Holding

The prosecution failed to prove the circumstantial evidence beyond reasonable doubt and the chain of circumstances was not complete, so the appellants must be acquitted.

Summary

The appellants were convicted of murder based on circumstantial evidence that they had last seen the deceased alive, were seen walking near the crime scene, purchased meat, and allegedly pointed out the spot where a blood‑stained stone was recovered. The Supreme Court examined whether each circumstance was proved beyond reasonable doubt, whether it unerringly pointed to guilt, and whether the chain of circumstances excluded all other hypotheses. It found that the "last seen" circumstance, the night‑time pathway observation, the meat‑bag recovery, and the alleged disclosure leading to the stone recovery were either not proved beyond reasonable doubt or did not have a definite tendency to implicate the accused. The disclosure statement under Section 27 Evidence Act was held inadmissible as it did not lead to discovery, and forensic analysis failed to connect the stone to the injuries. Consequently, the prosecution failed to establish a complete chain of incriminating circumstances, and the convictions were set aside, resulting in the appellants' acquittal.

Issues considered

Whether the circumstances relied upon by the prosecution are proved beyond reasonable doubt
Whether the circumstances have a definite tendency unerringly pointing towards the guilt of the accused
Whether the cumulative circumstances form a complete chain that excludes all other hypotheses
Whether the circumstances are consistent only with the hypothesis of guilt
Whether the disclosure statement under Section 27 Evidence Act is admissible
Whether the conviction should be for murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part I IPC

Legislation cited

Code of Criminal Procedure, 1973s. 313
Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 304 Part I, s. 34

Headnote

Issue for Consideration (a) Whether the circumstances relied by the prosecution have been proved beyond reasonable doubt; (b) whether those circumstances are of a definite tendency unerringly pointing towards the guilt of the accused; (c) whether those circumstances taken cumulatively form a that there is no escape from the conclusion that within all human probability the crime was committed by the accused; (d) whether they are consistent only with the hypothesis of the accused being guilty; and (e) whether they exclude every possible hypothesis except the one to be proved.

Subjects

MurderAcquittalMotiveLast seen circumstanceRecoveryDisclosureDiscoveryDefinite tendencyCircumstance proved beyond reasonable doubtDisclosure statementReduction of sentenceChain of incriminating circumstances

Judgment

[2024] 11 S.C.R. 1233 : 2024 INSC 907

Suresh Chandra Tiwari & Anr.
v.
State of Uttarakhand
(Criminal Appeal No. 1902 of 2013)
28 November 2024
[J.B. Pardiwala and Manoj Misra,* JJ.]

Issue for Consideration
(a) Whether the circumstances relied by the prosecution have been
proved beyond reasonable doubt; (b) whether those circumstances
are of a definite tendency unerringly pointing towards the guilt of the
accused; (c) whether those circumstances taken cumulatively form
a chain so far complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused; (d) whether they are consistent only with the hypothesis
of the accused being guilty; and (e) whether they exclude every
possible hypothesis except the one to be proved.

Headnotes†
Penal Code, 1860 – s.302 and s.304 Part-I – On 03.02.1997, at
about 10 AM, PW-7, a cousin of the deceased, lodged an FIR
(Exb. Ka2), inter alia, alleging that on 03.02.1997, at about 9.30
AM, he came to know that dead body of the deceased was
lying in the verandah of one M’s shop – Trial court convicted
the accused-appellants for offences punishable u/ss.302/34
and 201/34 of IPC – The High Court, upon finding that the
accused had no previous criminal record and except injuries
1 and 2 none were dangerous to life and those two could be
a result of a solitary blow, thought fit to alter the conviction
from offence of murder, punishable u/s.302 of IPC, to offence
of culpable homicide not amounting to murder, punishable
u/s.304 Part I of IPC, and thereby reduced the sentence,
accordingly – Correctness:
Held: (a)The trial court and the High Court failed to test the evidence
on record to find out whether the incriminating circumstances were
proved beyond reasonable doubt and whether they were of definite
tendency unerringly pointing towards the guilt of the accused-
appellants; (b) The circumstance of (i) last seen; (ii) recovery of a
meat bag from near the spot; (iii) accused-appellants walking on
*Author
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the pathway near M’s shop in the night; and (iv) accused-appellants
inquiring about the deceased in the evening of 02.02.1997 are
not of a definite tendency unerringly pointing towards the guilt of
the accused-appellants – Circumstance (iii) above, was not even
proved beyond reasonable doubt; (c) The disclosure statement
was not admissible as it did not lead to discovery – The stone,
etc. were allegedly recovered even before the disclosure statement
was recorded – That apart, neither Doctor’s (PW-1’s) statement
nor forensic report could connect them with the crime – (d) In
consequence, no case was made out to hold the appellants
guilty – Thus, the prosecution had failed to establish the chain of
incriminating circumstances, the accused appellants are entitled
to be acquitted of the charges for which they have been tried
and convicted – The High Court also erred in converting the
conviction from one punishable under Section 302 to Section 304
Part I of IPC only because, according to it, the fatal injury could
be a result of a solitary blow – What it overlooked was that there
were multiple injuries on the body of the deceased apart from two
incised wounds on the head with underlying fracture of occipital
bone of the skull – In such a scenario, whosoever committed the
crime had clear intention to kill the deceased – Once that is the
position, in a case based on circumstantial evidence, when no
effort is made on the part of the accused either to take a plea,
or lead evidence to show, that their act would fall in any of the
exceptions to Section 300 IPC, there was no justification at all to
alter the conviction. [Paras 39, 40]

Evidence – Circumstantial – Prosecution case rests on
evidence circumstantial in nature:
Held: As to when on strength of such evidence an accused can
be convicted, the legal principles, as propounded in a series
of decisions of this Court, may be summarized thus: (i) the
circumstances from which the conclusion of guilt is to be drawn
should be fully established; (ii) the circumstances should be of
a definite tendency unerringly pointing towards the guilt of the
accused; (iii) the circumstances taken cumulatively should form a
chain so far complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused; (iv) the circumstances should be consistent only with the
hypothesis regarding the guilt of the accused; and (v) they must
exclude every possible hypothesis except the one which is sought
to be proved. [Para 19]
[2024] 11 S.C.R. 1235

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

Case Law Cited
Geejaganda Somaiah v. State of Karnataka [2007] 3 SCR 899 :
(2007) 9 SCC 315 – relied on.
Devi Lal v. State of Rajasthan [2019] 1 SCR 168 : (2019) 19 SCC
447; Sharad Birdhichand Sarda v. State of Maharashtra [1985]
1 SCR 88 : (1984) 4 SCC 116; Hanumat Govind Nargundkar v.
State of Madhya Pradesh AIR 1952 SC 343; Santosh @ Bhure
versus State (G.N.C.T) of Delhi 2023 SCC OnLine SC 538; Shivaji
Sahabrao Bobade v. State of Maharashtra [1974] 1 SCR 489 :
(1973) 2 SCC 793; Nizam v. State of Rajasthan [2015] 10 SCR
786 : (2016) 1 SCC 550; Navaneethakrishnan v. State [2018] 6
SCR 749 : (2018) 16 SCC 161; Kanhaiya Lal v. State of Rajasthan
[2014] 3 SCR 744 : (2014) 4 SCC 715; State of U.P. v. Satish
[2005] 1 SCR 1132 : (2005) 3 SCC 114; Ramreddy Rajesh Khanna
Reddy & Anr. V. State of A.P. [2006] 3 SCR 348 : (2006) 10 SCC
172; Bodhraj v. State of J & K [2002] Suppl. 2 SCR 67 : (2002)
8 SCC 45 – referred to.

List of Acts
Evidence Act, 1872; Penal Code, 1860; Code of Criminal Procedure,
1973.

List of Keywords
Murder; Acquittal; Motive; Last seen circumstance; Recovery;
Disclosure; Discovery; Definite tendency; Circumstance proved
beyond reasonable doubt; Disclosure statement; Reduction of
sentence; Chain of incriminating circumstances.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1902 of 2013
From the Judgment and Order dated 24.05.2012 of the High Court
of Uttarakhand at Nainital in CRA No. 82 of 2003

Appearances for Parties
Ms. Nidhi, Syed Saifullah, Advs. for the Appellants.
Ms. Anubha Dhulia, Ms. Suveni Bhagat, Advs. for the Respondent.
1236 [2024] 11 S.C.R.

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Judgment / Order of the Supreme Court

Judgment

Manoj Misra, J.

1. This criminal appeal impugns the judgment and order of the High
Court of Uttarakhand at Nainital1 dated 24.5.2012 passed in Criminal
Appeal No. 82 of 2003, whereby the appeal of the appellants against
the judgment and order of the Sessions Judge, Pithoragarh passed
in Session Trial No. 36 of 1997 was partly allowed and the conviction
of the appellants was altered from Section 302/34 of the Indian Penal
Code, 18602 to Section 304 Part I of IPC, and the sentence, inter
alia, was reduced from imprisonment for life to 7 years R.I.3

FACTUAL MATRIX
2. On 3.2.1997, at about 10 AM, PW-7, a cousin of the deceased,
lodged a first information report4 (Exb. Ka-2) at PS5 Lohaghat,
District Pithoragarh, inter alia, alleging that on 3.2.1997, at about
9.30 AM, he came to know that dead body of the deceased was lying
in the verandah of Mohan Singh’s shop. Pursuant to the aforesaid
report, the police proceeded to the spot, carried out inquest and
prepared an inquest report (Exb. Ka-8). It also lifted blood-stained
and plain earth/ floor from the spot and prepared a seizure memo
(Exb. Ka-4) thereof. Belongings of the deceased lying near the spot
were also seized and a seizure memo (Exb. Ka-5) was prepared.
Besides that, a black polythene bag containing goat meat was also
recovered from near the spot and another seizure memo (Exb. Ka 3)
was prepared.
3. Autopsy of the cadaver was conducted by PW-1 on 3.2.1997 at about
2.45 PM. Autopsy report (Exb. Ka-1) indicated that the deceased died
due to shock because of head injury. The estimated time of death,

1 The High Court
2 IPC
3 Rigorous Imprisonment
4 FIR
5 Police Station
[2024] 11 S.C.R. 1237

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

as per autopsy report, was about a day before autopsy. Ante-mortem
injuries noticed at the time of autopsy were:
"1. Incised wound on head on occipital region 4 x 1 cm,
margins of wound clear cut and bleeding from the
wound, direction of the wound was oblique.
2. Incised wound 2-1/2 x 1 cm x bone deep in occipital
area, 6 cm back of the right ear, direction of wound
was slanting and clear-cut margins. Bleeding from
wound.
3. Contusion on left region of the forehead, 1-1/2 cm x 1
cm, size of wound was unclear. Colour of the wound
brown and was above 1 cm from left eyelashes.
4. Contusion with abrasion, from right shoulder to elbow,
in about 15 x 3 cm area, colour of the wound was
brown.
5. Contusion on the joints of both the wrists.
6. Contusion 4 cm x 1-1/2 cm at right knee, colour of
the wound was brown.
7. Contusion 3 cm x 1 cm on the left knee, colour of
the wound was brown.
8. Contusion 2 cm x 1 cm below 10 cm from the knee
on left leg.
9. Abrasion on the right hip 3 cm x 2 cm.
10. Abrasion 4 cm x 1-1/2 cm on the left hip.
Internal examination disclosed fracture of occipital bone”
4. On 6.2.1997, the police arrested the appellants on suspicion and,
according to the police, at the pointing out of the appellants, the
place where the deceased was allegedly assaulted was discovered.
From that place, allegedly, some bloodstained stones and mud were
lifted and a seizure memo (Exb. Ka-6) was prepared.
5. During investigation, inter alia, statements of witnesses who had
seen the deceased in the company of the accused on 2.2.1997
during daytime and who had seen the two accused in the company
1238 [2024] 11 S.C.R.

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of each other, late in the night of 2.2.1997, on the pathway, near the
place from where the dead body of the deceased was recovered
were recorded. Based on that, a charge sheet was submitted against
the appellants.
6. After taking cognizance on the charge sheet, the case was committed
to the Court of Session. The Sessions Court framed charges against
the appellants for offences punishable under Sections 302 /201 read
with Section 34 IPC. The accused appellants denied the charges
and claimed for trial.

PROSECUTION EVIDENCE
7. As the prosecution case rests on circumstantial evidence, to test
the correctness of the findings, a scrutiny of the evidence would be
apposite. We would, therefore, notice the prosecution evidence in
some detail.
8. Prosecution had examined 10 witnesses:
(a) PW-1 (the autopsy surgeon) proved the autopsy report. He
accepted the possibility of: (a) head injuries being caused by a
sharp-edged stone or a sharp-edged weapon; (b) death having
occurred a day before i.e., on 2.2.1997 around 5.30 PM.
(b) PW-2 – Hayat Singh – He had his shop about 30 yards away
from Mohan Singh’s shop (i.e., from where the dead body was
recovered on 3.2.1997). According to him, on 2.2.1997, at about
7 PM, while he was sitting at his shop, next to a fire-place to
ward off cold winter night, he saw three persons coming from
near Mohan Singh’s shop. Those three were Jagdish Punetha
and the two accused. Later, that night, between 10 PM and
11 PM, while he was returning to his shop to fetch his purse,
in torch light, he saw the two accused going together on the
same path towards village Bhumlai.
During cross-examination, PW-2 stated (a) that his statement
was recorded by the investigating officer on 9.2.1997; (b) prior
to that, he made no disclosure about it to any one; (c) that
night, it was drizzling; (d) that from his shop, Mohan Singh’s
shop is 30-35 yards away and in between his shop and Mohan
Singh’s shop there are shrubs, therefore, it is difficult to notice
[2024] 11 S.C.R. 1239

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

as to who is doing what there, from his shop; (e) that in 1995
he had a fight with accused Bhuwan (appellant no.2), which
was compromised on payment of Rs.3000 by him.
(c) PW-3 – Mohan Singh (i.e., the shop-owner from whose shop’s
verandah, dead body was recovered) stated that on 2.2.1997,
at about 6 PM, the two accused had come to his shop at Tolan
and had asked for milk. After having milk, they asked each other
about the deceased. He heard them saying that the deceased
has not been seen. Shortly thereafter, they left his shop with
Jagdish Punetha, who was present at the shop from before.
Thereafter, PW-3 left his shop. Next day, at about 8.30 AM,
when PW-3 returned to his shop, he noticed the dead body of
the deceased in the verandah of his shop.
During cross-examination, PW-3 stated that on 2.2.1997 it was
very cold and there was a slight drizzle. PW-3 stated that he
left his shop at about 8 PM on 2.2.1997.
(d) PW-4 – Shankar Dutt Upreti – He stated that on 2.2.1997,
at about 4.30 PM, while he was coming to Lohaghat, he met
accused appellants near Degree College, Gadhera. Deceased
was also with them. Then he clarified that the deceased was with
Suresh Chandra Tiwari (i.e., appellant no.1) whereas Bhuwan
(appellant no.2) was 50-60 paces behind them.
During cross-examination, PW-4 admitted that after the death
of the deceased, he had observed rituals as are to be observed
when death occurs in the family. However, he denied belonging
to the family of the deceased.
(e) PW-5- Mahesh Upreti- He stated that the accused appellants are
very close friends of each other. In 1996 panchayat elections,
the deceased, who is PW-5’s cousin, supported PW- 5’s
candidature whereas accused supported a rival candidate,
who was nephew of Suresh Chandra (appellant no.1). During
elections, Suresh Chandra had extended death-threats. Later,
when PW-5 contested election for the office of Pradhan, Suresh
Chandra supported a rival candidate. In the first meeting of
Gram Panchayat, held on 19.1.1997, Suresh Chandra extended
death threat to the deceased.
1240 [2024] 11 S.C.R.

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During cross-examination, he admitted that he made no report
about extension of threats. However, he denied making false
accusations because deceased was his cousin.
(f) PW-6 – Jahangir- He stated that he is a meat vendor. On
2.2.1997, at about 3.30 PM, Suresh Chandra had purchased
a kilogram of meat from his shop.
During cross-examination, PW-6 stated that there are 2 or 3
other meat vendors at Lohaghat.
(g) PW-7 – Harish Chandra Upreti- He stated that the deceased
was his first cousin. On receipt of information about his death,
he lodged the report (Exb. Ka-2).
(h) PW-8 – Jeevan Chandra Upreti – He stated that on 3.2.1997
upon receiving information about deceased’s death, he went
to the spot. That day itself, three seizure memos (Exb. Ka-3, 4
and 5) were prepared, which bear his signature. These memos
related to: (i) seizure of a black polythene bag containing meat
from open field near the spot; (ii) lifting of blood-stained floor
and plain floor from the spot; and (iii) seizure of blood-stained
clothes and a pair of Lakhani half-shoes of the deceased from
open field near the spot. He added that on 6.2.1997, at the
pointing of the accused, in the presence of Investigating Officer,
a blood-stained stone, a blood-stained Patti and plain earth was
seized from Madhkhetla and a seizure memo (Exb. Ka-6) was
prepared, which bears his signature. He also stated that on
9.2.1997 Hayat Singh handed over his torch to the investigating
officer and a seizure memo (Exb. Ka-7) was prepared, which
bears his signature.
During cross examination, PW-8 stated that he did not
accompany the police on those three dates but was present
there. In respect of seizure made on 6.2.1997 he stated that
he did not go with the police. Rather, he was present at the
village. Police had reached between 11 and 12. Accused were
arrested in the evening of 6.2.1997. He stated that Madhkhetla
is about 2 km away from his village. He, however, denied the
suggestion that all papers were prepared at one go, while sitting
at the police station, and that nothing was recovered.
[2024] 11 S.C.R. 1241

