SURAJDEO MAHTO AND ANR.versusTHE STATE OF BIHAR

                        [2021] 8 S.C.R. 911                             911


                SURAJDEO MAHTO AND ANR.                                 A
                                 v.
                     THE STATE OF BIHAR
                 (Criminal Appeal No. 1677 of 2011)
                         AUGUST 04, 2021                                B
          [N. V. RAMANA, CJI, SURYA KANT AND
                  ANIRUDDHA BOSE, JJ.]
       Evidence: Circumstantial evidence – Conviction on basis of
– Permissibility of – On facts, prosecution case that appellant no. 1
                                                                        C
lured the victim out of his house, remained with him all along, on
the fourth day joined by appellant no. 2 thereafter, both conspired
and murdered the victim – Conviction of appellant no. 1 and 2, u/s.
302 r/w 34 and 120B and sentenced accordingly – Appellant no. 1
also convicted u/s. 364 – Upheld by the High Court – On appeal,
held: Upon considering the prosecution evidence in entirety, no         D
reason to disbelieve the prosecution version of last seen theory
against the accused – Medical evidence fully corroborates the
prosecution story of murder of the victim having being taken place
on the fourth day – Motive attributed to the appellants that they
murdered the victim because he was allegedly having an illicit affair
                                                                        E
with the sister of appellant No.1, sufficiently proved by the
prosecution – False information given by appellant No.1 and his
post occurrence conduct of absconding and surrendering before
the court only after coercive measures were taken, is relevant to
prove an additional link in the chain of incriminating circumstances
– As regard, appellant No.2, only substantial evidence against him      F
is that he too was seen in the company of the victim and appellant
No.1 on the fourth day – Mere suspicion cannot be accepted as
impeccable evidence to prove his guilt beyond any doubt – Further,
no allegation against appellant No.2 of being evasive or absconding
post occurrence levelled – Thus, due to missing links in the
                                                                        G
prosecution case as regards 2nd Appellant, guilt of 2nd Appellant
not proved beyond the pale of doubt – Thus, 2nd Appellant entitled
to the benefit of doubt and is acquitted of the charges, while the
conviction and sentence of appellant No.1 is upheld – Penal Code,
1860 – u/s. 302 r/w 34 and ss.120B and 364.
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                                911
912            SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A           Principle of ‘Last seen theory’ - Explained.
           Motive – Proof of – Important piece of corroborative evidence
      – Explained.
            Juvenile Justice (Care and Protection of Children) Act, 2000:
      s. 7A – Juvenility – Plea of – Held: Initial onus is on the accused to
B     produce some cogent evidence to prima facie establish the juvenility
      on the date of commission of the offence – On facts, 1st Appellant
      raised plea of juvenility for the first time before this Court –
      Documents relied upon by 1st Appellant-School Leaving Certificate
      and Admit Card issued by the School Examination Board do not
C     inspire any confidence and is not possible to verify the veracity of
      the two documents at this highly belated stage – Plea of juvenility
      raised by the 1st Appellant is rejected.
            Partly allowing the appeal, the Court
            HELD: 1. Although the powers vested in this Court under
D     Article 136 of the Constitution are wide, this Court in a criminal
      appeal by special leave will ordinarily loath to enter into a fresh
      re-appraisement of evidence and question the credibility of
      witnesses when there is a concurrent finding of fact, save for
      certain exceptional circumstances. While it is difficult to lay down
E     a rule of universal application, it has been affirmed time and again
      that except where the assessment of the High Court is vitiated
      by an error of law or procedure, or is based on misreading of
      evidence, or is inconsistent with the evidence and thus has led
      to a perverse finding, this Court would refrain from interfering
      with the findings of the Courts below. [Para 25][928-C-E]
F
            2.1 The case of the prosecution in the instant case heavily
      banks upon the principle of ‘Last seen theory’. The last seen
      theory is applied where the time interval between the point of
      when the accused and the deceased were last seen together,
      and when the victim is found dead, is so small that the possibility
G     of any other person other than the accused being the perpetrator
      of crime becomes impossible. The fact of last seen should not be
      weighed in isolation or be segregated from the other evidence
      led by the prosecution. The last seen theory should rather be
      applied taking into account the case of the prosecution in its
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  SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                         913


entirety. Hence, the Courts have to not only consider the factum        A
of last seen, but also have to keep in mind the circumstances
that preceded and followed from the point of the deceased being
so last seen in the presence of the accused. [Para 29, 30][929-F-
G; 930-E-F]
       2.2 The prosecution in the instant case undoubtedly              B
established that the deceased was last seen alive in the company
of the appellants, and has also adduced evidence about the events
leading up to and following the point of last seen. The depositions
of PW-2, PW-3A, PW-16 and PW-17 do suggest that prior to the
point of last seen, the deceased was constantly in the company of
Appellant No.1. PW-3 and PW-4 are the persons who lastly saw            C
the deceased alive on 09.04.1987, and they categorically deposed
that they had seen the deceased along with the appellants. Through
the depositions of PW-1, PW-5, & PWs 10 to 14 the prosecution
has attempted to shed light on the events that occurred post the
point of last seen. [Para 31][930-F-H]                                  D
       2.3 The submission that most of the prosecution witnesses
were either related or close to the complainant party and their
testimony could not be relied upon in the absence of corroboration
by any independent witnesses, is without much substance. It is
trite in law that the job of the prosecution is to put forth the best   E
evidence that is collected during the investigation. Although it is
ideal that the prosecution case is further substantiated through
independent witnesses, but it would be unreasonable to expect
the presence of third-parties in every case. The prosecution’s
case cannot be discarded merely on a bald plea of all witnesses
being related to the complainant party. Hence, in order to draw         F
an adverse inference against the non-examination of independent
witnesses, it must also be shown that though the best evidence
was available, but it was withheld by the prosecution. That apart,
PW-3 saw A and the appellants on the outskirts of the village,
whereas, PW-4 saw A and the appellants inside appellant No.2’s          G
house. Neither of these witnesses claim to have seen the
deceased and the appellants at a public place. Thus, it would not
be illogical to infer that there was no independent witness to this
occurrence. Further, the deposition of both PW-3 and PW-4 seems

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914            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     natural and nothing has been adduced in their cross-examination
      to disbelieve their testimonies. [Para 32, 33][931-A-E]
              2.4 The appellants submitted that even if the deposition of
      PW-3 was considered true, he had seen A in the company of the
      appellants on 09.04.1987, which was two days before the discovery
B     of the dead body. It was, thus, submitted that the intervening
      time period between the two events could not rule out the
      possibility of intervention by a third party and as such there wasn’t
      a continuous chain of circumstances. While this submission seems
      attractive at the first instance, but, when considered in the light
      of testimonies made by the independent witnesses PW-6 and PW-
C     8, it stands completely belied. The prosecution case is that both
      the appellants committed the murder on the night of 09.04.1987.
      PW-8, who discovered the body of A on 11.04.1987, deposed that
      he had heard rumors about the dead body the previous night
      itself, however, on account of it being dark and a forested area,
D     he was only able to proceed to the spot the next day. Given that
      the body was lying on the spot at least since 10.04.1987, the instant
      crime could have been committed on or before 10.04.1987. The
      medical evidence in the instant case further braces the
      prosecution story. PW-6, the Doctor, examined the body of the
      deceased on 12.04.1987. In his opinion, the time elapsed since
E     the death of A was 36 to 72 hours. Thus, the medical evidence
      fully corroborates the prosecution story of the murder having
      being taken place on 09.04.1987. The Courts below held that the
      murder of the deceased indeed took place on 09.04.1987. There
      is no reason to take a contrary view. [Para 34][931-E-H; 932-A-
F     B]
            2.5 Appellant No.1 has been unable to offer any explanation
      as to circumstances in which he departed from the company of
      the deceased. [Para 35][932-D]
            2.6 As regard to the reliability of the depositions of PW-10
G     to PW-14, the primary submission is that except PW-12, none of
      the other witnesses were able to identify the present appellants;
      and that the testimony of PW- 12 seems doubtful as it was highly
      improbable that the witness was able to see appellant No.2 through
      the light of a lamp. Assuming that the depositions of PW-10,
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   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                          915


