Junu Soy And Anr. Vs State of Bihar

2025:JHHC: 15411-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B) No.12 of 1999(R)

[Against the Judgment of conviction and Order of sentence dated 15.12.1998 passed by the learned District & Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No.72 of 1998]

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Junu Soy, Son of Late Samu Soy

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Boby Gope Son of Late Rutu Gope, Both Resident of Village Barahatu P.S. Muffasil District – Singhbhum (West) ….. Appellants

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Versus

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The State of Bihar (Now Jharkhand) ..... Respondent

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PRESENT

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HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Mr. Kumar Vaibhav, Amicus Curiae For the State : Mr. Vineet Kr. Vashistha, Spl.P.P

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Order No.30/Dated: 13th June, 2025

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1. The instant appeal is directed against the Judgment of conviction and order of sentence dated 15.12.1998, passed by learned District & Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No.72 of 1998, arising out of Chaibasa Muffasil P.S. Case No.127 of 1997 (G.R. Case No.540 of 1997), registered under Sections 302/ 201/ 34 of the Indian Penal Code by which both the appellants have been convicted under Sections 302/ 201 of the Indian Penal Code (IPC) and have been directed to undergo rigorous imprisonment for life for the offence under Section 302 I.P.C.

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Factual Matrix

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2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of

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institution of prosecution case.

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3. The prosecution story in brief as per the allegation made in the First Information Report reads as hereunder:-

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4. According to prosecution case, as given in the First Information Report (F.I.R.) (Ext.2), in short, is that on the alleged date of occurrence i.e. 7/10/97, the informant's son Lalu Soy left the house from village Diliamarcha and stated to his father that he was going to the garage of his owner where he worked and thereafter Lalu Soy did not return to his house on Tuesday and thereafter the informant started search of his son on the next day. While the informant was searching his son a few boys of the village, who had gone to catch fish in the field, informed the informant on 9/10/97, that a dead body was lying in the field and when the informant went to the field to see the dead body he found that the dead body belonged to his son Lalu Soy.

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The informant has further stated that one Mute Mai informed the informant that while she was selling handia on Tuesday, Lalu Soy had come with accused Junu Soy and Bobi Gope and both of them took handia alongwith Lalu Soy and both the accused caught the hands of Lalu Soy and they took Lalu towards the field. The motive of the alleged occurrence is said to be the fact that the informant had sold a piece of land near the railway station to one Dinbandhu Soy and Junu Soy claimed that piece of land for which there was some differences between the informant and accused Junu Soy and it is alleged that accordingly Junu Soy in collusion with Bobi Gope has committed the murder of Lalu Soy.

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The informant gave a written report of the alleged occurrence to the Officer-in-Charge of Muffasil P.S. Chaibasa and on the basis of the written report (Ext.2) one F.I.R. was drawn up at Chaibasa Muffasil P.S. and accordingly investigation was taken up.

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5. After completing investigation, the police submitted charge sheet against the accused persons and the learned Chief Judicial Magistrate took cognizance in the case and committed the case to the court of Sessions where charge has been framed against the accused persons under Sections 302 and 201 of the Indian Penal Code and the trial has accordingly commenced to which the accused persons pleaded not guilty and claimed to be tried.

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6. The prosecution has altogether examined 08 witnesses, namely, P.W-1 Sugna Soy, P.W-2 Dr. Lalit Minz, P.W- 3 Kandey Soy, (informant), P.W-4 Sheo Charan Soy (cousin of the informant), P.W-5 Dudhnath Tiu, P.W-6 Soban Munda, P.W-7 Ratibhan Singh (Investigating Officer) and P.W.-8 Mute Mai.

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7. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person, found the charge levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Sections 302/ 201 of the Indian Penal Code.

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8. The aforesaid judgment of conviction and order of sentence is the subject matter of instant appeal.

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Submission of the learned Amicus Curiae for the

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appellants:

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9. Mr. Kumar Vaibhav, learned counsel, has submitted that the impugned Judgment of conviction and Order of sentence, passed by the learned trial Court cannot be sustained in the eyes of law.

