# Satya Pal Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-12
- **Case number:** Criminal Appeal No. 2349 of 2017
- **Bench:** Pritinker Diwaker, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-pal-singh-ors-in-jail-v-state-of-u-p-45844
- **Pages:** 14

## Headnote

circumstantial evidence - The only piece of
evidence against the appellants is the evidence
of last seen by (PW-2) and (PW-3) - - The
evidence of last seen is being treated as a weak
evidence and the same can be made basis for
conviction only when it is trustworthy and
inspire the confidence of the Court - It is a
settled proposition of law that suspicion
howsoever grave it is, it cannot take place of
evidence - The quality of evidence of PW-2 and
PW-3 regarding last seen of the accused
persons in the company of the deceased is not
very conclusive and clinching. It does not inspire
the confidence of the Court because but for this
evidence there is no other evidence on record
connecting the appellants in commission of
murder of the deceased- Where dead body of
the deceased was found near a canal in an open
space and thus it is difficult to hold that it is the
accused persons alone, who have killed her - No
FSL report on record and no other evidence to
establish as to in what manner these two
articles have been used in commission of
murder or carrying the dead body of the
deceased. Importantly, this seizure has been
made from the open place accessible to
everyone.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- Law is well
settled that while scrutinising the circumstantial
evidence, a Court has to evaluate it to ensure
the chain of events is established clearly and
completely to rule out any reasonable likelihood
of innocence of the accused.
In a case of circumstantial evidence, the
circumstances from which the conclusion of guilt
is to be drawn should be fully established and
should be consistent only with the hypothesis of
the guilt of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- Evidence
of " last seen"- The evidence of last seen is
being treated as a weak evidence and the same
can be made basis for conviction only when it is
trustworthy and inspire the confidence of the
Court - It is a settled proposition of law that
suspicion howsoever grave it is, it cannot take
place of evidence.
The evidence of the deceased having been " last
seen" in the company of the deceased is a weak
type of evidence and in order to secure the
conviction of the accused, the said evidence has
to be clinching and conclusive. It is settled law
that suspicion, however strong, cannot be
allowed to take the place of proof.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Section 106- Where dead body of

## Text

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6 All. Satya Pal Singh & Ors. Vs. State of U.P.
497
showing that Jitendra (A2) had exhorted Ram
Bhajan (A1) to kill Sarvesh. The incriminating
circumstances against him which appear to
have weighed with the trial court while
convicting Jitendra (A2) are that on the
command of his father Ram Bhajan, (A1),
while deceased Sarvesh and Jitendra (A2) were
arguing with each other, to get his licensed gun
from his house, he had gone to his house and
returned with his father's licensed gun and had
fired at deceased Sarvesh at the instigation of
his father. But the shot fired by him instead of
hitting Sarvesh had struck P.W.4 Rinkal. We
have already held that there is no reliable
evidence on record proving the aforesaid part of
occurrence. But the fact remains that if he had
not obeyed the command of his father and had
not brought his father's licensed gun from his
house, the incident may not have taken place at
all. The actions of Jitendra (A2) namely
bringing his father's gun from his house, his
firing at deceased Sarvesh although the shot did
not hit him, and then his father snatching the
same from his hands and firing at deceased
Sarvesh amount to acts done in furtherance of a
common intention. Therefore, we do not find
that the trial Judge committed any illegality or
infirmity in convicting Jitendra (A2) u/s 302/34
I.P.C.

33. Thus, upon a holistic view of the
entire facts and circumstances of the case and a
critical appraisal and evaluation of the evidence
on record both oral as well as documentary, we
find that although the prosecution has
succeeded in proving that deceased Sarvesh had
died as a result of fire-arm injuries received by
him from the gunshot fired by Ram Bhajan
(A1) from his gun which was brought by his
son Jitendra (A2) from his house on his
instructions but the prosecution has not been
able to prove by any cogent evidence that
Rinkal had received fire-arm injuries at the
hands of Jitendra (A2). Hence, the conviction of
the accused-appellants recorded u/s 307/34
I.P.C. cannot be sustained and is liable to be setaside.

