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      REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.928 OF 2009

Rishipal …Appellant

Versus

State of Uttarakhand …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This appeal arises out of a judgment and order dated  

27th August, 2008 passed by the High Court of Uttarakhand  

at Nainital whereby Criminal Appeal No.298 of 2001 filed by  

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the appellant has been partly allowed. The High Court has  

while setting aside the conviction and sentence awarded to  

the appellant under Section 302 IPC upheld his conviction  

for  offences punishable under Sections 171, 201 and 420  

IPC and the sentence awarded by the trial Court for these  

offences.  The High Court has further convicted the appellant  

for  an  offence  punishable  under  Section  365  IPC  and  

sentenced  him  to  undergo  rigorous  imprisonment  for  a  

period of seven years on that count.   

2. The  facts  giving  rise  to  the  arrest  and  eventual  

conviction of the appellant have been set out by the High  

Court at length.  We need not, therefore, recapitulate the  

same  over  again  except  to  the  extent  it  is  absolutely  

necessary to do so for the disposal of this appeal.   Suffice it  

to  say  that  the appellant  according  to  the  prosecution  

dishonestly induced the complainant Dr. Mohd. Alam (P.W.2)  

at Dehradun to deliver his car bearing registration No.URM  

2348 and a sum of Rs.15,000/- and at about 1.30 p.m. on  

the  same  day  abducted  Abdul  Mabood,  brother  of  the  

complainant with the intention to commit his murder. The  

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prosecution case further is that sometime between 1.7.1987  

and 2.7.1987, Abdul Mabood was murdered near a canal on  

Kairana Panipat Road in District Panipat and with a view to  

cause disappearance of any signs of the crime committed by  

him threw the dead body of Abdul Mabood in the Canal.  A  

report for the alleged commission of offences under Sections  

406, 419, 420 and 365 IPC was lodged by Dr. Mohd. Alam  

on  6.7.1987  at  Police  Station  Dalanwala  based  on  which  

Crime  No.185/1987  was  registered  and  the  investigation  

undertaken by Muzaffar  Ali  -  Sub-Inspector,  examined as  

PW17 at the trial.  In the course of investigation the said  

witness took the appellant into custody, recovered the car  

bearing  Registration  No.U.R.M.2348  from  Panipat  and  

effected  seizure of  some letters  allegedly  written  by him.  

Further investigation of the case was then handed over to  

Mr.  J.P.  Sharma  (P.W.18)  who  completed  the  same  and  

submitted a charge sheet against the appellant for offences  

punishable under Sections 364, 302, 201, 420, 170 and 171  

I.P.C.

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3. The  appellant  was  in  due  course  committed  to  the  

Court  of  Sessions  to  face  trial  before  the  III  Additional  

Sessions Judge, Dehradun who framed charges against the  

appellant  to  which  the  appellant  pleaded  not  guilty  and  

claimed to be tried.  

4. At  the  trial  Court  the  prosecution  examined  P.W.  1  

Raees Ahmad, P.W.2 Dr. Mohd. Alam, also complainant in  

the case; P.W.3 Hari Om, P.W.4 Jiledar Singh, P.W.5 Hizfur  

Rahman  the  brother  of  Abdul  Mabood-deceased;  P.W.6  

Anees Ahmad, P.W.7 Akash Garg, P.W.8 Badloo Ram, P.W.9  

Jai Bhagwan, P.W.10 Ajit Chopra, and nine other witnesses  

including  P.W.17 Muzaffar Ali and P.W.18 J. P. Sharma who  

concluded the investigation and P.W.19 Ramanand Pandey,  

another Scientific Officer of Forensic Laboratory, Agra. The  

appellant examined D.W.1 Yashveer Singh, his brother and  

D.W.2 Constable Om Prakash, in his defence.

5. Appreciation of evidence thus assembled at the trial led  

the  trial  Court  to  the  conclusion  that  the  appellant  had  

committed  offences  punishable  under  the  provisions  with  

which he stood charged and accordingly sentenced him to  

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life imprisonment for the offence of murder besides a fine of  

Rs.3,000/-.  For the remaining offence he was sentenced to  

undergo  rigorous  imprisonment  ranging  between  two  

months to five years with the direction that all the sentences  

shall run concurrently.  

6. Aggrieved by the judgment and order passed by the  

trial  Court  the  appellant  preferred  an  appeal  to  the  High  

Court of Allahabad from where the same was transferred to  

the High Court of Uttarakhand at Nainital in terms of Section  

35  of  the  U.P.  Re-organisation  Act,  2000.  The transferee  

High Court allowed the appeal but only in part and to the  

extent  that  the  appellant  was  acquitted  of  the  charge  of  

murder while his conviction for offences under Sections 171,  

201 and 420 was maintained.  The High Court also altered  

the conviction from Section 364 IPC to Section 365 IPC and  

sentenced  him  to  undergo  rigorous  imprisonment  for  a  

period of seven years on that count.  The present appeal  

assails the correctness of the said order of the High Court.

7. When  this  appeal  came  up  for  hearing  before  S.B.  

Sinha  and  Cyriac  Joseph,  JJ.  on  24th October,  2008,  this  

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Court not only issued notice to the State in the appeal but  

also directed notice to the appellant to show cause why the  

order  passed  by  the  High  Court  acquitting  the  appellant  

under Section 302 may not be set aside. At this stage the  

appellant made a prayer for withdrawal of the SLP filed by  

him against his conviction which prayer was declined by this  

Court by order dated 5th January, 2009 on the ground that  

the Court had issued a show cause notice for reversal of the  

appellant’s acquittal under Section 302 IPC.

8. We have heard learned counsel for the parties at some  

length who have taken us through the evidence on record.  

The  only  question  that  was  argued  before  us  with  some  

amount of seriousness on both sides was whether the High  

Court was justified in acquitting the appellant of the charge  

of murder held proved against him by the trial Court.  There  

was no attempt made by the counsel for the appellant to  

question the correctness of the findings recorded by the trial  

Court  in  so far  as the commission  of  offences  punishable  

under other provisions of the IPC were concerned.  As seen  

above, the appellant had sought withdrawal of the SLP which  

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implied  that  he  did  not  question  the  correctness  of  the  

sentence  recorded  by  the  High  Court  in  so  far  as  other  

offences were concerned.  That prayer was rejected which  

effectively kept the SLP alive, but no serious attempt was  

made to pursue the challenge against the order passed by  

the High Court in so far as the conviction recorded by the  

said Court under other offences was concerned. We are not  

in  that  view  of  the  matter  called  upon  to  examine  the  

correctness  of  the  conviction  of  the  appellant  for  other  

offences.  Even otherwise the findings recorded by the trial  

Court  and affirmed by the  High Court  are  in  our  opinion  

supported  by  evidence  in  so  far  as  commission  of  other  

offences are concerned.  There is no miscarriage of justice in  

the  appreciation  of  the  evidence  or  recording  of  those  

finding to call for our interference.

9. Coming next to the question whether the prosecution  

has brought home the charge of murder levelled against the  

appellant, we must at the outset point out that the case is  

entirely  based  on  circumstantial  evidence.  No  direct  

evidence  has  been adduced to  prove  that  Abdul  Mabood,  

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whose  corpus delicti has not been recovered, was done to  

death, nor any evidence adduced to show where and when  

the same was disposed of by the appellant assuming that he  

had committed  the crime alleged against  him.   The legal  

position regarding production of corpus delicti is well settled  

by a long line of decisions of this Court.  We may briefly  

refer to some of those cases.  In Rama Nand and Ors. v.   

