[2017) 9 S.C.R. 706

GANPAT SINGH

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 630 of2009)

SEPTEMBER 19,2017

[N. V. RAMANA ANU DR. D. Y. CHANDRACHUD, JJ.f

Penal Code, 1860 - s. 302 - Dead body found in a dry well

- identified to be that of PW-4 '.~ mother - Appellant absconded immediately aper the incident - Trial Court found appellant guilty entirely 011 basis of circumstantial evidence - High Court affirmed the conviction of the appellant - On appeal, held: There is manifest error on the part of the High Court in holding that the body of the deceased was recovered at the instance of the appellant - The appellant was arrested several months after the recovery of the body D - Hence, the recove1:v of the body could not have been (and was not) at his instance - The mere circumstance that the appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in instant case - The lapse of time between the point when the appellant was last seen with deceased

and the time of death is not minimal - The time of death was estimated to be between two tO'four weeks prior to the recove1y of the body - insofar, the testimony of son of deceased, that appellant informed him that deceased had stayed back - This coupled with the fact that the appellant had absconded after the date of the incident is a strong suspicion that the appellant was responsible for thedeath - However, a strong suspicion in itself is not s11f.flcient to lead to the conclusion that the guilt of the appellant stands established beyond reasonable doubt - There are material contradictions in the case of the prosecution - The prosecution fi1i!ed to establish a complete chain of circumstances and to exclude G every hypothesis other than the guilt of the appellant.

The case of the prosecution is that a dead body was found in a dry well. The body was identified to be of PW-4's mother. Based on circumstaptial evidence the Sessions Judge found the Appellant guilty u/s. 302 of the IPC and sentenced him to imprisonment for life.

The High Court did not rely upon the alleged recove1y of the A silver ornaments which was a material circumstance which the Sessions Judge had found to link the Appellant with the murder. Nonetheless, :::::11three circumstances weighed with the High Court in affirming the -conviction of the Appellant, viz. (i) deceased was last seen in the company -of the accused; (ii) the accused made false statement to the son of the deceased Rakesh (PW-4) that her mother had gone to the maternal B aunt; (iii) the body of the deceased was recovered at the instanceofthe accused. Hence, the present appeal.

Allowing the appeal, the Court

HELD: 1.1 There are no eye-witnesses to the crime. In a c case which rests on circumstantial evidence, the law postulates a two-fold requirement. First, every link in the chain. of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

Second, all the circumstances must be consistent only with the guilt of the accused. [Para 91 f711-F-Gf D

1.2 The case of the prosecution is riddled with unexplained contradictions, PWland PW2 were crucial_ to the case of the prosecution for establishing that the deceased had visited them and that they had lent her silver ornaments ostensibly because she intended to arrange the engagement of her son PW4.

Admittedly, neither PWl nor PW2 were called upon to identify the jewellery alleged to have been recovered from the house of the Appellant. PWl stated that the jewellery \\hich she had lent ., weighed more than half a kg. PW2 deposed that the ornaments which she had lent weighed about 1.25 kgs. In the course of her cross-examination, PWl stated that it was true that the ornaments which she had lent were commonly worn by women in the villages.

PW2 also admitted that there were no identification mar.ks on the ornaments and they were of a nature that is commonly used.

PWS, the daughter of the deceased, had (as 'the High Court observed) no opportunity to observe the ornaments on the person of the deceased. The ornaments had no special mark.s of identification. PWS materially improved upon her version during the course of the examination. On this state of the evidence, the recovery 9f the silver ornaments (which was an important link in

I .

A the chain of circumstances relied upon by the Additional Sessions - Judge) has been correctly disbelieved by the High Court. [Para ~

' 11] [713-A-D]

2. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the B behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this C case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body. [Para 12] [712-E-F]

3. The testimony of PW 4 is that when he enquired regarding D whenabouts of his mother-deceased, the Appellant informedhim that she had stayed back .at the house of her sister. This, co11pled with the fact that the Appellant had absconded after the dat~ of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of victim. However, a strong E suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prost!cution. These have been noticed in the earlier part of its judgment and are sufficient to entitle the Appellant to the.benefit of doubt. The prosecution failed to establish a complete chain of F circumstances and to exclude every hypothesis other than the guilt of the Appellant. [Para 13] [713-G-H; 714-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal AJ>peal No. 630 of 2009.

G From the Judgment and Order dated 22.03.2007 of the High Court

of Madhya Pradesh bench at Indore in Criminal Appeal No. 848 of 1998.

Shakil Ahmed Syed, Mohd. Parvez Dabas, Uzmil Jameel Husain, Advs. for the Appellant.

Ms. Sakshi Kakkar, Gaurav Shukla, AlokKumar Pandey (for C.

