PW-20, the investigating officer is not
even a witness of breaking of the lock. PW-20 states as
under:
“By the time, I had reached the spot, the lock on
the main door had already been broken open by
the police team present at the spot.”
65. Having regard to the above evidence, we are of the
view that it was not established beyond reasonable doubt
that the lock which was broken to gain entry to D-1’s house
and the lock which was sent for forensic examination and
produced in Court, was one and the same. We say so
because PW-3 who identified the lock in court did not say
that it locked the latch that shut the door of D-1’s house,
Page 45 of 60
Criminal Appeal No. 166 of 2019
and PW-15, who is witness to the lock breaking process,
does not identify the lock produced in Court as the one
which locked the door. Once that is the position, the
recovery of keys at the instance of the accused-respondent
is rendered inconsequential. More so, when the recovery
has been denied by the accused in her statement under
Section 313 CrPC. The High Court was therefore justified in
concluding that in the absence of clear and cogent evidence,
that it was this very lock that had locked the latch which
shut the door, and had to be broken to gain access to D-1’s
house, the discovery of keys is inconsequential.
66. Besides above, it does not appeal to reason as to
why the accused would take away the keys of the lock with
her, or for that matter why would she even lock the door,
when she resided at another place. This recovery, therefore,
appears artificial and does not inspire confidence.
Recovery of Mobile
67. The other incriminating circumstance is regarding
the recovery of mobile of the deceased from the house of the
accused. This circumstance is denied by the accused. In
our view, it has been rendered doubtful for multiple
Page 46 of 60
Criminal Appeal No. 166 of 2019
reasons. Firstly, the investigating officer has not got CDR of
the said mobile exhibited in evidence. Further, the
investigating officer (PW-20) is silent on as to whether (a)
mobile was switched off or not on 01.09.2011; if not,
whether it received any call on 01.09.2011, or later; and (b)
if it had received a call, where it was located. Secondly, a
mobile can always be planted by picking it from the scene
of crime and putting it at the place from where recovery is
to be shown. Therefore, to remove all doubts, the
investigating officer ought to have placed the complete CDR
of the mobile along with its tower location. Thirdly, why
would the accused carry the mobile from the house of the
deceased to her own house when she has her own mobile.
Rather, she would carry other valuables from the
deceased’s house. At this stage, we may observe that there
is no evidence that she carried any valuables from the
house of the deceased to her own house.
68. In such circumstances, firstly, recovery of mobile
from the accused’s house is doubtful and, secondly, in
absence of the complete CDR of that mobile along with its
Page 47 of 60
Criminal Appeal No. 166 of 2019
tower location, its incriminatory value, if any, is seriously
dented.
Circumstance of DNA profile of the bloodstain found at
the scene of crime matching with that of the accused
69. At this stage, we shall consider another
incriminating circumstance which the prosecution seeks to
rely upon. According to the prosecution, (a) the scrape of
cabinet/ trunk containing dried blood was forensically
matched with DNA profile generated from the blood sample
obtained from the accused; and (b) the DNA profile of the
two had matched indicating that the accused was present
in the house of D-1 with a bleeding injury and, therefore,
coupled with the fact that the accused had got herself
treated for that bleeding injury on 01.09.2011, it could
safely be concluded that the accused was present at the
scene of crime on 31.08.2011.
70. The High Court discarded this circumstance by
observing that blood of the accused may have been planted
after collecting the blood sample from the accused. The
learned counsel for the appellant submitted that this
Page 48 of 60
Criminal Appeal No. 166 of 2019
conclusion of the High Court is without any basis and is
perverse.
71. In this context, we would have to consider as to
when the scene of crime was discovered; when the samples
were collected from the scene of crime; when was the
accused arrested; when was the blood sample of the
accused collected; and when was the sample sent to the
forensic laboratory for analysis.
72. Before we examine and evaluate the evidence on
the aforesaid aspects, it may be put on record that except
for one stained material, the other bloodstains had
disintegrated to an extent that it was not possible to
generate the DNA profile. As to why the other blood-stained
material lifted from the spot, such as quilt cover, pillow
cover, etc., could not generate DNA profile whereas one
found over the trunk/ cabinet could generate, when the
blood seems to have oozed out on the same day i.e., the day
of murder, is an aspect which we must bear in mind while
evaluating the evidence. Probably the High Court had this
in mind to hold that the sample sent for forensic
Page 49 of 60
Criminal Appeal No. 166 of 2019
examination might have been planted after collecting the
blood sample from the accused.
