RISHIPALversusSTATE OF UTTARAKHAND

                    [2013] 3 S.C.R. 917

                          RI SHI PAL                             A
                              v.
                 STATE OF UTTARAKHAND
             (Criminal Appeal No. 928 of 2009)
                     JANUARY 8, 2013
                                                                 8
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

      Penal Code, 1860 - ss.302, 171, 201, 365 and 420 -
Prosecution - Case based on circumstantial evidence -
Corpus delicti not recovered - Conviction by trial court ulss.   C
302, 171, 201, 364 and 420 /PC - High Court acquitted the
accused u/s.302 while upholding the conviction ulss. 171, 201
and 420 and further altering the conviction uls.364 to that ul
s.365 - Appeal to Supreme Court by accused challenging
conviction order - Notice to State as well as to the accused     D
to show cause as to why the order acquitting him uls.302 not
be set aside - Plea of accused to withdraw his appeal rejected
- Held: Conviction u/ss. 171, 201, 420 and 365 upheld -
Acquittal of the accused uls.302 is correct since charge of
murder not proved beyond reasonable doubt as it was not          E
proved that the deceased met a homicidal death -
Circumstances of the case also did not form a complete chain
as to leave no option except to hold that accused alone was
guilty of the offences - Evidence - Circumstantial Evidence.

     Criminal Trial - Absence of corpus delicti - Effect of -    F
Held: Absence of corpus delicti, by itself is, not fatal to a
charge of murder, if prosecution successfully proves that the
victim met a homicidal death.

    Appellant-accused was convicted by the trial court           G
u/ss.302, 171, 201, 364 and 420 IPC. In appeal, High Court
acquitted him u/s. 302 IPC and upheld the conviction u/
ss.171, 201 and 420 IPC. It further altered conviction u/s.

                             917                                 H
    918      SUPREME COURT REPORTS            [2013] 3 S.C.R.

A .364 to that 11/s. 365 IPC. The accused filed appeal to this
  Court challenging his conviction. This Court issued
  notice to the State as well as to the appellant-accused to
  show cause as to why his acquittal u/s.302 IPC might not
  be set aside. The appellant-accused prayed for
B withdraw.al of SLP filed by him. However, the prayer was
  declined by the Court.

          Dismissing the appeal, the Court

         HELD: 1. In the present appeal, no attempt was made
C   by ~he appellant to question the correctness of the
    findings reco~ded by the trial court in so far as the
    commission of offences punishable u/ss. 171, 201, 365
    IPC were concerned. The appellant had also sought
    withdrawal of the SLP which implied that he did not
D   question the correctness of the sentence recorded by the
    High Court in so far as other offences were concerned.
    That prayer was rejected which effectively kept the SLP
    alive, but no serious attempt was made to pursue the
    challenge against the order passed by the High Court in
E   so far as the conviction recorded by the said court under
    other offences was concerned. Thus, the Court is not
    called upon to examine the correctness of the conviction
    of the appellant for other offences. Even otherwise the
    findings recorded by the trial court and affirmed by the
F   High Court are supported by evidence in so far as
    commission of other offences are concerned. There is no
    miscarriage of justice in the appreciation of the evidence
    or recording of those finding to call for interference of
    this Court. [Para 8] [925-C-G]
G     2.1. The instant case is entirely bas&d on
  circumstantial evidence. No direct evidence has been
  adduced to prove that the deceased, whose corpus delicti
  has not been recovered, was done to death, nor any
  evidence adduced to show where and when the same
H was disposed of by the appellant assuming that he had
       RISHIPAL v. STATE OF UTTARAKHAND                919


