As per case facts, a 55-year-old woman went missing after being seen by girls who directed two youths inquiring about her into a forest. Her dead body was later found, ...
2026 INSC 578 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1342-1343 OF 2018
MEHTAB ….APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND ….RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.(S) 1340-1341 OF 2018
J U D G M E N T
Mehta, J.
1. Heard.
BACKGROUND OF THE CASE
2. The appellants herein
1 were tried by the learned
Special Judge (SC/ST Act), Dehradun,
2 in Special
Sessions Trial No. 3 of 2013 for offences punishable
under Sections 302, 376(2)(g), 201 read with Section
1
Accused No. 1-Mehtab (Appellant in Criminal Appeal Nos. 1342-1343 of
2018) and Accused No. 2-Sushil @ Bhura (Appellant in Criminal Appeal
Nos. 1340-1341 of 2018). Collectively, they are being referred to as
“appellants”.
2
Hereinafter, being referred to as ‘trial Court’.
2
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
34 of the Indian Penal Code, 1860
3 and Section 3(2)(v)
of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
4. Vide judgment
dated 23
rd January, 2014, the trial Court convicted
the appellants for the offences punishable under
Section 302 read with Section 34 and Section
376(2)(g) of IPC as well as Section 3(2)(v) of SC/ST
Act. The appellants were acquitted of the charge
under Section 201 read with Section 34 of IPC. By
order of sentence dated 27
th January, 2014, the
appellants were sentenced in the terms indicated
below: -
Section Sentence
Section 302 read with
Section 34 of IPC
Death Sentence along with fine of
Rs.5,000/- and in default to
undergo 6 months Simple
Imprisonment.
Section 376(2)(g) of
IPC
Life Imprisonment along with fine
of Rs.5,000/- and in default to
undergo 4 months Simple
Imprisonment.
Section 3(2)(v) of
SC/ST Act
Life Imprisonment along with fine
of Rs.5,000/- and in default to
undergo 4 months Simple
Imprisonment.
3
For short, ‘IPC’.
4
For short, ‘SC/ST Act’.
3
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
3. Being aggrieved, the appellant s preferred
separate criminal appeals
5 before the High Court of
Uttarakhand at Nainital
6 for assailing the conviction
and the sentences awarded to them. The trial Court
also forwarded a reference
7 under Section 366 of the
Code of Criminal Procedure, 1973
8 for confirmation
of the death sentence awarded to the appellants. The
learned Division Bench of the High Court, vide
common judgment dated 27
th April, 2018, partly
allowed the appeals preferred by the appellants by
acquitting them of the charge under Section 3(2)(v) of
the SC/ST Act, while maintaining their conviction
and sentences for the remaining offences. The High
Court also answered the death reference in the
affirmative and confirmed the sentence of death
awarded to the appellants by the trial Court. The said
common judgment of the High Court is the subject
matter of challenge in these appeals by special leave.
4. At the outset, it may be noted that this Court,
vide order dated 29
th October, 2018 granted leave and
5
Criminal Appeal Nos. 49 and 60 of 2014.
6
Hereinafter, referred to as ‘High Court’.
7
Criminal Reference No. 1 of 2014.
8
Hereinafter, referred to as ‘CrPC’.
4
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
stayed the execution of the death sentence pending
further orders.
FACTUAL MATRIX
5. Succinctly stated, the prosecution case in a
nutshell is that on 29
th December, 2012, at about
2:00 p.m., Munni Devi, a 55-year-old woman and
mother of the complainant, Anil Chauhan (PW-1)
9,
had gone to the forest for grazing goats. At about 3:00
p.m., three girls who had gone near the forest for
collection of grass were approached by two unknown
youths, who enquired about the whereabouts of a
“Pahadan”. Initially, the girls feigned ignorance,
however, later presuming that the enquiry pertained
to Munni Devi, they pointed towards the general
direction in which she had gone along with the cattle.
Munni Devi, did not return home by 5:00 p.m. and
the goats returned unattended, upon which, the
complainant (PW-1) became alarmed and he along
with Guddu (cousin), Vinay (nephew), Charan, and
others, began searching for her at around 5:30 p.m.
6. While the search was going on, information was
received at about 8:00 p.m., that one Bhardwaj had
9
Hereinafter, being referred to as ‘complainant (PW-1)’.
5
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
discovered the dead body of Munni Devi
10 lying in
bushes near a water channel. Upon receiving the said
information, the complainant (PW-1) along with a few
others proceeded to the spot where the dead body of
the deceased-victim was found. It is alleged that there
were no clothes on the lower part of her body and that
there were bite marks on her face and body, which
were smeared with blood. One Bharadwaj, who had
noticed the dead body, immediately informed the
police through a mobile phone, whereupon the
information about the murder came to be recorded in
the General Diary.
7. Pursuant thereto, the police officials reached
the place of occurrence. However, owing to darkness,
gathering of a large crowd and the prevailing agitated
atmosphere, the police placed the dead body in a
private vehicle and shifted the same to the nearby
police station, where inquest proceedings
11 were
conducted. Thereafter, a written report (tehrir)
12
regarding the incident was lodged by the complainant
(PW-1) at Reporting Chowki Sabhawala, Police
10
Hereinafter, being referred to as ‘deceased-victim’.
11
Exhibit Ka-2.
12
Exhibit Ka-1.
6
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Station Sahaspur, at about 11:45 p.m. on the same
day, on the basis whereof an FIR bearing Crime No.
255 of 2012
13 for offences punishable under Sections
302 and 376 of IPC came to be registered against
unknown persons.
8. The prosecution further alleges that one of the
three girls, Anusuiya (PW-2), who had earlier directed
the two unknown youths towards the deceased -
victim, received information regarding the murder at
about 8:30 p.m. on the same day and, being a close
relative residing nearby, she raised a suspicion that
the said two youths were involved in the murder.
9. On the following day, i.e., 30
th December, 2012,
at about 8:30 a.m., the police team again visited the
place of occurrence and during inspection recovered
a small piece of cloth, allegedly a pocket torn from a
shirt, from the crime scene.
14 Along with the said
piece of cloth, blood-smeared and plain soil were also
collected.
15 On the very same day, Anusuiya (PW-2)
informed the police regarding the two unknown
youths who had enquired about the deceased-victim.
13
Exhibit Ka-7.
14
Exhibit Ka-4.
15
Exhibit Ka-3.
7
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Thereafter, an expert was summoned for preparation
of sketches of the said youths on the basis of the
description furnished by Anusuiya (PW-2), which
sketches were subsequently circulated in the locality,
pasted on notice boards and also published in
newspapers.
10. It is further the case of the prosecution that on
3
rd January, 2013, the appellants were apprehended
while moving on a road near the forest area and were
thereafter taken to the police station.
16 During
interrogation, both the accused allegedly broke down
and confessed to the crime. It is alleged that
pursuant to the disclosure statement of Accused
No.1-Mehtab, his shirt
17 was seized, whereas
pursuant to the disclosure statement of Accused
No.2-Sushil @ Bhura, a salwar, earrings and nose
pin allegedly belonging to the deceased-victim were
recovered from bushes situated near the place where
the dead body had been found.
18
11. The dead body of the deceased -victim was
subjected to post-mortem examination by a board
16
Exhibit Ka-39.
17
Exhibit Ka-32.
18
Exhibit Ka-5.
8
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
comprising three doctors including Dr. Mahabir
Singh (PW-3).
19 The seized articles, except the salwar,
were forwarded for forensic examination. Upon
completion of the investigation, the Investigating
Officer submitted a chargesheet against the
appellants for the offences punishable under
Sections 302, 376(2)(g), 201 read with Section 34 of
IPC and Section 3(2)(v) of SC/ST Act.
20
12. Since the offences alleged were exclusively
triable by the Court of Sessions, the learned Chief
Judicial Magistrate, Dehradun, vide order dated 25
th
April, 2013, committed the case to the Court of
Sessions for trial, from where the matter was
transferred to the trial Court. Thereafter, the trial
Court on 15
th May, 2013, framed charges against the
appellants for the offences punishable under
Sections 302, 376(2)(g), 201 read with Section 34 of
IPC and Section 3(2)(v) of SC/ST Act. The appellants
abjured their guilt and sought trial.
13. In order to bring home the charges against the
appellants, the prosecution examined as many as 19
witnesses and exhibited 44 documents. Anil
19
Exhibit Ka-6.
20
Exhibit Ka-44.
9
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Chauhan (PW-1; complainant and son of the
deceased-victim) deposed regarding his mother
having gone to the forest for grazing goats, the
subsequent search conducted by him and the
recovery of the dead body. Anusuiya (PW-2) and Alka
Chauhan (PW -4) were examined as material
witnesses of fact regarding the circumstance of the
appellants enquiring about the whereabouts of the
deceased-victim and proceeding towards the forest in
the direction where she had gone. Dr. Mahavir Singh
(PW-3), a member of the medical board that
conducted the post-mortem examination and proved
the post-mortem report noting multiple ante-mortem
injuries on the body of the deceased-victim. Gajendra
Singh (PW-5) and Narayan Singh (PW-6) supported
the prosecution case regarding recoveries effected
from the place of occurrence including blood-stained
soil, salwar, ornaments and the torn piece of pocket.
Constable Basudev Singh Rana (PW -7) proved the
chik FIR, whereas Dinesh Chauhan (PW-8) proved the
written report and panchnama. Head Constable
Sanjay Singh Negi (PW-9), Sanjay Kumar (PW-14),
Constable Vijendra Kumar (PW-17) and Constable
Sushil Kumar (PW-18) were examined as formal
10
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
witnesses. Sub-Inspector Pramod Sah (PW-10), Sub-
Inspector Surya Bhushan Negi (PW -16)
21 and
Superintendent of Police (City), Dr. Jagdish Chandra
(PW-19), the Investigating Officers, deposed
regarding the investigation conducted by them
including preparation of the site plan, arrest of the
appellants and the recoveries allegedly effected at
their instance. Bhakt Darshan (PW -11) and Dr.