34. Thus for the aforesaid reasons, the
conviction of accused-appellants recorded
u/s 302/34 I.P.C. and the sentence of
imprisonment for life awarded to them is
confirmed. But the accused-appellants are
acquitted of the charge u/s 307/34 I.P.C.
framed against them.

35. The appeal stands allowed in part
and the impugned judgement and order
stands modified to the aforesaid extent.

36. The accused-appellants are on
bail.
Chief
Metropolitan
Magistrate,
Kanpur Nagar shall forthwith get the
accused-appellants,
Ram
Bhajan
and
Jitendra arrested and sent to jail for serving
out the remaining part of their sentences.
----------
(2020)06ILR A497
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.06.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 2349 of 2017
&
Criminal Appeal No. 2547 of 2017
&
Criminal Appeal No. 3237 of 2017
&
Criminal Appeal No. 2433 of 2017

Satya Pal Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ram Babu Sharma, Sri Ardhendhu
Shekhar Sharma, Sri Santosh Kumar Tiwari
498 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A., Sri J.K. Upadhyay

No eye-witness account to the incident and the
entire case of the prosecution is based on
circumstantial evidence - The only piece of
evidence against the appellants is the evidence
of last seen by (PW-2) and (PW-3) - - The
evidence of last seen is being treated as a weak
evidence and the same can be made basis for
conviction only when it is trustworthy and
inspire the confidence of the Court - It is a
settled proposition of law that suspicion
howsoever grave it is, it cannot take place of
evidence - The quality of evidence of PW-2 and
PW-3 regarding last seen of the accused
persons in the company of the deceased is not
very conclusive and clinching. It does not inspire
the confidence of the Court because but for this
evidence there is no other evidence on record
connecting the appellants in commission of
murder of the deceased- Where dead body of
the deceased was found near a canal in an open
space and thus it is difficult to hold that it is the
accused persons alone, who have killed her - No
FSL report on record and no other evidence to
establish as to in what manner these two
articles have been used in commission of
murder or carrying the dead body of the
deceased. Importantly, this seizure has been
made from the open place accessible to
everyone.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- Law is well
settled that while scrutinising the circumstantial
evidence, a Court has to evaluate it to ensure
the chain of events is established clearly and
completely to rule out any reasonable likelihood
of innocence of the accused.
In a case of circumstantial evidence, the
circumstances from which the conclusion of guilt
is to be drawn should be fully established and
should be consistent only with the hypothesis of
the guilt of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- Evidence
of " last seen"- The evidence of last seen is
being treated as a weak evidence and the same
can be made basis for conviction only when it is
trustworthy and inspire the confidence of the
Court - It is a settled proposition of law that
suspicion howsoever grave it is, it cannot take
place of evidence.
The evidence of the deceased having been " last
seen" in the company of the deceased is a weak
type of evidence and in order to secure the
conviction of the accused, the said evidence has
to be clinching and conclusive. It is settled law
that suspicion, however strong, cannot be
allowed to take the place of proof.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Section 106- Where dead body of
the deceased was found near a canal in an open
space and thus it is difficult to hold that it is the
accused persons alone, who have killed her.
The fact that the dead body of the deceased
was found at an open place, easily accessible to
all, would not shift the burden of proof upon the
accused persons as the said fact cannot be
especially within the knowledge of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 27- Recovery and seizure- Of a rope
and gunny bag upon the instance of the
accused from an open place- No FSL report on
record and no other evidence to establish as to
in what manner these two articles have been
used in commission of murder or carrying the
dead body of the deceased. Importantly, this
seizure has been made from the open place
accessible to everyone.
The recovery of two articles upon the instance
of the accused from an open place , easily
accessible to all, and without any corroborative
evidence of the Forensic Science Laboratory
would not be a relevant fact under Section 27 of
the Evidence Act so as to connect the accused
with the commission of the offence. (Para 18,
20, 21, 22, 23)

Criminal Appeal allowed. (E-3)

Case Law relied upon:-

1. Vikramjit Singh @ Vicky Vs St. of Punj. (2006)
AIR SCW 6197

2. Satpal Vs St. of Har.; AIR (2018) SC 2142

3. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Maha, (2008) 3 SCC 210
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
499
4. Devi Lal Vs St. of Raj.; AIR (2019) SC 688

