MD. BANI ALAM MAZID @ DHANversusSTATE OF ASSAM

                 [2025] 2 S.C.R. 2006 : 2025 INSC 260

                     Md. Bani Alam Mazid @ Dhan
                                  v.
                           State of Assam
                     (Criminal Appeal No. 1649 of 2011)
                               24 February 2025
               [Abhay S. Oka and Ujjal Bhuyan,* JJ.]


                            Issue for Consideration
       In a case where the appellant alongwith a co-accused was
       alleged to have kidnapped and murdered the minor daughter of
       PW1, the issues for consideration were: (i) Whether the chain of
       circumstantial evidence based on which the High Court convicted
       the Appellant was complete; (ii) Whether the circumstance of last
       seen together can be made the basis of conviction; (iii) Whether
       the circumstance of recovery of the dead body following the
       Appellant’s statement was proof beyond reasonable doubt against
       the Appellant; (iv) Whether motive is an important link in a case
       based on circumstantial evidence.

                                   Headnotes†
       Circumstantial evidence – Prosecution case of kidnapping
       and murder based on three circumstances: (a) accused-
       appellant and victim were last seen together; (b) extrajudicial
       confession of appellant; and (c) recovery of dead body – None
       of the circumstances were proved, not to speak of proving
       the complete chain of circumstances – Conviction by courts
       below not justified – Penal Code – ss.366(A)/302/201/34:
       Held: The High Court had erred in discarding the circumstance of
       extra-judicial confessions made by the appellant before PW Nos.5,
       6, 7, 8, 10 and 11 on the ground that those confessions were
       made in the presence of the police and thus would be hit by the
       provisions of Section 25 of the Evidence Act, 1872 – Therefore,
       the High Court disbelieved one of the three circumstances relied
       upon by the prosecution as a part of the chain of evidence to
       prove the Appellant’s guilt – However, the High Court still convicted
       the Appellant on the strength of the remaining two pieces of
       circumstantial evidence – Therefore, it could not be said that the


* Author
[2025] 2 S.C.R.                                                             2007

            Md. Bani Alam Mazid @ Dhan v. State of Assam


     chain of circumstantial evidence was complete and that no other
     inference except the guilt of the accused was possible therefrom –
     The Appellant therefore was entitled to benefit of doubt, since his
     guilt was not established beyond all reasonable doubt. [Paras 23-25]

     Circumstantial Evidence – Ramu Appa Mahapatar v. State of
     Maharashtra, 2025 INSC 147 – Discussed:
     Held: In Ramu Appa Mahapatar v. State of Maharashtra, this Court
     dealt with the limitations of an extrajudicial confession which is
     one of the instances of circumstantial evidence – In that context,
     this Court following the consistent line of judicial precedents held
     that circumstantial evidence is not direct to the point in issue but
     consists of evidence of various other facts which are so closely
     associated with the fact in issue that taken together, they form a
     chain of circumstances from which the existence of the principle fact
     can be legally inferred or presumed – The chain must be complete
     and each fact forming part of the chain must be proved – Where
     a case rests on circumstantial evidence, 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. [Para 22]

     Murder – Allegations of – Victim, a minor girl – Circumstance
     of last seen together with accused – Inference of guilt – If
     can be drawn:
     Held: In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715,
     this Court held that circumstances of last seen together does not
     by itself lead to the inference that the accused committed the
     offence – There must be something more than mere non-explanation
     on the part of the accused to establish nexus between him and
     the crime – In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755,
     this Court held that the circumstance of last seen together may
     normally be considered to find the accused guilty when the time
     gap between when the accused and deceased were last seen
     together alive and when the deceased was found dead is so small
     that the possibility of any other person being with the deceased
     is ruled out – However, it cannot be said that evidence of last
     seen together must be rejected merely due to a time gap – If
     the prosecution is able to lead evidence making the likelihood of
     any person other than the accused being the author of the crime
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    impossible, then even with a long duration, last seen together can
    be considered as part of the chain of circumstances to prove guilt –
    In Anjan Kumar Sharma v. State of Assam, (2017) 14 SCC 359,
    it was laid down that where all the other links have been made
    out satisfactorily and the circumstances point to the guilt of the
    accused, the circumstances of last seen together, and absence of
    explanation would provide the complete link to the chain – In the
    instant case, the evidence of PW-2 and PW-3 clearly shows that
    there was considerable time gap between the time the appellant
    and the deceased were last seen together alive and the recovery
    of the dead body – Therefore, it cannot be said with any degree
    of certainty that it was the appellant and the appellant alone who
    had committed the offence. [Paras 30-33]

    Motive – Recovery of dead body of minor girl – Accused-
    appellant and deceased were allegedly in love – Role of, in
    proving circumstantial evidence – Explained:
    Held: In Anwar Ali v. State of Himachal Pradesh, (2020) 10 SCC
    166 it was observed that in a case where direct evidence of eye
    witness is available, motive loses its importance – But absence of
    motive in a case based on circumstantial evidence is a factor that
    weighs in favour of the accused – Similarly, in Shivaji Chintappa
    Patil v. State of Maharashtra, (2021) 5 SCC 626, it was observed
    that in case of circumstantial evidence, motive plays an important
    link to complete the chain of events – In Nandu Singh v. State
    of M.P., 2022 SCC OnLine SC 1454, it was again observed that
    complete absence of motive assumes a different complexion and
    such absence definitely weighs in favour of the accused – As in
    this case there was not any motive for the Appellant to cause
    death of the deceased, the same is another factor that weighs in
    favour of the accused. [Paras 48-52]

    Confession – In police custody – Evidence Act, 1972 – s.26 –
    Scope of – Explained:
    Held: According to Section 26 of the Evidence Act, no confession
    made by any person while he is in the custody of a police officer
    shall be proved as against such person unless it is made in the
    immediate presence of the Magistrate – This is an exception to the
    absolute bar of Section 25 which declares that no confession made
    to a police officer shall be proved as against a person accused of
    any offence. [Para 35.1]
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            Md. Bani Alam Mazid @ Dhan v. State of Assam


     Evidence Act, 1872 – s.27 – Scope of – Extra-judicial
     confessions of accused-appellant – Discovery of dead body
     of minor girl pursuant thereto – Admissibility of:
     Held: Section 27 of the Evidence Act is couched in the language of
     a proviso and immediately follows Section 26, and has to be read
     conjointly with the latter – While Section 26 deals with confession
     made by an accused while in custody of police, Section 27 deals
     with such information received from the accused which may be
     proved – Section 27 provides that when any fact is deposed to as
     discovered in consequence of information received from a person
     accused of any offence, in the custody of a police officer, so much
     of such information, whether it amounts to a confession or not, as
     relates distinctly to the fact thereby discovered, may be proved – In
     Asar Mohammad v. State of Uttar Pradesh, (2019) 12 SCC 253,
     this Court held that the word ‘fact’ occurring in Section 27 of the
     Evidence Act is not limited to ‘actual physical material object’, but
     Discovery of fact arises by reason that the information given by the
     accused exhibited the knowledge or the mental awareness of the
     informant as to its existence at a particular place which includes
     discovery of the object, the place from which it is discovered and
     the knowledge of the accused as to its existence – Applying the
     law relating to Section 27 of the Evidence Act, it can be seen that
     the circumstances leading to discovery is intrinsically connected
     with the circumstance of extra-judicial confessions made by the
     appellant and the other co-accused before PW-5, PW-6, PW-7,
     PW-8, PW-10 and PW-11 – We have already noted that the High
     Court had rejected the circumstance of extra-judicial confessions
     as being in-admissible evidence. [Paras 35, 35.2, 38, 39]

                              Case Law Cited
     Nandu Singh v. State of M.P., 2022 SCC Online SC 1454; Ramu
     Appa Mahapatar v. State of Maharashtra, 2025 INSC 147 : [2025]
     2 SCR 388; State of Goa v. Sanjay Thakran [2007] 3 SCR 507 :
     (2007) 3 SCC 755; Kanhaiya Lal v. State of Rajasthan [2014] 3
     SCR 744 : (2014) 4 SCC 715; Anjan Kumar Sarma v. State of
     Assam, (2017) 14 SCC 359; Vasanta Sampat Dupare v. State
     of Maharashtra [2014] 14 SCR 961 : (2015) 1 SCC 253; Asar
     Mohammad v. State of Uttar Pradesh [2018] 13 SCR 248 : (2019)
     12 SCC 253; Anwar Ali v. State of Himachal Pradesh [2020] 9
     SCR 878 : (2020) 10 SCC 166; Shivaji Chintappa Patil v. State of
     Maharashtra [2021] 2 SCR 617 : (2021) 5 SCC 626 – relied on.
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     Madho Singh v. State of Rajasthan (2010) 15 SCC 588 – referred to.
     Pulukuri Kottaya v. King-Emperor, AIR 1947 PC 67 – referred to.

                               List of Acts
     Evidence Act, 1872; Penal Code, 1860; Code of Criminal Procedure,
     1973.

                            List of Keywords
     Circumstantial Evidence; Discovery; Chain of Events; Last seen
     theory; Minor girl; Confession; Police custody.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     1649 of 2011
     From the Judgment and Order dated 11.08.2010 of the High Court
     of Guwahati, Assam in CRLA No. 88 of 2007

                        Appearances for Parties
     Advs. for the Appellant:
     Azim H.Laskar, Bikas Kar Gupta, Ms. Bebarati Sadhu, Harsh
     Verma, Abhijit Sengupta.
     Advs. for the Respondent:
     Mrs. Diksha Rai, Arijit Dey, Apurva Sachdev, Ishaan Kapoor,
     Shuvodeep Roy.

                Judgment / Order of the Supreme Court

                                Judgment

     Ujjal Bhuyan, J.

     This criminal appeal by special leave is directed against the judgment
     and order dated 11.08.2010 passed by the Gauhati High Court at
     Guwahati (High Court) dismissing Criminal Appeal No. 88/2007 filed
     by the appellant.
2.   Criminal Appeal No. 88/2007 was filed by the appellant against
     the judgment and order dated 20.03.2007 passed by the learned
     Sessions Judge, Kamrup in Sessions Case No. 16(K)/2005 whereby
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            Md. Bani Alam Mazid @ Dhan v. State of Assam



     the appellant was convicted under Sections 366(A)/302/201/34 of the
     Indian Penal Code, 1860 (IPC). Appellant was sentenced to suffer
     rigorous imprisonment (RI) for 5 years alongwith a fine of Rs. 3,000.00
     with a default stipulation for the offence under Section 366(A) IPC.
     For the offence under Section 201 IPC, he was sentenced to undergo
     RI for 5 years alongwith a fine of Rs. 3,000.00, again with a default
     stipulation. Appellant was also sentenced to undergo RI for life and
     to pay a fine of Rs. 3,000.00 with a default stipulation for the offence
     under Section 302 IPC.
3.   Prosecution case in brief is that on 26.08.2003 at about 02:00 PM,
     PW-1 Amzad Ali lodged a first information before the Hajo Police
     Station stating that on 22.08.2003 at about 03:30 PM, appellant
     alongwith Mohd. Jahangir Ali (co-accused) had kidnapped his minor
     daughter Marjina Begum (16 years). The first informant alleged that
     his daughter had taken away Rs. 60,000.00 in cash from his house.
     He stated that though there was a search for the girl, she could not
     be traced out. It was further mentioned that one Aklima Bibi, mother
     of the appellant Bani Alam Majid, and one Farid Ali, husband of
     the elder sister of the appellant, came and told the first informant
     that the appellant had kidnapped his daughter and had kept her at
     Mukalmuwa with the intention of marrying her. First informant stated
     that the aforesaid two persons had assured him that their marriage
     would be arranged and, therefore, requested him and his family
     members not to lodge any complaint before the police. However, as
     there was no trace of the missing girl for about four days, the FIR
     in question was lodged.
     3.1. On the basis of the aforesaid first information, Hajo P.S. Case
          No. 131/2003 came to be registered under Sections 366(A)/34
          IPC. Appellant and co-accused Jahangir Ali were arrested. In
          the course of investigation, the dead body of the victim girl was
          found. At the conclusion of the investigation chargesheet was
          submitted against both the accused persons under Sections
          366(A)/302/201/34 IPC. The offences under Sections 366(A)
          and 302 IPC being exclusively triable by the Court of Sessions,
          the case was committed to the Court of Sessions at Kamrup,
          Guwahati.
     3.2. Trial Court framed charge against the accused persons under
          the aforesaid provisions to which they pleaded not guilty and
          claimed to be tried. To prove its case, prosecution examined
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          as many as 14 witnesses. Co-accused Jahangir Ali examined
          himself as DW-1. After the evidence was recorded, statement
          of the accused persons including that of the appellant were
          recorded under Section 313 of the Code of Criminal Procedure,
          1973 (Cr.P.C.). At the conclusion of the trial, learned Sessions
          Judge convicted and sentenced the appellant as well as the
          co-accused as above.
4.   Aggrieved by the aforesaid conviction and sentence, both the
     accused persons preferred separate appeals before the High
     Court. While appeal of the appellant was registered as Criminal
     Appeal No. 88/2007, the other appeal was registered as Criminal
     Appeal No. 82(J)(2007). High Court vide the judgment and order
     dated 11.08.2010 (impugned judgment) set aside the conviction of
     the accused persons including that of the appellant under Section
     366(A) IPC but affirmed their conviction under Sections 302/201/34
     IPC. Sentences imposed for commission of the aforesaid offences
     by the Court of Sessions were maintained. The related appeals were
     accordingly dismissed.
5.   Mr. Ajim H. Laskar, learned counsel for the appellant submits that
     it is a case of circumstantial evidence. High Court while discarding
     the extra-judicial confessions of the appellant made before some of
     the witnesses on the ground that those were made in the presence
     of the police, however held that the other two circumstances of
     last seen together and leading to discovery were proved against
     the appellant and on such basis, convicted the appellant under
     Section 302 IPC. On the theory of last seen together, one of the two
     circumstances, learned counsel submits that though PW-2 is stated
     to have seen the two together, she herself deposed that there was
     neither any coercion by the appellant nor any force applied by him
     while taking away the victim in the vehicle. PW-2 neither resisted
     nor raised alarm. Though the victim remained untraceable thereafter
     for several days, she again did not raise any alarm. He submits that
     High Court had accepted that there was no force applied by the
     appellant on the victim girl and that she had gone with him on her
     own volition. Because of this, conviction of the appellant by the trial
     court under Section 366(A) IPC was set aside. It has come on record
     from the evidence tendered that the deceased was last seen alive
     together with the appellant on 22.08.2003. Dead body was allegedly
     recovered on 27.08.2003 after lodging of FIR on 26.08.2003. If this
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              Md. Bani Alam Mazid @ Dhan v. State of Assam


