Jammu & Kashmir High Court
Unknown vs State Of Jammu & Kashmir Through on 26 February, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 06/2018
c/w Reserved on : 29.01.2026
Conf. No. 10/2015 Pronounced on : 26.02.2026
Uploaded on :27.02.2026
Whether the operative part or full
judgment is pronounced:
Tirath Singh S/o Sh. Swami Raj .... Appellant(s)
R/o Kach Nalthi, Tehsil Bhaderwah,
District Doda
Through: - Mr. Meharban Singh, Advocate
V/s
State of Jammu & Kashmir through .....Respondent(s)
Commissioner/Secretary, Home Deptt.
Civil Secretariat Srinagar/Jammu
Through: - Mr. Raman Sharma, AAG (Sr. Advocate)
with Ms. Jagmeet Kour, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per:Parihar-J
01. The appellant stands convicted by Sessions Judge, Bhaderwah, vide
judgment dated 18.11.2015 “the trial Court” for offences punishable under
Sections 302/363 RPC in FIR No. 98/2013 of Police Station Bhaderwah,
and has been sentenced to capital punishment along with ancillary
sentences. The prosecution case, in brief, is that on 03.07.2013 at about
6:00 PM, the minor daughter of PW-Rakesh Kumar, a student of 5th Class,
went to a nearby Tourism Canteen to fetch Kurkure but did not return
home. Upon search, PW-Rakesh Kumar reached the canteen where PW-
Mohd. Sharif, the shopkeeper, allegedly informed him that the appellant
had purchased Kurkure and a cold drink for the child and had taken her
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along despite being told to send her home. The complainant thereafter
lodged a written report on 04.07.2013 alleging kidnapping. Despite search
efforts, the child could not be traced until 13.07.2013, when the police
received information regarding a dead body lying behind bushes near
Himant Kach Nallah. The body was recovered in a decomposed state and
identified as that of the missing child by PW-Jaswant Singh, her
grandfather.
02. According to the prosecution, the body had undergone advanced
decomposition. After recovery, the appellant was arrested from Nalti
Bhaderwah and allegedly admitted to the commission of the offence during
interrogation. Upon completion of investigation, charge-sheet under
Sections 363/302 RPC was filed. It was alleged that on 03.07.2013, the
appellant enticed the child, took her to a secluded place, sexually assaulted
her, strangulated her to death, and disposed of the body in bushes. The
post-mortem report noted that the lower genital region was eaten by
maggots due to decomposition. Upon receipt of the FSL report, the medical
officer opined that the cause of death was manual strangulation, with time
since death estimated between one to two weeks.
03. The appellant, when charged, denied the allegations and claimed
false implication, asserting that the complainant bore animosity due to a
land dispute and had fabricated the case to exert pressure. He maintained
that he had participated in the search for the missing child and had no role
in the incident.
04. The prosecution relied primarily on the testimonies of the father,
mother, and grandfather of the deceased, and PW-Mohd. Sharif as the “last
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seen” witness. The trial Court, upon appreciation of evidence, held that the
appellant was last seen with the deceased on the evening of 03.07.2013
purchasing Kurkure and cold drink for her and taking her towards bushes
near the Nallah. The decomposed body was recovered on 13.07.2013. The
Court found that the appellant had absconded and had not offered a
satisfactory explanation regarding his conduct. Though the trial Court
observed that sexual assault could not be conclusively proved due to
decomposition of the body, it inferred intention to commit sexual assault
from the surrounding circumstances and held the appellant guilty of
kidnapping and murder. Considering the brutality of the act and the tender
age of the victim, capital punishment was imposed.
05. Learned counsel for the appellant, however, contended that the
prosecution witnesses were close relatives and not eyewitnesses to the
occurrence. Material contradictions were highlighted: the father stated that
the child had gone to purchase Kurkure, whereas the mother stated she had
gone to collect empty plastic bottles. The grandfather admitted he had not
seen the appellant with the deceased. It was argued that the last seen theory
was unreliable, particularly as PW-Mohd. Sharif’s statement was recorded
after twenty two (22) days, and he himself admitted uncertainty regarding
the identity of the child until shown photographs. Other employees present
at the canteen were not examined and there was no independent
corroboration.
