Abrar Etc. vs N.C.T. Of Delhi

Court
Delhi High Court
Case type
Criminal Appeal
Decided on
18-03-2026

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 12.02.2026
Pronounced on: 18.03.2026

+ CRL.A. 567/2002
ABRAR ETC. .....Appellants
Through: Mr.Mohd. Shamikh and
Mr.Vaseem Mian, Advs.

versus

N.C.T. OF DELHI .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Adv.


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. This appeal has been filed, challenging the judgment dated
29.05.2002 passed by the learned Additional Sessions Judge,
Shahadara District, Karkardooma Court, Delhi in SC No.16/2001,
titled State v. Abrar & Anr. , convicting the appellants of the offences
under Sections 365/34, 302/34, 201/34 and Section 404 of the Indian
Penal Code, 1860 (hereinafter referred to as ‘IPC’).
Signature Not Verified
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2. The appellants further challenge the order dated 29.06.2002
passed by the learned Trial Court, imposing the following punishment
on them:
Sections (IPC) Punishment
302
Rigorous Imprisonment for
life and to pay a fine of
Rs.5,000/- each and in
default of payment of fine
to undergo further Simple
Imprisonment for one
year.
365
Rigorous Imprisonment for
a term of seven years and
to pay a fine of Rs.5,000/-
each and in default of
payment of fine to undergo
further Simple
Imprisonment for one
year.
201
Rigorous Imprisonment for
three years and to pay a
fine of Rs.3,000/- each and
in default of payment of
fine to undergo further
Simple Imprisonment for
eight months.
404
Rigorous Imprisonment for
three years and to pay a
fine of Rs.3,000/- each and
in default of payment of
fine to undergo further
Simple Imprisonment for
eight months.

3. It is the case of the prosecution that on 24.08.2000, a missing
person report was lodged at Police Station (PS) Gokul Puri by Mr.
Wahid Khan, PW-1, brother of the missing person-Mr. Sitabi,
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informing that he alongwith his family and younger brother-Mr. Sitabi
were living at Moonga Nagar. The appellants, namely, Mr. Abrar and
Ms. Shanno, also started residing in the neighbourhood and with the
passage of time, an illicit relationship developed between the appellant
no.2- Ms. Shanno and the deceased. Due to this reason, Mr. Wahid
Khan (PW-1) shifted to Nehru Vihar, however, the deceased started
living at Moonga Nagar with his other brother, namely, Mr. Ashraf,
and continued visiting terms with the appellant no.2. Due to the same,
PW-1 got the deceased married to his sister-in-law, namely, Ms.
Shabana, on 14.07.2000. On 20.07.2000, the deceased came to Delhi
from the village and stayed with PW-1 at night and, in the morning, he
went to his own room at Moonga Nagar, but thereafter did not come
back. PW-1 then contacted the landlady of the house, PW-4- Ms.
Saraswati, and she told him that in the evening of 25.07.2000, the
deceased had gone with the appellant no.2 and had not come back. On
the same day, the brother-in-law of PW-1 and the deceased, Mr. Jakir
(PW-2), informed PW-1 that on 25.07.2000 at about 10.00 p.m., he
had seen the deceased in the company of the appellants near Brijpuri
Pulia and on his enquiry, the appellant no.2 informed that all three of
them were going to attend a marriage at Rampur. PW-1 stated in his
complaint that despite the best efforts, neither the appellants nor the
deceased could be traced out. On coming to know that the appellants
were in the area of Khajoori Pushta, PW-1 went there and enquired
about the deceased but did not receive any satisfactory reply.
Therefore, he made a complaint to the police, on the basis of which,
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FIR No.344/2000 was registered under Sections 365/34 of the IPC on
24.08.2000.
4. It is further the case of the prosecution that on receipt of secret
information and on the pointing of complainant-PW-1, on 26.08.2000,
the appellants were arrested from Khajoori Pushta, where they made
disclosure statements to the effect that the deceased- Mr. Sitabi was
having illicit relations with the appellant no.2- Ms. Shanno, and after
his marriage to the sister-in-law of PW-1, namely, Ms. Shabana, both
the appellants planned to get rid of him and accordingly, on
25.07.2000, they took him to Vamanpuri, District Rampur. They
stated that the deceased was made to drink excessively and then taken
to the bridge over river Ram Ganga, where they strangulated him with
the help of a cloth tape (katran). They stated that they also removed
two gold rings, wrist watch, and Rs. 4,000/- from the body of the
deceased, where-after they threw his dead body in the river Ram
Ganga. They stated that one gold ring was sold to a goldsmith- Mr.
Sanjeev (PW-21), while the wrist watch and the other ring were kept
at the house of the sister of the appellant no.2, Ms. Rehana (PW-6).
5. It is the case of the prosecution that the appellants then led the
police party to the recovery of one gold ring and wrist watch of the
deceased from the house of Ms. Rehana (PW-6). They then got
recovered the cloth tape (katran) used for strangulating the deceased,
from the jungle near the bridge, and lastly, a gold ring from the shop
of the jeweller, Mr. Sanjeev Kumar (PW-21).
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6. On basis of the above allegations, vide order dated 07.02.2001,
charges under Sections 365/34, 302/34, 201/34, and 404/34 of the IPC
were framed against the appellants by the learned Trial Court.
7. The prosecution, in support of its case, examined 22 witnesses.
8. The learned Trial Court, in its impugned judgment of
conviction, framed the following circumstances for consideration:-
“56. After hearing the arguments, the
following points have emerged for
consideration: -
a) The relationship between accused
Shanno and Sitabi (deceased).
b) Last seen evidence and disappearance
of Sitabi.

