Crl.A. 99/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B.LOKUR HON’BLE MRS. JUSTICE ANIMA HAZARIKA (Madan B. Lokur, CJ) The appellants are aggrieved by their conviction for murder under Sectio n 302 read with Section 34 of the IPC and the consequent sentence of imprisonmen t for life awarded by the learned Additional Sessions Judge (FTC), Barpeta in Se ssions Case No.51/07, decided on 5.6.2009. 2. In our opinion, the conviction is unjustified and accordingly we set it aside. 3. A First Information Report was recorded on the basis of a complaint made by Dilowar Hussain in which it was stated that his son Md. Jaimul Haque, aged a bout 14 years was missing from around 6.00 p.m. on 5.2.2005 when he had gone to the shop of Md. Janes Ali (appellant No. 2) to buy a match-box. Despite a franti c search, Jaimul Haque could not be located and at about 11.00 a.m. on 6.2.2005 his dead body was found in an agricultural field at Maralartari Village. Three p ersons named in the First Information Report, that is, Md. Shah Alam (appellant No. 1), Md. Janes Ali (appellant No. 2) and Md. Zeherul Ali (acquitted) were sus pected to have killed Jaimul Haque. 4. After investigations were concluded by the police authorities and a repo rt filed, the following charges were framed against the three accused:- That you on 5/2/05 after 6 PM at Maralartari Village under Barpeta P.S. in fur therance of your common intention you did commit murder intentionally causing de ath of informant’s son Jaimul Haque and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code and within my cognizance. And I he reby direct that you be tried by the said Court on the said charges U/S 302/34 I PC. The accused pleaded not guilty and claimed trial. Facts: 5. We find from the record that the prosecution examined as many as nine wi tnesses. Learned counsels for the parties have taken us through the depositions of these witnesses. At the outset, we may state that there was no eye witness to the alleged murder. The entire case of the prosecution is based on circumstanti al evidence and learned counsel for the State sought to rely on what he describe d as the last seen theory. Viewed in this light, the depositions of PW-2 to PW -7 are really of little or no significance - the sum and substance of their evid ence being that they had seen the dead body of Jaimul Haque at some point of tim e or that they were witnesses to the seizure of the clothes and sandals of the d eceased. PW-4 and PW-5 were said to have informed the Investigating Officer duri ng the course of investigation that they suspected the appellants of having murd ered Jaimul Haque but during the course of trial, they turned hostile and denied that they had made any such statement. In our opinion, this is of not much cons equence because in the First Information Report lodged by Dilowar Hussain he had specifically mentioned that he suspected the appellants of having committed the crime. 6. The only material evidence is that of PW-1 (Dilowar Hussain) and PW-8 (t he Investigating Officer). PW-9 is the doctor who conducted the post-mortem exam ination of the dead body but nothing substantial transpires from his deposition. Importantly, he does not indicate the approximate time of death, which is neces sary for establishing the last seen theory. 7. PW-1 Dilowar Hussain stated that appellants were his relatives and they had come to his house in the evening at about 6.00 p.m. and wanted to take Jaimu l Haque out with them. He allowed Jaimul Haque to go with the appellants since t hey were members of the family. While Jaimul Haque was going out with them, Dilo war Hussain requested him to purchase a matchbox apparently from the shop owned by Janes Ali (appellant No. 2). This is when Dilowar Hussain last saw Jaimul Haq ue alive. 8. When Jaimul Haque did not return home till about 9.00 p.m. Dilowar Hussa in went to the residence of both the appellants to enquire about the whereabouts of Jaimul Haque but he was told that he (Jaimul Haque) had gone to attend a fun ction. When Jaimul Haque did not return even at night, Dilowar Hussain again wen t to the house of both the appellants the next morning, when he was told that Ja imul Haque had not accompanied them. Thereafter, a search was conducted and at a bout 11.00 a.m. the dead body of Jaimul Haque was found. 9. In his cross-examination, Dilowar Hussain (PW-1) stated that on earlier occasions also Jaimul Haque had gone to the shop of Janes Ali and both the appel lants frequently visited his house. This part of the cross-examination has right ly been relied upon by learned counsel for the appellants to submit that no case of enmity or personal grudge has been made out against the appellants and that there is no hint of any motive and absolutely no reason for them to have killed Jaimul Haque. 10. Insofar as the Investigating Officer is concerned, he stated that apart from the suspicion voiced by Dilowar Hussain (PW-1), PW-4 and PW-5 had also info rmed him that they suspected the appellants of having killed Jaimul Haque appare ntly because of a personal grudge. That the appellants had a grudge, either agai nst Dilowar Hussain or against Jaimul Haque, was not even the allegation made by Dilowar Hussain. Even otherwise, nothing has been shown to us from the record t hat the appellants bore a grudge against Dilowar Hussain or against Jaimul Haque . In any case, in his cross examination the Investigating Officer denied that PW -4 and PW-5 had stated that Jaimul Haque was killed as a result of any personal grudge. In the circumstances, the deposition of the Investigating Officer does n ot make us wiser with regard to who killed Jaimul Haque. 