KIRITI PALversusSTATE OF WEST BENGAL

                       [2015] 4 S.C.R. 726


A                           KIRITI PAL

                                 V.

                   STATE OF WEST BENGAL
B                (Criminal Appeal No. 50 of 2014)

                         APRIL 16, 2015

            [T.S. THAKUR AND R. BANUMATHI, JJ.]
c      Penal Code, 1860: ss.30211208- Conviction based on
  circumstantial evidence -A-1 became acquainted with the
  victim-deceased, a widow and developed intimacy with her
  - On fateful day, deceased wen! out with A-1 to attend a
  function at a school and next day she was found dead - Trial
0
  court convicted A-1 to A-3 u/ss.302!120-B/376(2)(g) and
  passed death sentence and convicted A-4 u/s. 1208 and
  sentenced him to life imprisonment - High Court upheld
  conviction uls.302 and set aside the conviction u/s.376(2)(g)
E and modified death sentence to life imprisonment - On
  appeal, Held: The time when the deceased was with A-1 and
  was found dead was so proximate which pointed to the guilt
  of A-1 - A-1 failed to explain the circumstances in which he
  parted the company of the deceased which was strong
F militating circumstance against A-1 - The subsequent
  conduct of A-1 threatening A-4 and PW-7 was also a relevant
  circumstance - The recovery of crime weapon at the
  instance of A-1 was yet another incriminating circumstance
  in the chain which led to the conclusion pointing to the guilt
G of A-1 -As regards A-2 and A-3, there was no evidence to
  prove as to how A-2 and A-3 had gone to the place of
  occuffence and what was their subsequent conduct - Apart
  from the extract of the call records, no other evidence was

H                              726
        KIRITI PAL v. STATE OF WEST BENGAL                  727


adduced by the prosecution to establish the conspiracy - A
No evidence was adduced by the prosecution to
substantiate the recovery of objects and the seizure list for
implicating A-2 and A-3 - Likewise, apart from telephone
calls, no other evidence was adduced by prosecution to
bring home guilt of A-4 - Conviction of A-1 is upheld while B
A"2 to A-4 are acquitted.

    Dismissing the appeal of first appellant and allowing
the appeals of appellant 2 to 4, the Court
                                                             c
     HELD: 1.1 From the evidence of PWs 6, 7 and 10,
prosecution established that the victim-deceased was
last seen alive in the company of A-1 on the fateful
evening and that at about 10.00/10.30 p.m., A-1 came
alone. The theory of "last seen alive" comes into play       o
when the time gap between the way the accused and
the deceased were last seen together and the deceased
was found dead was so small, the possibility of any
other person committing the murder becomes
impossible. On the next day morning, body of deceased        E
was found in jungle an isolated place 25 k.m. away from
her residence. The time when the deceased left with A-
1 and the time she was found dead was so proximate
which pointed to the guilt of A-1. Having regard to the
time gap being small, it is for A-1 to explain the           F
circumstances how and where and in what manner he
parted company with the deceased. A-1 having failed to
discharge the onus under Section 106 of the Evidence
Act and offer any explanation as to how, as to when and
how and in what manner he parted the company of the          G
deceased, is a strong militating circumstance against A-
1 It came out from the testimony of PW6 that on the
fateful evening, the deceased left her home stating to
PW6 that she is going to Rajnagar to attend the function     H
728         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A of the school. The fact that there was no function
  scheduled to be held at Rajnagar High School was yet
  another incriminating circumstance against A-1.The
  subsequent conduct of A-1 threatening A-4 and PW7
  was a relevant circumstance as such conduct of
B accused indicated his nexus with the offence. The
  recovery of crime weapon at the instance of A-1 was yet
  another incriminating circumstance in the chain which
  led to the conclusion pointing to the guilt of A-1. [Paras
C 14 to 18] [739-E-H; 740-B, 741-G-H, 742-C, 743-B]

           1.2. It is true that motive is an important factor in
      cases where the conviction is based on circumstantial
      evidence but that does not mean in all cases of
      circumstantial evidence if prosecution is unable to prove
D     the motive satisfactorily, the prosecution must fail. In
      this case, of course, prosecution has not adduced
      evidence as to what was the motive for committing
      murder of the deceased. Mere fact that the prosecution
      has failed to translate the mental disposition of the
 E    accused into evidence, that does not mean that no
      such mental condition existed in the mind of the
      accused. The circumstances relied upon by the
      prosecution against A-1 were well established by the
 F    prosecution. Upon appreciation of evidence, the courts
      below rightly held that the incriminating circumstances
      against A-1 are firmly established and form a complete
      chain pointing to the guilt of the accused and were
      consistent with the hypothesis of the guilt of the first
G     appellant. There is no substantial ground to interfere
      with the conviction of A-1 under Section 302 IPC. [Paras
      21, 22] [743-G-H; 744-A-B, G-H; 745-A]

      Vivek Kalra vs. State of Rajasthan (2014) 12 SCC 439:
H 2013 (1) SCR 1079 - relied on.
         KIRITI PAL v. STATE OF WEST BENGAL                  729


