SURAJDEO MAHTO AND ANR. versus THE STATE OF BIHAR on 4 August 2021

SURAJDEO MAHTO AND ANR.

v.

THE STATE OF BIHAR

(Criminal Appeal No. 1677 of 2011)

AUGUST 04, 2021

[N. V. RAMANA, CJI, SURYA KANT ANDANIRUDDHA BOSE, JJ.]

Evidence: Circumstantial evidence – Conviction on basis of– Permissibility of – On facts, prosecution case that appellant no. 1lured the victim out of his house, remained with him all along, onthe fourth day joined by appellant no. 2 thereafter, both conspiredand murdered the victim – Conviction of appellant no. 1 and 2, u/s.302 r/w 34 and 120B and sentenced accordingly – Appellant no. 1also convicted u/s. 364 – Upheld by the High Court – On appeal,held: Upon considering the prosecution evidence in entirety, noreason to disbelieve the prosecution version of last seen theoryagainst the accused – Medical evidence fully corroborates theprosecution story of murder of the victim having being taken placeon the fourth day – Motive attributed to the appellants that theymurdered the victim because he was allegedly having an illicit affairwith the sister of appellant No.1, sufficiently proved by theprosecution – False information given by appellant No.1 and hispost occurrence conduct of absconding and surrendering beforethe court only after coercive measures were taken, is relevant toprove an additional link in the chain of incriminating circumstances– As regard, appellant No.2, only substantial evidence against himis that he too was seen in the company of the victim and appellantNo.1 on the fourth day – Mere suspicion cannot be accepted asimpeccable evidence to prove his guilt beyond any doubt – Further,no allegation against appellant No.2 of being evasive or abscondingpost occurrence levelled – Thus, due to missing links in theprosecution case as regards 2nd Appellant, guilt of 2nd Appellantnot proved beyond the pale of doubt – Thus, 2nd Appellant entitledto the benefit of doubt and is acquitted of the charges, while theconviction and sentence of appellant No.1 is upheld – Penal Code,1860 – u/s. 302 r/w 34 and ss.120B and 364.

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912SUPREME COURT REPORTS

[2021] 8 S.C.R.

APrinciple of ‘Last seen theory’ - Explained.Motive – Proof of – Important piece of corroborative evidence– Explained.

Juvenile Justice (Care and Protection of Children) Act, 2000:s. 7A – Juvenility – Plea of – Held: Initial onus is on the accused toBproduce some cogent evidence to prima facie establish the juvenilityon the date of commission of the offence – On facts, 1st Appellantraised plea of juvenility for the first time before this Court –Documents relied upon by 1st Appellant-School Leaving Certificateand Admit Card issued by the School Examination Board do notCinspire any confidence and is not possible to verify the veracity ofthe two documents at this highly belated stage – Plea of juvenilityraised by the 1st Appellant is rejected.

Partly allowing the appeal, the Court

HELD: 1. Although the powers vested in this Court underDArticle 136 of the Constitution are wide, this Court in a criminalappeal by special leave will ordinarily loath to enter into a freshre-appraisement of evidence and question the credibility ofwitnesses when there is a concurrent finding of fact, save forcertain exceptional circumstances. While it is difficult to lay downEa rule of universal application, it has been affirmed time and againthat except where the assessment of the High Court is vitiatedby an error of law or procedure, or is based on misreading ofevidence, or is inconsistent with the evidence and thus has ledto a perverse finding, this Court would refrain from interferingwith the findings of the Courts below. [Para 25][928-C-E]F

2.1 The case of the prosecution in the instant case heavilybanks upon the principle of ‘Last seen theory’. The last seentheory is applied where the time interval between the point ofwhen the accused and the deceased were last seen together,and when the victim is found dead, is so small that the possibilityGof any other person other than the accused being the perpetratorof crime becomes impossible. The fact of last seen should not beweighed in isolation or be segregated from the other evidenceled by the prosecution. The last seen theory should rather beapplied taking into account the case of the prosecution in its H

entirety. Hence, the Courts have to not only consider the factumof last seen, but also have to keep in mind the circumstancesthat preceded and followed from the point of the deceased beingso last seen in the presence of the accused. [Para 29, 30][929-F-G; 930-E-F]

2.2 The prosecution in the instant case undoubtedlyestablished that the deceased was last seen alive in the companyof the appellants, and has also adduced evidence about the eventsleading up to and following the point of last seen. The depositionsof PW-2, PW-3A, PW-16 and PW-17 do suggest that prior to thepoint of last seen, the deceased was constantly in the company ofAppellant No.1. PW-3 and PW-4 are the persons who lastly sawthe deceased alive on 09.04.1987, and they categorically deposedthat they had seen the deceased along with the appellants. Throughthe depositions of PW-1, PW-5, & PWs 10 to 14 the prosecutionhas attempted to shed light on the events that occurred post thepoint of last seen. [Para 31][930-F-H]

2.3 The submission that most of the prosecution witnesseswere either related or close to the complainant party and theirtestimony could not be relied upon in the absence of corroborationby any independent witnesses, is without much substance. It istrite in law that the job of the prosecution is to put forth the bestevidence that is collected during the investigation. Although it isideal that the prosecution case is further substantiated throughindependent witnesses, but it would be unreasonable to expectthe presence of third-parties in every case. The prosecution’scase cannot be discarded merely on a bald plea of all witnessesbeing related to the complainant party. Hence, in order to drawan adverse inference against the non-examination of independentwitnesses, it must also be shown that though the best evidencewas available, but it was withheld by the prosecution. That apart,PW-3 saw A and the appellants on the outskirts of the village,whereas, PW-4 saw A and the appellants inside appellant No.2’shouse. Neither of these witnesses claim to have seen thedeceased and the appellants at a public place. Thus, it would notbe illogical to infer that there was no independent witness to thisoccurrence. Further, the deposition of both PW-3 and PW-4 seems A

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Anatural and nothing has been adduced in their cross-examinationto disbelieve their testimonies. [Para 32, 33][931-A-E]

