REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 831 of 2007

SK. Yusuf                     …Appellant

Versus

State of West Bengal                             …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.        This criminal appeal has been preferred against the judgment  

and order dated 28.06.2006 passed by the High Court of Calcutta in  

C.R.A.No.  229  of  2000,  by  which  it  dismissed  the  appeal  of  the  

appellant  against  the  judgment  and  order  of  conviction  dated  

26.5.2000  passed  by  the  Additional  Sessions  Judge,  First  Court,  

Burdwan in Sessions Trial  No. 7 of 1999, convicting the appellant  

under  Sections  302  and  201  of  the  Indian  Penal  code,  1860  

(hereinafter referred to as `IPC’) and appellant has been imposed the  

sentence to suffer rigorous imprisonment for life under Section 302

IPC  and  sentence  of  one  year  under  Section  201  IPC.   Both  the  

sentences have been directed to run concurrently.  

2. The facts and circumstances giving rise to this case are that:

(A) On  31.08.1991,  Sahanara  Khatun,  daughter  of  Abdul  Rajak,  

resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had  

gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did  

not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur  

Rahaman and Sirajul  Islam went to search her,  however, could not  

trace her in the jhinga field. They looked for her in bamboo grove  in  

nearby graveyard and found a freshly dug earth, thus, they removed  

the soil and found the dead body of Sahanara Khatun.  

(B) Imdad Ali (PW.1) lodged the FIR on the same day at  12.05  

hours  under Sections 302 and 201 IPC at  Police  Station Jamalpur,  

District  Burdwan  at  a  distance  of  8  kilometres  from the  place  of  

occurrence,  wherein  the  appellant  was  named  as  accused  on  the  

suspicion  that  appellant  was  seen  by  Abdul  Rashid  (PW.5)  and  

Swapan Murmu catching fish in the canal adjoining his jhinga field  

and was also seen talking with deceased.  The appellant was having a  

spade in his hand, when it is inquired from the appellant, he replied  

that he had gone to catch the fish near railway track.  Subsequently,  

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the appellant absconded. In the FIR, it had already been mentioned  

before committing the murder, Yusuf, the appellant tried to commit  

rape and on being resisted by the deceased, the appellant assaulted her  

on her head with spade and murdered and buried her in the graveyard.  

Thus, investigation ensued. The appellant was arrested on 7.9.1991 by  

the villagers in the paddy fields near Batrish Bigha and handed over to  

the police. It was on his disclosure that an old spade, one ghuni and  

one  enamel  thala  (plate)  were  recovered.   After  completing  the  

investigation, chargesheet was filed against the appellant. He denied  

his involvement in the crime pleading not guilty. Thus, he was put to  

trial.  The prosecution examined 19 witnesses to prove its case.  

(C) After  conclusion  of  the  trial,  the  Additional  Sessions  Judge,  

Burdwan,  vide  judgment  and  order  dated  26.5.2000  found  the  

appellant guilty of offences punishable under Sections 302 and 201  

IPC and sentenced him to life imprisonment and fine of Rs.1,000/-  

under  Section 302 IPC and further  sentenced  to  one  year  rigorous  

imprisonment and fine of Rs.500/- under Section 201 IPC.   

(D) Being  aggrieved  from  the  aforesaid  judgment,  the  appellant  

preferred  Criminal  Appeal  No.  229  of  2000  in  the  High  Court  of  

Calcutta  which  has  been dismissed  vide  judgment  and order  dated  

28.6.2006. Hence, this appeal.   

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3. Shri R.K. Gupta, learned Amicus Curiae, has submitted that it  

