Ganesh Ram vs The State Of Bihar (Now Jharkhand) on 22 July, 2025

July 27, 2025

Jharkhand High Court

Ganesh Ram vs The State Of Bihar (Now Jharkhand) on 22 July, 2025

Cr. Appeal (D.B) No. 24 of 1998 (R)
(Against the judgement of conviction dated 27.01.1998 and the order of
sentence dated 28.01.1998 passed by the learned 2nd Addl. Sessions Judge,
Palamu, Daltonganj in Sessions Trial No. 509 of 1996)

1. Ganesh Ram, son of late Sukhlal Ram

2. Bhola Ram, son of Belash Ram
All residents of village Mandra, PS-Majhiaon, District-Garhwa
….. … Appellants
[In Cr. Appeal (D.B) No. 45 of 1998 (R)]

1. Sunil Ram, son of Belas Ram

2. Arjun Ram, son of Ram Briksha Ram

3. Suneshwar Ram, son of Gatauri Ram.

All residents of Village-Mandra, PS-Majhiaon, District-Garhwa
….. ……. Appellants
[In Cr. Appeal (D.B) No. 24 of 1998 (R)]

Versus

The State of Bihar (now Jharkhand) … … Respondents
(in both the cases)

——-

CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJESH KUMAR

——-

For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mrs. Supriya Dayal, Advocate
For the State : Mrs. Priya Shrestha, Spl.PP

——

C.A.V On 25.06.2025 Pronounced on 22/07/2025

Per Sujit Narayan Prasad, A.C. J.

1. Since both these appeals are arising out of the same trial being Sessions

Trial No.509 of 1996 and, as such, both are taken together.

2. These appeals under section 374(2) of the Code of Criminal Procedure are

directed against the judgment of conviction dated 27.01.1998 and the
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order of sentence dated 28.01.1998 passed by the learned 2 nd Addl.

Sessions Judge, Palamu, Daltonganj in Sessions Trial No. 509 of 1996

whereby and whereunder the appellants, above-named, have been

convicted under sections 148, 302/149 of the Indian Penal Code and

sentenced to undergo RI for two years for the offence under section 148

of the Indian Penal Code and imprisonment for life under section 302/149

of the Indian Penal Code and all the sentences shall run concurrently.

3. At the outset, it needs to mention here that in Criminal Appeal No. 45 of

1998 (R) out of four, only two appellants, namely, Ganesh Ram and Bhola

Ram are alive and the rest two appellants had died during pendency of the

appeal. Vide orders dated 16.12.2024 and 04.04.2025 passed in the present

proceeding, Criminal Appeal No. 45 of 1998 (R) qua the appellants,

namely, Ram Sundar Ram and Gatauri Ram stands abated.

4. It also needs to mention here that in Criminal Appeal No. 24 of 1998 (R)

out of four, one appellant, namely, Belas Ram had died during pendency

of the appeal and vide order dated 16.12.2024 passed in the present

proceeding, Criminal Appeal No. 24 of 1998 (R) qua the appellant,

namely, Belas Ram stands abated.

5. The prosecution story in brief as per the allegation made in the FIR lodged

on the basis of fardbayan of Sahbir Ram, the informant, reads as under:

(i) It is stated in the FIR that in between the night of 25th and 26th May,

1996 at about 1 A.M., 8 to 10 persons came to the house of the

informant. They awoke to hear the sound of their steps and saw that

they were encircled by the miscreants. The informant along with his

father, his uncle Ramprit Ram, cousin Lalit Ram were sleeping in

front of their house after meal. The accused persons threatened them

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to do away with their life in case they alarmed and so they keep

silence.

(ii) It is alleged that the accused persons tied the hands of his uncle and

cousin from backside by means of gamchhi (towel). They were

flashing torches in the light of which Ganesh Ram, Ramchandra

Ram, Ram Sundar Ram, Gatauri Ram, Bhola Ram all armed with

balua and Sunil Ram, Suneshwar Ram armed with pistol and Belas

Ram, Arjun Ram and Sudeshwar Ram armed with lathi were

identified. They had taken away his father after tying his hands from

backside shouting as he was imposing him as Hero (“बहुत हीरो बनता

है ) towards east in the night. They did not search his father at night

due to threatening of the accused persons.

(iii) In the morning with the help of villagers, they started to search and

ultimately at about 12 noon they could find the dead body of

informant’s father in the bed of Koel river. Neck of the dead body

was cut from front and backside. They brought the dead body to

their house and asked Ramyas Ram-chaukidar to inform the matter

to the police station. Lastly, it is claimed that all the above persons

had taken his father towards Koel river and chopped him resulting

into his death.

(iv) On the basis of the said fardbayan, Majhiaon PS Case No.26 of 1996

was registered under sections 147/148/149/364/302 of the IPC

against the above-named persons, who are the appellants in these

appeals.

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(v) After investigation, the police submitted the charge sheet against the

appellants for the offences under sections 148, 302/149, 364/149

IPC, thereafter, the case was committed to the court of Sessions. The

statements of the appellants were recorded under Section 313 of

Cr.P.C.

6. Accordingly, the trial proceeded and the appellants were found guilty by

the learned trial Court for the aforesaid offences referred hereinabove. The

aforesaid order of conviction and sentence is under challenge in these

appeals.

Submission of the learned senior counsel for the appellants:

7. Learned senior counsel appearing for the appellants has taken the

following grounds for interfering with the finding recorded by the learned

trial Court in the impugned judgment:

(i) The prosecution has miserably failed to establish the charge

said to be proved beyond all reasonable doubt.

(ii) The further ground has been taken that the conviction is under

sections 302 of the Indian Penal Code by taking aid of section 149

IPC but no any evidence in order to substantiate the common

object among the appellants to the deceased has led by the

prosecution, as such, there cannot be any conviction against the

appellants, in absence of any specific overt act said to be

committed by these appellants even if the entire prosecution

version will be taken in to consideration in entirety as there is no

eye witness to the said occurrence of murder as to in fact who had

committed murder of the deceased.

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(iii) It has been stated that there is nothing on the record as to how

the police received the information about the occurrence and on

the basis of which they reached at the door of the informant for

recording the fardbeyan.

(iv) It has been stated that the learned trial Court has not convicted

the appellants for the offence under section 364/149 of the Indian

Penal Code, as such, the conviction under sections 302/149 of the

Indian Penal Code and section 148 of the Indian Penal Code is bad

in law as well as in the facts for the reasons that there is no

evidence on the record that these appellants have committed

murder of the deceased.

(v) It has been contended that the medical evidence does not

corroborate the inquest report and the prosecution as well as the

inquest report is contradictory to the post mortem report.

(vi) It has been contended that the appellants are alleged to have

been convicted on the basis of circumstantial evidence which has

not been justified in the eyes of law.

(vii) It has been contended that it has come in the evidence that

accused Gatauri Ram had lodged a Criminal case against the

informant and others prior to the date of the alleged occurrence, as

such, the false implication of the appellants in this case cannot be

ruled out.

(viii) It has been contended that that the deposition of the material

witnesses on the point of occurrence is doubtful for the reasons

that none of the villagers had come at the place of occurrence after

hulla. If the occurrence would have been taken place in the manner

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as alleged by the prosecution, then certainly the co-villagers must

have reached at the place of occurrence after hearing hulla.

(ix) It has been contended that the independent and material

witnesses of the case have not been examined by the prosecution

for the reasons best known to the prosecution.

(x) It has been contended that the witnesses adduced on behalf of

the prosecution are highly interested witnesses. The fact that the

informant and his cousin brothers had narrated the story and

involvement of the appellants to the co-villagers namely,

Mahendra Ram, Rajendra Ram, Birendra Ram, Chalitar Ram,

Faruque Mian, Gulabi Mian, Binod, Awadhesh and others on the

next morning, but none of them has been examined by the

prosecution As such, the story being concocted with a purpose to

falsely implicate the appellants cannot be ruled out.

(xi) It has also been contended that as per allegation it is

unbelievable that if the appellants took away the father of the

informant at night, then they will go looking for him after two

hours of the alleged occurrence and will not make any hullah

inspite of the fact that there were other family members present at

the time when the appellants took away the informant’s father.

(xii) It has been contended that it is also unbelievable that when

the informant and his other family members traced out the dead

body of his father in the very next morning, they did not inform

the police rather they brought back the dead body to their house

from the place of occurrence.

(xiii) It has been contended that the Investigating Officer had not

found the dead body in the Koel River neither any incriminating

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material has been found at the alleged place of occurrence. As

such, it creates reasonable doubts over the case of the prosecution.

The Investigating Officer has not found even the blood mark at

any of the place of occurrence though the deceased had sustained

cut injury on the neck.

(xiv) It has been contended that in his evidence the Investigating

Officer has stated that he has seen only two injuries on the persons

of the deceased, whereas the postmortem report says otherwise and

contradictory to the inquest report.

8. The learned senior counsel for the appellants, based upon the aforesaid

grounds, has submitted that the judgment of conviction passed by the

learned trial Court convicting the appellants under sections 148, 302/149

of the Indian Penal Code, therefore, is fit to be quashed and set aside.

Submission of the learned Spl. Public Prosecutor for the State:

9. While defending the judgment of conviction and sentence, the learned Spl.

Public Prosecutor appearing for the State has defended the impugned

judgment of conviction and order of sentence by taking the following

grounds:

(i) The conviction so far as under section 302 of the Indian

Penal Code against the surviving appellants does not suffer from

an error, since, ample evidence has been produced by the

prosecution. However, she has admitted the fact that nobody had

seen the occurrence in fact who had committed murder of the

deceased and in what manner.