     2.1 There was no evidence to prove as to how A-2         A
and A-3 had gone to the place of occurrence and what
was their subsequent conduct. Their presence near the
scene of occurrence could have been established by
the prosecution either by examining some witnesses
near and around the place of occurrence or by proving         B
the location of the calls so as to establish the proximity
of the accused with the scene of occurrence. Apart from
the extract of the call records, no other evidence was
adduced by the prosecution to establish the conspiracy.
Apart from telephonic conversation, prosecution also          C
relied upon recoveries made pursuant to the
confessional statement of A-2 and A-3. Pursuant to the
statement of A-2, certain recoveries were made which
were sought to be proved by examination of PW17.
                                                              0
PW17 was then employed in the hotel which was owned
by the deceased. In his evidence PW17 stated that in
January 2009, two or three gentlemen came to his hotel
and took his signature and that he did not know why
his signatures were being taken. Though PW17                  E
identified his signatures in the seizure list, evidence of
PW17 no way established recoveries being made at the
instance of A-2 and A-3. Evidence of PW17 is far from
convincing and is not of much assistance to the
prosecution as he has not clearly spoken about the            F
recoveries and the seizure list. The gold ring and silver
made chain recovered were also not shown to the other
witnesses for being identified as that of the deceased.
No other evidence was adduced by the prosecution to
substantiate the recovery of objects and the seizure list     G
[Paras 23, 25 and 26) [746-E-H; 747-B-E]

   2.2 So far as the complicity of A-4, the prosecution
mainly relied upon the call record and his judicial
confession recorded by Magistrate. Prosecution relied         H
730         SUPREME COURT REPORTS                [2015] 4 S.C.R.


A upon the recovery a notebook seized from the
  possession of A-4 where she has written A-1 's phone
  number clandestinely coded as 'Dadu'. Ext. 30 call
  records of A-1 phone also revealed that there were
  number of calls from A-1 to A-4. Like in the case of A-2
B and A-3 apart from telephone calls, no other evidence
  was adduced by the prosecution to bring home the guilt
  of A-4. Insofar as the judicial confessional statement
  recorded under Section 164 Cr.P.C., it is not an
  inculpatory statement; but it is only to the effect of
C showing the subsequent conduct of A-1 in threatening
  A-4 not to disclose anything to the police. Neither the
  telephone calls between A-1 and A-4 nor her
  confessional statement by themselves would be
  sufficient to establish the guilt of A-4. [Para 27] [7 47-F-
D H; 748-A-C]

          2.3. In a case based on circumstantial evidence, the
      court must adopt a very conscious approach and
      should record conviction only if all the links in the chain
E     are complete pointing to the guilt of the accused. All the
      links forming complete chain must be firmly established
      by the prosecution. Each link taken separately may just
      suggest suspicion but such suspicion itself may not
      take the place of proof and not sufficient to convict the
F     accused. All the circumstances must be firmly
      established and must be consistent only with the
      hypothesis of the guilt. But that is not to say that the
      prosecution must meet each and every hypothesis put
      forward by the accused however farfetched it may be.
G     As discussed earlier, the telephonic calls and the
      recovery may raise suspicion against the accused but
      mere suspicion itself cannot take the place of proof. The
      evidence adduced by the prosecution against A-2 and
      A-3 did not form a complete chain connecting the
H     accused with the crime and the conviction of the
        KIRITI PAL v. STATE OF WEST BENGAL             731


appellants under Section 302 IPC read with Section A
1208 IPC cannot be sustained and deserves to be set
aside. Likewise, conviction of A-4 under Section 1208
cannot be sustained and is liable to be set aside. [Para
28) [748-D-G]
                                                         B
     State of U.P. vs. Satish (2005) 3 SCC 114: 2005 (2)
SCR 1132; State of Rajasthan vs. Kashi Ram (2006) 12
SCC 254: 2006 (8 ) Suppl. SCR 501 - relied on.

    Geejaganda Somaiah v. State of Kamataka (2007) 9 c
SCC 315: 2007 (3) SCR 899;Swamy Shraddananda @
Murali Manohar Mishra v. State of Kamatka (2007) 12 SCC
288: 2007 (7) SCR 616; Gagan Kanojia And Anr. v. State
of Punjab (2006) 13 SCC 516;Mohd. Mannan @Abdul
Mannan vs. State of Bihar (2011) 5 SCC 317 : 2011 (5) SCR D
518; Inspector of Police, Tamil Nadu v. John David (2011)
5 SCC 509: 2011 (7) SCR 354 - referred to.

                   Case law reference

  2007 (3) SCR 899           referred to.   Para 7       E

  2007 (7) SCR 616           referred to.   Para 7

  (2006) 13 sec 516          referred to.   Para 7
                                                         F
  2011 (5) SCR 518           referred to.   Para 7

  2011 (7) SCR 354           referred to.   Para 7

  2005 (2) SCR 1132          relied on.     Para 15
                                                         G
  2006 (8) Suppl. SCR 501 relied on.        Para 21

  2013 (1) SCR 1070          relied on.     Para 21

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 50 of 2014 etc.                                      H
732         SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A         From the Judgment and Order dated 20.06.2012 of the
      High Court at Calcutta in C. R. A. No. 471 of 2011.

                                  WITH

          Crl. A Nos. 1725 of 2014 and 1841 of 2012.
B
         E. R. Sumathy (AC.), Sunil Kumar Jain, Parmatma Jain,
      Kaushik Chaudhary, Pawanshree Agrawal for the Appellant.

         Chanchal Kumar Ganguli, Kabir Shankar Bose,
C     Narmada, Saakaar Sardana, Anip Sachthey for the
      Respondent.

