Full Judgment Text
Reportable
2025 INSC 657
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos.3189-3190 of 2023
RENUKA PRASAD APPELLANT(S)
VERSUS
THE STATE REPRESENTED BY ASSISTANT
SUPERINTENDENT OF POLICE RESPONDENT(S)
With
Criminal Appeal No. 3399 of 2024
Criminal Appeal Nos.85-86 of 2024
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. Prevaricating witnesses, turning hostile in Court and
overzealous investigations, done in total ignorance of basic tenets
of criminal law, often reduces prosecution to a mockery.
Witnesses mount the box to disown prior statements, deny
recoveries made, feign ignorance of aggravating circumstances
spoken of during investigation and eye witnesses turn blind. Here
Signature Not Verified
Digitally signed by
is a classic case of 71 of the total 87 witnesses including eye-
Nirmala Negi
Date: 2025.05.09
15:33:16 IST
Reason:
Page 1 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
witnesses, turning hostile, leaving the prosecution to stand on the
testimony of the police and official witnesses. Even a young boy,
the crucial eyewitness, who saw his father being hacked to death,
failed to identify the assailants.
2. The prosecution alleged that due to differences arising
from sharing of assets of the father; an entrepreneur who set up
several educational institutions, A1 and his brother, PW4, were at
loggerheads. The deceased an employee of one of the institutions,
later allotted to the share of A1, resigned to join an institution
managed by PW4, after the division of assets. The enmity of A1
arises, according to the prosecution, due to the active
involvement of the deceased in the sibling rivalry, aligning
himself with PW4, to the hilt. A1 along with his employees A2 to
A4 engaged A5 and A6, through A7, an Advocate, to murder the
deceased. A5 and A6 is said to have carried out the brutal
murder, hacking the deceased to death, in front of his son, PW8, at
07:45 pm on 28.04.2011. PW8, immediately contacted his relatives
and the deceased was rushed to the hospital where he breathed
his last at 08:40 pm on the same day.
Page 2 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
3. The first information statement (FIS) was lodged by PW8,
leading to the registration of the crime and the resultant
investigation. As was said, 87 witnesses were led in trial to speak
about the homicide, the motive, the meeting of minds leading to
the conspiracy, the preparation, what transpired after the incident
and the arrest, recovery, chemical analysis and so on and so forth;
all in vain for most turned hostile, especially the ones who were
relevant. The Trial Court acquitted the accused finding no support
for the prosecution case from the large number of witnesses
arrayed to prove the various aspects leading to the murder, all of
whom, except the official witnesses, turned hostile. The Division
Bench of the High Court reversed the acquittal and convicted A1
to A6 under Section 302 read with Section 120-B of the Indian
Penal Code, 1860. The acquittal of A7 by the Trial Court was
affirmed by the High Court.
4. A1 has filed one of the appeals in which Mr. Siddharth
Luthra, learned Senior Counsel, appeared for the
accused/appellant. Mr. Ratnakar Dash, learned Senior Counsel
appeared in the other appeals filed by A2 to A6. Mr. Aman
Panwar, learned Additional Advocate General appeared for the
Page 3 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
State. Heard both the learned Senior Counsel appearing for the
appellants and the learned Additional Advocate General and
perused the records.
5. The Division Bench at the outset, dealt with the judgment in
1
Chandrappa v. State of Karnataka wherein this Court had set out
the general principles regarding powers of the Appellate Court in
dealing with an appeal from an acquittal. The principles are trite;
extract having been made in the impugned judgment, we would
not repeat. We are tasked to find out whether the principles have
been followed scrupulously by the Division Bench in setting aside
the order of acquittal. Whether, while exercising the full power
conferred in an appeal to review, reappreciate and consider the
evidence led in the case, the Division Bench has been
circumspect, keeping in mind the trite fundamental principle that
the presumption of innocence available to the accused, under the
general law, stands fortified and strengthened by reason of the
order of acquittal. Whether, the Trial Court has been absolutely
unreasonable in taking a view that there was insufficient evidence
to bring home a conviction in the case and whether it was a case
1
(2007) 4 SCC 415
Page 4 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
of two probable views, in which case the one favourable to the
accused ought to be taken.
6. PW8 is the eyewitness who spoke of the incident but failed
to identify the assailants or the weapons recovered, despite the
FIS having categorically stated his ability to identify them, who
suddenly came out of the bushes; when he and his father were
taking a stroll, brutally hacked his father and fled on their foot.
While MO6 and MO7, spectacles and mobile of the deceased
seized by the police from the scene of occurrence, was identified,
the witness could neither identify either of the appellants; A5 and
A6. The weapons were not even confronted to PW8, since he
expressed his inability to identify them. PW8’s knowledge of the
motive, spoken of in the statement under Section 161 of the Cr.P.C,
was denied. PW 1 & PW9 were the persons who came to the scene
of occurrence, as per the prosecution case, immediately after the
incident, who also saw two persons running away. PW1
completely denied his presence at the scene of occurrence, while
PW9 spoke only of having seen one person running away. PW9
deposed of seeing the injured and his son, the latter of whom was
advised to call relatives. He called the Police and summoned an
Page 5 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
ambulance, but even before its arrival, the injured was taken to
the hospital in a pick-up van. The statement made by PW1 and
PW9, under Section 161, regarding their ability to identify the
persons who were running away and their awareness of the
motive; being residents of the locality and the conspiracy having
been hatched by reason of the sibling rivalry of prominent
persons of the locality, were all denied.
7. PW2, the brother of the deceased, PW3, his uncle and
PW10, his wife, were examined to prove the inquest and also the
motive. All of them saw the injured at the hospital, spoke of the
injuries numbering twenty-five, admitted of the inquest and
identified the dress and other personal effects of the deceased,
seized by the police from the body. PW2, though spoke of his
brother’s employment with A1 and subsequent resignation due to
a disagreement, did not support the prosecution case of an active
enmity between the deceased and A1 by reason of the allegiance
to PW4, the brother of A1; a departure from his Section 161
statement. Curiously, the wife of the deceased also denied her
statement to the police that A1 had insulted and threatened the
deceased. PW3 was the uncle of the deceased who along with
Page 6 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
PW2 and PW10 saw the deceased at the hospital. There were a
number of witnesses examined to prove the motive, the
conspiracy and the incidental circumstances, leading eventually
to the murder of the deceased, all of whom turned hostile. The
Appellate Court though accepted that all these witnesses turned
hostile, looked at the story projected by the prosecution as
spoken of in the Section 161 statements of the witnesses, which
the witnesses did not accept, in the box, at the trial before Court.
