Gauhati High Court
The State Of Assam vs Mangal Paik on 7 August, 2026
Page No.# 1/25
GAHC010009752021
2026:GAU-AS:10959-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Death Sentence Ref./1/2021
THE STATE OF ASSAM,
REPRESENTED BY PP, ASSAM.
VERSUS
MANGAL PAIK
BISWANATH CHARIALI, ASSAM.
Linked Case : CRL.A(J)/14/2021
MANGAL PAIK
BISWANATH CHARIALI
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
2:SRI RABINA MUNDA
W/O- SRI UPEN MUNDA
VILL. 1 NO. ITAKHOLA
AHUBARI
P.S. SOOTEA
DIST. BISWANATH
ASSAM.
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BEFORE
HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON’BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Appellant: Mr. K. Agarwal, Senior Advocate/Amicus
Curiae assisted by Ms. P. Neog, Advocate in
Criminal Appeal(J) No. 14/2021.
Ms B. Bhuyan, Senior Advocate/Additional
Public Prosecutor, Assam assisted by
Ms. R. Saloi, Advocate in Death Sentence
Reference No. 01/2021
For the Respondents: Ms B. Bhuyan, Senior Advocate/Additional
Public Prosecutor, Assam assisted by
Ms. R. Saloi, Advocate for respondent No.
1/State of Assam in Criminal Appeal (J) No.
14/2021.
Mr. K. Agarwal, Senior Advocate/Amicus Curiae
assisted by Ms. P. Neog, Advocate in Death
Sentence Reference No. 01/2021.
Ms. P. Barua, Amicus Curiae for the informant.
Date on which judgment is reserved: 04.08.2026
Date of pronouncement of judgment: 07.08.2026
Whether the pronouncement is of the
operative part of the judgment : NA
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Whether the full judgment has been
Pronounced : Yes
JUDGMENT & ORDER (CAV)
(A.D.Choudhury, J)
1. The Criminal Appeal (J) No. 14/2021 and Death Sentence
Reference No. 01/2021 arise out of Judgment and Sentence dated
21.12.2020 passed by the learned Special Judge-cum-Additional Sessions
Judge (FTC), Biswanath Chariali, Sonitpur in Spl (POCSO) Case No. 01/2019
corresponding to GR Case No. 1002/2018 and Sootea P.S. Case No.
206/2018, whereby the accused appellant, namely, Sri Mangal Paik, was
convicted under Sections 302/363/376-A/201 IPC read with Section 6 of
POCSO Act, 2012 and sentenced to death.
2. Since both the Reference and Appeal arise from the same
judgment, they are taken up together for disposal by this common
judgment and order.
3. We have heard Mr. K. Agarwal, learned Senior Advocate/Amicus
Curiae, assisted by Ms. P. Neog, learned Advocate for the appellant in
Criminal Appeal (J) No. 14/2021. We have also heard Ms. B. Bhuyan,
learned Senior Advocate/Additional Public Prosecutor, assisted by Ms. R.
Saloi, learned Advocate for the respondent/State in Criminal Appeal (J) No.
14/2021, and Ms. P. Barua, learned Amicus Curiae for the informant,
4. The case relates to the alleged rape and murder of a five-year-
old girl. The accused/appellant Mangal Paik, who worked with the
deceased’s father, Upen Munda (PW-13), stayed at the latter’s house on the
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night of 16.12.2018.
On 17.12.2018, while PW-13 and PW-1, Rabina Munda, the informant,
mother of the deceased, were both away at work, the deceased went
missing from home.
On search, she was found to have last been seen with the accused, who
claimed she had turned back midway and that he did not know her
whereabouts.
The villagers apprehended the accused, and thereafter the police were
called, and the police took the accused/appellant into their custody on
17.12.2018 at 08.:30 PM.
PW-1 and PW-13 and other villagers continued to search for the deceased,
but she could not be found on 18.12.2018 also.