Manoj Kumar Agarwal (PW -13) proved the forensic
science laboratory reports, including the matching of
the torn pocket piece with the shirt allegedly
belonging to Accused No. 1-Mehtab and the blood
group detected thereon. Dr. B.S. Aswal (PW-12)
medically examined the appellants. Rakesh Kashyap
(PW-15), was declared hostile and was cross-
examined by the prosecution.
14. Upon conclusion of the prosecution evidence,
the statements of the appellants were recorded under
Section 313 of CrPC, wherein they denied the
allegations levelled against them by the prosecution
and claimed to have been falsely implicated. Accused
No. 1-Mehtab stated that he did not know the co-
21
Hereinafter, being referred to as “Station Officer (PW-16)”.
11
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
accused (Accused No. 2-Sushil @ Bhura) and had
seen him for the first time in jail. Accused No. 2-
Sushil @ Bhura also denied the prosecution case and
claimed that on the date of the incident, he was
engaged in loading sand from the Asan River along
with his brother Ashok. The appellants examined
Ashok (DW-1)
22, Tahir Hasan (DW-2)
23, and Satish
Kumar (DW-3)
24 in support of their defence.
15. The trial Court, upon appreciation of the
submissions advanced by the learned Public
Prosecutor and the defence counsel and upon
detailed scrutiny of the oral as well as documentary
evidence available on record, found the appellants
guilty of the offences punishable under Section 302
read with Section 34 and Section 376(2)(g) of IPC as
also Section 3(2)(v) of SC/ST Act, vide judgment of
conviction dated 23
rd January, 2014 passed in
Special Sessions Trial No. 3 of 2013. However, the
appellants came to be acquitted of the charge under
Section 201 read with Section 34 of IPC. Vide
separate order of sentence dated 27
th January, 2014,
22
Brother of Accused No. 2-Sushil @ Bhura.
23
Father of Accused No.1-Mehtab.
24
Brother-in-law of Accused No. 2-Sushil @ Bhura.
12
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
the trial Court sentenced the appellants to death for
the offence punishable under Section 302 read with
Section 34 IPC along with fine of Rs.5,000/- each and
in default thereof, to undergo six months’ simple
imprisonment. For the offence punishable under
Section 376(2)(g) IPC and Section 3(2)(v) of the SC/ST
Act, the appellants were sentenced to undergo
imprisonment for life along with fine of Rs.5,000/-
each and in default thereof, to undergo four months’
simple imprisonment.
16. Being aggrieved by the judgment of conviction
and order of sentence passed by the trial Court, the
appellants preferred separate criminal appeals under
Section 374(2) of CrPC before the High Court
assailing their conviction and the sentences imposed
upon them. Simultaneously, the trial Court
submitted a reference under Section 366 of CrPC
seeking confirmation of the death sentence awarded
to the appellants. The learned Division Bench of the
High Court, vide common judgment dated 27
th April,
2018, partly allowed the appeals preferred by the
appellants by acquitting them of the charge under
Section 3(2)(v) of the SC/ST Act, while affirming their
conviction and sentences for the remaining offences.
13
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
The High Court also answered the death reference in
the affirmative and confirmed the sentence of death
awarded to the appellants by the trial Court. The said
common judgment passed by the High Court is
subject matter of challenge in the present appeals by
way of special leave.
SUBMISSIONS ON BEHALF OF THE ACCUSED-
APPELLANTS: -
17. Mr. A. Sirajudeen, learned senior counsel
appearing for the appellants vehemently and
fervently contended that the entire case of the
prosecution is false, fabricated and riddled with
material contradictions, improbabilities and serious
investigative lapses. It was urged that the case rests
entirely on circumstantial evidence and yet, the
clutch of circumstances relied upon by the
prosecution fails to form a complete chain pointing
unerringly towards the guilt of the appellants.
According to learned counsel, the evidence of the
material prosecution witnesses is untrustworthy,
inconsistent and miserably falls short of the standard
required to sustain the conviction recorded by the
Courts below.
14
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
18. It was contended that the prosecution has failed
to establish any credible motive for the commission
of the alleged offences. According to the prosecution,
the appellants committed rape upon the deceased-
victim for satisfaction of their carnal desire and
thereafter murdered her when she resisted. However,
no credible evidence was led in support of this theory.
Learned counsel referred to the testimony of the
police officials and medical jurists to urge that none
of the doctors had conclusively opined that t he
deceased-victim had been subjected to rape. It was
further pointed out that Dr. B.S. Aswal (PW-12), the
doctor who medically examined Accused No. 1-
Mehtab, had specifically deposed that owing to a
medical condition, it was not possible for him to
engage in sexual intercourse.
19. Learned senior counsel further contended that
the forensic evidence completely belies the
prosecution theory regarding rape. It was submitted
that except for traces of semen detected in the vaginal
swab, no semen stains were found on any of the
seized articles. DNA examination was not conducted
to scientifically establish the identity of the
15
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
perpetrators of the crime. Learned counsel urged that
scientifically, semen may remain in the vaginal tract
of a woman for four to five days after intercourse and
therefore, in the absence of any determination
regarding the age of the semen, no inference could be
drawn that the deceased-victim had been subjected
to sexual intercourse proximate to the time of death
or that the semen belonged to either of the
appellants.
20. Learned counsel next assailed the prosecution
case regarding recovery of the shirt pocket allegedly
found near the dead body and its subsequent
matching with the shirt of Accused No. 1-Mehtab.
Referring to the testimony of the expert from the
Forensic Science Laboratory, Mr. Bhakt Darshan
(PW-11), it was contended that the pocket had not
been torn during a scuffle as would ordinarily be
expected if it had become detached during the
incident but appeared to have been carefully
unpicked, since the stitching at the corners remained
intact and no tearing of the cloth was noticed. It was
argued that, had the pocket been detached in course
of a violent struggle, the shirt fabric at the stitched
16
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
portions would undoubtedly have been torn. The
absence of such tearing, therefore, suggests
deliberate removal and possible planting of the
pocket at the spot to falsely implicate the appellants.
21. Learned counsel further submitted that the
prosecution relied upon the alleged presence of blood
group “O” on the shirt pocket recovered from the
place of occurrence and the fact that the deceased-
victim also had blood group “O”. The prosecution,
however, never determined the blood group of the
appellants. Since group “O” is a common blood
group, the mere presence of blood of that group on
the recovered article cannot, by itself, be treated as
an incriminating circumstance against the
appellants. Furthermore, since the very recovery of
the shirt pocket is doubtful, the matching of blood
group is inconsequential.
22. Assailing the “last seen together” theory as
propounded by the prosecution, learned senior
counsel submitted that the evidence of Anusuiya
(PW-2) and Alka Chauhan (PW-4) is wholly unreliable
and unworthy of belief. It was urged that the
witnesses had allegedly seen two unknown youths
17
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
proceeding towards the forest at about 3:00 p.m. on
the date of occurrence. However, admittedly, the said
youths were not previously known to the witnesses.
Learned counsel pointed out glaring inconsistencies
regarding the preparation of sketches of the suspects
on the basis whereof, the appellants were allegedly
traced and arrested. It was submitted that, on one
hand, Anusuiya (PW-2) stated that, on 30
th
December, 2012 itself, she had disclosed the facial
features of the suspects to the police and that a
sketch artist had allegedly prepared sketches at her
residence, whereas, on the other hand, Station
Officer (PW-16) deposed that statements of Anusuiya
(PW-2) and the other girls were recorded much later.
Thus, according to learned counsel, the very genesis
of the process relating to the preparation of sketches
of suspected accused persons becomes doubtful.
23. It was further contended that the sketch artist
who had allegedly prepared the sketches was neither
cited as a witness nor examined during trial. Even his
statement under Section 161 of CrPC was not
recorded. The investigating officials themselves were
unable to disclose the identity of the sketch artist.
18
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Learned counsel urged that although the prosecution
claimed that the sketches were circulated in the
locality and published in newspapers, no
documentary evidence pertaining to the newspaper
publication or the General Diary entry corroborating
this theory was produced to substantiate the said
claim. Accordingly, learned counsel submitted that
the entire exercise relating to the preparation and
circulation of the sketches remains unsubstantiated
and devoid of evidentiary credibility.
24. Learned senior counsel also contended that
despite the fact that the appellants were allegedly
apprehended only because their faces matched with
the sketches prepared at the instance of Anusuiya
(PW-2) and Alka Chauhan ( PW-4), no Test
Identification Parade
25 was conducted during
investigation. The appellants were identified by the
witnesses for the first time in Court after a
considerable lapse of time. It was urged that
immediately after the arrest, the appellants were not
kept baparda and were shown to the witnesses by the
police and hence, the dock identification loses all
25
For short, “TIP”.
19
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
evidentiary significance. According to learned
counsel, failure to conduct a TIP is fatal to the
prosecution case, particularly when the appellants
were previously unknown to the witnesses.
25. Learned counsel further submitted that the
place from where the dead body of the deceased-
victim was recovered was situated deep inside the
forest with multiple access routes leading thereto. No
witness deposed to having seen the appellants
together with or nearby the deceased-victim around
the probable time of occurrence. Merely because
certain persons were allegedly seen proceeding
towards the forest, it cannot be inferred that they
were solely responsible for the offence committed
deep inside the forest area. It was, thus, urged that
the circumstance of “last seen together” remains
wholly unproved and unsubstantiated.
26. It was further contended on behalf of the
appellants that the prosecution has failed to lead any
evidence whatsoever to establish that the appellants
were known to each other or were acting in concert
prior to the alleged occurrence. Learned counsel
submitted that apart from the bald allegation that
20
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
both appellants were seen together in the forest, no
material was brought on record to show any prior
association, acquaintance, common intention or
meeting of minds between them. No witness deposed
to having seen the appellants together before the date
of the incident, nor was any evidence collected during
investigation indicating any relationship, friendship
or association between them. It was urged that in the
absence of such evidence, the prosecution’s theory
that the appellants jointly committed the offences
pursuant to a common intention is rendered highly
doubtful and lacks any factual foundation.
