Holding

The conviction was unsustainable as the circumstantial evidence, including the last‑seen theory, failed to establish guilt beyond reasonable doubt, leading to the appellant's acquittal.

Summary

The appellant A2 was convicted under Section 302 IPC for the murder of Rajendran based largely on the testimony of witnesses who claimed to have seen the deceased with the accused on a Tuesday, without specifying the exact date. The trial court and the Madras High Court upheld the conviction despite the long gap between the alleged sighting and the discovery of the body, and the lack of any direct or corroborative evidence. On appeal, the Supreme Court examined the legal standards for conviction on circumstantial evidence, emphasizing the need for a complete, unbroken chain of facts that excludes all reasonable hypotheses of innocence. It held that the witnesses' statements were vague, untimely, and failed to satisfy the "last‑seen" theory, rendering the circumstantial case insufficient to prove guilt beyond reasonable doubt. Consequently, the Court set aside the conviction and acquitted the appellant, ordering the bail bonds to be discharged.

Issues considered

The conviction of the accused under Section 302 IPC can be sustained on the basis of the circumstantial evidence presented, particularly the "last‑seen" theory.
Whether the testimony of witnesses who only recalled seeing the accused and the deceased on a Tuesday, without a specific date, meets the legal requirements for circumstantial proof.
Whether the chain of circumstantial evidence is complete and excludes all reasonable hypotheses of the accused's innocence.

Legislation cited

Code of Criminal Procedure, 1973s. 174
Indian Penal Code, 1860s. 302

Subjects

circumstantial evidencelast‑seen theorymurderSection 302 IPCreasonable doubtacquittalburden of proof

Judgment

[2008] 8 S.C.R. 1060

A
)._ '
VENKATESAN
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 308 of 2001)
MAY 16, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
'1
Al.AM, JJ.]

Penal Code, 1860: s.302 - Conviction based on circum-
c stantial evidence - Last seen theory - On facts, held: Wit-
nesses did not speak of the date but only stated that they saw
dcecased with accused on Tuesday - No evidence to show
that accused and deceased were last seen together - Courts
· below not justified in ordering conviction - Evidence - Cir-
cumstantial evidence. i
D
Prosecution case was that the deceased had illicit •
relations with the wife of A-1 and had also tried to molest
wife of A-2. On 21.4.1988, when father of deceased, PW-2
returned to village, he found his son missing from the
E house. He questioned his other son PW-3, who then told
him that the deceased left in the company of A-2 and did
not return. PW-2 advised PW-3 to go and search for the
deceased. PW-3 searched for deceased but could not
trace him. On 22.4.1988, body of deceased was found
F lying in a field.
A chargesheet was filed against A-1 and A-2.. Trial
Court acquitted A-1 on the ground that evidence against
him was insufficient, however convicted A-2, guilty of of-
fence under s.302 IPC. High Court dismissed the appeal
·G by A-2. Hence the present appeal.
~
Allowing the appeal, the Court
HELD: 1.1. For a crime to be proved, it is not neces-
sary that the crime must be seen to have been committed ..
~

H 1060
VENKATESAN v. STATE OF 1061
TAMILNADU
and must, in all circumstances be proved by direct ocular A
~ evidence by examining before the Court those persons
who had seen its commission. The offence can be proved
by circumstantial evidence also. The principal fact or tac-
tum probandum may be proved indirectly by means of
certain inferences drawn from factum probans, that is, the B
evidentiary facts. To put it differently circumstantial evi-
dence is not direct to the point in issue but consists of
"' evidence of various other facts which are so closely as-
sociated with the fact in issue that taken together they
form a chain of circumstances from which the existence c
of the principal fact can be legally inferred or presumed.
[Para 2) [1065-G-H; 1066-B]
1.2. 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 D
..+ to bP. incompatible with the innocence of the accused or
the guilt of any other person. [Para 3) [1066-C]
Hukam Singh v. State of Rajasthan AIR (1977) SC 1063;
Eradu and Ors. v. State of Hyderabad AIR (1956) SC 316;
Earabhadrappa v. State of Karnataka AIR (1983) SC 446; E
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 Chatterjee v. State of M.P AIR (1989) SC 1890; Bhagat
Ram v. State of Punjab AIR (1954) SC 6; C. ChengaReddy
and Ors. v. State of A.P (1996) 10 SCC 19; Padala Veera F
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 Govind Nargundkar and Anr. v. State of Madhya
Pradesh, AIR (1952) SC 343; Sharad Birdhichand Sarda v.
State of Maharashtra AIR (1984) SC 1622 - relied on. G