c) Effect of recovery of gold rings and
wrist watch and cloth tape.
d) Effect of non-recovery of dead body.
Has Sitabi been murdered, if so by
whom?”

9. On an analysis of the evidence, the learned Trial Court held that
the above circumstances stood proved against the appellants. It held
that mere non-recovery of the dead body of the deceased, would not
cast a doubt on the case of the prosecution. The learned Trial Court
concluded as under:
“101. Sitabi was living with his brother PW-1
at Moonga Nagar. The accused persons took
house on rent in the neighbourhood.
Acquaintance between the two families led to
the development of illicit relationship between
Sitabi and accused Shanno. This was not
approved by PW-1 and in order to prevent
dishonour of the family PW-1 shifted to Nehru
Vihar but sitabi in order to continue the
relationship instead of shifting to Nehru Vihar
started living with his other brother Ashraf Ali
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in the same locality. After some time even said
Ashraf Ali turned him out with the result that
he took room on rent in the house of PW-4
Saraswati where accused Shanno had been
freely coming to meet Sitabi. In these facts and
circumstances PW-1 Wahid Khan got Sitabi
married to his own sister in law Sahaba PW-1
(sister of PW-2 Jakir) on 14.7.2000 and on
20.7.2000 Sitabi comes and stays for a night in
the house of PW-1 Wahid Khan, at Nehru
Vihar, shows him photographs of the marriage
and next morning leaves for his own room in
the house of PW-4 Saraswati where said
landlady Saraswati saw Sitabi leaving the
room in the company of accused Shanno at
about 8.30/9.00 p.m. and then PW-2 Jakir saw
both the accused persons and Sitabi together
at Brijpuri Pulia when Sitabi told that they
were going to attend a marriage at Rampur
and thereafter Sitabi was never seen.
102. Both the accused persons started hiding
themselves and could be traced out with great
difficulty by PW-1 and when they did not give
any plausible explanation about the
whereabouts of Sitabi they arrested, their dis
closure statements were recorded which led to
the discovery of new facts and recoveries of
two gold rings and wrist watch belonging to
Sitabi, duly identified by his relation PW-1
Wahid Khan. The rings were made by jeweller.
PW-7 Sahid upon order having been placed by
PW-1 and Sitabi. One of the said rings was
recovered from a goldsmith PW Sanjeev to
whom accused Abrar had sold the same. Even
the documentary evidence in the shape of a
receipt regarding sale of the ring has been
proved as Ex.PW-21/A.
103. Persistent efforts have been made to
search the dead body. Officials of Delhi Police
went to police stations Ganj, Shahbad and
Siroli, part of the cloth tape which was used
got strangulating Sitabi was got recovered by
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the accused person. Five witnesses from
different police stations of Uttar Pradesh
Police have deposed about arrival of Delhi
Police party at their police stations in
connection with the investigation of this case.
The occurrence took place in late July, when
the rivers after monsoon are over flowing and
flooded. Sitabi was a bachelor aged about 22
years and was an earning persons as he was
working as a mechanic. Accused Shanno was
aged about 20 years. In the facts and
circumstances of the case it goes without
saying that Sitabi was having a female
companion and Shanno was having an earning
paramour. Then suddenly Sitabi got married,
it came as a bolt from the blue for Shanno.
Love arising out of illicit relations has many
facets like, jealousy, over possessiveness,
anger, revenge and so on. The illicit
relationship of the wife must generate
animosity in the heart and mind of the husband
against the paramour which may become
explosive on getting even a slightest co-
operation from the wife. Sitabi got married to
Sabana which was taking Sitabi away from
accused Shanno. Then onwards accused
Shanno and accused Abrar had unity of minds
and the end result was planned murder of
Sitabi though emotional causes were different.
I am therefore of the opinion that on the basis
of entire evidence and circumstances the only
definite conclusion is that guilt of the accused
persons is established beyond a shadow of
doubt and the facts so established are
consistant only hypothesis of guilt of the
accused persons and are not explainable to
any other hypothesis. Nature of proof is
conclusive and clinching and chain of events
in my view is complete and leaves reasonable
ground for conclusion pointing to the
innocence of the accused persons. I am of the
firm opinion that it is accused Shanno and her
husband accused Abrar who had planned,
abducted and murdered Sitabi and caused
Signature Not Verified
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disappearance of evidence of offence by
throwing the dead body in river Ram Ganga,
after removing the gold rings, wrist watch and
cash from the body of Sitabi. Then they
misappropriated the sale proceeds of one gold
ring. In the result the accused persons namely
Shanno and Abrar are held guilty of offences
punishable under section 365/34, 302/34,
201/34 and 404 IPC. They are convicted
accordingly.”

