Holding

The conviction of the appellant was unsustainable as the circumstantial evidence did not conclusively establish his guilt, and the benefit of doubt must be extended to him.

Summary

The appellant Hatti Singh was convicted under Sections 364, 302 and 120(1) read with Section 34 IPC and Section 25 of the Arms Act for the murder of the deceased whose body was recovered after 14 days. The conviction was based on the recovery of the deceased's belongings from the appellant, his confession leading to the recovery of the vehicle's number plate, and the "last seen" testimony linking him to the victim, while the co‑accused were acquitted. The Supreme Court held that the identification of the dead body was doubtful, the recovery of articles was not free from doubt, and the "last seen" theory was inadequately corroborated, rendering the chain of circumstantial evidence incomplete. It further observed that a presumption under Section 114 of the Evidence Act cannot alone sustain a murder conviction, especially when other accused were given the benefit of doubt. Consequently, the Court extended the benefit of doubt to the appellant, set aside the conviction and ordered his release.

Issues considered

The adequacy of circumstantial evidence to sustain a murder conviction.
The reliability of the identification of the dead body.
The applicability of the presumption under Section 114 of the Indian Evidence Act in a murder case.
The validity of the "last seen" theory as the sole link between the accused and the victim.
Whether the benefit of doubt extended to co‑accused should also apply to the appellant.

Legislation cited

Arms Act, 1959s. 25
Indian Evidence Act, 1872s. 114
Indian Penal Code, 1860s. 120(1), s. 302, s. 34, s. 364

Subjects

circumstantial evidenceidentification of dead bodybenefit of doubtSection 114 presumptionlast seen theorymurder convictionIndian Evidence ActIndian Penal Code

Judgment

_..
" HATIISINGH A
v.
STATEOFHARYANA

APRIL 17, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B
- ·--~

Penal Code, 1860-ss. 364/30211201 rlw s.34-Murder-Circumstantial
evidence-Appellant convicted by Courts below-Other three accused
however acquitted-Held: Only distinctive features to hold Appellant guilty,
while acquitting other three accused were 'last seen together' evidence and
c
a confession of Appellant leading to recovery of num'ber plate of the vehicle
owned by deceased-However 'last seen together' evidence not proved-
Presumption under s.114 of the Evidence Act may be raised in respect of
commission of theft or receipt of stolen property, if a person is found to be
in possession of the property belonging to the deceased, but on such D
I presumption alone, Appellant could not have been convicted for commission
x of murder particularly when on the same evidence other accused had been

- given benefit of doubt-Appellant also entitled to benefit of doubt-Arms
Act, 1959-s. 25-Evidence Act, 1872-s.114.

Evidence-Circumsta·ntial evidence-Appreciation of-Held: E
Conviction can be based on circumstantial evidence-But therefor
prosecution must establish that the chain of circumstances only consistently
point to guilt of the accused and is inconsistent with his innocence-
Circumstances from which inference of guilt is sought to be drawn are
_.,, required to be cogently and firmly established-They have to be taken into
F
consideration cumulatively-It must be concluded that within all human
probability the accused committed the crime.

Four persons including Appellant were accused of causing the death
of one 'U'. Vehicle owned by the deceased had been found abandoned and
thereafter recovered by the police. Blood stains were found inside the vehicle. G
' -.. The next day a dead body was recovered from a canal which PW-13 is
identified to be of'U'. PWIO stated before the police that Appellant and the
other three accused had hired the vehicle of deceased. PWl 1 stated that he
was given lift by the deceased in the said vehicle in which the accused persons

221 H
222 SUPREME COURT REPORTS [2007] 5 S.C.R.

A were also travelling. .... -
Trial Court convicted Appellant under Sections 364/3021201 r/w Section
34 but acquitted the other three accused giving them benefit of doubt. The
grounds for convicting appellant while acquitting the other three accused
persons, apparently were recovery of pistol and cartridges as also some
B belongings of the deceased including his photograph and the electricity bill
as also the confession of the appellant that he had thrown the murder plate of
the said vehicle in a well and consequent recovery thereof. The conviction
,_ -
was upheld by the High Court.

