ARUN BHAKTA @ THULU versus STATE OF WEST BENGAL

Citation: [2008] 17 S.C.R. 73 · Decided: 05-12-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2008] 17 S.C.R. 73 
ARUN BHAKTA @ THULU 
A 
v. 
,. 
ST ATE OF WEST BENGAL 
(Criminal Appeal No.1969 of 2008) 
DECEMBER 5, 2008 
B 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
....., 
Penal Code, 1860 -
s. 302 -
Murder of wife -
_, 
Circumstantial evidence - Last seen theory - PWs resi/ed 
' 
from their statements denying to have last seen the accused c 
with the deceased - Conviction by courts below - On appeal, 
held: It would be unsafe to convict the accused in view of the 
statements of pws relating to last seen aspect -
Hence, 
acquitted. 
D 
Evidence -
Circumstantial evidence -
Reliance on -
Held: Conviction can be based on such evidence - Condition 
precedent for reliance before conviction, discussed. 
Appellant-accused was prosecuted uls. 302 IPC for 
E 
having killed his wife. According to prosecution there was 
no eye-witness to the incident. The accused was last 
,/ 
seen together with the accused as in the night of fateful 
day, the accused had slept with the deceased and in the 
__:; 
morning dead body of the deceased was found in h~r 
F 
room. Accused was not found in the room. During trial, 
~ 
PWs 8 and 9, father and mother of the deceased 
respectively, resiled from their statements that the 
accused and deceased slept together. The accused in his 
statement uls 313 Cr.P.C. took the plea of alibi. Trial court 
convicted the accused u/s 302 IPC. High Court confirmed 
G 
the conviction. Hence, the present appeal. 
"( 
Allowing the appeal, the Court 
,._ 
HELD: 1. The prosecution has failed to prove tl'le 
H 
73 
e 
74 
SUPREME COURT REPORTS 
[2008) 17 S.C.R. 
A accusations. Regarding the evidence relating to the la~t 
seen aspect, PW 1 stated that the accused and the 
deceased slept together in the room. Strangely PW 9 
/ 
'\, 
stated that the deceased slept alone, and the appellate 
had not come to his house. PW 1 is the sister of the 
B deceased. PW 8 the de-facto complainant i.e. the father of 
~ 
the deceased resiled from the statement made during 
investigation an_d stated that he had not told anybody that 
appellant was sleeping with the deceased. 'In view of the 
diametrically opposite version as to whether the accused 
:.--
,._ 
c and the deceased were $een together in the house it 
~ould be unsafe to direct his conviction. [Par~ 18) [84-
0-F] 
.. : .... ,, .. :·., 
. 
2.1. For a crime to be proved it is not necessary that . 
the crime must be seen to have been committed and 
D must, in all circumstances he proved by direct ocular 
evid;ence by examining before the Court those persons 
who had seen its commission. The offence can be 
".'II 
proved by circumstantial evidence also. The principal fact 
or factum probandum may_ be proved indirectly by means 
E of certain inferences draVlfn from factum probans, i.e., the 
evidentiary facts. To put it differently circumstantial 
evidence is not direct to the point in issue but consists 
of evidence of various other facts which are so closely 
-. 
associated with the facts in issue that taken together they 
,_ 
F form a chain of circumstances from which the existence 
of the principal fact can be legally inferred or. presumed. 
·-
[Para 7) [79-F-H] 
· 
" 
2.2. Where a case rests squarely on circumstantial 
G evidence, the inference of guilt can be justified only when 
all the incriminati'ng facts and circumstances are found 
to be incompatible with the innocence of the accused- or 
the guilt of any other person.· There is no doubt that 
y 
convictioiican be based solely on circumstantial 
H 
evidence,· but it should be tested by the touch-stone of 
.. 
-
-· 
ARUN BHAKTA@ THULU v. STATE OF WEST 
BENGAL 
75 
law relating to circumstantial evidence. They are the 
A 
circumstances from which the conclusion of guilt is to be 
drawn should be fully established. The circumstances 
concerned 'must' or 'should' and not 'may be' 
established; the facts so established should be 
consistent only with the hypothesis of the guilt of the 
B 
accused, that is to say, they should not be explainable 
on any other hypothesis except that the accused is 
""' 
guilty-; the circumstances should be of a conclusive 
nature and tendency; they should exclude every possible 
hypothesis except the one to be proved; andthere must c 
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 aH 
human probability the act must have been done by the 
accused. [Paras 8, 13 and 15] [8

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