~ "Wills' Circumstantial Evidence" (Chapter VI) - referred to.
1.3. 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 evi- H
1062 SUPREME COURT REPORTS [2008) 8 S.C.R.

A dence laid down by this Court as far back as in 1952. [Para
8] [1068-D]
2. PW 4 did not say that he had seen the appellant
and the deceased on any particular date. He had merely
stated that he.had seen them on a Tuesday. The trial court
8 and the High Court without anything further came to hold
that he meant 19.4.1988, because he stated that he saw
them on Tuesday. Similarly PW 9 has stated that he did -l
not know as to which of the accused i.e. whether A1 or A2
came with the deceased. Interestingly he stated that only
C after an enquiry by the inspector, he came to know the
name of the appellant. He has also stated that on a Tues-
day night he had seen him. He did not speak of any date.
He also admitted in cross-examination that he did not re-
member who came for taking drinks as several persons
D were coming for taking drinks. It was not explained as to
how he remembered at the time of his examination in +
Court which was after about 2 % years of the alleged date •
of occurrence to have seen accused and the deceased
together. So far as PW 8 is concerned he had identified
E A2 for the first time in Court. In his cross-examination he
accepted that he saw the appellant for the first time after
the day on which he had seen him. Before that he did not
see A2 and he did not give any identification mark of A2 to
police. He has further admitted ttiat after pointing out the
F appellant, the police enquired as to whether he had seen
the person. [Paras 11, 12] [1069-F-H, 1070-A-C]
State of UP v. Satish (2005) 3 SCC 114; Ramreddy
Rajesh Khanna Reddy v. State of A.P (2006) 10 SCC; Jaswant
Gir v State of Punjab (2005)12 sec 438 - relied on.
G
3. 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 be-
H
VENKATESAN v. STATE OF 1063
TAMIL NADU [DR. ARIJIT PASAYAT, J.]

comes impossible. It would be difficult in some cases to A
"· positively establish that the deceased was last 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 ac-
cused and the deceased were last seen together, it would B
be hazardous to come to a conclusion of guilt in those
¥ cases. [Para 13] [1070-D-G]
I
4. The trial court and the High Court were not justi-
tied in directing conviction of the appellant. He is acquit-
ted of the charges. [Para 16] [1071-G] c
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 308 of 2001
From the final Judgment and Order dated 3.7.2000 of the
High Court of Judicature at Madras in Criminal Appeal No. 741 D
-t
of 1990
K.V. Viswanathan, B. Raghunath, K. Venkataraman and
Vijay Kumar for the Appellant.
V. Kanagaraj, V.G. Pragasam, Joseph Aristotle and S. E
Prabhu Ramasubramanian for the Respondents.
The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Appellant, who was described
as A2 in Sessions Case No. 117 of 1990, had filed an appeal F
to challenge his conviction for offence punishable under Sec-
tion 302 of the Indian Penal Code, 1860 (in short the 'IPC') be-
fore the Madras High Court. Judgment dated 3. 7.2000 in Crimi-
nal Appeal No. 741 of 1990. The appeal was dismissed. Ap-
pell ant faced trial alongwith one Doraiswamy who has described
G
as A 1. It was alleged that both of them were responsible for
"'·~ murder of Rajendran (hereinafter referred to as the 'deceased')
on 19.4.1988 at about 10 PM. Trial court acquitted A1 while
holding appellant guilty of offence punishable under Section 302
IPC. Background facts 3s projected in a nutshell are as follows:
H
1064 SUPREME COURT REPORTS [2008] 8 S.C.R.

