2024 INSC 923 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 573 OF 2023

WADLA BHEEMARAIDU .…APPELLANT(S)

VERSUS

STATE OF TELANGANA ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. The instant appeal by special leave arises out of the judgment

and order dated 20th March, 2019, passed by the Division Bench

of the High Court of Telangana at Hyderabad, dismissing the

Criminal Appeal No. 1078 of 2016 preferred by the appellant and

affirming the judgment dated 13th October, 2016 rendered by the

Family Court-cum-VII-Additional Sessions Judge,

Mahabubnagar1.

2. Eight accused persons were put up for trial. The appellant

(A1) and two co-accused (A2 and A3) were charged and tried for
Signature Not Verified

Digitally signed by
JATINDER KAUR
Date: 2024.12.03
18:14:15 IST
Reason:

1 Hereinafter, being referred to as the ‘trial Court’.

1
the offences punishable under Sections 384, 364, 302 and 201 of

the Indian Penal Code, 18602, whereas the remaining co-accused

(A4-A8) were charged and tried for the offences punishable under

Sections 302, 201 read with Section 109 IPC.

3. Vide judgment dated 13th October, 2016, the trial Court

acquitted A4 to A8 of all the charges. The appellant (A1) and the

two co-accused (A2 and A3) were convicted and sentenced as

below:

(i) Section 302 IPC: Life Imprisonment and a fine of Rs. 5,000/-
(in default to undergo Simple Imprisonment for six months)

(ii) Section 364 IPC: Rigorous Imprisonment for 10 years and a

fine of Rs. 5,000/- (in default to undergo Simple Imprisonment
for six months).

(iii) Section 384 IPC: Rigorous Imprisonment for 3 years and a

fine of Rs. 5,000/- (in default to undergo Simple Imprisonment
for six months).

(iv) Section 201 IPC: Rigorous Imprisonment for 5 years and a

fine of Rs. 5,000/- (in default to undergo Simple Imprisonment
for six months).

4. A common appeal was preferred by the appellant herein(A1),

A2 and A3, before the High Court of Telangana assailing the

judgment of the trial Court. The Division Bench of the High Court

of Telangana proceeded to uphold the conviction and sentence

awarded to the appellant herein and at the same time, acquitted

2 Hereinafter, being referred to as ‘IPC’.

2
A2 and A3 of all the charges vide judgment dated 20th March, 2019

which is the subject matter of challenge in this appeal.

Brief facts:-

5. As per the prosecution case, K. Nagesh (the deceased) and

Smt. Shivaleela @ Wadla Anjali, wife of the appellant herein (A1),

developed an extra-marital affair with each other. On 7th January,

2013, they eloped from their village Thipraspally3, District

Rangareddy, Telangana. Smt. Shivaleela @ Wadla Anjali returned

to the village after four days, but K. Nagesh failed to turn up.

Consequently, on 8th January, 2013, the mother of K. Nagesh

namely, Smt. B. Laxmamma (PW-1) lodged a missing complaint4

at Police Station Utkoor, Telangana5.

6. Based on the said complaint, V. Sampath, Sub-Inspector, PS

Utkoor registered a case6, under the caption ‘man missing’ and

initiated an enquiry. It is stated that during the course of enquiry,

it came to light that K. Nagesh and Smt. Shivaleela @ Wadla Anjali,

wife of the appellant (A1) were involved in an extra-marital affair,

and a panchayat was convened in relation thereto in the village.

The appellant (A1), being the husband of Smt. Shivaleela, and the

3 Hereinafter being referred to as ‘village’.

4 Exhibit P-38
5 Hereinafter being referred to as ‘PS Utkoor’.
6 Crime No. 15 of 2013.

3
other accused persons threatened the family members of K.

Nagesh in the panchayat and under the fear of retribution, the

family members agreed to pay a compensation of Rs. 3,50,000/-

to the appellant (A1) within 10 days. It is further the case of the

prosecution that the appellant (A1) was not satisfied with the above

resolution and thus, he hatched a plan to eliminate K. Nagesh.

