REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1677 of 2011
Surajdeo Mahto and Anr. ..... Appellant(s)
VERSUS
The State of Bihar ..... Respondent
JUDGEMENT
Surya Kant, J.
Surajdeo Mahto (Appellant No.1) and Prakash Mahto (Appellant
No.2) have laid challenge to the judgment dated 20.05.2010 passed by
the High Court at Patna, whereby, the order of their conviction and
sentence dated 13.05.1988 passed by the 3rd Additional Sessions
Judge, Nawadah was confirmed. Both the Appellants have been
convicted for offences under Section 302 read with section 34 of the
Indian Penal Code [in short, “IPC”] read with Section 120B of the IPC
and have been sentenced to life imprisonment for each of the offences.
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Additionally, Appellant No.1 has also been convicted under section
364 IPC and has been sentenced to five years of imprisonment for the
said offence, with a direction that the sentences will run concurrently.
FACTS
2. The prosecution case, in brief, is that on 05.04.1987, Arun
(deceased) and Sunder Prasad (PW17) were putting up in Arun’s
house at Manawan village when Surajdeo Mahto (Appellant No.1) and
Raj Kumar approached Arun and asked him to accompany them to
the Cinema at Nawada village. While Arun was reluctant initially to
accompany them, he eventually agreed when Appellant No.1
volunteered to bear the expenses. Upon Arun’s request, Sunder
Prasad (PW17) also agreed to go along with them to the Cinema. After
the show, Raj Kumar and Sunder Prasad returned to Manawan village
on 06.04.1987 whereas Arun and Surajdeo Mahto did not come back
with them. As Arun did not return, Ramji Mahto (father of Arun; PW16) enquired from Raj Kumar who told him that Arun and Surajdeo
Mahto had gone to Arun’s inlaws’ place in Amwa village.
3. A few more days passed and Arun had not yet returned home,
Arun’s worried family, therefore, sent Raj Kumar to bring him back.
Ramji Mahto also requested his fellow villager Kailash Mahto (PW1) to
join him in looking for Arun. They found out that Surajdeo Mahto and
Arun had visited the latter’s inlaws’ place on 06.04.1987 and stayed
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there till 08.04.1987. It was further discovered that the duo had then
proceeded to Dopta village wherein Appellant No.1’s sister was
married. Thereafter, Appellant No.1 returned to his village Manawan
on 10.04.1987, but whereabouts of Arun were still unknown. When
asked, Appellant No.1 did not provide any credible information about
Arun, instead, he too disappeared and was not seen for the next few
days. Pursuant to Ramji’s request, PW1 visited Dopta on 10.04.1987
but he too was unable to track down Arun. Since Arun was still
untraceable, Ramji Mahto, through his nephew Ishwari Mahto (PW3A), sent information to the Police, which culminated in the lodging of
Sanha Entry No. 227, dated 11.04.1987.
4. In the meantime, Ram Brikch Paswan (PW8), Chowkidar, Circle
No. 7, heard rumours of a dead body in Ram Sagar Ahar (Reservoir)
near Kakolat. On 11.04.1987, he proceeded to the spot and discovered
the dead body. He also found an iron dagger and two lungis near the
body. The statement of Ram Brikch Paswan was subsequently
recorded by the police and treated as a Fardbeyan. Thereafter,
Ramchandra Singh (PW18), OfficerIncharge, Govindpur Police
Station reached the spot and prepared the inquest report in the
presence of witnesses. Upon inspecting the place of occurrence,
additional material such as one pair of slippers, one handkerchief, a
knife and a jerrycan made of plastic were also discovered and seized. A
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seizure list was prepared in the presence of witnesses. The dead body
was then sent for post mortem examination.
5. On 12.04.1987, Ramji Mahto (PW16) received information that a
dead body of a male person was brought in by the Govindpur Police
Station. Subsequently, Ramji Mahto along with some covillagers went
to the Police Station and identified that the dead body was that of his
son Arun.
6. The investigation then proceeded in light of the abovestated
facts, and upon collection of substantial evidence, a charge sheet was
filed against Surajdeo Mahto (Appellant No.1), Prakash Mahto
(Appellant No.2), Chando Mahto, Shankar Mahto and Raj Kumar
Mahto. The case was committed to the court of 3rd Additional Sessions
Judge, Nawadah and charges were framed against the accused
persons for offences under sections 364, 120B and 302 read with
section 34 of the IPC. The accused persons abjured their guilt and
claimed trial.
