Yashpal vs State Govt. Of N.C.T. Of Delhy
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.08.2026
Pronounced on: 05.11.2026
Uploaded on: 05.11.2026
# CNR No. DLHC010057952002
+ CRL.A. 264/2002
YASHPAL .....Appellant
Through: Mr.Vinayak Bhandari,
Mr.Ishaan Phukan, Advs.
(DHCLSC)
versus
STATE (GOVT. OF N.C.T. OF DELHI) .....Respondent
Through: Mr. Hitesh Vali, APP with Insp.
Manoj Dalal, PS Sultanpuri.
# CNR No. DLHC010058002002
+ CRL.A. 269/2002
BANARSI DASS .....Appellant
Through: Mr.J.M. Kalia, Mr.Dhruv Kalia,
Mr.Siddhartha Shukla and
Ms.Lavanya Kalia, Advs.
versus
STATE (GOVT. OF N.C.T. OF DELHI) .....Respondent
Through: Mr. Hitesh Vali, APP with Insp.
Manoj Dalal, PS Sultanpuri.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. The present appeals have been preferred by appellants, Yashpal
(Crl.A. 264/2002) and Banarsi Dass (Crl.A. 269/2002), challenging
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the judgment of conviction dated 31.01.2002 passed by the learned
Additional Sessions Judge, Delhi (hereinafter referred to as the „Trial
Court‟) in Sessions Case No. 46/1999, arising out of FIR No.
736/1998 registered at Police Station Sultan Puri, whereby the
appellants have been convicted for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as „IPC‟).
2. The appellants also challenge the order on sentence dated
31.01.2002 passed by the learned Trial Court, whereby the appellants
have been sentenced to undergo imprisonment for life and to pay a
fine of Rs. 2,000/- each for the offence punishable under Section 302
read with Section 34 of the IPC. In default of payment of the said fine,
they have been sentenced to undergo further rigorous imprisonment
for a period of three months.
CASE OF THE PROSECUTION:
3. Briefly stated, the case of the prosecution is as under:
i. Information was received on 13.10.1998, at about 08:35
p.m., regarding a murder having taken place at C-1/3, Sultan
Puri. The said information was recorded vide DD No. 34-A
(Ex.PW-1/A). Pursuant thereto, PW-13/ SI B.N. Mishra along
with PW-15/ Constable Ashok Kumar proceeded to the spot.
ii. Upon reaching the spot, they found the blood-soaked
body of the deceased- Hari Chand in the gali between the
Government Higher Secondary School, BC Block and
Ambedkar Park. The deceased was found to have sustained
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multiple wounds and injuries on his head, neck, chest and back.
A cycle of the make „Atlas‟ was also found lying at a distance
of about 50 paces from the body of the deceased. No eye-
witness was found present at the spot. The deceased was
removed to the hospital.
iii. PW-13/ SI B.N. Mishra made an endorsement (Ex.PW-
13/A) on the DD No. 34-A and sent the same through PW-
15/ Constable Ashok Kumar for registration of the case, and FIR
No. 736/1998 (Ex.PW-1/B) was registered under Section 302 of
the IPC. The investigation was thereafter handed over to PW-
20/ Additional SHO Sushil Kumar .
iv. PW-20/ Additional SHO Sushil Kumar seized a sample of
the blood-stained earth, a hawai chappal, earth control and the
cycle, and prepared the seizure memo (Ex.PW-9/A).
v. The prosecution alleged that further investigation
revealed that PW-8/ Ratan Lal , the brother-in-law of the
deceased, was an eye-witness and had seen that appellants
Yashpal and Banarsi Dass and the co-accused Virender (who
has been acquitted by the learned Trial Court by the impugned
order of conviction) had attacked the deceased with a sword in
his presence .
vi. The body of the deceased was sent for post-mortem
examination, and the examination was conducted by PW-18/ Dr.
K. Goel on 14.10.1998, who prepared the Post-Mortem Report
(Ex.PW-18/A). In the Post-Mortem Report, it was opined that
the deceased had sustained multiple external injuries caused by
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a sharp-cutting weapon. It was opined that “ all injuries are
ante-mortem in nature, caused by sharp, cutting weapon.
Injuries no.1 & 2 are caused by relatively heavy cutting sharp
weapon. All other injuries are caused by sharp, cutting,
penetrating, flat weapon. All injuries are caused by other party.
Cause of death is asphyxia consequent upon choking of airway
(Trachea) by blood clots and Hemorrhagic shock consequent
upon injuries to the Heart, liver & neck vessels. Injuries no. 3,
4, 5, 8 & 9 are sufficient to cause death in ordinary course of
nature individually or collectively. Time since death is about 17
hrs. ”.
vii. Thereafter, the body of the deceased was handed over to
his relatives.
viii. On 18.10.1998, three accused persons, that are,
appellants Yashpal and Banarsi Dass and the co-accused
Virender were arrested, and their disclosure statements were
recorded (Ex.PW-8/A, Ex.PW-8/B, and Ex.PW-8/C).
