SURAJDEO MAHTO & Anr. v. THE STATE OF BIHAR

2.4 The appellants submitted that even if the deposition of PW-3 was considered true, he had seen A in the company of the appellants on 09.04.1987, which was two days before the discovery of the dead body. It was, thus, submitted that the intervening time period between the two events could not rule out the possibility of intervention by a third party and as such there wasn’t a continuous chain of circumstances. While this submission seems attractive at the first instance, but, when considered in the light of testimonies made by the independent witnesses PW-6 and PW- 8, it stands completely belied. The prosecution case is that both the appellants committed the murder on the night of 09.04.1987. PW-8, who discovered the body of A on 11.04.1987, deposed that he had heard rumors about the dead body the previous night itself, however, on account of it being dark and a forested area, he was only able to proceed to the spot the next day. Given that the body was lying on the spot at least since 10.04.1987, the instant crime could have been committed on or before 10.04.1987. The medical evidence in the instant case further braces the prosecution story. PW-6, the Doctor, examined the body of the deceased on 12.04.1987. In his opinion, the time elapsed since the death of A was 36 to 72 hours. Thus, the medical evidence fully corroborates the prosecution story of the murder having being taken place on 09.04.1987. The Courts below held that the murder of the deceased indeed took place on 09.04.1987. There is no reason to take a contrary view. [Para 34][931-E-H; 932-A- B]

2.5 Appellant No.1 has been unable to offer any explanation as to circumstances in which he departed from the company of the deceased. [Para 35][932-D]

2.6 As regard to the reliability of the depositions of PW-10 to PW-14, the primary submission is that except PW-12, none of the other witnesses were able to identify the present appellants; and that the testimony of PW- 12 seems doubtful as it was highly improbable that the witness was able to see appellant No.2 through the light of a lamp. Assuming that the depositions of PW-10, B C D E F G H SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR 915 PW-11, PW-13 and PW-14 do not add much value to the case in hand, the question whether PW-12 could or could not identify appellant No.2 is purely a factual issue and courts below have taken a concurrent view in relation thereto. PW-12 was able to identify appellant No.2 because of the chicken-pox marks on his face. Even in the initial statement recorded by the police, PW-12 had maintained that one of the two persons who he had interacted with on the night of 09.04.1987, had chicken-pox scars on his face. [Para 36][932-D-G]

2.7 Upon considering the prosecution evidence in its entirety and having meditated on the grounds raised by the appellants to every possible extent, there is no reason to disbelieve the prosecution version of last seen theory against the appellants. [Para 37][932-G-H]

3.1 If motive in a case is attributed to an accused(s) and thereafter proved, the probability of the crime being committed by the said accused is intensified. It is for this reason, that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence, as well as, form a vital link in the chain of evidence. [Para 38][933-A-B]

3.2 The motive attributed to the appellants in this case is that they murdered the deceased because he was allegedly having an illicit affair with ‘R’, sister of appellant No.1. While none of the witnesses have specifically deposed about the deceased having an affair with R, the motive, as alleged, does find some corroboration in the deposition of PW- 1, PW-3A, and PW-16. It is revealed from the testimony of PW-3A, that initially there were cordial and friendly relations between the 1st Appellant and deceased’s family but the same became sour after the month of February. PW-1 who is a fellow villager corroborated the testimonies of PW-3A. PW-16 categorically deposed that a Panchayat had been called in regards to the illicit relationship of the deceased with ‘R’. [Para 39][933-B-D]

4.1 The fact of the deceased having an affair with the sister of appellant No.1 has of course not been established beyond doubt but the factum of calling Panchayat so that the issue does not A B C D E F G H 916 SUPREME COURT REPORTS [2021] 8 S.C.R. spiral out of control does suggest that appellant No.1 carried a motive to eliminate the deceased. The events had occurred in the year 1987, when the rural Indian society was irrepressibly conservative, and even the slightest rumor of extra- marital affairs could flare-up tensions. Considering these ground realities, the trial court correctly recorded that the motive as alleged had been sufficiently proved by the prosecution. The counsel for appellants has not mounted any substantial challenge on the point of motive, and as such, there is no reason to interfere with the indictment of appellant No.1 on the point of motive. [Para 40][933-D-G]

