Allahabad High Court
Ajay And Another vs State Of U.P. on 6 March, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 22.01.2020
Delivered on : 06.03.2020
JAIL APPEAL No. 1807 of 2014
1. Ajay
2. Vijay -------Appellants
Vs
State of Uttar Pradesh ------Respondent
_______________________________________________________
For Appellant : Sri Ajay Singh (Amicus Curiae)
For Respondent/State : Sri Amit Sinha, AGA _______________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. This appeal has been preferred against the impugned judgment dated 24.10.2013 and order dated 25.10.2013, passed by learned Addl. District & Sessions Judge, Court No, 11, Agra in Session Trial No 1222/08 (State V Ajay & others) under Sections 302, 201, 376 and 120-B of Indian Penal Code (hereinafter referred as IPC), arising out of crime No. 246/08, PS Sadar, Agra, whereby accused-appellants Ajay and Vijay have been convicted under sections 302/34 and Section 376 of IPC and sentenced to imprisonment for life, with a fine of Rs.10,000/- and ten years rigorous imprisonment, with fine of Rs. 5000/- respectively. In default of payment of fine imposed under Section 302/34 IPC, appellants have to undergo one year additional rigorous imprisonment and in case of default of payment of fine imposed under Section 376 IPC, appellants have to undergo six months additional imprisonment. Both the sentences were directed to run currently. Co-accused Jamuna Devi was acquitted of charge u/s 120-B of IPC.
2. Prosecution version is that house of one Navratan Singh was being constructed in the premises adjoining to the house of complainant/PW-1 Lajjawati. On the night of 02.05.2008 at 8:00 PM, complainant's daughter Km. Manisha, aged about 9 years, was taking meal at the roof of her house and at that time, accused Ajay and Vijay were consuming liquor on the roof of under construction house of Navratan Singh. They have given a piece of ice to the complainant's daughter and she brought the same at her house, but she again went at the roof. At around 9:00 pm, complainant searched Manisha at roof, but she was not there. Accused-appellant Ajay and Vijay were also not there. While making search of deceased in and around, one Narayan Singh told the complainant that deceased Manisha was being taken away by accused Ajay and Vijay. However, despite sufficient efforts, Manisha could not be traced. On next day morning at about 6:00 am, complainant was informed that dead body of her daughter is lying in field of dairy farm. Complainant went there and saw that dead body of her daughter Manisha was lying there and that there were injuries on her body and she was bleeding at her private parts. Complainant has alleged that her daughter was molested and killed by accused Ajay and Vijay and thereafter, her dead body was concealed in the field of dairy farm.
3. Complainant/PW-1 Lajjawati, reported the matter to police by submitting written complaint Ex. Ka-1, and on that basis, case was registered against both the accused persons on 03.05.2008 at 8:35 AM under Section 376, 302, 201 of IPC vide FIR Ex. Ka-2.
4. Inquest proceedings were conducted by PW-8 S.I. Surendra Kumar Singh vide inquest report Ex. Ka-2 and the dead body of the deceased was sealed and sent for postmortem.
5. Postmortem on the dead body of deceased was conducted on 03.05.2008 by PW-4 Dr. Surendra Pakhwar, vide postmortem report Ex. Ka-4 and following injuries were found on the person of deceased:
(i) Rigor mortis present on lower part of body.
(ii) Two abrasions 1 cm x .5 cm right side of face distance between 1.5 cm.
(iii) Abrasion 5 cm x 3 cm area on the front of neck surrounding area- swelled.
(iv) pubic area labia majora swelled.
(v) Hyoid bone fractured.
As per Autopsy Surgeon, cause of death of the deceased was due to asphyxia caused by strangulation.
6. Investigation of case was taken up by PW-6 S.S.I. Surendra Nath. He has recorded the statements of witnesses and after completion of investigation, charge-sheet was filed in Court.
7. Trial Court framed charge under Sections 376, 302/34 and 120-B IPC against both the accused persons and they pleaded not guilty and claimed trial.