is a case of circumstantial evidence.  There is no evidence on record  

that Sahanara Khatun, deceased, was seen with the appellant at the  

place of occurrence. The spade recovered by the Investigating Officer  

during investigation had not been sent for chemical analysis.  The trial  

court as well as the High Court placed a very heavy reliance upon  

extra-judicial confession allegedly made by the appellant before Nurul  

Islam (PW.11) and Ali Hossain (PW.13) and others though there was  

no such confession.  Nurul Islam is the brother-in-law of Abdul Rajak  

(PW.2), father of the deceased.  Ali Hossain (PW.13) is a resident of  

the village of Nurul Islam (PW.11).  He did not support the version of  

extra-judicial confession put forward by Nurul Islam (PW.11).  There  

are contradictory statements regarding catching hold of the appellant  

at Jamalpur after one week of the incidence.  There is  no evidence of  

sexual assault  on the deceased. Dr.  Samudra Chakraborty (PW.18),  

who  conducted  the  post-mortem  on  the  body  of  Sahanara  Khatun  

(deceased) did not mention in his report that any sexual assault was  

made on the deceased  prior to her death.  Thus, the appeal deserves to  

be allowed.  

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4. On the contrary,  Shri  Tara Chandra Sharma,  learned counsel  

appearing  for  the  State,  has  vehemently  opposed  the  appeal  

contending that  there  are  concurrent  findings  of  fact  which do not  

require any interference by this Court.  Undoubtedly, the case is based  

on  circumstantial  evidence  but  chain  is  complete  and  the  

circumstantial evidence is so strong that it unmistakably points to the  

guilt  of  the  appellant  and  that  circumstances  are  incapable  of  

explanation upon any other reasonable hypothesis  that of the guilt of  

the appellant.   There  have been sufficient  material  on the  basis  of  

which the two courts below have convicted the appellant and the said  

judgments do not require any interference.  The appeal lacks merit and  

is liable to be dismissed.  

5. We  have  considered  the  submissions  made  by  the  learned  

counsel for the parties and perused the record.   Before proceeding  

further, it may be necessary to refer to the findings recorded by the  

courts below briefly.

6. Trial Court’s findings:

I. It appears from the evidence of Nurul Islam (PW.11) and Ali  

Hossain (PW.13) that the accused made an extra-judicial confession  

before them and also before other villagers when he was caught by  

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them about 7 days after his leaving away from his village after the  

date of occurrence.  The court further held that there was no direct  

evidence and it was a case of circumstantial evidence and there was  

enough evidence on record, particularly, of Imdad Ali (PW.1), Abdul  

Rajak  (PW.2),  Habibar  Rahaman  (PW.3),  Abdul  Majid  Mallick  

(PW.4),  Abdul  Rashid  (PW.5),  Alirul  Rahmal  (PW.6)  and  Abdul  

Salam Mallick  (PW.7)  that  accused  was  present  near  the  place  of  

occurrence at the relevant time when Sahanara Khatun, deceased went  

to jhinga field and the accused was carrying at that time one spade.  

II. It  appears  from  the  evidence  of  Abdul  Rashid  (PW.5)  and  

Alirul  Rahmal  (PW.6)  that  there  was  no  one  else  at  the  place  of  

occurrence adjacent to jhinga field and the accused was carrying one  

spade on the  basis  of  which  the  trial  Court  came to  the  following  

conclusion:  

“So there may be a reasonable inference that the accused,  who had one spade in his hand and who was engaged in  catching fish near the P.O., suddenly attacked the victim- Sahanara when she came to the jhinga field and thereafter  attempted to rape her and when he was resisted by her he  became violent and murdered Sahanara with the help of his  spade.   The  medical  evidence  given  by  Dr.  Samudra  Chakraborty (PW.18)  will  corroborate  that  Sahanara  was  murdered  by  Yusuf  with  a  sharp-cutting  weapon,  which  may be a spade and also by suffocation. The accused only  had the opportunity to assault Sahanara in such a way as he  carried  the  spade  with  him at  that  time  and  there  is  no  

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evidence  from  any  side  that  except  the  accused  such  a  spade was carried at that time by anybody else. Moreover,  the  accused  himself  had  admitted  in  his  extra-judicial  confession before  Nurul Islam (PW.11) and Ali Hossain  (PW.13)  and  others  that  he  murdered  Sahanara  at  the  relevant time when he was resisted by her from committing  rape upon her at the relevant time”.    