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

(i) PW-9- Anand Lal- the first investigating officer - He stated that
on 3.2.1997 he was posted as Sub-inspector at PS Lohaghat
when the FIR was lodged. He conducted initial stages of
investigation such as making GD entry of the report, conducting
inquest, sending the dead body for autopsy and lifting of:
(i) blood-stained floor/plain floor from the spot; and (ii) clothes,
half-shoes of deceased and black polythene bag containing
meat from Madhkhetla. He also stated that the seized articles
were deposited at the Maalkhana. Thereafter, investigation
was carried out by PW-10. He had produced material exhibits
during trial.
During cross-examination, PW-9 admitted that PW-8 is relative
of the deceased. He also admitted that at the time of inquest,
Hayat Singh (PW-2) and Mohan Singh (PW-3) were present.
He then clarified that distance between Tolan and Madhketla
is about 80 yards.
(j) PW-10 – Kundan Singh - the second investigating officer
- He stated that he took over investigation of the case on
4.2.1997. On 5.2.1997 he conducted spot inspection of the
place where deceased’s belongings such as clothes etc. were
found and prepared site plan (Exb. Ka-16). On 5.2.1997 itself,
he inspected place from where dead body was recovered and
prepared site plan (Exb. Ka-17). On 6.2.1997 he arrested
the accused appellants and interrogated them at the police
station, of which GD entry no.27 (Exb. Ka-18) was prepared
at 19:20 hrs. On the same day, based on disclosure made
by the accused, blood-stained stone and plain stone as well
as earth were seized, of which seizure memo is Exb. Ka-6.
According to him, complicity of the accused in the crime
had come to light before 6.2.1997. However, on 6.2.1997,
he visited, separately, the house of the two accused and
arrested them. On interrogation they accepted their guilt and
showed him the place where the deceased was assaulted.
From there, he recovered blood-stained stone, etc. Thereafter,
the accused appellants were lodged in the lock-up where
their statements were recorded. On 9.2.1997, the statement
of Hayat Singh was recorded, and his torch was recovered.
1242 [2024] 11 S.C.R.

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Based on his statement, a site plan (Exb. Ka-20), showing the
place from where Hayat Singh saw the accused appellants
on 2.2.1997, was prepared. On 9.2.1997, site plan (Exb. Ka-
21) of the place from where stone etc. had been recovered
was prepared. He stated that seized case property was sent
for forensic examination vide letter (Exb. Ka-22), and on
completion of investigation, charge sheet (Exb. Ka-23) was
submitted against the accused on 18.3.1997. PW-10 also
produced the stones which were recovered from the place
pointed out by the accused.
During cross-examination, he admitted that in the site plan
prepared by him, he had not mentioned the distances. He also
admitted that the accused were produced before the remand
magistrate on 8.2.1997 and not on 7.2.1997. He, however,
denied the suggestion that all investigative steps were bogus
and completed while sitting at the police station.

STATEMENT UNDER SECTION 313 Cr.PC
9. In his statement under Section 313 of the Code of Criminal
Procedure, 1973,6 Suresh Chandra Tiwari (appellant no.1) either
denied, or feigned ignorance of, the incriminating circumstances
put to him. But admitted (a) that the body of the deceased was
found in front of the shop of Mohan Singh; (b) that the autopsy
report was prepared by PW-1; (c) that panchayat elections were
held in the year 1996; and (d) that he was interrogated on 6.2.1997,
though he disclosed nothing incriminating. Notably, the incriminating
circumstance qua discovery of blood-stained stone, etc. at his
instance on 6.2.1997, vide seizure memo Exb. Ka-6, was not put
to him. At last, he stated that owing to enmity he has been falsely
implicated.
10. Identical is the statement of Bhuwan Chandra Punetha (appellant
no.2). Notably, the incriminating circumstance of recovery of blood-
stained stone etc. on 6.2.1997, of which seizure memo Exb. Ka-6
was prepared, was not put to him.

6 CrPC
[2024] 11 S.C.R. 1243

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

TRIAL COURT FINDINGS
11. Trial court found the following circumstances proved: (i) the deceased
was last seen alive in the company of the accused on 2.2.1997 at
about 4.30 PM; (ii) the accused, in the night of 2.2.1997, were seen
on the pathway going towards Madhkhetla (where articles of the
deceased were found) and were also noticed coming back from the
same route on which shop of Mohan Singh falls; (iii) Suresh Chandra
Tiwari had purchased a kilogram of meat on 2.2.1997 from PW-6,
and there was recovery of a polythene bag, containing meat, from
the place where other articles of the deceased were found; (iv) the
accused were looking for Suresh Upreti (the deceased) in the evening
of 2.2.1997, as was evident from their talks, while they were present
at the shop of Mohan Singh (PW-3); (v) autopsy report and medical
evidence confirmed a homicidal death of the deceased as also the
fact that ante-mortem head injury could have been caused by a
sharp-edged stone; (vi) blood-stained stone was found at the place
pointed out by the accused appellants, and forensic report confirmed
presence of human blood on it, therefore, the chain of circumstances
stood complete, which pointed that sometime in the night of 2.2.1997
the accused appellants killed the deceased due to past enmity and
kept his body in front of Mohan Singh’s shop. Consequently, the
trial court convicted the accused-appellants for offences punishable
under Sections 302/34 and 201/34 of IPC.

