Murder Case: Acquittal: Prosecution failed to establish beyond reasonable doubt that the recovery of dead body and failure to do Test Identification Parade of articles

Appeal

Appeal by complainant against the judgment of reversal of conviction

1. The present criminal appeals arise out of the judgment and order dated 30th January 2015 passed by the High Court of Judicature for Rajasthan at Jaipur Bench, in D.B. Criminal Appeal Nos. 923/2008, 844/2008, and 606/2010. By the impugned judgment and order, the High Court allowed the appeals of the respondents/accused persons and set aside the order of conviction and sentence passed by the Trial Court against respondents/accused persons namely, Manoj Kumar, Manjeet Kumar @ Billu, Balraj @ Tiloo, and Vijay Singh @ Sunder under Sections 364 r/w 120B, 302 r/w 120 B, 396 and 201 of the Indian Penal Code, 1860 [hereinafter referred to as “IPC”].

Brief facts

2. For the sake of brevity and for maintaining continuity, the parties are referred to as per their nomenclature before the Trial Court.

Appellant submitted a written report about the deceased as well as the vehicle went missing: 3. The factual matrix of the case is that on 28.04.2007, the complainant, Pawan Kumar Sharma (P.W.1), submitted a written report before the Police Station Khetri stating that on 26.04.2007, around 5:00 PM, two boys came to his shop and hired a Bolero Jeep, operated as a taxi by his brother Ashok Kumar Sharma [hereinafter referred to as “deceased”], to go towards Lambi Road. The deceased was supposed to return on the same night, however both the deceased as well as the vehicle went missing.

Accused were arrested during the course of investigation: 4. The report came to be lodged at the instance of P.W. 1 Pawan Kumar Sharma/complainant. On lodgment of report i.e., the First Information Report Case no. 122/2007, the criminal machinery was set into motion and the investigating agency proceeded. In the course of investigation, four accused persons namely, Manoj Kumar, Manjeet Kumar @ Billu, Balraj @ Tiloo, Vijay Singh @ Sunder and Surendra Kumar were arrested. As per prosecution accused Balraj @ Tiloo was arrested on 28.04.2007 and on the basis of his disclosure statement dead body of deceased was discovered in a dry well on the same day.

Charge sheet filed under section 302 IPC: 5. The investigation concluded by filing charge sheet against the accused persons for commission of offences under Sections 364, 302, 396 and 201 read with Section 120B IPC.

Trial started and separate trial for one accused before Juvenile Justice Board: 6. The learned Trial Court framed charges against the four accused persons whereas one of the accused person namely, Surender Kumar being juvenile was put to separate trial before the Juvenile Justice Board.

Trial: 7. Criminal Sessions Case No. 131/07 was registered against Balraj @ Tiloo, Manjeet Kumar @ Billu, Vijay Singh @ Sunder, and Manoj Kumar [hereinafter collectively referred to as ‘respondents/ accused persons’]. In order to prove its case, the prosecution presented 18 witnesses and submitted 65 documents. The respondents/accused persons, however, did not examine any witnesses but presented four documents in its support.

Trial court convicted all the accused under section 302 IPC: 8. The Trial Court on its appreciation of evidence holds all four respondents/accused persons guilty and vide its judgment and order dated 26.07.2008 convicted them for committing offences under Sections 364/120B, 302/120B, 396, and 201 of IPC and awarded sentences as follows:

“……..”

Appeal before High court: 9. Being aggrieved by the judgment and order of the Trial Court all the respondent/ accused persons challenged the judgment and order of the Trial Court by way of three separate appeals, D.B. Criminal Appeal Nos. 923/2008, 844/2008, and 606/2010 before the High Court of Rajasthan at Jaipur.

High Court acquitted all the accused by reversing the conviction: 10. The High Court on its reappreciation and scrutiny of the evidence found that the evidence led by the prosecution failed to complete the chain of circumstances so as to hold them guilty for recording the conviction and awarding the sentence. The High Court also found that the evidence insofar as the identification is concerned against one of the accused Vijay Singh @ Sunder is too weak. Consequently, the High Court set aside the judgment and order of conviction and sentence passed by the Trial Court. Resultantly all the four respondents/ accused persons were acquitted.

