Santosh Gurung v. State of Sikkim
[2026] 10 S.C.R. 259 : 2026 INSC 1073
Santosh Gurung
v.
State of Sikkim
(Criminal Appeal No. 107 of 2018)
01 October 2026
[Ujjal Bhuyan and Atul S. Chandurkar,* JJ.]
Issue for Consideration
Whether the conviction of the appellant solely on the basis of
circumstantial evidence ought to be interfered with since the chain
of circumstances is not complete and the appellant be given the
benefit of doubt; whether the appellant’s statement u/s.313 of the
Code of Criminal Procedure, 1973 can be taken as an additional
link in the chain of circumstances.
Headnotes†
Circumstantial Evidence – Conviction solely on the basis of,
when not justified – Appellant was convicted for the offence
punishable u/ss.376(2)(i), 302 and 201, IPC along with ss.4
and 6 of the Protection of Children from Sexual Offences
Act, 2012 and was sentenced accordingly – Order affirmed
by High Court – Interference with:
Held: Judgment of the Sessions Court as affirmed by High Court is
quashed and set aside – 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 u/s.27 of the Evidence Act was from a place
that was ordinarily visible to others, thus, requiring such discovery
to be considered with caution – Further, 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
u/s.313 of the Code of Criminal Procedure, 1973 cannot be taken
* Author
260 [2026] 10 S.C.R.
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as an additional link in the chain of circumstances – The chain of
circumstances has not been formed on the basis of the prosecution
evidence – Sessions Court failed to notice these material factors
that were very much available on record – Therefore, it erred in
convicting the appellant on the basis of circumstantial evidence –
High Court too failed to notice all these infirmities in the case of
the prosecution – 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 –
Appellant given the benefit of doubt – Acquitted. [Paras 10, 11]
Circumstantial Evidence – Code of Criminal Procedure,
1973 – s.313 – When the chain of circumstances relied upon
by the prosecution is not complete and it does not inspire
confidence, the response of the accused recorded in his
statement u/s.313 cannot be a circumstance against him,
especially when other circumstantial evidence is not found to
be satisfactory pointing out to his guilt alone and none other:
Held: On a reading of the entire statement of appellant u/s.313,
there has not 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 – 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 u/s.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. [Para 9]
Evidence Act, 1872 – s.27 – According to the prosecution,
discovery of clothes worn by victim and other articles
were made at the instance of the appellant – Reliability of
a recovery effected from a place ordinarily visible to others
to be examined with care:
[2026] 10 S.C.R. 261
Santosh Gurung v. State of Sikkim
Held: Evidence indicates that recovery of the aforesaid articles
made u/s.27 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 u/s.27 from a place
ordinarily visible to others should be examined with care. [Para 9]
Circumstantial Evidence – ‘Last seen’ theory, not proved:
Held: Considering the 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. [Para 9]
Case Law Cited
Kattavellai @ Devakar v. State of Tamil Nadu, 2025 INSC 845 :
[2025] 7 SCR 984; Naib Singh v. State of Punjab and Ors., 1983
INSC 41 : [1983] 2 SCR 770; State of Rajasthan v. Kashi Ram,
2006 INSC 794 : [2006] Supp. 8 SCR 501; Manik & Ors. v.
The State of Maharashtra, 2024 INSC 734 : [2024] 9 SCR 724;
Hanumant v. The State of Madhya Pradesh, 1952 INSC 41 : [1952]
1 SCR 1091; State of U.P. v. Satish, 2005 INSC 68 : [2005] 1 SCR
1132; State of Himachal Pradesh v. Jeet Singh, 1999 INSC 104 :
[1999] 1 SCR 1033; Raj Kumar Singh @ Raju @ Batya v. State
of Rajasthan, 2013 INSC 313 : [2013] 8 SCR 599 – referred to.
List of Acts
Penal Code, 1860; Protection of Children from Sexual Offences
Act, 2012; Code of Criminal Procedure, 1973; Evidence Act, 1872.
