Surajdeo Mahto and Anr. v. the State of Bihar
SURYA KANT, J.
1. Surajdeo Mahto (Appellant No.1) and Prakash Maht o
(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 convicted
for offences under Section 302 read with section 34 of the Indian Penal
Code [in short, “IPC”] read with Section 120-B of the IPC and ha ve
been sentenced to life imprisonment for each of the offences. 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 (PW-17) 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 (PW-17) 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 in-laws’
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 (PW-1)
to join him in looking for Arun. They found out that Surajdeo Mahto and
Arun had visited the latter’s in-laws’ place on 06.04.1987 and stayed
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 Ar un,
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instead, he too disappeared and was not seen for the next few days.
Pursuant to Ramji’s request, PW-1 visited Dopta on 10.04.1987 but he
too was unable to track down Arun. Since Arun was still unt raceable,
Ramji Mahto, through his nephew Ishwari Mahto (PW-3 A), 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 (PW-8), Chowkidar,
Circle No. 7, heard rumours of a dead body in Ram S agar 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 (PW-18), Officer-In-charge, Govindpur Police Station
reached the spot and prepared the inquest report in the pr esence of
witnesses. Upon inspecting the place of occurrence, additional material
such as one pair of slippers, one handkerchief, a knife and a je rrycan
made of plastic were also discovered and seized. A seizure l ist was
prepared in the presence of witnesses. The dead body was then sent for
post mortem examination.
5. On 12.04.1987, Ramji Mahto (PW-16) received information
that a dead body of a male person was brought in by the Govind pur
Police Station. Subsequently, Ramji Mahto along with some co-villagers
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 above-stated
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 3rd Additional Sessions Judge, Nawadah
and charges were framed against the accused persons for offences
under sections 364, 120-B 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 u pon by the
prosecution. The case of the prosecution rested hea vily upon
circumstantial evidence, including deposition of Ramji Mahto (PW-16),
father of the deceased. PW-16 in his deposition alleged that Sura jdeo
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
Mahto (Appellant No.1) had lured the deceased away on the pretext of
watching cinema on 05.04.1987. PW-16 deposed that “Arun told him
that he was not ready to go. Surajdeo told him that he w ill bear the
cost. Thereafter on being pressurized by Surajdeo, Arun went out
with Surajdeo, Raj Kumar and Sunder ”. PW-16 also deposed that it
was at his instance that Ishwari Mahto (PW-3A) 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.
PW-16 further identified one of the seized lungis belonging to Suarjdeo
Mahto (Appellant No.1). The cross-examination of PW-16 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 (PW-3A) deposed that he had la st
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 (PW-17)
corroborated the deposition of PW-16, and stated that Appellan t No.1
pressurized Arun to accompany him and Raj Kumar to watch Cinema.
PW-17 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. PW-17 stated that upon Appellan t No.1’s
insistence, they spent the night in Prakash Mahto’s house (Brot her-in
law of Surajdeo; Appellant No.1). The next day, i.e., 06.04.1987, when
PW-17 insisted on returning back to the village, Su rajdeo Mahto
(Appellant No.1) informed him that he and Arun will be visiting Amwa
Village.
9. Dilkeshwar Mahto (PW-2), Arun’s father-in-law, 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 .”
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10. Bipat Mahto (PW-4), 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 M ahto
(Appellant No.2). Since PW-4 was Arun’s uncle and also resided in the
same village, he and his wife went to invite Arun to their plac e. He
stated, “We met Arun, Prakash and Surajdeo at that place. I invite d
Arun to come to my place and take meal there. Prakash to ld me
that he had arranged food for them, hence they woul d 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 PW-4’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 PW-4 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 PW-3
that all of them were going towards Kakolat village.
11. We may now consider the statements of Bharat Singh (PW-
10), Kashi Mahto (PW-11), Ram Prasad (PW-12), Baleshwar Pras ad
(PW-13) and Mathura Saw (PW-14). PW-10 and PW-11 deposed that
on the night of 09.04.1987, they had heard a motor vehicle (trac tor)
going in the direction of Kakolat. However, PW-10 and PW-11 had not
seen the passengers in the vehicle. PW-12, PW-13 and PW-14 were all
present near PW-14’s shop in the late hours of 09.04.1987 and the y
deposed about seeing two persons returning from Kakolat. PW-12 went
further and stated that he was able to identify the pers ons who had
stopped near PW-14’s shop. Upon seeing the accused persons in Court,
PW-12 identified Appellant No.2 as one of the persons who had come to
the shop that night. PW-12 in his cross-examination admitted t hat 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 (PW-1) and Umeshwar Prasad
(PW-5) also bears some relevance to the prosecution’s case. PW-1
deposed that on 09.04.1987 he was requested by PW-16 to search for
Arun. He further stated that the next day, i.e., 10.04.1987, he went t o
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
the market and there he found Appellant No.1. PW-1 claims that when
he enquired about Arun’s whereabouts from him, Suraj deo Mahto
(Appellant No.1) told him that after viewing the cinema, Arun had gone
to Amwa village whereas he went to Dopta village. PW-5 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 (PW-8), 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
night time and the place being a forested area, he could go there on the
following day only. PW-6, is the Doctor who conducted the post mortem
examination of the dead body. Upon examining the injuries present on
the deceased’s body, PW-6 opined that the injuries were su fficient 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 or der 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 wa s a paucity of
eyewitnesses to explain circumstances in which the decease d 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 sugg est
that Appellant No.1 lured the deceased out of his house on 05.04.1987;
remained with him all along; Appellant No.2 then joi ned them on
09.04.1987; and thereafter the present appellants conspired and murdered
the deceased near Kakolat. Negating the contentions rais ed by the
defence, the Trial Court believed the testimony of PW-16 in t oto and
held that purported motive as well as the identification of incriminating
material by PW-16 further established the guilt of the appellants. While
the Trial Court observed that there were some inconsistenci es in the
case put forth by the prosecution, but those were held to be “petty details”
and minor contradictions.
925
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 P W-1 and
PW-5 when they inquired about the whereabouts of the deceased w as
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 wer e
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 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 reapprai sal 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 PW-5. Considering
these aspects, the High Court vide the impugned judgement dated
20.05.2010 affirmed the findings of the Trial Court and up held 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 eye-witness 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 Counsel further
pressed that the Courts below have completely erred in relying upon the
testimony of PW-10 to PW-14. As far as Appellant No.2 is concerned, it
was submitted that only evidence against him was that of Sheodani Mahto
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
(PW-3) and Baleshwar Prasad Yadav (PW-12). The Counsel asser ted
that PW-3 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
PW-3 did not support the prosecution case. Casting do ubts on the
credibility of the evidence of PW-12, it was claimed to be highly
improbable that PW-12 was able to see the face of Appellant No.2 only
through the light of a lantern on a pitch-dark 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 f or 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 b y
Appellant No.1, which has been raised for the first time be fore 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
was between 09.04.1987 to 11.04.1987, it is submitted that Appella nt
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 Protec tion of
Children) Act, 2000 as well as the decision of this Court in Abuzar
Hossain alias Gulam Hossain v. State of West Bengal 1.
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 St ate 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 est ablished 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.
1 (2012) 10 SCC 489, ¶ 39
2 (2011) 5 SCC 509, ¶ 33 to 35
927
He cited State of Rajasthan v. Kashi Ram 3, to urge that in situations
when the deceased was last seen in the company of the ac cused, a
presumption would arise that the said 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 lung is 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, PW-1 to PW-14, have corroborated each other’s versio ns.
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 witn ess 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 th e case of the
prosecution6.
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 certa in patent
discrepancies in the documents supplied by Appellant No.1, for instance,
the documents did not bear his name, but instead the name o f 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 t he
3 (2006) 12 SCC 254, ¶ 19-24
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
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
decision of this Court in Ravinder Singh Gorkhi v. State of U.P . 7,
wherein, the plea of juvenility was rejected because, inter-al ia, 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 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 re-appraisement 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 tha t 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 self-imposed restrain, and in the int erest
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 conv iction of the
appellants is legally and factually sustainable.
A. Whether the guilt of the accused has been proved beyond
reasonable doubt?
27. This Court, in its much-celebrated judgment of Sharad
Birdhichand Sarda v. State of Maharashtra 8, has elaborately
considered the standard necessary for recording a conviction on the
basis of circumstantial evidence and has further held:
7 (2006) 5 SCC 584, ¶ 39 to 41
8 (1984) 4 SCC 116, ¶ 153
929
“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 by
the Inspector of Police 10. 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) La st 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 3-judge bench of this Court in the
case of Satpal v. State of Haryana11 has, however, cautioned that unless
9 (2020) 3 SCC 747, ¶ 10
10 2021 SCC OnLine SC 134, ¶ 13
11 (2018) 6 SCC 610, ¶ 6
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
the fact of last seen is corroborated by some other evidenc e, 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 evidence
by itself to found conviction upon the same singularly. But when it
is coupled with other circumstances such as the time when t he
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 w rong
explanation, absconds, motive is established, and t here 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 ac cused.
31.The prosecution in the present case has undoubtedly established
that the deceased was last seen alive in the company of the appellants,
and has also adduced evidence about the events leading up to and
following the point of last seen. The depositions of PW-2, PW-3A,
PW-16 and PW-17 do suggest that prior to the point of last s een, the
deceased was constantly in the company of Appellant No.1. PW-3 and
PW-4 are the persons who lastly saw the deceased alive on 09.04.1987,
and they have categorically deposed that they had seen th e deceased
along with the appellants. Through the depositions of PW-1, PW-5, &
PWs 10 to 14 the prosecution has attempted to shed light on the events
that occurred post the point of last seen.
