(From previous issue) :
20. Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the court in considering the conviction of an accused resting on circumstantial evidence. Circumstantial evidence means a combination of facts creating a net without there, being any tear through which the accused can escape. In the case of Jaharlal Das vs State of Orissa reported in AIR 1991 (SC) page 1388 Supreme Court of India has observed that; “The circumstantial evidence in order to sustain conviction must satisfy three conditions; (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively should form a chain to complete that there is no escape from the conclusion that crime was committed by the accused and no one else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused”. When the evidence of PWs 1 and’ 2 are found to be unreliable in view of the evidence of PWs 3, 5, 7, and 8 the order of conviction basing on circumstances from the evidence of PWs 1 and 2 is unsafe. The chain of circumstances is not complete so as it lead to the conclusion that the appellants and no other could have been the assailant. We do not find anything in the evidence that at or about the time of murder, no third person, excepting the appellants and the deceased were present at the place of occurrence. It can be a case of “may be true”. But there is distance between “may be true” and “must be true”. The same divides conjecture from sure conclusion.
21. In view of the evidence discussed about it is difficult for us to draw conclusion that within all human probability it was the accused appellants no one else, who had murdered the victim Mukti.
22. We are conscious that a grave and heinous crime has been committed but there is no satisfactory proof of the guilt. We have no option but to give the benefit of doubt to the accused and we are constrained to do so in this case.
23. Accordingly we find merit in these three appeals.
24. Accordingly, all the appeals being Criminal Appeal No. 11 of 2010,12 of 2010 and 13 of 2010 are allowed. The impugned judgment and order of the High Court Division in Criminal Appeal No. 3215 of 2004, Criminal Appeal No.3346 of 2004 and Criminal Appeal No. 2910 of 2004 are set aside. Consequently, the judgment and order of Metropolitan Additional Sessions Judge, 51h Court, Dhaka dated 19-7-2004 passed in Metropolitan Sessions Case No. 1215 of 2002 arising out of GR Case No. 342 of 2000 corresponding to Badda PS Case No. 19 dated 20-3-2000 is set-aside. The accused appellants are acquitted from the charge under sections 302/34 of the Penal Code. The respondent is directed to set them at liberty at once if they are not wanted in any other case.
(Concluded)
20. Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the court in considering the conviction of an accused resting on circumstantial evidence. Circumstantial evidence means a combination of facts creating a net without there, being any tear through which the accused can escape. In the case of Jaharlal Das vs State of Orissa reported in AIR 1991 (SC) page 1388 Supreme Court of India has observed that; “The circumstantial evidence in order to sustain conviction must satisfy three conditions; (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively should form a chain to complete that there is no escape from the conclusion that crime was committed by the accused and no one else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused”. When the evidence of PWs 1 and’ 2 are found to be unreliable in view of the evidence of PWs 3, 5, 7, and 8 the order of conviction basing on circumstances from the evidence of PWs 1 and 2 is unsafe. The chain of circumstances is not complete so as it lead to the conclusion that the appellants and no other could have been the assailant. We do not find anything in the evidence that at or about the time of murder, no third person, excepting the appellants and the deceased were present at the place of occurrence. It can be a case of “may be true”. But there is distance between “may be true” and “must be true”. The same divides conjecture from sure conclusion.
21. In view of the evidence discussed about it is difficult for us to draw conclusion that within all human probability it was the accused appellants no one else, who had murdered the victim Mukti.
22. We are conscious that a grave and heinous crime has been committed but there is no satisfactory proof of the guilt. We have no option but to give the benefit of doubt to the accused and we are constrained to do so in this case.
23. Accordingly we find merit in these three appeals.
24. Accordingly, all the appeals being Criminal Appeal No. 11 of 2010,12 of 2010 and 13 of 2010 are allowed. The impugned judgment and order of the High Court Division in Criminal Appeal No. 3215 of 2004, Criminal Appeal No.3346 of 2004 and Criminal Appeal No. 2910 of 2004 are set aside. Consequently, the judgment and order of Metropolitan Additional Sessions Judge, 51h Court, Dhaka dated 19-7-2004 passed in Metropolitan Sessions Case No. 1215 of 2002 arising out of GR Case No. 342 of 2000 corresponding to Badda PS Case No. 19 dated 20-3-2000 is set-aside. The accused appellants are acquitted from the charge under sections 302/34 of the Penal Code. The respondent is directed to set them at liberty at once if they are not wanted in any other case.
(Concluded)