committed the crime alleged against him. [Para 9] [925- A
H; 926-A]
     2.2. In the absence of corpus delicti, what the court
looks for is clinching evidence that proves that the victim
has been done to death. If the prosecution is successful
                                                              8
in providing cogent and satisfactory proof of the victim
having met a homicidal death, absence of corpus delicti
will not by itself be fatal to a charge of murder. Failure of
the prosecution to assemble such evidence will,
however, result in failure of the most essential requirement
in a case involving a charge of murder. In the present C
case, there is no evidence either direct or circumstantial
about the deceased having met a homicidal death. The
charge of murder levelled against the appellant, therefore,
rests on a rather tenuous ground of the two having been
last seen together. [Para 13] [929-A-C]                       D
     Rama Nand and Ors. v. State of Himacha/ Pradesh
(1981) 1 SCC 511: 1981 (2) SCR 444; Ram Chandra and
Ram Bharosey v. State of Uttar Pradesh AIR 1957 SC 381;
State of Karnataka v. M. V. Mahesh (2003) 3 SCC 353: 2003    E
(2) SCR 553; Lakshmi and Ors. v. State of Uttar Pradesh
(2002) 7 SCC 198: 2002 (1) Suppl. SCR 733 - referred to.
     2.3. It is not the case of the prosecution that there
existed any enmity between the deceased and the
appellant nor is there any evidence to prove any such F
enmity. All that was suggested by the prosecution was
that the appellant got rid of the deceased by killing him
because he intended to take away the car which the
complainant had given to him. If the .motive behind the
alleged murder was to somehow take away the car, it was G
not necessary for the appellant to kill the deceased for
the car could be taken away even without physically
harming the deceased. It was not as though the
deceased was driving the car and was in control thereof
so that without removing him from the scene it was H
    920     SUPREME COURT REPORTS                [2013] 3 S.C.R.


A   difficult for the appellant to succeed in his design. The
    prosecution case on the contrary is that the appellant had
    induced the complainant to part with the car and a sum
    of Rs.15,0001-. The appellant has been rightly convicted
    for that fraudulent act. The motive for the alleged murder
B   is as weak as it sounds illogical. While motive does not
    have a major role to play in cases based on eye-witness
    account of the incident, it assumes importance in cases
    that rest entirely on circumstantial evidence. [Para 15)
    [929-D-H; 930-A-B]
C       Sukhram v. State of Maharashtra (2007) 7 SCC 502:
    2007 (9) SCR 44; Sunil Clifford Daniel (Dr.) v. State of Punjab
    (2012) 8 SCALE 670; Pannayar v. State of Tamil Nadu by
    Inspector of Police (2009) 9 SCC 152: 2009 (13) SCR 367 -
    referred to.
D
       2.4. The High Court was correct in arriving at the
  conclusion that the charge of murder could not be held
  to be proved on the basis of the evidence on record. It is
  true that the tell-tale circumstances proved on the basis
E of the ev;dence on record give rise to a suspicion against
  the appellant but suspicion howsoever strong, is not
  enough to justify conviction of the accused, for murder.
  The trial Court proceeded more on the basis that the
  appellant 'may have' murdered the deceased. In doing so
  the trial court over-looked the fact that there was a long
F distance between 'may have', and 'must have' which
  distance must be traversed by the prosecution by
  producing cogent and reliable evidence. No such
  evidence is forthcoming in the instant case. The
  circumstances sought to be proved against the accused
G should not only be established beyond a reasonable
  doubt but also that sus;h circumstances form so complete
  a chain as leaves no option for the Court, except to hold
  that the accused is guilty of the offences with which he
  is charged. The disappearance of deceased in the
H present case is not explainable as sought to. be
       RISHIPAL v. STATE OF UTTARAKHAND              921


contended only on the hypothesis that the appellant · A
killed him near some canal in a manner that is not known
or that the appellant disposed of his body in a fashion
about which the prosecution has no evidence except a
wild guess that the body may have been dumped into a
canal from which it was never rec'overed. [Para 15] [931- B
D-G, H; 932·A-C]

