Penal Code, 1860 — Ss. 302/34 — Murder — Identity of assailants — Proof — Acquittal by Trial Court — Reversal by High Court — Sustainability
The appellants (father, son and son-in-law) were tried for the murder of Pushpendra Singh. The Trial Court acquitted all three, but the High Court, in government appeal, convicted them under S. 302 IPC and sentenced them to life imprisonment.
Held, the High Court erred in reversing the acquittal. The identity of the appellants as the persons who chased and killed the deceased was not established either by ocular evidence or by recovery of weapons. The only independent eyewitness (PW-7, Amarjeet Kaur) saw three unknown persons enter her house and assault the deceased but could not identify them. No test identification parade was held, and she was never asked to identify the appellants. The father of the deceased (PW-1), who claimed to be an eyewitness, reached the scene half an hour after the incident, as shown by the trustworthy testimony of PW-7, and was therefore not an actual eyewitness. His conduct in washing bloodstained clothes was unnatural. His presence at the scene was doubtful; he was a chance witness, as the diversion where he allegedly saw the appellants was not on his way home. PW-2 (Jwala Singh) was also a chance witness, following PW-1. No independent witness from the locality was examined.
The recovery of weapons on the disclosure of the appellants was made from open spaces, and no effort was made to match the blood on those weapons with that of the deceased. The forensic report was not produced. The alleged statement of the appellants that the recovered weapons were the weapons of offence was inadmissible under Ss. 25 and 26 of the Evidence Act; only that part of information which led to the discovery of weapons was admissible under S. 27.
Consequently, neither the ocular evidence nor the recovery evidence established the identity of the appellants as the assailants. The findings of the Trial Court acquitting the appellants were not shown to be perverse or erroneous. The High Court manifestly erred in reversing the acquittal and convicting the appellants.
Held, further, that the Trial Court having seen the demeanour of witnesses, its findings were entitled to due weight. Unless perverse, such findings ought not to be interfered with by the First Appellate Court.
Result: Appeals allowed. Conviction and sentence set aside. Appellants acquitted by extending benefit of doubt. Bail bonds discharged.
Evidence Act, 1872 — Ss. 25, 26 and 27 — Confession to police — Admissibility — Scope of S. 27 as exception to Ss. 25 and 26 — Extent of admissible portion
Held, S. 27 is an exception to Ss. 25 and 26. Only that portion of information given by an accused in custody which distinctly relates to the discovery of a fact is admissible in evidence. The part of statement asserting that the weapons so discovered were those used in commission of the offence is not admissible.
Applied: Pulukuri Kottaya v. King Emperor, 1947 MWN Cr 45 (PC) — followed.
Followed: Manjunath v. State of Karnataka, 2023 SCC OnLine SC 1421.
Criminal Procedure — Appeal against acquittal — Interference by appellate court — Principles
Held, an order of acquittal is not open to interference unless findings of the Trial Court are per se perverse or manifestly erroneous. It is safer and more appropriate to rely upon findings of the Trial Court which has seen the demeanour of the witnesses. The High Court, without recording a finding that the Trial Court’s view was perverse, erred in reversing acquittal.
Result
Appeals allowed — Conviction set aside — Appellants acquitted — Bail bonds discharged.2025 INSC 1193
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 476-477 OF 2013
RAJENDRA SINGH AND ORS. …APPELLANT(S)
VERSUS
STATE OF UTTARANCHAL ETC. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. All the three appellants, father, son and son-in-law are
accused in Session Trial No.215 of 2000 for the murder of
Pushpendra Singh, son of Diler Singh.
2. They were acquitted by the Trial Court but have been
convicted under Section 302 of Indian Penal Code (for short,
‘IPC’) with life imprisonment and a fine of Rs.10,000/- each
by the High Court vide the judgment and order dated
02.01.2013 passed in Government Appeal No.347 of 2007
(State of Uttaranchal vs. Rajendra Singh and Ors.).
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3. All the three accused have challenged the aforesaid
judgment and order of their conviction and sentence by
means of this appeal.