5. Digamber Vaishnav Vs St. of Chhattis.; AIR
(2019) SC 1367

6. Anjan Kumar Sarma & ors. Vs St. of Assam;
(2017) 14 SCC 359

7. Kali Ram Vs St. of H. P, ;(1973) AIR SC 2773

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. As all these four appeals arise out
of a common judgement and order dated
27.04.2017 passed by Additional District &
Sessions Judge, Court No. 13, Aligarh in
Sessions Trial No. 575 of 2012 (State vs.
Kaptan Singh & Ors.), convicting the
accused-appellants under Sections 498A,
302/149, 201, 120B of IPC, P.S. Khair,
District Aligarh and sentencing accusedappellants Satya Pal Singh, Smt. Munesha
Devi and Pankaj under Section 302/149 of
I.P.C. to undergo imprisonment for life and
a fine of Rs. 25,000/- each, in default
thereof, to further undergo one year
rigorous imprisonment, further sentencing
all the accused-appellants to undergo five
years rigorous imprisonment under Section
201 and a fine of Rs. 10,000/- each, in
default thereof, to further undergo three
months additional rigorous imprisonment;
to undergo imprisonment for life under
Section 120B and a fine of Rs. 15,000/-
each, in default thereof, to further undergo
one year rigorous imprisonment and to
undergo three years simple imprisonment
under Section 498A and a fine of Rs.
10,000/- each, in default thereof, to further
undergo one month's additional simple
imprisonment, they are being disposed of
by this common order.

2. In the present case, the name of
deceased is Smt. Anita, wife of accused
Kaptan
Singh.
Their
marriage
was
solemnized about 6-7 years prior to the date
of incident i.e. 02.02.2012. It is alleged that
deceased was subjected to cruelty for
demand of Rs. 2 lakhs for expansion of
business of her husband. However, the
same could not be paid to the husband on
account of poor financial condition of the
father and brother of the deceased. It is said
that a month prior to the date of incident, a
Panchayat meeting was called at village
Nandpur Pala, which was attended by the
accused persons including villagers and in
the said meeting, complainant Nagendra
Singh (PW-1), brother of the deceased and
his family members were threatened for
either giving Rs.2 lakhs or to face dire
consequences.
Further
case
of
the
prosecution is that on 02.02.2012, there
was a marriage in the relation of the
complainant at Delhi, deceased left her
house from village Nandpur Pala but she
did not reach to Delhi. Near village Khair,
at a place called Barka, dead body of the
deceased was found near a canal. On the
basis of written report lodged by Nagendra
Singh (PW-1), brother of the deceased on
03.02.2012, FIR Ex. Ka.2 was registered at
01.30 p.m. against the accused persons,
Kanti Devi and one Subhash under
Sections 498A, 304B, 201 of IPC read with
Section 3/4 of Dowry Prohibition Act.

3. Inquest on dead body was
conducted vide Ex. Ka.11 on 03.02.2012
and the body was sent for postmortem,
which was conducted on 04.02.2012 vide
Ex. Ka.6 by PW-6 Dr. R. Bihari.

4. As per Autopsy Surgeon, following
injuries have been found on the body of the
deceased:

"(i) Contusion 4cm x 3cm over
left forehead.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Abraded contusion 5cm x 4cm
over right forehead.

(iii) Ligature mark 26cm x 1.5cm
over front of both side of neck between chin
and thyroid cartilage interrupted on back
of neck area of 4cm ligature mark directed
upward and backward on both brown hard.
On dissection glistering white present
underneath the ligature mark echymosis
present in subcutaneous tissue."

The cause of death of the deceased
was due to asphyxia as a result of
antemortem hanging.

5. Though Subhash has been made
accused in the FIR but after investigation,
charge-sheet was not filed against him. It
was filed against the appellants and one
Kanti Devi, Jethani of the deceased.
However, the said Kanti Devi expired
during pendency of the trial.

6. While framing charge, the trial
court has framed charge against the
accused persons under Sections 498A,
302/149, 201, 120B of IPC.