    Mohibur Rahman and Anr. v. State of Assam (2002) 6
SCC 715; Arjun Marik and Ors. v. State of Bihar-1994 Supp
(2) SCC 372: 1994 (2) SCR 265; Gpdabarish Mishra v. C
Kuntala Mishra and Another (1996) 11 SCC 264: 1996 (7)
Suppl. SCR 6S8; Bharat v. State of M.P (2003) 3 SCC 106:
2003 (1) SCR 748; State of Goa v. Sanjay Thakran andAnr.
(2007) 3 SCC 755: 2007 (3) SCR 507; Bodh Raj alias Bodha
and Ors. v. State of Jammu and Kashmir (2002) 8 SCC 45:
2002 (2) Suppl. SCR 67; Jaswant Gir v. State of Punjab D
(2005) 12 sec 438 - relied on.
     2.5. Even if the most charitable liberal view is tak~i'£
in favour of the prosecution, all that is got, is a suspicion
against the appellant and no more. The High Court was E
in that view justified in setting aside the order passed by·
the trial court and acquitting the appell~nt of the offence'
of murder u/s. 302 IPC. The order passed by the High
Court is affirmed giving to the appellant the benefit of
doubt. [Para 20] [934-C-E]
                                                           F
                   Case Law Reference:
    1981 (2) SCR 44'4         referred to       Para 9
    AIR 1957 SC 381           referred to       Para 10'
                                                           G
    2003 (2) SCR 553          referred to       Para 11
    2002 (1) Suppl. SCR 733 referred to         Para 12
    2007 (9) SCR 44          referred to        Para 14
    (2012) 8 SCALE 670       referred to        Para 14    H
    922      SUPREME COURT REPORTS                (2013) 3 S.C.R.


A         2009 (13) SCR 367         referred to          Para 14
          (2002) 6 sec 115          relied on            Para 16
          1994 (2) SCR 265          relied on            Para 16
          1996 (7) Suppl. SCR 688 relied on              Para 16
B
          2003 (1) SCR 748          relied on            Para 16
          2007 (3) SCR 507          relied on            Para 17
          2002 (2) Suppl. SCR 67 relied on               Para 17
c
          (2005) 12 sec 438         relied on            Para 18
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 928 of 2009.
D       From the Judgment & Orde.r dated 27.08.2008 of the High
    Court of Uttarakhand at Nainital in Criminal Appeal No. 298 of
    2001.

      Neeraj Kumar Jain, Kamal Singh Pundir, Pratham Kant,
E Anil Kumar Sharma, Rameshwar Prasad Goyal for the
  Appellant.

          Abhishek Atrey, Aishverya Shandilya for the Respondent.

          The Judgment of the Court was delivered by
F      T.S. THAKUR, J. 1. This appeal arises out of a judgment
  and order dated 27th August, 2008 passed by the High Court
  of Uttarakhand at Nainital whereby Criminal Appeal No.298 of
  2001 filed by the appellant has been partly allowed. The High
  Court has while setting aside the conviction and sentence
G awarded to the appellant under Section 302 IPC upheld his
  conviction for offences punishable under Sections 171, 201 and
  420 IPC and the sentence awarded by the trial Court for these
  offences. The High Court has further convicted the appellant for
  an offence punishable under Section 365 IPC and sentenced
H
        RISHIPAL v. STATE OF UTTARAKHAND                   923
                  [T.S. THAKUR, J.]

him to undergo rigorous imprisonment for a period of seven         ft
years on that count.
       2. The facts giving rise to the arrest and eventual
 conviction of the appellant have been set out by the High Court
 at length. We need not. therefore, r.ecapitulate the same over
 again except to the extent it is absolutely necessary to do so    B
 for the disposal of this appeal. Suffice it to say that the
 appellant according to the prosecution dishonestly induced the
 complainant Dr. Mohd. Alam (P.W.2) at Dehradun to deliver his
 car bearing registration No.URM 2348 and a sum of Rs.
 15,000/- and at about 1.30 p.m. on the same day abducted          C
 Abdul Mabood, brother of the complainant with the intention to
 commit his murder. The prosecution case further is that
 sometime between 1.7.1987 and 2.7.1987, Abdul Mabood was
 murdered near a canal on Kairana Panipat Road in District
 Panipat and with a view to cause disappearance of any signs       D
of the crime committed by him threw the dead body of Abdul
 Mabood in the Canal. A report for the alleged commission of
offences under Sections 406, 419, 420 and 365 IPC was
lodged by Dr. Mohd. Alam on 6.7.1987 at Police Station
Dala.nwala based on which Crime No.185/1987 was registered         E
and the investigation undertaken by Muzaffar Ali - Sub-
Inspector, examined as PW17 at the trial. In the course of
investigation the said witness took the appellant into custody,
recovered the car bearing Registration No.U.R.M.2348 from
Panipat and effected seizure of some letters allegedly written     F
by him. Further investigation of the case was then handed over
to Mr. J.P. Sharma (P.W.18) who completed the same and
submitted a charge sheet against the appellant for offences
punishable under Sections 364, 302, 201, 420, 170 and 171
1.P.C.
                                                                   G
    3. The appellant was in due course committed to the Court
of Sessions to face trial before the Ill Additional Sessions
Judge, Dehradun who framed charges against the appellant to
which the appellant pleaded not guilty and claimed to be tried.
    4. At the trial Court the prosecution examined P.W. 1 H
    924      SUPREME COURT REPORTS                   [2013] 3 S.C.R.


