Delhi High Court
Anil Kumar @ Kallu vs The State (Nct Of Delhi) on 21 April, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 05thFebruary, 2026
Pronounced on: 21st April, 2026
+ CRL.A. 557/2004
ANIL KUMAR @ KALLU .....Appellant
Through: Ms. Inderjeet Sidhu, Adv.
(DHCLSC) with Ms. Devyani
Singh, Advs.
Versus
THE STATE (NCT OF DELHI) .....Respondent
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav, Adv.
and Insp. Mahesh, PS-Dabri.
+ CRL.A. 168/2005
SURYA NARAIN ....Appellant
Through: Mr. Vikasdeep Sharma, Mr.
Shafiq Khan, Ms.Tanya
Sharma, Ms. Anjani Suri, Mr.
Sudarshan Jha, Advs.
versus
STATE .....Respondent
Through: Mr. Aman Usman, APP with
Mr. Manvendra Yadav, Adv.
and Insp. Mahesh, PS-Dabri.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
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RAVINDER DUDEJA, J.
1. The present appeals have been preferred by the appellants
against the judgment of conviction dated 01st May 2004 and the order
on sentence dated 05th May 2004 passed by the learned Additional
Sessions Judge, New Delhi [“trial court”], in Sessions Case No.
65/1997, arising out of FIR No. 288/1997 registered under sections
302/394/34 of the Indian Penal Code,1860[“IPC“] at Police Station
Dabri. Since both appeals emanate from the same FIR, and assail the
common impugned judgment and order on sentence, they are being
disposed of together by this common judgment.
Brief facts of the case:
2. The criminal machinery was set into motion on the basis of an
information received on 09th May, 1997 at around 2.00 pm at PS Dabri
regarding a murder at House no. 120/396, Shiv Puri, following which,
SI Madan Lal (PW-15) along with Constable Brij Mohan reached the
spot and found the body of Dooja Devi lying in the house. On
examination of the body, it was found that the neck of the victim was
slit with a sharp-edged weapon. There were three deep cut marks on
the neck and a chunni was found tied around the neck. There was also
a small cut mark on the left shoulder of the victim. A vegetable cutting
‘Darati’ was lying near the refrigerator. The rooms at the first floor of
the house were found ransacked. The main gate of the house was
locked from inside while the rear gate was found open. From the
circumstances, it appeared to be a case of murder and robbery, and
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therefore PW-14 Inspector Ombir Singh, who also reached at the spot,
prepared the Rukka Ex. PW-6/A and got the FIR registered under
Section 392/302 IPC.
3. During investigation, it was revealed that both the appellants,
namely Anil Kumar @ Kallu and Surya Narain, were last seen in the
company of deceased Dooja Devi at the rear door of the house shortly
before the incident and were later seen leaving the vicinity soon after
the murder with a grey colour bag, which contained robbed articles
including gold and silver ornaments and cash etc. Appellant Anil
Kumar was arrested. He made a disclosure statement leading to the
recovery of stolen articles, while appellant Surya Narain was arrested
from Bihar with a suitcase containing jewellery and other valuables
belonging to the deceased. Surya Narain got recovered two blood
stained shirts, one worn by him and another worn by Anil Kumar at
the time of incident from House No. RZ-64, Gali No. 5, Kailash Puri.
Statements of witnesses were recorded under Section 161 Cr. P.C and
on completion of investigation, charge sheet was filed against both the
appellants under Section 302 and 394 read with Section 34IPC and the
appellants were sent to court for trial.
4. Charge under Section 394/302/34 IPC was framed against both
the appellants, to which, they pleaded not guilty and claimed trial.
5. Prosecution examined as many as 17 witnesses, including the
witnesses of last seen evidence, husband of the victim, police officials,
the doctor and formal witnesses.
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6. Statements of both the appellants were recorded under Section
313 Cr.PC, wherein, they stated that they were innocent.
7. In his defence, Surya Narain examined DW-1 Jawala Singh to
prove that police had picked him from his house on 09th May, 1997
and took him to the police station and falsely implicated him in the
present case.
8. After the conclusion of the trial, the learned Trial Court
convicted the appellants under Sections 394/302/34 of the IPC vide
judgment dated 01.05.2004.
9. Vide separate order on sentence dated 05.05.2004, both the
appellants were sentenced under Section 394/34 IPC to undergo
rigorous imprisonment for seven years each and to pay a fine of Rs.
5,000/- each, in default of payment of fine to further undergo simple
imprisonment for five months each. They were further sentenced
under Section 302/34 IPC to undergo imprisonment for life each and
to pay a fine of Rs. 10,000/- each, in default of payment of fine to
further undergo simple imprisonment for ten months each, with both
the sentences directed to run concurrently.
10. Aggrieved thereby, the appellants have preferred the present
appeals. The sentence awarded to Appellants Anil Kumar and Surya
Narain was suspended on 18th August 2006 and 11th August 2005,
respectively.
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Submissions on behalf of Appellant No.1 – Anil Kumar @ Kallu:
11. The learned counsel for Appellant No.1 submits that the entire
prosecution case rests solely on circumstantial evidence. It was argued
that the learned Trial Court erred in recording conviction by relying
mechanically on oral testimonies without subjecting them to strict
scrutiny, as mandated in cases based on circumstantial evidence. The
evidence on record, when examined holistically, does not form a
complete and unbroken chain leading exclusively to the guilt of the
appellant. At best, the case is founded on suspicion and conjectures,
which, however grave, cannot substitute proof beyond reasonable
doubt. The Trial Court failed to notice glaring contradictions inter se
the prosecution witnesses on material aspects, thereby resulting in
miscarriage of justice.
