# Acquittal: The role of the investigating officer is to collect evidence and not to create one further blood stains of the accused need not be the ones spilt on that fateful day may be from before

- Link: https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/
- Published: 2026-10-31T11:33:25+00:00
- Author: Ramprakash Rajagopal

Contents

 * [Appellant and impugned order challenged](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#appellant-and-impugned-order-challenged)
 * [Factual matrix](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#factual-matrix)
 * [Other courts verdicts](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#other-courts-verdicts)
 * [Core legal arguments of appellant vs respondent](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#core-legal-arguments-of-appellant-vs-respondent)
 * [Ratio Decidendi](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#ratio-decidendi)
 * [Directions issued](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#directions-issued)
 * [Important paragraph](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#important-paragraph)
 * [Scope of an appeal against acquittal](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#scope-of-an-appeal-against-acquittal)
 * [Difference between appeal against acquittal and conviction is explained](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#difference-between-appeal-against-acquittal-and-conviction-is-explained)
 * [Appreciation of appeal against an order of acquittal is if there are two views are possible on which favours the accused should be adopted](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#appreciation-of-appeal-against-an-order-of-acquittal-is-if-there-are-two-views-are-possible-on-which-favours-the-accused-should-be-adopted)
 * [Scope of an appeal against acquittal](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#scope-of-an-appeal-against-acquittal)
 * [Judgment reference on appreciation of appeal from an order of acquittal](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#judgment-reference-on-appreciation-of-appeal-from-an-order-of-acquittal)
 * [Circumstantial evidence and its appreciation](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#circumstantial-evidence-and-its-appreciation)
 * [Appreciation of Witness](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#appreciation-of-witness)
 * [Appreciation of Circumstantial evidence](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#appreciation-of-circumstantial-evidence)
 * [Conclusion](https://section1.in/acquittal-the-role-of-the-investigating-officer-is-to-collect-evidence-and-not-to-create-one-further-blood-stains-of-the-accused-need-not-be-the-ones-spilt-on-that-fateful-day-may-be-from-before/#conclusion)

**THE STATE OF HIMACHAL PRADESH VERSUS ANCHLA @ CHANCHLA – CRIMINAL APPEAL No. 166
of 2019 – 2026 INSC 1074 – October 01, 2026 – MANOJ MISRA, VIJAY BISHNOI**

[https://api.sci.gov.in/supremecourt/2015/4240/4240_2015_9_1501_74862_Judgement_01-Oct-2026.pdf](https://api.sci.gov.in/supremecourt/2015/4240/4240_2015_9_1501_74862_Judgement_01-Oct-2026.pdf)

##### **Appellant and impugned order challenged**

The appellant is the State of Himachal Pradesh challenging the High Court judgment
dated July 28, 2014, which allowed the appeal of the respondent-accused and set 
aside the trial court’s order dated November 7, 2012, that had convicted and sentenced
the respondent under Section 302 of the Indian Penal Code. [para 1]

##### **Factual matrix**

The bodies of a woman and her minor son were discovered in their locked house, approximately
a week after they were allegedly murdered by strangulation. The stepdaughter of 
the deceased woman became the prime suspect based on the [theory that she was last seen](https://section1.in/murder-acquittal-deceased-informing-the-witness-that-he-is-going-to-meet-the-accused-in-the-evening-is-not-proof-of-last-seen-theory/)
with them, had hired a taxi to the location, possessed a bleeding thumb injury matching
blood at the scene, and allegedly held keys to the locked house. The prosecution’s
[case rested entirely on compiling these circumstantial pieces of evidence](https://section1.in/rape-case-santosh-gurung-vs-state-of-sikkim-s-c-quashes-life-sentence-based-on-broken-circumstantial-evidence/)
to prove she committed the murders for property gains. [paras 2, 3, 4, 5, 8]

##### **Other courts verdicts**

The [Trial Court](https://section1.in/22786-2/) convicted the accused based on circumstantial
evidence, concluding that the chain of events unerringly pointed towards her guilt
and ruled out all other hypotheses. The High Court reversed this conviction and 
[acquitted the accused](https://section1.in/juvenile-justice-act-2015-though-offences-pocso-and-murder-have-been-proved-accused-acquitted-based-on-procedural-illegalities/),
finding the motive unproved, the last seen evidence unconvincing, witness testimonies
doubtful, and the DNA evidence inconclusive due to potential evidence planting. [
paras 11, 12, 17]