73. Admittedly, the scene of crime was first discovered
on 07.09.2011. The testimony of the investigating officer
(PW-20) discloses that he was a part of the FSL team which
had lifted samples of blood from different points in the room
where the deceased had been murdered. He states that the
FSL team had visited on 10.09.2011 and had taken parts of
mattresses, pillow cover, drugget and bedsheet into
possession. A single bedsheet was also taken into
possession. A cloth cover lying over a trunk was also taken
into possession by the team. He stated that all the aforesaid
articles were sealed in a cloth parcel. PW-20 also states that
the FSL team had taken photographs of palm prints of the
accused and had also sent them to fingerprint bureau
Shimla for comparison. However, there appears no record
of palm prints report. There is also no explanation as to why
it was not produced. Interestingly, none of the members of
the forensic team which collected the articles was
examined. However, we do not propose to draw adverse
Page 50 of 60
Criminal Appeal No. 166 of 2019
inference on that count as there is not much crossexamination
regarding it.
74. The arrest memo of the accused reflects that she
was arrested on 10.09.2011. The accused, however, claims
in her statement under Section 313 CrPC that she was
arrested on 09.09.2011. Interestingly, PW-20 in his
deposition states that the accused was arrested on
11.09.2011, which appears to be at variance with the date
mentioned in the arrest memo. However, the blood sample
of the accused was taken on 11.09.2011. In such
circumstances, the date on which FSL team collected the
blood-stained material from the scene of crime and the date
on which those materials were sent for forensic examination
including the date on which those articles were received in
the forensic laboratory assume importance.
75. PW-10, the Head Constable, deposed that on
07.09.2011, a parcel allegedly carrying a broken lock with
seal was deposited. On 10.09.2011, multiple parcels
carrying various bloodstained articles collected from the
scene of crime were deposited along with the seal. On
11.09.2011, the salwar suit worn by the accused at the time
Page 51 of 60
Criminal Appeal No. 166 of 2019
of occurrence was also deposited along with the LG mobile
and a bunch of keys recovered from the house of the
accused. He states that on 12.09.2011, the blood sample of
the accused was also deposited. On 12.09.2011, a parcel
containing the viscera of D-1 and D-2 was deposited. On
13.09.2011, he sent parcels containing lock and keys to
RFSL Gutkar. On the same date i.e., on 13.09.2011, he
forwarded blood sample of the accused along with five
parcels deposited on 12.09.2011 to RFSL Dharamshala.
76. PW-11 to whom PW-10 handed over the parcels for
carrying it to the laboratories concerned, stated that on
13.09.2011, PW-10 had handed over five parcels and an
envelope to him, and those articles were deposited at FSL
Junga on 14.09.2011. He states that on 19.09.2011, he had
deposited two envelopes in the office of the Finger Printing
Bureau at Bharari. On 20.09.2011, he deposited two
parcels carrying lock and keys at RFSL Gutkar. PW-11’s
statement is extracted below:
“My statement had been recorded by the police.
I had got recorded in my statement that I had
come back from FSL Junga because documents
had not been signed by the SP and thereupon
again proceeded to Shimla on 19.09.2011
(confronted with statement Exhibit D-3 wherein
it is not so recorded).”
Page 52 of 60
Criminal Appeal No. 166 of 2019
77. What is clear from above is that the articles were
dispatched to the FSL laboratory after the blood was
collected from the accused. Observations in the FSL report
dated 21.03.2012 are as under:
“(i) In Exhibits P-2 (dried blood scratched from
trunk), P-4 (cotton thread containing blood lifted
from trunk), P-5 (blood sample of accused
Anchla Devi) and P-6 (blood sample of accused
Anchla Devi on blotting paper); good quality DNA
was extracted and it was possible to amplify it at
all the fifteen Autosomal STR loci and
Amelogenin with the AmpF/STR Identifiler Plus
PCR Amplification Kit.