7. So as to hold the accused appellants
guilty, prosecution has examined eight
witnesses. Statements of accused persons
were also recorded under Section 313
Cr.P.C. in which, they pleaded their
innocence and false implication.

8. By the impugned judgment, the
trial Judge has convicted the accused
appellants under Sections 498A, 302/149,
201, 120B of IPC and sentenced them as
mentioned in paragraph no. 1 of this
judgement. Hence these appeals.

9. Learned counsel for the appellants
submits:

(i) that there is no eye-witness
account to the incident and the appellants
have been convicted solely on the basis of
weak circumstantial evidence.

(ii) that the main piece of
evidence against the accused persons is the
evidence of last seen by Rajendra Pal Singh
(PW-2) and Raju (PW-3). However, the
said evidence is not conclusive in nature
and merely based on the same, the
appellants cannot be convicted specially
when there is no other evidence against
them.

(iii) that in Section 313 Cr.P.C.
statement, accused Kaptan Singh, husband
of the deceased, had taken specific defence
that while the deceased was going to Delhi
to attend the marriage in her relative's
house, she appears to have been killed by
someone.
Learned
counsel
for
the
appellants have placed their strong reliance
on the judgment of the Apex Court in
Vikramjit Singh @ Vicky vs. State of
Punjab (2006) AIR (SCW) 6197.

10. On the other hand, supporting the
impugned judgment, it has been argued by
the State counsel:

(i) that the conviction of the
appellants is in accordance with law and
there is no infirmity in the same. He
submits that conviction can be based even
solely on the basis of last seen evidence
provided that the said evidence inspires the
confidence of this Court and present is one
of such case.

(ii) that there was strong motive
for the appellants to commit the murder of
the deceased as in the Panchayat meeting,
the accused persons have openly threatened
the family members of the deceased for
dire consequences.
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
501

(iii) that once the deceased died
homicidal death, burden lies on the
appellants to explain as to how she died.

(iv) that when the appellants were
supposed to go along with the deceased to
Delhi, they are under the obligation to offer
suitable explanation as to under what
circumstances,
the
deceased
died.
Admitting for the sake of argument that the
deceased might have been killed by third
person and could not reach to Delhi,
appellants were under the obligation to at
least search the deceased as to where she
had gone. He placed reliance on the
judgment of the Apex Court in Satpal vs.
State of Haryana; AIR 2018 SC 2142.

11. We have heard counsel for the
parties and perused the record.

12. Nagendra Singh (PW-1), is the
brother of deceased and the informant. He
states that the marriage of deceased was
solemnized with Kaptan Singh about 6-7
years prior to the incident and about Rs. 5
lacks were spent in the said marriage. The
accused persons were not satisfied with the
dowry given in the marriage and for
expansion of their business, they were
demanding Rs. 2 lacks from the deceased.
He states that all the accused persons were
residing at Nandpur Pala at Khair. About a
month prior to the incident, he was called
by the accused persons in their house and
there also, the demand was repeated. He
further states that at village Nandpur Pala, a
Panchayat meeting was also called, which
was attended by the accused persons
including accused Vinod and Chota and in
the said meeting also, demand was repeated
and a threat for dire consequences was
extended. He states that on 02.02.2012,
marriage of his cousin was to take place at
Delhi and deceased was also supposed to
attend the same. On 02.02.2012, on phone,
accused Kaptan Singh had informed him
that he would also be attending the said
marriage along with the deceased and two
other accused persons namely Vinod and
Chota and another relative Subhash. He
states that when accused persons and the
deceased did not reach to Delhi, he called
one Rajendra Pal Singh, who informed him
that all of them had gone to Delhi. On the
next day, accused Satyapal Singh called
him and enquired about the deceased and
his other family members but as they did
not reach to Delhi, he informed them
accordingly. He further states that when he
was going to village Khair, on the way near
Barka, he met certain persons, who
informed him that a dead body of a lady is
lying near the canal and the said dead body
was of the deceased. Naming all the
accused persons as accused, he states that
they have killed the deceased. He further
states that he could not get the whereabouts
of his niece Priyanshi aged 5 years for
some time and then the police recovered
the said child and handed over to him on
'Supurdhnama'. This witness was subjected
to various unnecessary questions in the
cross-examination. However, the contents
of the said cross-examination are that the
deceased was subjected to cruelty. He
states that the Panchayat was also attended
by him and he returned from the Panchayat
by saying that whenever he would arrange
Rs.2 lacks, the same would be given to the
accused
persons.
There
are
some
contradictions in the Court statement of this
witness, from his diary statement and that
of FIR lodged by him.

