Supreme Court of India
SK. YUSUFversusSTATE OF WEST BENGAL
- Citation
- 2011 INSC 415
- Decided
- 14 June 2011
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The conviction under Sections 302 and 201 IPC cannot be sustained as the prosecution failed to establish guilt beyond reasonable doubt, leading to the appellant's acquittal.
Summary
The appellant, Yusuf, was accused of murdering 13‑year‑old Sahanara Khatun and of concealing the offence under Sections 302 and 201 IPC. The prosecution relied on the claim that Yusuf attempted to rape the girl, struck her with a spade and buried her, supported by witnesses who saw Yusuf near the field with a spade, an alleged extra‑judicial confession recorded by the victim's maternal uncle, and the appellant's subsequent abscondence. The Supreme Court held that none of the witnesses saw the victim with the accused, the extra‑judicial confession was uncorroborated and unreliable, the spade was never forensic‑tested, and there was no evidence of sexual assault; moreover, mere abscondence cannot be used for adverse inference. Consequently, the prosecution failed to prove guilt beyond reasonable doubt, and the appellant was acquitted on the benefit of doubt.
Issues considered
- The prosecution proved the murder and concealment beyond reasonable doubt using circumstantial evidence.
- Whether the 'last seen' theory applies when no witness saw the victim with the accused.
- Whether an extra‑judicial confession, uncorroborated, can sustain a conviction.
- Whether the appellant's abscondence can be drawn as an adverse inference.
- Whether the failure to send the alleged murder weapon for chemical analysis defeats the prosecution's case.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 201, s. 302
Subjects
murdercircumstantial evidenceextra‑judicial confessionlast seen theoryabscondencebenefit of doubtIPC 302IPC 201forensic analysis
Judgment
[2011) 8 S.C.R. 83
SK. YUSUF A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 831 of 2007)
JUNE 14, 2011 '"··
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Penal Code, 1860 - ss. 302 and 201 - Murder and
causing disappearance of evidence of offence - Prosecution
case that before committing murder, the appellant tried to C
commit rape and on being resisted by the victifJ1, the appellant
assaulted her on her head with spade and murdered and
buried her in the graveyard - Conviction and sentence ulss.
302 and 201 by the courts below - On appeal, held:
Circumstances have not been established - Courts below D
convicted the appellant on a mere superfluous approach
without in depth analysis of the relevant facts - No evidence
that the victim and the appellant were seen together at the
place of occurrence or nearby the same in close proximity of
time - Theory of extra-judicial confession revealed by the E
maternal uncle of the victim not corroborated from the
statement of PW 13 or any other independent witness or
. police personnel - No evidence of sexual assault on victim
- Mere abscondance of the appellant cannot be taken as a
circumstance giving rise to adverse inference against him - F
Also, spade recovered by Investigating Officer not sent for
chemical analysis - Thus, appellant given benefit of doubt
and acquitted of the charges of offences punishable ulss. 302
and 201.
According to the prosecution, on the fateful day G
daughter of PW 2 went to agricultural field and did not
return. PW 2 alongwith H and S went to search her and
recovered. her dead body. PW1 lodged an FIR ·involving
appellant as accused on the suspicion that appellant
83 H
84 SUPREME COURT REPORTS (2011) 8 S.C.R.
A was seen by PW5 and 'SM' adjoining the said field and
was also seen talking with the victim. The appellant had
spade in his· hand and thereafter, he absconded. It was
alleged that before committing the murder, the appellant
tried to committee rape and on being resisted ~y the
B victim, the appellant assaulted her on her head with
spade and murdered and buried her in the graveyard.
Thereafter, the appellant was arrested. On his disclosure
an old spade and other things were recovered. The trial
court convicted the appellant for offences punishable
c under Sections 302 and 201 IPC. He was sentenced to
rigorous imprisonment for life for commission of offence
under Section 302 IPC and one year imprisonment for
commission of offence under Section 201 IPC. The High
Court upheld the order passed by the trial court.
Therefore, the appellant filed the instant appeal.
0
Allowing the appeal, the Court
HELD: 1.1. The last seen theory comes into play
where the time gap between the point of time when the
E accused and 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 the author of the
crime becomes impossible. [Para 14] [97-A-B]
Mohd. Azad alias Samin v. State of West Bengal (2008)
F 15 SCC 449:2008 (15) SCR 468; State thr. Central Bureau
of Investigation v. Mah ender Singh Dahiya (2011) 3 SCC
109: 2011 (1) SCR 1104 - relied on.