A   Raees Ahmad, P.W.2 Dr. Mohd. Alam, also complainant in the
    case; P.W.3 Hari Om, P.W.4 Jiled.ar Sing·h, P.W.5 Hizfur
    Rahman the brother of Abdul Mabood-deceased; P.W.6 Anees
    Ahmad, P.W.7 Akash Garg, P.W.8 Badloo Ram, P.W.9 Jai
    Bhagwan, P.W.10 Ajit Chopra, and nine other witnesses
B   including P.W.17 Muzaffar Ali and P.W.18 J.P. Sharma who
    concluded the investigation and P.W.19 Ramanand Pandey,
    another Scientific Officer of Forensic Laboratory, Agra. The
    appellant examined D.W.1 Yashveer Singh, his brother and
    D.W.2 Constable Om Prakash, in his defence.
c         5. Appreciation of evidence thus assembled at the trial led
    the trial Court to the c::onclusion that the appellant had committed
    offences punishable under the provisions with which he stood
    charged and accordingly sentenced him to life imprisonment
    for the offence of murder besides a fine of Rs.3,000/-. For the
D   remaining offence he was sentenced to undergo rigorous
    imprisonment ranging between two months to five years with
    the direction that all the sentences shall run concurrently.

         6. Aggrieved by the judgment and order passed by the trial
E   Court the appellant preferred an appeal to the High Court of
    Allahabad from where the same was transferred to the High
    Court of Uttarakhand at Nainital in terms of Section 35 of the
    U .P. Re-organisation Act, 2000. The transferee High Court
    allowed the appeal but only in part and to the extent that the
F   appellant was acquitted of the charge of murder while his
    conviction for offences under Sections 171, 201 and 420 was
    maintained. The High Court also altered the conviction from
    Section 364 IPC to Section 365 IPC and sentenced him to
    undergo rigorous imprisonment for a period of seven years on
G   that count. The present appeal assails the correctness of the
    said order of the High Court.

         7. When this appeal came up for hearing before S.B.
    Sinha and Cyriac Joseph, JJ. on 24th October, 2008, this Court
    not only issued notice to the State in the appeal but also directed
H   notice to the appellant to show cause why the order passed by
        RISHIPAL v. STATF. OF UTTARAKHAND                      925
                  [TS. THAKUR, J.)

the High Court acquitting the appellant under Section 302 may          A
not be set aside. At this stage the appellant made a prayer for
withdrawal of the SLP filed by him against his conviction which
prayer was declined by this Court by order dated 5th January,
2009 on the ground that the Court had· issued a show cause
notice for reversal of the appellant's acquittal under Section 302     B
IPC.

      8. We have heard learned counsel for the parties at some
length who have taken us through the evidence on record. The
only question that was argued before us with some amount of            c
seriousness on both sides was whether the High Court was
justified in acquitting the appellant of the charge of murder held
proved against him by the trial Court. There was no attempt
made by the counsel for the appellant to question the
correctness of the findings recorded by the trial Court in so far
                                                                   0
as the commission of offences punishable under other
provisions of the IPC were concerned. As seen above, the
appellant had sought withdrawal of the SLP which implied that
he did not question the correctness of the sentence recorded
by the High Court in so far as other offences were concerned.
That prayer was rejected which effectively kept the SLP alive, E
but no serious attempt was made to pursue the challenge
against the order passed by the High Court in so far as the
conviction recorded by the said Court under other offences was
concerned. We are not in that view of the matter called upon
to examine the correctness of the conviction of the appellant F
for other offences. Even otherwise the findings recorded by the
trial Court and affirmed by the High Court are in our opinion
supported by evidence in so far as commission of other
offences are concerned. There is no miscarriage of justice in
the appreciation of the evidence or recording of those finding G
to call for our interference.                             ·

