Page No.# 1/22 GAHC010048512021 2026:GAU- AS:10350-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Death Sentence Ref./2/2021 THE STATE OF ASSAM REP. BY THE P.P., ASSAM. VERSUS BIKRAM HARIJAN @ CHANDAN HARIZON S/O. SRI SURENDER HARIZON, R/O. DARIA BASTI, P.S. HOJAI, DIST. HOJAI, ASSAM. Advocate for the Petitioner : PP, ASSAM, Advocate for the Respondent : MR D K BHATTACHARYYA, MR A K DAS, AMICUS CURIAE,MR. B CHAKRABORTY,MRS P HAZARIKA Linked Case : Crl.A./80/2021 BIKRAM HARIJAN @ CHANDAN HARZION S/O- SRI SURENDER HARIZON R/O- DARIA BASTI P.S. AND DIST.- HOJAI ASSAM. VERSUS Page No.# 2/22 THE STATE OF ASSAM AND ANR. REP. BY THE PUBLIC PROSECUTOR ASSAM. 2:PRAKASH SHARMA S/O- SHRI SARILAL SHARMA R/O- DARIA BASTI P.S. AND DIST.- HOJAI ASSAM. ------------ Advocate for : MR. B CHAKRABORTY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HON’BLE THE CHIEF JUSTICE ASHUTOSH KUMAR HON’BLE MR JUSTICE ARUN DEV CHOUDHURY For the Appellant: Mr D.K. Bhattacharyya, Advocate in Criminal Appeal No. 80/2021. Ms B. Bhuyan, Additional Public Prosecutor, Assam in Death Sentence Reference No. 2/2021 For the Respondents: Ms B Bhuyan, Additional Public Prosecutor, Assam for respondent No. 1/State of Assam in Criminal Appeal No. 80/2021. Mr S.S. Barooah, Legal Aid Counsel for the informant/ respondent No. 2 in Criminal Appeal No. 80/2021. Mr D.K. Bhattacharyya, Advocate in Death Sentence Reference No. 2/2021. Mr A.K. Das, Amicus Curiae in Death Sentence Reference No. 2/2021. Date on which judgment is reserved: 14.07.2026 Date of pronouncement of judgment: 29.07.2026 Page No.# 3/22 Whether the pronouncement is of the operative part of the judgment : NA Whether the full judgment has been Pronounced : Yes JUDGMENT & ORDER (CAV) A.D.Choudhury, J 1. The Death Reference No. 02/2021 and Crl Appeal No.80/2021 arise out of Judgment dated 08.02.2021 and Sentence dated 10.02.2021 passed by the learned Additional District & Sessions Judge (FTC), Hojai in Spl (P) Case No. 07(P)/2020 corresponding to Hojai PS Case No. 164/2020, whereby the accused appellant, namely, Bikram Harijan @ Chandan Harizon was convicted under Section 302/376(A) IPC and Section 6 of POCSO (Amendment) Act, 2019 and sentenced to death. 2. Since both the Reference and Appeal arise from the same judgment, they are taken up together for disposal by this common judgment and order. 3. We have heard Mr D. K. Bhattacharyya, learned Advocate in Criminal Appeal No. 80/2021. We have also heard Ms B. Bhuyan, learned Additional Public Prosecutor, Assam for the respondent No. 1/State of Assam in Criminal Appeal No. 80/2021, Mr S. S. Barooah, learned Legal Aid Counsel for the informant/respondent No. 2 in Criminal Appeal No. 80/2021 and Mr. A. K. Das, learned Amicus Curiae in Death Sentence Reference No. 2/2021. 4. The prosecution case in brief is that upon getting information from one Isu Sinha, a police personnel, that on 26.02.2020, the victim was missing and her body was found in the morning on 27.02.2020 in the jungle of Pub Nandapur village. The Officer-in- charge of Hojai Police Station made a G.D. entry vide No. 860 dated 27.02.2020. The matter was informed to the higher authorities as well as the Executive Magistrate, and a Page No.# 4/22 G.D. entry was made again in Hojai Police Station and investigation was started. The police reached the place of occurrence and the body of the victim was found lying with certain injuries at the place of occurrence; inquest was done over the dead body and investigation was proceeded. The Police searched the place of occurrence. At about 10 feet away from the place of occurrence, a panty was found which was identified to be of the victim by her father (PW-10). The panty was seized in the presence of witnesses, and statements of the seizure witnesses were recorded. In the meantime, a large number of the public gathered at the place of occurrence, and they made hue and cry that the accused committed the crime. It was stated by a number of witnesses that they saw the victim with the accused on 26.02.2020 while the victim was taken by the accused towards the jungle while she was playing. Among the aforesaid witnesses, the Investigating Officer recorded the statements of PW-13, PW-1, and PW-2. Thereafter, the residence of the accused was searched around 08.40 PM on 27.02.2020, but he was not found, and the door of his house was locked from the inside. In the meantime, the accused was handed over to Hojai Police by his brother, Binod Horizon (not examined as witness), and one VDP President, Ramayan Gowala (PW-14). The Investigating Officer returned to the Police Station and saw the accused in police custody; he was interrogated in the presence of the VDP President and one News Reporter, and the accused confessed that he committed rape upon her and thereafter he killed the victim. Subsequently, F.I.R. was lodged by the father of the victim, which was registered as Hojai Police Station Case No.164/2020 under Section 302/376(A) IPC read with Section 4 of the POCSO Act, 2012. During the investigation, statements of the witnesses were recorded; the statement of Page No.