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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 413 OF 2007

NIZAM & ANR.                                             ...Appellants

Versus

STATE OF RAJASTHAN          ...Respondent

J U D G M E N T

R. BANUMATHI, J  .                    

This  appeal  assails  the  correctness  of  the

judgment  dated  01.07.2005  passed  by  the  High  Court  of

Judicature  at  Rajasthan  Jaipur  Bench  in  Criminal  Appeal

No.1248  of  2002,  whereby  the  High  Court  confirmed  the

conviction of the accused-appellants under Sections 302 and

201 IPC and sentence of life imprisonment imposed on each

of them with a fine of Rs.2,000/- with default clause and also

two years rigorous imprisonment with a fine of Rs.500/- with

default clause respectively.  

2. Case  of  the  prosecution  is  that  deceased-Manoj

was the helper on the truck No.MP-07-2627 and had gone to

Pune and thereafter  to  Barar  alongwith  his  first  driver  Raj

Kumar   (PW-2) and second driver Ram Parkash (PW-1) and

from Barar they loaded the truck with pipes for destination to

Ghaziabad  on  23.01.2001.   Accused-appellants  Nizam  and

Shafique who were the driver and cleaner respectively on the

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truck  No.DL-1GA-5943  also  loaded  their  truck  with  pipes

from the same company on the same day at Barar and started

for Ghaziabad alongwith truck No.MP-07-2627.  During this

period  drivers  and  cleaners  of  both  the  trucks  developed

acquaintance  with  each  other.   While  on  the  way  to

Ghaziabad, driver Raj Kumar (PW-2) of truck No.MP-07-2627

got  into  quarrel  with  some local  persons  and consequently

Barar  police  detained  him alongwith  his  truck.  Faced with

such situation, Raj Kumar (PW-2) instructed his second driver

Ram Parkash (PW-1) to hand over the amount of Rs.20,000/-

to  Manoj  with  instructions  to  give  the  money to  the  truck

owner.   Accordingly,  Manoj  left  for  Gwalior  with  accused

persons by the truck No.DL-1GA-5943 on 23.01.2001.  

3. Dead  body  of  deceased-Manoj  was  found  on

26.01.2001 under suspicious circumstances in a field  near

village  Maniya.  On  26.01.2001  at  about  3.00  O’clock,  one

Koke Singh (PW-13) went to collect the fodder and found a

dead body lying in the field and the same was informed to

Shahjad      Khan (PW-4).  Based on the written information

by  Shahjad  Khan  (PW-4),  case  was  registered  in  FIR

No.16/2001 under Sections 302 and 201 IPC on 26.01.2001

at  Thana-Maniya,  District  Dholpur.  Gullu

Khan(PW-16)-Investigating Officer  seized the dead body and

prepared  a  Panchnama.   One  bilty    (Ex.  P17)  of  Uttar

Pradesh, Haryana Roadlines (Pune) and one receipt (Ex. P18)

of Madhya Pradesh Government, Shivpuri Naka pertaining to

truck  No.  DL-1GA-5943 were  recovered  from the  pocket  of

trouser of deceased-Manoj and in the said bilty     (Ex.P-17),

name  of  the  driver  was  mentioned  as  Nizam  and  truck

No.DL-1GA-5943 and some phone numbers.   Based on the 2

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clues obtaining in the bilty, accused Nizam and Shafique were

arrested on 27.01.2001 and the truck No.DL-1GA-5943 was

recovered.  After  due  investigation,  chargesheet  was  filed

against the appellants-accused under Sections 302 and 201

IPC.   

4. To bring home the guilt of the accused-appellants,

prosecution  has  examined  twenty  one  witnesses.

Incriminating  evidence  and  circumstances  were  put  to

accused-appellants  under  Section  313  Cr.  P.C.  and  the

accused denied all  of  them and accused stated that  Manoj

had never travelled in their  truck DL-1GA-5943. Additional

Sessions Judge, Fast Track Court No.2, Dholpur held that the

appellants-accused committed murder of deceased-Manoj to

grab  Rs.20,000/-  and  the  prosecution  has  established  the

circumstances  proving  the  accused-appellants  guilty  under

Sections 302 and 201 IPC and sentenced each of  them to

undergo  life  imprisonment  with  a  fine  of  Rs.2,000/-  with

default  clause and two years rigorous imprisonment with a

fine of Rs.500/- with default clause respectively.  Aggrieved by

the verdict of conviction, appellants-accused preferred appeal

before  the  High  Court  of  Rajasthan,  which  vide  impugned

judgment  dismissed  the  appeal  thereby  confirming  the

conviction  of  the  accused-appellants  and  also  respective

sentence of imprisonment and fine amount imposed on each

of them. Being aggrieved, the appellants have preferred this

appeal.