Appellants Yashpal and Banarsi Dass and the co-accused
Virender then led the police party to the house of appellant
Banarsi Dass at H.No. C-3/145, Sultan Puri, from where
appellant Banarsi Dass got a sword recovered from underneath
a cot. This information was recorded vide the pointing-out
memo (Ex.PW-8/F). They also led the police party to
Wazirabad Bridge over the river Yamuna, from where appellant
Banarsi Dass had allegedly thrown his clothes after the incident.
This information was recorded vide the pointing-out memo
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(Ex.PW-8/D), however, the clothes of appellant Banarsi Dass
could not be recovered.
ix. The appellants and the co-accused Virender were then
taken to the police station, where the clothes of appellant
Yashpal were taken into possession as they seemed to have
some blood stains and were alleged to be the same clothes
which he had worn at the time of the incident. Accordingly,
seizure memo (Ex.PW-9/C) was prepared.
x. The appellants were then sent for their medical
examination, and their Medical Reports (Ex.PW-14/A, PW-
10/A and PW-10/B) were prepared. It was found that appellant
Yashpal had a stitched wound on his left thumb. Accordingly,
appellant Yashpal was again sent for a final medical opinion
upon his left thumb injury, however, no opinion could be given
on the duration of the said injury or the weapon by which it had
been caused. The same was recorded vide his Medical Report
(Ex. PW-14/B).
xi. On 08.12.1998, the recovered sword, the alleged weapon
of the offence, was shown to PW-18/ Dr. K. Goel, who opined
(Ex.PW-18/D) that two of the injuries on the body of the
deceased were possible to have been inflicted by the said
weapon or by a similar type of weapon.
xii. FSL Report dated 31.05.1999 (Ex.PW-20/F) opined that
there was presence of human blood of the same blood group as
that of the deceased on the recovered sword and on the clothes
of appellant Yashpal.
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4. Upon completion of investigation, Charge-Sheet was filed
against the appellants and the co-accused Virender.
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT:
5. The learned Trial Court, vide the order dated 11.10.1999,
framed the following charge against the appellants:
“That on 13.10.98 at about 7.30p.m. at BC
block, Govt. Sr. Secondary School near
Ambedkar Park, within the jurisdiction of P.S.
Sultanpuri, you all in furtherance of your
common intention committed murder by
causing the death of Hari Chand and thereby
committed an offence punishable under section
302/34 IPC and within my cognizance.
And I hereby direct that you all be tried by this
court for the said offence”
6. The appellants pleaded not guilty and claimed trial.
7. In support of its case, the prosecution examined 20 witnesses,
including PW-8/ Ratan Lal , who is stated to be an eye-witness to the
incident.
8. Thereafter, the statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) on
05.11.2001, wherein they denied all the incriminating evidence
appearing on record against them, and stated that the prosecution
witnesses were interested witnesses and were deposing falsely.
Appellant Yashpal stated that he had been falsely implicated in the
present case on account of the enmity between appellant Banarsi Dass
and the deceased, and his association with appellant Banarsi Dass.
Appellant Banarsi Dass also stated that there was some enmity
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between him and the deceased and that he had been falsely implicated
in the present case on account of such enmity. He stated that the
deceased had illicit relations with his sister, which was objected to by
him and his family members, and had also led to disputes between
them, resulting in even police reports being lodged.
9. The appellants did not lead any evidence in their defence.
FINDINGS OF THE LEARNED TRIAL COURT:
10. The learned Trial Court, by the impugned judgment of
conviction, held that the prosecution had proved its case against
appellants Yashpal and Banarsi Dass beyond reasonable doubt and,
accordingly, convicted them for the offence punishable under Section
302 read with Section 34 of the IPC.
