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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.    595       OF 2014

[Arising out of Special Leave Petition (Crl.) No.3634 of  2013]

Kanhaiya Lal            …      Appellant(s)  

versus

State of Rajasthan                 …     Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

Leave granted.

1. This appeal is preferred against the judgment of  

the  High  Court  of  Judicature  for  Rajasthan  at  

Jodhpur, in D.B. Crl. Appeal No.515 of 2004.

2. The appellant herein Kanhaiya  Lal, is accused  

No.2 in Sessions Trial No.01 of 2004   on the file

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of  Additional  District  &  Sessions  Judge,  Fast  

Track No.1, Dungarpur, -

3. and he was tried for the alleged offences under  

Section  302  and 201 IPC  and on  being  found  

guilty was convicted and sentenced to undergo  

imprisonment for life and to pay fine of Rs.1000  

in default to undergo simple imprisonment for 6  

months for  the offence under Section 302 IPC  

and  further  sentenced  to  undergo  3  years  

Rigorous  Imprisonment  and  to  pay  a  fine  of  

Rs.500  in  default  to  undergo  simple  

imprisonment  for  3  months  for  the  offence  

under Section 201 IPC, and the sentences were  

ordered  to  run  concurrently.   Accused  No.1  

Raman  Lal  was  also  tried  along  with  accused  

No.2 Kanhaiya Lal for the alleged offence under  

Section 201 IPC and was acquitted of the said  

charge.   Challenging  the  conviction  and

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sentence, accused No.2 Kanhaiya Lal preferred  

the  appeal  in  D.B.  Criminal  Appeal  No.515  of  

2004  and  the  High  Court  by  judgment  dated  

17.4.2012  dismissed  the  appeal.   Challenging  

the  same  the  appellant  Kanhaiya  Lal  has  

preferred the present appeal.

4. The case of the prosecution in a nut shell is as  

follows:  PW10  Smt.  Shantibai   is  the  wife  of  

deceased  Kala.  PW3  Kama  is  the  younger  

brother  of  Kala.   Accused Kanhaiya  Lal  is  the  

brother of PW4 Hurma.  They are all residents of  

Gesu  ka  bagh  village.  PW4  Hurma  returned  

home at 8.00 p.m. on 31.8.2003. At about 9.00  

p.m. accused Kanhaiya Lal  and Kala came to his  

house  and  demanded  Daru  and  PW4  Hurma  

gave one bottle and received a sum of Rs.15/-  

from the accused Kanhaiya Lal.  Thereafter, both

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of them went away together. Kala did not return  

home in the night and in the morning PW10 his  

wife Shantibai along with PW11 Dhula went to  

the house of PW 4 Hurma and inquired about her  

husband.  PW4  Hurma  told  them  about  Kala  

visiting his house with Kanhaiya Lal the previous  

night  and  their  returning  together  from  his  

house. PW 10 Shanti Bai and PW 11 Dhula went  

to the house of the accused Kanhaiya Lal and he  

was not found there.  PW10 -

5. Shantibai lodged a report at the Police Station  

about the missing of her husband.  The villagers  

found Muffler, shoes and tobacco pouch floating  

in the well of accused Kanhaiya Lal.  PW3 Kama  

lodged Ex.P10 written report  before  the Police  

Station Bichhiwara. Police took out the body of  

Kala  from  the  well  and  a  case  came  to  be  

registered in Ex.P10 FIR No.230 of 2003 for the

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alleged offences under Section 302 and 201 IPC.  

PW12  Fateh  Singh  Chauhan  took  up  the  

investigation.  Ex.P11 is the spot map.  Ex.P13 is  

the  Panchayatnama.   Ex.P14  is  the  seizure  

Memo of shoes, Muffler and tobacco pouch.

6. PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal  

conducted  the  post-mortem  and  found  the  

following injuries:

“External injuries:

1.  Abrasion 5 x 2 cm on the left side of the neck.

2.  Bruise 3 x 2 cm on the parietal  aspect of the  neck in the right side and all  these injuries were  anti mortem.

On the internal examination he found the fracture  of Hyoid bone anteriorly.”

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They expressed opinion that the cause of death of Mr.  

Kala is due to neurogenic shock as well as haemorrhagic  

shock and the time of death was from 36 to 48 hours  

prior to the post-mortem.

Ex.P10 is the post-mortem report issued by them.

7. The accused were arrested and on completion of  

the investigation final report came to be filed.  In  

order  to  prove  the  case,  the  prosecution  

examined  15  witnesses  and  marked  26  

documents.  No witness was examined on the  

side  of  the  defence.   The  accused  were  

questioned under Section 313 Cr.P.C. and their  

answers  were  recorded.  The  trial  court  found  

accused No. 2 Kanhaiya Lal guilty of the charges  

under Sections 302 and 201 IPC and sentenced  

him  as  narrated  above.  The  trial  court  found

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accused  No.1  Ramam  Lal  not  guilty  of  the  

charge -

8. and acquitted him.  Accused No.2 Kanhaiya Lal  

preferred  the  appeal  and  the  High  Court  

dismissed  the  appeal  by  confirming  the  

conviction  and  sentence  imposed  on  him.  

Aggrieved  by  the  same  he  has  preferred  the  

present appeal.

9. We  heard  the  learned  counsel  appearing  on  

behalf of the appellant and the learned counsel  

appearing for the respondent State.

10. The  prosecution  case  is  that  the  

appellant/accused Kanhaiya  Lal  committed the  

murder of Kala by strangulation and threw the  

body  in  the  well.   Nobody  witnessed  the  

occurrence and the case rests on circumstantial

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evidence.  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 -

11. innocence  of  the  accused  or  the  guilt  of  any  

other person.  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.

