Mansoor Mian  Nanhu Mian And Ors. Vs State of Bihar

2025:JHHC: 17949-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B) No.96 of 1997(R)

[Against the Judgment of conviction dated 19.03.1997 and Order of sentence dated 20.03.1997, passed by the learned 1^st Additional Sessions Judge, Giridih, in Sessions Trial No.427 of 1993]

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Mansoor Ansari @ Nanhu Mian

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Mumtaz Mian @ Munna, both sons of Ismail Mian residents of village – Kadwari, Charkiabad

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Samshul Ansari, son of Madi Ansari, resident of village – Dhainpura, all under P.S. - Dhanwar, District - Giridih

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….. Appellants

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Versus

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The State of Bihar (Now Jharkhand)

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Narayan Yadav, S/o Ganpat Mahto of Vill – Charkiabad, P.S. - Dhanwar, Dist. - Giridih ..... Respondents

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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. Prabhash Kumar, Advocate Mr. Manish Sharma, Advocate For the State : Mr. Bhola Nath Ojha, Spl.P.P

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Order No.38/Dated: 04th July, 2025

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1. The instant appeal is directed against the Judgment of conviction dated 19.03.1997 and order of sentence dated

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20.03.1997, passed by learned 1^st Additional Sessions Judge, Giridih, in Sessions Trial No.427 of 1993, arising out of Dhanwar P.S. Case No.86 of 1993 (G.R. No.1215 of 1993), registered under Sections 302/ 34, 120B and 201 of the Indian Penal Code by which all the three appellants have been convicted under sections 302/ 34/ 201 of the Indian Penal Code (IPC) and have been directed to undergo imprisonment for life for the offence under Sections 302/

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2025:JHHC: 17949-DB 34 IPC and also sentenced to undergo rigorous imprisonment for three years for the offence under Section 201 I.P.C. All the sentences were directed to run concurrently.

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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 institution of prosecution case. 3. The prosecution story in brief as per the allegation made in the First Information Report reads as hereunder: - 4. According to prosecution case, as given in the First Information Report (F.I.R.), in short, is that on 09.07.1993 the elder brother of the informant Gurucharan Yadav son of Ganpat Mahto was executing the work in a pond at village Bhaluai through the Block under “ Jaldhara Scheme” at the relevant time. On 09.07.1993 the deceased along with accused Nanhu Mian son of Ismail Mian had gone to Block Office, Dhanwar and while returning from the Block Office, they got down at about 6 P.M at village Balhara. Both of them started from Balhara on cycle from the village Charkhiawar (Kodwari) as stated by a shop-keeper Basudeo Rai. However, they did not return. The informant Narayan Yadav who happens to be the brother of the deceased along with others started searching for them at the places of their relatives. But, they were traceless. The informant also asked Ismail Mian, the father of the accused Nanhu Mian,

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who told him that his son had gone to Lucknow in connection with his employment. The informant also made a telephonic contact with the Malik of Nanhu Mian at Lucknow. That Malik belongs to his community. The Malik told him that Nanhu Mian had come before five days, and was working at Barailly. The informant’s brother Sukhdeo Yadav and his mama-sasur Umesh Yadav of village Chandranagar went to search them at Lucknow where the Malik told them that Nanhu Mian had not reached there. The prosecution case is that since the date of occurrence Nanhu Mian and his brother Munna Mian had absconded from their house there was a suspicion that Nanhu Mian, his brother Munna Mian and their relatives had kidnapped the deceased and in furtherance of their common intention it is likely that they had killed him. There was hulla-gulla six months prior to the occurrence between the parties. However, cordial relationship had developed between them. It is likely that this cordial relationship was intentional in order to deceive the deceased.

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On the basis of the fardbeyan of the informant, Narayan Yadav, this case was registered at Dhanwar P.S. The fardbeyan was recorded by the O/C, Dhanwar P.S., S.I Anil Kumar Dubedi, who had taken up the investigation of this Case .

