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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.42 OF 2018  

BAIJU KUMAR SONI & ANR.                       Appellants  

                               VERSUS  

STATE OF JHARKHAND                             Respondent    

J U D G M E N T  

 Uday Umesh Lalit, J.  

1. This appeal challenges the judgment and final order  

dated 14.07.2017 passed by the High Court of Jharkhand at  

Ranchi dismissing Criminal Appeal No.887 of 2009 preferred  

by the appellants herein and thereby affirming their  

conviction as recorded by the Trial Court in respect of  

offence punishable under Sections 364-A, 201, 302 read with  

34 IPC.  

2. According to the prosecution, a minor girl aged about  

3½ years went missing on 08.01.2006 while she was playing  

in front of her house.  PW10 Anil Prasad Soni, father of  

the girl searched for the girl on the first day and

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thereafter lodged an information vide Sanha No.142/06 dated  

09.01.2006 at 9.00 a.m. with the Officer In-charge of  

Bhurkunda Police Station, based on which a crime was  

registered vide FIR No.11/06 dated 13.01.2006 under  

Sections 364 and 365 IPC with Police Station Bhurkunda, S.  

Div. Ramgarh, District Hazaribagh.  

3. According to the prosecution, a call was received by  

said PW10 on 11.01.2006 at about 1236 Hours, from Ramgarh  

STD Booth, from an unknown person threatening him that his  

brother was getting smarter for which said PW10 may have  

to pay the price.  The caller told PW10 that his daughter  

would reach by the evening and told him not to tell the  

administration.   

4. On the next day i.e. on 12.01.2006 at about 1335 Hours,  

PW10 again received a call from another STD booth i.e. from  

Patratu STD Booth, but it was a missed call. It appears  

that around the same time, another call was received by PW4  

Uday Soni, brother of said PW10.  The caller threatened  

said PW4 and told him that the caller had kidnapped his  

niece. When the caller was asked about the proof of the  

fact, the caller stated that PW4 could get the proof on the  

roof of the temple near their house. Thereafter, a poly bag

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was found on the roof of the temple in which there was one  

red top and slippers of the girl as well as a threatening  

letter (Exhibit-II with Mark X – Written Paper of a copy  

for Identification)  

5. It appears that a dead body of the girl was recovered  

in a black coloured rexin bag from the Dam on or about  

18.01.2006 by Khelari Police Station.   

Postmortem Report indicated:  

“Nylon cloth (make like rassi), red in colour, is  

tied around the neck.  The knot is present on left  

side of neck which is a fixed knot.  After removing  

the ligature material there is a ligature mark ½  

cm width situated around the neck.  It is  

transverse and continues with contusion of soft  

tissue underneath.  

Opinion-(1) Above noted ligature mark is ante-

mortem.  

(2) Death is due to Asphyxia as a result of  

strangulation.  

(3) Time of Death – Between 3 days to 7 days.”  

The dead body of the girl was identified to be that of  

the daughter of PW10 and thereafter Sections 302 and 201  

IPC were also added in respect of the crime already  

registered.  

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6. During the course of the investigation, the appellants  

were arrested.  It is not clear from the record how and by  

whom the role of the appellants in the crime was suspected  

to cause their arrest. The appellants were neither named  

in the FIR nor any person had named them in any statement  

to the police.  Pertinently, the FIR had named somebody  

else as suspect. Soon after their arrest, the confessional  

statements of the appellants were recorded by the police  

pursuant to which following items were recovered:  

(i) A Scarf of the girl was recovered from the  

house of appellant no.2;  

(ii) A drawing book was recovered from the house of  

appellant no.1 from which a piece of paper was  

torn on which threatening letter (Exhibit II)  

was stated to have been written.  

  7. After completion of investigation, charge-sheet for the  

offences punishable under Sections 364-A, 201, 302 read  

with 34 IPC was submitted against the appellants and they  

were tried for having committed said offences.  

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8. The evidence unfolded by the prosecution mainly  

comprised of:   

(i) PW10, his brother PW4 who deposed having received  

telephone calls but the witnesses could not  

identify the caller from the voice;  

(ii) The prosecution also placed reliance on the  

testimony of PW7 Vikas Kumar who used to run  

Vikas STD Booth at Patratu produced two bills  

(Exhibit-I) indicating that on 12.01.2006 two  

calls were made from his STD booth at 1327 Hours  

and 1338 Hours to two Mobile Nos.9934152854 and  

9431336988 respectively.  PW7 identified the  

appellants to be the persons who had come to his  

STD Booth on the relevant date and made those two  

calls.  

(iii)PW5 Uttam Kumar Kharbar deposed that on  

09.01.2006, when he boarded a train from  

Bhurkunda Railway Station, he had seen the  

appellants carrying a stuffed rexin bag which  

they had carried along with them.  According to  

the prosecution, it was that rexin bag in which  

the dead body of the girl was ultimately found  

in the Dam.

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9. The following circumstances were thus relied upon by  

the prosecution:  

(1) On 12.01.2006 PW7 who was running the STD Booth  

had seen both the appellants at his telephone  

booth and two calls were made by them to mobile  

numbers indicated above at 1327 Hours and 1338  

hours.  