12. The prosecution in order to prove its case mainly  

relied on the following circumstances :

i) The death of Kala was homicidal in nature;

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ii) Kala was last seen with accused Kanhaiya Lal  when both of   them   visited   the   house  of  PW4  Hurma   on   the   occurrence night.

iii) Kala  objected to the illicit intimacy of accused  Kanhaiya  Lal   with  the wife of  his  younger  brother  PW3  Kama  and   that  led  to  the  occurrence.     

13. The autopsy on the body of Kala was conducted  

by  two  doctors  and  one  of  them  namely  Dr.  

Rajesh  Sharma  has  been  examined  as  PW1.  

According to him two -

14. external injuries were found on the neck namely  

an abrasion 5x2 cm on the left side of the neck  

and bruise 3x2 cm on the parietal aspect of the  

neck  in  the  right  side  and  on  its  internal  

examination he noticed the fracture of vertebrae  

c3  &  c4  and  the  fracture  of  Hyoid  bone  

anteriorly and all the injuries were anti mortem.  

It  is opined that the cause of death of Kala is

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due to neurogenic shock as well as hemorrhagic  

shock.  Ex.10  is  the  post  mortem  report.  

Accepting the medical evidence it is clear that  

Kala suffered a homicidal death.

15. The  primary,  if  not  the  solitary  basis  of  the  

conviction of the appellant is on the theory of  

last  seen,  as  the  deceased  Kala  along  with  

accused Kanhaiya Lal visited the house of PW4  

Hurma at 9.00 pm on 31.8.2003.  PW4 Hurma  

did not fully support the prosecution case and  

was  declared   hostile.   In  his  examination-in-

chief he has stated that on the occurrence night  

he returned home at 8.00 pm and about 9.00  

pm accused Kanhaiya Lal and -

16. Kala came to his house and demanded Daru and  

he  gave  one  bottle  and  received  a  sum  of  

Rs.15/- from the accused Kanhaiya Lal and they

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returned  together  and  the  next  day  morning  

wife of Kala PW10 Shantibai came and inquired  

him  about  her  husband  Kala  and  he  told  her  

about the visit of Kala with accused Kanhaiya Lal  

to  his  house  the  previous  night.   It  is  the  

testimony of PW10 Shantibai that her husband  

Kala  did  not  return  home  on  the  occurrence  

night and in the morning she went to the house  

of PW4 Hurma and inquired and came to know  

from him about the visit of her husband along  

with accused Kanhaiya Lal to his house in the  

night.   Though  PW4  Hurma  was  treated  as  

hostile witness,  the above testimony of him is  

corroborated  by  the  testimony  of  PW10  

Shantibai.

17. The circumstance of last seen together does not  

by itself  and necessarily  lead to  the inference

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that  it  was  the  accused  who  committed  the  

crime.   There  must  be  something  more  

establishing connectivity between the -

18. accused and the crime.  Mere non-explanation  

on the part of the appellant, in our considered  

opinion,  by itself  cannot  lead to  proof  of  guilt  

against the appellant.

19. The  alleged  illicit  intimacy  of  the  accused  

Kanhaiya Lal with Kamli, wife of PW3 Kama, is  

said  to  be  the  cause  for  the  occurrence.  

According to PW3, his wife Kamli  left him four  

years back and is residing with her parents in  

Sanchiya  village.  PW 10  Shantibai  also  in  her  

testimony  has  confirmed  that  Kamli  has  been  

living  in  village  Sanchiya  for  4-5  years.   It  

reveals that they were not living together for a  

number of years.  It is the further testimonty of

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PW 3 Kama that he has never seen Kamli and  

accused Kanhaiya Lal together and no person in  

the village told him so and it is only his brother  

Kala who informed him about the illicit intimacy  

between them.  In this context it is relevant to  

point  out  that  wife  of  Kala  namely  PW10  

Shantibai in her testimony has not alleged  any  

illicit  relationship  between  Kamli  and  accused  

Kanhaiya Lal.  In -

20. such circumstances it is doubtful as to whether  

there was any illicit intimacy between them as  

alleged.  Further PW3 Kama and PW10 Shantibai  

have  categorically  stated  in  their  testimonies  

that there was no dispute between the deceased  

Kala  and  accused  Kanhaiya  Lal  and  they  had  

cordial relationship.  Thus the motive alleged by  

the prosecution that Kala, as elder of the family  

dissuaded  accused  Kanhaiya  Lal  to  sever  his

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illicit relationship with his sister-in-law Kamli had  

triggered the murder, is not established.

21. The theory of last seen – the appellant having  

gone with the deceased in the manner noticed  

hereinbefore,  is  the  singular  piece  of  

circumstantial  evidence  available  against  him.  

The  conviction  of  the  appellant  cannot  be  

maintained merely on suspicion, however strong  

it  may  be,  or  on  his  conduct.   These  facts  

assume  further  importance  on  account  of  

absence of proof of motive particularly when it is  

proved that there was cordial -

22. relationship  between  the  accused  and  the  

deceased  for  a  long  time.   The  fact  situation  

bears great similarity to that in  Madho Singh  

vs. State of Rajasthan (2010) 15 SCC 588.

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23. In view of the aforesaid circumstances, it is not  

possible to sustain the impugned judgment and  

sentence.   This  appeal  is  allowed  and  the  

conviction  and  sentence  imposed  on  the  

appellant/accused  Kanhaiya  Lal  are  set  aside  

and  he  is  acquitted  of  the  charge  by  giving  

benefit of doubt.  He is directed to be released  

from  the  custody  forthwith  unless  required  

otherwise.

…………………………….J. (T.S. Thakur)

…………………………J. (C. Nagappan)

New Delhi; March  13, 2014