2025 Supreme(HP) 1278

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, RAKESH KAINTHLA, JJ.
State of Himachal Pradesh - Appellant
Versus
Chander Sharma and others – Respondents
DSR No. 1 of 2018 with Cr. Appeal No. 387 of 2018
Decided On : 23-09-2025

In child murder via circumstantial evidence, conviction upheld on last seen (digital media), disclosures to bones/slab recoveries; death commuted to natural life as State failed to prove no reformation possibility per jail/psychiatric reports.

Headnote:(A) Indian Penal Code, 1860 - Sections 302, 201, 120B, 364A, 347, 506 - Kidnapping and murder of minor child - Circumstantial evidence case - Conviction under Sections 302 and 201 upheld against two accused where chain complete via last seen theory (photographs and video from flat occupied by accused showing child alive on date of incident), disclosure statements leading to recovery of child's bones from water tank (DNA matched parents), similar concrete slab recovered at instance of one accused matching tank slab, deletion of video data indicating destruction of evidence - No direct evidence of brutality or ransom motive (handwriting expert opinion contradictory and unreliable; call details imprecise for location; diatom test inconclusive); offences under Sections 364A and 347 not proved - Third accused acquitted as evidence (joint disclosure to bones, call contacts) insufficient alone for conviction (Para 180-186).

(B) Evidence Act, 1872 - Section 27 - Disclosure statements - Joint statements made sequentially admissible if leading to discovery (bones from tank); inadmissible parts (past transaction details without recovery) excluded - Recovery from public place valid if not ordinarily visible and accused knowledge shown (Paras 116-133).

(C) Evidence Act, 1872 - Section 106 - Last seen theory - Burden shifts to accused to explain death when victim last seen alive in their company (video/photos in flat); unexplained deletion strengthens inference of guilt (Paras 187-191).

(D) Criminal Procedure Code, 1973 - Section 235(2) - Sentencing - Death penalty - Rarest of rare test requires probability of no reformation (State to prove via psychiatric evaluation, socio-economic background, jail conduct); confirmed only if life option foreclosed - Here, satisfactory jail behaviour, no mental illness, family support indicate reform possible; death commuted to life imprisonment without remission (natural life) despite brutal crime against defenceless child (Paras 193-201).

Facts of the case:
Child (aged 4-5 years) went missing from courtyard of residential building during rain; no eyewitnesses. Investigation revealed ransom letters (authorship disputed), child's photographs/video (naked, crying) recovered from deleted data in memory card of mobile seized from one accused (gifted by co-accused); slippers (disputed recovery) from rented flat; disclosures led police to water tank where bones (human, child's age via dental exam, DNA match to parents), concrete slab tied with plastic found. Accused occupied flat (rent paid by one); call details showed proximity on incident date. Trial court convicted three accused under multiple sections, imposed death. High Court acquitted one, upheld conviction of two but commuted sentence.

Findings of Court:
Prosecution case proved beyond doubt against two accused via complete circumstantial chain excluding innocence hypothesis; third accused benefited from doubt. Child kept confined in flat till thrown in tank (alive or dead unclear). No proof of ransom execution or confinement for extortion. Accused capable of reformation per reports (normal behaviour, no illness, cooperative in jail).

Issues: (1) Sufficiency of circumstantial evidence (last seen, disclosures, recoveries, digital evidence) for conviction under murder/destruction provisions. (2) Reliability of handwriting/CDR/diatom tests. (3) Proof of conspiracy/ransom motive. (4) Confirmation of death sentence or commutation per rarest of rare/reformation test.

Ratio Decidendi: Circumstantial evidence must form unbroken chain consistent only with guilt (fully established facts, exclude alternatives); last seen shifts burden under Section 106. Disclosure limited to fact discovered (place/knowledge of bones/slab). Sentencing mandates liberal mitigating consideration (age, background, jail conduct, psychiatric eval); State proves irreformability - absent here, life (natural) suffices over death despite child victim brutality (Paras 30-34, 116, 180-186, 193-201).

