KRISHAN KUMAR AND ANR versus THE STATE OF HARYANA

Citation: [2023] 11 S.C.R. 861 · Decided: 08-08-2023 · Supreme Court of India · Bench: C.T. RAVIKUMAR · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 11 S.C.R. 861 : 2023 INSC 679
861
CASE DETAILS
KRISHAN KUMAR AND ANR.
v.
THE STATE OF HARYANA
(Criminal Appeal Nos. 1076-1077 of 2015)
AUGUST 08, 2023
[C. T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
HEADNOTES
Issue for consideration: Conviction of the appellants-accused u/
ss.201, 300, 302, IPC r/w s.34 based on circumstantial evidence, consisting 
of evidence of last seen, extra judicial confession, recovery of weapon of 
off ence and motive, if justifi ed.
Evidence – Circumstantial evidence – Conviction based upon – 
When not justifi ed:
Held: Categoric fi nding of the courts below on appreciation of the 
oral testimonies of the prosecution witnesses is that none of the witnesses 
had spoken of having lastly seen the deceased in the company of the 
accused alive and together – Thus, there cannot be any reason to hold 
that ‘last seen evidence’ is available in the instant case as a link in the 
chain of circumstantial evidence against the appellants– Despite such 
clear fi nding, the trial court presumed the presence of the deceased with 
the appellants at the fodder room near Katvawala passage just prior to 
his death, relying on certain other circumstances – Trial Court as also the 
High Court appreciated the evidence in an utterly perverse manner – In 
view of the fi ndings on each of the links in the chain of circumstances, 
no conviction can be entered against the appellants u/ss.201, 300 and 302 
r/w s.34, IPC – They are individually or even collectively not suffi  cient 
to connect the appellants with the crime – Impugned judgment of High 
Court confi rming the judgment of the trial Court set aside – Appellants 
acquitted granting benefi t of doubt. [Paras 12, 13 and 42]
862
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
Evidence – Circumstantial evidence – Last seen theory – 
Presumption as to the presence of the deceased along with the accused 
just prior to the occurrence, in absence of positive ocular evidence of 
prosecution witnesses of having seen the deceased in the company of 
the accused together and alive at a time proximate to the occurrence 
– Impermissibility:
Held: ‘Last seen’ as a link in the chain of circumstantial evidence, 
would suggest existence of oral testimony of at least one witness to establish 
that the deceased was last seen in the company of the accused – Application 
of the theory of ‘last seen’ in the absence of any other positive evidence to 
conclude that the accused and the deceased were last seen together would 
be hazardous – Its indirect application is also impermissible – In the present 
case, evidence of PW-10 is not free from suspicion and at any rate, it cannot 
be taken as a positive evidence suffi  cient to justify the application of the 
theory of ‘last seen’ or to presume the presence of deceased in the company 
of the appellants in the evening of 25.06.1999, describing it as ‘last seen’ 
evidence. [Paras 8, 21 and 25]
Evidence – Motive – Not proved/held to be insuffi  cient – Evidence 
of witnesses to be scrutinized with great care and caution:
Held: Motive is something which makes a man to do any particular 
act and it must, in all probability, exist behind every voluntary act – When 
the prosecution comes out with a motive and the motive is either not proved 
or held to be insuffi  cient, the evidence of witnesses of the said fact has to 
be scrutinized with great care and caution. [Paras 31 and 33]
Evidence – Circumstantial evidence – Motive – When not proved:
Held: Initially, PW-9 (brother of the deceased) suggested an incident 
that occurred on 29.05.1999 as motive, when his father and deceased brother 
were assaulted but, the deceased had managed to escape – But the appellants 
were not named as assailants in connection with that incident – It is not 
understood how that could be a motive – Appellants are also not named 
among the suspected abductors/kidnappers – The motive thereafter projected 
by the prosecution against the appellants was that they found their sister (‘P’) 
in a compromising position with deceased in the evening of 25.06.1999 in the 
fodder room near Katvawala passage – Though, none of the witnesses had 
863
spoken of even seeing sister of the appellants and the deceased either inside 
the fodder room near Katvawala passage at the relevant point of time or even 
at any time proximate to the occurrence near the aforesaid place – Further, 
no evidence was adduced on the side of the prosecution to establish that 
‘P’ was actually the sister of the appellants or at l

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