12. It was further submitted that the prosecution placed undue
reliance on the testimonies of PW-2 and PW-7 to establish the
circumstance of “last seen together.” The learned counsel submitted
that even if their evidence is accepted in its entirety, it is by itself
insufficient to form the basis of conviction. It is an admitted position
that appellant Anil Kumar was residing with the deceased, and his
presence in the house or locality was neither unnatural nor
incriminating. Similarly, accused Surya Narayan was stated to be a
frequent visitor. Therefore, the mere presence of the appellant with the
deceased does not advance the prosecution case. Further, the
possibility of PW-2 and PW-7 being planted witnesses cannot be ruled
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out, as the prosecution failed to establish that they were immediate
neighboursandtheir house locations are not shown in the site plan,
particularly that of PW-2, who allegedly witnessed events from his
house. The assertion that the accused were seen leaving the spot
carrying a grey suitcase containing looted jewellery also remains
unproved.
13. The alleged circumstance of robbery is equally fraught with
serious inconsistencies. The learned counsel submits that the rukka,
stated to have been recorded after the arrival of PW-1, does not
mention any missing articles, thereby rendering the prosecution
version doubtful. The subsequent list of articles supplied by PW-1 in
his supplementary statement does not tally with the articles allegedly
recovered from the accused and placed for Test Identification Parade
(TIP). Significantly, certain jewellery articles recovered from the spot
near the dead body were later shown as having been recovered from
accused Surya Narayan. If robbery was indeed the motive, it remains
unexplained why valuable articles were left at the place of occurrence.
These contradictions strike at the very root of the prosecution’s
robbery narrative, suggesting that the theory was introduced as an
afterthought.
14. The learned counsel further assails the prosecution case relating
to arrest, disclosure statements, and recoveries, contending that these
vital links in the chain of circumstances are wholly unreliable. One of
the prosecution witnesses, PW-5, turned hostile but was not declared
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hostile. The arrest of appellant Anil Kumar was effected after five
days from the vicinity of the place of occurrence, which was also his
place of residence, negating any allegation of abscondence. The
prosecution version that the arrest of the appellant no.1 followed the
disclosure of co-accused Surya Narayan is contradicted by evidence
on record and even by PW-1. No arrest memo was duly proved.
Recoveries are further rendered suspect due to non-joining of
independent witnesses, absence of TIP for the grey suitcase, camera,
and watch, and the admitted fact that the recovered suitcase was not
sealed and was shown to PW-1 by the police prior to identification.
The TIP of jewellery was conducted after nearly one year without any
explanation, and no malkhana entries were proved.
15. Lastly, it was submitted that the Trial Court ignoredgrave lapses
in investigation. The possibility of involvement of third persons was
never ruled out neither investigated. The unknown caller who passed
information was not investigated/examined, and as per PW-2, the son
of the deceased discovered the body first when he entered the house,
yet was not examined. The police initially suspected sexual assault but
abandoned that line of investigation without explanation, reinforcing
the defence claim that the robbery angle was an afterthought. The
description of the place of occurrence itself is contradictory across
police records and oral evidence.
16. It was emphasized that no weapon of offence was recovered,
and articles such as the white button and iron darati seized from the
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spot were not properly investigated. The failure of the appellant to
offer any explanation under Section 313 Cr.P.C. cannot be held
against him, as the accused has a right to remain silent and the
prosecution, having failed to discharge its primary burden of proving
its case beyond reasonable doubt through a complete and credible
chain of circumstances, cannot seek to fill its own glaring loopholes
by drawing adverse inferences from such silence. In these
circumstances, the learned counsel submitted that the prosecution has
failed to prove its case beyond reasonable doubt, and the appellant
Anil Kumar @ Kallu is entitled to the benefit of doubt.
Submissions on behalf of Appellant No. 2-Surya Narayan
17. The learned counsel for Appellant No.2 assailed the prosecution
case at its very foundation by pointing out certain contradictions in the
statements and depositions of PW-1, the complainant who is the
husband of the deceased. It was contended that PW-1, in his statement
under Section 161 Cr.P.C., attributed the information about the
incident from his neighbour Suresh, whereas in his deposition before
the Trial Court he stated that he received a message at his office.
Further inconsistencies arise regarding whether PW-1 entered the
house and discovered missing articles on 09.05.1997 or whether the
house was locked and he was not permitted entry. Furthermore, PW-1
has also vacillated on whether he informed the police about missing
articles on 09.05.1997 or only on 10.05.1997, and whether the list
supplied pertained to missing articles or merely articles lying in the
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house prior to the incident. These contradictions, it is argued, go to the
root of the prosecution case and render PW-1 an unreliable witness.
Notably, PW-1 consistently expressed suspicion only against accused
Anil Kumar @ Kallu, and the name of Appellant No.2 Surya Narayan
did not surface at the initial stage of investigation, despite PW-2 and
PW-7 allegedly being present with him prior to the preparation of the
rukka.
18. It was further submitted that the alleged recovery of jewellery,
cash, saree and a briefcase from the possession of Appellant No.2 is
highly doubtful and appears to be a planted recovery. PW-1, while
deposing before the Trial Court, stated that jewellery and valuables
were kept in a briefcase. However, no such fact finds mention in his
statement under Section 161 Cr.P.C., where only individual missing
articles were listed. The alleged briefcase itself is a commonly
available item, as admitted by PW-7 and PW-13, and no distinctive
identification marks were proved. The inconsistencies regarding the
amount of missing cash, Rs.7,000/- in the police statement and
Rs.13,500/- in court, along with the introduction of a saree not
mentioned earlier, further weaken the prosecution case. It was
submitted that the sealing, custody, and identification of recovered
articles are also shrouded in doubt, particularly when PW-1 initially
stated that the jewellery was shown to him by police and later claimed
that he identified it only in court. Such conduct, according to the
defence, gravely undermines the credibility of the alleged recoveries.
