Rajasthan High Court - Jodhpur

Satish vs State on 3 December, 2021

Bench: Arun Bhansali, Anoop Kumar Dhand

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

D.B. Criminal Appeal NO. 522 / 2015

Kishan @ Kishan Lal s/o. Mangla Ram, aged about 26 years, r/o.

- Ward No. 4, Prem Nagar, Anoopgarh, District - Sriganganagar.

(At present lodged at Sub Jail, Anoopgarh)

-----Appellant

VERSUS

The State of Rajasthan through P.P.

-----Respondent

Connected with

D.B. Criminal Appeal NO. 70 / 2020

Satish s/o. Hari Kishan, aged about 25 years, r/o. - Ward No. 4,

Prem Nagar, Anoopgarh, District - Sriganganagar. (At present

lodged at Sub Jail, Anoopgarh)

-----Appellant

VERSUS

The State of Rajasthan through P.P.

-----Respondent

For Appellant(s) : Mr. H.S.S. Kharlia, Sr. Advocate assisted by Mr. Deependra Rajpurohit & Ms. Kinjal Purohit.

For Respondent(s) : Mr. B.R. Bishnoi, P.P.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

03/12/2021

(2 of 21)

(PER HON'BLE MR. ARUN BHANSALI, J.)

The accused-appellants have preferred the instant

appeals under Section 374(2) Cr.P.C. aggrieved against the

judgment dated 30.04.2015 passed by Additional

Sessions Judge, Anoopgarh, District - Sriganganagar ('the trial

court') in Sessions Case No. 26/2012, whereby appellants -

Kishan @ Kishan Lal and Satish have been convicted and

sentenced as under:-

OFFENCE U/S        SENTENCE                   FINE                 IN DEFAULT
302                Life Imprisonment          Rs. 10,000/-         1 Year S.I.

Brief facts relevant and essential for disposal of the appeals

are as under:-

On 03.08.2012, an FIR No. 433/2012 (Exhibit - 25) was

registered at Police Station - Anoopgarh, District -

Sriganganagar on the basis of written report (Exhibit - 10)

submitted by Teeja Devi (PW-2); in the written report, she

alleged that on 01.08.2012, wallet of her son Rupi @ Rooplal was

picked up by Kishan Balmiki s/o. Mangla Ram, Govind s/o. Gopal

and Satish s/o. Bugga Ram. On getting information regarding the

pick-pocketing by them, in the morning at about 12 O'clock these

persons were called and inquired about the wallet. After taking

meals at about 4 PM, Rupi @ Rooplal went with Kishan, Govind

and Satish on the motorcycle, driven by Kishan Balmiki, they

went to her brother Bansilal at Banda Colony, stayed there for

some time and went off; her son did not return home in the night

and at 8.30 AM in the morning, her nephew Sethi s/o. Bansilal

(3 of 21)

informed her that Rupi's dead body was lying at 79 GB, which

was lying in the channel near the road. Then she alongwith her

brother Bansilal and her father Nathu Ram and other members of

the family went to the site, where Kishan Balmiki, Govind Balmiki

and Satish Dhanak had together killed her son Rupi, aged 25

years by inflicting injuries and, therefore, action be taken.

After registration of the FIR, investigation was undertaken

by Amarjeet Chawla, SHO, Police Station - Anoopgarh, who went

to the site prepared Panchnama of the dead body (Exhibit - P/5),

collected evidence from the site i.e. bloodstained soil, piece of

broken brick, which appeared to be bloodstained, prepared site

map, the dead body was subjected to autopsy by the Medical

Board, which issued the postmortem report (Exhibit - 24),

statements of witnesses were recorded and pictures from the site

were taken. On 09.08.2012, both the accused - Satish and

Kishan @ Kishan Lal were arrested vide Exhibit - P/11 and P/12

respectively. Kishan gave information under Section 27 of the

Evidence Act and got recovered the motorcycle from his house;

on 11.08.2012, Kishan gave information about the place of

altercation. On the information of Kishan, wallet was recovered.

Kishan & Satish also got recovered brick pieces, which were

seized and were sealed.

After concluding investigation, a charge-sheet was filed

against the appellants for offence punishable under Section 302

and in the alternative 302/34 IPC.

(4 of 21)

The trial court framed charges against both the accused-

appellants under Section 302 and in the alternative 302/34 IPC.

The accused-appellants pleaded not guilty and claimed trial.

