REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 546 OF 2010

SUNITA .....APPELLANT(S)

VERSUS

STATE OF HARYANA .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The appellant Sunita stands convicted for the murder of Sushila,

wife of Shish Pal, by the learned Additional Sessions Judge, Karnal

on January 13, 2006.  The appeal against the said judgment was

dismissed on March 25, 2008.   

2. Shish Pal is son of Dharma and resident of Village Dadola, District

Panipat.   Shish Pal  and Sushila had two children, one son Sagar

aged about 3½ years and one daughter Shivani aged about 1½

years.  The accused Sunita is daughter of Roshan, cousin of father

of Shish Pal, who was also a resident of Village Dadola.  Roshan had

three daughters, the other two being Santosh and Geeta.   

3. Pirthi Singh (PW-5) is resident of Village Kailash, which is 55 kms.

from  Village  Dadola  on  way  to  Village  Sangatehra  (UP),  the

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paternal village of Sushila, the deceased.  Pirthi Singh’s eldest son

Baburam was married with Shiksha Devi.  She died about  18-20

years back.  Baburam had a son Neeraj and a daughter Nirjesh

Kumari  from  his  first  wife.   Sunita  is  alleged  to  have  married

Baburam after death of his first wife.  The said fact is disputed by

Pirthi  Singh  (PW-5)  though  he  admits  that  accused  Sunita  was

living with his son Baburam and had given birth to a son.  It  is

admitted by learned counsel for the appellant that Sangatehra, a

village in Uttar Pradesh, is about 100 kms. from Dadola and Village

Kailash is about 55 kms. from Dadola on way of Sangatehra.   

4.   The prosecution case is that one Munshi Ram, son of Ram Diwaya,

resident of Village Kailash, lodged a report (Ex.P/24) at 8:30 am on

January 4, 2004.  He stated that he is a tenant on payment of 1/3rd

batai over the land of Baburam, son of Pirthi Singh (PW-5).  At about

6 am, he was going towards his field and on his way, Ram Lubhaya,

another  co-villager,  told  him  that  someone  has  set  his  ‘Bitora’

(conical storage of cow dung cakes) on fire.  He saw many persons

standing there.  He found that a foul smell was coming from the fire

and  noticed  the  burning  of  a  dead  body.   On  the  basis  of  his

statement, the Police went to the place of occurrence. The inquest

report  (Ex.P/25)  reflected  burning  of  a  dead  human  body.   SI

Shamsher Singh (PW-14) went to the place of occurrence and made

request for postmortem of the remains of the body to Senior Medical

Officer, Civil Hospital, Karnal.  However, the Medical Officer sent the

flesh and bones to PGIMS, Rohtak vide (Ex.P/8) for opinion by the

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Board  of  doctors.   On  January  5,  2004,  the  postmortem  was

conducted. The report is Ex.P/26. It was found to be a dead body of

a female.  It was on February 4, 2004, the blood samples of Isham

Singh (PW-3) (father of Sushila) and Kanti (mother of Sushila) were

taken and sent for DNA test.  Report of such DNA test is Ex. P/35

dated June 1, 2004 which shows that bones and tissues match with

DNA profile of Kanti and Isham Singh (PW-3).  On the basis of report,

a formal FIR (Ex.P/10) was lodged on June 15, 2004 by Isham Singh.

5. On January  9,  2004,  Shish  Pal,  husband of  the  deceased Sushila

informed Isham Singh (PW-3) that he had seen the photographs of

his missing children, Sagar and Shivani, in a newspaper, said to be

with  Manav  Sewa  Sangh,  Panipat.   Shish  Pal  also  informed  that

Sushila was not with the children in Panipat.  Isham Singh reached

Village Dadola but, in the meantime, Shish Pal got the children back

from Panipat.

6. Isham Singh has appeared as PW-3 and deposed that, on January

16, 2004, he came to know that one lady was burnt in  ‘Bitora’ at

Village Kailash.  He went to Village Kailash along with his brother-in-

law  Kashmir  Singh  (PW-12)  and  came  to  know  that  aforesaid

incident  has  taken  place  during  the  intervening  night  of  3rd/4th

January, 2004.  The accused was the suspect.

7. The investigations were conducted by SI Shamsher Singh (PW-14), SI

Ramesh Chand (PW-19) and Inspector Baljinder Singh (PW-20).  After

completion of the investigations, the appellant was made to stand

trial.  On an application filed by the prosecution, one Ashok Kumar

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and Seth Pal were made to stand trial but both the co-accused stand

acquitted by the trial Court itself.

8. Learned counsel for the appellant argued that the prosecution story

is  unbelievable and full  of  contradictions.  The entire prosecution

case is the evidence of last seen by Neeraj (PW-4), son of Baburam

and Pirthi Singh (PW-5), father of Baburam.  It is argued that both

the  persons  are  inimical  towards  the  appellant  inasmuch  as  the

appellant has filed a suit for claiming estate of Baburam as his wife

which right is denied by the said witnesses.  It is argued that Neeraj

(PW-4) is said to have seen the appellant with the deceased and her

two children on January 3, 2004 at the turn from G.T. Road towards

his village when he was returning back from Karnal at about 2 pm.

Neeraj (PW-4) further deposed that at about 2 am in the intervening

night of 3rd/4th January, 2004, when he got up for urinating, he found

Sunita going on a Scooty with a gunny bag placed on its footrest.  In

the morning,  he saw  ‘Bitora’ situated in  the field of  Ratan Singh

burning from a distance.  At about 9 am, he saw crowd gathered

there and he along with his three friends went there.  The Police also

reached at the spot.  Part of the cross-examination related to the

role of other two co-accused Ashok Kumar and Seth Pal which is not

relevant at this stage. He deposed that lady with the appellant was

of a height of 5’7”.  The father of deceased Sushila, Isham Singh

(PW-3) has deposed that Sushila was 5’ in height.  It is, thus, argued

that  had  the  witness  seen  the  deceased  with  the  appellant,  he

would  have  noticed  the  height  correctly.   It  is  also  argued  that

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Neeraj (PW-4) has not identified Sushila when he allegedly saw her

with the appellant which is quite unbelievable as he was a step son

of the appellant.  It is further argued that it is impossible to ride a

Scooty with a dead body in a gunny bag on the footrest, therefore,

prosecution story is full of inherent improbabilities.   

9. Learned  counsel  for  the  appellant  submitted  that  Pirthi  (PW-5)

deposed that he has seen the deceased along with her two minor

children in the house of the appellant at about 5 pm on January 3,

2004.  However, in cross-examination, he admits that his statement

was recorded 7-8 days after burning of ‘Bitora’ but he has not stated

that he has seen the deceased with minor children in the house of

Sunita.   

10. Learned counsel for the appellant relied upon  Satpal  v. State of

Haryana1 to contend that the evidence of Neeraj (PW-4) and Pirthi

Singh  (PW-5)  is  weak  evidence  and  by  itself  is  not  sufficient  to

maintain conviction.  There is no other evidence to link the appellant

with the death of Sushila. It has been held that evidence of last seen

theory is a weak kind of evidence by itself to convict upon the same

singularly. The Court held as under:-

“6. We have considered the respective submissions and the evidence  on  record.  There  is  no  eyewitness  to  the occurrence but only circumstances coupled with the fact of the  deceased  having  been  last  seen  with  the  appellant. Criminal  jurisprudence  and  the  plethora  of  judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak

1  (2018) 6 SCC 610

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kind of evidence by itself to found conviction upon the same singularly.  But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section  106  of  the  Evidence  Act  with  regard  to  the circumstances under which death may have taken place. If the  accused  offers  no  explanation,  or  furnishes  a  wrong explanation,  absconds,  motive is  established,  and there is corroborative  evidence  available  inter  alia  in  the  form  of recovery  or  otherwise  forming  a  chain  of  circumstances leading  to  the  only  inference  for  guilt  of  the  accused, incompatible  with  any  possible  hypothesis  of  innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to  be  examined  on  its  own  facts  for  invocation  of  the doctrine.”

