REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 19 OF 2017

SHRI SATISH KUMAR & ANR .....APPELLANT(S)

VERSUS

THE STATE OF HIMACHAL PRADESH & ANR. .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1109 OF 2016

J U D G M E N T

HEMANT GUPTA, J.

1. Criminal Appeal No. 19 of 2017 is preferred by Satish Kumar and

Rajeev  Kumar  whereas  Criminal  Appeal  No  1109  of  2016  is

preferred  by  Lekh  Ram,  against  common judgment  of  the  High

Court of Himachal Pradesh dated 20th September, 2016 whereby

the appeal filed by the complainant was allowed and the order of

acquittal passed by the learned trial court on 30th November, 2012

was  set  aside.  The  appellants  were  convicted  for  the  offences

punishable under Section 302 read with Section 34 of the Indian

Penal Code, 18601 as well as under Sections 25 and 27 of the Arms

Act, 19592.

1  for short, ‘IPC’ 2  for short, ‘Act’

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2. Brief  facts  leading rise  to  the  present  appeals  are  that  on  22nd

December, 2009 at about 07:15 hours, an information (Ex PW 15-

A) was received by Ram Singh (PW-15), Inspector, on phone said to

be by Satish Kumar son of Kanshi Ram, that Ratti Ram son of late

Shri  Roshan Lal,  had died due to  gun shot.   On receiving such

information,  a  Police  team led  by  the  Station  House  Officer  of

Police  Station  Ghumarwin  proceeded  towards  the  place  of

occurrence.  Subsequently, on the statement of Neelam Sharma

(PW-1),  daughter  of  deceased  Ratti  Ram,  FIR  No.  218  was

registered on 22nd December, 2009 at about 14:05 hours.  

3. Neelam Sharma had stated that her father left home at about 8 am

on 21st December,  2009 informing her  that  he would go to  the

house of Karma at Village Chujala and thereafter he would go to

attend his duty at Village Harlog.  But when he did not return till 6

pm, she called on his mobile number but mobile was switched off.

She called in the morning to the Forest Guard to inquire about her

father who told her that her father had not come there to join the

duty.   Thereafter,  she  made  telephone  call  to  accused  Satish

Kumar,  whose house is in front of  her house and sought phone

number of Karma, resident of Village Chujala.  The Police came to

her house on 22nd December, 2009, when she came to know that

her father had died due to gun shot by Satish Kumar and Rajeev

Kumar and the body of his father is lying at Balh Churani forest.

The  motive  of  murder  was  said  to  be  land  dispute  with  Satish

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Kumar pending in Shimla High Court.

4. Ram  Singh  (PW-15),  Inspector,  deposed  that  the  disclosure

statements  of  accused  Satish  Kumar  and  Rajeev  Kumar  were

recorded on 22nd December, 2009 itself.  The statements of both

the accused Satish Kumar (Ext.  PW2/A)  and Rajeev Kumar (Ext.

PW15/C) were recorded in the presence of Jaswant Singh (PW-2)

and Kuldeep Singh (PW-3).  They disclosed that the dead body of

deceased Ratti Ram had been concealed in Balh Churani forest and

that  they  could  get  the  same  recovered.   Both  the  accused

accompanied the Police team to Balh Churani forest and on their

demarcation of the spot, the dead body of deceased Ratti Ram was

recovered on 22nd December, 2009 in the presence of witnesses

Jaswant Singh and Kuldeep Singh.  The memo of taking possession

of dead body is Ex.PW15/F.  A bag was also recovered lying nearby

the  dead  body  which  was  identified  by  Neelam Sharma  (PW-1)

belonging to her father.  The dry soil was also taken from the spot

by the Police and spot map of the recovery of dead body was also

prepared.  Two pellet marks were visible on the stems of bushes.

The embedded pellets were removed with a stone.

5. Subsequently,  on  the  same  day,  another  statement  of  accused

Rajeev Kumar was recorded in respect of disclosure of single barrel

gun  concealed  in  his  house.   The  recovery  memo  is  PW15/G.

Accused Rajeev Kumar also stated that he had concealed empty

cartridge in his house, which was also taken in possession from his

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house on 27th December, 2009.  Accused Lekh Ram is the father of

accused Rajeev Kumar. It is alleged that the gun was licensed in his

name and two live cartridges were recovered from his house.   