     be the position, no credence can be given to the theory of last seen
     together to come to any definitive conclusion that it was the appellant
     and the appellant alone who had killed the victim girl.
     5.1. Learned counsel submits that appellant had no reason or motive
          to cause the death of the victim girl. It has come on record that
          appellant and the victim girl were in a romantic relationship
          and that the victim girl had gone with the appellant on her own
          volition. Even the mother and brother-in-law of the appellant
          were reported to have told PW-1, father of the victim girl, that
          the two of them would get married. Therefore, there cannot be
          any conceivable reason or motive for the appellant to commit
          murder of the victim girl.
     5.2. He submits that in a case of circumstantial evidence, motive
          plays an important role. It is an important link to complete the
          chain of circumstances. In the absence of any motive, the
          chain of circumstances is not complete in which case guilt of
          the accused cannot be said to be proved beyond all reasonable
          doubt. In support of this contention, learned counsel for the
          appellant has referred to a decision of this Court in Nandu
          Singh Vs. State of M.P.1
     5.3. Mr. Laskar, learned counsel for the appellant, also submits that
          there was no recovery of the cash amount of Rs. 60,000.00
          allegedly taken away by the victim girl from her house as she
          went with the appellant. In fact, no investigation was carried
          out by the police in this direction and consequently, no recovery
          of cash was made.
     5.4. In so far the theory of leading to discovery is concerned, the
          same also does not inspire any confidence in as much as it
          was an extension of the extra-judicial confessions made by
          the appellant before some of the prosecution witnesses which
          were not accepted by the High Court since those were made in
          the police station and in front of the police while the appellant
          was under police custody. The extra-judicial confessions and
          the theory of leading to discovery are intrinsically connected;
          rather those are intertwined. If the extra-judicial confessions were


1   2022 SCC Online SC 1454
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          discarded by the court as an inadmissible piece of evidence,
          by the same logic, the theory of leading to discovery cannot
          be accepted as a valid piece of evidence.
     5.5. Learned counsel thus submits that there is grave doubt about
          the veracity of the prosecution case. Not to speak of a complete
          chain of circumstances, even the two instances of circumstantial
          evidence i.e. theory of last seen together and leading to
          discovery, cannot be said to have been proved against the
          appellant by the prosecution witnesses beyond all reasonable
          doubt. As a matter of fact, the prosecution case has to fall
          as one of the circumstances i.e. extra-judicial confession has
          been disbelieved by the High Court. Therefore, the chain is not
          complete. In such circumstances, conviction of the appellant
          becomes wholly untenable. Consequently, the appellant is
          entitled to the benefit of doubt and acquittal.
6.   Per contra, learned counsel for the State submits that both the trial
     court and the High Court have correctly convicted the appellant
     under Sections 302/201/34 IPC. The evidence on record clearly and
     correctly proves the commission of offence by the appellant.
     6.1. He submits that the evidence on record reveals that from the
          time the victim girl went with the appellant till her death, she
          was in the custody of the appellant. High Court had rightly
          observed that the prosecution cannot be asked to explain what
          had happened after the victim girl left with the appellant. It is for
          the appellant to explain the same, which the appellant failed to
          do. From all the circumstances put together, the only inference
          that can be drawn is that it is the appellant and none else who
          had committed the crime.
     6.2. Learned counsel for the State submits that although the extra-
          judicial confessions of the appellant made before PWs – 5, 6,
          7, 10 and 11 would be hit by the provisions of Sections 25 and
          26 of the Evidence Act, 1872 (‘the Evidence Act’ hereinafter),
          nonetheless, the statement of the appellant leading to discovery
          of the dead body of the victim girl would be an admissible piece
          of evidence under Section 27 of the Evidence Act.
     6.3. FIR was lodged on 26.08.2004 and the dead body was recovered
          the following day. Though there is a time gap between the time
          the two of them were last seen together and the recovery of
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            Md. Bani Alam Mazid @ Dhan v. State of Assam


           the dead body, the same would not be fatal to the prosecution
           case. Merely because there is a time gap between the time
           when the victim and the accused were last seen alive together
           and recovery of the dead body, that would not establish the
           innocence of the appellant. The accused has a duty and
           obligation to prove his innocence before the court and he cannot
           be allowed to remain silent once the prosecution discharges
           the initial burden.
     6.4. Learned counsel for the State finally submits that there is no
          error or infirmity in the conviction of the appellant and, hence,
          no interference is called for. Therefore, the appeal should be
          dismissed.
7.   Submissions made by learned counsel for the parties have received
     the due consideration of the court.
8.   Let us first examine the evidence tendered by the prosecution
     witnesses. Amzad Ali is PW-1. He is the father of the deceased. He
     identified the accused-appellant in court. In his examination-in-chief,
     he stated that about 2 years back his daughter Marjina was walking
     along the road on foot with another girl. At that time, appellant and
     the other accused Jahangir forcefully took his daughter away and
     put her in a Tata Sumo vehicle. The incident happened around 03:30
     PM. When he returned home, he came to know that the two accused
     persons had kidnapped his daughter. Though he searched for her,
     he was unsuccessful. 2/3 days after the incident, PW-1 met the
     other accused Jahangir. On being asked, Jahangir told PW-1 that
     his daughter was in Mukalmuwa and that he need not worry about
     her. At that time, Farid (husband of elder sister of the appellant) was
     present. Farid told PW-1 not to worry; he would bring the girl and
     arrange her marriage with the appellant. PW-1 further deposed that
     his daughter had taken away Rs. 60,000.00 in cash from his house.
     He stated that he lodged the first information before the police since
     his daughter was missing. Jahangir (accused No. 2) told PW-1 that
     they had killed his daughter and thrown her body away at Pandu.
     According to PW-1, when he alongwith the police went there, they
     found his daughter’s body lying on the railway track at Pandu. He
     saw injuries on her head. Delay in lodging the first information was
     attributed to remaining busy searching for his daughter.
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     8.1. On behalf of both the accused persons, PW-1 was cross-
          examined. In his cross-examination, he stated that the dead body
          was recovered on the day following lodging of first information.
          He saw the dead body of his daughter at Pandu around 5 PM
          in the evening. Junu Begum was the name of his daughter’s
          friend; they were classmates reading in the same school. He
          disclosed that the first information was written by Samsul (PW-6).
     8.2. PW-1 further stated that his daughter Marjina had a love
          affair with the appellant since last 5 years. At the time of the
          occurrence, the daughter was about 16 years of age. He came
          to know about the incident from Junu Begum. He denied the
          suggestion that the two accused persons did not kidnap his
          daughter and that they did not kill her, further denying the
          suggestion that Junu Begum did not tell him that the accused
          persons had kidnapped his daughter.
     8.3. While PW-1 admitted that the first information was written by
          Samsul (PW-6), he forgot whether PW-6 had read over the first
          information to him after writing the same. He further stated that
          he did not remember what was written in the first information.
9.   PW-2 is Junu Begum. In her examination-in-chief, she stated that
     deceased Marjina @ Kali was her friend. They studied together. She
     further stated that she knew the appellant and identified him in the
     court. At about 3’o clock in the afternoon two years back, she and
     Marjina were walking along the road to the house of her elder sister
     Nabira. At that time, the two accused persons came in a Tata Sumo
     vehicle and forcefully took Marjina away. PW-2 deposed that before
     the incident, Marjina had told her that she loved the appellant. She
     further deposed that she came to know 4 days after the occurrence
     that the two accused persons had killed Marjina and left her body
     alone. Later, she saw Marjina’s dead body in the house of PW-1.
     9.1. PW-2 was cross-examined on behalf of both the accused
          persons. In her cross-examination, PW-2 stated that appellant
          had come first and had got Marjina into the car. The other
          accused person Jahangir was sitting in the vehicle. There were
          a few passengers also in the vehicle. She stated in her cross-
          examination that she did not raise any hue and cry but she
          informed the husband of appellant’s elder sister Farid about
          the incident. PW-2 was categorical in stating that Marjina had
          left on her own accord.
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            Md. Bani Alam Mazid @ Dhan v. State of Assam


