A witness who never mentioned it that night: Supreme Court upholds acquittal in Himachal double murder

A Division Bench dismisses the State’s appeal, finding the chain of circumstances broken by an interested witness’s silence and a sighting that may have been impossible in the dark.

Two men were found dead by the side of a road in Himachal Pradesh on a June night in 2009, with head injuries and shattered pieces of wood near their bodies. A Sessions Court convicted two men of their murder and sentenced them to life imprisonment. The High Court acquitted them. On 21 September 2026, the Supreme Court declined to disturb that acquittal. In The State of Himachal Pradesh v. Varinder Verma @ Jatti, a Division Bench of Justice Sanjay Kumar and Justice Sanjeev Sachdeva dismissed the State’s appeal, holding that the circumstances relied on did not establish that in all human probability the act must have been committed by the accused.

The case the prosecution built

The first information report was lodged by PW-1, Kuldeep Verma, the son of Om Prakash, one of the two deceased. It was registered against unknown persons at 04.45 hours on 7 June 2009, with the occurrence stated to have taken place on the night of 6 June 2009 at about 10.30 pm.

The Court of Session convicted the respondents, Varinder Verma and Dev Raj, under Sections 302 read with 34 of the Indian Penal Code and sentenced them to imprisonment for life. It did so on a chain of circumstances. The first was that, according to PW-2, the two accused had noticed the deceased drinking liquor with others; and that later, after the two deceased had left that place, the accused, carrying dandas, came and asked PW-3 which way the two deceased had gone — shortly after which the bodies were found with homicidal injuries. A further circumstance concerned a recovery said to have been made at the instance of the accused.

The High Court of Himachal Pradesh at Shimla, by its judgment dated 6 April 2015, allowed the accused’s appeal and acquitted both. The State carried the matter to the Supreme Court in Criminal Appeal No. 67 of 2018.

What the scene did and did not show

The Supreme Court began with the character of the evidence. This was a case without an eyewitness to the murder. The occurrence was at night, near or by the side of a public road. Both deceased were found dead lying by the roadside with head injuries, and shattered pieces of wood lay near their bodies. Forensic evidence confirmed that both men had been drinking.

Those facts, the Bench held, left open an alternative that the prosecution had to exclude and did not. In such circumstances the possibility of there being a brawl could not be ruled out. Nor was there evidence bridging the gap between the deceased leaving the drinking place and being found dead: no one saw them in the company of the accused.

The two witnesses, examined closely

The conviction depended on PW-2 and PW-3, and the Court examined each.

PW-2 was the witness who spoke of noticing the accused at the place where the deceased were drinking. Whether he could spot the accused in the darkness, the Bench observed, is a big question. And on a point that mattered to the prosecution’s theory of the weapon, PW-2 did not state that the two accused were carrying a danda.

PW-3 was the witness said to have been asked by the accused which way the deceased had gone — the circumstance that placed the accused in pursuit. Two features undermined it. First, PW-3 is the bhanja, or nephew, of the deceased, and is therefore an interested witness. Second, and more tellingly, in cross-examination on 18 August 2010 he stated that he reached the spot at about midnight after receiving a call from Kuldeep, the son of the deceased, and saw the two bodies lying there. He admitted that at that time, even though PW-1 the informant was present, he did not tell PW-1 that the two accused carrying dandas had asked him which way the deceased had gone.

The Court drew the natural inference. Had PW-3 genuinely witnessed that incriminating circumstance, he would in all probability have informed the informant about it, being a close relative of both the deceased and PW-1, and aware of the enmity between the parties. Standing at the scene beside the victim’s son, a man who had just been asked by two armed men where those victims had gone would be unlikely to keep it to himself.

The recovery, and what it could carry

The prosecution’s chain did not rest on the two witnesses alone. A further circumstance relied on by the trial court concerned a recovery said to have been made at the instance of the accused. Recoveries of that kind can be powerful when they produce something only the offender would know the location of, and correspondingly weak when the object recovered is commonplace or the discovery adds nothing the investigation did not already have.

Here the difficulty was structural. The bodies lay beside a public road with shattered pieces of wood already near them, which meant that wooden articles were neither rare nor distinctive in the setting. With PW-2 not deposing that the accused carried a danda, and with the sighting itself doubtful in the dark, a recovery could not by itself supply the identification the other circumstances failed to establish. A recovery corroborates a chain; it cannot create one.

The High Court had also examined the condition of the clothes recovered in the case, and its observations on that material formed part of its conclusion that the accused were entitled to acquittal. The Supreme Court saw no reason to take a different view of evidence the acquitting court had already weighed.

The standard in a circumstantial case

The governing test is not whether the accused may have done it, but whether in all human probability the act must have been committed by them. That formulation requires the circumstances to be not merely consistent with guilt but inconsistent with any other rational explanation.

Here two rational explanations survived. The injuries, the wood fragments, the roadside location, the hour and the drinking left a brawl open as a possibility. And the human chain that would have connected the accused to the deceased after they left rested on a sighting in darkness by one witness who did not mention a weapon, and on an interested witness who said nothing about the encounter when it would have been natural to speak. An appellate court dealing with an appeal against acquittal begins, in any event, from a position of restraint: where the view taken by the acquitting court is a reasonable one on the evidence, it is not to be displaced merely because another view is possible.

An appeal against an acquittal carries an additional weight that shapes how these questions are answered. The accused begin with the presumption of innocence, and an acquittal reinforces it. Where the acquitting court has taken a view the evidence can reasonably bear, an appellate court does not substitute its own reading merely because a different conclusion was also available on the same material. The State’s appeal therefore had to do more than suggest the circumstances were capable of supporting a conviction; it had to show that the High Court’s view was one no reasonable court could take.

On this record it could not. The two evidentiary planks — a night-time sighting whose feasibility was doubtful, and an encounter reported by an interested relative who said nothing about it while standing beside the victim’s son at the scene — are precisely the kind of material on which two views are possible. Once a brawl remained an open explanation, consistent with the drinking, the roadside location and the wood fragments, the chain no longer pointed to the accused to the exclusion of every other hypothesis.

There is also a practical dimension the judgment illustrates. The FIR was lodged at 04.45 hours against unknown persons, some six hours after the stated time of occurrence. A case that begins against unknown persons and later narrows to named accused depends heavily on how and when the identifying circumstances entered the record — which is precisely why PW-3’s silence at the scene, in the presence of the informant, carried the weight the Court gave it.

The result leaves the deaths of two men unexplained in law. That is an uncomfortable outcome, and the judgment does not disguise it. But the standard of proof in a circumstantial case is not relaxed because the crime was grave or because no alternative offender has been identified. Where the prosecution cannot exclude a rational explanation consistent with innocence, an acquittal follows, and an appellate court asked to reverse one begins from the premise that the accused are presumed innocent twice over.

The judgment is a reminder of how little survives when the early record is thin. There was no eyewitness, no one who saw the deceased with the accused, no weapon spoken to by the witness who claimed to see the accused, and a delay of some six hours before the FIR was registered against unknown persons. A prosecution assembled from those materials asks a court to bridge each gap by inference, and the more gaps there are, the less any single inference can carry.

For the State, the appeal turned on two witnesses whose evidence the High Court had already found wanting for reasons that were neither perverse nor unsupported by the record. That is the threshold an appeal against acquittal has to cross, and it was not crossed here.

Order

The appeal was dismissed in terms of the signed reportable order placed on the file, and pending applications were disposed of. The acquittal of Varinder Verma and Dev Raj stands.