6. The Investigating Officer (IO) had also taken possession of blood-

stained soil, leaves and grass particles lifted from the spot; and the

clothes worn by the deceased Ratti Ram.  All these articles along

with the gun, the empty cartridge and the live cartridges were sent

for forensic science examinations.  The report (Ex.PW14/D) dated

22nd March, 2010 in respect of articles such as clothes and blood on

the clothes and the soil was furnished whereas in respect of the

gun, the cartridge was found to be fired from the gun recovered on

the basis  of  disclosure statement of  Rajeev Kumar.   It  was also

reported that traces of gunshot residue on the holes was present

on the clothes worn by the deceased and the range of firing was

distant.   

7. The postmortem was conducted on 23rd December,  2009 by Dr.

N.K. Sankhan (PW-7) who had found multiple injuries on the dead

body of  deceased Ratti  Ram and also found multiple perforated

wounds.  As per his final opinion, deceased Ratti Ram died due to

cardio respiratory failure as a result of injuries to lungs and heart

and hypovolemic shock as a result of gunshot injury.

8. On  the  basis  of  the  evidence  produced,  the  learned  trial  court

acquitted all the accused for the reason that the prosecution has

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failed to prove the guilt of the accused beyond reasonable doubt.

The learned trial court held that the IO was in the knowledge about

the  dead  body,  therefore,  the  question  of  recording  of  the

disclosure statements of accused persons has got no evidentiary

value.  The learned trial court found that the confession of guilt of

the accused persons is  difficult  to be drawn,  rather exculpatory

conclusions  are  deducible.   The  circumstances  are  not  of  a

conclusive nature and do not  exclude every possible hypothesis

consistent with the innocence of the accused.  The learned trial

court returned the following finding:  

“29.  Thus,  in  view  of  the  evidence  as  discoursed aforesaid, it is emerging that investigating officer was in the knowledge about the dead body and in view of this, the  question  of  recording  of  disclosure  statements  of accused  persons  gathers  no  evidentiary  value.  If  the police already had knowledge of the place of recovery then the evidence collected in pursuance to disclosure statements  becomes  inadmissible  and takes  the  case out of purview of Section 27 of the Indian Evidence Act.”

9. The High Court found that the finding of the learned trial court that

the  dead body was  recovered prior  to  the disclosure  statement

made by the accused Satish Kumar and Rajeev Kumar is not cor-

rect. In fact, the dead body was recovered only on the basis of the

disclosure statements.  The High Court further found that the re-

covery of the dead body and the weapon of offence in pursuance

of the disclosure statement stands corroborated with the report of

the  forensic  science  laboratory.  Thus,  the  chain  of  the  circum-

stances is complete so as to warrant conviction of all the accused.  

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10. However, in appeal preferred by the complainant, the judgment of

the  trial  court  was  set  aside.   The  High  Court  held  that  the

postmortem  report  and  the  report  of  the  Forensic  Science

Laboratory emphatically lead to the use of gun (Ext.P/27) by the

accused.   Therefore, there is incriminatory evidence against the

accused.  The High Court held that the dead body was not known

to the prosecution, before the recovery was made in pursuance of

disclosure statement, therefore, the finding of the trial court is not

correct. The High Court also found that even if it is assumed that

the  gun  shot  fired  by  only  one  of  the  accused,  it  would  not

exculpate the incriminatory role of other co-accused in the relevant

occurrence.  

11. The learned counsel  for the appellant  argued that  as the entire

case of the prosecution is based on circumstantial evidence, the

prosecution has to prove the hypothesis that the accused alone

have committed the crime. The prosecution witnesses have given

contradictory statements which does not complete the chain of cir-

cumstances and in fact, the truthfulness of the case of the prose-

cution is  seriously  doubted.  This  Court  in  Sharad Birdhichand

Sarda  v.  State  of  Maharashtra3, delineated  the  conditions,

which must be fulfilled before a case against an accused can be

said to be established on the basis of circumstances. It was held as

under:  

3  (1984) 4 SCC 116

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly,  it  is  a  primary  principle  that  the accused must be  and  not  merely may be  guilty before  a  court  can  convict  and  the  mental distance between ‘may be’ and ‘must be’ is long and  divides  vague  conjectures  from  sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say,  they  should  not  be  explainable  on  any  other hypothesis except that the accused is guilty,

(3)  the  circumstances  should  be  of  a  conclusive nature and tendency,

(4)  they  should  exclude  every  possible  hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that  in  all  human probability  the act  must  have been done by the accused.