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19. The prosecution’s reliance on PW-2 and PW-7 as last seen
witnesses has also been seriously questioned. It was submitted by the
learned counsel that, PW-2 merely stated that he saw accused
Appellant no. 1/Anil Kumar @ Kallu talking to the deceased, with
Appellant No.2 allegedly standing nearby, without any allegation of
quarrel, weapon, or untoward incident. PW-7, on the other hand, gave
a highly inconsistent version, initially claiming to have seen the
accused from a distance of 1000 yards and later stating that they
passed near his house, with Appellant No.2 carrying a grey suitcase. It
was further submitted that, crucially, PW-7 admitted that such
suitcases are commonly available and failed to state whether the
accused were wearing blood-stained clothes. Despite allegedly being
present with PW-1 from 2.00-2.30 PM onwards and the incident
happened around 1.30 PM, PW-7 claims to have informed the police
only in the evening. The learned counsel submitted that these
contradictions render the ‘last seen’ theory unreliable and insufficient
to implicate Appellant No.2, especially when PW-1 himself did not
initially name him.
20. Learned counsel for the appellant no. 2 raised doubts regarding
the arrest of Appellant No.2 from Madhubani, Bihar. Although
prosecution witnesses PW-10 and PW-13 claimed that the arrest was
effected on 12.05.1997 and transit remand was obtained, however, no
documentary proof of such remand has been placed on record. SI Atul
Kumar Mishra of PS Thana Nagar, Madhubani, an alleged witness to
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the arrest and recovery, was never examined by the Trial Court during
the trial. No independent public witness was joined at any stage of
recovery or arrest. Furthermore, more contradictions were highlighted
among police witnesses regarding the preparation of arrest memos,
disclosure statements, and the sequence of investigation. The alleged
recovery of blood-stained clothes is also rendered meaningless as the
FSL report merely confirms the presence of human blood, without
matching the blood group of the deceased. Fingerprints and
photographs taken at Police Station Dabri were never proved. These
lapses, it was argued, reflect a tainted and hollow investigation.
21. Lastly, it is submitted that the present case rests entirely on
circumstantial evidence, and the prosecution has failed to establish a
complete and unbroken chain pointing only towards the guilt of
Appellant No.2. Reliance is placed on a catena of judgments of the
Supreme Court, including Charan Singh v. State of U.P. MANU/SC/
0226/1959, Arjun Marik v. State of Bihar MANU/SC/1037/
1994, Jaswant Gir v. State of Punjab MANU/SC/2585/2005, State of
UP v. Ashok Kumar Srivastava MANU/SC/0161/1992, Ramreddy
Rajesh Khanna Reddy v. State of A.P. MANU/SC/8070/2006,
and K.V. Chacko v. State of Kerala MANU/SC/0776/2000 and
Mohibur Rahman and Anr. v. State of Assam MANU/SC/0690/2002:
(2002) 6SCC715, which consistently hold that suspicion, however
grave, cannot substitute proof, and that the circumstance of ‘last seen’
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that the statements of the accused persons under Section 313 Cr.P.C.
are not substantive evidence and cannot be used to fill gaps in the
prosecution case. In the absence of credible motive, reliable
recoveries, uncorroborated last-seen evidence, or scientific linkage,
the prosecution has miserably failed to prove the guilt of Appellant
No.2 beyond reasonable doubt. Consequently, the benefit of doubt
must enure to Appellant No.2 Surya Narain.
Submissions made by the State:
22. Mr. Usman learned APP for the State submitted that, the
prosecution case rests entirely on a complete and coherent chain of
circumstantial evidence, which, when taken cumulatively, leads to the
conclusion of the appellants’ guilt. It was submitted that, seventeen
prosecution witnesses were examined, and the appellants were duly
examined under Section 313 Cr.P.C. and were given ample
opportunity to lead defence evidence. Except Appellant No.2, who
examined one defence witness (DW-1) on a limited issue of arrest, no
defence version of substance was presented by the Appellants during
the trial. It was emphasized that, the defence evidence failed to dent or
displace the prosecution case. The trial court, therefore, rightly
proceeded on the basis of unimpeached prosecution evidence.
23. Furthermore, the testimony of PW-1, the complainant and
husband of the deceased, established the occurrence, the fact of
robbery, and the belongingness of the stolen articles. His evidence
regarding the condition of the house, missing articles, registration of
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FIR, and subsequent identification of recovered property was
consistent and credible. The identification of jewellery and other
articles in the TIP and in court conclusively proved the motive of
robbery. This foundational evidence remained unchallenged by the
appellants during the trial, in material particulars. The prosecution
thus proved both the occurrence and motive beyond reasonable doubt.
24. Learned APP further submits that, the circumstance of “last
seen together” was proved through PW-2 and further corroborated by
PW-7. PW-2 deposed that the appellants were seen with the deceased
and both the appellants and the deceased were seen talking to
eachothershortly before her death.Whereas PW-7 saw them leaving
the vicinity with a grey suitcase. The proximity of time between the
last-seen evidence and the discovery of the crime excluded the
possibility of intervention by a third party. The conduct of the
appellants in immediately leaving the locality further strengthened this
circumstance. These facts satisfied the legal requirements governing
reliance on last-seen evidence.
25. The recoveries of stolen articles at the instance of the appellants
formed a vital link in the chain of circumstances. PW-13 and PW-14
proved the arrest of Appellant No.2 from Bihar and the recovery of a
suitcase containing stolen jewellery and other articles from the
residence of Appellant no. 2 within days of the incident. Articles
recovered from Appellant No.1 were also duly proved through reliable
witnesses. The objections raised by the appellants regarding delay in
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Test Identification Proceedings or absence of independent public
witnesses are without merit, particularly in the absence of any
demonstrated prejudice. It is a settled position of law that police
officials are not incompetent witnesses merely because of their official
status, and there exists a presumption in favour of the regularity of
official acts. Reliance was placed upon the Supreme Court decision in
Ram Swaroop v. State of NCT of Delhi, AIR 2013 SC 2068.
