Santosh Gurung vs. State of Sikkim – Criminal Appeal No. 107 of 2018 – 2026 INSC 1073 – October 1, 2026 – Hon’ble Mr. Justice Ujjal Bhuyan, J. and Hon’ble Mr. Justice Atul S. Chandurkar, J.
Appellant and impugned order challenged
The appellant, Santosh Gurung, assailed his conviction under Sections 376(2)(i), 302, and 201 of the Indian Penal Code, 1860, alongside Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, challenging the judgment of the High Court of Sikkim in Criminal Appeal No. 19 of 2016 which upheld the Sessions Court’s judgment in S.T. (POCSO) Case No. 20 of 2014 sentencing him to undergo life imprisonment. [Paragraphs 1, 3, 11]
Factual matrix
On 06.11.2013, the appellant allegedly departed to purchase vegetables and took his minor niece despite objections from the complainant, following which both went missing, prompting a missing report at Rongli Police Station on 12.11.2013. The appellant was apprehended at Siliguri on 12.05.2014, leading to the registration of an FIR on 13.05.2014 alleging an extra-judicial confession of rape and throttling, whereafter the prosecution effected discoveries on 15.05.2014 under Section 27 of the Indian Evidence Act comprising skeletal remains, clothing, and a shawl from an open area frequented by villagers. [Paragraphs 2, 8, 9(a)(i)-(v), 9(b)(i)]
Lower courts verdicts
The learned Sessions Court, by judgment dated 20.04.2016 in S.T. (POCSO) Case No. 20 of 2014, convicted the appellant under Sections 376(2)(i), 302, and 201 of the Indian Penal Code, 1860, and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, sentencing him to life imprisonment on circumstantial evidence. The High Court of Sikkim, in appeal under Section 374 of the Code of Criminal Procedure, 1973, re-appreciated the evidentiary record and affirmed the appellant’s conviction and sentence via the impugned judgment in Criminal Appeal No. 19 of 2016. [Paragraphs 1, 2, 3, 11]
Core legal arguments of appellant vs respondent
Counsel for the appellant argued that the conviction rested on an incomplete chain of circumstantial evidence, given that the last seen circumstance was unsupported by prosecution witnesses, the FIR suffered an unexplained six-month delay, the Section 27 recovery was invalid as it was executed from an open and frequented locus, and the DNA report decisively proved that the recovered bones were of human male origin rather than the female victim. In response, counsel for the respondent State contended that the circumstantial links unerringly demonstrated the guilt of the appellant alone, and that the appellant’s failure to furnish an explanation or account for incriminating circumstances during his examination under Section 313 of the Code of Criminal Procedure reinforced the chain of guilt, warranting dismissal of the appeal. [Paragraphs 4, 5]
Ratio Decidendi
To sustain a conviction founded entirely on circumstantial evidence, the proved circumstances must be conclusive, must exclude every hypothesis consistent with innocence, and must establish within all human probability that the act was committed by the accused alone, without conjecture or suspicion substituting for legal proof. The last seen doctrine is inapplicable where the temporal hiatus between the alleged sighting and discovery is substantial enough to admit the intervention of third parties, while discovery under Section 27 of the Evidence Act lacks probative weight when items are recovered from places ordinarily visible to and frequented by the public. Furthermore, where forensic DNA reports contradict the prosecution by establishing that recovered skeletal remains belong to a male, corpus delicti and identity fail, and an accused’s statement or silence under Section 313 of the Code of Criminal Procedure cannot be treated as substantive evidence to supply deficiencies in the prosecution’s case or shift the burden of proof. [Paragraphs 6, 7, 9(a)(v), 9(b)(v), 9(c)(iii), 9(f)(i)-(ii), 10, 11]
Important Paragraphs
We have heard the learned counsel for the parties at length. With their assistance, we have also gone through the records of the case including the deposition of all witnesses. We have, thereafter, given due consideration to the entire material on record. In our view, the conviction of the appellant solely on the basis of circumstantial evidence deserves to be interfered with since the chain of circumstances does not appear to be complete. Rather, the said chain of circumstances appears broken at various places.
