Gour Mani Roy VsState of Tripura

Utpalendu Bikas Saha, J.—This appeal filed by the two accused, namely, Gour Mani Roy and Md. Hasan Ali, is directed against the judgment, dated 20.7.2011, passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in Sessions Trial No. 05 (NT/D) of 2009 whereby the learned trial Court convicted the accused of having committed offence under Sections 302/34, IPC. The learned trial Court on conviction sentenced them to undergo imprisonment for life and also to pay a fine of Rs. 10,000/- each, in default of payment of fine, the accused were also directed to undergo further R.I. for a period of six months. The prosecution case is that one Sajal Nath (P.W. 1) lodged a written complaint to the Officer In-charge of Kadamtala Police Station on 7.10.2008 at about 0705 hours to the effect that on 6.10.2008, in the morning, his brother Sri Santosh Nath aged about 29 years went out of his house for his works, but he did not return in the afternoon and in the evening, he (Sajal Nath) came to Kadamtala market and learnt that his brother was taking tea in the tea stall of Bimal Nath with his friend Sabhendu Nath (P.W.4) and at that time, the accused Gour Mani came and called him. Accordingly, Santosh went with him at about 7.00 p.m. and he did not return home at night.

On the next day morning, i.e., on 7.10.2008, the informant came to know that a dead body was lying at Kadamtala hospital. He went to the said hospital and found that it was the dead body of his brother Santosh and there were several injuries on the backside of the head of his brother caused by sharp weapon and the head was almost severed.

On receipt of the FIR lodged by the P.W. 1, Officer In-charge, Kadamtala P.S. (P.W.21) registered a police case being Kadamtala PS. case No. 35 of 2008 u/s 302, IPC. The investigation was carried out by the Officer In-charge, Kadamtala P.S. (P.W. 21). At the time of investigation, he examined the accused persons and thereafter arrested them. He also examined the witnesses and finally submitted the charge-sheet against the accused appellants under Sections 302/34, IPC.

Both the accused persons faced trial on commitment of the case before the learned Addl. Sessions Judge, North Tripura, Dharmanagar as the case was exclusively triable by the Court of Session. Learned trial Court framed charge u/s 302 read with 34 IPC and contents of the charge were read over and explained to the accused persons in Bengali to which they pleaded not guilty and claimed to be tried.

Thereafter, the prosecution examined as many as 21 witnesses to prove its case against the accused persons. Out of 21 witnesses, P.Ws. 2, 3, 4, 5, 6, 7, 8, 10, 14 and 19 are the witnesses of various circumstances, upon which the prosecution relied upon. P.W. 9, 15, and 16 are tendered by the prosecution. P.W. 11 is the scribe of the complaint/first information. P.W. 20 is the Medical Officer who has done the post-mortem examination and P.W. 21 is the I.O. of the case.

On completion of recording of evidence, the learned trial court examined the accused persons u/s 313, Cr.P.C. to which they denied the veracity of all the prosecution evidence and also declined to adduce any evidence in support of their defence. Their case is of total denial and that they were falsely implicated in this case.

The learned trial court upon hearing the parties and on going through the evidence of the witnesses and exhibited documents and materials available before it convicted the accused appellants and sentenced them by the judgment and order as stated supra.

Being aggrieved by and dissatisfied with the aforesaid order of sentence, the accused appellants have preferred the instant appeal,

Admittedly in the instant case, there is no eye-witness to the occurrence. The entire prosecution case is based on circumstantial evidence. The law relating to circumstantial evidence is by this time settled and it has been reiterated by the Apex Court that in a case of circumstantial evidence, the prosecution has to prove the circumstances and link the chain of those circumstances in such a manner that those circumstances led to only one conclusion, i.e. the guilt of the accused. If there is chance of any doubt or there is chance of any other person having committed the offence, the accused must be given the benefit of doubt.

In view of the above, we have decided the case in hand keeping in mind the principle laid down by the Apex Court in its various cases.

We have heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellants as well as Mr. R.C. Debnath, learned Addl. P.P. who appears for the respondent-State.

The trial Court has relied upon the following pieces of circumstantial evidence while convicting the accused persons:

(a) The facts that the deceased was last seen together with the accused Gour Mani at about 7.30/8.00 p.m. in the tea stall of Bimal Nath at Kadamtala market and thereafter he was not seen till his dead body was found in the paddy field about 1 K.M. away on the same night.

(b) The facts of recovery of the weapon of the offence, i.e., dao at the instance of the accused persons from a tilla belonged to one Abdul Gani at Julaibassa.

(c) The facts of recovery of two by-cycles which was used by the accused persons on the night of the murder and the recovery of the footwear of the accused persons near the dead body of the deceased.

(d) The facts that the mobile set of the deceased was recovered from the relative''s house of the accused Gour Mani at the instance of the accused and as shown by him.

(e) The facts that there was a dispute between the accused Gour Mani and the deceased Santosh regarding mobile set of the deceased which is the motive behind the commission of murder of the deceased.

Mr. Biswas, learned senior counsel while attacking the impugned judgment and order of conviction and sentence would contend that the entire prosecution case is based on circumstantial evidence and the prosecution fails to establish the complete chain of evidence from which a reasonable person can come to a conclusion that except the accused persons, no other person committed the murder of the deceased. He has also submitted that the P.W. 4 Sri Subhendu Nath being the brother-in-law of P.W. 1 Sri Sajal Nath, elder brother of the deceased, and a very much interested witness, the trial court ought not to have relied upon his testimony for conviction of the accused persons.

Moreso, this witness only stated that he was with the deceased in the tea stall of Bimal Nath at about 7/7.30 p.m. on the date of occurrence and the deceased went out from the said tea stall with Gour Mani and thereafter he did not meet with the deceased. In the next morning, he learnt that one unclaimed dead body was lying in the hospital, and thereafter, he informed the said facts to the informant. Thus, from the said evidence, no conclusion can be drawn that the accused Gour Mani is the murderer of the deceased. He further submits that the circumstances of recovery of dao at the instance of the accused persons would not go to show that they have killed the deceased. Further, recovery of weapon of offence, Dao though seized but not sealed on spot and the same was also not sent for chemical examination. Thus, it cannot be said that the said dao was used for murder of the deceased and it cannot also be ruled out that the dao was tampered and unless it is proved that the dao was used for the murder of the deceased, the accused cannot be connected with the alleged offence of murder. In support of his aforesaid contention, he has placed reliance on paragraph-9 of Salim Akhtar @ Mota Vs. State of Uttar Pradesh,

He further submits that the prosecution fails to prove that the recovered mobile belonged to the deceased by way of adducing any cogent evidence and unless it is proved that the recovered mobile belonged to the deceased, it cannot be said that the deceased was murdered with a motive to get the said mobile set. He also submits that from the circumstances relied upon by the prosecution for connecting the accused persons with the murder of the deceased, no inference of guilt can be drawn as no complete chain of evidence is made out for coming to the conclusion that except the accused persons, no other person can do the commission of offence of murder, rather prosecution fails to prove its case beyond reasonable doubt. Hence, the accused persons are liable to be acquitted from the charge levelled against them.

Mr. Debnath, learned Addl. P.P. while supporting the impugned judgment and order would contend that the prosecution has established the facts of last seen together of the deceased with the accused Gour Mani and not only that, from the prosecution evidence, it is also established that the accused persons left their village after the occurrence and they remained absconding till their arrest from the house of one Ranjit Nama, a relative of Gour Mani at Karkhana Putin, Patherkandi, Assam. He also submits that though the accused persons belong to two different religions, i.e., Hindu and Muslim, but they were found together in a house and not only that, at the instance of them, the weapon of offence, dao, by-cycles used by them and mobile set belonged to the deceased were recovered. Thus, from all these circumstances, only a reasonable conclusion can be made that except the accused persons, no other persons committed murder of the deceased.

For proper appreciation of the submission of the learned counsel for the parties as well as evidence on record, it would be proper on our part to proceed with the circumstances relying upon which the accused persons were convicted.

Last Seen Together:

The deceased was last seen together with the accused Gour Mani. To these circumstances, the prosecution has relied upon the evidence of P.W 2 Sri Ramendra Nath, P.W. 4, Sri Subhendu Nath, brother-in-law of the informant, elder brother of the deceased and P.W. 10 Shri Ranjit Debnath, the younger brother of Bimal Debnath, the owner of the tea Stall/Restaurant.

P.W. 4 stated that on the date of occurrence, he and the deceased had taken tea in the tea stall of Bimal Nath at Kadamtala market and while he was taking tea, accused Gour Mani came to the tea stall and called the deceased Santosh Nath and accordingly Santosh went out from tea stall with the said accused and thereafter he did not meet with the deceased and only in the next morning, he came to know that an unclaimed dead body was lying in the hospital which he accordingly informed to the P.W. 1.

In his cross, this witness stated that he had told Gopal Nath, Rimu Nath, Sanju Das and some others about the deceased being accompanied with the accused Gour Mani, but none of those persons were examined by the prosecution.

P.W. 10 though stated that P.W. 4 and the deceased came to their restaurant on the day of Saptami, but did not say anything about the accused persons. Thus, the evidence of P.W. 4 being the lone testimony regarding last seen together cannot be fully relied upon by us in absence of any corroboration from any independent witness. It is also admitted that the P.W. 4 is the relative of the deceased through his elder brother, P.W 1, and being a relation, it cannot be ruled out that his statement may be exaggerated one. The prosecution also did not make any attempt to find out as to whether any other person who was in the tea stall at the relevant time had seen the accused person with the deceased. Thus, we are unable to rely upon on the sole testimony of P.W. 4.

P.W. 2 Sri Ramendra Nath alias Mitan, a generator operator, who has installed generator at Kadamtala market, stated that on Saptami day of Durgapuja, at about 7/7.30 p.m., the accused Gour Mani came to him and requested to give his by-cycle and accordingly, he had given his by-cycle to Gour Mani and when Gour Mani left with his by-cycle, the deceased Santosh also followed Gour Mani. As Gour Mani did not return his by-cycle to him, on that night, he enquired from the mother of Gour Mani about his by-cycle and he was informed that the police had already seized his by-cycle.

This witness has also stated that there was a dispute between the deceased Santosh and the accused Gour Mani regarding the selling of one mobile set. In his cross, while he was asked by the defence regarding his aforesaid statement that there was a dispute between the deceased and the accused Gour Mani regarding selling of one mobile set, he said that he had stated the said statement to the investigating Officer, but no such statement was found in his 161 Cr.P.C. statement and in his cross, he also stated that he did not make any prayer before the Court claiming release of his by-cycle. Had the by-cycle belonged to him, he would have asked for releasing the same. Moreso, this witness first time in the court stated a story regarding enmity between the deceased and the accused Gour Mani. Thus, such a statement cannot be relied upon. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the court should look for some corroboration. In the instant case, as stated supra, the time gap between the point of time when the deceased and the accused appellant were last seen together in the tea stall by P.W. 4 and P.W. 10 as well as P.W. 2 while deceased was following the accused Gour Mani and dead body of the deceased was recovered was more than 8 to 10 hours and that also far away from the place where the deceased and the accused appellant Gour Mani was last seen together. The aforesaid view also gets support from the decision of the Apex Court in the State of U.P. Vs. Satish, wherein the Apex Court noted that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long-gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. The aforesaid case of Satish (supra) has also been taken note of by the Apex Court in Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, Moreso, none of the witnesses stated in their evidence that the accused Md. Hasan Ali was with the accused Gour Mani while he went to tea stall. Therefore, doctrine of last seen together has no applicability so far as the accused Md. Hasan Ali is concerned. Recovery of the weapon of offence, dao at the instance of the accused and recovery of by-cycles and foot wear from the place where the dead body was recovered.

To bring home the circumstances like recovery of dao at the instance of the accused, the prosecution examined P.W. 3, Sri Abdul Kadir, Upa-pradhan of Kadamtala Gaon panchayat , P.W. 5 Sri Niser Ali, P.W. 6 Sri Abdul Khalif, P.W. 7 Sri Saikur Rahamana, P.W. 8 Sri Jyotirmoy Deb, P.W. 14, Shri Masuk Uddin and P.W. 19, Sri Kripamoy Nath.

P.W. 3 Abdul Kadir in his chief stated that on Saptami day of Durga Puja at about 9/9-50 p.m., he was called by P.W. 14 Masumuddin and informed that they were hearing sound from the southern side of his house and accordingly, he along with P.W. 14 and others proceeded to the spot and reaching there, he noticed that some people had already gathered there and on search, they noticed that a dead body was lying on the paddy field. He also requested P.W. 19 Kripamoy Nath, a neighbour of him to inform the matter to the local police station and accordingly P.W. 19 contacted with Kadamtala P.S. through his mobile set and thereafter police came at the spot. This witness also stated that they have also noticed that the police seized two pair of shoes and two by-cycles by way of preparing the seizure list on identification. He identified the seized by-cycles and pair of shoes.

This witness also stated that in presence of him both the accused persons confessed that they had killed the deceased Santosh by a dao and they could recover the dao from the place where they had kept it. Both Hasan Ali and Gour Mani led the police and this witness along with others went to the place where they had kept the dao which is 2000 feet away from the spot where the dead body of the deceased was found and at the instance of the accused persons, the police seized the dao by preparing the seizure list in which he is an witness.

P.W. 5 Niser Ali also gave a similar version and in his cross, this witness stated that the paddy field from where the dead body of the deceased was recovered belonged to one Abdul Sattar, P.W. 16.

P.W. 6, Abdul Khalif also in his chief stated that he also accompanied P.Ws. 3 and 5 and stated that 3/4 days after the incident, police came to their locality along with the accused persons and in his presence, the police seized one pair of sandal by preparing seizure list. In his cross, he stated that the day when he first noticed the dead body in the night, he did not found the sandals and the seized sandals are available in the open market.

P.W. 8 Jyotirmay Deb, a photographer, has stated in his chief that in his presence the accused persons recovered one dao from one tilla area at Julaibassa. He also went with the I.O. of the case to Kharkhana, Putni, Assam and the accused Gour Mani was with them. All of them went to the house of Gour Mani''s grandfather from where he (Gour Mani) recovered one mobile set in presence of him. At the time of cross, this witness stated that he did not state to Darogababu that mobile set was recovered by the accused Gour Mani from the house of his grandfather and he could not say from where the mobile set was recovered by the accused.

P.W. 14 Masuk Uddin also stated similar version like P.W. 3, 5 and 6. In his cross, he stated that the by-cycles were found on the northern side of their house. But this witness did not say anything about the pairs of foot wear.

P.W. 19 Kripamoy Nath in his chief stated that one dao was recovered from the house of one Abdul Gani and he cannot say who had recovered the dao from the house or at whose instance, the same was traced out. Though he stated that in his presence, Darogababu seized dao by preparing the seizure list and he put his signature on the said seizure list which he identified. As he shifted from his erstwhile statement u/s 161 Cr.P.C., the prosecution cross-examined him. In cross by prosecution, he has denied the suggestion that in his presence the accused persons admitted before the police that both of them murdered the deceased by dint of dao and it was also admitted by them that they threw the dao in one tilla at Jalaibari. In cross by defence, this witness specifically stated that Darogababu did not seal the seized dao in his presence and hands of the accused persons were tied by dint of rope when he had found them with police. From the evidence of P.W. 19, it is evident that the dao which was seized by the police and allegedly at the instance of the accused persons was not sealed and the possibility of tampering cannot be ruled out as contended by Mr. Biswas.

In Salim Akhtar @ Mota Vs. State of Uttar Pradesh, , the Apex Court relying upon Amarjit Singh Vs. State of Punjab, held as under:

"9. The evidence on record clearly shows that the pistol alleged to have been recovered from the polythene bag which was allegedly taken out from the mud by the appellant was not sealed on the spot. P.W. 1 in his cross-examination has stated that the pistol was not sealed as it was factory-made and in the recovery memo its ''number'' or ''make'' was not written as the same was not clear and legible. However, the cartridges and bomb and RDX were sealed. Similar statement has been given by PW 2 S.N. Tripathi and PW 4 S.P. Sharma that at the time when the pistol was deposited in the malkhana, the same had not been sealed. In the FIR, no details have been given to fix the identity of the pistol. P.W 4 has stated that the same was of Chinese-make while PW 6 Tej Pal Sharma, Head Constable of PS Lisari Gate, where the recovered articles were deposited, has stated that the same was of English-make. In Amarjit Singh Vs. State of Punjab, and Sahib Singh Vs. State of Punjab, it has been held that the possibility of tampering cannot be ruled out where the recovered articles were not sealed on the spot. We are little surprised that though the cartridges were sealed but the most important object, namely, the pistol was not sealed on the spot and the same was deposited as it is in the police station and, thereafter at the malkhana. In our opinion the fact that the pistol alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number nor its make etc. to fix its identity was mentioned in the recovery memo or in the FIR, raises considerable doubt regarding the factum of recovery."

Admittedly, in the instant case, the dao which was recovered and seized was not sealed on the spot and not only that, the same was also not sent for forensic/chemical examination to make out as to whether the same was used for committing the murder of the deceased or not. In absence of such examination, a doubt relating to the use of the said dao cannot be ruled out. Unless the use of the said dao for committing the murder of the deceased is proved, mere recovery of dao would not connect the accused persons with the murder of the deceased, as admittedly there is no direct evidence. Not only that, the said dao was also not shown to the medical officer, P.W. 20, Dr. Mriganka Dutta Biswas who conducted the post mortem examination on the dead body of the deceased being identified by one Bikas Bhowmik, P.W. 18 and found the following injuries:

Peeling of scalp from hair line upon parieto-occipital junction about 5" wide exposing the scalp bone.

5" long incised wound from the web between left little finger and ring finger to wrist on palmer aspect severing tendons and vessels.

5" long 3 & 1/2" breadth incised wound back of neck just 1" below away from both pinna.

Fracture neck of left femur.

The cause of death in his opinion is due to shock following profuse haemorrhage which is homicidal in nature. The doctor in his chief said, according to his opinion, the injury Nos. 1 and 2 are responsible for death of the deceased and those injuries were caused by sharp and blunt object. Had the dao been shown to the doctor, then he would have been in a position to say as to whether injuries sustained by the deceased could be done by the seized dao or not. But in absence of that, it is very difficult to come to a conclusion that the seized dao was used for committing murder of the deceased. Moreso, bicycles and the footwear near the place of dead body of the deceased were recovered not at the instance of the accused persons, rather those articles were recovered by the witnesses P.W''s. 3, 5, 6, 7, 14 and 19 and when those materials have been recovered and identified by the aforesaid witnesses, the recovery of the same cannot be utilized against the accused persons.

We have also considered the disclosure statements of accused persons; Ext. 12 and Ext. 13 respectively and we are of the opinion that the said disclosure statement is not admissible in evidence as the same has not been recorded in verbatim as stated by the accused persons. When the weapon of offence dao and the mobile set as allegedly recovered at the instance of the accused persons are not proved as an article connected with the offence, the said disclosure statement cannot be the basis for convicting the present accused persons.

Recovery of the mobile set of the deceased:

To prove the aforesaid circumstances relating to the recovery of the mobile set of the deceased, the prosecution examined P.W. 7, Safikur Rahaman, a businessman of Patharkandi and P.W. 8, Sri Jyotirmoy Deb, a photographer.

P.W. 7 in his statement stated that he had visited the house of Ranjit Nama along with one accused and the said accused recovered one mobile set from the house of Ranjit Nama and the Darogababu thereafter seized the said mobile by preparing the seizure list in which he put his signature as an evidence. The seized mobile set was shown to him and according to him; the mobile set may have been the seized one. In his cross, he has stated that the distance between his house and the house of Ranjit Nama is about half kilometer and there are 5/6 houses of Ranjit Nama which were being occupied by some families. Admittedly, none of the members of six families was examined and shown as a witness of seizure. This witness in his cross also stated that he cannot say in which part of the house of Ranjit Nama, the mobile set was recovered, meaning thereby that at the time of recovery of the mobile set allegedly at the instance of the accused, this witness was not present. Had he been present there, then he could have easily identified the place from where the mobile set was recovered.

P.W. 8 is a photographer who was brought by the police people to the place of recovery of the mobile set and in his statement also; he has stated that he cannot say who was the owner of the house and from where the mobile set was recovered by the accused. Thus, the presence of this witness at the time of recovery of the mobile is also not beyond reasonable doubt. Moreso, there was no attempt from the side of the prosecution to prove that the recovered mobile set belonged to the deceased either by way of proving the SIM card which was available in the said mobile or collecting the particular IMEI number by which it can be proved who is the actual owner of the recovered mobile. For such identification, the I.O. could have obtained the opinion of a mobile engineer or an expert who is aware how to detect the ownership of the mobile which is totally absent in the instance case. Furthermore, the prosecution could have examined the owner of the house to know who had kept the mobile in his house and the same was belonged to whom, but admittedly, the owner of the house, Ranjit Nama, has not been examined. Thus, the prosecution fails to prove that the mobile was kept by the accused persons as well as the ownership of the mobile. Thus, the recovery and identification of the mobile is unreliable and shaky and unless the identification and ownership of the mobile is proved, it is very difficult on our part to connect the accused persons with such mobile as alleged to have kept by the accused persons after commission of murder of the deceased in the house of his relative from where the mobile was recovered.

Dispute between the accused Gour Mani and the deceased Santosh regarding the mobile set:

To prove the circumstances relating to dispute between the accused Gour Mani and the deceased, the prosecution examined P.W. 2 Ramendra Nath who has stated that on the day of the incident, he also came to learn that there was a dispute between the deceased and the accused Gour Mani regarding selling of mobile set. The mobile set was of Usha brand, black in colour and it was settled to be sold at a price of Rs. 2000/- between the deceased Santosh and the accused Gour Mani. This witness also identified the accused Gour Mani in the dock. Except this witness, none of the prosecution witnesses including the informant stated anything about the dispute between the deceased and the accused Gour Mani regarding mobile set. This witness also did not disclose how and from whom he has learnt that it was settled that the mobile set will be sold at a price of Rs. 2000/-. Thus, we are of the considered opinion that this type of hearsay evidence cannot be treated as an incriminating circumstance against the accused persons.

Facts that the accused were absconding just after the incident and found both the Hindu and the Muslim staying in one room belonging to the relative of the accused Gour Mani:

Now let us consider the submission of Mr. Debnath regarding the circumstances that the accused were absconding from the date of incident till their date of arrest. In support of his aforesaid contention, the prosecution examined the Investigation Officer, Rahul Alam, P.W. 21 who in his statement stated that he raided the house of the accused persons, but found both of them absconding from their house and on 10.10.2008, receiving a secret information that both the accused were hiding in the house of one Ranjit Nama at Karkhana Putni, Assam, he went there and arrested them.

There is no doubt that the circumstances like absconsion can be treated as one of the incriminating circumstance but the said circumstance itself cannot be a ground of conviction unless the other circumstances are linked with that one.

In Matru alias Girish Chandra Vs. The State of Uttar Pradesh, the Apex Court held that the act of absconding is no doubt relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Generally the court considers it as a very small item in the evidence for sustaining conviction. It cannot certainly be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused.

In the instant case also, it cannot be ruled out that the accused persons left their place of residence either due to fear or to avoid arrest as, such is the instinct to self preservation in an average human being as would be evident from the decision of the Apex Court in Thimma and Thimma Raju Vs. State of Mysore,

In Thimma and Thimma Raju Vs. State of Mysore, , the Apex Court considered the conduct of the accused in absconding immediately after the occurrence of offence taking note of Section 8 of the Evidence Act. In that case, the appellant was convicted by the Sessions Judge u/s 302, IPC for murdering of one Govindappa and was awarded capital sentence. He was also found guilty for an offence u/s 201, IPC and sentenced to rigorous imprisonment for seven years. The High Court of Mysore confirmed the conviction and sentence u/s 302, IPC and also upheld the conviction u/s 201, IPC, but set aside the sentence observing that when a person is convicted both under Sections 302 and 201, IPC, it is undesirable to pass separate sentences for both offences. In that case also, the trial court as well as High Court was influenced by the fact that the appellant had absconded after commission of offence and held inter alia,

"11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5,1967 and this conduct is relevant u/s 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct of self-preservation in an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case."

In Rahman Vs. The State of U.P. the Apex Court held:

"...But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason."

Therefore, we are unable to accept the submission of Mr. Debnath that the order of conviction can be upheld only on the ground of circumstances like absconsion of the accused when other evidence do not support the case of prosecution.

Extra judicial confession:

Extra judicial confession made by the accused appellants to P.W. 3 Abdul Kadir and P.W. 21, I.O. of the case is undoubtedly an important circumstance subject to the said confession is a voluntary one. In the instant case, the alleged confession was made when the accused were under the custody of the police on being arrested. An unambiguous confession if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24, Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. In the instant case, admittedly, the extra judicial confession was made in presence of P.W. 21, I.O. of the case while the accused appellants were in custody of the police and such a confessional statement is not admissible in the eye of law.

As the entire case is based on circumstantial evidence and the dead body was recovered from the paddy field of Abdul Salem son of Abdul Sattar, P.W. 16, it would be proper on our part to consider some of the decisions of the Apex Court on circumstantial evidence.

In Hanumant Vs. The State of Madhya Pradesh, the Apex Court observed as under:

"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."

In Khasbaba Maruti Sholke Vs. The State of Maharashtra, the Apex Court while deciding a case based on circumstantial evidence held, inter alia,

"In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event, an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. 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. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused."

In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Apex Court taking note of its earlier decision held as under:--

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should 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,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) 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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

The aforesaid five golden principles have also reiterated by the Apex Court in its subsequent judgment in Padala Veera Reddy Vs. State of Andhra Pradesh and others,

The Apex Court also again considered the cases based on circumstantial evidence and reiterated the principle laid down by it earlier as to when an inference can be drawn about the guilt of the accused and consequent thereto order of conviction can be passed. (See C. Chenga Reddy and Others Vs. State of Andhra Pradesh, Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, , State of Goa Vs. Pandurang Mohite, , G. Parshwanath Vs. State of Karnataka,

In Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, the Apex Court while examining a case of circumstantial evidence observed, as under:-- "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ''may be'' and ''must be'' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ''may be'' true and ''must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

In view of the peculiar facts and circumstances of the case in hand and on scrutiny of the evidence on record as well as Law Reports referred to hereinabove, we are of the opinion that the prosecution cannot be said to have established the chain of circumstances linking the accused appellants with the alleged crime. The learned trial court has also failed to consider the facts in question and committed an error by relying only on circumstantial evidence of last seen together. We are of further opinion that the prosecution fails to prove all the circumstances which can only point towards the guilt of the accused beyond reasonable doubt. Therefore, we are constrained to interfere with the impugned judgment. Accordingly, the conviction and sentence awarded against the accused appellants are set aside and appeal is allowed. As the appellants are in jail, they shall be released forthwith, if not otherwise wanted in any case.

Send down the lower court''s record.