Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 2008

Prakash .... Appellant(s)

Versus

State of Rajasthan .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 27 OF 2008

J U D G M E N T

P.Sathasivam,J.

1)These appeals are directed against the final judgment

and order dated 02.03.2006 passed by the High Court of

Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal

No. 154 of 2002, whereby the High Court dismissed the

appeal filed by the appellants herein and confirmed the

order dated 31.01.2002 passed by the Additional Sessions

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Page 2 Judge, Barmer, Rajasthan in Sessions Case No. 28 of 1998 by

which the appellants herein were convicted for the offence

punishable under Sections 302, 364 and 120-B of the Indian

Penal Code (in short “IPC”) and sentenced them to undergo

imprisonment for life under Section 302 and to pay a fine of

Rs.5000/- each.

2)Brief facts:

a)This is a case of kidnapping and murder of a 7 year old

child out of enmity.

b)On 16.04.1998, Leeladhar (PW-1) lodged a report at

Police Station, Barmer stating that on 15.04.1998 his son

Kamlesh aged about 7 years left for the school in the

morning but did not return home till evening at 7.00 p.m. In

pursuance of the said report, the police made a search. On

19.04.1998, on an information by Hansraj (PW-8), Khet Singh

(PW-9) and Bheemaram (PW-11) that a dead body of a boy

was found lying on the hill of Sujeshwar in mutilated

condition, the police along with one Leeladhar (PW-1) went

to the spot. They found that some parts of the dead body

were eaten by the animals. From the clothes, shoes, socks

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Page 3 and school bag, PW-1 identified the dead body as that of his

son.

c)On 19.04.1998, another report of kidnapping and

murder was lodged by Leeladhar (PW-1) suspecting the

involvement of Ramesh S/o Dashrath, Prakash s/o

Gautamchand, Ramesh @ Papiya S/o Bhanwar Lal, Pannu,

Inder S/o Murlidhar, Ganesh and Pappu. After the

investigation and recovery, the police arrested Prakash,

Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a

charge sheet under Sections 302, 364 and 120-B of IPC was

filed against the accused persons.

d)By order dated 31.01.2002 in Sessions Case No.28 of

1998, the Additional Sessions Judge, Barmer convicted all

the three accused persons for the offences punishable under

Sections 302, 364 and 120-B of IPC and sentenced them

under Section 302, to undergo life imprisonment with a fine

of Rs.5000/- each, in default of payment of fine, further to

undergo rigorous imprisonment for one year, under Section

364, RI for 7 years with a fine of Rs.2000 each, in default of

payment of fine, further to undergo RI for 6 months and

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Page 4 under Section 120-B to undergo 7 years RI with a fine of

Rs.2000 each, in default of payment of fine, further to

undergo 6 months RI.

e)Challenging the order of conviction and sentence, the

appellants filed appeal being D.B. Criminal Appeal No. 154 of

2002 before the High Court. By order dated 02.03.2006, the

High Court dismissed the appeal filed by the appellants

herein.

f)Aggrieved by the said order, the appellants have

preferred these appeals by way of special leave.

3)Heard Mr. Seeraj Bagga, learned Amicus Curiae for the

appellants and Mr. Shovan Mishra, learned counsel for the

respondent-State.

Discussion:

4)In the case on hand, the prosecution case rests solely

on the basis of circumstantial evidence. It was contended by

the learned amicus curiae for the appellants that in the

absence of direct evidence, the slightest of a discrepancy,

depicting the possibility of two views would exculpate the

accused of guilt, on the basis of benefit of doubt. Before

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Page 5 considering the materials placed by the prosecution and the

defence, let us analyse the legal position as declared by this

Court on the standard of proof required for recording a

conviction on the basis of circumstantial evidence. In a

leading decision of this Court in Sharad Birdhichand

Sarda vs. State of Maharashtra , (1984) 4 SCC 116, this

Court elaborately considered the standard of proof required

for recording a conviction on the basis of circumstantial

evidence and laid down the golden principles of standard of

proof required in a case sought to be established on the

basis of circumstantial evidence which are as follows:

“153. A close analysis of this decision would show

that the following conditions must be fulfilled before a

case against an accused can be said to be fully

established:

(1) the circumstances from which the conclusion of

guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that

the circumstances concerned “must or should” and

not “may be” established. There is not only a

grammatical but a legal distinction between “may be

proved” and “must be or should be proved” as was

held by this Court in Shivaji Sahabrao Bobade v. State

of Maharashtra,(1973) 2 SCC 793 where the

observations were made: [SCC para 19, p. 807):

“Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court

can convict and the mental distance between ‘may be’

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Page 6 and ‘must be’ is long and divides vague conjectures

from sure conclusions.”

(2) the facts so established should be consistent

only 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,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete

as not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human probability

the act must have been done by the accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based

on circumstantial evidence.”

