Case: Venkatesan Vs. State Of Tamil Nadu

State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(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 compete 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. 11. Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person. 13. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted as follows: "22. 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).)" 15. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438]. 16. Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.3. 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 othercircumstances 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.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. He does not speak of any date. He also admitted in cross examination that he does not remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 = years of the alleged date of occurrence to have seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification mark of A2 to police.12. He has further admitted that after pointing out the appellant, the police enquired as to whether he had seen the person.Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in directing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) SCC 114] it was noted asThe last seen theory comes into play where theIn Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted asen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case the courts should look for some corroboration.28. In State of U.P. v. Satish [2005 (3) SCC 114 ] this Court observed: (SCC p. 123, para 22)"22. Thetheory comes into play where thebetween the point of time when the accused and the deceased were last seen 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002 (8) SCC 45 ).A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438].