2.4 The appellants submitted that even if the deposition ofPW-3 was considered true, he had seen A in the company of theappellants on 09.04.1987, which was two days before the discoveryBof the dead body. It was, thus, submitted that the interveningtime period between the two events could not rule out thepossibility of intervention by a third party and as such there wasn’ta continuous chain of circumstances. While this submission seemsattractive at the first instance, but, when considered in the lightof testimonies made by the independent witnesses PW-6 and PW-C8, it stands completely belied. The prosecution case is that boththe appellants committed the murder on the night of 09.04.1987.PW-8, who discovered the body of A on 11.04.1987, deposed thathe had heard rumors about the dead body the previous nightitself, however, on account of it being dark and a forested area,

Dhe was only able to proceed to the spot the next day. Given thatthe body was lying on the spot at least since 10.04.1987, the instantcrime could have been committed on or before 10.04.1987. Themedical evidence in the instant case further braces theprosecution story. PW-6, the Doctor, examined the body of thedeceased on 12.04.1987. In his opinion, the time elapsed sinceEthe death of A was 36 to 72 hours. Thus, the medical evidencefully corroborates the prosecution story of the murder havingbeing taken place on 09.04.1987. The Courts below held that themurder of the deceased indeed took place on 09.04.1987. Thereis no reason to take a contrary view. [Para 34][931-E-H; 932-A-FB]

2.5 Appellant No.1 has been unable to offer any explanationas to circumstances in which he departed from the company ofthe deceased. [Para 35][932-D]

2.6 As regard to the reliability of the depositions of PW-10Gto PW-14, the primary submission is that except PW-12, none ofthe other witnesses were able to identify the present appellants;and that the testimony of PW- 12 seems doubtful as it was highlyimprobable that the witness was able to see appellant No.2 throughthe light of a lamp. Assuming that the depositions of PW-10, H

PW-11, PW-13 and PW-14 do not add much value to the case inhand, the question whether PW-12 could or could not identifyappellant No.2 is purely a factual issue and courts below havetaken a concurrent view in relation thereto. PW-12 was able toidentify appellant No.2 because of the chicken-pox marks on hisface. Even in the initial statement recorded by the police, PW-12had maintained that one of the two persons who he had interactedwith on the night of 09.04.1987, had chicken-pox scars on hisface. [Para 36][932-D-G]

2.7 Upon considering the prosecution evidence in itsentirety and having meditated on the grounds raised by theappellants to every possible extent, there is no reason todisbelieve the prosecution version of last seen theory againstthe appellants. [Para 37][932-G-H]

3.1 If motive in a case is attributed to an accused(s) andthereafter proved, the probability of the crime being committedby the said accused is intensified. It is for this reason, that incases of overwhelming circumstantial evidence, proof of motivewill be an important piece of corroborative evidence, as well as,form a vital link in the chain of evidence. [Para 38][933-A-B]

3.2 The motive attributed to the appellants in this case isthat they murdered the deceased because he was allegedly havingan illicit affair with ‘R’, sister of appellant No.1. While none of thewitnesses have specifically deposed about the deceased havingan affair with R, the motive, as alleged, does find somecorroboration in the deposition of PW- 1, PW-3A, and PW-16. Itis revealed from the testimony of PW-3A, that initially there werecordial and friendly relations between the 1[st] Appellant anddeceased’s family but the same became sour after the month ofFebruary. PW-1 who is a fellow villager corroborated thetestimonies of PW-3A. PW-16 categorically deposed that aPanchayat had been called in regards to the illicit relationship ofthe deceased with ‘R’. [Para 39][933-B-D]

4.1 The fact of the deceased having an affair with the sisterof appellant No.1 has of course not been established beyond doubtbut the factum of calling Panchayat so that the issue does not AB

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Aspiral out of control does suggest that appellant No.1 carried amotive to eliminate the deceased. The events had occurred inthe year 1987, when the rural Indian society was irrepressiblyconservative, and even the slightest rumor of extra- marital affairscould flare-up tensions. Considering these ground realities, thetrial court correctly recorded that the motive as alleged had beenBsufficiently proved by the prosecution. The counsel for appellantshas not mounted any substantial challenge on the point of motive,and as such, there is no reason to interfere with the indictment ofappellant No.1 on the point of motive. [Para 40][933-D-G]

4.2 Both the witnesses PW-1 and PW-5 individually metCappellant No.1 on 10.04.1987 and both of them enquired aboutthe whereabouts of A. Appellant No.1 lied to PW-1 and told himthat after viewing the Cinema, A alone had proceeded to Amwawhereas appellant No.2 had gone to visit Dopta. Even morecuriously, appellant No.1 informed PW-5 that A had left for Delhi.DIt is clear that the false information provided by the first appellantwas an attempt to hide his guilt by de-railing the search effortsthat were being conducted. Appellant No.1 thereafter abscondedand surrendered before the court only after coercive measureswere taken. The false information given by appellant No.1 andhis post occurrence conduct is relevant to prove an additionalElink in the chain of incriminating circumstances. [Para 41][933-G-H; 934-A-C]

4.3 There is, however, a qualitative difference in theevidence led by the prosecution to prove charges againstAppellant No.2. The prosecution’s case is that it was the 1stFAppellant who allured the deceased and persuaded him toaccompany the said appellant to watch cinema. It is neither theircase nor have the prosecution witnesses deposed that appellantNo. 2 was involved in the persuasive abduction of the deceasedfrom his house on 05.04.1987. This has to be seen in the contextGof motive behind the offence. It is proved on record that the 1stAppellant had an axe to grind against the deceased who wasallegedly having illicit relationship with his sister. There is nomotive alleged or proved which would have swayed appellant No.2 to commit murder of the deceased. Still further, prosecution H

has led no evidence that there was any meeting of mind betweenthe 1st and the 2nd Appellant on or before 08.04.1987, or thatthey hatched any conspiracy together to commit the murder of A.There is also no evidence on record to suggest that appellantNo.1 disclosed his intention to commit murder of deceased tothe 2[nd] appellant. [Para 42][934-C-F]

4.4 It is true that the prosecution has led evidencecomprising the statements of PW-3 and PW-4 who had lastly seenthe deceased alive on 09.04.1987 in the company of the 1[st] andthe 2[nd] Appellants. However, until and unless the last seen theoryis substantiated by other circumstantial evidence to constitutean unbreakable chain of events, the conviction cannot rest solelyon the basis that the 2[nd] Appellant was also present along withappellant No.1 in the company of the deceased when they wereseen together on 09.04.1987. [Para 43][934-F-G]

