2 vs Unknown
2021 Latest Caselaw 4688 UK

    IN THE HIGH COURT OF UTTARAKHAND
              AT NAINITAL


THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA




        CRIMINAL APPEAL NO.221 OF 2014


Between:

Subodh Kumar Sharma                                  ...Appellant

                                and


State of Uttarakhand.                              ...Respondent

Counsel for the : Mr. P.C. Petshali and Ms. Gaura appellant. Devi Dev.

Counsel for the State : Mr. J.S. Virk, learned Deputy of Uttarakhand. Advocate General with Mr. Pradeep Kumar Joshi and Mr. Rohit Dhyani, learned Brief Holders for the State.

Reserved on : 03.08.2021 Delivered on : 23.11.2021

The Court made the following:

JUDGMENT: (per Hon'ble Sri Justice Alok Kumar Verma)

The present appeal has been filed by the

appellant against the judgment dated 02.07.2014/

04.07.2014, passed by the learned District and Sessions

Judge, Pauri Garhwal in Sessions Trial No.28 of 2009,

"State vs. Subodh Kumar Sharma", by which, the

appellant has been convicted for the offence punishable

under Section 302 of the Indian Penal Code (for short,

"IPC") and has been sentenced to undergo imprisonment

for life along with a fine of Rs. 25,000/- in default of

payment of fine, the defaulter convict is directed to

undergo further imprisonment for a period of one year.

The appellant has been further convicted and sentenced

to undergo rigorous imprisonment for a period of three

years along with a fine of Rs. 1,000/- in the offence

punishable under Section 201 IPC in default of which,

the convict is directed to undergo further imprisonment

for a period of three months. Both the sentences are

directed to run concurrently.

2. Briefly stated the prosecution story as it

emerges from re-appreciation of the evidence on record

is that the appellant was the husband of the deceased

Smt. Meetu Sharma. The deceased was married with the

appellant about 10-11 years before her death. They

have two children. At the time of the incident, the

appellant was living with the deceased in his in-law's

house. The informant and the signatory of the inquest

report (Ext. Ka 2) Mr. Mahesh Sharma (PW1) lodged an

FIR (Ext. Ka 10) against the appellant through his

written report (Ext Ka 1) that her niece Smt. Meetu

Sharma had gone to Neelkanth with her husband

Subodh Kumar Sharma on 18.05.2009. At around 3

o'clock in the evening, Subodh Sharma came back home

alone. Smt. Usha Sharma (PW 11), the mother of the

deceased and Divya Sharma (PW 10), the sister of the

deceased, asked Subodh Sharma where is Meetu.

Subodh Sharma had told that Meetu was missed at some

place on the way to Neelkanth. She was searched, but in

vain. When Subodh Sharma was asked again, he told

that Meetu had got down on the way. In this way, he

was changing his statements again and again. On the

next day, dated 19.05.2009, Subodh Sharma lodged a

missing report (Ext. Ka 8) of Smt. Meetu at Rishikesh

Police Station. The informant further stated in his report

dated 20.05.2009 (Ext. Ka 1) that today itself it was

learned that Subodh had told someone that he drove

Meetu out of his way. He strangled her to death and

threw her body in a pit on the way to Neelkanth. The FIR

(Ext. Ka10) was registered at 21:30 hrs. on 20.05.2009

under Section 302 and Section 201 of IPC at the Police

Station Lakshman Jhula.

3. Before the registration of the FIR (Ext. Ka 10),

the appellant had lodged a missing report (Ext. Ka 8) of

the deceased on 19.05.2009 to the effect that his wife

had gone from the house towards Modern School, Jatav

Basti on 18.05.2009 at 09:30 a.m.

4. During the investigation, at the behest of the

appellant, the dead body of the deceased was recovered

on 20.05.2009 in village Jonk, situated on Neelkanth

Marg. The appellant was arrested. At the instance of the

appellant, a rope (Ext. 1) was recovered on 21.05.2009,

by which it is said to have strangulated the deceased.

The recovery memo of the rope (Ext. Ka 3) was

prepared. An Indica car, which was used in the incident

and whose glass was broken at two places, was seized

by the Investigating Officer D.S. Panwar (PW 13). The

recovery memo of the car (Ext. Ka 4) was prepared. The

Investigating Officer collected the earth and one pair half

heel slippers (Ext. 3) from near the dead body. The

inquest proceedings and the post-mortem of the dead

body of the deceased were conducted on 21.05.2009.