1.2. It is evident that neither PW.4 nor PW.5 had stated
G that either of them had seen the deceased alongwith the
appellant near the place of occurrence in close proximity
of time. All the witnesses deposed that appellant alone
was seen near the place of occurrence with spade as he
had gone there for catching the fish. Thus, there is no
H evidence to the extent that the deceased and appellant
SK. YUSUF v. STATE OF WEST BENGAL 85
were seen together at the place of occurrence or nearby A
the same in close proximity of time. [Para 15) [97-C·D]
1.3. While the appellant-accused was examined by
the trial court under Section 313 Cr.P.C., he was asked
the question that during that time PW.5 and 'SM' (not
8
examined) had seen him talking with the deceased. The
appellant replied that he was innocent. It cannot be
understood as no witness had deposed seeing the
deceased talking with the appellant/accused, how such
a question could be put to the accused. [Para 16 and 17)
[97·E·F] C
1.4. The court while dealing with a circumstance of
extra-judicial confession must keep in mind that it is a
very weak type of evidence and require appreciation with
great caution. Extra-judicial confession must be D
established to be true and made voluntarily and in a fit
state of mind. The words of the witness must be clear,
unambiguous and clearly convey that accused is the
perpetrator of the crime. The. "extra-judicial confession
can be accepted and can be the basis of a conviction if E
it passes the test of credibility". [Para 22) [100-B-0]
State of Rajast~an v. Raja Ram (2003) 8 SCC 180: 2003
(2) Suppl. SCR 445; Kulvinder Singh and Anr. v. State of
Haryana (2011) 5 SCC 258 - relied on.
F
1.5. PW.11 who is maternal uncle of the deceased
had deposed about extra-judicial confession made by the
accused in presence of others, though he was not able
to explain. who were the other persons as no other
person has been examined in this respect. PW.19-10 had G
deposed that PW.11 had told him about the confession
by the accused in presence of other persons and police
personnel. The accused had told him also that dead body
was buried in the courtyard. Thus, the theory of extra· ,
judicial confession revealed by PW.11 does not get H
86 SUPREME COURT REPORTS [2011] 8 S.C.R.
A corroboration from the statement of PW.13 or any other
independent witness or police personnel. Nor the body
of the deceased was recovered from the courtyard. While
considering the material contradictions in the statement
of PW.11 and PW.13, it would not be safe to accept his
8 version in this respect. In the opinion of PW 18-doctor,
death was due to combine effect of injuries and
suffocation. The incised wound could be caused by a hit
of sharp edge of the spade. The haema toma on the
victim could be caused by a hit of heavy blunt weapon.
C PW 18 did not speak of any sign of sexual assault on the
deceased before or after her death. [Paras 23 and 24) [100-
E-H; 101-A-E]
1.6. In case a person is absconding after commission
of offence of which he may not even be the author, such
D a circumstance alone may not be enough to draw an
adverse inference against him as it would go against the
doctrine of innocence. It is quite possible that he may be
running away merely being suspected, out of fear of
police arrest and harassment. Thus, mere abscondance
E of the appellant cannot be taken as a circumstance which
give rise to draw an actverse inference against him. [Para
25) [101-G-H; 102-A-C]
Matru @ Girish Chandra v. The State of U.P. AIR 1971
F SC 1050: 1971 (3) SCR 914; Paramjeet Singh @ Pamma
v. State of Uttarakhand AIR 2011 SC 200: 2010 (11) SCR
1064; Rabindra Kumar Pal @ Dara Singh v. Republic of India
(2011) 2 sec 490: 2011 (1) SCR 929 - relied on.
1.7. Undoubtedly, conviction can be base.d solely on
G circumstantial evidence. However, the court must bear in
mind while deciding the case involving the commission
of serious offence based on circumstantial evidence that
the prosecution case must stand or fall on its own legs
and cannot derive any strength from the weakness of the
H defence case. The circumstances from which the
SK. YUSUF v. STATE OF WEST BENGAL 87
conclusion of guilt is to be drawn should be fully A
established. The facts so established should be
consistent only with the hypothesis of the guilt of the
accused and they should not be explainable on any
other hypothesis except that the accused is guilty. The
circumstances should be of a conclusive nature and B
tendency. 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
show that in all human probability the act must have
been done by the accused. [Para 26) [102-D-G] c
Sharad Birdhichand Sarcia v. State of Maharashtra AIR
1984 SC 1622: 1985 (1) SCR 88; Krishnan v. State
represented by Inspector of Police (2008) 15 SCC 430;
Wakkar and Anr. v. State of Uttar Pradesh. (2011) 3 SCC 306
- relied on. D
1.8. No presumption could be drawn on the issue of
last seen together merely on the fact that PW.2, father of
the deceased had stated that the victim had gone to pluck
the jhinga and her dead body was recovered from there. E
The witnesses merely stated that the accused was
present in the close proximity of that area. That does not
itself establish the fast seen theory because none of the
witnesses said that the accused and deceased were seen
together. Most of the witnesses had deposed that the F
accused was having spade. It may connect-the appellant
to the factum of digging the earth. A person going for
catching fish normally does not take a spade with him.
[Para 27] (102-H; 103-A-B]
1.9. The nature of the admissibility of the facts G
discovered pursuant to the statement of the accused
under Section 27 of Evidence Act, 1872 is very limited. If
an accused deposes to the police officer the fact as a
result of which the weapon with which the crime is
committed is discovered, and as a result of such H
88 SUPREME COURT REPORTS (2011] 8 S.C.R.
A disclosure, recovery of the weapon is made, no inference
can be drawn against the accused, if there is no evidence
connecting the weapon with the crime alleged to have
been committed by the accused. The spade had not been
sent for chemical analysis as admitted by PW.19-1.0.
B himself and there was no explanation furnished as for
what reason it was not sent. In case of circumstantial
evidence, not sending the weapon used in crime for
chemical analysis is fatal for the reason that the
circumstantial evidence may not lead to the only
c irresistible conclusion that the appellant was the
perpetrator of the crime and none else and that in the
absence of any report of Serologist as to the presence
of human blood on the weapon may make the conviction
of the accused unsustainable. Also, there is no medical
0 evidence or suggestion by any person as to the sexual
assault on the deceased. Therefore, it merely remained
the guesswork of the people at large. Mere imagination
that such thing might have happened is not enough to
record conviction. There is no medical evidence or
suggestion by any person as to the sexual assault on the
E deceased. Therefore, it merely remained the guesswork
of the people at large. Mere imagination that such thing
might have happened is not enough to record conviction.
[Para 27] [103-C-H]
F Akhi/esh Hajam v. State of Bihar (1995) Supp 3 SCC
357 - relied on.
1.10. The incident occurred in a broad day light at
9.30 a.m. in the month of August in the agricultural field
G surrounded by agricultural field of others. Therefore, the
presence of a large number of persons in the close
vicinity of the place of occurrence can be presumed and
it is apparent also from the statement of PW.6. Thus, had
the deceased been with the appellant, somebody could
have seen her at the place of occurrence. It cannot be a
H positive evidence as concluded by the courts below that
SK. YUSUF v. STATE OF WEST BENGAL 89
none other than the appellant could commit her murder A
because no one else had been there at the place of
· occurrence. In fact, nobody had ever seen the deceased
at the place of occurrence. Digging the earth by a single
person to the extent that a dead body be covered by
earth requires a considerable time and there was a B .
possibility that during such period somebody could have
seen the person indulged in any of these activities,
though no evidence is there to that extent. The
circumstances from which the conclusion of guilt is to be
drawn in such a case should be fully established. The c
circumstances concerned "must or should" and "not and
may be" established. In the instant case, the
circumstances have not been established. The courts
below convicted the appellant on a mere superfluous
approach without in depth analysis of the relevant facts. 0
Thus, the appellant is given benefit of doubt and
acquitted of the charges of offences punishable under
Sections 302 and 201 IPC. [Paras 28, 29 and 30) [104-A-
G]
Case Law Reference: E
2008 (15) SCR 468 Relied on. Para 14
2011 (1) SeR 1104 Relied on. Para 14
2003 (2) Suppl. SCR 445 Relied on. Para 22 F
(2011) 5 sec 258 Relied on. Para 22
1971 (3) SeR 914 Relied on. Para 25
2010 (11) SeR 1064 Relied on. Para 25
G
2011 (1) SCR 929 Relied on. Para 25
1985 (1) SeR 88 Relied on. Para 26
(2008) 15 sec 430 Relied on. Para 26
(2011) 3 sec 306 Relied on. Para 26 H
90 SUPREME COURT REPORTS [2011] 8 S.C.R.
A (1995) Supp 3 SCC 357 Relied on. Para 27
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 831 of 2007.
From the Judgment & Order dated 28.6.2006 of the High
· B Court at Calcutta in Criminal Appeal No. 229 of 2000. ·
R.K. Gupta (AC), M.K. Singh for the Appellant.
Tara Chandra Sharma, Kishan Datta, Neelam Sharma for
the Respondent.
c
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This criminal appeal has been
preferred against the judgment and order dated 28.06.2006
D passed by the High Court of Calcutta in C.R.A.No. 229 of 2000,
by which it dismissed the appeal of the appellant against the
judgment and order of conviction dated 26.5.2000 passed by
the Additional Sessions Judge, First Court, Burdwan in
Sessions Trial No. 7 of 1999, convicting the appellant under
Sections 302 and 201 of the Indian Penal code, 1860
E (hereinafter referred to as 'IPC') and appellant has been
imposed the sentence to suffer rigorous imprisonment for life
under Section 302 IPC and sentence of one year under
Section 201 IPC. Both the sentences have been directed to
run concurrently.
F
2. The facts and circumstances giving rise to this case
are that:
(A) On 31.08.1991, Sahanara Khatun, daughter of Abdul
G Rajak, resident of village Batrish Bigha, PS: Jamalpur, aged
13 years, had gone to pluck jhinga at about 9.30 A.M. from
her jhinga field. She did not return till 10.30 A.M., her father
Abdul Rajak alongwith Habibur Rahaman and Sirajul Islam
went to search her, however, could not trace her in the jhinga
H field. They looked for her in bamboo grove in nearby graveyard
SK. YUSUF v. STATE OF WEST BENGAL 91
[DR. S.S. CHAUHAN, J.]
and found a freshly dug earth, thus, they removed the soil and A
found the dead body of Sahanara Khatun.
(8) lmdad Ali (PW.1) lodged the FIR on the same day at
12.05 hours under Sections 302 and 201 IPC at Police Station
Jamalpur, District Burdwan at a distance of 8 kilometres from
8
the place of occurrence, wherein the appellant was named as
accused on the suspicion that appellant was seen by Abdul
Rashid (PW.5) and Swapan Murmu catching fish in the canal
adjoining his jhinga field and was also seen talking with
deceased. The appellant was having a spade in his hand,
when it is inquired from the appellant, he replied that he had C
gone to catch the fish near railway track. Subsequently, the
appellant absconded. In the FIR, it had already been
mentioned before committing the murder, Yusuf, the appellant
tried to commit rape and on being resisted by the deceased,
the appellant assaulted her on her head with spade and D
murdered and buried her in the graveyard. Thus, investigation
ensued. The appellant was arrested on 7.9.1991 by the
villagers in the paddy fields near Batrish Bigha and handed
over to the police. It was on his disclosure that an old spade,
one ghuni and one enamel thala (plate) were recovered. After E
completing the investigation, chargesheet was filed against the
appellant. He denied his involvement in the crime pleading not
guilty. Thus, he was put to trial. The prosecution examined 19
witnesses to prove its case.
F
(C) After conclusion of the trial, the Additional Sessions
Judge, Burdwan, vide judgment and order dated 26.5.2000
found the appellant guilty of offences punishable under Sections
302 and 201 IPC and sentenced him to life imprisonment and
fine of Rs.1,000/- under Section 302 IPC and further sentenced
to one year rigorous imprisonment and fine of Rs.500/- under G
Section 201 IPC.
(D) Being aggrieved from the aforesaid judgment, the
appellant preferred Criminal Appeal No. 229 of 2000 in the
High Court of Calcutta which has been dismissed vide H
92 SUPREME COURT REPORTS [2011) 8 S.C.R.
A judgment and order dated 28.6.2006. Hence, this appeal.
3. Shri R.K. Gupta, learned Amicus Curiae, has submitted
that it is a case of circumstantial evidence. There is no
evidence on record that Sahanara Khatun, deceased, was seen
with the appellant at the place of occurrence. The spade
8
recovered by the Investigating Officer during investigation had
not been sent for chemical analysis. The trial court as well as
the High Court placed a very heavy reliance upon extra-judicial
confession allegedly made by the appellant before Nurul Islam
(PW.11) and Ali Hossain (PW.13) and others though there was
C no such confession. Nurul Islam is the brother-in-law of Abdul
Rajak (PW.2), father of the deceased. Ali Hossain (PW.13) is
a resident of the village of Nurul Islam (PW.11). He did not
support the version of extra-judicial confession put forward by
Nurul Islam (PW .11 ). There are contradictory statements
· D regarding catching hold of the appellant at Jamalpur after one
· week of the incidence. There is no evidence of sexual assault
on the deceased. Or. Samudra Chakraborty (PW.18), who
conducted the post-mortem on the body of Sahanara Khatun
(deceased) did not mention in his report that any sexual assault
E was made on the deceased prior to her death. Thus, the appeal
deserves to be allowed.
4. On the contrary, Shri Tara Chandra Sharma, learned
counsel appearing for the State, has vehemently opposed the
F appeal contending that there are concurrent findings of fact
which do not require any interference by this Court.
Undoubtedly, the case is based on circumstantial evidence but
chain is complete and the circumstantial evidence is so strong
that it unmistakably points to the guilt of the appellant and that
circumstances are incapable of explanation upon any other
G reasonable hypothesis that of the guilt of the appellant. There
have been sufficient material on the basis of which the two
courts below have convicted the appellant and the said
judgments do not require any interference. The appeal lacks
merit and is liable to be dismissed.
H
SK. YUSUF v. STATE OF WEST BENGAL 93
[DR. B.S. CHAUHAN, J.]
5. We have considered the submissions made by the A
learned counsel for the parties and perused the record. Before
proceeding further, it may be necessary to refer to the findings
recorded by the courts below briefly.
6. Trial Court's findings: B
I. It appears from the evidence of Nurul Islam (PW.11) and
Ali Hossain (PW.13) that the accused made an extra-judicial
confession before them and also before other villagers when
he was caught by them about 7 days after his leaving away
from his village after the date of occurrence. The court further C
held that there was no direct evidence and it was a case of
circumstantial evidence and there was enough evidence on
record, particularly, of lmdad Ali (PW.1 ), Abdul Rajak (PW.2),
Habibar Rahaman (PW.3), Abdul Majid Mallick (PW.4), Abdul
Rashid (PW.5), Alirul Rahmal (PW.6) and Abdul Salam Mallick D
(PW. 7) that accused was present near the place of occurrence
at the relevant time when Sahanara Khatun, deceased went to
. jhinga field and the accused was carrying at that time one
spade.
E
II. It appears from the evidence of Abdul Rashid (PW.5)
and Alirul Rahmal (PW.6) that there was no one else at the
place of occurrence adjacent to jhinga field and the accused
was carrying one spade on the basis of which the trial Court
came to the following conclusion:
F
"So there may be a reasonable inference that the accused,
who had one spade in his hand and who was engaged in
catching fish near the P.O., suddenly attacked the victim-
Sahanara when she came to the jhinga field and thereafter
attempted to rape her and when he was resisted by her G
he became violent and murdered Sahanara with the help
of his spade. The medical evidence given by Dr. Samudra
·Chakraborty (PW.1S) will corroborate that Sahanara was
murdered by Yusuf with a sharp-cutting weapon, which may
be a spade and also by suffocation. The accused only had H
94 SUPREME COURT REPORTS (2011) 8 S.C.R.
A the opportunity to assault Sahanara in such a way as he
carried the spade with him at that time and there is no
evidence from any side that except the accused such a
spade was carried at that time by anybody else. Moreover,
the accused himself had admitted in his extra-judicial
s confession before Nurul Islam (PW.11) and Ali Hossain
(PW.13) and others that he murdered Sahanara at the
relevant time when he was resisted by her from committing
rape upon her at the relevant time".
C Ill. Extra-judicial confession came from the mouth of the
witnesses who appeared to be unbiased and not even remotely
inimical to the accused. Undoubtedly, Nurul Islam (PW.11) was
a maternal uncle of the deceased but another witness in this
regard i.e. Habibar Rahaman (PW.3) had no relationship with
the family of the victim. Therefore, his evidence to the extent of
D extra-judicial confession would be legally and validly taken into
consideration. The trial Court basically found the incriminating
circumstance against the appellant as he is absconding and
ultimately it found that there was cogent evidence against the
appellant.
E
7. High Court's findings:
The High Court has accepted the judgment of the trial Court
in toto observing that depositions of the witnesses, particularly,
F Abdul Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained
unshaken to the extent that at the material time they found the
accused near the place of graveyard with spade in his hand.
Another circumstance which swayed with the High Court had
been that just after the incident the appellant ran away. The High
Court has accepted non-examination of some material
G witnesses, particularly, Swapan Murmu, Rejaul and Sirajul,
accepting the explanation furnished by Abdul Majid Mallick
(PW.4) that at the relevant point of leading evidence, none of
these persons was available in that area. The extra-judicial
confession made by the appellant-accused before Nurul Islam
H (PW.11) and Ali Hossain (PW.13) in presence of others has
SK. YUSUF v. STATE OF WEST BENGAL 95
[DR. B.S. CHAUHAN, J.]
also been accepted. Further, the High Court had accepted the A
explanation furnished by the prosecution that in case there has
been some !aches on the part of the Investigating Officer in
sending the spade etc. for chemical analysis, no adverse
presumption can be drawn against the prosecution. The motive
had been found as to the possibility of the accused trying to B
commit sexual assault. All these factors had been found by the
High Court of the conclusive nature as to exclude every other
possibility except the accused being guilty of the offence.
8. The case requires to be examined as to whether the
aforesaid findings are sustainable in the eyes of law. C
LAST SEEN THEORY:
9. The courts below have concluded that there was
sufficient material on record to show that the deceased and the 0
appellant were seen together at the place of occurrence. Abdul
Rashid (PW.5) is alleged to have stated in this regard. The
relevant part of his statement reads as under:
"When I was returning from my field at 9.00 A.M., I saw
Yusuf, appellant, catching fish near the jhinga field adjacent E
to the graveyard. I talked with him there and thereafter
returned home. I did not see anybody else near that place.
At about 10.45 A.M., I heard that the dead body of the
Sahanara Khatun was recovered from the graveyard as
she had been murdered by someone. I went to graveyard F
alongwith others. When the police officer asked me as to
who was the person, I told him that I saw Yusuf, appellant,
catching fish in a nala near the graveyard."(Emphasis
added)
G
10. Another star witness Abdul Majid Mallick (PW.4) stated
"I alongwith Rezwan Ali went to the house of Yusuf,
appellant. We saw atthe time that Yusuf, appellant, was
going to his house with a spade and thala. Yusuf, appellant H
96 SUPREME COURT REPORTS [2011] 8 S.C.R.
A reported to us that he went to catch fish beside the nala.
Rasid and Swapan firmly stated that they saw Yusuf, near
the jhinga field. I again went to the house of Yusuf, and saw
he fled away. Therefore, we could not apprehend Yusuf,
in our village."
B
11. Abdul Majid Mallick (PW.4), a resident of the same
village deposed that alongwith other persons particularly
Rezwan Ali, he went to the house of Yusuf, appellant, and saw
that he was going to his house with a spade and thala and
C Yusuf had told them that he had gone to catch fish beside the
nala. He stated as under:
"I do not know as to why Sahanara Khatun was murdered.