4. The prosecution story in brief is that on the morning of
03.06.2000, the appellant no.1 – Rajendra Singh and his
son appellant no.2 – Bhupender Singh started digging the
field of Diler Singh, the father of the deceased, for laying
down plinth. Due to the aforesaid action of the appellants,
an altercation took place between them and Diler Singh.
5. On the same day at about 1.30 p.m. when the deceased –
Pushpendra Singh was sitting at the Jogither diversion
(Tiraha), his father – Diler Singh who had gone to the flour
mill of Kakka Singh, while returning accompanied by his
brother-in-law - Papender Singh, saw the appellants coming
on the motorcycle driven by the appellant no.3 – Ranjeet
Singh at the said spot. They parked their vehicle and
exhorted the deceased who started running followed by all
the three accused persons armed with swords and carrying
a kanta (a sharp edged weapon).
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6. The deceased ran for some time towards the northern fields
raising an alarm. Witnessing the same, Diler Singh,
Papender Singh and some other persons including Jwala
Singh started running behind the accused persons to save
the deceased. The deceased, attempting to save his life,
entered into the house of one Mukhtyar Singh. The
appellants also entered the said premises and inflicted
blows with swords and Kanta upon the deceased who
ultimately died on the spot. The father of the deceased Diler
Singh (PW-1) on the same day lodged an FIR at 02.50 p.m.
at Police Station, Nanak Matta under Section 302 of IPC
(Section 103(1) BNS). The panchnama was prepared,
statement of the witnesses were recorded, site plan was also
prepared and the dead body was sent for post-mortem,
which was conducted the next day.
7. The appellant nos.1 and 3 were arrested on 05.06.2000 and
one sword and the Kanta, the alleged weapons of crime,
were recovered as per the disclosure made by the
appellants.
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8. The appellant no.2 was arrested on 07.06.2000 and the
sword used by him in the commission of the offence was
recovered based on his disclosure.
9. Upon completion of investigation, the police submitted the
chargesheet on 14.06.2000 charging all the three accused
for an offence under Section 302 read with Section 34 of the
IPC.
10. We had heard Shri Rajul Bhargava, senior advocate and
Shri Siddharth Agarwal, senior advocate along with Shri
Vivek Singh, advocate-on-record from the side of the
appellants and Shri Kuldeep Parihar, D.A.G and Ms.
Anubha Dhulia, advocate for the State of Uttarakhand.
11. The primary submission on behalf of the appellants is that
they have been falsely implicated. There is no reliable
evidence to establish the identity of the appellants as the
alleged assailants. There is no eyewitness to the incident,
except the lady of the house into which the deceased had
entered to save his life. There are large contradictions in the
statements of the witnesses and that the discovery of the
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weapons of crime is false and otherwise also has no
relevance to establish the identity of the accused with that
of the assailants.
12. The State counsel has stoutly opposed the submissions
advanced from the side of the appellants and has submitted
that all the three accused were seen by the witnesses
chasing the deceased, who had entered the house of
Mukhtyar Singh, and assaulted him with the swords and
the kanta which fact was witnessed by the lady of the
house, Amarjeet Kaur (PW-7). The clothes of PW-7 which
had blood stains were sealed by the police and the FSL
report confirmed the presence of blood on the clothes. On
the disclosure of the appellants, the weapons of crime were
recovered, and they admitted to having committed the crime
with the same. The above evidence leaves no scope for
doubt about the commission of the offence at the hands of
the appellants. Therefore, the High Court rightly reversed
the decision of acquittal recorded by the Trial Court, so as
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to convict the appellants for the offence under Section 302
of IPC and sentenced them to life imprisonment.
13. There is no dispute to the fact that on the morning of the
fateful day, appellant nos.1 and 2 had a quarrel with the
father of the deceased – Diler Singh, as they were stopped
from digging the field for laying the plinth. The aforesaid
altercation between the two groups may be a motive to
attack and kill the son of Diler Singh, but that by itself
would not be sufficient to rope in the appellants unless their
involvement in the offence is established by cogent evidence.
Therefore, the primary issue which arises for our
consideration is, whether the appellants are the real
persons who chased the deceased and killed him. This has
to be ascertained on the basis of the ocular evidence.