In support of the present appeal it was contended that (1) the Trial Judge
C as also the High Court failed to consider the fact that recovery of the articles
at the behest of the appellant was not free from doubt; (2) the Trial Court
having disbelieved the testimony of PW-11 being wholly unreliable, there was
nothing to connect the appellant with the crime on the basis of the statements
of PW-10 also, whose evidence was also not free from doubt and that (3)
D Identification of the dead body itself is doubtful as the colours of the clothes,
on the basis whereof it was identified, as disclosed in the First Information
Report, and the evidence of the Investigating Officer in his inquest report, ~
are different. .,_ ·
...
The State, on the other hand, contended that as from the evidence of
E PW-10, it would appear that the deceased was last seen with the appellant as
also in view of recovery of articles belonging to the deceased and the number
plate of the vehicle from him, all the links in the chain to point out the guilty
only to the accused, must be held to have been completed.

Allowing the appeal, the Court
F
HELD: 1.L The dead body was recovered after 14 days. It was not in an
identifiable condition. The dead body was said to have been identified by PW-
13. He stated that the clothes seemed to be of 'U'. He was, thus, not definite
thereabout. (Para 12) (227-F-G)

G 1.2. In the First Information Report, the clothes, which were worn by
the deceased, as disclosed by PW-9, was said to be of blue colour with white
stripes. The clothes were identified on the basis of the fact that the same had
been tailored by one of the brothers of the deceased. He had not been examined
for reasons best known to the prosecution. The identifiable tailoring mark
H on the basis whereof, the clothes were said to have been identified had also
HATTI SINGH v. STA TE OF HARYANA 223

.. '( not been proved. However, in the inquest report, the shit found on the dead
body was said to be of cream colour. In the post-mortem report, the colour of
A

the shirt was said to be bluish brown lying separately with the body and torn
at places. It is, therefore, difficult to agree with the findings of the Trial Judge
and the High Court in regard to the identification of the dead body with
reference to the clothes found on the dead body.
[Paras 15 and 161 (228-D-E-Gl
B

2. The Trial Judge relied upon the recovery of a pistol form the appellant
- .,
A pistol was said to have been recovered also form another accused, as would
appear from the statement of the first informant PW-9 himself. Only one pistol
was recovered. Why recovery of the pistol form the other accused has been
disbelieved while accepting recovery thereof from the appellant has not been.
c
explained. If recovery from the other accused ha5 not been believed, on identical
evidence it is difficult to accept the case of the prosecution with regard to the
appellant [Para 17, 221 [229-A-DI

3. Even in regard to the arrest of the accused, there exist some D
discrepancies insofar as whereas according to PW-9, it was the police party,
j who had arrested them; according to A.S.I. Prem Chand (PW-17), while they
_y
were going to Village Hansi on receipt of a secret information PW9 and PW
... 11 met them at the taxi stand and later on the accused were found in the village.
[Para 181 [229-B-CI
E
4. According to PW-10, he went to Haridwar on 12.07.1995 and came
back on 24.07.1995. He was not even informed about the fact that the deceased
was missing. His statement, as noticed hereinbefore, was recorded only on
25.07.1995. He allegedly made a statement to the effect that the appellant and
his associates were known to him. After he made the said statement, he was
_,.., taken to the Village Bass. The accused having not been found there and having
F
been told that they were at Badchhaper. He went there and Police arrested
both Appellant and another accused together. Therefore, the arrest of the said
accused must have taken place on 25.07.1995. The Investigating Officer,
however, stated that they were arrested on 29.07.1995. It is, therefore, difficult
to accept that he is a reliable witness or the theory that the deceased was last G
seen with the appellant had been established. (Para 231 [230-A, B, Cl
' -i...
5. It may be true that there had been some recoveries from the appellant
including a purse and an electricity bill; but then a ring was also recovered
from a co-accused. He has been acquitted. A watch was recovered from another
accused. The only distinctive features to hold the appellant guilty of H
224 SUPREME COURT REPORTS [2007] 5 S.C.R.

"' ...
A commission of the offences, while acquitting the other three are only 'last
seen' and a confession leading to recovery of number plate of the vehicle. Other
accused were also last seen with the deceased, if PW-19 is to be believed.
[Para 25) [230-C, D, EJ

6. The evidence of last seen by itself apart from having not been proved
B in this case cannot be of much significance. It may provide for a link in the
chain. But unless the time gap between the deceased of having been last seen
in the company of the accused persons and the murder is proximate, it is
difficult to prove the guilt of the accused only on that basis. .. -
[Para 26) [230-E, Fl
c Ramreddy Rajesh Khanna Reddy and Anr. v. State of Andhra Pradesh,
[2006) 10 SCC 172 and State ofGoa v. Sanjay Thakran and Anr., JT (2007)
5 SC 146, referred to.

