CASE NO.: Appeal (crl.) 559-560 of 1999 PETITIONER: STATE OF RAJASTHAN RESPONDENT: KHUMA DATE OF JUDGMENT: 08/09/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT:
JUDGMENT
2004 Supp(4) SCR 219
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. : Heard learned counsel for the Appellant-State. There
is no appearance on behalf of the respondent-accused. Respondent faced
trial for alleged commission of offence punishable under” Section 302 of
the Indian Penal Code, 1860 (in short ‘I.P.C.’). Though found guilty by the
Trial Court, he was acquitted by the High Court.
We have gone through the judgments of the High Court and the Trial Court.
The Trial Court relied upon three circumstances to find the respondent
guilty. They were : (1) he was last seen with the deceased persons. (2) he
was found to be in possession of the ‘Kadiyas’ when he was arrested and (3)
the recovery of blood stained articles on being pointed out by him. The
accused was awarded death sentence. He filed one appeal from jail and one
through counsel. A reference was made by the Trial Court for confirmation
of the death sentence. The High Court analysed the evidence and found the
accused innocent and directed his acquittal.
Learned counsel for the appellant-State submitted that the circumstances
highlighted by the prosecution were sufficient for finding the accused
guilty. The Trial Court had rightly found the accused guilty but the High
Court reversed it by discarding the circumstances, as not sufficient for
the purpose of holding the accused guilty.
The law relating to circumstantial evidence has been laid down by this
Court in several cases. It has been laid down that the circumstances should
be of such conclusive nature as to exclude every other possibility except
the accused being guilty of the charged offence. Circumstances which
attracted notice of the High Court were that accused was last seen in the
company of the deceased. It was based on the evidence of P.Ws. 7, 8 and 30.
PW-7 was of very weak eye-sight and even, according to her own statement,
she could not identify a person even if he or she passes nearby. The
hypothetical “last seen theory” was pressed into service by the Trial Court
by observing that the accused and PW-7 being of the same village, she could
have identified him from his speech. No witness stated that the accused had
spoken even a word when he was allegedly seen near the deceased. PW-8 only
stated that she had seen the deceased and PW-7 together. He did not speak
about accused being present nearby. PW-30’s evidence is no better. That
being go, the last seen theory could not have been pressed into service.
The other circumstance was the alleged recovery of the incriminating
materials. The High Court found it absolutely improbable that the accused
who was allegedly absconding, would carry the incriminating materials and
go near the police and present himself so that he could be arrested with
the incriminating materials. Third circumstance was the recovery of blood
stained articles. This was also discarded by the High Court as the place of
occurrence was easily accessable and seized articles were not established
to be carrying human blood.
Above being the position, the tests required to convict a person based on
circumstantial evidence were not available in the present case. The
circumstances were not conclusive in nature. The facts established are not
consistent only with the hypothesis of guilty and in-consistent with the
innocence of guilty and it has no moral certainty to exclude the
possibility of guilt by any person other than the accused.
Above being the position, the High Court’s well reasoned judgment does not
warrant interference. The appeals are, accordingly, dismissed.