5. Learned counsel for the appellants submitted that

the “last seen theory” is not applicable to the instant case as

there were serious contradictions as to the date and time in

which Manoj allegedly left with the appellants. It was further 3

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argued that the amount of Rs.20,000/-  which was allegedly

taken  by  deceased-Manoj  was  not  recovered  from  the

possession of  the appellants. Learned counsel submitted that

the  circumstances  relied  upon  by  the  prosecution  are  not

firmly  established  and  the  circumstances  do  not  form  a

complete chain establishing the guilt of the accused and the

appellants are falsely roped in.

6. Per  contra,  learned  counsel  for  the

respondent-State  contended that  the  deceased having huge

amount  of  money  travelled  in  the  company  of  the

accused-appellants and when the prosecution has established

that the deceased-Manoj was last seen alive in the company of

the accused-appellants, it was for the accused to explain as to

what happened to  the deceased and in the absence of  any

explanation  from  the  accused  and  based  on  the

circumstantial  evidence  courts  below  rightly  convicted  the

appellants  and  the  impugned  judgment   warrants  no

interference.

7. We  have  considered  the  rival  contentions  and

perused the impugned judgment and material on record.

8. Case of  the prosecution is entirely based on the

circumstantial  evidence.  In  a  case  based on circumstantial

evidence, 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, forming a chain 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 totally inconsistent with

his evidence.   4

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9. The principle of circumstantial evidence has been

reiterated by this Court in a plethora of cases. In  Bodhraj @

Bodha And Ors. vs. State  of Jammu & Kashmir,(2002) 8 SCC

45, wherein this court quoted number of judgments and held

as under:-

“10. 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 (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316,  Earabhadrappa v.  State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and  Ashok  Kumar  Chatterjee v.  State  of  M.P.,  1989 Suppl.  (1)  SCC 560) 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 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  home  the  offences  beyond  any  reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21)

“21. 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 Trimukh Maroti Kirkan vs. State of Maharashtra,

(2006) 10 SCC 681, this court held as under: 5

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“12. In the case in hand there is no eyewitness of  the occurrence  and  the  case  of  the  prosecution  rests  on circumstantial evidence.  The normal principle in a case based  on  circumstantial  evidence  is  that  the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those  circumstances  should  be  of  a  definite  tendency unerringly pointing towards the guilt of the accused; that 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  they  should  be incapable  of  explanation on any  hypothesis  other  than that  of  the  guilt  of  the  accused  and  inconsistent  with their innocence.”

The same principles were reiterated in Sunil Clifford Daniel vs.

State  of  Punjab, (2012)  11  SCC  205,  Sampath  Kumar vs.

Inspector of Police, Krishnagiri  (2012) 4 SCC 124 and  Mohd.

Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and

a number of other decisions.

11. By perusal of the testimonies of PWs 1, 2 and 3, it

is  seen that  PW1-Ram Parkash and PW2-Raj  Kumar  along

with deceased cleaner Manoj got their truck No. MP-07-2627

loaded  with  pipes  at  Barar  and  at  the  same  time  another

truck  No.DL-1GA-5943 of the accused Nizam and Shafique

was also loaded with pipes. On the way to Ghaziabad, quarrel

took place between the drivers of the truck No. MP 07-2627

and some local persons and Raj Kumar (PW-2) was detained

by  the  police.   Raj  Kumar  (PW-2)  instructed  Ram Parkash

(PW-1) to hand over the amount of Rs.20,000/- to Manoj with

instructions to give this money to the truck owner and he was

sent  along  with  accused  Nizam and  Shafique  in  the  other

truck DL-1GA-5943.  PWs 1 and 2 further stated that after

being released from the police station, they went to Gwalior

and  enquired  about  Manoj  from their  owner  Rajnish  Kant 6

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(PW-3)  who  had  no  knowledge  about  Manoj.   In  the

meanwhile, based on the bilty and the receipt recovered from

the pocket  of  the trouser of  deceased-Manoj,  Maniya police

contacted PW-3-owner of the truck and on being so contacted,

PWs 1 to 3 went to Maniya Police Station and identified the

deceased  person  as  Manoj  through  his  clothes  and

photographs.    

