Surajdeo Mahto vs The State Of Bihar on 4 August, 2021


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Supreme Court of India

Surajdeo Mahto vs The State Of Bihar on 4 August, 2021

Author: Surya Kant

Bench: Hon’Ble The Justice, Surya Kant

                                                                        REPORTABLE




                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION


                                  CRIMINAL APPEAL NO.1677 of 2011




       Surajdeo Mahto and Anr.                                      ..... Appellant(s)
                                               VERSUS
       The State of Bihar                                           ..... Respondent


                                              JUDGEMENT

Surya Kant, J.

Surajdeo Mahto (Appellant No.1) and Prakash Mahto (Appellant

No.2) have laid challenge to the judgment dated 20.05.2010 passed by

the High Court at Patna, whereby, the order of their conviction and

sentence dated 13.05.1988 passed by the 3 rd Additional Sessions

Judge, Nawadah was confirmed. Both the Appellants have been
Signature Not Verified

convicted for offences under Section 302 read with section 34 of the
Digitally signed by
Vishal Anand
Date: 2021.08.04
16:44:37 IST
Reason:

Indian Penal Code [in short, “IPC”] read with Section 120­B of the IPC

and have been sentenced to life imprisonment for each of the offences.

Page | 1
Additionally, Appellant No.1 has also been convicted under section

364 IPC and has been sentenced to five years of imprisonment for the

said offence, with a direction that the sentences will run concurrently.

FACTS

2. The prosecution case, in brief, is that on 05.04.1987, Arun

(deceased) and Sunder Prasad (PW­17) were putting up in Arun’s

house at Manawan village when Surajdeo Mahto (Appellant No.1) and

Raj Kumar approached Arun and asked him to accompany them to

the Cinema at Nawada village. While Arun was reluctant initially to

accompany them, he eventually agreed when Appellant No.1

volunteered to bear the expenses. Upon Arun’s request, Sunder

Prasad (PW­17) also agreed to go along with them to the Cinema. After

the show, Raj Kumar and Sunder Prasad returned to Manawan village

on 06.04.1987 whereas Arun and Surajdeo Mahto did not come back

with them. As Arun did not return, Ramji Mahto (father of Arun; PW­

16) enquired from Raj Kumar who told him that Arun and Surajdeo

Mahto had gone to Arun’s in­laws’ place in Amwa village.

3. A few more days passed and Arun had not yet returned home,

Arun’s worried family, therefore, sent Raj Kumar to bring him back.

Ramji Mahto also requested his fellow villager Kailash Mahto (PW­1) to

join him in looking for Arun. They found out that Surajdeo Mahto and

Arun had visited the latter’s in­laws’ place on 06.04.1987 and stayed

Page | 2
there till 08.04.1987. It was further discovered that the duo had then

proceeded to Dopta village wherein Appellant No.1’s sister was

married. Thereafter, Appellant No.1 returned to his village Manawan

on 10.04.1987, but whereabouts of Arun were still unknown. When

asked, Appellant No.1 did not provide any credible information about

Arun, instead, he too disappeared and was not seen for the next few

days. Pursuant to Ramji’s request, PW­1 visited Dopta on 10.04.1987

but he too was unable to track down Arun. Since Arun was still

untraceable, Ramji Mahto, through his nephew Ishwari Mahto (PW­

3A), sent information to the Police, which culminated in the lodging of

Sanha Entry No. 227, dated 11.04.1987.

4. In the meantime, Ram Brikch Paswan (PW­8), Chowkidar, Circle

No. 7, heard rumours of a dead body in Ram Sagar Ahar (Reservoir)

near Kakolat. On 11.04.1987, he proceeded to the spot and discovered

the dead body. He also found an iron dagger and two lungis near the

body. The statement of Ram Brikch Paswan was subsequently

recorded by the police and treated as a Fardbeyan. Thereafter,

Ramchandra Singh (PW­18), Officer­In­charge, Govindpur Police

Station reached the spot and prepared the inquest report in the

presence of witnesses. Upon inspecting the place of occurrence,

additional material such as one pair of slippers, one handkerchief, a

knife and a jerrycan made of plastic were also discovered and seized. A

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seizure list was prepared in the presence of witnesses. The dead body

was then sent for post mortem examination.

5. On 12.04.1987, Ramji Mahto (PW­16) received information that a

dead body of a male person was brought in by the Govindpur Police

Station. Subsequently, Ramji Mahto along with some co­villagers went

to the Police Station and identified that the dead body was that of his

son Arun.

