REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 308 OF 2001

Venkatesan  ….Appellant

Versus

State of Tamil Nadu ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Appellant,  who  was  described  as  A2  in  Sessions

Case  No.  117  of  1990,  had  filed  an  appeal  to

challenge  his  conviction  for  offence  punishable

under Section 302 of the Indian Penal Code, 1860

(in short the ‘IPC’)  before the Madras High Court.

Judgment  dated  3.7.2000 in  Criminal  Appeal  No.

741 of 1990.  The appeal was dismissed.  Appellant

faced  trial  alongwith  one  Doraiswamy  who  has

described as A1.  It was alleged that both of them

were  responsible  for  murder  of   Rajendran

(hereinafter  referred  to  as  the  ‘deceased’)  on

19.4.1988 at about 10 PM.  Trial court acquitted A1

while holding appellant guilty of offence punishable

under  Section  302  IPC.   Background  facts  as

projected in a nutshell are as follows:

PW.2 is the father and PW.3 is the younger brother of the

deceased Rajendran. They were residents of Valluvampakkam.

The  accused  were  also  residing  in  the  same  village.   The

deceased was having illicit relationship with the wife of A1 and

PW.2 took his son to task and advised him not to have any

relationship  with the wife  of  A1.   It  is  also  the  case of  the

prosecution that the deceased tried to molest PW.5 the wife of

A2. This is said to be the motive for the occurrence.

On 19.4.1988, PW.2 left Vallugampakkam for Madras to

see  his  daughter  and  when  returned  at  8.00  p.m.  on

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21.4.1988 to the house he found his son Rajendran missing

from the house.  He questioned his other son PW.3 who then

told  him  that  the  deceased  left  in  the  company  of  A2  for

Ranipet and did not return.  PW.2 thereafter advised PW.3 to

go and search for the deceased at Ranipet.  Accordingly, PW.3

went to Ranipet and searched for the deceased, but could not

trace him.

Meanwhile,  on 22.4.1988 at 7.0 a.m. PW.1, the Village

Administrative Officer of Bagaveli, was informed by his menial

that a body is lying in a field.   PW.1 went to the spot  and

found the body.  Around the neck of the body, a torn lungi,

M.O.5, was seen tied.  PW.1 thereafter went to Kaveripakkam

Police Station where he gave a complaint to PW.14, the Sub-

Inspector of Police, at 11.45 a.m. and the same stands marked

as  Ex.P1  in  this  case.   PW.14  on  the  basis  of  Ex.P-1,

registered a case in Crime No.160 of 1988 under Section 174

Cr.P.C. Ex. P-14 is a copy of printed First Information Report.

P.W.14 reached the scene of occurrence where at 12.10 p.m.

he prepared an observation mahasar, Ex.P-2 in the presence

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of  PW.1 and also  drew a rough sketch,  Ex.P-15.   the  dead

body was caused to be photographed and M.O.4 series are the

photographs.  He also seized M.Os 1 to 3, a shirt, a lungi, and

a banian respectively, from the scene under a mahasar Ex. P-

3.  He has converted the crime to one of suspicious death and

sent copies of express report, Ex. P-16, to the court and to the

higher  officials.   He  conducted  inquest  between  12.30  p.m.

and  2.30  p.m.  over  the  dead  body  of  Rajendran  in  the

presence  of  Panchayatdars  during  which  he  examined  and

recorded the statements of PW.1 and others.  Ex. P-17 is the

inquest report.  After the inquest, PW.14 sent the dead body

with his requisition through PW.12 for post-mortem.

On completion of investigation the charge sheet was filed,

case was committed to the court of Sessions for trial.  Accused

persons pleaded innocence. Undisputedly the case at hand is

a  case  of  circumstantial  evidence.  While  finding  that  the

evidence is inadequate to fasten the guilt on A1, the trial court

held A2, the appellant herein guilty based on the evidence of

PWs 3,4,8& 9 who claimed to have seen the deceased last in

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the company of the appellant.  The conviction, as noted above,

was  challenged  before  the  High  Court.   By  the  impugned

judgment the appeal was dismissed.

In  support  of  the  appeal  learned  counsel  for  the

appellant  submitted  that  the  evidence  of  PWs  3,  4,  8  &  9

should not have been relied upon.  It is pointed out that all

these  witnesses  were  examined  after  considerable  length  of

time.  Further there was considerable gap between the time

the witnesses alleged to have seen the accused appellant in

the company of the deceased and the discovery of the dead

body  on 22.4.1988.   The  Doctor  PW 11 who examined  the

dead  body  found  that  the  same  was  in  an  extremely

decomposed state.  There was no reason for PWs. 8 & 9 to

remember that appellant was in the company of the deceased

on a particular day.  PW 4 did not also speak of the date but

only said that he had seen the appellant and the deceased on

a Tuesday.  It is pointed out that in view of the nature of the

evidence adduced the trial court and the High Court should

not have convicted the appellant.

