1. Heard learned counsels for the parties.

2. This appeal is directed against the judgment and order dated 24th February, 2005 passed by learned Adhoc Additional Sessions Judge, FTC, Champua in S.T. Case No.91/54 of 2004 arising out of G.R. Case No.229 of 2003 corresponding to Joda P.S. Case No.90 of 2003 wherein the four accused persons having faced trial in the charge under Section 396 of the Indian Penal Code (hereinafter called “the IPC”) found guilty, convicted thereunder and sentenced to undergo rigorous imprisonment for life.

3. While all the four accused persons being Appellants preferred the present JCRLA, Appellant No.1, namely, Jatindra @ Bui Patra and Appellant No.4, namely Dukhabandhu Patra expired in the meantime. The appeal, therefore, is in respect of Appellant Nos.2 and 3, namely, Kuni Das @ Patra and Kapila Patra respectively. During course of trial, for the absence of Appellant Kuni Das @ Patra, her case was split up and S.T. Case No.96/88 of 2004 was numbered against split up record. All the four Appellants, however, faced the charge on 29th September, 2004. While Appellants Jatindra @ Bui Patra, Kapila Patra and Dukhabandhu Patra faced the charge in S.T. Case No.91/54 of 2004, Appellant Kuni Das faced the charge on the same day in S.T. Case No.96/88 of 2004. Both the above referred sessions trial cases having tried together, disposed of by the common judgment as referred to above in S.T. Case No.91/54 of 2004 as impugned herein.

4. The prosecution case, in short, is that a report was lodged by the Ward Member of village Patuapodar (P.W.1) under Joda Police Station in the district of Keonjhar to the effect that on 24th June, 2003, Tuesday at about 7.00 a.m. while the villagers of Patuapodar, namely, Smt. Rahas Naik and Smt. Hiramani Naik had been to the jungle for collection of “Tula” the seed of mahua flower detected an unknown dead body lying by the side of the road leading from Malda to Kasia. On such information, she called the gentlemen of the village as well as the Grama Rakhi, namely, Bhramar Dhibar and visited the spot where the dead body was detected. Having seen the dead body, she lodged the report before the Bameri Outpost whereupon the UD Case No.8 of 2003 was registered and enquiry was taken up.

5. In course of enquiry in the UD case, the Police detected one pocket diary from the dead body of the deceased with address Krushna Chandra Mohanta son of late Trilochan Mohanta of Pabitra, Keonjhar Town so also some phone numbers noted in the diary. The police gave information to the family members of said Krushna Chandra Mohanta, pursuant whereof the younger brother of Krushna Chandra Mohanta namely Umesh Chandra Mohanta along with Somanath Deo, Pabitra Kumar Rout and 4 to 5 persons arrived at the spot and identified the dead body of the deceased to be that of Chhotu @ Krushna Chandra Mohanta son of late Trilochan Mohanta of village Pabitra in the district of Keonjhar. It was also ascertained that on 22.06.2003 in the afternoon at about 4.30 p.m. one female with thin built, tall and fair complexion lady and two male persons with black complexion, oval shape, height 5.3” strong built and another 5.6” medium built contacted Krushna Chandra Mohanta, the deceased driver –cum- owner of Jeep bearing Regn. No.ORJ-5823 to go to Dubuna mines via Fhuljhar, Dudhpusi and Anra village. Krushna Chandra Mohanta proceeded with the above three persons in his Jeep bearing Regn. No.ORJ-5823 on hire and since then did not return with jeep to his home. During course of enquiry, the Police held inquest over the dead body of the deceased in presence of the witnesses, found the comb, two numbers of cassettes and other incriminating materials from the spot sent the dead body to government hospital, Barbil for post mortem. Received the post mortem report in which the medical officer opined the cause of death of the deceased might be due to head injury causing concussion/laceration of brain and intracranial hemorrhage. The doctor also opined the death could be within 60/72 hours at the time of post mortem examination. As the police found material suspecting murder of the person lodged a plain paper FIR before the OIC, Joda Police Station and accordingly the Joda P.S. Case No.90 of 2003 was registered and investigation commenced.