(Emphasis Supplied) 11. In another Judgment, this Court in Asar Mohammad v. State of

U.P.2,  reiterated when conviction on the basis of  circumstantial

evidence can be maintained. The Court held that:-

“9. Before proceeding to consider the rival submissions, be it noted that in the present case, no direct evidence has been  produced  by  the  prosecution  regarding  the involvement  of  the  appellants  in  the  commission  of  the crime.  The  prosecution  rests  its  case  solely  on circumstantial evidence. The legal position as to how such matter should be examined has been expounded in Padala Veera  Reddy v. State  of  Andhra  Pradesh3 in  the  following words:—

“10.  …..  This  Court  in  a  series  of  decisions  has consistently  held  that  when  a  case  rests  upon circumstantial  evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of  a definite tendency unerringly pointing towards guilt of the accused;

2  2018 SCC OnLine SC 2179 3  1989 Supp (2) SCC 706

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(3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction  must  be  complete  and  incapable  of explanation of any other hypothesis than that of the  guilt  of  the  accused  and  such  evidence should not only be consistent with the guilt of the accused  but  should  be  inconsistent  with  his innocence.  (See Gambhir v. State  of Maharashtra4.)

11.   See  also Rama  Nand v. State  of  Himachal Pradesh5, Prem  Thakur v. State  of  Punjab6, Earabhadrapa  alias  Krishnappa v. State  of Karnataka7, Gian  Singh v. State  of  Punjab8, Balwinder Singh v. State of Punjab.9”

10. In Mulakh  Raj v. Satish  Kumar10,  the  Court  succinctly restated the legal position in paragraph 4 as under:

“4.  ……Undoubtedly  this  case  hinges  upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution  must  prove  all  the  circumstances connecting  unbroken  chain  of  links  leading  to only one inference that the accused committed the crime. If any other reasonable hypothesis of the  innocence  of  the  accused  can  be  inferred from  the  proved  circumstances,  the  accused would be entitled to the benefit. What is required is  not  the  quantitative  but  qualitative,  reliable and  probable  circumstances  to  complete  the chain connecting the accused with the crime. If the  conduct  of  the  accused  in  relation  to  the crime  comes  into  question  the  previous  and subsequent  conduct  are  also  relevant  facts. Therefore,  the  absence  of  ordinary  course  of

4  (1982) 2 SCC 351 5   (1981) 1 SCC 511 6  (1982) 3 SCC 462 7  (1983) 2 SCC 330 8   1986 Supp SCC 676 9  (1987) 1 SCC 1 10   (1992) 3 SCC 43

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conduct of the accused and human probabilities of  the  case  also  would  be  relevant.  The  court must weigh the evidence of the cumulative effect of  the  circumstances  and  if  it  reaches  the conclusion  that  the  accused  committed  the crime, the charge must be held proved and the conviction and sentence would follow.”

12. We have heard the learned counsel for the parties and find merit in

the argument raised by learned counsel for the appellant.

13. As per prosecution story, the parental village of Sunita is Dadola i.e.

same village as that of Shish Pal, husband of the deceased.  Sunita

is daughter of cousin of father of Shish Pal, therefore, she is familiar

with  the  deceased.   Sunita  was  living  with  Baburam  in  Village

Kailash, which is at distance of about 55 kms. from Dadola.  The

prosecution story is that the deceased and the appellant planned to

visit  Sangatehra  together  to  wish  the  birth  of  nephew  of  the

deceased sometime back.  Therefore, both went from Village Dadola

to Village Sangatehra and on way stopped at Village Kailash.  The

deceased  had  no  occasion  to  be  in  Village  Kailash  unless  she

accompanies Sunita who is cousin of her husband. Therefore, the

needle of suspicion is on the appellant.  

14. Sushila went missing on January 3, 2004 but no missing report was

lodged.  Isham Singh (PW-3), father of the deceased, lodged the FIR

on  June  15,  2004 i.e.  after  the  identity  of  the  dead  body  of  his

daughter was established.  He deposed that Roshan, father of the

accused-appellant was looked after  by his  daughter  and that  the

motive  to  take  the  life  of  the  deceased  was  that  appellant

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apprehended  that  her  father  may  give  his  property  to  Sushila.

Roshan has appeared as DW-3 who deposed that he was not looked

after by the deceased.  Therefore, the primary motive is not made

out.   The  children  of  the  deceased  were  found  at  Manav  Sewa

Sangh, Panipat.  Such fact came to the notice of Shish Pal, husband

of the deceased from an advertisement but who left the children at

Manav Sewa Sangh has not come on record.   

