Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.928 OF 2009

Rishipal …Appellant

Versus

State of Uttarakhand …Respondent

J U D G M E N T

T.S. THAKUR, J.

1.This appeal arises out of a judgment and order dated

27

th

August, 2008 passed by the High Court of Uttarakhand

at Nainital whereby Criminal Appeal No.298 of 2001 filed by

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Page 2 the appellant has been partly allowed. The High Court has

while setting aside the conviction and sentence awarded to

the appellant under Section 302 IPC upheld his conviction

for offences punishable under Sections 171, 201 and 420

IPC and the sentence awarded by the trial Court for these

offences. The High Court has further convicted the appellant

for an offence punishable under Section 365 IPC and

sentenced him to undergo rigorous imprisonment for a

period of seven years on that count.

2.The facts giving rise to the arrest and eventual

conviction of the appellant have been set out by the High

Court at length. We need not, therefore, recapitulate the

same over again except to the extent it is absolutely

necessary to do so for the disposal of this appeal. Suffice it

to say that the appellant according to the prosecution

dishonestly induced the complainant Dr. Mohd. Alam (P.W.2)

at Dehradun to deliver his car bearing registration No.URM

2348 and a sum of Rs.15,000/- and at about 1.30 p.m. on

the same day abducted Abdul Mabood, brother of the

complainant with the intention to commit his murder. The

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Page 3 prosecution case further is that sometime between 1.7.1987

and 2.7.1987, Abdul Mabood was murdered near a canal on

Kairana Panipat Road in District Panipat and with a view to

cause disappearance of any signs of the crime committed by

him threw the dead body of Abdul Mabood in the Canal. A

report for the alleged commission of offences under Sections

406, 419, 420 and 365 IPC was lodged by Dr. Mohd. Alam

on 6.7.1987 at Police Station Dalanwala based on which

Crime No.185/1987 was registered and the investigation

undertaken by Muzaffar Ali - Sub-Inspector, examined as

PW17 at the trial. In the course of investigation the said

witness took the appellant into custody, recovered the car

bearing Registration No.U.R.M.2348 from Panipat and

effected seizure of some letters allegedly written by him.

Further investigation of the case was then handed over to

Mr. J.P. Sharma (P.W.18) who completed the same and

submitted a charge sheet against the appellant for offences

punishable under Sections 364, 302, 201, 420, 170 and 171

I.P.C.

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Page 4 3.The appellant was in due course committed to the

Court of Sessions to face trial before the III Additional

Sessions Judge, Dehradun who framed charges against the

appellant to which the appellant pleaded not guilty and

claimed to be tried.

4.At the trial Court the prosecution examined P.W. 1

Raees Ahmad, P.W.2 Dr. Mohd. Alam, also complainant in

the case; P.W.3 Hari Om, P.W.4 Jiledar Singh, P.W.5 Hizfur

Rahman the brother of Abdul Mabood-deceased; P.W.6

Anees Ahmad, P.W.7 Akash Garg, P.W.8 Badloo Ram, P.W.9

Jai Bhagwan, P.W.10 Ajit Chopra, and nine other witnesses

including P.W.17 Muzaffar Ali and P.W.18 J. P. Sharma who

concluded the investigation and P.W.19 Ramanand Pandey,

another Scientific Officer of Forensic Laboratory, Agra. The

appellant examined D.W.1 Yashveer Singh, his brother and

D.W.2 Constable Om Prakash, in his defence.

5.Appreciation of evidence thus assembled at the trial led

the trial Court to the conclusion that the appellant had

committed offences punishable under the provisions with

which he stood charged and accordingly sentenced him to

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Page 5 life imprisonment for the offence of murder besides a fine of

Rs.3,000/-. For the remaining offence he was sentenced to

undergo rigorous imprisonment ranging between two

months to five years with the direction that all the sentences

shall run concurrently.

