High Court · 2012

d Gopi. 3. In support of their case, prosecution examined as many as 18 (eighteen) witnesses. The two accused were, then, examined under Section 313 Cr.P.C. In the ir examinations aforementioned, both the accused denied that they had committed the offence, which they were alleged to have committed, the case of the defence being that of denial. The further case of the accused-appellant, Biswajit, was t hat his father had sustained injury on his head and that the blood stains, which had been found on the said currency notes and pay slip, were of his father. How ever, it is noteworthy that the facts, that the blood stained currency notes and pay-slip were recovered from under the bed of the accused-appellant and the sam e were seized by the police, remained unchallenged. This apart, in support of h is plea that his father had sustained injury on his head and/or that the blood s tains, found on the said currency notes and the pay slip, were of his father, no evidence was adduced by the appellant Biswajit Bhowmik.

4. Having found that the incriminating materials were not sufficient to con vict accused Gopi Dutta, the learned trial Court acquitted him accordingly; but, on having found the present accused-appellant guilty of the offence of murder, learned trial Court convicted him accordingly and passed sentence against him as mentioned above.

5. Aggrieved by his conviction and the sentence, which has been passed agai nst him, accused, Biswajit Bhowmick, as a convicted person, has preferred this a ppeal. As against the acquittal of accused, Gopi Dutta, there is no appeal or r evision. 6. We have heard Mr. MA Sheikh, learned counsel, for the appellant, and Mr. D Das, learned Additional Public Prosecutor, Assam. While considering the present appeal, it needs to be noted that no witne 7. ss has been examined by the prosecution, who claims to have witnessed the accuse d-appellant assaulting and/or killing Sanjib Singh. The case of the prosecution, therefore, rests on circumstantial evidence. The principles, governing conviction of an accused in a case, which rest 8. s on circumstantial evidence, are fairly well settled, which we would advert to a little later. 9. Bearing in mind what is indicated above, we, now, come to the medical ev idence on record. In this regard, it is noteworthy that the doctor (PW2), who h ad, on 01.03.2005, admittedly, conducted post mortem examination, on the dead bo dy of Sanjib Singh, found as follows: (cid:28)1. Skull bone fractured over the parietal area with haematoma.

2. Injury over the upper left eye. There was clotted blood and the left ear was in bruised condition. No other inj ury was found. (cid:29) In the opinion of the doctor, death was due to shock and hemorrhage, res 10. ulting from the head injury, which the said deceased had sustained. It is also t he opinion of the doctor that the head injury could cause immediate death of the deceased.

11. Notwithstanding the opinion, so given by the doctor, that the head injur y, found on the said dead body, could have caused immediate death, the doctor ha s also opined that if such a patient is treated at hospital, he may survive and that such type of injuries may be caused on being dashed against hard substance with sufficient force or fall from great height upside down. 12. So far as providing of medical treatment is concerned, one has to refer, in this regard, to Section 299 IPC. Explanation 2 to Section 299 IPC, which de fines culpable homicide, reads as under: (cid:28)Explanation 2. Where death is caused by bodily injury, the person, who causes s uch bodily injury, shall be deemed to have caused the death, although by resorti ng to proper remedies and skilful treatment, the death might have been prevented . (cid:29) (Emph asis is added) 13. From the above Explanation, it becomes clear that when a person sustains an injury, which, otherwise, amounts to culpable homicide, the act of the accus ed would remain as culpable homicide even if proper or skilful treatment might h ave prevented death of the injured. The opinion, therefore, given, in the presen t case, by the doctor (PW7) that the said deceased could have survived, had prop er treatment been provided to him, does not have any bearing in determining the question as to whether the acts of the accused-appellant did or did not amount t o culpable homicide. 14. While considering the above aspect of the case, one must bear in mind th at the opinion of an expert, such as, a medical practitioner, though admissible in evidence by virtue of Section 45 of the Evidence Act, is not binding on the C ourt inasmuch as the opinion of an expert is merely advisory in nature and may h elp the Court, in a given case, in arriving at a correct conclusion; but, at the end of the day, it is the responsibility of the Court to determine, with the he lp of expert, if required, the cause of death. If the evidence on record disclos es that the deceased had been beheaded, the conviction of the perpetrator of the crime would not require assistance from a medical practitioner if the Court is, otherwise, satisfied that the head of the deceased was severed from his neck by such a weapon as might have transpired from the evidence on record.

15. In the case at hand, too, the evidence, given by the doctor (PW7) that t he said deceased could have survived if treatment was provided to him, would not absolve the accused-appellant from the responsibility of having committed an ac t of culpable homicide if his act, otherwise, falls within the meaning of culpab le homicide as defined by Section 299 IPC. 16. ection 300, which defines murder, reads: (cid:28)Fourthly - If the person committing the act knows that it is so imminently dang erous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the We may, at this stage, pause here to point out that Clause fourthly of S risk of causing death or such injury as aforesaid. (cid:29)

17. If somebody hits a person on his dead by stone with such force that it c auses fractures of the skull bone, it would be wholly reasonable to infer that t he person, hitting the deceased, knew that his act was so imminently dangerous t hat it must, in all probability, cause death or such bodily injury as is likely to cause death, and if he commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, then, he is said to have comm itted murder. So far as PW3, PW4 and PW5 are concerned, apart from the fact that they 18. have been declared hostile, there is really no other significance of their evide nce inasmuch as their evidence neither advances the case of the prosecution nor defeats the prosecution’s case. Turning to the evidence of PW7, it may be noticed that PW7 has deposed 19. that he knows accused Biswajit, accused Gopi (since acquitted) and late Sanjib a nd, on 28.02.2005, at about 6.00 or 6.30 pm, Sanjib called him up and told him t hat with regard to accounts of cable business, there was some dispute with Biswa jit and he (PW7) should come to his shop and by about 7.00 or 7.30 pm, PW7 went to his shop, where, apart from Sanjib, accused Biswajit and some others were pre sent. It is in the evidence of PW7 that from his own shop, PW7 went to Amu’s sh op, but Amu was not available at his shop. Thereafter, at about 8.00 or 8.30 pm, PW7, accompanied by Sanjib, came to a pan shop near Sanjib’s shop and when they were talking, accused Biswajit came there and Biswajit, again, talked about the accounts and this led to an altercation between Biswajit and Sanjib and they st arted scuffling, but PW7 separated them and, after a little while, Sanjib left a nd, by that time, it was 10.00 or 10.05 pm and, then, Biswajit and he (PW7), too , left and, on the following day, at about 7.30 or 8.00 a.m., he (PW7) came to k now that Sanjib had died. 20. It may be noted that it is in the evidence of PW7 that Biswajit had told him (PW7)that he was to receive from Sanjib Rs.800/-. In his cross-examinatio n, PW7 has clarified that Biswajit asked for money and Sanjib asked for time to make payment and when Biswajit asked for time, the quarrel started. It is in th e evidence of PW7 that when he (PW7) had settled the accounts, Sanjib had accept ed and even the accused, Biswajit, had accepted the accounts, but accused Biswaj it wanted the money and Sanjib was asking for time and, at first, they had alter cation and, then, a scuffle between the two took place. 21. PW7 has deposed that he had seen the dead body of Sanjib, who had injury on his head and also on the face and that, near the dead body, there were stone s, which had blood stains. 22. PW17, an employee of Sanjib’s shop, who knew accused, Biswajit, has depo sed that on the day of the occurrence, Biswajit and Gopi (since acquitted) had s cuffle with the deceased regarding settlement of some account and that Biswajit and Gopi had said that they would teach him (Sanjib) a lesson. 23. The above discussion brings us to the evidence of PW6, whose evidence is that he knows the accused and also knew the deceased. As regards the occurrence , PW6 has deposed that on the night of the occurrence, at about 10:00 pm, when h e was proceeding towards his house from the house of his elder brother, accused Biswajit and deceased Sanjib were having altercation and when he enquired from t hem, they told him that there was some reason. It is in the evidence of PW6 tha t he came to know, on the following day, between 11.30 to 12.00 a.m., the occurr ence of death of Sanjib Singh had taken place. 24. It is in the evidence of PW6 that both, accused, Biswajit, as well as th e said deceased, were cable operators and at the time, when he had seen the said two persons having altercation, the nearby shops were closed. It is also in the evidence of PW6 that the police came to the house of the accused and recovered blood stained money and one paper from under the bed of accused Biswajit and tha t there was blood stains even on the clothes found by police. It is the further evidence of PW6 that in the bathroom, Biswajit’s long 25. pant (i.e., trouser) was found stained with blood and that the trouser was wet. PW6 has also deposed that police had seized the money, paper and the trouser by Ext.2, Ext. 2(1) being his signature. 26. PW6 has also deposed that at the house of Biswajit, apart from Biswajit, his parents also lived there, but he has clarified that the blood stained money was found in Biswajit’s room and a blood stained shirt was found in the bathroo m of Biswajit’s house. PW6 has further deposed that when the said seizures were made, Biswajit was not present at his home. 27. In his cross-examination, PW6 has clarified that he does not know where Biswajit sleeps in his house and he does not know as to whose money and paper ha d been found, which had stains of blood. In fact, according to the evidence of P W6, the house of the accused is a railway quarter. 28. In his cross-examination, PW6 has reiterated that accused Biswajit and t he said deceased were having altercation on the road and that both used to work as cable operators and that there was a dispute, with regard to some dues of the business, which they had done, but he was not aware as to how much was the mone y involved. 29. Coming to the evidence of PW8, we notice that according to his evidence, on the night of the occurrence, at about 11.05 p.m., when he was proceeding fro m his shop towards his house, Sanjib called him from his shop near the Loknath M andir, which is located near the shop of Sanjib, and he (Sanjib) told PW8 that h e would also go with him (PW8) and, then, Sanjib, too, went to his house and he (Sanjib) went to his house and, on the following day, Sanjib’s dead body was fou nd near the Loknath Mandir. This witness was declared hostile and cross-examined by prosecution. The previous statement of PW8, made before the police, however, shows th 30. at he had seen accused Biswajit inside his shop and dead body of Sanjib outside. In the face of the previous statement given to the police by PW8, his evidence, given in the Court, that Sanjib went with him to his house at about 11.05 pm, c annot be believed and must, therefore, be discarded as unbelievable. 31. According to the evidence of PW1, he knows accused Biswajit and that on the night of the occurrence, in the year 2005, when closed his shop and proceede d towards his house to have his dinner, he found that the shop of Sanjib (since deceased) was closed. PW1 has deposed that other shops, in the market, were also closed. PW1 has also deposed that he went home to have his meals and after havi ng his meals, he came to his shop and, while opening his shop, he heard a sound coming from the middle of two shops, whereupon he came out and saw light in the shop of Santosh (PW9), and, then, he called Santosh (PW9) and both of them went to the place, from where the sound had come, and found a man lying in injured co ndition. Thereafter, he (PW1) went to his brother’s PCO and called police, poli ce arrived at the scene of occurrence, but the person, who was lying injured, di ed before he could be shifted to hospital. Later on, he (PW1) came to learn tha t the said dead body was of Sanjib. 32. Close on the heels of PW1, PW9 has deposed that he always sleeps at nigh t at his shop and, on the night of the occurrence, too, he came to his shop at a bout 12.00 a.m. and slept at his shop and that accused Biswajit, sometimes, slee ps at his shop. It is in the evidence of PW9 that on the opposite side of his s hop is the shop of Monu @ Narayan Paul (PW1), who came and told him that he (Mon u) had heard a sound near the shop of Swapan Deb, whereupon PW9 got up from his bed, took a box of match sticks and a candle and, in the light of the burning ca ndle, they found an injured lying, but they could not recognize the injured as t he injured was lying with his face down. It is in the evidence of PW9 that he ( PW9) asked Monu (PW1) to call police, police came and the injured died in their presence. It is in the evidence of PW9 that he (PW9), after many people assembl ed there, could recognize that the injured was Sanjib Singh. 33. It is also in the evidence of PW9 that accused Biswajit was a business p artner of the said deceased and there was quarrel between them with regard to mo netary transaction and that police engaged sniffer dog, which went to the house of accused Biswajit, and police recovered money and clothes from his bed and tha t he (PW9) saw some blood stains on the currency notes, which the police had sei zed. According to the evidence of PW9, police also seized three boulders, which were found lying by the side of the said dead body. What may also be noted is th at the evidence of PW9 is that when he (PW9) came out of his shop, he (PW9) saw accused Biswajit busy in unlocking the door of his shop and, at that time, accus ed Biswajit was wearing jeans and a sweater-like ganjee. 34. It may be noted that the evidence of PW18 (Investigating Officer of the case) is that sniffer dog led them to the house of the accused-appellant, Biswa jit, and recovery of the blood-stained currency notes, etc., as has been deposed to by PW6, PW9, PW10, PW11, PW13, PW15 and PW18, were seized from the house of accused Biswajit.

35. We, now, come to the evidence of PW10, widow of the said deceased. Her evidence is that Sanjib, on the day of occurrence, left his house at 5 pm and re turned. It is in the evidence of PW10 that her husband (Sanjib) left home, once again, at about 10.30 pm, but before leaving the house, Sanjib told her (PW10) that he would go to the house of a person to take money and hand over the same t o another person and, while Sanjib was leaving the house, she (PW10) saw accused Biswajit and accused Gopi (since acquitted) and they invited him (Sanjib) and t hough she (PW10) asked her husband not to go with Biswajit and Gopi, Biswajit an d Gopi told her (PW10) that she need not worry and that they would send her husb and back immediately. 36. What is of paramount importance to note, now, is that, according to the evidence of PW10, widow of the said deceased, at about 1.00 a.m., on that very night, Santosh and Gopi came to her (PW10’s) house and called her husband’s brot her by name and, then, her husband’s elder brother, who was also present in the house, opened the door and Santosh and Gopi told him that Sanjib was lying with injury on his head between two shops, whereupon she, her husband’s elder brother and elder sister of her husband, went to the place of occurrence and saw injury on the head of her husband and blood was oozing out therefrom staining the whol e body. It is in the evidence of PW10 that somebody informed police and she beca me senseless on seeing the dead body. 37. It is in the evidence of PW10 that Biswajit and Gopi had called her husb and at late hours and there was monetary dispute between her husband and accused Biswajit and it is because of this reason that Biswajit had killed her husband and that accused Biswajit had always threatened to kill Sanjib over monetary dis pute. 38. In her cross-examination, PW10 has clarified that at the time of departu re of her husband, at 10.30 p.m., she was also present in front of their gate an d as she did not understand Bengali, she called her mother-in-law, who according ly came. It is in the evidence of PW10 that she had noticed that her husband wa s in tension and, on being asked, he told her (PW10) that there was some monetar y dispute with the accused. 39. The evidence of PW10, as regards the fact that the Biswajit and Gopi ha d come and taken away her husband, could not be shaken at all by the defence in her cross-examination inasmuch as there was, virtually, no cross-examination of PW10, particularly, on the aspect of her evidence that Sanjib left his house on the night of the occurrence, at about 10.30 p.m., in the company of the accused- appellant, Biswajit Bhowmik, and the said Gopi; it was merely suggested to PW10 by the defence that her evidence, given to the effect that the said two accused had called her husband, on the night of the occurrence, is not correct. This su ggestion was, however, denied by PW10. We, therefore, see no reason to disbelie ve the evidence of PW10. 40. Let us, now, discuss the evidence of PW11, wife of Late Ranjit Singh, el der brother of the deceased, Sanjib Singh. According to her evidence, on the day of the occurrence, between 10.00 and 10.20 pm, Sanjib was at his house and he w as called by accused Biswajit and Gopi, as told to her by the wife and mother of the deceased, and, at about 11.00 or 11.30 pm, Santosh and Gopi came to their h ouse and informed them that Sanjib was lying injured between the shops of Manu P aul and a tailor, whereupon she (PW11), her husband and widow of the said deceas ed went to the place, where Sanjib was lying, they saw injury on the head of San jib and stones lying by his side and when her husband met the injured, he uttere d the word ’Biswajit’ and nothing else, but her (PW11’s) husband is no longer al ive and after saying the word Biswajit, Sanjib died, whereupon her husband lodge d Ejahar with the police and, on the next day, police brought sniffer dog, which , as reported by her (PW11) husband, went to the house of accused Biswajit. 41. We do not find the evidence of PW11 inspiring confidence inasmuch as PW1 0 has, nowhere, deposed that she had reported to PW11 that her husband had been called and taken away by accused Biswajit and accused Gopi (since acquitted). T his apart, the assertion of PW11, that injured Sanjib had uttered the word, (cid:28)Bi swajit (cid:29), before he succumbed to his injuries, would have appeared in the Ejahar , which the husband of PW11 had lodged with the police had Sanjib uttered the na me of Biswajit. But the said Ejahar gives no indication, at all, that the injur ed Sanjib had uttered the word, (cid:28)Biswajit (cid:29), before he died. In fact, the Ejahar , which late Ranjit Singh had lodged, clearly stated that some unknown persons h ad killed his brother, Sinjib, by hitting him with stone. 42. We may pause, at this stage, to point out that though the said Ejahar, w hich Late Ranjit Singh had lodged, has been treated as the First Information Rep ort, the evidence, given by PW1, when read in the light of the evidence of PW9, clearly shows that long before the Ejahar was lodged by Late Ranjit Singh, polic e had already been telephonically informed by PW9 from the PCO of his brother an d police had accordingly arrived at the scene of the occurrence. 43. Coming to the evidence of PW12, we notice that, according to his evidenc e, on 10.03.2005, when he had been working as Senior Scientific Officer at Foren sic Science Laboratory, Guwahati, he had received, in a sealed packet, one curre ncy note of fifty rupees denomination with suspected blood stains, another curre ncy note with five rupees denomination with suspected blood stains, one pay slip of October, 2005, of Jitendra Bhowmik (i.e., father of the accused-appellant, B iswajit Bhowmik) with suspected blood stains, one sealed packet of one woolen fu ll-sleeve open shirt suspected to have blood marks, one long pant said to be was hed and suspected to have blood stains and three concrete stones with suspected blood stains. The result, according to the evidence of PW12, was that the fifty rupees note, the five rupees note, the full sleeve sweater and the concrete ston es gave positive test for human blood; but the trouser gave negative test for hu man blood. However, the group of the blood, according to the evidence of PW12, could not be ascertained due to inconclusive result of the same and, accordingly , he (PW12) submitted his report, which is Ext.3. 44. Let us, now, come to the evidence of PW16, mother of the said deceased. Her evidence is to the effect that she knows both the accused, i.e., Biswajit an d Gopi (since acquitted), who were visitors to her house, and that, on the night of the occurrence, at about 10.00 or 10.30 pm, Biswajit and Gopi called and too k her son, Sanjib, away with them and, after about half-an-hour, they heard that Sanjib had been injured and, on hearing the news, she became unconscious. In h er cross-examination, PW16 has clarified that, when her son, Sanjib, was leaving home, she asked him as to where he was going at night and, at that point of tim e, Gopi (since acquitted) and Biswajit told her that Sanjib would come back late r. It needs to be noted that PW16 has denied, in her cross-examination, the sug gestion of the defence that the said two accused had not called and taken away h er son, Sanjib, from his house and her evidence, as regards the fact that the ac cused-appellant, Biswajit, was the one of the persons, who had taken away her so n, Sanjib, from her house on the night of the occurrence, at about 10.30 p.m., r emained unshaken. PW18 is the witness to the seizure of the money recovered with the help 45. of sniffer dog. According to him, the sniffer dog led them to the house of accus ed Biswajit and police recovered currency notes with blood stains and a pay slip with suspected blood stains from the house of accused Biswajit. Before proceeding further, it may be noted that in his statement, record 46. ed under Section 313 CrPC, accused-appellant, Biswajit, has stated that his fath er sustained injury on his head and the blood-stains, which the currency notes a nd the pay-slip bore, were, actually, the blood of his father. No evidence, how ever, exists on record to show that Jatindra Bhowmik (father of accused Biswajit Bhowmik) had sustained injury on his head and/or that the said blood stains on currency notes and the pay-slip were of his father. 47. Even if, for a moment, we take the view that the said currency notes and the pay-slip, which had been found stained with human blood, were, at any point of time, in possession of the accused-appellant, Biswajit, the evidence, as has been discussed above, clearly shows that there was a dispute between the accuse d-appellant, Biswajit Bhowmik, on the one hand, and Sanjib (since deceased), on the other, with regard to a sum of Rs. 800/-, which Sanjib had admitted to be pa yable to the accused-appellant, Biswajit. While, however, Sanjib wanted some ti me to make the payment, the accused-appellant, Biswajit, was insisting that the payment be made immediately. This led to an altercation between the two and, ev entually, a scuffle took place between them, but PW7 intervened and separated th em. The evidence of PW17, an employee of Sanjib, shows that the appellant had v owed to teach a lesson to Sanjib. Even the evidence of PW6 clearly shows that S anjib and the accused were having altercation even at about 10.00 p.m., when PW6 happened to close his shop and proceed towards his house. The facts, thus, tha t the accused-appellant had altercation with Sanjib and even had a scuffle with him stands well proved by the evidence on record. The evidence on record also c learly reveals, in the light of the evidence of PW10 (widow of the deceased) and PW16, i.e., the mother of the deceased, that Sanjib left his house, at about 10 -30 p.m., in the company of the accused-appellant, Biswajit Bhowmik, and accused Gopi (since acquitted) and, at that point of time, Sanjib told his wife (PW10) that he would be taking money from someone so as to pay someone else. 48. Thus, what surfaces from the above discussion of the evidence on record is that Sanjib left his house, at about 10.30 p.m., in the company of the accuse d-appellant and Gopi (since acquitted) and, at about 12.00 O’clock, on that very night, Sanjib was found lying injured near the shop of Biswajit. Since there w as no quarrel or dispute between Gopi and the said deceased, Gopi could have bee n acquitted and has been rightly acquitted by the Court below and this acquittal we cannot interfere with. However, as far as the accused-appellant, Biswajit Bhowmik, is concerned 49. , since the evidence on record reveals that the accused-appellant wanted repayme nt of his dues, he (accused-appellant) had a motive. There is no evidence, and it is not even claimed by the accused-appellant, that he received his dues. Con sequently, it can safely be held that the accused-appellant had a motive to harm Sanjib. Since the dispute, with regard the money, which the said deceased had, was with the accused-appellant and it was the accused-appellant, who was with S anjib at the time, when he left his house, at about 10.30 p.m., on the night of the occurrence, the onus lied on the accused-appellant to show as to where he ha d left Sanjib, on the night of the occurrence, after they had taken Sanjib from his house. No evidence was, however, given, in this regard, by the accused-appe llant and no explanation, plausible or otherwise, is discernible, in this regard , from the evidence on record. What surfaces from the above discussion is that the accused-appellant ( 50. Biswajit Bhowmik) had the motive to harm Sanjib and since Sanjib was last seen w ith the accused-appellant, who had inimical relationship with Sanjib, and, there after, Sanjib was never seen alive, the learned trial Court had every justificat ion for holding that it was the accused-appellant, who had injured Sanjib so sev erely that Sanjib died. 51. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar v. State of M.P., reported in 1952 SC R 1091, wherein the Court has pointed out that the circumstances, which are reli ed upon, must be fully established and the chain of evidence, furnished by the c ircumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the inno cence of the accused. The relevant observations, appearing in Hanumant Govind Na rgundkar (supra), read as under: (cid:28)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 shou ld 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 shoul d be such as to exclude every hypothesis but the one proposed to be proved. In o ther words, there must be a chain of evidence so far complete as not to leave an y reasonable ground for a conclusion consistent with the innocence of the accuse d and it must be such as to show that within all human probability the act must have been done by the accused. (cid:29) 52. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be consistent with the hypothesis of guilt of the accused.

53. Elaborately dealing with the principles, laid down in Hanumant Govind Na rgundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointe d out, at para 152, thus: (cid:28)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 esta blished: (1) the circumstances from which the conclusion of guilt is to be drawn should b e fully established. It may be noted here that this Court indicated that the circumstances concerned (cid:28)must or should (cid:29) and not (cid:28)may be (cid:29) established. There is not only a grammatical b ut a legal distinction between (cid:28)may be proved (cid:29) and (cid:28)must be or should be proved (cid:29) as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra wh

54. ere the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] (cid:28)Certainly, it is a primary principle that the accused must be and not merely ma y 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. (cid:29) (2) the facts so established should be consistent only with the hypothesis of th e guilt of the accused, that is to say, they should not be explainable on any ot her 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, a (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. (cid:29) Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar ( AIR 1955 SC 801), too, that in a case of circumstantial evidence, not only should the vario us links in the chain of evidence be clearly established, but the completed chai n must be such as to rule out a reasonable likelihood of the innocence of the ac cused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court poi nted out that in a case like this, where various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time a nd situation, and when he (accused) offers no explanation, which if accepted, th ough not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explana tion would itself be an additional link, which completes the chain. 55. The case of Joseph Vs. State of Kerala, reported in (2000) 5 SCC 197, is a case, which is relevant, while considering the theory of last seen together. In Joseph (supra), the facts were, as noted by the Supreme Court, in its subsequ ent decision, in State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 , as under: (cid:28)20. cts were that the deceased was an employee of a school. The appellant representi ng himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary’s Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permi ssion of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was a lso found as a fact that the deceased was last seen alive only in his company, a nd that on information furnished by the appellant in the course of investigation , the jewels of the deceased, which were sold to PW-11 by the appellant, were se ized. There was clear evidence to prove that those jewels were worn by the decea sed at the time when she left the Convent with the appellant. When questioned un der Section 313 Cr.P.C., the appellant did not even attempt to explain or clarif y the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In this backdrop, the Cou rt held:- \Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and f alse answers given to court, when questioned, found the missing links to be supp lied by such answers for completing the chain of incriminating circumstances nec In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197; the fa essary to connect the person concerned with the crime committed (see State of Ma harashtra Vs. Suresh, (2000) 1 SCC 471). That missing link to connect the accuse d appellant, we find in this case provided by the blunt and outright denial of e very one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accus ed with the death and the cause for the death of Gracy\. 56. From the observations, made above, it becomes clear that when a fact is explainable and within the special knowledge of the accused, facing trial, and t he accused chooses not to offer explanation, it becomes an additional link in th e circumstances in the sense that the omission to explain is a missing link, whi ch may be treated to have been supplied for arriving at the answer, which the ci rcumstantial evidence makes or reach. 57. In Ram Gulam Choudhary and others Vs. State of Bihar, reported in (2001) 8 SCC 311, the Supreme Court has pointed out that it is permissible, in a given case, to draw an inference from the silence of an accused if the answer could b e given by the accused alone even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt inasmuch as Section 106 would apply to cases, wh ere prosecution successfully proves the facts from which a reasonable inference can be drawn. 58. In fact, the case of Sahadevan alias Sagadevan Vs. State, represented by Inspector of Police, Chennai, reported in (2003) 1 SCC 534, is a case, which is closely akin to the case at hand, wherein the deceased was seen in the company of the appellant from the morning of March 5, 1985, till, at least, 5 pm on that day, when he was brought to his house and, thereafter, his dead body was found in the morning of March 6, 1985. In this fact situation, the Supreme Court obser ved: \Therefore, it has become obligatory on the appellants to satisfy the court as t o how, where and in what manner Vadivelu parted company with them. This is on th e principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the ci rcumstances in which they parted company. In the instant case the appellants hav e failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever\. 59. Having taken into consideration the cases of Joseph (supra), Ram Gulam ( supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (s upra), that Section 106 of the Evidence Act makes it clear that when any fact is especially within the knowledge of a person, the burden of proving that fact is on him.

60. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a perso n is last seen with the deceased, he must offer an explanation as to how and whe n he parted with the company of the deceased. The Supreme Court has, in fact, go ne to the extent of observing that in such a case, the accused must furnish an e xplanation, which appears to the Court to be probable and satisfactory and if th e accused does so, he must be held to have discharged his burden; but if the acc used fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. The Su preme Court has further pointed out, in Kashi Ram (supra), that if, in a case, r esting on circumstantial evidence, the accused fails to offer reasonable explana tion in discharging the burden placed on him by virtue of Section 106, his silen ce is an additional link in the chain of circumstances proved against him. 61. Clarifying the object of Section 106, The Supreme Court has laid down, i n Kashi Ram (supra), that Section 106 does not shift the burden of prove in a cr iminal trial inasmuch as the burden of proof always rests on the prosecution, bu t it lays down the rule that when the accused does not throw any light upon the facts, which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his f ailure to adduce any explanation as an additional link, which completes the chai n. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 19 60 SC 218). The relevant observations, appearing in Kashi Ram (supra), read as u It is not necessary to multiply with authorities. The principle is well nder: (cid:28)23. settled. The provisions of Section 106 of the Evidence Act itself are unambiguou s and categoric in laying down that when any fact is especially within the knowl edge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 10 6 of the Evidence Act. In a case resting on circumstantial evidence if the accus ed fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances prove d against him. Section 106 does not shift the burden of proof in a criminal tria l, which is always upon the prosecution. It lays down the rule that when the acc used does not throw any light upon facts which are specially within his knowledg e and which could not support any theory or hypothesis compatiable with his inno cence, the Court can consider his failure to adduce any explanation, as an addit ional link which completes the chain. The principle has been succinctly stated i n Re. Naina Mohd. AIR 1960 Madras, 218. (cid:29) Ordinarily, the circumstance of last seen together would be relevant, wh 62. en it is established by the evidence on record that the time gap between the poi nt of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person b eing with the deceased can be completely ruled out. Thus, the time gap between t he accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence i n such matters. What is, however, of paramount importance to note is that it can not be always stated that the evidence of last seen together must be rejected me rely because the time gap between the point of time, when the accused persons we re seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jac ket formula in respect of duration of time gap. Obviously, it would depend on th e facts of a given case if the circumstance of the last seen together is so mate rial that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bo dhraj v. State of J & K, reported in (2002) 8 SCC 45, State of U.P. v. Satish, r eported in (2005) 3 SCC 114, Ramreddy Rajesh Khanna Reddy v. State of A.P., repo rted in (2006) 10 SCC 172 and Jaswant Gir v. State of Panjab, reported in (2005) 12 SCC 438. The Supreme Court has summarized the theory of last seen together, in State of Goa v. Sanjay Thakran and another, reported in (2007) 3 SCC 755, at Para 34, as follows: (cid:28)From the principle laid down by this Court, the circumstance of last-seen toget her would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the tim e gap between the point of time when the accused and the deceased were found tog ether alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The tim e gap between the accused persons seen in the company of the deceased and the de tection of the crime would be a material consideration for appreciation of the e vidence and placing reliance on it as a circumstance against the accused. But, i n all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the decease d last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of t ime gap in this regard and it would depend upon the evidence led by the prosecut ion to remove the possibility of any other person meeting the deceased in the in tervening period, that is to say, if the prosecution is able to lead such an evi dence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen toget her, although there is long duration of time, can be considered as one of the ci rcumstances in the chain of circumstances to prove the guilt against such accuse d persons. Hence, if the prosecution proves that in the light of the facts and c ircumstances of the case, there was no possibility of any other person meeting o r approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be r elevant evidence. For instance, if it can be demonstrated by showing that the ac cused persons were in exclusive possession of the place where the incident occur red or where they were last seen together with the deceased, and there was no po ssibility of any intrusion to that place by any third party, then a relatively w ider time gap would not affect the prosecution case. (cid:29) 63. In the backdrop of the law, as discussed above, when the facts of the pr esent case are taken into account, it becomes clear that though the deceased, Sa njib, was seen last in the company of the accused-appellant, Biswajit Bhowmik, a nd his co-accused, Gopi (since acquitted), the fact remains that the dispute, wi th regard to payment of dues, was between the accused, on the one hand, and the deceased, on the other, and though the deceased had agreed to make payment and m erely wanted time, the accused-appellant was unwilling to give time and this had resulted into an altercation and, eventually, there was a scuffle between them and they had to be separated. Even while leaving his house, the deceased had tol d his wife that he was to borrow money from someone in order to make payment to another person. If the sequence of events are properly arranged and considered t ogether, there remains no room for doubt that it was for the accused-appellant t o explain, in the face of the evidence on record, as to when, where and under wh at circumstances he had part the company with the deceased. This was, however, n ot done by the accused-appellant. 64. In the face of the overwhelming evidence on record against the accused-a ppellant pointing to him as the one, who had killed Sanjib Singha, the silence o f the accused-appellant and his inability to offer any explanation as to when, w here and under what circumstances he happened to part company with the deceased with whom he had been seen having altercation twice, once in the evening by PW9 and 7 and, later on, by PW6 as late as at 10 o’ clock at night and Sanjib was fo und almost dying at about 12 o’ clock at night. 65. In a situation, as the present one, the omission, on the part of the acc used to offer any explanation as to when, where and under what circumstances, if we may reiterate, he happened to part company with the deceased, Sanjib Singh, can be treated as the missing link and furnish an additional piece of evidence a gainst the accused-appellant.

66. Because of what have been discussed and pointed out above, we do not fin d that the conviction of the accused-appellant, for the offence of murder, suffe rs from any infirmity, legal or factual. His conviction, therefore, does not ne ed any interference nor does the sentence, which has been passed against him, ca lls for any interference by this Court. In the result and for the reasons discussed above, we uphold the convict 67. ion of the accused-appellant and the sentence passed against him. This appeal a ccordingly fails and the same shall stand dismissed. 68. Send back the LCR.