The Supreme Court acquitted the accused convicted of murder, holding that conflicting testimony regarding whether the accused and deceased were last seen together made the conviction unsafe. The Court reiterated the strict standards for relying on circumstantial evidence and the last seen theory.
Acquittal of the appellant-accused and release from custody.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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[2008] 17 S.C.R. 73
ARUN BHAKTA @ THULU
v.
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ST ATE OF WEST BENGAL (Criminal Appeal No.1969 of 2008)
DECEMBER 5, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
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Penal Code, 1860 - s. 302 - Murder of wife - Circumstantial evidence - Last seen theory - PWs resi/ed from their statements denying to have last seen the accusedc with the deceased - Conviction by courts below - On appeal, held: It would be unsafe to convict the accused in view of the statements of pws relating to last seen aspect - Hence, acquitted.
Evidence - Circumstantial evidence - Reliance on - Held: Conviction can be based on such evidence - Condition precedent for reliance before conviction, discussed.
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Appellant-accused was prosecuted uls. 302 IPC for having killed his wife. According to prosecution there was no eye-witness to the incident. The accused was last seen together with the accused as in the night of fateful day, the accused had slept with the deceased and in the morning dead body of the deceased was found in h~r room. Accused was not found in the room. During trial, PWs 8 and 9, father and mother of the deceased respectively, resiled from their statements that the accused and deceased slept together. The accused in his statement uls 313 Cr.P.C. took the plea of alibi. Trial court convicted the accused u/s 302 IPC. High Court confirmed the conviction. Hence, the present appeal.
Allowing the appeal, the Court
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HELD: 1. The prosecution has failed to prove tl'le 73
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A accusations. Regarding the evidence relating to the la~t seen aspect, PW 1 stated that the accused and the deceased slept together in the room. Strangely PW 9 stated that the deceased slept alone, and the appellate had not come to his house. PW 1 is the sister of the Bdeceased. PW 8 the_de-facto_complainant i.e. the father of the deceased resiled from the statement made during investigation an_d stated that he had not told anybody that appellant was sleeping with the deceased. 'In view of the diametrically opposite version as to whether the accused cand the deceased were $een together in the houseit ould be unsafe to direct his conviction. [Par 18) [840-F] .. : .... ,, .. :·., .
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2.1. 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 he proved by direct ocular evid;ence 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 draVlfn from factum probans, i.e., 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 facts 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. [Para 7) [79-F-H] ·
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2.2. Where a case rests squarely on circumstantial Gevidence, the inference of guilt can be justified only when all the incriminati'ng facts and circumstances are found to be incompatible with the innocence of the accused- or the guilt of any other person.· There is no doubt that convictioiican be based solely on circumstantial evidence,· but it should be tested by the touch-stone of
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ARUN BHAKTA@ THULU v. STATE OF WEST BENGAL
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law relating to circumstantial evidence. They are the A 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; the facts so established should be consistent only with the hypothesis of the guilt of the B accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty-; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; andthere must c be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in aH human probability the act must have been done by the accused. [Paras 8, 13 and 15] [80-A; 82 .. B-C; 83-A-E] 0
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Hukam Singh v. State of Rajasthan AIR 1977 SC 1063; ·Etadu and Ors. v. State of Hyderabad AIR 1956 SC 316; Earabhadrappa v. State of Kamataka AIR 1983 SC 446; State of U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar E Chatterjee v. State of M.P. AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1954 SC 621; C. Chenga Reddy and Ors. v. State of A.P. 1996 (10) SCC 193; Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79; State of U.P. v. Ashok Kumar Srivastava 1992 Crl.LJ 1104; Hanumant F Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR · 1952 SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, relied on.
"Wills' Circumstantial Evidence" (Chapter VI) by Sir G Alfred Wills, referred to.
2.3. 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
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A person other than the accused being the author of the crime becomes impossible. [Para 16] [83-F]
State of U.P. v. Satish 2005 (3) SCC 114; Ramreddy Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172; B_Bodhraj v.State of Punjab_2005(8)SCC45 andJaswant Gir v. State of Punjab 2005(12) sec 438, relied on.