14. In this connection, the primary evidence is of the lady of the
house Amarjeet Kaur (PW-7). The said witness, who is the
wife of Mukhtyar Singh, the owner of the house, clearly
deposed that the three accused persons killed the boy in
the house. They entered carrying swords and other weapons
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in their hands. She tried to refrain them from assaulting
the boy, and in that process, her kurta received blood
stains. The victim fell down on the dewan after sustaining
injuries. Nobody inflicted any injury after the victim fell on
the dewan. The victim’s father and other people came there
within half an hour of the departure of the assailants. The
police took her blood-stained kurta and even the bedsheet
in their possession, which she identified as Exhibit-1 and
Exhibit-2. She categorically stated that she did not know
the name of the accused persons.
15. The aforesaid testimony of PW-7 clearly reflects that she had
seen three unknown persons, assaulting the deceased with
weapons like swords and that the deceased fell down on the
dewan, whereafter the assailants left without inflicting
further injuries upon him. The father of the deceased and
other persons came there only after about half an hour. A
careful reading of the testimony of PW-7, as a whole, would
indicate that she did not know the names of the accused
persons and thus, could not disclose their identity. She had
7
only seen three persons attacking and assaulting the boy
but could not identify those persons.
16. No identification parade was carried out and PW-7 was not
even asked to confirm whether the appellants were the
accused persons. The police failed to get the appellants
identified by her. Therefore, it is doubtful whether the
persons who assaulted the deceased were actually the
appellants.
17. The prosecution sought to establish the identity of the
accused persons with the help of testimony of Diler Singh
(PW-1) and Jwala Singh (PW-2).
18. A close look at the testimony of PW-1 would reveal that on
03.06.2000 at about 1.30 p.m., on returning from the flour
mill of Kakka Singh, he saw his deceased son sitting at
Jogither diversion on a bench, when all the three appellants
came on motorcycle carrying naked swords. They parked
the motorcycle and threatened/provoked his son,
whereupon his son started running towards the fields. The
appellants chased him with swords and kanta. His son kept
8
crying “Save Me, Save Me”. Thereupon, on hearing the
scream, he and his brother-in-law - Papender Singh, ran
after the accused persons to save the deceased. They were
followed by Jwala Singh, Bachan Singh and Bhagat Singh.
The deceased entered the house of Mukhtyar Singh to save
himself. The appellants also went inside. He saw the
appellants striking his son with weapons. His son fell on the
dewan and died due to the injuries. The appellants,
thereafter, fled from the scene.
19. In his cross-examination, he admitted that the Jogither
diversion is about 1.5 kms. away from his house and that
there are three to four shops at the diversion itself. The
house of Mukhtyar Singh is also at a distance of 1.25 kms.
At the time of the incident, people were working in the fields
and they also saw the appellants chasing his son. He also
stated that he chased the appellants for about 10-15
minutes towards the house of Mukhtyar Singh and was
about 40 to 50 steps behind them when his son entered the
house of Mukhtyar Singh. The appellants attacked his son
9
with swords and Kanta even after he fell down on the
dewan. They kept hitting him, mainly on the head, for
about a minute. Amarjeet Kaur (PW-7) had tried to save his
son and, in the process, her clothes got blood stains.
Thereafter, he hugged his son due to which his clothes also
got blood stains. He went to the police station in those very
clothes, but the clothes were neither taken nor seized by the
police.
20. If the testimony of PW-1 is seen in the light of the testimony
of PW-7, there are striking contradictions in the statements
of the two witnesses. The testimony of PW-7 is quite
trustworthy and natural. She is an independent witness
and therefore, it is safer to rely upon her statement. She has
categorically stated that the father of the deceased and
other persons had arrived at her house about half an hour
after the incident or after the accused had left the place.
The testimony of PW-7 is apparently quite trustworthy as
there is no reason to disbelieve it. It is clear from her
statement that PW-1 had reached the place of incident after
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half an hour of the incident. He is, therefore, not actually an
eyewitness who was present at the time when the
appellants allegedly attacked the deceased. He had come
there after about half an hour and as such cannot be an
eyewitness to the incident of attack. Secondly, PW-1
categorically stated that when his son fell down on the
dewan, he hugged him and, in the process, his clothes were
stained with blood. He never offered his blood-stained
clothes to the police for investigation, nor did the police
seized the same, despite the fact that he had gone to the
police station wearing them. Rather, he stated that he
washed them and wore them again. This is quite unnatural
and an indicator to the fact that the PW-1 was not actually
present when the incident of assault took place in the
house of Mukhtyar Singh, and that the story of hugging the
deceased is concocted.