The recovered articles were sent for examination. The

statements recorded under Section 161 of the Code of

Criminal Procedure, 1973 and after completion of the

investigation, the charge-sheet (Ext. Ka 19) was filed.

5. The case was committed to the Court of

Session.

6. The charges under Section 302 and Section

201 of IPC were framed. The appellant pleaded not

guilty and claimed to be tried. The learned trial court

recorded the statements of thirteen prosecution

witnesses.

7. The appellant pleaded innocence and false

implication in his statement under Section 313 of the

Code of Criminal Procedure.

8. The learned trial court appraised the evidence

adduced before it and held that the prosecution has

successfully proved its case against the appellant under

Section 302 and Section 201 of IPC.

9. Aggrieved by the judgment and order of

conviction and sentence awarded by the learned trial

court, the appellant appealed to this Court.

10. Heard Mr. P.C. Petshali, the learned counsel

and Ms. Gaura Devi Dev, the learned counsel for the

appellant and Mr. J.S. Virk, the learned Deputy Advocate

General along with Mr. Pradeep Kumar Joshi and Mr.

Rohit Dhyani, the learned Brief Holders for the State.

11. Mr. P.C. Petshali, the learned counsel for the

appellant, would submit that there was no eye-witness

of the alleged offence; the chain of the circumstances of

the incident is broken and not so complete as to infer

the involvement of the appellant with the alleged crime;

the recovery of the dead body of the deceased and the

rope are highly doubtful and is quite contrary to the

prosecution story that the dead body of the deceased

was recovered at the instance of the appellant; the case

of the prosecution is highly improbable; the statements

of the prosecution witnesses are contradictory to each

other; the marriage of the appellant with the deceased

was solemnized in the year, 2000 and since then neither

the deceased nor her family members had any complaint

whatsoever against the appellant; the appellant and the

deceased had been leading their life quite happily, but,

on account of ulterior motive and evil designs a cock and

bull story has been cooked up to implicate the appellant;

the prosecution has failed to assign any motive for the

alleged commission of offence by the appellant; the

appellant himself lodged a missing report of her wife

before lodging the FIR (Ext. Ka 10).

12. As per contra, Mr. J.S. Virk, the learned

Deputy Advocate General for the State, argued in

support of the impugned judgment and submitted that

the prosecution has proved its case beyond all

reasonable doubt.

13. We have carefully assessed the evidence,

adduced by the prosecution.

14. This case rests on circumstantial evidence. No

one had seen the assault by the appellant on the

deceased.

15. It is a well established law that in cases of the

circumstantial evidence, all circumstances relied upon by

the prosecution must be established by cogent and

reliable evidence and all the proved circumstances must

provide a complete chain. The chain of evidence should

be 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.

16. In Sharad Birdhi Chand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116, the Hon'ble

Supreme Court held that when a case rests on

circumstantial evidence, such evidence must satisfy

these tests:-

(i) The circumstances from which the conclusion of

guilt is to be drawn, should be fully

established.

(ii) The facts so established should be consisted

only with the hypothesis of the guilt of the accused,

that it is to say, they should not be explainable on

any other hypothesis except that the accused is

guilty.

(iii) The circumstances should be of a conclusive

nature and tendency.

(iv) They should exclude every possible hypothesis

except the one to be proved.

(v) There must be a chain of evidence to show

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

probabilities, the act must have been done by the

accused.

17. On the basis of the above well-settled

principles, we proceed to examine whether the appellant

can be held to be guilty.

18. The deceased Smt. Meetu Sharma was the

niece of PW1 Mahesh Sharma and PW2 Shiv Kumar

Sharma. PW1 Mahesh Sharma is an informant of the FIR

(Ext. Ka 10). He proved his written report (Ext. Ka 1).

These witnesses stated that the accused Subodh Kumar

Sharma was living with his children in his in-law's house.

PW1 Mahesh Sharma stated that the mother of the

deceased, sister, Divya Sharma, of the deceased and

Rajendra, father of the accused, also lived in that house.