8. PW4, the brother of A1, to whom was aligned the deceased,
and a star witness to speak on the motive, admitted the division of
the properties between the brothers but denied any long-
standing enmity between them. He also denied that he wrote a
letter to his father complaining about the actions of A1. A
photocopy of the said letter confronted to him, at the trial, was
denied, though he admitted that the signature seen therein was
similar to his. The effort of the prosecution to prove the various
aspects leading to the crime and what happened afterwards; (i) of
the conspiracy; hatched through the meetings carried out by the
accused, purportedly to prove the meeting of minds, the inquiries
made to find out the contract killers, persons approached for
Page 7 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
owning up the crime; (ii) preparation; like, the purchase of
machetes, procurement of fake number plates to be affixed in a
motorbike and pick up van, used to escape from the crime scene
and reach the hide out; and the (iii) motive itself; through
employees of the Medical College, PW57 to PW62 & PW72,
including the Administrative Superintendent and the Principal of
the College, to establish the enmity between A1 and PW4, all of
which collapsed like a pack of cards, when all of these witnesses
turned hostile. The motive, conspiracy, preparation made before,
and what transpired after the crime, as projected by the
prosecution remained a mere scripted story as discernible from
the Section 161 statements; not established in the trial.
9. Surprisingly, all the panch witnesses who attested the
various recoveries, like cash seized from A2 to A5, the weapons
used, and the clothes worn by the accused, when the crime was
committed, also turned hostile. We will deal with Exhibit P49,
recovery of the machetes, the weapons used in the offence and
Exhibit P50, recovery of the clothes worn by A5 and A6 at the time
of the crime, a little later, which has to be considered along with
the FSL report and the result of analysis coming forth. We also
Page 8 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
notice that there were two Mahazars produced as Annexure P51
and P54, wherein A1 allegedly confessed and pointed out the
place where the conspiracy was carried out and the money
transfer occurred. This, however, is not a confession under Section
27 of the Indian Evidence Act, 1872, since there was no tangible
object recovered from the two sites pointed out, leading to the
discovery of a fact. The confession statement regarding the
conspiracy, of course cannot at all be relied upon, being hit by
Sections 25 & 26 of the Evidence Act. The other witnesses
examined to prove the aggravating circumstances also turned
hostile in which event the Court turned to the evidence of the
Investigating Officers, PW’s 83, 84 and 87.
10. Commencing the analysis of evidence the High Court first
held that undisputedly Ramkrishna met with a homicidal death,
which is also the conclusion of the Trial Court from which there is
no reason for us to differ. The evidence of PW8, who was an eye
witness and PW9, who saw the hacked body of the deceased
immediately after the incident, coupled with the evidence of PWs
2, 3 and 10, brother, uncle and wife, who saw the body of the
deceased at the hospital and spoke of the injuries sustained,
Page 9 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
clearly established the brutal attack on the deceased. The post-
mortem report and the cause of death as spoken of by the Doctor,
PW74, also established the homicidal death caused by the cutting
wounds inflicted on the deceased, which were also ante-mortem.
We need not further deal with the issue and fully agree with the
Trial Court and the High Court that the deceased was brutally
murdered.
11. The High Court having found that all the witnesses except
the official witnesses turned hostile looked at the evidence of the
official witnesses especially the Investigating Officers and the
recoveries made in the course of investigation. The High Court
also relied on two decisions of this Court, State, Govt. of NCT of
2 3
Delhi v. Sunil and Rizwan Khan v. State of Chhattisgarh to find
that the courts need not always feed on a distrust of police
officers. We have to emphasize that the proposition coming out of
the said decisions were in the context of recoveries made under
Section 27 of the Evidence Act or the seizures effected on search
or interception.
2
(2001) 1 SCC 652
3
(2020) 9 SCC 627
Page 10 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
2
12. In Sunil and another , the recovery of a blood-stained
knickers was eschewed by the High Court since there were no
independent witnesses. A distinction was drawn from a case of
recovery, under information supplied by the accused and a
discovery made on a search, where there is an insistence on
having independent witnesses, under Chapter VII of the Code. It
was held that it is fallacious to hold that every recovery under
Section 27 must necessarily be attested by independent
witnesses and it is for the Police Officer to have such witnesses
present to provide further veracity to the recovery. But there could
be circumstances in which there were no witnesses present or
none had agreed to affix his signature on the mahazar, which
cannot always lead to the evidence of recovery being eschewed,
especially when the testimony of the Police Officer is not shown to
be tainted in any manner and is also found to be credible. It was
held that it is archaic and a colonial hangover that actions of the
Police Officer should be approached with primal distrust, always.
3
Rizwan Khan was a three Judge Bench decision which affirmed
2
Sunil & another to hold that if the police witnesses are found to
be reliable and trust worthy, no error can be attributed to the
Page 11 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
conviction entered relying upon such testimony. Therein, it was a
case of recovery of a narcotic substance from a motor-cycle in
which the accused were travelling, search having been conducted
on interception of the vehicle. The panchnama witnesses turned
hostile but the evidence of the Police Officers, found to be trust
worthy was relied upon.
4
13. State of H.P. v. Pardeep Kumar , again was a case in which
there were no independent witnesses to attest the recovery of the
contraband, since none were available due to the severe cold on
that day. The conviction was based on the testimony of seizure of
contraband from the accused, as testified by the Police Officers.
We cannot digress from the above proposition as laid-down by
this Court but only raise a caution, insofar the recovery made
under Section 27, in the context of the findings of the High Court,
in the instant case, having to be necessarily connected to the
crime and the accused, failing which the recovery is of no
consequence. We also have to observe that the confession can
only be with respect to the discovery of a fact leading to the
recovery of a material object and cannot be with respect to any
4
(2018) 13 SCC 808
Page 12 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
confession as to the actual crime as has been held in Pulukuri
5
Kottaya v. Emperor .
