JUDGMENT P.G. Agarwal, J. 1. Heard Mr. Ramani Mohan Choudhury, learned Amicus Curiae and Mr. F.H. Laskar, learned PP. 2. This appeal is directed against the Judgment and Order dated 29.07.98 passed by the Sessions Judge, Golaghat in Sessions Case No. 68/94 (GR Case No. 1/93). 3. The two accused Appellants, namely Umesh Karmakar and Pa Mazhi (A1 A2) were tried by the Sessions Judge, Golaghat in Sessions Case No. 68/94 for alleged commission of an offence under Section 302/ 34 IPC and 201 IPC and on conclusion of the trial they were convicted under Section302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 500/- each in default further R.I. for three years each. The two accused Appellants were also convicted under Section 201 IPC and sentenced to imprisonment for three years and to pay a fine of Rs. 100/- each in default further RI for six months. Both the sentences were ordered to run concurrently. 4. The prosecution allegation in brief is that on 30.12.92 the two accused Appellants namely, Pa Mazhi and Umesh Karmakar came to the house of the informant Smti. Junu Mazhi and took her husband Phusha Mazhi for collection of timber at around 7 P.M. from a nearby place and the two accused persons returned after some time without Phusha Mazhi and on enquiry they gave some vague answers. When the husband of the informant did not return home, she informed the local VDP people and told them about the previous evenings happening. The accused Umesh Karmakar was picked up by the VDP people and on interrogation it was disclosed that he along with Pa Mazhi had killed the deceased by hacking and the dead body was thrown in Dhansiri River. It may be mentioned here that Pa Mazhi is the own younger brother of the deceased. We find that after filing of the FIR, police arrested the accused persons and on being led by police, the dead body was recovered. The Post Mortem was conducted by Dr. Fazul Haque (PW 9). The doctor found the following injury on the person of the deceased: Cut injury on right side of the neck, size 4" x 3" x 2" muscles, veins and articles on the right side of the neck were severed. Others organs found healthy. 5. The Post Mortem was conducted by Dr. Fazul Haque (PW 9). The doctor found the following injury on the person of the deceased: Cut injury on right side of the neck, size 4" x 3" x 2" muscles, veins and articles on the right side of the neck were severed. Others organs found healthy. 5. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased. The death of the deceased as a result of the sharp cutting injury has not been disputed and as a matter of fact there is other oral evidence regarding the death of the deceased Pusa Mazhi. 6. In the present case, we find that there is no eye witness to the occurrence, i.e., none of the prosecution witnesses had seen that the deceased being assaulted or killed. The entire prosecution case rests on the circumstantial evidence as well as the extra judicial confession of the two accused persons. Five golden principles of circumstantial evidence were laid down by the Apex Court in the case of Hanuman v. State of M.P. : AIR 1952 SC 343 and this has been followed time and again and rested in the case of Sharad v. State of Maharasthra : AIR 1984 SC 1622 , Dhananjay Chatterjee v. State of West Bengal : JT (1994) 1 (SC) 33 and Bodhraj v. State of J and K : AIR 2002 SC 3164. The five principles enunciated by the Apex Court are as follows: 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra : (1973) 2 SCC 793 : AIR 1973 SC 2622 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and dividing vague conjectures from sure conclusions. 2. 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3. The circumstances should be of a conclusive nature and tendency. 4. They should exclude every possible hypothesis except the one to be proved and, 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. These five golden principles, if we may say so constitute the Panchsheel of the proof of a case based on circumstantial evidence. 7. On going through the evidence on record, we find that the informant Junu Mazhi has been examined as PW-10. She is the wife of the deceased and she has deposed that she and her husband used to work in the house of Amulya Goswami (PW-6) and on the date of occurrence while she was preparing meal, the accused persons came and asked her to serve them. While she was serving rice to them, her husband arrived and thereupon the two accused persons asked her husband to accompany them for collection of timber from near a brick-kiln of the village as it needs three persons to carry the same. Her husband accompanied them without taking the meal and after two hours the two accused Appellants returned back without her husband. On enquiry they told her that he will be coming after some time. She spent the night waiting for her husband but her husband did not return. In the morning she went to her employer's house as well as the house of Bhadreswar Bora, the VDP Secy. (PW 4) and informed them about her missing husband and the fact that the two accused persons came to her house on the previous night. As instructed by the VDP Secy., the villagers brought the accused