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5. After completing investigation, the police submitted charge sheet against six accused persons including the appellants and the learned Chief Judicial Magistrate,

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Giridih took cognizance in the case and committed the case to the court of Sessions where on 05.02.1994 charge has been framed against the accused persons under Sections 120B/ 302/ 34/ 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 17 witnesses, namely, P.W-1 Nunmani Mahto, P.W-2 Jay Prakash Yadav, P.W- 3 Sukhdeo Yadav, (informant’s brother), P.W-4 Khago Yadav, P.W-5 Gulo Mahto, P.W-6 Pramila Devi (widow of the deceased), P.W-7 Dr. Kaushlendra Kumar, P.W.-8 Narayan Yadav (the informant), P.W. – 9 Narayan Chaudhary (seizure list witness), P.W. – 10 Ashok Kumar Yadav (informant’s brother), P.W. – 11 Umesh Kumar Yadav, P.W. – 12 Baleshwar Yadav, P.W. – 13 Bhimlal Yadav, P.W. – 14 Basudeo Rai, P.W. – 15 Ganpat Mahto (father of the deceased), P.W. – 16 Om Prakash Singh (Constable) and P.W. – 17 Anil Kumar Dubedi (Investigating Officer).

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7. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statements 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/ 34, 120B and 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 counsel for the appellants:

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9. Learned counsel appearing for the appellants, has taken the following grounds in assailing the impugned judgment of conviction:-

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(i) The conviction is based upon the applicability of Section 27 of the Indian Evidence Act, 1872, since, the dead body of the deceased was recovered on the confession made by the appellant No.2 namely, Mumtaz Mian @ Munna. It has been contended that although the confessional statement of the appellant No.2 was recorded, but, the said confession has not been brought on record by the Investigating Officer (I.O), since, it has not been exhibited and hence, the principle of applicability of Section 27 of the Indian Evidence Act will not attract in the present case in absence of confessional statement having not been brought on record.

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(ii) The conviction so far as it relates to the appellant Nos.1 and 2 are concerned, there is no evidence said to be there of committing murder of the deceased, rather, so far as Samshul Ansari is concerned, merely on the basis of recovery of one cycle, he has been convicted. The said cycle has neither been produced in the Test Identification

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Parade (TIP) nor any evidence has been brought on record to connect the said cycle which belongs to the appellant No.3, namely, Samshul Ansari.

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(iii) The ground has been taken so far as the appellant No.1, namely, Mansoor Ansari @ Nanhu Mian, is concerned, save and except, the deceased was last seen with the appellant No.1, no other incriminating evidence has come against him.

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(iv) The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the appeal, therefore, is fit to be set aside by interfering with the judgment of conviction, since, the learned trial court has not appreciated the Section 27 of the Indian Evidence Act and other related provisions of the said Act before coming to the conclusion by convicting these appellants.

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Submission of the learned Special Public Prosecutor for the State:

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10. Per contra, Mr. Bhola Nath Ojha, learned Special Public Prosecutor appearing for the State, has defended the impugned judgment by taking the following grounds:-

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(i) The learned trial court has passed the impugned judgment after taking consideration the testimony of all the witnesses in entirety including the Investigating Officer and the Doctor.

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(ii) The ground has been taken that the dead body of the deceased was recovered on the

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disclosure made by the appellant No.2 and as such correctly the provisions of Section 27 of the Indian Evidence Act has been applied convicting the appellant No.2. So far as the appellant No.3 is concerned, the cycle was recovered on his identification which was used in the commission of crime which has been taken into consideration by the learned trial court. So far as the conviction of Mansoor Ansari, the appellant No.1 is concerned, it has been contended that he was last seen with the deceased and the same was taken into consideration by the learned trial court and considering the commission of crime to be one transaction, all the three appellants have been convicted and hence, there is no error in the impugned judgment of conviction.

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Analysis

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11. We have heard learned counsel for the parties and gone through the findings recorded by the trial court in the impugned judgment as also the testimony available in the trial court record along with list of exhibits.

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12. This Court, on consideration of the argument advanced on behalf of the parties, is required to consider :-

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(i) Whether in absence of confessional statement, having not been exhibited, can Section 27 of the Indian Evidence Act, 1872 will be made applicable as has been done by the learned trial

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court while convicting the appellants herein and by also taking the allied grounds ?