PW-11, PW-13 and PW-14 do not add much value to the case in               A
hand, the question whether PW-12 could or could not identify
appellant No.2 is purely a factual issue and courts below have
taken a concurrent view in relation thereto. PW-12 was able to
identify appellant No.2 because of the chicken-pox marks on his
face. Even in the initial statement recorded by the police, PW-12
                                                                          B
had maintained that one of the two persons who he had interacted
with on the night of 09.04.1987, had chicken-pox scars on his
face. [Para 36][932-D-G]
      2.7 Upon considering the prosecution evidence in its
entirety and having meditated on the grounds raised by the
appellants to every possible extent, there is no reason to                C
disbelieve the prosecution version of last seen theory against
the appellants. [Para 37][932-G-H]
      3.1 If motive in a case is attributed to an accused(s) and
thereafter proved, the probability of the crime being committed
by the said accused is intensified. It is for this reason, that in        D
cases of overwhelming circumstantial evidence, proof of motive
will be an important piece of corroborative evidence, as well as,
form a vital link in the chain of evidence. [Para 38][933-A-B]
       3.2 The motive attributed to the appellants in this case is
that they murdered the deceased because he was allegedly having           E
an illicit affair with ‘R’, sister of appellant No.1. While none of the
witnesses have specifically deposed about the deceased having
an affair with R, the motive, as alleged, does find some
corroboration in the deposition of PW- 1, PW-3A, and PW-16. It
is revealed from the testimony of PW-3A, that initially there were        F
cordial and friendly relations between the 1st Appellant and
deceased’s family but the same became sour after the month of
February. PW-1 who is a fellow villager corroborated the
testimonies of PW-3A. PW-16 categorically deposed that a
Panchayat had been called in regards to the illicit relationship of
the deceased with ‘R’. [Para 39][933-B-D]                                 G
      4.1 The fact of the deceased having an affair with the sister
of appellant No.1 has of course not been established beyond doubt
but the factum of calling Panchayat so that the issue does not

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916            SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A     spiral out of control does suggest that appellant No.1 carried a
      motive to eliminate the deceased. The events had occurred in
      the year 1987, when the rural Indian society was irrepressibly
      conservative, and even the slightest rumor of extra- marital affairs
      could flare-up tensions. Considering these ground realities, the
      trial court correctly recorded that the motive as alleged had been
B
      sufficiently proved by the prosecution. The counsel for appellants
      has not mounted any substantial challenge on the point of motive,
      and as such, there is no reason to interfere with the indictment of
      appellant No.1 on the point of motive. [Para 40][933-D-G]
              4.2 Both the witnesses PW-1 and PW-5 individually met
C     appellant No.1 on 10.04.1987 and both of them enquired about
      the whereabouts of A. Appellant No.1 lied to PW-1 and told him
      that after viewing the Cinema, A alone had proceeded to Amwa
      whereas appellant No.2 had gone to visit Dopta. Even more
      curiously, appellant No.1 informed PW-5 that A had left for Delhi.
D     It is clear that the false information provided by the first appellant
      was an attempt to hide his guilt by de-railing the search efforts
      that were being conducted. Appellant No.1 thereafter absconded
      and surrendered before the court only after coercive measures
      were taken. The false information given by appellant No.1 and
      his post occurrence conduct is relevant to prove an additional
E     link in the chain of incriminating circumstances. [Para 41][933-
      G-H; 934-A-C]
            4.3 There is, however, a qualitative difference in the
      evidence led by the prosecution to prove charges against
      Appellant No.2. The prosecution’s case is that it was the 1st
F     Appellant who allured the deceased and persuaded him to
      accompany the said appellant to watch cinema. It is neither their
      case nor have the prosecution witnesses deposed that appellant
      No. 2 was involved in the persuasive abduction of the deceased
      from his house on 05.04.1987. This has to be seen in the context
G     of motive behind the offence. It is proved on record that the 1st
      Appellant had an axe to grind against the deceased who was
      allegedly having illicit relationship with his sister. There is no
      motive alleged or proved which would have swayed appellant No.
      2 to commit murder of the deceased. Still further, prosecution

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  SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                      917


has led no evidence that there was any meeting of mind between       A
the 1st and the 2nd Appellant on or before 08.04.1987, or that
they hatched any conspiracy together to commit the murder of A.
There is also no evidence on record to suggest that appellant
No.1 disclosed his intention to commit murder of deceased to
the 2nd appellant. [Para 42][934-C-F]
                                                                     B
      4.4 It is true that the prosecution has led evidence
comprising the statements of PW-3 and PW-4 who had lastly seen
the deceased alive on 09.04.1987 in the company of the 1st and
the 2nd Appellants. However, until and unless the last seen theory
is substantiated by other circumstantial evidence to constitute
an unbreakable chain of events, the conviction cannot rest solely    C
on the basis that the 2nd Appellant was also present along with
appellant No.1 in the company of the deceased when they were
seen together on 09.04.1987. [Para 43][934-F-G]
       4.5 It is pertinent to mention that some incriminating
material consisting of one pair of slippers, one handkerchief, a     D
knife, jerrycan and two lungis were found and seized at the place
of occurrence. While PW-16, namely, father of the deceased has
identified one of the seized lungis belonging to appellant No.1,
none of the recovered articles have been attributed to the 2nd
Appellant. The only substantial evidence against the 2nd Appellant   E
is that he too was in the company of the deceased and appellant
No.1 on 09.04.1987, i.e., they were seen together lastly. Even if
it is presumed that the deposition of PW-12 identifying appellant
No.2 on the night of 09.04.1987 to be true, such evidence, may
create a strong suspicion in respect of involvement of the 2nd
Appellant in the murder of the deceased, but then, mere suspicion    F
cannot be accepted as impeccable evidence to prove his guilt
beyond any doubt. [Para 44][934-H; 935-A-C]
      4.6 There is post occurrence circumstantial evidence led
against appellant No.1, namely, that he did not disclose the
whereabouts of the deceased and then surreptitiously disappeared     G
from the scene till he surrendered in Court. There is no such
allegation of being evasive or absconding post occurrence levelled
against appellant No.2. There are, thus, missing links in the

