Criminal appeal; circumstantial evidence — requirement of complete chain.
Where conviction is founded entirely on circumstantial evidence, prosecution must establish a complete chain of circumstances which is consistent only with guilt and excludes every other reasonable hypothesis; if proven circumstances permit an inference consistent with innocence, accused gets benefit of doubt. (Sharad Sarda principles applied.)
Omission in FIR — evidentiary significance.
Omission of accused’s names (Nazim and Aftab) in the FIR, despite complainant’s familiarity with them, is a material omission that weakens prosecution case and may indicate afterthought/false implication; such omissions are relevant under Section 11, Indian Evidence Act.
Overheard ‘conspiracy’ at public feast — credibility of witness (PW-2).
Testimony of witness who claimed to have overheard an open exhortation to murder at a public feast but did not disclose it in FIR or immediately thereafter, and who treated it as “loose talk”, is inherently improbable and of limited evidentiary value where it first appears at trial.
Last-seen evidence and dock identification without TIP.
Last-seen theory is weak evidence unless time-gap between sighting and death is so narrow as to exclude third-party intervention. Dock identification by witnesses who had not known accused earlier, without a Test Identification Parade (TIP), must be treated with caution and is of limited probative value.
Forensic/inconclusive scientific evidence — weight to be given.
Delay/failure in early forensic examination of weapon and exhibits, and an ultimately inconclusive FSL report (no complete DNA profile obtained), yields neutral scientific evidence which cannot be ignored; where scientific evidence is neutral/exculpatory, courts must accord it due weight and cannot sustain conviction on doubtful ocular testimony alone.
Recovery procedure and independent witnesses.
Recovery of rope/axe at scene without independent public witnesses called to testify undermines credibility of recovery; procedural defects in seizure diminish evidentiary value.
Motive and its probative value.
Alleged motive (revenge for insult to sister) was speculative and not established in a manner that strengthens circumstantial case; absence of a clear motive in a circumstantial case may tilt balance towards accused when other links are weak.
Juvenility plea — procedural note.
Although school records and medical board report were relied on to claim juvenility, Juvenile Justice Board rejected the claim on electoral roll; Court did not finally decide juvenility because appeal allowed on merits — note on Rule 12 JJ Act procedure (matriculation/birth cert/medical opinion hierarchy).
Conclusion / Order.
Convictions under Sections 302, 201 and 120-B IPC set aside; appellants (Nazim, Aftab, Arman Ali) acquitted; bail bonds/sureties discharged; appeal allowed; no costs.
2025 INSC 1184
Crl. A. No. 715 of 2018 Page 1 of 33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 715 OF 2018
NAZIM & ORS. …APPELLANT(S)
VERSUS
THE STATE OF UTTARAKHAND …RESPONDENT(S)
J U D G M E N T
SATISH CHANDRA SHARMA, J.
1. The present case has its genesis in the tragic and unnatural
death of a young boy, Muntiyaz Ali, aged merely ten years. On
the morning of 5th June 2007, he went to the family’s mango
orchard near Kishanpur to stand guard, but he did not return
home. By late evening, his prolonged absence caused alarm and
his father, Nanhe Khan (PW-1), organised a search with family
members and co‑villagers. Their efforts proved fruitless. At first
light on 6th June 2007, PW‑1 resumed the search and discovered
Muntiyaz’s lifeless body beneath a mulberry tree near a pit on
Crl. A. No. 715 of 2018 Page 2 of 33
the family’s land. A rope was found tightened around his neck,
his hands tied behind his back with a rope, and an axe drenched
in blood lying close by.
2. PW-1 immediately lodged a written complaint at Police
Station Jaspur. In his complaint, he expressed suspicion against
six co-villagers with whom he had a long-standing enmity,
namely Wahid, Muslim, Arman, Jahangir, Zahid and Babu.
Notably, two of the three present Appellants, namely Nazim and
Aftab, were not named in the initial First Information Report
(hereinafter referred as “FIR”). The police registered FIR No.
966 of 2007 under Section 302 of Indian Penal Code, 1860
(hereinafter referred as “IPC”) on 06.06.2007 at about 10 in the
morning. Subsequently, during the investigation, Nazim and
Aftab were also implicated, and a charge‑sheet was filed against
all the accused persons under Sections 302, 201, 377 and 120-B
IPC.
3. The case was committed for trial before the Court of the
Ld. Additional Sessions Judge, Kashipur, District Udham Singh
Nagar (hereinafter referred as “Trial Court”) where it was
registered as Sessions Trial Nos. 40 of 2008 and 40A of 2008.
After a full-fledged trial, the Ld. Trial Court vide its judgment
dated 05.04.2014, acquitted five of the accused, namely Wahid,
Muslim, Jahangir, Zahid and Babu of all charges. The present
Appellants namely, Nazim, Aftab and Arman Ali, were convicted
Crl. A. No. 715 of 2018 Page 3 of 33
under Sections 302, 201 and 120-B IPC and acquitted under
Section 377 of IPC. The Ld. Trial Court sentenced each of them
to undergo life imprisonment under Section 302 of IPC, along
with a fine of Rs. 5,000/- each and in default thereof, to further
undergo rigorous imprisonment for one year. For the offence
under Section 201 of IPC, they were sentenced to undergo
rigorous imprisonment for a period of seven years and a fine of
Rs.3,000/- each and in default thereof, to undergo rigorous
imprisonment for a period of 6 months. Additionally, they were
also convicted for the commission of an offence under Section
120(B) of IPC read with Section 302 of IPC and sentenced to life
imprisonment and fine of Rs.5,000/- each and in default thereof,
to further undergo rigorous imprisonment for one year. The Ld.