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2. Before analyzing factual aspects it may be stated that for

a crime to be proved it is not necessary that the crime must be

seen to have been committed and must, in all circumstances

be proved by direct ocular evidence by examining before the

Court  those  persons  who  had  seen  its  commission.  The

offence  can be  proved  by  circumstantial  evidence  also.  The

principal fact or factum probandum may be proved indirectly

by means of certain inferences drawn from factum probans,

that  is,  the  evidentiary  facts.  To  put  it  differently

circumstantial evidence is not direct to the point in issue but

consists of evidence of various other facts which are so closely

associated with the fact in issue that taken together they form

a  chain  of  circumstances  from  which  the  existence  of  the

principal fact can be legally inferred or presumed.  

3. It  has  been  consistently  laid  down by  this  Court  that

where a case rests squarely on circumstantial evidence,  the

inference  of  guilt  can  be  justified  only  when  all  the

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incriminating  facts  and  circumstances  are  found  to  be

incompatible with the innocence of the accused or the guilt of

any other person. (See Hukam Singh v. State of Rajasthan AIR

(1977 SC 1063);  Eradu and Ors. v.  State of Hyderabad (AIR

1956 SC 316);  Earabhadrappa v.  State of  Karnataka   (AIR

1983 SC 446);  State of U.P. v.  Sukhbasi and Ors. (AIR 1985

SC 1224);  Balwinder Singh v.  State of Punjab (AIR 1987 SC

350);  Ashok Kumar Chatterjee v.  State of M.P. (AIR 1989 SC

1890). The circumstances from which an inference as to the

guilt  of  the  accused  is  drawn  have  to  be  proved  beyond

reasonable  doubt  and  have  to  be  shown  to  be  closely

connected with the principal fact sought to be inferred from

those circumstances. In  Bhagat Ram v. State of Punjab (AIR

1954 SC 621), it was laid down that where the case depends

upon  the  conclusion  drawn  from  circumstances  the

cumulative  effect  of  the  circumstances  must  be  such  as  to

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

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4. We may also make a reference to a decision of this Court

in  C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC

193, wherein it has been observed thus:

“In  a  case  based  on  circumstantial evidence,  the  settled  law  is  that  the circumstances from which the conclusion of guilt  is drawn should be fully proved and  such  circumstances  must  be conclusive  in  nature.  Moreover,  all  the circumstances  should  be  complete  and there should be no gap left in the chain of evidence.  Further  the  proved circumstances  must  be  consistent  only with  the  hypothesis  of  the  guilt  of  the accused and totally inconsistent with his innocence....”.

5. In  Padala  Veera  Reddy v.  State  of A.P.  and Ors.   (AIR

1990 SC 79), it was laid down that when a case rests upon

circumstantial  evidence,  such  evidence  must  satisfy  the

following tests:  

“(1) the  circumstances  from  which  an inference of guilt is sought to be drawn, must be cogently and firmly established;

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(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 probability  the  crime  was  committed by the accused and none else; and     

(4) the  circumstantial  evidence  in  order  to sustain  conviction  must  be  complete  and incapable  of  explanation  of  any  other hypothesis  than  that  of  the  guilt  of  the accused and such evidence should not only be consistent  with  the  guilt  of  the  accused  but should be inconsistent with his innocence.”

6. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104),  it  was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied

on is reasonably capable of two inferences, the one in favour

of the accused must be accepted.  It was also pointed out that

the circumstances  relied upon must be found to have been

fully established and the cumulative effect of all the facts so

established  must  be  consistent  only  with  the  hypothesis  of

guilt.

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7. Sir  Alfred  Wills  in  his  admirable  book  “Wills’

Circumstantial Evidence” (Chapter VI) lays down the following

rules  specially  to be  observed  in  the  case  of  circumstantial

evidence:  (1)  the  facts  alleged  as  the  basis  of  any  legal

inference  must  be  clearly  proved  and  beyond  reasonable

doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

any  fact,  which  infers  legal  accountability;  (3)  in  all  cases,

whether of direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits; (4) in

order  to  justify  the  inference  of  guilt,  the  inculpatory  facts

must be incompatible with the innocence of the accused and

incapable  of  explanation,  upon  any  other  reasonable

hypothesis than that of his guilt, (5) if there be any reasonable

doubt of the guilt of the accused, he is entitled as of right to

be acquitted”.

