Jharkhand High Court

Ashwani Kumar Jha @ Bablu Jha S/O Late ... vs The State Of Bihar (Now Jharkhand) on 2 May, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

                                          2025:JHHC:13669-DB



        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           -----
             Cr. Appeal (DB) No.283 of 1998
                             ------
  Ashwani Kumar Jha @ Bablu Jha S/o Late Bateshwar Jha, resident

  of village Dubrajpur P.S. Godda (Mufassil) District Godda, at

  present resident of mohalla Rajendra Nagar Godda P.S. Godda

  (Town) District Godda.

                                                       .... Appellant

                                 Versus

  The State of Bihar (Now Jharkhand)
                                                       .... Respondent

                         PRESENT
          HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
          HON'BLE MR. JUSTICE RAJESH KUMAR
                              .....

  For the Appellant        : Mr. Jay Prakash Jha, Sr. Advocate
                             Mr. Aishwarya Prakash, Advocate
                             Mr. P.K. Jha, Advocate
  For the State            : Mr. Manoj Kr. Mishra, APP
                                    .....

  Order No.6/Dated 02.05.2025
  Per Sujit Narayan Prasad, J.

1. The instant appeal filed under Section 374 read with Section

389(1) of the Code of Criminal Procedure, is directed against the

judgment of conviction dated 06.04.1998 and order of sentence

dated 07.04.1998 passed by the 1st Additional Session Judge, Godda

in Sessions Case No. 135/92/110/96, whereby and whereunder,

the appellant has been convicted for the offence punishable under

Sections 302/34 of the Indian Penal Code and sentenced to

undergo imprisonment for life.

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Factual Matrix

2. This Court, before proceeding to examine the legality and propriety of

the judgment of conviction and order of sentence, deems it fit and

proper to refer the background of institution of prosecution case.

3. The prosecution story in brief as per the fardbeyan of the informant,

namely, Naresh Jha which has been recorded on 27.03.1992 that the

previous day at about 9 A.M his son Sanjay Kumar(deceased) had

gone for teaching in the Sawarsati Vidya Mandir and was expected

to return back in the evening by 7 P.M. but his son did not return in

the night and at about 7 A.M. in the morning he came to know that

the dead body of his son is lying in the river bed of Kajhiya. It has

further bean alleged that in the previous night at about 9.30PM his

son-in-law(appellant) alongwith one Sachidanand Mishra had

come to his house and started searching for the son of the

informant and had also allegedly demanded Rs.15,000/-.

4. The Informant (P.W4) has further alleged that the appellant had

stayed in the house of the Informant alongwith his daughter. In the

morning, he came to know that his son was lying dead in the river

bed of Kajhiya. Later on, it was stated by his daughter namely

Sangita that this appellant had threatened to kill the deceased.

5. When the appellant heard that the inmates of the house knew of

the murder of Sanjeev Kr. Jha, both of them fled from his house and

while fleeing away Ashwini Kr. Jha(appellant) slapped his wife four

times.

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6. On the basis of the fardbeyan of the informant the formal F.I.R. was

drawn up and the case was registered U/S 302/34 of the Indian Penal

Code and the investigation was taken up.

7. After completion of investigation chargesheet was submitted and

finally the trial commenced after commitment.

8. In order to prove its case, the prosecution has examined altogether

10 witnesses namely P.W.1 Murlidhar Pandey, P.W.2 Kuldev Sikdar,

P.W.3 Akhileshwar Kayari, P.W.4 Naresh Jha (informant and father of

deceased), P.W.5 Rabindra Jha, P.W.6 Chandrashekhar Jha, P.W.7

Binay Chandra Chaudhary the Investigating Officer, P.W.8 Dr. Ajit

Kumar who held autopsy over the dead body of the deceased, P.W.9

Dropadi Devi, and P.W.10 Udaikant Shukla.

9. Out of the aforesaid witnesses P.W.5 and 10 has been declared hostile

and P.W.6 has been tendered for cross-examination.

10. The appellant was charged for offence punishable under Sections

302/34 of the Indian Penal Code to which the he pleaded not guilty and

claimed to be tried. The statement of the appellant was recorded under

Section 313 of Cr.P.C.

11. Accordingly, the trial proceeded and the appellant was found guilty by

the learned trial Court for the offence punishable under Section 302/34

of the Indian Penal Code and sentenced to undergo RI for life under

section 302 of the Indian Penal Code.

12. The aforesaid order of conviction and sentence is under challenge

herein.

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Arguments advanced by the learned counsel appearing for the

appellant:

13. Mr. Jay Prakash Jha, the learned Senior Counsel appearing for the

appellant has taken the following grounds:

(i) It has been submitted that, as per the prosecution version,

it is a case of circumstantial evidence and there is no eye

witness and the yardstick which is to be followed by the

learned trial Court in a case of circumstantial evidence

has not been followed.

(ii) The learned trial court has not taken care of the settled

proposition of law that in the case of circumstantial

evidence, the parameters which is to be followed by the

learned trial Court is stricter in comparison to that of the

case based upon the testimony of the eye witnesses, since,

in a case of the circumstantial evidence, each and every

aspect of the matter regarding the culpability said to be

committed by one or the other accused person is directed

to be taken into consideration in order to come to the

conclusive finding that the charge said to be proved is

beyond reasonable doubt.

(iii) The ground has been taken that none of the witnesses

have seen the occurrence and merely on the basis of the

alleged extra judicial confession made by the appellant

before his wife, the prosecution has been instituted

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against the appellant and based upon that, order of

conviction has been passed.

(iv) The argument has been advanced that the aforesaid aspect

of the matter regarding the non-examination of the sister

of the deceased who is the wife of the present appellant

has been taken note by the learned trial Court but even

then, the finding has been recorded that the prosecution

has been able to prove the charge said to be proved is

beyond all reasonable doubt.

14. The learned counsel, based upon the aforesaid ground, has

submitted that it is a case of no evidence and as such, the impugned

judgment needs to be set aside.

Arguments advanced by the learned counsel appearing for the

respondent:

15. The learned Additional Public Prosecutor appearing for the State,

while defending the impugned judgment, has submitted that it is

incorrect on the part of the appellant to take the ground that it is a

case of no evidence, rather ample evidence has been found by the

prosecution to establish the complicity of the present appellant in

the alleged commission of crime.

16. The learned Addl Public Prosecutor, appearing for the State, based

upon the aforesaid premise, has submitted that the impugned

judgment does not suffer from any error, hence the instant appeal

is fit to be dismissed.

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Analysis

17. We have heard learned counsel for the parties and gone through

the finding recorded by the learned trial Court in the impugned

judgment as also the testimony available in the Lower Court

Records and the other material exhibits available therein.

18. The prosecution has examined altogether 10 witnesses including

the Investigating Officer and the doctor. The reference of the

testimony of the witnesses needs to be referred herein which reads

as under:

PW-1, Murlidhar Pandey who is an advocate of Godda has

deposed that on 27.03.1992, he came to know that the dead

body of Sanjeev Kr. Jha was thrown in Kajhiya river. He went

there and saw the dead body. He further testified that he has

learnt from the mother and father of the deceased that the

murder was committed by Ashwani Jha and Sachidanand

Mishra. The witness further deposed that the victim Sanjeev Kr.

Jha was a teacher in Sarwasati Vidhya Mandir. In his cross-

examination, he has stated that he was running the school since

July-1991.

PW-2 Kuldev Sikdar is a co-villager had deposed that in the

morning there was hue and cry that Sanjeev Kr. Jha was killed,

he went there and saw the dead body in the river Kajhia. He has

testified that one lady (Sangita Jha was weeping there and while

weeping she was stating that her husband had killed. The

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witness further deposed that Sangita Jha has declared that her

husband had killed the deceased victim. The witness further

testified that one of the accused was husband of Sangita Jha and

other was his colleague. He identified the husband of Sangita as

Ashwani Jha.

In cross-examination he had testified that he had not told to

sub-inspector (Daroga) that Sangita had stated her husband had

killed the deceased victim.

PW-3, Akhleshwar Kayari, the store keeper, Sadar Hospital

Godda, is the co-villager, had deposed that when he was

proceeding to join his duty, he was informed by the father of the

deceased/victim that his son-in-law had killed his son. This

witness has not been cross-examined.

