IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1216      OF 2008 (Arising out of S.L.P. (Crl.) No. 452 of 2007)

I. Ravindra Reddy …Appellant

Vs.

Shaik Khader Masthan and Ors. …Respondents

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 Andhra Pradesh High Court directing acquittal of

the respondents 1 and 2. The appeal  has been filed by the

informant.   The  accused  1  and  2  were  tried  for  offences

punishable under Sections 364, 302, 404 and 201 read with

Section 109 of the Indian Penal Code, 1860 (in short the ‘IPC’)

There  was another  person described  as A-3 who also  faced

trial alongwith them.  The trial Court found that prosecution

has been able  to establish the guilt  of  A-1 and A-2 beyond

reasonable  doubt  while  directing  acquittal  of  A-3.  The

conviction and the sentences imposed by the trial Court were

as follows:

A-1 and A-2 are sentenced to rigorous imprisonment for

ten  years  and  to  pay  a  fine  of  Rs.1,000/-,  in  default  to

rigorous imprisonment for a period of six months each for the

offence under Section 364 read with Section 34 IPC.

A-1 and A-2 are further sentenced to imprisonment for

life  and to  pay  a fine  of  Rs.1,000/-,  in  default,  to  rigorous

imprisonment for a period of six months each for the offence

under Section 302 read with Section 34 IPC.

A-1  and  A-2  are  further   sentenced  to  rigorous

imprisonment  for a period of three years and to pay a fine of

2

Rs.1,000/-, in default, to rigorous imprisonment for a period

of six months each for the offence under section 404 IPC.

A-1  and  A-2  are  further  sentenced  to  rigorous

imprisonment for a period of seven years and to pay a fine of

Rs.1,000/-, in default, to rigorous imprisonment for a period

of six months each for the offence under Section 201 IPC.  

The  sentences  inflicted  under  the  above  offences  shall

run concurrently.   

Being aggrieved by the judgment of the trial Court, A-1

and A-2 filed  appeal  before  the High Court  which as noted

above was allowed and they were acquitted of the charges.  

3. Prosecution version in a nutshell is as follows:

A-1 is the son of A-3. A-2 is a friend of A-1. They are all

residents of Nellore. PW-1 is the father (hereinafter referred to

as the ‘deceased’), of Isanaka Pradeep Kumar Reddy.  About

3

16 years prior to the incident, A-3 worked as car driver under

P.W.1.  During  that  time  A-1  also  studied  along  with  the

deceased in 10th class and Intermediate in National School,

Nellore. In the year 1996, P.W.1 purchased one Ambassador

car bearing registration No. AP 7C 9499 from P.W.12, but it

was not transferred in the name of P.W.1. In the year 1997

P.W.1 sold the said car to A-3 for Rs.2 lakhs, and handed over

the same to him. But he did not pay the amount. When P.W.1

demanded the amount, A-3 informed that he would purchase

one Maruti car in his name by taking loan from Apple Credit

Corporation  and  accordingly  A-3  purchased  Maruti  Car

bearing  registration  No.  AP  26  D  5767  in  May,  1997  and

handed over the same to P.W.1. The deceased was using the

same.  A-3  paid  some  instalments  to  the  Finance  Company

and  later  stopped  payment.  When  the  Finance  Company

asked P.W.1 to pay the instalments, he paid two instalments.

For  non-payment  of  subsequent  instalments,  Finance

Corporation employees seized the vehicle on 27-2-1999 when

P.W.1 was at Hyderabad. The deceased informed the same to

P.W.I on phone. On P.W.1 returning to Nellore, the deceased

4

informed him that he asked A-1 with regard to amount of the

car in the college but he did not pay any amount.  On 9-3-

1999 at about 11.15 AM while  taking English  class for  the

students,  PW-3  found  some  disturbance  in  the  class  and

found  the  deceased  and  A-1  talking  to  each  other.  After

completing  the  class,  the  deceased  approached  P.W.3  and

complained  against  A-1  that  he  was  asking  for  money.