HIGH COURT FINDINGS
12. Aggrieved by the judgment and order of the trial court, the appellants
filed an appeal before the High Court. The High Court affirmed the
findings of the trial court on strength of the circumstances narrated
above and held that recovery of blood-stained stone(s) at the instance
of the accused, of which seizure memo (Exb. Ka-6) was prepared,
corroborated the prosecution case to dispel any doubt about their
guilt. In addition, the High Court relied on the disclosure statement
(Exb. Ka-18) which, according to the High Court, led to discovery
of the place and consequential recovery. However, the High Court,
upon finding that the accused had no previous criminal record and
except injuries 1 and 2 none were dangerous to life and those two
could be a result of a solitary blow, thought fit to alter the conviction
from offence of murder, punishable under Section 302 of IPC, to
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offence of culpable homicide not amounting to murder, punishable
under Section 304 Part I of IPC, and thereby reduced the sentence,
accordingly.
13. Aggrieved by their conviction, the appellants are before us.
14. We have heard the learned counsel for the parties and have perused
the record.

SUBMISSIONS ON BEHALF OF THE APPELLANTS
15. On behalf of the appellants, it was submitted:
(i) The circumstances relied upon were not proved beyond
reasonable doubt.
(ii) The last seen circumstance narrated by PW-2 is not conclusive
as there is no proximity between the place where the deceased
was last seen alive in the company of the accused and the place
from where the body of the deceased was recovered. Further,
the time gap between the time when the deceased was last
seen alive with the accused and the time when dead body was
recovered is so large that intervening circumstances cannot be
ruled out. Moreover, the circumstance of walking side by side
on a pathway by itself is not an incriminating circumstance.
(iii) The incriminating circumstance of discovery /recovery at the
instance of the accused has not been put to either of the two
accused while recording their statements under Section 313 of
CrPC, therefore the same cannot be relied upon.
(iv) The disclosure statement was inadmissible as it did not lead to
discovery because, according to PW-10, recovery was made from
the place pointed out by the accused-appellants even before their
disclosure statement was recorded at the police station. Otherwise
also, it is not clear from the evidence as to which of the two
accused pointed out the place first, to effectuate the recovery.
Hence, recovery cannot be imputed to any of the two accused.
(v) Assuming that recovery of stone is imputable to the accused,
it is not proved that it carried blood of the deceased or that it
could have caused such injuries as were found on deceased’s
body. Thus, the recovered article was not connected to the crime.
[2024] 11 S.C.R. 1245

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

(vi) PW-2’s narration about seeing accused-appellants walking on
the path in front of Mohan Singh’s shop is inconsequential as
anyone could walk on a public path. Moreover, testimony of PW-2
does not inspire confidence because, despite being present at
the time of inquest on 3.2.1997, he remained silent till 9.2.1997.
(vii) The recovery of a polythene bag containing meat from the spot,
coupled with the testimony of meat vendor, is not an incriminating
circumstance because, firstly, the meat vendor admitted that
there are many other meat vendors in the area and, secondly,
there is no evidence that the bag recovered was the one which
he sold to the accused.
(viii) Neither the trial court nor the High Court tested the evidence
to ascertain (a) whether circumstances were proved beyond
reasonable doubt; and (b) whether they constituted a chain
so complete as to rule out all other hypotheses save the one
consistent with the guilt of the accused.

SUBMISSIONS ON BEHALF OF THE STATE
16. Per contra, on behalf of the State, it was submitted that each of the
incriminating circumstances were proved beyond doubt; the chain
of circumstances stood complete; and it pointed towards the guilt
of the appellants by ruling out all hypotheses consistent with their
innocence. The matter is concluded by concurrent findings of fact,
therefore, there is no merit in the appeal.

ANALYSIS
17. We have considered the rival submissions and have perused the
materials on record.
18. At the outset, we may put on record that if finding of guilt is returned
without properly evaluating and testing the evidence by applying the
requisite legal principles, it can always be corrected by this Court in
exercise of its powers under Article 136 of the Constitution of India.

LEGAL PRINCIPLES QUA CIRCUMSTANTIAL EVIDENCE
19. Before we proceed to test the correctness of the findings returned by
the trial court as well as the High Court, we must bear in mind that
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the prosecution case rests on evidence circumstantial in nature. As
to when on strength of such evidence an accused can be convicted,
the legal principles, as propounded in a series of decisions7 of this
Court, may be summarized thus:
(i) the circumstances from which the conclusion of guilt is to be
drawn should be fully established;
(ii) the circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused;
(iii) the circumstances taken cumulatively should form a chain so
far complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused;
(iv) the circumstances should be consistent only with the hypothesis
regarding the guilt of the accused; and
(v) they must exclude every possible hypothesis except the one
which is sought to be proved.
20. Adding on to the aforesaid legal principles, in Devi Lal vs. State of
Rajasthan,8 a three-judge bench of this Court held that in a case
based on circumstantial evidence where two views are possible, one
pointing to the guilt and the other to his innocence, the accused is
entitled to the benefit of one which is favorable to him.
21. Besides that, before recording conviction, the court must be satisfied
that the accused ‘must be’ and not merely ‘may be’ guilty. In Shivaji
Sahabrao Bobade vs. State of Maharashtra,9 this Court, elaborating
upon the above principle, observed that the mental distance between
‘may be’ and ‘must be’ is long and divides vague conjectures from
sure conclusions. Therefore, even if the prosecution evidence
generates strong suspicion against the accused, it cannot be a
substitute for proof.

7 See: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116; Hanumat Govind Nargundkar
v. State of Madhya Pradesh AIR 1952 SC 343; Santosh @ Bhure versus State (G.N.C.T) of Delhi, 2023
SCC OnLine SC 538
8 [2019] 1 SCR 168 : (2019) 19 SCC 447
9 [1974] 1 SCR 489 : (1973) 2 SCC 793
[2024] 11 S.C.R. 1247

Suresh Chandra Tiwari & Anr. v. State of Uttarakhand

22. Bearing in mind the aforesaid legal principles, we would examine and
consider – (a) whether the circumstances relied by the prosecution
have been proved beyond reasonable doubt; (b) whether those
circumstances are of a definite tendency unerringly pointing towards
the guilt of the accused; (c) whether those circumstances taken
cumulatively form a chain so far complete that there is no escape
from the conclusion that within all human probability the crime was
committed by the accused; (d) whether they are consistent only with
the hypothesis of the accused being guilty; and (e) whether they
exclude every possible hypothesis except the one to be proved.