III. Extra-judicial confession came from the mouth of the witnesses  

who appeared to be unbiased and not even remotely inimical  to the  

accused. Undoubtedly,  Nurul Islam (PW.11) was a maternal uncle of  

the deceased but another witness in this regard i.e. Habibar Rahaman  

(PW.3) had no relationship with the family of the victim. Therefore, his  

evidence to the extent of extra-judicial confession would be legally and  

validly taken into consideration.  The trial  Court  basically  found the  

incriminating circumstance against the appellant as he is absconding  

and  ultimately  it  found  that  there  was  cogent  evidence  against  the  

appellant.  

7. High Court’s findings:

The High Court has accepted the judgment of the trial Court in  

toto observing that depositions of the witnesses, particularly, Abdul  

Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained unshaken  

to the extent that at the material time  they found the accused near the  

place  of  graveyard  with  spade  in  his  hand.  Another  circumstance  

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which swayed with the High Court had been that just after the incident  

the  appellant  ran  away.  The  High  Court   has  accepted  non-

examination of some material witnesses, particularly, Swapan Murmu,  

Rejaul  and  Sirajul,  accepting  the  explanation  furnished  by  Abdul  

Majid Mallick (PW.4) that at the relevant point of leading evidence,  

none of these persons was available in that area.  The extra-judicial  

confession  made  by  the  appellant-accused  before  Nurul  Islam  

(PW.11) and Ali Hossain (PW.13) in presence of others has also been  

accepted.  Further,  the  High  Court  had  accepted  the  explanation  

furnished by the prosecution that in case there has been some laches  

on the part of the Investigating Officer in sending the spade etc. for  

chemical analysis, no adverse presumption can be drawn against the  

prosecution.  The motive had been found as to the possibility of the  

accused trying to commit sexual assault.  All these factors had been  

found by the High Court of the conclusive nature as to exclude every  

other possibility except the accused being guilty of the offence.   

8. The case requires to be examined as to whether the aforesaid  

findings are sustainable in the eyes of law.

 LAST SEEN THEORY:

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9. The  courts  below  have  concluded  that  there  was  sufficient  

material on record to show that the deceased and the appellant were  

seen  together  at  the  place  of  occurrence.  Abdul  Rashid  (PW.5)  is  

alleged  to  have  stated  in  this  regard.   The  relevant  part  of  his  

statement  reads as under:

“When I was returning from my field at 9.00 A.M., I saw  Yusuf, appellant, catching fish near the jhinga field adjacent  to  the  graveyard.   I  talked  with  him there  and  thereafter  returned home.  I did not see anybody else near that place.  At  about  10.45  A.M.,  I  heard  that  the  dead  body  of  the  Sahanara Khatun was recovered from the graveyard as she  had  been  murdered  by  someone.   I  went  to  graveyard  alongwith others.  When the police officer asked me as to  who was the person, I told  him that I saw Yusuf, appellant,  catching fish in a nala near the graveyard.”(Emphasis added)

10. Another star witness Abdul Majid Mallick (PW.4)  stated :

“I  alongwith  Rezwan  Ali  went  to  the  house  of  Yusuf,  appellant.  We saw at  the  time that  Yusuf,  appellant,  was  going to his house with a spade and thala.  Yusuf, appellant  reported to  us  that  he went  to  catch fish beside  the  nala.  Rasid and Swapan firmly stated that they saw Yusuf,  near  the jhinga field.  I again went to the house of Yusuf, and saw  he fled away. Therefore, we could not apprehend Yusuf, in  our village.”  