Thereupon he asked the deceased as to whether he had to pay

any  amount  to  A-1,  to  which the  deceased  replied  that  no

amount  was  due  to  A-1.  Immediately  P.W.3  slapped  A-1.

P.W.17, a student of the college witnessed the said incident.

While  so,  on  10-3-1999  at  about  11  AM,  P.W.4  who  is  a

classmate  of  the  deceased  asked  the  deceased  about  the

incident on 9-3-1999, and the deceased informed him about

purchasing of car by P.W.1 and non-payment of instalments

by A-3. On the said date,  A-1 and A-2 went to the shop of

P.W.5  and  purchased  two  kitchen  knives,  one  of  "Prestige"

company for Rs.220/- and another "Crystal" for Rs.50/-. On

11-3-1999 the deceased went to the college at about 9 AM but

did not return from the college till 1.30 PM. On that day at

5

about 9.30 a.m. the deceased had gone to the shop of P.W.2

and asked P.W.2 whether any Maruti car is available.  Then

PW-2 informed him that there are  no Maruti  cars  available

and  he  would  inform  him  whenever  cars  are  available.  At

about 10 A.M., P.W-6 who is a Mechanic in Auto Nagar and

also broker in buying and selling cars found the deceased at

the shop of P.W.2. At about 12.30 p.m. the deceased went

to  P.W.6 along with A-1 and another  person and asked  for

1986 or 1987 model Maruti car.  Then the deceased asked A-1

to get a scooter. A-1 informed him that he would give a scooter

which he was using and get another scooter from Amancherla.

Then all the three persons left the place at about 1.30 or 2

PM. At that time P.W.17 was also present. P.Ws.7 and 8 saw

the  deceased  and  A-1  and A-2  going  on  a  scooter  towards

Podalakur side. At about 2 PM,  P.W.9, who was in search of

his two missing buffaloes  which were lost  one month back,

saw three persons getting down from the scooter at a place

called "GuruThippa" which is at a distance of two kilometers

from Podalakur road. P.W.9 asked them as to why they came

there  leaving the main road.  One of  them replied  that they

6

came for collecting some medicinal leaves. Then PW-9 left the

place. One hour later while he vas searching for his buffaloes

at a distance of ten baras from the place where he first saw

the boys together,  he saw only two boys were going on the

scooter. He went to the top of Guru Thippa and found  some

smoke and got suspicion and returned to his village. As the

deceased did not return from the college till 3 PM, P.W.1 went

in search of him. P.W.7, a tailor, informed him that he found

three persons including the deceased going on a grey colour

scooter towards Podalakur and the deceased was sitting in the

middle of the scooter. On 12-3-1999, at about 12.15 PM P.W.1

went to IV Town Law and Order Police Station, Nellore and

submitted a written report to P.W.23, who registered the same

as  in  Cr.No.27/99  under  "Boy  Missing"  and  issued,  FIR

covered under Ex.P-43. He took up investigation and recorded

the statements of PWs 2, 4 and 17 and examined P.W.7 on 15-

3-1999. On 24-3-1999 at about 1-30 PM, P.W.23, arrested A-1

and interrogated him in the presence of P.W.11. Then A-1 lead

to Ayyappa temple and pointed out A-2. P.W.23 arrested A-2

in  the  presence  of  P.W.  11.  Thereafter  A-1  and  A-2  took

7

P.W.23 and PW.11 to Guruthippa where they found remains of

a skeleton scattered here and there, due to the eating away by

some animals. He also found burnt shoes, burnt wrist watch,

spectacles with gold frame and burnt banian covered under

M.Os.1  to  4.  He  collected  all  the  bones.  Meanwhile  P.W.1

came  to  the  scene  and  identified  M.Os.1  and  2.  P.W.23

prepared observation report covered under Ex.P-44 and held

inquest  over  the skeleton remains in the  presence  of  P.W.1

and Ex.P-45 is the inquest report. On receipt of observation

report  covered  under  Ex.P-44,  P.W.22,  Head  Constable,

altered the sections of law from "Boy Missing" to Sections 364,

302, 404, 201 r/w 109 IPC. P.W.24, Inspector of Police, who

took up further investigation, on 23-5-1999 visited the scene

of offence and prepared scene of offence panchanama covered

under Ex.P-12. He arrested A-3 on 27-3-1999, and examined

P.Ws.8 and 9 and recorded their statements on 28-3-1999. He

also  examined  P.W.10  and  P.W.5  and  recorded  their

statements  on  29.3.1999  and  30.3.1999  respectively.  He

interrogated A-1 and in pursuance of his confession, knives

(M.Os. 7 and 8) were recovered from the house of A-3 apart

8

from seizing  Bajaj  scooter  from the  house  of  A-1  and  A-3.