14. The High Court having stated the principle, went on to
examine the evidence of PW’s 83, 84 and 87. PW83 commenced
the investigation, to whom was handed over the letter, MO40,
allegedly written by PW4 to his father; which however, was
denied by PW4 in his testimony. The High Court discussing
PW83's evidence specifically referred to the Section 161
statements made by PWs 1, 5, 6, 9, 12, 13, 26 and 51, which were
affirmed to have been made by them before the Police as spoken
of by PW83. Observing that in cross-examination of PW83 but for
general suggestions, which were denied by him there was
nothing to discredit him and hence the testimony of PW83 is not
affected, the Division Bench held there is no reason to discard it.
We are afraid that the High Court seriously erred in relying on the
statements made by the witnesses under Section 161, as affirmed
by the Investigating Officer, clearly in violation of Section 162 and
the specific use to which Section 161 statements can be put to, as
we will further elaborate, a little later. It’s also pertinent that the
5
AIR 1947 PC 67
Page 13 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
conspiracy angle spoken of by PW83, is what has been stated to
him by A7, clearly inadmissible in evidence.
15. The evidence of PW84 with respect to seizure of currency
worth Rs.8,50,000/- and two mobile phones respectively from the
staff quarters of A5 and the person of A6, on information, the
source of which has not been disclosed was emphasised. The
arrest of A3, the seizure of Rs.2,00,000/- and a mobile phone from
A3 were also relied on. The Trial Court had placed no reliance on
these recoveries finding it to be not admissible under Section 27;
which the High Court was not impressed with and found it to be
permissible under Section 102 of Cr.P.C. Seizure under Section
102, unless it is linked to the crime cannot be relied on to convict
the accused for murder on the conspiracy alleged. But more
relevant is the fact that only the bundles of the money recovered
were identified in Court, by PW78, an ASI who accompanied
PW84 at the time of seizure and PW84, since there was no proper
inventory taken of the cash recovered. Further though PW84
spoke of the cash recovered being in bundles with slips showing
the name of the banks, no attempt was made to find out its source
from the Banks. The money hence was not connected to the crime
Page 14 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
and the Call Data Records of the mobile phones were not proved
in the trial.
16. Now we come to the IO, who concluded the investigation
and filed charge-sheet, PW87, before whom A3, A5 and A6 were
produced by PW84, after which the investigation was carried out
by PW87. It was PW87’s testimony that the voluntary statements of
A3 led to A2, from whose staff quarters Rs.2,58,000/- and two
mobile phones were recovered. A1 was also arrested, who is said
to have given statements about his enmity with PW4 and also the
deceased. These voluntary statements and the confession
statements of A3, under Section 27 also led PW87 to Amarajyothi
Farms, from where the weapons (MO 10 & MO 11) and a
motorcycle (MO 49) were recovered as per Ex.P49 Mahazar and
MO12 to MO15 clothes worn by A5 & A6 were recovered as per
Ex.P113, Mahazar. PW87's testimony also spoke about PW5 who
was close to the deceased having spoken of the enmity between
A1 and PW4; denied in Court by PW5. A reading of PW87’s
statement would reveal that she has just spoken of the voluntary
statements made by the various accused and there is no
investigation worthy of reliance spoken of by the witness. We are
Page 15 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
6
reminded of the extract in State of Bombay v. Kathi Kalu Oghad ,
an eleven Judge Bench, of a quote attributed to Sir James
Fitzjames Stephen, the principal draftsman of the Evidence Act:
“If it is permissible in law to obtain evidence from
the accused person by compulsion, why tread the
hard path of laborious investigation and
prolonged examination of other men, materials
and documents? It has been well said that an
abolition of this privilege would be an incentive
for those in charge of enforcement of law "to sit
comfortably in the shade rubbing red pepper into
a poor devil's eyes rather than to go about in the
sun hunting up evidence".
(Stephen, History of Criminal Law, p. 442)
17. The High Court has placed heavy reliance on the
testimonies of PW’s 83, 84 and 87, the IOs, with the assertion that
they were unshaken in cross-examination and reliance was
placed on the affirmation of the statements made by the witnesses
under Section 161, which the witnesses did not speak themselves
in the box, at the trial. We cannot but observe that, though reliance
is said to be placed on the testimony of the IOs’ this would in fact
be a reliance placed on Section 161 statements as spoken of by
the IOs which is egregiously wrong. The High Court in paragraph
85 speaks of the affirmation of statements given by witnesses
6
(1962) 3 SCR 10
Page 16 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
examined by PW87 and records that though these were denied
by the witnesses, a reading of the cross-examination of PW87
indicates that she had not been discredited and the suggestions
made to her in cross were denied. The reliance placed on the so
called voluntary statements of the accused and the statements
made under Section 161 as recorded by PW87, based on the
decisions afore-cited cannot be countenanced.
18. As we noticed, the decisions cited by the High Court
regarding the testimony of the Police Officers before Court not
liable to be treated with distrust, was specifically with respect to
recoveries made under Section 27 and the seizures of contraband.
Seizure often is on surprise interception or on information
received, which principle cannot be imported to the affirmation of
the statements made by the witnesses during investigation under
Section 161; if they do not subscribe to it at trial. Merely for the IO
having spoken about such a statement having been made, it
cannot be treated as gospel truth. Nor can the voluntary
statements of the accused relied on except to the extent of the
discovery of fact, on information supplied, which would be a
Page 17 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
strong implicating circumstance if, and only if, there is a link
established to the crime.
19. In this context, we also have to specifically notice
paragraph 86 where some of the responses by PW87 were
discussed to add further credibility to her testimony; which in fact
runs counter to the prosecution case. The test identification
parade had not given any result, which was stated to be not an
argument against the prosecution. We perfectly agree, since even
if there was an identification at the stage of investigation, as per
the precedents, it only aids the investigation and cannot lead to a
conviction, unless the accused are identified in the box at the time
of trial, in Court, which in the present case has not occurred.
PW87 admitted to a suggestion that when she interrogated the
family members of the deceased, none talked about the existing
differences between the deceased and A1. The said admission
was rubbished on the ground that, to another suggestion in the
same vein, PW87 firmly denied it and this was because her
investigation revealed involvement of A1; a presumptuous finding
without any legal basis. What has been revealed in the
investigation, to the IO, has to be clearly established before Court
Page 18 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
by oral testimony or other evidence, failing which the Court
cannot base a conviction on the predilection of the IO that a
particular circumstance was revealed in the investigation.