##### **Core legal arguments of appellant vs respondent**

The appellant argued that the High Court unlawfully discarded critical evidence 
on conjectures, contending that the matched DNA profile and the accused’s bleeding
injury, alongside [witness testimonies of taxi travel and last seen](https://section1.in/witness-did-not-name-any-person-from-the-locality-who-had-seen-the-incident-and-not-a-single-witness-from-the-locality-was-examined-who-had-seen-the-incident/)
circumstances, formed an unbroken chain of guilt. Conversely, the respondent contended
that the last seen evidence was inherently weak due to the long time gap before 
the body’s discovery, that key witness testimonies were artificially created, and
the recovery of keys and mobile was unnatural and uncorroborated, thereby failing
to elevate the case from mere suspicion to proof beyond reasonable doubt. [paras
19, 20]

##### **Ratio Decidendi**

The [Supreme Court](https://section1.in/burden-of-proof-public-prosecutor-while-explaining-the-principles-of-106-iea-in-criminal-cases-honble-supreme-court-has-addressed-the-government-to-appoint-skilled-lawyers-as-public-prosec/)
held that in an appeal against acquittal based on circumstantial evidence, the appellate
court should only interfere if the lower court’s view is perverse or ignores incontrovertible
evidence. The Court found the prosecution failed to [prove the last seen circumstance](https://section1.in/acquittal-no-last-seen-alive-accused-and-deceased-together-before-the-commission-of-offence-hence-circumstance-not-proved/)
beyond reasonable doubt, discredited the taxi driver and hotel worker’s testimonies
as untrustworthy, highlighted severe investigational lapses in securing mobile Call
Detail Records with tower locations, and concluded the DNA evidence was not absolute
proof of guilt for the specific date of the crime, thus failing to establish a complete
chain of circumstances. [paras 25, 27, 50, 54, 83]

##### **Directions issued**

None.

##### **Important paragraph**

##### **Scope of an appeal against acquittal**

##### **Difference between appeal against acquittal and conviction is explained**

**22.** A judgement of acquittal has the obvious consequence of [granting](https://section1.in/in-exceptional-circumstances-the-court-may-grant-anticipatory-bail-to-an-absconder-but-a-co-accuseds-acquittal-does-not-ipso-facto-entitle-him-to-a-b-relief/)
freedom to the accused. This Court has taken a consistent view that unless the judgment
under appeal is contrary to the evidence or palpably erroneous or takes a view which
could not have been taken by the court of competent jurisdiction, keeping in view
the settled canons of [criminal jurisprudence](https://section1.in/basics-of-criminal-law-part-3-criminal-jurisprudence/),
this Court is reluctant to interfere with such judgment of acquittal. Normally, 
an appeal against acquittal has always been differentiated from an appeal against
conviction. Whenever there is perversity of facts and/or law appearing in the judgment,
the appellate court would be within its jurisdiction to interfere with the judgment
of acquittal, otherwise such interference is not called for. Therefore, if the view
taken by the High Court is one of the views possible, or there appears no perversity
in its reasoning and evaluation of evidence, merely because another view is possible,
the order of acquittal does not call for interference.

##### **Appreciation of appeal against an order of acquittal is if there are two views are possible on which favours the accused should be adopted**

**23.** However, there is no embargo on the appellate court reviewing the [evidence upon which an order of acquittal](https://section1.in/dowry-death-acquittal-evidence-on-record-is-full-of-omissions-amount-to-material-contradiction-to-peril-the-prosecution-story-of-demand-of-dowry/)
is based. Generally, the order of acquittal is not to be interfered with because
the presumption of innocence of the accused is strengthened by acquittal. The general
principle is that if two views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to his innocence, the view
which is favorable to the accused should be adopted. The paramount consideration
of the court is to ensure that miscarriage of justice is prevented. A miscarriage
of justice which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible evidence is ignored, a [duty is cast upon the appellate court](https://section1.in/understanding-the-police-report-investigation-and-magistrates-duties-in-criminal-cases/)
to reappreciate the evidence where the accused has been acquitted, for the purpose
of ascertaining as to whether any of the accused really committed any offense or
not. The principle to be followed by the appellate court considering the appeal 
against the judgment of [acquittal](https://section1.in/acquittal-gunshot-witnesses-might-have-already-planned-to-frame-the-accused-since-they-know-the-accused-owned-licensed-weapon/)
is to interfere only where there are compelling and substantial reasons for doing
so. If the impugned judgment is unreasonable, particularly where relevant and convincing
evidence(s) have been unjustifiably discarded, it becomes a compelling reason for
interference.