7. Conviction can be based on circumstantial evidence, but therefore the
prosecution must establish that the chain of circumstances only consistently
D point to the guilt of the accused and is inconsistent with his innocence.
Circumstances from which an inference of guilt is sought to be drawn are
required to be cogently and firmly established. They have to be taken into \
-1_
consideration cumulatively. They must be able to conclude that within all
human probability the accused committed the crime. [Para 281 [231-E, FJ ..
E
State of Rajasthan v. Kashi Ram, (2006) 11 SCALE 140, distinguished.

Geejaganda Somaiah v. State of Karnataka, - AIR (2007[ SCW 1681
and Raj Kumar Prasad Tamarkar v. State of Bihar & Anr., (2007) I SCALE
19, referred to.
F 8. The State submitted that recovery of the article would raise a ... ~

presumption under Section 114 of the Indian Evidence Act Application of such
a presumption is limited. A presumption may be in respect of commission of
theft or receipt of stolen property; if a person is found to be in possession of
the property belonging to the deceased, but on such presumption alone, the
G appellant could not have been convicted for commission of murder particularly
when on the same evidence other persons had been given benefit of doubt.
Having regard to the peculiar facts and circumstances of the case, the same ~- .
benefit is extended to the appellant. (Paras 32 and 331 (232-B, C, DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 922 of
H 2007.
HATTI SINGHv. STATEOFHARYANA(S.B. SINHA,J.] 225

• ~ From the Judgment and Order dated 04.04.2006 of the High Court of A
Punjab & Haryana at Chandigarh in Crl. Appeal No. 156-DB of2001.

Rishi Malhotra and Prem Malhotra for the Appellant.

Rajeev Gaur "Nassem" and T.V. George for the Respondent.
B
The Judgment of the Court was delivered by

- .... S.B. SINHA, J. I. Deceased was owner of two Maruti vans. The same
were used to be plied on hire. On or about I 1.07 .1995, he brought the vehicle
bearing Registration No. DDA 3665 at the taxi stand of Hansi. It was hired
by someone. He did not return thereafter. A search was made but he could c
not be traced. On or about 22.07.1995, Rajbir (PW-9) received an information
that one Maruti van had been seen abandoned and recovered by the police.
He went to the Police Station, Namaud. It was identified to be the same
vehicle which was owned by the deceased. Stains of blood were also noticed
inside the Maruti van. A First Information Report was lodged by him on the
same day, whereupon a case under Section 364 !PC was instituted. On the D
next day i.e. on 24.07.1995, a dead body was recovered from a canal. The dead
body was in such a condition that it did not bear any mark of identification.
An inquest was conducted. The dead body was identified by Jai Singh (PW-
13) and Satbir Singh on the basis of identification of the clothes found on
the person of the deceased, which were said to have been stitched by the E
said Satbir Singh. He had, however, not been examined. A statement was
made by Ram Kishan (PW- I0) before the police on 25.07 .1995 alleging that
the appellant and his three associates had hired the taxi of the deceased. On
the next day, i.e. on 26.07.1995, Balwan Singh (PW-11) made a statement
before the Investigating Officer, alleging that he was given a lift by the
....-"!.
deceased in the said Maruti van upto Village Mundhal, in which the accused F
persons were also travelling.

2. Appellant was arrested on 29.07.1995. On his personal search, a purse
belonging to the deceased was recovered. A pistol and two cartridges were
also said to have been recovered. One electricity bill of the deceased as also
G
his photograph were also allegedly recovered. He allegedly made a confession
t ~1- leading to recovery of the number plate of the vehicle from a well. Suresh,
another accused, was also arrested and one ring of silver on which the word
'Urned' was inscribed was recovered from him.

3. There appears to be some controversy as to whether a pistol was also H
226 SUPREME COURT REPORTS (2007] 5 S.C.R.

A recovered from him or not. He also made a confessional statement. Appellant
also made a confessional statement. Another accused Charanjit was also
arrested and a watch of HMT make was recovered from him, which was also
identified by Rajbir (PW-9) to be belonging to the deceased.

4. Upon completion of the investigation, charges under Sections 364/
B 302/ 20 I read with Section 34 IPC were framed against the appellant and the
other accused persons.

