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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 2008

Prakash               .... Appellant(s)

Versus

State of Rajasthan     .... Respondent(s)

   WITH

CRIMINAL APPEAL NO. 27 OF 2008      

J U D G M E N T

P.Sathasivam,J.

1) These appeals are directed against the final judgment  

and order  dated 02.03.2006 passed by  the High  Court  of  

Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal  

No.  154  of  2002,  whereby  the  High  Court  dismissed  the  

appeal  filed  by  the  appellants  herein  and  confirmed  the  

order dated 31.01.2002 passed by the Additional Sessions  

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Judge, Barmer, Rajasthan in Sessions Case No. 28 of 1998 by  

which the appellants herein were convicted for the offence  

punishable under Sections 302, 364 and 120-B of the Indian  

Penal Code (in short “IPC”) and sentenced them to undergo  

imprisonment for life under Section 302 and to pay a fine of  

Rs.5000/- each.

2) Brief facts:

a) This is a case of kidnapping and murder of a 7 year old  

child out of enmity.   

b) On  16.04.1998,  Leeladhar  (PW-1)  lodged  a  report  at  

Police  Station,  Barmer  stating that  on 15.04.1998 his  son  

Kamlesh  aged  about  7  years  left  for  the  school  in  the  

morning but did not return home till evening at 7.00 p.m.  In  

pursuance of the said report, the police made a search.  On  

19.04.1998, on an information by Hansraj (PW-8), Khet Singh  

(PW-9) and Bheemaram (PW-11) that a dead body of a boy  

was  found  lying  on  the  hill  of  Sujeshwar  in  mutilated  

condition,   the police along with one Leeladhar (PW-1) went  

to the spot.  They found that some parts of the dead body  

were eaten by the animals. From the clothes, shoes, socks  

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and school bag, PW-1 identified the dead body as that of his  

son.   

c) On  19.04.1998,  another  report  of  kidnapping  and  

murder  was  lodged  by  Leeladhar  (PW-1)  suspecting  the  

involvement  of  Ramesh  S/o  Dashrath,  Prakash  s/o  

Gautamchand,  Ramesh @ Papiya S/o Bhanwar Lal,  Pannu,  

Inder  S/o  Murlidhar,  Ganesh  and  Pappu.   After  the  

investigation  and  recovery,  the  police  arrested  Prakash,  

Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a  

charge sheet under Sections 302, 364 and 120-B of IPC was  

filed against the accused persons.   

d) By order dated 31.01.2002 in Sessions Case No.28 of  

1998,  the Additional  Sessions  Judge,  Barmer  convicted  all  

the three accused persons for the offences punishable under  

Sections  302,  364  and  120-B of  IPC  and sentenced  them  

under Section 302, to undergo life imprisonment with a fine  

of Rs.5000/- each,  in default of payment of fine, further to  

undergo rigorous imprisonment for one year, under Section  

364, RI for 7 years with a fine of Rs.2000 each,  in default of  

payment  of  fine,  further  to  undergo  RI  for  6  months  and  

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under Section 120-B to undergo 7 years RI  with a fine of  

Rs.2000  each,  in  default  of  payment  of  fine,  further  to  

undergo 6 months RI.   

e) Challenging the order of conviction and sentence, the  

appellants filed appeal being D.B. Criminal Appeal No. 154 of  

2002 before the High Court.  By order dated 02.03.2006, the  

High  Court  dismissed  the  appeal  filed  by  the  appellants  

herein.

f) Aggrieved  by  the  said  order,  the  appellants  have  

preferred these appeals by way of special leave.

3) Heard Mr. Seeraj Bagga, learned Amicus Curiae for the  

appellants and Mr. Shovan Mishra, learned counsel for the  

respondent-State.

