Gauhati High Court
Page No.# 1/22 vs The State Of Assam on 28 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/22
GAHC010001382022
2025:GAU-AS:6932-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/20/2022
MONI KAKATI @ BHUPEN CH. KAKATI
MORIGAON, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. A AHMED, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
BEFORE Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MRS. JUSTICE Marli Vankung Advocate for the Appellant : Shri A. Ahmed, Amicus Curiae Advocate for the Respondent : Ms. S. Jahan, APP, Assam Date of hearing : 17.03.2025 Date of Judgment : 28.05.2025 Page No.# 2/22 Judgment & Order (S.K. Medhi, J.) The present appeal has been preferred from jail against the judgment and order dated 21.09.2021 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 103/2017 (GR Case No. 3164/2016) under Sections 302/201 of the Indian Penal Code [corresponding to Sections 103/238 BNS], thereby sentencing the appellant under Section 302 of the Indian Penal Code [corresponding to Section 103 BNS], to undergo RI for life and fine of Rs. 5,000/- (Rupees Five Thousand) in default, further imprisonment for three months and also to undergo RI for three years with a fine of Rs. 5,000/- (Rupees Five thousand) only in default further imprisonment for three months under Section 201 Indian Penal Code [corresponding to Section 238 BNS]. The same involves the death of the minor son of the informant.
2. The criminal law was set into motion by lodging of an Ejahar by the mother of the deceased as PW2 on 06.12.2016. It has been alleged in the said Ejahar that on the previous day i.e., 05.12.2016, at about 03:00 PM, the appellant had called the 8 year old son of the informant, namely Siba Mahanta, to his shop and thereafter strangled him inside the shop and to conceal the body, he had put it in a cardboard box and threw it in the Batahbari field and tried to destroy all the evidence by burning the dead body along with the cardboard box. The said Ejahar was accordingly registered as MRG P.S. Case No. 409/16, under Sections 302/201 Indian Penal Code [corresponding to Sections 103/238 BNS] and the investigation had begun. The Investigating Officer had visited both the places of occurrence, recorded statements, prepared sketch maps, made seizure, Page No.# 3/22 sent the remains of the body for post-mortem examination and after completion of all the formalities, had laid the Charge Sheet.
3. Based on the above, two charges were leveled against the appellant, namely under Sections 302 and 201 of the IPC [corresponding to Section 103 and Section 238 BNS] and on denial, the trial had begun in which the prosecution had adduced evidence through 11 nos. of PWs. Thereafter, two Court Witnesses (CW) were also examined.
4. The ADC, Nagaon, who had done the inquest was examined as PW1. He had deposed that on 06.12.2016, while he was posted as Circle Officer cum Executive Magistrate at Morigaon, had conducted the inquest in the Morigaon Civil Hospital. He had seen a burned skeleton of the deceased who was identified by the mother on the basis of the clothes of the deceased. The Inquest Report was proved as Exhibit 1. In his cross- examination, however, he had stated that he did not see the clothes of the deceased.
5. The informant, who is the mother of the deceased, was examined as PW2. She had stated that the appellant had a shop near her house and runs business of Xerox, Computer Photo Printing and other activities. During the time of the incident, the deceased son was about 6 years old. It has been stated that in the year 2015, the husband of PW1 had passed away and after his death, the appellant started to induce her by various means. The informant also stated of having three children and of thwarting the persuasion of the appellant. She had also alleged that the appellant had bad intention and that he had threatened to kill her. The appellant also used to show affection to her minor sons and the deceased was the youngest one. She had also narrated an incident that about 10 days before Page No.# 4/22 the incident, the appellant had come to their house at night and called her from outside by knocking the window, which was declined. The appellant was also scolded by her elder two sons and he was told to go away.
6. She deposed that on the date of the occurrence, the informant had gone to the paddy field for cutting paddy and at about 04:00 PM after coming back to house, she found that the deceased was missing and accordingly a search was made. The other two sons and the persons of the locality were also involved in the search. She had also gone to the Morigaon Sadar Police Station to inform about the incident and prior to going, she had instructed her eldest son to go to the shop of the appellant with her mobile phone to print a photograph of the deceased which was in the memory card of the phone. However, after examining the mobile phone, the appellant had told her eldest son that there was no photograph of the deceased in the phone memory. The informant had deposed that she believed that the appellant had deleted the photographs of the deceased from the memory card of the phone. Accordingly, the eldest son had informed her regarding non-availability of photographs of the deceased in the mobile phone. She had also deposed that prior to her visit to the Police Station, her sister-in-law, Pranita Mahanta had told her that she saw the deceased playing with the appellant for the whole day and the appellant was trying to influence him by giving eatables one after the other. When the informant had gone to the shop of the appellant, the appellant was not present. However, his shop was open. She then enquired with one Mukunda Mahanta, CW1, who had a shop near the shop of the appellant and on such asking, the CW1 had told her that he saw the appellant carrying a big cartoon in his motorcycle and was going somewhere and he had returned Page No.# 5/22 at about 7:00 PM. The informant had again gone to the shop of the appellant and made enquiries, wherein the appellant denied that the deceased was with him during the day.
7. She had further deposed that on the next day, the Police had informed that a dead body was recovered and she was asked to come for identification. Accordingly, she had gone to the place of discovery and found the body which was completely burnt and the identification could be made by the clothes of her son which were recovered by the Police. She had also deposed that the appellant was arrested and on interrogation, the appellant had confessed his guilt. The FIR was proved as Exhibit 1 and the Inquest Report was proved as Exhibit 2 which contains her signatures. In the cross-examination, the aspect of narration by CW1 was contradicted. She had also admitted that the shop of the appellant was situated in Chariali and there were about 40-50 shops at that point. She had also admitted that there were two schools near her house and the incident took place on Monday when the school children used to come to the schools with their guardians. She had negated the suggestion that she had not stated before the Police regarding the narration by Mukunda Mahanta, that he has seen the accused carrying a big carton in his motorcycle and going somewhere.
8. PW3 is a person from the same locality. He had deposed that the deceased frequently used to go to the shop of the appellant which he had seen on many occasions. He had also deposed that after the information was given to the Police, the Police had come and interrogated the accused in which he had admitted his guilt by stating that he had strangulated the deceased and thereafter, put the body in a carton and took the same in his Page No.# 6/22 motorcycle. He also stated that such confession was also heard by other persons. The aspect of making confession was, however, tried to be contradicted in the cross-examination, which PW3 had denied.
9. PW4 is a person from the locality who had videographed the confession. He had stated that he was brought by the Police to the shop of the appellant for recording the video of the confession and the appellant had confessed before the Police that he had killed a minor boy of the locality. PW4 had also stated regarding transforming and downloading the recording into a compact disc which was seized by the Police. The seizure list was proved as Exhibit 3 and the CD as Material Exhibit A. He had also proved another seizure list as Exhibit 4 which contained his signature. In his cross-examination, PW4 had, however, deposed that when he had recorded the version of the appellant there were handcuffs in his hands. He had however denied the suggestion that material Exhibit A is not the authentic CD of the videography of the confession.
10. PW5 is a person from the locality who had deposed that on being informed by someone from the village by telephone he had gone to the place of occurrence where he had made a phone call to the police station whereafter the Police had come. He had stated that some bones of a half- burned dead body was lying around which were seized by the Police. In his cross-examination, he had however deposed that the body was not in a recognizable state and from the bones it could be made out that it was of a human being. He had also stated that the body was in pieces.
11. PW6 is a person from the said locality who was a witness to the seizure of the body parts and burnt clothes which was in Exhibit 5, containing his signature. In his cross-examination, he had stated that he Page No.# 7/22 had reached the place of occurrence after the arrival of the Police and that the seized items were not shown to him. He had also confirmed that he had not stated before the police that one small boy was killed and kept in a half burnt conditioned. He had also clarified that he did not see the dead body as such and had not seen any spread out body parts of the dead body.
12. PW7 is a co-villager, who had also deposed that the accused confessed in front of the people. In his cross-examination he had clearly stated that his deposition was on the basis of what he heard from other persons. Since the version appears to be hearsay, the deposition of PW7 may not be very relevant.
13. PW8 is the Police Official, who was informed by the Officer-In- Charge of the concerned Police station about the detection of one skeleton on the field. He along with the OC and one Magistrate had gone there and saw the skeleton. He had stated that it had some flesh though the body was not there. He had also stated of finding a burnt cartoon by the side and the skeleton was brought to the Morigaon Civil Hospital. He had deposed in the cross-examination that he could not recognize the body and further that the skeleton did not have flesh on the face but the skull was present.
14. PW9 is another person of the locality whose version however appears to be hearsay as he had simply heard about a hue and cry in the village that the appellant had killed one child.
15. PW10 is the Investigating Officer who had done the investigation. He had deposed that on receiving the information from PW2, a GD entry was recorded which was proved. Thereafter, he had gone out to make the Page No.# 8/22 enquiry and did not find anything and returned to the Police Station and on the next day, the VDP Secretary informed the Officer-In-Charge by telephone that one skeleton of a child was lying on the paddy field in village Botahbari and accordingly another GD Entry 159 dated 06.12.2016 was recorded at 10:30 a.m. which was proved. Thereafter, he along with the O/C and Staff had gone to the said village and found a skeleton of a child and there were bloodstains on the skeleton. They had also found a burnt paper cartoon near the scene and some flesh from the skeleton were found to be lying scattered in the vicinity. The half burnt clothes were also found near the skeleton and accordingly seizure was made including one piece of burnt vest with writing RUGB sports and further pieces of wearing apparels were also seized in a Seizure List as Exhibit 5 and the materials were Material Exhibit B. The persons who had assembled in the locality were examined and inquest was done by the Magistrate. The wearing apparels of the deceased which were seized were shown to the informant who had identified those to belong to her minor son and upon making enquiry, the involvement of the appellant was suspected. The skeleton was sent to the hospital for post-mortem which was accordingly done. The accused appellant was accordingly questioned and a Police videographer was called who had recorded the confession and the seized CD was also proved as Material Exhibit A vide the seizure list as Exhibit 4. He had also deposed of transmitting one piece of bone to the Central Forensic Laboratory at Kolkata but till the filing of the Charge Sheet, the report was not received. He had also deposed about making other seizures.
16. The PW10 was subjected to cross-examination and he had clarified that the accused appellant had come to the Police Station wherein he was Page No.# 9/22 arrested. He had also stated that he did not state any reasons as to why the appellant was not sent for recording his confession in accordance with law and further that there were no eyewitnesses to the incident.
17. PW11 is the Doctor, who had conducted the post-mortem of the deceased. In his opinion, however, he had stated that the same could not be given and was kept pending till the receipt of the toxicology analysis report from the Forensic Department and the actual age of the deceased was found to be between 7 to 9 years. The examination was done on 08.12.2016 and he had deposed that the approximate time of death was between 48 to 72 hours.
18. As recorded from the evidence, the involvement of two relevant persons namely, Mukunda Mahanta who had a shop nearby and Pranita Mahanta had come up, were examined as Court Witnesses 1 and 2.
19. Shri Mukunda Mahanta was examined as CW1 who had deposed that the appellant was known to him as he had also a shop nearby the shop of the appellant. He had stated that he had heard a hue and cry at the residence of the informant and accordingly had gone there and found that the deceased was missing and on the next morning, he had come to know from the locals that the deceased was burnt by the appellant. In the cross- examination by the prosecution, he had however clarified that he knew that the deceased used to frequently visit the shop of the appellant. He had also denied the suggestion that on 05.12.2016, he had seen the deceased in the shop of the appellant and further that it was not a fact that he had seen the appellant taking something in a big carton on the said date. In the cross-examination by the defence, he had clarified that he did not have any personal knowledge on the death of the deceased. He had also clarified Page No.# 10/22 that he had never seen the deceased coming to the shop of the appellant.
20. CW2 is one Smt. Pranita Mahanta, who is a relative of the informant. She had stated that on 05.12.2016 at about 12 PM, she had seen the deceased in the shop of the appellant with a packet of chips and he had come to her house. On her asking, he had stated that the appellant had given him the packet. In the evening, she had seen the informant in search of the deceased and had also joined the said search and on the next morning, she had come to learn that the Police had found a dead body on the field. She had also stated of having come to learn that the deceased was burned by somebody and the informant had told her that it is the appellant who had caused the death of her son. In the cross-examination by the prosecution, CW2 had clarified that on 05.12.2016, the informant was working in the field and that she had frequently seen the deceased in the shop of the appellant and the appellant used to shower love and affection on him. She had also stated that about two days prior to the incident, the appellant had gone to the house of the informant at night and had called her through the window and this fact was made known to her by the informant. She had also deposed that on 05.12.2016, she had seen the deceased of coming and going to the shop of the appellant.
21. After recording of the evidence of the PWs and the two CWs, the incriminating materials in the form of questionnaires were placed before the appellant for his response under Section 313 of the Code of Criminal Procedure, 1908 [corresponding to Section 351 BNSS]. Amongst the said questions, while the prosecution side has laid emphasis on question nos. 41, 60 and 62, the defence has submitted that there was no question put on the aspect of the CWs.
Page No.# 11/22
22. Based on the materials on record and after hearing the parties, the impugned judgment has been passed, which is the subject matter of challenge in the present appeal.
23. We have heard Shri A. Ahmed, learned Amicus Curiae appearing for the appellant. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam appearing for the State.
24. Shri Ahmed, the learned Amicus Curiae for the appellant has submitted that admittedly the present case is not a case of any direct evidence and the same is based upon circumstantial evidence. He has submitted that the chain of circumstances are not complete so as to come to the only conclusion of guilt of the appellant in connection with the death of the son of the informant and that no other hypothesis is possible. He has submitted that the learned Trial Court in paragraph 41 of the judgment has culled out the circumstances which appear from the evidence on record. He has submitted that an important circumstance was regarding deleting of photographs from the mobile phone of the informant as per the deposition of the informant as PW2. He has submitted that the same is not a proved circumstance. He has also submitted that admittedly, there was no FSL report and no DNA matching in spite of such reports being sought for by the Investigation Officer which is also reflected in the Charge Sheet. However, there is no report at all from the FSL or any DNA matching so as to connect the remains of the body which were recovered to the missing son of the informant. He has also submitted that what is more important is the cause of death that has not been ascertained as the Doctor who had conducted the post-mortem in his deposition as PW11 did not give any opinion regarding the cause of death.
Page No.# 12/22
25. He has submitted that amongst the witnesses, PW2 is the informant who had also deposed regarding confession made by the appellant. Similar deposition has also been made by PW3, PW4, PW7 and PW10. While PW10 is the IO and a Police officer, the confession said to be made by the appellant as per the depositions of the aforesaid witnesses were before the Police. He accordingly submits that such confession is hit by Section 25 of the Indian Evidence Act [corresponding to Section 23 of the BSA] and is not admissible as evidence.
26. On the aspect of the importance of Section 313 of the CrPC [corresponding to section 351 of the BNSS], the learned Amicus has submitted that no question was put to the appellant regarding any defence evidence and therefore there is gross violation of the aforesaid provision of law. He has submitted that the purpose of the said provision of law is to give a reasonable opportunity to the accused to explain his position in which, the aspect of giving him a scope to produce defense evidence is inbuilt. He has submitted that the conviction and sentence is only based on suspicion and suspicion cannot take the place of legal proof.
27. In support of his submission, the learned counsel for the appellant has relied upon a judgment of Ramanand @ Nandlal Bharti Vs. State of UP reported in AIR Online 2022 SC 655 and the observations made by the Hon'ble Supreme Court on the aspect of circumstantial evidence is extracted hereinbelow-
"45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of Page No.# 13/22 circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved;
&
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."
28. The learned Amicus Curiae accordingly submits that the impugned judgment is unsustainable in law and is liable to be interfered with and the appellant be released forthwith.
29. Per contra, Ms. Jahan, learned Additional Public Prosecutor has defended the impugned judgment and has opposed the present appeal.
Page No.# 14/22 She has submitted that though the present case is based on circumstantial evidence, it is no longer res integra that a conviction and sentence can be on the sole basis of circumstantial evidence and the only requirement is to prove a complete chain of circumstance which leads to only one conclusion i.e. the guilt of the accused and none else. She has submitted that in the present case, the circumstances are complete in all factors leading to the only conclusion of guilt of the appellant.
30. By elaborating the circumstances which according to her would form a chain, the learned APP has submitted that firstly the motive behind the offence committed is established from the facts that the appellant had ill motive towards the mother of the deceased and he had tried to induce her as her husband had passed away a couple of years ago and she was staying with her three minor sons. Secondly, she has submitted that it is on record that the deceased used to go to the shop of the appellant frequently. She has further highlighted that so far as CW2 Pranita Mahanta is concerned, she has deposed that on the said afternoon at 12:00 noon, the victim was seen going to the shop of the appellant and that the victim had said to her that the chips which he was carrying was given to him by the appellant. She has also submitted that when the informant had gone to the shop of the appellant on detecting that her son was missing, the appellant was not found in the shop while the shop was open and he had come back to the shop only by 7:00 PM. The learned APP has also highlighted the aspect that the informant as PW2 had deposed that Mukunda Mahanta (CW1) had seen the appellant carrying a large carton from his shop in the afternoon and this aspect was not contradicted. She has also submitted that PW2, the informant in her deposition had stated that as per the CW2, Page No.# 15/22 the victim was playing with the appellant the whole day. The aspect that the photographs of the victim had gone missing from the mobile phone which was given to the appellant for printing a photograph has also been highlighted. She has also highlighted that it is on record that the appellant had threatened the informant and other witnesses.
31. As regards the confession, the learned APP has submitted that though it appears from the evidence that the confession has been made in presence of police, however, in Q. Nos. 41, 60 and 62 of the examination under Section 313 of the Code of Criminal Procedure, 1908 [corresponding to section 351 of BNSS], the appellant had admitted of making such confession. She accordingly submits that the said circumstance would lead to the veracity and truthfulness of the confession though made in presence of police. She has accordingly submitted that the circumstances are complete and therefore the conviction and sentence are in accordance with law which does not require any further interference.
32. The rival submissions have been duly considered and the materials, including the TCRs placed before this Court have been carefully examined.
33. Admittedly, in the present case, there is no direct evidence in the form of eyewitnesses and the same hinge upon circumstantial evidence. It therefore becomes incumbent upon this Court to scrutinize whether the circumstances which have been established would form a complete chain so as to lead to only one conclusion of guilt of the appellant and none else.
34. The present case involves the tragic death of the minor son of the informant whose body was also recovered in parts and in a burnt condition. In fact, the evidence would also suggest that parts of the flesh of the body Page No.# 16/22 were also found lying from where the half burnt skeleton was recovered.
35. The informant PW2 had deposed that after coming back from the paddy field at about 4:00 PM on 05.12.2016 when she did not find her youngest son, she had searched for him in which the persons of the locality were also involved. By the evening, the matter was also reported to the Police in which a GD Entry 142 was recorded. The time noted in the GD Entry, exhibited as Exhibit 5, is 08:45 PM. She had also deposed that CW2 had told her that the deceased was found playing with the appellant and on missing of her son, she had sent her eldest son to the shop of the appellant to take a print of his photographs from her mobile phone. She also suspects that since the appellant was involved, he had deleted the photographs from the mobile which was told to her by her eldest son. She along with PW3, PW4 and PW7 had also deposed regarding making of confession by the appellant.
36. As regards the aspect of confession is concerned, it is clear that such confession has been made in presence of the Police and therefore the same is hit by Section 25 of the Indian Evidence Act [corresponding to section 23 of BSA] and would not be relevant. PW2 had also made a significant statement that she was told by CW1 (Mukunda) that the appellant had carried a big carton on his motorcycle which he had seen as his shop was adjacent to the shop of the appellant. The learned APP has highlighted that this aspect was not contradicted. Though the learned APP may be correct in contending the same, this Court has looked into the evidence of CW1 Mukunda Mahanta who, however in his chief examination had stated that he had said nothing about the carrying of cartoon by the appellant. In fact, to a specific query he has denied of witnessing any such event of carrying a Page No.# 17/22 big carton by the appellant. The aforesaid aspect of carrying the body of the deceased in a cartoon to the place where it was dumped and tried to be burnt the cartoon itself is of immense significance as the same is an important link to the circumstances in the case. It is also improbable that the body of 6 year old child can be carried by a person on his own inside a paper cartoon by a motorcycle. Admittedly, there is proof or even any allegation of cutting the body into pieces in the shop itself to facilitate such carrying by a carton. There is no allegation of finding any blood stains in the shop and recovery of any such weapon.
37. The learned Amicus has highlighted that from the Sketch Map itself, it would be apparent that the shop of the appellant where allegedly the deceased was strangulated to death, put in a paper cartoon box and carried away was done in the shop which was in a busy locality consisting of many other shops and two schools. He has also submitted that it is humanely impossible that such an act can be committed in such a busy area without there being any suspicion from any corners. She has also submitted regarding the lack of any evidence with regard to the cause of death as till the passing of the impugned judgment, there was no report of the FSL and in the opinion given by PW11, who is the Doctor and had conducted the post mortem the cause of death could not be ascertained. Further in the cross examination the said Doctor had deposed that identification can be determined only by DNA profiling which was not done at that point of time.
38. With regard to the aspect of the confession there is also a witness of PW4, who is a videographer, who was called by the Police. The said videographer as PW4 had deposed of recording the confession in video camera which was transmitted to a CD and the disc itself was proved as Page No.# 18/22 material Exhibit A and the seizure list as Exhibit 3. We are however of the opinion that in spite of such confession being recorded in a video camera, the same was admittedly done at the instance and in presence of the Police and therefore would not overcome the caveat put by Section 25 of the Indian Evidence Act [corresponding to section 23 of BSA]. We are also conscious of the requirement of law that in case of electronic evidence a certificate is required to be given by the maker of the said electronic evidence and only thereafter such evidence would be admissible. Such mandate has been laid down in Section 65 B of the Indian Evidence Act [corresponding to Section 63 of BSA] which has not been followed in the instant case.
39. The Hon'ble Supreme Court in the landmark case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has laid down the five golden principles to be followed in cases of circumstantial evidence. For ready reference, the relevant portion is extracted hereinbelow-
"151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's Page No.# 19/22 case (at pp. 345-46 of AIR) (supra) :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consisent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
7. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following Page No.# 20/22 observations were made :
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
8. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
40. By following the aforesaid principles, in the instant case we have found that there are no concrete materials to link the appellant with the offence and no other hypothesis is possible. We find that there are missing links in the chain of circumstances including lack of any conclusive report regarding the cause of death and failure of the prosecution to do a DNA matching.
Page No.# 21/22
41. In the case of Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC 406, the aspect of suspicion vis-à-vis the requirement of proof beyond all reasonable doubt in a criminal case has also been laid down which reads as follows:
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is Page No.# 22/22 not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
42. In view of the aforesaid facts and circumstances, we are of the considered opinion that the materials in this case would not be sufficient to come to a conclusion of guilt and that the same has been proved beyond all reasonable doubt. We are of the opinion that the benefit of doubt is to be given to the appellant. Accordingly, we set aside the impugned judgment and order dated 21.09.2021 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 103/2017 (GR Case No. 3164/2016) under Sections 302/201 of the Indian Penal Code [corresponding to section 103/238 of BNS], thereby sentencing the appellant under Section 302 Indian Penal Code [corresponding to Section 103 of BNS]. The appellant is accordingly directed to be released forthwith unless he is wanted in any other case.
43. The appeal accordingly stands allowed.
44. Send back the TCRs.
45. For the valuable assistance rendered by Shri A. Ahmed, the learned Amicus Curiae, we record our appreciation and she would be entitled to the prescribed fee.
JUDGE JUDGE Comparing Assistant