Judgment & Order (Cav):

Kaushik Goswami, J.

1. Heard Mr. T J Mahanta, learned Senior counsel assisted by Mr. T Gogoi, learned counsel for the appellant in Criminal Appeal No. 145/2024 and Mr. I H Saikia, learned counsel for the appellant in Criminal Appeal No. 104/2024. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor, Assam for the State.

2. These two appeals are directed against the judgment of conviction dated 07.03.2024 and sentence dated 13.03.2024 passed by the learned Sessions Judge, Baksa, Mushalpur in Sessions Case No.82/2022, whereby the accused appellant in Criminal Appeal No. 145/2024, namely, Md. Rafik Ali and coaccused/ appellant in Criminal Appeal No. 104/2024, namely, Md. Jeharul Ali were convicted under Sections 302/365/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- (Rupees Two Thousand) each, in default of payment of fine, to undergo rigorous imprisonment for further six months each under Sections 302/34 of the IPC and also sentenced to undergo rigorous imprisonment for 3 years each with a fine of Rs. 2,000/- each and in default, simple imprisonment for another 3 months under Sections 365/34 of the IPC. Both these appeals are taken up together for disposal.

3. The case of the prosecution, in brief, is that PW-1 lodged an FIR alleging, inter-alia, that on 28.03.2020 at about 10:00 PM the accused/appellant, Md. Rafik Ali along with co-accused/appellant, Md. Jeherul Ali called her husband/deceased out of the house for having some talk and since then, her husband having not returned back, on the following day morning at about 9:00 AM, she called the accused/appellant, Md. Rafik Ali to enquire about the whereabouts of her husband. It is further alleged that the accused/appellant, Md. Rafik Ali replied that the co-accused/appellant, Md. Jeherul Ali knows about her husband and when she approached the co-accused/appellant, Jeherul Ali, he replied that it is the accused/appellant, Md. Rafik Ali who knows about her husband/deceased. Accordingly, she suspected that they had killed her husband in a pre-planned manner. Upon receipt of the said FIR, the Officer-in-Charge of the jurisdictional police station registered the FIR as Barama P.S. Case No. 31/2020 under Sections 120B/365/302/34 IPC. Accordingly, the investigating officer proceeded to investigate the matter by recording the statement of the informant and upon coming to learn that the body of the husband/deceased was found to be floating in a nearby pond, visited the place of occurrence, recorded the statements of the witnesses, recovered the dead body, performed inquest, prepared the sketch map of the place of occurrence as well as the residence of the deceased and sent the dead body for postmortem examination, collected the same and arrested the accused appellants and upon completion of the investigation, submitted the charge-sheet against the accused appellants under Sections 120B/365/302/34 of the IPC.

4. Thereafter, the Chief Jurisdictional Magistrate committed the case to the jurisdictional Sessions Court and upon receipt of the records, Sessions Case No. 82/2022 was registered. The Trial Court thereafter framed charges under Sections 365/302/34 of the IPC against the accused appellants and upon reading over and explaining the same to the accused appellants, they individually pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined 13 witnesses, including the informant, medical officer and the investigating officer. Upon completion of the prosecution evidence, all the incriminating circumstances were put to the accused appellants under Section 313 of the CrPC, wherein they generally denied all the circumstances and declined to adduce defense evidence. The Trial Court after hearing the parties, was pleased to return the verdict of guilt against the accused appellants and convicted and sentenced them thereof. Hence, the present criminal appeals.

6. Mr. Mahanta, learned Senior counsel appearing for the accused/appellant in Criminal Appeal No. 145/2024, submits that the Trial Court having convicted the accused/appellant, Md. Rafik Ali solely on the basis of the last seen theory, committed gross error in law, inasmuch as conviction cannot be made solely on the basis of last seen theory. The prosecution must prove the guilt of an accused beyond reasonable doubt and the last seen theory comes into play when 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 the possibility of any person other than the accused being the author of the crime becomes impossible. He accordingly, submits that in the instant case, the body of the deceased having been recovered after almost two days since the accused appellants were allegedly seen to have taken away the deceased husband from his house by PW-1, the last seen, together, therefore by itself would not be sufficient and the chain of circumstances cannot be said to be complete to bring home the guilt of the accused appellants. In support of the aforesaid, he relies upon the decisions of the Apex Court in the case of Padman Bibhar -Vs- State of Odisha reported in (2025) LiveLaw SC 613 and Manoj @ Munna -Vs- State of Chhattisgarh in Criminal Appeal No. 1129/2013. In support of his further contention that mere nonexplanation on the part of the accused appellants by itself also cannot infer the guilt of the accused appellants, he relies upon the decision of the Apex Court in the case of Kanhaiya Lal -Vs- State of Rajasthan reported in (2014) 4 SCC 715. He further submits that in a case of circumstantial evidence, motive is relevant and in the present case, the prosecution having miserably failed to establish any motive whatsoever, the same weighs in favor of the accused appellants. In support of the above, he relies upon the decision of the Apex Court in the case of Nandu Singh -Vs- State of Madhya Pradesh (Now Chhattisgarh) reported in (2022) 19 SCC 301.