27. Learned counsel further pointed out that
although photographs of the place of occurrence and
the appellants were admittedly taken by the police,
no photograph depicting the alleged pocket either at
the spot or on the shirt of Accused No. 1-Mehtab was
produced. Head Constable Sanjay Singh Negi (PW-9)
and Station Officer (PW-16), i.e., one of the
Investigating Officers admitted in the cross -
examination that no such photographs were taken. It
was also submitted that though the pocket was
allegedly seized on 30
th December, 2012 and the shirt
21
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
on 3
rd January, 2013, both articles were forwarded to
the Forensic Science Laboratory
26 only on 24
th
January, 2013, i.e., after significant delay whereas
other seized articles had been sent much earlier. No
plausible explanation has been furnished for this
unexplained delay, thereby rendering the alleged
recovery highly doubtful and being a planted one.
28. Questioning the alleged recovery of the salwar,
earrings and nose pin at the instance of Accused No.
2-Sushil @ Bhura, learned senior counsel submitted
that the same is wholly unbelievable and fabricated.
It was pointed out that much before the appellants
had been arrested, several police officers had
repeatedly inspected the place of occurrence and
surrounding area on multiple occasions. Even
according to the prosecution witnesses, a large crowd
had gathered at the spot. In spite thereof, the salwar,
which was allegedly lying merely about 25 metres
away from the dead body, was never noticed by
anyone until its so-called recovery pursuant to the
disclosure statement of Accused No. 2-Sushil @
Bhura. Learned counsel contended that if a tiny shirt
26
For Short, “FSL”.
22
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
pocket could allegedly be recovered during the
inspection of the crime scene, there was no reason
why a comparatively larger article such as a salwar
would remain unnoticed. Furthermore, as the
appellants were free birds after committing the
alleged crime, there was no reason as to why they
would conceal the worthless incriminating article,
i.e., the salwar near the crime scene after taking
meticulous care to tie the earrings and nose pin in it
and risk creating evidence against themselves. It was
further submitted that the salwar itself was not even
sent for forensic examination, thereby rendering the
alleged recovery devoid of evidentiary value.
29. Learned senior counsel further urged that the
prosecution suppressed the earliest information
received by the police regarding the incident. Drawing
attention to the deposition of Head Constable Sanjay
Singh Negi (PW-9) and the General Diary entry, it was
submitted that one Sanjay Bharadwaj had
telephonically informed the police at about 8:45 p.m.
regarding the dead body of a woman lying in the
forest area. According to learned counsel, this
constituted the earliest information regarding the
23
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
occurrence and ought to have been treated as the
First Information Report. However, the said
information was neither registered as an FIR nor
brought on record during the trial which
tantamounts to withholding of material evidence. It
was further submitted that although Bharadwaj was
the first person to notice the dead body and inform
both the complainant and the police, his statement
under Section 161 of CrPC was neither recorded nor
was he cited as a witness in the chargesheet and was
not examined during trial despite the fact that several
prosecution witnesses admitted his presence at the
crime scene. Learned counsel submitted that
withholding such a material witness gives rise to an
adverse inference against the prosecution.
30. Learned senior counsel for the appellants
further contended that the prosecution has utterly
failed to establish an unimpeachable chain of
custody with regard to the muddamal articles
allegedly recovered during the course of investigation.
It was urged that the prosecution witnesses are
conspicuously silent regarding the safe custody and
proper transmission of the seized articles from the
24
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
time of recovery till their receipt at the FSL. Though
Sanjay Singh Negi (PW-9), the Head Moharrir of the
police station, deposed regarding seizure and deposit
of certain articles in the general diary, his testimony
does not disclose the manner in which the muddamal
articles were preserved and transmitted to the FSL.
Likewise, the constables who allegedly carried the
articles to the FSL, namely Sushil Kumar (PW-18)
and Vijendra Singh (PW-17), failed to prove any
contemporaneous record or forwarding document s
evidencing the handing over of the sealed articles to
them from the police station in the self-same
condition. It was further submitted that even the
forms allegedly accompanying the articles to the FSL
were not duly proved in evidence. On this basis, it
was vehemently argued that the prosecution has
failed to establish the sanctity and integrity of the
seized forensic articles and, consequently, the
forensic reports based thereon lose all evidentiary
value.
31. On these grounds, learned senior counsel
representing the appellants submitted that the
impugned judgment passed by the High Court
25
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
affirming the conviction of the appellants and the
sentences awarded by the trial Court suffers from
serious errors and flaws in appreciation of facts and
law. It was urged that the prosecution has failed to
establish a complete chain of incriminating
circumstances consistent only with the hypothesis of
guilt of the appellants. The material omissions,
contradictions and procedural irregularities,
particularly the failure to conduct a TIP, non-
examination of crucial witnesses, suppression of the
earliest information, doubtful recoveries, lack of
chain of custody of the forensic samples, strike at the
very root of the prosecution case. It was, therefore,
contended that the judgments of the Courts below
have resulted in grave miscarriage of justice and
deserve to be set aside and the appellants are entitled
to be acquitted of the charges.
SUBMISSIONS ON BEHALF OF THE
RESPONDENT -STATE: -
32. Per contra, learned counsel appearing for the
respondent-State vehemently and fervently opposed
the submissions advanced on behalf of the appellants
and contended that the prosecution has successfully
26
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
established a complete chain of circumstances
unerringly pointing towards the guilt of the
appellants. It was urged that the evidence of the
witnesses of fact, namely, Anil Chauhan (PW-1),
Anusuiya (PW-2) and Alka Chauhan (PW-4) is cogent,
reliable and inspires confidence. According to the
learned counsel, the deceased-victim had gone to the
forest at about 2:00 p.m. on the date of occurrence
and shortly thereafter, the appellants were seen
enquiring about her whereabouts from An usuiya
(PW-2) and Alka Chauhan (PW-4). The said witnesses
had pointed out the direction in which the deceased-
victim had gone. It was further submitted that
according to Anusuiya (PW-2), the appellants were
under the influence of liquor at the relevant time. The
deceased-victim did not return home thereafter and
her dead body was ultimately recovered from the
forest area. Thus, according to the respondent-State,
the circumstance of the appellants enquiring about
the deceased-victim and proceeding to that very
direction immediately before the o ccurrence
constitutes a vital incriminating circumstance
against them.
27
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
33. Learned counsel for the respondent -State
further submitted that the medical and forensic
evidence fully corroborates and lends complete
assurance to the prosecution case. Reliance was
placed upon the testimony of Dr. Mahavir Singh (PW-
3), who conducted the post-mortem examination and
found as many as ten ante-mortem injuries on the
body of the deceased-victim including abrasions and
contusions. According to the medical jurist, the
injuries suffered by the deceased -victim were
sufficient in the ordinary course of nature to cause
death. The witness (PW-3) further opined that some
of the injuries could have been caused by physical
assault and teeth bites. It was submitted that the
post-mortem findings clearly establish the brutal
nature of the assault committed upon the deceased-
victim.
34. It was further urged that the reports of the
Forensic Science Laboratory lend substantial
credence to the case of the prosecution. Learned
counsel submitted that during forensic examination
semen traces were detected from the material
collected from the deceased-victim’s dead body and
the blood found on the shirt recovered from Accused
28
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
No. 1-Mehtab tested positive for Group “O”, which
matched the blood group of the deceased-victim. It
was further pointed out that the torn piece of pocket
recovered from the place of occurrence was
scientifically matched with the shirt belonging to
Accused No. 1-Mehtab. According to the respondent-
State, the forensic experts, i.e., Bhakt Darshan (PW-
11) and Dr. Manoj Kumar Agarwal (PW -13) duly
proved the reports during trial and no material
contradiction could be elicited in their cross -
examination so as to discredit their testimony. It was
urged that at the instance of Accused No. 2-Sushil @
Bhura, the salwar and ornaments belonging to the
deceased-victim were recovered from the bushes near
the place of occurrence. The appellants failed to
furnish any plausible explanation for the recovery of
these highly incriminating articles which could only
have been within their exclusive knowledge.
35. Learned counsel further contended that the
recoveries effected during investigation constitute
significant incriminating circumstances against the
appellants. It was submitted that the recoveries, read
together with the medical evidence, forensic reports
and other attending circumstances, establish the
29
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
involvement of the appellants beyond reasonable
doubt. Learned counsel further pointed out that
Tahir Hasan (DW-3), father of Accused No. 1-Mehtab,
admitted in his testimony that Accused No. 1-Mehtab
had returned home only later during the night,
thereby lending support to the prosecution version
regarding his presence away from home at the
relevant point of time.
36. Dealing with the contention regarding non -
conduct of TIP, learned counsel for the respondent-
State submitted that although no TIP was conducted,
the appellants were apprehended on the basis of the
sketches prepared with the assistance of Anusuiya
(PW-2) and Alka Chauhan (PW-4), who had seen the
appellants in the forest area on the date of
occurrence. It was urged that the sketches were
prepared pursuant to the detailed description of the
suspects furnished by the said witnesses and on that
basis, the ap pellants were identified and
apprehended by the police. The said witnesses
thereafter identified the appellants in Court and
nothing substantial could be elicited in cross -
examination so as to discredit their testimony.
According to the respondent-State, mere non-holding
30
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
of TIP would not be fatal to the prosecution case when
there exists sufficient corroborative evidence
connecting the appellants with the crime.
37. Learned counsel lastly submitted that both the
trial Court and the High Court have meticulously
appreciated the entire evidence on record and
recorded well-reasoned concurrent findings of guilt
against the appellants. It was urged that the
prosecution has successfully established the chain of
incriminating circumstances including the fact of
appellants enquiring about the deceased -victim
immediately before the occurrence, the recovery of
the dead body from the forest area, the medical and
forensic evidence, the matching of the torn pocket
piece with the shirt recovered at the instance of
Accused No. 1-Mehtab and the recoveries effected at
the instance of Accused No. 2-Sushil @ Bhura.
According to the respondent-State, no perversity,
illegality or miscarriage of justice has been
demonstrated in the impugned judgments so as to
warrant interference by this Court in exercise of its
jurisdiction under Article 136 of the Constitution of
India and therefore, the present appeals deserve to be
dismissed.
31
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
DISCUSSION AND ANALYSIS
38. We have given our anxious and thoughtful
consideration to the submissions advanced at the
Bar and have undertaken a meticulous examination
of the impugned judgments together with the entirety
of the material placed on record. Upon a
comprehensive appraisal of the rival contentions and
the evidence available on record, we proceed to
analyse the issues arising for determination in the
present matter.