20. The discrepancy regarding the statements made by her
with respect to the clothes of A5 and A6 was attempted to be
explained away. We would not dwell on the discrepancy since
nothing comes out of the recovery made under Section 27. The
recovery was made on a confession statement by A3 and not A5
or A6. Further, the statement attributed to A3 as spoken of by PW
87 marked as exhibit P 113 is “The machetes used in this murder is
kept in a gunny bag in the last room of the first floor of the
farmhouse of Renuka Prasad at Ajjavara-Addangaya-Mavinapalla.
The blood-stain clothes which were worn by Sharan and Bhavani
Shankar during the offence and the Kannada number plate which
was affixed to the Hero Honda Splendour bike during the offence
are kept near the water pump in a plastic cover; and if you come
with me, I will show them to you.” (sic) The reference to murder
and offence has to be completely eschewed and the fact
discovered is only the concealment of the weapons and the dress
which information supplied is by A3 who even according to the
Page 19 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
prosecution, was not involved in the crime proper, of murder.
Further, while recording the Mahazar for recovery, the shirt and
pants recovered were said to be of A5 and a shirt and jeans of A6.
Nothing was done to verify whether MO12 – MO15 items of dress
would fit A5 & A6. PW87 in fact admits that she did not ask A5 and
A6 to wear it nor was it verified from a tailor as to whether the
dress recovered would fit A5 & A6. There is no statement made by
A3 regarding the handing over of the weapons & dress, by A5 &
A6 to A3, which in any event would have to be proved
independently. The identification of A5 & A6, of their dress at the
time of recovery also is inadmissible. The mere recovery of dress
under Section 27, that also through a confession statement of an
alleged conspirator, does not implicate A5 or A6 who were
alleged to be the assailants who killed the deceased. Pertinently
the site or farm from which the recoveries were made was not
proved to be owned by A1.
21. Insofar as the crime is concerned, the eye witness PW8 and
the persons who reached the occurrence immediately thereafter,
PW1 and PW9, admittedly did not identify the accused. PW8 being
a young boy of 15 at the time of incident, the Division Bench was
Page 20 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
of the opinion that it was quite natural that he was not able to
identify the accused. It was also observed from his statement that,
it was the police who informed him about A5 & A6 having
committed the murder. As far as PW1 is concerned looking at the
evidence of PW9, it has been found that PW1 had stated a
deliberate falsehood before Court; which again, would not enable
the Court to look at his Section 161 statement. PW9 also did not
identify the accused and he spoke only of seeing one person
running away. Obviously since no reliance could be placed on the
evidence of PW8, PW1 & 9, to pin the crime on A5 & A6, the
Division Bench went on to look at the circumstances attempted to
be established at the trial; being the motive, the conspiracy, the
preparation, seizure of incriminating materials and the FSL report.
Before leaving the eye-witnesses testimony, we cannot but notice
that the prosecution never attempted to confront PW8 with the
clothes recovered as MO12 to MO15, said to have been worn by
A5 & A6, at the time when the crime was committed. Neither was it
shown to PW9, who at least spoke of having seen one person
running away from the scene.
Page 21 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
22. On the question of motive, the Division Bench examined
the evidence of PW4, the brother of A1, PW10, the wife of the
deceased and PWs 6, wife of PW4, PW7, their son & PWs 11 to 13,
relatives of A1 & PW4, all of whom turned hostile. The employees
in the institutions of PW4 & A1 also denied their former
statements of enmity between the brothers and the alleged ill will
of A1 against the deceased. PW4 denied the letter which was
produced as MO40 before Court. However, the Division Bench has
relied on MO40 and its contents on the ground that PW83 had
stated that PW4 came to the Police Station and handed over the
xerox copy of a 14-page letter. We are unable to accept the
reasoning of the Division Bench especially since MO40 was
confronted to PW4, when he was examined and he denied having
written such a letter. The letter hence was not proved, though
marked through the IO. Merely because PW83, the IO, submitted
that it was handed over to him by PW4 at the time of investigation,
that cannot be a reason to place reliance on MO40 or to look into
its contents to find enmity existing between A1 and PW4 and
threats having been levelled against the deceased, by A1.
Page 22 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
23. The High Court further places reliance on PW10's
testimony or rather the statements made by her in the Section 161
statement on the reasoning that the wife will definitely be aware
of the reasons behind the murder. She cannot be believed, if it is
deposed that she is not aware of anything, was the finding. A
statement made by PW10 that, she knew about A1 having insulted
and levelled threats against the deceased; confronted to PW10
but denied, was relied upon, finding that it was affirmed by PW83.
PW4 was also found to have resiled from his earlier statement
under Section 161 because the sister of PW4 and A1 had filed a
suit against them which was being jointly contested by them; a
mere surmise to place heavy reliance on the Section 161
statements made by PW4. According to us the motive insofar as
A1 having inimical feelings against the deceased, for having
meddled in the affairs of the institutions and the division of assets,
does not stand proved. PW4 only admitted to certain differences
between the brothers with reference to the running of a mess in
the college and there was no reference to the deceased in so far
as the specific dispute spoken of. We find absolutely no reason to
find the motive established.
Page 23 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
24. The next aspect dealt with by the High Court was on the
conspiracy and preparation for the crime. Rightly reliance was
7
placed on Mohd. Khalid v. State of W.B. wherein it was opined
that conspiracies are not hatched in the open and when done in
secrecy, it is very difficult for direct evidence to be produced
relating to the conspiracy and the Court would have to fall back
upon circumstantial evidence, which also has to be based on
inferences made from the various circumstances proved from the
acts and omissions of the accused. The Division Bench while
referring to the various witnesses who were produced to prove
the conspiracy first looked at the evidence of PW71, a Director of
one of the institutions, also the wife of A1 and PW72, who was an
employee in the same institution. PW71 though denied the
various documents alleged to have been produced before Court,
the Division Bench presumed that her testimony was a deliberate
falsehood intended to save her husband. PW72 had produced the
salary certificate of A2 issued by him in the capacity of in-charge
Principal of the Dental College. The aforesaid evidence was
relied on to find close acquaintance of A1 with A2 to A4, the
7
(2002) 7 SCC 334
Page 24 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
former being the employer of the latter three persons. Insofar as
the conspiracy hatched, the Court relied on the voluntary
statements made by A3, A5 and A6 before PW87 and relied on
8
Mehboob Ali v. State of Rajasthan . The testimony of PW87
regarding the sites, where discussions were held and money
changed hands, pointed out through the voluntary statements
made by A1, was relied on by the Division Bench. In addition,
Section 161 statements of PW61 to PW64 who had resiled from
their statements in the testimony before Court regarding A3
having been seen with A5 and A6 in a hotel on 28.04.2011, was
also relied upon. As far as the preparation made, since the
witnesses examined for proving the same also turned hostile, the
evidence of the police officers were reckoned and the story as
spoken of by the IOs were elaborately discussed, which in effect
is based on the Section 161 Statements made by the various
witnesses, before the police.