6.Aggrieved by the judgment and order passed by the

trial Court the appellant preferred an appeal to the High

Court of Allahabad from where the same was transferred to

the High Court of Uttarakhand at Nainital in terms of Section

35 of the U.P. Re-organisation Act, 2000. The transferee

High Court allowed the appeal but only in part and to the

extent that the appellant was acquitted of the charge of

murder while his conviction for offences under Sections 171,

201 and 420 was maintained. The High Court also altered

the conviction from Section 364 IPC to Section 365 IPC and

sentenced him to undergo rigorous imprisonment for a

period of seven years on that count. The present appeal

assails the correctness of the said order of the High Court.

7.When this appeal came up for hearing before S.B.

Sinha and Cyriac Joseph, JJ. on 24

th

October, 2008, this

5

Page 6 Court not only issued notice to the State in the appeal but

also directed notice to the appellant to show cause why the

order passed by the High Court acquitting the appellant

under Section 302 may not be set aside. At this stage the

appellant made a prayer for withdrawal of the SLP filed by

him against his conviction which prayer was declined by this

Court by order dated 5

th

January, 2009 on the ground that

the Court had issued a show cause notice for reversal of the

appellant’s acquittal under Section 302 IPC.

8.We have heard learned counsel for the parties at some

length who have taken us through the evidence on record.

The only question that was argued before us with some

amount of seriousness on both sides was whether the High

Court was justified in acquitting the appellant of the charge

of murder held proved against him by the trial Court. There

was no attempt made by the counsel for the appellant to

question the correctness of the findings recorded by the trial

Court in so far as the commission of offences punishable

under other provisions of the IPC were concerned. As seen

above, the appellant had sought withdrawal of the SLP which

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Page 7 implied that he did not question the correctness of the

sentence recorded by the High Court in so far as other

offences were concerned. That prayer was rejected which

effectively kept the SLP alive, but no serious attempt was

made to pursue the challenge against the order passed by

the High Court in so far as the conviction recorded by the

said Court under other offences was concerned. We are not

in that view of the matter called upon to examine the

correctness of the conviction of the appellant for other

offences. Even otherwise the findings recorded by the trial

Court and affirmed by the High Court are in our opinion

supported by evidence in so far as commission of other

offences are concerned. There is no miscarriage of justice in

the appreciation of the evidence or recording of those

finding to call for our interference.

9.Coming next to the question whether the prosecution

has brought home the charge of murder levelled against the

appellant, we must at the outset point out that the case is

entirely based on circumstantial evidence. No direct

evidence has been adduced to prove that Abdul Mabood,

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Page 8 whose corpus delicti has not been recovered, was done to

death, nor any evidence adduced to show where and when

the same was disposed of by the appellant assuming that he

had committed the crime alleged against him. The legal

position regarding production of corpus delicti is well settled

by a long line of decisions of this Court. We may briefly

refer to some of those cases. In Rama Nand and Ors. v.

State of Himachal Pradesh (1981) 1 SCC 511, this Court

summed up the legal position on the subject as:

“....…….In other words, we would take it that the

corpus delicti, i.e., the dead-body of the victim was

not found in this case. But even on that assumption,

the question remains whether the other

circumstances established on record were sufficient

to lead to the conclusion that within all human

probability, she had been murdered by Rama Nand

appellant? It is true that one of the essential

ingredients of the offence of culpable homicide

required to be proved by the prosecution is that the

accused caused the death" of the person alleged to

have been killed.

28.This means that before seeking to prove that

the accused is the perpetrator of the murder, it must

be established that homicidal death has been

caused. Ordinarily, the recovery of the dead-body of

the victim or a vital part of it, bearing marks of

violence, is sufficient proof of homicidal death of the

victim. There was a time when under the old English

Law, the finding of the body of the deceased was

held to be essential before a person was convicted of

committing his culpable homicide. "I would never

convict", said Sir Mathew Hale, "a person of murder

or manslaughter unless the fact were proved to be

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Page 9 done, or at least the body was found dead". This was