(ii) The argument has been advanced that the informant

himself has seen that the appellants took away his father from his

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home and later on he found dead, as such, the attributability is there

to attract the ingredient of section 302 of the Indian Penal Code,

hence, they are liable to be punished under section 302 of the

Indian Penal Code with the aid of Section 149 IPC and, as such,

the impugned judgment does not require any interference.

(iii) The argument has been advanced that the ample material

has been produced by the prosecuting agency who established the

case under sections 148, 302/149 of the Indian Penal Code so far

as the appellants are concerned since the fact has come in course

of evidence produced by PW6, the informant, that he along with

his father (deceased), Lalit Ram and Ramprit Ram were slept on

the cot, then the appellants armed with pistol, balua and lathi

entered into the house and tied their hands. Thereafter, they took

away his father towards east side after giving threatening of dire

consequences and later on his father was found dead.

(iv) The argument has also been advanced that PW4, PW5 and

PW6 (the informant), who are said to be the eye witnesses have

supported the prosecution version supported by the medical

evidence. Hence, the conviction so far as the appellants of these

cases under sections 148, 302/149 of the Indian Penal Code is

concerned, the same cannot be said to suffer from an error.

10.The learned State counsel, based upon the aforesaid premise, has

submitted that the impugned judgment so far as these appellants is

concerned, does not suffer from any error and does not require any

interference both under sections 148, 302/149 of the Indian Penal Code,

hence the instant appeal is fit to be dismissed.

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Analysis

11.We have heard learned counsel for the parties, perused the documents

available on record as also the finding recorded by the trial Court in the

impugned judgment.

12. We have also gone through the testimonies of the witnesses as available

in the Trial Court Records as also the exhibits appended therewith.

13. Learned trial Court, based upon the testimonies of witnesses, has passed

the judgment of conviction and has convicted the appellants under

Sections 148, 302/149 of the Indian Penal Code and sentenced them to

undergo RI for two years for the offence under section 148 of the Indian

Penal Code and imprisonment for life under section 302/149 of the Indian

Penal Code and all the sentences shall run concurrently.

14.This Court, before considering the argument advanced on behalf of the

parties, is now proceeding to consider the testimonies of witnesses which

have been recorded by the learned trial Court.

15. It is evident from record that in order to substantiate the case, the

prosecution had altogether examined 08 witnesses and they were PW1-

Mangal Soy Majhi, PW2-Jwala Prasad Singh(the doctor), PW3-Surendra

Ram (co-villager), PW4- Lalit Ram, PW5- Sahodar Devi (wife of the

deceased), PW6-Sahbir Ram (the informant), PW7-Ramprit (tendered

witness) and PW8-Kalpu Ram (this witness has been declared hostile).

16. On the other hand, to defend their case two witnesses have been examined

on behalf of the appellants herein who are DW1- Ramchandra Paswan and

DW2 Ram Janam Ram Paswan.

17. PW6 Sahbir Ram is the informant who is said to be an eye witness. He

has given his fardbeyan before the police on the basis of which F.I.R was

lodged against the accused persons. This fardbayan has been marked as

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Ext.1 and F.I.R. has been marked as Exhibit-2 and his signature over the

same has been marked as Ext.5/1.

PW6 has stated that on 25.05.96 at about 1 AM when he along with

his father (deceased), Lalit Ram and Ram Prit Ram were sleeping at the

door of their house, some miscreants entered into his house and encircled

them. On hearing their footsteps, he awoke and sat over the bed. The

miscreants threatened them of dire consequences if they would raise

alarm. Thereafter, they tied up the hands of his father, Lalit Ram and Ram

Prit Ram. He has further stated that the miscreants were flashing torches,

in the light of which he identified the accused persons, namely, Ganesh

Ram, Ramchandra Ram, Ramsundar Ram, Gatauri Ram and Bhola who

were armed with Balua, pistol and lathi. He has stated that Bhola Ram

was armed with balua, Sunil Ram and Sumeshwar Ram were armed with

pistol and Belas Ram, Arjun Ram and Sudeshwar @ Udeshwar Ram were

armed with lathi and they took away his father to the eastern side by

saying that “bahut hero banta hai, chalo udhar pata chalate hai” (he

pretends to be a hero, let’s go there and face the consequence).

PW6 has deposed that due to fear, he could not try to trace out his

father and further stated that when he along with others went out to search

his father at 3 AM, they found his father’s body in the Koel River at about

12 Noon. He has further stated that on the dead body of his father there

were several bruises and the neck of his father was cut from front and back

side and on the forehead, there was a cut mark. He brought the dead body

of his father to his home. He has further stated that the police arrived his

home at about 6 PM and he gave his fardbayan before the police. He has

identified his signature over the fardbayan which has been marked as

Ext.5/1.

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In cross-examination, this witness has admitted that there was a

dispute in between his family and the accused persons. At, para- 5 of his

cross-examination, this witness has stated that when the accused person

came, he was slept at the door of house. He has admitted that the accused

persons were flashing the torch.

At para-6 of his cross-examination, this witness has stated that on that

fateful night after the incident, he did not talk to anyone about the

occurrence, rather he talked about the said occurrence to Faruque Mian,

Gulab Mian, Kalpu, Ramprit and Surendra Ram in the very next morning

before going to search out his father.

At para-7 he has stated that he did not inform the Chaukidar as they

were crying at that time. He has stated that he has not informed the police

rather the police on information of its own has reached his house.

At para-8 he has stated that he knows Ramchandra Ram (DW2) but

denied the suggestion that any ritual of “Madwa” (“mandap Chajan”) was

performed there on 25.05.1996. He has further stated that the said

Ramchandra Ram are not related with them. He has denied the suggestion

that on 25.05.1996 when there was Madwa, some extremists came there

to search his father and they abducted him at about 1 AM from there.

At para-9 he has stated that the accused persons are from the village

across the river and admitted the fact that before the said occurrence

Gatauri Ram (one of the accused) has instituted a case against them.

At para-10 he has stated that it is wrong to say that the accused

persons were neither abducted his father nor murdered him and due to

some enmity, they have been implicated in a false case.

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18. PW1 Mangalram Manjhi is the Investigating Officer of this case. He has

stated that on 26.05.1996 he was the station in-charge of Majhiaon police

station. On that day he got a rumour that someone had been murdered in

Kurkuta village so he went there with the police force. In Kurkuta village,

he recorded the statement of informant Sahbir Ram and read it out. After

finding it correct, the said Sahbir Ram has made his signature upon the

same. On seeing the individual statement, the witness says that it is in his

writing and signature. The witness also identified signature of Sahbir Ram

and said that he had signed in his presence. Apart from this, Lalit Ram also

signed in his presence. The individual statement was marked as Exhibit 1.

He has identified his signature made on the FIR and has stated that the FIR

was in the writing of Prem Sundar Prasad, Sub Inspector. He has deposed

that after this he recorded the statement of the informant again. He went to

the place of occurrence and found that the first crime scene of this case

was the house of deceased Sitaram Paswan in Kurkuta village.

19. He has stated in detail of the boundary of the house of the deceased by

saying that there is an open space in front of the door outside where the

deceased Sita Ram Paswan was slept at night. The accused caught Sita

Ram Paswan and went towards the east. He narrated the boundary of the

house of the deceased by saying that to the east of the house, it is Kallu

Ram’s house, to the west it is open land, to the north it is Charitra Ram’s

house and to the south about 30 feet it is Rampreet Ram’s house.

He has deposed that he also went to place of occurrence no. 2 i.e.,

the place where the deceased was said to be murdered. This place is 2 KM

east of Sita Ram Paswan’s house on the bank of Koel River where the

accused caught the deceased and killed him by slitting his throat. He found

scattered marks of blood stains there. He has further deposed that 80 yards

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west of it, a concrete structure was found built and spread across the river,

in which there was water at some places and from 1.5 km South, there is

Bararu Bridge. He has stated that he recorded the statement of the

witnesses and prepared an inquest report in three carbon copy. He

identified his signature over the same.

During cross-examination, the Investigating Officer has stated

that he has taken the evidence of all the witnesses for the purpose of

investigation. The body of the deceased was in the open space outside his

house. The body was 2 yards away from the wall of the house. He denied

that he cannot say whether there was bloodstain on the clothes worn by the

deceased or not. He has further stated that he has not seized the clothes

worn by the deceased. The bloodstain was at the second crime scene which

had been wiped off by footsteps. It was not worth confiscating. There was

water 15 yards east of that spot. The bloodstain was in the sand of the river.

He has stated that if anybody walks from the deceased’s house, he will first

find the blood stain and then the water. He has stated that he came to know

about the second crime scene through the informant who was with him at

that time. He has stated that during the investigation he found that before

the incident, on the occasion of Holi, the accused in this case, namely,

Gatori Ram had filed a case of assault against the informant and others, in

which after investigation a charge sheet was also filed by the police. He

has stated that during investigation he found that the accused Ramchandra

Ram is a teacher at Manika and lives there with his family and goes to

school. He has admitted that he has not made any map of the site of

incident. He has further stated that he has seen that there were two wounds

on the body of the deceased.

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This witness was further called for re-examination on 16.09.1997. He

has stated that house of Charitar Ram is written to the north of the place of

incident and Rampreet Ram to the south. He has recorded the statement of

Rampreet Ram, but not the Charitar Ram. He reached the place of incident

at 6 PM on 26.05.1996. He has stated that he got the information about the

incident through rumours. He has further stated that he received this

information on 26th at 4.15 PM. Chowkidar-Ram Yash has informed the

police station after leaving his station. He has stated that he has not

recorded the statement of the Chowkidar in the diary and did not find out

whether the Chowkidar’s information was written in the station diary or

not. He denied that the witness Lalit Ram did not say that he slept on a cot

with Sahbir, but he did not say that the accused were looking for a towel

in the flashlight of a torch. He also did not say that the accused told to Sita

Ram that you are trying to be a gangster, come let us find out. He has stated

that witness-Sahodar Devi had also mentioned the names of Bellas and

Sureshwar among the accused persons, namely, Belas, Bhola, Gatauri and

Sudeshwar, but did not mention the names of the remaining two. She had

not only asked Ganesh Ram, Shyamsundar Ram, Ramchandra Ram,

Gatauri Ram and Bhola Ram to take axes in their hands, but had also

asked them to take sticks and axes. She had not said that Sudeshwar, Belas

and Arjun had only sticks in their hands, rather she said that only Belas

had sticks and axes in his hands along with the other accused. She did not

even say that the accused had tied the hands of her brother-in-law, husband

and nephew. She did not even say that the criminals killed her husband,

rather she said that it seemed as if criminals had murdered her husband.

He has stated that witness Sahbir (informant) had said about sleeping

outside the house. He did not say about sleeping at the door. Sahbir Ram

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did not say about flashing torch while tying the hands. He also did not say

that there were cut marks on father’s forehead and there were bruises at

many places on his body.

He has further deposed that on 25.05.96, there was a ritual

(Mandapachhadan) at the house of Ramchandra Ram son of Bhoolan Ram

and the deceased Sita Ram had also gone there from where he was

kidnapped by the extremists. He has not done any investigation on this

possibility. He further deposed that it is wrong to say that he has not done

the investigation properly and has filed chargesheet against innocent

persons. He further deposed that he did not find any criminal history of the

culprits.

20. PW2-Jwala Prasad Singh is the doctor who conducted postmortem

over the body of the deceased. He has found the following injuries on his

person:

(i) Incised wound 6″ inch at the base of skull and neck,
upper part cutting through skin, surprisal tissues,
cervical vertebra and spinal cord.

(ii) Incised wound 4 ½ ” front neck cutting through skin
tissues, Vessels of neck vertebra and spinal cord. Head
suspended by neck by twofold of skin.

(iii) Incised wound 4″ x 3″ on left shoulder deep to bone
of survical vertebra,

(iv) Incised wound 1½” x ¾” on upper part of front
chest middle region,

(v) Abrasion 1″ x ½ ” on front of right index finger.

(vi) Abrasion ½ ” x ½ ” on dorsum of right middle finger
hand part.

(vii) Abrasion 3″ x 2″ interior aspect right knee.

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(viii) Abrasion 1″ x ¾ ” interior aspect of right leg above
knee.

(ix) Abrasion 1″ x 1/2″ on dorsum left ankle interior
aspect.

(x) Bruise 3″ x 1″ on interior aspect of left knee.

(xi) Incised wound 1″ x ¼ ” x ½ ” deep on left hand
between thumb and index finger.

In the opinion of the doctor, the death was caused due to shock and
hemorrhage caused by injury nos. (i), (ii) and (iii). Injury nos. (i), (ii), (iii),

(iv) and (xi) are caused by sharp cutting heavy weapon and others by hard
and blunt substance. Time elapse since death was 24 to 36 hours. This
report is in my pen and signature which has been exhibited and marked as
Ext. 4.

21. PW3-Surendra Ram is cousin of the informant. He has stated that the

incident took place on the night of Saturday and Sunday of 25.05.1996. At

that time, he was sleeping in the courtyard of his house. When he came

out after hearing the noise, his father Ramprit Ram, cousin brother Sahbir

Ram and real brother Lalit Ram told him that people of village Bhadra

have captured the uncle Sitaram Paswan and took him eastwards towards

Koel River. Since the accused persons had threatened his father and uncle,

no one went out to look for them. In the morning, while searching, they

found uncle’s dead body in Koel River. They brought the dead body to the

house. The inspector came and made a carbon copy of the dead body’s

papers and got my signature and Kalpu Ram’s thumb impression on it. He

identified his signature on it which has been marked as Ext-3.

During cross-examination, this witness has stated that his house and

the house of his uncle (deceased), namely, Sita Ram Paswan are at a

distance of half KM. He was sat at his door. His father, cousin and real

brother also went there. He reached uncle’s house later. The police did not

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take his statement, only took his signature. The place where the dead body

was found was in Koel River which is one KM from Sita Ram’s house. He

has stated that he, his family members, his uncle, real brother, Farooq Mian

and Gulab Mian were present at the place where the dead body was found.

Again, he has stated that all the people of the village had gone there and

they brought the dead body to the door of the house at 12 noon. Other

family members also came along. The police arrived at 5 PM. He did not

go to the police station. The police took statements from 4-5 people and at

that time they were present there. There were eight members in his uncle

Sita Ram’s family, who also went to look for the body. Sahbir (the

informant) is his cousin brother (his uncle Sita Ram’s son). Sahbir also

returned with the dead body. When the police came, his statement was also

recorded. He admitted that no search was conducted anywhere on the night

of the incident nor any information was given. He has stated that the police

station is about 10 KM away from his village.

22. PW4-Lalit Ram is said to be an eye witness of the occurrence. He has

stated that the incident was of 25.05.1996. It was a Saturday. It was 1:00

O’clock in the night. At that time, he was sleeping at his door along with

Sahbir Ram (the informant), Rampreet Ram and Sita Ram. Sahbir was

sleeping on his cot. At that time, ten persons came and surrounded their

cots. He has deposed that he woke up after hearing their footsteps. The

accused persons tied his hands as also his father Ram Preet Ram’s and Sita

Ram’s hands with their own towels. Among the accused, Ganesh Ram had

a balua in his hand. Apart from him, Ramchandra Ram, Ramsundar Ram,

Gatouri Ram and Bhola Ram also had balua in their hands. Sudeshwar

Ram and Sunil had armed with pistols. Belas Ram, Arjun Ram and

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Sudeshwar Ram had sticks in their hands. He has stated that the accused-

Sudeshwar is also called “Udeshwar” by people. The criminals also had

torches in their hands with which they searched us and tied our hands with

a towel. He has stated that he could identify the accused in the light of the

torch. The accused caught Sita Ram and took him away and said that you

are acting like a hero, you are pretending to be a gangster, come let us find

out. Those people also threatened by saying that if you raise hullah, we

will kill you too. The accused took Sita Ram to the east. He has stated that

due to fear, they did not go to look for Sita Ram at night rather they went

to search in the morning (dawn). Around 12 noon, the dead body was

found on the western bank of Koel River. The neck of the body was cut

from the back and front. There was a cut on the forehead also. The body

was also peeled in many places. They brought the dead body from there

to the house of the deceased. This witness identified the accused persons.

The witness has identified his signature on the fardbeyan which has been

marked as Ext-5.

During cross-examination, this witness has stated that the police took

his statement on the second day of the incident at 6 (six) O’clock in the

evening at the door of his house. After his statement, the police took

statements of other people also at the same time. His statement was

recorded first. Again, this witness has stated that first Sahbir’s statement

was recorded, then Rampreet Ram’s and then his statement was recorded.

Apart from the above three persons, Sahodari Devi’s statement was also

recorded on that day. At para-6, he has stated that he told the police that

Sahbir slept on the cot with him. He has also stated that the accused had

tied their hands with their own towels. He has also stated before the police

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that the accused were looking for a towel (gamchi) in the light of a torch.

It was also said that the accused told Sitarama that you pretend to be a hero,

you pretend to be a gangster, come let us find out. There were cuts on the

forehead and bruises on many parts of the body. He also told the police

that Ganesh Ram, Ramchandra Ram, Ram Sundar Ram, Gatouri Ram and

Bhola Ram had balua in their hands.

At para-7 he has stated that he has five brothers, their names are

Surendra Ram, Mahendra Ram, Rajendra Ram and Birendra Ram. His

brothers were living in the village at the time of the incident. After the

accused left with Sitaram, he told to his brothers at 4:00 AM. At that time

his two brothers, namely, Mahendra and Rajendra were out for work. He

told his brothers about the occurrence who were present about the incident.

He further stated that only Birendra and Surendra were at home to whom

he told about the incident.

At para-8 this witness has stated that Sita Ram (the deceased) is his own

uncle and Sahbir Ram is his cousin. His uncle’s house is separate but

adjacent to his house, across the street. He has stated that the doors of both

houses are different. He has stated that the nearby his house, the house of

Alpu Ram and Chalitar Ram are situated. He has further stated that behind

them, there are the houses of 15-20 other people. After the incident, they

kept quiet out of fear and did not inform anyone. He has stated that when

they informed in the morning about the occurrence, 4-5 people came and

at that time this witness was present along with his father and Sahbir Ram.