6. In course of the investigation the I.O seized the pocket diary under Ext.9, the sample earth, blood stained earth, cassette and napkin under Ext.10. The I.O. also seized the wearing apparel of the deceased under Ext. 1/11. Requisition was issued for engagement of S.O., DSFL along with dog squad, the I.O. examined the witness and took the inquest report of the deceased to the investigation record, received the post mortem report, visited the spot, apprehended accused Kapila Patra and Dukhabandhu Patra from village Anra, examined their family members and other witnesses, visited Ghatgaon and apprehended accused Jitendra @ Bui Patra, his wife, accused Kuni Das @ Patra and returned to the Police Station with the four accused persons. While in police custody, the accused persons volunteered to give their statements. The I.O. recorded the statement under Section 27 of the Evidence Act wherein the accused persons disclosed information regarding the place of concealment of the Jeep; as regards removal of the wheels of the Jeep and its place of concealment and pursuant to the statement the accused led the police and the witnesses to Gurubeda jungle and gave recovery of the jeep as well as wheels of the jeep concealed in separate place with number plate affixed to the jeep as ORJ-5823. The four wheels of the jeep were found removed from the body of the jeep. The body of the Jeep was seized under Ext.19 and the wheels under Ext. 20, the tires of the jeep under Ext. 21, R.C. book and document of the vehicle bearing Regn. No.ORJ-5823 under Ext.22. Issued requisition for collection of nail clippings, sample blood of the accused persons under Ext. 7, forwarded the accused Kuni Das for recording her statement under Section 164 Cr.P.C. seized the wearing apparels of the deceased under Ext. 25; the wearing apparels of accused Dukhabandhu Patra having blood stain under Ext. 26 and accused Kapila Patra under Ext. 27. Visited the spot where the accused persons took liquor, examined the owner of the said house, namely, Giridhari Mohanta (P.W.3). Visited the spot along with accused Jatindra @ Bui Patra where the accused identified the stone lying on the spot used in the commission of murder, seized the said stone under Ext. 28, conducted T.I. parade in respect of all the aforesaid four accused persons by issuing requisition under Ext. 29. T.I. parade in respect to another accused under Ext. 30, released the seized Jeep along with its four wheels on the zimma of Santosh Kumar Mohanta, the younger brother of the deceased along with R.C. book. Obtained the post mortem report and made query under Ext. 8/2 from the doctor, prepared the spot map under Ext. 31 and after completion of investigation submitted charge sheet.

7. The positive case of the Defence is that the Appellant Kuni Das @ Patra her husband deceased Appellant Jitendra had hired a Jeep on the relevant day which was white in colour. It, however, denied the other allegations.

8. In order to prove the culpability of the accused persons, the prosecution examined 13 witnesses in all and proved the documents under Exts. 1 to 33 besides the material objects under MO 1 to MO VIII. The defence, on the other hand, examined one witness, namely, Bhanumati Patra but did not adduce any documentary evidence. The learned court below upon analysis of the evidence led by the parties based on circumstantial evidence found the chain of circumstances unerringly pointing guilt on the accused persons living no hypothesis of their innocence and held them guilty, convicted them and sentenced as above.

9. Mr. Sougat Das, the Learned counsel appearing on behalf of the Appellants, inter alia, submitted that the prosecution case being one based on circumstantial evidence, none of the circumstances could be established to its hilt to form the chain that unerringly pointed the Appellants to be the author of the crime. It is further argued that the two vital circumstances viz; last seen theory and leading to discovery of the stolen jeep as well as the stone i.e. weapon of offence could not be proved by evidence beyond reasonable doubt to bring home the charge although the death of the deceased undisputedly is homicidal in nature. Elaborating the argument, it is submitted by the learned counsel that the circumstance of last seen theory in the given set of fact cannot be said to have been established in any manner as the statement of the witnesses in that regard is neither found consistent nor coherent in respect to their identification. Further, the gap in the time when the Appellants were last seen in the company of the Appellants and detection of the dead body is so long that it could not be said under any approximation that there was no third party intervention. Consequently, the sequence of events narrated by the witnesses’ vis-à-vis the circumstance of death and detection of dead body does not make chain to rule out any hypothesis that the Appellants and none else could be the author of the murder.

10. Learned Additional Standing Counsel Mr. Das, on the contrary, submitted that the evidence in respect to the identity of the Appellants seen in the company of the deceased last before the detection of the dead body being cogent and consistent coupled with circumstances such as leading to discovery appearing in the case has rightly been assessed by the learned trial court and require no interference.

11. Admittedly, there is no direct evidence through eye- witness account to prove the culpability of the Appellants in the case. The entire case hinges on circumstantial evidence. The various circumstances emerge in the crime that weighed the trial court to convict the Appellants are as follows:

"(I) The Appellant Kuni Das @ Patra and Kapila Patra along with deceased Appellant Jatindra @ Bui Patra were seen at the Trekker stand on the relevant date in the afternoon hired the Jeep of the deceased to go to Dubuna mines and as such the deceased Appellant Jatindra, Appellant Kuni and Kapila were last seen in the company of the deceased Krushna Chandra on 22.06.2003 in the afternoon.

(II) The jeep was seen at village Anra.

(III) Deceased Appellant Dukhabandhu and Kapila accompanied Deceased Appellant Jatindra and his wife Appellant Kuni Das @ Patra.

(IV) Deceased Krushna Chandra Mohanta died a homicidal death that took place within short time after he was last seen with the Appellants

(V) Appellants were well identified by the witnesses

(VI) Deceased Appellant Jatindra @ Bui Patra along with Appellant Kapila and deceased Dukhabandhu made disclosure statement and gave discovery of stolen Jeep, the stone i.e. weapon of offence pursuant to the information given by the deceased Appellant Jatindra leading the police and witnesses to the place of concealment and discovered the same pursuant to such statement as recorded under Section 27 of the Evidence Act."

12. In an offence U/s 396 IPC the act of murder is a vital element. At the outset, therefore, it is vital to examine if the evidence of the prosecution is adequate to hold the death of the deceased to be homicidal and further the same is one under Section 300 IPC.

13. In order to determine the above question, evidence adduced by the doctor has to be given primacy besides other evidence. In his sworn testimony the doctor deposed that on 25.06.2003 he was working as Pediatric Specialist at Government Hospital, Barbil. On that day on police requisition at about 4 p.m. he conducted post mortem examination over the dead body of deceased Chhotulu @ Krushna Chandra Mohanta son of Trilochan Mohanta of village Kabitra, P.S. Keonjhar Town. The dead body was identified by C-291 and his brother Umesh Chandra Mohanta (PW 4) and one Gouttam Mohanta. On examination he noticed externally:-

“(i) The body was swollen, putrefied and blisters of half formed. Innumerable maggots swarming over the body, tough protruded, penis was scrotum were engorged, skin easily pilled up 1cm long and ½ cm wide gap is sealed on right parietal area, it is scalp deep.

(ii) A whole of 1 cm diameter is seen over right side of face, brain was putrefied and liquefied and brown in colour. On discussion he found: Both the lungs were dark brown in colour and putrefied. Stomach was empty, graver and soft dark color and putrefied.

14. According to the doctor, the cause of the death of deceased was due to head injury causing concoction and laceration of brain and intra-cranial hemorrhage and the time since death was within 60 to 72 hours at the time of post mortem examination. He also opined that in ordinary course of nature the death can be possible by such injuries, which he had noticed and all the injuries are ante mortem in nature. The doctor proved his report vide Ext. 7. It is also stated by the doctor that on 18.03.2003 on police requisition he examined the seized stone and opined that the injuries on right parietal bone of the deceased can cause concoction and laceration on brain resulting intracranial hemorrhage leading to death can be caused by the stone under M.O. I and he proved his opinion vide Ext 8.

15. The defence has not challenged the evidence of the doctor at all. Consequently, the opinion of the doctor goes absolutely unchallenged. Further, the inquest report and even other circumstances at the spot leads only to the conclusion that the death is due to the result of injuries on the deceased and the same has been proved beyond doubt as rightly adjudged by the learned trial court that the death of the deceased is homicidal. Furthermore, in absence of any other material contrary to the evidence of the doctor the death is also proved one to be within the ambit of section 300 IPC.

16. Having once found the nature of death is proved to be homicidal and the same is murder within the meaning and import of section 300, the next question that confronts this Court is to decide whether the conclusion arrived at by the learned trial court in attributing the liability on the Appellants perpetrating the said death of the deceased while committing dacoity is correct and sustainable in the eye of law

17. It is trite that in a case based on circumstantial evidence, law postulates two fold requirements: - (i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. (ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

18. The Apex Court in the case of Sharad Birdichand Sharda vs. State of Maharashtra (1984) 4 SCC 116 [LQ/SC/1984/171] has enunciated the aforesaid principle as under:- “The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence”.

19. In the instant case since the circumstance of last seen theory has been identified as one of the most important circumstances the important aspect to be considered is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, Rambraksh v/s State of Chhattisgarh, and Anjan Kumar Sharma v/s State of Assam the Apex Court enunciated the following principles;

“The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than theAccused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.

20. To establish the circumstances as discussed above, the Prosecution primarily projected the evidence of P.Ws 3, 6 and 7 as vital since evidence of other witnesses neither relates to the factum of identity of the accused persons nor it indicates any other circumstance except for the purpose of identification of dead body of deceased Krushna Chandra which is not a disputant question. As far as evidence of P.W.3 is concerned while he stated to have seen the four Appellants in possession of a white colour jeep which the prosecution claimed to have hired by the Appellants from the trekker stand as driven by deceased who was murdered, PWs. 6 and 7 stated to have last seen the three Appellants viz; deceased Appellant Jatindra @ Bui Patra, the present Appellant Kuni Das @ Patra and another in the company of the deceased. Hence it is worth to discuss the evidence of those three.

21. P.W.3 in his evidence on oath stated that he knows the deceased Appellant Jatindra @ Bui Patra and his wife the Appellant Kuni Das@ Patra who happened to be the Son and daughter-in-law of a nurse-midwife working in Fhuljhar dispensary. According to the witness he had seen them while they visited the house of the nurse at Fhuljhar. He further stated that after about a week of the Raja Festival of 2003 accused Jatindra and accused Kuni had come to his house and asked for Handia (country liquor). He offered them Handia. Along with them two unidentified persons had accompanied them. He offered them Handia (country liquor) too and identified them present in the court. The witness also stated that they had come in a white colour jeep in the evening hour.

In course of his cross examination he stated that they had come to his house at 4 P.M on that day. The witness also stated that he identified the accused persons in the Joda police Hazat where all the four accused persons were present. Despite a query made to the witness on further examination the witness reiterated his earlier statement that he identified them in the police station and then came to the sub-jail for identification.

22. P.W. 6 in his deposition on oath stated that he knows accused Jatindra Patra (deceased Appellant), a black complexion man and identified him as standing in middle of three male persons in the dock. He also stated to have known the lady accused (Appellant Kuni Das @ Patra) standing in the dock. The witness further stated that he is the owner cum driver of the commander Jeep bearing registration number OR-O2-B-7075 and keeps his vehicle usually in the Taxi-cum- trekker stand at Gandhi Chowk, Keonjhar town. According P.W.6 on 22.06.2003 while he was in the stand with his vehicle at about 4 p.m the said black complexion man and the lady went to him and asked him for a trip to Dubuna mines on hire. The witnesses saw another person with them standing at a little distance but he did not find him in the dock. As he expressed his unwillingness to go on hire for the trip to Dubuna they went to one Prabir Rout, the owner-cum-driver of commander Jeep parked in the stand. But as he demanded Rs.800/- they contacted Krushna Chandra Mohanta who arrived at the stand few minutes after. The aforesaid two persons contacted him and he agreed for a trip to Dubuna mines at Rs.600/-. The witness stated the registration number of the Jeep belonged to Krushna Chandra to be ORJ -5823. He further stated that Krushna Chandra asked him the shortest route to proceed to Dubuna mines to which the witness advised to proceed via Palaspanga being the shortest route but the black complexion man told to proceed via Fhuljhar as some persons were waiting to accompany them and the lady wanted to see her ailing mother staying at Fhuljhar. The witness gave the description of the man who had accompanied the black complexion man and lady to be of aged 20-22 years who was standing little away. He also stated that Krushna Chandra proceeded with the three persons. On 25.06.2003 police came to the stand and enquired from the drivers and owner present in the stand if any commander jeep was hired for a trip to Dubuna to which he disclosed that Krushna Chandra was on the trip to Dubuna on 22.06.2003 and then the Police asked him to accompany for identification of a dead body. He along with Prabir and some others from the stand proceeded and identified the dead body to be that of Krushna Chandra. About four to five months thereafter he went to sub- jail for identification of the accused.

In course of his cross examination on being confronted, the witness gave a vivid narration of the manner in which the T.I parade was conducted in respect to the identity of the accused persons and nothing could be elicited by the defence to shake his testimony either to the procedure adopted in the parade or to the identification.

23. P.W. 7 stated in his evidence that he knew the accused Kapila Patra and Dukhabandhu Patra as they belong to his village. Village Kumudi situates at a distance of 5 kms from his village. On 22.06.2003 at 5 pm while he was going to a nearby water channel to answer the call of nature saw a white commander jeep was standing on the road on the other side of the water channel. He also went near the jeep and saw two persons in the jeep. Out of those two one was the driver whom he knew prior to that day as he had come across him while he was plying the same jeep in the Tea garden prior to the occurrence. The other person whom he saw on that day was not present in the dock. Four days thereafter the police went to his house and examined him. Having found the witness not supported the case of the Prosecution, leading question was asked to the witness.

24. P.W.5 the driver of the Tata Sumo bearing OR-09-8062 in his evidence stated that the deceased Krushna Chandra Mohanta is his elder brother and he owned the vehicle and driving the said vehicle and also putting it to hire. According to him the vehicle usually remains at Taxi stand i.e. Keonjhar Town near Gurudi chhak from where he collects the passenger. On 25.06.2003 Police arrived in his house in the morning hour and enquired about Krushna Chandra Mohanta and informed that the dead body was lying at Patuapodar. He along with his brother and others accompanied the Police and reached at the spot where the dead body of Krushna Chandra Mohanta was lying. He stated that the Police seized the Jeep ORJ-5823 and the R.C. book of the Jeep and took him zimma thereof.

25. In her evidence P.W. 12 the learned Magistrate who conducted the TI parade stated that the witnesses Somnath Deo (P.W.6) identified suspects Kuni Das @ Patra and Jatindra @ Bui Patra telling that they had come to hire the vehicle, witness Pradip (not examined in the case) identified suspects Kuni and Jatindra telling that they had been to him for hiring the vehicle. Witness Giridhari Naik (P.W.3) identified of suspects telling that they had come to his house and took liquor in the night. Witness Smt. Kanak Mohanta wife of P.W.3 but not examined in the case identified the suspects telling that she had gone to her house to take liquor. One Md. Sofia (not examined in the case) identified Dukhabandhu telling that he had gone to his garage for repairing of Jeep and suspects Kuni Patra was sitting in the Jeep.

26. From the evidence of P.W.3 though it emerges that he identified the four Appellants who had come to his house for handia (local liquor) in a white colour Jeep, absence of corroboration to the registration number of the Jeep with that of the deceased cannot be presumed that the same was the one belonged to the deceased. Further, this witness in his evidence on oath did not whisper to have participated in the T.I parade. The feeble attempt made by the Prosecution did not help it since the witness reiterated the fact that before his identification in the sub-jail he got the accused persons identified in the Police Station. Furthermore, the witness stated to have known to the deceased Appellant Jatindra and his wife the present Appellant Kuni Patra as they happened to be the Son and daughter-in-law of a nurse-midwife working in Fhuljhar dispensary. According to the witness he had seen them while they visited the house of the nurse at Fhuljar. This part of evidence assures the versions of P.W.6 when he stated that the Appellant Kuni Patra intended to go to Dubuna through Fuljhar as she wanted to see her mother who was sick and as such there is no falsity in the version of the Appellants to draw an inference that the Appellants with a view to execute their plan intended to proceed to Dubuna mines through Fuljhar under a false pretext of visiting her mother. Nothing adverse could, therefore, be read from this part of evidence of P.W.3 vis-à-vis the intention of the Appellants in hiring the Jeep. Hence, the mere statement of the witness that he saw them in a white colour Jeep itself is not incriminating evidence consistent to form the chain of circumstance to implicate the Appellants. Resultantly, the evidence of this witness cannot be said to be cogent to support the prosecution case for any purpose whatsoever.

27. The evidence of P.W. 6 though found not shacked but his evidence in isolation without further corroboration to complete the chain of circumstance would no way help the prosecution as the same cannot be taken to conclude that the Appellants and none else was there in the company of the deceased from the time the deceased was seen with the Appellants and the proximate time of death and detection of dead body as the gap is too long to rule out this possibility.