7. In furtherance of this nefarious design, the appellant (A1)

contacted his wife (Smt. Shivaleela) over phone and asked her to

return to the village to which she agreed. The appellant was in

continuous contact with his father-in-law (G. Hanumanth) who

conveyed that Smt. Shivaleela (wife of the appellant) and K. Nagesh

would be reaching Raichur railway station on 11th January 2013.

In order to carry out the plan to eliminate K. Nagesh, the appellant

(Al), along with his brother (A2) on one motorcycle and his brother-

in-law (A3) on another proceeded to Raichur railway station. The

accused (A4 to A8) were also informed about the arrival of K.

Nagesh and accordingly, they too proceeded to Raichur railway

station in a car. At about 00:30 hours, K. Nagesh and Smt.

Shivaleela, wife of the appellant (Al), got down at Raichur railway

station. K. Nagesh proceeded to Raichur bus stand in an auto

rickshaw. He was pursued by A1, A2, and A3, who abducted him

4
and took him towards Shakthi Nagar on their motorcycles. A1

directed A4, A5, A6, A7 and A8 to return. A1, A2 and A3 disrobed

K. Nagesh. A1 and A2 strangled and killed him with a towel

brought by A1. The assailants then crushed the face of K. Nagesh

by a big boulder so as to destroy his identity. The dead body was

concealed in a nearby water channel. The clothes worn by K.

Nagesh (the deceased) were tied up in the towel used to murder

him and were thrown in the Krishna River near Devasugur.

8. On 19th January, 2013, the family members of the deceased,

on a demand made by the accused persons paid a penalty of

Rs.3,50,000/- to the appellant (A1). On 8th February, 2013, the

appellant (Al), along with his family members went to the house of

his in-laws at Makthal and divorced his wife Smt. Shivaleela and

also took an undertaking from her. When A1 came to know about

a case having been registered at PS Utkoor regarding the

disappearance of K. Nagesh, out of fear, he approached P.

Ramalingappa (PW-6), a resident of the village, and prayed for

being provided protection. V. Sampath, Sub-Inspector, PS Utkoor

purportedly recorded the statement of PW-6 and based thereupon,

he proceeded to apprehend the accused (A1) and recorded his

confessional statement. Based on the confession so made by the

5
appellant herein (A1), the missing person complaint was converted

into an FIR7 for the offences punishable under Sections 384, 364,

302, 201 read with Section 109 IPC.

9. Further investigation of the case was assigned to N.

Venkateshwarla, Circle Inspector of Police, Makthal8 (PW-22). All

the accused persons were arrested in furtherance of the confession

made by the appellant (A1). During the course of investigation, the

Investigating Officer (PW-22) claims to have recorded the

information memo/confessional panchnama9 of the appellant (A1)

and thereafter, he forwarded a letter to the S.P., Mahabubnagar

seeking permission to visit the crime scene located at Egsanhally

village of Raichur district. A requisition was sent to H.B.

Sanamani, PSI, Raichur Rural (PW-21) for arranging local panchas

to conduct the spot panchnama. Accordingly, PW-21 arranged two

local panch witnesses namely Javeed (PW-9) and Baswaraj Patil

(PW-19). The Investigating Officer (PW-22) thereafter, proceeded to

the crime scene and prepared the spot panchnama in the presence

of Javeed (PW-9), Mallikarjun (PW-16), V. Venkataiah (PW-17) and

Baswaraj Patil (PW-19). The crime scene was photographed by K.

