Crl.A. 15/2004 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B.LOKUR HON’BLE MR JUSTICE A.K. GOSWAMI (MADAN B. LOKUR, CJ) This appeal is directed against the judgment and sentence dated 29-9-200 3 passed by the learned Sessions Judge, Morigaon in Sessions Case No.24/2003 (GR Case No.6/02). 2. The origin of this case lies in the First Information Report (FIR) lodge d on 2-1-2002 by Nagen Pal, brother of the deceased. In his report, Nagen Das st ated that on 1-1-2002 his brother Niranjan Pal had gone to Gegera along with som e others, that is, Mantu Das, Habial Das, Subodh Sarkar and Dhanai Das for a pic nic. Though the four friends of Niranjan Pal returned home the same evening, he did not come back. The next morning (on 2-1-2002) the informant came to know fro m some wood cutters that the dead body of Niranjan Pal was found in the Gegera f orest. In the report given by him, Nagen Das stated that he suspected that Mantu Das, Habial Das, Subodh Sarkar and Dhanai Das had killed Niranjan Pal. 3. It is also stated in the FIR that the Village Defence Party (VDP) person nel had, in the meanwhile, apprehended the four suspects and handed them over to the Police Out Post. 4. On receipt of the FIR, the police began their investigations and ultimat ely filed a charge sheet accusing four persons aforementioned of having committe d the murder of Niranjan Pal and of destroying evidence by throwing his dead bod y in the middle of the jungle without any intimation to his family. All the accu sed persons pleaded not guilty and the matter was set down for trial. 5. The prosecution examined as many as seven witnesses and the mother of Ni ranjan Pal appeared in the witness box as a Court Witness. 6. On the evidence on record, the learned Sessions Judge concluded that all the four accused had murdered Niranjan Pal and accordingly they were sentenced to undergo rigorous imprisonment for life. With regard to the offence of destruc tion of evidence under Section 201 read with Section 34 of the IPC, the learned Sessions Judge found the accused not guilty. 7. We have gone through the entire material on record with the assistance o f learned counsel for the appellants as well as the learned Public Prosecutor an d are of the opinion that no clear case of conviction has been made out against the accused persons. 8. PW-1 Dr Romendra Kr Pathak is the doctor who had examined the dead body of Niranjan Pal, aged about 30 years. He found that the deceased had suffered so me abrasions and a bruise and that the 11th and 12th ribs on the left side of hi s chest were fractured. The major injury suffered by the deceased was laceration with rupture of the anterior surface of the spleen and his death was due to hae morrhage and shock caused by the rupture. There is nothing on record from the ev idence of this witness to show the approximate time of death of Niranjan Pal. 9. PW-2 Uddhav Ch Pal and PW-3 Subanta Pal are the cousins of the deceased. They are not eye witnesses to the alleged crime. They met Subodh Sarkar and Ma ntu Das on the evening of 1-1-2002 and learnt from them that Niranjan Pal had go ne to the house of his friend to spend the night over there. It is only on the n ext day (on 2-1-2002) that they learnt that Niranjan Pal had died and that his b ody was discovered by two persons who had gone to the jungle to collect firewood . 10. According to PW-2 Uddhav Ch Pal when the news of the death of Niranjan P al was received, the villagers and VDP personnel searched for Subodh Sarkar and Mantu Das and they were found in the house of Habial Das. The police was given t his information and it appears that the accused persons were then apprehended. P W-2 Uddhav Das mentions that he had heard from Smti Tipdoi Pal (mother of Niranj an Pal) that he (Niranjan Pal) had gone for a picnic with the accused persons. H e had no personal knowledge in this regard. The deposition of PW-3 Subanta Pal i s more or less on the same lines as that of PW-2 Uddhav Das. 11. PW-4 Kalyan Dutta is a formal witness in the sense that he witnessed the inquest proceedings and therefore it is not necessary to deal with his evidence . 