7. Mr. I H Saikia, learned counsel appearing for the co-accused/appellant, Md. Jeherul Ali in Criminal Appeal No. 104/2024 by adopting the arguments of Mr. Mahanta, learned Senior counsel, relies upon the following decisions –

                   i) Ramreddy Rajeshkhanna Reddy & Anr. -Vs- State of Andhra Pradesh, reported in (2006) AIR SC 1656.

                   ii) State of Uttar Pradesh -Vs- Satish, reported in (2005) AIR SC 1000.

                   iii) Nazim & Ors. -Vs- State of Uttarakhand, reported in (2025) AIR SC 4801

                   iv) Hatti Singh -Vs- State of Haryana, reported in (2007) 12 SCC 471.

                   v) State (Delhi Administration) -Vs- Gulzarilal Tandon, reported in (1979) AIR SC 1382.

                   vi) Nagamma Nagarathna & Ors. -Vs- State of Karnataka, reported in (2025) AIR SC 4695.

                   vii) Naresh Kumar -Vs- State of Maharastra, reported in (1980) AIR SC 1168.

                   viii) Vinod Kumar -Vs- State (Govt. of NCT of Delhi), reported in (2025) AIR SC 943.

                   ix) Shailendra Rajdev Pasvan & Ors. -Vs- State of Gujarat, reported in (2020) AIR SC 180.

                   x) Laxman Prasad @ Laxman -Vs- State of Madhya Pradesh, reported in (2023) 6 SCC 399.

                   xi) Arun Sarkar -Vs- State of Madhya Pradesh, reported in (2024) AIR SC 1920

                   xii) Vaibhav -Vs- State of Maharastra, reported in (2025) AIR SC 2996.

                   xiii) State of Chattisgarh Vs- Ashok Bhoi Etc., reported in (2025) Legal Eagle SC 260.

                   xiv) Dasari Siva Prasad Reddy -Vs- Public Prosecutor, High Court of A.P. reported in (2004) 11 SCC 282.

                   xv) Rat Chand Bahadur Magar -Vs- State of Assam, in Criminal Appeal (J) No. 106/2011.

                   xvi) Padman Bibhar -Vs- State of Odisha, reported in (2025) LiveLaw SC 613 and

                   xvii) Kamru Bhumij -Vs- State of Assam, in Criminal Appeal No. 6/2021.

8. Per contra, Mr. R R Kaushik, learned APP for the State, submits that it is evident from the post-mortem report and the testimony of the medical officer who conducted the post-mortem examination that the deceased died almost 30–40 hours since 30.03.2020, i.e., the date of his post-mortem examination. Hence, the time gap between the accused appellants having last seen by the PW-1 taking her husband out of their house and his death thereafter being in short proximity, the last seen theory assumes significance in the context of the present case. He further submits that the same is an additional link to the other corroborating incriminating circumstances. He further submits that all the incriminating circumstances brought in through the depositions and testimonies of the prosecution witnesses together complete the chain and the same having been fully established, the guilt of the accused appellants is proved beyond reasonable doubt.

9. We have given our prudent considerations to the arguments advanced by the learned counsels appearing for the parties and have perused the material available on record. We have also duly considered the case laws cited at the bar.