Trial Court directed that all the sentences were to run
concurrently.
4. The conviction rested largely on the testimony of three
prosecution witnesses. PW-2, the scribe of the FIR, who claimed
that on the night of 04.06.2007, he had overheard the accused
persons conspiring to avenge an affront to their family’s honour.
PW-3, Om Prakash, was presented as a ‘last seen’ witness who
claimed to have seen the deceased in the company of the
Appellants Nazim and Aftab shortly before the incident. PW-4,
Mohammed Rafi, was relied upon for corroborating these
circumstances. The Ld. Trial Court placed reliance on these
Crl. A. No. 715 of 2018 Page 4 of 33
testimonies and concluded that the Appellants, in furtherance of
a conspiracy, had committed the murder of the young boy.
5. Aggrieved by the order, the Appellants preferred Criminal
Appeal No. 122 of 2014, while the Complainant filed Criminal
Appeal No. 129 of 2014, before the High Court of Uttarakhand
at Nainital (hereinafter referred as “High Court”). By its
judgment dated 15.11.2017, the High Court dismissed the
appeals (hereinafter referred as “Impugned Judgement”). The
High Court observed that the Trial Court had correctly analysed
the evidence on record and found no infirmity in its findings. It
affirmed that the testimonies of PW-2, PW-3 and PW-4 were
credible and that the chain of circumstances was sufficient to
bring home the guilt of the Appellants. The present appeal assails
the said Impugned Judgment dated 15.11.2017.
IMPUGNED JUDGMENT
6. While upholding the conviction of the Appellants, the
High Court appreciated the testimonies of the prosecution
witnesses and acknowledged that the case is based on
circumstantial evidence. After examining the testimonies of the
prosecution witnesses, the High Court accepted the testimonies
of PW-2, PW-3 and PW-4 as credible and summarised what it
considered to be a complete chain of circumstantial evidence. It
observed:
Crl. A. No. 715 of 2018 Page 5 of 33
“18. What emerges from the statements of
witnesses, as discussed hereinabove, is that PW-1
Nanhe Khan's son Muntiyaz Ali was missing on
05.06.2007. He had gone to look after the mango
orchard. He did not come back till late night. The
dead body was recovered on 06.06.2007. It was the
case of strangulation. The axe was also seen by PW1 Nanhe Khan near the dead body. It was soaked
with blood. PW2 Tauhid Ali is the important
witness. He has heard Appellants being told by
Wahid, Jahid, Hussain, Jahangir, Muslim and Babu
to take revenge from the family of Nanhe Khan,
since his nephew has teased their sister. He has
heard their conversation on 04.06.2007. Nanhe
Khan's son went missing on 05.06.2007. He has
also signed the recovery memo of rope as well as of
axe. The Appellants - Nazim and Aftab were seen by
PW3 Om Prakash Singh on 05.06.2007. PW4
Mohd. Rafi has seen Nazim, Arman and Aftab
together in the evening of 05.06.2007. It is the case
of the circumstantial evidence. In order to prove the
case based on circumstantial evidence, it is
necessary to complete the chain. All the
circumstances must exclusively point towards the
guilt of the accused. In the present case, the
prosecution has completed the chain, as far as the
Appellants are concerned. They were seen on the
date of occurrence by PW3 Om Prakash Singh and
PW4 Mohd. Rafi. The conversation was heard by
PW2 Tauhid Ali, whereby the co‑accused exhorted
the Appellants to take revenge from the family of
Shamshad, who was the relative of
Nanhe Khan. The cause of death, as per the
statement of PW8 Dr. T.K. Pant was strangulation
and injury no. 1 could be caused with an axe. The
rope was recovered at the instance of Arman Ali.”
Crl. A. No. 715 of 2018 Page 6 of 33
7. The High Court thereafter adverted to certain medical and
investigative aspects, noting that:
“19. It has come in the statement of
PW8 Dr. T.K. Pant that some blunt object was
inserted in the anus of the deceased.
20. Learned counsel for the Appellants-accused has
argued that the axe was not sent for FSL
examination. It is a case of defective
investigation. However, there is overwhelming
evidence that the cause of death of deceased was
due to strangulation and injury from axe.”
8. On a careful perusal of the Impugned Judgment, it could
be seen that the High Court has heavily relied upon the
testimonies of the prosecution witnesses – PW-1 and PW-2.
Therefore, with regards to the submission that upon overhearing
the conspiracy, PW-2 should have informed PW-1, the High
Court reasoned as under:
“21. Learned Senior Advocate for the Appellants in
CRLA No. 122 of 2014 has argued that if
PW2 Tauhid Ali has heard the conversation, he
should have told it to Nanhe Khan. The fact of the
matter is that he has overheard the
conversation. The co-accused were exhorting the
Appellants to take revenge from the family of
Shamshad. Shamshad happens to be the relative of
Nanhe Khan. It has come in the statement of
PW2 Tauhid Ali that he did not take the issue very
Crl. A. No. 715 of 2018 Page 7 of 33
seriously, since there was enmity between the family
of the accused and Nanhe Khan. He was under the
impression that it was of loose talk. The statement
of PW2 Tauhid Ali does inspire confidence. He has
no animosity with the accused.”