06. Further, discrepancies were pointed out regarding the place and
condition of recovery of the body. One witness stated the body was lying in
front of bushes, another stated it was in a cave near the Nallah. The
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complainant claimed the body was without clothes, whereas the seizure
memo mentioned a red salwar. Identification was based solely on clothes
despite decomposition, and no DNA profiling was conducted. There was
no fingerprint examination to support manual strangulation. The medical
officer conceded that the initial report did not mention manual
strangulation, and the final opinion was rendered only after receipt of the
FSL report.
07. It was also argued that the time gap of about ten to eleven days
between the alleged last seen circumstance and the recovery of the body
renders the theory of last seen weak, as the possibility of third-party
intervention cannot be ruled out. The investigation was stated to be
deficient and lacking in scientific corroboration.
08. Per contra, learned counsel for the respondent supported the
impugned judgment, submitting that the trial Court had properly
appreciated the evidence and that the appellant has been in custody since
29.07.2013.
09. PW-Mohd. Sharif, in his deposition, stated that on 03.07.2013 at
about 6:45 PM, the appellant came to the canteen with the deceased,
purchased eatables for her, and left towards bushes despite the girl
appearing nervous. He identified the deceased only after seeing her
photograph the next morning. In cross-examination, he admitted presence
of tourists and other employees and conceded that he did not inform
anyone about the girl’s condition. PW-Pinky Devi stated that her daughter
had gone to collect empty bottles and that the accused later met them and
offered monetary help. She identified the body from clothes. PW-Jaswant
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Singh stated that the body was found in a cave near the Nallah and
admitted he had not seen the accused on the day of the incident. PW-
Rakesh Kumar stated that the accused met him while he was searching for
his daughter and offered financial help. He identified the body as that of his
daughter. The Medical Officer, PW-10 Dr. Shakil-Ur-Rehman, noted
decomposition and deep bruises on the neck and subsequently, opined that
the cause of death was manual strangulation, though he admitted that the
first report did not specifically record strangulation but only bruises on the
neck.
10. Having heard learned counsel for both sides and perused the trial
Court record, we proceed to examine the rival submissions in light of the
settled principles governing cases based purely on circumstantial evidence.
It is trite that where the prosecution case rests on circumstantial evidence
and the theory of “last seen together”, the chain of circumstances must be
so complete as to unerringly point towards the guilt of the accused and
exclude every hypothesis consistent with innocence.
11. The law on the subject stands crystallized by the Constitution Bench
in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC
116, wherein the Hon’ble Supreme Court laid down the five golden
principles (panchsheel) governing conviction on circumstantial evidence. It
was held that (i) the circumstances must be fully established; (ii) they must
be consistent only with the hypothesis of guilt; (iii) they must be conclusive
in nature; (iv) they must exclude every possible hypothesis except that of
guilt; and (v) there must be a complete chain of evidence leaving no
reasonable ground for a conclusion consistent with innocence. The
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distinction between “may be proved” and “must be proved” was further
emphasized in Shivaji Sahabrao Bobade v. State of Maharashtra, 1973
(2) SCC 793 underscoring that suspicion, however strong, cannot substitute
proof.
12. Similarly, in Padala Veera Reddy v. State of Andhra Pradesh
AIR 1990 SC 79, the Hon’ble Apex Court reiterated that the circumstances
relied upon must be cogently and firmly established and must form a chain
so complete that there is no escape from the conclusion that the crime was
committed by the accused and none else.