39. At the outset, it may be noted that the
prosecution case is founded entirely on
circumstantial evidence and there is no eyewitness to
the actual commission of the crime. The prosecution
has endeavoured to establish the guilt of the
appellants by proving a chain of incriminating
circumstances which, according to it, is complete in
all respects and points unerringly towards the guilt
of the appellants, while excluding every possible
hypothesis consistent with their innocence. The
circumstances relied upon by the prosecution,
broadly stated, are the following: -
32
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
I. the last seen together circumstance, coupled
with the identification of the appellants on
the basis of the sketch prepared pursuant to
the statement of Anusuiya (PW-2), which,
according to the prosecution, establishes the
presence and involvement of the appellants
in the occurrence;
II. the disclosure statements suffered by the
appellants while in custody, the recoveries
effected consequent thereto, and the forensic
science examination reports pertaining to the
articles so recovered, which are relied upon
by the prosecution as incriminati ng
circumstances connecting the appellants
with the crime in question.
40. It is a settled proposition of criminal
jurisprudence that in a case resting solely on
circumstantial evidence, the prosecution carries the
onerous burden of establishing each incriminating
circumstance beyond reasonable doubt. Unlike a
case founded on direct ocular testimony, where the
commission of the offence is spoken to by
eyewitnesses, a case based on circumstantial
33
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
evidence requires the Court to carefully evaluate
whether the circumstances relied upon by the
prosecution have been firmly and cogently proved
and that the circumstances so proved form a
complete chain pointing unerringly towards the guilt
of the accused person. Each circumstance forming
part of the chain must stand independently
established and the cumulative effect thereof must be
such as to lead only to the irresistible conclusion that
the accused alone is the perpetrator of the crime.
Mere suspicion, however grave, cannot take the place
of legal proof, and the circumstances proved must be
incompatible with the innocence of the accused.
41. It is equally well settled that the chain of
incriminating circumstances must be so complete
and conclusive so as to exclude every possible
hypothesis other than the guilt of the accused. The
circumstances proved must not only be consistent
with the hypothesis of guilt, but must also be
inconsistent with any reasonable hypothesis of
innocence or the guilt of anyone else. Unless the
prosecution succeeds in establishing a complete and
unbroken chain of circumstances pointing unerringly
towards the guilt of the accused, a conviction cannot
34
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
be sustained. Put differently, the cumulative effect of
the proved circumstances must be such as to satisfy
the judicial conscience of the Court that, in all
natural probabilities, the offence was committed by
the accused and none else.
42. Keeping in view the aforesaid settled principles
governing appreciation of circumstantial evidence,
we shall now proceed to examine the prosecution
evidence in order to ascertain whether the
circumstances relied upon by the prosecution have
been duly proved and whether the same form a
complete and unbroken chain pointing unerringly
towards the guilt of the appellants. We shall evaluate
each incriminating circumstance independently and
thereafter consider the cumulative effect thereof so as
to determine whether the prosecution has succeeded
in establishing the charges against the appellants
beyond reasonable doubt.
I. LAST SEEN TOGETHER CIRCUMSTANCE AND
IDENTIFICATION OF THE APPELLANTS BASED
ON THE SKETCH PREPARED AT THE
INSTANCE OF ANUSUIYA (PW -2)
43. We shall first advert to the circumstance of “last
seen together”, which has been heavily relied upon by
35
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
the prosecution as a vital incriminating circumstance
against the appellants. The prosecution seeks to
contend that the appellants were lastly seen following
the deceased-victim towards the forest area and that,
soon thereafter, the victim was subjected to sexual
assault and then murdered. According to the
prosecution, this circumstance constitutes a vital
link in the chain of incriminating circumstances
sought to be established against the appellants. In
order to prove the said circumstance, the prosecution
has principally relied upon the testimonies of
Anusuiya (PW-2) and Alka Chauhan (PW-4).
44. Anusuiya (PW-2), in her deposition, stated that
on 29
th December, 2012, she had gone to the forest
along with Alka Chauhan (PW-4) and one Neha for
collecting grass leaves, while the deceased-victim had
proceeded ahead of them into the forest for grazing
goats. According to the witness, at about 3:00 p.m.,
two boys approached them in the forest and enquired
about the whereabouts of a “Pahadan” (lady residing
in the hills) who had gone with goats. Upon her
expressing ignorance, the boys clarified that they
were referring to the elderly woman residing near the
“Khale” (water channel). The witness stated that both
36
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
the boys appeared to be intoxicated and, believing
that they were searching for the deceased-victim, i.e.,
Munni Devi, in order to procure liquor, she pointed
towards the direction in which the deceased-victim
had gone. The witness further deposed that after
sometime, she along with Alka Chauhan (PW-4) and
Neha returned home. At about 5:00-5:30 p.m., Neha
informed her that their goats had returned home,
however, “Nani” (Maternal Grandmother) had not
returned. Thereafter, the complainant (PW-1), the
son of the deceased-victim, along with some persons
from the surrounding area, went into the forest in
search of his mother. The witness further deposed
that later in the evening at 8:30-9:00 p.m., when it
came to light that the deceased-victim had been
subjected to rape and murdered in the forest, she
developed suspicion against the said boys and
informed the police accordingly.
45. On the basis of the description furnished by the
witness (PW-2), sketches of the suspects were
allegedly prepared. Those sketches were pasted in
and around the village and, consequently, it came to
light that the suspects were residents of the same
village in which the witness herself resided. However,
37
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
she claimed that the village was quite large and
densely populated and, therefore, she did not
recognise all the residents thereof. The witness
identified the appellants in Court and asserted that
the sketches matched the appellants. She further
stated that on 3
rd January, 2013, the police informed
her that the suspects had been apprehended,
whereupon she went to the forest road near Tiparpur
and identified the appellants as the very same
persons who had enquired about the deceased-victim
on the date of the incident.
46. In her cross-examination, Anusuiya (PW-2)
admitted that the appellants were previously not
known to her, though she subsequently learnt that
they belonged to her own village. She further
admitted that she had not entertained any suspicion
at the time when the boys made enquiries regarding
the deceased-victim and that suspicion arose only
after she came to know about the death of the
deceased-victim. She also acknowledged that the
sketches prepared by the police did not bear her
signatures. The witness further admitted that she
had seen the appellants for the second time only on
3
rd January, 2013, when they were already in police
38
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
custody. At that time also, the accused persons were
wearing the same clothes which they had allegedly
worn on the day of the incident.
47. Alka Chauhan (PW-4), who was about 12 years
of age at the relevant point of time, substantially
corroborated the version of Anusuiya (PW-2). She
stated that while she, Anusuiya (PW-2) and Neha
were collecting leaves in the forest, the appellants
approached them and enquired about the
whereabouts of the elderly woman grazing goats. The
witness further identified the appellants present in
Court and stated that both of them had asked where
the “Pahadan” had gone. According to the witness,
Anusuiya (PW-2) pointed towards the direction where
the deceased-victim had gone, after which the
appellants proceeded into the forest in the same
direction. In her cross-examination, the witness (PW-
4) admitted that she had given her statement to the
police on the instructions of her father, although she
maintained that the assertion regarding seeing the
appellants in the forest was based on her own
knowledge.
48. The prosecution has also relied upon the
testimonies of Sub-Inspector Pramod Sah (PW-10)
39
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
and Surya Bhushan Negi, Station Officer (PW-16) in
relation to the preparation of sketches and
subsequent apprehension and identification of the
appellants. Sub-Inspector Pramod Sah (PW -10)
deposed that during the course of investigation,
information was received that the persons whose
sketches had been prepared on the basis of suspicion
were present somewhere between Tiparpur Barrier
and the Junglat road. Act ing upon the said
information, the police party proceeded towards the
forest road and, at a distance of about one kilometre
ahead, noticed two young men approaching from the
opposite direction. According to the witness, the
public witnesses accompanying the police party and
the complainant (PW-1) indicated that the said
persons resembled the suspects depicted in the
sketches. Thereupon, both the appellants were
arrested at around 11:30 a.m. The witness (PW-10)
further stated that the facial features of the
apprehended persons matched the sketches
prepared during investigation. He deposed that ,
thereafter, Anusuiya (PW-2) was called to the spot
and she stated that the appellants were the same
persons whom she had seen in the forest on 29
th
40
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
December, 2012 asking about the deceased-victim.
The witness also proved the arrest memo
27 prepared
at the time of apprehension of the appellants.
49. Surya Bhushan Negi, Station Officer (PW-16)
stated that during the investigation, one Narayan
Singh (PW-6) informed him that Anusuiya (PW-2),
Neha and another girl had seen two suspicious
persons in the forest on the date of the incident.
Pursuant thereto, the statements of Anusuiya (PW-
2), Neha and Alka Chauhan (PW -4) were recorded.
According to the witness, a sketch expert was
thereafter summoned from Dehradun and sketches
of the suspects were prepared on the basis of the
description furnished by Anusu iya (PW-2). The
witness (PW-16) stated that multiple copies of the
sketches were circulated in the surrounding areas
and were also published in newspapers. He further
deposed that on 2
nd January, 2013, during the
supplementary inquiry, the complainant (PW-1)
stated that one of the sketches matched Accused
No.1-Mehtab. It was also revealed that Accused No.1-
Mehtab and another boy, Accused No.2-Sushil @
27
Exhibit Ka-39.
41
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Bhura, had been missing from the village since the
incident and were allegedly living in the forest,
occasionally visiting the village at night, which was
verified by one Ravindra Singh. The names of the
appellants were thereafter recorded in the case diary
and the General Diary. Acting on further secret
information received on 3
rd January, 2013, the police
party proceeded towards the forest road near
Tiparpur barrier and apprehended the appellants.
According to the witness, after the apprehension of
the appellants, Anusuya Singh (PW-2) was called to
the spot and she identified the appellants as the very
same duo who had enquired about the whereabouts
of the deceased-victim in the forest on the date of
occurrence.