In this regard, PW-1 lodged an ejahar before the Itakhula Police Outpost on
18.12.2018 at 11:00 AM, wherein it was stated that on 17.12.2018 at
around 10:00 AM, while the deceased was playing in the house of their
neighbour Adi Kanta Tassa, the accused/appellant enticed and abducted
her.
Accordingly, based on the ejahar, the Officer-in-charge of Itakhula Police
Outpost made a G.D. entry vide No. 254 dated 18.12.2018 and the matter
was forwarded to Sootea Police Station for registering a case; accordingly,
Sootea Police Station Case No. 206/2018 under Section 365 IPC was
registered against the accused/appellant.
During the investigation, the statements of the witnesses were recorded;
the statement of the accused under Section 164 Cr.P.C. was also recorded.
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Having found overwhelming incriminating material against the accused, the
Investigating Officer filed the charge-sheet under Sections
364/376AB/302/201 IPC, read with Section 4 of the POCSO Act, 2012, after
the completion of the investigation.
5. Upon committal, the charges under Sections 364/376-A/302/201
IPC and Section 6 of the POCSO Act, 2012 were framed against the accused
person, to which he pleaded not guilty and claimed to be tried; accordingly,
the trial proceeded.
6. To establish the charges, the prosecution examined 16 (sixteen)
witnesses. The defence adduced no evidence. The statements of the
accused under Section 313 Cr.P.C. were recorded, and the accused denied
any involvement in the crime.
7. The learned trial court, upon appreciation of the evidence,
convicted the accused person, and the impugned sentence of death was
passed.
8. Hence, the present appeal and reference.
9. Mr. K. Agarwal, learned Senior counsel/Amicus Curiae for the
appellant, submits that the conviction rests entirely upon circumstantial
evidence, and the prosecution has failed to establish a complete chain of
circumstances consistent only with the hypothesis of the appellant’s guilt.
10. Mr K. Agarwal, learned Amicus Curiae/Senior Counsel, argues
that since the conviction rests entirely upon circumstantial evidence, each
circumstance relied upon by the prosecution must first be independently
proved before considering its cumulative effect. According to him, the
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prosecution has failed to establish a complete chain of circumstances
pointing only to the appellant’s guilt.
11. It is argued that though PW-2, PW-7 and PW-9 claimed to have
seen the victim in the company of the appellant, their evidence does not
establish a definite time of last seen. PW-2 places the incident at 09:00 am,
PW-9 at about 02:30 pm, whereas PW-7 is unable to state the time. The
medical evidence also does not fix the probable time of death. Therefore,
the last seen circumstance cannot be treated as a conclusive link.
12. It is further submitted that the alleged recovery of the dead body
at the instance of the appellant itself is doubtful. Though the Investigating
Officer claimed that PW-10 and PW-11 were present when the appellant
showed the place of concealment, PW-10 does not support such a recovery,
and PW-11 gives a materially different version. There is no
contemporaneous recovery memo.
13. It is contended that the elaborate confession narrated by the
Investigating Officer is inadmissible, and that only the part of the
information that actually led to the discovery could be considered under
Section 27 of the Evidence Act. Once the alleged discovery becomes
doubtful, there remains no reliable circumstance connecting the appellant
with the actual sexual assault and death. The medical evidence may
establish rape and homicidal death but does not identify the perpetrator.
14. According to him, in such circumstances, it would be unsafe to
use the alleged discovery to fill the gap left by the uncertain last-seen
evidence. He accordingly submits that notwithstanding the grave suspicion
arising against the appellant, the conviction can be sustained only if the
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proved circumstances form a complete chain excluding every reasonable
hypothesis consistent with innocence, which the prosecution has failed to
establish in the present case. Accordingly, it is submitted that the appellant
is therefore entitled to the benefit of the doubt.
15. Per contra, Ms B. Bhuyan, learned Senior Counsel/Additional
Public Prosecutor, supports the conviction and submits that the
circumstances must be considered cumulatively rather than in isolation. PW-
2, PW-7 and PW-9 consistently establish the material fact that the victim
was taken away by the appellant on the relevant day. Minor differences
regarding time, according to the learned Senior Counsel/Addl.PP, do not
affect the core of their evidence. The appellant himself subsequently
admitted before the family members and other villagers that the victim had
accompanied him, though he claimed that he had left her midway.
16. It is further argued that the subsequent conduct of the appellant;
his attempt to flee and his apprehension by the villagers provide additional
corroboration. Most importantly, the appellant thereafter disclosed the place
where the body had been concealed, and the dead body was recovered
from the pond as led and shown by the appellant.
17. The learned Senior Counsel further contends that the absence of
a formal recovery memo, or minor discrepancies among the witnesses
regarding the actual process of recovery, would not destroy a discovery
otherwise proved through the evidence of the Investigating Officer and PW-
11. The medical evidence conclusively establishes the brutal sexual assault
and the unnatural death of the five-year-old victim.
18. Learned Addl. PP accordingly submits that when the last seen
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evidence, the appellant’s conduct, his knowledge regarding the place of
concealment and the medical evidence are read together, they form a
complete chain excluding any reasonable hypothesis other than the guilt of
the appellant. It is therefore urged that the conviction and sentence be
affirmed.
19. Ms. P Boruah, learned Amicus Curiae, appearing for the
informant, supports the conviction and substantially adopts the submission
of the learned Addl. PP.
20. She argues that the evidence should not be dissected by
examining each circumstance in isolation. PW-2, PW-7 and PW-9
consistently establish the material fact that the appellant took the five-year-
old victim away. The discrepancy in precise timing does not undermine the
core of their testimonies. The subsequent disappearance of the child, the
conduct of the appellant, the recovery of the dead body from the pond and
the medical evidence establishing brutal assault and death when considered
together form a consistent chain pointing towards the appellant.
21. It is further submitted that minor discrepancies regarding the
manner of recovery should not overshadow the fact that the body was
ultimately recovered from the place indicated during investigation.
22. According to the learned Amicus Curiae, the circumstances have
to be appreciated cumulatively and in the background of the appellant
having been the person with whom the child was last seen alive. It is
accordingly argued that the conviction recorded by the learned Trial Court
needs no interference.
23. We have given our anxious consideration to the rival submissions
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made and have carefully gone through the evidence available on record.
The conviction of the appellant rests entirely upon the
circumstantial evidence. There is no eyewitness to the actual occurrence.
24. The prosecution seeks to establish the guilt of the appellant
broadly on the following circumstances:
(i) Presence of the appellant in the house of the
victim on the previous night and the morning of the occurrence.
(ii) The victim having been seen thereafter in the
company of the appellant.
(iii) Purchase of biscuit and taking the victim towards
the tea garden by the accused appellant.
(iv) The appellant’s conduct after the victim went
missing.
(v) Disclosure allegedly made by the appellant while
in police custody, leading to discovery of the dead body.
(vi) Medical evidence regarding the nature of the
assault and death.
25. Before examining these circumstances, we may briefly remind
ourselves of the settled principles governing a case based upon the
circumstantial evidence.
26. The circumstances from which guilt is sought to be inferred
must first be fully established.
The circumstances so established must be consistent only with the guilt of
the accused; must be conclusive in nature; and, when taken together, must
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form a complete chain excluding every reasonable hypothesis consistent
with innocence. Suspicion, however grave, cannot take the place of legal
proof. These principles have been consistently reiterated in Hanumant Vs.
State of Madhya Pradesh, reported in (1952) 2 SCC 71 and Sarad
Bridhi Chand Sarda Vs State of Maharashtra reported in (1984) 4
SCC 116.
27. Guided by the aforesaid principles, we shall now examine each
circumstance independently and thereafter consider their cumulative effect.
