PADMAN BIBHARversusSTATE OF ODISHA

                 [2025] 5 S.C.R. 1116 : 2025 INSC 751

                              Padman Bibhar
                                     v.
                              State of Odisha
                    (Criminal Appeal No. 2748 of 2025)
                                 21 May 2025
           [Sanjay Karol and Prashant Kumar Mishra,* JJ.]


                           Issue for Consideration
       Whether appellant can be convicted only on the basis of evidence
       on ‘last seen together’.

                                  Headnotes†
       Penal Code, 1860 – ss.302, 201 – Murder – Circumstantial
       evidence – Last seen theory – Victim-deceased along with
       PW-1, PW-2 and appellant-accused went to a river to take
       bath – From there, the appellant/accused and the deceased
       went to cashew field – The appellant and the deceased did
       not return for long time, however, PW-1 and PW-2 returned
       to the village – On the next day, PW-3 (father of deceased)
       went to the riverside in search of his son and found his
       dead body floating in the river – PW-3 lodged FIR alleging
       that the appellant killed his son – Trial Court based on ‘last
       seen together’ and recovery of weapon together with motive
       held that chain of circumstantial evidence is completed and
       convicted the appellant – High court affirmed – Correctness:
       Held: The present is a case where except for the evidence of ‘last
       seen together’ there is no other incriminating material against the
       appellant – The evidence of motive does not satisfy this court to be
       an adverse circumstance against the appellant inasmuch as if the
       appellant has any doubt about his wife’s chastity, he would have
       caused injury or harm to his wife rather than to wife’s cousin with
       whom he had no animosity – Moreover, the so-called weapon of
       the offence i.e. the stone has not been recovered at his instance
       nor there is any memorandum statement of the appellant – The
       nature of circumstantial evidence available against the appellant
       though raises doubt that he may have committed murder but
       the same is not so conclusive that he can be convicted only on
       the basis of evidence on ‘last seen together’ – Thus, impugned
       judgment is set aside – Appellant acquitted. [Paras 19, 22, 23, 25]
* Author
[2025] 5 S.C.R.                                                       1117

                    Padman Bibhar v. State of Odisha


     Circumstantial Evidence – Prosecution is obliged to prove
     each circumstance, taken cumulatively to form a chain so
     complete that there is no escape from the conclusion that
     within all human probabilities, crime was committed by the
     accused and none else – Discussed. [Paras 10-12]
     Circumstantial Evidence – ‘Last seen together’ – A weak piece
     of evidence – Without any other corroborative evidence – Not
     sufficient to convict u/s.302 – Discussed. [Paras 20, 21]
     Criminal Trial – Suspicion, howsoever strong, cannot substitute
     the proof – Conviction is not permissible only on the basis
     of the suspicion – Discussed. [Para 24]

                            Case Law Cited
     Ramanand vs. State of Himachal Pradesh [1981] 2 SCR 444 :
     (1981) 1 SCC 511; Sharad Birdhichand Sarda v. State of
     Maharashtra [1985] 1 SCR 88 : (1984) 4 SCC 116; Kanhaiya
     Lal v. State of Rajasthan [2014] 3 SCR 744 : (2014) 4 SCC 715;
     Rambraksh @ Jalim v. State of Chhattisgarh [2016] 2 SCR 599 :
     (2016) 12 SCC 251; Sujit Biswas v. State of Assam [2013] 3 SCR
     830 : AIR 2013 SC 3817 – referred to.

                              List of Acts
     Penal Code, 1860; Code of Criminal Procedure, 1973.
                           List of Keywords
     Last seen theory; Circumstantial evidence; Murder; Motive;
     Recovery of weapon.
                          Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2748 of 2025
     From the Judgment and Order dated 15.04.2024 of the High Court
     of Orissa at Cuttack in CRLA No. 358 of 2019

                        Appearances for Parties
     Advs. for the Appellant:
     Shyam Manohar, Ms. Manju Jetley.
     Advs. for the Respondent:
     Shovan Mishra, Bipasa Tripathy.
1118                                                          [2025] 5 S.C.R.

                           Supreme Court Reports


                   Judgment / Order of the Supreme Court

                                   Judgment

        Prashant Kumar Mishra, J.