25. Section 162 of the Criminal Procedure Code, 1898 was
9
dealt with in Kali Ram v. State of H.P. to hold that the provision
makes it plain that ‘ the statement made by any person to a police
8
(2016) 14 SCC 640
9
(1973) 2 SCC 808
Page 25 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
officer in the course of an investigation cannot be used for any
purpose except for the purpose of contradicting a witness, as
mentioned in the proviso to sub-section (1) or for the purposes
mentioned in sub-section (2) ’ (sic para-17). The said principle was
reiterated with reference to Section 162 under the Criminal
10
Procedure Code, 1973 in R. Shaji v. State of Kerala . It was held
by this Court that ‘ statements under Section 161 Cr.P.C. can be used
only for the purpose of contradiction and statements under Section
164 Cr.P.C. can be used for both corroboration and contradiction’
(sic para-25). It was further held that though the object of the
statement of witness recorded under Section 164 is two-fold, there
is no proposition that if the statement of a witness is recorded
under Section 164 before a Magistrate, the evidence of such
witness in Court should be discarded. Rajendra Singh v. State of
11
U.P. was a case in which the High Court, as in the present case,
relied upon the statements of six witnesses, recorded by the IO
under Section 161 Cr.P.C., to enter a finding that the respondent
could not have been present at the scene of crime, as he was
present in the meeting of the Nagar Nigam at Allahabad. It was
10
(2013) 14 SCC 266
11
(2007) 7 SCC 378
Page 26 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
unequivocally held that ‘ a statement under Section 161 Cr.P.C. is
not a substantive piece of evidence. In view of the proviso to sub-
section (1) of Section 162 Cr.P.C., the statement can be used only for
the limited purpose of contradicting the maker thereof in the
manner laid down in the said proviso’ (sic para-6). It was found
that the High Court committed a manifest error of law in relying
upon wholly inadmissible evidence in recording a finding on the
alibi claimed by one of the accused.
26. The statements made by the IOs regarding the motive,
conspiracy and preparation comes out as the prosecution story, as
discernible from the Section 161 statements of various witnesses
who were questioned by the police during investigation; which
statements are wholly inadmissible under Section 162 of the
Cr.P.C. Merely because the IOs spoke of such statements having
been made by the witnesses during investigation, does not give
them any credibility, enabling acceptance, unless the witnesses
themselves spoke of such motive or acts of commission or
omission or instances from which conspiracy could be inferred as
also the preparation, established beyond reasonable doubt. We
are unable to find either the motive, the conspiracy or the
Page 27 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
preparation or even the crime itself to have been established in
Court, at the trial through the witnesses examined before Court.
The witnesses had turned hostile, for reasons best known to
themselves. The only inference possible, on the witnesses turning
hostile is that either they have been persuaded for reasons
unknown or coerced into resiling from the statements made under
Section 161 or that they had not made such statements before
police officers. Merely because the story came out of the mouth of
the IO, it cannot be believed and a legal sanctity given to it,
higher than that provided to Section 161 statements under Section
162 of the Cr.P.C.
27. The High Court has also relied on voluntary statements
made regarding the sites where discussions were held, and the
money was transferred, by A1 itself, to further find the conspiracy
8
relying on Mehboob Ali . That was a case in which, pursuing the
voluntary statements of the accused arrested, on the charge of
dealing in counterfeit notes, the kingpin was arrested, from whose
possession fake notes were recovered. In the present case but for
the accused having pointed out the various places where
allegedly discussions were held and money was transacted, there
Page 28 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
was no fact discovered from the site, or any recovery made of a
concealed object which could lead to an inference of a culpable
fact.
28. Now we come to the seizures and recoveries relied on by
the Court, again as spoken of by the Investigating Officer since
the independent witnesses who attested the mahazars turned
hostile. The significant recoveries made were of cash from the
possession of A2 to A6, the clothes alleged to have been worn by
A5 & A6 when the crime was committed, the weapons with which
the crime was committed and the vehicles in which the getaway
was carried out. As far as the vehicles are concerned even the
eyewitnesses, either PW1 or PW9, who were at the crime scene
immediately after the commission of the offence, did not speak of
A5 & A6 having fled on a motor bike. The specific allegation of
PW8, the eyewitness, in his FIS was that while himself and his
father were strolling, at the scene of occurrence, suddenly two
persons emerged from the bushes, hacked his father to death and
ran away, obviously on foot. This was the statement made by both
PW1 and PW9, the former of whom turned completely hostile, and
the latter did not speak of any motor bike. The recovery of the
Page 29 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
motor bike hence is of no consequence. The pickup van is said to
have been used for reaching the hide out, which is said to be a
farm. There was no incriminating material found from the pickup
van connecting this vehicle to the crime.
29. Insofar as the clothes are concerned, we cannot but notice
that the analysis report indicates that the recovered dress
materials had blood stains on it which were analyzed to be human
blood of ‘O’ group, and the post-mortem certificate indicates the
deceased to be of ‘O+’ group. It is trite that this alone cannot
implicate the accused since there should be a clear connection
established of the recovered items with the accused and the
crime. Especially in this case, where the clothes were not
recovered on the confession statement of A5 & A6, who are
alleged to have committed the crime. The weapons, as were the
clothes, were recovered on the confession statement of A3, from
the farm. Though, the High Court went on to find that A5 & A6 had
handed over the clothes and the weapons to A3 to hide, this has to
be proved by the prosecution and cannot be based on the so
called voluntary statements made by the accused. A3, A5 & A6
were arrested on the same day and they were taken together,
Page 30 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
allegedly in pursuance of the confession statement made by A3.
The identification said to have been made by A5 & A6 at the time
of recovery, to the police officers, again is not a confession made
under Section 27 and would be hit by Sections 25 and 26 of the
Evidence Act.
12
30. Athappa Goundan, In re , was relied on heavily in the
impugned judgment by the Division Bench to bring in the
confession under Section 27, to inculpate the accused other than
those who confessed, under Section 30 of the Evidence Act.