A D. Singh), Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. D.Y. CHANDRACHUD, J. J. This .appeal arises from a judgment of a Division Bench of the Madhya PradeshH.igh Court in its bench at Indore, rendered on 22 March 2007. The High_ Court affirmed B the conviction of the Appellant under Secti6n '.30z"Of~1.7-Jndiii11Penal Code ("IPC"). . .

2. Shantabai was a widow. Her husband Mangilal had died about a decade earlier. She resided together with her son Rakesh, who was a c minor. The prosecution alleges that the Appellant.would visit her frequently.

 3: The case of the prosecution is that on 8 July 1996, the police • station at Doraha received information of a dead.body being found in a dry well. A 'missing report' .had bee1i lodged by Rakesh. Raksh had alleged that the Appellant used to frequently visit the house where D Shantabai resided and had started to Jive there. Rakesh informed the police that a few days earlier, the Appellant had come to the house and had left the next morning with his mother for Sihore soon thereafter. On. · the next day, whe~ the Appellant returned alone, Rakesh enquired ; f the . whereabouts of his mother. The Appellant allegedly' informed him that . E she had stayed back at the home of Rakesh's maternal aunt. A First lnfo1mation Report was registered. A post-mortem ws. conducted on the body which had been recovered from the dry well, which was identified to be that of Shantabai. The body was decomposed and there was a piece of cloth loosely tied arouri'd the neck. The period of death was estimated to be between two to four weeks prior to the recovery.ofthe F . dead body. The Appellant is stated to have absconded immediately after . the incident. He was arrested cin 12 December 1997. The appellant was tried on the charge ofmurder.

4. The prosecution examined fifteen eye-witnesses. Among them were Rakesh~ PW4 a'nd Rekha-PW5, the married daughter of the G deceased. PW 1-Kamlabai and PW2-Dhankun\varbai deposed that Shantabai had visited their homes with a request to lend certain silver ornaments to her since she intended to arrange' the engagement of her son, PW 4- Rakesh. The evidence of these two witnesses was sought to . ..· .

A be buttressed by a recovery of silver ornaments from the house of the Appellant. PW3- Phool Singh was a witness for the prosecution in support of the se.izure memo. PW4- Rakesh deposed that the Appellant had taken his mother along with him under the pretext of getting Rakesh engaged. PW4 stated that on the next day, when the Appellant returned B alone, he enquired about the whereabouts of his mother when the Appellant informed him that she had stayed back with her sister. PW4 stated that he made inquiries with his maternal aunt who informed him that his mother had not visited her.

5. The Additional Sessions Judge by a judgment dated 23 June 1998 found the Appellant guilty of an offence under Section 302 of the C !PC and sentenced him to imprisonment for life. The case rested entirely on circumstantial evidence. The circumstances which weighed with the trial court were that : (i) the deceased was last seen accompanying the Appellant; (ii) the deceased had taken with her the jewelle1y of PWI and PW2 which was recovered from the Appellant; and (iii) the Appellant D had no explanation of how the articles were found in his possession.

6. In appeal, the High Court by its judgment dated 22 March 2007, disbelieved the case of the prosecution on the recovery of the silver ornaments from the house of the Appellant. The High Court noticed that only three silver ornaments had been recovered which were identified E by Rekha; PW5 who was the daughter of the deceased. Significantly, as the High Court noted, the prosecution had no explanation as to why there was no identification of the-silver ornaments by PW 1-Kamlabai and PW2- Dhankunwarbai who were alleged to have lent their ornaments to the deceased. The ornaments had no special marks of identification and were commonly available in the market. The High Court observed F that Rekha, PW5 had no occasion to observe the ornaments since her mother had only visited briefly. PW5, in the course of her deposition, stated for the first time that one of the ornaments belonged to her but then changed her statement and stated that it belonged to her mother.

The High Court noticed a clear contradiction with her statement under G Section 161 of the CrPC. The recovery of the ornaments from the house of the Appellant has hence been disbelieved. The High Court also noted in the course of the judgment that Rakesh, PW 4 had exaggerated what he claimed to know, in the course of his deposition. PW4 stated that the Appellant had admitted to him that he had killed Shantabai but no such statemerit was made under.Section 161 of the CrPC.

GAN PAT SINGH v. THE STATE OF MADHYA PRADESH 711

[DR. D.Y. CHANDRACHUD, J.]

7. In the above background, the High Court did not n; ly upon the A alleged recovery of the silver ornaments which was a material circumstance which the Additional Sessions Judge hac; I found to linkthe Appellant with the murder ofShantabai. Nonetheless, three circumstances weighed with the High Court in affirming the convictioi1 of the Appellant.

These are summarized in the following extracts of the ji1dgment of the

B .

High Court :

"Thus, to summarize the facts :-

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

(ii) The accused made false statement to the son of the deceased Rakesh (PW-4) thather mother had gone to the maternal aunt.