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(ii) Whether the conviction of appellant No.1, namely, Mansoor Ansari @ Nanhu Mian can be said to be just and proper merely because he was last seen with the deceased having not substantiated by connecting the chain of commission of crime by the said appellant?

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(iii) Whether the conviction of appellant No.3, namely, Samshul Ansari, only on the basis of recovery of cycle without any proper investigation of implication of the said cycle with the commission of crime can be said to be just and proper?

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(iv) Consideration of all the three appellants are being made separately because basis of their conviction is different, but, before considering the aforesaid issues, the background of the prosecution case based upon that, prosecution has been initiated is to be referred herein :- On 09.07.1993 the deceased Gurucharan Yadav son of Ganpat Mahto was executing the work in a pond at village Bhaluai through the Block under “ Jaldhara Scheme” at the relevant time. On 09.07.1993 the deceased along with accused Nanhu Mian son of Ismail Mian had gone to Block Office, Dhanwar and while returning from the Block Office, they got

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down at about 6 P.M at village Balhara. Both of them started from Balhara on cycle from the village Charkhiawar (Kodwari) as stated by a shopkeeper Basudeo Rai. However, they did not return. The informant Narayan Yadav who happens to be the brother of the deceased along with others started searching for them at the places of their relatives. But, they were traceless. The informant also asked Ismail Mian, the father of the accused Nanhu Mian, who told him that his son had gone to Lucknow in connection with his employment. The informant also made a telephonic contact with the Malik of Nanhu Mian at Lucknow. That Malik belongs to his community. The Malik told him that Nanhu Mian had come before five days, and was working at Barailly. The informant’s brother Sukhdeo Yadav and his mama-sasur Umesh Yadav of village Chandranagar went to search them at Lucknow where the Malik told them that Nanhu Mian had not reached there. The prosecution case is that since the date of occurrence Nanhu Mian and his brother Munna Mian had absconded from their house there was a suspicion that Nanhu Mian, his brother Munna Mian and their relatives had kidnapped the deceased and in furtherance of their common intention it is likely that they had killed him. There was hulla-gulla six months prior

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to the occurrence between the parties. However, cordial relationship had developed between them. It is likely that this cordial relationship was intentional in order to deceive the deceased.

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13. 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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14. The prosecution has altogether examined 17 witnesses, namely, P.W-1 Nunmani Mahto, P.W-2 Jay Prakash Yadav, P.W- 3 Sukhdeo Yadav, (informant’s brother), P.W-4 Khago Yadav, P.W-5 Gulo Mahto, P.W-6 Pramila Devi (widow of the deceased), P.W-7 Dr. Kaushlendra Kumar, P.W.-8 Narayan Yadav (the informant), P.W. – 9 Narayan Chaudhary (seizure list witness), P.W. – 10 Ashok Kumar Yadav (informant’s brother), P.W. – 11 Umesh Kumar Yadav, P.W. – 12 Baleshwar Yadav, P.W. – 13 Bhimlal Yadav, P.W. – 14 Basudeo Rai, P.W. – 15 Ganpat Mahto (father of the deceased), P.W. – 16 Om Prakash Singh (Constable) and P.W. – 17 Anil Kumar Dubedi (Investigating Officer).

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15. P.W.-1, Nunmani Mahto, appears to be an independent witness. The dead body had been discovered in Mahulia jungle in his presence. The dead body was kept in a gunny bag. He is also an inquest witness. In cross examination he has admitted that the dead body was decomposed.

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16. P.W.-2, Jay Prakash Yadav, also appears to be an independent witness. He is not related to the informant. He

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has seen the deceased and the accused Mansoor Ansari @ Nanhu Mian leaving the village on the relevant day in the morning. He had also seen them together on the same day at Balhara in the evening. Therefore, he is a witness who had last seen the deceased with the accused Mansoor at Balhara in the evening. It is said that thereafter the deceased was not seen alive. This witness has also stated in clear words that six months prior to the occurrence the brother of the deceased namely, Narayan Yadav had teased the wife of the accused Mansoor Alam. He has also stated about the motive leading to the murder of the deceased. He has withstood the test of cross examination.