SUBMISSIONS OF THE COUNSEL FOR THE APPELLANTS
10. The learned counsel for the appellants submits that there are
material contradictions in the statements of the witnesses. The entire
case of the prosecution is based on the last seen theory propounding
on the statement of PW-2 and PW-4. He submits that PW-2, who is
the brother-in-law of the deceased and would be knowing of the
alleged illicit relationship between the appellant no.2 and the deceased
for several days, never raised any alarm on seeing the deceased
leaving along with the appellant no.2. Similarly, PW-4 is alleged to
have informed about the deceased being missing, but only after many
days of the disappearance of the deceased. PW-1, brother of the
deceased, though states that he made efforts to find whereabouts of the
deceased and the appellants, did not make any complaint to the police
for almost one month of the deceased not being heard of. He further
submits that this itself raises a doubt on the last seen theory of the
prosecution and in any case, breaks the chain between the period when
the appellants were allegedly seen with the deceased and the making
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of the complaint. In support, he places reliance on a decision in
Murugan v. State, AIR 2025 SCC 2125.
11. The learned counsel for the appellants, by placing reliance on
decision in Rambraksh @ Jalim v. State of Chattisgarh , 2016 (12)
SCC 251; Navaneethakrishnan v. State by Inspector of Police , AIR
2018 SCC 2027; Jabir and Ors. v The State of Uttarakhand, (2023)
16 SCC 111, submits that conviction only on the basis of ‘last seen’
evidence is not sustainable.
12. He further submits that in fact, the dead body of the deceased
has not been recovered till date and it is only the presumption that he
had died, on which the case of the prosecution rests.
13. The learned counsel for the appellants further submits that there
are contradictions in the statements of the witnesses with respect to the
alleged recoveries, clearly showing that the alleged recovered articles
have been planted and shown to have been recovered at the instance of
the appellants. He submits that PW-3 is supposed to be the witness to
these alleged recoveries, which is extremely doubtful inasmuch as no
reason has been assigned on why she would be specifically taken from
Delhi all the way to Rampur and made a witness to such recoveries.
He further submits that the recovery of gold ring from PW-21 is also
doubtful, and he has been harassed to become a witness. He submits
that mere recovery of items at the instance of the appellants, even if
presumed to be correct, would not be sufficient to hold them guilty of
murdering the deceased.


