ANJAN KUMAR SARMA & ORS.versusSTATE OF ASSAM

                       [2017] 3 S.C.R. 991


               ANJAN KUMAR SARMA & ORS.                            A
                               v.
                       STATE OF ASSAM
                (Criminal Appeal No. 560 of 2014)
                         MAY23,2017                                B

       [L. NAGESWARA RAO AND NAVIN SINHA, JJ.)
      Evidence - Last seen theory - Reliability of. when - Held:
Circumstance of last seen together cannot by itself/arm the basis
of holding the accused guilty of the offence - In a case where the
other links have been satisfactorily made out and the circumstances
                                                                    c
point to the guilt of the accused, the circumstance of last seen
together and absence of explanation would provide an additional
link which completes the chain - In the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of D
conviction - On facts, other circumstances not being proved, onZv
two circumstances against the accused that they were last seen
together with the deceased and absence of any explanation
forthcoming by the accused - Due to lack of chain of circumstances
which lead to the only hypothesis of guilt against accused, the E
judgment of the High Court convicting the appellants for offences
u!ss. 302, 201 r!w s. 34 set aside - Penal Code, 1860 - ss. 302,
201 r!w s. 34.
      Allowing the appeal, the Court
      HELD: 1.1 Suspicion cannot take the place of legal proof F
for sometimes, unconsciously it may happen to be a short step
between moral certainty and the legal proof. At times it can be a
case of "may be true." But there is a long mental distance
between "may be true" and "must be true" and the same divides
conjunctures from sure conclusions. It is settled law that
inferences drawn by the court have to be on the basis of G
established facts and not on conjectures. [Paras 15, 16)[1002-B-
C]
      Jaharlal Das v. State of Orissa (1991) 3 SCC 27 :
      [1991] 2 SCR 298; Sujit Biswas v. State of Assam
      (2013) 12 SCC 406 : [2013] 3 SCR 830 - relied on.            H
                              991
992         SUPREME COURT REPORTS                   [2017] 3 S.C.R.


A       1.2 The inference that was drawn by the High Court that
  the death was caused on 28.12.1992 within the time of 48 hours
  as mentioned in the post mortem report is not correct. The post
  mortem examination was conducted on 30.12.1992 at 12:00 noon
  and it was opined by PW-11 that the death occurred 24 to 48
B hours prior to the time of post mortem examination. Even if the
  time is stretched to the maximum of 48 hours, the death was
  after 12:00 noon on 28.12.1992. The deceased was in the
  company of the accused till 9:00 pm on 27.12.1992. The
  inference drawn by the High Court that the accused have killed
  the deceased on 28.12.1992 in the night time and thrown the
C body on the railway track is not on the basis of any proved facts.
  The trial court was right in holding that there is no evidence on
   record to show that the deceased was with the accused after
   12:00 noon on 28.12.1992.[Para 16][1002-D-F)
         1.3 The prosecution relied upon nine circumstances to
 D prove the charges against all the accused. PW-11 who conducted
   the Autopsy opined that the death of the victim was due to the
   ante mortem incised wound found on the skull which could have
   been caused by khukri. It is accepted that the recovery of the
   khukri was not supported by any independent witnesses. The
   prosecution also failed to prove that there were blood stains on
 E the said khukri. The blood stains found in the bathroom of the
   bungalow were sent for examination which resulted in a negative
   report. The above circumstances not being proved would leave
   only two circumstances against the accused which are that the
   accused were last seen together with the deceased and the
 F absence of any explanation forthcoming by the accused. [Para
    17)(1002-F-H; 1003-A)                     ,,
         1.4 The circumstance of last seen together cannot by itself
   form the basis of holding the accused guilty of the offence. In a
   case where the other links have been satisfactorily made out and
 G the circumstances point to the guilt of the accused, the
   circumstance of last seen together and absence of explanation
   would provide an additional link which completes the chain. In
   the absence of proof of other circumstances, the only
   circumstance of last seen together and absence of satisfactory
   explanation cannot be made the basis of conviction. [Paras. 18,
 H 21)(1003-B; 1004-G-H]
               ANJAN KUMAR SARMA v. STATE OF ASSAM                        993



