# SURAJDEO MAHTO AND ANR v. THE STATE OF BIHAR

- **Citation:** [2021] 8 S.C.R. 911
- **Court:** Supreme Court of India
- **Decided:** 2021-08-04
- **Case number:** Criminal Appeal No. 1677 of 2011
- **Bench:** N. V. Ramana, Surya Kant, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surajdeo-mahto-and-anr-v-the-state-of-bihar-35282
- **Pages:** 27

## Headnote

Evidence: Circumstantial evidence - Conviction on basis of
- Permissibility of - On facts, prosecution case that appellant no. 1
lured the victim out of his house, remained with him all along, on
the fourth day joined by appellant no. 2 thereafter, both conspired
and murdered the victim - Conviction of appellant no. 1 and 2, u/s.
302 r/w 34 and 120B and sentenced accordingly - Appellant no. 1
also convicted u/s. 364 - Upheld by the High Court - On appeal,
held: Upon considering the prosecution evidence in entirety, no
reason to disbelieve the prosecution version of last seen theory
against the accused - Medical evidence fully corroborates the
prosecution story of murder of the victim having being taken place
on the fourth day - Motive attributed to the appellants that they
murdered the victim because he was allegedly having an illicit affair
with the sister of appellant No.1, sufficiently proved by the
prosecution - False information given by appellant No.1 and his
post occurrence conduct of absconding and surrendering before
the court only after coercive measures were taken, is relevant to
prove an additional link in the chain of incriminating circumstances
- As regard, appellant No.2, only substantial evidence against him
is that he too was seen in the company of the victim and appellant
No.1 on the fourth day - Mere suspicion cannot be accepted as
impeccable evidence to prove his guilt beyond any doubt - Further,
no allegation against appellant No.2 of being evasive or absconding
post occurrence levelled - Thus, due to missing links in the
prosecution case as regards 2nd Appellant, guilt of 2nd Appellant
not proved beyond the pale of doubt - Thus, 2nd Appellant entitled
to the benefit of doubt and is acquitted of the charges, while the
conviction and sentence of appellant No.1 is upheld - Penal Code,
1860 - u/s. 302 r/w 34 and ss.120B and 364.
[2021] 8 S.C.R. 911
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Principle of 'Last seen theory' - Explained.
Motive - Proof of - Important piece of corroborative evidence
- Explained.
Juvenile Justice (Care and Protection of Children) Act, 2000:
s. 7A - Juvenility - Plea of - Held: Initial onus is on the accused to
produce some cogent evidence to prima facie establish the juvenility
on the date of commission of the offence - On facts, 1st Appellant
raised plea of juvenility for the first time before this Court -
Documents relied upon by 1st Appellant-School Leaving Certificate
and Admit Card issued by the School Examination Board do not
inspire any confidence and is not possible to verify the veracity of
the two documents at this highly belated stage - Plea of juvenility
raised by the 1st Appellant is rejected.
Partly allowing the appeal, the Court
HELD: 1. 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
re-appraisement 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 would refrain from interfering
with the findings of the Courts below. [Para 25][928-C-E]
2.1 The case of the prosecution in the instant case heavily
banks upon the principle of 'Last seen theory'. 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. The fact of last seen should not be
weighed in isolation or be segrega

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SURAJDEO MAHTO AND ANR.
v.
THE STATE OF BIHAR
(Criminal Appeal No. 1677 of 2011)
AUGUST 04, 2021
[N. V. RAMANA, CJI, SURYA KANT AND
ANIRUDDHA BOSE, JJ.]
Evidence: Circumstantial evidence - Conviction on basis of
- Permissibility of - On facts, prosecution case that appellant no. 1
lured the victim out of his house, remained with him all along, on
the fourth day joined by appellant no. 2 thereafter, both conspired
and murdered the victim - Conviction of appellant no. 1 and 2, u/s.
302 r/w 34 and 120B and sentenced accordingly - Appellant no. 1
also convicted u/s. 364 - Upheld by the High Court - On appeal,
held: Upon considering the prosecution evidence in entirety, no
reason to disbelieve the prosecution version of last seen theory
against the accused - Medical evidence fully corroborates the
prosecution story of murder of the victim having being taken place
on the fourth day - Motive attributed to the appellants that they
murdered the victim because he was allegedly having an illicit affair
with the sister of appellant No.1, sufficiently proved by the
prosecution - False information given by appellant No.1 and his
post occurrence conduct of absconding and surrendering before
the court only after coercive measures were taken, is relevant to
prove an additional link in the chain of incriminating circumstances
- As regard, appellant No.2, only substantial evidence against him
is that he too was seen in the company of the victim and appellant
No.1 on the fourth day - Mere suspicion cannot be accepted as
impeccable evidence to prove his guilt beyond any doubt - Further,
no allegation against appellant No.2 of being evasive or absconding
post occurrence levelled - Thus, due to missing links in the
prosecution case as regards 2nd Appellant, guilt of 2nd Appellant
not proved beyond the pale of doubt - Thus, 2nd Appellant entitled
to the benefit of doubt and is acquitted of the charges, while the
conviction and sentence of appellant No.1 is upheld - Penal Code,
1860 - u/s. 302 r/w 34 and ss.120B and 364.
[2021] 8 S.C.R. 911
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Principle of 'Last seen theory' - Explained.
Motive - Proof of - Important piece of corroborative evidence
- Explained.
Juvenile Justice (Care and Protection of Children) Act, 2000:
s. 7A - Juvenility - Plea of - Held: Initial onus is on the accused to
produce some cogent evidence to prima facie establish the juvenility
on the date of commission of the offence - On facts, 1st Appellant
raised plea of juvenility for the first time before this Court -
Documents relied upon by 1st Appellant-School Leaving Certificate
and Admit Card issued by the School Examination Board do not
inspire any confidence and is not possible to verify the veracity of
the two documents at this highly belated stage - Plea of juvenility
raised by the 1st Appellant is rejected.
Partly allowing the appeal, the Court
HELD: 1. 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
re-appraisement 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 would refrain from interfering
with the findings of the Courts below. [Para 25][928-C-E]
2.1 The case of the prosecution in the instant case heavily
banks upon the principle of 'Last seen theory'. 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. 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
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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. [Para 29, 30][929-FG; 930-E-F]
2.2 The prosecution in the instant case undoubtedly
established that the deceased was last seen alive in the company
of the appellants, and has also adduced evidence about the events
leading up to and following the point of last seen. The depositions
of PW-2, PW-3A, PW-16 and PW-17 do suggest that prior to the
point of last seen, the deceased was constantly in the company of
Appellant No.1. PW-3 and PW-4 are the persons who lastly saw
the deceased alive on 09.04.1987, and they categorically deposed
that they had seen the deceased along with the appellants. Through
the depositions of PW-1, PW-5, & PWs 10 to 14 the prosecution
has attempted to shed light on the events that occurred post the
point of last seen. [Para 31][930-F-H]
2.3 The submission 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, 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 third-parties in every case. 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 non-examination of independent
witnesses, it must also be shown that though the best evidence
was available, but it was withheld by the prosecution. That apart,
PW-3 saw A and the appellants on the outskirts of the village,
whereas, PW-4 saw A 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 PW-3 and PW-4 seems
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natural and nothing has been adduced in their cross-examination
to disbelieve their testimonies. [Para 32, 33][931-A-E]
2.4 The appellants submitted that even if the deposition of
PW-3 was considered true, he had seen A in the company of the
appellants on 09.04.1987, which was two days before the discovery
of the dead body. It was, thus, submitted 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 submission seems
attractive at the first instance, but, when considered in the light
of testimonies made by the independent witnesses PW-6 and PW8, it stands completely belied. The prosecution case is that both
the appellants committed the murder on the night of 09.04.1987.
PW-8, who discovered the body of A on 11.04.1987, deposed that
he had heard rumors about the 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 instant case further braces the
prosecution story. PW-6, the Doctor, examined the body of the
deceased on 12.04.1987. In his opinion, the time elapsed since
the death of A 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. The Courts below held that the
murder of the deceased indeed took place on 09.04.1987. There
is no reason to take a contrary view. [Para 34][931-E-H; 932-AB]
2.5 Appellant No.1 has been unable to offer any explanation
as to circumstances in which he departed from the company of
the deceased. [Para 35][932-D]
2.6 As regard to the reliability of the depositions of PW-10
to PW-14, the primary submission is that except PW-12, none of
the other witnesses were able to identify the present appellants;
and that the testimony of PW- 12 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 PW-10,
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PW-11, PW-13 and PW-14 do not add much value to the case in
hand, the question whether PW-12 could or could not identify
appellant No.2 is purely a factual issue and courts below have
taken a concurrent view in relation thereto. PW-12 was able to
identify appellant No.2 because of the chicken-pox marks on his
face. Even in the initial statement recorded by the police, PW-12
had maintained that one of the two persons who he had interacted
with on the night of 09.04.1987, had chicken-pox scars on his
face. [Para 36][932-D-G]
2.7 Upon considering the prosecution evidence in its
entirety and having meditated on the grounds raised by the
appellants to every possible extent, there is no reason to
disbelieve the prosecution version of last seen theory against
the appellants. [Para 37][932-G-H]
3.1 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. [Para 38][933-A-B]
3.2 The motive attributed to the appellants in this case is
that they murdered the deceased because he was allegedly having
an illicit affair with 'R', sister of appellant No.1. While none of the
witnesses have specifically deposed about the deceased having
an affair with R, the motive, as alleged, does find some
corroboration in the deposition of PW- 1, PW-3A, and PW-16. It
is revealed from the testimony of PW-3A, 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. PW-1 who is a fellow villager corroborated the
testimonies of PW-3A. PW-16 categorically deposed that a
Panchayat had been called in regards to the illicit relationship of
the deceased with 'R'. [Para 39][933-B-D]
4.1 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
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spiral out of control does suggest that appellant No.1 carried a
motive to eliminate the deceased. The events had occurred in
the year 1987, when the rural Indian society was irrepressibly
conservative, and even the slightest rumor of extra- marital affairs
could flare-up tensions. Considering these ground realities, the
trial court correctly recorded that the motive as alleged had been
sufficiently proved by the prosecution. The counsel for appellants
has not mounted any substantial challenge on the point of motive,
and as such, there is no reason to interfere with the indictment of
appellant No.1 on the point of motive. [Para 40][933-D-G]
4.2 Both the witnesses PW-1 and PW-5 individually met
appellant No.1 on 10.04.1987 and both of them enquired about
the whereabouts of A. Appellant No.1 lied to PW-1 and told him
that after viewing the Cinema, A alone had proceeded to Amwa
whereas appellant No.2 had gone to visit Dopta. Even more
curiously, appellant No.1 informed PW-5 that A had left for Delhi.
It is clear that the false information provided by the first appellant
was an attempt to hide his guilt by de-railing the search efforts
that were being conducted. Appellant No.1 thereafter absconded
and surrendered before the court only after coercive measures
were taken. 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. [Para 41][933G-H; 934-A-C]
4.3 There is, however, a qualitative difference in the
evidence led by the prosecution to prove charges against
Appellant No.2. The prosecution's case is that it was the 1st
Appellant 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
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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 A.
There is also no evidence on record to suggest that appellant
No.1 disclosed his intention to commit murder of deceased to
the 2nd appellant. [Para 42][934-C-F]
4.4 It is true that the prosecution has led evidence
comprising the statements of PW-3 and PW-4 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. [Para 43][934-F-G]
4.5 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 PW-16, 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
it is presumed that the deposition of PW-12 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. [Para 44][934-H; 935-A-C]
4.6 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
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
prosecution case so far as the 2nd Appellant is concerned.
Consequently, and for the reasons, the case of Appellant No.2 is
distinguishable from that of 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. [Para 45][935-C-E]
5.1 Section 7-A of Juvenile Justice (Care and Protection of
Children) Act, 2000 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 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. [Para
46][935-E-F]
5.2 The 1st Appellant raised plea of juvenility for the first
time before this Court. He has placed 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. When the documents relied
upon by 1st Appellant are analysed in the backdrop of these settled
principles, the same do not inspire any confidence. The name of
appellant No.1 does not appear on the documents, instead these
belong to one 'SP'. 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 'SM' and not 'SP'. In the
absence of any cogent material indicating that the subjectdocuments pertain to 1st Appellant only, no case to hold any factfinding enquiry is made out. Consequently, reliance on the
documents in question is not accepted and the plea of juvenility
raised by the 1st Appellant is rejected. [Para 48][935-G-H; 936E-G]
6. While the conviction and sentence of Appellant No.1 is
upheld, the 2nd Appellant is acquitted of the charges. [Para 49][936G-H]
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Abuzar Hossain alias Gulam Hossain v. State of West
Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244;
Inspector of Police, Tamil Nadu v. John David (2011) 5
SCC 509 : [2011] 7 SCR 354; State of Rajasthan v.
Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR
501; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999]
3 Suppl. SCR 314; Badruddin Rukonddim Karpude v.
State of Maharashtra (1981) Supp SCC 1; Ravinder
Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006]
2 Suppl. SCR 615; Sharad Birdhichand Sarda v. State
of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
Mohd. Younus Ali Tarafdar v. State of W.B. (2020) 3
SCC 747; R. Damodaran v. State Represented by the
Inspector of Police (2021) SCC OnLine SC 134;
Satpal v. State of Haryana (2018) 6 SCC 610 - referred
to.
Case Law Reference
[2012] 9 SCR 244
referred to
Para 20
[2011] 7 SCR 354
referred to
Para 21
[2006] 8 Suppl.SCR 501
referred to
Para 21
[1999] 3 Suppl. SCR 314
referred to
Para 22
(1981) Supp SCC 1
referred to
Para 22
[2006] 2 Suppl. SCR 615
referred to
Para 23
[1985] 1 SCR 88
referred to
Para 27
(2020) 3 SCC 747
referred to
Para 27
(2018) 6 SCC 610
referred to
Para 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1677 of 2021.
From the Judgment and Order dated 20.05.2010 of the High Court
of Judicature at Patna in Criminal Appeal No.273 of 1988.
