# Md. Bani Alam Mazid @ Dhan v. State of Assam

- **Citation:** 2025 INSC 260
- **Court:** Supreme Court of India
- **Decided:** 2025-02-24
- **Case number:** Criminal Appeal No. 1649 of 2011
- **Bench:** Abhay S. Oka, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-bani-alam-mazid-dhan-v-state-of-assam-38307
- **Pages:** 29

## Headnote

In a case where the appellant alongwith a co-accused was
alleged to have kidnapped and murdered the minor daughter of
PW1, the issues for consideration were: (i) Whether the chain of
circumstantial evidence based on which the High Court convicted
the Appellant was complete; (ii) Whether the circumstance of last
seen together can be made the basis of conviction; (iii) Whether
the circumstance of recovery of the dead body following the
Appellant's statement was proof beyond reasonable doubt against
the Appellant; (iv) Whether motive is an important link in a case
based on circumstantial evidence.
Headnotes†
Circumstantial evidence - Prosecution case of kidnapping
and murder based on three circumstances: (a) accusedappellant and victim were last seen together; (b) extrajudicial
confession of appellant; and (c) recovery of dead body - None
of the circumstances were proved, not to speak of proving
the complete chain of circumstances - Conviction by courts
below not justified - Penal Code - ss.366(A)/302/201/34:
Held: The High Court had erred in discarding the circumstance of
extra-judicial confessions made by the appellant before PW Nos.5,
6, 7, 8, 10 and 11 on the ground that those confessions were
made in the presence of the police and thus would be hit by the
provisions of Section 25 of the Evidence Act, 1872 - Therefore,
the High Court disbelieved one of the three circumstances relied
upon by the prosecution as a part of the chain of evidence to
prove the Appellant's guilt - However, the High Court still convicted
the Appellant on the strength of the remaining two pieces of
circumstantial evidence - Therefore, it could not be said that the
* Author
[2025] 2 S.C.R.
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Md. Bani Alam Mazid @ Dhan v. State of Assam
chain of circumstantial evidence was complete and that no other
inference except the guilt of the accused was possible therefrom -
The Appellant therefore was entitled to benefit of doubt, since his
guilt was not established beyond all reasonable doubt. [Paras 23-25]
Circumstantial Evidence - Ramu Appa Mahapatar v. State of
Maharashtra, 2025 INSC 147 - Discussed:
Held: In Ramu Appa Mahapatar v. State of Maharashtra, this Court
dealt with the limitations of an extrajudicial confession which is
one of the instances of circumstantial evidence - In that context,
this Court following the consistent line of judicial precedents held
that circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely
associated with the fact in issue that taken together, they form a
chain of circumstances from which the existence of the principle fact
can be legally inferred or presumed - The chain must be complete
and each fact forming part of the chain must be proved - Where
a case rests on circumstantial evidence, inference of guilt can be
justified only when all the incriminating facts and circumstances
are found to be incompatible with the innocence of the accused
or the guilt of any other person. [Para 22]
Murder - Allegations of - Victim, a minor girl - Circumstance
of last seen together with accused - Inference of guilt - If
can be drawn:
Held: In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715,
this Court held that circumstances of last seen together does not
by itself lead to the inference that the accused committed the
offence - There must be something more than mere non-explanation
on the part of the accused to establish nexus between him and
the crime - In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755,
this Court held that the circumstance of last seen together may
normally be considered to find the accused guilty when the time
gap between when the accused and deceased were last seen
together alive and when the deceased was found dead is so small
that the possibility of any other person being with the deceased
is ruled out - However, it cannot be said that evidence of last
seen together must be rejected merely due to a time gap - If
the prosecution is able

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[2025] 2 S.C.R. 2006 : 2025 INSC 260
Md. Bani Alam Mazid @ Dhan
v.
State of Assam
(Criminal Appeal No. 1649 of 2011)
24 February 2025
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]
Issue for Consideration
In a case where the appellant alongwith a co-accused was
alleged to have kidnapped and murdered the minor daughter of
PW1, the issues for consideration were: (i) Whether the chain of
circumstantial evidence based on which the High Court convicted
the Appellant was complete; (ii) Whether the circumstance of last
seen together can be made the basis of conviction; (iii) Whether
the circumstance of recovery of the dead body following the
Appellant's statement was proof beyond reasonable doubt against
the Appellant; (iv) Whether motive is an important link in a case
based on circumstantial evidence.