      1.5 Due to the lack of chain of circumstances which lead            A
to the only hypothesis of guilt against the accused, the judgment
of the High Court is set aside and the appellants are acquitted
of the charges of Section 302, 201 read with Section 34
IPC.[Para 22)[1006-D)
         Deonandan Mishra v. State of Bihar (1955) 2 SCR 570              B
         - relied on.
         State of Goa v. Sanjay Thakran (2007) 3 SCC 755 :
         [2007] 3 SCR 507 - distinguished.
         Brahm Swaroop v. State of UP (2011) 6 SCC 288 :
         [2010] 15 SCR 1; Sharad Birdhichand Sarda v. State               c
         of Maharashtra (1984) 4 SCC 116 : (1985] 1 SCR 88;
         MG Agarwal v. State of Maharashtra AIR 1963 SC
         200 : [1963] SCR 405; Kanhaiya Lal v. State of
         Rajasthan (2014) 4 SCC 715 : [2014] 3 SCR 744;
         Arjun Marik v. State of Bihar (1994) Supp 2 SCC 372              D
         : [1994] 2 SCR 265; Bharat v. State of MP.(2003) 3
         SCC 106 : [2003) 1 SCR 748 - referred to.
                                Case Law Reference
              [2010)
               r•.
                     15 SCR
                        . .
                            1                 referred to      Para 12
     I        (1985] 1 SCR 88                ·· referred to   , Para 13   E
                                     i. ~'


              [1963] 'SCR 405                 referred to      Para 13
              [1991) 2 SCR 298                relied on ·      Para 15
                                       ., .
               3 sell 8~0
          0




     .. (2013]
         '-
                                              relied on        Para 16
                                                                          F
              [2014] 3 SCR 744                referred to      Para 18
              [1994] 2 SCR 265                referred to      Para 18
              [2003) 1 SCR 748                referred to      Para 19
              [1955) 2 SCR 570                relied on        Para 20
              (2007] 3 SCR 507                distinguished Para 21       G
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 560 of2014.
      From the Judgment and Order dated 11.11.2013 of the High Court
of Assam at Gauhati in Criminal Appeal No. 337 of2003.
                                                                          H
994           SUPREME COURT REPORTS                         [2017] 3 S.C.R.


A         Sushi! Kumar, Amarendra Sharan. Sr. Advs .. Aditya Kumar.
   Biswajit Swain. Biswajit Patra, Avnish Sharma, R. M. Patnaik. Parthiv
   K. Goswami, Kailash Chand, Sidharth Dave, R. N. Karanjawala,
   Sandeep Kapur, Shivek Trehan, Vivek Suri, Ms. Niharika Karanjawala,
   Abhimanshu Dhyani, Manik Karanjawala (for Karanjawala & Co.),Advs.
 B fortheAppellants.
            R. Venkataramani, Sr. Adv., Debojit Borkakati, M. Balashuvudu,
      Yashraj Singh Bundela, Advs. for the Respondent.
            The Judgment of the Court was delivered by
          L. NAGESWARA RAO, J. 1. The Appellants along with Jitendra
 C Nath Kakati alias Jit Kakati were charged for committing offences under
   Section 302, 376 (2) (g), 201 read with Section 34 of the Indian Penal
   Code, 1860 (hereinafter referred to as the '!PC'). Accused Jit Kakati
   was separately charged under Section 366-A IPC. The Appellants and
   Jit Kakati were acquitted of all the charges framed against them. The
 D High Court reversed the acquittal and convicted the Appellants and Jit
   Kakati for offences under Section 302, 201 read with Section 34 IPC
   and sentenced them to life imprisonment after acquitting them for an
   offence under Section 376 (2) (g) read with Section 34 IPC. Jit Kakati
   was acquitted for offences under Section 366-A IPC. Aggrieved by the
   conviction under Section 302 read with 34 IPC, the Appellants have
 E filed these Appeals. It is relevant to mention here that Jit Kakati filed
   Criminal Appeal No.1305 of2014 which abated due to his death.
           2. Appellant I, 2 and Jit Kakati worked as Assistant Managers of
    Gotanga tea estate at the relevant time. Appellant No.3 was working as
    a welfare officer ofSangsua tea estate and Appellant No.4 was working
  F as the Assistant Manager of Gobindapur tea estate. Both Gotanga and
    Sangsua tea estate were under the same management. Jit Kakati and
    Anjan Kumar Sharma, the first Appellant, were living in bungalow No.17
    in Gotanga tea estate. Jit Kakati was staying in one part of the Director's
    bungalow situated in Sangsua tea estate when he was working as
  G Assistant Manager at Sangsua tea estate prior to his transfer to Gotanga
    tea estate. Even after his transfer and allotment of bungalow No. 17 in
    Gotanga tea estate, Jit Kakati was still in occupation of the Director's
    bungalow at Sangsua tea estate.
          3. Rekha Dutta was residing in a house situated near the Director's
  H bungalow at Sangsua tea estate. Jit Kakati developed intimacy with
          ANJAN KUMAR SARMA v. STATE OF ASSAM                                 995
                 [L. NAGESWARA RAO, J.]