(2) A Scarf was found in the house of the second  

appellant.  

(3) A drawing book was found in the house of first  

appellant which could be associated with the  

threatening letter (Exhibit II).  

(4) PW5 had seen both the appellants with a stuffed  

rexin bag on 09.01.2016 boarding a train at  

Bhurkunda Railway Station.  

(5) The dead body of the girl was ultimately found  

in a rexin bag at a distance about 50 kms. from  

the house of PW10.  

(6) Some wrappers of Chocolates and Biscuits were  

found near the house of the appellants.  

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10. On the basis of these circumstances, the prosecution  

contended that the offences in question were established  

against the appellants.  The case of the prosecution was  

accepted by the Trial Court, which by its judgment and order  

dated 17-20.04.2009 convicted both the appellants and  

sentenced them to suffer 10 years of imprisonment for the  

offence under Section 364-A IPC and to suffer life  

imprisonment for the offence under Section 302 read with  

Section 34 IPC.  Though convicted, no separate order of  

sentence was recorded in respect of offence under Section  

201 read with Section 34 IPC.  All the sentences were  

directed to run concurrently.  

11. The appellants being aggrieved approached the High  

Court of Jharkhand at Ranchi by filing Criminal Appeal  

No.887 of 2009, which came to be rejected by the High Court.  

12. According to the High Court, the recovery of the Scarf  

of the deceased, recovery of the drawing book, pages of  

which were used for writing threatening letter as well as  

the fact that PW5 had seen the appellants with the same  

rexin bag in which dead body was found, were circumstances  

sufficient to convict the appellants.  

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13. In this appeal, we heard learned counsel for the  

appellants as well as the learned counsel for the  

respondent-State and with their assistance, we have gone  

through the entire record.  

14. The law on the point is very well settled that in a  

case based on circumstantial evidence, every circumstance  

must be fully proved and all the circumstances must form a  

chain of evidence so complete as to exclude every hypothesis  

other than the guilt of the accused.  It was stated by this  

Court in Sharad Birdhichand Sarda v. State of Maharashtra1:  

“153. A close analysis of this decision would show  

that the following conditions must be fulfilled  

before a case against an accused can be said to be  

fully established:  

(1) the circumstances from which the  conclusion of guilt is to be drawn should  

be fully established.  

It may be noted here that this Court indicated that  

the circumstances concerned 'must or should' and  

not 'may be' established. There is not only a  

grammatical but a legal distinction between 'may  

be proved' and 'must be or should be proved' as  

was held by this Court in Shivaji Sahabrao Bobade  

v. State of Maharashtra, (1973) 2 SCC 793, where  

the following observations were made:  

 1(1984) 4 SCC 116

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"Certainly, it is a primary principle that the  

accused must be and not merely may be guilty  

before a court can convict and the mental  

distance between 'may be' and 'must be' is  

long and divides vague conjectures from sure  

conclusions."  

(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.”  

15. In Nizam and Another vs. State of Rajasthan2, the law  

on the point was reiterated while acquitting the accused  

of the charges under Section 302 read with 201 IPC.   

Paragraphs 9 and 10 of the decision were:-  

“9. The principle of circumstantial  

evidence has been reiterated by this Court in  

a plethora of cases. In Bodhraj v. State of  

J&K (2002) 8 SCC 45, wherein this Court quoted  

 2(2016) 1 SCC 550  

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a number of judgments and held as under: (SCC  

pp. 55-56, paras 10-11)  

10. It has been consistently laid down by  

this Court that where a case rests squarely on  

circumstantial evidence, the inference of  

guilt can be justified only when all the  

incriminating facts and circumstances are  

found to be incompatible with the innocence of  

the accused or the guilt of any other person.  

(See Hukam Singh v. State of Rajasthan (1977)  

2 SCC 99, Eradu v. State of Hyderabad AIR 1956  

SC 316, Earabhadrappa v. State of Karnataka  

(1983) 2 SCC 330, State of U.P. v. Sukhbasi  

(1985) Supp SCC 79, Balwinder Singh v. State  

of Punjab (1987) 1 SCC 1 and Ashok Kumar  

Chatterjee v. State of M.P. (1989) Supp (1) SCC  

560). The circumstances from which an inference  

as to the guilt of the accused is drawn have  

to be proved beyond reasonable doubt and have  

to be shown to be closely connected with the  

principal fact sought to be inferred from those  

circumstances. In Bhagat Ram v. State of Punjab  

AIR (1954) SC 621, it was laid down that where  

the case depends upon the conclusion drawn from  

circumstances the cumulative effect of the  

circumstances must be such as to negative the  

innocence of the accused and bring home the  

offences beyond any reasonable doubt.  

  11. We may also make a reference to a  

decision of this Court in C. Chenga Reddy  

v. State of A.P. (1996) 10 SCC 193, wherein  

it has been observed thus: (SCC pp. 206-07,  

para 21)  

‘21. In a case based on circumstantial  

evidence, the settled law is that the  

circumstances from which the conclusion  

of guilt is drawn should be fully proved  

and such circumstances must be  

conclusive in nature. Moreover, all the  

circumstances should be complete and  

there should be no gap left in the chain

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of evidence. Further, the proved  

circumstances must be consistent only  

with the hypothesis of the guilt of the  

accused and totally inconsistent with  

his innocence.’”  