Swapan Mur:mu is not a resident of our village. I cannot say
where he is now residing. Rejowan Ali is an ailing person.
D Sirajul is now residing in Punjab. I saw Yusuf coming to
his house carrying spade and a plate in his hand. I heard
from Rashid and Swapan that they had seen the accused
near the place of occurrence."
E 12. lmdad Ali (PW.1), informant has deposed that Abdul
Rashid (PW.5) and Swapan Murmu (not examined) saw that
Yusuf was talking with the deceased, Sahanara Khatun. Abdul
Rajak (PW.2), father of the deceased had deposed as under:
"I came to know that Yusuf murdered my daughter ... I
F cannot say what was the reason for murder of my
daughter".
13. The persons particulariy Rezwan Ali and Sirajul who
had told these witnesses that they had seen the appellant-
G accused near the jhinga field at the relevant time had not been
examined. More so, it has not been stated by any of the
aforesaid witnesses or persons not examined that Sahanara
Khatun (deceased) was also seen there alongwith Yusuf,
appellant. It has not been deposed by any of the witnesses that
H deceased was seen talking with the appellant at all.
SK. YUSUF v. STATE OF WEST BENGAL 97
[DR. B.S. CHAUHAN, J.]
14. The last seen theory comes into play where the time A
.gap between the point of time when the accused and 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 the author of the crime becomes impossible. (Vide:
Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 B
SCC 449; and State thr. Central Bureau of Investigation v.
Mahender Singh Dahiya, (2011) 3 SCC 109).
15. From the above, it is evident that neither Abdul Majid
Mallick (PW.4) nor Abdul Rashid (PW.5) had stated that either C
of them had seen Sahanara Khatun (deceased) alongwith
Yusuf, near the place of occurrence in close proximity of time.
All the witnesses deposed that appellant alone was seen near
the place of occurrence with spade as he had gone there for
catching the fish. Thus, there is no evidence to the extent that
the deceased. and appellant were seen together at the place D
of occurrence or nearby the same in close proximity of time.
16. While the appellant-accused was examined by the trial
Court under Section 313 of Code of Criminal Procedure, 1973
(hereinafter called as Cr.P.C.), he was asked the question that E
during that time Abdul Rashid (PW.5) and Swapan Murmu (not
examined) had seen him talking with the deceased. The
appellant replied that he was innocent.
17. We fail to understand as no witness had deposed
F
seeing Sahanara Khatun, deceased talking with the appellanU
accused, how such a question could be put to the accused.
EXTRA-JUDICIAL CONFESSION:
18. Nurul Islam (PW.11 ), maternal uncle of the deceased, G
resident of village Rupsona, is not a witness of incident, rather
·deposed that he was the person who chased and apprehended
the appellant after about 7 days of the incident. The relevant
. part of his statement reads as under:
"After 6-7 days, when I went to Shyamsundar Bazar for my H
98 SUPREME COURT REPORTS [2011) 8 S.C.R.
A business, I saw Yusuf on the roof of a bus. He got down
from the bus after seeing me. He told me that he did the.
wrong and begged apology for that and pleaded not to
assault him but take him to Jamalpur Police Station. I took
Yusuf towards Batrish Big ha village by boat and when we
B crossed the river Damodar, Yusuf started running. I chased
him but failed to catch him and then cried for help.
Thereafter, public caught Yusuf at Jamalpur Poolmatha.
When we took him to the village, Yusuf admitted to him
and others that he murdered Sahanara Khatun and,
c thereafter, he asked the persons to take him to Jamalpur
Police Station. Yusuf told them that he attempted to
commit rape upon Sahanara Khatun and when she
resisted, he assaulted her with the spade on her head and
killed her and concealed the dead body in the graveyard".
D (Emphasis added)
In his cross-examination, PW.11 repeated the same about
the confession made by Yusuf, appellant before him in presence
of other persons of the village.
E
19. Ali Hossain (PW.13) is a resident of the village of Nurul
Islam (PW.11) and deposed:
" ...... I went to Shyamsundar Bazar for purchasing goats.
At that time, we see the accused on the roof of a bus. My
F friend Nurul Islam who was with me asked the accused to
come down and he came down from the roof of the bus
and requested us not to assault him and to take him at the
Police Station Jamalpur and thereafter Nurul Islam took the
accused towards Jamapur Police Station."
G
In the cross examination, his deposition is as under:
"I did not state to 1.0. that after crossing the river at
Karalaghat the accused ran towards Jamalpur. I did not
chase the accused by crying - catch, catch. I did not state
H to 1.0. that some persons of Jamalp1Jr caught the accused.
SK. YUSUF v. STATE OF WEST BENGAL 99
[DR. S.S. CHAUHAN, J.]
.... I alone went to Shyamsundar Bazar. Thereafter I A
purchased goats from Shyamsundar Bazar. I cannot say
anything more about the occurrence."