State of Himachal Pradesh (1981) 1 SCC 511, this Court  

summed up the legal position on the subject as:

“....…….In  other  words,  we would  take  it  that  the   corpus delicti, i.e., the dead-body of the victim was  not found in this case. But even on that assumption,   the  question  remains  whether  the  other   circumstances established on record were sufficient   to  lead  to  the  conclusion  that  within  all  human  probability, she had been murdered by Rama Nand   appellant?  It  is  true  that  one  of  the  essential   ingredients  of  the  offence  of  culpable  homicide   required to be proved by the prosecution is that the   accused caused the death" of the person alleged to   have been killed.

28. This means that before seeking to prove that   the accused is the perpetrator of the murder, it must   be  established  that  homicidal  death  has  been  caused. Ordinarily, the recovery of the dead-body of   the  victim  or  a  vital  part  of  it,  bearing  marks  of   violence, is sufficient proof of homicidal death of the   victim. There was a time when under the old English   Law, the finding of the body of the deceased was   held to be essential before a person was convicted of   committing  his  culpable  homicide.  "I  would  never   convict", said Sir Mathew Hale, "a person of murder   or manslaughter unless the fact were proved to be   

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done, or at least the body was found dead". This was   merely a rule of caution, and not of law. But in those   times when execution was the only punishment for   murder, the need for adhering to this cautionary rule   was  greater.  Discovery  of  the  dead-body  of  the  victim  bearing  physical  evidence  of  violence,  has   never been considered as the only mode of proving   the  corpus  delicti  in  murder.  Indeed,  very  many  cases are of such a nature where the discovery of   the dead-body is  impossible.  A blind adherence to   this old "body" doctrine would open the door wide   open for many a heinous murderer to escape with   impunity  simply  because  they  were  cunning  and  clever enough to destroy the body of their victim. In   the context of our law, Sir Hale's enunciation has to   be interpreted no more than emphasising that where  the dead-body of the victim in a murder case is not   found,  other  cogent  and  satisfactory  proof  of  the   homicidal death of the victim must be adduced by   the  prosecution.  Such proof  may be by the direct   ocular  account  of  an  eye-witness,  or  by  circumstantial evidence, or by both. But where the  fact of corpus delicti, i.e. 'homicidal death' is sought   to be established by circumstantial evidence alone,   the  circumstances  must  be  of  a  clinching  and  definitive  character  unerringly  leading  to  the   inference  that  the  victim  concerned  has  met  a  homicidal  death.  Even so,  this  principle  of  caution   cannot be pushed too far as requiring absolute proof.   Perfect proof is seldom to be had in this imperfect   world, and absolute certainty is a myth. That is why  under Section 3, Evidence Act, a fact is said to be   "proved", if the Court considering the matters before   it, considers its existence so probable that a prudent   man  ought,  under  the  circumstances  of  the   particular case, to act upon the supposition that it   exists.  The  corpus  delicti  or  the  fact  of  homicidal   death,  therefore,  can  be  proved  by  telling  and   inculpating  circumstances  which  definitely  lead  to   the conclusion that within all human probability, the   victim  has  been  murdered  by  the  accused   concerned….”

   (emphasis supplied)

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10. To the same effect is the decision in Ram Chandra &  

Ram Bharosey v. State of Uttar Pradesh AIR 1957 SC  

381, where this Court said:

“It is true that in law a conviction for an offence does   not necessarily depend upon the corpus delicti being   found.  There  may  be  reliable  evidence,  direct  or   circumstantial,  of  the  commission  of  the  murder   though the corpus delicti are not traceable.”

11. Reference may also be made to State of Karnataka v.  

M.V.  Mahesh (2003)  3  SCC  353 where  this  Court  

observed:

“It is no doubt true that even in the absence of the  corpus  delicti it  is  possible  to  establish  in  an  appropriate  case  commission  of  murder  on   appropriate  material  being  made  available  to  the   court. In this case no such material is made available   to the court.”

