By Akinchan Aggarwal, Advocate
In Khalil Pasha & Others v. Abdul Rasheed & Another, 2026 INSC 754, decided on 28 July 2026, a Bench of Justices J.B. Pardiwala and K. Vinod Chandran restored a trial court’s acquittal in a 1988 murder case, holding that a recovery under Section 27 of the Indian Evidence Act, 1872 cannot by itself sustain a conviction. Where the only material pointing to the accused was a bloodstained weapon recovered at his instance — the blood merely shown to be human, not linked to the accused or the deceased — and the eyewitness testimony and dying declarations were unreliable, the chain of circumstances did not exclude the hypothesis of innocence. The judgment, authored by Justice K. Vinod Chandran, is also a compact restatement of the law on a victim’s remedy against acquittal and on the limits of appellate interference with an acquittal.
Citation and Bench
- Case: Khalil Pasha & Others v. Abdul Rasheed & Another
- Citation: 2026 INSC 754
- Court: Supreme Court of India, Criminal Appellate Jurisdiction
- Proceeding: Criminal Appeal @ SLP (Crl.) No. 1115 of 2023
- Bench: J.B. Pardiwala, J. and K. Vinod Chandran, J. (judgment authored by K. Vinod Chandran, J.)
- Date of judgment: 28 July 2026
Background: a case that travelled for nearly four decades
The incident dates back to 14 February 1988, when one Qavi was fatally assaulted. The prosecution alleged that six accused, acting as an unlawful assembly, attacked him following an earlier altercation; he was taken to hospital, where he succumbed to penetrating injuries to the lung and heart. The Trial Court, after a threadbare examination of the evidence, acquitted all the accused.
The deceased’s brother pursued a Criminal Revision Application before the Bombay High Court. The procedural history is itself instructive: the High Court had once set aside the acquittal without hearing the accused, an order the Supreme Court remitted because Section 401(2) Cr.P.C forbids exercising revisional power to the prejudice of an accused without an opportunity of hearing (here defeated because the accused’s advocate had died). On remand, the High Court remitted the matter to the Additional Sessions Judge to reconsider the eyewitness testimony together with the Section 27 recoveries and the chemical analysis report, while upholding the Trial Court’s rejection of the dying declarations. It was that order of remit that the accused challenged before the Supreme Court.
The victim’s remedy: appeal versus revision
A preliminary question was whether a revision (rather than an appeal) even lay at the instance of the victim, and whether it should have gone before a Division Bench. The Court clarified the position:
- When the revision was filed (1990), there was no victim’s right of appeal against an acquittal; Section 378 Cr.P.C permitted only a State appeal, with leave of the High Court.
- The proviso to Section 372 Cr.P.C, inserted by Act 5 of 2009, later conferred on the victim a statutory right of appeal against an order of acquittal, conviction for a lesser offence, or inadequate compensation. Relying on Mallikarjun Kodagali v. State of Karnataka (2019) 2 SCC 752, the Court reiterated that a victim need not seek special leave to exercise this right; and per Joseph Stephen v. Santhanasamy (2022) 13 SCC 115, no revision lies at a victim’s instance against an acquittal after the 2009 amendment where the appellate remedy is available.
- Under Section 401(5) Cr.P.C, where an appeal lay but the party wrongly took the revisional route on a bona fide but erroneous belief, the High Court may, in the interest of justice, treat the revision as an appeal. Because the victim had no appellate remedy in 1990, the revision was competent. The Court also noted that Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a verbatim reproduction of Section 401 Cr.P.C. The question of Single versus Division Bench was rendered academic.
Given that the incident was of 1988 and the accused had faced proceedings for decades, the Court chose to re-appreciate the evidence itself rather than prolong the litigation through a further remit.
Why the prosecution evidence collapsed
On re-appreciation, each strand of the prosecution case was found wanting:
- Motive. The alleged provocation (a slap following a wordy duel) did not withstand scrutiny; the version about the deceased refusing to whitewash a house was contradicted by evidence that he was in the apparel business.
