REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 1969  OF 2008 (Arising out of SLP (Crl.) No. 3164 of 2007)

Arun Bhakta @ Thulu …Appellant

Versus

State of West Bengal …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta  High  Court  dismissing  the  appeal  filed  by  the  appellant  and

upholding the conviction for offence punishable under Section 302 of the

Indian Penal Code,1860 (in short the ‘IPC’) and sentence of imprisonment

for life and fine of Rs.1,000/- with default stipulation.

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3. Prosecution version as unfolded during trial is as follows:

Jyotsna (hereinafter referred to as the ‘deceased’) was married to the

appellant.  They were blessed with a child. Satish Mallick, PW 8 was the

father  of  the  deceased  and  Kulu  Mallick,  PW 9  was  the  mother  of  the

deceased. On the fateful day the deceased and the accused were sleeping

together i.e. on 5.4.1999.  At about 5 O’ clock on 5.4.1999 Malati Mallick,

the elder sister of the deceased reported to the complainant and told him that

his  elder  sister  was  lying  in  a  pool  of  blood.  Thereafter  he  went  to  the

bedroom of Jyotsna and found that she was lying dead on a pool of blood

and there was a cut mark in the right side of her neck.  At that time the

accused was not present.  Since the accused and the deceased were sleeping

together after taking their food, the de-facto complainant concluded that the

accused had killed his wife.  Matter was reported at the police station.  After

investigation charge sheet was placed and the accused faced trial.  In his

cross examination under Section 313 of the Code of Criminal Procedure,

1973 (in short the ‘Code’) the accused took the plea of alibi.  Since it was a

case  of  circumstantial  evidence  the  trial  court  referred  to  certain

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circumstances to find the accused guilty.  The appellant preferred an appeal

before the High Court which as noted above was dismissed.

4. Learned counsel for the appellant with reference to the evidence of

witnesses submitted that though 11 circumstances were highlighted to hold

the appellant guilty, none of them can really be called to be a circumstance

to fasten the guilt on the accused.  It was submitted that though the so called

last seen aspect was highlighted by the trial court and the High Court, the

evidence of the witnesses clearly show that the factual scenario was totally

different.

5. Learned counsel for the State on the other hand supported the order of

the High Court.  

6. The circumstances highlighted by the trial court to find the appellant

guilty are as follows:

“(a) The appellant and Jyotsna @Mithila were married to each other.

(b) The couple had a little child.

(c) The appellant used to reside for quite some time in  his  in-laws’  house  and  used  to  earn  his  living  by plying a rickshaw.

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(d) Between the nights of 4/5-4-1999 the dead body of Jyotna was found in her house with her throat slit with profuse bleeding.

(e) There  was  a  recovery of  the  axe  by PW 6 after being led by the appellant from the house of PW 8 along with a blood stained shirt of the appellant on 5.4.1999 at 20.15 hours in the presence of PW 2 Sushil  Bhakta  and  one  Muchiram  Soren  (not examined).

(f) Both the axe and the shirt contained bloodstains

(g) PW  7  Uma  kanta  Singh  sent  the  same  to  the Forensic Laboratory for examination.

(h) The report marked as Exh.5 shows that insufficient blood for serological test was detected in the shirt and in the handle of  the axe and the serological Test Report  shows as the bloodstains on the axe were disintegrated its origin could not be detected.

(i) The seizure List (Exh.2) leading to the recovery of the  axe  and  the  shirt  of  the  appellant  was  also signed by the appellant himself.

(j) The sketch Map (Exh.7) prepared by PW 7 Uma Kanta  Singh  also  shows  that  the  place  of occurrence has been described as the house of PW 8.

(k) The  Post  Mortem Report  was  marked  as  Exh.9. However,  the  doctor  was  not  examined  and  the same would be admissible for whatever worth it is for.”

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7. 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, i.e., 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 facts 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.  

8. 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 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.

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(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.

9. 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....”.

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10. 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; (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.

11. 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

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fully established and the cumulative effect  of  all  the facts  so established

must be consistent only with the hypothesis of guilt.

12. 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”.

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

circumstantial  evidence but it  should be tested by the touch-stone of law

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relating to circumstantial evidence laid down by this Court as far back as in

1952.   

14. 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.”

15. 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

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precedent in the words of 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

(5) there must be a chain of evidence so complete 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.”  

16. 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  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 in some cases to  positively establish that  the deceased was last

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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."

17. 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."

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

(Also  see  Jaswant  Gir v.  State  of  Punjab (2005(12) SCC 438).

18. So far as the evidence relating to the last seen aspect is concerned PW

1  stated  that  the  accused  and  the  deceased  slept  together  in  the  room.

Strangely PW 9 stated that the deceased slept alone and the appellant had

not come to his house.  PW 1 is the sister of the deceased.  PW 8 the de-

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facto complainant i.e. the father of the deceased resiled from the statement

made  during  investigation  and  stated  that  he  had  not  told  anybody  that

appellant  was  sleeping with  the deceased.    In view of the diametrically

opposite  version  as  to  whether  the  accused  and  the  deceased  were  seen

together  in  the  house  it  would  be  unsafe  to  direct  his  conviction.   The

prosecution  has  failed  to  prove  the  accusations.   That  being  so,  the

conviction of the appellant is set aside and he is acquitted of the charges.

Since he is in custody let him be released forthwith unless required to be in

custody in any other case.    

19. Appeal is allowed.

………………………… …J.

(Dr. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

New Delhi: December 5, 2008

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