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17. P.W.-3, Sukhdeo Yadav, is the brother of the deceased. He has stated about the “ Jaldhara Scheme” and the small contracts taken by the deceased for the same at Dhanwar Block. He had also seen the deceased leaving the village on the related date in the morning. He was present at his house at that time. Both the accused Mansoor and the deceased had left the village together on cycle for Dhanwar. He has also said that the cycle was kept at the shop of Basudeo Rai at Balhara. This witness has also stated that his brother Narayan Yadav had teased the wife of the Mansoor. There was a panchayati , and Narayan Yadav was fined. Payment was made by his father. Thereafter, both the deceased and Mansoor became friends. But, this friendship was deceptive with a certain motive. He has also stated about the inquiries made by him

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to trace out the deceased. He inquired from Ismail Mian and learnt that the accused Mansoor had gone to Lucknow. He had made a contact with the seth at Lucknow through telephone. Thereafter, he went to Lucknow along with Umesh Kumar Yadav to search for his brother-deceased.

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In cross examination, he has stated that he does not remember the telephone number of the Seth at Lucknow. There are two routes to go to Dhanwar from his village. One route goes through Balhara and the other through Ghorthambha.

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18. P.W.–4, Khago Yadav, has stated that on the relevant day at 06 P.M., he had seen the deceased and the accused Nanhu Mian (Mansoor) together at Balhara. He had gone to Balhara with Jay Prakash Yadav in the evening.

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In cross examination, he has stated that Jay Prakash Yadav (P.W.-2) is a rural doctor. He had gone to purchase medicines at Balhara.

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19. P.W.-5, Guli Mahto, has been tendered. His evidence is of no consequence.

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20. P.W.–6, Pramila Devi, is the widow of the deceased. She has stated that her husband and the accused Mansoor left the village together on the relevant date in the morning on cycle for Dhanwar Block to get money for the scheme. She has stated that her husband had kept the cycle at Balhara and then went to Dhanwar by bus. She has also stated about the return of her husband to Balhara. According to her, the dead body was recovered after 27

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days from the mine-well.

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21. P.W-7, Dr. Kaushlendra Kumar, was posted on 07.08.1993 at Sadar Hospital, Giridih as C.A.S. He held the post-mortem examination on that day at 03:00 P.M., over the dead body of the said Gurucharan Yadav. Dr. B.P Singh and Dr. A.K. Sahay also took part in the post-mortem Examination as observers. He has stated about the findings of the post-mortem examination. He has proved the postmortem report marked Ext.-3. He has also identified the signatures of Dr. A.K Sahay and Dr. B.P Singh marked Exts.- 2/1 and 2/2 and his own signature marked Ext.-2.

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In cross examination, he has stated that daggers may be of different types. He has not mentioned the dimension of the injury.

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22. P.W-8, Narayan Yadav, is the informant. He has stated that the deceased and the accused Nanhu Mian returned from Dhanwar by C.T.A Bus together at Balhara Chowk on the relevant evening. They had only one cycle with them. The cycle was taken from the shop of Basudeo Rai. Thereafter, both the deceased and the accused Mansoor started for their village home. But, they did not return to the village. He has further stated that the deceased had gone to Dhanwar Block in the morning along with the accused Nanhu Mian on the cycle. He started searching for his brother. He asked Ismail Mian, the father of the accused Nanhu Mian. Ismail Mian told him that his son had gone to Lucknow. He has also stated about the telephonic

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talk. He has stated that Sukhdeo (his brother) and Umesh Ji, mama-sasur of Sukhdeo, went to Lucknow. But, the deceased was not found and they returned from Lucknow. His brother had put on full pant of ghee-coloured and shirt. He had iron ring as well. The Atlas cycle was black coloured which was recovered at Chunkho.

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In cross-examination, he admitted that he was not present at Balhara in the evening. He was also not present at the time of telephonic talk. He has no document regarding the scheme. He also made search for his deceased brother.

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23. P.W.-9, Narayan Chaudhary, the Sarpunch , Gadi Gram Punchayat, is a seizure-list witness. Black coloured Atlas cycle was recovered by the police from the house of Rafique Mian at Gangapur Chunkho in his presence.