7 FIR No. 15/2013, PS Utkoor.

8 Hereinafter, being referred to as ‘Investigating Officer (PW-22)’.
9 Exhibit P22-A.

6
Papireddy (PW-7). No human dead body was found at the spot.

However, the Investigating Officer (PW-22) noticed some remains

viz hair, lower jaw embedded with teeth, three rib bones, one piece

of underwear(MO5), two shirt buttons (MO1), one jeans pant

button (MO2) and a boulder (MO4) at the spot which he seized vide

seizure panchnama10 dated 19th March, 2013 with the assistance

of Dr. Syed Irshad, Medical Officer (PW-15). The material objects

i.e. the bones and hair etc. found at the spot were packed by the

Medical Officer (PW-15), who handed the same over to the

Investigating Officer (PW-22). He in turn forwarded these human

remains along with the seized material objects to the FSL11.

10. The DNA profiling report12 was received which purportedly

indicated that the DNA profile of the skeletal remains collected

from the crime scene matched the DNA profile of Smt. B.

Laxmamma (mother of the deceased) (PW-1).

11. Upon concluding the investigation, the Investigating Officer

(PW-22) proceeded to file a charge sheet against A1 to A8 for the

offences mentioned above13. The offence punishable under Section

302 IPC being exclusively sessions triable, the case was committed

10 Exhibit P-34
11 Forensic Science Laboratory
12 Exhibit P-42
13 Supra, Para No. 2

7
and transferred for trial to the Court of Sessions Judge,

Mahabubnagar vide committal order dated 28th March, 2014. The

trial Court framed charges against the accused persons (A1 to A8)

for the above offences14. The accused persons pleaded not guilty

and claimed trial. In order to bring home the charges, the

prosecution examined as many as 22 witnesses and exhibited 42

documents and 23 material objects.

12. The accused, upon being questioned under Section 313 of the

Code of Criminal Procedure, 197315 denied the prosecution’s

allegation and claimed to be innocent. Upon hearing the

arguments advanced by the prosecution and defence, and after

appreciating the evidence available on record, the trial Court vide

judgment dated 13th October, 2016, proceeded to acquit A4 to A8

of the charges. A1(the appellant herein), A2 and A3 were convicted

and sentenced in the above terms16.

13. The Division Bench of the High Court of Telangana in

appeal17 reversed the conviction of A2 and A3 and acquitted them

while affirming the conviction and sentence awarded by the trial

14 Ibid
15 Hereinafter being referred to as ‘CrPC’.
16 Supra, Para No. 3.
17 Criminal Appeal No. 1078 of 2016.

8
Court to the appellant (A1). Aggrieved, the appellant (A1) is before

us in the present appeal by special leave.

Submissions on behalf of the accused-appellant: -

14. Shri A. Sirajudeen, learned senior counsel representing the

accused appellant advanced the following pertinent submissions

to assail the impugned judgments seeking acquittal for the

accused appellant: -

(i) That the entire case of the prosecution is false and

fabricated. The prosecution has failed to prove the motive

attributed to the appellant (A1) for commission of the

offence, because neither B. Laxmamma (PW-1), the mother

of the deceased nor G. Hanumanth (PW-2), the father of the

deceased, supported the prosecution case regarding the

alleged theory of motive which was based upon the so called

extra-marital affair of the deceased with Smt. Shivaleela

(PW-8), the wife of the appellant, who also did not support

the prosecution case on this aspect.

(ii) That the sole circumstance of recovery of the skeletal

remains relied upon by the High Court for convicting the

accused appellant could not be proved by the prosecution

by leading cogent and clinching evidence. In this regard, it

9
 was contended that the information provided by the accused

(A1) to the Investigating Officer (PW-22) under Section 27 of

the Indian Evidence Act, 187218 was never proved as per law

and thus, the discovery pales into insignificance and cannot

be read in evidence.

(iii)That the clothes which were allegedly discovered at the

crime scene were not identified by any of the witnesses

examined during the course of the trial as belonging to the

deceased K. Nagesh.

(iv) That the prosecution heavily relied upon DNA profiling

report19 to claim that the DNA of the skeletal remains

collected from the crime scene matched with the DNA of

Smt. B. Laxmamma (PW-1), the mother of the deceased. But

the fact remains that the prosecution led no evidence

whatsoever to establish that the blood samples of B.