Signature Not Verified
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SUBMISSIONS OF THE LEARNED APP FOR STATE
14. On the other hand, the learned APP submits that there is a
complete chain of circumstantial evidence made out by the
prosecution against the appellants. He submits that the statements of
PW-2 and PW-4 are consistent and completely trustworthy to the
effect that they had last seen the deceased with the appellants. Since
that day, the appellants also disappeared and were traced only on
26.08.2000, and on being arrested, they gave their disclosure
statements- Ex.PW1/I and Ex.PW1/J respectively. Accordingly, their
Police Remand was obtained and they were taken to Rampur, UP.
Based on the said disclosure statements, recoveries were made from
the house of PW-6 Ms. Rehana, the sister of the appellant no.2; from
near the bridge where they had, after killing the deceased, thrown the
body in the river Ram Ganga; and also from the shop of PW-21. He
submits that therefore, the conviction of the appellants is not based
solely on last seen evidence, but also on the recoveries made at their
behest.
15. He further submits that the recoveries made cannot be doubted,
as the DD Entries placed on record duly establish the movement of the
police party from Delhi to Rampur and thereafter to Bareilly. In the
search and seizure not only the independent witness- PW-3- Ms. Raisa
was involved, but also the police personnel from different police
stations in U.P. were involved; each proving the recovery at the
instance of appellant. He submits that minor contradictions in the
statements of these witnesses cannot come to the aid of the appellants.
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16. The learned APP further submits that the two gold rings which
have been recovered from the house of PW-6 Ms. Rehana and from
the shop of PW-21 Mr Sanjeev Kumar, have been proved to be
belonging to the deceased, as they were made by PW-7- Mr. Shahid,
who duly identified them. He also produced a kachha invoice for the
same (Ex.P-5) . Similarly, PW-21 deposed that one of the rings was
sold to him by the appellant no.1 and he had also obtained the
signature of the appellant no.1 on the kachha invoice for the same.
17. He submits that from these circumstances, it is proved beyond
doubt that the appellants killed the deceased. Relying on the judgment
of the Supreme Court in Gulab Chand v. State of M.P. , 1995 (3) SCC
574, he submits that in similar circumstances, where the articles
belonging to the deceased had been recovered from the accused
therein, the Supreme Court held that a presumption deserves to be
drawn under Illustration (a) of Section 114 of the Indian Evidence
Act, 1872 against the accused therein, that they would also have
murdered the deceased.
18. He submits that it is not an invariable rule of criminal
jurisprudence that the failure of police to recover the dead body will
render the prosecution case doubtful, entitling the accused to acquittal
on benefit of doubt. It is only one of the relevant factors to be
considered along with other facts and circumstances, to arrive at a
finding. Reliance is placed on Sanjay Rajak v. State of Bihar, (2019)
12 SCC 552.
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19. Further, by placing reliance on Subhash Aggarwal v. State of
NCT , (2025) 8 SCC 440, he submits that mere failure of the
prosecution to prove motive, is not sufficient to order acquittal of the
accused, where the other circumstances proved are convincing and
provide an unbroken chain of circumstances leading only to one
conclusion of guilt of accused and not to any other hypothesis. He
submits that such a case is made out against the appellants herein.