    9. Coming next to the question whether the prosecution
has brought home the charge of murder levelled against the
appellant, we must at the outset point out that the case is entirely   H
    926       SUPREME COURT REPORTS                  [2013] 3 S.C.R.


A   based on circumstantial evidence. No direct evidence has been
    adduced to prove that Abdul Mabood, whose corpus delicti has
    not been recovered, was done to death, nor any evidence
    adduced to show where and when the same was disposed of
    by the appellant assuming that he had committed the crime
8   alleged against him. The legal position regarding production
    of corpus delicti is well settled by a long line of decisions of
    this Court. We may briefly refer to some of those cases. In
    Rama Nand and Ors. v. State of Himachal Pradesh (1981) 1
    sec 511, this Court summed up the legal position on the
c   subject as:

          "........... In other words, we would take it that the corpus
          delicti, i.e., the dead-body of the victim was not found in
          this case. But even on that assumption, the question
          remains whether the other circumstances established on
D         record were sufficient to lead to the conclusion that within
          all human probability, she had been murdered by Rama
          Nand appellant? It is true that one of the essential
          ingredients of the offence of culpable homicide required
          to be proved by the prosecution is that the accused caused
E         the death" of the person alleged to have been killed.

          28. This means that before seeking to prove that the
          accused is the perpetrator of the murder, it must be
          established that homicidal death has been caused.
          Ordinarily, the recovery of the dead-body of the victim or
F
          a vital part of it, bearing marks of violence, is sufficient
          proof of homicidal death of the victim. There was a time
          when under the old English Law, the finding of the body
          of the deceased was held to be essential before a person
          was convicted of committing his culpable homicide. "I
G
          would never convict", said Sir Mathew Hale, "a person of
          murder or manslaughter unless the fact were proved to
          be done, or at least the body was found dead". This was
          merely a rule of caution, and not of law. But in those times
          when execution was the only punishment for murder, the
H
   RISHIPAL v. STATE OF. UTTARAKHAND                     927
             [TS. THAKUR, J.]

 need for adhering to this cautionary rule was greater.          A
 Discovery of the dead-body of the victim bearing physical
  evidence of violence, has never been considered as the
  only mode of proving the corpus delicti in murder.
  Indeed, very many cases are of such a nature where the
  discovery of the dead-body is impossible. A blind              B·
  adherence to this old "body" doctrine would open the door
  wide open for many a heinous murderer to escape with
 impunity simply because they were cunning and clever
  enough to destroy the body of their victim. In the context
 of our law. Sir Hale's enunciation has to be interpreted        c
 no more than emphasising that where the dead-body of
  the victim in a murder case is not found, other cogent and
 satisfactory proof of the homicidal death of the victim
 must be adduced by the prosecution. Such proof may be
 by the direct ocular account of an eye-witness. or by
                                                                 0
 circumstantial evidence. or bv both. But where the fact
 of corpus delicti. i.e. 'homicidal death' is sought to be
-established by circumstantial evidence alone. the
 circumstances must be of a clinching and definitive
 character unerringly leading to the inference that the          E
 victim concerned has met a homicidal death. Even so,
 this principle of caution cannot be pushed too far as
 requiring absolute proof. Perfect proof is seldom to be
 had in this imperfect world. and absolute certainty is a
 mvth. That is why under Section 3, Evidence Act, a fact
 is said to be "proved", if the Court considering the matters    F
 before it, considers its existence so probable that a
 prudent man ought, under the circumstances of the
 particular case, to act upon the supposition that it exists.
 The corpus delicti or the fact of homicidal death, therefore,
 can be proved by telling and inculpating circumstances          G
 which definitely lead to the conclusion that within all
 human probability, the victim has been murdered by the
 accused concerned .. .. "

                                       (emphasis supplied)       H
    928        SUPREME COURT REPORTS                  [2013] 3 S.C.R.

