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2010 DIGILAW 182 (GAU)

Swapan Ch. Dey v. State of Tripura

2010-03-09

C.R.SARMA, UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The appellant of the instant appeal was convicted for commission of an offence under Section302 of the Indian Penal Code (for short 'IPC') and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigourous imprisonment for one year by the learned Addl. Sessions Judge, South Tripura, Udaipur on 17-1-2004 in Case No. ST 32 (ST/U) of 2003. He was prosecuted for committing murder of one Smti Mina Rani Deb, wife of P.W. 6, Shri Rakhal Ch. Deb in between 9 a.m. of 26-5-2000 and 3 p. m. of 27-5-2000 A. D. at Bankumari within R.K. Pur Police Station. The deceased and the accused appellant were the inhabitants of the same locality namely, Chandrapur Colony No. 2 within R.K. Pur Police Station. 2. In the morning of 26-5-2000 at about 9 a.m. while deceased Mina Rani went to the tube well to fetch water along with other women of her locality, the accused appellant Swapan Chandra Dey appeared there and told her that her goat had gone to the forest. Getting the said information deceased Mina Rani then and there rushed towards the forest with a nylon rope in her hand in search of her goat. Accused appellant was also found to follow the deceased and since then the deceased was missing. As she was not traceable till the noon of that day, her husband (P.W. 6) and other villagers started searching her in the nearby jungle of Bankumari Reserve Forest and on the following day at about 3 p.m. her dead body was found hanging from a small sal tree in sitting position. Accordingly, police was informed over telephone and in response thereto, P.W. 8, Shri Saraj Bhattacharjee, a Sub-Inspector of R. K. Pur Police Station rushed to the spot and P.W. 6, Rakhal Ch. Deb, husband of the deceased lodged a written information to P.W. 8 who ultimately prepared the inquest report in respect of dead body of the deceased in presence of other witnesses and thereafter, sent the body of the deceased to Tripura Sundari District Hospital morgue for postmortem examination to ascertain the cause of death. The aforementioned information lodged by P.W. 6 was registered as a UD case under Section 174 of the Code of Criminal Procedure (for short 'Cr.P.C.'). The aforementioned information lodged by P.W. 6 was registered as a UD case under Section 174 of the Code of Criminal Procedure (for short 'Cr.P.C.'). P.W. 3, Shri Kanu Lal Bhowmik, who was a medical officer of the aforesaid Hospital at the relevant time conducted the autopsy and submitted his report wherein he stated that the death of the deceased was caused due to asphyxia resulting from ante mortem strangulation which was homicidal in nature and there were sign of ante mortem sexual activities on the sex organ of the deceased. On receipt of the autopsy report, P.W. 9, Shri Kishore Kr. Das, a Sub-Inspector of Police, who was earlier one of the investigating officers in the aforementioned case, lodge first information report on 21-8-2002 with the Officer-in-Charge of R.K. Pur Police Station against unknown person and the FIR was registered as R.K. Pur P.S. Case No. 219 of 2002 under Sections 376 and 302 of IPC and P.W. 10, Shri Tapan Chakraborty was directed for holding investigation regarding the death of deceased Mina Rani Deb. 3. In course of investigation, P.W. 10 visited the place of occurrence, prepared the hand sketch map of the site from where the dead body of the deceased was recovered and examined the material witnesses. At the conclusion of the investigation, P.W. 10 submitted charge sheet under Sections 376, 302 and 201 of I.P.C. against the accused-appellant showing him as absconder. The accused-appellant was ultimately arrested and produced before the learned Chief Judicial Magistrate, South Tripura, Udaipur on 27-6-2003 and he was remanded to jail custody till 8-7-2003. Thereafter, the learned CJM committed the case for trial before the learned Sessions Judge, South Tripura, Udaipur the offence being exclusively triable by the Court of Session. On receipt of the case, the learned Sessions Judge transferred the same to the learned Addl. Sessions Judge Udaipur, South Tripura for disposal after proper trial who upon hearing the learned Counsel of the parties as well as the accused-appellant framed charge under Section 302, I.P.C. against the accused-appellant to which he pleaded not guilty. It is to be named that on 8-7-2003, the learned Addl. Sessions Judge released the accused-appellant on bail and he was all along on bail till the date of delivery of the impugned judgment, i.e. on 17-1-2004. 4. It is to be named that on 8-7-2003, the learned Addl. Sessions Judge released the accused-appellant on bail and he was all along on bail till the date of delivery of the impugned judgment, i.e. on 17-1-2004. 4. To bring home the guilt of the accused-appellant, prosecution examined as many as ten witnesses including three police officials (P.Ws. 8, 9 and 10) and one medical officer (P.W. 3) who performed the post mortem examination. 