9. The Court next dealt with the defence contention that the
feast at which the conspiracy was allegedly hatched had occurred
on 3rd June 2007 rather than 4th June 2007. It observed:
“23. DW1 Shafiq Ahmad has deposed that the feast
was on 03.06.2007. He has admitted that all the
accused were called in the feast by him. The
statement of DW2 Shamim Ahmad does not inspire
confidence, since he has not produced the original
receipt and register. The fact of the matter is that
the feast was thrown by DW1 Shafiq Ahmad on
04.06.2007. The accused namely Arman, Nazim
and Aftab were recognised by PW3 Om Prakash
and PW4 Mohd. Rafi. PW3 Om Prakash and
PW4 Mohd. Rafi are also natural witnesses. Their
statements inspire confidence.”
10. Finally, the High Court endorsed the findings of the Trial
Court and dismissed the appeal in the following terms:
“24. Learned Trial Court has correctly appreciated
the evidence, whereby the Appellants have been
convicted and sentenced, as noticed
hereinabove. There is no evidence against the other
co-accused, who have rightly been acquitted by
learned Trial Court. The prosecution has failed to
Crl. A. No. 715 of 2018 Page 8 of 33
prove that the unnatural offence has been
committed by the Appellants and co-accused.”
THE CHALLENGE
11. Taking exception to the Impugned Judgement, Ld.
Counsel on behalf of the Appellants submitted that the High
Court did not examine the grounds taken by the Appellants and
has assailed the concurrent findings of the courts below on
multiple grounds. It is submitted that the prosecution’s case is
founded solely on circumstantial evidence and has failed to
establish an unbroken chain of circumstances pointing only
towards the guilt of the Appellants. In his submission, several
vital links necessary to establish their guilt are missing.
12. First and foremost, it is contentiously submitted that the
Appellants, namely Nazim and Aftab, were not named in the FIR.
PW-1, who lodged the report, suspected six other villagers with
whom he had long-standing enmity, but did not mention the
names of the present Appellants. Counsel contended that this
omission in the earliest version of events raises serious doubt
about subsequent attempts to implicate the present Appellants.
13. Ld. Counsel for the Appellants assailed the credibility of
PW-2, Tauhid Ali, the scribe of the FIR, who later claimed to
have overheard a conspiracy meeting on the night of 04.06.2007.
Counsel submitted that his testimony cannot be relied upon for
Crl. A. No. 715 of 2018 Page 9 of 33
several reasons. First, although PW-2 scribed the FIR at the
dictation of PW-1, he did not mention any conspiracy in that
document, nor did he inform PW-1 about such an incident when
they met. Instead, PW-2 surfaced with this allegation for the first
time before the Court during trial. Secondly, when questioned,
PW-2 explained that he had treated the conversation as “loose
talk” and therefore refrained from disclosing it earlier. Counsel
submitted that such an explanation is implausible. PW-2 himself
admitted that he did not treat the matter seriously because of the
pre-existing enmity between the families. Thirdly, conspiracies
are not ordinarily conducted loudly in social gatherings so as to
be overheard by passers-by. The claim that the accused would
openly plot murder during a feast, within earshot of others seems
improbable. Fourthly, the defence highlighted that DW-1 Shafiq
Ahmad, in whose house the alleged meeting occurred,
categorically denied that any feast took place on 04.06.2007,
stating instead that his son’s marriage was solemnised on
03.06.2007.
14. The next limb of submission relates to the ‘last seen’
theory. PW-3, Om Prakash, claimed to have seen the deceased
with the Appellants, namely Nazim and Aftab, on 05.06.2007.
Learned counsel submitted that PW-3 admitted in crossexamination that he did not know the Appellants earlier. Despite
this, no test identification parade (hereinafter referred as “TIP”)
Crl. A. No. 715 of 2018 Page 10 of 33
was conducted. Counsel submitted that when a witness is a
stranger to the accused, a TIP becomes essential to test the
capacity of the witness to identify the accused. Identification for
the first time in court, without the safeguard of a prior TIP, carries
little probative value and cannot be treated as reliable evidence
of identity. Counsel further pointed out that PW-3’s wife,
Mithilesh, and his son, Pintu, were allegedly present with him at
the time of the sighting. Yet, the prosecution chose not to
examine them, though they were the most natural witnesses to
corroborate PW-3’s account. Their non-examination, according
to counsel, strikes at the root of the prosecution’s case and creates
a serious lacuna in the evidence.
15. Similarly, PW-4, Mohd. Rafi, claimed to have seen the
Appellants together on the evening of 05.06.2007. However, his
statement finds no mention in the FIR and, upon scrutiny, suffers
from internal contradictions. Counsel submitted that this
omission in the earliest version, coupled with inconsistencies in
his deposition, undermines his credibility.
16. On these grounds, the Counsel contended that the High
Court’s assertion that PW-3 and PW-4 were “natural witnesses”
and their statements “inspire confidence” ignores these
deficiencies.