List of Keywords
Circumstantial Evidence; Conviction solely on the basis of
circumstantial evidence; Chain of circumstances not complete;
Chain of circumstances broken; Benefit of doubt; Last seen
theory not proved; Section 313 of Code of Criminal Procedure,
1973; Additional link in chain of circumstances; DNA report;
Bone extracts of male origin; Victim was female; FSL report not
reliable; Guilt not been established beyond reasonable doubt;
Doubt about involvement in offence.
262 [2026] 10 S.C.R.
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Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
107 of 2018
From the Judgment and Order dated 07.04.2017 of the High
Court of Sikkim at Gangtok in CRLA No. 19 of 2016
Appearances for Parties
Advs. for the Appellant(s):
Ms. Sangeeta Kumar, Ms. Vidushi Garg.
Advs. for the Respondent(s):
Sameer Abhyankar, Krishna Rastogi, Aryan Srivastava, Aakash
Thakur.
Judgment / Order of the Supreme Court
Judgment
Atul S. Chandurkar, J.
1. The appellant assails his conviction for the offence punishable under
Sections 376(2)(i), 302 and 201 of the Indian Penal Code, 1860 1
along with his conviction under Sections 4 and 6 of the Protection
of Children from Sexual Offences Act, 2012. The Sessions Court
sentenced him to undergo life imprisonment in view of his conviction
and the High Court of Sikkim 2 in appeal has maintained the same.
2. The case of the prosecution is that on 06.11.2013 at about 09.00
a.m., the appellant was asked by his mother 3 to go and purchase
some vegetables. The appellant asked his maternal niece 4 to
accompany him. However, the complainant did not permit him to
take her along. According to the prosecution, the appellant, however,
took the victim from the house. When the appellant and the victim
did not return after some time, the complainant searched for them.
She informed the victim’s mother that her child was missing. On
1 For short, ‘the Penal Code’
2 For short, ‘the High Court’
3 For short, ‘the complainant’
4 For short, ‘the victim’
[2026] 10 S.C.R. 263
Santosh Gurung v. State of Sikkim
12.11.2013, the complainant lodged a Missing Report at Rongli
Police Station giving details of the victim as well as her maternal
uncle, the appellant. The appellant was traced at Siliguri much
later. As per the First Information Report 5 dated 13.05.2014, the
appellant while being brought back from Siliguri to Rongli had stated
that he had raped the victim and had, thereafter, throttled her to
death on 06.11.2013. An offence was, accordingly, registered and
investigation was conducted. At the conclusion of the investigation,
the chargesheet was filed. The appellant denied the charge and
was, accordingly, tried. The prosecution examined sixteen witnesses
and relied upon various circumstances to bring home the guilt of the
appellant. The defence of the appellant was of denial. The learned
Judge of the Sessions Court by the judgement dated 20.04.2016
held the appellant guilty and, accordingly, sentenced him in the
manner stated hereinabove.
3. Being aggrieved, the appellant preferred an appeal under Section
374 of the Code of Criminal Procedure, 1973 6 challenging his
conviction. The High Court, on a re-appreciation of the entire evidence
on record, affirmed the order passed by the Sessions Court and
upheld the appellant’s conviction. Being aggrieved, the appellant
has come up in appeal.
4. Ms. Sangeeta Kumar, learned counsel for the appellant submitted
that the Sessions Court as well as the High Court erred in convicting
the appellant on the basis of circumstantial evidence. The various
circumstances referred to by the prosecution were not sufficient
to bring home the guilt of the appellant. Though according to the
prosecution, the appellant was last seen with the victim, the evidence
on record indicated otherwise. The prosecution witnesses were not
confident as to whether they had last seen the appellant with the
victim. Referring to the delay in registration of the FIR, she submitted
that the prosecution failed to explain the steps taken since lodging
of the Missing Report on 12.11.2013 and registration of the FIR
on 13.05.2014. She referred to the deposition of the prosecution
witnesses to urge that the chain of circumstances was not complete
and that on the basis of such evidence, the appellant could not
5 For short, ‘FIR’
6 For short, ‘the Code’
264 [2026] 10 S.C.R.