     9.2. PW-2 further stated in her cross-examination that when the Tata
          Sumo vehicle stopped, Marjina got into the said vehicle. Marjina
          did not carry any bag. She stated that she did not notice who
          were there in the vehicle.
10. PW-3 is Minuwara Begum. From her testimony, it is not discernible
    as to her relationship with the deceased or how she was presented
    as a witness by the prosecution. In her examination-in-chief, she
    stated that she knew the accused as well as the deceased. She
    identified the two accused persons in the court. She further stated
    that appellant had a love affair with the deceased. However, deceased
    had told her that if she did not go with him, she would be dead.
    Deceased had further told PW-3 that appellant wanted to take her
    to Andhra Pradesh for which she had to manage some money.
    Father of the deceased had collected an amount of Rs. 60,000.00
    by selling his land. On the date of occurrence, Marjina took away
    the money with her. PW-3 stated that she had seen the appellant
    going behind Marjina to the vehicle. Appellant’s mother Aklima and
    his brother-in-law Farid had informed family members of Marjina
    that they would arrange the marriage of the appellant with Marjina
    and, therefore, they should not search for her. Later on, she came
    to know that appellant had killed Marjina.
     10.1. In her cross-examination, PW-3 stated that she did not see
           any money in the hands of Marjina. According to her, appellant
           had pulled Marjina towards the vehicle though she did not hear
           Marjina raise any hue and cry. She however admitted that
           she did not inform anyone about the occurrence immediately.
           A meeting of villagers called ‘mel’ was held at night in the
           residence of Marjina. As PW-3 was invited, she had gone there.
           Influential persons of the village attended the said meeting.
11. Mother of the deceased Bulbuli Begum is PW-4. She identified the
    two accused persons in the court. She stated that about two years
    back, her daughter Marjina had gone missing from home. PW-2 had
    informed her that the appellant had taken Marjina away. Though they
    searched for their daughter, she could not be traced out. Appellant’s
    mother Aklima and brother-in-law Farid came to their house and told
    them that they should not search for their daughter and that they would
    arrange the marriage of their daughter Marjina with the appellant.
    She stated that accused Jahangir told her that appellant had killed
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     his daughter Marjina. Later on, Marjina’s dead body was recovered
     from Pandu. PW-4 stated that she saw injuries all over the dead
     body. Marjina was about 16 years of age at the time of occurrence.
     Marjina had taken away Rs. 60,000.00 in cash which PW-4 stated
     that she had kept it for purchasing some land. She acknowledged
     that before the occurrence, appellant and Marjina were in love.
     11.1. In her cross-examination, PW-4 stated that on the day of
           occurrence, Marjina left home after her meal to go to the
           residence of her elder sister Alima. A good number of village
           people were present at the time when mother and brother-in-
           law of the appellant gave the proposal of marriage. She denied
           the suggestion that PW-2 had not informed them about the
           occurrence and that Jahangir (accused No. 2) had not come
           and informed them of appellant killing Marjina. She further
           denied the suggestion that the two accused persons had not
           kidnapped his daughter and had not killed her.
12. PW-5 is Anwar Hussain. In his cross-examination, PW-5 stated
    that he knew the deceased Marjina Begum. He also knew the two
    accused persons whom he identified in court. In his evidence in
    chief, PW-5 stated that on 27.08.2003, police took the two accused
    persons to Hajo Police Station under arrest. According to PW-5,
    he alongwith some 40 persons from the village went to the police
    station. Appellant confessed before them that he had hit Marjina with
    a stone as a result of which she became senseless. After that, he
    had killed her by strangulating her with his vest. PW-5 stated that
    later on they found the dead body of Marjina near the railway track.
    He also stated that appellant had concealed the body in a ‘pitoni’
    which is a marshy place but PW-5 contradicted himself by saying
    that he saw the corpse in the police station. However, he added that
    appellant loved Marjina and took her away on the day of occurrence.
     12.1. In his cross-examination, PW-5 stated that in the police station,
           he and the other villagers saw the two accused persons being
           taken out from the lockup. Police first interrogated Jahangir and
           thereafter the appellant. He admitted that he had not seen the
           appellant taking away Marjina. PW-5 denied the suggestion
           that appellant did not tell them that he had killed Marjina.
           However, he added that police had not interrogated him.
[2025] 2 S.C.R.                                                       2019

            Md. Bani Alam Mazid @ Dhan v. State of Assam


13. PW-6 is Samsul Haque, the scribe. In his evidence-in-chief, he stated
    that he knew Amzad Ali (PW-1). As per version of PW-1, he wrote the
    ‘ejahar’ (first information), Ex.-1. He stated that he had read over the
    first information to PW-1 and obtained his thumb impression. Police
    took him alongwith the accused Jahangir and members of the public
    and recovered the dead body near the Pandu railway line. At that
    time, appellant was in jail. Police had seized a blood-stained vest
    which is Ex.-3. Accused Jahangir had confessed before the police and
    PW-6 that he had killed Marjina Begum. However, he contradicted
    himself by saying that appellant took the vest of Jahangir and killed
    Marjina by hanging her with the vest.
     13.1. In his cross-examination, he stated that he was taken to Pandu
           in a police vehicle where the dead body was recovered. He
           was there alongwith the officer-in-charge of the police station
           and 4/5 policemen. There was no magistrate. He had put his
           signature on the seizure list in the police station. He admitted
           in cross-examination that he did not tell the police that Jahangir
           had given his vest by taking it off.
14. PW-7 is Jahidur Rahman. In his examination in chief, he stated that
    on hearing the news of Marjina’s death, he went to the thana (police
    station). There he saw her dead body. He also saw the two accused
    persons in the thana. The two accused persons told before the police
    that they had killed Marjina by pressing her neck and thereafter had
    thrown her body near the railway line. He had heard that the two
    accused had kidnapped Marjina 2/3 days before the occurrence.
     14.1. In his cross-examination, PW-7 stated that he had not seen
           the incident himself. At the time of interrogation of the accused,
           he was present alongwith Anowar Hussain and Samsur Ali.
15. PW-8 Mainul Haque stated in his examination in chief that on
    27.08.2003, he had gone to the thana where he saw the dead body
    of Marjina. He also saw the two accused persons in the thana. When
    the police interrogated the two accused persons, they stated that
    they had taken the girl to Coochbehar from where they returned and
    had been going along the railway line. They had injured Marjina by
    hitting her with stones after which they strangulated her with a vest.
     15.1. However, in his cross-examination, he stated that he did not
           know with whom Marjina had eloped. He had gone to the
2020                                                      [2025] 2 S.C.R.

