Conviction based on circumstantial evidence requires corroborative proof; lack of such evidence warrants suspension of sentence.

ORDER :

I.A. No.11830 of 2024 in Cr. Appeal (DB) No.1515 of 2024

&

I.A. No.11834 of 2024 in Cr. Appeal (DB) No.1493 of 2024

1. The instant interlocutory applications have been filed under Section 430(1) of the BNSS for suspension of sentence dated 28.08.2024 passed by learned Additional Sessions Judge-III, Dumka in connection with Sessions Trial No.73 of 2023 arising out of Jama P.S. Case No.55 of 2022 whereby and whereunder, the appellants have been sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/- for the offence under Sections 302 and 120B of the Indian Penal Code each, in default of payment of fine, further S.I. for six months and further, R.I. for seven years with fine of Rs.5,000/- for the offence under Section 201 of the Indian Penal Code, in default of payment of fine, further S.I. for three months.

2. It has been contended on behalf of the appellant that it is a case where the conviction is based upon circumstantial evidence even without completion of chain.

3. It has been contended that the recovery which has been shown to be on the basis of the confessional statement of Shivani Kisku which is of garment said to be used in commission of crime recovered from the house of Shivani Kisku.

4. It has been contended that the said article, which has been recovered, has not been sent to the FSL for corroborating with the fact about its use in the commission of crime.

5. It has further been submitted that dead body has not been recovered on the confession made by the appellants, rather, as per the version of the informant, the dead body has been found to be in a particular place having been acknowledged by the villagers due to the smell coming out from the decomposed body of the deceased.

6. Learned counsel, based upon the aforesaid grounds, has submitted that it is, therefore, a fit case for suspension of sentence.

7. While on the other hand, learned counsel appearing for the State and the Informant, both have vehemently opposed the prayer for suspension of sentence.

8. It has been contended that the article which has been used in commission of crime since has been recovered on the basis of the confessional statement of Shivani Kisku and the same if has been taken into consideration for making basis of conviction, the same cannot be said to suffer from an error.

9. Further submission has been made by making reference of the CDR (Call Detail Record) having the conversation of both the appellants before the commission of crime.

10. Learned counsel for the State and the Informant, based upon the aforesaid grounds, have submitted that it is, therefore, not a fit case for suspension of sentence.

11. This Court has heard learned counsel for the parties, gone across the finding recorded by the learned trial court in the impugned judgment as also the testimony of witnesses available in the lower court record and the exhibits available therein.

12. This Court, in order to appreciate the argument advanced on behalf of the parties, has gone through the trial court record and found therefrom that the conviction is based upon circumstantial evidence/last seen theory.

13. This Court, in order to examine the legal requirement in the matter of proving the charge in a case of circumstantial evidence or the last seen, has considered the testimony of the Investigating Officer who has been examined as PW-6 and has found that the confessional statement of one of the appellants, namely, Shivani Kisku, has been recorded by him, which has been marked as Ext.-P-10.

14. We have gone through the confessional statement of Shivani Kisku but have not found regarding any disclosure made with respect to the whereabout of the body of the deceased. However, the statement has been made to the effect that one top and one stole having been said to be used in commission of crime. The learned trial court has considered the said material for convicting both the appellants.

15. The learned trial court, in addition to the same, has also considered the CDR (C