The prosecution examined 15 witnesses and exhibited 39

documents to prove its case. The accused-appellants, upon being

questioned under Section 313 Cr.P.C. and when confronted with

the circumstances appearing against them in the prosecution

evidence denied the same, claimed to be innocent and made a

prayer for leading defence evidence, but finally no oral evidence

was led in defence.

After hearing the arguments advanced by the learned Public

Prosecutor and the learned defence counsel and upon

appreciating the evidence available on record, the trial court

proceeded to convict and sentence the appellants as indicated

hereinbefore.

The accused-appellants have preferred the present appeals

being aggrieved of the judgment dated 30.04.2015.

Learned counsel for the appellants vehemently contended

that the entire prosecution case is false and fabricated. The

prosecution has failed to bring home the charges against the

accused on the strength of circumstance of last seen as deposed

by PW-2 Teeja Devi-complainant and mother of the deceased,

PW-8 Phoolwanti and PW-12 Bado Bai, sisters of the deceased,

which evidence on their part, cannot be even termed as last seen

evidence, inasmuch as, as per the complaint (Exhibit - 10) and

statement of PW-2 Teeja Devi, the deceased alongwith the

accused, went to the house of his maternal uncle Bansilal and

(5 of 21)

from there, they left, however, PW-1 Bansilal, real maternal uncle

of the deceased has turned hostile, the said Bansilal (PW-1)

alone could have deposed about last seen as per the prosecution

story, in absence thereof, theory of last seen is baseless.

Further submissions were made that the entire story of

recovery of weapon of offence i.e. brick pieces at the instance of

the accused is wholly cooked up and on its face improbable as

from the same place at the instance of accused - Kishan,

recovery is shown at 8.30 AM and on the same day, at the

instance of Satish at 10 AM, recovery from the same place is

shown. Further, the malkhana register (Exhibit - 39A) reveals

clear-cut interpolation.

Important witness - Sethi son of Bansilal, who claims to

have informed the complainant - Teeja Devi about seeing the

dead body, has been withheld. PW-9 Jaspal, who claims to be

eye-witness of the altercation between the accused-appellants

and the deceased, clearly admitted that he did not know the

accused-appellants prior to the incident, however, no test

identification parade was held. Further, his conduct in not

informing the family of the deceased about the altercation itself

creates doubt on veracity of his presence.

With reference to the various exhibited documents prepared

by the police and time indicated thereon, learned counsel

submitted that apparently the entire story is cooked-up, the

documents clearly show that they have been prepared sitting at

one place and the accused-appellants have been implicated.

(6 of 21)

Further submissions were made that the postmortem report

(Exhibit - 24) indicates incised wounds and Dr. K.S. Kamra (PW-

11) in his statement indicated that the same were from a sharp

edged weapon, however, the allegations and the recovery

pertains to pieces of brick, which can only create lacerated

wound and not incised wound and, therefore, the allegations are

wholly baseless. Qua the recovery made, there are no

independent witnesses and that a look at the mechanical report

(Exhibit - 15) of the motorcycle indicates that the motorcycle

was badly damaged, which indicates that the death probably

occurred on account of some accident.

It was vehemently submitted qua the appellant - Satish

that in the complaint (Exhibit -10), it was the specific case that

Satish Dhanak s/o. Buggaram went with deceased Rupi, whereas

the appellant - Satish is son of Hari Kishan, he has been

implicated and there is no explanation whatsoever in this regard

as to how instead of Satish Dhanak s/o. Buggaram, the appellant

- Satish s/o. Hari Kishan came to be implicated.

Reliance has been placed on Brijesh Mavi v. State (NCT of

Delhi) : (2012) 7 SCC 45; Musheer Khan @ Badshah Khan & Anr.

v. State of Maharashtra : AIR 2010 SC 762 and Mani v. State of

Tamil Nadu : AIR 2008 SC 1021.

On the above grounds, learned counsel for the appellants

submitted that the appeals be allowed, the impugned judgment

be set aside and the appellants be acquitted from all the charges.

(7 of 21)

Per contra, learned Public Prosecutor, vehemently opposed

the submissions advanced by learned counsel for the appellants

and submitted that the prosecution has proved its case as

against the appellants by leading cogent and convincing evidence

forming a complete unbroken chain of circumstantial evidence.