4.2 Both the witnesses PW-1 and PW-5 individually met appellant No.1 on 10.04.1987 and both of them enquired about the whereabouts of A. Appellant No.1 lied to PW-1 and told him that after viewing the Cinema, A alone had proceeded to Amwa whereas appellant No.2 had gone to visit Dopta. Even more curiously, appellant No.1 informed PW-5 that A had left for Delhi. It is clear that the false information provided by the first appellant was an attempt to hide his guilt by de-railing the search efforts that were being conducted. Appellant No.1 thereafter absconded and surrendered before the court only after coercive measures were taken. The false information given by appellant No.1 and his post occurrence conduct is relevant to prove an additional link in the chain of incriminating circumstances. [Para 41][933- G-H; 934-A-C]

4.3 There is, however, a qualitative difference in the evidence led by the prosecution to prove charges against Appellant No.2. The prosecution’s case is that it was the 1st Appellant who allured the deceased and persuaded him to accompany the said appellant to watch cinema. It is neither their case nor have the prosecution witnesses deposed that appellant No. 2 was involved in the persuasive abduction of the deceased from his house on 05.04.1987. This has to be seen in the context of motive behind the offence. It is proved on record that the 1st Appellant had an axe to grind against the deceased who was allegedly having illicit relationship with his sister. There is no motive alleged or proved which would have swayed appellant No. 2 to commit murder of the deceased. Still further, prosecution A B C D E F G H SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR 917 has led no evidence that there was any meeting of mind between the 1st and the 2nd Appellant on or before 08.04.1987, or that they hatched any conspiracy together to commit the murder of A. There is also no evidence on record to suggest that appellant No.1 disclosed his intention to commit murder of deceased to the 2nd appellant. [Para 42][934-C-F]

4.4 It is true that the prosecution has led evidence comprising the statements of PW-3 and PW-4 who had lastly seen the deceased alive on 09.04.1987 in the company of the 1st and the 2nd Appellants. However, until and unless the last seen theory is substantiated by other circumstantial evidence to constitute an unbreakable chain of events, the conviction cannot rest solely on the basis that the 2nd Appellant was also present along with appellant No.1 in the company of the deceased when they were seen together on 09.04.1987. [Para 43][934-F-G]

4.5 It is pertinent to mention that some incriminating material consisting of one pair of slippers, one handkerchief, a knife, jerrycan and two lungis were found and seized at the place of occurrence. While PW-16, namely, father of the deceased has identified one of the seized lungis belonging to appellant No.1, none of the recovered articles have been attributed to the 2nd Appellant. The only substantial evidence against the 2nd Appellant is that he too was in the company of the deceased and appellant No.1 on 09.04.1987, i.e., they were seen together lastly. Even if it is presumed that the deposition of PW-12 identifying appellant No.2 on the night of 09.04.1987 to be true, such evidence, may create a strong suspicion in respect of involvement of the 2nd Appellant in the murder of the deceased, but then, mere suspicion cannot be accepted as impeccable evidence to prove his guilt beyond any doubt. [Para 44][934-H; 935-A-C]

4.6 There is post occurrence circumstantial evidence led against appellant No.1, namely, that he did not disclose the whereabouts of the deceased and then surreptitiously disappeared from the scene till he surrendered in Court. There is no such allegation of being evasive or absconding post occurrence levelled against appellant No.2. There are, thus, missing links in the A B C D E F G H 918 SUPREME COURT REPORTS [2021] 8 S.C.R. prosecution case so far as the 2nd Appellant is concerned. Consequently, and for the reasons, the case of Appellant No.2 is distinguishable from that of Appellant No.1 and the prosecution has not been able to prove the guilt of 2nd Appellant beyond the pale of doubt. The 2nd Appellant is, thus, entitled to the benefit of doubt. [Para 45][935-C-E]

5.1 Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 sets out the procedure to be followed by a court to determine the claim of juvenility. Its proviso enables to raise the claim of juvenility before “any court” and at “any stage”, even after the final disposal of the case. However, in order to take advantage of the provision, there lies an initial onus on the accused to produce some cogent evidence to prima facie establish the juvenility on the date of commission of the offence. [Para 46][935-E-F]

5.2 The 1st Appellant raised plea of juvenility for the first time before this Court. He has placed a School Leaving Certificate along with an Admit Card issued by the Bihar School Examination Board, wherein, appellant No.1’s date of birth is claimed to be 01.03.1970. It has been asserted that the 1st Appellant was 17 years old at the time of occurrence. When the documents relied upon by 1st Appellant are analysed in the backdrop of these settled principles, the same do not inspire any confidence. The name of appellant No.1 does not appear on the documents, instead these belong to one ‘SP’. It is nearly impossible to verify the veracity of the two documents relied upon by appellant No.1 at this highly belated stage. Further, the record of the trial court does suggest that the name of the 1st Appellant is ‘SM’ and not ‘SP’. In the absence of any cogent material indicating that the subject- documents pertain to 1st Appellant only, no case to hold any fact- finding enquiry is made out. Consequently, reliance on the documents in question is not accepted and the plea of juvenility raised by the 1st Appellant is rejected. [Para 48][935-G-H; 936- E-G]

#6. While the conviction and sentence of Appellant No.1 is upheld, the 2nd Appellant is acquitted of the charges. [Para 49][936- G-H] A B C D E F G H SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR 919 Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Inspector of Police, Tamil Nadu v. John David (2011) 5 SCC 509 : [2011] 7 SCR 354; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR 501; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999] 3 Suppl. SCR 314; Badruddin Rukonddim Karpude v. State of Maharashtra (1981) Supp SCC 1; Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006] 2 Suppl. SCR 615; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Mohd. Younus Ali Tarafdar v. State of W.B. (2020) 3 SCC 747; R. Damodaran v. State Represented by the Inspector of Police (2021) SCC OnLine SC 134; Satpal v. State of Haryana (2018) 6 SCC 610 – referred to. Case Law Reference [2012] 9 SCR 244 [2011] 7 SCR 354 referred to referred to [2006] 8 Suppl.SCR 501 referred to [1999] 3 Suppl. SCR 314 referred to (1981) Supp SCC 1 referred to [2006] 2 Suppl. SCR 615 referred to [1985] 1 SCR 88 (2020) 3 SCC 747 (2018) 6 SCC 610 referred to referred to referred to Para 20 Para 21 Para 21 Para 22 Para 22 Para 23 Para 27 Para 27 Para 29 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1677 of 2021. From the Judgment and Order dated 20.05.2010 of the High Court of Judicature at Patna in Criminal Appeal No.273 of 1988. Ms. Prerna Singh, T. Mahipal, Advs. for the Appellants. Abhinav Mukerji, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs. for the Respondent. A B C D E F G H 920 SUPREME COURT REPORTS [2021] 8 S.C.R. A The Judgment of the Court was delivered by SURYA KANT, J.

#1. Surajdeo Mahto (Appellant No.1) and Prakash Mahto (Appellant No.2) have laid challenge to the judgment dated 20.05.2010 passed by the High Court at Patna, whereby, the order of their conviction and sentence dated 13.05.1988 passed by the 3rd Additional Sessions Judge, Nawadah was confirmed. Both the Appellants have been convicted for offences under Section 302 read with section 34 of the Indian Penal Code [in short, “IPC”] read with Section 120-B of the IPC and have been sentenced to life imprisonment for each of the offences. Additionally, Appellant No.1 has also been convicted under section 364 IPC and has been sentenced to five years of imprisonment for the said offence, with a direction that the sentences will run concurrently. FACTS

#2. The prosecution case, in brief, is that on 05.04.1987, Arun (deceased) and Sunder Prasad (PW-17) were putting up in Arun’s house at Manawan village when Surajdeo Mahto (Appellant No.1) and Raj Kumar approached Arun and asked him to accompany them to the Cinema at Nawada village. While Arun was reluctant initially to accompany them, he eventually agreed when Appellant No.1 volunteered to bear the expenses. Upon Arun’s request, Sunder Prasad (PW-17) also agreed to go along with them to the Cinema. After the show, Raj Kumar and Sunder Prasad returned to Manawan village on 06.04.1987 whereas Arun and Surajdeo Mahto did not come back with them. As Arun did not return, Ramji Mahto (father of Arun; PW-16) enquired from Raj Kumar who told him that Arun and Surajdeo Mahto had gone to Arun’s in-laws’ place in Amwa village.

#3. A few more days passed and Arun had not yet returned home, Arun’s worried family, therefore, sent Raj Kumar to bring him back. Ramji Mahto also requested his fellow villager Kailash Mahto (PW-1) to join him in looking for Arun. They found out that Surajdeo Mahto and Arun had visited the latter’s in-laws’ place on 06.04.1987 and stayed there till 08.04.1987. It was further discovered that the duo had then proceeded to Dopta village wherein Appellant No.1’s sister was married. Thereafter, Appellant No.1 returned to his village Manawan on 10.04.1987, but whereabouts of Arun were still unknown. When asked, Appellant No.1 did not provide any credible information about Arun, B C D E F G H SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR [SURYA KANT, J.] 921 instead, he too disappeared and was not seen for the next few days. Pursuant to Ramji’s request, PW-1 visited Dopta on 10.04.1987 but he too was unable to track down Arun. Since Arun was still untraceable, Ramji Mahto, through his nephew Ishwari Mahto (PW-3A), sent information to the Police, which culminated in the lodging of Sanha Entry No. 227, dated 11.04.1987.