11. The learned Trial Court opined that the prosecution had failed
to establish last seen evidence and further held that PW-8/ Ratan Lal
was not an eye-witness to the incident, however, the recovery of the
sword at the instance of appellant Banarsi Dass was found to be
credible. The learned Trial Court also placed reliance on the „strong
circumstance‟ that the clothes worn by appellant Yashpal had human
blood matching with that of the deceased and that the left thumb of
appellant Yashpal was found to have a stitched wound, thereby
corroborating his disclosure statement. It was observed as under:
“It is not in dispute that the present witness is
brother-in-law (Jija) of the deceased. If he had
seen the accused person attacking him the
natural reaction should have been that he
should have raised noise. He should have also
chased the accused persons instead this
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witness went to the house of his in laws and
informed his other brother-in-law Vijay about
the alleged incident. When this witness
reached the place of occurrence and the
accused persons had left as has come in his
evidence then natural reaction of this witness
would have been to inform the police and to
make arrangements for immediate removal of
the injured to the Hospital. He has not done
so. In these circumstances the presence of this
witness having witnessed the alleged incident
does not inspire the confidence of the court
and his evidence to that extent is liable to be
dis-carded.
xxxx
....I find force in the submissions made by the
counsel for the accused that there is no
evidence of last seen having been proved by
the prosecution. In view of this I come to the
conclusion that there is no last seen evidence
and Rattan Lal is not an eye witness as alleged
by the prosecution.
Now coming to the second point with regard to
the recovery of sword at the instance of the
accused persons. It has been submitted by
counsel for the accused that recovery of sword
is not proved by the prosecution. He has
submitted that PW11 even though has admitted
his signatures on the disclosure statement
Ex.PW8/A, PW8/B and PW8/C but he has
stated that his signatures were obtained by the
police on certain blank papers. He has
submitted that this witness when cross
examined by Ld. APP has denied that the
accused persons got recovered sword which
was seized vide memo Ex.PW8/F. He has
submitted that the prosecution has thus failed
to prove the recovery of sword beyond any
shadow of reasonable doubt. This argument of
Ld. Counsel for the accused does not appeal to
me in view of the fact that PW8 Rattan Lal in
his examination-in-chief had stated that all the
accused persons were arrested after three days
of the incident. It has also come in evidence
that disclosure statements were made by the
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accused which are Ex.PW8/A, PW8/B and
PW8/C which bears his signatures at point-A.
It has also come in evidence-that three
accused led the police party to the house of
accused Banarsi and from under the cot a
sword was got recovered which was taken in
police possession vide memo Ex.PW8/F. The
sword is Ex.P-1. In the light of this categorical
statement made by PW8 the recovery of sword
at the instance of the accused cannot be
doubted.
It has been further submitted by the counsel
for the accused that all the accused including
Yashpal were arrested on 18.10.98. It has been
further submitted that at the time of arrest the
accused Yashpal was reportedly wearing the
same clothes which he was wearing at the time
of alleged incident. He has submitted that it
does not appeal to reason that for four days
the accused will continue to wear the same
clothes having blood stains after committing
the alleged crime. In this regard it may be
mentioned that Shirt Ex.P-2 and Pant Ex.P-3
which the accused was wearing at the time of
alleged incident were seized by the police after
arrest of the accused vide memo Ex. PW9/C.
These clothes where sent to FSL and the blood
group was found of Group-B which was the
blood group of the deceased Hari Chand. In
the disclosure statement made by the accused
by Yashpal he stated that at the time when
accused Banarsi was giving sword blow on
Hari Chand he also sustained injuries on his
thumb and fingers. After the arrest the accused
was sent for medical examination and as per
the medical examination of accused Yashpal
Ex. PW14/A the left thumb was found stitched
which corresponds to the disclosure statement
made by the accused. This is a strong
circumstance against the accused on which
reliance can safely be placed. Regarding the
recovery of sword it may be mentioned that the
same was sent to the doctor who conducted
post-mortem on the body of the deceased vide
his report Ex.PW18/A. The weapon of offence
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was produced before him on 8.12.98 and a
sketch was prepared by him which is
Ex.PW16/D and in his opinion injures No. 1 &
2 mentioned in post mortem report on the body
of Hari Chand was possible by the said
weapon. The request for opinion is Ex.PWI8/C
on the back of the same his opinion is
Ex.PWI8/D. This means that injury no. 1 and 2
were possible by this sword Ex.P-1. This
sword was also sent for chemical examination
and as per the CFSL report Ex.PW20/D and
Ex.PW20/E the human blood group was found
that was of B-group which tallied with the
blood group of the deceased. These
circumstantial evidence both against accused
Banarsi and accused Yashpal is sufficient
which persuades me to rely on the same and
come to the conclusion that these persons were
responsible for intentionally killing deceased
Hari Chand.
xxxx
In view of my above discussion, I hold the
accused Banarsi and Yashpal guilty of
intentionally committing the murder of Hari
Chand u/s 302/34 I.P.C. and convict them
accordingly.”
12. As regards the co-accused Virender, the learned Trial Court
opined that there was no circumstantial evidence connecting him with
the alleged offence. The learned Trial Court observed that even
otherwise, as per the disclosure statements, the only role assigned to
him was to keep a watch so that no police official may come. He was,
accordingly, extended the benefit of doubt and acquitted of the
charges levelled against him.