  Rekha Dutta. On 27.12.1992 Rekha Dutta went inside the Director's           A
  bungalow of Sangsua tea estate to fetch water. Jit Kakati called her
  inside the bungalow and Rekha Dutta stayed in the bungalow for a
  considerable period of time. Sarumai Halwai (PW-1) informed Jibon
  Dutta (PW-20) the elder brother ofRekha Dutta about his sister spending
  considerable time inside the bungalow along with Jit Kakati. PW-20          B
  who was working as a Chowkidar at Sangsua tea estate at the relevant
  time sent his sister Jun Moni Dutta (PW-2) to the Director's bungalow
  to see whether Rekha Dutta was in the bungalow. PW-2 visited the
  bungalow and found that Rekha Dutta was sitting in a room along with
. Jit Kakati. On the basis of the said information, PW-20 went to the
  Director's bungalow and questioned the conduct of Jit Kakati. Jit Kakati    C
  informed PW-20 that he proposes to marry Rekha Dutta. PW-20 told
  Jit Kakati that a decision regarding the marriage can be taken only after
  consultation with his relatives. As per the prosecution version, PW-20
  sent one Ranj it Halwai to call his relatives. All the accused along with
  Rekha Dutta left the Director's bungalow of Sangsua tea estate on two       D
  motor cycles before the relatives of PW-20 reached the spot. They
  went to bungalow No.17 in the adjacent Gotanga tea estate. Rekha
  Dutta was seen at bungalow No.17 on the evening of 27.12.1992 till
  9:00 pm by Fulu Turi (PW-4) and Bhai Turi (PW-5). As the whereabouts
  of Rekha Dutta thereafter were not known to PW-20 and her other
  family members, they started making enquires on 28.12.1992. As they         E
   could not locate Rekha Dutta, PW-20 approached the officer in charge
  Pulibar Police Station, District Jorhat and submitted an ejahar (F.I.
  statement). PW-20 stated in the ejahar that Jit Kakati eloped with Rekha
  Dutta at 4:30 pm on 27.12.1992 and thereafter her whereabouts were
   not known.
                                                                              F
        4. An FIR was registered at 10:15 am on 29.12.1992. The
 Investigating Officer (PW-21) commenced his investigation by going to
 the Sangsua tea estate and started examining witnesses. At about 1:50
 pm he received information about a dead body lying on the railway track.
 He went to the railway track near Gotanga tea estate and found the
 severed pieces of a girl's dead body lying on the railway track. He          G
 conducted inquest on the body of the girl which was cut into pieces by
 the train. The body parts were found lying scattered within 40 feet area
 of the railway track. The head and left leg were not found with the
 other parts of the body. The right leg was cut into pieces from thigh to
                                                                              H
996            SUPREME COURT REPORTS                        [2017) 3 S.C.R.


