High Court · 2012

On the basis of the FIR, a case was registered and investigation was launched by the police. On completion of the investigation, charge sheet w as submitted u/s 302/201/34 IPC against the accused persons, namely, Subodh Das, Sajal Das, Sanjay Das and Dubaraj Das. The case was committed to the Court of Sessions for trial. During trial, the learned Sessions Judge framed formal char ge u/s 302/201 IPC against the accused above named.

5. The prosecution side examined as many as 13 witnesses, including the Medical Officer and the Investigating Officer. On conclusion of the record ing of the prosecution evidence, the defence statements of the accused persons w ere recorded by the learned Sessions Judge, in terms of provisions of Section 31 3 CrPC. All the accused took the stand of total denial. The accused persons al so declined to adduce any evidence in their defence.

6. On conclusion of the hearing, learned Sessions Judge, convicted the accused /appellants above named u/s 302/201/34 IPC and sentenced them as afo resaid, giving rise to this appeal. However, other two co-accused persons, namely, Sanjay Das and Dubaraj Da s, who were facing trial with appellants, were acquitted from the charges farmed against them and they were set at liberty by the trial Court.

7. We have heard Mr. BK Mahajan, learned counsel for the appellants and Mr. KA Mazumdar, learned Addl. Govt. Advocate for the State.

8. Learned counsel for the appellants strenuously submitted that th e witnesses did not disclose about the incident of missing of the deceased for a bout 10 days and subsequently thereafter, suddenly the witnesses came forward to say that the deceased was last seen in the company of the accused/appellants. Learned counsel for the appellants pointed out that the aforesaid conduct of the witnesses, being unnatural conduct, shatters the foundation of the prosecution case.

9. Learned counsel for the appellant submitted that conduct of the witness remaining silent in disclosing the facts of having seen the deceased in the comp any of the accused is suspicious and furthermore there is no direct evidence aga inst the accused to connect them with the crime .Besides, no enmity between the accused and the deceased could be discerned by prosecution to impute motive behi nd the occurrence. Learned counsel for the appellants also pointed out that the time gap between the discovery of the dead body and the deceased being last see n alive in the company of the accused persons is so large that in all probabilit ies that the accused persons being the authors of the crime can be positively ru led out. From the evidence of Nigrabashi Das (PW.2), Ram Bhakta Das (PW.3 10. ), PW.4 (Arabinda Das), PW.6 (Md. Badaruddin), PW.8 (Parameswar Das), it appea rs that the various parts of the dead body, were found scattered in the graveyar d of Sainnashi Patta together with some garments. According to the evidence of the witnesses, it was PW.1, who had identified those parts of the dead body and garments to be of Ratan Das(deceased).

11. PW.12, Ananta Singh, Investigating Officer deposed that the in formant (PW1) had submitted written information before Kalibari police out post on 4.5.06 stating interalia that the dead body of Ratan Das had been found in th e graveyard of Sainnashi Patta. On receiving the said information, a GD entry w as made and a preliminary investigation was made by PW.12. PW.12 visited the gr aveyard with the Circle Inspector and found some garments and skull and bones sc attered in the graveyard. In his deposition, PW.12 added that parts of the dead body was identified by the informant, as the belongings of his son Ratan Das. The inquest of the dead body, was conducted by the Circle Officer on the collect ed bone and skull of the dead body.

12. From the deposition of PW.12, it appears that after the inquest, the parts of the dead body were sent to Karimganj Civil Hospital, for carrying out the post mortem examination on 6.5.06. Thereafter, the parts of the dead bo dy of the deceased were sent to Silchar Medical College Hospital, for carrying o ut forensic examination.

13. The Prof. and Head of the Department of Forensic Laboratory Scie nce, Silchar Medical College Hospital, PW.10, carried out the post mortem examin ation over the dead body and found the following: (cid:28)The case properties found under reference case are as follows: (1) One brass kharu (bangle) and one metallic still small chain found al ong the separated skeletal remains (2) One bag containing one black (torn at places and earth soils stained ) shirt, one torn black armless ganjee, one reddish under pant, one armless whil e ganjee with tear holes with reddish stains (suspected to be blood stains). (3) one place bag containing some medium length black scalp hairs. (4) Actual case property (i.e body parts) wrapped in a blue plastic clot h containing bundles of human bones with some climbing plants soaked in soil and earths. All bones are almost skeletonised, soft tissues missing (except few att ached to some bones or joints with advance stage of decomposition), ligamentous attachment present in some joints. A long piece of partly decomposed and partly saponified skin and subcutaneous tissues found along with bones separated from bony attachment, which show one nipple (of breast male type) on one side of the skin flap - happened to be of front side of chest wall). The skin flap shows- ( i) one spindle shaped stab injury with cleaned cut margin on lower and middle pa rt of the flap of skin, 2cm x 0.5 cm in size, (ii) same type of injury, 3 cm x 1 cm on left lateral upper part, (iii) same type of injury on left lateral part 2 cm below injury No.(ii). In all above blood clots are firmly adherent, which resist washing. (Antemortem characters) The bones found are as follows: All bones are human and one single individual - the hip bone, sacrum, mandible, skull, long bones- all showing male characters. Skull:- Few decomposed scalp tissues attached to forehead. Skull healthy suture s not united. Maxilla bone shows sockets of eruption 16 teeth 8 + 8 . Mandible found separately of all 16 teeth present 8+8. Most of the teeth are missing fr om the sockets. Third molar teeth present in both maxilla and mandible. Attriti on or second and third molars not present. Right and left lower limb bones with hip bones are found intact with few soft tissues at places and ligaments. Hip bone: Epiphysis for iliac crest and ischial tuberosity are united. Sacrum: Lower four segments united. Upper first segment not united. Right sca pula articulated right humourous. Left radius and ulna found articulated at wri st joint with few decomposed soft tissues. Vertebrae columns separated and pres ent in three segments (postmortem separation). Twelve pieces of ribs found res t are missing. The above bones belonged to one male individual and aged above 2 1 years and below 25 years of age. No bony injury is found. The wearing garmen ts and apparels were preserved and sent along with the body through accompanying constable. Opinion:- The cause of death could not be determined due to advance stage of put refaction (decomposition), missing of soft tissues including organs of the body and skeletonization with partly missing of bones. However, the injuries found o n front of chest wall as described were ante mortem and caused by sharp cutting and pointed weapon and suggestive homicidal in nature. Approximate time since de ath 2 to 3 weeks. (cid:29)

14. In his cross examination, PW.10, clearly stated that soft tissue s were absent and except few decomposed soft tissues all the bones were almost s keletonised. According to PW.10, there was no facial appearance of the deceased . Apparently, from the report of the Doctor, it appears that the dead body was not identifiable without any proper scientific examination. A human being, how so ever close relative he may be, would not be able to identify a man by seeing his skeletal remains. Apparently, no proper enquiry either scientific or otherw ise was carried out to discern as to whether the skeleton remains, which were fo und in the graveyard, were of the deceased (Ratan Das). When the prosecution, s eeks to prove the skeletal remains and cloths recovered in the graveyard of Sain ashi Patta to be of Ratan Das, it is incumbent on the prosecution to establish b eyond all reasonable doubt that the dead body of the deceased, which was found i n the graveyard, belonged to the Ratan Das only suspecting the skeletal remains found in the graveyard to be of Ratan Das, would not release the prosecution of its burden of proof..

15. The entire dead body was not available before the Doctor to carr y out the post mortem examination. Admittedly, no other scientific examination was carried out to pin pointedly identify the skeletal remains of the dead body happened to be of Ratan. The skeleton remains of the dead body were found in a graveyard. Therefore, the possibilities of discovery and seizure of skeletal rem ains of dead body of some other persons by the police, cannot be ruled out. B ecause, admittedly there was no real effort to go for any scientific test to det ermine the identity of the deceased. In a murder case, it is not necessary that the dead body of the victim should be found and identified i.e. conviction for t he offence of murder does not necessarily depend upon corpus delicti being found . The corpus delicti in a murder case has two components - death as result, and criminal agency of another as the means. Where there is a direct proof of one, t he other may be established by circumstantial evidence.(See Prithipal Singh v. S tate of Punjab,(2012) 1 SCC 10) Any presumption of the identity of skeletal remains of a dead body of a person found in a graveyard, would not be substantial evidence in a trial o f a murder case, unless the dead body is identified by direct or circumstantial evidence. Very unfortunately, neither PW.1, who is the father of the deceased n or P.W.3, who is the brother of Ratan Das, did come forward to identify any of the belongings of the deceased found in the graveyard, while adducing their evi dence in the Court.

16. PW.5, Md. Basarat Ali, who is a carpenter by profession, knew th e deceased Ratan Das and also the accused persons. PW.5, deposed that at about 1 years and 3 months back, he had gone to the shop of Sajal Das, where he met ac cused Subodh Das and after some time deceased Ratan Das came there along with ac cused Subodh and they went to the shop of deceased Ratan Das . On being called by them, the accused Sajal also accompanied them. From the next day mornin g, the shop of Ratan Das was found closed. After 10/12 days later various parts of the dead body of the deceased was found in the graveyard of Sainnashi Patta.

17. In his cross-examination, however, PW.5 clarified that he was in the grocery shop of Sajal Das till 8-30 pm and he did not know what had happen ed thereafter. PW.5 also stated that his statement was recorded by the police a fter 10/12 days later and on about 10/12 days thereafter, his statement was agai n recorded u/s 164 CrPC in the Court. PW.5 also denied the suggestion that in h is statement before the Magistrate and I/O, he did not say that he had seen the jewelry shop of the deceased had remained closed form the next day morning. Howe ver, the statement of this witness recorded under section 164 (Exht.6), do n ot reflect that P.W.5 had ever stated in his statement u/s 164 Cr.P.C that he ha d seen the jewellery shop of the deceased closed from the next morning.

18. Very surprisingly, P.W.5, who was next door neighbor of the dece ased, was waiting for 10 days to state the fact of seeing the accused in the com pany of the deceased. There is no explanation, whatsoever, as to why there was a n in ordinate delay to give information immediately after PW-5 came to know that Ratan was missing from his house. On the top of it, PW.5 could not specify th e particular day, on which he had seen the deceased in the company of the accuse d.

19. When inordinate delay occurred in recording the statement of the witnesses by the I/O u/s 161 CrPC, without reasonable execuse, the evidence of such witnesses is unreliable. In this connection this Court in Sajad Ali -vs- St ate of Assam, reported in 1995(3) GLT 470, a Division Bench of this Court held t hat while witnesses, who were very much available in the vicinity were not exami ned by the investigating officer u/s 161 of the Cr.P.C at an early date, their s tatements so recorded at a belated stage, weaken the prosecution case. Since, no justifiable reason is so advanced rather not a single word is spoken by way o f explanation, for this undue delay in recording their statement u/s 161 of the Cr PC, it rather leaves much scope as to infer with the strong conviction with r egard to those allegedly material eyewitnesses telling falsehood, on material fa cts, after a lapse of more than a fortnight at the instance of some of the inter ested persons, as a result of which, as claimed, the accused appellants may be f alsely implicated. Relying upon the reported case in AIR 1971 SC 804 Balakrishn a Swain-Vs-State of Orissa, it was submitted that unjustified and unexplained lo nger delay on the part of the investigating officer, in recording the statement of the material witnesses, during the investigation of a murder case, particular ly without giving any explanation for such delay, renders the evidence of such w itnesses unreliable. A brand of falsehood coming from the mouth of the prosecu tion witnesses and the evidence as it is cannot be ruled out. Thus, the evidence of such witnesses cannot be said to be fundamentally reliable.

20. PW.6, Md. Badaruddin stated that at about 6-30 PM in the evening about 1 year 3 ‰ months before, he was enjoying TV programme at the residence o f Niranjan Das. Together with him accused Sajal Das and Niranjan Das also were e njoying TV programme. At about 7-30 PM Nazim , Ratan Das and Jyotish also came there. Thereafter, all of them left from the house of Niranjan. PW.6 left for home leaving deceased Ratan Das, Jyotish and Sajal near the shop of accused Saja l. On the next morning, when PW.6 returned from cultivation field, he found bro ther of the deceased asked Sajal regarding whereabouts of Ratan, to which Sajal had replied that he did not know. PW.6, was present at that time. PW.6 found t he shop of the Ratan was closed. But, P.W.6 , who is another next door neighbour , did not inform the bother of the deceased at that time that Ratan was in the company of the accused on the previous night. This witness also has not explain ed as to why he did not inform this vial fact immediately, to any of his close a ssociates and/or to police. Apparently, PW.6 did not specify the precise day on which he had seen the accused in the company of the deceased. On the top of it , Jyotish, who was together, was never examined as witness. More so, PW-4, Arabi nda Das, did not support the evidence of PW-6 regarding meeting him in the morni ng hour as stated by PW-6. PW-4 stated to have met PW-5 only

21. PW.2 deposed that on the next day of arrest of accused Subodh Das and accused Sajal Das, both of them were brought by police to Sainnashi Patt a, and in presence of many people including PW.2, both the accused stated to hav e confessed their guilt. PW.2 also deposed that both the accused had confessed f urther that all of them took the dead body to the graveyard and threw it into th e jungle of the graveyard of Sainnashi Patta. The said PW.2 also deposed that p olice showed a Hammer to him and told that victim Ratan Das was killed with that Hammer. Ext.1 is the seizure list of Hammer. PW.3 also deposed similar facts as stated by PW.2 regarding extr 22. a judicial confession made by the accused Subodh Das and Sajal Das in their pres ence, while they were brought under arrest by the police. PW.3 also deposed tha t the Hammer was seized by police. Now, it is required to be examined how far the extra judicial co 23. nfession of the accused persons would be admissible in evidence in the facts and circumstances of the present case. Apparently, extra judicial confession which was made by the accu 24. sed while in police custody, in terms of the decisions of the Supreme Court, is not admissible in law. No reliance can be put on the extra judicial confession made by the accused while in police custody.

25. In State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272 , th e Apex Court observed that confession made to a police officer is inadmissible u nder Section 25 of the Evidence Act and that ban is further stretched through Se ction 26 of the Evidence Act, to the confession made to any other person also, i f the confessor was then in police custody . It reads as follows: (cid:28)It is true any confession made to a police officer is inadmissible under Sectio n 25 of the Act and that ban is further stretched through Section 26 to the conf ession made to any other person also if the confessor was then in police custody . Such ’custody’ need not necessarily be post-arrest custody. The word ’custody’ used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are rest ricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act. (cid:29) In view of the decision of the Supreme Court in the case of Stat 26. e of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272, the confession made by the accused persons in presence of the Investigating Officer, is not legally admissi ble evidence.

27. However, accused Subodh Das and Sajal Das denied to have confess ed and led the police to discover the Hammer. Therefore, now burden is on the prosecution to prove the fact of discovery of the Hammer on being led by the acc used. However, fact remains that no disclosure statement was recorded by the In vestigating Officer(PW.12). According to the witnesses the investigating officer only displayed a ’Hammer’ and told the witnesses that it was used as weapon of assault by the accused person. The witnesses did not corroborate the discovery of ’Hammer’, by the accused.

28. The prosecution side adduced the testimony of PW.2, PW.3 and PW.8 to prove disclosure statement of the accused, but the above witness did not state anything in their depositions to prove any disclosure statement made by t he accused Subodh Das and/or Sajal Das. There is no evidence to conclude that th e accused persons had stated that hammer, which they used for killing of Ratan D as was available in the shop of Ratan Das or any specific area. However, none o f the witnesses deposed the fact of recovery of hammer was made from the shop of Ratan Das. The I/O also did not depose that in presence of witness he had reco vered seized Hammer from the shop of Ratan Das, as per information received from the accused. Hence the recovery of seized Hammer is of no value because the D ivision Bench of Gauhati High Court in Bakul Bora vs. State of Assam reported in (2004) 3 GLT 396, held that - (cid:28) &.recovery of seized materials is of no value, inasmuch as, it is the duty of the prosecution to show as to who was the accused, whose statement had actually led to the discovery of the facts and /or who was the accused, who had actually, first pointed out the article, which were, eventually, seized. (cid:29)

29. Reference can be made to a recent decision of a Full Bench of this Court reported in 2009 (2) GLT 414, RAJIV PHUKAN and ANR. VS. STATE OF A SSAM, wherein it was conclude that a ’disclosure statement’, to be admissible under Section 27 of the Evidence Act, is not statutorily required to be reduced into writing, though prudence demands that such an information should be reduced into writing in order to enable the Court to know exactly as to what the accuse d allegedly stated and the extent to which the information given by him, is admi ssible. The relevant extract of the decision reads as follows: (cid:28)In Bodhraj Vs. State of J and K, reported in (2002) 8 SCC 45, the Court, deali ng with this subject, observed thus, \the statement which is admissible under Se ction 27 is the one, which the information leading to the discovery. Thus, what is admissible being the information, the same has to proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to the recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic i dea embedded in Section 27 of the Evidence Act is the doctrine of confirmation b y subsequent events. The doctrine is founded on the principle that if any fact i s discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in na ture but if it results in discovery of a fact, it becomes reliable information. ( 55 ) From the emphasized portion of the observations made above, in Bodhraj (s upra), it becomes clear that though the information (which the prosecution relie s upon to show that the accused gave the information, which led to the discovery of a fact), should be recorded and proved but if it is not so recorded the exac t information must be adduced through evidence. Obviously, such evidence would m ean oral evidence or some other evidence in the form of audio visuals or tape. N onetheless, what clearly transpires from the decision, in Bodhraj (supra), is th at even when a statement, leading to discovery of fact, has not been reduced int o writing, such a statement is still admissible in evidence, though the probativ e value thereof would depend on the facts and circumstances of a given case. ( 56 ) Because of what have been discussed and pointed out above, we conclude th at a ’disclosure statement’, to be admissible under Section 27 of the Evidence A ct, is not statutorily required to be reduced into writing, though prudence dema nds that such an information should be reduced into writing in order to enable t he Court to know exactly as to what the accused is allegedly to have stated and the extent to which the information given by him is admissible. The reference sh all stand answered accordingly. (cid:29)

30. In the present case no effort whatsoever, was made by the Invest igating Officer to reduce the disclosure statement of the accused in writing and /or to prove the fact of discovery of the Hammer, in the manner indicated in RA JIV PHUKAN and ANR. -VS- STATE OF ASSAM (supra) to enable the Court to know as t o what exactly the accused allegedly stated and the extent to which such stateme nt is admissible. Therefore, in the circumstances, we are constrained to hold t hat the prosecution failed to prove the fact of discovery of the weapon of assau lt, at the instance of the accused.

31. However, the prosecution also tried to establish the case agains t the accused on circumstantial evidence. The circumstances of the last seen t ogether is a very relevant circumstances and in the case of State of Maharashtra Vs. Suresh, 2000 (1) SCC 471, the Supreme Court measured the following circumst ances to be sufficient for maintaining the order of conviction: (1) deceased was last seen in the company of the accused; (2) accused making contradictory state ments as to the whereabouts of the deceased; (3) recovery of the dead body. However, in the present case the evidence of the witnesses on last seen together is not at all convincing and reliable , since the witnesses cam e forward to reveal the fact of having last seen the deceased , after long gap o f 10 days , that too, without any explanation, whatsoever, regarding such belat ed revelation. On the top of it the dead body presumed to be of Ratan was recove red after about two weeks from the date he was missing. Upon evaluation of the m aterials on record, we are of the view that except bundle of suspicion the prose cution could not ascertain with certainty that the skeletal remains belonged to Ratan Das and none else.

32. In the case of Bodh Raj alias Bodha and Ors. Vs. State of Jammu a nd Kashmir, AIR 2002 SC 3164, the Supreme Court observed that the last seen theo ry comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so sma ll that possibility of any person other than the accused being the author of cri me becomes impossible. It would be difficult in some cases to positively establi sh that the deceased was last seen with the accused, when there is a long gap an d possibility of other persons coming in between exists. In the absence of any o ther positive evidence to conclude that accused and deceased were last seen toge ther, it would be hazardous to come to a conclusion of guilt, in those cases.

33. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172, at page 181 the Apex Court held as follows: 26. It is now well settled that with a view to base a conviction on circumstanti al evidence, the prosecution must establish all the pieces of incriminating circ umstances by reliable and clinching evidence and the circumstances so proved mus t form such a chain of events as would permit no conclusion other than one of gu ilt of the accused. The circumstances cannot be on any other hypothesis. It is a lso well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused g uilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603

27. The last-seen theory, furthermore, comes into play where the time gap betwee n the point of time when the accused and the deceased were last seen alive and t he deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a cas e the courts should look for some corroboration. 28. In State of U.P. v. Satish (2005) 3 SCC 114 this Court observed: (SCC p. 123 , para 22) (cid:28)22. The last-seen theory comes into play where the time-gap between the point o f time when the accused and the deceased were last seen alive and when the decea sed is found dead is so small that possibility of any person other than the accu sed being the author of the crime becomes impossible. It would be difficult in s ome cases to positively establish that the deceased was last seen with the accus ed when there is a long gap and possibility of other persons coming in between e xists. In the absence of any other positive evidence to conclude that the accuse d and the deceased were last seen together, it would be hazardous to come to a c onclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in add ition to the evidence of PW 2. (cid:29) (See also Bodhraj v. State of J&K .(supra)

34. In the present case, the no dead body was found, only some part s of a dead body was found after 14 days in a graveyard. On the top of it ,there is no definite report or evidence on record to show that the skeletal remains seized by the police from the grave yard of Sannashi Patta was of Ratan. Yet the time gap of finding the dead body of the person after he went missing is very l ong and as such the circumstances of last seen together sought to be established by the prosecution can not be held to have been proved against the accused pers ons in terms of the decision of the Apex Court in Ramreddy Rajesh Khanna Reddy v . State of A.P(supra)

35. On perusal of the evidence of Doctor, PW.10 , who carried out t he autopsy of the skeletal remains of the dead body, it appears that parts of th e body was decomposed and as such identity of the person was lost due to decompo sition. The investigating agency did not send the viscera of the dead body, for forensic examination in the State Forensic Laboratory. There is no evidence on record of any such process being adopted by the Investigating Officer, to deter mine with firmness about the identity of the skeletal remains. When the medical report of the Doctor clearly specifies that the identity of the person was lost due to decomposition, instead of relying on the statement of the witnesses, pro per scientific examination ought to have been carried out by the prosecution, si nce the dead body after a long period had already lost the identity due to decom position. None of the witnesses identified the deceased with any identification mark available on the body of the deceased or from his wearing apparels.

36. On the top of it, the ’hammer’ and some liquid in the bottle sa id to contain corrosive acid was seized from the room of the deceased, which was allegedly used for killing of the deceased. But we hasten to say that neither t he hammer nor the so called acid was sent for serological or chemical test to re move the suspicion. Therefore, we are constrained to hold that the prosecution f ailed to prove the hammer as weapon of assault used by the accused persons. With out scientific test of the liquid by an expert , it would not be proper and leg al to hold it to be corrosive acid. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Prades

37. h, (AIR 1952 SC 343), wherein it was observed thus: \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 be in the first instance be fully established and all the facts so establishe d should be consistent only with the hypothesis of the guilt of the accused. Aga in, the circumstances should be of a conclusive nature and tendency and they sho uld 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 accu sed and it must be such s to show that within all human probability the act must have been done by the accused.\

38. A reference may be made to later decision in Sharad Birdhichan d Sarda v. State of Maharashtra, (AIR 1984 SC 1622). While dealing with circum stantial evidence, it has been held by the Apex Court that onus is on the prose cution to prove that the chain is complete and the infirmity of lacuna in prosec ution cannot be cured by false defence plea. The conditions precedent in the w ords of the Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (cid:28)(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘ma y be’ established; (ii) the facts so established should be consistent only with the hypothesis of t he guilt of the accused, that is to say, they should not be explainable on any o ther hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; they shou ld exclude every possible hypothesis except the one to be proved; and (iv) there must be a chain of evidence so complete as not to leave any reasonabl e ground for the conclusion consistent with the innocence of the accused and mus t show that in all human probability the act must have been done by the accused. (cid:29)

39. From the evidence on record, we find that the prosecution misera bly failed to establish the fact of having last seen the deceased in the company of the accused persons. Further, the evidence of the witnesses leading to disco very of the hammer by the accused persons could not be proved by the prosecution by adducing cogent and reliable evidence. A futile attempt was made by the pros ecution to prove the extra judicial confession of the accused made before the In vestigating Officer. Additionally, we are not convinced that the skeletal rema ins found in the graveyard of Sainnashi Patta were of Ratan Das. The facts estab lished by the prosecution are not consistent with the hypothesis of the guilt of the accused. The above circumstances create a doubt as regards the authorship o f the crime by the accused appellants.

40. On an evaluation of the evidence of the prosecution witnesses and the revelation gathered therefrom, we are of the view that the theory of last se en together advanced on behalf of the prosecution could not be established since the time gap between the point of time, when the accused and the deceased were seen last alive and when the deceased was found dead is very large. More so, th e skeletal remains of the dead body could not be identified by the prosecution. In the facts and circumstances of the case, the prosecution has failed to prove the charges against the appellants beyond all reasonable doubt. Neither the pro positions of discovery of the dead body at the instance of the accused could be established nor is the circumstantial evidence considered to be sufficient enoug h to safely convict the accused/appellants on the charges.

41. In the circumstances, the accused appellants are entitled to the bene fit of doubt. Though the incident involved in the present case is very grave in nature, but for the reasons and discussions made hereinabove and having regard t o the settled proposition of law, we have no other alternative except to provide the benefit of doubt to the accused appellants. Accordingly, we do so. Consequ ently, the impugned judgment dated 2. 12. 2002 passed by the Additional Sessions Judge, (FTC), Karimganj, in Sessions Case No. 39/07, is set aside.

42. In the result, the appeal stands allowed. The accused appellants are set at liberty forthwith, if they are not required in connection with any o ther case.

43. Send down the lower Court records immediately.