Holding

The Supreme Court affirmed the High Court's acquittal, holding that the circumstantial evidence was insufficient to exclude reasonable doubt and therefore could not sustain the conviction.

Summary

The State of Uttar Pradesh appealed the acquittal of Shyam Behari and another accused who had been convicted by a trial court under IPC sections 302/34 and 201/34 on the basis of circumstantial evidence. The High Court set aside the conviction, holding that the evidence regarding the accused being the last person seen with the deceased and the recovery of the dead body was not proved with cogent evidence and that key witnesses were unreliable. The Supreme Court examined the adequacy of the circumstantial evidence, applying the established three‑test framework for such evidence. It found that the prosecution failed to establish a complete chain of circumstances that excluded any reasonable hypothesis of innocence. Consequently, the Court held that the High Court's judgment was free of defect and dismissed the State's appeal, leaving the acquittal undisturbed.

Issues considered

Whether the circumstantial evidence presented satisfies the three tests required to sustain a conviction under Indian law.
Whether the 'last seen' theory, in the absence of direct evidence, can be relied upon to infer the guilt of the accused.
Whether the recovery of the dead body and alleged weapon constitutes cogent evidence linking the accused to the crime.
Whether the testimony of key witnesses is reliable enough to support a conviction.

Legislation cited

Indian Penal Code, 1860s. 201, s. 302, s. 34

Subjects

circumstantial evidencelast seen theoryacquittalconvictionIndian Penal Codesection 302section 201section 34witness reliabilityburden of proof

Judgment

[2009) 6 S.C.R. 4
-{
A STATE OF UTTAR PRADESH
v.
SHYAM BEHARI & ANR.
(Criminal Appeal No. 501 of 2004)
MARCH 31, 2009
B
[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]

IND/AN PENAL CODE, 1860:
c
ss. 302134 and 201134 - Accused convicted by trial court
on circumstantial evidence - Acquittal by High Court holding
that the facts with regard to accused last seen with deceased
and recovery of dead body not proved - Witness also found ..
not reliable. - Held: Judgment of High Court does not suffer
D
from any deficiency to warrant interference - Circumstantial
evidence ·- Tests to be satisfied - Explained.

The respondents were convicted and sentenced by
the trial court u/ss 302/34 and 201/34 IPC mainly on the
~E circumstantial evidence adduced to establish that the
accused was last seen with the deceased and recovery
of the body of the deceased was made at the instance of
one of the accused. The High Court having acquitted the
"
accused, the State filed the appeal.
F
Dismissing the appeal, the Court

HELD: 1.1. The circumstantial evidence, in order to
sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
G of the accused. The circumstantial evidence should not ~

only be consistent with the guilt of the accused but
should also be inconsistent with his innocence. [Para 4]
(6-F-H]

H 4
STATE OF UTTAR PRADESH v. SHYAM BEHARI & 5
ANR.

~- Bodh Raj@ Bodha & Ors. v. State of J&K 2002 (2) Suppl. A
SCR 67=2002 (8) sec 45 and Gambhir v. State of
Maharashtra AIR 1982 SC 1157, relied on.
1.2. In the instant case, the High Court found that the
circumstances as regards the accuse being last seen with
8
the deceased and recovery of dead body have not been
-,i., . established by cogent evidence. So far as the alleged last
seen theory is concerned, the High Court found that the
evidence in this regard does not by iii;elf necessarily lead
to the inference that it was the accus~d who committed
the crime. The High Court also found that the evidence C
of PW4 does not inspire confidence. So far as the alleged
recovery of weapon was concerned, PW-12 who
interrogated the accused, did not record his disclosure
statement. In the circumstances, the judgment of the High
"' Court does not suffer from any deficiency to warrant D
interference. [Para 5, 7 and 8) [8-C-D, 9-B-E]

Case Law Reference:
AIR 1982 SC 1157 relied on Para 4
E
2002 (2) Suppt SCR 67 relied on Para 7

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 501 of 2004.

From the Judgment & Order dated 24. 10.2003 of the High F
Court of Judicature at Allal)abad in Criminal Appeal No. 1145
of 1981.

Chandra Prakash Pandey for the Appellants.

The Judgment of the Court was delivered by G

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the order of acquittal recorded by a Division Bench of the
Allahabad High Court. The respondents faced trial for alleged
H
6 SUPREME COURT REPORTS [2009) 6 S.C.R.
-t
A commission of offence punishable under Section 302 read with
Section 34 and 201 read with Section 34 of the Indian Penal
Code, 1860 (in short 'IPC'). Learned IVth Additional District and
Sessions Judge, Kanpur found the respondents guilty and
sentenced them to undergo imprisonment for life and two years
...
B rigorous imprisonment respectively for the aforesaid two
offences. In appeal, the High Court reversed the judgment of
conviction and directed acquittal.

2. In support of the appeal learned counsel for the
appellant-State submitted that the circumstances which were
c highlighted by the trial court to record conviction have been
without any basis reversed by the High Court. Learned counsel
for the respondent supported the judgment of acquittal.

