Murder Case - Lost seen Theory - Dead body found in the Well of Accused - mere non explanation of Accused - does not lead to conviction in the absence of proof of Motive - and on the positive admition of Cordial relationship between Deceased and Accused - Lower court orders are set aside - Apex court acquitted the accused =
Kala did not return home in the night and in the morning
PW10 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 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.
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. =
The prosecution case is that the appellant/accused 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 be justified only when all the incriminating facts and
circumstances are found to be incompatible with the -
11. 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 and have to be shown to be closely connected with the
principal fact sought to be inferred from those
circumstances.
12. The prosecution in order to prove its case mainly relied on
the following circumstances :
i) The death of Kala was homicidal in nature; - proved
ii) Kala was last seen with accused Kanhaiya Lal when both of
them visited the house of PW4 Hurma on the
occurrence night. - proved
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. - not proved and other than hand admitted that the victim and accused are very cordial and close
Mere non-explanation on the part of
the appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the appellant.
19. The alleged illicit intimacy of the accused Kanhaiya Lal
with Kamli, wife of PW3 Kama, is said to be the cause for
the occurrence. According to PW3, his wife Kamli left him
four years back and is residing with her parents in Sanchiya
village. PW 10 Shantibai also in her testimony has confirmed
that Kamli 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 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 and accused Kanhaiya Lal. In -
20. 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 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.
21. 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 vs. State of Rajasthan (2010) 15 SCC 588.
23. 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 to be released from the custody forthwith unless
required otherwise.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41316
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 595 OF 2014
[Arising out of Special Leave Petition (Crl.) No.3634 of 2013]
Kanhaiya Lal … Appellant(s)
versus
State of Rajasthan … Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
Leave granted.
1. This appeal is preferred against the judgment of the High
Court of Judicature for Rajasthan at Jodhpur, in D.B. Crl.
Appeal No.515 of 2004.
2. The appellant herein Kanhaiya Lal, is accused No.2 in
Sessions Trial No.01 of 2004 on the file of Additional
District & Sessions Judge, Fast Track No.1, Dungarpur, -
3. and he was 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 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 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 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 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 did not return home in the night and in the morning
PW10 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 10 Shanti Bai and PW 11 Dhula went to the house of
the accused Kanhaiya Lal and he was not found there. PW10 -
5. 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. 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. Ex.P11 is the spot map. Ex.P13 is the
Panchayatnama. Ex.P14 is the seizure Memo of shoes, Muffler
and tobacco pouch.
6. PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal conducted the
post-mortem and found the following injuries:
“External injuries:
1. Abrasion 5 x 2 cm on the left side of the neck.
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.”
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.
Ex.P10 is the post-mortem report issued by them.
7. 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 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
above. The trial court found accused No.1 Ramam Lal not
guilty of the charge -
8. 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.
9. We heard the learned counsel appearing on behalf of the
appellant and the learned counsel appearing for the
respondent State.
10. The prosecution case is that the appellant/accused 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 be justified only when all the incriminating facts and
circumstances are found to be incompatible with the -
11. 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 and have to be shown to be closely connected with the
principal fact sought to be inferred from those
circumstances.
12. The prosecution in order to prove its case mainly relied on
the following circumstances :
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.
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.
13. The autopsy on the body of Kala was conducted by two doctors
and one of them namely Dr. Rajesh Sharma has been examined
as PW1. According to him two -
14. 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 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
suffered a homicidal death.
15. 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
support the prosecution case and was declared hostile. In
his examination-in-chief he has stated that on the
occurrence night he returned home at 8.00 pm and about 9.00
pm accused Kanhaiya Lal and -
16. 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 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 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.
17. 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 -
18. 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.
19. The alleged illicit intimacy of the accused Kanhaiya Lal
with Kamli, wife of PW3 Kama, is said to be the cause for
the occurrence. According to PW3, his wife Kamli left him
four years back and is residing with her parents in Sanchiya
village. PW 10 Shantibai also in her testimony has confirmed
that Kamli 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 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 and accused Kanhaiya Lal. In -
20. 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 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.
21. 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 -
22. 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.
23. 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 to be released from the custody forthwith unless
required otherwise.
…………………………….J.
(T.S. Thakur)
…………………………J.