5. On completion of recording of evidence of the witnesses, the accused-appellant was examined under Section 313, Cr.P.C. and he denied the allegations and declined to adduce any evidence in his defence. Considering the materials on record, the learned Addl. Sessions Judge recorded the conviction and sentences against the accused-appellant as stated supra. 6. Being aggrieved by the said judgment and order of conviction and sentence, the accused-appellant has come up before this Court with the instant appeal. 7. To arrive at the aforesaid conclusion that the murder of the deceased was committed by the accused-appellant, the learned trial Court mainly relied upon the evidence of P.W. 1, Smt. Purnima Shil in whose house the accused-appellant came for taking fire as well as water, P.W. 2, Smt. Basana Banik, P.W. 4, Smt. Ratna Dey, P.W. 5, Smt, Pratima Saha who were the neighbours of the deceased and saw the accused-appellant to follow the deceased while she was proceeding towards jungle in search of her goat and P.W. 6 Shri Rakhal Ch. Deb, husband of the deceased Minarani who lodged the information which was registered as UD Case. 8. We have heard Mr. P.K. Biswas, learned Counsel for the accused-appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor for the respondent State. 9. For proper appreciation of the argument advanced by the learned Counsel appearing for the parties and to examine the correctness of the impugned judgment and order, it would be proper for us to discuss the evidence of prosecution witnesses upon which reliance was placed by the learned trial Court. 10. In the present case, there is no eye witness of the alleged murder of deceased Minarani. The entire prosecution case is based on circumstantial evidence and 'last seen together'. 11. 10. In the present case, there is no eye witness of the alleged murder of deceased Minarani. The entire prosecution case is based on circumstantial evidence and 'last seen together'. 11. P.W. 1, Smt. Purnima Shil made her statement before the learned trial Court on 29-7-2003 wherein she deposed that about three years back on the 12th day of Jaistha (Friday) at about 3 p.m. while she was in her residence, the accused-appellant in abnormal state of appearance appeared infront of the gate of her house and asked her to serve him drinking water and fire. He also offered the some money showing something in his fist, but she (P.W. 1) refused to take the money asking him as to whether she owed any money from him and thereafter, the accused-appellant left the place. She also stated that accused-appellant also alerted her not to disclose to anybody about his appearance infront of her gate and taking fire and water from her. Thereafter, she served him fire and drinking water. After some time, when her husband returned to home, she narrated the aforesaid story to him. She further deposed that she heard from her neighbouring people that the dead body of the deceased Minarani was found on the following day at about 3 p.m. in the jungle situated on the eastern side of her house. 12. P.W. 2, Smt. Basana Banik, a neighbour of the deceased and her husband who used to collect fire wood from the jungle made her statement before the learned trial Court on 29-7-2003 and she stated therein that about three years back on the 12th day of Jaistha at about 10 a.m. while she and other neighbouring women were gossiping then deceased Minarani appeared and asked whether she (P.W. 2) would go to the jungle to collect firewood, which she replied in the negative. At that time, the accused-appellant appeared there and told the deceased that her goat was going towards the jungle. Getting the said information, deceased Minarani proceeded towards east where the jungle was situated with a rope in her hand. She also noticed the accused-appellant to proceed towards east along the way by which deceased Minarani proceeded. At that time, the accused-appellant appeared there and told the deceased that her goat was going towards the jungle. Getting the said information, deceased Minarani proceeded towards east where the jungle was situated with a rope in her hand. She also noticed the accused-appellant to proceed towards east along the way by which deceased Minarani proceeded. On the same day at about 12.30/1 p.m. she heard that deceased Minarani was not traceable and in the evening of the same day she met P.W. 6, husband of the deceased and narrated the aforesaid fact to him. On the following day at about 12 noon she heard from her neighbours that one Sandhya Rani Das in course of searching found out the dead body of deceased Minarani at a distance of six cubits from the Bankumari tree and at about 3.30 p.m. she along with other villagers went to the spot and noticed the dead body of the deceased in sitting position leaning with a shal tree. She further stated in her evidence that since then accused-appellant was not found available in the village. She also stated that she was examined by the police two years back. 13. P.W. 3, Shri Kanu Lal Bhowmik, the medical officer, who conducted the autopsy over the dead body of the deceased on 28-5-2000 while he was working as medical officer at Tripura Sundari District Hospital, Udaipur in his statement deposed that the injuries found in the dead body of the deceased Mina Rani were ante mortem strangulation which was homicidal in nature and there were sign of ante mortem sexual activities on the sex organ of the deceased and the death of the deceased caused due to asphyxia resulting from ante mortem strangulation which was homicidal in nature and the age of the death was within 36 hours. This witness initially mentioned in his report the name of the deceased as Bina Rani Deb, which he subsequently found as wrong and ultimately corrected the same. 14. P.W. 4, Smt. Ratna Dey deposed before the learned trial Court almost in the same tune of P.W. 2. This witness initially mentioned in his report the name of the deceased as Bina Rani Deb, which he subsequently found as wrong and ultimately corrected the same. 14. P.W. 4, Smt. Ratna Dey deposed before the learned trial Court almost in the same tune of P.W. 2. In her statement, P.W. 4 deposed that about three years back on the 12th day of Jaishtha at about 10 a.m. when she and deceased Mina Rani together went to the tube well to fetch water, the accused-appellant who is also from their locality told Mina Rani that he had seen her (Mina Rani) goat to proceed towards Bankumari jungle. Thereafter, she and Minarani returned home with water and again Mina Rani left for Bankumari Jungle in search of her goat. She also noticed the accused-appellant to proceed along the same way the deceased proceeded. On the same day at about 12 noon, P.W. 6, the husband of the deceased returned home and finding his wife not in the house searched for her in her (P.W. 4) house and accordingly, she told him the fact of Mina's proceeding towards the jungle in search of her goat as informed by the accused-appellant. On the following day at about 3 p.m. she heard from the people that the dead body of Mina Rani had been found near Bankumari tree and accordingly, she also went there and found the dead body of Mina in sitting position leaning with the tree and her (deceased) silver chain and broken conch bangle were found lying in the nearby side of her dead body. In her cross-examination, as asked by the defence, this witness stated that she stated to the police that she herself and deceased Mina Rani went together to fetch water from the tube well when accused-appellant Swapan Dey told Mina Rani that her goat proceeded towards the jungle and Mina Rani after returning home with water proceeded towards the jungle with a rope in her hand. But such statement was not found in her Section 161, Cr.P.C. statement. In her cross-examination she also stated that she was examined by the police after about three years of the incident and within that time she never met the police officer. 15. P.W. 5, Smt. Pratima Saha in her deposition stated almost the same facts like P.Ws. But such statement was not found in her Section 161, Cr.P.C. statement. In her cross-examination she also stated that she was examined by the police after about three years of the incident and within that time she never met the police officer. 15. P.W. 5, Smt. Pratima Saha in her deposition stated almost the same facts like P.Ws. 2 and 4 and when she was confronted with her statement recorded under Section 161, Cr.P.C., the statement as deposed by her before the learned trial Court was found missing. But the said omission has not got confirmation by the defence from the I.O. of the case. 16. P.W. 6, who lodged the information regarding the incident and which was registered as UD case stated that he was not in normal mood at the time of lodging the information as he was totally puzzled and bewildered for the death of his wife and the helplessness of his children. He took assistance from P.W. 7, Shri Uttam Banik who scribed the said information. He stated that while he returned home he was informed by his children that their mother had gone to jungle and he was also informed by P.W. 2 that she saw the accused-appellant to follow his deceased wife to the jungle. 17. P.W. 7, the scribe of the information lodged by P.W. 6 deposed that when the dead body of Mina Rani Deb was discovered at the request of the neighbours and P.W. 6, he wrote the information to the police, which was sent by P.W. 6. 18. P.W. 8, Shri Saroj Bhattacharjee is one of the I/Os. of the UD case who arrested the accused-appellant under Section 41 of Cr.P.C. on 2-6-2000 and forwarded him to the learned Chief Judicial Magistrate on the same day. P.W. 9, Shri Kishore Kumar Das is the another I/O. of the UD case who ultimately on 21-8-2002 lodged the formal FIR on receipt of the corrected autopsy report before the Officer-in-Charge of the police station who endorsed the case to P.W. 10, Shri Tapan Chakraborty for investigation. 19. Mr. Biswas, learned Counsel for the accused-appellant would contend that immediately after the incident, none of the witnesses except the I/O. stated anything before the police regarding the involvement of the accused-appellant in the alleged crime. 