13. Thereafter, the impugned order on sentence dated 31.01.2002
was passed by the learned Trial Court, imposing the sentence, as noted
hereinabove on the appellants.
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14. Aggrieved of the impugned judgment of conviction and the
order on sentence, the appellants have preferred the present appeals.
SUBMISSIONS OF THE LEARNED COUNSEL FOR
APPELLANT YASHPAL:
15. The learned counsel for appellant Yashpal submits that the
learned Trial Court has erroneously convicted the appellant despite
absence of any evidence establishing meeting of minds or previous
concert between the appellants. He submits that neither last seen
evidence nor any motive has been established against the appellant,
therefore, the judgment of conviction and the order on sentence
deserve to be set aside.
16. He submits that PW-8/ Ratan Lal was projected to be the sole
eye-witness to the offence, however, the learned Trial Court itself
rejected his testimony and did not accept him as an eye-witness. He
submits that once the testimony of PW-8/ Ratan Lal is discarded, there
is no evidence establishing the presence of appellant Yashpal at the
place of the incident or connecting him with the commission of the
offence.
17. The learned counsel submits that it was the prosecution's case
that appellant Yashpal, along with appellant Banarsi Dass and co-
accused Virender, had gone to the house of the deceased and called
him out. However, the appellants were not identified by PW-11/ Vijay ,
the brother of the deceased, or PW-12/ Smt. Bahoti , the mother of the
deceased. He submits that PW-11/ Vijay had denied that appellant
Yashpal had come to the house to call the deceased.
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18. He submits that the learned Trial Court has erred in relying
upon the recovery of blood-stained clothes from appellant Yashpal, as
it is highly improbable that appellant Yashpal would continue to wear
the same blood-stained clothes for four-five days after the incident,
without making any efforts to discard or conceal them.
19. The learned counsel also relies upon the testimony of PW-
9 /Head Constable Arvind, who did not state that the clothes of
appellant Yashpal had blood stains; the testimony of PW-16/ SI Vinay
Singh, who stated that he could not remember where the clothes of the
appellant were taken into possession; and the testimony of PW-
8/ Ratan Lal , who stated that he does not recollect any clothes being
seized from the appellant.
20. He submits that the learned Trial Court has erred in placing
reliance on the blood detected on the clothes of appellant Yashpal, and
on the recovered sword, as the same is not an unique identification of
a person. He submits that the blood group „B‟ is a very broad
classification and the prosecution has failed to establish any specific
forensic link connecting the appellant to the commission of the
offence. He also submits that, in these circumstances, the possibility
of fabrication cannot be ruled out.
21. He submits that the learned Trial Court has also erred in placing
reliance upon the injury on the thumb of appellant Yashpal and in
observing that the same corroborates with his disclosure statement,
wherein he had stated that he had sustained a thumb injury with the
sword. He submits that the prosecution has failed to establish the time
when the said injury was caused or the weapon which had caused it.
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22. He further draws attention to the fact that no fingerprints were
lifted from this recovered sword.
23. He submits that the reliance upon the recovered sword is also
misplaced, as it could not be connected with certain fatal injuries. He
relies upon the statement of PW-18/ Dr. K. Goel to submit that only
injury nos. 1 and 2 could have been caused by the recovered sword.
He further submits that PW-18/ Dr. K. Goel did not definitively
connect the recovered sword with the said two injuries, and had only
opined that it was possible that the injuries had been caused by the
recovered weapon.
24. He contends that the learned Trial Court has applied different
standards of proof while considering the case of the appellant and the
case of the co-accused Virender. While the co-accused Virender was
acquitted by granting the benefit of doubt, finding no circumstantial
evidence connecting him to the commission of offence, the appellant
has been convicted on similar set of circumstances and evidence.
SUBMISSIONS OF THE LEARNED COUNSEL FOR
APPELLANT BANARSI DASS:
25. The learned counsel for appellant Banarsi Dass submits that the
findings of the learned Trial Court are unsustainable, as the conviction
has been based primarily on the alleged recovery of the weapon of the
offence, that is, the sword, however, there are material inconsistencies
in the said recovery. While the recovery memo of the weapon was
endorsed by PW-8/ Ratan Lal, the alleged eye-witness, he admitted in
his cross-examination that he had seen the sword for the first time at
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the police station and had come to know about its recovery only there.
He further submits that although the recovery memo is also endorsed
by the witness PW-11/ Vijay, he denied in his cross-examination that
the appellants had got the sword recovered.