17. Ld. Counsel for the Appellants also challenged the
evidentiary value of the rope and axe. He pointed out that the
Crl. A. No. 715 of 2018 Page 11 of 33
recovery was at the instance of the co-accused Arman Ali. It was
only during the pendency of the appeal before the High Court,
and at its direction, that the rope, axe, and clothes were forwarded
to the Forensic Science Laboratory for examination. The FSL
categorically reported that no complete DNA profile could be
generated from the exhibits and, therefore, no match with the
Appellants could be established. Counsel stressed that this was
the only scientific evidence available in the case and, far from
supporting the prosecution, it failed to implicate the Appellants
in any manner. He submitted that both the Trial Court and the
High Court ignored this crucial finding, even though it directly
undercut the prosecution’s case. By treating the inconclusive
DNA report as insignificant, the courts below overlooked the
settled principle that when scientific evidence tilts in favour of
the accused, it cannot be brushed aside. Counsel further
underscored that the axe was not initially sent for forensic
examination at all. This lapse, according to him, revealed a
serious flaw in the investigation. He submitted that the failure to
subject a key alleged weapon of offence to scientific analysis at
the appropriate stage amounted to defective investigation and
deprived the prosecution’s case of the corroborative support it
ought to have provided.
18. Counsel also referred to the testimony of PW-8, Dr.
T.K. Pant, who conducted the postmortem. The doctor opined
Crl. A. No. 715 of 2018 Page 12 of 33
that the cause of death was strangulation and that the injury could
have been caused by an axe. However, he also noted that a blunt
object had been inserted in the anus. The Appellants were
acquitted of the unnatural offence, and counsel argued that the
medical evidence does not, by itself, link the Appellants to the
murder. He contended that the alleged motive, i.e. revenge for an
insult to the sister of one of the co-accused is vague and
unproven. In a case involving circumstantial evidence, the
absence of motive weighs in favour of the accused.
19. It was further submitted that both the Appellants, Nazim
and Aftab were juveniles on the date of the incident, as evidenced
by their school records and the report of a medical board. The
Juvenile Justice Board rejected this claim based on an electoral
roll. Appellants submit that this contravenes Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred as “JJ Act”).
20. Even apart from juvenility, Counsel submitted that the
High Court failed to re-appreciate the evidence independently, as
it merely echoed the Trial Court’s reasoning and dismissed the
appeal without addressing the serious deficiencies pointed out by
the defence. He emphasized that the chain of circumstances is
incomplete and that the Appellants are entitled to acquittal.
21. Opposing the appeal, Ld. Counsel for the State supported
the concurrent findings of the courts below. He submitted that the
Crl. A. No. 715 of 2018 Page 13 of 33
testimonies of PW-2, PW-3, and PW-4 are cogent, trustworthy,
and mutually corroborative, and that together they establish a
complete chain of circumstances pointing only to the Appellants’
guilt. Counsel emphasised that the case rests on circumstantial
evidence and submits that prosecution has successfully proved
unbroken chain of circumstances pointing only towards the guilt
of the Appellants. He pointed out that PW-2 overheard the coaccused exhorting the Appellants to take revenge, PW-3 saw the
deceased in the company of Nazim and Aftab on the evening of
05.06.2007, and PW-4 also identified the Appellants later that
evening. According to the State, these witnesses were natural
witnesses, situated at the relevant time and place, and their
testimonies inspire confidence.
22. Counsel for the State further highlighted that the rope and
axe were recovered from the spot itself, and the post-mortem
report established that the cause of death was strangulation and
that one of the injuries could have been inflicted by an axe. He
argued that these facts provide corroborative support to the
ocular testimony.
23. Addressing the inconclusive DNA findings, Counsel
submitted that failure to obtain a complete profile does not
absolve the Appellants. He explained that forensic results often
turn inconclusive due to the degradation of biological samples
over time. Therefore, such reports cannot automatically
Crl. A. No. 715 of 2018 Page 14 of 33
exonerate an accused when other evidence firmly establishes
guilt.
24. On the issue of non-mention of the Appellants’ names in
the FIR, Counsel submitted that PW-1 initially suspected other
villagers due to prior enmity. But subsequent investigation
revealed the involvement of Nazim and Aftab. In his submission,
the omission is not fatal when credible witnesses later identified
the Appellants and linked them to the occurrence.
25. Lastly, Counsel contended that the plea of juvenility was
rightly rejected by the Juvenile Justice Board and the High Court.
He further submitted that the absence of motive is not decisive
when the prosecution has otherwise succeeded in proving a
consistent chain of circumstances sufficient to sustain a
conviction.
DISCUSSION
26. Having heard learned counsel for both parties and perused
the record, the principal issue for consideration is whether the
prosecution has succeeded in establishing, beyond a reasonable
doubt, a complete chain of circumstances leading only to the
conclusion of guilt of the Appellants, or whether the
circumstances leave room for reasonable doubt warranting
acquittal.
Crl. A. No. 715 of 2018 Page 15 of 33
27. The present case rests entirely on circumstantial evidence.
Therefore, before entering the discussion about the case of the
Appellant and the submissions of the respective counsel, it will
be worthwhile to briefly state the principles relating to any
conviction to be imposed based on circumstantial evidence,
which this Court has repeatedly laid down in various decisions.
It will be essential to extricate these principles in order to
appreciate the approach made by the Trial Court, as well as the
High Court while convicting the Appellant based on such
circumstantial evidence.
28. It is trite that in such cases, the prosecution must establish
a complete chain of circumstances consistent only with the guilt
of the accused and inconsistent with any other hypothesis. This
Court in its decision in Sharad Birdhichand Sarda v. State of
Maharashtra,
1 held that before a conviction can be sustained on
circumstantial evidence, five conditions must be fulfilled: (i) the
circumstances from which the conclusion of guilt is drawn
should be fully established; (ii) the facts so established should be
consistent only with the hypothesis of guilt; (iii) they should be
of a conclusive nature; (iv) they should exclude every possible
hypothesis except that of guilt; and (v) there must be a chain of
evidence so complete that it leaves no reasonable ground for a
conclusion consistent with innocence. These “five golden
1
(1984) 4 SCC 116
Crl. A. No. 715 of 2018 Page 16 of 33
principles” constitute the panchsheel of circumstantial evidence.