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10. The following grounds have been taken by the learned Amicus Curiae for the appellants in assailing the impugned judgment of conviction:

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(i) It is a case where the conviction is based upon the principle of last seen theory and even the principle which is to be made applicable in the case of proving the charge in a case of circumstantial evidence has not been made out by the prosecution, but, even then the appellants have been convicted.

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(ii) The learned trial court has not taken into consideration that even the last seen theory will not be applicable because there is gap in between the last seen and the recovery of the dead body of the deceased which is approximately more than 48 hours.

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(iii) Learned Amicus, based upon the aforesaid grounds, has submitted the impugned judgment, therefore, suffers from error, and as such, is fit to be quashed and set aside.

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Submission of the learned Special Public Prosecutor for

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the State:

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11. Per contra, Mr. Vineet Kumar Vashishtha, learned Special Public Prosecutor appearing for the State, while

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defending the impugned judgment, has submitted that the post-mortem report is very much clarifying the accusation made against both the appellants in commission of murder of the deceased.

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12. It has also been submitted that both the appellants had been seen by the witnesses, P.W.–1 and P.W.–8 and basing upon that the conviction is made and as such the judgment of conviction cannot be said to suffer from an error and hence, the present appeal is fit to be dismissed.

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Analysis

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13. We have heard learned counsel for the parties and gone through the findings recorded by the learned trial Judge in the impugned judgment, and have also appreciated the rival submissions made on behalf of the parties.

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14. This Court, on the basis of aforesaid factual aspect visà-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court: -

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(i) As to whether the prosecution has been able to prove the charges beyond all reasonable doubt.

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(ii) Whether the learned trial Judge has been able to appreciate the grounds basing the judgment of conviction on the basis of last seen theory?

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15. But, before considering the aforesaid issues, certain factual aspects, i.e. the testimony of the witnesses are required to be referred herein: -

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16. In this case the prosecution has examined altogether

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eight witnesses namely, P.W-1 Sugna Soy, P.W-2 Dr. Lalit Minz, P.W- 3 Kandey Soy, (informant), P.W-4 Sheo Charan Soy (cousin of the informant), P.W-5 Dudhnath Tiu, P.W-6 Soban Munda, P.W-7 Ratibhan Singh (Investigating Officer) and P.W.8 Mute Mai.

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17. P.W.-1, Sugna Soy, has deposed about the prior enmity between the appellant No.1, Junu Soy and the deceased. In the cross-examination, he has deposed that he did not see the murder, but he had seen the accused pulling the deceased at the Station around 04:00 p.m.

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18. P.W.-2, Dr. Lalit Minz, is the doctor, who had conducted the post-mortem examination of the dead body of Lalu Soy, and he found cut injury on the right upper leg size ½” vertical, blood from nostrils, lacerated injuries right side of face, lacerated injury on right ear, neck muscle congested, hyoid bone fracture, blood present in trachea, blood present in the right plural cavity, right lungs collapsed, left lung congested, heart empty, stomach consisted of undigested food. Age of injury – within 48 hours. Mode of injury – throttling and cause of death – Asphyxia. The post-mortem report is marked as Ext.-1.

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In his cross-examination, he has stated that it is not possible to cause lacerated wound on right side of face and ear due to throttling.

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19. P.W-3, Kandey Soy is the informant of this case and father of the deceased. He has deposed that he was informed by Mute Mai, the Handia seller (P.W.-8) that the appellants were holding and taking the deceased. He has also deposed

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about the earlier dispute between the appellant No.1 and the deceased.

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20. P.W.-4, Sheo Charan Soy is the cousin of the informant. He is the hearsay witness. He has deposed about the earlier dispute between the appellant No.1 and the deceased. In his cross-examination, he has stated that he did not see the appellants with the deceased and he came to know about the appellants from Mute Mai.

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21. P.W.-5, Dudhnath Tiu, is the village Munda and an inquest witness. He has deposed that he wrote the written application as per the version of the informant. In crossexamination, he has stated that he wrote the written application in the police station as per the instruction of the Bada Babu .