15. According to Isham Singh (PW-3), Sushila’s height was 5’ whereas as

per Neeraj (PW-4), the lady with the appellant at the bus stop was

5’7”.   There  is  a  margin  of  approximation  in  the  height  of  the

deceased stated by Isham Singh (PW-3) and Neeraj (PW-4), but such

discrepancy  is  a  factor  to  test  the  veracity  of  the  statement  of

Neeraj  (PW-4).   Neeraj  (PW-4)  deposed  that  he  had  seen  the

appellant with a gunny bag placed on the footrest of a Scooty driven

by the appellant.  The carrying of a weight of a dead body on a

Scooty is  not  believable.   Still  further,  Neeraj  (PW-4)  has  left  his

father Baburam after his father started living with Sunita and started

staying with his grandfather Pirthi Singh (PW-5).  There is a civil suit

(Ex.  D-5)  filed  by  the  appellant  to  claim  estate  of  Baburam.

Therefore, such statement has to be taken with pinch of salt as it is

by a person, who is inimical to the accused.  The statement of Pirthi

Singh (PW-5) is only to the fact that he had seen the dead body

recovered from ‘Bitora’.  Though, he deposed that he had seen the

deceased on January 3, 2004 in the house of Sunita but again this is

a statement of a witness who is at loggerhead with the appellant.

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Therefore,  such  statement  cannot  be  relied  upon  readily  in  the

absence of any corroboration.  Therefore, the only evidence against

the appellant is of last seen by Neeraj (PW-4) at 2 pm and that of

Pirthi  Singh (PW-5) at 5 pm and later in the night,  Sunita with a

gunny bag on her Scooty by Neeraj at 2 am.  Such evidence does

not  complete  the  chain  of  circumstances  so  as  to  maintain

conviction of the appellant for an offence under Section 302 IPC.   

16. The prosecution has been able to prove only death of Sushila on the

basis  of  DNA  test  from  the  body  recovered  from  ‘Bitora’ in  the

Village Kailash.   Even if  the statement of  Neeraj  (PW-4)  is  relied

upon that  he may not  be aware of  the identity  of  the deceased

being resident  of  another village but  the fact  at  best is  that the

inference can be drawn that he has lastly seen the deceased with

the appellant at 2 pm on January 3, 2004.   

17. The High Court referred to Section 106 of the Indian Evidence Act,

1872  to  hold  that  the  appellant  was  required  to  explain  the

circumstances under which the body parts of the deceased came to

be recovered from the burning  ‘Bitora’ at Village Kailash.  We find

that finding of the High Court is erroneous inasmuch as ‘Bitora’ was

not  in  possession  of  the  appellant  much  less  exclusive.   It  was

located in an open area in the field of Ratan Singh. Still further, such

explanation would be necessary, if the prosecution has discharged

the initial onus on it. Therefore, the appellant was not required to

explain the circumstances of body parts being found in  ‘Bitora’ in

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the village where she resided with Baburam.  The other evidence of

the  prosecution  is  of  extra-judicial  confession  made  to  Kashmir

Singh (PW-12) brother-in-law of father of Sushila. Such statement is

again untenable.  The prosecution has not produced on record any

special circumstance as to give confidence to the appellant to make

extra judicial confession before Kashmir Singh (PW-12).  The other

evidence is recovery of Scooty on the basis of disclosure statement

made by the appellant.  Apart from statement of Neeraj (PW-4) that

he has seen the appellant riding Scooty with gunny bag, there is no

other evidence of use of Scooty in a crime.  There is no blood mark

on  the  Scooty  or  any  other  evidence  that  it  was  used  by  the

appellant in disposing of the body.  The prosecution has failed to

prove at what place, Sushila was murdered.  There is no evidence in

the manner of cause of death or place of death available on record.

Therefore, we find that the prosecution has not been able to prove

that it is the appellant and the appellant alone who is guilty of the

offence of murder of Sushila.   

18. Consequently, granting benefit of doubt to the appellant, the appeal

is  allowed.   The  appellant  is  acquitted  of  the  charges  levelled

against her.  The bail bonds shall stand discharged. She be set at

liberty, if not wanted in any other case.

.............................................J. (L. NAGESWARA RAO)

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.............................................J. (HEMANT GUPTA)

NEW DELHI; JULY 30, 2019.

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