##### **Scope of an appeal against acquittal**

**22.** A judgement of acquittal has the obvious consequence of granting freedom
to the accused. This Court has taken a consistent view that unless the judgment 
under appeal is contrary to the evidence or palpably erroneous or takes a view which
could not have been taken by the court of competent jurisdiction, keeping in view
the settled canons of criminal jurisprudence, this Court is reluctant to interfere
with such judgment of acquittal. Normally, an appeal against acquittal has always
been differentiated from an appeal against conviction. Whenever there is perversity
of facts and/or law appearing in the judgment, the appellate court would be within
its jurisdiction to interfere with the judgment of acquittal, otherwise such interference
is not called for. Therefore, if the view taken by the High Court is one of the 
views possible, or there appears no perversity in its reasoning and evaluation of
evidence, merely because another view is possible, the order of acquittal does not
call for interference.

23. However, there is no embargo on the appellate court reviewing the evidence upon
which an order of acquittal is based. Generally, the order of acquittal is not to
be interfered with because the presumption of innocence of the accused is strengthened
by acquittal. The general principle is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to his
innocence, the view which is favorable to the accused should be adopted. The paramount
consideration of the court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from acquittal of the guilty is no less
than from the conviction of an innocent. In a case where admissible evidence is 
ignored, a duty is cast upon the appellate court to reappreciate the evidence where
the accused has been acquitted, for the purpose of ascertaining as to whether any
of the accused really committed any offense or not. The principle to be followed
by the appellate court considering the appeal against the judgment of acquittal 
is to interfere only where there are compelling and substantial reasons for doing
so. If the impugned judgment is unreasonable, particularly where relevant and convincing
evidence(s) have been unjustifiably discarded, it becomes a compelling reason for
interference.

##### **Judgment reference on appreciation of appeal from an order of acquittal**

**24.** In Rajesh Prasad v. State of Bihar and another, a three-Judge Bench of this
Court after considering a number of decisions summarised the circumstances under
which this court may entertain an appeal from an order of acquittal, and also when
it may interfere with an order of acquittal. The relevant paragraphs are reproduced
below:

“31.1. Ordinarily, this court is cautious in interfering with an order of acquittal,
especially when the order of acquittal has been confirmed up to the High Court. 
It is only in [rarest of rare cases](https://section1.in/rarest-of-rare-case-it-is-not-necessary-only-death-sentence-to-be-awarded-in-rarest-of-rare-cases/),
where the High Court, on an absolutely wrong process of reasoning and a legally 
erroneous and perverse approach to the facts of the case, ignoring some of the most
vital facts, has acquitted the accused, that the same may be reversed by this Court,
exercising jurisdiction under Article 136 of the Constitution. Such fetters on the
right to entertain an appeal are prompted by the reluctance to expose a person, 
who has been acquitted by a competent [court of a criminal](https://section1.in/court-cannot-return-final-report/)
charge, to the anxiety and tension of a further examination of the case, even though
it is held by a superior court. An appeal cannot be entertained against an order
of equity which has, after [recording valid and weighty reasons](https://section1.in/reason-is-necessary-while-recording-direction-to-pay-the-interim-compensation-u-s143a1-n-i-act/),
has arrived at an unassailable, logical conclusion which justifies acquittal.

31.2. However, this court has on certain occasions, [set aside the order](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/)
of acquittal passed by a High Court. The circumstances under which this Court may
entertain an appeal against an order of acquittal and pass an order of conviction,
may be summarized as follows:

31.2.1. Where the approach or reasoning of the High Court is perverse:

(a) Where incontrovertible evidence has been rejected by the High Court based on
suspicion and surmises, which are rather unrealistic. For example, where direct,
unanimous accounts of the eyewitnesses, were discounted without cogent reasoning.

(b) Where the intrinsic merits of the testimony of relatives, living in the same
house as the victim, were discounted on the ground that they were [“interested” witnesses](https://section1.in/disbelieving-dying-declaration-both-dying-declarations-were-said-to-have-given-to-the-interested-witnesses-and-not-properly-proved/).

(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic
conjecture of personal motive on the part of witnesses to implicate the accused,
when in fact, the witnesses had no axe to grind in the said matter.

(d) Where [dying declaration of the deceased victim](https://section1.in/statement-of-the-victim-deceased-to-her-mother-and-the-mother-repeats-the-same-in-her-testimony-deposition-is-admissible-in-evidence-as-dying-declaration/)
was rejected by the High Court on an irrelevant ground that they did not explain
the injury found on one of the persons present at the site of occurrence of the 
crime.

(e) Where the High Court applied an unrealistic standard of “implicit proof” rather
than that of “proof beyond reasonable doubt” and therefore evaluated the evidence
in a flawed manner.

(f) Where the High [Court rejected](https://section1.in/abu-salem-case-supreme-court-rejects-premature-release-plea-2026-insc-982/)
circumstantial evidence, based on an exaggerated and capricious theory, which were
beyond the plea of the accused; or where acquittal rests merely in exaggerated devotion
to the rule of benefit of doubt in favor of the accused.