5. The prosecution in support of its case examined as many as 20 +- -
witnesses. Whereas, other accused persons, namely, Naresh, Charanjit and
C Suresh were given the benefit of doubt, the appellant was convicted for the
offences punishable under Sections 364/302 and 20 I IPC and Section 25 of
the Arms Act. He was sentenced to undergo imprisonment for life and to pay
a fine of Rs. I0,000/-, for the offence punishable under Section 302 IPC, in
default whereof to undergo rigorous imprisonment for a period of one year.
He was sentenced to undergo rigorous imprisonment for a period of three
D years and to pay a fine of Rs. 5,000/- for commission of the offence punishable
under Section 20 I IPC, in default whereof to undergo rigorous imprisonment
for a period of six months. He was sentenced to undergo rigorous imprisonment \
for a period of 7 years and to pay a fine of Rs. I 0,000/- for the offence ~
punishable under Section 364 IPC, in default whereof to undergo rigorous
imprisonment a period of one year,. He was also sentenced to undergo
E rigorous imprisonment for a period of 3 years and to pay a fine of
Rs.5,000/- for the offence punishable under Section 25 of the Arms Act, in
default whereof to undergo rigorous imprisonment for a period of 6 months,.
All the sentences, however, were directed to run concurrently. An appeal
preferred by the appellant herein thereagainst was dismissed by the High
p Court.

6. All the four accused were charged for commission of the same
offences. The distinctive features for singling out the appellant in recording
a judgment of conviction against him, while acquitting the other three accused
persons, appear to be :
G
(i) Recovery of pistol and cartridges as also some belongings of the
deceased including his photograph and the electricity bill;
(ii) Confession of the appellant that he had thrown the number
plate of the vehicle bearing Registration No. DOA 3665 in a
well and consequent recovery thereof.
H
HATTI SINGH v. STATE OF HARYANA [S.B. SINHA, J.] 227
..., ·( 7. Mr. Prem Malhotra, learned counsel appearing on behalf of the appellant A
would, in support of the appeal, submit :

(I) The learned Trial Judge as also the High Court committed a
serious error in passing the impugned judgment insofar as they
failed to take into consideration the fact that recovery of the
articles at the behest of the appellant was not free from doubt. B
(2) The Trial Court having disbelieved the testimony of Balwan
Singh (PW-11) being wholly unreliable, there was nothing to
connect the appellant with the crime on the basis of the statements
of PW-10 also, whose evidence was also not free from doubt.
(3) Identification of the dead body itself is doubtful as the colours C
of the clothes, on the basis whereof it was identified, as disclosed
in the First Information Report, and the evidence of the
Investigating Officer in his inquest report, are different.

8. The learned counsel appearing on behalf of the State, on the other D
hand, would submit that as from the evidence of PW-10, it would appear that
the deceased was last seen with the appellant as also in view of recovery of
articles belonging to the deceased and the number plate of the vehicle from
him, all the links in the chain to point out the guilt only to the accused, must
be held to have been completed.. Strong reliance, in this behalf, has been
placed on State of Rajasthan v. Kashi Ram, (2006) 11 SCALE 440]. E
9. The entire prosecution case apart from the recovery is based on the
evidences of the complainant (PW-9), Ram Kishan (PW-10) and Balwan Singh
(PW-I I). As the testimony of Balwan Singh has been found to be unreliable
by the Trial Judge, there is no need to take the same into consideration.
F
IO. Before, however, we examine the testimonies of some of the
prosecution witnesses, we may notice certain special features of this case.

11. The dead body was recovered after 14 days. It was not in an
identifiable condition.
G
12. The dead body was said to have been identified by Jai Singh (PW-
> --~ 13). He stated that the clothes seemed to be of Urned Singh. He was, thus,
not definite thereabout. He even could not state the direction of flow of water
of the canal. It is of some significance that according to him the dead body
was touching both sides of bank of the canal, which appears to be improbable. H
228 SUPREME COURT REPORT:; (2007] 5 S.C.R.
I' .,...
A
13. According to Santa Singh (PW-18), wto is an Assistant Sub
Inspector, the dead body was identified by Rajbir (P' v-9) and two others. He
did not disclose as to who the other two persons 1 ;ere.

B 14. Dr. Basant Lal Sirohiwal (PW-12), who con iucted the post-mortem
examination on the dead body of Urned Singh, in tis deposition stated :

" .......The dead bo~.vas emitting foul smell. I leight of the dead body
;-- -
on articulation was about 168 ems. The body v. as partially skeletinised
form. Maggots were crawling all over the ho :ly. Water weeds were
c present at places. Skull bones were exposed. Facial bones were
exposed. Short bones of hand was exposed. Ri JS were exposed along
with sternum. Theracic viscera was missing. Limb bones of lower
extremities in the region of tibia fibula were :xposed. The left foot
was attached only with the tag of soft tis: ues. Right foot was
missing. Stump of penis was identifiable. Publi1 heirs were 3 to 4 ems
D and black in colour."
\
15. The dead body was identified before the o\utopsy Surgeon by ~