4.5 It is pertinent to mention that some incriminatingmaterial consisting of one pair of slippers, one handkerchief, aknife, jerrycan and two lungis were found and seized at the placeof occurrence. While PW-16, namely, father of the deceased hasidentified one of the seized lungis belonging to appellant No.1,none of the recovered articles have been attributed to the 2[nd]Appellant. The only substantial evidence against the 2[nd] Appellantis that he too was in the company of the deceased and appellantNo.1 on 09.04.1987, i.e., they were seen together lastly. Even ifit is presumed that the deposition of PW-12 identifying appellantNo.2 on the night of 09.04.1987 to be true, such evidence, maycreate a strong suspicion in respect of involvement of the 2[nd]Appellant in the murder of the deceased, but then, mere suspicioncannot be accepted as impeccable evidence to prove his guiltbeyond any doubt. [Para 44][934-H; 935-A-C]

4.6 There is post occurrence circumstantial evidence ledagainst appellant No.1, namely, that he did not disclose thewhereabouts of the deceased and then surreptitiously disappearedfrom the scene till he surrendered in Court. There is no suchallegation of being evasive or absconding post occurrence levelledagainst appellant No.2. There are, thus, missing links in the A

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Aprosecution case so far as the 2nd Appellant is concerned.Consequently, and for the reasons, the case of Appellant No.2 isdistinguishable from that of Appellant No.1 and the prosecutionhas not been able to prove the guilt of 2nd Appellant beyond thepale of doubt. The 2nd Appellant is, thus, entitled to the benefitof doubt. [Para 45][935-C-E]

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5.1 Section 7-A of Juvenile Justice (Care and Protection ofChildren) Act, 2000 sets out the procedure to be followed by acourt to determine the claim of juvenility. Its proviso enables toraise the claim of juvenility before “any court” and at “any stage”,even after the final disposal of the case. However, in order toCtake advantage of the provision, there lies an initial onus on theaccused to produce some cogent evidence to prima facie establishthe juvenility on the date of commission of the offence. [Para46][935-E-F]

5.2 The 1[st] Appellant raised plea of juvenility for the firstDtime before this Court. He has placed a School Leaving Certificatealong with an Admit Card issued by the Bihar School ExaminationBoard, wherein, appellant No.1’s date of birth is claimed to be01.03.1970. It has been asserted that the 1[st] Appellant was 17years old at the time of occurrence. When the documents reliedEupon by 1[st] Appellant are analysed in the backdrop of these settledprinciples, the same do not inspire any confidence. The name ofappellant No.1 does not appear on the documents, instead thesebelong to one ‘SP’. It is nearly impossible to verify the veracity ofthe two documents relied upon by appellant No.1 at this highlybelated stage. Further, the record of the trial court does suggestFthat the name of the 1[st] Appellant is ‘SM’ and not ‘SP’. In theabsence of any cogent material indicating that the subject-documents pertain to 1[st] Appellant only, no case to hold any fact-finding enquiry is made out. Consequently, reliance on thedocuments in question is not accepted and the plea of juvenilityGraised by the 1[st] Appellant is rejected. [Para 48][935-G-H; 936-E-G]

6. While the conviction and sentence of Appellant No.1 isupheld, the 2[nd] Appellant is acquitted of the charges. [Para 49][936-G-H]

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Abuzar Hossain alias Gulam Hossain v. State of WestBengal (2012) 10 SCC 489 : [2012] 9 SCR 244;Inspector of Police, Tamil Nadu v. John David (2011) 5SCC 509 : [2011] 7 SCR 354; State of Rajasthan v.Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR501; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999]3 Suppl. SCR 314; Badruddin Rukonddim Karpude v.State of Maharashtra (1981) Supp SCC 1; RavinderSingh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006]2 Suppl. SCR 615; Sharad Birdhichand Sarda v. Stateof Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;Mohd. Younus Ali Tarafdar v. State of W.B. (2020) 3SCC 747; R. Damodaran v. State Represented by theInspector of Police (2021) SCC OnLine SC 134;Satpal v. State of Haryana (2018) 6 SCC 610 – referredto.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1677 of 2021.

From the Judgment and Order dated 20.05.2010 of the High Courtof Judicature at Patna in Criminal Appeal No.273 of 1988.

Ms. Prerna Singh, T. Mahipal, Advs. for the Appellants.

Abhinav Mukerji, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs.for the Respondent.

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920SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by SURYA KANT, J.

1. Surajdeo Mahto (Appellant No.1) and Prakash Mahto(Appellant No.2) have laid challenge to the judgment dated 20.05.2010passed by the High Court at Patna, whereby, the order of their convictionBand sentence dated 13.05.1988 passed by the 3[rd] Additional SessionsJudge, Nawadah was confirmed. Both the Appellants have been convictedfor offences under Section 302 read with section 34 of the Indian PenalCode [in short, “IPC”] read with Section 120-B of the IPC and havebeen sentenced to life imprisonment for each of the offences. Additionally,CAppellant No.1 has also been convicted under section 364 IPC and hasbeen sentenced to five years of imprisonment for the said offence, witha direction that the sentences will run concurrently.

FACTS

2. The prosecution case, in brief, is that on 05.04.1987, ArunD(deceased) and Sunder Prasad (PW-17) were putting up in Arun’s houseat Manawan village when Surajdeo Mahto (Appellant No.1) and RajKumar approached Arun and asked him to accompany them to the Cinemaat Nawada village. While Arun was reluctant initially to accompany them,he eventually agreed when Appellant No.1 volunteered to bear theEexpenses. Upon Arun’s request, Sunder Prasad (PW-17) also agreed togo along with them to the Cinema. After the show, Raj Kumar andSunder Prasad returned to Manawan village on 06.04.1987 whereasArun and Surajdeo Mahto did not come back with them. As Arun did notreturn, Ramji Mahto (father of Arun; PW-16) enquired from Raj Kumarwho told him that Arun and Surajdeo Mahto had gone to Arun’s in-laws’Fplace 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 andGArun had visited the latter’s in-laws’ place on 06.04.1987 and stayedthere till 08.04.1987. It was further discovered that the duo had thenproceeded to Dopta village wherein Appellant No.1’s sister was married.Thereafter, Appellant No.1 returned to his village Manawan on10.04.1987, but whereabouts of Arun were still unknown. When asked,Appellant No.1 did not provide any credible information about Arun,H

