CRA-D-616-DB-2014 -1- 374 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D-616-DB-2014 Date of Decision: 28.07.2026 Kapil Dev ..... Appellant Versus State of Punjab .......Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ HON’BLE MR. JUSTICE DEEPAK MANCHANDA Present: Ms. Ruchi Sekhri, Legal Aid Counsel, for the appellant. Mr. Ekompal Sagoo, AAG, Punjab. Rajesh Bhardwaj, J. 1. Present appeal emanates from the judgment of conviction dated 08.12.2011 and order of sentence dated 09.12.2011 passed by learned Sessions Judge, Ludhiana. 2. Succinctly, the facts of the case are that the FIR was registered on the statement of the complainant, Jahangir, who alleged that he had married Rojina about five years ago and they had a four-year-old daughter, ‘S’. Both, he and his wife were employed at Garg Furnace Factory and had engaged Shobha to look after their daughter. On the day of the occurrence, after his wife returned from work, Shobha was supervising ‘S’ and ‘S’ was playing alongwith other children in the courtyard and thereafter, Shobha went to take a bath. When the complainant returned, he found that while other children had gone home, ‘S’ was missing. Despite a search, the complainant could not trace her. Lateron in the evening, Raju Sheikh (PW- 4) informed the complainant that he had seen accused, Kapil Dev (appellant), taking ‘S’ along the canal road at about 7:00 p.m. while she was crying. Suspecting that the accused had abducted his daughter with the SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -2- intention of causing harm to her, the complainant approached the police, on the basis of whose statement the present FIR got registered. The investigation commenced. During the investigation, Gulab Singh (PW-1) produced accused, Kapil Dev, before the police and disclosed that the accused had made an extra-judicial confession before him. The accused was arrested and, during interrogation, he suffered a disclosure statement admitting that after committing rape upon ‘S’, he had murdered her and concealed her body in bushes on a vacant plot near Sua Road. Pursuant to the disclosure statement, the accused got the corpus of ‘S’ recovered, which was taken into possession. Relevant samples were taken and sent to FSL. Inquest report on the body of ‘S’ (Ex.PR) was prepared and the same was sent for autopsy. Medical examination of the accused was also conducted. On completion of the investigation, challan was presented against the accused, namely, Kapil Dev. On framing of charges, the trial commenced. To substantiate its case, the prosecution examined ten witnesses i.e. Gulab Singh (PW-1), Rajinder Pal Singh Constable (PW-2), Santosh Kumar Verma (PW-3), Raju Sheikh (PW-4), Dr. Pardeep Kumar (PW-5), Ram Saran Head Constable as (PW-6), Balbir Singh Head Constable (PW-7), Ramji Sub Inspector (PW-8), Malkiat Singh Head Constable (PW-9) and Gurvir Singh Sub Inspector (PW-10). Besides this, the prosecution also produced the documentary evidence. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. On the conclusion of the trial, learned trial Court convicted the accused for committing rape and murder of victim ‘S’ vide order dated SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -3- 08.12.2011 and sentenced him to undergo life imprisonment for the offence under Section 302 and 376 Sub Section 2(f) IPC vide order dated 09.12.2011. Aggrieved by the same, appellant, namely, Kapil Dev filed the present appeal. Contentions raised by learned legal aid counsel for the appellant 3. It has been vehemently contended by learned legal aid counsel for the appellant that that the judgment of conviction and order of sentence passed by learned trial Court are contrary to the evidence on record and settled principles for appreciation of circumstantial evidence. It is contended that the case rests entirely on circumstantial evidence as there is no eyewitness to either the alleged rape or the murder. It is settled law that in a case based on circumstantial evidence, every circumstance relied upon by the prosecution must be fully established and the chain of circumstances must be so complete. However, in the present case, the prosecution has failed to establish its case beyond the reasonable doubts as chain of events was not fully proved. Moreover, the identity of the appellant was no where established by the prosecution beyond the reasonable ground. In the present case, there are important gaps in the evidence. She has further contended that the prosecution heavily relied upon the evidence of PW-4 Raju Sheikh regarding the "last seen" circumstance. However, the testimony of PW-4 merely shows that he allegedly saw the appellant carrying the child at about 7.00 p.m. while she was weeping. Such evidence by itself is insufficient to record conviction of the appellant unless the prosecution establishes the exact time of death and rules out the possibility of intervention by any other SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -4- person. The "last seen theory" is only a weak piece of evidence unless corroborated by other cogent circumstances. It is also contended that the prosecution has placed undue reliance