19. Mr. Biswas, learned Counsel for the accused-appellant would contend that immediately after the incident, none of the witnesses except the I/O. stated anything before the police regarding the involvement of the accused-appellant in the alleged crime. For the first time in the Court they stated the story of following the deceased Mina Rani by the accused-appellant while she was proceeding towards the jungle in search of her goat and as they were silent during last few years their evidence cannot be accepted without suspicion. It was duty of the witness, more particularly, the informant P.W. 6 to disclose the said fact immediately after the occurrence, but fact remains that the missing report lodged by P.W. 6 on 27-5-2000 before the police even did not indicate anything regarding involvement of the accused-appellant with the alleged crime. The statement of the witness against the accused-appellant after a long gap cannot be accepted as per law and the same has to be considered as an afterthought and improvement of the version/exaggeration of the prosecution story. 20. In support of his aforesaid contention, Mr. Biswas relied upon a decision of the Apex Court in the case of Radha Kumar v. State of Bihar (now Jharkhand) reported in (2005) 10 SCC 216 wherein the witnesses of that case were examined in the Sessions Court after several months of the date of the alleged occurrence and the witness indisputably had not disclosed the complicity of the appellant of that case in their statement made before the police. The Apex Court after taking note of the aforesaid fact stated, inter alia, 'No reason has been assigned by the prosecution for non-discloser of the name of the appellant before the police by these witnesses. This being the position, we are of the view that it would not be safe to place reliance upon the statement of these witnesses made for the first time in the Sessions Court after several months of the alleged occurrence without there being any reasonable excuse for not naming the accused before the police especially when the prosecution case has not been supported by the informant who also claimed to be an eyewitness. Ultimately the appeal was allowed by the Apex Court setting aside the conviction and sentence of the appellant of that case recorded by the learned trial Court. 21. Mr. Ultimately the appeal was allowed by the Apex Court setting aside the conviction and sentence of the appellant of that case recorded by the learned trial Court. 21. Mr. Biswas also placed reliance on another decision of the Apex Court in the case of Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors. reported in (2004) 10 SCC 583 : AIR 2004 SC 4607 : 2004 Cri LJ 3832. In that case two witnesses were examined by the investigating officer on 15-11-1985 whereas the incident happened on 13-11-1985, i.e. after two days of the alleged incident and no proper explanation was given by the investigating officer for such delay in recording the evidence of those witnesses. A Division Bench of the High Court of Gujarat on that count alone disbelieved the evidence of those witnesses and passed the order of acquittal. On appeal the Apex Court did not interfere with the order of acquittal passed by the High Court of Gujarat. In the instant case, delay of recording the evidence of prosecution witnesses like P.Ws. 2, 4, 5, 6 and 7 is more than two years. Therefore, it would not be proper for this Court to believe the statement of those witnesses, learned Counsel contended. 22. He further contended that had P.W. 2 seen the accused appellant to follow the de ceased while she was proceeding towards the jungle, P.W. 6 would have certainly mentioned the name of the accused appellant in the information which was registered as UD Case, but fact remains in the said information the name of the accused appellant is not there and omission of such an important fact affected the probabilities of the case which are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In support of his aforesaid contention, Mr. Biswas relied upon a decision of the Apex Court in the case of Ram Kumar Pande v. State of M.P. AIR 1975 SC 1026 , which has been subsequently followed by a Division Bench of this Court in the case of Laba Chandra Dutta and Ors. v. State of Tripura (2000) 2 GLR 104 : 2000 Cri LJ 1523. He also relied upon another decision of the Apex Court in the case of State of Orissa v. Mr. v. State of Tripura (2000) 2 GLR 104 : 2000 Cri LJ 1523. He also relied upon another decision of the Apex Court in the case of State of Orissa v. Mr. Brahmananda Nanda AIR 1976 SC 2488 wherein the Apex Court disbelieved the evidence of the witnesses only on the ground of disclosing the names of the assailants after about one and half years. He submitted that in the instant case the witnesses disclosed the name of the accused appellant after more than two years. Therefore, the evidence of P.Ws. should be disbelieved by this Court. 