21. It is also very unnatural for PW-1 to go to the Jogither
diversion while returning from the flour mill of Kakka Singh
as admittedly the said diversion is not on the way back to
11
his home. He is, therefore, a chance witness and probably
may not have seen the appellants coming on the bike or
even chasing the deceased. In these circumstances, PW-1
cannot be treated as a trustworthy witness and his evidence
cannot be relied upon to identify the appellants as the
persons who have attacked and assaulted the deceased.
22. PW-2 - Jwala Singh also appears to be a chance witness. He
was going to Jogither Diversion to purchase a soap but
when he found the PW-1 chasing the appellants, he also ran
behind him in order to help him and save the life of the
deceased. He categorically stated that he was 60-70 steps
behind PW-1. Naturally, his entry in the house of Mukhtyar
Singh would have been only after PW-1, who had entered
the house as per the ocular evidence of PW-7, about half an
hour after the incident. In the above situation, PW-1 could
not have been an actual eyewitness of the incident of
assault or the person who would have seen the appellants
well enough to recognize them as the real assailants.
12
Therefore, his evidence also could not have established the
identity of the appellants.
23. Furthermore, no independent person of the area, the
shopkeepers or the labourers working in the fields, who
allegedly saw the appellants chasing the deceased, were
called upon to enter the witness box to corroborate the
evidence of PW-1 and PW-2.
24. In view of the aforesaid facts and circumstances, the ocular
evidence of PW-7, PW-1 and PW-2, if read together, is not
sufficient to identify the appellants as the persons who
attacked and assaulted the deceased resulting in his death.
It may be pertinent to mention here that even PW-4 - Kakka
Singh, to whose flour mill PW-1 had allegedly gone and was
said to be returning from there also did not support the
statement of PW-1. He has nowhere stated that PW-1 had
been to his flour mill, as alleged by him. Therefore, the
presence of PW-1 at the scene of crime becomes doubtful.
Once his presence is doubtful, the presence of PW-2 also
13
stands belied, because he categorically stated that he was
following PW-1 and was 60-70 steps behind him.
25. The prosecution did not ask any of these witnesses to
identify the accused persons.
26. This Court, in several decisions, while considering the
evidentiary value of a chance witness, has held that the
deposition of a chance witness whose presence at the place
of incident is doubtful should be discarded, or at least be
treated with great caution and close scrutiny. Such a
chance witness must adequately explain his presence at the
place of incident, which has not been satisfactorily done in
the instant case.
27. Now, what remains before us is the recovery of the weapons
of crime to establish the identity of the appellants as the
persons involved in the crime. On the basis of the recovery
of the said weapons, we have to determine if the said
recoveries are good enough to connect the appellants with
the crime.
14
28. Undoubtedly, the recovery of one of the swords was made
from a garage, and the recovery of another sword and the
Kanta was made from bushes in sugarcane field, which was
an open space. The weapons were no doubt recovered
allegedly on the pointing out of the appellants. However, no
effort was made to match the blood on the said weapons
with that of the deceased. The weapons were sent for
forensic examination but no report of the forensic
laboratory was produced to establish that the weapons so
recovered were smeared with the blood of the deceased to
prove that they were actually used in the murder of the
deceased.
29. We are afraid that the submission of the State counsel, that
as the appellants themselves stated that they took the police
to the place where they hid the weapons, by which they
committed the offence indicates that the appellants
admitted to have committed the offence with the above
weapons, cannot be accepted. The statement of the
appellants that the weapons recovered were the weapons of
15
crime cannot be read against them in view of Sections 25
and 26 read with Section 27 of the Indian Evidence Act,
1872. Only that part of the statement which leads the police
to the recovery of the weapons is admissible, and not the
part which alleges that the weapons recovered were actually
the weapons of crime.