This Court has repeatedly reiterated that if the circumstances
proved are consistent either with innocence or guilt, the accused
is entitled to the benefit of doubt, and that where two views are
possible, the one favourable to the accused must be adopted.
29. Tested against these principles, in the present case, the
evidence on record can in no fathomable circumstance complete
the chain of circumstances pointing to the guilt of the accused
persons. The prosecution case reveals substantial gaps. The first
and most glaring circumstance is the omission of the names of
Nazim and Aftab in the FIR. PW-1, the complainant and the
father of the deceased, expressly named six persons with whom
he admittedly had long-standing enmity, yet he did not attribute
any role to the present Appellants, Nazim and Aftab. This Court
in Ram Kumar Pandey v. State of Madhya Pradesh2
, has
emphasised that when important facts are omitted in the FIR,
such omissions are relevant under Section 11 of the Indian
Evidence Act, 1872, in judging the veracity of the prosecution
case. The Court observed:
“9. No doubt, an FIR is a previous statement which
can, strictly speaking, be only used to corroborate
or contradict the maker of it [….] but omissions of
such important facts, affecting the probabilities of
the case, are relevant under Section 11 of the
2
(1975) 3 SCC 815
Crl. A. No. 715 of 2018 Page 17 of 33
Evidence Act in judging the veracity of the
prosecution case.”
30. In the present case, both PW-1 and PW-2 were admittedly
familiar with Nazim and Aftab. Despite this, their names were
not mentioned in the FIR, nor was any contemporaneous
explanation offered for their absence. The High Court
acknowledged the omission but brushed it aside as
inconsequential. This approach is untenable. In a case based
solely on circumstantial evidence, every circumstance must
withstand rigorous scrutiny. The failure to name two of the three
Appellants in the FIR, despite the complainant’s familiarity with
them, casts a serious shadow on the subsequent attempt to
implicate them. It raises a legitimate inference that their names
were introduced at a later stage, thereby suggesting the
possibility of false implication. If PW-1 and PW-2 genuinely
believed that Nazim and Aftab were responsible, there is no
plausible reason for their omission in the FIR. This significant
omission strikes at the root of the prosecution narrative,
undermines its credibility, and constitutes a material fact that
must weigh heavily in favour of the accused.
31. Now, coming to the first link in the chain of circumstances
relied upon by the subordinate courts to convict the Appellants is
the deposition of PW-2, Tauhid Ali. He deposed that on the night
of 04.06.2007, while returning from his fields around 10:00 p.m.,
Crl. A. No. 715 of 2018 Page 18 of 33
he passed in front of the house of Shafiq Ahmad, where a
marriage reception was underway. According to him, he noticed
several co-villagers, including Wahid, Jahid Hussain, Muslim,
Babu, Arman Ali, Nazim and Aftab, sitting on charpai near the
entrance. He claimed that Wahid, Jahid, Jahangir, Muslim and
Babu exhorted Arman, Nazim and Aftab to avenge the alleged
insult caused when Shamshad, nephew of the complainant,
teased their sister. They allegedly told the Appellants that they
should not tolerate such humiliation and that they would only be
respected if they “finished” a male member of Shamshad’s
family. PW-2 further stated that the Appellants responded by
declaring that within one or two days they would act accordingly.
PW-2 admitted that he treated these remarks as mere “loose talk”,
gave them no weightage, and walked on without reporting the
matter to anyone. Even when the boy went missing the next day,
he maintained silence, and when the body was found on
06.06.2007, he still did not disclose this alleged conspiracy.
Significantly, on that very morning, he scribed the FIR at the
dictation of PW-1, yet he omitted this crucial fact. His
explanation that he did not take the conversation seriously
because of pre-existing enmity between Wahid Ali and Nanhe
Khan’s families, and therefore assumed it was “loose talk” is
unconvincing. If indeed he had overheard an open and
categorical threat to commit murder, it is inexplicable that he
Crl. A. No. 715 of 2018 Page 19 of 33
suppressed it from the complainant, from the police, and even
from the FIR that he himself scribed.
32. Furthermore, PW-2’s testimony that he overheard such a
grave conspiracy being discussed in a marriage feast, with
several villagers and guests present, appears inherently
improbable and lacks plausibility. Conspiracies to commit
homicide are rarely, if ever, hatched so loudly and publicly as to
be overheard by passers-by. The defence witnesses, DW-1 Shafiq
Ahmad and DW-2 Shamim Ahmad, also testified that the
marriage feast had taken place on 03.06.2007 for DW-1’s son and
not on 04.06.2007, thereby casting additional doubt on PW-2’s
timeline. Added to this is the fact that PW-2 not only remained
with PW-1 during the search for the missing boy but also attested
the seizure memos for the rope and axe on 06.06.2007, yet still
kept silent about the alleged conspiracy. This belated revelation,
for the first time during the trial, bears all the hallmarks of an
afterthought.
33. The High Court brushed aside these serious contradictions
and omissions on the ground that PW-2 bore no animosity against
the Appellants and that his testimony “inspires confidence”. Be
that as it may, such an approach fails to recognise that in a case
founded solely on circumstantial evidence, every link in the
chain must be firmly established and wholly credible. The
improbabilities in PW-2’s testimony, coupled with his
Crl. A. No. 715 of 2018 Page 20 of 33
unexplained silence at crucial stages, render this circumstance
unreliable and incapable of forming part of the chain of proof.