        Leave granted.
2.      This appeal by special leave is directed against the impugned
        judgment and order dated 15.04.2024 passed by the High Court of
        Orissa at Cuttack in Criminal Appeal No. 358 of 2019, whereby the
        High Court has affirmed the conviction and sentence imposed by
        the Trial Court convicting the appellant for committing the offences
        under Sections 302 and 201 of Indian Penal Code, 18601 and
        sentenced him to undergo imprisonment for life and to pay a fine
        of Rs 10,000/- and imprisonment for two years and to pay a fine of
        Rs. 5,000/- respectively for each of the offence.

        THE PROSECUTION CASE:
3.      The prosecution case, in brief, is that at about 11 a.m. on 04.04.2016,
        informant’s son Akash Garadia2 along with Budhadeba Garadia(PW-1)
        and Susanta Kusulia(PW-2) and the appellant/accused had been to
        the river nearby the village to take bath. From there, the appellant/
        accused and the deceased went to cashew field for collecting the
        cashew. The appellant/accused and the deceased did not return for
        long time, however, PW-1 and PW-2 returned to the village. The
        informant/Kalia Garadia(PW-3) inquired about the whereabouts of
        his son from PW-1 and PW-2 who informed him that they asked
        the appellant/accused about the deceased to which he replied that
        the deceased will never return and if they disclose this fact to the
        co-villagers, he will kill them. Thereafter, PW-3 inquired from the
        appellant/accused about his son but he expressed his ignorance
        and told that he had not seen the deceased. Then PW-3 along with
        his co-villagers went to the riverside in search of the deceased but
        they could not find him. On the next day, i.e. 05.04.2016, about
        06.00 a.m. again PW-3 went to the riverside in search of his son and
        found his dead body floating in the river. PW-3 lodged FIR (Exhibit-1)


1    ‘IPC’
2    ‘deceased’
[2025] 5 S.C.R.                                                         1119

                     Padman Bibhar v. State of Odisha


      alleging that the appellant/accused has killed his son and threw his
      dead body in the river.

      CHARGES AND EVIDENCE:
4.    On the basis of the above information, IIC of Muniguda Police Sation
      registered P.S. Case No. 37 of 2016 under Sections 302 and 201 IPC
      and directed the Investigating Officer-Lakshman Majhi3 to take up
      the investigation which was duly completed and a chargesheet was
      filed against the appellant/accused of offences under Sections 302
      and 201 IPC. The charges were framed and the appellant/accused
      pleaded not guilty and claimed false implication. The prosecution, in
      order to bring home the charges examined 19 prosecution witnesses
      and proved 10 documents and marked one M.O (blood stained stone).
5.    Out of 19 prosecution witnesses examined before the Trial Court,
      PW-1, PW-2 are independent witnesses who accompanied the
      deceased to river for taking bath; PW-3 is the informant and father
      of the deceased; PWs-4,6,7,8,12 & 13 are co-villagers; PW-5 is the
      scribe; PWs-9,10 & 11 are relatives; PW-14 is the wife of the appellant/
      accused and cousin sister of the deceased; PW-15 is the daughter
      of the informant; PW-16 is the wife of the informant and mother of
      the deceased; PW-17 is the doctor, who conducted autopsy; PW-18
      is the police constable and PW-19 is the I.O. The appellant did not
      examine any witness. In his examination under Section 313 Cr.P.C,
      he took plea that a false case had been foisted against him.
6.    On the basis of evidence adduced by the prosecution, the Trial Court
      held the appellant/accused guilty for both the charges and convicted
      and sentenced him as stated supra and the same has been affirmed
      by the High Court.
7.    The Trial Court found that the evidence on ‘last seen together’ and
      recovery of weapon together with motive are the circumstances which
      complete the chain of circumstantial evidence and are sufficient to
      hold the appellant/accused guilty for commission of murder and
      causing disappearance of evidence. The conviction and sentence
      imposed by the Trial Court has been affirmed by the High Court
      under the impugned judgment.