Possession of stolen property soon after the commission of the offence
attracts the statutory presumption under Section 114 illustration (a) of
the Evidence Act. The appellants failed to offer any explanation
whatsoever for such possession, thereby reinforcing the prosecution
case.
26. The recovery of blood-stained clothes pursuant to the disclosure
statements under Section 27 of the Indian Evidence Act, 1872
constitutes an additional and significant incriminating circumstance
against the appellants. PW-5 and PW-10 have consistently proved the
factum of recovery, and the FSL report confirms the presence of
human blood on the seized clothes. However, since the recovery in
this case is late, after 6 days, the blood over the clothes would have
likely got putrefied, making it difficult to ascertain the blood
grouping. The chain of custody stands duly established, as the sealed
parcels were proved to have been deposited and received by the FSL
in intact condition. Significantly, no suggestion of tampering or
fabrication was put to the Investigating Officer during cross-
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examination, thereby lending further credibility to the prosecution
version.
27. It was submitted by the learned APP that the contention
regarding lack of proof of ownership of the recovered clothes is
wholly untenable. The appellants never disputed either the recovery or
the fact that the clothes belonged to them, and in any event, the
prosecution is not required to establish ownership of old and used
clothes. What is material under Section 27 of the Evidence Act is the
exclusive knowledge of the accused regarding the place of
concealment, which renders the recovery admissible and relevant.
Once blood-stained clothes are recovered at the instance of the
accused, the burden shifts upon them to explain the presence of
bloodstains, a fact especially within their knowledge, which they
failed to do. Although blood grouping could not be determined due to
degradation over time, the detection of human blood, coupled with a
duly proved seizure memo and an intact chain of custody, attracts the
presumption of regularity of official acts and further strengthens the
prosecution case.
28. Lastly it was submitted that, medical evidence was led through
PW-4 Dr. K. Murtaza, who conducted the post-mortem examination
of the deceased. He found eight ante-mortem injuries, including
incised and blunt force injuries, and opined that the cause of death was
shock due to injury to the neck vessels. This medical opinion
conclusively established homicidal death and was fully consistent with
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the prosecution version of a violent assault during the commission of
robbery by the appellants. The medical evidence, when read with the
FSL report and seizure memos Ex.PW14/A to PW14/F, further
corroborates the prosecution case. The cumulative effect of motive,
last-seen evidence, recoveries, scientific and medical evidence formed
a complete and unbroken chain. No perversity, illegality, or material
irregularity was shown in the findings of the trial court. The omissions
alleged under Section 313 Cr.P.C. caused no prejudice to the
appellants, as they failed to demonstrate or disclose any manner in
which non-putting of such incriminating circumstances resulted in
prejudice or failure of justice to them.
29. Reliance was placed upon the decisions in Bhimsingh v. State
of Uttarakhand, (2015) 4 SCC 281, State of Goa v. Pandurang
Mohite, AIR 2009 SC 1066, Rohtas Kumar v. State of Haryana,
2013 (82) ACC 401 (SC), Prithipal Singh v. State of Punjab, (2012)
1 SCC 10, Ashok v. State of Maharashtra, (2015) 4 SCC 393,
Surinder Kumar v. State of Punjab, Crl. Appl No. 512/2009, Rahul
Mishra v. State of Uttarakhand, AIR 2015 SC 3043, State of Punjab
v. Sawaran Singh, Crl.A no. 763/1997, dated 25.07.2005, SC and
Suresh Chand Bhari v. State of Bihar, Crl.A No. 329/1992, in
support of his submissions. Accordingly, the conviction and sentence
under Sections 302/392/34 IPC merit confirmation.
Analysis and Conclusion:
30. We have heard the rival submissions made by the parties and
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have perused the record.
31. The prosecution case is based on circumstantial evidence. The
prosecution mainly relies upon the testimonies of PW-1 (Mr. Mudrika
Prasad), PW-2 (Mr. Shiv Kumar), PW-3 (Dr. K. Goyal), PW-7 (Mr.
Mahinder Singh), PW-10 (HC Mani Ram) and PW-14 (Inspector
Ombir Singh). Generally speaking, the circumstantial evidence
revolves around three principal circumstances namely, ‘motive’, ‘last
seen together’ and ‘recovery’. Conviction can be sustained on
circumstantial evidence provided the chain of circumstances is
complete and points unerringly towards the guilt of the accused. Each
circumstance must be proved beyond reasonable doubt and must
collectively exclude every hypothesis other than the guilt of the
accused. Tested on these settled principles, the prosecution case, in the
present matter, withstands judicial scrutiny.
32. The principles laid down in Abdul Nassar v. State of Kerala &
Anr. 2025 INSC 35, underscore that in cases based on circumstantial
evidence, the courts must rigorously analyse each witness’s testimony,
clearly draw and articulate reasonable inferences, ensure every
incriminating circumstance is individually proved and collectively
forms an unbroken chain pointing solely to guilt, and provide a
reasonable judgment demonstrating that such conclusions exclude any
plausible hypothesis of innocence. The relevant portion of the
aforesaid judgement reads as under:
“30. We deem it essential to enunciate the
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appreciating and evaluating evidence in cases
based on circumstantial evidence, as follows:
(i). The testimony of each prosecution and defence
witness must be meticulously discussed and
analysed. Each witness’s evidence should be
assessed in its entirety to ensure no material aspect
is overlooked.