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 hetoo was unable to track down Arun. Since Arun was still untraceable,Ramji Mahto, through his nephew Ishwari Mahto (PW-3A), sentinformation to the Police, which culminated in the lodging of Sanha EntryNo. 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 Sagar Ahar(Reservoir) near Kakolat. On 11.04.1987, he proceeded to the spot anddiscovered the dead body. He also found an iron dagger and two lungisnear the body. The statement of Ram Brikch Paswan was subsequentlyrecorded by the police and treated as a Fardbeyan. Thereafter,Ramchandra Singh (PW-18), Officer-In-charge, Govindpur Police Stationreached the spot and prepared the inquest report in the presence ofwitnesses. Upon inspecting the place of occurrence, additional materialsuch as one pair of slippers, one handkerchief, a knife and a jerrycanmade of plastic were also discovered and seized. A seizure list wasprepared in the presence of witnesses. The dead body was then sent forpost mortem examination.

5. On 12.04.1987, Ramji Mahto (PW-16) received informationthat a dead body of a male person was brought in by the GovindpurPolice Station. Subsequently, Ramji Mahto along with some co-villagerswent to the Police Station and identified that the dead body was that ofhis son Arun.

6. The investigation then proceeded in light of the above-statedfacts, and upon collection of substantial evidence, a charge sheet wasfiled against Surajdeo Mahto (Appellant No.1), Prakash Mahto (AppellantNo.2), Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The casewas committed to the court of 3[rd] Additional Sessions Judge, Nawadahand charges were framed against the accused persons for offencesunder sections 364, 120-B and 302 read with section 34 of the IPC. Theaccused persons abjured their guilt and claimed trial.

7. In the eventual trial, a total of 18 witnesses were examined bythe prosecution. No documentary evidence was relied upon by theprosecution. The case of the prosecution rested heavily uponcircumstantial evidence, including deposition of Ramji Mahto (PW-16),father of the deceased. PW-16 in his deposition alleged that Surajdeo AB

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AMahto (Appellant No.1) had lured the deceased away on the pretext ofwatching cinema on 05.04.1987. PW-16 deposed that “Arun told himthat he was not ready to go. Surajdeo told him that he will bear thecost. Thereafter on being pressurized by Surajdeo, Arun went outwith Surajdeo, Raj Kumar and Sunder”. PW-16 also deposed that itwas at his instance that Ishwari Mahto (PW-3A) went and informed theBpolice on 11.04.1987 about Arun’s disappearance, and on 12.04.1987 hevisited Govindpur Police Station and identified the dead body of Arun.PW-16 further identified one of the seized lungis belonging to SuarjdeoMahto (Appellant No.1). The cross-examination of PW-16 also broughtto light the motive attributed to the accused persons: the relations betweenCthe parties were strained after a Panchayati (village meeting) had beenheld in connection with the illicit relationship of the deceased with thesister of Appellant No.1.

8. Likewise, Ishwari Mahto (PW-3A) deposed that he had lastseen Arun in the company of Appellant No.1, Raj Kumar and Sundar onD05.04.1987, and he was informed by Appellant No.1 that they weregoing to see the cinema. Ishwari Mahto further shed light on the feudbetween the parties and he stated that “Previously the families ofSurajdeo 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 Appellant No.1Epressurized Arun to accompany him and Raj Kumar to watch Cinema.PW-17 also deposed to accompanying Appellant No.1, Arun and RajKumar to the Cinema and further revealed that after the Cinema, insteadof returning back to their village, Appellant No.1 forced the group to visitKumbhrawan village. PW-17 stated that upon Appellant No.1’sFinsistence, they spent the night in Prakash Mahto’s house (Brother-inlaw of Surajdeo; Appellant No.1). The next day, i.e., 06.04.1987, whenPW-17 insisted on returning back to the village, Surajdeo Mahto(Appellant No.1) informed him that he and Arun will be visiting AmwaVillage.G9. Dilkeshwar Mahto (PW-2), Arun’s father-in-law, deposed thatArun and Appellant No.1 visited his house in Amwa Village on the eveningof 06.04.1987 and stayed there till 08.04.1987. He further deposed that“On Wednesday, I asked Arun and Surajdeo insistently to stayfurther, but Surajdeo did not agree and took Arun with him sayingthat they had to go Dopta.”H

10. Bipat Mahto (PW-4), deposed that on Thursday, i.e.,09.04.1987, he received information from his grandson that Arun was inKumbhrawan village and was staying at the house of Prakash Mahto(Appellant No.2). Since PW-4 was Arun’s uncle and also resided in thesame village, he and his wife went to invite Arun to their place. Hestated, “We met Arun, Prakash and Surajdeo at that place. I invitedArun to come to my place and take meal there. Prakash told methat he had arranged food for them, hence they would go aftertaking meal at his place.” He further stated that despite AppellantNo.2’s assurance, Arun did not come to their place. Later, when PW-4’swife went again to call Arun, she was informed by Appellant No.2’swife that Arun had gone back. Sheodani Mahto (PW-3), who is the sonof PW-4 and the cousin of the deceased, also deposed about the presenceof Arun in Kumbhrawan village on 09.04.1987. According to him, whenhe was returning back to the village, he saw Arun on the outskirts of thevillage in the company of Surajdeo, Prakash, Raj Kumar and Shankar,and upon asking them where they were going, Surajdeo informed PW-3that 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 Prasad(PW-13) and Mathura Saw (PW-14). PW-10 and PW-11 deposed thaton the night of 09.04.1987, they had heard a motor vehicle (tractor)going in the direction of Kakolat. However, PW-10 and PW-11 had notseen the passengers in the vehicle. PW-12, PW-13 and PW-14 were allpresent near PW-14’s shop in the late hours of 09.04.1987 and theydeposed about seeing two persons returning from Kakolat. PW-12 wentfurther and stated that he was able to identify the persons who hadstopped 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 tothe shop that night. PW-12 in his cross-examination admitted that thepolice had not asked him to take part in a Test Identification Parade [inshort, “T.I.P.”]. It is pertinent to mention that this set of evidence onlyfinds relevance because the dead body of Arun was discovered in RamSagar 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-1deposed that on 09.04.1987 he was requested by PW-16 to search forArun. He further stated that the next day, i.e., 10.04.1987, he went to AB

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Athe market and there he found Appellant No.1. PW-1 claims that whenhe enquired about Arun’s whereabouts from him, Surajdeo Mahto(Appellant No.1) told him that after viewing the cinema, Arun had goneto Amwa village whereas he went to Dopta village. PW-5 too has deposedthat he met Surajdeo on 10.04.1987 at Barnwal Medical Hall at Hisuawhere Appellant No.1 told him that Arun had gone to Delhi.B

13. Ram Brikch Paswan (PW-8), Chawkidar Circle No.9, wasthe one who discovered the dead body of Arun on 11.04.1987. In hiscross-examination he deposed that he had heard rumors of a dead bodyin Ram Sagar Ahar on the night of 10.04.1987 itself, however, it beingnight time and the place being a forested area, he could go there on theCfollowing day only. PW-6, is the Doctor who conducted the post mortemexamination of the dead body. Upon examining the injuries present onthe deceased’s body, PW-6 opined that the injuries were sufficient tocause death in the normal course of nature, and the time elapsed fromdeath was 36 to 72 hours.D14. The case of the accused persons, as recorded in their statementsunder section 313 of the Code of Criminal Procedure, 1973 was one ofdenial. No other evidence was led by the defence.

15. The Trial Court was conscious of the fact that in order toprove the guilt of the accused by means of circumstantial evidence, theEchain of evidence should be completed so as to exclude all the hypothesisof innocence of the accused. Upon extensively scrutinizing the depositionof witnesses, the Trial Court observed that there was a paucity ofeyewitnesses to explain circumstances in which the deceased met hisend and the evidence on record fell short of establishing the complicityFof Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The Court,however, held that the circumstantial evidence on record did suggestthat 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 on09.04.1987; and thereafter the present appellants conspired and murderedthe deceased near Kakolat. Negating the contentions raised by theGdefence, the Trial Court believed the testimony of PW-16 in toto andheld that purported motive as well as the identification of incriminatingmaterial by PW-16 further established the guilt of the appellants. Whilethe Trial Court observed that there were some inconsistencies in thecase put forth by the prosecution, but those were held to be “petty details”and minor contradictions.H

16. The Trial Court further noted that Appellant No.1 had exhibitedbehaviour that could not have been considered normal. Judicial notice ofthe false and evasive replies given by Appellant No.1 to PW-1 andPW-5 when they inquired about the whereabouts of the deceased wasalso taken. The Court held that since various links in the chain of evidencehave been satisfactorily proved, the false explanation given by AppellantNo.1 could be construed as an additional link in the chain of evidence,which would lend further support to the prosecution case. The Courtfurther observed that when enquiries were taking place, instead of helpingin the search of Arun, Appellant No.1 absconded, and he surrenderedbefore the court on 18.04.1987 only, when coercive measures wereundertaken to compel his appearance. Lastly, unconvinced by the defensetaken by the Appellant, the Trial Court opined that the plain denial of theprosecution allegations by the accused persons was nothing but an attemptto screen themselves from the “rigours of legal punishment”. TheTrial Court thus held that the circumstantial evidence in the instant casewas clinching, and consequently convicted the present appellants.

17. Discontented with their conviction, the appellants preferredan appeal before the Patna High Court. Upon a reappraisal of theevidence on record, the High Court observed that the prosecutionwitnesses were able to provide a date and stage wise testimony in orderto prove the prosecution case. The High Court further laid emphasis onthe false information provided by Appellant No.1 to PW-5. Consideringthese aspects, the High Court vide the impugned judgement dated20.05.2010 affirmed the findings of the Trial Court and upheld theconviction and sentence of the appellants.

18. The aggrieved appellants are now before this Court.

CONTENTIONS

19. We have heard Learned Counsel for the appellants atconsiderable length. The principal contention is that the entire case restedon circumstantial evidence and there was no eye-witness to the allegedincident. Learned Counsel submitted that no independent witnesses hadbeen examined by the prosecution and all the witnesses were eitherrelatives or close friends of the complainant party. The Counsel furtherpressed that the Courts below have completely erred in relying upon thetestimony of PW-10 to PW-14. As far as Appellant No.2 is concerned, itwas submitted that only evidence against him was that of Sheodani Mahto A

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A(PW-3) and Baleshwar Prasad Yadav (PW-12). The Counsel assertedthat PW-3 had seen the deceased in the company of Appellant No.2 twodays prior to the recovery of the dead body, and hence the evidence ofPW-3 did not support the prosecution case. Casting doubts on thecredibility of the evidence of PW-12, it was claimed to be highlyimprobable that PW-12 was able to see the face of Appellant No.2 onlyBthrough the light of a lantern on a pitch-dark night. Learned Counselfurther contended that the failure on the part of the investigating agencynot to send the knife recovered at the spot of occurrence for forensicexamination was fatal to the prosecution case. Hence, it was urged thatthe Courts below fell in grave error in convicting the appellants merelyCon the basis of ‘last seen theory’.

20. In all fairness, we may notice an additional plea taken byAppellant No.1, which has been raised for the first time before thisCourt. It was claimed that Appellant No.1 was a ‘juvenile’ on the dateof occurrence. In support of such claim, Learned Counsel relied on theDcopies of ‘School Leaving Certificate’ along with an ‘admit card’ issuedby the Bihar School Examination Board, according to which AppellantNo.1 was purportedly born on 01.03.1970. As the date of occurrencewas between 09.04.1987 to 11.04.1987, it is submitted that AppellantNo.1 was 17 years of age at that time and therefore, a juvenile. Tofurther buttress this claim, Learned Counsel for the appellants drew ourEattention to section 7A of the Juvenile Justice (Care and Protection ofChildren) Act, 2000 as well as the decision of this Court in AbuzarHossain alias Gulam Hossain v. State of West Bengal[1].

21. On the other hand, Learned Counsel appearing for the Stateof Bihar submitted that there has been a concurrent finding of guilt byFtwo courts on minute examination of the evidence on record which doesnot warrant any interference by this Court. Relying upon Inspector ofPolice, Tamil Nadu v. John David[2], it was urged that conviction incases of circumstantial evidence is permissible. The State Counselpassionately argued that the chain of circumstances in the present caseGis complete in every respect. He made pointed reference that First, themotive, as recorded by the Trial Court, was clearly established in thepresent case. Second, both the courts below have concurrently heldthat the deceased was last seen alive in the company of the Appellants.

1 (2012) 10 SCC 489, ¶ 39H2 (2011) 5 SCC 509, ¶ 33 to 35

He cited State of Rajasthan v. Kashi Ram[3], to urge that in situationswhen the deceased was last seen in the company of the accused, apresumption would arise that the said accused murdered the deceased.It was argued that presumption has not been dislodged by the Appellantsin the present case. Third, the guilt of the appellants can be adducedfrom their conduct as not only did they lure the deceased on the pretextof watching the cinema, but also gave false and misleading informationabout the deceased’s whereabouts. Fourth, the seizures/recoveries madeduring the investigation do establish the involvement of appellants, asone of the two lung is recovered at the place of occurrence was identifiedas that belonging to Appellant No.1. Fifth, the medical examination doesestablish that the death of the deceased was caused by unnatural meansand, Sixth, the dead body which was recovered has been identified asthat of Arun.

22. Learned State Counsel further canvassed that all the materialwitnesses, PW-1 to PW-14, 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 wassubmitted that the principles of res gestae are applicable to the facts andcircumstances of this case, and the statements made by one witness toanother are admissible in evidence. He also urged that the absence ofT.I.P. in the present case would not be fatal to the case of theprosecution[6].

23. As regard to the plea of Appellant No.1 being a juvenile raisedfor the first time before this Court, it was vehemently urged by the StateCounsel that the first appellant deliberately waited till this belated pointof time to raise the plea knowing fully well that in the event of an inquiryordered by the Court, there would be no record available to contradictthe documents put forth by him. He further pointed out certain patentdiscrepancies 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, theCounsel submitted that the purported documents have not been provedin 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 3 (2006) 12 SCC 254, ¶ 19-244 (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

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Adecision of this Court in Ravinder Singh Gorkhi v. State of U.P.[7],wherein, the plea of juvenility was rejected because, inter-alia, therewas an unexplained inordinate delay in raising the plea.

ANALYSIS

24. We find that two questions fall for our consideration in theBinstant appeal; (A) Whether the circumstantial evidence led in the instantcase is so impeachable that it establishes the guilt of the appellants beyondany reasonable doubt? (B) Whether Appellant No.1 was a juvenile onthe date of the occurrence?

25. It may be highlighted at the outset that although the powersCvested in this Court under Article 136 of the Constitution are wide, thisCourt in a criminal appeal by special leave will ordinarily loath to enterinto a fresh re-appraisement of evidence and question the credibility ofwitnesses when there is a concurrent finding of fact, save for certainexceptional circumstances. While it is difficult to lay down a rule ofDuniversal application, it has been affirmed time and again that exceptwhere the assessment of the High Court is vitiated by an error of law orprocedure, or is based on misreading of evidence, or is inconsistent withthe evidence and thus has led to a perverse finding, this Court will refrainfrom interfering with the findings of the Courts below.

E26. Regardless of such self-imposed restrain, and in the interestof justice, we have given thoughtful consideration to the rival submissionsand have endeavored to peruse and discussed the entire evidence onrecord to ascertain whether or not the concurrent finding of convictionsuffers from any perversity and/or whether the conviction of theappellants is legally and factually sustainable.FA. Whether the guilt of the accused has been proved beyondreasonable doubt?

27. This Court, in its much-celebrated judgment of SharadBirdhichand Sarda v. State of Maharashtra[8], has elaboratelyconsidered the standard necessary for recording a conviction on theGbasis of circumstantial evidence and has further held:

7 (2006) 5 SCC 584, ¶ 39 to 41H8 (1984) 4 SCC 116, ¶ 153

“153. xxx xxxxxx

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

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(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty,

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

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

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

These five cardinal principles have been reiterated on numerousoccasions, including in the recent decisions in Mohd. Younus AliTarafdar v. State of W.B[9]& R. Damodaran v. State Represented bythe Inspector of Police[10]. Keeping these conditions in mind, we shallnow examine the case at hand.

28. It appears to us that the following circumstances need to beconsidered to arrive at the guilt of the appellants: (i) Last seen theory;(ii) Motive & (iii) false information provided and subsequent conduct ofthe appellants.

(i) Last seen theory

29. The case of the prosecution in the present case heavily banksupon the principle of ‘Last seen theory’. Briefly put, the last seen theoryis applied where the time interval between the point of when the accusedand the deceased were last seen together, and when the victim is founddead, is so small that the possibility of any other person other than theaccused being the perpetrator of crime becomes impossible. Elaboratingon the principle of “last seen alive”, a 3-judge bench of this Court in thecase of Satpal v. State of Haryana[11] has, however, cautioned that unless 9 (2020) 3 SCC 747, ¶ 10

10 2021 SCC OnLine SC 134, ¶ 1311 (2018) 6 SCC 610, ¶ 6

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Athe fact of last seen is corroborated by some other evidence, the factthat the deceased was last seen in the vicinity of the accused, would byitself, only be a weak kind of evidence. The Court further held:

“……………..Succinctly stated, it may be a weak kind of evidenceby itself to found conviction upon the same singularly. But when itBis coupled with other circumstances such as the time when thedeceased was last seen with the accused, and the recovery of thecorpse being in very close proximity of time, the accused owes anexplanation under Section 106 of the Evidence Act with regard tothe circumstances under which death may have taken place. Ifthe accused offers no explanation, or furnishes a wrongCexplanation, absconds, motive is established, and there iscorroborative evidence available inter alia in the form of recoveryor otherwise forming a chain of circumstances leading to the onlyinference for guilt of the accused, incompatible with any possiblehypothesis of innocence, conviction can be based on the same. IfDthere be any doubt or break in the link of chain of circumstances,the benefit of doubt must go to the accused. Each case willtherefore have to be examined on its own facts for invocation ofthe doctrine.”

30. We may hasten to clarify that the fact of last seen should notEbe weighed in isolation or be segregated from the other evidence led bythe prosecution. The last seen theory should rather be applied taking intoaccount the case of the prosecution in its entirety. Hence, the Courtshave to not only consider the factum of last seen, but also have to keepin mind the circumstances that preceded and followed from the point ofthe deceased being so last seen in the presence of the accused.F

31. The prosecution in the present case has undoubtedly establishedthat the deceased was last seen alive in the company of the appellants,and has also adduced evidence about the events leading up to andfollowing 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 seen, theGdeceased was constantly in the company of Appellant No.1. PW-3 andPW-4 are the persons who lastly saw the deceased alive on 09.04.1987,and they have categorically deposed that they had seen the deceasedalong with the appellants. Through the depositions of PW-1, PW-5, &PWs 10 to 14 the prosecution has attempted to shed light on the eventsthat occurred post the point of last seen.H

32. The contention that most of the prosecution witnesses wereeither related or close to the complainant party and their testimony couldnot be relied upon in the absence of corroboration by any independentwitnesses, in our opinion, is without much substance. It is trite in law thatthe job of the prosecution is to put forth the best evidence that is collectedduring the investigation. Although it is ideal that the prosecution case isfurther substantiated through independent witnesses, but it would beunreasonable to expect the presence of third-parties in every case. ThisCourt has consistently held that the prosecution’s case cannot bediscarded merely on a bald plea of all witnesses being related to thecomplainant party. Hence, in order to draw an adverse inference againstthe non-examination of independent witnesses, it must also be shownthat though the best evidence was available, but it was withheld by theprosecution.

33. That apart, PW-3 saw Arun and the Appellants on the outskirtsof Kumbhrawan village, whereas, PW-4 saw Arun and the appellantsinside Appellant No.2’s house. Neither of these witnesses claim to haveseen the deceased and the appellants at a public place. Thus, it wouldnot be illogical to infer that there was no independent witness to thisoccurrence. Further, the deposition of both PW-3 and PW-4 seems naturaland nothing has been adduced in their cross-examination for us todisbelieve their testimonies.

34. The Counsel for the Appellants further assailed the last seentheory and submitted that even if the deposition of PW-3 was consideredtrue, 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 couldnot rule out the possibility of intervention by a third party and as suchthere wasn’t a continuous chain of circumstances. While this argumentseems attractive at the first instance, but, when considered in the light oftestimonies made by the independent witnesses PW-6 and PW-8, it standscompletely belied. The Prosecution case is that both the Appellantscommitted the murder on the night of 09.04.1987. PW-8, who discoveredthe body of Arun on 11.04.1987, deposed that he had heard rumors aboutthe dead body the previous night itself, however, on account of it beingdark and a forested area, he was only able to proceed to the spot thenext day. Given that the body was lying on the spot at least since10.04.1987, the instant crime could have been committed on or before A

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A10.04.1987. The medical evidence in the present case further bracesthe prosecution story. PW-6, the Doctor, examined the body of thedeceased on 12.04.1987. In his opinion, the time elapsed since the deathof Arun was 36 to 72 hours. Thus, the medical evidence fully corroboratesthe prosecution story of the murder having being taken place on09.04.1987. We also note that the Courts below have dealt with thisBissue elaborately and have held that the murder of the deceased indeedtook 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 thedecision of this Court in Kashi Ram (Supra) to assert that once the factof last seen is established, the Accused must offer some explanation asCto the circumstances in which he departed the company of the deceased.This position of law, as covered under section 106 of the IEA, was dulyconsidered in the case of Satpal Singh (Supra), wherein, this Courtclarified that if the accused fails to offer any plausible explanation, anadverse inference can be drawn against the accused. In the instant caseDalso, Appellant No.1 has been unable to offer any explanation as tocircumstances in which he departed from the company of the deceased.

36. As regard to the reliability of the depositions of PW-10 toPW-14, the primary contention is that except PW-12, none of the otherwitnesses were able to identify the present appellants. It was furtherEcontended that the testimony of PW-12 seems doubtful as it was highlyimprobable that the witness was able to see Appellant No.2 through thelight of a lamp. Assuming that the depositions of PW-10, PW-11, PW-13and PW-14 do not add much value to the case in hand, the questionwhether PW-12 could or could not identify Appellant No.2 is purely afactual issue and courts below have taken a concurrent view in relationFthereto. Suffice to say that PW-12 was able to identify Appellant No.2because of the chicken-pox marks on his face. Even in the initialstatement recorded by the police, PW-12 had maintained that one of thetwo persons who he had interacted with on the night of 09.04.1987, hadchicken-pox scars on his face.G37. Upon considering the prosecution evidence in its entirety andhaving meditated on the grounds raised by the appellants to every possibleextent, we find no reason to disbelieve the prosecution version of lastseen theory against the appellants.

(ii) MotiveH

38. If motive in a case is attributed to an accused(s) and thereafterproved, the probability of the crime being committed by the said accusedis intensified. It is for this reason, that in cases of overwhelmingcircumstantial evidence, proof of motive will be an important piece ofcorroborative evidence, as well as, form a vital link in the chain ofevidence.

39. The motive attributed to the appellants in this case is that theymurdered the deceased because he was allegedly having an illicit affairwith Rita, sister of Appellant No.1. While none of the witnesses havespecifically deposed about the deceased having an affair with Rita, themotive, as alleged, does find some corroboration in the deposition ofPW-1, PW-3A, and PW-16. It is revealed from the testimony ofPW-3A, that initially there were cordial and friendly relations betweenthe 1[st] Appellant and deceased’s family but the same became sour afterthe month of February. PW-1 who is a fellow villager has corroboratedthe testimonies of PW-3A. PW-16 has categorically deposed that aPanchayat had been called in regards to the illicit relationship of thedeceased with Rita.

40. The fact of the deceased having an affair with the sister ofAppellant No.1 has of course not been established beyond doubt but thefactum of calling Panchayat so that the issue does not spiral out of controldoes suggest that Appellant No.1 carried a motive to eliminate thedeceased. We may not lose sight of the fact that the events had occurredin the year 1987, when the rural Indian society was irrepressiblyconservative, and even the slightest rumor of extra-marital affairs couldflare-up tensions. Considering these ground realities, the Trial Court, inour opinion correctly recorded that the motive as alleged had beensufficiently proved by the prosecution. We also note, that the Counselfor Appellants has not mounted any substantial challenge on the point ofmotive, and as such, we see no reason to interfere with the indictment ofAppellant No.1 on the point of motive.