20. By comparison of the statements of Nurul Islam
(PW.11) and Ali Hossain, (PW.13), it is evident that Nurul Islam
8
(PW.11) did not state anywhere in his statement in the court
that at the time of apprehending the accused, Ali Hossian
(PW.13) was also with him. It is only Ali Hossain (PW.13) who
stated that his friend Nurul Islam (PW.11) was .with him. He
further stated that it was Nurul Islam who asked the accused to
come down from the roof of the bus and the accused came C
down. The statement of Nurul Islam (PW.11) is otherwise that
he saw Yusuf, appellant, on the roof of the bus. Yusuf, appellant,
got down from the bus after seeing him and told him that he
did the wrong and begged apology for that. Ali Hossain
(PW.13) did not speak anywhere regarding any confession, D
though stated that the accused requested them nqt to assault,
rather to take him to police station. The material contradictions
are there in respect of the manner in which the appellant had
been apprehended. Ali Hossain (PW.13) did not state that
appellant made an attempt to runaway after making the said E
witness. ,
21. Digambar Mondal (PW.19), the Investigating Officer
has deposed that he had noticed the marks of injury on the
cheek, forehead and he'ad of the deceased. The wearing F
apparels of the victim were not soaked with blood. He only sent
the wearing pant of the victim for chemical examination. He
seized spade but did not sent it for chemical analysis. In his
cross-examination he has stated as under:
"The witness Nurul Islam stated to me that the G
accused was caught by some persons at Jamalpur Pool-
matha and thereafter police came and at that time the
accused stated before those persons and police that he
tried to commit rape Sahanara on 31.8.1998 and when
she resisted the accused hit her with a spade and H
100 SUPREME COURT REPORTS [2011] 8 S.C.R. •
A thereafter hid her body in the court-yard by digging some
earth there''.
(Emphasis added)
22. Both, Nurul Islam (PW.11) and Ali Hossain (PW.13) are
B chance witnesses as they alleged to be in Shyamsundar Bazar
on ,that date for marketing and none of them had regular
business in that bazar. The Court while dealing with a
circumstance of extra-judicial confession must keep in mind that
it is a very weak type of evidence and require appreciation with
C great caution.
Extra-judicial confession must be established to be true
and made voluntarily and in a fit state of mind. The words of
the witness must be clear. unambiguous and clearly convey that
D accused is the perpetrator of the crime. The "extra-judicial
confession can be accepted and can be the basis of a
conviction if it passes the test of credibility". (See: State of
Rajasthan v. Raja Ram, (2003) 8 SCC 180; and Kulvinder
Singh & Anr. v. State of Haryana, (2011) 5 SCC 258).
E 23. Nurul Islam (PW.11) wh_o is maternal uncle of the
~ deceased had deposed about extra-judicial confession made
by the accused in presence of others, though he was not able
to explain who were the other persons as no other person has
been examined in this respect. Digambar Monda! (PW.19) had
F deposed that Nurul Islam (PW.11) had told him about the
confession by the accused in presence of other persons and
police personnel. The accused had told him also that dead
body was buried in the courtyard. Thus, the theory of extra-
judicial confession revealed by Nurul Islam (PW.11) does not
G get corroboration from the statement of Ali Hossain (PW.13)
or any other independent witness or police personnel. Nor the
body of the deceased was recovered from the courtyard. While
considering the material contradictions in the statement of Nurul
Islam (PW.11) and Ali Hossain (PW.13), we do not consider
H that it would be safe to accept his version in this respect.
SK. YUSUF v. STATE OF WEST BENGAL 101
.[DR. B.S. CHAUHAN, J.)
24; Dr. Samudra Chakraborty (PW.18), who conducted A
the autopsy on the body ofSahanara Khatun found the following
injuries:
(i) One incised wound 4" x 0.2" x scalp deep over
middle 3rd of left parietal region (vault of the scalp) B
cutting through the skin, pussa, muscle, vessel and
nerve and being placed 1.2" left on mid-line of the
body;
(ii) Bruises over 1" x 0.6" x over left side of forehead
and being placed 0.5" left of mid~line of the body; C
(iii) One lacerated wound 0.6" x 0.4" muscle and bone
deep over left molar region with extra-vesation of
blood and blood-clot in around the wound;
(iv) . Haema toma (red) 3.2" x 1.5" in area over left D
temporal parietal region; .. · ·
(v) Subdural haemorrhage of both sides of tempero
parietal region of the brain.
E
In the opinion of the doctor, death was due to combine
effect of injuries and suffocation. The incised wound could be
caused by a hit of sharp edge of the spade. The haema toma
on the victim could be caused by a hit of heavy blunt weapon.
This witness did not speak of any sign of sexual assault on the F
deceased before or after her death.