26. Placing reliance on the judgments of the Supreme Court in State
of Rajasthan v. Hanuman , 2025 SCC OnLine SC 1387, and
Allarakha Habib Memon etc. v. State of Gujarat , 2024 INSC 590,
the learned counsel submits that the recovery of the blood-stained
weapon bearing the same blood group as that of the victim cannot, by
itself, be considered sufficient to link the accused with the
commission of the offence and, therefore, cannot be sufficient to
establish the charge of murder.
27. He submits that PW-12/ Smt. Bahoti , the mother of the deceased,
has also not supported the prosecution‟s case and had failed to identify
the appellants. Further, the prosecution has failed to establish the
motive for commission of the offence, which assumes significance in
a case based on circumstantial evidence. He submits that PW-12/ Smt.
Bahoti had merely stated that there had been a quarrel between the
deceased and the appellant regarding the sister of appellant Banarsi
Dass, however, the same is not sufficient to connect the appellant with
the commission of offence.
28. He submits that where a case rests entirely on circumstantial
evidence, the chain of circumstances must be so complete that every
hypothesis but the one sought to be proved is excluded. He submits
that in the present case, the evidence relating to recovery of weapon is
insufficient to fasten guilt upon the appellant.
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29. He further submits that the exact information given by an
accused while in custody has to be proved, and that a mere statement
that the accused led the police to the place where he had concealed the
articles is not indicative of the information given. In support, he relies
upon the judgment of the Supreme Court in Raja Khan v. State of
Chhattisgarh , 2025 INSC 167.
SUBMISSIONS OF THE LEARNED ADDITIONAL PUBLIC
PROSECUTOR:
30. On the other hand, the learned Additional Public Prosecutor for
the State submits that the impugned judgment of conviction and order
on sentence passed by the learned Trial Court suffer from no infirmity
and deserve to be upheld.
31. The learned APP submits that the learned Trial Court has
rightly placed reliance upon the recovery of the sword at the instance
of appellant Banarsi Dass. He submits that the recovery is a material
circumstance connecting appellant Banarsi Dass with the commission
of the offence and has been duly proved by the prosecution. The
recovery is further strengthened by the testimony of PW-18/ Dr. K.
Goel, who opined that two of the injuries on the body of the deceased
could have been caused by the recovered sword. He further submits
that the FSL Report also corroborates the recovered sword being the
weapon of offence, as it opines that the blood detected on the sword
was of the same blood group as that of the deceased. According to the
learned APP, these circumstances, when considered together, indicate
towards the guilt of appellant Banarsi Dass.
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32. As regards appellant Yashpal, the learned APP submits that the
clothes worn by him and taken into possession at the police station
were found to bear blood stains, and that the blood detected thereon
was of the same blood group as that of the deceased. He further relies
on the stitched wound found on the left thumb of appellant Yashpal as
a relevant incriminating circumstance. He points out that the appellant
himself, in his disclosure statement, stated that he had sustained the
said injury with the sword while attacking the deceased. The learned
APP submits that these circumstances, considered together, connect
appellant Yashpal with the commission of the offence.
33. He further rebuts the contention of the appellants that the
prosecution has failed to establish any motive for the commission of
the offence. Placing reliance upon the testimony of PW-12/ Smt.
Bahoti, he submits that there was enmity between the deceased and
appellant Banarsi Dass, arising out of a dispute concerning the sister
of appellant Banarsi Dass. He submits that this enmity provided the
motive for the commission of the offence. The learned APP further
submits that appellant Yashpal was a friend and associate of appellant
Banarsi Dass and this association with Banarsi Dass explains his
participation in the commission of the offence.
34. He also submits that the testimony of the eye-witness, PW-
8/ Ratan Lal cannot be discarded in its entirety merely because he was
not accepted by the learned Trial Court as a reliable witness. He
submits that, to the extent that his testimony is corroborated by other
evidence on record, particularly the recovery of the weapon, the same
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can be relied upon for establishing the circumstances against the
appellants.
ANALYSIS AND FINDINGS:
35. We have considered the submissions made by the learned
counsels for the parties and have also perused the record of the
learned Trial Court.
36. The case of the prosecution was built on the testimony of PW-
8 /Ratan Lal, who was presented as an eye-witness to the offence. As
has been noted hereinabove, the learned Trial Court itself disbelieved
PW-8 /Ratan Lal to be an eye-witness to the offence. The learned
Trial Court also gave its reasons for the same. We may only note that
those are only some of the reasons for which PW-8 /Ratan Lal cannot
be believed to be an eye-witness. In fact, if one sees his testimony as
a whole, it becomes evident that he had not witnessed the incident
but had come to know of the same only later.