13. Rajendra Pal Singh (PW-2) was
the mediator in the marriage of deceased
and Kaptan Singh. He is a resident of
village Nandpur Pala where some of the
accused persons were also residing. He
states that in the marriage about Rs. 5 lakhs
were spent by the family members of the
502 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased. However, the accused Kaptan
Singh and his brother-in-law Subhash were
insisting for further Rs. 2 lakhs for which
all the accused persons used to harass the
deceased. He states that deceased was
ousted from village Khair and then she was
residing in her village Ballor. He further
states that from Ballor, deceased called him
and requested for settlement by saying that
how long she would reside in her parents'
house and accordingly a village Panchayat
was called. However, the accused persons
had insisted for Rs. 2 lakhs and somehow
deceased started living at Nandpur Pala. On
02.02.2012, there was a marriage of cousin
of the deceased at Delhi and on the same
day, at about 03.00 p.m., accused appellant
Kaptan Singh on his motorcycle took the
deceased and his daughter to Delhi and
before that the other accused persons
namely Vinod, Chota and Kanti Devi had
already left for Delhi. At about 08.00 p.m.,
he received a call from Nagendra Singh
(PW-1) that the deceased and her husband
have not reach Delhi and then they were
searched and later an information was
received about the dead body of one lady,
which was later identified to be that of the
deceased. He was suggested for falsely
implicating the accused persons for various
reasons but he has denied all those
suggestions.

14. Raju (PW-3) has also been
examined as witness of last seen. He states
that on 02.02.2012 at about 4.30 p.m.,
when he and his brother Narendra were
returning from the market of Khair, at
Somna trijunction, he saw accused Vinod,
Chota and Kanti Devi on a motorcycle,
who had covered their faces and on the
other bike he saw accused Kaptan Singh,
his daughter and the deceased and that they
were coming towards their house at Khair.
He further states that on the second day, he
came to know about the death of the
deceased and the fact that her dead body
was lying near a canal. He states that he
had gone to see the accused persons in their
house but their house was found to be
locked.

15. Rakesh Kumar (PW-4) is a police
constable who has proved the general diary
and the FIR. Om Prakash (PW-5) is the
Station House Officer of Khair, states that
at the instance of the accused Kaptan
Singh, from the field of one Prem Pal, one
gunny bag and a rope of about one meter
was seized vide Ex.Ka.5.

16. Dr. R. Bihari (PW-6) conducted
postmortem on the body of the deceased.
The cause of death of the deceased was
asphyxia due to hanging. He states that the
deceased died about one and a half day
prior to the date of postmortem, which was
conducted on 04.02.2012 at 00.15 a.m.

17. S.S. Rathi (PW-7) is the
Investigating Officer of the case. Vikram
Singh (PW-8) is a constable who assisted
during investigation.

18. Close scrutiny of the evidence
makes it clear that there is no eye-witness
account to the incident and the entire case
of
the
prosecution
is
based
on
circumstantial evidence. Law in respect of
circumstantial evidence is very clear.

19. In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra,
(2008) 3 SCC 210, the Supreme Court,
while dealing with circumstantial evidence,
observed as under:

"11.
In
Hanumant
Govind
Nargundkar v. State of M.P. [AIR 1952 SC
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
503
343], which is one of the earliest decisions
on the subject, this court observed as under:

"10. ...... 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."

12. In Padala Veera Reddy v.
State of AP [(1989) Supp (2) SCC 706],
this court held that when a case rests upon
circumstantial evidence, the following tests
must be satisfied:

"(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;

(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 committed by the
accused and none else."

