PRAKASHversusSTATE OF RAJASTHAN

                      [2013] 2 S.C.R. 458

A                          PRAKASH
                               v.
                     STATE OF RAJASTHAN
              (Criminal Appeal No. 26 of 2008 etc.)
                       MARCH 22, 2013.
B
    [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

       PENAL CODE, 1860:

C      ss. 302, 364 and 120-B - Minor boy kidnapped and
  murdered by three accused - Circumstantial evidence -
  Conviction and $entence of life imprisonment - Affirmed by
  High Courl - Held: Cogent and acceptable evidence adduced
  by prosecution has established the deceased last seen with
  accused, recovery of incriminating articles pursuant to
D disclosure statements of accused, motive for the crime, i.e.
  enmity between complaint and accused and threat given by
  accused to finish the family of complainant - It leads to a
  conclusion that appellants/accused kidnapped and murdered
  the deceased - Conviction and sentence upheld - Evidence
E - Circumstantial evidence - Motive.
        The minor son of PW-1 left for school on 15.4.1908,
  as usual, but did not return. On 19.4.1998 his dead-body
  was found on a hillock. The investigation culminated in
F a charge sheet being filed against A-1, A-2 and A-3 for
  offences punishable ulss 302, 364 and 120-B IPC. The
  trial court convicted the accused of the offences charged
  and sentenced each of them, inter alia, to imprisonment
  for life. The High Court affirmed the conviction and the
G sentences. Only A-2 and A-3 filed the appeals.

        Dismissing the appeals, the Court

       HELD: 1.1 The prosecution case rests solely on the
  circumstantial evidence. In Sharad Birdhichand Sharda's
H                            458
        PRAKASH v. STATE OF RAJASTHAN                  459

case, this Court has laid down golden principles of           A
standard of proof in a case of circumstantial evidence.
The relevant and material circumstances heavily relied on
by the prosecution are: (i) The deceased was last seen
in the company of the appellants-accused; (ii) Recow~ry
of incriminating articles in pursuance of the information     B
given by the appellants; and (iii) motive. [para 4-6] [462-
F; 463-A-B; 464-D-F]

    Sharad Birdhichand Sarda vs. State of Maharashtra,
                  =
1985 (1) SCR 88 (1984) 4 sec 116 - relied on.
                                                              c
      1.2 With regard to the last seen theory, prosecution
examined three persons, namely, PW-3, PW-4 (both
goldsmiths) and PW-10. PW-3 has stated that he was
known to complainant, A-1 and A-2. He further stated
that on the date of the incident at about 12 he had seen      D
all the accused persons on a scooter and the son of the
complainant sitting in between the three accused
persons on the scooter. PW-4 has stated that on the date
of the incident at about 12.15 he had seen the accused
moving in a scooter along with the small boy. Further,        E
PW-10 stated that on 15.4.2008 (the date of incident), he
saw the accused along with a boy moving towards the
Hillock. He stated that he was known to all the three
accused persons and the child. He was cross-examined
at length but nothing was elicited disproving his             F
statement. The prosecution very much relied on PWs 3,
4 and 10 to prove the last seen theory and the courts
below rightly accepted their version. This Court is
satisfied that the prosecution has succeeded in
establishing the circumstance of last seen theory. [para      G
11-12] [467-G-H; 468-A-E]

     1.3 In the course of investigation and in pursuance
of the information given by A-1, his pant and shirt stained
with blood were recovered from his house in the
                                                              H
     460      SUPREME COURT REPORTS              [2013] 2 S.C.R.

A presence of PWs 21 and 23. As per FSL report, the stains
  of blood on the pant and shirt are of human origin. [para
  15] (469-C-D]

       1.4 The analysis of the evidence, particularly the
B evidence o PW-1 and his wife PW-7, clearly shows that
  the prosecution has succeeded in establishing that the
  relations betweens the family of the complainant and the
  appellants-accused were hostile. In fact one of the
  accused had threatened the complainant and his wife of
C finishing their family. On the date her son went missing
  she had seen the three accused with a scooter near her
  house. This Court is satisfied that the prosecution has
  proved motive on the part of the appellants for committing
  the murder of the son of PWs 1 and 7. (para 13] (468-F-G]
D      1.5 In the facts and circumstances, this Court holds
  that the prosecution has established all the
  circumstances by cogent and acceptable evidence and
  it leads to a conclusion that it were the appellants/
  accused who kidnapped and committed the murder of
E the deceased. The trial court has rightly accepted the
  prosecution case and awarded life sentence which was
  rightly affirmed by the High Court. [para 16] (469-D-E]
                           Case Law Reference:

F          1985 (1) SCR 88         relied on          para 4

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 26 of 2008.