37. The main plank on which the learned Trial Court, in spite of
finding PW-8 /Ratan Lal not to be an eye-witness to the offence,
convicted the appellants, is the alleged recovery of the weapon of the
offence, that is, a sword, at the disclosure and pointing out of
appellant Banarsi Dass and the recovery of blood stained clothes
worn by appellant Yashpal at the time of the offence and at the time
of his arrest. The learned Trial Court also applied Section 27 of the
Indian Evidence Act, 1872 (hereinafter referred to as, „Evidence
Act‟) and placed reliance on the alleged disclosure by appellant
Yashpal regarding the cause of the injury suffered by him on his left
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thumb.
38. As far as the disclosure and the recovery of the sword at the
instance of appellant Banarsi Dass are concerned, it is well settled
that in view of Sections 25 and 26 of the Evidence Act, a
confessional statement made by an accused to a police official is not
admissible. However, Section 27 of the Evidence Act carves out an
exception to this principle. We quote Section 27 of the Evidence Act,
as under:
“27. How much of information received from
accused may be proved.-
Provided that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any offence,
in the custody of a police-officer, so much of
such information, whether it amounts to a
confession or not, as relates distinctly to the
fact thereby discovered, may be proved.”
39. The essential ingredients of Section 27 of the Evidence Act are
three-fold. The same may be culled out as under:
i. The information given by the accused must lead to
the discovery of the fact which is the direct outcome of
such information.
ii. Only such portion of the information given as is
distinctly connected with the said recovery is
admissible against the accused.
iii. The discovery of the facts must relate to the
commission of such offence.
40. In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh ,
(2023) 16 SCC 510, the Supreme Court explained the pre-requisites
for invocation of Section 27 of the Evidence Act, as under:
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“56. If, it is say of the investigating officer that
the appellant-accused while in custody on his
own free will and volition made a statement
that he would lead to the place where he had
hidden the weapon of offence along with his
bloodstained clothes then the first thing that
the investigating officer should have done was
to call for two independent witnesses at the
police station itself. Once the two independent
witnesses arrive at the police station thereafter
in their presence the accused should be asked
to make an appropriate statement as he may
desire in regard to pointing out the place
where he is said to have hidden the weapon of
offence. When the accused while in custody
makes such statement before the two
independent witnesses (panch witnesses) the
exact statement or rather the exact words
uttered by the accused should be incorporated
in the first part of the panchnama that the
investigating officer may draw in accordance
with law. This first part of the panchnama for
the purpose of Section 27 of the Evidence Act
is always drawn at the police station in the
presence of the independent witnesses so as to
lend credence that a particular statement was
made by the accused expressing his
willingness on his own free will and volition to
point out the place where the weapon of
offence or any other article used in the
commission of the offence had been hidden.
Once the first part of the panchnama is
completed thereafter the police party along
with the accused and the two independent
witnesses (panch witnesses) would proceed to
the particular place as may be led by the
accused. If from that particular place anything
like the weapon of offence or bloodstained
clothes or any other article is discovered then
that part of the entire process would form the
second part of the panchnama. This is how the
law expects the investigating officer to draw
the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we
read the entire oral evidence of the
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investigating officer then it is clear that the
same is deficient in all the aforesaid relevant
aspects of the matter.
57. The reason why we are not ready or rather
reluctant to accept the evidence of discovery is
that the investigating officer in his oral
evidence has not said about the exact words
uttered by the accused at the police station.
The second reason to discard the evidence of
discovery is that the investigating officer has
failed to prove the contents of the discovery
panchnama. The third reason to discard the
evidence is that even if the entire oral evidence
of the investigating officer is accepted as it is,
what is lacking is the authorship of
concealment. The fourth reason to discard the
evidence of the discovery is that although one
of the panch witnesses PW 2 Chhatarpal
Raidas was examined by the prosecution in the
course of the trial, yet has not said a word that
he had also acted as a panch witness for the
purpose of discovery of the weapon of offence
and the bloodstained clothes. The second
panch witness, namely, Pratap though
available was not examined by the prosecution
for some reason. Therefore, we are now left
with the evidence of the investigating officer so
far as the discovery of the weapon of offence
and the bloodstained clothes as one of the
incriminating pieces of circumstances is
concerned. We are conscious of the position of
law that even if the independent witnesses to
the discovery panchnama are not examined or
if no witness was present at the time of
discovery or if no person had agreed to affix
his signature on the document, it is difficult to
lay down, as a proposition of law, that the
document so prepared by the police officer
must be treated as tainted and the discovery
evidence unreliable. In such circumstances,
the Court has to consider the evidence of the
investigating officer who deposed to the fact of
discovery based on the statement elicited from
the accused on its own worth. ”
(Emphasis Supplied)”
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41. In the present case, the appellants and the co-accused are
alleged to have given their disclosure statements on their arrest by
the police on 18.10.1998. The disclosure statement of appellant
Banarsi Dass is Ex.PW-8/B, which is alleged to be witnessed by PW-
16/ SI Vinay Singh , PW-8/ Ratan Lal, the brother-in-law of the
deceased, and PW-11/ Vijay, the brother of the deceased.