           The Judgment of the Court was delivered by

          R. BANUMATHI, J. 1. These appeals by way of special
0
      leave arise out of the judgment dated 20.6.2012 passed by
      the High Court of Calcutta in Death Reference No. 3/2011 and
      Criminal Appeals No.471/2011 and 484/2011 confirming the
      conviction under Section 302/120 B IPC and modifying the
E     death sentence as that of life imprisonment and further
      confirming the conviction and sentence imposed on the
      appellants-accused under Section 25(i)(a) (b) of the Arms Act.

      2. Briefly stated, case of the prosecution is that
F deceased Anjali Goswami was married to one Karuna Sindhu
  Goswami. Her husband used to run a line hotel at Mohd.
  Bazar and he died in a road accident in the year 2000. Her
  daughter committed suicide in the year 2006 and son also
  died in a road accident in the year 2008. Anjali started looking
G after the business of line hotel of her husband but
  subsequently leased out the same to PW14-Bhagyadhar
  Dhibar and started a beauty parlour and a cloth shop at Mohd.
  Bazar which she subsequently shifted to Suri in a rented
  accommodation of PW10-Manash Chakraborty. Fourth
H appellant-accused Durga Sutradhar was engaged by Anjali
         KIRITI PAL v. STATE OF WEST BENGAL                   733
                   [R. BANUMATHI, J.)

to run her beauty parlour. Anjali purchased a house at A
Nutanpally, Suri and started residing there. While so residing,
first accused Kiriti Pal became acquainted with Anajli and
developed friendship and intimacy and frequently used to visit
Anjali's residence.
                                                                 B
      3. On the fateful day of 11.11.2008, deceased-Anjali
saying that she has to attend a function at Rajnagar went out
with first accused on his motor cycle and on the following day
i.e. 12.11.2008, she was found dead. On the basis of
compla·int lodged by PW1-Swapan Monda! on 12.11.2008, C
around 9.45 a.m. a case was registered at Sadaipur P.S.
Case No.74/2008 under Section 302 IPC on the death of
unknown female lying in a jungle locally called as Babuibona
Jungle 25 kms away from Anjali's house. Her neck was tied
with one end of saree she was wearing and the other end of D
the saree was tied with tree (Sonajahuri) suggesting that the
death was homicide. PW37- Santosh Kumar Ghosh, Sub
Inspector of Police, who registered the F.l.R. had taken up the
initial investigation. PW37 inspected the spot and arranged
for photographs and made seizure and recovered material E
articles from the spot where the dead body was lying. Dead
body was identified as that of Anjali Goswami by PW8-
Arunasish Goswami, nephew of the deceased. PW37
conducted inquest and sent the dead body for post-mortem F
examination. PW29 Dr. Debasis Sarkar conducted autopsy
on the body of Anjali and found lacerated wounds over parietal
area and left frontal area and other injuries on the body of the
deceased and issued ext.27 post-mortem certificate opining
that the injuries were ante-mortem in nature and were G
sufficient to cause death in the ordinary course of nature.
PW29 also opined that injury found in the labia minora could
be caused by forcible sexual intercourse on a woman.

    4. PW38 Ardhendu Sekhar Pahari, Inspector CID taken         H
734       SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A up the matter and conducted further investigation. First
  accused Kiriti Pal was arrested on 15.1.2009 and based on
  his confessional statement, he seized Hero Honda motor
  cycle black colour bearing No. WB-540/8148 and other
  objects. Based on his statement, A-4 Durga Sutradhar was
B also arrested on 15.1.2009. Based on his confessional
  statement, second accused Siddique Mia and third accused
  Mustaque Mia were arrested on 16.1.2009. Pursuant to the
  statement of Siddiquie Mia PW38 seized one lVS Fiero red
  colour motor cycle bearing No. WB-54B/8245 with its key and
C mobile nokia handset marked as seizure list Ext/17 /3.
  Pursuant to statement of A-2, A3 Mustaque Mia led to the
  recovery of one nokia mobile handset, one gold finger ring
  with inscription of letters 'Anjali', one silver made chain with
  one amethyst and red coral fitted with it were seized under
0
  Ext.18/3. During the course of investigation, PW38 collected
  the calf details of the accused and also the phone of Saraswati
  Pal wife of Kiriti Pal-first accused. Investigation revealed that
  the murder was a result of conspiracy between all the four
E accused. After completion of investigation, charge sheet was
  filed against three accused, A 1 to A3 under Section 302/
  120B/34/376(2)(g) IPC and Sections 25, 27, 35 of the Arms
  Act. Fourth accused Durga Sutradhar was charged under
  Section 120B read with Section 302 IPC.
F
       5. The accused were committed to the sessions court
  where the charges were framed against the accused and the
  appellants-accused pleaded not guilty. To bring home the guilt
  of the accused, the prosecution has examined 38 witnesses
G and exhibited number of documents and material objects.
  Upon appreciation of evidence, the learned Sessions Court
  vide its judgment dated 26.7.2011 and 29.7.2011 convicted
  the appellants A 1 to A3 for offences under Section 302 IPC
  and sentenced them to death. Appellants A 1 to A3 were also
H convicted for the offence under Section 376(2)(g) IPC and
         KIRITI PAL v. STATE OF WEST BENGAL                 735
                   [R. BANUMATHI, J.]

each of them were sentenced to undergo life imprisonment A
with fine of Rs.5,000/- each with default clause. For conviction
under Section 1208-criminal conspiracy to commit the
murder, all the appellants-accused were sentenced to
imprisonment for life with fine of Rs.5,000/-each with default
clause. For the conviction under Section 25(1 )(a)(b) of the B
Arms Act, appellants 1 to 3 were sentenced to undergo
imprisonment for three years and to pay a fine of Rs.5,000/-
each with default clause.

