Padman Bibhar vs State Of Odisha

2025 INSC 751 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. __________ OF 2025 (Arising out of SLP(Crl.) No. 17440 OF 2024)

PADMAN BIBHAR …. APPELLANT

VERSUS

STATE OF ODISHA .... RESPONDENT

JUDGMENT

PRASHANT KUMAR MISHRA, J.

Leave granted.

2. This appeal by special leave is directed against the

impugned judgment and order dated 15.04.2024 passed by the Signature Not Verified

High Court of Orissa at Cuttack in Criminal Appeal No. 358 of Digitally signed by SAPNA BISHT Date: 2025.05.21 17:05:16 IST Reason:

2019, whereby the High Court has affirmed the conviction and 2

sentence imposed by the Trial Court convicting the appellant for

committing the offences under Sections 302 and 201 of Indian

Penal Code, 18601 and sentenced him to undergo imprisonment

for life and to pay a fine of Rs 10,000/- and imprisonment for

two years and to pay a fine of Rs. 5,000/- respectively for each

of the offence.

THE PROSECUTION CASE:

3. The prosecution case, in brief, is that at about 11 a.m. on

04.04.2016, informant’s son Akash Garadia2 along with

Budhadeba Garadia(PW-1) and Susanta Kusulia(PW-2) and the

appellant/accused had been to the river nearby the village to

take bath. From there, the appellant/accused and the deceased

went to cashew field for collecting the cashew. The

appellant/accused and the deceased did not return for long time,

however, PW-1 and PW-2 returned to the village. The

informant/Kalia Garadia(PW-3) inquired about the whereabouts

of his son from PW-1 and PW-2 who informed him that they

asked the appellant/accused about the deceased to which he

1 ‘IPC’ 2 ‘deceased’ 3

replied that the deceased will never return and if they disclose

this fact to the co-villagers, he will kill them. Thereafter, PW-3

inquired from the appellant/accused about his son but he

expressed his ignorance and told that he had not seen the

deceased. Then PW-3 along with his co-villagers went to the

riverside in search of the deceased but they could not find him.

On the next day, i.e. 05.04.2016, about 06.00 a.m. again PW-3

went to the riverside in search of his son and found his dead

body floating in the river. PW-3 lodged FIR (Exhibit-1) alleging

that the appellant/accused has killed his son and threw his dead

body in the river.

CHARGES AND EVIDENCE:

4. On the basis of the above information, IIC of Muniguda

Police Sation registered P.S. Case No. 37 of 2016 under Sections

302 and 201 IPC and directed the Investigating Officer-

Lakshman Majhi3 to take up the investigation which was duly

completed and a chargesheet was filed against the

appellant/accused of offences under Sections 302 and 201 IPC.

The charges were framed and the appellant/accused pleaded not

3 ‘PW-19’ 4

guilty and claimed false implication. The prosecution, in order to

bring home the charges examined 19 prosecution witnesses and

proved 10 documents and marked one M.O (blood stained

stone).

5. Out of 19 prosecution witnesses examined before the Trial

Court, PW-1, PW-2 are independent witnesses who accompanied

the deceased to river for taking bath; PW-3 is the informant and

father of the deceased; PWs-4,6,7,8,12 & 13 are co-villagers;

PW-5 is the scribe; PWs-9,10 & 11 are relatives; PW-14 is the

wife of the appellant/accused and cousin sister of the deceased;

PW-15 is the daughter of the informant; PW-16 is the wife of the

informant and mother of the deceased; PW-17 is the doctor, who

conducted autopsy; PW-18 is the police constable and PW-19 is

the I.O. The appellant did not examine any witness. In his

examination under Section 313 Cr.P.C, he took plea that a false

case had been foisted against him.

6. On the basis of evidence adduced by the prosecution, the

Trial Court held the appellant/accused guilty for both the charges

and convicted and sentenced him as stated supra and the same

has been affirmed by the High Court.

5

7. The Trial Court found that the evidence on ‘last seen

together’ and recovery of weapon together with motive are the

circumstances which complete the chain of circumstantial

evidence and are sufficient to hold the appellant/accused guilty

for commission of murder and causing disappearance of

evidence. The conviction and sentence imposed by the Trial

Court has been affirmed by the High Court under the impugned

judgment.

SUBMISSIONS:

8. Mr. Shyam Manohar, learned counsel appearing for the

appellant/accused would submit that there is no direct evidence

against the appellant/accused and the chain of circumstantial

evidence is incomplete, not connecting him to the crime,

therefore, he has wrongly been convicted. He would submit that

all the relevant circumstances have not been put to the

appellant/accused in his examination under Section 313 Cr.P.C.