PW-4, Naresh Jha who is the informant had testified on the

same line as alleged in the fardbeyan. He had stated that his son

had been killed. He further deposed that his son used to come

Shivpur every day to teach and thereafter used to go home

every evening. He had testified that both the persons standing

in the dock had gone to his place and among them one is his

son- in law (pointing) and another was his friend Sachida and

when both of them reached home, his son-in-law washed his

feet inside the house and Sachida washed his feet outside.

He further testified that his son-in-law started washing

clothes and thereafter his son-in law had breakfast. He further

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deposed that Sachida slept in the courtyard and his daughter

and son-in-law slept in the room and he slept outside. He had

testified that at 4.00 am, quarrel had started between his

daughter and son-in-law and his son-in-law said to his daughter

that he had killed her brother. He further testified that he also

heard that his son-in-law had killed his son, thereafter he tried

to catch them, but both of them ran away wearing suits and

boots. He had further testified that after the murder of his son,

he asked to his daughter if she would stay here or go to her in-

laws' house, then she said she will stay here.

In his cross-examination, at para 7 PW-4 has testified

that he woke up before the sun rose and had not gone to the

field till then and when his daughter started weeping, he asked

then her daughter said that her husband had killed her brother.

He had deposed that his daughter raised an alarm and he did

not raise an alarm in the village. At para-8 of the cross

examination he had stated that his daughter and son-in-law

were in good terms and there was no quarrel in between his

son and son-in-law.

PW-5, is the cousin brother of the victim has been declared

hostile by the prosecution.

PW-6 was tendered for cross-examination.

PW-7, is the investigating officer of the case. He had deposed

that on 27.03.1992, an information was received that one

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dead body was lying in river Kajhiya. The information was

entered as Sanha No. 564, thereafter he along with Officer-in-

charge Madan Mohan Sharma went to Kajhiya River. He had

learnt there that the deceased victim was the son of Naresh

Jha, then they had gone to the house Naresh Jha. The

fardbeyan of Naresh Jha was recorded by M.M. Sharma. He

identified the fardbeyan and the same was marked as Ext-2.

He also identified the formal FIR which was drawn by munshi

namely Nand Kishore Srivastava and same was marked as Ext

3. He had also prepared the inquest report in carbon process

and the same was mentioned in para 6 of the case diary..

P.W.8 Dr. Ajit Kumar is the doctor who had conducted post-

mortem on the deceased body on 27.03.1992 and he had

found following ante mortem injuries :-

i) Two linear abrasion 1/2" apart on the upper part of the neck

1/2 inch in length.

ii) Two linear vertical abrasions 1/2" in length present below the

chin in the sub mental region 1/2" apart from each other.

On dissection scalp normal skull infect, brain congested with

petechial haemorrhage and moderate amount of dark blood

came after opening the skull.

Neck- On dissection of neck muscles, neck was lacerated and

congested. From the upper part of neck copious amount of dark

blood came behind the skin. Trachea congested.

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On the opening of trachea mucus membranes found little

congested. Rupture of the surroundings vessels of the neck.

Lungs congested bilaterally (means both lungs) Heart fall of

blood with all the chambers. Liver congested. Stomach contains

semi digested food material. Spleen congested. Kidneys

congested. Intestine contains gas and fecal matter.

Bladder partially filled with urine. Probable time since death

within twenty-four hours.

Probable cause of death shock and asphyxia as a result of

strangulation. The report is in pen and bears his signature. Ext.

5 marked.

This witness in cross examination had stated that he did not

find protruded teeth. Blood was not oozing from ears or nose.

There was no discharge of semen from penis. Trachea was

intact but it was congested. He further testified that he did not

find mark of ligature on neck. He did not find mark of finger on

neck. He further testified that he had not found any injury on

hip or back on the body of deceased.

P.W.9 Dropadi Devi is the mother of the deceased. She is not

the charge-sheeted witness. She had supported the prosecution

case fully and further stated that a pistol was snatched away by

her daughter from the accused which was handed over the S.P.

PW-10 Udaykant Shukla has been declared hostile by the

prosecution.