A knee, the leg was almost severed but for a straf!d of skin. The left hand
  was broken but attached to the body. The left leg was missing. The
  body was identified by PW-20 to be that ofRekha Dutta, on the basis of
  the clothes that she was wearing. The Appellants and Jit Kak~ti voluntarily
  surrendered before the police. Purshanfto a disclosure statement made
  by Jlt Kakati on 31. 12.1992, a Khukri was recovered from the wardrobe
B
  of Jit Kakati at bungalow No.17, Gotanga tea estate.
             5. The post mortem on the body was conducted by Dr. Golap
      Chandra Deka (PW-11) on 30.12.1992 who opined that death was due
      to shock and coma as a result of craniocerebral injuries. The following
      injuries were found on the body of the deceased:-
 c
            ]. "A portion of the calvarium including frontal, temporal
               and parietal region is detached with one bone deep incised
               wound ofsize 10 m x 2 cm on the left side with total avulsion ·
               on the remaining sides. The detached portion of the skull
               bone was covered with skull and long black hairs. ·The
 D             cut margin of the left side of the separated skull shows
               bevelling. Blood clot present in an around the cut edges
               and beneath the scalp. The brain matter is not found in
               situ.
            2. Remaining portion of the skull with periorbital region vyith
 E             its contents are crushed just above the upper lip and up of
               nose upwards. Right ear absent, left ear only attached
               with skin.
            3. Multiple, almost parallel superficial bruises obliquely
            . placed, encircling the distal portion of both forearms., . .
 F
            4. Multiple small superficial bruises are found around both
               the well-developed breasts.          Cut section shows
               ex!ravasation of blood an<! tissu~ fluid in sub-cut.
           . 5. Multiple, small superficial.bruises on back of trunk on
                both sides. Cut section shows extravasation of blood.
 G
             6. Swelling and bruises present in an around the vulva, majora
                 and minora. Cut section shows extravasation of blood.
             7. The whole left arm is completely crushed, limb being
                attached only with crushed muscles. No evidence of any
 H              fresh bleeding.
         ANJAN KUMAR SARMA v. STATE OF ASSAM                               997
                [L. NAGESWARA RAO, J.]

      8. Left leg is completely detached from the limb below the           A
         lower part of the thigh by crush injury. Detached leg fits
         with the limb. No evidence of any fresh bleeding.

      9. The right thigh completeZv crushed and the leg is attached
         by crushed muscles. No evidence of any fresh bleeding.
                                                                           B
      10. One lacerated injury 2" x 1 W' over the right side of
         right ankle joint. No evidence of any fresh bleeding.
      11: Mit!tiple fractures of almost all the ribs on both sides of
         the chest.
      12. One lacerated injury on the lateral side of right abdominal      C
         wall mostly in the upper part 4" x 2" x 1" exposing the
         intestinal coils, ruptured stomach and right kidney. No
         evidence of any fresh bleeding."

      6. PW 11 deposed that injuries Nos. 1, 3, 4, 5 and 6 were ante
mortem. He also stated that there was evidence of sexual intercourse.      D
He further deposed that the death occurred 24 to 48 hours before the
time of post-mortem examination which was conducted at 12.00 noon
on 30.12.1992. The Sessions Judge, Jorhat framed the following charges:-
      "Firstly~ That you, on or about the 27.12.92 at Sangsua Tea
      Estate under Pulibar PS. committed gang rape on Smt. Rekha           E
      Dutta in furtherance of your common intention.
      And thereby committed an offence p1ufr:hable under Section
      376(2) (g) I 34 . the Indian
                            '
                                   Penal ICode and within (3) mv
                                                               .
      cognizance.                        '
                                           I             •
                                                                           F
      Seco~1ffly -Th.at you, _on or about t~f! same day tune and place
      committed murder of Smt. Rekha Dutla by intentionally causing
      her death and in further ofyour common intention and hereby
      co'!lmitted an offence punishable imcfei; .Section 302134 of
      the Indian Penal Code and within (4) my cognizance.
                                                                           G
      Thirdly - That you, on or about the same date, time and place
      at knowing that certain offence to (sic) murder punishable its
      death has been committed, dies cause certain evidence of the
      said offence to disappear with dead body was thrown into a

                                                                           H
998           SUPREME COURT REPORTS                        [2017] 3 S.C.R.