Discussion:

4) In the case on hand, the prosecution case rests solely  

on the basis of circumstantial evidence.  It was contended by  

the  learned  amicus  curiae  for  the  appellants  that  in  the  

absence of direct evidence, the slightest of a discrepancy,  

depicting the possibility of two views would exculpate the  

accused of guilt,  on the basis of benefit  of doubt.  Before  

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considering the materials placed by the prosecution and the  

defence, let us analyse the legal position as declared by this  

Court  on  the  standard  of  proof  required  for  recording  a  

conviction  on  the  basis  of  circumstantial  evidence.   In  a  

leading  decision  of  this  Court  in  Sharad  Birdhichand  

Sarda vs.  State of Maharashtra, (1984) 4 SCC 116, this  

Court elaborately considered the standard of proof required  

for  recording  a  conviction  on  the  basis  of  circumstantial  

evidence and laid down the golden principles of standard of  

proof  required  in  a  case  sought  to  be established on the  

basis of circumstantial evidence which are as follows:     

“153. A close analysis of this decision would show  that the following conditions must be fulfilled before a  case  against  an  accused  can  be  said  to  be  fully  established:

(1) the circumstances from which the conclusion of  guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that  the  circumstances  concerned  “must  or  should”  and  not  “may  be”  established.  There  is  not  only  a  grammatical but a legal distinction between “may be  proved” and “must be or should be proved” as was  held by this Court in Shivaji Sahabrao Bobade v. State  of  Maharashtra,(1973)  2  SCC  793 where  the  observations were made: [SCC para 19, p. 807):  

“Certainly, it is a primary principle that the accused  must be and not merely may be guilty before a court  can convict and the mental distance between ‘may be’  

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and ‘must be’ is long and divides vague conjectures  from sure conclusions.”

(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.

154. These five golden principles, if we may say so,  constitute the panchsheel of the proof of a case based  on circumstantial evidence.”

5) Though  learned  counsel  for  the  appellants  referred  

other  decisions,  since  the  above  principles  have  been  

followed in the subsequent decisions, we feel that there is no  

need to  deal  with  the same elaborately.   With  the above  

“five  golden  principles”,  let  us  consider  the  case  of  the  

prosecution and find out whether it satisfies all the tests.

6) The relevant and material circumstances heavily relied  

on by the prosecution are:

(i) The  deceased  was  last  seen  in  the  company  of  the  

appellants-accused.

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(ii) Recovery of incriminating articles in pursuance of the  

information given by the appellants.

(iii) Motive.

7) Learned  amicus  curiae  for  the  appellants  as  well  as  

learned counsel  for  the  respondent-State  took  us  through  

the  entire  evidence,  both  oral  and  documentary.   We  

scrutinized  the  same  and  also  considered  the  respective  

submissions made by them.  Before proceeding further, it is  

relevant to note that among these three accused, A-1 has  

not  challenged his  conviction and sentence.   The present  

appeals  are  filed  by  A-2  and  A-3,  wherein  we  refer  the  

appellants which relates to A-2 and A-3 alone.

8) The  first  witness  examined  by  the  prosecution  was  

Leeladhar (PW-1) – father of the deceased.  In his deposition,  

PW-1 deposed that he is residing at Hathidhora, near Shiv  

Temple, Barmer.  He had two sons and one daughter.  His  

one  son  died  prior  to  the  incident.   His  eldest  son  was  

Kamlesh,  thereafter  his  daughter  Khushbu  and  then  

youngest son Narendra.  He is doing the work of light fitting.  

He usually  goes to  work at  8.30-9.00 in  the morning and  

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returns back home at 8.00-8.30 in the night.  Amongst his  

three children, Kamlesh used to go to School.  He studied in  

Alesh Narayan Khatri  School.  On 15.04.1998, his son had  

gone to school at 11.30 a.m.  At that time, son of Peetamber  

accompanied him.  He further narrated that at 5.45 p.m.,  

when he was working at the place of Cobblers, he received  

the news that his son Kamlesh has not come back from the  

school.  On receipt of the said information, he went home  

where his wife informed that Kamlesh has not come back  

from the  school.   Thereafter,  he  went  to  the  school  and  

enquired from the school teacher, who told that Kamlesh had  

not come to school  on that day.   Thereafter,  he enquired  

from all  his relatives at Barmer and searched for  him but  

could not locate him.  Then he lodged a complaint with City  

Police Station stating that his child is  not traceable.   Five  

days thereafter at about 7 p.m. the police informed him that  

they found a dead body.  Thereafter,  he along with Premji  

Ghanshyamji  went  up  to  the  hills.   There  is  a  mountain  

behind the Shivji temple.  He was taken up to that mountain  

and  Premji,  Ghanshyamji  and  Moola  had  gone  to  the  

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mountain top where the dead body was lying.  On seeing the  

dead body, all the three came to C.I. Sahib and told that it  

was the dead body of his son Kamlesh.  During night, it was  

not possible to lift the dead body, therefore, next morning he  

again went to that place and collected the dead body of his  

son tied in a cloth and brought the same to his home and  

buried it.   He also stated that the right hand of the dead  

body was cut and the same was missing.  The head of the  

dead body was also missing.  There was a white shirt with  

black spots, black pant, black belt and black shoes put on  

the dead body.  There was also a school bag with the dead  

body, which was of his son Kamlesh.  The clothes worn on by  

the dead body was also of his son.   