Laxmamma (PW-1) (the mother of the deceased) were

actually collected during the course of investigation. In this

regard, the attention of the Court was drawn to the

testimony of PW-1 to urge that the witness never stated that

her blood samples were collected during the course of the

18 Hereinafter being referred to as ‘IEA’.

19 Exhibit P-42.

10
 investigation. Even the Medical Officer (PW-15) did not state

that he collected blood samples of any person related to the

deceased for the purpose of DNA finger printing. It was

submitted that the testimony of Smt. B. Laxmamma (PW-1)

and the Medical Officer (PW-15) totally contradicts the

version of the Investigating Officer (PW-22) on this aspect of

the prosecution case.

(v) That the crime scene was not pointed out by the appellant

(A1) to the Investigating Officer (PW-22). The Medical Officer

(PW-15) categorically admitted in his cross-examination that

the police and other persons had shown him the scene of

incident from where he collected the skeletal remains. Thus,

the circumstance of discovery of the incriminating evidence

at the instance of the accused could not be proved by proper

evidence.

(vi) That the alleged incident took place on 11th January, 2013

whereas, the skeletal remains were recovered on 19th March,

2013 i.e. nearly after two months of the incident and it is

absolutely impossible to believe that the skeletal remains

would still be lying at the crime scene after such a long

duration.

11
 (vii) That it is settled law that in a case purely based on

circumstantial evidence, the chain of circumstances must

be proved beyond all manner of doubt. Even if one of the

links in the chain of incriminating circumstances is broken,

the accused becomes entitled to the benefit of doubt.

Reliance in this regard was placed on Bhim Singh v. State

of Uttarakhand20 and Darshan Singh v. State of Punjab21.

15. Learned senior counsel concluded his submissions by urging

that the prosecution could not prove the chain of incriminating

circumstances by leading cogent/reliable evidence and failed to

even remotely establish that the appellant was in any manner

connected with the alleged crime.

16. On these grounds, the learned counsel representing the

appellant implored the Court to accept the appeal, set aside the

impugned judgment and acquit the accused appellant by giving

him the benefit of doubt.

Submissions on behalf of Respondent-State: -

17. Per contra, Ms. Devina Sehgal, learned Standing Counsel

representing the State, vehemently and fervently opposed the

submissions advanced by the learned counsel for the appellant

20 (2015) 4 SCC 281.

21 2024 INSC 19.

12
and submitted that every reasonable hypothesis based on the

evidence led by the prosecution irrefutably points toward the guilt

of the accused appellant. She urged that the two Courts, i.e., the

trial Court as well as the High Court after appreciating and

reappreciating the evidence, have recorded concurrent findings of

facts for convicting the appellant and for affirming his conviction

and hence, this Court in exercise of its jurisdiction under Article

136 of the Constitution of India should be slow to interfere in such

concurrent findings of facts. She advanced the following

submissions seeking dismissal of the appeal: -

i. That the prosecution has led cogent evidence that K. Nagesh

(the deceased) was involved in an illicit affair with the wife of

the accused appellant and fueled with the said motive, he

hatched a conspiracy with the co-accused and acting in

furtherance of such nefarious design, K. Nagesh (the

deceased) was murdered and his dead body was concealed

so as to destroy the evidence of the crime.

ii. That crime scene was in the exclusive knowledge of the

appellant(A1). He suffered a disclosure statement22 to the

Investigating Officer (PW-22), and based thereupon, the

22 Exhibit P22-A

13
 Investigating Officer along with the panch witnesses (PW-9

and PW-19) proceeded to the crime scene and recovered the

skeletal remains of the deceased K. Nagesh. Since the place

of concealment of the skeletal remains of the deceased was

in the exclusive knowledge of the appellant (A1), the recovery

thereof at his instance would give rise to the only inference

that it was the appellant (A1) and no one else who murdered

K. Nagesh (the deceased) and then tried to destroy the

evidence by hiding his dead body.

iii. That there was a gap of two months between the time of

murder and the discovery of the skeletal remains,

apparently thus, the dead body must have been destroyed

by the scavengers/natural elements.

iv. That the DNA of the skeletal remains recovered from the

crime scene matched with the blood samples of Smt. B.