50. In his cross-examination, the witness (PW-16)
admitted that no Test Identification Parade of the
accused persons was conducted. He further admitted
that Neha had stated that the boys whom they had
met in the forest had also come to her grandmother’s
(deceased-victim) house on the same day and that
she had informed them that her grandmother had
gone to the forest. However, the witness (PW-16)
admitted that he could not recollect whether this fact
42
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
had been conveyed to the Circle Officer (PW-19).
Regarding the preparation of the sketches
28, the
witness stated that the same were prepared by an
expert allegedly called from Dehradun. However, no
name or identity of such expert was disclosed, and a
wholly flimsy and unconvincing explanation was
offered that the identity was being kept confidential
for security reasons. The witness further admitted
that the case diary did not specifically record the time
or place where the sketches were prepared. Most
significantly, the photocopies of the sketches
produced on record do not bear the signatures of the
sketch artist, the witness who attested the same and
even that of Mr. Surya Bhushan Negi, Station Officer
(PW-16). This fact was candidly admitted by the
witness (PW-16) in his cross-examination. Further,
the sketches produced before the Court were merely
photocopies. The witness (PW-16) further admitted
that he could not state where the originals were.
51. The witness (PW-16) also stated in his cross-
examination that these sketches were published on
31
st December, 2012 in newspapers including Amar
28
Material Exhibits 18 and 19.
43
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Ujala, Dainik Jagran and Hindustan. He further
admitted that the name of Accused No.1-Mehtab
surfaced through information provided by a secret
informer, who stated that the sketch resembled a
resident of Village Sabhawala, yet despite receiving
such information, the witness (PW-16) did not
immediately visit Sabhawala and merely constituted
a team for further inquiry. The witness while
narrating the version allegedly given by Anusuiya
(PW-2), stated that she had informed him that two
boys, one of whom was tall, dark-complexioned and
long-haired, had come inquiring about the deceased-
victim who used to graze goats and that the said
persons appeared to be intoxicated. According to
the version attributed by the witness (PW-16) to
Anusuiya (PW-2), she suspected that the boys
were searching for liquor, as Munni Devi
(deceased-victim), allegedly used to sell liquor.
52. It is pertinent to note in this context that the
prosecution did not examine Neha, who was allegedly
accompanying Anusuiya (PW-2) and Alka Chauhan
(PW-4) in the forest at the relevant time and was also
stated to be the granddaughter of the deceased -
victim. According to the prosecution version itself,
44
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
Neha was present when the appellants allegedly
approached the girls and enquired about the
whereabouts of the deceased-victim. The evidence on
record further reveals that Neha had also given
statements to the Station Officer (PW-16) during the
course of investigation. She was, therefore, not only
a natural and material witness to the circumstances
immediately preceding the incident, but also a
witness whose version had been recorded by the
investigating agency itself. Despite this, the
prosecution withheld her from the witness box and
no explanation has been brought on record for such
non-examination.
53. The omission assumes considerable
significance particularly because the testimonies of
Anusuiya (PW-2) and Alka Chauhan (PW -4)
constitute the very foundation of the prosecution
case with regard to the alleged “last seen together”
circumstance and the identification of the appellants.
In such circumstances, the failure of the prosecution
to examine Neha, despite her being an available and
material witness closely related to the deceased-
victim whose statement had admittedly been
recorded during investigation, assumes the character
45
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
of suppression of best available evidence. The
withholding of such a crucial witness, without any
explanation, gives rise to a serious infirmity in the
prosecution case and casts a substantial doubt on
the integrity and fairness of the investigation as well
as on the reliability of the prosecution’s version of
events.
54. The aforesaid infirmity assumes greater
significance when the evidence relating to the
identification of the appellants is examined in its
entirety. Having carefully appreciated the aforesaid
evidence, we find it difficult to accept the prosecution
case regarding the circumstance of “last seen
together” as having been proved beyond reasonable
doubt. Admittedly, the appellants were not previously
known to either Anusuiya (PW-2) or Alka Chauhan
(PW-4). The entire process of identification of the
appellants rests substantially upon the alleged
sketches said to have been prepared on the basis of
the description furnished by the Anusuiya (PW-2).
However, serious infirmities and inconsistencies
emerge from the prosecution evidence in this regard.
Anusuiya (PW-2) stated that she disclosed the facial
features of the suspects to the police on 30
th
46
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
December, 2012 and that the sketches were prepared
at her residence. On the other hand, Station Officer
(PW-16) deposed that on 31
st December, 2012, after
recording the statements of Narayan Singh (PW-6),
Anusuiya (PW-2), Neha, and Alka Chauhan (PW-4)
regarding the sighting of two suspicious persons in
the forest on 29
th December, 2012, a sketch expert
was called and sketches were prepared as per
Anusuiya’s instructions. Hence, the sketch expert
was summoned only after recording the statements
of witnesses on 31
st December, 2012. These material
inconsistencies regarding the sequence of events cast
serious doubt on the very genesis and reliability of
the alleged sketches.
55. A further serious infirmity in the prosecution
case is the complete failure of the investigating
agency to conduct a TIP, despite the admitted
position that the appellants were not previously
known to the material witnesses, i.e., Anusuiya (PW-
2) and Alka Chauhan (PW-4). The prosecution itself
asserts that the appellants came to be suspected on
the basis of sketches allegedly prepared during the
course of investigation. Immediately, after their
apprehension on 3
rd January 2013, the appellants
47
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
were shown to Anusu iya (PW-2) while in police
custody, and were thereafter identified by the
witnesses for the first time in Court. In these
circumstances, the evidentiary value of the dock
identification stands substantially diminished. It is a
well settled proposition that where the accused are
strangers to the witnesses, a TIP assumes
considerable significance in providing assurance as
to the sanctity of the dock identification. The rank
failure of the investigating agency to hold a TIP,
particularly in the facts of the present case,
materially undermines the credibility of the
prosecution version insofar as the identification of
the appellants is concerned. That apart, there is no
explanation forthcoming from the record regarding
the failure of the Investigating Officer to get the
suspects identified at the hands of Neha, the
granddaughter of the deceased-victim.
56. Equally doubtful is the prosecution story
regarding the preparation of sketches of the alleged
suspects. Though the prosecution asserted that the
sketches were prepared at the instance of Anusuiya
(PW-2), the sketch artist who allegedly prepared the
sketches was neither cited as a witness nor examined
48
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
during trial. Surprisingly, even the identity of the
sketch artist was withheld by the prosecution.
Station Officer (PW-16) sought to justify this omission
by offering the flimsy and wholly unconvincing
explanation that the sketch expert had been kept
anonymous for reasons of safety. No material
whatsoever was placed on record to substantiate
such an unusual course of action.
57. Further, the witness (PW-16) admitted that the
original sketches were never produced before the
Court. We have ourselves examined the exhibited
sketches (Material Exhibits 18 and 19) and find that
they do not bear the signatures of Anusuiya (PW-2),
the Investigating Officers, or any other witness. The
sketches also do not bear any indication that the
same had been prepared on the instructions of
Anusuiya (PW-2). Moreover, Alka Chauhan (PW-4),
did not claim to have played any role in the
preparation of the sketches. Significantly, even the
date and time of preparation of these sketches are
conspicuously absent from the documents. The
absence of any such contemporaneous endorsement
lends credence to the defence contention that the
sketches were prepared only after the arrest of the
49
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
appellants. Thus, we are of the considered opinion
that the prosecution has failed to establish the
authenticity and reliability of the sketches on the
basis whereof the appellants are alleged to have been
identified and apprehended which completely
demolishes the pivotal circumstance of identification
of the appellants on which the entire prosecution
case hinges.
58. A further infirmity in the prosecution case
emerges from the recital contained in the common
arrest memo (Exhibit Ka-39). The document records
that after the apprehension of the appellants,
Anusuiya (PW-2) was called to the spot and she
identified Accused No.1-Mehtab as one of the persons
seen by her in the forest on the date of the incident.
However, the said arrest memo does not record that
Anusuiya (PW-2) similarly identified Accused No.2-
Sushil @ Bhura. This omission assumes significance
because the prosecution case itself is that both
appellants had jointly approached the witnesses and
thereafter proceeded towards the direction where the
deceased-victim had gone. Had both the appellants
in fact been identified at the time of arrest, there was
no reason for the Sub-Inspector Pramod Sah (PW-10),
50
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
i.e., the witness who prepared the arrest memo, to
omit recording such a material fact. The omission,
therefore, seriously undermines the prosecution case
regarding the identification of the appellants.
59. We also find significant embellishments and
improvements in the testimony of the Station Officer
(PW-16), which cast a serious cloud of suspicion on
the prosecution case. The witness (PW-16) deposed
that Anusuiya (PW-2) had informed the police that
the appellants were asking about “that old woman
selling liquor”. However, a careful reading of the
testimony of Anusuiya (PW-2) reveals that she never
stated that the appellants had specifically enquired
about a woman selling liquor. Her version was that
she herself presumed that the boys might be
searching for the deceased-victim in order to procure
liquor because people used to say that the deceased-
victim sold liquor. This material improvement
introduced by the Station Officer (PW-16) appears to
be a clear embellishment intended to lend credibility
to the prosecution case. Furthermore, there is no
independent evidence on record to establish that the
deceased-victim was actually engaged in the
business of selling liquor, whether legally or illicitly.
51
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
In the absence of any such evidence, the aforesaid
embellishment assumes significance and renders the
prosecution narrative highly doubtful.
60. A further material contradiction emerges from
the evidence of the Circle Officer (PW-19) regarding
the facial features allegedly disclosed by the
witnesses at the time of preparation of the sketches.
Anusuiya (PW-2), while describing the suspects,
specifically stated that Accused No.1-Mehtab had a
slight moustache and that both the suspects had
long hair at the relevant time. She further stated that
the sketches prepared on the basis of her description
closely resembled the appellants. However, the Circle
Officer (PW-19), during his cross-examination,
categorically admitted that Material Exhibit-18 was a
combined photograph and that neither of the persons
depicted therein had a moustache or long hair. He
further admitted that even Material Exhibit-19 did
not depict any moustache or long hair. The
inconsistency between the features allegedly
narrated by Anusuiya (PW-2) and the actual features
reflected in the exhibited sketches materially
undermines the evidentiary value of the identification
process relied upon by the prosecution.