12. PW-5 Nagen Pal is the brother of the deceased Niranjan Pal and is the in formant who lodged the FIR. He says that on 1-1-2002 at about 8 a.m. Subodh Sark ar came to his house along with Habial Das and Mantu Das. They took Niranjan Pal along with them and later when he asked his mother Tipdoi Pal she told him that Niranjan Pal had gone away for a picnic. Since Niranjan Pal did not return that evening, he went along with his mother to search for him. They met Mantu and Su bodh Sarkar and were told that Niranjan Pal had decided to spend the night with a friend at Gegera. It is only the next day (on 2-1-2002) that he came to know t hat Niranjan Pal’s body was discovered by some woodcutters of the neighbouring a rea. The VDP personnel were informed and the body of Niranjan Pal was located an d the police were informed. 13. This witness further says that he went to the spot where the dead body w as found and when the corpse of Niranjan Pal was brought, they saw Subodh Sarkar , Habial Das and Mantu Das. On being noticed they all went to Habial Das’ house and closed the door. Since Dhanai @ Dhanti had also gone with all of them for th e picnic, an attempt was made to locate him but he fled away. Later on the Shant i Committee of the area asked the mother of Dhanai Das @ Dhanti to produce him, which she did. 14. PW-6 Bishan Bordoloi was one of those who had seen the dead body of Nira njan Pal but it is not clear from his evidence whether he was a member of the VD P personnel or not. In any event this witness turned hostile and denied having m ade any statement before the police during the course of investigation. Accordin g to the prosecution, he stated during investigations that he had seen an alterc ation between Niranjan Pal on the one hand and Mantu Das, Habial Das, Dhanai Das @ Dhanti and Subodh Sarkar. 15. PW-7 Sachin Sarmah is the Investigating Officer and he confirms the broa d facts of the case. He says in his deposition that he had interrogated the acc used persons and recorded their statements and all of them had admitted the guil t but he did not make any prayer for recording their confessional statement. He confirms that the dead body of Niranjan Pal was found in Gegera forest and, acco rding to him, that is the place of occurrence of the alleged crime. 16. The mother of Niranjan Pal, that is, Tipdoi Pal appeared in the witness box as CW-1. She confirms that on 1-1-2002 Subodh Sarkar came to her house along with Mantu Das, Habial Das and Dhanai Das and that Niranjan Pal went along with them for a picnic. Since he did not return in the evening, she and Nagen Pal we nt to look for him when they met Subodh Sarkar and Mantu. They were informed tha t Niranjan Pal had met a friend and went away with him. It is only the next morn ing that she was informed that the dead body of Niranjan Pal was found in the ju ngle. With the help of the Mohila Samity, the police then apprehended Subodh Sar kar, Habial Das, Mantu Das and Dhanai Das. 17. The statement of all the accused persons was recorded under Section 313 of the CrPC and they denied any involvement in the death of Niranjan Pal. 18. As is clear from the evidence placed on record, this is entirely a case based on the last seen theory propounded by the prosecution. Admittedly Niranj an Pal was last seen with the four accused persons, all of whom had gone for a p icnic at Gegera. What happened over there is not very clear. There are two possi bilities - either Niranjan Pal went away with his friend or that some sort of a scuffle took place between Niranjan Pal and the accused. This scuffle resulted i n a few abrasions and bruises on the person of Niranjan Pal, along with broken r ibs and a ruptured spleen. It is the rupture of the spleen that caused his death . 19. The Investigating Officer states in his evidence that PW-6 Bishan Bordol oi told him that a quarrel had taken place in Gegera between Niranjan Pal, Mantu Das, Subodh Sarkar and Dhanai Das and it is consequent to that quarrel that Nir anjan Pal was assaulted. Bishan Bordoloi turned hostile in the witness box and d enied the statement allegedly made by him to the Investigating Officer. Even oth erwise, it is difficult to accept the theory put forward by the Investigating Of ficer that all the four accused persons assaulted Niranjan Pal. Considering the nature of injuries, it appears that Niranjan Pal could not have been assaulted b y all the four accused persons. Most of the injuries, apart from the fracture of the ribs, are of a minor nature and it is possible to accept the view that a sc uffle did take place and that during the scuffle, may be between Niranjan Pal an d some others, the spleen of Niranjan Pal got ruptured. 20. As can be seen from the evidence on record, the case of the prosecution is based on circumstantial evidence and the last seen theory. 