Raghu Oraon  Raghunandan Oraon And Anr. Vs State of Bihar

Code, 1973 is directed against the judgment of conviction dated 1812-1997 and order of sentence dated 19-12-1997 passed by the learned Additional Sessions Judge, Gumla in Sessions Trial No. 217 of 1996 whereby and whereunder, the appellants herein have been convicted for the offence under Sections 302/34 of the IPC and have been sentenced to under to Rigorous Imprisonment for life.

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Factual Matrix

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2. The brief facts of the case as per the memo appeal is being referred herein which reads as under:

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On 17.11.1995, in the morning, Informant’s elder brother (deceased) had gone to Gumla SDO Court for attending the date of the case. In the evening, when the Informant went to Adar, there he saw co-villagers Somra Oraon, Raghu Oraon and two unknown persons were coming towards road side.

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It has further been alleged that at about 5.00 PM, his elder brother along with Basu Tana Bhagat and Feku Choukidar came by a truck and thereafter they all proceeded. At about 6.00 PM, Informant’s brother went to attend the call of nature in a river. The informant all of a sudden heard the sound of firing and when he went near the scene, found his brother in injured condition and also saw Somra +Oraon, Raghu Oraon and others were fleeing away with two unknown persons.

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3. On the basis of the above information, a case being Gumla Sadar 17 of 1995 was registered under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act against Somra Oraon, Raghu Oraon and two unknown persons and after investigation of the case, the charge sheet was submitted against the appellants.

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4. Accordingly, the cognizance for the offence under the aforesaid sections was taken against the appellant and the case was committed to the court of sessions and thereafter the trial commenced.

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5. The prosecution had examined all together 8 witnesses.

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6. The learned Trial Court by considering the testimony of informant (P.W.5), as well as evidence of an eye-witness (P.W.3) has convicted the present appellants for the offence punishable under Sections 302/34 of the Indian Penal Code, which is subject matter of the present appeal.

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Arguments advanced by the learned counsel appearing for the appellants:

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7. The appeal, pointing out the infirmity said to be committed by the learned trial Court while convicting the appellants for the offence under Section 302/34 of the Indian Penal Code, has been filed on the following grounds:

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(i) No substance of land dispute has been found to be corroborated in course of the investigation by the Investigating Officer, but the aforesaid issue, has been taken into consideration by the learned trial Court as a motive for commission of crime of the murder of the deceased.

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(ii) The allegation is of committing murder due to gun-shot injury, but no recovery of any arms has been found to be there by the Investigation Officer, which would be evident from the seizure list itself.

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(iii) The PW 3 and PW 5 have been considered to be an eyewitnesses, but if the testimony will be taken into consideration, then it would be evident that they cannot be said to be eye-witnesses, since, they had not seen the

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commission of crime said to be committed by these appellants, except by taking the name of the appellants and deposed that they have seen the appellants when appellants were fleeing away from the place of occurrence.

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(iv) The version of the informant in the FIR, who has been examined as P.W.-5 is that the Somra and Raghu (appellants herein) had been seen giving bullet injury upon the deceased, but the said version has not been supported by PW 5 in his evidence, rather they have deposed that the appellants were found fleeing away from the place of occurrence.

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8. The learned counsel appearing for the appellant, based upon the aforesaid grounds, has submitted that all these aspects since has not been appreciated by the learned trial Court in the right perspective, as such, the judgment of conviction suffers from an error, hence the present appeal.

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Arguments advanced by the learned Spl. Public Prosecutor appearing for the State:

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9. Per contra, Mrs. Nehala Sharmin, learned Spl. Public Prosecutor has defended the impugned judgment by taking the following grounds:

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(i) It is a case where the judgment cannot be said to suffer from an error, since the conviction is based upon the testimony of PW 3 and PW 5, who have been considered to be an eye witness to the alleged occurrence.

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(ii) The submission has been made that if the testimony of PW 3 and PW 5 will be taken into consideration in entirety as also the testimony of the doctor, it would be evident that the testimony of the ocular witness, i.e., PW 3 and PW 5 have fully been supported by the doctor, who has been examined as PW 6.