52
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
61. The deficiencies in the investigation become
even more apparent from the admissions of the Circle
Officer (PW-19) regarding the verification of those
sketches. The witness (PW-19) candidly admitted
that during the course of investigation he neither
recorded any detailed statement of Neha and Alka
Chauhan (PW-4) regarding the facial features of the
suspects nor made any effort to show the sketches to
them for the purpose of ascertaining whether the
persons depicted therein were the same individuals
whom they had allegedly seen in the forest on the
date of occurrence. These admissions assume
considerable significance because, according to the
prosecution itself, Neha and Alka Chauhan (PW -4)
were accompanying Anusuiya (PW-2) at the relevant
time and had allegedly seen the suspects in close
proximity. In such circumstances, the complete
failure of the investigating agency to seek
confirmation from these crucial witnesses regarding
the genuineness of the sketches, creates a serious
gap in the chain of identification and further weakens
the prosecution case insofar as the identity of the
appellants is concerned.
53
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
62. Apart from the aforesaid infirmities, the
evidence of Anusuiya (PW-2) and Alka Chauhan (PW-
4), even if accepted in its entirety, merely establishes
that the appellants had enquired about the
whereabouts of an elderly woman grazing goats in the
forest and had proceeded in the general direction
indicated by the witnesses. Neither of the witnesses
claimed to have actually seen the appellants in the
company of the deceased-victim at or around the
probable time of occurrence. The place where the
dead body of the deceased-victim was eventually
recovered was situated deep inside the forest and
admittedly had multiple access routes leading
thereto. In such circumstances, the possibility of
ingress and egress by several other persons cannot
be ruled out. Consequently, merely because two
individuals were allegedly seen by Anusuiya (PW-2)
and Alka Chauhan (PW-4) proceeding towards the
forest, no conclusive or irrefutable inference can be
drawn that they alone were the perpetrators of the
offence committed therein.
63. We are, therefore, of the considered opinion that
the prosecution has miserably failed to establish the
circumstance of “last seen together” in a cogent and
54
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
reliable manner known to law. The evidence led by
the prosecution on this aspect suffers from material
inconsistencies, procedural lapses and serious
infirmities which render the prosecution case on this
circumstance wholly unreliable.
II. DISCLOSURE STATEMENTS OF THE
APPELLANTS, CONSEQUENT RECOVERIES,
AND FORENSIC EXAMINATION OF THE
RECOVERED ARTICLES
64. Having discarded the circumstance of “last seen
together” and the evidence relating to the
identification of the appellants, we shall now advert
to the second set of incriminating circumstances
relied upon by the prosecution, namely, the
disclosure statements allegedly ma de by the
appellants while in custody, the recoveries
purportedly effected pursuant thereto, and the
forensic examination reports relating to the recovered
articles. According to the prosecution, these
recoveries constitute vital links in the chain of
circumstantial evidence connecting the appellants
with the crime in question.
65. The prosecution case, insofar as the recoveries
are concerned, is that during the search of the crime
55
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
scene conducted on 30
th December, 2012, a torn shirt
pocket was recovered from the place of occurrence.
29
According to the prosecution, after the appellants
were apprehended on 3
rd January, 2013, Accused
No.1-Mehtab made a disclosure statement to the
effect that the shirt worn by him at the time of the
incident was still being worn by him. Pursuant
thereto, the Station Officer (PW-16) allegedly opened
the jacket worn by Accused No.1-Mehtab and noticed
that the left-side pocket of his shirt worn underneath
the jacket was torn. The prosecution asserted that
the torn portion of the shirt appeared to prima facie
match with the shirt pocket recovered earlier from the
spot in terms of colour and fabric. Thereupon, the
shirt allegedly worn by accused Mehtab, described as
a striped shirt having blue, green, black and white
colours, was taken into possession, sealed and seized
vide seizure memo
30 prepared by Sub-Inspector
Pramod Sah (PW-10) on the dictation of the Station
Officer (PW-16) in the presence of police personnel,
witnesses and Accused No.1-Mehtab.
29
Supra Note 14.
30
Supra Note 17.
56
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
66. The prosecution further alleged that Accused
No.2-Sushil @ Bhura, while in police custody, made
a disclosure statement to the effect that after
subjecting the deceased-victim to rape and causing
her death, Accused No.2-Sushil @ Bhura, with the
intention of screening the offence and destroying the
evidence, had concealed the salwar of the deceased-
victim, along with her earrings and nose pin, which
had allegedly fallen off during the course of the
scuffle, in bushes situated near the place of
occurrence. Acting upon the said disclosure
statement, the police party, accompanied by
independent witnesses, i.e., the complainant (PW-1)
and Gajendra Singh (PW-5), proceeded to the place
indicated by Accused No.2-Sushil @ Bh ura.
According to the prosecution, Accused No.2-Sushil @
Bhura, thereafter, pointed out thick bushes situated
near the place of incident, from where a green -
coloured salwar, a pair of white-metal earrings and a
broken yellow-coloured nose pin were allegedly
recovered. The prosecution further asserted that
these articles were identified by the complainant (PW-
1) as belonging to the deceased-victim, whereafter the
57
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
recovered articles were separately sealed and seized
vide seizure memo dated 3
rd January, 2013.
31
67. In order to substantiate the aforesaid recoveries
and the incriminating circumstances purportedly
arising therefrom, the prosecution relied principally
upon the testimonies of Sub-Inspector Pramod Sah
(PW-10) and Surya Bhushan Negi, Station Officer
(PW-16). According to the prosecution, upon
scientific evaluation, FSL report (Exhibit Ka-33)
established that the torn shirt pocket recovered from
the place of occurrence matched the shirt allegedly
seized from Accused No.1 -Mehtab. Further, the
salwar and ornaments recovered pursuant to the
disclosure statement of Accused No.2 -Sushil @
Bhura, were identified as belonging to the deceased-
victim, thereby allegedly linking both the appellants
with the crime in question.
68. Sub-Inspector Pramod Sah (PW -10), who
conducted the initial investigation, deposed that on
receiving telephonic information about the dead body
of an elderly woman lying in the forest, he reached
the place of occurrence at about 9:20 p.m. along with
31
Supra Note 18.
58
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
other police personnel. On reaching there, he noticed
that a few people were already present from before
and the dead body was lying in a partially denuded
condition, with the clothes on the upper part also in
disarray. He noticed bite marks on the face of the
deceased-victim. Since it had become dark and
visibility was poor, the body was shifted and the
inquest panchnama was prepared at the police
outpost. According to the witness, on the next day,
i.e., 30
th December, 2012, he went to the place of
occurrence along with Station Officer (PW-16) and
various articles including blood-stained soil, plain
soil and the torn shirt pocket were recovered from the
spot and seized vide memoranda prepared by him.
The witness further stated that the Accused No.1-
Mehtab, after being arrested, disclosed that the shirt
worn by him at the time of the incident had got torn
and that he was still wearing the same shirt .
Pursuant thereto, the shirt allegedly worn by Accused
No.1-Mehtab was seized and sealed vide possession
memo bearing Exhibit Ka-32. The witness (PW-10)
further deposed that Accused No.2-Sushil @ Bhura
made a disclosure statement to the effect that after
the incident, the salwar, earrings and nose pin of the
59
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
deceased-victim had been concealed in bushes
situated near the place of occurrence and, pursuant
to the said disclosure, the aforesaid articles were
allegedly recovered from the indicated place. Accused
No.2-Sushil @ Bhura further stated that the
recovered salwar had been worn by the deceased-
victim at the time of the incident. The said articles
were thereafter identified by the complainant (PW-1)
as belonging to the deceased-victim.
69. On a careful scrutiny of the seizure memo
pertaining to the torn shirt pocket, we find that the
same merely records that during the search
conducted near the place where the dead body was
lying, a detached shirt pocket was found and seized.
Significantly, the seizure memo does not indicate the
exact place or the distance from where the shirt
pocket was allegedly recovered vis-à-vis the place
where the dead body was found. This omission
assumes significance in view of the submission
advanced by the learned counsel for the appellants
that the torn shirt pocket was planted by the
prosecution in order to falsely connect Accused No.1-
Mehtab with the alleged offence.
60
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
70. In his cross-examination, the witness (PW-10)
admitted several material deficiencies in the seizure
process of the muddamal articles which seriously
undermine the credibility and sanctity of the alleged
recoveries heavily relied upon by the prosecution. The
witness (PW-10) categorically admitted that none of
the sealed bundles bore dates beneath the signatures
or thumb impressions of the witnesses, police
officials, or accused persons. In respect of the sealed
bundle containing the shirt allegedly recovered from
Accused No.1-Mehtab, the witness (PW-10) admitted
that although the bundle bore his signature, there
was no date beneath it. He further stated that
another signature appearing on the bundle bore the
date 20
th March, 2013, though he could not identify
whose signature it was. He also admitted that there
was no date below the alleged thumb impression of
Accused No.1-Mehtab, nor beneath the signatures of
Sub-Inspector Dilbar Singh Negi and Station Officer
(PW-16). He further admitted that the seizure memo
was prepared at the police station on the dictation of
the Station Officer (PW-16), and despite noticing the
distinct identifying features on the shirt, including
the “F.N.G. Fashion of New Guys” label and company
61
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
logo, such details were palpably omitted from the
seizure memo. He also conceded that although the
seizure memo recorded that signatures/thumb
impressions of Accused No.1 -Mehtab had been
obtained, the accused’s signatures did not appear
on the said memo, nor was it recorded that thumb
impressions had been affixed.