10. The evidence of PW-1, the informant and wife of the deceased, is to the effect that on 28.03.2020, the accused/appellant, Md. Rafik Ali came to their house at about 9:00 PM and had dinner with them. Thereafter, at about 10:00 PM, he again came to their house along with the co-accused/appellant, Md. Jeherul Ali and, by calling her husband to discuss something, took him away with them, whereafter she went to sleep. She further deposed that when her husband did not return home during the night, she, upon waking up the following morning, at about 8:30–9:00 AM, telephoned the accused/appellant, Md. Rafik Ali to enquire about her husband. However, he informed her that it was the co-accused/appellant, Md. Jeherul Ali who knew about him. She further stated that although she thereafter went to the house of the accused/appellant, Md. Rafik Ali, he reiterated that it was the co-accused/appellant, Md. Jeherul Ali who knew about her husband. She then proceeded to the house of the coaccused/ appellant, Jeherul Ali, who, on being asked, replied to the contrary that it was the accused/appellant, Md. Rafik Ali who knew about her husband. Upon both the accused appellants blaming each other, she became suspicious and approached the Gaon Burah (PW-11), who advised her to inform the police. Accordingly, she lodged the FIR on 29.03.2020. On 30.03.2020, the dead body of her husband was recovered from a pond at Murmela, and after conducting the post-mortem examination, the body was handed over to the family for performing the last rites. She further deposed that upon seeing the body of her husband, she noticed injuries on his head, face and hands. During crossexamination, she clarified that she suspected the accused appellants to have killed her husband, as they had taken him away on the night of the incident, after which he went missing and was subsequently found dead in the pond. The testimony of PW-1 remains wholly unshaken.

11. The evidence of PW-2, who is the brother of the deceased, is to the effect that on 29.03.2020, PW-1 informed him that on the previous night at about 9:00 PM, the accused/appellant, Md. Rafik Ali came to their house and had dinner with them. Thereafter, he, along with the co-accused/appellant, Jeherul Ali, again came to their house and took away the deceased husband on the pretext that they had to discuss something. PW-2 further deposed that when they asked the accused/appellant, Md. Rafik Ali, he told them that it was the co-accused/appellant, Md. Jeherul Ali who knew about the deceased, and when they went to the house of the co-accused/appellant, Jeherul Ali, he, on the contrary, stated that it was the accused/appellant, Md. Rafik Ali who knew about the whereabouts of the deceased. Consequently, they approached PW-11, who advised them to lodge the FIR, whereupon PW-1 lodged the same. He further deposed that on 30.03.2020, after the body of the deceased was recovered, he noticed injuries on the backside of the head, face, hands, etc.

During cross-examination, he denied the suggestion that he had not stated before the Investigating Officer that the accused/appellant, Md. Rafik Ali was called to their house for enquiring about the deceased.

12. The evidence of PW-3 (brother-in-law), PW-4 (brother), PW-5 (uncle), PW-6 (father), and PW-12 (cousin) corroborates the prosecution version to the effect that PW-1 informed them that initially the accused/appellant, Md. Rafik Ali had come to their house and had dinner with them and thereafter came back along with co-accused/appellant, Md. Jeherul Ali and took away the deceased husband. However, the deceased did not return home that night and upon the accused/appellants being questioned on the following morning regarding the whereabouts of the deceased husband, they blamed each other. Nothing has been elicited in the cross-examination of the aforesaid witnesses to discredit their evidence, which thus stands unshaken.

13. The evidence of PW-8, a co-villager, is to the effect that he had seen the dead body floating in a pond and, upon informing the same to PW-11, the police arrived. PW-9, the brother of PW-8, corroborated his testimony with regard to the discovery of the dead body of the deceased husband. During cross examination, PW-8 clarified that the dead body was not decomposed. However, cross-examination was declined in respect of PW-9. PW-11, the village headman of the deceased, further corroborated the testimony of PW-8.

14. The evidence of PW-10, who is the sister-in-law of the deceased husband and resides with her husband in another house in the same compound, is to the effect that on the date of the incident, at about 8:00–9:00 PM, the accused/appellant, Md. Rafik Ali came to their house and had a conversation with the deceased husband and thereafter had dinner together in the house of the deceased, during which time she was also present. She further deposed that on the following morning PW-1 informed her that on the previous night the accused/appellant, Md. Rafik Ali had once again come back and taken her husband from the house and thereafter he did not return home. She also corroborated the prosecution version to the effect that when the accused/appellants were questioned regarding the whereabouts of the deceased, they passed the responsibility onto each other. During crossexamination, she clarified that there was no quarrel or prior enmity between the deceased and the accused/appellants. The surrounding circumstances spoken to by PW-10 fully corroborate the testimony of PW-1, and the said evidence having remained unshaken, the testimony of PW-1 becomes wholly believable.