Headnotes†
Circumstantial evidence - Prosecution case of kidnapping
and murder based on three circumstances: (a) accusedappellant and victim were last seen together; (b) extrajudicial
confession of appellant; and (c) recovery of dead body - None
of the circumstances were proved, not to speak of proving
the complete chain of circumstances - Conviction by courts
below not justified - Penal Code - ss.366(A)/302/201/34:
Held: The High Court had erred in discarding the circumstance of
extra-judicial confessions made by the appellant before PW Nos.5,
6, 7, 8, 10 and 11 on the ground that those confessions were
made in the presence of the police and thus would be hit by the
provisions of Section 25 of the Evidence Act, 1872 - Therefore,
the High Court disbelieved one of the three circumstances relied
upon by the prosecution as a part of the chain of evidence to
prove the Appellant's guilt - However, the High Court still convicted
the Appellant on the strength of the remaining two pieces of
circumstantial evidence - Therefore, it could not be said that the
* Author
[2025] 2 S.C.R.
2007
Md. Bani Alam Mazid @ Dhan v. State of Assam
chain of circumstantial evidence was complete and that no other
inference except the guilt of the accused was possible therefrom -
The Appellant therefore was entitled to benefit of doubt, since his
guilt was not established beyond all reasonable doubt. [Paras 23-25]
Circumstantial Evidence - Ramu Appa Mahapatar v. State of
Maharashtra, 2025 INSC 147 - Discussed:
Held: In Ramu Appa Mahapatar v. State of Maharashtra, this Court
dealt with the limitations of an extrajudicial confession which is
one of the instances of circumstantial evidence - In that context,
this Court following the consistent line of judicial precedents held
that circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely
associated with the fact in issue that taken together, they form a
chain of circumstances from which the existence of the principle fact
can be legally inferred or presumed - The chain must be complete
and each fact forming part of the chain must be proved - Where
a case rests on circumstantial evidence, inference of guilt can be
justified only when all the incriminating facts and circumstances
are found to be incompatible with the innocence of the accused
or the guilt of any other person. [Para 22]
Murder - Allegations of - Victim, a minor girl - Circumstance
of last seen together with accused - Inference of guilt - If
can be drawn:
Held: In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715,
this Court held that circumstances of last seen together does not
by itself lead to the inference that the accused committed the
offence - There must be something more than mere non-explanation
on the part of the accused to establish nexus between him and
the crime - In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755,
this Court held that the circumstance of last seen together may
normally be considered to find the accused guilty when the time
gap between when the accused and deceased were last seen
together alive and when the deceased was found dead is so small
that the possibility of any other person being with the deceased
is ruled out - However, it cannot be said that evidence of last
seen together must be rejected merely due to a time gap - If
the prosecution is able to lead evidence making the likelihood of
any person other than the accused being the author of the crime
2008
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impossible, then even with a long duration, last seen together can
be considered as part of the chain of circumstances to prove guilt -
In Anjan Kumar Sharma v. State of Assam, (2017) 14 SCC 359,
it was laid down that where all the other links have been made
out satisfactorily and the circumstances point to the guilt of the
accused, the circumstances of last seen together, and absence of
explanation would provide the complete link to the chain - In the
instant case, the evidence of PW-2 and PW-3 clearly shows that
there was considerable time gap between the time the appellant
and the deceased were last seen together alive and the recovery
of the dead body - Therefore, it cannot be said with any degree
of certainty that it was the appellant and the appellant alone who
had committed the offence. [Paras 30-33]
Motive - Recovery of dead body of minor girl - Accusedappellant and deceased were allegedly in love - Role of, in
proving circumstantial evidence - Explained:
Held: In Anwar Ali v. State of Himachal Pradesh, (2020) 10 SCC
166 it was observed that in a case where direct evidence of eye
witness is available, motive loses its importance - But absence of
motive in a case based on circumstantial evidence is a factor that
weighs in favour of the accused - Similarly, in Shivaji Chintappa
Patil v. State of Maharashtra, (2021) 5 SCC 626, it was observed
that in case of circumstantial evidence, motive plays an important
link to complete the chain of events - In Nandu Singh v. State
of M.P., 2022 SCC OnLine SC 1454, it was again observed that
complete absence of motive assumes a different complexion and
such absence definitely weighs in favour of the accused - As in
this case there was not any motive for the Appellant to cause
death of the deceased, the same is another factor that weighs in
favour of the accused. [Paras 48-52]
Confession - In police custody - Evidence Act, 1972 - s.26 -
Scope of - Explained:
Held: According to Section 26 of the Evidence Act, no confession
made by any person while he is in the custody of a police officer
shall be proved as against such person unless it is made in the
immediate presence of the Magistrate - This is an exception to the
absolute bar of Section 25 which declares that no confession made
to a police officer shall be proved as against a person accused of
any offence. [Para 35.1]
[2025] 2 S.C.R.