13. Applying these principles to the case at hand, the prosecution
primarily relies upon the circumstance that the deceased child was last seen
in the company of the appellant on 03.07.2013 at about 5:30-6:00 PM. The
testimony of PW-Mohd. Sharif assumes pivotal significance. He
categorically deposed that the deceased visited his canteen along with the
appellant, who purchased eatables for her and thereafter proceeded towards
a bushy area despite being advised to let the child return home. His
statement under Section 164 Cr.P.C. lends further assurance to his
testimony. The contention of the defence that the witness was examined
belatedly does not, by itself, render his evidence unreliable, particularly
when the delay stands explained and finds support from the complaint
(EXTP-1) lodged promptly by the father, where it is specifically narrated
that parents of deceased were informed by said witness of the deceased
having been seen by him in the company of appellant. In this regard, the
principle laid down in Shyamal Ghosh v. State of West Bengal, AIR
2012 SC 3539 that delay in examination of a witness is a variable factor
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depending on circumstances is apposite. PW-Mohd. Sharif has also
testified that he could not be examined under Section 164-A Cr.P.C, as
after the incident, he had been to his native village and after coming back,
he was taken for making of statement under Section 164-A Cr.P.C. This
fact is also explained by I.O.
14. The prosecution has further established that the dead body of the
child was recovered on 13.07.2013 from an isolated cave area near a nala,
approximately half an hour’s walking distance from the place where she
was last seen with the appellant. The autopsy report (EXTP-SUR) opined
the time since death as one-two weeks, which corresponds with the date of
disappearance. The medical evidence clearly establishes that the cause of
death was manual strangulation. The body, though decomposed, was
identified by the grandfather and another witness on the basis of clothes
worn by the child. While the Investigating Agency failed to obtain DNA
comparison or properly match hair samples recovered from the cave, such
lapses, as consistently held by the Hon’ble Supreme Court, do not ipso
facto demolish the prosecution case when otherwise reliable evidence is
available.
15. The defence has stressed the time gap of ten days between the “last
seen” circumstance and the recovery of the body, contending that the
possibility of intervention by a third person cannot be ruled out. It is true
that in Mohibur Rahman v. State of Assam, AIR 2002 SC 3064, the
Apex Court acquitted an accused where the sole circumstance of last seen
was not supported by other connecting links. However, the Court in that
very decision upheld conviction of a co-accused where additional
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incriminating circumstances existed. Likewise, in Prakash v. State of
Rajasthan, AIR 2013 SC 1474, conviction was sustained where last seen
evidence, coupled with recovery and identification of articles, formed a
complete chain. The fact that tourists were present or that other employees
were not examined does not render the evidence of PW-Mohd. Sharif
otherwise, credible testimony unreliable. Non-examination of every
possible witness is not fatal where the evidence of the witness examined
inspires confidence.
16. In the present case, the “last seen” circumstance does not stand in
isolation. It is accompanied by (i) the appellant’s unexplained absence from
the village immediately after the child went missing; (ii) his failure to join
the search operations, though his brothers participated; (iii) recovery of the
body from the direction towards which he was seen proceeding with the
child; and (iv) medical evidence consistent with homicidal death within the
relevant time frame. The appellant’s plea of false implication due to land
dispute remains a bald assertion unsupported by any defence evidence nor
has he been able to extract any such relevant material from the cross-
examination of material witnesses.
17. The fact that the appellant allegedly offered monetary assistance to
the father of the deceased during the search instead of expressing genuine
concern, is a conduct that may be taken into account under Section 8 of the
Evidence Act. More significantly, his whereabouts from 04.07.2013 till his
arrest on 15.07.2013 remained unexplained. The fact as to where he was
during this crucial period was especially within his knowledge. In such
circumstances, the trial Court rightly invoked Section 106 of the Evidence
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Act. While Section 106 of the Act does not relieve the prosecution of its
primary burden, it permits the Court to draw an adverse inference where
the accused fails to explain facts peculiarly within his knowledge, once the
prosecution has established foundational facts. The trial Court rightly
observed that sexual assault could not be conclusively proved due to
decomposition of genital organs. However, failure to establish sexual
assault does not detract from the charge of murder. The essential
requirement was to prove that the death was homicidal and that the
appellant was responsible. The circumstances on record satisfy that
requirement beyond reasonable doubt.
18. Thus, the prosecution has successfully proved the following
incriminating circumstances:-
1. The deceased was last seen in the company of the appellant on
03.07.2013 in the evening hours.