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22. P.W.-6, Soban Munda is the father of P.W.-8 and he has been declared hostile.

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23. P.W.-7, Ratibhan Singh is the investigating officer of this case. In his cross-examination, he has stated that there was no case registered between the accused and the deceased and he handed over the investigation of the case to the Subinspector of Police, Gopal Singh.

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24. P.W.-8 Mute Mai is 10 years old girl, who was selling hadiya together with P.W.6. She has deposed in her evidence that on the alleged date of occurrence, both the accused and Lalu Soy (deceased) came to their handia shop and took handiya and thereafter both the accused had taken Lalu Soy towards the field.

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25. The learned trial Court, based upon the testimonies of

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the prosecution witnesses, particularly, P.W.-1 and P.W.-8, who have seen the deceased said to be the last seen along with these two appellants, has convicted both the appellants under Sections 302/ 201 of the Indian Penal Code.

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26. It is evident from the impugned judgment and the prosecution story which has been tried to substantiate the accusation made against both the appellants for attracting the ingredients of Sections 302/ 201 I.P.C that primarily the last seen theory has been taken into consideration and connecting the circumstances based upon the aforesaid last seen theory, the judgment of conviction has been passed.

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27. On perusal of the testimonies of the witnesses examined on behalf of both sides, this Court found that this is a case of circumstantial evidence as there was no eye witness to the alleged crime.

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28. As is evincible, the entire case rests on circumstantial evidence. Before we analyze and appreciate the circumstances that have weighed with the trial Court, we think it apposite to refer to certain authorities pertaining to delineation of cases that hinge on circumstantial evidence.

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29. There is no quarrel with the settled position of law that in the case of circumstantial evidence, the chain is to be complete then only there will be conviction of the concerned accused person, as has been laid down by the Hon'ble Apex Court in the case of Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it has been held that “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances

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from which the conclusion of guilt is to be drawn should in the first instance 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 they 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 not to 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 probability the act must have been done by the accused.”

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30. The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances should be of a conclusive nature and tendency and they 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 not to 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 probability the act must have been done by the accused.

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31. The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect

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revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. the Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under:

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“9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they 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 not to 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 probability the act must have been done by the accused.”

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32. It is, thus, evident from the close analysis of the aforesaid judgments the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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(ii) the facts so established should be consistent only with the

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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,

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(iii) the circumstances should be of a conclusive nature and tendency,

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(iv) they should exclude every possible hypothesis except the one to be proved, and

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(v) there 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 act must have been done by the accused.

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33. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court in the said case as under paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under:

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“ 155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: “Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.”

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156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”.

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157. This indicates the cardinal principle of criminal

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jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500] Lagu case [AIR 1960 SC 500] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases — Tufail case [(1969) 3 SCC 198] , Ramgopal case [(1972) 4 SCC 625] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,]. There are a number of other cases where although Hanumant case [(1952) 2 SCC] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405,] — a five-Judge Bench decision.

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158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: “But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation. such absence of explanation or false explanation would itself be an additional link which completes the chain.”

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159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the

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time and situation.”

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34. The foremost requirement in the case of circumstantial evidence is that the chain is to be completed. In Padala Veera Reddy v. State of A.P. [1989 Supp. (2) SCC 706] the Hon’ble Apex Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

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“ 10. … (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (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 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.”

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35. In Balwinder Singh v. State of Punjab [1995 Supp

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(4) SCC 259], it has been laid down by the Hon’ble Apex Court as that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. Relevant paragraph of the aforesaid judgment is being quoted as under:

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“4. … the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”

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36. In Harishchandra Ladaku Thange v. State of Maharashtra [(2007) 11 SCC 436] , while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized by the Hon’ble Apex Court that 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 the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused 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.

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37. In Ram Singh v. Sonia (2007) 3 SCC 1 , while referring to the settled proof pertaining to circumstantial evidence, the Hon’ble Apex Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein as follows:

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“ 39. … in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.”

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38. In Ujjagar Singh v. State of Punjab (2007) 13 SCC

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90 , after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, the Hon’ble Apex Court observed as under:

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“ 14. … It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.”