71. The witness (PW-10) in his further cross-
examination, made similar admissions regarding the
sealed bundles containing the salwar, earrings and
nose pin allegedly recovered pursuant to the
disclosure statement of Accused No.2-Sushil @
Bhura, as well as the torn shirt pocket allegedly
recovered from the place of occurrence. He admitted
that none of these bundles bore dates beneath any
signatures; could not explain these omissions; and
even gave contradictory versions regarding the date
and time of preparation of the bundle containing
salwar. He further admitted that the earrings and
nose pin bore no blood stains, that identifying details
of the articles were not mentioned in the seizure
memos. Significantly, he also admitted that no
photographs were taken of the appellants at the time
of apprehension while allegedly wearing the
62
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
incriminating clothes. These omissions,
inconsistencies, and procedural irregularities, more
particularly, the absence of dates and thumb
impression/signatures of the accused on the crucial
memoranda when viewed cumulatively cast grave
doubt upon the genuineness of the alleged recoveries
and materially erode their evidentiary value, lending
credence to the submissions advanced on behalf of
the appellants that the alleged recoveries were
planted and subsequently fabricated at the police
station.
72. On going through the evidence of Surya
Bhushan Negi, Station Officer (PW-16), we find that
the witness broadly referred to the preparation of
documents and seizures effected by Sub-Inspector
Pramod Sah (PW-10), but did not clearly indicate his
own active role in the actual process of search,
seizure and sealing of the recovered articles.
73. The witness (PW-16) further stated that after the
shirt, salwar and ornaments had been seized, the
police party returned to the police station. However,
the witness remained completely silent regarding the
subsequent handling of these seized articles,
particularly with regard to their deposit in the
63
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
malkhana of the police station and their safe custody
thereafter. The witness was completely silent on the
aspect that the seized articles relating to Accused
No.1-Mehtab and Accused No.2-Sushil @ Bhura were
transmitted to the FSL through any authorised
person in a duly sealed condition. The witness stated
that on 7
th January, 2013, the investigation of the
case was handed over to the Circle Officer , Dr.
Jagdish Chandra (PW-19).
74. The Head Moharrir of the police station, namely
Sanjay Singh Negi (PW-9), deposed regarding the
seizure of various articles and the recording thereof
in the general diary of the police station. However,
even his testimony is silent regarding the recording
of the said articles in the malkhana, as well as the
movement and transmission of the muddamal
articles from the police station to the FSL.
75. The prosecution examined two constables who
allegedly carried the muddamal articles to the FSL.
Constable Sushil Kumar (PW -18), who allegedly
transported the first set of muddamal articles to the
FSL on 2
nd January, 2013, merely proved the
64
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
forwarding memo
32 issued to the FSL. Likewise,
Constable Vijendra Singh (PW-17), who allegedly
carried another set of articles to the FSL on 24
th
January, 2013, stated that the articles , were
accompanied by a forwarding memo
33 issued to the
FSL. None of the witnesses examined by the
prosecution proved or stated about the proper
procedure of handing over and transmission of the
seized forensic articles from the malkhana to the FSL.
76. Thus, we are satisfied that there is no reliable
evidence on record establishing the safe custody and
sanctity of the muddamal articles from the time of
their seizure till the time they reached the FSL. In
addition, we may reiterate and emphasize that the
entire sequence of recoveries, particularly the alleged
recovery of the torn shirt pocket from the place of
occurrence and its purported matching with the shirt
allegedly worn by Accused No.1-Mehtab, to be highly
suspicious and unworthy of implicit reliance. The
circumstances attending such recovery do not inspire
confidence and cast a serious doubt on the
32
Exhibit Ka-43.
33
Exhibit Ka-42.
65
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
genuineness and credibility of the prosecution
version.
77. The glaring deficiencies noticed hereinabove in
relation to the seizure, sealing, safe custody and
transmission of the muddamal articles and forensic
samples assume considerable significance while
evaluating the evidentiary worth of the scientific
evidence relied upon by the prosecution. The
prosecution has miserably failed to lead cogent and
reliable evidence establishing an unbroken chain of
custody of the seized articles from the stage of their
recovery till their examination at the FSL. Neither
were the relevant forwarding documents and
malkhana records duly proved nor were the witnesses
responsible for handling and transmitting the
forensic samples examined in a satisfactory manner
so as to rule out the possibility of tampering,
contamination or interpolation. In the absence of a
duly proved chain of custody, the sanctity and
integrity of the forensic samples become doubtful
and, consequently, the scientific reports based
thereon lose their evidentiary value. In this regard,
we may gainfully refer to the judgment of this Court
in Prakash Nishad @ Kewat Zinak Nishad v. State
66
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
of Maharashtra
34, wherein it was observed as
under: -
“53. Perusal of these documents reveals that samples
of the blood and semen of the appellant were sent for
forensic analysis. Importantly though, there is
nothing on record to establish as to who took such
samples, on what date, on how many occasions and
why were they not sent all at once, we notice that
none of the police officials have testified to the
formalities of keeping the samples safe and secure
being complied with.
… … … …
58. As has been hitherto observed, there is no
clarity of who took the samples of the appellant. In
any event, record reveals that one set of samples
taken on 14 -6-2010 were sent for chemical
analysis on 16-6-2010 and the second sample
taken, a month later on 20-7-2010 is sent the very
same day. Why there exist these differing degrees
of promptitude in respect of similar, if not the
same-natured scientific evidence, is unexplained.
… … … …
60. In the present case, the delay in sending the
samples is unexplained and therefore, the
possibility of contamination and the concomitant
prospect of diminishment in value cannot be
reasonably ruled out. On the need for expedition in
ensuring that samples when collected are sent to the
laboratory concerned as soon as possible, we may refer
to “Guidelines for Collection, Storage and
Transportation of Crime Scene DNA Samples For
Investigating Officers — Central Forensic Science
Laboratory, Directorate Of Forensic Sciences Services,
Ministry of Home Affairs, Government of India” which
in particular reference to blood and semen,
irrespective of its form i.e. liquid or dry (crust/stain or
34
(2023) 16 SCC 357.
67
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
spatter) records the sample so taken: “Must be
submitted in the laboratory without any delay.”
61. The document also lays emphasis on the “chain of
custody” being maintained. Chain of custody implies
that right from the time of taking of the sample, to the
time its role in the investigation and processes
subsequent, is complete, each person handling said
piece of evidence must duly be acknowledged in the
documentation, so as to ensure that the integrity is
uncompromised. It is recommended that a document
be duly maintained cataloguing the custody. A chain
of custody document in other words is a document,
“which should include name or initials of the
individual collecting the evidence, each person or
entity subsequently having custody of it, dated the
items were collected or transferred, agency and case
number, victim's or suspect's name and the brief
description of the item”.
… … … …
66. In the present case, even though, the DNA
evidence by way of a report was present, its
reliability is not infallible, especially not so in light
of the fact that the uncompromised nature of such
evidence cannot be established; and other that
cogent evidence as can be seen from our discussion
above, is absent almost in its entirety.”
[Emphasis supplied]
78. It is further relevant to note that the forwarding
memo dated 24
th January, 2013 records that the
articles, namely, the plain soil, blood-stained soil,
torn pocket allegedly collected from the place of
occurrence, and the shirt purportedly belonging to
Accused No.1-Mehtab and worn at the time of the
incident, were forwarded to the FSL on the said date,
68
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
although these articles had allegedly been
seized/recovered much earlier, i.e., on 30
th
December, 2012 and 3
rd January, 2013 respectively.
Significantly, the other seized articles in the present
case had already been forwarded to the FSL on 2
nd
January, 2013 itself. The prosecution has failed to
furnish any plausible or satisfactory explanation for
the inordinate and unexplained delay in forwarding
the aforesaid articles for forensic examination. This
unexplained lapse assumes considerable significance
in the facts of the present case, particularly in view
of the specific allegations levelled by the learned
senior counsel representing the appellants that the
recoveries were planted and subsequently fabricated
to falsely implicate the appellants. In all probability,
the shirt must have been recovered fully intact and
the recovery of the detached pocket has been created
later in order to lend succour to the otherwise flimsy
prosecution story. The delayed forwarding of these
crucial articles materially affects the sanctity of the
chain of custody and undermines the authenticity
and evidentiary value of the alleged recoveries,
thereby rendering this part of the prosecution case
highly doubtful and unsafe to be relied upon. In all
69
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
probability, the shirt must have been fully intact and
the recovery of the detached pocket has been created
later in order to lend succour to the otherwise flimsy
prosecution story.
79. In this regard, learned senior counsel appearing
for the appellants had contended that the FSL report
itself renders the prosecution story regarding the torn
shirt pocket wholly doubtful. It was urged that the
FSL examination revealed that the shirt pocket had
been removed carefully stitch by stitch rather than
being violently torn away during the course of any
scuffle or struggle. On a careful perusal of the FSL
report (Exhibit Ka-33), we find substance in the
aforesaid contention. The seizure memo pertaining to
the shirt allegedly seized from Accused No.1-Mehtab
does not record the presence of any marks indicative
of the pocket portion having been violently sheared
off. Furthermore, Mr. Bhakt Darshan, Assistant
Director, FSL, Panditwadi, Dehradun, Uttarakhand,
examined as PW -11, admitted in his cross -
examination that the shirt pocket did not appear to
have been uprooted forcibly because the shirt itself
was not torn from any place and stitching was found
intact on both corners of the shirt.
70
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
80. In the backdrop of the aforesaid analysis, we are
constrained to observe that the prosecution story
regarding the recovery of the torn shirt pocket from
the place of occurrence and its alleged matching with
the shirt purportedly worn by Accused No.1-Mehtab
appears highly doubtful and unworthy of credence.
We are of the considered view that the alleged
recovery and matching of the shirt pocket is nothing
but a padded and created circumstance introduced
by the investigating agency in an attempt to lend
support to the prosecution case. The forensic
evidence, rather than lending assurance to the
prosecution version, materially undermines the
theory sought to be projected by the investigating
agency.
81. The prosecution theory regarding the recovery
of the salwar, earrings and nose pin of the deceased-
victim pursuant to the disclosure statement of
Accused No.2-Sushil @ Bhura is equally
unconvincing. It is difficult to comprehend that while
the investigating agency allegedly succeeded in
recovering a small detached shirt pocket from the
forest area during the initial search itself, the apparel
and ornaments of the deceased-victim, which were
71
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
allegedly lying nearby, escaped notice altogether.