3    ‘PW-19’
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      SUBMISSIONS:
8.    Mr. Shyam Manohar, learned counsel appearing for the appellant/
      accused would submit that there is no direct evidence against
      the appellant/accused and the chain of circumstantial evidence is
      incomplete, not connecting him to the crime, therefore, he has wrongly
      been convicted. He would submit that all the relevant circumstances
      have not been put to the appellant/accused in his examination
      under Section 313 Cr.P.C. It is also stated that there is a delay of
      20 hours in lodging the FIR and the evidence of Chemical Examiner
      is inconclusive. It is also pointed out that there is discrepancy/
      contradiction about the place where the dead body was recovered
      inasmuch as at one place it is said to be recovered from a bathing
      place whereas at a different stage I.O has stated that the dead body
      was found at the cashew jungle. It is also argued that there is no
      motive for commission of crime.
9.    Per contra, Mr. Shovan Mishra, learned counsel for the State
      submitted that the Trial Court and the High Court as well, after
      careful examination of the evidence, rightly came to the conclusion
      that the evidence of ‘last seen together’ has been duly proved which
      along with other incriminating circumstances is sufficient to convict
      the appellant/accused.

      ANALYSIS:
10. It is settled law that in a case based on circumstantial evidence, the
    prosecution is obliged to prove each circumstance, taken cumulatively
    to form a chain so complete that there is no escape from the
    conclusion that within all human probabilities, crime was committed
    by the accused and none else. Further, the facts so proved should
    unerringly point towards the guilt of the accused.
11. This Court in Ramanand vs. State of Himachal Pradesh4 has held
    that ‘perfect proof is seldom to be had in this imperfect world and
    absolute certainty is a myth’.
12. This Court in a celebrated judgment in Sharad Birdhichand Sarda
    vs. State of Maharashtra5 has set down the golden rules in the


4    (1981) 1 SCC 511
5    (1984) 4 SCC 116
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                    Padman Bibhar v. State of Odisha


     cases basing circumstantial evidence which is to be proved by the
     prosecution.
     (i.)   That chain of evidence is complete;
     (ii)   Circumstances relied upon by prosecution should be
            conclusive in nature;
     (iii) Fact established should be consistent only with the
           hypothesis of the guilt of accused;
     (iv) Circumstances relied upon should only be consistent with
          the guilt of the accused;
     (v)    Circumstances relied upon should exclude every possible
            hypothesis except the one to be proved.
13. We shall now examine the evidence on record vis-a-vis ‘last seen
    theory’. PW-1 and PW-2 deposed in their testimony that they went
    together with the deceased to take bath and the appellant/accused
    joined subsequently and asked the deceased to join for collection
    of cashew nuts. When the deceased and the appellant/accused did
    not return, they came back. PW-1 stated that when they asked the
    appellant/accused regarding the deceased he kept quiet. PW-1 stated
    that when they went, no other villager was taking bath. PW-2 states
    that when he asked the appellant/accused about the deceased, he
    stated that the deceased returned before him and advised him not
    to inform anyone that they both had gone to eat cashew. PW-2 also
    stated that when they went, other villagers were also taking baths.
    PW-1 stated that initially he, PW-2 and the deceased proceeded to
    the river for bath and the appellant/accused came subsequently and
    that bathing ghat is a common bathing place for the villagers. It is
    reflected from his evidence that they went to take bath at around
    10/11 a.m. in the morning and returned in the evening. However, the
    appellant was not present in his house, and he had no discussion
    with the appellant in the evening. He says that he apprehended
    that it was the appellant who killed Akash. If we read the deposition
    of PW-2 carefully, he stated that he and PW-1 returned home after
    taking bath but the appellant did not come back and in the evening
    he asked the appellant about the whereabouts of the deceased to
    which he replied that the deceased came back before his return
    and advised him not to inform anyone that they both had gone to
    eat cashew. He also states that when inquiries were made from the
1122                                                     [2025] 5 S.C.R.