13. In Sharad Birdhichand Sarda
v. State of Maharashtra [(1984) 4 SCC
116], it was held that the onus was on the
prosecution to prove that the chain is
complete and falsity or untenability of the
defence set up by the accused cannot be
made basis for ignoring serious infirmity or
lacuna in the prosecution case. The Court
then proceeded to indicate the conditions
which must be fully established before
conviction can be based on circumstantial
evidence. These 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."

Further in Satpal Vs. State of
Haryana; (2018) 6 SCC 610, the Supreme
Court has observed as under:

"6. We have considered the
respective submissions and the evidence on
record. There is no eye witness to the
occurrence but only circumstances coupled
with the fact of the deceased having been
last seen with the appellant. Criminal
jurisprudence and the plethora of judicial
precedents
leave
little
room
for
reconsideration of the basic principles for
invocation of the last seen theory as a facet
of
circumstantial
evidence.
Succinctly
stated, it may be a weak kind of evidence by
504 INDIAN LAW REPORTS ALLAHABAD SERIES
itself to found conviction upon the same
singularly.

But when it is coupled with other
circumstances such as the time when the
deceased was last seen with the accused,
and the recovery of the corpse being in
very close proximity of time, the accused
owes an explanation under Section 106 of
the Evidence Act with regard to the
circumstances under which death may have
taken place.

If
the
accused
offers
no
explanation,
or
furnishes
a
wrong
explanation,
absconds,
motive
is
established, and there is corroborative
evidence available inter alia in the form of
recovery or otherwise forming a chain of
circumstances leading to the only inference
for guilt of the accused, incompatible with
any possible hypothesis of innocence,
conviction can be based on the same. If
there be any doubt or break in the link of
chain of circumstances, the benefit of doubt
must go to the accused. Each case will
therefore have to be examined on its own
facts for invocation of the doctrine."

Recently, in Devi Lal vs. State of
Rajasthan, Criminal Appeal No.148 of
2010, decided on 08.01.2019, the Supreme
Court, while dealing with circumstantial
evidence, observed as under:

14. The classic enunciation of law
pertaining to circumstantial evidence, its
relevance and decisiveness, as a proof of
charge of a criminal offence, is amongst
others traceable decision of the Court in
Sharad Birdhichand Sarda Vs. State of
Maharashtra 1984 (4) SCC 116. The
relevant excerpts from para 153 of the
decision is assuredly apposite:

153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction between
"may be proved" and "must be or should be
proved" as was held by this Court in Shivaji
Sahabrao Bobade & Anr. Vs. State of
Maharashtra [(1973) 2 SCC 793 where the
observations were made:

"Certainly,
it
is
a
primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(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

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."

15. It has further been considered
by this Court in Sujit Biswas Vs. State of
Assam 2013 (12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015 (11)
SCC 43. It has been propounded that while
scrutinising the circumstantial evidence, a
Court has to evaluate it to ensure the chain
of events is established clearly and
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
505
completely to rule out any reasonable
likelihood of innocence of the accused. The
underlying principle is whether the chain is
complete or not, indeed it would depend on
the facts of each case emanating from the
evidence and there cannot be a straight
jacket formula which can be laid down for
the purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot be
a person other than the accused who alone
is the perpetrator of the crime alleged and
the circumstances must establish the
conclusive nature consistent only with the
hypothesis of the guilt of the accused."

Most recently, in Digamber Vaishnav
Vs. State of Chhattisgarh; AIR 2019 SC
1367 decided on 05.03.2019, the Apex
Court has held as under (with respect to
circumstantial evidence):

"15. One of the fundamental
principles of criminal jurisprudence is
undeniably that the burden of proof
squarely rests on the prosecution and that
the general burden never shifts. There can
be no conviction on the basis of surmises
and conjectures or suspicion howsoever
grave it may be. Strong suspicion, strong
coincidences and grave doubt cannot take
the place of legal proof. The onus of the
prosecution cannot be discharged by
referring to very strong suspicion and
existence of highly suspicious factors to
inculpate the accused nor falsity of defence
could take the place of proof which the
prosecution has to establish in order to
succeed, though a false plea by the defence
at best, be considered as an additional
circumstance,
if
other
circumstances
unfailingly point to the guilt.