28. The first circumstance does not pose much difficulty.
PW-1, the mother of the victim, stated that the appellant came to her house
on Sunday afternoon (i.e., on 16.12.2018) and stayed there for a night. The
following morning (i.e., on 17.12.2018), she and her husband went to work,
leaving the children behind. She also stated that the appellant was known
to the family and had worked with her husband (PW-13). PW-13, the father
of the victim, substantially corroborates her on this aspect.
29. Therefore, we find no difficulty in accepting that the appellant
was present in the victim’s house the previous night and again in the
morning when the parents left for work.
However, this circumstance has a little incriminating value. The appellant
was not a stranger, and his presence in the house was not unexplained.
However, this circumstance provides an opportunity and background for
examining the subsequent events.
30. The next circumstance is vital.
The prosecution relies principally upon PW-2, PW- 7 and PW- 9 to establish
that the victim was last seen alive in the company of the appellant.
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PW-7, Binita Mallik, testified that she saw the victim playing with other
children near the road. According to her, the appellant purchased biscuits,
offered them to the victim and thereafter took her away.
In cross-examination, she also maintained that she herself saw the
appellant offering biscuits to the victim and taking her with him. However,
when specifically questioned about time, PW-7 stated that she could not
remember it.
PW-9, Maria Munda, also testified of the appellant taking away the victim
after purchasing biscuits and proceeding towards the tea garden.
In cross-examination, PW-9 stated that she herself saw the appellant taking
away the victim at about 02.30 p.m. Her evidence on this point is based
upon what she was subsequently told by a girl named Mini (PW-2).
PW-2, Sushmita Boraik @ Mini, testified that at around 09:00 am on the
date of occurrence, she saw the accused taking away the victim with him by
holding her hand on the road near her house. On her asking the victim, the
accused replied that he would go to his uncle’s house, and they left.
According to her, later the accused came with the police, and he showed the
place where he had kept the girl hidden.
31. Thus, these three witnesses claimed to have directly seen the
victim accompanying the appellant.
PW-2 stated that at about 9.30 am, she saw the appellant taking the victim
by holding her hand towards the Tea Estate. She further stated that when
she asked the victim where she was going, the appellant replied that he was
going to his uncle’s house.
PW-7 also claimed to have seen the appellant offering biscuits to the victim
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and taking her away, but she is unable to remember the time.
PW-9 gives a similar account of the appellant purchasing biscuits and
taking the victim towards the tea garden. Still, in cross-examination, she
specifically fixed the time of the victim’s last seen with the appellant at
about 2.30 pm.
32. Therefore, the prosecution has certainly adduced direct evidence
that the victim was seen in the company of the appellant on the relevant
day.
We find no reason to discard these circumstances altogether. However, the
difficulty arises when this evidence is sought to be treated as a definite
circumstance of “last seen together.”
PW-2 places the taking away at about 9:00 am; PW-9 places it at about
2.30 pm, whereas PW-7 is unable to give any time.
The difference between 9:00 am and 2.30 pm is substantial. It cannot
simply be treated as a minor variation in recollection when the temporal
proximity is the very foundation upon which the prosecution seeks to invoke
the last seen theory.
At the same time, more importantly, PW-15, the Doctor, who conducted the
post-mortem examination, does not provide any definite assistance in
resolving this uncertainty.
In cross-examination, he candidly admits that he had not mentioned the
approximate time between the occurrence and his examination and had also
not mentioned the age of the injuries. He stated only that the injuries were
fresh and that rigor mortis was absent.
Thus, the medical evidence also does not fix the probable time of death to
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enable the Court to determine which of the materially different timings
given by the prosecution witnesses could represent the “last seen”
circumstance.
33. In this circumstance, we are inclined to accept this evidence
only to the extent that the victim was going with the appellant sometime
during the relevant day. Still, the prosecution has failed to establish
with certainty when she was last seen alive in the company of the appellant.
