Can a conviction for murder be sustained solely on the basis of motive when the key eyewitnesses have turned hostile?
Coram: Pankaj Mithal; Prasanna B. Varale
Indian Penal Code, 1860 — ss.302, 364, 201 — Circumstantial evidence — Last-seen theory — Hostile witnesses — IPC, 1860 — Circumstantial evidence — Last-seen theory — Requires affirmative proof of company — Held: The last-seen theory cannot fasten guilt unless the evidence affirmatively proves the deceased was last seen alive in the accused's company; mere prior animosity or motive, without more, cannot substitute for proof of the actus reus of kidnapping and killing. (¶11, 12) IPC, 1860 — Hostile witnesses — Chain of circumstances — Unidentified commotion insufficient — Held further: Where the only witnesses to the abduction turn hostile and depose only to unidentified commotion without identifying the accused, the chain of circumstances necessary to sustain conviction is not established. (¶8, 13) IPC, 1860 — Circumstantial evidence — Panchsheel — Complete unbroken chain required on facts — On facts, held: The prosecution must establish a complete, unbroken chain pointing unerringly to guilt and inconsistent with innocence. Since the courts below convicted on a misreading of evidence, the impugned judgments are set aside and the appellant is acquitted and ordered released. (¶14, 15)
Can a conviction for murder be sustained solely on the basis of motive when the key eyewitnesses have turned hostile?
No. The Court held that although animosity between the parties (arising from earlier cross-complaints) may establish a motive for the crime, motive alone is not sufficient to prove commission of the offence unless supported by direct or circumstantial evidence proving the kidnapping/abduction and killing of the deceased.
What is the 'last seen' theory and was it established in this case?
The last-seen theory requires proof that the deceased was last seen alive in the company of the accused shortly before death, shifting the burden to the accused to explain what happened thereafter. Here, the Court found no evidence to prove that the deceased was last seen with A-1, since the witnesses who allegedly saw the abduction (PW-5 and PW-6) turned hostile and did not identify the accused or confirm the deceased's presence with him.
What effect did the hostile testimony of PW-5 and PW-6 have on the prosecution's case?
PW-5 and PW-6, though they had given statements under Sections 161 and 164 Cr.P.C. describing the accused dragging the deceased into an auto, resiled from this at trial, stating only that they saw an unidentified 'galata' (commotion) and could not identify the persons involved. This rendered the prosecution's account of the kidnapping unproved and fatally weakened the chain of circumstantial evidence.
What are the 'panchsheel' principles governing proof by circumstantial evidence, and how were they applied?
The panchsheel principles require that: the circumstances from which guilt is concluded must be fully established; the facts must be consistent only with the hypothesis of guilt; the circumstances must be conclusive; they must exclude every other hypothesis except guilt; and there must be a complete chain of evidence leaving no reasonable doubt of innocence. Applying these principles, the Court found the prosecution had miserably failed to establish such a chain, since neither the kidnapping nor the last-seen circumstance was proved.
What was the final outcome of the appeal?
The Supreme Court set aside the judgments of the Trial Court and the High Court, allowed the appeal, and acquitted the appellant of all charges, directing his release forthwith unless required in any other case.
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The appellant who is Accused No.1(‘A-1’) was convicted under Sections 302 and 364 of the Indian Penal Code, 1860 (‘IPC’) and was sentenced to life imprisonment and to pay a fine of Rs.5,000/- and seven years of rigorous imprisonment and fine of Rs.5,000/- under Section 201 of the IPC with the direction that both the sentences shall run concurrently. In the event of default in payment of the fine, he was directed to undergo further imprisonment of six months.
The aforesaid judgment and order of conviction and sentence have been confirmed by the High Court by the impugned Judgment and order dated 19.06.2024.
The prosecution case is that the deceased Bhoominadhan was an auto driver. The family of the deceased consisting of his father Rajagopal Vellimalai @ Peddodu-PW-1 and his mother-PW-2 along with elder brother-PW-3 were living in Chandrababu Nagar, Nellore. The appellant-A-1 was known to them as he was also involved in auto business, but was living in Sramika Nagar, Nellore.
It appears that on 22.03.2016, the mother of the deceased-PW-2 reported to the Nellore Rural Police, that A-1 along with his friends while sitting near Vinayaka Temple in Chandrababu Nagar Area was passing obscene remarks against the females and were threatening them. On this report, Crime No.108/2016 under Sections 143, 290, 354, 323 and 506 read with Section 34 of the IPC was registered. In this connection A-1 also lodged a cross First Information Report (‘FIR’) which was registered as Crime No.109/2016 under Sections 341, 323, 379 read with Section 34 of the IPC.
