2009(6 )  SCR 4    

STATE OF UTTAR PRADESH v.

SHYAM BEHARI & ANR. (Criminal Appeal No. 501 of 2004)

MARCH 31, 2009 [DR. ARIJIT PASAYAT, D.K. JAIN AND DR. MUKUNDAKAM  

SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order of acquittal  

recorded by a Division Bench of the Allahabad High Court. The respondents faced  

trial  for  alleged  commission  of  offence  punishable  under  Section  302  read  with  

Section 34 and 201 read with Section 34 of the Indian Penal Code, 1860 (in short  

'IPC').  Learned  IVth  Additional  District  and  Sessions  Judge,  Kanpur  found  the  

respondents guilty  and sentenced them to undergo imprisonment for life and two  

years rigorous imprisonment respectively for the aforesaid two offences. In appeal,  

the High Court reversed the judgment of conviction and directed acquittal.  

2. In support of the appeal learned counsel for the appellant-State submitted  

that the circumstances which were highlighted by the trial court to record conviction  

have been without any basis reversed by the High Court. Learned counsel for the  

respondent supported the judgment of acquittal.

3. The prosecution version rested on circumstantial evidence. The law regarding  

circumstantial evidence is well settled. When a case rests upon the circumstantial

evidence, such evidence must satisfy three tests: (1) the circumstances from which  

an inference of guilt is sought to be drawn must be cogently and firmly established:  

(2) those circumstances should be of a definite tendency unerringly pointing towards  

guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain  

so  complete  that  there  is  no  escape  from the  conclusion  that  within  all  human  

probabilities the crime was committed by the accused and none else.

4. The circumstantial evidence in order to sustain conviction must be complete  

and incapable of explanation of any order hypothesis than that of the guilt  of the  

accused. The circumstantial evidence should not only be consistent with the guilt of  

the  accused  but  should  be  inconsistent  with  his  innocence.  (See  v.  State  of   

Maharashtra, AIR 1982 SC, 1157)

In his case, the prosecution relied on following circumstances:

(1) The deceased Veer Singh Gautam was posted as Supervisor of Kray Vikray  

Samiti,  Reona at  the time of  occurrence and the accused Udai  Narain  was  

Adhyaksha/ Supervisor of that Society.

(2) Veer Singh Gautam was on friendly terms with accused Udai Narain and  

Shyam Behari and was doing grain business in their partnership.

(3) The deceased Veer Singh Gautam went to his house on the occasion of  

Raksha  Bandhan  (3.8.1979)  and  brought  Rs.  25,000/-  for  investing  in  the  

aforesaid business.

(4) Accused Shyam Behari and Udai Narain had gone to the house of deceased  

in village Hardauli  and deceased Veer Singh Gautam asked them to render

account of levy and asked them to either give money in cash or grain to make  

up the account.

(5) Veer Singh Gautam after returning from his house left Reona for Daheli.

(6) Veer Singh Gautam left Rathgaaon on 13.8.1979 on a truck going towards  

Nauranga and got down from that truck when he reached near the culvert of  

village Daheli.

(7) The deceased was seen going iun the company of accused Shyam Behari  

and Udai Narain towards their house on the outskirts of village Daheli.

(8)  (Deceased)  Veer  Singh  Gautam was  last  seen  at  about  10.30  P.M.  on  

13.8.1979 in the company of all the four accused at the door of the house of  

accused  Shyam  Behari  and  Udai  Narain  and  that  all  of  them including  the  

accused went up stairs.

(9) Shrieks were heard in the night rom the upper story of the house of accused  

Udai Narain and Shyam Behari.  

(10) All the four accused were seen moving towards village Daheli at about 2  

1.m. in the night of 13/14-8-1979 and accused Munni Lal was carrying a gunny  

bag on his head and in enquiry by Ram Asrey (PW3) he told that they were  

carrying manure for their field.

(11) The recovery of  the dead body of (deceased) Veer Singh Gautam was  

made on 23.8.1979 on the pointing out of appellant Shyam Behari.

5. The trial  court held that the circumstances 1,3,8 and 11 were proved and  

presented  a  complete  chain  of  circumstances  which  established  the  guilt  of  the  

accused.  The  High  Court  found  that  circumstances  8  and  11  have  not  been

established by cogent evidence. So far as the alleged last scene is concerned, the  

High  Court  found  that  the  circumstances  of  last  scene  together  do  not  by  itself  

necessarily lead to the inference that it was the accused who committed the crime.  

There must be something more establishing connectivity between the accused and  

the crime. There must be cases where on account of close proximity of place and  

time between the event of accused having been last seen with the accused and the  

factum of death a rational mind may be persuaded to reach an irresistible conclusion  

that either the accused should explain how and in what circumstances the victim  

suffered the death or should own the liability for the homicide.

6. This Court in Bodhraj @ Bodha and others v. State of Jammu and Kashmir,   

2002 (8) SCC 45 held as follows:

“The last seen theory comes into play where the time-gap between the  

point of time when the accused and the deceased were last seen alive and  

when the deceased is found dead is so small that possibility of any person other  

than the accused being the author of the crime becomes impossible. It would be  

difficult to some cases, to positively establish that the deceased was last seen  

with  the  accused  when  there  is  a  long  gap  and  possibility  of  other  person  

coming in  between exists.  in  the absence of  any other  positive  evidence to  

conclude that the accused and the deceased were last seen together, it would  

be hazardous to come to a conclusion of guilt in those cases”

7. The High Court in the instant case found that evidence of PW4 does not  

inspire confidence. If he knew around 10 A.M. that no fertiliser was available, there  

was  no  reason  as  to  why  he  would  remain  at  Moosa  Nagar  up  to  9-10  A.M.  

Additionally, if found that there was no probable occasion for the witness to go to

Moosa Nagar for several days when he knew that fertiliser was either not available  

or he had purchased fertiliser from the dealer at Rathgaon. So far as the alleged  

recovery of weapon is concerned, the High Court noted that PW12 who interrogated  

accused had not recorded his disclosure statement. PW7 who is supposed to have  

accompanied I.O. and the accused was found to be not believeable.  

8. Above being the situation, the impugned judgment of the High Court does not  

suffer  from any deficiency to warrant  interference.  The appeal  is  dismissed.  The  

bailable warrants executed pursuant to order dated 19.4.2004 stand discharged.