# 5/22 the accused under Section 164 Cr.P.C. was also recorded. Having found overwhelming incriminating materials against the accused, the Investigating Officer filed the charge-sheet after completion of investigation under Section 302/376(A) IPC, read with Section 4 of the POCSO Act. 5. Upon committal, the charges under Section 302/376(A) IPC and under Section 6 of the POCSO (Amendment) Act, 2019 were framed against the accused person, to which he pleaded not guilty and claimed to be tried, and accordingly, the trial proceeded. 6. To establish the charges, the prosecution examined 20 (twenty) witnesses. The defence adduced no evidence. The statements of the accused under Section 313 Cr.P.C. were recorded, to which the accused person denied any involvement in the crime. 7. The learned trial court, upon appreciation of the evidence, convicted the accused person, and the impugned sentence of death was passed. 8. Hence, the present appeal and reference. 9. Mr. D. K. Bhattacharya, Learned Counsel for the Appellant, submits that the conviction rests entirely upon circumstantial evidence, and the prosecution has failed to establish a complete chain of circumstances consistent only with the hypothesis of the Appellant's guilt. 10. Placing reliance upon Sarad Bridhi Chand Sarda –Vs- State of Maharashtra reported in 1984 4 SCC 116 and Hanumant Vs State of Madhya Pradesh reported in 1952- 2SCC 71, it is contended that every incriminating circumstance must be firmly established, and all such circumstances must form an unbroken chain excluding every hypothesis consistent with innocence. It is submitted that the present case falls far short of that standard. 11. Learned counsel further submits that the entire prosecution case hinges upon the circumstance of last seen together, which by itself is too fragile a circumstance to Page No.# 6/22 sustain conviction. Relying upon Bodh Raj @ Bodha vs. State of Jammu and Kashmir, reported in AIR 2002 SC 3164, Ganpat Singh vs. State of Madhya Pradesh, reported in 2017 16 SCC 353, State of Goa vs. Sanjay Thakran, and another reported in 2007 SCC Online SC 312, and Satpal vs. State of Haryana reported in AIR 2018 SC 2142, it is argued that where there exists a considerable time gap between the deceased having been last seen with the accused and the probable time of death, the possibility of intervention by another person cannot be ruled out, and the circumstances lose much of its evidentiary value unless supported by other clinching evidence. 12. According to the learned counsel, the admitted gap of nearly sixteen and a half hours in the present case completely demolishes the prosecution's reliance upon the last seen theory. 13. It is next submitted that the alleged extrajudicial confession is wholly inadmissible inasmuch as the appellant was admittedly in police custody when the alleged confession was made before persons summoned to the police station by the investigating officer. It is argued that such a confession is clearly hit by Sections 25 and 26 of the Evidence Act and no reliance could have been placed thereon. 14. The reconstruction of the alleged occurrence is also assailed on the grounds that it was conducted while the appellant remained in police custody and did not lead to the discovery of any new facts so as to attract Section 27 of the Evidence Act. 15. Referring to the judicial confession recorded under Section 164 Cr.P.C., learned counsel submits that the learned Magistrate may have recorded the confession in accordance with law, nevertheless, the confession is not an unqualified confession of guilt. Placing reliance upon Pyare Lal Bhargava –Vs- The State of Rajasthan reported in AIR 1963 SC 1094, Aghnoo Nagesia v. State of Bihar reported in AIR 1966 SC 119, and Constitution-Bench decisions in Palvinder Kaur vs. State of Punjab, reported in AIR 1952 SC 354 and Nishi Kant Jha v. State of Bihar, reported in AIR 1969 SC 422, it is argued that a confessional statement must ordinarily be read as a whole and the prosecution cannot rely only upon the inculpatory part while Page No.# 7/22 discarding the accompanying exculpatory explanation merely because it is inconsistent with the prosecution case. 16. It is submitted that the appellant consistently denied committing rape or murder and maintained that death was accidental. Learned counsel further submits that the medical evidence merely establishes that death was homicidal but does not identify the perpetrator. Equally, the prosecution has failed to adduce any scientific or forensic evidence connecting the appellant with the commission of the offence. It is argued that falsity of the explanation offered by the appellant cannot by itself become substantive evidence of guilt nor can it supply a missing link in the chain of circumstances. 17. Finally, placing reliance upon Sambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 and Ashok v. State of Maharashtra, reported in 2015 4 SCC 393, learned counsel submits that Section 106 of the Evidence Act does not relieve the prosecution of its primary burden of proving the foundational facts. It is contended that the decision in Trimukh Maroti Kirkan v. State of Maharashtra reported in 2006 SCC Online SC 1047 and relied upon by the prosecution has no application to the present case as the alleged occurrence did not take place within the exclusive privacy of the appellant's house but in an open area accessible to others. 