                        Supreme Court Reports


     appellant he kept quiet. He, PW-1 and the appellant were confined
     at a nearby place and after the dead body was found on the next
     morning they were taken to the police station. The police asked him
     and PW-1 to return back to home but detained the appellant. He
     says that the deceased and the appellant were not close friends but
     acquainted with each other. He was not aware of any disagreement
     between the deceased and the appellant. According to this witness,
     the appellant was not present near the bathing ghat by the time
     they arrived.
14. PW-3 is the father of the deceased and the informant. He says
    that when the appellant was confined, he did not admit for which
    he was handed over to the police. According to this witness, when
    the deceased did not return, he inquired from PW-1 and PW-2 who
    stated that they had gone to collect cashew nuts after the appellant/
    accused suggested that its price has gone upto Rs. 1540/- per kg.
    He inquired from the appellant/accused at around 03.00 p.m. and
    that during search in the evening all three i.e. the appellant, PW-1
    and PW-2 accompanied during such search.
15. From the above evidence of PW-1, PW-2 and PW-3 it emerges
    that when they were taking bath, other villagers were there on the
    bathing ghat, and that the appellant and the deceased had gone to
    collect the cashew nuts. However, when the appellant was inquired
    about the whereabouts of the deceased and he was confronted, he
    did not admit the guilt rather accompanied PW-3 in search of the
    deceased near the river and cashew jungle. This conduct of the
    appellant suggests that he did not run away from the village nor
    admitted his guilt as probably he had nothing to hide.
16. True it is that in the autopsy report, PW-17 found that the death
    is homicidal, due to fracture skull causing massive haemorrhage,
    but the issue is whether there is sufficient conclusive evidence to
    establish that the appellant has committed the murder.
17. PW-13 (Mahadev Sikaka) is also a witness of ‘last seen together’. He
    saw the appellant and deceased going towards village Madhapadar at
    around 12 noon and after some time he saw the appellant returning
    alone and then asked him about the deceased to which he did not
    reply and after asking for three to four times, he replied that he
    had gone nearby village for some work and thereafter the appellant
    hurriedly took his bath and went away. According to this witness,
[2025] 5 S.C.R.                                                        1123

                       Padman Bibhar v. State of Odisha


     the appellant’s wife (Sanju Bihar) is cousin of the deceased. After
     marriage, the appellant had gone to Kerala and did not return. When
     his wife fell ill and was taken to the hospital by her relatives, the
     appellant returned from Kerala and suspected his wife’s illicit relations
     with a co-villager and due to anger, he had killed Akash. However,
     in cross-examination, he admits that the police had not recorded
     his statement under Section 161 Cr.P.C. Therefore, this fact about
     motive is narrated by him for the first time in court hence the same
     cannot be relied upon. Interestingly, PW-3 father of the deceased
     has not stated anything about the motive in his examination-in-chief.
     According to PW-3, the appellant is his nephew being son of his
     brother-in-law. Thus, the appellant and PW-3 are close relative.
18. However, the crucial question is whether the evidence of last seen
    together is sufficient enough to convict the appellant. The stone
    allegedly used for committing murder was recovered near the dead
    body but the same is not in consequence of any memorandum
    statement of the appellant. As a matter of fact, the I.O has not
    recorded any memorandum statement of the appellant. In fact, it is
    the case of the prosecution that the appellant neither admitted the
    guilt nor got the weapon or dead body recovered at his instance.
    Even the chemical examination report is inconclusive although human
    blood was found on the shirt and on the stone, but the blood group
    was not matched.
19. The present is a case where except for the evidence of ‘last seen
    together’ there is no other incriminating material against the appellant.
20. This Court in Kanhaiya Lal vs. State of Rajasthan6 has held that
    evidence on ‘last seen together’ is a weak piece of evidence and
    conviction only on the basis of ‘last seen together’ without there
    being any other corroborative evidence against the accused, is not
    sufficient to convict the accused for an offence under Section 302
    IPC. The following passage from the judgment in paras 12 and 15
    can be profitably referred:
            “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


6   (2014) 4 SCC 715
1124                                                           [2025] 5 S.C.R.

                           Supreme Court Reports


            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 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”
21. Similarly, this Court in Rambraksh @ Jalim vs. State of
    Chhattisgarh7 has reiterated above legal position in the following
    words in paras 12 and 13:
            “12. It is trite law that a conviction cannot be recorded
            against the accused merely on the ground that the
            accused was last seen with the deceased. In other words,
            a conviction cannot be based on the only circumstance
            of last seen together. Normally, 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 person other than the accused being the
            perpetrator of the crime becomes impossible. To record
            a conviction, the last seen together itself would not be
            sufficient and the prosecution has to complete the chain
            of circumstances to bring home the guilt of the accused.
            13. In a similar fact situation this Court in Krishnan v. State
            of T.N. (2014) 12 SCC 279 held as follows: (SCC pp. 284-
            85, paras 21-24)
            “21. The conviction cannot be based only on circumstance
            of last seen together with the deceased. In Arjun Marik v.