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19. The learned trial Court, on consideration of the testimony of the

witnesses and the extra judicial confession alleged to be given by

the appellant has come to conclusive finding that the said charges

have been proved beyond reasonable doubt against the present

appellant.

20. The learned trial Court, on the basis of the aforesaid consideration,

has convicted the appellant under section 302/34 of the Indian

Penal Code, which is under challenge in the instant appeal.

21. This Court, after referring the testimony of the witnesses and after

appreciating the arguments made on behalf of the appellant, as per

the grounds agitated as referred hereinabove, the sole ground is

that it is a case of no evidence and the yardstick which has to be

followed in the case of circumstantial evidence has not been

followed.

22. This Court has found from the material available on the record that

admittedly it is a case of no eyewitness, rather the case is based

upon the circumstantial evidence. Further it is anundisputed fact in

the instant case is that the sister of deceased before whom the

alleged extra judicial confession has been made by the present

appellant has not been examined. As per the paragraph -9 of the

impugned order the sister of the deceased namely Sangita Jha

before whom alleged confession was made by the appellant was

found dead in the house of present appellant therefore, she could

not have been examined.

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23. This Court, on the basis of the aforesaid factual aspect vis-à-vis

argument advanced on behalf of parties, is now proceeding to

examine the legality and propriety of the impugned judgment of

conviction and order of sentence by formulating following

questions to be answered by this Court:

(I). Whether the prosecution has been able to prove the charge

beyond all shadow of doubt?

(II). Whether the prosecution has been able to prove the

charges leveled against the appellant based on the fact of the

given case?

(III). Whether the conviction of the present appellant based

upon extrajudicial confession which has not been proved by

the person before whom it has been made.

(IV) Whether on the basis of the testimony of the witnesses

can it be said to be a case based on circumstantial evidence

or if it based upon the circumstantial evidence the chain is

being completed or not?

24. Since all the issues are inter-linked with each other and as such

they are being taken together by taking into consideration the facts

of the given case including the testimony of the witnesses.

25. As is evincible, the entire case rests on circumstantial evidence.

Before we analyze and appreciate the circumstances that have

weighed with the trial court, we think it apposite to refer to certain

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authorities pertaining to delineation of cases that hinge on

circumstantial evidence.

26. There is no quarrel with the settled position of law that in the case

of circumstantial evidence, the chain should be complete then only

there will be conviction of the concerned accused person, as has

been laid down by the Hon'ble Apex Court in the case of Hanumant

son of Govind Nargundlar vs. State of Madhya Pradesh, AIR

1952 SC 343 wherein it has been held that "It is well to remember

that in cases where the evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established, and all the facts so

established should be consistent only with the hypothesis of the

guilt of the accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be such as to

exclude every hypothesis but the one proposed to be proved. In

other words, there must be a chain of evidence so far complete as

not to leave any reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as to show that

within all human probability the act must have been done by the

accused."

27. The same view has been taken by the Hon'ble Apex Court in

Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein

the Hon'ble Apex Court has observed that the principle in a case

resting on circumstantial evidence is well settled that the

circumstances put forward must be satisfactorily proved and those

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circumstances should be consistent only with the hypothesis of the

guilt of the accused. These circumstances should be of a conclusive

nature and tendency and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other words,

there must be a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent with the

innocence of the accused and it must be such as to show that within

all human probability the act must have been done by the accused.

28. The Hon'ble Apex Court while laying down such proposition in the

said case has considered the factual aspect revolving around

therein and while considering the fact has only found the

incriminating evidence against the appellant was his pointing the

place where the dead body of the deceased had been thrown which

the Hon'ble Apex Court has not considered to be circumstantial

evidence though undoubtedly it raises a strong suspicion against

the appellant. The Hon'ble Apex Court while coming to such

conclusion has observed that even if he was not a party to the

murder, the appellant could have come to know the place where

the dead body of the deceased had been thrown. Hence anyone

who saw those parts could have inferred that the dead body must

have been thrown into the river near about that place. In that

pretext, the law has been laid down at paragraph-9 thereof, which

reads as under:

"9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It

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is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again, those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

29. It is, thus, evident from the close analysis of the aforesaid

judgments, the following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(i) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

(ii) the facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say,

they should not be explainable on any other hypothesis

except that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and

tendency,

(iv) they should exclude every possible hypothesis except the

one to be proved, and

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(v) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in

all human probability the act must have been done by the

accused.