The witness PW-2 Teeja Devi, PW-8 Phoolwanti and PW-12

Bado Bai, clearly stated that the deceased went with the

appellants and PW-9 Jaspal saw the altercation between the

appellants and the deceased Rupi. Further, the recovery of brick

pieces at the information of the appellants complete the chain of

circumstance.

Further submissions were made that no suggestion was

given to Dr. K.S. Kamra (PW-11) that the injuries suffered by the

deceased were not from brick and that the FSL report (Exhibit -

P/38) clearly indicates the Blood Group 'B' of the deceased on the

blood smeared soil, bloodstained brick and pieces of brick

recovered at the instance of appellants, which clearly proves the

case beyond any reasonable doubt.

On these submissions, learned Public Prosecutor sought

dismissal of the appeals and affirmation of the impugned

judgment.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and carefully re-appreciated the evidence

available on record.

Suffice it to say that the case of the prosecution is

based purely on circumstantial evidence in the form of last

(8 of 21)

seen and recovery of pieces of broken brick at the instance of

appellants.

The prosecution has mainly relied on the last seen theory.

PW-2 Teeja Devi, mother of the deceased in her statement

indicated that Rupi informed her that he alongwith Kishan,

Govind and Satish was going to Banda Colony and when in the

evening Rupi did not returned back, she telephone her brother

Bansilal, resident of Banda Colony, he informed her that Rupi

alongwith 3 boys has left his place and on the next day, her

nephew Sethi s/o. Bansilal informed her that dead body of Rupi

was lying at 79 GB and that Satish and Kishan have murdered

him.

PW-8 Phoolwanti, sister of the deceased stated that her

uncle resides at Banda Colony and that Rupi alongwith Satish and

Govind left on motorcycle toward Banda, Rupi did not return

home back and on the next day, they telephone her maternal

uncle, who informed that Rupi had came to him and 3 boys had

also come and that he had left yesterday.

PW-12 Bado Bai, another sister of the deceased, also

deposed that in the Banda Colony her maternal uncle resides, all

the 4 left on motorcycle and the brother did not return back till

night, they kept waiting for him and on the next day morning,

son of uncle informed that Rupi has died.

From the above three statements, it is more than apparent

that the deceased alongwith three persons left his house for his

uncle's house, stayed there and then it is claimed that Rupi left

(9 of 21)

with three of them. The said fact, which is also indicated in the

complaint (Exhibit - 10) regarding the deceased going to Banda

Colony and from there leaving with three persons including the

accused-appellants, clearly signifies that witnesses PW-2, PW-8

and PW-12 in one voice deposed about the deceased victim

leaving for Banda Colony, as to from Banda Colony, with whom

the deceased left, it is only Bansilal, the maternal uncle of the

deceased, who could have deposed so as to complete the chain

of events in the three persons leaving with the deceased from his

house as its the consistent case that Rupi had left with the

accused to his uncle's house and from there they left together.

However, said Bansilal, maternal uncle of the deceased,

who was examined as PW-1, was declared hostile, who denied

that the documents (Exhibits - P/2, P/3 and P/4) were prepared

in his presence, claimed that signatures were taken on blank

papers, the police did not take his statements and that Exhibit -

P/8, PW-1's statement under Section 161 Cr.P.C. were fake. It is

also significant to note that while confronting PW-1 with his

statements recorded under Section 161 Cr.P.C., the entire

statement was marked from A to B i.e. the witness was

apparently not confronted with material portions of the

statement.

Hon'ble Supreme Court in Kanhaiyalal v. State of Rajasthan

: (2014) 4 SCC 715 on the circumstance of last seen, inter alia,

laid down as under:-

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing

(10 of 21)

connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

Further, in Nizam & Ors. v. State of Rajasthan : (2016) 1

SCC 550, again it was observed as under:-

"14. .................... 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 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 and keeping in mind the circumstances that precede and follow the point of being so last seen."

In view of the above missing link in the evidence of last

seen as relied on by the prosecution, it is not safe to rely solely

on the last seen.

The other important evidence relied on by the prosecution

pertains to the alleged recovery of pieces of broken brick from

the appellants.

A perusal of the postmortem report (Exhibit - 24), reveals

incised wound on forehead right side 4 cm X 0.5 cm, bone deep,

incised wound on forehead near the said injury 3 cm X 0.5 cm,

bone deep, incised wound on head left parietal region and the

cause of death has been indicated as shock and injury to the

most vital part of body - Brain. Dr. K.S. Kamra (PW-11) clearly

opined that on the head of the deceased, there was injury from a

sharp edged weapon.