The house of these witnesses are located about a mile

from the house of the deceased. PW 1 Mahesh Sharma

has stated that the deceased had told him that the

accused used to beat her up. PW 1 Mahesh Sharma was

told by the mother of the deceased that the accused had

taken the deceased to Neelkanth at 9 o'clock in the

morning and when he came back, he was alone. She

asked the accused where is Meetu, then, he had told

that Meetu was missed at some place in Neelkanth. He

again told the deceased's mother that Meetu had got

down on the way. PW 1 Mahesh Sharma stated that he

also asked the accused about the deceased. He had told

him that Meetu was missed at some place in Neelkanth.

According to PW 2 Shiv Kumar Sharma, at around 03:30

p.m. he got a call from his brother Mahesh Sharma, who

told that Subodh Sharma had taken Meetu to Neelkanth,

but, he came back home alone. He further stated that he

himself went and asked the accused about Meetu, then,

he told him that Meetu had got down on the way.

According to these witnesses, the accused was changing

his statements again and again. They stated that on the

date 20th, they went to the Police Station Rishikesh.

They saw that the accused was talking with an unknown

person outside of the police station. The accused was

telling that he had drove Meetu out of his way. He

strangled her to death and threw her body in a pit on the

way to Neelkanth. These witnesses deposed that after

lodging the report (Ext. Ka 10), Station House Officer of

the Police Station Lakshman Jhula took them to

Neelkanth by-pass, where the SHO got a call. After

listening to the phone, he told that Meetu's body has

been recovered at the instance of Subodh and the dead

body is lying on the by-pass road. The SHO, Lakshman

Jhula told them that this has been told to him by the

SHO, Police Station Rishikesh over the phone. The SHO,

Lakshman Jhula had taken them to the spot, where

Rishikesh police and accused were present. Meetu's dead

body was taken out by the Rishikesh police from the pit.

The dead body of the deceased was identified by these

witnesses at around 10:30 - 10:45 night.

19. PW 1 Mahesh Sharma is also a signatory of

the inquest report (Ext. Ka 2). He stated that it was

opined by the panches that the deceased died of

strangulation.

20. According to PW 1 Mahesh Sharma and PW 2

Shiv Kumar Sharma a rope (Ext. 1), used in the

commission of the offence, was recovered on

21.05.2009 at the instance of the accused from 500

meters of the spot. A recovery memo (Ext. Ka 3)

whereof was prepared.

21. PW 1 Mahesh Sharma and PW 2 Shiv Kumar

Sharma are also a signatory of the recovery memo (Ext.

Ka 4) of an Indica car and the recovery memo (Ext. Ka

5) of slippers (Ext. 3). According to these witnesses, the

police had seized the said Indica car from Adaitanand

Marg, Rishikesh and the slippers (Ext. 3) of the deceased

Meetu were found at the spot. These witnesses stated

that at the time of seizure of the said Indica car, the

glass of the car was found broken at two places. PW 2

Shiv Kumar Sharma deposed that one Mr. Honey was

the owner of the said car and the accused had taken the

deceased Meetu to Neelkanth in that car.

22. PW 12 Smt. Anshu Chaudhary, the then

Inspector In-Charge Police Station, Rishikesh, stated

that Subodh Sharma had lodged a missing report of his

wife in Police Station, Rishikesh. In the enquiry of the

missing report, she had interrogated the appellant on

20.05.2009. She stated that the appellant was changing

his statements again and again. So, the appellant was

suspected. She stated that when she asked the appellant

sternly, he told that his wife used to quarrel with him

constantly, so in anger, he strangled her to death with a

rope and he could get the body recovered. Giving full

details of the incident, he told that on 18th he had

returned from Uttarkashi and after returning from

Uttarkashi, he had taken his wife to Neelkanth by car.

Both of them had taken tea at a tea stall near Neelkanth

by-pass. At that place, they quarreled again, as his wife

suspected him to be involved with someone else. They

did not go to Neelkanth, but, started coming back. After

going a short distance, he stopped the car and sat on

the back seat of the car. His wife was sitting in the front

seat. He took out a rope from under the seat and

strangled her with that rope. He took the car forward

and dropped the dead body in the pit and threw that

rope on the way. PW 12 Smt. Anshu Chaudhary deposed

that the appellant further stated that when he was

strangling his wife, the glass of the car was broken. He

came back home and told that her wife was missed

somewhere in Neelkanth. He got the car washed and

gave it to his friend Honey. No one should doubt him,

so, he had lodged the missing report of his wife.