      From the Judgment and Order dated 02.03.2006 of the
G High Court of Rajasthan at Jodhpur in DB Crl. No. 154 of 2002.

           Seeraj Bagga for the Appellant.

           Shovan Mishra and Milind Kumar for the Respondent.
                  •
H·
         PRAKASH v. STATE OF RAJASTHAN                      461


    The Judgment of the Court was delivered by                      A
     P. SATHASIVAM, J. 1. These appeals are directed
against the final judgment and order dated 02.03.2006 passed
by the High Court of Judicature for Rajasthan at Jodhpur in D.B.
Criminal Appeal No. 154 of 2002, whereby the High Court B
dismissed the appeal filed by the appellants herein and
confirmed the order dated 31.01.2002 passed by the Additional
Sessions Judge, Barmer, Rajasthan in Sessions Case No. 28
of 1998 by which the appellants herein were convicted for the
offence punishable under Sections 302, 364 and 120-B of the C
Indian Penal Code (in short "IPC") and sentenced them to
undergo imprisonment for life under Section 302 and to pay a
fine of Rs.5000/- each.
     2. Brief facts:
                                                                    D
     a) This is a case of kidnapping and murder of a 7 year
old child out of enmity.      ·
     b) On 16.04.1998, Leeladhar (PW-1) lodged a report at
Police Station, Barmer stating that on 15.04.1998 his son
Kamlesh aged about 7 years left for the school in the morning       E
but did not return home till evening at 7.00 p.m. In pursuance
of the said report, the police made a search. On 19.04.1998,
on an information by Hansraj (PW-8), Khet Singh (PW-9) and
Bheemaram (PW-11) that a dead body of a boy was found
lying on the hill of Sujeshwar in mutilated condition, the police   F
along with one Leeladhar (PW-1) went to the spot. They found
that some parts of the dead body were eaten by the animals.
From the clothes, shoes, socks and school bag, PW-1
identified the dead body as that of his son.
                                                                    G
    c) On 19.04.1998, another report of kidnapping and
murder was lodged by Leeladhar (PW-1) suspecting the
involvement of Ramesh S/o Dashrath, Prakash s/o
Gautamchand, Ramesh @ Papiya S/o Bhanwar Lal, Pannu,
lnder S/o Murlidhar, Ganesh and Pappu. After the investigation      H
    462     SUPREME COURT REPORTS                  [2013] 2 S.C.R.

A and recovery, the police arrested Prakash, Ramesh@ Papia
  and Ramesh Khatri on 22.04.1998 and a charge sheet under
  Sections 302, 364 and 120-B of IPC was filed against the
  accused persons.
B       d) By order dated 31.01.2002 in Sessions Case No.28 of
  1998, the Additional Sessions Judge, Barmer convicted all the
  three accused persons for the offences punishable under
  Sections 302, 364 and 120-B of IPC and sentenced them under
  Section 302, to undergo life imprisonment with a fine of
  Rs.5000/- each, in default of payment of fine, further to undergo
C rigorous imprisonment for one year, under Section 364, RI for
  7 years with a fine of Rs.2000 each, in default of payment of
  fine, further to undergo RI for 6 months and under Section 120-
  B to undergo 7 years RI with a fine of Rs.2000 each, in default
  of payment of fine, further to undergo 6 months RI.
D
        e) Challenging the order of conviction and sentence, the
    appellants filed appeal being D.B. Criminal Appeal No. 154 of
    2002 before the High Court. By order dated 02.03.2006, the
    High Court dismissed the appeal filed by the appellants herein. ·
E
         f) Aggrieved by the said order, the appellants have
    preferred these appeals by way of special leave.
      3. Heard Mr. Seeraj Bagga, learned Amicus Curiae for the
  appellants and Mr. Shovan Mishra, learned counsel for the
F respondent-State.