The allegation in the present case pertains to the accused-

appellants using brick for causing injury to the deceased.

(11 of 21)

The submission made that only lacerated wound could be

caused by a brick and that the same cannot lead to an incised

wound, is essentially based on surmises, inasmuch as, the said

aspect, was not put to Dr. K.S. Kamra (PW-11) and that the

postmortem report clearly indicated that the injury had resulted

in fracture in skull and due to injury to the brain, the deceased

died, as such the plea, sought to be raised based on the nature

of injury and the use of alleged weapon, cannot be accepted.

Coming to most important aspect of the recovery of pieces

of broken brick allegedly recovered at the instance of the

appellants, used for committing the offence and relied on to

complete chain of circumstance, it is important to notice that the

dead body was recovered on 03.08.2012 from the site as

indicated in the site map (Exhibit - P/9) and in the site

description (Exhibit - P/9A), the indication made is that near the

dead body, one bloodstained brick was lying, which was

recovered.

The claim made is that the recovery of broken piece of brick

at the instance of Satish was made on 13.08.2012 i.e. after 10

days from the date of incident, at 10 AM vide Exhibit - 13 and

site map (Exhibit - P/21) was prepared, the brick piece was not

bloodstained. Surprisingly, same morning on 13.08.2012, at 8.30

AM vide Exhibit - 14 at the instance of Kishan @ Kishan Lal,

another broken piece of brick was recovered from the same

place, from where the body was recovered on 03.08.2012 as is

evident from comparison of Exhibit - P/9 site map dated

03.08.2012 & site map dated 13.08.2012 (Exhibit - P/20).

(12 of 21)

It is incomprehensible as to how, when on 03.08.2012, the

police had surveyed/searched the site of incidence, though one

brick, which was bloodstained was recovered, the other piece of

broken brick, which were lying around the same area only could

not be recovered and even when on 13.08.2012 at 8.30 AM, one

brick was recovered at the instance of accused - Kishan, the

other brick, was recovered at the instance of accused - Satish on

the same day at 10 AM. Both the accused were admittedly

arrested on 09.08.2012 while Kishan was arrested at 2.05 PM

and Satish was arrested at 2.15 PM.

The claim of recovery at the instance of the accused of the

broken pieces of brick, the purported weapons of offence on

13.08.2012, is highly doubtful in view of the statement of Kamal

Lal Meena (PW-14), Malkhana in-charge and the extract of

malkhana register (Exhibit - P/39A). The said witness indicated

that on 03.08.2012, he was posted at the Malkhana, on which

date, the SHO Amarjeet Chawla handed over 7 packets and

motorcycle, which were registered by him at No. 194/711 and on

04.09.2012, the said packets - A, B, C, D, E and F were handed

over to one Chhail Singh for FSL examination and he gave back

the receipt on 05.09.2012 regarding deposit of the articles with

the FSL.

Exhibit - P/39A, indicates the following 7 items from mark-

A to mark-G and another entry made at item No.8, as under:-

(13 of 21)

"FSLtek [email protected] ¼1½ otg lcqr 'khYM ,d S/V lrh'k 3-8-12 Jh vejthr vkt fnukad 4-9-12 dks iSfdV feV~Vh [kqu vkywnk dqekj flag C.I. Jh Nsyflag Fc 1443 ekdZ ¼A½ FIR 433/3-8-12 dks okLrs djkus fpV~Bh /kkjk 302] 201] tkjh S.P. dk;kZy;

¼2½  otg lcqr ,d iSfdV 120B IPC
     'khYM feV~Vh lknk                                              G.M.R.     fd;k x;k
     ekdZ ¼B½                                                       vUos"k.k i= ok 'khy'kqnk
                                                                    iSdsV (A) (B) (C) (D) (E)
                                                                    (F) lgh       gkyr esa
                                                                    laHkyk; o fgnk;r nh
                                                                    xbZ dh fpV~Bh tkjh
                                                                    djokdj FSL esa tek
                                                                    djkosA