                        Supreme Court Reports


           police station on his own accord. In the police station, he saw
           the two accused persons in the room of the officer-in-charge.
           There were about 30 to 40 people present in the police station
           and all of them were in the room of the officer-in-charge.
16. PW-9 Dr. Amarjyoti Patowary had conducted the postmortem
    examination of the deceased. As per the postmortem notes, there
    were as many as 13 injuries on the face, neck, chest, waist, right
    forearm and on the left and right legs. He opined that death was
    due to asphyxia as a result of manual strangulation. All the injuries
    found on the body of the deceased were ante-mortem, caused by
    blunt weapon and homicidal in nature. He also opined that evidence
    of recent sexual intercourse was not detected. The deceased was
    not pregnant. He had carried out the postmortem examination on
    27.08.2003 and opined that approximate time of death was 24 to
    36 hours prior to such examination.
17. PW-10 is Abdul Hamid. In his deposition, he stated that he had heard
    that accused Bani Alam (appellant) had abducted Marjina Begum who
    did not return home. He heard after 4 days that dead body of Marjina
    Begum was found lying in a marshy land near the railway track at
    Jalukbari. He stated that he had gone to the thana the next day. In
    the thana, he found both the accused persons. Accused Bani Alam
    (appellant) told PW-10 and others in the thana that after abducting
    Marjina, he had pressed her neck. When he found that she was still
    alive, he hit her with stones causing her death. Thereafter, he had
    thrown her body in a marshy land near the railway track. According
    to him, accused Jahangir told them that both the accused persons
    had strangulated Marjina with the vest of Bani Alam (appellant).
     17.1. In his cross-examination, PW-10 stated that policemen were
           present when the two accused persons narrated the incident.
           He had gone to the thana in a police vehicle like many others on
           being called by the police. Police did not record his statement.
18. Jamser Ali, who is the brother of deceased Marjina, is PW-11. He
    stated that he was called to the thana by the police. He went to
    the thana alongwith other villagers. In the thana, he saw both the
    accused persons. Accused Bani Alam Mazid (appellant) told them
    that he had abducted Marjina and had squeezed her throat with a
    vest. He also hit her with stones. After that he had concealed the
    dead body in a ‘pitoni’ (marshy land) near Pandu.
[2025] 2 S.C.R.                                                      2021

              Md. Bani Alam Mazid @ Dhan v. State of Assam


     18.1. In his cross-examination, PW-11 stated that the two accused
           persons were handcuffed in the police station. Police were
           present when the two accused persons made their confessions.
19. The investigating officer deposed as PW-13. In his examination in
    chief, he stated that in the course of investigation, the two accused
    persons confessed before him that they had killed Marjina and had
    kept her dead body near the Pandu railway track under Jalukbari
    police station. They led the police accompanied by the circle officer
    to the place where the dead body was kept concealed. The circle
    officer had conducted inquest over the dead body. He stated that he
    had seized a half ganjee (vest) with blood stains, marked as Ex.-3.
     19.1. In his cross-examination, PW-13 stated that he had arrested
           the two accused persons on 26.08.2003. He did not make
           any prayer before the concerned Chief Judicial Magistrate to
           get the confessional statements of the accused recorded. He
           further admitted that the blood stained ganjee (vest) was not
           sent to the Forensic Science Laboratory (FSL) for examination.
20. PW-14 is the circle officer Kamal Kumar Baishya. He stated that on
    26.08.2003, he had received the requisition from the officer-in-charge
    of Hajo police station to hold inquest over the dead body of Marjina
    Begum. He had carried out the inquest in the presence of witnesses.
21. Though the appellant was confronted with the incriminating evidence
    against him for recording of his examination under Section 313
    Cr.P.C., he stated in response that though he knew the deceased,
    he denied all the allegations made against him vis-à-vis, abduction
    and murder of Marjina Begum.
22. Before we appreciate the evidence, it will be apposite to briefly advert
    to the law relating to circumstantial evidence as this is a case where
    conviction is based on circumstantial evidence. In a recent decision
    of this Court in Ramu Appa Mahapatar Vs. State of Maharashtra2,
    this Court dealt with the limitations of an extra-judicial confession
    which is one of the instances of circumstantial evidence. In that
    context, this Court following the consistent line of judicial precedents
    held that circumstantial evidence is not direct to the point in issue
    but consists of evidence of various other facts which are so closely


2   2025 INSC 147
2022                                                        [2025] 2 S.C.R.

                         Supreme Court Reports


     associated with the fact in issue that taken together, they form a chain
     of circumstances from which the existence of the principle fact can
     be legally inferred or presumed. The chain must be complete and
     each fact forming part of the chain must be proved. Where a case
     rests on circumstantial evidence, 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. This Court held as under:
          16. …….As we know, circumstantial evidence is not
          direct to the point in issue but consists of evidence of
          various other facts which are so closely associated with
          the fact in issue that taken together, they form a chain of
          circumstances from which the existence of the principal
          fact can be legally inferred or presumed. The chain must
          be complete and each fact forming part of the chain must
          be proved. It has been consistently laid down by this
          Court that where a case rests squarely on circumstantial
          evidence, 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. The circumstances would not
          only have to be proved beyond reasonable doubt, those
          would also have to be shown to be closely connected
          with the principal fact sought to be inferred from those
          circumstances. All these circumstances should be complete
          and there should be no gap left in the chain of evidence.
          The proved circumstances must be consistent only with
          the hypothesis of the guilt of the accused and totally
          inconsistent with his innocence. The circumstances taken
          cumulatively must be 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. While
          there is no doubt that conviction can be based solely on
          circumstantial evidence but great care must be taken in
          evaluating circumstantial evidence. If the evidence relied
          upon is reasonably capable of two inferences, the one in
          favour of the accused must be accepted.
23. In so far the present case is concerned, prosecution relied on three
    circumstances to prove the guilt of the appellant. These were:
[2025] 2 S.C.R.                                                       2023