     6. For confirmation of death sentence imposed on the C
appellants 1 to 3, State preferred Death Reference No.3/2011
before the Calcutta High Court. Assailing the correctness of
their conviction and sentence, accused 1 to 3 preferred
criminal appeal 471/2011 and fourth accused preferred
criminal appeal 484/2011. The High Court partly allowed the D
appeal by setting aside the conviction under Section
376(2)(g) IPC and for the conviction under Section 302 IPC
modified the sentence of death to life imprisonment. High
Court confirmed the conviction of fourth accused Durga
Sutradhar under Section 1208 IPC and sentence of life E
imprisonment imposed on her. In these appeals, the
appellants-accused 1 to 4 assail the correctness of the
impugned judgment of the High Court.

    Involvement of A-1 and his conviction:                    F

     7. As against Kiriti Pal (A-1) prosecution case is that he
hatched criminal conspiracy along with Siddique Mia (A-2),
Mustaque Mia (A-3) and Durga Sutradhar (A-4) to commit the
murder of deceased-Anjali Goswami. Prosecution case is G
based on circumstantial evidence. It is well-settled that in
cases where the evidence is purely circumstantial in nature,
the circumstances from which the conclusion of guilt is sought
to be drawn must be fully establish~d beyond any reasonable
doubt and such circumstances must be consistent and must H
736         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     form a complete chain unerringly point to the guilt of the
      accused and the chain of circumstances must be established
      by the prosecution. Referring to several earlier decisions of
      this Court in Geejaganda Somaiah vs. State of Karnataka,
      (2007) 9 sec 315 para 15 it was held as follows:-
B
            "15. Sir Alfred Wills in his admirable book Wills'
           Circumstantial Evidence (Chapter VI) lays down the
           following rules specially to be observed in the case of
           circumstantial e-:tidence: (1) the facts alleged as the
c          basis of any legal inference must be clearly proved and
           beyond reasonable doubt connected with the factum
           probandum; (2) the burden of proof is always on the
           party who asserts the existence of any fact, which infers
           legal accountability; (3) in all cases, whether of direct or
D          circumstantial evidence the best evidence must be
           adduced which the nature of the case admits; (4) in
           order to justify the inference of guilt, the inculpatory facts
           must be incompatible with the innocence of the accused
           and incapable of explanation, upon any other reasonable
 E         hypothesis than that of his guilt; and (5) if there be any
           reasonable doubt of the guilt of the accused, he is
           entitled as of right to be acquitted."

          Same principle was reiterated in Swamy Shraddananda
 F    @ Murali Manohar Mishra vs. State of Karnatka (2007) 12
      SCC 288; Gagan Kanojia And Anr. vs. State of Punjab, (
      2006) 13 sec 516, Mohd. Mannan@ Abdul Mannan VS.
      State ofBihar(2011) 5 SCC 317; Inspector of Police, Tamil
      Nadu vs. John David, (2011) 5 sec 509 and other cases.
G
           8. As against Kiriti Pal, prosecution relied upon the
      following incriminating circumstances:
           (i) that Kiriti Pal had intimacy with Anjali Goswami;
H           (ii) deceased Anjali Goswami was last seen alive in the
          KIRITI PAL v. STATE OF WEST BENGAL                         737
                    [R. BANUMATHI, J.]

      company of Kiriti Pal (A-1);                                    A

       (iii) there was no satisfactory explanation by the
      accused as to the death of Anjali Goswami;

       (iv) subsequent conduct of Kiriti Pal (A-1) and
                                                                      B
      (v) recovery at the instance of first appellant.

     It is to be seen that whether the above circumstances
from which conclusion of guilt is sought to be drawn are fully
established and whether the circumstances form a complete C
chain pointing to the guilt of the accused and whether the
circumstances are consistent with the hypothesis of guilt of
the accused.

     9. After death of her husband Karuna Sindhu Goswami,             o
Anjali was running her husband's line hotel in Mohd. Bazar
and later she leased out the same to PW 14- Bhagyadhar
Dhibar. After death of her daughter and son, Anjali shifted her
residence to Suri and started running a beauty parlour in a
rented premises owned by PW 10- Manash Chakraborty. It                E
is brought in evidence that Anjali was looking beautiful and
was interested in acting and she was mixing up with people
for getting chances in the film. Anjali purchased a house at
Nutanpally, Suri and was residing in the first floor. Ground floor
of her house was let out to couple PWs 6 and 7 Anju Majhi             F
and Biren Majhi.

      10. A-1 Kiriti Pal himself a married man posing himself
to be a teacher in a school and bachelor developed friendship
and intimacy with Anjali. Deceased-Anjali trusted A-1 Kiriti Pal G
and allowed him to pass nights at her residence at Nutanpally,
Suri. In her cross-examination, PW6 has stated that she saw
first accused Kiriti Pal in the room of Anjali several times.
During his questioning under Section 313 Cr.P.C., A-1 Kiriti
Pal had also admitted his friendship and close intimacy with H
738       SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A Anjali. PW3-Tarun Mukherjee, brother-in-law of Anjali and
  Anjali's tenant PWs 6 and 7 (Anju Majhi and Biren Majhi) had
  spoken about the intimacy between Anjali and the first
  accused Kiriti Pal. It is pertinent to note that PW11-Asit Dey
  stated that there was no teacher named Kiriti Pal in their
B school at any time.