(ii) Highly degraded DNA was extracted from
Exhibit P-1 (piece of mattress having blood
stains) and P-3 (dried blood scratched from floor)
and it was not possible to amplify these despite
repeated attempts.
(iii) The DNA profile obtained from Exhibits P-5
(blood sample of accused Anchla Devi) and P-6
(blood sample of accused Anchla Devi on blotting
paper) completely matches with the DNA profile
obtained from Exhibits P-2 (dried blood
scratched from trunk) and P-4 (cotton thread
containing blood lifted from trunk).
Conclusion:
On the basis of the above analysis performed on
the exhibits, it is concluded that:-
The DNA profile obtained from exhibits P-5 and
P-6 (liquid and dried blood samples of the
accused Anchla Devi) completely matches with
the DNA profile obtained from exhibits P-2
(source: dried blood scratched from trunk) and
P-4 (source: cotton thread containing blood lifted
from trunk).”
Page 53 of 60
Criminal Appeal No. 166 of 2019
78. What is surprising is that all samples were found
to have disintegrated save and except the scrape from the
cabinet and the one lifted from the cabinet by cotton thread.
Interestingly the control sample from the cabinet was not
sent for forensic examination. Besides, if blood stains on
all articles were collected on or about the same time,
disintegration of other blood stains and non-disintegration
of blood stain found at one spot is something which puzzles
us. Unfortunately, the author of the report i.e., the scientific
expert was not called for cross-examination, and there is
not much effort from the defence to demonstrate that the
seal of the articles dispatched was tampered with. In such
view of the matter, though we have questions in our mind,
we have no option but to accept the report as it stands.
However, whether this circumstance clinches the case for
the prosecution is what we shall now discuss.
79. Presence of blood of the accused in the room at best
indicates that at some point in time the accused was
present there. This does not indicate that the accused was
present on 31.08.2011 or for that matter on any given date.
Importantly, the prosecution case itself is that the accused
Page 54 of 60
Criminal Appeal No. 166 of 2019
had been visiting the house of the deceased regularly in the
past. Probability of some injury in the past causing blood to
spill on the cabinet is one possibility which cannot be ruled
out. Besides, what is important is that the accused’s blood
was not found on the clothes of the deceased or on any cloth
or material which might have been used to strangulate the
two deceased. In consequence, this circumstance, even if it
is accepted as proven, is not conclusive of the accused being
the perpetrator of the crime.
Circumstance of left thumb injury found on the hand of
the accused.
80. There is no doubt that the thumb injury was found
at the time of the arrest and the accused had got it attended
by a doctor on 01.09.2011. The explanation of the accused
is that she had visited ‘Mani Mahesh’ and while traveling
her thumb got crushed in the car door and, therefore, she
got the wound stitched. She had herself produced the OPD
slip of her treatment. PW-20 also states that the accused
had herself produced the OPD slip. Now, what is important
is that PW-20 does not state that he had come to know from
the statements of PW-4 and PW-18 that the accused had a
Page 55 of 60
Criminal Appeal No. 166 of 2019
thumb injury. Further, PW-20 does not disclose that he had
arrested the accused after recording the statement of PW-4
and PW-18. At this stage, it would be useful to consider the
statement of PW-4 during cross examination. PW-4 states:
“I do not remember when and to whom, I had
disclosed this incident first of all. The police had
contacted me after about 9-10 days. I was called
to the police station. The Dy SP had asked me
whether I know the accused present in the court
today and thereupon I had narrated the incident
to him. I had not disclosed about the fare to
anyone. Apart from the accused, there were two
other ladies in the police, who were police
constables.”
The above statement of PW-4 clearly reveals that his
statement was recorded after the accused was arrested.
Thus, at the time when PW-4’s statement was recorded, the
police had noticed the injury on the hand of the accused,
they had the OPD slip in their possession disclosing the
date of the injury and, therefore, they had the opportunity
to weave a story about the deceased carrying a bleeding
thumb injury right from the scene of crime. This we say so
because PW-20 i.e., the investigating officer does not state
that the accused had made a disclosure about travelling to
Diur in the Taxi of PW-4. In such circumstances, the need
to call PW-4 to the police station remains a mystery.
