NIZAM & ANR.  versus STATE OF RAJASTHAN
[2015] 10 S.C.R. 786, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A 
B 
[2015] 10 S.C.R. 786 
NIZAM&ANR. 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No.413 of 2007) 
SEPTEMBER 04, 2015 
[DIPAK MISRA AND R. BANUMATHI, JJ.] 
Penal Code, 1860- ss. 302 and 201 - Prosecution under 
- Based on circumstantial evidence - Conviction by courts 
C below - On appeal, held: For establishing the guilt on the 
basis of circumstantial evidence, the circumstances must be 
firmly established and the chain of circumstances must be 
complete from the facts - There are many loopholes in the 
prosecution case - In the facts of the case, chain of 
D circumstances were not complete so as to point only to the 
guilt of the accused and no other inference :- If more than 
one inferences can be drawn, then the accused must have 
the benefit of doubt - Therefore, conviction of appe/lants-
.E 
accused cannot be sustained - Evidence - Circumstantial 
Evidence. 
Evidence - Circumstantial evidence - 'Last seen theory' 
- Applicability of - Held: The theory should be applied by 
taking the prosecution case, in its entirety keeping in mind 
F the circumstances that precede and follow the point of being 
so last seen -
Only if the prosecution proves that the 
deceased was last seen alive in the company of accused, 
an inference can be drawn against the accused and only then 
onus can be 'shifted on accused u/s. 106 of Evidence Act- It 
G is not prudent to base the conviction solely on 'last seen 
theory' - Where the time gap between the deceased last seen 
and the recovery of
his body is long, it would be unsafe to 
base the conviction without looking for corroboration from any 
H other circumstances and evidence -- Evidence Act, 1872 -
s.106. 
786
NIZAM &ANR. v. STATE OF RAJASTHAN 
787 
Constitution of India, 1950-Art. 136 - Jurisdiction under A 
- Held: Normally, interference with concurrent findings is not 
permissible - But where material aspects have not been 
taken into consideration and where the findings of courts are 
unsupportable from the evidence resulting in miscarriage of 
justice, interference in exercise of such jurisdiction is B 
permissible. 
Allowing the appeal, the Court 
HELD: 1.1 Case of the prosecution is entirely based C 
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 0 
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. [Para 8] [794-0-E] E 
Bodhraj@ Bodha and Ors. vs. State of Jammu & 
Kashmir 2002 (2) Suppl. SCR 67: (2002) 8 SCC 
45; Trimukh Maroti Kirkan vs. State of 
Maharashtra 2006 (7) Suppl. SCR 156: (2006) 
10 SCC 681; Sunil Clifford Daniel vs. State of 
Punjab 2012 (7) SCR 1100: (2012) 11 SCC 205; 
Sampath Kumar vs. Inspector of Police, 
Krishnagiri 2012 (2) SCR 289: (2012) 4 SCC 124; 
Mohd. Arif@Ashfaq vs. State (NCT of Delhi) 201-1 
(10) SCR 56: (2011) 13 SCC 621 - relied on.
F 
G 
1.2 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, H
788 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A "last seen theory" is an important link in the chain of 
circumstances and 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 not prudent to base the conviction solely 
B 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. [Para 14] [797-H; 798-A-C] 
c 
State of Rajasthan vs. Kashi Ram 2006 (8) Suppl. 