CIRCUMSTANCES RELIED BY THE PROSECUTION
23. The prosecution case rests on the following circumstances:
(i) Accused-appellant no.1 and the deceased had supported
rival candidates in the last panchayat elections held in 1996,
and on 19.01.1997 accused – appellant no.1 had threatened
the deceased in a Gram Sabha meet, therefore there existed
motive for the crime.
(ii) The deceased was last seen alive on 2.2.1997, at about 4.30
PM, with the accused-appellants by PW-4.
(iii) According to PW-3, whilst accused-appellants were at his
shop on 2.2.1997, at about 6.30 PM, they were looking for the
deceased.
(iv) In the night hours of 2.2.1997, the accused-appellants were
noticed walking on the pathway in front of Mohan Singh’s
shop from where deceased’s body with multiple ante-mortem
injuries, confirming a homicidal death, was recovered next
day morning.
(v) A polythene bag containing meat was recovered from the place
where belongings of the deceased were littered. Testimony of
PW-6 proved that accused-appellant no.1 had purchased 1 kg
of meat on 2.2.1997 at about 3.30 PM.
(vi) On the disclosure made by the accused-appellants, as well as
at their pointing out, on 6.2.1997 blood-stained stone(s) were
recovered which might have been used to inflict head injury to
the deceased, resulting in his death.
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24. We shall now deal with each of the above circumstances
separately.

MOTIVE
25. Though prosecution has been successful in establishing that in
1996 panchayat elections the deceased and accused-appellant
no.1 had supported rival candidates, but it could lead no concrete
evidence as regards any untoward incident precipitating the crime
in question. No doubt, evidence about extension of death threat in
a public meet of the Gram Sabha, held in January 1997, has come,
but, admittedly, no such incident was reported to the police. Hence,
motive proved is not such as may have a material bearing on the
prosecution case. Otherwise also, motive on its own cannot make
or break the prosecution case.

LAST SEEN CIRCUMSTANCE
26. The circumstance of deceased being last seen alive in the company
of the deceased is a vital link in the chain of other circumstances
but on its own strength it is insufficient to sustain conviction unless
the time-gap between the deceased being last seen alive with the
accused and recovery of dead body of the deceased is so small
that possibility of any other person being the author of the crime
is just about impossible. Where the time-gap is large, intervening
circumstances including act by some third person cannot be ruled
out.10 In such a case, adverse inference cannot be drawn against
the accused merely because he has failed to prove as to when he
parted company of the deceased.
27. In the instant case, PW-4 allegedly saw the deceased walking on a
street with accused-appellant no.1 on 2.2.1997, at about 4.30 PM,
near Gadhera Degree College. PW-4 further stated that accused-
appellant no.2 was walking 50-55 paces behind them. No evidence
was led by the prosecution to demonstrate that the place where the
deceased was last seen alive with the accused was near the place

10 See Nizam v. State of Rajasthan (2016) 1 SCC 550; Navaneethakrishnan v. State (2018) 16 SCC
161; Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715; State of U.P. v. Satish (2005) 3 SCC 114;
Ramreddy Rajesh Khanna Reddy & Anr. V. State of A.P. (2006) 10 SCC 172; and Bodhraj v. State of J &
K (2002) 8 SCC 45
[2024] 11 S.C.R. 1249

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from where deceased’s body was recovered. Further, the time gap
between 4.30 PM of 2.2.1997 and 8.30 AM of 3.2.1997 (i.e., when
the dead body was recovered) is so large that third party hand in the
crime cannot be ruled out. Otherwise also, if two or more persons are
seen walking on a public street, either side by side, or behind one
another, it is not such a circumstance from which it may be inferred
with a degree of certainty that those were together or in company
of each other. Quite often on a public path a person may happen to
walk side by side a stranger for a considerable distance without even
talking to him. Likewise, a person may exchange pleasantries with
another person walking on the path, but that by itself is not sufficient
to infer that the two are in company of each other. Importantly, the
prosecution case is not that the deceased was picked up from his
house by the accused-appellant(s). Had it been so, in absence of
evidence as to when they parted company of each other, adverse
inference against the accused might be permissible, if the other
circumstances so warrant. But here there is no evidence of that
kind. Therefore, taking into account (a) the place where the accused
appellants and the deceased were allegedly seen together; and (b)
lack of proximity of the time and place when the three were seen
together with the time and place when, and from where, the body
of the deceased was recovered, we are of the considered view that
the last seen circumstance as canvassed by the prosecution is not
of a definite tendency unerringly pointing towards the guilt of the
accused-appellants.

APPELLANT(S) LOOKING FOR THE DECEASED
28. PW-3 speaks of accused-appellants’ presence at his shop on
2.2.1997, at about 6.30 PM, as also of they being looking for the
deceased. This circumstance has been considered incriminating by
the courts below because it throws a possibility of accused being
looking for the deceased with an intent to finish him off. In our view,
this circumstance is not of a definite tendency in unerringly pointing
towards the guilt of the accused, inasmuch as there may be multiple
reasons for a person to look for another. Importantly, there is no
evidence that the accused appellants were heard conspiring against
the deceased or expressing their animosity towards him. Rather, this
circumstance runs contrary to the last seen circumstance because if
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the accused were in the company of the deceased, why would they
be looking for the deceased.