10. In Trimukh Maroti Kirkan v. State of  

Maharashtra (2006) 10 SCC 681, this Court held  

as under: (SCC p. 689, para 12)  

“12. In the case in hand there is no  

eyewitness of the occurrence and the case  

of the prosecution rests on circumstantial  

evidence. The normal principle in a case  

based on circumstantial evidence is that  

the circumstances from which an inference  

of guilt is sought to be drawn must be  

cogently and firmly established; that those  

circumstances should be of a definite  

tendency unerringly pointing towards the  

guilt of the accused; that 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 they should be incapable  

of explanation on any hypothesis other than  

that of the guilt of the accused and  

inconsistent with their innocence.”  

The same principles were reiterated in  

Sunil Clifford Daniel v. State of Punjab (2012)  

11 SCC 205, Sampath Kumar v. Inspector of  

Police (2012) 4 SCC 124 and Mohd. Arif v. State  

(NCT of Delhi) (2011) 13 SCC 621 and a number  

of other decisions.”    

16. In the light of these settled principles, from the  

facts and circumstances it is evident:   

a) Though PW7 stated that two calls were made from  

his STD Booth on 12.01.2006 at about 1327 Hours

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and 1338 Hours to specified mobile numbers,  

nothing has been brought on record that those  

two mobile numbers either belonged to PW4 and  

PW10 or were in any way under their control.   

In order to establish as a circumstance that  

on the relevant day threatening calls were  

received by the said PWs 4 and 10 from the  

appellants, the important fact which ought to  

have been established was that those two mobile  

numbers either belonged to or were under the  

control of said PWs 4 and 10. Even if we accept  

the theory that said PW7 had identified the  

appellants to be the ones who had made two  

calls, that does not lead us to infer that the  

calls must have been made to PWs4 and 10.  This  

circumstance has not been fully established  

which could be read against the appellants.  

b) Though drawing book had been received from the  

house of appellant no.1 and it was the case of  

the prosecution that the threatening letter  

(Exhibit-II) was written on a piece of paper  

from said drawing book, no attempts were made  

either to have any forensic analysis or examine

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handwriting expert to establish that the  

writing in the threatening letter was either  

of the appellants or could be associated with  

them.    

17. Circumstance No.4 as stated above suggests that the  

dead body of the deceased was carried by the accused in a  

rexin bag on the day after the girl went missing.  The dead  

body was found ten days later on 18.01.2006.  The post  

mortem, conducted thereafter, indicated time of death to  

be between 3 to 7 days.  Even if the outer margin is  

considered to be the limit, the circumstance by itself does  

not fit in, assuming it to be completely against the  

appellants.    

18. We are then left with circumstances at Serial Nos.2, 5  

and 6.  These circumstances do not form a chain so complete  

as not to leave any reasonable doubt or exclude every  

possible hypothesis except the one to be proved, nor are  

the circumstances sufficient and adequate to hold that the  

prosecution had established its case beyond any reasonable  

doubt.  

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19. Considering the totality of the circumstances, in our  

view, the prosecution has failed to establish the case  

against the appellants. Consequently, the appellants are  

entitled to benefit of doubt.  We, therefore, allow this  

appeal and acquit the appellants of the charges levelled  

against them.  

The appellants be released immediately, unless their  

custody is required in connection with any other offence.  

    ...........................J.  

               [UDAY UMESH LALIT]  

    ...........................J.  

           [VINEET SARAN]      

NEW DELHI;  

AUGUST 1, 2019  

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ITEM NO.108               COURT NO.7               SECTION II-A    

              S U P R E M E  C O U R T  O F  I N D I A  

                      RECORD OF PROCEEDINGS  

Criminal Appeal No.42/2018    

BAIJU KUMAR SONI & ANR.                            Appellants    

                               VERSUS  

STATE OF JHARKHAND                                 Respondent    

(IA No.27276/2019 – FOR GRANT OF BAIL)  

Date : 01-08-2019 This matter was called on for hearing today.    

CORAM :   

        HON'BLE MR. JUSTICE UDAY UMESH LALIT  

        HON'BLE MR. JUSTICE VINEET SARAN  

For Appellant(s)   Mr. Shree Prakash Sinha, Adv.      Mr. Rakesh Mishra, Adv.      Ms. Mohua Sinha, Adv.  

   Ms. Jagrati Bharti, Adv.      Mr. Shekhar Kumar, AOR                       

For Respondent(s)  Mr. Merusagar Samantaray, AOR  

         UPON hearing the counsel the Court made the following  

                            O R D E R  

This appeal is allowed, in terms of the Judgment.  

Pending application(s), if any, shall stand disposed of.  

  (MUKESH NASA)                              (SUMAN JAIN)  

     COURT MASTER                              BRANCH OFFICER  

(Signed Judgment is placed on the file)