30. The above three provisions of the Evidence Act are
beneficial to bring home the point. They read as under:
“25. Confession to police officer not to be
proved.––No confession made to a police
officer, shall be proved as against a person
accused of any offence.
26. Confession by accused while in custody
of police not to be proved against him.––No
confession made by any person whilst he is in
the custody of a police officer, unless it be
made in the immediate presence of a
Magistrate, shall be proved as against such
person.
Explanation.––In this section “Magistrate”
does not include the head of a village
discharging magisterial functions in the
Presidency of Fort St. George or elsewhere,
unless such headman is a Magistrate
exercising the powers of a Magistrate under
16
the Code of Criminal Procedure, 1882 (10 of
1882)
27. How much of information received from
accused may be proved.––Provided that,
when any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody
of a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to the
fact thereby discovered, may be proved.”
31. A simple reading of all the three provisions conjointly
reveals that the first two provisions are substantive,
whereas Section 27 is in the nature of an exception.
Sections 25 and 26, at one hand, provide that no confession
made to a police officer or to any person while in custody of
the police, shall be admissible against a person accused of
any offence, on the other hand, Section 27 provides an
exception to the above provisions. It states that so much of
the information, received from an accused person in
custody of the police, whether in the nature of confession or
otherwise, as related distinctly to the fact thereby
discovered, may be admissible. This means that not all
17
information disclosed by a person in police custody is
required to be proved as against the accused person; only
that part which distinctly relates to the discovery of a fact is
admissible and can be proved.
32. In Pulukuri Kottaya and Ors. vs. The King Emperor1
,
the Privy Council while analysing the aforesaid three
provisions of the Evidence Act, held that the fact of
discovery, on information supplied by the accused is a
relevant fact except in a case in which the possession or
concealment of an object constitute the gist of the offence
charged. Information supplied by a person in custody such
as “I will produce a knife concealed in the roof of my house”,
only leads to the discovery of the knife concealed in the
house of the informant, but whether the knife is proved to
have been used in the commission of an offence is another
question. So if the above information is followed by the
words, “with which I stabbed A”, those words would be
inadmissible since they do not relate to the discovery of the
knife from the house of the informant, but are rather
1 1947 MWN CR 45
18
independent in nature, amounting to confession of the
crime which cannot be used against the person making it
i.e. the accused, in view of prohibition contained under
Sections 25 and 26 of the Evidence Act.
33. The aforesaid decision has recently been followed with
approval by the Division Bench of this Court in Manjunath
and Ors. vs. State of Karnataka2
wherein it has been
said that only “so much of the information” as relates
distinctly to the fact thereby discovered is admissible, and
the rest of the information stands excluded. In other words,
the information leading to the recovery of the weapons of
crime is admissible, but not the information that the crime
was actually committed by the said weapons.
34. In view of the aforesaid facts and circumstances, the
identity of the appellants as the persons involved in the
offence has not been established either by any ocular
evidence or from the recovery of the weapons of crime.
2 2023 SCC OnLine SC 1421
19
35. It is important to note that the order of acquittal passed by
the Trial Court was not open to interference by the First
Appellate Court until and unless the findings recorded by
the Trial Court were per se perverse or erroneous. It is safer
and more appropriate to rely upon the findings of the Trial
Court which has seen the demeanor of the witnesses rather
than to rely upon the findings of the First Appellate Court.
In our opinion, the High Court erred in reversing the finding
of the Trial Court without coming to the conclusion that the
findings of the Trial Court were perverse.
36. Thus, in the aforesaid facts and circumstances of the case,
we are of the view that High Court manifestly erred in
interfering with the findings of acquittal recorded by the
Trial Court and reversing the judgment so as to convict the
appellants. It is doubtful whether the offence has been
committed by the appellants. The conviction of the
appellants is accordingly set aside. The appeals are allowed,
and the appellants are acquitted of the alleged offence by
granting them the benefit of doubt.
20
37. The appellants are on bail. Their bail bonds stand
discharged.
.............……………………………….. J.
(PANKAJ MITHAL)
.............……………………………….. J.
(PRASANNA B. VARALE)
NEW DELHI;
OCTOBER 7, 2025.
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