Case Law Reference:
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| AIR 1977SC1063 | Relied on. | Para 8 | ||
|---|---|---|---|---|
| c | AIR 1956SC316 | Relied on. | Para 8 | |
| AIR 1983SC446 | Relied on. | Para 8 | ..... | |
| AIR 1985SC1224 | Relied on. | Para 8 | ||
| D | AIR 1987SC350 | Relied on. | Para 8 | |
| AIR 1989SC1890 | Relied on. | Para 8 | ||
| AIR 1954SC621 | Relied on. | Para 8 | " | |
| E | 1996 (10)sec193 | Relied on. | Para 9 | |
| AIR 1990SC79 | Relied on. | Para 10 | ||
| 1992 Crl.LJ 1104 | Relied on. | Para11 | ,I | |
| AIR 1952SC343 | Relied on. | Para 14 | ||
| F | AIR 1984SC1622 | Relied on. | Para 15 | |
| 2005(3)sec114 | Relied on. | Para 16 | ||
| 2006 (10)sec112 | Relied on. | Para 15 | ||
| G | 2008(8)sec45 | Relied on. | Para 17 | |
| 2005(12)sec438 | Relied on. | Para 17 | )' | |
| CRIMINALAPPELLATE |
JURISDICTION:Cr | iminalAppeal | > .,, |
No. 1969 of 2008.
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ARUN BHAKTA@ THULU v. STATE OF WEST BENGAL
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From the final Judgment and Order dated 8.2.2007 of the A High Court of Calcutta at Calcutta in Crl. Appeal No. 390 of 2003.
Anil Kumar Mittal (A.C.) for the Appellant.
Avijit Bhattacharjee and Saumya Kundu, for the B Respondent.
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The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
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Jyotsna (hereinafter referred to as the 'deceased') was E married to the appellant. They were blessed with a child. Satish Mallick, PW 8 was the father of the deceased and Kulu Mallick, PW 9 was the mother of the deceased. On the fateful day the deceased and the accused were sleeping together i.e. on 5.4.1999. At about 5 O'clock on 5.4.1999 Malati Mallick, the F elder sister of the deceased reported to the complainant and told him that his elder sister wa~ lying in a pool of blood. Thereafter he went to the bedroom of Jyotsna and found that she was lying dead on a pool of blood and there was a cut mark in the right side of her neck. At that time the accused was not G present. Since the accused and the deceased were sleeping together after taking their food, the de-facto complainant concluded that the accused had killed his wife. Matter was reported at the police station. After investigation charge sheet was placed and the accused faced trial. In his cross H
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A examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') the accused took the plea of alibi. Since it was a case of circumstantial evidence the trial court referred to certain circumstances to find the accused guilty. The appellant preferred an appeal before the High Court B which as noted above was dismissed.
o 5. Learned counsel for the State on the other hand supported the order of the High Court.
E "(a) The appellant and Jyotsna @Mithila were married to each other.
(b) The couple had a little child.
(c) The appellant used to reside for quite some time in his F in-laws' house and used to earn his living by plying a rickshaw. •
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(d) Between the nights of 4/5-4-1999 the dead body of Jyotna was found in her house with her throat slit with G profuse bleeding.
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(e) There was a recovery of the axe by PW 6 after being led by the appellant from the house of PW 8 along with a blood stained shirt of the appellant on 5.4.1999 at 20.15 hours in the presence of PW 2 Sushil Bhakta and one
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ARUN BHAKTA@ THULU v. STATE OF WEST BENGAL [DR ARIJIT PASAYAT, J.]
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Muchiram Soren (not examined).
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(f) Both the axe and the shirt contained bloodstains
(g) PW 7 Uma kanta Singh sent the same to the Forensic Laboratory for examination.
(h) The report marked as Exh.5 shows that insufficient blood for serological test was detected in the shirt and in the handle of the axe and the serological Test Report shows as the bloodstains on the axe were disintegrated its origin could not be detected.
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(i) The seizure List (Exh.2) leading to the recovery of the axe and the shirt of the appellant was also signed by the appellant himself.
(j) The sketch Map (Exh. 7) prepared by PW 7 Uma KantaD Singh also shows that the place of occurrence has been described as the house of PW 8.
(k) The Post Mortem Report was marked as Exh.9. However, the doctor was not examined and the same E would be admissible for whatever worth it is for."