154. These  five  golden  principles,  if  we  may  say  so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

12. In  Brajendrasingh  v. State of  M.P.4,  this  Court  held  that  the

4  2012 4 SCC 289.    

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circumstances from which the conclusion of guilt  is to be drawn

should be fully established and should also be consistent with only

one hypothesis  i.e.  the guilt  of  the accused.  The circumstances

should be conclusive and proved by the prosecution. There must

be a chain of events so complete so as not to leave any substantial

doubt in the mind of the Court. The Court held as under:

“27.  There is  no doubt  that  it  is  not  a case of  direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that  the  prosecution  has  to  satisfy  certain  conditions before  a  conviction  based  on  circumstantial  evidence can  be  sustained.  The  circumstances  from  which  the conclusion  of  guilt  is  to  be  drawn  should  be  fully established and should also be consistent with only one hypothesis  i.e.  the  guilt  of  the  accused.  The circumstances should be conclusive and proved by the prosecution.  There  must  be  a  chain  of  events  so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should  cumulatively  point  towards  the  guilt  of  the accused alone. In such circumstances, the inference of guilt  can  be  justified  only  when  all  the  incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt  of  any other person.”  

13. The primary question in the present appeals is as to whether, the

prosecution  has  recovered  the  dead  body  prior  to  recording  of

confessional  statements of  the accused vide Ex.  PW2/A and Ex.

PW15/C of Satish Kumar and Rajeev Kumar.  

14. It is contended that the information with respect to death of Ratti

Ram was received by Inspector Ram Singh (PW-15) on the phone

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by  one  of  the  appellants  Satish  Kumar  at  07.15  hours.   PW-15

proceeded to Balh Churani forest along with other police officials

after receipt of such information.  Ex. PW1/A is the statement of

Neelam Sharma recorded at 12.45 pm by PW-15 at Village Balh

Churani. The FIR is registered at 14.05 hours.  

15. The first  statement of  Neelam Sharma (Ex.  PW 1/A) is  that she

came to know from the police, when they arrived at the village,

that Satish Kumar and Rajeev Kumar have killed her father. She as

PW1 deposed  that  the  statement  of  the  accused  was  recorded

before they proceeded to the forest, and that except ward member

(Jaswant  Singh)  nobody  had  told  her  that  her  father  had  been

murdered  by  Satish  Kumar  and  Rajeev  Kumar.  It  is  after  her

statement was recorded that she went to the forest with the police,

and the witness Jaswant Singh and Kuldeep Singh, and accused

Rajeev Kumar and Satish Kumar. She further deposed that PW-2

Jaswant Singh had informed her before the arrival of the police that

the dead body of her father was lying in the forest. Jaswant Singh

is  ward  member  from  Balh  Churani  of  Gram  Panchayat  Robin.

Some officials proceeded to the spot, whereas some came along

with dead body of her father.  She denied that Balh Churani forest

is a big forest.

16. On the other hand, PW-2-Jaswant Singh was declared hostile when

he  deposed  that  no  disclosure  statement  was  made  by  Rajeev

Kumar  in  his  presence.  He  was  cross-examined  by  the  public

prosecutor. He denied that any disclosure statement was made by

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the accused Satish Kumar and Rajeev Kumar. He also denied that

Rajeev  Kumar  had  signed  any  statement  in  his  presence.  He

denied other recovery memos as well. In the cross-examination by

the accused, he admitted that Balh Churani forest starts near the

house of deceased Ratti Ram and many registered hunters used to

come to  this  forest  for  hunting  prior  to  the  occurrence.   Some

hunters without permission, would also come to the forest.  The

dead  body  of  Ratti  Ram  was  recovered  from  a  distance  of

approximately 1 KM from his house.  The motorable road is at a

distance of  1 ½ KM from the dead body.  He deposed that the

statement  of  Neelam  Sharma  and  accused  Satish  Kumar  was

recorded near the dead body after identification of the dead body.