Pursuant  to  the  confession  of  A-2,  shirt  (M.O.10)  and  gold

chain (M.O.6) were recovered under Ex.P.16 panchnama. PW-

18 who is a Judicial First Class Magistrate, Nellore, conducted

test identification parade on 22.5.1999 and deposed that PW-

8 identified A-2 but could not identify A-1 and PW-9 identified

A-1  and  A-2.  On  receipt  of  the  reports  from  the  Forensic

Medicine,  S.V.  Medical  College,  Tirupathi  and  Forensic

Science  Laboratory,  Hyderabad  and  after  completion  of  the

investigation, PW-24 laid the charge sheet for the offences as

noted above.  As accused persons abjured guilt trial was held.

The trial Court found the evidence of PW-9 to be cogent

and credible and applying the principles of last seen found A-1

and  A-2  guilty.  The  High  Court  however  by  a  practically

cryptic  order  allowed the appeal.  It  observed that the main

evidence  was  of  recovery  and  therefore  the  chain  of

circumstances to establish the guilt  of  the accused was not

complete.   

9

4. In  support  of  the  appeal,  learned  counsel  for  the

appellant  submitted  that the  High Court  by a cryptic  order

directed acquittal overlooking the detailed discussion made by

the trial Court to find A-1 and A-2 guilty.  

5. Learned  counsel  for  the  accused  on  the  other  hand

supported the judgment.  

6. At this juncture, it is to be noted that learned counsel for

the State supported the stand of the appellant and prayed that

the judgment of the trial Court is to be restored.

7. PW-9 deposed  that  at  about  2.00  p.m.  on the  date  of

occurrence while he was going in search of his two buffaloes

which were lost one month back he saw three persons getting

down from a scooter at a place called “Guru Thippa”. When he

asked them as to why they came there leaving the main road,

one  of  them  replied  that  they  came  for  collecting  some

medicinal  leaves.  Thereafter,  he  left  that  place.  He  further

deposed that after about one hour while he was searching for

10

buffaloes at a distance of ten baras from the place where he

first saw the boys, he saw only two boys were going and found

some smoke and got suspicion about the matter and returned

to the village.  

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

11

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....”.

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

12

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

13

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.

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

14

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 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

15

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  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;

16

(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. 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 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

17

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.”  

18. 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).)”

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).  

18

20. It  is  to  be  noted  that  PW-5  stated  that  A-1  had

purchased two knives  which were seized  by PW-24 covered

under M.Os.7 and 8. The High Court took exception to the fact

that when PW-5 produced a duplicate bill  to the police, the

investigating officer did not produce the original in the Court.

It  is  not  understood  as  to  how that  the  duplicate  becomes

irrelevant.  The  High  Court  has  not  indicated  any  reason

whatsoever as to why he found the evidence of PW-9 to be not

acceptable  or  as  to  why  the  chain  of  circumstances

highlighted by the prosecution did not unerringly point at the

accused persons to be guilty as the authors of the crime. PW-9

identified A-1 and A-2 at the Test Identification Parade.  His

evidence regarding identification has remained unshaken.   

21. In view of what has been stated above, the judgment of

the High Court is clearly indefensible and is set aside and that

of the trial Court is restored. The respondents 1 and 2 shall

surrender  to  custody  forthwith  to  serve  the  remainder  of

sentence.

19

22. The appeal is allowed.  

…………………………..J. (Dr. ARIJIT PASAYAT)

…………………………..J. (G.S. SINGHVI)

New Delhi, August 4, 2008      

20