34. The prosecution next relied on the testimonies of PW-3,
Om Prakash and PW-4, Mohd. Rafi to establish the last-seen
circumstance. The Trial Court and the High Court both accepted
these witnesses as “natural witnesses” and treated their accounts
as reliable. Upon closer scrutiny, however, serious infirmities
emerge that make their evidence less reliable.
35. PW-3 deposed that on 05.06.2007, he, along with his wife
Mithilesh and son Pintu, was harvesting sugarcane in the fields
of Sardar Harjeet Singh. Around 9:00 a.m., a boy approached
them and enquired whether they could sell him milk. PW-3
testified that upon asking, the boy disclosed that he was a resident
of Rajpur. PW-3 directed him to Sardar Harjeet Singh for milk.
According to PW-3, later in the forenoon, when they were
returning from the fields around 11:00 a.m., he saw Nazim
conversing with the deceased, under a mango tree on PW-1’s
land. He added that when he returned around 5:00 p.m. to the
sugarcane fields, he noticed a charpai lying unattended under the
same tree, but did not see any persons there.
36. In cross-examination, however, PW-3 made admissions
that significantly weaken his testimony. He candidly admitted
that he did not know either Nazim or Aftab previously. His
identification of them in court was, therefore, the first occasion
Crl. A. No. 715 of 2018 Page 21 of 33
on which he claimed to recognise them. He also admitted that the
mango trees were situated 150–200 metres away from where he
was working. The sugarcane crop he was harvesting was about
three feet high, and while cutting, he and his family members
were bending forward, facing the western side, whereas Nanhe
Khan’s orchard lay to the east. By his own admission, therefore,
his line of sight was obstructed, and he could not see what lay
ahead while engaged in harvesting.
37. Equally significant is the fact that although PW-3 claimed
his wife and son were with him at the time of the alleged sighting,
the prosecution did not examine them. Both would have been
natural witnesses capable of corroborating or contradicting his
account. Their non-examination is a glaring omission. PW-3 also
admitted that he could not say what transpired between 11:00
a.m. and 5:00 p.m., nor could he explain the presence of the
charpai he saw in the evening.
38. PW-4, Mohd. Rafi, a labourer by occupation, deposed that
on the evening of 05.06.2007, he was returning from work with
his friend, Noor Mohammed, after loading soil onto a trolley.
They stopped at Kishanpur dhaba to have tea. PW-4 stated that
as they were about to leave, he saw the Appellants Nazim and
Aftab, along with co-accused Arman, walking together from the
northern side of the chak road. According to him, on seeing PW4 and his companion, the three appeared shocked and quickly
Crl. A. No. 715 of 2018 Page 22 of 33
changed direction, walking away towards the other side. PW-4
further deposed that after witnessing this, he returned to his
village and informed PW-1, Nanhe Khan, that he had seen these
three persons.
39. In cross-examination, however, PW-4 admitted that
although he claimed to have conveyed this information to PW-1,
he could not recall when exactly he had told him. He further
acknowledged that he did not have any conversation with the
accused at the Dhaba, nor did he know from where they had come
or where they had gone after he saw them. His statement provides
no detail linking their presence on the road to the crime.
Importantly, this alleged sighting did not find mention in the FIR,
which PW-2 had scribed the very next morning at the dictation
of PW-1. The omission of such a material fact in the earliest
version of the incident severely weakens its reliability.
40. PW-4 also conceded that he joined the search party on the
night of 05.06.2007 after the child went missing, but he did not
disclose to anyone in that large gathering that he had seen the
accused earlier in the evening. This silence, despite an obvious
occasion to speak, casts further doubt on his version. It was only
during trial that PW-4 articulated these facts in detail, thereby
lending his account the character of an afterthought.
41. Both PW-3 and PW-4 thus identified the Appellants for the
first time in court. No TIP was conducted, even though PW-3
Crl. A. No. 715 of 2018 Page 23 of 33
admitted he had never known the accused earlier. It is well settled
that dock identification without a prior TIP has little evidentiary
value where the witness had no prior familiarity with the
accused. In P. Sasikumar v. State3
, this Court acquitted the
accused on precisely this ground, holding:
“17. The admitted position in this case is that the
test identification parade was not conducted. All the
prosecution witnesses who identified the accused in
the Court […] were not known to the present
Appellant. They had not seen the present Appellant
prior to the said incident. He was a stranger to both
of them….
18. […] Under these circumstances, TIP had
become necessary particularly when both the
accused, who are alleged to have committed this
murder were arrested within two days.
19. […] No explanation whatsoever has been given
by the prosecution as to why TIP was not conducted
in this case before a Magistrate as it ought to have
been done.”
42. The Court further explained that TIP is only part of the
investigative process and that the substantive evidence is dock
identification; however, where the accused is a stranger to the
witness and no TIP is held, courts must exercise extreme caution
3
(2024) 8 SCC 600
Crl. A. No. 715 of 2018 Page 24 of 33
in accepting such identification. The following paragraph of
P. Sasikumar (supra) is indicative of the same:
“21. It is well settled that TIP is only a part of police
investigation. The identification in TIP of an
accused is not a substantive piece of evidence. The
substantive piece of evidence, is only dock
identification that is identification made by witness
in court during trial.
23. […] In cases where an accused is a stranger to
a witness and there has been no TIP, the trial court
should be very cautious while accepting dock
identification by such a witness.