28. As far as the evidence of P.W.7 is concerned having seen this witness did not support the prosecution though the witness was confronted with leading question nothing could be elicited adverse to defence. Rather, it vouch safe that he saw two persons in the Jeep and one was the driver while other one was not known to him. He was also not the one amongst the accused persons in the dock leading thereby to the fact that the Driver was not with the Appellants but with another. Further, by the time the witness disclosed to have come across the deceased found not consistent to the time mentioned by the P.W.3 or the P.W.6. So the evidence of the three witnesses neither discloses a circumstance that forms the chain to deduce the Appellants who hired the Jeep could be only the persons who remained in the company of the deceased till his death.

29. The third circumstance is the confessional statement and leading to discovery of the Jeep and stone used in the crime. The evidence on this score is equally inadequate in the sense that the Prosecution did not either endeavour to examine the independent witnesses before whom the accused/ appellants volunteered their statement disclosing the place of concealment of the Jeep so also the weapon of offence i.e. the Stone and gave recovery of the same pursuant thereto found not proved by evidence of the official witnesses as contemporaneous to the statement. No explanation is also forth coming as to what prevented the prosecution to withdraw the examination of independent witnesses. It is true that the evidence of the independent witness is only a caution and not mandatorily to be shown in evidence but where the presence of such witnesses is on record and the prosecution relies upon it and evidence of the witness receives importance, absence of examination of such witnesses raises a strong eye brow to the prosecution case more so when the entire prosecution case hinges on circumstantial evidence. Another aspect which cannot be blinked aside while analyzing evidence that assumes importance is the seizure of blood stain stone (M.O. I) purported to have been used as weapon of offence according to the prosecution version. In his evidence P.W. 13(the I.O) stated to have seized the stone at the instance of the Appellants and was sent for test. However nothing could be established that upon seizure of the stone the same was kept in safe custody and was labeled so as to ensure the seized stone was sent for the examination. Of course there is no evidence that the stone so seized was stained with blood belong to the deceased. Consequently, the circumstance showing seizure of blood stained stone is of no consequence.

30. Hon’ble Supreme Court in the matter of Shankar Vs. the State of Maharastra in Criminal Appeal No.955 of 2011 held as follows:

“7. ……. It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence.

7. In Brijlal Prasad Sinha v. State of Bihar, this Court held thus:

“In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and this Court in (1998) SCC (Cri) 1382 [LQ/SC/1998/622] held by catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are capable of any explanation on any reasonable hypothesis save the guilt of the accused.”

8. In the decision of Prakash v. State of Rajasthan, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra :- of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] [LQ/SC/1973/251] where the following observations were made :

19. …… “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ 3 (2013) 4 SCC 668 4(1984) 4 SCC 1167 and ‘must be’ is long and divides vague conjectures from sure conclusion.”

(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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence”.

9. After noting the above five golden principles, it was held in Prakash’s case (supra), that they would constitute the Panchsheel of the proof of a case based on circumstantial evidence and conviction could be sustained on the basis of last seen, motive and recovery of incriminating articles in pursuance of the information given by the accused if those five golden principles of the proof of a case based on circumstantial evidence are satisfied.

10. Virtually, the law laid down relating circumstantial evidence in those decisions is unfailingly followed by this Court while dealing with the cases where conviction is rested on circumstantial evidence."

31. In the instant case, neither the witnesses relied upon by the Prosecution to establish the chain of circumstances are consistent to each other nor the circumstances so identified are proved coherently and cogently to deduce the same to point the Appellants to be the perpetrators in any manner much less to say by a proof beyond reasonable doubt. The evidence is absolutely silent that the Appellants had an intention of committing dacoity or that the circumstances emerge from the case suggest an element of dacoity. The evidence is also silent on the point of motive which is a vital factor need consideration in a case where the result of the case based on circumstantial evidence only. In essence, the entire prosecution evidence being one of surmises and conjecture in brining the Appellants to book in complete absence of a proof as to motive deters this Court to hold that the learned trial court has analysed the evidence in proper perspective. Consequently, we are of the opinion that the impugned judgment cannot be allowed to sustain.

32. In the result, the JCRLA is allowed. The impugned Judgment convicting the Appellants and order of sentence passed therein is hereby set side. Both the Appellants are acquitted from the charge. They being on bail are discharged from the bail bond.