REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 473 OF 2001

Manivel & Ors. …Appellants

Versus

State of Tamil Nadu …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  this  appeal  is  to  the  correctness  of  the

judgment  rendered by a Division Bench of the Madras

High Court upholding the conviction of the appellants for

offence punishable under Section 302 of the Indian Penal

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

imprisonment  for  life  as  awarded  by  learned  Sessions

Judge, Trichi.

2. Prosecution  version  as  unfolded  during  trial  was  as

follows:   

Allegation was that between 10 P.M. on 10.8.1989 and 4

A.M. on 11.8.1999, the appellants murdered one Mugamuni

(hereinafter referred to as the ‘deceased’) by strangling him to

death  and  threw  the  dead  body  into  a  well  to  screen

themselves  from  the  offence.   The  appellants  hereinafter

referred to as A1 to A5 for the sake of convenience.

The deceased is the son of PW 4. PW 5 is the younger

sister of the deceased and PW 8 is the paternal uncle of PW 4.

PW 11 is the cousin of the deceased.  PWs. 3 & 10 are also

related to the deceased.  P.W.2 is the brother of P.W.12. A.2

and A.3 are cousins and A.4 is the son of maternal aunt of A.2

and A.3.  A.1 is  related  to A.5. The witnesses,  the deceased

Magamuni  and  accused  1  to  5  were  residing  at  Mathagiri

village.

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The deceased married one  Nallangal about four months

prior  to  the  date  of  incident.  Said  Nallangal  was  in  illicit

relationship  with A.1  and  continued  to  have  the  said

relationship with A.1 even after the marriage. A.1  questioned

the deceased as to why he has married Nallangal and he was

also beaten by A.1. The other accused also quarrelled with the

deceased for marrying Nallangal. This is said to be the motive

for the incident which took place.

When  P.W.4  was  at  the  shandy  along  with  his  son,

Magamuni, the deceased in the case and his daughter P.W.5,

accused 1 to 4 went there and asked deceased to accompany

them. P.W.4 questioned them as to why they are taking the

deceased.  The accused told him that  they  wanted  to go  for

hunting. The deceased in the company of A.1 to A.4 was seen

by P.Ws.  4 and 5 at  6  p.m.  At  about  10 p.m.,  when PW.7

alighted  at  Gorimedu  from a  bus,  saw  A.1  to  A.5  and  the

deceased proceeding towards south from north and an electric

lamp was burning at that place. P.W.7 questioned them as to

where they were  going, for which A.1 to A.5 replied that they

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were going for hunting and they were in possession of sticks.

The deceased was not seen alive thereafter. At about 4 a.m. on

11.6.1989, P.W.8 was at the bus stop for boarding a bus and

he saw A.1 to A.5 coming towards north. When he questioned

them, they told him that they are returning after hunting.

PW.2, a resident of Gorimedu went to a well in the village

to drink water and to his utter dismay found a body of a male

floating in the well. Immediately, he went to the house of his

elder  brother  and  informed  him who  advised  him  to  lay  a

complaint with the village Administrative Officer. PW.2 went to

the house of PW 1 the village Administrative officer, Mathagril

village  and gave a statement which  was  reduced into  writing

which stands marked as Ex.P.1 in the case. P.W.1  prepared

Ex.P.2,  his  report and handed over the same to his servant

with a direction to hand over both the documents at the police

station.  Exs.  P.1  and P.2  were  handed  over  to  P.W.16,  the

writer of Balaviduthi Police  Station,  who registered a case in

crime  No.  193  of  1989  under  Section  174  of  the  Code  of

Criminal  Procedure,  1973  (in  short  ‘Cr.P.C.’)  by  preparing

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express  reports.  Ex.P.2  is  the  copy  of  the  printed  First

Information Report. The investigation was taken up by PW.18,

the Sub Inspector of Police.  On taking up the investigation,

PW.18  reached  the  scene  of  occurrence  and  prepared  an

observation  mahazar  Ex.  P.3.  He  drew  a  rough  sketch  Ex.

P.25. The body was taken out of the well and in the presence

of  panchayatdars,  he  conducted  inquest  and  during  the

inquest he questioned and recorded the statements of P.Ws. 1,

2, 4, 5 and 12. From the statements, he realised that it is not

a case  of  suspicious  death,  but  it  is a case  of  murder  and

therefore,  altered  the crime from one under Section 174 Cr.

P.C.  to  Sections  302  and  201  IPC  by  sending  his  express

reports, Ex.P.27. After the inquest, the body was handed over

to  the  Inspector  of  Police,  with  a  requisition  to  conduct

autopsy.

3. After the investigation was completed charge sheet was

filed,  the accused  persons abjured guilt  and therefore,  they

were put on trial.

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4. The trial court placed reliance on the evidence of PWs 4,

5, 7 & 9 to hold the accused appellant guilty.

5. In appeal the primary stand was that the concept of last

seen theory cannot be applied in the present case. The High

Court  found  that  the  evidence  of  PWs  4,  5,  7  &  8  clearly

established the accusations and therefore, found no infirmity

in the judgment of the trial Court.

6. The primary stand for learned counsel for the appellant

in this appeal was that since accused persons were inimically

deposed towards the deceased, it is highly improbable that he

would have gone out in their company.

7. Learned counsel  for the respondent-State on the other

hand submitted that though PWs 4 & 5 were relatives of the

deceased  yet  PW  7  is  independent  witness  who  saw  the

deceased in the company of the accused persons on 10.8.1989

in  the  evening  and  early  next  morning  his  dead  body  was

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found in  the  water  of  a  well.  There  is  no  reason why they

would falsely implicate the accused.

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. (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

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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....”.

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:  

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“(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

fully established and the cumulative effect of all the facts so

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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”.

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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 relating to circumstantial evidence laid down by

the 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

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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  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.      

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16. These aspects were highlighted in  State of Rajasthan v.

Raja  Ram (2003  (8)  SCC  180),  State  of  Haryana v.  Jagbir

Singh and Anr.  (2003  (11)  SCC 261)  and Kusuma Ankama

Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of

on 7.7.2008)

17. 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 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

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by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

18. In Ramreddy Rajeshkhanna 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 Bodh Raj v. State of J&K (2002(8) SCC 45).)”

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

Punjab [2005(12) SCC 438] and Kusuma Ankama Rao’s

case (supra).  

20. When the background facts are considered in the light of

evidence on record, it is clear that the trial court and the High

Court  were  justified  in  holding  the  appellants  guilty. The

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appeal  is  therefore  without  any  merit,  deserves  dismissal,

which we direct.

…………..……………………….J. (Dr. ARIJIT PASAYAT)

……………………..…………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 8, 2008

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