#4. In the meantime, Ram Brikch Paswan (PW-8), Chowkidar, Circle No. 7, heard rumours of a dead body in Ram Sagar Ahar (Reservoir) near Kakolat. On 11.04.1987, he proceeded to the spot and discovered the dead body. He also found an iron dagger and two lungis near the body. The statement of Ram Brikch Paswan was subsequently recorded by the police and treated as a Fardbeyan. Thereafter, Ramchandra Singh (PW-18), Officer-In-charge, Govindpur Police Station reached the spot and prepared the inquest report in the presence of witnesses. Upon inspecting the place of occurrence, additional material such as one pair of slippers, one handkerchief, a knife and a jerrycan made of plastic were also discovered and seized. A seizure list was prepared in the presence of witnesses. The dead body was then sent for post mortem examination.

#5. On 12.04.1987, Ramji Mahto (PW-16) received information that a dead body of a male person was brought in by the Govindpur Police Station. Subsequently, Ramji Mahto along with some co-villagers went to the Police Station and identified that the dead body was that of his son Arun.

#6. The investigation then proceeded in light of the above-stated facts, and upon collection of substantial evidence, a charge sheet was filed against Surajdeo Mahto (Appellant No.1), Prakash Mahto (Appellant No.2), Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The case was committed to the court of 3rd Additional Sessions Judge, Nawadah and charges were framed against the accused persons for offences under sections 364, 120-B and 302 read with section 34 of the IPC. The accused persons abjured their guilt and claimed trial.

#7. In the eventual trial, a total of 18 witnesses were examined by the prosecution. No documentary evidence was relied upon by the prosecution. The case of the prosecution rested heavily upon circumstantial evidence, including deposition of Ramji Mahto (PW-16), father of the deceased. PW-16 in his deposition alleged that Surajdeo A B C D E F G H 922 SUPREME COURT REPORTS [2021] 8 S.C.R. Mahto (Appellant No.1) had lured the deceased away on the pretext of watching cinema on 05.04.1987. PW-16 deposed that “Arun told him that he was not ready to go. Surajdeo told him that he will bear the cost. Thereafter on being pressurized by Surajdeo, Arun went out with Surajdeo, Raj Kumar and Sunder”. PW-16 also deposed that it was at his instance that Ishwari Mahto (PW-3A) went and informed the police on 11.04.1987 about Arun’s disappearance, and on 12.04.1987 he visited Govindpur Police Station and identified the dead body of Arun. PW-16 further identified one of the seized lungis belonging to Suarjdeo Mahto (Appellant No.1). The cross-examination of PW-16 also brought to light the motive attributed to the accused persons: the relations between the parties were strained after a Panchayati (village meeting) had been held in connection with the illicit relationship of the deceased with the sister of Appellant No.1.

#8. Likewise, Ishwari Mahto (PW-3A) deposed that he had last seen Arun in the company of Appellant No.1, Raj Kumar and Sundar on 05.04.1987, and he was informed by Appellant No.1 that they were going to see the cinema. Ishwari Mahto further shed light on the feud between the parties and he stated that “Previously the families of Surajdeo and Arun had visiting and dining terms with each other, but it stopped after the month of Magh”. Sunder Prasad (PW-17) corroborated the deposition of PW-16, and stated that Appellant No.1 pressurized Arun to accompany him and Raj Kumar to watch Cinema. PW-17 also deposed to accompanying Appellant No.1, Arun and Raj Kumar to the Cinema and further revealed that after the Cinema, instead of returning back to their village, Appellant No.1 forced the group to visit Kumbhrawan village. PW-17 stated that upon Appellant No.1’s insistence, they spent the night in Prakash Mahto’s house (Brother-in law of Surajdeo; Appellant No.1). The next day, i.e., 06.04.1987, when PW-17 insisted on returning back to the village, Surajdeo Mahto (Appellant No.1) informed him that he and Arun will be visiting Amwa Village.