Therein the confession specifically spoke of the murder by the
person in police custody and also offered to produce two bottles,
a rope and a cloth gag, which was used to commit the murder.
These objects were recovered on the same being pointed out by
the accused. The Court opined that the objects produced, not
being incriminating in nature, their production would be
irrelevant unless they were connected with the murder; when
there was no evidence to connect the objects to the murder, apart
from the confession. It was hence held that any information which
12
1937 SCC OnLine Mad 76
Page 31 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
served to connect the object discovered with the offence charged
5
was admissible under Section 27. Pulukuri Kottaya held:
“Their Lordships are unable to accept this
reasoning. The difficulty, however great, of proving
that a fact discovered on information supplied by
the accused is a relevant fact can afford no
justification for reading into Section 27 something
which is not there, and admitting in evidence a
confession barred by Section 26. Except in cases in
which the possession, or concealment, of an object
constitutes the gist of the offence charged, it can
seldom happen that information relating to the
discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of
proof, and the other links must be forged in manner
allowed by law.”
(Paragraph 10)
13
31. Naresh Chandra Das v. King-Emperor , in a dissenting
judgment held that so much of the statements leading to the
discovery of a fact is admissible, but still, for the fact discovered
to be made relevant, the prosecution has to supply independent
evidence and for this purpose the confessional statement cannot
13
1941 SCC OnLine Cal 178
Page 32 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
be utilised, since it would offend Section 25 and Section 26 of the
Evidence Act. It was held that “If the prosecution cannot bring in
any evidence aliunde, connecting the fact discovered with the
offence, the prosecution may have to fall”. (sic)
5
32. Pulukuri Kottaya considering the impact of Section 27
held that the disclosure, under Section 27, is with reference to the
concealment of some object and not the object itself, which
object recovered must be connected to the crime to pin the guilt
on the accused, who was instrumental in making the recovery by
supplying the information of concealment. The confession under
Section 27, if speaking of the crime itself, that portion is not
admissible evidence, since it would offend Sections 25 and 26. We
extract paragraph 9 which dealt with the effect and impact of
Section 27:
“Section 27, which is not artistically worded,
provides an exception to the prohibition imposed by
the preceding section, and enables certain
statements made by a person in police custody to
be proved. The condition necessary to bring the
section into operation is that the discovery of a fact
in consequence of information received from a
person accused of any offence in the custody of a
Police officer must be deposed to, and thereupon so
much of the information as relates distinctly to the
fact thereby discovered may be proved. The section
seems to be based on the view that if a fact is
Page 33 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
actually discovered in consequence of information
given, some guarantee is afforded thereby that the
information was true, and accordingly can be safely
allowed to be given in evidence; but clearly the
extent of the information admissible must depend
on the exact nature of the fact discovered to which
such information is required to relate. Normally the
section is brought into operation when a person in
police custody produces from some place of
concealment some object, such as a dead body, a
weapon, or ornaments, said to be connected with
the crime of which the informant is accused. Mr.
Megaw, for the Crown, has argued that in such a
case the "fact discovered" is the physical object
produced, and that any information which relates
distinctly to that object can be proved. Upon this
view information given by a person that the body
produced is that of a person murdered by him, that
the weapon produced is the one used by him in the
commission of a murder, or that the ornaments
produced were stolen in a dacoity would all be
admissible. If this be the effect of Section 27, little
substance would remain in the ban imposed by the
two preceding sections on confessions made to the
police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature
that a person under police influence might be
induced to confess by the exercise of undue
pressure. But if all that is required to lift the ban be
the inclusion in the confession of information
relating to an object subsequently produced, it
seems reasonable to suppose that the persuasive
powers of the police will prove equal to the
occasion, and that in practice the ban will lose its
effect. On normal principles of construction their
Lordships think that the proviso to Section 26, added
by Section 27, should not be held to nullify the
substance of the section. In their Lordships' view it is
fallacious to treat the "fact discovered" within the
section as equivalent to the object produced; the
Page 34 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
fact discovered embraces the place from which the
object is produced and the knowledge of the
accused as to this, and the information given must
relate distinctly to this fact. Information as to past
user, or the past history, of the object produced is
not related to its discovery in the setting in which it
is discovered. Information supplied by a person in
custody that "I will produce a knife concealed in the
roof of my house" does not lead to the discovery of a
knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge; and if the knife is proved to have been
used in the commission of the offence, the fact
discovered is very relevant. But if to the statement
the words be added "with which I stabbed A", these
words are inadmissible since they do not relate to
the discovery of the knife in the house of the
informant.”
(underlined by us for emphasis)
14
33. State (NCT of Delhi) v. Navjot Sandhu traced the history
5
of case law and described Pulukuri Kottaya as a locus classicus
which set at rest much of the controversy centring around the
interpretation of Section 27. The first requirement, according to
the learned Judges was that the IO should depose that he
discovered a fact in consequence of the information received
from an accused person in police custody, which fact was not in
the knowledge of the police officer. The information or disclosure
should necessarily be free from any element of compulsion and
14
(2005) 11 SCC 600
Page 35 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
only so much of the information as relating distinctly to the fact
thereby discovered can be proved and nothing more. The Section
explicitly clarifies that confession is not taboo, but the
confessional part which is admissible is only such information or
part of it, which relates distinctly to the facts discovered, by
means of the information furnished. The rationale behind the
provision was held to be that, if a fact is discovered in
consequence of the information supplied, it offers some
guarantee that the information is true and can therefore, be safely
allowed to be admitted in evidence as an incriminating
circumstance against the accused.
15
34. In H.P. Admn. v. Om Prakash , there was a recovery made
of a dagger from under a stone, on the concealment being
informed to the police and the accused also pointed out the
person from whom he had purchased the dagger. While the
former statement was admissible under Section 27, the latter was
held to be inadmissible. The concealment of a knife, which the
police were not aware of, when discovered by the information
supplied, then the information of concealment is reliable.
15
(1972) 1 SCC 249
Page 36 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
However, if the person from whom the knife is purchased is
pointed out, it cannot be said to be discovered, if nothing is found
or recovered from him, as a consequence of the information
furnished by the accused.