6. The investigation then proceeded in light of the above­stated

facts, and upon collection of substantial evidence, a charge sheet was

filed against Surajdeo Mahto (Appellant No.1), Prakash Mahto

(Appellant No.2), Chando Mahto, Shankar Mahto and Raj Kumar

Mahto. The case was committed to the court of 3 rd Additional Sessions

Judge, Nawadah and charges were framed against the accused

persons for offences under sections 364, 120­B and 302 read with

section 34 of the IPC. The accused persons abjured their guilt and

claimed trial.

7. In the eventual trial, a total of 18 witnesses were examined by

the prosecution. No documentary evidence was relied upon by the

prosecution. The case of the prosecution rested heavily upon

circumstantial evidence, including deposition of Ramji Mahto (PW­16),

father of the deceased. PW­16 in his deposition alleged that Surajdeo

Page | 4
Mahto (Appellant No.1) had lured the deceased away on the pretext of

watching cinema on 05.04.1987. PW­16 deposed that “Arun told him

that he was not ready to go. Surajdeo told him that he will bear

the cost. Thereafter on being pressurized by Surajdeo, Arun went

out with Surajdeo, Raj Kumar and Sunder”. PW­16 also deposed

that it was at his instance that Ishwari Mahto (PW­3A) went and

informed the police on 11.04.1987 about Arun’s disappearance, and

on 12.04.1987 he visited Govindpur Police Station and identified the

dead body of Arun. PW­16 further identified one of the seized lungis

belonging to Suarjdeo Mahto (Appellant No.1). The cross­examination

of PW­16 also brought to light the motive attributed to the accused

persons: the relations between the parties were strained after a

Panchayati (village meeting) had been held in connection with the

illicit relationship of the deceased with the sister of Appellant No.1.

8. Likewise, Ishwari Mahto (PW­3A) deposed that he had last seen

Arun in the company of Appellant No.1, Raj Kumar and Sundar on

05.04.1987, and he was informed by Appellant No.1 that they were

going to see the cinema. Ishwari Mahto further shed light on the feud

between the parties and he stated that “Previously the families of

Surajdeo and Arun had visiting and dining terms with each

other, but it stopped after the month of Magh”. Sunder Prasad

(PW­17) corroborated the deposition of PW­16, and stated that
Page | 5
Appellant No.1 pressurized Arun to accompany him and Raj Kumar to

watch Cinema. PW­17 also deposed to accompanying Appellant No.1,

Arun and Raj Kumar to the Cinema and further revealed that after the

Cinema, instead of returning back to their village, Appellant No.1

forced the group to visit Kumbhrawan village. PW­17 stated that upon

Appellant No.1’s insistence, they spent the night in Prakash Mahto’s

house (Brother­in law of Surajdeo; Appellant No.1). The next day, i.e.,

06.04.1987, when PW­17 insisted on returning back to the village,

Surajdeo Mahto (Appellant No.1) informed him that he and Arun will

be visiting Amwa Village.

9. Dilkeshwar Mahto (PW­2), Arun’s father­in­law, deposed that

Arun and Appellant No.1 visited his house in Amwa Village on the

evening of 06.04.1987 and stayed there till 08.04.1987. He further

deposed that “On Wednesday, I asked Arun and Surajdeo

insistently to stay further, but Surajdeo did not agree and took

Arun with him saying that they had to go Dopta.”

10. Bipat Mahto (PW­4), deposed that on Thursday, i.e., 09.04.1987,

he received information from his grandson that Arun was in

Kumbhrawan village and was staying at the house of Prakash Mahto

(Appellant No.2). Since PW­4 was Arun’s uncle and also resided in the

same village, he and his wife went to invite Arun to their place. He

Page | 6
stated, “We met Arun, Prakash and Surajdeo at that place. I

invited Arun to come to my place and take meal there. Prakash

told me that he had arranged food for them, hence they would

go after taking meal at his place.” He further stated that despite

Appellant No.2’s assurance, Arun did not come to their place. Later,

when PW­4’s wife went again to call Arun, she was informed by

Appellant No.2’s wife that Arun had gone back. Sheodani Mahto (PW­

3), who is the son of PW­4 and the cousin of the deceased, also

deposed about the presence of Arun in Kumbhrawan village on

09.04.1987. According to him, when he was returning back to the

village, he saw Arun on the outskirts of the village in the company of

Surajdeo, Prakash, Raj Kumar and Shankar, and upon asking them

where they were going, Surajdeo informed PW­3 that all of them were

going towards Kakolat village.

11. We may now consider the statements of Bharat Singh (PW­10),

Kashi Mahto (PW­11), Ram Prasad (PW­12), Baleshwar Prasad (PW­13)

and Mathura Saw (PW­14). PW­10 and PW­11 deposed that on the

night of 09.04.1987, they had heard a motor vehicle (tractor) going in

the direction of Kakolat. However, PW­10 and PW­11 had not seen the

passengers in the vehicle. PW­12, PW­13 and PW­14 were all present

near PW­14’s shop in the late hours of 09.04.1987 and they deposed

about seeing two persons returning from Kakolat. PW­12 went further

Page | 7
and stated that he was able to identify the persons who had stopped

near PW­14’s shop. Upon seeing the accused persons in Court, PW­12

identified Appellant No.2 as one of the persons who had come to the

shop that night. PW­12 in his cross­examination admitted that the

police had not asked him to take part in a Test Identification Parade

[in short, “T.I.P.”]. It is pertinent to mention that this set of evidence

only finds relevance because the dead body of Arun was discovered in

Ram Sagar Ahar which was near Kakolat village.

12. The evidence of Kailash Mahto (PW­1) and Umeshwar Prasad

(PW­5) also bears some relevance to the prosecution’s case. PW­1

deposed that on 09.04.1987 he was requested by PW­16 to search for

Arun. He further stated that the next day, i.e., 10.04.1987, he went to

the market and there he found Appellant No.1. PW­1 claims that when

he enquired about Arun’s whereabouts from him, Surajdeo Mahto

(Appellant No.1) told him that after viewing the cinema, Arun had gone

to Amwa village whereas he went to Dopta village. PW­5 too has

deposed that he met Surajdeo on 10.04.1987 at Barnwal Medical Hall

at Hisua where Appellant No.1 told him that Arun had gone to Delhi.

13. Ram Brikch Paswan (PW­8), Chawkidar Circle No.9, was the one

who discovered the dead body of Arun on 11.04.1987. In his cross­

examination he deposed that he had heard rumors of a dead body in

Ram Sagar Ahar on the night of 10.04.1987 itself, however, it being

Page | 8
night time and the place being a forested area, he could go there on

the following day only. PW­6, is the Doctor who conducted the post

mortem examination of the dead body. Upon examining the injuries

present on the deceased’s body, PW­6 opined that the injuries were

sufficient to cause death in the normal course of nature, and the time

elapsed from death was 36 to 72 hours.

14. The case of the accused persons, as recorded in their statements

under section 313 of the Code of Criminal Procedure, 1973 was one of

denial. No other evidence was led by the defence.

15. The Trial Court was conscious of the fact that in order to prove

the guilt of the accused by means of circumstantial evidence, the

chain of evidence should be completed so as to exclude all the

hypothesis of innocence of the accused. Upon extensively scrutinizing

the deposition of witnesses, the Trial Court observed that there was a

paucity of eyewitnesses to explain circumstances in which the

deceased met his end and the evidence on record fell short of

establishing the complicity of Chando Mahto, Shankar Mahto and Raj

Kumar Mahto. The Court, however, held that the circumstantial

evidence on record did suggest that Appellant No.1 lured the deceased

out of his house on 05.04.1987; remained with him all along;

Appellant No.2 then joined them on 09.04.1987; and thereafter the

present appellants conspired and murdered the deceased near

Page | 9
Kakolat. Negating the contentions raised by the defence, the Trial

Court believed the testimony of PW­16 in toto and held that purported

motive as well as the identification of incriminating material by PW­16

further established the guilt of the appellants. While the Trial Court

observed that there were some inconsistencies in the case put forth by

the prosecution, but those were held to be “petty details” and minor

contradictions.

16. The Trial Court further noted that Appellant No.1 had exhibited

behaviour that could not have been considered normal. Judicial notice

of the false and evasive replies given by Appellant No.1 to PW­1 and

PW­5 when they inquired about the whereabouts of the deceased was

also taken. The Court held that since various links in the chain of

evidence have been satisfactorily proved, the false explanation given

by Appellant No.1 could be construed as an additional link in the

chain of evidence, which would lend further support to the

prosecution case. The Court further observed that when enquiries

were taking place, instead of helping in the search of Arun, Appellant

No.1 absconded, and he surrendered before the court on 18.04.1987

only, when coercive measures were undertaken to compel his

appearance. Lastly, unconvinced by the defense taken by the

Appellant, the Trial Court opined that the plain denial of the

prosecution allegations by the accused persons was nothing but an

Page | 10
attempt to screen themselves from the “rigours of legal punishment”.

The Trial Court thus held that the circumstantial evidence in the

instant case was clinching, and consequently convicted the present

appellants.

17. Discontented with their conviction, the appellants preferred an

appeal before the Patna High Court. Upon a reappraisal of the

evidence on record, the High Court observed that the prosecution

witnesses were able to provide a date and stage wise testimony in

order to prove the prosecution case. The High Court further laid

emphasis on the false information provided by Appellant No.1 to PW­5.

Considering these aspects, the High Court vide the impugned

judgement dated 20.05.2010 affirmed the findings of the Trial Court

and upheld the conviction and sentence of the appellants.

18. The aggrieved appellants are now before this Court.

CONTENTIONS

19. We have heard Learned Counsel for the appellants at

considerable length. The principal contention is that the entire case

rested on circumstantial evidence and there was no eye­witness to the

alleged incident. Learned Counsel submitted that no independent

witnesses had been examined by the prosecution and all the witnesses

were either relatives or close friends of the complainant party. The

Page | 11
Counsel further pressed that the Courts below have completely erred

in relying upon the testimony of PW­10 to PW­14. As far as Appellant

No.2 is concerned, it was submitted that only evidence against him

was that of Sheodani Mahto (PW­3) and Baleshwar Prasad Yadav (PW­

12). The Counsel asserted that PW­3 had seen the deceased in the

company of Appellant No.2 two days prior to the recovery of the dead

body, and hence the evidence of PW­3 did not support the prosecution

case. Casting doubts on the credibility of the evidence of PW­12, it was

claimed to be highly improbable that PW­12 was able to see the face of

Appellant No.2 only through the light of a lantern on a pitch­dark

night. Learned Counsel further contended that the failure on the part

of the investigating agency not to send the knife recovered at the spot

of occurrence for forensic examination was fatal to the prosecution

case. Hence, it was urged that the Courts below fell in grave error in

convicting the appellants merely on the basis of ‘last seen theory’.

20. In all fairness, we may notice an additional plea taken by

Appellant No.1, which has been raised for the first time before this

Court. It was claimed that Appellant No.1 was a ‘juvenile’ on the date

of occurrence. In support of such claim, Learned Counsel relied on the

copies of ‘School Leaving Certificate’ along with an ‘admit card’ issued

by the Bihar School Examination Board, according to which Appellant

No.1 was purportedly born on 01.03.1970. As the date of occurrence

Page | 12
was between 09.04.1987 to 11.04.1987, it is submitted that Appellant

No.1 was 17 years of age at that time and therefore, a juvenile. To

further buttress this claim, Learned Counsel for the appellants drew

our attention to section 7A of the Juvenile Justice (Care and

Protection of Children) Act, 2000 as well as the decision of this Court

in Abuzar Hossain alias Gulam Hossain v. State of West Bengal1.

21. On the other hand, Learned Counsel appearing for the State of

Bihar submitted that there has been a concurrent finding of guilt by

two courts on minute examination of the evidence on record which

does not warrant any interference by this Court. Relying upon

Inspector of Police, Tamil Nadu v. John David 2, it was urged that

conviction in cases of circumstantial evidence is permissible. The State

Counsel passionately argued that the chain of circumstances in the

present case is complete in every respect. He made pointed reference

that First, the motive, as recorded by the Trial Court, was clearly

established in the present case. Second, both the courts below have

concurrently held that the deceased was last seen alive in the

company of the Appellants. He cited State of Rajasthan v. Kashi

Ram3, to urge that in situations when the deceased was last seen in

the company of the accused, a presumption would arise that the said

1(
2012) 10 SCC 489, ¶ 39
2
(2011) 5 SCC 509, ¶ 33 to 35
3
(2006) 12 SCC 254, ¶19­24

Page | 13
accused murdered the deceased. It was argued that presumption has

not been dislodged by the Appellants in the present case. Third, the

guilt of the appellants can be adduced from their conduct as not only

did they lure the deceased on the pretext of watching the cinema, but

also gave false and misleading information about the deceased’s

whereabouts. Fourth, the seizures/recoveries made during the

investigation do establish the involvement of appellants, as one of the

two lungis recovered at the place of occurrence was identified as that

belonging to Appellant No.1. Fifth, the medical examination does

establish that the death of the deceased was caused by unnatural

means and, Sixth, the dead body which was recovered has been

identified as that of Arun.

22. Learned State Counsel further canvassed that all the material

witnesses, PW­1 to PW­14, have corroborated each other’s versions.

Drawing force from the decisions in Sukhar v. State of U.P.4 &

Badruddin Rukonddim Karpude v. State of Maharashtra 5, it was

submitted that the principles of res gestae are applicable to the facts

and circumstances of this case, and the statements made by one

witness to another are admissible in evidence. He also urged that the

absence of T.I.P. in the present case would not be fatal to the case of

the prosecution6.