Satbir Singh son of Dalip Singh and Ram Chander son of Shree Ram. In the
First Information Report, the clothes, which were won by the deceased, as
E disclosed by PW-9 Rajbir, was said to be of blue colo tr with white stripes.
The clothes were identified on the basis of the fact thit the same had been
tailored by Satbir Singh. He was one of the brothers of he deceased. He had
not been examined for reasons best known to the prosecL tion. The identifiable
tailoring mark on the basis whereof, the clothes wer: said to have been
identified had also not been proved. In the First Infc nnation Report, the ..,,...._,
F description of the deceased was given as under :
"Wheatish colour, stout body, height approxim 1tely 5'-6", aged 35
years, wearing pants and shirt of blue colour with white stripes and
he is sporting small beard ........"

G 16. However, in the inquest report, the shirt foun i on the dead body
was said to be of cream colour. In the post-mortem repo :t, the colour of the ... ~ ,
shirt was said to be bluish brown lying separately with the body and torn
at places. It is, therefore, difficult to agree with the findin! s of the Trial Judge
and the High Court in regard to the identification of t 1e dead body with
reference to the clothes found on the dead body.
H
HATTISINGHv. STATEOFHARYANA[S.B.SINHA,J.] 229
17. The Trial Judge relied upon the recovery of a pistol from the A
appellant. A pistol was said to have been recovered also from Naresh, as
would appear from the statement of the first informant PW-9 himself. Only one
pistol was recovered . Why recovery of the pistol from Naresh has been
disbelieved while accepting recovery thereof from the appellant has not been
explained.
B
•.
18. Even in regard to the arrest of the accused, there exist some
discrepancies insofar as whereas according to PW-9, it was the police party,
who had arrested them; according to A.S.I. Prem Chand (PW-17), while they
were going to Village Hansi on receipt of a secret information, Rajbir and
Balwan Singh met them at the taxi stand and later on the accused were found C
in the village.

19. lshwar Singh (PW-16) is also a Police Officer. According to him,
names of the arrested accused persons were Naresh, Ranjit, Ranbir and
another whose name was not known to him. Before the Trial Court he wrongly
identified Charanjit as Ranjit and Suresh as Naresh. D
20. As noticed hereinbefore, PW-9 spoke ofrecovery of the pistol from
Naresh, but according to Nihal Singh (PW-20), it was recovered from the
appellant. In regard to the recovery of purse, it is significant to notice a court
question put to PW-9, which is in the following terms :
E
"As per your statement only Naresh and Charanjit were taken into
custody at Anaj Mandi. How the purse was taken from the possession
of Hatti accused in your presence.

Ans. : Hatti was arrested later on and the purse was taken into
possession from him in my absence. Nothing was recovered from F
Hatti in my presence ........."

21. No explanation in this behalf is available on record.

22. The informant himself was declared hostile. PW-9 accepted that he
had appeared as a witness against Hatti in the court in connection with the G
murder of one Kishan driver. He had also given evidence in that case regarding
arrest and recoveries of articles from Naresh and Charanjit. Ram Kishan (PW-
10) also told about recovery of a pistol from the appellant alone and a silver
ring from Naresh. They do not say that two different pistols were recovered
from the appellant and Naresh separately. One of the witnesses must have
been telling lie before the court. If recovery from Naresh has not been H
230 SUPREME COURT REPORTS [2007] 5 S.C.R.

A believed, on identical evidence it is difficult to ac :ept the case of the
prosecution with regard to the appellant. >- y

23. According to PW-10, he went to Haridwar on 2.07.1995 and came
back on 24.07.1995. He was not even informed about the act that the deceased
was missing. His statement, as noticed herein before, W< 1s recorded only on
B 25.07.1995. He allegedly made a statement to the effect ti at the appellant and
his associates were known to him. After he made the sai. I statement, he was
taken to the Village Bass. The accused having not hem found there and
having been told that they were at Badchhaper. He wer t there and Police
arrested both Hatti and Naresh together. Therefore, the arrest of the said
C accused must have taken place on 25.07.1995. The Jnv,~stigating Officer,
however, stated that they were arrested on 29.07.1995. It is, :herefore, difficult
to accept that he is a reliable witness or the theory that he deceased was
last seen with the appellant had been established.