9) He  further  narrated  that  on  the  second  day  after  

missing of his son, suspicion rose on Pappu who had gone to  

Delhi.  He further explained that three months prior to the  

incident,  Ramesh  Khatri  had  entered  into  the  house  of  

Indramal Brahmin, whose house is adjacent to his house.  In  

this regard he made a complaint to the parents of the girl as  

well  as  to  the  persons  of  the  locality.   The  girl  was  of  

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Indramal.  Then Ramesh put the poison packet in the house  

of  Indramal  over  the  wall.   Later  on,  the  daughter  of  

Indramal  died  by  consuming  that  poison.   Thereafter,  

Ramesh Khatri and Indramal Brahmin used to threaten him  

that they would take revenge of it and would abduct his son  

at the time of going to school.  Three months after the said  

threat, they committed the murder of his son after abducting  

him when he was on the way to school.  C.I. Sahib of police  

had  taken  away  the  clothes  in  his  presence  and  also  

collected pant with black belt,  a small  blood smeared shit  

with black spot design, two shoes and socks etc.  He lodged  

a  report  (Ex.P-01)  with  police  station  on  the  same  day  

stating that his child did not come back home from school.  

He also informed the police that the dead body of his son  

was  found  five  days  after  his  missing.   After  conducting  

inquest, the police handed over the dead body of his son.  

10) The next witness relied on by the prosecution is PW-7,  

mother of the deceased.  In her evidence, she deposed that  

she had three children.   The name of  the third child  was  

Kamlesh.  She narrated that about 14 months ago, she had  

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sent Kamlesh to school.  On the relevant date, when she was  

standing outside her house, the accused persons,  namely,  

Pappu,  Ramesh  and  Prakash  present  in  the  court  were  

standing at the shop of Pappu.  Amongst them, Pappu went  

to his house and brought scooter and went on the scooter in  

the same direction in which Kamlesh and Santosh had gone.  

Thereafter, she went inside her home.  At the relevant time,  

her husband was doing the work of light fitting and he used  

to go to work spot at 9 ‘O Clock in the morning return home  

at 8 ‘O Clock in the evening.  On the relevant date, when he  

returned home, she informed him that their son Kamlesh had  

not come back from the school.   Thereafter,  her husband  

PW-1  went  in  search  of  Kamlesh  along  with  her  brother  

Prem.  She also narrated the incident about Ramesh that 12  

months prior from the date of her missing of her son, at 11 O  

clock, she had seen the accused Ramesh entering the house  

of  Indrammal  which  is  close  to  her  house.   Ramesh  had  

relationship  with  the  daughter  of  Indrammal,  namely,  

Pappuni.  The said Ramesh used to enter their house even  

during night.  She informed the same to Indrammal’s wife.  

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She also disclosed this fact to other neighbours.  According  

to her, on coming to know of the said incident, Indrammal  

and his sister beat her for which she had lodged a complaint  

with the police due to which they threatened that they would  

take  revenge  of  it.   One  month  after  the  said  incident,  

Pappuni  died  by  consuming  poison  and,  thereafter,  the  

accused Ramesh used to quarrel with her and many times  

threatened her.  She also reported the matter to the police.  

With  the  assistance  of  the  local  people,  the  matter  was  

compromised with him.  However, she complained that after  

compromise, her son Kamlesh was missing and subsequently  

murdered.  She narrated the motive for killing of her son by  

the accused persons.  She also asserted that Pappu, Ramesh  

and Prakash had made her son disappear and according to  

her,  they  did  it  on  account  of  the  death  of  Pappuni  and  

thereafter, murdered her son.   