APPELLANTS WERE NOTICED IN THE NIGHT HOURS
29. PW-2 stated that on 2.2.1997 he noticed the appellants with Jagdish
Punetha coming from the shop of Mohan Singh on 2.2.1997 between
6.30 PM and 7 PM. This circumstance is not an incriminating
circumstance because from the statement of Mohan Singh (PW3)
he was at his shop when the above three left his shop. However,
PW-2 goes on to state that in the night hours of 2.2.1997 when he
returned to his shop to fetch his purse, he noticed the accused-
appellants walking on the path in front of Mohan Singh’s shop. This
circumstance is taken as highly incriminating by the courts below
because there was no reason for the appellants to be there at that
odd hour of cold winter night. According to the courts below, this
circumstance explains the presence of deceased’s body in front of
Mohan Singh’s shop.
30. If we test the statement of PW-2 against the weight of other evidence
on record, it does not inspire confidence, firstly, because from PW-9’s
(the first investigating officer) statement it appears that PW-2 was
present at the time of inquest, which was held on 3.2.1997, yet he
chose not to disclose about what he saw till 9.2.1997. Interestingly,
statement of PW-2 was recorded by PW-10 (i.e., the second
investigating officer) on 9.2.1997 after the accused-appellants had
already been arrested and even recovery of incriminating articles
at their instance had allegedly been made. In what circumstances
PW-2 withheld his statement that long and thereafter came to
make a disclosure is not explained in the prosecution evidence.
Secondly, the site plan (Exb. Ka-20) does not disclose the distance
from where PW-2 spotted the two accused in the company of each
other. Thirdly, PW-2 admits that in between his shop and Mohan
Singh’s shop there are shrubs, and it is not possible to see from his
own shop as to what is happening at Mohan Singh’s shop. Fourthly,
PW-2’s presence is fortuitous because, admittedly, he had shut his
shop and retired to the comfort of his home. It is highly unlikely
that a person would take the pains of returning in late hours of
winter night, particularly when it is drizzling, only to fetch his purse
inadvertently left at his own shop. Fifthly, he is a witness inimical to
[2024] 11 S.C.R. 1251

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the accused because he had a fight with appellant no.2 prior to the
incident, which, however, resulted in a compromise on his shelling
out Rs.3000/-. Besides that, walking on a public pathway in front of
a shop where dead body is found lying next day morning is by itself
not an incriminating circumstance on which alone, conviction could
be sustained. More so, when there is no evidence that the accused
appellants were seen dragging or lifting the body of the deceased
to the shop of Mohan Singh. Unfortunately, neither the trial court nor
the High Court thoroughly tested the testimony of PW-2 against other
proven circumstances on record, as discussed above.

RECOVERY OF POLYTHENE BAG
31. Prosecution proved recovery of a black polythene bag containing 1
kg of meat from the place where other belongings of the deceased
were littered. This recovery was made on 3.2.1997 and is considered
incriminating by the prosecution because, according to PW-6, on
2.2.1997 at about 3.30 PM the appellant no.1 had purchased a
kilogram of meat from him. In our view, this circumstance cannot be
considered incriminating as there is no evidence that the meat bag
found was identified by PW-6 as the one sold by him to the accused.
Otherwise also, black colored polythene is quite commonly used for
carrying goods including meat products. Admittedly, there were two
or three other meat vendors in the vicinity. In such circumstances
which vendor’s meat was found can be anybody’s guess. This
was, therefore, hardly an incriminating circumstance to link the
appellant no.1 to the crime. More particularly, when fingerprints on
the polythene were neither lifted nor compared with those of any
of the accused.

DISCLOSURE/DISCOVERY
32. Exb. Ka-18 is the disclosure statement recorded vide GD Entry no.27
at 19:20 hrs. on 6.2.1997. Exb. Ka-6, which is also dated 6.2.1997,
is the memorandum of seizure of blood-stained stones, plain stones,
and plain earth from the spot where, according to the disclosure
made by the two accused, the deceased was assaulted and killed.
PW-8 is witness of that seizure, whereas PW-10 is the investigating
officer who got the disclosure statement recorded. The articles seized
vide Exb. Ka-6 were initially produced as material exhibits 1 to 5 by
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PW-9 (i.e., the first investigating officer) and were later identified by
PW-10 (i.e., the second investigating officer).
33. Exb. Ka-21 is the site plan prepared by the investigating officer
(PW-10) on 9.2.1997 showing the place from where that seizure
was made. A perusal thereof would reveal that the place from where
recovery of stone, etc. was shown was an open pathway.
34. Exb. Ka-6 reveals that after arrest while the two accused were being
brought to the police station, in the presence of Jeevan Upreti (PW-8)
and Mahesh Upreti, they pointed out the place where the deceased
was assaulted by them with the help of a stone and thereafter dragged
to a field at Madhkhetla where he was again assaulted and killed.
Exb. Ka-6, however, does not record that any of the accused had
specifically pointed out a particular stone or spot. Rather, it records
that on way to the police station the accused had showed the place
of assault, therefore the police stopped the vehicle to look for clues,
and then the stone, etc. mentioned therein were collected.
35. Importantly, PW-9 who investigated the case on 3.2.1997 (i.e., the first
investigating officer) produced these stones, etc. (i.e., one big stone,
three small stones, wooden plank, blood-stained and plain earth) as
material exhibits 1 to 5 respectively. During cross-examination, PW-9
admitted that the large stone produced as material exhibit no.1 bore
no blood stain. PW-9 also stated, during cross-examination, that in
the night of 2.2.1997 it had rained, and that rain shower converted
into a drizzle on 3.2.1997. He went on to state that the entire land
terrain from Lohaghat to Madhkhetla had turned slippery due to rain.
Notably, the seizure memorandum (Exb. Ka-6) records that blood
on the stone appeared to have been washed away due to rain. In
these circumstances there was no chance of blood being found on
the stone etc., which was lying in open, on 6.2.1997 (i.e., 4 days
after the incident). The forensic report Exb. Ka-22 seems to confirm
that there was no blood found on the stone. In fact, as per forensic
report (Exb. Ka-22), three items were received by the laboratory
for chemical examination, namely, (1) stone/ blood-stained/ plain
earth, (2) cement plaster (blood-stained) and plain earth and (3) blood-
stained earth and plain earth. However, the chemical examination
report clearly discloses that in respect of items (1) and (2) above no
blood was found. Though human blood was found on item (3), it is
[2024] 11 S.C.R. 1253