12. Based  on  the  evidence  of  PWs  1  and  2,  courts

below expressed the view that motive for murder of Manoj was

the  lust  for  the  money  which  Manoj  was  carrying.  Courts

below  based  the  conviction  of  the  appellants  on  the

circumstances “last seen theory” as stated by PWs 1 and 2

along with recovery of bilty and receipt by PW-6 on which the

name  of  the  accused  person  (Nizam)  was  printed.  The

appellants are alleged to have committed murder of Manoj for

the  amount  which  Manoj  was  carrying.   But  neither  the

amount of Rs.20,000/- nor any part of it was recovered from

the appellants.  If the prosecution is able to prove its case on

motive,  it  will  be  a  corroborative  piece  of  evidence  lending

assurance  to  the  prosecution  case.  But  even  if  the

prosecution has not been able to prove the motive, that will

not be a ground to throw away the prosecution case.  Absence

of proof of motive only demands careful scrutiny and deeper

analysis of evidence adduced by the prosecution.   

13. Apart from non-recovery of the amount from the

appellants, serious doubts arise as to the motive propounded

by the prosecution.  By perusal of the evidence of Sudama

Vithal Darekar (PW-17) it is clear that driver Raj Kumar came

to the police station complaining that by five to seven people

of other vehicle have robbed him and the money. However, 7

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after investigation it was discovered that Raj Kumar gave false

information and a case under Section 182 IPC was registered

against him. Raj Kumar was produced before the Court and

court imposed fine of Rs.1,000/- on him.  This fact was also

verified  from  PW-16-investigating  officer  during  his

cross-examination.

14. Courts  below  convicted  the  appellants  on  the

evidence of PWs 1 and 2 that deceased was last seen alive

with the appellants on 23.01.2001.  Undoubtedly, “last seen

theory” is  an important  link in the chain of  circumstances

that would point towards the guilt of the accused with some

certainty.  The “last seen theory” holds the courts to shift the

burden of  proof  to the accused and the accused to  offer  a

reasonable  explanation  as  to  the  cause  of  death  of  the

deceased.  It is well-settled by this Court that it is not prudent

to base the conviction solely on “last seen theory”. “Last seen

theory” should be applied taking into consideration the case

of  the prosecution in its  entirety  and keeping in mind the

circumstances that precede and follow the point of being so

last seen.

15. Elaborating  the  principle  of  “last  seen  alive”  in

State of  Rajasthan vs.  Kashi Ram, (2006) 12 SCC 254,  this

Court held as under:-  

“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon  him.  Thus,  if  a  person  is  last  seen  with  the deceased,  he must offer  an explanation as to how and when  he  parted  company.  He  must  furnish  an explanation which appears  to  the  court  to  be  probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation

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on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the  Evidence  Act.  In  a  case  resting  on  circumstantial evidence  if  the  accused  fails  to  offer  a  reasonable explanation in discharge of  the burden placed on him, that  itself  provides  an  additional  link  in  the  chain  of circumstances proved against him. Section 106 does not shift  the  burden  of  proof  in  a  criminal  trial,  which  is always upon the prosecution. It lays down the rule that when the accused does not  throw any light  upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the  chain.  The  principle  has  been  succinctly  stated  in Naina Mohd., Re. (AIR 1960 Mad 218)”

The above judgment was relied upon and reiterated in  Kiriti

Pal vs. State of West Bengal, (2015) 5 Scale 319.  

16. In the light of the above, it is to be seen whether in

the facts and circumstances of this case, whether the courts

below were right in invoking the “last seen theory.”  From the

evidence discussed above, deceased-Manoj allegedly left in the

truck  DL-1GA-5943  on  23.01.2001.   The  body  of

deceased-Manoj  was  recovered  on  26.01.2001.  The

prosecution  has  contended  the  accused  persons  were  last

seen with the deceased but the accused have not offered any

plausible,  cogent  explanation  as  to  what  has  happened  to

Manoj. Be it noted, that only if the prosecution has succeeded

in proving the facts by definite evidence that the deceased was

last seen alive in the company of the accused, a reasonable

inference could be drawn against the accused and then only

onus can be shifted on the accused under Section 106 of the

Evidence Act.