ANALYSIS/CONCLUSION
20. From the above, it would be apparent that the case of the
prosecution is based on the alleged illicit relationship between the
deceased and the appellant no. 2; the appellants and the deceased
being last seen leaving together in the evening of 25.07.2000; the
appellants disclosing that after they had murdered the deceased, they
had dumped his body in the river Ram Ganga, given deceased’s one
golden colour ring and wrist watch to the sister of appellant no. 2 –
PW-6 Ms. Rehana for safe keeping, and sold another gold ring to PW-
21 Mr.Sanjeev Kumar and finally, the alleged recovery of the ring
and the watch from the PW-6, the cloth piece (katran) allegedly used
to strangulate the deceased, from the jungle near a bridge on river
Ram Ganga at the pointing of the appellants, and another ring from the
PW-21, and from the testimony of PW-7 establishing that the rings
had been made by him at the asking of the PW-1.
21. What is most important in this case is that the dead body of the
deceased could not be recovered. The evidence adduced by the
prosecution therefore, has to be tested on this important anvil.
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22. In the entire case of the prosecution, PW-1 plays a pivotal part,
and therefore, his testimony is to be discussed in detail, and wherever
necessary, reference shall be made to the statements of other witnesses
in corroboration or to show contradiction in his testimony.
23. PW-1, in his statement, reiterated the allegation of the deceased
having an illicit relationship with the appellant no.2, because of which,
he got the deceased married to his sister-in-law- Shabana on
14.07.2000. He further stated that on 20.07.2000, the deceased came
to his house, showed him the photographs of his marriage, and stayed
at his house in the night. In the morning, he left stating that he is
going to his house. As he did not come back to the house for the next
5-7 days, PW-1 went looking for him at his house at Bhagirathi Vihar,
where he did not find him. He then, on 27/28.07.2000, enquired from
PW-4- Ms. Saraswati, the landlady of the deceased, who informed him
that the appellant no.2 used to come to the residence of the deceased
and that she had also come on 25.07.2000, and that the deceased had
accompanied her at about 9:00 p.m to 9.30 p.m on the same day, and
since then he did not return.
24. PW-1 further stated that he then met his brother-in-law-PW-2-
Mr. Jakir, who was also living in the same colony, that is, Bhagirathi
Vihar, where the deceased used to reside, and enquired about the
deceased from him. He is stated to have informed PW-1 that he had
seen the deceased along with the appellants near Brijpuri Pulia on
25.07.2000 at about 10.00 p.m.; he had shaken hands with the
deceased and enquired as to where the deceased was going, on which,
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the deceased replied that he was going along with the appellants to a
village in Rampur to attend a marriage.
25. PW-1 further stated that he searched for the deceased but could
not find him. He later came to know that the appellant no.2 was seen
in Delhi near Khajoori Pushta. He searched for her and also went to
Pooja Colony, where appellant no. 2’s sister resides, but could not find
her. On enquiry, he came to know that the appellant no.2 was seen
there some days ago.
26. It is further stated by PW-1, that one day he came to know that
the appellants were seen at Khajoori Pushta, and accordingly informed
the police at PS Gokul Puri. He then went to Khajoori Pushta along
with SI Kailash Chand, where they apprehended the appellants near
Red Light, Khajoori Pushta.
27. He stated that, on interrogation by the police, the appellants
stated that they had killed the deceased, but gave different versions of
the manner in which they had committed the crime, on which he filed
the Complaint-Ex. PW-1/A with the police. We must herein note that
the said Complaint on which the FIR was registered under Section
365/34 of the IPC, is dated 24.08.2000, and whereas, as per the
prosecution, the appellants had been apprehended on 26.08.2000.
This, however, is not sufficient to cast a doubt on the case of the
prosecution, as this is only a minor discrepancy in his statement
regarding the happening of two days.
28. PW-1 further stated that that the appellants led the police to the
house of the sister of the appellant no.2 PW-6 Ms. Rehana at Village
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Rampur, where PW-6 came after some time and on enquiry produced
one golden colour ring and one wrist watch, which he identified to be
that of the deceased. We must herein note that the fact of the police
party leaving for Rampur on 26.08.2000 and recovering the watch and
ring from the house of PW-6, is corroborated from the statement of
other witnesses as well, as we shall be discussing herein after.
29. He further stated that thereafter, the appellants led the police
party to village Wahampuri (other witnesses have referred to it as
Vamanpuri/Bamanpuri), Shahbad, and as the police vehicle was about
to cross the Ram Ganga Bridge, they pointed the place where they had
strangulated the deceased with the help of cloth tape (katran) and
thrown the body into the river Ram Ganga. He states that the cloth
tape (katran) was recovered from the jungle at the showing of the
appellants. He stated that the police then called the local divers to try
to trace the body from the river, but could not find it. This part of his
testimony is also supported by other witnesses, as we shall discuss
hereinafter.
30. PW-1 further stated, that thereafter, they all went to the shop of
Mr. Sanjeev Kumar (PW-21) in Pooja Colony, U.P, who, after some
hesitation, produced the gold ring stating that the appellants had sold
the same to him for Rs.700/-.
31. PW-21 Mr. Sanjeev Kumar, the goldsmith, was examined. He
state that it was about 2-3 months before the police visited his shop
along with the appellant no. 1, that the appellant no. 1 along with a
lady had come to sell the ring to him. He pointed to the appellant no. 1
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Mr. Abrar, as the one who had sold the ring to him. He produced a
receipt (Ex. 21/A) bearing the signatures of the appellant no. 1,
acknowledging sale of the ring and receipt of Rs. 590/- in lieu thereof.
32. As far as purchase of the rings is concerned, the prosecution
relied upon PW-7 – Mr.Shahid, who is stated to have sold the same
along with other jewellery items to PW-1 and the deceased. He also
produced a slip containing the price of the items sold (Ex. P-5).