#9. Dilkeshwar Mahto (PW-2), Arun’s father-in-law, deposed that Arun and Appellant No.1 visited his house in Amwa Village on the evening of 06.04.1987 and stayed there till 08.04.1987. He further deposed that “On Wednesday, I asked Arun and Surajdeo insistently to stay further, but Surajdeo did not agree and took Arun with him saying that they had to go Dopta.” A B C D E F G H SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR [SURYA KANT, J.] 923

#10. Bipat Mahto (PW-4), deposed that on Thursday, i.e., 09.04.1987, he received information from his grandson that Arun was in Kumbhrawan village and was staying at the house of Prakash Mahto (Appellant No.2). Since PW-4 was Arun’s uncle and also resided in the same village, he and his wife went to invite Arun to their place. He stated, “We met Arun, Prakash and Surajdeo at that place. I invited Arun to come to my place and take meal there. Prakash told me that he had arranged food for them, hence they would go after taking meal at his place.” He further stated that despite Appellant No.2’s assurance, Arun did not come to their place. Later, when PW-4’s wife went again to call Arun, she was informed by Appellant No.2’s wife that Arun had gone back. Sheodani Mahto (PW-3), who is the son of PW-4 and the cousin of the deceased, also deposed about the presence of Arun in Kumbhrawan village on 09.04.1987. According to him, when he was returning back to the village, he saw Arun on the outskirts of the village in the company of Surajdeo, Prakash, Raj Kumar and Shankar, and upon asking them where they were going, Surajdeo informed PW-3 that all of them were going towards Kakolat village.

#11. We may now consider the statements of Bharat Singh (PW- 10), Kashi Mahto (PW-11), Ram Prasad (PW-12), Baleshwar Prasad (PW-13) and Mathura Saw (PW-14). PW-10 and PW-11 deposed that on the night of 09.04.1987, they had heard a motor vehicle (tractor) going in the direction of Kakolat. However, PW-10 and PW-11 had not seen the passengers in the vehicle. PW-12, PW-13 and PW-14 were all present near PW-14’s shop in the late hours of 09.04.1987 and they deposed about seeing two persons returning from Kakolat. PW-12 went further and stated that he was able to identify the persons who had stopped near PW-14’s shop. Upon seeing the accused persons in Court, PW-12 identified Appellant No.2 as one of the persons who had come to the shop that night. PW-12 in his cross-examination admitted that the police had not asked him to take part in a Test Identification Parade [in short, “T.I.P.”]. It is pertinent to mention that this set of evidence only finds relevance because the dead body of Arun was discovered in Ram Sagar Ahar which was near Kakolat village.

#12. The evidence of Kailash Mahto (PW-1) and Umeshwar Prasad (PW-5) also bears some relevance to the prosecution’s case. PW-1 deposed that on 09.04.1987 he was requested by PW-16 to search for Arun. He further stated that the next day, i.e., 10.04.1987, he went to A B C D E F G H 924 SUPREME COURT REPORTS [2021] 8 S.C.R. A B C D E F G H the market and there he found Appellant No.1. PW-1 claims that when he enquired about Arun’s whereabouts from him, Surajdeo Mahto (Appellant No.1) told him that after viewing the cinema, Arun had gone to Amwa village whereas he went to Dopta village. PW-5 too has deposed that he met Surajdeo on 10.04.1987 at Barnwal Medical Hall at Hisua where Appellant No.1 told him that Arun had gone to Delhi.

#13. Ram Brikch Paswan (PW-8), Chawkidar Circle No.9, was the one who discovered the dead body of Arun on 11.04.1987. In his cross-examination he deposed that he had heard rumors of a dead body in Ram Sagar Ahar on the night of 10.04.1987 itself, however, it being night time and the place being a forested area, he could go there on the following day only. PW-6, is the Doctor who conducted the post mortem examination of the dead body. Upon examining the injuries present on the deceased’s body, PW-6 opined that the injuries were sufficient to cause death in the normal course of nature, and the time elapsed from death was 36 to 72 hours.

#14. The case of the accused persons, as recorded in their statements under section 313 of the Code of Criminal Procedure, 1973 was one of denial. No other evidence was led by the defence.