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39. The judgment referred in Hanumant (supra) has been consistently followed by Hon’ble Apex Court in the judgment rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC 198]; Ram Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and also in Musheer Khan alias Badshah Khan & Anr. Vs. State of Madhya Pradesh [(2010) 2 SCC 748] .

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40. The Hon’ble Apex Court in Musheer Khan (Supra) while discussing the nature of circumstantial evidence and the burden of proof of prosecution has held as under paragraph nos. 39 to 46 as under:

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“39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is “inferential evidence” and proof in such a case is derivable by inference from circumstances.

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40. Chief Justice Fletcher Moulton once observed that “proof does not mean rigid mathematical formula” since “that is impossible”. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge “like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches”. The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

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41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a

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network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] )

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42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.)

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43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail. 44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

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45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

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46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are: “5. … „10. … in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the

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hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they 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 not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.‟ [ As observed in Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46, para 10.]”

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41. The Hon’ble Apex Court in the case of Laxman Prasad @ Laxman vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of 2012 dated 14.06.2023 has held at paragraphs-3 & 4 as follows:

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“ 3. We do not find such conclusion of the High Court to be strictly in accordance with law. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point. Reference may be had to the following cases: (i) Sharad Birdhichand Sarda vs. -State of Maharashtra,(1984) 4 SCC 116; (ii) Sailendra Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC 180.

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Thus, if the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with.”

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42. Thus, it is evident that for proving the charge on the basis of circumstantial evidence, it would be necessary that evidence so available must induce a reasonable man to come to a definite conclusion of proving of guilt; meaning thereby there must be a chain of evidence so far it is complete as not to 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 probability the act must have been done by the accused.

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43. A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while

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appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.

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44. The Hon’ble Apex Court in the case of Satpal v. State of Haryana, (2018) 6 SCC 610 has observed that when there is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant, the Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. For ready reference the relevant paragraph is being quoted as under:

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"6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused

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owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain

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of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."

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45. Keeping in view the aforesaid settled connotation of law, we shall presently proceed to scrutinize and evaluate the circumstances, whether the said circumstances coupled with the alleged “last seen theory” establish the guilt of the accused/ appellants beyond reasonable doubt.

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46. Adverting to the testimonies of the witnesses, particularly, P.W.-1 and P.W.-8, this Court once again is referring to the testimony of the said witnesses for the appreciation of the aforesaid legal position as to whether the prosecution has been able to prove the charge based upon the aforesaid proposition of law to prove the accusation against both the appellants said to be proved beyond all reasonable doubt.

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47. P.W.-1, Sugna Soy, has deposed about the prior enmity between the appellant No.1, Junu Soy and the deceased. In the cross-examination, he has deposed that he did not see the murder, but he had seen the accused pulling the deceased at the Station around 04:00 p.m.

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48. P.W.-8 Mute Mai is 10 years old girl, who was selling handiya together with P.W.6. She has deposed in her evidence that on the alleged date of occurrence, both the accused and Lalu Soy (deceased) came to their handiya shop and took handiya and thereafter both the accused had taken Lalu Soy towards the field.

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49. It is evident from the testimonies of the aforesaid witnesses that both the appellants admittedly had been seen along with the deceased but we have not found any specific

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time and date as to when the deceased was last seen along with both the appellants.

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50. It was the primary duty of the prosecution to come out with specific time and date in order to have a conclusive reason for connecting culpability of both the appellants in commission of crime on the basis of last seen theory or circumstantial evidence wherein the proximity of time is the main essence in order to complete the chain of circumstances.

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51. The Hon’ble Apex Court in the case of Mohibur Rahman v. State of Assam (2002) 6 SCC 715 has categorically observed that 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, for ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under:

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“ 10. 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. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does

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not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal.”

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52. The Hon’ble Apex Court in the case of Malleshappa v.

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State of Karnataka, (2007) 13 SCC 399 has observed on

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the same line which reads as under:

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24. In the present case also, there is no proximity of time and place. We have already noted that the dead body, even if it is to be accepted, was that of the deceased Yankanna, had been recovered after 10 days after the date on which the deceased was last seen in the company of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW 10 is to be accepted, is not enough-----.