18. It is, therefore, argued that neither Section 106 of the Evidence Act nor the appellant's denial under Section 313 Cr.P.C. can be placed into service to cure the deficiencies in the prosecution evidence. Learned counsel accordingly prays that the conviction and sentence be set aside. 19. Per Contra Ms. B Bhuyan, learned Additional Public Prosecutor, Assam supports the impugned judgment and submits that the learned Trial Court has correctly appreciated the evidence on record. It is argued that the prosecution has succeeded in establishing a complete chain of incriminating circumstances which unerringly point towards the guilt of the appellant. 20. Learned Public Prosecutor further argues that the evidence of PW3 clearly establishes Page No.# 8/22 that the deceased was last seen alive in the company of the appellant shortly before her disappearance. Pressing reliance on Satpal v. State of Haryana, reported in AIR 2018 SC 2142, it is contended that the doctrine of last seen together, when read along with surrounding circumstances, the conduct of the accused and the medical evidence constitute a strong incriminating circumstance capable of sustaining the conviction. 21. It is her contention that judicial confession recorded under Section 164 Cr.P.C. is wholly voluntary and was recorded only after scrupulous compliance with the statutory safeguards. The appellant admitted that he had taken the deceased with him and had subsequently removed her body to the jungle. According to the learned Additional Public Prosecutor, once the explanation of accidental death stands completely falsified by the unimpeded medical evidence, the remaining admissions contained in the confession furnish a vital link in the chain of circumstances. 22. It is lastly submitted that the medical evidence conclusively disproves the appellant's version of accidental death and establishes homicidal strangulation. The conduct of the appellant in removing the body to the jungle and his subsequent conduct are also relied upon as incriminating circumstances. 23. Learned Additional Public Prosecutor further contends that the appellant failed to offer any satisfactory explanation as to how the deceased, who was last seen alive in his company, met with a homicidal death. Placing reliance on Trimukh Maroti Kirkan (supra), it is argued that where incriminating circumstances have been established, and the relevant facts are especially within the knowledge of the accused, the absence of any possible explanation or furnishing a false explanation constitutes an additional link completing the chain of circumstances. It is therefore submitted that the learned Trial Court rightly invoked the principles underlying Section 106 of the Evidence Act. 24. It is accordingly prayed that the conviction recorded by the learned Trial Court be affirmed, the appeal be dismissed, and a death reference be ensured in affirmative. 25. Mr S.S. Barooah, learned Counsel appearing for the informant, adopts the submissions Page No.# 9/22 advanced by learned Additional Public Prosecutor and further submits that evidence on record viewed cumulatively leaves no reasonable doubt regarding the complicity of the appellant. He accordingly prays for confirmation of the conviction and confirmation of the sentence awarded by the learned Trial Court. 26. We have given anxious consideration to the submissions advanced by the learned Counsel for the parties. We have also perused the materials available on record. 27. Before examining the evidence, it deserves to be noticed that the present appeal is not merely an appeal against conviction but also a reference for confirmation of sentence of death. Consequently, this court is under a statutory obligation to independently reappreciate the entire evidence and satisfy itself that both the conviction and sentence are legally sustainable. 28. Having bestowed our anxious consideration to the rival submissions and upon careful examination of the evidence on record, we find that the conviction of the appellant rests entirely upon circumstantial evidence. There is no eyewitness to the actual occurrence. 29. The prosecution seeks to establish the appellant primarily on the basis of: (i) the circumstance of the deceased having been last seen in the company of the appellant (ii) the alleged extra-judicial confession (iii) the judicial confession of the accused recorded under Section 164 Cr.P.C. and (iv) the medical evidence. 30. It is by now well settled that circumstantial evidence is evidence not based on direct eyewitness accounts, but based on evidence from which the guilt of an accused can be inferred. It consists of a chain of facts and events that, when linked together, point conclusively to the guilt of the accused. Unlike direct evidence, circumstantial evidence requires the court to draw inferences. It is equally well settled that the prosecution, while relying on circumstantial evidence, must prove its link in the chain of circumstances beyond a reasonable doubt. If any link is weak or missing, the benefit of the doubt must go to the accused. In Sarad Bridhi Chand (supra), the Hon’ble Apex Page No.