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(iii) The ground that been taken that the version which has been stated by P.W. 5 in the FIR of seeing the appellants, at the place of occurrence giving bullet shot, has been corroborated by him in the evidence recorded in course of the trial.

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10. Learned counsel appearing for the respondent State, based upon the aforesaid grounds, has submitted that the judgment therefore 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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11. We have heard the learned counsel for the parties and have gone through the findings recorded by the learned Trial Court in the impugned judgment as also the testimony of the witnesses and other materials exhibits as available in the trial court record.

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12. This Court is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned Trial Court during the trial has altogether examined eleven witnesses.

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P.W.1 Tetra Oraon stated that in his presence, the dead body of deceased Kinwa Tena Bhagat was seized by the I.O. and accordingly the Inquest report in carbon processes was prepared in his presence and same was read over to him, upon which he signed. He identified his signature as Ext. 1. He also identified the signature of the other witness Rati Oraon as Ext.1/1. He had stated that blood-stained earth was also seized by the I.O. in his presence and he prepared the Seizure list in Carbon processes and when it was read over to him, he signed the same. He proved the seizure list as Ext.2 and his signature was marked as Ext. 2 and that of a witness Rati Oraon as Ext. 2/1.

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P.W.2 Rati Oraon was tendered for cross examination and nothing was asked from him.

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P.W.3 Basu Tana Bhagat stated in court that on the date of occurrence he had come to Ghaghra. Kinwa Tana Bhagat(deceased) had also come to Gumla to attend the 107 Cr.P.C proceeding before the S.D.0. Gumla. After attending the court in the noon, Kinwa Tana Bhagat came to Ghaghra and met him in Chandni Chowk for catching bus to village. Feku Choukidar also came and then three of them boarded a Truck. They got down from the said Truck near the Check naka where they saw Jauna Tana Bhagat waiting for his brother. Thereafter all four of them proceeded towards their village on foot.

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Further he had stated that when they reached near Tin Forwa River at about 5 P.M. then Kinwa Tana Bhagat went for natural call near the river. They were waiting for him. When they heard sound of firing, they ran towards Kinwa Tena Bhagat and found him injured with Gun firing and also saw the accused persons running away. Injured Kinwa Tana Bhagat had told them that Somra and Raghu fired on him. They saw Somra Oraon and Raghu Oraon running away from the place of occurrence alongwith two unknown persons.

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Thereafter he went to the village and informed the villagers, when they were running, they saw Somra and Raghu Oraon, and Gahnu and Sukhdeo Oraon running to the village. He also stated that kinwa Tana Bhagat had land dispute with Somra Oraon. He identified the accused persons in court.

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In his cross-examination, he had stated that the deceased Kinwa Tana Bhagat was a co-villager and a village Samadhi. He also stated in his cross examination that they were waiting for the deceased while he was easing at a distance of 10 steps. He stated that his village is at a distance of one mile from Tin Forwe river. He also stated in his cross examination that he gave his statement to the police that he saw the two accused persons firing.

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P.W.4 Jageshwar Tana Bhagat stated in court that 1½ years back

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on a Friday of aghan month he was at his home and his father deceased Kinwa Tana Bhagat had gone to Gumla to attend the

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court. At about 7 P.M. in the evening Basu Tana Bhagat came and told him that Raghu Oraon, Somra Oraon, Gahnu Oraon and Sukhdeo Oraon have killed his father near Tin Forwa River by firing causing his death. Hearing this he along with his mother and co-villagers went to the place of occurrence and saw the dead body of his father. He identified both the accused in court.

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In his cross examination he stated that when Basu Tana Bhagat came to his house then his mother and brother were at home. He also stated that he remained near the dead body at 9:10 P.M.in the night.

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PW.5 Jauna Tana Bhagat the informant had stated that on the date of occurrence, his brother Kinwa Tana Bhagat had gone to Gumla to attend the land dispute case in the court of S. D.O. and while running from his work he was waiting for Kinwa near Checknaka. Feku Chowkidar got gown near the cheeknaka, then all four of them proceed on foot towards their village. When they reached near Tin Forwa river then deceased Kinwa Tana Bhagat wanted to go for natural call and while he was attending his natural call they were waiting for him.