Once the dead body had been found in a partially
denuded condition, it would be expected of a diligent
Investigating Officer to conduct an extensive search
of the surrounding area for tracing the missing
clothes and ornaments of the deceased-victim. The
prosecution version that these articles surfaced only
after the disclosure statement allegedly made by
Accused No.2-Sushil @ Bhura does not inspire
confidence. Furthermore, it does not stand to reason
that the accused would take such meticulous pains
to tie the nose pin and the earrings to the salwar and
then hide the same nearby the place of occurrence so
as to create evidence against himself.
82. Apparently, thus, the possibility that the
articles allegedly recovered pursuant to the alleged
disclosure statement of the appellants were withheld
during investigation so as to be subsequently planted
upon the appellants cannot be ruled out. Once the
recoveries themselves become doubtful, the FSL
report indicating the presence of blood group ‘O’ on
the shirt allegedly seized from Accused No.1-Mehtab,
as also the opinion regarding similarity in the colour
of the cloth, design and stitching thread of the torn
72
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
pocket with the said shirt, completely loses
significance. In any case, in the absence of reliable
evidence establishing the safe custody and sanctity
of the recovered articles from the time of seizure till
their examination at the FSL, the entire exercise of
forensic examination loses its evidentiary value.
83. We are of the firm opinion that even if the
alleged recoveries and the FSL report are accepted in
their entirety, the same do not materially advance the
case of the prosecution. The FSL report merely
indicates the presence of blood group ‘O’ on the shirt
allegedly seized from Accused No.1-Mehtab and on
the shirt pocket recovered from the place of
occurrence. Admittedly, the deceased-victim also had
blood group ‘O’. However, the prosecution never
determined the blood group of the appellants. Since
blood group ‘O’ is a common blood group, the mere
presence of blood of that group on the recovered
articles cannot, by itself, be treated as an
incriminating circumstance against Accused No.1-
Mehtab.
73
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
84. This Court in Allarakha Habib Memon v.
State of Gujarat
35 has expounded that even if the
FSL report establishes that the blood group detected
on the article recovered at the instance of the accused
matches that of the deceased, such circumstance in
isolation is not sufficient to link the accused with the
crime. It was observed that the mere recovery of a
bloodstained article, in absence of reliable evidence
connecting the same with the commission of the
offence, cannot constitute a determinative
incriminating circumstance against the accused. The
relevant excerpts from the said judgment are
reproduced hereinbelow: -
“42. The trial court as well as the High Court heavily
relied upon the FSL reports (Exts. 111-115) for
finding corroboration to the evidence of the
eyewitnesses and in drawing a conclusion regarding
culpability of the appellants for the crime. We may
reiterate that the testimony of the so -called
eyewitnesses has already been discarded above by
holding the same to be doubtful. Thus, even
presuming that the FSL reports (Exts. 111- 115)
conclude that the blood group found on the
weapons recovered at the instance of the accused
matched with the blood group of the deceased,
this circumstance in isolation, cannot be
considered sufficient so as to link the accused
with the crime.
43. In this regard, reliance can be placed on the
judgment of Mustkeem v. State of Rajasthan
35
(2024) 9 SCC 546.
74
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
[Mustkeem v. State of Rajasthan, (2011) 11 SCC
724: (2011) 3 SCC (Cri) 473], wherein this Court
held that sole circumstance of recovery of
bloodstained weapon cannot form the basis of
conviction unless the same was connected with
the murder of the deceased by the accused. The
relevant portion is extracted hereinbelow: (SCC
p. 730, para 19)
“19. The AB blood group which was found on
the clothes of the deceased does not by itself
establish the guilt of the appellant unless
the same was connected with the murder of
the deceased by the appellants. None of the
witnesses examined by the prosecutio n
could establish that fact. The blood found on
the sword recovered at the instance of
Mustkeem was not sufficient for test as the
same had already disintegrated. At any rate,
due to the reasons elaborated in the
following paragraphs, the fact that the
traces of blood found on the deceased
matched those found on the recovered
weapons cannot ipso facto enable us to
arrive at the conclusion that the latter were
used for the murder.”
44. On a perusal of the deposition of the
investigating officer (PW 18), we find his evidence on
the aspect of disclosure statements made by the
appellant-accused leading to the recoveries to be
totally perfunctory and unacceptable. The witness
did not elaborate upon the words spoken by the
appellant-accused at the time of making the
disclosure statements.”
[Emphasis supplied]
85. We are further of the considered view that the
forensic evidence regarding the detection of semen
and blood on the vaginal swab and the clothes
allegedly worn by the deceased-victim does not
75
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
inspire sufficient confidence so as to conclusively
connect the appellants with the crime in question.
The FSL report merely records the presence of semen
traces in the vaginal swab collected during the post-
mortem examination and does not, in the absence of
any corroborative material, establish the appellants'
complicity in the alleged offence.
86. A careful scrutiny of the material placed on
record makes it evident that no DNA examination or
scientific profiling was undertaken in order to
establish the identity of the source of semen or to
connect the same with either of the appellants. The
prosecution also failed to lead any evidence regarding
the probable age or duration of the semen traces
detected in the vaginal swab. In the absence of such
scientific evidence, no definite inference could be
drawn that the deceased-victim had been subjected
to sexual intercourse proximate to the time of her
death or that the semen detected in the vaginal swab
belonged to either of the appellants. Consequently,
the aforesaid forensic evidence, viewed in the
backdrop of the serious infirmities attending the
recoveries and chain of custody of the seized articles,
76
Criminal Appeal No(s).1342-1343 of 2018 and connected matter
cannot be treated as a conclusive incriminating
circumstance against the appellants.
87. The prosecution has sought to attribute a
motive to the appellants by alleging that they
subjected the deceased-victim to sexual assault in
order to satisfy their carnal desires and thereafter
caused her death when she resisted. However, the
evidence brought on record does not lend credence to
this theory of motive. Significantly, Dr. B.S. Aswal
(PW-12), who medically examined Accused No.1 -
Mehtab, categorically deposed that owing to a
medical condition suffered by the said accused, it was
not possible for him to engage in sexual intercourse.
This aspect assumes considerable importance
because the prosecution case itself proceeds on the
footing that the alleged sexual assault constituted the
genesis of the entire occurrence. In the absence of
any cogent evidence substantiating the alleged
motive, coupled with the medical evidence noticed
above, the prosecution theory that the appellants
committed the offence for satisfaction of their carnal
desires becomes highly doubtful and does not inspire
confidence.
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Criminal Appeal No(s).1342-1343 of 2018 and connected matter
88. Upon a cumulative evaluation of the disclosure
statements, the recoveries allegedly effected
pursuant thereto, and the forensic evidence relied
upon by the prosecution, we find that none of these
circumstances inspire confidence or withstand
judicial scrutiny. The prosecution has failed to
establish the genuineness of the recoveries, the
sanctity of the seized articles, or an unbroken chain
of custody from the stage of seizure till their
examination at the FSL. The evidence on record is
replete with mat erial omissions, procedural
irregularities and unexplained deficiencies which
substantially erode the evidentiary value of both the
recoveries and the forensic reports founded thereon.
Even otherwise, the forensic evidence, in the absence
of any conclusive scientific linkage such as DNA
profiling and in view of the doubtful provenance of
the samples themselves, falls far short of establishing
the involvement of the appellants beyond reasonable
doubt. Consequently, this entire set of circumstances
fails to provide a reliable incriminating link in the
chain of circumstantial evidence and is wholly
insufficient to sustain the conviction of the
appellants.
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Criminal Appeal No(s).1342-1343 of 2018 and connected matter
CONCLUSION: -
89. In wake of the discussion made hereinabove, we
are of the considered view that the prosecution has
failed to establish either of the two prime
incriminating circumstances sought to be relied upon
against the appellants. Neither does the evidence
regarding the alleged “last seen together”
circumstance and identification of the appellants
through Anusuiya (PW-2) and Alka Chauhan (PW-4)
inspire confidence, nor can the alleged recoveries and
the forensic evidence flowing therefrom be accepted
as genuine and reliable. On the contrary, the material
placed on record creates a serious doubt regarding
the fairness of the investigation and the credibility of
the recoveries allegedly effected at the instance of the
appellants, which constituted the entire edifice of the
prosecution case and formed the basis for the
conviction of the appellants.
90. It is well settled that in a case resting entirely
on circumstantial evidence, each incriminating
circumstance must be firmly proved, and the chain
of circumstances must be so complete as to
unerringly point towards the guilt of the accused and
rule out every hypothesis consistent with innocence.
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Criminal Appeal No(s).1342-1343 of 2018 and connected matter
In the present case, the prosecution has miserably
failed to establish any of the so-called incriminating
circumstances so as to connect the appellants with
the crime in question. The evidence led by the
prosecution suffers from material inconsistencies,
procedural irregularities and serious infirmities
which strike at the very root of the prosecution case.
Consequently, the appellants are entitled to the
benefit of doubt.
91. Upon a careful and minute examination of the
judgments passed by the trial Court as well as the
High Court, we find that, while arriving at the
conclusion regarding the guilt of the appellants, both
Courts glossed over the patent infirmities and
loopholes in the prosecution case, particularly in
relation to the alleged “last seen together”
circumstance and the recoveries purportedly effected
at the instance of the appellants. As these vital
incriminating circumstances have not been proved
beyond all manner of doubt, it would not be safe to
sustain the conviction of the appellants or the
sentence of death awarded to them. Resultantly, the
impugned judgment of conviction and order of
sentence passed by the trial Court, as affirmed by the
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Criminal Appeal No(s).1342-1343 of 2018 and connected matter
High Court, do not withstand judicial scrutiny and
deserve to be set aside.
92. Resultantly, the appeals are allowed. The
impugned judgment of conviction dated 23
rd
January, 2014 and order of sentence dated 27
th
January, 2014 passed by the trial Court and the
common judgment dated 27
th April, 2018 passed by
the High Court are hereby set aside. The conviction
of the appellants and the sentences awarded to them,
by the trial Court and affirmed by the High Court are
also set aside.
93. The appellants are acquitted of all the charges
levelled against them. They are in jail and shall be
released from custody forthwith, if not wanted in any
other case.
94. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH )
...…………………….J.
(SANDEEP MEHTA)
...…………………….J.
(VIJAY BISHNOI)
NEW DELHI;
MAY 27, 2026.
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