It is also stated that there is a delay of 20 hours in lodging the

FIR and the evidence of Chemical Examiner is inconclusive. It is

also pointed out that there is discrepancy/contradiction about

the place where the dead body was recovered inasmuch as at 6

one place it is said to be recovered from a bathing place whereas

at a different stage I.O has stated that the dead body was found

at the cashew jungle. It is also argued that there is no motive

for commission of crime.

9. Per contra, Mr. Shovan Mishra, learned counsel for the State

submitted that the Trial Court and the High Court as well, after

careful examination of the evidence, rightly came to the

conclusion that the evidence of ‘last seen together’ has been duly

proved which along with other incriminating circumstances is

sufficient to convict the appellant/accused.

ANALYSIS:

10. It is settled law that in a case based on circumstantial

evidence, the prosecution is obliged to prove each circumstance,

taken cumulatively to form a chain so complete that there is no

escape from the conclusion that within all human probabilities,

crime was committed by the accused and none else. Further, the

facts so proved should unerringly point towards the guilt of the

accused.

7

11. This Court in Ramanand vs. State of Himachal Pradesh4

has held that ‘perfect proof is seldom to be had in this imperfect

world and absolute certainty is a myth’.

12. This Court in a celebrated judgment in Sharad

Birdhichand Sarda vs. State of Maharashtra5 has set down

the golden rules in the cases basing circumstantial evidence

which is to be proved by the prosecution.

(i.) That chain of evidence is complete;

(ii) Circumstances relied upon by prosecution should be conclusive in nature;

(iii) Fact established should be consistent only with the hypothesis of the guilt of accused;

(iv) Circumstances relied upon should only be consistent with the guilt of the accused;

(v) Circumstances relied upon should exclude every possible hypothesis except the one to be proved.

13. We shall now examine the evidence on record vis-a-vis

‘last seen theory’. PW-1 and PW-2 deposed in their testimony

that they went together with the deceased to take bath and the

appellant/accused joined subsequently and asked the deceased

to join for collection of cashew nuts. When the deceased and the

4 (1981) 1 SCC 511 5 (1984) 4 SCC 116 8

appellant/accused did not return, they came back. PW-1 stated

that when they asked the appellant/accused regarding the

deceased he kept quiet. PW-1 stated that when they went, no

other villager was taking bath. PW-2 states that when he asked

the appellant/accused about the deceased, he stated that the

deceased returned before him and advised him not to inform

anyone that they both had gone to eat cashew. PW-2 also stated

that when they went, other villagers were also taking baths. PW-

1 stated that initially he, PW-2 and the deceased proceeded to

the river for bath and the appellant/accused came subsequently

and that bathing ghat is a common bathing place for the

villagers. It is reflected from his evidence that they went to take

bath at around 10/11 a.m. in the morning and returned in the

evening. However, the appellant was not present in his house,

and he had no discussion with the appellant in the evening. He

says that he apprehended that it was the appellant who killed

Akash. If we read the deposition of PW-2 carefully, he stated that

he and PW-1 returned home after taking bath but the appellant

did not come back and in the evening he asked the appellant

about the whereabouts of the deceased to which he replied that

the deceased came back before his return and advised him not 9

to inform anyone that they both had gone to eat cashew. He also

states that when inquiries were made from the appellant he kept

quiet. He, PW-1 and the appellant were confined at a nearby

place and after the dead body was found on the next morning

they were taken to the police station. The police asked him and

PW-1 to return back to home but detained the appellant. He says

that the deceased and the appellant were not close friends but

acquainted with each other. He was not aware of any

disagreement between the deceased and the appellant.

According to this witness, the appellant was not present near the

bathing ghat by the time they arrived.

14. PW-3 is the father of the deceased and the informant. He

says that when the appellant was confined, he did not admit for

which he was handed over to the police. According to this

witness, when the deceased did not return, he inquired from PW-

1 and PW-2 who stated that they had gone to collect cashew

nuts after the appellant/accused suggested that its price has

gone upto Rs. 1540/- per kg. He inquired from the

appellant/accused at around 03.00 p.m. and that during search 10

in the evening all three i.e. the appellant, PW-1 and PW-2

accompanied during such search.

15. From the above evidence of PW-1, PW-2 and PW-3 it

emerges that when they were taking bath, other villagers were

there on the bathing ghat, and that the appellant and the

deceased had gone to collect the cashew nuts. However, when

the appellant was inquired about the whereabouts of the

deceased and he was confronted, he did not admit the guilt

rather accompanied PW-3 in search of the deceased near the

river and cashew jungle. This conduct of the appellant suggests

that he did not run away from the village nor admitted his guilt

as probably he had nothing to hide.

