Circumstantial evidence must establish a complete chain of guilt beyond reasonable doubt, with the prosecution bearing the burden of proof.

JUDGMENT :

ILESH J. VORA, J.

1. The criminal appeal preferred by the appellant accused Rakesh @ Jaggo Vinubhai Parmar – original accused no.1 under Section 374(2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 13.08.2008 passed by the Additional Sessions Judge, City Court, Ahmedabad in Sessions Case No.338 of 2006, by which the appellant has been convicted under Sections 302 and 394 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.500/-, in default of payment of fine, to further undergo additional imprisonment of 3 months. He was also sentenced to undergo one year imprisonment for the offence under Section 394 of IPC and fine of Rs.500/- and default thereof, further undergo 3 months simple imprisonment. All the sentences were ordered to run concurrently. The Trial Court acquitted remaining accused viz. Brijrajsinh Chudasma and Hasmukh Ravat. The juvenile accused Vijay was tried by the Juvenile Court.

2. We have heard Dr. Hardik Raval, learned counsel appearing for and on behalf of the appellant-accused and Mr. Jay Mehta, learned APP for the respondent-State.

3. The prosecution case based on purely on circumstantial evidence. In a case based on circumstantial evidence, the onus upon the prosecution to prove the chain of circumstances beyond all manner of doubt. The Supreme Court in Sharad Bardhichand Sharda Vs. State of Maharashtra (1984 (4) SCC 116 ), laid down golden principle to be followed in a case based on circumstantial evidence. Para-153 of the judgment reads as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

4. Keeping in view the above principles, let us examine the facts and evidence of the case. The appellant Rakeshkumar Parmar and other three persons were tried for the offence of murder and robbery. According to the prosecution case, they killed the deceased Rishidepsingh @ Pinto aged about 17 years, by strangulating him with clutch-wire (generally used for two wheeler) and robbed the cash amount of Rs.4500/-, nokia mobile phone and jewelries like two golden chains, silver and gold rings, which were worn by the deceased.

5. The case of the prosecution in nutshell is that;

5.1 Deceased Pintoo was resident of Meghaninagar, Ahmedabad and he was passionate to wear golden chains and rings and he was used to wear two golden chains, rings and keep with him the latest mobile phone. The father of the deceased was custom officer and mother settled at Canada. The deceased was living with his elder brother Rajdeepisingh Siddhu (PW-1). The deceased generally used