23. The next contention of the learned Counsel was that the absconsion by itself is not conclusive either of guilt or of a guilty conscience. A person may abscond even on account of fear of being involved in the offence or for any other allied reason. In support of this contention, he referred to the decision of the Apex Court in the case Thimma v. The State of Mysore reported in AIR 1971 SC 1871 and the case of Rahman v. The State of U.P. reported in AIR 1972 SC 110 wherein the Apex Court held '...absconding by itself is not conclusive either of guilt or of a guilt conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason'. He also placed reliance on the case of Matru alias Girish Chandra v. The State of U.P. reported in AIR 1971 SC 1050 wherein the Apex Court held that the act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. It cannot certainly be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused. The next decision relied on by the learned Counsel is Promode Das and Ors. v. State of Tripura 2009 (2) GLT 90 : 2009 Cri LJ 1 wherein a Division Bench of this Court in which one of us was a party (Saha, J.) took note of the aforesaid cases. 24. Mr. The next decision relied on by the learned Counsel is Promode Das and Ors. v. State of Tripura 2009 (2) GLT 90 : 2009 Cri LJ 1 wherein a Division Bench of this Court in which one of us was a party (Saha, J.) took note of the aforesaid cases. 24. Mr. Biswas finally contended that for convicting a person on the basis of the circumstantial evidence, the prosecution must establish all pieces of incriminating circumstances by its evidence and such evidence must form a complete chain of events from which no conclusion can be there except the guilt of the accused. The circumstances cannot be on any other hypothesis or suspicion. The suspicion, however, grave it may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilt only on the basis of the circumstantial evidence and the last-seen theory would come to play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In the instant case, from the prosecution evidence it is evident that the way by which the deceased proceeded towards the jungle, it is also the way to the land of the accused appellant. Therefore, it cannot be ruled out that on the alleged date and time the accused appellant was going to his own land. Furthermore, the accused appellant was allegedly seen on 26-5-2000 at about 10 a.m. to follow the deceased towards the jungle, but the dead body of the deceased was found on the following day at about 3/3.30 p.m. and as such it also cannot be ruled out that within that time some other persons might have visited the said jungle where the dead body was found who might be the author of the death of the deceased. In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in the case of Ramreddy Rajesh Khanna Reddy and Anr. v. State of A.P. reported in (2006) 10 SCC 172 : AIR 2006 SC 1656 . 25. Per contra, Mr. Ghosh, learned Addl. Public Prosecutor while supporting the impugned judgment contended that from the evidence of P.Ws. v. State of A.P. reported in (2006) 10 SCC 172 : AIR 2006 SC 1656 . 25. Per contra, Mr. Ghosh, learned Addl. Public Prosecutor while supporting the impugned judgment contended that from the evidence of P.Ws. 4 and 5, it is established that the accused appellant was in the habit of visiting the residence of the victim in absence of her husband and also disturbing the victim while she used to collect firewood in the jungle and he is who informed the deceased regarding the fact of going her goat towards the jungle and was found in Bankumari forest to move with the victim as noticed by P.W. 5 for the last time and thereafter, on the following day the dead body of the deceased was recovered from the nearby jungle of the Bankumari forest and not only that the accused appellant absconded from his residence just after the occurrence for about three years. Therefore, from the aforesaid circumstances, there can be only one conclusion that it is the accused appellant who killed the deceased Mina Rani, wife of P.W. 6 after committing rape on her and though the police filed charge sheet against the accused appellant for the offence of rape, but unfortunately the learned Addl. Sessions Judge did not frame charge against the accused appellant under the aforesaid Section and the prosecution also did not approach this Court against the said order of framing charge. Mr. Ghosh also contended that the minor variance in evidence cannot dislodge the prosecution story proved beyond reasonable doubt and according to him, illiterate and ignorant women like P.Ws. 1, 2, 4 and 5 should not be disbelieved only on the ground of minor contradiction in their evidences. 