3. The prosecution version rested on circumstantial
D evidence. The law regarding circumstantial evidence is well ....
settled. When a case rests upon the circumstantial evidence,
such evidence must satisfy three tests: (1) the circumstances
from which an inference of guilt is sought to be drawn must be
cogently and firmly established: (2) those circumstances should
E be of a definite tendency unerringly pointing towards guilt of
the accused; (3) the circumstances, taken cumulatively, should_
form a chain so complete that there is no escape from the
conclusion that within all human probabilities the crime was \o

committed by the accused and none else.
F 4. The circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of
any order hypothesis than that of the guilt of the accused. The
circumstantial evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
G innocence. (See v. State of Maharashtra, AIR 1982 SC, 1157)

In his case, the prosecution relied on following
circumstances:
(1) The deceased Veer Singh Gautam was posted as
H
STATE OF UTIAR PRADESH v. SHYAM BEHARI & 7
ANR. [DR. ARIJIT PASAYAT, J.]
Supervisor of Kray Vikray Samiti, Reona at the time of A -
occurrence and the accused Udai Narain was Adhyaksha/
Supervisor of that Society.

(2) Veer Singh Gautam was on friendly terms with accused
Udai Narain and Shyam Behari and was doing grain B
business in .their partnership, ·

(3) The deceased Veer Singh Gautam went to his house
on the occasion of Raksha Bandhan (3.8.1979) and
brought Rs. 25,000/- for investing in the aforesaid
business. C

(4) Accused Shyam Behari and . Udai Narain had gone to
the house of deceased in village Hardauli and deceased
Veer Singh Gautam asked them to render account of levy
and asked them to either give money in cash or grain to 0
make up the account.
(5) Veer Singh Gautam after returning from his house left
Reona for Daheli.
(6) Veer Singh Gautam left Rathgaaon on 13.8.1979 on a E __
truck going towards Nauranga and got down from that truck
when he reached near the culvert of village Daheli.
(7) The deceased was seen going iun the company of
accused Shyam Behari and Udai Narain towards their F
house on the outskirts of village Daheli.
(8) (Deceased) Veer Singh Gautam was last seen at about
10.30 P.M. on 13.8.1979 in the company of all the four
accused at the door of the house .of accused Shyam
Behari and Udai Narain and that all of them including the G
accused went up stairs.
(9) Shrieks were heard in the night rom the upper story of
the house of accused Udai Narain and Shyam Behari.
H
8 SUPREME COURT REPORTS [2009] 6 S.C.R.

A (10) All the four accused were seen moving towards
village Daheli at about 2 1.m. in the night of 13/14-8-1979
and accused Munni Lal was carrying a gunny bag on his
head and in enquiry by Ram Asrey (PW3) he told that they
were carrying manure for their field.
B (11) The recovery of the dead body of (deceased) Veer
Singh Gautam was made on 23.8.1979 on the pointing out
of appellant Shyam Behari.

5. The trial court held that the circumstances 1,3,8 and 11
C were proved and presented a complete chain of circumstances
which established the guilt of the accused. The High Court
found that circumstances 8 and 11 have not been established
by cogent evidence. So far as .the alleged last scene is
concerned, the High Court found that the circumstances of last ,
o ,scene together do not by itself necessarily lead to the inference
· that it was the accused who committed the crime. There must .,,
~e something more establishing connectivity between the
~ccused and the crime. There must be cases where on account
of close proximity of place and time between the event of
E accused having been last seen with the accused and the factum
of death a rational 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. ""
F 6. This Court in Bodhraj @ Bodha and others v. State of
Jammu and Kashmir, 2002 (8) SCC 45 held as follows:

"The last. seen theory comes into play where the
time-gap between the point of time when the accused and
G the deceased were last seen alive and when the
deceased is found dead is so small that possibility of any
person other than the accused being the--author of the
crime becomes impossible. It would be difficult to some
cases, to positively establish that the deceased was last
H seen with the accused when there is a long gap and
STATE OF UTIAR PRADESH v. SHYAM BEHARI & 9
ANR. [DR. ARIJIT PASAYAT, J.]
possibility of other person coming in between exists. in the A
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"
7. The High Court in the instant case found that evidence B
of PW4 does not inspire confidence. If he knew around 10 A.M.
that no fertiliser was available, there was no reason as to why
he would remain at Moosa Nagar up to 9·10 A.M. Additionally,
if found that there'was no probable occasion for the witness to
go to Moosa Nagar for several days when he knew· that C
fertiliser was either not available or he had purchased fertiliser
from the dealer at Rathgaon. So far as the alleged recovery of
weapon is concerned, the High Court noted that PW12 who
Interrogated accused had not recorded. his disclosure
· · statement. PW7 who-is supposed to have accompanied 1:0_, D
~ and the accused was found to be not believeable. ·
' ;' 8. Above being the situation, the impugned'judgment of the
High Court does not suffer from any deficiency'. to' Warrant
. Interference. The appeal is dismissed. The bailable warrants E
executed pursuant to order dated 19A.2004 stand discharged.3
. • • . r~ ~, .~:t• }..:; ·.JLJ

G.N. • • •1 ·.., .:.; '· ; 11.:: 'Appeal ~ismissed.
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