Jharkhand High Court
Raghu Oraon Alias Raghunandan Oraon Son … vs The State Of Bihar on 3 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:18733-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 09 of 1998(R)
1. Raghu Oraon alias Raghunandan Oraon Son of Late Mangal Oraon,
residents of village-Sati Nawadih, Police Station- Bishunpur,
District- Gumla.
2. Somra Oraon Son of Lethe Oraon, resident of village- Manatu,
Police Station- Ghaghra, District- Gumla
... ... Appellants
Versus
The State of Bihar ... ...Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellants : Mr. Chandan Kumar, Advocate
For the Respondent : Mrs. Nehala Sharmin, Spl.P.P.
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05/3 July, 2025
rd
Per Sujit Narayan Prasad, J.:
1. The instant appeal under Sections 374(2) of the Criminal Procedure
Code, 1973 is directed against the judgment of conviction dated 18-
12-1997 and order of sentence dated 19-12-1997 passed by the
learned Additional Sessions Judge, Gumla in Sessions Trial No. 217
of 1996 whereby and whereunder, the appellants herein have been
convicted for the offence under Sections 302/34 of the IPC and
have been sentenced to under to Rigorous Imprisonment for life.
Factual Matrix
2. The brief facts of the case as per the memo appeal is being referred
herein which reads as under:
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On 17.11.1995, in the morning, Informant’s elder brother
(deceased) had gone to Gumla SDO Court for attending the date
of the case. In the evening, when the Informant went to Adar,
there he saw co-villagers Somra Oraon, Raghu Oraon and two
unknown persons were coming towards road side.
It has further been alleged that at about 5.00 PM, his elder
brother along with Basu Tana Bhagat and Feku Choukidar came
by a truck and thereafter they all proceeded. At about 6.00 PM,
Informant’s brother went to attend the call of nature in a river.
The informant all of a sudden heard the sound of firing and
when he went near the scene, found his brother in injured
condition and also saw Somra +Oraon, Raghu Oraon and others
were fleeing away with two unknown persons.
3. On the basis of the above information, a case being Gumla Sadar 17
of 1995 was registered under Sections 302/34 of the Indian Penal
Code and 27 of the Arms Act against Somra Oraon, Raghu Oraon
and two unknown persons and after investigation of the case, the
charge sheet was submitted against the appellants.
4. Accordingly, the cognizance for the offence under the aforesaid
sections was taken against the appellant and the case was
committed to the court of sessions and thereafter the trial
commenced.
5. The prosecution had examined all together 8 witnesses.
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6. The learned Trial Court by considering the testimony of informant
(P.W.5), as well as evidence of an eye-witness (P.W.3) has convicted
the present appellants for the offence punishable under Sections
302/34 of the Indian Penal Code, which is subject matter of the
present appeal.
Arguments advanced by the learned counsel appearing for the
appellants:
7. The appeal, pointing out the infirmity said to be committed by the
learned trial Court while convicting the appellants for the offence
under Section 302/34 of the Indian Penal Code, has been filed on
the following grounds:
(i) No substance of land dispute has been found to be
corroborated in course of the investigation by the
Investigating Officer, but the aforesaid issue, has been taken
into consideration by the learned trial Court as a motive for
commission of crime of the murder of the deceased.
(ii) The allegation is of committing murder due to gun-shot
injury, but no recovery of any arms has been found to be
there by the Investigation Officer, which would be evident
from the seizure list itself.
(iii) The PW 3 and PW 5 have been considered to be an eye-
witnesses, but if the testimony will be taken into
consideration, then it would be evident that they cannot be
said to be eye-witnesses, since, they had not seen the
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commission of crime said to be committed by these
appellants, except by taking the name of the appellants and
deposed that they have seen the appellants when appellants
were fleeing away from the place of occurrence.
(iv) The version of the informant in the FIR, who has been
examined as P.W.-5 is that the Somra and Raghu (appellants
herein) had been seen giving bullet injury upon the deceased,
but the said version has not been supported by PW 5 in his
evidence, rather they have deposed that the appellants were
found fleeing away from the place of occurrence.