                                                                      vkt fnukad 10-9-12 dks
                                                                      Jh Nsyflag Fc 1443
                                                                      fnuakd 4-9-12 dk x;k
                                                                      gqvk okn djokdj
                                                                      fpV~Bh      tkjh     'khy
                                                                      iSdsV'kqnk FSL tks/kiqj esa
                                                                      tek djokdj fnukad 5-
                                                                      9-12 dh jlhn Øekad
                                                                      ua- 274 dh gejk ykdj
                                                                      is'k dhA
¼3½    otg lcqr ,d iSfdV
       'khYM ftlesa ,d bZaV [kqu
       vkywnk ekdZ ¼C½
¼4½    otg lcqr ,d iSfdV
       'khYM ftlesa ik'pkr [kqu
       vkywnk ekdZ ¼C½ :ih mQZ
       :iyky ekdZ ¼D½
                                   ..................... 13-8-12
¼5½    otg lcqr ,d iSfdV
       'khYM ftlesa ,d bZaV dk
       VqVk gqvk fgLlk vyk,
       dRy eqy- fd'kuyky ekdZ
       ¼E½
¼6½    otg lcqr ,d iSfdV
       'khYM ftlesa ,d bZaV dk
       VqdM+k ,yk; dRy eqy-
       lrh'k ekdZ ¼F½
¼7½    otg lcqr ,d iSfdV
       'khYM ftlesa ,d ilZ
       eqyfte lrh'k ekdZ ¼G½
¼8½    otg lcqr ,d m/c                          11-8-12               vkt fn- 9-10-12 dks
       ckWDlj ctkt ua- RJ13-                                          vnkyr MJM lkŒ APG
       4M-8385     v- ------ eq-                                      ds vkns'k Øekad 888
       fd'kuyky                                                       fn- 4-10-12 dh ikyuk
                                                                      esa ,d m/c RJ13-4M-
                                                                      8385 eqrkfcd vkns'k
                                                                      dh tksrjke s/o rk:jke
                                                                      uk;d R/o fcatksj
                                                                      iqjkuk ds lqiqnZ fd;k
                                                                      jlhn gejk yh xbZA
                                                                                                "





                                      (14 of 21)

While in front of item Nos. 1 to 4 in the form, date

03.08.2012 has been indicated, item No.5, date in the form ......

13.08.2012 as the date of deposit has been indicated and at item

No.8 in the form date of 11.08.2012 as the date of deposit has

been indicated. The item at No.8 is the motorcycle, which was

recovered on 11.08.2012 by Exhibit - P/15.

As such the fact that the purported broken pieces of brick,

which are claimed to have been recovered at the instance of the

accused-appellants on 13.08.2012 vide Exhibit - P/13 & P/14,

from the above documentary evidence becomes highly doubtful,

as though the said bricks have been claimed to have been

deposited on 13.08.2012, the said entry appears above, the date

11.08.2012 when the motorcycle was recovered vide Exhibit -

P/15 & deposited and the statement of Malkhana in-charge (PW-

14) that all the 7 articles were deposited on 03.08.2012, clearly

indicates that the said brick pieces, which have purportedly been

recovered at the instance of appellants, cannot be connected to

them, rather the submissions made by counsel for the appellant

that the same were collected from the site from around the dead

body and have been planted on the said appellants gains

credence. As such the above evidence can't be relied against the

appellants.

The reliance place on the statement of PW-9, who is stated

to be eye-witness of the altercation between the deceased and

the appellants needs to be examined closely.

(15 of 21)

The witness Jaspal Singh (PW-9), indicated that he knew

Rooplal, whose land was near his land; on 02.08.2012, the land,

which is near Banda Colony, which he has given on contract, he

went to look after it, when at about 9-9.30 PM, while he was

returning back and reached 79 GB, he saw that on side of the

road, 3 boys were fighting and a motorcycle was standing nearby

and one more boy was standing, when under the light of

motorcycle, he looked at them, one was Rupi @ Rooplal and

other 2 boys, who were beating him were drunk and miscreants

type, the boy standing near the motorcycle, was saying don't

beat and after seeing them fighting, he left the place and went to

his house. Next day, he came to know that out of 3 boys fighting,

one has been murdered, subsequently, he came to know that the

deceased was Rupi and after looking at the appellants present in

the Court identified them as those who were fighting with

Rooplal. In the cross-examination, he admitted that when he saw

the boys in the light of motorcycle, he only knew Rupi @ Rooplal

and prior to the date of his statement i.e. 01.07.2014, he has not

seen the accused.