ABSCONDANCE:
25. Both the courts below have considered the
circumstance of abscondance of the appellant as a G
circumstance on the basis of which an adverse inference could
be drawn against him. It is a settled legal proposition that in
case a person is absconding after commission of offence of
. which he may ·not even be the author, such a circumstance
alone may not be enough to draw an adverse inference against H
102 SUPREME COURT REPORTS [2011) 8 S.C.R.
A. him as it would go against the doctrine of innocence. It is quite
possible that he may be running away merely being suspected,
out of fear of police arrest and harassment. (Vide: Matru @
Girish Chandra v. The State of U.P., AIR 1971 SC 1050;
Paramjeet Singh@ Pamma v. State of Uttarakhand AIR 2011
B SC 200; and Rabindra Kumar Pal @ Dara Singh v. Republic
of India, (2011) 2 SCC 490)
Thus, in view of the law referred to hereinabove, mere
abscondance of the appellant cannot be taken as a
circumstance which give rise to draw an adverse inference
C against him.
26. CIRCUMSTANTIAL EVIDENCE:
Undoubtedly, conviction can be based solely on ·
0 circumstantial evidence. However, the court must bear in mind
while deciding the case involving the commission of serious
offence based on circumstantial evidence that the prosecution
case must stand or fall on its own leps and cannot derive any
strength from the weakness of the defence case. The
E circumstances from which the conclusion of guilt is to be drawn
should be fully established. The facts so established should be
consistent only with the hypothesis of the guilt of the accused
and they should not be explainable on any other hypothesis
except that the accused is guilty. The circumstances should be
of a conclusive nature and tendency. There must be a chain of
F evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused
and must show that in all human probability the act must have
been done by the accused. (Vide: Sharad Birdhichand Sarda
v. State of Maharashtra, AIR 1984 SC 1622, Krishnan v. State
G represented by Inspector of Police, (2008) 15 SCC 430; and
Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306).
27. No presumption could be drawn on the issue of last
seen together merely on the fact that Abdul Rajak (PW.2), father
H of the deceased had stated that Sahanara Khatun had gone
SK. YUSUF v. STATE OF WEST BENGAL 103
. [DR. B.S. CHAUHAN, J.]
to pluck the jhinga and her dead body was recovered from A
· there. The witnesses merely stated that the accused was
present in the close proximity of that area. That does not itself
establish the last seen theory because none of the witnesses
said that the accused and deceased were seen together. Most
of the witnesses had deposed that the accused was having B
spade. It may connect the appellant to the factum of digging
the earth. A person going for catching fish normally does not
take a spade with him.
The nature of the admissibility of the facts discovered
pursuant to the statement of the accused under Section .27 of C
Indian Evidence Act, 1872 is very limited. If an accused
deposes to the police officer the fact as a result of which the
weapon with which the crime is committed is di~covered, and
as a result of such disclosure, recovery of the weapon is made,
no inference can be drawn against the accused, if the~e is no D
evidence connecting the weapon with the ~ime alleged to have
been committed by the accused.·
Be that as it may, the spade had not been sent for
chemical analysis as admitted by Digambar Mondal (PW.19), E
1.0. himself and there was no explanation furnished as for what
reason it was not sent. In case of circumstantial evidence, not
sending the weapon used in crime for chemical analysis is fatal
for the reason that the circumstantial evidence may not lead to
the only irresistible conclusion that the appellant was the F
perpetrator of the crime and none else and that in the absence
of any report of Serologist as to the presence of human blood
on the weapon may make the conviction of the accused
unsustainable. (Vide: Akhilesh Hajam v. State of Bihar (1995)
Supp 3 sec 357).
G
There is no medical evidence or suggestion by any person
as to the sexual assault on the deceased. Therefore, it merely
remained the guesswork of the people at large. Mere
imagination that such thing might have happened is not enough
to record conviction. H
104 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 28. This incident.had occurred in a broad day light at 9.30
a.m. in the month of August in the agricultural field surrounded
by agricultural field of others. Therefore, the presence of a large
number of persons in the close vicinity of the place of
occurrence can be presumed and it is apparent also from the
B statement of Aliful Rahmal (PW.6). Thus, had the deceased
been with the appellant, somebody could have seen her at the
place of occurrence. It cannot be a positive evidence as
concluded by the courts below that none other than the appellant
could commit her murder because no one else had been there
c at the place of occurrence. In fact, nobody had ever seen the
deceased at the place of occurrence. Digging the earth by a
single person to the extent that a dead body be covered by
earth requires a considerable time and there was a possibility
that during such period somebody could have seen the person
indulged in any of these activities, though no evidence is there
0
to that extent. The circumstances from which the conclusion of
guilt is to be drawn in such a case should be fully established.
The circumstances concerned "must or should" and "not and
may be" established. In the instant case, the circumstances
have not been established.
E
29. In view of the above, we are of the considered opinion
that the courts below convicted the appellant on a mere
superfluous approach without in depth analysis of the relevant
facts.
F
30. In the facts and circumstances of the case, the appeal
succeeds and is allowed. The appellant is given benefit of doubt
and acquitted of the charges of offences punishable under
Sections 302 and 201 IPC. Appellant is in jail. He be released
G forthwith unless his detention is required in any other case.
N.J. Appeal allowed.
..
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