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have been convicted. The recovery effected under Section 27 of
the Indian Evidence Act, 18727 was doubtful inasmuch as the items
recovered were not related to the victim. Even the spot from where
the recovery was effected was frequented by members of the public
and, therefore, it would not be safe to rely upon such recovery. The
learned counsel placed reliance on the decision in Kattavellai @
Devakar Vs. State of Tamil Nadu 8 in this regard. The report of
the Forensic Science Laboratory9 as well as the DNA testing report
did not support the case of the prosecution. Thus, in absence of
any material evidence connecting the appellant with the incident in
question, he had been convicted. It was, thus, submitted that the
impugned judgments were liable to be set aside and the appellant
ought to be acquitted.
5. On the other hand, Mr. Sameer Abhyankar, learned counsel appearing
for the State of Sikkim supported the impugned judgments. According
to him, in absence of any eye-witness, the prosecution was justified
in relying upon various clinching circumstances that pointed to
the guilt of the appellant. Each circumstance relied upon by the
prosecution clearly indicated the involvement only of the appellant
and, therefore, both the Courts were justified in holding him guilty.
The learned counsel referred to relevant portions of the evidence
of the prosecution witnesses to substantiate his contentions. He
also submitted that in his statement under Section 313 of the
Code, the appellant failed to give proper explanation of the various
circumstances against him. His admissions in that regard were also
relevant and the same strengthened the chain of circumstances.
He, therefore, submitted that as both the Courts had concurrently
found the appellant guilty, no interference with his conviction was
called for. He placed reliance on the decisions in Naib Singh Vs.
State of Punjab and Ors.10, State of Rajasthan Vs. Kashi Ram11
and Manik & Ors. Vs. The State of Maharashtra12 and sought for
dismissal of the appeal.
7 For short, ‘the Act of 1872’
8 2025 INSC 845
9 For short, ‘FSL’
10 1983 INSC 41
11 2006 INSC 794
12 2024 INSC 734
[2026] 10 S.C.R. 265
Santosh Gurung v. State of Sikkim
6. 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.
7. 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 Pradesh13 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. Hodge14, 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
13 1952 INSC 41
14 (1838) 2 Lew. 227
266 [2026] 10 S.C.R.
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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.”
8. 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.
9. We may now consider each circumstance relied upon by the
prosecution for seeking the conviction of the appellant:
a) Appellant last seen with the victim:
(i) It is the case of the prosecution that since the appellant was
last seen with the victim, it was for him to dispel the grave
doubt created against him in this regard. PW2- Kunti Maya
Gurung, the grandmother of the victim, stated that the victim
was residing with her. On the day when the victim was found
[2026] 10 S.C.R. 267
Santosh Gurung v. State of Sikkim
missing, she thought that the appellant, who was the victim’s
maternal uncle, was likely to have taken her somewhere.
While she did not find the victim, she also noticed that the
appellant was not seen around. The prosecution relies upon
the deposition of PW2 to substantiate this circumstance. In
her cross-examination, this witness stated that on the relevant
day, apart from the appellant, herself and the victim, there
was nobody else in the house. She, however, stated that at
the relevant time, two other persons from her village had also
visited her house. She further stated that after she started
performing her household chores, she did not notice whether
the appellant and the victim went together or whether they left
separately. She did not suspect the appellant to have killed the
victim. To a question asked by the Court, the witness stated
that when she along with the appellant and the victim were
at home, the two other persons from the village mentioned
by her had already left. From the deposition of PW2, it can
be gathered that she was not very sure as to whether the
appellant and the victim left together or that they had left the
house separately.
(ii) PW1-Hari Prasad Gurung was posted as a Head Constable at
the village at the relevant point of time. In his cross-examination,
he admitted that it was true that there was no witness who had
seen the appellant taking the victim from the complainant’s
house. He further stated that no witness had seen the appellant
missing from the village on the day of the incident. He also
admitted that there was no complaint that the appellant was
missing from the village. This witness, therefore, admits that
there was no person who had witnessed the appellant taking
the victim from the complainant’s house.
(iii) PW3 is the mother of the victim. She stated that her mother did
not tell her as to from when her daughter had gone missing.
She also did not ask her mother as to with whom her daughter
had gone on the relevant day. In her cross-examination, she
admitted that her mother had told her that before the victim
was found missing, two persons from the village had visited
their house. However, she was not told their names. She further
stated that it was true that she could not say whether her
daughter had gone with the said two persons. The deposition of
268 [2026] 10 S.C.R.