Possibility of PW-4 being used as a tool to weave a story
Page 56 of 60
Criminal Appeal No. 166 of 2019
appears more probable. In the aforesaid circumstances,
though presence of thumb injury on the hand of the
accused is proved but it carries little weight as we have
already discarded PW-4 and PW-18 as untrustworthy
witnesses. Besides, the accused had offered explanation for
the injury and had voluntarily handed over the OPD slip to
the police.
Motive not proved
81. In cases of circumstantial evidence, the presence
of a strong motive lends credence to the prosecution case,
though, absence of motive is not fatal to the prosecution
case. However, if the other circumstances are not
conclusive or lack the requisite probative value to conclude
that the accused is guilty, absence of motive becomes an
important reason to give the benefit of doubt to the accused.
82. In the instant case, the motive propounded by the
prosecution is that the accused was annoyed that her father
had bequeathed his property to D-2 and therefore, she
wanted to finish him off. However, no evidence has come on
record that there was any bequest in favour of D-2. Besides,
the accused would not alone derive the benefit of the crime
Page 57 of 60
Criminal Appeal No. 166 of 2019
because admittedly her father had left five daughters
including the accused from his first wife. Thus, even if her
stepbrother i.e., D-2 was removed, the other sisters would
get the benefit. Therefore, there was no strong motive for
the accused-respondent to commit the crime.
Summary of our Analysis
83. Having discussed all the incriminating
circumstances, the summary of our analysis is as under:
(a) Death of the two deceased though was
homicidal but whether death had
occurred in the intervening night of
31.08.2011/ 01.09.2011 is not proved
beyond doubt. Possibility of death
occurring later, perhaps on 01.09.2011 or
02.09.2011 is not ruled out by the
medical evidence.
(b) The accused being present in the house of
D-1 on 31.08.2011 is not proved beyond
reasonable doubt. PW-1, the witness of
last seen circumstance, makes an
improvement over his previous statement
Page 58 of 60
Criminal Appeal No. 166 of 2019
and is not wholly reliable. PW-4 and PW-
18 are not credible witnesses hence they
fail to corroborate the last seen
circumstance narrated by PW-1.
(c) It is not proved beyond reasonable doubt
that the lock which was produced in
Court was the one that had locked the
door of D-1’s house.
(d) Recovery of keys of the lock and the
mobile of D-1, at the instance of the
accused, does not inspire confidence,
more so when there is an investigational
lapse in obtaining the CDR with tower
location of that mobile. Besides, CDR of
D-1’s mobile was not exhibited.
(e) DNA matching of the profile generated
from blood of the accused with the profile
generated from the blood stained scrape
collected from a cabinet placed in the
room of D-1’s house is not conclusive
about the accused being guilty of the
Page 59 of 60
Criminal Appeal No. 166 of 2019
crime as the accused had been a regular
visitor to that house and, therefore, the
presence of blood from before is not ruled
out. Importantly, blood of the accused
was not found present on the clothes of
D-1 and D-2 or on the cloth with which
D-1 and D-2 were allegedly strangulated.
(f) Suppression of CDR of D-1’s mobile and
its tower location creates an impression
that prosecution is suppressing vital
information, as it would have helped in
determining whether the deceased died
on the date and time professed by the
prosecution or any time later as also
whether the accused and the deceased
were at one place at any given point in
time.
(g) In a nutshell, neither the incriminating
circumstances were proved beyond
reasonable doubt nor they constituted a
chain so far complete as to exclude all
Page 60 of 60
Criminal Appeal No. 166 of 2019
hypothesis consistent with the innocence
of the accused and point conclusively that
it was the accused and no one else who,
in all human probability, had committed
the murders.
Conclusion
84. In conclusion, we have no hesitation in holding
that the prosecution had failed to bring home the charge
against the accused. Consequently, we find no reason to
interfere with the decision of the High Court. The appeal is
accordingly dismissed.
85. Pending application(s), if any, shall stand disposed
of.
...................................J.
(MANOJ MISRA)
...................................J.
(VIJAY BISHNOI)
New Delhi;
October 01, 2026
Print Page
No comments:
Post a Comment