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918            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     prosecution case so far as the 2nd Appellant is concerned.
      Consequently, and for the reasons, the case of Appellant No.2 is
      distinguishable from that of Appellant No.1 and the prosecution
      has not been able to prove the guilt of 2nd Appellant beyond the
      pale of doubt. The 2nd Appellant is, thus, entitled to the benefit
      of doubt. [Para 45][935-C-E]
B
             5.1 Section 7-A of Juvenile Justice (Care and Protection of
      Children) Act, 2000 sets out the procedure to be followed by a
      court to determine the claim of juvenility. Its proviso enables to
      raise the claim of juvenility before “any court” and at “any stage”,
      even after the final disposal of the case. However, in order to
C     take advantage of the provision, there lies an initial onus on the
      accused to produce some cogent evidence to prima facie establish
      the juvenility on the date of commission of the offence. [Para
      46][935-E-F]
            5.2 The 1st Appellant raised plea of juvenility for the first
D     time before this Court. He has placed a School Leaving Certificate
      along with an Admit Card issued by the Bihar School Examination
      Board, wherein, appellant No.1’s date of birth is claimed to be
      01.03.1970. It has been asserted that the 1st Appellant was 17
      years old at the time of occurrence. When the documents relied
E     upon by 1st Appellant are analysed in the backdrop of these settled
      principles, the same do not inspire any confidence. The name of
      appellant No.1 does not appear on the documents, instead these
      belong to one ‘SP’. It is nearly impossible to verify the veracity of
      the two documents relied upon by appellant No.1 at this highly
      belated stage. Further, the record of the trial court does suggest
F     that the name of the 1st Appellant is ‘SM’ and not ‘SP’. In the
      absence of any cogent material indicating that the subject-
      documents pertain to 1st Appellant only, no case to hold any fact-
      finding enquiry is made out. Consequently, reliance on the
      documents in question is not accepted and the plea of juvenility
G     raised by the 1st Appellant is rejected. [Para 48][935-G-H; 936-
      E-G]
           6. While the conviction and sentence of Appellant No.1 is
      upheld, the 2nd Appellant is acquitted of the charges. [Para 49][936-
      G-H]
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  SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                        919


      Abuzar Hossain alias Gulam Hossain v. State of West              A
      Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244;
      Inspector of Police, Tamil Nadu v. John David (2011) 5
      SCC 509 : [2011] 7 SCR 354; State of Rajasthan v.
      Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl. SCR
      501; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999]
                                                                       B
      3 Suppl. SCR 314; Badruddin Rukonddim Karpude v.
      State of Maharashtra (1981) Supp SCC 1; Ravinder
      Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : [2006]
      2 Suppl. SCR 615; Sharad Birdhichand Sarda v. State
      of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
      Mohd. Younus Ali Tarafdar v. State of W.B. (2020) 3              C
      SCC 747; R. Damodaran v. State Represented by the
      Inspector of Police (2021) SCC OnLine SC 134;
      Satpal v. State of Haryana (2018) 6 SCC 610 – referred
      to.
                       Case Law Reference                              D
[2012] 9 SCR 244                 referred to             Para 20
[2011] 7 SCR 354                 referred to             Para 21
[2006] 8 Suppl.SCR 501           referred to             Para 21
[1999] 3 Suppl. SCR 314          referred to             Para 22       E
(1981) Supp SCC 1                referred to             Para 22
[2006] 2 Suppl. SCR 615          referred to             Para 23
[1985] 1 SCR 88                  referred to             Para 27
(2020) 3 SCC 747                 referred to             Para 27       F

(2018) 6 SCC 610                 referred to             Para 29
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1677 of 2021.
      From the Judgment and Order dated 20.05.2010 of the High Court   G
of Judicature at Patna in Criminal Appeal No.273 of 1988.
      Ms. Prerna Singh, T. Mahipal, Advs. for the Appellants.
       Abhinav Mukerji, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs.
for the Respondent.
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920            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A           The Judgment of the Court was delivered by
            SURYA KANT, J.
             1. Surajdeo Mahto (Appellant No.1) and Prakash Mahto
      (Appellant No.2) have laid challenge to the judgment dated 20.05.2010
      passed by the High Court at Patna, whereby, the order of their conviction
B     and sentence dated 13.05.1988 passed by the 3rd Additional Sessions
      Judge, Nawadah was confirmed. Both the Appellants have been convicted
      for offences under Section 302 read with section 34 of the Indian Penal
      Code [in short, “IPC”] read with Section 120-B of the IPC and have
      been sentenced to life imprisonment for each of the offences. Additionally,
C     Appellant No.1 has also been convicted under section 364 IPC and has
      been sentenced to five years of imprisonment for the said offence, with
      a direction that the sentences will run concurrently.
            FACTS
             2. The prosecution case, in brief, is that on 05.04.1987, Arun
D     (deceased) and Sunder Prasad (PW-17) were putting up in Arun’s house
      at Manawan village when Surajdeo Mahto (Appellant No.1) and Raj
      Kumar approached Arun and asked him to accompany them to the Cinema
      at Nawada village. While Arun was reluctant initially to accompany them,
      he eventually agreed when Appellant No.1 volunteered to bear the
E     expenses. Upon Arun’s request, Sunder Prasad (PW-17) also agreed to
      go along with them to the Cinema. After the show, Raj Kumar and
      Sunder Prasad returned to Manawan village on 06.04.1987 whereas
      Arun and Surajdeo Mahto did not come back with them. As Arun did not
      return, Ramji Mahto (father of Arun; PW-16) enquired from Raj Kumar
      who told him that Arun and Surajdeo Mahto had gone to Arun’s in-laws’
F     place in Amwa village.
             3. A few more days passed and Arun had not yet returned home,
      Arun’s worried family, therefore, sent Raj Kumar to bring him back.
      Ramji Mahto also requested his fellow villager Kailash Mahto (PW-1)
      to join him in looking for Arun. They found out that Surajdeo Mahto and
G     Arun had visited the latter’s in-laws’ place on 06.04.1987 and stayed
      there till 08.04.1987. It was further discovered that the duo had then
      proceeded to Dopta village wherein Appellant No.1’s sister was married.
      Thereafter, Appellant No.1 returned to his village Manawan on
      10.04.1987, but whereabouts of Arun were still unknown. When asked,
      Appellant No.1 did not provide any credible information about Arun,
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   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                            921
                 [SURYA KANT, J.]