upon the alleged extra-judicial confession made before Gulab Singh (PW-1). Extra-judicial confession is inherently a weak type of evidence and requires strict scrutiny. No plausible reason has been assigned as to why the appellant would repose confidence in PW-1 or voluntarily confess such a heinous crime before him. The alleged confession is not corroborated by any independent witness and, therefore, cannot safely form the sole basis of conviction. She has further argued that the alleged disclosure statement leading to recovery of the dead body deserves to be viewed with caution. The prosecution has not established that the place of recovery was exclusively within the knowledge of the appellant. Since the body was recovered from an open vacant plot covered with bushes, the possibility of access by others cannot be ruled out. Consequently, the recovery does not conclusively connect the appellant with the offence. She contends that there are material omissions in the prosecution case. The complainant, who was the author of the FIR and the first informant, was not examined during trial. Non-examination of such a material witness has caused serious prejudice to the defence and an adverse inference ought to be drawn against the prosecution. Accordingly, it is prayed that the prosecution having failed to prove its case beyond reasonable doubt, the appellant is entitled to the benefit of doubt and consequent acquittal. SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -5- Contentions raised by learned State Counsel 4. Learned State counsel has vehemently opposed the submissions made by learned counsel for the appellant. It is argued that the prosecution successfully proved that the deceased was last seen alive in the company of the appellant. PW-4 Raju Sheikh categorically deposed that he had seen the appellant carrying four-year-old ‘S’ on the canal road at about 7.00 p.m. and that the child was crying. His testimony remained consistent and nothing material could be elicited during cross-examination to discredit him. He further submits that the extra-judicial confession made by the appellant before PW-1 Gulab Singh inspires complete confidence. It is argued that the disclosure statement made by the appellant while in police custody resulted in the recovery of the dead body from the exact place disclosed by him. He further submits that the medical evidence fully supports the ocular and circumstantial evidence. The post-mortem examination established that the deceased had suffered sexual assault, the hymen was torn, spermatozoa were detected on the vaginal swabs, and the cause of death was asphyxia due to smothering, strangulation and throttling. The injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. Regarding the non-examination of the complainant, learned State counsel submits that no adverse inference can be drawn because the complainant was not an eyewitness to either the rape or the murder. His statement merely set the criminal law into motion. It is further submitted that the prosecution has established a complete chain of circumstances. He, thus, prays that the prosecution proved the charges beyond reasonable doubt and the conviction SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -6- and sentence recorded by learned trial Court deserve to be affirmed. Analysis 5. Heard learned counsel for the parties and perused the record with their able assistance. The prosecution case rests on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, every incriminating circumstance must be proved beyond reasonable doubt and all the circumstances, taken cumulatively, should form a complete chain leading only to the hypothesis of the guilt of the accused. In the case in hand, the prosecution successfully established each link in the chain of circumstances. PW-4 Raju Sheikh, who categorically deposed that on 30.08.2007 at about 7:00 p.m., he had seen the appellant taking four year old ‘S’ in his lap on Sua Road and that the child was weeping. He further deposed that after learning about the disappearance of the child, he informed the complainant as well as the police. Learned trial Court has rightly held that the testimony of PW-4 inspires confidence and rightly concluded that no motive could be attributed to PW-4 for falsely deposing against the appellant. Equally important circumstance is the extra-judicial confession made by the appellant before PW-1 Gulab Singh. PW-1 deposed that the appellant, who was already known to him, met him in a perplexed condition and voluntarily confessed that he had taken ‘S’ to a vacant plot, committed rape upon her and thereafter murdered her. The witness further deposed that the appellant requested him to produce him before the police, whereupon he took the appellant to the police station and produced him before the Investigating Officer. Learned trial Court noticed that PW-1 and SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -7- the appellant were acquainted with each other. Immediately after being produced before the police, the appellant suffered a disclosure statement stating that he had concealed the dead body of the deceased in bushes near Sua Road and thereafter, got the dead body recovered. The recovery was witnessed by PW-1 and duly proved by the Investigating Officer. The medical evidence completely supports the prosecution version. PW-5 Dr. Pardeep Kumar, a member of the Board conducting the post-mortem examination, found following multiple ante-mortem injuries on the body of the deceased:- “1. Ligature mark “9.5 × ½” present horizontally over the thyroid cartilage encircling horizontally all around. On cut section:- Underneath subcutaneous tissues, muscles were lacerated and ecchymosis was present, hyoid bone was fractured. 