35. The State in its written submission has relied on State of
16 17
Maharashtra v. Damu , Rumi Bora Dutta v. State of Assam ,
18
Raja v. State of Haryana , to buttress its contention regarding the
16
admissibility of the disclosure statements. In Damu , the dead
body was recovered from a site, to which site, it was carried by
nd rd
the 2 & 3 accused, in the former’s motorcycle and thrown in the
canal. Since the dead body was recovered prior to the disclosure
made, the statement was found to be inadmissible under Section
27. But a broken piece of glass was recovered from the spot,
pointed out by A3, which correctly fitted into the broken tail lamp
of the motorcycle recovered from the house of A2. This provided
credence to the confession statement of the accused, despite the
dead body having been recovered, antecedent to the information.
14 15 16
Navjot Sandhu (supra), affirmed Om Prakash and Damu and
held that “discovery of a fact would not comprehend a pure and
16
(2000) 6 SCC 269
17
(2013) 7 SCC 417
18
(2015) 11 SCC 43
Page 37 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
simple mental fact or state of mind relating to a physical object,
dissociated from the recovery of a physical object.” (sic)
36. In this context, we must notice Pandurang Kalu Patil v.
19 5
State of Maharashtra , wherein Pulukuri Kottaya was followed
and it was reiterated that the fact discovered is not equivalent to
the object produced. The information regarding concealing of the
article of the crime, it was held, does not lead to discovery of the
article but this leads to the discovery of the fact that the article
was concealed at the indicated place, within the knowledge of the
accused.
17
37. In Rumi Bora Dutta v. State of Assam , the confession of
the accused led to the discovery of a knife and skipping rope and
the medical evidence corroborated the fact that the deceased
died because of strangulation and there was also a stab injury on
his chest. The weapons concealed by the accused and recovered
on their information had a direct nexus with the injuries found in
18
the post-mortem report. In Raja v. State of Haryana , there was a
recovery of knife and blood-stained clothes and ashes of a burnt
blanket. The blood-stained clothes and the weapons were sent to
19
(2002) 2 SCC 490
Page 38 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
the FSL, whose report clearly indicated blood stains on the
clothes and the knife, despite absence of matching of the blood
20
group. Relying on John Pandian v. State , it was held that the
accused has not offered any explanation as to how the human
blood was found on the clothes and the knife, which was an
incriminating circumstance.
38. With the above principles in mind when we look at the
recoveries made, even if the testimonies of the IOs are believed,
that there was an unexplained stash of money recovered from the
person and the residential accommodations of A2 to A6, they
were not recoveries under Section 27. The recovery was akin to a
seizure, not one made on the information supplied or confession
recorded. Further, there is nothing connecting the cash with the
crime. As we held, even the Mahazar did not carry out a proper
inventory, of the cash recovered and the identification made in
Court, was of the bundles in which the cash was seized. A
question arises as to how the accused came in possession of such
huge amounts of cash, which if found to be beyond their means
and sources of income, proceedings will have to be initiated
20
(2010) 14 SCC 129
Page 39 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
elsewhere and unless there is a connection clearly established of
the money having been transacted, in furtherance of the
conspiracy, which is totally lacking in the above case, the
recovery cannot aid the prosecution.
39. The clothes and machetes allegedly, worn by A5 & A6 and
used by them to commit the crime, were recovered on the
confession statement of A3, the alleged conspirator. True, there
were blood stains on the clothes and the machetes, which were
found to be of ‘O’ group, matching the blood group of the accused
as found from the post-mortem report. A3, we have pertinently
observed is not alleged to have committed the crime proper, i.e.
the hacking of the deceased victim. There is also no independent
evidence to prove that A5 & A6 handed over the clothes and the
machetes to A3. The confession statement of A3 that the clothes
and machetes were handed over to him by A5 & A6 is the history,
which has to be cogently proved by evidence aliunde. The fact
discovered is the concealment of the clothes and the machetes,
by A3, which fact of concealment has to be connected to the
actual crime. In the present case neither are the clothes or
machetes connected to A5 & A6 who are alleged to have
Page 40 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
committed the crime nor is A3, an alleged conspirator even
accused of having been involved in the crime proper, that is the
murder of the deceased. Further, it was not even verified whether
the clothes recovered fit A5 & A6, in which context they owe no
explanation insofar as the blood found on the clothes.
Confessions allegedly made by A1 regarding the sites where the
conspiracy was hatched and the money transacted does not lead
to any discovery of fact. The narration about the conspiracy and
the money transactions are not admissible and the mere pointing
out of two sites does not lead to any discovery of fact, when the
narration is eschewed.
40. The High Court has laboured on Section 30 of the Evidence
Act to hold that the confession of a co-accused can be used
against the other accused. It was held, Section 30 would bring
within its ambit even a Section 27 confession in addition to an
extra-judicial confession or one made under Section 164 of the
Cr.P.C.; the last two of which is totally absent in the present case.
In so far as Section 30 is concerned Kashmira Singh v. State of
21
Madhya Pradesh , held so :
21
(1952) 1 SCC 275
Page 41 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
“The proper way to approach a case of this kind
is, first, to marshal the evidence against the
accused excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is
capable of belief independently of the confession,
then of course it is not necessary to call the
confession in aid. But cases may arise where the
Judge is not prepared to act on the other evidence
as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event,
the Judge may call in aid the confession and use it
to lend assurance to the other evidence and thus
fortify himself in believing what without the aid of
the confession he would not be prepared to
accept.”
41. A Constitution Bench in Haricharan Kurmi vs. State
22
of Bihar , held that a confession as mentioned in Section
30 is not evidence under Section 3 of the Evidence Act. We
extract from paragraph 13 of the said decision:
“… The result, therefore, is that in dealing with a
case against an accused person, the court cannot
start with the confession of a co-accused person;
it must begin with other evidence adduced by the
prosecution and after it has formed its opinion
with regard to the quality and effect of the said
evidence, then it is permissible to turn to the
confession in order to receive assurance to the
conclusion of guilt which the judicial mind is
about to reach on the said other evidence. That,
briefly stated, is the effect of the provisions
contained in Section 30. The same view has been
22
(1964) 6 SCR 623
Page 42 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
expressed by this Court in Kashmira Singh v. State
(1952) 1 SCC 275
of Madhya Pradesh where the decision
of the Privy Council in Bhuboni Sahu Case has
been cited with approval.”