(C. Nagappan)
New Delhi;
March 13, 2014
Kala did not return home in the night and in the morning
PW10 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 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.
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. =
The prosecution case is that the appellant/accused 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 be justified only when all the incriminating facts and
circumstances are found to be incompatible with the -
11. 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 and have to be shown to be closely connected with the
principal fact sought to be inferred from those
circumstances.
12. The prosecution in order to prove its case mainly relied on
the following circumstances :
i) The death of Kala was homicidal in nature; - proved
ii) Kala was last seen with accused Kanhaiya Lal when both of
them visited the house of PW4 Hurma on the
occurrence night. - proved
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. - not proved and other than hand admitted that the victim and accused are very cordial and close
Mere non-explanation on the part of
the appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the appellant.
19. The alleged illicit intimacy of the accused Kanhaiya Lal
with Kamli, wife of PW3 Kama, is said to be the cause for
the occurrence. According to PW3, his wife Kamli left him
four years back and is residing with her parents in Sanchiya
village. PW 10 Shantibai also in her testimony has confirmed
that Kamli 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 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 and accused Kanhaiya Lal. In -
20. 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 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.
21. 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 vs. State of Rajasthan (2010) 15 SCC 588.
23. 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 to be released from the custody forthwith unless
required otherwise.
T.S. THAKUR, C. NAGAPPAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 595 OF 2014
[Arising out of Special Leave Petition (Crl.) No.3634 of 2013]
Kanhaiya Lal … Appellant(s)
versus
State of Rajasthan … Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
Leave granted.
1. This appeal is preferred against the judgment of the High
Court of Judicature for Rajasthan at Jodhpur, in D.B. Crl.
Appeal No.515 of 2004.
2. The appellant herein Kanhaiya Lal, is accused No.2 in
Sessions Trial No.01 of 2004 on the file of Additional
District & Sessions Judge, Fast Track No.1, Dungarpur, -
3. and he was 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 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 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 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 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 did not return home in the night and in the morning
PW10 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 10 Shanti Bai and PW 11 Dhula went to the house of
the accused Kanhaiya Lal and he was not found there. PW10 -
5. 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. 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. Ex.P11 is the spot map. Ex.P13 is the
Panchayatnama. Ex.P14 is the seizure Memo of shoes, Muffler
and tobacco pouch.
6. PW1 Dr. Rajesh Sharma along with Dr. Kanti Lal conducted the
post-mortem and found the following injuries:
“External injuries:
1. Abrasion 5 x 2 cm on the left side of the neck.
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.”
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.
Ex.P10 is the post-mortem report issued by them.
7. 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 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
above. The trial court found accused No.1 Ramam Lal not
guilty of the charge -
8. 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.
9. We heard the learned counsel appearing on behalf of the
appellant and the learned counsel appearing for the
respondent State.
10. The prosecution case is that the appellant/accused 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 be justified only when all the incriminating facts and
circumstances are found to be incompatible with the -
11. 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 and have to be shown to be closely connected with the
principal fact sought to be inferred from those
circumstances.
12. The prosecution in order to prove its case mainly relied on
the following circumstances :
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.
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.
13. The autopsy on the body of Kala was conducted by two doctors
and one of them namely Dr. Rajesh Sharma has been examined
as PW1. According to him two -
14. 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 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
suffered a homicidal death.
15. 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
support the prosecution case and was declared hostile. In
his examination-in-chief he has stated that on the
occurrence night he returned home at 8.00 pm and about 9.00
pm accused Kanhaiya Lal and -
16. 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 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 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.
17. 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 -
18. 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.
19. The alleged illicit intimacy of the accused Kanhaiya Lal
with Kamli, wife of PW3 Kama, is said to be the cause for
the occurrence. According to PW3, his wife Kamli left him
four years back and is residing with her parents in Sanchiya
village. PW 10 Shantibai also in her testimony has confirmed
that Kamli 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 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 and accused Kanhaiya Lal. In -
20. 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 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.
21. 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 -
22. 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.
23. 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 to be released from the custody forthwith unless
required otherwise.
…………………………….J.
(T.S. Thakur)
…………………………J.
(C. Nagappan)
New Delhi;
March 13, 2014