26. Admittedly, there was no eye witness of the alleged incident of rape, far to the incident of alleged murder by the accused appellant. The prosecution tried to establish its case against the accused appellant mainly on the basis of circumstantial evidence. It tried to establish that the evidences are of circumstantial nature from which the only hypothesis that can be drawn is that it is only the accused appellant who committed the alleged offence of murder of the deceased victim Minarani and except that no other hypothesis can be drawn. It tried to establish that the evidences are of circumstantial nature from which the only hypothesis that can be drawn is that it is only the accused appellant who committed the alleged offence of murder of the deceased victim Minarani and except that no other hypothesis can be drawn. Now, we have to examine the evidence adduced by the prosecution to see whether the circumstances available establish the only hypothesis of guilt of the accused appellant and no other hypothesis is possible. There are series of decisions wherein the Apex Court held that no one should be convicted merely on the basis of suspicion, whatever strong it may be. It is not necessary to discuss all those decisions, but we feel that we would be benefited if some of those are discussed, which are as follows: In Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343 , which is one of the earliest decisions of the Apex Court on the subject, the Apex Court observed, inter alia, 'it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.' In Podala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706 : AIR 1990 SC 79 : 1990 Cri LJ 605, the Apex Court again held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : AIR 1984 SC 1622 : 1984 Cri LJ 1738, the Apex Court discussed regarding the duty of the prosecution and held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (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. In the case of State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86 : AIR 1992 SC 840 : 1992 Cri LJ 1104, the Apex Court further noted that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted (emphasis supplied). It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 27. The aforesaid propositions as laid down by the Apex Court, have subsequently been considered in Bodhraj v. State of J. & K. (2002) 8 SCC 45 : AIR 2002 SC 3164 : 2002 Cri LJ 4664; Bharat v. State of M.P. (2003) 3 SCC 106 : AIR 2003 SC 1433 : 2003 Cri LJ 1297; Deepak Chandrakant Patil v. State of Maharashtra (2006) 10 SCC 151 : AIR 2006 SC 1708 , as relied on by Mr. Biswas, learned Counsel for the accused appellant and State of Goa v. Sanjay Thakran (2007) 3 SCC 755 : 2007 AIR SCW 2226. 28. Biswas, learned Counsel for the accused appellant and State of Goa v. Sanjay Thakran (2007) 3 SCC 755 : 2007 AIR SCW 2226. 28. From careful reading of the impugned judgment of the learned Additional Sessions Judge, it appears that the conviction of the accused appellant is based on the following circumstances: (i) the accused was in the habit of visiting the residence of the deceased victim in absence of her husband and was also in the habit of disturbing the victim deceased while she used to collect firewood in the jungle; (ii) information by the accused appellant to the victim deceased regarding her goat's proceeding towards the jungle; (iii) the accused appellant followed the victim while she was proceeding towards the jungle in search of her goat and that the accused appellant was also found in Bankumari to move with the victim; (iv) the accused appellant met P.W. 1 in search of water and fire for smoking in abnormal and unnatural state of mind; (v) recovery of the dead body of the victim deceased Minarani near Bankumari tree where the accused appellant and the victim deceased were last seen together; and (vi) absconsion of the accused appellant from his house just after the occurrence for about three years. 29. Now, let us examine the evidence of P.W. 1, Smt. Purnima Shil, P.W. 2, Smt. Basana Banik, P.W. 4, Smt. Ratna Dey and P.W. 5, Smt. Pratima Saha who are the neighbours of the deceased and saw the accused appellant to follow the deceased while she was proceeding towards the jungle in search of her goat and disclosed the aforesaid facts to P. W.6, Shri Rakhal Ch. Dey, husband of the deceased victim, though P.W. 6 did not disclose the name of the accused appellant while he lodged the first information to the police, which is registered as UD case. 30. P.W. 1, Smt. Pumima Shil was examined by the I/O. of the case after about two years of the alleged incident while P.W. 2, Smt. Basana Banki was examined two years back from the date of her making statement before the learned trial Court on 29-7-2003. P.W. 4, Smti RatnaDey narrated in her statement before the learned trial Court that she noticed the accused appellant Swapan Dey to proceed along the same way by which the deceased victim Minarani proceeded. He also informed P.W. 6, Rakhal Ch. P.W. 4, Smti RatnaDey narrated in her statement before the learned trial Court that she noticed the accused appellant Swapan Dey to proceed along the same way by which the deceased victim Minarani proceeded. He also informed P.W. 6, Rakhal Ch. Dey, husband of the deceased the above fact. She stated that the silver chain of the neck and broken conch bangle of the deceased were found lying in the nearby side of the dead body. This witness also stated that accused appellant would also pass through the jungle to go to his paddy field and she noticed both Swapan and Minarani from time to time to talk together and to have hot exchange of words. 