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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.413 OF 2005

State of Himachal Pradesh      … Appellant

Vs.

Raj Kumar.           … Respondent

O R D E R

1. In  this  appeal  judgment  and order  dated 19/11/2004  

passed by the  High Court of Himachal Pradesh at Shimla in  

Criminal Appeal No.401 of 2002 is under challenge.

2. The respondent is the sole accused. He was tried by the  

Additional  Sessions  Judge,  Una,  (Himachal  Pradesh)  for  

offence punishable  under  Section  302 of  the  Indian  Penal  

Code  (“the  IPC”).   The  Sessions  Court  convicted  the  

respondent under Section 302 of the IPC and sentenced him  

to suffer life imprisonment and to pay a fine of Rs.3,000/-.  In  

default of payment of fine, he was ordered to suffer simple  

imprisonment  for  further  period  of  three  months.   The  

respondent preferred an appeal  to the High Court.  By the  

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impugned judgment and order, the High Court set aside the  

order  of  conviction  and  acquitted  the  accused.  Being  

aggrieved  by  the  acquittal  of  the  accused,  the  State  of  

Himachal has approached this Court.  

3. According  to  the  prosecution,  on  1/10/1998  at  about  

7.15 a.m., PW-7 Balbir Singh, Ward Panch and Nambardar of  

Halqua Bhadorkali,  went  to  the Police  Post  Daulatpur  and  

lodged daily diary report (Ex-PA) stating that at about 7.00  

a.m, PW-6 Dev Raj of the same village came to his house  

and informed him that one Ashwani Kumar @ Pinku (“the  

deceased”)  had been killed.   They went to  the house of  

Ashwani Kumar.  They found the deceased lying in a pool of  

blood on a cot with various cut injuries on his head.  PW-9  

immediately  rushed  to  the  Police  Post  on  his  Scooter  to  

lodge the report.  The respondent, who is the brother of the  

deceased also reached the Police Post and disclosed to PW-7  

Balbir Singh that he had murdered his brother with a ‘Darat’.  

On the basis of daily diary report (Ex-PA), First Information  

Report (Ex-PW-11/A) was recorded by PW-11 HC Yog Raj, at  

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the Police Station Gagret.  Investigation was set in motion.  

After completion of investigation, the respondent came to be  

charged as aforesaid.  

4. In  support  of  its  case,  the  prosecution  examined  as  

many as 14 witnesses.  The respondent pleaded not guilty to  

the charge.  In his statement recorded under Section 313 of  

the Code, the respondent denied all the allegations leveled  

against him by the prosecution.    

5.  Admittedly,  the  prosecution  case  is  based  on  

circumstantial  evidence.   The  circumstances  were  

enumerated by the trial court as under:

(1) that the relationship between the deceased   and the accused was not cordial due to the   dispute on account of the possession of the   room;

(2) that on the evening of 30.9.1998, there was  a  scuffle  between  the  accused  and  the  deceased;

(3) that the accused had made an extra judicial   confession  of  his  guilt  on  the  morning  of   1.10.1998 in presence of Balbir Singh;

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(4) that  the  accused  got  recovered  the  blood   stained  Darat  from  his  possession  under   Section 27 of the Indian Evidence Act;

(5) that  he  had  handed  over  to  the  police  his   blood  stained  Pyazama  and  shirt  to  the  police;

(6) that  the  accused  was  seen  with  the  Darat   coming out of the room of the deceased in   the early morning of 1.10.1998 by his brother   Naresh Kumar an Smt. Neelam Kumari;

(7) that  the  blood  group  of  the  Darat,  Chadar   and Pyazama of the accused was opined to   be  the  same i.e.  group  B  by  the  chemical   analyst; and  

(8) that the shirt of the accused the khessi and  pillow cover of the deceased had the blood   stains of human being.”  

6. The trial court held that the circumstances Nos.3, 4 and  

6 were not proved.  Thus, the extra-judicial confession of the  

respondent, the alleged recovery of blood stained Darat from  

the respondent’s possession and the claim of PW-4 Naresh  

Kumar and PW-9 Smt. Neelam Kumari that the respondent  

was seen by them coming out of the room of the deceased  

with a Darat in the early morning of 1.10.1998 are held to be  

not proved.   

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7. Circumstances  Nos.3,  4  and  6  having  been  held  not  

proved, the trial court erred in convicting the respondent on  

the  basis  of  the  remaining  circumstances.   The  strained  

relationship between the respondent and the deceased, the  

scuffle  that  had  allegedly  taken  place  between  them  on  

30/9/1998; the alleged handing over of pyazama and shirt to  

the police by the respondent; same group of blood found on  

Darat (the recovery of which is not proved), on the Chadar  

found on the cot on which the deceased was lying and on  

pyazama of the respondent and human blood found on the  

khessi  and pillow cover  of  the deceased were not,  in  our  

opinion  in  the  facts  of  this  case,  sufficient  to  convict  the  

respondent.   

8. While overturning the trial court’s order, the High Court  

held that the trial  court has rightly held that the first two  

circumstances are proved.  The High Court, however, held  

that strained relationship between the respondent and the  

deceased  and  a  minor  scuffle  between  the  two  is  not  

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sufficient  to  convict  the  respondent.   The  High  Court  

confirmed the trial court’s finding that circumstances Nos.3,  

4 and 6 are not proved.  The High Court further held that  

circumstances Nos.5, 7 and 8 are also not proved and the  

trial court was wrong in holding that they were proved.  The  

upshot of this is that there is a concurrent finding reached by  

the trial court and the High Court that circumstances Nos.3,  

4 and 6 have not been proved.  Having carefully perused the  

impugned judgment and also the evidence on record, we are  

of  the  opinion  that  the  High  Court  has  rightly  held  that  

strained  relationship  and  minor  scuffle  between  the  

respondent and the deceased in the facts of this case is not  

sufficient to convict the respondent.   The High Court has  

discussed circumstances Nos.5,  7 and 8 in  detail  and has  

rightly held them not proved.  We are, therefore, of the view  

that no fault could be found with the impugned judgment.  

9. In  Sharad  Birdhichand  Sarda   v.   State  of   

Maharashtra1,  this Court  laid down the five principles as  

1 (1984) 4 SCC 116

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regards  the  proof  of  a  case  based  on  circumstantial  

evidence.   This  Court  has  reiterated those principles  time  

and again.  They are:

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

xxx xxx xxx

(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.”

10. In our opinion, in this case, for the reasons which we  

have already  noted,  the  chain  of  circumstances  is  not  so  

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complete  as  not  to  leave  any  reasonable  ground  for  the  

conclusion consistent with the innocence of the respondent.  

It  is  not  possible to  say that  in  all  human probability  the  

respondent was the culprit.  The High Court has, therefore,  

rightly set aside the conviction and sentence and acquitted  

the  respondent.   Besides,  while  dealing  with  an  appeal  

against order of acquittal, we have to be cautious.  Unless  

the order of acquittal is perverse, it cannot be overturned.  

We find the impugned judgment  to  be well  reasoned and  

legally sound.  It is not perverse.  The appeal is, therefore,  

liable to be dismissed and is dismissed.   

    …………………………………..J. (RANJANA PRAKASH DESAI)

……………………………………J. (MADAN B. LOKUR)

NEW DELHI; APRIL 17, 2014.  

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