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He had further testified that they heard sound of firing and ran towards Kinwa then he saw that both the appellants/accused along with two persons running away from the place of occurrence. Kinwa had told them that Raghu and Somra Oraon has fired on him. They chased the accused persons for some distance

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but subsequently return near the deceased. After some time Kinwa died thereafter leaving the Choukidar and himself Basu Tana Bhagat went to the village and came along-with his family members and villagers.

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In the morning, they came to the police station and he had given his statement based upon that FIR was lodged. He proved his signature on the FIR as Ext. 3. He identified the accused persons in court.

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In his cross examination he stated that he left for the village as soon as Kinwa got down from the Truck. He also stated that while going to Adar he had seen Raghu and Somra Oraon in between Ajiatu and Porha. He also stated that Porha is at a distance of ½ km. from Tin Forwa River. He also stated that the place where he had seen Raghu and Somra is at a distance of ¼ km. from the Checknaka. He also stated that he had chased the accused persons to some distance. He also stated that the police had come to the village after lodging of the FIR.

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P.W.6 Dr. Angraj Subash proved the postmortem report as Ext.4 and stated that he found the following ante mortem injury on the person of the deceased Kinwa Tana Bhagat: -

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(1) Lacerated wound just below right scapula- an entry wound size 1"x1/2"x12".

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(2) Lacerated wound just above the junction of sternum and lower part of neck Exit wound size-2"x1"x12".

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In the opinion of the doctor both the injuries were caused by fire Arm. Injury no.1 was wound of entry and injury no.2 was wound of exit. In the opinion of the doctor the firing was done from point blank range and the injuries were sufficient to cause death in the ordinary course of nature.

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PW.7 Anup Prasad Singh , the I.O. of the case stated in court that on 18.11.95 at about 9 A.M. informant Jauna Tana Bhagat came to the police station and gave his F.I.R. to the O/C Surendra Prasad Singh. On the basis of the said F.I.R. the O/C entrusted the investigation of the said case no. 75/95 to him.

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He had proved the F.I.R. to be in the hand writing of the O/C S.P.Singh as Ext.3. He stated that the statement was signed by the informant after it was read over to him and he found it correct. which was marked as Ext.3/1. He gave the details of the place of occurrence. He also proved the Inquest report as Ext.1/2. He also proved the seizure list of the blood-stained earth as Ext.2/2 to be in his signature and hand writing then he sent the dead body for postmortem examination to Sadar Hospital Gumla thereafter recorded the statement of the witnesses. He received the postmortem report and since he was transferred on 9.1.96. he returned the further investigation to the O/C.

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In his cross examination he stated that he cannot say the distance of Manatu village from the place of occurrence.

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P.W.8 B. Jha S.I. of police stated in court that on 9.1.96 the O/C Ghaghara entrusted the investigation of this case to him and since the investigation was complete after supervision of superior officer, he submitted charge-sheet.

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13. After discussion of the testimony of prosecution witnesses this Court thought it proper to first go into the finding so recorded by the learned trial Court as to assess, what is the basis of the conviction, so as to appreciate the arguments advanced by the parties.

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14. It is evident from the finding part that the discussion of the witnesses, altogether 8 in numbers, have been made, but the testimony of P.W. 3 and P.W. 5 have been taken into consideration emphatically, since they have been considered to be eye witnesses.

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15. The learned trial Court has found the witness P.W. 3 and P.W. 5 to be eye witness, since as per the learned trial Court, they had seen the accused fleeing away from the place of occurrence, hence they have been considered to be eye witnesses.

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16. The learned Court has also given finding that the testimony of P.W. 3 and P.W. 5 have been corroborated by the doctor who has been examined as P.W. 6.

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17. Thus, it is evident that the learned trial Court has convicted both the appellants primarily on the basis of testimony of P.W. 3 and P.W. 5, who have been considered to be an eye witness.

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18. This Court, in order to come to the just conclusion is now to consider

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(i) whether the consideration, so made by the learned trial Court, that P.W. 3 and P.W. 5 to be an eye witnesses can be said to be just and proper or not?

