Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. Before analyzing factual aspects it may be stated that G for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal :.~… A fact or factum probandum may be proved indirectly by means )._ of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of vari- ous other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally in- ferred or presumed.
3. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the c inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); D Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State …. of UP \f. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder .. I Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of MP (AIR 1989 SC 1890). The circum- stances from which an inference as to the guilt of the accused E is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from cir- 'r F cumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
4. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of AP (1996) 10 G sec 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law .-.~ is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances ·t should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence …. ".
5. In Pada/a Veera Reddy v. State of A.P and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstan- tial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; c (2) those circumstances should 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 0 conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
6. In State of UP v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evalu- ating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the · circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so estab- lished must be consistent only with the hypothesis of guilt.
7. Sir Alfred Wills in his admirable book "Wills' Circum- stantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: A (1) the facts alleged as the basis of any legal inference must be clearly proved ?ind be'yond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstan- B tial evidence the best evidence must be adduced which the na- ture of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the inno- cence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) ifthere be c any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
8. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumsta.ntial evidence laid down by D the this Court as far back as in 1952.
9. In Hanumant Govind Nargundkar and Anr. \/. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed ·thus: "It is well to remember that in cases where the evidence is of a circumstantiaj .nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instan~e be fully established and all the facts so established should.be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and th'ey should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as notto leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human prob'ability the act must have been done by the accused."
10. A reference may be. made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). H Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circum- stantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt 8 . ..- is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only c with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; ( 4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a c,hain of evidence so compete as not to leave any re~sonable 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.
11. Coming to the factual scenario it is to be noted that as rightly contented by learned counsel for the appellant, that PW 4 did not say that he had seen the appellant and the deceased on any particular date. He had merely stated that he had seen them on a Tuesday. The trial court and the High Court without anything further came to hold that he meant 19.4.1988, because he stated that he saw them on Tuesday. Similarly PW 9 has G stated that he did not know as to which of the accused i.e. whether A 1 or A2 came with the deceased. Interestingly he stated that only after an enquiry by the inspector, he came to know the name of the appellant. He has also stated that on a Tuesday night he had seen him. , He does not speak of ar/ly A date. He also admitted in cross examination that he does not .l"- remember who comes for taking drinks as several persons were coming for taking drinks. It was not explained as to how he remembered at the time of his examination in Court which was after about 2 % years of the alleged date of occurrence to have B seen accused and the deceased together. So far as the PW 8 is concerned he had identified A2 for the first time in Court. In his cross examination he accepted that he saw the appellant '1 for the first time after the day on which he had seen him. Before that he did not see A2 and he did not give any identification c mark of A2 to police.
12. He has further admitted that after pointing out the appel- lant, the police enquired as to whether he had seen the person.
13. So far as the last seen aspect is concerned it is nec- D essary to take note of two decisions of this court. In State of U.P. v. Satish [2005(3) sec 114) it was noted as follows: "22. The last seen theory comes into play where the time- gap between the point of time when the accused and the 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 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
14. In Ramreddy Rajesh Khanna Reddy v. State of A.P [2006(10 sec 172] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the A accused and the deceased were last seen alive and 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. Even in such a case the courts should look for some corroboration. 28. In State of UP v. Salish [ 2005(3)SCC 114] this Court observed: (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time- gap between the point of time when the accused and the c 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 in some cases to positively establish that the deceased was last seen 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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." (See also Bodhraj v. State of J&K (2002(8) SCC 45).)"
15. A similar view was also taken in Jaswant Gir v. State of F Punjab [2005(12) sec 438].
16. Above being the position, the inevitable conclusion is that the trial court and the High Court were not justified in direct- ing conviction of the appellant. He is acquitted of the charges. The bail bonds executed pursuant to the order granting bail shall stand discharged.
17. The appeal is allowed. D.G. Appeal allowed.