(iii) That the body of the deceased was recovered at the instance of the accused."· ·

8. During the course of the hearing of the appeal,. it has been submitted on behalf of the Appellant t_hat the third circumstance noted above reveals a clear error by the High Court since the body of the deceased was recovered on 8 July 1996 whereas the Appellant was arrested on 12 December 1997. This aspect has not been disputed by learned Counsel appearing on behalf of the respondent-state. Hence, there is a manifest error on the part of the High Court in holding that the body of the deceased was reco.:red at the instance of the Appellant.

The Appellant was arrested several months after the recovery of the body. Hence, the recovery of the ody could not have been (and was not) at his instance. That essenially leaves the court only with the first two circumstances which have been re.Jied upon by the High Court.

9. There are no eye-witnesses to the crime. In a: case which rests F on circumstantial evidence, the law postulates a two-fold requirement.

First, every link in the chain of circumstances necessary to esta.blish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstanpes must be consistent only with the guilt of the accused:. The principle has been consistently G formulated thus : ·

"The normal principle in a case based on circumstantial evidence is that the circun1stances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circun1stances shouid be of a definite tendency unerringly pointing H

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 his innocence".'

10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of anothtr. The settled formulation of law is as follows :

"The last seen theory comes into play wht.:re the time gap between , the point of time when the accused and 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 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. Jn the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of ):,'Uilt in those cases".2

I Sec Sharad Birdhichand Sarda v. State of Maharashtra, ( 1984) 4 sec 116: Ramrcddy Rajeshklianna Reddy v. State ofAndhra Pradesh, (2006) 10 SCC 172: Trimukh Maroti Kirkan v. State of Maharashtra, (2006J 10 SCC 681: Vcnkatesan v. State of Tamil Nadu, (2008) 8 SCC 456; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SCC 733: Madhu v. State of Kerala, (2012) 2 SCC 399: Munna Kumar Upadhyaya~'!· Munna Upadhyaya v. State ofAndhra Pradesh, (2012) 6 sec 174: Vivek Katra v. State of Rajasthan. (2014) 12 sec 439."

2 See Bodh Raj @Bodha v. State of Jammu and Kashmir, (2002) 8 sec 45: Jaswant Gir

v. State of Punjab (2005) 12 SCC 438: Tipparam Prabhakar v. State ofAndhra Pradesh, (20091 13 SCC 534; Rishi Pal v. State ofUttarakhand, (2013) 12 SCC 551: Krishnan v.

State ofTamil Nadu, (2014) 12 SCC 279; Kiri ti Pal v. State of West Bengal. (2015) 11 sec 178; State ofKarnataka v. Chand Basha. (2016) I sec 501: Rambraksh V, State ofChhattisgarh, (2016) 12 SCC 251; Anjan Kumar Shanna v. State of Assam, 2017 (6)

SCALE556."

[DR. D.Y. CHANDRACHUD, J.] 713 .

. 1 i . The case of the prosecution is riddled with unexplained . A.· contradictions, PW 1-Kamlabai and PW2-Dhankunwarbai were crucial ·

to the case of the prosecution for establishing that the deceased had visited them and that they had lent her silver ornaments ostensibly becmise she intended to arrange the engagement of her son Rakesh- PW 4. Admittedly, neither PWl nor PW2 were called upon to identify B the jewellery alleged to have been recovered from the house of the Appellant. PWl stated that the jewellery which she had lent weighed more than half a kg. PW2 deposed that the ornaments which she had lent weighed about 1.25 kgs. In the course of her cross-examination, PWI stated that it was true that the ornaments which she had lent were commonly worn by women in the villages. PW2 also admitted that C there were no identification marks on the ornaments and they were of a nature that is commonly used. PWS-Rekha, the daughter or the deceased, had (as the High Court observed) no opportuniy _to observe the ornaments on the person or'the deceased. The ornaments had no special. marks ofidentification. PW5 materially improved upot1 her version during . the course of the examination. On this state of the evidence, the recove1y D · of the silver ornaments (which was an important link in the chain of . circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.

12. An important circumstance which weighed with the High Court was .that the body of the deceased was recovered at the behest ofthe Appellant. There is a manifest error on the part of the High Coui't in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The iime of death was estimated to be between two to four weeks prior to the recovery of the body.·

13. We must also place in balance the testimony of PW4 that G when he enquired regarding whereabouts of his mother, theAppellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in.

A itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish B a complete chain of circumstances and to exclude eve1y hypothesis other than the guiit of the Appellant.

14. We accordingly allow the appeal and set aside the conviction of the Appellant under Section 302 of the IPC. The appellant is on bail.

His bail bonds are discharged.

Ankit Gyan Appeal allowed.