Before proceeding to assess the entire material on record brought by the prosecution to establish the guilt of the appellant, it would be fruitful to bear in mind the following extract from the decision of this Court in Hanumant vs. The State of Madhya Pradesh rendered by Bench of three learned Judges:
“In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge, where he said :-
“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”
It is well to remember that in cases where the evidence in 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. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence 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 done by the accused.”
Chain of links according to the prosecution
According to the prosecution, the following circumstances form a chain that links the appellant with the offence with which he is charged:
a) The appellant was last seen with the victim.
b) The recovery of various articles on discovery under Section 27 of the Act of 1872.
c) The DNA report conducted on the bones and teeth recovered at the instance of the appellant.
d) The report of the FSL conducted on various articles recovered from the place of occurrence.
e) The brown shawl recovered at the instance of the appellant which was used by him after killing the victim.
f) Silence of the appellant while recording his statement under Section 313 of the Code.
It would, therefore, be necessary to consider each circumstance independently to determine whether all such circumstances when taken together form a complete chain so as to point out only to one hypothesis, namely the guilt of the appellant and no one else.
Considering the aforesaid material on record relied upon by the prosecution, a grave doubt is created as to whether the appellant was, in fact, ‘last seen’ with the victim. There is no specific evidence on record on the basis of which it could be asserted that it was indeed the appellant who had taken the victim from the house or that he was last seen with the victim after which she was found missing.
(v) Another relevant factor to be borne in mind is that the FIR is dated 13.05.2014. It states that besides the victim who was missing, the appellant, her maternal uncle, had also been missing. The appellant was traced on 12.05.2014 and on investigation, it was revealed that he had raped the victim and had thereafter killed her. The appellant was, thus, charged with causing her death on 06.11.2013. Admittedly, the corpus of the victim could not be traced. According to the prosecution, the appellant was last seen with the victim on 06.11.2013 and the victim was not discovered to be dead at least till 15.05.2014 when certain bones and teeth were discovered on memorandum under Section 27 of the Act of 1872. In the context of the period when it was claimed that the appellant was last seen with the victim and discovery of the bones and teeth by the prosecution six months thereafter, reference can be made to the decision in State of U.P. vs. Satish, wherein it was held as under:
“The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”
This circumstance, thus, is doubtful and it would be unsafe to conclude that the appellant alone was the person who was ‘last seen’ with the victim on the basis of the aforesaid material.
The deposition of this witness indicates that the place from where the recovery was effected was frequently visited by people for collecting fodder.
(iii) PW8-Surjay Rai was another witness when the recovery was effected. In his cross-examination, he too reiterated that the spot from where the recovery was effected was not covered with thick forest growth and cow herders used to visit the said place for collecting fodder.
(iv) PW2-Kunti Maya Gurung in her cross-examination admitted that the place from where the said articles were recovered had a water channel nearby. She admitted that people used to visit the said spot to collect fodder and to graze their cattle. Whenever the water channel was blocked, people used to come there to repair the same.
(v) The aforesaid evidence indicates that recovery of the aforesaid articles made under Section 27 of the Act of 1872 was from a place that was frequented by people and the said spot could be easily seen by any person visiting the same. The reliability of a recovery effected under Section 27 of the Act of 1872 from a place ordinarily visible to others should be examined with care. A note of caution in this regard has been sounded in State of Himachal Pradesh vs. Jeet Singh. It was observed as under:
“There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is “open or accessible to others”. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of the others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.”
This factor will have to be borne in mind while assessing all the circumstances together.
(ii) PW13-Dr. O.T. Lepcha was working as Medico-legal Specialist, STNM Hospital, Gangtok, who stated that various specimens forwarded by Rongli Police Station were examined by him and he had prepared his medical opinion report at Exhibit23. He admitted in his cross-examination that in his report, he did not mention as to whether the three suspected flat bones were human bones or animal bones. He further admitted that he could not say as to whether the tooth mentioned in Exhibit-23 was that of a human. Similarly, he stated that he was not sure as to whether the piece of nail was, in fact, a nail or a piece of wood. (iii) PW16, the Investigating Officer admitted that he could not state as to whether the bones and the teeth found at the place of occurrence belonged to the victim.