23. PW 12 Smt. Anshu Chaudhary deposed that

she took the appellant along with the police force in a

Government vehicle and reached the place, which was

mentioned by the appellant. The dead body was lying

about 8-10 feet below a culvert. The corpse was seen in

the light of the torch. The site plan (Ext. Ka 18) of the

place of the recovery of the dead body was prepared by

the Investigating Officer D.S. Panwar (PW 13).

24. PW 12 Smt. Anshu Chaudhary stated that the

place from where the dead body was recovered was

under the police station Lakshman Jhula, so, she

informed the S.O. of Lakshman Jhula over the phone.

The S.O. of the police station Lakshman Jhula told her

that an FIR is registered against Subodh at his police

station and he is also looking for Meetu. After a while,

the S.O., Lakshman Jhula came to that place with police

force and the informant Mahesh Sharma. The family

members of the deceased also came there, who had

identified the dead body. She deposed that Subodh

Sharma was handed over to S.O., Lakshman Jhula. She

stated that she along with her police force reached back

to her police station at 2:30 p.m. and this fact is

disclosed from General Diary No.4 (Ext. Ka 6).

25. PW 3 Head Constable Lakhan Singh proved the

General Diary (Ext. Ka 6).

26. PW 4 Dr. Manoj Kumar Verma conducted the

post-mortem of the dead body of the deceased on

21.05.2009. He proved the post-mortem report (Ext. Ka

7). He stated that a blue mark of 2.3 cm. wide and 28

cm. long was present on the front of the neck of the

deceased. According to him, the cause of death of the

deceased was asphyxia due to strangulation. He also

stated that the death of the deceased was possible on

18.05.2009 between 9 a.m. to 3 p.m., if somebody

would have pressed the neck of the deceased with a

rope. It may be pointed out, that there was no dispute

that death of the deceased was homicidal in nature and

the testimony of the doctor on this account is not under

challenge.

27. The missing report (Ext. Ka 8) was registered

by PW 5 Head Constable Buddhi Singh Panwar.

28. PW 6 S.C.P. Yogendra Kumar is a scriber of

chick FIR (Ext. Ka 10).

29. The deceased was niece of PW 7 Anil Sharma.

According to this witness, he got a call from the

deceased's mother on 18.05.2009, who told him that

Meetu went to Neelkanth with her husband at 9 a.m. Her

husband came back alone. He deposed that he himself

went and asked Subodh about whereabouts of Meetu.

Subodh Sharma told him that Meetu was missed, but, he

again told that Meetu had got down from the car. He

was changing his statements again and again. On

receiving information about the dead body, he reached

at the recovery site along with police of Lakshman Jhula

and his brothers. In-Charge, Police Station, Rishikesh

was present at the site of the recovery. Subodh Sharma

was also present at that place. He stated that the dead

body was identified by them. PW 7 Anil Sharma is also a

signatory of the inquest report (Ext. Ka 2).

30. PW 8 Kapil Dev Sharma was the neighbor of

the deceased. He stated that being a neighbor, mother

of the deceased had called him and told that Meetu went

to Neelkanth with her husband at 9 a.m. Her husband

came back alone. He further stated that in front of him,

the family members of the deceased had asked Subodh

about Meetu. Subodh told them that Meetu had got

down on the way. But, again he changed his version and

told that she was missed somewhere on the way. PW 8

Kapil Dev Sharma stated that he also went to the place

where the dead body was lying and at that time, Police

Inspector of Police Station, Rishikesh was present there.

31. According to the Investigating Officer D.S.

Panwar (PW 13), an information was received from Smt.

Anshu Chaudhary (PW 12) on the phone at 10:30 p.m.

on 20.05.2009, after which he along with Sub-Inspector

Narendra Singh (PW 9) and other police personnel

reached the place of recovery of the dead body of the

deceased. He stated that Smt. Anshu Chaudhary (PW

12) had informed him over phone that the body was

recovered at the instance of the appellant.

32. PW 9 Narendra Singh has also testified

supporting the Investigating Officer's statements that

after receiving information from Smt. Anshu Chaudhary

(PW 12), he also accompanied to the recovery site.