15. The evidence of PW-7, the Medical Officer who conducted the postmortem examination on the deceased, is to the effect that upon examination he found injuries on the face, back, and head and opined that the deceased had been assaulted from behind on the face, and that death was caused due to both homicidal injury and drowning. He further opined that death had occurred approximately 30–40 hours prior to the post-mortem examination. The postmortem report, Exhibit-P2, substantiate the said findings. Relevant findings recorded therein reads as under—

                   “I. External appearance: Partly decomposed Wounds Injury mark over face back of head back side of body right upper extremity (including cut mark) Bruise- No bruise Mark of ligature No mark of ligature

                   II. Cranium and Spinal Canal: Scalp, skull and vertebrae A cut mark (5 mm) over back of head. Membrane-Healthy Brain and Spinal cord Healthy

                   III. Thorax Wall ribs and cartilages Injury mark (cut mark) over back of thorax. Pleurae Healthy Larynx and trachea Water present. Right lung Water present, Left Lung. Water present. Pericardium healthy Heart healthy, Vessels healthy.

                   IV. Abdomen Walls Injury mark (cut mark) over back, Peritonium healthy Mouth, pharynx and oesophagus water present in oesophagus, Stomach and its contents. Water present, Small intestine and its contents Water present Large intestine and its contents, Liver: healthy, Spleen: healthy, Kidneys Healthy. Bladder healthy. Organs of generation, external and interi all are healthy.

                   V. Muscles, bones and joints Injury-Injury mark (including cut mark) present over face and back. Disease or deformity. Fracture and dislocation Not present.

                   Opinion: The person was assaulted on the face and from the back and put in a pond Death was due to both homicidal injury and drowning It occurred 30-40 hours before post mortem.”

The testimony of the Medical Officer has remained wholly unshaken and uncontroverted.

16. The evidence of PW-13, the Investigating Officer, is to the effect that upon registration of the FIR, he investigated the case, recovered the dead body of the deceased, recorded the statements of witnesses, prepared the sketch map, and conducted the inquest over the body. Upon his transfer, he handed over the case diary to the then Officer-in-Charge, whereafter his successor completed the investigation and submitted the charge-sheet against the accused/appellants. He further proved and exhibited the sketch maps of the residence of the deceased as well as the place from which the body of the deceased was recovered, the inquest report, the post-mortem report, and other connected documents.

17. What emerges from the evidence on record is that the accused/appellant, Md. Rafik Ali had dinner at the house of the deceased in the presence of PW-1 and PW-10. After leaving, he returned once again along with coaccused/ appellant, Md. Jeherul Ali and took the deceased away on the pretext of discussing certain matters. The deceased did not return home thereafter. On enquiry made the following morning, both the accused/appellants attempted to shift responsibility onto each other. The version of PW-1 stands corroborated by the testimonies of PWs-2 and 10, as also by PWs-3, 4, 5, 6 and 12, who support the surrounding circumstances.

18. From the sketch map, it is evident that PW-1 and PW-10 reside within the same compound, though in separate households. The contention of the appellants that PW-10 did not depose about having seen the accused/appellant, Md. Rafik Ali returning with co-accused/appellant, Md. Jeherul Ali after dinner, does not render the testimony of PW-1 unreliable. The evidence clearly establishes that PW-10 was present in the house of the deceased only at the time of dinner. In these circumstances, the absence of her testimony regarding the subsequent movement of the accused/appellants does not detract from the credibility of PW-1, whose evidence remains consistent and cogent.

19. The medical evidence lends strong corroboration to the ocular and circumstantial evidence. The post-mortem report reveals injuries on the face, hand and head of the deceased. The doctor has opined that the injuries were ante-mortem and that the deceased was assaulted prior to drowning. The death was homicidal in nature. The opinion regarding the time since death establishes close proximity between the time when the deceased was last seen in the company of the accused/appellants and the time of death.

20. The prosecution case rests on circumstantial evidence. The legal position governing such cases is well settled. Conviction can be sustained only when the circumstances proved form a complete and unbroken chain, leading to no conclusion other than the guilt of the accused. It is equally settled that the circumstance of “last seen together” by itself is insufficient to sustain a conviction. However, when established and corroborated by other incriminating circumstances, it constitutes a vital link in the chain.

21. In Padman Bibhar (Supra), the Apex Court reiterated that suspicion, however strong, cannot substitute proof and that the “last seen together” circumstance, without corroboration, is a weak form of evidence. In Rambraksh @ Jalim v. State of Chhattisgarh reported in (2016) 12 SCC 251 and Krishnan @ Ramasamy & Ors. v. State of Tamil Nadu, reported in (2014) 12 SCC 279 it was held that the doctrine applies only when the time gap between the accused and the deceased being last seen together and the discovery of death is so proximate that the possibility of thirdparty intervention stands excluded. Even in such cases, the prosecution must establish a complete chain of circumstances.