5)Though learned counsel for the appellants referred

other decisions, since the above principles have been

followed in the subsequent decisions, we feel that there is no

need to deal with the same elaborately. With the above

“five golden principles”, let us consider the case of the

prosecution and find out whether it satisfies all the tests.

6)The relevant and material circumstances heavily relied

on by the prosecution are:

(i)The deceased was last seen in the company of the

appellants-accused.

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Page 7 (ii)Recovery of incriminating articles in pursuance of the

information given by the appellants.

(iii)Motive.

7)Learned amicus curiae for the appellants as well as

learned counsel for the respondent-State took us through

the entire evidence, both oral and documentary. We

scrutinized the same and also considered the respective

submissions made by them. Before proceeding further, it is

relevant to note that among these three accused, A-1 has

not challenged his conviction and sentence. The present

appeals are filed by A-2 and A-3, wherein we refer the

appellants which relates to A-2 and A-3 alone.

8)The first witness examined by the prosecution was

Leeladhar (PW-1) – father of the deceased. In his deposition,

PW-1 deposed that he is residing at Hathidhora, near Shiv

Temple, Barmer. He had two sons and one daughter. His

one son died prior to the incident. His eldest son was

Kamlesh, thereafter his daughter Khushbu and then

youngest son Narendra. He is doing the work of light fitting.

He usually goes to work at 8.30-9.00 in the morning and

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Page 8 returns back home at 8.00-8.30 in the night. Amongst his

three children, Kamlesh used to go to School. He studied in

Alesh Narayan Khatri School. On 15.04.1998, his son had

gone to school at 11.30 a.m. At that time, son of Peetamber

accompanied him. He further narrated that at 5.45 p.m.,

when he was working at the place of Cobblers, he received

the news that his son Kamlesh has not come back from the

school. On receipt of the said information, he went home

where his wife informed that Kamlesh has not come back

from the school. Thereafter, he went to the school and

enquired from the school teacher, who told that Kamlesh had

not come to school on that day. Thereafter, he enquired

from all his relatives at Barmer and searched for him but

could not locate him. Then he lodged a complaint with City

Police Station stating that his child is not traceable. Five

days thereafter at about 7 p.m. the police informed him that

they found a dead body. Thereafter, he along with Premji

Ghanshyamji went up to the hills. There is a mountain

behind the Shivji temple. He was taken up to that mountain

and Premji, Ghanshyamji and Moola had gone to the

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Page 9 mountain top where the dead body was lying. On seeing the

dead body, all the three came to C.I. Sahib and told that it

was the dead body of his son Kamlesh. During night, it was

not possible to lift the dead body, therefore, next morning he

again went to that place and collected the dead body of his

son tied in a cloth and brought the same to his home and

buried it. He also stated that the right hand of the dead

body was cut and the same was missing. The head of the

dead body was also missing. There was a white shirt with

black spots, black pant, black belt and black shoes put on

the dead body. There was also a school bag with the dead

body, which was of his son Kamlesh. The clothes worn on by

the dead body was also of his son.

9)He further narrated that on the second day after

missing of his son, suspicion rose on Pappu who had gone to

Delhi. He further explained that three months prior to the

incident, Ramesh Khatri had entered into the house of

Indramal Brahmin, whose house is adjacent to his house. In

this regard he made a complaint to the parents of the girl as

well as to the persons of the locality. The girl was of

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Page 10 Indramal. Then Ramesh put the poison packet in the house

of Indramal over the wall. Later on, the daughter of

Indramal died by consuming that poison. Thereafter,

Ramesh Khatri and Indramal Brahmin used to threaten him

that they would take revenge of it and would abduct his son

at the time of going to school. Three months after the said

threat, they committed the murder of his son after abducting

him when he was on the way to school. C.I. Sahib of police

had taken away the clothes in his presence and also

collected pant with black belt, a small blood smeared shit

with black spot design, two shoes and socks etc. He lodged

a report (Ex.P-01) with police station on the same day

stating that his child did not come back home from school.

He also informed the police that the dead body of his son

was found five days after his missing. After conducting

inquest, the police handed over the dead body of his son.

10)The next witness relied on by the prosecution is PW-7,

mother of the deceased. In her evidence, she deposed that

she had three children. The name of the third child was

Kamlesh. She narrated that about 14 months ago, she had

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Page 11 sent Kamlesh to school. On the relevant date, when she was

standing outside her house, the accused persons, namely,

Pappu, Ramesh and Prakash present in the court were

standing at the shop of Pappu. Amongst them, Pappu went

to his house and brought scooter and went on the scooter in

the same direction in which Kamlesh and Santosh had gone.