31. P.W. 5, Smt. Pratima Saha deposed that the deceased Minarani and the accused appellant Swapan were last seen together when they were proceeding towards the east on which side Bankumari tree was standing. Swapan was proceeding in front and Minarani was proceeding behind him. This witness was examined by the police, according to her, after 2/3 days of the alleged incident. But her above statement regarding 'last seen together' is not found in her 161 statements. P.W. 6, Rakhal Ch. Dey, husband of the deceased is a hearsay witness. 32. Though P.Ws. 2 and 4 in their statement stated that they narrated the story of accused appellant's following the deceased victim while she was proceeding towards the jungle in search of her goat on the date of her missing itself to the husband of the deceased (P.W. 6), but P.W. 6 while lodging the FIR before the police regarding missing of his wife, did not disclose even the name of the accused appellant. Therefore, it can be easily said that P.Ws. 2 and 4 had never stated such story to P.W. 6. Had they stated the same to P.W. 6, then P.W. 6 would have disclosed the name of the accused appellant to the police as being husband, he would have always tried to punish the real culprit responsible for the death of his wife. It is further pointed out that even though P.W. 2 in her deposition stated that she heard from her neighbours that one Sandhya Rani Das in course of searching found the dead body of Mina Rani, but said Sandhya Rani Das was neither produced nor examined by the prosecution. It is further pointed out that even though P.W. 2 in her deposition stated that she heard from her neighbours that one Sandhya Rani Das in course of searching found the dead body of Mina Rani, but said Sandhya Rani Das was neither produced nor examined by the prosecution. Not only that P.W. 1 during her deposition before the learned trial Court while narrating the story relating to appearance of the accused appellant infront of the gate of her house and asking her to serve drinking water and alerting her not to disclose the fact of his appearance to anybody, she stated that she narrated the said story to her husband on his return from his work. But the husband of P.W.1 was also neither produced nor examined by the prosecution. The aforesaid fact also suggests for non-believing the evidence of P.Ws. 1, 2 and 4. At best, in our opinion, the circumstances as available can rest a strong suspicion against the accused appellant. But a suspicion cannot be treated as a proof of guilt. See AIR 1975 SC 258 . 33. This Court is unable to believe the statements of the aforesaid prosecution witnesses in view of the judgments of the Apex Court in Radha Kumar (supra), Vijaybhai Bhanabhai Patel (supra) and Brahmananda Nanda (supra) as some of them were examined almost after two years of the alleged incident and there was, no proper explanation from the side of the investigating officer for such delay in recording their statements and not only that their deposition before the learned trial Court was totally absent in their statement recorded under Section 161 Cr.P.C., even though the same was recorded at a delated stage. 34. We are unable to accept the submission of Mr. Ghosh, learned Addl. Public Prosecutor, inter alia, that P.W. 5, Smti Pratima Saha had last seen the deceased and the accused appellant together at Bankumari while accused-appellant was proceeding in front and the deceased was proceeding behind him as those statements made by this witness before the learned trial Court are not available in her 161 statements recorded by, the I/O. of the case. According to us, such statements are improved version of story only for the purpose of convicting the accused appellant. 35. According to us, such statements are improved version of story only for the purpose of convicting the accused appellant. 35. The plea of absconsion of the accused-appellant after the alleged incident for about three years as raised by the prosecution as one of the grounds cannot also be accepted as it appears from the evidence of P.W. 8, Saroj Bhattacharjee, I/O. of the UD case that he arrested the accused appellant under Section 41 Cr.P.C. on 2-6-2000 and forwarded him on the same day to the learned Chief Judicial Magistrate in connection with the said UD case and not only that in view of Thimma (supra) and Rahman (supra) absconding by itself is not conclusive either of guilt or of a guilt conscience. For a person may abscond on account of fear of being involved in the offence or for any other allied reason. A Division Bench of this Court also took note of the aforesaid decisions in Promode Das and Ors. (supra). 