Ms. Prerna Singh, T. Mahipal, Advs. for the Appellants.
Abhinav Mukerji, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs.
for the Respondent.
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The Judgment of the Court was delivered by
SURYA KANT, J.
1. 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 120-B of the IPC and have
been sentenced to life imprisonment for each of the offences. 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 (PW-17) 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 (PW-17) 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; PW-16) enquired from Raj Kumar
who told him that Arun and Surajdeo Mahto had gone to Arun's in-laws'
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 (PW-1)
to join him in looking for Arun. They found out that Surajdeo Mahto and
Arun had visited the latter's in-laws' place on 06.04.1987 and stayed
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,
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instead, he too disappeared and was not seen for the next few days.
Pursuant to Ramji's request, PW-1 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 (PW-3A), 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 (PW-8), 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 (PW-18), Officer-In-charge, 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 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 (PW-16) received information
that a dead body of a male person was brought in by the Govindpur
Police Station. Subsequently, Ramji Mahto along with some co-villagers
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 above-stated
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, 120-B 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 (PW-16),
father of the deceased. PW-16 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. PW-16 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". PW-16 also deposed that it
was at his instance that Ishwari Mahto (PW-3A) 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.
PW-16 further identified one of the seized lungis belonging to Suarjdeo
Mahto (Appellant No.1). The cross-examination of PW-16 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 (PW-3A) 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 (PW-17)
corroborated the deposition of PW-16, and stated that Appellant No.1
pressurized Arun to accompany him and Raj Kumar to watch Cinema.
PW-17 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. PW-17 stated that upon Appellant No.1's
insistence, they spent the night in Prakash Mahto's house (Brother-in
law of Surajdeo; Appellant No.1). The next day, i.e., 06.04.1987, when
PW-17 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 (PW-2), Arun's father-in-law, 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."
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10. Bipat Mahto (PW-4), 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 PW-4 was Arun's uncle and also resided in the
same village, he and his wife went to invite Arun to their place. He
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 PW-4's
wife went again to call Arun, she was informed by Appellant No.2's
wife that Arun had gone back. Sheodani Mahto (PW-3), who is the son
of PW-4 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 PW-3
that all of them were going towards Kakolat village.
11. We may now consider the statements of Bharat Singh (PW10), Kashi Mahto (PW-11), Ram Prasad (PW-12), Baleshwar Prasad
(PW-13) and Mathura Saw (PW-14). PW-10 and PW-11 deposed that
on the night of 09.04.1987, they had heard a motor vehicle (tractor)
going in the direction of Kakolat. However, PW-10 and PW-11 had not
seen the passengers in the vehicle. PW-12, PW-13 and PW-14 were all
present near PW-14's shop in the late hours of 09.04.1987 and they
deposed about seeing two persons returning from Kakolat. PW-12 went
further and stated that he was able to identify the persons who had
stopped near PW-14's shop. Upon seeing the accused persons in Court,
PW-12 identified Appellant No.2 as one of the persons who had come to
the shop that night. PW-12 in his cross-examination 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 (PW-1) and Umeshwar Prasad
(PW-5) also bears some relevance to the prosecution's case. PW-1
deposed that on 09.04.1987 he was requested by PW-16 to search for
Arun. He further stated that the next day, i.e., 10.04.1987, he went to
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the market and there he found Appellant No.1. PW-1 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. PW-5 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 (PW-8), Chawkidar Circle No.9, was
the one who discovered the dead body of Arun on 11.04.1987. In his
cross-examination 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
night time and the place being a forested area, he could go there on the
following day only. PW-6, is the Doctor who conducted the post mortem
examination of the dead body. Upon examining the injuries present on
the deceased's body, PW-6 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 Kakolat. Negating the contentions raised by the
defence, the Trial Court believed the testimony of PW-16 in toto and
held that purported motive as well as the identification of incriminating
material by PW-16 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.
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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 PW-1 and
PW-5 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 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 PW-5. 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 eye-witness 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 Counsel further
pressed that the Courts below have completely erred in relying upon the
testimony of PW-10 to PW-14. As far as Appellant No.2 is concerned, it
was submitted that only evidence against him was that of Sheodani Mahto
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(PW-3) and Baleshwar Prasad Yadav (PW-12). The Counsel asserted
that PW-3 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
PW-3 did not support the prosecution case. Casting doubts on the
credibility of the evidence of PW-12, it was claimed to be highly
improbable that PW-12 was able to see the face of Appellant No.2 only
through the light of a lantern on a pitch-dark 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
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.
1 (2012) 10 SCC 489, ¶ 39
2 (2011) 5 SCC 509, ¶ 33 to 35
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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 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 lung is 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, PW-1 to PW-14, 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.
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
3 (2006) 12 SCC 254, ¶ 19-24
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
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decision of this Court in Ravinder Singh Gorkhi v.