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

41. We may now briefly consider the false information providedby Appellant No.1 to PW-1 and PW-5. Both of these witnessesindividually met Appellant No.1 on 10.04.1987 and both of them enquiredabout the whereabouts of Arun. Appellant No.1 lied to PW-1 and told A

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Ahim that after viewing the Cinema, Arun alone had proceeded to Amwawhereas 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 tous that the false information provided by the first appellant was an attemptto hide his guilt by de-railing the search efforts that were being conducted.Appellant No.1 thereafter absconded and surrendered before the courtBonly after coercive measures were taken. We are, thus, inclined to agreewith the State Counsel that the false information given by AppellantNo.1 and his post occurrence conduct is relevant to prove an additionallink in the chain of incriminating circumstances.

42. There is, however, a qualitative difference in the evidence ledCby the prosecution to prove charges against Prakash Mahto (AppellantNo.2). The prosecution’s case is that it was the 1st Appellant (SurajdeoMahto) who allured the deceased and persuaded him to accompany thesaid appellant to watch cinema. It is neither their case nor have theprosecution witnesses deposed that Appellant No. 2 was involved in theDpersuasive 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 isproved on record that the 1st Appellant had an axe to grind against thedeceased who was allegedly having illicit relationship with his sister.There is no motive alleged or proved which would have swayed AppellantNo. 2 to commit murder of the deceased. Still further, prosecution hasEled no evidence that there was any meeting of mind between the 1st andthe 2nd Appellant on or before 08.04.1987, or that they hatched anyconspiracy together to commit the murder of Arun. There is also noevidence on record to suggest that Appellant No.1 disclosed his intentionto commit murder of deceased Arun to the 2[nd] Appellant.F

43. It is true that the prosecution has led evidence comprising thestatements of PW-3 and PW-4 who had lastly seen the deceased aliveon 09.04.1987 in the company of the 1[st] and the 2[nd] Appellants. However,until and unless the last seen theory is substantiated by other circumstantialevidence to constitute an unbreakable chain of events, the convictionGcannot rest solely on the basis that the 2[nd] Appellant was also presentalong with Appellant No.1 in the company of the deceased when theywere seen together on 09.04.1987.

44. It is pertinent to mention that some incriminating materialconsisting of one pair of slippers, one handkerchief, a knife, jerrycan andHtwo lungis were found and seized at the place of occurrence. While PW-16, namely, father of the deceased has identified one of the seizedlungis belonging to Appellant No.1, none of the recovered articles havebeen attributed to the 2[nd] Appellant. The only substantial evidence againstthe 2[nd] Appellant is that he too was in the company of the deceased andAppellant No.1 on 09.04.1987, i.e., they were seen together lastly. Evenif we were to presume that the deposition of PW-12 identifying AppellantNo.2 on the night of 09.04.1987 to be true, such evidence, may create astrong suspicion in respect of involvement of the 2[nd] Appellant in themurder of the deceased, but then, mere suspicion cannot be accepted asimpeccable evidence to prove his guilt beyond any doubt.

45. Further, there is post occurrence circumstantial evidence ledagainst Appellant No.1, namely, that he did not disclose the whereaboutsof the deceased and then surreptitiously disappeared from the scene tillhe surrendered in Court. There is no such allegation of being evasive orabsconding post occurrence levelled against Appellant No.2. There are,thus, missing links in the prosecution case so far as the 2nd Appellant isconcerned. Consequently, and for the reasons aforestated, we find thatthe case of Prakash Mahto (Appellant No.2) is distinguishable from thatof Surajdeo Mahto (Appellant No.1) and the prosecution has not beenable to prove the guilt of 2nd Appellant beyond the pale of doubt. The2nd 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 Justice(Care and Protection of Children) Act, 2000 [in short, “JJ Act”] sets outthe 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” andat “any stage”, even after the final disposal of the case. However, inorder to take advantage of the aforesaid provision, there lies an initialonus on the accused to produce some cogent evidence to prima facieestablish the juvenility on the date of commission of the offence.

47. In the instant case, the 1[st] Appellant has raised plea of juvenilityfor the first time before this Court. He has placed before us a SchoolLeaving Certificate along with an Admit Card issued by the Bihar SchoolExamination Board, wherein, Appellant No.1’s date of birth is claimedto be 01.03.1970. It has been asserted that the 1[st] Appellant was 17years old at the time of occurrence. Learned counsel for the appellantshas also drawn our attention to the decision in Abuzar Hossain (Supra), AB

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Awherein, this Court exhaustively dealt with the provisions and the scopeof JJ Act and held as under:

“39.3. As to what materials would prima facie satisfy the courtand/or are sufficient for discharging the initial burden cannotbe catalogued nor can it be laid down as to what weightBshould be given to a specific piece of evidence which may besufficient to raise presumption of juvenility but the documentsreferred to in Rules 12(3)(a)(i) to (iii) shall definitely besufficient for prima facie satisfaction of the court about theage of the delinquent necessitating further enquiry under Rule12. The statement recorded under Section 313 of the Code isCtoo tentative and may not by itself be sufficient ordinarily tojustify or reject the claim of juvenility. The credibility and/oracceptability of the documents like the school leavingcertificate or the voters’ list, etc. obtained after convictionwould depend on the facts and circumstances of each caseDand no hard-and-fast rule can be prescribed that they mustbe prima facie accepted or rejected….”

(Emphasis Supplied)

48. When the documents relied upon by 1[st] Appellant are analysedin the backdrop of these settled principles, we find that the same do notEinspire any confidence. The name of Appellant No.1 does not appear onthe documents, instead these belong to one ‘Suryadev Prasad’. It isnearly impossible to verify the veracity of the two documents reliedupon by Appellant No.1 at this highly belated stage. Further, the recordof the Trial Court does suggest that the name of the 1[st] Appellant isF‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In the absence of anycogent material indicating that the subject – documents pertain 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 questionand reject the plea of juvenility raised by the 1[st] Appellant.

ConclusionG

Conclusion

ConclusionG

49. In light of the above discussion, the instant appeal is partlyallowed. While the conviction and sentence of Surajdeo Mahto (AppellantNo.1) is upheld and appeal qua him is dismissed, the 2[nd] Appellant(Prakash Mahto) is acquitted of the charges. The bail bonds furnished H

by the 1[st] Appellant are cancelled and he is directed to surrender toundergo remainder of the sentence. The 2[nd] Appellant’s bail bonds aredischarged.

Nidhi Jain

Appeal partly allowed.

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