merely a rule of caution, and not of law. But in those

times when execution was the only punishment for

murder, the need for adhering to this cautionary rule

was greater. Discovery of the dead-body of the

victim bearing physical evidence of violence, has

never been considered as the only mode of proving

the corpus delicti in murder. Indeed, very many

cases are of such a nature where the discovery of

the dead-body is impossible. A blind adherence to

this old "body" doctrine would open the door wide

open for many a heinous murderer to escape with

impunity simply because they were cunning and

clever enough to destroy the body of their victim. In

the context of our law, Sir Hale's enunciation has to

be interpreted no more than emphasising that where

the dead-body of the victim in a murder case is not

found, other cogent and satisfactory proof of the

homicidal death of the victim must be adduced by

the prosecution. Such proof may be by the direct

ocular account of an eye-witness, or by

circumstantial evidence, or by both. But where the

fact of corpus delicti, i.e. 'homicidal death' is sought

to be established by circumstantial evidence alone,

the circumstances must be of a clinching and

definitive character unerringly leading to the

inference that the victim concerned has met a

homicidal death. Even so, this principle of caution

cannot be pushed too far as requiring absolute proof.

Perfect proof is seldom to be had in this imperfect

world, and absolute certainty is a myth. That is why

under Section 3, Evidence Act, a fact is said to be

"proved", if the Court considering the matters before

it, considers its existence so probable that a prudent

man ought, under the circumstances of the

particular case, to act upon the supposition that it

exists. The corpus delicti or the fact of homicidal

death, therefore, can be proved by telling and

inculpating circumstances which definitely lead to

the conclusion that within all human probability, the

victim has been murdered by the accused

concerned….”

(emphasis supplied)

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Page 10 10.To the same effect is the decision in Ram Chandra &

Ram Bharosey v. State of Uttar Pradesh AIR 1957 SC

381, where this Court said:

“It is true that in law a conviction for an offence does

not necessarily depend upon the corpus delicti being

found. There may be reliable evidence, direct or

circumstantial, of the commission of the murder

though the corpus delicti are not traceable.”

11.Reference may also be made to State of Karnataka v.

M.V. Mahesh (2003) 3 SCC 353 where this Court

observed:

“It is no doubt true that even in the absence of the

corpus delicti it is possible to establish in an

appropriate case commission of murder on

appropriate material being made available to the

court. In this case no such material is made available

to the court.”

12.In Lakshmi and Ors. v. State of Uttar Pradesh

(2002) 7 SCC 198 the legal position was reiterated thus :

“16.Undoubtedly, the identification of the body,

cause of death and recovery of weapon with which

the injury may have been inflicted on the deceased

are some of the important factors to be established

by the prosecution in an ordinary given case to bring

home the charge of offence under Section 302 I.P.C.

This, however, is not an inflexible rule. It cannot be

held as a general and broad proposition of law that

where these aspects are not established, it would be

fatal to the case of the prosecution and in all cases

10

Page 11 and eventualities, it ought to result in the acquittal of

those who may be charged with the offence of

murder. It would depend on the facts and

circumstances of each case. A charge of murder may

stand established against an accused even in

absence of identification of the body and cause the

death.”

13.In the absence of corpus delicti what the court looks for

is clinching evidence that proves that the victim has been

done to death. If the prosecution is successful in providing

cogent and satisfactory proof of the victim having met a

homicidal death, absence of corpus delicti will not by itself

be fatal to a charge of murder. Failure of the prosecution to

assemble such evidence will, however, result in failure of the

most essential requirement in a case involving a charge of

murder. That is precisely the position in the case at hand.

There is no evidence either direct or circumstantial about

Abdul Mabood having met a homicidal death. The charge of

murder levelled against the appellant, therefore, rests on a

rather tenuous ground of the two having been last seen

together to which aspect we shall presently advert when we

examine whether the two being last seen together is proved

as a circumstance and can support a charge of murder.

11

Page 12 14.The second aspect to which we must straightaway refer

is the absence of any motive for the appellant to commit the

alleged murder of Abdul Mabood. It is not the case of the

prosecution that there existed any enmity between Abdul

Mabood and the appellant nor is there any evidence to prove

any such enmity. All that was suggested by learned counsel

appearing for the State was that the appellant got rid of

Abdul Mabood by killing him because he intended to take

away the car which the complainant-Dr. Mohd. Alam had

given to him. That argument has not impressed us. If the

motive behind the alleged murder was to somehow take

away the car, it was not necessary for the appellant to kill

the deceased for the car could be taken away even without

physically harming Abdul Mabood. It was not as though

Abdul Mabood was driving the car and was in control thereof

so that without removing him from the scene it was difficult

for the appellant to succeed in his design. The prosecution

case on the contrary is that the appellant had induced the

complainant to part with the car and a sum of Rs.15,000/-.

