Supreme Court of India
ARUN BHAKTA @ THULUversusSTATE OF WEST BENGAL
- Citation
- 2008 INSC 1405
- Decided
- 5 December 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The conviction was unsafe and the accused was acquitted as the prosecution failed to prove the essential circumstantial elements beyond reasonable doubt.
Summary
Arun Bhakta (Thulu) was convicted under Section 302 IPC for the murder of his wife Jyotsna, based largely on circumstantial evidence and the "last seen" theory that the couple were together the night before her death. The prosecution's case relied on statements of witnesses that were later contradicted: the sister claimed they slept together, while the mother and father later denied any such cohabitation. The Supreme Court examined the standards for conviction on circumstantial evidence and held that the prosecution failed to prove the last‑seen aspect beyond reasonable doubt, rendering the conviction unsafe. Consequently, the Court set aside the conviction and acquitted the accused. The judgment reiterates the stringent tests for reliance on circumstantial evidence in murder cases.
Issues considered
- Whether the prosecution proved the "last seen" theory and other circumstantial facts beyond reasonable doubt to sustain a conviction under Section 302 IPC.
- Whether the contradictory witness statements create reasonable doubt sufficient to overturn the conviction.
Legislation cited
Subjects
murdercircumstantial evidencelast seen theoryconvictionacquittalIPC 302criminal lawevidentiary standards
Judgment
[2008] 17 S.C.R. 73
ARUN BHAKTA @ THULU A
v.
,. STATE OF WEST BENGAL
(Criminal Appeal No.1969 of 2008)
DECEMBER 5, 2008 B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
....., 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 accused c
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.
D
Evidence - Circumstantial evidence - Reliance on -
Held: Conviction can be based on such evidence - Condition
precedent for reliance before conviction, discussed.
Appellant-accused was prosecuted uls. 302 IPC for
having killed his wife. According to prosecution there was E
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, F
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 G
the conviction. Hence, the present appeal.
"(
Allowing the appeal, the Court
,._
HELD: 1. The prosecution has failed to prove tl'le
73 H
74 SUPREME COURT REPORTS [2008) 17 S.C.R.
e
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
B deceased. 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 ,._
c and the deceased were $een together in the house it
~ould be unsafe to direct his conviction. [Par~ 18) [84-
. : ....,, .. :·.,
.
0-F]
2.1. For a crime to be proved it is not necessary that .
the crime must be seen to have been committed and
D 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 ".'II
proved by circumstantial evidence also. The principal fact
or factum probandum may_ be proved indirectly by means
E 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
F form a chain of circumstances from which the existence
of the principal fact can be legally inferred or. presumed.
[Para 7) [79-F-H] ·
·-
"
2.2. Where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when
G
all the incriminati'ng facts and circumstances are found
to be incompatible with the innocence of the accused- or
y
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
H
... ARUN BHAKTA@ THULU v. STATE OF WEST
BENGAL
75
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
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 H
-·
76 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
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) SCC 45 and Jaswant Gir
v. State of Punjab 2005(12) sec 438, relied on.
Case Law Reference:
'>--
AIR 1977 SC 1063 Relied on. Para 8
c AIR 1956 SC 316 Relied on. Para 8
.....
AIR 1983 SC 446 Relied on. Para 8
AIR 1985 SC 1224 Relied on. Para 8
D AIR 1987 SC 350 Relied on. Para 8
AIR 1989 SC 1890 Relied on. Para 8
AIR 1954 SC 621 Relied on. Para 8 "
1996 (10) sec 193 Relied on. Para 9
E
AIR 1990 SC 79 Relied on. Para 10
1992 Crl.LJ 1104 Relied on. Para 11 ,I
AIR 1952 SC 343 Relied on. Para 14
F
AIR 1984 SC 1622 Relied on. Para 15
2005 (3) sec 114 Relied on. Para 16
2006 (10) sec 112 Relied on. Para 15
G 2008 (8) sec 45 Relied on. Para 17
2005(12) sec 438 Relied on. Para 17 )'
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal .,,>
No. 1969 of 2008.
H
·-.
ARUN BHAKTA@ THULU v. STATE OF WEST 77
BENGAL
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.
..,/ The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
c
2. Challenge 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 D
fine of Rs.1,000/- with default stipulation.
3. Prosecution version as unfolded during trial is as
follows:
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
78 SUPREME COURT REPORTS [2008] 17 S.C.R.
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.
4. Learned 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
C 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.
o 5. Learned counsel for the State on the other hand
supported the order of the High Court.
6. The circumstances highlighted by the trial court to find ·
the appellant guilty are as follows:
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. •
(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.
(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
H
ARUN BHAKTA@ THULU v. STATE OF WEST 79
BENGAL [DR ARIJIT PASAYAT, J.]
• Muchiram Soren (not examined). A
(f) Both the axe and the shirt contained bloodstains
(g) PW 7 Uma kanta Singh sent the same to the Forensic
Laboratory for examination.
B
(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. c
(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 D
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."
I
7. Before 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
li
be proved by direct ocular evidence by examining before the F
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 G
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. H
e
80 SUPREME. COURT REPORTS [2008] 17 S.C.R.
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.
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
F 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. 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 .... ".
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
ARUN BHAKTA@ THULU v. STATE OF WEST 81
BENGAL [DR ARIJIT PASAYAT, J.]
following tests: A
"(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 B
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 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.
11. In State of U.P. v. Ashok Kumar Srivastava, (1992
Crl.LJ 1104), it was pointed out that great care must be taken E
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 F
established must be consistent only with the hypothesis of guilt.
12. Sir 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
G
evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt
'( connected with the factum probandu!TI; (2) the burden of proof
is always on tlie 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 H
82 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
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
B the accused, he is entitled as of right to be acquitted".
13. There 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.
v
14. In Hanumant Govind Nargundkar and Anr. V. State
-
~
of Madhya Pradesh, (AIR 1952 SC 343), wherein it was
observed thus:
D "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
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."
15. A reference may be made to a later decision in
G 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
r
the chain is complete and the infirmity of lacuna, in prosecution
cannot be cured by false defence or plea. The conditions ~
H precedent in the words of this Court, before conviction could
ARUN BHAKTA@ THULU v. STATE OF WEST 83
BENGAL [DR ARIJIT PASAYAT, J.]
be based on circumstantial evidence, must be fully established. A
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; B
(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;
c
(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
D
(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." E
16. In State of U.P. v. Satish [2005(3) SCC 114] it was
noted as follows:
"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, itI
would be hazardous to come to a conclusion of guilt in ,H
84 SUPREME COURT REPORTS [2008] 17 S.C.R.
A· 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."
17. In Ram reddy Rajesh Khanna Reddy v. State of A.P.
B [2006(1 O) sec 172) it was noted as follows:
"27. The l_ast-seen theory, furth~rmore, comes into play
where t.he time gap between the point of time when the ~·
accl:fs~d and the deceased were· .last seen alive and the
c deceased i~ found dead is so small that possibility ofany
person' :other than the accused being the author of. the
crime becomes impossible. Even in such a case the courts
shou.ld look for some· corroboration."
(See also Bodhraj v. State .ofJ&K (2002(8) SCC 45).)"
D
(Also ·see Jasvyant 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
.E 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
st~t~ment made during ·investigation and stated that he had not
told anybody that appellant was sleeping with the deceased.
-
F
lh view ofthe diametrically opposite version as to whether the r
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 charges.
G
Since he is in custody let him be released forthwith unless
required to be in custody in any other ca·se.
r
19. Appeal is allowed.
;.
K.K.T. Appeal allowed.
H
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