From the aforesaid material on record, it is clear that the two pieces of bones marked as A2 were stated to be of human male origin. They were not biologically related with Exhibit-A6 which was a blood stain filter paper having the blood sample of the victim’s mother and Exhibit- A7 which was a blood stain filter paper with the blood sample of the victim’s sister. The prosecution, therefore, has not been able to bring on record the fact that the bones and teeth recovered at the instance of the appellant, in fact, were of the victim. The DNA report at Exhibit37, on the contrary, indicates that the pieces of bone were of male origin while the victim was a female. They naturally did not match the blood samples of the victim’s mother and sister. The DNA report at Exhibit-37, therefore, cannot be relied upon as a circumstance against the appellant.
e) Brown shawl: the origin and blood group found on the said shawl could not be detected
(i) According to the prosecution, the appellant had taken a brown shawl from the house of his sister and had laid down the victim on the said shawl. He had, thereafter, covered the victim with his black jacket. This according to the prosecution was stated by the appellant while discovering various items on memorandum under Section 27 of the Act of 1872. PW2, the mother of the victim, however, could not identify the said brown shawl shown to her when she was examined in the Court. She stated that she did not know to whom the said shawl belonged to. PW16, the Investigating Officer also admitted in his cross-examination that the said shawl did not belong to the mother of the appellant though the appellant had stated it belonged to his mother. He also admitted that he did not find any witness who had seen the accused going to the victim’s house to get the shawl. As noted above, as per the report of Regional FSL dated 19.06.2014 at Exhibit-16, the origin and blood group found on the said shawl could not be detected. This circumstance again creates a doubt on the stand taken by the prosecution regarding the appellant taking away a brown shawl from the house and laying the victim on it.
f) Statement of appellant under Section 313 of the Code
(i) The statement of appellant was recorded under Section 313 of the Code and various circumstances against him were put to him. At Question 11, the appellant was referred to the deposition of PW2 that while going for making some purchases, he wanted to take the victim along with him. However, PW2 did not permit him to do so. The appellant admitted this to be true. At Question 12, it was put to the appellant that as per the evidence of PW2, when she went inside the house after telling the appellant not to take the victim with him, he was standing near the house while the victim was standing near the door of the house. The appellant stated that this was true but further stated that he had gone to the shop alone. The appellant admitted while answering Question Nos.24 and 25 that he had gone to the residence of PW4 at about 01.00 p.m. on the relevant day and that he was heavily drunk. The appellant ultimately stated that he was falsely implicated at the behest of PW4 and that he was innocent. He had been arrested on suspicion.
On a reading of the entire statement of appellant under Section 313 of the Code, we do not find that there has been any failure on his part to explain any incriminating circumstance against him. It has to be borne in mind that only if an accused fails to offer reasonable explanation in discharge of burden placed on him in a case resting on circumstantial evidence, the same would provide an additional link in the chain of circumstances proved against him. Thus, the appellant’s silence or failure to provide any reasonable explanation can merely act as an additional link that would complete the chain. This, however, would not shift the burden of proof on an accused in a criminal trial. This position has been explained in Kashi Ram (supra) that was relied upon by the learned counsel for the respondent.
(ii) We may in this connection refer to the decision in Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan17. While explaining the relevance of statements made by the accused under Section 313 of the Code, it was held as under:
“36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.
When section 313 CrPC can be take against the accused? Explained
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.”
Thus, when it is found that the chain of circumstances relied upon by the prosecution is not complete and that the same does not inspire confidence for its acceptance, the response of the appellant recorded in his statement under Section 313 of the Code cannot be a circumstance against him, especially when other circumstantial evidence is not found to be satisfactory pointing out to the guilt of the appellant alone and none other.