    Discussion:
        4. In the case on hand, the prosecution case rests solely
  on the basis of circumstantial evidence. It was contended by
G the learned amicus curiae for the appellants that in the absence
  of direct evidence, the slightest of a discrepancy, depicting the
  possibility of two views would exculpate the accused of guilt,
  on the basis of benefit of doubt. Before considering the
  materials placed by the prosecution and the defence, let us
H analyse the legal position as declared by this Court on the
        PRAKASH v. STATE OF RAJASTHAN                        463
              [P. SATHASIVAM, J.]
standard of proof required for recording a conviction on the        A
basis of circumstantial evidence. In a leading decision of this
Court in Sharad Birdhichand Sarcia vs. State of Maharashtra,
(1984) 4 SCC 116, this Court elaborately considered the
standard of proof required for recording a conviction on the
basis of circumstantial evidence and laid down the golden           B
principles of standard of proof required in a case sought to be
established on the basis of circumstantial evidence which are
as follows:

           "153. A close analysis of this decision would show
    that the following conditions must be fulfilled before a case C
    against an accused can be said to be fully established:
           (1) the circumstances from which the conclusion of
    guilt is to be drawn should be fully established.
                                                                    D
          It may be noted here that this Court indicated that the
    circumstances concerned "must or should" and not "may
    be" established. There is not only a grammatical but a legal
    distinction between "may be proved" and "must be or
    should be proved" as was held by this Court in Shivaji          E
    Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC
    793 where the observations were made: [SCC para 19,
    p. 807):
          "Certainly, it is a primary principle that the accused
    must be and nQt merely may be guilty before a court can . F
    convict and the mental distance between 'may be' and
    'must be' is long and divides vague conjectures from sure
    conclusions."
           (2) the facts so established should be consistent only   G
    with the hypothesis of the guilt of the accused, that is to
    say, they should not be explainable on any other hypothesis
    except that the accused is guilty,
          (3) the circumstances should be of a conclusive
    nature and tendency,                                            H
    464       SUPREME COURT REPORTS               [2013) 2 S.C.R.

A              (4) they should exclude every possible hypothesis
          except the one to be proved, and
               (5) there must be a chain of evidence so complete
          as not to leave any reasonable ground for the conclusion
          consistent with the innocence of the accused and must
B         show that in all human probability the act must have been
          done by the accused.
          154. These five golden principles, if we may say so,
          constitute the panchsheel of the proof of a case based on
c         circumstantial evidence."
        5. Though learned counsel for the appellants referred other
  decisions, since the above principles have been followed in the
  subsequent decisions, we feel that there is no need to deal with
0 the same elaborately. With the above "five golden principles",
  let us consider the case of the prosecution and find out whether
  it satisfies all the tests.
        6. The relevant and material circumstances heavily relied
    on by the prosecution are:
E
        (i) The deceased was last seen in the company of the
    appellants-accused.
       (ii) Recovery of incriminating articles in pursuance of the
F information given by the appellants.
          (iii) Motive.