#15. The Trial Court was conscious of the fact that in order to prove the guilt of the accused by means of circumstantial evidence, the chain of evidence should be completed so as to exclude all the hypothesis of innocence of the accused. Upon extensively scrutinizing the deposition of witnesses, the Trial Court observed that there was a paucity of eyewitnesses to explain circumstances in which the deceased met his end and the evidence on record fell short of establishing the complicity of Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The Court, however, held that the circumstantial evidence on record did suggest that Appellant No.1 lured the deceased out of his house on 05.04.1987; remained with him all along; Appellant No.2 then joined them on 09.04.1987; and thereafter the present appellants conspired and murdered the deceased near Kakolat. Negating the contentions raised by the defence, the Trial Court believed the testimony of PW-16 in toto and held that purported motive as well as the identification of incriminating material by PW-16 further established the guilt of the appellants. While the Trial Court observed that there were some inconsistencies in the case put forth by the prosecution, but those were held to be “petty details” and minor contradictions. SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR [SURYA KANT, J.] 925

#16. The Trial Court further noted that Appellant No.1 had exhibited behaviour that could not have been considered normal. Judicial notice of the false and evasive replies given by Appellant No.1 to PW-1 and PW-5 when they inquired about the whereabouts of the deceased was also taken. The Court held that since various links in the chain of evidence have been satisfactorily proved, the false explanation given by Appellant No.1 could be construed as an additional link in the chain of evidence, which would lend further support to the prosecution case. The Court further observed that when enquiries were taking place, instead of helping in the search of Arun, Appellant No.1 absconded, and he surrendered before the court on 18.04.1987 only, when coercive measures were undertaken to compel his appearance. Lastly, unconvinced by the defense taken by the Appellant, the Trial Court opined that the plain denial of the prosecution allegations by the accused persons was nothing but an attempt to screen themselves from the “rigours of legal punishment”. The Trial Court thus held that the circumstantial evidence in the instant case was clinching, and consequently convicted the present appellants.

#17. Discontented with their conviction, the appellants preferred an appeal before the Patna High Court. Upon a reappraisal of the evidence on record, the High Court observed that the prosecution witnesses were able to provide a date and stage wise testimony in order to prove the prosecution case. The High Court further laid emphasis on the false information provided by Appellant No.1 to PW-5. Considering these aspects, the High Court vide the impugned judgement dated 20.05.2010 affirmed the findings of the Trial Court and upheld the conviction and sentence of the appellants.

#18. The aggrieved appellants are now before this Court. CONTENTIONS

#19. We have heard Learned Counsel for the appellants at considerable length. The principal contention is that the entire case rested on circumstantial evidence and there was no eye-witness to the alleged incident. Learned Counsel submitted that no independent witnesses had been examined by the prosecution and all the witnesses were either relatives or close friends of the complainant party. The Counsel further pressed that the Courts below have completely erred in relying upon the testimony of PW-10 to PW-14. As far as Appellant No.2 is concerned, it was submitted that only evidence against him was that of Sheodani Mahto A B C D E F G H 926 SUPREME COURT REPORTS [2021] 8 S.C.R. A B C D E F G H (PW-3) and Baleshwar Prasad Yadav (PW-12). The Counsel asserted that PW-3 had seen the deceased in the company of Appellant No.2 two days prior to the recovery of the dead body, and hence the evidence of PW-3 did not support the prosecution case. Casting doubts on the credibility of the evidence of PW-12, it was claimed to be highly improbable that PW-12 was able to see the face of Appellant No.2 only through the light of a lantern on a pitch-dark night. Learned Counsel further contended that the failure on the part of the investigating agency not to send the knife recovered at the spot of occurrence for forensic examination was fatal to the prosecution case. Hence, it was urged that the Courts below fell in grave error in convicting the appellants merely on the basis of ‘last seen theory’.

#20. In all fairness, we may notice an additional plea taken by Appellant No.1, which has been raised for the first time before this Court. It was claimed that Appellant No.1 was a ‘juvenile’ on the date of occurrence. In support of such claim, Learned Counsel relied on the copies of ‘School Leaving Certificate’ along with an ‘admit card’ issued by the Bihar School Examination Board, according to which Appellant No.1 was purportedly born on 01.03.1970. As the date of occurrence was between 09.04.1987 to 11.04.1987, it is submitted that Appellant No.1 was 17 years of age at that time and therefore, a juvenile. To further buttress this claim, Learned Counsel for the appellants drew our attention to section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the decision of this Court in Abuzar Hossain alias Gulam Hossain v. State of West Bengal1.

#21. On the other hand, Learned Counsel appearing for the State of Bihar submitted that there has been a concurrent finding of guilt by two courts on minute examination of the evidence on record which does not warrant any interference by this Court. Relying upon Inspector of Police, Tamil Nadu v. John David2, it was urged that conviction in cases of circumstantial evidence is permissible. The State Counsel passionately argued that the chain of circumstances in the present case is complete in every respect. He made pointed reference that First, the motive, as recorded by the Trial Court, was clearly established in the present case. Second, both the courts below have concurrently held that the deceased was last seen alive in the company of the Appellants.