8. The learned counsel appearing for the appellant, based upon the
aforesaid grounds, has submitted that all these aspects since has
not been appreciated by the learned trial Court in the right
perspective, as such, the judgment of conviction suffers from an
error, hence the present appeal.
Arguments advanced by the learned Spl. Public Prosecutor
appearing for the State:
9. Per contra, Mrs. Nehala Sharmin, learned Spl. Public Prosecutor has
defended the impugned judgment by taking the following grounds:
(i) It is a case where the judgment cannot be said to suffer from
an error, since the conviction is based upon the testimony of
PW 3 and PW 5, who have been considered to be an eye
witness to the alleged occurrence.
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(ii) The submission has been made that if the testimony of PW 3
and PW 5 will be taken into consideration in entirety as also
the testimony of the doctor, it would be evident that the
testimony of the ocular witness, i.e., PW 3 and PW 5 have fully
been supported by the doctor, who has been examined as PW
6.
(iii) The ground that been taken that the version which has been
stated by P.W. 5 in the FIR of seeing the appellants, at the
place of occurrence giving bullet shot, has been corroborated
by him in the evidence recorded in course of the trial.
10. Learned counsel appearing for the respondent State, based upon
the aforesaid grounds, has submitted that the judgment therefore
cannot be said to suffer from an error and hence the present appeal
is fit to be dismissed.
Analysis:
11. We have heard the learned counsel for the parties and have gone
through the findings recorded by the learned Trial Court in the
impugned judgment as also the testimony of the witnesses and
other materials exhibits as available in the trial court record.
12. This Court is now proceeding to consider the testimonies of witnesses
which have been recorded by learned trial Court. The learned Trial
Court during the trial has altogether examined eleven witnesses.
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P.W.1 Tetra Oraon stated that in his presence, the dead body of
deceased Kinwa Tena Bhagat was seized by the I.O. and
accordingly the Inquest report in carbon processes was prepared
in his presence and same was read over to him, upon which he
signed. He identified his signature as Ext. 1. He also identified the
signature of the other witness Rati Oraon as Ext.1/1. He had stated
that blood-stained earth was also seized by the I.O. in his presence
and he prepared the Seizure list in Carbon processes and when it
was read over to him, he signed the same. He proved the seizure
list as Ext.2 and his signature was marked as Ext. 2 and that of a
witness Rati Oraon as Ext. 2/1.
P.W.2 Rati Oraon was tendered for cross examination and
nothing was asked from him.
P.W.3 Basu Tana Bhagat stated in court that on the date of
occurrence he had come to Ghaghra. Kinwa Tana
Bhagat(deceased) had also come to Gumla to attend the 107 Cr.P.C
proceeding before the S.D.0. Gumla. After attending the court in
the noon, Kinwa Tana Bhagat came to Ghaghra and met him in
Chandni Chowk for catching bus to village. Feku Choukidar also
came and then three of them boarded a Truck. They got down
from the said Truck near the Check naka where they saw Jauna
Tana Bhagat waiting for his brother. Thereafter all four of them
proceeded towards their village on foot.
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Further he had stated that when they reached near Tin Forwa
River at about 5 P.M. then Kinwa Tana Bhagat went for natural call
near the river. They were waiting for him. When they heard sound
of firing, they ran towards Kinwa Tena Bhagat and found him
injured with Gun firing and also saw the accused persons running
away. Injured Kinwa Tana Bhagat had told them that Somra and
Raghu fired on him. They saw Somra Oraon and Raghu Oraon
running away from the place of occurrence alongwith two
unknown persons.
Thereafter he went to the village and informed the villagers,
when they were running, they saw Somra and Raghu Oraon, and
Gahnu and Sukhdeo Oraon running to the village. He also stated
that kinwa Tana Bhagat had land dispute with Somra Oraon. He
identified the accused persons in court.
In his cross-examination, he had stated that the deceased
Kinwa Tana Bhagat was a co-villager and a village Samadhi. He
also stated in his cross examination that they were waiting for the
deceased while he was easing at a distance of 10 steps. He stated
that his village is at a distance of one mile from Tin Forwe river.
He also stated in his cross examination that he gave his statement
to the police that he saw the two accused persons firing.
P.W.4 Jageshwar Tana Bhagat stated in court that 1½ years back
on a Friday of aghan month he was at his home and his father
deceased Kinwa Tana Bhagat had gone to Gumla to attend the
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court. At about 7 P.M. in the evening Basu Tana Bhagat came and
told him that Raghu Oraon, Somra Oraon, Gahnu Oraon and
Sukhdeo Oraon have killed his father near Tin Forwa River by
firing causing his death. Hearing this he along with his mother and
co-villagers went to the place of occurrence and saw the dead
body of his father. He identified both the accused in court.
In his cross examination he stated that when Basu Tana
Bhagat came to his house then his mother and brother were at
home. He also stated that he remained near the dead body at 9:10
P.M.in the night.
PW.5 Jauna Tana Bhagat the informant had stated that on the
date of occurrence, his brother Kinwa Tana Bhagat had gone to
Gumla to attend the land dispute case in the court of S. D.O. and
while running from his work he was waiting for Kinwa near
Checknaka. Feku Chowkidar got gown near the cheeknaka, then all
four of them proceed on foot towards their village. When they
reached near Tin Forwa river then deceased Kinwa Tana Bhagat
wanted to go for natural call and while he was attending his
natural call they were waiting for him.
He had further testified that they heard sound of firing and ran
towards Kinwa then he saw that both the appellants/accused
along with two persons running away from the place of
occurrence. Kinwa had told them that Raghu and Somra Oraon has
fired on him. They chased the accused persons for some distance
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but subsequently return near the deceased. After some time
Kinwa died thereafter leaving the Choukidar and himself Basu
Tana Bhagat went to the village and came along-with his family
members and villagers.
In the morning, they came to the police station and he had
given his statement based upon that FIR was lodged. He proved
his signature on the FIR as Ext. 3. He identified the accused
persons in court.
In his cross examination he stated that he left for the village
as soon as Kinwa got down from the Truck. He also stated that
while going to Adar he had seen Raghu and Somra Oraon in
between Ajiatu and Porha. He also stated that Porha is at a
distance of ½ km. from Tin Forwa River. He also stated that the
place where he had seen Raghu and Somra is at a distance of ¼
km. from the Checknaka. He also stated that he had chased the
accused persons to some distance. He also stated that the police
had come to the village after lodging of the FIR.
P.W.6 Dr. Angraj Subash proved the postmortem report as Ext.4
and stated that he found the following ante mortem injury on the
person of the deceased Kinwa Tana Bhagat: –
(1) Lacerated wound just below right scapula- an entry wound
size 1″x1/2″x12″.
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(2) Lacerated wound just above the junction of sternum and lower
part of neck Exit wound size-2″x1″x12″.
In the opinion of the doctor both the injuries were caused by fire
Arm. Injury no.1 was wound of entry and injury no.2 was wound
of exit. In the opinion of the doctor the firing was done from point
blank range and the injuries were sufficient to cause death in the
ordinary course of nature.
PW.7 Anup Prasad Singh, the I.O. of the case stated in court that
on 18.11.95 at about 9 A.M. informant Jauna Tana Bhagat came to
the police station and gave his F.I.R. to the O/C Surendra Prasad
Singh. On the basis of the said F.I.R. the O/C entrusted the
investigation of the said case no. 75/95 to him.
He had proved the F.I.R. to be in the hand writing of the O/C
S.P.Singh as Ext.3. He stated that the statement was signed by the
informant after it was read over to him and he found it correct.
which was marked as Ext.3/1. He gave the details of the place of
occurrence. He also proved the Inquest report as Ext.1/2. He also
proved the seizure list of the blood-stained earth as Ext.2/2 to be
in his signature and hand writing then he sent the dead body for
postmortem examination to Sadar Hospital Gumla thereafter
recorded the statement of the witnesses. He received the
postmortem report and since he was transferred on 9.1.96. he
returned the further investigation to the O/C.
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In his cross examination he stated that he cannot say the
distance of Manatu village from the place of occurrence.
P.W.8 B. Jha S.I. of police stated in court that on 9.1.96 the O/C
Ghaghara entrusted the investigation of this case to him and since
the investigation was complete after supervision of superior
officer, he submitted charge-sheet.
13. After discussion of the testimony of prosecution witnesses this
Court thought it proper to first go into the finding so recorded by
the learned trial Court as to assess, what is the basis of the
conviction, so as to appreciate the arguments advanced by the
parties.
14. It is evident from the finding part that the discussion of the
witnesses, altogether 8 in numbers, have been made, but the
testimony of P.W. 3 and P.W. 5 have been taken into consideration
emphatically, since they have been considered to be eye witnesses.
15. The learned trial Court has found the witness P.W. 3 and P.W. 5 to
be eye witness, since as per the learned trial Court, they had seen
the accused fleeing away from the place of occurrence, hence they
have been considered to be eye witnesses.
16. The learned Court has also given finding that the testimony of P.W.
3 and P.W. 5 have been corroborated by the doctor who has been
examined as P.W. 6.
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17. Thus, it is evident that the learned trial Court has convicted both
the appellants primarily on the basis of testimony of P.W. 3 and
P.W. 5, who have been considered to be an eye witness.
18. This Court, in order to come to the just conclusion is now to
consider
(i) whether the consideration, so made by the learned trial
Court, that P.W. 3 and P.W. 5 to be an eye witnesses can be
said to be just and proper or not?
(ii) Whether merely on the ground that the appellants have been
found to be fleeing away from the place of occurrence as has
been deposed by P.W. 3 and P.W. 5, can they be considered to
be an eye witness even if the P.W. 3 and P.W. 5 had not
witnesses of bullet shot alleged to be given by appellants
upon the deceased?
19. Both the issues since are interlinked, and as such is being
considered together.
20. This Court, in order to consider the aforesaid issue, needs to
appreciate the deposition of P.W. 3 and P.W. 5, in order to assess as
to whether they can be considered to be an eye witness or not.
21. It is evident from the testimony of P.W. 3 and 5, that they had not
seen the appellants giving bullet shot injury upon the deceased,
rather they have seen the appellants while they were fleeing away
from the place of occurrence.
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22. Further from medical evidence, it is evident that admittedly the
murder of the deceased has been caused by the gun shot. It is also
admitted from the testimony of P.W. 3 and P.W. 5 that they had not
seen the giving the gun shot injury upon the deceased by the
appellants.
23. Therefore, the question would be that merely by seeing fleeing
away from the place of occurrence, can P.W. 3 and P.W. 5 be
claimed as an eye witness.
24. The eye witness concept, as has been dealt with by the Hon’ble
Apex Court that will be referred to such witnesses who have seen
the commission of crime with his naked eye and his testimony, if
found to be trustworthy from all corner without any iota of doubt.
Reference in this regard be made to the Judgment rendered by the
Hon’ble Apex Court in the case of Rai Sandeep @ Deepu alias
Deepu V. State (NCT of Delhi) (2012) 8 SCC 21 wherein it has
been observed that the “sterling witness” should be of very high
quality and Caliber whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. What would be relevant is the truthfulness of the
statement made by such a witness. It should be natural and
consistent with the case of the prosecution of the accused. The
relevant paragraph of the aforesaid Judgment is being quoted as
under:
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“22. In our considered opinion, the “sterling witness” should be of
very high quality and caliber whose version should, therefore, be
unassailable. The court considering the version of such witness should
be in a position to accept it for its face value without any hesitation.
To test the quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant
would be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural and
consistent with the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-examination of
any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as the sequence of it. Such a
version should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons used,
the manner of offence committed, the scientific evidence and the
expert opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence where
there should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all other
such similar tests to be applied, can it be held that such a witness can
be called as a “sterling witness” whose version can be accepted by
the court without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the said witness
on the core spectrum of the crime should remain intact while all other
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attendant materials, namely, oral, documentary and material objects
should match the said version in material particulars in order to
enable the court trying the offence to rely on the core version to sieve
the other supporting materials for holding the offender guilty of the
charge alleged.”
25. Admittedly, P.W.3 and P.W. 5 is not the witness of the actual assault
i.e. gunshot. This Court is conscious with the fact that even in
absence of the eyewitness, conviction can be based upon the
circumstantial evidence but in a case of circumstantial evidence the
chain of circumstances must be completed.
26. 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
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accused and it must be such as to show that within all human
probability the act must have been done by the accused. ……”
27. 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 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.
28. 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.
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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] )
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
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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:
“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] “
29. 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
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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.
30. 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.
31. 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.
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32. 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 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.”
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33. It is, thus, evident from the close analysis of the aforesaid
judgments 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.
34. The authoritative judgment in the aforesaid context is the Sharad
Birdhichand Sarda vs. State of Maharashtra, (supra) wherein the
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
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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 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)
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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.”
35. 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:
“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 is23
2025:JHHC:18733-DBno 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.”
36. 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.”
37. 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, the inference of guilt can be justified only
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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.
38. 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.”
39. 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.”
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40. 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:
“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.”
41. 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.
42. Admittedly, We, after going through the impugned judgment, have
not found the conviction is based upon the circumstantial evidence,
rather the conviction is based upon the testimony of P.W. 3 and
P.W. 5 who have been considered to be an eye witnesses by the
learned trial court.
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43. The admitted position is that P.W. 3 and P.W. 5 has not seen these
appellants giving gunshot injury from their naked eye, rather, when
they have reached to the place of occurrence, these two persons
have been seen to be fleeing away.
44. The argument which has been advanced on behalf of the State is
that the place was lonely and since the P.W. 5, the informant, had
seen the appellants fleeing away from the place of occurrence,
hence the presumption will be there, in absence of any third person
at the place of occurrence, against the appellants in committing
murder of the deceased, but we are not in agreement with such
argument, reason being that merely on the presumption or
conjecture, there cannot be any conviction so far as criminal
jurisprudence is concerned, rather the principle is that the charge
is to be proved beyond all reasonable doubt and if there is any iota
of doubt, then the benefit of doubt is to be given to the person
against whom the accusation has been made.
45. 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 this27
2025:JHHC:18733-DBnature 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 culprits. We really entertain doubt about the
involvement of the appellants in the crime.”
46. Likewise, the Hon’ble Apex Court in the case of Krishnegowda &
Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, 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.”
47. It requires to refer herein that 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
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(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 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.”
48. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v.
State of Karnataka (Supra) at paragraph- 32 and 33 has held 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.— –
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49. The argument, which has been advanced by the prosecution, that
there is a motive for commission of alleged crime, i.e., the land
dispute in between the deceased and the appellants, but we, on
consideration of the entire testimony, has not found which type of
land dispute was there, since no details about the land dispute has
been uttered by any of the witnesses in course of the trial.
50. It needs to refer herein that in order to substantiate the accusation
so made against the appellants, the Investigating Officer ought to
have taken sincere endeavor to connect the connectivity of
commission of crime with the appellant by recovery of bullet and so
as to send the same to the Forensic Science Laboratory, as also the
Pistol from which the gun shot injury has been said to be given, to
connect the connectivity of firing of bullet from the same pistol, but
that is lacking herein.
51. It is further evident, on the basis of the testimony of the witnesses,
that accusation although has been made against four accused
persons, but there is not specific attributability has been alleged
against the present appellants and merely on the basis of applying
the Section 34 of the Indian Penal Code, the conviction has been
inflicted against the appellants under Section 302IPC.
52. It needs to refer herein that under the provisions of Section 34 the
essence of the liability is to be found in the existence of a common
intention animating the accused leading to the doing of a criminal
act in furtherance of such intention. As a result of the application of
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principles enunciated in Section 34, when an accused is convicted
under Section 302 read with Section 34, in law it means that the
accused is liable for the act which caused death of the deceased in
the same manner as if it was done by him alone. The provision is
intended to meet a case in which it may be difficult to distinguish
between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what
part was taken by each of them.