33. PW-3 Ms. Raisa, is the witness to the alleged disclosure
statements of the appellants and the recoveries made at their instance.
She states that on 26.08.2000, she was called by the police as she is a
Social Worker of the area. She states that the personal search of the
appellants was carried out in her presence and they were arrested. She
further states that on 27.08.2000, she along with the police went to
Rampur, U.P., as the appellants had pointed out that they had left a
gold ring and a wrist watch with PW-6 Ms. Rehana, sister of the
appellant no.2, and the same was produced by PW-6 to the police
party. They also got recovered the brown rope (rassi/katran), and on
the next day, that is, on 28.08.2000, the gold ring was also recovered
from PW-21- Mr. Sanjeev Kumar at the instance of the appellants.
34. As far as recoveries of two rings, the wrist watch and the cloth
tape (katran), is concerned, apart from PW-1, PW-3, PW-21 and PW-
7, whose testimonies we have discussed in detail above, PW-6 Ms.
Rehana, sister of the appellant no.2 was also examined by the
prosecution. She stated that some police officials had come to her
village and asked her to sign the papers and, on her refusal, they
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obtained her thumb impression on blank papers. She was cross
examined by the learned APP for the State, however, remained hostile.
The fact that the police had visited her house, however, gets
corroborated by her statement.
35. PW-12 Ct. Ved Ram, P.S. Ganj, Rampur, U.P. was also
examined as a witness of the recovery made from the house of PW-6.
36. PW-10 Ct. Nathu Singh from Police Station: Kotwali, District
Rampur, stated that on 27.08.2000, he was asked to accompany the
officials from the Delhi Police and along with them and the appellant
no.1, he went to Ram Ganga Bridge, where the appellant no.1 had
pointed to a Sheesham Tree situated about 70-80 metres away from
the Ganga Bridge, from where he produced the cloth tape (katran)
which was lying in the bushes.
37. PW-18-HC Tanjeb Singh and PW-22-Ct. Subhash from P.S.
Gokal Puri were also examined to prove the recoveries made at the
instance of the appellants.
38. IO of the case SI Kailash Chand Yadav was examined as PW-
20, who deposed about the arrest of the appellants, the disclosures
made by them, and the recoveries made at their instance.
39. In Gulab Chand (supra), the Supreme Court, in a case where
recoveries of articles belonging to the deceased had been recovered
from the accused, held that while there can be no hard and fast rule
laid down as to what inference should be drawn from certain
circumstances, and that mere recovery of stolen articles may not be
sufficient to infer that the person in possession of the stolen property
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had committed the murder, and that suspicion cannot take place of
proof, at the same time, it held that if ornaments in possession of the
deceased are found to be in possession of the accused soon after the
murder, a presumption of guilt may be permitted under Illustration- (a)
to Section 114 of the Indian Evidence Act, 1872.
40. As far as the last seen theory is concerned, the prosecution
relies upon PW-2-Mr. Jakir, brother-in-law of the PW-1 and the
deceased (as PW-1 and the deceased had been married to two sisters),
and on PW-4 Ms. Saraswati, the landlady of the deceased’s house in
Bhagirathi Vihar.
41. PW-2 Mr. Jakir has stated about seeing the deceased along with
the appellants near Brijpuri Pulia at about 10.00 p.m. on 25.07.2000.
He has further stated that on enquiry, the deceased told him that they
were going to Rampur to attend a marriage. He has also stated that the
deceased was wearing two gold rings in his right hand, which he
noticed as the deceased shook his hands.
42. PW-4 Ms. Saraswati, the landlady of the deceased’s house in
Bhagirathi Vihar, in her statement stated that the appellant no.2 used
to visit the room of the deceased, and on 25.07.2000 at about 8:30
p.m., she had seen the appellant no.2 and the deceased leaving the
house together.
43. From the above analysis of the evidence, it is apparent that the
deceased was known to the appellants. The statement of the PW-1 that
the deceased was having an illicit relationship with the appellant no. 2,
could not be disputed by the appellants.
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44. From the statement of the PW-4, it has also been proved that on
25.07.2000 at about 8:30 P.M., she had seen the appellant no. 2 and
the deceased leave the house of the deceased together, informing her
that he would not be coming back in the night but would be returning
only in the morning. She did not see the deceased thereafter.
45. The learned counsel for the appellants has submitted that this is
a very weak piece of last seen evidence, inasmuch as, though the
deceased was stated to be missing from 25.07.2000, no complaint was
lodged with the police till 24.08.2000, that is, almost a month
thereafter. He further submits that PW-2 was the brother-in-law of
PW-1 and the deceased, however, he also did not file any complaint
with the police when the deceased did not return for such a long time.
He submits that this itself throws a doubt on the testimony of PW-1,
PW-2 and PW-4 and in any case, their testimony cannot be treated as
last seen due to the long passage of time between the alleged last seen
and the filing of the complaint of the deceased being missing.
46. While the above submissions would have cut ground in case the
prosecution was based only on the last seen theory, however, in the
present case, apart form the last seen, there are also recoveries alleged
against the appellants on their disclosure.