(ii). Circumstantial evidence is evidence that relies
on an inference to connect it to a conclusion of
fact. Thus, the reasonable inferences that can be
drawn from the testimony of each witness must be
explicitly delineated.
(iii). Each of the links of incriminating
circumstantial evidence should be meticulously
examined so as to find out if each one of the
circumstances is proved individually and whether
collectively taken, they forge an unbroken chain
consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his
innocence.
(iv). The judgment must comprehensively elucidate
the rationale for accepting or rejecting specific
pieces of evidence, demonstrating how the
conclusion was logically derived from the
evidence. It should explicitly articulate how each
piece of evidence contributes to the overall
narrative of guilt.
(v). The judgment must reflect that the finding of
guilt, if any, has been reached after a proper and
careful evaluation of circumstances in order to
determine whether they are compatible with any
other reasonable hypothesis.”
33. The homicidal death of the deceased stands conclusively proved
through the medical evidence of PW-3 Dr. K. Goyal, who found
multiple ante-mortem injuries and opined that death was caused due to
shock from injury to the neck vessels. This medical opinion remained
unshaken in cross-examination and is fully consistent with the
prosecution version of a violent assault. The defence has not come out
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with any alternative cause of death. Thus, the foundational fact of
homicidal death is firmly established.
34. The circumstance of “last seen together” has been proved
through cogent and consistent testimonies of PW-2 and PW-7. PW-2
Shiv Kumar deposed that on 09th May, 1997 at about 12:00 noon, he
saw both the accused present at the rear door of the house of the
deceased Dooja Devi, where, accused Anil Kumar was talking with
her while she was cleaning. This clearly establishes their presence
with the deceased immediately prior to the incident. He further stated
that shortly thereafter, at about 1:00 pm, the deceased was found lying
in a pool of blood. This fact corroborates the close proximity of time
between the presence of the accused and the occurrence of the crime.
PW-2 thus categorically places both the appellants with the deceased
shortly before her death. PW-7 Mahinder Singh, on the other hand,
testified that at about 1:30 pm, on the same day, he saw both the
accused emerging from the street(gali) adjoining the back door of the
house of the deceased. He further stated that accused Surya Narain
was carrying a grey briefcase at that time. His testimony places the
accused leaving the scene of crime immediately after the commission
of the offence. There is no cross examination of both these witnesses
worth any weight. There is not even a suggestion to the witnesses that
they had not seen the accused in the gali before or after the
occurrence. There is no averment that there was any previous ill-will
or enmity between the accused and the witnesses leading to their false
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implication. The defence that accused Anil Kumar was the resident of
the same area and accused Surya Narain was known to him and was a
visitor at his home, is of no help as no question was put to both these
witnesses regards the same to justify their presence at the place of
occurrence. It is also significant to note that it has come in the
testimony of PW-2 Shiv Kumar that at about 1.00 pm when the son of
Mudrika Prashad came to his house, he found the front door of the
house closed and he entered the house from the backside and saw his
mother lying in a pool of blood. The presence of the appellants with
deceased Dooja Devi alive near the rear gate of the house and later
being spotted by PW-7 in the gali near the back door of the house of
Mudrika Prashad, is also not without any significance.The site plan
does not depict the location of house of PW-2, but the same is of no
significance, as it is nowhere the defence of the accused that the house
of PW-2 was far away from the house of the victim or that he could
not have seen the accused persons talking with the victim from his
house. Though certain inconsistencies were pointed out with regard to
the distance from which PW-7 claimed to have seen the appellants,
minor discrepancies in estimation of distance are but natural and do
not detract from the core of his testimony.The time gap between the
deceased being last seen alive in the company of the appellants,
appellants leaving the scene of crime just after the occurrence and the
discovery of her body, is so narrow that the possibility of intervention
by a third person stands excluded, thereby forming a strong and
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complete link in the chain of circumstantial evidence. The trial Court,
in the impugned judgment, recorded as under:-
” I have gone through the statement of all the
witnesses in this case but the accused persons have
nowhere alleged that they have been falsely
implicated on account of previous enmity with the
complainant Mudrika Prasad or any other family
members of the Mudrika Prasad. Nor they have
alleged that PW Shiv Kumar and PW7 Mahinder
Singh have implicated them on the account of
previous enmity. In the absence of previous enmity
between the parties, they could not implicate them
falsely in a serious case like murder. So in my
opinion witnesses in this case are truthful witnesses
and since they had no enmity with the accused
persons they would not falsely implicate them in a
murder case.”
35. Thus, the argument that PW-2 and PW-7 are unreliable or
planted witnesses is devoid of merit. Their testimonies are natural,
mutually corroborative and inspire confidence. We also like to herein
quote the response of the Appellant No. 1 to a question put to him at
the time of recording his statement under Section 313 of the Cr.P.C.:
“Q1. IT is in evidence against you that on
9.5.97 at about 12 noon PW-2 Shiv Kumar
who runs a grociy shop and knows you saw
you alongwith co-accused at the rear door at
the house of Mudrika Prasad while his wife
Duja Devi was cleaning stairs near the back
door of his house . What have you to say?
A. It is correct.”
36. Additionally, it has been held that the doctrine of last seen
theory rests on the logical presumption that where an individual is last
seen alive in the close company of an accused and is soon thereafter
found dead, the accused must reasonably account for the
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circumstances in which they parted ways as such facts fall particularly
within his knowledge. It has, however, been held that conviction
cannot be sustained merely on the ground that the accused was last
seen with the deceased. The prosecution must establish a complete
chain of circumstances proving the guilt of the accused. Reliance to
this effect may be placed on the judgment of the Supreme Court in
Manoj @ Munna v. The State of Chhattisgarh, 2025 INSC 1466.