12
42. Athappa Goundan’s case was held to be wrongly
5
decided, by the Privy Council in Pulukuri Kottaya . When even
the recovery made based on a confession under Section 27, by
itself cannot inculpate the person who made such a confession, if
there is no independent evidence otherwise connecting the fact
discovered to the crime, there is no question of such a confession
being made use of, to inculpate the other accused under Section
30 of the Evidence Act.
43. Before leaving the impact and effect of Section 27 and
Section 30, we cannot but reiterate the caution expressed in
19
Pandurang Kalu Patil wherein was impugned a judgment of a
Division Bench of the High Court of Bombay which disagreed
5
with the ratio in Pulukuri Kottaya . In that context this Court
referred to the judgment in State v. Chhaganlal Gangaram
23
Lavar and an extract was made from page 6 paragraph 10 which
is as below:
23
1954 SCC OnLine Bom 69
Page 43 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
“So long as the Supreme Court does not take a
different view from the view taken by the Privy
Council, the decisions of the Privy Council are still
binding upon us, and when we say that the decisions
of the Privy Council are binding upon us, what is
binding is not merely the point actually decided but
an opinion expressed by the Privy Council, which
opinion is expressed after careful consideration of
all the arguments and which is deliberately and
advisedly given.”
5
44. It was held that Pulukuri Kottaya was considered and
tested by this Court time and again and on all such occasions, its
14
ratio was re-affirmed, lately, as we noticed in Navjot Sandhu . The
attention of the Division Bench of the High Court of Karnataka
5
obviously was not drawn to the decision in Pulukuri Kottaya , of
the Privy Council, affirmed and reaffirmed by the Supreme Court
of India, in which, the Full Bench decision of the Madras High
12
Court in Athappa Goundan , relied on in the impugned
judgment, had been overruled.
45. In the present case, we have already held that the
confession under Section 27 cannot be relied upon and there is
no question of any aid being drawn from it to implicate the other
accused. As far as the sites pointed out by A1, we have found that
Page 44 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
it did not lead to any discovery of a fact and it is hit by Section 25
& 26 of the Evidence Act.
46. We cannot but observe that the judgment of the High
Court reversing the order of acquittal of the Trial Court proceeds
on mere surmises and conjectures relying wholly on the
testimony of the Investigating Officers, who merely regurgitated
the statements recorded under Section 161 and the voluntary
statements of the accused. As has been rightly pointed out in
24
Ramesh v. State of Haryana when the statements recorded
under Section 161 of the Code of Criminal Procedure is resiled
from, there arises a possibility that the police coerced such
statements, but considering the huge prevalence of such
instances, as in the present case, of the entire witnesses turning
hostile, there could be various other factors also. It could be for
fear of deposing against the accused, political pressure, pressure
from family or society and even instances of monetary
consideration. We do not think that the High Court could have
relied on the decision to hold that the reason for the enblock
hostility of witnesses at trial, could only be due to the influence
24
(2017) 1 SCC 529
Page 45 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
wielded by the accused who had even persuaded the wife of the
deceased to turn hostile; which reasoning is presumptuous and
fallacious.
47. We quite understand the consternation of the learned
Judges, in the cold-blooded murder of a person, carried out in
front of his own son where the investigation though elaborate, it
collapsed miserably at the trial, where the prosecution witnesses;
all of them, turned hostile. We share the consternation of the
learned Judges but that is no reason for us to rely on Section 161
statements or the story scripted by the investigating agency
based on the so called voluntary statements and the recoveries
made, which the prosecution failed to prove to have a nexus with
the crime. We also notice that there was a test identification
parade carried out, in which also PW1, PW8 and PW9 failed to
identify the assailants. We make this observation fully conscious
of the principle that a TIP is only to aid the investigation but
keeping in mind the fact that it could always lend support to an
identification made in Court, which unfortunately in the present
case was not made either in Court or at the stage of investigation.
Page 46 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
We find absolutely no reason to sustain the conviction entered by
the High Court, reversing the order of acquittal.
1
48. Though Chandrappa was specifically noticed by the High
Court, the principles were not rightly appreciated, while setting
aside the order of acquittal. It has been emphasized that when
there are two reasonable views possible from the evidence led,
the one favouring the accused should be adopted, especially
since the presumption of innocence of the accused until proved
guilty, a fundamental tenet of criminal jurisprudence, stands
further strengthened by the order of acquittal. In the present case,
we are afraid that there are not even two views coming forth from
the evidence. The only view that comes forth is that the
prosecution completely failed to prove the allegations raised and
charged against each of the accused, more by reason of all the
witnesses paraded before Court, at the trial, having turned hostile
for reasons unknown. Whatever be the reason behind such
hostility, it cannot result in a conviction, based on the testimony of
the Investigating Officers which is founded only on Section 161
statements and voluntary statements of accused; the former
Page 47 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
violative of Section 162 of the Cr.P.C and the latter in breach of
Sections 25 & 26 of the Evidence Act.
49. We cannot but say that the High Court has egregiously
erred in convicting the accused on the evidence led and has
jumped into presumptions and assumptions based on the story
scripted by the prosecution without any legal evidence being
available. Truth is always a chimera and the illusion surrounding
it can only be removed by valid evidence led, either direct or
indirect, and in the event of it being circumstantial, providing a
chain of circumstances with connecting links leading to the
conclusion of the guilt of the accused and only the guilt of the
accused, without leaving any reasonable doubt for any
hypothesis of innocence. We can only accede to and share the
consternation of the Division Bench of the High Court, which
borders on desperation, due to the futility of the entire exercise.
That is an occupational hazard, every judge should learn to live
with, which cannot be a motivation to tread the path of
righteousness and convict those accused somehow, even when
there is a total absence of legal evidence; to enter into a purely
moral conviction, total anathema to criminal jurisprudence. With a
Page 48 of 49
Crl. A. Nos. 3189-90 of 2023 etc.
heavy heart for the unsolved crime, but with absolutely no
misgivings on the issue of lack of evidence, against the accused
arrayed, we acquit the accused reversing the judgment of the
High Court and restoring that of the Trial Court.
50. Criminal Appeals are allowed.
51. The accused shall be released forthwith, if in custody and
not required in any other case and if already released on bail,
their bail bonds shall stand cancelled.
52. Pending applications, if any, shall stand disposed of.
….……….……………………. J.
(SUDHANSHU DHULIA)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
MAY 09, 2025.
Page 49 of 49
Crl. A. Nos. 3189-90 of 2023 etc.