instead, he too disappeared and was not seen for the next few days.         A
Pursuant to Ramji’s request, PW-1 visited Dopta on 10.04.1987 but he
too was unable to track down Arun. Since Arun was still untraceable,
Ramji Mahto, through his nephew Ishwari Mahto (PW-3A), sent
information to the Police, which culminated in the lodging of Sanha Entry
No. 227, dated 11.04.1987.
                                                                            B
       4. In the meantime, Ram Brikch Paswan (PW-8), Chowkidar,
Circle No. 7, heard rumours of a dead body in Ram Sagar Ahar
(Reservoir) near Kakolat. On 11.04.1987, he proceeded to the spot and
discovered the dead body. He also found an iron dagger and two lungis
near the body. The statement of Ram Brikch Paswan was subsequently
recorded by the police and treated as a Fardbeyan. Thereafter,              C
Ramchandra Singh (PW-18), Officer-In-charge, Govindpur Police Station
reached the spot and prepared the inquest report in the presence of
witnesses. Upon inspecting the place of occurrence, additional material
such as one pair of slippers, one handkerchief, a knife and a jerrycan
made of plastic were also discovered and seized. A seizure list was         D
prepared in the presence of witnesses. The dead body was then sent for
post mortem examination.
       5. On 12.04.1987, Ramji Mahto (PW-16) received information
that a dead body of a male person was brought in by the Govindpur
Police Station. Subsequently, Ramji Mahto along with some co-villagers      E
went to the Police Station and identified that the dead body was that of
his son Arun.
       6. The investigation then proceeded in light of the above-stated
facts, and upon collection of substantial evidence, a charge sheet was
filed against Surajdeo Mahto (Appellant No.1), Prakash Mahto (Appellant     F
No.2), Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The case
was committed to the court of 3rd Additional Sessions Judge, Nawadah
and charges were framed against the accused persons for offences
under sections 364, 120-B and 302 read with section 34 of the IPC. The
accused persons abjured their guilt and claimed trial.
                                                                            G
       7. In the eventual trial, a total of 18 witnesses were examined by
the prosecution. No documentary evidence was relied upon by the
prosecution. The case of the prosecution rested heavily upon
circumstantial evidence, including deposition of Ramji Mahto (PW-16),
father of the deceased. PW-16 in his deposition alleged that Surajdeo
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922             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     Mahto (Appellant No.1) had lured the deceased away on the pretext of
      watching cinema on 05.04.1987. PW-16 deposed that “Arun told him
      that he was not ready to go. Surajdeo told him that he will bear the
      cost. Thereafter on being pressurized by Surajdeo, Arun went out
      with Surajdeo, Raj Kumar and Sunder”. PW-16 also deposed that it
      was at his instance that Ishwari Mahto (PW-3A) went and informed the
B
      police on 11.04.1987 about Arun’s disappearance, and on 12.04.1987 he
      visited Govindpur Police Station and identified the dead body of Arun.
      PW-16 further identified one of the seized lungis belonging to Suarjdeo
      Mahto (Appellant No.1). The cross-examination of PW-16 also brought
      to light the motive attributed to the accused persons: the relations between
C     the parties were strained after a Panchayati (village meeting) had been
      held in connection with the illicit relationship of the deceased with the
      sister of Appellant No.1.
             8. Likewise, Ishwari Mahto (PW-3A) deposed that he had last
      seen Arun in the company of Appellant No.1, Raj Kumar and Sundar on
D     05.04.1987, and he was informed by Appellant No.1 that they were
      going to see the cinema. Ishwari Mahto further shed light on the feud
      between the parties and he stated that “Previously the families of
      Surajdeo and Arun had visiting and dining terms with each other,
      but it stopped after the month of Magh”. Sunder Prasad (PW-17)
      corroborated the deposition of PW-16, and stated that Appellant No.1
E     pressurized Arun to accompany him and Raj Kumar to watch Cinema.
      PW-17 also deposed to accompanying Appellant No.1, Arun and Raj
      Kumar to the Cinema and further revealed that after the Cinema, instead
      of returning back to their village, Appellant No.1 forced the group to visit
      Kumbhrawan village. PW-17 stated that upon Appellant No.1’s
F     insistence, they spent the night in Prakash Mahto’s house (Brother-in
      law of Surajdeo; Appellant No.1). The next day, i.e., 06.04.1987, when
      PW-17 insisted on returning back to the village, Surajdeo Mahto
      (Appellant No.1) informed him that he and Arun will be visiting Amwa
      Village.
G            9. Dilkeshwar Mahto (PW-2), Arun’s father-in-law, deposed that
      Arun and Appellant No.1 visited his house in Amwa Village on the evening
      of 06.04.1987 and stayed there till 08.04.1987. He further deposed that
      “On Wednesday, I asked Arun and Surajdeo insistently to stay
      further, but Surajdeo did not agree and took Arun with him saying
      that they had to go Dopta.”
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   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                              923
                 [SURYA KANT, J.]

       10. Bipat Mahto (PW-4), deposed that on Thursday, i.e.,                A
09.04.1987, he received information from his grandson that Arun was in
Kumbhrawan village and was staying at the house of Prakash Mahto
(Appellant No.2). Since PW-4 was Arun’s uncle and also resided in the
same village, he and his wife went to invite Arun to their place. He
stated, “We met Arun, Prakash and Surajdeo at that place. I invited
                                                                              B
Arun to come to my place and take meal there. Prakash told me
that he had arranged food for them, hence they would go after
taking meal at his place.” He further stated that despite Appellant
No.2’s assurance, Arun did not come to their place. Later, when PW-4’s
wife went again to call Arun, she was informed by Appellant No.2’s
wife that Arun had gone back. Sheodani Mahto (PW-3), who is the son           C
of PW-4 and the cousin of the deceased, also deposed about the presence
of Arun in Kumbhrawan village on 09.04.1987. According to him, when
he was returning back to the village, he saw Arun on the outskirts of the
village in the company of Surajdeo, Prakash, Raj Kumar and Shankar,
and upon asking them where they were going, Surajdeo informed PW-3
                                                                              D
that all of them were going towards Kakolat village.
       11. We may now consider the statements of Bharat Singh (PW-
10), Kashi Mahto (PW-11), Ram Prasad (PW-12), Baleshwar Prasad
(PW-13) and Mathura Saw (PW-14). PW-10 and PW-11 deposed that
on the night of 09.04.1987, they had heard a motor vehicle (tractor)
going in the direction of Kakolat. However, PW-10 and PW-11 had not           E
seen the passengers in the vehicle. PW-12, PW-13 and PW-14 were all
present near PW-14’s shop in the late hours of 09.04.1987 and they
deposed about seeing two persons returning from Kakolat. PW-12 went
further and stated that he was able to identify the persons who had
stopped near PW-14’s shop. Upon seeing the accused persons in Court,          F
PW-12 identified Appellant No.2 as one of the persons who had come to
the shop that night. PW-12 in his cross-examination admitted that the
police had not asked him to take part in a Test Identification Parade [in
short, “T.I.P.”]. It is pertinent to mention that this set of evidence only
finds relevance because the dead body of Arun was discovered in Ram
Sagar Ahar which was near Kakolat village.                                    G