42. As noted hereinabove, PW-8/ Ratan Lal has not been found to
be a reliable eye-witness by the learned Trial Court. We have also
noted hereinabove that apart from the reasons given by the learned
Trial Court, we find that even otherwise, PW-8/ Ratan Lal is not a
reliable witness. Being the brother-in-law of the deceased, he is also
an interested witness. Even otherwise, in his deposition, PW-8/ Ratan
Lal merely states that the accused persons made disclosure
statements; what those disclosures were has not been stated by him.
On the recovery, he states, “ thereafter the police party accompanied
by the accused persons went to the house of Banarsi from where a
sword was recovered from under the cot . The same was taken in
police possession vide memo Ex.PW8/F. ”. The same does not satisfy
the test of Section 27 of the Evidence Act, as has been expounded by
the Supreme Court, and reproduced by us hereinabove. In his cross-
examination, he further states that the police did not prepare any
sketch of the sword in his presence nor did they measure the sword.
He states that he had neither seen the sword minutely at the time of
recovery nor read anything etched on its handle. In his further cross-
examination, he states that he came to know of the recovery of the
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sword at the Police Station when he was told so by the police and
that he had seen the sword for the first time at the Police Station. In
view of the above, the testimony of PW-8/ Ratan Lal as a witness to
the disclosure statements, or as a witness to the consequent recovery,
does not inspire confidence.
43. The next witness to the alleged discovery and the pointing out
is PW-11/ Vijay, the brother of the deceased, who turned hostile and
did not support the case of the prosecution. In his cross-examination,
he denied that the appellants had made any disclosure statements or
discovery in his presence. He also denied that the pointing out memo
was prepared in his presence.
44. This leaves only the police witness, that is, PW-16/ SI Vinay
Singh, to prove the alleged disclosure statement and the pointing out
memo. As far as the disclosure statement is concerned, PW-16/ SI
Vinay Singh simply states that the same were made by all the accused
and were recorded in the form of Ex.PW-8/A, Ex.PW-8/B and
Ex.PW-8/C. He also deposes regarding the alleged recovery of the
sword from the house of appellant Banarsi Dass and the clothes worn
by appellant Yashpal at the time of the offence as also at the time of
his arrest.
45. At the outset, we would note that the offence was committed
on 13.10.1998 and the accused were arrested on 18.10.1998, that is,
after a period of 5 days. While it is the case of the prosecution that
appellant Banarsi Dass had thrown the clothes worn by him at the
time of offence near the Wazirabad Bridge, curiously, appellant
Yashpal continued to wear the same clothes for five days, in spite of
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having blood spots on the same. This appears to be very improbable.
46. Further, at the time of their interrogation and the alleged
disclosure statements, the blood spots on his clothes are not noticed
by the police officers. The accused are first taken to the house of
appellant Banarsi Dass and, thereafter, to the Wazirabad Bridge. It is
only thereafter, when they returned to the Police Station, that blood
stains on the clothes of appellant Yashpal are noticed by the police
officials, and his clothes are seized. This again casts a doubt on the
case of the prosecution.
47. On the seizure of the clothes from appellant Yashpal, two
witnesses are cited. One being PW-16/ SI Vinay Singh, who states
that he does not remember at what place the clothes of appellant
Yashpal were taken into police possession. The other witness to the
seizure is PW-9/ HC Arvind, who states that at the time of
apprehension of the accused, the clothes worn by appellant Yashpal
and co-accused Virender were taken into police possession, however,
later stated that he does not remember if it was only the clothes of
appellant Yashpal which were taken into possession by the police.
PW-9/ HC Arvind further states that he did not notice if there were
any blood stains on the clothes seized or not, however, the seizure
memo (Ex.PW-9/C) records that on the clothes seized, stains, which
looked like blood, were seen.
48. The above discrepancies cast a grave doubt on the alleged
disclosure statements and the consequential recoveries of the sword
at the instance of appellant Banarsi Dass, as also upon the clothes
worn by appellant Yashpal.
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49. In addition to the above, the learned Trial Court has also
convicted the appellants also on the basis of the FSL Report, wherein
it was opined that the recovered sword had traces of human blood of
group B, which was also the blood group of the deceased. The
learned Trial Court also relied on the opinion of PW-18/ Doctor K.
Goel , who had opined that the injury nos. 1 and 2 mentioned in the
Post-Mortem Report of the deceased were possible by the said
weapon or „ by similar type of weapon ‟. In our view, the above
circumstances could not lead to a finding beyond reasonable doubt
that the sword recovered was the weapon of offence.