A       10. To the same effect is the decision in Ram Chandra &
    Ram Bharosey v. State of Uttar Pradesh AIR 1957 SC 381
    where this Court said:                                     ·

          "It is true that in law a conviction for an offence does not
B         necessarily depend upon the corpus delicti being found.
          There may be reliable evidence, direct or circumstantial
          of the commission of the murder though the corpu;
          delicti are not traceable."

         11 . Reference may also be made to State of Karnataka
C   v. M. V. Mahesh (2003) 3 SCC 353 where this Court observed:

          "It is no doubt true that even in the absence of the corpus
          delicti it is possible to establish in an appropriate case
          commission of murder on appropriate material being made
D         available to the court. In this case no such material is made
          available to the court."

          12. In Lakshmi and Ors. v. State of Uttar Pradesh (2002)
    7 sec 198 the legal position was reiterated thus :

E         "16. Undoubtedly, the identification of the body, cause of
          death and recovery of weapon with which the injury may
          have been inflicted on the deceased are some of the
          important factors to be established by the prosecution in
          an ordinary given case to bring home the charge of
F         offence under Section 3021.P.C. This, however, is not an
          inflexible rule. It cannot be held as a general and broad
          proposition of law that where these aspects are not
          established, it would be fatal to the case of the
          prosecution and in all cases and eventualities, it ought
          to result in the acquittal of those who may be charged with
G
          the offence of murder. It would depend on the facts and
          circumstances of each case. A charge of murder may
          stand established against an accused even in absence
          of identification of the body and cause the death."
H
        RISHIPAL v. STATE OF UTTARAKHAND                     929
                  [T.S. THAKUR,·J.]

      13. In the absence of corpus delicti what the court looks      A
for is clinching evidence that proves that the victim has been
done to death. If the prosecution is successful in providing
cogent and satisfactory proof of the victim having met a
homicidal death, absence of corpus delicti will not by itself be
fatal to a charge of murder. Failure of the prosecution to           B
assemble such evidence will, however, result in failure of the
most essential requirement in a case involving a charge of
murder. That is precisely the position in the case at hand. There
is no evidence either direct or circumstantial about Abdul
Mabood having met a homicidal death. The charge of murder            c
levelled against the appellant, therefore, rests on a rather
tenuous ground of the two having been last seen together to
which aspect we shall presently advert when we examine
whether the two being last seen together is proved as a
circumstance and can support a charge of murder.
                                                                     D
      14. The second aspect to which we must straightaway refer
 is the absence of any motive for the appellant to commit the
 alleged murder of Abdul Mabood. It is not the case of the
 prosecution that there existed any enmity between Abdul
 Mabood and the appellant nor is there any evidence to prove         E
 any such enmity. All that was suggested by learned counsel
appearing for the State was that the appellant got rid of Abdul
 Mabood by killing him because he intended to take away the
car which the complainant-Dr. Mohd. Alam had given to him.
That argument has not impressed us. If the motive behind the         F
alleged murder was to somehow take away the car, it was not
necessary for the appellant to kill the deceased for the car could
be taken away even without physically harming Abdul Mabood.
It was not as though Abdul Mabood was driving the car and was
in control thereof so that without removing him from the scene       G
it was difficult for the appellant to succeed in his design. The
prosecution case on the contrary is that the appellant had
induced the complainant to part with the car and a sum of
Rs.15,000/-. The appellant has been rightly convicted for that·
fraudulent act which conviction we have affirmed. Such being         H
    930      SUPREME COURT REPORTS                  (2013] 3 S.C.R.


