2004 INSC 0992
                                    SUPREME COURT OF INDIA

                                             State of Rajasthan

                                                      Vs.

                                                    Khuma

                                          Crl.A.No.559-560 1999

                                 (Arijit Pasayat and C. K. Thakker JJ.)

                                                 08.09.2004

                                                JUDGMENT

Arijit Pasayat, J.

1. Heard learned counsel for the appellant-State. There is no appearance on behalf of the
respondent-accused.

2. Respondent faced trial for alleged commission of offence punishable under Section 302 of
the Indian Penal Code, 1860 (in short 'I.P.C.'). Though found guilty by the Trial Court, he
was acquitted by the High Court.

3. We have gone through the judgments of the High Court and the Trial Court. The Trial
Court relied upon three circumstances to find the respondent guilty. They were: (1) he was
last seen with the deceased persons. (2) he was found to be in possession of the 'Kadiyas'
when he was arrested and (3) the recovery of blood stained articles on being pointed out by
him. The accused was awarded death sentence. He filed one appeal from jail and one through
counsel. A reference was made by the Trial Court for confirmation of the death sentence.
The High Court analysed the evidence and found the accused innocent and directed his
acquittal.

4. Learned counsel for the appellant-State submitted that the circumstances highlighted by
the prosecution were sufficient for finding the accused guilty. The Trial Court had rightly
found the accused guilty but the High Court reversed it by discarding the circumstances, as
not sufficient for the purpose of holding the accused guilty.

5. The law relating to circumstantial evidence has been laid down by this Court in several
cases. It has been laid down that the circumstances should be of such conclusive nature as to
exclude every other possibility except the accused being guilty of the charged offence.
Circumstances which attracted notice of the High Court were that accused was last seen in
the company of the deceased. It was based on the evidence of P.Ws. 7, 8 and 30. PW-7 was
of very weak eye-sight and even, according to her own statement, she could not identify a

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person even if he or she passes nearby. The hypothetical "last seen theory" was pressed into
service by the Trial Court by observing that the accused and PW-7 being of the same village,
she could have identified him from his speech. No witness stated that the accused had spoken
even a word when he was allegedly seen near the deceased. PW-8 only stated that she had
seen the deceased and PW-7 together. He did not speak about accused being present nearby.
PW-30's evidence is no better. That being so, the last seen theory could not have been
pressed into service. The other circumstance was the alleged recovery of the incriminating
materials. The High Court found it absolutely improbable that the accused who was allegedly
absconding, would carry the incriminating materials and go near the police and present
himself so that he could be arrested with the incriminating materials. Third circumstances
was the recovery of blood stained articles. This was also discarded by the High Court as the
place of occurrence was easily accessable and seized articles were not established to be
carrying human blood.

6. Above being the position, the tests required to convict a person based on circumstantial
evidence were not available in the present case. The circumstances were not conclusive in
nature. The facts established are not consistent only with the hypothesis of guilt and in-
consistent with the innocence of guilt and it has no moral certainty to exclude the possibility
of guilt by any person other than the accused.

7. Above being the position, the High Court's well reasoned judgment does not warrant
interference. The appeals are, accordingly, dismissed.

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