36. P.W. 4, Smt. Ratna Dey in her evidence specifically stated that the accused appellant would also pass through the jungle to go to his paddy land meaning thereby the way by which the deceased proceeded to the jungle in search of her goat is the normal route for going to the paddy field of the accused appellant. Hence, it cannot be ruled out that on that day on good faith, the accused appellant informed the deceased about her goat and proceeded thereafter towards his own paddy field like all other days and the story of following the deceased victim is a mere incident. The said fact of accused appellant's proceeding towards the jungle does not establish the chain of circumstances, which could link the accused appellant with the alleged crime. The aforesaid view of us gets support from the case of Lakhanpal v. The State of Madhya Pradesh AIR 1979 SC 1620 wherein the Apex Court considering the fact of that case noted 'For these reasons, therefore, the mere fact that the appellant and the deceased were together in the field does not lead to the irresistible inference that the appellant must have murdered the deceased'. Moreso, even if the story of prosecution relating to 'last seen together' is accepted then also it cannot be ruled out that between 10 a.m. of 26-5-2000 when the accused-appellant was found to follow the deceased towards the jungle and 3/3.30 p.m. of the following day when the dead body of the deceased Minarani was recovered, some other persons might have visited the said jungle where the dead body was found who might be the author of the death of the deceased. 37. The last-seen theory comes into play where 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 per son other than the accused being the author of the crime becomes impossible. Even in such a case the Courts should look for some corroboration. In the instant case, as stated supra, the time gap between the point of time when the deceased and the accused appellant were last seen together and the dead body of the deceased was recovered was more than 24 hours and not only that such a story was first time stated before the learned trial Court by the prosecution witnesses, which should not be believed by a Court normally. There fore, the last-seen theory, as alleged, fails. Our aforesaid view gets support from the case of State of Maharashtra v. Annappa Bandu Kavatage AIR 1979 SC 1410 wherein the Apex Court observed 'it is well settled that before a Court can act on circumstantial evidence the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused.... As there was sufficient interval between the death of the boy and the recovery of the body, the link in the chain of the circumstantial evidence does not appear to be fully complete.' 38. As there was sufficient interval between the death of the boy and the recovery of the body, the link in the chain of the circumstantial evidence does not appear to be fully complete.' 38. Our aforesaid view also gets support from the decision of the Apex Court in State of U.P. v. Satish (2005) 3 SCC 114 : AIR 2005 SC 1000 : 2005 Cri LJ 1428 wherein the Apex Court noted that the last seen theory comes into play where 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 impossible. If 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 the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. The aforesaid case of Satish (supra) has also been taken note of by the Apex Court in Ramreddy Rajesh Khanna Reddy (supra). 39. Now, question remains as to the motive. It is well settled that motive itself cannot be a ground for proving the guilt unless either direct or circumstantial evidences are available to prove the guilt. 40. In view of the peculiar facts and circumstances of the case in hand and on scrutiny of the evidence on record, we are of the opinion that the prosecution cannot be said to have established the chain of circumstances which could link the accused appellant with the alleged crime. The learned trial Court has failed to consider the facts in question and committed an error by relying on the circumstantial evidence of 'last seen together' mainly on improved version of prosecution witnesses. We have also noticed that the prosecution story has a large number of loopholes and the evidences of prosecution witnesses were recorded after a long delay and not only that it has also failed to established its case against the accused appellant beyond all shadow of doubt. We have also noticed that the prosecution story has a large number of loopholes and the evidences of prosecution witnesses were recorded after a long delay and not only that it has also failed to established its case against the accused appellant beyond all shadow of doubt. In a criminal case if the Court has a minimum doubt in its mind regarding the involvement of the accused with the alleged crime then the benefit of such doubt should be given to the accused. Therefore, we have no other option except to hold that the accused appellant is entitled to get the benefit of doubt. 41. In the result, the impugned judgment and order is set aside and the appeal is allowed. It is directed that the appellant be set at liberty forthwith unless he is wanted in any other case. Appeal allowed