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Md. Bani Alam Mazid @ Dhan v. State of Assam
Evidence Act, 1872 - s.27 - Scope of - Extra-judicial
confessions of accused-appellant - Discovery of dead body
of minor girl pursuant thereto - Admissibility of:
Held: Section 27 of the Evidence Act is couched in the language of
a proviso and immediately follows Section 26, and has to be read
conjointly with the latter - While Section 26 deals with confession
made by an accused while in custody of police, Section 27 deals
with such information received from the accused which may be
proved - Section 27 provides that when any fact is deposed to as
discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much
of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved - In
Asar Mohammad v. State of Uttar Pradesh, (2019) 12 SCC 253,
this Court held that the word 'fact' occurring in Section 27 of the
Evidence Act is not limited to 'actual physical material object', but
Discovery of fact arises by reason that the information given by the
accused exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place which includes
discovery of the object, the place from which it is discovered and
the knowledge of the accused as to its existence - Applying the
law relating to Section 27 of the Evidence Act, it can be seen that
the circumstances leading to discovery is intrinsically connected
with the circumstance of extra-judicial confessions made by the
appellant and the other co-accused before PW-5, PW-6, PW-7,
PW-8, PW-10 and PW-11 - We have already noted that the High
Court had rejected the circumstance of extra-judicial confessions
as being in-admissible evidence. [Paras 35, 35.2, 38, 39]
Case Law Cited
Nandu Singh v. State of M.P., 2022 SCC Online SC 1454; Ramu
Appa Mahapatar v. State of Maharashtra, 2025 INSC 147 : [2025]
2 SCR 388; State of Goa v. Sanjay Thakran [2007] 3 SCR 507 :
(2007) 3 SCC 755; Kanhaiya Lal v. State of Rajasthan [2014] 3
SCR 744 : (2014) 4 SCC 715; Anjan Kumar Sarma v. State of
Assam, (2017) 14 SCC 359; Vasanta Sampat Dupare v. State
of Maharashtra [2014] 14 SCR 961 : (2015) 1 SCC 253; Asar
Mohammad v. State of Uttar Pradesh [2018] 13 SCR 248 : (2019)
12 SCC 253; Anwar Ali v. State of Himachal Pradesh [2020] 9
SCR 878 : (2020) 10 SCC 166; Shivaji Chintappa Patil v. State of
Maharashtra [2021] 2 SCR 617 : (2021) 5 SCC 626 - relied on.
2010
[2025] 2 S.C.R.
Supreme Court Reports
Madho Singh v. State of Rajasthan (2010) 15 SCC 588 - referred to.
Pulukuri Kottaya v. King-Emperor, AIR 1947 PC 67 - referred to.
List of Acts
Evidence Act, 1872; Penal Code, 1860; Code of Criminal Procedure,
1973.
List of Keywords
Circumstantial Evidence; Discovery; Chain of Events; Last seen
theory; Minor girl; Confession; Police custody.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1649 of 2011
From the Judgment and Order dated 11.08.2010 of the High Court
of Guwahati, Assam in CRLA No. 88 of 2007
Appearances for Parties
Advs. for the Appellant:
Azim H.Laskar, Bikas Kar Gupta, Ms. Bebarati Sadhu, Harsh
Verma, Abhijit Sengupta.
Advs. for the Respondent:
Mrs. Diksha Rai, Arijit Dey, Apurva Sachdev, Ishaan Kapoor,
Shuvodeep Roy.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
This criminal appeal by special leave is directed against the judgment
and order dated 11.08.2010 passed by the Gauhati High Court at
Guwahati (High Court) dismissing Criminal Appeal No. 88/2007 filed
by the appellant.
2.
Criminal Appeal No. 88/2007 was filed by the appellant against
the judgment and order dated 20.03.2007 passed by the learned
Sessions Judge, Kamrup in Sessions Case No. 16(K)/2005 whereby
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Md. Bani Alam Mazid @ Dhan v. State of Assam
the appellant was convicted under Sections 366(A)/302/201/34 of the
Indian Penal Code, 1860 (IPC). Appellant was sentenced to suffer
rigorous imprisonment (RI) for 5 years alongwith a fine of Rs. 3,000.00
with a default stipulation for the offence under Section 366(A) IPC.
For the offence under Section 201 IPC, he was sentenced to undergo
RI for 5 years alongwith a fine of Rs. 3,000.00, again with a default
stipulation. Appellant was also sentenced to undergo RI for life and
to pay a fine of Rs. 3,000.00 with a default stipulation for the offence
under Section 302 IPC.
3.
Prosecution case in brief is that on 26.08.2003 at about 02:00 PM,
PW-1 Amzad Ali lodged a first information before the Hajo Police
Station stating that on 22.08.2003 at about 03:30 PM, appellant
alongwith Mohd. Jahangir Ali (co-accused) had kidnapped his minor
daughter Marjina Begum (16 years). The first informant alleged that
his daughter had taken away Rs. 60,000.00 in cash from his house.
He stated that though there was a search for the girl, she could not
be traced out. It was further mentioned that one Aklima Bibi, mother
of the appellant Bani Alam Majid, and one Farid Ali, husband of
the elder sister of the appellant, came and told the first informant
that the appellant had kidnapped his daughter and had kept her at
Mukalmuwa with the intention of marrying her. First informant stated
that the aforesaid two persons had assured him that their marriage
would be arranged and, therefore, requested him and his family
members not to lodge any complaint before the police. However, as
there was no trace of the missing girl for about four days, the FIR
in question was lodged.
3.1. On the basis of the aforesaid first information, Hajo P.S. Case
No. 131/2003 came to be registered under Sections 366(A)/34
IPC. Appellant and co-accused Jahangir Ali were arrested. In
the course of investigation, the dead body of the victim girl was
found. At the conclusion of the investigation chargesheet was
submitted against both the accused persons under Sections
366(A)/302/201/34 IPC. The offences under Sections 366(A)
and 302 IPC being exclusively triable by the Court of Sessions,
the case was committed to the Court of Sessions at Kamrup,
Guwahati.
3.2. Trial Court framed charge against the accused persons under
the aforesaid provisions to which they pleaded not guilty and
claimed to be tried. To prove its case, prosecution examined
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[2025] 2 S.C.R.
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as many as 14 witnesses. Co-accused Jahangir Ali examined
himself as DW-1. After the evidence was recorded, statement
of the accused persons including that of the appellant were
recorded under Section 313 of the Code of Criminal Procedure,
1973 (Cr.P.C.). At the conclusion of the trial, learned Sessions
Judge convicted and sentenced the appellant as well as the
co-accused as above.
4.
Aggrieved by the aforesaid conviction and sentence, both the
accused persons preferred separate appeals before the High
Court. While appeal of the appellant was registered as Criminal
Appeal No. 88/2007, the other appeal was registered as Criminal
Appeal No. 82(J)(2007). High Court vide the judgment and order
dated 11.08.2010 (impugned judgment) set aside the conviction of
the accused persons including that of the appellant under Section
366(A) IPC but affirmed their conviction under Sections 302/201/34
IPC. Sentences imposed for commission of the aforesaid offences
by the Court of Sessions were maintained. The related appeals were
accordingly dismissed.
5.
Mr. Ajim H. Laskar, learned counsel for the appellant submits that
it is a case of circumstantial evidence. High Court while discarding
the extra-judicial confessions of the appellant made before some of
the witnesses on the ground that those were made in the presence
of the police, however held that the other two circumstances of
last seen together and leading to discovery were proved against
the appellant and on such basis, convicted the appellant under
Section 302 IPC. On the theory of last seen together, one of the two
circumstances, learned counsel submits that though PW-2 is stated
to have seen the two together, she herself deposed that there was
neither any coercion by the appellant nor any force applied by him
while taking away the victim in the vehicle. PW-2 neither resisted
nor raised alarm. Though the victim remained untraceable thereafter
for several days, she again did not raise any alarm. He submits that
High Court had accepted that there was no force applied by the
appellant on the victim girl and that she had gone with him on her
own volition. Because of this, conviction of the appellant by the trial
court under Section 366(A) IPC was set aside. It has come on record
from the evidence tendered that the deceased was last seen alive
together with the appellant on 22.08.2003. Dead body was allegedly
recovered on 27.08.2003 after lodging of FIR on 26.08.2003. If this
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Md. Bani Alam Mazid @ Dhan v. State of Assam
be the position, no credence can be given to the theory of last seen
together to come to any definitive conclusion that it was the appellant
and the appellant alone who had killed the victim girl.
5.1. Learned counsel submits that appellant had no reason or motive
to cause the death of the victim girl. It has come on record that
appellant and the victim girl were in a romantic relationship
and that the victim girl had gone with the appellant on her own
volition. Even the mother and brother-in-law of the appellant
were reported to have told PW-1, father of the victim girl, that
the two of them would get married. Therefore, there cannot be
any conceivable reason or motive for the appellant to commit
murder of the victim girl.
5.2. He submits that in a case of circumstantial evidence, motive
plays an important role. It is an important link to complete the
chain of circumstances. In the absence of any motive, the
chain of circumstances is not complete in which case guilt of
the accused cannot be said to be proved beyond all reasonable
doubt. In support of this contention, learned counsel for the
appellant has referred to a decision of this Court in Nandu
Singh Vs. State of M.P.1
5.3. Mr. Laskar, learned counsel for the appellant, also submits that
there was no recovery of the cash amount of Rs. 60,000.00
allegedly taken away by the victim girl from her house as she
went with the appellant. In fact, no investigation was carried
out by the police in this direction and consequently, no recovery
of cash was made.