      12. The evidence of Kailash Mahto (PW-1) and Umeshwar Prasad
(PW-5) also bears some relevance to the prosecution’s case. PW-1
deposed that on 09.04.1987 he was requested by PW-16 to search for
Arun. He further stated that the next day, i.e., 10.04.1987, he went to
                                                                              H
924             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     the market and there he found Appellant No.1. PW-1 claims that when
      he enquired about Arun’s whereabouts from him, Surajdeo Mahto
      (Appellant No.1) told him that after viewing the cinema, Arun had gone
      to Amwa village whereas he went to Dopta village. PW-5 too has deposed
      that he met Surajdeo on 10.04.1987 at Barnwal Medical Hall at Hisua
      where Appellant No.1 told him that Arun had gone to Delhi.
B
             13. Ram Brikch Paswan (PW-8), Chawkidar Circle No.9, was
      the one who discovered the dead body of Arun on 11.04.1987. In his
      cross-examination he deposed that he had heard rumors of a dead body
      in Ram Sagar Ahar on the night of 10.04.1987 itself, however, it being
      night time and the place being a forested area, he could go there on the
C     following day only. PW-6, is the Doctor who conducted the post mortem
      examination of the dead body. Upon examining the injuries present on
      the deceased’s body, PW-6 opined that the injuries were sufficient to
      cause death in the normal course of nature, and the time elapsed from
      death was 36 to 72 hours.
D           14. The case of the accused persons, as recorded in their statements
      under section 313 of the Code of Criminal Procedure, 1973 was one of
      denial. No other evidence was led by the defence.
             15. The Trial Court was conscious of the fact that in order to
      prove the guilt of the accused by means of circumstantial evidence, the
E     chain of evidence should be completed so as to exclude all the hypothesis
      of innocence of the accused. Upon extensively scrutinizing the deposition
      of witnesses, the Trial Court observed that there was a paucity of
      eyewitnesses to explain circumstances in which the deceased met his
      end and the evidence on record fell short of establishing the complicity
F     of Chando Mahto, Shankar Mahto and Raj Kumar Mahto. The Court,
      however, held that the circumstantial evidence on record did suggest
      that Appellant No.1 lured the deceased out of his house on 05.04.1987;
      remained with him all along; Appellant No.2 then joined them on
      09.04.1987; and thereafter the present appellants conspired and murdered
      the deceased near Kakolat. Negating the contentions raised by the
G     defence, the Trial Court believed the testimony of PW-16 in toto and
      held that purported motive as well as the identification of incriminating
      material by PW-16 further established the guilt of the appellants. While
      the Trial Court observed that there were some inconsistencies in the
      case put forth by the prosecution, but those were held to be “petty details”
H     and minor contradictions.
   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                               925
                 [SURYA KANT, J.]

       16. The Trial Court further noted that Appellant No.1 had exhibited     A
behaviour that could not have been considered normal. Judicial notice of
the false and evasive replies given by Appellant No.1 to PW-1 and
PW-5 when they inquired about the whereabouts of the deceased was
also taken. The Court held that since various links in the chain of evidence
have been satisfactorily proved, the false explanation given by Appellant
                                                                               B
No.1 could be construed as an additional link in the chain of evidence,
which would lend further support to the prosecution case. The Court
further observed that when enquiries were taking place, instead of helping
in the search of Arun, Appellant No.1 absconded, and he surrendered
before the court on 18.04.1987 only, when coercive measures were
undertaken to compel his appearance. Lastly, unconvinced by the defense        C
taken by the Appellant, the Trial Court opined that the plain denial of the
prosecution allegations by the accused persons was nothing but an attempt
to screen themselves from the “rigours of legal punishment”. The
Trial Court thus held that the circumstantial evidence in the instant case
was clinching, and consequently convicted the present appellants.
                                                                               D
       17. Discontented with their conviction, the appellants preferred
an appeal before the Patna High Court. Upon a reappraisal of the
evidence on record, the High Court observed that the prosecution
witnesses were able to provide a date and stage wise testimony in order
to prove the prosecution case. The High Court further laid emphasis on
the false information provided by Appellant No.1 to PW-5. Considering          E
these aspects, the High Court vide the impugned judgement dated
20.05.2010 affirmed the findings of the Trial Court and upheld the
conviction and sentence of the appellants.
      18. The aggrieved appellants are now before this Court.
                                                                               F
      CONTENTIONS
       19. We have heard Learned Counsel for the appellants at
considerable length. The principal contention is that the entire case rested
on circumstantial evidence and there was no eye-witness to the alleged
incident. Learned Counsel submitted that no independent witnesses had          G
been examined by the prosecution and all the witnesses were either
relatives or close friends of the complainant party. The Counsel further
pressed that the Courts below have completely erred in relying upon the
testimony of PW-10 to PW-14. As far as Appellant No.2 is concerned, it
was submitted that only evidence against him was that of Sheodani Mahto
                                                                               H
926                SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     (PW-3) and Baleshwar Prasad Yadav (PW-12). The Counsel asserted
      that PW-3 had seen the deceased in the company of Appellant No.2 two
      days prior to the recovery of the dead body, and hence the evidence of
      PW-3 did not support the prosecution case. Casting doubts on the
      credibility of the evidence of PW-12, it was claimed to be highly
      improbable that PW-12 was able to see the face of Appellant No.2 only
B
      through the light of a lantern on a pitch-dark night. Learned Counsel
      further contended that the failure on the part of the investigating agency
      not to send the knife recovered at the spot of occurrence for forensic
      examination was fatal to the prosecution case. Hence, it was urged that
      the Courts below fell in grave error in convicting the appellants merely
C     on the basis of ‘last seen theory’.
             20. In all fairness, we may notice an additional plea taken by
      Appellant No.1, which has been raised for the first time before this
      Court. It was claimed that Appellant No.1 was a ‘juvenile’ on the date
      of occurrence. In support of such claim, Learned Counsel relied on the
D     copies of ‘School Leaving Certificate’ along with an ‘admit card’ issued
      by the Bihar School Examination Board, according to which Appellant
      No.1 was purportedly born on 01.03.1970. As the date of occurrence
      was between 09.04.1987 to 11.04.1987, it is submitted that Appellant
      No.1 was 17 years of age at that time and therefore, a juvenile. To
      further buttress this claim, Learned Counsel for the appellants drew our
E     attention to section 7A of the Juvenile Justice (Care and Protection of
      Children) Act, 2000 as well as the decision of this Court in Abuzar
      Hossain alias Gulam Hossain v. State of West Bengal 1.
             21. On the other hand, Learned Counsel appearing for the State
      of Bihar submitted that there has been a concurrent finding of guilt by
F     two courts on minute examination of the evidence on record which does
      not warrant any interference by this Court. Relying upon Inspector of
      Police, Tamil Nadu v. John David2, it was urged that conviction in
      cases of circumstantial evidence is permissible. The State Counsel
      passionately argued that the chain of circumstances in the present case
G     is complete in every respect. He made pointed reference that First, the
      motive, as recorded by the Trial Court, was clearly established in the
      present case. Second, both the courts below have concurrently held
      that the deceased was last seen alive in the company of the Appellants.
      1
          (2012) 10 SCC 489, ¶ 39
      2
H         (2011) 5 SCC 509, ¶ 33 to 35
    SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                              927
                  [SURYA KANT, J.]