# 10/22 Court laid down five golden principles, which are as follows: I. The circumstances from which the conclusion of guilt is to be drawn are to be fully established. II. The fact so established should be consistent only with the hypothesis of guilt of the accused. III. The circumstances should be of a conclusive nature and tendency. IV. They should exclude every possible hypothesis except the one to be proved. V. There must be a complete chain of evidence so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. 31. It is also equally well settled that when relying on circumstantial evidence, the prosecution must establish a complete chain of circumstances, consistent with the hypothesis of guilt. Suspicion, however strong, cannot take the place of legal proof. 32. The Hon’ble Apex Court in Hanumant Vs State of Madhya Pradesh, reported in 1952-2SCC 71, reminded that in cases where the evidence is of a circumstantial nature, the circumstances on which the conclusion of guilt is to be drawn should be fully established in the first instance, and all the facts so established should be consistent only with the hypothesis of guilt of the accused. The chain must be so complete that it rules out any theory other than the guilt of the accused. 33. In criminal jurisprudence, circumstantial evidence is admissible and can lead to conviction, but only if it satisfies a strict standard as recorded hereinabove. The prosecution has the onus to eliminate all reasonable hypotheses except that of the accused’s guilt. Any gap in the evidentiary chain mandates acquittal. This principle is based on another important principle: the liberty of an individual cannot be curtailed unless guilt is established with absolute certainty, even when relying solely on circumstantial evidence. 34. To summarise, what the prosecution must establish is a complete and unbroken chain of circumstances, which are established and point only to the guilt of the accused, and Page No.# 11/22 it excludes every other possible hypothesis. It is seen from the different judicial pronouncements that the courts in India, while dealing with circumstantial evidence, follow a conservative and cautious approach, especially in cases involving a death sentence or life imprisonment, motive-based prosecution and where scientific and forensic evidence is missing or inconclusive. 35. Guided by the aforesaid principles, we shall now examine whether every circumstance relied upon by the prosecution has been independently established and whether all circumstances cumulatively form a complete and unbroken chain pointing only towards the guilt of the appellant. 36. The prosecution seeks to establish the guilt of the appellant principally on the basis of (i) last scene circumstance, (ii) extrajudicial confession, (iii) judicial confession under section 164 CrPC, (iv) Medical and forensic evidence and (v) the conduct of the appellant. Each of these circumstances deserves independent examination. 37. The prosecution has first relied upon the circumstance that the deceased was last seen in the company of the appellant. In this regard, the first layer of evidence is of PW-1, PW-2, PW-3 and PW-11. 38. A careful scrutiny of the evidence of PW-1 suggests that she is not a last seen witness. Her evidence is confined to the fact that the victim was playing in front of her house till about 12.30 PM; the accused was also playing marbles with other children; after taking food, the victim and the accused left her house after which the victim went missing. She expressly admits that she did not see how the victim girl went missing. Further, her statement that she later heard the accused had killed the victim is pure hearsay, and she admits that this fact was never stated either before the police or the Magistrate. She admits that 5/6 other children were also playing with the accused; therefore, it establishes that the accused was not alone with the victim at that stage. The evidence of PW-1 merely proves that both the accused and victim, along with some other children, were present in the same locality shortly before the victim Page No.# 12/22 disappeared. She does not prove that the victim was last seen exclusively in the company of the accused. 39. The PW-2 states that the victim came to her house for food; the accused sat in her veranda; after eating, the victim went outside; the accused followed her. However, she candidly admits that she is unaware of where the accused thereafter took the victim. The most important part of her evidence is that her statement that the accused was taking the victim towards the jungle is not based on her own observation; rather, she deposed that while searching for the victim, PW-3 informed them that the accused was taking the victim by holding her hand towards the jungle. Therefore, on this crucial aspect, the testimony of PW-2 is hearsay. Though this witness deposed that she later came to know that the accused confessed to killing the victim, she did not disclose or state when, in what circumstances, before whom such confession was made or that she herself heard the confession. This again is hearsay and has no independent evidentiary value. 