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24. P.W.-10, Ashok Kumar Yadav, is the brother of the informant, has stated that his brother deceased and the accused Mansoor together left the village on black coloured Atlas cycle for Dhanwar Block in the morning. The deceased has put on a Matmaila coloured full pant. He had an iron ring in his finger. He also had three notices in the name of himself, Nathu Yadav and Bhikhan Yadav. He had learnt about the return of the deceased brother in the evening by bus at Balhara. He had also learnt that the deceased and the accused Mansoor proceeded, thereafter, on cycle for their village home. The police recovered the dead body of deceased at the instance of the accused

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Munna Mian. The cycle was recovered at the instance the accused Samsul Mian from the house of Rafique Mian at village Chunkho. He had purchased that cycle from Pankaj Stores, Ghorthambha.

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In cross examination he has stated that there are many shops at Balhara. He had searched for his brother at many places such as Ghorthambha, Arkhango, Chihutia etc. 25. P.W.-11, Umesh Kumar Yadav is the mama-sasur of Sukhdeo who had accompanied Sukhdeo to Lucknow. He has also stated that the dead body of Gurucharan Yadav was recovered at the instance of the accused Mumtaz Mian @ Munna.

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In cross examination, he could not say with whom he had talked at Lucknow. He does not remember the telephone numbers. No sanha was lodged prior to his departure to Lucknow.

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26. P.W.-12, Baleshwar Yadav, has stated that the dead body of Gurucharan Yadav was recovered in Mahulia Jungle at the instance of Mumtaz Ansari. He is an inquest witness. 27. P.W.-13, Bhimlal Yadav, is also an inquest witness. The dead body was discovered in his presence. 28. P.W.-14, Basudeo Rai, has stated that the deceased had come alone to his shop at 8:00 A.M., and kept his cycle there. The deceased thereafter went to Dhanbar. On the same day, he again came to his shop at Balhara in the evening at 4:00 P.M. He has denied that both the deceased and the accused Mansoor had come together to his shop,

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and again they had come together in the evening to take the cycle from him.

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In cross examination, he has admitted that there are several shops at Balhara. There is no bus at Ghorthambha. He has been declared hostile by the prosecution.

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29. P.W.-15, Ganpat Mahto, is the father of the deceased. He has stated that the deceased had informed him on the relevant morning when he was going to Dhanwar Block with Nanhu Mian. The deceased had put on Maila (dirt) coloured full pant with a marking "Surat" and had an iron ring. He had left the village on Atlas cycle. He learnt that the deceased had kept the cycle at the place of Basudeo. He also learnt that after taking cycle, the deceased had proceeded in the evening. He also made inquiry from Ismail Mian. There was friendship between Nanhu Mian and his deceased son. He had suspected that Nanhu Mian and his brothers had killed his son. Subsequently, he learnt that the dead body of his son had been discovered by the police.

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In cross examination, he has stated that the written report in pen of Sukhdeo was given at the police station. 30. P.W.16, Om Prakash Singh, is the Constable, who has identified the signature and writing of Ganesh Pandey, S.I. before the Court.

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31. P.W.-17, Anil Kumar Dwivedi is the Investigating Officer, has stated that on the basis of the confessional statement of the accused Samsul Ansari, the house of

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Rafique Mian alias Ghutka was raided at village Gangapur Chunkho. This Rafique Mian was a friend of accused Ibrahim Mian. The I.O. has further stated that the cycle was recovered from the house of Rafique Mian in the presence of P.W.-9, Narayan Choudhary and Laljeet Ram. The seizure-list was prepared.

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32. The learned trial court on consideration of the testimony of the witnesses altogether has come out with the finding that the prosecution has been able to prove the prosecution story beyond all reasonable doubt and while doing so, Section 27 of the Indian Evidence Act, 1872 has been made applicable on the ground of recovery of the dead body on the disclosure made by the appellant No.-2. The appellants thereafter have been convicted for the offence under Sections 302/ 34 and 201 of the Indian Penal Code.

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33. The Court is now proceeding to appreciate the arguments advanced on behalf of the appellants regarding the applicability of Section 27 of the Indian Evidence Act, and conviction merely on the basis of recovery of cycle from the possession of appellant No.3.

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34. So far as the applicability of Section 27 of the Indian Evidence Act is concerned, the law is well settled that the conviction can be based upon the applicability of Section 27 which has been carved out by an inception to Sections 21 to 26 of the Indian Evidence Act, in order to deal with a case where there is no testimony of the eye witnesses. The

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aforesaid provisions provide that the conviction can also be based upon the discovery of the incriminating materials on the disclosure made by the concerned accused person while he is in custody. Section 27 of the Indian Evidence Act, 1872 reads as under :-

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“ Provided that, when any fact is deposed to as

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discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

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35. There is no dispute about the position of law as mandated under Section 27 of the Evidence Act that the same is exception to Sections 25 to 26, which prohibit the proof of a confession made before the police officer while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not", which relates distinctly to the fact thereby discovered to be proved. Thus, even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27, it is only that part distinctly relates to the discovery which is admissible.

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36. Thus, the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. It is also settled that the Court must disregard the inadmissible part of the

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statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled proposition of law that discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence.

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37. Reference with respect to the aforesaid settled proposition may be made to the judgment of the Hon'ble Apex Court in the case of Earabhadrappa v. State of Karnataka , AIR 1983 SC 446 . Paragraph-7 of the said judgment reads as under:

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"7. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulkuri Kotayya v. King-Emperor [(1947) 74 IA 65 :AIR 1947 PC 67 : 230 IC 135] :

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"... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.""

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38. Further, in Nisar Khan @ Guddu v. State of Uttaranchal , 2006 (9) SCC 386 , the Hon'ble Apex Court at paras-6 to 8 has been pleased to observe which read as under:

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"6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17-121999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well- settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 to 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.

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7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place

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which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated.

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8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused."

¶135

39. In Anil v. Admn. of Daman & Diu [(2006) 13 SCC 36] the Hon'ble Supreme Court held as under:

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"23. The information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus, admissible in evidence."

¶137

40. Further, the Hon'ble Apex Court in State of H.P v. jeet Singh [(1999) 4 SCC 370] has opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence.

¶138

41. The Hon'ble Apex Court in Selvi v. State of

¶139

Karnataka [ (2010) 7 SCC 263] has held as under:

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"133.----- However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which "furnish a link in the chain of evidence" needed for a successful prosecution. This provision reads as follows:

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'27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'

¶144

134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda [Miranda v. Arizona, 1966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384 US 436 (1966)] warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3)."

¶145

42. In Madhu v. State of Kerala (2012) 2 SCC 399,

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the Hon'ble Apex Court while discussing the mandate of Section 27 of the Evidence Act held as under:

¶147

"49. As an exception, Section 27 of the Evidence Act

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provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered...". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act."

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43. Thus, it is evident that Section of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the Hon'ble Apex Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828] .

¶152

44. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must

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depend on the exact nature of the fact discovered to which such information is required to relate. The ban was imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.

¶156

45. The object of the provision, i.e., Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. Under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him.

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This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer.

¶160

46. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved.

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47. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information.

¶162

48. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the

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information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered".

¶166

49. Thus, it is evident from the aforesaid provisions of Section 27 having been interpreted by the Hon'ble Apex Court in the judgment referred hereinabove that the conviction can be there if there is discovery of any incriminating materials on the disclosure made by the concerned accused person while he is in police custody, meaning thereby, the person concerned is to be in police custody and confessional statement is to be there of making disclosure of incriminating materials hidden in the particular place. The Court is required to consider the aforesaid aspect of the matter, but, sine qua non for the same is that the confessional statement is to be appreciated, since, under the provisions of Section 27 of the Indian Evidence Act, the evidentiary value will only be admissible to the extent of recovery made as per the disclosure made in the confessional statement and not the entire part of the confession.

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50. In the instant case so, many documents have been exhibited, as available in the trial court record. For the reference, list of documents marked as exhibits are being referred herein for appreciation of the issues involved in the present case, which is just and proper for appreciation of the arguments advanced on behalf of the appellants :-

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i. Ext.-1-Signature of Nunmani Mahto on inquest report (Carbon Copy)

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ii. Ext.-2 to 2/2- signatures of Dr. K. Kumar, Dr. A.K. Sahay and Dr. B.P Singh on Post Mortem Report

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iii. Ext.-3-post mortem report

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iv. Ext.-4 to 4/3- The signature of Narain Chandani and Lajit Ram carbon copy of seizure-list and original seizure-list

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v. Ext.-5- a receipt of cycle vi. Ext.-1/1-The signature of witness Baleshwar Yadav on Inquest Report (Carbon Copy) vii. Ext.-1/2-The signature of witness Bhim Lal Yadav on Inquest Report (Carbon Copy) viii. Ext.-6- A written exhibit list by Ganesh Pandey

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ix. Ext.-7- Endorsement of A.K. Diwedi on written Report

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x. Ext.-7/1-the signature of A.K. Diwedi on formal Fir

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xi. Ext.-8- Formal FIR xii. Ext.-9-The written report xiii. Ext.-10-Carbon Copy of Inquest Report xiv. Ext.-11-Seizure list xv. Ext.-11/1 Signature of Mansoor on seizurelist.

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51. It is admitted from the list of exhibits that the confessional statement has not been exhibited, meaning thereby, confessional statement of the appellant No.-2 has not been placed before the trial court for its appreciation so as to apply the stipulation made under Section 27 of the Indian Evidence Act for the purpose of conviction on the ground of recovery based upon the disclosure made in the confessional statement. The confessional statement will be the basic for the purpose of applicability of Section 27 of

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the Indian Evidence Act, and if there is any recovery made on the basis of such disclosure, then such disclosure will be the consequent of the confession, but the question is that if the confessional statement which has not been brought on record by the Investigating Officer, then how can be the conviction be said to be based upon Section 27 of the Indian Evidence Act, in absence of the foundational document, i.e., the confessional statement. Exactly the case herein is the same, since, it is admitted case of the prosecution, even admitted by Mr. Bhola Nath Ojha, learned Special Public Prosecutor, in course of the argument, who after going through the trial court record, has admitted the fact that the confessional statement has not been exhibited. We have also found from the trial court record that the confessional statement has not been exhibited. The confession, since, was made by the appellant No.-2 and the said confession has been admitted by the learned trial court leading to recovery of the dead body which is the basis of his conviction.

¶182

52. This Court, is of the view that in absence of the confessional statement having not been marked and brought on record, hence, the same ought to have been taken into consideration by the learned trial court that vital aspect of the matter and having not done so, rather, come out with the finding that the investigation has not properly been conducted, learned trial court has committed serious error due to the reason that the court of law is not the

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extension counter of the prosecution, if the prosecution has not conducted the investigation properly, the benefit of doubt is to be given to the accused and not to the prosecution on the principle that a wrong doer cannot be allowed to take the advantage of its own ground.

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53. This Court, therefore, is of the view that the judgment of conviction and finding so recorded by the trial court, so far as the appellant No.-2, namely, Mumtaz Mian @ Munna, is concerned, suffers from error and hence, not sustainable.

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54. So far as conviction of appellant No.-1, namely, Mansoor Ansari @ Nanhu Mian, is concerned, his conviction is based upon last seen theory. We have perused the aforesaid finding and found that the learned trial court has connected the culpability said to be committed by the appellant No.1 only because that he was last seen with the deceased. The conviction on the basis of last seen theory, the proper consideration is to be there by the learned trial court on the basis of principle of completion of chain and the moment the chain will break, there cannot be conviction on the basis of last seen, since, it is based upon circumstantial evidence.

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55. 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

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

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57. 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 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 :

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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 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

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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] “

¶210

58. 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.

¶211

59. 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

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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.

¶215

60. 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. 61. 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

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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:

¶219

“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.”

¶220

62. 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

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fully established:

¶224

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

¶225

(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,

¶226

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

¶227

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

¶228

(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.

¶229

63. The authoritative judgment in the aforesaid context is

¶230

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

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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. Paragraphs155, 156, 157, 158 and 159 of the said judgment read as under:

¶234

“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.”

¶235

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

¶236

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

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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.

¶240

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.”

¶241

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

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definiteness, and (3) the circumstance is in proximity to the time and situation.”

¶245

64. 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:

¶246

“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.”