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53. Applying the aforesaid settled proposition of law, in fact of the instant case, it is evident that the informant, who has been examined as P.W.-3, has stated in the First Information Report that the deceased was found to be missing from 07.10.1997. However, it is also admitted that P.W.-3 had not seen the deceased along with the appellants, rather he is hearsay on this point and has reported the same in the F.I.R. The P.W.-1 and P.W.-8 in their testimony had deposed that they had seen the deceased along with these two appellants.

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54. This Court after going through the testimony and evidence available on record in entirety as available in the

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trial court records, has found save and except the aforesaid testimonies, there is no other evidence said to substantiate the charge of accusation against both the appellants to connect culpability said to be committed by these two appellants.

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55. It needs to refer herein the settled connotation of law that merely on the basis of conjectures and surmises, there cannot be conviction of any person and it is the utmost duty of the prosecution to prove the accusation against the accused on basis of the cogent evidence and the accusation has to be proved beyond all reasonable doubt.

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56. It needs to refer herein that the Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of ‘Rang Bahadur Singh & Ors. Vrs. State of U.P.”, (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under: -

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"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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57. Likewise, the Hon'ble Apex Court in the case of “Krishnegowda & Ors. Vrs. State of Karnataka” (2017)

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13 SCC 98 , has held at paragraph-26 as under:-

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"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

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58. Further, the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of “State of Haryana Vrs. Bhagirath & Ors.”, (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under:

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"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

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59. Likewise, the Hon'ble Apex Court in the case of “Krishnegowda v. State of Karnataka” (Supra) at paragraph-32 and 33 has held as under:-

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"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. 33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -

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60. It needs to refer herein that the Hon'ble Apex Court, in

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the case of “Allarakha K. Mansuri v. State of Gujarat”, (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph-6 thereof requires to be referred herein which reads hereunder as :-

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“6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. —"

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61. It needs to refer herein before laying down the aforesaid view, the Hon’ble Apex Court in the case of

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“Sharad Birdhichand Sarda v. State of Maharashtra”,

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(1984) 4 SCC 116 has already laid down the same view at paragraph-163 which is required to be referred which read hereunder as:

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“163. We then pass on to another important point which seems

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to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

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62. This Court, in view thereof and applying the principle of last seen/ circumstantial evidence, is of the view that the prosecution has not been able to substantiate the charge said to be proved beyond all reasonable doubt due to absence of connecting chain to prove the accusation against the appellants.

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63. Mr. Vineet Kumar Vashistha, learned Special Public Prosecutor, although has made opposition, but, he has not disputed the proposition of law that in proving the accusation in a case of circumstantial evidence wherein the requirement, as per the law, is that the chain of circumstances is to be completed.

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64. This Court after having discussed the factual aspect as well as the settled proposition of law as discussed hereinabove, adverting to the impugned judgment where from it is evident that the learned trial Court has only considered the testimony of the witnesses to the effect that the deceased and both the appellants have been last seen together.

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65. The learned trial Judge, therefore, has gone into the premise of proving the accusation on the basis of circumstantial evidence, but, while doing so to prove the charge against both the appellants, committing the commission of crime of murder of the deceased, has failed to appreciate the connecting chain and merely on the basis of

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principle of last seen theory, the judgment of conviction has been passed.

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66. Therefore, this Court is of the considered view that the impugned judgment requires interference.

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67. Accordingly, the Judgment of conviction and order of sentence dated 15.12.1998, passed by learned District & Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No.72 of 1998, arising out of Chaibasa Muffasil P.S. Case No.127 of 1997 (G.R. Case No.540 of 1997), is, hereby, quashed and set aside.

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68. Since the appellants are on bail, they are discharged from all the criminal liability, henceforth.

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69. In the result, the instant appeal stands allowed.

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70. Pending interlocutory application, if any, stands disposed of.

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71. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.

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(Sujit Narayan Prasad, J. )

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(Rajesh Kumar, J.)