The appellant has been rightly convicted for that fraudulent

act which conviction we have affirmed. Such being the

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Page 13 position, the car was already in the possession and control

of the appellant and all that he was required to do was to

drop Abdul Mabood at any place en route to take away the

car which he had ample opportunity to do during all the time

the two were together while visiting different places. Suffice

it to say that the motive for the alleged murder is as weak

as it sounds illogical to us. It is fairly well-settled that while

motive does not have a major role to play in cases based on

eye-witness account of the incident, it assumes importance

in cases that rest entirely on circumstantial evidence. [See

Sukhram v. State of Maharashtra (2007) 7 SCC 502,

Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8

SCALE 670, Pannayar v. State of Tamil Nadu by

Inspector of Police (2009) 9 SCC 152 ]. Absence of

strong motive in the present case, therefore, is something

that cannot be lightly brushed aside.

15.Coming then to the circumstances which according to

the prosecution prove the charge of murder against the

appellant, all that we have is that the appellant and Abdul

Mabood, the deceased, had left in a car bearing registration

13

Page 14 No.URM 2348 from No.1, Circular Road, Police Station

Dalanwala, Dehradun and that on 2

nd

July, 1986 the

appellant had gone to the house of one Akash Garg P.W.7

accompanied by a boy whom the witness identified as the

deceased-Abdul Mabood. The deposition of PW8 Badlu Ram,

posted as a Peon at Naval Cinema, Panipat, is also to the

same effect. According to the said witness the appellant had

gone to the cinema accompanied by a boy between 20-22

years of age whom he recognised as the alleged deceased-

Abdul Mabood on the basis of a photograph shown to him at

the trial. The only other evidence which has any relevance to

the circumstances that led to the disappearance of Abdul

Mabood is the deposition of Tejveer Singh P.W.11, resident

of Budha Kheri, Panipat, a businessman by occupation, who

claims to have seen the appellant with Abdul Mabood when

the two visited his farm. The boy was identified by the

witness by reference to a photograph shown to him as the

alleged deceased-Abdul Mabood. According to the witness

the appellant had gone away with his companion boy and

when he returned at night he was all alone. He also

appeared troubled and his clothes were stained with dust

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Page 15 and sand. The appellant asked for a towel to take a bath

and explained that his car had broken down and while trying

to put it in order his clothes got soiled. When the witness

asked him about the boy accompanying the appellant the

latter is alleged to have explained that he had stayed back

with his friend. The deposition of PW10 Ajit Chopra who is

also a resident of Panipat proved that the appellant had

visited his residence in the first week of July, 1987 and had

left his car at Naval Talkies which was then brought to his

factory by their driver Jai Bhagwan examined as PW9. The

trial Court on the basis of the above evidence held that the

deceased-Abdul Mabood had been taken by the appellant to

Panipat and disposed of by him on the basis that the two

were last seen together. The trial Court had, however,

found no motive or evidence for the alleged murder of the

deceased-Abdul Mabood. The High Court took a contrary

view and found that the charge of murder could not be held

to be proved on the basis of the evidence on record. The

High Court was, in our opinion, correct in arriving at that

conclusion. It is true that the tell-tale circumstances proved

on the basis of the evidence on record give rise to a

15

Page 16 suspicion against the appellant but suspicion howsoever

strong is not enough to justify conviction of the appellant for

murder. The trial Court has, in our opinion, proceeded more

on the basis that the appellant may have murdered the

deceased-Abdul Mabood. In doing so the trial Court over

looked the fact that there is a long distance between ‘may

have’ and ‘must have’ which distance must be traversed by

the prosecution by producing cogent and reliable evidence.

No such evidence is unfortunately forthcoming in the instant

case. The legal position on the subject is well settled and

does not require any reiteration. The decisions of this Court

have on numerous occasions laid down the requirements

that must be satisfied in cases resting on circumstantial

evidence. The essence of the said requirement is that not

only should the circumstances sought to be proved against

the accused be established beyond a reasonable doubt but

also that such circumstances form so complete a chain as

leaves no option for the Court except to hold that the

accused is guilty of the offences with which he is charged.