A PW.2 is the father and PW.3"is the younger brother of the )l
deceased Rajendran. They were residents ofValluvampakkam.
The accused were also residing in the same village. The de- '
ceased was having illicit relationship with the wife of A 1 and ~
PW.2 took his son to task and advised him not to have any rela-
B tionship with the wife of A1; It is also the case of the prosecu-
tion that the deceased tried to molest PW.5 the wife of A2. This
is said to be the motive for the occurrence.
'f
On 19.4.1988, PW.2 left Vallugampakkam for Madras to >-
see his daughter and when returned at 8.00 p.m. on21.4.1988
c to the house he found his son Rajendran missing from the house.
He questioned his other son PW.3 who then told him that the
deceased left in the company of A2 for Ranipet and did not
return. PW.2 thereafter advised PW.3 to go and search for the
deceased at Ranipet. Accordingly, PW.3 went to Ranipet and
D searched for the deceased, but could not trace him.
t·
...
'
Meanwhile, on 22.4.1988 at 7.0 a.m. PV./.1, the Village
Administrative Officer of Bagaveli, was informed by his menial
that a body is lying in a field. PW.1 went to the spot and found ,.
the body. Around the neck of the body, a torn lungi, M.0.5, was
E seen tied. PW.1 thereafter went to Kaveripakkam Police Sta-
tion where he gave a complaint to PW.14, the Sub-Inspector of
Police, at 11.45 a.m. and the same stands marked as Ex.P1 in
this case. PW.14 on the basis of Ex.P-1, registered a case in
Crime No.160of1988 under Section 174 Cr.P.C. Ex. P-14 is a ,...
F copy of printed First Information Report. P.W, 14 reached the I
lii
scene of occurrence where at 12.10 p.m. he prepared an ob- '1"
servation mahasar, Ex.P-2 in the presence of PW.1 and also
drew a rough sketch, Ex.P-15. the dead body was caused to
be photographed and M.0.4 series are the photographs. He
G also seized M.Os 1 to 3, a shirt, a lungi, and a banian respec-
tively, from the scene under a mahasar Ex. P-3. He has con-
•.
!~
verted the crime to one of suspicious death and sent copies of
express report, Ex. P-16, to the court and to the higher officials.
He conducted inquest between 12.30 p.m. and 2.30 p.m. over
H the dead body of Rajendran in the presence of Panchayatdars
VENKATESAN v. STATE OF 1065
TAMIL NADU [DR. ARIJIT PASAYAT, J.]

during which he examined and recorded the statements of PW.1 A
and others. Ex. P-17 is the inquest report. After the inquest,
PW.14 sent the dead body with his requisition through PW.12
for post-mortem.
On completion of investigation the charge sheet was filed,
case was committed to the court of Sessions for trial. Accused B
persons pleaded innocence. Undisputedly the case at hand is
a case of circumstantial evidence. While finding that the evi-
dence is inadequate to fasten the guilt on A 1, the trial court held
A2, the appellant herein guilty based on the evidence of PWs
3,4,8& 9 who claimed to have seen the deceased last in the C
company of the appellant. The conviction, as noted above, was
challenged before the High Court. By the impugned judgment
the appeal was dismissed.

In support of the appeal learned counsel for the appellant
. submitted that the evidence of PWs 3, 4, 8 & 9 should not have D
beem relied upon. It is pointed out that all these witnesses were
examined after considerable length of time. Further there was
considerable gap between the time the witnesses alleged to
have seen the accused appellant in the company of the deceased E
and the discovery of the dead body on 22.4.1988. The Doctor
PW 11 who examined the dead body found that the same was
in an extremely decomposed state. There was no reason for
PWs. 8 & 9 to remember that appellant was in the company of
the deceased on a particular day. PW 4 did not also speak of
the date but only said that he had seen the appellant and the F
deceased on a Tuesday. It is pointed out that in view of the
nature of the evidence adduced the trial court and the High Court
should not have convicted the appellant.
2. Before analyzing factual aspects it may be stated that G
for a crime to be proved it is not necessary that the crime must
be seen to have been committed and must, in all circumstances
be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence
can be proved by circumstantial evidence also. The principal H
:.~

...