30. The Hon'ble Apex Court has reiterated the said principle again in

the case of Sharad Birdhichand Sarda vs. State of Maharashtra,

(1984) 4 SCC 116 holding all the above five principles to be the

golden principles which constitute the panchsheel of the proof of a

case based on circumstantial evidence. The Hon'ble Apex Court in

the said case as under paragraph-155, 156, 157, 158 and 159 has

been pleased to hold that if these conditions are fulfilled only then a

Court can use a false explanation or a false defence as an additional

link to lend an assurance to the court and not otherwise.

Paragraphs-155, 156, 157, 158 and 159 of the said judgment read

as under:

"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and

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compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."

156. Lord Goddard slightly modified the expression "morally certain" by "such circumstances as render the commission of the crime certain".

157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500] Lagu case [AIR 1960 SC 500] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -- Tufail case [(1969) 3 SCC 198] , Ramgopal case [(1972) 4 SCC 625] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,]. There are a number of other cases where although Hanumant case [(1952) 2 SCC] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405,] -- a five-Judge Bench decision.

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158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: "But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation. such absence of explanation or false explanation would itself be an additional link which completes the chain."

159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."

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31. The foremost requirement in the case of circumstantial evidence is

that the chain is to be completed. In Padala Veera Reddy v. State

of A.P. [1989 Supp (2) SCC 706 the Hon'ble Apex Court held that

when a case rests upon circumstantial evidence, the following tests

must be satisfied:

"10. ... (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

32. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259]

it has been laid down by the Hon'ble Apex Court as that the

circumstances from which the conclusion of guilt is to be drawn

should be fully proved and those circumstances must be conclusive

in nature to connect the accused with the crime. Relevant

paragraph of the aforesaid judgment is being quoted as under:

"4. ... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and

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those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."

33. In Harishchandra Ladaku Thange v. State of Maharashtra

[(2007) 11 SCC 436, while dealing with the validity of inferences

to be drawn from circumstantial evidence, it has been emphasized

by the Hon'ble Apex Court that where a case rests squarely on

circumstantial evidence, the inference of guilt can be justified only

when all the incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of any

other person and further the circumstances from which an

inference as to the guilt of the accused is drawn have to be proved

beyond reasonable doubt and have to be shown to be closely

connected with the principal fact sought to be inferred from those

circumstances.

34. In Ram Singh v. Sonia (2007) 3 SCC 1, while referring to the

settled proof pertaining to circumstantial evidence, the Hon'ble

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Apex Court reiterated the principles about the caution to be kept in

mind by court. It has been stated therein as follows:

"39. ... in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."

35. In Ujjagar Singh v. State of Punjab (2007) 13 SCC 90, after

referring to the aforesaid principles pertaining to the evaluation of

circumstantial evidence, the Hon'ble Apex Court observed as

under:

"14. ... It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."

36. The judgment referred in Hanumant (supra) has been consistently

followed by Hon'ble Apex Court in the judgment rendered in Tufail

(Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC 198];

Ram Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and

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also in Musheer Khan alias Badshah Khan & Anr. Vs. State of

Madhya Pradesh [(2010) 2 SCC 748.

37. The Hon'ble Apex Court in Musheer Khan (Supra) while discussing

the nature of circumstantial evidence and the burden of proof of

prosecution has held as under paragraph nos. 39 to 46 as under:

39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.

40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion.

Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

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41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] )

42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 :

1992 Cri LJ 3693] , SCC p. 309, para 20.)

43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.

44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have

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a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are: "5. ... „10. ... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude

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every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.‟ [ As observed in Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46, para 10.]