Witnesses were not sure as to whether the appellant was last seen with the victim and they had own doubts
10. On an overall consideration of all the circumstances relied upon by the prosecution, we find that the evidence led by the prosecution is woefully short of pointing to the guilt of the appellant. The witnesses examined were not sure as to whether the appellant was last seen with the victim as they had their own doubts in that regard. The discovery effected under Section 27 of the Act of 1872 was from a place that was ordinarily visible to others, thus, requiring such discovery to be considered with caution. The DNA report in clear terms refers to the bone extracts being of male origin while the victim was a female. The said bones naturally did not match with the blood samples of the victim’s mother and sister. The report from the FSL also does not take the case of the prosecution any further. There is a doubt created as to whether the brown shawl claimed by the prosecution to be brought by the appellant from his mother was the same as the appellant’s mother had denied that it belonged to her. Therefore, the appellant’s statement under Section 313 of the Code cannot be taken as an additional link in the chain of circumstances. In other words, the chain of circumstances has not been formed on the basis of the prosecution evidence. The Sessions Court, in our view, failed to notice these material factors that were very much available on record. It, therefore, erred in convicting the appellant on the basis of circumstantial evidence. The High Court too failed to notice all these infirmities in the case of the prosecution. The guilt of the appellant has not been established beyond reasonable doubt. A strong doubt about his involvement in the offence is created in view of the prosecution evidence. It is also true that the victim met an unfortunate end. However, on the basis of such material on record, it would hardly be justifiable to convict the appellant for the same when none of the circumstances point towards his involvement. In the circumstances, he has to be given the benefit of doubt.
Conclusion: Acquitted
11. Resultantly, the judgment of the Sessions Court in S.T. (POCSO) Case No.20 of 2014 as affirmed by the High Court in Criminal Appeal No.19 of 2016 is quashed and set aside. The appellant is acquitted of the offence for which he was tried and convicted. He shall be set free forthwith, if not required in any other case. The Criminal Appeal is, accordingly, allowed in the aforesaid terms.
Resource
Judgments cited or quoted
- Kattavellai @ Devakar vs. State of Tamil Nadu, 2025 INSC 845 – Relied upon by the appellant to contend that recoveries under Section 27 are unreliable when made from spots frequented by members of the public.
- Naib Singh vs. State of Punjab and Ors., 1983 INSC 41 – Relied upon by the respondent State to support the concurrent conviction of the appellant.
- State of Rajasthan vs. Kashi Ram, 2006 INSC 794 – Relied upon by the State and referenced by the Court regarding the principle that an accused’s failure to furnish an explanation under Section 313 Cr.P.C. acts merely as an additional link without shifting the burden of proof.
- Manik & Ors. vs. The State of Maharashtra, 2024 INSC 734 – Cited by the respondent State in support of non-interference with concurrent convictions.
- Hanumant vs. The State of Madhya Pradesh, 1952 INSC 41 – Cited for the foundational principle that circumstantial evidence must fully establish an unbroken chain of guilt excluding all reasonable hypothesis of innocence.
- Reg v. Hodge, (1838) 2 Lew. 227 – Quoted warning against the mind’s tendency to strain circumstances and supply missing links to force them into a connected whole.
- State of U.P. vs. Satish, 2005 INSC 68 – Cited on the principle that the ‘last seen’ theory applies only where the time-gap between the sighting and discovery of death is too small to admit any other perpetrator.
- State of Himachal Pradesh vs. Jeet Singh, 1999 INSC 104 – Cited regarding Section 27 recoveries from accessible places, holding that concealment remains valid unless the object was ordinarily visible to others.
- Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, 2013 INSC 313 – Cited holding that an accused’s statement under Section 313 Cr.P.C. is not substantive evidence and cannot be used to bridge prosecution gaps or serve as the sole basis for conviction.
Acts and Sections involved
- Indian Penal Code, 1860: Sections 201, 302, 376(2)(i)
- Protection of Children from Sexual Offences Act, 2012: Sections 4, 6
- Code of Criminal Procedure, 1973: Sections 313, 315, 374
- Indian Evidence Act, 1872: Sections 3, 27