A the position. the car was already in the possession and control
  of the appellant and all that he was required to do was to drop
  Abdul Mabood at any place en route to take away the car which
  he had ample opportunity to do during all the time the two were
  together while visiting different places. Suffice it to say that the
B motive for the alleged murder is as weak as it sounds illogical
  to us. It is fairly well-settled that while motive does not have a
  major role to play in cases based on eye-witness account of
  the incident, it assumes importance in cases that rest entirely
  on circumstantial evidence. [See Sukhram v. State of
c Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v.
  State of Punjab (2012) 8 SCALE 670, Pannayar v. State of
  Tamil Nadu by Inspector of Police (2009) 9 SCC 152].
  Absence of strong motive in the present case, therefore, is
  something that cannot be lightly brushed aside.
D        15. Coming then to the circumstances which according to
    the prosecution prove the charge of murder against the
    appellant, all that we have is that the appellant and Abdul
    Mabood, the deceased, had left in a car bearing registration
    No.URM 2348 from No.1, Circular Road, Police Station
E   Oalanwala, Dehradun and that on 2nd July, 1986 the appellant
    had gone to the house of one Akash Garg P.W.7 accompanied
    by a boy whom the witness identified as the deceased-Abdul
    Mabood. The deposition of PW8 Badlu Ram, posted as a
    Peon at Naval Cinema, Panipat, is also to the same effect.
F   According to the said witness the appellant had gone to the
    cinema accompanied by a boy between 20-22 years of age
    whom he recognised as the alleged deceased-Abdul Mabood
    on the basis of a photograph shown to him at the trial. The only
    other evidence which has any relevance to the circumstances
G   that led to the disappearance of Abdul Mabood is the
    deposition of Tejveer Singh P .W .11, resident of Bud ha Kheri,
    Panipat, a businessman by occupation, who claims to have
    seen the appellant with Abdul Mabood when the two visited his
    farm. The boy was identified by the witness by reference to a
H   photograph shown to him as the alleged deceased-Abdul
         RISHIPAL v. STATE OF UTTARAKHAND                         931
                   [TS. THAKUR, J.]

  Mabood. According to the witness the appellant had gone                A
  away with his companion boy and when he returned at night
  he was all alone. He also appeared troubled and his clothes
  were stained with dust and sand. The appe!lant asked for a
  towel to take a bath and explained that his car had broken down
  and while trying to put it in order his clothes got soiled. When       B
  the witness asked him about the boy accompanying the
  appellant the latter is alleged to have explained that he had
  stayed back with his friend. The deposition of PW10 Ajit Chopra
  who is also a resident of Panipat proved that the appellant had
  visited his residence in the first week of July, 1987 and had left     c
  his car at Naval Talkies which was then brought to his factory
  by their driver Jai Bhagwan examined as PW9. The trial Court
 on the basis of the above evidence held that the deceased-
 Abdul Mabood had been taken by the appellant to Panipat and
 disposed of by him on the basis that the two were last seen
                                                                         0
 together. The trial Court had, however, found no motive or
 evidence for the alleged murder of the deceased-Abdul
 Mabood. The High Court took a contrary view and found that
 the charge of murder could not be held to be proved on the basis
 of the evidence on record. The High' Court was, in our opinion,
 correct in arriving at that conclusion. It is true that the tell-tale   E
 circumstances proved on the basis of the evidence on record
 give rise to a suspicion against the appellant but suspicion
 howsoever strong is not enough to justify conviction of the
 appellant for murder. The trial Court has, in our opinion,
 proceeded more on the basis that the appellant may have                 F
 murdered the deceased-Abdul Mabood. In doing so the trial
 Court over looked the fact that there is a long distance between
 'may have' and 'must have' which distance must be traversed
by the prosecution by producing cogent and reliable evidence.
 No such evidence is unfortunately forthcoming in the instant            G
case. The legal position on the subject is-well settled and does
not require any reiteration. The decisions of this Court have on
.numerous occasions laid down the requirements that must be
satisfied in cases resting on circumstantial evidence. The
essence of the said requirement is that not only should the              H
    932      SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A circumstances sought to be proved against the accused be
  established beyond a reasonable doubt but also that such
  circumstances form so complete a chain as leaves no option
  for the Court except to hold that the accused is guilty of the
  offences with which he is charged. The disappearance of
B deceased-Abdul Mabood in the present case is not explainable
  as sought to be argued before us by the prosecution only on
  the hypothesis that the appellant killed him near some canal in
  a manner that is not known or that the appellant disposed of
  his body in a fashion about which the prosecution has no
C evidence except a wild guess that the body may have been
  dumped into a canal from which it was never recovered.