According to the Investigating Officer (PW 13) and

Narendra Singh (PW 9), the appellant was arrested at

the place of the recovery of the dead body. The

Investigating Officer (PW 13) and Narendra Singh (PW

9) deposed that the appellant confessed his guilt and

told that he can recover the rope with which he

strangled his wife. They stated that at the instance of

the appellant, a rope (Ext. 1) was recovered at the

crossroads on the road leading to Neelkanth. The

recovery memo (Ext. Ka 3) of the rope was prepared by

Narendra Singh (PW 9). They stated that an Indica car

(UA08B-4414), which was used in the incident and

whose glass was broken at two places, was found in

Rishikesh on 23.05.2009. The recovery memo (Ext. Ka

4) of the said car was prepared by Narendra Singh (PW

9). They stated that one pair half heel slippers (Ext. 3)

of the deceased was collected from near the dead body.

The memo of slippers (Ext. Ka 5) was prepared by

Narendra Singh (PW 9).

33. PW 10 Divya Sharma is the sister of the

deceased. In her deposition, she stated that her sister

died on 18.05.2009 and at that time, she (Divya

Sharma), her mother, her brother-in-law Subodh

Sharma (appellant), her sister Smt. Meetu (deceased),

her sister's two children and her sister's father-in-law

were leaving in her house. She has not supported the

prosecution case and she was treated as a hostile by the

prosecution.

34. PW 11 Smt. Usha Sharma is the mother of the

deceased. She stated that the appellant was residing in

her house. He used to scare and beat his wife. She

deposed that Subodh Sharma had taken Meetu to

Neelkanth in a car at 9 a.m. on 18.05.2009. He came

back at 3 p.m. He had told her that Meetu had got down

on the way. He again told her that she was missed. In

her cross-examination, PW 11 Smt. Usha Sharma has

stated that Subodh was changing his statements again

and again. She stated that she informed Mahesh Sharma

(PW 1). She stated that her daughter Divya Sharma had

divorced her husband Gaurav and the said divorce was

given at the behest of Subodh Sharma. She deposed

that her daughter Divya Sharma is leaving with Subodh

Sharma. PW 11 Smt. Usha Sharma was consistent in her

testimony. The background in which the incident took

place cannot be lost sight of. Here the evidence of PW 11

Smt. Usha Sharma has been tested in the light of the

background facts. Her testimony is cogent, credible,

trustworthy and has a ring of truth and deserves

acceptance.

35. Mr. P.C. Petshali, the learned counsel for the

appellant, argued that PW 10 Divya Sharma, sister of

the deceased, did not support the prosecution case,

therefore, the chain of circumstantial evidence had

failed. The said submission of the learned counsel for the

appellant is not acceptable. It is well settled that merely

because a witness is declared hostile, his/her evidence

cannot be rejected in toto. If any part of the evidence of

a hostile witness is found truthful, the Court can rely on

such part of his/her evidence. In Rajendra vs. State of

U.P., (2009) 13 SCC 48, the Hon'ble Supreme Court

held that merely because of a witness, deviates from his

statement, his evidence cannot be held to be totally

unreliable. In Govindappa vs. State of Karnataka,

(2010) 6 SCC 533, the Hon'ble Supreme Court has

held that deposition of a hostile witness can be relied

upon at least up to the extent he supported the case of

the prosecution.

36. PW 10 Divya Sharma stated that her sister

died on 18.05.2009 and at that time, she (Divya

Sharma), her mother, her brother-in-law Subodh

Sharma, her sister Smt. Meetu, her sister's two children

and her sister's father-in-law were living in her house.

The appellant has not cross-examined this witness.

37. The evidence of PW 1 Mahesh Sharma, PW 2

Shiv Kumar Sharma and PW 11 Smt. Usha Sharma are

corroborated by the evidence of PW 10 Divya Sharma

that at the time of the incident, the appellant was

residing with the deceased in her house.

38. Mr. P.C. Petshali, the learned counsel for the

appellant, submitted that before the registration of the

FIR (Ext. Ka 10), the appellant had lodged a missing

report (Ext. ka 8) of her wife on 19.05.2009 to the effect

that his wife had gone from her house towards Modern

School, Jatav Basti on 18.05.2009 at 9:30 a.m. and this

fact shows that the appellant has been falsely implicated

in this matter.