A          rail track with the intention of screening yourselves from legal
           punishment and hereby committed an offence punishable
           under Section 201 my cognisance. "
            7. The prosecution relied upon the following circumstances to
      prove the charges against the accused:-
B           ]. "The deceased was last seen with the accused persons in
               Bungalow No.17 on the night of27.12.1992 in the company
               of the accused persons but not seen alive thereafter
               anywhere.
            2. When the relatives of Rekha Dutta enquired about her
 c             whereabouts on the next date i.e. 01128.12.1992 the accused
               persons failed to give any definite reply.
            3. The dead body of the victim was found/ lying on the railway
               track on 29.12.1992. The said railway track passes
               through the tea garden where bungalow No.17 is situated.
D
            4. Rekha was wearing material Exhibit I (Frock) when she
               was last seen in the company of the accused persons and
               the same frock was also found on her dead body when it
               was discovered on the railway track on 29.12.1992.
            5. The surgeon (PW 11) who conducted the autopsy, while
 E
               issuing the post mortem certificate (Exhibit 4) categorical(11
               stated that death of the victim was a result of the ante
               mortem incised wound found on the skull which could be
               caused by weapon like material Exhibit 3 (Khukri).
            6. Recovery of material Exhibit 3 (Khukri) from the bungalow
 F
               of accused Dhruba Jyoti Bhuyan on the basis of disc/us11re
               statement made by accused Jit Kakati.
            7. Mark of blood stains found in the said khukri.
            8. The Investigating Officer also noticed blood stains in the
 G             bathroom of bungalow No.17.
            9. The failure of the accused persons to offer any explanqtion
               in respect of the incriminating circumstances as narrated
               above, which, according tu prosecution, can be counted
               as providing missing links for completing the chain of
 H             circumstances. ,.
         ANJAN KUMAR SARMA v. STATE OF ASSAM                                999
                [L. NAGESWARA RAO, J.)

       8. The Trial Court considered each of the circumstances in a - A
detailed manner. Regarding the last seen theoty propounded by the
prosecution, the Trial Court held that the prosecution proved through the
evidence of PW-4 and PW-5 that Rekha Dutta was seen in the company
of the accused till 9:00 pm on 27.12.1992. There is no conclusive proof
that Rekha Dutta stayed at the bungalow over night. Considering the B
medical evidence on record, the Trial Court held that the death should
have been after 12.00 noon on 28.12.1992 and there was no evidence
that the deceased was seen with the accused persons around that time.
or thereafter. According to the Trial Court the mere fact that the accused
were with the deceased till 9:00 pm on 27 .12.1992 will not by itselflead
to an irresistible inference that they committed the crime.                C
       9. The Trial Court accepted the evidence of PW 11 regarding the
ante mortem injury No. l which was caused by a sharp weapon due to
which Rekha Dutta died. The recovery of khukri pursuant to the
disclosure statement was the subject matter of strict scrutiny by the
Trial Court. It was observed that the four witnesses to the disclosure D
statement and recovery memo, PW 13, PW 14, PW 15 and PW 19
were declared hostile. There was no corroboration to the statement of
the investigating officer PW 21 either about the disclosure or seizure.
The Court also examined whether the prosecution proved that the weapon
seized was used for commission of the offence. PW 19 in whose
presence the weapon was seized deposed that there were no blood stains E
on the weapon. The report of the Forensic Science Laboratory, Guwahati
found blood stains but the origin of the blood could not be established.
There was no evidence to show that there was human blood on the
weapon. The investigating officer spoke about the detection of blood
stains in the bathroom of bungalow No.17. The blood which was F
collected was sent for chemical analysis and the report of the Serologist
revealed that the sample gave negative test for blood.
       10. The Trial Court categorically held that the prosecution was
unable to prove the charge of Section 366-A against Jit Kakati as the
deceased was in the company of Jit Kakati of her own volition. A            G
thorough examination of the entire evidence on record led the Trial Court
to hold that the charge under Section 376 (2) (g) against all the accused
was not proved. The Trial Court further held that there was no motive
on the part of the accused for committing the offence alleged against

                                                                            H
1000           SUPREME COURT REPORTS                         [2017) 3 S.C.R.