16. This Court inJaharlal Das v.
State of Orissa, (1991) 3 SCC 27, has held
that even if the offence is a shocking one,
the gravity of offence cannot by itself
overweigh as far as legal proof is
concerned. In cases depending highly upon
the circumstantial evidence, there is always
a danger that the conjecture or suspicion
may take the place of legal proof. The court
has to be watchful and ensure that the
conjecture and suspicion do not take the
place of legal proof. The court must satisfy
itself that various circumstances in the
chain of evidence should be established
clearly and that the completed chain must
be such as to rule out a reasonable
likelihood of the innocence of the accused.
In order to sustain the conviction on the
basis of circumstantial evidence, the
following
three
conditions
must
be
satisfied:

i.) the circumstances from which
an inference of guilt is sought to be drawn,
must be cogently and firmly established;

ii.) those circumstances should be
of a definite tendency unerringly pointing
towards the guilt of the accused; and

iii.) 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 none else, and it should also
be incapable of explanation on any other
hypothesis than that of the guilt of the
accused."

20. If the above principles of law is
applied in the present case, what emerges is
that the only piece of evidence against the
appellants is the evidence of last seen by
Rajendra Pal Singh (PW-2) and Raju (PW3). If we analyze the evidence of these two
witnesses, both of them have stated that
they saw the accused persons coming
toward their own village Khair and not
towards the place Barka where the dead
body of the deceased was found. Raju
506 INDIAN LAW REPORTS ALLAHABAD SERIES
(PW-3) saw the accused Vinod, Chota and
Kanti Devi on a motorcycle, these persons
had covered their faces, and on the other
vehicle, he saw Kaptan Singh, the deceased
and their daughter. Here also evidence of
these witnesses becomes doubtful because
once some of the persons had covered their
faces,
while
sitting
on
motorcycle,
identification of such persons can be
doubted. It is not a case of PW-2 and PW-3
that they saw the accused persons taking
the deceased towards the place Barka
where her dead body was found. The
quality of evidence of PW-2 and PW-3
regarding last seen of the accused persons
in the company of the deceased is not very
conclusive and clinching. It does not
inspire the confidence of the Court because
but for this evidence there is no other
evidence
on
record
connecting
the
appellants in commission of murder of the
deceased.

21. The evidence of last seen is being
treated as a weak evidence and the same
can be made basis for conviction only when
it is trustworthy and inspire the confidence
of the Court. Law in this regard is well
settled. In the case of Anjan Kumar
Sarma And Ors. Vs. State of Assam;
(2017) 14 SCC 359, the Apex Court has
observed as under:

"14. Admittedly, this is a case of
circumstantial evidence. Factors to be
taken into account in adjudication of cases
of circumstantial evidence laid down by
this Court 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. (See: Sharad Birdhichand
Sarda v. State of Maharashtra (1984) 4
SCC 116 (para 185 & 153); M.G. Agarwal
v. State of Maharashtra AIR 1963 SC 200
(para 18).

19. The circumstance of last seen
together cannot by itself form the basis of
holding the accused guilty of the offence. In
Kanhaiya Lal v. State of Rajasthan, (2014)
4 SCC 715, this court held that:

"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
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. ..........

15. The theory of last seen--the
appellant having gone with the deceased in
the manner noticed hereinbefore, is the
singular piece of circumstantial evidence
available against him. The conviction of the
appellant cannot be maintained merely on
suspicion, however strong it may be, or on
his conduct. These facts assume further
importance on account of absence of proof
of motive particularly when it is proved
6 All. Satya Pal Singh & Ors. Vs. State of U.P.
507
that there was cordial relationship between
the accused and the deceased for a long
time. The fact situation bears great
similarity to that in Madho Singh v. State of
Rajasthan [(2010) 15 SCC 588]."