7. In the eventual trial, a total of 18 witnesses were examined by
the prosecution. No documentary evidence was relied upon by the
prosecution. The case of the prosecution rested heavily upon
circumstantial evidence, including deposition of Ramji Mahto (PW16),
father of the deceased. PW16 in his deposition alleged that Surajdeo
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Mahto (Appellant No.1) had lured the deceased away on the pretext of
watching cinema on 05.04.1987. PW16 deposed that “Arun told him
that he was not ready to go. Surajdeo told him that he will bear
the cost. Thereafter on being pressurized by Surajdeo, Arun went
out with Surajdeo, Raj Kumar and Sunder”. PW16 also deposed
that it was at his instance that Ishwari Mahto (PW3A) went and
informed the police on 11.04.1987 about Arun’s disappearance, and
on 12.04.1987 he visited Govindpur Police Station and identified the
dead body of Arun. PW16 further identified one of the seized lungis
belonging to Suarjdeo Mahto (Appellant No.1). The crossexamination
of PW16 also brought to light the motive attributed to the accused
persons: the relations between the parties were strained after a
Panchayati (village meeting) had been held in connection with the
illicit relationship of the deceased with the sister of Appellant No.1.
8. Likewise, Ishwari Mahto (PW3A) deposed that he had last seen
Arun in the company of Appellant No.1, Raj Kumar and Sundar on
05.04.1987, and he was informed by Appellant No.1 that they were
going to see the cinema. Ishwari Mahto further shed light on the feud
between the parties and he stated that “Previously the families of
Surajdeo and Arun had visiting and dining terms with each
other, but it stopped after the month of Magh”. Sunder Prasad
(PW17) corroborated the deposition of PW16, and stated that
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Appellant No.1 pressurized Arun to accompany him and Raj Kumar to
watch Cinema. PW17 also deposed to accompanying Appellant No.1,
Arun and Raj Kumar to the Cinema and further revealed that after the
Cinema, instead of returning back to their village, Appellant No.1
forced the group to visit Kumbhrawan village. PW17 stated that upon
Appellant No.1’s insistence, they spent the night in Prakash Mahto’s
house (Brotherin law of Surajdeo; Appellant No.1). The next day, i.e.,
06.04.1987, when PW17 insisted on returning back to the village,
Surajdeo Mahto (Appellant No.1) informed him that he and Arun will
be visiting Amwa Village.
9. Dilkeshwar Mahto (PW2), Arun’s fatherinlaw, deposed that
Arun and Appellant No.1 visited his house in Amwa Village on the
evening of 06.04.1987 and stayed there till 08.04.1987. He further
deposed that “On Wednesday, I asked Arun and Surajdeo
insistently to stay further, but Surajdeo did not agree and took
Arun with him saying that they had to go Dopta.”
10. Bipat Mahto (PW4), deposed that on Thursday, i.e., 09.04.1987,
he received information from his grandson that Arun was in
Kumbhrawan village and was staying at the house of Prakash Mahto
(Appellant No.2). Since PW4 was Arun’s uncle and also resided in the
same village, he and his wife went to invite Arun to their place. He
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stated, “We met Arun, Prakash and Surajdeo at that place. I
invited Arun to come to my place and take meal there. Prakash
told me that he had arranged food for them, hence they would
go after taking meal at his place.” He further stated that despite
Appellant No.2’s assurance, Arun did not come to their place. Later,
when PW4’s wife went again to call Arun, she was informed by
Appellant No.2’s wife that Arun had gone back. Sheodani Mahto (PW3), who is the son of PW4 and the cousin of the deceased, also
deposed about the presence of Arun in Kumbhrawan village on
09.04.1987. According to him, when he was returning back to the
village, he saw Arun on the outskirts of the village in the company of
Surajdeo, Prakash, Raj Kumar and Shankar, and upon asking them
where they were going, Surajdeo informed PW3 that all of them were
going towards Kakolat village.
11. We may now consider the statements of Bharat Singh (PW10),
Kashi Mahto (PW11), Ram Prasad (PW12), Baleshwar Prasad (PW13)
and Mathura Saw (PW14). PW10 and PW11 deposed that on the
night of 09.04.1987, they had heard a motor vehicle (tractor) going in
the direction of Kakolat. However, PW10 and PW11 had not seen the
passengers in the vehicle. PW12, PW13 and PW14 were all present
near PW14’s shop in the late hours of 09.04.1987 and they deposed
about seeing two persons returning from Kakolat. PW12 went further
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and stated that he was able to identify the persons who had stopped
near PW14’s shop. Upon seeing the accused persons in Court, PW12
identified Appellant No.2 as one of the persons who had come to the
shop that night. PW12 in his crossexamination admitted that the
police had not asked him to take part in a Test Identification Parade
[in short, “T.I.P.”]. It is pertinent to mention that this set of evidence
only finds relevance because the dead body of Arun was discovered in
Ram Sagar Ahar which was near Kakolat village.