5.4. In so far the theory of leading to discovery is concerned, the
same also does not inspire any confidence in as much as it
was an extension of the extra-judicial confessions made by
the appellant before some of the prosecution witnesses which
were not accepted by the High Court since those were made in
the police station and in front of the police while the appellant
was under police custody. The extra-judicial confessions and
the theory of leading to discovery are intrinsically connected;
rather those are intertwined. If the extra-judicial confessions were
1
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2014
[2025] 2 S.C.R.
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discarded by the court as an inadmissible piece of evidence,
by the same logic, the theory of leading to discovery cannot
be accepted as a valid piece of evidence.
5.5. Learned counsel thus submits that there is grave doubt about
the veracity of the prosecution case. Not to speak of a complete
chain of circumstances, even the two instances of circumstantial
evidence i.e. theory of last seen together and leading to
discovery, cannot be said to have been proved against the
appellant by the prosecution witnesses beyond all reasonable
doubt. As a matter of fact, the prosecution case has to fall
as one of the circumstances i.e. extra-judicial confession has
been disbelieved by the High Court. Therefore, the chain is not
complete. In such circumstances, conviction of the appellant
becomes wholly untenable. Consequently, the appellant is
entitled to the benefit of doubt and acquittal.
6.
Per contra, learned counsel for the State submits that both the trial
court and the High Court have correctly convicted the appellant
under Sections 302/201/34 IPC. The evidence on record clearly and
correctly proves the commission of offence by the appellant.
6.1. He submits that the evidence on record reveals that from the
time the victim girl went with the appellant till her death, she
was in the custody of the appellant. High Court had rightly
observed that the prosecution cannot be asked to explain what
had happened after the victim girl left with the appellant. It is for
the appellant to explain the same, which the appellant failed to
do. From all the circumstances put together, the only inference
that can be drawn is that it is the appellant and none else who
had committed the crime.
6.2. Learned counsel for the State submits that although the extrajudicial confessions of the appellant made before PWs - 5, 6,
7, 10 and 11 would be hit by the provisions of Sections 25 and
26 of the Evidence Act, 1872 ('the Evidence Act' hereinafter),
nonetheless, the statement of the appellant leading to discovery
of the dead body of the victim girl would be an admissible piece
of evidence under Section 27 of the Evidence Act.
6.3. FIR was lodged on 26.08.2004 and the dead body was recovered
the following day. Though there is a time gap between the time
the two of them were last seen together and the recovery of
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Md. Bani Alam Mazid @ Dhan v. State of Assam
the dead body, the same would not be fatal to the prosecution
case. Merely because there is a time gap between the time
when the victim and the accused were last seen alive together
and recovery of the dead body, that would not establish the
innocence of the appellant. The accused has a duty and
obligation to prove his innocence before the court and he cannot
be allowed to remain silent once the prosecution discharges
the initial burden.
6.4. Learned counsel for the State finally submits that there is no
error or infirmity in the conviction of the appellant and, hence,
no interference is called for. Therefore, the appeal should be
dismissed.
7.
Submissions made by learned counsel for the parties have received
the due consideration of the court.
8.
Let us first examine the evidence tendered by the prosecution
witnesses. Amzad Ali is PW-1. He is the father of the deceased. He
identified the accused-appellant in court. In his examination-in-chief,
he stated that about 2 years back his daughter Marjina was walking
along the road on foot with another girl. At that time, appellant and
the other accused Jahangir forcefully took his daughter away and
put her in a Tata Sumo vehicle. The incident happened around 03:30
PM. When he returned home, he came to know that the two accused
persons had kidnapped his daughter. Though he searched for her,
he was unsuccessful. 2/3 days after the incident, PW-1 met the
other accused Jahangir. On being asked, Jahangir told PW-1 that
his daughter was in Mukalmuwa and that he need not worry about
her. At that time, Farid (husband of elder sister of the appellant) was
present. Farid told PW-1 not to worry; he would bring the girl and
arrange her marriage with the appellant. PW-1 further deposed that
his daughter had taken away Rs. 60,000.00 in cash from his house.
He stated that he lodged the first information before the police since
his daughter was missing. Jahangir (accused No. 2) told PW-1 that
they had killed his daughter and thrown her body away at Pandu.
According to PW-1, when he alongwith the police went there, they
found his daughter's body lying on the railway track at Pandu. He
saw injuries on her head. Delay in lodging the first information was
attributed to remaining busy searching for his daughter.
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8.1. On behalf of both the accused persons, PW-1 was crossexamined. In his cross-examination, he stated that the dead body
was recovered on the day following lodging of first information.
He saw the dead body of his daughter at Pandu around 5 PM
in the evening. Junu Begum was the name of his daughter's
friend; they were classmates reading in the same school. He
disclosed that the first information was written by Samsul (PW-6).
8.2. PW-1 further stated that his daughter Marjina had a love
affair with the appellant since last 5 years. At the time of the
occurrence, the daughter was about 16 years of age. He came
to know about the incident from Junu Begum. He denied the
suggestion that the two accused persons did not kidnap his
daughter and that they did not kill her, further denying the
suggestion that Junu Begum did not tell him that the accused
persons had kidnapped his daughter.
8.3. While PW-1 admitted that the first information was written by
Samsul (PW-6), he forgot whether PW-6 had read over the first
information to him after writing the same. He further stated that
he did not remember what was written in the first information.
9.
PW-2 is Junu Begum. In her examination-in-chief, she stated that
deceased Marjina @ Kali was her friend. They studied together. She
further stated that she knew the appellant and identified him in the
court. At about 3'o clock in the afternoon two years back, she and
Marjina were walking along the road to the house of her elder sister
Nabira. At that time, the two accused persons came in a Tata Sumo
vehicle and forcefully took Marjina away. PW-2 deposed that before
the incident, Marjina had told her that she loved the appellant. She
further deposed that she came to know 4 days after the occurrence
that the two accused persons had killed Marjina and left her body
alone. Later, she saw Marjina's dead body in the house of PW-1.
9.1. PW-2 was cross-examined on behalf of both the accused
persons. In her cross-examination, PW-2 stated that appellant
had come first and had got Marjina into the car. The other
accused person Jahangir was sitting in the vehicle. There were
a few passengers also in the vehicle. She stated in her crossexamination that she did not raise any hue and cry but she
informed the husband of appellant's elder sister Farid about
the incident. PW-2 was categorical in stating that Marjina had
left on her own accord.
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9.2. PW-2 further stated in her cross-examination that when the Tata
Sumo vehicle stopped, Marjina got into the said vehicle. Marjina
did not carry any bag. She stated that she did not notice who
were there in the vehicle.
10. PW-3 is Minuwara Begum. From her testimony, it is not discernible
as to her relationship with the deceased or how she was presented
as a witness by the prosecution. In her examination-in-chief, she
stated that she knew the accused as well as the deceased. She
identified the two accused persons in the court. She further stated
that appellant had a love affair with the deceased. However, deceased
had told her that if she did not go with him, she would be dead.
Deceased had further told PW-3 that appellant wanted to take her
to Andhra Pradesh for which she had to manage some money.
Father of the deceased had collected an amount of Rs. 60,000.00
by selling his land. On the date of occurrence, Marjina took away
the money with her. PW-3 stated that she had seen the appellant
going behind Marjina to the vehicle. Appellant's mother Aklima and
his brother-in-law Farid had informed family members of Marjina
that they would arrange the marriage of the appellant with Marjina
and, therefore, they should not search for her. Later on, she came
to know that appellant had killed Marjina.
10.1. In her cross-examination, PW-3 stated that she did not see
any money in the hands of Marjina. According to her, appellant
had pulled Marjina towards the vehicle though she did not hear
Marjina raise any hue and cry. She however admitted that
she did not inform anyone about the occurrence immediately.
A meeting of villagers called 'mel' was held at night in the
residence of Marjina. As PW-3 was invited, she had gone there.
Influential persons of the village attended the said meeting.
11. Mother of the deceased Bulbuli Begum is PW-4. She identified the
two accused persons in the court. She stated that about two years
back, her daughter Marjina had gone missing from home. PW-2 had
informed her that the appellant had taken Marjina away. Though they
searched for their daughter, she could not be traced out. Appellant's
mother Aklima and brother-in-law Farid came to their house and told
them that they should not search for their daughter and that they would
arrange the marriage of their daughter Marjina with the appellant.
She stated that accused Jahangir told her that appellant had killed
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his daughter Marjina. Later on, Marjina's dead body was recovered
from Pandu. PW-4 stated that she saw injuries all over the dead
body. Marjina was about 16 years of age at the time of occurrence.
Marjina had taken away Rs. 60,000.00 in cash which PW-4 stated
that she had kept it for purchasing some land. She acknowledged
that before the occurrence, appellant and Marjina were in love.
11.1. In her cross-examination, PW-4 stated that on the day of
occurrence, Marjina left home after her meal to go to the
residence of her elder sister Alima. A good number of village
people were present at the time when mother and brother-inlaw of the appellant gave the proposal of marriage. She denied
the suggestion that PW-2 had not informed them about the
occurrence and that Jahangir (accused No. 2) had not come
and informed them of appellant killing Marjina. She further
denied the suggestion that the two accused persons had not
kidnapped his daughter and had not killed her.
12. PW-5 is Anwar Hussain. In his cross-examination, PW-5 stated
that he knew the deceased Marjina Begum. He also knew the two
accused persons whom he identified in court. In his evidence in
chief, PW-5 stated that on 27.08.2003, police took the two accused
persons to Hajo Police Station under arrest. According to PW-5,
he alongwith some 40 persons from the village went to the police
station. Appellant confessed before them that he had hit Marjina with
a stone as a result of which she became senseless. After that, he
had killed her by strangulating her with his vest. PW-5 stated that
later on they found the dead body of Marjina near the railway track.
He also stated that appellant had concealed the body in a 'pitoni'
which is a marshy place but PW-5 contradicted himself by saying
that he saw the corpse in the police station. However, he added that
appellant loved Marjina and took her away on the day of occurrence.
12.1. In his cross-examination, PW-5 stated that in the police station,
he and the other villagers saw the two accused persons being
taken out from the lockup. Police first interrogated Jahangir and
thereafter the appellant. He admitted that he had not seen the
appellant taking away Marjina. PW-5 denied the suggestion
that appellant did not tell them that he had killed Marjina.
However, he added that police had not interrogated him.
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Md. Bani Alam Mazid @ Dhan v. State of Assam
13. PW-6 is Samsul Haque, the scribe. In his evidence-in-chief, he stated
that he knew Amzad Ali (PW-1). As per version of PW-1, he wrote the
'ejahar' (first information), Ex.-1. He stated that he had read over the
first information to PW-1 and obtained his thumb impression. Police
took him alongwith the accused Jahangir and members of the public
and recovered the dead body near the Pandu railway line. At that
time, appellant was in jail. Police had seized a blood-stained vest
which is Ex.-3. Accused Jahangir had confessed before the police and
PW-6 that he had killed Marjina Begum. However, he contradicted
himself by saying that appellant took the vest of Jahangir and killed
Marjina by hanging her with the vest.
13.1. In his cross-examination, he stated that he was taken to Pandu
in a police vehicle where the dead body was recovered. He
was there alongwith the officer-in-charge of the police station
and 4/5 policemen. There was no magistrate. He had put his
signature on the seizure list in the police station. He admitted
in cross-examination that he did not tell the police that Jahangir
had given his vest by taking it off.
14. PW-7 is Jahidur Rahman. In his examination in chief, he stated that
on hearing the news of Marjina's death, he went to the thana (police
station). There he saw her dead body. He also saw the two accused
persons in the thana. The two accused persons told before the police
that they had killed Marjina by pressing her neck and thereafter had
thrown her body near the railway line. He had heard that the two
accused had kidnapped Marjina 2/3 days before the occurrence.
14.1. In his cross-examination, PW-7 stated that he had not seen
the incident himself. At the time of interrogation of the accused,
he was present alongwith Anowar Hussain and Samsur Ali.
15. PW-8 Mainul Haque stated in his examination in chief that on
27.08.2003, he had gone to the thana where he saw the dead body
of Marjina. He also saw the two accused persons in the thana. When
the police interrogated the two accused persons, they stated that
they had taken the girl to Coochbehar from where they returned and
had been going along the railway line. They had injured Marjina by
hitting her with stones after which they strangulated her with a vest.
15.1. However, in his cross-examination, he stated that he did not
know with whom Marjina had eloped. He had gone to the
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police station on his own accord. In the police station, he saw
the two accused persons in the room of the officer-in-charge.
There were about 30 to 40 people present in the police station
and all of them were in the room of the officer-in-charge.
16. PW-9 Dr. Amarjyoti Patowary had conducted the postmortem
examination of the deceased. As per the postmortem notes, there
were as many as 13 injuries on the face, neck, chest, waist, right
forearm and on the left and right legs. He opined that death was
due to asphyxia as a result of manual strangulation. All the injuries
found on the body of the deceased were ante-mortem, caused by
blunt weapon and homicidal in nature. He also opined that evidence
of recent sexual intercourse was not detected. The deceased was
not pregnant. He had carried out the postmortem examination on
27.08.2003 and opined that approximate time of death was 24 to
36 hours prior to such examination.
17. PW-10 is Abdul Hamid. In his deposition, he stated that he had heard
that accused Bani Alam (appellant) had abducted Marjina Begum who
did not return home. He heard after 4 days that dead body of Marjina
Begum was found lying in a marshy land near the railway track at
Jalukbari. He stated that he had gone to the thana the next day. In
the thana, he found both the accused persons. Accused Bani Alam
(appellant) told PW-10 and others in the thana that after abducting
Marjina, he had pressed her neck. When he found that she was still
alive, he hit her with stones causing her death. Thereafter, he had
thrown her body in a marshy land near the railway track. According
to him, accused Jahangir told them that both the accused persons
had strangulated Marjina with the vest of Bani Alam (appellant).