          16. In Mohibur Rahman and Anr. v. State of
    Assam (2002) 6 SCC 715, this Court held that the
    circumstance of last seen does not by itself necessarily lead
D   to the inference that it was the accused who committed the
    crime. It depends upon the facts of each case. There may
    however be cases where, on account of close proximity of place
    and time between the event of the accused having been last
    seen with the deceased and the factum of death, a rational
E   mind may be persuaded to reach an irresistible conclusion that
    either the .accused should explain how and in what
    circumstances the victim suffered the death or should own the
    liability for the homicide. Similarly in Arjun Marik and Ors. V.
    State of Bihar 1994 Supp (2) SCC 372, this Court reiterated
F   that the solitary circumstance of the accused and victim being
    last seen will not complete the chain of circumstances for the
    Court to record a finding that it is consistent only with the
    hypothesis of the guilt of the accused. No conviction on that
    basis alone can, therefore, be founded. So also in Godabarish
G   Mishra v. Kuntala Mishra and Another (1996) 11 SCC 264,
    this Court declared that the theory of last seen together is not
    of universal application and may not always be sufficient to
    sustain a conviction unless supported by other links in the chain
    of circumstances. In Bharat v. State of M.P (2003) 3 SCC 106;
H   two circumstances on the basis whereof the appellant had been
        RISHIPAL v. STATE OF UTTARAKHAND                    933
                  [T.S. THAKUR, J.]

convicted were (i) the appellant having been last seen with the    A
deceased and (ii) Recovery of ornaments made at his instance.
This Court held :

     "........ Mere non-explanation cannot lead to the proof of
     guilt against the appellant. The prosecution has to prove     8
     its case against the appellant beyond reasonable doubt
     The chain of circumstances, in our opinion, is not
     complete so as to sustain the conviction of the
     appellant..... "

     17. We may also refer to State of Goa v. Sanjay Thakran       C
and Anr. (2007) 3 SCC 755 where this Court held that in the
absP.nce of any other corroborative piece of evidence to
complete the chain of circumstances it is not possible to fasten
the guilt on the accused on the solitary circumstance of the two
being seen together. Reference may also be made to Bodh            D
Raj alias Bodha and Ors. v. State of Jammu and Kashmir
(2002) 8 SCC 45 where this Court held :

     "The last-seen theory comes into play where the time-gap
     between the point of time when the accused and the E
     deceased were seen last 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. It would be difficult in some cases
     to positively establish that the deceased was last seen F
     with the accused when there is a long gap and possibility
     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 .... "                                        G

    18. Finally in Jaswant Gir v. State of Punjab (2005) 12
SCC 438, this Court held that it is not possible to convict
Appellant solely on basis of 'last seen' evidence in the absence
                                                                   H
    934      SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A of any other links in the chain of circumstantial evidence, the
  Court gave benefit of doubt to accused persons.

        19. Abdul Mabood-deceased was a young, physically stout
  boy aged 20-22 years. In the absence of any suggestion as to
  how and where he was done to death it is difficult to infer
8
  anything incriminating against the appellant except a strong
  suspicion when he returned at night to the farm of Tajveer Singh
  with soiled clothes. The explanation given ~Y the appellant for
  his clothes getting soiled can also not said to be so absurd that
  one could straightway reject and count the same as an
C incriminating circumstance so conclusive in nature that the Court
  could presume that they were explainable only on the hypothesis
  that the appellant had committed the crime alleged against him.

       20. Suffice it to say that even if we take the most charitable
D liberal view in favour of the prosecution, all that we get is a
  suspicion against the appellant and no more. The High Court
  was in that view justified in setting aside the order passed by
  the trial Court and acquitting the appellant of the offence of
  murder under Section 302 IPC. The order passed by the High
E Court deserves to be affirmed giving to the appellant the benefit
  of doubt. We accordingly dismiss the appeal filed by the
  appellant and discharge the notice of show-cause issued to him.

   K.K.T.                                       Appeal dismissed.