            Md. Bani Alam Mazid @ Dhan v. State of Assam


     appellant and the victim were last seen together; extra-judicial
     confession made by the appellant before PW Nos. 5, 6, 7, 8, 10 and
     11; and the fact of recovery of the dead body following the confessional
     statements of the appellant made to PW Nos. 5, 6, 7, 8, 10 and 11.
     High Court discarded the circumstance of extra-judicial confessions
     made by the appellant before PW Nos. 5, 6, 7, 8, 10 and 11 on the
     ground that those confessions were made in the presence of the
     police and thus would be hit by the provisions of Section 25 of the
     Evidence Act. Thus, High Court had disbelieved one of the three
     circumstances put forth by the prosecution as part of the chain of
     circumstantial evidence to prove the guilt of the appellant. If this be
     the position, then it could not be said that the chain of circumstantial
     evidence was complete and that no other inference except the guilt
     of the accused was possible therefrom. As the chain got broken,
     appellant was entitled to the benefit of doubt as it could not be
     said that the circumstances put together established the guilt of the
     accused (appellant) beyond all reasonable doubt.
24. However, the High Court convicted the appellant on the strength
    of the remaining two pieces of circumstantial evidence holding that
    those two complete the chain wherefrom no other inference except
    the guilt of the appellant was possible.
25. In our view, the High Court clearly fell in error in coming to such a
    conclusion. When one of the three circumstances was disbelieved
    and discarded by the High Court, then the chain of circumstantial
    evidence could not have been held to be complete and proved and
    on that basis to hold the accused guilty of the offence. Each and
    every circumstance forming the chain of circumstantial evidence
    has to be proved.
26. Since the High Court convicted the appellant on the strength of the
    aforesaid two circumstances, let us deal with the same. Firstly, let
    us consider the circumstance of last seen together. PW-2 is the only
    witness who stated in her evidence that appellant had forcefully taken
    Marjina away in a Tata Sumo when both of them were walking along
    the road. However, she stated that Marjina had told her that she loved
    the appellant. In her cross-examination, she categorically stated that
    Marjina had gone with the appellant on her own accord and, therefore,
    she did not raise any hue and cry. In fact, she stated that Marjina
    had got into the Tata Sumo vehicle when the same stopped near
2024                                                       [2025] 2 S.C.R.

                         Supreme Court Reports


     them and that she did not carry any bag. PW-3 (Minuwara Begum)
     stated that she had seen the appellant going behind Marjina to the
     vehicle though she did not see any money in the hands of Marjina.
     She did not hear Marjina raising any hue and cry. However, from
     her evidence, it is not discernible as to her relationship with the
     deceased or the appellant. It has also not come on record as to how
     she saw Marjina going away with the appellant; as to whether she
     was commuting along the road at that point of time; and whether
     she had seen Marjina in the company of PW-2.
27. It has further come on record that mother and brother-in-law of the
    appellant had come to the residence of PW-1 and assured him that
    his daughter was safe with the appellant and that they would arrange
    for their marriage. For four days, PW-1 did not lodge any complaint
    or first information though his daughter had gone missing. It was
    only on 26.08.2003 afternoon that the FIR was lodged and thereafter
    the dead body was recovered on the following day.
28. None of the witnesses stated that they had seen Marjina with cash
    or carrying any bag. Police also did not investigate this angle and
    there was no recovery of cash.
29. First and foremost, there are glaring discrepancies in the evidence
    of PWs 2 and 3 who allegedly had seen the deceased last alive
    in the company of the appellant on 22.08.2003. Dead body was
    recovered 5 days thereafter on 27.08.2003 that too after lodging of
    FIR on 26.08.2003.
30. In State of Goa Vs. Sanjay Thakran3, this Court held that the
    circumstance of last seen together would normally be taken into
    consideration for finding the accused guilty of the offence charged with
    when it is established by the prosecution that the time gap between
    the point of time when the accused and the deceased were found
    together alive and when the deceased was found dead is so small
    that possibility of any other person being with the deceased could
    completely be ruled out. However, in all cases, it cannot be said that
    the evidence of last seen together has to be rejected merely because
    there is a time gap between the accused and the deceased last seen
    together and the crime coming to light is after a considerable long


3   (2007) 3 SCC 755
[2025] 2 S.C.R.                                                          2025

            Md. Bani Alam Mazid @ Dhan v. State of Assam


     duration. If the prosecution is able to lead evidence that likelihood
     of any person other than the accused being the author of the crime
     becomes impossible then the evidence of the circumstance of last
     seen together although there is a long duration of time in between
     can be considered as one of the circumstances in the chain of
     circumstances to prove the guilt against such accused persons. This
     Court held as follows:
           34. From the principle laid down by this Court, the
           circumstance of last seen together would normally be
           taken into consideration for finding the accused guilty of
           the offence charged with when it is established by the
           prosecution that the time gap between the point of time
           when the accused and the deceased were found together
           alive and when the deceased was found dead is so small
           that possibility of any other person being with the deceased
           could completely be ruled out. The time gap between the
           accused persons seen in the company of the deceased
           and the detection of the crime would be a material
           consideration for appreciation of the evidence and placing
           reliance on it as a circumstance against the accused. But,
           in all cases, it cannot be said that the evidence of last
           seen together is to be rejected merely because the time
           gap between the accused persons and the deceased last
           seen together and the crime coming to light is after (sic
           of) a considerable long duration. There can be no fixed
           or straitjacket formula for the duration of time gap in this
           regard and it would depend upon the evidence led by the
           prosecution to remove the possibility of any other person
           meeting the deceased in the intervening period, that is to
           say, if the prosecution is able to lead such an evidence
           that likelihood of any person other than the accused, being
           the author of the crime, becomes impossible, then the
           evidence of circumstance of last seen together, although
           there is long duration of time, can be considered as one
           of the circumstances in the chain of circumstances to
           prove the guilt against such accused persons. Hence, if
           the prosecution proves that in the light of the facts and
           circumstances of the case, there was no possibility of any
           other person meeting or approaching the deceased at the
           place of incident or before the commission of the crime,
2026                                                        [2025] 2 S.C.R.

                          Supreme Court Reports


            in the intervening period, the proof of last seen together
            would be relevant evidence. For instance, if it can be
            demonstrated by showing that the accused persons were
            in exclusive possession of the place where the incident
            occurred or where they were last seen together with the
            deceased, and there was no possibility of any intrusion to
            that place by any third party, then a relatively wider time
            gap would not affect the prosecution case.
31. This Court in Kanhaiya Lal Vs. State of Rajasthan4 held that the
    circumstance of last seen together does not by itself lead to the
    inference that it was the accused who had committed the crime.
    There must be something more to establish the nexus between the
    accused and the crime. Mere non-explanation on the part of the
    accused by itself cannot lead to proof of guilt against the accused.
    This Court held thus:
            15. The theory of last seen—the appellant having gone
            with the deceased in the manner noticed hereinbefore,
            is the singular piece of circumstantial evidence available
            against him. The conviction of the appellant cannot be
            maintained merely on suspicion, however strong it may be,
            or on his conduct. These facts assume further importance
            on account of absence of proof of motive particularly when
            it is proved that there was cordial relationship between
            the accused and the deceased for a long time. The fact
            situation bears great similarity to that in Madho Singh v.
            State of Rajasthan5.
32. Anjan Kumar Sarma Vs. State of Assam6 is a case where this Court
    held that in a case where the other links have been satisfactorily
    made out and the circumstances point to the guilt of the accused,
    the circumstance of last seen together and absence of explanation
    would provide an additional link which completes the chain. In the
    absence of proof of other circumstances, the only circumstance of
    last seen together and absence of satisfactory explanation cannot
    be made the basis of conviction.