37. PW-14 Inspector Ombir Singh, who reached the spot upon
receiving DD No. 23-A, deposed that on reaching the spot, he found
that the house was ransacked and from the circumstances, it appeared
to be a case of murder and robbery.
38. PW-13 SI Harivansh Singh and PW-10 HC Mani Ram proved
the recovery of stolen property, including jewellery and a suitcase,
from the possession of accused Surya Narain. PW-14 Insp. Ombir
Singh also proved the recovery of a wristwatch and camera belonging
to the complainant from accused Anil Kumar pursuant to his
disclosure statement. PW-5 Ct. Rakesh stated in his deposition that
upon the arrest of accused Anil Kumar, his personal search was taken
vide memo Ex. PW5/A and upon interrogation he disclosed that the
clothes which were worn by him at the time of incident was kept by
him at the house of accused Surya Narain. The prosecution
additionally established the recovery of blood-stained clothes of both
accused at the house of Surya Narain, on which human blood was
detected, and no explanation was offered by the accused under Section
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313 Cr. P.C.
39. The recovery of blood-stained clothes at the instance of the
appellant Surya Narain on 16th May, 1997, pursuant to his disclosure
statements constitutes a significant incriminating circumstance and
lends further corroboration to the prosecution case. The FSL report
confirms the presence of human blood on the recovered blood stained
clothes, thereby, establishing a clear nexus between the appellant
Surya Narain and the crime. Although blood grouping could not be
determined, such inability does not diminish the evidentiary value of
the recovery. The appellant’s failure to offer any explanation for the
presence of bloodstains on the clothes recovered from his possession,
a fact especially within his knowledge, assumes considerable
incriminating significance. In State of Rajasthan v. Thakur Singh,
(2014) 12 SCC 211, the Supreme Court held that Section 106 of the
Evidence Act does not shift the general burden of proof from the
prosecution, it obliges the accused to explain facts especially within
his knowledge and failure to offer such explanation, particularly, when
the prosecution has established foundational facts, constitutes a strong
incriminating circumstance consistent with guilt. The relevant paras
read as under;
“15. We find that the High Court has not at all
considered the provisions of Section 106 of the
Evidence Act, 1872 [ “106.Burden of proving fact
especially within knowledge.–When any fact is
especially within the knowledge of any person, the
burden of proving that fact is upon him.
Illustrations(a) When a person does an act with
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and circumstances of the act suggest, the burden of
proving that intention is upon him.(b) A is charged
with travelling on a railway without ticket. The
burden of proving that he had a ticket is on him.”] .
This section provides, inter alia, that when any fact
is especially within the knowledge of any person, the
burden of proving that fact is upon him.
16. Way back in Shambhu Nath Mehra v. State of
Ajmer [Shambhu Nath Mehra v. State of Ajmer, AIR
1956 SC 404 : 1956 Cri LJ 794 : 1956 SCR 199]
this Court dealt with the interpretation of Section
106 of the Evidence Act and held that the section is
not intended to shift the burden of proof (in respect
of a crime) on the accused but to take care of a
situation where a fact is known only to the accused
and it is well-nigh impossible or extremely difficult
for the prosecution to prove that fact. It was said:
(AIR p. 406, para 11)
“11. This [Section 101] lays down the general rule
that in a criminal case the burden of proof is on the
prosecution and Section 106 is certainly not
intended to relieve it of that duty. On the contrary, it
is designed to meet certain exceptional cases in
which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish facts which are ‘especially’ within the
knowledge of the accused and which he could prove
without difficulty or inconvenience.
The word ‘especially’ stresses that. It means facts
that are pre-eminently or exceptionally within his
knowledge. If the section were to be interpreted
otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on
the accused to prove that he did not commit the
murder because who could know better than he
whether he did or did not.”
xxx
18. Reliance was placed by this Court
on Ganeshlal v. State of Maharashtra [(1992) 3 SCC
106 : 1993 SCC (Cri) 435] in which case the
appellant was prosecuted for the murder of his wife
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inside his house. Since the death had occurred in his
custody, it was held that the appellant was under an
obligation to give an explanation for the cause of
death in his statement under Section 313 of the Code
of Criminal Procedure. A denial of the prosecution
case coupled with absence of any explanation was
held to be inconsistent with the innocence of the
accused, but consistent with the hypothesis that the
appellant was a prime accused in the commission of
murder of his wife.”
40. The contention that the prosecution version becomes doubtful
due to the fact that the list of missing articles is not given in the
rukka and the subsequent discrepancies in the list of articles does not
merit acceptance. As may be seen, the rukka Ex. PW-6/A was
prepared on the basis of DD No. 23-A Ex. PW-15/A and not on the
statement of PW-1 Mudrika Prashad. PW-1 Mudrika Prashad deposed
that on reaching his house, he came to know about the murder of his
wife Dooja Devi. On hearing the same, he became perplexed. His
testimony clearly establishes that he was not in a position to
immediately furnish the inventory of the missing articles on 09th May,
1997, obviously, because he lost his wife and was in a state of shock.
In cross examination, PW-1 stated that he came to know about the
entire missing articles in the morning of 10thMay, 1997 and he
supplied the list of stolen articles to the police. Thus, the absence of
detailed list of stolen articles in the rukka stands explained and does
not create any dent in the prosecution case. Minor variations between
the list of missing articles and the recovered articles do not affect the
substratum of the prosecution case, particularly, when the recovered
articles were duly identified by PW-1 in TIP and in court.
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41. The main challenge to the recovery on the ground of non-
joining of independent witnesses or delay in TIP is unsustainable.
Although, it is contended by the appellants that the suitcase,which
contained eight sarees and the jewellery articles, was not sealed but
the fact remains that the other articles recovered from both the
appellants were duly sealed and were identified by PW-1 in the TIP.