16. True it is that in the autopsy report, PW-17 found that the

death is homicidal, due to fracture skull causing massive

haemorrhage, but the issue is whether there is sufficient

conclusive evidence to establish that the appellant has

committed the murder.

17. PW-13(Mahadev Sikaka) is also a witness of ‘last seen

together’. He saw the appellant and deceased going towards

village Madhapadar at around 12 noon and after some time he 11

saw the appellant returning alone and then asked him about the

deceased to which he did not reply and after asking for three to

four times, he replied that he had gone nearby village for some

work and thereafter the appellant hurriedly took his bath and

went away. According to this witness, the appellant’s wife (Sanju

Bihar) is cousin of the deceased. After marriage, the appellant

had gone to Kerala and did not return. When his wife fell ill and

was taken to the hospital by her relatives, the appellant returned

from Kerala and suspected his wife’s illicit relations with a co-

villager and due to anger, he had killed Akash. However, in cross-

examination, he admits that the police had not recorded his

statement under Section 161 Cr.P.C. Therefore, this fact about

motive is narrated by him for the first time in court hence the

same cannot be relied upon. Interestingly, PW-3 father of the

deceased has not stated anything about the motive in his

examination-in-chief. According to PW-3, the appellant is his

nephew being son of his brother-in-law. Thus, the appellant and

PW-3 are close relative.

18. However, the crucial question is whether the evidence of

last seen together is sufficient enough to convict the appellant. 12

The stone allegedly used for committing murder was recovered

near the dead body but the same is not in consequence of any

memorandum statement of the appellant. As a matter of fact,

the I.O has not recorded any memorandum statement of the

appellant. In fact, it is the case of the prosecution that the

appellant neither admitted the guilt nor got the weapon or dead

body recovered at his instance. Even the chemical examination

report is inconclusive although human blood was found on the

shirt and on the stone, but the blood group was not matched.

19. The present is a case where except for the evidence of ‘last

seen together’ there is no other incriminating material against

the appellant.

20. This Court in Kanhaiya Lal vs. State of Rajasthan6 has

held that evidence on ‘last seen together’ is a weak piece of

evidence and conviction only on the basis of ‘last seen together’

without there being any other corroborative evidence against the

accused, is not sufficient to convict the accused for an offence

under Section 302 IPC. The following passage from the judgment

in paras 12 and 15 can be profitably referred: 6

(2014) 4 SCC 715 13

“12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-

explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

15. The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan,(2010) 15 SCC 588”

21. Similarly, this Court in Rambraksh @ Jalim vs. State of

Chhattisgarh7 has reiterated above legal position in the

following words in paras 12 and 13:

“12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time

7 (2016) 12 SCC 251 14

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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.

13. In a similar fact situation this Court in Krishnan v. State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp. 284-85, paras 21-24) “21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31) ‘31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.’

22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31) 15

‘31. The last seen theory comes into play where the time gap between the point of time when the accused and 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 will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed.”

22. In the case at hand also the only evidence against the

appellant is of ‘last seen together’. The evidence of motive does 16

not satisfy us to be an adverse circumstance against the

appellant inasmuch as if the appellant has any doubt about his

wife’s chastity, he would have caused injury or harm to his wife

rather than to wife’s cousin with whom he had no animosity.

Moreover, the so-called weapon of the offence i.e. the stone has

not been recovered at his instance nor there is any memorandum

statement of the appellant.

23. On the basis of above discussion, we are of the opinion that

the nature of circumstantial evidence available against the

appellant though raises doubt that he may have committed

murder but the same is not so conclusive that he can be

convicted only on the basis of evidence on ‘last seen together’.

24. It is held by this Court in Sujit Biswas vs. State of

Assam8 suspicion, howsoever strong, cannot substitute the

proof and conviction is not permissible only on the basis of the

suspicion. It is held thus in para 6:

“6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must

8 AIR 2013 SC 3817 17

not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P.,(1952) 2 SCC 71, State v. Mahender Singh Dahiya (2011) 3 SCC 109 and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777.”

25. In view of the above discussion, we set aside the impugned

conviction and sentence imposed by the High Court and the Trial

Court and acquit the appellant for the charges under Sections 18 302 and 201 IPC. The appellant be set at liberty, if he is not

required in any other case.

The appeal stands allowed.

…….………………………………………J. (SANJAY KAROL)

...….………………………………………J. (PRASHANT KUMAR MISHRA)

NEW DELHI;

MAY 21, 2025.