39. This fact is fully established that at the time of

the incident, the appellant was residing with the

deceased and her family members. According to the

appellant, the deceased went towards Modern School,

Jatav Basti. But, it is not the case of the appellant that

he had informed any member of the family of the

deceased that his wife had gone towards the Modern

School from where she had not returned. The appellant

had neither given any suggestion to any prosecution

witness nor has made any statement in his statement

under Section 313 of the Code of Criminal Procedure,

1973 that the deceased had gone towards the Modern

School, Jatav Basti from where she had not returned.

Under these circumstances, it seems clear that the

appellant had lodged the missing report of his wife with

intention of saving himself.

40. Mr. P.C. Petshali, the learned counsel for the

appellant, contended that it is a settled law that the only

circumstance of last seen will not complete the chain of

circumstances.

41. It is true that Section 106 of the Indian

Evidence Act, 1872 is not intended to relieve the

prosecution of its burden to prove the guilt of the

accused, but would apply to cases where prosecution

had succeeded in proving facts from which a reasonable

inference can be drawn regarding the existence of

certain other facts, unless the accused, by virtue of his

special knowledge regarding such facts succeed to offer

any explanation, to drive the Court to drew a different

inference.

42. PW 11 Smt. Usha Sharma, mother of the

deceased, was consistent in her testimony that the

deceased and the appellant were last seen together.

There is a burden on the appellant to give an

explanation about what happened after they left the

house of the deceased. No explanation was given about

the events of 18.05.2009 after they left from the house

of the deceased. In the examination under Section 313

of the Code of Criminal Procedure, the appellant denied

the evidence of the prosecution witnesses and alleged

false implication. Section 106 of the Indian Evidence Act

imposes an obligation on the appellant to explain as to

what happened after they were last seen together. There

is no such circumstances on the record that why these

statements of the witnesses should not be accepted that

the deceased had gone with the appellant for the last

time, from where she did not return, while the

statements of the witnesses are found natural, reliable,

true and correct version of events. Therefore, the onus

of disproving and contradicting the same shifted upon

the appellant, which onus he has failed to discharge.

When the entire material was put to the appellant under

Section 313 of the Code of Criminal Procedure, the

appellant simply denied the same but has not led any

evidence in his defence on this aspect. Hence, there is

no reason to doubt the evidence adduced by the

prosecution, which conclusively links the appellant with

the offence.

43. The prosecution case is further corroborated

by the recoveries of the dead body of the deceased and

murder weapon "Cord", used for strangulation.

44. Mr. P.C. Petshali, the learned counsel

appearing on behalf of the appellant, argued that the

confession of the appellant made before the police is

inadmissible. It is true that no confession made by any

person while he was in custody of the police shall be

proved against him, but, even when an accused being in

the custody of police makes a statement that reveals

some information leading to the recovery of material or

discovery of any fact concerning to the alleged offence,

such statement can be proved against him. The recovery

is a part of investigation and permissible under Section

27 of the Evidence Act. Section 27 is brought into

operation when a person in police custody produces from

some place of concealment some object, said to be

connected with the crime of which the informant is

accused, and this is admissible in law. In Delhi

Administration vs. Bal Krishan and others, (1972)

4 SCC 659, the Hon'ble Apex Court analyzed the

concept, use and evidentiary value of recovered articles

and held that Section 27 of the Evidence Act permits

proof of so much of the information which is given by

persons accused of an offence when in the custody of a

police officer as relates distinctly to the fact thereby

discovered irrespective of whether such information

amounts to a confession or not, under Sections 25 and

26 of the Evidence Act, no confession made to a police

officer whether in custody or not can be proved as

against the accused. But Section 27 of the Evidence Act

is by way of a proviso to these sections and a statement,

even by way of confession, which distinctly relates to the

fact discovered is admissible as evidence against

accused in the circumstances stated in Section 27 of the

Evidence Act.

45. Analyzing the earlier decisions, in Anter

Singh vs. State of Rajasthan, (2004) 10 SCC 657,

the Hon'ble Supreme Court summed up the various

requirements of the Section 27 of the Evidence Act as

follows :

(1) The fact of which evidence is sought to be given

must be relevant to the issue. It must be borne in

mind that the provision has nothing to do with

question of relevancy. The relevancy of the fact

discovered must be established according to the

prescriptions relating to relevancy of other evidence

connecting it with the crime in order to make the

fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence

of some information received from the accused and

not by accused's own act.