4

(1999) 9 SCC 507, ¶ 5 to 10
5
(1981) Supp SCC 1, ¶ 16
6
Malkhansingh v. State of M.P., (2003) 5 SCC 746, ¶ 7, 8 to 16

Page | 14

23. As regard to the plea of Appellant No.1 being a juvenile raised for

the first time before this Court, it was vehemently urged by the State

Counsel that the first appellant deliberately waited till this belated

point of time to raise the plea knowing fully well that in the event of an

inquiry ordered by the Court, there would be no record available to

contradict the documents put forth by him. He further pointed out

certain patent discrepancies in the documents supplied by Appellant

No.1, for instance, the documents did not bear his name, but instead

the name of one ‘Suryadev Prasad’ was mentioned. In furtherance of

his arguments, the Counsel submitted that the purported documents

have not been proved in terms of section 35 of the Indian Evidence

Act, 1872, [in short, “IEA”] and as such could not be accepted. Our

attention was brought to the decision of this Court in Ravinder Singh

Gorkhi v. State of U.P.7, wherein, the plea of juvenility was rejected

because, inter­alia, there was an unexplained inordinate delay in

raising the plea.

ANALYSIS

24. We find that two questions fall for our consideration in the

instant appeal; (A) Whether the circumstantial evidence led in the

instant case is so impeachable that it establishes the guilt of the

appellants beyond any reasonable doubt? (B) Whether Appellant No.1

7
(2006) 5 SCC 584, ¶ 39 to 41

Page | 15
was a juvenile on the date of the occurrence?

25. It may be highlighted at the outset that although the powers

vested in this Court under Article 136 of the Constitution are wide,

this Court in a criminal appeal by special leave will ordinarily loath to

enter into a fresh re­appraisement of evidence and question the

credibility of witnesses when there is a concurrent finding of fact, save

for certain exceptional circumstances. While it is difficult to lay down

a rule of universal application, it has been affirmed time and again

that except where the assessment of the High Court is vitiated by an

error of law or procedure, or is based on misreading of evidence, or is

inconsistent with the evidence and thus has led to a perverse finding,

this Court will refrain from interfering with the findings of the Courts

below.

26. Regardless of such self­imposed restrain, and in the interest of

justice, we have given thoughtful consideration to the rival

submissions and have endeavored to peruse and discussed the entire

evidence on record to ascertain whether or not the concurrent finding

of conviction suffers from any perversity and/or whether the

conviction of the appellants is legally and factually sustainable.

A. Whether the guilt of the accused has been proved beyond

reasonable doubt?

Page | 16

27. This Court, in its much­celebrated judgment of Sharad

Birdhichand Sarda v. State of Maharashtra8, has elaborately

considered the standard necessary for recording a conviction on the

basis of circumstantial evidence and has further held:

“153.xxx xxx xxx

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

xxx xxx xxx

(2) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,

(3) The circumstances should be of a conclusive nature
and tendency,

(4) They should exclude every possible hypothesis except
the one to be proved, and

(5) There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.”

These five cardinal principles have been reiterated on numerous

occasions, including in the recent decisions in Mohd. Younus Ali

Tarafdar v. State of W.B9 & R. Damodaran v. State Represented

8
(1984) 4 SCC 116, ¶ 153
9
(2020) 3 SCC 747, ¶ 10

Page | 17
by the Inspector of Police10. Keeping these conditions in mind, we

shall now examine the case at hand.

28. It appears to us that the following circumstances need to be

considered to arrive at the guilt of the appellants: (i) Last seen theory;

(ii) Motive & (iii) false information provided and subsequent conduct of

the appellants.

(i) Last seen theory

29. The case of the prosecution in the present case heavily banks

upon the principle of ‘Last seen theory’. Briefly put, the last seen

theory is applied where the time interval between the point of when

the accused and the deceased were last seen together, and when the

victim is found dead, is so small that the possibility of any other

person other than the accused being the perpetrator of crime becomes

impossible. Elaborating on the principle of “last seen alive”, a 3­judge

bench of this Court in the case of Satpal v. State of Haryana11 has,

however, cautioned that unless the fact of last seen is corroborated by

some other evidence, the fact that the deceased was last seen in the

vicinity of the accused, would by itself, only be a weak kind of

evidence. The Court further held:

“……………..Succinctly stated, it may be a weak kind of

10
2021 SCC OnLine SC 134, ¶ 13
11
(2018) 6 SCC 610, ¶ 6

Page | 18
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.”

30. We may hasten to clarify that the fact of last seen should not be

weighed in isolation or be segregated from the other evidence led by

the prosecution. The last seen theory should rather be applied taking

into account the case of the prosecution in its entirety. Hence, the

Courts have to not only consider the factum of last seen, but also have

to keep in mind the circumstances that preceded and followed from

the point of the deceased being so last seen in the presence of the

accused.

31. The prosecution in the present case has undoubtedly established

that the deceased was last seen alive in the company of the appellants,

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and has also adduced evidence about the events leading up to and

following the point of last seen. The depositions of PW­2, PW­3A, PW­

16 and PW­17 do suggest that prior to the point of last seen, the

deceased was constantly in the company of Appellant No.1. PW­3 and

PW­4 are the persons who lastly saw the deceased alive on

09.04.1987, and they have categorically deposed that they had seen

the deceased along with the appellants. Through the depositions of

PW­1, PW­5, & PWs 10 to 14 the prosecution has attempted to shed

light on the events that occurred post the point of last seen.

32. The contention that most of the prosecution witnesses were

either related or close to the complainant party and their testimony

could not be relied upon in the absence of corroboration by any

independent witnesses, in our opinion, is without much substance. It

is trite in law that the job of the prosecution is to put forth the best

evidence that is collected during the investigation. Although it is ideal

that the prosecution case is further substantiated through

independent witnesses, but it would be unreasonable to expect the

presence of third­parties in every case. This Court has consistently

held that the prosecution’s case cannot be discarded merely on a bald

plea of all witnesses being related to the complainant party. Hence, in

order to draw an adverse inference against the non­examination of

independent witnesses, it must also be shown that though the best

Page | 20
evidence was available, but it was withheld by the prosecution.

33. That apart, PW­3 saw Arun and the Appellants on the outskirts

of Kumbhrawan village, whereas, PW­4 saw Arun and the appellants

inside Appellant No.2’s house. Neither of these witnesses claim to have

seen the deceased and the appellants at a public place. Thus, it would

not be illogical to infer that there was no independent witness to this

occurrence. Further, the deposition of both PW­3 and PW­4 seems

natural and nothing has been adduced in their cross­examination for

us to disbelieve their testimonies.

34. The Counsel for the Appellants further assailed the last seen

theory and submitted that even if the deposition of PW­3 was

considered true, he had seen Arun in the company of the appellants

on 09.04.1987, which was two days before the discovery of the dead

body. It was, thus, argued that the intervening time period between

the two events could not rule out the possibility of intervention by a

third party and as such there wasn’t a continuous chain of

circumstances. While this argument seems attractive at the first

instance, but, when considered in the light of testimonies made by the

independent witnesses PW­6 and PW­8, it stands completely belied.

The Prosecution case is that both the Appellants committed the

murder on the night of 09.04.1987. PW­8, who discovered the body of

Arun on 11.04.1987, deposed that he had heard rumors about the

Page | 21
dead body the previous night itself, however, on account of it being

dark and a forested area, he was only able to proceed to the spot the

next day. Given that the body was lying on the spot at least since

10.04.1987, the instant crime could have been committed on or before

10.04.1987. The medical evidence in the present case further braces

the prosecution story. PW­6, the Doctor, examined the body of the

deceased on 12.04.1987. In his opinion, the time elapsed since the

death of Arun was 36 to 72 hours. Thus, the medical evidence fully

corroborates the prosecution story of the murder having being taken

place on 09.04.1987. We also note that the Courts below have dealt

with this issue elaborately and have held that the murder of the

deceased indeed took place on 09.04.1987. We see no reason to take a

contrary view.

35. Counsel for the State appears to be right in relying upon the

decision of this Court in Kashi Ram (Supra) to assert that once the

fact of last seen is established, the Accused must offer some

explanation as to the circumstances in which he departed the

company of the deceased. This position of law, as covered under

section 106 of the IEA, was duly considered in the case of Satpal

Singh (Supra), wherein, this Court clarified that if the accused fails to

offer any plausible explanation, an adverse inference can be drawn

against the accused. In the instant case also, Appellant No.1 has been

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unable to offer any explanation as to circumstances in which he

departed from the company of the deceased.

36. As regard to the reliability of the depositions of PW­10 to PW­14,

the primary contention is that except PW­12, none of the other

witnesses were able to identify the present appellants. It was further

contended that the testimony of PW­12 seems doubtful as it was

highly improbable that the witness was able to see Appellant No.2

through the light of a lamp. Assuming that the depositions of PW­10,

PW­11, PW­13 and PW­14 do not add much value to the case in hand,

the question whether PW­12 could or could not identify Appellant No.2

is purely a factual issue and courts below have taken a concurrent

view in relation thereto. Suffice to say that PW­12 was able to identify

Appellant No.2 because of the chicken­pox marks on his face. Even in

the initial statement recorded by the police, PW­12 had maintained

that one of the two persons who he had interacted with on the night of

09.04.1987, had chicken­pox scars on his face.

37. Upon considering the prosecution evidence in its entirety and

having meditated on the grounds raised by the appellants to every

possible extent, we find no reason to disbelieve the prosecution

version of last seen theory against the appellants.

(ii) Motive

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38. If motive in a case is attributed to an accused(s) and thereafter

proved, the probability of the crime being committed by the said

accused is intensified. It is for this reason, that in cases of

overwhelming circumstantial evidence, proof of motive will be an

important piece of corroborative evidence, as well as, form a vital link

in the chain of evidence.

39. The motive attributed to the appellants in this case is that they

murdered the deceased because he was allegedly having an illicit affair

with Rita, sister of Appellant No.1. While none of the witnesses have

specifically deposed about the deceased having an affair with Rita, the

motive, as alleged, does find some corroboration in the deposition of

PW­1, PW­3A, and PW­16. It is revealed from the testimony of PW­3A,

that initially there were cordial and friendly relations between the 1 st

Appellant and deceased’s family but the same became sour after the

month of February. PW­1 who is a fellow villager has corroborated the

testimonies of PW­3A. PW­16 has categorically deposed that a

Panchayat had been called in regards to the illicit relationship of the

deceased with Rita.

40. The fact of the deceased having an affair with the sister of

Appellant No.1 has of course not been established beyond doubt but

the factum of calling Panchayat so that the issue does not spiral out of

control does suggest that Appellant No.1 carried a motive to eliminate

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the deceased. We may not lose sight of the fact that the events had

occurred in the year 1987, when the rural Indian society was

irrepressibly conservative, and even the slightest rumor of extra­

marital affairs could flare­up tensions. Considering these ground

realities, the Trial Court, in our opinion correctly recorded that the

motive as alleged had been sufficiently proved by the prosecution. We

also note, that the Counsel for Appellants has not mounted any

substantial challenge on the point of motive, and as such, we see no

reason to interfere with the indictment of Appellant No.1 on the point

of motive.

(iii) False information provided by Appellant No.1 and his

subsequent conduct.

41. We may now briefly consider the false information provided by

Appellant No.1 to PW­1 and PW­5. Both of these witnesses individually

met Appellant No.1 on 10.04.1987 and both of them enquired about

the whereabouts of Arun. Appellant No.1 lied to PW­1 and told him

that after viewing the Cinema, Arun alone had proceeded to Amwa

whereas Appellant No.2 had gone to visit Dopta. Even more curiously,

Appellant No.1 informed PW­5 that Arun had left for Delhi. It is clear

to us that the false information provided by the first appellant was an

attempt to hide his guilt by de­railing the search efforts that were

being conducted. Appellant No.1 thereafter absconded and

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surrendered before the court only after coercive measures were taken.

We are, thus, inclined to agree with the State Counsel that the false

information given by Appellant No.1 and his post occurrence conduct

is relevant to prove an additional link in the chain of incriminating

circumstances.

42. There is, however, a qualitative difference in the evidence led by

the prosecution to prove charges against Prakash Mahto (Appellant

No.2). The prosecution’s case is that it was the 1st Appellant

(Surajdeo Mahto) who allured the deceased and persuaded him to

accompany the said appellant to watch cinema. It is neither their case

nor have the prosecution witnesses deposed that Appellant No. 2 was

involved in the persuasive abduction of the deceased from his house

on 05.04.1987. This has to be seen in the context of motive behind

the offence. It is proved on record that the 1st Appellant had an axe to

grind against the deceased who was allegedly having illicit relationship

with his sister. There is no motive alleged or proved which would have

swayed Appellant No. 2 to commit murder of the deceased. Still

further, prosecution has led no evidence that there was any meeting of

mind between the 1st and the 2nd Appellant on or before 08.04.1987,

or that they hatched any conspiracy together to commit the murder of

Arun. There is also no evidence on record to suggest that Appellant

No.1 disclosed his intention to commit murder of deceased Arun to the

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2nd Appellant.

43. It is true that the prosecution has led evidence comprising the

statements of PW­3 and PW­4 who had lastly seen the deceased alive

on 09.04.1987 in the company of the 1 st and the 2nd Appellants.

However, until and unless the last seen theory is substantiated by

other circumstantial evidence to constitute an unbreakable chain of

events, the conviction cannot rest solely on the basis that the 2 nd

Appellant was also present along with Appellant No.1 in the company

of the deceased when they were seen together on 09.04.1987.

44. It is pertinent to mention that some incriminating material

consisting of one pair of slippers, one handkerchief, a knife, jerrycan

and two lungis were found and seized at the place of occurrence.