       11. Smt. Chameli Banerjee (PW-9) who is. the sister of
  Anjali had stated that few days prior to the date of incident,
  Anjali expressed her desire to stay at Katwa, residence of
C PW-9. As per the evidence of PW 3, on 7.11.2008 Anjali had
  dropped her mother Pratima Chatterjee at Shibloon for going
  to her maternal uncle's house and thereafter she had gone
  to Katwa to her sister's house. As per the evidence of PW9
  on the evening of 7.11.2008 Anjali received a telephonic call
D after which Anjali became restless. On being asked by PW
  9, Anjali replied that she has to attend a cultural programme
  at Rajnagar High School and that is why she had leave from
  the residence of PW9 at dawn. PW3-Tarun Mukherjee had
  also corroborated the said aspect of testimony of PW9.
E
       12. On the fateful evening of 11.11.2008, Anjali came in
  the motor cycle of A-1 Kiriti Pal from her beauty parlour. She
  went to the room of her house and called PW6 Anju Majhi to
  help her "wearing saree by holding its kuchi" and thereafter
F wearing some gold ornaments, Anjali went with A-1 Kiriti Pal
  on his motor cycle. PW6 Anju Majhi tenant in the ground floor
  had spoken about deceased-Anjali wearing saree, leaving the
  house with A-1 in his motor cycle. In her evidence, PW6
  stated that she asked Anja Ii where she is going and that Anjali
G told her that she is going to Rajnagar for attending the function
  of Prosenjit and Chiranjib. When PW6 asked Anjali about the
  time of her return, Anjali replied saying that she will come back
  at night around 9.00-9.30 p.m. PW6 stated thatAnjali did not
H come back till 10.00-10.30 p.m. On hearing the horn of motor
           KIRITI PAL v. STATE OF WEST BENGAL                         739
                     [R. BANUMATHI, J.]

 cycle, she opened the main gate and she saw only A-1 Kiriti A
 Pal. PW6 further stated that first appellant Kiriti Pal asked her
 as to whether key of Anjali's room is with PW6 and PW6
 answered in negative. PW 6 asked first appellant Kiriti Pal
 about Anjali and he told her that "Didi is making a gossip with
 one person. He will take her later" and by saying so first B
 appellant Kiriti Pal left the place.

       13. Anjali was last seen in the company of firsil appellant
  is also spoken by PW10- Manas Chakraborty who deposed
. that on 11.11.2008 at about 5.35 p.m. when he was entering           C
  into his house from office, Anjali was found sitting on the
  verandah of the first floor and PW 10 asked her to give rent.
  After going inside his house, PW10 while taking tea on the
  verandah, Anjali was getting down from the beauty parlour and
  again PW10-Manash Chakraborty asked Anja Ii for rent and             D
  Anjali showing her hand stated that 'she was coming'. PW10
  stated that he saw Anjali going as the pillion rider in the motor
  cycle and that the motor cyclist was a man aged 50 years who
  was of medium physique, scanty hair on his head.
                                                                       E
       14. From the evidence of PWs 6, 7 and 10, prosecution
 has thus established that Anjali was last seen alive in the
 company of first appellant Kiriti Pal on the evening of
 11.11.2008 and that at about 10.00/10.30 p.m., first appellant
 Kiriti Pal came alone. The theory of "last seen alive" comes F
 into play when the time gap between the way the accused and
 the deceased were last seen together and the deceased was
 found dead was so small, the possibility of any other person
 committing the murder becomes impossible. On the next day
 morning at about 9.30 a.m., body of deceased Anjali was G
 found in Babuibona jungle an isolated place which is 25 k.m.
 away from her residence. The place where the dead body was
 found was connected with Rajnagar - Suri Road. The time
 when Anjali left with first appellant-Kiriti Pal and the time she H
740          SUPREME COURT REPORTS                      [2015] 4 S.C.R.


A     was found dead is so proximate which, in our view, points to
      the guilt of the first appellant.

            15. Having regard to the time gap being small, it is for
      the first appellant to explain the circumstances how and where
B     and in what manner he parted company with Anjali. Thus, on
      the principle that the person who is last found in the company
      of another is dead or missing, the person with whom he was
      last found alive has to explain the circumstances in which he
      parted the company as pointed out by the trial court and the
C     High Court, first appellant has failed to discharge the onus and
      failed to offer any explanation as to how, as to when and how
      and in what manner he parted the company of Anjali, is a
      strong militating circumstance against the first appellant-Kiriti
      Pal. There is force in the submission of the learned counsel
D     for the State that the first appellant-Kiriti Pal failed to offer any
      explanation, it must be held that he failed to discharge the
      burden cast upon him by Section 106 of the Evidence Act. In
      the case of State of UP vs. Satish (2005) 3 SCC 114, this
      Court had stated the last seen theory comes into play where
E     the time-gap between the point of time when the accused and
      the deceased were last seen alive and when the deceased
      is found dead is so small that possibility of any person other
      than the accused being the author of the crime becomes
F     impossible. In State of Rajasthan vs. Kashi Ram, (2006) 12
      SCC 254, in paragraph 23, this Court has held as under:-

