Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar has held that while the prosecution carries the primary burden of proving guilt, a court may draw an adverse inference under the Evidence Act where an accused fails to explain facts peculiarly within his knowledge once foundational circumstances are established. The Court made this observation while sustaining the conviction of a man accused of kidnapping and killing a minor girl child, simultaneously commuting the trial court's death sentence to imprisonment for life.

The appellant was convicted by the Sessions Judge, Bhaderwah, for offences under Sections 302 and 363 RPC. According to the prosecution, on 03.07.2013, the minor daughter of the complainant went to a nearby tourism canteen and did not return home. The complainant was informed by the canteen shopkeeper that the appellant had bought eatables for the child and taken her along. A written report alleging kidnapping was lodged on 04.07.2013. On 13.07.2013, a decomposed body was recovered near Himant Kach Nallah and identified by the child’s grandfather.

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After recovery, the appellant was arrested and a charge-sheet under Sections 363/302 RPC was filed. The prosecution alleged that he had enticed the child, taken her to a secluded place, sexually assaulted her, strangulated her, and disposed of the body in bushes. The defence denied the allegations, pleaded false implication due to a land dispute, and questioned the “last seen” theory, delay in examining the witness, discrepancies about recovery, absence of DNA and fingerprint evidence, and the medical opinion. The prosecution relied on the evidence of the parents, grandfather, the canteen shopkeeper as last seen witness, and the medical officer.

The Court stated the governing standard for a case resting on circumstantial evidence and the “last seen together” theory. It recorded, “It is trite that where the prosecution case rests on circumstantial evidence and the theory of ‘last seen together’, the chain of circumstances must be so complete as to unerringly point towards the guilt of the accused and exclude every hypothesis consistent with innocence.” It then referred to the principles in Sharad Birdhichand Sarda and noted that the circumstances must form a complete chain.

While assessing the evidence of the canteen shopkeeper, the Court stated, “The testimony of PW-Mohd. Sharif assumes pivotal significance.” It further recorded, “His statement under Section 164 Cr.P.C. lends further assurance to his testimony.” On the defence argument regarding delay in his examination, the Court stated, “The contention of the defence that the witness was examined belatedly does not, by itself, render his evidence unreliable, particularly when the delay stands explained and finds support from the complaint (EXTP-1) lodged promptly by the father.”

On the medical and recovery evidence, the Court stated, “The medical evidence clearly establishes that the cause of death was manual strangulation.” It also recorded, “While the Investigating Agency failed to obtain DNA comparison or properly match hair samples recovered from the cave, such lapses, as consistently held by the Hon'ble Supreme Court, do not ipso facto demolish the prosecution case when otherwise reliable evidence is available.”

The Court then considered whether the “last seen” circumstance stood alone. It recorded, “In the present case, the ‘last seen’ circumstance does not stand in isolation.” It listed the appellant’s unexplained absence, failure to join the search, recovery of the body from the direction in which he was seen going, and medical evidence within the relevant time frame. It further stated, “The appellant’s plea of false implication due to land dispute remains a bald assertion unsupported by any defence evidence.” On Section 106 of the Evidence Act, the Court recorded, “While Section 106 of the Act does not relieve the prosecution of its primary burden, it permits the Court to draw an adverse inference where the accused fails to explain facts peculiarly within his knowledge, once the prosecution has established foundational facts.”

On the murder charge, the Court stated, “However, failure to establish sexual assault does not detract from the charge of murder.” It added, “The circumstances on record satisfy that requirement beyond reasonable doubt.” The Court finally recorded, “When these circumstances are cumulatively assessed in light of the principles laid down in Sharad Birdhichand Sarda (supra) and subsequent authorities, they form a chain so complete that it leaves no reasonable hypothesis consistent with innocence.” It concluded, “Accordingly, the theory of last seen together, reinforced by conduct evidence, recovery, medical opinion, and failure of the appellant to explain incriminating circumstances within his special knowledge, stands proved beyond reasonable doubt, satisfying the stringent tests governing conviction based on circumstantial evidence.”

On sentence, the Court recorded, “The governing principle is that death penalty is to be imposed only in the ‘rarest of rare’ cases, when the alternative option of life imprisonment is unquestionably foreclosed.” It then stated, “The ends of justice would be served by imposing imprisonment for life.”

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The Court directed: “Accordingly, while the conviction of the appellant under Sections 302 and 363 RPC is maintained, the sentence of death awarded by the trial Court, is commuted to imprisonment for life. The appellant shall undergo imprisonment for life for the offence under Section 302 RPC, along with the sentence awarded for the offence under Section 363 RPC, as directed by the trial Court.”

“The reference for confirmation of death sentence is answered in the negative to the extent indicated above. The appeal is partly allowed to the extent of modification of sentence. Record of the trial Court be sent back alongwith copy of this judgment with direction to the trial Court for further compliance.”

Advocates Representing the Parties:

For the Petitioners: Mr. Meharban Singh, Advocate

For the Respondents: Mr. Raman Sharma, AAG (Sr. Advocate) with Ms. Jagmeet Kour, Advocate

Case Title: Tirath Singh S/o Sh. Swami Raj V/s State of Jammu & Kashmir

Neutral Citation: 2026:JKLHC-JMU:577

Case Number: CRA No. 06/2018 c/w Conf. No. 10/2015

Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar