IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.1231 of 2017

Arising Out of PS. Case No.-88 Year-2005 Thana- KARJA District- Muzaffarpur

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1.Abdul Alim, Son of Late Md. Diljan,

2.Md. Sarfaraz, Son of Abdul Alim,

3.Md. Aftab, Son of Abdul Alim.

4.Md. Kalam, son of Late Aas Mohammad,

5.Md. Sarafuddin @ Rudal, Son of Late Md. Haneef.

6.Md. Mansoor, Son of Md. Kasim, resident of village- Aina, Vishunpur, P.S.-

Karja, District- Muzaffarpur.

... ... Appellants

Versus

The State of Bihar

... ... Respondent

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Appearance :

For the Appellants: Mr. Ajay Kumar Thakur, Advocate

: Mrs. Bela Singh, Advocate

: Mr. Rajeev Ranjan, Advocate

For the Respondent: Mr. Ajay Mishra, APP

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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and

HONOURABLE MR. JUSTICE DR. ANSHUMAN

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 11-12-2024

The present appeal, filed under Sections- 374(2) and

389(1) of the Code of Criminal Procedure, 1973 (hereinafter

referred to as the ‘Code’), arises out of the judgment of conviction

dated 21.08.2017 and the order of sentence dated 25.08.2017

passed by learned Additional Sessions Judge, XIV, Muzaffarpur, in

S.T. No.114 of 2006, arising out of Karja P.S. Case No.88 of 2005,

whereby and whereunder the appellants have been convicted for

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the offences punishable under Sections 302 and 201/34 of the

Indian Penal Code (hereinafter referred to as ‘IPC’) and have been

sentenced to undergo imprisonment for life and a fine of Rs.

5,000/- each for the offence under Section 302 of IPC, rigorous

imprisonment for three years and a fine of Rs. 5000/- each for the

offence under Section 201 of IPC. In default of payment of fine,

they have been ordered to undergo three months simple

imprisonment each. All the sentences have been ordered to run

concurrently and period spent under trial will be counted under

sentences.

2. The prosecution story in brief is as under:

2.1.The prosecution case is based on the fard-

beyan of the informant Jaffar Alam, recorded by the Officer-In-

Charge of Karja Police Station on 30.06.2005, at about 14.10

hours, that on 27.06.05, a baraat arrived at his village and his son

Naqui Alam, after taking meal, left the house at 8:00 O'clock to

see that baraat. Though the baraat returned, his son did not return

by 10 o'clock in the night. All the family members started making

inquiry about him from their relatives, neighbours, and the

persons, who arrived at the baraat, and other acquaintances, but

could not find his whereabouts. On the next day, i.e., on

28.06.2005, a Sanha with regard to missing of child was got

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entered in the police station diary, while keeping the search on. It

is further stated in the fard-beyan that in course of search, one

person informed the informant that his son was seen standing near

the baraat procession where besides him, his co-villagers Abdul

Alim, Md. Mansur and Sarfaraj Alam were also present there,

closely following his son. At some distance, Aftab Alam, Md.

Kalam and Sarfuddin @ Rudal, all co-villagers, were also present.

It is further stated in the fard-beyan that a case is already going on

between the aforesaid persons and the informant as the nephew of

the informant, namely, Md. Chand, had been murdered by the said

persons in the year 2003, in which case Abdul Alim, Sarfaraj

Alam, Md. Kalam and Sarfuddin were accused and evidence was

to be adduced in the said case. It is further stated that some days

ago, Alim, Sarfaraj Alam and Kalam warned the informant of dire

consequences, if that case was not settled, to which he did not pay

heed and continued his daily work as usual as he did not

apprehend that any such untoward occurrence might happen. On

30.06.05, the villagers of the village Ziun raised an alarm that a

decomposed dead body has been found in the bush near the pond

of the Chawar situated to the south to the village Vishunpur. Upon

hearing hulla, the informant also reached there and saw the dead

body dumped in the pond, which was that of his son Naqui Alam.

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The dead body was in decomposed state and acid had been poured

on it, muscle of both legs and stomach were in decomposed state.

Apart from that, fingers of the right hand had been severed and

foul smell was emanating from the dead body. A part of the body

also got disappeared so as to conceal the identity and destroy the

evidence. It is further stated that upon seeing the dead body of his

son and for the reason that those people had been roaming around

his son, he realized that his son was kidnapped and eliminated

because he did not yield to the pressure of settling the ongoing

case from members of the Baraat by Abdul Alim, Aftab Alam,

Sarfaraj Alam, Md. Mansur, Md. Kalam and Sarafuddin @ Rudal

and others. After taking his son to Chawar and finding the deserted

place there, they had killed him in the pond and to conceal the

evidence and hide the identity, they had thrown acid on his face,

legs, and other parts of the body and dumped his body into a bush

so that it would be eaten by animals, but cattle herders found it and

raised an alarm after reaching into village, whereafter the dead

body of his son was recovered. It is further stated in the fard-

beyan that the informant was of firm belief that his son has been

murdered by Abdul Alim and other five above mentioned persons

because of old animosity, and with a view to conceal the evidence,

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they dumped the dead body in the pond which lies in a deserted

place in the Chawar.

2.2. After recording of the fard-beyan of the

informant, formal FIR came to be registered before Karja Police

Station, bearing Karja P.S. Case No. 88 of 2005 for the offences

punishable under Sections 302, 201/34 of the Indian Penal Code.

2.3.After registration of the FIR, the Investigating

Officer commenced the investigation and during the course of the

investigation, he recorded the statement of the witnesses and

collected evidence and thereafter filed the charge-sheet against the

appellants-accused before the concerned Magistrate Court. As the

case was exclusively triable by the Court of Sessions, the learned

Magistrate committed the same to the Sessions Court under

Section 209 of the Code, where the same was registered as

Sessions Trial No. 114/2006.

3. Before the trial court, the prosecution

examined 08 witnesses and also produced documentary evidence.

Thereafter, the statement of the accused under Section 313 of the

Code came to be recorded wherein they pleaded not guilty.

3.1. After conclusion of the trial, the trial court

passed the impugned judgment of conviction and the order of

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sentence, against which the appellants/convicts have preferred the

present appeal.

4. Heard Mr. Ajay Kumar Thakur learned counsel

for the appellants assisted by Mrs. Bela Singh and Mr. Rajeev

Ranjan and Mr. Ajay Mishra, learned A.P.P. for the respondent

State.

5. Learned counsel for the appellants would

mainly submit that, in the present case, there is no eye-witness to

the incident in question and the case of the prosecution rests on

circumstantial evidence. The prosecution has miserably failed to

complete the chain of circumstances from which it can be

established that the appellants herein have kidnapped the deceased

and thereafter killed him.

5.1.It has further been submitted that though the

prosecution has projected PW 4 as a witness, who has seen some

of the accused carrying one boy on the shoulder of one of the

accused, the said witness could not identify as to who was that

boy. Even otherwise, it is revealed from the deposition of PW 4

that he has seen some of the accused with the boy during night

hours and there was no light at that time.

5.2.Learned counsel further submits that while

recording the further statement of the accused under Section 313

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of the Code, incriminating material was not put to the accused, as a

result of which prejudice has been caused to the

appellants/accused. Learned counsel, therefore, urged that this

appeal be allowed and the impugned judgment and order be

quashed and set aside.

6. On the other hand, learned Additional Public

Prosecutor has opposed the present appeal. Learned APP would

mainly submit that though the present is a case of circumstantial

evidence, the prosecution has proved the theory of last seen

together by leading cogent evidence by examination of PW 4 as a

prosecution witness. The said witness has seen some of the

accused with one boy during night hours and, therefore, it was the

duty of the defence to explain who was that boy. However, the

defence has failed to discharge the said burden.

6.1.Learned APP further submits that there was a

motive on the part of the appellants for commission of the alleged

offence and the said aspect has been specifically stated by the

informant at the time of giving his deposition before the Court.

The prosecution has proved the motive on the part of the accused

for commission of the alleged offence. Thus, the prosecution has

proved the case against the appellants beyond reasonable doubt.

Therefore, the trial court has not committed any error by passing

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the impugned judgment and order. Learned APP, therefore, urged

that the appeal be dismissed.

7. We have considered the submissions canvassed

by learned counsel appearing for the parties and also perused the

materials placed on record. At this stage, it is pertinent to deal with

the evidence of the witnesses. The prosecution has examined 08

witnesses.

8. PW 1, Dr. Mumtaz Ahmad, the doctor, who

was then posted in S.K. Medical College, has conducted the post

mortem examination of the dead body of the deceased Naqui Alam

and found as under: -

“Body was average built. Rigor mortis was

absent. Body was in the process of decomposition. Maggots

were crawling over the body. Hairs completely lost.”

Following ante-mortem injuries were found:

(I) Incised wound with clear cut margin was

found on right hand 2” below wrist joint cutting ulna

carpal bone with loss of all fingers and part of the palm.

(II) Abrasion on upper part of front and neck 1-

1/2”x1/2”.

On dissection the sub-cutaneous tissue of neck

was congested and lacerated with fracture and tracheal

rings with blood clot.

Deceased died due to asphyxia as a result of

pressure over neck by injury number II. Injury No. I may be

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caused by some heavy sharp cutting weapon. Time elapsed

since death within 80 to 90 hours.”

8.1. The defence declined to cross-examine the said

witness.

9. PW 2, Razi Ahmad, has deposed in his

examination-in-chief that he knows informant Zafar Alam, the age

of his son Naqui Alam was 8-10 years. The said boy went missing

on the day one baraat had arrived at his village. A search was

made for the missing boy, however, his decomposed dead body

was found from a dry pond after three days and the body was

identified by the clothes. He has further deposed that Zafar was on

inimical term with Alim and Kalam and their family because a

case of murder of the nephew of Zafar, namely, Chand, was going

on with them and the accused persons of that case were

pressurizing Zafar (informant) to compromise that case.

9.1. In his cross-examination PW 2 deposed that he

did not go to see the baraat that day. In the morning, he came to

know that son of Zafar was missing since night. He has further

deposed that he went to the pond and saw the decomposed body of

the deceased boy which was eaten away by the animals. He could

not tell about the colour of the clothes and said that underwear was

not there on the body of the deceased. He deposed that Zafar Alam

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is his co-villager and that Alim never discussed about compromise

in his presence.

10. PW 3, Md. Quddus, has deposed in his

examination-in-chief that he knows Zafar Alam (Informant) and

Naqui Alam (deceased) was his son who was about seven years

old at the time of incident. Incident took place about two and a half

years back. Deceased went missing on the day one baraat had

arrived in the relation of the accused. A search for deceased was

made. Dead body of the deceased was found after two-three days

from a dray pond and he had also gone to collect the dead body

and identified the deceased. He has also deposed that family of

informant and the accused persons were on inimical terms because

of complicity of the accused persons in the murder of nephew of

the informant and the accused persons used to threat the informant

to enter into compromise in that case.

10.1. In his cross-examination, PW 3 has deposed

that he is a retired teacher. He does not remember the date of the

incident. It was 8:00 P.M. He does not have the knowledge as to

wherefrom the baraat had come, but the marriage was of the

daughter of one Muslim. Baraat arrived at 4:00 P.M. He had not

participated in the baraat. The house of Muslim is across the road.

He came to know about missing of the deceased from the

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grandmother of the deceased. He was not the one who went in

search of deceased. The body of deceased was decomposed, but

was in a state that it could be identified and Darogaji had not

visited the spot in his presence. He could not recall that he told the

police that the dead body of the deceased was recovered from the

pond. He denied the suggestion that since he belongs to the caste

of the informant, he is giving false deposition. He deposed that the

accused persons used to threaten the witnesses of the case in his

presence.

11. PW 4, Junaid Alam, has deposed in his

examination-in-chief that he is acquainted with the informant and

the accused persons. The incident took place on 27.06.2005, when

he was at his home. He went to attend the nature’s call at around

10:00 PM. He saw that Sarfaraz Alam, Abdul Alim, Md. Kalam,

Sarafuddin and two-four unknown persons were going. Sarfaraz

and Kalam were carrying a boy on their shoulder. When he asked,

they ignored him and went towards east. In the same night

marriage at Muslim Mian’s house was being solemnized when the

incident took place. He came home and went to sleep. In the next

morning, he went to Muzaffarpur for his job. When he returned to

village on 30.06.2005, he came to know that son of informant,

namely, Naqui Alam, has been killed.

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11.1. In his cross-examination, PW 4 has deposed

that his father is “Hazi” a “Hafiz” and he used to drive his own

vehicle. He used to visit his village home at an interval of a week-

ten days. One case with regard to custom is pending against him in

Muzaffarpur Court. He also deposed that lavatory is there in his

house, both inside and outside. He has also deposed that it was a

dark night and there was no source of light in his house. Therefore,

he went outside to attend the nature’s call. He saw the boy when he

was going outside to attend the nature’s call, but he did not tell

anyone about it nor he thought it proper to inform the police about

it. He met the informant on 30.07.2005. He did not visit the place

where the dead body was found nor did he show the spot to police

where he saw the accused persons carrying the boy. He further

deposed that the distance of his house from that of the informant is

about 10/12 laggi (yards) and one house is there between the two.

The distance of the house of Md. Muslim from that of Alim is 5/6

yards. He has not seen nor talked with the accused persons after

the date of the incident, i.e., 30.06.2005. He further deposed that

he did not tell the police that he asked Safaraz and Kalam, who

were carrying the boy on their shoulder, as to where they were

taking the boy. He further deposed that the accused persons went

towards east without paying any heed to him. He told the police

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that when he went to his house on 30.06.2005, he came to know

that son of the informant has been killed. He denied the suggestion

that he was not present at his house on the date of incident and he

did not see anything. He also denied the suggestion that he has

deposed against the accused persons since they have not helped

him in the case pending against him. He also deposed that it is not

a fact that the accused persons have not committed such act.

12. In his examination-in-chief, PW 5, Ram

Naresh Paswan, the Investigating Officer, has deposed that he took

charge of the investigation of the case from earlier IO Md. Ayub

on 03.01.2006. He conducted raids after assuming the charge of

investigation to arrest the accused persons. He came to know on

28.01.2006 that four accused persons have surrendered in the

court. After verifying the records, he came to know that accused

Md. Sarfaraz, Md. Aftab, Md. Kalam and Md. Mansur have

surrendered.

12.1. In his cross-examination he deposed that after

perusing the case diary, he conducted raids to arrest the accused

persons in furtherance of the investigation.

13. PW 6, Md. Ayub, is the first IO of the case and

he has deposed in his examination-in-chief that while he was

posted as S.H.O. Karja P.S., he got an information on 30.06.2005

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in the evening that mutilated dead body of the son of the informant

has been found from the bushes near the pond. A sanha entry was

made in the station diary on 28.06.2005 with regard to missing of

Naqui. On receiving the information, he made necessary entry and

rushed for the place of occurrence, where he arrived at noon. He

prepared inquest of the dead body and also recorded statements of

the witnesses present there. The inquest report was signed by two

witnesses and marked as ext.-2. Thereafter, he recorded the fard-

beyan of the informant is his own handwriting, which has been

marked as ext.-3. Thereafter, the dead body was sent to SKMCH

for post mortem. He came back to the police station and registered

FIR. He also recorded the statements of Wasi Ahmad and Md.

Kalim while taking the dead body from SKMCH. The spot from

where the dead body was recovered was a bush northward to a

pond having bank height of nearly 12’ situated 300-400 yards

south-east from village Aima Bishunpur. Hairs of the dead body

was found at a distance of 20 feet in the west direction from the

spot where the dead body was found and it appears that the killing

was committed there itself, where a white coloured half-vest was

recovered. Burnt grass was also found there. It was a deserted

place. He has further deposed that he arrested one accused Abdul

Alim during raid. He, under the direction of the Senior Police

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Officer and on the basis of evidence collected during investigation,

found the charges against two accused Abdul Alim and Sarafudin

@ Rudal true and submitted charge-sheet against them continuing

investigation against other four accused persons. Later on, he was

transferred and he handed over the charge of investigation to the

then In-charge of the police station and assumed charge at the new

place of posting.

13.1. In his cross-examination, PW 6 has deposed

that details of the true copy of missing sanha is contained in

paragraph 10 of the case diary. He had deposed that nothing

noteworthy is mentioned in the case diary.

14. PW 7, Zafar Alam, who is the informant and

the father of the deceased boy, has deposed in his examination-in-

chief that the occurrence took place on 27.06.2005. At about 8 PM,

his son went to see the marriage procession and as he did not come

back till 10 PM, he searched for him, but did not find him. On the

next day, he went to the police station and gave information

regarding missing of his son. He has further deposed that he was

informed by one person that Abdul Alim, Md. Mansoor and

Sarfaraz Alam, were standing behind his son and at some distance

Md. Kalam, Sarfuddin and Sarfuddin were also standing. These

persons had earlier killed his nephew Md. Chand and a case was

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already pending against them with regard to that incident. He

further stated that the dead body of his son was found on

30.06.2005 from inside a bush near the pond. Upon hearing hulla,

he went to pond and saw the dead body of his son lying there and

acid had been poured on it and all the five fingers of his right hand

were severed and no cloths were there on his body. He deposed

that Darogaji recorded his statement, on which he put his

signatures, which came to be marked as ext.-4 and Wasi Ahmad

also affixed his signature, which was marked as ext.-4/1.

14.1. In his cross-examination PW 7 has deposed

that Chand was his nephew and he was neither the informant nor a

witness in the murder case of Chand. The accused persons used to

threaten him to withdraw the case. He had given an information

regarding the same, however, he does not remember as to whom

he had given that information. He has further deposed that it is not

a fact that he has implicated the accused person in the present case

because of the enmity. He further deposed that Md. Shamshad,

who is son of Sami Ahmed, is his son-in-law. Shami and Wasi are

brothers. Son of Wasi, Rafi @ Imtiyaz Alam had contested

panchayat election against one of the accused persons and had lost

the election. Chand also contested the election for the post of

Mukhiya against one Tarkeshwar Giri. He further deposed that

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they searched every house in the village looking for the missing

boy and people told that the boy was seen in the baraat

procession. He went to police station with Wasi Ahmad for lodging

Sanha, he reached police station at about 12 O’clock, wherein he

did not name the accused persons. He has again deposed that Md.

Shamshad, son of Sami Ahmed, is his son-in-law, son of Wasi

Ahmed, Rafi @ Imtiyaz Ali had contested panchayat election

against one of the accused persons and lost it. He was not present

during the Panchayat elections. Accused Abdul Alim has two sons

Mahtab and Sarfaraz. He has further deposed that he had not given

statement before the police that the accused persons were

following his son. He denied the suggestion that he has given false

deposition.

15. PW 8, Md. Kalim, has deposed in his

examination-in-chief that the occurrence took place on

27.06.20024. A baraat had arrived in the village at the Md.

Muslim’s place. Accused persons Md. Aftab, Sarfuddin, Kalam

and Masoor were present at the baraat so also Naqui Alam

(deceased) and other persons from the village. The baraat arrived

at 8 PM. After two hours, he came to know that Naqui Alam, who

was 8-9 years old, had gone missing. Despite search, he could not

be traced. On 30

th

of the month an alarm was raised that a dead

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body has been found in chaur, he too went there and saw that it

was the dead body of Naqui Alam. He identified accused persons

present in the court and claimed to identify others also on seeing

them. He further deposed that father of Naqui Alam had an

ongoing dispute with the accused persons prior to the occurrence.

15.1.In his cross-examination PW 8 has deposed

that the informant is like his brother from village. He operates

Lathe machine in Rajasthan and lives there. He was in the village

for two and half years to three years at the time of occurrence. He

has nothing to do with the enmity between the two parties. He has

further deposed that on 30.06.2005 he came to know that a dead

body has been found, he also went there. He came to know about

everything on that date. He deposed that he had stated before the

police that so many boys were dancing in the baraat procession.

He denied the suggestion that he is falsely deposing on being

tutored.

16. We have re-appreciated the entire evidence led

by the prosecution. It is revealed from the record that the fard-

beyan of Zafar Alam (PW 7) was recorded by the police on

30.06.2005 at about 15.10 hours. In the said fard-beyan, the

informant has stated that on 27.06.2005, at about 8 PM, his son

went outside the house with a view to see the marriage procession,

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however, his son did not return to the house till 10 PM and,

therefore, he and his family members started searching for the boy

and inquired with the neighbours and other village people

including the persons who were part of the marriage procession.

Despite all efforts, they could not get any information with regard

to the missing boy and, therefore, on the next date, i.e., on

28.06.2005, the informant gave missing complaint in the police

station for which necessary entry was made in the station diary.

Thereafter, during the course of search, one person informed him

that his son was seen in the company of the accused. It is further

stated in the fard-beyan that on 30.06.2005, he heard hulla from

the village people that dead body of one boy is lying in the bushes

near the pond. He, therefore, went to the said place and came to

know that it was the dead body of his son.

16.1.Thus, from the aforesaid, it is revealed that

before the dead body of the deceased was found, the informant did

not give the name of the accused while giving missing complaint

nor he had disclosed to the police about the name of the person

who had informed the informant that son of the informant was

seen in company of the accused. Even while giving the missing

complaint, the informant did not state that few days before accused

Abdul Alim, Sarfaraz Alam and Md. Kalam gave him threats that

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the case with regard to killing of his nephew Chand be settled

otherwise they will have to face dire consequences.

16.2.From the deposition given by PW 1, Dr.

Mumtaz Ahmad, who had conducted the postmortem of the dead

body of the deceased, it would reveal that one incised wound and

abrasion were found on the body of the deceased and so far as

injury No. 1, i.e., incised would is concerned, specific opinion has

been given by the Doctor that the same should be caused by heavy

sharp cutting weapon. Further, it is pertinent to note that the so-

called weapon, with which the deceased was killed, has not been

discovered or recovered by the investigating agency from any of

the accused/appellants.

16.3.It is relevant to observe, at this stage, that

admittedly there is no eyewitnesses to the incident in question,

however, the prosecution has projected PW 4 as the witness, who

has deposed before the Court that at about 10 PM on 27.06.2005

when he went outside the house for answering nature’s call, he had

seen Sarfaraz Alam, Abdul Alim, Md. Kalam, Sarfuddin and other

unknown persons and one boy was seen on the shoulder of

Sarfaraz. Thus, by examining the aforesaid witness, the

prosecution has tried to prove the theory of last seen together.

Further, it is revealed from the cross-examination of the said

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witness that in paragraph 3 he has admitted that there is a toilet in

and outside his house and it was dark night on the date of the said

incident, however, as there was no electricity in the house, he went

outside the house with a view to answer the nature’s call. He has

also admitted that he did not inform to the police immediately with

regard to the said aspect. The said witness also admitted that he

did not point out to the police the place where he had seen the

accused in company with the deceased boy. It is relevant to

observe that in his entire deposition, PW 4 has not specifically

stated that the boy, who was seen on the shoulder of Sarfaraz and

Kalam, was the deceased boy, who was son of the informant. Thus,

we are of the view that from the deposition given by PW 4 even

the theory placed by the prosecution with regard to the last seen

together is not duly proved. Thus, simply relying upon the

deposition given by PW 4, conviction of the appellants cannot be

recorded.

16.4.Another contention has been raised by the

learned APP that the prosecution has proved the motive on the part

of the appellants/accused for commission of the alleged offence.

With a view to appreciate the aforesaid submission, we have gone

through the deposition given by PW 7, the informant. In his

examination-in-chief, PW 7 has specifically stated that he along

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with his family members searched for the missing boy during night

hours, however, whereabouts of his son could not be found and,

therefore, he gave missing complaint to the concerned police

station and after giving the said complaint, one person gave

information that the accused were following his son. However, at

this stage, it is relevant to note that the informant did not give the

name of that person who gave information to him and even that

person has also not been examined by the prosecution. Further, it

would reveal from the cross-examination of PW 7 that specific

suggestions were put to the said witness that one of the relatives of

the informant contested panchayat election against one of the

accused and his relative lost the said election. He has also admitted

that Chand was his nephew, however, in the said case he is neither

the informant nor the witness. He has also admitted that he did not

remember the date and place where the threats were given to him

by the accused. Further, as observed hereinabove, in the missing

complaint given by the informant on 28.06.2005, the aspect of

giving threats by the accused to the informant was not disclosed by

him. Thus, from the evidence led by the prosecution, it can be said

that the prosecution has even failed to prove the motive on the part

of the accused to kill the son of the informant because PW 7 was

not the informant and/or witness in the case of killing of nephew

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of the PW 7. Thus, there was no reason for the present

appellants/accused to give threat to the present informant and

asking him to withdraw the proceeding with regard to the death of

the nephew of the informant.

17. In the case of Sharad Birdhichand Sarda Vs.

State of Maharashtra, reported in (1984) 4 SCC 116, the Hon’ble

Supreme Court has observed in paragraph 150 to 160 as under:

“150. It is well settled that the

prosecution must stand or fall on its own legs and it

cannot derive any strength from the weakness of the

defence. This is trite law and no decision has taken a

contrary view. What some cases have held is only

this: where various links in a chain are in themselves

complete, then a false plea or a false defence may be

called into aid only to lend assurance to the court. In

other words, before using the additional link it must

be proved that all the links in the chain are complete

and do not suffer from any infirmity. It is not the law

that where there is any infirmity or lacuna in the

prosecution case, the same could be cured or

supplied by a false defence or a plea which is not

accepted by a court.

151. Before discussing the cases relied

upon by the High Court we would like to cite a few

decisions on the nature, character and essential

proof required in a criminal case which rests on

circumstantial evidence alone. The most fundamental

and basic decision of this Court is Hanumant v. State

of Madhya Pradesh 1952 SCR 1091 : (AIR 1952 SC

343) . This case has been uniformly followed and

applied by this Court in a large number of later

decisions up-to-date, for instance, the cases of Tufail

v. State of Uttar Pradesh, (1969) 3 SCC 198 and

Ramgopal v. State of Maharashtra, AIR 1972 SC

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656. It may be useful to extract what Mahajan, J. has

laid down in Hanumant’s case (at pp. 345-46 of AIR)

(supra):

“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.”

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 v.

State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973

SC 2622) where the 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.”

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(2) 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,

(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.

153. These five golden principles, if we

may say so, constitute the panchsheel of the proof of

a case based on circumstantial evidence.

154. 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 The 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.”

155. Lord Goddard slightly modified the

expression ‘morally certain’ by ‘such circumstances

as render the commission of the crime certain’.

156. 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

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pure moral conviction. Horry’s case (supra) was

approved by this Court in Anant Chintaman Lagu v.

State of Bombay, (1960) 2 SCR 460 : (AIR 1960 SC

500). Lagu’s case as also the principles enunciated

by this Court in Hanumant’s case (supra) 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 (supra), Ramgopal’s case (AIR 1972 SC 656)

(supra), Chandrakant Nyalchand Seth v. State of

Bombay (Criminal Appeal No 120 of 1957 decided

on 19-2-1958), Dharambir Singh v. State of Punjab

(Criminal Appeal No 98 of 1958 decided on 4-11-

1958). There are a number of other cases where

although Hanumant’s case has not been expressly

noticed but the same principles have been expounded

and reiterated, as in Naseem Ahmed v. Delhi

Administration, (1974) 2 SCR 694 (696) : (AIR 1974

SC 691 at p. 693), Mohan Lal Pangasa v. State of

U.P., AIR 1974 SC 1144 (1146), Shankarlal

Gyarasilal Dixit v. State of Maharashtra, (1981) 2

SCR 384 (390) : (AIR 1981 SC 765 at p. 767) and

M.G. Agarwal v. State of Maharashtra, (1963) 2 SCR

405 (419) : (AIR 1963 SC 200 at p. 206) a five-Judge

Bench decision.

157. 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, (1955) 2 SCR

570 (582) : (AIR 1955 SC 801 at p. 806), 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

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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.”

158. 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 point to the

guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to

the time and situation.

159. If these conditions are fulfilled only

then a court can use a false explanation or a false

defence as an additional link to lend an assurance to

the court and not otherwise. On the facts and

circumstances of the present case, this does not

appear to be such a case. This aspect of the matter

was examined in Shankarlal’s case (AIR 1981 SC

765) (supra) where this Court observed thus:

“Besides, falsity of defence cannot take

the place of proof of facts which the prosecution has

to establish in order to succeed. A false plea can at

best be considered as an additional circumstance, if

other circumstances point unfailingly to the guilt of

the accused.”

160. This Court, therefore, has in no

way departed from the five conditions laid down in

Hanumant’s case (AIR 1952 SC 343) (supra).

Unfortunately, however, the high Court also seems to

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have misconstrued this decision and used the so-

called false defence put up by the appellant as one of

the additional circumstances connected with the

chain. There is a vital difference between an

incomplete chain of circumstances and a

circumstance which, after the chain is complete, is

added to it merely to reinforce the conclusion of the

Court. When the prosecution is unable to prove any

of the essential principles laid down in Hanumant’s

case, the High Court cannot supply the weakness or

the lacuna by taking aid of or recourse to a false

defence or a false plea. We are, therefore, unable to

accept the argument of the Additional Solicitor-

General.”

18. From the aforesaid observation made by the

Hon’ble Supreme Court, it can be said that certain essential

conditions must be satisfied, such as 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. The facts so established should

be consistent only with the hypothesis of the guilt of the accused.

Further, the circumstances should be of a conclusive nature and

tendency and 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.

19. Keeping in view the aforesaid decision

rendered by Hon’ble Supreme Court, if the evidence of the present

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case is appreciated, we are of the view that the prosecution has

miserably failed to establish the case against the appellants herein

beyond reasonable doubt, despite which the trial court has passed

the impugned judgment and order of conviction and sentences

against the appellants. Hence, the same deserves to be quashed set

aside.

20. It is pertinent to observe, at this stage, that in a

case of circumstantial evidence, motive assumes importance,

whereas in the present case, the prosecution has failed to point out

motive on the part of the accused to commit the alleged offences.

21. Accordingly, the impugned judgment of

conviction dated 21.08.2017 and order of sentence dated

25.08.2017 passed by learned Additional Sessions Judge-XIV,

Muzaffarpur, in connection with Sessions Trial No.114 of 2006,

arising out of Karja P.S. Case No.88 of 2005/G.R.No. 1047/2005 is

quashed and set aside. The appellants are acquitted of the charges

levelled against them by the learned trial court.

22. Since the appellants no. 1, 3, 5 and 6, namely,

Abdul Alim, Md. Aftab, Md. Sarafuddin @ Sarafuddin @ Rudal

and Md. Mansoor respectively, are on bail. They are discharged of

the liabilities of their bail bonds. Appellant no.2, namely, Md.

Sarfaraz, and appellant no.4, namely, Md. Kalam, are in jail, they

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are directed to be released forthwith, if their presence are not

required in any other case.

23. The present appeal stand allowed.

Pawan/-

(Vipul M. Pancholi, J)

(Dr. Anshuman, J)

AFR/NAFR AFR

CAV DATE N/A

Uploading Date 18.12.2024.

Transmission Date 18.12.2024.