24. […] We are of the opinion that not conducting
a TIP in this case was a fatal flaw in the police
investigation and in the absence of TIP the dock
identification of the present appellant will always
remain doubtful. Doubt always belongs to the
accused.”
43. In the present case, it is clear that the identification of the
appellants by PW-3 and PW-4 cannot be accepted with
confidence. PW-3 himself admitted he had never known Nazim
or Aftab previously, yet no TIP was conducted. His alleged
sighting was from a considerable distance while engaged in
harvesting work, with his line of sight obstructed, and the natural
witnesses present with him were not examined. PW-4, though a
co-villager, failed to mention his alleged sighting either in the
FIR or during the search for the missing child, and could not even
recall the timing of him informing PW-1 about it. Both witnesses
Crl. A. No. 715 of 2018 Page 25 of 33
identified the Appellants for the first time in court, which, in the
absence of a TIP, renders their dock identification less credible.
Their testimonies, therefore, cannot constitute reliable evidence
of identification.
44. Even apart from the deficiencies in identification, the
‘last‑seen’ theory is itself a weak link unless the prosecution
establishes a narrow time gap between when the accused and the
deceased were seen together and the recovery of the body, such
that the possibility of intervention by a third person is excluded.
At this juncture, it is relevant to refer to the following decisions:
a. This Court has consistently cautioned against
treating the last-seen circumstance as conclusive proof of
guilt. In State of U.P. v. Satish4
, it was observed:
“22. The last-seen theory comes into play
where the time gap between the point of time
when the accused and the deceased were last
seen alive and when the deceased is found
dead is so small that the 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
4
(2005) 3 SCC 114
Crl. A. No. 715 of 2018 Page 26 of 33
together, it would be hazardous to come to a
conclusion of guilt in those cases….”
b. The same principle was reiterated in Hatti Singh v.
State of Haryana5
, where this Court held:
“28. There cannot be any doubt that
conviction can be based on circumstantial
evidence, but therefor the prosecution must
establish that the chain of circumstances only
consistently points to the guilt of the accused
and is inconsistent with his innocence.
Circumstances, as is well known, from which
an inference of guilt is sought to be drawn are
required to be cogently and firmly
established. They have to be taken into
consideration cumulatively. They must be
able to conclude that within all human
probability the accused committed the
crime.”
c. In the subsequent decision in Chattar Singh & Anr.
v. State of Haryana6
, this Court warned against drawing
hasty inferences from such evidence. It observed that the
last-seen theory is a weak kind of evidence. It would be
unsafe to base conviction solely on this circumstance
unless it is corroborated by some other strong and
clinching material.
5
(2007) 12 SCC 471
6
(2008) 14 SCC 667
Crl. A. No. 715 of 2018 Page 27 of 33
d. Most recently, in Krishan Kumar & Anr. v. State
of Haryana7
, this Court reiterated the dangers of indirect
or presumptive application of the last-seen theory stating
that the theory cannot be applied in the absence of clear
and positive testimony placing the deceased in the
company of the accused at a proximate time before the
occurrence. The doctrine cannot be stretched to presume
such presence indirectly, nor can conjectures substitute
proof. Any indirect application of the last-seen theory is
impermissible.
45. In the present case, the prosecution’s reliance on the lastseen theory is misplaced. PW-3 stated that he saw the deceased
conversing with Nazim around 11:00 a.m. on 05.06.2007,
whereas PW-4 claimed to have seen Nazim, Aftab, and Arman
walking together in the evening. The body, however, was
recovered only the next morning. The interval between the
alleged sightings and the discovery of the corpse is too wide to
exclude the possibility of intervention by others. As held
in Satish (supra), the last seen theory applies only when the time
gap is so narrow that the hypothesis of another’s involvement is
eliminated. That condition is absent here.
7 2023 SCC OnLine SC 1180
Crl. A. No. 715 of 2018 Page 28 of 33
46. Equally, the circumstances narrated by PW-3 and PW-4 do
not furnish corroboration of each other. PW-3 spoke only of a
morning sighting from a distance whereas PW-4 described an
evening encounter near a dhaba with no link to the deceased.
Neither account establishes continuity of presence or proximity
to the time of death. As cautioned in Hatti Singh and Chattar
Singh (supra), last-seen theory alone is weak evidence and
requires corroboration, which is absent in this case.
47. In this respect, as emphasised in Krishan Kumar (supra),
courts cannot presume the presence of the deceased with the
accused indirectly or through conjecture. Here, to accept the lastseen circumstance would require precisely such inference,
stretching two vague and temporally separated sightings into a
conclusion of guilt. The law does not permit such an approach.
The last-seen evidence in this case, therefore, fails to meet the
threshold laid down by this Court. It neither rules out alternative
hypotheses nor completes the chain of circumstances, and
instead leaves wide gaps inconsistent with conviction.
48. Thus, the prosecution’s reliance on PW-3 and PW-4 falters
on two counts: firstly, the absence of TIP renders their
identification unreliable and secondly, even if their testimony is
accepted, ‘last-seen’ theory alone is insufficient to sustain the
conviction in the circumstances of the present case. The High
Crl. A. No. 715 of 2018 Page 29 of 33
Court’s reliance on PW-3 and PW-4 overlooks this cautionary
principle.
49. Beside the testimonies of prosecution witnesses, the High
Court placed weight on the medical opinion of PW-8, Dr. T.K.
