STATE OF RAJASTHAN versus KHUMA

Citation: [2004] SUPP. 4 S.C.R. 219 · Decided: 08-09-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

STATE OF RAJASTHAN 
A 
V. 
KHUMA 
SEPTEMBER 8, 2004 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
B 
Penal Code, 1860-Section 302-Murder-Conviction by Trial Court 
based on circumstantial evidence-Acquittal by High Court-On appeal, 
Held: Circumstances were not of such conclusive nature as to exclude every 
possibility except accused being guilty-Identifying eye witness had very C 
weak eye sight, and could not have identified the accused by speech sine~ 
no other witness deposed that deceased spoke anything when he was near 
accused-It was improbable that accused who was allegedly absconding 
would carry incriminating materials, go near the police and present himself 
for arrest-Recovery of b/Ood stained articles on being pointed out by 
accused was immaterial as place of occurrence was easily accessible q_nd D 
:t" 
seized articles were not established to be carrying human blood. 
· 
Criminal trial-Evidence-Appreciation of-'Last seen theory' 
Applicability of-Discussed 
Respondent was tried for offence punishable under section 302 of E 
Indian Penal Code, 1860. Trial Court convicted respondent relying on 
three circumstances viz. that he was last seen with deceased, that he wa~ 
found in possession of incriminating articles at time of his arrest, and 
that blood stained articles were recovered on being pointed out by him. 
Respondent was awarded death sentence, but High Court acquitted him. F 
Hence the present appeals. 
Appellant-state contended that circumstances highlighted by 
prosecution were sufficient for finding the accused guilty. 
Dismissing the appeals, the Court 
HELD : 
1.1. The tests required to convict a person based on 
circumstantial evidence were not available in the present case. The 
circumstances were not conclusive in nature. The facts established are 
G 
not consistent only with the hypothesis of guilt and inconsistent H 
219 
220 
SUPREME COURT REPORTS [2004]-SUPP. 4 S.C.R. 
A with the innocence of guilt and it has no moral certainty to exclude 
the possibility of guilt by any person other than the accused. Thus, 
the High Court's well reasoned judgment does not warrant 
interference. (222-B, CJ 
B 
1.2. Circumstances which attracted notice of the High Court were 
that accused was last seen in the company of the deceased. It was based 
on the evidence of P.Ws. 7, 8 and 30. PW 7 was of very weak eye-sight 
and even, according to her own statemef!t, she could not identify a 
person even if he or· she passes ·nearby. The hypothetical "last seen 
theory" was pressed into service by the Trial Court by observing that 
C the accused and PW-7 being of the same village, she could have identified 
him from his speech. No witness stated that. the accused had spoken . 
even a word wl!en he was allegedly seen near the deceased. PW-8 only 
stated that she has seen the deceased and PW-7 together. He did not 
speak about accused being present nearby. Evidence of PW-30 is no 
D better. That being so, the last seen theory could not have been pressed 
into service. The other circumstance was the alleged recovery of the 
incriminating materials. The High Court found it absolutely improbable 
that the accused who was allegedly absconding, would carry the 
incriminating materials and go near the police and present himself so 
that he could be arrested with the incriminating materials. Third 
E circumstance was the recovery of blood stained articles. This was also 
discarded by the High Court as the place of occurrence was easily 
accessible and seized articles were not established to be carrying human 
blood. [221-E, F, G, H; 222-A] 
F 
G 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 
559-560 of 1999. 
From the Judgment and Order dated 25.8.98 of the Rajasthan High 
Court in D.B. Crl. M.R. No. 1/98, D.B. Crl. J.A. No. 121/98 and D.B. Crl. 
A. No. I 06 of 1998. 
Ms. Madhurima Tatia and Aruneshwar Gupta for the Appellant. 
The Judgment of the Court was delivered by 
AR1JITPASAYAT, J.: Heard learned counsel for the Appellant-State. 
H There is no appearance on behalf of the.respondent-accused. 
STATEv. KHUMA [PASAYAT,J.] 
221 
Respondent faced trial for alleged commission of offence punishable A 
under" Section 302 of the Indian Penal Code, 1860 (in short 'I.P.C. '). 
Though found guilty by the Trial Court, he was acquitted by the High Court. 
We have gone through the judgments of the High Court and the Trial 
Court. The Trial Court relied upon three circumstances to find the respondent 
guilty. They were : (I)

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