12. In  Lakshmi  and  Ors.  v.  State  of  Uttar  Pradesh  

(2002) 7 SCC 198 the legal position was reiterated thus :

“16. Undoubtedly,  the  identification  of  the  body,   cause of death and recovery of weapon with which   the injury may have been inflicted on the deceased  are some of the important factors to be established  by the prosecution in an ordinary given case to bring   home the charge of offence under Section 302 I.P.C.   This, however, is not an inflexible rule. It cannot be   held as a general and broad proposition of law that   where these aspects are not established, it would be  fatal to the case of the prosecution and in all cases   

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and eventualities, it ought to result in the acquittal of   those  who  may  be  charged  with  the  offence  of   murder.  It  would  depend  on  the  facts  and  circumstances of each case. A charge of murder may  stand  established  against  an  accused  even  in   absence of identification of the body and cause  the   death.”

13. In the absence of corpus delicti what the court looks for  

is clinching evidence that proves that the victim has been  

done to death.  If the prosecution is successful in providing  

cogent  and satisfactory  proof  of  the victim having  met  a  

homicidal death, absence of  corpus delicti  will not by itself  

be fatal to a charge of murder.  Failure of the prosecution to  

assemble such evidence will, however, result in failure of the  

most essential requirement in a case involving a charge of  

murder.  That is precisely the position in the case at hand.  

There is  no evidence either  direct  or  circumstantial  about  

Abdul Mabood having met a homicidal death.  The charge of  

murder levelled against the appellant, therefore, rests on a  

rather  tenuous  ground  of  the  two  having  been  last  seen  

together to which aspect we shall presently advert when we  

examine whether the two being last seen together is proved  

as a circumstance and can support a charge of murder.

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14. The second aspect to which we must straightaway refer  

is the absence of any motive for the appellant to commit the  

alleged murder of Abdul Mabood.  It is not the case of the  

prosecution  that  there existed  any enmity  between Abdul  

Mabood and the appellant nor is there any evidence to prove  

any such enmity.  All that was suggested by learned counsel  

appearing for  the State was that  the appellant  got  rid  of  

Abdul Mabood by killing him because he intended to take  

away the car  which  the complainant-Dr.  Mohd.  Alam had  

given to him. That argument has not impressed us.  If the  

motive  behind  the  alleged  murder  was  to  somehow take  

away the car, it was not necessary for the appellant to kill  

the deceased for the car could be taken away even without  

physically  harming  Abdul  Mabood.  It  was  not  as  though  

Abdul Mabood was driving the car and was in control thereof  

so that without removing him from the scene it was difficult  

for the appellant to succeed in his design. The prosecution  

case on the contrary is that the appellant had induced the  

complainant to part with the car and a sum of Rs.15,000/-.  

The appellant has been rightly convicted for that fraudulent  

act  which  conviction  we  have  affirmed.  Such  being  the  

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position, the car was already in the possession and control  

of the appellant and all that he was required to do was to  

drop Abdul Mabood at any place en route to take away the  

car which he had ample opportunity to do during all the time  

the two were together while visiting different places.  Suffice  

it to say that the motive for the alleged murder is as weak  

as it sounds illogical to us. It is fairly well-settled that while  

motive does not have a major role to play in cases based on  

eye-witness account of the incident, it assumes importance  

in cases that rest entirely on circumstantial evidence.  [See  

Sukhram v. State of Maharashtra (2007) 7 SCC 502,   

Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8   

SCALE  670,  Pannayar  v.  State  of  Tamil  Nadu  by   

Inspector  of  Police  (2009)  9  SCC  152]. Absence  of  

strong motive in the present case, therefore, is something  

that cannot be lightly brushed aside.   