12. The evidence of Kailash Mahto (PW1) and Umeshwar Prasad
(PW5) also bears some relevance to the prosecution’s case. PW1
deposed that on 09.04.1987 he was requested by PW16 to search for
Arun. He further stated that the next day, i.e., 10.04.1987, he went to
the market and there he found Appellant No.1. PW1 claims that when
he enquired about Arun’s whereabouts from him, Surajdeo Mahto
(Appellant No.1) told him that after viewing the cinema, Arun had gone
to Amwa village whereas he went to Dopta village. PW5 too has
deposed that he met Surajdeo on 10.04.1987 at Barnwal Medical Hall
at Hisua where Appellant No.1 told him that Arun had gone to Delhi.
13. Ram Brikch Paswan (PW8), Chawkidar Circle No.9, was the one
who discovered the dead body of Arun on 11.04.1987. In his crossexamination he deposed that he had heard rumors of a dead body in
Ram Sagar Ahar on the night of 10.04.1987 itself, however, it being
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night time and the place being a forested area, he could go there on
the following day only. PW6, is the Doctor who conducted the post
mortem examination of the dead body. Upon examining the injuries
present on the deceased’s body, PW6 opined that the injuries were
sufficient to cause death in the normal course of nature, and the time
elapsed from death was 36 to 72 hours.
14. The case of the accused persons, as recorded in their statements
under section 313 of the Code of Criminal Procedure, 1973 was one of
denial. No other evidence was led by the defence.
15. The Trial Court was conscious of the fact that in order to prove
the guilt of the accused by means of circumstantial evidence, the
chain of evidence should be completed so as to exclude all the
hypothesis of innocence of the accused. Upon extensively scrutinizing
the deposition of witnesses, the Trial Court observed that there was a
paucity of eyewitnesses to explain circumstances in which the
deceased met his end and the evidence on record fell short of
establishing the complicity of Chando Mahto, Shankar Mahto and Raj
Kumar Mahto. The Court, however, held that the circumstantial
evidence on record did suggest that Appellant No.1 lured the deceased
out of his house on 05.04.1987; remained with him all along;
Appellant No.2 then joined them on 09.04.1987; and thereafter the
present appellants conspired and murdered the deceased near
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Kakolat. Negating the contentions raised by the defence, the Trial
Court believed the testimony of PW16 in toto and held that purported
motive as well as the identification of incriminating material by PW16
further established the guilt of the appellants. While the Trial Court
observed that there were some inconsistencies in the case put forth by
the prosecution, but those were held to be “petty details” and minor
contradictions.
16. The Trial Court further noted that Appellant No.1 had exhibited
behaviour that could not have been considered normal. Judicial notice
of the false and evasive replies given by Appellant No.1 to PW1 and
PW5 when they inquired about the whereabouts of the deceased was
also taken. The Court held that since various links in the chain of
evidence have been satisfactorily proved, the false explanation given
by Appellant No.1 could be construed as an additional link in the
chain of evidence, which would lend further support to the
prosecution case. The Court further observed that when enquiries
were taking place, instead of helping in the search of Arun, Appellant
No.1 absconded, and he surrendered before the court on 18.04.1987
only, when coercive measures were undertaken to compel his
appearance. Lastly, unconvinced by the defense taken by the
Appellant, the Trial Court opined that the plain denial of the
prosecution allegations by the accused persons was nothing but an
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attempt to screen themselves from the “rigours of legal punishment”.
The Trial Court thus held that the circumstantial evidence in the
instant case was clinching, and consequently convicted the present
appellants.
17. Discontented with their conviction, the appellants preferred an
appeal before the Patna High Court. Upon a reappraisal of the
evidence on record, the High Court observed that the prosecution
witnesses were able to provide a date and stage wise testimony in
order to prove the prosecution case. The High Court further laid
emphasis on the false information provided by Appellant No.1 to PW5.
Considering these aspects, the High Court vide the impugned
judgement dated 20.05.2010 affirmed the findings of the Trial Court
and upheld the conviction and sentence of the appellants.