11. On this evidence, the learned Trial Judge found that since Jaimul Haque was last seen with the appellants, since Dilowar Hussain stated in the First Inf ormation Report that he suspected the appellants and since PW-4 and PW-5 also vo iced the same suspicion during the course of the investigation, there was enough circumstantial evidence to convict the appellants. Other than this, no other ba sis has been indicated by the learned Trial Judge in coming to the conclusion th at the appellants committed the crime and that they deserved to be convicted and sentenced to life imprisonment. Last seen theory: 12. The Supreme Court recently held in Niranjan Panja v. State of W.B., (201 0) 6 SCC 525 (paragraph 18 of the Report): Where the prosecution depends upon the theory of last seen together , it is al ways necessary that the prosecution should establish the time of death . Earlier, in a similar vein, the Supreme Court reiterated in Tipparam Prabhakar v . State of A.P., (2009) 13 SCC 534 (in paragraph 16 of the Report) what was stat ed in paragraph 31 in Bodhraj v. State of J&K, (2002) 8 SCC 45: The last-seen theory comes into play where the time gap between the point of ti me when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused w hen there is a long gap and possibility of other persons coming in between exist s. In the absence of any other positive evidence to conclude that the accused an d the deceased were last seen together, it would be hazardous to come to a concl usion of guilt in those cases. As mentioned above, there is no evidence to indicate the time of death of Jaimul Haque. Merely because he was last seen with the appellants at about 6.00 p.m. o n 5.2.2005 and his dead body was found the next day at 11.00 a.m. does not lead to any conclusion, in the absence of any other cogent evidence, that only the ap pellants were responsible for the death of Jaimul Haque. Circumstantial evidence: 13. As regards circumstantial evidence, on which the case of the prosecution is based, the Supreme Court observed in Hanumant Govind Nargundkar v. State of M.P., 1952 SCR 1091: In dealing with circumstantial evidence the rules specially applicable to such e vidence must be borne in mind. In such cases there is always the danger that con jecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge, (1838) 2 Lew 227 where he said: The mind was apt to take a pleasure in adapting circumstances to one another, a nd even in straining them a little, if need be, to force them to form parts of o ne connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to sup ply some little link that is wanting, to take for granted some fact consistent w ith its previous theories and necessary to render them complete. It is well to remember that in cases where the evidence is of a circumstantial n ature, the circumstances from which the conclusion of guilt is to be drawn shoul d in the first instance be fully established, and all the facts so established s hould 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 ot her 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 h ave been done by the accused. This leading decision was followed in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 wherein it was said in paragraph 8 of the Report: It is well settled that the circumstantial evidence in order to sustain the con viction must satisfy three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn, mu st be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing to wards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete tha t there is no escape from the conclusion that within all human probability the c rime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. There is no doubt, from the evidence before us (which we have paraphrased) that none of the ingredients necessary for convicting the appellants on the basis of circumstantial evidence exists. In this context, it is also important to remembe r what the Supreme Court recently said in Vijay Kumar Arora v. State (NCT of Del hi), (2010) 2 SCC 353 (paragraph 16.1 of the Report) to the effect that suspicio n cannot take the place of proof: The law relating to circumstantial evidence is well settled. In dealing with ci rcumstantial evidence, there is always a danger that conjecture or suspicion lin gering on mind may take place of proof. Suspicion, however strong, cannot be all owed to take place of proof and therefore, the court has to be watchful and ensu re that conjectures and suspicions do not take place of legal proof. Conclusion: 14. In view of the law having been laid down by the Supreme Court, we are of the view having heard learned counsel for the parties and having gone through t he entire record of the case, that there is absolutely no material available to convict the appellants. The last seen theory canvassed by learned counsel for the State is not really a mantra that can be used in each and every case where t he deceased is last seen with the person suspected of having committed a crime. Proximity of time and in addition some further evidence must be available to cle arly link the accused with the crime. Such further material should be circumstan ces unerringly pointing to the guilt of the accused. The last seen theory is n ot a stand-alone doctrine as sought to be propounded by learned counsel for the State. 15. There is no doubt that Jaimul Haque had gone with the appellants and was last seen with them. It is also quite clear that they bore no apparent grudge o r enmity against him. In his cross-examination, Dilowar Hussain stated that he w as told by both the appellants that Jaimul Haque went to attend a function and t hat they had not accompanied him to that function. It is quite possible that som ething may have transpired at the function (or soon after), which led to the dea th of Jaimul Haque. The post-mortem report of PW-9 does not indicate the approxi mate time of death of Jaimul Haque. There is also no evidence on record to sugge st that the statement made by the appellants that they did not accompany Jaimul Haque to the function was false, and in the absence of anything to the contrary, it must be assumed that they were not with Jaimul Haque at the function. If tha t be so, it would have been more appropriate for the Investigating Officer to fi nd out further details of the function and the whereabouts of Jaimul Haque, but no such investigation was carried out. In this case, the circumstantial evidence against the appellants is extremely weak and there is nothing to unerringly lin k them with the crime. 16. This is a rather unfortunate case of a young boy having met an untimely death under unpleasant circumstances. But, in the absence of any material to mor e or less conclusively link the appellants with the crime, it would be most unsa fe for us to uphold their conviction. Perhaps, a better investigation may have l ed to a more definite conclusion but unfortunately the Investigating Officer doe s not seem to have taken much trouble and merely proceeded on the suspicions voi ced by Dilowar Hussain and others. 17. Under the circumstances, the appeal is allowed and the conviction is set aside. 18. A free copy of this order be handed over to the appellants by the Regist ry as soon as possible.