            "It is not necessary to multiply with authorities. The
            principle is well settled. The provisions of Section 106
            of the Evidence Act itself are unambiguous and
G           categoric in laying down that when any fact is especially
            within the knowledge of a person, the burden of proving
            that fact is upon him. Thus, if a person is last seen with
            the deceased, he must offer an explanation as to how
            and when he parted company. He must furnish an
H
                                         I

          KIRITI PAL v. STATE OF WEST BENGAL                        741
                    [R. BANUMATHI, J.]

      explanation which appears to the court to be probable A
      and satisfactory. If he does so he must be held to have
      discharged his burden. If he fails to offer an explanation
      on the basis of facts within his special knowledge, he
      fails to discharge the burden cast upon him by Section
      106 of the Evidence Act. In a case resting on B
      circumstantial evidence if the accused fails to offer a
      reasonable explanation in discharge of the burden
      placed on him, that itself provides an additional link in
    · the chain of circumstances proved against him. Section
      106 does not shift the burden of proof in a criminal trial, C
      which is always upon the prosecution. It lays down the
      rule that when the accused does not throw any light upon
      facts which are specially within his knowledge and which
      could not support any theory or hypothesis compatible
                                                                  0
      with his innocence, the court can consider his failure to
      adduce any explanation, as an additional link which
      completes the chain. The principle has been succinctly
      stated in Naina Mohd., Re. (AIR 1960 Mad 218.)"

     Taking into consideration the case of prosecution in its        E
entirety and keeping in mind the circumstances precedes and
follow the point of having so last seen, "the last seen theory''.
in our view, is a strong incriminating circumstance in the chain
of circumstances that would point to the guilt of the first          F
appellant with some certainty.

     16. It has come out from the testimony of PVV6 that on
the fateful evening of 11.11.2008, Anjali left her home stating
to PW6 that she is going to Rajnagar to attend the function
of Prosenjit and Chiranjib. PW11-Asit Dey is the principle of G
Rajnagar High School who has deposed that no function was
scheduled to be held on 11.11.2008 in the school ground
either of Prosenjit or Chiranjib or of any other film artist. The
fact that there was no function scheduled to be held at H
742         SUPREME COURT REPORTS                    (2015] 4 S.C.R.


A     Rajnagar High School is yet another incriminating
      circumstance against the first accused.

       17. PW 38 Inspector Ardhendu Sekhar Pahari of CID has
  stated that first appellant Kiriti Pal called the fourth appellant
B Durga Sutradhar on 26.12.2008 at 07.47:50 hrs. from his
  mobile 9232589186 and threatened her not to disclose the
  facts regarding murder of Anjali to CID police. PW? Biren
  Majhi had also spoken about such threat from first appellant
  threatening PW? not to disclose anything to police and asking
C PW? to vacate the premises. The subsequent conduct of first
  appellant threatening 4th appellant-accused Durga Sutradhar
  and PW7-Biren Majhi is a relevant circumstance as such
  conduct of accused indicates his nexus with the offence.

D           18. After the arrest of first three accused, and on their
       statement one improvised country made single shatter pipe
       gun measuring about 1O" (approx) having barrel, trigger, firing
       pin and iron butt was recovered. In the seizure Mahazar Exs
      23/4 and 23/2, it is stated that "From the butt it seems that
E     the wooden portion has been detached". From between the
       rocks on the bank of Chandra-Bhaga river just beneath the
       Chandra Bhaga river bridge near Saluka village under
       Rajnagar Police Station, Distt. Birbhum were recovered. As
       per seizure list Ext.25/2, on 28.1.2009 PW38 recovered one
F     blood stained part of wooden butt which seems to be a part
      of wooden butt of a shotgun, measuring about 8 cm (approx)
      with a screw hole in the middle; one blood stained part of a
      wooden butt which seems to be a part of a wooden butt of a
      shotgun measuring 8 cm (approx) fixed with a iron screw in
G     the middle measuring about 2.5 cm (approx.) from Babuibona
      jungle under K3ramkal Mouza. PW22 Khalil and PW38
      Ardhendu Sekhar Pahari, investigating officer have spoken
      about the recovery. PW29 Dr. D. Sarkar who conducted the
H     post-mortem examination over the dead body of Anjali
         KIRITI PAL v. STATE OF WEST BENGAL                     743
                   [R. BANUMATHI, J.]

Goswami stated that injury No.6 could have been caused by A
a hard blunt substance and it could also be caused by striking
with the butt of a short firearm. The recovery at the instance ·
of first appellant-accused is yet another incriminating
circumstance in the chain which leads to the conclusion
pointing to the guilt of the first appellant.                    B

     19. Wooden butts recovered on 28.1.2009 were sent to
the Forensic Science Laboratory. On the seized wooden
butts, blood was detected; but the same was insufficient for
serological test (Ext.56). Detection of blood on the seized C
wooden butts cannot be discarded on the ground that it was
insufficient for serological test. There is no legal proposition,
the detection of blood is unworthy of acceptance merely
because it was insufficient for serological test and the case
of the prosecution cannot be doubted on that score.               D

     20. Statement of A-4 Durga Sutradhar recorded under
Section 164 Cr.P.C. is yet another incriminating circumstance
against A-1 Kiriti Pal. A-4 Durga Sutradhar has stated that
A-1 Kiriti Pal called her over telephone and threatened her      E
not to disclose anything to police is a strong militating
circumstance againstA-1 Kiriti Pal pointing to his guilt.