Laxmamma (PW-1), the mother of the deceased, as is clearly

proved by the DNA profiling report23. This incriminating

circumstance irrefutably points towards the guilt of the

accused.

23 Exhibit P-42

14
 On these grounds, learned counsel contended that the

present appeal against the judgment of the trial Court and the

High Court deserve to be dismissed.

Discussion and Conclusion: -

18. We have given our thoughtful consideration to the

submissions advanced at the bar and have gone through the

material placed on record.

19. There is no dispute that the case of prosecution is based

purely on circumstantial evidence, since no witness claims to have

seen the alleged incident wherein K. Nagesh (the deceased) was

murdered.

20. The law is well-settled that in a case based purely on

circumstantial evidence, the prosecution is under an obligation to

prove each and every link in the chain of incriminating

circumstances beyond all manner of doubt and that the

circumstances so relied upon by the prosecution should point

unequivocally towards the guilt of the accused and should be

inconsistent with the guilt of anyone else or the innocence of the

accused. Only in the event of the complete/unbroken chain of

circumstances being proved by cogent and clinching evidence

which does not admit of any other inference, otherwise that of the

15
guilt of the accused, the conviction can be recorded. Reference in

this regard may be made to Sharad Birdhichand Sarda v. State

of Maharashtra24, the relevant extract of which reads as under: -

“153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against an
accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should be
proved” as was held by this Court in Shivaji Sahabrao Bobade
v. State of Maharashtra [(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p. 807]

“Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court
can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.

24 (1984) 4 SCC 116.

16
 154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
(emphasis supplied)

21. Having noted the principles governing the case based purely

on circumstantial evidence, we now proceed to discuss the case

set up by the prosecution in order to bring home the guilt of the

accused appellant.

22. In view of the detailed discussion of the facts enumerated

above, it is apparent that the following circumstances were

portrayed by the prosecution in its endeavour to establish the

charges against the accused appellant: -

(i) Motive, i.e. to say that K. Nagesh (the deceased) and Smt.

Shivaleela, the wife of the appellant (PW-8) were involved in

an illicit extra-marital affair which fueled the appellant

herein with such animosity that he hatched a plan to

eliminate K. Nagesh (the deceased).

(ii) Incriminating recoveries in the form of skeletal remains of

the deceased and the clothes and other articles such as a

cover containing an amount to a tune of Rs. 3,50,000/- and

motorcycle used in commission of the crime allegedly

17
 recovered in furtherance of the information25 provided by the

appellant (A1) to the Investigating Officer (PW-22).

(iii)The DNA profiling report26, which establishes that the

profiling of the blood collected from the mother of the

deceased (PW-1) matched with the DNA profile of the

allegedly recovered skeletal remains.

23. Firstly, we proceed to consider the theory of motive. On going

through the entire evidence led by the prosecution, we do not find

an utterance of a single word by any of the prosecution witnesses

including the mother of the deceased (PW-1), the father of the

deceased (PW-2), that there was any complaint of an illicit affair

between K. Nagesh (the deceased) and Smt. Shivaleela, the wife of

the appellant.

24. The prosecution alleged that owing to this illicit affair, the

appellant got convened a panchayat wherein, he demanded and

extorted a sum of Rs. 3,50,000/- from the family members of the

deceased. However, such a suggestion was totally denied by PW-1

and PW-2. Both these witnesses stated that it was the chit amount

collected by their son (the deceased) which was paid by them.

Further, on going through the testimony of the Investigating

25 Exhibit P22-A
26 Exhibit P-42

18
Officer (PW-22), we find that even he did not state that any

information was provided to him regarding the so-called illicit

affair between the deceased and the wife of the appellant (PW-8)

during the entire course of investigation. The only evidence

provided regarding this aspect of motive, as per the testimony of

Investigating Officer (PW-22) was in the form of a photograph

(Exhibit P-37). However, the fact remains that even the parents of

the deceased (PW-1 and PW-2) were not made to identify this

photograph. Thus, the theory of motive attributed by the

prosecution to the accused appellant could not be established by

any credible evidence.