53. Thus, from the aforesaid settled position of law it is evident that
Section 34 has been enacted on the principle of joint liability in the
doing of a criminal act. The section is only a rule of evidence and
does not create a substantive offence. The distinctive feature of the
section is the element of participation in action. The liability of one
person for an offence committed by another in the course of
criminal act perpetrated by several persons arises under Section 34
if such criminal act is done in furtherance of a common intention of
the persons who join in committing the crime.
54. In order to bring home the charge of common intention, the
prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of minds of all the
accused persons to commit the offence for which they are charged
with the aid of Section 34, be it prearranged or on the spur of the
moment; but it must necessarily be before the commission of the
crime.
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55. The true contents of the section are that if two or more persons
intentionally do an act jointly, the position in law is just the same as
if each of them has done it individually by himself. The existence of
a common intention amongst the participants in a crime is the
essential element for application of this section. It is not necessary
that the acts of the several persons charged with commission of an
offence jointly must be the same or identically similar. The acts may
be different in character, but must have been actuated by one and
the same common intention in order to attract the provision.
56. Further, the burden lies on the prosecution to prove that actual
participation of more than one person for commission of criminal
act was done in furtherance of common intention of all at a prior
concert. However, it is not required for the prosecution to establish
that there was a prior conspiracy or premeditation; common
intention can be found in the course of occurrence.
57. To apply Section 34 apart from the fact that there should be two or
more accused, two factors must be established: (i) common
intention, and (ii) participation of the accused in the commission of
an offence. If common intention is proved but no overt act is
attributed to the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability. But if participation of the
accused in the crime is proved and common intention is absent,
Section 34 cannot be invoked reference in this regard may be taken
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from the judgment rendered by the Hon’ble Apex Court in the case
of Jai Bhagwan v. State of Haryana (1999) 3 SCC 102.
58. As held by the Constitution Bench of the Hon’ble Apex Court
in Mohan Singh v. State of Punjab AIR 1963 SC 174, common
intention denotes action in concert, and a prior meeting of minds–
the acts may be different, and may vary in their character, but they
are all actuated by the same common intention. However, prior
concert in the sense of a distinct previous plan is not necessary to
be proved. The common intention to bring about a particular result
may well develop on the spot as between a number of persons.
Thus, the question as to whether there is any common intention or
not depends upon the inference to be drawn from the proven facts
and circumstances of each case. The totality of the circumstances
must be taken into consideration in arriving at the conclusion
whether the accused persons had the common intention to commit
the offence with which they could be convicted.
59. It is admitted from the testimony of the witnesses taken up
together that no specific attributability has been casted upon the
accused persons so as to attract the ingredient of Section 34 of the
Indian Penal Code.
60. It further appears that the informant, who has been examined as
P.W. 5, has narrated the prosecution version, stating therein that
these appellants have given bullet shot injury. which he had seen.
But in the cross-examination, he contradicted himself, wherein he
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has deposed that he had only seen the appellants fleeing away from
the place of occurrence.
61. This Court, therefore is of the view after going through testimony of
P.W. 3 and P.W. 5 that they cannot be presumed to be an eye
witness but the learned trial Court has considered them as an
eyewitness, which according to our considered view is gross error
committed by the learned trial Court.
62. Admittedly culpable homicide is there, but the question is that who
has committed the said crime, is to be ascertained by the
prosecution not on the basis of conjecture and surmises, rather, the
accusation is to be substantiated beyond all reasonable doubt, then
only the conviction will be said to be just and proper.
63. This Court, on the basis of the discussion made hereinabove, is of
the view that due to lack of cogent evidence, as has been discussed
hereinabove, the impugned judgment cannot be said to be proper.
64. This Court applying the aforesaid principles and based upon the
discussion made herein above, is of the view that the impugned
judgment needs interference by this Court.
65. Accordingly, the impugned judgment of conviction dated 18-12-
1997 and order of sentence dated 19-12-1997 passed in S.T. No.
217 of 1996, arising out of Poraiyahat P.S. Case No. 105 of 1995 by
the Court of learned Additional Sessions Judge, Gumla are set aside.
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66. Consequent thereto, the instant criminal appeal is allowed. The
appellant is discharged from the criminal liability.
67. In the result, both the appellants are discharged from the criminal
liability.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
/A.F.R.
Samarth
35