34. The proof that the deceased was at some stages of the day
seen with the accused is one circumstance and the proof that she was last
seen with him at a time so proximate to her death that intervention of
another person becomes improbable, is quite different.
35. We may now examine the medical evidence.
PW-15, Dr. Arup Rajbangshi, conducted the post-mortem examination
on the body of the victim. He found a complete perineal tear extending up
to below the rectum and upwards to the vaginal fornix, causing a left-sided
broad ligament hematoma in the pelvic cavity. He also found a fracture of
the atlanto-occipital joint of the neck.
In his opinion, death was due to neurogenic shock as a result of spinal cord
injury and also hemorrhagic shock. He further found marks of sexual assault
and signs & symptoms of rape and opined that injuries were caused by rape
and sexual violence.
36. Thus, the medical evidence leaves no room for doubt that the
child has been subjected to brutal sexual violence and that her death was
not natural. However, the medical evidence does not identify the person
responsible for such assault.
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37. There is another aspect of the medical evidence that assumes
importance when examining the last-seen circumstances. In cross-
examination, PW-15 candidly admits that he had not mentioned the time
between the occurrence and the post-mortem examination and has also not
mentioned the age of the injuries. He states only that the injuries were
fresh and that rigor mortis was absent. Therefore, the medical evidence
does not fix the probable time of death with any degree of precision;
resultantly, it does not bridge the uncertainty which we have already noticed
regarding the time when the victim was allegedly last seen alive in the
company of the appellant.
38. The medical evidence, though, conclusively establishes the
nature and gravity of the crime committed upon the child. Still, in the
absence of any medical or scientific evidence connecting the appellant with
the injuries, the identity of the offender must necessarily be established
through other circumstances relied upon by the prosecution.
To summarise on this circumstance, even if the medical evidence is
accepted in its entirety and it establishes beyond doubt that the child was
sexually assaulted and murdered, the prosecution must still establish
through the remaining circumstances that it was the appellant who
committed those offences.
39. The prosecution then relies upon the conduct of the
appellant after the victim went missing.
PW-1 stated that when questioned, the appellant told her that he had taken
the victim with him but left her halfway and that she had returned. PW-13
also spoke of a similar explanation given by the appellant.
PW-9 further stated that when the appellant was questioned, he tried to run
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that the villagers had apprehended the appellant and he was subsequently
taken into police custody.
40. Assuming these circumstances to be proved, they are certainly
relevant. The statement attributed to the appellant that he had taken the
victim but left her midway may also lend some corroboration to the
evidence that the victim had been in his company. His subsequent conduct
may raise suspicion. However, such conduct by itself cannot establish either
sexual assault or murder.
41. Equally, an explanation which appears false or unsatisfactory
cannot be utilised to supply a missing link in a case based on the
circumstantial evidence. Such circumstances may become an additional
link when the prosecution has otherwise established a complete chain. It
cannot substitute the primary obligation of the prosecution to establish that
chain.
42. We now come to the circumstance upon which heavy reliance
has been placed by the prosecution, namely the alleged disclosure made by
the appellant while in custody “leading to the recovery of the body.”
43. Section 27 of the Evidence Act carves out a limited exception to
the prohibition contained in Sections 25 and 26. Since the decision of the
Privy Council in Pulukuri Kotayya Vs. King Emperor reported in (1947)
0 Supreme (SC) 4, the principle is settled that only so much of
information supplied by an accused in the police custody as
distinctly relates to the fact thereby discovered is admissible. The
remaining confessional portion cannot be brought into evidence
through Section 27.
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44. Therefore, the elaborate narration given by PW-16 regarding
the alleged confession of the appellant about taking the child, sexually
assaulting her, assaulting and strangulating her and thereafter, concealing
the body cannot be treated as substantive evidence against the appellant.
What can be examined is whether the appellant furnished information
concerning the place where the dead body was concealed and whether the
dead body was actually discovered in consequence of such information.