From the statement of PW-9 Jaspal Singh, it is apparent

that he did not know the accused-appellants from before the date

of incident i.e. 02.08.2012 and saw them briefly under light of his

motorcycle at 9 - 9.30 PM and again saw them after passage of

2½ years on 01.07.2014 in the Court, no identification parade of

accused for the said witness, who claimed to be the eye-witness

(16 of 21)

of the altercation was done, which apparently is fatal to case of

the prosecution.

In view of the above fact situation regarding the statements

of PW-9, having seen the appellants 2½ years back at 9 - 9.30

PM under light of his motorcycle and thereafter identifying them

in the Court, the plea, apparently cannot be accepted.

Hon'ble Supreme Court in Dana Yadav v. State of Bihar :

(2002) 7 SCC 295, inter alia, laid down the importance of test

identification parade as under:-

"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in the Court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence."

Hon'ble Court has, inter alia laid down that if the witness

identifies the accused in the Court for the first time, the probative

value of such uncorroborated evidence becomes minimal so much

so that it becomes, as a rule of prudence and not law, unsafe to

rely on such a piece of evidence.

(17 of 21)

In view of the above, apparently the evidence of PW-9 as a

purported eye-witness of altercation between the accused-

appellants and the deceased, cannot be relied on.

The non-examination of Sethi, the son of Bansilal (PW-1),

who essentially was the first person, who had seen the dead

body and informed mother of the deceased regarding the dead

body at 79 GB, is also significant, apparently, the said material

witness has been withheld by the prosecution.

The Hon'ble Supreme Court in Brijesh Mavi (supra), while

dealing with a case of circumstantial evidence, inter alia,

observed as under:-

"27. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra which principles have been consistently followed in Tanviben Pankajkumar Divetia v. State of Gujarat, Vikram Singh v. State of Punjab, Aftab Ahmad Anasari v. State of Uttaranchal, Sanatan Naskar v. State of W.B. and Mohd. Arif v. State (NCT of Delhi)."

In the case of Nizam (supra), the Hon'ble Supreme Court

also dealing with a case of circumstantial evidence, inter alia,

observed as under:-

"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 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

(18 of 21)

evidence. Further, the proved circumstances must be consistent only with the 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 @ Bodha and Ors. v. State of Jammu & Kashmir MANU/SC/0723/2002 : (2002) 8 SCC 45, wherein this Court quoted number of judgments and held as under:

10. 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 Hukam Singh v. State of Rajasthan MANU/SC/0094/1977 : (1977) 2 SCC 99, Eradu v. State of Hyderabad MANU/SC/0116/1955 : AIR 1956 SC 316, Earabhadrappa v. State of Karnataka MANU/SC/0530/1983 : (1983) 2 SCC 330, State of U.P. v. Sukhbasi MANU/SC/0115/1985 : (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab MANU/SC/0160/1986 : (1987) 1 SCC 1 and Ashok Kumar Chatterjee v.

State of M.P. MANU/SC/0035/1989 :

1989 Suppl. (1) SCC 560) The circumstances 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 Ram v. State of Punjab MANU/SC/0158/1954 : 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 home the offences beyond any reasonable doubt.

11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. MANU/SC/0928/1996 : (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para

21)

21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion

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of 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. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

10. In Trimukh Maroti Kirkan v. State of Maharashtra MANU/SC/8543/2006 : (2006) 10 SCC 681, this Court held as under:

12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on 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 v. State of Punjab MANU/SC/0740/2012 : (2012) 11 SCC 205,Sampath Kumar v. Inspector of Police, Krishnagiri MANU/ SC/0188/2012 : (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi) MANU/SC/0919/2011 : (2011) 13 SCC 621 and a number of other decisions.

In the case of Kanhaiyalal (supra), it was again observed by

Hon'ble Supreme Court as under:-

"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. The circumstances from which an inference as

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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 view of the above discussion, we are of the firm opinion

that the evidence lead pertaining to the last seen is apparently

incomplete in absence of the statement of PW-1 Bansilal in this

regard.

Further, the prosecution theory regarding the recovery of

weapon of offence i.e. bricks in furtherance of information

provided by the appellants-accused to the investigating officer

under Section 27 of the Evidence Act, is totally cooked-up and in

such circumstance, cannot be read in evidence against the

accused-appellants.

The trial court committed a grave error while appreciating

the evidence and recording the findings of guilt against the

accused-appellants and convicting them by the impugned

judgment, which does not stand to scrutiny.

As a consequence, the instant appeals deserve to be and

are hereby allowed. The impugned judgment dated 30.04.2015