15. Coming then to the circumstances which according to  

the  prosecution  prove  the  charge  of  murder  against  the  

appellant, all that we have is that the appellant and Abdul  

Mabood, the deceased, had left in a car bearing registration  

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No.URM  2348  from  No.1,  Circular  Road,  Police  Station  

Dalanwala,  Dehradun  and  that  on  2nd July,  1986  the  

appellant had gone to the house of one Akash Garg P.W.7  

accompanied by a boy whom the witness identified as the  

deceased-Abdul Mabood. The deposition of PW8 Badlu Ram,  

posted as a Peon at Naval Cinema, Panipat, is also to the  

same effect.  According to the said witness the appellant had  

gone to the cinema accompanied by a boy between 20-22  

years of age whom he recognised as the alleged deceased-

Abdul Mabood on the basis of a photograph shown to him at  

the trial. The only other evidence which has any relevance to  

the circumstances  that  led  to  the disappearance  of  Abdul  

Mabood is the deposition of Tejveer Singh P.W.11, resident  

of Budha Kheri, Panipat, a businessman by occupation, who  

claims to have seen the appellant with Abdul Mabood when  

the  two  visited  his  farm.  The  boy  was  identified  by  the  

witness by reference to a photograph shown to him as the  

alleged deceased-Abdul Mabood.  According to the witness  

the appellant had gone away with his companion boy and  

when  he  returned  at  night  he  was  all  alone.  He  also  

appeared troubled and his clothes were stained with dust  

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and sand.  The appellant asked for a towel to take a bath  

and explained that his car had broken down and while trying  

to put it in order his clothes got soiled. When the witness  

asked him about the boy accompanying the appellant the  

latter is alleged to have explained that he had stayed back  

with his friend. The deposition of PW10 Ajit Chopra who is  

also  a  resident  of  Panipat  proved  that  the  appellant  had  

visited his residence in the first week of July, 1987 and had  

left his car at Naval Talkies which was then brought to his  

factory by their driver Jai Bhagwan examined as PW9. The  

trial Court on the basis of the above evidence held that the  

deceased-Abdul Mabood had been taken by the appellant to  

Panipat and disposed of by him on the basis that the two  

were  last  seen  together.   The  trial  Court  had,  however,  

found no motive or evidence for the alleged murder of the  

deceased-Abdul Mabood.  The High Court took a contrary  

view and found that the charge of murder could not be held  

to be proved on the basis of the evidence on record.  The  

High Court was, in our opinion, correct in arriving at that  

conclusion.  It is true that the tell-tale circumstances proved  

on  the  basis  of  the  evidence  on  record  give  rise  to  a  

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suspicion  against  the  appellant  but  suspicion  howsoever  

strong is not enough to justify conviction of the appellant for  

murder. The trial Court has, in our opinion, proceeded more  

on  the  basis  that  the  appellant  may  have  murdered  the  

deceased-Abdul Mabood.  In doing so the trial  Court over  

looked the fact that there is a long distance between ‘may  

have’ and ‘must have’ which distance must be traversed by  

the prosecution by producing cogent and reliable evidence.  

No such evidence is unfortunately forthcoming in the instant  

case.  The legal position on the subject is well settled and  

does not require any reiteration.  The decisions of this Court  

have  on  numerous  occasions  laid  down  the  requirements  

that  must  be  satisfied  in  cases  resting  on  circumstantial  

evidence. The essence of the said requirement is that not  

only should the circumstances sought to be proved against  

the accused be established beyond a reasonable doubt but  

also that such circumstances form so complete a chain as  

leaves  no  option  for  the  Court  except  to  hold  that  the  

accused is guilty of the offences with which he is charged.  

The disappearance of deceased-Abdul Mabood in the present  

case is not explainable as sought to be argued before us by  

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the prosecution only on the hypothesis that  the appellant  

killed him near some canal in a manner that is not known or  

that the appellant disposed of his body in a fashion about  

which the prosecution has no evidence except a wild guess  

that  the body may have been dumped into  a canal  from  

which it was never recovered.    