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not clear from the oral testimony of the witnesses as to from where
item (3) was lifted. However, from the seizure memorandum (Exb.
Ka-4) it appears that item (3) was lifted on 3.2.1997 from that spot
where body of the deceased was found in the morning of 3.2.1997.
In these circumstances, we are of the view that even if we accept
the recovery of stone(s) at the instance of the accused-appellants
on 6.2.1997, the same is inconsequential because it could not be
connected to the crime.
36. Besides that, two incised wounds with clear cut margins were found
on the head of the deceased. Though doctor (PW-1) said that they
could be caused by a sharp-edged stone but whether the seized
stone could have caused it is not proved. Importantly, the stone was
not shown to the doctor to have his opinion as to whether those head
injuries could be caused by use of it. For all the reasons above, we
are of the considered view that the recovery allegedly made from the
place discovered consequent to the disclosure statement/pointing
out by the accused is inconsequential as it could not be connected
to the crime. The High Court erred by placing reliance on the same.
37. Otherwise also, the disclosure statement (Exb. Ka-18) was not
admissible in evidence because the alleged discovery was not made
pursuant to that statement. Disclosure statement was recorded at the
police station whereas recovery was made from the place pointed
out by the accused enroute to the police station. It was, therefore, a
case of recovery from the place allegedly pointed out by the accused
and not based on a disclosure statement. In Geejaganda Somaiah
vs. State of Karnataka,11 this Court has cautioned the courts about
misuse of provision of Section 27 of the Evidence Act, 1872 while
observing as under:
“22. As the section is alleged to be frequently misused by
the police, the courts are required to be vigilant about its
application. The court must ensure the credibility of evidence
by police because this provision is vulnerable to abuse. It
does not, however, mean that any statement made in terms
of the aforesaid section should be seen with suspicion and

11 [2007] 3 SCR 899 : (2007) 9 SCC 315
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it cannot be discarded only on the ground that it was made
to a police officer during investigation. The court has to
be cautious that no effort is made by the prosecution to
make out a statement of the accused with a simple case
of recovery as a case of discovery of fact in order to attract
the provisions of section 27 of the Evidence Act.”
(Emphasis supplied)

38. Above apart, there is another reason to doubt the alleged discovery
(i.e., based on disclosure made by the accused-appellants) or
recovery (i.e., at their pointing out), as the case may be. This we
say so, because in all seizure memorandums including that of torch,
prepared on three dates i.e., 3.2.1997, 6.2.1997 and 9.2.1997, there is
one common witness, namely, PW-8. Recovery made on 6.2.1997 is a
chance recovery because by then there was no disclosure statement
on record. Notably, as per evidence on record, accused appellants
were on their way to the police station when they allegedly pointed
out the place where they had assaulted the deceased before dragging
him to the field. In such circumstances, it is quite unlikely that PW-8
would be present at the spot to be available as a witness of the
recovery. For this very reason, during cross-examination, suggestion
was given to the investigating officer (PW-10) that recoveries were
bogus, and documents were prepared at one go while sitting at
the police station. Similarly, PW-8 was cross-examined about his
presence at the time of recovery. PW-8, initially, responded by stating
that he had not accompanied the police, though he happened to be
present at that time. On further query, PW-8 stated that the police
must have arrived between 11 and 12. Later, PW-8 stated that the
accused were arrested in the evening of 6.2.1997. This indicates that
he is not sure as to when the recovery took place. Further, distance
of PW-8’s village from Madhkhetla is 2 km. All these circumstances
create a serious doubt about the presence of the witness at the
time and place of the alleged recovery. Besides that, the site plan
of the place from where recovery was made on 6.2.1997 was not
prepared until 9.2.1997. This makes us wonder whether papers in
connection therewith were prepared at one go as suggested by the
defense. Unfortunately, the High Court did not at all advert to these
circumstances and relied on the disclosure statement/discovery/
recovery without carefully weighing the evidence on record.
[2024] 11 S.C.R. 1255

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CONCLUSION
39. In view of the discussion above, we conclude as under:
(a) The trial court and the High Court failed to test the evidence
on record to find out whether the incriminating circumstances
were proved beyond reasonable doubt and whether they were
of definite tendency unerringly pointing towards the guilt of the
accused-appellants.
(b) The circumstance of (i) last seen; (ii) recovery of a meat bag
from near the spot; (iii) accused-appellants walking on the
pathway near Mohan Singh’s shop in the night; and (iv) accused-
appellants inquiring about the deceased in the evening of
2.2.1997 are not of a definite tendency unerringly pointing
towards the guilt of the accused-appellants. Circumstance
(iii) above, was not even proved beyond reasonable doubt.
(c) The disclosure statement was not admissible as it did not lead
to discovery. The stone, etc. were allegedly recovered even
before the disclosure statement was recorded. That apart,
neither Doctor’s (PW-1’s) statement nor forensic report could
connect them with the crime.
(d) In consequence, no case was made out to hold the appellants
guilty. Hence, the appeal deserves to be allowed.
40. Before parting, we would like to put on record that the High Court
also erred in converting the conviction from one punishable under
Section 302 to Section 304 Part I of IPC only because, according
to it, the fatal injury could be a result of a solitary blow. What it
overlooked was that there were multiple injuries on the body of the
deceased apart from two incised wounds on the head with underlying
fracture of occipital bone of the skull. In such a scenario, whosoever
committed the crime had clear intention to kill the deceased. Once
that is the position, in a case based on circumstantial evidence,
when no effort is made on the part of the accused either to take a
plea, or lead evidence to show, that their act would fall in any of
the exceptions to Section 300 IPC, there was no justification at all
to alter the conviction.
41. However, since we have held that the prosecution had failed to
establish the chain of incriminating circumstances, the accused
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appellants are entitled to be acquitted of the charges for which they
have been tried and convicted. The appeal is, therefore, allowed.
The impugned order is set aside. The appellants are acquitted of the
charges for which they have been tried and convicted. They are on
bail. They need not surrender. Their bail bonds stand discharged.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan