KANHAIYA LALversusSTATE OF RAJASTHAN

                        [2014] 3 S.C.R 744


A                          KANHAIYA LAL
                                  v.
                      STATE OF RAJASTHAN
                (Criminal Appeal No. 595 of 2014)

                         MARCH 13, 2014
B
            [T.S. THAKUR AND C. NAGAPPAN, JJ.]

        PENAL CODE, 1860:

C      ss. 302 and 201 - Murder - Circumstantial evidence -
  Dead body recovered from the well belonging to accused-
  appellant - Appellant and deceased stated to have been last
  seen together previous night - Witness declared hostile - Held:
  In the instant case, circumstance of last seen together does
  not by itself and necessarily lead to the inference that it was
0 appellant who committed the crime - Mere non-explanation
  on the part of appellant, by itself cannot lead to proof of guilt
  against him - Motive is not established -Conviction of
  appellant cannot be maintained merely on suspicion, however
  strong it may be, or on his conduct -- Conviction and sentence
E imposed on appellant are set aside and he is acquitted of the
  charge, by giving him benefit of doubt - Evidence -
  Circumstantial evidence.

       The appellant (accused A-2) and accused A-1 were
F prosecuted in connection with the murder of the brother
  of PW4. The prosecution case was that at about 9 p.m.
  on 31-08-2003, the appellant-accused and the deceased
  visited PW4 and bought a bottle of liquor. When the
  deceased did not reach his home till the morning, his wife
G ( PW10) went to the house of PW4, who told her about
  the visit of the deceased and A-2 on the previous night.
  When PW10 accompanied by PW11 went to the house of
  A-2 and did not find the deceased there, she lodged a
  report about the missing of her husband. The villagers
H                            744
         KANHAIYA LAL v. STATE OF RAJASTHAN             745
     •

found the belongings of the deceased floating in the well      A
of A-2. PW3 lodged another report at the Police station.
Police took out the body of the deceased and registered
a case of offenses punishable u/ss 302 and 201 IPC. A-2
and A-1 were arrested. The trial court convicted A-2 u/s
302 and 201 IPC and sentenced him to imprisonment for          B
life and 3 years RI respectively under the two counts. A-
1 was acquitted of the charge. The High Court affirmed
the conviction and sentences of A-2.
     Allowing the appeal, the Court
      HELD: 1.1 From the medical evidence it is clear that
                                                               c
 the deceased suffered a homicidal death. However,
 nobody witnessed the occurrence and the case rests on
 circumstantial evidence. It has been consistently laid
 down by this Court that where a case rests squarely on
 circumstantial evidence, the inference of guilt can be        D
 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
 to the guilt of the accused is drawn have to be proved        E
 beyond reasonable doubt and have to be shown to be
 closely connected with the principal fact sought to be
 inferred from those circumstances. [para 8 and 10] [749-
 G-H; 750-A-B, G]
                                                               F
       1.2 The primary, if not the solitary basis of the
  conviction of the appellant is on the theory of last seen,
  as the deceased along with accused A-2 visited the
  house of PW4 at 9.00 pm on 31.8.2003. PW4 did not fully
  support the prosecution case and was declared hostile.       G
  He has stated that on the occurrence night A-2 and the
  deceased came to his house and he gave one bottle of
..-liquor and they returned together. It is the testimony of
. PW10 that her husband did not return home on the
  occurrence night and in the morning she went to the
  house of PW4 and inquired and came to know from him          H
    746     SUPREME COURT REPORTS                 (2014] 3 S.C.R.

A about the visit of her husband along with accused A-2 to
  his house in the night. Though PW4 was treated as
  hostile witness, the above testimony of him is
  corroborated by the testimony of PW10. [para 11] (750-
  G-H; 751-A-D]
B     1.3 The circumstance of last seen together does not
  by itself and necessarily lead to the inference that it was
  the appellant who committed the crime. There must be
  something more establishing connectivity between the
  accused and the crime. Mere non-explanation on the part
C of the appellant, by itself cannot lead to proof of guilt
  against him. [para 12] (751-D-E]
        1.4 The alleged illicit intimacy of the appellant with the
  wife of PW3, the brother of the deceased, is said to be
  the cause for the occurrence. According to PW3, his wife
0 left him four years back and was residing with her parents
  in a different village. PW3 and PW10 have categorically
  stated in their testimonies that there was no dispute
  between the deceased and the appellant and they had
  cordial relationship. Thus, the motive alleged by the
E prosecution that the deceased, as elder of the family
  dissuaded the appellant to sever his illicit relationship
  with his sister-in-law had triggered the murder, is not
  established. [para 13] (751-E-F; 752-A-C]
F      1.5 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 that there was cordial
  relationship between the appellant and the deceased for
G a long time.In the circumstances, it is not possible to
  sustain the impugned judgment of conviction and
  sentence. The conviction and sentence imposed on the
  appellanUaccused A-2 are set aside and he is acquitted
  of the charge by giving him benefit of doubt. [para 14-15)
H [752-C-F)
     KANHAIYA LAL v. STATE OF RAJASTHAN                   747


     Madho Singh vs. State of Rajasthan (2010) 15 SCC 588         A
- referred to.
                     Case Law Reference:

    (2010) 15 sec 588         referred to           para 14
                                                                  B
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 595 of 2014.

    From the Judgment and Order dated 17.04.2012 of the
High Court of Judicature for Rajasthan at Jodhpur in D.B.
Criminal Appeal No. 515 of 2004.                                  C

   Mohd. Adee! Siddiqui, B.K. Jha, Mohd. lrshad Hanif, N.A.
Usmani for the Appellant.

    Ruchi Kohli, Nidhi Jaswal for the Respondent.                 D
    The Judgment of the Court was delivered by

    C. NAGAPPAN, J. 1. Leave granted.

    2. This appeal is preferred against the judgment of the       E
High Court of Judicature for Rajasthan at Jodhpur, in D.B. Crl.
Appeal No.515 of 2004.

      3. The appellant herein Kanhaiya Lal, is accused No.2 in
Sessions Trial No.01 of 2004 on the file of Additional Distri~t
& Sessions Judge, Fast Track No.1, Dungarpur, and he was          F
tried for the alleged offences under Section 302 and 201 IPC
and on being found guilty was convicted and sentenced to
undergo imprisonment for life and to pay fine of Rs.1000 in
default to undergo simple imprisonment for 6 months for the
offence under Section 302 IPC and further sentenced to            G
undergo 3 years Rigorous Imprisonment and to pay a fine of
Rs.500 in default to undergo simple imprisonment for 3 months
for the offence under Section 201 IPC, and the sentences were
ordered to run concurrently. Accused No.1 Raman Lal was also
tried along with accused No.2 Kanhaiya Lal for the alleged        H
    748       SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A offence under Section 201 IPC and was acquitted of the said
  charge. Challenging the conviction and sentence, accused No.2
  Kanhaiya Lal preferred the appeal in D.B. Criminal Appeal
  No.515 of 2004 and the High Court by judgment dated
  17.4.2012 dismissed the appeal. Challenging the same the
B appellant Kanhaiya Lal has preferred the present appeal.

          4. The case of the prosecution in a nut shell is as follows:
     PW10 Smt. Shantibai is the wife of deceased Kala. PW3 Kama
     is the younger brother of Kala. Accused Kanhaiya Lal is the
     brother of PW4 Hurma. They are all residents of Gesu ka bagh
C   village. PW4 Hurma returned home at 8.00 p.m. on 31.8.2003.
    At about 9.00 p.m. accused Kanhaiya Lal and Kala came to
     his house and demanded Daru and PW4 Hurma gave one
    bottle and received a sum of Rs.15/- from the accused
    Kanhaiya Lal. Thereafter, both of them went away together. Kala
D   did not return home in the night and in the morning PW1 O his
    wife Shantibai along with PW11 Dhula went to the house of PW
    4 Hurma and inquired about her husband. PW4 Hurma told
    them about Kala visiting his house with Kanhaiya Lal the
    previous night and their returning together from his house. PW
E   10 Shanti Bai and PW 11 Dhula went to the house of the
    accused Kanhaiya Lal and he was not found there. PW10
    Shantibai lodged a report at the Police Station about the
    missing of her husband. The villagers found Muffler, shoes and
    tobacco pouch floating in the well of accused Kanhaiya Lal.
F   PW3 Kama lodged Ex.P10 written report before the Police
    Station Bichhiwara. Police took out the body of Kala from the
    well and a case came to be registered in Ex.P10 FIR No.230
    of 2003 for the alleged offences under Section 302 and 201
    IPC. PW12 Fateh Singh Chauhan took up the investigation.
G   Ex.P11 is the spot map. Ex.P13 is the Panchayatnama. Ex.P14
    is the seizure Memo of shoes, Muffler and tobacco pouch.

        5. PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal
    conducted the post-mortem and found the following injuries:

H         "External injuries:
      KANHAIYA LAL v. STATE OF RAJASTHAN                     749
               [C. NAGAPPAN, J.)
     1. Abrasion 5 x 2 cm on the left side of the neck.              A

     2. Bruise 3 x 2 cm on the parietal aspect of the neck in
the right side and all these injuries were anti mortem.

    On the internal examination he found the fracture of Hyoid
bone anteriorly."                                                    B

     They expressed opinion that the cause of death of Mr. Kala
is due to neurogenic shock as well as haemorrhagic shock and
the time of death was from 36 to 48 hours prior to the post-
mortem.                                                              c
     Ex.P10 is the post-mortem report issued by them.

     6. The accused were arrested and on completion of the
investigation final report came to be filed. In order to prove the
case, the prosecution examined 15 witnesses and marked 26            D
documents. No witness was examined on the side of the
defence. The accused were questioned under Section 313
Cr.P.C. and their answers were recorded. The trial court found
accused No. 2 Kanhaiya Lal guilty of the charges under
Sections 302 and 201 IPC and sentenced him as narrated               E
above. The trial court found accused No.1 Ramam Lal not guilty
of the charge and acquitted him. Accused No.2 Kanhaiya Lal
preferred the appeal and the High Court dismissed the appeal
by confirming the conviction and sentence imposed on him.
Aggrieved by the same he has preferred the present appeal.           F

    7. We heard the learned counsel appearing on behalf of
the appellant and the learned counsel appearing for the
respondent State.