17. During  their  questioning  under  Section  313

Cr.P.C.,  the  accused-appellants  denied  Manoj  having

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travelled in their truck No.DL-1GA-5943.  As noticed earlier,

body of Manoj was recovered only on 26.01.2001 after three

days.  The gap between the time when Manoj is alleged to

have left in the truck     No.DL-1GA-5943 and the recovery of

the body is not so small,  to draw an inference against the

appellants.  At  this  juncture,  yet  another  aspect  emerging

from the evidence needs to be noted.  From the statement

made by Shahzad Khan (PW-4) the internal organ (penis) of

the deceased was tied with rope and blood was oozing out

from his nostrils.  Maniya village, the place where the body of

Manoj  was  recovered  is  alleged  to  be  a  notable  place  for

prostitution  where  people  from  different  areas  come  for

enjoyment.      

18. In view of the time gap between Manoj left in the

truck and the recovery of  the body and also the place and

circumstances in which the body was recovered, possibility of

others  intervening  cannot  be  ruled  out.  In  the  absence  of

definite evidence that appellants and deceased were last seen

together and when the time gap is long, it would be dangerous

to come to the conclusion that the appellants are responsible

for the murder of Manoj and are guilty of committing murder

of Manoj.   Where time gap is long it would be unsafe to base

the conviction on the “last seen theory”; it is safer to look for

corroboration  from  other  circumstances  and  evidence

adduced by the prosecution. From the facts and evidence, we

find no other corroborative piece of evidence corroborating the

last seen theory.

19. In  case  of  circumstantial  evidence,  court  has  to

examine the entire evidence in its entirety and ensure that the

only inference that  can be drawn from the evidence is  the 1

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guilt of the accused.  In the case at hand, neither the weapon

of murder nor the money allegedly looted by the appellants or

any other material was recovered from the possession of the

appellants.   There  are  many  apparent  lapses  in  the

investigation  and  missing  links:–(i)  Non-recovery  of  stolen

money; (ii)  The weapon from which abrasions were caused;

(iii)  False  case  lodged  by  PW-2  alleging  that  he  was  being

robbed by some other miscreants;   (iv) Non-identification of

the dead body and (v) Non-explanation as to how the deceased

reached  Maniya  village  and  injuries  on  his  internal  organ

(penis).   Thus  we  find  many  loopholes  in  the  case  of  the

prosecution.  For establishing the guilt  on the basis of  the

circumstantial  evidence,  the  circumstances  must  be  firmly

established  and  the  chain  of  circumstances  must  be

completed  from  the  facts.   The  chain  of  circumstantial

evidence  cannot  be  said  to  be  concluded  in  any  manner

sought to be urged by the prosecution.

20. Normally, this Court will not interfere in exercise

of its powers under Article 136 of the Constitution of India

with the concurrent findings recorded by the courts below.

But  where  material  aspects  have  not  been  taken  into

consideration  and  where  the  findings  of  the  Court  are

unsupportable  from  the  evidence  on  record  resulting  in

miscarriage of justice, this Court will certainly interfere.  The

“last seen theory” seems to have substantially weighed with

the  courts  below and the  High Court  brushed aside many

loopholes in the prosecution case.  None of the circumstances

relied upon by the prosecution and accepted by the courts

below  can  be  said  to  be  pointing  only  to  the  guilt  of  the

appellants  and  no  other  inference.  If  more  than  one 1

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inferences can be drawn, then the accused must have the

benefit of doubt.  In the facts and circumstances of the case,

we are satisfied the conviction of  the appellants  cannot be

sustained and the appeal ought to be allowed.    

21. The  conviction  of  the  appellants  under  Sections

302 and 201 IPC is set aside and the appeal is allowed. The

appellants are in jail and they are ordered to be set at liberty

forthwith if not required in any other case.     

………………………J.          (DIPAK MISRA)

………………………J.         (R. BANUMATHI)

New Delhi; September 4, 2015  

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