SLP: 11. Aggrieved by the judgment and order passed by the High Court, complainant/Pawan Kumar Sharma and State of Rajasthan have preferred separate appeals before us.

Analysis

22. We have heard learned counsels for the parties at length and also perused the material placed on record.

23. As referred to above, it is not in dispute that the case of prosecution entirely rests on circumstantial evidence. It is also not in dispute that in series of judgments of this Court principles are laid down by this Court so as to appreciate the substantial evidence. Admittedly, in the present case, the Trial Court though passed the judgment and order of conviction and awarded sentence to the accused, the High Court on reappreciation of the evidence overturned the judgment and order of the Trial Court and acquitted the accused of the offences charged against them.

Question: Whether High Court is right in acquitting the accused?

24. Thus, the question before us is whether the High Court was justified in reversing the order of conviction by granting the benefit of doubt to the respondents/ accused persons.

Analysing Article 136 Constitution

25. Before we undertook this exercise, it will not be out of place to refer to certain judgments of this Court wherein the test for exercising power under Article 136 of the Constitution of India is discussed.  

27. On the touchstone of these tests laid by this Court in above referred judgments, we are of the opinion that the High Court committed no error in reversing the judgment of conviction and acquitting all the accused. We may state our reasons supporting the conclusion arrived at by us as follows

Prosecution case is totally rests upon the theory of last seen together

28. The prosecution case, insofar as accused Balraj @ Tiloo, Manjeet Kumar @ Billu and Manoj Kumar are concerned, rests entirely on circumstantial evidence. In the case of accused Vijay Singh @ Sunder, the prosecution case substantially rests upon the theory of last seen together. The other incriminating circumstances relied upon by the prosecution include the alleged recovery of the dead body at the instance of accused Balraj @ Tiloo, the identification of accused Vijay Singh @ Sunder by PW1 Pawan Kumar Sharma and PW8 Rajendra Kumar, and the recovery of certain articles/objects from the different accused persons.

High Court rightly doubted the prosecution case based on arrest memo filed on the very same date

29. The High Court has, in our considered opinion, rightly doubted the prosecution case insofar as the alleged recovery of the dead body at the instance of accused Balraj @ Tiloo is concerned. The reasons assigned by the High Court are cogent and borne out from the record. Firstly, because at the time of arrest of accused Balraj @ Tiloo police was not aware that the deceased had been killed as PW1 merely filed a missing report, then how come on the arrest memo filed on the very same date it was mentioned that the accused was arrested for offence under Sections 302, 394 and 201 of IPC. Secondly, the testimony of P.W.5 Basant Singh, an independent witness, materially undermines the prosecution case. PW5 in his testimony stated that police had already visited and examined well from where the dead body was discovered on 28.04.2007 itself, however since the boring machine was not available, the dead body was recovered on 29.04.2007. Further P.W.5 stated that none of the accused people were present on the spot when the recovery was being made. High Court observed that the Trial Court has totally ignored the testimony of PW5, which is a crucial piece of evidence as the said testimony challenges the position of the prosecution. Thirdly, the requirement of independent witnesses, more particularly, as per Section 100(4) of Cr.P.C. is to provide credibility to the investigation. In the present case, admittedly, the dead body was recovered in the presence of one witness i.e. P.W. 2 who happens to be uncle of deceased and another person namely, Ramawtar who has not been produced by the prosecution for his examination before the Court.

Failure to produce the independent witness is nothing but withholding material witness

30. On the backdrop of these facts, the High Court observed that Ramawtar who was an independent witness and failure to produce him before the Court is nothing but withholding the material witness and this creates a doubt about the recovery of the dead body alleged at the instance of accused Balraj @ Tiloo. Therefore, the High Court was justified in holding that the prosecution failed to establish beyond reasonable doubt that the recovery of dead body was made pursuant to the disclosure statement of accused Balraj @ Tiloo.

31. It is consistently held by this Court that the suspicion however strong it may be, cannot take place of the legal evidence so as to convict an accused person. Considering this position of law, the High Court was justified in not recording the conviction against the accused persons on a weak piece of evidence i.e. recovery of dead body.