(g) Where the High Court acquitted the accused on the ground that he had no adequate
motive to commit the offence, although, in the said case, there was strong direct
evidence establishing the guilt of the accused, thereby making it unnecessary on
the part of the prosecution to establish “motive”.

31.2.2. Where acquittal would result in gross miscarriage of justice:

(a) where the findings of the High Court, disconnecting the [accused persons](https://section1.in/custody-death-or-station-death-if-the-death-takes-place-inside-the-police-station-the-accused-persons-should-be-punished-for-the-offence-under-section-302-ipc/)
with the crime, were based on a perfunctory consideration of evidence, or based 
on extenuating circumstances which were purely based in imagination and fantasy.

(b) Where the accused had been acquitted on ground of delay in [conducting trial](https://section1.in/section-1753-bnss-magistrate-may-direct-investigation-only-when-the-assistance-of-investigation-agency-is-necessary-if-the-allegations-are-simple-magistrate-can-straightaway-proceed-to-conduct-tri/),
which delay was attributable not to the tardiness or indifference of the prosecuting
agencies, but to the conduct of the accused himself; or where accused had been acquitted
on ground of delay in conducting trial relating to an offence which is not of a 
trivial nature.

##### **Circumstantial evidence and its appreciation**

**27.** Before we proceed to closely scrutinize the evidence we must remind ourselves
that the prosecution case rests on circumstantial evidence. It is well settled that
where the evidence is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully established,
and all the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Besides, the circumstances should be of a conclusive nature
and tendency, and they should be such as to exclude [every hypothesis but the one proposed to be proved](https://section1.in/section-149-ipc-it-is-not-necessary-that-each-member-of-an-unlawful-assembly-to-commit-overt-act-but-once-participation-and-sharing-of-a-common-object-is-proved-every-member-is-liable-for-the-offence/).
In other words, there must be a chain of circumstances so far complete as not to
leave any reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the act
must have been committed by the accused.

**29.** We [shall now consider](https://section1.in/magistrate-shall-consider-both-the-final-reports-and-proceed-further-if-further-investigation-u-s-1738-cr-p-c-shows-the-accused-is-innocent/)
whether the above circumstances were proved beyond reasonable doubt? If so, whether
they were of conclusive nature and tendency? And whether they constituted a chain
so far complete as to exclude all hypothesis save and except the one pointing towards
the guilt of the accused?

**[Homicidal death](https://section1.in/murder-case-acquittal-though-homicidal-death-is-not-disputed-accused-has-successfully-disproved-the-extra-judicial-confession-through-defence-witness/)
confirmed: 30.** To prove the charge of murder, first it has to be proved that the
deceased died a homicidal death. Here, PW-7, i.e., the doctor, who conducted the
autopsy of the bodies of D-1 and D-2 not only proved the autopsy reports but also
substantiated that death of the two deceased was a consequence of asphyxia due to
antemortem strangulation. There appears no reason to doubt the doctor’s statement
that the two deceased died a homicidal death.

**31.** However, what is important is that autopsy was conducted on 08.09.2011 and
in the [opinion of the doctor](https://section1.in/section-307-ipc-attempt-to-commit-murder-intention-may-be-inferred-from-the-facts-and-circumstances-of-the-case-and-in-this-case-doctors-opinion-is-enough/),
the death had occurred any time between 5-7 days before. In such circumstances, 
the possibility of death occurring even after 01.09.2011 is not ruled out.

##### **Appreciation of Witness**

**PW.1 omitted important facts in his [previous statement](https://section1.in/contradictions-omissions-what-are-contradictions-and-omissions-and-how-to-cross-contradict-with-the-witness-has-been-explained/)
and improvised in his testimony: 35.** What is clear from PW-1’s deposition is that
on 31.08.2011 he had not interacted with the accused. Besides, his statement that
he saw the accused talking to D-2 at D-1’s house is an improvement on his previous
statement where he had omitted to make any such disclosure. What is also important
is that in his previous statement he had disclosed that from outside of D-1’s house
he had enquired from D-1 as to who would be staying with her that night and that
D-1 had responded from inside the house about the accused staying with her that 
night. The discrepancy between his [previous statement and deposition in Court](https://section1.in/no-court-should-allow-a-witness-to-be-contradicted-by-reference-to-the-previous-statement-in-writing-or-reduced-to-writing-unless-the-procedure-set-out-in-section-145-of-the-evidence-act-has-been-foll/)
indicates that PW-1 has improved upon his earlier statement. In our view, therefore,
on the sole basis of PW-1’s testimony it would be unsafe to hold that the accused
was with the deceased in the evening of 31.08.2011. In such circumstances, we would
have to look at other evidences for corroboration. The other evidence which the 
[prosecution has produced to show the presence of the accused](https://section1.in/when-chief-examination-of-prosecution-witness-is-being-recorded-presence-of-accused-advocate-is-required-to-object-to-a-leading-or-irrelevant-question-being-asked-to-the-witness/)
at Diur in the evening of 31.08.2011 comes from PW-4, a taxi driver. PW-18, a worker
at a Hotel in Chamba, has been produced to corroborate PW-4. We shall now consider
their testimonies.