38. The Hon'ble Apex Court in the case of Laxman Prasad @ Laxman

vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of

2012 dated 14.06.2023 has held at paragraphs-3 & 4 as follows:

"3. We do not find such conclusion of the High Court to be strictly in accordance with law. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point. Reference may be had to the following cases:

(i) Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116; (ii) Sailendra Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC 180

4. Thus, if the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with."

39. Thus, it is evident that for proving the charge on the basis of

circumstantial evidence, it would be necessary that evidence so

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available must induce a reasonable man to come to a definite

conclusion of proving of guilt; meaning thereby there must be a

chain of evidence so far it is complete as not to leave any

reasonable ground for a conclusion consistent with the innocence

of the accused and it must be such as to show that within all human

probability the act must have been done by the accused.

40. Keeping in view the aforesaid settled connotation of law, we shall

presently proceed to scrutinize and evaluate the circumstances,

whether the said circumstances coupled with the alleged extra

judicial confession establish the guilt of the accused/appellant

beyond reasonable doubt.

41. It needs to refer herein that the parameter in a case of eye witness

is different while the parameter which is to be followed in the case

of circumstantial evidence is quite different. But in both the

circumstances, the underlying principle is that the charge is to be

proved beyond all reasonable doubt.

42. The proving of charge beyond all reasonable doubt is the litmus

test to substantiate the charge said to be committed by one or the

other.

43. Further, as per the settled position of law as discussed herein

above it is evident that in a case of circumstantial evidence, in

order to come to the conclusion of proving the charge said to be

proved beyond reasonable doubt, the chain is required to be

completed, meaning thereby, there must not be any iota of doubt in

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commission of crime, since, while proving the charge, the utmost

care is to be taken into consideration is of snatching away the

personal liberty and, as such the parameter of proving the charge

beyond all reasonable doubt is sine qua non for convicting a person

so as to deprive him his personal liberty granted under Article 21

of the Constitution of India.

44. This Court, after referring the impugned judgment and adverting to

the testimony as recorded in course of the trial of the witnesses

produced on behalf of the prosecution has found that the PW-4, the

father has deposed in his evidence that he has not seen the

occurrence, rather, he has deposed that at about 4.00AM on the

following day quarrel begin between his daughter and son-in-law

and he had heard that his son-law stated that he had killed her

brother (son of this witness).

45. But at the same time in the cross-examination, he had categorically

stated that he woke up before the sunrise and had not gone to the

field till then and when his daughter started weeping, he then

asked his daughter who said that her husband had killed her

brother. He had deposed that his daughter raised an alarm and he

did not raise an alarm in the village. Thus, from the aforesaid it is

evident there is intra-se contradiction in testimony of the

informant as such on the point of the extra judicial confession, the

statement of this witness is not fit to be relied upon.

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46. It is evident from the consideration of the testimony as referred

herein that none of the witnesses have deposed that they have seen

commission of crime and nothing has been said about recovery of

the incriminating material used in commission of crime.

47. We have considered the testimony of Investigating Officer and

found that even the Investigating Officer, who has been examined

as PW-7 has not deposed about the recovery of the incriminating

material and even no reference of recording any confessional

statement is available.

48. However, it has come in his testimony that the appellant, after

commission of crime, has informed about the same to his wife, the

sister of the deceased. But the sister of the deceased could not have

been examined as prosecution witness. However, P.W.4 has

substantiated the aforesaid fact of extra judicial confession but as

per the discussion made hereinabove this Court has come to the

finding that on this point the testimony of P.W.4 is not fit to be

relied upon due to the major intra-se contradiction in his

testimony.

49. At this juncture it needs to refer herein that there is no dispute

about the position of law as mandated that extrajudicial confession

is a weak piece of evidence and where an extra-judicial confession

is surrounded by suspicious circumstances, its credibility becomes

doubtful and it loses its importance. It is well-settled that it is a rule

of caution where the court would generally look for an independent

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reliable corroboration before placing any reliance upon such

extrajudicial confession. Reference in this regard may be made to

the judgment rendered by the Hon'ble Apex Court in the case of

Nikhil Chandra Mondal vrs. State of West Bengal 2023 Live

Law (S.C.) page 171 wherein it has been held as under:

"15. It is a settled principle of law that extra judicial

confession is a weak piece of evidence. It has been held that

where an extra-judicial confession is surrounded by

suspicious circumstances, its credibility becomes doubtful

and it loses its importance. It has further been held that it is

well-settled that it is a rule of caution where the court

would generally look for an independent reliable

corroboration before placing any reliance upon such extra

judicial confession. It has been held that there is no doubt

that conviction can be based on extra-judicial confession,

but in the very nature of things, it is a weak piece of

evidence. Reliance in this respect could be placed on the

judgment of this Court in the case of Sahadevan and

Another v. State of Tamil Nadu2. This Court, in the said

case, after referring to various earlier judgments on the

point, observed thus: "16. Upon a proper analysis of the

abovereferred judgments of this Court, it will be

appropriate to state the principles which would make an

extrajudicial confession an admissible piece of evidence

capable of forming the basis of conviction of an accused.

These precepts would guide the judicial mind while dealing

with the veracity of cases where the prosecution heavily

relies upon an extra 13 judicial confession alleged to have

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been made by the accused: (i) The extra-judicial confession

is a weak evidence by itself. It has to be examined by the

court with greater care and caution. (ii) It should be made

voluntarily and should be truthful. (iii) It should inspire

confidence. (iv) An extra-judicial confession attains greater

credibility and evidentiary value if it is supported by a

chain of cogent circumstances and is further corroborated

by other prosecution evidence. (v) For an extra-judicial

confession to be the basis of conviction, it should not suffer

from any material discrepancies and inherent

improbabilities. (vi) Such statement essentially has to be

proved like any other fact and in accordance with law."

51. The Hon'ble Apex Court in Kulvinder Singh & Anr. vrs. State of

Haryana A.I.R. 2011 S.C. 1777 has held as under:

"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the 14 confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken

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to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra- judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

52. It has come herein that it has been disclosed to the PW-7 that

the Sangita Jha, sister of the deceased, has informed that her

husband, the appellant herein, has committed murder of her

brother. But due to non-examination of the said Sangita Jha,

the said aspect of the matter remains uncorroborated.

53. Further it requires to refer herein that as per P.W.8 the cause

of death of the deceased was shock and asphyxia as a result of

strangulation. But in cross examination he had stated that he

did not find mark of ligature on neck and he also did not find

mark of finger on neck. From the aforesaid, it is evident that

cause of death of deceased has not been fully established.

54. Further the P.W.9 who is mother of the deceased had stated

that her daughter had snatched pistol from the hand of the

present appellant which has been handed over to the

concerned Superintended of the Police, but from the record it

is evident that pistol has not been used in the alleged

commission of crime since doctor had not found any bullet

injury on the body of the deceased.

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55. Thus, on the basis of the discussion made hereinabove it is

evident that prosecution has failed to establish the charges

beyond reasonable doubt against the present appellant.

56. At this juncture it needs to refer herein that the Hon'ble Apex

Court in catena of decision has propounded the proposition

that in the criminal trial, there cannot be any conviction if the

charge is not being proved beyond all reasonable doubts, as

has been held in the case of Rang Bahadur Singh & Ors. Vrs.

State of U.P., reported in (2000) 3 SCC 454, wherein, at

paragraph-22, it has been held as under:-

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

57. Likewise, the Hon'ble Apex Court in the case of Krishnegowda &

Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has

held at paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we

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feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

58. Further, it is the settled proposition of law that if the result of

cross-examination of prosecution witnesses, accused could

establish the probability of his defence and if probability was

established by accused, it would really entitle him to the benefit of

doubt, reference in this regard may be made to the judgment

rendered by the Hon'ble Apex Court in the case of Bhikam Saran

Vrs. State of U.P., reported in (1953) 2 SCC 560, wherein, at

paragraph-16, it has been held as under:

"16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross- examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt."

59. This Court, in view of the aforesaid and applying the principle

as laid down by the Hon'ble Apex Court which has been

referred hereinabove is of the considered view that in the

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instant case prosecution has miserably failed to connect the

culpability said to be committed by the appellant in alleged

commission of crime with the circumstances available herein

and as such chain of the circumstances has not been

completed.

60. The learned trial Court although has referred the testimony of

the prosecution witnesses and even admitting the fact that the

case is not based on testimony of eyewitness and also