SK. YUSUF versus STATE OF WEST BENGAL

Citation: [2011] 8 S.C.R. 83 · Decided: 14-06-2011 · Supreme Court of India · Bench: B.S. CHAUHAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2011) 8 S.C.R. 83 
SK. YUSUF 
v. 
STATE OF WEST BENGAL 
(Criminal Appeal No. 831 of 2007) 
JUNE 14, 2011 
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] 
A 
'"·· 
B 
Penal Code, 1860 - ss. 302 and 201 - Murder and 
causing disappearance of evidence of offence - Prosecution 
case that before committing murder, the appellant tried to 
C 
commit rape and on being resisted by the victifJ1, the appellant 
assaulted her on her head with spade and murdered and 
buried her in the graveyard - Conviction and sentence ulss. 
302 and 201 by the courts below -
On appeal, held: 
Circumstances have not been established - Courts below 
D 
convicted the appellant on a mere superfluous approach 
without in depth analysis of the relevant facts - No evidence 
that the victim and the appellant were seen together at the 
place of occurrence or nearby the same in close proximity of 
time - Theory of extra-judicial confession revealed by the 
E 
maternal uncle of the victim not corroborated from the 
statement of PW 13 or any other independent witness or 
. police personnel - No evidence of sexual assault on victim 
- Mere abscondance of the appellant cannot be taken as a 
circumstance giving rise to adverse inference against him -
F 
Also, spade recovered by Investigating Officer not sent for 
chemical analysis - Thus, appellant given benefit of doubt 
and acquitted of the charges of offences punishable ulss. 302 
and 201. 
According to the prosecution, on the fateful day 
G 
daughter of PW 2 went to agricultural field and did not 
return. PW 2 alongwith H and S went to search her and 
recovered. her dead body. PW1 lodged an FIR ·involving 
appellant as accused on the suspicion that appellant 
83 
H 
84 
SUPREME COURT REPORTS 
(2011) 8 S.C.R. 
A was seen by PW5 and 'SM' adjoining the said field and 
was also seen talking with the victim. The appellant had 
spade in his· hand and thereafter, he absconded. It was 
alleged that before committing the murder, the appellant 
tried to committee rape and on being resisted ~y the 
B victim, the appellant assaulted her on her head with 
spade and murdered and buried her in the graveyard. 
Thereafter, the appellant was arrested. On his disclosure 
an old spade and other things were recovered. The trial 
court convicted the appellant for offences punishable 
c under Sections 302 and 201 IPC. He was sentenced to 
rigorous imprisonment for life for commission of offence 
under Section 302 IPC and one year imprisonment for 
commission of offence under Section 201 IPC. The High 
Court upheld the order passed by the trial court. 
0 Therefore, the appellant filed the instant appeal. 
Allowing the appeal, the Court 
HELD: 1.1. The last seen theory comes into play 
where the time gap between the point of time when the 
E accused and deceased were last seen 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. [Para 14] [97-A-B] 
Mohd. Azad alias Samin v. State of West Bengal (2008) 
F 15 SCC 449:2008 (15) SCR 468; State thr. Central Bureau 
of Investigation v. Mah ender Singh Dahiya (2011) 3 SCC 
109: 2011 (1) SCR 1104 - relied on. 
1.2. It is evident that neither PW.4 nor PW.5 had stated 
G that either of them had seen the deceased alongwith the 
appellant near the place of occurrence in close proximity 
of time. All the witnesses deposed that appellant alone 
was seen near the place of occurrence with spade as he 
had gone there for catching the fish. Thus, there is no 
H evidence to the extent that the deceased and appellant 
SK. YUSUF v. STATE OF WEST BENGAL 
85 
were seen together at the place of occurrence or nearby 
A 
the same in close proximity of time. [Para 15) [97-C·D] 
1.3. While the appellant-accused was examined by 
the trial court under Section 313 Cr.P.C., he was asked 
the question that during that time PW.5 and 'SM' (not 
examined) had seen him talking with the deceased. The 
8 
appellant replied that he was innocent. It cannot be 
understood as no witness had deposed seeing the 
deceased talking with the appellant/accused, how such 
a question could be put to the accused. [Para 16 and 17) 
[97·E·F] 
C 
1.4. The court while dealing with a circumstance of 
extra-judicial confession must keep in mind that it is a 
very weak type of evidence and require appreciation with 
great caution. Extra-judicial confession must be 
D 
established to be true and made voluntarily and in a fit 
state of
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