**40.** Whether the testimonies of PW-4 and PW-8 are to be accepted depends on their
credibility/ trustworthiness. In our view, there are certain circumstances which
dent their credibility. First, there is no indication in the testimony of the [investigating officer](https://section1.in/in-cross-case-or-case-in-counter-the-i-o-has-to-file-both-the-final-reports-before-the-jurisdictional-magistrate/)(
PW-20) as to what prompted him to record statement of PW-4 and PW-18. Second, PW-
20 despite repeated questions did not tell the date when statements of PW-4 and 
PW-18 were recorded. How those two circumstances are relevant to doubt the credibility
of PW-4 and PW-18 is discussed below.

**[Supreme Court explained](https://section1.in/30-landmark-supreme-court-of-india-criminal-law-judgments-explained/)
the thinking of trained judicial mind in identifying natural witness: 41.** To a
lay man, the above circumstances may appear irrelevant in assessing credibility/
trustworthiness of a witness. But to a trained judicial mind it is an important 
circumstance in assessing whether a person is a natural witness, who is aware of
[relevant facts](https://section1.in/section-311-cr-p-c-recall-may-be-allowed-if-no-occasion-to-bring-relevant-facts-at-initial-deposition/),
or is the one who has been set up to create evidence. Normally, when a person is
aware about a crime and has knowledge of any circumstance which, to his understanding,
is incriminating in nature and may be of help to the police, he may, as a responsible
person of the society, [provide information](https://section1.in/ratio-decidendi-failing-to-inform-the-accused-of-the-grounds-of-arrest-denying-the-opportunity-to-defend-through-counsel-and-failing-to-provide-information-about-the-proposed-remand-is-unconstituti/)
to the police. But where the circumstance, of which one has knowledge or awareness,
in itself is not one which could be considered incriminating or relevant for [investigation of a crime](https://section1.in/a-forensic-guide-for-crime-investigators-standard-operating-procedures/),
there is no likelihood of that person reporting it to the police. Therefore, the
answer to the question as to why, when and in what circumstances the witness statement
was recorded during investigation becomes an important tool in assessing the credibility
of that witness. The reason is simple. Because the answer would help in determining
whether the witness is a natural one or has been set up to create evidence.

**Creating the evidence: 42.** It is well settled that the role of the [investigating officer](https://section1.in/officers-investigating-the-offence-are-duty-bound-to-be-vigilant-before-invoking-any-provision-of-a-very-stringent-statute-like-the-sc-st-act/)
is to collect evidence and not to create one. Where there is no occasion for the
[investigating officer](https://section1.in/officers-investigating-the-offence-are-duty-bound-to-be-vigilant-before-invoking-any-provision-of-a-very-stringent-statute-like-the-sc-st-act/)
to record statement of a person, or for that person to impart information to the
police, yet, the police proceeds to record his statement without narrating the circumstance
in which it was considered necessary to record his statement, a serious doubt arises
as to whether that witness has been set up to create evidence.

**Recording of corroborative witness (how to prove res gestae) example given: 43.**
We have no doubt in our mind that an [investigating officer](https://section1.in/officers-investigating-the-offence-are-duty-bound-to-be-vigilant-before-invoking-any-provision-of-a-very-stringent-statute-like-the-sc-st-act/)
may pick up clues from any statement recorded during investigation to record statement
of another. Such an exercise is completely bona fide. For example, if after [recording statement](https://section1.in/pocso-case-acquitted-based-on-victims-s-164-cr-p-c-statement/)
of A, the investigating officer comes to know that B may have knowledge of something
relevant, he would be justified in recording statement of B. But if the [investigating officer](https://section1.in/officers-investigating-the-offence-are-duty-bound-to-be-vigilant-before-invoking-any-provision-of-a-very-stringent-statute-like-the-sc-st-act/)
straightway records statement of B, and there is no palpable reason for him to believe
that B is possessed of relevant information, and B has no reason to impart information
on his own to the investigating officer, a suspicion would arise whether the exercise
of recording statement of B is undertaken just to create evidence. Lack of explanation
in that regard may dent the credibility of B.