(4) The persons giving the information must be

accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of

information received from an accused in custody

must be deposed to.

(7) There upon only that portion of the information

which relates distinctly or strictly to the fact

discovered can be proved. The rest is inadmissible.

46. In Madhu vs. State of Kerala, (2012) 2

SCC 399, the Hon'ble Supreme Court held that the

rationale behind Section 27 of the Evidence Act is, that

the facts in question would have remained unknown but

for the disclosure of the same by the accused. The

discovery of facts itself, therefore, substantiate the truth

of the confessional statement and since it is true that a

Court must endeavour to search Section 27 of the

Evidence Act has been incorporated as an exception to

the mandate contained in Sections 25 and 26 of the

Evidence Act.

47. In the instant matter, the recovery of the rope

made, when the appellant was in custody, has been

established. The recovery is founded on the statements

of the disclosure. On a studied scrutiny of the evidence

produced by the prosecution regarding this recovery, we

do not find anything that this recovery has really not

been made on the information of the appellant and has

been planted by the police.

48. It has been pointed by the learned counsel for

appellant that there are major defects in the

investigation as no efforts made by the Investigating

Officer, besides others, to take photograph of the Indica

car no.UA08B-4414 and no efforts made to examine

Honey, the alleged owner of the said car. The learned

counsel for the appellant argued that due to the

defective investigation, the conviction is liable to be set

aside.

49. In order to appreciate the contentions of the

learned counsel for the appellant, it is required to be

kept in mind that every defective investigation need not

necessarily result in the acquittal. It would not be just to

acquit the appellant solely as a result of defective

investigation.

50. In Karnel Singh Vs. State of M.P., (1995)5

SCC 518, the Hon'ble Supreme Court has held that in

cases of defective investigation the Court has to be

circumspect in evaluating the evidence but it would not

be right in acquitting an accused person solely on

account of the defect, to do so would tantamount to

playing into the hands of the Investigating Officer if the

investigation is designedly defective.

51. It is well settled that even if the investigation

is improper or defective the rest of the evidence must be

scrutinized independently of the impact of it. In the

instant case, the prosecution has succeeded in

establishing the guilt of the appellant beyond all

reasonable doubt. The appellant has not placed any

material before us to show that any prejudice was

caused to him for the reason of defective investigation.

The said defective investigation or laches in the

investigation does not go to the root of the prosecution

case.

52. The argument of Mr. P.C. Petshali, the learned

counsel for the appellant, is that in absence of motive on

the part of the appellant to cause death, benefit of

reasonable doubt should be given to the appellant.

53. In Bhimapa Chandappa Hosamani vs.

State of Karnataka, (2006) 11 SCC 323, the Hon'ble

Supreme Court observed that it is well settled that in

order to bring home the guilt of an accused, it is not

necessary for the prosecution to prove the motive. The

existence of motive is only one of the circumstances to

be kept in mind while appreciating the evidence adduced

by the prosecution. If the evidence of the witnesses

appears to be truthful and convincing, failure to prove

the motive is not fatal to the case of the prosecution.

The law on this aspect is well-settled.

54. In G. Parashwanath vs. State of

Karnataka, 2011 (1) CCSC 157 (SC), the Hon'ble

Supreme Court has held that in a case based on

circumstantial evidence where proved circumstances

complete the chain of evidence, it cannot be said that in

absence of motive, the other proved circumstances are

of no consequence. The absence of motive, however,

puts the Court on its guard to scrutinize the

circumstances more carefully to ensure that suspicion

and conjecture do not take place of legal proof. There is

no absolute legal proposition of law that in the absence

of any motive an accused cannot be convicted under

Section 302 of IPC. Effect of absence of motive would

depend on the facts of each case.

55. Proof beyond reasonable doubt is a guideline,

not a fetish and guilty man cannot get away with crime

because truth suffers some infirmity when projected

through human processes. Any possibility of bias or

predetermined conclusion has to be excluded. A fact is

said to be proved when, after considering the matter,

the Court either believes it to exist or considers its

existence so probable that a prudent man ought under

the circumstances of a particular case, to act upon the

supposition that it exists.