Appellant Umesh Karmakar and the other accused Pa Mazhi was not traceable. (PW 4) and informed them about her missing husband and the fact that the two accused persons came to her house on the previous night. As instructed by the VDP Secy., the villagers brought the accused Appellant Umesh Karmakar and the other accused Pa Mazhi was not traceable. Umesh Karmakar was brought before the VDP Secretary's house and on interrogation by the villagers, the accused confessed his guilt and told them that he along with Pa Mazhi had killed the deceased near the brick-kiln by hacking him with a dao and after killing the deceased was thrown on the Dhansiri river. Umesh was brought before police. The other accused Pa Mazhi was brought by the villagers as the latter was hiding. The two accused persons led police to the place where the incident took place and on being shown by them, the dead body was recovered from the river. 8. Atul Ch. Goswami (PW-1), Amulya Ch. Goswami (PW-6), Bhadreswar Bora (PW-4) and Lakhinath Saikia (PW-3) are the co-villagers. They gave all deposed about the fact and as being reported by PW-10 about taking away of her husband on the previous night and the subsequent confession of guilt by the accused persons before the villagers and the discovery of the dead body on being led by the accused persons to the place of incident and Mat. Ext. 1 and 2 are the seized weapon of assault. 9. In this case, we find that the broad facts on record had not been seriously challenged by the defence except giving of some stray suggestions by them. Moreover, the VDP people are responsible people of the village and as a matter of fact they had no animus with the accused persons. They are all independent and responsible villagers. The deceased used to work in the house of PW-6 and accused in the house of PW-3 as ploughman. In the present case, we find that the prosecution has been able to establish the following suggestions by leading cogent and reliable evidence: 1. The two accused Appellants came to the house of PW-10 and took away her husband on the pretext of carrying and collection of timber (last seen together). 2. The accused persons returned back to the house of PW-10 without the deceased. 3. The two accused persons gave false explanation for non returning of the deceased. 4. The two accused Appellants came to the house of PW-10 and took away her husband on the pretext of carrying and collection of timber (last seen together). 2. The accused persons returned back to the house of PW-10 without the deceased. 3. The two accused persons gave false explanation for non returning of the deceased. 4. The accused Appellant Pa Mazhi being the brother of the deceased instead of searching his missing brother was hiding himself. 5. The accused persons led police to the bamboo groove for discovery and seizure of the weapon of assault, i.e., the dao and discovery of fact under Section 27 of the Evidence Act. 6. The accused persons had made false statement as regards the death of the deceased. 7. Recovery of the dead body at the instance of the accused persons. 8. Extra Judicial confession made before the villagers. 10. In the case reported in : AIR 1966 SC 1622 and (2000) 1 SCC 471 , the following suggestions were considered sufficient by the Apex Court for maintaining the conviction: 1. The deceased last seen in the company of the accused. 2. The accused making contradictory statement as to where the deceased was. 3. Recovery of the dead body at the instance of the accused. 11. In a later case of Both Raj alias Bodha and Ors. v. State of Jammu and Kashmir : AIR 2002 SC 3164 the theory of last seen together was further explained by the Apex Court as follows : The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 12. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 12. In a recent case of Sahabuddin v. State : (2003) 1 SCC 534 the Apex Court further held that in the case of last seen together, it is obligatory on the accused persons to explain as to when they parted company. PW-10 has categorically stated that the two accused persons came to her house and took the deceased with them. Thereafter the deceased was not seen alive by any manner. Hence, it was for the accused persons to explain as to whether they parted company. The accused persons tried to explain the death of the deceased by stating that while he was passing the riverbed, he slipped and fell down in the river and died. This plea was rightly rejected by the trial court as this is not a case of aphasia. On the contrary, this is a case of homicidal death due to cutting of the neck which obviously cannot rule out any case of accidental death on the river bank. 13. Further, when the accused persons consoled/assured PW-10 that her husband will be returning back soon, they knew that her husband is not alive and will not return. Thus, the accused persons gave a false explanation as regards the death of the deceased. In the case of Md. Mahiuddin v. State of Bihar : (1999) 1 SCC 252 the Apex Court held that as regards the conduct of the accused and making a false statement or explanation, the offence can be proved by circumstantial evidence also. At this stage we are