Arun Bhakta @ Thulu Vs.
State of West Bengal  INSC 2095 (5 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICITON CRIMINAL APPEAL NO. 1969 OF 2008
(Arising out of SLP (Crl.) No. 3164 of 2007) Arun Bhakta @ Thulu ...Appellant
Versus State of West Bengal ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Calcutta High
Court dismissing the appeal filed by the appellant and upholding the conviction
for offence punishable under Section 302 of the Indian Penal Code,1860 (in
short the `IPC') and sentence of imprisonment for life and fine of Rs.1,000/-
with default stipulation.
version as unfolded during trial is as follows:
referred to as the `deceased') was 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 elder sister of the deceased reported to the
complainant and told him that his elder sister was 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 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 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 which as noted above was dismissed.
counsel for the appellant with reference to the evidence of witnesses submitted
that though 11 circumstances were highlighted to hold the appellant guilty,
none of them can really be called to be a circumstance to fasten the guilt on
the accused. It was submitted that though the so called last seen aspect was
highlighted by the trial court and the High Court, the evidence of the
witnesses clearly show that the factual scenario was totally different.
counsel for the State on the other hand supported the order of the High Court.
circumstances highlighted by the trial court to find the appellant guilty are
appellant and Jyotsna @Mithila were married to each other.
(b) The couple had a
(c) The appellant
used to reside for quite some time in his in-laws' house and used to earn his
living by plying a rickshaw.
(d) Between the
nights of 4/5-4-1999 the dead body of Jyotna was found in her house with her
throat slit with profuse bleeding.
(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 Muchiram Soren (not
(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.
(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 Kanta 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 would be admissible for whatever worth it is
analyzing factual aspects it may be stated that for a crime to be proved it is
not necessary that the crime must be seen to have been committed and must, in
all circumstances be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence can be proved by
circumstantial evidence also.
The principal fact or
factum probandum may be proved indirectly by means of certain inferences drawn
from factum probans, 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.
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 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. (AIR 1985 SC 1224); Balwinder
Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of
M.P. (AIR 1989 SC 1890). 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 (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
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"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 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....".
Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
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 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 and such evidence
should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt.
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be 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 incapable of explanation, upon any other reasonable hypothesis than that of
his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he
is entitled as of right to be acquitted".
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch-stone of law relating to circumstantial
evidence laid down by this Court as far back as in 1952.
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to
remember that in cases where the evidence 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 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 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."
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances
should be of a conclusive nature and tendency;
(4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so 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 the act must have been done by the accused."
State of U.P. v. Satish [2005(3) SCC 114] it was noted as follows:
last-seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would be difficult in some
cases to positively establish that the deceased was last 10 seen with the
accused when there is a long gap and possibility of other persons coming in
between exists. In the absence of any other positive evidence to conclude that
the accused and the deceased were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases. In this case there is positive
evidence that the deceased and the accused were seen together by witnesses PWs
3 and 5, in addition to the evidence of PW 2."
Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006(10) SCC 172] it was noted
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case the courts should look for some corroboration."
(See also Bodhraj v.
State of J&K (2002(8) SCC 45).)"
(Also see Jaswant Gir
v. State of Punjab (2005(12) SCC 438).
18. So far as the
evidence relating to the last seen aspect is concerned 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 appellant had not come to his house. PW 1
is the sister of the deceased. PW 8 the de- facto complainant i.e. the father
of the deceased resiled from the statement made during investigation and 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 and the
deceased were seen together in the house it would be unsafe to direct his
conviction. The prosecution has failed to prove the accusations. That being so,
the conviction of the appellant is set aside and he is acquitted of the
Since he is in
custody let him be released forthwith unless required to be in custody in any
...J. (Dr. ARIJIT PASAYAT)