7   (2016) 12 SCC 251
[2025] 5 S.C.R.                                                            1125

                    Padman Bibhar v. State of Odisha


           State of Bihar (1994) Supp (2) SCC 372 this Court held
           as follows: (SCC p. 385, para 31)
                ‘31. Thus the evidence that the appellant had
                gone to Sitaram in the evening of 19-7-1985 and
                had stayed in the night at the house of deceased
                Sitaram is very shaky and inconclusive. Even
                if it is accepted that they were there it would
                at best amount to be the evidence of the
                appellants having been seen last together with
                the deceased. But it is settled law that the only
                circumstance of last seen will not complete the
                chain of circumstances to record the finding that
                it is consistent only with the hypothesis of the
                guilt of the accused and, therefore, no conviction
                on that basis alone can be founded.’
           22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC
           45 held that: (SCC p. 63, para 31)
                ‘31. The 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 will be hazardous to come to a conclusion of guilt in cases
           where there is no other positive evidence to conclude that
           the accused and the deceased were last seen together.
           23. There is unexplained delay of six days in lodging the
           FIR. As per prosecution story the deceased Manikandan
           was last seen on 4-4-2004 at Vadakkumelur Village during
           Panguni Uthiram Festival at Mariyamman Temple. The
           body of the deceased was taken from the borewell by the
           fire service personnel after more than seven days. There
           is no other positive material on record to show that the
           deceased was last seen together with the accused and
           in the intervening period of seven days there was nobody
           in contact with the deceased.
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                          Supreme Court Reports


            24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438,
            this Court held that in the absence of any other links in
            the chain of circumstantial evidence, the appellant cannot
            be convicted solely on the basis of “last seen together”
            even if version of the prosecution witness in this regard
            is believed.”
22. In the case at hand also the only evidence against the appellant is
    of ‘last seen together’. The evidence of motive does not satisfy us
    to be an adverse circumstance against the appellant inasmuch as
    if the appellant has any doubt about his wife’s chastity, he would
    have caused injury or harm to his wife rather than to wife’s cousin
    with whom he had no animosity. Moreover, the so-called weapon
    of the offence i.e. the stone has not been recovered at his instance
    nor there is any memorandum statement of the appellant.
23. On the basis of above discussion, we are of the opinion that the
    nature of circumstantial evidence available against the appellant
    though raises doubt that he may have committed murder but the
    same is not so conclusive that he can be convicted only on the basis
    of evidence on ‘last seen together’.
24. It is held by this Court in Sujit Biswas vs. State of Assam8 suspicion,
    howsoever strong, cannot substitute the proof and conviction is not
    permissible only on the basis of the suspicion. It is held thus in para 6:
            “6. Suspicion, however grave it may be, cannot take the
            place of proof, and there is a large difference between
            something that “may be” proved, and something that “will be
            proved”. In a criminal trial, suspicion no matter how strong,
            cannot and must not be permitted to take place of proof.
            This is for the reason that the mental distance between
            “may be” and “must be” is quite large and divides vague
            conjectures from sure conclusions. In a criminal case,
            the court has a duty to ensure that mere conjectures or
            suspicion do not take the place of legal proof. The large
            distance between “may be” true and “must be” true, must
            be covered by way of clear, cogent and unimpeachable
            evidence produced by the prosecution, before an accused
            is condemned as a convict, and the basic and golden rule


8   AIR 2013 SC 3817
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                       Padman Bibhar v. State of Odisha


             must be applied. In such cases, while keeping in mind
             the distance between “may be” true and “must be” true,
             the court must maintain the vital distance between mere
             conjectures and sure conclusions to be arrived at, on
             the touchstone of dispassionate judicial scrutiny, based
             upon a complete and comprehensive appreciation of all
             features of the case, as well as the quality and credibility
             of the evidence brought on record. The court must ensure,
             that miscarriage of justice is avoided, and if the facts and
             circumstances of a case so demand, then the benefit of
             doubt must be given to the accused, keeping in mind that
             a reasonable doubt is not an imaginary, trivial or a merely
             probable doubt, but a fair doubt that is based upon reason
             and common sense. (Vide Hanumant Govind Nargundkar
             v. State of M.P.,(1952) 2 SCC 71, State v. Mahender Singh
             Dahiya (2011) 3 SCC 109 and Ramesh Harijan v. State
             of U.P. (2012) 5 SCC 777.”
25. In view of the above discussion, we set aside the impugned conviction
    and sentence imposed by the High Court and the Trial Court and
    acquit the appellant for the charges under Sections 302 and 201 IPC.
    The appellant be set at liberty, if he is not required in any other case.
     The appeal stands allowed.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan