LexVENKATESAN versus STATE OF TAMIL NADU
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[2008] 8 S.C.R. 1060 )._ ' A VENKATESAN v. STATE OF TAMIL NADU (Criminal Appeal No. 308 of 2001) B MAY 16, 2008 [DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB '1 Al.AM, JJ.] Penal Code, 1860: s.302 - Conviction based on circum- c stantial evidence - Last seen theory - On facts, held: Wit- nesses did not speak of the date but only stated that they saw dcecased with accused on Tuesday - No evidence to show that accused and deceased were last seen together - Courts · below not justified in ordering conviction - Evidence - Cir- D cumstantial evidence. i Prosecution case was that the deceased had illicit • relations with the wife of A-1 and had also tried to molest wife of A-2. On 21.4.1988, when father of deceased, PW-2 returned to village, he found his son missing from the E house. He questioned his other son PW-3, who then told him that the deceased left in the company of A-2 and did not return. PW-2 advised PW-3 to go and search for the deceased. PW-3 searched for deceased but could not trace him. On 22.4.1988, body of deceased was found F lying in a field. A chargesheet was filed against A-1 and A-2.. Trial Court acquitted A-1 on the ground that evidence against him was insufficient, however convicted A-2, guilty of of- fence under s.302 IPC. High Court dismissed the appeal ·G by A-2. Hence the present appeal. ~ Allowing the appeal, the Court HELD: 1.1. For a crime to be proved, it is not neces- sary that the crime must be seen to have been committed .. ~ H 1060 VENKATESAN v. STATE OF 1061 TAMILNADU ~ and must, in all circumstances be proved by direct ocular A evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or tac- tum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the B evidentiary facts. To put it differently circumstantial evi- "' dence is not direct to the point in issue but consists of evidence of various other facts which are so closely as- sociated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. c [Para 2) [1065-G-H; 1066-B] 1.2. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found D + to bP. incompatible with the innocence of the accused or .. the guilt of any other person. [Para 3) [1066-C] Hukam Singh v. State of Rajasthan AIR (1977) SC 1063; Eradu and Ors. v. State of Hyderabad AIR (1956) SC 316; E Earabhadrappa v. State of Karnataka AIR (1983) SC 446; State of U.P v. Sukhbasi and Ors. AIR (1985) SC 1224; Ba/winder Singh v. State of Punjab AIR (1987) SC 350; Ashok Kumar Chatterjee v. State of M.P AIR (1989) SC 1890; Bhagat Ram v. State of Punjab AIR (1954) SC 6; C. ChengaReddy and Ors. v. State of A.P (1996) 10 SCC 19; Padala Veera F Reddy v. State of A.P and Ors. AIR (1990) SC 79; State of U.P. v. Ashok Kumar Srivastava (1992) Crl.LJ 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR (1952) SC 343; Sharad Birdhichand Sarda v. State of Maharashtra AIR (1984) SC 1622 - relied on. G ~ "Wills' Circumstantial Evidence" (Chapter VI) - referred to. 1.3. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evi- H 1062 SUPREME COURT REPORTS [2008) 8 S.C.R. A dence laid down by this Court as far back as in 1952. [Para 8] [1068-D] 2. PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he.had seen them on a Tuesday. The trial court 8 and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has stated that he did -l not know as to which of the accused i.e. whether A1 or A2 came with the deceased. Interestingly he stated that only C after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tues- day night he had seen him. He did not speak of any date. He also admitted in cross-examination that he did not re- member who came for taking drinks as several persons D were coming for taking drinks. It was not explained as to
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