While PW­16, namely, father of the deceased has identified one of the

seized lungis belonging to Appellant No.1, none of the recovered

articles have been attributed to the 2nd Appellant. The only substantial

evidence against the 2nd Appellant is that he too was in the company of

the deceased and Appellant No.1 on 09.04.1987, i.e., they were seen

together lastly. Even if we were to presume that the deposition of

PW­12 identifying Appellant No.2 on the night of 09.04.1987 to be

true, such evidence, may create a strong suspicion in respect of

involvement of the 2nd Appellant in the murder of the deceased, but

then, mere suspicion cannot be accepted as impeccable evidence to

prove his guilt beyond any doubt.

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45. Further, there is post occurrence circumstantial evidence led

against Appellant No.1, namely, that he did not disclose the

whereabouts of the deceased and then surreptitiously disappeared

from the scene till he surrendered in Court. There is no such

allegation of being evasive or absconding post occurrence levelled

against Appellant No.2. There are, thus, missing links in the

prosecution case so far as the 2nd Appellant is concerned.

Consequently, and for the reasons aforestated, we find that the case of

Prakash Mahto (Appellant No.2) is distinguishable from that of

Surajdeo Mahto (Appellant No.1) and the prosecution has not been

able to prove the guilt of 2nd Appellant beyond the pale of doubt. The

2nd Appellant is, thus, entitled to the benefit of doubt.

B. Appellant No.1’s plea of Juvenility

46. There is no gainsaying that section 7­A of Juvenile Justice (Care

and Protection of Children) Act, 2000 [in short, “JJ Act”] sets out the

procedure to be followed by a court to determine the claim of

juvenility. Its proviso enables to raise the claim of juvenility before

“any court” and at “any stage”, even after the final disposal of the case.

However, in order to take advantage of the aforesaid provision, there

lies an initial onus on the accused to produce some cogent evidence to

prima facie establish the juvenility on the date of commission of the

offence.

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47. In the instant case, the 1st Appellant has raised plea of juvenility

for the first time before this Court. He has placed before us a School

Leaving Certificate along with an Admit Card issued by the Bihar

School Examination Board, wherein, Appellant No.1’s date of birth is

claimed to be 01.03.1970. It has been asserted that the 1 st Appellant

was 17 years old at the time of occurrence. Learned counsel for the

appellants has also drawn our attention to the decision in Abuzar

Hossain (Supra), wherein, this Court exhaustively dealt with the

provisions and the scope of JJ Act and held as under:

“39.3. As to what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial
burden cannot be catalogued nor can it be laid down as to
what weight should be given to a specific piece of evidence
which may be sufficient to raise presumption of juvenility
but the documents referred to in Rules 12(3)(a)(i) to (iii)
shall definitely be sufficient for prima facie satisfaction of
the court about the age of the delinquent necessitating
further enquiry under Rule 12. The statement recorded
under Section 313 of the Code is too tentative and may not
by itself be sufficient ordinarily to justify or reject the claim
of juvenility. The credibility and/or acceptability of
the documents like the school leaving certificate or
the voters’ list, etc. obtained after conviction would
depend on the facts and circumstances of each case
and no hard­and­fast rule can be prescribed that
they must be prima facie accepted or rejected….”
Page | 29
(Emphasis Supplied)

48. When the documents relied upon by 1 st Appellant are analysed

in the backdrop of these settled principles, we find that the same do

not inspire any confidence. The name of Appellant No.1 does not

appear on the documents, instead these belong to one ‘Suryadev

Prasad’. It is nearly impossible to verify the veracity of the two

documents relied upon by Appellant No.1 at this highly belated stage.

Further, the record of the Trial Court does suggest that the name of

the 1st Appellant is ‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In the

absence of any cogent material indicating that the subject –

documents pertain to 1st Appellant only, no case to hold any fact­

finding enquiry is made out. Consequently, we decline to place

reliance on the documents in question and reject the plea of juvenility

raised by the 1st Appellant.

Conclusion

49. In light of the above discussion, the instant appeal is partly

allowed. While the conviction and sentence of Surajdeo Mahto

(Appellant No.1) is upheld and appeal qua him is dismissed, the 2 nd

Appellant (Prakash Mahto) is acquitted of the charges. The bail bonds

furnished by the 1st Appellant are cancelled and he is directed to

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surrender to undergo remainder of the sentence. The 2 nd Appellant’s

bail bonds are discharged.

……………………….. CJI.

(N.V. RAMANA)

………..………………… J.

(SURYA KANT)

……………………………J.

(ANIRUDDHA BOSE)
NEW DELHI
DATED : 04.08.2021

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