16. In  Mohibur  Rahman  and  Anr. v. State  of  

Assam (2002)  6  SCC  715,  this  Court  held  that  the  

circumstance of last seen does not by itself necessarily lead  

to the inference that it was the accused who committed the  

crime. It depends upon the facts of each case.  There may  

however be cases where, on account of close proximity of  

place and time between the event  of  the accused having  

been last seen with the deceased and the factum of death, a  

rational  mind  may  be  persuaded  to  reach  an  irresistible  

conclusion that either the accused should explain how and in  

what circumstances the victim suffered the death or should  

own the liability for the homicide.  Similarly in Arjun Marik  

and Ors. V. State of Bihar 1994 Supp (2) SCC 372, this  

Court  reiterated  that  the  solitary  circumstance  of the  

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accused  and  victim  being  last  seen will  not  complete  the  

chain of circumstances for the Court to record a finding that  

it is consistent only with the hypothesis of the guilt of the  

accused.  No conviction on that basis alone can, therefore,  

be founded.  So also in Godabarish Mishra   v. Kuntala  

Mishra  and  Another  (1996)  11  SCC  264,  this  Court  

declared  that  the  theory  of  last  seen together  is  not  of  

universal  application  and may not  always be  sufficient  to  

sustain a conviction unless supported by other links in the  

chain of circumstances.  In Bharat v. State of M.P (2003)  

3 SCC 106;  two circumstances on the basis  whereof  the  

appellant had been convicted were (i) the appellant having  

been  last  seen  with  the  deceased  and  (ii)  Recovery  of  

ornaments made at his instance. This Court held :

“........Mere non-explanation cannot lead to the proof   of guilt against the appellant. The prosecution has to   prove  its  case  against  the  appellant  beyond  reasonable doubt. The chain of circumstances, in our   opinion,  is  not  complete  so  as  to  sustain  the   conviction of the appellant.....”

17. We  may  also  refer  to  State  of  Goa  v.  Sanjay  

Thakran and Anr.  (2007) 3 SCC 755 where this  Court  

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held that in the absence of any other corroborative piece of  

evidence to complete  the chain of  circumstances it  is  not  

possible to fasten the guilt on the accused on the solitary  

circumstance  of  the  two being  seen  together.   Reference  

may also be made to Bodh Raj alias Bodha and Ors. v.  

State of Jammu and Kashmir (2002) 8 SCC 45 where  

this Court held :

“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 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....”

18. Finally in   Jaswant Gir v. State of Punjab  (2005)  

12 SCC 438, this Court held that it is not possible to convict  

Appellant  solely  on  basis  of  'last  seen'  evidence  in  the  

absence  of  any  other  links  in  the  chain  of  circumstantial  

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evidence,  the  Court  gave  benefit  of  doubt  to  accused  

persons.

19. Abdul Mabood-deceased was a young, physically stout  

boy aged 20-22 years.  In the absence of any suggestion as  

to how and where he was done to death it is difficult to infer  

anything incriminating against the appellant except a strong  

suspicion when he returned at night to the farm of Tajveer  

Singh  with  soiled  clothes.   The  explanation  given  by  the  

appellant for his clothes getting soiled can also not said to  

be so absurd that one could straightway reject and count the  

same  as  an  incriminating  circumstance  so  conclusive  in  

nature  that  the  Court  could  presume  that  they  were  

explainable only on the hypothesis that the appellant had  

committed the crime alleged against him.  

20. Suffice  it  to  say  that  even  if  we  take  the  most  

charitable liberal view in favour of the prosecution, all that  

we get is a suspicion against the appellant and no more. The  

High Court was in that  view justified in setting aside the  

order passed by the trial Court and acquitting the appellant  

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of the offence of murder under Section 302 IPC. The order  

passed by the High Court deserves to be affirmed giving to  

the appellant the benefit of doubt.  We accordingly dismiss  

the appeal filed by the appellant and discharge the notice of  

show-cause issued to him.

……..………….……….…..…J.                                  (T.S. Thakur)

     …………………………..…..…J.             (Gyan Sudha Misra)

New Delhi January 8, 2013

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