40. To summarise the evidence of PW-1 and PW-2, they do not materially advance the prosecution case. Neither of them witnessed the appellant taking away the deceased. Their knowledge is admittedly derived from what they subsequently learnt from others. Their evidence, therefore, remains hearsay in so far as the circumstance of last seen is concerned. Thus, neither PW 1 nor PW 2 prove that the deceased was last seen in the exclusive company of the appellant. Their evidence to the extent it attributes the deceased having been taken towards the Jungle by the appellant, is admittedly hearsay and therefore, incapable of establishing the last scene circumstance. 41. PW-3 is the sole witness on whom the prosecution relies for the “last seen circumstances”. She states that about 01:00 PM, she saw the accused holding the victim’s hand while both were walking behind her. She later heard the victim asking the accused, “Where are you taking me?” Page No.# 13/22 This is undoubtedly the prosecution’s strongest piece of evidence. Being so, this evidence deserves deeper scrutiny. 42. According to her, she never informed anyone immediately of such an incident; she went to her daughter’s house, remained there for three days, and did not tell anyone in the village about what she had allegedly seen. If she had genuinely seen a young girl being taken away while protesting, her complete silence for three days is an unnatural circumstance affecting the weight of her testimony. It is clear from her deposition that she did not know what happened thereafter. An interesting feature of her evidence is that she says she knew the accused earlier, but at the relevant time she did not know his name and learnt it later. This does not necessarily destroy her evidence, but it is a factor to be weighed when assessing reliability. This witness undoubtedly establishes that the appellant and the deceased were seen together shortly before the victim went missing. However, admittedly, she did not disclose this fact either to the family member of the deceased or to any villagers immediately after the victim went missing. Even according to the Investigating Officer (PW-19), her statement came to be recorded only after the appellant had already been apprehended. Although such conduct by itself may not justify rejection of her testimony, it is nevertheless a circumstance which requires the court to seek assurance from other independent evidence before treating her testimony as the sole foundation for sustaining a conviction. Even if the evidence of PW-3 is accepted in its entirety, it establishes no more than the circumstance that the appellant was seen accompanying the deceased about 01:00 PM on 26.02.2020. The prosecution has not adduced any direct evidence as to what transpired thereafter. The dead body was recovered only in the early hours of the following morning on 27.02.2020. The medical evidence also did not establish the precise time of death with such Page No.# 14/22 certainty as would completely bridge the time gap between the last seen circumstance and the homicidal death. To be precise, even assuming the PW-3 is wholly reliable, she only proves that both the accused and victim were together at about 01:00 PM on 26.02.2020. The body was recovered only at 05:30 AM on 27.02.2020, creating a gap of roughly 16 ½ hours. Unless the medical evidence fixes the death reasonably close to 01:00 PM and the prosecution excludes the possibility of intervention by any other person, this circumstance by itself becomes weak. 43. The law regarding last seen theory is equally well settled. The circumstance assumes significance only where the interval between the accused being last seen with the deceased and the probable time of gap is so narrow that the possibility of intervention by any other person is completely excluded. The circumstance becomes weak and requires support from other independent evidence. In the present case, even accepting the evidence of PW3 in its entirety, there exists a time gap of nearly 16 and a half hours before the recovery of the body. Neither the medical evidence nor other evidence excludes the possibility of intervention of any other person. Consequently, the circumstance of last seen cannot by itself become a safe foundation for conviction. In this regard, reference may be made to Bodh Raj @ Bodha (supra), Satpal (supra), Ganpat Singh (supra) and Sanjay Thakran (supra). 44. Another star witness of the prosecution is PW-11. She never claims that she herself saw the accused taking away her daughter. According to her testimony, the victim took lunch about 12:30 PM and went out to play; about 03:00 PM she started searching for her daughter; during the search, PW-3 informed her that the accused had taken the victim away; thereafter, another lady also told her that the accused had taken the victim by holding her hand. Thus, the most incriminating part of her testimony is entirely hearsay. There is also inconsistency in her testimony with the evidence of PW-3. As recorded hereinabove, according to PW-3, she saw the accused holding the hand of Page No.