Discovery of bolero jeep is doubtful and no reliance can be placed on that

32. Furthermore, the discovery of bolero jeep, vehicle belonging to the deceased at the instance of accused Balraj @ Tiloo has been rightly doubted by the High Court. As per the testimony of PW 14, the recovery was made from the road and not from the accused’s possession. In Jaikam Khan v. State of U.P it was observed: –

“One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan i.e. the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.”

Thus, relying on the abovementioned position of law it is clear that no reliance can be placed on the recovery of the Bolero Jeep.

Test Identification Parade of accused persons

33. As far as the evidence against Accused Vijay Singh @ Sunder is concerned, PW1 Pawan Kumar and PW8 Rajendra Kumar have identified him in the Test Identification Parade (Ex P5, P6, P25, P26) and these both the witnesses have stated before the Court that they saw the accused Vijay Singh @ Sunder and Juvenile Surendra had taken deceased with bolero vehicle on hire basis in the presence of PW1 and PW8. High Court considering the testimonies of PW1 and PW8 observed as follows:

“……”

Analysing burden of proof under section 106 IEA

Appellant argues that it is the accused must explain what happened to the deceased as he was last seen in their company

34. An attempt was made by the Learned Counsel for the appellant to submit that it was for the respondents/ accused persons to explain as to what happened to the deceased, as deceased was last seen in their company and thus burden shifted upon respondents/ accused persons under section 106 of the Evidence Act.

Judgment analysis

35. This Court in Manoj @ Munna v. State of Chhattisgarh, 2025 INSC 1466 has observed as follows:

“30. It is a settled principle that Section 106 of the Indian Evidence Act, 1872 clearly provides that when a fact lies especially within the knowledge of a person, the burden of proving that fact rests upon him. Accordingly, when an accused is shown to have been last seen in the company of the deceased, it becomes incumbent upon him to explain how and when they parted ways. The explanation furnished must be reasonable, probable, and satisfactory in the opinion of the Court. If such an explanation is offered, the burden cast by Section 106 of the Evidence Act stands discharged.

However, if the accused fails to present a credible explanation regarding facts within his special knowledge, this failure constitutes an additional link in the chain of circumstantial evidence established against him. At the same time, it must be emphasized that Section 106 of the Evidence Act does not shift the primary burden of proof, which in a criminal trial always remains on the prosecution.

 31. Thus, any adverse inference under Section 106 of the Evidence Act is to be drawn against the accused person when the prosecution has been able to establish the case beyond a reasonable doubt.”

36. Further this Court in Manoj @ Munna v. State of Chhattisgarh, 2025 INSC 1466 while reiterating principle laid down in Kanhaiya Lal vs. State of Rajasthan6 observed as follows:

“28. In Kanhaiya Lal vs. State of Rajasthan this Court held that evidence on last seen together is a weak evidence and conviction only on the basis of last seen together without there being any other corroborative evidence against the accused will not be sufficient to convict the accused for an offence under Sections 302 and 201 of the IPC.”

37. Considering the aforesaid position of law and the observations of High Court, it would be appropriate to hold that the High Court, rightly held that it would be wholly unsafe and unjust to convict accused Vijay Singh @ Sunder merely on the basis of a strong suspicion arising from the evidence of last seen together and identification by PW1 and PW8. We find no infirmity in the view taken by the High Court in extending the benefit of doubt to the accused.

Absence of test identification parade of articles

38. As far as the recoveries from the accused Manjeet Kumar @ Billu is concerned, though learned counsel for the appellant heavily relied on the recoveries of the articles, we are unable to accept the submission of learned counsel to that effect, in view of the just and proper appreciation of the recoveries by the High Court in following words:

“Most pertinently, neither the tape recorder, nor the wrist watch has ever been subjected to the T.I. Parade. Even if Rajendra Kumar (P. W .8) had identified the tape recorder and the wrist watch as belonging to Ashok, even then such. identification is absolutely meaningless In the eyes of law. For, according to Rajasthan Police Rules, 1965, an object which is recovered has to be subjected to a test identification parade in order to assess its objective identification by a witness. Since neither the tape recorder, nor the wrist watch was subjected to a test identification parade, it would be too conjectural to presume that the tape recorder came from the Jeep and the wrist watch belonged to Ashok. Therefore, the recovery is insignificant. It does not connect Manjeet to the alleged crime. If he were to be convicted on the basis of this flimsy recovery, he would be convicted on the basis of conjectures and surmises. But under criminal jurisprudence, a moral conviction is impermissible. The conviction has to be a legal one.”