25. The second and most vital link of circumstantial evidence

sought to be relied upon by the prosecution was the alleged

discovery and recovery of the skeletal remains of the deceased in

furtherance of the information27 provided by the accused appellant

(A1) to the Investigating Officer (PW-22).

26. The law is well settled by a catena of judgments of this Court

that the information under Section 27 IEA which leads to discovery

of an incriminating material/evidence must be proved by the

Investigating Officer as being voluntary and uninfluenced by

27 Exhibit P22-A

19
threat, duress or coercion. The Investigating Officer is also

required to prove the contents of the information/confessional

memo to the extent they relate to the facts discovered.

27. This Court in the recent judgment of Babu Sahebgouda

Rudragoudar v. State of Karnataka28, while referring to the

earlier judgments on this point, examined the aspect regarding the

standard of proof of information provided by the accused to the

Investigating Officer under Section 27 IEA in the following terms:-

“60. We would now discuss about the requirement under law

so as to prove a disclosure statement recorded under Section
27 of the Evidence Act, 1872 (hereinafter being referred to as
“the Evidence Act”) and the discoveries made in furtherance
thereof.

61. The statement of an accused recorded by a police officer

under Section 27 of the Evidence Act is basically a
memorandum of confession of the accused recorded by the
investigating officer during interrogation which has been taken
down in writing. The confessional part of such statement is
inadmissible and only the part which distinctly leads to
discovery of fact is admissible in evidence as laid down by this
Court in State of U.P. v. Deoman Upadhyaya [State of U.P.
v. Deoman Upadhyaya, 1960 SCC OnLine SC 8 : AIR 1960
SC 1125] .

62. Thus, when the investigating officer steps into the

witness box for proving such disclosure statement, he
would be required to narrate what the accused stated to
him. The investigating officer essentially testifies about
the conversation held between himself and the accused
which has been taken down into writing leading to the
discovery of incriminating fact(s).

63. As per Section 60 of the Evidence Act, oral evidence in all

cases must be direct. The section leaves no ambiguity and
mandates that no secondary/hearsay evidence can be given in
case of oral evidence, except for the circumstances enumerated

28 (2024) 8 SCC 149.

20
in the section. In the case of a person who asserts to have heard
a fact, only his evidence must be given in respect of the same.

64. The manner of proving the disclosure statement under

Section 27 of the Evidence Act has been the subject matter of
consideration by this Court in various judgments, some of
which are being referred to below.

65. In Mohd. Abdul Hafeez v. State of A.P. [Mohd. Abdul

Hafeez v. State of A.P., (1983) 1 SCC 143 : 1983 SCC (Cri)
139] , it was held by this Court as follows : (SCC p. 146, para
5)

“5. … If evidence otherwise confessional in character

is admissible under Section 27 of the Evidence Act, it
is obligatory upon the investigating officer to state
and record who gave the information; when he is
dealing with more than one accused, what words were
used by him so that a recovery pursuant to the
information received may be connected to the person
giving the information so as to provide incriminating
evidence against that person.”

66. Further, in Subramanya v. State of Karnataka

[Subramanya v. State of Karnataka, (2023) 11 SCC 255] ,
it was held as under : (SCC pp. 299-300, paras 76 to 78)

“76. Keeping in mind the aforesaid evidence, we

proceed to consider whether the prosecution has been
able to prove and establish the discoveries in
accordance with law. Section 27 of the Evidence Act
reads thus:

‘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.’

77. The first and the basic infirmity in the

evidence of all the aforesaid prosecution
witnesses is that none of them have deposed the
exact statement said to have been made by the
appellant herein which ultimately led to the

21
discovery of a fact relevant under Section 27 of
the Evidence Act.