17.1. In his cross-examination, PW-10 stated that policemen were
present when the two accused persons narrated the incident.
He had gone to the thana in a police vehicle like many others on
being called by the police. Police did not record his statement.
18. Jamser Ali, who is the brother of deceased Marjina, is PW-11. He
stated that he was called to the thana by the police. He went to
the thana alongwith other villagers. In the thana, he saw both the
accused persons. Accused Bani Alam Mazid (appellant) told them
that he had abducted Marjina and had squeezed her throat with a
vest. He also hit her with stones. After that he had concealed the
dead body in a 'pitoni' (marshy land) near Pandu.
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Md. Bani Alam Mazid @ Dhan v. State of Assam
18.1. In his cross-examination, PW-11 stated that the two accused
persons were handcuffed in the police station. Police were
present when the two accused persons made their confessions.
19. The investigating officer deposed as PW-13. In his examination in
chief, he stated that in the course of investigation, the two accused
persons confessed before him that they had killed Marjina and had
kept her dead body near the Pandu railway track under Jalukbari
police station. They led the police accompanied by the circle officer
to the place where the dead body was kept concealed. The circle
officer had conducted inquest over the dead body. He stated that he
had seized a half ganjee (vest) with blood stains, marked as Ex.-3.
19.1. In his cross-examination, PW-13 stated that he had arrested
the two accused persons on 26.08.2003. He did not make
any prayer before the concerned Chief Judicial Magistrate to
get the confessional statements of the accused recorded. He
further admitted that the blood stained ganjee (vest) was not
sent to the Forensic Science Laboratory (FSL) for examination.
20. PW-14 is the circle officer Kamal Kumar Baishya. He stated that on
26.08.2003, he had received the requisition from the officer-in-charge
of Hajo police station to hold inquest over the dead body of Marjina
Begum. He had carried out the inquest in the presence of witnesses.
21. Though the appellant was confronted with the incriminating evidence
against him for recording of his examination under Section 313
Cr.P.C., he stated in response that though he knew the deceased,
he denied all the allegations made against him vis-à-vis, abduction
and murder of Marjina Begum.
22. Before we appreciate the evidence, it will be apposite to briefly advert
to the law relating to circumstantial evidence as this is a case where
conviction is based on circumstantial evidence. In a recent decision
of this Court in Ramu Appa Mahapatar Vs. State of Maharashtra2,
this Court dealt with the limitations of an extra-judicial confession
which is one of the instances of circumstantial evidence. In that
context, this Court following the consistent line of judicial precedents
held that circumstantial evidence is not direct to the point in issue
but consists of evidence of various other facts which are so closely
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associated with the fact in issue that taken together, they form a chain
of circumstances from which the existence of the principle fact can
be legally inferred or presumed. The chain must be complete and
each fact forming part of the chain must be proved. Where a case
rests on circumstantial evidence, inference of guilt can be justified
only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of
any other person. This Court held as under:
16. .......As we know, circumstantial evidence is not
direct to the point in issue but consists of evidence of
various other facts which are so closely associated with
the fact in issue that taken together, they form a chain of
circumstances from which the existence of the principal
fact can be legally inferred or presumed. The chain must
be complete and each fact forming part of the chain must
be proved. It has been consistently laid down by this
Court that where a case rests squarely on circumstantial
evidence, inference of guilt can be justified only when all
the incriminating facts and circumstances are found to
be incompatible with the innocence of the accused or the
guilt of any other person. The circumstances would not
only have to be proved beyond reasonable doubt, those
would also have to be shown to be closely connected
with the principal fact sought to be inferred from those
circumstances. All these circumstances should be complete
and there should be no gap left in the chain of evidence.
The proved circumstances must be consistent only with
the hypothesis of the guilt of the accused and totally
inconsistent with his innocence. The circumstances taken
cumulatively must be 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. While
there is no doubt that conviction can be based solely on
circumstantial evidence but great care must be taken in
evaluating circumstantial evidence. If the evidence relied
upon is reasonably capable of two inferences, the one in
favour of the accused must be accepted.
23. In so far the present case is concerned, prosecution relied on three
circumstances to prove the guilt of the appellant. These were:
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appellant and the victim were last seen together; extra-judicial
confession made by the appellant before PW Nos. 5, 6, 7, 8, 10 and
11; and the fact of recovery of the dead body following the confessional
statements of the appellant made to PW Nos. 5, 6, 7, 8, 10 and 11.
High Court discarded the circumstance of extra-judicial confessions
made by the appellant before PW Nos.