4   (2014) 4 SCC 715
5   (2010) 15 SCC 588
6   (2017) 14 SCC 359
[2025] 2 S.C.R.                                                           2027

            Md. Bani Alam Mazid @ Dhan v. State of Assam


33. Applying the legal principles culled out from the above decisions to the
    evidence of PW-2 and PW-3, it is clear that there was considerable
    time gap between the time the appellant and the deceased were
    last seen together alive and recovery of the dead body. Therefore, it
    cannot be said with any degree of certainty that it was the appellant
    and the appellant alone who had committed the offence.
34. This brings us to next circumstance of leading to discovery.
35. Section 27 of the Evidence Act deals with such information received
    from the accused which may be proved. Section 27 of the Evidence
    Act is couched in the language of a proviso and immediately follows
    Section 26. It is, therefore, necessary that the two sections are
    discussed conjointly. While Section 26 deals with confession made
    by an accused while in custody of police, Section 27 as noted above
    deals with such information received from the accused which may
    be proved. Section 26 of the Evidence Act, without the Explanation
    which is not relevant, is as follows:
            26. Confession by accused while in custody of police
            not to be proved against him. – No confession made
            by any person whilst he is in the custody of a police
            officer, unless it be made in the immediate presence of
            a Magistrate, shall be proved as against such person.
     35.1. What Section 26 of the Evidence Act says is that no confession
           made by any person while he is in the custody of a police
           officer shall be proved as against such person unless it is
           made in the immediate presence of the Magistrate. This is an
           exception to the absolute bar of Section 25 which declares
           that no confession made to a police officer shall be proved as
           against a person accused of any offence. Section 27 on the
           other hand is a qualification of Section 26 and reads as under:
                    27. How much of information received from accused
                    may be proved. – Provided that, when any fact
                    is deposed to as discovered in consequence of
                    information received from a person accused of
                    any offence, in the custody of a police officer, so
                    much of such information, whether it amounts to a
                    confession or not, as relates distinctly to the fact
                    thereby discovered, may be proved.
2028                                                        [2025] 2 S.C.R.

                          Supreme Court Reports


     35.2. Section 27 provides that when any fact is deposed to as
           discovered in consequence of information received from a
           person accused of any offence, in the custody of a police
           officer, so much of such information, whether it amounts to
           a confession or not, as relates distinctly to the fact thereby
           discovered, may be proved.
36. The contours of Section 27 was examined by the Privy Council in
    the case of Pulukuri Kottaya Vs. King-Emperor7, whereafter it was
    observed that the discovery of fact contemplated under Section 27 of
    the Evidence Act arises by reason of the fact that information given
    by the accused exhibited his knowledge or mental awareness as to
    its existence at a particular place. Relevant portion of the aforesaid
    decision is extracted hereunder:
             S. 27, which is not artistically worded, provides an
             exception to the prohibition imposed by the preceding
             section and enables certain statements made by a person
             in police custody to be proved. The condition necessary
             to bring the section into operation is that the discovery
             of a fact in consequence of information received from a
             person accused of any offence in the custody of a Police
             officer must be deposed to, and thereupon so much of
             the information as relates distinctly to the fact thereby
             discovered may be proved. The section seems to be
             based on the view that if a fact is actually discovered
             in consequence of information given, some guarantee
             is afforded thereby that the information was true, and
             accordingly can be safely allowed to be given in evidence;
             but clearly the extent of the information admissible must
             depend on the exact nature of the fact discovered to
             which such information is required to relate. Normally the
             section is brought into operation when a person in police
             custody produces from some place of concealment some
             object, such as a dead body, a weapon, or ornaments,
             said to be connected with the crime of which the informant
             is accused.


7   AIR 1947 PC 67
[2025] 2 S.C.R.                                                           2029

              Md. Bani Alam Mazid @ Dhan v. State of Assam


37. This Court in Vasanta Sampat Dupare Vs. State of Maharashtra8
    referred to the observations made by the Privy Council in Pulukuri
    Kottaya (supra) and culled out the following principles:
            23. While accepting or rejecting the factors of discovery,
            certain principles are to be kept in mind. The Privy Council
            in Pulukuri Kotayya v. King Emperor has held thus:
                   … it is fallacious to treat the ‘fact discovered’
                   within the section as equivalent to the object
                   produced; the fact discovered embraces the
                   place from which the object is produced and
                   the knowledge of the accused as to this, and
                   the information given must relate distinctly to
                   this fact. Information as to past user, or the past
                   history, of the object produced is not related to its
                   discovery in the setting in which it is discovered.
                   Information supplied by a person in custody that
                   ‘I will produce a knife concealed in the roof of
                   my house’ does not lead to the discovery of a
                   knife; knives were discovered many years ago.
                   It leads to the discovery of the fact that a knife
                   is concealed in the house of the informant to his
                   knowledge, and if the knife is proved to have
                   been used in the commission of the offence,
                   the fact discovered is very relevant. But if to
                   the statement the words be added ‘with which I
                   stabbed A’, these words are inadmissible since
                   they do not relate to the discovery of the knife
                   in the house of the informant.
38. In the case of Asar Mohammad Vs. State of Uttar Pradesh9, this Court
    referred to the word ‘fact’ appearing in Section 27 of the Evidence
    Act and held that such a fact need not be self-probatory. The word
    ‘fact’ contemplated in Section 27 of the Evidence Act is not limited to
    ‘actual physical material object.’ Discovery of fact arises by reason
    that the information given by the accused exhibited the knowledge
    or the mental awareness of the informant as to its existence at a


8   (2015) 1 SCC 253
9   (2019) 12 SCC 253
2030                                                      [2025] 2 S.C.R.

                        Supreme Court Reports


     particular place which includes discovery of the object, the place
     from which it is discovered and the knowledge of the accused as
     to its existence.
39. Applying the law relating to Section 27 of the Evidence Act as
    can be culled out from the aforesaid decisions, we find that the
    circumstance of leading to discovery is intrinsically connected with
    the circumstance of extra-judicial confessions made by the appellant
    and the other co-accused before PW-5, PW-6, PW-7, PW-8, PW-10
    and PW-11. We have already noted that the High Court had rejected
    the circumstance of extra-judicial confessions as being in-admissible
    evidence. It was in the course of such extra-judicial confessions that
    the said prosecution witnesses mentioned about the information
    given by the accused persons leading to discovery of the dead body.
    According to PW-5, he along with some forty villagers had gone
    to the police station where after the appellant allegedly confessed
    his guilt and told PW-5 and others that he had concealed the dead
    body in a marshy place. But in his substantive evidence, PW-5
    contradicted himself by saying that he saw the corpse in the police
    station. PW-6, the scribe, stated in his evidence that police took him
    along with the other accused Jahangir and members of the public and
    recovered the dead body near the railway track at Pandu. He stated
    that at that time appellant was in jail. So according to the version of
    PW-6, appellant was not taken by the police to the place from where
    the dead body was recovered. Though he stated that co-accused
    Jahangir had confessed before him and the police that it was he who
    had killed Marjina Begum, he contradicted himself by saying that it
    was the appellant who had taken the vest from Jahangir and had
    killed Marjina by hanging her with the vest. In his cross-examination
    PW-6 admitted that there was no magistrate at the time when the
    dead body was recovered. There is an improvement in the version
    of PW-6 in the sense that PW-6 admitted in his cross-examination
    that he had not told the police that Jahangir has given his vest to
    the appellant.
40. The inconsistencies of the prosecution witnesses on the circumstance
    of leading to discovery continued. PW-7 in his evidence in chief
    stated that he saw the dead body of Marjina in the police station.
    Therefore, he was not a witness to the fact of recovery of the
    dead body. According to him, the two accused persons had told
    him before the police that they had killed Marjina by pressing her
[2025] 2 S.C.R.                                                      2031