2. The appellant failed to satisfactorily explain his conduct and
absence immediately thereafter.
3. The dead body was recovered from an isolated area consistent
with the direction in which the appellant was seen proceeding
with deceased.
4. The medical evidence establishes homicidal death within a
time frame matching the disappearance.
19. During the course of hearing, counsel for the appellant had placed
reliance on Criminal Appeal No. 2973 of 2023 titled Manojbhai
Jethabhai Parmar (Rohit) versus State of Gujarat and AIR 2002 SC
3164 with the argument that the prosecution case had missing links which
it had not been able to establish before the trial Court, so merely on the
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strength of circumstance of last seen together, the appellant could not have
been convicted. We have examined both the authorities, on which reliance
is placed and find both operate in different circumstances. The delay in
examination of PW-Mohd. Sharif has been successfully explained by the
prosecution and at the cost of repetition, we have already discussed this
aspect and do not find to reiterate it again. Though it is laid in AIR 2002
SC 3164 (supra) that if the explanation offered for the delay in
examination is plausible and acceptable, the Court accepts the same as
plausible. There is no reason to interfere with the conclusion. In that case
also, the Hon’ble Apex Court had found that if there is any delay in
examination of particular witness, it cannot be taken as a routine that the
prosecution version becomes suspect. It all depends upon facts and
circumstances of the particular case and cannot be used as a thumb rule to
dislodge the prosecution. In fact, the reliance placed on AIR 2002 SC 3164
goes against the arguments of counsel for the appellant.
20. When these circumstances are cumulatively assessed in light of the
principles laid down in Sharad Birdhichand Sarda (supra) and subsequent
authorities, they form a chain so complete that it leaves no reasonable
hypothesis consistent with innocence. The defence suggestions remain
speculative and unsupported by evidence. The lapses in investigation,
though regrettable, do not create a dent in the otherwise cogent and
consistent prosecution case.
21. Accordingly, the theory of last seen together, reinforced by conduct
evidence, recovery, medical opinion, and failure of the appellant to explain
incriminating circumstances within his special knowledge, stands proved
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beyond reasonable doubt, satisfying the stringent tests governing
conviction based on circumstantial evidence.
22. The question that remains is whether the sentence of death awarded
by the trial Court should be confirmed. The governing principle is that
death penalty is to be imposed only in the “rarest of rare” cases, when the
alternative option of life imprisonment is unquestionably foreclosed. While
the murder of a girl child is undoubtedly a grave and heinous crime and
constitutes a significant aggravating circumstance, sentencing requires a
balanced consideration of both aggravating and mitigating factors.
23. In the present case, the conviction rests entirely on circumstantial
evidence. There is no direct eyewitness account of the occurrence. The
medical evidence, though establishing homicidal death, does not disclose
extraordinary brutality beyond the act of strangulation itself. Sexual assault
was not proved. There is no material to show that the appellant is a habitual
offender or that he poses a continuing threat to society. The record does not
indicate prior criminal antecedents.
24. While the offence is undoubtedly serious and deserving of severe
punishment, it cannot be said that the case falls within that narrow category
where life imprisonment would be wholly inadequate and the alternative
option foreclosed. The ends of justice would be served by imposing
imprisonment for life.
25. Accordingly, while the conviction of the appellant under Sections
302 and 363 RPC is maintained, the sentence of death awarded by the trial
Court, is commuted to imprisonment for life. The appellant shall undergo
imprisonment for life for the offence under Section 302 RPC, along with
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the sentence awarded for the offence under Section 363 RPC, as directed
by the trial Court. The reference for confirmation of death sentence is
answered in the negative to the extent indicated above. The appeal is partly
allowed to the extent of modification of sentence. Record of the trial Court
be sent back alongwith copy of this judgment with direction to the trial
Court for further compliance.
(SANJAY PARIHAR) (SANJEEV KUMAR)
Judge Judge
JAMMU
RAM MURTI
26.02.2026
Whether the order is speaking?: Yes
Whether the order is reportable?: Yes