NIZAM & ANR. versus STATE OF RAJASTHAN

Citation: [2015] 10 S.C.R. 786 · Decided: 04-09-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

A 
B 
[2015] 10 S.C.R. 786 
NIZAM&ANR. 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No.413 of 2007) 
SEPTEMBER 04, 2015 
[DIPAK MISRA AND R. BANUMATHI, JJ.] 
Penal Code, 1860- ss. 302 and 201 - Prosecution under 
- Based on circumstantial evidence - Conviction by courts 
C below - On appeal, held: For establishing the guilt on the 
basis of circumstantial evidence, the circumstances must be 
firmly established and the chain of circumstances must be 
complete from the facts - There are many loopholes in the 
prosecution case - In the facts of the case, chain of 
D circumstances were not complete so as to point only to the 
guilt of the accused and no other inference :- If more than 
one inferences can be drawn, then the accused must have 
the benefit of doubt - Therefore, conviction of appe/lants-
.E 
accused cannot be sustained - Evidence - Circumstantial 
Evidence. 
Evidence - Circumstantial evidence - 'Last seen theory' 
- Applicability of - Held: The theory should be applied by 
taking the prosecution case, in its entirety keeping in mind 
F the circumstances that precede and follow the point of being 
so last seen -
Only if the prosecution proves that the 
deceased was last seen alive in the company of accused, 
an inference can be drawn against the accused and only then 
onus can be 'shifted on accused u/s. 106 of Evidence Act- It 
G is not prudent to base the conviction solely on 'last seen 
theory' - Where the time gap between the deceased last seen 
and the recovery of his body is long, it would be unsafe to 
base the conviction without looking for corroboration from any 
H other circumstances and evidence -- Evidence Act, 1872 -
s.106. 
786 
NIZAM &ANR. v. STATE OF RAJASTHAN 
787 
Constitution of India, 1950-Art. 136 - Jurisdiction under A 
- Held: Normally, interference with concurrent findings is not 
permissible - But where material aspects have not been 
taken into consideration and where the findings of courts are 
unsupportable from the evidence resulting in miscarriage of 
justice, interference in exercise of such jurisdiction is B 
permissible. 
Allowing the appeal, the Court 
HELD: 1.1 Case of the prosecution is entirely based C 
on the circumstantial evidence. In a case based on 
circumstantial evidence, settled law is that the 
circumstances from which the conclusion of guilt is 
drawn should be fully proved and such circumstances 
must be conclusive in nature. Moreover, all the 0 
circumstances should be complete, forming a chain and 
there should be no gap left in the chain of evidence. 
Further, the proved circumstances must be consistent 
only with the hypothesis of the guilt of the accused 
tOtally inconsistent with his evidence. [Para 8] [794-0-E] E 
Bodhraj@ Bodha and Ors. vs. State of Jammu & 
Kashmir 2002 (2) Suppl. SCR 67: (2002) 8 SCC 
45; Trimukh Maroti Kirkan vs. State of 
Maharashtra 2006 (7) Suppl. SCR 156: (2006) 
10 SCC 681; Sunil Clifford Daniel vs. State of 
Punjab 2012 (7) SCR 1100: (2012) 11 SCC 205; 
Sampath Kumar vs. Inspector of Police, 
Krishnagiri 2012 (2) SCR 289: (2012) 4 SCC 124; 
Mohd. Arif@Ashfaq vs. State (NCT of Delhi) 201-1 
(10) SCR 56: (2011) 13 SCC 621 - relied on. 
F 
G 
1.2 Courts below convicted the appellants on the 
evidence of PWs 1 and 2 that deceased was last seen 
alive with the appellants on 23.01.2001. Undoubtedly, H 
788 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A "last seen theory" is an important link in the chain of 
circumstances and holds the courts to shift the burden 
of proof to the accused and the accused to offer a 
reasonable explanation as to the cause of death of the 
deceased. It is not prudent to base the conviction solely 
B on "last seen theory". "Last seen theory" should be 
applied taking into consideration the case of the 
prosecution in its entirety and keeping in mind the 
circumstances that precede and follow the point of being 
so last seen. [Para 14] [797-H; 798-A-C] 
c 
State of Rajasthan vs. Kashi Ram 2006 (8) Suppl. 
SCR 501: (2006) 12 SCC 254; Kiriti Pal vs. State 
of West Bengal (2015) 5 Scale 319 - referred to. 
o 
1.3 Only if the prosecution has succeeded in proving 
the facts by definite evidence that the deceased was last 
seen alive in the company of the accused, a reasonable 
inference could be drawn against the accused and then 
only onus can be shifted on the accused under Section 
E 106 of the Evidence Act. [Para 16] [799-F-G] 
1.4 Where time gap is long, it would be unsafe to base 
the conviction on the "last see

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