The view taken by the High Court also finds support from the decision of this Court in Thammaraya & Anr. v. The State Of Karnataka wherein this Court has reiterated the law relating to Test Identification Parade of recovered articles. It observed as follows:

“27. Therefore, this material omission on part of the Investigating Officer (PW-27) in not conducting a Test Identification Parade (TIP) of the recovered articles, more particularly when the case of prosecution is based solely upon recoveries of these articles, has created holes in the fabric of the prosecution story, which are impossible to mend.

28. Every piece of relevant fact needs to be sewn via the golden thread of duly proved circumstances, in order to ultimately formulate the fabric of guilt. Sadly, in the present case, the facta probantia fails to sustain and support the alleged factum probando, rendering the prosecution’s case miserably weak. Hence, the evidence led by the prosecution against the accused person is woefully short of the mandate to prove the case beyond reasonable doubt.”

Prosecution evidence is disjointed and not interlinked

40. A holistic appreciation of the evidence confirms the High Court’s observation that the prosecution’s evidence is disjointed and not interlinked. Instead of placing the Court on a firm footing, the prosecution has left it “groping in the dark”. We find that the High Court meticulously “separated grain from the chaff” and arrived at a plausible conclusion that the chain of circumstances was incomplete.

Conclusion

Appreciation of circumstantial evidence

42. Thus, it is a settled position of law that to convict the accused on the basis of circumstantial evidence, the prosecution must prove beyond reasonable doubt each of the incriminating  circumstances on which it proposes to rely; the circumstance(s) relied upon must be of a definite tendency unerringly pointing towards the accused’s guilt and must form a chain so far complete that there is no escape from the conclusion that within all human probability it is the accused and no one else who had committed the crime and they (it) must exclude all other hypothesis inconsistent with his guilt and consistent with his innocence.

Appeal dismissed

43. For all the reasons above, while keeping in mind that the view taken by the High Court is a plausible view, we do not find a good reason to interfere with the order of acquittal passed by the High Court. The appeals are accordingly dismissed.