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A 8. 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 other person. (See B Hukam s;ngh v. State,of Rajasthan AIR (1977 SC 1063); · Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); , State of U. P. v. Sukhbasi and Ors. (Al R 1985 SC 1224 ); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok c Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circum·sta·nces 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. In Bhagat ·D Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the 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 the offences home beyond any reasonable doubt.
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E 9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 sec. 193, wherein it has been observed thus:
"In a case based on circumstanti~I evidence, the settled law is that the circumstances from which the conclusion of F guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Fu.rther the proved circumstances must be consistent only with the hypothesis G of the guilt of the accused and totally inconsistent with his innocence .... ".
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10 .. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon H circumstantial evidence, such evidence must satisfy the
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ARUN BHAKTA@ THULU v. STATE OF WEST BENGAL [DR ARIJIT PASAYAT, J.]
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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;
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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 c .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 D and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
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A adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and in~apable of explanation, upon any other reasonable hypothesis than that of his guilt, ·(5) if there be any reasonable doubt of the guilt of Bthe accused, he is entitledasof right tobe acquitted".
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"It is well to remember that in cases where the evidence D is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should E be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the F innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
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ARUN BHAKTA@ THULU v. STATE OF WEST BENGAL [DR ARIJIT PASAYAT, J.]
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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;
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(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
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(5) there must be a chain of evidence so complete 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 !he act must have been done by the accused."
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"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and F 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 G 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, I it would be hazardous to come to a conclusion of guilt in ,H
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B [2006(1 O) sec 172) it was noted as follows:
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Appeal allowed.
2 issues framed by the court
Whether the prosecution proved the last seen theory given resiled testimony?
What are the conditions for conviction based solely on circumstantial evidence?
Colour shows how this judgement treated each authority
Hukam Singh v. State of RajasthanRelied on¶8
Hukam Singh v. State of Rajasthan AIR 1977 SC 1063 · Who else cites this
Etadu and Ors. v. State of HyderabadRelied on¶8
Etadu and Ors. v. State of Hyderabad AIR 1956 SC 316 · Who else cites this
Earabhadrappa v. State of KarnatakaRelied on¶8
Earabhadrappa v. State of Kamataka AIR 1983 SC 446 · Who else cites this
State of U.P. v. Sukhbasi and Ors.Relied on¶8
State of U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224 · Who else cites this
Bawinder Singh v. State of PunjabRelied on¶8
Bawinder Singh v. State of Punjab AIR 1987 SC 350 · Who else cites this
Ashok Kumar Chatterjee v. State of M.P.Relied on¶8
Ashok Kumar Chatterjee v. State of M.P. AIR 1989 SC 1890 · Who else cites this
Bhagat Ram v. State of PunjabRelied on¶8
Bhagat Ram v. State of Punjab AIR 1954 SC 621 · Who else cites this
C. Chenga Reddy and Ors. v. State of A.P.Relied on¶9
C. Chenga Reddy and Ors. v. State of A.P. 1996 (10) SCC 193 · Who else cites this
Padala Veera Reddy v. State of A.P. and Ors.Relied on¶10
Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 · Who else cites this
State of U.P. v. Ashok Kumar SrivastavaRelied on¶11
State of U.P. v. Ashok Kumar Srivastava 1992 Crl.LJ 1104
Hanumant Govind Nargundkar and Anr. v. State of Madhya PradeshRelied on¶14
Hanumant F Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343 · Who else cites this
Sharad Birdhichand Sarda v. State of MaharashtraRelied on¶15
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 · Who else cites this
State of U.P. v. SatishRelied on¶16
State of U.P. v. Satish 2005 (3) SCC 114 · Who else cites this
Ramreddy Rajeshkhanna Reddy v. State of A.P.Relied on¶17
Ramreddy Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172 · Who else cites this
Bodhraj v. State of PunjabRelied on¶17
Bodhraj v.State of Punjab 2005(8)SCC 45 · Who else cites this
Jaswant Gir v. State of PunjabRelied on¶17
Jaswant Gir v. State of Punjab 2005(12) SCC 438 · Who else cites this
2 provisions across 2 enactments
ARUN BHAKTA @ THULU
STATE OF WEST BENGAL
DR. ARIJIT PASAYAT
P. SATHASIVAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