45. According to PW-16, the appellant took the police personnel to
a pond inside Ahubari Tea Estate, went about 20 metres inside the pond
and showed the place where the dead body had been concealed beneath
water and deep mud. The dead body was thereafter recovered.
More importantly, PW-16, Lakhi Kalita (Investigating Officer) stated in
cross-examination that PW-10 and PW-11 were present with him at the
time when the appellant showed the dead body.
If this version of the Investigating Officer is corroborated by PW-10 and PW-
11, whom the Investigating Officer himself identified as being present, it
would undoubtedly constitute a very strong circumstance against the
appellant.
46. Therefore, let us have a deeper scrutiny of these testimonies of
PW-10 and PW-11.
47. PW-10, Arun Sabbar, is one of the persons specifically named
by the Investigating Officer as present during the alleged discovery. His
evidence does not support the Investigating Officer on this material aspect.
PW-10 said that when he reached the place, the police were searching for
the dead body but could not find it. He and PW-11 thereafter joined the
search. According to him, they searched in the pond and found the dead
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body amidst aquatic grass and thereafter lifted it.
In cross-examination, he further stated that the police asked them to
search for the child at that place. Significantly, he does not state that the
appellant led them to the pond or pointed out the particular place where the
body had been concealed.
PW-11, Bachchalal Sah gives a somewhat different version. He stated
that, as shown by the appellant, the police personnel asked them to search
the pond and the body was thereafter found.
However, in the cross-examination, he admitted that the appellant was not
with them when the dead body was actually recovered. According to him,
the appellant had shown the place to the police earlier.
48. Thus, there are three versions regarding an important
circumstance.
PW- 16 stated that the appellant himself took them into the pond and
showed the precise place where the body was concealed.
PW-10, whom the Investigating Officer specifically named as being present,
does not speak of any such showing by the appellant. Instead, described a
search undertaken by the police personnel and the villagers, which resulted
in the body being found amidst aquatic grass.
PW-11 stated that the appellant had shown the place earlier, but admitted
that the appellant was not present when the body was actually recovered.
49. These discrepancies cannot be termed as insignificant details
of recovery, as urged by the prosecution. The very foundation of the
prosecution’s reliance upon Section 27 is that the fact was discovered in
consequence of information furnished by the appellant. Therefore, it is this
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fact which must be proved first.
50. The evidence of the PW-2 also deserves notice in this context.
She states that later the accused came with the police and showed the
place where he had kept the girl hidden, which lends some support to the
prosecution case of pointing out by the accused. However, she admittedly
did not witness the actual recovery and only heard later that the dead body
had been recovered from a pond. Thus, her evidence, though it discloses
that the accused accompanied the police and showed a place, does not
resolve the material inconsistency among PW-16, PW-10, and PW-11
regarding whether the precise place of concealment and the body itself
were discovered as a consequence of information furnished by the accused.
51. We are conscious that absence of a formal disclosure statement
or recovery memorandum by itself would not necessarily be fatal. Section
27 also does not mandate that the statement to the police must invariably
be made in the presence of independent witnesses.
Praveen Kumar Vs. State of Karnataka reported in (2003) 12 SCC
199 recognises this position. There is no settled principle that every
disclosure statement need not be discarded merely on account of the fact
that those were not recorded in the presence of independent witnesses,
though the same may be desirable.
52. In the present case, when there is no independent witness to the
discovery allegedly led by the appellant, we are required to
consider whether the testimony of the police officer alone inspires
confidence.
53. According to the Investigating Officer himself, the independent
persons were actually present when the appellant allegedly showed the
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concealed body. One of those very persons, PW-10, does not support him
on that material fact while PW-11 gives a version which does not fully
correspond with that of the Investigating Officer.
In such circumstances, the absence of a recovery memorandum or
disclosure statement assumes some significance. Though preparation of
such a document is not an indispensable requirement under Section 27, in
the present case, when there is no contemporaneous record, no evidence
which could lend assurance to the materially different oral versions
regarding who showed the place, who was present, how the body was
actually located, the absence of a recovery memorandum assumes
significance.