SCR 501: (2006) 12 SCC 254; Kiriti Pal vs. State 
of West Bengal (2015) 5 Scale 319 - referred to. 
o 
1.3 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 
E 106 of the Evidence Act. [Para 16] [799-F-G] 
1.4 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 
F evidence adduced by the prosecution. From the facts 
and evidence, no other corroborative piece of evidence 
corroborating the last seen theory is found. In view of 
the gap between the time when the deceased left in the 
truck and the recovery of his body and
also the place 
G 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 
H that the appellants are responsible for the murder. [Para
NIZAM &ANR. v. ~TATE OF RAJASTHAN 
789 
18] [800-D-F] 
A 
1.5 In the present case, neitt~er t: 1e 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 B 
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-
C 
explanation as to how the deceased reached the village 
where his dead body was found and injuries on his 
internal organ (penis). Thus, there are many loopholes 
in the case of the prosecution. For establishing the guilt 
on the basis of the circumstantial evidence, the D 
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. [Para 19] [800-G-H; 801-A-C] 
E 
1.6 Based on the evidence of PWs 1 and 2, courts 
below expressed the view that motive for n:iurder of the 
deceased was the lust for the money which he was 
carrying. Courts below based the conviction of the F 
appellants on the circumstances "last seen theory" as 
stated by PWs 1 and 2 along with recover/ of bilty and 
receipt by PW-6 on which the name of the accused 
person was printed. But neither
the amount of Rs.20,000/ 
- nor any part of it was recovered from the appellants. If G 
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 H
790 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 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. Apart from non-recovery of the amount 
from the appellants, serious doubts arise as to the motive 
B propounded by the prosecution. [Paras 12 and 13] [797-
B-F] 
1.7 None of the circumstances relied upon by the 
prosecution and accepted by the courts below cai:i be 
C said to be pointing only to the guilt of the appellants and 
no other inference. If more than one inferences can be 
drawn, then the accused must have the benefit of doubt. 
In the facts and circumstances of the case, the 
conviction of the appellants cannot be sustained. [Para 
D 20] [801-E-G] 
. 
2. Normally, this Court does not interfere in exercise 
of its powers under Article 136 of the Constitution of India 
with the concurrent findings recorded by the courts 
E 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. [Para 20] [801-D-E] 
F 
Case Law Reference 
2002 (2) Suppl. SCR 67 
relied on. 
Para 9 
2006 (7) Suppl. SCR 156 
relied on. 
Para 10 
G 
2012 (7) SCR 1100 
relied on. 
Para 10 
2012 (2) SCR 289 
relied on. 
Para 10 
2011 (10) SCR56 
relied on. 
Para 10 
H 
2006 (8) Suppl. SCR 501 
referred to. Para
15

NIZAM &ANR. v. STATE OF RAJASTHAN 
791 
(2015) 5 Scale 319 
referred to. Para 15 
CRIMINALAPPELLATE JUDISDICTION: Criminal Appeal 
No. 413of2007. 
A 
From the Judgment and Order dated 01.07.2005 of High 
Court of Rajasthan at Jaipur in Criminal Appeal No. 1248 of B 
2002. 
Shekhar Prit Jha (A.C.), Vikrant Bhardwaj for the 
Appellants. 
Ram Naresh Yadav, Milind Kumar, Sunil Kumar Sharma 
for the Respondent. 
The Judgment of the Court was delivered by 
c 
R. BANUMATHI, J. 1. This appeal assails the correctness D 
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 
E 
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 
F 
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 G 
Ghaziabad on 23.01.2001. Accused-appellants Nizam and 
Shafique who were the driver and cleaner respectively on the 
truck No.DL-1 GA-5943 also loaded their truck with pipes from 
the same company on the same day at Barar and
started for 
H
792 
SUPREME COURT REPORTS 
(2015] 10S.C.R. 
A 
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 
B 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-1 GA-
C 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 Kake 
D 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, 
E 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, 
F 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 clues obtaining in the bilty, accused 
G 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. 
H 
4. To bring home the guilt of the accused-appellants,
NIZAM &ANR. v. STATE OF RAJASTHAN 
793 
[R. BANUMATHI, J.] 
prosecution has examined twenty one witnesses. A 
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 B 
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 C 
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 0 
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. 
E 
5. 
Learned counsel for the appellants submitted thatthe 
"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 argued 
F 
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 G 
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 H
794 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 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 
B 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 
C 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 
o 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 
E hypothesis of the guilt of the accused totally inconsistent with 
his evidence. 