He deposed that Satish Kumar stated to the police that he fired a

gunshot by mistake but he had not stated that the gunshot was

fired by him and by Rajeev Kumar.  He stated that Rajeev Kumar

had stated to the police that their gun was not used for firing but

was  still  taken  into  possession  by  the  police.  He admitted  that

there were criminal cases between Kanshi Ram, father of Satish

Kumar and himself, but those cases were compromised.

17. PW-3 Kuldeep Singh turned hostile and denied that any statement

was  made  by  accused  Satish  Kumar  and  Rajeev  Kumar  in  his

presence. In cross-examination he deposed that 15-20 persons of

Balh Churani Village had gone to the forest.  He admits that the

dead body was searched by the police and was not demarcated by

anybody else.   

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18. PW-15  Ram  Singh  in  his  cross-examination  deposed  that  the

accused Satish Kumar and Rajeev Kumar were  arrested on 22nd

December, 2009 at 1.30 pm. He categorically deposed that he had

not  informed  Jaswant  Singh  (PW-2)  before  proceeding  from the

police station. He did not enquire with anybody over the telephone

from the police station pursuant to Daily Diary Report.  He deposed

that  he  came to  know that  deceased had died due to  gunshot

injury  before  recording  the  statement  of  Neelam  Sharma.  The

accused Satish Kumar and Rajeev Kumar were questioned in the

presence of Jaswant Singh and Kuldeep Singh. He denied that no

telephone call  was made by Satish  Kumar to  police station.  He

admitted that the place where the dead body was lying was about

1  KM  from  the  house  of  Ratti  Ram  and  both  the  accused

collectively identified the place where the dead body was lying.

19. The phone call was received by police at 7.15 am. The distance of

the place of recovery of dead body in forest from the house of the

deceased is only about 2 Kilometers approx. In the first statement

of Neelam Sharma recorded at 12.45 pm, there is an assertion that

her  father  was  killed  by  gun  shot  by  Satish  Kumar  and  Rajeev

Kumar. How could she disclose the names of the assailants, if the

police had yet to start investigation? The statement of the accused

Satish Kumar was recorded prior to the statement of Rajeev Kumar

which was recorded between 1.30 to 2.00 pm as per PW-15.  But

as per PW-2 Jaswant Singh, the police called him and got the first

confirmation  about  the  incident  from  him,  whereas  the  IO

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completely denied having made any attempt to contact PW-2 to

get any information. As per the IO, he proceeded to Balh Churani

forest after associating Satish Kumar, Jaswant Singh, Kuldeep Singh

and Neelam Sharma. The conclusion of the cause of death as due

to gunshot by Satish Kumar and Rajeev Kumar could find mention

in the FIR, which is the basis of initiating the investigating process,

only if  the dead body had already been recovered.  The IO has

given  contradictory  statement  as  that  of  statement  of  PW-1

Neelam Sharma as well as PW-2 Jaswant Singh. The statements of

the witnesses do not appear to be trustworthy so as to maintain

conviction of the appellants.  The evidence of the prosecution does

not inspire confidence.

20. The entire prosecution case is based upon the telephone call made

by Satish Kumar but no call details have been produced to verify

the correctness of the telephone call.  As per the IO, there was no

verification made in pursuance of the phone call received.  

21. The other incriminating circumstance weighed with the High Court

is the recovery of the single barrel gun with the cartridge from the

house of Lekh Ram, the licence holder.  The report of the forensic

science laboratory would only show that such gun was used in the

commission of crime, but the prosecution has failed to establish

which of  the accused has actually used the gun. The disclosure

statement of the accused Satish Kumar is that he fired from the

gun.  But  the  recovery  of  the  gun  is  on  the  basis  of  disclosure

statement of accused Rajeev Kumar. There is no direct evidence as

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to the use of licensed gun of Lekh Ram, though the gun along with

empty  and  live  cartridges  were  recovered  on  the  statement  of

Rajeev Kumar.  It is not possible to conclusively hold that it was

either Rajeev Kumar or Satish Kumar who fired upon the deceased.

In the absence of the evidence as to which of the two accused fired

upon the deceased, the accused cannot be convicted only on the

basis of recovery of gun used in the commission of crime.   