He cited State of Rajasthan v. Kashi Ram 3, to urge that in situations         A
when the deceased was last seen in the company of the accused, a
presumption would arise that the said accused murdered the deceased.
It was argued that presumption has not been dislodged by the Appellants
in the present case. Third, the guilt of the appellants can be adduced
from their conduct as not only did they lure the deceased on the pretext
                                                                               B
of watching the cinema, but also gave false and misleading information
about the deceased’s whereabouts. Fourth, the seizures/recoveries made
during the investigation do establish the involvement of appellants, as
one of the two lung is recovered at the place of occurrence was identified
as that belonging to Appellant No.1. Fifth, the medical examination does
establish that the death of the deceased was caused by unnatural means         C
and, Sixth, the dead body which was recovered has been identified as
that of Arun.
       22. Learned State Counsel further canvassed that all the material
witnesses, PW-1 to PW-14, have corroborated each other’s versions.
Drawing force from the decisions in Sukhar v. State of U.P. 4 &                D
Badruddin Rukonddim Karpude v. State of Maharashtra5, it was
submitted that the principles of res gestae are applicable to the facts and
circumstances of this case, and the statements made by one witness to
another are admissible in evidence. He also urged that the absence of
T.I.P. in the present case would not be fatal to the case of the
prosecution6.                                                                  E

       23. As regard to the plea of Appellant No.1 being a juvenile raised
for the first time before this Court, it was vehemently urged by the State
Counsel that the first appellant deliberately waited till this belated point
of time to raise the plea knowing fully well that in the event of an inquiry
ordered by the Court, there would be no record available to contradict         F
the documents put forth by him. He further pointed out certain patent
discrepancies in the documents supplied by Appellant No.1, for instance,
the documents did not bear his name, but instead the name of one
‘Suryadev Prasad’ was mentioned. In furtherance of his arguments, the
Counsel submitted that the purported documents have not been proved            G
in terms of section 35 of the Indian Evidence Act, 1872, [in short, “IEA”]
and as such could not be accepted. Our attention was brought to the
3
  (2006) 12 SCC 254, ¶ 19-24
4
  (1999) 9 SCC 507, ¶ 5 to 10
5
  (1981) Supp SCC 1, ¶ 16
6
  Malkhansingh v. State of M.P., (2003) 5 SCC 746, ¶ 7, 8 to 16                H
928                SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     decision of this Court in Ravinder Singh Gorkhi v. State of U.P.7,
      wherein, the plea of juvenility was rejected because, inter-alia, there
      was an unexplained inordinate delay in raising the plea.
                ANALYSIS
             24. We find that two questions fall for our consideration in the
B     instant appeal; (A) Whether the circumstantial evidence led in the instant
      case is so impeachable that it establishes the guilt of the appellants beyond
      any reasonable doubt? (B) Whether Appellant No.1 was a juvenile on
      the date of the occurrence?
             25. It may be highlighted at the outset that although the powers
C     vested in this Court under Article 136 of the Constitution are wide, this
      Court in a criminal appeal by special leave will ordinarily loath to enter
      into a fresh re-appraisement of evidence and question the credibility of
      witnesses when there is a concurrent finding of fact, save for certain
      exceptional circumstances. While it is difficult to lay down a rule of
D     universal application, it has been affirmed time and again that except
      where the assessment of the High Court is vitiated by an error of law or
      procedure, or is based on misreading of evidence, or is inconsistent with
      the evidence and thus has led to a perverse finding, this Court will refrain
      from interfering with the findings of the Courts below.

E             26. Regardless of such self-imposed restrain, and in the interest
      of justice, we have given thoughtful consideration to the rival submissions
      and have endeavored to peruse and discussed the entire evidence on
      record to ascertain whether or not the concurrent finding of conviction
      suffers from any perversity and/or whether the conviction of the
      appellants is legally and factually sustainable.
F
           A. Whether the guilt of the accused has been proved beyond
      reasonable doubt?
             27. This Court, in its much-celebrated judgment of Sharad
      Birdhichand Sarda v. State of Maharashtra 8, has elaborately
      considered the standard necessary for recording a conviction on the
G
      basis of circumstantial evidence and has further held:



      7
          (2006) 5 SCC 584, ¶ 39 to 41
      8
H         (1984) 4 SCC 116, ¶ 153
     SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                            929
                   [SURYA KANT, J.]

       “153. xxx xxx xxx                                                      A
       (1) The circumstances from which the conclusion of guilt is to be
       drawn should be fully established.
         xxx      xxx       xxx
       (2) The facts so established should be consistent only with the
       hypothesis of the guilt of the accused, that is to say, they should    B
       not be explainable on any other hypothesis except that the accused
       is guilty,
       (3) The circumstances should be of a conclusive nature and
       tendency,
       (4) They should exclude every possible hypothesis except the one       C
       to be proved, and
       (5) There must be a chain of evidence so complete as not to leave
       any reasonable ground for the conclusion consistent with the
       innocence of the accused and must show that in all human
       probability the act must have been done by the accused.”               D
       These five cardinal principles have been reiterated on numerous
occasions, including in the recent decisions in Mohd. Younus Ali
Tarafdar v. State of W.B9 & R. Damodaran v. State Represented by
the Inspector of Police10. Keeping these conditions in mind, we shall
now examine the case at hand.
                                                                              E
       28. It appears to us that the following circumstances need to be
considered to arrive at the guilt of the appellants: (i) Last seen theory;
(ii) Motive & (iii) false information provided and subsequent conduct of
the appellants.
       (i) Last seen theory
                                                                              F
       29. The case of the prosecution in the present case heavily banks
upon the principle of ‘Last seen theory’. Briefly put, the last seen theory
is applied where the time interval between the point of when the accused
and the deceased were last seen together, and when the victim is found
dead, is so small that the possibility of any other person other than the
accused being the perpetrator of crime becomes impossible. Elaborating        G
on the principle of “last seen alive”, a 3-judge bench of this Court in the
case of Satpal v. State of Haryana11 has, however, cautioned that unless
9
  (2020) 3 SCC 747, ¶ 10
10
   2021 SCC OnLine SC 134, ¶ 13
11
   (2018) 6 SCC 610, ¶ 6                                                      H
930            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     the fact of last seen is corroborated by some other evidence, the fact
      that the deceased was last seen in the vicinity of the accused, would by
      itself, only be a weak kind of evidence. The Court further held:
            “……………..Succinctly stated, it may be a weak kind of evidence
            by itself to found conviction upon the same singularly. But when it
B           is coupled with other circumstances such as the time when the
            deceased was last seen with the accused, and the recovery of the
            corpse being in very close proximity of time, the accused owes an
            explanation under Section 106 of the Evidence Act with regard to
            the circumstances under which death may have taken place. If
            the accused offers no explanation, or furnishes a wrong
C           explanation, absconds, motive is established, and there is
            corroborative evidence available inter alia in the form of recovery
            or otherwise forming a chain of circumstances leading to the only
            inference for guilt of the accused, incompatible with any possible
            hypothesis of innocence, conviction can be based on the same. If
D           there be any doubt or break in the link of chain of circumstances,
            the benefit of doubt must go to the accused. Each case will
            therefore have to be examined on its own facts for invocation of
            the doctrine.”
             30. We may hasten to clarify that the fact of last seen should not
E     be weighed in isolation or be segregated from the other evidence led by
      the prosecution. The last seen theory should rather be applied taking into
      account the case of the prosecution in its entirety. Hence, the Courts
      have to not only consider the factum of last seen, but also have to keep
      in mind the circumstances that preceded and followed from the point of
      the deceased being so last seen in the presence of the accused.
F
             31. The prosecution in the present case has undoubtedly established
      that the deceased was last seen alive in the company of the appellants,
      and has also adduced evidence about the events leading up to and
      following the point of last seen. The depositions of PW-2, PW-3A,
      PW-16 and PW-17 do suggest that prior to the point of last seen, the
G     deceased was constantly in the company of Appellant No.1. PW-3 and
      PW-4 are the persons who lastly saw the deceased alive on 09.04.1987,
      and they have categorically deposed that they had seen the deceased
      along with the appellants. Through the depositions of PW-1, PW-5, &
      PWs 10 to 14 the prosecution has attempted to shed light on the events
      that occurred post the point of last seen.
H
   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                                 931
                 [SURYA KANT, J.]