 A them. On an overall consideration the Trial Court held that the Accused
   were not guilty of the offences under Section 302, 201 read with 34 as
   well. It was further held the circumstance of the accused and deceased
   last seen together on the night of27.02.l 992 by itself is not sufficient to
   convict the Accused.
 B        11. The High Court confirmed the findings of the Trial Court
   regarding acquittal of the accused under Section 366-A and 376 (2) (g).
   The High Court found that the deceased was 24 years of age at the time
   of the offence. The High Court was conscious of the fact that the
   judgments of acquittal are not interfered with normally only because
   another view is possible. The High Court referred to the findings of the
 C Trial Court that the deceased was in the company of accused till 9:00
   pm on 27.12.1992 and the dead body was recovered at 3:00 pm on
   29.12.1992. The High Court proceeded on the basis that there was no
   inordinate delay between the time when they were last seen together
   and the recovery of the dead body. The High Court also held that it was
 D inferable that death was caused on the night of28.12. l 992 and the dead
   body was thrown on the railway track. According to the High Court,
   that will coincide with the time of death as per the post-mortem report
   which was around 12:00 noon on 28.12.1992. The High CoUii held that
   the or.us was on the accused persons to explain and exculpate themselves
   when the last seen theory was established. In the absence of any
 E satisfactory explanation the presumption would suggest the guilt of the
    accused. On the basis of the aforementioned reasoning, the High Court
    reversed the acquittal of the accused and convicted them for offences
    under Section 302, 201 read with 34 IPC and sentenced them to undergo
    imprisonment for life.
 F        12. Jit Kakati was acquitted for committing an offence under
   Section 366-A and his acquittal was confirmed by the High Court. Jit
   Kakati died during the pendency of the Criminal Appeal before this Court
   and the appeal filed by him abated. The acquittal of the Appellants
   under Section 376 (2) (g) was confirmed by the High Court which remains
 G unchallenged. The point that falls for our consideration is whether the
   conviction of the Appellants by the High Court under Section 302, 201
   read with 34 IPC is justified. The High Court was conscious of the fact
   that interference with the judgment of an acquittal by the Trial Couti is
   unwarranted except when it suffers from the vice of perversity (See:
   Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 ~ 38). There is
 H
         AN JAN KUMAR SARMA v. STATE OF ASSAM                             1001
                 [L. NAGESWARA RAO, J.]

neither a discussion nor finding recorded by the High Court about any A
perversity in the judgment of the Trial Court. The only ground on which
the High Court reversed the judgment of the Trial Court is that the
prosecution proved that the accused and the deceased were last seen
together and there was no explanation which led to the presumption of
guilt of the Accused.
                                                                          B
       13. Admittedly, this is a case of circumstantial evidence. Factors
to be taken into account in adjudication of cases of circumstantial
evidence laid down by this Court are:
      (1) The circumstances from which the conclusion of guilt is to
          be drawn should be fully established. The circumstances         c
          conce(ned 'must' or 'should' and not 'may be' established;
      (2) The facts so established should be consistent only with
         the hypothesis of the guilt of the accused, that is to say,
         they should not be explainable on any other hypothesis
         except that the accused is guilty;                          D
      (3) The circumstances should be of a conclusive nature and
         tendency;
      (4) They should exclude every possible hypothesis except the
         one to be proved; and
                                                                   E
      (5) There must be a chain of evidence so complete as not to
         leave any reasonable ground for the conclusion consistent
         with the innocence of the accused and must show that in
         all human probabili~v the act must have been done by the
         accused. (See: Sharad Birdhicltand Sarda v. State of
         Maharashtra (1984) 4 SCC 116 ~ 153; M.G. F
         Agarwal v. State of Maharashtra AIR 1963 SC 200 ~18)
       14. Mr.R.Venkataramani, learned Senior Counsel appearing for
the State of Assam, supported the judgment of the High Court. He
submitted that the deceased was seen along with the accused till 9.00
pm on 27.12.1992 and no explanation was given by them as to what           G
happened thereafter. On the next day, Akhil Bordoloi (Appellant no. 3)
misled the family members of the deceased by initially stating that the
deceased was with Jit Kakati and will return soon and changing his
version in the afternoon by saying that the deceased was not with Jit
Kakati. Mr.R.Venkataramani submitted that the incident occurred in a
                                                                          H
1002            SUPREME COURT REPORTS                         [2017] 3 S.C.R.


 A tea estate which is sparsely populated with no access to general public.
   The railway track is adjacent to the tea estate and there was no possibility
   of anybody else having committed the crime. He argued that total denial
   on the part of the accused in their examination under Section 313 Cr. PC
   is a strong circumstance against the accused.
 B            15. It is no more res integra that suspicion cannot take the place
       oflegal proof for sometimes, unconsciously it may happen to be a short
       step between moral certainty and the legal proof. At times it can be a
       case of "may be true." But there is a long mental distance between
       "may be true" and "must be true" and the same divides conjunctures
       from sure conclusions. (See: Jalrarla/ Das v. State of Orissa, (1991)
 c     3 sec 21, n)
          16. It is settled law that inferences drawn by the court have to be
   on the basis of established facts and not on conjectures. (See: Sujit
   Biswas v. State ofAssam, (2013) 12 SCC 406 ,13-18) The inference
   that was drawn by the High Court that the death was caused on
 D 28.12.1992 within the time of 48 hours as mentioned in the post mortem
   report is not correct. The post mortem examination was conducted on
   30.12.1992 at 12:00 noon and it was opined by PW-11 that the death
   occurred 24 to 48 hours prior to the time of post mortem examination.
   Even ifthe time is stretched to the maximum of 48 hours, the death was
 E after 12:00 noon on 28.12.1992. The deceased was in the company of
   the accused till 9:00 pm on 27 .12.1992. The inference drawn by the
   High Court that the accused have killed the deceased on 28.12.1992 in
   the night time and thrown the body on the railway track is not on the
   basis of any proved facts. The Trial Court is right in holding that there is
   no evidence on record to show that the deceased was with the accused
 F after 12:00 noon on 28.12.1992.

