Paragraph numbers below are the court’s original numbering, recovered from the source text.
8. The Trial Court considered each of the circumstances in a – A detailed manner. Regarding the last seen theoty propounded by the prosecution, the Trial Court held that the prosecution proved through the evidence of PW-4 and PW-5 that Rekha Dutta was seen in the company of the accused till 9:00 pm on 27.12.1992. There is no conclusive proof that Rekha Dutta stayed at the bungalow over night. Considering the medical evidence on record, the Trial Court held that the death should have been after 12.00 noon on 28.12.1992 and there was no evidence that the deceased was seen with the accused persons around that time. or thereafter. According to the Trial Court the mere fact that the accused were with the deceased till 9:00 pm on 27 .12.1992 will not by itselflead to an irresistible inference that they committed the crime.
9. The Trial Court accepted the evidence of PW 11 regarding the ante mortem injury No. l which was caused by a sharp weapon due to which Rekha Dutta died. The recovery of khukri pursuant to the disclosure statement was the subject matter of strict scrutiny by the Trial Court. It was observed that the four witnesses to the disclosure D statement and recovery memo, PW 13, PW 14, PW 15 and PW 19 were declared hostile. There was no corroboration to the statement of the investigating officer PW 21 either about the disclosure or seizure. The Court also examined whether the prosecution proved that the weapon seized was used for commission of the offence. PW 19 in whose presence the weapon was seized deposed that there were no blood stains on the weapon. The report of the Forensic Science Laboratory, Guwahati found blood stains but the origin of the blood could not be established. There was no evidence to show that there was human blood on the weapon. The investigating officer spoke about the detection of blood stains in the bathroom of bungalow No.17. The blood which was collected was sent for chemical analysis and the report of the Serologist revealed that the sample gave negative test for blood.
10. The Trial Court categorically held that the prosecution was unable to prove the charge of Section 366-A against Jit Kakati as the deceased was in the company of Jit Kakati of her own volition. A G thorough examination of the entire evidence on record led the Trial Court to hold that the charge under Section 376 (2) (g) against all the accused was not proved. The Trial Court further held that there was no motive on the part of the accused for committing the offence alleged against [2017) 3 S.C.R. A them. On an overall consideration the Trial Court held that the Accused were not guilty of the offences under Section 302, 201 read with 34 as well. It was further held the circumstance of the accused and deceased last seen together on the night of27.02.l 992 by itself is not sufficient to convict the Accused.
11. The High Court confirmed the findings of the Trial Court regarding acquittal of the accused under Section 366-A and 376 (2) (g). The High Court found that the deceased was 24 years of age at the time of the offence. The High Court was conscious of the fact that the judgments of acquittal are not interfered with normally only because another view is possible. The High Court referred to the findings of the C Trial Court that the deceased was in the company of accused till 9:00 pm on 27.12.1992 and the dead body was recovered at 3:00 pm on 29.12.1992. The High Court proceeded on the basis that there was no inordinate delay between the time when they were last seen together and the recovery of the dead body. The High Court also held that it was D inferable that death was caused on the night of28.12. l 992 and the dead body was thrown on the railway track. According to the High Court, that will coincide with the time of death as per the post-mortem report which was around 12:00 noon on 28.12.1992. The High CoUii held that the or.us was on the accused persons to explain and exculpate themselves when the last seen theory was established. In the absence of any E satisfactory explanation the presumption would suggest the guilt of the accused. On the basis of the aforementioned reasoning, the High Court reversed the acquittal of the accused and convicted them for offences under Section 302, 201 read with 34 IPC and sentenced them to undergo imprisonment for life.
12. Jit Kakati was acquitted for committing an offence under Section 366-A and his acquittal was confirmed by the High Court. Jit Kakati died during the pendency of the Criminal Appeal before this Court and the appeal filed by him abated. The acquittal of the Appellants under Section 376 (2) (g) was confirmed by the High Court which remains G unchallenged. The point that falls for our consideration is whether the conviction of the Appellants by the High Court under Section 302, 201 read with 34 IPC is justified. The High Court was conscious of the fact that interference with the judgment of an acquittal by the Trial Couti is unwarranted except when it suffers from the vice of perversity (See: Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 ~ 38). There is AN JAN KUMAR SARMA v. STATE OF ASSAM [L. NAGESWARA RAO, J.] neither a discussion nor finding recorded by the High Court about any A perversity in the judgment of the Trial Court. The only ground on which the High Court reversed the judgment of the Trial Court is that the prosecution proved that the accused and the deceased were last seen together and there was no explanation which led to the presumption of guilt of the Accused.
13. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances c conce(ned 'must' or 'should' and not 'may be' established; (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 probabili~v the act must have been done by the accused. (See: Sharad Birdhicltand Sarda v. State of Maharashtra (1984) 4 SCC 116 ~ 153; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 ~18)
14. Mr.R.Venkataramani, learned Senior Counsel appearing for the State of Assam, supported the judgment of the High Court. He submitted that the deceased was seen along with the accused till 9.00 pm on 27.12.1992 and no explanation was given by them as to what happened thereafter. On the next day, Akhil Bordoloi (Appellant no. 3) misled the family members of the deceased by initially stating that the deceased was with Jit Kakati and will return soon and changing his version in the afternoon by saying that the deceased was not with Jit Kakati. Mr.R.Venkataramani submitted that the incident occurred in a H A tea estate which is sparsely populated with no access to general public. c The railway track is adjacent to the tea estate and there was no possibility of anybody else having committed the crime. He argued that total denial on the part of the accused in their examination under Section 313 Cr. PC is a strong circumstance against the accused.
15. It is no more res integra that suspicion cannot take the place oflegal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of "may be true." But there is a long mental distance between "may be true" and "must be true" and the same divides conjunctures from sure conclusions. (See: Jalrarla/ Das v. State of Orissa, (1991) 3 sec 21, n)
16. It is settled law that inferences drawn by the court have to be on the basis of established facts and not on conjectures. (See: Sujit Biswas v. State of Assam, (2013) 12 SCC 406 ,13-18) The inference that was drawn by the High Court that the death was caused on D 28.12.1992 within the time of 48 hours as mentioned in the post mortem report is not correct. The post mortem examination was conducted on 30.12.1992 at 12:00 noon and it was opined by PW-11 that the death occurred 24 to 48 hours prior to the time of post mortem examination. Even ifthe time is stretched to the maximum of 48 hours, the death was after 12:00 noon on 28.12.1992. The deceased was in the company of the accused till 9:00 pm on 27 .12.1992. The inference drawn by the High Court that the accused have killed the deceased on 28.12.1992 in the night time and thrown the body on the railway track is not on the basis of any proved facts. The Trial Court is right in holding that there is no evidence on record to show that the deceased was with the accused after 12:00 noon on 28.12.1992.
17. The prosecution relied upon nine circumstances to prove the charges against all the accused. PW-11 who conducted the Autopsy opined that the death of the victim was due to the ante mortem incised wound found on the skull which could have been caused by Material G Exhibit 3 (khukri). We are in agreement with the Trial Court that the recovery of the khukri was not supported by any independent witnesses. The prosecution has also failed to prove that there were blood stains on the said khukri. The blood stains found in the bathroom of bungalow No. 17 were sent for examination which resulted in a negative report. The H above circumstances not being proved would leave only two ANJAN KUMAR SARMA v. STATE OF ASSAM [L. NAGESWARA RAO, J.] circumstances against the Accused which are that the Accused were last seen together with the deceased and the absence of any explanation forthcoming by the Accused.
18. The circumstance oflast seen together cannot by itself form the basis of holding the accused guilty of the offence. In Km1ltaiya Lal v. State of Rajastltan, (2014) 4 SCC 715 this court held that: "12. The circumstance of last seen together does not by itself and necessarily lead tu the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere nun-explanation on the part of the appellant, in our c considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theOIJ' of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the D singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume fi1rther importance on account of absence of proof of motive particularly when it is proved E that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan [(2010) 15 sec 588}. .. In Arjun Marik v. State of Bi/tar, 1994 Supp (2) SCC 372 this court held that: "31.
Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is vet:v shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the on~v circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." c 19. This Court in Bharat v. State ofM.P., (2003) 3 SCC 106, held that the failure of the accused to offer any explanation in his statement under Section 313, Cr.P.C. alone was not sufficierit to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted.
20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:- ''Jt is t1·ue that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accU[;r!d. But in a case like this where the various links as stated abcve have been satisfactorily made out and the circumstances p&int to the appellant as the probable assailant, with reasonable definiteness and .in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afJord a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itse!f be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence. "
21. It is clear from the above thal;in a case where the other links have been satisfactorily made out and the circumstances point to the G guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only cir.cumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are ANJAN KUMAR SARMA v. STATE OF ASSAM [L. NAGESWARA RAO, J.] cited by Mr. Venkataramani do not take a different view and, thus, need A not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Tltakran, (2007) 3 SCC 755 in support of his submission that the circumstance oflast seen together would be a relevant circumstance in a case where there was no possibility of any other persons ' meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period.
It was held in the above judgment as under:- "34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guil~v of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being 11'ith the deceased could completely be n1led out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against c the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected mere(v because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long G duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibiliry of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. in the .'ntervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by s.1owing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a rdative~v wider time gap would not affect the prosecution cast. " As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen C together along with the absence of satisfactory explanation ate not sufficient for convicting the accused. Therefore the findings recorded . in the above judgment are not applicable to the facts of this case.
22. Due to the lack of chain of circlims)ances which lead to the only hypothesis of guilt against the accused, we set aside the judgment D of the High Court and acquit the Appellants of the charges of Section 302, 20 I read with 34 IPC. The Appellants ,are directed to be .;et at liberty forthwith, if not required in any other c~se.
23. The Appeal is accordingly allowed. ~ Nidhi Jain Appeal allowed.