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(ii) Whether merely on the ground that the appellants have been found to be fleeing away from the place of occurrence as has been deposed by P.W. 3 and P.W. 5, can they be considered to be an eye witness even if the P.W. 3 and P.W. 5 had not witnesses of bullet shot alleged to be given by appellants upon the deceased?

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19. Both the issues since are interlinked, and as such is being considered together.

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20. This Court, in order to consider the aforesaid issue, needs to appreciate the deposition of P.W. 3 and P.W. 5, in order to assess as to whether they can be considered to be an eye witness or not.

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21. It is evident from the testimony of P.W. 3 and 5, that they had not seen the appellants giving bullet shot injury upon the deceased, rather they have seen the appellants while they were fleeing away from the place of occurrence.

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22. Further from medical evidence, it is evident that admittedly the murder of the deceased has been caused by the gun shot. It is also admitted from the testimony of P.W. 3 and P.W. 5 that they had not seen the giving the gun shot injury upon the deceased by the appellants.

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23. Therefore, the question would be that merely by seeing fleeing away from the place of occurrence, can P.W. 3 and P.W. 5 be claimed as an eye witness.

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24. The eye witness concept, as has been dealt with by the Hon’ble Apex Court that will be referred to such witnesses who have seen the commission of crime with his naked eye and his testimony, if found to be trustworthy from all corner without any iota of doubt. Reference in this regard be made to the Judgment rendered by the Hon’ble Apex Court in the case of Rai Sandeep @ Deepu alias Deepu V. State (NCT of Delhi) (2012) 8 SCC 21 wherein it has been observed that the “sterling witness” should be of very high quality and Caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. What would be relevant is the truthfulness of the statement made by such a witness. It should be natural and consistent with the case of the prosecution of the accused. The relevant paragraph of the aforesaid Judgment is being quoted as under:

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“22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other

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attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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25. Admittedly, P.W.3 and P.W. 5 is not the witness of the actual assault i.e. gunshot. This Court is conscious with the fact that even in absence of the eyewitness, conviction can be based upon the circumstantial evidence but in a case of circumstantial evidence the chain of circumstances must be completed.

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26. The Hon’ble Apex Court in the year 1952, in the judgment rendered in Hanumant Son of Govind Nargundkar vs. State of Madhya Pradesh [AIR 1952 SC 343] has laid down the parameters under which, the case of circumstantial evidence is to be evaluated, which suggests that: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances 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

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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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27. 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 Sharad Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC 116 and also in Musheer Khan alias Badshah Khan & Anr.

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Vs. State of Madhya Pradesh [(2010) 2 SCC 748.

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28. 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.

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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 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.

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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

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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:

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“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 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.] ” The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144] “

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29. 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

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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. There is no dispute regarding 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 but, 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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31. 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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32. The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect 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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33. 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 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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34. The authoritative judgment in the aforesaid context is the Sharad Birdhichand Sarda vs. State of Maharashtra , (supra) wherein the Hon’ble Apex Court has held 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

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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 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)

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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 time and situation.”

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35. The foremost requirement in the case of circumstantial evidence is

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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

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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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36. In Balwinder Singh v. State of Punjab [1995 Supp (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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37. 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

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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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38. 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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39. In Ujjagar Singh v. State of Punjab (2007) 13 SCC 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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40. The Hon’ble Apex Court in the case of Laxman Prasad @ Laxman vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of

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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. 4. 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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41. 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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42. Admittedly, We, after going through the impugned judgment, have not found the conviction is based upon the circumstantial evidence, rather the conviction is based upon the testimony of P.W. 3 and P.W. 5 who have been considered to be an eye witnesses by the learned trial court.

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43. The admitted position is that P.W. 3 and P.W. 5 has not seen these appellants giving gunshot injury from their naked eye, rather, when they have reached to the place of occurrence, these two persons have been seen to be fleeing away.

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44. The argument which has been advanced on behalf of the State is that the place was lonely and since the P.W. 5, the informant, had seen the appellants fleeing away from the place of occurrence, hence the presumption will be there, in absence of any third person at the place of occurrence, against the appellants in committing murder of the deceased, but we are not in agreement with such argument, reason being that merely on the presumption or conjecture, there cannot be any conviction so far as criminal jurisprudence is concerned, rather the principle is that the charge is to be proved beyond all reasonable doubt and if there is any iota of doubt, then the benefit of doubt is to be given to the person against whom the accusation has been made.

