MOHD. AZAD @ SAMIN v. STATE OF WEST BENGAL

and the deceased together and presence of the accused A at the scene of occurrence and about recovery from the accused. Trial court convicted the accused u/s. 302 and 201 r/w. s. 34 IPC. High Court confirmed the conviction. Hence the present appeals. Dismissing the appeals, the Court B HELD: 1.1. If the factual scenario is considered in the background of principles relating to circumstantial evidence and extra judicial confession, the appeals are without merit. According to the prosecution version on c the night of 6.2.1994, the appellants and the deceased purchased wine from a shop nearby and thereafter they entered into the cemetery not from the usual gate but after scaling the wall. The identification of the accused by the workers af the cemetery has also been established by cogent evidence. In the Test Identification Parade, some of the workers identified appellant 'N' as the man who went to fetch water. Therefore, the prosecution version in that regard is cogent. The salesman of the wine shop (PW-18) spoke about appellant 'N'. PW-10 one of the workers spoke about the demand by one of the accused E persons for water. To the similar effect is the evidence of PW-12 who spoke about the supply of drinking water. The doctor categorically stated that the stomach contained 10 gms of fluid with strong smell of alcohol. [Paras 6, 7 and 23] [478-E-H; 479-A-C; 487-E, F] D F

1.2. The doctor PW-29 in his opinion before the Investigating Officer on 9.3.1996 affirmed his view that death might have taken place 4/5 days prior to the post mortem examination of the dead body. From the First Information Report as well as the statement of Secretary G of the cemetery who lodged the FIR it is clear that neither he nor any of the staff of the cemetery had noticed the dead body but only a child found a dead body and informed one of the staff of the cemetery who in turn informed the informant. It is on record that the child was H 1 ~ I ..l. );" 470 SUPREME COURT REPORTS [2008] 15 S.C.R. A in the cemetery for the purpose of flying kite and for playing in the open field and that is how he was moving hither and thither and noticed the dead body was lying in a corner which was a long area. That being so, the plea that the body could have been unnoticed by the B appellants is unacceptable. [Para 5] [477-G, H; 478-A, B]

1.3. The date of occurrence was in the early part of February and the dead body was discovered with full wearing apparels including winter garments, shoes and so.cks. The dead body was lying in half dug manner and C a cement slab was placed on the face of the dead body. According to the High Court, that being the situation, the dead body was not exposed to sun and wind and the chance of receiving dews throughout the whole night and upto certain parts of the morning cannot be ruled out. D Therefore, the view of the doctor about the date of death being on or around 6.2.1994 is not rendered doubtful. [Para 5] [478-B-D]

1.4. Regarding recording of confessional statement E Judicial Magistrate, has categorically stated that the requirement of Section 164 (2) Cr.P.C. was strictly followed. He has categorically stated that the confessional statement was given voluntarily and it was recorded after observing all statutory formalities. [Para 8] [479-C, D] F

2.1. Where a case rests squarely on circumstantial evidence, the 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 G the guilt of any other person. 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 circumstantial eVidence. They are the circumstances from which the conclusion of guilt is to be H drawn should be fully established. The circumstances r ~ . .,._ -!{ ~ ~ -, , ~ MOHD. AZAD @ SAMIN v. STATE OF WEST BENGAL 471 concerned 'must' or 'should' and not 'may be' established; the A facts so established should be consistent only 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; the circumstances should be of a conclusive nature and tendency; they B should exclude every possible hypothesis except the one to be proved; andthere 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 c act must have been done by the accused. [Paras 9, 14 and 16] [479-E; 481-F; 482-E-H; 483-A] D Hukam Singh v. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. v. State of Hyderabad AIR 1956 SC 316; Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State of UP. v. Sukhbasi and Ors. AIR 1985 SC 1224; Ba/winder Singh v. State of Punjab AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of o/f.P. AIR 1989 SC 1890; Bhagat Ram v. State of Punjab AIR 1954 SC 621; C. Chenga Reddy and Ors. v. State of A.P. 1996 (10) SCC 193; Pada/a Veera Reddy E v. State of A.P. and Ors. AIR 1990 SC 79; State of UP. v. Ashok Kumar Srivastava (1992) Crl.LJ 1104; Hanumant Govind Nargundkar and Anr. v. State of Madhya PradeshrAIR 1952 SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Raja F Ram 2003 (8) SCC 180; State of Haryana v. Jagbir Singh and Anr. 2003 (11) SCC 261 and Kusuma Ankama Rao v. State of A.P. 2008 (10) SCR 89, relied on. "Wills' Circumstantial Evidence" (Chapter VI) by Sir Alfred Wills, referred to. G "

2.2. 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 H 472 SUPREME COURT REPORTS [2008] 15 S.C.R. A person other than the accused being the author of the crime becomes impossible. [Para 18] [483-D]