22. In Manoj @ Munna (Supra), the Apex Court clarified that circumstantial evidence can form the basis of conviction only when it is wholly inconsistent with the innocence of the accused and consistent only with his guilt. The Apex Court further explained that once proximity between the “last seen together” circumstance and the death is established, Section 106 of the Indian Evidence Act becomes relevant.

23. The scope of Section 106 of the Evidence Act has been explained in Sabitri Samantaray v. State of Odisha, reported in (2023) 11 SCC 813 and Anees v. State (NCT of Delhi), reported in (2024) 15 SCC 48 wherein it was held that the provision does not dilute the primary burden of the prosecution but casts an obligation on the accused to explain facts especially within his knowledge, once the prosecution establishes a prima facie chain of circumstances. Failure to offer a plausible explanation furnishes an additional incriminating link. In Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681 it was further held that false or evasive answers to incriminating circumstances may themselves form such additional links.

24. Applying the aforesaid principles to the facts of the present case, the prosecution has proved that the accused/appellant was last seen with the deceased in close proximity to the time of death. PW-1’s testimony in this regard is natural and trustworthy and finds corroboration from PW-10 and other prosecution witnesses.

That apart, the conduct of the accused/appellants also assumes relevance under Section 8 of the Indian Evidence Act, which renders the conduct of a party, both previous and subsequent to the occurrence, admissible insofar as it influences or is influenced by the facts in issue. The Apex Court has consistently held that the behaviour of an accused, when examined in conjunction with other proved circumstances, can furnish a relevant incriminating link. In the present case, the conduct of the accused/appellants in taking the deceased away late at night, their evasive and inconsistent responses when questioned the following morning, and their failure to offer any plausible explanation as to how they parted company with the deceased, are not neutral acts. When read alongside the proximity of the “last seen together” circumstance, the medical evidence establishing homicidal death, and the recovery of the body shortly thereafter, such conduct acquires probative value and reinforces the chain of circumstantial evidence. While conduct alone cannot found a conviction, under Section 8 it becomes a relevant circumstance which, in the present case, lends assurance to the prosecution version.

25. Further, the recovery of the body from the pond stands proved through the evidence of PWs-11 and 12. The medical evidence conclusively establishes that the deceased was assaulted prior to drowning and that the death occurred within a short span of time after the deceased was taken away by the accused/appellants. In such circumstances also, the failure of the accused/appellants to offer any plausible explanation as to how and when they parted company with the deceased assumes decisive significance and furnishes an additional link in the chain of circumstances.

26. Though motive assumes importance in cases based on circumstantial evidence, its absence is not fatal where the chain of circumstances is otherwise complete. The principles governing circumstantial evidence, namely, (i) that chain of evidence is complete; (ii) circumstances relied upon by prosecution should be conclusive in nature; (iii) fact established should be consistent only with the hypothesis of the guilt of accused; (iv) circumstances relied upon should only be consistent with the guilt of the accused; and (v) circumstances relied upon should exclude every possible hypothesis except the one to be proved, as reiterated in Gamparai Hrudayaraju v. State of A.P., reported in (2009) 13 SCC 740 and Hanumant Govind Nargundkar v. State of M.P., reported in (1952) 2 SCC 71 and Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, stand fully satisfied in the present case. The circumstances proved are conclusive in nature, form a complete chain and exclude every reasonable hypothesis of innocence.

27. It is worthwhile to mention that the decisions relied upon by the accused/appellants do not advance their cases and are clearly distinguishable on facts. In the cases cited, the prosecution had rested almost entirely on the solitary circumstance of “last seen together”, either without establishing proximity of time between the last seen circumstance and the death, or without any corroborative medical, conduct-based or surrounding circumstances completing the chain of evidence. In several of those cases, the Apex Court found gaps in the prosecution story, unexplained delays, absence of credible corroboration, or failure to exclude the possibility of third-party intervention. In contradistinction, in the present case, the circumstance of “last seen together” is not an isolated factor but is firmly supported by consistent ocular evidence, proximate medical opinion establishing homicidal death, recovery of the body soon thereafter, and the conduct of the accused/appellants in failing to offer any plausible explanation for facts especially within their knowledge. The ratio of the decisions relied upon by the accused/appellants, therefore, being contextspecific, does not dilute the prosecution case herein, where the chain of circumstances stands complete and unbroken.

28. We, therefore, find no infirmity in the impugned judgment and order passed by the learned Trial Court. The convictions of the accused/appellants are founded on a legally sustainable appreciation of evidence and warrant no interference. These appeals, being devoid of merit, are accordingly dismissed.

29. Send back the TCR.