11. Abdul  Majid  Mallick  (PW.4),  a  resident  of  the  same village  

deposed  that  alongwith  other  persons  particularly  Rezwan  Ali,  he  

went to the house of Yusuf, appellant, and saw that he was going to  

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his house with a spade and thala and Yusuf had told them that he had  

gone to catch fish beside the nala.  He stated as under:

“I do not know as to why Sahanara Khatun was murdered.  Swapan Murmu is not a resident of our village.  I cannot say  where he is now residing.  Rejowan Ali is an ailing person.  Sirajul is now residing in Punjab. I saw Yusuf coming to his  house carrying spade and a plate in his hand.  I heard from  Rashid and Swapan that they had seen the accused near the  place of occurrence.”

12. Imdad Ali (PW.1),  informant has deposed that Abdul Rashid  

(PW.5)  and  Swapan  Murmu  (not  examined)  saw  that  Yusuf  was  

talking with the deceased, Sahanara Khatun.  Abdul Rajak (PW.2),  

father of the deceased had deposed as under:  

“I came to know that Yusuf murdered my daughter … I  cannot  say  what  was  the  reason  for  murder  of  my  daughter”.

13. The persons particularly Rezwan Ali and Sirajul who had told  

these  witnesses  that  they  had  seen  the  appellant-accused  near  the  

jhinga field at the relevant time had not been examined.   More so, it  

has not been  stated by any of the aforesaid witnesses or persons not  

examined  that  Sahanara  Khatun  (deceased)  was  also  seen  there  

alongwith Yusuf, appellant.  It has not been deposed by any of the  

witnesses that deceased was seen talking with the appellant at all.  

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14. The  last  seen  theory  comes  into  play  where  the  time  gap  

between the point of time when the accused and 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.  (Vide:  Mohd.  Azad  alias  Samin v.  

State of West Bengal, (2008) 15 SCC 449; and  State thr. Central  

Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC  

109).    

15. From the above, it is evident that neither Abdul Majid Mallick  

(PW.4)  nor Abdul Rashid (PW.5) had stated that either of them  had  

seen Sahanara Khatun (deceased) alongwith Yusuf,  near the place of  

occurrence in close proximity of time.  All the witnesses deposed that  

appellant alone was seen near the place of occurrence with spade  as  

he had gone there for catching the fish.  Thus, there is no evidence to  

the extent that the deceased and appellant were seen together at the  

place of occurrence or nearby the same in close proximity of  time.

16. While the appellant-accused was examined by the trial Court  

under Section 313 of Code of Criminal Procedure, 1973 (hereinafter  

called as Cr.P.C.),  he was asked the question that during that  time  

Abdul Rashid (PW.5) and Swapan Murmu (not examined) had seen  

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him talking  with  the  deceased.   The  appellant  replied  that  he was  

innocent.

17. We  fail  to  understand  as  no  witness  had  deposed  seeing  

Sahanara Khatun, deceased talking with the appellant/accused,  how  

such a question could be put to the accused.

EXTRA-JUDICIAL CONFESSION:

18. Nurul Islam (PW.11), maternal uncle of the deceased, resident  

of village Rupsona, is not a witness of incident, rather deposed that he  

was the person who chased and apprehended the appellant after about  

7 days  of  the  incident.  The relevant  part  of  his  statement  reads as  

under:

“After 6-7 days, when I went to Shyamsundar Bazar for  my business, I saw Yusuf on the roof of a bus.  He got  down from the bus after seeing me.  He told me that he  did  the  wrong  and  begged  apology  for  that and  pleaded  not  to  assault  him  but  take  him  to  Jamalpur  Police  Station.  I   took  Yusuf  towards  Batrish  Bigha  village by boat and when we  crossed the river Damodar,  Yusuf started running. I chased him but failed to catch  him and then cried for help.  Thereafter,  public caught  Yusuf at Jamalpur Poolmatha.  When we took him to  the village, Yusuf admitted to him and others that he  murdered Sahanara Khatun and, thereafter, he asked  the  persons  to  take  him  to  Jamalpur  Police  Station.  Yusuf  told  them that  he  attempted  to  commit  rape  upon  Sahanara  Khatun and  when  she  resisted,  he  assaulted her with the spade on her head and killed her  and concealed the dead body in the graveyard”.                                                                          (Emphasis added)  

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           In his cross-examination, PW.11 repeated the same about the  

confession made by Yusuf, appellant before him in presence of other  

persons of the village.   

19. Ali Hossain (PW.13) is a resident of the village of Nurul Islam  

(PW.11) and deposed :

“……I went to Shyamsundar Bazar for purchasing goats.  At that time, we see the accused on the roof of a bus.  My  friend Nurul Islam who was with me asked the accused to  come down and he came down from the roof of the bus and  requested us not to assault him and to take him at the Police  Station  Jamalpur  and  thereafter  Nurul  Islam  took  the  accused towards Jamapur Police Station.”

In the cross examination, his deposition is as under:

“I  did  not  state  to  I.O.  that  after  crossing  the  river  at  Karalaghat  the  accused  ran  towards  Jamalpur.   I  did  not  chase the accused by crying – catch, catch. I did not state to  I.O. that some persons of Jamalpur caught the accused. ….  I  alone went to Shyamsundar Bazar.  Thereafter I purchased  goats from Shyamsundar Bazar. I cannot say anything more  about the occurrence.”

20. By comparison of the statements of Nurul Islam (PW.11) and  

Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not  

state  anywhere  in  his  statement  in  the  court  that  at  the  time  of  

apprehending the accused, Ali Hossian (PW.13) was also with him.  It  

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is only Ali Hossain (PW.13) who stated that his friend Nurul Islam  

(PW.11) was with him.  He further stated that it was Nurul Islam who  

asked the accused to come down from the roof of the bus and the  

accused  came  down.   The  statement  of   Nurul  Islam  (PW.11)  is  

otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf,  

appellant, got down from the bus after seeing him and told him that he  

did the wrong and begged apology for that.  Ali Hossain (PW.13) did  

not speak anywhere regarding any confession, though stated that the  

accused requested them not  to assault,  rather to take him to police  

station.    The  material  contradictions  are  there  in  respect  of  the  

manner in which the appellant had been apprehended.  Ali Hossain  

(PW.13) did not state that appellant made an attempt to runaway after  

making the said witness.  

21. Digambar  Mondal  (PW.19),  the  Investigating  Officer  has  

deposed  that  he  had  noticed  the  marks  of  injury  on  the  cheek,  

forehead and head of the deceased. The wearing apparels of the victim  

were not  soaked with blood.  He only sent the wearing pant  of the  

victim for chemical examination. He seized spade but did not sent it  

for chemical analysis. In his cross-examination he has stated as under:  

“The  witness  Nurul  Islam  stated  to  me  that  the  accused  was  caught  by  some  persons  at  Jamalpur  Pool-

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matha  and  thereafter  police  came  and  at  that  time  the  accused  stated  before  those  persons  and police that  he  tried to commit rape Sahanara on 31.8.1998 and when she  resisted the accused hit her with a spade and thereafter  hid  her body in the court-yard by digging some earth there”.                                                                     (Emphasis added)  

22. Both,  Nurul  Islam  (PW.11)  and  Ali  Hossain  (PW.13)   are  

chance witnesses as they alleged to be in Shyamsundar Bazar on that  

date  for  marketing  and  none  of  them had  regular  business  in  that  

bazar.  The Court while dealing with a circumstance of extra-judicial  

confession must keep in mind that it is a very weak type of evidence  

and require appreciation with great caution.  

             Extra-judicial confession must be established to be true and  

made voluntarily and in a fit state of mind.  The words of the witness  

must be clear,  unambiguous and clearly convey that accused is  the  

perpetrator  of  the  crime.   The  “extra-judicial  confession  can  be  

accepted and can be the basis of a conviction if it passes the test of  

credibility”. (See:  State of Rajasthan v. Raja Ram, (2003) 8 SCC  

180; and  Kulvinder Singh & Anr. v. State of Haryana,  (2011) 5  

SCC 258).  

