IMPORTANT POINT
The circumstantial evidence is not complete for conviction of appellant Mohibur Rahman for any offence but it is complete against appellant Taijuddin only for murder simpliciter of the deceased.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34 and 201/34-Conviction of appellant Mohibur Rahman under-Based on circumstantial evidence of last seen-Time gap considerable between last seen and recovery of dead body-No recovery at his instance-Can his conviction be sustained on such circumstantial evidence? (No)-His appeal allowed.
       Held : The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 kms. The event of the two accused persons having departed with the deceased and thus last seen together (by Litima Rajbongshi, PW6) does not bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased, a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. (Para 10)
       (ii) Indian Penal Code, 1860-Sections 302/34 and 201/34-Conviction of appellant Taijuddin under-Conviction based on last seen in the company of deceased-Giving false explanation of whereabouts of deceased-Having knowledge of dead body of deceased-Recovery at his instance-Co-accused acquitted-Result -Can be convicted only u/s 302 and for no other offence-His appeal partly allowed-(Evidence Act, 1872-Section 27-Recovery).
       Held : So far as the accused Taijuddin is concerned, apart from his having been last seen in the company of the deceased, there is evidence available to show that a day or two after disappearance of Rahul he contacted the relations of the deceased and instead of revealing to them how and where he had departed from the company of the deceased, assigned an obviously false reason for the deceased being untraceable which reason was intended to set the mind of the relations thinking on different or imaginary tracks. The dead body cut into two pieces was recovered from two different places on the pointing out by the accused Taijuddin the places where the two pieces were lying buried and no one else could have ordinarily gathered the knowledge of the pieces of the dead body having been buried unless pointed out by the accused Taijuddin. It is true that the accused Taijuddin did not make any statement admissible under Section 27 of the Evidence Act nor the discovery of dead body has been in consequence of information received from the accused. Had it been so probably the authorship of burial of dead body could have been attributed to the accused depending on the words in which the accused made the statement. Still recovery of the dead body on pointing out by the accused in the circumstances aforesaid leads to inference that the accused Taijuddin had the knowledge of the place where the dead body cut into two pieces was lying buried. These three circumstances taken together, namely, the deceased last seen in the company of the accused, the accused giving a false explanation about the whereabouts of the deceased and the accused having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being subjected to deadly violence) being buried, coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances, is sufficient to fasten the liability of murder on the accused Taijuddin. But, at the same time it cannot be said that the accused Taijuddin has caused any evidence of the commission of that offence to disappear. His conviction under Section 201/34 IPC cannot be sustained. (Para 11)
       Held finally : For the foregoing reasons, Criminal Appeal No. 550 of 2001 by the accused-appellant Mohibur Rahman is allowed. His conviction under Sections 302/34 and 201/34 IPC along with the sentences passed thereon is set aside. He is acquitted. He shall be released forthwith unless required to be detained in connection with any other offence. So far as the accused Taijuddin is concerned, his conviction under Section 302/201/34 IPC is also set aside instead he is held guilty under Section 302 IPC. The sentence of imprisonment for life and a fine of Rs. 2000/-, in default of payment to suffer further R.I. for one year is maintained. Criminal Appeal No. 551/2001 by Taijuddin thus stands partly allowed. (Para 12)

JUDGMENT

R.C. Lahoti, J.-The two accused-appellants have been held guilty of the offences punishable under Sections 302/34 and 201/34 of the IPC. Each of the accused-appellants has been sentenced to imprisonment for life and a fine of Rs. 2,000/-, in default to suffer R.I. for one year and seven years R.I. and a fine of Rs. 500/- in default to suffer R.I. for three months respectively for the two offences. The substantive terms of imprisonment have been directed to run concurrently. The conviction and sentence as recorded by the trial Court have been upheld by the High Court.

2. There were in all seven accused persons put up for trial out of which five were acquitted by the trial Court and their acquittal has achieved a finality. There is no eye witness to the crime. The conviction rests on circumstantial evidence. Without entering into very many details of the prosecution story and the nature of evidence coming through the mouth of several prosecution witnesses at the trial, it would suffice for our purpose, in the facts and circumstances of the case, to set out the circumstances which in the opinion of the High Court are incriminating and form such chain of incriminating circumstantial evidence as would fasten beyond reasonable doubt the finding of guilt against the accused-appellants. The circumstances are:-

(i) The deceased Rahul was last seen in the company of the two accused-appellants;

(ii) The deceased was having an affair with the sister-in-law of the accused Taijuddin which was not to the liking of the accused which had caused strained relationship between the deceased and the accused;

(iii) The accused Taijuddin visited the house of the deceased Rahul after his disappearance and told the family members that Rahul might have eloped with his sister-in-law or might have been killed by ULFA;

(iv) The trunk of the body of the deceased, the severed head, the clothes and shoes of the deceased were recovered on being pointed out by the two accused-appellants.

3. It is well settled by a catena of decisions of this Court that in order to find conviction on circumstantial evidence each of the incriminating pieces of circumstantial evidence should be proved by cogent and reliable evidence and the Court should be satisfied that the proved pieces of circumstantial evidence taken together forge such a chain wherefrom no inference other than of guilt can be drawn against the accused person or, in other words, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than the guilt of the accused. Based on these parameters we proceed to examine the evidence in the case.

4. As to last seen together, there is the sole testimony of Smt. Lilima Rajbongshi, PW6. According to her, she and the deceased Rahul were taking contract works in joint venture. She knew the deceased and his brother, the complainant who lodged the FIR. The accused persons were not known to her. On 24.1.1991 the witness had gone to the clinic of Dr. Chaban in connection with the illness of a cousin of hers. There Rahul came to collect some information from her. Having stayed in the chamber of Dr. Chaban for about 10-15 minutes she and Rahul left for Dhomdhoma bus stand. At about 5 p.m., the two accused Taijuddin and Mohibur Rahman came there and took away Rahul by bus towards Nalbari Town. Thereafter she did not see Rahul. She heard that Rahul was murdered. She was confronted with her police statement wherein she had stated that she was in doctor s chamber at 7 p.m. This contradiction has been explained by the High Court by observing that the witness was a village woman being examined after a long lapse of time and therefore there could be a lapse on her part in mentioning the exact timings but there was no reason to disbelieve her so far as the factum of the two accused persons having taken away the deceased in her presence is conc

Click Here to Read the rest of this document

2002 Supreme(SC) 835

IMPORTANT POINTThe circumstantial evidence is not complete for conviction of appellant Mohibur Rahman for any offence but it is complete against appellant Taijuddin only for murder simpliciter of the deceased.

IMPORTANT POINT
The circumstantial evidence is not complete for conviction of appellant Mohibur Rahman for any offence but it is complete against appellant Taijuddin only for murder simpliciter of the deceased.