78. If, it is say of the investigating officer that the

appellant-accused while in custody on his own free
will and volition made a statement that he would
lead to the place where he had hidden the weapon
of offence, the site of burial of the dead body,
clothes, etc. then the first thing that the
investigating officer should have done was to call
for two independent witnesses at the police
station itself. Once the two independent witnesses
would arrive at the police station thereafter in
their presence the accused should be asked to
make an appropriate statement as he may desire
in regard to pointing out the place where he is said
to have hidden the weapon of offence, etc. When
the accused while in custody makes such
statement before the two independent witnesses
(panch witnesses) the exact statement or rather
the exact words uttered by the accused should be
incorporated in the first part of the panchnama
that the investigating officer may draw in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station
in the presence of the independent witnesses so
as to lend credence that a particular statement
was made by the accused expressing his
willingness on his own free will and volition to
point out the place where the weapon of offence
or any other article used in the commission of the
offence had been hidden. Once the first part of the
panchnama is completed thereafter the police
party along with the accused and the two
independent witnesses (panch witnesses) would
proceed to the particular place as may be led by
the accused. If from that particular place anything
like the weapon of offence or bloodstained clothes
or any other article is discovered then that part of
the entire process would form the second part of
the panchnama. This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section 27 of
the Evidence Act. If we read the entire oral
evidence of the investigating officer then it is
clear that the same is deficient in all the aforesaid
relevant aspects of the matter.”

22
 67. Similar view was taken by this Court in Ramanand v. State
of U.P. [Ramanand v. State of U.P., (2023) 16 SCC 510 : 2022
SCC OnLine SC 1396] , wherein this Court held that mere
exhibiting of memorandum prepared by the investigating officer
during investigation cannot tantamount to proof of its contents.
While testifying on oath, the investigating officer would be
required to narrate the sequence of events which transpired
leading to the recording of the disclosure statement.”

(emphasis supplied)

28. Keeping the above principle in mind, let us now examine the

testimony of the Investigating Officer (PW-22) on the aspect of

disclosure and discovery of incriminating facts at the instance of

the accused. The relevant extracts of his testimony are reproduced

hereunder:-

“The L.W.24-Sampat, S.I. of Police, produced A1-Bheem Raidu

before me. On my interrogation he admitted commission of
offence and when he about mood of confess I secured the
mediators P.W.s 16 and 17. In their presence I prepared
confession panchanama of A1. Ex.P.22-A, after preparing the
confession panchanama I send letter to the S.P.,
Mahabubnagar, for obtaining the permission to visit the scene
of offence situated at Egsanhally village of Raichur District of
Karnataka State along with panchas and P.W.7, to Photograph
the scene. After applying the permission from S.P.
Mahabubnagar, I also filed requisition before the police,
P.W.21, of Raichur Rural with a request to provide two panch
witnesses and to visit the scene. Accordingly, P.W.21 provided
two panch witnesses P. Ws.9, and 19.

Accordingly with the help of P.Ws.9 and 19 along with P.Ws. 16

and 17 I prepared scene of offence panchanama and
photographed the scene of offence with the help of P.W.7. At the
scene of offence there was no dead body was found but some
hair, lower jaw embedded with teeth, 3-rip bones, one piece of
under wear two shirt buttons, one jean pant button, one
boulder, were found.

Alongwith panchas PW.16 and P.W.17 and myself went with

A.1. Al lead us to his village of Tipraspally village of

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 Utkurmandal of Mahabubnagar District, there A2 and A3 were
also present in the house. Thereafter Al went in side his house
and brought a cover containing Rs.3,50,000/- (Rupees Three
Lakhs fifty thousand only) cash and one cell phone. Al also
shown the Hero Honda motor bearing No. AP22-N-7927 Hero
Honda C.D. Delux, Black Colour as crime vehicle which was
used in the commission of offence. M.O.6 is cash of
Rs.3,50,000/- later it was deposited in FDR No.0919458,
26.05.2014 in the JMFC, Narayanpet, M.O.7 is cell phone
Samsung Company, MO.8 Hero Honda Motor Cycle br. No.AP
22 N 7927.”