1066 SUPREME COURT REPORTS [2008] 8 S.C.R
•
A fact or factum probandum may be proved indirectly by means )._
of certain inferences drawn from factum probans, that is, the
evidentiary facts. To put it differently circumstantial evidence is
not direct to the point in issue but consists of evidence of vari-
ous other facts which are so closely associated with the fact in
'~
8 issue that taken together they form a chain of circumstances
from which the existence of the principal fact can be legally in-
ferred or presumed.
I.
·'
~

3. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
c inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See
Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu
and Ors. v. State of Hyderabad (AIR 1956 SC 316);
D Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State
of UP \f. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder
....
..
I
Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar
Chatterjee v. State of MP (AIR 1989 SC 1890). The circum-
stances from which an inference as to the guilt of the accused
E is drawn have to be proved beyond reasonable doubt and have
I'
to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat Ram
v. State of Punjab (AIR 1954 SC 621), it was laid down that
where the case depends upon the conclusion drawn from cir- I'"
'r
F cumstances the cumulative effect of the circumstances must be F-
such as to negative the innocence of the accused and bring the
offences home beyond any reasonable doubt.
4. We may also make a reference to a decision of this
Court in C. Chenga Reddy and Ors. v. State of AP (1996) 10
G sec 193, wherein it has been observed thus:
.-.~
"In a case based on circumstantial evidence, the settled law
is that the circumstances from which the conclusion of guilt
is drawn should be fully proved and such circumstances must
be conclusive in nature. Moreover, all the circumstances
H
VENKATESAN v. STATE OF 1067
TAMIL NADU [DR. ARIJIT PASAYAT, J.]

should be complete and there should be no gap left in the A
chain of evidence. Further the proved circumstances must
be consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence .... ".
5. In Pada/a Veera Reddy v. State ofA.P and Ors. (AIR 1990
SC 79), it was laid down that when a case rests upon circumstan- B
tial evidence, such evidence must satisfy the following tests:
¥
!
"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established; c
(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
0
conclusion that within all human probability the crime
" was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the E
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence."
6. In State of UP v. Ashok Kumar Srivastava, (1992 Crl.LJ
1104), it was pointed out that great care must be taken in evalu- F
ating 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 estab- G
~ lished must be consistent only with the hypothesis of guilt.
7. Sir Alfred Wills in his admirable book "Wills' Circum-
stantial Evidence" (Chapter VI) lays down the following rules
specially to be observed in the case of circumstantial evidence: H

·t
1068 SUPREME COURT REPORTS [2008] 8 S.C.R.

A (1) the facts alleged as the basis of any legal inference must be
clearly proved ?ind be'yond reasonable doubt connected with
the factum probandum; (2) the burden of proof is always on the
party who asserts the existence of any fact, which infers legal
accountability; (3) in all cases, whether of direct or circumstan-
B tial evidence the best evidence must be adduced which the na-
ture of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the inno-
cence of the accused and incapable of explanation, upon any
other reasonable hypothesis than that of his guilt, (5) ifthere be
c any reasonable doubt of the guilt of the accused, he is entitled
as of right to be acquitted".
8. 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 circumsta.ntial evidence laid down by
D the this Court as far back as in 1952.
+
9. In Hanumant Govind Nargundkar and Anr. \/. State of ,.,
Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed
·thus:

E "It is well to remember that in cases where the evidence is
of a circumstantiaj .nature, the circumstances from which
the conclusion of guilt is to be drawn should be in the first
instan~e be fully established and all the facts so established
should.be consistent only with the hypothesis of the guilt of
F the accused. Again, the circumstances should be of a
conclusive nature and tendency and th'ey 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 notto leave any reasonable ground for
a conclusion consistent with the innocence of the accused
G
and it must be such as to show that within all human
prob'ability the act must have been done by the accused."
10. A reference may be. made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).
H Therein, while dealing with circumstantial evidence, it has been
VENKATESAN v. STATE OF 1069
TAMIL NADU [DR. ARIJIT PASAYAT, J.]

held that onus was on the prosecution to prove that the chain is A
complete and the infirmity of lacuna in prosecution cannot be cured
by false defence or plea. The conditions precedent in the words
of the this Court, before conviction could be based on circum-
stantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt 8
...- 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 c
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; D
,.
(4) they should exclude every possible hypothesis except
the one to be proved; and

(5) there must be a c,hain of evidence so compete as
not to leave any re~sonable ground for the conclusion E
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.

11. Coming to the factual scenario it is to be noted that as
rightly contented by learned counsel for the appellant, that PW F
4 did not say that he had seen the appellant and the deceased
on any particular date. He had merely stated that he had seen
them on a Tuesday. The trial court and the High Court without
anything further came to hold that he meant 19.4.1988, because
he stated that he saw them on Tuesday. Similarly PW 9 has G
stated that he did not know as to which of the accused i.e.
whether A 1 or A2 came with the deceased. Interestingly he
stated that only after an enquiry by the inspector, he came to
know the name of the appellant. He has also stated that on a
Tuesday night he had seen him. , He does not speak of ar/ly H
1070 SUPREME COURT REPORTS [2008] 8 S.C.R.

A date. He also admitted in cross examination that he does not .l"-
remember who comes for taking drinks as several persons were
coming for taking drinks. It was not explained as to how he
remembered at the time of his examination in Court which was
after about 2 % years of the alleged date of occurrence to have
B seen accused and the deceased together. So far as the PW 8
is concerned he had identified A2 for the first time in Court. In
his cross examination he accepted that he saw the appellant '1
for the first time after the day on which he had seen him. Before
that he did not see A2 and he did not give any identification
c mark of A2 to police.
12. He has further admitted that after pointing out the appel-
lant, the police enquired as to whether he had seen the person.
13. So far as the last seen aspect is concerned it is nec-
D essary to take note of two decisions of this court. In State of
U.P. v. Satish [2005(3) sec 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 the
deceased were seen last alive and when the deceased is
E 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 seen with the accused
when there is a long gap and possibility of other persons
F coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous
to come to a conclusion of guilt in those cases. In this
case there is positive evidence that the deceased and the
accused were seen together by witnesses PWs. 3 and 5,
G
in addition to the evidence of PW-2."
14. In Ramreddy Rajesh Khanna Reddy v. State of A.P
[2006(10 sec 172] it was noted as follows:
"27. The last-seen theory, furthermore, comes into play
H.
VENKATESAN v. STATE OF 1071
TAMIL NADU [DR. ARIJIT PASAYAT, J.]

~ where the time gap between the point of time when the A
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. Even in such a case the courts
should look for some corroboration. B
28. In State of UP v. Salish [ 2005(3)SCC 114] this Court
observed: (SCC p. 123, para 22)

"22. The last-seen theory comes into play where the time-
gap between the point of time when the accused and the c
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 seen with the accused
0
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous
to come to a conclusion of guilt in those cases. In this
case there is positive evidence that the deceased and the E
accused were seen together by witnesses PWs 3 and 5,
in addition to the evidence of PW 2."
(See also Bodhraj v. State of J&K (2002(8) SCC 45).)"
15. A similar view was also taken in Jaswant Gir v. State of F
Punjab [2005(12) sec 438].
16. Above being the position, the inevitable conclusion is
that the trial court and the High Court were not justified in direct-
ing conviction of the appellant. He is acquitted of the charges. G
The bail bonds executed pursuant to the order granting bail shall
stand discharged.
17. The appeal is allowed.
D.G. Appeal allowed.
H