     21. Learned counsel fot the first appellant contended that
no motive is attributed to the accused and merely because F
the first appellant had developed friendship and intimacy with
Anjali Goswami, in the absence of any motive attributed, the
courts below erred in convicting the first appellant. It is true
that motive is an important factor in cases where the
conviction is based on circumstantial evidence but that does G
not mean in all cases of circumstantial evidence if prosecution
is unable to prove the motive satisfactorily, the prosecution
must fail. In this case, of course, prosecution has not adduced
evidence as to what was the motive for committing murder
of Anjali. But it is a matter of common knowledge that H
744         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     murders have been committed without any pro-eminent
      motive. It is well established that the mere fact that the
      prosecution has failed to translate the mental disposition of
      the accused into evidence, that does not mean that no such
      mental condition existed in the mind of the accused. Same
B     view was reiterated in Vivek Katra vs. State of Rajasthan,
      (2014) 12 sec 439, it was observed thus:-

           "17 ... where prosecution relies on circumstantial
           evidence only, motive is a relevant fact and can be taken
c          into consideration under Section 8 of the Indian
           Evidence Act, 1872 but where the chain of other
           circumstances establishes beyond reasonable doubt
           that it is the accused and the accused alone who has
           committed the offence, and this is one such case, the
D          Court cannot hold that in the absence of motive of the
           accused being established by the prosecution, the
           accused cannot be held guilty of the offence. In Ujjagar
           Singh vs. State of Punjab (2007) 13 SCC 90, this Court
           observed: (SCC P.99 para 17)
E
           "17 ..... It is true that in a case relating to circumstantial
           evidence motive does assume great importance but to
           say that the absence of motive would dislodge the entire
           prosecution story is perhaps giving this one factor an
F          importance which is not due and (to use the cliche) the
           motive is in the mind of the accused and can seldom
           be fathomed with any degree of accuracy.""

      22. The circumstances relied upon by the prosecution
G against the first appellant Kiriti Pal are well established by the
  prosecution. Upon appreciation of evidence, the trial court and
  the High Court rightly held that the incriminating circumstances
  against the first appellant Kiriti Pal are firmly established and
  form a complete chain pointing to the guilt of the accused and
H are consistent with the hypothesis of the guilt of the first
         KIRITI PAL v. STATE OF WEST BENGAL                       745
                   [R. BANUMATHI, J.]

appellant. We find no substantial ground to interfere with the     A
conviction of the first appellant Kiriti Pal under Section 302
IPC. Insofar as the charge of rape is concerned, we agree
with the view of the High Court that there is no positive
evidence for sustaining the conviction under Section 376(2)(g)
IPC. The conviction of the first appellant Kiriti Pal under        B
Section 25(i)(a) (b) of Arms Act and the sentence imposed
on him is confirmed.

    Involvement of A-2, A-3 and A-4 and their conviction.
                                                                   c
     23. For conviction of appellants A-2, A-3 and A-4, courts
below relied upon two circumstances:- (i) that soon before the
time of incident and after the incident all the accused were in
contact with each other on the phone calls and thus had
conspired in perpetrating the crime; (ii) recovery of              o
incriminating articles from appellants 2 and 3.

     24. To arrive at a conclusion that the accused-appellants
have conspired together to commit the offence, courts below
mainly relied upon the phone calls details. Ext.30 is the call E
record of mobile No.9232589186 of Kiriti Pal which shows
that Kiriti Pal made 41 calls to A4 Durga Sutradhar from
7.12.2008 to 15.1.2009. Ext.31 is the call record of Siddique
Mia. Ext. 31 indicates that 144 calls were made from the
mobile phone of Mustaque Mia to Siddique Mia. Some of the F
calls were incoming calls from the mobile of Siddique Mia to
Mustaque Mia. Ext.31 indicates that there was telephonic
conversation between the accused Musatque Mia and
accused Siddique Mia. Ext.32 shows that Kiriti Pal gave 7
calls to Anjali's mobile from 11.7.2008 to 9.11.2008.          G

     Ext.34 shows Saraswati gave 7 calls to Siddique Mia
during the period from 11.11.2008 to 14.11.2008.
Documentary evidence indicates that Siddique Mia made 13
calls to Saraswati during the period from 10.11.2008 to            H
746       SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A 27.11.2008. Ext.35 shows that Saraswati gave 38 calls to
  Durga Sutradhar during the period from 11.11.2008 to
  20.11.2008. Documentary evidence also indicates that all the
  accused were in contact with one another over the phone.
  Scrutiny of call details revealed that on 11.11.2008 Saraswati
B gave 2 calls toAnjali. One call was at 12.55 hours and another
  call was at 12.58 hours and 4 calls to Siddique Mia, first call
  was at 9.55 hours and the last call was at 17.20 hrs.
  Documentary evidence further indicates that on 11.11.2008
  Siddique Mia had a telephonic conversation with Mustaque
C Mia around 19.19 hours and Siddique Mia had also telephonic
  conversation with Saraswati and the first call was around 9.55
  hours and the last call was at 21.42 hours. Saraswati had a
  telephonic conversation too with Durga Sutradhar on that date
D and there were six incoming and outgoing calls. The first call
  was around 10.57 hours and the last call was at 17.57 hours.