At para-9 he has stated that he along with Sahbir, Binod and Avdhesh

went to search out his uncle but Surendra did not go. The body was found

at a distance of 2 KM. He has stated that the blood was spilled at the place
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where the body was found. At para-10, he has stated that the village of the

accused is next to our village. He has further stated that on the last Holi,

there was a fight between the accused persons and their family. Accused,

namely, Gatauri had also filed a case of assault against them. He has stated

that there is no Chowkidar in his village. He has further stated that the

chowkidar did not come on that day. He has stated that chowkidar came at

12 noon on the second day of the incident. He has stated the name of

chowkidar is Ramyas. He has further stated that they did not tell him about

the incident because they were crying at that time.

At para-11, he has stated that his other brothers were sleeping at a

distance of 10 feet from him. He has denied by saying that it is wrong to

say that due to old enmity they have implicated the accused in a false case.

It is also wrong to say that the accused have no connection with Sitaram’s

kidnapping and murder.

23. PW5-Sahodar Devi is the wife of the deceased. She has corroborated

the statement of the informant about the occurrence.

At para-1 she has deposed that the occurrence took place about one year

ago on the day of Muharram and it was night. She was at the dhaba

(courtyard) near her house. She has stated that she slept after eating. She

heard a noise at the door and found that the accused were saying that her

husband (the deceased) was acting like a hero and a braggart. When she

came out, she saw that Ganesh, Ram Sundar, Ram Chandra, Gantori and

Bhola had axes in their hands, Suneshwar and Sunil had pistols in their

hands. She has further stated that Sudeshwar, Belas and Arjun had armed

with lathi. The accused tied the hands of her brother-in-law- Ram Preet,

her husband-Sita Ram and nephew-Lalit and took her husband to east
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towards the Koel River. They killed her husband. The accused were

flashing torches and she identified them in its light. The accused were

threatening to kill her if she spoke or made a noise. The accused persons

were identified by the witness at the dock. She has further stated that no

one went in search of her husband at night, but when the male members of

the family went in the morning, they found the dead body. There were cuts

on the front and back of the neck of the dead body and peeling at many

places on the body.

During cross-examination, this witness has stated that the police had

asked her on the morning of the incident (the very next day). She told the

police about the names of the accused Belas, Bhola, Ganauri and

Sudeshwar. She also told the police that the accused, namely, Ganesh,

Ramchandra, Ramsundar, Bhola and Gatouri had axes in their hands. It

was also said that Sudeshwar, Belas and Ramchandra had sticks in their

hands. She has stated that she told the police that the accused had tied the

hands of her husband, brother-in-law and nephew. It was also said that the

accused killed her husband. She has stated that she heard that the accused

were saying that her husband is becoming a hero and a braggart.

She has further deposed that she slept inside the house. The Dhaba is

inside the house. She saw the accused from a distance of 10 steps. All the

accused had surrounded Sitaram from all sides. She has stated that she

raised an alarm but the villagers did not gather on hearing her alarm. The

accused were threatened her and told not to make much noise and keep

quiet.

She has deposed that no one from the village was found on the night

of the incident. At that time, she met with her brother-in-law and nephew.
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She has further stated that her nephew was at the door. She has stated that

her brother-in-law’s house is next to her house. She has further stated that

her brother-in-law and his wife were at the door of my brother-in-law’s

house and there were women inside. She has denied that she did not talk

to the women of her brother-in-law’s house at night, rather she talked to

them on the next day. She has stated that she told them about the incident

the names of the accused. She has stated that she knew the accused before

the incident. She has further stated that the accused persons used to come

to her house. She has stated that she had seen them a month prior to the

incident when they came to her house. There was no special reason for

their visit. She has stated that they had come inside the house. She has

further stated that before the incident, during ‘Holi’ festival, her family

members had a fight with the accused due to which there was a tussle

between both the parties. The accused-Gatouri had also filed a case against

her husband (the deceased). She has denied that it is wrong to say that she

has not seen any incident and she is giving false testimony. She has further

denied that it is wrong to say that since Gatouri had filed a case against her

husband, they have falsely implicated the accused persons also.

24. PW7-Ramprit, the uncle of the informant, has been tendered for cross-

examination.

25. PW-8 Mahadeo Paswan has been declared hostile at the instance of

the prosecution.

Evidence on behalf of the Accused-Defence:

26. DW1- Ramchandra Paswan is a co-villager. He has stated that last

year he got his daughter Lalmuni Kumari married to Uday Kumar of Dihra

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village. He has stated that the marriage took place on 25.05.1996 in which

he had invited the people of the village there. He has deposed that the

deceased-Sitaram, son of Jagdev Ram, had come to his village for

‘Madawa’ on that day. It was 12 O’clock at night. The priest was staying

there so the ‘Madawa’ rituals started late at night. He has stated that on

that night there was sound of gunshot outside. On hearing the same, he

closed his door and they (criminals) started banging on the door. On being

asked what was the matter, they told this witness that a man had come.

When he asked his name, they told him that his name is Sitaram. They told

him that they were party men (Extremists). He has stated that he opened

the door and sent Sitaram to meet them. When Sitaram went to meet them,

they caught him He has stated that on this, he closed his door. He has

stated that they caught Sitaram and took him away. In the morning, he got

an information that Sitaram’s family members were searching for him.

Later, he was found dead. He has further stated that he did not recognize

the people of Party Unity who came to his door. He has stated that he had

performed ‘Tilak’ ceremony of his daughter before the wedding in which

he received a’Laganpatri’ He has identified the ‘Laganpatri’ and said that

it was written by Pandit Jamunadhar Pandey of Kosdihra, whom he

recognized. The witness identified the accused present and said that these

people are from the village next to his village.

During cross-examination, this witness has stated that the statement

which he gave today was not given anywhere else or to the police before.

He has stated that he has five sons and two daughters out of them, he

already solemnized marriage of two sons and two daughters but he cannot

remember the date, month and day of marriage of the sons and the

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daughters. He has further stated that the information about taking Sitaram

away by the extremists was not given to his family members as a member

of his family was present there so information was not given. He has stated

that he did not even go out to look for Sitaram.

At para-4 of his cross-examination, this witness has stated that on that

day the time for the ‘Madawa’ was 12 midnight. There were three other

men from the village in the ‘Madawa’. They were Preet Ram, Kalpu Ram

and Surendra Ram. Apart from them, there were Pandits, Thakurs and

Chamars. Chadil Pandit was from Devdih village and Surya Thakur was

from Bhadra. He has stated that when the party people (extremists) took

Sitaram away, he did not raise hullah.

At para-5 he has stated that he did not come out when the party

members arrived as they got the door closed. He further deposed that he

did not know how many people had come. He has further stated that he

cannot say whether the Panditji who wrote the ‘Janamkundli’ is alive or

dead. The time of Madwa or Dhritadhari is not mentioned in

‘Janamkundli’. He has further stated that there were eight accused persons

in this case.

At para-6 he has stated that Sita Ram was murdered but he did not

know who killed them and even he did not try to find out. He has stated

that he is living alone in the village and he has no agnates. He has stated

that his grandfather came and settled in that village. He has further stated

that he does not have any land anywhere. He has stated that they were

ploughing the agricultural fields on sharecropping basis. He has stated that

he never went to the house of the accused but they meet regularly and had

conversations with them. He has stated that he came to the Court on
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receiving summons of the Court (Court’s letter). He has stated that Ram

Belas gave him that letter and also gave the fare. He has stated that he ate

the food with his own money. He has denied that it is wrong to say that he

is a disciple and friend of the accused and, as such, he has given false

testimony on their behalf.

27. DW2-Ram Janam Ram Paswan has stated that he knew Ram Chandra

Ram son of Bhoolan Ram of Kurakatta. Ram Chandra’s daughter’s

wedding was on 25.05.1996 in which he went there. Sita Ram of Kurakatta

village was also there who was at his door. He has stated that it was 12

O’clock at night. He has stated that Ramchandra Ram’s house is 100 feet

west of Sita Ram’s house. He has stated that ‘Haldi’ ceremony was being

performed and he was sitting at the door of Charitra Ram’s house which is

adjacent to their house.

At para-2 he has stated that seven unknown persons came there.

They first went to Ramchandra Ram’s door and then came to them from

the east and pointed a pistol at them. When they asked the reason for this,

they said that they were party men. After that, they went to Sita Ram’s

house and started beating him up, upon which Sita Ram went to

Ramchandra’s house. The extremists fired a shot and knocked at

Ramchandra Ram’s door and when Ramchandra opened the door, they said

that they were searching Sita Ram, so bring him out. When Sita Ram came

out, they caught hold of him, started beating her 2-3 times with sticks and

took him away to the east.

At para-3 he has stated that in the morning, they got information that

Sitaram was murdered and his body was thrown into the river. The family

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members brought the body to their door. This witness also went to see the

body on the next day (after the incident) at 10-11 AM.

During cross-examination, this witness has stated that the accused-

Belas is his brother and among the accused persons, there are his two

nephews, namely, Sunil and Bhola and the rest are also from the same

village. He has stated that he never went to police station for recording of

his statement. He has stated that he has been served a notice of the Court.

He has denied that it is wrong to say that he gave false testimony to save

his brother and nephew.

28. Learned trial Court, based upon the testimonies of witnesses, has passed

the judgment of conviction and has convicted the appellants under Section

148, 302/149 of the Indian Penal Code and sentenced to undergo RI for

two years for the offence under section 148 of the Indian Penal Code and

imprisonment for life under section 302/149 of the Indian Penal Code and

all the sentences shall run concurrently.

29. This Court, on the basis of aforesaid factual aspect vis-à-vis argument

advanced on behalf of parties, is now proceeding to examine the legality

and propriety of impugned judgment of conviction and order of sentence

by formulating following questions to be answered by this Court:

(I). Whether the prosecution has been able to prove the charge beyond
all shadow of doubt?

(II). Whether the prosecution has been able to prove the charges leveled
against the appellants as the fact of the given case is?

(III). Whether the present case which is based upon the circumstantial
evidence and where there is no any direct evidence available, then the
order of conviction under Section 302/149 is sustainable in the eye of
law ?

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30. Since all the issues are inter-linked with each other and as such they are

being taken together by taking into consideration the facts of the given

case including the testimony of witnesses as also settled proposition of

law.

31. Before venturing to the merit of the case it would be apt to discuss

herein the settled proposition of law on the issue of circumstantial

evidence based up the last seen theory.

32. The Hon’ble Apex Court in the year 1952, in the judgment rendered in

Hanumant Son of Govind Nargundkar vs. State of Madhya Pradesh

[AIR 1952 SC 343] has laid down the parameters under which, the case

of circumstantial evidence is to be evaluated, which suggests that: “It is

well to remember that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to be

drawn should in the first instance be fully established, and all the facts so

established should be consistent only with the hypothesis of the guilt of

the accused. Again, the circumstances should be of a conclusive nature

and tendency and they should be such as to exclude every hypothesis but

the one proposed to be proved. In other words, there must be a chain of

evidence so far complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it must be

such as to show that within all human probability the act must have been

done by the accused. ……”

33. The judgment referred in Hanumant (supra) has been consistently

followed by Hon’ble Apex Court in the judgment rendered in Tufail

(Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC 198]; Ram

Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and Sharad

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Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC 116 and

also in Musheer Khan alias Badshah Khan & Anr. Vs. State of

Madhya Pradesh [(2010) 2 SCC 748.

34. The Hon’ble Apex Court in Musheer Khan (Supra) while discussing

the nature of circumstantial evidence and the burden of proof of

prosecution has held as under paragraph nos. 39 to 46 as under:

“39. In a case of circumstantial evidence, one must look for
complete chain of circumstances and not on snapped and
scattered links which do not make a complete sequence. This
Court finds that this case is entirely based on circumstantial
evidence. While appreciating circumstantial evidence, the Court
must adopt a cautious approach as circumstantial evidence is
“inferential evidence” and proof in such a case is derivable by
inference from circumstances.

40.Chief Justice Fletcher Moulton once observed that “proof
does not mean rigid mathematical formula” since “that is
impossible”. However, proof must mean such evidence as would
induce a reasonable man to come to a definite conclusion.
Circumstantial evidence, on the other hand, has been compared
by Lord Coleridge “like a gossamer thread, light and as
unsubstantial as the air itself and may vanish with the merest of
touches”. The learned Judge also observed that such evidence
may be strong in parts but it may also leave great gaps and rents
through which the accused may escape. Therefore, certain rules
have been judicially evolved for appreciation of circumstantial
evidence.

41. To my mind, the first rule is that the facts alleged as the basis
of any legal inference from circumstantial evidence must be
clearly proved beyond any reasonable doubt. If conviction rests
solely on circumstantial evidence, it must create a network from
which there is no escape for the accused. The facts evolving out
of such circumstantial evidence must be such as not to admit of
any inference except that of guilt of the accused. (See Raghav
Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1
Cri LJ 70] )

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42. The second principle is that all the links in the chain of
evidence must be proved beyond reasonable doubt and they must
exclude the evidence of guilt of any other person than the accused.
(See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC
300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para

20.)

43. While appreciating circumstantial evidence, we must
remember the principle laid down in Ashraf Ali v. King Emperor
[21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a
criminal case there is conflict between presumption of innocence
and any other presumption, the former must prevail.

44. The next principle is that in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the
innocence of the accused and are incapable of explanation upon
any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on
circumstantial evidence, as in this case, presumption of
innocence of the accused must have a dominant role. In Nibaran
Chandra Roy v. King Emperor [11 CWN 1085] it was held that
the fact that an accused person was found with a gun in his hand
immediately after a gun was fired and a man was killed on the
spot from which the gun was fired may be strong circumstantial
evidence against the accused, but it is an error of law to hold that
the burden of proving innocence lies upon the accused under such
circumstances. It seems, therefore, to follow that whatever force
a presumption arising under Section 106 of the Evidence Act may
have in civil or in less serious criminal cases, in a trial for murder
it is extremely weak in comparison with the dominant
presumption of innocence.

46. The same principles have been followed by the Constitution
Bench of this Court in Govinda Reddy v. State of Mysore [AIR
1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted
the principles laid down in Hanumant Govind Nargundkar v.
State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ
129] The ratio in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 :

1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in
Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are:

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“5. … „10. … in cases where the evidence is of a circumstantial
nature, the circumstances [which lead to the conclusion of guilt
should be in the first instance] fully established, and all the facts
so established should be consistent only with the hypothesis of the
guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be [shown] that
within all human probability the act must have been [committed]
by the accused.‟ [ As observed in Hanumant Govind Nargundkar
v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-

46, para 10.] ” The same principle has also been followed by this
Court in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607
: 1974 SCC (Cri) 643 : AIR 1974 SC 1144] “

35. Thus, it is evident that for proving the charge on the basis of

circumstantial evidence, it would be necessary that evidence so available

must induce a reasonable man to come to a definite conclusion of proving

of guilt; meaning thereby there must be a chain of evidence so far it is

complete as not to leave any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such as to show that

within all human probability the act must have been done by the accused.

36. There is no dispute regarding the settled position of law that in the case

of circumstantial evidence, the chain is to be complete then only there will

be conviction of the concerned accused person but, the circumstances

should be of a conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be proved. In other

words, there must be a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent with the innocence of

the accused and it must be such as to show that within all human

probability the act must have been done by the accused.

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37. The same view has been taken by the Hon’ble Apex Court in Bakhshish

Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon’ble Apex

Court has observed that the principle in a case resting on circumstantial

evidence is well settled that the circumstances put forward must be

satisfactorily proved and those circumstances should be consistent only

with the hypothesis of the guilt of the accused. These circumstances

should be of a conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be proved. In other

words, there must be a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent with the innocence of

the accused and it must be such as to show that within all human

probability the act must have been done by the accused.

38. The Hon’ble Apex Court while laying down such proposition in the said

case has considered the factual aspect revolving around therein and while

considering the fact has only found the incriminating evidence against the

appellant was his pointing the place where the dead body of the deceased

had been thrown which the Hon’ble Apex Court has not considered to be

circumstantial evidence though undoubtedly it raises a strong suspicion

against the appellant. the Hon’ble Apex Court while coming to such

conclusion has observed that even if he was not a party to the murder, the

appellant could have come to know the place where the dead body of the

deceased had been thrown. Hence anyone who saw those parts could have

inferred that the dead body must have been thrown into the river near about

that place. In that pretext, the law has been laid down at paragraph-9

thereof, which reads as under:

“9. The law relating to circumstantial evidence has been stated by
this Court in numerous decisions. It is needless to refer to them as

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the law on the point is well-settled. In a case resting on
circumstantial evidence, the circumstances put forward must be
satisfactorily proved and those circumstances should be consistent
only with the hypothesis of the guilt of the accused. Again those
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must
have been done by the accused.”

39. It is, thus, evident from the close analysis of the aforesaid judgments

that the following conditions must be fulfilled before a case against an

accused can be said to be fully established:

(i) the circumstances from which the conclusion of guilt is to be drawn

should be fully established.

(ii) 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.

(iii) the circumstances should be of a conclusive nature and tendency,

(iv) they should exclude every possible hypothesis except the one to be

proved, and

(v) 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.

40. The authoritative judgment in the aforesaid context is the Sharad

Birdhichand Sarda vs. State of Maharashtra, (supra) wherein the

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Hon’ble Apex Court has held all the above five principles to be the golden

principles which constitute the “panchsheel” of the proof of a case based

on circumstantial evidence. The Hon’ble Apex Court in the said case as

under paragraph-155, 156, 157, 158 and 159 has been pleased to hold that

if these conditions are fulfilled only then a Court can use a false

explanation or a false defence as an additional link to lend an assurance to

the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the

said judgment read as under:

“155. It may be interesting to note that as regards the mode of
proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus delicti, the statement of law as to proof of
the same was laid down by Gresson, J. (and concurred by 3 more
Judges) in King v. Horry [1952 NZLR 111] thus: “Before he can
be convicted, the fact of death should be proved by such
circumstances as render the commission of the crime morally
certain and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and compelling as to
convince a jury that upon no rational hypothesis other than
murder can the facts be accounted for.”

156. Lord Goddard slightly modified the expression “morally
certain” by “such circumstances as render the commission of the
crime certain”.

157. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only when
there is certain and explicit evidence and no person can be
convicted on pure moral conviction. Horry case [1952 NZLR
111] was approved by this Court in Anant Chintaman Lagu v.
State of Bombay [AIR 1960 SC 500] Lagu case [AIR 1960 SC
500] as also the principles enunciated by this Court in Hanumant
case [(1952) 2 SCC 71] have been uniformly and consistently
followed in all later decisions of this Court without any single
exception. To quote a few cases — Tufail case [(1969) 3 SCC
198] , Ramgopal case [(1972) 4 SCC 625] , Chandrakant
Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of
1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal

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No 98 of 1958,]. There are a number of other cases where
although Hanumant case [(1952) 2 SCC] has not been expressly
noticed but the same principles have been expounded and
reiterated, as in Naseem Ahmed v. Delhi Administration [(1974)
3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [(1974) 4
SCC 607,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra
[(1981) 2 SCC 35, 39] and M.G. Agarwal v. State of Maharashtra
[AIR 1963 SC 200 : (1963) 2 SCR 405,] — a five-Judge Bench
decision.

158. It may be necessary here to notice a very forceful argument
submitted by the Additional Solicitor General relying on a
decision of this Court in Deonandan Mishra v. State of Bihar [AIR
1955 SC 801] to supplement his argument that if the defence case
is false it would constitute an additional link so as to fortify the
prosecution case. With due respect to the learned Additional
Solicitor-General we are unable to agree with the interpretation
given by him of the aforesaid case, the relevant portion of which
may be extracted thus: “But in a case like this where the various
links as stated above have been satisfactorily made out and the
circumstances point to the appellant as the probable assailant,
with reasonable definiteness and in proximity to the deceased as
regards time and situation. such absence of explanation or false
explanation would itself be an additional link which completes
the chain.”

159. It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said
earlier viz. before a false explanation can be used as additional
link, the following essential conditions must be satisfied: (1)
various links in the chain of evidence led by the prosecution have
been satisfactorily proved, (2) the said circumstance points to the
guilt of the accused with reasonable definiteness, and (3) the
circumstance is in proximity to the time and situation.”

41. The foremost requirement in the case of circumstantial evidence is that

the chain is to be completed. In Padala Veera Reddy v. State of A.P. [1989

Supp. (2) SCC 706], the Hon’ble Apex Court held that when a case rests

upon circumstantial evidence, the following tests must be satisfied:

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“10. … (1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established; (2)
those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; (3) the circumstances,
taken cumulatively, should form a chain 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; and (4)
the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be
inconsistent with his innocence.”

42. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259], it

has been laid down by the Hon’ble Apex Court as that the circumstances

from which the conclusion of guilt is to be drawn should be fully proved

and those circumstances must be conclusive in nature to connect the

accused with the crime. Relevant paragraph of the aforesaid judgment is

being quoted as under:

“4. … the circumstances from which the conclusion of guilt is to
be drawn should be fully proved and those circumstances must be
conclusive in nature to connect the accused with the crime. All
the links in the chain of events must be established beyond a
reasonable doubt and the established circumstances should be
consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In a case based on
circumstantial evidence, the court has to be on its guard to avoid
the danger of allowing suspicion to take the place of legal proof
and has to be watchful to avoid the danger of being swayed by
emotional considerations, howsoever strong they may be, to take
the place of proof.”

43. In Harishchandra Ladaku Thange v. State of Maharashtra [(2007)

11 SCC 436], while dealing with the validity of inferences to be drawn

from circumstantial evidence, it has been emphasized by the Hon’ble

Apex Court that where a case rests squarely on circumstantial evidence,

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the 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 and further the circumstances from

which an inference as to the guilt of the accused is drawn have to be proved

beyond reasonable doubt and have to be shown to be closely connected

with the principal fact sought to be inferred from those circumstances.

44. In Ram Singh v. Sonia (2007) 3 SCC 1, while referring to the settled

proof pertaining to circumstantial evidence, the Hon’ble Apex Court

reiterated the principles about the caution to be kept in mind by Court. It

has been stated therein as follows:

“39. … in a case depending largely upon circumstantial evidence,
there is always a danger that conjecture or suspicion may take
the place of legal proof. The court must satisfy itself that various
circumstances in the chain of events have been established clearly
and such completed chain of events must be such as to rule out a
reasonable likelihood of the innocence of the accused. It has also
been indicated that when the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot
in any manner, establish the guilt of the accused beyond all
reasonable doubts.”

45. In Ujjagar Singh v. State of Punjab (2007) 13 SCC 90, after referring

to the aforesaid principles pertaining to the evaluation of circumstantial

evidence, the Hon’ble Apex Court observed as under:

“14. … It must nonetheless be emphasised that whether a chain
is complete or not would depend on the facts of each case
emanating from the evidence and no universal yardstick should
ever be attempted.”

46. The Hon’ble Apex Court in the case of Laxman Prasad @ Laxman

vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of 2012

dated 14.06.2023 has held at paragraphs-3 & 4 as follows:

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“3. We do not find such conclusion of the High Court to be strictly
in accordance with law. In a case of circumstantial evidence, the
chain has to be complete in all respects so as to indicate the guilt
of the accused and also exclude any other theory of the crime. The
law is well settled on the above point. Reference may be had to
the following cases: (i) Sharad Birdhichand Sarda vs. -State of
Maharashtra,(1984) 4 SCC 116; (ii) Sailendra Rajdev Pasvan vs.
State of Gujarat Etc., AIR 2020 SC 180.

4. Thus, if the High Court found one of the links to be missing and
not proved in view of the settled law on the point, the conviction
ought to have been interfered with.”

47. Thus, it is evident that for proving the charge on the basis of

circumstantial evidence, it would be necessary that evidence so available

must induce a reasonable man to come to a definite conclusion of proving

of guilt; meaning thereby there must be a chain of evidence so far it is

complete as not to leave any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such as to show that

within all human probability the act must have been done by the accused.

48. A theory of “accused last seen in the company of the deceased” is a

strong circumstance against the accused while appreciating the

circumstantial evidence. In such cases, unless the accused is able to

explain properly the material circumstances appearing against him, he can

be held guilty for commission of offence for which he is charged.

49. The Hon’ble Apex Court in the case of Satpal v. State of Haryana,

(2018) 6 SCC 610 has observed that when there is no eyewitness to the

occurrence but only circumstances coupled with the fact of the deceased

having been last seen with the appellant, the Criminal jurisprudence and

the plethora of judicial precedents leave little room for reconsideration of

the basic principles for invocation of the last seen theory as a facet of

circumstantial evidence. Succinctly stated, it may be a weak kind of
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evidence by itself to found conviction upon the same singularly. For ready

reference the relevant paragraph is being quoted as under:

“6. We have considered the respective submissions and the
evidence on record. There is no eyewitness to the occurrence but
only circumstances coupled with the fact of the deceased having
been last seen with the appellant. Criminal jurisprudence and the
plethora of judicial precedents leave little room for
reconsideration of the basic principles for invocation of the last
seen theory as a facet of circumstantial evidence. Succinctly
stated, it may be a weak kind of evidence by itself to found
conviction upon the same singularly. But when it is coupled with
other circumstances such as the time when the deceased was last
seen with the accused, and the recovery of the corpse being in
very close proximity of time, the accused owes an explanation
under Section 106 of the Evidence Act with regard to the
circumstances under which death may have taken place. If the
accused offers no explanation, or furnishes a wrong explanation,
absconds, motive is established, and there is corroborative
evidence available inter alia in the form of recovery or otherwise
forming a chain of circumstances leading to the only inference
for guilt of the accused, incompatible with any possible
hypothesis of innocence, conviction can be based on the same. If
there be any doubt or break in the link of chain of circumstances,
the benefit of doubt must go to the accused. Each case will
therefore have to be examined on its own facts for invocation of
the doctrine.”

50. In the backdrop of the aforesaid discussed settled legal position this

Court is now adverting to the factual aspect of the instant case in order to

find that whether charges against the present appellants have been proved

beyond reasonable doubt.

51. Admittedly the entire alleged occurrence is of two parts, first is related

to the alleged abduction of the deceased from his house and second part is

related to the murder of the abducted victim at bank of the Koel River. So

far, the second part of occurrence is concerned admittedly there is no

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eyewitness or direct evidence of the alleged occurrence meaning thereby

the second part of the alleged occurrence has not been witnessed by any

one of the prosecution witnesses and the same is based upon the

circumstantial evidence coupled with the last seen theory.

52. Admittedly herein the learned trial Court has not convicted the

appellants under Section 364 IPC rather the appellants have been

convicted under Section 302/149 and 148 IPC. Further the defence has

examined two witnesses as DW1 and DW2 in order to disprove the

prosecution case.

53. At this juncture it needs to refer herein that as per the law settled the

defence witness is also to be given equal weightage as is to be given to the

prosecution witnesses as has been held by Hon’ble Apex Court in the case

of Munshi Prasad v. State of Bihar, reported in (2002) 1 SCC 351 at

para 3 which reads hereunder as: —

3. Without attributing any motive and taking the evidence on its

face value, therefore, it appears that the place of occurrence was

at 400-500 yards from the place of Panchayat and it is on this

piece of evidence, the learned advocate for the State heavily relied

upon and contended that the distance was far too short so as to be

an impossibility for the accused to be at the place of occurrence

— we cannot but lend concurrence to such a submission : a

distance of 400-500 yards cannot possibly be said to be “presence

elsewhere” — it is not an impossibility to be at the place of

occurrence and also at the Panchayat meet, the distance being as

noticed above : the evidence on record itself negates the plea and

we are thus unable to record our concurrence as regards

acceptance of the plea of alibi as raised in the appeal. Before

drawing the curtain on this score, however, we wish to clarify

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that the evidence tendered by the defence witnesses cannot

always be termed to be a tainted one by reason of the factum

of the witnesses being examined by the defence. The defence

witnesses are entitled to equal respect and treatment as that

of the prosecution. The issue of credibility and

trustworthiness ought also to be attributed to the defence

witnesses on a par with that of the prosecution — a lapse on

the part of the defence witnesses cannot be differentiated and

be treated differently than that of the prosecutors’ witnesses”

54. Further, the Hon’ble Apex Court has reiterated the same view in a

judgment rendered in the case of Mahendra Singh v. State of Madhya

Pradesh reported in (2022) 7 SCC 157.

55. Now coming to the testimony of the prosecution witness wherefrom it

is evident that there was inimical relationship between the

appellants/accused and the informant as accused Gatauri Ram had lodged

a Criminal case against the informant and others prior to the date of the

alleged occurrence.

56. Admittedly, it has come on record that the informant and his cousin

brothers had narrated the story and involvement of the appellants to the

co-villagers namely, Mahendra Ram, Rajendra Ram, Birendra Ram,

Chalitar Ram, Faruque Mian, Gulabi Mian, Binod, Awadhesh and others

on the next morning, but none of them has been examined by the

prosecution as witness.

57. Further it has come on the record that the Investigating Officer had not

found the dead body in the Koel River neither any incriminating material

has been found at the alleged place of occurrence. He had deposed that

the bloodstain was found at the alleged second crime scene which had

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been wiped off by footsteps and it was not worth confiscating. He has

deposed that he came to know about the second crime scene through the

informant who was with him at that time. He has categorically stated that

during the investigation he found that before the incident, on the occasion

of Holi, the accused in this case, namely, Gatori Ram had filed a case of

assault against the informant and others, in which after investigation a

charge sheet was also filed by the police.

58. It has come on record that PW6 informant has also deposed that due to

fear, he could not try to trace out his father and further stated that when he

along with others went out to search his father at 3 AM, they found his

father’s body in the Koel River at about 12 Noon. At para-6 of his cross-

examination, this witness has stated that on that fateful night after the

incident, he did not talk to anyone about the occurrence, rather he talked

about the said occurrence to Faruque Mian, Gulab Mian, Kalpu, Ramprit

and Surendra Ram in the very next morning before going to search out his

father and admittedly none of the said persons have been examined as

prosecution witness.

59. Thus, the conduct of the informant in the instant case cannot be

accepted as natural conduct because the accused person even threatened

the deceased but the family members of the deceased had not gone to

search out the deceased immediately rather, they had gone to search him

after hours of the said occurrence.

60. Further at para-7 of the cross-examination he had stated that he did not

inform the Chaukidar as they were crying at that time. He has also stated

that he has not informed the police rather the police on information of its

own has reached his house. At para-9 he had stated that the accused

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persons are from the village across the river and admitted the fact that

before the said occurrence Gatauri Ram (one of the accused) has instituted

a case against them. Thus, in the aforesaid circumstances question arises

herein that if the appellant/accused were known to informant and his

family then why not the informant informed the chaukidar or the police at

the earliest.

61. It needs to refer herein that the P.W.3 who is cousin of the informant

had stated in his testimony that the incident took place on the night of

Saturday and Sunday of 25.05.1996 and at that time he was sleeping in the

courtyard of his house and when he came out after hearing the noise, his

father Ramprit Ram(P.W.7), cousin brother Sahbir Ram(informant) and

real brother Lalit Ram(P.W.4) told him that people of village Bhadra have

captured the uncle Sitaram Paswan and took him eastwards towards Koel

river, for ready reference the relevant paragraph of the testimony of this

witness is being quoted as under:

1. घटना 25.05.96 शननवार के रनवार के बीच की रानि का है। मैं अपने घर
के आं गन में सोया था। हल्ला सुनकर बाहर ननकला तो रामनित राम मेरे
नपताजी, चचेरा भाई सहबीर राम, सगे भाई लनलत राम बताए नक ग्राम भडरा
के लोग चाचा सीताराम पासवान को पकड़कर कोयल नदी की ओर पूरब
ओर ले गये हैं।

62. Thus, from the testimony of this witness it is apparent that the name of

accused persons has not been disclosed by the informant and other self-

proclaimed eyewitnesses, therefore the adverse inference may be drawn

reason being that if the accused was known to the informant and other

witness, then the name of the accused must be disclosed at the first

instance.

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63. The P.W.4 has testified in his testimony that the incident was of

25.05.1996 and at that time, he was sleeping at his door along with Sahbir

Ram (the informant), Rampreet Ram and Sita Ram(deceased). He further

testified that he and Sahbir Ram was sleeping on the same cot and at that

time, ten persons came and surrounded their cots and the accused persons

tied his hands as also his father Ram Preet Ram’s and Sita Ram’s hands

with towels. The accused persons also had torches in their hands with

which they searched towel and tied the hands of this witness and the

informant with a towel. He has stated that he could identify the accused in

the light of the torch. The accused caught Sita Ram and took him away

and said that you are acting like a hero, you are pretending to be a gangster,

come let us find out. In para -6 of the cross-examination, it has come that

this witness has stated the same facts to the police for ready reference para-

6 of the cross examination is being quoted as under:

6. मैं पुनलस में ऐसा कहा था नक सहबीर मेरे साथ चारपाई पर सोया था।

हमलोगों के ही गमछा से अनभयुक्त हमलोगों का हाथ बां ध नदए ऐसा भी कहा
था। पुनलस को ऐसा भी कहा था नक अनभयुक्त गण टाचच की रौशनी में मछा
खोज रहे थे। ऐसा भी कहा था नक अपराधी लोग सीतारमा को बोले नक हीरो
बनते हो रं गदार बहुत बनते हो चलो पता चला दे गें।—-

64. In the aforesaid context it requires to refer herein that the investigating

officer (P.W.1) in his testimony at para 13 has denied the aforesaid

statement of the witness Lalit Ram (P.W.4). This witness had stated that

P.W.4 had not said so that he (P.W.4) slept on a cot with Sahbir

Ram(informant), also he did not say that the accused were looking for a

towel in the flashlight of a torch. P.W.4 also did not say that the accused

told to Sita Ram that you are trying to be a gangster, come let us find out.

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For ready reference the relevant paragraph of the testimony of P.W.1 is

being quoted as under:

“13.साक्षी लनलत राम ऐसा नहीं कहा था नक वह सहबीर के साथ चार पाई
पर सोया था। परन्तु वह ऐसा नहीं कहा था नक अनभयुक्तगण टाचच की रौशनी

में गमछा खोज रहे थे। ऐसा भी नहीं कहा था नक सीताराम को अपराधी लोग
बोले नक रं गदार बनते हो चलो पता चला दे गें।”

65. Thus, it is evident from the aforesaid that there is vital contradiction in

the statement of P.W.1 and P.W.4. Further there is assertion in the FIR

that the matter was informed to the chaukidar for informing the same to

the police but at the same time in P.W.6 informant has stated in his

testimony at paragraph 6 that after finding the dead body chaukidar was

not informed rather came voluntarily to whom villagers deposed the

alleged occurrence. For ready reference the same is being quoted as under:

7. लाश नमलने पर चौकीदार को खबर नहीं नकया हमलोग रोने नगलनगलाने
में थे। चौकीदार आया था। उसे घटना के बारे में नहीं बताया बल्कि गांव के
लोग बताए। मैं रोने नगलनगलाने में था। चौकीदार का नाम रामयश्याम राम
है। ऐसी बात नहीं है नक मैं पुनलस के अपने िथम इत्तला बयान एवं पुनः बयान
में ऐसा कहा हूँ नक लाश ले आने के बाद इसकी सूचना हमलोग चौकीदार
रामयश राम को थाना में सूचना दे ने को कहा। पुनलस चौकीदार के कहने पर
नहीं अनपतु अपने आप सूचना पाकर आयी।

66. Thus, from the aforesaid it is apparent that is contradiction among the

testimony of the informant vis-à-vis fardbayan of the informant. It needs

to refer herein that this Court is conscious with the settled position of law

that the minor discrepancies, embellishments and contradictions in the

evidence of the eyewitness do not destroy the essential fabric of the

prosecution case, the core of which remains unaffected. But at the same

time, it is equally settled that the discrepancies which go to the root of the

matter and shake the basic version of the witnesses that can be annexed

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with due importance, reference in this regard may be made to the judgment

rendered by the Hon’ble Apex Court in the case of Krishnegowda & Ors.

Vrs. State of Karnataka, reported in (2017) 13 SCC 98 wherein the

Hon’ble Apex Court has observed that the minor variations and

contradictions in the evidence of the eyewitnesses will not tilt the benefit

of doubt in favour of the accused but when the contradictions in the

evidence of the prosecution witnesses proves to be fatal to the prosecution

case then those contradictions go to the root of the matter and in such cases

the accused gets the benefit of doubt. For ready reference the relevant

paragraph of the aforesaid judgment is being quoted as under:

“32. — — The minor variations and contradictions in the
evidence of the eyewitnesses will not tilt the benefit of doubt in
favour of the accused but when the contradictions in the evidence
of the prosecution witnesses proves to be fatal to the prosecution
case then those contradictions go to the root of the matter and in
such cases the accused gets the benefit of doubt.