            Md. Bani Alam Mazid @ Dhan v. State of Assam


     neck and thereafter had thrown her body near the railway line. This
     statement is clearly at variance with what the scribe PW-6 had stated.
     Similarly, PW-8 stated that when he had gone to the police station on
     27.08.2003, he saw the dead body of Marjina there. The two accused
     persons told the police before them that they had taken Marjina to
     Coochbehar from where they returned. As they were going along
     the railway line, they injured Marjina by hitting her with stones after
     which they strangulated her with the vest. This statement of PW-8
     again is wholly inconsistent with the versions of PW-6 and PW-7. In
     his cross-examination PW-8 stated that he saw about thirty to forty
     people present in the police station when the accused persons were
     making their statement.
41. Such inconsistencies were further magnified when PW-10 deposed
    that appellant told him and others in the police station that after
    abducting Marjina he had pressed her neck. When he found that she
    was still alive he hit her with stones causing her death. Thereafter he
    had thrown her dead body in a marshy land near the railway track.
    According to him, accused Jahangir had told that both the accused
    persons had strangulated Marjina with the vest of the appellant.
    However, in his cross-examination, he mentioned that police did
    not record his statement under Section 161 of the CrPC though he
    had gone to the police station in a police vehicle on being called by
    the police like the other villagers. So the evidence of PW-10 is of
    no consequence. Similarly, PW-11, brother of the deceased, stated
    that he was in the police station along with the other villagers when
    appellant told them that he had abducted Marjina, whereafter he had
    squeezed her throat with the vest. He also hit her with stones. After
    that, he had concealed the dead body in a marshy land near Pandu.
42. From the above, it is clear that except PW-6 none of the aforesaid
    witnesses have stated that they were present at the place from where
    the dead body was recovered by the police on being shown by the
    accused persons. They had only seen the dead body in the police
    station. But even the version of PW-6 is difficult to accept inasmuch
    as according to him it was the other accused Jahangir who led him
    and members of the public along with the police to a place near the
    Pandu railway track from where the dead body was recovered, the
    appellant being in jail at that time. Such statements of PW-6 have
    to be taken with a pinch of salt as he tied himself up in knots by
    stating that it was Jahangir who had confessed to killing Marjina.
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                        Supreme Court Reports


43. PW-13, the investigating officer, however, stated that the two accused
    persons after confessing before him that they had killed Marjina led
    the police to the place where the dead body was kept concealed
    near the Pandu railway track.
44. After analysing the evidence on record, it is difficult to accept the
    prosecution case that the dead body of Marjina was recovered from
    the concealed place near the Pandu railway track at the instance
    of the appellant. Therefore, Section 27 of the Evidence Act cannot
    come to the aid of the prosecution.
45. PW-13, the investigating officer, stated that though he had seized
    the vest with blood stains, he did not send the same to the FSL for
    examination. Therefore, there is no evidence on record to show that
    firstly the blood stains on the vest are human blood and secondly those
    matches the blood of the deceased. In his cross-examination, PW-13
    also stated that he did not make any prayer before the concerned
    Chief Judicial Magistrate to get the confessional statements of the
    accused recorded.
46. Viewed in the above context, the circumstance of leading to discovery
    cannot be said to have been proved beyond all reasonable doubt
    as against the appellant. If that be the position, not only the chain
    of circumstantial evidence is not complete, all the circumstances put
    forth by the prosecution to prove the guilt of the appellant cannot
    be accepted as having been proved as valid pieces of evidence.
    Therefore, the appellant deserves to be given the benefit of doubt
    and is entitled to an acquittal on this count.
47. There is one glaring lacuna in the prosecution case which we
    would like to highlight. It has come on record from the evidence of
    PW-1 (father of the deceased) and PW-4 (mother of the deceased)
    that appellant’s mother Aklima and brother-in-law Farid had told
    them that they need not worry about their daughter and that they
    would arrange the marriage of their daughter with the appellant.
    In fact according to PW-1, Farid had told him that he would bring
    the girl and arrange her marriage with the appellant but these two
    persons were not examined by the police and presented as witness
    before the court. If indeed the version of PW-1 and PW-4 are to be
    believed, both the mother and brother-in-law of the appellant knew
    the whereabouts of the deceased girl. Therefore, they were material
    witnesses. Non-examination of such material witness has definitely
    dented the prosecution case.
[2025] 2 S.C.R.                                                      2033

               Md. Bani Alam Mazid @ Dhan v. State of Assam


48. Before parting with the record, we are tempted to deal with one more
    aspect since it was argued by learned counsel for the appellant. It
    has come on record that the appellant and the deceased were in
    love. Mother of the appellant along with his brother-in-law had told
    PW-1, father of the deceased, that they would arrange the marriage
    of the two. Therefore there could not have been any motive for the
    appellant to cause the death of Marjina. Postmortem report has also
    ruled out recent sexual activity of the deceased. This coupled with
    the fact that there is no recovery of cash allegedly taken away by
    the deceased from her residence makes the prosecution narrative
    all the more suspect.
49. In Anwar Ali Vs. State of Himachal Pradesh10, this Court after referring
    to the previous decisions observed that in a case where direct
    evidence of eye witness is available, motive loses its importance. But
    absence of motive in a case depending on circumstantial evidence
    is a factor that weighs in favour of the accused.
50. Relying on the decision in Anwar Ali (supra), this Court in Shivaji
    Chintappa Patil Vs. State of Maharashtra11 observed that in a case of
    circumstantial evidence, motive plays an important link to complete
    the chain of circumstances.
51. This Court in Nandu Singh (supra) summed up the legal position that
    in a case based on circumstantial evidence, motive assumes great
    significance. It is not as if motive alone becomes the crucial link in
    the case to be established by the prosecution and that in its absence,
    the case of the prosecution has to be discarded. But, at the same
    time, complete absence of motive assumes a different complexion
    and such absence definitely weighs in favour of the accused.
52. Thus, having regard to the discussions made above, we are of the
    view that none of the circumstances put forth by the prosecution to
    prove the guilt of the appellant can be said to have been proved, not
    to speak of proving the complete chain of circumstances, to dispel
    any hypothesis of innocence of the appellant. When the prosecution
    failed to prove each of the circumstances against the appellant, the
    courts below were not justified in convicting the appellant.



10   (2020) 10 SCC 166
11   (2021) 5 SCC 626
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53. Accordingly, the criminal appeal is allowed. Consequently, the
    judgment and order of the High Court dated 11.08.2010 as well as
    that of the Sessions Court dated 20.03.2007 are hereby set aside.
    Appellant is acquitted of the charges levelled against him and is set
    at liberty forthwith unless his custody is required in connection with
    any other crime.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Raghav Bhatia, Hony. Associate Editor
                                 (Verified by: Shibani Ghosh)