Admittedly, there is no independent public witness of recovery but
then there is no rule of law that the police witnesses are unreliable
merely because of their official status. Reliance in this regard may be
placed on the Supreme Court’s decision in Mohd. Naushad v. State
(NCT of Delhi) 2023 SCC OnLine SC 784. There is no presumption
that police officials shall necessarily depose falsely to implicate the
accused. Rather, there is presumption that public officials would
depose truthfully.Insofar as delay in conducting of the TIP is
concerned, while it is desirable that such proceedings be conducted at
the earliest, the same by itself is not fatal to the case of the
prosecution.
42. The motive for the crime, namely robbery, also stands
established through the testimony of PW-1 and in the testimony he has
stated about the missing articles from the house after the crime and the
proved recoveries of those stolen articles at the instance of the
appellants. The disturbed and ransacked condition of the house as was
deposed by the Investigating Officer PW-14 Ombir Singh, missing
valuables from the house as per list given by PW-1 on 10.05.1997,
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and subsequent recovery of those valuables from the appellants after
their apprehension and at their instances, as well as the blood stained
clothes recovered from the house of Appellant Surya Narain at the
disclosure of Appellant Anil Kumar, form a coherent narrative.
Alleged contradictions regarding the exact list of articles or amount of
cash are minor and do not negate the core prosecution case. Motive,
though not indispensable, clearly strengthens the chain of
circumstantial evidence in the present case. The Trial Court rightly
relied upon these cumulative circumstances to uphold the prosecution
version.
43. The appellants’ contentions regarding lapses in investigation,
contradictions in site plans, delay in conducting TIP, or non-
examination of certain witnesses do not create a dent in the
prosecution case. Admittedly, the unknown caller, who passed on the
information to the police, was not investigated/examined, son of the
deceased, who discovered the body first when he entered the house,
has also not been cited as a witness and SI Atul Kumar Mishra, PS
Thana Nagar, Madhubani has also not been cited or examined.
However, we find that nothing turns on their testimonies and
multiplicity of the witnesses would not have served any purpose. Even
otherwise, defective investigation by itself cannot be a ground for
acquittal when substantive evidence otherwise proves the guilt of the
accused. The evidence of material witnesses has remained intact and
trustworthy. The silence of the appellants under Section 313 Cr. P. C,
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in the face of strong incriminating circumstances and no explanation
given by them, further reinforces the prosecution case.
44. The trial Court while convicting the appellants/accused persons
held as under:
” The prosecution has also proved
another circumstance by producing PW1
Mudrika Prasad who has deposed before the
court that on 9/5/97 on receipt of serious
message in his office he came back to his
house on 9/5/97 at about 2.00 or 2.30 P.M.
And he found his wife Dooja Devi was
murdered in the house. He also found that the
jewellery and cash was missing from the house
and goods were lying scattered. He also gave
the list of articles to the police. I have also
gone through the cross examination of this
witness but nothing significant could be
elicited in the cross examination which could
impeach the credibility of this witness. So it is
proved on record by the prosecution that
robbery was committed in the house of PW1
Mudrika Prasad and at the time of robbery his
wife was also murdered by the accused
persons. This witness PW1 has also identified
all the jewellery articles which have been
recovered at the instance of accused persons
including the grey colour bag which was seen
in the hands of accused Surya Narain by PW7
Mahinder Kumar and all the jewellery articles
which were contained in the grey colour bag
have been identified by the witness. This
witness has also identified the camera and
wrist watch which were recovered at the
instance of accused Anil. The camera
Ex.PW5/D and wrist watchEx.P3 and
jewellery articles Ex.P1 to P35 which were
identified by PW1 Mudrika Prasad belong to
him so this is another circumstance proved by
the prosecution against the accused persons.
The next circumstance which has been proved
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by the prosecution against the accused persons
is the recovery of camera and wrist watch
belonging to the complainant PW1 Mudrika
Prasad and was recovered at the instance of
accused Anil in the presence of PW14 SI
Ombir Singh and in the presence of PW16 SI
Jagbeer Singh. I have also gone through the
statements of these witnesses and I have not
found any major discrepancy in the statement
of these two witnesses on the point of recovery
of camera and wrist watch at the instance of
accused Anil. Both these witnesses have
categorically stated that accused was arrested
on 14/5/97 and he was carrying wrist
watchwhich belongs to PW1 Mudrika Prasad
and accused made disclosure statement and
got recovered camera from the house of his
Mama. The grey colour bag and jewellery
articles belonging to Dooja Devi deceased and
PW1 Mudrika Prasad were also got recovered
at the instance of accused Surya Narain in the
presence of PW10 HC Mani Ram and PW13 SI
Harivansh Singh. I have also gone through the
statements of these witnesses but I have not
found any serious discrepancy in the
statements of these witnesses so it is proved
that the grey colour bag and the jewellery
articles belonging to deceased Dooja Devi and
Mudrika Prasad were recovered at the
instance of accused Surya Narain and all these
articles which were recovered have been
identified by PW1 Mudrika Prasad in TIP
before the court. So this is another
circumstance proved by the prosecution that
the articles which were robbed at the time of
commission of crime by the accused persons
have been recovered from both the accused
and were identified by PW1 Mudrika Prasad.
Another circumstance proved by the
prosecution against the accused persons is
that the clothes of both the accused persons
which were blood stained have been recovered
from accused Surya Narain in the presence of
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PW10 HC Mani Ram and PW5 Ct. Rakesh
Kumar. Clothes recovered were two shirts and
two pants out of which one pant and one shirt
belongs to accused Anil Kumar and one pant
and one shirt belongs to accused Surya
Narain. These clothes were found to be blood
stained and as per FSL report Ex.PW14/G and
H human blood has been found on the clothes
of both the accused persons i.e. one pant of
one accused and one shirt of another accused.