22. The High Court has convicted all the accused additionally for the

offences  under  Sections  25  and  27  of  the  Act.   None  of  the

conditions mentioned in Section 25 of  the Act are even broadly

extended  towards  all  the  accused  including  Lekh  Ram,  the

licensee.  Section 27 of the Act provides for punishment if whoever

uses any arms or ammunition in contravention of Section 5 of the

said Act.  Again, none of the conditions mentioned in Section 5 are

attracted towards any of the accused including Lekh Ram.  At best,

there could be an allegation of violation of conditions of licence

but, none of the accused have been charged for violation under

Section 30 of the Act.  Therefore, none of the accused is liable for

conviction for any offence under the Act.   

23. In a case based upon circumstantial evidence motive is relevant

but the prosecution has failed to prove any motive on the part of

the accused.  As per the statement of Neelam Sharma (PW-1), the

motive was land dispute with Satish Kumar.  If such was a motive,

then there is no reason for her to contact Satish Kumar, who was

said to be staying near her house, to find out whereabouts of her

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father.  The said motive has no foundation to stand.

24. The trial court has recorded an order of acquittal.  Such order of

acquittal could be interfered with only if there was perversity in the

findings recorded by the trial court.  Mere fact that the High Court

has a different  opinion will  not  be sufficient  to enable the High

Court to set aside the order of acquittal.  The High Court in appeal

took a different view than what was taken by the trial court to set

aside  the  judgment  and  convict  the  appellants  herein.  While

exercising  the  jurisdiction  under  Section  389  of  the  Code  of

Criminal Procedure, 19735, especially when trial court has recorded

a  finding  of  not  proving  the  guilt,  the  Appellate  Court  should

interfere only if the findings are perverse and are not possible by

any  reasonable  person.  The  High  Court  in  an  appeal  against

acquittal  does  not  interfere  only  if  the  Appellate  Court  has  a

different view on process of evidence than what was taken by the

learned  trial  court.  This  Court  in  Chandrappa  and  Others  v.

State  of  Karnataka6 considered  the  scope  of  powers  of  the

appellate court against an order of acquittal passed by the trial

court under the Code and held as under:- “42. From the above decisions, in our considered view, the  following  general  principles  regarding  powers  of appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate Court has full power to review, reap- preciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limi- tation,  restriction  or  condition  on  exercise  of  such

5  For short “the Code” 6  (2007) 4 SCC 415

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power and an appellate Court on the evidence before it may reach  its  own conclusion,  both on questions of fact and of law;

(3) Various expressions, such as, “substantial and com- pelling reasons”, “good and sufficient grounds” “very strong circumstances”, “distorted conclusions”, “glar- ing mistakes”, etc. are not intended to curtail exten- sive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4)  An appellate Court,  however,  must bear  in  mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of in- nocence available to him under the fundamental prin- ciple of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court  of  law.  Secondly,  the accused having secured his acquittal, the presumption of his in- nocence is further reinforced, reaffirmed and strength- ened by the trial court.

(5) If two reasonable conclusions are possible on the basis  of  the evidence on record,  the appellate court should not disturb the finding of acquittal recorded by the trial court.”

25. We find that the High Court interfered with the findings of acquittal

even though the conclusion drawn by the trial court is a possible

conclusion on the basis of evidence on record.  We find that the

prosecution  has  failed  to  prove  the  role  of  accused  in  causing

death of the deceased Ratti Ram inasmuch as the recovery of dead

body  in  pursuance  of  similar  disclosure  statements  made  by

accused Satish Kumar and Rajeev Kumar is  not  proved.   In  the

absence of any evidence led by the prosecution as to who fired the

fatal shot, the benefit of doubt must go to the accused persons and

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was rightly granted by the learned trial court.  

26. Consequently, we find that the order of the High Court convicting

the  appellants  is  wholly  illegal,  unwarranted  and  unjust.  The

conviction  of  the  appellants  for  the  offences  punishable  under

Section 302 read with Section 34 IPC and Sections 25 and 27 of the

Act is set aside.  Accordingly, both the appeals are allowed.  The

order of acquittal recorded by the trial court is restored.  The bail

bonds shall stand discharged.  All the accused be set at liberty, if

not wanted in any other case.   

.............................................J. (UDAY UMESH LALIT)

.............................................J. (INDU MALHOTRA)

.............................................J. (HEMANT GUPTA)

NEW DELHI; MARCH 02, 2020.

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