A few days thereafter, the father of the deceased/PW-1 lodged an FIR No.118 of 2016 on 27.03.2016 alleging that on 26.03.2016 at about 06:30 p.m. when his son reached near banyan tree in Talpagiri Colony, Nellore City, the accused A-1 and his friends forcibly took him away into their auto and thus, kidnapped him. On the next day, the dead body of the deceased Bhoominadhan was found with multiple injuries near Sarvepalli Reservior of Anikepalli Village in Nellore District. On receiving the information, PW-1 went there and identified the dead body of his son. Accordingly, the alteration memo was filed adding Section 302 of the IPC in the FIR.
The case of the prosecution in short is that when the deceased Bhoominadhan was proceeding in his auto at about 06.00 p.m. in the evening of 26.03.2016 and had reached the banyan tree in the Talpagiri Colony, Nellore, the accused forcibly dragged the deceased from his auto into their own auto and kidnapped him, which in fact was witnessed by PW-5, who further informed about the incident to PW-1. The father of the deceased Bhoominadhan, PW-1 searched for his son and submitted an FIR to the police at about midnight alleging that his son was abducted by A-1 and his friends.
Both PW-5 and PW-6 gave statements to the Police under Section 161 Cr.P.C. that they have seen the accused persons dragging the deceased Bhoominadhan into an auto on the evening of 26.03.2016. The statements of these two witnesses were also recorded before the Magistrate under Section 164 Cr.P.C., wherein they stated that when they reached the banyan tree at Talpagiri colony, they heard cries and when they turned back, they saw the accused and three other persons beating the deceased Bhoominadhan whereupon information of it was given to the PW-1.
The testimony of the aforesaid two witnesses PW-5 and PW-6 was recorded before the Trial Court where they clearly stated that they only observed some ‘galata’ under the banyan tree in Talpagiri Colony but they could not identify the persons involved in the ‘galata’. They nowhere stated that they witnessed the deceased Bhoominadhan being dragged and put into an auto.
The submission of Mr. K.K. Mani, learned counsel appearing for the appellant, is that there is no eyewitness in the case who might have seen A-1 committing the offence of killing the deceased. The conviction is entirely based on circumstantial evidence and more particularly on the testimony of PW-5 and PW-6. The aforesaid two witnesses PW-5 and PW-6 have turned hostile and they have not proved the kidnapping of the deceased Bhoominadhan. There is no evidence that the deceased was last seen with A-1 and therefore, he is not the person answerable and responsible for Bhoominadhan’s death.
In defence, Ms. Prerna Singh, learned counsel appearing for the respondent-State, submitted that there was a clear motive on the part of the accused to commit the offence and that even if PW-5 and PW-6 have turned hostile, it has been proved by circumstantial evidence that A-1 and his friends are guilty of committing the offence as they failed to give any explanation as to what happened to the deceased after he was taken away by them in the evening of 26.03.2016.
Undoubtedly, the defence counsel from the deposition of PW-7 (IO) has been able to prove the animosity between the parties on account of the previous report lodged by the PW-2, mother of the deceased against A-1. The aforesaid animosity between them may be the motive behind the crime but it is not sufficient to prove the commission of the crime unless the evidence proves kidnapping/abduction and killing of the deceased, either by direct or circumstantial evidence.
We have gone through the statements of PW-5 and PW-6 and are of the clear view that they have not uttered a single word so as to prove the kidnapping as alleged or even that the deceased was with them at any point of time in the evening of 26.03.2016. The only thing proved from the statements of the aforesaid witnesses is that there was some ‘galata’ under the banyan tree in Talpagiri Colony but they were unable to identify the persons involved in it. They even failed to testify that any information was given by them to PW-1 regarding the alleged kidnapping of the deceased Bhoominadhan.
In the absence of such evidence and the fact that both PW-5 and PW-6 have turned hostile, it cannot be held that A-1 was involved in the incident and that he was responsible for the killing of the deceased, on the basis of the last seen theory. There is no evidence to either prove the kidnapping of the deceased Bhoominadhan or that he was last seen in the company of A-1.
In view of the aforesaid facts and circumstances, and keeping in mind the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence, we are of the opinion that the prosecution has miserably failed to prove the commission of the offence at the hands of A-1.
Accordingly, both the Trial Court and the High Court erred in convicting the appellant-A-1 on complete misreading of the evidence. Thus, the impugned judgments and orders of the High Court and the Trial Court are hereby set aside and the accused A-1, the appellant herein, is acquitted of all the charges and is directed to be released forthwith, if not involved in any other case.
The appeal is allowed accordingly.
Pending application(s), if any, shall stand disposed of. [PANKAJ MITHAL] ...J. [PRASANNA B. VARALE] NEW DELHI; SEPTEMBER 17, 2025
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