       32. The contention that most of the prosecution witnesses were            A
either related or close to the complainant party and their testimony could
not be relied upon in the absence of corroboration by any independent
witnesses, in our opinion, is without much substance. It is trite in law that
the job of the prosecution is to put forth the best evidence that is collected
during the investigation. Although it is ideal that the prosecution case is
                                                                                 B
further substantiated through independent witnesses, but it would be
unreasonable to expect the presence of third-parties in every case. This
Court has consistently held that the prosecution’s case cannot be
discarded merely on a bald plea of all witnesses being related to the
complainant party. Hence, in order to draw an adverse inference against
the non-examination of independent witnesses, it must also be shown              C
that though the best evidence was available, but it was withheld by the
prosecution.
       33. That apart, PW-3 saw Arun and the Appellants on the outskirts
of Kumbhrawan village, whereas, PW-4 saw Arun and the appellants
inside Appellant No.2’s house. Neither of these witnesses claim to have          D
seen the deceased and the appellants at a public place. Thus, it would
not be illogical to infer that there was no independent witness to this
occurrence. Further, the deposition of both PW-3 and PW-4 seems natural
and nothing has been adduced in their cross-examination for us to
disbelieve their testimonies.
                                                                                 E
       34. The Counsel for the Appellants further assailed the last seen
theory and submitted that even if the deposition of PW-3 was considered
true, he had seen Arun in the company of the appellants on 09.04.1987,
which was two days before the discovery of the dead body. It was, thus,
argued that the intervening time period between the two events could
not rule out the possibility of intervention by a third party and as such        F
there wasn’t a continuous chain of circumstances. While this argument
seems attractive at the first instance, but, when considered in the light of
testimonies made by the independent witnesses PW-6 and PW-8, it stands
completely belied. The Prosecution case is that both the Appellants
committed the murder on the night of 09.04.1987. PW-8, who discovered            G
the body of Arun on 11.04.1987, deposed that he had heard rumors about
the dead body the previous night itself, however, on account of it being
dark and a forested area, he was only able to proceed to the spot the
next day. Given that the body was lying on the spot at least since
10.04.1987, the instant crime could have been committed on or before
                                                                                 H
932            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     10.04.1987. The medical evidence in the present case further braces
      the prosecution story. PW-6, the Doctor, examined the body of the
      deceased on 12.04.1987. In his opinion, the time elapsed since the death
      of Arun was 36 to 72 hours. Thus, the medical evidence fully corroborates
      the prosecution story of the murder having being taken place on
      09.04.1987. We also note that the Courts below have dealt with this
B
      issue elaborately and have held that the murder of the deceased indeed
      took place on 09.04.1987. We see no reason to take a contrary view.
             35. Counsel for the State appears to be right in relying upon the
      decision of this Court in Kashi Ram (Supra) to assert that once the fact
      of last seen is established, the Accused must offer some explanation as
C     to the circumstances in which he departed the company of the deceased.
      This position of law, as covered under section 106 of the IEA, was duly
      considered in the case of Satpal Singh (Supra), wherein, this Court
      clarified that if the accused fails to offer any plausible explanation, an
      adverse inference can be drawn against the accused. In the instant case
D     also, Appellant No.1 has been unable to offer any explanation as to
      circumstances in which he departed from the company of the deceased.
             36. As regard to the reliability of the depositions of PW-10 to
      PW-14, the primary contention is that except PW-12, none of the other
      witnesses were able to identify the present appellants. It was further
E     contended that the testimony of PW-12 seems doubtful as it was highly
      improbable that the witness was able to see Appellant No.2 through the
      light of a lamp. Assuming that the depositions of PW-10, PW-11, PW-13
      and PW-14 do not add much value to the case in hand, the question
      whether PW-12 could or could not identify Appellant No.2 is purely a
      factual issue and courts below have taken a concurrent view in relation
F     thereto. Suffice to say that PW-12 was able to identify Appellant No.2
      because of the chicken-pox marks on his face. Even in the initial
      statement recorded by the police, PW-12 had maintained that one of the
      two persons who he had interacted with on the night of 09.04.1987, had
      chicken-pox scars on his face.
G            37. Upon considering the prosecution evidence in its entirety and
      having meditated on the grounds raised by the appellants to every possible
      extent, we find no reason to disbelieve the prosecution version of last
      seen theory against the appellants.
            (ii) Motive
H
   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                                933
                 [SURYA KANT, J.]

       38. If motive in a case is attributed to an accused(s) and thereafter    A
proved, the probability of the crime being committed by the said accused
is intensified. It is for this reason, that in cases of overwhelming
circumstantial evidence, proof of motive will be an important piece of
corroborative evidence, as well as, form a vital link in the chain of
evidence.
                                                                                B
        39. The motive attributed to the appellants in this case is that they
murdered the deceased because he was allegedly having an illicit affair
with Rita, sister of Appellant No.1. While none of the witnesses have
specifically deposed about the deceased having an affair with Rita, the
motive, as alleged, does find some corroboration in the deposition of
PW-1, PW-3A, and PW-16. It is revealed from the testimony of                    C
PW-3A, that initially there were cordial and friendly relations between
the 1st Appellant and deceased’s family but the same became sour after
the month of February. PW-1 who is a fellow villager has corroborated
the testimonies of PW-3A. PW-16 has categorically deposed that a
Panchayat had been called in regards to the illicit relationship of the         D
deceased with Rita.
       40. The fact of the deceased having an affair with the sister of
Appellant No.1 has of course not been established beyond doubt but the
factum of calling Panchayat so that the issue does not spiral out of control
does suggest that Appellant No.1 carried a motive to eliminate the              E
deceased. We may not lose sight of the fact that the events had occurred
in the year 1987, when the rural Indian society was irrepressibly
conservative, and even the slightest rumor of extra-marital affairs could
flare-up tensions. Considering these ground realities, the Trial Court, in
our opinion correctly recorded that the motive as alleged had been
sufficiently proved by the prosecution. We also note, that the Counsel          F
for Appellants has not mounted any substantial challenge on the point of
motive, and as such, we see no reason to interfere with the indictment of
Appellant No.1 on the point of motive.
      (iii)   False information provided by Appellant No.1 and his
              subsequent conduct.                                               G
       41. We may now briefly consider the false information provided
by Appellant No.1 to PW-1 and PW-5. Both of these witnesses
individually met Appellant No.1 on 10.04.1987 and both of them enquired
about the whereabouts of Arun. Appellant No.1 lied to PW-1 and told
                                                                                H
934             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     him that after viewing the Cinema, Arun alone had proceeded to Amwa
      whereas Appellant No.2 had gone to visit Dopta. Even more curiously,
      Appellant No.1 informed PW-5 that Arun had left for Delhi. It is clear to
      us that the false information provided by the first appellant was an attempt
      to hide his guilt by de-railing the search efforts that were being conducted.
      Appellant No.1 thereafter absconded and surrendered before the court
B
      only after coercive measures were taken. We are, thus, inclined to agree
      with the State Counsel that the false information given by Appellant
      No.1 and his post occurrence conduct is relevant to prove an additional
      link in the chain of incriminating circumstances.
             42. There is, however, a qualitative difference in the evidence led
C     by the prosecution to prove charges against Prakash Mahto (Appellant
      No.2). The prosecution’s case is that it was the 1st Appellant (Surajdeo
      Mahto) who allured the deceased and persuaded him to accompany the
      said appellant to watch cinema. It is neither their case nor have the
      prosecution witnesses deposed that Appellant No. 2 was involved in the
D     persuasive abduction of the deceased from his house on 05.04.1987.
      This has to be seen in the context of motive behind the offence. It is
      proved on record that the 1st Appellant had an axe to grind against the
      deceased who was allegedly having illicit relationship with his sister.
      There is no motive alleged or proved which would have swayed Appellant
      No. 2 to commit murder of the deceased. Still further, prosecution has
E     led no evidence that there was any meeting of mind between the 1st and
      the 2nd Appellant on or before 08.04.1987, or that they hatched any
      conspiracy together to commit the murder of Arun. There is also no
      evidence on record to suggest that Appellant No.1 disclosed his intention
      to commit murder of deceased Arun to the 2nd Appellant.
F            43. It is true that the prosecution has led evidence comprising the
      statements of PW-3 and PW-4 who had lastly seen the deceased alive
      on 09.04.1987 in the company of the 1st and the 2nd Appellants. However,
      until and unless the last seen theory is substantiated by other circumstantial
      evidence to constitute an unbreakable chain of events, the conviction
G     cannot rest solely on the basis that the 2nd Appellant was also present
      along with Appellant No.1 in the company of the deceased when they
      were seen together on 09.04.1987.
            44. It is pertinent to mention that some incriminating material
      consisting of one pair of slippers, one handkerchief, a knife, jerrycan and
H     two lungis were found and seized at the place of occurrence. While
   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                                  935
                 [SURYA KANT, J.]