# 15/22 the victim while they were walking behind her. PW-11 attributes a different version to PW-3. According to PW-11, PW-3 told her that the accused crossed the road by lifting the victim on his chest. These are materially different versions. If PW-3 had indeed narrated the incident to PW-1 on the same day, i.e. on 26.02.2020, this discrepancy assumes significance for the reason that it relates to the very manner in which the accused was allegedly taking the child. The PW-11 also introduces a new witness, i.e., the wife of Sanjib Gaur, who told her that the accused was taking the victim by holding her hand; however, the prosecution did not examine this vital witness, which may legitimately draw an adverse inference for the reason that the prosecution withheld an important eyewitness whose evidence could have been one of the best pieces of evidence on the point. 45. The prosecution appears to have attempted to corroborate PW-3 through PW-11; however, this is legally impermissible because PW-11 is merely repeating what PW-3 allegedly told her. Evidence does not become stronger merely because one witness repeats another witness's statement. Repetition of a hearsay statement by another witness does not elevate such evidence into substantive evidence. 46. The prosecution next relies upon the alleged extra-judicial confession made before PW- 5, PW-6, PW-7 and PW-8. Their evidence, however, unmistakably reveals that the appellant was already in police custody when they were summoned to the police station. It has also come in the evidence that the police had called those witnesses to the police station and the appellant was asked to narrate the occurrence in their presence. Such confession cannot be regarded as a voluntary disclosure made before an independent person. Being a statement allegedly made while the appellant was in police custody, its admissibility is clearly hit by Sections 25 and 26 of the Indian Evidence Act, 1872, Page No.# 16/22 except to the limited extent permissible under Section 27 of the Evidence Act. Moreover, the versions narrated by these witnesses are not entirely consistent with each other on material particulars. In our considered opinion, the learned Trial Court was not justified in placing reliance upon such evidence. 47. The prosecution has also relied upon the reconstruction of the occurrence conducted in the presence of an Executive Magistrate and other witnesses. The evidence on record leaves little room for doubt that such reconstruction was also carried out while the appellant remained in police custody. No discovery of any new fact pursuant to such exercise has been proved. Consequently, the reconstruction and the narration allegedly made by the appellant during such exercise possess no independent evidentiary value for proving the guilt of the appellant. 48. The principal circumstance which, therefore, survives for consideration is the judicial confession recorded under Section 164 of Cr.P.C. 49. The prosecution case substantially rests upon the judicial confession recorded under Section 164 Cr.P.C. The learned Trial Court has treated the same confession as furnishing the principal link in the chain of circumstances. It is, therefore, necessary to examine not merely its admissibility but also its true evidentiary value. The evidence of the learned Magistrate (PW-20) inspires confidence that procedural safeguards contemplated under section 164 Cr.P.C were substantially complied with. 50. The appellant remained in judicial custody, was granted time for reflection and was cautioned that he was not bound to make any confession. We, therefore, find no reason to discard the confession on the ground that it was involuntary. The difficulty, however, lies elsewhere. 51. It is well settled that a voluntary judicial confession made in an appropriate case forms Page No.# 17/22 the sole basis of conviction. Nevertheless, before acting upon such confession the court must be satisfied that it is voluntary, truthful and inspires complete confidence. (Ref: Pyare Lal Bhargava –Vs- The State of Rajasthan reported in AIR 1963 SC 1094) 52. A careful reading of the confession shows that it is not an unqualified confession of guilt; it is partly inculpatory and partly exculpatory. The appellant admitted that he had taken the child to the nearby Jujube tree. He further admitted that after the child sustained injuries in attempting to pluck the fruits by throwing a stick, the stick accidentally struck the forehead of the child. Believing that she had died, he carried her towards a nearby pond, sprinkled water on her face and thereafter, out of fear, removed the body to the nearby jungle. Throughout the statement, the appellant denied having committed any sexual assault and consistently maintained that the death was accidental. Thus, while the appellant admitted certain surrounding circumstances, he did not admit either homicidal strangulation or sexual assault. It is true that the medical evidence completely rules out the explanation of accidental death furnished by the appellant. The doctor categorically opined that the death was caused by asphyxia resulting from strangulation. The injuries noticed during post-mortem examination are wholly inconsistent with the explanation that the child died because of an accidental blow by a stick. To that extent, the explanation offered by the appellant stands falsified by the medical evidence. 