**What witnesses the I.O to collect explained: 44.** Ordinarily an investigating
officer collects evidence from witnesses who are either present at the scene of 
crime or are likely to be aware of the crime and have information about it. Evidence
may also be collected from persons who, by virtue of their relationship with the
victim or the named accused, are likely to have relevant information. [Investigation may also](https://section1.in/magistrate-can-issue-warrant-during-investigaiton/)
reach out to those who may be in contact with the victim, or the known accused, 
based on Call Detail Record (CDR) of the mobile of the victim or the suspects. Likewise,
information may be collected on the basis of information received through [disclosure statement suffered by the accused](https://section1.in/section-27-iea-i-o-did-not-narrate-the-exact-words-spoken-by-the-accused-while-making-a-disclosure-statement/).
However, where a person is not even aware that the information which he is possessed
of is incriminating against some person, there is no likelihood of that person [reporting that information to the police](https://section1.in/understanding-the-police-report-investigation-and-magistrates-duties-in-criminal-cases/).
In such circumstances, what propels the investigating officer to record his statement
becomes important, and failure to disclose the reason may dent the credibility of
that witness as it may reasonably be inferred that the said witness is one who has
been set up.

**45.** In the [present case](https://section1.in/how-sanctioning-authority-shall-examine-the-case-presented/),
PW-20 i.e., the investigating officer ducks the question and feigns ignorance as
to when he recorded the statement of PW-4 and PW-18 during investigation. Further,
there is no explanation as to what prompted him to record statements of PW-4 and
PW-18 during investigation. Importantly, PW-20 does not state that in her disclosure
statement the accused had disclosed about travelling by Taxi from Chamba to Diur
and back or about her stay at the hotel. PW-20 only states that the accused in her
disclosure had stated that she could get the keys and mobile recovered. Thus, statements
of PW-4 and PW-18 appear to have been recorded only to create evidence.

**46.** Importantly, PW-1 does not state that he saw the accused coming to the house
of the deceased in a taxi. Therefore, what prompted the investigating officer to
record the statement of PW-4 is a mystery. Possibility of PW-4 on his own going 
to the police and getting his statement recorded is remote because travelling in
a taxi, or staying in a hotel, by itself is not an incriminating circumstance as
to disturb a person and prompt him to report it to the police. Therefore, what prompted
the investigating officer to record statements of PW-4 and PW-8 assumes importance,
and lack of disclosure/ explanation in that regard, in our view, is sufficient to
consider them as witnesses set up to create evidence for constituting a chain of
circumstances.

**Record of stay of accused in hotel not proved: 49.** Insofar as PW-18 is concerned,
he candidly admitted that record of accused’s stay at that hotel was not handed 
over to the police. Lack of record of her stay seriously dents the credibility of
his statement because it is a matter of common knowledge that all hotels / Sarai,
in ordinary course of business, are required to maintain guest record/register. 
Absence of such corroborative evidence of stay, seriously impairs the credibility
of PW-18.

**50.** For all the reasons above, we are of the view that statements of PW-4 and
PW-18 are not trustworthy and unworthy to serve as corroborative piece of evidence
of the last seen circumstance narrated by PW-1.

##### **Appreciation of Circumstantial evidence**

**Keys and lock should be matched: 58.** The circumstance of recovery of key(s) 
at the instance of the accused would be relevant only if it is established beyond
reasonable doubt that the lock which had to be broken to gain access to the room
where the bodies were lying was the one which was seized and sent to the laboratory
to [ascertain whether](https://section1.in/aadhaar-act-furnishing-of-details-to-ascertain-whether-aadhaar-is-genuine-or-not-does-in-the-interest-of-national-security-is-permitted/)
those keys operated on that lock.

**59.** Thus, the prosecution had to prove (a) that the door of D-1’s house was 
locked, and (b) it was locked by the same lock of which keys were discovered at 
the instance of the accused.

**60.** In this regard, PW-1, who has been examined apart from others, though states
that the door of D-1’s house was locked, is neither a witness to the seizure memorandum
of the lock nor he describes the lock with which the door was locked.

**64.** Interestingly, PW-20, the investigating officer is not even a witness of
breaking of the lock. PW-20 states as under:

> “By the time, I had reached the spot, the lock on the main door had already been
> broken open by the police team present at the spot.”

**65.** Having regard to the above evidence, we are of the view that it was not 
established beyond reasonable doubt that the lock which was broken to gain entry
to D-1’s house and the lock which was sent for forensic examination and produced
in Court, was one and the same. We say so because PW-3 who identified the lock in
court did not say that it locked the latch that shut the door of D-1’s house, and
PW-15, who is witness to the lock breaking process, does not identify the lock produced
in Court as the one which locked the door. Once that is the position, the recovery
of keys at the instance of the accused-respondent is rendered inconsequential. More
so, when the recovery has been denied by the [accused in her statement under Section 313 CrPC](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/).
The High Court was therefore justified in concluding that in the absence of clear
and cogent evidence, that it was this very lock that had locked the latch which 
shut the door, and had to be broken to gain access to D-1’s house, the discovery
of keys is inconsequential.