2. Bluish contusion 2” × 2” was present on the left submandibular region. On cut Section:- Underneath subcutaneous tissues, muscles were lacerated and echhymosis was present. 3. Multiple abrasions with bluish contusions were present in an area 4.25” × 3.25” near and around the right nipple. 4. Multiple abrasions with bluish contusions was present in an area 3.25” × 3.25” on right thigh in its lower third. (v) Multiple abraded bluish contusions two on both the sides of nose measuring ¼” and ¼” and two below lower lip measuring ¼” and ¼”. It was also found that hymen was found torn. The Chemical Examiner detected spermatozoa on the vaginal swabs. The Board opined that death had occurred due to asphyxia resulting from smothering, strangulation and throttling and that all injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. Medical evidence SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -8- is corroborative in nature and, in the facts of the present case, it substantially supports the prosecution version. Learned trial Court recorded that the complainant could not be examined as he was a native of West Bengal and that his non-examination did not prejudice the prosecution because he merely set the criminal law into motion. 6. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, while discussing the law laid down in the case of Hanumant vs. State of Madhya Pradesh, 1975 AIR 1083 held as under: “Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. (1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant’s case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency 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 far 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." SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -9- “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 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 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. SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -10- 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 7. In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, (SC) 2022 AIR Supreme Court 5273, Hon’ble Supreme Court ohserved as under:- “Principles Of Law Relating To Appreciation Of Circumstantial Evidence 45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered: a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; & b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred). 46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: 1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -11- 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. “ ……. 49. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J.W. Johnson and Co. 1872, it has been explained as under: "In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions." The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word" presumption," ex vi termini, imports an inference from facts; and the adjunct "presumptive," as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -12- incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum." 50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.” 8. Similar view has been taken in State of U.P. v. Satish, (2005) 3 SCC 114; Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp. (2) SCC 706; Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Gambhir v. State of Maharashtra, (1982) 2 SCC 351; Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343; and State of Goa vs. Sanjay Thakra, 2007(2) RCR (Criminal) 458. 9. The prosecution case primarily rests upon the evidence of PW- 1, PW-4, the medical expert (PW-5) and the Investigating Officer. This reasoning is legally sound and calls for no interference. The appreciation of evidence by learned Sessions Judge is thorough, logical and based on settled SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document CRA-D-616-DB-2014 -13- principles of criminal jurisprudence. The findings recorded are neither perverse nor contrary to the evidence on record. Accordingly, the conviction of the appellant under Sections 302 and 376(2)(f) IPC, along with the sentence imposed by learned trial Court, is fully justified and calls for no interference. Resultantly, the present appeal is dismissed. The judgment of conviction dated 08.12.2011 and the order of sentence dated 09.12.2011 passed by the learned Sessions Judge, Ludhiana are affirmed. (RAJESH BHARDWAJ) JUDGE (DEEPAK MANCHANDA) JUDGE 28.07.2026 sharmila Whether Speaking/Reasoned : Yes/No Whether Reportable : Yes/No SHARMILA DEVI 2026.08.01 11:52 I attest to the accuracy and integrity of this document