29. On going through the aforesaid version of Investigating

Officer (PW-22), it is clear that the accused appellant (A1) was

produced before him by V. Sampath (LW-24) (IO in the ‘man

missing’ case). The said LW-24 was not examined by the

prosecution in this case. Pursuant to production of the accused,

the Investigating Officer (PW-22) proceeded to interrogate him and

allegedly recorded his confession/information followed by the so-

called recovery of the skeletal remains of the deceased.

30. From the aforesaid version of PW-22, it can clearly be

discerned that neither did the witness narrate the words spoken

by the accused regarding the place of concealment of the dead body

of K. Nagesh nor that the said fact/place was exclusively in his

knowledge and that he could get the same recovered. Rather, there

is a very startling fact which is evident from the aforesaid extract

of the Investigating Officer’s evidence inasmuch as the

Investigating Officer did not utter a single word that the accused

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also accompanied him and the panch witnesses for pointing out

and getting recovered the skeletal remains and the clothes

purported to be of the deceased.

31. Contrary thereto, on the aspect of recovery of Rs. 3,50,000/-

from the house of the accused, the Investigating Officer (PW-22)

made a pertinent deposition that he along with the panchas (PW-

16 and PW-17), accompanied by the accused went to the accused’s

house. The accused(A1) led them inside his house and brought out

a cover containing Rs. 3,50,000/-. Thus, so far as the aspect of

recovery of the currency notes is concerned, the Investigating

Officer categorically stated that it was the accused who led them

to the place of discovery, but so far as the crime scene is

concerned, there is not even a slightest utterance by the

Investigating Officer (PW-22) that the accused made the disclosure

or led them to the place where the skeletal remains were found.

32. In addition, thereto, we may also refer to the testimony of Dr.

Syed Irshad, Medical Officer (PW-15) who also admitted in his

cross-examination that police and other persons had shown him

the skeletal remains. The panch witness (PW-9 and PW-19) also

did not make a whisper regarding the accused, leading them to the

place from where the incriminating articles were recovered.

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33. Hence, we have no hesitation in holding that neither was the

disclosure allegedly suffered by the accused before the

Investigating Officer (PW-22) under Section 27 IEA proved as per

law nor did the prosecution establish that the discovery was made

on being pointed out by the accused. Since the very factum of the

discovery/recovery of incriminating skeletal remains was not

proved by proper evidence, the same cannot be linked to the

accused appellant.

34. The third link of circumstantial evidence is that the recovered

skeletal remains were purportedly matched with the blood of the

mother of the deceased (PW-1) by the process of DNA profiling.

However, as has been noted above, PW-1 did not utter a single

word that her blood sample was collected by the Investigating

Officer (PW-22) during the course of the investigation. Also, even

Dr. Syed Irshad, Medical Officer (PW-15) did not state that he

collected the blood samples of PW-1. Thus, the DNA profiling

report29 pales into insignificance and cannot be treated as an

incriminating circumstance against the accused.

35. As a consequence of the above discussion, we have no

hesitation in holding that none of the incriminating circumstances

29 Exhibit P-42

26
portrayed by the prosecution in its endeavour to bring home the

charges against the accused appellant were established by cogent

and clinching evidence, and therefore, the conviction of the

accused appellant as recorded by the trial Court and affirmed by

the High Court cannot be sustained.

36. Resultantly, the impugned judgments dated 13th October,

2016 and 20th March, 2019 are hereby quashed and set aside. The

accused appellant is acquitted of the charges. He is in custody and

shall be released forthwith, if not wanted in any other case.

37. The appeal is allowed accordingly.

38. Pending application(s), if any, shall stand disposed of.

………………….……….J.
(DIPANKAR DATTA)

………………………….J.
(SANDEEP MEHTA)

New Delhi;
December 03, 2024

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