53. The question, however, still remains whether after discarding the explanation of accidental death, the court can safely rely upon the remaining admission contained in the confession to sustain conviction. 54. The confession contains both inculpatory and exculpatory elements. The law relating to such statements is no longer res integra. 55. In Palvinder Kaur vs. State of Punjab (supra), the constitution bench observed that a Page No.# 18/22 confessional statement should ordinarily be read as a whole and the prosecution cannot rely only upon the inculpatory portion while discarding the exculpatory part merely because it is inconvenient. The principle was subsequently explained in Nishi Kant Jha (supra), where the Constitution Bench clarified that where the exculpatory portion is demonstrated to be false by independent evidence, the court is not precluded from acting upon the remaining portion of the statement. The controlling principle, however, is that falsity of the exculpatory part does not dispense with the prosecution's obligation to independently establish every essential ingredient of the offence. Even after rejecting the explanation offered by the accused, the court must independently satisfy itself that the remaining evidence unerringly establishes the guilt of the accused beyond reasonable doubt. 56. Viewed from that perspective, the prosecution case, after excluding the inadmissible extra-judicial confession and the reconstruction evidence, substantially rests upon three circumstances, namely, (i) the appellant was last seen with the deceased; (ii) that the appellant admitted taking the child to the nearby Jujube tree; and (iii) subsequently removed the body to the jungle and that the death was homicidal. 57. In our opinion, these circumstances undoubtedly create a strong suspicion against the appellant. Nevertheless, suspicion, however grave and strong, cannot substitute proof. The medical evidence undoubtedly establishes that the deceased was strangulated to death. It does not, however, identify the person who caused such strangulation. 58. The evidence of PW-3 establishes that the appellant was seen accompanying the deceased about 1:00 pm on 26.02.2020. It does not establish that the deceased continued to remain in his exclusive company till the time of her death. The prosecution has also not produced any forensic evidence connecting the appellant with the homicidal act. The investigating officer admitted that the FSL report did not reveal any incriminating material connecting the appellant with the occurrence. No weapon was recovered. No incriminating article belonging to the appellant was Page No.# 19/22 recovered from the place of occurrence. The alleged sexual assault also did not receive any meaningful forensic support during investigation. 59. Learned Additional Public Prosecutor also relied upon the conduct of the appellant allegedly removing the body. Such conduct does undoubtedly raise suspicion but cannot by itself establish the commission of murder. At the highest, it may constitute a separate incriminating circumstance but cannot substitute proof of the homicidal act itself 60. The prosecution seeks to bridge these deficiencies by relying upon the admissions contained in the judicial confession itself. 61. In our considered opinion, that approach presents a serious difficulty. Once the explanation of accidental death is discarded as being inconsistent with medical evidence, the remaining admissions merely establish that the appellant had taken the child to a nearby place and thereafter removed the body. Those circumstances undoubtedly constitute incriminating conduct. They do not, however, by themselves establish that it was the appellant who committed the homicidal strangulation. Thus, the missing link between the admitted conduct of the appellant and the homicidal act still remains unsupported by independent evidence. 62. The conduct of the appellant in abandoning the body instead of reporting the matter to the villagers or the police is certainly unnatural and may legitimately give rise to grave suspicion. However, criminal courts cannot convict solely because the conduct of an accused appears suspicious or morally indefensible. The prosecution is still required to establish the guilt of the accused by legally admissible evidence justifying the standard of proof beyond reasonable doubt. 63. Reliance placed upon section 106 of the Evidence Act also does not carry the prosecution's case any further. Section 106 does not relieve the prosecution of its primary burden of establishing the foundation of facts. Only after such fact has been established, then the burden shifts Page No.