18. The aggrieved appellants are now before this Court.
CONTENTIONS
19. We have heard Learned Counsel for the appellants at
considerable length. The principal contention is that the entire case
rested on circumstantial evidence and there was no eyewitness to the
alleged incident. Learned Counsel submitted that no independent
witnesses had been examined by the prosecution and all the witnesses
were either relatives or close friends of the complainant party. The
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Counsel further pressed that the Courts below have completely erred
in relying upon the testimony of PW10 to PW14. As far as Appellant
No.2 is concerned, it was submitted that only evidence against him
was that of Sheodani Mahto (PW3) and Baleshwar Prasad Yadav (PW12). The Counsel asserted that PW3 had seen the deceased in the
company of Appellant No.2 two days prior to the recovery of the dead
body, and hence the evidence of PW3 did not support the prosecution
case. Casting doubts on the credibility of the evidence of PW12, it was
claimed to be highly improbable that PW12 was able to see the face of
Appellant No.2 only through the light of a lantern on a pitchdark
night. Learned Counsel further contended that the failure on the part
of the investigating agency not to send the knife recovered at the spot
of occurrence for forensic examination was fatal to the prosecution
case. Hence, it was urged that the Courts below fell in grave error in
convicting the appellants merely on the basis of ‘last seen theory’.
20. In all fairness, we may notice an additional plea taken by
Appellant No.1, which has been raised for the first time before this
Court. It was claimed that Appellant No.1 was a ‘juvenile’ on the date
of occurrence. In support of such claim, Learned Counsel relied on the
copies of ‘School Leaving Certificate’ along with an ‘admit card’ issued
by the Bihar School Examination Board, according to which Appellant
No.1 was purportedly born on 01.03.1970. As the date of occurrence
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was between 09.04.1987 to 11.04.1987, it is submitted that Appellant
No.1 was 17 years of age at that time and therefore, a juvenile. To
further buttress this claim, Learned Counsel for the appellants drew
our attention to section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000 as well as the decision of this Court
in Abuzar Hossain alias Gulam Hossain v. State of West Bengal1
.
21. On the other hand, Learned Counsel appearing for the State of
Bihar submitted that there has been a concurrent finding of guilt by
two courts on minute examination of the evidence on record which
does not warrant any interference by this Court. Relying upon
Inspector of Police, Tamil Nadu v. John David2
, it was urged that
conviction in cases of circumstantial evidence is permissible. The State
Counsel passionately argued that the chain of circumstances in the
present case is complete in every respect. He made pointed reference
that First, the motive, as recorded by the Trial Court, was clearly
established in the present case. Second, both the courts below have
concurrently held that the deceased was last seen alive in the
company of the Appellants. He cited State of Rajasthan v. Kashi
Ram3
, to urge that in situations when the deceased was last seen in
the company of the accused, a presumption would arise that the said
1 (2012) 10 SCC 489, ¶ 39
2
(2011) 5 SCC 509, ¶ 33 to 35
3
(2006) 12 SCC 254, ¶1924
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accused murdered the deceased. It was argued that presumption has
not been dislodged by the Appellants in the present case. Third, the
guilt of the appellants can be adduced from their conduct as not only
did they lure the deceased on the pretext of watching the cinema, but
also gave false and misleading information about the deceased’s
whereabouts. Fourth, the seizures/recoveries made during the
investigation do establish the involvement of appellants, as one of the
two lungis recovered at the place of occurrence was identified as that
belonging to Appellant No.1. Fifth, the medical examination does
establish that the death of the deceased was caused by unnatural
means and, Sixth, the dead body which was recovered has been
identified as that of Arun.
22. Learned State Counsel further canvassed that all the material
witnesses, PW1 to PW14, have corroborated each other’s versions.
Drawing force from the decisions in Sukhar v. State of U.P.4
&
Badruddin Rukonddim Karpude v. State of Maharashtra5
, it was
submitted that the principles of res gestae are applicable to the facts
and circumstances of this case, and the statements made by one
witness to another are admissible in evidence. He also urged that the
absence of T.I.P. in the present case would not be fatal to the case of
the prosecution6
.
4
(1999) 9 SCC 507, ¶ 5 to 10
5
(1981) Supp SCC 1, ¶ 16
6
Malkhansingh v. State of M.P., (2003) 5 SCC 746, ¶ 7, 8 to 16
Page | 14
23. As regard to the plea of Appellant No.1 being a juvenile raised for
the first time before this Court, it was vehemently urged by the State
Counsel that the first appellant deliberately waited till this belated
point of time to raise the plea knowing fully well that in the event of an
inquiry ordered by the Court, there would be no record available to
contradict the documents put forth by him. He further pointed out
certain patent discrepancies in the documents supplied by Appellant
No.1, for instance, the documents did not bear his name, but instead
the name of one ‘Suryadev Prasad’ was mentioned. In furtherance of
his arguments, the Counsel submitted that the purported documents
have not been proved in terms of section 35 of the Indian Evidence
Act, 1872, [in short, “IEA”] and as such could not be accepted. Our
attention was brought to the decision of this Court in Ravinder Singh
Gorkhi v. State of U.P.7
, wherein, the plea of juvenility was rejected
because, interalia, there was an unexplained inordinate delay in
raising the plea.
ANALYSIS
24. We find that two questions fall for our consideration in the
instant appeal; (A) Whether the circumstantial evidence led in the
instant case is so impeachable that it establishes the guilt of the
appellants beyond any reasonable doubt? (B) Whether Appellant No.1
7
(2006) 5 SCC 584, ¶ 39 to 41
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was a juvenile on the date of the occurrence?
25. It may be highlighted at the outset that although the powers
vested in this Court under Article 136 of the Constitution are wide,
this Court in a criminal appeal by special leave will ordinarily loath to
enter into a fresh reappraisement of evidence and question the
credibility of witnesses when there is a concurrent finding of fact, save
for certain exceptional circumstances. While it is difficult to lay down
a rule of universal application, it has been affirmed time and again
that except where the assessment of the High Court is vitiated by an
error of law or procedure, or is based on misreading of evidence, or is
inconsistent with the evidence and thus has led to a perverse finding,
this Court will refrain from interfering with the findings of the Courts
below.
26. Regardless of such selfimposed restrain, and in the interest of
justice, we have given thoughtful consideration to the rival
submissions and have endeavored to peruse and discussed the entire
evidence on record to ascertain whether or not the concurrent finding
of conviction suffers from any perversity and/or whether the
conviction of the appellants is legally and factually sustainable.
A. Whether the guilt of the accused has been proved beyond
reasonable doubt?
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27. This Court, in its muchcelebrated judgment of Sharad
Birdhichand Sarda v. State of Maharashtra8
, has elaborately
considered the standard necessary for recording a conviction on the
basis of circumstantial evidence and has further held:
“153.xxx xxx xxx
(1) The circumstances from which the conclusion of guilt
is to be drawn should be fully established.
xxx xxx xxx
(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.”
These five cardinal principles have been reiterated on numerous
occasions, including in the recent decisions in Mohd. Younus Ali
Tarafdar v. State of W.B9 & R. Damodaran v. State Represented
8
(1984) 4 SCC 116, ¶ 153
9
(2020) 3 SCC 747, ¶ 10
Page | 17
by the Inspector of Police10. Keeping these conditions in mind, we
shall now examine the case at hand.
28. It appears to us that the following circumstances need to be
considered to arrive at the guilt of the appellants: (i) Last seen theory;
(ii) Motive & (iii) false information provided and subsequent conduct of
the appellants.
(i) Last seen theory
29. The case of the prosecution in the present case heavily banks
upon the principle of ‘Last seen theory’. Briefly put, the last seen
theory is applied where the time interval between the point of when
the accused and the deceased were last seen together, and when the
victim is found dead, is so small that the possibility of any other
person other than the accused being the perpetrator of crime becomes
impossible. Elaborating on the principle of “last seen alive”, a 3judge
bench of this Court in the case of Satpal v. State of Haryana11 has,
however, cautioned that unless the fact of last seen is corroborated by
some other evidence, the fact that the deceased was last seen in the
vicinity of the accused, would by itself, only be a weak kind of
evidence. The Court further held:
“……………..Succinctly stated, it may be a weak kind of
10 2021 SCC OnLine SC 134, ¶ 13
11 (2018) 6 SCC 610, ¶ 6
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evidence by itself to found conviction upon the same singularly.
But when it is coupled with other circumstances such as the
time when the deceased was last seen with the accused, and
the recovery of the corpse being in very close proximity of time,
the accused owes an explanation under Section 106 of the
Evidence Act with regard to the circumstances under which
death may have taken place. If the accused offers no
explanation, or furnishes a wrong explanation, absconds,
motive is established, and there is corroborative evidence
available inter alia in the form of recovery or otherwise forming
a chain of circumstances leading to the only inference for guilt
of the accused, incompatible with any possible hypothesis of
innocence, conviction can be based on the same. If there be any
doubt or break in the link of chain of circumstances, the benefit
of doubt must go to the accused. Each case will therefore have
to be examined on its own facts for invocation of the doctrine.”
30. We may hasten to clarify that the fact of last seen should not be
weighed in isolation or be segregated from the other evidence led by
the prosecution. The last seen theory should rather be applied taking
into account the case of the prosecution in its entirety. Hence, the
Courts have to not only consider the factum of last seen, but also have
to keep in mind the circumstances that preceded and followed from
the point of the deceased being so last seen in the presence of the
accused.
31. The prosecution in the present case has undoubtedly established
that the deceased was last seen alive in the company of the appellants,
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and has also adduced evidence about the events leading up to and
following the point of last seen. The depositions of PW2, PW3A, PW16 and PW17 do suggest that prior to the point of last seen, the
deceased was constantly in the company of Appellant No.1. PW3 and
PW4 are the persons who lastly saw the deceased alive on
09.04.1987, and they have categorically deposed that they had seen
the deceased along with the appellants. Through the depositions of
PW1, PW5, & PWs 10 to 14 the prosecution has attempted to shed
light on the events that occurred post the point of last seen.
32. The contention that most of the prosecution witnesses were
either related or close to the complainant party and their testimony
could not be relied upon in the absence of corroboration by any
independent witnesses, in our opinion, is without much substance. It
is trite in law that the job of the prosecution is to put forth the best
evidence that is collected during the investigation. Although it is ideal
that the prosecution case is further substantiated through
independent witnesses, but it would be unreasonable to expect the
presence of thirdparties in every case. This Court has consistently
held that the prosecution’s case cannot be discarded merely on a bald
plea of all witnesses being related to the complainant party. Hence, in
order to draw an adverse inference against the nonexamination of
independent witnesses, it must also be shown that though the best
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evidence was available, but it was withheld by the prosecution.
33. That apart, PW3 saw Arun and the Appellants on the outskirts
of Kumbhrawan village, whereas, PW4 saw Arun and the appellants
inside Appellant No.2’s house. Neither of these witnesses claim to have
seen the deceased and the appellants at a public place. Thus, it would
not be illogical to infer that there was no independent witness to this
occurrence. Further, the deposition of both PW3 and PW4 seems
natural and nothing has been adduced in their crossexamination for
us to disbelieve their testimonies.
34. The Counsel for the Appellants further assailed the last seen
theory and submitted that even if the deposition of PW3 was
considered true, he had seen Arun in the company of the appellants
on 09.04.1987, which was two days before the discovery of the dead
body. It was, thus, argued that the intervening time period between
the two events could not rule out the possibility of intervention by a
third party and as such there wasn’t a continuous chain of
circumstances. While this argument seems attractive at the first
instance, but, when considered in the light of testimonies made by the
independent witnesses PW6 and PW8, it stands completely belied.
The Prosecution case is that both the Appellants committed the
murder on the night of 09.04.1987. PW8, who discovered the body of
Arun on 11.04.1987, deposed that he had heard rumors about the
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dead body the previous night itself, however, on account of it being
dark and a forested area, he was only able to proceed to the spot the
next day. Given that the body was lying on the spot at least since
10.04.1987, the instant crime could have been committed on or before
10.04.1987. The medical evidence in the present case further braces
the prosecution story. PW6, the Doctor, examined the body of the
deceased on 12.04.1987. In his opinion, the time elapsed since the
death of Arun was 36 to 72 hours. Thus, the medical evidence fully
corroborates the prosecution story of the murder having being taken
place on 09.04.1987. We also note that the Courts below have dealt
with this issue elaborately and have held that the murder of the
deceased indeed took place on 09.04.1987. We see no reason to take a
contrary view.
35. Counsel for the State appears to be right in relying upon the
decision of this Court in Kashi Ram (Supra) to assert that once the
fact of last seen is established, the Accused must offer some
explanation as to the circumstances in which he departed the
company of the deceased. This position of law, as covered under
section 106 of the IEA, was duly considered in the case of Satpal
Singh (Supra), wherein, this Court clarified that if the accused fails to
offer any plausible explanation, an adverse inference can be drawn
against the accused. In the instant case also, Appellant No.1 has been
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unable to offer any explanation as to circumstances in which he
departed from the company of the deceased.
36. As regard to the reliability of the depositions of PW10 to PW14,
the primary contention is that except PW12, none of the other
witnesses were able to identify the present appellants. It was further
contended that the testimony of PW12 seems doubtful as it was
highly improbable that the witness was able to see Appellant No.2
through the light of a lamp. Assuming that the depositions of PW10,
PW11, PW13 and PW14 do not add much value to the case in hand,
the question whether PW12 could or could not identify Appellant No.2
is purely a factual issue and courts below have taken a concurrent
view in relation thereto. Suffice to say that PW12 was able to identify
Appellant No.2 because of the chickenpox marks on his face. Even in
the initial statement recorded by the police, PW12 had maintained
that one of the two persons who he had interacted with on the night of
09.04.1987, had chickenpox scars on his face.
37. Upon considering the prosecution evidence in its entirety and
having meditated on the grounds raised by the appellants to every
possible extent, we find no reason to disbelieve the prosecution
version of last seen theory against the appellants.
(ii) Motive
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38. If motive in a case is attributed to an accused(s) and thereafter
proved, the probability of the crime being committed by the said
accused is intensified. It is for this reason, that in cases of
overwhelming circumstantial evidence, proof of motive will be an
important piece of corroborative evidence, as well as, form a vital link
in the chain of evidence.
39. The motive attributed to the appellants in this case is that they
murdered the deceased because he was allegedly having an illicit affair
with Rita, sister of Appellant No.1. While none of the witnesses have
specifically deposed about the deceased having an affair with Rita, the
motive, as alleged, does find some corroboration in the deposition of
PW1, PW3A, and PW16. It is revealed from the testimony of PW3A,
that initially there were cordial and friendly relations between the 1st
Appellant and deceased’s family but the same became sour after the
month of February. PW1 who is a fellow villager has corroborated the
testimonies of PW3A. PW16 has categorically deposed that a
Panchayat had been called in regards to the illicit relationship of the
deceased with Rita.
40. The fact of the deceased having an affair with the sister of
Appellant No.1 has of course not been established beyond doubt but
the factum of calling Panchayat so that the issue does not spiral out of
control does suggest that Appellant No.1 carried a motive to eliminate
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the deceased. We may not lose sight of the fact that the events had
occurred in the year 1987, when the rural Indian society was
irrepressibly conservative, and even the slightest rumor of extramarital affairs could flareup tensions. Considering these ground
realities, the Trial Court, in our opinion correctly recorded that the
motive as alleged had been sufficiently proved by the prosecution. We
also note, that the Counsel for Appellants has not mounted any
substantial challenge on the point of motive, and as such, we see no
reason to interfere with the indictment of Appellant No.1 on the point
of motive.
(iii) False information provided by Appellant No.1 and his
subsequent conduct.
41. We may now briefly consider the false information provided by
Appellant No.1 to PW1 and PW5. Both of these witnesses individually
met Appellant No.1 on 10.04.1987 and both of them enquired about
the whereabouts of Arun. Appellant No.1 lied to PW1 and told him
that after viewing the Cinema, Arun alone had proceeded to Amwa
whereas Appellant No.2 had gone to visit Dopta. Even more curiously,
Appellant No.1 informed PW5 that Arun had left for Delhi. It is clear
to us that the false information provided by the first appellant was an
attempt to hide his guilt by derailing the search efforts that were
being conducted. Appellant No.1 thereafter absconded and
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surrendered before the court only after coercive measures were taken.
We are, thus, inclined to agree with the State Counsel that the false
information given by Appellant No.1 and his post occurrence conduct
is relevant to prove an additional link in the chain of incriminating
circumstances.
42. There is, however, a qualitative difference in the evidence led by
the prosecution to prove charges against Prakash Mahto (Appellant
No.2). The prosecution’s case is that it was the 1st Appellant
(Surajdeo Mahto) who allured the deceased and persuaded him to
accompany the said appellant to watch cinema. It is neither their case
nor have the prosecution witnesses deposed that Appellant No. 2 was
involved in the persuasive abduction of the deceased from his house
on 05.04.1987. This has to be seen in the context of motive behind
the offence. It is proved on record that the 1st Appellant had an axe to
grind against the deceased who was allegedly having illicit relationship
with his sister. There is no motive alleged or proved which would have
swayed Appellant No. 2 to commit murder of the deceased. Still
further, prosecution has led no evidence that there was any meeting of
mind between the 1st and the 2nd Appellant on or before 08.04.1987,
or that they hatched any conspiracy together to commit the murder of
Arun. There is also no evidence on record to suggest that Appellant
No.1 disclosed his intention to commit murder of deceased Arun to the
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2
nd Appellant.
43. It is true that the prosecution has led evidence comprising the
statements of PW3 and PW4 who had lastly seen the deceased alive
on 09.04.1987 in the company of the 1st and the 2nd Appellants.
However, until and unless the last seen theory is substantiated by
other circumstantial evidence to constitute an unbreakable chain of
events, the conviction cannot rest solely on the basis that the 2nd
Appellant was also present along with Appellant No.1 in the company
of the deceased when they were seen together on 09.04.1987.
44. It is pertinent to mention that some incriminating material
consisting of one pair of slippers, one handkerchief, a knife, jerrycan
and two lungis were found and seized at the place of occurrence.
While PW16, namely, father of the deceased has identified one of the
seized lungis belonging to Appellant No.1, none of the recovered
articles have been attributed to the 2nd Appellant. The only substantial
evidence against the 2nd Appellant is that he too was in the company of
the deceased and Appellant No.1 on 09.04.1987, i.e., they were seen
together lastly. Even if we were to presume that the deposition of
PW12 identifying Appellant No.2 on the night of 09.04.1987 to be
true, such evidence, may create a strong suspicion in respect of
involvement of the 2nd Appellant in the murder of the deceased, but
then, mere suspicion cannot be accepted as impeccable evidence to
prove his guilt beyond any doubt.
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45. Further, there is post occurrence circumstantial evidence led
against Appellant No.1, namely, that he did not disclose the
whereabouts of the deceased and then surreptitiously disappeared
from the scene till he surrendered in Court. There is no such
allegation of being evasive or absconding post occurrence levelled
against Appellant No.2. There are, thus, missing links in the
prosecution case so far as the 2nd Appellant is concerned.
Consequently, and for the reasons aforestated, we find that the case of
Prakash Mahto (Appellant No.2) is distinguishable from that of
Surajdeo Mahto (Appellant No.1) and the prosecution has not been
able to prove the guilt of 2nd Appellant beyond the pale of doubt. The
2nd Appellant is, thus, entitled to the benefit of doubt.
B. Appellant No.1’s plea of Juvenility
46. There is no gainsaying that section 7A of Juvenile Justice (Care
and Protection of Children) Act, 2000 [in short, “JJ Act”] sets out the
procedure to be followed by a court to determine the claim of
juvenility. Its proviso enables to raise the claim of juvenility before
“any court” and at “any stage”, even after the final disposal of the case.
However, in order to take advantage of the aforesaid provision, there
lies an initial onus on the accused to produce some cogent evidence to
prima facie establish the juvenility on the date of commission of the
offence.
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47. In the instant case, the 1st Appellant has raised plea of juvenility
for the first time before this Court. He has placed before us a School
Leaving Certificate along with an Admit Card issued by the Bihar
School Examination Board, wherein, Appellant No.1’s date of birth is
claimed to be 01.03.1970. It has been asserted that the 1st Appellant
was 17 years old at the time of occurrence. Learned counsel for the
appellants has also drawn our attention to the decision in Abuzar
Hossain (Supra), wherein, this Court exhaustively dealt with the
provisions and the scope of JJ Act and held as under:
“39.3. As to what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial
burden cannot be catalogued nor can it be laid down as to
what weight should be given to a specific piece of evidence
which may be sufficient to raise presumption of juvenility
but the documents referred to in Rules 12(3)(a)(i) to (iii)
shall definitely be sufficient for prima facie satisfaction of
the court about the age of the delinquent necessitating
further enquiry under Rule 12. The statement recorded
under Section 313 of the Code is too tentative and may not
by itself be sufficient ordinarily to justify or reject the claim
of juvenility. The credibility and/or acceptability of
the documents like the school leaving certificate or
the voters' list, etc. obtained after conviction would
depend on the facts and circumstances of each case
and no hardandfast rule can be prescribed that
they must be prima facie accepted or rejected….”
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(Emphasis Supplied)
48. When the documents relied upon by 1st Appellant are analysed
in the backdrop of these settled principles, we find that the same do
not inspire any confidence. The name of Appellant No.1 does not
appear on the documents, instead these belong to one ‘Suryadev
Prasad’. It is nearly impossible to verify the veracity of the two
documents relied upon by Appellant No.1 at this highly belated stage.
Further, the record of the Trial Court does suggest that the name of
the 1st Appellant is ‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In the
absence of any cogent material indicating that the subject –
documents pertain to 1st Appellant only, no case to hold any factfinding enquiry is made out. Consequently, we decline to place
reliance on the documents in question and reject the plea of juvenility
raised by the 1st Appellant.
Conclusion
49. In light of the above discussion, the instant appeal is partly
allowed. While the conviction and sentence of Surajdeo Mahto
(Appellant No.1) is upheld and appeal qua him is dismissed, the 2nd
Appellant (Prakash Mahto) is acquitted of the charges. The bail bonds
furnished by the 1st Appellant are cancelled and he is directed to
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surrender to undergo remainder of the sentence. The 2nd Appellant’s
bail bonds are discharged.
……………………….. CJI.
(N.V. RAMANA)
………..………………… J.
(SURYA KANT)
…………………………...J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 04.08.2021
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