The disappearance of deceased-Abdul Mabood in the present

case is not explainable as sought to be argued before us by

16

Page 17 the prosecution only on the hypothesis that the appellant

killed him near some canal in a manner that is not known or

that the appellant disposed of his body in a fashion about

which the prosecution has no evidence except a wild guess

that the body may have been dumped into a canal from

which it was never recovered.

16.In Mohibur Rahman and Anr. v. State of

Assam (2002) 6 SCC 715 , this Court held that the

circumstance of last seen does not by itself necessarily lead

to the inference that it was the accused who committed the

crime. It depends upon the facts of each case. There may

however be cases where, on account of close proximity of

place and time between the event of the accused having

been last seen with the deceased and the factum of death, a

rational mind may be persuaded to reach an irresistible

conclusion that either the accused should explain how and in

what circumstances the victim suffered the death or should

own the liability for the homicide. Similarly in Arjun Marik

and Ors. V. State of Bihar 1994 Supp (2) SCC 372 , this

Court reiterated that the solitary circumstance of the

17

Page 18 accused and victim being last seen will not complete the

chain of circumstances for the Court to record a finding that

it is consistent only with the hypothesis of the guilt of the

accused. No conviction on that basis alone can, therefore,

be founded. So also in Godabarish Mishra v. Kuntala

Mishra and Another (1996) 11 SCC 264 , this Court

declared that the theory of last seen together is not of

universal application and may not always be sufficient to

sustain a conviction unless supported by other links in the

chain of circumstances. In Bharat v. State of M.P (2003)

3 SCC 106; two circumstances on the basis whereof the

appellant had been convicted were (i) the appellant having

been last seen with the deceased and (ii) Recovery of

ornaments made at his instance. This Court held :

“........Mere non-explanation cannot lead to the proof

of guilt against the appellant. The prosecution has to

prove its case against the appellant beyond

reasonable doubt. The chain of circumstances, in our

opinion, is not complete so as to sustain the

conviction of the appellant.....”

17.We may also refer to State of Goa v. Sanjay

Thakran and Anr. (2007) 3 SCC 755 where this Court

18

Page 19 held that in the absence of any other corroborative piece of

evidence to complete the chain of circumstances it is not

possible to fasten the guilt on the accused on the solitary

circumstance of the two being seen together. Reference

may also be made to Bodh Raj alias Bodha and Ors. v.

State of Jammu and Kashmir (2002) 8 SCC 45 where

this Court held :

“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 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 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....”

18.Finally in Jaswant Gir v. State of Punjab (2005)

12 SCC 438, this Court held that it is not possible to convict

Appellant solely on basis of 'last seen' evidence in the

absence of any other links in the chain of circumstantial

19

Page 20 evidence, the Court gave benefit of doubt to accused

persons.

19.Abdul Mabood-deceased was a young, physically stout

boy aged 20-22 years. In the absence of any suggestion as

to how and where he was done to death it is difficult to infer

anything incriminating against the appellant except a strong

suspicion when he returned at night to the farm of Tajveer

Singh with soiled clothes. The explanation given by the

appellant for his clothes getting soiled can also not said to

be so absurd that one could straightway reject and count the

same as an incriminating circumstance so conclusive in

nature that the Court could presume that they were

explainable only on the hypothesis that the appellant had

committed the crime alleged against him.

20.Suffice it to say that even if we take the most

charitable liberal view in favour of the prosecution, all that

we get is a suspicion against the appellant and no more. The

High Court was in that view justified in setting aside the

order passed by the trial Court and acquitting the appellant

20

Page 21 of the offence of murder under Section 302 IPC. The order

passed by the High Court deserves to be affirmed giving to

the appellant the benefit of doubt. We accordingly dismiss

the appeal filed by the appellant and discharge the notice of

show-cause issued to him.

……..………….……….…..…J.

(T.S. Thakur)

………………………… ..…..…J.

(Gyan Sudha Misra)

New Delhi

January 8, 2013

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