Thereafter, she went inside her home. At the relevant time,

her husband was doing the work of light fitting and he used

to go to work spot at 9 ‘O Clock in the morning return home

at 8 ‘O Clock in the evening. On the relevant date, when he

returned home, she informed him that their son Kamlesh had

not come back from the school. Thereafter, her husband

PW-1 went in search of Kamlesh along with her brother

Prem. She also narrated the incident about Ramesh that 12

months prior from the date of her missing of her son, at 11 O

clock, she had seen the accused Ramesh entering the house

of Indrammal which is close to her house. Ramesh had

relationship with the daughter of Indrammal, namely,

Pappuni. The said Ramesh used to enter their house even

during night. She informed the same to Indrammal’s wife.

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Page 12 She also disclosed this fact to other neighbours. According

to her, on coming to know of the said incident, Indrammal

and his sister beat her for which she had lodged a complaint

with the police due to which they threatened that they would

take revenge of it. One month after the said incident,

Pappuni died by consuming poison and, thereafter, the

accused Ramesh used to quarrel with her and many times

threatened her. She also reported the matter to the police.

With the assistance of the local people, the matter was

compromised with him. However, she complained that after

compromise, her son Kamlesh was missing and subsequently

murdered. She narrated the motive for killing of her son by

the accused persons. She also asserted that Pappu, Ramesh

and Prakash had made her son disappear and according to

her, they did it on account of the death of Pappuni and

thereafter, murdered her son.

11)Apart from the evidence of PWs 1 and 7 with regard to

the last seen theory, prosecution examined three persons,

namely, Moolchand (PW-3), Gautam Chand (PW-4) both are

goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has

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Page 13 stated that he was known to Leeladhar, Ramesh and

Prakash. He further stated that on the date of the incident,

in the afternoon at about 12 he had seen all the accused

persons moving towards Panchpati Circle Road on a scooter.

He had also seen the son of Leeladhar sitting in between the

three accused persons on the scooter. Gautam Chand (PW-

4), who is also a goldsmith, in his evidence has stated that

on the date of the incident at about 12.15 he had seen the

accused moving in a scooter along with the small boy.

Though both PWs 3 and 4 did not identify the accused

persons in the identification parade, in view of their

assertion, we are satisfied that the prosecution has

succeeded in establishing the circumstance of last seen

theory.

12)The next witness relied on by the prosecution to

support the last seen theory is Bijlaram (PW-10). In his

evidence, he stated that on 15.04.1998, he had gone to

Sujesar Hillock for collecting firewood. While he was

returning on Gelu Road, he saw the accused along with a

boy moving towards the Hillock. The boy was wearing black

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Page 14 pant and white shirt and black shoes. He further narrated

that all the three accused and the child moved towards the

Hillock. He identified all the accused in the Court. He also

admitted that he was known to all the three accused persons

and the child. He was cross-examined at length but nothing

was elicited disproving his statement relied on by the

prosecution. The prosecution very much relied on by PWs 3,

4 and 10 to prove the last seen theory and the courts below

rightly accepted their version.

13)The analysis of the above evidence discussed so far

clearly show that the prosecution has succeeded in

establishing that the relations betweens the family of

Leeladhar and the appellants-accused were hostile. In fact,

Ramesh Khatri, one of the accused had threatened

Leeladhar and his wife of finishing their family. We are

satisfied that the prosecution has proved motive on the part

of the appellants for committing the murder of Kamlesh, son

of PWs 1 and 7.

14)It is true that counsel appearing for the appellant

pointed out the discrepancy in the evidence of PWs 11, 12,

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Page 15 16 and 21 about the condition of the dead body. It is

relevant to point out that these prosecution witnesses are

villagers and further the body was recovered only on

20.04.1998 whereas the incident occurred on 15.04.1998. In

fact, PWs 9 and 11 cattle grazers have deposed that the

dead body was partly eaten by dog. In view of the same,

merely because the prosecution witnesses were not

consistent in describing the dead body of 14 year old boy,

the entire prosecution case cannot be disbelieved.

15)In the course of investigation and in pursuance of the

information given by A-1, pant and shirt stained with blood

of Ramesh were recovered from his house in the presence of

PWs 21 and 23. The pant and shirt were seized and sealed

in a packet marked as S-8. It is further seen that as per FSL

report, Exh.P-86, the presence of blood on the pant and shirt

are of human origin.

16)In the light of the above discussion, we hold that the

prosecution has established all the circumstances by cogent

and acceptable evidence and if we consider all the

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Page 16 circumstances it leads to a conclusion that it was the

appellants/accused who kidnapped and committed the

murder of the deceased Kamlesh. We are satisfied that the

trial Court has rightly accepted the prosecution case and

awarded life sentence which was affirmed by the High Court.

We fully concur with the said conclusion. Consequently, the

appeals fail and the same are dismissed.

………… .…………………………J.

(P. SATHASIVAM)

………….…………………………J.

(JAGDISH SINGH KHEHAR)

NEW DELHI;

MARCH 22, 2013.

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