          17. The prosecution relied upon nine circumstances to prove the
   charges against all the accused. PW-11 who conducted the Autopsy
   opined that the death of the victim was due to the ante mortem incised
   wound found on the skull which could have been caused by Material
 G Exhibit 3 (khukri). We are in agreement with the Trial Court that the
   recovery of the khukri was not supported by any independent witnesses.
   The prosecution has also failed to prove that there were blood stains on
   the said khukri. The blood stains found in the bathroom of bungalow No.
   17 were sent for examination which resulted in a negative report. The
 H above circumstances not being proved would leave only two
         ANJAN KUMAR SARMA v. STATE OF ASSAM                               1003
                [L. NAGESWARA RAO, J.]

circumstances against the Accused which are that the Accused were          A
last seen together with the deceased and the absence of any explanation
forthcoming by the Accused.
       18. The circumstance oflast seen together cannot by itself form
the basis of holding the accused guilty of the offence. In Km1ltaiya Lal
v. State of Rajastltan, (2014) 4 SCC 715 this court held that:             B
      "12. The circumstance of last seen together does not by itself
      and necessarily lead tu the inference that it was the accused
      who committed the crime. There must be something more
      establishing connectivity between the accused and the crime.
      Mere nun-explanation on the part of the appellant, in our            c
      considered opinion, by itself cannot lead to proof of guilt
      against the appellant.


      15. The theOIJ' of last seen-the appellant having gone with
      the deceased in the manner noticed hereinbefore, is the D
      singular piece of circumstantial evidence available against
      him. The conviction of the appellant cannot be maintained
      merely on suspicion, however strong it may be, or on his
      conduct. These facts assume fi1rther importance on account
      of absence of proof of motive particularly when it is proved E
      that there was cordial relationship between the accused and
      the deceased for a long time. The fact situation bears great
      similarity to that in Madho Singh v. State of Rajasthan [(2010)
      15 sec 588}. ..
       In Arjun Marik v. State of Bi/tar, 1994 Supp (2) SCC 372 this
                                                                            F
court held that:
       "31. Thus the evidence that the appellant had gone to Sitaram
       in the evening of 19-7-1985 and had stayed in the night at
       the house of deceased Sitaram is vet:v shaky and inconclusive.
       Even if it is accepted that they were there it would at best
                                                                       G
       amount to be the evidence of the appellants having been seen
       last together with the deceased. But it is settled law that the
       on~v circumstance of last seen will not complete the chain of
       circumstances to record the finding that it is consistent only
       with the hypothesis of the guilt of the accused and, therefore,
       no conviction on that basis alone can be founded."              H
1004            SUPREME COURT REPORTS                          [2017] 3 S.C.R.