tempted to quote the following observations of the Apex Court in the case of Both Raj v. State of J and K (supra) as follows: Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 14. Besides the circumstantial evidence as stated above, we find that extra judicial confession of the two accused persons before the villagers including PW-10 disclosed that accused Umesh Karmakar admitted his guilt and told them that he along with the co-accused Pa Mazhi had killed the deceased by hacking him and the dead body was thrown on the Dhasiri river. Accused Pa Mazhi also confessed his guilt subsequently before the villagers and made similar statement. As stated above, PWs 1, 3, 4, 6 and 10 had all deposed that about the extra judicial confession made by the two accused Appellants before the villagers. 15. The learned Counsel for the Appellants has submitted that the statement, if any, was made in duress and such statement can not be relied upon. PW's 1, 3 and 4 have denied the allegation of assault etc. The fact that some pressure was put or some slapping was made to the accused can be read from the statement of PW-10 that at the first instance accused Umesh Karmakar denied any knowledge about the death of the deceased but when he was beaten up, he specifically narrated as to how the deceased was done to death. However, we find that the above aspect of the matter is immaterial in the present case in view of the categorical statement of the accused Umesh Karmakar under Section 313 Code of Criminal Procedure The accused has admitted that he was working as a ploughman and he used to say about the incident as follows: I did not throw the dead body in Dhansiri River. Accused Pa Mazhi did that. I had been at Lakhi Saikia's house. At 4 P.M. accused Pa Mazhi had called me in from Lakhi Saikia's house. Pa Mazhi and I went to their house. Pa Mazhi asked his elder brother Pusha Mazhi to accompany them to fetch timber. Accused Pa Mazhi did that. I had been at Lakhi Saikia's house. At 4 P.M. accused Pa Mazhi had called me in from Lakhi Saikia's house. Pa Mazhi and I went to their house. Pa Mazhi asked his elder brother Pusha Mazhi to accompany them to fetch timber. The letter agreed and along with him. Pa Mazhi and I were advancing towards the sugarcane field of Atul Goswami. The time then was 7 P.M. Pusha Mazhi was in the lead, then Pa Mazhi and then I As we were advancing and reached a hillock and jungle near the house of Biren Bora, accused Pa Mazhi hacked his brother in the neck with a dao and killed him. Later Pa Mazhi dragged his brother's body away and threw the same in Dhansiri River. I did not say anything out of fear. 16. The accused has also admitted while answering the question that he did show the dead body to police. Thus, we find from the statement of the witnesses that the circumstantial evidence has been brought in a complete chain and it leads to only one conclusion that it was the accused Appellants Umesh Karmakar and Pa Mazhi and none else who killed the deceased and thereafter the dead body was thrown on the Dhansiri River. Man may lie but the circumstances would not. In the present case, circumstantial evidence is clinching and as we know, prosecution is not required to meet each and every hypothesis put by the accused. In the instant case, the hypothesis put by the accused were all purported and imaginary and it cannot form any basis. PW-10 has categorically stated that the river is situated at a distance of one mile from her house and her husband does not use to go to the river to answer nature's call. The witness has categorically stated that both the accused persons took her husband and when her husband did not return home, she reported the matter to the other villagers including the VDP Secretary on the next day. Thus, there is no delay in informing the matter and thereafter the dead body was recovered at the instance of the accused persons. 17. In view of what has been stated above, we hold that the prosecution has been able to bring home the charge against the two accused Appellants and the order of conviction and sentence needs no interference. Thus, there is no delay in informing the matter and thereafter the dead body was recovered at the instance of the accused persons. 17. In view of what has been stated above, we hold that the prosecution has been able to bring home the charge against the two accused Appellants and the order of conviction and sentence needs no interference. The order of conviction and sentence stands affirmed. There is no merit in this appeal and the appeal stands dismissed. 18. Before parting we would like to observe that the substantive sentence imposed by the trial court that in the matter of default in payment of fine, the imprisonment awarded seems to be on the higher side. We, therefore, provide that in default of payment of fine of Rs. 500/- for the offence under Section 302 IPC, the accused Appellants shall undergo further imprisonment for one month each; likewise for the offence under Section 201 IPC in default of payment of fine of Rs. 100/- the accused Appellants shall undergo further imprisonment for 15 days each. Both the sentences shall run concurrently. Appeal dismissed