     8. The prosecution case is that the appellanUaccused            G
Kanhaiya Lal committed the murder of Kala by strangulation
and threw the body in the well. Nobody witnessed the occurrence
and the case rests on circumstantial evidence. It has been
consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can      H
    750          SUPREME COURT REPORTS              (2014] 3 S.C.R.


A 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 to the guilt of the
  accused is drawn have to be proved beyond reasonable doubt
B and have to be shown to be closely connected with the principal
  fact sought to be inferred from those circumstances.

         9. The prosecution in order to prove its case mainly relied
    on the following circumstances :
c         i)      The death of Kala was homicidal in nature;

          ii)     Kala was last seen with accused Kanhaiya Lal when
                  both of them visited the house of PW4 Hurma on
                  the occurrence night.
D         iii)     Kala objected to the illicit intimacy of accused
                   Kanhaiya Lal with the wife of his younger brother
                   PW3 Kama and that led to the occurrence.

       10. The autopsy on the body of Kala was conducted by
E two doctors and one of them namely Dr. Rajesh Sharma has
  been examined as PW1. According to him two external injuries
  were found on the neck namely an abrasion 5x2 cm on the left
  side of the neck and bruise 3x2 cm on the parietal aspect of
  the neck in the right side and on its internal examination he
F noticed the fracture of vertebrae c3 & c4 and the fracture of
  Hyoid bone anteriorly and all the injuries were anti mortem. It
  is opined that the cause of death of Kala is due to neurogenic
  shock as well as hemorrhagic shock. Ex.10 is the post mortem
  report. Accepting the medical evidence it is clear that Kala
G suffered a homicidal death.

       11. The primary, if not the solitary basis of the conviction
  of the appellant is on the theory of last seen, as the deceased
  Kala along with accused Kanhaiya Lal visited the house of PW4
  Hurma at 9.00 pm on 31.8.2003. PW4 Hurma did not fully
H support the prosecution case and was declared hostile. In his
      KANHAIYA LAL v. STATE OF RAJASTHAN                       751
               [C. NAGAPPAN, J.]
examination-inchief he has stated that on the occurrence night         A
he returned home at 8.00 pm and about 9.00 pm accused
Kanhaiya Lal and Kala came to his house and demanded Daru
and he gave one bottle and received a sum of Rs.15/- from the
accused Kanhaiya Lal and they returned together and the next
day morning wife of Kala PW10 Shantibai came and inquired              B
him about her husband Kala and he told her about the visit of
Kala with accused Kanhaiya Lal to his house the previous night.
It is the testimony of PW10 Shantibai that her husband Kala
did not return home on the occurrence night and in the morning
she went to the house of PW4 Hurma and inquired and came               c
to know from him about the visit of her husband along with
accused Kanhaiya Lal to his house in the night. Though PW4
Hurma was treated as hostile witness, the above testimony of
him is corroborated by the testimony of PW10 Shantibai.

      12. The circumstance of last seen together does not by           D
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    E
the appellant.

      13. The alleged illicit intimacy of the accused Kanliaiya Lal
with Kam Ii, wife of PW3 Kama, is said to be the cause for the
occurrence. According to PW3, his wife Kamli left him four years       F
back and is residing with her parents in Sanchiya village. PW
10 Shantibai also in her testimony has confirmed that Kam Ii has
been living in village Sanchiya for 4-5 years. It reveals that they
were not living together for a number of years. It is the further
testimonty of PW 3 Kama that he has never seen Kamli and               G
accused Kanhaiya Lal together and no person in the village told
him so and it is only his brother Kala who informed him about
the illicit intimacy between them. In this context it is relevant to
point out that wife of Kala namely PW10 Shantibai in her
testimony has not alleged any illicit relationship between Kamli       H
    752     SUPREME COURT REPORTS                   [2014] 3 S.C.R.

A and accused Kanhaiya Lal. In such circumstances it is doubtful
  as to whether there was any illicit intimacy between them as
  alleged. Further PW3 Kama and PW10 Shantibai have
  categorically stated in their testimonies that there was no
  dispute between the deceased Kala and accused Kanhaiya Lal
B and they had cordial relationship. Thus the motive alleged by
  the prosecution that Kala, as elder of the family dissuaded
  accused Kanhaiya Lal to sever his illicit relationship with his
  sister-in-law Kamli had triggered the murder, is not established.

       14. The theory of last seen - the appellant having gone with
C 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
D of proof of motive particularly when it is proved 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 vs. State of Rajasthan (2010) 15 SCC 588.

E       15. In view of the aforesaid circumstances, it is not possible
  to sustain the impugned judgment and sentence. This appeal
  is allowed and the conviction and sentence imposed on the
  appellant/accused Kanhaiya Lal are set aside and he is
  acquitted of the charge by giving benefit of doubt. He is directed
F to be released from the custody forthwith unless required
  otherwise.

    R.P.                                           Appeal Allowed.