11) Apart from the evidence of PWs 1 and 7 with regard to  

the last seen theory, prosecution examined three persons,  

namely, Moolchand (PW-3), Gautam Chand (PW-4) both are  

goldsmiths and Biglaram (PW-10).  In his evidence, PW-3 has  

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stated  that  he  was  known  to  Leeladhar,  Ramesh  and  

Prakash.  He further stated that on the date of the incident,  

in the afternoon at about 12 he had seen all  the accused  

persons moving towards Panchpati Circle Road on a scooter.  

He had also seen the son of Leeladhar sitting in between the  

three accused persons on the scooter.  Gautam Chand (PW-

4), who is also a goldsmith, in his evidence has stated that  

on the date of the incident at about 12.15 he had seen the  

accused  moving  in  a  scooter  along  with  the  small  boy.  

Though  both  PWs  3  and  4  did  not  identify  the  accused  

persons  in  the  identification  parade,  in  view  of  their  

assertion,  we  are  satisfied  that  the  prosecution  has  

succeeded  in  establishing  the  circumstance  of  last  seen  

theory.  

12) The  next  witness  relied  on  by  the  prosecution  to  

support  the  last  seen  theory  is  Bijlaram (PW-10).   In  his  

evidence,  he  stated  that  on  15.04.1998,  he  had  gone  to  

Sujesar  Hillock  for  collecting  firewood.   While  he  was  

returning on Gelu Road, he saw the accused along with a  

boy moving towards the Hillock.  The boy was wearing black  

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pant and white shirt and black shoes.  He further narrated  

that all the three accused and the child moved towards the  

Hillock.  He identified all the accused in the Court.  He also  

admitted that he was known to all the three accused persons  

and the child.  He was cross-examined at length but nothing  

was  elicited  disproving  his  statement  relied  on  by  the  

prosecution.  The prosecution very much relied on by PWs 3,  

4 and 10 to prove the last seen theory and the courts below  

rightly accepted their version.  

13) The analysis  of  the  above evidence  discussed so  far  

clearly  show  that  the  prosecution  has  succeeded  in  

establishing  that  the  relations  betweens  the  family  of  

Leeladhar and the appellants-accused were hostile.  In fact,  

Ramesh  Khatri,  one  of  the  accused  had  threatened  

Leeladhar  and  his  wife  of  finishing  their  family.   We  are  

satisfied that the prosecution has proved motive on the part  

of the appellants for committing the murder of Kamlesh, son  

of PWs 1 and 7.  

14) It  is  true  that  counsel  appearing  for  the  appellant  

pointed out the discrepancy in the evidence of PWs 11, 12,  

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16  and  21  about  the  condition  of  the  dead  body.   It  is  

relevant to point out that these prosecution witnesses are  

villagers  and  further  the  body  was  recovered  only  on  

20.04.1998 whereas the incident occurred on 15.04.1998.  In  

fact,  PWs 9 and 11 cattle  grazers  have deposed that  the  

dead body was partly eaten by dog.  In view of the same,  

merely  because  the  prosecution  witnesses  were  not  

consistent in describing the dead body of 14 year old boy,  

the entire prosecution case cannot be disbelieved.  

15) In the course of investigation and in pursuance of the  

information given by A-1, pant and shirt stained with blood  

of Ramesh were recovered from his house in the presence of  

PWs 21 and 23.  The pant and shirt were seized and sealed  

in a packet marked as S-8.  It is further seen that as per FSL  

report, Exh.P-86, the presence of blood on the pant and shirt  

are of human origin.  

16) In the light of the above discussion, we hold that the  

prosecution has established all the circumstances by cogent  

and  acceptable  evidence  and  if  we  consider  all  the  

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circumstances  it  leads  to  a  conclusion  that  it  was  the  

appellants/accused  who  kidnapped  and  committed  the  

murder of the deceased Kamlesh.  We are satisfied that the  

trial  Court  has  rightly  accepted  the  prosecution  case  and  

awarded life sentence which was affirmed by the High Court.  

We fully concur with the said conclusion.  Consequently, the  

appeals fail and the same are dismissed.          

………….…………………………J.                   (P. SATHASIVAM)    

       ………….…………………………J.                  (JAGDISH SINGH KHEHAR)   

NEW DELHI; MARCH 22, 2013.

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