 23. Nurul Islam (PW.11) who is maternal uncle of the deceased had  

deposed  about  extra-judicial  confession  made  by  the  accused  in  

presence of  others, though he was not able to explain who were the  

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other persons as no other person has been examined in this respect.  

Digambar  Mondal  (PW.19)  had deposed that  Nurul  Islam (PW.11)  

had told him about the confession by the accused in presence of other  

persons and police personnel. The accused had told him also that dead  

body was buried in the courtyard.  Thus, the theory of extra-judicial  

confession  revealed  by  Nurul  Islam  (PW.11)  does  not  get  

corroboration from the statement of Ali Hossain (PW.13) or any other  

independent witness or police personnel. Nor the body of the deceased  

was recovered from the  courtyard.  While considering the material  

contradictions  in  the  statement  of  Nurul  Islam  (PW.11)  and  Ali  

Hossain (PW.13), we do not consider that it would be safe to accept  

his version in this respect.  

24.      Dr. Samudra Chakraborty (PW.18), who conducted the autopsy  

on the body of Sahanara Khatun found the following injuries:

i) One incised wound 4” x 0.2” x scalp deep over middle  

3rd of  left  parietal  region  (vault  of  the  scalp)  cutting  

through the skin, pussa, muscle,  vessel and nerve and  

being placed 1.2” left on mid-line of the body;

ii) Bruises over 1” x 0.6” x over left side of forehead and  

being placed 0.5” left of mid-line of the body;

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iii) One lacerated wound 0.6” x 0.4” muscle and bone deep  

over left molar region with extra-vesation of blood and  

blood-clot in around the wound;

iv) Haema toma (red) 3.2” x 1.5” in area over left temporal  

parietal region;

v) Subdural haemorrhage of both sides of tempero parietal  

region of the brain.  

          In the opinion of the doctor,  death was due to combine  

effect of injuries and suffocation. The incised wound could be caused  

by a hit of sharp edge of the spade. The haema toma on the victim  

could be caused by a hit of  heavy blunt weapon.  This witness did not  

speak of any sign of sexual assault on the deceased  before or after her  

death.  

ABSCONDANCE:

25. Both  the  courts  below  have  considered  the  circumstance  of  

abscondance of the appellant as a circumstance on the basis of which  

an adverse inference could be drawn against him. It is a settled legal  

proposition that  in case a person is  absconding after  commission of  

offence of which he may not even be the author, such a circumstance  

alone may not be enough to draw an adverse inference against him as it  

would go against the doctrine of innocence.  It is quite possible that he  

may be running away merely being suspected,  out  of fear of police  

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arrest  and harassment.   (Vide:  Matru @ Girish  Chandra v.   The  

State of  U.P.,  AIR 1971 SC 1050;  Paramjeet Singh  @ Pamma v.  

State of Uttarakhand AIR 2011 SC 200; and Rabindra Kumar Pal  

@ Dara Singh v. Republic of India, (2011) 2 SCC 490)

Thus,  in  view of the  law referred to hereinabove,  mere  

abscondance of the appellant cannot be taken as a circumstance which  

give rise to draw an adverse inference against him.

26. CIRCUMSTANTIAL EVIDENCE:

Undoubtedly,  conviction  can  be  based  solely  on  

circumstantial evidence. However, the court must bear in mind while  

deciding the case involving the commission of serious offence based  

on circumstantial evidence that the prosecution case must stand or fall  

on its own legs and cannot derive any strength from the weakness of  

the defence case.   The circumstances from which the conclusion of  

guilt is to be drawn should be fully established. The facts so established  

should  be  consistent  only  with  the  hypothesis  of  the  guilt  of  the  

accused and they should not be explainable on any other hypothesis  

except  that  the accused is  guilty.  The circumstances  should be of  a  

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conclusive nature and tendency. 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. (Vide:  

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

1622, Krishnan v.  State represented by Inspector of Police, (2008)  

15 SCC 430; and  Wakkar & Anr. v. State of Uttar Pradesh, (2011)  

3 SCC 306).

 27.   No  presumption  could  be  drawn  on  the  issue  of  last  seen  

together  merely on the fact  that Abdul Rajak (PW.2),  father of the  

deceased had stated that Sahanara Khatun had gone to pluck the jhinga  

and her dead body was recovered from there. The witnesses   merely  

stated that the accused was present in the close proximity of that area.  