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45. 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., reported in (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

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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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46. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka , reported in (2017) 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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47. It requires to refer herein that 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., reported in

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

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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.

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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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49. The argument, which has been advanced by the prosecution, that there is a motive for commission of alleged crime, i.e., the land dispute in between the deceased and the appellants, but we, on consideration of the entire testimony, has not found which type of land dispute was there, since no details about the land dispute has been uttered by any of the witnesses in course of the trial.

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50. It needs to refer herein that in order to substantiate the accusation so made against the appellants, the Investigating Officer ought to have taken sincere endeavor to connect the connectivity of commission of crime with the appellant by recovery of bullet and so as to send the same to the Forensic Science Laboratory, as also the Pistol from which the gun shot injury has been said to be given, to connect the connectivity of firing of bullet from the same pistol, but that is lacking herein.

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51. It is further evident, on the basis of the testimony of the witnesses, that accusation although has been made against four accused persons, but there is not specific attributability has been alleged against the present appellants and merely on the basis of applying the Section 34 of the Indian Penal Code, the conviction has been inflicted against the appellants under Section 302IPC.

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52. It needs to refer herein that under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of

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principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.

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53. Thus, from the aforesaid settled position of law it is evident that Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.

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54. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime.

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55. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

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56. Further, the burden lies on the prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention of all at a prior concert. However, it is not required for the prosecution to establish that there was a prior conspiracy or premeditation; common intention can be found in the course of occurrence.

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57. To apply Section 34 apart from the fact that there should be two or more accused, two factors must be established: ( i ) common intention, and ( ii ) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. But if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked reference in this regard may be taken

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from the judgment rendered by the Hon’ble Apex Court in the case of Jai Bhagwan v. State of Haryana (1999) 3 SCC 102.

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58. As held by the Constitution Bench of the Hon’ble Apex Court in Mohan Singh v. State of Punjab AIR 1963 SC 174 , common intention denotes action in concert, and a prior meeting of minds— the acts may be different, and may vary in their character, but they are all actuated by the same common intention. However, prior concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted.

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59. It is admitted from the testimony of the witnesses taken up together that no specific attributability has been casted upon the accused persons so as to attract the ingredient of Section 34 of the Indian Penal Code.

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60. It further appears that the informant, who has been examined as P.W. 5, has narrated the prosecution version, stating therein that these appellants have given bullet shot injury. which he had seen. But in the cross-examination, he contradicted himself, wherein he

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has deposed that he had only seen the appellants fleeing away from the place of occurrence.

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61. This Court, therefore is of the view after going through testimony of P.W. 3 and P.W. 5 that they cannot be presumed to be an eye witness but the learned trial Court has considered them as an eyewitness, which according to our considered view is gross error committed by the learned trial Court.

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62. Admittedly culpable homicide is there, but the question is that who has committed the said crime, is to be ascertained by the prosecution not on the basis of conjecture and surmises, rather, the accusation is to be substantiated beyond all reasonable doubt, then only the conviction will be said to be just and proper.

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63. This Court, on the basis of the discussion made hereinabove, is of the view that due to lack of cogent evidence, as has been discussed hereinabove, the impugned judgment cannot be said to be proper.

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64. This Court applying the aforesaid principles and based upon the discussion made herein above, is of the view that the impugned judgment needs interference by this Court.

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65. Accordingly, the impugned judgment of conviction dated 18-121997 and order of sentence dated 19-12-1997 passed in S.T. No. 217 of 1996, arising out of Poraiyahat P.S. Case No. 105 of 1995 by the Court of learned Additional Sessions Judge, Gumla are set aside.

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66. Consequent thereto, the instant criminal appeal is allowed. The appellant is discharged from the criminal liability.

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67. In the result, both the appellants are discharged from the criminal liability.

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(Sujit Narayan Prasad, J.)

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(Rajesh Kumar, J.)