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8. There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-

stone of law relating to circumstantial evidence laid down by

the this Court as far back as in 1952.   

9. In  Hanumant Govind Nargundkar and Anr. V.  State of

Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed

thus:

“It  is  well  to remember  that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt  is  to  be  drawn  should  be  in  the  first instance be fully established and all the facts so established should be consistent only with the  hypothesis  of  the  guilt  of  the  accused. Again,  the  circumstances  should  be  of  a conclusive  nature  and  tendency  and  they should  be  such  as  to  exclude  every hypothesis  but  the  one  proposed  to  be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be  such  as  to  show that  within  all  human probability the act must have been done by the accused.”

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10. A reference may be made to a later decision in  Sharad

Birdhichand  Sarda v.  State  of  Maharashtra, (AIR  1984  SC

1622).  Therein, while dealing with circumstantial evidence, it

has been held that onus was on the prosecution to prove that

the  chain  is  complete  and  the  infirmity  of  lacuna  in

prosecution cannot be  cured by false  defence  or plea.   The

conditions  precedent  in the  words of  the  this  Court,  before

conviction could be based on circumstantial evidence, must be

fully established. They are:

(1) the  circumstances  from  which  the conclusion of  guilt  is to be drawn should be fully  established.   The  circumstances concerned  must  or  should  and  not  may  be established;

(2) the  facts  so  established  should  be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the  circumstances  should  be  of  a conclusive nature and tendency;

(4) they  should  exclude  every  possible hypothesis except the one to be proved; and

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(5) there  must  be  a  chain  of  evidence  so compete as not to leave any reasonable ground for  the  conclusion  consistent  with  the innocence of the accused and must show that in  all  human  probability  the  act  must  have been done by the accused.     

11. Coming to the factual scenario it is to be noted that as

rightly  contented by learned counsel  for  the appellant,  that

PW 4 did  not  say  that  he  had seen  the  appellant  and the

deceased on any particular date. He had merely stated that he

had seen them on a Tuesday.  The trial court and the High

Court without anything further came to hold that he meant

19.4.1988, because he stated that he saw them on Tuesday.

Similarly PW 9 has stated that he did not know as to which of

the accused i.e.  whether A1 or A2 came with the deceased.

Interestingly  he  stated  that  only  after  an  enquiry  by  the

inspector, he came to know the name of the appellant.  He has

also stated that on a Tuesday night he had seen him.   He

does  not  speak  of  any  date.   He  also  admitted  in  cross

examination that he does not remember who comes for taking

drinks as several persons were coming for taking drinks.  It

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was not explained as to how he remembered at the time of his

examination in Court which was after about 2 ½ years of the

alleged  date  of  occurrence  to  have  seen  accused  and  the

deceased together.   So far as the PW 8 is concerned he had

identified  A2  for  the  first  time  in  Court.   In  his  cross

examination he accepted that he saw the appellant for the first

time after the day on which he had seen him.  Before that he

did not see A2 and he did not give any identification mark of

A2 to police.

12. He  has  further  admitted  that  after  pointing  out  the

appellant, the police enquired as to whether he had seen the

person.

13. So far as the last seen aspect is concerned it is necessary

to take note of two decisions of this court.  In State of U.P. v.

Satish [2005(3) SCC 114] it was noted as follows:

“22. The  last  seen  theory  comes  into  play where the time-gap between the point of time when the accused and the deceased were seen

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last  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 in some cases to positively establish that the deceased was last seen with the accused when there  is  a  long  gap  and  possibility  of  other persons  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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

14. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006

(10 SCC 172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of  time when  the  accused  and the  deceased were last seen alive and 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.  Even  in  such  a case  the  courts  should  look  for  some corroboration. 28. In State of U.P. v. Satish [ 2005(3)SCC 114] this Court observed: (SCC p. 123, para 22)

“22.  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

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crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there  is  a  long  gap  and  possibility  of  other persons  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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.”

(See  also  Bodhraj v.  State  of  J&K (2002(8) SCC 45).)”

15. A similar view was also taken in Jaswant Gir v. State of

Punjab [2005(12) SCC 438].

16. Above  being  the  position,  the  inevitable  conclusion  is

that the trial court and the High Court were not justified in

directing conviction of  the  appellant.  He  is  acquitted  of  the

charges.   The  bail  bonds  executed  pursuant  to  the  order

granting bail shall stand discharged.  

17. The appeal is allowed.    

……..…………………….………J.

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(Dr. ARIJIT PASAYAT)

…………………………….……..J. (P. SATHASIVAM)

…………………………….……..J. (AFTAB ALAM)

New Delhi, May 16, 2008

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