That does not itself establish the last seen theory because none of the  

witnesses said that the accused and deceased were seen together.  Most  

of the witnesses had deposed that  the accused was having spade.  It  

may connect the appellant to the factum of digging the earth. A person  

going for catching fish normally does not take a spade with him.  

The nature of the admissibility of the facts discovered pursuant  

to the statement of the accused under Section 27 of Indian Evidence  

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Act, 1872 is very limited. If an accused deposes to the police officer  

the  fact  as  a  result  of  which  the  weapon  with  which  the  crime  is  

committed is discovered, and as a result of such disclosure, recovery of  

the weapon is made, no inference can be drawn against the accused, if  

there is no evidence connecting the weapon with the crime alleged to  

have been committed by the accused.  

Be  that  as  it  may,  the  spade  had  not  been  sent  for  chemical  

analysis as admitted by Digambar Mondal (PW.19), I.O. himself and  

there was no explanation furnished as for what reason it was not sent.  

In  case  of  circumstantial  evidence,  not  sending the  weapon used in  

crime  for  chemical  analysis  is  fatal  for  the  reason  that  the  

circumstantial evidence may not lead to the only irresistible conclusion  

that the appellant was the perpetrator of the crime and none else and  

that in the absence of any report of Serologist as to the presence of  

human blood on the weapon may make the conviction of the accused  

unsustainable. (Vide:  Akhilesh Hajam v. State of Bihar  (1995) Supp  

3 SCC 357).

There is no medical evidence or suggestion by any person as to  

the sexual assault on the deceased. Therefore, it merely remained the  

guesswork of  the  people  at  large.  Mere imagination that  such thing  

might have happened is not enough to record conviction.  

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28. This incident had occurred in a broad day light at 9.30 a.m. in  

the month of August in the agricultural field surrounded by agricultural  

field of others. Therefore,  the presence of a large number of persons in  

the close vicinity of the place of occurrence can be presumed and it is  

apparent also from the statement of Aliful Rahmal (PW.6). Thus,  had  

the deceased been with the appellant, somebody could have seen her at  

the place of occurrence. It cannot be a positive evidence as concluded  

by the courts below that none other than the appellant could commit  

her  murder  because  no  one  else  had  been  there  at  the  place  of  

occurrence. In fact, nobody had ever seen the deceased at the place of  

occurrence. Digging the earth by a single person to the extent that a  

dead body be covered by earth requires a considerable time and there  

was a possibility that during such period somebody could have seen the  

person indulged in any of these activities, though no evidence is there  

to that extent.  The circumstances from which the conclusion of guilt is  

to  be  drawn  in  such  a  case  should  be  fully  established.  The  

circumstances  concerned  “must  or  should”  and  “not  and  may  be”  

established.  In  the  instant  case,  the  circumstances  have  not  been  

established.   

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29. In view of the above, we are of the considered opinion that the  

courts below convicted the appellant on a mere superfluous approach  

without in depth analysis of the relevant facts.  

30. In the facts and circumstances of the case, the appeal succeeds  

and is allowed. The appellant is given benefit of doubt and acquitted of  

the charges of offences punishable under Sections 302 and 201 IPC.  

Appellant is in jail.  He be released forthwith unless his detention is  

required in any other case.  

                                                    …………….....................J.                                       (Dr. B.S. CHAUHAN)

………............................ J.          (SWATANTER KUMAR)  New Delhi,               June 14, 2011                

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