22. Mr. R. Venkataramani relied
upon Deonandan Mishra v. State of Bihar,
(1955) 2 SCR 570 at p.582, to buttress his
submission that the circumstance of last
seen together coupled with lack of any
satisfactory explanation by the accused is a
very strong circumstance on the basis of
which the accused can be convicted. It was
held by this Court in the above judgment as
follows: (AIR pp. 806-07, para 9)

"It is true that in a case of
circumstantial evidence not only should the
various links in the chain of evidence be
clearly established, but the completed
chain must be such as to rule out a
reasonable likelihood of the innocence of
the accused. But in a case like this where
the various links as stated above have been
satisfactorily
made
out
and
the
circumstances point to the appellant as the
probable
assailant,
with
reasonable
definiteness and in proximity to the
deceased as regards time and situation,
and he offers no explanation, which if
accepted, though not proved, would afford
a reasonable basis for a conclusion on the
entire case consistent with his innocence,
such absence of explanation or false
explanation would itself be an additional
link which completes the chain. We are,
therefore, of the opinion that this is a case
which satisfies the standards requisite for
conviction on the basis of circumstantial
evidence."

23. It is clear from the above that
in a case where the other links have been
satisfactorily
made
out
and
the
circumstances point to the guilt of the
accused, the circumstance of last seen
together and absence of explanation would
provide an additional link which completes
the chain. In the absence of proof of other
circumstances, the only circumstance of
last
seen
together
and
absence
of
satisfactory explanation cannot be made
the
basis
of
conviction.
The
other
judgments on this point that are cited by
Mr. Venkataramani do not take a different
view and, thus, need not be adverted to. He
also relied upon the judgment of this Court
in State of Goa v. Sanjay Thakran, (2007) 3
SCC 755 in support of his submission that
the circumstance of last seen together
would be a relevant circumstance in a case
where there was no possibility of any other
persons meeting or approaching the
deceased at the place of incident or before
the commission of crime in the intervening
period. It was held in the above judgment
as under:- (SCC p.776, para 34).

"34. From the principle laid
down by this Court, the circumstance of
last seen together would normally be taken
into consideration for finding the accused
guilty of the offence charged with when it is
established by the prosecution that the time
gap between the point of time when the
accused and the deceased were found
together alive and when the deceased was
found dead is so small that possibility of
any other person being with the deceased
could completely be ruled out. The time
gap between the accused persons seen in
the company of the deceased and the
detection of the crime would be a material
consideration for appreciation of the
evidence and placing reliance on it as a
circumstance against the accused. But, in
all cases, it cannot be said that the
evidence of last seen together is to be
rejected merely because the time gap
between the accused persons and the
deceased last seen together and the crime
coming to light is after (sic of) a
considerable long duration. There can be
508 INDIAN LAW REPORTS ALLAHABAD SERIES
no fixed or straitjacket formula for the
duration of time gap in this regard and it
would depend upon the evidence led by the
prosecution to remove the possibility of any
other person meeting the deceased in the
intervening period, that is to say, if the
prosecution is able to lead such an
evidence that likelihood of any person
other than the accused, being the author of
the crime, becomes impossible, then the
evidence of circumstance of last seen
together, although there is long duration of
time, can be considered as one of the
circumstances
in
the
chain
of
circumstances to prove the guilt against
such accused persons. Hence, if the
prosecution proves that in the light of the
facts and circumstances of the case, there
was no possibility of any other person
meeting or approaching the deceased at the
place of incident or before the commission
of the crime, in the intervening period, the
proof of last seen together would be
relevant evidence. For instance, if it can be
demonstrated by showing that the accused
persons were in exclusive possession of the
place where the incident occurred or where
they were last seen together with the
deceased, and there was no possibility of
any intrusion to that place by any third
party, then a relatively wider time gap
would not affect the prosecution case."

22. Though there is no explanation
from the accused persons in particular
accused Kaptan Singh as to how the
deceased died but present is a case
where dead body of the deceased was
found near a canal in an open space and
thus it is difficult to hold that it is the
accused persons alone, who have killed
her. There are as many as six accused
appellants in the present case and in
absence of any specific role assigned to
individual accused, it will not be safe
for this Court to uphold the conviction
of all the accused persons. Accused
Vinod and Pushpendra were made
accused merely on the evidence that
they attended the village Panchayat and
there
they
threatened
the
family
members of the deceased for giving the
dowry
amount
or
to
face
dire
consequences.