Page 1 1

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

Page 2 2

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

Page 3 3

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

Page 4 4

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

Page 5 5

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.”

Page 6 6

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

Page 7 7

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

Page 8 8

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;

Page 9 9

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

Page 10 10

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

Page 11 11

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

Page 12 12

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

Page 13 13

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

Page 14 14

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.

Page 15 15

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