50. The deceased had suffered as many as 20 injuries. How the
other injuries, which also included incised wounds, were caused, has
not been explained by the prosecution.
51. In Hanuman (supra), the Supreme Court relying upon the
earlier judgment in Raja Naykar v. State of Chhattisgarh , (2024) 3
SCC 481, held that mere recovery of a blood-stained weapon, even
bearing the same blood group of the victim, would not be sufficient
to prove the charge of murder. The same was reiterated by the
Supreme Court in Allarakha Habib Memon (supra), wherein it was
held as under:
“43. The trial Court as well as the High Court
heavily relied upon the FSL reports (Exhibits
111-115) for finding corroboration to the
evidence of the eyewitnesses and in drawing a
conclusion regarding culpability of the
appellants for the crime. We may reiterate that
the testimony of the so-called eyewitnesses has
already been discarded above by holding the
same to be doubtful. Thus. even presuming
that the FSL reports(Exhibits 111-115)
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conclude that the blood group found on the
weapons recovered at the instance of the
accused matched with the blood group of the
deceased, this circumstance in isolation,
cannot be considered sufficient so as to link
the accused with the crime. In this regard.
reliance can be placed on the judgment of
Mustkeem alias Sirajudeen v. State of
Rajasthan, wherein this Court held that sole
circumstance of recovery of bloodstained
weapon cannot form the basis of conviction
unless the same was connected with the
murder of the deceased by the accused. The
relevant portion is extracted hereinbelow:-
"19. The AB blood group which was
found on the clothes of the deceased
does not by itself establish the guilt of
the appellant unless the same was
connected with the murder of the
deceased by the appellants. None of the
witnesses examined by the prosecution
could establish that fact. The blood
found on the sword recovered at the
instance of Mustkeem was not sufficient
for test as the same had already
disintegrated. At any rate, due to the
reasons elaborated in the following
paragraphs, the fact that the traces of
blood found on the deceased matched
those found on the recovered weapons
cannot ipso facto enable us to arrive at
the conclusion that the latter were used
for the murder." ”
52. For appellant Yashpal, apart from the recovery of the blood-
stained clothes from him, which we find extremely doubtful as
discussed hereinabove, the other circumstance taken into
consideration by the learned Trial Court is his alleged disclosure of
having suffered an injury on his thumb during the commission of the
offence. This again, in our view, could not be taken as a
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circumstance against the appellant. The injury on the thumb of
appellant Yashpal was a fact that was visible and was not a fact
which would be discovered only at the instance of the appellant.
How that injury was connected to the offence, has no independent
corroboration apart from the own confessional statement of the
appellant. Appellant Yashpal was medically examined twice over
and in both the reports, that is, Ex.PW-14/A and Ex.PW-14/B, no
definite opinion could be given on the age of the injury or upon the
weapon that caused it.
53. As far as motive is concerned, it acts as a double edged sword;
while on one hand it may complete the chain of circumstances
against an accused, on the other, it may also lead to false accusation
and implication in an offence, such accused being the easiest to
implicate. The Court, therefore, has to be careful while joining the
dots, including that of the motive, for finding whether a complete
chain of circumstances has been established by the prosecution
against the accused. In the present case, while there is a motive for
appellant Banarsi Dass to commit the offence, and maybe also for
appellant Yashpal as his friend, however, the same, in absence of
other dots to connect, is insufficient to hold that it could only be the
appellants who could have committed the murder of the deceased.
54. In view of the above, we find that the learned Trial Court has
tried to complete the chain of circumstances against the appellants,
which the prosecution had failed to establish. It is settled law that
once the testimony of the eye-witness is not believed, the case would
fall in the realm of circumstantial evidence and for convicting the
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accused on the basis of circumstantial evidence, the chain of
circumstance must be so complete as to lead only to the hypothesis
of guilt of the accused. In our view, the prosecution has failed to
meet this test. In fact, the learned Trial Court had extended the
benefit of doubt to the co-accused Virender, while proceeding to
convict the appellants.
55. Given the above, the impugned judgment of conviction dated
31.01.2002 and the consequential order on sentence dated
31.01.2002 cannot be sustained. They are, accordingly, set aside. The
appellants are acquitted of the charges, giving them the benefit of
doubt.
56. The appeals are allowed in the above terms.
57. The bail bonds of the appellants shall, however, remain valid
for a period of six weeks in terms of Section 481 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.
58. A copy of this judgment be sent to the learned Trial Court and
the concerned Jail Superintendent for information.
NAVIN CHAWLA, J
RAVINDER DUDEJA, J
NOVEMBER 5, 2026/ ns / Yg
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