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this witness again creates a doubt as to whether the appellant
was the only person who was ‘last seen’ with the victim.
(iv) PW16 is the Investigating Officer who had conducted
the necessary investigation into the offence. In his cross-
examination, he admitted that there was no person who had
seen the accused taking the victim away from the house. He
also stated that Missing Report was lodged at Rongli Police
Station on 12.11.2013 while the victim had gone missing since
06.11.2013. This witness, therefore, reiterates what was stated
by the earlier witnesses that the appellant was not seen by
anyone taking away the victim.
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. Satish15, wherein
it was held as under:
15 2005 INSC 68
[2026] 10 S.C.R. 269
Santosh Gurung v. State of Sikkim
“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.
b) Recovery under Section 27 of the Act of 1872:
(i) According to the prosecution, on 15.05.2014, at the instance
of the appellant, discovery of clothes worn by victim and other
articles were made on memorandum. As per his statement at
Exhibit-4, the appellant volunteered to show the place where
he had kept the aforesaid articles. These articles were seized
and numbered as MO-I to MO-VIII.
(ii) PW5-Anirudh Gurung was witness to the aforesaid recovery.
He stated that the said recovery was effected in his presence.
In his cross-examination, he admitted that the spot from where
the aforesaid articles were recovered could be easily seen if a
person visits the said spot. The relevant portion of his cross-
examination reads as under:
“It is true that there is an old road and a footpath
used by cattle herders who collect fodder in the
said area. It is true that the spot from where the
articles marked MO I to MO VIII were recovered is
not a thick jungle. It is true that people collecting
fodder visit the said area. It is true that the spot
270 [2026] 10 S.C.R.
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from where MO I to MO VIII were recovered could
be easily seen if a person visits the said spot.”
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 16. 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
16 1999 INSC 104
[2026] 10 S.C.R. 271
Santosh Gurung v. State of Sikkim
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.
c) DNA report:
(i) The various items seized at the instance of the appellant
were subjected to DNA analysis. These included two pieces
of bones and a bunch of black hair. The said items were
subjected to DNA isolation by organic extraction method. The
conclusion recorded by the Deputy Director-cum-Assistant
Chemical Examiner to the Government of Tripura in report
dated 27.11.2014 at Exhibit-37 is as under:
“Conclusion: -
On the basis of the above observations it can be
concluded that:-
i) The exhibit marked - A2 (source two pieces
of bone) was human male origin and are not
biologically related with the exhibit marked -A6
(source : blood stain filter paper said to be the
blood sample of Mrs. Rita Gurung) and exhibit -A7
(source : blood stain filter paper said to be the blood
sample of Miss. Prabha Gurung).
ii) The autosomal STR analysis is not possible from
exhibit -A5 (source : Bunch of black hairs)
iii) It is not possible to reply the queries No.iv, v,
vi and viii”
272 [2026] 10 S.C.R.
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(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 Exhibit-23. 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 Exhibit-37, 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.
d) Report from the FSL:
(i) As noted above, articles MO-I to MO-VIII were sent for
examination at the Regional FSL. PW11-Pooja Lohar, who
was working as Analyst-cum-Assistant Chemical Examiner at
village at RFSL Saramsa deposed in this regard. As per her
report, she was unable to ascertain whether the dried blood
found on the brown shawl, MO-VI was either human blood
or animal blood. She further admitted that she was unable to
ascertain the age of the human scalp hair found on the shawl
[2026] 10 S.C.R. 273
Santosh Gurung v. State of Sikkim
as well as other separate strands of hair at MO-VII. Similarly,
human remains could not be detected in the soil sample at
MO-VIII. The FSL report at Exhibit 16, thus, also cannot be
relied upon as a circumstance.
e) Brown shawl:
(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
274 [2026] 10 S.C.R.
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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 Rajasthan 17. 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
17 2013 INSC 313
[2026] 10 S.C.R. 275
Santosh Gurung v. State of Sikkim
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.
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.
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
276 [2026] 10 S.C.R.
Supreme Court Reports
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.
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.
Result of the case: Appeal allowed.
†Headnotes prepared by: Divya Pandey