- Eyewitnesses. PW3, PW4 and PW8 were chance witnesses. While a chance witness in a public place cannot be disbelieved for that reason alone, their accounts did not inspire confidence: each had a close acquaintance with the injured yet none took him to hospital or informed the police (which was 5–7 minutes away), they did not corroborate one another’s presence, and delays in recording Section 161 statements went unexplained.
- Dying declarations. The two doctors differed on the crucial question of consciousness. PW1, who first admitted the injured, said he was brought unconscious by an auto-rickshaw driver, unaccompanied, and never regained consciousness; PW11, who saw him nearly two hours later, claimed he was conscious. Given the grievous internal injuries to the lung and heart, the Court found it highly improbable that the deceased was conscious enough to name five assailants. The dying declarations — already disbelieved by the High Court — rested on a “very sketchy premise”.
- Scene of occurrence. Suspicion attached to the very scene: the accused-victim had suffered numerous bleeding injuries, yet the I.O. prepared only a scene mahazar and seized nothing from the spot — no tell-tale signs of the brutal attack.
The core holding: Section 27 recovery, standing alone, cannot convict
That left only the recovery. The weapon had been recovered at the instance of A4 under Section 27 of the Evidence Act, and chemical analysis showed human blood on it. But the prosecution did not confront the eyewitnesses with the weapon, and its description did not match the weapon produced in court. Crucially, the human blood was not shown to be that of the deceased (or the accused), so nothing connected the weapon to this crime.
The Court held that a Section 27 recovery, by itself, cannot lead to a conviction. In a case resting on circumstantial evidence, the proved circumstances must form a complete chain pointing only to the guilt of the accused and excluding every hypothesis of innocence. Here the homicidal death was proved, but the only evidence inculpating the accused — suspect eyewitness testimony — failed, and a bloodstained weapon without a proven link to the victim could not fill that gap.
Restraint in overturning an acquittal
Finally, the Court reaffirmed the settled principle governing appellate interference with an acquittal: an acquittal fortifies the presumption of innocence, and a court will not overturn it merely because another view is possible, so long as the view taken by the trial court is plausible. This, the Court stressed, is not mere caution but a tenet of criminal jurisprudence that secures to the accused the benefit of every reasonable doubt.
Acknowledging the anguish of the brother who had pursued the matter for decades — “the murder went unavenged” — the Court nonetheless held that courts cannot convict on assumptions where the prosecution evidence fails to satisfy the judicial mind of guilt. The appeal was allowed, the impugned order of remit set aside, and the Trial Court’s acquittal restored, with a direction that the accused be released forthwith if not required in any other case.
Key takeaways
- Section 27 recovery is corroborative, not conclusive. A recovery of a weapon — even bloodstained — cannot by itself sustain a conviction; the blood must be forensically linked to the victim or accused, and the recovery must fit into a complete chain of circumstances.
- Human blood is not enough. Absent grouping or other evidence tying the blood to the deceased, its mere presence proves little.
- Victim’s remedy post-2009 is appeal, not revision — but a revision competently filed before the 2009 amendment survives, and can be treated as an appeal under Section 401(5) Cr.P.C.
- An acquittal carries a reinforced presumption of innocence; a plausible acquittal will not be disturbed even if another view is possible.
Relevance for the AOR examination
For candidates preparing for the Supreme Court’s Advocate-on-Record examination, this decision is a useful study across two papers. On Practice and Procedure, it maps the interplay of Sections 372, 378, 401 and 386 Cr.P.C (and their BNSS equivalents, notably Section 442 BNSS), the victim’s appellate right, and the power to convert a revision into an appeal. On Leading Cases and evidence, it applies the classic rules on Section 27 recoveries, the appreciation of chance witnesses and dying declarations, the standard for circumstantial evidence, and the restraint on reversing acquittals — anchored in authorities such as Mallikarjun Kodagali and Joseph Stephen. The practical lesson for any criminal practitioner is durable: a recovery is a beginning, not an end — the prosecution must still forge the complete evidentiary chain.
Disclaimer: This article is for general information and academic discussion only and does not constitute legal advice. Readers should refer to the certified copy of the judgment and consult a qualified advocate for advice on any specific matter.