       7. Learned amicus curiae for the appellants as well as
  learned counsel for the respondent-State took us through the
G entire evidence, both oral and documentary. We scrutinized the
  same and also considered the respective submissions made
  by them. Before proceeding further, it is relevant to note that
  among these three accused, A-1 has not challenged his
  conviction and sentence. The present appeals are filed by A-2
H
         PRAKASH v. STATE OF RAJASTHAN                       465
               [P. SATHASIVAM, J.]
and A-3, wherein we refer the appellants which relates to A-2        A
and A-3 alone.
     8. The first witness examined by the prosecution was
Leeladhar (PW-1) - father of the deceased. In his deposition,
PW-1 deposed that he is residing at Hathidhora, near Shiv            B
Temple, Barmer. He had two sons and one daughter. His one
son died prior to the incident. His eldest son was Kamlesh,
thereafter his daughter Khushbu and then youngest son
Narendra. He is doing the work of light fitting. He usually goes
to work at 8.30-9.00 in the morning and returns back home at
8.00-8.30 in the night. Amongst his three children, Kamlesh          C
used to go to School. He studied in Alesh Narayan Khatri
School. On 15.04.1998, his son had gone to school at 11.30
a.m. At that time, son of Peetamber accompanied him. He
further narrated that at 5.45 p.m., when he was working at the
place of Cobblers, he received the news that his son Kamlesh         D
has not come back from the school. On receipt of the said
information, he went home where his wife informed that
Kamlesh has not come back from the school. Thereafter, he
went to the school and enquired from the school teacher, who
told that Kamlesh had not come to school on that day.                E
Thereafter, he enquired from all his relatives at Barmer and
searched for him but could not locate him. Then he lodged a
complaint with City Police Station stating that his child is not
traceable. Five days thereafter at about 7 p.m. the police
informed him that they found a dead body. Thereafter, he along       F
with Pre.mji Ghanshyamji went up to the hills. There is a mountain
behind the Shivji temple. He was taken up to that mountain and
Premji, Ghanshyamji and Meola had gone to the mountain top
where the dead body was lying. On seeing the dead body, all
the three came to C.I. Sahib and told that it was the dead body      G
of his son Kamlesh. During night, it was not possible to lift the
dead body, therefore, next morning he again went to that place
and collected the dead body of his son tied in a cloth and
brought the same to his home and buried it. He also stated that
the right hand of the dead body was cut and the same was             H
   466      SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A missing. The head of the dead body was also missing. There
  was a white shirt with black spots, black pant, black belt and
  black shoes put on the dead body. There was also a school
  bag with the dead body, which was of his son Kamlesh. The
  clothes worn on by the dead body was also of his son.
B
       9. He further narrated that on the second day after missing
  of his son, suspicion rose on Pappu who had gone to Delhi.
  He further explained that three months prior to the incident,
  Ramesh Khatri had entered into the house of lndramal Brahmin,
C whose house is adjacent to his house. In this regard he made
  a complaint to the parents of the girl as well as to the persons
  of the locality. The girl was of lndramal. Then Ramesh put the
  poison packet in the house of lndramal over the wall. Later on,
  the daughter of lndramal died by consuming that poison.
  Thereafter, Ramesh Khatri and lndramal Brahmin used to
D threaten him that they would take revenge of it and would
  abduct his son at the time of going to school. Three months
  after the said threat, they committed the murder of his son after
  abducting him when he was on the way to school. C.I. Sahib of
  police had taken away the clothes in his presence and also
E collected pant with black belt, a small blood smeared shit with
  black spot design, two shoes and socks etc. He lodged a report
  (Ex. P-01) with police station on the same day stating that his
  child did not come back home from school. He also informed
  the police that the dead body of his son was found five days
F after his missing. After conducting inquest, the police handed
  over the dead body of his son.
      10. The next witness relied on by the prosecution is PW-
  7, mother of the deceased. In her evidence, she deposed that
G she had three children. The name of the third child was
  Kamlesh. She narrated that about 14 months ago, she had sent
  Kamlesh to school. On the relevant date, when she was
  standing outside her house, the accused persons, namely,
  Pappu, Ramesh and Prakash present in the court were
  standing at the shop of Pappu. Amongst them, Pappu went to
H
         PRAKASH v. STATE OF RAJASTHAN                       467
               [P. SATHASIVAM, J.]
  his house and brought scooter and went on the scooter in the      A
  same direction in which Kamlesh and Santosh had gone.
  Thereafter, she went inside her home. At the relevant time, her
  husband was doing the work of light fitting and he used to go
 to work spot at 9 'O Clock in the morning return home at 8 'O
 Clock in the evening. On the relevant date, when he returned       B
 home, she informed him that their son Kamlesh had not come
 back from the school. Thereafter, her husband PW-1 went in
 search of Kamlesh along with her brother Prem. She also
 narrated the incident about Ramesh that 12 months prior from
 the date of her missing of her son, at 11 0 clock, she had seen    c
 the accused Ramesh entering the house of lndrammal which
 is close to her house. Ramesh had relationship with the
daughter of lndrammal, namely, Pappuni. The said Ramesh
 used to enter their house even during night. She informed the
same to lndrammal's wife. She also disclosed this fact to other     0
 neighbours. According to her, on coming to know of the said
 incident, lndrammal and his sister beat her for which she had
lodged a complaint with the police due to which they threatened
that they would take revenge of it. One month after the said
incident, Pappuni died by consuming poison and, thereafter,         E
the accused Ramesh used to quarrel with her and many times
threatened her. She also reported the matter to the police. With
the assistance of the local people, the matter was
compromised with him. However, she complained that after
compromise, her son Kamlesh was missing and subsequently
murdered. She narrated the motive for killing of her son by the     F
accused persons. She also asserted that Pappu, Ramesh and
Prakash had made her son disappear and according to her,
they did it on account of the death of Pappuni and thereafter,
murdered her son.
                                                                    G
     11. Apart from the evidence of PWs 1 and 7 with regard
to the last seen theory, prosecution examined three persons,
namely, Moolchand (PW-3), Gautam Chand (PW-4) both are
goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has
stated that he was known to Leeladhar, Ramesh and Prakash.          H
    468      SUPREME COURT REPORTS               [2013] 2 S.C.R.