8. In order to bring home the guilt of accused-appellants, prosecution has examined eight witnesses. After prosecution evidence, accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication.
9. After hearing and analyzing the evidence on record, trial Court convicted both the accused appellants under Sections 302/34 and 376 IPC vide impugned judgment dated 24.10.2013 vide order dated 25.10.2013 they were sentenced, as stated in paragraph no.1 of this judgment.
10. Being aggrieved by the impugned judgment and order accused-appellants have preferred the present appeal.
11. Heard Sri Ajay Singh, learned Amicus Curiae for the appellants and Sri Amit Sinha, learned A.G.A for the State and perused the record.
12. Learned counsel for the appellants has submitted:
(i) that there is no eye-witness account to the alleged incident and that alleged evidence of 'last seen' by PW-3 Jaswant is highly improbable and there is no legal evidence against the appellants.
(ii) that alleged extra judicial confession made before PW-5 Tej Pal Singh, is not reliable. It was stated that PW-5 Tej Pal is uncle of deceased and it cannot be believed that accused persons would make extra judicial confession before uncle of deceased. Further, PW-5 Tej Pal has made inconsistent statement and his version is suffering from various infirmities and thus testimony of PW-5 is not reliable.
(iii) that prosecution case is based on circumstantial evidence, but chain of circumstances is not complete and that no incriminating circumstance has been proved against the appellants. There is absolutely no evidence that deceased was subjected to rape by the appellants.
(iv) that there are several material contradictions and inconsistencies in the statements of witnesses, which make the involvement of appellants fully doubtful.
13. Per contra, it has been submitted by learned State counsel that deceased was last seen in the company of accused persons and that both the accused-appellants have failed to put up any such case that deceased has parted away their company. Besides that, both the appellants have made extra judicial confession before PW-5 Tej Pal, which has been proved in accordance with law. It was submitted that chain of circumstances is complete and all circumstances proved by prosecution point out the guilt of accused-appellants and that trial court was justified in convicting the appellants.
14. We have considered rival submissions and perused the record.
15. In evidence, PW-1 Lajjawati has stated that deceased, aged about 9 years, was her daughter. On 02.05.2008 at 8:00 pm deceased was having meal at her roof and adjacent to her house, on the roof of under construction house of one Jamuna Devi, accused Vijay and Ajay were consuming liquor. They have given ice piece to deceased and consequently, deceased has given the same to her, but deceased has again went at her roof. At around 9:00 pm, PW-1 Lajjawati searched her daughter at roof, but she was not found there and that Ajay and Vijay, who were sitting in adjacent roof, were also not there. While deceased was being searched, one Narayan Singh told her that he has seen accused Ajay and Vijay taking away her daughter and when he has asked them as to where they were taking away the deceased, they have told that they were taking her to shop to provide sweet dish. On the next day morning, PW-1 came to know that dead body of her daughter was lying in field of dairy farm. She went there and saw that there were injuries on the body of deceased and she was bleeding at her private parts. PW-1 Lajjawati has further stated that about 15 days prior to incident, on account of some dispute over purchasing some items from shop of Jamuna Devi, she has threatened to ruin her family and children. PW-1 has stated that Jamuna Devi has hatched a conspiracy with accused Ajay and Vijay and thereafter deceased was raped and murdered by Ajay and Vijay.
16. PW-2 constable Umesh Kumar is a formal witness, who has recorded FIR.
17. PW-3 Jaswant has stated that both accused Ajay and Vijay used to work at house of Jamuna Devi. On 02.05.2008 at about 9:00 PM, when he was coming to his home, accused Ajay and Vijay were taking away deceased Manisha and when he inquired, they have told that they were taking deceased to provide her some sweet dish. When he reached in front of house of Jamuna Devi, she has also told that accused Ajay and Vijay have taken away deceased to provide her some sweet dish. On next day morning, he came to know that deceased has gone missing and after that he came to know that deceased has been murdered. As per PW-3 Jaswant, deceased was raped and murdered by accused Ajay and Vijay and that Jamuna Devi was also involved in this incident and she has got committed this crime from Ajay and Vijay.
18. PW-4 Dr. Surendra Kumar has conducted postmortem on the dead body of deceased vide postmortem report Ex. Ka-4.
19. PW-5 Tej Pal stated that on 02.05.2008 at around 8:30 pm when he was present at Sewla stand, accused Ajay has met him and told that he (PW-5 Tej Pal) has good relations with MLA Gorelal and he needs his help. PW-5 Tej Pal stated that Ajay told him that under influence of liquor, they both have done evil act with deceased Manisha and thereafter he and Vijay have committed her murder and thus Ajay has sought help from PW-5 Tej Pal but he has refused to help them.
20. PW-7 S.S.I. Anand Kumar Singh, has conducted initial investigation. He has prepared site plan of spot vide Ex. Ka-5. Sleepers and underwear of deceased were taken into possession vide seizure memo Ka-6. Clothes of accused Ajay were also seized vide Ex Ka-7. PW-6 SSI Surendra Nath has conducted subsequent investigation. He has recorded statements of witnesses and has filed charge-sheet
21. PW-8 S.I. Surendra Kumar, has conducted the inquest proceedings.
22. In this case, there is no eye-witness account to the alleged incident and that the case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone, but for that prosecution must establish chain of circumstances, which consistently points to the guilt of accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence. In landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Hon'ble Apex Court held as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is 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 accuses, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
In Joseph vs. State of Kerala, [(2000) 5 SCC 197], court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
"it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79). In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, the Court held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, the Court was considering a case based on circumstantial evidence and taking note of the well settled legal position, in Paragraph 9 and 10, the court held:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, although the case was based on last seen theory, the Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."
In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. The Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down the circumstance with which the court should be satisfied in a case based on circumstantial evidence alone and held as under:-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-
"4. ..the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh AIR 1952 SC 343, 1953 CriLJ 129, wherein the Apex Court held as follows:
"10......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
In case of Chandru @ Chandrasekaran Versus State rep. By Dy Superintendent of police CB CID & Anr, Criminal Appeal No. 1193 of 2011 decided on 12.02.2019, after referring to above stated case of Hanumant v. State of Madhya Pradesh (supra), it has been observed by the Hon'ble Supreme Court that this law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. The law can be summarised in the following terms:
1, The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2, The circumstances should unerringly point towards the guilt of the accused;
3, The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4, That there should be no probability of the crime having been committed by a person other than the accused.
From the aforesaid authorities, it is clear that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted [See Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272]. The principle that emerges from the above discussed decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Hon'ble Apex Court.
23. Keeping in view the above stated position of law, when we revert to the facts of present case, one of the circumstance relied by prosecution is that deceased was last seen in the company of both accused persons. In this regard, statement of PW-1 Lajjawati is to the effect that on 02.05.2008 at 8:00 PM, on the roof of adjoining under construction house, both the accused appellants Ajay and Vijay were having liquor and that they have given an ice piece to deceased girl, which was given by deceased to PW-1 Lajjawati and that deceased girl again went to the roof and at around 9:00 PM, when PW-1 went at the roof to look the deceased, she was not found there and both the accused appellants were also not there. PW-1 Lajjawati has also stated that while making search for deceased, Narayan Singh and Jaswant Singh have told her that they have seen that deceased was being taking away by both the accused persons and that accused persons have told that they were taking the deceased for providing her some sweet dish. It is not in dispute that dead body of deceased was recovered next day morning in the field near the dairy farm. Alleged Narayan Singh has not been examined by the prosecution. In her cross-examination, PW-1 Lajjawati has admitted that above stated Jaswant is her brother and that she has neither seen the incident, nor she has seen the accused persons taking away her daughter. She has clarified that she has not seen as to when her girl has gone, but deceased has brought an ice piece at around 8.00-9.00 PM and she has told her that it was given by accused persons. Considering statement of PW-1 Lajjawati in its entirety, it is apparent that there is no categorical version of PW-1 Lajjawanti that she has seen the deceased girl with accused appellants at the alleged adjoining roof of under construction house, rather her version is that she was told by her daughter (deceased) that she was given an ice piece by accused appellants. Thus, it is clear that PW 1 Lajjawanti has not seen the deceased in the company of accused persons and her version is that when she was searching her daughter, PW 3 Jaswant has told that he has seen that the deceased was being taken away by accused persons.
24. So far as testimony of PW 3 Jaswant is concerned, it may be noticed that he is brother of complainant. PW-1 Lajwanti has stated in her cross-examination that Jaswant has told her on the same night that he has seen accused appellants Ajay and Vijay taking away the deceased girl but in the night no report was lodged. PW-3 Jaswant has stated that on 02.05.2008 at around 9:00 PM, he has seen that deceased girl was being taken away by accused-appellants Ajay and Vijay and on inquiry, they have told that they were taking the deceased girl to provide her some sweet dish and that when PW-3 Jaswant reached in front of the house of Jamuna Devi, he was told by Jamuna Devi that accused persons have taken away deceased girl by informing her. In his cross-examination, PW-3 Jaswant has stated that at the time of incident, he was with his sister Lajjawati, whereas on other hand he has stated that it was at about 6:00 AM on next day, when he came to know that Manisha (deceased) was missing and that he has not made any search for Manisha. Thus, on the other hand, PW 3 Jaswant states that on 02.05.2008 at about 09.00 PM, he has seen that accused-appellants were taking away the deceased and he has told this fact to PW 1 Lajjawanti and that on that night he was with Lajjawanti and on the other, he says that he came to know next day at 06.00 AM that deceased was missing. Further, version of PW 1 Lajjawanti is that when she was making search of deceased, she was told by PW-3 Jaswant that deceased was taken away by accused-appellants, but PW-3 Jaswant has stated that he has not made any search of deceased on that night and he came to know on next day morning that deceased was missing. All these facts raise doubt about authenticity of the version of PW 3 Jaswant. It may be seen that PW-1 Lajjawati has stated that when she was making search for her daughter, she has also made inquiry from accused Ajay and Vijay, but they have told that deceased girl was not with them, whereas her version in examination-in-chief is that while she was making search for her daughter, she was told by PW-3 Jaswant that deceased was seen going with accused Ajay and Vijay. If it was so, it was quite natural that report must have been lodged against accused Ajay and Vijay in the night of that day itself, but FIR has been lodged on the next day after recovery of dead body. Further statement of PW-3 Jaswant, in his cross-examination, is to the effect that he came to know on the next day morning at 6:00 AM that deceased was missing. Here, it may also be stated that PW-3 Jaswant is brother of PW-1 Lajjawati and that PW-1, in her cross-examination, has stated that her brother Jaswant was not residing in Agra, rather he was residing in Bharatpur, but he used to run a shop in Agra. Considering the inconsistencies and infirmities emerged in statement of PW-3 Jaswant, his statement, that he has seen that deceased was being taken away by accused appellants, does not inspires confidence.
25. After considering the entire evidence, it is apparent that PW-1 Lajjawanti has not seen the deceased in the company of accused-appellants and that statement of PW 3 Jaswant, that he has seen the accused-appellants while they were taking away deceased, is also suffering from material inconsistencies and infirmities and does not inspire confidence. Here, it has also to be kept in mind that PW-3 Jaswant is brother of PW-1 Lajjawant and that independent witness of alleged 'last seen' namely Narayan, has not been examined by the prosecution. Considering the entire evidence in attending facts and circumstances of the case, it is clear that there is no cogent evidence that deceased was last seen in the company of accused-appellants.
26. Here it may be stated that in Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715, the Hon'ble Apex Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Similarly in Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372, it was reiterated by the Hon'ble Supreme Court that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishraand Another (1996) 11 SCC 264, the Supreme Court held that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances. In Bharat v. State of M.P (2003) 3 SCC 106; two circumstances on the basis whereof the appellant had been convicted were (i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. The Supreme Court held:
"Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant."
Applying the aforesaid legal preposition in the present case, it is quite apparent that the neither the chain of circumstances is complete nor the alleged circumstance of last seen has been established.
27. So far as alleged extra judicial confession made by accused Ajay before PW-5 Tej Pal is concerned, it may be stated that PW 5 Tej Pal has admitted in his cross-examination that he is real uncle of deceased Manisha and thus, it appears highly improbable that accused would make any such confession before him. Further, there is nothing to indicate that PW-5 Tej Pal was a person of such status or position that he could have helped the accused in said case. Even otherwise, the version of this witness PW-5 Tej Pal is quite inconsistent. In his cross-examination, he goes to say that deceased girl was killed in his presence, while there is absolutely no such prosecution version that incident took place in front of PW-5 Tej Pal. No such statement was made by him during investigation. After recovery of dead body, PW-5 Tej Pal has neither informed this fact to the complainant nor to the police. However, in his further cross-examination, he back-tracks and says that he has not seen the incident by his own eyes and that the fact stated by him earlier, that he has seen the incident, is false. He has also stated that at the time of recovery of dead body, accused Ajay has also met there and he was dragged by him to the house of Lajjawati, while there is no such prosecution version. In view of cross-examination of PW-5 Tej Pal, he appears thoroughly unreliable witness. The trial court has also disbelieved the evidence of this witness. In view of all these facts, it is apparent that prosecution could not establish alleged extra judicial confession.
28. In view of evidence available on record, it appears that there is no categorical and reliable evidence that deceased was last seen with the accused persons. Similarly, alleged extra judicial confession could also not be established. Here it would be relevant to mention that no recovery of any incriminating article has been made from accused-appellants or at the instance of accused-appellants. Though alleged circumstance of 'last seen' has not been established, but it would also be relevant to mention that there is time gap of whole night between alleged last seen and recovery of dead body of deceased. It is established from medical evidence that before her murder, deceased was subjected to rape, however, there is no such forensic report to connect the accused-appellants with said rape and murder of deceased.
29. No doubt, the incident in question is quite heinous as a nine years old innocent girl was ravished and brutally done to death, however suspicion howsoever grave, cannot take place of proof. As held in the case of Balwinder Singh (supra), in a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. In this case, after taking into consideration the totality of the facts and circumstances of the case and the evidence led on record by the prosecution, we find that many important links are missing so as to form the complete chain of evidence, which could conclusively establish the guilt of the accused persons. The only incriminating evidence against the accused persons, that the deceased was last seen in their company, has not been fully established. The circumstantial evidence relied upon by the prosecution does not satisfy the test laid down by the Hon'ble Apex Court through various pronouncements. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt that the appellants and they alone committed the offence.
30. In view of the above, it will not be safe to uphold the conviction of the accused appellants Ajai and Vijai in commission of rape and murder of the deceased. The accused-appellants Ajai and Vijai deserve for benefit of doubt.
31. Appeal succeeds and is allowed. The impugned judgment and order dated 24.10.2013/25.10.2013 passed by the Trial Court is hereby set aside and both accused-appellants Ajay and Vijay, are acquitted of the charges levelled against them. Both accused-appellants Ajai and Vijai are in jail, they shall be released forthwith if not required in any other case.
32. We appreciate the assistance rendered Sri Ajay Singh, learned Amicus Curiae and it is directed that he shall be paid Rs 7000/ (Rs Seven thousands) by State Government.
33. A copy of this judgment be sent to the court concerned forthwith for necessary compliance.
Date: 06.03.2020
A. Tripathi
(Raj Beer Singh, J) (Pritinker Diwaker, J)