24. The testimonies of PW-I I, had not been relied upon by the learned
D Trial Judge.
25. It may be true that there had been some recoveries fr, >m the appellant
including a purse and an electricity bill; but then a ring was also recovered
from Naresh. He has been acquitted. A watch was recoverc j from another
accused. The only distinctive features to hold the appe. lant guilty of
E commission of the offences, while acquitting the other three are only 'last
seen' and a confession leading to recovery of nur.1ber plate •>f the vehicle.
Other accused were also last seen with the deceased, if P\v'-10 is to be
believed.

26. The evidence of last seen by itself apart from having not been
F proved in this case cannot be of much significance. It may provide for a link
in the chain. But unless the time gap between the deceased of having been
last seen in the company of the accused persons and the murder is proximate,
it is difficult to prove the guilt of the accused only on that ba ;is.

G 27. In Ramreddy Rajesh Khanna Reddy and Anr. v. Staff of Andhra
Pradesh, (2006] I0 SCC 172, this Court noticed :

"27. The last-seen theory, furthermore, comes into play wht re the time 1- ,
gap between the point of time when the accused and th1, deceased
were last seen alive and the deceased is found dead is so small that
H possibility of any person other than the accused being the author of
HATTISINGHv. STATEOFHARYANA[S.B. SINHA,J.] 231
the crime becomes impossible. Even in such a case courts should look A
I
" for some corroboration.

28. In State of U.P. v. Satish, [2005] 3 SCC 114], this Court.
observed:

"22. The last-seen theory comes into play where the time-gap
B
between the point of time when the accused and the 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
---< - ~1
the author of the crime becomes impossible. It would be difficult
in some cases to positively establish that the deceased was last
seen with the accused when there is a long gap and possibility c
of other persons coming in between exists. In the absence of any
other positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous to come
to a conclusion of guilt in those cases. In this case there is
positive evidence that the deceased and the accused were seen
together by witnesses PWs 3 and 5, in addition to the evidence
D

,.
"
of PW 2."

[See also Bodh Raj @ Bodha & Ors. v. State of Jammu & Kashmir,'
AIR (2002) SC 3164.]"

[See also State ofGoa v. Sanjay Thakran and Anr., JT (2007) 5 SC 146] E

28. There cannot be any doubt that conviction can be based on
circumstantial evidence, but therefor the prosecution must establish that the
chain of circumstances only consistently point to the guilt of the accused and
is inconsistent with his innocence. Circumstances, as is well known, from
F
__, which an inference of guilt is sought to be drawn are required to be cogently
and firmly established. They have to be taken into consideration cumulatively.
They must be able to conclude that within all human probability the accused
committed the crime. [See Geejaganda Somaiah v. State of Karnataka, AIR
(2007) sew 1681].
G
29. Reliance has been placed by the learned counsel for the State on
a decision of this Court in Kashi Ram (supra), wherein it was held that the
-- --').
incriminating circumstances must form a complete chain and must be consistent
with no other hypothesis except the guilt of the accused.

30. Therein, this Court was dealing with a case where the accused had H
232 SUPREME COURT REPORTS (2007] 5 S.C.R.

A killed his wife and two daughters. As in the aforeme.1tioned situation, when
the deceased were last seen the respondent therein, S :ction I06 of the Indian v ~

Evidence Act was held to be applicable. As in a case cfthat nature, probability
of a wife being murdered by an outsider may ordinc rily be ruled out, failure
to offer an explanation by the husband in the aforerrentioned situation would
itself be a circumstance which may be taken into cor sideration therefore. [See
B also Raj Kumar Prasad Tamarkar v. State ofBihar f Anr., (2007) I) SCALE
19 Para 24 & 25].

31. The said decision, in our opinion, is not 1.pplicable to the fact of the ;- -
instant case.
c 32. The learned counsel for the State would submit that recovery of the
articles would raise a presumption under Section I 14 of the Indian Evidence
Act. Application of such a presumption is limite 1 A presumption may be in
respect of commission of theft or receipt of stolen property; if a person is
found to be in possession of the property belonging to the deceased, but on
D such presumption alone, the appellant could 11ot have been convicted for
commission of murder particularly when on the same evidence other persons
had been given benefit of doubt.
~
33. Having regard to the peculiar facts :ind circumstances of the case, "
these Court is inclined to extend the same benefit to the appellant herein.
E
34. The impugned judgment of the High Court, therefore, cannot be
sustained, which is set aside accordingly. The appeal is allowed. The appellant
shall be released forthwith, if not required in any other case.

B.B.B. Appeal is allowed.

~--

.t- <