54. There is another aspect which deserves notice.
PW-16 described the body as having been concealed beneath water and
deep mud, whereas PW-10 described its recovery from deep mud and
according to PW-10, the recovery was amidst aquatic grass.
The condition of the body as recorded in the inquest and the post-mortem
does not suggest the existence of any mud or aquatic grass, though such
fact may not be fatal to the prosecution case.
55. To conclude on this circumstance, we must note that a
distinction must be maintained between the two different facts; the dead
body was recovered from the pond is proved and that it was
discovered in consequence of the information furnished by the
appellant.
On scrutiny of the evidence and as discussed hereinabove, we find it
difficult to hold that the second circumstance has been established with the
degree of certainty required in a case resting entirely upon the
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circumstantial evidence.
Even otherwise, as held in Mustkeem @ Sirajuddin Vs State of
Rajasthan reported in (2011) 11 SCC 724, disclosure by an accused
does not automatically establish that he committed the offence. The
prosecution must still establish the necessary link between the fact
discovered and the commission of the offence.
56. The prosecution next contends that once the victim was seen
with the appellant, it was for him to explain when and in what
circumstances they parted company.
57. It’s true that the principle recognised in the State of
Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254 that where a
person is proved to have been last seen with the deceased, an explanation
as to when and how they parted company is upon such person, also
assumes relevance in the present case. However, such a principle and
section 106 of the Evidence Act do not relieve the prosecution of its primary
burden of establishing the foundational fact. Before the burden can shift to
the accused, the prosecution must establish the foundational circumstances.
58. In the present case, the difficulty arises at the foundational
stage itself. The prosecution has not established with certainty the time at
which the victim was last seen with the appellant. More importantly, the
circumstance of discovery of the concealed body at the instance of the
appellant, which could have furnished a strong connecting link, is itself
doubtful for the reasons recorded hereinabove. Therefore, section 106 of
the Evidence Act cannot be invoked to cure these deficiencies.
59. We also cannot treat the unsatisfactory or false explanation of
the appellant as substantive evidence of guilt. A false explanation may
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provide an additional link where the prosecution has otherwise established a
complete chain. It cannot be utilised to supply a missing link.
60. In our cumulative assessment, the prosecution has succeeded in
establishing that the appellant was known to the family and had stayed in
the house of the victim on the previous night of the occurrence; that he was
present there when the parents left for work; that the victim was thereafter
seen in his company sometimes during the day; that the biscuits were
purchased and offered to the child; that the child thereafter went missing;
that the appellant was subsequently questioned and apprehended; and that
the body of the victim was eventually recovered from a pond.
61. These circumstances undoubtedly give rise to a very strong
suspicion against the appellant.
62. To convert these circumstances into proof beyond reasonable
doubt, the prosecution relied upon two connecting circumstances, the “last
seen circumstance” and “the discovery of the concealed body” at
the instance of the appellant.
63. However, as regards the first circumstance, the evidence on
record establishes that the victim was in the company of the appellant at
some point of time during the relevant date. Still, the prosecution has failed
to establish with certainty the time when they were last seen together.
PW 7 gives no time, whereas PW 9 places it at 2.30 p.m. and PW 2
describes it as 9 a.m. The medical evidence does not bridge the temporal
gap by fixing even a tentative time close enough to the definite last-seen
time to reasonably exclude intervention by another person.
Therefore, the circumstance remained relevant but weak.
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64. As regards the second circumstance, the prosecution has
undoubtedly established recovery of the body from the pond.
What it has failed to establish with equal certainty is that the concealed
body was discovered in consequence of information furnished by the
appellant.
The evidence of PW-10, PW-11, and PW-16 does not present a consistent
account of the alleged discovery led by the appellant. This assumes
particular importance because PW 10 and PW 11 are the very independent
persons whom the IO associates with the recovery.
