Although the prosecution carries the primary burden of proving the guilt of the accused, courts are empowered to draw an adverse inference under Section 106 of the Indian Evidence
Shivaji Rathore 10 March 2026
The High Court of Jammu & Kashmir and Ladakh has reiterated that although the prosecution carries the primary burden of proving the guilt of the accused, courts are empowered to draw an adverse inference under Section 106 of the Indian Evidence Act where the accused fails to explain facts that are especially within his knowledge once the prosecution establishes foundational circumstances.
The Court made this observation while upholding the conviction of a man for kidnapping and murdering a minor girl, but commuting the death sentence awarded by the trial court to life imprisonment.
The judgment was delivered by a Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar while deciding a criminal appeal challenging the conviction of the appellant under Sections 302 (murder) and 363 (kidnapping) of the Ranbir Penal Code (RPC). The conviction had earlier been recorded by the Sessions Judge, Bhaderwah, who had awarded the death penalty for the murder of a minor girl.
Background of the Case
The case originated from the disappearance of a minor girl in 2013. According to the prosecution, the child went missing and despite search efforts, her whereabouts could not be traced immediately. Nearly ten days after her disappearance, the decomposed body of the girl was recovered from an isolated cave near a Nallah. Due to decomposition, the body was identified by the family members on the basis of the clothes worn by the deceased. Medical examination indicated that the cause of death was manual strangulation, confirming that the death was homicidal in nature. After investigation and trial, the Sessions Judge, Bhaderwah convicted the accused for kidnapping and murder under Sections 302 and 363 RPC and imposed the death sentence, which was subsequently challenged before the High Court.
Defence Arguments Before the High Court
Appearing for the appellant, Advocate Meharban Singh argued that the conviction was unsustainable in law as the prosecution case was entirely based on circumstantial evidence and suffered from serious inconsistencies.
The defence raised several key arguments:
The prosecution witnesses were close relatives of the deceased, raising concerns regarding impartiality. No eyewitness had seen the accused committing the crime. Due to decomposition, identification of the body was based only on clothing, and no DNA test was conducted to scientifically confirm identity.
The “last seen together” theory was unreliable, as the statement of the alleged witness was recorded after a delay of twenty-two days. Other persons who were present at the canteen where the child was allegedly last seen were not examined. There was a gap of about ten to eleven days between the last-seen circumstance and the recovery of the body, leaving room for the possibility that a third person might have committed the offence.
High Court on Circumstantial Evidence
After examining the evidence on record and hearing arguments from both sides, the High Court reiterated the settled principles governing cases based solely on circumstantial evidence.
The Court referred to the landmark Supreme Court judgment in Sharad Birdhichand Sarda v. State of Maharashtra, which laid down the “five golden principles” governing convictions based on circumstantial evidence.
The Court observed:
“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.”
The Bench emphasized that mere suspicion, however strong, cannot take the place of proof, and every circumstance relied upon by the prosecution must be firmly established and must form a complete chain pointing only towards the guilt of the accused.
Reliability of the “Last Seen” Evidence
The defence had argued that the delay of twenty-two days in recording the statement of the last-seen witness made the testimony unreliable. However, the High Court rejected this contention and held that delay in recording statements does not automatically render the evidence unreliable, particularly when the delay is satisfactorily explained.
The Court noted that the father of the deceased had mentioned the last-seen information in the complaint lodged soon after the incident, which lent credibility to the witness’s statement.
The Bench also observed that failure to examine every person present at the canteen did not weaken the prosecution case, especially when the testimony of the witness examined by the prosecution appeared credible and trustworthy.
The Court further noted that: The body was recovered from an isolated cave, approximately half an hour’s walking distance from the place where the child was last seen with the accused.
Medical evidence confirmed homicidal death due to manual strangulation, consistent with the timeline of disappearance.
While acknowledging certain lapses in the investigation, such as the failure to conduct DNA testing or properly match hair samples, the Court held that such deficiencies alone cannot demolish an otherwise reliable prosecution case. Section 106 Evidence Act and Conduct of the Accused Another significant factor considered by the Court was the conduct of the accused after the disappearance of the child.
The Bench noted that: The brothers of the accused actively participated in search operations for the missing child.
However, the accused himself remained absent from the village during the crucial period. The accused failed to provide any explanation regarding his whereabouts during this time.
In this context, the Court made an important observation regarding Section 106 of the Indian Evidence Act, which deals with facts especially within the knowledge of a person.
The Court held:
“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.”
The Bench concluded that the unexplained absence of the accused and his failure to account for incriminating circumstances strengthened the prosecution’s case.
Death Sentence Commuted to Life Imprisonment
Although the High Court upheld the conviction of the accused, it reconsidered the appropriateness of the death sentence imposed by the trial court.
The Court noted several mitigating factors:
The case was based entirely on circumstantial evidence.
There was no direct eyewitness account of the murder.
Due to decomposition, sexual assault could not be conclusively established.
There was no material indicating previous criminal antecedents of the accused.
Considering these factors, the Bench held that the case did not fall within the “rarest of rare” category, which is the constitutional standard required for imposing capital punishment.
Accordingly, the High Court commuted the death sentence to life imprisonment while affirming the conviction under Sections 302 and 363 RPC.
Case Title: Tirath Singh vs State of J&K
CRA NO. 06/2018