Pant, who conducted the post-mortem. He deposed that the cause
of death was shock and haemorrhage due to an ante-mortem stab
injury and suffocation by strangulation. He noted a deep stab
wound in the throat consistent with a sharp-edged weapon, bluish
ligature marks on the wrists, and multiple abrasions. He also
observed injuries consistent with a blunt object inserted into the
anus and opined that the stab wound could be caused by an axe
but equally by a sword or knife and the wrist marks were
consistent with a rope. While his testimony confirms homicide,
it does not link the injuries to any particular weapon or to the
appellants.
50. However, the manner in which the rope and axe were dealt
with by the investigating agency, and later by the courts below,
is deeply unsatisfactory. During the course of the hearing of the
criminal appeal, the High Court itself observed that these
material exhibits had not been properly examined. It directed that
the axe, rope, and certain items of clothing be sent for DNA and
fingerprint testing, and further directed that the blood samples of
the Appellants be collected and matched with the exhibits. Upon
examining the same, the Forensic Science Laboratory reported
Crl. A. No. 715 of 2018 Page 30 of 33
that no complete autosomal DNA profiles could be generated
from the exhibits. Consequently, no opinion could be given on a
match with the blood samples of the Appellants. In effect, the
only scientific evidence available was neutral as it neither
connected the Appellants to the crime nor corroborated the oral
testimony. This is akin to the situation in Padman Bibhar v. State
of Odisha8
, where the Supreme Court noted that the chemical
examination report was inconclusive because the blood group
could not be matched and, therefore, the last seen evidence alone
could not sustain a conviction.
51. Despite the inconclusive forensic report, the High Court
dismissed the absence of DNA evidence as inconsequential and
affirmed the conviction solely on ocular testimony. Such an
approach is untenable in a case based entirely on circumstantial
evidence. Where scientific evidence is neutral or exculpatory,
courts must give it due weight. To convict on doubtful testimony
while ignoring scientific tests is to substitute suspicion for proof.
The Supreme Court has repeatedly cautioned that suspicion,
however strong, cannot replace evidence.
52. There are further doubts about the recovery of the rope.
The prosecution claimed it was recovered from the scene in
broad daylight, yet no independent public witnesses were
8 2025 SCC OnLine SC 1190
Crl. A. No. 715 of 2018 Page 31 of 33
examined to corroborate this. The investigating officer admitted
that villagers were present during the seizure of soil samples, but
none were called to testify. Such lapses diminish the credibility
of the recovery and, by extension, the evidentiary value of the
rope.
53. In a nutshell, the medical evidence proves the fact of
homicidal death but does not implicate the Appellants. The
forensic report is neutral, the recovery is procedurally suspect,
and the High Court failed to grapple with these deficiencies.
When the only scientific evidence available neither supports the
prosecution’s narrative nor connects the accused to the crime, it
is impermissible to uphold a conviction solely on doubtful
eyewitness testimony.
54. The case of the prosecution with respect to motive is also
tenuous. The motive alleged by the prosecution is only that the
Appellants sought revenge for an insult to their sister. However,
no concrete evidence of animus was led. In Kali Ram v. State of
Himachal Pradesh9
, this Court observed that where the evidence
admits two possibilities, i.e. one pointing to guilt and the other to
innocence then the accused must receive the benefit of doubt.
Absence of motive in a circumstantial case assumes significance
and tilts the balance in favour of the accused. Here, the supposed
9
(1973) 2 SCC 808
Crl. A. No. 715 of 2018 Page 32 of 33
motive is speculative and there is no evidence that the Appellants
bore any grudge against a ten-year-old child.
55. Another aspect that deserves careful consideration is
juvenility. The Appellants placed reliance on school records and
a medical board report indicating that Nazim and Aftab were
minors at the time of the incident. The Juvenile Justice Board
dismissed this claim based on an electoral roll. Rule 12 of the JJ
Act gives primacy to matriculation or equivalent school
certificate, or in its absence a birth certificate or medical opinion.
We certainly do not find it necessary to decide this issue in view
of our conclusion on merits, however, the summary rejection of
the juvenility plea reinforces the overall perception that the High
Court did not fully re-appreciate the evidence.
CONCLUSION
56. In light of the foregoing discussion, we are of the
considered view that the prosecution has failed to establish a
complete and unbroken chain of circumstances. The
circumstances on record are not consistent with the hypothesis of
the guilt of the accused and fail to exclude every other reasonable
hypothesis, including their innocence. As is well-settled,
suspicion, however strong, cannot take the place of proof.
Accordingly, the Appellants are entitled to the benefit of the
doubt.
Crl. A. No. 715 of 2018 Page 33 of 33
57. Hence, the conviction and sentence of the Appellants
Nazim, Aftab and Arman Ali under Sections 302, 201 and 120-B
IPC, as affirmed by the High Court in its judgment dated
15.11.2017, cannot be sustained. The appeal is accordingly
allowed.
58. In view thereof, the Impugned Judgment dated 15.11.2017
passed by the High Court of Uttarakhand at Nainital and the
judgment dated 05.04.2014 passed by the Ld. Additional
Sessions Judge, Kashipur, are set aside to the extent that the
Appellants are acquitted of charges under Sections 302, 201 and
120-B IPC. Since the appellants are on bail, their bail bonds and
sureties shall stand discharged.
59. The captioned appeal stands disposed of in the aforesaid
terms. Application(s), if any, shall also stand disposed of. No
costs.
……………………………………J.
[M. M. SUNDRESH]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
October 06, 2025
