REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 868-869  OF 2004   

Ramesh Bhai & Anr. ..Appellants  

versus

State of Rajasthan ..Respondent              

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

Rajasthan  High  Court  upholding  the  conviction  of  the  appellants  for  

offences punishable under Sections 302, 120B and 201 of the Indian Penal  

Code, 1860 (in short the ‘IPC’).  Two appeals filed by the appellants were

disposed of by a common judgment.  Learned Additional Sessions Judge,  

Abu Road, Sirohi had convicted the appellant as aforenoted.

2. Prosecution version in a nutshell is as follows:

On 12.01.1996 a missing person report about Purshottam Bhai was  

submitted  by  Smt.  Jashoda  Ben to  the  Police  Inspector,  Police  Station,  

Nadiad.  On this application, Inspector Arvindbhai Patel (PW 21) started  

investigation on 16.1.1996. Since in the application the name of Jasbhai r/o  

Nadiar was mentioned so he reached Nadiad and started investigation of  

the case.  Jasbhai was not found at his home.  His son’s wife Rekha met  

him there and she was interrogated.  On 18.1.1996, Jasbhai was found at  

home and he was interrogated.  The statement of Jasbhai was recorded.  

Jasbhai said that Ramesh Patel and Narvar Singh both have cheated him  

jointly  in  purchasing  his  house.   On  18.1.1996  the  statements  of  

Jashodaben were recorded and copy of the agreement of sale of the house  

of Jashodaben was submitted.  Thereafter the statements of Rameshbhai  

and Narpat Singh were recorded.  Both the accused persons Narvar Singh  

and Ramesh accepted that they had taken Purshottam Bhai and his wife on  

a visit  to Ambaji  at  Abu Parvat and in Abu Parvat at  sunset point they  2

made them drink coffee by pouring sleeping pills  in  it.   After  drinking  

coffee,  Purshottam  Bhai  became  unconscious  and  he  was  given  five  

injections  of  poison.   Jashoda  Ben  was  not  unconscious  therefore  they  

could  not  give  her  injections.   After  giving  him  injections  of  poison,  

Purshottambhai died and they wrapped his dead body in a sheet and placed  

it in the room.  This room was hired at Raghunath Dharamshala.  Therefore  

Narvat Singh left Dharamshala and Ramesh told Jashoda that Purshottam  

Bhai had gone to Ambaji alongwith Narvar Singh and he asked her to go to  

Ambaji.   Taking Jashoda with  him, Ramesh came to  Ambaji.   Leaving  

Jashoda  alone  at  Ambaji,  both  the  accused  persons  fled  away.   On  

19.01.1996 Inspector Arvind Bhai Patel reached Abu Parvat Police Station  

taking Jasbhai, Ramesh and Narvar Singh with him and in the morning all  

the three accused persons were handed over to the Abu Parvat Police.  

After  completion  of  investigation,  charge  sheet  was  filed.   Since  

accused persons abjured guilt, trial was held.

The trial court found that though the case of the prosecution rested on  

circumstantial  evidence,  the  circumstances  clearly  established  the  

accusations.

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In appeal the High Court upheld the conviction as recorded.

3. In support of the appeal learned counsel for the appellants submitted  

that the circumstances highlighted do not establish the accusations.

4. Learned counsel for the respondent-State on the other hand supported  

the judgment.

5. 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  4

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.

6. 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....”.

7. 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.

8. 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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9. 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”.

10. 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.   

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11. 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.”

12. 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 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  

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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.     

13. These  aspects  were  highlighted  in  State  of  Rajasthan v.  Rajaram  

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)  

SCC 261) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE  

541.]

14. The admitted position is that the dead body was found on 20th January,  

1996 whereas accused persons were stated to have been seen in the company  

of the deceased on 8th and 9th January, 1996.  PW 9, the wife of the deceased  

admitted  that  the  parties  separated  on  9th January,  1996.   The  missing  

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person’s report was lodged on 12th January, 1996 by PW 11 the nephew of  

the deceased.

15. The only evidence which appears to have been pressed into service by  

the prosecution was that the injections were recovered from a lane near the  

house of the accused.

16. It is to be noted that the High Court recorded a finding as if it was  

proved  through  the  prosecution  evidence  and  medical  evidence  and  the  

report  of  Doctor  that  the  cause  of  death  of  the  deceased  was  ‘Organo  

Phosphorous’ which was administered to him.  This finding is apparently  

wrong.  The doctor’s opinion as is evident from Exh.P15-1 that the cause of  

death was not possible to be noted because the body was decomposed.

17. According  to  the  FSL  report  Exh.P4  medicine  called  Diazepam  

“Tranquilizer” was found in the stomach intestine, lever, heart, kidney and  

lungs etc.   In view of the shaky nature of the evidence adduced it would be  

unsafe to convict the appellants.   The conviction as recorded by the trial  

court and upheld by the High Court stand quashed.  The appellants be set at  

liberty forthwith unless required to be in custody in connection with in any  

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other case.  We place our appreciation for the able manner in which Mr.  

Shiv Kumar Suri, learned Amicus Curiae assisted the court.

18. The appeals are allowed.  

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

……..…….............................J. (ASOK KUAMR GANGULY)

New Delhi, April 24, 2009  

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