       25. Apart from telephonic conversation, no other evidence
  was adduced by the prosecution to bring home that first
  accused hatched a conspiracy. There is no evidence to prove
E as to how the appellants 2 and 3 ( Siddique Mia and
  Mustaque Mia) had gone to the place of occurrence and what
  was their subsequent conduct. Their presence near the scene
  of occurrence could have been established by the prosecution
F either by examining some witnesses near and around the
  place of occurrence or by proving the location of the calls so
  as to establish the proximity of the accused with the ::;cene of
  occurrence. Apart from the extract of the call records, no other
  evidence was adduced by the prosecution to establish the
G conspiracy.

       26. Apart from telephonic conversation, prosecution also
  relied upon recoveries made pursuant to the confessional
  statement of the appellants 2 and 3 (Siddique Mia and
H Mustaque Mia). Pursuant to the statement of Siddique Mia
         KIRITI PAL v. STATE OF WEST BENGAL                    747
                   [R. BANUMATHI, J.J

one TVS Fiero red colour motor cycle bearing No. WB-548/ . A
8245 with its key and nokia mobile handset (phone
No.9932345230) were seized under Ext.17/3. Pursuant to the
statement of Mustaque Mia nokia mobile handset having
connection No. 9932705533, one gold finger ring in the
shape of a flower with inscription of letter 'Anjali', and silver B
made chain with one Amethist and red coral fitted with it were
seized under Ext. 18/3. Recoveries made and seizure list
were sought to be proved by examination of PW17-Uttam
Mondal. PW17 had deposed that he knew deceased Anjali.
PW17 was then employed in the hotel run by Bhagyadhar C
Dhibar which was owned by Anja Ii. In his evidence PW17
stated that in January 2009, two or three gentlemen came to
his hotel and took his signature and that he did not know why
his signatures were being taken. Though PW17 identified his
                                                                  0
signatures in the seizure list, evidence of PW17 no way
establishes recoveries being made at the instance of the
accused 2 and 3. Evidence of PW17 is far from convincing
and is not of much assistance to the prosecution as he has
not clearly spoken about the recoveries and the seizure list. E
The gold ring and silver made chain recovered were also not
shown to the other witnesses for being identified as that of
Anjali. No other evidence was adduced by the prosecution to
substantiate the recovery of objects and the seizure list.
                                                                 F
     27. Safar as the complicity of fourth accused-Durga
Sutradhar, the prosecution mainly relied upon the call record
and judicial confession of Durga recorded by Judicial
Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution
relied upon the recovery a notebook seized from the G
possession of appellant Durga Sutradhar where she has
written Kiriti's phone number clandestinely coded as 'Dadu'.
Ext. 30 call records of Kiriti Pal phone also revealed that there
were number of calls from Kiriti Pal to fourth appellant. Like
in the case of appellants No. 2 and 3 (Siddique Mia and H
748          SUPREME COURT REPORTS                     (2015] 4 S.C.R.


A Mustaque Mia) apart from telephone calls, no other evidence
  was adduced by the prosecution to bring home the guilt of
  fourth accused-Durga Sutradhar. Insofar as the judicial
  confessional statement recorded under Section 164 Cr.P.C.,
  it is not an inculpatory statement; but it is only to the effect of
B showing the subsequent conduct of A-1 Kiriti Pal in
  threatening Durga Sutradhar-fourth appellant not to disclose
  anything to the police. In our view, neither the telephone calls
  between the first appellant-Kiriti Pal and Durga Sutradhar-
  fourth appellant nor her confessional statement by themselves
C would be sufficient to establish the guilt of fourth appellant.
           28. In a case based on circumstantial evidence, the court
      must adopt a very conscious approach and should record
      conviction only if all the links in the chain are complete pointing
D     to the guilt of the accused. All the links forming complete chain
      must be firmly established by the prosecution. Each link taken
      separately may just suggest suspicion but such suspicion
      itself may not take the place of proof and not sufficient to
      convict the accused. All the circumstances must be firmly
E     established and must be consistent only with the hypothesis
      of the guilt. But that is not to say that the prosecution must
      meet each and every hypothesis put forward by the accused
      however farfetched it may be. As discussed earlier, the
      telephonic calls and the recovery may raise suspicion against
F     the accused but mere suspicion itself cannot take the place
      of proof. In our view, evidence adduced by the prosecution
      against appellants 2 and 3 (Siddique Mia and Mustaque Mia)
      do not form a complete chain connecting the accused with
G     the crime and the conviction of the appellants under Section
      302 IPC read with Section 1208 IPC cannot be sustained
      and deserves to be set aside. Likewise, conviction of fourth
      appellant-Durga Sutradhar under Section 1208 cannot be
      sustained and is liable to be set aside.
H          29. In the result, criminal appeal No.50/2014 filed by
          KIRITI PAL v. STATE OF WEST BENGAL                    749
                    [R. BANUMATHI, J.]

accused Kiriti Pal is dismissed and the conviction and A
sentence under Section 302 IPC and 1208 IPC and under
Section 25(i)(a)(b) of the Arms Act imposed on the first
appellant-Kiriti Pal by the High Court is confirmed. Criminal
Appeal No.1841/2012 filed by accused Siddique Mia and
Mustaque Mia and criminal api:,aal No.1725/2014 filed by B
Durga Sutradhar are allowed. Appellants 2 to 4 (Siddique Mia,
Mustaq Mia and Durga Sutradhar) are acquitted of all the
offences and they are directed to be set at liberty forthwith if
not required in any other case.
                                                                 c
Devika Gujral                            Appeals disposed of.