The absence of a contemporaneous recovery memo, though not
independently fatal, further deprives the prosecution of corroboration which
could have resolved this material difference.
Once the inadmissible confessional narration made to the police is excluded
from consideration, these two witnesses become more important.
The court cannot permit the inadmissible portion of the police statement to
lend credibility to the disputed discovery indirectly.
Again, the medical evidence may establish beyond doubt that a brutal crime
was committed upon the child, but the gravity and the brutality of the
offence cannot dilute the standard of proof.
65. What, therefore, remains is a set of circumstances that create
grave suspicion.
The appellant had opportunity; the child was seen with him, she thereafter
disappeared, his subsequent conduct was suspicious, and her dead body
was recovered from the pond. But there remains a significant gap between
these circumstances and the conclusion that it was the appellant and none
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else who committed the sexual assault and homicidal act.
66. As observed in Kanhaiyalal vs. The State of Rajasthan,
reported in (2014) 4 SCC 715, last seen together does not, by itself,
establish the commission of the crime. There must be something more
connecting the accused with the offence.
In the present case, the prosecution sought to provide that “something
more” principally through the alleged discovery. Once the discovery itself
becomes doubtful, the last-seen circumstance cannot bear the entire weight
of the prosecution’s case.
The circumstances proved by the prosecution, therefore, do not form such a
complete and unbroken chain as would exclude every reasonable hypothesis
other than the guilt of the appellant.
Neither section 106 of the Evidence Act nor the conduct or explanation of
the appellant can be invoked to fill up this evidentiary gap.
67. The victim was a young child, and the offence committed upon
her was undoubtedly heinous. Nevertheless, criminal law does not permit a
conviction based on the heinous nature of the crime or the strength of
suspicion against a particular person. The prosecution must travel the entire
distance from “may have committed” to “must have committed”
through legally admissible evidence.
On a cumulative assessment of the evidence, we are therefore unable to
hold that the prosecution has travelled that distance. The chain of
circumstances remains incomplete. The appellant would therefore be
entitled to the benefit of the doubt.
68. Accordingly, for the discussions made and reasons recorded
Page No.# 24/25
hereinabove, the judgment and sentence dated 21.12.2020 passed by the
learned Special Judge cum Additional sessions Judge (FTC), Biswanath
Chariali, Sonitpur in Spl (POCSO) Case No.01/2019, corresponding to GR
Case No.1002/2018 and Sootea PS Case No.206/2018, under sections
302/363/376-A/201 IPC read with section 6 of POCSO Act, 2012, stands set
aside and the appellant is acquitted of the charges leveled against him
granting him benefit of doubt.
69. The accused, Mangal Paik, shall be released forthwith, if not
required in connection with any other case.
70. Accordingly, the Death Sentence Reference stands rejected, and
the Criminal Appeal (J) 14/2021 stands allowed.
71. The TCR to be returned to the Trial Court forthwith.
72. Registry to forward a copy of this judgment and order to the
concerned Superintendent of the District Jail, for compliance and record.
73. While parting with the records, it is observed that the learned
Trial Court had already invoked the provisions relating to victim
compensation and directed the District Legal Services Authority, Biswanath
Chariali, to consider and process the claim of the victim’s family in
accordance with the law applicable to the victim compensation scheme as
envisaged under section 357-A Cr.P.C.
74. The direction issued by the Trial Court shall accordingly remain
undisturbed. It is, however, expected that the concerned authority shall
ensure expeditious compliance so that the intended rehabilitative support
reaches the beneficiaries without undue delay, if such compensation has not
already been paid.
Page No.# 25/25
75. Registry shall ensure that Ms P. Baruah, learned counsel, be paid
the legal fee, as payable to a Legal Aid Counsel as per the norms fixed by
the Legal Services Authority.
JUDGE CHIEF JUSTICE Comparing Assistant