47. Further, PW-4, who is the landlady of the deceased can have no
reason to falsely implicate the appellants as being the persons with
whom the deceased had left on 25.07.2000 and not seen thereafter.
48. The reaction of the PW-1 in not lodging a police complaint on
finding the deceased missing, is also not unnatural. The deceased had
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been reported to have been last seen leaving with the respondent no. 2,
with whom he is alleged to be in an affair. PW-2 and PW-4 had
informed the PW-1 that the deceased had been seen leaving with the
respondent no. 2, on his own free will and not as a consequence of any
threat or coercion. In such scenario, for the PW-1 to make efforts on
his own to find the whereabouts of the deceased and the appellants,
rather than rushing to the police, cannot be said to be unnatural or
such that would cast a doubt on his statement.
49. Similarly, PW-2 had seen the deceased going along with the
appellants and was informed that they are going to attend a marriage
in a village at Rampur. It cannot be expected that the PW-2 should
have raised a hue and cry as he did not see the deceased thereafter for
some time.
50. In Rambraksh (supra), the Supreme Court held that a
conviction cannot be recorded against the accused merely on the
ground that the accused was last seen with the deceased. It was held
that the last seen theory comes into play where the time gap between
the point of time when the accused and the deceased were last seen
alive and when the deceased is found dead is so small that the
possibility of any person other than the accused being the perpetrator
of the crime becomes impossible. The prosecution has to complete the
chain of circumstances to bring home the guilt of the accused.
51. Similarly, in Navaneethakrishnan (supra), the Supreme Court
held that the law presumes that it is the person who was last seen with
the deceased, who would have killed the deceased, and the burden to
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rebut the same lies on the accused to prove that they had departed. It
was held that the last seen theory is an important event in the chain of
circumstances that would completely establish and/or could point to
the guilt of the accused with certainty, however, cannot alone
discharge the burden of establishing the guilt of accused beyond
reasonable doubt, and requires corroboration.
52. In Jabir (supra), the Supreme Court while again emphasising
that in a case based on circumstantial evidence, the prosecution is
obliged to prove each circumstance as well as the links between all
circumstances, beyond reasonable doubt, disbelieved the witnesses
who were set up to prove the last seen. Similar was the case in
Murugan (supra).
53. From the above, it would be evident that the last seen theory is
only one of the circumstances, which in conjunction with other
circumstances, if proved beyond reasonable doubt, may complete the
chain of circumstances alleged against the accused to establish their
guilt. Though alone it may not be sufficient to establish the guilt of the
accused, along with the other circumstances, it may be vital and may
play an important part to establish the guilt.
54. In the present case, having found that the deceased was last seen
in the company of the appellants, as stated in the testimonies of PW-2
Mr.Jakir (Brother-in-Law) and PW-4 Ms.Saraswati (landlady), we
proceed to consider whether there are other circumstances which
would complete the chain of circumstances and bring home the guilt
against the appellants.
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55. We have hereinabove discussed in detail the evidence of the
witnesses to the recoveries made at the pointing of the appellants.
Though the learned counsel for the appellants has made strong
emphasis on the PW-3 Ms.Raira not being the natural witness and, in
fact, stated that she is a stock witness used by the police, there is no
such evidence coming on record to support the same. In fact, she
denies such a suggestion put to her. In any event, PW-1 stands firm on
the recoveries made at the pointing of the appellants. In addition
thereto, the remand application filed stated that the body of the
deceased has to be recovered from Rampur, which could only be if the
appellants had disclosed the same to the police. There is also evidence
of DD entries with respect to the departure of the police party to
Rampur; the involvement of the police officials from other police
stations in U.P. for recovery of the gold ring and the watch of the
deceased from PW-6 Ms.Rehara and the piece of cloth (katran) from
near the bridge at Ram Ganga river. There is also the testimony of
PW-21 Mr.Sanjeev and PW-7 Mr.Shahid regarding the recovery of the
second gold ring and the rings being made at the asking of PW-1 and
the deceased.
56. In our view, these circumstances coupled with the last seen
evidence, establish the guilt of the appellants.
57. There is, however, still an important point to be considered,
which is that the dead body of the deceased has not been recovered. It
is the case of the prosecution that the appellants, after strangulating
the deceased, had thrown his body in the Ram Ganga river. It has also
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come on record that the police party which went to Rampur, made
efforts to recover the dead body from the river, and having not been
successful in the same, even went to various police stations on the
way, inquiring if any dead body has been recovered.
58. In Sanjay Rajak (supra), the Supreme Court discussed in detail
the law relating to circumstance of non-recovery of the dead body/
corpus delicti and the effect it has on the case of prosecution, by