56. In Mahendra Pratap Singh Vs. State of

Uttar Pradesh, (2009)11 SCC 334, the Hon'ble

Supreme Court referred to the earlier judgment in Inder

Singh and another Vs. State (Delhi

Administration), (1978)4 SCC 161, wherein it has

been held, "Credibility of testimony, oral and

circumstantial, depends considerably on a judicial

evaluation of the totality, not isolated scrutiny. While it

is necessary that proof beyond reasonable doubt should

be adduced in all criminal cases, it is not necessary that

it should be perfect."

57. In State Represented by Inspector of

Police Vs. Saravanan and another, (2008)17 SCC

587, the Hon'ble Supreme Court held that it has been

said time and again by this Court that while appreciating

the evidence of a witness, minor discrepancies on trivial

matters without affecting the core of the prosecution

case, ought not to prompt the court to reject evidence in

its entirety. Further, on the general tenor of the

evidence given by the witness, the trial court upon

appreciation of evidence forms an opinion about the

credibility thereof, in the normal circumstances the

appellate court would not be justified to review it once

again without justifiable reasons. It is the totality of the

situation, which has to be taken note of. Difference in

some minor detail, which does not otherwise affect the

core of the prosecution case, even if present, that itself

would not prompt the court to reject the evidence on

minor variations and discrepancies.

58. It is, therefore, the duty of the court to

scrutinize the evidence carefully and, in terms of the

felicitous metaphor, separate the grain from the chaff.

But, it cannot obviously disbelieve the substratum of the

prosecution case or the material parts of the evidence

and reconstruct a story of its own out of the rest.

59. In Krishna Mochi Vs. State of Bihar,

(2002)6 SCC 81, the Hon'ble Supreme Court ruled that

the Court while appreciating the evidence should not

lose sight of these realities of life and cannot afford to

take an unrealistic approach by sitting in an ivory tower.

Some discrepancy is bound to be there in each and

every case which should not weigh with the court so long

it does not materially affect the prosecution case. In

case, discrepancies pointed out are in the realm of

pebbles, the court should tread upon it, but if the same

are boulders, the court should not make an attempt to

jump over the same. These days when crime is looming

large and humanity is suffering and the society is so

much affected thereby, duties and responsibilities of the

courts have become much more. Now the maxim "let

hundred guilty persons be acquitted, but not a single

innocent be convicted" is, in practice, changing the world

over and courts have been compelled to accept that

society suffers by wrong convictions and it equally

suffers by wrong acquittals.

60. The chain of circumstances proved on the

record against the appellant is as under:-

(i) At the time of the incident, the appellant was

living with his wife, the deceased, in her house.

(ii) The appellant used to beat her because she

suspected that the appellant had relation with other

women.

(iii) The appellant had taken the deceased to

Neelkanth from her house.

(iv) The appellant and the deceased were last seen

together.

(v) The appellant has failed to explain as to what

happened after the appellant and the deceased

were last seen together at 9 a.m. on 18.05.2009.

(vi) On asking the appellant about the deceased, he

was changing his version again and again.

(vii) The appellant had lodged a false missing

report of the deceased.

(viii) The dead body of the deceased was recovered

at the behest of the appellant.

(ix) The cause of the death of the deceased was

asphyxia due to strangulation.

(x) PW 4 Dr. Manoj Kumar Verma conducted the

post-mortem of the dead body of the deceased and

according to him, the death of the deceased was

possible between 9 a.m. to 3 p.m. on 18.05.2009,

if someone would have pressed the neck of the

deceased with a rope.

(xi) The rope was recovered at the instance of the

appellant.

(xii) The recovery of the rope was founded on the

disclosure statement of the appellant.

61. The aforesaid chain of circumstances against

the appellant is of conclusive nature. There is a complete

chain of circumstances which show that in all human

probabilities, the offence has been committed by the

appellant. Therefore, having re-appreciated the entire

evidence on record, we concur with the learned trial

court. It is not a fit case where impugned judgment

requires any interference.

62. For the reasons, as discussed above, this

appeal is liable to be dismissed, and the same is

dismissed accordingly.

_______________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

_________________ ALOK KUMAR VERMA, J.

Dt: 23rd November, 2021 Pant/Neha