9. The principle of circumstantial evidence has been 
reiterated by this Court in a plethora of cases. In Bodhraj @ 
F BodhaAnd Ors. vs. State of Jammu & Kashmir,(2002) 8 SCC 
45, wherein this court quoted number of judgments and held 
as under:-
G· 
H 
"10. It has been consistently laid down by this Court that 
where a case
rests squarely on circu.mstantial 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
NIZAM &ANR. v. STATE OF RAJASTHAN 
795 
[R. BANUMATHI, J.] 
Hyderabad AIR 1956 SC 316, Earabhadrappa v. State A 
of Karnataka (1983) 2 SCC 330, State of U.P. .v. 
Sukhbasi (1985) Suppl. SCC 79, Ba/winder 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 B 
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 C 
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 0 
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) 
E 
"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 arid 
such circumstances must be conclusive in nature. 
F 
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." G 
10. In Trimukh Maroti Kirkan vs. State of Maharashtra, 
(2006) 1 o sec 681, this court held as under: 
"12. In tr~ case in hand there is no eyewitness of the 
occurrence and the case of the prosecution rests on H
796 
A 
B 
c 
SUPREME COURT REPORTS 
(2015] 10S.C.R. 
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) 11SCC205, Sampath Kumar vs. 
D 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 
E 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-1 GA-5943 of the accused Nizam and Shafique was 
also loaded with pipes. On the way to Ghaziabad, quarrel took 
F 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 
G sent along with accused Nizam and Shafique in the other truck 
DL-1 GA-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 (PW- 3) 
H who had no knowledge about Manoj. In the meanwhile, based 
on the bilty and the receipt recovered from the pocket of the
NIZAM &ANR. v. STATE OF RAJASTHAN 
797 
[R. BANUMATHI, J.] 
trouser of deceased-Manoj, Maniya police contacted PW-3-
A 
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 B 
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 C 
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 D 
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. 
E 
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 F 
to. the police station complaining that by five to seven people 
of other vehicle have robbed him and the money. However, 
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 G 
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 H
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SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
A 
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 
B 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 
C 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 
D held as under.-
E 
F 
G 
H 
"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 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
NIZAM &ANR. v. STATE OF RAJASTHAN 
[R. BANUMATHI, J.] 
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 falilure 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. 
799 
A 
B 
c 
D 
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 
E 
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 F 
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 travelled in their 
truck No.DL-1 GA-5943. As noticed earlier, body of Manoj was 
recovered only on 26.01.2001 after three days. The gap 
G 
H
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SUPREME COURT REPORTS 
[2015] 1 O S.C.R. 
A 
between the time when Manoj is alleged to have left in the 
truck No.DL-1 GA-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-
B 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. 
c 
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 
D 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 
E 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 
F 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 guilt 
of the accused. In the case at hand, neither the weapon of 
G 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 
H money; (ii) The weapon from which abrasions were caused;
NIZAM &ANR. v. STATE OF RAJASTHAN 
[R. BANUMATHI, J.] 
801 
(iii) False case lodged by PW-2 alleging that he was being A 
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 B 
circumstantial evidence, the circumstances must be firmly 
established and the chain of eircumstances must be completed 
from the facts. The chain of circumstantial evidence cannot be 
said to be cor:icluded in any manner sought to be urged by the 
· prosecution. 
C 
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 D 
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 prose9utiqn case. None E 
of the circumstances relied upon by the prosecution and 
accepted by the courts below can be sajd to be pointing only 
to the guilt of the appellants and no other inference. If more 
than one inferences can be drawn, then the accused
must have 
F 
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 tb be allowed. 
21. The conviction of the appellants under Sections 302 
and 201 IPC is set aside and the appeal is allowed. The G 
appellants are in jail and they are ordered to be set at liberty 
forthwith if not required in any other case. 
Kalpana K. Tripathy 
Appeal allowed. 
H