 A        19. This Court in Bharat v. State ofM.P., (2003) 3 SCC 106,
   held that the failure of the accused to offer any explanation in his statement
   under Section 313, Cr.P.C. alone was not sufficierit to establish the charge
   against the accused. In the facts of the present case, the High Court
   committed an error in holding that in the absence of any satisfactory
   explanation by the accused the presumption of guilt of the Accused stood
 B
   un-rebutted and thus the Appellants were liable to be convicted.
             20. Mr. R. Venkataramani relied upon Deonandan Mishra v.
       State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission
       that the circumstance of last seen together coupled with lack of any
       satisfactory explanation by the accused is a very strong circumstance
 c     on the basis of which the accused can be convicted. It was held by this
       Court in the above judgment as follows:-
             ''Jt is t1·ue that in a case of circumstantial evidence not only
             should the various links in the chain of evidence be clearly
             established, but the completed chain must be such as to rule
 D
             out a reasonable likelihood of the innocence of the accU[;r!d.
             But in a case like this where the various links as stated abcve
             have been satisfactorily made out and the circumstances p&int
             to the appellant as the probable assailant, with reasonable
             definiteness and .in proximity to the deceased as regards time
 E           and situation, and he offers no explanation, which if accepted,
             though not proved, would afJord a reasonable basis for a
             conclusion on the entire case consistent with his innocence,
             such absence of explanation or false explanation would itse!f
             be an additional link which completes the chain. We are,
             therefore, of the opinion that this is a case which satisfies the
 F
             standards requisite for conviction on the basis of
             circumstantial evidence. "
          21. It is clear from the above thal;in a case where the other links
   have been satisfactorily made out and the circumstances point to the
 G guilt of the accused, the circumstance of last seen together and absence
   of explanation would provide an additional link which completes the chain.
   In the absence of proof of other circumstances, the only cir.cumstance
   of last seen together and absence of satisfactory explanation cannot be
   made the basis of conviction. The other judgments on this point that are

 H
         ANJAN KUMAR SARMA v. STATE OF ASSAM                             1005
                [L. NAGESWARA RAO, J.]

cited by Mr. Venkataramani do not take a different view and, thus, need A
not be adverted to. He also relied upon the judgment of this Court in
State of Goa v. Sanjay Tltakran, (2007) 3 SCC 755 in support of his
submission that the circumstance oflast seen together would be a relevant
circumstance in a case where there was no possibility of any other persons '
meeting or approaching the deceased at the place of incident or before B
the commission of crime in the intervening period. It was held in the
above judgment as under:-
      "34. From the principle laid down by this Court, the
      circumstance of last seen together would normally be taken
      into consideration for finding the accused guil~v of the offence
      charged with when it is established by the prosecution that
                                                                          c
      the time gap between the point of time when the accused and
      the deceased were found together alive and when the
      deceased was found dead is so small that possibility of any
      other person being 11'ith the deceased could completely be
      n1led out. The time gap between the accused persons seen in D
      the company of the deceased and the detection of the crime
      would be a material consideration for appreciation of the
      evidence and placing reliance on it as a circumstance against
      the accused. But, in all cases, it cannot be said that the
      evidence of last seen together is to be rejected mere(v because
                                                                          E
       the time gap between the accused persons and the deceased
       last seen together and the crime coming to light is after (sic of)
       a considerable long duration. There can be no fixed or
      straitjacket formula for the duration of time gap in this regard
       and it would depend upon the evidence led by the prosecution
       to remove the possibility of any other person meeting the F
       deceased in the intervening period, that is to say, if the
      prosecution is able to lead such an evidence that likelihood
       of any person other than the accused, being the author of
       the crime, becomes impossible, then the evidence of
       circumstance of last seen together, although there is long G
       duration of time, can be considered as one of the
       circumstances in the chain of circumstances to prove the guilt
       against such accused persons. Hence, if the prosecution
       proves that in the light of the facts and circumstances of the
        case, there was no possibiliry of any other person meeting or
                                                                          H
1006                SUPREME COURT REPORTS                    [2017] 3 S.C.R.


 A            approaching the deceased at the place of incident or before
              the commission of the crime. in the .'ntervening period, the
              proof of last seen together would be relevant evidence. For
              instance, if it can be demonstrated by s.1owing that the accused
              persons were in exclusive possession of the place where the
              incident occurred or where they were last seen together with
 B
              the deceased, and there was no possibility of any intrusion to
              that place by any third party, then a rdative~v wider time gap
              would not affect the prosecution cast. "
           As we have held that the other circumstances relied upon by the
    prosecution are not proved and that the circumstances of last seen
 C together along with the absence of satisfactory explanation ate not
    sufficient for convicting the accused. Therefore the findings recorded
  . in the above judgment are not applicable to the facts of this case.
          22. Due to the lack of chain of circlims)ances which lead to the
   only hypothesis of guilt against the accused, we set aside the judgment
 D of the High Court and acquit the Appellants of the charges of Section
   302, 20 I read with 34 IPC. The Appellants ,are directed to be .;et at
   liberty forthwith, if not required in any other c~se.
              23. The Appeal is accordingly allowed. ~

 E
       Nidhi Jain                                                Appeal allowed.