Resources

Judgments Cited and Involved

• Tulesh Kumar Sahu v. State of Chhattisgarh – Citation: Criminal Appeal No. 753 of 2021. Brief: Relied upon by the respondents’ counsel to argue that piecemeal recovery of articles fails to establish guilt. It highlights that the solitary circumstance of unexplained recovery of articles only raises an inference that the individuals are receivers of stolen property or committed the theft, but not necessarily murder.
• Sunder Lal alia Sundera v. State of Madhya Pradesh Citation: AIR 1954 SC 28. Brief: A decision relied upon within the Tulesh Kumar Sahu judgment regarding circumstantial evidence.
• Sanwant Khan vs. State of Rajasthan Citation: AIR 1956 SC 54. Brief: Relied upon within the Tulesh Kumar Sahu judgment to establish that it is unsafe to infer that a person in possession of stolen property is the murderer, even if the theft and murder were committed at the same time.
• Baiju v. State of Madhya Pradesh Citation: Not explicitly provided beyond the name. Brief: Cited to test the ability or otherwise of the accused to explain the possession of recovered articles.
• State of M.P. v. Paltan Mallah Citation: (2005) 3 SCC 169. Brief: Cited to discuss the test for exercising power under Article 136 of the Constitution of India. It lays down that the Supreme Court should be slow to interfere with High Court acquittals unless there is a perverse appreciation of evidence resulting in a serious miscarriage of justice.
• State of Punjab v. Kewal Krishan Citation: (2023) 13 SCC 695. Brief: Reiterates the reluctance of the Court to interfere with an order of acquittal. It clarifies that interference is warranted if the High Court used a legally erroneous approach and ignored vital facts, leading to a substantial miscarriage of justice.
• State of U.P. v. Sahai Citation: (1982) 1 SCC 352: 1982 SCC (Cri) 223. Brief: Cited within the Kewal Krishan judgment concerning the rightful exercise of extraordinary jurisdiction under Article 136 of the Constitution.
• Jaikam Khan v. State of U.P Citation: (2021) 13 SCC 716. Brief: Quoted to support the view that no reliance can be placed on recoveries made from open fields or places that are accessible to one and all.
• Manoj @ Munna v. State of Chhattisgarh Citation: 2025 INSC 1466. Brief: Cited to explain the burden of proof under Section 106 of the Evidence Act when an accused is “last seen in the company of the deceased. It emphasizes that while the accused must provide a reasonable explanation, the primary burden of proof remains on the prosecution.
• Kanhaiya Lal vs. State of Rajasthan Citation: (2014) 4 SCC 715. Brief: Cited within Manoj @ Munna holding that evidence of “last seen together” is weak. A conviction based solely on this, without other corroborative evidence, is insufficient.
• Thammaraya & Anr. v. The State Of Karnataka Citation: (2025) 3 SCC 590. Brief: Cited to reiterate the law regarding Test Identification Parades (TIP) for recovered articles. It notes that a material omission in conducting a TIP creates holes in the prosecution’s story that are impossible to mend.
• Sharad Birdhichand Sarda v. State of Maharashtra Citation: (1984) 4 SCC 116. Brief: Quoted to crystallize the law regarding circumstantial evidence. It outlines the nature, character, and essential proof required for convictions relying solely on circumstantial evidence.
• Hanumant v. State of Madhya Pradesh Citation: (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129. Brief: Quoted extensively within the Sharad Birdhichand Sarda judgment as the fundamental and basic decision on circumstantial evidence. It mandates that the chain of evidence must be so complete that it leaves no reasonable ground for a conclusion consistent with the innocence of the accused.
• Tufail (Alias) Simmi v. State of Uttar Pradesh Citation: (1969) 3 SCC 198: 1970 SCC (Cri) 55. Brief: Mentioned within the Sharad Birdhichand Sarda quote as a case that has uniformly followed the principles laid down in Hanumant.
• Ramgopal v. State of Maharashtra Citation: (1972) 4 SCC 625: AIR 1972 SC 656. Brief: Mentioned within the Sharad Birdhichand Sarda quote as another case that uniformly followed the Hanumant decision regarding circumstantial evidence.

Acts and Sections

1. Indian Penal Code, 1860 (IPC)

• Section 120B: Punishes criminal conspiracy; applied alongside the substantive offences.
• Section 201: Relates to causing disappearance of evidence of an offence, or giving false information to screen the offender.
• Section 302: Punishes murder.
• Section 364: Relates to kidnapping or abducting in order to murder.
• Section 394: Relates to voluntarily causing hurt in committing dacoity (mentioned regarding an entry in the arrest memo).
• Section 396: Relates to dacoity with murder.

2. Indian Evidence Act, 1872

• Section 9: Discusses facts necessary to explain or introduce relevant facts (cited regarding the tool of Test Identification Parade).
• Section 27: Governs the admissibility of information received from an accused that leads to a discovery.
• Section 106: States that the burden of proving a fact especially within the knowledge of any person lies upon that person (discussed regarding the “last seen together” theory).
• Section 114 (Illustration A): Relates to court presumptions regarding the possession of stolen goods shortly after a theft.

3. Code of Criminal Procedure (Cr.P.C.)

• Section 100(4): Mandates the calling of independent and respectable inhabitants of the locality to witness a search/recovery to provide credibility to the investigation.

4. Constitution of India

• Article 136: Discusses the Supreme Court’s extraordinary jurisdiction regarding special leave to appeal (cited concerning the scope of interfering with High Court acquittals).

5. Other Statutory Rules

• Rajasthan Police Rules, 1965: Noted regarding the mandatory protocol requiring recovered objects to be subjected to a test identification parade to assess objective identification.

Party

Pawan Kumar Sharma v. Manoj Kumar & Ors - Criminal Appeal Nos. 1353-1355 of 2017 (with Criminal Appeal Nos. 1356, 1357, and 1358 of 2017) - 2026 INSC 539 - May 25, 2026 – Hon’ble Mr.  Justice Pankaj Mithal and Hon’ble Mr. Justice Prasanna B. Varale.