Tuesday, 6 October 2026

Investigating Officer Must Not Create Evidence' : Supreme Court Upholds Acquittal After Finding Witnesses Were 'Set Up'

 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

Dated: October 01, 2026

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