holding as under:
“9. It is not an invariable rule of criminal
jurisprudence that the failure of the police to
recover the corpus delecti will render the
prosecution case doubtful entitling the accused
to acquittal on benefit of doubt. It is only one
of the relevant factors to be considered along
with all other attendant facts and
circumstances to arrive at a finding based on
reasonability and probability based on normal
human prudence and behavior. In the facts
and circumstances of the present case, the
failure of the police to recover the dead body
is not much of consequence in the absence of
any explanation by the appellant both with
regard to the victim last being seen with him
coupled with the recovery from his house of
the belongings of the deceased. Rama Nand v.
State of Himachal Pradesh, (1981) 1 SCC 511,
was a case of circumstantial evidence where
the corpus delicti was not found. This court
upholding the conviction observed:
“28…..But in those times when execution was
the only punishment for murder, the need for
adhering to this cautionary rule was greater.
Discovery of the dead body of the victim
bearing physical evidence of violence, has
never been considered as the only mode of
proving the corpus delicti in murder. Indeed,
very many cases are of such a nature where
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the discovery of the dead body is impossible. A
blind adherence to this old “body” doctrine
would open the door wide open for many a
heinous murderer to escape with impunity
simply because they were cunning and clever
enough to destroy the body of their victim. In
the context of our law, Sir Hale’s enunciation
has to be interpreted no more than
emphasising that where the dead body of the
victim in a murder case is not found, other
cogent and satisfactory proof of the homicidal
death of the victim must be adduced by the
prosecution. Such proof may be by the direct
ocular account of an eyewitness, or by
circumstantial evidence, or by both. But where
the fact of corpus delicti i.e. “homicidal
death” is sought to be established by
circumstantial evidence alone, the
circumstances must be of a clinching and
definitive character unerringly leading to the
inference that the victim concerned has met a
homicidal death. Even so, this principle of
caution cannot be pushed too far as requiring
absolute proof. Perfect proof is seldom to be
had in this imperfect world, and absolute
certainty is a myth. That is why under Section
3 of the Evidence Act, a fact is said to be
“proved”, if the court considering the matters
before it, considers its existence so probable
that a prudent man ought, under the
circumstances of the particular case, to act
upon the supposition that it exists. The corpus
delicti or the fact of homicidal death,
therefore, can be proved by telling and
inculpating circumstances which definitely
lead to the conclusion that within all human
probability, the victim has been murdered by
the accused concerned….”
10. Sevaka Perumal v. State of Tamil
Nadu , (1991) 3 SCC 471, was also a case
where the corpus delicti was not found yet
conviction was upheld observing:
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“5….In a trial for murder it is not an absolute
necessity or an essential ingredient to
establish corpus delicti. The fact of death of
the deceased must be established like any
other fact. Corpus delicti in some cases may
not be possible to be traced or recovered. Take
for instance that a murder was committed and
the dead body was thrown into flowing tidal
river or stream or burnt out. It is unlikely that
the dead body may be recovered. If recovery of
the dead body, therefore, is an absolute
necessity to convict an accused, in many a
case the accused would manage to see that the
dead body is destroyed etc. and would afford a
complete immunity to the guilty from being
punished and would escape even when the
offence of murder is proved. What, therefore,
is required to base a conviction for an offence
of murder is that there should be reliable and
acceptable evidence that the offence of
murder, like any other factum of death was
committed and it must be proved by direct or
circumstantial evidence, although the dead
body may not be traced…””

59. In view of the above, mere non-recovery of the dead body is not
fatal and cannot come to the aid of the appellants.
60. For the reasons stated hereinabove, we find no merit in the
present appeal. The same is accordingly dismissed.
61. The appellants must surrender, within a period of two weeks
from today, to undergo their remaining sentence. In the event of
failure to surrender within two weeks of the date of this judgment,
appropriate steps shall be taken by the State to ensure their arrest for
undergoing the remaining sentence.
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62. A copy of this order be sent to the learned Trial Court as also
the concerned Jail Superintendent for ensuring compliance.


NAVIN CHAWLA, J.


RAVINDER DUDEJA, J.
MARCH 18, 2026/Arya/sg/pb
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