Result: Appeal of third accused allowed (acquitted); appeals of two accused partly allowed (acquitted under Ss.364A/347; conviction under Ss.302/201/120B upheld; death reduced to life imprisonment without remission). Death reference answered in negative.

Table of Content
1. death reference and appeal introduction. (Para 1 , 2 , 3)
2. ransom demands and police actions. (Para 4 , 5 , 6 , 7 , 8 , 9)
3. narco tests and investigations. (Para 10 , 11 , 12 , 13)
4. arrests, searches, and recoveries. (Para 14 , 15 , 16 , 17 , 18)
5. prosecution case and witnesses. (Para 19 , 20 , 21)
6. defence arguments and submissions. (Para 22 , 25 , 26 , 27 , 28)
7. trial court findings and law. (Para 23 , 24 , 29)
8. circumstantial evidence principles. (Para 31 , 32 , 33 , 34)
9. residence and financial facts proved. (Para 36)

JUDGMENT :

Rakesh Kainthla, J.

The learned Sessions Judge, Shimla (learned Trial Court) has made the present death reference.

2. The appellants (accused before the learned Trial Court) have also filed a separate appeal. Since the death reference and the appeal have arisen from the common judgment and proceedings; hence, both matters are being taken up together for convenience. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

3. Briefly stated, the facts giving rise to the present appeal and death reference are that the police presented a challan against the accused for the commission of offences punishable under Sections 364-A, 347, 302, 201, 202, 506, and 120-B of the Indian Penal Code (in short 'IPC'). It was asserted that Yug (since deceased) was residing at Dwarkagarh with his father Vinod Gupta (PW70), mother Pinki Gupta (PW64) and two sisters, namely, Bhumi and Tisha. On 14.6.2014, a 'Jagran' was organised in Puran Mal Dharamshala, Cart Road, Shimla. Vinod Gupta left for 'Jagran' at about 6:30 pm. Pinki Gupta and her children were to go to 'Jagran' after some time. Pinki Gupta asked her daughters to search for Yug and bring him so that he could get ready. The daughters searched for Yug and told their mother that Yug could not be found anywhere. Pinki Gupta informed her husband that Yug was missing. Vinod Gupta returned to his home. He and Pinki Gupta (PW64) searched for Yug but could not find him. A report was made to the police, and the police recorded entry No. 69, dated 14.6.2014 (Ext.PW2/C). The police searched for Yug and advised his parents to search for him in the house of their relatives; however, Yug could not be found. Pinki Gupta (PW64) made a statement (Ext. PW64/A), which was sent to the police station where FIR (Ext.PW2/A) was registered. Nag Dev (PW9) conducted the initial investigation. He prepared the spot map (Ext. PW9/B) of the house of Vinod Gupta (PW70). He searched for Yug but could not find him.

4. On 27.6.2014, Vinod Gupta (PW70) went to Theog to search for his son Yug. Arvind Kumar (PW44), servant of Vinod Gupta, informed him that he had found a letter (Ext.PW5/A), in which a demand of Rs. 3.60 crore was made. It was directed in the letter that a white cloth should be put up on the shutter of the shop in case the demand was acceptable to Vinod Gupta. Kardhani (Ext.P1) and Amulet of Yug (Ext. P2) were attached to the letter. It was also mentioned in the letter that an audio chip containing the voice of Yug was annexed, but no such chip was found with the letter. Vinod Gupta informed Inspector Babu Ram (PW10) about the receipt of the letter, who advised him to do as directed in the letter. He (Inspector Babu Ram) discussed the matter with his Senior Officers. Police teams were constituted. The ransom note had directed Hari Om (PW45), the servant of Vinod Gupta, to take the ransom money to Ambala Railway Station. The amount was put in a briefcase, and Hari Om went to Ambala with the money. The police team followed Hari Om; however, no one came to collect the ransom amount. Hari Om returned with the money.

5. Inspector Babu Ram (PW10) conducted further investigation. He searched for Yug at various places. Vinod Gupta received another letter (Ext. PW5/B) in which it was mentioned that the amount of ransom was increased to Rs. 4.00 crore. Vinod Gupta was directed not to contact t

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