¶247

65. 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:

¶248

“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

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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.”

¶252

66. 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.

¶253

67. 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:

¶254

“39. … in a case depending largely upon circumstantial evidence, there is always a danger

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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.”

¶258

68. 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:

¶259

“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.”

¶260

69. 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:

¶261

“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.

¶262

4. Thus, if the High Court found one of the links to

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be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with.”

¶266

70. 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.

¶267

71. This Court, applying the aforesaid proposition of law, and the evidence which has been brought by the prosecution for the purpose of holding the case against the appellant No.1, namely, Mansoor Ansari @ Nanhu Mian, said to be beyond all reasonable doubt and according to our considered view that merely on the basis of last seen, there cannot be any conviction, rather, proper corroboration by completion of chain is to be there by the prosecution. We have not found any endevour having been conducted by the I.O by connecting culpability said to be committed by the appellant No.1 in commission of the crime, since, there is no recovery of any incriminating materials, no arms and ammunition have been recovered and sent to the Forensic Science Laboratory (F.S.L).

¶268

72. This Court, therefore, is of the view that merely on the basis of last seen theory, the appellant No.1, since, has

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been convicted, hence finding so recorded by the learned trial court convicting the appellant No.1, Mansoor Ansari @ Nanhu Mian, therefore, suffers from error and hence, not sustainable in the eye of law.

¶272

73. So far as the conviction of appellant No.3, namely, Samshul Ansari, is concerned the basis of conviction as per the finding recorded by the learned trial court is that he has been convicted on the basis of recovery of cycle, which according to the prosecution was utilized in the commission of crime. The said cycle was identified by P.W.10. We have gone through the testimony of P.W.-10 and found there from that no endevour has been taken by any of the witnesses to connect the connectivity of the said cycle in commission of crime. There was no TIP of the said cycle or no witnesses has been brought by the prosecution to establish the aforesaid fact that the cycle was used in commission of crime.

¶273

74. This Court, in absence of material evidence since the cycle belongs to the deceased, no corroborative evidence whether the cycle belongs to the deceased or not and that cycle was recovered on the basis of confession also made by said Samshul Ansari, but, it is admitted case of the prosecution that the confession so made by Samshul Ansari has also not been brought on record, therefore, the case of Samshul Ansari is on identical footing as that of appellant No.2, hence, he is also be given the benefit of doubt. He is also to be treated at par with the appellant No.2.

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75. The law is also settled that merely on the basis of presumption and conjecture, there cannot be conviction of a person snatching away the right to life as directed under Article 21 of the Constitution of India, rather the principle is that the conviction is to be based upon the evidence as produced by the prosecution witness if found to be proved beyond all reasonable doubt.

¶277

76. 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:-

¶278

"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."

¶279

77. Likewise, the Hon'ble Apex Court in the case of

¶280

Krishnegowda & Ors. Vrs. State of Karnataka ,

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reported in (2017) 13 SCC 98 , has held at paragraph-26 as under:-

¶284

"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."

¶285

78. 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 (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under: -

¶286

"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

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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."

¶290

79. 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:-

¶291

"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.

¶292

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.---

¶293

80. This Court, after having discussed the factual as well as the legal issues as discussed above and on the principle that there cannot be any conviction if the prosecution has not proved the charge said to be proved beyond all reasonable doubt, is of the view that the impugned judgment needs interference.

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81. Accordingly, the Judgment of conviction dated 19.03.1997 and order of sentence dated 20.03.1997, passed by learned 1^st Additional Sessions Judge, Giridih, in Sessions Trial No.427 of 1993, arising out of Dhanwar P.S. Case No.86 of 1993 (G.R. No.1215 of 1993), is, hereby, quashed and set aside.

¶297

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

¶298

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

¶299

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

¶300

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

¶301

(Sujit Narayan Prasad, J. )

¶302

(Rajesh Kumar, J.)

¶303

Jharkhand High Court, Ranchi Dated, the 04^th July, 2025 Ravi-Chandan /- AFR

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Mansoor Mian Nanhu Mian And Ors. v. State of Bihar

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Mansoor Mian Nanhu Mian And Ors. v. State of Bihar

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