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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 w ould be
unreasonable to expect the presence of third-parties in every case. This
Court has consistently held that the prosecution’s c ase cannot be
discarded merely on a bald plea of all witnesses being rel ated to the
complainant party. Hence, in order to draw an adverse inference against
the non-examination of independent witnesses, it must also be s hown
that though the best evidence was available, but it was withheld by the
prosecution.
33.That apart, PW-3 saw Arun and the Appellants on the outskirts
of Kumbhrawan village, whereas, PW-4 saw Arun and the appella nts
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 wit ness to this
occurrence. Further, the deposition of both PW-3 and PW-4 seems natural
and nothing has been adduced in their cross-examination 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 PW-3 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 PW-6 and PW-8, it stands
completely belied. The Prosecution case is that both the Ap pellants
committed the murder on the night of 09.04.1987. PW-8, who discovered
the body of Arun on 11.04.1987, deposed that he had heard rumors about
the 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 l east since
10.04.1987, the instant crime could have been committed on or before
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
10.04.1987. The medical evidence in the present case further b races
the prosecution story. PW-6, the Doctor, examined the body o f 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 tak en place on
09.04.1987. We also note that the Courts below have dealt with t his
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 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 PW-10 to
PW-14, the primary contention is that except PW-12, none of the other
witnesses were able to identify the present appellants. It was further
contended that the testimony of PW-12 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 PW-10, PW-11, PW-13
and PW-14 do not add much value to the case in hand, the question
whether PW-12 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 PW-12 was able to identify Appellant No.2
because of the chicken-pox marks on his face. Even i n the initial
statement recorded by the police, PW-12 had maintained that one of the
two persons who he had interacted with on the night of 09.04.1987, had
chicken-pox 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
933
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 i n 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 witnes ses have
specifically deposed about the deceased having an affair with Rita, the
motive, as alleged, does find some corroboration in the deposi tion of
PW-1, PW-3A, and PW-16. It is revealed from the tes timony of
PW-3A, that initially there were cordial and friendly relations between
the 1st Appellant and deceased’s family but the same became sour after
the month of February. PW-1 who is a fellow villager has corroborated
the testimonies of PW-3A. PW-16 has categorically depose d that a
Panchayat had been called in regards to the illicit relationsh ip of the
deceased with Rita.
40. The fact of the deceased having an affair with the sis ter 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 elimi nate 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 ir repressibly
conservative, and even the slightest rumor of extra-marital affairs could
flare-up tensions. Considering these ground realities, the Trial Court, in
our opinion correctly recorded that the motive as alleged ha d been
sufficiently proved by the prosecution. We also note, that the Couns el
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 PW-1 and PW-5. Both of these w itnesses
individually met Appellant No.1 on 10.04.1987 and both of them enquired
about the whereabouts of Arun. Appellant No.1 lied to PW-1 and told
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
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 PW-5 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 de-railing the search efforts that were being conducted.
Appellant No.1 thereafter absconded and 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 App ellant
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 w ith 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 2nd Appellant.
43.It is true that the prosecution has led evidence comprising the
statements of PW-3 and PW-4 who had lastly seen the decease d alive
on 09.04.1987 in the company of the 1st 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 conv iction
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 mate rial
consisting of one pair of slippers, one handkerchief, a knife, jerrycan and
two lungis were found and seized at the place of occurrence . While
935
PW-16, 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 PW-12 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 2 nd Appellant in the
murder of the deceased, but then, mere suspicion cannot be accepted as
impeccable evidence to prove his guilt beyond any doubt.
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 7-A of Juvenile Justic e
(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 l ies 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.
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),
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]
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 we ight
should be given to a specific piece of evidence which may be
sufficient to raise presumption of juvenility but the docume nts
referred to in Rules 12(3)(a)(i) to (iii) shall def initely be
sufficient for prima facie satisfaction of the cour t about the
age of the delinquent necessitating further enquiry under R ule
12. The statement recorded under Section 313 of the Code is
too tentative and may not by itself be sufficient ordinar ily to
justify or reject the claim of juvenility. The credibility and/or
acceptability of the documents like the school leav ing
certificate or the voters’ list, etc. obtained after conviction
would depend on the facts and circumstances of each case
and no hard-and-fast rule can be prescribed that they must
be prima facie accepted or rejected….”
(Emphasis Supplied)
48.When the documents relied upon by 1st 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 docume nts 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 1 st Appellant is
‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In the absence of a ny
cogent material indicating that the subject – documents pe rtain to 1 st
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 par tly
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 furni shed
937
by the 1 st Appellant are cancelled and he is directed to surrender to
undergo remainder of the sentence. The 2 nd Appellant’s bail bonds are
discharged.
Nidhi Jain Appeal partly allowed.
SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR
[SURYA KANT, J.]