# 20/22 upon the accused to explain facts, especially within his knowledge. The present case is distinguishable from Trimukh Maroti Kirkan (supra), where the occurrence had taken place inside the matrimonial home; here the prosecution itself failed to establish that the accused remained in the Exclusive Company of the appellant till the time of death. 64. In these circumstances, Section 106 of the Evidence Act cannot be pressed into service to bridge the gap left by the prosecution. To do so would amount to shifting the legal burden of proving guilt from the prosecution to the accused, a course impermissible in criminal jurisprudence. 65. The appellant, when examined under Section 313 Cr.P.C, denied the incriminating circumstances put to him. It is true that in the judicial confession recorded earlier under Section 164 Cr.P.C, he had offered an explanation that the deceased died accidentally due to a blow from a stick. As already discussed, the said explanations stand disproved by medical evidence. Nevertheless, the rejection of that explanation does not automatically establish the prosecution case. 66. It is equally well settled that a false explanation or a false defence is not substantive evidence of guilt. False evidence may provide an additional link in the chain of circumstances, where the prosecution has otherwise succeeded in establishing a complete chain pointing unerringly towards the guilt of the accused. It cannot, however, be utilised to supply a missing link or to cure the inherent deficiencies in the prosecution evidence. In the present case, the prosecution seeks to derive the ultimate inference of guilt from the falsity of the appellant's explanation regarding the cause of death. 67. Such an approach, in our considered opinion, overlooks the settled distinction between an additional incriminating circumstance and substantive proof of guilt. Even after discarding the appellant's explanation as false, the prosecution is still required to establish by independent and legally admissible evidence that it was the appellant who committed the homicidal strangulation. The essential link is conspicuously absent in the present case. Page No.# 21/22 68. We are therefore unable to draw any adverse inference either from the appellant's denial under section 313 Cr.P.C or from the falsity of the explanation offered by him in judicial confession. The prosecution, having failed to establish a complete chain of circumstances, neither section 106 of the Evidence Act nor the appellant's answer under section 313 Cr.P.C can be invoked to fill the evidentiary gaps. The burden which lay throughout upon the prosecution has remained undischarged. 69. Upon cumulative assessment of the entire evidence, the prosecution has succeeded in proving only three circumstances, namely (i) that the deceased met with a homicidal death, (ii) that victim was seen in the company of the appellant several hours (approximately 16 & half hours) before the recovery of the body and (iii) that the appellant admitted having had company with victim shortly after PW-3 saw both the deceased and the accused. Evidence that it was the appellant who committed the homicidal strangulation or alleged sexual assault, the chain of circumstances is incomplete and does not exclude every reasonable hypothesis consistent with innocence. The prosecution has failed to discharge even its primary burden to establish the foundational facts to shift the burden upon the accused to explain the facts, especially within his knowledge. 70. The circumstances proved undoubtedly give rise to grave suspicion against the appellant; nevertheless, suspicion, we repeat, however grave and strong, cannot take the place of legal proof. The appellant is therefore entitled to the benefit of reasonable doubt. 71. Accordingly, the conviction and sentence imposed upon the appellant, Bikram Harijan @ Chandan Harizon, by the learned Additional District & Sessions Judge (FTC), Hojai in Spl (P) Case No. 07(P)/2020 corresponding to Hojai PS Case No. 164/2020, is set aside. 72. The appellant is acquitted of the charges by extending the benefit of doubt. 73. The accused, Bikram Harijan @ Chandan Harizon, shall be released forthwith, if not required in connection with any other case. Page No.# 22/22 74. Consequently, the Death Reference No. 02/2021 is answered in the negative and stands rejected, and Criminal Appeal No.80/2021 stands allowed. 75. TCR be returned. 76. While parting with the records, it is observed that the learned Trial Court had already invoked the provisions relating to victim compensation and directed the District Legal Services Authority, Hojai, to consider and process the claim of the victim’s family in accordance with the law applicable to the victim compensation scheme as envisaged under section 357-A Cr.P.C. 77. The direction issued by the trial court shall accordingly remain undisturbed. It is, however, expected that the concerned authority shall ensure expeditious compliance so that the intended rehabilitative support reaches the beneficiaries without undue delay, if such compensation has not already been paid. JUDGE CHIEF JUSTICE Comparing Assistant