Both the accused persons have failed to
explain as to how the human blood was found
on their clothes which they were wearing at
the time of commission of crime so this is
another circumstance proved by the
prosecution against the accused persons.
Another circumstance proved by the
prosecution against the accused persons is
post mortem report. PW3 Dr. K. Goel
conducted the post mortem of Dooja Devi and
he has found 8 injuries on the person of Dooja
Devi deceased and the injuries were ante
mortem in nature. Injuries no. 1 to 6 were
caused by sharp and cutting weapon by
striking or drawing. Injury no. 7 and 8 were
caused by blunt force possible by friction
against hard rough surface. In his opinion
cause of death was haemorrhagic shock
consequent to injuries to neck vessels. Injury
no. 1 to 3 were sufficient to cause death
individually or collectively in ordinary course
of nature. Time since death was about 24
hours. Post mortem was conducted by the
doctor on 10/5/97 and the incident took place
between 1.00 to 1.50 P.M. on 9/5/97. So the
medical evidence supports the ocular evidence
of the witnesses that the incident had taken
place between 1.00 to 1.50 P.M. on 9/5/97.
I have gone through the statements of
witnesses. Since the deceased was last seen
alive in the company of accused persons at
about 12.00 noon and thereafter she was never
seen alive by anyone and further the recovery
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of the robbed articles has been made at the
instance of accused persons from their
possession. All these allegations of the
prosecution were put to the accused u/s 313
Cr.P.C. But they did not offer any explanation
consistent with their innocence regarding the
incriminating facts proved against them, they
by itself is a circumstantial fact against
them…..”
45. Recovery of stolen articles were affected from the accused
within 4-5 days of the incident. Recovery of stolen articles soon after
their robbery leads to presumption of guilt of accused. In Gulab
Chand v. State of M.P. (1995) 3 SCC 574, the Supreme Court held
that a presumption of guilt under Section 114 illustration (a) of the
Evidence Act may be drawn when stolen property of the deceased is
found in the possession of the accused soon after the murder, but such
presumption weakens or disappears if a considerable time gap has
elapsed. The relevant paragraph reads as under:
“4. …The High Court has placed reliance on the
other decision of this Court rendered in Tulsiram
Kanu v. State [1951 SCC 92 : AIR 1954 SC 1 : 1954
Cri LJ 225]. In the said decision, this Court has
indicated that the presumption permitted to be
drawn under Section 114, Illustration (a) of the
Evidence Act has to be read along with the
“important time factor”. If the ornaments in
possession of the deceased are found in possession
of a person soon after the murder, a presumption of
guilt may be permitted. But if several months had
expired in the interval, the presumption cannot be
permitted to be drawn having regard to the
circumstances of the case. …”
46. Just to summarise, in order to establish its case, prosecution
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examined seventeen witnesses, each contributing a vital link in the
chain of circumstantial evidence. PW-1, Mudrika Prasad, deposed that
upon returning home he found his wife murdered and, though initially
not permitted to enter, later identified the missing jewellery and
articles and informed the police, thereby establishing both the
occurrence of robbery and identity of stolen property. PW-2, Shiv
Kumar, proved the “last seen” circumstance by stating that he saw
both accused at about noon at the rear door of the house, with accused
Anil Kumar conversing with the deceased. PW-7, Mahinder Singh,
further corroborated this by deposing that he saw both accused leaving
the vicinity shortly after the incident, with accused Surya Narain
carrying a briefcase. The medical evidence of PW-3, Dr. K. Goyal,
conclusively established homicidal death caused by multiple ante-
mortem injuries, consistent with the prosecution timeline. The
recoveries from another crucial link, as PW-10 and PW-13 proved the
arrest of accused Surya Narain and recovery of a suitcase containing
stolen jewellery and articles from his possession. PW-14, the
Investigating Officer, proved the arrest of accused Anil Kumar and
recovery of a wristwatch from his person and a camera pursuant to his
disclosure statement, which were duly identified by PW-1 in TIP
conducted by PW-17. The prosecution further established that the
blood-stained clothes of both accused persons were recovered at the
instance of accused Surya Narain, and the FSL report confirmed the
presence of human blood on those clothes. These recoveries, made
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within a few days of the incident, directly connect the accused persons
with the crime and remained unexplained by them. Taken
cumulatively, the evidence establishes that the accused were present at
the scene before and after the occurrence and, coupled with the timely
recovery of stolen property and incriminating articles, forms a
complete and unbroken chain of circumstances pointing towards their
guilt.
47. When all the circumstances are taken cumulatively, that is,
homicidal death, last seen evidence, known identities of the accused
persons to the witnesses who had seen the appellants in the vicinity
before and after the murder took place, recoveries of stolen articles at
the instance of the appellants, recovery of blood-stained clothes as
well from the appellant Anil Kumar from the possession of Appellant
Surya Narain, motive for robbery, and medical and forensic
corroboration, they form a complete and unbroken chain leading only
to the guilt of the appellants. The prosecution has successfully proved
its case beyond reasonable doubt. No perversity or illegality is shown
in the findings of the Trial Court. Consequently, the appeals are
dismissed, and the conviction and sentence awarded to the appellants
namely Anil Kumar and Surya Narain are affirmed.
48. Both the appellants, Anil Kumar and Surya Narain are directed
to surrender before the Jail Superintendent within a week from today
to serve their remaining sentence. In the event of failure to surrender,
appropriate steps shall be taken by the State to ensure their arrest for
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undergoing the remaining sentence.
49. A copy of this judgement be sent to the Trial Court and Jail
Superintendent for information and necessary action.
50. The appeals are accordingly disposed of.
RAVINDER DUDEJA, J.
NAVIN CHAWLA, J.
APRIL 21, 2026/na/ik
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