**Recovery of keys is artificial: 66.** Besides above, it does not appeal to reason
as to why the accused would take away the keys of the lock with her, or for that
matter why would she even lock the door, when she resided at another place. This
recovery, therefore, appears artificial and does not inspire confidence.

**Recovery of the mobile from the accused’s house is rejected since IO did not collect
CDR:** **67.** The other incriminating circumstance is regarding the recovery of
mobile of the deceased from the house of the accused. This circumstance is denied
by the accused. In our view, it has been rendered doubtful for multiple reasons.
Firstly, the investigating officer has not got CDR of the said mobile exhibited 
in evidence. Further, the investigating officer (PW-20) is silent on as to whether(
a) mobile was switched off or not on 01.09.2011; if not, whether it received any
call on 01.09.2011, or later; and (b) if it had received a call, where it was located.
Secondly, a mobile can always be planted by picking it from the scene of crime and
putting it at the place from where recovery is to be shown. Therefore, to remove
all doubts, the [investigating officer ought to have placed the complete](https://section1.in/prosecution-cannot-file-final-report-without-complete-investigation-to-deprive-arrest-of-accused-and-default-bail-u-s-1672-cr-p-c/)
CDR of the mobile along with its tower location. Thirdly, why would the accused 
carry the mobile from the house of the deceased to her own house when she has her
own mobile. Rather, she would carry other valuables from the deceased’s house. At
this stage, we may observe that there is no evidence that she carried any valuables
from the house of the deceased to her own house.

**68.** In such circumstances, firstly, recovery of mobile from the accused’s house
is doubtful and, secondly, in absence of the complete CDR of that mobile along with
its tower location, its incriminatory value, if any, is seriously dented.

**73.** Admittedly, the scene of crime was first discovered on 07.09.2011. The testimony
of the investigating officer (PW-20) discloses that he was a part of the FSL team
which had lifted samples of blood from different points in the room where the deceased
had been murdered. He states that the FSL team had visited on 10.09.2011 and had
taken parts of mattresses, pillow cover, drugget and bedsheet into possession. A
single bedsheet was also taken into possession. A cloth cover lying over a trunk
was also taken into possession by the team. He stated that all the aforesaid articles
were sealed in a cloth parcel. PW-20 also states that the FSL team had taken photographs
of palm prints of the accused and had also sent them to fingerprint bureau Shimla
for comparison. However, there appears no record of palm prints report. There is
also no explanation as to why it was not produced. Interestingly, none of the members
of the forensic team which collected the articles was examined. However, we do not
propose to draw adverse inference on that count as there is not much [cross-examination regarding](https://section1.in/murder-case-conviction-nothing-elicited-in-cross-examination-regarding-the-presence-of-the-eye-witnesses/)
it.

**Scientific expert not called for cross-examination: 78.** What is surprising is
that all samples were found to have disintegrated save and except the scrape from
the cabinet and the one lifted from the cabinet by cotton thread. Interestingly 
the control sample from the cabinet was not sent for forensic examination. Besides,
if blood stains on all articles were collected on or about the same time, disintegration
of other blood stains and non-disintegration of blood stain found at one spot is
something which puzzles us. Unfortunately, the author of the report i.e., the scientific
expert was not called for cross-examination, and there is not much effort from the
defence to demonstrate that the seal of the articles dispatched was tampered with.
In such view of the matter, though we have questions in our mind, we have no option
but to accept the report as it stands. However, whether this circumstance clinches
the case for the prosecution is what we shall now discuss.

**Blood stains of the [accused need](https://section1.in/burden-of-proof-section-106-iea-unless-the-prosecution-has-proved-the-initial-burden-the-accused-need-not-invoke-section-106-indian-evidence-act/)
not be the one spilled on that fateful day may be before: 79.** Presence of blood
of the accused in the room at best indicates that at some point in time the accused
was present there. This does not indicate that the accused was present on 31.08.2011
or for that matter on any given date. Importantly, the prosecution case itself is
that the accused had been visiting the house of the deceased regularly in the past.
Probability of some injury in the past causing blood to spill on the cabinet is 
one possibility which cannot be ruled out. Besides, what is important is that the
accused’s blood was not found on the clothes of the deceased or on any cloth or 
material which might have been used to strangulate the two deceased. In consequence,
this circumstance, even if it is accepted as proven, is not conclusive of the accused
being the perpetrator of the crime.