PW-16, namely, father of the deceased has identified one of the seized            A
lungis belonging to Appellant No.1, none of the recovered articles have
been attributed to the 2nd Appellant. The only substantial evidence against
the 2nd Appellant is that he too was in the company of the deceased and
Appellant No.1 on 09.04.1987, i.e., they were seen together lastly. Even
if we were to presume that the deposition of PW-12 identifying Appellant
                                                                                  B
No.2 on the night of 09.04.1987 to be true, such evidence, may create a
strong suspicion in respect of involvement of the 2 nd Appellant in the
murder of the deceased, but then, mere suspicion cannot be accepted as
impeccable evidence to prove his guilt beyond any doubt.
       45. Further, there is post occurrence circumstantial evidence led
against Appellant No.1, namely, that he did not disclose the whereabouts          C
of the deceased and then surreptitiously disappeared from the scene till
he surrendered in Court. There is no such allegation of being evasive or
absconding post occurrence levelled against Appellant No.2. There are,
thus, missing links in the prosecution case so far as the 2nd Appellant is
concerned. Consequently, and for the reasons aforestated, we find that            D
the case of Prakash Mahto (Appellant No.2) is distinguishable from that
of Surajdeo Mahto (Appellant No.1) and the prosecution has not been
able to prove the guilt of 2nd Appellant beyond the pale of doubt. The
2nd Appellant is, thus, entitled to the benefit of doubt.
       B. Appellant No.1’s plea of Juvenility                                     E
       46. There is no gainsaying that section 7-A of Juvenile Justice
(Care and Protection of Children) Act, 2000 [in short, “JJ Act”] sets out
the procedure to be followed by a court to determine the claim of juvenility.
Its proviso enables to raise the claim of juvenility before “any court” and
at “any stage”, even after the final disposal of the case. However, in            F
order to take advantage of the aforesaid provision, there lies an initial
onus on the accused to produce some cogent evidence to prima facie
establish the juvenility on the date of commission of the offence.
       47. In the instant case, the 1st Appellant has raised plea of juvenility
for the first time before this Court. He has placed before us a School            G
Leaving Certificate along with an Admit Card issued by the Bihar School
Examination Board, wherein, Appellant No.1’s date of birth is claimed
to be 01.03.1970. It has been asserted that the 1st Appellant was 17
years old at the time of occurrence. Learned counsel for the appellants
has also drawn our attention to the decision in Abuzar Hossain (Supra),
                                                                                  H
936            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     wherein, this Court exhaustively dealt with the provisions and the scope
      of JJ Act and held as under:
            “39.3. As to what materials would prima facie satisfy the court
            and/or are sufficient for discharging the initial burden cannot
            be catalogued nor can it be laid down as to what weight
B           should be given to a specific piece of evidence which may be
            sufficient to raise presumption of juvenility but the documents
            referred to in Rules 12(3)(a)(i) to (iii) shall definitely be
            sufficient for prima facie satisfaction of the court about the
            age of the delinquent necessitating further enquiry under Rule
            12. The statement recorded under Section 313 of the Code is
C           too tentative and may not by itself be sufficient ordinarily to
            justify or reject the claim of juvenility. The credibility and/or
            acceptability of the documents like the school leaving
            certificate or the voters’ list, etc. obtained after conviction
            would depend on the facts and circumstances of each case
D           and no hard-and-fast rule can be prescribed that they must
            be prima facie accepted or rejected….”
                                                        (Emphasis Supplied)
             48. When the documents relied upon by 1st Appellant are analysed
      in the backdrop of these settled principles, we find that the same do not
E     inspire any confidence. The name of Appellant No.1 does not appear on
      the documents, instead these belong to one ‘Suryadev Prasad’. It is
      nearly impossible to verify the veracity of the two documents relied
      upon by Appellant No.1 at this highly belated stage. Further, the record
      of the Trial Court does suggest that the name of the 1st Appellant is
F     ‘Surajdeo Mahto’ and not ‘Suryadev Prasad’. In the absence of any
      cogent material indicating that the subject – documents pertain to 1 st
      Appellant only, no case to hold any fact-finding enquiry is made out.
      Consequently, we decline to place reliance on the documents in question
      and reject the plea of juvenility raised by the 1st Appellant.

G           Conclusion
            49. In light of the above discussion, the instant appeal is partly
      allowed. While the conviction and sentence of Surajdeo Mahto (Appellant
      No.1) is upheld and appeal qua him is dismissed, the 2nd Appellant
      (Prakash Mahto) is acquitted of the charges. The bail bonds furnished
H
   SURAJDEO MAHTO AND ANR. v. THE STATE OF BIHAR                            937
                 [SURYA KANT, J.]

by the 1st Appellant are cancelled and he is directed to surrender to       A
undergo remainder of the sentence. The 2nd Appellant’s bail bonds are
discharged.


Nidhi Jain                                         Appeal partly allowed.
                                                                            B




                                                                            C




                                                                            D




                                                                            E




                                                                            F




                                                                            G




                                                                            H