21. The Supreme Court has said in Babu v. State of Kerala, (2010) 9 SCC 189 in paragraph 22 of the Report that in a case of circumstantial evidence the foll owing factors need to be established: 22. In Krishnan v. State (2008) 15 SCC 430 this Court after considering a large number of its earlier judgments observed as follows: (SCC p.435, para 15) 15. & This Court in a series of decisions has consistently held that when a cas e rests upon circumstantial evidence, such evidence must satisfy the following t ests: (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 definite tendency unerringly pointing towa rds 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 (iv) 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 t he accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351) 22. There is no doubt that Niranjan Pal was last seen with the four accused persons and that they had all gone to Gegera. What transpired thereafter is not at all clear. On the applicability of the last seen theory, the Supreme Court had this to say in Om Prakash v. Ashwani Kumar Bassi, (2010) 9 SCC 183: 8. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish, (2005) 3 SCC 114, it wa s noted as follows: (SCC p.123, para 22) 22. The last-seen theory comes into play where the time gap between the point o f time when the accused and the deceased were last seen alive and when the decea sed is found dead is so small that possibility of any person other than the accu sed being the author of the crime becomes impossible. It would be difficult in s ome cases to positively establish that the deceased was last seen with the accus ed when there is a long gap and possibility of other persons coming in between e xists. In the absence of any other positive evidence to conclude that the accuse d and the deceased were last seen together, it would be hazardous to come to a c onclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in add ition to the evidence of PW 2. 9. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 it was not ed as follows: (SCC p. 181, para 27) 27. The last-seen theory, furthermore, comes into play where the time gap betwe en the point of time when the accused and the deceased were last seen alive and 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. Even in such a ca se the courts should look for some corroboration. As noted above, it does appear that Niranjan Pal had some scuffle - but whether it was with the accused persons or his other friend is not clear. The time of d eath, in such a case, is quite important but there is nothing on record to show the approximate time of death of Niranjan Pal. 23. On the basis of the circumstances available on record, we cannot presume that Niranjan Pal died during the day on 1-1-2002 after a scuffle with the accu sed persons or later in the evening in a scuffle with his other friend. The circ umstantial evidence and the last seen theory do not unerringly lead to the concl usion that the accused were the only persons who could have caused the death of Niranjan Pal. We do not have even the approximate time of death of Niranjan Pal to hazard any guess. Therefore, the possibility that the other friend of Niranja n Pal may have caused his death (given the nature of injuries) cannot be ruled o ut. In any event, whoever had a scuffle with Niranjan Pal, they (or he) certain ly did not intend it to be so violent as to cause his death. 24. The fact that the accused acted somewhat suspiciously, as it appears fro m the evidence on record, does not lead to any conclusion that they had caused t he death of Niranjan Pal. In Pannayar v. State of T.N., (2009) 9 SCC 152 the Sup reme Court has noted that The absence of motive in a case which depended on circumstantial evidence is mo re favourable to the defence. On the facts of the present case, no motive is established or even suggested as to why the accused would want to cause the death of Niranjan Pal. This is a fact or that must go in their favour. 25. Under the circumstances, we are inclined to give the benefit of doubt to the accused persons and hold that they did not murder Niranjan Pal. There is al so no conclusive evidence that they and they alone could have caused his death. We may only observe that both the investigation and the prosecution of the case have been pretty casual leading to the present situation. 26. The appeal is allowed and the appellants are acquitted of the alleged cr ime of murdering Niranjan Pal. 27. The Trial Court Records be sent back immediately.