A He further stated that on the date of the incident, in the
  afternoon at about 12 he had seen all the accused persons
  moving towards Panchpati Circle Road on a scooter. He had
  also seen the son of Leeladhar sitting in between the three
  accused persons on the scooter. Gautam Chand (PW-4), who
B is also a goldsmith, in his evidence has stated that on the date
  of the incident at about 12.15 he had seen the accused moving
  in a scooter along with the small boy. Though both PWs 3 and
  4 did not identify the. accused persons in the identification
  parade, in view of their assertion, we are satisfied that the
c prosecution has succeeded in establishing the circumstance
  of last seen theory.
        12. The next witness relied on by the prosecution to
  support the last seen theory is Bijlaram (PW-10). In his
  evidence, he stated that on 15.04.1998, he had gone to
D Sujesar Hillock for collecting firewood. While he was returning
  on Gelu Road, he saw the accused along with a boy moving
  towards the Hillock. The boy was wearing black pant and white
  shirt and black shoes. He further narrated that all the three
  accused and the child moved towards the Hillock. He identified
E all the accused in the Court. He also admitted that he was
  known to all the three accused persons and the child. He was
  cross-examined at length but nothing was elicited disproving
  his statement relied on by the prosecution. The prosecution very
  much relied on by PWs 3, 4 and 10 to prove the last seen
F theory and the courts below rightly accepted their version.
        13. The analysis of the above evidence discussed so far
  clearly show that the prosecution has succeeded in
  establishing that the relations betweens the family of Leeladhar
G and the appellants-accused were hostile. In fact, Ramesh Khatri,
  one of the accused had threatened Leeladhar and his wife of
  finishing their family. We are satisfied that the prosecution has
  proved motive on the part of the appellants for committing the
  murder of Kamlesh, son of PWs 1 and 7.
H         14. It is true that counsel appearing for the appellant
         PRAKASH v. STATE OF RAJASTHAN                       469
               [P. SATHASIVAM, J.]

pointed out the discrepancy in the evidence of PWs 11, 12, 16        A
and 21 about the condition of the dead body. It is relevant to
point out that these prosecution witnesses are villagers and
further the body was recovered only on 20.04.1998 whereas
the incident occurred on 15.04.1998. In fact, PWs 9 and 11
cattle grazers have deposed that the dead body was partly            B
eaten by dog. In view of the same, merely because the
prosecution witnesses were not consistent in describing the
dead body of 14 year old boy, the entire prosecution case
cannot be disbelieved.

     15. In the course of investigation and in pursuance of the      C
information given by A-1, pant and shirt stained with blood of
Ramesh were recovered from his house in the presence of
PWs 21 and 23. The pant and shirt were seized and sealed in
a packet marked as S-8. It is further seen that as per FSL
report, Exh.P-86, the presence of blood on the pant and shirt        D
are of human origin.

      16. In the light of the above discussion, we hold that the
prosecution has established all the circumstances by cogent
and acceptable evidence and if we consider all the                   E
circumstances it leads to a conclusion that it was the appellants/
accused who kidnapped and committed the murder of the
deceased Kamlesh. We are satisfied that the trial Court has
rightly accepted the prosecution case and awarded life
sentence which was affirmed by the High Court. We fully concur       F
with the said conclusion. Consequently, the appeals fail and the
same are dismissed.

R.P.                                       Appeals Dismissed.