**81.** In [cases of circumstantial evidence](https://section1.in/in-npds-cases-confession-is-hit-under-section-25-indian-evidence-act/),
the presence of a strong motive lends credence to the prosecution case, though, 
absence of motive is not fatal to the prosecution case. However, if the other circumstances
are not conclusive or lack the requisite probative value to conclude that the accused
is guilty, absence of motive becomes an important reason to give the benefit of 
doubt to the accused.

**83.** Having discussed all the incriminating circumstances, the summary of our
analysis is as under:

(a) Death of the two deceased though was homicidal but whether death had occurred
in the intervening night of 31.08.2011/ 01.09.2011 is not proved beyond doubt. Possibility
of death occurring later, perhaps on 01.09.2011 or 02.09.2011 is not ruled out by
the medical evidence.

(b) The accused being present in the house of D-1 on 31.08.2011 is not proved beyond
reasonable doubt. PW-1, the witness of last seen circumstance, makes an improvement
over his previous statement and is not wholly reliable. PW-4 and PW-18 are not credible
witnesses hence they fail to corroborate the last seen circumstance narrated by 
PW-1.

(c) It is not proved beyond reasonable doubt that the lock which was produced in
Court was the one that had locked the door of D-1’s house.

(d) Recovery of keys of the lock and the mobile of D-1, at the instance of the accused,
does not inspire confidence, more so when there is an investigational lapse in obtaining
the CDR with tower location of that mobile. Besides, CDR of D-1’s mobile was not
exhibited.

(e) DNA matching of the profile generated from blood of the accused with the profile
generated from the blood stained scrape collected from a cabinet placed in the room
of D-1’s house is not conclusive about the accused being guilty of the crime as 
the accused had been a regular visitor to that house and, therefore, the presence
of blood from before is not ruled out. Importantly, blood of the accused was not
found present on the clothes of D-1 and D-2 or on the cloth with which D-1 and D-
2 were allegedly strangulated.

(f) Suppression of CDR of D-1’s mobile and its tower location creates an impression
that prosecution is suppressing vital information, as it would have helped in determining
whether the deceased died on the date and time professed by the prosecution or any
time later as also whether the accused and the deceased were at one place at any
given point in time.

(g) In a nutshell, neither the incriminating circumstances were proved beyond reasonable
doubt nor they constituted a chain so far complete as to exclude all hypothesis 
consistent with the innocence of the accused and point conclusively that it was 
the accused and no one else who, in all human probability, had committed the murders.

##### **Conclusion**

**84.** In conclusion, we have no hesitation in holding that the prosecution had
failed to bring home the charge against the accused. Consequently, we find no reason
to interfere with the decision of the High Court. The appeal is accordingly dismissed.

**Resources**
Judgments Cited

 * State of Rajasthan V. Shera Ram Alias Vishnu Dutta, (2012) 1 SCC 602: Established
   that an appellate court should not interfere with an acquittal if two views are
   possible on the evidence.
 * State of M.P. versus Bacchudas alias Balram and others, (2007) 9 SCC 135: Held
   that an appellate court must interfere only for compelling and substantial reasons.
 * Rajesh Prasad v. State of Bihar and another, (2022) 3 SCC 471: Summarized the
   precise circumstances under which an appeal against an order of acquittal may
   be entertained.
 * Hanumant v. State of Madhya Pradesh, (1952) 2 SCC 71: Laid down the foundational
   principles for assessing circumstantial evidence and the requirement of a complete
   chain.
 * Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116: Reiterated
   the rule that circumstantial evidence must leave no reasonable ground for a conclusion
   consistent with the innocence of the accused.
 * Acts and Sections Involved
    - [Indian Penal Code](https://section1.in/title-understanding-section-120b-of-the-indian-penal-code-ipc-criminal-conspiracy-and-its-implications/),
      1860
       * Section 302: Punishment for murder
    - [Code of Criminal Procedure](https://section1.in/bail-ability-of-section-3513-of-the-bharatiya-nyaya-sanhita-2023-do-colonial-era-notifications-survive-the-new-criminal-procedure-code/),
      1973
       * Section 161: Examination of witnesses by police
       * Section 313: Power to examine the accused

### Further Study

 * [Acquittal by using entire procedures available to disprove the prosecution case](https://section1.in/acquittal-by-using-entire-procedures-available-to-disprove-the-prosecution-case/)
 * [Murder case acquittal](https://section1.in/in-murder-case/)
 * [Acquittal – circumstantial evidence](https://section1.in/acquittal-circumstantial-evidence/)
 * [Murder case: Acquittal – Absence of light & sole eye-witness turned hostile](https://section1.in/acquittal-absence-of-light-sole-eye-witness-turned-hostile/)