33. It is the duty of the Court to consider the trustworthiness of
evidence on record. As said by Bentham, “witnesses are the eyes
and ears of justice.— – -‘”

67. Further as discussed hereinabove, this Court is of the considered view

that defence witness is also to be given equal weightage as is to be given

to the prosecution witnesses. It would be apt herein to reiterate the

testimony of DW.1 who has categorically stated that last year he got his

daughter Lalmuni Kumari married on 25.05.1996 in which he had invited

the people of the village there and the deceased-Sitaram had come to his

village for ‘Madawa’ on that day.

68. He had further deposed that on that night there was sound of gunshot

outside and on hearing the same, he closed his door and they (criminals)

started banging on the door and on being asked what was the matter, they
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told this witness that a man had come. When he asked his name, they told

him that his name is Sitaram. They told him that they were party men

(Extremists). He has stated that he opened the door and sent Sitaram to

meet them. When Sitaram went to meet them, they caught him He has

stated that on this, he closed his door. He has stated that they caught

Sitaram and took him away. In the morning, he got an information that

Sitaram’s family members were searching for him. Later, he was found

dead. In cross-examination this witness has further deposed that the

information about taking Sitaram(deceased) away by the extremists was

not given to his family members as a member of his family was present

there so information was not given.

69. DW2-Ram Janam Ram Paswan has stated that wedding of Ram

Chandra’s (DW.1) daughter was on 25.05.1996 in which he went there.

Sita Ram of Kurakatta village was also there and ‘Haldi’ ceremony was

being performed and he was sitting at the door of Charitra Ram’s house

which is adjacent to their house. At para-2 he has stated that seven

unknown persons came there. They first went to Ramchandra Ram’s door

and then came to them from the east and pointed a pistol at them. When

they asked the reason for this, they said that they were party men. After

that, they went to Sita Ram’s house and started beating him up, upon which

Sita Ram went to Ramchandra’s house. The extremists fired a shot and

knocked at Ramchandra Ram’s door and when Ramchandra opened the

door, they said that they were searching Sita Ram, so bring him out. When

Sita Ram came out, they caught hold of him, started beating her 2-3 times

with sticks and took him away to the east.

70. Thus, from the testimonies of the aforesaid defence witnesses it appears

that deceased was taken away by the extremist group from house of the
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DW.1 during ceremonial function and since the family members of the

deceased were present in the said ceremonial function therefore, they all

were acquainted with the alleged occurrence. This statement of DW1 has

fully been substantiated by the testimony of DW.2 who had categorically

stated in his testimony that Sita Ram(deceased) of Kurakatta village was

also there and ‘Haldi’ ceremony was being performed and he was sitting

at the door of Charitra Ram’s house which is adjacent to their house and

he further corroborated the fact that deceased was taken away by the

extremist on the day of alleged occurrence.

71. It requires to refer herein that P.W.8 although has been declared hostile

by the prosecution has stated in his cross examination that deceased had

gone to the house of Ram Chandra Ram (DW.1) on the eve of Madwa of

Ram Chandra Ram’s daughter from where unknown persons had taken

him away. For ready reference relevant paragraph of the testimony is

being quoted as under:

“3.मैं अपने गांव के रामचन्द्र राम, िेमनथ राम को जानता हूँ। 25.05.96 को
रामचन्द्र राम के घर मड़वा था जहां मृतक सीताराम भी गये हुए थे जहां से
12-1 बजे रानि को अज्ञात उग्रवादी लोग उठाकर ले गये। पुनलस में मेरा कोई
बयान नहीं हुआ था।”

72. Thus the deposition of DW1 and DW.2 has also been corroborated by

the testimony of P.W.8 and it is the settled proposition of law that if the

result of cross-examination of prosecution witnesses, accused could

establish the probability of his defence and if probability was established

by accused, it would really entitle him to the benefit of doubt, reference in

this regard may be made to the judgment rendered by the Hon’ble Apex

Court in the case of Bhikam Saran Vrs. State of U.P., reported in (1953)

2 SCC 560, wherein, at paragraph-16, it has been held as under:

2025:JHHC:20373-DB

“16. It is significant to observe that the appellant led no evidence
in defence but merely relied upon the evidence of the prosecution
witnesses in order to establish his defence. He had not to
affirmatively establish his defence in the manner in which the
prosecution had to establish its case. If as the result of his cross-

examination of the prosecution witnesses he could establish the
probability of his defence it was enough for his purposes, because
if such a probability was established by him it would really entitle
him to the benefit of the doubt insofar as such probability would
prevent the prosecution case being established beyond reasonable
doubt.”

73. Thus, the testimony of DW. 1 and DW.2 coupled with the conduct of

the prosecution witnesses particularly P.W.6 i.e. informant which has

already been discussed in preceding paragraph and further taking into

consideration the major contradiction and omission as aforesaid, this

Court is of the view that prosecution is not able to prove the charges

against the appellants beyond all reasonable doubt.

74. The Hon’ble Apex Court in catena of decision has propounded the

proposition that in the criminal trial, there cannot be any conviction if the

charge is not being proved beyond all reasonable doubts, as has been held

in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported

in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-

“22. The amount of doubt which the Court would entertain regarding
the complicity of the appellants in this case is much more than the
level of reasonable doubt. We are aware that acquitting the accused
in a case of this nature is not a matter of satisfaction for all
concerned. At the same time we remind ourselves of the time-tested
rule that acquittal of a guilty person should be preferred to
conviction of an innocent person. Unless the prosecution establishes
the guilt of the accused beyond reasonable doubt a conviction cannot
be passed on the accused. A criminal court cannot afford to deprive
liberty of the appellants, lifelong liberty, without having at least a
reasonable level of certainty that the appellants were the real

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culprits. We really entertain doubt about the involvement of the
appellants in the crime.”

75. Likewise, the Hon’ble Apex Court in the case of Krishnegowda & Ors.

Vrs. State of Karnataka, (supra), has held at paragraph-26 as under:-

“26. Having gone through the evidence of the prosecution witnesses
and the findings recorded by the High Court we feel that the High
Court has failed to understand the fact that the guilt of the accused
has to be proved beyond reasonable doubt and this is a classic case
where at each and every stage of the trial, there were lapses on the
part of the investigating agency and the evidence of the witnesses is
not trustworthy which can never be a basis for conviction. The basic
principle of criminal jurisprudence is that the accused is presumed to
be innocent until his guilt is proved beyond reasonable doubt.”

76.Further, it needs to refer herein the principle of ‘benefit of doubt’ belongs

exclusively to criminal jurisprudence. The pristine doctrine of ‘benefit of

doubt’ can be invoked when there is reasonable doubt regarding the guilt of

the accused, reference in this regard may be made to the judgment rendered

by the Hon’ble Apex Court in the case of State of Haryana Vrs. Bhagirath

& Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-

7 as under: –

“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable. The
benefit of doubt was given to Bhagirath “as a matter of abundant
caution”. Unfortunately, the High Court did not point out the area
where there is such a doubt. Any restraint by way of abundant caution
need not be entangled with the concept of the benefit of doubt.
Abundant caution is always desirable in all spheres of human
activity. But the principle of benefit of doubt belongs exclusively to
criminal jurisprudence. The pristine doctrine of benefit of doubt can
be invoked when there is reasonable doubt regarding the guilt of the
accused. It is the reasonable doubt which a conscientious judicial
mind entertains on a conspectus of the entire evidence that the
accused might not have committed the offence, which affords the
benefit to the accused at the end of the criminal trial. Benefit of doubt

49
2025:JHHC:20373-DB

is not a legal dosage to be administered at every segment of the
evidence, but an advantage to be afforded to the accused at the final
end after consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt regarding the guilt
of the accused.”

77.It needs to refer herein that the Hon’ble Apex Court, in the case of

Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57

has laid down the principle that the golden thread which runs through the

web of administration of justice in criminal case is that if two views are

possible on the evidence adduced in the case, one pointing to the guilt of

the accused and the other to his innocence, the view which is favourable

to the accused should be adopted, for reference, paragraph 6 thereof

requires to be referred herein which reads hereunder as :-

“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which
is favourable to the accused should be adopted. –”

78. It needs to refer herein before laying down the aforesaid view, the

Hon’ble Apex Court in the case of “Sharad Birdhichand Sarda”

(supra) has already laid down the same view at paragraph 163 which

is required to be referred which read hereunder as

“163. We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled
that where on the evidence two possibilities are available or open,
one which goes in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly entitled to the
benefit of doubt.—”

79. This Court, after having discussed the factual aspect and legal position

as discussed hereinabove, is of the view that the learned trial Court neither

appreciated nor giving thoughtful consideration to the testimony of defence

50
2025:JHHC:20373-DB

witnesses as well as the inter-se contradiction among the prosecution

witnesses available on record, as such the impugned order/conviction and

sentence requires interference by this Court.

80. Accordingly, the impugned judgement of conviction dated 27.01.1998

and the order of sentence dated 28.01.1998 passed by the learned 2 nd Addl.

Sessions Judge, Palamu, Daltonganj in Sessions Trial No. 509 of 1996 is

hereby quashed and set aside so far, the present appellants are concerned.

81. Consequently, the instant appeals stand allowed.

82. The present appellants are hereby discharged from all criminal liabilities.

Since the aforesaid appellants are on bail and, as such, they are

discharged from the liability of the bail bonds.

83. Let the Lower Court Records be sent back to the Court concerned

forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, A.C. J.)

I Agree.

(Rajesh Kumar, J.)

Sudhir
Jharkhand High Court,
Dated:22./07/2025
AFR

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Author: Rajesh Kumar

Bench: Rajesh Kumar

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